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., and )

5 UNITED STATES SUGAR CORPORATION, )

-and- )

6 FLORIDA FRUIT AND VEGETABLE ASSOCIATION, )

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

7 INC., and HUNDLEY FARMS, INC., )

)

8 Petitioners, )

)

9 vs. ) DOAH CASE NOS.

) 92-3038

10 SOUTH FLORIDA WATER MANAGEMENT DISTRICT, ) 92-3039

) 92-3040

11 Respondent, ) (Consolidated)

)

12 and )

)

13 MICCOSUKEE TRIBE OF INDIANS, THE UNITED )

STATES OF AMERICA, FLORIDA DEPARTMENT OF )

14 ENVIRONMENTAL REGULATION, and FLORIDA )

WILDLIFE ASSOCIATION, )

15 )

Intervenors. )

16 ) _____________________________________________

HEARING BEFORE: HONORABLE J. STEPHEN MENTON

18 HEARING OFFICER

19 DATE: FRIDAY, FEBRUARY 11, 1994

(2:00 P.M. - 3:30 P.M.)

LOCATION: HEARING ROOM 3

21 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

CAROLYN RAEPPLE, ESQUIRE

5 Hopping, Boyd, Green & Sams

123 South Calhoun Street

6 P. O. Box 6526

Tallahassee, Florida 32314

7 (904-222-7500)

8 Representing Petitioners, Florida Sugar Cane

League, Inc., and United States Sugar

9 Corporation:

10 WILLIAM L. HYDE, ESQUIRE

Earl, Blank, Kavanaugh & Stotts

11 Suite 350

215 South Monroe Street

12 Tallahassee, Florida 32301

(904-681-1900)

-and-

WILLIAM L. EARL, ESQUIRE

15 RICK J. BURGESS, ESQUIRE

Earl, Blank, Kavanaugh & Stotts

16 One Biscayne Tower, Suite 3636

Two South Biscayne Boulevard

17 Miami, Florida 33131

(305-358-3000)

Representing Petitioners, Florida Fruit and

19 Vegetable Association, Lewis Pope Farms,

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

20 Hundley Farms, Inc.:

21 KENNETH L. HOFFMAN, ESQUIRE

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

22 Suite C

2700 Blair Stone Road

23 Tallahassee, Florida 32301

(904-877-0099)

1 APPEARANCES, CONTINUED:

2 Representing Intervenor, The United States

of America:

SUZAN HILL PONZOLI, ESQUIRE

4 THOMAS A. WATTS FITZGERALD, ESQUIRE

Assistant United States Attorney

5 Southern District of Florida

Third Floor

6 99 Northeast 4th Street

Miami, Florida 33132-2111

7 (305-536-5477)

8 -and-

9 STEVE MC FARLAND, ESQUIRE (via telephone)

MIKE REED, ESQUIRE (via telephone)

10 KENNETH A. SAXE, ESQUIRE (via telephone)

United States Department of Justice

11 Environmental & Natural Resources Division

General Litigation Section

12 Room 879, 601 Pennsylvania Avenue (20004)

P. O. Box 663

13 Washington, D.C. 20044

(202-272-4016)

Representing Intervenor, Florida Department of

15 Environmental Protection:

16 LEE M. KILLINGER, ESQUIRE

Assistant General Counsel

17 Department of Environmental Regulation

640 Twin Towers Office Building

18 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

19 (904-488-9730)

20 Representing Intervenor, Florida Wildlife

Association:

DAVID GUEST, ESQUIRE (via telephone)

22 LAURA J. ERICSON-SIEGEL, ESQUIRE

111 South Martin Luther King, Jr., Blvd.

23 P.O. Box 1329

Tallahassee, Florida 32302

24 (904-681-0031)

25 * * * * *

1 APPEARANCES, CONTINUED:

2 Representing Respondent, South Florida Water

Management District:

R. BENJAMINE REID, ESQUIRE

4 Popham, Haik, Schnobrich & Kaufman, Ltd.

400 International Place

5 100 Southeast Second Street

Miami, Florida 33131

6 (305-539-7222)

7 -and-

RUTH P. CLEMENTS, ESQUIRE (via telephone)

9 South Florida Water Management District

P.O. Box 244680

10 3301 Gun Club Road

West Palm Beach, Florida 33416-4680

Representing Intervenor, Miccosukee Tribe of

12 Indians:

13 DEXTER W. LEHTINEN, ESQUIRE (via telephone)

Spencer and Klein, P.A.

14 801 Brickell Avenue, Suite 1901

Miami, Florida 33131

15 (305-374-7700)

16 * * * * *

17 ALSO PRESENT:

18 THOMAS E. MOORE

JEFFREY J. WARD (via telephone)

* * * * *

INDEX

ITEM PAGE

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

HEARING CONCLUDED . . . . . . . . . . . . . . . . . . 111

CERTIFICATE OF REPORTER . . . . . . . . . . . . . . .112

1 PROCEEDINGS

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

3 AT WHICH TIME MR. HOFFMAN AND MS. ERICSON-SIEGEL WERE ABSENT

4 FROM THE HEARING ROOM.)

5 TELEPHONE OPERATOR: Let's take a brief roll call.

6 Mr. Ward?

7 MR. WARD: Yes.

8 TELEPHONE OPERATOR: Thank you. Ms. Clements?

9 MS. CLEMENTS: Yes.

10 TELEPHONE OPERATOR: Mr. Lehtinen? Dexter Lehtinen?

11 MR. LEHTINEN: Here. Yes.

12 TELEPHONE OPERATOR: Mr. Reed?

13 MR. REED: Yes.

14 TELEPHONE OPERATOR: Mr. Guest?

15 MR. GUEST: I'm here.

16 TELEPHONE OPERATOR: Mr. Macfarlane?

17 MR. MACFARLANE: I'm here.

18 TELEPHONE OPERATOR: Mr. Saxe?

19 MR. SAXE: Here.

20 TELEPHONE OPERATOR: And Stephen Menton?

21 HEARING OFFICER: Yes, ma'am.

22 TELEPHONE OPERATOR: If you need further assistance,

23 our number is 1-800-232-1234, and please reference

24 WR-37054. Thank you for choosing AT&T.

25 HEARING OFFICER: Good afternoon. This is Steve

1 Menton in Tallahassee. Let's take an attendance of the

2 people that are here in the hearing room with me,

3 beginning with the petitioners, for the League?

4 MR. EARL: Bill Earl, Bill Hyde, and Rick

5 Burgess, representing the Florida Sugar Cane League

6 and United States Sugar Corporation.

7 HEARING OFFICER: Okay. For the Cooperative?

8 MR. GREEN: Carolyn Raepple and Bill Green,

9 Mr. Menton, and Tom Lodge is sitting in with us.

10 HEARING OFFICER: Okay, and for the Fruit and

11 Vegetable Growers? No appearance this afternoon? Has

12 anybody heard from Mr. Hoffman or Mr. Cole as to their

13 intentions?

14 MR. EARL: I spoke to Mr. Hoffman yesterday.

15 He didn't say expressly he was coming. That was my

16 understanding.

17 HEARING OFFICER: Okay. Well, we'll begin without

18 him, and if he shows up here he's welcome.

19 Okay, on behalf of the proponents of the plan,

20 let's begin with the District.

21 MR. REID: Ben Reid, Popham Haik, for the District.

22 HEARING OFFICER: Okay, for the federal government?

23 MR. FITZGERALD: Tom Fitzgerald, accompanied by

24 Suzan Ponzoli.

25 HEARING OFFICER: All right. Department of

1 Environmental Protection?

2 MR. KILLINGER: Lee Killinger.

3 HEARING OFFICER: Okay, and Mr. Guest is on the

4 phone; is that right? Mr. Guest, are you there?

5 MR. GUEST: Yes, we're here.

6 HEARING OFFICER: Okay.

7 MR. GUEST: Laura Ericson should be there, too.

8 Is she there?

9 HEARING OFFICER: Not yet.

10 MR. GUEST: Okay, she'll be there.

11 HEARING OFFICER: Okay, any other people that are

12 making appearances in Tallahassee? Are there any other

13 appearances that need to be made by phone?

14 MR. LEHTINEN: Yes, Dexter Lehtinen, Miccosukee

15 Tribe of Indians out of Miami.

16 HEARING OFFICER: Okay. All right. Anybody else

17 need to make an appearance? Okay. Let's get started

18 then.

19 This hearing today was scheduled as part of our

20 ongoing struggle to try to finalize witness lists

21 and attempt to narrow the scope of those who are

22 involved in this case as soon as possible, and also to

23 facilitate the discovery process.

24 I don't know if there have been any particular

25 developments that need to be brought to light before we

1 get into the meat of the matters today. Are there

2 any earthshattering developments, settlements anybody

3 wants to reveal? Nobody is even smiling at that one.

4 All right. Then I guess we have to go right to the

5 gist of it.

6 There were a couple of matters left over from last

7 week. The first one has to do with the access into the

8 Park. We had discussed that there would be some

9 overflights, and perhaps the need for a telephone

10 conference hearing to resolve some of those issues

11 because of the time frames that were involved.

12 I did not receive any request for a telephone

13 conference hearing. I don't know what that means in

14 terms of the status of it, and maybe we need to get an

15 update on that.

16 MS. RAEPPLE: The overflight was conducted, and

17 we provided the U. S. Government with the GPS coordinates

18 of the locations where we wanted to conduct the

19 reconnaissance.

20 Mr. Fitzgerald reported back to me that there is no

21 problem with the locations we have identified in the

22 Park, and he has provided us with a draft special use

23 permit, which we reviewed and found acceptable, and we

24 are presently contemplating doing that reconnaissance

25 in the Park next Friday.

1 That's subject to Mr. Fitzgerald verifying the

2 availability of a park official to accompany our witnesses.

3 We are still discussing the Loxahatchee. WE have

4 not been able to reach an accommodation. Mr. Fitzgerald

5 and I have not been able to get our technical people

6 together. I tried to reach him yesterday but was unable

7 to do so. Today his technical person is unavailable.

8 Perhaps Monday or Tuesday we will be able to get the

9 technical people together and see if an accommodation

10 can be reached with regard to entry into the

11 Loxahatchee.

12 If that's not available within the next week we

13 would expect to be requesting a telephone hearing on

14 that entry.

15 HEARING OFFICER: Okay, Mr. Fitzgerald, anything

16 you'd like to add?

17 MR. FITZGERALD: I think that's accurate, Mr.

18 Hearing Officer.

19 The 18th for the Park, although I can't solve it

20 right now, I think it's highly probably we would be

21 able to do that. I've got a call in to the Ranger

22 who is coordinating that. He's out on a lunch break.

23 So I wasn't able to catch him.

24 With regard to the Loxahatchee, Ms. Raepple and I

25 discussed this to some degree this morning, and I think

1 I need to sound a note of caution referencing back to

2 our discussion of this two weeks ago now that there is

3 very little likely that we can do towards ironing out

4 the concerns.

5 Having the vegetative specialists of the Coop

6 say, "We think we can do this without causing a problem,"

7 does not get around the statutory and regulatory

8 regime that the Administrator or the Manager of the

9 Refuge has to deal with. If anything, the situation

10 from an intrusion standpoint has gotten worse, not

11 better, because I was at the Refuge yesterday and

12 speaking to the experts, and they have many of the

13 migratories are not simply on roost, they are on

14 nests, eggs in the nests, and there is concern over

15 not solely the water fowl or the high migratories, but

16 the snail kits are in the Refuge now, and they are

17 also in nesting activity.

18 The Refuge Manager feels considerable constraint

19 on his legal position of going forward for a special

20 use permit, and I just don't want to hold out a false

21 hope we will be able to work something out.

22 I suspect that we may have to come back to you.

23 We would still I think second the proposed compromise

24 or alternative mechanism for handling that which was

25 brought up two weeks ago of holding that off until we

1 get beyond the sensitive birding period, which would be

2 mid to late May, something on that order, and we can

3 pin that down with the experts when fledglings are no

4 longer a problem, and the data could be submitted in

5 writing or post-hearing or at the latter part of the

6 hearing if we're still, if that's still going on at

7 that time.

8 HEARING OFFICER: Okay. Well, that raises just

9 a couple of issues.

10 First of all, as I understand the need for access

11 to both the Park and the Refuge, it has to do with the

12 ground truthing of the satellite imagery that has been

13 taken.

14 Is it necessary to do ground truthing in both the

15 Park and the Refuge? Do they have to be done

16 separately? Wouldn't the truthing be the same,

17 irrespective of the location?

18 MS. RAEPPLE: Mr. Hearing Officer, my consultant

19 advised me that it's important to do ground truthing

20 within the area you are interpreting specifically.

21 There is some ability to translate across areas,

22 but because of the unique mixtures within the various

23 areas of the Everglades it is important to ground truth,

24 and I wanted to add it is not my intention to have

25 vegetative specialists causing a problem. I have

1 Dr. Lodge, who is a Ph.D. biologist with an

2 undergraduate degree in zoology who is prepared to

3 talk to the people at the Refuge and explain his

4 knowledge and the methodology that he would propose

5 whereby the nesting birds can be observed and avoided,

6 and he also has scientific studies to show that the

7 Everglades snail kite would not be harmed at all by

8 the experts or harassed by the process.

9 I am hopeful we may be able to allay the fears

10 of the Refuge Manager.

11 MR. FITZGERALD: Mr. Hearing Officer, if in fact

12 we get to that juncture I think we need still to

13 preserve the position we raised two weeks ago, and that

14 is based on the material discussed in my response to

15 their motion where I cited back to the points you

16 raised and the points Mr. Green conceded a year ago

17 when discussing entry, that they still need to

18 demonstrate a certain fairly high level of need and

19 relevancy of this material at this point in time,

20 especially in the fact of the considerations against

21 entry.

22 I'm not second guessing the expert point of view

23 of whether you need to ground truth vegetation in

24 both locations. All I can say is it is something

25 they would have to show, that there is going to be

1 vegetative mapping of that area, that it would be

2 relevant to the current entry and ground truthing

3 that they were unable to do during the 19 or 20

4 entries that occurred over the year-long period that

5 entry was permitted to all the petitioners into the

6 Loxahatchee.

7 I have seen on current satellite imagery related

8 to a vegetative map of the Loxahatchee surface in this

9 case in anybody's discovery thus far, so I'm not sure

10 just where that's coming from and why the sudden drop.

11 We may not need to resolve that right now, but

12 it's something I think you need to hear before we go

13 too much further.

14 MS. RAEPPLE: Mr. Hearing Officer, Ken Ruchie,

15 who is a District employee doing the satellite imagery

16 in the Park and had his deposition taken earlier,

17 testified you could not transfer interpretations

18 from one area to another. I'm surprised to hear Mr.

19 Fitzgerald has a question about it.

20 MR. FITZGERALD: I think she misunderstood. I was

21 at Mr. Ruchie's deposition, and I heard the same thing.

22 Mr. Ruchie did not drop on the table in my view a

23 vegetative map of the Loxahatchee for vegetative

24 purposes that would require verification or ground

25 truthing or review of that sort in order to impeach or

1 examine.

2 So I fail to see why or what somebody's ground

3 truthing in the Loxahatchee at this time. Nobody has

4 seen fit to advise us as to why it's necessary.

5 HEARING OFFICER: Okay. If I understand correctly

6 then there has been some arrangements worked out with

7 respect to the Park, so the only thing left has to do

8 with the Refuge.

9 I think that given the fact that we have worked

10 out a deal on the Park there should be some effort to

11 see if the information that can be gleaned from that

12 access might be extrapolated over and be a basis for

13 reducing the amount of ground truthing or the amount

14 of access necessary within the Park, and then try to

15 work around those concerns, given what the experts can

16 work out in terms of the procedures and what needs to

17 be done, maybe alleviate some of the concerns of the

18 Refuge officials, and if you can't work it out then

19 we'll set up a telephone conference call and take it

20 up.

21 Along those lines I think both parties need to give

22 some thought as to exactly how evidence would come

23 into play at the final hearing, so that we can figure

24 out if it is an issue that can be postponed to the

25 end of the hearing so that we can get around the nesting

1 period and some of the other concerns that the Refuge

2 officials have.

3 So if we do have to have a telephone conference

4 hearing I'd like to hear from both parties on that

5 aspect as well, as to whether or not it's going to

6 cause a problem in terms of the hearing itself if we

7 just wait until May or whenever an appropriate time is

8 and supplement the record, either through late filed

9 depositions where we may still be going on in hearing

10 at that point in time, and it won't be difficult to

11 add them on at the end.

12 So be prepared to address those issues if we

13 have to have a telephone conference call.

14 MS. RAEPPLE: Would it be appropriate to tentatively

15 schedule the telephone conference at this

16 time, simply because I want to expedite the time in

17 which we conduct that telephone conference,

18 should it be needed, since we are very close to the

19 time when it will not be possible for Mr. Downing

20 and Mr. Lodge to have final opinions ready for their

21 scheduled depositions unless they get entry quickly.

22 HEARING OFFICER: My calendar for next week has

23 cleared out, and I am in town. If you have a need to

24 reach me, call my secretary, and we can set up a

25 conference call. I should not have a problem next week.

1 MS. RAEPPLE: Thank you.

2 MR. BURGESS: Your Honor, we do have a pending

3 letter request with the Untied States for one additional

4 day of soil sampling in two different areas in the

5 Loxahatchee. Tom and I have corresponded on it. I

6 haven't had a reply to my latest letter, but based upon

7 what he said here today since we proposed helicopter

8 access, although our is in a discrete area at the very

9 south of the Refuge, within one-half mile of the canal

10 and within a quarter or a half mile of there, we want to

11 get a response.

12 MR. FITZGERALD: I suppose that that would seem

13 intuitively true, but in fact it may not.

14 MR. BURGESS: Okay. So we have to...

15 MR. FITZGERALD: I got a letter last night when I

16 got back because of the depo schedule, and there was

17 dead time, and I have sent that with the earlier, earlier

18 correspondence just involved what exactly are you talking

19 about, where, give me locations and details.

20 I have sent that up to the Refuge and said, "Look at

21 this, and is the same kind of problems? Are the areas

22 discrete enough? Is it limiting enough that it

23 does not raise concern?"

24 We're not trying to issue a blanket, "Stay the hell

25 out," kind of thing. I should know quickly.

1 MR. BURGESS: We may be bringing that up.

2 HEARING OFFICER: Okay, try to work it out and

3 add that onto the telephone conference if you can't,

4 so we can take care of that at one time.

5 Okay. Again as I expressed at the time we set up

6 the first access and then last week, I don't want to get

7 into a situation where we're continuing to rehear this

8 and hear these problems, so we very deliberately set up

9 that first schedule to try to take care of all of the

10 testing that was reasonably known at that time, and I

11 think we're going to have to live with that with

12 exceptions where there are very unique circumstances,

13 so just keep that in mind as you go through this

14 process.

15 MR. BURGESS: To follow up for purposes of

16 clarification, what we're seeking to do is round out

17 the area to show the phosphorus gradients away from

18 the canal. That only came to our attention as a

19 result of the results. We will be prepared to show

20 that, if necessary.

21 HEARING OFFICER: All right. The next issue that

22 I had made a note to bring up, it may be a little bit

23 out of order, but it seemed like it would be simpler to

24 address than other ones, so I put it at the top of the

25 list, because it has to do with the motion to strike

1 filed by the Cooperative with respect to the League's

2 amended petition and the inclusion of the technical

3 mediated plan as an exhibit and the references within

4 the petition to the mediated plan.

5 I have been through the motion as well as the

6 response that was filed. I did not receive anything

7 either for or against the motion from the proponents

8 of the plan, so it seems to be a battle going on between

9 the petitioners.

10 Let me just say that when I first got the amended

11 petition that was filed by the League and began

12 reading through it and realized what the attachment

13 was at the back, I went, "Oh, no. Can I read this?"

14 And so I very deliberately did not read the

15 amended petition with the expectation that this issue

16 very well could come up, and before I delve too far

17 into it I thought we needed to discuss it a little bit

18 further.

19 Without getting into some of the issues that were

20 raised in the motion to strike, it seems to me that the

21 real issue is whether or not it is appropriate for me

22 to be reviewing a document that was produced during

23 settlement negotiations, and that's what it comes down

24 to.

25 I don't know. I did not read the amended petition

1 to be an attempt to substitute the mediated plan for

2 the originally adopted plan as was suggested. I

3 don't think that's exactly what the petition said.

4 One thing that I did think was interesting in the

5 motion to strike was the suggestion that the references

6 to the mediated plan should be stricken from the amended

7 petition, but that it could still serve as a basis for

8 cross examination during the final hearing in this case.

9 It seems to me that it's either protected as

10 confidential settlement negotiations, or it's not

11 protected, and I don't see how you can have it both ways.

12 So having said that I'm interested to hear first of

13 all the position of all parties as to whether or not it's

14 appropriate for me to review the mediated settlement

15 plan or if it is in fact confidential settlement

16 negotiations, and if it is confidential settlement

17 negotiations, whether it is a document that could be

18 utilized at final hearing in terms of cross examination

19 of witnesses.

20 So, Mr. Green, it was your motion to strike. I

21 don't know if you want to go first to respond.

22 MR. GREEN: I'll take just a brief stab at it.

23 I feel obliged I think, since I believe I objected a

24 couple of times during the settlement efforts to any

25 discussion of specific matters dealing with that, and

1 actually our motion really didn't direct itself towards

2 that issue.

3 I think I would prefer to say that we think

4 it's inappropriate to attach, because it doesn't have

5 any status as a legally cognizable document because

6 of the statutory development process. We really did

7 not get into the issues, but that's a fair question.

8 The way I would duck that question is we essentially

9 think that it should be stricken without prejudice with

10 regard to the League's efforts to use it in the hearing,

11 but whether you allow it is a separate issue, so I

12 guess I think it's inappropriate to be in the record of

13 these proceedings frankly, but that wasn't the thrust

14 of our motion, because we felt that perhaps inadvertently

15 it might be viewed as a way to bring that plan into

16 these proceedings without going to the proper notice

17 procedures.

18 HEARING OFFICER: Okay, as to that issue I think

19 I clearly understand that we're dealing with the

20 March, 1991, SWIM plan for purposes of this hearing

21 at this point in time until someone shows to me why we're

22 not, and that the mediated technical plan is not the

23 one at issue, so I'm not that concerned about having

24 that as an attachment if everybody is in agreement that

25 we're waiving the confidentiality aspects of it because

1 it developed during settlement negotiations.

2 I think that's the bottom line that we need to get

3 to. It's either that everybody is in agreement the

4 confidentiality has been waived, or it hasn't been

5 waived. If it's waived then there's no sense spending

6 a lot of time on this, and if they ant to attach it

7 as an exhibit that's fine, and we can just go on, and

8 we'll see what happens at the hearing in terms of how

9 it's used.

10 But if somebody is asserting confidentiality,

11 that's an issue we need to resolve.

12 MR. GREEN: Your Honor, we did not wish to waive

13 our right to maintain confidentiality to the extent

14 we have that right, and we did not intend to. I did

15 not address it in our briefs.

16 HEARING OFFICER: I haven't reviewed it to

17 determine its content, to determine if it was

18 confidential. That was just my off-the-cuff impression

19 that it may well be protected.

20 Someone may be able to demonstrate to me that

21 it's not, but...

22 MR. GREEN: I think we briefed that issue

23 briefly in an earlier pleading, but that would be our

24 position, and we would not want to waive that at this

25 point. I know you want to hear from the others.

1 HEARING OFFICER: Mr. Earl?

2 MR. EARL: You are correct, Mr. Hearing Officer.

3 We did not bring it in to substitute. We clearly

4 don't think it should be substituted for what's being

5 litigated.

6 The old song, "Two Different Worlds," that's

7 precisely the situation we find ourselves in. When we

8 deal at DOAH here we are told over and over again

9 this is the plan, the '91 plan is the plan, and when we

10 go to Governing Board meetings as late as two weeks

11 ago when we went to the Lower East Boast Water Supply

12 Planning for all the work being done by the District

13 we are told by the number two man at the District,

14 Mr. McVicker, that it's being used, and it's going to be

15 built into the models that are going on, that there's

16 still a commitment to the mediated technical plan.

17 Our consultants, Mr. Hearing Officer, in trying

18 to get ready for this hearing as late as yesterday,

19 we need to fish or cut bait on this issue. Either it's

20 not going to be part of this, or it is going to be

21 part of this.

22 As late as yesterday we had three consultants

23 call, and they are doing some analysis of Mr. Walker's

24 work, and some of his analysis focuses on the mediated

25 plan as revised, because as you probably know, Mr.

1 Hearing Officer, the mediated plan takes in hydro period,

2 takes in water, takes in sheet flow, solves a lot of

3 the problems the '91 plan doesn't. It has more STAs.

4 And they said, "What should we do? You want our

5 work by X date." I said, "Right now until we get a

6 ruling on this do not analyze the mediated plan.

7 Assume we have been told by the District that we're

8 going forward with the '91 plan."

9 We need to put everybody on notice that if there

10 is a switch to the mediated plan it's going to require

11 more work, more discovery, and it's going to delay

12 this hearing process.

13 So I think that needs to be clear, and I just want

14 to point out I think we may well be wasting our time in

15 this process, because I believe it's a charade. I believe

16 the plan is to shift to this or something comparable by

17 statute.

18 So it's my clients, hey are very unhappy about

19 spending the money and the time and the resources right

20 now working on a plan which we don't think, certainly

21 not in the opinion of the number two man at the District

22 and the Lieutenant Governor when he addressed the

23 Governing Board on January 13th and many others cited

24 in our briefs that really it's where this thing is going,

25 because it's a much better plan.

1 It meets the requirements of the SWIM plan in that

2 it not only takes care of water quality but it will

3 restore the hydro period. The '91 plan, of course,

4 doesn't do that. The mediated plan does, and we

5 think it's natural they shift to the plan, and that's

6 where we are on that.

7 Mr. Hearing Officer, this is an effort to raise

8 this issue, and I did not discuss this with Mr. Green

9 before. I know he has strong feelings on this, but

10 it is necessary, because right now we're not preparing

11 for the mediated plan. We think it's a better plan.

12 We think it takes care of the hydro period. We think

13 it meets the statute, unlike the present plan, but

14 there needs to be a decision on this, and it needs to

15 be done now.

16 We felt the appropriate way was in the pleadings.

17 If it's out and it comes back later, we're looking at a

18 longer hearing and additional time. I want everyone

19 to know that.

20 HEARING OFFICER: Well, Mr. Earl, I think we have

21 discussed this several times in the past at various

22 stages, throughout the development of the mediated plan,

23 and you have, I have consistently heard from the District

24 as part of this proceeding that they're going with the

25 March, 1991, plan.

1 That is the basis upon which I have scheduled the

2 hearing for April 25th and the basis upon which we

3 had been working to establish discovery schedules.

4 So in terms of this particular proceeding I don't

5 think I have any choice, given what's been put before

6 me, but to go forward with that original plan.

7 I agree with you if there is a modification to

8 that, statutorily or through the process of a remand to

9 the District or whatever, we may have to revisit some

10 of the scheduling issues, etcetera, but it's just not

11 before me at this point in time, and all I can do is

12 do what the statute directs me to do, which is to

13 expedite a hearing in the challenges to the plan that's

14 been adopted and that's currently on the table.

15 I agree that if there is an intention at some point

16 to substitute some other plan, this is really a wasted

17 effort, and our people are spending a lot of money and

18 a lot of time, but I'm without an option so far as I

19 view it right now.

20 So I think getting back to the matter that's at

21 hand here, which is whether or not the mediated plan is

22 appropriately part of this proceeding, Mr. Green has

23 indicated now, again I realize nobody has directly

24 researched it, but he does not want to waive his position

25 that that document was confidential because it was

1 developed during the settlement negotiations.

2 So in view of that position what is your feeling

3 as to whether or not it's appropriate to even have it

4 attached as an exhibit?

5 MR. EARL: We think it's appropriate as to that

6 issue, Mr. Hearing Officer, because it's a repudiation.

7 It would not be...

8 HEARING OFFICER: But if it came up in the context

9 of settlement negotiations that were not fruitful, in

10 other words there was no settlement entered as a result

11 of that mediation, isn't it just like if you have a tort

12 case and the parties discuss how much they're going to

13 settle for, and they don't reach a settlement, so you

14 can't use the fact that they threw out some numbers as

15 I mentioned of liability in terms of the trial when you

16 finally get there?

17 MR. EARL: Well, I do believe there is a common law

18 exception in terms of admissibility for documents as

19 repudiations of prior actions, and that's how we view

20 this mediated plan.

21 HEARING OFFICER: But if the mediated plan was

22 never adopted, how can it be a repudiation?

23 MR. EARL: It was prepared. It was agreed to by

24 representatives of the District. It has not been

25 formally adopted by the Governing Board. It has not

1 gone through the statutory process, and it has not gone

2 through the commenting process with agencies, which is

3 why I say if it does we are looking at a much longer

4 process if those changes are made and if it's modified.

5 HEARING OFFICER: Mr. Reid, did you have

6 something you wanted to add?

7 MR. REID: I'm just, we keep coming back to the

8 same issue. This is the straw man that's put up again

9 so we can knock it down again.

10 At this point the Governing Board has taken an

11 action, and until the Governing Board takes another

12 action we only have the one action that they have taken,

13 and we specifically discussed this at the hearing before

14 last, and I understand that in some of the document

15 requests there has been a request for documents

16 relating to the depositions or the subject matter

17 listing the mediated plan.

18 Until the, only the Board can adopt the SWIM plan.

19 Lieutenant Governor McKay, with all respect, can't,

20 and Mr. McVicker can't, and so if they are going to

21 claim because of something Mr. McKay said at a Board

22 meeting, I missed the point entirely.

23 And we just keep, they keep bringing it up, and

24 then they say, "But I'm telling you," and there are

25 these veiled threats that we are dragging people through

1 things and costing them money.

2 There's an easy remedy. If they are sure the

3 mediated plan is going to be the one they can always

4 drop this proceeding. They filed the proceeding.

5 We just keep coming back to this every time.

6 All I can say is this is the SWIM plan that was

7 adopted, and nothing else has happened, and I don't

8 know why we keep having to come back every time.

9 HEARING OFFICER: What's the position of the

10 federal government with respect to confidentiality?

11 MR. REID: I think it certainly came out of

12 settlement. I haven't thought about it specifically

13 other than just generically.

14 It certainly was part of settlement discussions,

15 and I don't know of any common law exception to settlement

16 called repudiation.

17 I mean, I think it's exactly what you say. Any time

18 if you're asking for "X" dollars and you offer to settle

19 for "Y" dollars, I guess you could say that's a

20 repudiation of your "X" dollar demand that you previously

21 made, but more importantly as you point out perhaps

22 in some legal action when you're talking about action of

23 a body here, the Board, that hasn't happened.

24 MS. PONZOLI: We have a position. It is getting to

25 be a rare day where I will agree with Mr. Green and

1 Mr. Earl. I agree with Mr. Green that it is confidential,

2 and that was throughout the settlement discussions.

3 The United States took the settlement position that they

4 are confidential.

5 I agree with Mr. Earl that as far as I'm concerned

6 it's out, and I think it is out. We are here on the '91

7 SWIM plan. Those settlement discussions failed. The

8 people on each side of the table would have loved to

9 have seen them succeed. They failed. I don't think

10 they can be used as a repudiation, I think they are an

11 admission that they actually thought certain things would

12 work.

13 They are not part of this proceeding. We have

14 agreed to litigate on what the Board has put before us.

15 I think there's a lot of benefit to litigating what

16 is before us, but there are issues of fact that were

17 established that will push things forward in an

18 expeditious way, however they end up.

19 I think there is a very great benefit to that,

20 but I think they are confidential.

21 I have been asked for all of my settlement

22 documents from various experts. I intend to not produce

23 them. I think it's wholly inappropriate.

24 HEARING OFFICER: Mr. Killinger, do you have anything

25 you wanted to add?

1 MR. KILLINGER: I agree with what everybody said.

2 I think it is confidential, and so are all the

3 documents associated with it.

4 I don't think they should be requested as a matter

5 of good faith, so we don't have to go through a listing

6 of every single one of those documents on an exception

7 or privilege list. It could be a categorical list to

8 request those generated during the settlement process.

9 MS. PONZOLI: I agree.

10 MR. EARL: Mr. Hearing Officer, if I may be

11 heard on that, that is to make this, we have one thing

12 that's called a mediated technical plan which arose

13 after the settlement, and there is a whole separate

14 issue here which was in the first pleadings, and as

15 you recall it relates back to the secret settlement

16 agreement between the state and federal government,

17 and that consent decree that they generated that

18 mandated that these provisions that are now in the '91

19 SWIM plan be in there and be taken verbatim out of

20 the consent decree and put into this document.

21 Those are very much at issue. Anything relating

22 to that settlement is very much at issue in this.

23 MR. REID: We violently disagree with that, by the

24 way.

25 HEARING OFFICER: Okay, I figured that was going to

1 come to a head at some point, but I thought Mr.

2 Killinger was simply talking about settlement negotiations

3 with respect to the technical mediated plan; is that

4 right?

5 MR. KILLINGER: Yes, but similar settlement

6 documents are inappropriate.

7 MR. FITZGERALD: You recall you ruled they could

8 require in depositions to the extent of the derivation

9 of the numbers, and that was it, and we have taken that

10 ruling and acted upon it.

11 MR. REID: But not people sneaking around and doing

12 bad things. You excluded that.

13 MR. FITZGERALD: Yes. That's another issue.

14 HEARING OFFICER: That is another issue that I think

15 we need to deal with. We need to deal first with the

16 confidential technical mediated plan and all the issues

17 related to that, and if there are some ongoing disputes

18 regarding discovery into the settlement litigation

19 we will have to revisit that. There is no pending

20 motion. There is nothing before me with respect to

21 those issues right now.

22 We have talked about those at length in prior

23 hearings, and before I would try to categorize or

24 characterize exactly what I said I want to go back and

25 look at it again and try to remember the context in which

1 it came up.

2 MR. REID: And we do have I think one of our

3 motions to strike which actually covers that, so there

4 is a motion in the record.

5 MS. PONZOLI: We will intend to keep the two

6 issues separate and discuss today the technical mediated

7 plan settlement. That was our guideline here.

8 MR. GREEN: I guess I started it, so I think I

9 would like to comment on a couple of things that have

10 been said.

11 Number one, we think the plan we are litigating

12 is technically flawed and indefensible. We think the

13 mediated one is even more so. I want the record to

14 be clear on that.

15 We don't care which one. They are bad issues.

16 Number two, as I understood the people going around

17 doing bad things issue, to the extent the settlement

18 agreement dictated the legal policy or factual conclusions

19 of the SWIM plan, which I understand, it's our

20 understanding of the numbers, just for the record Your

21 Honor will have to tell me if I've erred.

22 The third point, the mediated technical documents

23 may have, they were done sort of in the open, with the

24 doors open in one sense, and in the other sense

25 is it an admission, or is it a concession? I would

1 argue, and the reason we filed our motion is we have a

2 very different view from Mr. Earl on the plan obviously.

3 He thinks it cures some defects of this plan, in the

4 original plan.

5 We think it's still indefensible, and we are

6 anxious to get to hearing on either plan as soon as

7 possible, because we're going to prove that. Thank you.

8 MR. FITZGERALD: Is that a stipulation on the

9 burden of proof?

10 MR. EARL: I apologize. I just did not want the

11 correct statements of counsel to be misinterpreted as

12 going into another issue. I apologize.

13 HEARING OFFICER: Okay. Again with respect to the

14 settlement issue, there's nothing pending before me

15 now, and I'm not going to get into it.

16 MR. GREEN: Right.

17 HEARING OFFICER: If there is a dispute over it,

18 then bring it up through a motion, and I will go

19 back and try to make sure I'm consistent in the way I

20 approach it.

21 We talked about it in length earlier, and it

22 was very extensively briefed, and I thought I laid out

23 what my thinking was on those particular issues, and

24 if there are any disputes we will have to take those up

25 separately.

1 Getting back to the technical mediated plan,

2 although it was ont an issue that was specifically

3 raised with the motion to strike, based upon what

4 I'm hearing from them today there are several

5 parties, including the Cooperative as well as the

6 federal government, who are not waiving the

7 confidentiality aspect of the document, because it

8 was developed within the context of the settlement

9 negotiations.

10 I don't think anybody has looked specifically at

11 the law, but I think the safest course to go would

12 before me to refrain from any review of that technical

13 mediated plan.

14 I have obviously read the allegations in the

15 amended petition that was filed by the League. I

16 don't think there is any great prejudice with respect

17 to that, since I have known all along that there have

18 been efforts to develop that plan, but I will not

19 review that technical mediated plan any further until

20 either there is an agreement between all parties

21 that the confidentiality aspect has been waived, or

22 somebody demonstrates to me that it does not fit

23 within the protection of settlement negotiations as

24 I off the top of my head currently interpret it to fit.

25 So in that regard I think we also have to

1 come to some understanding as to how we are going to

2 approach discovery with respect to that technical

3 mediated plan.

4 And likewise until someone demonstrates to me

5 the contrary, I believe that those issues are not

6 appropriate for discovery, because they have arisen

7 within the context of settlement negotiations.

8 If you disagree with that or have particular

9 questions that you think fall outside the scope and

10 seen an answer, file a motion to compel, and we'll

11 take it up that way.

12 But I don't want to see a lot of time wasted on

13 discovery regarding the development of the technical

14 mediated plan when that's not what's before us now.

15 So I think that takes care of the issues with

16 respect to that plan. the only other aspect of that

17 would be in the context of using it for purposes of

18 cross examination during the hearing in this matter,

19 and that was an issue that was alluded to within the

20 District's motion to strike.

21 At this point I don't see why it's any different

22 than discovery, to be honest with you, but I don't know

23 that I need to reach a conclusion on that right now,

24 but unless someone presents me with some case law or

25 something to convince me otherwise, my impression of the

1 final hearing would be to treat it the same way as

2 a discovery question, that it is confidential and

3 privileged, and it's not totally appropriate to get into

4 it.

5 So if you try to get into it at the final hearing,

6 you will need to address that beforehand and convince

7 me otherwise.

8 MR. GREEN: Thank you.

9 HEARING OFFICER: Anything else with respect

10 to that at this time? Okay. That was the easy one.

11 All right, I think the next issue we have to deal

12 with related to the witness lists and the statements of

13 issues that various parties have filed.

14 Probably the best way to approach is to let me

15 go through exactly what I have received at this point

16 and the documents that I have reviewed.

17 Sometimes it gets filed, and it doesn't get to me

18 for a day or two, so it may be that there are some

19 things that are in the Clerk's Office or in my

20 mailbox, so if you come across some different ones,

21 then bring those to my attention, just so I'll know

22 there is something else out there.

23 But at this point I have received an amended

24 petition by the Cooperative, an amended petition

25 filed by the League, I have received a joint overview

1 of the statutory compliance that was filed on behalf of

2 respondents, I have received the League's disclosure

3 of expert and fact witnesses, the respondent and

4 intervenors' first and second witness lists, the

5 Cooperative's statement of ultimate facts, the League's

6 pretrial disclosure of issues and witnesses, and the

7 respondent and intervenors' statements of issues

8 and witnesses, the Cooperative's designation of

9 expert and fact witnesses, and a response to the

10 respondents' overview that was filed on behalf of the

11 League.

12 (WHEREUPON, MR. LODGE LEFT THE HEARING ROOM.)

13 Are there any documents that I have missed in this

14 so far? Did anybody else file anything I haven't got?

15 MR. EARL: For convenience only we have, after

16 talking with Mr. Hoffman and Mr. Green we have combined

17 one list, Mr. Hearing Officer, I have given it to

18 counsel, of all of the petitioners' witnesses.

19 MR. REID: Could I just ask a question? The

20 dotted line...

21 MR. EARL: That's where the break is...

22 MR. REID: Among the petitioners?

23 MR. EARL: Yes.

24 MR. REID: Okay. So 1 through 21 would be

25 the League witnesses, and 22 through 36 would be the

1 the Coop's witnesses and so forth?

2 MR. EARL: 37 and 38, FFE.

3 MR. REID: Thank you.

4 MR. GREEN: There may be one jointly listed.

5 MR. EARL: There was a typo in the one that was

6 mailed. This is the corrected copy.

7 HEARING OFFICER: Okay. Let's see if we can take

8 up the issue with respect to the witness list first.

9 As we discussed at the last hearing, there seemed

10 to be a difference in approach between those parties

11 aligned in support of the plan and those parties

12 aligned against it as to how they approached the last

13 exercise in terms of the 30 witnesses, etcetera.

14 As a consequence of that I guess that's why all

15 these amended witness lists and the first and second and

16 third list and all that have been filed, and I don't

17 know where that ultimately comes out.

18 I hope it has served to get a handle on who the

19 witnesses are and narrow perhaps the number of

20 witnesses, etcetera, but those are some of the things

21 we need to talk about today.

22 From the last hearing there were a couple of

23 things that I'm curious as to what has developed. We

24 talked about trying to reach some stipulations with

25 respect to foundation witnesses and standing witnesses

1 in particular.

2 I don't know whether there has been any effort

3 or any success in that regard and how that may impact

4 upon the most recent witness lists that have been

5 submitted.

6 MR. EARL: Mr. Menton, we have sent five proposed

7 stipulations to counsel. I have heard from Mr.

8 Nettleton, and he said he hasn't had time to go

9 through them.

10 We submitted them on issues of standing, as we

11 mentioned, and on some basic allegations in the

12 complaints, on I believe Dr. Lefohn, Dr. Krupa,

13 and Mr. Waller. We are preparing others and hope to

14 work through that. There has been no agreement yet.

15 HEARING OFFICER: So at this point your witness

16 list includes all the foundation witnesses you

17 indicated may be, or it's possible could be eliminated

18 through stipulations down the line? So the list

19 could be narrowed further as a result of stipulations?

20 MR. EARL: And in fact Dr. Lefohn and Dr. Krupa

21 were moved up to the first witness list, because

22 Ms. Ponzoli declined at the last hearing to agree to,

23 they are the ones who did the precipitation to phosphorus,

24 they have been moved up, but we are still hopeful we can

25 resolve that.

1 MR. HOFFMAN: Ken Hoffman for the Fruit and

2 Vegetable Association. The witnesses that are shown

3 in the document Mr. Earl referred to are all of the

4 witnesses, only includes those witnesses we would

5 call, assuming standing is agreed to.

6 I assumed that based on the oral representations

7 at the last meeting, and I haven't heard disagreement,

8 and that's our assumption.

9 If we have to have standing witnesses we need to

10 add back on some.

11 From my clients' view that's the stripped down

12 list.

13 HEARING OFFICER: Okay, just so I'm clear,

14 Mr. Hoffman, I don't think that I received anything

15 from you other than what's within that in terms of

16 your witnesses?

17 MR. HOFFMAN: Correct.

18 HEARING OFFICER: But as I understand, on

19 page three of the document Mr. Earl just handed me,

20 number 37 and 38 are the two witnesses now you're

21 listing, assuming that standing witnesses can be

22 eliminated as a result of stipulations?

23 MR. HOFFMAN: Correct.

24 HEARING OFFICER: And if they can't be, then you

25 may need to add some witnesses to address the standing

1 issues?

2 MR. HOFFMAN: Correct.

3 HEARING OFFICER: Okay. But for Mr. Earl and

4 Mr. Green the standing witnesses are listed on here

5 until such time as you are able to determine that

6 there are stipulations that eliminate them, is that

7 right?

8 MR. EARL: Yes, sir, and as I mentioned last time

9 two of those witnesses may be necessary to testify about

10 other things dealing with the EAA practices beyond

11 standing.

12 MR. REID: So I understand, you will tell us

13 which of your witnesses you consider to be foundation

14 or standing witnesses and give us a chance to agree

15 or not?

16 MR. EARL: They are all listed. That's list

17 number two, Counsel.

18 MR. REID: Oh, I'm sorry. Let me find it.

19 I can assume that 1 through 22 on petitioners'

20 consolidated list number two are all standing or

21 foundation witnesses? I guess then I just need to

22 know for what, I mean, for what?

23 MR. EARL: Well, some of these individuals on

24 list number one would also be obviously presented as

25 foundation.

1 MR. REID: I was trying to find out just as a

2 process if you were going to tell us which ones you

3 believe are foundation or standing only, and then

4 we'll either agree or we won't agree.

5 MR. EARL: Mr. Menton, I think that's what the

6 list number two was for. That's what it was for.

7 MR. REID: It didn't say that. I'm just asking.

8 I'm not arguing.

9 HEARING OFFICER: List number two had a different

10 definition at the last hearing than what we have now.

11 MR. REID: Now I understand. List number two is

12 all foundation or standing.

13 MS. PONZOLI: For them, not us.

14 MR. BURGESS: That's not true.

15 MR. FITZGERALD: Can we have one version from

16 Column C?

17 MR. REID: To go back to what I said to start

18 with, if they will just tell us which ones...

19 MR. EARL: Mr. Burgess points out properly that

20 some of these, of course, are rebuttal witnesses, too.

21 The Hearing Officer asked us to list those.

22 MR. REID: I think the way of doing it is the

23 correct way. He's giving us proposed stipulations, and

24 we'll respond.

25 MR. BURGESS: We expect to offer proposed

1 stipulations to the 44 secondary witnesses.

2 MR. EARL: We misunderstood, Mr. Hearing Officer.

3 We understood that they were then coming with their

4 foundation witnesses. We now are told I believe now

5 their list number two is not foundation witnesses.

6 MR. REID: No, it's not.

7 HEARING OFFICER: Before we get to this and confuse

8 some people further, let's make sure we're working from

9 the same list here.

10 The first list, list number one on this document

11 that Mr. Earl handed me is a listing of all of the

12 petitioners' witnesses that they intend to call at the

13 hearing, with the only exception being Mr. Hoffman's

14 standing witnesses if they are necessary, correct?

15 List number two includes an additional list of

16 witnesses who may be necessary if stipulations regarding

17 standing and some of the foundational documents cannot

18 be reached, as well as some rebuttal witnesses, as Mr.

19 Burgess has pointed out, so that potentially a good

20 portion of list number two may be eliminated through

21 stipulations, but there may still be some that will be

22 called as rebuttal witnesses if necessary, and we

23 will have to see how that develops.

24 MR. REID: What's list number three?

25 MR. EARL: With one exception, Mr. Menton, and

1 that is in addition, it doesn't just relate back

2 to documents, but field work and testing and other

3 things, things like survey work done by the individuals.

4 When we used foundation we used it broadly, so

5 we hope we will be able to stipulate and not put two

6 surveyors on, or Mr. Waller and why he located the

7 water measuring stations and so on and the results of

8 his conclusions, his report on that. That's the

9 type we're talking about.

10 MR. REID: And list number three would be what?

11 HEARING OFFICER: List number three as I understand

12 it from the last hearing are those witnesses who are

13 not on their witness list but those who they do with to

14 pursue discovery from.

15 As I recall from the hearing we had, is that

16 right...

17 MR. REID: This is a new list number three, I

18 think.

19 MR. EARL: This is, Mr. Green provided it. I

20 guess he should explain what it is.

21 MR. GREEN: Well, we thought you asked for this,

22 Mr. Menton, when we talked about Cole, Haith, Herbert,

23 and Missimer, and I didn't catch all that. I apologize.

24 It was my understanding you said folks like that

25 ought to go to list three. We do not intend to call

1 them. They are doing work currently. We would only

2 call them if something occurred in the hearing that we

3 felt we had to turn them on to do rebuttal testimony.

4 They have been deposed. We put them on list three.

5 I mean, we could drop them, but out of an abundance of

6 caution we said, "Well, here they are."

7 HEARING OFFICER: Okay. If something comes up you

8 obviously are going to let us know, well enough in

9 advance, so we will be able to prepare accordingly...

10 MR. GREEN: Yes, sir.

11 HEARING OFFICER: ...and there will be an

12 explanation as to why they are suddenly necessary and

13 were not necessary before?

14 MR. GREEN: Yes, sir. That's our understanding.

15 And then the adverse witnesses are witnesses that

16 Mr. Earl or we might call but, at hearing, we're also

17 deposing.

18 MR. REID: None of those would be foundation or

19 standing witnesses, the adverse witness list?

20 MR. EARL: The adverse witnesses may well be.

21 MR. HYDE: They may well be foundation witnesses.

22 MR. REID: Okay, so again you'll let us know,

23 and we'll see if we can stipulate to it.

24 MR. EARL: I don't think we will be able to.

25 Some of these will be part of our case in chief.

1 Others may or may not be.

2 MR. REID: All I was suggesting was if there are

3 witnesses that are solely foundation or standing, I

4 didn't mean to go beyond that, that you'll let us

5 know, and we'll see if we can stipulate.

6 MR. EARL: I assume to be reciprocal you will

7 do that?

8 MR. REID: Sure, we will.

9 MR. GREEN: And, Mr. Menton, with these folks,

10 discovery is ongoing. We have been busy beavers the

11 last week or two. It may be we will all add more

12 adverse witnesses. We have been learning a lot of

13 interesting things.

14 MR. REID: What?

15 HEARING OFFICER: Okay. That brings up two other

16 points that sort of carry over from last time, and the

17 first has to do with the generic witnesses. I assume

18 most of those have now been identified and placed on

19 the appropriate list. The only one I saw in looking

20 through here is number...

21 MR. GREEN: Number 35 on page three?

22 HEARING OFFICER: Yes. 36, manufacturers'

23 representative on microfiltration.

24 MR. GREEN: Would you like to hear about that?

25 HEARING OFFICER: Yes.

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

2 MR. GREEN: Our client has, as I think everyone here

3 knows, has sponsored research in the EAA on a phosphorus

4 removal technology which also removes mercury, called

5 microfiltration.

6 We want to bring that evidence to the hearing, and

7 we may even be asking you for permission to

8 demonstrate the technology in the hearing, if we

9 can do it, and we, at this point we are trying to find

10 a manufacturer's representative to run the device.

11 It's not expert testimony. It's someone who could

12 give you a demonstration. We are doing that as quickly

13 as possible.

14 But this is not the kind of witness that someone

15 would depose for two weeks. It's simply a demonstration

16 type witness.

17 HEARING OFFICER: So the main witnesses you have on

18 microfiltration are listed above?

19 MR. GREEN: Yes, sir, Kevin Boehmer, and

20 Dr. Earl Shannon. Numbers have changed. Boehmer and

21 Shannon ar both with CH2M Hill. They are now 35 and

22 27.

23 HEARING OFFICER: Okay. When do you expect to

24 have the manufacturer's representative identified?

25 MR. GREEN: Like in the next two to three days.

1 We have been in depositions, and frankly I had hoped

2 by today to have had that person identified.

3 HEARING OFFICER: Okay, I think by next week let's

4 have him identified and have him specifically listed.

5 I don't want to have any new witnesses popping up

6 at the last minute that haven't been fully disclosed

7 with an opportunity to depose, if they choose to do

8 so.

9 That brings us to the question of additional

10 adverse witnesses, others that may be identified in

11 discovery.

12 You know, at this point I would think that

13 everybody has a pretty good idea as to who they need

14 to call. If you've got some more you want to add, I

15 mean, when will we know?

16 MR. EARL: May I give you an example? There is

17 this federal science subgroup, federal objective study,

18 that comes to a lot of major conclusions regarding the

19 over-riding impacts of hydro period on the Everglades

20 ecosystem.

21 I took the first deposition in that last week,

22 Mr. Hearing Officer, and identified several people,

23 including one we had not set down for deposition at

24 the Water Management District, Mr. Unsel, who actually

25 drafted that report. He's got to be set down.

1 In addition Mr. Scheidt, who we had been previously

2 deposing in this case, I learned was an author of one

3 of the sections of that report and is their expert

4 on Water Conservation Areas, so he needs to be deposed

5 on that. He was not deposed on the conclusions in the

6 report.

7 Those are two examples. He's already on the list.

8 Mr. Unsel is an example.

9 If he provides the testimony I believe he will,

10 I may have to add him.

11 We are dealing again with agencies with

12 hundreds of employees, hundreds and hundreds of

13 employees, Fish and Wildlife, South Florida Water

14 Management District, the DEP, the National Park Service,

15 and as I told you the federal study which just came out

16 January 15th is a major development. They admit for the

17 first time that hydro period is a major impact on

18 the Everglades ecosystem, and we've got to pursue that.

19 That is one specific example where we may have other

20 witnesses.

21 HEARING OFFICER: Well, as I have said several

22 times, we can't lose sight of what is at issue in this

23 particular proceeding, which is the March 1st, 1992,

24 SWIM plan or March whatever, 1992, SWIM plan. That's

25 what I'm going to have to write my recommended order on.

1 It's not going to be on the federal task force report,

2 etcetera.

3 So, you know, I didn't, as I indicated, I will give

4 you some leeway to explore some of those issues for

5 purposes of any inconsistent statements, etcetera, whatever

6 you may need, but I don't want to get into a position

7 where we're trying the federal task force report as part

8 of the litigation in this.

9 MR. EARL: No, sir. If I may, I didn't make myself

10 clear.

11 The importance of the federal task force to the

12 SWIM plan at issue in this case is the primary legislative

13 mandate under 373 is the SWIM has to do two

14 things. It has to cure water quality problems, and

15 it has to have strategies to cure hydro period,

16 actually restoring the Everglades hydro period, is what

17 the Legislature said.

18 We have told them from day one in letters,

19 appearances before the Governing Board, that you can't

20 take one little issue, which is a big issue, which is

21 water quality, and pull it out of context and deal with

22 it, which they are trying to do in the SWIM plan, and

23 they have always said, "We can do that in isolation,

24 and it's no problem," and that's what they did with the

25 SWIM plan.

1 This federal report is so important because some

2 of the very same people who were involved in that process

3 now say and admit in there that the dominant impact

4 on this ecosystem, sometimes over-riding impact,

5 is the hydro period that we're talking about.

6 Water made this system, and you have to change the

7 water to change the water problems in the Everglades.

8 HEARING OFFICER: Mr. Earl, I understand the point

9 you're making, but I'm trying to say that for purposes

10 of this proceeding and the recommended order that I have

11 to write, I think you have to keep in mind how you

12 bring that within this framework, and as I said, you

13 know, if there are witnesses who prepared the SWIM

14 plan at issue in this case and also served on the task

15 force, then I think you can explore some of those

16 issues, but when you talk about witnesses who may or may

17 now know anything about this SWIM plan I just don't know

18 how much we need to get into that.

19 I don't know how you're going to tie it back to the

20 issues in this case.

21 MR. EARL: It ties back to the fact, and we will

22 brief it, but it ties back to the fact that hydro period

23 is the dominant issue, and these are admissions against

24 interest.

25 MS. PONZOLI: Mr. Menton, I really think I can

1 understand Mr. Earl is focused on this and has been for

2 six years now, and he's got ahold of something, and

3 he's not going to let go.

4 We have given him one deposition. It was pointed

5 out to him in that deposition that that committee convened

6 and assumed that the mediated technical plan would be

7 in place if water quality issues were addressed, and

8 they were looking at hydro period.

9 I think the proceed down this rabbit trail is a

10 waste of time. I can show you a deposition schedule

11 that has days where up to seven Ph.D. witnesses are

12 being deposed at multiple locations for extended periods

13 of time.

14 I think I'm not going to say no to an individual

15 deposition, because one more deposition here or there

16 in this schedule isn't the end of the world. It's the

17 pursuit of this that is a problem and the additions of

18 witnesses.

19 But I'm not going to agree about Mr. Scheidt. He

20 has been deposed before.

21 If you want me to file an affidavit on the federal

22 task force and try to put this to bed I could do that.

23 I think we are wasting time. I think the

24 deposition showed that. I think that Mr. Earl can

25 characterize it any way he wants. The deposition did

1 not show his characterization.

2 HEARING OFFICER: Well, this comes back to some

3 of the things we have talked about before.

4 I'm not going to get into telling the parties

5 how to conduct their discovery so long as it's within

6 the parameters of what discovery is, and that's something

7 that could reasonably lead to evidence that would be

8 admissible at the final hearing.

9 Then I can see where there are some aspects of the

10 task force report as I understand what it is and what

11 it deals with that could be relevant, particularly

12 with respect to witnesses who may have been involved in

13 both, if there are any. I don't even know if there are

14 any.

15 Certainly if there are, then it may be useful to

16 at least inquire as to their role in the task force

17 report and whether the conclusions they reached as

18 a result of that are different than the conclusions

19 they reached in the preparation of the SWIM plan.

20 So that's why I have allowed Mr. Earl some leeway

21 in this regard, but what I said at the hearing before and

22 what I want to reiterate is when we start talking about

23 witnesses who are distantly removed from the SWIM plan

24 that's at issue in this case, I don't know that you are

25 going to be able to tie that into the issues we're

1 going to have to deal with ultimately.

2 I understand your theories about hydro period,

3 but I don't think that you do that by taking federal

4 task force report witnesses whose job may have been

5 totally unrelated to the planning process. You may have

6 your own witnesses who can testify to the conclusions

7 that were reached, and I just don't know how much we

8 need to go off on on some witnesses that weren't

9 involved in the SWIM planning process.

10 That's the point that I was trying to make before

11 and reiterate again today.

12 MR. HYDE: Mr. Menton, I think we may have strayed

13 a little bit from what I perceived the real purpose of

14 this list of adverse witnesses.

15 I think it's real important to remember that the

16 petitioners, and I include the Coop and the fruit and

17 vegetable people, as well as the League in this, are

18 still learning an awful lot about this SWIM plan.

19 We are discovering aspects in the discovery

20 process, and we have come up with what we think are some

21 very good and substantial and for the proponents of the

22 plan some very damning testimony.

23 We trust it will continue during the discovery

24 process, and as it occurs, it may well be appropriate to

25 list one of those people as an adverse witness here.

1 That is the primary purpose for which we make this

2 list available.

3 HEARING OFFICER: Mr. Hyde, I think you brought us

4 back to the point that started all this, and that has

5 to do with listing at the end of other adverse witnesses

6 who may be identified during discovery, and the reason

7 why I brought this up is that I want to make it clear

8 that I'm not going to be amenable to simply adding

9 names on because you heard them during discovery for

10 the first time.

11 I'm going to want to understand before I agree

12 to others being added to this list that they could not

13 reasonably have been discovered beforehand and

14 listed, because I don't want this process to turn into

15 a never ending supplementation of the witness list.

16 The reason we have been going through this exercise

17 is for everybody to get down to the bottom line and

18 list who they intend to call as part of their case.

19 We are far enough along the process where we should have

20 a pretty good grasp on that.

21 But before you go adding new names to this list

22 you are going to need to demonstrate to me the necessity

23 for doing so, and that's the point I want to make.

24 MR. HYDE: I don't think we have any difficulty

25 on that.

1 MR. REID: Could I make a request, and that is you

2 enter an order that stops the listing as o, say,

3 today, the lists that have been filed, with the right

4 to add if good cause can be shown?

5 We are in this never-never land of not knowing what

6 we can do, and it seems to me we need to have a

7 deadline that stops it.

8 I understand there are some people who take the

9 position we're not still operating under the original

10 order that had limitations and cutoffs and all that,

11 but I would suggest that we need a cutoff, and I'm

12 willing to say today, and then if I come up with something

13 later...

14 HEARING OFFICER: That was going to be my bottom

15 line when we finally got to the end of this process,

16 and that is I assumed as a result of the exercises we've

17 been going through, number one, that all known witnesses

18 have been disclosed at this point, and I was going to

19 ask both parties to do what Mr. Earl did here and the

20 respondents have done, to consolidate all their

21 witnesses together and make sure we have them on the

22 list, and there are no additions to this list without

23 coming to me beforehand and telling me.

24 That's what the bottom line out of this process

25 was going to be.

1 MR. GREEN: May I speak to that? We've got a

2 problem, and I want to bring it to your attention,

3 relating to Mr. Scheidt and relates to the respondents in

4 this case. It relates to list number one.

5 Based on our information and belief, employees of

6 the federal government, the Water Management District,

7 and DEP have taken steps to force our mercury experts out

8 of this case, to conflict them out.

9 Basically any expert that is world class is going

10 to have contracts with different folks. I will not go

11 into details, because maybe life is like that. I'm not

12 implying that anyone has done anything improper. I hope

13 not. It may turn out they have. We hope we will find

14 out.

15 What that means is Mr. Gherini and Dr. Pollman

16 may be forced out of this case because of efforts taken

17 by respondents' employees to get them out of the case.

18 I would not be too concerned about that, except that

19 Dr. Pollman has been working on this case since 1989.

20 He's our prime technical coordinator. I would not be

21 too concerned about it except that mercury is a big

22 issue, and you remember I vociferously resisted the

23 mercury issue when we first started, because I thought

24 it was irrelevant.

25 The United States went into private property to do

1 sampling, and we resisted that, and we wasted a lot of

2 your time talking about protective orders and so forth.

3 They had a theory that phosphorus enrichment

4 basically made the Everglades' mercury problem worse, and

5 Dr. Jones testified to you as a part of that entry

6 effort that the United States was seeking. And he

7 said he was going to have his hypothesis tested out.

8 We learned in his deposition he hasn't been asked

9 to analyze his data. When I say analyze, I mean

10 interpret it. He's got data.

11 We don't have all his data yet. We tried to

12 have a simultaneous exchange, and we still haven't

13 gotten it all. We don't know why.

14 Again I'm not impugning anybody's integrity,

15 but we don't have it, and the deposition is over.

16 Hopefully we will be able to finish it.

17 But we are very concerned, because the best judgment

18 of the people we've been able to bring to bear on this

19 case is that the mercury problem in the Everglades

20 has totally been misdiagnosed, that the SWIM plan will

21 make it worse. That's our best judgment based on

22 what we have seen.

23 And at the same time we find that our mercury

24 experts are being conflicted out of the case by the

25 government. That causes us grave concerns.

1 MR. REID: Could we find out how we are conflicting

2 them out? I mean, I haven't seen any pleadings on

3 this.

4 MS. PONZOLI: Some of us don't know what you're

5 talking about, so your insinuations and innuendoes

6 are...

7 MR. GREEN: No, no, no. Wait a minute.

8 HEARING OFFICER: Let's stop for a second. I

9 think that there are some underlying...

10 MR. GREEN: Here's, let me tell you where I'm

11 getting. We may have to find two mercury experts.

12 I want to protect my clients' rights to due process.

13 We are pushed as far as we can in this trial, and

14 we understand that. That's your job, Your Honor.

15 We're trying our best to get there, with everyone

16 else.

17 But we're saying right now we have cause for

18 replacing Dr. Pollman and Mr. Gherini, because they are

19 conflicted out in the last week or two.

20 MS. PONZOLI: How are they conflicted out,

21 Mr. Green? I think you need to be explicit and fair

22 with all of us. Tell us what the conflict is.

23 HEARING OFFICER: I think they are entitled to know

24 that at some point, because as I have indicated all

25 along if for some reason there has to be a substitution

1 of witnesses, if one of these witnesses drops dead

2 tomorrow or something and you need to substitute,

3 then that's fine, and I will not have a problem with

4 that, but I am going to want to know the reasons

5 before I will allow substitution.

6 MR. GREEN: Okay. Well, what I know at this

7 point is that Mr. Jerry Stober, Dr. Tom Atkeson of DEP,

8 Jerry Stober of EPA, Larry Fink of the Water Management

9 District are involved in other projects involving

10 mercury in Florida, and I am told by sources that I

11 believe are reliable that...

12 MS. PONZOLI: Who are the sources? You need to be

13 candid here.

14 MR. GREEN: I'm not being cross examined,

15 Ms. Ponzoli. I would appreciate it if you would stop

16 interrupting me.

17 HEARING OFFICER: Let him finish.

18 MR. GREEN: I am trying my best.

19 HEARING OFFICER: Let's have him have his say, and

20 then I'll make a judgment as to whether we need more

21 information at this time.

22 I'm again not sure it's ripe for today. If you

23 find yourself in a situation where you need to

24 substitute witnesses, I have always left that option

25 open, but I am not going to do it simply on the face of

1 a motion. I will want to know why.

2 MR. GREEN: And that was my understanding, because

3 I didn't want to wait until later.

4 Dr. Scheidt, who Ms. Ponzoli has said she would

5 resist the deposition of, is a person who was involved

6 in the E-map study of the Environmental Protection

7 Agency data we just got in the past seven or eight

8 days, which we believe confirms our theory.

9 That is a very important deposition. He's never

10 been deposed on mercury. We would urge you to rule on

11 that if necessary today, so we can get on with that

12 deposition.

13 Those are my only two point, Your Honor. Pollman

14 and Gherini need substitutes on mercury, and we do

15 need to get to Mr. Scheidt.

16 MS. PONZOLI: May I speak?

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

18 HEARING OFFICER: Let me just make sure I understand.

19 Are you telling me now that you need a substitute for

20 Pollman and Gherini...

21 MR. GREEN: On mercury.

22 HEARING OFFICER: ...or are you still not clear

23 as to whether or not they will be conflicted out or

24 not?

25 MR. GREEN: They are conflicted out.

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

2 Dr. Pollman set for deposition all next week. Is he

3 only being pulled on mercury, or is he being pulled on

4 mercury uptake and every other matter for which he has

5 been previously designated by the Coop? We need to know

6 that. We are starting a deposition Monday morning.

7 MS. PONZOLI: We would still want to do him on

8 mercury.

9 MR. GREEN: I think you should. He'll tell the

10 truth.

11 MS. PONZOLI: Dr. Jones told the truth.

12 MR. GREEN: Did I say he wasn't telling the

13 truth, Ms. Ponzoli?

14 HEARING OFFICER: Come on. We don't need this.

15 I'm not clear on the answer to that. Are they

16 withdrawn for all purposes or simply on mercury issues?

17 MR. GREEN: Mr. Gherini is out of the case on

18 mercury. Dr. Pollman it is my understanding is out

19 of the case on all issues, and it's just a question

20 of transition.

21 HEARING OFFICER: So that the deposition scheduled

22 for Dr. Pollman next week will not go forward?

23 MR. GREEN: I think it should go forward. His

24 work, he will have done work we will introduce in

25 evidence one way or the other, yes, sir.

1 HEARING OFFICER: Okay. So you are saying he

2 will not be called live as a witness, but you are going

3 to use his work?

4 MR. GREEN: Well, he hasn't, yes, sir, he said a lot

5 of his work is complete on phosphorus, and to the extent

6 that he's been allowed to formulate opinions on mercury

7 up to this time we reserve the right to call him, but

8 we need an interpretive expert on mercury, and we have

9 been denied that because of conflicts.

10 HEARING OFFICER: Okay. I'm having a hard time

11 understanding what you're saying, Mr. Green.

12 Are you saying he's been withdrawn as a witness,

13 but you're still going to use some of his work, especially

14 on phosphorus and even mercury? How are you going to

15 get his work in if he's not going to testify? Will you

16 be looking for a stipulation?

17 MR. GREEN: We will subpoena him if necessary.

18 Let me try again.

19 HEARING OFFICER: Okay.

20 MR. GREEN: It's hard for me to explain, because

21 we've been involved in this for a long time.

22 On phosphorus, most of his work is completed. I

23 hope it will be completed by next week, and he'll be

24 fully deposed on it.

25 He was to interpret mercury results of the entry

1 that's just been completed a week or two ago.

2 HEARING OFFICER: The ENP?

3 MR. GREEN: ENR and the Holey land and

4 Water Conservation Area 2-A. Because of a concern about

5 conflicts raised by employees of the Department who

6 I mentioned, and I'm not, please don't misunderstand

7 me, I'm not trying to impugn anyone's motives or

8 anything else, but a conflict was raised. He said, "I

9 can't do mercury." I filed a new witness stipulation

10 that said Mr. Gherini would be doing mercury. Now

11 Mr. Gherini has been conflicted out of mercury, on

12 interpreting the mercury data, so we need someone to

13 interpret the mercury data.

14 And to the extent there is any further work,

15 rebuttal work or response to discovery on phosphorus,

16 we need another person.

17 HEARING OFFICER: All right. Is Mr. Pollman

18 still going to testify on phosphorus research?

19 MR. GREEN: Yes, sir.

20 MR. REID: I thought you said he is out on

21 everything?

22 MR. GREEN: He's out of any further work, but his

23 testimony will come into this hearing whether it's

24 voluntary or subpoenaed. It isn't all of it.

25 He's been in this case for a year and a half, two

1 and a half years, however long it is.

2 MR. FITZGERALD: I'm unclear on something, and

3 it's probably a reflection of my ignorance, but

4 as I recall Mr. Gherini is not based or living in any

5 of the areas that would fall within the reach of the

6 subpoena rule for this proceeding, so how is he

7 involuntarily dragged in to testify?

8 MR. GREEN: We're talking about Pollman.

9 HEARING OFFICER: Anybody can be subpoenaed for a

10 deposition.

11 MR. GREEN: Right.

12 MR. FITZGERALD: I thought he was in Atlanta. I'm

13 talking about testimony at trial. He said he's going

14 to have his testimony. He said he's conflicted. Of

15 course, obviously he wants it both ways. Now we're

16 hearing this Friday afternoon.

17 The mercury materials or the people he's talking

18 about from the agencies, and I don't know what their

19 involvement is in this or what we'll hear at hearing,

20 but I know certainly Mr. Scheidt at EPA, and the EPA work

21 that is being done has been done on mercury and was

22 something Mr. Green cited you well over a year ago,

23 the fact they were doing the study. I'm having a little

24 trouble getting this all together in a time frame

25 that makes sense.

1 I don't understand if Mr. Pollman is out because of

2 a conflict how he gets dragged in as a witness at

3 hearing and how that impacts what we do next week.

4 MS. PONZOLI: May I address the mercury issue?

5 He raised it first.

6 If I had my mercury case ready to present to you,

7 I would present it to you, because it is a very

8 important case in Florida, and it is linked in our view

9 to phosphorus, and our witness said so for two days.

10 We did not have that case ready for you. It is

11 not ready. Massive amounts of research are being done

12 on this issue, but I allowed discovery when they asked

13 for my experts' documents, who they knew Dr. Jones was

14 doing work, and I gave them discovery, and if there's

15 a piece here or a piece there that they didn't get that I

16 think they have, I will give it to them again.

17 I just want you to understand, because things

18 have been alluded to that are very important.

19 I have not said that I am presenting an affirmative

20 case on mercury, and yet my mercury sat through two

21 solid days of questioning on every thing he ever had,

22 but I don't have any idea, what I want you to understand

23 is we don't know what their mercury case is, what the

24 misdiagnosis, what the big issue is. They haven't told

25 us.

1 HEARING OFFICER: Well, this is why we need to

2 go through this process, because we need an understanding

3 of exactly what it is that's going to be offered on

4 both sides of the fence here at the final hearing.

5 Dr. Jones testified back when we went through

6 the process of determining whether there would be

7 access to the EAA, he went through some discussion

8 as to what his hypothesis was about the methylization

9 of mercury or phosphorus into mercury, whatever.

10 But at that point in time I was certainly under

11 the impression that that theory could very well come

12 into this case.

13 MS. PONZOLI: And if I had it ready I would give

14 it to you.

15 HEARING OFFICER: If it's not going to be offered,

16 I mean, certainly some time based upon the way

17 Dr. Jones' presentation went at that hearing, I was

18 under that impression, and I would have thought it was

19 ripe for discovery, too.

20 MS. PONZOLI: It was ripe for discovery. Just

21 because something is ripe for discovery, I don't think

22 it means it is ripe for presentation at trial.

23 HEARING OFFICER: Okay. Well, that's fine.

24 That's what I want to get clear your understanding on,

25 because if it is not going to be presented at trial then

1 we need to have that communicated so that I'm aware of

2 it and so that other parties are aware of it, so that

3 they don't have to spend two or three days...

4 MS. PONZOLI: He knew that. It is his issue he

5 is bringing to trial, but he won't tell us what the

6 issue is, how he intends to present mercury at trial,

7 and I have told him repeatedly, but this is important,

8 Mr. Menton, in regard to Mr. Scheidt's deposition,

9 in regard to Mr. Stober's deposition, and in regard to

10 a whole lot of mercury work that he wants to do,

11 tell me where we're heading with this, and I will not

12 resist it.

13 HEARING OFFICER: I have heard some allusions on

14 his part that the establishment of the STAs may

15 actually exacerbate the mercury problem. Exactly

16 how that occurs from a scientific standpoint I don't

17 know, but I have gathered from some of the statements

18 he has made throughout the course of this proceeding

19 that's what he was looking to establish.

20 MR. GREEN: That's correct, Your Honor, and there

21 is an additional element of this case that we basically

22 believe that Dr. Jones' hypothesis is backwards.

23 Based on available information, and we're still

24 taking in data, that if you reduce phosphorus you are

25 going to increase mercury in fish in the Everglades, and

1 if that's true, and I'm not saying it is, but if

2 that's the case, then the best information, the whole

3 plan doesn't make any sense.

4 MS. PONZOLI: Would you tell us which expert has

5 that theory, so we can depose him and have some study?

6 I think that's very important.

7 MR. GREEN: I suggest you talk to Mr. Pollman.

8 MS. PONZOLI: We are deposing him Monday.

9 MR. GREEN: That's right.

10 MR. KILLINGER: Can I jump in? I think there

11 were some statements by certain parties, and I have to

12 object, about people attempting to conflict someone out.

13 I think if someone has a conflict, and I don't

14 know the details of this, but if somebody has a

15 conflict, it's one which exists, and I don't know that

16 it's appropriate to be assigning intent to anybody else

17 about the use of a conflict to accomplish a specific

18 goal. I don't think it's appropriate to allude to it.

19 It may have been recounted that it happened, but it

20 started off...

21 MR. GREEN: I'll accept that clarification. I agree

22 I did. Thank you.

23 HEARING OFFICER: All right, well, let's see where

24 this leaves us. As I understand it then Dr. Pollman

25 is scheduled for deposition next week. Mr. Green, you

1 are still reserving the right to present Dr. Pollman's

2 testimony through subpoena or perhaps through him being

3 called voluntarily on the phosphorus issue, but that

4 he will not testify on the mercury issue? Is that what

5 you're saying?

6 MR. GREEN: He might be subpoenaed on the mercury

7 issue.

8 MS. PONZOLI: Is Dr. Presley your new mercury

9 expert? He was at the deposition.

10 MR. GREEN: We have been trying to find in the lat

11 week and a half a mercury expert, and there are about

12 five in America we think, maybe six.

13 We have talked to Dr. Presley. We have brought him

14 on board. And he has a lot of capabilities in these

15 areas that are important, but we need an expert on

16 mercury cycling, and we had one, and we don't have him

17 any more.

18 HEARING OFFICER: Okay. Well, I think probably

19 the proper way to do this is go back to the idea

20 that the witness list is final. If there are any new

21 names that come up, then we need to bring those up

22 with an explanation as to why, and if one of them, the

23 reasons that he's being substituted for a witness who

24 developed a conflict late in the game, then that may

25 well be an acceptable reason, but we will need to

1 address that at the time it occurs, which should be

2 as soon in the process as possible.

3 MR. GREEN: Thank you, Your Honor.

4 HEARING OFFICER: I think that's probably the best

5 way to deal with it.

6 Now the second issue has to deal, had to do with

7 Mr. Scheidt or Dr. Scheidt. I don't know if he's a

8 doctor or not. I don't know that that's ripe for

9 discussion today, either.

10 As I understand it he's been deposed once. Are

11 you suggesting, Mr. Green, you want to go back and

12 depose him a second time? Is that what you're saying?

13 Is he on the new discovery list that's been developed?

14 MR. GREEN: That's correct, Your Honor. I frankly

15 don't recall when he was deposed. I think it was quite

16 a while ago. Mr. Earl, do you recall?

17 MR. EARL: He was deposed, his deposition was started

18 a long time ago, no, that was in the federal lawsuit.

19 He was deposed...

20 MS. PONZOLI: In DOAH. He was deposed well before

21 the state.

22 Why don't we do their mercury people, Mr. Menton,

23 and if it's appropriate to do Mr. Scheidt, I'm not going

24 to resist it. One deposition, I keep trying to tell

25 you one deposition is not the end of the world. We have

1 75 or 90 to go.

2 I think it's only fair that we see some of their

3 mercury. I think there is an extraordinary issue

4 of phosphorus related to increased mercury. Let's

5 do that a little bit, and if we have to present it to you

6 we will.

7 MR. FITZGERALD: By that measure the oligotrophic

8 process over the last 4,000 years the Everglades should

9 have been knee deep in mercury, and it isn't.

10 HEARING OFFICER: Okay. Well, the one other issue

11 that was raised in this discussion had to do with the

12 exchange of the mercury evidence, and I don't know

13 exactly where that stands.

14 As I understand it now the federal government is

15 conceding it will not be offering any as part of its

16 presentation in this case, so is that correct?

17 MS. PONZOLI: I will do it in rebuttal. If it's

18 something they are raising, I will do it in rebuttal.

19 MR. GREEN: Well, Your Honor, this is an interesting

20 development. I mean, you were persuaded to order us to

21 allow the United States to come into private land to

22 measure mercury.

23 MS. PONZOLI: Phosphorus, too.

24 HEARING OFFICER: And other things as well.

25 MR. GREEN: And we agreed I think two weeks ago to

1 a simultaneous exchange of those data.

2 We sent ours, and I'm saying we haven't gotten all

3 yet. There could have been a copyshop problem. I don't

4 know why we didn't. Ms. Ponzoli says she's as

5 flabbergasted about it as I am.

6 We don't have it yet. We would like it as soon as

7 we can get it, and I think we can work it out.

8 HEARING OFFICER: So there isn't a problem?

9 MS. PONZOLI: No, there is not.

10 HEARING OFFICER: It might have gotten lost in the

11 mail.

12 MS. PONZOLI: We maintain we gave it. We will

13 give it a second time, and there's some mistake.

14 HEARING OFFICER: All right.

15 MR. GREEN: Thank you.

16 HEARING OFFICER: I think the way we'll leave this

17 is if there are substitutions of witnesses that will be

18 brought up in terms of a motion, and we'll deal with

19 particular circumstances as they come up, and

20 Dr. Pollman's deposition we'll go ahead with next week.

21 Okay.

22 (WHEREUPON, THE HEARING WAS RECESSED FROM 2:28 P.M.

23 TO 2:40 P.M.)

24 HEARING OFFICER: Okay. Let's see if we can finish

25 up a couple of remaining issues that I wanted to do.

1 Now that we have two complete lists of witnesses,

2 as I understand it, based upon our earlier discussion,

3 has the discovery schedule been set up so that we've

4 got these people accommodated?

5 MS. PONZOLI: I guess a fair number of them have

6 been. There are still some on both sides.

7 HEARING OFFICER: But it looks like we're going to

8 be able to complete that sometime fairly soon here?

9 MS. PONZOLI: Yes.

10 HEARING OFFICER: Okay, so long as I know we're

11 making progress I guess there's nothing we need to worry

12 about.

13 The one other issue had to do with the finalization

14 of opinions, and the reason I wanted to bring that up

15 is I notice in the Coop's listing of witnesses that

16 there were some witnesses, mostly those regarding the

17 satellite imaging, but one or two other areas where

18 there's still some question regarding the date upon

19 which they were going to have their opinions finalized,

20 and I don't know if there was a problem with respect

21 to this or not, but I did want to bring it up to see

22 if we could head off a problem, and that is to make

23 sure that people have their opinions finalized at the

24 time of their depositions, so we don't have a situation

25 where people show up at depositions and are just wasting

1 time, and we have to go back and redo them all over

2 again.

3 So I assume since no one has raised that we don't

4 have a problem in that regard?

5 MR. FITZGERALD: Mr. Hearing Officer, I think by

6 and large we're getting by that. There appears to have

7 been a few instances where one or more of the people

8 being deposed are not absolutely, positively done,

9 but to some degree I think we're at the mercy of the many

10 Ph.D. witnesses and others who it's very difficult to

11 get them to say they'll ever really be done. I

12 suspect on the witness stand some of them will say they

13 are still researching through this.

14 MR. BURGESS: Your Honor, if I can say, too, I

15 think to a certain extent we are all at the mercy of the

16 District and others that continue to publish documentation

17 in support of the SWIM plan and the implementation of

18 the SWIM plan.

19 A couple of weeks ago I took the deposition of the

20 District Administrator in charge of the STA design,

21 and I had asked him at that time whether certain draft

22 reports had been prepared for the District, were they

23 ever finalized, and he told me, "No, but that's a

24 real good idea. I think I will go back to the office

25 and look into that."

1 Yesterday I go about three or four telephone

2 book thick size reports dated February 4, 1994, stock

3 full of data in support of the STA design in the

4 SWIM plan.

5 So I think as far as issues of the experts that

6 are looking at STA issues and design of STAs and

7 statistical analysis of flows and loads, that sort of

8 thing, I think I shipped it out by Federal Express

9 yesterday, so for some witnesses that are coming up

10 they are looking into that, and I can't represent

11 that their opinions are going to be final until we see

12 what, if any, changes there are in the document

13 that the District continues to publish with respect to

14 the STAs in the SWIM plan.

15 HEARING OFFICER: Okay. Well, I didn't bring this

16 up to create an out for anybody at this point, but I

17 brought it up to make sure that we avoid having these

18 problems to the extent possible, so if it needs, if

19 it's appropriate to either move depositions around so

20 we can avoid having to take people twice or whatever,

21 then we'll try to make those accommodations, but I

22 just noted in reviewing some of those documents that

23 there were still some witnesses who apparently have not

24 finalized their opinions, and I want to make sure that

25 their opinions are finalized at the time their depositions

1 are taken, so we don't have people changing their minds

2 at the final hearing.

3 MR. BURGESS: I brought it up in contrast to

4 the earlier discussions. The reason the witness gave for

5 not finalizing documents, etcetera, was the District

6 reverted to the mediated plan.

7 Our consultants, too, to a certain extent during the

8 context of the mediated plan and the discussions and

9 the technical plan, their efforts were focused on

10 that, and now the District has promulgated additional

11 documents back in support of the SWIM plan, where they

12 were originally, and we have to look at those.

13 So it's somewhat problematic, but we are looking

14 into it as fast as we can.

15 HEARING OFFICER: Okay. The next issue I wanted

16 to at least bring up has to do back in with some of these

17 stipulations, foundation witnesses.

18 We had also discussed stipulations regarding

19 permitting cases, and how we were going to handle that,

20 and this is sort of the ongoing matter that still

21 hasn't been concluded as to how we're going to handle

22 it.

23 The witness list that w have now in the statement

24 of issues that we exchanged, all those relate to the SWIM

25 plan, and I understand it. There also had been some

1 discussion of the overlap with respect to witnesses and

2 issues in connection with the permitting case.

3 We had discussed the possibility of a stipulation

4 that rather than having to recall those witnesses that

5 that evidence could simply be considered as part of the

6 permitting case.

7 As the parties are exchanging stipulations regarding

8 foundation witnesses, I hope we can come up with some

9 language with respect to that as well.

10 We need to give some thought as to how we will

11 handle the permitting cases. I think I indicated last

12 time that I don't believe it's appropriate to formally

13 consolidate them, since the, I have to do separate

14 recommended orders as I look at it. I would have to

15 do a recommended order on the SWIM plan and one on the

16 permitting plan as well, so it's probably better to keep

17 them formally separate in terms of when we would schedule

18 the permitting case.

19 My assumption has been that since the witnesses and

20 issues that we are exchanging now really only relate to

21 the SWIM plan case that the permitting case we'll have

22 to deal with subsequent to the completion of the

23 SWIM plan case and schedule that separately.

24 I raised that simply for purposes of trying to

25 address the appropriate stipulation along those lines.

1 What I have not reached a conclusion on is

2 whether or not we set the permitting case for hearing

3 after we complete the entire process on the SWIM plan

4 case. In other words, do we do a recommended order

5 on the SWIM plan case and go to the permitting case, or

6 do we simply take all the evidence on the SWIM plan

7 case, take a little bit of a breather, and then go to

8 the permitting case and try to do both orders

9 simultaneously at the end?

10 I'm open to suggestions regarding that, and maybe

11 you have a better feel for what's going to be involved

12 in the permitting case at this time.

13 MR. GREEN: Mr. Menton, one, I had not really

14 thought through this, but I would just make the

15 observation that the Douglas Act requires the permit

16 to be consistent with any plan that may be adopted,

17 and if we could isolate those parts that if there are

18 any that are left over, it may be that the permit is

19 a non-entity after the plan, and whatever comes out of

20 the plan if there is a plan, the permit automatically

21 has to be consistent with it.

22 There may be some boiler plate or other areas that

23 we could isolate that might not fit into that category,

24 but it might be pretty simple.

25 I don't know what you think about that.

1 MR. EARL: We would like to look at it and

2 address it at the next hearing.

3 HEARING OFFICER: Why don't we do that.

4 MR. EARL: If I may, have you given any thought

5 to dates and locales for the proposed hearings in terms

6 of scheduling?

7 HEARING OFFICER: Yes, the 25th obviously is the

8 date that we're looking at. Some of the, well, with

9 respect to the locale, I think that comes back to the

10 issue of the burden of proof, which I wanted to discuss

11 a little bit further as kind of our next issue here. Why

12 don't we move into that.

13 This comes up in the context of the preliminary

14 statement of issues that the various parties have

15 filed, as well as the overview filed by the League.

16 In that regard, as I noted, I have, I mean overview

17 by the District. As I noted earlier, I have received

18 a response from the League or objection from the League

19 in terms of the overview.

20 Let me simply state with respect to that objection

21 I think it is well taken in terms of the failure to

22 discuss with any detail the witnesses and the nature of

23 the presentation that would be presented, and that

24 may be a result of a lack of clarify on my part as to

25 what I was looking for and what I expected in that regard.

1 MR. REID: Which document are you referring to?

2 There are two documents we filed.

3 HEARING OFFICER: The overview.

4 MR. REID: Is it the overview of the statutory

5 compliance?

6 HEARING OFFICER: Right.

7 MR. REID: That's what you're talking about now?

8 HEARING OFFICER: Right.

9 MR. REID: We didn't understand you wanted witnesses

10 and so forth, because it's legal, we thought.

11 HEARING OFFICER: Because it goes back to really

12 this issue of the buren of proof, and what I was seeking

13 to get from the petitioners in that initial exchange of

14 documents, that overview was filed at the same time as

15 amended petitions were supposed to be filed.

16 What I was looking to try to get at that point in

17 time was an understanding as to what the District was

18 going to present as its prima facie case, as we have

19 discussed several times earlier.

20 I've gone back and tried to review the prior

21 hearings we had regarding burden of proof as well as

22 various memos that have been filed, and the new memo

23 that was field last week by the League that again raises

24 these burden of proof issues.

25 I spent a little bit of time trying to think through

1 this, and I think it's important, because it does

2 impact as to how we start the case, which will impact

3 on the locales and give everybody a better sense of

4 what to expect once we get going in the process.

5 The issue of the burden of proof is very

6 cumbersome on the one hand, and yet I'm not sure how

7 important it is in the long run when you get right down

8 to it.

9 It certainly raises some very interesting academic

10 questions in terms of what the proper way to approach

11 this is, and to be perfectly frank I don't think there

12 are any clearcut answers, given the rather unique

13 nature of this case and the way it was set up, as well

14 as some of the appellate decisions that have come

15 down that are not always quite as clear as those of us

16 who have to apply them would like. I didn't say that,

17 if this case is ever reviewed.

18 But the bottom line on this burden of proof issue,

19 we can spend a lot of time arguing it, and I really

20 don't think it's necessary to do that, because I don't

21 think it really changes that much in the long run.

22 As I have tried to articulate in the past, we

23 are in a very unique type of case, and the best way that

24 I can interpret the statutory directives that have

25 been given to me in terms of conducting a 120.57

1 hearing is simply as I have said before, the way to

2 apply it is simply to look at it from the standpoint

3 that the agency has proposed the SWIM plan. That is

4 the proposed final action of the agency.

5 So at that point in time or even though this is a

6 de novo proceeding, which is pretty well established in

7 the case law, that a 120.57 proceeding is a de novo

8 case, we are not in this proceeding but for the fact

9 that the petitioners have decided to challenge the

10 SWIM plan.

11 So consequently it seems to me that the District

12 theoretically could come in at the commencement of the

13 hearing and say, "This is our SWIM plan, and that

14 SWIM plan is the final agency action until it is proven

15 to be inconsistent with the statute or arbitrary or

16 internally inconsistent or whatever appropriate

17 standard is applied."

18 I had suggested earlier on in this case that it

19 would probably be helpful of the District at the

20 commencement of the proceeding to present an overview

21 of what the plan involved, as sort of a prima facie

22 case. Again I think technically all the District has

23 to do is come in and offer its plan, that that plan is

24 there until it's proven to be inconsistent.

25 As I mentioned earlier, in that regard some of the

1 suggestions in the latest memo that I have gotten

2 from the League I disagree with, the suggestion that

3 there is a vanishing presumption of invalidity or

4 the presumed invalidity of the plan is how it's phrased.

5 I don't approach this case from that standpoint at

6 all. I wanted to make that clear.

7 Getting back to the initial showing by the District,

8 what I had suggested before, even though technically it

9 may not be necessary, since the plan is the proposed

10 agency action, I think it would be helpful from my

11 standpoint certainly and probably from the standpoint

12 of anybody who might be reviewing this proceeding down

13 the line, for the District to come forward with a

14 prima facie showing of what they did, what's included

15 in the plan, why it's included, to give everybody an

16 understanding.

17 What I was hoping to get in this initial exchange

18 on January 28th was an idea as to what the District

19 would be offering in that regard.

20 And that would include a summary of the witnesses

21 and what they would be expected to testify to, and

22 obviously I didn't articulate that very clearly, because

23 that wasn't what I got back.

24 So from that standpoint I think the League's

25 objection was well taken, because I think that's what I

1 would like to see, and I think that's what the

2 petitioners are entitled to see, is to get some

3 understanding as to what this initial showing, what

4 the District intends to do at this initial phase of

5 the case, and I'm not going to tell you how you need

6 to do that. I'll leave that up to your discretion and

7 your call.

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

9 But I do think that you should give that some

10 thought and communicate to all of us exactly what you

11 intend to do, so that we can prepare accordingly.

12 Once that phase of the case is over, and I don't

13 know, the suggestion was also made in the League's

14 motion that all of the proponents of the plan, the

15 federal government, the state, and the conservation

16 groups, should be required to go forward at that point in

17 time with their evidence in support of the plan.

18 I don't agree with that concept. I don't think

19 that that is the way to approach this.

20 If those entities also wish to supplement the

21 presentation of the District at that initial phase, I

22 think they need to make that clear to everybody and

23 articulate exactly what it is they will be presenting

24 in that regard, but I don't think they have an

25 obligation to come forward at that point in time to

1 state why they are in support of the plan.

2 The plan is the plan until it is proven otherwise,

3 but after the initial phase and the way I view the

4 case we would move to the petitioners, who would then

5 present their evidence as to the aspects of the plan

6 which they believe are invalid for whatever reasons,

7 and then after all the petitioners have had an opportunity

8 to present their case in that regard then we would move

9 back to the proponents of the plan, and they would have

10 an opportunity to present a response to that, and then

11 the issues of surrebuttal testimony we will have to

12 deal with.

13 I don't, I hope not to get into a whole lot of

14 that, but it may be unavoidable to some degree.

15 So having said that I will give each of the

16 parties an opportunity to respond and see if that has

17 clarified somewhat the way I'm approaching this.

18 Mr. Hyde?

19 MR. HYDE: I respect the fact you have come to a

20 conclusion as to the order of the presentation we

21 presented was not appropriate.

22 I would like to urge you to revisit that conclusion,

23 because, well, let me just divorce myself for the

24 moment from the statutory, legal, rule reasons for doing

25 that. Let's talk about it in terms of practicality.

1 I think if you do the order of presentation as

2 you have just suggested, you have probably added a

3 great deal onto this proceeding, because it isn't

4 really going to help anybody get through this case if

5 the proponents of the plan can in effect hide their

6 case until after we, the petitioners, have put on ours.

7 HEARING OFFICER: But isn't their case the SWIM

8 plan?

9 MR. HYDE: That's correct. That is their

10 case, and we are challenging it.

11 But they are still the proponents of the agency

12 action, and under any logical way of looking at it

13 they should be required to put forth proof of that case

14 first.

15 You are in effect switching the burden there of

16 doing that. Maybe all they do is come in the first

17 day, have the Executive Director of the District

18 plop the plan and say, "That's the prima facie case,"

19 and then all of a sudden we start and do everything.

20 Then they put on their case.

21 I suggest to you that we're going to be putting on

22 a case that responds not only to the prima facie case

23 but also will have to put on a full-blown case to

24 respond to their case in chief, and their case in

25 chief is going to come after our presentation.

1 That means that we're going to have to have a

2 fairly substantial rebuttal, because there is going to be

3 a substantial difference of opinion on this proceeding.

4 And the issues that will be brought up in the

5 course of our presentation are going to be rebutted by

6 them, and they're going to bring up new issues, and

7 we'll have to rebut them in accord with the process

8 here, and you are in effect creating the very situation

9 that JWC counselled against so many years ago of

10 endless rounds of rebuttal and surrebuttal, and

11 I don't think that's appropriate.

12 The logical way of doing this is for the proponents

13 to put on their case, have the opponents put on theirs,

14 limited rebuttal, and limited surrebuttal.

15 Rebuttal would be limited to what's initially put

16 on by the opponents of the plan, and the surrebuttal

17 being limited to that rebuttal, and nothing more.

18 That is the custom so far as I can recall as

19 long, well, ever since I've been practicing administrative

20 law in Tallahassee. That's the way all administrative

21 hearings in my perspective are usually conducted.

22 I can think of very few exceptions, like the

23 Public Service Commission, which has its own peculiar

24 procedural rules.

25 But I have been involved in multi-party proceedings

1 down here for years, Certificates of Need, complicated

2 environmental litigation like this, and it's the way it

3 always goes.

4 HEARING OFFICER: I have been involved in a lot

5 of those cases, too, and the approach that I'm suggesting

6 is not unique, because I have done it in a lot of

7 different circumstances.

8 It comes up with growth management cases, and I

9 have done it in special education cases, where there is,

10 special education cases is a classic example.

11 A very different type of setting, but essentially

12 the way those cases are set up is that the School Board

13 proposes a particular placement for an individual.

14 That placement stands until such time as the parents

15 can demonstrate it's not an appropriate placement for

16 the child.

17 And then what I have always done in those cases is

18 I have given the School Board an opportunity to come

19 forward and explain to me what their placement for the

20 child is, simply so I have the whole thing in context,

21 so when I listen to the presentation from the parents

22 as to why placement is inappropriate I have something

23 to evaluate that on, and then after the parents have

24 presented their case the School Board has an opportunity

25 to respond. That's exactly the type of scenario I'm

1 talking about here.

2 We can spend a lot of time arguing it, and I

3 really don't know that it makes a lot of difference, in

4 the long run. I really don't.

5 I think that the District, if I was representing the

6 District I would certainly take the opportunity to go

7 first and put everything in context, so that whoever

8 was deciding the case would understand exactly what

9 was being proposed, so that they could make some sense

10 of all the evidence as it came in.

11 I'm not trying to tell you how to present your

12 case, but that's certainly the way I would look at it.

13 I think when the District comes back in or the

14 proponents of the plan come back after the petitioners

15 have presented their case, I'm not going to let them

16 get into some aspects of the plan that haven't been put

17 at issue by the petitioners.

18 So I think we avoid some of the problems you are

19 talking about. The response that comes after the

20 presentation of the case by the petitioners will be

21 directed solely to those things that have been raised

22 by the petitioners as part of their case in chief.

23 MR. HYDE: Well, let me ask you to clarify a few

24 things.

25 We claim, for example, that there are certain

1 statutory prerequisites that simply have not been met,

2 and there is no way we can prove that other than to

3 say there is no proof of them. It's hard to prove a

4 negative.

5 I would expect the District in its case in chief,

6 whatever you want to all it, prima facie demonstration,

7 would put on some minimal showing about how it complied

8 with the statute and the statutory directives.

9 Are you going to treat their rebuttal case as a

10 way of coming back and reinventing that portion of the

11 case?

12 HEARING OFFICER: Well, we're talking in the

13 abstract, so it's hard for me to fully know how I would

14 deal with a situation.

15 Again I would have to see the context in which

16 these issues arise, but if the District in its original

17 case, say they call the Executive Director of the Water

18 Management District to testify as to what they did.

19 Certainly during cross examination you could bring out

20 some of the points you were talking about and some of the

21 issues would be laid out.

22 If they don't call a witness to bring out those

23 points, then I would assume that you would as part of

24 your case in chief call as an adverse witness whatever

25 District employees would be involved or to at least bring

1 forth some demonstration, maybe through stipulation or

2 through an adverse witness, the point that you're

3 seeking to make, and that way the record is complete

4 with evidence you think you need to make the point.

5 In response, certainly the District would have an

6 opportunity to either as legal argument in its proposed

7 findings, I mean proposed recommended order address the

8 sufficiency of what they did or to bring on additional

9 witnesses to respond to the particular issues that you

10 raised through adverse witnesses or however.

11 MR. HYDE: I understand it a bit better now, but

12 it doesn't address an additional concern, which is that

13 under that scenario, that order of presentation, you

14 are still effectively going to be requiring us to put

15 on two cases in chief.

16 We will put on our initial case in chief, and

17 then we'll have to put on one in rebuttal of the case

18 that has been hidden from us up to that point, and it

19 will really impose a significant burden on us, and

20 it will clearly lengthen the time of the proceedings.

21 Because the initial case will have to be pretty

22 substantial, one would think, in order to cover all the

23 ground that we think ought to be covered. They will put

24 on the rebuttal to that, and that will be a very

25 significant demonstration on their part, much of it new,

1 much of it totally different from what was previously

2 put on in the prima facie case, and we would have a

3 very substantial rebuttal case to the response they put

4 on.

5 You are asking us in effect to try two cases here,

6 and I think that experience has taught us in many

7 multi-party proceedings over the years, at least in my

8 experience, that kind of organization really doesn't

9 serve the purpose of expediting a proceeding.

10 You are going to lengthen it, and I think it is

11 important to consider that factor.

12 The reason we suggested this particular scenario

13 of proponents, opponents, the proponents rebuttal,

14 limited surrebuttal, is that's the way it typically

15 works in the best way to limit the length of the

16 proceeding, to ensure the issues are fairly raised and

17 to ensure that no party gets an edge on another, and

18 most of all to have or avoid the situation the JWC

19 cases counselled against, which is big cases, unlimited

20 rebuttal and surrebuttal, on and on an don into the

21 future.

22 I think you're going to experience that if you do

23 this.

24 HEARING OFFICER: Well, I don't know that there's

25 any way to avoid some rebuttal and some surrebuttal.

1 I expect that, to be perfectly honest, from the nature

2 of this case and the way it has happened. I expect that

3 to occur.

4 I have already I think mentioned several times

5 that I will take a strict view as to what constitutes

6 rebuttal and surrebuttal. I think that's the best way

7 that I can get a grasp on it.

8 I simply disagree with you that this is going to

9 lengthen the proceeding. In my experience I think it

10 has proven to be the most efficient way to handle it,

11 and, you know, every Hearing Officer probably has

12 different results, but certainly that has been my

13 experience in growth management contexts and special

14 education cases and several other areas where I have taken

15 this same approach.

16 MR. HYDE: I can't speak to special education type

17 cases, because I really have no familiarity with them,

18 but when you deal with growth management you're dealing

19 with an entirely different statutory scheme that

20 invests in the agency action, the local government, a

21 substantial deference, which is not present here.

22 If you look at the burden of proof that is

23 articulated in 163, they very clearly favor the local

24 government's adopted plan or amendments to the plan or

25 regulations adopted pursuant to the plan. That's not the

1 case in this context.

2 HEARING OFFICER: I understand that there's a

3 difference statutorily in terms of the recognized

4 standard of deference to be given to the local

5 government.

6 But I also think that, you know, it's difficult to

7 find anything to completely compare this to. I tried

8 to analyze it to CON cases.

9 Those are just different settings where you have

10 a third party applying for a license, such as the DER

11 in permitting cases. I think it's just different

12 scenarios than when you have a state agency, a Water

13 Management District, that is directed by statute to

14 adopt a plan to address a particular issue, and that

15 plan is valid unless it's challenged. I mean, that plan

16 goes into effect unless it's challenged.

17 It's not like a CON where somebody automatically

18 has a CON. I mean, there is an affirmative showing

19 you have to meet in order to obtain a CON or a DER

20 permit.

21 In this case the plan adopted by the Water

22 Management District is valid until a challenge is

23 filed, and then, you know, I think we get into the

24 hearing process, and then...

25 MR. HYDE: This will be my last comment on this.

1 I don't want to unduly belabor it.

2 I really don't see a DEP permit or other type of

3 permit is any different from this case.

4 Those permits go into effect if they are not

5 challenged, also.

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

7 That's the whole point of it. It's intended or

8 proposed agency action. If nobody challenges a DEP

9 permit, it's final. No hearing no nothing. It's in

10 effect.

11 That would have been the same case here. If the

12 petitioners hadn't filed a challenge to this SWIM

13 plan, it would be final and in effect right now.

14 So in that case I think the analogy breaks down.

15 I really think they are substantially similar, and if we

16 look to the permitting cases or to the enforcement

17 cases we almost always see, and I can't think of very

18 many contexts where we don't, and I don't have the

19 experience with the special education cases, but we

20 always have the proponents of the agency action going

21 first, and the typical permitting case an applicant

22 has the burden under a long line of cases of demonstrating

23 entitlement. The applicant goes forward.

24 In an enforcement case if you could analyze it,

25 it does bear substantial similarities to it, certainly

1 the enforcing agency goes first.

2 One you establish those basic parameters, the

3 applicant goes first, and the applicant is clearly the

4 District, or if it is the proponent or the enforcer,

5 then it would be the District, once you establish

6 the basic principle, then the logical thing to do

7 is to group proponents and opponents together.

8 Otherwise you will have a scatter-shot approach.

9 HEARING OFFICER: What does the, what if the

10 federal government comes in and offers evidence? The

11 District is going to come in and offer the plan. What

12 does the federal government or the state government

13 or what do the environmental groups offer as part of

14 their case in chief?

15 MR. HYDE: Very quickly, we are going through a

16 very extensive discovery process. We have articulated

17 some pretty substantial issues. They are delineated

18 in our proceeding, in our petitions, and we have I would

19 presume a stipulation of some sort which does that,

20 too.

21 HEARING OFFICER: So you're suggesting they come

22 forward and prove why our case isn't correct before

23 you even have the opportunity to present the case?

24 MR. HYDE: They have made various accusations.

25 Let's look at water quality violations. That's a central

1 part of the case.

2 They have said there are violations of several

3 water quality things, like dissolve oxygen,

4 biological integrity, etcetera.

5 They come forward and prove them. They prove the

6 violations, where they are, what they are, whether they

7 exist at all, and then we rebut them.

8 It seems to me it's kind of odd to impose on us

9 the ability to come in the fist instance and say

10 there are no violations.

11 HEARING OFFICER: But, you see, and we can argue

12 about this a long time, and it's really more of an

13 academic discussion than one that really is important

14 from a practical standpoint, the SWIM plan already sets

15 forth what agency position on that is. That's why, I

16 mean, the position is already stated.

17 So I think my concern would be that even though

18 there are a number of issues raised in the petition,

19 if I was to require the District and the proponents of

20 the plan to come in and present their evidence on all

21 of those issues, then we are really lengthening the

22 process, because when we finally get down to it a lot of

23 those issues may not be raised.

24 You may not, you may decide you do not challenge

25 that, so we have spent a lot of time taking evidence on

1 a lot of issues that really may not be in dispute when

2 we get down to it.

3 So that's why I think the more efficient process

4 is to say that the agency has set forth what its

5 position is in the SWIM plan. If those who are challenging

6 it come forward and present evidence that contradicts

7 what's in the SWIM plan, and the proponents of the plan

8 would have to come back and prove that what's in the

9 SWIM plan is the correct view of events.

10 You know, I have thought about it, and I have spent

11 a lot of time on it. At this point I just think in the

12 long run the most efficient way to deal with it is the

13 way that I have outlined.

14 MR. HYDE: I understand that. I will not say

15 anything more, except to note one thing. We're not

16 challenging the whole plan. We only have identified

17 specific issues.

18 It's not like some people do in many contexts,

19 challenge everything about the agency action, and you

20 require the applicant to go through a foolish exercise

21 of dotting every "I" and crossing every "T". We are not

22 proposing to do that, nor do I think we should.

23 HEARING OFFICER: Okay. Are there any other

24 comments? Mr. Green, you sometimes raised your hand.

25 MR. GREEN: Well, just briefly. I think we will

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1 need significant rebuttal time, and I hope you envision

2 that.

3 HEARING OFFICER: I certainly expect that there

4 is going to be some response to the case that is

5 presented by the proponents of the plan, but on the

6 other hand, you know, I would expect that any response

7 would be directly related to the evidence they presented

8 and not something that has been held back and could

9 have been presented in opposition to the plan from the

10 outset.

11 MR. GREEN: Right. Yes, sir.

12 HEARING OFFICER: Any other comments? Mr. Reid?

13 MR. REID: No. I agree.

14 HEARING OFFICER: Ms. Ponzoli?

15 MS. PONZOLI: (Shaking head.)

16 HEARING OFFICER: All right. That takes care of

17 the burden of proof issue.

18 And again I think somebody brought out the burden

19 of proof and often it's confused with the burden of

20 going forward and the burden of persuasion.

21 The burden of persuasion is another issue, and

22 one that I think both parties would probably address

23 in legal arguments at the conclusion of the hearing, and

24 that's probably the best time to resolve that. I

25 have thoughts as to how that goes. We can talk about

101

1 that.

2 Most of the issues that we are talking about

3 relate to the burden of going forward at this point.

4 Mr. Reid, that brings us back then, having said

5 all that, we are back to the District being the initial

6 presenter of the case, and I don't know if you have

7 given any thought as to exactly what you expect to do

8 in that regard or whether you want a little bit more

9 time to think about that, but what I want to have is

10 an outline as to what that initial presentation is going

11 to be, with designation of who the witnesses are that

12 will be called in that regard.

13 I think the petitioners are entitled to know that,

14 and certainly I'd like to know that.

15 From a planning standpoint that would give us

16 information we need to begin the initial notice of the

17 hearing.

18 As I indicated, we'll start that on April 25th.

19 I had previously indicated that I would within a certain

20 amount of reserve discretion defer to the party who

21 was presenting its case as to location, simply from

22 the standpoint of the witnesses and strategic necessity,

23 so that initial phase would be wherever you think is

24 the best.

25 MR. REID: Okay.

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1 HEARING OFFICER: I would like to get an estimate

2 as to how long you think that might last, so that we

3 can do some planning on this.

4 I have been given very explicit instructions that

5 the first week in may I need to be in Tallahassee on

6 Thursday evening. My wife's cousin is getting married.

7 MR. HYDE: We were wondering who gave you

8 instructions.

9 MR. REID: A higher authority.

10 HEARING OFFICER: So I wanted everyone to know

11 that. That's one of the few benefits, there are not

12 many, but one of the few benefits of being in my

13 job. I can make that call, at least.

14 MR. REID: That's like May 5th?

15 HEARING OFFICER: May 5, yes. I'd like to be back

16 in town mid-afternoon on that day, if possible.

17 So, Mr. Reid, if you could get something out in

18 that regard next week that will give us a better feel

19 for strategically planning the next phase of the

20 case.

21 Now there are, I don't know if there are any other

22 issues we need to discuss today with respect to the

23 exchange of the preliminary statements made by both of

24 the parties. I have gone through those.

25 I thought that they were helpful, and I hope they

103

1 have served to identify witnesses and issues, etcetera,

2 just a little bit.

3 MR. EARL: If there's no further questions, I

4 guess I'd like guidance, Mr. Menton, on, one, may we

5 assume without stipulation, it's my understanding we

6 have had discussion, but without stipulation of the

7 parties in the SWIM case there will only be one

8 recommended order?

9 HEARING OFFICER: Yes. I have thought about

10 that, and I know we have talked about segmenting, and

11 we still may do it in terms of taking breaks in the

12 middle of it, depending on how long it looks like it

13 is going to go, and I reserve the right to do that,

14 but unless everybody is in agreement that there

15 should be a separate recommended order I just don't

16 think there is any feasible way of breaking it out.

17 And, Mr. Guest, I know that was an issue you were

18 particularly concerned about, if you are still there.

19 MR. GUEST: Yes, I'm here, and I'm disappointed

20 frankly, but I understand.

21 HEARING OFFICER: Okay.

22 MR. REID: Could I ask another question? Only

23 because we sometimes find ourselves surrying back to

24 former transcripts to find out what we all agreed to.

25 Is there likely to be an order that will

104

1 memorialize your rulings today regarding the witnesses

2 and the order of proof?

3 HEARING OFFICER: I will do an order on the

4 witnesses. I will do an order with respect to the

5 mediated plan.

6 In terms of the order of proof I did not anticipate

7 doing an order on that.

8 MR. REID: But, I mean, you have said how we are

9 going to do it, and we can rely on it being done that

10 way?

11 HEARING OFFICER: Right.

12 MR. REID: That's fine.

13 HEARING OFFICER: Okay. Those were the issues

14 that I think I had noted that needed to be brought up

15 today. Are there any other ones any parties needed?

16 MS. PONZOLI: Mr. Menton, I just may be

17 unfamiliar with how we will do it, but since we are not

18 based in either where the District is or DEP or where

19 the DOAH, where these hearings are going to be held,

20 am I safe in assuming that this trial will continue

21 separated in locale between West Palm Beach and

22 Tallahassee, and I should make whatever arrangements

23 I'm going to have to make in those two locations? Is

24 that pretty fair?

25 MR. REID: I was thinking I might pick Miami,

105

1 actually. I haven't talked to anybody about it.

2 MS. PONZOLI: That would be wonderful.

3 MR. REID: But, I mean, I was going to think about

4 it and talk to my client. They might now want to do

5 that, either. I had not ruled that out so far as what

6 I might suggest for the opening phase.

7 HEARING OFFICER: Okay, then that's a possibility,

8 and certainly that's acceptable. For those who practice

9 administrative law know, most Hearing Officers ride the

10 circuit, so we are used to kind of going around and

11 literally I have conducted hearings in different

12 locations, the same hearing in different locations.

13 It's not problem doing that, and it's probably appropriate.

14 MR. EARL: Could we be advised of your selection

15 next week?

16 MR. REID: I intended to do all of that at the same

17 time.

18 HEARING OFFICER: And I think we need to really begin

19 to crystallize the schedule a little bit, so we

20 can make plans in terms of hotels and that sort of

21 stuff, so once we get a general idea as to what your

22 initial case would look like, then we'll begin to try to

23 crystallize the schedule a little bit further for the

24 next phases.

25 MR. HYDE: Mr. Menton, along the same lines, Mr.

106

1 Earl made a good point to me, these hearings, the

2 hearing rooms here at DOAH may not be big enough. I

3 don't know if we should make other arrangements in

4 Tallahassee.

5 HEARING OFFICER: That does raise another point.

6 If you are going to schedule, if, for example, Mr. Reid

7 wants to do the hearing down in Miami or somewhere

8 else, generally the Division, we have some state

9 facilities we use, depending on the circumstances.

10 The Dade County Court House is one, depending on

11 availability of courtrooms...

12 MR. REID: I have done that for federal APA

13 hearings. I have borrowed state courtrooms for that.

14 HEARING OFFICER: But the one thing I need to

15 warn you about is we are not a high priority for them,

16 and we are sometimes stuck in the attic and basement,

17 and it depends, especially if we're talking about any

18 length of time. We end up having to move to several

19 different locations.

20 So what I have done in the past, for example, when

21 I have had extended hearings in Miami I had on

22 several occasions conducted them in a conference room

23 in a hotel with the agreement of all parties.

24 MR. FITZGERALD: The heat is filling out. They

25 want to fill the arena. Seriously, the Dade County

107

1 Court House, many of the courtrooms in there will be

2 inadequate in terms of the size of the constituency.

3 HEARING OFFICER: Whether, whoever is seeking to

4 do something outside of Tallahassee, you will have to

5 come up with your own. I suggest you come up with your

6 own hearing room arrangements, and if you don't let

7 me know, and we'll have to take that into account.

8 With respect to Tallahassee, you don't think

9 that our two hearing rooms here, the bigger ones,

10 will do it?

11 MR. EARL: Just the lawyers and then we add

12 clients and add experts, those who will be attending the

13 trial?

14 HEARING OFFICER: Well, I don't have a problem

15 doing it outside of here, but I'm not going to come up

16 with any suggestions as to where that will be, nor

17 am I going to volunteer the Division to pay for it. So

18 give it some thought.

19 We have used some other facilities here. The

20 FSU Moot Courtroom, although it's difficult to do

21 if they're in session, because we can't get it for an

22 extended period. Sometimes in the summer if we get it

23 past the end of the school year we may be able to do

24 that.

25 We have also, I'm trying to think of other

108

1 facilities, the Conference Center at FSU on occasion

2 we've used, and that's another option.

3 So I'm willing to entertain suggestions in that

4 regard, but I will leave it up to you, Counsel, for that.

5 Okay. Any other issues that we need to discuss?

6 MR. BURGESS: We will need, we are just trying to

7 work this out, but I was informed by one of my partners

8 who was at Ron Jones' deposition this week that

9 Dr. Jones has not turned over all of his raw data with

10 respect to water quality that he took in the Refuge,

11 and he has turned over his average data.

12 We have turned over all of our raw data. We think

13 the entry and access order requires them to do the

14 same, and we ask them on the record to do that.

15 We hope they will do it, but if not we will be

16 before you by telephone hearing next week, because

17 we think that information is important for our

18 experts to consider.

19 MS. PONZOLI: Mr. Menton, I must say after four

20 days of listening to 10 years of data I'm not sure I

21 exactly recall which set they are referring to.

22 It may be that it was a set that was machine

23 generated, and the machine did the raw data and did the

24 average at the same time, and so if that is the set

25 that Dr. Jones said would take him two weeks of sitting

109

1 at the machine to regenerate I may seek protection, so

2 what I would like to do if I can give it to them in a

3 reasonable fashion I will do it gladly. If it's going

4 to be unreasonable, we will try to work it out, and

5 if so, we will work it out.

6 I would like the transcript, and so it may take more

7 than a week. I will try to get to it as fast as I

8 can. That's all I can respond at this time.

9 HEARING OFFICER: Any further issues today? Okay.

10 Thank you.

11 Oh, I guess we need to give some thought as to

12 another hearing date. At this point the only other

13 one scheduled is April 8th. That's fine with me.

14 We talked about a telephone conference.

15 And the other thing we needed to discuss is this

16 preparation of a pre-hearing stipulation, and we had

17 talked about doing an order on that, too, and I have a

18 standard order that I have used that I can easily

19 modify for this case if you want to do that, but I

20 gather there was some discussion that that might be,

21 that there might be some unique factors that they

22 wanted, that some parties wanted to include and were

23 drafting. I think that came up at one of our prior

24 hearings, if I'm not mistaken.

25 But to my recollection there has not been an order

110

1 at this point directing the parties to do a pre-hearing

2 stipulation. We talked about that, and certainly

3 that's something that needs to be done.

4 So do you want me to just draft the standard order

5 that I do in terms of exchanging witness lists, or

6 are there some particular factors that the parties

7 want to discuss and draft one and submit it?

8 MR. REID: Could we get your form and then talk

9 about it with them?

10 HEARING OFFICER: Sure.

11 MR. REID: That would be the best.

12 MS. PONZOLI: For another hearing, Mr. Menton,

13 March 11 has half the number of depositions that

14 March 18th does, and there's, it's sort of midway towards

15 the end if we could tentatively have, well, we'll be

16 doing it by phone otherwise, Mr. Green.

17 MR. GREEN: I would hope this time it would come

18 out of the weeks you folks are deposing, since we

19 lost a day.

20 MS. PONZOLI: Well, there are seven depositions,

21 one, two, three, four, five, six, seven, the following

22 March, Friday, March 18th. I mean, it's a...

23 MR. GREEN: How about a Monday?

24 MS. PONZOLI: Monday is fine. The 14th?

25 MR. GREEN: Monday, the 14th.

111

1 MS. PONZOLI: Yes, that's better. There are only

2 two depos that day.

3 MR. GREEN: Monday, the 14th?

4 HEARING OFFICER: Okay, Monday, the 14th, we'll

5 set up a hearing. Ten o'clock.

6 MS. PONZOLI: That's fine. That's actually better.

7 It's half as many depos going on that day.

8 HEARING OFFICER: Okay. I can get a quick copy of

9 that pre-hearing order I use generally, and once we

10 adjourn here I can give it to you and to all parties.

11 You can take a look at it and see if there are any

12 further additions or modifications you want to make, and

13 we can use that to govern the time frames that will

14 have to be used in this case.

15 All right. Any further issues we need to discuss?

16 Okay. Thank you.

17 (WHEREUPON, THE HEARING WAS CONCLUDED AT 3:30 P.M.)

18 * * * * *

112

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 111, 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 13th DAY OF FEBRUARY, 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 13th day of February, 1994, by SUE HABERSHAW

23 JOHNSON, who is personally known to me.

CHRISTINE WHEELER

25 Notary #AA711091