4
PROCEEDINGS
(WHEREUPON, THE HEARING COMMENCED AT 2:00 P.M. AS
FOLLOWS:)
THE HEARING OFFICER: My name is Stephen Menton, and
I'm the Hearing Officer at the Division of Administrative
Hearings appointed to hear these cases today. We have a
number of preliminary matters which I think probably need
to be taken up.
Why don't we start by having the parties identify
themselves for the record beginning with the Sugar Cane
Growers Cooperative, with that case, and we'll move onto
the remaining.
MR. R. SMITH: Mr. Hearing Officer, I'm Robert
Smith with my partner, William H. Green, representing
petitioners in that case.
THE HEARING OFFICER: Okay. And for the Sugar Cane
League.
MR. EARL: Mr. Hearing Officer, I'm Bill Earl with
the law firm of Peebles, Earl & Blank with my partners
Judith Kavanaugh and Bill Hyde.
THE HEARING OFFICER: Okay. And then for the Fruit
and Vegetable Growers.
MR. TOMASELLO: Yes, I'm Tom Tomasello,
T-O-M-A-S-E-L-L-O.
THE HEARING OFFICER: Okay. And for South
5
Florida Management District.
MR. REID: I'm Benjamine Reid with Popham Haik,
Schnobrich & Kaufman.
THE HEARING OFFICER: All right. And we have, I
think, three petitions to intervene that are presently
pending. First with the Miccosukee Indians, is there
anyone present on behalf of the Indians.
MS. CHILDERS: Yes, I'm Martha Childers
representing the Indians.
THE HEARING OFFICER: Okay. For the U.S.
Government.
MS. PONZOLI: I'm Susan Hill Ponzoli and I'm the
Assistant United States Attorney, and with me is Tom
Watts-Fitzgerald.
THE HEARING OFFICER: Okay. And for DER.
MR. T. SMITH: I'm Tim Smith, General Counsel with
DER, and sitting third to the right is Lee Killinger.
THE HEARING OFFICER: Okay. Any other parties that
haven't stated their appearances at this time?
I thought probably the best way to start today,
there are a number of pending motions in different
matters, and I thought the best thing to do would be to
start out with the least controversial issues and then
proceed from there.
I think at this point the Miccosukee Tribe of Indians
6
has filed a Petition to Intervene. There have been no
responses or oppositions filed, at least to my knowledge.
Has anyone filed an opposition? Is there anybody
that wants to be heard in opposition to the Petition
to Intervene that was filed by the Miccosukee Tribe of
Indians?
MS. KAVANAUGH: No, sir.
THE HEARING OFFICER: Okay. Well, I'll go ahead and
grant that Petition to Intervene. The Petition to
Intervene that was filed by the U.S. Government, there was
one response that was filed in opposition to the petition.
That's filed by the fruit and vegetable growers, Mr. Hyde,
I believe.
MR. HYDE: That's by Florida Sugar Cane League.
THE HEARING OFFICER: Okay.
Mr. Hyde, subsequent to the filing of your response there
was an additional response that was filed by the U.S.
Government.
MR. HYDE: That's correct.
THE HEARING OFFICER: In reviewing those documents
it seemed to me the response filed by the U.S. Government
articulated a little more clearly the substantial
interests that the U.S. Government has in this
proceeding, and at least from my preliminary review
indicated that they had stated sufficient basis for
7
intervention. Would you like to comment on that?
MR. HYDE: Let me defer to Miss Kavanaugh.
MS. KAVANAUGH: If I may, Mr. Hearing Officer, we
agree that the reply clarified things somewhat, but the
petition still, in our estimation, while it
articulates a better understanding of the substantial
interest being alleged doesn't comport to the procedural
rules of 28-5.07 -- excuse me, 207 -- particulary with
regard to the statement of ultimate facts that the United
States feels is in dispute, the material facts the United
States may be disputing; and I would note the Miccosukee's
petition and DER's, although we have just received DER's
today and are not prepared really to respond to that.
I just reviewed the first few pages of it a minute
ago, appear to fulfill the more comprehensive pleading
requirements that we would say would be required.
I guess at this point it appears the injurying fact
as described in the petition and the reply is premised on
the idea goes more to the Sugar Cane League's
alleged motivations in petitioning for our de novo
hearing on this order, so we would object to intervention
being allowed based on the pleadings and as
they stand now and would request that the United States
be allowed to submit a Petition of Intervention that
conforms to the rules.
8
THE HEARING OFFICER: Well, I agree with the initial
Petition to Intervene perhaps I didn't clearly
articulate the substantial interests that were in effect.
But as I understand it, they're seeking to intervene in
support of the SWIM Plan as currently drafted; and as
such, they're basically going to be in the position of
responding to the issues as you frame them in your
petitions challenging the plan. I think that was a little
bit clearer in the response that was filed.
MS. KAVANAUGH: I agree that it was clear. But,
again, the other aspects of it, Mr. Hearing Officer, is we
would like a little clarification as to whether the United
States means the United States and all of its agencies,
which we would assume that it did, or whether the United
States intends to only participate on some limited basis,
through the Department of Justice or through one or more
federal agencies.
I agree the substantial interest of the United States
is clear as a result of the reply. But again, in order
to frame the issues, and I think looking at DER's
position for example, which is very comprehensive, and
they are also aligned in the District, further pleading is
necessary to allow us to fully understand the basis for
their participation.
I would say that they will be able to frame
9
their substantial interest, but we would like that to be
coupled with the other pleading requirements for petition.
THE HEARING OFFICER: Well, that raises an
interesting point in terms of whether the U.S. Government
is appearing on behalf of the Corp of Engineers or EPA or
just the Department of Justice or exactly what the
interest is of the U.S. Government.
MS. PONZOLI: The United States will appear on
behalf of those agencies that are affected by the SWIM
Plan, and that will include the Department of Interior,
the Corp of Engineers, the EPA, and those agencies that
are affected by the issues that are raised by petitioner
and by the District in defending the SWIM Plan.
We are align with the District in the defense of the
SWIM Plan and do not anticipate introducing any new issues
or facts to be disputed beyond what the District will be
disputing with the petitioners, but we will represent
those agencies that have been implicated in
these issues all along.
THE HEARING OFFICER: So you do not intend to
raise any issues that are outside of the SWIM Plan as the
current draft of it stands; is that correct?
MS. PONZOLI: No, sir.
THE HEARING OFFICER: Okay.
MS. KAVANAUGH: Could we ask also, is the United
10
States' position that they're aligning themselves with the
District insofar as the District is going to respond to
our issues, or is it there intent to raise any other
issues?
MS. PONZOLI: I thought I was clear, Mr. Hearing
Officer. I did not intend to raise new issues.
THE HEARING OFFICER: Okay. I think at this point
you may be talking about a procedural matter in
terms of whether we're going to limit the participation of
the parties that are aligned on various sides of the
issues. That is something that occurred to me, and at
this point I don't think need to resolve.
I think it clearly stated that they intend to
intervene in support of the Plan as currently drafted and
absent some future pleading that raises additional issues,
we'll take that up at that point if they ever file one.
I think they have stated with sufficient clarity
their substantial interest will be affected, so I'll go
ahead and grant the petition to intervene by the U.S.
Government.
Okay. I just received this morning the Petition
to Intervene that was filed by DER, and obviously none of
the parties have had the opportunity to file a response.
I have not received any responses at this time. Is that
issue ripe for consideration today? Or is there going to
11
be any opposition?
MR. EARL: We would like the opportunity to review
it, and we haven't even had the chance to read it yet,
and we'll notify the hearing officer and parties as of our
position as soon as we have time to digest it.
THE HEARING OFFICER: Mr. Smith.
MR. R. SMITH: Same position.
THE HEARING OFFICER: Okay. What I'll do then, I'll
reserve ruling on that Petition to Intervene. I think
there is some question under our rules to whether the
appropriate time frame is seven days plus five days for
mailing for a motion, or whether it's twenty days for
filing a response to petition.
Why don't we just establish here that any
opposition to the petition to intervene submitted by DER
should be filed within ten days from today?
MR. HYDE: Okay.
THE HEARING OFFICER: Okay. Now the South Florida
Water Management District has filed a Motion to Dismiss
each of the petitions that were submitted in this case.
Essentially, as I understand those Motions to Dismiss,
they allege failure to state an appropriate claim for
relief.
I have reviewed all of the petitions and I have
reviewed the Motion to Dismiss. So far, I have received a
12
response to the Motion to Dismiss from the Sugar
Cooperative. I don't believe I have from any of the other
petitioners at this point filed a response as I understand
it.
Let me just say in reviewing the petition for the
Motion to Dismiss and the statute, I agree that perhaps
that specific relief that's being sought in each of the
petitions is not completely clear at this point.
Now I have a number of questions as to how that statute
should be interpreted and the exact nature of the
proceedings that we're involved today. I don't think
those issues are ripe for determination at this point
in time.
I think that the petitions sufficiently
comport with the statutory requirements and frame the
issues well enough at least to get started. So I'm
going to deny the Motion to Dismiss. I do think that as
we go on along through the course of these proceedings
we'll need to address in a little more detail exactly what
the nature of this proceeding is and exactly what my role
in this hearing is going to be.
MR. REID: I assume that will be without prejudice
then.
THE HEARING OFFICER: Right, exactly.
MR. HYDE: Mr. Hearing Officer, just for point of
13
clarification, the District filed a Motion to Dismiss or
amended petition. We did file an amended petition.
THE HEARING OFFICER: Right.
MR. HYDE: So am I safe in assuming that the same
rules applies to amended petition?
THE HEARING OFFICER: Yes. And I believe there was
an amended petition that was also filed by the Fruit and
Vegetable Growers. Along those same lines, the Water
Management District has filed a Motion to Strike in all
three of the cases, and again an amended motion was filed
in connection with the two petitions that were amended.
Again, the common theme seems to be to strike those
allegations that deal specifically with the history of
development of the Everglades agricultural area as well as
the federal lawsuit, and also to get more specific in
terms of specific issues that were framed by each of the
petitioners.
In reviewing the petitions, I did feel that the
allegations regarding the development of the Everglades
agricultural area and the federal lawsuit were at least
useful for background purposes if nothing else.
I think there are a number of questions with respect
to how the federal lawsuit is going to come into play in
this proceeding, but, again, I think it's a little bit
premature to deal with those at that point.
14
As far as the specific allegations in terms of the
Motion to Strike those allegations, I think it's premature
for me at this point to get into evaluating specific
allegations. You guys have lived with this case a lot
longer than I have.
I've been through petitions. I understand some of
the general nature or general allegations. I am in no
position at this point to determine which allegations are
going to be relevant and which aren't.
I think the appropriate procedure would be to
establish a series of prehearing conferences in which we
can hopefully narrow the issues and also discovery will
narrow the issues. So having said that, I think it's
pretty clear I will deny the motions to strike at this
point without prejudice, to refile those either as Motion
to Strike or Motion in Limine as the proceedings go
forward.
I think that brings us to the last issue which is
the Motion to Stay that was filed by Mr. Smith. That
Motion to Stay as I understand is based upon the relevance
of the case. That alleges that the federal court had no
Article III jurisdiction in the underlying federal
proceeding and that the proposed agency action in this
case has been tainted by the coercive influence of
federal court's exercise of jurisdiction. Is that
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essentially your position?
MR. R. SMITH: Well stated.
THE HEARING OFFICER: Okay. I have received a
response from the U.S. Government in opposition to the
Motion to Stay and also a response from the South Water
Management District. I have also reviewed those
responses, and, of course, I'm familiar with Mr.
Kendrick's ruling in the Motion to Dismiss in the rule
challenge case.
Mr. Smith, I'll give you an opportunity to argue your
Motion to Stay, but I have been through it in exhaustive
detail, so there is no sense in really going back through
all this specifics. Let me just say at the outset, there
are a couple of issues that struck me right off the bat in
reviewing it.
First of all, I noticed that none of the other
petitioners in the other cases have joined in the motion
that you have filed. The first question that came to me
is whether the Motion to Stay would be related solely to
the proceedings you initiated, or whether it's intended
to apply to the other two petitions that have been filed.
The second issue that struck me immediately in
reviewing it is obviously the South Florida Water
Management District is not alleging it has been coerced
and, in fact, has filed a response in opposition to your
16
Motion to Stay.
Having said that, it put me in a position wherein
attempting to determine how to proceed in these cases, I
have a SWIM Plan that was adopted in accordance with
all the procedural mechanisms that are set forth in the
statute that would appear on its face to be appropriately
adopted, or at least as the statute anticipates, and I
guess the issue that I have is, would I have any defense
at all to a mandamus proceedings? If I was to grant your
Motion to Stay, would that be kind of defenseless
mandamus proceeding?
MR. R. SMITH: Well, I think you brought up some fine
points which I would like to address.
THE HEARING OFFICER: Okay.
MR. R. SMITH: May it please Your Honor --
THE HEARING OFFICER: One other issue that I guess
that sort of related. The other issue that stood out
to me right off bat was whether or not this was, in fact,
a collateral attack of the federal court rulings, and
whether I shouldn't just await the federal court decision
in terms of their addressing the jurisdictional arguments
that you raise?
MR. R. SMITH: Let me give you a short answer to each
one of the points and then go back and elaborate. What
we're asking you to do is to stay these proceedings until
17
the federal court does just that. I will explain in a
moment why I think that is the most conservative, the most
responsible thing for the officer of the Executive branch
of the State of Florida to do at this juncture.
I think my Motion to Stay goes across the board to
all the proceedings that you have before you whether they
are consolidated or not. But if the other petitioners
wish to disassociate themselves from it, because they have
a different view of the importance to what was
important before the hearing officer, I would understand
that.
I don't think you'll find any one of them disagreeing
with me. I think you will find each one of them
emphasizing a slightly different aspect of the matters.
I believe if you consolidated these matters, which would
be appropriate, is that the hearing officer would consider
my motion as addressed to the consolidated proceedings,
else not consolidate them if anyone objects to my motion
being so addressed and act upon my motion within our case
alone, so you proceed without prejudice to my clients and
these other cases.
I think the simple most straight-forward thing is to
consolidate them and consider the Motion to Stay as
addressed when all is consolidated.
Surely I recognize that the District says that we're
18
not coerced. I recognize that, and I'll address that
in a moment. The last question that you put intrigued
me, would you have any defense to mandamus?
I would like to expand your conscienceness of this
for just a moment. Your concentrated quite properly so on
what your duties are and how we can help you perform the
duties in this very specialized proceeding. I think you
will concede that everybody at this table knows that there
has never been a case just exactly like this. There is
nothing in the books about what any hearing officer
should do.
It is correct, as has been represented in the
filings, that we made a presentation to your colleague in
a matter that was subject to a stringent time limitation
upon the commencement of the action to make a substantial
ruling, make a substantial ruling that what we are
complaining out here absolutely vitiates that rule, and
the hearing officer for reasons that were not elaborated,
ordered stricken the three grounds of our rule challenge
on which that -- on which we proceeded.
So that was presented in a slightly different
context. I would say a substantially different context
than what we're presenting here today.
I should tell you also by way of confirmation of
what's been said in the responses, yes, we have filed an
19
action in the Circuit Court in Leon County in which we
sought to enjoin this proceeding and the B and P
proceeding before your colleague upon essentially the
grounds that we have laid out here as grounds for our
Motion to Stay, and we do have a record of the judge's
ruling; and if I may, I would like to file a copy as
an exhibit.
Could you hand this up, please. Carry that up to the
hearing officer. I think everybody here has a copy of
that transcript, but if not, here are extra copies.
And I would appreciate your receiving that record.
THE HEARING OFFICER: All right. I'll place it in
the file.
MR. R. SMITH: You'll see from that that
Judge Davey says you know you've got a remedy in 120.
You can make a record before either one of these
proceedings before DOAH and carry it up to the
District Court of Appeals.
You will observe within our petition that there
is a prefatory objection to these proceedings, and we
would expect, if this proceeding does go on, to make a
record in support of that objection and carry it up to the
District Court of Appeals.
The objection being essentially the grounds on which
we are asking you, sir, today to order a stay that we feel
20
absolutely can be defended with a mandamus. But in a
larger sense, what's at stake here is not really the
narrow issues that we're accustomed to dealing with here.
It is instead is it going to be somebody who is
under oath to protect and defend the Constitution and laws
of the state of Florida who is going to say, Green and
Smith and their clients here have made a prima facia case
that looks pretty serious to us from a constitutional
insurgent by an unauthorized judicial body.
Now it would be an indefensable collateral attack.
It would be indefensable for us to entertain it were
we a hearing officer or were we in a circuit court like
Judge Davey. If after a full and fair hearing on the
objection to the federal court's jurisdiction, the court
says, I've considered your Article III argument. I
considered McCulloch against Maryland, I've considered
Blatchford, I've considered Will; I've considered all
these cases, Gregory against Ashcroft, which I will
address in just a moment, and not withstanding that, Mr.
Smith, this court has jurisdiction.
It would be the first such instance in the history of
the United States for a court to have said such a thing.
It's never been said before that we have jurisdiction in a
federal court upon the asking by the United States to
compel a sovereign state to exercise in a particular
21
way its own state law making function without any claim
of superior right in the constitutional laws of the states
of the United States.
It would be the first time a federal court
ever said that, addressing that issue directly. And had
the court said that after a full and fair hearing, we
would have no standing here before this division to ask
you to re-examine that. Simply upon the basis as
Judge Davey said, it would be chaotic or one tribunal to
be second guessing as an appellate function a
determination by another body of another sovereign, and
that is clear in the cases of the United States Supreme
Court.
There is an important qualification, however, and
that is that this deference that is owed to the courts of
another sovereign is based on the premise that those
courts are acting within their jurisdiction, and those
courts even act within their jurisdiction when they make
an erroneous determination of their subject matter
jurisdiction. So had we had a full and fair hearing
before the United States District Court reaching this
result, we would not be here.
We would have no standing to urge that you sit in
appellate review of that. But here we've got something
else going on.
22
We have not only what we allege to be
factually, disputed factually, the coercive influence of
this federal litigation in the creation of the SWIM Plan,
which can never be routed out of it. We have not only the
want of federal jurisdiction, which we allege as a matter
of law, we have as a factual matter the court's refusal to
grant us a full and fair hearing.
And so the equation is this: Were a federal
court without jurisdiction and without granting an
effective party a full and fair hearing on his objection
to a subject matter, Article III jurisdiction, enters
an order coercing that citizen's government, the state
government, to create laws burdening that citizen,
has not the citizen been deprived without the due process
of law? Yes, the full and fair hearing, without due
process of law of protected liberty and property
interests in the integrity of his own government. We
think that equation is demonstrable.
So there is then legally, legally there is something
that is cognizable by any judicial or quasi judicial
officer of the state of Florida. We have a claim on
its face perfectly valid of the deprivation without
due process of law of a protected liberty and property
interest of a citizen in the integrity of the workings of
his own government that is to be free of coercion by a
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foreign occupying power, a habit that has no jurisdiction.
Now what you should do about it. Judge Davey says
everything you say, Smith may be right, but I'm just at
the bottom of the totem pole. I'm not the guy you should
be asking. He laid out his reasons so that he'd say I
can take my shot with the First District Court of Appeals
or with the Supreme Court, and I will certainly take that
shot.
If the Hearing Officer says today that there is
nothing I ought to do as an officer of the Executive
branch of the state of Florida by way of staying these
proceedings, a much more modest rememdy than I sought
from either Judge Davey or from your colleague, then we'll
take that shot as well. We'll take it.
In the grander view of things, you see what we want
is that full and fair hearing before the Court of Appeals
to which we have now appealed, and this was the same
court that on March 22, 1991 said, Go away. We do not
want to hear this objection in defiance I say of in
200 years of United State Supreme Court law that says the
one thing federal court must do is determine the subject
matter jurisdiction. It cannot be conferred by consent;
even though these folks later consented, it cannot be
conferred by consent, not ambiguous law on that.
We have to get from the Court of Appeals a full and
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fair hearing on this, else without a bang or a whimper
every agent and agency in the state of Florida will have,
in Governor Chiles' words, May 20, 1991 before
Judge Hoover surrender his sword and said, We surrender
our state law making capacity to Your Honor, the Federal
Court, you tell us what you want us to do.
Now we think it would be a rather dreadful thing for
us to go out without a bang or a whimper, and we say to
you today that the one very conservative thing that is
within your power to do is to say, I'm cognizant of the
mandate from the Florida legislature that requires the
SWIM Plan be proposed by the District by a certain date,
which they have met, and I'm cognizant also of the mandate
of the legislature that this be expedited.
And this is what the legislature said last spring --
last winter in 1991. I would say to you as a matter
of common sense and decency that the legislature did not
mean for Mr. Menton to let pass an opportunity to correct
or at least to freeze and hold in place while others
tried corrective action influence that on its face
appears to be make a prima facie case of a federal court
action in varigation of sovereign functions of the
state of Florida.
What would that do if you should enter an order
saying this case will be stayed for a period of
25
six months and will be reviewed at the end of that time in
order to permit the Court of Appeals, if possible, and if
it is within its will to lift the cloud that at least
prima facie is upon these proceedings either
by validating this assertion of jurisdiction, in which
case we can proceed or by lifting, saying this was
an unlawful exercise of jurisdiction. Then the question
before the hearing officer would be, What must I do to
route out the vestiges of this improper influence?
I'm saying if you simply go forward blind to what
this SWIM Plan was borne out of, we're simply exacerbating
the eventual problem when the court rules, as eventually
is going to happen, that the United States judiciary
does not have power to compel a state to perform its
sovereign law making function under state law in a matter
of pleasing to the United States proprietary interest.
That's going to happen.
Why should the process of the State Government be
subjected to such an influence while the means of
dissipating the influence or validating it are at hand?
It would be an intrusion, an infusion I should say, of
common sense at a very decent regard for a collateral
proceeding if you should do that, Mr. Hearing
Officer.
THE HEARING OFFICER: Did the federal court deny a
26
request for a stay? Did you seek a stay from the district
court, the appellate court?
MR. R. SMITH: I sought a stay earlier. On review of
the Court of Appeals' decision denied me a hearing. That
was denied in both places. The Court of Appeals, I should
say the district court, asserted that it had
jurisdiction without having granted us the hearing,
without having granted us the full briefing, had no doubt
that it had jurisdiction strictly on the basis of the
United States having asked for this relief.
No, I did not seek a further -- I did not make a
further attempt to gain a stay from that Court.
THE HEARING OFFICER: Is there an appeal pending
before the Eleventh Circuit right now?
MR. R. SMITH: Yes, it is going very slowly.
THE HEARING OFFICER: Was there an effort to seek a
stay as part of the appellate proceeding?
MR. R. SMITH: No, no. This, the federal
court order that is under appeal, is only the vehicle. It
is not the thing we're complaining about. What we're
complaining about is underneath that. It is the
exercise of jurisdiction to even entertain the action.
Yes, we have sought repeated attacks on that. We
have not been heard. They have not heard us to make the
attack. They have not heard us to -- they may have heard
27
a Motion to Stay and denied it, yes.
If you should enter the stay that would come from
one of the district courts, I presume, it would be an
opportunity to infuse that into the judiciary of Florida
where it ought to be, and that would be a perfect act to
trigger the exercise of that judicial authority.
It would be saying, this makes a prima facie case.
This is the practical remedy. If I'm wrong, tell me I'm
wrong, and we would be there defending that. I need not
have, as to whether the SWIM Plan is the product of the
settlement agreement, I need not look any further than the
United States' Motion to Intervene, which alleges that the
allegations in the petitions initiating these proceedings
are specifically directed to the reasonableness and
propriety of the SWIM Plan's design to maintain
acceptable water quality standards for discharges into the
park and refuge; and quoting, The obligations of the
South Florida Water Management District to the United
States in other legal proceedings.
And again in the reply, the United States in
Footnote Two, says speaking of the Sugar Cane
League, that the petitioners disingeniously act as though
the Federal Government has no legitimate role in these
proceedings, although these proceedings are
the culmination of over three years of ongoing legal
28
confrontations to establish the rights of the park, et
cetera.
There is a direct nexus which can be factually
demonstrated to Your Honor if you care to hear them.
THE HEARING OFFICER: Well, but isn't that the
purpose of the hearing on the SWIM Plan itself? I mean,
if you can establish as part of this 120.57 proceeding
that the provisions of the SWIM Plan were based solely
upon something the Federal Government mandated and not
based on science or fact or reason, then isn't that a
basis for invalidating the Plan in this proceeding and go
forward with a hearing?
MR. R. SMITH: We're certainly going to make a proper
attack upon the merits of those. But you will recognize
as an experienced hearing officer what the federal
court could not, or at any rate did not, and that is the
residual authority in the agency of the state of Florida
under 120 to enter a final order and everything that is
implied in that, in matters of interpretation, in matters
of agency policy, in matters of agency choices, strategies
that are within the limitations of the statute.
The agency has a pretty powerful influence which the
hearing officer monitors but does not veto. It's in
respect to those choices that you're going to find that
this entire proceeding has. So I'm not going to be able
29
to say that when the legislature says it may be necessary
to condemn some land, that the agency is ultimately
without authority to condemn some land.
What I'm going to have to say is that this is
an inappropriate exercise of that authority given all the
facts and circumstances, and all the hearing officer can
do is to enter an order on the record of argument and
evidence. But this SWIM Plan commits, by virtue of its
agreement with the United States, the agency to condemn
private property to the extent of about, I think it's
36,000 acres, which is not mandated by Florida law.
It's arguably authorized by Florida law given the
scientific necessity, but the effect of this coercion is
going to be untracable in this action except by laying the
SWIM Plan next to the settlement agreement and showing the
connection, and showing the dramatic change in position
that the District to say after May 20, 1991 as compared
with before when they made an offer of judgment to the
United States stating their then position, which was
significantly less burdensome to the petitioners here
than what came out later in consequence of Governor Chiles
surrendering his sword.
THE HEARING OFFICER: Doesn't the state have the
option to do that? Doesn't the Governor and the Water
Management District have the option after the litigation
30
and the Federal Court has gone on to say simply, we
recognize the error of our ways and decided the U.S.
Government was right, and therefore, we're willing to go
along with what they say?
MR. R. SMITH: Not really it isn't particularly
by coercion from a court without jurisdiction. If they
did it, these proceedings that would be exactly how
Florida Government is supposed to work. Had they made a
proposal in the making of a SWIM Plan and the nature and
extent and character of their offer of judgment in the
spring of last year, not United States, which the United
States refused, and they came in before this division, and
in proceedings on that SWIM Plan it was shown by the
United States or by Friends of the Everglades or someone
else, much more stringent requirements were necessary,
they would be privileged to do that.
The question is, what is the effect of unlawful
coercion in the proposal of this SWIM Plan, and can
the effect of that be routed out until, or accounted for
or validated, until the federal court has finally ruled
upon the merits of that question of their jurisdiction?
I think you put your finger on the complete
distinction. That had it occurred in the normal APA
processes, the Florida law would be vindicated. We would
have no complaint. We simply lost a conventional trial
31
before a hearing officer with final authority in the
district that became persuaded that it was necessary to
condemn 37,000 acres instead of 17, and it was necessary
to place stringent limitations upon farming to the goal of
reaching 7 to 14 parts per billion of phosphorus
entering the park as compaired to 240, which was the
subject of the contract.
THE HEARING OFFICER: Well, without presupposing
what the Water Management District is going to say, they
take the position that irrespective of the ruling of the
Federal Court of Appeals on the jurisdictional argument
we now believe that as a matter of policy this is a SWIM
plan we want to live with irrespective of what happens in
the federal lawsuit, and we're ready to go to hearing
on that irregardless of what the Eleventh Circuit
does, doesn't that vitiate any of the coercive influence
that you're talking about?
MR. R. SMITH: No. They're under the order of the
federal court to defend this. The federal court says if
this proceeding before DOAH with final order authority in
the District doesn't come out like the United States wants
it to, the United States is privileged to come back and
resume this litigation.
THE HEARING OFFICER: Well, as I read the court's
order, essentially what the court said that it would
32
revisit the whole issue depending on what the results of
the 120.57 proceeding --
MR. R. SMITH: And the question is, what power does
the federal court have to supervise or superintend the
creation of state law and policy? That's where we finally
come down to. Judge Hoover says, I have all
the power that's necessary to do what I think is right in
terms of Florida law for these federal proprietary
interests. I'm not going to exercise it all at
once. I'm going to withhold it. I'm going to give
the state administrative process a chance to agree helped
along with the urgings of the District whose coercion has
brought this to this pass.
Unless you're prepared, and the United States
says, to disregard the proceedings that these proceedings
are the culmination of over three years of ongoing legal
confrontations, and I would add, in a Court that would not
broach discussion of this jurisdiction, then it would
proceed as though nothing has happened it.
Something very serious did happen, and that's what we
wish you to take cognizance of. Now the question is, are
we going to find here recognition of the principle, some
expression of the principle of which this U.S. Supreme
Court spoke in Gregory versus Ashcroft in over a year ago,
quoting Madison, In a compound Republic of America the
33
power surrendered by the people is first divided between
two distinct governments, and then the portion alotted to
each subdivided among state and separate departments; of
which the court says, This is the decision of the most
fundamental sort for a sovereign entity, speaking of the
decision of the state in that case, through the structure
of its government and the character of those who exercise
governmental authority as state defines itself
as sovereign.
It is obviously essential to the independents of the
states to their peace and tranquility that their power
prescribed the qualifications of their own officers to be
exclusive and free from external interference except so
far as plainly provided by the Constitution.
The federal courts have been faithful in the higher
reaches to the principle that the states retain
sovereignty. This is not Calhoun speaking. They don't
retain any sovereignty as against what Congress enacts.
They retain no sovereignty as against the Constitution of
the United States, the due process clause, the equal
protection law, but they do retain sovereignty over their
own governmental processes for creating law. That's what
we say is interfered with.
We say it is unprecedented. It has never happened
before, and we say at some point we have got to find, and
34
we think this is the place where we ought to find it,
considering the modest relief that we're asking, a means
of the state governmental authority, of which Your Honor
is a part, recognizing that something very serious has
happened in which a very credible case has been made that
the federal court acted without constitutional authority
and without even listening to an objection to that
authority, and that the prudent thing to be done is to
therefore hold this temporarily pending the resolution of
that so that the federal court may get on with it and do
it with dispatch but with full knowledge that the Florida
Government has not capitulated.
I think I'll leave it at that unless they're further
questions that you want to address to me.
THE HEARING OFFICER: I guess the thing to do is
hear from the other petitioners.
MR. HYDE: Just a few brief comments, Mr. Menton.
We agree with Mr. Smith when he says that there is no case
or controversy and that the federal action was improper.
That issue is now or will soon hopefully be before the
Eleventh Circuit Court of Appeals.
We believe this is not a legitimate exercise of
an agency delegated decision making authority under
Florida law. It is simply the implementation of a
contract.
35
We agree with Mr. Smith that it was a coerced
contract. We do believe, however, that this forum can and
should provide us with a remedy to that illegitimate
action by the District. We believe that Chapter 120's
remedies are important. We believe that an agency has the
authority to enter into a settlement agreement, as the
District has done here apparently, provided it is in
compliance with state law. We believe and have argued in
other forums, successfully we might add, that they
violated the Public Records Act in doing so.
We believe that we will also be able to establish
they violated the Government in the Sunshine Act. We hope
that this forum and trust this forum will allow us to
conduct discovery on the settlement and the coercion
involved and how it has affected the legitimacy of the
proposed agency action issue here.
We want to use this forum to route out that coercive
effect and to demonstrate to your satisfaction with
evidence that they have not engaged in a legitimate
exercise of delegated decision making authority provided
for under Florida law. They are making illegitimate
contract.
We want you to recognize that, recognize it for what
it is, an arbitrary and capricious agency action, purely
and simply. Settlement agreements are okay, but they
36
have to be in context of Florida law. You cannot
prescribe standards and criteria that our clients
will be subjected to simply by entering or having two
agencies, the federal agency and state agency, or three
as the case may be, enter into a settlement agreement
which imposes standards only. That's why we have Chapter
120.
Chapter 120 provides remedies. It requires that
rules be promulgates and the SWIM Plan legislature
provides that a plan of this sort has to be done in accord
with certain standards that are set forth in the act. But
it can't. A contract in sum cannot be made, cannot make
the legitimate disagreement between them.
It cannot make legitimate the SWIM Plan and shouldn't
be given -- well, just a final summary, I think that the
hearing officer as a general rule does give some deference
to administrative agencies of the state of Florida.
No deference should be given here.
I think the hearing officers do give, or courts,
presumptive validity to agency actions. No presumptive
validity should be given here. It is a contract pure and
simple. We need to route that evil out of it.
To borrow from one of I think your phrases or Mr.
Smith's phrases, give us the opportunity in this
proceeding to route out that evil to show how it is
37
arbitrary and capricious, and we trust that we can do
that.
THE HEARING OFFICER: Where do you stand on the
Motion to Stay?
MR. HYDE: I think as a practical matter we
don't think it's necessary to stay the proceedings at this
time. We are troubled, as Mr. Smith is, by the U.S.'s
apparent ability under the federal judge's order to
bring the whole matter back to the federal judge if
they're dissatisfied.
We think that's a rather unfair provision that allows
them to opt out and not honor and abide by the result of
this proceeding. We hope and trust that that will not
occur. We do not at this point think it's necessary to
stay these proceedings.
THE HEARING OFFICER: Okay. Mr. Tomasello, did you
have anything you wanted to add?
MR. TOMASELLO: No, Your Honor.
THE HEARING OFFICER: Okay. Mr. Reid.
MR. REID: Yes, sir. First let me say that I didn't
recall the hearing officer said that there was some evil
here to be routed out here. I hope that was Mr. Smith.
I think if you will look at the papers that have been
filed, if you look at page seven you will find the real
motive, and the real motive there is a hope that you stay
38
this proceeding somehow that will coerce or require the
federal court to give them something that they call fair
hearing, and that's what they say. And that's what
they're really seeking here is they're actually trying to
use this process to influence another court somewhere
else.
I would like to put all that aside and look at the
facts and look at the history of this proceeding. As you
are aware, there was litigation that went on for several
years. Before the litigation was resolved, the
legislature decided how the litigation needed to be
resolved. It passed the Marjorie Stone and Douglas Act.
It passed it unanimously, which is somewhat unique in the
history of Florida legislation.
The settlement agreement came after that. It's not
surprising in the least. But if you lay the settlement
agreement next to the Marjorie Stone and Douglas Act,
you are going to see similarities because the settlement
agreement was drafted by with what the Marjorie Stone and
Douglas Act, what legislature told the District and
DER and the party had to be done about this particular
problem, the problem of phosphorus and nutrients coming
off the agricultural area into the water conservation
area and ultimately the Everglades. So that was the basis
of the settlement.
39
The Marjorie Stone and Douglas Act, you didn't hear a
lot about that. I'm not sure it's even been mentioned
here today except in passing. But that's the reason
they're similar.
Now these questions, and what this really boils down
to, it's a collateral attack on the jurisdiction of the
United States District Court. The claim is that Judge
Hoover had no Article III jurisdiction; therefore,
anything that happened in any way connected with
that, including the settlement, which comported with
Florida's legislative views, are somehow coerced.
These questions have been raised over and over again.
If you go back to Judge Hoover's original order
and decision, this issue came up. Judge Hoover
was frankly concerned that in approving the settlement
agreement, was he going to be affecting any other party's
rights other than the parties to the settlement agreement?
He sent the parties out to have some conversations
about this. Papers were filed, and ultimately in his
opinion, and he dealt with this, he dealt with the
jurisdictional questions that Mr. Smith raised all along.
Speaking of the jurisdiction issues, Judge Hoover
heard the same argument in somewhat abbreviated version
certainly you have heard here today. He entered an order,
and he said, The farm interests contend, in Counts 1 and 2
40
of the United States amended complaint implicate
state administrative functions unmistakably clear state
consent or similarly clear act of Congress obviating
that necessity is to settle the jurisdictional standards.
Then the judge said, This court finds this
argument to be without merit as it is directly contravenes
the plain wording of 28 U.S.C. 1345 and ignores
the applicable case law pointing to the contrary. In view
of the seemingly unequivical grant of jurisdiction
conferred by 18 U.S.C. 1345 and the absence of
argumentation of a more convincing nature than that
presented by the farm interest, the court declines to stay
further proceedings. They were seeking to have it stayed
so they can make their jurisdictional argument. So Judge
Hoover considered it. He also considered it at the
beginning of the case as well.
THE HEARING OFFICER: Was it raised by the District
at the beginning of the case; is that right?
MR. REID: Yes. Mr. Smith will tell you I think we
we had this argument already four times. I'll get into
that in a moment. But he'll tell you we didn't raise
it the same way as he is raising it now. But clearly
there are Motions to Dismiss for the lack of
jurisdiction filed by the District in the beginning of
this case.
41
Now in getting to this issue of whether or not the
settlement agreement coerces or whether people are
affected by something Judge Hoover did, or whether the
state process was going to be free, Judge Hoover
dealt with this specifically. And we cited this, and I
apologize for reading a couple of sentences, but it's in
our papers. He said, The agency must propose, this is how
he described the fact or how the agencies were bound, The
agencies must propose those measures set forth in the
agreement which are subject to the APA. They are not
however required to adopt these measures as final action
in the face of conflicting findings of fact, or as
pursuaded that such action goes against the weight of the
evidence established in the Section 120.57 hearing.
Indeed, should the state administrative process
result in a finding inconsistent with that contemplated by
the agreement, the state agencies consonant with their
obligations under state law must respect that result.
He went on to incorporate language in the consent
degree that was not part of the agreement initially
to the parties but which the parties that were settling
agreed to. The agreement does not predetermine
the outcome of any state proceedings. Any provision of
the agreement that under Florida law must be implemented
by state agency through administrative proceedings
42
governed by Chapter 120 shall have no binding affect upon
the agency within such administrative proceeding and
with regard to the agencies consideration of the hearing
officer's recommended order.
It goes on to say, Nothing in the agreement is
intended or operates to abrogate the District and the
DER's duties to act in accordance with Florida law. The
agreement requires the District and DER to fulfill their
obligations under existing state law including the duty to
weigh the evidence on issues of fact and policy and so
forth. The agreement does not require the agencies to
favor the terms of agreement over a hearing officer's
contrary findings of fact supported by competent
substantial evidence.
Now Judge Hoover put all of that in the consent
decree to make it absolutely clear that it was not the
settling party's intent and not his intent that the state
administrative process be coerced or bound in any manner
whatsoever.
But this wasn't enough, and let me just say that
the consent decree does have language that the United
States, one of the litigants, has the right to go back
into federal court under certain conditions absent some
agreement to the contrary.
But it also has language that says it has an usually
43
drafted force clause other than the usual force,
which is things like Acts of God, and so forth, war, and
all that.
This says, this includes unavoidable legal barriers
raised by party individuals not party to the settlement
agreement; in other words, this process. So all of this
was taken into account to make certain that the parties
were not trampling on rights of people that were not part
of this consent degree.
But shortly after this, we were sued by the Sugar
Cane League up here in Leon County, and part of that is
the Sunshine claim that you heard mentioned just a minute
ago. But part of it was also a very similiar claim to
what you are hearing here, and that was somehow the
settlement agreement had deprived the farmers of
their constitutional rights. And it's the same argument.
Judge Davey in that case dismissed those counts, and
he said that he did not find the settlement agreement
mandated these kinds of results.
He said, I don't think the hearing examiner is
going to ultimately be required by this settlement
agreement to make those same findings because this will
I'm sure, be highly contested in the administrative
proceeding; and he goes on and ultimately dismisses these
claims, because he found that the settlement agreement
44
didn't do exactly what their arguments to you today.
Now that was a different party for Mr. Smith's
clients. That was the Sugar Cane League who made
that argument. But then Mr. Smith's clients filed a suit
in Leon County, and this is probably as close to res
judicata as you're going to get. You've got the identical
parties, you've got the identical issues; and, in fact, if
you go and get that complaint and the exhibits and lay
them beside the petition that is before the hearing
officer we're talking about today, you'll find it was the
same thing.
Judge Davey again heard argument, a long argument, a
whole afternoon, and once again dismissed that case with
prejudice with the same findings you have in front of you;
that this was not the proper way to raise this; that this
issue of jurisdiction and so forth is being raised in the
proper forum on an appeal from Judge Hoover, and we had
the same argument that we're making here today and went
through some of the same specifics of Judge Hoover's
findings and so forth.
Then there was the rule challenge that was pending in
the division here before Mr. Kendrick, and this is
ironically the same day we argued in the circuit
court in front of Judge Davey in the afternoon, and
we were here that morning, and again arguing on the
45
same basis, came up procedurally that way, We filed a
Motion to Strike the claim that the rule was invalid
because it was based upon Judge Hoover's lack of Article
III jurisdiction and so forth.
Counsel says there was some problem; there was some
limited time or something such as that. But the fact is
we argued it all morning, and we filed papers, and
everyone said what they wanted to say; and after taking it
under advisement for a period of time, Judge Kendrick
entered an order again agreeing with Judge Davey, both of
Judge Davey's decisions and with what's clear in the
settlement agreement, and what's clear in Judge Hoover's
order approving the settlement agreement.
So once again, it's raised, and now it's raised
again. And I'm making the same argument that I've made
three or four times before, all the way back really to
Judge Hoover to the initial hearing on the consent
decree. You have right now the Eleventh Circuit appeal,
everyone is appealing.
Essentially, the Eleventh Circuit has this issue, and
they're going to decide whether there is jurisdiction
or not. There's been a threat, and I assume it's going to
happen, the appeal on Judge Kendrick's order, although the
rule challenge was settled and it was agreed upon, and the
rule is now in effect, and the substantive part of the
46
rule challenge was not the problem, even though it
supposedly was part of this coercive federal
action, and that rule is going ahead at this point.
But Judge Kendrick's decision on the dismissal of
these particular counts based on this lack of Article III
jurisdiction and so forth is going to go up on appeal. I
assume Judge Davey's decision, because it was entered
with prejudice in Mr. Smith's clients case, will go up on
appeal in the district court, and I suspect down the road
perhaps when Judge Davey's case is finally over, the first
one was brought by the League, I assume that there will be
an opportunity if someone wanted to appeal the decision in
that case.
There are going to be at least three, potentially
three, Florida appellate decisions and one federal
appellate decision on this very issue that you're being
asked to look at today. The simple fact is, and I think
that this came up right at the end of your discussion, it
doesn't really matter what happens in the federal
jurisdictional issue.
This is the proceeding. It's ironic that the parties
have complained that the state is acting improperly; that
we're being coerced and we're doing things that science
doesn't support. It's ironic. They say all that, yet
they run away from the very proceeding that is going to
47
give them a chance to prove that. You've seen that today.
One group says we think can deal with this because we're
going to put on the evidence here; in fact, we heard the
opening argument I think today on that case, and they
think they're going to prove it, and we think we're going
to prove the other.
This is the forum they've been asking for, and
you're going to hear all the evidence, and you're going to
decide, you're going to look at the Marjorie Stone and
Douglas Act, and you're going to look at the SWIM Plan,
and you're going to decide if, in fact, we're carrying out
what the legislature unanimously told us to do.
So I think it's an incredibly ironic situation that
finally we have the proceedings to do it, and they want to
run away from this proceeding. They want to run away
because one lawyer said on behalf of one client says
there is coercion. You can't see it, but I know it's
there even though none of my collegues representing the
same basic interests are not seeing; they're not worried
about it, and going to go ahead with the proceeding and
let this proceeding be the one that decides whether it's
there or not.
Counsel says you ought to stay because nobody can see
this conspiracy but me, and I can't, even if we have
our complete rights in this proceeding, I still don't get
48
any remedy. That's just not appropriate I don't believe.
I don't believe this is the forum that is going to decide
this issue, and so I submit that this court should join
the other three or four forums that have considered these
issues, and you should become the most recent one to
reject them, and we should finally go ahead and get to the
merits of this thing.
THE HEARING OFFICER: Miss Ponzoli, do you have
anything you want to add?
MS. PONZOLI: Mr. Fitzgerald will address it.
MR. WATTS-FITZGERALD: The weight of all
authority is contrary to the relief that's been requested
of you in this motion. We have before us a national and
international treasury that would be the relief
now requested was granted will continue for an indefinite
period of time, because you're asked to become more than
the collaborator that petitioner seeks to cast apparently
the Executive, Judicial and Legislative bodies of the
state of Florida as being the vichy government they refer
to.
I'm not sure if that makes the Governor Marshal
Petain to that or not. I hope not. But what they want you
to do is to avoid being the collaborator in a very
select and careful process, and instead becomes something
far worse in our review.
49
They frankly wish to cast you in the role of the
extortionist judicial officer, the conscience as they call
it, of the Executive of the State of Florida. I'm not
sure that is a role that any hearing officer would be
comfortable in adopting.
But, in fact, the SWIM Act of 1984 said,
essentially boiled down to its essence, quit sending
polluted water to the Everglades, and nothing happened for
some period of time. Ultimately in the course of statute,
you heard a great deal more today than you did in
petitioner's filings to you.
The Marjorie Stone and Douglas Everglades Protection
Act of 1991 said, we mean it. Do it now. Make progress,
and established a much more richer time schedule. The
resolving of the current challenge in this forum
prejudices no rights of any petitioner.
If, in fact, as counsel suggests, a stay for six
month is adequate, it's clear from the filings of which
they joined that the discovery process alone in this case
will run considerably beyond that, and that if this hoped
for ruling that suddenly causes all the federal
courts and every state court and every other judicial and
administrative body that examined the issue to decide
there was some pervasive federal presence that caused
every state officer to ignore the science and rationality
50
and mandates of law to engage in some process designed
apparently to eliminate the rights of the petitioners,
then there will be ample opportunity at that juncture to
address you.
Counsel said in his argument that this is a very
specialized process, and I could not agree more. It is so
specialized that the appearance of the United States
before this body is an incredible rarity. If I were a
wagering man, I would venture you have not seen the United
States in here before.
THE HEARING OFFICER: I cannot say that I have.
MR. WATTS-FITZGERALD: That's a very telling point,
sir, because I have to defer to Mr. Reid, and I'll take up
the fact that he stole my thunder later. I have here
portions of Judge Hoover's adoption of the agreement, and
it so happens that Mr. Reid read precisely the portions I
highlighted to call to the court's attention.
I particularly like the one about nothing in the
agreement intended to operate to abrogate the District and
DER's duties to act in accordance with Florida law.
Judge Hoover never reserved the right in that
agreement or his order to modify the SWIM Plan. The
SWIM Plan does not come back before him in that context
or that format. What he reserved is the right as he
absolutely can to further address federal interests or
51
federal rights if asserted in the proper context even if
arising out of this agreement.
He says repeatedly in his adoption agreement his
understanding and the understanding of the parties,
because it was laid out very clearly where the
adminstrative process of the state of Florida would be
pre-eminently in the development of that SWIM Plan; and,
in fact, every party represented in this room participated
in multi-year effort to produce that SWIM Plan.
The SWIM Plan is not a creature of the federal
lawsuit. The SWIM Plan is a creature of the 1984 law and
1991 law. Now we freely concede, as all counsel will,
because they earn their living at it, that litigation is
inherently coercive in nature.
Let's face it, we're trying to get somebody to do
something that they don't particularly care to do.
Whether it be paying monetary damages or refrain from
activity that is anti-social, whatever it may be, it is
coercive in nature, but not coercive in the sense or in
the way that is urged upon you.
What the federal litigation did was focus attention
on the inaction of the state agencies in meeting certain
obligations it pre-existed under a variety of mechanisms,
the outstanding Florida waters, the original SWIM
Act.
52
We wait with great interest and have sought it
continuously through this process to no avail for
someone in the petitioner's camp to explain to us
exactly where this coercion was, because we don't
quite understand how we managed to coerce the entire
legislature of the state of Florida to unanimously adopt
the Marjorie Stone and Douglas Act. We also don't put
Governor Chiles in the role of Marshal Petain.
You have been presented a gross mischaracterization
of what he has done. What he did was, in fact, to execute
his obligation as the Chief Executive of the State, not in
any relinquishment of state authority or sovereignty, by
coming in and expressing in perhaps colorful terms that he
might be excused because frankly it's a novelty in
federal court for the Chief Executive of the State to
come in and concede that we done wrong; and that's what
the Governor did.
He walked in and said, We were wrong. What
do we do to fix this now? He didn't say to Judge Hoover,
Judge Hoover, you're an eminent jurist. One of the most
highly respected judges in the judicial onclave. You
tell me what to do. You set Florida law. He said, Where
do we go from here? Let us make it right. So it is
no surprise with some months later with that level of
attention and support things did proceed, and the case was
53
ultimately settled on terms not totally satisfactory to
either parties.
The United States would have liked more and certainly
the parties who were then the defendants would have liked
more. But, in fact, the Governor exercised legitimately
his executive authority admitting liability, and said,
let's get on with the job, which is precisely what the
legislature said in the Marjorie Stone and Douglas
Act.
They say the Management District was not a free
agent because of this coercion and intimidation. They
never addressed the state legislature. In fact, in an
artful attempt to soften the blow of what clearly is going
to be said here today by ourselves and the Water District,
you heard for the first time today a view of the Marjorie
Stone and Douglas and how it fits into this entire
picture, but you didn't see that in the pleadings.
I think there's a reason for that. What the
petitioners, in fact, are is blind. Blind to the fact
that what we really encounter from Judge Hoover was
federalism in its finest hour. He defers specifically and
repeatedly to the administrative processes established by
the state of Florida for developing the standards and why
the appellate court earlier on said, I believe the
opinion at Annex H to petitioner's exhibits,
54
the appellate court said, It could be possible that
under this process in federal court we will see a federal
judge take on the task of the Florida administrative
proceedings and establish miracle standard for the level
of pollutants entering the Everglades.
Interestingly enough the dissenting opinion in that
case, Judge Hackett said, Wait a minute. We don't need to
go that far. Judge Hoover is sensitive to this. He may
not do that. He will protect anyone's rights. The system
has the capability of protecting rights, and indeed Judge
Hackett had the best insight. That is exactly what Judge
Hoover did, his order adopting the settlement agreement.
He very carefully preserved the rights of the state
of Florida, recognizing beyond which he would not venture
and saying if ultimately through that whole process it
becomes clear that provisions of the settlement agreement
cannot stand in the face of contrary scientific
evidence, et cetera, then that's going to have to be
addressed by the parties; and if you can't address it,
come back to me. Very appropriate reservation authority.
The relief sought here is a little better than
an attempt to entice you into precipitating otherwise
non-existent federal state crisis. While DOAH may be the
caution in one sense, very limited sense even by the case
cited by petitioner of the executive, that is no basis
55
for ignoring the extortionate nature of the language.
If you go to the petition, Paragraph 12 and Page
7, Paragraph G and Page 41, and their Prayer for Relief,
it is beyond to belief that they're asking you to hold
hostage a process that's ongoing by their own admission in
other tribunals.
Mr. Reid ran those down, but you have heard from a
number of parties that there are pending federal appeals.
There are pending state appeals. In fact, you're
colleague's ruling on this particular point I understand
is also a subject of an appeal. They want you to lay
until you're ordered by some judicial authority to
continue, direct quote from their brief; and yet, we can
find no authority, no precedent for that posture to be
adopted in an administrative hearing here in Florida. We
did not find that proposition under federal law as well.
Curiously enough, throughout the lengthy exposition
of the law quoted by petitioner, there is no authority for
a proposition that this is a remedy available in this
proceeding. It is the ultimate collateral attack. What
it would essentially cause is the parties to have to go to
an appellate court and to put your finger on it, to
mandamus you to proceed with this; and they
ignore Marjorie Stone and Douglas, which says get the job
done. Move on with the process.
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In fact, Marjorie Stone and Douglas in the outset of
that statute says, expedite these proceedings, join
collateral claims that may come up, but move the process
forward, and that is what this hearing should be guided
by, clear mandated Marjorie Stone and Douglas.
Resolve challenges as early as possible on their
merits, and petitioners studiously ignore that. It's
interesting, Mr. Hearing Officer, because I'm
not certain just what the answer is. If one assumed
that there was some tainted course of effect of the
federal litigation, I suppose we could strike the Division
of Administrative Hearings sealed down, and put the super
court seal of the State of Florida, because that's what
you're being asked to do here.
Let's assume for the sake of argument that the
scientific evidence provided by the United States in the
process of developing the current version of the SWIM Plan
and by DER and by the experts of the South Florida Water
Management District and by others who participated in the
process, including experts on behalf of many of the
petitioners here, what would we do if there was some
illegitimate coercion? Would you throw out the plan under
some theory as espoused by petitioners saying, go back to
the drawing board and do it again.
Even if there is a substantial likelihood, you're
57
going to end up with the same plan. That's a little
assinine, but apparently that's what is being asked here,
throw the Plan out whether it passed muster under Chapter
120 for being non-arbitrary, non-capricious,
well-founded or even appearing fairly arguably or anything
in that standard that applies and that standard
may change somewhat depending on the nature of the
challenges.
We don't understand what the relief will really
entail down the line, but it seems to us that this very
specialized process is to evaluate the legitimacy of this
plan under Chapter 120, not to become a super court
addressing collateral attacks on the jurisdictions of
tribunals that are themselves fellow processes addressing
those issues.
One final area I would like to address, although, I
think it's is somewhat getting the field of the true issue
before the hearing officer at this point is the
marginally relevant verbage in predecessor pleadings. We
view much of what's said there as ill-disguised attempt to
posion the well before this hearing officer against a
party with substantial interest in the outcome of this.
THE HEARING OFFICER: Are you talking about the
Motion to Stay now?
MR. WATTS-FITZGERALD: Yes, sir. There are
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assertions in there regarding what I characterize as
scorched earth approach to the litigation in the federal
court, and it's part and parcel of this claim of coercion
that the United States intimidated and coerced by so
overwhelming the parties there that there was a need to
spend substantial funds on the part of South Florida
Water Management District and that was part of what
started them on the slippery slope to this kind of federal
intrusion.
Well, in fact, there were substantial sums expended,
but it was a very vigorous defense including raising the
issue of jurisdiction that was resolved by Judge
Hoover. They also assert, petitioner asserts, the
number and duration of depositions were part and parcel of
this scorcher effort.
In fact, anyone can go to the record of those
proceedings, because they are public records, and find the
designation of expert and consultants approached 125,
almost two-thirds of those were of the defendants in that
case, not of the United States.
The issues were complex and it is by all of
the participants in the lawsuit that a great deal of
effort would be necessary to both defend and pursue relief
sought by the United States which would naturally
require subtantial depositions.
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It may well be that in this proceeding that we see
designation of experts and witnesses. The number will not
fall far short of that. It was not, as the casting of
petition, an effort by the United States to impose some
burdensome effort, litigative effort, on the
defendants, which, in fact, arose from the very nature
of the proceedings that reality is obscured in the
petition.
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