1 DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA

3 SUGAR CANE GROWERS COOPERATIVE OF FLORIDA, )

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

4 -and- )

FLORIDA SUGAR CANE LEAGUE, INC., UNITED )

5 STATES SUGAR CORPORATION, and NEW HOPE )

SOUTH, INC., )

6 -and- )

FLORIDA FRUIT AND VEGETABLE ASSOCIATION, )

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

INC., and HUNDLEY FARMS, INC., )

8 )

Petitioners, )

9 )

vs. ) DOAH CASE NOS.

10 ) 92-3038

SOUTH FLORIDA WATER MANAGEMENT DISTRICT, ) 92-3039

11 ) 92-3040

Respondent, ) (Consolidated)

12 )

and )

13 )

MICCOSUKEE TRIBE OF INDIANS, THE UNITED )

14 STATES OF AMERICA, FLORIDA DEPARTMENT OF )

ENVIRONMENTAL REGULATION, and FLORIDA )

15 WILDLIFE ASSOCIATION, )

)

16 Intervenors. )

) _____________________________________________

18 HEARING BEFORE: HONORABLE J. STEPHEN MENTON

HEARING OFFICER

DATE: FRIDAY, JANUARY 7, 1994

20 (10:00 A.M. - 1:02 P.M.)

21 LOCATION: HEARING ROOM 2, DESOTO BUILDING

1230 APALACHEE PARKWAY

22 TALLAHASSEE, FLORIDA

23 REPORTED BY: SUE HABERSHAW JOHNSON

CERTIFIED COURT REPORTER

24 REGISTERED PROFESSIONAL REPORTER

NOTARY PUBLIC

1 APPEARANCES:

2 Representing Petitioners, Sugar Cane Growers

Cooperative of Florida, Roth Farms, Inc.,

3 and Wedgworth Farms, Inc.:

4 WILLIAM H. GREEN, ESQUIRE

GARY PERKO, ESQUIRE

5 CAROLYN RAEPPLE, ESQUIRE

ROBERT P. SMITH, ESQUIRE (Via Telephone)

6 Hopping, Boyd, Green & Sams

123 South Calhoun Street

7 P. O. Box 6526

Tallahassee, Florida 32314

8 (904-222-7500)

9 Representing Petitioners, Florida Sugar Cane

League, Inc., United States Sugar Corporation,

10 and New Hope South, Inc.:

11 RICK J. BURGESS, ESQUIRE

WILLIAM L. EARL, ESQUIRE

12 Peeples, Earl & Blank, P.A.

One Biscayne Tower, Suite 3636

13 Two South Biscayne Boulevard

Miami, Florida 33131

14 (305-358-3000)

15 -and-

16 WILLIAM L. HYDE, ESQUIRE

Peeples, Earl & Blank, P.A.

17 Suite 350

215 South Monroe Street

18 Tallahassee, Florida 32301

(904-681-1900)

Representing Petitioners, Florida Fruit and

20 Vegetable Association, Lewis Pope Farms,

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

21 Hundley Farms, Inc.:

22 KENNETH F. HOFFMAN, ESQUIRE

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

23 Suite C

2700 Blair Stone Road

24 Tallahassee, Florida 32301

(904-877-0099)

1 APPEARANCES, CONTINUED:

2 Representing Intervenor, The United States

of America:

SUZAN HILL PONZOLI, ESQUIRE

4 THOMAS A. WATTS FITZGERALD, ESQUIRE

Assistant United States Attorney

5 Southern District of Florida

Third Floor

6 99 East 4th Street

Miami, Florida 33138

7 (305-536-4425)

8 -and-

9 MIKE REED, ESQUIRE (Via Telephone)

STEVE MC FARLAND, ESQUIRE (Via Telephone)

10 Deputy Assistant Attorney General

United States Department of Justice

11 Environmental & Natural Resources Division

General Litigation Section

12 Room 879, 601 Pennsylvania Avenue

Washington, D.C. 20044

13 (202-272-4016)

14 Representing Intervenor, Florida Department of

Environmental Protection:

LEE M. KILLINGER, ESQUIRE

16 Assistant General Counsel

Department of Environmental Regulation

17 640 Twin Towers Office Building

2600 Blair Stone Road

18 Tallahassee, Florida 32399-2400

(904-488-9730)

Representing Respondent, South Florida Water

20 Management District:

21 PAUL L. NETTLETON, ESQUIRE

R. BENJAMINE REID, ESQUIRE

22 Schnobrick & Kaufman, Ltd.

400 International Place

23 100 Southeast Second Street

Miami, Florida 33131

24 (305-539-7222)

25 -and-

1 APPEARANCES, CONTINUED:

2 Representing Respondent, South Florida Water

Management District: (Continued)

RUTH P. CLEMENTS, ESQUIRE (Via Telephone)

4 VALERIE BOYD (Via Telephone)

Assistant General Counsel

5 South Florida Water Management District

P.O. Box 24680

6 3301 Gun Club Road

West Palm Beach, Florida 33416-4680

7 (407-686-8800)

8 Representing Intervenor, Miccosukee Tribe of

Indians:

DEXTER W. LEHTINEN, ESQUIRE (Via Telephone)

10 Spencer and Klein, P.A.

801 Brickell Avenue, Suite 1901

11 Miami, Florida 33131

(305-374-7700)

Representing Intervenor, Florida Wildlife

13 Federation:

14 DAVID G. GUEST, ESQUIRE

LORI ERICKSON, ESQUIRE

15 111 South Martin Luther King, Jr., Blvd.

P.O. Box 1329

16 Tallahassee, Florida 32302

(904-681-0031)

* * * * *

ALSO PRESENT:

JEFFREY J. WARD (Via Telephone)

20 GEORGE WEDGWORTH (Via Telephone)

OTIS WRAGG

* * * * *

1 INDEX

2 ITEM PAGE

3 HEARING COMMENCED . . . . . . . . . . . . . . . . . . 5

4 HEARING CONCLUDED . . . . . . . . . . . . . . . . . . 114

5 CERTIFICATE OF REPORTER . . . . . . . . . . . . . . .115

6 * * * * *

1 PROCEEDINGS

2 (WHEREUPON, THE HEARING COMMENCED AT 10:00 A.M., AT

3 WHICH TIME MS. CLEMENTS, MR. HOFFMAN, MR. MC FARLAND,

4 MR. WARD, MR. SMITH, AND MR. WEDGWORTH WERE ABSENT.)

5 HEARING OFFICER: Is everybody here? Let's take a

6 roll call of who is here. If they are not on the phone

7 by then, we can do that. Petitioners? We'll begin with

8 the Cooperative.

9 MR. GREEN: Yes, Mr. Menton, Bill Green, Carolyn

10 Raepple, and Gary Perko here, and we believe Bob Smith

11 will join on the telephone conference.

12 HEARING OFFICER: And the League?

13 MR. EARL: Bill Earl and Bill Hyde, representing

14 the Sugar Cane League.

15 HEARING OFFICER: Okay, Fruit and Vegetable?

16 MR. EARL: Mr. Hoffman indicated he was coming.

17 HEARING OFFICER: He had called my office on the

18 time, so I expect he will be here soon.

19 Okay, South Florida Water Management District?

20 MR. REID: Ben Reid and Paul Nettleton.

21 HEARING OFFICER: Okay. And for the U. S.

22 Government?

23 MS. PONZOLI: I am Suzan Hill Ponzoli, and Tom

24 Watts Fitzgerald, also known as Fitzpatrick.

25 HEARING OFFICER: For the Florida Department of

1 Environmental Protection?

2 MR. KILLINGER: Lee Killinger.

3 HEARING OFFICER: For the conservation group?

4 MR. GUEST: David Guest and Lori Erickson.

5 HEARING OFFICER: Okay, the Miccosukee Indians?

6 Did I miss anybody? I think that is all the

7 parties.

8 MR. KILLINGER: Mr. Hearing Officer, the assistant

9 to Mr. Lehtinen advised us he would be participating by

10 phone, so he is probably trying to call in.

11 HEARING OFFICER: Okay. Maybe what I'd better do

12 is make sure they understand to route them down this

13 way. Let's take a short break.

14 If the phone rings all you have to do is hit this

15 conference button up here, right here, and then they are

16 on. Let's take a short break.

17 (WHEREUPON, THE HEARING WAS RECESSED FROM

18 10:02 A.M. TO 10:04 A.M., AT WHICH TIME MR. SMITH AND

19 MR. WEDGWORTH WERE PRESENT.)

20 TELEPHONE OPERATOR: Bob Smith?

21 HEARING OFFICER: Is Mr. Smith on?

22 MR. SMITH: Yes.

23 TELEPHONE OPERATOR: Dexter Lehtinen?

24 MR. LEHTINEN: I am here.

25 TELEPHONE OPERATOR: Thank you. And Mr. Wedgworth?

1 MR. WEDGWORTH: Yes.

2 TELEPHONE OPERATOR: Our number is 1-800-232-1234,

3 and the I.D. number is W as in "William", R as in

4 "Robert", 37297.

5 HEARING OFFICER: Operator, I am not sure that I

6 heard Mr. Smith. Is he on line?

7 MR. SMITH: I am here. Thank you.

8 HEARING OFFICER: Okay.

9 (WHEREUPON, MR. HOFFMAN ENTERED THE HEARING ROOM.)

10 HEARING OFFICER: Okay.

11 TELEPHONE OPERATOR: Okay?

12 HEARING OFFICER: Okay. Thank you.

13 TELEPHONE OPERATOR: Thank you for using AT&T.

14 HEARING OFFICER: Okay. For those of us who just

15 joined us by telephone conference, we are just beginning

16 the hearing now. Mr. Hoffman is also here on behalf of

17 the Fruit and Vegetable Growers.

18 Let me start out by trying to summarize the reason

19 why I think we are here today or at least the reason why

20 I set this hearing, and then we can kind of take it from

21 there.

22 The main reason that I wanted to set the hearing

23 today was to try to explore a little bit further some of

24 the issues that I raised at the last hearing we had

25 about the possibility of segmenting the final hearing in

1 this case.

2 I know that I raised those issues somewhat out of

3 the blue. Most of you were in a mediation mode at that

4 point and had not gotten back into the litigation mode.

5 But those are issues that I have been thinking

6 about in terms of the final hearing from the time that

7 we had originally begun in litigation, and I thought

8 that it was appropriate to raise them and begin

9 discussing them if we are back in full litigation, which

10 it appears we are.

11 I think that it is important to resolve some of

12 those issues up front, because they impact significantly

13 upon the discovery and also upon general scheduling

14 issues, so it thought it was important to come to some

15 resolution and to some understanding between everybody,

16 so that we can plan this discovery schedule and plan the

17 final hearing accordingly.

18 So before the discovery schedule got set in stone I

19 thought it was important to get this issue discussed to

20 give everybody an opportunity to reflect on it and get

21 their thoughts together and see if we can discuss it a

22 little bit more.

23 I have received yesterday afternoon an objection

24 that was filed by the Cooperative to hearing

25 bifurcation, and I have also received from the League

1 creatively styled as a memorandum in support of an

2 expedited and unified hearing, and I have been through

3 both of those documents.

4 Those are the only two I have received from the

5 last hearing.

6 I think that they raised some legitimate points

7 that should be discussed.

8 I don't think we really need to go back through the

9 specifics of what those are, but I have been through

10 them, and I understand the points raised.

11 Let me make a couple of points at the outset before

12 I give everybody an opportunity to have their input.

13 First of all, I understand that both the

14 Cooperative and the League have raised some questions as

15 to the authority, my authority to bifurcate segments the

16 hearing, and, you know, I understand those concerns. I

17 don't agree with those.

18 I think the rules of the Division of Administrative

19 Hearings, in particular Rule 60Q-2.024, specifically

20 gives me discretion to do what I think is necessary in

21 order to bring this case to a just decision and an

22 efficient resolution of the matter.

23 So the idea of segmenting or breaking up the

24 hearing into different parts is nothing new. I have

25 done it in several other cases in the past, and it is

1 used frequently, so in terms of the general authority

2 issue I think that that is simply a matter of trying to

3 handle the case the way that I see best.

4 I have used a segmentation or breaking down of a

5 case in several different matters, and I have done it

6 several different ways.

7 I have done it where I have done separate

8 recommended orders on particular issues when they were

9 very clearly isolated and could be broken down that way,

10 and I have done it where we have taken adjournments

11 during the hearing in order to allow parties further

12 preparation time or discovery time or whatever is

13 necessary and then reconvened the hearing and ending up

14 with one unified recommended order.

15 It can be done any number of ways. I am certainly

16 willing to listen to the concerns of all the parties as

17 to what they think is appropriate.

18 I think that as I indicated before from the very

19 time that I first got involved in the case I have always

20 been somewhat in awe of the complexity of the issues

21 that are involved, and it has always concerned me as to

22 how I would be able to conduct a hearing and assimilate

23 the information that will be thrown out during the

24 hearing.

25 For most of the attorneys that are involved, you

1 have been working on this case for five years and on a

2 full-time basis, and by the contrary I think my

3 involvement is by necessity much more limited. This is

4 simply one of about 80 other cases that I am handling,

5 and as we get into the hearing mode I will have to get

6 rid of some other cases that I have and focus solely on

7 this, and I have discussed this with the internal

8 parties, and I think that can be done.

9 But, you know, one of the strengths of the process

10 we have in this kind of thing is you have an independent

11 Hearing Officer. One of the weaknesses is you have a

12 Hearing Officer who has not been involved to the same

13 extent that you have, so there will be a learning curve

14 by the time we finally get to hearing.

15 Over the last two years obviously I have learned a

16 lot about the case, both through the SWIM plan and the

17 exhibits, and I have heard some evidence on various

18 issues that have come up, so I have some grasp of some

19 of the concepts, but there is going to be a large

20 learning curve, and I think just from my own perspective

21 in terms of trying to figure out to best handle this

22 case I am going to need some time during the hearing

23 process to begin to go through exhibits as they come in,

24 to begin to understand some of the scientific issues

25 that are clear, and to just digest a lot of the things

1 that I know you will be throwing at me.

2 Again that's one of the weaknesses of the system,

3 but in some ways it is probably one of the strengths,

4 too. So that is just by its very nature inevitable.

5 Certainly in a case of this magnitude I don't know

6 any other way around it except to build in some time in

7 there in order to let my brain cool off and try and

8 figure out what you all are giving to me and also to

9 give the attorneys an opportunity to regather their

10 thoughts, etcetera.

11 In that regard I think I have heard a lot of

12 different things since the beginning of the case as to

13 what the ultimate hearing will entail. I have heard

14 estimates from 20 weeks to eight weeks, and I don't know

15 where the truth is, and I don't know whether anybody

16 knows, and that's one of the things we probably should

17 get a better feel on today, is to what are we

18 realistically looking at in terms of the final hearing.

19 I think that some of the concerns that were raised

20 by both the League and the Cooperative, while they are

21 legitimate concerns, I don't really feel that there is a

22 sufficient basis for not segmenting the hearing or

23 breaking it down.

24 In particular the League I think at one point

25 raised the issue that may be precluded by collateral

1 estoppel or allow the case to rest on issues in

2 subsequent hearing of remedies.

3 That is not going to happen if we are clear about

4 how we are segmenting the case. I will not preclude

5 anybody simply because you could have raised it during

6 the last hearing, I'm just not going to run it that way,

7 and similarly I think the Coop had raised the issue that

8 the bifurcation implied the fact finding as by law with

9 a jury would prevail in the first hearing, and law and

10 policy would apply in the second. Well, that's not what

11 I am intending to do at all. I do not intend to break

12 it down quite that clearly.

13 I think the Cooperative also raised the issue that

14 you could not address any question of causation until

15 you elaborate the problem by locating the base line from

16 which current conditions are set to the Department

17 creating the, quote, problem.

18 That's exactly the type of issue that I would think

19 you would all be addressing at the initial stage of the

20 hearing.

21 I don't intend to preclude the parties from getting

22 into those issues if we break it down.

23 Having said that, I think that there are a couple

24 of concerns that I have regarding bifurcating or

25 segmenting. When I say bifurcating, I do not want to

1 limit myself. We may end up splitting it up into more

2 than two parts if there is a logical way to do it, or

3 try to figure that out. I am open to suggestions, and I

4 would just like to hear input.

5 But in terms of segmenting the hearing, there are

6 some concerns that I have that I wanted to voice and get

7 input from the various parties on.

8 The first concern I have by adopting a segmented

9 approach, we may be further postponing determination of

10 what the ultimate strategies are that we are litigating

11 over, and this has been a source of frustration for me

12 throughout the course of this proceeding.

13 We have several times raised the issues as to

14 whether we are going to go to hearing on the strategies

15 set forth in the SWIM plan that was adopted back in

16 March of '91 or whether we were going to go to hearing

17 on some alternative plan that has developed as a result

18 of litigation or whether we were going to go to hearing

19 on some other strategy that has yet to be developed.

20 That is the notion of the moving target that I have

21 talked about. I sometimes feel we do not know exactly

22 what we are shooting at. For those who are challenging

23 the plan it is a very legitimate concern as to what are

24 we going to hearing on, because we don't know what

25 strategy the District is ultimately proposing.

1 So one of the concerns I have is that if I go with

2 the segmenting approach I may be exacerbating that

3 problem by allowing even further postponement of a

4 determination as to what the ultimate strategies are.

5 So I throw that out for input from all of the

6 parties.

7 The second concern that I have in terms of

8 segmenting is that when I originally raised the issue

9 last week I raised it with the idea that there was some

10 consistency on the part of the proponents of the plan as

11 to the existing conditions, the nature of the problem,

12 the reasons for the conditions, some of those issues

13 that are set forth in the early pages of the SWIM plan,

14 and I thought that a lot of those issues had been out

15 there for quite some time, that there had been a great

16 deal of testing done, a great deal of discovery

17 conducted, and that those issues may be more ripe to go

18 to hearing than issues regarding the ultimate

19 strategies.

20 So that was the original thinking that I had.

21 One of the things that was raised in the brief that

22 was filed by the League was a reference to the federal

23 task force, and at least an insinuation that there may

24 be not so much consistency as to the nature and cause of

25 the problems as I had been thinking.

1 And if that's the case, then I think it does raise

2 some question in my mind as to whether or not those

3 issues are ripe or can be segmented out at this time or

4 whether we are dealing with a moving target in that area

5 as well.

6 So those are some of the concerns that came to me

7 in thinking about this after the last hearing, and some

8 of the things that I think we need to discuss today,

9 because I think it will impact upon the way we go about

10 discovery schedules and final hearing schedules.

11 Now having raised those, before we get into those,

12 are there any developments or any new matters that

13 anybody needs to make me aware of at this point in time,

14 or are we back on full speed ahead in the litigation

15 mode?

16 MS. PONZOLI: Full speed.

17 HEARING OFFICER: That's what I was afraid of. I

18 had my fingers crossed.

19 Okay. Well, having said those issues, let me start

20 with the petitioners. I will give petitioners an

21 opportunity to respond to some of the matters that I

22 have raised and to elaborate further on the memoranda

23 that have been filed.

24 Mr. Green, do you want to start?

25 MR. GUEST: Yes, Mr. Menton, before I do I would

1 like to ask if Bob Smith would like to respond to any of

2 the remarks concerning the memorandum that we filed.

3 HEARING OFFICER: All right. Mr. Smith?

4 MR. SMITH: Yes, sir.

5 HEARING OFFICER: Okay. Do you have any response

6 or input you wanted to add?

7 MR. SMITH: No, sir. I am content with what we

8 wrote in the memorandum. I think the response to it was

9 full and fair, and I think if we thought about meeting

10 the logistical demands through the staging, that's the

11 term I prefer, staging of the hearing in terms of

12 periods of time followed by periods of regathering, that

13 things will work out as Your Honor described.

14 What I hope to get you to resist is consuming the

15 whole thing under some preconceived term which implies

16 results, and what you have said indicates you are

17 sensitive to that, and indeed the last time you said you

18 didn't think you could do it if you wanted to.

19 So I am confident. I will turn it back to my

20 partner, Mr. Green.

21 HEARING OFFICER: Okay. Mr. Green?

22 MR. GUEST: Mr. Menton, we have wrestled with this,

23 too, and I agree with Mr. Smith. I think you are

24 wrestling with it, and we all are wrestling with it, and

25 I think your two concerns are really right on point.

1 We have had the fear all along that we are going

2 through I use the term practice bleeding, I heard

3 another attorney say that, and I think it is very

4 descriptive, in the sense that it is a moving target,

5 and not only with regard to what you might view as an

6 implementation, the strategy stage, the first stage Mr.

7 Earl's firm pointed out.

8 There have been so many different views on the

9 nature and definition of the so-called problem, and with

10 this recent preparation by the Department of Interior in

11 response to a Corps of Engineers study there is a

12 massive restudy of the entire system that is underway,

13 and it appears that the range of alternatives being

14 considered there would make our little efforts here in

15 the SWIM plan kind of moot and needless, if that's what

16 you are really looking at.

17 In terms of the interest of the State of Florida as

18 well as our clients I think that if there is a way that

19 Your Honor can press the proponents of this plan to make

20 up their minds before we go through this exercise,

21 realizing that our farmers are facing the combined

22 forces of the United States of America and the State of

23 Florida, who haven't made up their minds yet, I think

24 it's fair that they clear the air and decide what they

25 want to do on both stages.

1 And I fear that staging might be a way that would

2 postpone that to our detriment and to the detriment of

3 those who are interested in assuring that the problems

4 that exist in the Everglades are properly defined and

5 dealt with.

6 So to that extent I would say that it really makes

7 sense from our point of view to keep this baby together,

8 to force that decision to put a deadline on the

9 government to decide.

10 We know the Board will meet next week, and Your

11 Honor established the 14th as a tentative additional

12 case management conference to deal with what happens

13 there.

14 If there is a way to force a unified position among

15 the proponents of the plan in that process and decide

16 what to do, I would urge you to do it.

17 HEARING OFFICER: All right. Mr. Earl?

18 MR. EARL: Mr. Menton, thank you. If I may address

19 your first question, your first concern of the

20 strategies.

21 We, too, are concerned about the uncertainty in

22 terms of what the strategies are linked to the facts,

23 and in the case of a plan which is supposed to be a

24 holistic, coupled project we have trouble, we wonder how

25 if we divided in terms of causation and the remedies or

1 ultimate strategies, how you would avoid invoking a new

2 point of entry when a new strategy, changing the STAs,

3 your water retention areas, perhaps new regulatory

4 systems, replacing some of the STAs, we think that would

5 evoke clear new points of entry and negate all the hard

6 work of causation that has been done.

7 HEARING OFFICER: That's an interesting point, and

8 one that I think we have touched on.

9 It is one that I would like to get input in

10 particular from the District, because we have discussed

11 that in the past, that if there are significant

12 modifications to the SWIM plan, how will that be

13 handled? Will that be handled by remand for adoption of

14 a new plan, or will we do it in the context of this

15 litigation?

16 I think that the case law as I understand it leaves

17 some discretion out there, and I think to a certain

18 extent it becomes a question of degree, as I understand

19 the case law, and somewhat of a judgment call, but I am

20 very curious to hear what position the District has.

21 I think it is a good point. If we do end up trying

22 to segment it are we really creating more problems if

23 there are a lot of modifications, and how do we deal

24 with any parties who may be coming in?

25 MR. EARL: In this particular case where we are

1 reviewing the SWIM act it is particularly important, the

2 SWIM plan, because the SWIM act contains a separate set

3 of rather intricate review procedures, reviews by other

4 agencies.

5 You do not just go back as you would in a

6 permitting hearing and make some changes, and it comes

7 out of the process.

8 373 contains a detailed list of agencies, local

9 governments that have to comment, a review process where

10 DEP has to identify the changes it wants, and then it

11 goes back to the Board, so it is a separate strategy

12 framework which makes this particularly difficult.

13 In addition, Mr. Menton, I would have another

14 difficulty of postponing the strategy, and why we think

15 it will ultimately be more efficient to determine and be

16 more expeditious, the Legislature's term, to combine

17 those, so it is moved forward, so that we may in fact

18 find a strategy that there may be such promulgated that

19 some or all of the petitioners can live with.

20 My clients came very, very close in the mediated

21 process to agreeing to a plan. If other things come out

22 of this process, again we have spun our wheels and have

23 wasted a lot of time and money.

24 It makes sense to integrate the whole as well as

25 the petitioners' view of where the agencies fit into

1 this and make them make a decision.

2 If they really want to have a new SWIM plan let

3 them pull it back, go through the statutory process,

4 tell everyone where they stand.

5 If they don't, let's proceed on the whole plan,

6 let's lock it in, and let's go forward with that and

7 have a hearing.

8 HEARING OFFICER: Mr. Earl, let me say that I think

9 that the idea of segmenting the hearing process doesn't

10 necessarily include what is ultimately a unified

11 hearing.

12 I think that that there will be carryover, and

13 there may be some overlap, that as I indicated earlier

14 we are going to have to break it down in terms of

15 everybody's sanity, and particularly mine. We will have

16 to have some periods of recuperation and so forth.

17 So, I mean, that's just going to be the nature of

18 the litigation in a case of this magnitude for this

19 long.

20 I mean, there may be some people who can continue

21 for 18 weeks at a time through the hearing process

22 without any problem, but I am not one of them.

23 I can tell you that. So we, you know, I don't

24 think the idea of segmenting necessarily precludes the

25 idea of having what is in concept a unified hearing, so

1 in that regard I want to respond.

2 MR. EARL: We have made an attempt to chart out

3 what we have referred to in Exhibit A to our memorandum,

4 we have made an attempt to chart out, Mr. Menton, the

5 relative, Counsel, there in your memo also, and on the

6 left side we have our proposed schedule for a unified

7 hearing, where we have strategy and causation, and that

8 shows we start, the parties have met about two and a

9 half days this week discussing a possible starting date,

10 closed a lot of it, but I think we have agreed on some

11 of it, so we want to move forward on a plan to start on

12 January 24th, and on the left side we have our proposed

13 strategy for a combined hearing, and we have our

14 thoughts on what a bifurcated hearing schedule would be,

15 and by combining the remedy, the strategy, and the

16 factual elements of the case we see that this hearing

17 could be concluded, although it would be tough on

18 everyone...

19 HEARING OFFICER: I noticed you have July 22nd

20 under here, and I am sure you will have me issuing the

21 recommended order by October.

22 MR. EARL: We tried to be optimistic. We can add

23 on whatever would be a reasonable period of time in this

24 case.

25 MR. FITZGERALD: We have great confidence in the

1 Hearing Officer.

2 MR. EARL: We would take all discovery and be done

3 with it by April 25th.

4 HEARING OFFICER: Mr. Earl, if we went with that

5 approach how do you foresee the hearing being conducted?

6 Do you foresee the District coming in, and we have

7 discussed these issues of the burden of proof and have

8 reached a consensus that the first approach would be for

9 the District to present a prima facie case as to what it

10 did in adopting the plan, and then we would go to the

11 petitioners, who would offer their evidence as to what

12 they see is wrong, and then we would go back to the

13 proponents of the plan to take additional testimony.

14 I think that's the best way to conduct the hearing,

15 whether we break it into segments or not.

16 Are you suggesting that what we do is get the

17 evidence from the District as to what it has done with

18 the plan, and then the Sugar Cane League present its

19 case as to what is wrong with causation and what is

20 wrong with the strategies, and then we would go to the

21 Coop, and they would present their case on all of the

22 issues, and then we go to the Vegetable Growers and take

23 all the testimony from them as to what is wrong, and the

24 proposal articulates another problem in the SWIM plan

25 and the proposed strategies that are set forth there,

1 and then go back to the District and get their

2 responses?

3 I guess what I am saying is if we handle it with

4 that approach, by the time we get to the response from

5 the District and the federal government and, too, for

6 example, the nature of the problem, if there is one,

7 then how am I going to be able to recall what all of the

8 prior testimony has been?

9 I just find it will be a lot more of a mish-mash,

10 you know, to try to conduct the hearing that way.

11 It seems more logical and easier for me to try to

12 take all of this in if we try to break it down into just

13 taking all testimony of a particular aspect of the case

14 to the extent that we can, and understand there will be

15 some overlap, and I will not use the segmentation

16 process to collaterally estop people from raising issues

17 later on, as long as it is within reason, but it just

18 seems it will be easier for me to try to put this all

19 together if we try to break it down.

20 I don't know if the proposal you've got here for a

21 unified hearing would allow me to do that.

22 MR. EARL: Well, I think certainly periods,

23 breakdown periods, and certainly on our side of the

24 table, on this table, we will coordinate our

25 presentation and cover issues.

1 We have, and Mr. Hyde, if you would like later,

2 next time, he has some arguments for you, our view of

3 what our presentation will be, which is a little bit

4 different than the proponents of the plan, which would

5 go first.

6 We feel it is the only way we can do it, to lay out

7 the plan, what supports the plan, what it is, and then

8 the petitioners would bring on their case regarding the

9 plan.

10 Mr. Hyde will address that in detail when and if

11 you are ready to hear it today.

12 Now we would obviously work with the Hearing

13 Officer and stage it to make it workable, digestible for

14 all of us. We as the petitioners really need to have

15 some flexibility in terms of presenting our case.

16 We're willing to work on that in any way we can.

17 HEARING OFFICER: Well, if you're willing to work

18 on it in terms of the unified, what's different from

19 that and the segmented plan that you were talking about?

20 What's the difference?

21 MR. EARL: There are quite a few differences. The

22 way the segmented plan works, as I understand their

23 proposal, they want to complete the causation discovery,

24 and they wanted to get that done by as I understand it

25 April 1st, and then they will have the hearing.

1 I don't know whether their request for a

2 recommended order, and we would be opposed to that, and

3 then you have discovery on the remedy here, and I know

4 Mr. Guest would be interested in that. We would be

5 opposed to it. I think it would only delay the ultimate

6 discovery.

7 And the discovery and the pretrial period, we would

8 first start discovery on the remedy issues for about six

9 weeks, and then you would end the discovery remedies,

10 have a pretrial hearing separation period, two pretrial

11 separation periods, getting ready for the trial.

12 Then you have a remedy hearing, an additional

13 hearing, with built-in inefficiencies and two separate

14 hearings, using some of the same witnesses, for example.

15 I understand there are quite a few witnesses that

16 are going to appear on both topics. It is inefficient,

17 Mr. Menton.

18 The remedy hearing ends, and we show this under the

19 bifurcated approach, you could have a much later final

20 conclusion of the hearing in '95, as opposed '94, if we

21 do it all together.

22 HEARING OFFICER: Okay. Let me ask you one

23 question. It seems to me that one of the reasons to

24 support trying to break it down is that it might force a

25 little bit more of the delegation of responsibility

1 amongst the different parties, and some will be at more

2 of a disadvantage than others, but we have a lot of

3 lawyers here, and I am sure that everyone has their own

4 areas of the case that they are particularly familiar

5 with, and one of the things that occurred to me as a

6 possibility of segmenting it is that there are certain

7 lawyers on each side who can be assigned to work on

8 certain aspects of the case and not worry about the

9 first part of it, so that while we are going through the

10 hearing process on the first segment there could be a

11 whole group of you doing discovery or doing trial

12 preparation or working with witnesses in connection with

13 the second.

14 Again there are probably some parties who are not

15 as equipped to deal with that as others, and I certainly

16 would be interested in hearing from them if they have

17 any objections to that, but it would seem that given the

18 vast resources that are being expended on this case they

19 can be used more efficiently that way and be segmented

20 out.

21 Obviously I don't have the ability to segment my

22 aspects of the case, and that's why we would have to

23 build in a period for me to digest those, but I don't

24 have any problem with the concept of us being in hearing

25 on a certain aspect of the case and some attorney being

1 out taking depositions somewhere else on another aspect

2 of the case. If that troubles you or if you don't think

3 that is workable, I would like to hear from you.

4 MR. GUEST: Mr. Menton, if I could interject on

5 that point that Mr. Earl mentioned, by our accounting a

6 number of witnesses overlap.

7 HEARING OFFICER: I mean, there will be some

8 overlap. I understand that.

9 MR. GUEST: So there is not a clean way to

10 segregate these groups. That will be a real...

11 HEARING OFFICER: Well, I mean, I think there

12 clearly will be some overlap, you know, both with

13 witnesses and to a certain degree even with attorneys,

14 you know, some of the issues overlap, but, you know,

15 from an overall standpoint I think that it would seem to

16 me that there will be enough witnesses who can be

17 clearly, will clearly address one aspect.

18 For example, if we go with the current STAs there

19 are probably some experts who have worked only on

20 development of the STA concepts, and really they don't

21 have anything to offer with respect to the existing

22 problems aspect, and they could be, you know, taken

23 separately, I would think.

24 I mean, I am just speculating and trying to figure

25 out an easy way to work it.

1 MR. HOFFMAN: Were you through?

2 MR. EARL: Go ahead.

3 MR. HOFFMAN: I want to tell the Hearing Officer we

4 join the League and the Coop in their general positions

5 concerning keeping the case together.

6 I think part of it from my personal viewpoint as

7 counsel for the Fruit and Vegetable Association is not

8 so much what you are thinking as what we know others are

9 thinking this process would mean if it is broken up.

10 You don't know what we have been told and so forth.

11 HEARING OFFICER: That's absolutely true.

12 MR. HOFFMAN: There is a concern that you would not

13 understand.

14 Number three, though, is it has to be tied to the

15 burden of proof. I mean, once you determine essentially

16 under another motion where we are going, if they go

17 first, that's part of the solution.

18 Also I think that you have used the word bifurcate

19 a lot in your opening comments.

20 HEARING OFFICER: I should go back to staging. I

21 think Mr. Smith was more descriptive.

22 MR. HOFFMAN: It sounded like you made up your mind

23 you would do something in that line, and I would suggest

24 that the semantics are very important to us.

25 I would think the word sequence sure beats the word

1 segment, even though it might not seem like much to you.

2 I can give you an example. We have been told that

3 some parties would like to enter an order on causation.

4 We have been told it would be used to politically

5 bludgeon us into settlement, if you found there was

6 phosphorus flowing from some place. We hope you are not

7 even considering segmented orders, and that kind of

8 thing that is a continuum here between sequencing

9 things, which would be based partly on the burden of

10 proof, and some segmented trial where you would actually

11 pronounce things from the bench or make findings of fact

12 all of us would expect you to, and that could be used

13 for other purposes outside the process.

14 So those are the kinds of behind-the-scene concerns

15 that we have.

16 We also are very concerned about going to hearing,

17 as we said before, because we do not have the resources

18 to handle this on our own, obviously, but I also think

19 that when you, the counsel for the District has been

20 very open about this to the point that right now all

21 there is is this SWIM plan, and that's all he has been

22 told by his client, and that's fine.

23 So it appears that with the various, whatever is

24 happening in the background, there is a push to go to

25 hearing to get things done with this.

1 If that happens, of course, as Mr. Green pointed

2 out, that would be a travesty that people don't want. I

3 don't think you can do that.

4 HEARING OFFICER: But, Mr. Hoffman, I am kind of

5 caught between a rock and a hard place, because I have a

6 legislative direction to expedite this hearing, and I

7 have been trying to do this as best as I can through

8 this process, and it's a little bit difficult, given,

9 you know, all the other factors that are involved in

10 this, but that's a very specific direction in the

11 statute to me, and I have to do everything I can to

12 bring this aspect of the Everglades restoration process

13 to conclusion as soon as possible.

14 MR. HOFFMAN: That's what I am saying. I don't

15 think you can do much about that. If that's what they

16 tell you is the plan, then you have to move it. We have

17 a concern about that, whether it is resolved at trial or

18 whether we have to do it again.

19 But from our viewpoint we believe that if you are

20 going to try to concentrate types of witnesses in a

21 sequence tied to the burden of proof, then using that

22 terminology would be something that we could live with,

23 but I think more important would be you need to know who

24 the witnesses are that people intend to call, so we can

25 have a grasp of the limit.

1 We have been trying to work on that, and there are

2 proposals to limit the number of witnesses that are from

3 our viewpoint, we have always believed that witnesses

4 that worked for the government, we have statements they

5 have made that we think would support us, and they would

6 be adverse witnesses, and we would like to see the case

7 controlled more from that end, and the number of

8 witnesses that people will actually call and get that

9 limited, and not to include adverse witnesses from our

10 viewpoint and move the case along tied to the burden of

11 proof and any sequencing that that would engender.

12 We vehemently oppose the other end of that

13 continuum where it was segmented up as though it were

14 cutting up some sort of a snake with pronouncements or

15 restrictions of what you have learned. That would be a

16 continuum we would violently or vehemently oppose.

17 HEARING OFFICER: I wanted to respond to a couple

18 of things that you raised, Mr. Hoffman.

19 First of all, with respect to separate orders

20 certainly I will listen to Mr. Guest and the other

21 parties as to what their position is on that.

22 In the situations that I have handled in the past

23 where I have done a separate recommended order, and I

24 don't, I am trying to remember exactly what, but in one

25 instance I know we didn't do it in terms of a separate

1 recommended order, but what I did was in terms of

2 findings of fact and conclusions of law regarding a

3 particular aspect, which did not go back to the agency

4 at that point for approval and go through that whole

5 process, but simply gave the parties my findings

6 regarding certain, in that particular case there were

7 liability issues, etcetera, that were involved, and the

8 parties agreed, all the parties agreed in that case that

9 if they could resolve those issues it would facilitate

10 their resolution of the subsequent issues in terms of

11 the amount of discovery that would have to be

12 undertaken.

13 So there was a total agreement in the one instance

14 where I have used that approach, and I would have to

15 think about it a little bit more before I would be

16 willing to do it over the objections of some of the

17 other parties.

18 But it actually worked very well. What I did is

19 specifically followed the same format I would have done

20 in a regular recommended order, made findings of fact

21 and resolved certain issues that as a consequence

22 determines how much discovery was needed in other areas

23 and how, and really the legal arguments in connection

24 with some of the issues down the line.

25 I am not sure whether this case can fit within that

1 approach or not, and certainly I would be willing to

2 hear from Mr. Guest and the other proponents of such an

3 approach if there are any.

4 But in responding to you, Mr. Hoffman, I have never

5 done one where I have done a separate recommended order

6 and sent that back to the agency and retained

7 jurisdiction and did a recommended order on another

8 aspect. That has not been the approach that I have

9 used.

10 I have done it as a separate evidentiary hearing on

11 particular issues, made findings of fact on that, which

12 then governed the way that the parties approached the

13 rest of the case, and I don't know if that changes your

14 thinking. It may make it more objectionable. It may

15 not. I don't know.

16 MR. HOFFMAN: Well, there is no way you could

17 explain it that would make it less objectionable,

18 because when you read the SWIM plan it is by statute an

19 order. It is nothing but a rule full of policies from

20 top to bottom, including policy decisions that the

21 strategies to achieve interim and long-term phosphorus

22 concentration reduction will require installation and

23 use of STAs.

24 There is nothing that would not be prejudicial to

25 our position that would have some kind of findings of

1 fact in the middle of the case. It would be

2 devastating, in my opinion.

3 MR. EARL: We would concur with that position.

4 If I may clarify one point, and I think it is

5 important, you have worked very hard to meet your

6 statutory mandate under the Marjory Stoneman Douglas Act

7 to expedite this.

8 We are proposing cutting the number of expert

9 witnesses down, for example.

10 The proponents of the plan have I think 80 expert

11 witnesses, and we have had some discussions. We've

12 proposed 40 for each side, not including adverse or fact

13 witnesses.

14 We are making efforts. The holdup right now in

15 this plan is to practically get the hearing done and do

16 it quickly, and the problem is the South Florida Water

17 Management District.

18 We submitted the transcript. They have

19 instructions from the administration and the Governor's

20 Office to come up with a new plan. They need to fish or

21 cut bait, tell us what is the plan, what are the

22 remedies, and then we can all go.

23 The holdup is not with you or with this hearing.

24 It is with that Governing Board that needs to take some

25 action promptly. That's what holding the process up.

1 Anyone who thinks it is anything else is confused.

2 There has been a delay, because people came very

3 close to settling it, but that Board I think is

4 operating under the premise they have a right while this

5 is before this agency to go assemble another plan, and

6 that clearly isn't true. Once it goes to DOAH they

7 don't have jurisdiction.

8 HEARING OFFICER: Before I go to the proponents of

9 the plan, and I have been hearing only from the

10 petitioners so far, and I will give you an opportunity,

11 there was one other thing that Mr. Hoffman raised that I

12 think I wanted to comment on having to do with

13 witnesses.

14 One of the reasons why I wanted to do the hearing

15 today on the bifurcation is because I hoped that, let me

16 go back, staging issues. I hope that we can put this

17 issue to rest, and if we are going to do a staging

18 approach then that would enable the parties to, you

19 know, clearly identify the witnesses that they are going

20 to use and rely upon during the various stages of the

21 hearing, and that will contribute to establishment of

22 the discovery schedules and also a clarification in

23 terms of who is going to be called and when.

24 So that's exactly the kind of issues that I want to

25 try to get to the bottom of as a result of the hearing

1 today.

2 In terms of the number of witnesses, you know,

3 those are issues that have been raised in the briefs

4 submitted by the League.

5 I don't know that I am prepared at this time to

6 resolve those issues. I would be curious to hear what

7 the proponents of the plan have to say on that.

8 Let's start with the District. Mr. Reid?

9 MR. REID: I think Mr. Guest wanted to comment

10 first.

11 MR. GUEST: I would like to, if I might, go to the

12 staging issue. I think there are substantial advantages

13 to it, as in the previous cases you described. We have

14 had some experience.

15 That is at first that the great division between

16 the two sides is that we view the industry as being the

17 flat earth society members, and they don't accept that,

18 and there is a problem, and I think it would make a huge

19 amount of difference to understand how that will come

20 out.

21 As a practical matter I think a decision on that

22 would be very likely to enhance the opportunity for

23 settlement if we had a finding on that.

24 I think also that if you find at stage one that a

25 particular standard, 40 parts per billion or 10 parts or

1 whatever, whatever parts per billion is where the

2 pollution starts having an adverse impact on the

3 Everglades, that's going to have very important

4 ramifications for the plan.

5 If the plan it targeted at getting to two parts per

6 billion or 50 and you find that the standard that the

7 District is using is incorrect, obviously the whole plan

8 has to fail.

9 If you find also that our, as our opponents insist,

10 there is no pollution problem out there, it would seem

11 rather peculiar to continue along with seven or eight

12 more weeks of trials for a problem that does not exist,

13 and if you found there is no pollution problem, the

14 right thing to do would be in the findings of fact and

15 remand it back. It would not make sense to keep on

16 doing it.

17 So I think it really does make sense to follow the

18 procedure that would call for some findings of fact

19 along the way to do that.

20 On the question of the moving target, I don't think

21 there is any serious dispute on our side of the table

22 that there really is a pollution problem in the

23 Everglades. It is not the only problem, but there

24 certainly is a pollution problem, and the Marjory

25 Stoneman Douglas Act...

1 (WHEREUPON, A BRIEF OFF-THE-RECORD DISCUSSION WAS

2 HELD DUE TO THE CONFERENCE CALL BEING DISCONNECTED, AND THE

3 HEARING WAS RECESSED FROM 10:52 A.M. TO 11:04 A.M., AT WHICH

4 TIME MS. BOYD WAS ABSENT.)

5 TELEPHONE OPERATOR: Good morning, Mr. Menton?

6 HEARING OFFICER: Yes.

7 TELEPHONE OPERATOR: This is AT&T. I do have all

8 of your parties with me, with the exception of Ms. Boyd.

9 Would you like a roll call?

10 HEARING OFFICER: Okay.

11 TELEPHONE OPERATOR: All right. Good morning,

12 everyone. Mr. Smith, are you there?

13 MR. SMITH: Yes.

14 (WHEREUPON, MS. CLEMENTS, MR. MC FARLAND AND

15 MR. WARD WERE PRESENT.)

16 TELEPHONE OPERATOR: Ms. Clements, Ms. Ruth

17 Clements?

18 MS. CLEMENTS: Yes, we are here.

19 TELEPHONE OPERATOR: Are you here, Mr. Reid?

20 Mr. McFarland?

21 MR. MC FARLAND: Yes.

22 TELEPHONE OPERATOR: Mr. Lehtinen?

23 MR. LEHTINEN: Yes.

24 TELEPHONE OPERATOR: Mr. Ward?

25 MR. WARD: Yes.

1 TELEPHONE OPERATOR: Mr. Wedgworth?

2 MR. WEDGWORTH: Yes.

3 TELEPHONE OPERATOR: Okay. All right. Your

4 reference number has changed. It is WD, as in "David",

5 77621. And you do have our 800- number, do you not?

6 HEARING OFFICER: Yes.

7 TELEPHONE OPERATOR: All right. Everyone have a

8 very good day and a better weekend. Thank you for using

9 AT&T.

10 HEARING OFFICER: Mr. Smith, I don't know at what

11 point you got off.

12 MR. SMITH: I'm sure I heard all the gist of it,

13 Mr. Menton.

14 HEARING OFFICER: Okay. I think Mr. Guest was in

15 the middle of his presentation.

16 MR. SMITH: That's correct.

17 MR. GUEST: What I was fixing to say is I don't

18 think there is really any dispute on this side of the

19 room that this is a serious nutrient removal problem,

20 and the process is not changed.

21 I think that as to the actual SWIM plan, I would

22 not call it a moving target, but it is a twitching

23 target, and it has twitched several times, and it is

24 twitching now.

25 But until it actually moves I don't think there is

1 a substantial change.

2 But even if the SWIM plan is amended to conform

3 with the mediated plan I would submit that we would have

4 to brief the question first to see if there is enough

5 difference to cause a change of how this litigation

6 should go, and I don't know, are you guys going to

7 object if I say what the changes are?

8 MR. GREEN: Yes.

9 MR. GUEST: Okay. Then I won't do it, then. I

10 think that the fact that they object has some meaning.

11 I would say the changes are not large enough or

12 important enough to make any difference to the substance

13 of the litigation, and for that reason I don't think

14 that there is very much danger that putting this thing

15 in two stages is going to create an additional point of

16 entry at all.

17 And then turning to the other two things, I might

18 as well finish saying everything I have to say, as far

19 as the learning curve I have always thought a good way

20 to do this is to have the parties each write a 20-page

21 memo articulating what they think the issues are and

22 what their point of view is, an overall view of their

23 side of the case, just a guiding document for the other

24 parties and the Hearing Officer.

25 I had a very complex civil rights trial several

1 years ago where the judge insisted on doing that at each

2 stage, and he insisted on doing that at the beginning of

3 each part, and he would stop people and ask questions

4 and see how it fits into the story. I think that would

5 be very useful here.

6 HEARING OFFICER: Along this line I don't recall at

7 this point, I would have to go back and review the

8 pleadings, in terms of whether, I mean, obviously in

9 most complex cases I do a prehearing order and require a

10 prehearing stipulation, but I think in this case because

11 of the number of parties, I don't recall that I did

12 that. Does anybody remember that?

13 MR. FITZGERALD: We did have ordered in the

14 scheduling order dates that included a period where the

15 parties were obligated to try to file any agreed stips,

16 not trial briefs, per se. They were not specifically

17 ordered, but some of the pleadings before you are

18 tantamount to that.

19 MR. GUEST: This is not a trial brief. It is a

20 road map. That is what the idea is, with everybody

21 providing a road map.

22 And finally my sense of this case is that, you

23 know, the old joke about how many lawyers does it take

24 to change a light bulb, and the answer is, "How many can

25 you afford?" I think the same thing with witnesses, how

1 many witnesses do we have?

2 I don't think it is going to take anywhere near as

3 many as are listed, and especially as to the question of

4 is there a nutrient problem in the Everglades caused by

5 the EAA runoff, I don't think that requires the massive

6 number of experts and a massive interrogation.

7 HEARING OFFICER: Mr. Reid or Ms. Ponzoli?

8 MS. PONZOLI: I'll go next. The United States

9 supports this concept of a staging really for three

10 reasons. We think it is practical and fair, we think it

11 will actually expedite a resolution, and I think it is a

12 rational order of proof.

13 As to practical and fair, we are looking at, I

14 guess you are right, that we don't know how long it will

15 take, but six to 10 weeks seems to be the range of the

16 trial. It will have to be broken up.

17 I believe the government will put on a prima facie

18 case, and the petitioners who actually are challenging

19 come in with the body of their case, and then we

20 respond.

21 And I think skipping to my third reason, a rational

22 order of proof, if you look at the harm and the

23 causation issues it doesn't make sense to look at

24 remedies first and then start looking at the other and

25 what we are fixing.

1 We are fixing largely the SWIM plan, water quality

2 problems, and as far as the expeditious hearing I have

3 to tell you quite honestly the fact that there has never

4 been a hearing on the pollution in the Everglades has

5 caused us difficulty over time in resolving it and

6 fixing it, because we have never had a Hearing Officer

7 or the court actually make those findings or sustain the

8 District or the other proof of those findings, and I

9 think truthfully it has given people an opportunity

10 politically and maybe in rationalization in their own

11 minds to say, "Well, they have never proven there is a

12 pollution problem. No court has ever actually affirmed

13 that."

14 We need to do that as soon as possible.

15 Now I agree with Mr. Hoffman, I would

16 wholeheartedly support a limitation on witnesses, and

17 there was discussion of that this week in fairness to

18 all the parties. We did make an effort towards that.

19 The League did come in, and I believe it was

20 somewhat supported by the other parties. If they could

21 limit their expert witnesses to 40, we certainly can

22 limit ours to 40. I think we can limit ours to 30. I

23 think we are in agreement on our side of the table. We

24 will go to 30 expert witnesses.

25 HEARING OFFICER: Let me just interrupt you a

1 moment, so I am sure that I am following you. You

2 talked six to 10 weeks. If we did that as identified...

3 MS. PONZOLI: Yes.

4 HEARING OFFICER: ...and now we are talking about

5 30 experts, are you talking about in unified or at the

6 first stage?

7 MS. PONZOLI: In a unified hearing you would have

8 30 experts. You would have less in a staged hearing.

9 You could do it on less in a staged hearing.

10 I don't know exactly what the count would be. I

11 don't know exactly. It might be 50 and 15. I think it

12 would be more like 20 and 10 for the staged hearing.

13 You would have some overlap.

14 I don't think the government parties have as many

15 mutual witnesses who go to causation and remedy as the

16 petitioners do.

17 The problem with their limitation of witnesses,

18 they were never willing to limit their fact and adverse

19 party witnesses. That could run double the number, so

20 it wasn't limiting discovery, and it wasn't limiting, it

21 wasn't pulling things in tighter. It was open ended.

22 So I think we would still challenge them to get

23 that number down to what they really think they will

24 bring in and present to you, because I honestly submit

25 when we stand before you no one will put on a huge

1 number of experts.

2 I don't think any trial attorney thinks any judge

3 has the capacity to listen and actually hear 40 experts.

4 You lose it after a while. No one can listen that long.

5 So addressing your two particular concerns about

6 the strategies, I believe quite honestly as to the

7 pollution problems in the Everglades there are two

8 strategies. There are BMPs and STAs, and whatever mix

9 you use, those are the ones for fixing it, and that's

10 what the SWIM plan has.

11 Let's get the strategy before us and go on.

12 As to the task force report, I want to address that

13 briefly with you.

14 That task force report as you can see it here

15 addresses the hydrologic system. It is an early draft

16 of a massive effort at looking at the total Everglades

17 restoration. It is only a very early draft and looked

18 only at some hydrologic, the full range of hydrologic

19 possibilities for improving the hydroperiod.

20 It did not include as its final genesis looking at

21 the economic possibilities in sustaining the urban area

22 and industrial areas.

23 I think I can speak with some confidence that we,

24 the purpose of the task force and the ecosystem

25 restoration is to avoid the train wrecks that we have

1 seen in the past between industry and the environment,

2 try and plan things out in a fuller way.

3 It is very unfortunate that at this early draft it

4 blew up in people's faces, and we regret that. We

5 regret it was that explosive. It was not intended to

6 be, and the future drafts will include the

7 considerations of economic possibilities.

8 So I think it is much ado about nothing.

9 HEARING OFFICER: Are you saying then that the

10 position Mr. Hyde or whoever filed, I guess we are

11 saying it for the League, indicated a concern that that

12 task force report articulated some new version of the

13 nature of the problem and the cause of the problem in

14 the Everglades?

15 Are you saying that that does not in any way alter

16 the position of the federal government as to the nature

17 of the problem as set forth in the SWIM plan?

18 MS. PONZOLI: That's right.

19 HEARING OFFICER: Okay.

20 MS. PONZOLI: I think, I guess my final point would

21 be I also agree with Mr. Earl it is time to fish or cut

22 bait. My clients want to see an early trial, and they

23 very much want to see it first on the causation and harm

24 issues. Let's get the facts.

25 We would like to see some actual facts, actual

1 findings of fact from you on the issues, and then I

2 think that those who would advocate for the study, for

3 the delays, are going to be faced with, we will affirm

4 the strategy, adopt whatever strategy we are adopting,

5 but we are facing them and doing it rapidly.

6 So we would ask you to set an early trial date and

7 the staging that you proposed.

8 HEARING OFFICER: Have you given any thought if we

9 do go with the staging approach of the time frame that

10 we would be looking at both for setting the hearing in

11 terms of discovery and how long such a hearing would

12 take?

13 MS. PONZOLI: I think we would hope that you would

14 give the discovery through I guess April 1st and then

15 set a trial in mid to late April on the first stage of

16 it. That would give us 50 days.

17 There are many causation witnesses when you take

18 the witnesses on the other side. We haven't really

19 nailed down who fact and adverse witnesses are that they

20 will want to depose.

21 We have sought at least early on to limit the

22 scientific depositions to three a day. We are willing

23 to go to a higher number if it will expedite it.

24 HEARING OFFICER: Mr. Guest, I didn't ask you that

25 question. Did you have any particular input in terms of

1 what you think if we went through the staging route,

2 what you think would be an appropriate day and how much

3 discovery?

4 MR. GUEST: Early April, and I agree about the

5 discovery.

6 MR. REID: Can I just ask a question? When you

7 talk staging, is it your vision that all discovery will

8 be completed before the first day of testimony starts?

9 HEARING OFFICER: All the discovery on the first

10 stage.

11 MR. REID: Just on the first. So there will be

12 later discovery to be done theoretically?

13 HEARING OFFICER: Well, you know, this is sort of a

14 moving target in itself, as we've talked about, and

15 certainly I am willing to, but one of the things I had

16 raised earlier is the possibility that there could be

17 ongoing discovery regarding subsequent stages during the

18 first stage of the hearing or at least the possibility

19 to set it up that way.

20 I don't know what the position of the federal

21 government or Mr. Guest would be with that aspect of it.

22 MR. GUEST: That is an excellent idea. I did a

23 trial last year where we did discovery while we were

24 doing the first part, and it worked very well.

25 MS. PONZOLI: I would like to point out that we

1 have done between 90 and 100 depositions to date,

2 Mr. Menton, and a fair number of those have been

3 deposed, so, you know, we would agree to do discovery

4 while we were proceeding with the first stage of the

5 trial.

6 I did not mean to imply that you didn't have the

7 ability to listen to the 40, but it just seemed to be

8 something beyond dealing with.

9 HEARING OFFICER: I agree with you. There is a

10 point of diminishing return.

11 MR. FITZGERALD: Amply demonstrated by the

12 depositions we sat through thus far.

13 MR. GREEN: May we speak to that?

14 HEARING OFFICER: Yes, at this point I don't know I

15 will decide anything conclusively today. These are some

16 ideas I think we need to get out and talk about, and we

17 will come to some resolution in terms of getting a

18 discovery schedule going and all that, but in terms of

19 ultimately deciding whether I am going to do a separate

20 recommended order or proposed findings of facts after

21 the first stage, I want to think about those after

22 aspects before I decide it, but before I get back to

23 you, Mr. Reid, was there anything further you wanted to

24 ask?

25 MR. REID: I would ask another question for

1 clarification. Do the petitioners object to, assuming

2 there is some, what was Mr. Smith's word, staging, and

3 do they object to ongoing discovery once the first stage

4 starts?

5 MR. GREEN: Absolutely.

6 MR. REID: Well, I will say as a starting point I

7 think that most of this talk about moving targets can

8 easily be put aside. The government made up its mind

9 already once on the issue when it adopted the SWIM plan,

10 and that is all we can do. We can't change that at this

11 point as far as this proceeding goes, moving ahead.

12 I can't tell you that there will be or will not be

13 a change. All I can tell you is we've got a SWIM plan,

14 and we are in litigation over it, and we are ready to

15 move ahead in that litigation.

16 So I don't think it is a moving target, any more

17 than there are pages and pages of defenses or objections

18 to the SWIM plan, which even object to BMPs, where the

19 rule was already in place and everybody is living under

20 it.

21 There are a lot of moving targets. I think to put

22 all of that aside we have a SWIM plan, and that is the

23 mind of the government, and we are ready to move ahead

24 on it.

25 The District's position, I have four suggestions

1 that I want to make, and this is really based on all

2 that they have said and looking at our witnesses and so

3 forth and doing calculations about how many hours there

4 are in the day and what can be done in certain periods

5 of time.

6 Number one, we support a trial in April. Number

7 two, we think in order to achieve that we need to have

8 discipline imposed, and that discipline we suggest would

9 be 30 total witnesses per side.

10 As a subpart...

11 HEARING OFFICER: This is again 30 witnesses for

12 the whole case?

13 MR. REID: For the whole case, and we'll get to the

14 staging in a minute. Thirty witnesses for all issues.

15 Now, number one, I am suggesting, you know, they

16 said 40 experts, and I am saying 30 total, and there

17 might obviously, it might get moved around, but I think

18 30 is probably the right number for experts, total

19 witnesses, I'm sorry, with the right obviously to come

20 in and make a showing if you need to do more.

21 So long as everybody has that right on a good cause

22 basis I think setting the 30 would create a discipline,

23 and frankly I think we could live with it, as opposed to

24 setting it high, because everybody thinks 30, but we

25 want 50. I say make it 30, and if anybody wants to ask

1 for more, they can.

2 I would object, again talking about point two

3 here...

4 HEARING OFFICER: Is that 30...

5 MR. REID: Total.

6 HEARING OFFICER: ...total for each party or 30 per

7 side?

8 MR. REID: Per side of the case. 30 for all the

9 people on this side of the room, and 30 for all the

10 people on that side of the room.

11 I would say that is the one difference we have, and

12 maybe it isn't something that we have to get in a big

13 argument about, they want to exclude adverse, adverse

14 and fact witnesses, and the problem is every District

15 employee could conceivably be considered a fact witness

16 or an adverse witness, and it is a unique situation

17 really regarding my client that they don't have

18 regarding their claim.

19 So by leaving it open to a limited number plus

20 adverse and fact witnesses, it is open ended.

21 I say let's make it 30, and if they believe they

22 need more than 30 they could come in and ask for it, and

23 if they make a showing, and I am not even saying it has

24 to be an overwhelming showing. We are reasonable about

25 it. It happens in these cases all the time. I mean it.

1 The federal rules do things like this, limiting

2 numbers of depositions in every case, without even

3 knowing what the case is about.

4 Our number of 30 is a number that I think has some

5 basis for it when you count up the people that we have

6 talked about and they have talked about. That is number

7 two.

8 Number three, we think you ought to immediately

9 schedule a hearing leading up to what would be I guess a

10 pretrial hearing, and the procedure here would be to

11 make the petitioners finally set out their positions.

12 What are they objecting to?

13 In the SWIM plan, list the issues of facts, issues

14 of law, issues of policy, and the witnesses for these,

15 and then we would respond and say what we think the

16 issues of fact and the issues of law and the witnesses

17 that respond to the policy are, and then we could come

18 together for a fairly early prehearing conference and

19 would end up with a prehearing order.

20 We have, as I said earlier, pages and pages of

21 attacks, and we have objected.

22 You remember we have a number of motions to

23 dismiss. I would say now is the time, you know, to get

24 ready, and I will turn the words around.

25 We have said it is time for my client to fish or

1 cut bait. We know that. We are doing that,

2 and we are ready to move ahead. Now is the time for

3 them to do it. They need to say what they will

4 limit, what they intend to limit their objections

5 to.

6 So I would suggest a process whereby the

7 petitioners set out theirs, the respondents set out

8 theirs, and we put it together and know exactly what we

9 are litigating if we move ahead. That is the third

10 point.

11 I would see that happening fairly soon, I would

12 think perhaps even as early as early February for the

13 hearing, a couple or three weeks for them to get their

14 stuff together, a couple or three for us to respond, and

15 then have the hearing.

16 Because ultimately by limiting witnesses and

17 limiting the issues, that's how you get the color or the

18 scent of it, and we are willing to live with that

19 discipline. We are asking you to impose it. I think

20 somebody was right, the number of experts is how many

21 you can afford or how many do you have on staff or

22 whatever.

23 MR. SMITH: Excuse me. Mr. Menton?

24 HEARING OFFICER: Yes, sir?

25 MR. SMITH: This is Bob Smith. Before he gets to

1 number four, I need to ask you to excuse me now to let

2 me leave our case in the capable hands of Bill Green. I

3 have this phone for a limited time, and I am out of the

4 office, and if I may I would like to be excused.

5 HEARING OFFICER: Okay.

6 (WHEREUPON, MR. SMITH LEFT.)

7 HEARING OFFICER: Mr. Lehtinen, are you still on?

8 Ms. Clements?

9 MS. CLEMENTS: Yes, we are.

10 MR. LEHTINEN: Yes.

11 MR. REID: Number four has to do with phasing,

12 sequencing, preparation, and all of the above.

13 I guess in thinking about this case myself I never

14 thought we would come in and start taking evidence and I

15 would live in a hotel room and be here for eight or 10

16 weeks and just run like a jury trial.

17 I always envisioned there would be some sort of

18 case management.

19 I think you don't need to decide right now what

20 that is going to look like. I think a better time to

21 decide that is after we get together and you see the

22 issues and we have identified the number of witnesses

23 and who the witnesses are, because there maybe some

24 witnesses now that they say, "Well, we have witnesses

25 who will talk about both." Well, we have those who are

1 not going to be used. I mean, we may end up using only

2 witnesses who talk about only one issue. We really

3 don't know that at this point for everybody.

4 So I would say a reasonable way to approach it

5 would be after you have the hearings and the

6 preconference hearing, the prehearing conference, get

7 the issues and the witnesses identified, then we could

8 sit down and talk about, you have heard about four

9 different ideas, and we think some of them have a lot of

10 merit, some have less merit, and some maybe can be

11 developed a little more. Everybody, that's why I was

12 asking the questions to understand.

13 I don't think we ought to put discovery off into

14 the hearing. I think we can get it done between now and

15 April with the limitations that I am talking about. So

16 in that respect that really, that suggestion I don't

17 think is necessary. I think we can get it done and

18 still start the hearing in April.

19 But I would suggest that as we move closer to the

20 hearing after we have done all these other things, then

21 the time would come to decide what kind of sequencing,

22 bifurcation, etcetera, makes sense.

23 We would have a much better idea then of knowing.

24 It maybe that some of the objections may be

25 dropped, and it will shorten one part of the case or

1 lengthen another part. I think we would know better

2 then, and so that would be our position on that. We

3 should not stop everything while we decide how we are

4 going to actually have the trial, what the final hearing

5 will look like.

6 We ought to move ahead with these other things. So

7 in sum I think we can be ready for trial in April, and

8 we think there ought to be a limit of witnesses of 30

9 witnesses per side, and we ought to set a procedure over

10 the next 30 days to arrive at a final document setting

11 out the issues and the witnesses the parties will be

12 litigating, and we should as we get closer to the trial

13 face the issue of what makes sense so far as bifurcation

14 in any sense that you want to hear it. That is the

15 position of the District.

16 HEARING OFFICER: Mr. Killinger, did you have

17 anything?

18 MR. KILLINGER: I agree with some of what Mr. Reid

19 said. I think on the sequencing or staging or

20 bifurcation, I think in order to do some of that, I

21 think we need to do it. I have difficulty with

22 overlapping witnesses and to depose after one witness

23 comes on, after they have testified in the first part,

24 prior to the second part.

25 I think you will be running back with depositions

1 with impeaching testimony while the trial is ongoing

2 which would be a procedural morass to get into.

3 I think that a better way to do it would be by

4 limitation of witnesses. We support that.

5 I think the point is to do it fairly, and I think

6 in order to do it fairly and have some, I think

7 substantial and better deal of why somebody needed more

8 than the substantial number, why you are talking about

9 the meeting over a long time, some idea of what they

10 will testify about would avoid the problem of further

11 discovery or some other issues or something intertwined.

12 I think I agree, I never had any idea we would come

13 in and do it in one shot from start to finish. We

14 contemplated doing it in two locations, and it obviously

15 contemplates a break. I don't know if that is still on

16 the table or not.

17 I've also got a question about the internal

18 findings. You have a lot more experience with that than

19 I do. I think in one case you have done it by agreement

20 of the parties. It would be a great idea to get the

21 findings out so they could be articulated with your

22 preliminary findings.

23 I guess I would like to understand more about the

24 procedure you use, whether you would request a

25 recommended finding of fact from the parties before you

1 issue it or whether you would come out with what you

2 think the state of affairs is and not send them to the

3 agency for a final order and written justification. I

4 don't know enough about that now.

5 But I think at a staged hearing, that is not a bad

6 idea. I think I would recommend having all discovery

7 completed before we start it, and I think a limitation

8 of witnesses is the most immediately effective and

9 manageable way to do it and get it accomplished.

10 HEARING OFFICER: Okay. Mr. Lehtinen, did you have

11 anything you wanted to add?

12 MR. LEHTINEN: Are you talking to me?

13 HEARING OFFICER: Yes, sir.

14 MR. LEHTINEN: Well, I would just repeat the

15 suggestion we made in December, and that is that you

16 should limit the number of witnesses, and then as has

17 been said if there is a showing that more are needed by

18 either side then you can permit that.

19 Likewise we have no objection to the division of

20 the hearings in a way that would be more than just a

21 logical progression.

22 They are, however, very closely related, but in

23 anything you organize you have to organize it somehow,

24 so we would concur and think it is fair to have the

25 division that is proposed.

1 And the time frames that are being talked about are

2 acceptable, you know. They are acceptable now. The key

3 thing is keeping it on schedule. We just had that

4 comment.

5 The time frames that are being proposed are

6 expeditious, but our fear would be something happens

7 that makes them lag, especially if the limit on

8 depositions is not imposed, because we have not been

9 under the impression that without a limit that there is

10 any reasonable way to keep incredible repetition and

11 waste from occurring in the discovery and probably the

12 hearing as well.

13 HEARING OFFICER: All right. Let me ask a

14 question, not necessarily of you, Mr. Lehtinen, but of

15 Mr. Reid or the proponents who have some idea of

16 limiting witnesses.

17 Are you suggesting that discovery depositions

18 should be limited to 30 witnesses?

19 MR. REID: Yes, sir.

20 HEARING OFFICER: There would be no discovery

21 beyond those 30 witnesses?

22 MR. REID: Yes, sir. Absolutely.

23 MS. PONZOLI: Without showing.

24 MR. REID: But we have already taken 98 depositions

25 already. They took the deposition of somebody who did

1 the graphics for a meeting.

2 I think we need the discipline. I am willing to

3 live with 30 as a starting point.

4 HEARING OFFICER: All right. Any other comments

5 from the proponents of the plan on those things we have

6 discussed so far?

7 Let's go back to the petitioners.

8 MR. GREEN: Thank you. Yes, Mr. Menton, thank you.

9 I would like to review the bidding a little bit, if we

10 could. It may be helpful. We have been at this now

11 quite a while on all of this.

12 The point of departure that I recall is last spring

13 or so mediation discussions began, and we took a couple

14 of little hits where we moved everything 30 days, but we

15 had a schedule pretty well laid out, which was a long

16 period of time, which was a monumental accomplishment in

17 itself.

18 And you recall that the Cooperative with the first

19 couple of 30-day stays, we were sort of pessimistic, but

20 we said, "Sure," because everybody agreed that the

21 schedule would be moved to the same point in time, and

22 it was.

23 And then we moved along, and there was good reason

24 for that.

25 My notion of mediation and staying of litigation is

1 \that there is sort of going good faith assumption by

2 all parties that by entering into that in good faith no

3 one will take advantage of it to modify the status quo

4 severely to the participants, those participating

5 parties basically.

6 And the status quo was, and it was agreed then,

7 that the schedule slipped each time we took 30 days, and

8 we moved it.

9 It was difficult of everyone to reconstruct

10 deposition schedules, but we did that.

11 And the last long stay I believe was in July, but

12 we had a schedule that had essentially three months of

13 discovery left and give or take a month and a half of

14 trial prep. I could be off a week here or there.

15 Basically that period of time was four and a half

16 months.

17 Now at the case management conferences on May 21st,

18 July 16th, October 4th, October 19th, and November 18th,

19 the Cooperative consistently expressed the view that,

20 you know, hope springs eternal, but we didn't think it

21 was going to happen. It just looked like it was too

22 much distance to cover for a settlement.

23 We began to object to further stays simply because

24 we wanted some assurance that we would not be

25 prejudiced, that we would not be railroaded at the end,

1 and at that time there was a real prospect that we would

2 be parting company with some of our brethren in the

3 industry, and we would certainly, and that still hasn't

4 been ruled out even today.

5 But now what we are hearing is, "Well, guys and

6 gals, you know, time has passed, and let's narrow down

7 the number of witnesses, and let's roll this thing."

8 What we are really talking about is really five or

9 six weeks difference.

10 I think Mr. Earl's schedule that he showed with the

11 consolidated hearings showed the hearing ending,

12 beginning rather at the end of May, let's say June 1st,

13 and Ms. Ponzoli said something like late April, so what

14 you are talking about is not a long amount of time

15 chronologically, but it is a huge amount of time for my

16 clients for discovery, completion, and case preparation.

17 Mr. Reid asks if we would oppose simultaneous

18 depositions during the trial, and I think he indicated

19 he wasn't a proponent of that either. That would be an

20 impossible burden to place my client in, and we would

21 hope that you would not consider that.

22 But I think we agree that case management obviously

23 is called for. We believe a June 1st hearing is very

24 early. You can play games with witnesses and limiting

25 depositions, but the bottom line is we haven't gotten to

1 any key witnesses the federal government or the state

2 has. They have gotten to ours. We have not gotten to

3 their key witnesses.

4 Now if we want to go to the hearing date that is

5 sooner, sooner than we think is fair, where we are

6 prejudiced, then I would suggest that petitioners be

7 allowed to discover all of the witnesses of the

8 proponents and make them available, and when we finish

9 that then let them come back.

10 Now they are talking about deposing some of our

11 witnesses a second time, and we haven't even gotten to

12 theirs on the first time on the same subject matter.

13 So we are caught up in this. I think that there is

14 a real problem, so, number one, we would urge you not

15 allow segmentation of discovery and give us time that we

16 had so we won't be prejudiced.

17 We think we can get there by June 1st, and we think

18 that is in the best interests of everyone.

19 Number two, we are real concerned if there was

20 segmentation of discovery that discovery in the first

21 phase would be limited, so we could not fully discover

22 the government's case. We would be concerned that we

23 would be limited in cross-examination on credibility

24 issues in the first segment of the hearing, if the

25 first segment was narrowly defined to a particular

1 subject matter, and we would hope you would consider

2 that in your deliberations over the next few days.

3 Ms. Ponzoli said there wasn't just a pollution

4 problem that they were dealing with in the Everglades,

5 that somehow the task force report is only a, and I am

6 using my words, I don't remember it verbatim, but that

7 there was a separate study going on, and it didn't

8 affect what we were doing here.

9 Well, I suggest that is absolutely incorrect. The

10 Marjory Stoneman Douglas Act legislation mandated that

11 this one plan deal with restoration, hydroperiod, and

12 compliance with water quality standards.

13 Hydroperiod. That federal government report talks

14 about hydroperiods. That is a big issue in the

15 Everglades, the big issue.

16 We will prove that in this case when we get there,

17 whenever it is. We will show that as a matter of fact

18 that that is the problem in the Everglades, and now the

19 government is dealing with a new plan where they are

20 beginning to recognize it.

21 And to push that off and say, "Well, it doesn't

22 really matter," we think is absolutely incorrect,

23 because it proves we need the time, what precious little

24 time we had before we embarked on the stays, we need

25 that time to bring that case to you, Your Honor, so you

1 can resolve these issues.

2 Now the 30 witnesses per side of all types, that is

3 absolutely arbitrary. How can anyone possibly agree to

4 that before we haven't even been through discovery yet

5 with the real witnesses?

6 HEARING OFFICER: A case of this magnitude could go

7 on forever.

8 MR. GREEN: Yes, sir.

9 HEARING OFFICER: You could go on, or we could sit

10 here and depose witnesses until, you know, the end of

11 time.

12 MR. GREEN: I agree with that, and, Your Honor, I

13 am suggesting the schedule essentially that Mr. Earl

14 showed ought to be the schedule, and we just get there

15 from here, get through all of them.

16 HEARING OFFICER: Well, what about capping

17 witnesses? Are you saying don't do it?

18 MR. GREEN: No, I think the earlier number we

19 talked about, we hadn't heard the 30 cap today, but 40

20 experts per side I think is real.

21 I think by the time you get to pretrial, 90 days

22 down the road, that will be in the realm. You may be

23 closer to 30 experts per side, maybe less, but we just

24 don't know yet.

25 I think it is unfair to make us decide yet.

1 HEARING OFFICER: Well, you know, as Mr. Reid said,

2 it would not necessarily be cast in stone. If you could

3 demonstrate you needed more than that, then we could

4 deal with it down the line.

5 MR. GREEN: Yes, sir. I would urge you to consider

6 it the other way around, that you put it at 40 with a

7 definite number that it might go down if we can't

8 justify it at pretrial. That way it is fair.

9 That's our perception. Your Honor, again I go

10 back, we are representing farmers out there. This is a

11 big case. And it has been going on for a long time. No

12 question about it.

13 But if there was ever a case in a history of DOAH

14 where full discovery was warranted, this is it, and we

15 are only talking about it looks like five, six, seven

16 weeks difference between an April, late April, mid April

17 hearing and a June 1st hearing.

18 We urge you to give us that time. That is all I

19 have. Thank you.

20 MR. EARL: I would like to address two things, if I

21 may. One is a little about the issues we might be

22 segmenting. I think we are having an abstract

23 discussion here, and I think there is some fundamental

24 difference in what this case is, and then I would like

25 to go back to discovery.

1 What are we sequencing or staging, if that is your

2 decision? We have heard talk this is water quality,

3 this is pollution, but it is not just that. This case

4 is about the validity, lawfulness of a plan called the

5 SWIM plan, whether it meets the statutory requirements,

6 whether it meets the statutory requirements of

7 hydroperiod, whether it meets the statutory requirements

8 that water quality be remedied.

9 In terms of water quantity, it is not just about

10 the farmers, but about what the federal government has

11 done since 1947 to move the water in sheet flow and

12 follow it down where you have excess phosphorus loading,

13 how they decided it, how the Water Management District

14 operates the system. They made a unilateral decision in

15 1979 to funnel 20 per cent or more of the water down to

16 the south instead of going. It is about that, too.

17 It is a broad case. It is about hydroperiod.

18 The reason we raised this federal study and why it

19 is so dramatic is we have just heard for four years,

20 five years, you can handle water quality, just handle

21 water quality. This document flat out says you can't

22 cure the water quality in the Everglades restoration

23 until you cure the water quantity problems, Mr. Menton.

24 And the reason for that is, number one, the

25 phosphorus particles are transported by water, designed,

1 built, constructed, and operated by that side of the

2 room.

3 Number two, they have, so it is a question just in

4 terms of getting hydroperiod, who put the water where?

5 It is much broader.

6 My concept of how a segmented trial might go, and I

7 would remind opposing counsel that we are the

8 petitioners and in a 120.57 hearing we do frame the

9 issues, and if he wants to know the issues, there are

10 petitions, but what are the issues, and how could we

11 segment it? A possible approach, Mr. Hearing Officer,

12 would be the first stage would be some of the threshold

13 issues, compliance with the SWIM statute, has that

14 agency followed the statutory process that is required,

15 the notice provisions? Have they made the proper

16 statutory evaluations and done the economic analysis?

17 Just the threshold issues on the face of the statute,

18 have they complied with that?

19 The next might be what is the base line we are

20 dealing with, Mr. Hearing Officer? What is the historic

21 Everglades that they want to return it to that the

22 federal report said would flood 70 per cent of the area,

23 because that is the only way to cure the Everglades

24 problem?

25 That would include the topography, drainage

1 patterns, foundation, soils, flora and fauna, the

2 pre-federal project.

3 That's our base line if we want to restore, which

4 is the Marjory Stoneman Douglas mandate, to know the

5 base line.

6 Another component, Mr. Hearing Officer, would be

7 the manmade impacts, what happened to that base line in

8 the Everglades, how was it divided up into reservoirs

9 and ditches and canals? Who did that? What was the

10 purpose of that project? Why did they do it? Did they

11 at that time consider, the federal government and the

12 Fish and Wildlife Service, did they even know what they

13 were doing, that they were going to really damage the

14 Everglades?

15 It would include what has the operational history

16 and the overall impact of the project operation been,

17 not only on the hydroperiod, but on the water quality?

18 The third component, Mr. Hearing Officer, would be,

19 which I think the opposing side of the case believes is

20 the only issue, but it is the existence, location,

21 extent of violations of water quality standards, and

22 those are the listed standards.

23 I would also include the validity of the proposed

24 standards, are they valid? Would they be exceeded?

25 Next, Mr. Hearing Officer...

1 HEARING OFFICER: Well, let me interrupt you a

2 second. The items you are talking about, it would seem

3 all of those could be easily covered within the scope of

4 a first stage of the proceeding.

5 The last point, the validity of the Everglades

6 standards, may be different. Then we start getting into

7 other issues.

8 But certainly as I have been thinking about in

9 terms of staging those issues that you talked about

10 would all be within the scope of the first stage.

11 I don't know that we are talking at cross purposes

12 here.

13 MR. EARL: We think the proposed standards because

14 they relate to 50 parts per billion are proposed to be a

15 surrogate, for example, for the nutrient imbalance,

16 something technologically achievable, you heard a

17 variety of explanations, that needs to be explored. Is

18 that valid in terms of damage? If they want to assess

19 that, when does that come? That's an important

20 component.

21 The limits for the Loxahatchee and the Everglades

22 National Park have been determined to be essential

23 emergency interim standards. Are they in fact

24 significant?

25 HEARING OFFICER: Well, I'm not saying you don't

1 have an opportunity to go ahead and bring in all of your

2 evidence on the point. I wonder in terms of trying to

3 manage the case whether we want to do all of that at one

4 stage or some of these latter issues you've talked about

5 now might more logically be better broken off into the

6 second stage of the hearing.

7 That's the whole concept that I have been trying to

8 find, a way to logically break this down, number one, so

9 that I could understand it a little better and try to

10 put it in proper context, and, number two, just to make

11 the whole thing work easier.

12 I mean, I don't think, there is certainly no intent

13 on my part to use a staging or sequencing approach to

14 preclude you from raising any of the issues that you

15 have talked about.

16 MR. EARL: I did not mean to imply that. But we,

17 those are interrelated, Mr. Hearing Officer, and another

18 factor which makes this an unusual case is as you

19 remember Judge Hoeveler said, "If you people disagree

20 with any of the proposed positions in the 1991

21 settlement agreement, which are in a large part

22 included in the SWIM plan, this administrative

23 hearing today, which the federal judge ordered, it's

24 your opportunity under Florida law and state law to

25 challenge the provisions and the facts in that

1 plan that you do not agree with."

2 So this is in a lot of respects an unusual process

3 that we are involved in.

4 HEARING OFFICER: I would agree with that.

5 MR. EARL: We would have another category, Mr.

6 Hearing Officer, to give you, where you characterize

7 those is obviously your judgment call, but causes of

8 water quality violations and relative contributions.

9 The components of that would be hydroperiod, water

10 management, operational decisions, phosphorus, fire,

11 drought, frost, manmade disturbance, project design,

12 project operation, other sources and relative

13 contribution of phosphorus, and that just in the early

14 stages, but I think all would concede this.

15 Our thought was that if you do decide to bifurcate

16 it, and obviously these could be broken up into whatever

17 components that you wanted to break it up in, there's no

18 lock on bifurcation, it could be five-furcation or

19 four-furcation.

20 (WHEREUPON, MR. WRAGG LEFT THE HEARING ROOM.)

21 But if you are going to bifurcate, we don't agree

22 with it, we object to it, but if you are going to

23 bifurcate the remedy issue in our mind that would be the

24 STAs, the viability of those and the related programs of

25 the STAs.

1 Again we would object to it, but in our mind that

2 would be the remedy you would be looking at.

3 If I may now go to our views on discovery. We

4 concur with what Mr. Green said with one exception. We

5 would agree, and we think if you are going to have a

6 very short time table we think it is essential that

7 discovery continue during this process, segmenting the

8 hearing process and the discovery process. We would

9 agree to a reasonable limitation on expert witnesses.

10 We have suggested 40.

11 HEARING OFFICER: What about the adverse and fact

12 witnesses? I noticed that was a very clear proviso on a

13 limitation in your brief. What are we getting ourselves

14 into if I were to recognize such a proviso?

15 MR. EARL: Let me give you an example why it is

16 necessary, why we can't be limited and have to make a

17 special showing.

18 We are dealing with two enormous agencies in the

19 State of Florida. I guess we are dealing with four or

20 five federal agencies.

21 There are a lot of people that they are not

22 listing. I can give you several examples of people who

23 are going to be critical adverse witnesses.

24 Dr. Bo Smith, the Corps of Engineers' environmental

25 impact analyst. He was not listed as a witness, but

1 when he was deposed we found his testimony is that one

2 of the issues in the case, Mr. Hearing Officer, is

3 whether the phosphorus resulted in the breaking apart

4 and crumbling of the periphyton mats that is integral.

5 Dr. Smith testified in his deposition that in the

6 park in the south part of the Water Conservation Area

7 Three that the area in which this mat, it was much more

8 loss caused by the dryout as a result of the operation

9 of the process of construction, and much more periphyton

10 was lost than from phosphorus.

11 Let me give you two other examples. If you will

12 remember several hearings ago you said we filed a motion

13 to compel, and there were two doctors, Mosh Ready and

14 Mr. Kitchens, there was a federal extension service at

15 the University of Florida, and you said rather than

16 force it, so we filed a subpoena. Well, they have not

17 listed them as witnesses. They have done critical work,

18 which one of the witnesses relied on, but they have not

19 listed them at witnesses. That's Mr. Kitchens and some

20 of the others.

21 Again he is one of the authors of this study, 13

22 authors and contributors. Some of these people have

23 been deposed. Three or four were deposed. The others

24 haven't. We have added that to the list.

25 But we are against some pretty formidable forces.

1 By way of example, what has happened in the past,

2 Mr. Lehtinen when he was the U. S. Attorney and

3 Ms. Ponzoli, this is a list of their depositions. Most

4 of these are, 86, they have noticed 86 depositions of

5 Water Management District officials and employees and

6 these others, too. When they were trying to get

7 discovery together they had these. We went on and on

8 and on.

9 MR. REID: Were those deposed?

10 MR. EARL: Noticed. Many were deposed. These were

11 noticed.

12 And they were scheduled until the settlement

13 between the state and federal government.

14 So we haven't reached this scale, but we have a

15 burden here, a tremendous burden, against substantial

16 forces and hundreds of people.

17 We are not going to abuse it. We would ask you, we

18 relied on it in the stay, the original amount of

19 discovery time we had, which was I believe 64 or 65

20 discovery days left, actual days of discovery, and we

21 asked the opportunity, we can't limit adverse witnesses

22 until we are done, because there may be five more who

23 have devastating testimony, but we don't know that, and

24 those certainly are not going to be listed, the good

25 people, other than their professional consultants and

1 experts.

2 HEARING OFFICER: Let me ask you a question, you

3 and Mr. Green, and I don't want to get into the

4 specifics of the mediation process, but during that

5 extended process, which went on for close to a year, I

6 guess nine months probably anyway, I would assume that

7 there was a great deal of exchange of information and

8 that there was, even if there wasn't formal discovery,

9 at least a lot of revelation as to what would come out

10 at a final hearing.

11 That's the way I have always understood the

12 mediation process to work. Did that take place?

13 MR. EARL: Just briefly. What happened was there

14 was a lot of discussion which came up with the plan,

15 that folks for representatives of all of the parties

16 came up to, and you saw the plan, the new plan, which is

17 substantially the same, there was an interchange in that

18 of engineering terms, where we will move the STAs, but

19 there was no exchange of technical information.

20 While we were engaged in mediation they were, many

21 of the same people were, Mr. Ring, for example, was

22 drafting this report calling for flooding 70 per cent of

23 the Everglades.

24 HEARING OFFICER: That was my next question.

25 Having to go back to the task force.

1 As I have understood what I have heard from

2 Mr. Reid today and Ms. Ponzoli, they are essentially

3 distancing themselves from that task force report for

4 this proceeding. They're saying, "We are going to go

5 with our SWIM plan as is and go to hearing on that."

6 Now you may think that that isn't sufficient or

7 doesn't meet the statutory requirements, and at this

8 point I don't know, but if that is the approach that

9 they are going to take, then why do we have to worry

10 about it?

11 MR. EARL: Well, these are admissions. They are

12 many of the same people. Mr. Ring is Superintendent of

13 the Everglades National Park, as the author of this

14 report and the Chairman of this report makes dramatic

15 admissions in here.

16 HEARING OFFICER: Do we have to get into a full

17 blown discovery regarding how that thing was put

18 together? I mean, you can make your point that the

19 report speaks for itself at the hearing, and I will

20 either agree with you or disagree with you, but I just

21 don't know we need to get sidetracked if the District

22 says we are going to go to hearing on the SWIM plan,

23 then let's go to hearing on the SWIM plan they've got.

24 MR. EARL: I apologize for not communicating well,

25 Mr. Hearing Officer. We are not asking, this is not a

1 plan we want you to consider or a de novo process

2 modified. We don't think they are going to do it.

3 What this is is a dramatic turnabout in the

4 federal, they have been telling us for five years that

5 you can cure water quality without taking care of water

6 quantity. This study is just the opposite. It

7 undercuts the credibility of their people and their

8 basic position, so we need to go talk to these people,

9 get them under oath, and find out is that their

10 position.

11 It directly conflicts with what many of their

12 people have been saying in depositions for four years.

13 HEARING OFFICER: Well, you know, we can, I guess

14 the concern I have is we can really get this thing, go

15 off on all kinds of tangents if we want to, but I am

16 having a problem with the idea we have to conduct full

17 blown discovery regarding preparation of that task force

18 report as part of the preparation of the hearing on the

19 SWIM plan.

20 You can cross-examine witnesses, and you can

21 question the validity of their opinions during a hearing

22 by using the task force report or any other document or

23 studies that you have, but I guess I am just concerned

24 from what I am hearing from you that we need a discovery

25 process into a lot of issues that are not directly

1 related to the SWIM plan.

2 MR. EARL: It is the fundamental issue in the SWIM

3 plan, Mr. Hearing Officer, whether hydroperiod or

4 whether nutrients are responsible for most of the

5 damage.

6 HEARING OFFICER: But, you know, it would seem to

7 me that you could make that case without getting into a

8 lot of extraneous issues on other reports and studies

9 and other things that were done.

10 You can through your witnesses present testimony to

11 support your contention that the SWIM plan doesn't stand

12 on its own.

13 MR. EARL: It is much more effective coming from

14 the federal government's own studies and witnesses, and

15 to do that safely and comfortably I have to depose them

16 first.

17 I am going to take only the ones I have to take,

18 but I represent that to you as an officer of the court

19 and before DOAH that I need to do that. It is a crucial

20 juncture in the case and a turning point, in my

21 judgment.

22 MR. GREEN: Mr. Menton, you mentioned my name with

23 regard to an earlier remark, and I just want to say the

24 discovery that we were trying to preserve was predicated

25 on the original plan.

1 Secondly, with regard to mediation, honestly I was

2 hoping that reason would prevail, but it didn't.

3 I thought some of the issues did come into focus,

4 and we are not getting into those, and if they hadn't

5 there might not have been any interest on the part of

6 those who were agreeing that the first plan should be

7 significantly changed, but that didn't happen.

8 We are ready to go. That's the original plan. If

9 that's the baby they want, they are ready. Let's do it.

10 June 1st.

11 MR. HOFFMAN: Mr. Menton?

12 HEARING OFFICER: Mr. Hoffman?

13 MR. HOFFMAN: I know we have been quiet for a long

14 time over here, but I do want to comment about some of

15 this, because this is touching on the two major points

16 that concern me the most.

17 Number one deals with the segmentation again. Just

18 as I predicted, counsel for the Sierra Club and others

19 told you they want an order of some kind or a finding of

20 some kind.

21 If you listen carefully to the comments, starting

22 out with the Sierra Club Legal Defense Fund, you were

23 told that if you don't there will be an opportunity for

24 settlement. We have been told about a bludgeon for

25 settlement. They are using better words before Your

1 Honor.

2 They also said if you find there is pollution in

3 the Everglades, that means something. That's, I think

4 Mr. Earl is very on point when he tells you that finding

5 pollution in the Everglades is not the issue. The issue

6 is all this massive intertwining of the problems with

7 the hydroperiod, hydrology changes by the government

8 itself.

9 I don't see that you have any authority to issue a

10 directed verdict. You may have done that in one case,

11 but you have been given today anecdotal comments that in

12 one civil rights case one lawyer in this room had with

13 one civil rights judge it worked out neat.

14 That's got nothing to do with this case, which is

15 so intertwined and complicated, and the factors that

16 Mr. Earl brought out are particularly prudent.

17 Even in a personal injury case, where you can

18 segment out liability and damages, that's not done.

19 Juries don't come up with a verdict, or the judge

20 doesn't give a directed verdict on liability unless

21 there is agreement.

22 The same thing that goes with other cases. It is

23 possible, but not when everybody, when those that are

24 major parties object, and not when it is so prejudicial,

25 and particularly when there is no authority to issue a

1 directed verdict.

2 We would have authority to appeal I think any

3 decision you made on findings of fact. You certainly

4 would have the right to apply for proposed orders, and

5 you would have to send it to the agency.

6 I just don't believe that we can live with that or

7 you could live with that.

8 Secondly, when it gets to the witnesses, my client

9 does not have the resources to go to all of these

10 depositions, but we listen in on every conference call,

11 and I have been shocked in the last few days to hear

12 that major witnesses of the federal government proposing

13 this are not available for months we have been told.

14 They are not available.

15 There are also witnesses of the League that are not

16 available for some period of time.

17 It seems to me that this Hearing Officer acting as

18 a judge can re-establish some people's priorities. If

19 they have a witness that is a major witness, make

20 himself available. You make him a priority, not the

21 other business you've got. You can handle that as the

22 judge.

23 I think that should be done. I am shocked at this

24 stage of the case we are told that, the League is told,

25 I am not going to the depositions, not on that many

1 cases, the federal government is sorry, but they are too

2 busy to be deposed.

3 I think thirdly with respect to the witnesses there

4 are time savings to be had when you have a witness on

5 the stand and the opposing party has questions that are

6 not cross-examination questions but are direct questions

7 that he would use if he would call a witness, all the

8 Hearing Officers out of here have allowed people to ask

9 questions to save calling him back.

10 From our viewpoint of the case, the fruit and

11 vegetable growers, it has been because of our limited

12 resources, we believe that there are honest state,

13 federal, and District witnesses, and there are some that

14 are not so honest, but some when on the stand would give

15 their views on the hydroperiod, and that is why we

16 listed witnesses that worked for the District and

17 incorporated in our list those witnesses listed by

18 others.

19 I think the adverse witnesses are very important.

20 We would not know which ones would be helpful until we

21 know which witnesses controlled by a party ought to be

22 called.

23 I think it is proper to single out witnesses so

24 that there is a listing of witnesses that each party

25 knows they are going to call who are experts.

1 Then we will know if they are not going to call

2 witnesses who actually have done stuff which is crucial

3 to this case. If a witness who works for the state

4 government or the federal government now says that the

5 fundamental problem is hydroperiod, that is not a

6 different issue. That is not a sideline. That is new

7 discovery. That is crucial to the case as to whether

8 the theory that pollution is caused by somebody, and

9 that's the end of it, prevails. We think that is why if

10 there are adverse witnesses, there have been reports by

11 a lot of agencies in the last year or so that indicate

12 other causes of this phosphorus problem, if there is

13 one, the pollution problem.

14 Those witnesses would be very helpful, and they

15 work for the other side.

16 I would not depose them. Mr. Earl would depose

17 them. I would say get them on the stand somehow, either

18 when they are on the stand already, and ask permission

19 to ask questions on direct when the come to cross, or

20 subpoena them, and take their own documents and use

21 them. I think it is important.

22 If somebody just wants to pin them down, they can't

23 deny their own statements.

24 And I think what you are also going to find, the

25 last comment, and this is one as a trial lawyer, when I

1 listened to the comments of the folks here today, you

2 will recall the comments from the federal government

3 that so and so is not available for four days, if we

4 bifurcate this, and it is only Issue A, so they will

5 make him available for only one day.

6 We will have people being deposed, by the way, and

7 there will be questions that might overlap the first

8 segment. It doesn't seem to make sense to me to have to

9 go back and redepose people and drag out the case.

10 It seems to me if you start the case the 1st of

11 June or whatever was suggested and force people to get

12 their discovery done and not do it one day then and then

13 have the guy who was so busy that you can't have him

14 available to come back and find him for four days, I

15 think it will make it more difficult.

16 One of the problems with mediation as a mediator

17 myself is you don't really exchange a lot of factual

18 data, because even though when you are in mediation what

19 you do exchange is not admissible in court, people use

20 it in PI cases and everything else for discovery

21 purposes later. That's not immediately usable.

22 So people don't bring all of that stuff to the

23 table. They just talk about concepts and policies and

24 whether they can settle on a concept. That almost

25 occurred here. Unfortunately, it didn't.

1 I don't think that you can assume there was a

2 massive interchange of documents or technology or data.

3 That would be a false assumption.

4 HEARING OFFICER: All right. We have been going on

5 and on and back and forth, and we can continue to do

6 this, but...

7 MR. REID: Like in depositions. I have been taking

8 them for 20 years, and I can't possibly be old enough to

9 say I've been doing anything for 20 years, but I have,

10 and the length of these depositions, they will go on and

11 on.

12 If you go back to the basic concept, practically

13 every document has been handed over, every report. It

14 is all laid out. All these depositions they talk about,

15 I don't know, I will bet they have all the copies of

16 these depositions.

17 I think we are at the point where we can list

18 witnesses. If they have District staff they want to

19 include, they can list them.

20 You know, to leave it open ended is very adverse.

21 We have a lot of people that may have some information

22 and involvement, but I've got to take the deposition to

23 make sure or to get that.

24 I think the bottom line is we are willing, the 30

25 number, by the way, is not an arbitrary number. It was

1 based on all of the discussions that we had during the

2 last few weeks and based on looking at the witnesses we

3 think we needed to call to litigate the case, and we are

4 willing to live with it, but on the other hand we are

5 willing to open it up again.

6 I don't think there should be a case of exchange to

7 take 13 people's depositions on one report when you have

8 the report, hoping one would say what you want.

9 We are 98 depositions into the case. I don't want

10 to throw stones, but, you know, to say all the witnesses

11 were ready with their opinions, and none of ours were,

12 you know, I have been through five days of Curtis

13 Richardson. I took Dr. Rackau, and he said he wouldn't

14 have any opinions until his graduate student finished

15 and did the work, and then he would have opinions.

16 It goes both ways. The experts in some cases said

17 they were ready, and in a lot of cases said they

18 weren't, because it was preliminary at that time.

19 But that doesn't, the time has to come to impose

20 discipline on the case, and we are not that far off.

21 The range of this, if you go back to the four things I

22 suggested, the range of the trial dates, you've got

23 between April through about 65 days, and I am

24 comfortable with picking a date that makes sense.

25 So far as the limitation of the witnesses, you've

1 got some range there, but I think it ought to be a real

2 limitation, not a limitation, and I did want to ask one

3 question.

4 During our talks last week there was always another

5 limitation of rebuttal witnesses, and it is not in the

6 papers, so I assume that there is no objection to that,

7 and there ought to be another category called rebuttal

8 witnesses that you do not have to list at this point.

9 So I think you have heard all about the witnesses,

10 and I don't think you are doing anything that will

11 permanently harm anybody, but if you count up the days

12 and the hours and the number of lawyers the number in

13 the 30 range makes sense to get it done.

14 (WHEREUPON, MR. HOFFMAN LEFT THE HEARING ROOM.)

15 HEARING OFFICER: You raised one issue there that I

16 am curious about. Earlier, before the mediation effort,

17 when we were doing the discovery schedules we had some

18 discussions about dates for witnesses to finalize their

19 opinions and that sort of thing. There has been a lot

20 of time that has passed since then. Is there still a

21 problem?

22 MR. REID: Well, we don't know until we actually,

23 you know, we pulled a plug on a lot of the ones during

24 mediation, because we were focusing on the mediation,

25 and now it is time.

1 The experts are going to have to reach their

2 opinions. We are not going to have but one more chance

3 to depose them, and they will have only one more chance

4 to depose ours, and I would assume that the experts will

5 have to have opinions. So, you know, I think we are

6 past saying that that's a problem.

7 This last schedule needs to be a real schedule, and

8 that is why I am saying make it a manageable number.

9 The third thing I mentioned was the prehearing

10 conference, and with your permission perhaps, maybe I

11 will file a motion setting out a format for having that

12 sort of hearing and getting those issues resolved and so

13 forth, and if people, if we have a hearing next week

14 maybe that could be the topic, if you would like to go

15 that way, have a prehearing conference where they have

16 to say what the issues are.

17 Then the final thing is the phasing. I don't think

18 we need, it is all hypothetical until we get to the

19 point of actually having to make a decision, and I think

20 you have heard a lot today, and I would think that could

21 be decided as we get further down the road.

22 HEARING OFFICER: Mr. Green, did you have something

23 you wanted to add on the expert witnesses?

24 MR. GREEN: Well, just your question about the

25 opinions, that gets me back to the extent there are

1 major, potentially crucial, key government witnesses we

2 haven't gotten to yet, and they're getting to our

3 people, asking what their final opinions are, when we

4 haven't discovered the witnesses yet is a strange

5 situation.

6 Maybe we need to go through this stage first in

7 discovery and complete that and then come back to ours.

8 MR. REID: I have another response. We have a SWIM

9 plan. All documentation that went into it is in those

10 books. That's our science.

11 I assume they have one who says it is no good

12 because of "X". If anybody has opinions, it ought to be

13 them.

14 Now I am saying I know how lawyers get ready for

15 trial. You get as much time as you can before you have

16 to get to the final point, and that is how lawyers are,

17 and I am a lawyer, and I admit that.

18 We have the luxury of doing that, because you know

19 you will not have a trial or whatever, and you might

20 settle it, and maybe you won't have to pay the experts

21 money. All those things come into play.

22 I am saying now if you are going to set an

23 expedited hearing, and they found out this morning and

24 asked you to do, I can bring lots of witnesses in and

25 depose those who were not ready just as much as they

1 can, but I don't think we have to get into that.

2 HEARING OFFICER: Okay. I think we have been going

3 on here. Why don't we take about a 10- or 15-minute

4 break? I need to think through this a little bit. I am

5 struggling with a cold.

6 I don't know what we are going to do with the

7 people on the phone. Mr. Lehtinen, etcetera, can you

8 hold on for about 10 minutes while we take a break so I

9 can try to pull my thoughts together?

10 MS. CLEMENTS: Could we reset the call?

11 HEARING OFFICER: Okay. I don't know who

12 coordinated this to begin with. Mr. Green?

13 MR. GREEN: My office did.

14 HEARING OFFICER: Perhaps during the break Mr.

15 Green can call his office and have it set back up.

16 MR. GREEN: My secretary might be at lunch, and

17 then we will lose them.

18 HEARING OFFICER: Put your call on hold, and we

19 will be back in 10 minutes.

20 (WHEREUPON, THE HEARING WAS RECESSED FROM

21 12:17 P.M. TO 12:37 P.M., AT WHICH TIME MR. WRAGG WAS PRESENT

22 IN THE HEARING ROOM, AND MR. WEDGWORTH AND MR. REED WERE

23 ABSENT.)

24 HEARING OFFICER: Ms. Clements, Mr. Lehtinen,

25 Mr. Wedgworth?

1 MS. CLEMENTS: Yes, this is Ruth Clements. We are

2 still here.

3 HEARING OFFICER: Okay. Who else was on there.

4 Mr. Wedgworth? Mr. Reed? Well, I guess whoever wanted

5 to stay on is on. Mr. Earl, did you want to say

6 something?

7 MR. EARL: No, I have talked enough for one day.

8 HEARING OFFICER: Okay. Let me make a couple of

9 points here to see if we can get this thing on the road.

10 To be honest, given some if the previous hearings

11 we had and some of the motions and pleadings that have

12 been filed and the documents that I have been through, I

13 am a little bit surprised at the way the case is

14 progressing in terms of going back to the original plan.

15 For some reason I was beginning to think that

16 wasn't what was going to happen.

17 The District stated that's what they intend to do,

18 and it makes things easier.

19 I think it obviates the need to worry so much about

20 staging and some of those issues right now, although I

21 want to keep those options open as we go to the final

22 hearing stage.

23 I think everybody has to be aware of this. How it

24 will go, I don't know.

25 That is the concern that I have, you know, one we

1 have talked about a lot, but at this point I have no

2 choice but to go forward with the case as it is before

3 me and with representations by the District that they

4 are going forward with their plan as originally adopted

5 in March of '91. That's the way we are going to do it.

6 With that in mind and with that precondition what I

7 want to do is have both sides, the proponents of the

8 plan and those that are against the plan, sit down and

9 make a list of the 30 witnesses that they intend to call

10 on the original plan that we've got. That includes

11 adverse witnesses and factual witnesses.

12 In terms of experts that are within the control of

13 a particular side, I want them to contact those experts

14 and confirm that their final opinions have been reached,

15 and if they haven't then I want to know why they haven't

16 been, and I want them to give some dates for

17 availability to make themselves subject to depositions.

18 I don't at this point intend to limit the parties

19 to 30 witnesses per side. I want to start with 30, have

20 everybody limit it to 30 that they know, and I am sure

21 that everybody can pick out 30 that they feel pretty

22 confident about.

23 If you know that there are additional witnesses

24 that are not on the 30, put them on a separate list, and

25 I want them also to be contacted, and I want to know why

1 they think they are necessary and were not included in

2 the 30.

3 And I also want to have confirmed whether final

4 opinions have been reached and when they will be

5 available for deposition.

6 To the extent that there are witnesses beyond the

7 30 that are on the first list, I would like the parties

8 to try, both sides, to try to discuss between themselves

9 to see if they can reach some agreement as to whether or

10 not there is a consensus that it is clearly necessary or

11 clearly appropriate and can be added without having to

12 come back to a hearing, and if you can't reach

13 resolution on that we will take it up at the next

14 hearing we have.

15 In making this list I obviously expect that both

16 parties will go back through the original witness list

17 that they filed in the case as well as the previously

18 developed discovery schedules and determine whether or

19 not those witnesses do in fact need to be called and o

20 in fact need to be deposed.

21 I don't at this point want to impose a limitation

22 on discovery to only those 30 listed witnesses. I

23 might, I think there may be some areas that haven't been

24 fully explored at this time, and I am going to leave

25 that option open. But I am directing all the parties to

1 focus their discovery efforts on the witnesses that will

2 be called, and there will be no excuse for not taking

3 the deposition of an adverse party's expert witness who

4 is made available simply because you are doing discovery

5 on other issues.

6 If we need to create another window to discovery we

7 can talk about it down the line.

8 All right. I want with these witness lists that we

9 have come up with, I want the parties to try to set a

10 discovery schedule to start the hearing on April 25th.

11 I will not cast that in stone. If I can be convinced

12 that everybody is working diligently and for whatever

13 reason we need to push it back, we may have to do that,

14 but today I want to look forward to getting ready to

15 start then.

16 I do expect that the final hearing will be staged

17 or sequenced to some degree. I think at this time we

18 don't need to finally resolve that.

19 In terms of doing a separate recommended order I am

20 going to leave that option open. I am not, I want to

21 give more thought to it.

22 I do foresee some problems if there is opposition,

23 and I do have concerns about whether we can clearly

24 segment out issues that would make it a workable

25 scenario, but I am going to leave that option open, and

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1 we can discuss that as we get closer to the hearing

2 date.

3 I want to set up a prehearing conference much along

4 the lines of what Mr. Reid talked about, at which time I

5 hope to narrow the issues that are involved in this

6 case. I would ask the petitioners to review the

7 petitions they filed in this case, determine whether

8 there has been any change in the various issues that

9 they have raised, as Mr. Earl pointed out earlier,

10 determine whether some of them can be dropped or not,

11 and also specifically review those in light of the

12 motion to strike that Mr. Reid filed way back at the

13 beginning of his case.

14 I want to try to sit down at the prehearing

15 conference and see if we can resolve some of the issues

16 raised in that motion to strike and narrow the issues

17 that are actually in dispute in this case.

18 Those are my preliminary thoughts on the issues at

19 this time. I understand that there is a Water

20 Management District Board meeting next Thursday. At

21 least from the last hearing we had that is what I was

22 told. We had tentatively scheduled another hearing on

23 this case for the following day, January 14th, in case

24 there were some changes or developments that needed to

25 be taken into account. I don't know what the status of

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1 that is.

2 MR. REID: There is a meeting. That's all I can

3 tell you. I can't predict the future.

4 HEARING OFFICER: Well, do you want to tentatively

5 keep the 14th date available, and if you need, if we

6 need to have a hearing we can do it by phone or do it

7 here, which ever way you want to do it? I will leave

8 that date open and be available. Ten o'clock. I'll be

9 available here. If anyone decides that's not necessary

10 we will just call my secretary and let all the parties

11 know, and we can cancel it.

12 MR. REID: When did you envision the prehearing

13 conference?

14 HEARING OFFICER: I was going to ask the parties to

15 try to think through some of these ideas that we had

16 today and give me their best guess. I am looking some

17 time in February, mid February. We can discuss that a

18 little bit.

19 Even if we don't have a hearing on the 14th we

20 probably need to go ahead and schedule another update to

21 discuss any problems that have arisen with respect to

22 the schedules and so forth.

23 Probably a week is maybe too short. I think you

24 will need some time to get a hold of the witnesses.

25 Maybe the following week, on the 21st, and take it up at

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1 ten o'clock.

2 We can take up any issues that we have that come up

3 with respect to the witnesses, and on the 21st I think

4 the parties ought to be prepared if it is a separate

5 list beyond the 30, they need to bring them with you,

6 and we will talk about them and resolve it, and then we

7 can get this on the road.

8 MR. NETTLETON: Mr. Hearing Officer, do you have a

9 date to exchange the 30 list?

10 HEARING OFFICER: Yeah, I mean, if we are looking

11 at having a hearing on the 21st, obviously early in that

12 week, maybe that Monday.

13 I think the parties ought to plan on trying to

14 exchange those lists and see if they can resolve some of

15 the issues for those that go beyond the 30, or if there

16 are particular issues, and try and set up a discovery

17 schedule.

18 MR. HYDE: I take it the April 25th hearing date is

19 the final hearing date for all purposes?

20 HEARING OFFICER: To start the final hearing date.

21 Correct.

22 As I indicated, I want to see how this discovery

23 schedule breaks out, see what the witness list looks

24 like, and I will revisit it if I have to, but I want to

25 start with the 30 and try to get to hearing on the 25th.

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1 If not, if we can't do it, then I will listen to you on

2 the 25th and move it back.

3 It would be with the idea of having all discovery

4 completed and having all of the case, the whole case

5 ready to go.

6 I do think that I would like the parties to focus

7 to the extent possible in setting up the discovery

8 schedule, to focus on those witnesses that deal mainly

9 with the existence of the, quote, problem, the cause of

10 the problem, and some of the issues that Mr. Earl had

11 talked about when he went through the list on the first

12 staging point.

13 I would like to try to make sure we get those

14 witnesses completed and discovery completed, because I

15 do expect that we will end up staging or sequencing

16 this.

17 MR. HYDE: Do you contemplate a discovery cutoff

18 prior to the 25th?

19 HEARING OFFICER: Well, yes, I certainly would

20 expect a discovery cutoff prior to that date. Those are

21 issues that we can discuss as the discovery schedule

22 crystallizes a little more.

23 We will take that up on the 21st.

24 If you can get together and come up with a schedule

25 that includes the discovery cutoff that's acceptable to

104

1 everybody and propose that to me on the 21st, I am

2 willing to live with it. If not, then we will take up

3 issues as to why we can't do that at that time.

4 MR. HYDE: I can just say at this point that we

5 will probably want as much time as possible to continue

6 and complete our discovery. It is going to be very

7 difficult to complete even the depositions of the 30

8 listed in that time frame.

9 HEARING OFFICER: Okay. Well, I mean, we will take

10 that up on the 21st. What I want to do is get started

11 on this and get these lists together of the 30

12 witnesses, some of whom may already have been deposed,

13 and if they have already been deposed then I think there

14 needs to be an evaluation as to whether there is any

15 change in the opinions or conclusions of the witnesses

16 that would necessitate additional discovery, and if so

17 then that should be discussed between the parties, and

18 if it can't be resolved take it up on the 21st.

19 Okay. I think that concludes the thoughts I had.

20 Any clarifications anybody needed?

21 MR. FITZGERALD: Mr. Hearing Officer, on the

22 February calendar you mentioned a possible mid February

23 prehearing. There is a holiday.

24 We actually in our efforts to try to block out this

25 past week initial discovery had worked up to about that

105

1 week, which is the 21st, Presidents' Day, in February.

2 We would need I think to be aware of the day we do

3 that. I think it will take a good day probably, so that

4 we can kind of work around it in terms of what attorneys

5 might be doing discovery if we could come up with a date

6 for that. It would assist us.

7 HEARING OFFICER: I don't have my calendar in front

8 of me at this point. I am just getting back on track

9 and having trouble getting cleared out, so I can do back

10 orders before I go to this hearing.

11 MR. NETTLETON: Mr. Hyde just whispered to me

12 something. I don't believe the earliest possible will

13 really assist us.

14 In revamping at that time, so it may be necessary

15 resulted from whatever rulings may have been made at

16 that time in fine tuning the remaining discovery, it may

17 be at that point some of the witnesses we find we need

18 will drop out because of the witnesses and alteration in

19 the issues and so forth.

20 So the earliest in February would give us enough

21 time to get through that process. I realize it is

22 probably past.

23 HEARING OFFICER: I don't have my calendar in front

24 of me.

25 MR. REID: Yours won't be helpful to him.

106

1 MR. FITZGERALD: Well, I flipped it over. It is

2 just a basic calendar. I won't show you the discovery

3 schedule. I'll just show him the back.

4 HEARING OFFICER: All right. The 11th is a Friday.

5 Ten o'clock on the 11th. Any other issues?

6 MR. GREEN: Yes, Your Honor. Pursuant to your

7 suggestion the conference before last you asked us if we

8 evaluated the need for further entry and discovery.

9 Ms. Raepple would like to raise a matter filed

10 yesterday.

11 HEARING OFFICER: I don't think I have received it

12 yet.

13 MS. RAEPPLE: I have additional copies if anybody

14 doesn't have it with them.

15 MR. REID: It was faxed yesterday?

16 MS. RAEPPLE: It was faxed. Mr. Hearing Officer,

17 just briefly the petitioners, the Cooperative, Roth

18 Farms, and Wedgworth Farms requested entry into the

19 Loxahatchee National Wildlife Refuge and the Everglades,

20 the northern portion of the Everglades National Park for

21 the purpose of doing some recognizance on vegetative

22 conditions.

23 This recognizance would be done via helicopter, and

24 we request permission to set down with the helicopter,

25 which will be on pontoons, air filled pontoons, in

107

1 approximately 20 locations within the Loxahatchee and 10

2 locations within the Everglades National Park.

3 The recognizance would not involve taking of any

4 vegetation or wildlife. It would simply be for the

5 purpose of observing, taking notes, photographs, video

6 tapes of the vegetative conditions.

7 All of this would be accomplished during the

8 daylight hours. We anticipate, barring unforeseen

9 adverse weather, we could accomplish the entry into the

10 Loxahatchee within a two-day period and in the park a

11 one-day period.

12 In some informal discussions this morning with

13 Mr. Fitzgerald he has advised me that they do not have a

14 problem with giving an expedited request. I also asked

15 for an expedited request that they respond by next

16 Thursday, so that at the case management conference next

17 Friday if there were objections we could address it at

18 that time.

19 He indicated that we have not been given sufficient

20 information, and that last time there was a request for

21 entry, and it took five months to work it out.

22 Obviously we don't have five months at this juncture.

23 We would like to work it out as soon as possible.

24 Preliminarily Mr. Fitzgerald indicated a need to

25 know with precision the exact locations that we want to

108

1 observe to make this recognizance.

2 We of course are unable to do that. Not having had

3 access to these locations we cannot tell him where we

4 want to go other than to say that when our experts are

5 in the helicopter they will identify areas that appear

6 representative of the vegetation in the area, and they

7 will want to set down.

8 They are willing to take a U. S. Government

9 representative with them, so that they can confer and

10 agree on locations. We will agree to some limitations

11 to avoid public, points of public access, because the

12 government indicated an interest in not having the

13 helicopter near the boardwalks or whatever in the park.

14 We are willing to agree to certain reasonable

15 guidelines, but we cannot give precise locations at this

16 time, and we would ask that you instruct the government

17 to give us an expeditious response and let us into the

18 area, at the earliest possible time.

19 HEARING OFFICER: Okay. Mr. Fitzgerald?

20 MR. FITZGERALD: Mr. Menton, obviously there are

21 problems associated with this beyond just the lack of

22 specificity.

23 The problem with the expedited thing is that when

24 we get a special use permit the nature of the access

25 regime, as was in the case of the last access of the

109

1 petitioners, it is going to have to occur under a

2 special use permit.

3 I feel fairly confident it all other matters are

4 successfully addressed and resolved that the Regional

5 Managers would be willing to issue those.

6 I can't guarantee that at this juncture, because as

7 I recall my fax like 5:20, 4:20 last night, and I could

8 not reach them, and I tried to reach the Loxahatchee

9 Wildlife Refuge Manager this morning, and he was on the

10 road.

11 But you will recall, Mr. Hearing Officer, in fact

12 it took about five months to work out the inspection the

13 last time, in part because we had to sort out these

14 details. At that time it included the U. S. entry into

15 the EAA, and it was rather difficult and a contentious

16 thing.

17 Counsel if correct in one respect in the failure to

18 admit or recognize they have had access for recognizance

19 purposes already into both of those areas. They joined

20 in the effort of the Florida Sugar Cane League to

21 conduct certain entry and access testing, which included

22 vegetative inspection, video tapes, and everything else,

23 during the period of time you authorized prior to the

24 actual sampling situation. That occurred.

25 The Coop was part and parcel of that. Whether they

110

1 exercised it or not, they were.

2 To come in without very much detail specifying why

3 they didn't do it and why they need to do it again, why

4 they didn't do it when the opportunity was there is a

5 little perplexing to me, but I think we need to make

6 clear they have had access in the past, and whether they

7 chose to exercise it is a different issue.

8 They have been in the pleading as I say in

9 justifying an additional entry at this time for that

10 purpose, but I am willing to examine whatever material

11 they provide including, and I have referred counsel to

12 pleadings we submitted back when it was engaged before

13 about knowing who they are, where they are coming from,

14 it's got to be certified, and there are certain other

15 conditions, but I don't think any of those conditions

16 ended up being an impediment to the effort by the Sugar

17 Cane League, who actually conducted it in the

18 Loxahatchee or the Everglades to completing the entry

19 and access program envisioned by your earlier orders, so

20 to the extent those need to be addressed I think we can

21 accommodate that.

22 I don't have that high a degree of confidence to

23 say let's do it again and what we were resolved to do

24 when we committed to do seven, eight, or nine months

25 ago.

111

1 We have dealt with it right up until and during the

2 stay periods as you recall.

3 HEARING OFFICER: I haven't read it. It is not

4 ripe for me to resolve today.

5 Why don't we do this. Mr. Fitzgerald, take a look

6 at the request and the justification set forth and

7 determine if you will have objections, see if you can

8 work it out with Ms. Raepple. If you can't, then that

9 will give us something to talk about next Friday, at

10 least to have a telephone conference.

11 MS. RAEPPLE: Thank you.

12 HEARING OFFICER: See if you can work it out.

13 MR. HYDE: If I may, on behalf of the Sugar Cane

14 League we continue to analyze the soil samples, and I am

15 informed that although they don't have an answer yet

16 there may be a request for a very limited, one-day or

17 less, request to take additional samples, perhaps only

18 as few as six samples in the Loxahatchee, in order to

19 round out some of the parameters of the transects that

20 they sampled before.

21 If that's the case, I will put that in writing with

22 specificity and backup as to where those are and provide

23 that for the hearing on the 21st also.

24 HEARING OFFICER: Well, I think, you know, on all

25 of this stuff, as I have tried to do earlier on in this

112

1 case, I don't want to get into a bloated motion practice

2 with everybody spending their time filing motions and so

3 forth.

4 If you can work it out, try to do that first. If

5 you can't, then you can put it into a motion.

6 At this point given the schedule we are on

7 everybody needs to be focusing on preparation for the

8 hearing and not on motion practice and a lot of

9 extraneous issues.

10 And that was the attitude I tried to take earlier,

11 and certainly the attitude I want to take from here on

12 forward.

13 Everybody knows what the rules of the game are, and

14 I expect everybody to abide by them. We don't need 40-

15 page motions. Let's get focused and ready for hearing.

16 That's the better use of resources.

17 One final issue has to do with the actual hearing

18 itself and some of the logistics on that.

19 Mr. Hyde, I guess from the representations I heard

20 earlier you intended to revisit some of the issues we

21 discussed before on the burden of proof or something. I

22 am not sure. I don't know when you are going to be

23 prepared to do that. Do you want to do that on the

24 21st?

25 MR. HYDE: I think we would be as early as next

113

1 week. I think this really relates to the burden of

2 proof which has been fairly well reached for your

3 consideration.

4 HEARING OFFICER: We talked about a lot of those

5 things.

6 MR. REID: Maybe just call us and tell us.

7 HEARING OFFICER: See if there are some matters

8 that need to be discussed at hearing, and we will take

9 that up on the 21st.

10 MR. HYDE: It is simply how to structure the

11 hearing in terms of how the parties go forward to put on

12 their cases. I think that would be the most efficient

13 way of doing it.

14 HEARING OFFICER: See if there's agreement on it.

15 If not, then I will listen to it, to the position of the

16 various parties.

17 I think in terms of the actual, you know, who goes

18 first, we have discussed that pretty extensively, and I

19 feel comfortable with the way they came down on that.

20 We also had discussed where the hearing would be

21 conducted. I think as I recall the position I had taken

22 before was that I would essentially let the party who

23 was making the case in chief decide what the most

24 convenient location would be within certain parameters

25 and, you know, within certain efficiencies.

114

1 So give some thought to those matters, too, in

2 connection with the burden of proof.

3 We will obviously start with the District. Give

4 some thought to where you think the most appropriate

5 place would be to do it.

6 We can do that here obviously. If we are going to

7 do it somewhere else we need to give some thought as to

8 the location as well.

9 Okay. I think that resolves the issues I had. Any

10 other matters we need to take up today? Okay.

11 (WHEREUPON, THE HEARING WAS CONCLUDED AT 1:02 P.M.)

12 * * * * *

115

1 CERTIFICATE OF REPORTER _______________________

2 STATE OF FLORIDA )

3 COUNTY OF LEON )

4 I, SUE HABERSHAW JOHNSON, Certified Court Reporter,

5 Registered Professional Reporter, and Notary Public in and for

6 the State of Florida at Large:

7 DO HEREBY CERTIFY that the foregoing hearing was

8 taken before me at the time and place therein designated; that

9 my shorthand notes were thereafter reduced to typewriting

10 under my supervision; and the foregoing pages, numbered page 1

11 through page 114, are a true and correct record of the

12 proceedings.

13 I FURTHER CERTIFY that I am not a relative,

14 employee, attorney, or counsel of any of the parties, nor

15 relative or employee of such attorney or counsel.

16 CERTIFIED THIS 8th DAY OF JANUARY, A.D. 1994, IN THE

17 CITY OF TALLAHASSEE, COUNTY OF LEON, STATE OF FLORIDA.

18 STATE OF FLORIDA )

19 STATE OF LEON )

The aforesaid instrument was acknowledged

before me this 8th day of January, 1994, by SUE HABERSHAW

JOHNSON, who is personally known to me.

24 CHRISTINE WHEELER

Notary #AA711091