1 STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

3 SUGAR CANE GROWERS COOPERATIVE OF FLORIDA, )

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

4 -and- )

FLORIDA SUGAR CANE LEAGUE, INC., UNITED )

5 STATES SUGAR CORPORATION, and NEW HOPE )

SOUTH, INC., )

6 -and- )

FLORIDA FRUIT AND VEGETABLE ASSOCIATION, )

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

INC., and HUNDLEY FARMS, INC., )

8 )

Petitioners, )

9 )

vs. ) DOAH CASE NOS.

10 ) 92-3038

SOUTH FLORIDA WATER MANAGEMENT DISTRICT, ) 92-3039

11 ) 92-3040

Respondent, ) (Consolidated)

12 )

and )

13 )

MICCOSUKEE TRIBE OF INDIANS, THE UNITED )

14 STATES OF AMERICA, FLORIDA DEPARTMENT OF )

ENVIRONMENTAL REGULATION, and FLORIDA )

15 WILDLIFE ASSOCIATION, )

)

16 Intervenors. )

) _____________________________________________

18 HEARING BEFORE: HONORABLE J. STEPHEN MENTON

HEARING OFFICER

DATE: FRIDAY, JANUARY 21, 1994

20 (10:00 A.M. - 1:50 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 (via telephone)

GARY PERKO, ESQUIRE

5 CAROLYN RAEPPLE, ESQUIRE

Hopping, Boyd, Green & Sams

6 123 South Calhoun Street

P. O. Box 6526

7 Tallahassee, Florida 32314

(904-222-7500)

Representing Petitioners, Florida Sugar Cane

9 League, Inc., and United States Sugar

Corporation:

WILLIAM L. HYDE, ESQUIRE

11 Earl, Blank, Kavanaugh & Stotts

Suite 350

12 215 South Monroe Street

Tallahassee, Florida 32301

13 (904-681-1900)

14 -and-

15 WILLIAM L. EARL, ESQUIRE

MARK KOBELINSKI, ESQUIRE (via telephone)

16 Earl, Blank, Kavanaugh & Stotts

One Biscayne Tower, Suite 3636

17 Two South Biscayne Boulevard

Miami, Florida 33131

18 (305-358-3000)

19 Representing Petitioners, Florida Fruit and

Vegetable Association, Lewis Pope Farms,

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

Hundley Farms, Inc.:

KENNETH L. HOFFMAN, ESQUIRE

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

Suite C

23 2700 Blair Stone Road

Tallahassee, Florida 32301

24 (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 Northeast 4th Street

Miami, Florida 33138

7 (305-536-4425)

8 -and-

9 STEVE MC FARLAND, ESQUIRE (via telephone)

MIKE REED, ESQUIRE (via telephone)

10 United States Department of Justice

Environmental & Natural Resources Division

11 General Litigation Section

Room 879, 601 Pennsylvania Avenue (20004)

12 P. O. Box 663

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

Schnobrick & Kaufman, Ltd.

22 400 International Place

100 Southeast Second Street

23 Miami, Florida 33131

(305-539-7222)

-and-

1 APPEARANCES, CONTINUED:

2 JOAN LAWRENCE, ESQUIRE (via telephone)

VALERIE BOYD (via telephone)

3 Assistant General Counsel

South Florida Water Management District

4 P.O. Box 24680

3301 Gun Club Road

5 West Palm Beach, Florida 33416-4680

(407-686-8800)

Representing Intervenor, Florida Wildlife

7 Federation:

8 DAVID GUEST, ESQUIRE (via telephone)

LORI ERICKSON, ESQUIRE (via telephone)

9 111 South Martin Luther King, Jr., Blvd.

P.O. Box 1329

10 Tallahassee, Florida 32302

(904-681-0031)

* * * * *

ALSO PRESENT:

JEFFREY J. WARD (via telephone)

* * * * *

INDEX

ITEM PAGE

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

HEARING CONCLUDED . . . . . . . . . . . . . . . . . . 153

CERTIFICATE OF REPORTER . . . . . . . . . . . . . . .154

* * * * *

1 PROCEEDINGS

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

3 AT WHICH TIME MS. BOYD, MR. GREEN, AND MR. WARD WERE NOT

4 PRESENT.)

5 HEARING OFFICER: Hello?

6 TELEPHONE OPERATOR: Hello. This is the AT&T

7 conference, Mr. Menton.

8 HEARING OFFICER: Yes, ma'am.

9 TELEPHONE OPERATOR: Everyone is on the line except

10 Mr. Lehtinen. I reached no answer at that number.

11 HEARING OFFICER: Okay.

12 TELEPHONE OPERATOR: Would you like a roll call?

13 HEARING OFFICER: Yes.

14 TELEPHONE OPERATOR: One moment. Thank you for

15 holding, everyone. I'd like to take the roll call now.

16 Lori Erickson?

17 MS. ERICKSON: Here.

18 TELEPHONE OPERATOR: Joan Lawrence?

19 MS. LAWRENCE: Here.

20 TELEPHONE OPERATOR: Valerie Boyd? Mark Kobelinski?

21 MR. KOBELINSKI: Here.

22 TELEPHONE OPERATOR: Mr. Reed and Mr. McFarland?

23 MR. REED: Here.

24 MR. MC FARLAND: Here.

25 TELEPHONE OPERATOR: Jeff Ward?

1 MR. WARD: Here.

2 TELEPHONE OPERATOR: David Guest?

3 MR. GUEST: Here.

4 TELEPHONE OPERATOR: Ms. Valerie or someone

5 holding for her?

6 MS. LAWRENCE: Yes, Valerie is here.

7 TELEPHONE OPERATOR: If you need further assistance

8 call 800-232-1234.

9 HEARING OFFICER: Operator, could you try

10 Mr. Lehtinen back in a few minutes to see if you could

11 add him on?

12 TELEPHONE OPERATOR: Yes, I will.

13 HEARING OFFICER: Thank you.

14 (WHEREUPON, MS. BOYD LEFT THE HEARING.)

15 HEARING OFFICER: Ms. Valerie just dropped off.

16 I'll have to call her back.

17 MALE VOICE: What is the case number, Operator?

18 TELEPHONE OPERATOR: Number is 800-232-1234.

19 The conference number is WR27417. Thank you for using

20 AT&T.

21 HEARING OFFICER: Thank you. We'll start off by

22 identifying the parties who are present here in

23 Tallahassee, beginning with petitioners, the

24 Cooperative.

25 MS. RAEPPLE: Yes, Carolyn Raepple, on behalf of

1 Sugar Cane Growers Cooperative of Florida, Roth Farms,

2 Inc., and Wedgworth Farms, Inc., Carolyn Raepple and

3 Gary Perko, Hopping, Boyd, Green and Sams.

4 HEARING OFFICER: And for the League?

5 MR. EARL: Bill Earl, representing Florida

6 Sugar Cane League and United States Sugar Corporation.

7 HEARING OFFICER: I have received a notice of

8 withdrawal from New Hope South, Inc. They are no longer

9 a party to this proceeding.

10 MR. EARL: That's correct, and Mr. Hyde is also

11 here.

12 HEARING OFFICER: Fruit and Vegetable Growers?

13 MR. HOFFMAN: Ken Hoffman. Including the other

14 named parties of the fruit and vegetable, Ken Hoffman,

15 Oertel, Hoffman, Fernandez and Cole.

16 HEARING OFFICER: For the South Florida Water

17 Management District?

18 MR. NETTLETON: Paul Nettleton.

19 HEARING OFFICER: Okay. For the Untied States

20 Government?

21 MS. PONZOLI: Suzan Ponzoli, and with me is

22 Tom Watts Fitzgerald.

23 HEARING OFFICER: And for Department of Environmental

24 Protection?

25 MR. KILLINGER: Lee Killinger.

1 HEARING OFFICER: Okay. Those are all parties

2 that are here in Tallahassee. Anybody else who needs

3 to be identified on the phone?

4 All right, let's get started then. Mr. Lehtinen

5 is not on the phone, as I understand it. Has anybody

6 heard from him? Does he intend to be part of this

7 telephone conference call? Anybody know?

8 He was on the phone when we had scheduled this,

9 so I'm sure that he was aware of the hearing, and the

10 operator will try to add him on if we can reach him,

11 but we're going to go ahead with the hearing now.

12 The hearing was originally set up to discuss

13 issues that may have come up in terms of the exchange

14 of the witness list, the first 30, and any additional

15 lists.

16 There are a couple of other matters that are

17 pending that we need to take care of, at least that

18 they are still pending so far as I know.

19 The first has to do with the Cooperative's

20 request for access into the Refuge and into the Park.

21 That was filed back on January 7th.

22 At the last hearing we continued that over until

23 today. I did receive late yesterday afternoon a

24 response from the federal government which indicates

25 that that issue has not been resolved. I have been

1 through that response, and I think the first thing we

2 need to do this morning is see if we can resolve this

3 issue once and for all.

4 Before, no resolution since?

5 MS. RAEPPLE: No.

6 HEARING OFFICER: Okay. All right. Let me make a

7 couple of points, and I'd like to get responses from

8 both.

9 MR. NETTLETON: Mr. Hearing Officer, before we go

10 to that issue I think it might be appropriate to

11 address the witnesses issue first. I know that may be

12 a little more complex, but I think it permeates this

13 whole issue, because the whole entry issue deals with

14 something we plan to raise with regards to the

15 designation of new witnesses at this stage.

16 HEARING OFFICER: Okay. Well, I'm not sure what

17 you mean by the witnesses.

18 MR. NETTLETON: The issue of the disclosures

19 that you required on the 30 witnesses and what occurred

20 as a result of that.

21 HEARING OFFICER: Okay. All right. Anybody have

22 any objection?

23 All right. The other issues as I understood them

24 for today deal with the motion for prehearing conference

25 which was filed by the District, and that's a

1 different matter than the witness list.

2 MR. NETTLETON: It is different.

3 HEARING OFFICER: It kind of all comes together

4 at some point, I guess.

5 And I think those were the only other two I have.

6 I know Mr. Killinger has filed objections to subpoenas

7 regarding some witnesses, but I'm not sure that's ripe

8 for resolution today or even whether there was a...

9 MR. KILLINGER: It's not, Your Honor, and I

10 think, I have already talked to Gary Sams about it,

11 and I think we will probably be able to get all that

12 worked out without the necessity of a hearing.

13 HEARING OFFICER: Very good. Those are the only

14 issues that we really need to resolve today? Is that

15 correct? Is there any other that has come up?

16 Are there any remaining issues as a result of the

17 withdrawal of New Hope South?

18 At the time of our last hearing most of the

19 parties had not had an opportunity to review the

20 settlement agreement, and there was some indication

21 that there may be a need to review that and discuss

22 the implications for the purposes of this proceeding,

23 but nobody has filed anything other than the notice

24 of withdrawal.

25 I don't know that it impacts our preparation efforts

1 in any way.

2 No changes in that regard? Okay. All right.

3 Mr. Nettleton, do you want to go ahead?

4 MR. NETTLETON: Mr. Hearing Officer, I'd like to

5 address two of the three issues, and I'll leave the

6 entry issue for the United States to address directly,

7 since that does not directly involve us.

8 With regard to the two issues, there were two of the

9 four points we raised two weeks ago, and that was the

10 trial witness list we wanted to try to limit to 30,

11 which we thought...

12 TELEPHONE OPERATOR: Excuse the interruption.

13 Mr. Menton?

14 HEARING OFFICER: Yes.

15 TELEPHONE OPERATOR: Valerie Boyd is on the call,

16 but she can't talk. She can only listen. There's

17 something wrong with her speakerphone.

18 (WHEREUPON, MS. BOYD ENTERED THE HEARING.)

19 There's no microphone on the speaker.

20 HEARING OFFICER: Okay. Ms. Boyd, we'll assume

21 you will send messages by smoke signal if we need them.

22 MR. NETTLETON: The two points we thought had

23 actually been resolved to some extent two weeks ago

24 was the witness list being limited to 30, with the

25 understanding there was the ability to provide a second

1 list if you couldn't fit everybody within the 30, and

2 the submission of this pretrial conference order

3 issue, which you have set a hearing for February 11th

4 on.

5 As I think the parties on this side of the table,

6 as we represented to you two weeks ago, have sat down

7 and diligently attempted with great effort to eliminate

8 the witnesses from our list, we came down to a list of

9 30. It is a preliminary list. We wanted to see the

10 petitioners' list to see if that created problems for

11 us, whether we needed to move people around.

12 We did not provide any physical secondary list,

13 although we have advised the petitioners early in the

14 week at the same time we exchanged the 30 list that

15 we were working on that, and we gave them the names of

16 the people we were considering on that, which were

17 less than 10. There were no new people added from our

18 side on either list.

19 And we were still trying to eliminate additional

20 witnesses from the first list, so we could move people

21 from the second list to the first and hopefully

22 eliminate the second list ultimately.

23 We have completed, we have not completed that at

24 this point.

25 At the same time we received a letter from the

1 petitioners giving us their two lists, and I don't know

2 if that was filed with Your Honor or not.

3 HEARING OFFICER: Let me, so everyone knows what

4 I have, at this point I have received a respondents'

5 list that has the 30 names on it. But I don't think I

6 have received, I'm trying to recall, I don't think I

7 have received anything further from any other parties

8 regarding the witness lists.

9 Some of the staff may be in the Clerk's Office

10 if it's been filed. I think there was...

11 MR. EARL: We have it for you today. We have...

12 HEARING OFFICER: Has it been filed yet? Do you

13 know?

14 MR. EARL: No, we haven't filed. We wanted to

15 discuss with counsel, we have had serious discussions

16 as late as yesterday afternoon, and we filled out

17 both lists and have some further deletions to talk to

18 you about, if I may.

19 HEARING OFFICER: Okay. Let me just see if I

20 understand how this procedure has come down.

21 On behalf of the District, the witness list that

22 you submitted was on behalf of the District and the

23 federal government?

24 MR. NETTLETON: And the state.

25 HEARING OFFICER: And the state.

1 MR. NETTLETON: And the environmentalists.

2 HEARING OFFICER: And the environmentalists as

3 well. Okay. So that includes all proponents of the

4 plan?

5 MR. NETTLETON: That was the intent. That's how

6 we understand we were required to do it.

7 HEARING OFFICER: Okay. Mr. Guest, that's your

8 entire witness list, too, right?

9 MR. GUEST: That's right.

10 HEARING OFFICER: Okay. Now, Mr. Earl, the list

11 you just gave me, this is for both the League and the

12 Coop and the Fruit and Vegetable Growers? Is that

13 correct?

14 MR. EARL: The League, The Coop, U. S. Sugar and

15 I believe the Fruit and Vegetables. No?

16 MR. HOFFMAN: We didn't have a problem with their

17 experts, but I didn't, I don't feel it's correct that

18 we should lose my party witnesses.

19 I have three farmers in the Fruit and Vegetable

20 Association. I had asked, because most of the meetings

21 have dealt with the scheduling and that kind of thing, and

22 I didn't see the necessity to attend for all that time.

23 I talked to the people on the petitioners' side,

24 and they understood that people like Mr. Schlechter,

25 I did not think I should lose them as witnesses, because

1 they are not actually witnesses.

2 HEARING OFFICER: Well, nobody is losing anything

3 at this point. I think the important thing though is

4 for everybody to get the witnesses out on the table,

5 so that we know who they are, and that they can be fit

6 into the discovery schedule as appropriate.

7 So I'm not saying you're going to lose anybody.

8 I just want to make sure you disclose who they are and

9 that everybody knows who they are, so that they can be

10 deposed, and if necessary, and just make sure that

11 everybody has an opportunity to understand what's going

12 to happen at the final hearing.

13 MR. HOFFMAN: Well, with respect to the Fruit and

14 Vegetable Growers, there's Mr. Botts for the Fruit and

15 Vegetable Association and Mr. Polk, Schlechter, and

16 Hundley. All have been deposed except Mr. Hundley.

17 Mr. Hundley is a member of the Coop also, for

18 various reasons, and the Coop listed him in a memo I

19 just saw that says supplemental witness list.

20 I don't know how that ties to the letter you

21 received, either, so I can't speak for them, but I

22 just want to be sure this list does not preclude me

23 from those four, three of whom have already been

24 deposed.

25 HEARING OFFICER: Okay. Well, I'm not going to

1 preclude you at this point, but what I'm going to ask

2 you to do is to make sure an amendment is filed to include

3 those two, so that everybody...

4 TELEPHONE OPERATOR: Excuse the interruption.

5 Mr. Green is now on conference.

6 (WHEREUPON, MR. GREEN ENTERED THE HEARING.)

7 HEARING OFFICER: Welcome, Mr. Green.

8 MR. GREEN: Thank you, Mr. Hearing Officer. I'm

9 sorry to interrupt.

10 HEARING OFFICER: What I want to make sure is that

11 this list is amended to reflect those people, so that

12 everybody is dealing with the full deck here. That's

13 a dangerous statement. I'm not sure that's accurate.

14 MR. FITZGERALD: Have you voluntarily recognized

15 that?

16 HEARING OFFICER: But, Mr. Hoffman, you understand

17 my point that if there are witnesses that are not on

18 here, get them on here, so that there are no surprises

19 as we move further on down the line.

20 Okay, so I will expect that will be done first

21 thing next week, so that we know exactly what we're

22 dealing with. Mr. Nettleton, go ahead.

23 MR. NETTLETON: Mr. Hearing Officer, again this

24 adding witnesses to the list, of course, is something

25 we hate to see, because we thought the whole exercise was

1 to start limiting the witnesses.

2 HEARING OFFICER: Well, I agree that that's what

3 we're trying to do, but I think we start first with

4 full disclosure of who everybody wants, and then we'll

5 go through it and try to narrow it down from there,

6 one step at a time.

7 MR. NETTLETON: Again my understanding was that

8 essentially all experts have been disclosed previously,

9 and we were in an attempt to try to narrow that, but

10 aside from that what we have, what petitioners have

11 filed here, as you have seen now, is a list of, first

12 list of 32 experts, which we now understand from our

13 meetings does not include rebuttal and possibly fact

14 witnesses.

15 I know they said it did not include their rebuttal

16 witnesses, which we believed that you had indicated

17 should be included, and we tried to include in our list

18 of 30.

19 There's a second list of 43 additional names

20 which did not include Mr. Hoffman's witnesses.

21 Since that time we have also received a letter

22 from the League's counsel with a lst of 23 additional

23 names who they wish to depose, some of whom are on this

24 list, and some of whom are not. A great deal of them

25 not, I believe.

1 HEARING OFFICER: On the list that was filed by

2 Mr. Earl this morning?

3 MR. NETTLETON: Right. Correct. There's a separate

4 letter that's been sent out on...

5 HEARING OFFICER: Again I didn't know if you were

6 talking about this list or your list.

7 MR. NETTLETON: I meant his list. I'm sorry.

8 MR. EARL: If I may, Mr. Hearing Officer, this is

9 the letter counsel is referring to. It is to try and

10 specify in addition to witnesses we would anticipate

11 calling the other depositions that we would, if I

12 may...

13 HEARING OFFICER: Okay.

14 MR. NETTLETON: In addition to that, Mr. Hearing

15 Officer, we were advised yesterday of I think five or

16 six additional names who don't appear on here that they

17 are asking us to obtain availability on now, and

18 apparently the list is even expanding, which is of

19 course what we were hoping to try to avoid.

20 As I said, we believe that this whole exercise

21 was intended to limit, focus, and streamline discovery,

22 and we feel what's occurred here by petitioners is

23 having the opposite effect.

24 What we see on the list now is I have counted up

25 I believe nine new named experts who have not previously

1 been disclosed on previous lists. We've gotten

2 six slots of unnamed people, two or three

3 descriptions of people they intend to retain sometime

4 in the future.

5 We have been trying by the way to get the names

6 of these people over the last week. Mr. Green yesterday

7 Faxed over disclosures on some of these people, I

8 don't think all of them. I think there are still some

9 unnamed people that they just have generic descriptions

10 on this list.

11 I can understand the length this case has been

12 pending and the stay that occurred that some experts

13 may disappear and so forth, and there may be a need to

14 substitute witnesses or something of that nature, and

15 I believe with regard to at least on of their witnesses,

16 Mr. Lee, they have indicated he's coming in to replace

17 Dr. Meyer, who is no longer with the firm. I don't

18 have a problem with that.

19 What we have a problem with is adding all these new

20 experts which are not as I see it added to new issues.

21 these are issues such as vegetative community changes

22 and so forth that have been in this case from day one.

23 They are adding new witnesses. They are doing

24 new discovery in the entry issues you will hear later

25 that relate to some of these new witnesses, and we think

1 that it's too late at this stage to be adding new

2 witnesses into this proceeding.

3 Back when we started this case there was an

4 agreed discovery and scheduling order that was entered.

5 At that time we had a date se for a final witness list

6 which was five months prior to the final hearing.

7 Now we're looking at a hearing that's three

8 months away, and what we're hearing here as well as in

9 response to our motion to set a prehearing conference

10 and set the issues and witnesses is that they don't want

11 to identify issues or witnesses until just before

12 trial, which to me is a step backwards from where we

13 were two years ago.

14 We are three months before trial, and under an

15 agreed scheduling order back in August of '92 they have

16 agreed to issue a final witness list five months before

17 trial. We would request at this time that in order to

18 avoid prejudicing this proceeding that ll of the new

19 witnesses they have added in the last period that have

20 not been disclosed be stricken from the list, absent

21 showing of good cause as to why they need to be

22 coming in at this late stage.

23 That would be our position on the witness list,

24 Your Honor.

25 HEARING OFFICER: Okay. I need to go back and

1 review some of the prior proceedings that we had on

2 the preparation of the preliminary witness lists that

3 were exchanged well over a year ago, but my recollection

4 talking off the top of my head was that we tried to

5 have full disclosure at that time of all possible

6 witnesses, and I think I tried to make it clear that

7 I didn't want to deal with additions to those witness

8 lists, and that if you were going to make some

9 additions you would have to come in and demonstrate

10 pretty clearly why they weren't disclosed originally.

11 I need to probably go back and refresh myself as

12 to exactly what transpired in the hearings, but that's

13 the way that I recall, or at lest that's what I was

14 trying to do.

15 I understand there has been some extended periods

16 during which the mediation has taken lace, and that

17 there may be some changes there, but I don't think that

18 that delay for mediation opens the door up to adding

19 new witnesses and new issues that weren't previously

20 offered in this case, so I'm going to be reluctant to

21 do that, absent some demonstration of the need to do it.

22 So having said that as a preliminary matter I

23 welcome a response from petitioners.

24 MR. GREEN: Mr. Menton, this is Bill Green. Can

25 you hear me?

1 HEARING OFFICER: Yes, sir.

2 MR. GREEN: Thank you. Ms. Raepple and Mr. Perko

3 will primarily be involved, and I'm not trying to double

4 up on this, but I would like to respond if I could

5 briefly to the concern you just raised.

6 I think if anything we have erred on the side of

7 full disclosure. That has been our intention. I

8 think we have done that.

9 The areas that we're discussing now are areas that

10 have arisen during the course of discovery, as one

11 might anticipate.

12 You will recall that all along during mediation

13 we have urged that our right to discovery not be

14 prejudiced nor development of the case.

15 What we're faced with now is a hearing that is

16 probably a month or two sooner than we thought we

17 would have before, and that's part of the problem.

18 But in terms of the new witnesses that we have

19 listed, some of those are replacement witnesses, and

20 Ms. Raepple can get into that later, if you'd like,

21 in areas that were in issue where the logical

22 development of the case indicated the need for further

23 attention on our part.

24 The second area was the ENR mercury sampling

25 issue, and as you know that came in very late, and we're

1 still in the process of dealing with that in an entry

2 concept.

3 Due to the fault of no one that issue came

4 into this case late.

5 The third area we're really talking about are very

6 brief witnesses who are more like standing witnesses,

7 farmers who will come in and discuss BMP practices, and

8 I never anticipated that, I would not call them

9 experts. They are very, they are important to us, but

10 they are not the type of witnesses that I believe your

11 earlier concerns were more focused at.

12 So largely I believe that these are absolutely

13 justifiable. We need to be able to bring these people on

14 to fairly address issue in this case.

15 We do not think that their testimony is

16 immaterial, irrelevant, or will be duplicative, and

17 in order for us to adequately prepare this case we

18 believe they are necessary. Thank you.

19 MR. KOBELINSKI: Mr. Hearing Officer, this is

20 Mark Kobelinski. I know that Mr. Earl will be discussing

21 this issue, but I would just remind the Court and

22 Mr. Menton that immediately before the stay the

23 parties were in the process of filing final witness

24 lists, and some of the parties filed witness lists just

25 a day or two prior to the stay, and other parties had not

1 as yet done so.

2 So we were in the process of doing just that,

3 identifying these additional witnesses, without any

4 objection at that time.

5 HEARING OFFICER: Mr. Earl?

6 MR. EARL: If I may, I too am going to go back and

7 look at the record. My recollection coincides with

8 what Mr. Kobelinski said, and we are trying to avoid

9 surprises here.

10 They have not even, if you're going to entertain a

11 motion to strike, I would move then to strike anyone

12 else other than the list they have given you.

13 We have given you a second list which we hope

14 to winnow down. They haven't given you one. So now

15 we're going to entertain motions to exclude anyone else

16 who's not on their list.

17 They haven't even given us a second list that

18 you instructed them to do.

19 MR. NETTLETON: We gave it to them orally at our

20 first meeting. I listed every single name on our

21 second list, which was a total of nine people.

22 MR. FITZGERALD: Mr. Earl was not present during

23 those discussions, but Mr. Burgess and Mr. Kobelinski

24 were. Mr. Kobelinski is on the phone, and he can

25 verify that.

1 MR. KOBELINSKI: Could counsel speak up? We

2 can't hear him.

3 MR. FITZGERALD: Mark, this is Tom Fitzgerald.

4 I just indicated you'd be happy to verify that during

5 the discussion of scheduling Mr. Nettleton did give you

6 the list of approximately 10 witnesses that would be

7 on respondent/intervenors' second list, should one of

8 those be formally committed to writing, and pointed

9 out that Mr. Earl might not have been aware of that,

10 since he was not at the meeting.

11 MR. KOBELINSKI: I think Bill Green can confirm

12 that we were told several names, and we were also told

13 that that list was not complete, so you are partially

14 correct, but Mr. Earl is also correct that we have

15 not received your full list, at least to our knowledge

16 and at least from what you have told us.

17 MR. GREEN: That would be my understanding.

18 MR. EARL: More importantly, Mr. Hearing Officer,

19 again we hope and are working and will continue to work

20 to eliminate names on this list, but we wanted to get

21 out anybody we might use.

22 Let me give you a couple of examples from our

23 first list, if I may, of people we have added.

24 Mr. Frank Coale, C-o-a-l-e. We have been looking

25 for an expert on BMPs. We have been unable to use the

1 University of Florida Agricultural Extension Service

2 and IFAAS, because, who are the experts who have

3 worked on this, because the District has retained them,

4 and they told us that unless they're subpoenaed they

5 will not provide any consulting or expert testimony

6 for the EAA.

7 Mr. Coale used to be with IFAAS, used to be in the

8 Belle Glade research center, and is now at the University

9 of Maryland. We have tracked him down, and he is now

10 available.

11 Let me give you another example. We have a

12 chemical treatment expert on that. We have a generic

13 title that has now been, the firm is Metcalf and

14 Eddie, that we have been working with, but that's an

15 engineering firm. If we're not going to get into

16 remedy stage, as you have suggested, we won't need them,

17 but again we wanted to disclose fully who we might be

18 using.

19 Another example we have listed is a water

20 quality peer review. In looking over the respondents'

21 case, our consultants went over there and told us we

22 have a need for a limnologist or water chemistry expert

23 to counter some of the witnesses they have listed, so

24 we put that down generically. That's the only one we

25 put down generically.

1 Mr. Green has one or two generically. We are

2 actively searching as we speak to find that individual

3 and retain somebody. We are discussing with people.

4 Again we have three months, and we want to disclose

5 that, and as soon as we have them aboard and they have

6 an opinion we will make them available.

7 but this, our purpose here is to fully disclose

8 anybody we might need.

9 If I can address the second list, our second list,

10 Mr. Menton, which is as counsel points out has 43 names

11 on it, again that's an effort to fully disclose, and

12 let me give you some examples.

13 We will, we can eliminate at least five of those

14 people, Mr. Menton, witnesses on their list. If they

15 will stipulate we can examine them on cross examination

16 beyond the scope of direct examination we wouldn't need

17 to have them on our witness list. But we don't have

18 such a stipulation.

19 So they are their witnesses, but we need them for

20 testimony they might not bring out on direct and we

21 probably know they won't bring out on direct.

22 That's one category. Another category, we have five

23 or six people, Mr. Menton, if I can give you an example,

24 Jack Jones on our second list. Dr. Jones is an

25 expert at identifying periphyton species. They have to

1 do it under a microscope. It's a very exacting science.

2 We have other experts to testify about periphyton

3 communities, but he has done the identification.

4 We put him on the second list. If we can get a

5 stipulation that the other experts can use the

6 identifications, we can eliminate him. We have five or

7 six like that.

8 But again, Mr. Menton, if we can get a stipulation

9 we can eliminate them, but we wanted to put them down

10 in the interest of full disclosure.

11 HEARING OFFICER: Well, and that's exactly what

12 this whole process is supposed to accomplish, is that

13 if everybody fully discloses the witnesses that they

14 believe they need to prove their case, then the

15 discussion as to setting up discovery for the witnesses,

16 etcetera, will hopefully lead to the elimination of

17 some of those witnesses if we can reach stipulations

18 that will cover their testimony.

19 If they are simply for some authentication of

20 testing results or something to that effect, there may be

21 a stipulation as to the tests can come in without having

22 to call them. That's exactly what I'm hoping that this

23 whole process can accomplish.

24 So I agree with you in the sense that, to list

25 those witnesses is necessary at this point, but I would

1 hope that through discussions with counsel you can

2 reach some agreement that it's not necessary to call

3 them, and that's what I'm looking to accomplish out of

4 this.

5 MR. NETTLETON: Mr. Hearing Officer, if I could

6 respond. One of the problems we have is we have

7 continually had a problem getting information about

8 what these witnesses are actually going to testify

9 about.

10 Now we have just learned today what Jack Jones is

11 going to testify about.

12 The disclosures we have on them are not that

13 specific to tell us he's only going to be doing

14 foundational evidence and so on and so on.

15 When we've been trying to get information for some

16 of these new people, which is what I'm really concerned

17 about, that we have never seen before, it was like

18 pulling teeth to try and get what they're going to

19 testify about and, or what their areas are and so

20 forth or where they worked.

21 If fact, at this point we still don't have names,

22 and they don't even know who some of the people are

23 yet.

24 This is the thing that I raised early on, is

25 raising of new people I this case at this stage,

1 three months before trial, which we think is prejudicial

2 to us. It's an increasing burden of discovery and

3 something they should have done. These are not new

4 issues here. They are issues that have been in the

5 case from day one.

6 HEARING OFFICER: Well...

7 MS. PONZOLI: Mr. Hearing Officer, if I may, I

8 think one of the more flagrant examples of expanding

9 is the Everglades historian, who remains as we sit here

10 unnamed. That work has to be completed, so where's the

11 name? We don't know. That's on the 32 designated list.

12 MS. RAEPPLE: Mr. Hearing Officer, if I may, the

13 categorical witnesses were put on the list in an

14 effort in good faith to fully disclose our intentions.

15 We are working as expeditiously as possible to

16 identify someone to fill that slot.

17 It's important to the issues of this case to have

18 a clear understanding of the history of the development

19 of the Everglades, and we are trying to find a witness

20 who can do more than simply give us documents.

21 Certainly the history is evident in some of the

22 documents, but we want someone to show you clearly the

23 history of the development and how that proceeded.

24 That's important. We are trying to identify a person as

25 soon as we can.

1 As Mr. Green pointed out, some of the witnesses, the

2 newly added witnesses, are replacement witnesses.

3 An example of that are the experts from Law

4 Engineering, Ed Downing and Tom Lodge. Those witnesses

5 are replacements for Mr. Herbert and Mr. Coale, who now

6 appear on our second list, but we have taken them off

7 our primary list, and the reason we have replaced them

8 is because during the course of this proceeding we

9 have determined we will be better able to demonstrate

10 the vegetative communities in the Everglades using

11 remote sensing.

12 Part of the reason for that is that the respondents

13 have put a remote sensing expert on their list. We

14 have not had an opportunity to depose him, but we are

15 trying to ensure we have comparable witnesses for

16 you to consider.

17 HEARING OFFICER: Well, the idea of replacement

18 witnesses doesn't cause me a whole lot of trouble, so

19 long as it's fully disclosed who they are replacing

20 and it's not somebody who has already been deposed and

21 you decided their deposition didn't go well and you

22 wanted to substitute somebody else. That's not

23 my idea of a replacement witness.

24 But if somebody is unavailable for if somebody has

25 not worked on the project to the extent it was

1 anticipated, I don't have a problem with replacing

2 them.

3 And, you know, I would assume there would not be

4 any problems on the other side, and if there is I'm

5 going to put the burden on your to show me why there

6 is difficulty with this.

7 But I do have difficulty with undisclosed generic

8 experts at this point. I think we've got to get, I

9 mean, we're not in a position where we can continue to

10 have witnesses to be identified in the future.

11 The witnesses have to be identified now. Discovery

12 has to be scheduled. We have to get going forward with

13 it.

14 MS. RAEPPLE: Mr. Hearing Officer, we have no

15 problem with establishment of appropriate cutoff dates

16 for identifying names, and I realize that's like to

17 be in the very near future, but we are working as

18 diligently as we can to identify the names.

19 We are at the same stage as when the stay was

20 imposed, which is identification of the final witness

21 list. We are prepared to do that.

22 We are working as diligently as we can to put a

23 name, and in the interest of full disclosure we put that

24 category on the list.

25 HEARING OFFICER: And certainly full disclosure is

1 essential, and I know that as the first step in this

2 process that there may be some other uncertainties,

3 but I was hoping we would be a little bit further along

4 in trying to get everybody to work things out.

5 (WHEREUPON, MR. WARD ENTERED THE HEARING.)

6 TELEPHONE OPERATOR: Mr. Hearing Officer, Jeff

7 Ward is on the line.

8 MR. FITZGERALD: Mr. Hearing Officer, we are engaged

9 in a rather bizarre showing. We have just heard

10 Coale and Herbert are no longer witnesses, and they

11 have only been dropped to the second list, but if you

12 read what they say about the second list and what they

13 have told the respondent parties is they plan to

14 call many of the people on the second list, and they

15 plan to argue to you they are necessary.

16 I deposed Coale and Herbert in December of 1992.

17 They are photo remote sensing specialists, if you

18 will, and they were developing the work on the vegetative

19 communities, and per their testimony at that time, and

20 I can file it if you'd like to, they identified the

21 person that would take their work, utilize it, and

22 discuss vegetative community changes.

23 Now you are hearing that these new people are

24 substitute witnesses.

25 The issues, as Mr. Earl has pointed out two hearings

1 ago, have been framed by the petitioners. They raised

2 the material fact challenge of whether there are or not

3 vegetative impacts in various pieces of property out

4 in the Everglades administered by the federal

5 government in reference to the SWIM plan. That was an

6 issue they framed two years ago.

7 Now they are telling you they are substituting

8 witnesses at this juncture, yet they are not dropping

9 witnesses that they tell you the new ones are

10 substitutes for, who we have deposed.

11 HEARING OFFICER: Well, that's one issue where I

12 said I do have a problem in substituting witnesses in

13 that kind of a situation.

14 If it's just because somebody's unavailable or

15 died or whatever, then certainly substitute witnesses

16 are appropriate, but if you are substituting somebody

17 who's previously, for somebody who's previously

18 been deposed and who was addressing the exact same

19 issues, I've got a little bit more problem with that.

20 MR. FITZGERALD: If I may add a few more facts to

21 that, Mr. Hearing Officer.

22 Within the last two or three days as we have been

23 working on the deposition schedule the United States

24 asked for Coale and Herbert to get their final work.

25 No where was it said to us, "Well, the other remote

1 sensing specialist, the satellite type, is going to

2 supplement them, and we'll drop them from the list."

3 Additionally, we are dealing with a situation

4 where you have been told, "Well, the other side has

5 satellite remote sensing." That's true. The District

6 identified in their very first list satellite remote

7 sensing. They have not been deposed yet, but some of

8 his work was deposed.

9 Another District employee who works in that area is

10 well known to the petitioners. His work has been

11 received through the documents request or totally

12 available.

13 The fact of the matter is they simply have changed

14 the type of expert they want to use, and I don't know

15 if it's because the photos didn't pan out to what they

16 wanted to address with the District's satellite

17 interpretive specialists, but that issue has been on

18 the table since the very first exchange of witness

19 lists.

20 That's where the shell game is coming in.

21 I might point out that the petitioners as a group

22 do have a remote sensing specialist, a satellite

23 specialist, in the League's list of witnesses. Some

24 pooling has to occur if we want to get this down to a

25 manageable size.

1 We understood that to be the spirit and the intent

2 of the rulings, and that's what we have diligently tried

3 to do.

4 But this constant adding of, well, they didn't

5 get to 30 on the first, and now they've got 43 on the

6 second list. There's 23 on the third list, and maybe

7 some more, and...

8 HEARING OFFICER: Twenty-three on the third list?

9 What third list?

10 MR. FITZGERALD: The letter of additional

11 depositions.

12 MR. EARL: Mr. Hearing Officer, if I may...

13 MR. FITZGERALD: We understand others may need to be

14 deposed, and we're not objecting to that per se, but

15 we certainly are not headed in the right direction in

16 the spirit of frank cooperation.

17 The discussions now about stipulations, that

18 particular area is potentially the subject of

19 stipulations and was not raised until this morning.

20 They want to justify failure to do what you have

21 asked the parties to do.

22 MR. NETTLETON: If I might add, Mr. Hearing

23 Officer, with regard to this replacement of the

24 witnesses, this is the first time we have heard that,

25 this morning, and in fact, as I said, so far as pulling

1 teeth, I had to cross examine Mr. Green to find out

2 these people were remote sensing. He did not want to

3 reveal that to me.

4 I had to ask about 10 questions to get him to

5 finally tell me that's what they would be here for,

6 and that's what we've been going through.

7 MR. GREEN: Mr. Hearing Officer, would you ask

8 Mr. Nettleton to speak up? I can't hear him, or

9 Mr. Fitzgerald.

10 MR. NETTLETON: Okay. I indicated, Bill, that

11 you were very reluctant during our discussions even to

12 tell me that your new people, the Downing, Lodge, and

13 so forth, were involved in remote sensing, and I had

14 to essentially drag that out of you, and you never...

15 MR. GREEN: I object to that characterization.

16 It's sort of irrelevant.

17 The point is you asked for the information, and

18 we gave it to you. We have fully disclosed, and I think

19 that there's a lot of heifer dust being spread around

20 the hearing room right now, and I think it's a waste of

21 time.

22 I agree with Ms. Raepple. We have honestly

23 represented to you that Coale and Herbert were using

24 techniques that apparently were not productive. We

25 have offered, and we will say now they have done no

1 further work since their depositions. They were

2 about to embark on a program that appears to be

3 ineffective in light of the satellite work, so we

4 shifted gears in order to bring to your attention in

5 this hearing the facts that we think you are going to

6 need to resolve these issues, and we have done it in

7 good faith.

8 HEARING OFFICER: All right. Well, let me say,

9 you know, I'm not involved in the day-to-day discussions

10 that are going on, so it's hard for me to get a feel

11 for exactly what's transpired, and to a certain extent

12 I'm reluctant to do so, but I think I have to.

13 At this point in the game full disclosure goes

14 beyond identifying witnesses, but there has to be a

15 clear communication as to what the witnesses are

16 intended to address and the subject areas that they're

17 expected to testify on.

18 We just can't be playing games with that. I

19 don't want that to be occurring.

20 We've got a lot of names on here on everybody's

21 list. I would assume that a lot of them are familiar to

22 people already, not necessarily familiar to me, but

23 I would assume those of you who have been working on

24 the case on a daily basis recognize a lot of them, and

25 if they're not familiar then the side who listed them

1 ought to be forthcoming in disclosing who the people

2 are, where they work, why they are listed on the witness

3 list, and the issues that they intend to address.

4 We're going to be more specific about that when

5 we get to the prehearing conference, and we can talk

6 about that in a minute, but I expect at that point to

7 have witnesses specifically tied to the various issues

8 in this case.

9 But even at this point in the proceeding I want

10 there to be a full disclosure as to who these witnesses

11 are and the areas in which they are expected to

12 testify, what kind of work they've been doing, and

13 I think that's essential to establishing priorities in

14 the discovery process.

15 So if that hasn't occurred in the past I expect

16 it to occur in the future, beginning immediately.

17 I don't know exactly how we can proceed with this

18 list, but I think maybe what we need to do is take a

19 recess and sit down and go through these lists,

20 determine who is new and who isn't new.

21 The people that ar new, I'd like to get an

22 understanding as to why they are now listed when they

23 weren't listed before.

24 It may be that there's a good explanation for it,

25 and it's appropriate to add them, but if there isn't a

1 stipulation between the parties that it's appropriate

2 to add them, then I'll sit here and listen to it, and

3 we'll figure out whether or not I'm going to let them

4 testify.

5 In terms of the second list, I think some of

6 those names as I understand it are people who work for

7 the District. I would assume there's no real

8 difficulty in understanding the areas that those

9 people are familiar with and what they're going to be

10 testifying to, but those that don't fit into that

11 category, if they haven't previously been deposed, I

12 think there needs to be a disclosure as to what they

13 intend to testify to and whether there's duplication or

14 whether it's new issues that we need to argue about.

15 And we'll argue about it.

16 But I'm a little bit disappointed we haven't made

17 a little more progress than we have.

18 And I think the appropriate way to address this

19 is to, I mean, we'll do it right now, today. I'll

20 give you an hour to sit down and try to figure out

21 which of these people on here there can be some

22 consensus reached on, and if there's no a consensus

23 then I'll listen to both sides, and we'll just take it

24 from there. I guess it's unavoidable. Mr. Hoffman?

25 MR. HOFFMAN: Your Honor, it's a little bit

1 different from what you are looking at, but I don't

2 think anybody misunderstood we wanted these four

3 witnesses. The League's attorneys I'm sure passed them

4 on to the other counsel, and my witnesses have never

5 changed, and they have been deposed, except for Mr.

6 Hundley, he took some depositions twice, and because

7 of the change or the stay he was not deposed, but

8 he was available.

9 But we have, I think those due process questions

10 we have been told to come down to 30 questions. Nobody

11 has told me they would entertain stipulating to

12 standing.

13 As I understand standing, it's a subject matter of

14 jurisdiction which can be raised at any time. So if

15 I'm not allowed to put on my witnesses because of the

16 30 cutoff...

17 HEARING OFFICER: Mr. Hoffman, as I said earlier,

18 I'm not cutting anybody off at 30. What I asked the

19 parties to do is to list 30 critical witnesses that

20 they knew they were going to have to call in their

21 case in chief, and then do a list of people that

22 they also feel are essential, and if you can show me

23 that they're essential, then I'm not sure as I said

24 before, I'm not going to cast the 30 number in stone

25 at least at this point until I give everybody an

1 opportunity to see who they feel they need and see what

2 duplication we can eliminate and what stipulations we

3 can reach.

4 If we have to go beyond 30, I don't have any

5 problem doing that, but I think as a preliminary step

6 and the first approach we have to take it's to figure

7 out who the 30 most essential are.

8 If it's clear that there are 45 essential, fine.

9 I'll sit there, and I'll listen to 45 witnesses.

10 But let's get started on this process. Let's go

11 through the 30 most essential and see if we can reach

12 some agreement, get the discovery going, and if

13 more than 30, then let's get them lined up for

14 discovery and proceed.

15 MR. EARL: Mr. Hearing Officer, Mr. Kobelinski

16 has been handling this, but I understand that there is

17 pretty close agreement or they made a lot of progress

18 on the discovery schedule. That's not a problem as I

19 understand it. Mr. Kobelinski, this is what he's

20 related to me.

21 We are ready to go through right now, we have

22 given you two separate lists. We are ready to go

23 through right now why we need those people.

24 I think most of these people, again correct me,

25 Mark, if I'm wrong, have been fit into a discovery

1 schedule.

2 MR. KOBELINSKI: Yeah, I think that all sides

3 will report to the Hearing Officer that the actual

4 discovery schedule itself is coming along in fine

5 shape, taking into consideration all this.

6 HEARING OFFICER: The discovery schedule is

7 addressed at just the first 30 or includes all these

8 other witnesses as well?

9 MR. NETTLETON: Mr. Hearing Officer, I think

10 that's a fairly accurate statement. We have

11 attempted, subject to our objections raised today about

12 adding of new people and the 43 additional witnesses and

13 so forth, we have attempted to schedule based on the

14 witness availability and so froth a schedule which

15 includes everybody on here.

16 There's still slots that need to be filled.

17 We started with five to seven people we named, mostly

18 new people they named that do not fit in on the

19 schedule, but we have been working on the schedule,

20 and that's pretty much in agreement where we're at

21 right now.

22 MR. KOBELINSKI: Mr. Hearing Officer, I think

23 you should understand that a number of these witnesses

24 both on the respondents' list and our list have been

25 deposed, so we're really not dealing with so far as

1 depositions all these people.

2 HEARING OFFICER: That was Mr. Kobelinski?

3 MR. KOBELINSKI: Yes.

4 MR. NETTLETON: Well, I would also state, I

5 glanced at our calendar coming up here, and I counted

6 one day or a couple of days where we've got seven

7 depos going simultaneously in order to accomplish this,

8 which is certainly not the best of all worlds from

9 our standpoint.

10 We have gone ahead and plugged those in, based upon

11 witness availability.

12 I have not gone back yet to try to figure out

13 resources so far as attorneys to cover the depositions.

14 If that becomes a problem in the future we may have

15 to come back to you with regards to that.

16 We're going to try to accomplish that. We have

17 slotted people in with the understanding we've got

18 more because of this list, and we were hoping that this

19 whole process that you had started two weeks ago was

20 going to cut down on discovery, and it doesn't appear

21 it has had that effect, which is what we're upset about.

22 MR. KOBELINSKI: Mr. Hearing Officer, just a moment,

23 to be fair...

24 HEARING OFFICER: Mr. Kobelinski again?

25 MR. KOBELINSKI: Yes. Mr. Nettleton will also

1 agree that there are several days where there are

2 only two witnesses being deposed, and some with only

3 one witness. A lot of that is driven by witness

4 availability, more so than the number of witnesses.

5 MR. NETTLETON: I don't necessarily dispute that

6 in the case.

7 MR. HYDE: I think there are a couple of interesting

8 points to be raised now. I think that admission by

9 Mr. Nettleton really sheds a lot of light on their

10 implicit if not explicit claim of some prejudice in this,

11 and certainly if they have the opportunity to depose

12 them then I don't think they will be prejudiced.

13 And secondly if there is any complaint about the

14 number of depositions, the number of depositions being

15 taken and the amount that are taken at a given time

16 are driven in large part by the early hearing date

17 that the respondents insisted upon.

18 (WHEREUPON, MR. HOFFMAN LEFT THE HEARING ROOM.)

19 So they can't really claim on the one hand

20 it's a problem and on the other hand insist on the

21 hearing date as early as it is.

22 MS. PONZOLI: Mr. Hearing Officer, one problem

23 that we have resolved momentarily that you need to be

24 aware of, we have a whole slough of depositions that

25 may emerge as a result of this task force.

1 Our present resolution is I'm going to produce

2 certain key people who are central in the writing of

3 that report and let those depositions be taken.

4 I'm objecting to generally the whole task force

5 relevance, but I will allow the first depositions, and

6 we will join the issue if they take 13 to 18 more

7 depositions really necessary.

8 But there's potential for an enormous amount of

9 more depositions than are presently on the schedule.

10 HEARING OFFICER: Okay.

11 MR. EARL: One thing Ms. Ponzoli said is

12 accurate, but part of our burden, as the Hearing Officer

13 knows, is we are dealing with a four-volume SWIM plan.

14 We're dealing with an agency that has literally I

15 suppose agencies, hundreds of staff scientists.

16 I can show you on our second list there's three

17 names, for example, and I anticipated other names may

18 have to be added to our list, because they are not

19 producing these people.

20 There is a Sue Newman, Galen Miller, and Garth

21 Redfield. One is an outside consultant. The other

22 two are key people relating to work on the ENR and the

23 STAs the District is doing, and they are the most

24 knowledgeable people. They are not even, haven't even

25 listed them.

1 I think we're going to uncover other people, this

2 task force report, which is the federal objective

3 study which concludes the hydroperiod is more

4 important than nutrients, we're going to discover

5 other people that we're going to have to list.

6 We have a burden of delving into that SWIM plan

7 and all of those staff people, and we're going to find

8 people who they deliberately are not producing.

9 I wanted to alert the Hearing Officer to that.

10 The STAs are a prime example.

11 We have no desire honestly to expand this. We

12 are going to be ready to go to hearing when you set that

13 hearing date, and I don't want to expand it, but I do

14 not want to be deprived of the opportunity to delve into

15 those issues and find the people they are not producing

16 and do not want to testify at this hearing, and I'm

17 going to have to bring them to this hearing, so you

18 can hear some of the facts that maybe they don't want you

19 to hear.

20 I'm sorry, but we're going to have to do that, and

21 we're going to have to have discovery. There's no other

22 way to do that when you have agencies like that.

23 MR. NETTLETON: Well, Mr. Hearing Officer, I

24 disagree with that. There is another way, and they have

25 been doing it for the last two years, and that's they

1 have gotten essentially every document that has gone

2 through the District. They have reports of all of

3 these people. That's why they are on there. They know

4 what every one of them is going to say before they

5 depose them, or they wouldn't be deposing them.

6 I don't see the need to be taking 30 depositions,

7 searching around for some admissions that someone is going

8 to make during a deposition. It's a waste of everybody's

9 time.

10 HEARING OFFICER: Okay. Well, we're getting a

11 little bit unfocused here.

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

13 I think, I don't intend to dictate to people

14 how they conduct their discovery, but what I do intend

15 to do is make it clear that it's up to them to

16 prioritize discovery, because we have a limited time

17 within which to do it, and I want to make sure that

18 the witnesses who are going to testify are made

19 available, and if you choose not to depose those

20 witnesses and want to depose somebody else who's not

21 on the District's witness list as one of their

22 employees, that's your choice.

23 But I'm not going to be sympathetic to

24 complaints, "Well, we didn't get to depose their

25 expert they are calling at trial, because we were

1 deposing somebody else."

2 I mean, I'm not going to tell you how to conduct

3 your discovery. I want to make sure that the witnesses

4 that are going to be called are made available, and

5 then it's up to you to determine how you prioritize

6 your discovery, given the time frames we have.

7 To try to bring this thing back into focus, as I

8 understand where we are, Mr. Nettleton has simply

9 asked me to strike those witnesses who were not

10 previously disclosed on the earlier witness list

11 that were exchanged back a year or so ago, and at this

12 point I'm not sure exactly who those witnesses are.

13 Why don't we take about half an hour break. I

14 want you to go through those lists, figure out who

15 on these lists were not previously disclosed, see if

16 there is an ability to reconcile those, if you have

17 substitute witnesses or witnesses that are employed by

18 the District or some other basis upon which there is

19 no need to depose them.

20 If there are some additional ones, let's get it

21 out on the table as to why they're being added now and

22 why they weren't added before, and maybe there's no

23 objection to it, and we can must add them to the list and

24 fit them in the discovery schedule and take it from

25 there.

1 MR. FITZGERALD: Mr. Hearing Officer, that's

2 certainly an approach we can pursue, but I would

3 respectfully suggest that before we break to do that

4 we might want to address the entry and access

5 request, because that naturally affects our discussions,

6 because three or four identified are key to that,

7 and based on the results of the available documents we

8 will or will not need to look at.

9 HEARING OFFICER: That's fine. I think that may

10 be appropriate as well.

11 MR. KOBELINSKI: Mr. Menton?

12 HEARING OFFICER: Yes?

13 MR. KOBELINSKI: This is Mark Kobelinski. If

14 I could, I would just again remind the parties that

15 prior to the stay going into effect there were many

16 letters going back and froth as opposed to formal

17 disclosures where the parties identified additional

18 witnesses that would be added to a final list.

19 I am not at my office now, and I don't know if

20 counsel at the hearing there, Mr. Earl and Mr. Hyde,

21 have those letters from my side, and I don't know if

22 the other parties have my letters.

23 That is why right before the stay went into

24 effect a final list was being prepared by all parties

25 to go ahead and document any new witnesses.

1 I don't think that the League is in a position

2 to tell the Court which we have previously disclosed

3 and which are truly new witnesses that they have heard

4 of for the first time now.

5 HEARING OFFICER: Well, you know, I think at this

6 point I'd recognize that the lists were not final before,

7 and there were going to be some modifications, and I

8 don't have any problem with that.

9 I don't know that we have to go back and figure out,

10 "Well, this one was disclosed, and we were going to add

11 him," or "This one wasn't." We have to deal with

12 where we are in the case now, and I think the way to do

13 that is there are some that clearly were not on the

14 original list, and there may be the case that everybody

15 will agree to some of the substitutions or some of the

16 additional witnesses in lieu of some of the facts that

17 had come up, and if they haven't, you know, I'll listen

18 to both sides and make a determination. I'm not

19 necessarily going to make that determination based upon

20 whether they were listed in a letter as an essential

21 witness at some prior point in the case.

22 That may be a factor to consider, but it's not going

23 to be the concluding factor in my mind.

24 So I think there's some benefit of going ahead and

25 trying to do it today while we have everybody here.

1 We need to get it going. If there are some that

2 we have to go back and look up and see how they got on

3 the list or whatever, we can do that, but I think, I

4 want to get this thing moving so that we have some

5 resolution on some of the disputes that are in

6 existence.

7 So I think there is a benefit of trying to do that

8 today.

9 MR. NETTLETON: Mr. Hearing Officer, let me

10 clarify one point on that. Everyone can go back and

11 check their own records.

12 As I recall before the stay went into effect

13 there was a requirement we file final witness lists on

14 or about July, a couple of days before the actual stay or

15 a week or so before the stay went into effect in

16 mid-July. We filed out final witness lists at that time

17 in compliance with your order, and in any event we have

18 not from our side added any additional witnesses from

19 the previous disclosures, from preliminary lists.

20 So aside from that I am aware of a letter that

21 Mr. Kobelinski did provide where they named during, I

22 don't know at that time or earlier, where they named

23 additional, a couple of additional people that would be

24 added, and I know who those people are. Only one of

25 them appears on the list, and the other one does not.

1 I could go through right now and tell you which

2 are new witnesses, but I don't know if you want to

3 go through the entry at this time.

4 HEARING OFFICER: Yeah. Let's go back to the entry

5 issues, and then we'll take a break, and if you have

6 the memory to go through and say the ones that you

7 don't believe are on there, then sit down with them

8 and see if we can figure out exactly who they are and

9 why they are on there, and then we'll come back and

10 take it up if we have to.

11 MR. NETTLETON: I actually looked, so I've got

12 the ones that are named.

13 (WHEREUPON, MR. HYDE LEFT THE HEARING ROOM.)

14 HEARING OFFICER: Okay. On the access issue,

15 let me make a couple of points preliminarily and then

16 get some responses from the parties.

17 I think that the U. S. response correctly pointed

18 out that at the time we set up the original access

19 procedures there was a great deal of effort put into the

20 process, and I also tried to make it clear that at that

21 point anybody who wanted access should coordinate their

22 access around the visits that were being set up then.

23 (WHEREUPON, MR. HOFFMAN LEFT THE HEARING ROOM.)

24 I do remember trying to emphasize that I would

25 not lightly grant access again in the future if there was

1 an opportunity to have conducted that access in the

2 past.

3 In reviewing the motions for new access that was

4 filed on behalf of the Coop, there was not a discussion

5 in there as to why the access was not or why the

6 previous access did not include the vegetation

7 assessments that are being sought now.

8 So that's one thing that struck my immediately, is

9 why wasn't this done before, and why do we have to go

10 back and revisit that now.

11 The second aspect to that deals with some of the

12 issues that we're talking about this morning, is in the

13 U.S. response there was an indication that this may

14 result in new witnesses.

15 (WHEREUPON, MR. HYDE ENTERED THE HEARING ROOM.)

16 Again I'm concerned about setting precedent in this

17 case of going back and revisiting the issues that were

18 fully argues and briefed in the past and opening up new

19 doors and new discovery needs, etcetera.

20 At some point we have to draw an end to some of

21 these things, and I made it clear early on during the

22 first access discussions that everybody should take

23 stock of their case and their needs and try to resolve

24 all those things while we could, and in that regard there

25 was always that outstanding issue as to my authority or

1 jurisdiction to order access into the Park, given all

2 the Department of Interior requirements, etcetera.

3 We never had to specifically address this, and

4 I'm concerned about getting into this now for fear that

5 we may be opening a whole new can of worms and

6 legal issues that will sidetrack us from the main focus

7 of the case.

8 Now having expressed those concerns, I do also

9 recognize that the condition of the Park and the

10 condition of the Refuge are very critical issues in

11 this case, and I'm concerned that there's a full

12 opportunity for those who are challenging the plan to

13 understand exactly what the condition is and what the

14 alleged ramifications are of the nutrients that have

15 been making their way into the Refuge and into the Park.

16 In that regard I have some concerns that because of

17 the nature of the Park and the restrictions on access

18 that it does severely limit the ability or does

19 restrict to some degree anyway the ability of those

20 contesting the plan to fully explore the present

21 conditions and therefore understand what they're

22 dealing with.

23 So I recognize the plight of the petitioners on the

24 one hand, but I also am concerned that I don't want to

25 establish a precedent for going back and revisiting issues

1 that we have fully discussed in the past and that we,

2 you know, that I tried to make clear for all parties to

3 do what was necessary while they had the opportunity

4 for access.

5 So having expressed those matters I'll give you

6 both an opportunity to respond to it.

7 Ms. Raepple, you can go first.

8 MS. RAEPPLE: Mr. Hearing Officer, our request

9 for entry is related to the work we are having done

10 by Law Environmental, Tom Lodge, and Ed Downing. They

11 are experts who will be working on satellite imagery

12 remote imaging in the Everglades Protection Area.

13 Could we have gotten into the Park and the

14 National Wildlife Refuge prior to this time we would

15 have, but of course as you know there are limitations

16 to our ability to get into the Park, and during the

17 stay we did not do so, and we have come to you as

18 quickly as we could when the stay was lifted.

19 At the time of the original entry back in

20 August, 1992, when this issue was discussed, Bill Green

21 on behalf of the Cooperative indicated that he did not

22 at that time believe there was a need, but he did

23 reserve the right in the future to come back to you

24 if a need was perceived.

25 That need has now been perceived by the Cooperative.

1 As I pointed out earlier today, the District

2 does have a remote sensing on their list. We have not

3 yet had an opportunity to depose that witness, and we

4 don't know what that witness is going to say.

5 But in all fairness we have deposed and determined

6 we have a need to have comparable evidence to the witnesses

7 on their list, and we have identified such witnesses and

8 retained them and are willing to go forward as soon as

9 possible, and we are able to get them, their work done,

10 their opinions complete in time for depositions to be

11 taken before the close of discovery.

12 We have indicated they will work in such a fashion

13 to get their opinions complete by March 15th.

14 The entry that the Cooperative is requesting is

15 not duplicative of the entry that has been obtained

16 by the Florida Sugar Cane League. That entry was

17 different in several respects.

18 Spacially it was more limited, but in the

19 intrusion and the time involved it was more expansive,

20 and let me explain.

21 The entry that the League had into the Park and

22 the Wildlife Refuge were limited to 16, 18 locations,

23 12 locations on historical transects and six additional

24 locations.

25 And my understanding is the purpose of that was to

1 determine the spacial trend if any of the constituents

2 in the waters and eh soils and also observing

3 the vegetation while they were in.

4 Spacially that' not sufficient. We need to cover

5 the entire Refuge and the entire area of interest, which

6 is the norther five mils approximately in the Park.

7 HEARING OFFICER: Well, I understand there's

8 differences between what was done in the past and

9 what's being requested now, but why couldn't what's being

10 requested now have been done in the past?

11 MS. RAEPPLE: Well, those sites would not have been

12 sufficient. Those were historical sites. We need to

13 identify sites that are discrete vegetative communities

14 of large enough size that they will be sensed by the

15 satellite imagery.

16 Even had we gone out on the prior entry we

17 could not have accomplished at stops that were being

18 made by the League. It would have involved additional

19 work.

20 The question was was the additional work done

21 then or the additional work done now.

22 HEARING OFFICER: Well, it might have involved

23 additional work but we could have done it all within

24 the same permits, and I guess that's the point that

25 Mr. Fitzgerald has raised, is that there is a process

1 that has to be gone through to get these permits, and

2 there is some question as to my authority to order

3 them, an that's one of the reasons why we wanted to

4 coordinate them all together at one tim.

5 Why couldn't you have done it back then? I guess

6 that's the point now I'm trying to raise, that I

7 tried earlier to make it clear to everybody that

8 because of the legal questions that we involved in

9 my authority to order it to begin with and also

10 because of the procedures that were involved in having

11 to get the permits I wanted everybody to try to

12 coordinate all that together so we wouldn't have to

13 revisit it.

14 Now we're having to revisit it, and I'm not

15 quite sure why we couldn't have done it all at one

16 time.

17 MS. RAEPPLE: Mr. Hearing Officer, the Cooperative

18 has been very forthcoming throughout these proceedings.

19 We have acted in good faith. We have not been playing

20 hide the ball.

21 All I can tell you is we did ont at that time

22 perceive the need. We have subsequently determined we

23 do have the need, and we have brought it to your

24 attention at the earliest opportunity.

25 HEARING OFFICER: Okay.

1 MR. FITZGERALD: Mr. Hearing Officer, we have

2 had discussion between counsel to try and address some

3 of the concerns that I have identified in my response,

4 and obviously those occurred before. I filed this late

5 yesterday, and I apologize for that.

6 But we were speaking right up until probably

7 half an hour or 45 minutes before I finally filed it,

8 so there are a few minor changes in what I said.

9 I indicated in my response that a group of

10 witnesses were still unidentified, and a few of those

11 were identified, I got the Fax, they literally crossed

12 in the Fax machines, where the coop did identify a few

13 additional witnesses by name.

14 But at the risk of sounding like Mr. Green, I

15 have to agree with the Hearing Officer. I think you're

16 right. The pleadings and our discussions have been

17 inadequate to justify doing this at this time.

18 When we went through the rather laborious process

19 that started actually in the spring of '92 and ran through

20 the actual commencement of the entry program, which I

21 think was December of '92, the first month, I mean,

22 I will not belabor the record, everybody remembers it,

23 it was a very difficult process, and I did not raise

24 in my pleading the thorniest issue, and that is your

25 authority to order access and so forth.

1 We had hoped to be able to avoid that to the extent

2 possible.

3 At the time, as I point out, we asked if anybody

4 else wanted to do anything else. As I have pointed

5 out this morning in discussion on the witness list...

6 HEARING OFFICER: Mr. Fitzgerald, I understand all

7 these points, because those are the ones I just raised,

8 but my question to you is obviously the condition of

9 what's going on in the Park and the Refuge are the key

10 issues, and don't the petitioners have somewhat of a

11 more difficult burden than they normally would in a

12 typical case of trying to get access and trying to

13 discovery whether clearly, what are the most critical

14 issues in this case?

15 MR. FITZGERALD: Well, I agree. They have a

16 hellacious burden to this point in time, based on several

17 factors.

18 (WHEREUPON, MR. KILLINGER ENTERED THE HEARING ROOM.)

19 The worst and most complicated is the intervention

20 of the Congressional mandate and the Endangered Species

21 Act and the legislation to establish the National Park

22 and underlying the Refuge existence.

23 HEARING OFFICER: Okay. You lost me on that. Where

24 is all this coming from?

25 MR. FITZGERALD: I have noted in one of the

1 footnotes the Refuge currently is at the height of

2 the migratory bird season, which is part of the reason

3 the Refuge is there.

4 Additionally I have been advised that the endangered

5 Everglades snail kit is now engaged in nesting

6 activity in the Refuge, which is one of the few remaining

7 preserves for that species.

8 Late yesterday after speaking with Ms. Raepple

9 I was able to get a hold of the Superintendent of the

10 Everglades National Park to see if there was an

11 additional concern in that enormous five-mile band of the

12 park that they would like to enter and was advised that

13 not less than two weeks ago he personally observed two

14 separate endangered species with that area, both the

15 snail kit and the endangered wood stork.

16 They also, the wood stork is just about, depending

17 on water levels, to start its nesting activity, but

18 it's already in the pre-nesting, foraging stage, and

19 the snail kit would be expected to be in the same

20 nesting phase as in Loxahatchee.

21 They are very sensitive to disturbances because

22 of their precarious state, and neither of the Resource

23 Managers reacted at all positively to the idea of, (A),

24 running a reconnaissance chopper there to pick sites out,

25 or, (B), doing a lot of activity on the ground that

1 might be within that range.

2 Very little limitation or specificity was provided

3 or could be obtained in response to their conclusions

4 to say where they want to go. To say they want to go

5 to the five-mile point or those most germane to the

6 site plan, you have 60 square miles, 144,000 acres.

7 MS. RAEPPLE: Mr. Hearing Officer, excuse me.

8 I hate to interrupt.

9 We have offered the reconnaissance flight at

10 substantial expense to my client, and we would identify

11 with specificity, giving the coordinate of where we

12 want to go in advance, so this discussion about the

13 size of the area we're talking about is irrelevant in

14 light of the offer that we have made.

15 MR. FITZGERALD: Anything further?

16 MS. RAEPPLE: No.

17 MS. RAEPPLE: Through late yesterday it was

18 the extent provided by the Coop. At that time it was

19 said they would provide multiple sites, far in excess

20 of the 10 or 20 that are in the Park and the Refuge that

21 they wanted, and they would put the burden on the

22 United States on the Resource Managers to decide whether

23 those sites then and over the period they would make

24 their entry would not disturb the endangered species or

25 otherwise engage concerns of those people.

1 I don't think that's the right place to put the

2 burden at this juncture.

3 HEARING OFFICER: Well, it sounds like they are

4 just giving you some options, so if there was some

5 difficulty that they are not aware of, I mean, they are

6 not going to be familiar with some of the sensitivities

7 that the Park people are going to be.

8 MR. FITZGERALD: In order to effect, I don't know

9 how long it would take to evaluate those, and I told

10 her I would also bring that to the attention of the

11 Resource Managers, but logically I don't see that provides

12 a great advantage.

13 TELEPHONE OPERATOR: Excuse me for interrupting.

14 Mr. Menton?

15 HEARING OFFICER: Yes.

16 TELEPHONE OPERATOR: This is the AT&T conference

17 operator. I have add Yvonne on behalf of

18 Mr. Lehtinen.

19 HEARING OFFICER: Thank you.

20 TELEPHONE OPERATOR: Thank you. She's on the line.

21 MR. FITZGERALD: If we had a true issue engaged here

22 I might be included to put some high level of burden on

23 the Resource Managers and their staff. But we get back

24 to the issue of what's the justification.

25 I can't get out of the Coop what these people are

1 going to be doing. They say they're going to be

2 ground truthing the data.

3 They could be preparing to try and cross or

4 otherwise refute the District's remote sensing

5 specialist, which I assume is what their photo guys

6 were trying for before, and sometime after December, 1992,

7 that did not work out, and incidently their experts

8 said ground truthing is required, so they knew in

9 December, '92, they would have to ground truth something,

10 or they plan to do some independent work.

11 We can't tell from the descriptions. I think they

12 need to explain very carefully and extensively what

13 these people will do and how it will be used in the case.

14 I'm not saying our expert won't or the District's

15 expert will not lay out certain vegetative changes or

16 historical changes based on his analysis, but we don't

17 know if there will be any disagreement on that, and

18 absent some sense there will be disagreement I and I

19 think my clients will be very reluctant to engage in the

20 kind of conduct that directly goes to mandates

21 statutorily from Congress, in part why that permit

22 system it there.

23 We would have no objection I believe to the

24 sharing of information and data. It may be they don't

25 have a dispute with our experts.

1 HEARING OFFICER: I think you are entitled to know

2 exactly what they intend to do, and I don't know if

3 that has been communicated or not. Are you telling me

4 that hasn't been?

5 MR. FITZGERALD: No. I cannot tell whether what they

6 really intend to do is to object to whatever

7 testimony Dr. Jensen gives or some totally new theory.

8 Mr. Earl pointed out in the earlier hearings...

9 HEARING OFFICER: I don't think you're entitled to

10 know what the conclusions are yet in terms of whether

11 it's going to refute some of the testimony or not,

12 but I think you're entitled to know what they intend

13 to do and the type of information they intend to be

14 gathering.

15 MS. RAEPPLE: Mr. Hearing Officer, I am at

16 somewhat of a disadvantage in knowing exactly all the

17 ways we will be using the information, because I have

18 not had an opportunity to discover the information

19 that will be provided by the District, by their remote

20 sensors.

21 I don't know if I have a dispute with what they

22 say. I haven't had the opportunity to hear their

23 testimony.

24 But I have told Mr. Fitzgerald what my experts

25 will be doing and using a land satellite imagery to

1 develop vegetative maps, and they will be ground

2 truthing the current vegetation, because it's the only

3 vegetation, and as you have pointed out this is critical

4 to many of these, both to causation, to remedy, to the

5 moderating provisions. The vegetative communities that

6 are in the Everglades Protection Area are critical to

7 may, and as I have told you I don't know what

8 more I can tell them.

9 MR. KOBELINSKI: Mr. Menton, this is Mark

10 Kobelinski. Although we are not a party to the entry

11 and access request, since we are consolidated with the

12 Coop we have an interest, and I have just two points to

13 raise.

14 Number one, with regard to seeing whether there is

15 a dispute with Mr. Jensen, who is the District or

16 respondent's expert witness on sensing, he is the

17 witness, one of several, that we were told we can only

18 depose among two days, and that is at the end of

19 February, so I don't think we are in a position to wait

20 and see if we have a dispute, because we have not been

21 able to depose him prior to this, and we are now told

22 we can't depose him until the end of February.

23 Number two, the other point is it's more of due

24 process or fairness. We have been restricted prior to

25 this suit and during this suit to a limited entry and

1 access to the Refuge and Park.

2 The District and the federal government scientists

3 have had free access both prior to this action and

4 throughout these proceedings. They were not limited to

5 just the entry and access, and it's our understanding

6 from both depositions and public hearings that Mr.

7 Jensen and other scientists have had free access to

8 these areas to do just this, while we were being

9 restricted to small, specific dates and places, and that

10 is not quite fair.

11 MR. FITZGERALD: Mr. Hearing Officer, in the data

12 provided to the United States from the League after

13 entry into the Everglades National Park has extensive

14 notations on vegetative communities.

15 What they have not established is why did they

16 wait until now.

17 They are carping about then waiting until the

18 availability dates of Dr. Jensen, and yet they admit

19 they don't know if there is a dispute.

20 The problem is they have waited unit now, which

21 is the worst possible time for the resource protection

22 to do this. The Coop sits there with a straight face

23 and says, "We couldn't bring this up until now. It

24 only came up when the stay was lifted."

25 You looked at a pleading from them during the stay

1 asking them to give entry and access in another

2 portion of the EPA.

3 They were not shy about filing it, and now we have

4 heard Mr. Green this morning say their photographic

5 remote sensing vegetative work didn't pan out way back when

6 and Coale and Herbert have done nothing since their

7 depos, which was in the first and second week of December,

8 1992.

9 I find that a little bit hard to reconcile. What

10 we really have here is the situation where they are

11 telling us by letter of the 14th of January the final

12 opinions by their witnesses won't be available based

13 on this until March 15th, and that's if they get in by

14 the end of January.

15 They don't say final opinions of Erickson, Lodge,

16 and Downing. They say final opinions of witnesses.

17 We don't know where the data is going and who

18 else might have to be deposing at that juncture, but

19 then they have 11 witnesses they have told us

20 that have no final opinions until after that date

21 anyway.

22 We only have eight days of depositions left at

23 that time. They have pushed it to the absolute end

24 on the theory or the belief that there might be a

25 conflict, and I don't see it.

1 I don't see that as justified on the pleadings

2 and their rationale for not having asked right up

3 front.

4 As I told you in the pleadings, we sent specific

5 letters to the two parties, saying, "Do you want to do

6 anything else? Are you joining, going in?"

7 The League went in with some of their transect

8 flights by airboat. They transmitted large areas of

9 the Loxahatchee National Refuge. Any of this work

10 could have been done along the way.

11 It could have been done during the reconnaissance

12 phase in the Everglades National Park by the League.

13 They chose not to do it.

14 And that work extended over a year-long period,

15 and this would impose virtually no problem in the sense

16 of endangered species if it were done in mid-summer or

17 early summer, after the nesting periods are complete.

18 HEARING OFFICER: When are the nesting periods

19 complete?

20 MR. FITZGERALD: Late spring to early summer. I

21 would have to ask the experts. It's a floating period,

22 dependent in some respects on water stages and other

23 factors.

24 It's dictated by the biology of the ecosystem.

25 nesting success is dictated by the same factors.

1 MR. GREEN: Your Honor, excuse me. This is

2 Bill Green. I apologize for interrupting.

3 Mr., there are a lot of things that Mr. Fitzgerald

4 said that I disagree with about final opinions and all

5 that.

6 I think the bottom line is we did not know we needed

7 this information when the other entry was going on, as

8 said by Ms. Raepple.

9 Now Mr. Fitzgerald is testifying, and to answer

10 this controversy we need to bring Mr. Lodge in and

11 tell him more about the sampling, and if Mr. Fitzgerald

12 needs to bring his people in, that's one approach.

13 But the other approach would be just to simply let

14 the reconnaissance go, as Ms. Raepple described, to see

15 if there's really a problem. There might not be a

16 problem. I would urge you to consider that.

17 Apologize for the interrupting.

18 MR. FITZGERALD: Mr. Hearing Officer, the United

19 States effectively has no standing to object to the

20 high altitude overflight of the Park and Refuge in

21 accordance with the FAR, Federal Aviation, regulations

22 and existing regulations governing disturbance of the

23 species. They can fly over them to their abandon.

24 We have no objection to that obviously. It is

25 permissible, if that is the reconnaissance as I understand

1 Mr. Green is suggesting.

2 HEARING OFFICER: Okay. Well, is that going to be,

3 is that the fist step you were talking about?

4 MS. RAEPPLE: Yes, that's the first stage.

5 HEARING OFFICER: Okay. Why don't you do that,

6 get your list together of the various points?

7 As I indicated earlier, there are two conflicting

8 concerns that I have, and the first is a concern about

9 setting a precedent for going back and revisit the

10 issues that could have and should have been taken

11 care of earlier on in the case.

12 At this point in the proceeding I am very

13 reluctant to go back and do that, because I think we

14 will only further delay matters.

15 But on the other hand I do feel that the

16 condition of the Park and the opportunity for the

17 plaintiffs or petitioners, because they do not have

18 unlimited or free access to the park, and they need to

19 have an opportunity to understand the conditions, so

20 I am going to have to consider this a little bit

21 further, take your oversite flights, see if you can

22 come up with some potential points, run them by

23 Mr. Fitzgerald, let him talk to this experts about it,

24 and if they've got a problem with it then we'll sit

25 down and talk about this some more. Maybe they will be

1 able to work out an agreement to see what they need.

2 I that regard, you know, I think you need to be

3 up front with him as to exactly what you intend to do

4 and the information that's being sought and how you

5 intend to use it, and I understand that until you get

6 the results you will now know exactly what, you know,

7 what the experts may be able to do, but I think you

8 can be forthright with him in terms of what your experts

9 are asking him to look for and the types of

10 observations, etcetera, that they intend to be making.

11 See if we can do that. We can take that up at our

12 next hearing if it can't be resolved.

13 MR. NETTLETON: Mr. Hearing Officer, on this issue

14 I have heard two different assertions by the Cooperative,

15 and we need to get clarification on that and might be

16 able to resolve some of these issues.

17 That is I have heard one that the people may be

18 going in to develop their own vegetative maps, and I

19 have heard, too, that they may be going in to refute

20 what Dr. Jensen is doing. If the first is correct,

21 then the issue needs to be joined with the federal

22 government.

23 If it's the second, I may be able to shed some

24 light that may eliminate some of these issues.

25 If they can clarify what they plan to use them

1 for, maybe we can resolve this.

2 MS. RAEPPLE: Mr. Hearing Officer, we intend to do

3 both. At least on the first one, we do intend to create

4 our own vegetative map.

5 On the second one I am at a a loss, because I have

6 not deposed Mr. Jensen. We may be in fact in agreement.

7 I don't know.

8 HEARING OFFICER: Mr. Nettleton, what can you

9 shed?

10 MR. NETTLETON: If they plan to create their own

11 vegetative maps, then obviously I can't help.

12 HEARING OFFICER: Well, why don't you share it

13 with us anyway? It may have...

14 MR. NETTLETON: Well, I would have to check with

15 Dr. Jensen, but I believe that Dr. Jensen may be

16 only testifying concerning the remote sensing in

17 Area 2-A and not in the area of the Refuge or the

18 Park, so what I was going to suggest is if I could

19 verify that with him it might be this would be

20 unnecessary.

21 HEARING OFFICER: Well, that may impact upon what

22 your experts choose to do, and it may not.

23 MS. RAEPPLE: That would only address, that would

24 limit the area in which I may need to rebut what

25 Mr. Jensen says, but it does not eliminate the need to

1 look at the Loxahatchee and the Park and map the

2 vegetative communities in those areas.

3 MR. FITZGERALD: Mr. Hearing Officer, to the

4 extent that is true, and I accept it, it was an issue

5 engaged by the petition filed by the Coop in this case.

6 It is onto a new issue. It was totally predictable

7 they might want to do this vegetative mapping.

8 Their discovery requests have clearly sought the

9 vegetative mapping and data of the Refuge, of DEP,

10 and the United States.

11 This has been known since the outset. I think it

12 should loom very large in any decision you make as

13 to the impact on the resource.

14 MS. RAEPPLE: Mr. Hearing Officer, the issue of

15 vegetative communities was known, and we proceeded with

16 identifying to the best of our ability witnesses and

17 maps and photos we can utilize.

18 We have subsequently determined, we have

19 identified witnesses who are telling us we can get a

20 better work product by using satellite imagery.

21 That's the level of effort that the respondents are

22 going to be doing in this area of 2-A.

23 We want to give you the best information that's

24 available, and that's what we are being told, and I can

25 bring you that. It's the best information, this remote

1 sensing data from the land satellite and the spectral

2 analysis that they are able to utilize with the data.

3 HEARING OFFICER: Okay. Well, do the aerial

4 overflight and see what you can come up with.

5 I think I have expressed my concerns on both sides

6 of the issue in terms of going back and revisiting

7 matters that arguable should have been taken care of

8 earlier in the case. I'm very reluctant do that.

9 I don't want to set that precedent.

10 But on the other hand I do have some concerns

11 that the petitioners have full opportunity to understand

12 the conditions that exist in both the Park and the

13 Refuge.

14 Because of the limited access that's available

15 I think there have been some limitations on their

16 ability to fully explore the conditions, but, you know,

17 I wish these things had been taken care of during the

18 initial access to the Park and during the testing

19 taking place before. I would have been a lot easier.

20 I'm very concerned about reopening these issues.

21 See if you can come up with some more information

22 on your overflights, talk about it with Mr. Fitzgerald,

23 and I'll think about it at a little bit more. If we need

24 to take it up at the next hearing we can do it.

25 MS. RAEPPLE: Mr. Hearing Officer, on that point,

1 the next hearing is, when was that set? Is that going

2 to be...

3 HEARING OFFICER: Right now we have one set for

4 February 11th.

5 MS. RAEPPLE: Right. Well we were hoping to get

6 this completed by the end of January in order to have

7 the opinions complete by the middle of March.

8 My concern is that if we take to long in getting

9 the authority to go forward and gain entry that we

10 will not be able to do the work in a timely fashion.

11 HEARING OFFICER: Well, when can you do your

12 aerial overflights?

13 MS. RAEPPLE: Well, when I leave here I'll call

14 my experts and see if they can get out there this

15 weekend or the fist part of the week.

16 HEARING OFFICER: We can set up a telephone

17 conference call before February 11th to resolve this.

18 MS. RAEPPLE: I would appreciate it.

19 MR. FITZGERALD: I would really appreciate it,

20 Mr. Hearing Officer, if they scrupulously observe the

21 regulation. We would like to avoid another Dr.

22 Richardson situation.

23 HEARING OFFICER: Okay. I will say that, you know,

24 at this point in trying to weight the various concerns

25 I have, my inclination is that the petitioners should

1 have an opportunity to complete the sampling, as

2 reluctant as I am to reopen this issue.

3 So, Mr. Fitzgerald, I'd like to see if there's

4 some way you can work this out. I understand your

5 concerns if we have to get into some of these issues

6 about nesting and timing and all that. If you can't work

7 that out with her, I'll listen to you some more on

8 that.

9 But I guess I'm just, you know, trying to

10 balance out the various factors. I think I'm leaning

11 towards giving them an opportunity to see what the

12 conditions are.

13 MR. FITZGERALD: I understand your concern. I

14 feel compelled to point out no Resource Manager will

15 issue a permit to authorize a violation of the Endangered

16 Species Act. They are not in a position to do that.

17 At that point we have really a difficult situation.

18 HEARING OFFICER: Well, if we're going to face those

19 issues and you can't get them in for those reasons,

20 then that is something that we can discuss further.

21 We may be able to come up with some alternative in

22 terms of setting up that vegetative observation procedure

23 after the nesting season, even if it's after the

24 commencement of the hearing. Maybe we will have to

25 balance that out until later on. We can work around

1 those issue if we have to.

2 Okay.

3 MS. RAEPPLE: Thank you, Mr. Hearing Officer.

4 HEARING OFFICER: I guess that brings us back to

5 the witness list thing. Wy don't we take...

6 MR. NETTLETON: We do still have, Mr. Hearing

7 Officer, the other issue on the prehearing conference.

8 When do you want to do that?

9 HEARING OFFICER: I think we can do that after

10 maybe some of the things on witnesses are clarified,

11 and it might have some impact on the prehearing

12 conference.

13 I have read what the parties have submitted, and

14 maybe it's better if I just go ahead and throw out some

15 ideas I have on that. You can discuss those during the

16 break, and you can come back with any particular

17 objections you may have to point you wanted to raise.

18 The first thing that came up in connection with the

19 motion for prehearing conference is again the status of

20 the permitting cases.

21 We talked bout that several times, and we talked

22 about consolidating the hearing a little bit, whether

23 it's feasible,etcetera, etcetera.

24 One of the concerns that I've always had in terms

25 of doing a formal consolidation of the permitting cases

1 with he SWIM plan cases is the question in my mind

2 as to whether or not I actually have to do separate

3 recommended orders in connection with the two

4 matters. I think I probably do as I read the statutes

5 and try to put it all together.

6 So if there are separate recommended order

7 required, I don't know that a formal consolidation is

8 the appropriate way to go.

9 Obviously there are going to be a lot of overlaps

10 of the two cases. You probably have a better understanding

11 as to how much that overlap is going to take place

12 than I do at this point.

13 I guess by default I'm going to be the person

14 that will hear both of those proceedings, and I

15 certainly don't have a problem if the parties can

16 stipulate that the evidence presented in connection

17 with the SWIM plan case is part of the permitting case,

18 and then we go and do the permitting case separately

19 and present whatever additional evidence is necessary at

20 that time, and that may go back to the segmenting

21 issues that we talked about, and that may be the

22 appropriate way to approach it.

23 But in any event I think we need to give some

24 thought as to how we're going to handle the permitting

25 case.

1 My initial feeling is that I am going to have to

2 do separate recommended orders. I don't know that

3 it's going to be any easier to just try to do

4 everything all at once, because we'll have to segment

5 it out to a certain degree anyway.

6 I am willing to entertain a stipulation between

7 the parties that they don't have to present the same

8 evidence in the permitting case that's been presented

9 in the SWIM plan case, and maybe we'll have to set

10 aside a separate time frame to take additional evidence

11 on the permitting case. Think about that and give me

12 your thoughts.

13 The second thing mentioned in connection with the

14 prehearing conference is I want this exercise to be

15 productive rather than destructive.

16 I'm concerned that the whole idea of the

17 prehearing conference can take on a life of its own

18 and become more involved than it needs to be.

19 But I think it's essential that we do it, because

20 there's no other way for everybody to get a handle on

21 this case, and I intend to go forward with it.

22 Some of the thoughts that occurred to me in

23 reviewing the motions that were field was that I think

24 maybe the best way to approach this, and I'm not

25 saying this is what we will do, but I'll be happy to

1 listen to responses when we come back after a break,

2 but it seems to me that since we are looking at the

3 situation where we're going to start out with

4 the District presenting its case as to what the District

5 did in adopting the plan and how it complies, etcetera,

6 etcetera, that probably a useful starting point would be

7 to be a better understanding as to exactly what the

8 District intends to do in that phase of the case.

9 So what my preliminary thoughts were were to set

10 up a schedule that by January 28th the District would

11 sit down with its witness list and try to give an

12 overview as to what it intends to do in that preliminary

13 stage of the case.

14 During that time frame petitioners should go back

15 and review their petitions, determine what issues

16 may have become moot or that they no longer intend

17 to pursue, determine whether they can delete some of

18 the issues they raised initially, and if there are some

19 that have to be added make sure they are clearly set

20 forth, and also have that available by January 28th.

21 That would give us a starting point. On both sides to

22 try to bring this thing into focus a little bit better.

23 I agree with the suggestions made for a

24 simultaneous exchange of preliminary statements of

25 position on issues of fact, law and policy as well

1 as the designation of witnesses that would relate

2 to those particular matters.

3 That should take place prior to the February 11th

4 conference, probably a week before, on February 4th,

5 would be the appropriate time, and we can take up any

6 issues on that on February 11th.

7 Those are my preliminary thoughts, an I'll give

8 you each an opportunity to digest them, come back

9 with comments or concepts you may have in that

10 regard.

11 Why done we take a, how long do you think you

12 need to go through the witness lists?

13 MR. HYDE: I think 30 minutes is a reasonable

14 amount of time. We don't want to lose Mr. Kobelinski.

15 HEARING OFFICER: We'll keep the phone on. Anybody

16 that wants to stay on the phone is invited to do so.

17 You can work here in this room.

18 I'll come back in half an hour and see what

19 progress has been made, and we'll take it up.

20 I do have to warn you I have to go over a

21 swearing in at four o'clock, so...

22 MS. PONZOLI: May I say one thing at this point,

23 just so we're very clear? Mr. Nettleton had mentioned

24 that the respondents and the intervenors had shared a

25 list of eight to nine names. Two of those people are my

1 Resource Managers, the Refuge Manger and the

2 Superintendent.

3 (WHEREUPON, MR. FITZGERALD LEFT THE HEARING ROOM.)

4 I absolutely, if there's any doubt I need to put

5 these people on I will put them on, so I don't want there

6 to be any argument that we somehow haven't included all

7 the names in the dialogue. If you want me to read the

8 names in the record or share the names in writing with

9 you I will.

10 HEARING OFFICER: Okay. I'm not with you.

11 MS. PONZOLI: This is the second list, the under 10

12 second list. I want it included in the dialogue, so

13 that there is no question these names are also

14 available for witnesses.

15 HEARING OFFICER: Okay, well, what I think the

16 appropriate thing to do is make sure that you go through

17 all the names that are on your list, and what this is is

18 I guess a supplement to your 30, initial 30, and make

19 sure that they understand exactly who's on there, and

20 see if we can reach some agreement that your list from

21 30 can be expanded to include them, or if we can't then

22 we'll come back and revisit that, and then likewise we'll

23 go through the same thing with the list from the

24 petitioners in terms of who's on the second list and

25 who are the new witnesses, and see if we can come to

1 some resolution to expand that.

2 MS. PONZOLI: Thank you.

3 HEARING OFFICER: Okay.

4 (WHEREUPON, THE HEARING WAS RECESSED FROM 11:43 A.M.

5 TO 12:17 P.M., AT WHICH TIME ALL ATTENDEES WERE PRESENT IN THE

6 HEARING ROOM.)

7 MR. EARL: Mr. Hearing Officer, we have on our

8 second list, as I indicated to you earlier, we have

9 suggested, we had one, two, three, four, five, six

10 seven witnesses who are also their witnesses, and

11 we have said that we can take them off our list if we

12 had a stipulation that they can be examined beyond the

13 scope of direct, we can cross examine. We certainly

14 don't need them on our list, and we have been told that

15 would not be acceptable, that sort of a stipulation.

16 We have also suggested that we do have an

17 agreement, I think, on the several standing witnesses,

18 Mr. Rackley, Mr. Parker, an I don't know what the

19 Coop did on that.

20 Do we have agreement?

21 HEARING OFFICER: Okay, let's go back and take

22 them one at a time and see if we can talk about them.

23 On the idea of the seven District witnesses and

24 beyond the scope of direct.

25 MR. EARL: Some of them are U.S. witnesses.

1 MS. PONZOLI: It's probably far more than seven.

2 MR. EARL: On this list it's Martin Fleming,

3 U.S. witness, Dave Swift, Galen Miller.

4 MR. NETTLETON: Mr. Hearing Officer, I think

5 you're confused with what we're talking to. I think

6 what you're referring to are new witnesses they have

7 added to my motion, and we have moved over into the

8 second list. I think there are two different issues

9 there.

10 HEARING OFFICER: Okay.

11 MR. EARL: I was presenting, trying to

12 eliminate witnesses on the second list.

13 HEARING OFFICER: You're talking about Witness

14 List 2?

15 MR. EARL: Yes.

16 HEARING OFFICER: Or are you talking about your

17 separate letter there?

18 MR. EARL: Witness List 2. Second letter is just

19 depositions.

20 HEARING OFFICER: Okay. I'm looking at the list.

21 I didn't find any of the names.

22 MR. EARL: Mr. Fleming is on there.

23 MR. KOBELINSKI: Number 14, I believe.

24 HEARING OFFICER: Fourteen? Okay.

25 MR. EARL: Mr. Swift, number 16. He's a

1 District employee, Mr. Swift is. Del Bottcher is a

2 District witness.

3 MR. KOBELINSKI: Galen Miller is number 20.

4 MR. EARL: Thirty-six is Del Bottcher. Mark

5 Maffei is a U.S. witness, number 39. Number 40 is

6 Michael Soukup. Number 21 is Butkett Neely, also a

7 federal witness. Forty-two is Richard Harvey, a DEP

8 witness.

9 And we suggest for those individuals that we

10 don't intend to cover them on our witness list if it's

11 agreed that we can examine them when they testify

12 for the other side, beyond the scope of the direct.

13 HEARING OFFICER: Okay. Let me just say if there's

14 a stipulation tot hat effect you're not going to be

15 precluded for raising relevancy objections or anything

16 along those lines.

17 MS. PONZOLI: I'm not going to stipulate at this

18 time. They can do anything with my witness that they

19 want to after I choose to put him on the stand. I

20 believe it is appropriate for you to rule at that time,

21 Mr. Menton, on what they can and can't do, and I

22 realize you may be liberal in allowing them to do things

23 at that time, but I think it's appropriate to wait until

24 that time, and if they say this is now a hostile

25 witness or cross examining or whatever they're going to

1 do, they have to do it then, and we'll deal with

2 specific questions and specific answers.

3 HEARING OFFICER: Okay. I understand. I guess

4 my point of view, generally within a hearing anyway

5 when someone objects because it's beyond the scope of

6 cross I usually sustain those objections. If I allow

7 them to do that I'm not going to keep you for raising

8 a relevancy objection or some other objection you may

9 have.

10 MS. PONZOLI: I don't want to stipulate up front

11 that they can do whatever thy want, and then when I

12 start objecting they say, "Ms. Ponzoli entered a

13 stipulation way back when."

14 HEARING OFFICER: I will not interpret a stipulation

15 that way.

16 I guess the critical point would be if for some

17 reason the District or the federal government decided

18 not to call these witnesses, and then there was never an

19 opportunity to cross examine, and they wanted to have an

20 opportunity to call them as part of their case. I

21 mean, that's one thing I think we need to resolve up front

22 if that were to happen.

23 It may be that that won't occur, and all these

24 witnesses will be called, but, so I think that's one

25 thing we need to resolve.

1 In terms of whether or no they can ask

2 question beyond the scope, I'll let them do the

3 anyway. In terms of whether that's going to preclude

4 you from relevancy objections, no, it's not. You

5 always have that opportunity, and we'll deal with those

6 issues at the hearing.

7 So I guess the bottom line here is whether or not

8 they should have an opportunity to call these witnesses

9 as part of their case, just as you can call them during

10 your case.

11 I don't know what our position will be on that.

12 MS. PONZOLI: Well, pretty clearly my position i

13 I intend to all Burk Neely, Michael Soukup as my

14 witnesses, and Mark Maffei, but Mr. Fleming is having some

15 very severe family problems, and it's very likely I

16 will not be calling him. I have been trying to reach

17 him for a depo, because I do have him as a designated

18 witness, and his family problems are out of state, and

19 I'm having trouble reaching him, and it's very likely

20 I will not be calling him.

21 I have to tell you I'm not sure how they're going

22 to get him here for a hearing, so do they want his

23 deposition so they can use it at trial? I mean, I'm a

24 little confused as to the procedure.

25 MR. EARL: Mr. Hearing Officer, right now if they

1 take him off the list and say they won't call him, I

2 won't depose him.

3 MS. PONZOLI: Okay, for my four on their second

4 witness list we don't really have a problem, because

5 if I bring them you have made it fairly clear they will

6 be able to examine them at trial, and if I don't

7 bring them they simply don't have to have them.

8 MR. EARL: No, I'm talking about Mr. Fleming.

9 MS. PONZOLI: Well, I'm representing I will be

10 bring in the other three unless they are physically

11 incapacitated, so no problem.

12 MR. EARL: My stipulation related to Mr. Fleming.

13 MS. PONZOLI: You're right.

14 MR. EARL: Okay.

15 MR. NETTLETON: Mr. Hearing Officer, form the

16 District's standpoint we don't have as a big a problem

17 with the witnesses.

18 Our intent all along has been to streamline the

19 discovery so we can get to some kind of manageable

20 trial in this case, and that's what our objection

21 was, not to our people on tier list, but to new

22 experts and just the enormity of the experts, which

23 includes additional experts on the second list. That

24 was what we hoped we would be able to restrict.

25 Mr. Earl had indicated they would be willing to

1 discuss stipulation concerning some of these witnesses

2 that may be foundational, but I don't know that we would

3 be in a position to enter those. It would depend on

4 what the stipulation was and what the witnesses did for

5 another, and I'm not clear on that right now, but

6 that's an avenue we could pursue.

7 HEARING OFFICER: Okay. I think we're getting

8 ahead of ourselves. Let's see if we can take those

9 seven or I don't know how many we ended up with and see

10 if we can come to some resolution.

11 As I understand, Ms. Ponzoli, so far as the federal

12 witnesses are concerned, we have basically come to some

13 sort of consensus in terms of how we're going to handle

14 those.

15 You'll be able to state your objections during

16 cross examination, if it goes to relevancy, etcetera.

17 I'm not going to really pay much attention to beyond

18 the scope of direct objections, but I will listen to

19 relevancy objections or other objections as they come

20 up.

21 Okay. Everybody clear on that?

22 Now with the District witnesses, can we have the

23 same sort of arrangement?

24 MR. NETTLETON: I assume, if that's your manner of

25 ruling, that we will obviously live by the same rules.

1 HEARING OFFICER: Okay, but in terms of the

2 witnesses that are on there that they have also listed,

3 if you don't call them do we have a problem if they

4 come back and say they want to call them as part of

5 their case in chief?

6 MR. NETTLETON: I just have the natural problem

7 of the number of witnesses. We were trying to cut down.

8 HEARING OFFICER: We'll take a look at that

9 overall, when we get back to it, but, I mean, just in

10 concept with the idea?

11 MR. NETTLETON: In concept I don't have any problem.

12 Obviously they can call the witnesses if they feel it

13 will help their case.

14 HEARING OFFICER: Okay, but since you've got them

15 listed anyway and they intend to call them as part of

16 their case, too, I would assume they would be on the

17 discovery list...

18 MR. NETTLETON: As I have listed the witnesses,

19 Mr. Hearing Officer, on our list, the only reasons they

20 are there is because I intend to call them, just on that

21 final list. At this point I'm intending to call them.

22 HEARING OFFICER: So it seems to me we are okay.

23 All right.

24 Let's move to the next group of people then. Are

25 these new experts?

1 MR. EARL: The next group of people were, we

2 discussed them, also, were foundation, authenticity,

3 and those were on the second list, number 1, Jack Jones,

4 number 5, Brad Waller, number 6, Mr. Owens,

5 number 7, Mr. Jennings, number 8, Mr. Li, W. L. L-i,

6 number 9, Mr. LeFohn, and number 10, Mr., Dr. Krupa.

7 Those were people who have done studies or done

8 work.

9 With the exception of 9 and 10 let me, LeFohn and

10 Krupa, let me deal with the separately. Numbers 1, 5,

11 6, 7, and 8 were people who, for example, 6 and 7, they

12 did a topographic survey of the ground levels and

13 therefore the water levels in the Water Conservation

14 Areas 2 and 3.

15 Other experts are going to utilize that survey,

16 and their expert, Mr. Larsen, supervised their work.

17 We ant Mr. Larsen, we don't need those two

18 individuals, because Mr. Larsen can testify if we have

19 a stipulation, he can talk about their work and the

20 results of their work.

21 Mr. Waller has done an analysis of, number 5,

22 has done an analysis of a hydrologic data, the gauges.

23 He's done a chronology of the project, the structures

24 and the forms of the project.

25 Again if we can get a stipulation we don't need.

1 those individuals. Mr. Larsen can testify about those.

2 MR. FITZGERALD: With regard to those three when we

3 discussed them during the break Owens we believe his

4 depo was completed when he handed over the certified

5 survey. Jenning was not. There was still work he had

6 not done.

7 HEARING OFFICER: There was what?

8 MR. FITZGERALD: It was started but was not

9 completed.

10 Mr. Waller has been, depending on continuing over

11 two separate occasions, but is down to, they are down to

12 be deposed.

13 Waller, 12 to 14 days from now, Jennings 15 or 16

14 days from now, and Coale and Herbert on February 18th.

15 We could address those at that time and see what

16 additionally they have done, but as I suggested to

17 Mr. Earl if they draft a stipulation, get it to us before

18 the depo that we have pre-set, we can figure out and

19 focus the depo if they are strictly fundamental witnesses.

20 Mr. Waller is a good example. He and our expert

21 helping me on the depo, they are in pretty much accord on

22 the data. The underlying data is the Corps of

23 Engineers and the Water Management District, and there's

24 no dispute. They worked from the same data base, and we

25 know what he produced over to whoever is going to use this

1 work and tell how it was produced and verify

2 it, we have no problems.

3 We may well be able to stipulate to this if he

4 says it before we do the deposition. If not until

5 afterwards we don't know if we have asked those questions.

6 It would be very unproductive.

7 Based on what has been said, their work is all

8 done, and they could draft that, and we could look at it.

9 We are not adverse tot hat. It's very consistent with

10 what we have been trying to do.

11 MR. EARL: W will prepare, if he wants to go

12 ahead with it, then fine. We'll prepare a stipulation.

13 HEARING OFFICER: Well, but, see, these are the

14 things if we can avoid it, we need to avoid it. We don't

15 have enough time to be taking depositions of people

16 that we can stipulate out or we can reach agreement on.

17 That's exactly what I want to try to do, to

18 streamline the thing.

19 MR. FITZGERALD: I'm not saying I will even have

20 to depose them.

21 HEARING OFFICER: Let's see, the witnesses that

22 fall within this category, let's see if we can reach some

23 sort of consensus or stipulation as to the authenticity

24 of the reports, whatever they are, and avoid the need to

25 both depose them and to call them as witnesses at the

1 hearing.

2 It may be that we can't, but at least we should

3 flush out those that we can. Maybe we can eliminate

4 a lot of discovery effort and hearing time.

5 MR. EARL: Numbers 3 and 4, Mr. Rackley and

6 Mr. Walter Parker, we have eliminated one other standing

7 witness there, their standing and impacts on the

8 industry.

9 Mr. Parker is also, and Mr. Rackley also talks

10 about some practices, agricultural practices out in the

11 EAA, but if we can stipulate to standing we would be

12 able to narrow substantially the scope of their direct

13 testimony and perhaps even eliminate one of them.

14 HEARING OFFICER: Okay.

15 MS. PONZOLI: We would like a joint stipulation,

16 because we will have to put some people on for other

17 purposes, and they will have to testify to those.

18 As to the mutual stipulation to standing, I don't

19 see that should be a problem.

20 it's sounding like there may be some other things.

21 I will have to see. I depends on what Mr. Earl puts in

22 as he considers standing.

23 If it will prove a substantial portion of his

24 case and I don't agree, then I can't stipulate. I

25 have to see it.

1 HEARING OFFICER: I understand. I'm trying to

2 figure out where we are. Are you suggesting perhaps we

3 can stipulate to certain legal issues regarding standing

4 can d perhaps factual issues?

5 MR. EARL: Yes, sir.

6 HEARING OFFICER: And therefore eliminate these

7 from discovery and from trial?

8 MR. EARL: Mr. Rackley has already been deposed.

9 I believe Mr Parker was deposed. We could eliminate

10 their standing testimony. At least one of those gentlemen

11 needs to testify about agricultural practices.

12 HEARING OFFICER: BMPS?

13 MR. EARL: Topographic practices, how they do those.

14 HEARING OFFICER: Okay.

15 MR. EARL: But standing, and we will be able to

16 stipulate standing to the U. S. mutually.

17 HEARING OFFICER: see if you can draft up a

18 stipulation, and if there are problems we can come

19 back and revisit them.

20 All right. What about in terms of, is it Rackley

21 in terms of cultivation practices?

22 MR. EARL: More likely Mr. Parker with U. S. Sugar.

23 HEARING OFFICER: Was he deposed?

24 MR. EARL: It's not my recollection.

25 MS. PONZOLI: I don't know.

1 MR. KOBELINSKI: Mr. Rackley has been deposed.

2 MS. PONZOLI: Okay. Well, I don't know.

3 HEARING OFFICER: All right, so is there dispute

4 as to whether or not he should be allowed to testify on

5 the agricultural practice?

6 MS. PONZOLI: I don't know. I think he needs to

7 tell me more specifically, albeit in writing better,

8 what issues this man can address.

9 If he's saying certain things, we don't need to

10 bring a witness all the way up here to tell you what

11 everyone understands is true.

12 MR. FITZGERALD: I don't think anybody fell off the

13 turnip truck. We all know what's going on.

14 People can get over-reaching in the stipulations,

15 and they tend to go beyond what was originally said.

16 We need to put it in writing.

17 HEARING OFFICER: If I'm understanding Mr. Earl

18 correctly, you're saying you need Rackley without a

19 stipulation?

20 MR. EARL: We need Mr. Parker for something beyond

21 standing, but if we get a standing stipulation we can

22 eliminate much of the testimony.

23 HEARING OFFICER: Try to come up with a stipulation

24 to that effect, sese if you can do that.

25 MS. PONZOLI: That's fine.

1 HEARING OFFICER: Prior to the February 4th date we

2 talked about before. Maybe we can eliminate these

3 people.

4 MR. PERKO: A couple of people on our list, our

5 portion of the list, fall into this category.

6 Numbers 30 through 32, Wedworth, Roth and Stein,

7 are standing witnesses.

8 I don't have the authority to go with the standing

9 stipulation. We would consider it.

10 Numbers 33 and 34 are BMP, farm practice, witnesses.

11 We have identified those as John Hundley and Robert

12 Underbruck. We do intend to have those individuals

13 tell you what' been going on in the farms.

14 HEARING OFFICER: Okay, and certainly I understand

15 there may be some benefit to having some witnesses live

16 to put things in perspective and all that, and what

17 we're trying to do is figure out if we can narrow discovery

18 efforts and also narrow the trial time, so I would hope

19 that you could sit down and give some thoughts to those,

20 discuss them with the proponents of the plan, and see

21 if you can come up with stipulations that may obviate

22 the need for extensive testimony, and make sure that

23 they understand what it is that these witnesses are

24 going to be called for.

25 If that can be set forth in writing it may be you

100

1 can avoid deposing the witnesses.

2 As I have said several times, you don't have to

3 depose everybody and his brother, and some of these

4 witnesses, as long as there's a clear identification as

5 to the areas that they're going to testify to and what

6 their testimony is going to be, they may waive their

7 right to depose them and save some time in discovery.

8 MR. FITZGERALD: Having done the depositions very

9 early on of Missimer an Horvath, 25 and 26 on

10 League List 2, and having been represented from counsel

11 they have done nothing further since then, to the

12 extent that they think they are still witnesses on

13 something they may be good candidates for a stipulation,

14 too.

15 MR. PERKO: Mr. Menton, 24 through 29, Leistritz,

16 Missimer, Horvath, Cole, Herbert, and Haith, Mr.

17 Fitzgerald is correct. We have represented they have done

18 no additional work since they have been deposed. We

19 do no plan to call them as part of the affirmative

20 case. It would be of a rebuttal nature.

21 We simply listed these to give notice that, you

22 know, there may be a possibility we will call them as

23 witnesses, if we learn something through discovery

24 we need to address at trial.

25 At this time we don't plan to do that, but we

101

1 haven't finalized it until we get to the heart of the

2 case.

3 MR. FITZGERALD: Mr. Hearing Officer, I detect an

4 inconsistency here. I'm sure it's inadvertent.

5 I heard Mr. Green and Ms. Raepple this morning say

6 Cole and Herbert, 27 and 28, were photogrametric

7 experts, talking about the vegetation in the entry

8 stations that I deposed them on in December, '92, and

9 the have done nothing further.

10 If they haven't done anything and hadn't produced

11 anything, collected a ream of photos from all over or a

12 lot of sources in the Everglades are, are they on the

13 list? Didn't they tell us they were for the satellite

14 images?

15 MR. PERKO: At this time we do not intend to call

16 Dr. Herbert or Mr. Cole.

17 HEARING OFFICER: Let's start on List 3, people that,

18 you know, I want them disclosed, but they will not be

19 able to be called as witnesses until you come forward and

20 show me why they have to be called.

21 MR. FITZGERALD: Based on that I can't depose

22 them. What do I look for? "Will you have opinions some

23 day?"

24 HEARING OFFICER: He's saying as a result of

25 things they may learn during discovery they may have to

102

1 recall them.

2 What I'm telling him is if you reach that conclusion

3 you are going to have to recall them, you need to tell

4 him and come back to me if you can't work it out, and

5 we'll decide whether we need to add them or not.

6 We're not going, what I'm saying is we will put

7 them on another list. They are not going to be called

8 as witnesses until you decide you need them and try to work

9 it out with him and can't do it. Then I'll listen to why

10 they need to be added back on.

11 MR. PERKO: That's acceptable.

12 MS. PONZOLI: Mr. Menton, I need to tell you something

13 the United States feels at a real disadvantage on.

14 We went about his exercise very, very differently,

15 and so if other parties will be allowed to have these

16 extensive other opportunities to call people, we went

17 through a gutwrenching exercise of eliminating people,

18 and I may have to come back to you and say, "Here's

19 my third list," because I can't be at this terrible

20 disadvantage that I cannot call anyone who was not on

21 some list before the Hearing Officer.

22 HEARING OFFICER: Well, and I'm not intending to

23 create more problems than we're solving here, which is

24 what I'm afraid we're doing.

25 MR. PERKO: I think Ms. Ponzoli is correct that we

103

1 went about it in different ways.

2 We erred on the side of caution, listing everyone

3 we could conceivable call, even through we don't think

4 we will call them.

5 If the United States comes back and they need

6 someone else and has good cause, the same thing

7 applies.

8 HEARING OFFICER: That's what I was going to say.

9 I think the best way for me to deal with that is to say

10 what I want to do is take them off as someone who's not

11 going to be called unless someone demonstrates to me

12 that they need to be.

13 One of the factors that I'm going to consider in

14 determining whether I'm going to let that person testify

15 will be whether they were previously disclosed,

16 whether they have been deposed, whether they are relating

17 to new areas.

18 There will be a number of factors that I will take

19 into account, but I'm not going to preclude that from

20 either side, but I want to get to a point where we can

21 say, "These guys are off the list for now," and I

22 appreciate the fact you have disclosed them as maybe

23 somebody who may have to come back, and as soon as you

24 determine that you need to use them you'd better bring

25 it up real fast.

104

1 MR. PERKO: Will do.

2 HEARING OFFICER: We'll try to do that, work it

3 out.

4 MR. PERKO: Will do.

5 MR. NETTLETON: Mr. Hearing Officer, in the

6 exercise that we performed on our side of the room we

7 essentially eliminated a lot of the foundation witnesses,

8 because we thought we had to get down to 30, which is

9 what we understood your ruling to be, and I would

10 express the same concern.

11 If they are going to be challenging some of the

12 foundations for some of our experts' testimony, then we

13 will need the right to bring on rebuttal witnesses back.

14 They are all disclosed in our previous list.

15 HEARING OFFICER: I think these kinds of issues

16 hopefully we can get resolved on or before the

17 February 11th conference, because during that process

18 I expect both parties to begin to get more specific in

19 terms of what witnesses are going to be testifying to and

20 also in terms of coming to specific stipulations.

21 Just as Mr. Earl is going to be preparing a list

22 of stipulations in an attempt to eliminate foundation

23 witnesses, you likewise would be doing the same, so that

24 you can exchange those in time for the February 11th

25 conference, and if you've got a problem that they won't

105

1 stipulate to certain aspects and you have to go back and

2 add somebody, we can take that up then and see.

3 But hopefully everybody is going to be able to

4 stipulate to some just noncontested authenticity

5 matters and things of that nature, so we don't have to

6 waste a lot of time on that.

7 Is that what you're saying?

8 MR. NETTLETON: I think it may go beyond that.

9 It's more than just whether the document is authentic.

10 We're aware as are petitioners that foundational

11 evidence in the way of such as Jack Jones did some of

12 the underlying work, and the others did underlying work

13 that others can rely on, and if you challenge the

14 underlying work as being inaccurate or invalid then I

15 need the right I guess for us to rebut it with the

16 people who did it. That's why they have them listed.

17 We tried to eliminate them.

18 If that's the case we will need to add them all

19 back on.

20 HEARING OFFICER: These are the issues we need to

21 flush out. You need to figure out if there's a dispute

22 over those things, so that we can flush that out.

23 That's exactly what this is all about.

24 I mean, I'm not trying to say you're not going

25 to have the opportunity to challenge the underlying

106

1 studies, if it's actually in dispute.

2 MR. HYDE: Mr. Menton, I think you are

3 hearing the two sides, proponents and opponents,

4 are not that different, and if in terms of what was

5 anticipated if necessary to disclose at this time, and

6 I think that our intent here is try to get around these

7 tactical objections that might keep an expert from

8 testifying because some other work he relies on was done

9 by some other person.

10 As a practical matter we may want to or some

11 parties may want to challenge the authenticity of this

12 work or to challenge it as to its accuracy.

13 I'm thinking we're trying to get around the

14 technical hearsay type objections, and when people try

15 to challenge underlying work there may be a need to

16 bring in that person to testify as to the other person's

17 work.

18 But if we're just talking about hearsay, why should

19 we have to bring back that kind of witness to testify?

20 That's what I'm trying to accomplish.

21 HEARING OFFICER: I agree, and I hope that's where

22 we're trying to get to.

23 MR. EARL: Mr. menton, if I may, I would ask that

24 they prepare a second list that includes whoever they

25 think they might need, so we can see what it is, and if

107

1 we haven't heard that or you haven't deposed them we

2 need to consider it.

3 They picked the number 30 and argued for it.

4 If that creates problems, we need to have a realistic

5 approach.

6 MR. FITZGERALD: Mr. Hearing Officer, I need to sound

7 a note of caution. Everybody is grumbling over the

8 rebuttal witness issue. A lot of the stipulations

9 we're talking about would be that other group that was

10 not included in 32, in the 30, and that was fact

11 witnesses.

12 Most of what we're talking about stipulating go

13 to fact witnesses, underling factual types, but they

14 have indicated, the petitioners, that they did not

15 include rebuttal witnesses in this first list.

16 We did. I understand there is an element of

17 speculation or anticipation in what you will need to

18 include in the way of rebuttal before you have heard the

19 testimony, but we made that effort, which as Mr. Nettleton

20 point out was not easy.

21 It was very divisive, and I'm sure it was not

22 any easier over there, you know, to come up with 32

23 experts for their case in chief.

24 But this group is subject to massive opening

25 based on claims of, "Oh, I'm only rebutting."

108

1 HEARING OFFICER: It's not subject to that, I can

2 tell you that right now, because I will take a very

3 strict view of that.

4 I have already indicated that I wanted witnesses that

5 were known, whether you would classify them as rebuttal

6 or whatever, to be disclosed and put on the discovery

7 schedule.

8 I don't know exactly what the position is on the

9 rebuttal thing, and I don't know if we are getting ahead

10 of ourselves or not, but let's complete the list, and

11 we can come back and talk about that a little further and

12 make sure everybody understands it.

13 MR. EARL: Number 9 and 10, Mr. Menton, Dr. LeFohn

14 and Dr. Krupa, we proposed another stipulation here, and

15 that is those gentlemen both deal with phosphorus and

16 precipitation, dryfall, rainfall, how much phosphorus

17 loading into the system comes out of the rainfall.

18 If we can get a stipulation that they are going

19 to rely on the phosphorus rainfall numbers,

20 precipitation numbers in the SWIM plan, we don't need

21 Dr. LeFohn and Dr. Krupa.

22 As yet we haven't gotten a response. It would be

23 a way to if all the parties stipulate to the phosphorus

24 precipitation numbers in the SWIM plan, which are their

25 numbers, we won't have a problem.

109

1 MS. PONZOLI: I think Mr. Earl is aware of the

2 problem that it is enormously conservative, that number,

3 and that when you start making value judgments as to how

4 phosphorus budgets are done you will certainly hear at

5 trial that many experts believe that is a tremendously

6 conservative number, probably very high for what the

7 content is, so his stipulation really means we would

8 not be able to set, tell you how conservative that

9 number is, and we can't stipulate to that.

10 I can offer him stipulations he can't stipulate to

11 also. It's not a hard task. So it's not a possible

12 stipulation.

13 MR. EARL: We need those witnesses. They are

14 apparently going to attack the numbers in the SWIM plan.

15 MS. PONZOLI: No, that's not what I'm saying.

16 I'm saying something very different.

17 HEARING OFFICER: But he wants to have an opportunity

18 to put on his version of what those numbers mean, and

19 I don't see a problem with that. I mean...

20 MR. NETTLETON: It sounds like they are putting on

21 experts to support the SWIM plan numbers.

22 MR. FITZGERALD: No, it sounds par for the course

23 in this case.

24 MS. PONZOLI: Let's move beyond those. They have

25 been revealed. They have been deposed. Those two are

110

1 probably known people. Those are not just, they are

2 not the most objectionable on the list.

3 HEARING OFFICER: Okay. Then let's move on.

4 Next group?

5 Just so everybody is clear, when I said move on,

6 it doesn't mean that I am asking, I'm assuming it means

7 they have moved to List 1 and now on the left, and

8 they are potential witnesses that can be called by the

9 District.

10 Is that, I mean, by the petitioners...

11 MR. NETTLETON: I was in fact wondering that

12 myself, Mr. Hearing Officer, what exercise we were

13 going through here.

14 If as you indicated I think two weeks ago if

15 you didn't get them on the first 30 and you had a

16 second list to justify why they are there, if that's

17 what the exercise is, at least I understand what we're

18 doing.

19 HEARING OFFICER: That's what I want to make sure

20 everybody is operating from, the same presumptions.

21 and that's what I intend this process to be.

22 I don't know whether there is any question

23 regarding the first 32 that are listed there as to

24 whether they are essential or whether if we're going

25 to take LeFohn and Krupa then that means we should go

111

1 back and eliminate some form their 32 list, if

2 that's possible, nor not.

3 MS. PONZOLI: We support that position.

4 HEARING OFFICER: I mean, if that's what your

5 argument is, I want to hear what your position is on

6 that.

7 As I indicated, the 30 was not cast in stone.

8 MS. PONZOLI: Right. We understood that. I think

9 we would argue that they are generic people. You

10 should strike them.

11 The historian that they cannot as we sit here today

12 name, it should be stricken. The chemical treatment

13 expert that they cannot give us from the company, which

14 person, we would move to strike that one.

15 People such as the water quality peer reviewer.

16 Have we been given the name? No. We would move to

17 strike that one.

18 Obviously the United States objects to Downing and

19 Lodge on the entry issue.

20 I mean, you could get theirs back to 30 and put

21 LeFohn and Krupa on. They could do it.

22 I think we have a consistent position. They have

23 not gone through the discipline of getting this

24 down. There are ways to get it down, and we agree

25 with some of the ways.

112

1 We agree with the standing stipulations in general.

2 It sounds like a very good idea.

3 We agree with joint stipulations if we can as

4 to authenticity. That's one way to get it down.

5 I frankly don't doubt if someone needs a witness

6 you will let them bring them. I accept that. I think

7 it's fair.

8 HEARING OFFICER: In terms of the first list, the

9 people that are not already identified, we've got 15,

10 water quality peer review, 19, chemical treatment

11 experts, 30, mercury experts, 31, mercury/fish sampler,

12 and 32, Everglades historian.

13 MR. PERKO: Numbers 30 and 31 we have identified,

14 Bill Landing, water quality sampling, and we have

15 identified 31. The name is Michael Whitten.

16 We talked about the fish samples of mercury.

17 These two witnesses are foundational type witnesses

18 that we may be able to eliminate. I haven't seen that

19 data. It's still being collected, or it may be over

20 now, but the ENR entry is still ongoing or may just have

21 been completed.

22 I listed those thinking we may have problems getting

23 the data in. That's the reason.

24 But we have specified the names of those

25 individuals.

113

1 HEARING OFFICER: What about the Everglades

2 historian and the chemical treatment expert? We have

3 a couple of individuals. When will the individual be

4 identified, and is there any problem in getting that

5 within the discovery schedule?

6 MR. EARL: Your Honor, I can speak, Mr. Menton, to

7 the chemical expert. Metcalf and Eddie. They have

8 been identified. I don't know the individual's name.

9 I will find it out and convey that Monday.

10 HEARING OFFICER: What about the water quality

11 peer review.

12 MR. EARL: The water quality peer review is what

13 I mentioned to you at the beginning.

14 Our consultants, experts in reviewing the

15 other side's list tell us we need to have a limnologist,

16 a water chemistry person, able to respond to some of

17 the experts that they have listed.

18 We have been diligently searching the country.

19 It's going on right now as we sit here, interviewing

20 people, talking to universities.

21 We haven't identified that person yet. We need that

22 person very much as part of our case in chief, and

23 we will have identified that person by the pretrial,

24 I will commit to you, or we won't use him.

25 HEARING OFFICER: You will have to find him, and he

114

1 will have to get up to speed and be deposed. How

2 are we going to do that?

3 MR. EARL: We will have him ready. He will not do

4 any field work. He will review what other people have

5 done, the other side, their depositions and testify

6 about that. He will review what they are doing and

7 then give us opinions and analyses.

8 HEARING OFFICER: Okay. Have him identified by

9 January 28th.

10 MR. PERKO: Mr Menton, the historian, we are in

11 a similar situation. We're trying to identify that

12 individual. We are pursing some individuals we believe

13 have first-hand knowledge of he Everglades. We may

14 have them review documents, but we can bring them up to

15 speed. I would suggest we have until January 28th to

16 identify him as well.

17 That will be factual type testimony and would not

18 be extensive scientific analysis.

19 HEARING OFFICER: Okay.

20 MR. PERKO: This information is generally known to

21 everyone. We feel it would be more efficient to have a

22 live person going through the chronology of the

23 Everglades rather than submitting 30-year-old reports

24 and so forth.

25 HEARING OFFICER: Have him identified by January 28th.

115

1 A lot of that stuff can probably be done by stipulation.

2 Give consideration to that.

3 MR. HOFFMAN: We have a call in to Marjory Stoneman

4 Douglas on the issue.

5 (LAUGHTER.)

6 MR. NETTLETON: We don't object to them having her,

7 I think, on the witnesses list.

8 MR. FITZGERALD: I will stipulate on that.

9 MR. HOFFMAN: If I get her I'll contact the

10 Hearing Officer immediately.

11 HEARING OFFICER: Any other issues on the first

12 list?

13 MR. NETTLETON: Mr. Hearing Officer, it think we

14 lost sight of my original motion. It wasn't, it's not,

15 part of it dealt with the fact some were not identified,

16 and we have resolved that, and I could live with you

17 ruling to the extent that I get a clear understanding.

18 I had moved to strike new witnesses, except

19 Carlos Marin and Wl L. Li, which I heard justification

20 for.

21 Marin has been deposed on and off. We don't know

22 what he's going to testify about, but he is known, and

23 Li is a substitute. So I believe I can accept the

24 scientific part, but at this late date I think it

25 prejudices our client to deal with new witnesses and new

116

1 issues that have been in the case from day one, and

2 that was my original motion.

3 HEARING OFFICER: Who are we talking about in

4 that regard?

5 MR. NETTLETON: Frank Coale, Co Van De Kreeke, Ed

6 Downing.

7 HEARING OFFICER: Numbers?

8 MR. NETTLETON: Numbers 11, 13, 22, 23, 30, with

9 Bill Landing, 29, Mike Maceina, and the second list, 23...

10 HEARING OFFICER: You said 30, and then what did

11 you say?

12 MR. NETTLETON: Twenty-nine.

13 HEARING OFFICER: Twenty-nine is the one you said

14 okay on?

15 MR. NETTLETON: No, I'm sorry. Twenty-nine and

16 30 are both new. We object to those.

17 Then on the second list, 23, Craig Erickson.

18 And either 33 or 34, I don't know why we have two

19 people testifying on the same thing, but they have

20 identified those people now. One was John Hundley,

21 who was on the list before, so I would withdraw my

22 objection, but there is a new witness designated for the

23 identical testimony. We would object to that.

24 And also with regard to the essentially new people

25 that are generic that we have heard their names now,

117

1 but they are falling within the same category, all

2 generic ones. New witnesses.

3 HEARING OFFICER: You are saying water quality, peer

4 review, and all those things we just talked about

5 don't fit within the category of witnesses previously?

6 I know there were some generically identified

7 witnesses on the witness list, and I don't know if they

8 fall within that category or not.

9 MR. FITZGERALD: For example, the Everglades

10 historian. That has never been identified as a generic

11 category. There is a document by Mr. Waller addressing

12 the area, but very simply there is no justification for

13 identifying the Everglades historian as somebody who

14 might want to be put on two years after their petitions

15 were filed.

16 We are waiting for it, especially somebody with

17 the company identified.

18 HEARING OFFICER: Okay. Let's talk about the

19 newly identified people and see what the deal is here.

20 Frank Coale is number one?

21 MR. EARL: Franke Coale is the individual I

22 mentioned earlier in the hearing.

23 HEARING OFFICER: Somebody needs to turn their

24 microphone off if you're going to talk in the background

25 here.

118

1 MS. PONZOLI: It sounds like it might be

2 Ms. Boyd. She may not realize the speaker is working.

3 That's what I think is happening. I think she thought

4 they were mute, and now they're not.

5 HEARING OFFICER: Go ahead, Mr. Earl.

6 MR. EARL: Frank Coale is someone we just

7 identified. He's formerly with IFAAS. He was at the Belle

8 Glade agricultural research station. We located him

9 now at the University of Maryland. We located him last

10 week in the middle of a snowstorm in Maryland.

11 He is, they have listed Del Bottcher as an expert

12 in BMPS. Mr. Coale worked with Mr. Bottcher and

13 questioned some of his conclusions their BMP expert

14 comes to.

15 We did not know he was available. As I told you,

16 the University of Florida IFFAAS, has refused to consult

17 with us on this, to testify unless they're subpoenaed.

18 They will not cooperate.

19 We have now found someone outside of the state who

20 doesn't have that pressure, and he is available.

21 Mr. Coale, that's what he's there for.

22 He's essential if we're going to identify what's

23 going on in terms of things like soil subsidence and

24 management practices and agriculture in the EAA and also

25 to counter whatever Mr. Bottcher testifies to.

119

1 HEARING OFFICER: Okay.

2 MR. NETTLETON: Mr. Hearing Officer, I think this

3 is the greatest example and it ties into what I want

4 to talk about on the prehearing conference when we

5 get to that.

6 BMPS, I don't know if they are in or out, and

7 it's also interesting to hear that IFAAS has indicated

8 they will not testify because they say the same thing

9 to us, because they are funded by agriculture.

10 We don't have any IFAAS people on our list. Mr. Bottcher

11 is no longer with IFAAS. He is now an independent

12 consultant as well, I believe.

13 MR. EARL: I didn't realize that. That's news.

14 MR. NETTLETON: But in any event if BMPS are in

15 this case, and I have a serious question I'd like to

16 raise, if they are still in the case they have

17 certainly been there from day one. They had people

18 listed on the first witness list as experts.

19 I have deposed at least one of them and some

20 other people in my firm have deposed others. They had

21 people there for this. They are bringing in someone

22 new, and that's prejudicial. They already have

23 witnesses listed, and they should stick with those

24 witnesses.

25 HEARING OFFICER: Okay. Mr. Earl, why, how did you

120

1 get wind of Mr. Coale? Why wasn't he listed earlier?

2 MR. EARL: We stared looking, we have been looking

3 for a BMP expert a long time. We interviewed

4 Gillian, and he was tied up. We can't get the IFAAS

5 people, and they are the experts in Florida.

6 We tried to get Mr. Gillian at North Carolina State.

7 He was unavailable.

8 We then went to the University of Arkansas.

9 It's a long story. We have been diligently looking for

10 someone to testify.

11 We literally found him, one of my partners found

12 him in a snowstorm last week in Maryland, and we

13 finally found Mr. Coale. We need him. He's essential.

14 He has EAA experience.

15 HEARING OFFICER: So you're saying that, just to

16 answer Mr. Nettleton's questions, BMPs are back in the

17 case?

18 MR. EARL: As I said before, hits testimony is more

19 than BMPS. It's soil subsidence, agricultural practices,

20 whatever Mr. Bottcher is going to testify about. He

21 worked with Mr. Bottcher. It's broader than BMPs, but

22 they may well be back in the case.

23 MS. PONZOLI: I'd like to raise an issue Mr.

24 Hearing Officer. Mr. Coale is not the first former,

25 unhappy employee who appears in the 30.

121

1 Mr. Maceina, Dr. Maceina fell into that category

2 as a former employee of the Water Management District,

3 and I think that that sits very hard with the people on

4 this side of the room, that it would appear petitioners

5 are seeking out these types of individuals and bringing

6 them in to testify against the agency where they may

7 have had an unhappy falling out.

8 MR. EARL: I just want to correct one thing so it's

9 on the record.

10 No one ever said that Mr. Coale, I had no

11 information that he ever said he was unhappy at IFAAS.

12 That's not true.

13 MS. PONZOLI: He's just unhappy with Mr. Bottcher's

14 work?

15 MR. EARL: He was there. He may disagree with some

16 of Mr. Bottcher's work, but he's not unhappy with IFAAS.

17 That's a misstatement.

18 MR. PERKO: Your Honor, I have the same objection

19 as to Mr. Maceina. I have no indication of that.

20 I'm prepared to address it.

21 HEARING OFFICER: No, I mean, these are issues

22 we can take up at the hearing, not today.

23 In terms of Mr. Coale, I'm going to allow him.

24 We'll go ahead with him. Let's go along. Van De Kreeke?

25 MR. EARL: He's an expert in hydrologic modeling.

122

1 He has been asked to look at modeling, water flows,

2 water flows relating to the project, how the project

3 has impacted certain areas, and my recollection, and I

4 will look, I do not have the files in front of me, maybe

5 someone else does, my recollection was it got on the

6 earlier list, the generic thing, I may be wrong, but

7 we had something generic, like hydrologist. I don't

8 know that.

9 MR. KOBELINSKI: Mr. Hearing Officer, this is

10 Mark Kobelinski.

11 I would just point out for Mr. Earl we had about

12 five hydrologic modelers, including those which we have

13 attempted to narrow down. We have dropped and pared the

14 list repeatedly, and we now have one witness which is

15 going to cover all areas that we previously had about

16 four or five witnesses listed for. So it's not an

17 addition. It's actually a narrowing, if anything.

18 MR. NETTLETON: Mr. Hearing Officer, that may be,

19 as commendable as it may sound, the three or four others

20 that we knew about a year and a half ago, and this one

21 we did not.

22 HEARING OFFICER: Have you deposed any of the

23 other ones?

24 MR. EARL: No.

25 MR. NETTLETON: I don't recall.

123

1 MR. FITZGERALD: Some were set for deposition,

2 Mr. Hearing Officer, and because of the intervention of

3 the stay or otherwise they were not deposed, but the

4 League, they were also, my recollection was they were,

5 Mangarella has been pulled as a witness.

6 MR. KOBELINSKI: We have been all along attempting

7 to narrow this down.

8 MR. FITZGERALD: That's why he never ended up getting

9 deposed.

10 I would have to hear the names of the others or go

11 through the old list to see why they were not deposed,

12 but we had put on to depose a number. We did literature

13 searches and were in a position to go forward on them.

14 MR. NETTLETON: I might also add when these were

15 pulled and we advised they would not be called as

16 witnesses, we were not advised someone else was going

17 to be coming in to do it, someone yet to be named.

18 My objections just to maybe shorten this

19 exercise, my objection is the same to all of them, and

20 that is just late disclosure.

21 Under the previous scheduling order we had five

22 months to file disclosure. We are three months to

23 trial now.

24 I think everyone has disclosed the people they

25 expected to call by July before that last stay went into

124

1 effect, and it's my position we have been prejudiced by

2 the adding at this time.

3 HEARING OFFICER: Well, I mean, this whole process

4 is not easy for anyone. I mean, we have had long gaps

5 of time between when we originally thought we were going

6 to go to hearing.

7 There has been a number of intervening events.

8 I am concerned about adding new witnesses, and

9 that's why we are going through here.

10 I'm not going to just allow that to happen

11 because somebody wants it to happen, but on the other

12 hand we have to be, I have to be somewhat sympathetic

13 to the realities of the situation.

14 If there has been an expert in this particular area

15 or several experts that have been deposed and for

16 whatever reason they didn't like the way the deposition

17 went and wanted to substitute somebody else, you know,

18 then I'm not going to have a lot of tolerance for

19 that, but on the other hand if for whatever reason they

20 decide they're going to use one expert rather than

21 somebody else and there hasn't been considerable effort

22 expended on depositions, then I'm going to allow them

23 to substitute witnesses like that, and the same for you.

24 I mean, I just want to make sure that there, I mean,

25 if I knock out Van De kreeke, add somebody from the

125

1 original witness list and we'll have to depose him

2 anyway, and he'll have another witness to address one

3 of the same issues, so I don't think we accomplish

4 anything.

5 What I want to do is make sure we have narrowed this

6 down as much as possible and have no unnecessary

7 duplication, and we don't have any surprises.

8 I think you're right. We are getting close to

9 hearing. I don't want to see new witnesses come in

10 unnecessarily, but we still have time to accommodate

11 them within the discovery schedule and give you an

12 opportunity to learn what they have to say prior to the

13 hearing.

14 MR. NETTLETON: Mr. Hearing Officer, I'm not in a

15 position at this point to suggest that the petitioners

16 have pulled any particular witnesses and are substituting

17 anybody because they didn't like the deposition

18 testimony. I don't know that that's not the case, but

19 I'm not suggesting that.

20 That's not what I'm representing. I'm just trying to

21 streamline this. I just want to let you know that

22 was my entire objection, was just the last disclosure.

23 HEARING OFFICER: Okay. Well, late disclosure

24 in and of itself isn't going to keep me from or isn't

25 going to lead to them being precluded from calling

126

1 witnesses unless you can show me some other grounds,

2 at least at this point where we're trying to finalize

3 this list and set up a discovery schedule, simply

4 late disclosure isn't enough. It is a factor I will

5 consider, but I want to hear additional justification

6 before I will preclude them from calling a particular

7 witness.

8 MR. NETTLETON: The only other justification I

9 would offer, Mr. Hearing Officer, is the fact that

10 I think those witnesses will testify in areas that have

11 been known from day one. That's why I'm saying it's a

12 combination of the late disclosure...

13 HEARING OFFICER: Well, I agree with that, but

14 with the Van De Kreeke they have had a witness or

15 witnesses in that area, and they have eliminated several

16 of them and tried to pare it down to just him, so in that

17 regard that's what this whole effort is supposed to

18 be about, to try to pare down witnesses, and you no

19 longer have to go back and depose the four they have

20 previously listed.

21 Okay. Any of these other new guys, Downing,

22 Lodge, chemical expert? Same thing?

23 MR. NETTLETON: Yes.

24 HEARING OFFICER: Okay. He will be identified by

25 Monday?

127

1 MR. EARL: Yes, sir.

2 HEARING OFFICER: The water quality peer review is

3 going to be identified by January 28th. Everglades

4 historian by January 28th.

5 Now I didn't know about on the second list. Any

6 other particular witnesses we need to discuss on that?

7 MR. NETTLETON: Same issue.

8 MR. KILLINGER: Your Honor, I think there may be one,

9 I think it's number 30, Dan Thompson as a witness who they

10 may try to call.

11 I have had discussions with opposing counsel about

12 my reservations of having Mr. Thompson be a witness at

13 all.

14 When I asked what they wanted to depose him on I

15 was told on what was the high level policy decisions

16 that were made.

17 When all this was happening Mr. Thompson was

18 General Counsel for the Department. I can argue my

19 motion for protective order.

20 That's sort of ongoing debate about the

21 appropriateness of deposing Mr. Thompson or having him as

22 a witness, and it has not been resolved yet to my

23 satisfaction. I feel like I ought to speak up about

24 it on the witness list in any form.

25 MR. HYDE: Just a brief rejoinder to that, I can

128

1 recall from one we have deposed, Mr. Harvey on behalf of

2 the Department, he in effect kicked an important

3 policy decision up to Mr. Thompson, so if we can get

4 some satisfaction on that score that would address it.

5 But that's still a compelling reason why on the

6 record we would need to talk to Mr. Thompson, and there

7 may be others as well.

8 MR. PERKO: We have indications Mr. Thompson and

9 Ms. Browner made key policy decisions. If we can't

10 have mr. Thompson we need to get Ms. Browner.

11 MR. KILLINGER: I also have questions about how

12 they intend to compel appearance by Mr. Thompson if the

13 hearing is in West Palm Beach, if it is, given the

14 distance, if he is an expert witness for any of these,

15 because we haven't decided where it is.

16 MR. FITZGERALD: The United States would have to

17 join that. Ms. Browner I snow Director of the EPA

18 where the concept of even a deposition witness I submit

19 it doesn't run from this tribunal to Washington, D.C.,

20 to take depositions.

21 HEARING OFFICER: I don't know if these issues

22 have been addressed in the discovery planning process or

23 not. I assume the schedule has been essentially worked

24 out.

25 If there are witnesses who there is dispute over,

129

1 and then I think we may need to go the protective

2 order route if they are noticed for deposition.

3 MR. KILLINGER: That's what I am saying. I have

4 requested they send me the depositions so I can see what

5 they want, and I'll file my objection to it.

6 I just wanted to bring it up here, because the

7 opening presents itself. I'm not sure it's appropriate

8 to do it.

9 MR. PERKO: We agreed to do that.

10 MR. FITZGERALD: Mr. Hearing Officer, on the

11 second list, witness number 22, Dr. Ken Reckhow from

12 the institution of higher learning in Durham, he was

13 originally listed. The League dropped him. The Coop

14 has him listed, but now he shows up. I don't know

15 whose witness...

16 MR. PERKO: Our witness.

17 MR. FITZGERALD: We were told I believe, we have

18 him scheduled for depo very early, a concluding

19 deposition. Mr. Nettleton's Paul started him some time

20 back, and we didn't get very far. We didn't get to the

21 substance.

22 But he did tell us at that time that based on the area

23 of testimony for him he would not know anything

24 until three years down the line, when a graduate student

25 finished working on his Doctoral thesis.

130

1 MR. PERKO: I wasn't at the deposition, but

2 I can tell you that Dr. Reckhow performed statistical

3 modeling for this annual data, based on wetland

4 treatment systems, developed final opinions regarding it,

5 and is prepared to testify regarding the modeling.

6 The reasons we had him on List 2 is because we had

7 not gotten to Dr. Kadlec, the key witness of the federal

8 government, who we had gotten indications may or may not

9 be relying on that data base in support of the notion

10 they will achieve their design goals.

11 Now that's why he's on List 2, because I don't

12 know if the North American data base is being

13 brought forth in support of this SWIM plan. Until I

14 get there, I will not know that.

15 Dr. Reckow has performed it and is ready. I should

16 note we have been unable to contact Dr. Reckow to

17 confirm his deposition that week, but we should be

18 able, he should be available and willing at that time.

19 HEARING OFFICER: I'll go up there and take it.

20 MR. PERKO: I was going to say I went to the other

21 school down the road.

22 MR. FITZGERALD: So did Mr. Nettleton's partner, who's

23 checking the basketball schedules. We will see what

24 he has done.

25 HEARING OFFICER: Okay. So you will add him to the

131

1 discovery schedule?

2 MR. FITZGERALD: He's on the discovery schedule.

3 HEARING OFFICER: Okay.

4 MR. KOBELINSKI: Mr. Hearing Officer, pardon me,

5 This is Mark Kobelinski.

6 There is one last witness, a new witness we have

7 just heard of from the United States, and that's Janet

8 Llewellyn. We'd like to know what she's on the list

9 for.

10 MR. KILLINGER: Mark, she's my witness, and I

11 talked to you all about this before the stay went into

12 effect. I contemplated adding her.

13 She is the supervisor for Marlene Stern, and I

14 thought it might be preferable to have her instead of

15 Marlene. I had Marlene previously.

16 You have already deposed Marlene. I think it's

17 sort of sox of one and a half a dozen of the other.

18 We put her on the second list but not Marlene,

19 because I was trying to limit it down to a minimum

20 number available, and we could discuss whether you will

21 have a problem with the substitution or whether you

22 want to take her deposition or what.

23 I thought she was in a supervisory capacity, and

24 you might want her instead, and we might be able to

25 go with her.

132

1 HEARING OFFICER: Any other issues in this case?

2 MR. HOFFMAN: Standing is part of this. What I have

3 head so far as the Fruit and Vegetable Association,

4 if I understand correctly if they can be as to cost

5 and if there are other relevant consideration and there'

6 a stipulation to standing, we would be able to limit

7 those four down to probably one, so that would be some

8 help. They are not on this typed up document, but it's

9 something still hanging.

10 HEARING OFFICER: Okay. That's hopefully as we

11 discussed earlier we can try to resolve the

12 stipulation matters by February 4th and then discuss them

13 again on February 11th, and that will cull out and make

14 sure we don't have any remaining disputes over these

15 standing witnesses and so forth.

16 MS. PONZOLI: Mr. Menton, I have one serious concern,

17 and I would ask that you grant the respondents and the

18 aligned parties in support of the plan until

19 January 28th. If as a result of today's exercise we

20 believe that somehow we can't live with their having an

21 Everglades historian and we don't have one, we would like

22 to reveal by the 28th a historian we would use also.

23 MR. EARL: We have no objection to that. In that

24 same line, Mr. Hearing Officer, I would request and move

25 that you give the respondents and aligned parties a date

133

1 certain to submit any other foundation witnesses.

2 Any other staff witnesses, because we need to know who

3 they are.

4 They said there are some. They may want to

5 stipulate. We'd be happy to stipulate. We need to know

6 who they are.

7 MR. FITZGERALD: Mr. Hearing Officer, this goes

8 directly to the point about the prejudice to the

9 respondents and intervenors.

10 What's being demanded now is we give generic

11 designations or somehow divine what these unknown and

12 undescribed people, undeposed, are going to deal with, so

13 that we can...

14 HEARING OFFICER: I think he's saying that

15 Mr. Nettleton had referred earlier to the fact that he

16 eliminated some witnesses to testify regarding the

17 foundational studies, etcetera, that he may have to

18 call if they can't reach a stipulation.

19 Mr. Earl is saying he'd like to know who those

20 people are.

21 I think the easiest way to deal with that is to

22 have Mr. Nettleton to determine what stipulations he

23 needs, and if he can't get the stipulations he may

24 need some additional foundation witnesses that I want to

25 make sure are disclosed. That's all Mr. Earl is asking.

134

1 MR. NETTLETON: Mr. Hearing Officer, it seems to

2 met that we have taken somewhat of a step backwards,

3 and I'm willing to go forward in this direction.

4 I am suggesting that as I go back that route, we

5 tried to eliminate a lot of those, and maybe we can

6 still eliminate some, but in looking at it, going back

7 through the original witness list, that's why they

8 were there, because they could potentially have been

9 caused.

10 HEARING OFFICER: You might have had a hole in

11 your case, though, if I had limited you to those 30

12 witnesses, and suddenly you found out that they were

13 objecting to some foundational study that you could not

14 authenticate.

15 I man, there's not necessarily a step back. I think

16 what we're trying to do is make sure everybody understands

17 what issues are going to be disputed and what are not.

18 If you need more than 30 witnesses in order to

19 fill in some holes I'll let you have them, but you

20 just need to figure out who those may be and whether

21 you need them or not. That's what I'm telling you to

22 do.

23 MR. NETTLETON: What I would like to do, and I

24 assume it would be the same, would be we would also do a

25 joint stip from our side of the room again. I would like

135

1 to keep the progress we have made, to continue with our

2 list of 30 or so top witnesses, and if you've got

3 additional witnesses for foundational purposes we may or

4 may not be able to stipulate to that they go to a

5 second category list.

6 At least that gives me some feeling we have progress

7 on identifying who their witnesses are at trial.

8 I'm willing to go back and look at my old list

9 and still try to eliminate additional people who maybe

10 are not necessary, but I would back in on my second list

11 and the foundation witnesses we can avoid.

12 HEARING OFFICER: Okay. Well, I mean, we can't

13 avoid them unless we know if you have a stipulation.

14 That's what you have to figure out first, is whether

15 you can get that stipulation.

16 All right. What about the rebuttal witness

17 situation? It sounds like there has been some

18 reservation on the part of the petitioners to disclose

19 the rebuttal witnesses or include them within the witness

20 list, and I want to get a better understanding as to

21 what their problem is.

22 MR. EARL: We have disclosed everyone there is.

23 MS. PERKO: As have we.

24 MR. NETTLETON: The misunderstanding, Mr. Hearing

25 Officer, was that we understood that the list of 30

136

1 was to include rebuttal, and I believe petitioners

2 understood it differently, so rebuttal witnesses were

3 relegated to the second list. It may be moot at this

4 point in light of the developments today.

5 HEARING OFFICER: I think as I said I wanted the

6 rebuttal witnesses to be included and disclosed, and

7 that's the important thing, and whether they are

8 included on List 1 or List 2 doesn't really matter, so

9 long as they are disclosed, and we can cull those out as

10 we can reach stipulations and agreements on certain

11 matters that are no longer in dispute.

12 I think the ont thing I want to make sure everybody

13 understands clearly is I expect rebuttal witnesses to

14 be disclosed. I don't expect them to be held in

15 surprise.

16 Okay. So no dispute on that one.

17 All right. What else do we need to address today?

18 The prehearing conference? I had thrown out some idea.

19 What's the reaction to that?

20 MR. NETTLETON: Mr. Hearing Officer, we have,

21 we object to a requirement that District would be

22 required to go forth and present its case to the other

23 side without the reciprocal requirement on their part.

24 I think you suggested we do an overview of what we intend

25 to show.

137

1 What we will show essentially is that the SWIM

2 plan is in compliance with the statutes. What we put

3 on depends on the issues they are challenging.

4 It's putting the cart before the horse. As

5 Mr. Earl stated, the petitioners frame the issues in

6 this case. That's why we filed the motion, because

7 if you want to talk about moving targets, what is at

8 issue, and what are they challenging in the SWIM plan?

9 As an example, you have head repeatedly all

10 through today about BMPs and BMP witnesses. I want to

11 address that, because I think that's a prime example.

12 The BMP regulatory program, which is one of the

13 two strategies in the SWIM plan along with the STAs,

14 was promulgated by the rule, and the rule has been

15 adopted and has been in place now for a year and a half.

16 Mr. Green's clients challenged it at the time, and

17 it was upheld through the appellate process, and it

18 would be our position there is some legal question of

19 whether that should be part of this case, since the

20 rule is in place and that provides a point of entry.

21 As a secondary matter, I have some question

22 actually procedurally whether petitioners are still

23 pursuing this or how they are pursing it, and that's

24 been one of the difficulties of establishing what our

25 case is going to look like, because we don't know what

138

1 they are putting at issue.

2 Back when the petitions were originally filed,

3 when the challenge was still going on to the rule a

4 year and a half or two years ago, the petitioners had

5 take the position it was a 25 per cent target as

6 unreasonable and they could not attain it, and so on.

7 Since that time they have said they can do better

8 than 25 per cent.

9 I don't know now if they are planning to continue

10 arguing they can't do the 25 per cent, or they're saying,

11 "We can do more than 25 per cent," and, you know, our

12 objections at that time, you should have ignored

13 those and forced on us a rule requiring a 40 per cent,

14 and that's what they are going to try to prove now.

15 Until they establish what the issue is, which is why

16 we requested they be required to present the issues,

17 as they are the petitioners who frame the issues, and

18 we don't know what these will look like, and that's one

19 of the frustrations we have had in developing this list.

20 I can possibly live with simultaneous exchange

21 of issues of fact and law and so forth, and we can

22 give what we understand to be the issues as described,

23 but we can't create the issues.

24 Mr. Earl pointed out, they are the petitioners.

25 They set the issues. If they want to stipulate that we

139

1 can frame the issues for hearing, that's another

2 matter.

3 But if they're going to continue to insist that

4 they get to choose the issues, then they should tell us

5 what they are.

6 If they can't tell us what they are as in their

7 responses until the end of discovery I think that's a

8 complete misuse of this proceeding.

9 Discovery is not supposed to best used to develop

10 factual issues, but to discover relevant evidence to

11 things at issues.

12 120.57 is not a mechanism to do discovery in

13 order to create issues. You are supposed to know

14 what the factual issues are when you come in and

15 petition for a 120 proceeding.

16 If they are not in a position as they have stated

17 in response to tell us what those issues are at this

18 stage, a year and a half into the stage, I submit their

19 petitions are subject to dismissal.

20 I think thy have to state what the issues are in

21 this case before we can move forward.

22 HEARING OFFICER: Well, Mr. Nettleton, let me try to

23 explain to you what prompted the suggestion that I

24 came up with. Really all I'm trying to do is to get

25 both sides to sit down and give a lot of thought about

140

1 how this hearing is going to come about.

2 That's why I asked them to go back at the same

3 time I asked you to come forward with an idea of what

4 your prima facie case may look like. I want them to

5 go back and study their petitions and give it some

6 serious consideration.

7 Mr. Hoffman made some objections and said he would

8 stand on the petition originally filed. As I recall

9 the Fruit and Vegetable Growers' petition it was not as

10 detailed as the petitions that were filed on behalf

11 of some of the other parties.

12 I think at this point in the game everybody needs

13 to have a better idea of exactly what issues are going

14 to be litigated when we get to final hearing.

15 The reason I suggested that the District give

16 some indication as to what their prima facie case is

17 is because I think at this point you need to figure

18 out exactly what that's going to be.

19 We need to get an idea of witnesses you are going to

20 call and what you're going to be offering in terms of

21 the general first phase of this hearing.

22 I'm saying not that I expect you at this point to

23 be responding to all of the things the petitioners have

24 raised in their initial petitions. I want you to sit

25 down and think about how you're going to come in and

141

1 prove as a preliminary matter that you adopted the plan,

2 you adopted a plan that complied with the statue,

3 and what the involved.

4 I'm not asking you to respond in any way to what the

5 petitioners are saying or give me any indication at

6 this point until you get a better feel from them as to

7 exactly what they are going to be challenging. That's

8 why I have asked them on the same date to give the

9 preliminary statement as to how you're going to prove your

10 case in chief. I want them to give me a revised

11 version of their petition, eliminating those issues

12 that can be eliminated, and making it clear exactly what

13 we're going to be fighting.

14 I don't think that's inconsistent in approach with

15 what you're suggesting. I think it's time for everybody

16 to sit down and begin to give some thought as to how

17 this thing is going to come together for hearing

18 purposes, and that applies to the District and the

19 proponents of the plan as well as those who are challenging

20 the plan.

21 There has been a lot of talk at various stages

22 about modifications to the plan, about amendments, or

23 whether we have to go back to a new plan or not. It

24 appears that all those issues have been mooted, but,

25 you know in the meantime I think the District needs to

142

1 give thought as to what they're going to be presenting

2 as the initial thrust of what they did and why the plan

3 complies with the statue and what they did to meet the

4 statutory directives.

5 That's all I'm saying in the first phase, not to

6 respond to anything petitioners have said. That comes

7 later on after we get a more clearly defined statement

8 from the petitioners, which will be done simultaneously.

9 That was my idea and suggestion in making the

10 suggestions that I did.

11 MR. FITZGERALD: What we should expect from the

12 petitioners on that date is a bill of particulars?

13 HEARING OFFICER: What I'm asking them to do by that

14 date is to go back through their potations, eliminate

15 those issues that are no longer in dispute, and

16 more clearly articulate those that they can, and

17 essentially come up with an amended petition and say

18 what we are actually disputing in this case.

19 MR. HYDE: We are working on doing that and

20 have been, and it's been a considerable exercise, but

21 I think it would be a productive exercise.

22 HEARING OFFICER: And hopefully we can eliminate a

23 lot of these issues, and on the same date, and then by

24 that time everyone can sit down and try to sit with the

25 witnesses and come up with a more detailed statement

143

1 of what the disputed issues of policy, law, and fact

2 are and tie the witnesses to that, and that's what this

3 whole prehearing conference will be about on

4 February 11th.

5 MR. HOFFMAN: Can I make a comment? In looking at

6 our petition as I mentioned in my response to the other

7 motion what we have alleged really in response to

8 the plan, we didn't set the issues, but as I go through we

9 asked the question as a question of material fact whether,

10 for instance, it's feasible to collect and treat

11 stormwater to the levels required by the plan.

12 We're questioning what's in the plan. We don't

13 have a new idea.

14 "You said this in the plan, and we question it."

15 We didn't set the questions.

16 The questions were already statements, that this

17 is a fact in this plan, and we questioned whether

18 that was true. We didn't have any new theories.

19 HEARING OFFICER: But you are challenging an

20 amendment, the whole nature of the SWIM plan procedure

21 is to give you an opportunity to present a case in

22 opposition to the proposed agency action, which is

23 the adoption of the plan.

24 They come up and put their proposal out on the

25 table. What I want to get a better feel from them is

144

1 what they will be offering in the first stage of the

2 case in terms of showing me exactly what they did.

3 In the meantime it's up to you to say what

4 aspects of that proposed agency action you disagree with

5 and why you disagree with it. That's why our petition

6 should be all about, and that's where we need to make

7 sure it specifically delineates it, so we know what we'll

8 be fighting on at the final hearing.

9 I don't think you can just, you know raise

10 cavalierly, you know raise questions. I want to know

11 what in particular about that proposed agency action do

12 you disagree with.

13 MR. EARL: Mr. Menton, do we also, do you also

14 expect the Department by the 28th to describe their

15 prima facie case on the permit?

16 HEARING OFFICER: Good question. I had not

17 through about that.

18 MR. NETTLETON: We have never agreed on the burden of

19 proof on the SWIM plan, and I don't know, Mr. Hearing

20 Office, you actually made a ruling as opposed to an order

21 of proof in the sense that we would proceed along the

22 lines that Estuary Properties or the cases cited of how

23 we would present the case, where we would present the

24 plan in context, and they would then attempt to

25 establish the elements through their evidence, and

145

1 we would have a chance to rebut it.

2 That's how I recall it was resolved at that point.

3 There was no determination who actually had the burden

4 of proof on a particular issue of fact. On the

5 permit question clearly it is clearer that we would

6 have the burden as the applicant to establish

7 reasonable assurances.

8 HEARING OFFICER: Under the Young case I'm not

9 quite sure how that would all fit in. I don't know

10 that it would change in this particular instance.

11 I'll have to go back and look at the earlier

12 hearings that we had. I thought at least in my mind, I

13 thought we had resolved those issues. I thought they

14 had been briefed and discussed, and I thought I

15 indicated what my thought processes were on that, and

16 I'll go back and review those.

17 MR. NETTLETON: I will also, Mr. Hearing Officer.

18 I may have misspoken. I thought we were talking

19 in terms of order of proof, and I didn't I know the

20 burden had actually been determined yet. I will go

21 back and check my notes.

22 MR. FITZGERALD: I recall Mr. Hyde addressing

23 that a number of times, as recently as the hearing a

24 month or so ago, saying he was prepared to argue

25 through that again, and that sort of matched my

146

1 recollection, and I contacted Mr. Nettleton. We

2 may really have never nailed it down.

3 HEARING OFFICER: Well, I'll go back and look at those

4 hearings again. I thought in my own mind that

5 we had resolved those issues, even if it hadn't been

6 put down in a written order, and that maybe, I guess

7 I was thinking that would be something I would formally

8 address in the recommended order at the end of the

9 hearing, but maybe it should be in an order beforehand.

10 I don't know. It raises the prospect of interlocutory

11 appeals.

12 Anyway, why doesn't everybody go back and take a

13 look at what we discussed at those earlier hearings.

14 I feel there was a resolution for those. My. Hyde, I

15 don't know if you thought there was resolution or not.

16 MR. HYDE: It's my recollection that there was no

17 order entered on this, and that there was considerable

18 discussion, and you proposed something along the line

19 consisted with what I understood the Board's

20 understanding to be, but to my mind it wasn't

21 completely resolved. That's why I brought it up. I

22 guess I would stand by what I said in the past in that

23 regard.

24 HEARING OFFICER: Let's all take a look at that.

25 Just my impression is that because we argued about the

147

1 standard of proof, and I think the burden of proof, and

2 I think I cited Grand vs. Estuary Property case as an

3 appropriate structure for the way this hearing should

4 be conducted, which would simply be that the District

5 would come in and offer as a prima facie case what it

6 did in reaching the SWIM plan or adopting the SWIM

7 plan and how it viewed its statutory goal and what it

8 did to meet that statutory directive, and after that it

9 was up to the petitioners to come forward and challenge

10 those portions of the plan they disagreed with.

11 MR. HYDE: I think the one area I recall now as I

12 think about it that we did not reach closure on concerned

13 what to do regarding issues where one or the other

14 parties or maybe both parties didn't put evidence on, who

15 has, how does that et resolved, and...

16 HEARING OFFICER: Well, and I think we discussed

17 that, and I my recollection it is that the proposed

18 agency action stands unless it's successfully challenged.

19 That's what a 120.57 hearing is all about, and I

20 understand it. That's the way I have always been viewing

21 the case.

22 If I didn't articulate that clearly before, that's

23 certainly the way I have been thinking about it in my mind

24 from the time this first came up.

25 We have proposed agency action, and we've got

148

1 petitioners who are challenging that agency actin.

2 What I want to do is find out what the proposed

3 agency action is in the first hand, find out what the

4 challenges are in the second hand, and then we have

5 resolved the disputed issues that are raised by the

6 petitioners.

7 I think it's up to the petitioners to put their

8 disputes out on the table, and then we'll take evidence

9 on them, and only those issues that are raised or

10 disputed are the ones that I will resolve.

11 MR. HYDE: I understand what you're saying, and

12 I wasn't being too clear earlier, but I was concerned

13 about particularly a factual scenario where we

14 challenged something by saying there's nothing in the

15 plan about it, and something along those lines, and

16 I don't know what you need to do to prove it, other

17 than make the accusation that it's not there.

18 The issue that comes to mind I sour long-ago

19 argument about the economic ramifications of the plan.

20 I guess that the important thing. Do we have

21 to put on the full-blown case about economic

22 ramification of the plan if the burden of proof

23 is really on the District?

24 HEARING OFFICER: Well, in that particular instance

25 as I recall the way we resolved that, the District said

149

1 that they admit that they didn't address the

2 economic consideration about the, in fact when we

3 talked about the economic study that was one there were

4 reference in the study or about a study being done,

5 but as I recall Mr. Nettleton said the District had never

6 formally adopted that economic study or attempted

7 to incorporate it into the SWIM plan.

8 So I think the appropriate remedy of that particular

9 issue would not be to take a lot of testimony concerning

10 just the economic effect, but simply to make a finding

11 for fact in my recommended order that there was not

12 economic impact study that was done in connection with

13 adoption of the SWIM plan.

14 MR. FITZGERALD: And the conclusion of law, one

15 was or was not required, anyway.

16 HEARING OFFICER: Right. I mean, that's the other

17 side of the coin.

18 MR. HYDE: Before we leave this issue, I wanted to

19 suggest perhaps a second prehearing conference would

20 on a date perhaps closer to the date of the final order

21 be appropriate, sometime in April. I think it would be

22 useful for the parties to come together once again, and

23 I think it would be particularly appropriate, because

24 we are about to go into a legislative session where

25 various legislative amendments have been discussed, at

150

1 least in public forum, that may have material impacts

2 on this.

3 I think we would need to revisit our case at

4 that time, depending on whether those amendments are

5 enacted.

6 Even that aside, I think it would be a very

7 useful thing to consider going, just for purposes of

8 just organizing and focusing on the final hearing.

9 HEARING OFFICER: I would agree with that.

10 MR. NETTLETON: I think we will need more than one

11 additional hearing.

12 HEARING OFFICER: I was going to say I think we

13 will probably end up having more.

14 MR. FITZGERALD: Mr. Hearing Officer, since the

15 Legislature goes into session I believe the 8th of next

16 month and the initial hearing on that subject is

17 thereafter, we may very a pretty good sense by then

18 what's going on to hit the hopper in the way of bills and

19 have a better sense of the architecture of what's going

20 on.

21 HEARING OFFICER: I have done some legislative

22 work. You don't know what will happen until the last

23 day, and even then you don't know.

24 MR. HYDE: You may no know for several weeks

25 later.

151

1 MR. FITZGERALD: Or until the session is over.

2 HEARING OFFICER: Are you suggesting, I'm not sure

3 I understand, Mr. Fitzgerald, are you suggesting...

4 MR. FITZGERALD: Let's see how destructive the first

5 phase is and play the second one by ear.

6 HEARING OFFICER: I think we've got a hearing

7 set for February 11th. We'll keep that on. We've got

8 I think we can preliminarily schedule the second one,

9 someone suggested April 8th.

10 MR. FITZGERALD: That's the last day of discovery,

11 so if you want to roll it over it's okay. The

12 eighth would be fine.

13 HEARING OFFICER: Do you want to make it the 11th

14 then? April 11th? If we need other hearings in the

15 meantime or need to change the data, we can take that

16 up as we go along.

17 In terms of the access issue you're going to do

18 the overflights and get him the information. We

19 can probably resolve that by phone.

20 I don't see any need to schedule another hearing

21 to specifically address that.

22 MR. FITZGERALD: It may depend on whether or not

23 live testimony is required.

24 HEARING OFFICER: Okay. Well, as I suggested,

25 there are probably ways to work around some of the

152

1 concerns in terms of the wildlife or whatever.

2 If that's something that we have to wait until later

3 on and produce them later on, I've got a feeling we

4 will be into the early summer on this anyway, and

5 we can take that up then.

6 MS. RAEPPLE: Mr. Hearing Officer, I have one other

7 issue, and I'm not sure it's a problem, but I just want

8 to have clarity, address the mercury sampling data that

9 was conducted in the EAA, and you previously already

10 ordered, issued a protective order for nondisclosure

11 of that data.

12 Mr. Green wants it to be clear that when we depose

13 Ron Jones in advance of that data we will be reeving

14 the data, the mercury sampling data, and in advance of

15 our mercury and whatever conclusions he has drawn in

16 advance of our mercury witnesses, and we will similarly

17 disclose the data and the conclusions. He wanted that

18 to be understood.

19 MS. PONZOLI: So there is a misunderstanding, because

20 there had always been the understanding there would be

21 a simultaneous exchange of mercury data, and I have

22 always advocated we have open exchanges.

23 It is the Cooperative and the League who have

24 objected to making the data available, because once you

25 reveal it it flows to the ends of the earth, and I have

153

1 no objection to having it available, but I do object

2 to not seeing theirs and only revealing mine. I

3 want a simultaneous exchange of the mercury data, and

4 it's perfectly fine with the U.S. We will make that

5 available as rapidly as possible.

6 MS. RAEPPLE: No objection to a simultaneous

7 exchange.

8 MS. PONZOLI: We need agreement though from the

9 other parties, form the objecting League and the Fruit

10 and Vegetable Association who may have an objection.

11 MR. EARL: No objection.

12 MR. FITZGERALD: Mr. Hearing Officer, the League

13 a number of times has asked us for out EAA mercury

14 data, and I have taken the position consistently that

15 we viewed your order in the nature of a protective

16 nondisclosure order, unless everybody else had agreed

17 for an extrajudicial exchange, that based on their

18 arguments we weren't handing it to anybody.

19 HEARING OFFICER: I'm not really following this

20 conversation.

21 MR. NETTLETON: It sounds like everyone has agreed

22 to produce the information and testimony.

23 MS. PONZOLI: Simultaneously.

24 MS. RAEPPLE: We are no longer seeking protection for

25 the data.

154

1 HEARING OFFICER: All right.

2 MR. NETTLETON: That solve that issue.

3 MS. PONZOLI: Good time to stop.

4 HEARING OFFICER: On that point, that resolves that

5 issue.

6 (WHEREUPON, THE HEARING WAS CONCLUDED AT 1:50 P.M.)

7 * * * * *

155

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 154, 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 24th DAY OF JANUARY, A.D. 1994, IN

17 THE CITY OF TALLAHASSEE, COUNTY OF LEON, STATE OF FLORIDA.

STATE OF FLORIDA )

19 SS

STATE OF LEON )

21 The aforesaid instrument was acknowledged

22 before me this 24th day of January, 1994, by SUE HABERSHAW

23 JOHNSON, who is personally known to me.

CHRISTINE WHEELER

25 Notary #AA711091