APPEARANCES:
SUZAN HILL PONZOLI, ESQ.
Assistant U.S. Attorney
For the Plaintiff
Miami, Florida
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KEITH E. SAXE
U.S. Department of Justice
General Litigation Section
P.O. Box 663
Washington, D.C.
PEEPLES, EARL & BLANK, P.A.
One Biscayne Tower
Miami, Florida
BY: WILLIAM L. EARL, ESQ.
RICK J. BURGESS, ESQ
For the Agricultural Intervenors
POPHAM, HAIK, SCHNOBRICH & KAUFMAN, LTD.
4100 One Centrust Financial Center
100 SE Second Street
Miami, Florida
BY: R. BENJAMINE REID, ESQ.
ROBERT BLANK, ESQ.
257 Southeast Avenue E
Belle Glade, Florida
CARLTON, FIELDS, WARD, EMMANUEL, SMITH, & CUTLER
One Clear Lake Center
250 Australian Avenue, S
West Palm Beach, Florida
ROBERT DREHER, ESQ.
Sierra Club Legal Defense Fund
1531 P Street, N.W.
Washington, D.C.
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THE COURT: Good morning. Have a seat, please.
All right, folks. I've got about 45 minutes to conduct this
status conference. So, Ms. Ponzoli, we will proceed. Tf
you would.
MS. PONZOLI: I want to thank the Court for
granting the status conference to reconsider or clarify the
discovery orders of January the 23rd and the 24th, Your
Honor.
On the 23rd, you referred entry over to Judge
Bandstra, I think implicitly implying the Court found that
they had a right to entry, and on the 24th, you indicated
they had a right to scientific and technical data, without
prejudice, to establish the relevance of other documents
underlying the settlement agreement.
I think the Court should be aware, at the outset,
that all of the scientific and technical documents have been
turned over, save for my priviledge list and for the
iterations of the actual drafts of the settlement agreement
itself, which your order implied you were not ordering to be
turned over, but they could argue that they were entitled to
it.
Your order also recognized that discovery is fully
available in the state administrative process. That is
completely my understanding of Florida law. And that,
otherwise, all discovery would be sent to the state
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administrative process.
I think that the United States has a very serious
problem with the order, and it seems to grant one way
discovery, Your Honor.
They have discovery against the United States. The
United States is now sent to the state administrative
process, if it wishes discovery. This is prejudicial.
THE COURT: You want some discovery before then?
MS. PONZOLI: Sir?
THE COURT: Do you want some discovery before then?
MS. PONZOLI: Well, I think it is pretty, pretty
straightforward what our position is. We want discovery
ended.
We want this litigation in federal court ended. As
fond as we are of you, we would like to see you on like an
annual basis, or something as opoosed to more often.
THE COURT: I am entirely in favor of that.
MS. PONZOLI: I understand, if, however, this Court
believes that there are some surviving legal rights to
discovery, than we very firmly believe they must be
reciprocal; reciprocal entry, reciprocal exchange of
scientific and technical documents.
There are documents that are long, long overdue, as
I would like to explain to the Court, from Belle Glade and
Clewiston, and I think equitably from the farm interests who
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are essentially the same entities.
If the Court believes that there should be
continuing discovery in this federal lawsuit, then we would
seek that you would put outer parameters on it, and that you
would clarify that nothing in your order should impede or
slow the state administrative process.
I think that the Court granted these two forms of
discovery for a couple of reasons, and I would like to
discuss those reasons because I think those requests for
discovery come up in large hearings with many, many issues,
and in a certain sense they came up in discovery vaccums.
So, I think that the Court did it because it seemed
fair, and the United States said, while we never agreed --
if you go back and check the record, we never agreed they
had a legal right to entry. We have always said there is a
fairness issue here. A fairness to their coming in.
I have represented, in my pleadings, that
approximately 8 months ago I offered them entry into the
damaged areas on reasonable terms, and we could fight about
the rest of it. They want it their way or no way, and so we
sit today. They have not come in.
We are working with the farm interests, We met on
March the 3rd, and we agreed that the single narrow issue
that we would place before you today is the legal right to
entry.
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The scope of it, if the Court finds that there is a
legal right to entry, the scope would be defined by Judge
Bandstra. So we are not going to ask you to deal with all
of the specifics of an entry.
There have been massive appeals to this court to
get what was asked for, and I guess, as I presented to this
court I gave them, before you ordered me to, I volunteered
to give them the science and the technical documents,
because I couldn't pick up a newspaper with reading how they
had not had our science.
They have had all of our science, but I believe
they have no legal right to any further discovery.
There are, in my opinion, no presently pending
issues.
Now, they may have the ability to change that. I
was handed, as I walked into court, a motion to amend their
NEPA claim. So I guess we are going to create issues so we
can go on fighting in federal court forever.
I was served yesterday 3, 30 (b)6 in this lawsuit,
Your Honor, 3, 30(b) 6 subpoena duces tecums for depositions
to 3 of my federal agencies; the National Park Service, the
Loxahatchee National Wildlife Refuge and to the Army Corp of
Engineers; massive requests for documents on all issues
relating to impacts on the human environment and other harm
or harm to the environment regarding the STA's, Paragraph 10
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and C of the settlement agreement and other requirements and
commitments of the settlement agreement entered into by the
United States. Massive requests.
Every document under the sun is defined, if you
read the 7 pages of the instructions.
One of the interesting points about these 30(b) 6,
subpena duces tecums notices, that is, a point that I need
to discuss with the Court regarding the whole discovery
history in this case is, is that the notice is put forward
by the Farm interests; by both the Florida Sugar Cane League
and the Western Palm Beach County Farm Bureau, the Roth
Farms and the the K.W.B. Farms.
When you read the instructions, it is clear that
the cities of Belle Glade and Clewiston intend to enforce
some of the provisions of it, and then the notice is signed
by the Florida Sugar Cane lawyers.
There is a merger of identity of all of those
defendant intervenors in those 30(b) 6 notices. It seems
that we are going to go on and on and on in federal court,
when all we ever heard that it all belonged in the state
process.
I believe that in this federal litigation, Your
Honor, unless we create issues, there really are no issues
to do discovery here.
There are undefined issues in that state
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administrative process. It may never even be an issue that,
in fact, there is damage to the Park, but there may be, and
if it is, then they would have a right.
I will still have an equitable duty to work that
out with them. And as I have said, we have tried.
The history in this case of discovery, if we go
back to the very beginning, I don't think anyone in this
room will forget that I stood in a similar position, and I
told the Court that Belle Glade and Clewiston would come
into this litigation as surrogates for the sugar industry,
and I made a spectacularly unsuccessful argument, when I
said that they were smaller than the University of Florida,
and how could they afford this massive litigation; that it
was fairly clear what they were.
But we know now that all of their litigation has
been funded by the Florida Sugar Cane League. All of it. 6
hundred thousand dollars is what is reported to have been
spent for Belle Glade and Clewiston to litigate in this
lawsuit.
And their experts, Judge Hoeveler, Paul Larson and
Dr. John Davis, are the same experts that the Florida Sugar
Cane League has.
You have had attorneys appearing at one time for
Belle Glade and Clewiston, another time for the Florida
Sugar Cane League, and back again for the cities of Belle
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Glade and Clewiston.
So I think my real point is, is that the Farm
Interests, the Florida Sugar Cane League, have, in fact,
litigated this lawsuit from the very beginning under the
cover of Belle Glade and Clewiston.
I have, in the 3 and a half years of this lawsuit,
made available to Belle Glade and Clewiston and the, FOIA
requests of the Florida Sugar Cane League in excess of a
million documents for their inspection.
I have given them copies of at least a quarter of a
million documents. I have provided the documents of 50
years of structuring, engineering and historical documents
of the Corp; 15 years of the Park and 40 years at the
Refuge.
I have given them 12 thousand copies of documents
on the settlement agreement. I've given them the documents
from 20 of my expert witnesses.
I have had them at the depositions of 8 of my
expert witnesses. These depositions have gone on 3 to 4
days to multiple weeks.
The Farm Interests claimed that we have stopped
discovery that we have stonewalled discovery. I just think
that it is very, very clear that nothing is further from the
truth.
They have gotten the discovery all along. They
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have gotten everything but this entry issue, my privilege
list on the settlement agreement and the iterations, the
attorneys' drafts of that main document of the settlement
agreement. We have received in return, Your Honor, nothing.
I mean, nothing.
When Paul Larson and John Davis were designated as
expert witnesses for the cities of Belle Glade and
Clewiston, they were designated in a timely fashion and, of
course, the Farm Interests were not in this litigation,
theoretically.
They were off in the Eleventh Circuit. We could
never obtain documents.
There are multiple orders from Judge Bandstra
ordering that all parties turn over their science, their
data, their scientific documents. I can read them to the
Court, but I have attached them to my pleadings.
THE COURT: You haven't gotten anything?
MS. PONZOLI: Sir? No, sir. Nothing, I never got
anything. I moved to strike their witnesses. I moved to
compel.
I moved to strike their witnesses because they
never gave us the documents. And to this day, I do not have
the documents.
The sham of this, Your Honor, is at the very same
time they were telling us they had no documents, they were
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appearing at a state Everglades summit, and other Florida
Sugar Cane lawyers were citing Mr. Larson's data in the
water conservation areas as to the aerial extent of
cattails.
He had data. At the same time he told me he had no
data, he had data. The letter from Mr. Burgess of February
the 4th says that they are unable to produce expert witness
documents at this time.
4 days later, Mr. Parsons appeared at that summit
and discussed Mr. Larson's data. Excuse me. I am getting
ahead of myself.
On the Sage Committee, at the South Florida
Management District, they have their scientific advisory
group for the Everglades to advise the District.
All the scientists came together and talk about
Everglades restoration. Mr. Larson sits on that committee
for the Phonhue family, one of the dominant owners in the
EAA; one of the dominant owners of the Sugar Cane League.
Dr. Davis sits on that committee on behalf of
United States Sugar Corporation, and he advises on behalf of
United States Sugar Corporation.
Dr. Davis has said in those meetings he has 3 years
of data. Mr. Larson says he has two years of data. These
are the same people for whom the same lawyers said there was
no data.
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I have asked directly their attorneys why there was
no data for Belle Glade and Clewiston, but there, obviously,
is data for the Florida Sugar Cane League, and it has been
explained to me that they had Chinese Walls in their work.
The lawyers had Chinese Walls. The expert had
Chinese Walls, and everyone could keep everything nently
separated, even though it was all funded by the Florida
Sugar Cane League.
Dr. Davis and Mr. Larson have filed affidavits in
this court that go to all the issues of this litigation.
Dr. Davis filed an affidavit. It is docket entry 710 on
1-7-91 where he goes into the capacity of the Everglades
Marsh to simulate phosphorus and his opinions on what was
being offered in Doctor Jones' deposition.
The value of using alkaline phosphortate activity
as an indicator of ecological health, and that phosphorus
alone, whether it causes or doesn't cause microlight
changes.
Dr. Davis has addressed all the issues of this
litigation. Paul Larson, in docket entry 709 and docket
entry 747, has filed two affidavits in this litigation,
where he, also, has addressed all the issues that appear in
this litigation, but we have never received any data, any
scientific information from either of these two experts who
are, obviously, shared by both of these entities.
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I have taken a consistent position on behalf of the
United States since the state and the Federal Government
signed that settlement agreement. I saw it. No discovery
directly from the Farm Interests.
I said, "this litigation is over. We are going to
the state administrative process."
I did not stay discovery. I gave them what they
asked for. I gave them, except for the entry -- I didn't
give them the entry. They have got me there.
I answered two requests for productions. I
answered 141, or I responded to 141 interrogatories. I
filed 75 pages of responses. The United States answered 188
requests for admissions. 45 pages of answers we gave them.
They have all the science underlying the settlement
agreement. We have from them nothing.
Before I conclude, I would like to address a couple
of the filings that came in yesterday from them.
One was their renewed 10(i) filing where they go
into their modified requests for entry. There is some
movement, Your Honor. I will not be dishonest.
There was movement on the March the 3rd on that
issue, but the real killer appears to be the 3 to 4 days a
month with helicopters for 15 months. I guess we really
should put that aside.
On their status report, on discovery, they have
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correctly identified -- I am asking you to reconsider or to
clarify your order. There is no question that that's the
Federal Government's right, if it feels an order is somehow
unfair or in some way is not appropriate.
I have a right to ask you to do that, and it is
true. I am asking you that. They do not deny in that
status reply that they have emerged, that they have merged
the identities of their attorneys.
They do not deny that they have merged the identity
of their expert witnesses. They do not deny that I have
provided all the documents that I laid out in my status
report on discovery.
They don't deny that they have not provided me with
anything. They provide no explanation, other than I never
asked the Farm Interests for discovery.
They do not deny that I requested the cites of
Belle Glade and Clewiston for Mr. Larson's and Dr. Davis,
and that I moved to strike their witnesses because they
never provided them.
What they assert is that they have a right to more,
They indicate that they kept the cities of Belle Glade and
Clewiston well within the confines of their limited
intervention and, in fact, they give examples of how they
did not ask all the questions they wanted to in the various
depositions.
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I could provide this court with multiple times when
the United States in those depositions said, "ask all your
questions. Ask them now. We are not doing these
depositions two times. We will object to Belle Glade and
Clewiston's right to ask them because at the time of trial,
we are not going to let you litigate all these issues,
because we believe you have a limited intervention. If you
have questions, you ask those questions now."
They have attacked the United States one final
time, and I think rather dangerously on our secret
negotiations.
I think this court should know whatever one else in
this courtroom knows, that they have been secretly
negotiating with the state for two months, and that they
request, as a condition of those secret negotiations, that
the 3 legs of the Everglades restoration be put on hold
during their negotiations.
THE COURT: Who has been negotiating with whom?
MS. PONZOLI: The Farm Interests, the Florida Sugar
Cane League specifically, has been negotiating with DER and
the South Florida Management District.
They have asked that the Phase 2 BMP Rule be played
on hold; that the final adoption of the SWIM Plan be placed
on hold, and that no Everglades permits be -- that there be
no Everglades permits issued.
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I think it is very clear that they are not
interested in the state process.
THE COURT: Isn't that going to interrupt the
administrative process, if it should take place?
MS. PONZOLI: Yes, sir. It certainly will. We
certainly object to it.
THE COURT: You will be right back in court then
rather quickly.
MS. PONZOLI: I think so, yes, sir.
THE COURT: If that should come to pass.
MS. PONZOLI: If that should come to pass.
We have sat in on the first of several meetings on
this. We have made it clear we will tolerate no slowing
down of the state administrative process. It just cannot
be.
I mean, the settlement agreement means nothing if
it is just gutted by we will go out and renegotiate
everything.
They say that we have a distinct advantage because
we've been in the Park and Refuge all this time. I think
the reverse is true. I think they have a distinct advantage
because they have all the science. We have ours. We have
none of theirs.
They have asked this court on page 12 of their
recently filed answer, "the Farm Interests urge this court
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to take all action necessary to insure that the Court
ordered comprehensive scheme to restore the Everglades
proceed upon the best scientific and technical information
available from all sources."
If that's so, then they should give us theirs. I
ask the Court who is stonewalling science in this case.
The relief I seek is that you stop, Judge Hoeveler,
this abuse that's going on of that process. I believe that
there should be no further discovery in this case. The
federal litigation should be ended.
The settlement agreement should be given a chance
to work in the state administrative process. As I said
before, though, if this court believes that there should be
legal rights to more discovery, then it is only fair that it
be reciprocal, reciprocal entry, reciprocal exchange of
scientific and technical documents and privilege list, and I
would ask the Court to please assure us that it will not
hold up the state administrative process.
Thank you.
THE COURT: Thank You. Who would like to speak
next? Mr. Earl.
MR. EARL: Thank you, sir. Your Honor, I am Bill
Earl representing the Florida Sugar Cane League.
As you know, Mr. Bob Smith, representing some of
the other Farm Interests, is unavailable and is out of the
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country.
THE COURT: Right.
MR. EARL: Mr. Burgess will address the specifics
of Ms. Ponzoli's discussions on discovery on behalf of the
League. Mr. Blank will address any questions the Court may
have in terms of the cities' interest;.
I would like, if I could, Your Honor, to take just
a few minutes first and advise the Court of some preliminary
matters that goes to discovery in this action, and the
reasons for those actions.
As Ms. Ponzoli indicated, we he have filed several
things, and I want the Court to understand the reasons for
those, if I may.
We have 3 counterclaims, as the Court will probably
recall. One was due process using the federal courts in the
settlement process would deny us with the minimal due
process and the state administrative process.
We've taken a voluntary dismissal of that, Judge
Hoeveler, because obviously, and we thank you -- you have
insured that the state administrative process will go
forward in fact and have insulated that from your findings.
The second counterclaim dealt with the Army Corp of
Engineers and their structures. As you probably know, they
own those big structures and operate them going into the
Everglades National Park and into the water conservation
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areas.
We piggy-backed on what the state had filed and
said, if there is jurisdiction and violations here, the Corp
also has to comply.
They have now filed a permit application. We are
in the process of reviewing it. We have taken a voluntary
dismissal of that count, Judge Hoeveler. We are reviewing
it.
We think the state may be trying to apply a
different standard for the court, the federal structure than
they are the state structures.
If that is the case, we believe that would
constitute a violation of state law, and we will make an
appropriate determination, but we've taken a voluntary
dismissal.
Count 3, Your Honor, dealt primarily with NEPA and
also some flood control counts. We have requested and we
have filed a motion to amend that count, judge, in light of
the statements made and the consent decree to which we are
not parties.
There was no ruling on our counterclaim per se in
there, and I might add, judge, the NEPA counterclaim has not
been amended before. So we view that, as a matter of right,
to amend that. However, we come before you because of the
circumstances of this case and ask to amend it.
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We do 3 things, judge. As a result of your ruling,
which is that we allege no harm or possible harm to the
environment as a result of the settlement agreement, and I
use, by way of example, not by way of limitation, the storm
water treatment areas.
We take that to be the law of the case. We
respectfully do not agree that NEPA requires any adverse
impacts, but we have amended to allege that there are
adverse impacts, such as loss of substantial amounts of
water, because they are spreading water out over those areas
and losing water. Less water available to the farm areas.
Less water available to South Florida, etc.
Secondly, Your Honor, factually, we believe your
order could be construed at a subsequent date, by an
Appellate Court or others, to be a finding that there is no
adverse impacts caused by, for example, the construction of
36 thousand acres of STA's, and that they are entirely
beneficial.
So we are amending, also, Your Honor, to give us
the opportunity to take some discovery and offer evidence
where there has been no evidence presented on that issue.
THE COURT: I really haven't endorsed anything in
the order. I certainly didn't intend to, that's being left
to the state.
MR. EARL: We believe, judge, that out of an
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abundance of caution, given the stakes and the impacts on
the agricultural community of this case, that a NEPA
analysis should be done.
I would urge and suggest to you that we are not
seeking for delay. One of the other things we would like,
judge, there to our amendments, would be for you to order
these agencies to designate a lead agency; perhaps the Corp
of Engineers, which does most of IS'S ib this area, to get
them going; get a time table, so while the state process is
going forward, there are some specific time tables.
So we really want two opportunities. The
opportunity to show you, and there are credible scientists,
even people in the Federal Government, and in the state
government, who believe these STA's are not an Everglades
restoration system; that they are going to do more damage
than good.
We need we haven't had the opportunity to discover,
much less present to you those facts.
We felt compelled, because of the importance of
this, to make that amendment.
The other thing, Your Honor, is alternatives. No
alternatives, unless -- we haven't seen them -- have been
evaluated. Apparently there are indications that these
prior drafts of the settlement agreement contain other
approaches, other than STA's or different STA's that the
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state and Federal Government considered in their secret
negotiations.
As you know, they won't turn those over. NEPA
requires a consideration of alternatives to those STA's. We
think we have some. We think others perhaps have some.
Part of the negotiations, Your Honor, that Ms.
Ponzoli I believe seriously mischoracterized consists
primarily of discussions between counsel to resolve these
disputes.
Part of those negotiations involves an attempt on
which, I am afraid may now be aborted, to identify and
evaluate alternatives to get that process going. It has to
be done, the IS process to get that going.
Mark me for my words, Judge -- please write it
down. Have your clerk write it down -- we don't want delay
out of that process. We want a scientific analysis where we
can present the alternatives that apparently haven't been
considered. Certainly haven't depend evaluated publicly.
To that end, Judge, we have Ms. Ponzoli noticed
reference and notices of depositions. If there is a thought
about that there are no adverse impacts, envirornmental
impacts, again we don't concede that is a part of NEPA, but
if that thought is current, we have noticed depositions
about federal officers most knowledgeable who would know
about potential adverse impacts.
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We have done it, I might advise the Court, in prior
discussions. The discussions with the state and the Federal
Government has attended or particpated in at least 3 of
those meetings that I am aware of. One is scheduled for
Monday, and that's just among the lawyers.
One of the purposes of that was to discuss these
alternatives and how to proceed and how to save time
overall.
One of them was so no one would be damaged in the
state litigation. This litigation was to have a 60 day stay
which would be litigation and substantively neutral, so we
could try and work these things out.
Ms. Ponzoli has cast that in a negative light. We
thought, and I think some of the state officials thought it
was a very positive matter. We are sitting down trying to
work these out.
I think it is short-sighted to scuttle those kinds
of discussions on a temporal thing about discovery rights.
Mr. Burgess on the discovery thing will address the
merits, judge, but I would suggest, and Mr. Blank will
address the merits of the cities and our representation,
which has been open, aboveboard. There are no conflicts.
The clients don't think there is a conflict.
Unlike the secret negotiations, those two city commissions
met and discussed this in open commission meeting, Your
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Honor. This wasn't a secret. This has been available from
the minutes of those city commission meetings, and
otherwise, for I don't know how long now; two years, I
suspect.
In terms of the city, our firm, Mr. Blank and
others, I have represented the cities as this court knows.
We report to the cities. We are paid by the cities
who have an arrangement with the Florida Sugar Cane League
to reimburse. There is a commonality of interests, Your
Honor.
There is no doubt about that, but there are
different interests. I've represented too many local
governments to know the importance of separating out those
interests to allow that there is a commonality of interests
here, Judge, although there are distinct differences.
Finally, Judge, we are not seeking to use this to
hold up. We want that state administrative process to go
forward. Mr. Burgess will address it. Let me give you one
more example of the mischaracterization.
The testing that you ordered to go forward, subject
to normal evaluation by the magistrate, was designed for 15
months, so you get in there wet season, dry season, and get
the work done.
The ecology is much different when it is dry now,
Your Honor, as Your Honor knows, when the rain starts coming
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in another 8 weeks.
We think this is an attempt to keep us out of there
in the dry season so we can get in there. We need to get in
there immediately, Judge. Those administrative proceedings
won't even start, I suspect, for several months.
Ms. Ponzoli is right. We have been diligently
negotiating with her I guess for about 8 months now, to know
avail. We will continue, and I assure you we will continue,
but as Mr. Burgess will tell you, we need your assistance,
otherwise scientific evaluation will be held up.
That, afterall, Judge, is the gravamen of this
whole thing. It is the gravamen of the NEPA claim; the
alleged damage to Everglades National Park and Loxahatchee.
We need your help on that.
THE COURT: How about Ms. Ponzoli's comment, that
if I should require them to produce discovery at this time,
why should you not also produce it?
MR. EARL: We have no problem, Judge. We've asked
them in meetings, "What do you want to know? What do you
want to do? Propose a schedule. A plan. File it. If you
want to do it in Federal Government; you say you don't want
to. If you want to, follow the rules. File a request, We
will consider it. It will be subject to the Judge's and the
magistrate's jurisdiction."
That's fine, Judge. If they want discovery here,
26
that's fine. We will comply as we normally do with the
rules .
THE COURT: All right.
MR. EARL: Thank you, sir.
THE COURT: Thank You.
MR. BURGESS: Good morning, Your Honor. Rick
Burgess.
THE COURT: Good morning.
MR. BURGESS: Your Honor, with respect to the two
court orders, and specifically the order on request for
production of documents, and your referral of that matter to
Judge Bandstra, we would say all that we are requesting from
the United States at this time, they have represented to the
court they have provided all the settlement technical
documents m.
We have no way of knowing that, Your Honor, until
we receive their privileged list. In a letter from Ms.
Ponzoli in November, she promised the privileged lists, and
then this court announced its intention to enter into the
consent to approve the settlement agreement.
Since this Court's order in January, we have once
again requested production of the privileged list. We
haven't seen it. We simply do not know and cannot know what
documents we don't have, unless that privileged list is
produced.
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Concurrently, Your Honor, has in his order,
provided a mechanism by which Farm Interests could show
entitlement, I believe, to the magistrate to the iteration
she spoke of, of the settlement agreement.
Again, without that privileged list, we have no way
of showing the connection between those iterations and the
settlement documents that Your Honor has ordered the United
States to turn over.
So, with respect to the production of documents,
all we ask for is the privileged list.
Ms. Ponzoli addressed documents that have been
given to the cities in previous depositions that have been
taken by the cities, but, of course, Your Honor, again,
that's a red herring. it is not what is at issue today.
Today what is at issue is the entry and inspection
requests of the League which Ms. Ponzoli has represented if
this court were to reaffirm its decision to send that matter
to Judge Bandstra, we would have a hearing before judge
Bandstra to determine the scope.
I would point out, Your Honor, that the cities,
when the League was not a party, also, did seek leave from
the United States to conduct low level aerial
reconnaissance, for scientific purposes, over the Park and
the Refuge, and that request was denied, Your Honor, by the
United States.
28
So, perhaps one of the reasons the cities' experts
did not have expert witness documents was because they were
also similarly denied entry and access to the Park.
For them to come before Your Honor and say that
they have given everything to the cities again is not
instructive on the 2 points that we are here about today;
the privileged list and entry and access.
As Mr. Blank will address, Larson and Davis, Your
Honor, were listed as experts by the cities of Belle Glade
and Clewiston, not by the Florida Sugar Cane League.
Ms. Ponzoli quotes a letter from me dated February
4, 1991, in the capacity as representing the cities, where I
told Ms. Ponzoli that the expert witnesses who may testify
at trial for the city of Belle Glade did not have or they
have not formulated anticipated testimony, nor expert
opinions, as of the date that she wanted the documents.
Therefore, they didn't have any.
As explained in the letter, Your Honor, the reason
they did not have any is because they had not received the
United States' expert documents to review and to consider.
These are defendant intervenor expert witnesses who
will be responding to the expert opinions and conclusions
and allegations of the United States.
As is also pointed out in the letter, and as
pointed out in the declarations that were filed by Larson
29
and Davis, both Larson and Davis said they needed access to
Loxahotchee and to ENP in order for formulate those opinions
and conclusions, but they could not at that time.
Just like you would not take a deposition of an
expert witness if he hasn't formulated expert opinions and
conclusions, you cannot send documents upon which those
opinions and conclusions are based, if the documentation
does not exist.
The letter is replete with references that as soon
as the documents are forth coming from the United States, we
would tell them when Larson and Davis had documents to
produce.
THE COURT: Ms. Ponzoli says that they have already
indicated that they have prepared and submitted reports to
someone by their statements made about findings.
MR. BURGESS: Your Honor, the point that she makes
several weeks ago, when Larson and Davis appeared on the
Sage Committee, that was on behalf of sugar companies, not
on behalf of the cities of Belle Glade and Clewiston.
They had not, as of the time the letter was
written, and Mr. Blank can tell you whether or not as of the
time today -- I don't know -- formulated any anticipated
testimony or expert opinions for the cities of Belle Glade
and Clewiston.
She didn't seek documents from them, in their
30
capacity as consultants or experts for the Florida Sugar
Cane League, and that is, I think, an instructive point,
because she comes before Your Honor today and says that they
have not gotten document one.
They have not asked the Florida Sugar Cane League
for document one, for deposition one, for interrogatory
number 1. They have taken a position since July that
discovery in this matter is over. Therefore, they haven't
asked for those things, but yet they come up before Your
Honor and say they have not received those things.
THE COURT: She says that the cities, however, are
in default of several orders.
MR. BURGESS: Well, Mr. Blank can address that,
Your Honor. But the letter that she is referring to
explains why they are not in default of orders, Your Honor.
That is not the case.
When they moved to compel, after magistrate
Bandstra issued an order on that, I recall the cities moving
for reconsideration of that order. I don't know whether the
order was reconsidered or whether they moved to have a
hearing on that or not, but the matter is they are not in
default, as for as I know the cities, of any existing
orders.
But, again, if she wants documents, technical,
scientific documents from the Florida Sugar Cane League, she
31
needs to ask the Florida Sugar Cane League. This she hasn't
done.
But then to come before Your Honor and say, "If you
grant discovery today to the League, it needs to be
reciprocal; discovery under the Federal Rules of Civil
Procedure is always reciprocal. It should be reciprocal.
It has been reciprocal since July. She just hasn't
decided to take advantage of that.
Now, with respect to their offer of 8 months ago,
entry and access to the Park and to the Loxahotchee, and
that the League would have had a lot of the data if they had
taken them up on that offer, every time we hear that offer
repeated, it changes, but what is instructive I think, Your
Honor, is back when it was made in September, of 1991, in
their objections to the League's Rule 34 request, they said
that the League has been offered access to all sites at
which Dr. Ronald Jones did water quality and soil core
samples in order for the League to corroborate his work.
The same restrictions that apply to Dr. Jones would
be sought from the League; scientific proposal, proper
permits, etc.
Well, two issues Your Honor, We believe that much
of the United States science is flawed. We believe that Dr.
Ronald Jones dealt with one aspect of the problem,
phosphorus. That's what he went to look for. That's what
32
he found. That's what his opinions and conclusions are
based upon, but in the League's opinion, the problem with
the Park and the Refuge is dydro-period; the flow, the
timing, the distribution of water.
We need to go to other areas that than Ronald Jones
went to and test for different things than Ronald Jones
tested for in order to prove our theory of the case.
So, we were offered the opportunity to corroborate,
and that's at page 22 of their objections, to work with Dr.
Jones, which is defined in the dictionary to support or
confirm by new evidence.
We don't have any interests in that in addition to
doing what we want to do with respect to hydro-period.
The second part of that is interesting. The same
restrictions that apply to Dr. Jones would be sought from
the League. After we got that objection, we filed a request
for production to the United States for the permits that Dr.
Ronald Jones got.
What we received back, as contained in our motion
to compel, was not the permits that they said we had to
obtain, but a cooperative agreement between the National
Park Service and Dr. Jones employer, F.I.U. which provides,
"This study is being done at the request of the U.S.
Department of Justice in support of the case of U. S. BSFW
and DER."
33
"As such, the study and its result are protected by
attorney-client privileges as lawsuit work product and are
not public information," citing Federal Rule of Civil
Procedure 26(b) 1.
So, the same permits and protections that they
wanted the League scientists to obtain, and they asked for
the hypothesis and the justification and what kind of soil
samples are you going to test for, and what labs are you
going to use, and what QUAC procedures, and on and on on,
were not applicable to Dr. Jones.
Dr. Jones, of course, is the federal expert witness
whose affidavit, at Paragraph 16, provided that he has spent
several years, made hundreds of visits to collect data to
Everglades National Park and the Loxchatchee National
Wildlife Refuge.
So, we know the United States has been in there
over 5 years, I believe Dr. Jones testified to. A lot of
the color charts that were shown here at the hearing for
approval of the settlement agreement were Dr. Jones' work.
What we would like, Your Honor, is the ability to
go into those some Park and Refuge to test our theory with
respect to hydro-period.
THE COURT: I am going to have to ask you to
shorten it up because I am pretty close to being out of
time.
34
MR. BURGESS: Okay, Your Honor.
I will yield to Mr. Blank, other than to state and
echo, if I may, the concern of Mr. Earl with respect to the
time period.
We have asked in our requests for 12 to 15 months,
but if we can get in in the next 6 to 8 weeks, to get a dry
season, and then another part of the wet season during the
summer, we can go a long way to getting what we need to
participate effectively and meaningfully in the state
administrative process.
THE COURT: All right, sir. Thank you.
MR. BURGESS: Your Honor, I also want to bring the
court's attention with respect to your order denying the
Farm Interests leave to file motion in response to the
United States and conservation intervenors, motions for
summary judgment.
We asked to file our instanter response. The Court
entered an order saying we should raise it today, if we
don't think it is moot.
We don't think it is moot, especially since the
conservation intervenors' motion for summary judgment is
still pending. They have represented in open court to Your
Honor that the settlement agreement does not dispose of
their claims.
Our motion for leave to file response goes to the
35
conservation claims, conservation intervenor claims, and the
United States claims. We would like, Your Honor to allow
that response to be filed in response to the conservation
intervenors claims.
THE COURT: All right, sir. Thank you.
MR. SAXE: Your Honor, the United States, there
will be no argument on that; on that motion.
THE COURT: Your name, please.
MR. SAXE: Keith Saxe with the U.S. Department of
Justice. The United States has a position on the mootness
of that instanter.
The motion to file the instanter response, if the
Court is not going to hear argument, the United States would
request an opportunity to submit written argument on that
question before the Court rules.
THE COURT: Granted.
MR. SAXE: Thank you, Your Honor.
MR. BLANK: Good morning, Your Honor. Robert Blank
representing the cities of Belle Glade and Clewiston. I
know your time is short, and I think Mr. Burgess and Mr.
Earl have touched on the major points that I was going to
make with regard to our representation of Belle Glade and
Clewiston.
I would just like to assure the Court that our
representation has at all times complied with the rules of
36
professional responsibility.
We've been very careful with regard to our dual
representation, but since there is a commonality of
interests, and since this matter was discussed very
intensely with both clients, we feel our representation at
all times has been appropriate.
THE COURT: I don't think Ms. Ponzoli is
questioning your ethics.
I think what she is doing, indeed, is suggesting
only that your representation of the different interests is,
indeed, consistent with loyalty to both sides, and that your
distinctions, as far as discovery is concerned, are
distinctions without a difference. I haven't heard anybody
question your ethics.
MR. BLANK: Well, thank you. I am hopeful that's
not the case.
I would like to point out to the Court that the
cities are not seeking any discovery at this point in time
from the United States.
As for as the cities are concerned, this case was
effectively ended with your entry of the order, and we do
not have any counterclaims pending, and we he do not intend
to pursue any claims at this time.
The cities are not seeking the discovery that the
Farm Interests are, and I think Ms. Ponzoli is really
37
clouding the issue, when she brings to the Court the prior
discovery that was being conducted with respect to the
cities.
The Farm Interests are now seeking entry into the
Park and Refuge. The cities are not. The cities have never
received any of the information that the Farm Interests are
seeking, and so I really don't understand the relevance of
the cities' posture with regard to prior discovery on the
status of this case at this time.
THE COURT: How about the production of the
information that Ms. Ponzoli says that the city should have
produced and haven't?
MR. BLANK: Well, I think Mr. Burgess explained
that, Your Honor. The production that was required were the
documents which were utilized by the experts Mr. Larson and
Dr. Davis, with regard to expert testimony.
They were hired by the cities to formulate opinions
with regard to the government's case; that is, whether, in
fact, there was damage to the Park and refuge.
Certainly, Mr, Larson and Dr. Davis have a lot of
data with regard to the Everglades. They have been studying
the Everglades for years and years, long before they were
retained by the cities, but they were specifically hired by
the cities to review the government data, and our response
to the government was they have not reviewed that data yet,
38
because at that time it had not been produced.
THE COURT: All right.
MR. BLANK: By the way, Your Honor, that issue has
been fully briefed to the Court. We have responded to the
government's motion to strike their expert testimony, and it
is fully briefed to the Court.
THE COURT: All right, sir. Thank you.
Now, what response would you like to make Ms.
Ponzoli? Is there anyone else who would like to very
briefly comment?
Is there someone here for the Miccosukee Tribe?
MS. PONZOLI: Yes, sir, there is.
THE COURT: You had a brief response.
MR. CHRISTU: Not on this issue, On a separate
issue. A very, very brief issue.
THE COURT: I will hear you when Ms. Ponzoli is
finished. Go ahead.
MS. PONZOLI: Your Honor, I think it is fairly
clear that there is no satisfactory answer to the merged
identity of the attorneys; that a single client was paying
for it all, and that they shared the same experts.
There are, in fact -- and I have cited them in my
briefs -- enforcement orders from Jundge Bandstra. There
was an obligation that they reveal all data by February 4,
1991, that their experts had.
39
I think this artificial distinction that they are
drawing between what they did or did not develop for the
Cities of Belle Glade and Clewiston, and what they did or
did not develop for the Florida Sugar Cane League, is
genuinely disengenious.
I think they have admitted that your discovery
orders may enlarge or delay the state administrative
process, and I think that's a very large danger that they
have. They concede that they have a lot of information they
have not shared, and they indicate that I have only but to
ask, and than we can fight over whether I can get it.
My position remains the same. I think the
discovery should be over here. If it is not, it should be
reciprocal, and I guess we will just start to have huge
discovery wars in federal court over issues that are really
going to be litigated in state court. I see no alternative
to it .
THE COURT: Well, I think we will try to avoid
that.
MS. PONZOLI: I would hope so, Your Honor. Thank
you.
THE COURT: All right. Does anyone else care to
briefly comment?
MR. DREHER: Your Honor, I am Bob Dreher. I
represent the conservation intervenors in this action.
40
THE COURT: Yes, sir.
MR. DREHER: I guess I ought to, since this is a
status conference, just report to you on the status of our
part of this litigation.
In some respects, I feel a little bit like the
orphan child playing in the hearth unattended. We have
claims in this action as intervenor plaintiffs, but they are
valid claims, stating valid claims under state law, that I
think quite clearly we have a right to pursue, whether in
this court or if this action had never been brought, we
could have pursued them in state court.
Those claims at this point have not been resolved.
I am still optomistic that they can be resolved promptly. I
guess, to the extent that the existence or the pendency of
our claims and of our motion to summary judgment, which is
still before the Court, to the extent that the pendency of
our claims affects any of the decisions the Court need to
make about any of the matters before it, I would submit to
the Court that it is my hope that we can resolve our claims
on the basis of joining in the settlement agreement within
45 days.
If we cannot do that, I would report to Your Honor
that we intend to proceed with our motion for summary
judgment and ask Your Honor's indulgence in ruling upon that
motion.
41
I want to make very clear, however, to Your Honor,
so you understand where we ore coming from, that if we do
find ourselves forced to continue litigation in this case on
our claims, that the relief we intend to seek will be to
participate, in an equitable basis, in the settlement
agreement in reflection of the fact that we have claims that
are identical to the United States claims in many respects,
at least on the first two counts of the complaint that's in
action.
We are not going to be trying to change the basis
of the settlement agreement. And if we can reach settlement
with the defendants to permit us to participate, our claims
will be resolved, and at that point it seems to me to me,
Your Honor, this case will truly have ended in this court,
except for such supervising as Your Honor needs to do.
THE COURT: All right, sir. Thank you.
MR. CHRISTU: Thank you, Your Honor, Eric Christu
of Carlton, Fields for the Miccosukee Tribe. Judge, I would
appreciate just a few minutes of the Court's time to present
a simple clarification of your order approving the
settlement agreement; one that we think is simple enough
that it doesn't require a formal motion, and since all the
relevant parties are here this morning, we decided to raise
it with Your Honor.
The February 24th order, approving the settlement
42
agreement, contains a specific paragraph providing for
retention of this Court's jurisdiction.
It provides that jurisdiction is retained for the
purpose of allowing parties to the settlement agreement to
come back before Your Honor.
The January 24th order that this court entered
approving the intervention of the Miccosukee Tribe also
provides for a retention of jurisdiction permit the tribe
to, on certain terms and conditions set forth in that
January 24th order, come back to this court, and we simply
wanted to clarify that your order of February 24th could in
no way supercede or be construed as superceding the January
24th, 1992 invention to the tribe.
THE COURT: I did not intend to do so.
MR. CHRISTU: Judge, that's the only clarification
we needed.
THE COURT: All right, sir. Has everybody said
what they wanted to say, up to a point, at least?
I am hopeful that a lot of these problems that we
are talking about can be taken care in the administrative
process.
However, I will carefully consider all of the
points that have been made this morning and, hopefully, you
will hear from me rather quickly, in view of the fact that
time has become somewhat of the essence.
43
So, if there is nothing further, we will be in
recess until you have heard from me further.
DATE - - - - - - - - - - - - - - - - - - - - - - - - -
I, Jerald M. Meyers, do hereby certify that the foregoing
transcription is a true and accurate transcription of my
stenographic notes.
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