Hearing Transcripts from United States v. SFWMD, et al.,

Case No. 88-1886-CIV-HOEVELER

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

Plaintiffs,

vs.

SOUTH FLORIDA WATER
MANAGEMENT DISTRICT,
et al.,

Defendants.

__________________________________________

Case No
88-1886-CIV-WMH

TRANSCRIPT OF HEARING
BEFORE THE HONORABLE WILLIAM M. HOEVELER,
UNITED STATES DISTRICT JUDGE

APPEARANCES:

Robert G. Gough, Esq.
Attorney-At-Law

Suzan Hill Ponzoli, Esq.
Attorney-At-Law

Rick Burgess, Esq.
Attorney-At-Law

Robert Dreher, Esq.
Attorney-At-Law

Jim Rogers, Esq.
Attorney-At-Law

Steven Herman, Esq.
Attorney-At-Law

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THE COURT: All right, Ms. Ponzoli, would you like

to open the matter?

MS. PONZOLI: Your Honor, I believe DER was the

moving party for this, so I will let them begin, if that's

all right.

THE COURT: Fine.

MR. GOUGH: Your Honor, Robert Gough, for the

Department of Environmental Regulation.

THE COURT: All right, the state?

MR. GOUGH: The state, that's right.

THE COURT: All right.

MR. GOUGH: We had filed a motion for, asking the

Court to stay proceedings and continue the trial date for a

period of six months, and subsequent to that motion the

Governor and the Secretary of the Department and Attorney

General, Assistant Attorney General Stewart for Justice in

Washington and other high level officials, pursued the

initiative that the Governor started in the summit

conference on February 8th in West Palm Beach, and as a

result of those ongoing discussions today at noon a press

conference was held and the Governor and Attorney General

Stewart and United States Attorney Lehtinen announced that

all the parties in the case had reached a consensus that the

best thing to do at this point would be to stay all legal

proceedings in the case for a period of sixty days, push

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back all scheduled motion hearings, stay all discovery and

reset the trial dates and the pretrial scheduling

conferences and the like, all for, just move them all back

sixty days to give the parties a chance to proceed in that

period in the light of the agreement that they reached today

and announced today. And I am not sure how much detail you

wanted go into that, but

THE COURT: It's not necessary if everybody

agrees.

MR. GOUGH: It's my understanding that all the

parties are in agreement with that procedure. So I will

turn it over to Ms. Ponzoli, if she wants to comment on

that.

THE COURT: All right, thank you, sir.

MS. PONZOLI: We are in agreement, Your Honor. We

would like to try to do this in a nonconfrontational way for

a period of sixty days and moving all deadlines back that

same period.

THE COURT: Including the trial date?

MS. PONZOLI: Yes, sir. There are approximately a

hundred depositions presently requested or in place that

need to be done and we have four months until the cutoff of

discovery. I think the federal government has a concern

that we are on a moving discovery schedule presently and

that we should build in maybe a sixty day period there for

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that discovery because you won't come up to speed, if we can

not reach accord and settlement in these sixty days and we

have to come back to a confrontational position, you don't

immediately begin rescheduling experts from around the

world.

THE COURT: Yes, of course.

MS. PONZOLI: So I think that an additional sixty

days within the discovery time would give a little breathing

room there. Otherwise, it's going to be horrendous.

THE COURT: Sure. Is there anybody present who

disagrees with that? Is that all you wish of me?

MS. PONZOLI: That's all we wish, is that you

would push all dates forward with that additional period,

and that I think the United States has two briefs that would

be filed today. We would ask that they be filed at the end

of the sixty days, if there's no agreement, as opposed to

today. We are prepared to file them today if that is your

wish.

THE COURT: The case is set for September 24th, is

it?

A VOICE: 23rd.

MS. PONZOLI: Beginning of September.

THE COURT: Beginning of September?

MS. PONZOLI: Yes, sir.

THE COURT: So we'll make it then, we'll make it

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the beginning to mid November.

MS. PONZOLI: That would not allow that extra

sixty days, though, Your Honor. That would just be on a

straight four months schedule if that's your wish.

THE COURT: Well, why do you say it wouldn't give

you the sixty days? I moved the trial date sixty days.

7 MS. PONZOLI: Then I didn't make myself clear. We

have four months of discovery left to do. If we started

today to July 1 it's four months. What I am saying is that

when we come out of a sixty day stay four months will no

longer yield four months of depositions. There's going to

be a startup period until you reschedule those depositions.

THE COURT: I thought what you said was you wanted

everything moved ahead sixty days.

MS. PONZOLI: The deadline sixty days, but I think

we'll need an additional sixty days within the four months.

We'll need six months of depositions to get startup time.

THE COURT: Six months of depositions?

MS. PONZOLI: We have a hundred depositions, Your

Honor, and they're going to be falling across the summer.

THE COURT: So the sixty days from today would

take us into April and you need four months of depositions

after that, if you are unable to, so that takes us almost to

September, and then you need how much time before trial?

MS. PONZOLI: Well, the parties all agreed they

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needed a cutoff of two months between discovery and the

trial. So if we stuck simply to the four months of

depositions, that takes us to September for discovery and

November for trial. If we add the additional sixty days I'm

asking you for the startup time because of stopping, I think

you would stop discovery in November and I guess trial would

have to be set for February, if I have done my months right.

THE COURT: What you want then is a year.

MS. PONZOLI: No, sir.

THE COURT: Well, this is February.

MS. PONZOLI: Well, you are right.

THE COURT: You want to try the case in February?

MS. PONZOLI: Yes, sir.

MR. GOUGH: Well, Your Honor, this is new to the

department. At least it's new to me. Offhand, I wouldn't

have any objection to pushing it back that far. We

originally asked for six months, so that would be even

closer in line to what we had originally requested. But as

to the filing of the briefs that Ms. Ponzoli mentioned, I

believe she's referring to oppositions to the department's

motion for summary judgment on the counterclaim and to the

Water Management District's motion for partial summary

judgment on its counterclaim.

They were due pursuant to agreed upon extensions

today. If that gets an additional sixty days then they have

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a very long period of time in order to research and prepare

their oppositions to our motions, and I think if they are

done, and apparently, if I understand Ms. Ponzoli, they are

ready, are completed and ready to file, then I see that, I

think it would be fairer to just have them go ahead and file

those oppositions.

MR. HERMAN: Your Honor, Steven Herman. I am from

the Department of Justice in Washington.

THE COURT: Yes, sir. Maybe you could come a

little closer to the phone so the counsel on the phone can

hear you.

MR. HERMAN: Sure. And it was our belief and our

position when we discussed the matters with Mr. Thompson,

who, the General Counsel of the Department of Environmental

Regulation, that the chances for settlement might be

enhanced if we did not file these briefs at this time, and

that was the --

MR. GOUGH: I wasn't privy to that conversation.

I will accept your representation and I will withdraw my --

MR. HERMAN: Thank you.

THE COURT: All right. Let me ask counsel on the

telephone, how do you feel about this continuation and the

extent of it?

MR. ROGERS: Your Honor, Jim Rogers here. We

really have no objection to the continuation of discovery.

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We are a little surprised that we are now talking about I

guess January or February. We thought it was just going to

be a pure sixty day move-out of all deadlines. I'm not sure

we have any objection to it. And if everyone else will go

along with it I guess we would too.

I think the one thing we would want incorporated

in any understanding is that, if we go back to litigation,

we argue these motions that were scheduled for Tuesday

fairly early on in the reactivation period. We view that as

very important. For example, we are unable to get any corps

of engineer witnesses until we had this resolution of this

governmental privilege argument by the government.

I am not sure we care about getting briefs today

as opposed to the end of the period. I think we can live

with getting them at the end of the sixty day perfect. But

we would like to argue those motions fairly early on if we

go back to the adversarial process here.

THE COURT: All right.

MR. DREHER: Judge, Bob Dreher, for the

conservation intervenors. We are happy to support the

suggestion that the parties talk at this time. So the

request for the stay for sixty days seems appropriate to us

and we don't have any opposition to providing some startup

period for discovery, for extending the discovery period as

Ms. Ponzoli asked.

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THE COURT: Any other comments? All right, I will

continue the case. I will continue the deadlines. You may

keep your briefs until we reach the end of the sixty day

period. I want to examine my calendar before I reset it.

But I will reset it not before December. All right?

MS. PONZOLI: Yes, sir.

THE COURT: And then it will be somewhere between

December and sometime in February.

MR. ROGERS: Your Honor, I noticed in your last

order I think you set two weeks for trial. And I just would

like to say that as we spend, you know, five, six days per

expert on these depositions, it seems to me wishful thinking

to really think we can get this over with in anywhere near

that time.

THE COURT: No. I had no idea that it would take

two weeks.

MR. ROGERS: Okay.

THE COURT: We have two week trial calendars and

it probably said beginning a two week period at such and

such a date. No, I anticipate that this will take a little

longer.

MR. ROGERS: All right. Thank you, Judge.

THE COURT: All right, thank you. Is there

anything further that we need to talk about? Thank you.

We're going to end the hearing then. Thank you, gentlemen.

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MR. ROGERS: Thank you, Your Honor.

THE COURT: Okay, folks, thank you.

(Hearing concluded at 4 o'clock, p.m.)

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REPORTER'S CERTIFICATE

I, Roger W. Watford, official Court Reporter of

the United States District Court for the Southern District

of Florida, do hereby certify that the foregoing 10 pages

contain a true and correct transcript of proceedings had

before the said Court held in the City of Miami, Florida, in

the matter therein stated. In testimony whereof, I hereunto

set my hand on this 25th day of March, 1991.

_____________________
Roger W. Watford
Official Court Reporter