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UNITED STATES DISTRICT COURT CASE NO. 88-1886-CIV-HOEVELER
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UNITED STATES OF AMERICA,
vs. SOUTH FLORIDA WATER MANAGEMENT DISTRICT
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the above-stated matter before the Honorable Samuel J. Smargon, Magistrate, in the U.S. Federal Courthouse, Miami, Florida on the 7th day of March, 1989.
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 APPEARANCES:
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88-1886, United States VS. The South Florida Water Management District et al.
united states, please.
United States, Your Honor.
Attorney for the Southern District of Florida, Mr. Steven Herman who is lead counsel for the Department of Justice, Robin Herman, Chief of the Civil Division, Mr. Richard Harrison, his co-counsel on this case, and Terry Nelson who’ll be representing Florida Keys Coalition.
On behalf of the defendants.
the South Florida Water Management District, and with me my colleague, Jerry Jackson and Stan Yago (phonetic) who is counsel with the District in West Palm Beach. Also David Crowley representing the State of Florida.
appearance for the agricultural intervenor applicants. My name is Tom Ankerson. With me is Tim Crutchfield.
3
you?
There’s a motion before the court to stay discovery. This matter’s been referred to me by Judge Hoeveler for all discovery matters – the language is: "For all discovery matters as are permissible under the magistrate’s Act."
discovery pending the motion to dismiss that is before Judge Hoeveler.
that we’re all on the same wavelength and apparently I am with him, that is, that the motion to dismiss is to be heard by him and not me.
matters, and the first matter to be handled in relationship to that is this motion to stay discovery.
discovery pending the motion to dismiss a And I think I should hear from them now.
4 everything that’s in four-volume file. I have skimmed it. I have a working knowledge about what the case is all about, but if you would put it into context for me--
minute view of the case from your side, and then I’ll hear from Ms. Ponzoli and the plaintiffs’ side. Tell me a little bit of what the case is about, what your position is in the case and then tell me about your motion to stay discovery.
I ‘m tempted to say congratulations for joining us on this great adventure. We have –
forward to the case. I am told by Judge Hoeveler that you all are outstanding lawyers. I must admit the pleadings are fascinating. They’re well written, well thought out, and I think the case has some merit to be heard by a court. So we’ll take it from there.
the last comment –
Your Honor.
perspective, but it’s very difficult and I have a hunch that
5 The United States may have a slightly different view of perspective than I do.
received a lot of publicity. We have pending a motion to Stay discovery pending the resolution of a motion to dismiss, a motion to join the corps of Engineers defendant or, in the alternative, to dismiss, or – and the third motion – it’s not an alternative, we want all three of these resolved, our motions to intervene and our colleagues’ in the back that represent potential Intervenors.
Intervenors and six agricultural Intervenors consisting of some individual farms and some trade groups. And we have quite a dispute going on , particularly with the trade associations, over their ability to be in court in this fictional entity capacity of associations who aren’t actually out cutting sugar cane and yet want to have depositions and ask questions and all of that so we have quite a dispute going on with them. They’re not quit sure they want to be bound by this court in what happens here and they want to have another bite, or ten bites, of the apple later on.
those agricultural groups.
very precedented and unusual case.
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state law against two quasi-state or state agencies over an issue of enormous importance in this state and, really, to the country.
from our structures, that we’ve been operating unpermitted structures, that we have violated the Swim Act, that we’ve breached our memorandum of understanding with the Corps. and the South Florida water management District and the Park Service, the three-part agreement.
agreement. They have dropped, in a Christmas Eve excise in Jettisoning excess baggage, an argument on repairing rights, property clause under the constitution, federal common law of nuisance, and Public Trust Act. So we’re beginning to see what the government’s really asking, and our motion to dismiss dispositive as to all those issues. We think we have suit stoppers on all of them. Obviously we’ll see what the Court has to say.
is ripe to be heard? Are all the pleadings in, everything is resolved except for the hearing before the judge?
think it’s the 25th of March, we have a reply due.
7 response?
yet for argument, or, in fact, hasn’t even agreed to hear argument yet, is that correct?
think are interesting. They’re not totally pertinent to the issue today, but I think if we’re going to put this in perspective we ought to note these things.
Clean Water Act. The United States Attorney is obviously that official charged with enforcing the federal the mainstream federal law to protect out nation’s waters, the Federal Clean Water Act. That isn’t mentioned anywhere in the papers.
don’t know what their interest is. We don’t know if they know about the suit. We know one thing, that we operate our structures in conformance with their rigid, rigid demands. They, indeed, own some of these structures that are at issue here. They have to be parties in this case.
waive its hand t it and said, "Oh, we are the government, therefore we’re everyone."
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we believe that this is your classic, your textbook case for July 19.
about? Let’s say for the sake of argument – I should say how much discovery – for the sake of argument, if your response is due the 27th and Judge Hoeveler gives you and expedited hearing date within the next week or two or three, then we’re talking about a window of about maybe four to six weeks.
be prepared to argue this the 28th of March, the 27th of March –
to six weeks, somewhere in there you’ll get your hearing and a ruling from Judge Hoeveler, how much discovery would go in that period of time, and how would it affect the lawsuit if, let’s say for the sake of argument, you were to lose and then discovery would have to pick up after that point, how would you be hurt by that? Would you be hurt? I’ll ask the government the same question.
forward in that brief period of time, I doubt that we would
9 be hurt very much.
going to be in the case; we don’t know whether the agricultural groups will be in the case.
read a lot of documents, and this really anticipates what I was going to say about the overview of the case, we think that this is really a challenge to the growth in South Florida. We’re talking about not having enough water and not having enough clean water.
We have intensive agricultural use south of Lake Okeechobee in particular. And this case is about who gets to use this rare water and how much phosphorous can be put back into the water, and how valuable are the Everglades. And if the Everglades are as valuable as the government says they are – and, by the way, we’re not really disagreeing with the Fish and Wildlife Service or the Parks Service or the United States Attorney. I mean, we’ve been doing this for 20 years, worrying about the Everglades, worrying about the environment. We have some of the most well recognized experts in the entire world on nutrient pollution of tropical systems working on this problem. We’re not really opposed to them in terms of environment vs. Polluters. But what we’re really looking at is a land use issue of unprecedented
10 proportions.
and save the Everglades. Now there other people who say with tinkering, fine tuning, with sensible management, we can have both. And we’ve got to put our best minds to it. 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 accorded in this case against us and against the state, the real parties in interest, the people whose ox ore going to get gored, are going to be those people discharging phosphorous into this water system.
shall have no more than .05 parts per million phosphorous leaving your structures, there is no way for us to achieve that other than some very draconian consequences upstream.
particular, have to devote substantial resources to this case. They have been unwilling to say that they will be bound as associations buy the outcome of this case, res judicata, and we don’t want to litigate this case three or four times. So we have a major gripe with them and we want that settled, obviously, by the court.
do a full-scale document review. They’re going to want to have discovery -- extensive discovery.
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over a few documents, running the Xerox machines, and then have to go back for the environmental groups who are also not in the case formally. We’ve worked out a stipulation with the environmental groups over the issues. But in particular with the agricultural groups, we don’t want to have to do that all over again. We are looking, in our—
anything additional to what you’d be entitled to. We’re just talking about cranking up the machines to make more copies, aren’t we?
way: We went to the District to physically get a lay of the land, to see what was involved here, because we’ve had conversations early on with the government. This is kind of like asking IBM to tell us everything they know about computers. We have one branch of people that does water quality analysis. There are forty professionals. They have fairly large offices. They have file cabinets. Much of the stuff is computers, years and years raw data, analyses synthesized into the next stage of report, final report, a a lot of laboratory notebooks; enormous amount of data. If you say we want all water quality data, I think we’re talking about wholesale reproduction of, I would say, millions of documents. We have a library most of which is devoted
12 nutrient pollution in way or another.
drawings for the structures that are used to carry water throughout the District. One of the requests they made informally is for material like that. We have hundred volumes of documents that are the design drawings and operating instructions for these structures, blueprints included.
airport.
and you would need the head start to deal with discovery. Tell me again if you’re prejudiced by continuing discovery for the next six weeks, as opposed to wasting six weeks, waiting for the resolution from Judge Hoeveler, and let’s just say for the sake of argument that he rules against you, and your discovery starts again, six weeks – how are you prejudiced by continuing it as opposed to staying it?
that way, assuming we’re not going to win the motion to dismiss, it’s hard for me to come up with an argument on prejudice, except to the extent of not knowing exactly the full scope of the trail, and not knowing exactly what the intervenors who aren’t here are going to want. But one -- I think by way of answer we would say, if
13 your assumptions – if we take your assumptions as true, we would start photocopying umpteen copies of everything on the assumption that one or more of the parties are going to want everything. So we would just start doing normal production. It would entail paralegals – we would want to put it on computer, index, have key words: all of that first class, big time litigation document work.
very strong motion to dismiss.
(unintelligible) motion to dismiss.
with you. I’m sure it probably is done somewhere in the country, but I know I’ve never don it, and it’s not done very often.
talking about – and Mr. Crowley can speak for the State of Florida – we’re talking about opening the floodgates, to use probably an inappropriate pun here. We have an enormous number of documents, and to really try to respond even generally to their request would be very difficult.
been directed to say this by the client – we would be willing to try to work something out in a limited way on
14 documents alone infinite categories so that the United States can begin to look at material – I don’t think they understand how much is there and how difficult this task is going to be. We will try to cooperate with them with finite material in discreet categories while awaiting the resolution of the motion to dismiss, while we’re waiting to find out whether we’re going to have the agricultural people in here or not. But one thing we think is going to be terrible prejudicial is if we have any depositions and enter any interrogatories, because in our mind, that means you have decided who the parties are going to be.
deposition of a key technical person, having the agricultural people not there and then have them come around six months thereafter, when their motion has been resolved, or three months, even, and want to take that deposition over again. I don’t think that would work in prejudice to the parties because I don’t think anyone is going to be able to take intelligent depositions here without beginning to sort through the enormity of this data. I really –
though, at their peril? Because if they take the deposition of a witness, that’s it. They get one bite at the apple. And even though some new information came in that they knew or should have known, that they would not be allowed to
15 depose the witness again. They’d have to come back to court and ask formally for the authority to depose the witness again.
right with the United States, but if the agricultural groups are not in, it would be very hard for them not to be heard on the argument that "W weren’t parties, we weren’t allowed to ask questions, therefore, we have out day with this witness too."
they would. That would be your notice to depose their witness, and you could hold off knowing that there’s a possibility of the intervenors.
would be busy – that’s the other thing. It’s our documents. We don’t think the federal government has many documents. It’s really a one-sided effort. The State of Florida also has an enormous number documents.
The agricultural people have been told by all the parties – rather, by both the United ‘states and Us – we don’t want you in the case, we don’t think you’re a proper party. Presumably neither of us are going to let them ask questions in a deposition. So I don’t see how, until their status is resolved, we can go ahead with a deposition in this
16 case. I really don’t. I think that has to – of all the motions – that has to be resolved.
Corps. – and that’s a very important issue in this case.
Engineers ore out there saying to us, you keep those structures operating within the following tolerance limits. And, Your Honor, if you could see the actual charts and instructions we’re literally talking about lines, feet elevation, Lake Okeechobee, feet elevation in various water structures.
discharge more than .05 parts per million water – just to pick a number – that is going to directly conflict with the flood control mandates in this part of the state. There is no way that the Corps. of Engineers isn’t going to be terribly concerned about that.
You know, the State Water Quality Panning Process, for Lake Okeechobee. And we’re going to be doing the same – in fact we’ve started the process already for the very areas under consideration here, the agricultural areas in the Everglades.
Swim plan, the Corps. of Engineers appeared, not to talk about
17 endangered species, not to talk about the threats to the Everglades, but to remind everyone in the audience, on television, that this is a flood control program and you, Water district, better be careful not to stray too far from the mandates that were given to you by us, the Corps., to watch for problems with water supplies and flood control in Southeast Florida.
in this case that may be a little different from those interests espoused by the United States Attorney’s office, would be dispelled by listening to that type of testimony.
is the Corps. in this case. They have to be in the courtroom. We have to know that we’re not going be put in an impossible position vis-a-vis their mandates to us. We have federal law demanding that we follow certain regimes and those regimes are going to be inconsistent with virtually any of the relief that the United States government wants from us in this case.
footnote, we don’t need to worry about the Corp., we’re the United States, we represent everybody. That isn’t going to work. That just doesn’t work in this case. It’s very unusual in that regard that the interests are so strikingly different.
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weeks for resolution, that – I will turn the argument around and say, what real damage is done by waiting to find out what are the causes of action, if any, that are going to survive this motion. Who are the parties going to be? So we’re all in the same deposition and we know who the recognized attorneys will be and who can ask questions. And where is the Corps. of Engineers in all of this? And I would say that there is prejudice to both the State of Florida and to the District, who are the ones who are going to have to start this enormous discovery effort if that isn’t resolved first.
want to not employ a scorched earth policy here, unlike some other people, and we would be willing to try to sit down, meeting in a room before these motions are resolved, for discreet finite documents, recognizing that there’s really going to have be some creativity and some give and take here because when you say to us, all water quality documents, we’re going to say we have computer storage on a mainframe computer of phosphorous data going back fifteen years from thirty-six stations, and that’s going to be an enormous undertaking, backing that out. Or we’re going to say to you, we have all of these studies over here.
won’t say unprecedented proportions, because I don’t know the
19 other cases in the District, but we are talking about a case of enormous significance to this part of the world, and one in which it’s got to be litigated carefully and responsibly. And we're just starting it. We’re just floating this craft out. It’s not in deep water yet, and I think we ought to find out who’s going to be on this vessel before we march off and start doing something that may have to be done all over again.
Can I hear from the State of Florida? Do they wish to say anything at this time?
First let me ask you the direct question as to how are you prejudiced if I do not stay discovery?
and I’d like to just very much make it clear – we are not saying that discovery should be stayed forever, or that we don’t intend to produce documents, or that we’re resisting production of documents, or witnesses or any other form of discovery. We’re simply asking the court to keep in mind that all three of the main bodies here are government bodies that represent taxpayers.
stuff, if possible, just once.
I would think that perhaps the United States might have that same consideration, or concern. I know they have a lot more money than we do. But we could potentially ---
you’re funded by the government in some ways, are you not?
how the united States is funded. My particular agency –
funded by the people here in some manner, shape or form.
Southern district of Florida probably bare a disproportionate amount of that since they’re funding all three parties to this lawsuit directly. Whereas someone from Colorado is only funding the United States. Those of us that live in the rest of the State of Florida are, perhaps only funding two of the government agencies, so I guess it depends on where you live.
that there is going to be any significant prejudice to the United States if we simply wait long enough to see who’s going to be in the lawsuit so we can take depositions one time with all the parties present, and let everyone ask their questions.
21 a week long or longer. We’re literally talking about millions of pages of documents.
boxes. We’re going back through administration of three different governors, at least; multiple secretaries of the Department of Environmental Regulation; personnel that no longer work there that are going to have to be located; we’re talking about having to hire outside people to come in and put all this together. And all we’re saying is, sure, we’ll do that, and we’re glad to do it if it has to be done, but, quite honestly, we don’t think there has been a cause of action stated.
bifurcated nature of things that Judge Hoeveler is going to be deciding the merits of the motion to dismiss, but -- and I know there is certainly some temptation to look at this as just an ordinary discovery matter – we are not here trying to drag our feet or trying to resist production, but ---
matter because of the tremendous volume of documents that you’re concerned about, the numbers of witnesses that we’re talking about, and the fact that at this point we’re talking about three governmental agencies that are all out for the same end, which is a clean, water safe environment, and we’re all looking at it from different ends, I think.
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raised today.
honestly believe our motion is well taken. I mean, I certainly don’t think it’s a frivolous motion or a motion for delay – I’m talking about the motion to dismiss now, and also the motion we joined in to join the Corps. of Engineers.
document production, these depositions, we’re just going to all be faced with, a few months down the road having to do the same thing all over again with the Corps. of Engineers.
to, presumably, get to come back and take all these same depositions over again. So instead of government officials having to give a week long deposition once, they’re going to be doing it three or four or five times.
of everybody getting to look at the files in a coordinated, simultaneous fashion, who’s going to get copies of every single bit of discovery that went to, for example, the Unites States. Then they’re going to come through and go through the files at a different time and they’ll get all the same copies again, plus different copies that they want.
23 know, and there’s a balance here, I realize, in balancing the tremendous expense and disruption that it’s going to cause – and it is going to cause that. It’s going to require a lot of expenditure of funds and personnel tome that – you know. As long as we’re all talking about doing what’s best for the environment, I mean, that’s time that’s going to becoming other areas of the environment that need protection. Instead away from other programs and other areas of the state and we’re all going to be working on this one lawsuit. And , okay, if we all have to work on it we have to, but let’s try to just do it once instead of doing it five times; or doing it over and over again. That’s what we’re here asking and we think that in the balance of things, the few months it’s going to take to decide whether any of these claims can stand up at all – and we think they’re very – we’ve cited cases of the United States Supreme Court that says no cause of action exists fort what they’ve alleged, certainly against DER, and we join in the ones that the District has filed. I mean, they certainly, I think could not be classified as frivolous motions. I think they’re something that Judge Hoeveler is going to; spend some time thinking about and studying for sure.
and how many times were going to have to do this, it would make sense to just enter the stay temporarily, Certainly
24 most importantly with regard to things like depositions and stuff, where actual people are going to have to sit down and be interrogated and then have to be subject to that over and over again,, for a reasonable period of time – and we think a reasonable period of time is until we can figure out who the parties are going to be in the case and what , if any claims are going to be sustained and survive the motions to dismiss. That’s –
like to respond please?
Lethinen, the United states Attorney. Miss Ponzoli will comment also, with the Court’s indulgence.
done the defendant’s own documents will show that we lose four plus acres a day, not a week, not month, and not a year, but four plus acres a day of cattails to scavenger species because of the inaction of these agencies as alleged under the lawsuit. So everyday that goes by is, in fact, a substantial loss to the environment. And Mr. Burkett Neehy (phonetic), Who is superintendent of Loxahatchee Wild Life refuge, is here, and M. Mike Finley is here, superintendent of Everglades National Park, as well.
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day. The damage to the park that takes place every day is incremental to be sure, but the incremental addition of everyday of polluted water damages the park beyond rehabilitation. And if that is, to a any degree a factual matter or something the court would like to determine as a factual matter, they are here.
twenty years. The technique that the defendants utilize to say that it is such a massive and complex problem that it cannot be addressed today, let’s address it tomorrow, is in fact the technique that has caused it to be unaddressed for twenty years.
this case. It filed a lawsuit. It has, in fact , not filed written motions for discovery. Depositions are not set. There’s been no request for depositions. The only thing the government has done is informally pursuant to local Rule, request that opposing counsel discuss how to proceed with scheduled discovery.
request, pursuant to Local Rule, has not been responded to by opposing counsel.
to be produced, that witness after witness will take weeks on
26 deposition, is, in fact – they are able to say it in good faith because they have refused to discuss in good faith what exact documents they could go forward with, what kind of scaled discovery could take place, whether there are written documents that are common to all parties – as Your Honor has pointed out, clearly there is discovery common to all parties. Whether that production of documents could go forward, and depositions take place at a later time, is not something that counsel have discussed with the government, despite their obligation under Local Rule.
massive, unacceptable amounts of discovery rather than discuss the actual discovery that is needed. And each day we have substantial damage done. The –
interrupt you, but I need you to address the issue of the depositions, where there is a question as to whether or not parties are going to be allowed to intervene, and that does become a problem when – let’s say you schedule someone to be deposed from the defense side now, and all of a sudden we have six other agencies or some entities that come into the case; they are probably entitled to also be present at the depos, so it is a concern for a – I would presume for yourself and for the court.
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would be a legitimate concern if we had asked to depose someone. But if we asked to depose someone in which there is any reasonable argument that the intervenors – potential intervenors – need to be there, then these defense counsel have every right to point out to us – and every obligation to first find out who’s going to be – we propose to depose. To then discuss with us, before taking the Court’s time, to discuss orally under Local Rule, that that witness should be -- we should hold that witness until the motion to dismiss is pending. And if we would not agree to that, and they believe in good faith that that witness will create serious duplicate discovery problems, then they’d have a right to come to this Court, but what defense counsel have dome, is avoid the Local Rule in which your supposed to initially discuss specific discovery matters instead of file these blanket motions.
Southern District of Florida are designed to deal with just this kind of motion. A motion filed as a shotgun motion, alleging warehouse are involved, weeks of depositions, when, in fact, they have not discussed orally what documents we want and there are no notices for deposition pending.
and that there is no reason to believe that common discovery could not take place on a sequence matter, and disputed
28 discovery – unless they’re going to dispute everything, not just the warehouse, but document number 1; not just weeks of depositions, but one deposition of a common witness. Until they have the specific dispute they shouldn’t be filing the shotgun motion. The reason for the shotgun motion is to avoid the sunshine that politically the have avoided for twenty years. They don’t like the lawsuit and they don’t like the discovery because of what it will expose to the public.
the rules contemplate. If the drafters of the rules contemplated that motions to dismiss brought in question the legitimacy of a pre-motion discovery, then the rules would have been written that way.
not contemplate that motions to intervene will deprive the primary plaintiff of his or their right to go forward.
the most part, setting aside depositions, which are judicial matters, the documents that will be sought are documents which under the public records law of the State of Florida for the most part, are publicly available in any event.
documents available to individuals who request them. The only reason we have not requested them under the public
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records law – and the law is clear in Florida, that a request under the public records law in aid of litigation is a legitimate request. The public records law does not car and will not listen to an argument that the only reason the citizen of Florida wants those records is to aid in his own lawsuit.
law, the revelation of information under the public records law, because it was done to aid in a lawsuit has been rejected uniformly by the federal court saying whatever reason they want it – the state courts – whatever reason they want, they’re entitled to received it.
that goes by the complaint that is specified in this lawsuit, the facts continue to be damage to the Everglades and to Loxahatchee. The lawsuit is nowhere near as complex as defendant would make it out.
state law, and under applicable written contracts with Loxahatchee and the Everglades National Park, these defendants are obligated, clearly, to take certain steps.
of water you ship out through the conveyance system is not substantially at issue.
30 of the legislature when I served in the legislature, the Swim bill is a simple is a simple statement: You do not send degrading water to Everglades National Park.
that the water that comes to Everglades National Park. violates state law. It does not require warehouse to do that. It’s a pretty simple matter to go forward with that discovery. And in light of the fact that it’s documented that we lose four acres plus every day to scavenger plants because of the facts alleged in this lawsuit, twenty years of neglect should not be compounded by sixty more days or 120 more days of lack of informing the public of what is going on. Especially when it’s a shot gun motion. It is not a motion directed to any request for discovery, and they have refused, under the Local Rule, to meet with the government and orally discuss what discovery we might want, what discovery could be scheduled, whether depositions should be delayed but written documents produced, and so forth like that.
exactly that these kinds of motions not be entertained in the Southern District of Florida. That, in fact, counsel discuss among themselves the specific objections that lie to any individual discovery request and that if those cannot be resolved, like a deposition, then we would expect to come back to You Honor and argue about Mr. John Smith and who is
31 and whether he ought to go forward with depositions. But not the concept of whether or not a plaintiff is entitled to discovery across the board, without individual discussion under Rule 14. That should not be entertained in the Southern District.
I’d like to begin Your Honor, with telling you that I can – before I begin my remarks as I planned – to tell you that to make it a little bit easier Mr. Lehtinen just agreed that we would agree to do a documents discovery for a period of time, and postpone virtually all depositions. There would be no depositions by either side. There would be a documents discovery during this period of time.
for us, and it sounds as though,, from the two defendants, that would be possible for them also.
three areas: I’d like to give you a brief background, I’d like to argue, then, against the stay and their motion to exempt from Local Rule 14, and then I’d like to respond directly to some of the comments that they have made.
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in this for about five months and so sometimes we take leaps and jumps that we think you’re leaping and jumping with us. If you have a question, please stop me and give me the opportunity –
I’ll stop you ask questions.
unmanageable case. But it is, I believe, one of the most important environmental cases, certainly in Florida, if not in the nation, for two reasons:
unique. There is only one in the whole world. And the Everglades is represented in this cases by the historic Everglades at Loxahatchee National Wildlife Refuge and Everglades National Park.
the world, but there’s only one Everglades.
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 paper, but
33 mercury in fish is showing up in the EAA all the way through the water conversation areas. The highest in the nation. This is a every serious problem that we’re addressing in this case.
was attached to the complaint and I would like to explain to you just briefly what we’re talking about.
objections, I’m just simply going to hand it to you. Everybody else in the room is pretty familiar with these geographical areas, and it is the identical map. In fact it is South Florida Water Management’s map.
already know, if you were to take your hand and just sweep it down the map to Florida Bay, that’s where the Everglades were historically. But through this century we have built – we the federal government and the state – all these little red lines are the canals that exist, and we have today a totally manipulated water system in South Florida. We can move the water up, we can move it down, sideways – I may be speaking in a little bit of a general sweep, abut it’s pretty accurate. We’ve got the ability to move this water where we want it to.
34 Loxahatchee Wildlife refuge is circled in green, out to the mop right. That is a – both a conservation area and a wildlife management area.
areas, these exist for multiple reasons, one of them is a water reservoir. Some of it is for wildlife management. These were Everglades. The Everglades agricultural area, which is written, that is all agricultural now. That at one time was sawgrass marshes. We now have 900.00 – it’s almost pretty much comer with agricultural grown in that area.
Honor, is they move the water up and they move it down, for their needs, for irrigation.
what ever has been put onto that land and water is in the soil also comes out with it and begins to move directly into Loxahatchee or moves through this manipulated water system, either directly down to Everglades or, many times it will move through the water conservation areas, almost filtered as it goes through there, coming down into Everglades. And what you get is whatever in the water.
agricultural area up to about 1979 there was a great deal of backpumping that went into Lake Okeechobee. Lake Okeechobee
35 was suffering incredible degradation because of what was being added back into it. And by 1979 we knew the Lake could not sustain this, so what we did, as a state, not we the federal government, but the state, we decided to send it south to Loxahatchee and Everglades National park.
we just shifted the resource toward which we sent it. I don’t think that in a way I need to spend a great deal of time telling you about Loxahatchee and Everglades. There are 25 endangered and threatened species.
may know, developed under very low nutrient conditions. They don’t like agriculture pollution; the don’t like fertilizer. It doesn’t agree.
:You get the parasite, the native parasite in the base of the food chain is killed by the addition of this fertilizer.
case, we would be happy to take you to Loxahatchee and show you physically what happens when sawgrass marsh turns to cattail. There is nothing else. It is insidious. All you see is a monoculture of cattail. The fish don’t live there, the birds can’t live there. Nothing is there but this one single plant.
36 that I showed you and moving towards Everglades National park. Everglades today has phosphorous levels three and four times the marsh level in its background.
obligations under Florida statute 373. That they have violated statutory obligations under 403, under the Swim Act: that they are creating a nuisance and that they have breached both of these contracts that they have with Everglades and with Loxahatchee.
of their motion to dismiss.
clean water for the Everglades. The underlying facts for virtually any cause of action here are always the same: That these defendants have failed to regulate the agricultural pollution and that EAA -- and that our property is being destroyed.
type of relief. We didn’t ask for damages. To date we have not asked for restoration. We have simply asked, go out and do you job, regulate pollution so that we don not continue to be destroyed.
set up a discovery schedule with us. At not one of these
37 formal opportunities have they participated so that we could get a discovery schedule together.
The District came in and said we have too many documents, we don’t know what we have; we can’t tell you how to go forward in discovery because we don’t know what we have, and nothing was accomplished.
and we’ll come back with how many documents we have, the types, the organization, and then we’ll try to set up a discovery schedule.
is too hard to even decide how many documents we have. So I sent to them what has been filed in their reply, an informal document request. There are eleven categories. This is a letter of February 7th. It’s one of the exhibits to their reply memo.
candid with you:; not one of these categories has been discussed with me. No one has said to me, Susan, I could give you 1, 2 and 3; it’s hard, but I can do it. 4 and 5 are impossible and 6 will take a year. Nobody’s talked to me. I turned this over with the expectation we would have another telephone conference in a type of a local Rule 14 conference because the intervenors who are going to be
38 listening in on the conversation, in the same way they had sat in on the December 16th meeting. The District would not participate in the telephone conference.
the intervenors are sitting out there and, oh, golly, gee, they’re going to be want in discovery and we don’t know what it will be. On the other hand, when we have them on the telephone, they won’t talk because they’re there.
besides, I think there’s a very serious issue here, your Honor. This is the federal government’s lawsuit. It’s all very nice and well that ten environmentalists want to intervene on our behalf, and on has been admitted by Judge Hoeveler. It’s all very well and good that six agricultural agribusinesses want to intervene on behalf of the defendant. We don’t want them in there, they’re not happy with then in there because they won’t be bound. But it’s our lawsuit, it’s our property, and the intervenors should not be able to interfere with our rights to go forward with discovery. Certainly not when we’re willing to sit down and discuss discovery with the defendants. They aren’t willing to sit down and discuss it with us.
intervenor might succeed and might be allowed to come into the case?
39
of how that will affect your discovery in the future. Is that one of the reasons why you’re willing to concede, or at least at this point delay the taking of depositions for some period of time?
practical reason. I think we need to get our documents and look at them before we start the depositions. It’s just a very candid answer. We need our documents, we need to look at them. We don’t want to do this more than once a year. It’s fun, but it’s not that much fun.
the record, the Corps. is before the Court. We are the United States. If the Court needs the Corps in anyway, they are here.
they will send it to me and I will have to produce that discovery from the Corps. So that is not and issue to slow down this lawsuit.
assure you that I believe that our requests that go out now can Be coordinated and I don’t believe there should be any – there should certainly be no duplication. If they needed
something in addition later, I think it would be a very small thin that they would need, if anything. I cannot speak for the agricultural intervenors, I have no ability to speak for them.
you, I do not think can be granted. The discovery under Local rule 14, they are virtually not entitled to an exemption for 14. 14, under subsection 9 is highly specific as to exempt actions. Such things as civil forfeiture, VA loans, bankruptcy, etc. they don’t fit any of the categories. They cannot be exempt from 14. They are absolutely obligated to sit down with us, set out a discovery schedule.
our getting documents from them and they don’t need anything from us.
they’re sitting ;out at the park, they’ve got an agent of the District on their Swim process that sits at the park in front of a computer and has access to virtually anything we have.
they have come out and can have virtually all the documents that exist out there. I can think of only one body of document that they cannot have and that is some work product that I am presently working on wit ha specialist. And if I
41 decide to use that at trail, they’re certainly entitled to that also, at that point that I make that decision.
Loxahatchee. I think they’ve waived their right to a stay here.
to sit down and work on which documents can be produced reasonably. I’m willing to put off depositions for a period of four months – that’s four times what the Rules of Civil Procedure would generally allow – and work it out. They have to sit down with the federal government and work it out.
as the protector of the Everglades, and we feel bad about the protection that we’ve been given. We are being destroyed because they, to date, have not gone forth and regulated their pollution in Eaa. We do not want to shut down growth in South Florida. I don’t think that it’s our position that you have to choose between the EAA and Everglades National Park.
regulated and could do things to control their pollution, and you could, in theory, have both.
The Corps is part of the United States, I’ve already explained that to you.
42
have our documents. If there’s anything else that we have, they’re supposed to contact me and I’ll get it to them under Swim.
rule us to sit down to a Local Rule 14 conference and come up with a plan, together, and the government is certainly willing to be reasonable on the documents and to work on the time with the documents. If there were legitimate reasons that something took inordinately long, then we would certainly be willing to work with them on that.
interrogatories that were concerned prior to the ruling on the motion to dismiss. Do you have any concerns about holding off on interrogatories also if you’re going to hold off on the depositions?
concern is that it had been my intent in regard to inter— rogatories, to ask them interrogatories that would have led me to understanding how their documents were set up so that I would not miss documents that I wanted.
documents, if I can’t do my interrogatories until downstream, then that would be all right. I would start with the doc— uments, but then when I send my interrogatories and I find out
43 that there’s like other rooms in this many room house of documents, that I didn’t know existed, then I want to be able to go back and get those documents.
before I hear from the response of Mr. Rogers, if he wishes to make one, the court is going to take a five minute recess right now. I’m going to ask that both parties, right now, resolve to me – Mr. Rogers, I’ll let you report it to me in Your response right now – as to what’s left for me to dis— cuss. If the government is willing to agree to not depose any witnesses for four months as she stated, if they’re willing to only send the interrogatories to you explain away certain documents that they’ve already received; tell me if there’s anything else in dispute that we need to resolve.
let me know what I need to rule on right now.
back and then I’ll hear from you, Mr. Rogers, as to what is left to discuss in you response to what’s been brought before the Court.
(Recess taken.)
1886.
44
Honor.
say a few words, particularly from the perspective of the state. He has some concern the District doesn’t have, purely for reasons of the way our two bureaucracies are set up, and I’m going to let him speak for himself after I –
following proposal" I think Your Honor mentioned four months as a working period here –
a date arbitrarily,
willing to do that as a hiatus in which to operate and –
actual date. We’re in March. We could go all of March, all of April, all of May and all of June; July 1, is that a good date?
45
It is a Saturday; how about July 3. We’ll pick a real date—
it July 5th.
invite the United States to West Palm Beach and to any other location where we have documents – but I think almost all of them are in West Palm Beach – we would show them physically how many documents the are and roughly how they’re organized. We’d lead them through the basic systems that we’ve got and , presumably , help them determine what documents they really want.
We’re all being paid by taxpayers here.
where they’re located. We had some discussion among oursel— ves as to whether the copying cost is 15 cents or 20cents. I think we’ll just have to work that out among ourselves. I’m sure there’s a state statute somewhere that’s going to resolve that one way or the other, but we have little loose ends like that; we’ll try to work that out.
46
have no interrogatories served by the United States. There would be no depositions. There would be no requests for Admissions.
right in any way to file those types of requests.
documents, as opposed to witness lists or expert witnesses and exhibits for trial, things like that.
the right to renew the motion which we filed that brought on this proceeding at the end of that four—month period.
And, also, to—as an alternative – agree to sit down to a Rule 14 type meeting at which broader discovery issues would be discussed. But I guess the way I would phrase it, Your Honor, is that the District, and I think the state joins me in this, would be free, explicitly, to re-evaluate the situa— tion. If Judge Hoeveler, for example, says he’ll have a decision on August 15th, we may want not to go to the next level of discovery and ask to stay it.
47 But we’re four months at a time and get to July 5th and see where are. I just want it clear on the record that we may want to renew some or all of the motion we filed.
it.
of what you’ve agreed to?
You Honor. I guess on thing I had concern was the "roughly how they’re organized." I may want more than a rough idea of how they’re organized . I may need a little bit more specific than that.
reiterate that there will be no waiver. If we send the interrogatories later on, and more things come up, there is virtually no waiver of our right to go after those.
said it this way, I just want o make sure; we’re going to set a date for a full Rule 14 meeting at the end of the four months. They want to reserve their right to renew the motion that sits there today. We of course, reserve our right to opposed it.
something that week -- we can do this mutually – and then
48 they will file their motion and I suppose we’ll just set the date off until you hear us, and since you seem to hear us pretty rapidly, that would not be a large problem. We’d have a hearing on the problem immediately.
particular concerns of the State of Florida in this?
of the agricultural intervenor with regard to this agreement?
ment, however, we would like the opportunity to participate in the physical production of the documents. It seems that that would avoid a redundancy down the road.
have not been formally allowed to intervene in this case; is that correct?
make a decision on whether they wish to invite you into the discovery process until the case has been resolved, or the issue’s been resolved, or your intervention. You’re not a party to the case and I’m not about to make a ruling to that
49 effect, though they are aware of your concerns. They should be aware of your interest in the case, and you try to work it out with them.
to production.
do, but I’ll let them decide on that.
Mr. Crowley, did you want say anything?
things
just would request a clarification on, and the other related to the department’s position – the Department of Environmen— tal Regulations’ position.
to the location of the documents and inspect those with us to determine what it wishes copied; was tat – mr. Rogers: That was my understanding of how practi— cally it would work, that –
were inviting and – MS. PONZOLI: But they will point out the specific --
50
offer to go the location where the documents were.
specific documents. They will not point to rooms. I mean they won’t say "In this room you will find", you know.
we’re going to have to deal with – you’re going to have to deal with – on your own.
to memorize this conversation, this agreement.
of stay as moot, in that the parties have agreed at this hearing to the following matters: Now, those matters in the order are going to be those things that you’ve just laid out form me.
scrivener of the memorialization of the agreement, and Mr. Rogers and Mr. Crowley, if you would be aware – Ms. Ponzoli, after you’ve completed, either talk to them either on the phone or show it to them. And gentlemen I need all three of you and Ms. Ponzoli to agreement the wording of the agree— ment.
51
doing the right thing here and I apologize for interrupting, but the second part of what I had to say was relevant to what you’re about to say and I didn’t get a chance to say that, and—
I’m sure you’ll understand. I’m not before the court right now with any authority to agree to an agreed order doing any of this. What I can tell you is that, as an attorney and as a member of the Bar, I think this is a reasonable agreement, and I will certainly recommend to my client that they take not further action to challenge it; that they, instead, devote their efforts to complying with it.
motion to stay discovery that I have the authority on behalf of my agency to agree to entry of an agreed discovery order setting these things our.
little unusual to have an attorney come into court and not have the authority to make—to agree – I’m not faulting you, but I hope the next time we have any discovery hassles, if we have to resolve them before hand, I’m going to need somebody who’s got authority to be able to resolve it on
52 behalf of the agency that they’re appearing before me on.
may be necessary in the future for me to have an actual client here present with me. My understanding was that we were actually here on a limited motion which was to stay discovery rather than a full Rule 14—
before me is a motion to stay discovery and – I think the way it was phrased was to – stay discovery and exempt the action from the Local Rule 14; that was the actual formal motion that was filed before me: to stay discovery and to exempt this action from Local Rule 14.
got no problem with that, but it did appear, after hearing both sides, that there was some movement, some agreement as to certain things and as a fudge, and especially in this kind of a lawsuit, I would like to have the parties talking to each other rather than me having to decide ever little part. And as I understand it, you’ve joined in the motion, have you not, Mr. Crowley?
joinder in the motion to stay, and we were here today on the assumption we were just going to be arguing yes or no on the motion.
53
I think you do too. Certainly you—
adopt as the agreement betwe4en the South Florida Water Management District and the United States government, I’m going to adopt as my order, their agreement. And I’m going to there fore make it my order, so you are then now, then, bound by my order adopting their agreement. Now where in the record will you have agreed to this in anyway, and your position is clear for the record.
and I appreciate that.
confer with Mr. Rogers as to the wording of the order, make sure that all the points that you have stated for me—and let’s go through them a again, just so we ;understand:
July 6, 1989 that the following matters will not be utilized in discovery in this case:
rogatories. There will be no request for admissions. Ms. ponzoli: By any party.
Your Honor.
54
with as to documents only.
defendant has the right to renew their motion to stay discovery, in whole or in part, if necessary. And the government has the right to object to the motion for stay and We will resolve it after that point, if we need to.
the July 5th date that will be scheduled by the parties.
that it is the order of this Court that Rule 10(I)(7) of the Local Rules be complied with on each and every order. That is, every motion that is filed there’ll be a certificate by the party filing the motion that they have conferred with their opposing counsel as to the merits of the motion.
should be able to agree almost exclusively on every discovery matter except for those that are involving major problems relating to interpretations of law or interpretations of your own governmental agency. If that happens, I will be the judge of those problems that you highlight to the court, but I think as far as should you go to West Palm Beach to view discovery, should you be shown an open room or be assisted in what is in the file; should be the kind of matters that are not brought before the court. If they have to be, I’ll deal
55 with them.
depositions and witnesses to be deposed, when we get to that point, I’m going to ask that discovery – that you all work in good faith to comply with all the forms of discovery in this case.
but because of the number of lawyers that are involved, the number of governmental groups that are involved, discovery might become a hassle as things go on. I do want to leave you as much access to me as possible, so we’re going to do it in this way.
issue that has come up, either at a deposition or in viewing documents, or whatever, if you’re all together and you all wish and you all agree for me to resolve something, you may call me in a conference call. I will resolve it on the spot. As long as every party in interest agrees.
includes one of the intervenors, if they are now in the case, if there’s any one party that does not agree to a telephone conference with me; there will not be one, and we’ll do it all in written pleadings with motions, responses, replies, within the ordinary course of business, and I’ll set up
56 hearings as soon as practical after that.
governmental agencies, we’re all paid by the people; let’s keep the costs down in this case as much as possible. Is there anything else further we need to resolve?
way of replay?
and I’m not going to go through them one b one and take issue with them, although we could, by this has been a pretty rough start for a lawsuit, and things have been said to the press and things have been said today with the press present which continue to leave the impression, or try to leave the impression, that there art two governmental agen— cies who aren’t properly concerned about the Everglades.
Lethinen that four plus acres of valuable wetlands – I forget how exactly he put it, are being destroyed everyday.
document other than in an unverified assertion of counsel in one of the latest replies.
law enforcement officer has a number of things he can do, including calling EPA and relying on the clean Water Ace, the
57 emergency provisions. He can bring a preliminary injunction motion in this proceeding.
conferences were going on and were wondering when we were going to get served with a complaint, there was a two—week period between the filing of his paper and our getting served --and I watched Mr. Lethinen on Cable New Network giving a lengthy interview about this case before my client was afforded the courtesy of really knowing what had been filed in court. I think he had been told what the complaint was all about.
roughly 60 acres that could have been save just in the time span of this lawsuit by filing it and serving it on the same day.
think the parties got to lower the level of hyperbole in this case.
here, proper representation; I’d like to just quote – and I won’t take more than a minute – We’ve had a lot of lawyers talking – I’d like to just refer to the affidavit of Dick Slyfield, this is a real public servant. He has been the director of the Operations Division of the South Florida Water Management Distrigct since 1971.
58
flood control that they’re creating artificial intelligence to try to recreate his brain so that we know when we have a flood over Tampa, or a rainstorm over Tampa, and we know when we have certain wind on Lake Okeechobee how we adjust the structures and the amount of water. He is a very dedi-- cated public servant.
Corps. and the District:
authority as to how and when that water is moved throughout the project. The Corps owns operates and maintains a portion of the project, including the lake containment dikes around Lake Okeechobee, structures governing the lake principal outlets to the Calasahochee (phonetic) river and the St. Lucie canal and the may control culverts that penet- rate the lake dikes around the lake.
S10, S11 and S12, which are spillways regulating the water movement from the water conservation in area number one, to water conservation are number two, and thence to the water concentration number three, and thence to the Everglades National Park.
primary means by which the project moves water from the
59 Everglades agricultural area into the water conservation areas. And from the conservation areas into the park.
ring as the United States says, they can go to the Corps and they can say to the Corps, dramatically change you r practices and tell the District to change their practices.
for them to get on the phone with their alleged client and things can change over night.
worried about flood control may not like it, but let’s not beat around the bush as to who can control what here. If the United States Attorney represents the Corps, a lot can be don by four o’clock today with a few phone calls. And we’ll make these points a lot more in detail and at greater length before Judge Hoeveler, but I just want to leave the point that my client is extremely concerned about the environment of the Everglades, water conservation areas, and we are not going to let people continue to say that we’ve been dragging our feet and we are the culprits in this, because that is just not true. We have people up there that are working very long hours actually putting numbers down on paper to control the very discharges that the United States is worried about.
Ms. Ponzoli, could I have this order by – today is Tuesday – by the end of working day on Thursday, after tomorrow?
reach an agreement on the (unintelligible).
Court’s in recess. Thank you. (Whereupon the hearing was concluded.)
The forgoing pages, numbered 1 through and including 60, are true transcription of the electronic recording made on tape 89FX-33 in the above-stated matter.
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