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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION
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UNITED STATES OF AMERICA,
vs. SOUTH FLORIDA WATER MANAGEMENT
and WESTERN PALM BEACH COUNTY
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| MIAMI, FLORIDA February 14, 1989 |
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| TRANSCRIPT OF HEARING PROCEEDINGS
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APPEARANCES:
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All right. I am going to call the case of United States versus South Florida Water Management District and others.
principally on the motions to intervene of what I will describe as the agricultural and municipal intervenors, and so would you ladies and gentlemen and announce your appearances for the record please.
With me I have Mr. Dexter Lehtinen, the United States Attorney for the Southern District of Florida. I have Robin Herman, chief of the civil division and Richard Harrison, co-counsel, Assistant United States Attorney.
District.
Peoples, Earl and Black representing the agricultural intervenors.
plaintiff intervenors. I have an application under 4-F to move as limited appearance Mr. Robert Dreher, Mr. James Trip for purposes of this particular case. I have their resumes attached to the application.
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can just hand them up to me.
City of Belle Glade.
the South Florida Water Management District.
hearing any motions to dismiss. We are not ready for that yet in this case. What I am principally interested in this morning are these motions to intervene by prospective defendants. Is that your understanding as to why we are here?
going to argue the Rule 19 issue because that directly goes to who will be a party in this case. As you know, our position is the Corp. of Engineers has to be before the court as a separate defendant or the case has to be dismissed.
tactfully as we could that we would argue that motion this morning.
5 would like to start? These are your motions, not the South Florida.
actually moving to intervene, so I would be happy to let him go first.
ought to be. Mr. Earl.
court.
involved in farming and agriculture in South Florida, Your Honor. I am representing Beardsley Farm, Inc. which is a family farm of about a thousand acres in the Everglades agricultural area; Mr. David Beardsley I believe is on his way here. They have been out there for 4 generations in the Lake Okeechobee area. Beardsley Farms, Inc. raises vegetables and sugar cane.
Rick Roth, they are all coming together and they are on their way. I apologize they are not here. They wanted to be here, Your Honor.
wife asking which exit they should take to get to the courthouse.
6
it.
sugar cane. They are about half way between the city of Belle Glade and the 20mile bend if the court is familiar with that area. Again, they are in the Everglades agricultural area.
Boynton family farm. They do business as a general partnership called K.W.B. Mr. Wayne Boynton farms that operation. They have 640 acres. They are independent sugar cane growers. Your Honor.
associations of agricultural interests. The first, Your Honor, is the Florida Sugar Cane League, Inc. they have 132 members. They are not for a profit corporation organized in 1964 Mr. Andy Racklee, if you would stand, is the general manager of the Florida Sugar Cane League and the spokesman for the industry in that capacity and the director of that institution.
cane, Your Honor, primarily, Florida sugar can which is
7 primarily centered in the Everglades Agricultural area, Your Honor, with a little bit in other areas of the lake.
Florida Fruit & Vegetable Association. They have 7 hundred members. They grow vegetables, fruits and tropical fruits. One third of their members are in South Florida, Your Honor, and they act as a medium for producers, shippers, growers, to relate and deal with Governmental and private agencies.
the Western Palm Beach County farm Bureau, inc., and I have a board member with, M. Gene Badge. Mr. Badge, if you would stand.
Beach —
That’s an affiliate of the State Wide Farm Bureau. They have 551 members in Western palm Beach County. They grow lettuce, celery, radishes, beans carrots, cabbage and sugar cane in the Everglades agricultural areas that affect this case, Your Honor.
key component to South Florida’s economy. The sugar industry alone, Your Honor, represented by Mr. Rackley’s organization pumps one point 5 billion dollars into the economy of South Florida a year.
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Florida is known as the winter vegetable capital of the United States. It supplies throughout the winter vegetables for the entire East Coast of the United States.
clients are located in what is called the Everglades Agricultural Area. If I may approach the graphic, I think it might illustrate it.
District which shows their project, the levees, canals, structures and it was initially know as, I m sure the court is aware, as the Central And Southern Flood Control project.
specific component of that was a survey commissioned by the Federal Government of the best agricultural lands surrounding Lake Okeechobee. Soil work was done; that defined the boundaries as what we know today, Judge Hoeveler, as the Everglades Agricultural Area.
used that agriculture productivity that you see represented before you today to justify as a benefit to offset the costs of this enormous project. Tit was one of the two principal justifications that they presented to Congress, was this agriculture productivity.
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represented by the family farms out there, before this project started in the late 1940’s by the Federal Government, the Federal Government and we are here today because they induced us to expand our operations and make this into an agricultural area, as part, Your Honor, of an overall system approach tow water management, to prevent flooding of the urban areas, to provide for sources of water for agricultural and urban areas and water storage areas, Your Honor.
defined by these canals that I am outlining for you and levees south of Lake Okeechobee.
will see areas that look, with blue dots here, called water conservation areas, 1, 2, 3 and there are sub units of those.
Your honor. They worked as part of the system. They were designed to store water and to provide water storage and water release and discharges for water irrigation also. There were public dollars spent to acquire these properties to store water.
Water Management District, then known as the Central and
10 Southern Flood Control District, entered into a contract that I suspect was not given much thought.
fish and Wildlife Service to provide for wildlife management as an ancillary use within water conservation area one.
area today. That has been renamed a Loxahatchee National Wildlife Refuge, but it was purchased for and is relied upon by agriculture and was intended by Congress as a water storage area for urban areas and for agriculture.
intent of Congress and the Corp. of Engineers, the United States of America, and the investments that they have made out there, Judge, is what makes this case so important to agriculture.
intervene as a matter of right and also alternatively pursuant to the court’s discretion and authority.
intervention of right as I am sure the court is aware, The intervention must be timely.
property or subject matter or transaction which is the subject matter of the litigation. Three, as a practical matter, the intervenors’ interest in protecting that will be
11 impaired.
by disposition of the case; and four, we have a burden of making a minimal showing, as the Eleventh Circuit has recently said, of the inadequacy of representation of the present defendants and that is the Water Management District and the Department of Environmental Regulation, state environmental agencies.
timeliness, Your. We intervened on December 12th. We were, in fact, the first potential parties to file any responsive pleadings when we filed our answer and motion to dismiss with a motion to intervene.
and our specific interest upon which we base our request for intervention, the family farmers because of the individual impacts on their operations, daily operations – of this lawsuit and the associations through their derivative powers, representing those members and in their own capacity because of the economic damage that will be done to the associations, have several interests which will be in the outcome of this litigation, Your Honor.
not some proposed plan, but existing land use in some cases for four generations of farmers out there, certainly land
12 uses after this project was started and they relied on it to expand their operations and build sugar mills that cost hundreds of millions of dollars, and built packing houses and other operations.
impacted by this operation. One of the proposals that the court will hear as this case goes along is to abate, as specifically requested by the United States Attorney’s Office, to abate the nuisance, stop all discharges into the water conservation areas that has nutrients in it.
require the farmers to back up the water. Don’t provide the irrigation return flows that they contracted for when they got here and started to build out here but require them to hold all the storm water, the rainwater on their existing agricultural uses and take land out of production. That would be catastrophic to their farming operations, Your Honor.
existing land use which is agriculture and be able to protect that. We believe we have to be in this litigation to do that.
waters that we relied on when we went out there and expanded in reliance on this federal system of water conveyance and
13 management.
return flows to get storm water off our property. Vegetables, particularly, are very sensitive to variations in water levels.
time when we have these storms, we cannot farm. We cannot use our land.
United States Attorney’s Office has asked you to compel enforcement by these two state agencies. Enforcement against whom? What are we really talking about in the real world the practical world as the Eleventh Circuit says?
agriculture. A fair reading of that complaint, Your Honor, filed by the United States Attorney, indicates that it is directed to agriculture, directed to mandating these agencies to go after agriculture.
Honor. I would suggest the best evidence of that is the Magistrate held a hearing in this case on some discovery issues on March 7th.
hearing said the following – I direct the Court’s attention to pages 33 and 34 of that transcript which we filed, which
14 has been filed with the court.
Honor, in many places in the world, but there is only one Everglades." That’s Mr. Rackley’s land use that she is talking about, Your Honor.
second reason, because it concerns water quality and agricultural pollution. It concerns fertilizers, pesticides, herbicides," and I don’t know if you’ve had time to read this morning’s newspaper – she goes on to talk about allegations of mercury.
talking about the pollution, says. "This is a very serious problem that we addressing in this case.
practices, Your Honor. We need to be in here to defend ourselves and our existing practices and interests."
point on the question of enforcement. It seems to me that you are saying that you ought to be able to intervene to keep the Government of the United States from requiring the State of Florida to enforce its own laws and regulations. That kind of gives you an academic problem, doesn’t it?
There is a case called Manasota-88 which the United States
15 relies on. It has been heavily briefed for you. It is an order from Judge Castanza. It is an ongoing case. It has been appealed up to the Eleventh Circuit. That is more the case, Your Honor – it talks about in terms of analysis.
United States, Manasota--88, sued the United States of America, the Environmental Protection Agency, did not sue these two state agencies, and said, "United states EPA, you better do something about clean water violations by various operations in Florida" but they didn’t sue the state agencies where the immediacy comes from, the impact with the regulated community.
Group, the power companies, moved to intervene. Judge Costanza –I don’t know whether it will stand the new child scrutiny, that is, the more liberal test the Eleventh Circuit has now after February, but Judge Costanza said that it wasn’t this immediacy. He allowed der as an intervenor. He didn’t allow the Power Coordinating Group.
the National Audubon Society, who is in this case, had initiated this case by suing the United States attorney’s Office or Epa realistically, not joining these environmental groups.
16 that you better do something about this agricultural pollution. Then we’d have a similar factual issue question but the closer cases, your Honor, the better cases which are the of Niagara Falls case, and the Hodel case, the mining case in Kentucky. Niagara Falls, I think, somewhat illustrates somewhat the situation.
Water act sued the City of Niagara Falls. The waste water treatment plant wasn’t working, polluting. An unincorporated association of discharges, industrial dischargers who contributed to that treatment system moved to intervene.
said, "Whatever is against the opposition of the United States, whatever is done in that litigation to adjust what has to go into that plan and come out of that plan is going to affect these industrial users and the city really isn’t, they have public sector interest they are not really adequate to represent these private sector economic interests."
case, which is an Eastern District, I think, of Kentucky case, and environmental mental group – I think it is National Wildlife – sued the Secretary of the Interior, judge, under the Surface Mining Reclamation Act, the Mining
17 Act, seeking mandatory enforcement of that act against miners.
granted intervention in that case because the court said that the coal industry, just like the agricultural industry, is the real focal point and object of this suit.
get out of this suit, agriculture. We need the ability to defend ourselves and present the vital interests of agriculture and to get the story told properly.
as practical matter, the disposition of the suit will have to impair the ability of the intervenors to protect their interests. I think the clearest way to see that, Your Honor, is to look at the complaint, as the law requires us to do.
relief, Paragraph 68 one of the elements of relief they seek from this court is that South Florida Water Management District be mandated to abate the nuisance.
nuisance they are talking about? You find that out in paragraph 48 of their complaint where they say that the nuisance arises, and if I may approach the graphic again, Your Honor, the nuisance arises from the discharge from the
18 South Florida Water Management District from Structure 5, which is right there, that is, discharges from the agricultural area into the water conservation area one and discharges from structure 6, which is right there, Judge, which discharges into here.
down or restrict those operations. Those structures are an integral part of our ability to discharge agricultural return flows.
aspect of this case which I think you will see as the case develops. The United States is not here in their sovereign capacity.
a property owner, not in their sovereign capacity under the Clean Water Act where they have far reaching powers under the Endangered Species Act to stop environmental problems.
done that is to avoid the Congressional mandate. Congress has mandated in the Clean Water Act in two places, the irrigation return flow such as those we are talking about for my clients’ operations are exempt from the Clean Water Act.
that Congressional mandate. We have a nuisance claim from
19 the United States as a property owner.
also that the South Florida Water Management District and DER be compelled to enforce state laws – again under that mining case, Your Honor, which is the closest on point we are the object and focus of that.
Manasota-88 case or some of these other cases. When enforcement comes, the immediacy is there with our agricultural intervenors.
met in this case by the agricultural intervenors is what the Eleventh Circuit called in February in the Chiles case the minimal showing of inadequacy of representation by existing defendants.
understanding the nature of our interests asserted, agricultural interests in this case. We do not assert a generalized interest. We assert a very particularized agricultural interest.
management or equitable water management throughout South Florida, I think the Water Management District could adequately represent that.
environmental activities under certain statutes conducted, I think the Florida Department of Environmental Regulations could adequately protect that interest, but, Judge, we have much more narrow interests that aren’t reflected by those agencies, and that is, Your Honor, we here seeking to protect our right to continue our land uses, our irrigation return flows guaranteed by congress, and other ongoing agricultural activities and to at least be heard if this court is going to start the engine generating enforcement compliance.
agencies should not be representing us is again contained in the transcript of the March 7th hearing.
and eleven of Mr. Rogers. Special Counsel for the Water Management District, where it says on the bottom of the page of ten that what we are really looking at is the land use of unprecedented proportions.
to be in the agency’s own words, why we need to be in this case.
Management District says, "But if I were representing the agricultural interests, this would be my waterloo. I would have all the guns out because this relief that may be
21 accorded in this case against us" – he’s talking about the Water Management District – "and against the state, the real parties in interest, the people whose ox who are going to be gored are going to be those people discharging phosphorous into this water system.
dairy farmers to the north. Lake Okeechobee, and agricultural, yes, to some degree south of the lake that I’m representing which is agricultural."
that the agricultural people in particular have to devote substantial resources to this case.
South Florida, and this is probably the most important case in the history of agriculture in South Florida.
Court to allow us to intervene. Thank you.
Mr. Earl over the interests of the farmers in this case and the concern they have over this case.
provide some back ground to it by way of personal anecdote. In a prior life I used to represent the Environmental Protection Agency, and we used to have trade associations
22 file suits every time we sneezed.
pollution area by EPA was challenged by at least one trade association. I think that’s true. I have to back and check and make sure that one didn’t slop by, but by and large that was the case.
of Appeal. What happened was that we came to find out these trade associations on Connecticut Avenue, on K Street, they don’t carry out the activities.
sugar. They are not making power. They are not doing whatever. They are a group of executives and clerical people who come to work and go home, and they don’t do the activities. They themselves don’t have standing.
activities of their members. Mr. Earl talked about people out there, hard-working farmers. He is absolutely right. He didn’t talk about associations this morning, if you recall. He didn’t once get into associations.
have on their own any standing and what we are concerned about in this is that we are going to get done World War Three here, which is what Mr. Lehtinen has started, and we are going to get through deposing people in hot July
23 afternoons for hours and hours and hours and having Mr. Earl ask questions as to the feasibility of technology, to the cost of technology, to the impact on foreign competition, to the upstream versus downstream users, to the way we measure phosphorous, and that can be a very tricky line of questioning in and of itself.
case is invalid because the machines were not calibrated properly, but you can spend an awful lot of time in discovery on matters like this.
times because when we are all don e with this case, Mr. Earl’s clients say, "Well, we lost but we are sorry we weren’t really parties before the court."
Association. We litigated for about three years, torturous litigation, a one hundred and fifty thousand page record.
groups, the coal industry; Peabody Coal said, "Well, we’re sorry, we don’t like the result."
the National coal Association. " They said, "We didn’t like the result. We voted against the settlement, so we will just see you in the Fourth Circuit anyway."
24 way we resolved that, we had the Administrator of EPA tell the Coal Association that that was the last time we were going to negotiate and the got their people in line.
the National Electroplating Association. We got done in that – the same law firm had a new Southern California Electroplaters Association; the same issues, the whole thing over again.
and if the trade associations are going to be in here as full parties deposing people, and we are talking about hundreds of experts.
good guys and there are bad guys and it’s easy, you stop delivering polluted water. I think we will find, all of us, that this is going to be and enormously subtle and sophisticated case, intertwined scientific disputes here.
for a long time, will tell Your Honor about the problems with rain fall, phosphorous and rain fall.
eliminate all artificial phosphorous in the Everglades, we still have a problem. I am not saying that isn’t a reason not to eliminate artificial phosphorous, but this is a tough case.
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discovery is going to be brutal, and all we are saying is that Mr. Earl should come into court and say, "My associations represent their members. Their members have by-laws which say they can bring this suit.
Association. There was a vote of the Board. There was a vote of the members and I have talked those members they are going to be bound under collateral estoppel as any other party in court, so that we don’t have to relitigate and bring the same experts in over and over again."
practical efficiencies in this case, Your Honor, and frankly we haven’t seen any real response to that by Mr. Earl.
to the issue, but he’s never really said, "Yes, my people are going to be bound. "
our problem. It is his problem. He’s the one who has to come into court and show that he has real interest in this case.
litigation. If I lose, I get to do it over again. If he’s going to be in this case, it’s sauce to the goose and sauce for the gander, and he gets stuck with factual findings of
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Your Honor, just like we do.
down the pike here to a trial, I don’t know how far away, but we are looking to a long trial.
and we don’t want Mr. Earl through his associations to merely say, "Well, I am sorry, I lost, but now I want to try it in state court."
be a two-way street. Thank you, Your Honor.
generally not a "tippy-toer," and I want to address that issue directly.
is a big part of their argument. The Eleventh Circuit in reversing Judge Ryskamp in the Chiles case in February of 1989, made it clear that in this circuit standing is not a requirement of intervention.
talking about, is not a requirement of intervention that you look to the rule of intervention and the four elements that
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I talked about, Your Honor.
you can look at the standing analysis to gauge the interest, and if you do that II think, Your Honor, the associations clearly have standing, number one, as I said in their own right.
reduced, if they can as Congress has told them, they cannot have their irrigation return flows.
assessment on production of members, are going to have less income and obviously Mr. Rackley may have to start laying off some of his professional environmental agronomists staff, so they have which the Supreme Court recognized in the Hunt V. Washington State Apple advertising Commission Case, the associations themselves have a direct immediate interest.
How many producers do you have in the Florida Fruit and Vegetable Association?
members, Your Honor. That includes more than just producers. A third of those are in South Florida.
organizations, which probably comprise several hundred
28 organizations, businesses, do you concede that if you lose they will all be bound?
judicata operates after this case is over. Only a gypsy fortune teller, as Mr. Rogers indicated, given the scope of this case right now and the interests involved, can tell us today what this court’s judgment is going to embody, what issues are going to been in that.
guilty of malpractice to advise my clients at this time to sign on to a blank sheet here.
effect, and it is in our brief. It is in the General Foods versus Massachusetts case. It is operation of law.
they are going to be bound or not bound by the issues that were determined in their participation. It is the function of law. We cannot predict that now and I would –
issues are. Will be bound on the issues –
I have outlined for you.
29 know why you want to intervene?
feel that all several hundred in the Florida Fruit and Vegetable Association will be bound by whatever result takes place?
determined, Hour Honor, if they participate and those issues apply to their operation –
principles of res judicata would bind them just as it will, Your Honor, and that’s what I find when we talked about adequacy of representation – no similar demand was made by the agencies for the Environmental Defense Fund or the National Audubon Society.
were not asked to stipulate up front that all their members are going to be bound.
throughout the country going to be bound or the ones in Florida from instituting other actions against agriculture or the water Management District?
only determine that after the cake is baked and you see what it
30 looks like.
then it’s either precluded by operation of law or not precluded.
Foods, the First Circuit, held that two of the three companies were precluded because they gad contributed and the issues were the same. They tried to bring another suit with the same issues in Federal Court.
circumstances, yes, Your Honor, our individual members would be bound, to answer you question.
respond?
the issue. The Chiles case deals with standing. We are talking about associational due process. We are talking about a large corporate farm, five years from now says, " I was against that lawsuit back five years previous from the beginning.
thought it was the wrong timing, the wrong issues. I didn’t want them to do it. I refuse to contribute and I
31 refuse to acknowledge Mr. Earl as my attorney of record.
over again. I’ve got a hundred expert witnesses I want to depose."
reason the environmental groups are in a different situation is that we are not, perhaps, going to have to issue permits to them, require them to put in massive new land use control programs. ‘they’re not really the regulated public.
groups. They are not really realistic future litigants on the scale that we are talking about with the agricultural people. One is the regulated industry and the others are interested parties.
conflicts within the agricultural industry.
treat phosphorous on some agricultural lands as opposed to others. Some of these people use fertilizers. Some don’t. Some of these people use a lot more water than others.
if this gets to the relief stage as to how we reduce phosphorous and who is going to have to take the biggest chunk of the cost.
32 re-arranging of land use within the agricultural community and we may find the vegetable people who use a lot of phosphorous fertilizer at odds with the sugar people.
In the cases that I am referring to involving the large industry dischargers subject to EPA, we invariable had the large industry at odds with the small because they could afford the technology a lot better and they saw this as almost an anti-competitive way of getting rid of the small end of the scale.
here and we are worried about the people who have had no role in this lawsuit and who may affirmatively have decided not to bring it.
there was a vote, whether he is presumed to be attorney of record for the very people that provide standing.
association executives, but I doubt he’s presumed to be that for the majority of people out there, and we want him to stand up here and say, "I have sent notices to these people, almost class notices. They are going to be subject to this lawsuit."
down the path here of a very, very expensive
33 litigation, and then find that we are going to have to do it all over again.
hasn’t said it.
going to be bound, and he started getting into the question of what issues there will be and ‘we will have to see and wait and see," and "dotta, dotta, da."
know that we’ve got a real live, breathing, kicking litigant here who represents his interests.
Thank you, Your Honor.
response to counsel’s new assertions, in our consolidated reply we do provide the filing with notice sent out by, I think, at least two of the organizations – I can represent to the Court as an officer of this court that the associations have advised their members of their intervention in this laws suit.
supposed to be applied with some degree of symmetry and fairness. It’s not because you’re and agricultural or trade association.
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what counsel is asking, is if you apply it to the National Audubon Society or one of the environmental groups which in fact I am a member of.
and it is absurd, and the law will determine, Your Honor, who is bound and who is not bound after this case is over.
the fact that National Audubon Society will be bound by a result.
that that member would bring a lawsuit in his or her own right.
Audubon Society that’s true. That’s not true in the case of the Florida Audubon Society. Many members of the Florida Audubon Society all the time file administrative petitions and litigate environmental issues on their own behalf.
should be bound just as any other group is bound.
intervention before I have heard from the Government, it would seem to me that if this litigation is as significant as counsel indicates, and both of you indicated, even though we may not be able to satisfy ourselves at the moment that
35 all these interests are completely buttoned up, I would think that we ought to get as many people buttoned up as we can, if intervention is going to be permitted at all.
representatives of the cities want to say anything about this subject?
now or just on the issue of whether the agricultural intervenors are bound by the –
to hear the motion from the cities’ standpoint. Then I want to hear from the Federal Government because I have limited time.
10:00. We can go a little longer if necessary, but I would like to get all the arguments in.
Your Honor. My name Tom Andersen. I represent the City of Belle Glade. Your Honor, with me here who have the Mayor of the city of Belle Glade, Mr. Thomas Altman, Would you stand up.
Attorney. Mr. Baker has been the City Attorney of Belle Glade since 1962.
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here has a defendant pursuant to Rule 24-A. The city is a small, rural agricultural community. It has a population of 18 thousand.
canals and waterways. Belle Glade is right here. It is at the southern rim of Lake Okeechobee right in the very shadow of a very large dike known as the Hoover Dike.
of Belle Glade, having just gotten on its feet in terms of its municipal status and being incorporated, was literally wiped out by a flood which occurred when a hurricane passed over the lake and broke the existing dike. Two thousand people were killed.
the citizens of Belle Glade and the City of Belle Glade have on this network of canals and water storage conveyance that is at issue in this action.
here and the North New River Canal, both of which as you will see make their way toward Conservation Area Two A and Conservation Area Number One.
A is just below the Loxahatchee. So Belle Glade, by virtue of this, has its discharges running toward the area that is
37 at issue in this complaint, ultimately this way.
at this moment is celebrating what is called its "Black Gold Jubilee".
it is soil. Agriculture is Belle Glade’s life blood. Agriculture is at issue in this lawsuit.
prosperity of agriculture but Belle Glade has other interests, too.
24. Timeliness has not been disputed. I might add that the defendants haven’t disputed Belle Glade’s intervention as well insofar as their papers show. Only the Plaintiff is disputing the interests of Belle Glade in this litigation.
interest, the Chiles court has recognized that this is really twin sides of the same coin. If you have an interest, you try and intervene as a defendant, particularly, then obviously that interest is going to be impaired. So I would like at those two together.
representation by the existing parties. I will address that in a moment.
38 have described its interests in an agricultural economy that it is utterly and entirely dependent upon, but it has another interest, too.
system. The City of Belle Glade has a municipal waste water treatment plant that discharges its effluent either into the Hillsboro Canal or the North New River Canal, depending on what the water levels are at any point in time.
conservation areas.
concentration, limitation in phosphorous is an issue in this lawsuit, 3 parts per million. Right now the defendants have promulgated a plan, what’s known as the "swim plan’’, the Lake Okeechobee Swim Plan which is proposing, as we understand it, a limitation going into the lake of phosphorous of point one eight parts per million.
District would like to see levels substantially below that going into the water conservation areas and this swim plan.
address the very problem that the plaintiff has brought this lawsuit over.
problem if the plaintiff gets the relief it seeks which is,
39 in terms of its complaint, nutrient free water.
off that flows from parking lots, from lawns which use fertilizers, which use pesticides, will also produce nutrients potentially, and thus create an interest in whatever levels the United States seeks to achieve in this litigation.
seeking to have the state enforce its existing regulation.
all. We believe what the United Sates is seeking to do is to circumvent a planning process.
legislation which has been mandated be state legislation by bringing this lawsuit.
under that process to participate and cooperate in the development of plans for the disposition of the water that’s at issue in this action.
going to have a problem because any participation in the administrative action is going to be moot because what Your Honor rules is going to be the rule of law insofar as those administrative proceedings are concerned.
a state power that has expressly recognized the right of municipal corporations such as Belle Glade to participate in planning for its water sources.
discharger and in addition to its statutory mandate under Chapter 373, in the "Swim" legislation is, of course, the interest in the agricultural economy.
base are inextricably interwined with the fate of agriculture in this action, that in itself accords it a compelling interest, and interest which is different from all the other communities in South Florida, most of the other communities in South Florida. As goes agriculture, so goes Belle Glade.
most instructive case which exemplifies Belle Glade’s interests in terms of its economic and its social, political interests in this lawsuit is reflected in Reserve Mining Opinion.
41 Great Lakes Region where the United States had sued Reserve Mining for the discharge of taconite tailing into the Upper Great Lakes. Reserve Mining was a defendant in that case.
Reserve Mining because if Reserve Mining was shut down, so, too, would those cities.
shut down, so too will the City of Belle Glade.
Your honor, the existing defendants here, one is the Department of Environmental Regulation. DER:s interests in this litigation is as a single purpose environmental agency – it has a mission, a mission which the state legislature has mandated and one which is appropriate to its interests, the environment.
single purpose water management district. It has a statutory mandated obligation to manage water.
far reaching. They are social. They are political. They are economic, in addition toe environment and in addition to water management; and that large document over there sitting on the table here is the City of Belle Glade’s comprehensive plan which it just promulgated, which requires it to consider drainage, which requires it to consider its
42 economic tax base, and to plan for the future.
the planning. If the plaintiff has its way and it is not permitted to participate in this legislation, its ability to participate in the swim planning process that so vitally affects it will be useless.
City of Belle Glade should be permitted to intervene in this action.
Mrs. Ponzoli.
representing the United States in this water quality suit in which we seek to save from nutrient destruction the Everglades, the historical Everglades as represented in that first water conservation area, the Loxahatchee National Wildlife Refuge and Everglades National Park.
adequately sets forth the unique and special qualities of the Everglades.
analysis that we have to do of this suit and the relief that we seek in order to consider the agricultural intervention.
Environmental Agency, DER, and South Florida Water
43 Management have failed to enforce their state law on water quality under 403, 373 and the Swim Act. There is no effort to do and end run around the Federal Clean Water Act.
responsibilities for cleaning up water to the Federal and certain to the state, and there is a partner ship Agricultural pollution is a type of pollution that was left to the States.
promulgated laws which it is the Federal Government’s position that these agencies are not carrying out. They are not carrying out their responsibilities.
Florida has by bringing this contaminated and polluted water into the Everglades, and they have breached two agreements with the United States, one concerning the Everglades, one concerning the Loxahatchee National wildlife refuge.
breaches, We are suffering damage, irreparable damage in our estimation. We are suffering changes from diverse ecosystems to a monoculture of cattails in the amount of six thousand plus acres in Loxahatchee national wildlife.
cattails have take over diverse ecosystems.
44
plant; that is all that exists there. Sid I miss something? Do you have something else?
I wanted you to repeat that
and sawgrass marshes, where the cattail takes over; virtually nothing else is, no fish, no birds, nothing.
infestation at some point in the future. What this lawsuit is not about and what is very important to the analysis for the agricultural intervenors, it is not an attack on the federal flood control project.
here and try to aggregate a congressionally mandated flood control project. We are not tying to do away with their flood control. We are not trying to do away with their water quantity. They will get their water.
What we are attacking is the failure of the state agencies to regulate agriculture as to the water quality.
our complaint and to the relief that we have requested in order to analyze whether or not they have an interest in coming into this lawsuit.
45
their flood control or the fact that they would get water The relief we seek is clean water and if you look at our prayer for relief, it is a broad prayer that asks that they be, the state agency be mandated to enforce the applicable water quality standards.
promulgate new ones. We just say, "Enforce what you are presently are required to enforce."
contaminated water, not that stop delivering water. We are not shutting off the pumps. We need water. The cities of South Florida need water. Everyone needs water. The park needs water. We don’t need dirty water – that they be enjoined and restrained from operating stationary installations that violate the state law.
then they would have to address clean water; that they conform to the contracts, that abate the nuisance. What we ask for every single time, all we want is clean water.
that we are looking at this from a very naïve standpoint. We can over-complicate this or we can keep it right down the middle. They need to enforce their state law.
46
What the issues are in this case or if they aren’t confused they are masking them when they ague them.
shutting everything sown and that is not accurate. There is a feeling that we are going to come in and, in fact, it has been put in the briefs and that we would ask this court to Micro-manage this water system.
not at all what we are seeking. We are seeking that South Florida will do its job.
turn back the hands of time and have the Everglades as we once knew it. That’s also inaccurate, Your Honor. We only want to hold what we have.
asked for restoration of the damaged areas. We’ve just said "Stop. Stop it now. Don’t study it any further. Stop it. Go out and do it. You know what needs to be done.’
significant when I get into the various organizations for the farmers and the agricultural interests.
sugar cane cannot be grown in the EAA and save the Everglades; that it is not possible for these two systems to
47 exist within the same water system, that it is an impossibility.
are not mutually exclusive. If that is their position, if that is either the district, DER, or if agriculture were allowed in – if it is their position that they have an absolute right to destroy the Everglades, then if this lawsuit serves no other good than to bring that to the public’s attention that we have made in Florida a policy decision to incrementally destroy the Everglades, then the truth will have to come out, and that is exactly what we intend to do.
legally. I think we have a property interest that must be protected. Our lawsuit is premised on the belief that we can ask you legally to force them to carry our their regulation in a regulated community if they have to have to respond to that. That is not part of this lawsuit exactly how they will regulate that regulated community. simply that they will do it.
seeking to lower Lake Okeechobee nor to deny flood protection or water supply
are, there is something very disturbing about the three
48 groups who have come before us, and the disturbing element beyond the trade associations is that I believe all of us in this room know that there exists in the EAA big sugar, massive sugar corporations.
whether they are regulated, how much they are regulated and what form that regulation takes.
are what amount to, with all due respect to these family farms, mom and pot farms, we see trade associations where we are not quite sure where the big sugar people are; and we see Belle Glade.
into federal court and litigate legitimately in this type of litigation unless what they really represent is the "big sugar"?
are the sugar cane growers, Atlantic Sugar, Okelanta, Osceola, Duda, Thalisman’s – these people should come directly into Federal Court, Your Honor.
we are going to have to put up with the regulated community in this lawsuit, then they should be up front and here directly, not hiding behind the skirts of other entities.
49 at us with everything. How do we go back against them? We are going to have to start subpoenaing Duda, subpoenaing all their records.
are going to have to go to each of these regulated industries and start going into what their interests are.
there are conflicts of interest among the various farmers represented there. Vegetables use one type of fertilizer. It’s higher than the type I understand that sugar cane uses but sugar can is the vast acreage that is there.
fungicides that sometimes legally contain mercury. The interests are very divergent.
by a single law firm. Two attorneys spoke to you but they are the same law firm. Essentially one attorney is representing virtually all of these divergent interests of the regulated community.
have processors, they have shippers, they have packers. What is their property interest that is represented here? They are simply a representative for something else.
time we’ve been told how many members they have but we are
50 not told who the big boys in Florida Sugar Cane really are.
acreage? What is their interest here? Why don’t they come directly before us?
you had acreage, I believe, for sugar cane in 1950, and I will stand corrected by them if I am wrong, of about thirty thousand acres. In ’87, ’88, we had acreage of four hundred and twenty thousand acres in sugar.
pollution when it began, there is no comparison.
unlimited inducement into the future to produce more and more pollution into our systems? The individual farm I would maintain have no other interests than they are 00 they are regulated people within the community. I would maintain that none of these people have an interest to be represented here.
their interest here is in pollutable water which we haven’t attacked, storm water drainage which we haven’t attacked. sewage treatment which we haven’t attacked.
the law and that’s simply not a legitimate interest to come into court on. The relief that we seek would not flood
51 them, dry them up or cause necessarily land to be taken out of production. That’s a choice that has to be made internally as to how you are going to clean your water up.
up internally by use of some other method, that’s their business, not ours. We just want the clean water to come out
intervenors, they raise several interesting issues. They raise identical defenses to South Florida Water Management, except that they raise in their Third Amended Defense a Fifth Amendment taking claim.
claims within this lawsuit, all these different interests are taking claims.? They indicate in their Tenth Amended Defense that they have a pollution easement in the other lands, that they have an easement to pollute into he public lands and , I n fact, Mr. Earl alluded to that, that these public lands were developed for their benefit to send their pollution.
Defense that if their land were ever used to clean up their own pollution, then that would amount to a private property being used for an ecological easement. Are we going to litigate all these issues for all oft these individual
52 interests within this lawsuit?
to they call "run-off". They call it "irrigation return flow". They call it "storm water".
have legal significance under various regulatory schemes and they entitle them under certain schemes to exemptions. We call it "dirty water? That is destroying the Everglades.
pollution of you read through their documents. Their basic positions are, done, they don’t do it. Two, they dodo it; and three, they only do it a little. Where do they stand?
among any of us, among the defendants, the proposed intervenors or the Government. Under intervention of right They can see that they have no statutory right of intervention here. They have to have a direct, substantial and legally interest.
their pleading and our pleadings on this point, is a flexible one. You can use a practical rather than a technical yardstick.
and the circumstances. You look at those four elements and you will decide what you think has to be done here. Their
53 adequate interest simply does not exist. They are part of a regulated community. They can settle their regulation with the regulated entities in the future when you decide that we, in fact, have proven our case to you that they have obligations that they are not fulfilling and they need to fulfill them.
they are required – they are required to show all of these elements, not just one; the possible impairment they can litigate at other times, their various taking – I think it is very clear that you are to going to be able to litigate all those various taking issues if they were to pile in to the middle of this lawsuit. It simply could not occur.
were an abuse of discretion, they can go to their administrative process under state law.
is more than apparent, Your Honor, from the pleadings in this case that the District is extremely capable of representing their interests and, in fact, takes the position that there is no factual or legal basis for this lawsuit.
where you have a state agency or governmental body that they are adequate to represent the interests of the public. That
54 Is even more so in the case of a municipality like Belle Glade.
municipalities. The United States has cited Higginson where a sub-state intervened in federal court, and they said that it is much more stringent for them where they are a citizen of the state and they come in and there s already a state agency. They simply have a compelling reason that they must show and no compelling reason is shown here.
the proposition that where a municipality is represented by a state agency, they have an incredible burden to overcome that there is inadequate representation.
standards will affect agriculture but that does not give them an interest to come in here o litigate in the middle of our lawsuit. An interest is a prerequisite; It is not a determining factor in coming in.
as the rest of Florida. The need water. They need fl 0od supply, and if they produce a pollutant or contaminate, they are subject to water quality regulation.
perceived by the Florida legislature. The cases on intervention support denial here, if you go trough them;
55 Your Honor. I will briefly allude to them, Athens Lumber – well, first, I think I would like to go back to the Chiles case which you have so heard so much about this morning. It is a very recent case.
don’t need standing to have intervention. As Mr. Earl accurately said, the very next sentence says, he uses standing cases to determine what the interest is that is necessary for intervention. I would respectfully submit that the Eleventh Circuit has not thrown out the law of intervention.
have sort of cleaned up they believe this idea of the standing being a separate analysis, and they have put them together, but you still have a heavy burden to come in on intervention. That is not changed.
this court will use a practical yardstick rather than a technical one, and they have not diminished the requirement of adequacy of representation.
suggested before, you could just at any time say, "Well, there won’t be adequate representation. We have a different interest. Hey, we have a right to come in."
56 They kept the homeowners association out of that lawsuit. They allowed the individual people at Krome to come in but not the homeowners. They said you don’t have an interest.
were denied. In Manisota-88 we would represent that that is the identical situation. Environmental groups sued EPA and said, "Your are not doing your job, vis-a -vis the regulator. You must do your job."
court said, no. The regulated entities are trying to come in here, and we would submit they have no place.
station owners who weren’t allowed to come in. Environmentalists were suing under the Clean Air Act and they said, "No, you are represented. You are all right."
come in under desegregation cases and the court said, "No, you don’t have an interest that has to come into this particular lawsuit."
great reliance on, I believe most of them can be distinguished with the exception of Hodel and the truth is that Hodel just goes the other way, as you will find in some cases in which these situations happen.
57 not initiating any new rules here, Your Honor. Under Reserve Mining there was a statutory mandate to consider the economic interest. Under NRDC versus the Nuclear Regulatory Community they said that the parties would be bound.
bound here. This is in regard to intervention of right. Intervention by permissive intervention is a separate issue that goes to this court’s discretion and you have to look to the prejudice to both of the parties, the prejudice to the defendants, the district – it is argued that they will be prejudiced by multiple lawsuits.
because, frankly, we are going to have every issue underlined ten times by these various intervenors. We’ll be briefing everything fourteen times. These are the briefs Your Honor, on the agricultural intervention alone. That’s only the beginning.
if these people come in. That is a prejudice to the United States in delaying this case and dragging it out. They want to introduce new issues of water quantity, farming methods, economic fortunes. They have no place in this particular lawsuit.
straight as possible, and that’s what we would ask you to
58 do. Do you have any questions, You Honor?
would like to respond briefly to what you have said and I may may have some questions of them. If I have any questions of you, I will ask you to respond.
the cases that plaintiff cited in respect to permissible intervention, requiring a compelling interest to intervene, the Eleventh Circuit cases, the Chile case clearly sets forth that the burden is minimal in those cases, and that didn’t exclude municipalities.
to suggest what the interests is required under Rule 24.
Miller here and it says: "in cases challenging various statutory schemes as unconstitutional or as improperly interpreted and applied," and I suggest that they are challenging the statutory scheme as improperly applied.
that I wanted to get to because if I understand this case correctly, it is fairly simple in its statement, complex I am sure in its determination, but the Federal Government is saying to the State Agency, "Look, we have a deal and we’ve
59 got some property that is at interest here.
Reserve and they are being messed up and they are being messed up because the state isn’t enforcing its laws and its regulations, period."
These are not new laws, I presume. These are not new regulations. They are just there.
and I will give Mr. Earl a chance to respond too, but as we filter these, as I filter these responses on the Motion to Intervene, what I think I am hearing is this: A very important industry is at risk.
and increasing doing business in a certain way. Yes, it may violate the laws of Florida abut we’ve been doing it for years, and what we want to have an opportunity to say is that these regulations are wrong and we want you in this litigation to do something about that. We want the regulations changed, if, indeed, we are violating them because we have a major economic interest.
interest in keeping this agricultural business alive and certainly I can sympathize with tat, but what I am hearing is not so much that want to be in here to make sure that
these parties do the right thing about the simple question of whether or not the laws are being violated, because that is – the State can handle that quite adequately as can the Government in presenting its position, and the state can present its position.
violated or they are not. They will be a lot of expert testimony on it. I don’t know that we need the City of Belle Glade or the various associations or the various owners to come in and help determine the question of whether or not the existing laws are being violated.
tell me that if they are being violated they ought to be changed; they are unconstitutional or they are wrong or there is a taking of property. I have heard the fifth Amendment mentioned.
impacted will be the taking of property without due process of law. That’s not what I understand we are here about. That’s a completely separate, new issue and I didn’t anticipate from this lawsuit that we were going to even get into questions of constitutional taking.
the affected owners if the law is not being enforced and is enforced, and if that enforcement impacts on those owners.
61
or Federal Court, as they see fit, and they can say, "Look, the State is complying with its relating to pollution, but that compliance required of us is going to put us out of business, and this State has such a significant interest in not putting us out of business that the law ought to be either changed by the legislature or it ought to be declared unconstitutional as a taking."
to let Mr. Earl address that analysis because that goes more to the agricultural aspects of tit.
Chiles court cited.
instances where the plaintiff is challenging a statutory scheme as improperly applied, which is precisely what this plaintiff is doing, the courts have recognized that the interests of those who are governed by those schemes are sufficient to support intervention.
intervene, in addition to the compelling other interests which we stated – this is nothing more than an attempt to move and administrative forum into this court and we want to
62 Participate in that administrative forum.
short and I appreciate the opportunity to address your crystallizations of your perception here, Judge.
to be in this suit. It is not a simple as the court perceives it. They talk about dirty water, clean water.
have attempts to change and use this lawsuit as a mechanism to change regulations. Agriculture, I want to make it very clear and we will prove we need to be in this lawsuit to do it – you have heard the attacks on us.
Magistrate’s hearing about herbicides, pesticides. It’s about agricultural practices and there are some real issues, Judge, where these contaminates are coming from.
run-off to the east, which also provides input into this area? Is it other industrial sources?
practices, not only to continue them but to defend its practices before this court.
the simplest thing. We just want the State to follow the
63 law. It is not that simple, Your Honor. They are asking to abate the operation of some structures that ship water down there.
does it is a whole other question that has to addressed. We have to determine if that water is, in fact, contaminated.
alluded to, the issue is not mercury. It’s nutrients, things that everything needs to grow, and the whole, the basis of their case is that there is too much phosphorous which most of it comes from the north, of Lake Okeechobee, too much nutrient and, therefore, instead of having all sawgrass, we are now starting to grow more cattails.
about poisoning and clear violations of law. We are breaking new ground here and this industry, which is so vital, needs to be a part of that.
agencies don’t know about the application of herbicides and pesticides, what you use, historically what happens, how the water flow what you need to get water off, vegetables and sugar cane.
particular, is asking you to proceed into a profoundly
64 significant lawsuit for South Florida, all of us in South Florida, and they are asking you to look at one side of the spectrum.
left side of the spectrum, and the United States some place to the right of that, and the agencies, but keep out any information or specialized knowledge from the private sector whatsoever and particularly from agriculture, the people who live out there, my clients, Your Honor.
children are out there. They know about that environment.
that are affected if, in fact, we have poisons. What we have is some excess nutrients; out there, and this suit is about turning that into a cause, Your Honor.
that you don’t proceed into this suit blinded to the private sector and the special knowledge of agriculture, and I thank you very much.
case and how complex it has become, if I accept what the Government has said as its main position, I could probably | ||||