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UNITED STATES DISTRICT COURT
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| UNITED STATES OF AMERICA, et al,
Plaintiff, SOUTH FLORIDA WATER MANAGEMENT Defendants. |
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| TRANSCRIPT OF HEARING PROCEEDINGS
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APPEARANCES:
2
Reported By:
on United States versus South Florida Water Management, 88-1886, For those who are going to speak, announce their appearances, please.
with Angel Cortinas representing the Miccosukee Tribe of Indians of Florida.
Keith Saxe and Lisa Hogan representing the federal interests.
Popham & Haik on behalf of the South Florida Water Management District.
Green for the Western Palm Beach County Form Bureau, K.W.B. Farms and Roth Farms.
environmental intervenors.
the United States Sugar Corporation.
the Florida Sugar Cane League.
4 think has been disposed of by the Passage of time and the litigation, and that is the certiorari to the Supreme Court, I note from the newspapers, at least.
been denied, and so the case continues.
conference in any way that you folks would like to proceed. Who would like to speak first?
prepared, if you would like.
Your Honor,
You are the plaintiffs, so why don't you proceed, Then we will hear from the others and Mr. Smith.
the possibility of establishing a briefing schedule as a result of this, following this status conference on issues arising from the remand from the circuit.
of the Everglades Forever Act. I think the Court and everyone here knows for its part the federal government is enthusiastic about that act, and the additional benefits that it brings to overall Everglades restoration,
5
government parties and also talking with the Miccosukee Tribe about what changes to the existing decree might be appropriate to bring it into conformity with the new act.
schedule in which the United States or the government parties, anyone supporting these proposed changes, might bring them before the Court in we would suggest 30 days; file the proposed changes and arguments in support of them; allow 20 days or some such time following that time for those who want to comment or opposed to do that and a similar time to reply after that.
proceeding, this conference that we've been having discussions for some time, of course, with the District and the state.
not been worked out yet and which we haven't discussed with the Miccosukee's, which is our obligation, of course. That I raise here only because we hope to make that part of the proposed changes and our time to try and reach agreement on it and get the Miccosukees input before we make a final determination as to the federal position. That may throw a monkey wrench into that timing; not one we wish to propose, and it could be that the Miccosukees, and I am sure Mr.
6 Lehtinen may have something to say about it, are certain enough of their position on the proposal that we are making that they can say that they don't need further review or that they can do it very quickly.
that one potential cavaet in the scheduling problem, we hove no control over, we would suggest a briefing schedule which begins something like 30 days from this time.
briefed?
the original consent decree which would bring it into conformity with the Everglades Forever Act, and we've tried to keep those to an absolute in maximum. They would be, the changes incorporating the technical plan, which put real simply, is increased size of STA's so that the engineering project handles and cleans up more water going into the Everglades.
doing all of that, and that understandably is a concern to many, but we think that other things that have gone on in the meantime and the things that were necessary to be done under the original consent decree, the administrative process in the state, for example, have set back those time schedules, in any event.
7
I don't know that it was possible to avoid it. In any case, those are the two major changes, time schedules and the engineering project which is a bigger and better thing, in our view.
minor changes. We would argue I think in our briefs why they are appropriate and why they should be permitted by the Court.
counsel for the Miccosukees.
Mr. Cortinas and said, "What was the last comment?" He said, "That's you."
very clear, and it raises some very distinct legal issues. The Miccosukee Tribe, as you know, has a pending motion to enforce the settlement agreement.
our presentation -- we think, actually, the other side would probably admit it. In fact, they virtually just did admit places that they are either breaching or anticipated breaching because, factually speaking, what they call
8
changes, we call breaches.
seeking changes because they are breaches. Grammatically, that is what is happening, They are probably seeking the changes just for the reason that the Miccosukee Tribe has filed a motion to enforce the settlement agreement.
come in and seek changes is, in essence, their admission that our motion is well placed; that they are in breach of the settlement agreement in various places, and to avoid the characterization of being in breach, they will move that there be changes.
breached. It is outlined briefly elsewhere, and I don't think factually today this is not an evidentiary hearing on the breaches. We seek that. We seek the opportunity to show the breaches that in many instances they are not force ma jeur breaches they are not of necessity breaches.
cases they are carefully planned out breaches, and so forth, but all of that is a factual matter. That is what we seek the opportunity to show in a few instances where they could not meet the settlement agreement by virtue you of necessity or true force ma jeur the Tribe recognizes that, but we do not accept the fact that in many or the overwhelming
9 instances that that is the circumstance.
the settlement agreement. The Tribe, as you will recall it, was an intervenor. It waived its opportunity to continue the lawsuit in return for a memorandum of agreement that provides that the Tribe has standing to enforce the settlement agreement and an actual court order which specifically refers to the right of the Tribe to enforce the settlement agreement.
Tribe chose to not go forward, as perhaps other intervenors could have, but who did not become parties to the settlement agreement.
right to try to show to the Court where that settlement agreement has been breached along the way.
this courtroom alluded to or argued that that memorandum of agreement was unenforceable. I don't think they make that case again so I won't go through the litany of why we think that M.O.A. not only is it signed by the government, but that it is enforceable because Your Honor I think indicated to them by entering an order that the M.O.A. was an enforceable document.
10 enforce it, and so forth. Likewise, I don't know that they will challenge the standing of the Tribe to bring that motion. They did not make any challenges to that effect here today, so I will skip references to that.
the Court that substantial material parts of the settlement agreement have been breached and that they should be enforced.
the Court cannot reach back in life and enforce something that has not been met, but the Court certainly has the jurisdiction to enforce it where practical; appoint a special master as needed to enforce it in the future, and certainly we believe is obligated, when the government comes this with an admission that we have breached the agreement here and there, and so forth, to take testimony regarding what the next fastest available dates would be; what the next best remedy would be.
this settlement agreement must be conformed to the Everglades Forever Act. The Everglades Forever Act, as the government perhaps would admit or seems to I think implicitly admit to the Court, was an activity undertaken by the federal government and the state government, having excluded other people, such as the Tribe and others, to get
11
the state legislature to pass a law that would void the settlement agreement. They have no authority to do that.
governor stand in this court, enter into a binding settlement agreement and then change the settlement agreement sua sponte on its own by legislative action.
matter of low, does not do that as a matter of law. Where it is inconsistent with this settlement agreement, it just hangs out there in the statutes of the State of Florida, as did the South Carolina Secession Ordinance for 100 years after the Civil War. They didn't repeal it. It stayed on their books, but it doesn't hove any affect in federal court.
instrument which Parties in this court can cite for some evidentiary value. We passed the act, cis they will say, to get a funding mechanism to allow us to go forward. That's really a factual question.
settlement agreement, which they have had a year to file and haven't done so, and as I say, probably would not have done so.
the Tribe has finally said after a year and ten months of
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the Tribe has finally said after a year and ten months of this mediation we are obligated to do the condition precedent in the M.O.A. which we have done.
enforce the settlement agreement," and now have a year they say, "Well, let's conform to the EFA.
Court should undertake a proceeding with some deadlines, with some briefing schedules, and so forth, but it would be a proceeding to inquire into breaches and enforcement of the existing settlement agreement.
Honor's order, changing certain dates of necessity, recognizing certain other approaches that Your Honor finds, as a matter of fact, to be in the public interest and to be as close to enforcing the settlement agreement as the Court can get and as close to the Miccosukee Tribe's motion, which is really a motion to enforce the settlement agreement as much as possible.
Everglades Forever Act happens to be factually the best we can do, not the act, but steps that they propose to Your Honor to do, which happened to conform to the act, then they are free to argue that, but it is a distinctly different legal proceeding.
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settlement what changes you are willing to make in the existing settlement by way of enforcing it.
a special master to keep, to monitor the terms that Your Honor sets down to report back to Your Honor, and so forth, so we don't have this year after year of ambiguity and lack of movement toward the goal.
legislature has no right to simply void a consent agreement that the state entered into. I might add, as well, that there is somewhat of a difficult position legally because they actually maintain under the federal Clean Water Act that the Everglades Forever Act does not, in fact, change the water quality standards of the State of Florida.
Federal Water Pollution Control Act, the Federal Clean Water Act as it us is known, if the State of Florida changes its substantive water quality standards, it has to have notice and a hearing and has to be approved by the EPA.
changed some dates, and so forth, on the way the state is going about building some public works projects, because remember these STA's are just Public work projects.
14 different type; big sludge piles, but they are public works projects paid for with public money, public money assessed in this case through certain tax revenues of the District; general property tax revenues, plus assessments made on those who caused the problems in the Everglades agricultural area, but, nonetheless, a public works project.
provisions any way it wishes, but it cannot void its underlying standard. So when the government alludes to enforcing or conforming to the EFA, they are just wrong.
is no discharge permitted in Florida which causes an imbalance of natural equatic flora and fauna. That law remains the same.
works projects may change. They made a commitment to it. They ought to prove to Your Honor that they can't do any better, but in no way does the settlement have to conform to the EFA, and certain allusions made in their pleadings, although not mentioned here at the podium, that somehow the underlying law is changed, that if you didn't give the Miccosukee Tribe what it wanted, if the Miccosukee Tribe did not concur in an amended settlement, that they could not go forward, anyway, because the law of the State of Florida is no longer the same, that's just incorrect, or if that is 15 their position, we need to have them say it in this court because that's not what they are saying in other forums.
We don't need new certification. We didn't change our water quality standards. It is still no imbalance of flora and fauna."
amended settlements acceptable, or if Your honor chooses not to enforce the existing settlement, this Tribe, at a minimum, would go forward with the litigation.
admitted, actually, I think the issue of preclusion is already there, that discharge is causing an imbalance of flora and fauna, but whether or not that issue has already been solved or precluded is not irrelevant to the fact that the Tribe would go forward on first pleading the issue is already settled, then proving it if it wasn't settled and then seeking the remedy, It has the right to do that.
government parties here is to, in one way or another, convince people that the Everglades Forever Act changed the settlement. That is, it is kind of Just a technical thing that they are doing in this court, and that the settlement has to be changed because the underlying legal basis for the lawsuit changed with the EFA.
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proceeding in the nature of enforcement of the existing settlement agreement, recognizing certain inabilities to enforce certain procedures, if there is force ma jeur, but enforcing to the best of the Court's ability with those excuses do not exist, and it is a factual question because the EFA has no law affect on the settlement agreement, and furthermore, it certainly, by the state's own claim to the Environmental Protection Agency, actually did not change the underlying water quality standards, or if it were to change them, it would be illegal.
brought, the pleadings that are already demonstrated in other courts in this building that the state and the EPA both take the position that the Everglades Forever Act did not repeal the no in balance of flora and fauna standard, despite the fact that a lot of other provisions in the law look like it repealed it.
of flora and fauna standard, it is illegal, they have all come back and said, "We didn't repeal it. You kind of misunderstood the EFA. We didn't repeal it. It is still the law."
did attempt to repeal that provision, which they now say
17 they didn't, but we are quite convinced in May of last year they were hoping they did, but if they did repeal that provision, then we will just win hands down in other forums.
just go forward, enforce the Everglades settlement. And, incidentally, even if they did try to repeal it, it doesn't have any affect on you because they can't enter into an agreement in this court and then use alleged sovereign powers to just void the agreement.
some briefing schedules, briefings of anything Your Honor would like; pleadings which show the breaches and the opportunities to cross examine.
suggestion, we want the opportunity to cross examine these people because we've never had that chance. When they say the Everglades Forever Act does this, and this is what had to be done, we want to know the hotel rooms they met in Washington.
know who cut the deal. We want to know why that provision is there. We want to know why you think it is necessary. And we would also like them to explain the public testimony in the legislature of the lieutenant governor that said, "If this act doesn't pass", Lieutenant Governor McKay said to
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the Senate Rules Committee, with Chairman Cypress testifying the same day, "If this act doesn't pass, He cannot enforce water quality standards by precluding the discharge at the farms."
farmers out of business?" The lieutenant governor said, "No, it would not." The senator said, "Well, then, why do we even need this act? Why don't we just have you preclude the pollution at the source, at the farm?"
proceedings would drag that out, and so forth. We certainly can do that, and we will preclude the pollution at the farm if this act doesn't pass."
alternatives that this was a political choice. Matters like that, that all would be taken up at a different proceeding at a different time, but it demonstrates why the Tribe needs the opportunity to show that the existing settlement is a good one.
Your Honor can recognize certain deviations from it based on evidentiary materials, but not by authority of the Everglades Forever Act alone.
and they were trying to work this out to achieve some kind
19 of agreement. Did I hear that incorrectly?
the hearsay rule. Yes, I heard that, and we did, and if my recollection was April or May or June -- I am sorry -- ten months ago -- ten months ago, under the memorandum of agreement, He invoked the provision that says the Tribe can enforce the settlement but must first seek to resolve mediation.
July -- I forget. July. Those meetings began in July. Mr. Cortinas has been in them. I have again in them. They have gone 10 months, 9 months.
see no change. We consider them the kinds of matters that we did not, therefore, submit to the Court a January, 1995 statement that they gave to us that was saying, "This is how we want to change the settlement agreement."
don't think the settlement agreement should be changed like that," and there is slightly no progress. It is going nowhere.
to us elsewhere, or actually said in the motion, so it is of record in the court and said in their response that since
the M.O.A. says that the Tribe has to invoke mediation, and the mediation is unsuccessful, when the United States is unsuccessful in the mediation, some phrase using the word "United States," then the Tribe can go to enforce, they imply in the papers that somehow the Tribe can never enforce because as long as the United States has one party to the mediation with us, tells us we think the mediation is not truthful or is fruitful, our declaration that after 10 months of good faith negotiation we are going nowhere, they claim is meaningless.
faith negotiation, that the Tribe is precluded virtually forever from coming in to enforce. So the bottom line is that we have talked to them for ten months, and we see no viable alternative.
January they didn't move to give to this Court. The whole goal, Your Honor, quite frankly, is delay.
go from June until January of '95 when we keep asking them, "Well, this is to mediate breaches of the settlement. This is to get your position on what the settlement, the best you can do on the settlement."
January of '95 they cough up the document. We say, no.
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Nothing else is happening. We file our motion, They haven't yet filed it with the Court.
position, why don't they show it to Your Honor? Why isn't it in front of Your Honor today? They want 30 more days.
as time goes forward, is that the calender year dates will come to pass and they will say, "Force ma jeur. 1997 was yesterday, You can't do anything about doing something by 1997."
That's why we are surprised it takes a year after '94 to get here to '95. They just want the delay because if they can hold these hearings off until January of '96, then they can say, "January of '97 is only 12 months away, Your Honor. There is nothing you can do about January of '97."
impossible for the Court to enforce by going through these legalistic proceedings.
months of engaging in this mediation, that it is fair for us to say the mediation is fruitless and we need Your Honor's assistance to make it happen.
show that the agreement should be enforced and isn't being
22 enforced?
Honor, Paul Nettleton on behalf of the South Florida Water Management District.
strikes me that Mr. Lehtinen appears to be suggesting that he wants to try the political process, which I don't think is appropriate for this Court. But aside from that, I would remind the Court of the Eleventh Circuit's opinion in this case which recognized the passage of the EFA and the potential effect on what we were doing here.
that this Court was to consider the consent decree in light of the passage of the EFA. What we are proposing and what the Federal Government has already proposed to Your Honor we concur with.
affect of the EPA, the EFA as well as the passage of time and the collection of additional data, and so forth and how that's affected the original agreements between the parties and what appropriate changes might be made to the consent decree in light of that.
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are here suggesting that He are going to ask for amendments to the degree is because they filed their motion. Well, that obviously is not correct.
that prompted it was the discussions and the proposed changes that are being discussed among the parties that the Tribe disagrees with.
with the Federal Government for some time since the passage of the EFA concerning this matter. We are not asking for any kind of untoward delay here.
something. We are not asking until 1997 or anything else. We've decided to Provide a fixed date. Whether or not we reach full closeure on all issues or not, we will be prepared to file a joint motion with this court seeking amendments to the degree as we believe are appropriate, in light of the passage of time and the passage of the EFA.
Tribe's motion, we think they have a bit jumped the gun here. They are, in fact, objecting to the proposed changes before we've asked for them, and we will be asking for them.
appropriate to go through what we believe are the
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appropriate changes, in light of the Eleventh Circuit's mandate; allow the Tribe, as well as the agricultural industry and the environmental groups and anybody else who wants to either support or oppose those changes, to then come before Your Honor, raise their objections on the merits or on the procedures, or whatever objections they have; that we then the proceed through the briefing schedule and a hearing be set on the proposed changes that the Federal Government and the state parties will propose.
changes, it would at that time be ripe to determine whether or not the Tribe's motion has been rendered moot by Your Honor's ruling, or at that time it would be appropriate for them to renew their motion based upon your rulings, but we believe at this stage it would be premature to go forward with the question of enforcement when we are seeking to amend the decree within the next 30 days,
same thing, wouldn't we, that Mr. Lehtinen asked for?
procedurally we would be going about it backwards. What we would be doing is determining which dates are appropriate to change or not change, and that is what we intend to argue in our motion essentially.
25
well, Your Honor. As counsel indicated for the Federal Government, most of the question relates to dates and the passage of time.
question of whether the law has changed or whether there is a legal impediment. There has been substantial litigation in the state proceedings, as Your Honor recognized in the consent decree was going to occur.
Your Honor. That lasted for well over two years, where we could never get the SWIM plan or the permit that was contemplated in the original consent decree finally adopted. Because of the pendency of the litigation, it never became final.
and take any property to start constrution of STA's, and so forth, other than through voluntary agreements to sell, which, in fact, did occur, and we've acquired approximately I think in 1994, we have acquired over of ten thousand acres of the property already for the STA's.
delayed through the litigation, and so forth, we are moving as quickly as we can. I am not here to debate Mr. Lehtinen
26 on the facts of whether we could have moved faster or not faster. I think that is something that be addressed in the brief we are proposing, but I would suggest and concur with the Federal Government that the appropriate approach here would be for us to come to the Court and ask for what we believe ore the appropriate changes, and support that with our positions and why we believe they are appropriate and allow the other parties then to either agree or disagree and present the arguments to the Court in that fashion.
the settlement agreement?
plaintiff's groups.
environmental organization intervenors. Our position on this matter is that the time delays in the Everglades Forever Act are not really justified or in the public interest and, therefore, we see the matter of the amendments to the act that changed those deadlines as raising questions of fact, are these really necessary, or ore they a product of the political process?
27 Miccosukees, that that really is an issue that ought to be brought to the forefront. So, we agree with the idea of a briefing schedule. We also concur with the Miccosukees in saying that this is really a situation where the government parties are really not in compliance with the settlement agreement at all at this stage.
the context of an enforcement proceeding with the defense being that we have had some legislative activity. We have had some litigation.
up.
Smith.
to the government, and it was, "What do you think we should be briefing?" I don't believe you got a direct answer to that. That is the matter before us. I think you got an indirect answer from the government, which goes like this: "We should be briefing why under law and under the prior decree of this Court, February of '92, and under the terms of the Court of Appeals opinion in 1991, 1994, why most of the former settlement agreement should survive in a
28 new decree of this Court, despite the fact that it was rejected by the Florida legislature."
matter of law, the prior orders, decrees of this Court, of the Court of Appeals, all of the settlement agreement, the former settlement agreement, should be reinstated by a new decree of this Court, despite the failure of the conditions subsequent that by this Court's order of February, 92 the former settlement was to take effect or not. Of course, it didn't. It didn't take effect.
mandated no result in state law, That should resonate. Rather, it set in motion a process. It is a direct quote from your Your Honor's February, '92 decree.
significant, quoting it at page 1659 of the 1994 decision.
Honor's order, as published in Federal Supplement, "The agreement does no more than set in motion a process.
proceedings to a state administrative forum."
and validate, or to reject and modify the settlement agreement that was then before Your Honor for approval.
29 agreement to that SWIM Plan process, with the aim very forceably expressed by Your Honor, as urged by the state and federal lawyers, that the state agencies should feel entirely free to do their duty as they saw it under the law and the evidence.
they say, because they were frustrated with delay -- we can argue why. At any rate, they went to the 1994 legislature two weeks before our hearing was to begin and asked the legislature to substitute its judgment for that of the SWIM Plan process which we were prepared to go to hearing on.
so-called Everglades Forever Act which the governor signed into the law and Secretary Babbitt celebrated it in almost the same terms as Mr. Reed does here today.
constitutional body this time, not an administrative process, by a constitutional body to the Court's decree.
process, the State of Florida has acted with the full power of its legislative authority. The only question is whether that act is a satisfaction of this Court's judgment,
over. We are here today that Your Honor described in that February, '92 decree where you said, after saying what the
30 state parties, what the state administrative process was going to do, had power to do, and you expressed your fervent hope that those who participated in it would do their duty as they saw it, and then you added, "The United States, having the right to be in this court, has the right to return to this Court if it is not satisfied with its remedies in the administrative process."
advise Your Honor whether the Everglades Forever Act satisfies this litigation and, therefore, ends it, or whether the United States is not satisfied that the Florida legislature itself has taken over dictating the duties of these Florida agencies.
from Your Honor an amended decree which substitutes the EFA entirely for the original and now obsolete settlement agreement, as the complete expression of the state's obligation.
state agencies, the former settlement agreement, a contingent undertaking by the agencies, which not now be validated by process of state law because the legislature cancelled, obliterated the SWIM plant hearing, should be dissolved, or if the United States is not satisfied, then Your Honor has already answered the question of what should
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be taking place here today.
today. If the United States is not satisfied that the EFA is the complete, authentic expression of Florida's obligation in the premises, "The United States retains the right to return to this Court and have the dispute resolved in a federal forum."
However, for any remaining despite to be resolved, it must first be identified. The United States should, therefore, be called on to specify wherein, if at all, it is not entirely satisfied with the Everglades Forever Act and what additional obligation the United States wishes this Court to impose.
fixing of numeric limits on nutrients in the park or refuge or emanating from the EAA, He farmers retain the rights we had before as intervenors to particiapte in this Court's resolution of that dispute, and we would point out to Your Honor that this is no abstract matter.
relating to the fixing of those numeric limits in which the settlement agreement was quite specific in creating obligations on the state agencies, impacting the farmers in which the EFA is conspicuously silent, the legislature
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having declined to impose those duties by Florida law on the Florida agencies.
Committee about which You have heard so much from the Tribe, so prominent in the settlement agreement and the proposed SWIM Plan. An element of the SWIM Plan which was to be tested by the state administrative process is killed by this legislation.
has been no legislation structurally changing the South Florida Water Management District to create a new decision making body in its midst dominated by federal appointees, It has not happened.
settlement agreement to direct the research, monitoring and compliance functions of the District and to absolutely control the determination of the eventual numeric limits on phosphorus for the park and refuge,
opportunity to enfranchise the TOC structurally in the District, and having declined to do so, then the existence of the TOC depends upon Your Honor ordaining its existence.
which does not make the TOC port of the statutory structure of the District, then the United States should now advise
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Your Honor of that and, Your Honor, assuming you have the power to take up such a question, should decide it.
very specific definition of the critical phrase imbalance of natural flora and fauna which relates directly to, if it does not entirely control the fixing of numeric criteria regarding governing nutrients in the Everglades.
SWIM Plan interim and long term limits, and it was to have been tested by evidence and arguments in the Swim Plan proceeding. It was explicitly a part of the SWIM Plan. We were prepared to go to trial on that in exactly the way that Your Honor contemplated, expecting the hearing officer and the District to do their duty exactly as Your Honor urged them to do, and the legislature dealing with the impatient government people says, "We will take it out of the hands of this process. We will decide the matter."
it does not use that very specific definition that was in the former settlement agreement.
of that definition as surviving an event which Your Honor said must occur, if it is to be validated, and which never occurred and which cannot occur because it has been displaced by an act of the legislature which does not in any
34 terms endorse that definition.
vitality as Florida law today, it must do so because Your Honor orders it.
phosphorus load reductions from the EAA to be achieved by 1997, and it specified these interim and long term phosphorus limits for the park and refuge, and that is what these folks are talking about.
Plan contained them explicitly. We were prepared to show that they were wrongly premised. Factually they were wrong. Scientifically they were wrong. The EFA vitiated the process by which we were to be heard, which Your Honor assured us we would be heard.
rules applicable to these Florida agencies, and it didn't say a blessed thing about these interim and long term phosphorus limits. It did not enact those measures.
responsive to its legislature, or ore they to be responsive to the former settlement agreement? If the former settlement agreement has some residual effect upon these agencies, Your Honor, it is not because they agree. They agreed conditionally upon Your Honor's approval, you
35 remember and Your Honor approved conditionally upon it being validated by the SWIM Plan Process, Remember?
I say to you they don't have any authority under the Everglades Forever Act to make any such agreement here today, certainly they don't have that power to make it and exclude us, or even the Tribe, from the process by which that is to be done.
process. So there are other standards and processes in the former settlement agreement which, obviously, were neither adopted in the Swim Plan nor enacted as law by the Florida legislature.
must decide whether it is satisfied with an act that does not ordain, endorse or enact those measures. The legislature's entire approach to this matter was different from that of the former settlement agreement, whereas the former settlement agreement focused exclusively or nearly so on phrosphorus, the legislature took a broader and more balanced approach.
to issues, and I am quoting, "water quality, water quantity, hydro period, invasion of exotic species."
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moderating provisions in Florida water quality standards which can allow farmers to survive in the EAA, but the legislature recognizes that counter-balancing effect, the need to save the products and jobs and economic well being of the area.
the former settlement agreement, modifies others and rejects still others. The United States must, therefore, state under Your Honor's February, 1992 degree, they come back to this Court and state wherein they are not satisfied with the state's response to Your Honor's decree.
You stated what the rules were. The EFA stands in the place of the administrative process, albeit with for greater constitutional authority. And if the United States is dissatisfied with the EFA and wants to add some obligations, then they should come here and state what those additional obligations are.
where they are responsible to Your Honor and wherein they are responsible to the legislature over and above the Everglades Forever Act.
States which sought the EFA and subjected itself to the legislative process and whose Secretary of the Interior
37 publicly pronounced himself well satisfied, wherein they are now dissatisfied.
repudiates what Secretary Babbitt said, that this act was based upon the best science, secured fundings, established a fixed time table for restoration activities, provided for extensive research and imposes a regulatory program on agricultural discharge.
going back to court or in the hope of achieving a perfect bill down the road would invite castastrophe. That's Bruce Babbitt or his signature and letterhead on April 15, 1994,
know in what respect the United States is unsatisfied or satisfied. If structural changes or substantive regulatory themes are to be imposed on these agencies, independent of existing Florida law, then either they must come from a constitutional adjudication by this court or they are open to challenge by the farmers and the Tribe as well in state processes where such challenges may be entertained.
were to be imposed on the agencies over and above the EFA by order of this Court, or by the coercive effect of litigation in this court, then again I will remind you that the Eleventh Circuit disposed of our case of controversy appeal
38 in a manner that depended entirely on that court saying that Your Honor remitted the decision to firm and final resolution by the state administrative process.
and finally have that effect, we must ask again what standing the United States and by justiciable standards they can be ordained, despite the Tenth Amendment and the federal structure of the Constitution.
EFA, or wherein is the United States not satisfied? That should be the question first addressed.
days, or whatever period, to specify, in paragraphs that are numbered so that we can identify them, what additional obligations they wish to impose on the state agencies over and above what is written in the Everglades Forever Act.
They would like to say what they would like to change and then have one little paragraph at the end that says, "The former settlement agreement in all other respects is validated and endorsed."
are unsatisfied with the EFA you said in 1992, let them come back and specify wherein they are unsatisfied, If we cannot resolve it, then we will have to have some litigation, and
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with it we will have to have a renewed constitutional challenge. Thank you, sir,
Honor, Rick Burgess of Gunster, Yoakley, Valdes-Fauli & Stewart for the United States Sugar Corporation, a member of the Florida Sugar Cane League, and who is a defendant intervenor in this cause.
filed a motion for substitution. I know the time has not passed for response yet, but the signatory parties to the settlement agreement, as we identified in our motion, have no opposition to the substitution, nor did the other farm interests.
hearing on it today, but I wanted to point that out. That's why I am before you on behalf of U.S. Sugar as a member of the League.
we are, nonetheless, an interested person in the proceeding, and we would join in the request that a comprehensive briefing schedule be established for the purpose of responding to the remand from the Eleventh Circuit.
opinion and the settlement agreement, in light of the
passage of the EFA, which passed during the pendency of the appeal. Our request is predicated on the fact is Your Honor will recall that the Eleventh Circuit's opinion and, indeed, your memorandum opinion recognized the right of the form interests to participate in the case, to the extent that your order numerically interpreted the narrative water quality standards of the State of Florida.
didn't do that. Instead, as Mr. Smith mentioned, it turned that process back to the state administrative process. We agree with Mr. Smith that the legislation, the EFA was, in fact, the authentic state response to the process which this Court mandated, and that the EFA, therefore, takes the place of the settlement agreement, or at a very minimum, requires its substantial modification or revision.
States will argue that the EFA was not that response, then United States Sugar would like the opportunity to be heard on that point.
and others similarly situated, EEA land holders, to pay a minimum payment of $25.00 per acre. In U. S. Sugar's case, with over 100,000 acres in production subject to the tax, we are talking in excess of 3 million dollars a year. So, financially, United States Sugar is a stake holder in the
41 EFA.
that the settling parties might file interpreting the obligation of United States Sugar, under the EFA we would like the opportunity to respond.
the Florida Sugar Cane League. I really have nothing more to add to the substance of what has been argued before the Court, but I was asked to appear here today to confirm that the League has consented to the substitution of United States Sugar.
further from the federal government in response because, of course, I am getting mixed messages.
there has been a lot of suggestion by the others that we are somehow acting already contrary to this decree in the way we are proceeding with the present issue.
requires us, the signatory parties to the stipulation, to get together, try to work out our differences before coming
42 back to the Court.
thought we were doing. Others seem to be rushing in here with their different ideas of where we should be going and what orders. That's the orders set out by the decree.
seems to me we might as will stick with it as long as we agreed to it back then.
Mr. Lehtinen's argument, I may have misstated something. We were talking about going back to the Tribe with, under our memo of agreement, our memorandum of agreement with them, which requires us to consult with the Tribe before making final decisions.
something else, and I am not sure what it was, but that's all we were talking about. We have gone back to them with the first round, those things that we thought we had about reached a decision on and wanted to make sure that they had their opportunity to come in, and then this one additional problem came up which we mentioned in our papers which we hoped to reach agreement on.
will just submit changes that we have reached agreement on, but if it looks like there is room for agreement on that, we
43
will go back to the Tribe for their opportunity to comment on that one thing. Simply, the memo of agreement requirement on our part, and the Tribe may have taken that to be something more substantive then was intended.
Mr. Smith has said, says that the act of the legislature, the EFA is all very nice, but it really doesn't have a whole lot to do with the settlement agreement. It doesn't set aside the agreement.
change it. The agreement is the agreement. And to the extent that the EFA does not conform to the agreement, the agreement ought to be enforced.
endorsed and consented to by both the state officials and the Federal Government and approved and, in fact, lauded by some, is, in fact, the culmination of what I ordered back in '92, and that is where we are.
the extent that any changes are made, he wants the chance to litigate them. Those two positions are somewhat diverse,
Your Honor. I think those are both very ligitmate legal
44
arguments. When we come back to this argument on argument day, they will be made. I perfectly made in this briefing schedule that we suggested, I think we are in the middle.
the additional things that have been mentioned here. I think it is better for the Everglades. The only bad thing is that is that it delays things, but I am afraid things are delayed, like it or not, in any case,
certain they will be by the sugar people when they respond to our motion for amendments to this thing, and certainly by the Miccosukees, too, saying it should not be amended at all.
that we like having a consent decree which makes the whole thing more enforceable to us. There was state law before the Everglades Forever Act, of course. That is what this Court and the state administrative process were going to apply, and yet we had to come to court to get it enforced.
is a state law which puts requirments on people, that we should be satisfied with that and not take advantage of a decree that we already have.
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this new act, we would like to bring that into the decree so we have it enforceable by Your Honor, also. It may be a little greedy on our part, but it is going to help clean up the Everglades we hope eventually.
Everglades Forever Act under the umbrella of this Court and its decree, we are in a stronger position, and we will argue for that position.
both worlds has been accomplished in the Everglades Forever Act.
that.
scheduling, your briefing schedule to be put into operation,
respect the Tribe's position, it has a pending motion, also, it seems to me that the District was right when it said that it only makes sense in the efficiency sense to deal with it
46
after we've decided what the existing decree is.
with their motion, but, yes, we would suggest that.
any further?
could, I think that's the strange situation. The government can actually say we ought to undertake this after we decide what the existing decree is.
is. It is signed. It is there. It hasn't been changed, and that's the existing decree. If they want to move to substitute, which they are obviously going to do, they need to make that motion at some time.
material breaches; failure to do actual things that the Tribe relied on; failure to begin the research. It clearly could have been begun. It didn't take an administrative hearing officer or anything else.
that a record that shows in the administrative proceedings where the judge turns to me and says, "Mr. Lehtinen, you are the only people who don't want to delay these proceedings.
47
You are the only persons who want me to try it. The feds want to delay it. The state wants to delay it. The Water Management District wants to delay it. How come You are the only guys who want to go forward?"
why the administrative proceedings are bogus excuses for not going forward because those guys are always there telling the judge, "Don't go forward," but it is even more simple than that.
in control of the parties, not the hearing officers. It is the obligation to begin to enforce the clause that says pollution from the Western Basin unrelated to EEA pollution.
pollution which is dumped directly on the Miccosukee Tribe. So Your Honor framed it correctly. We believe that the Everglades Forever Act that the state legislature cannot void agreements that the state enters into.
the State of Florida or anywhere in the world will ever sign a deal with Florida if they implicitly reserve the right to break the deal by changing the law.
promise, come back and say, "But we tricked you because our own legislature can void that agreement and substitute for
48
it."
kind of begs some questions. The deal that you speak of was between the state government and the federal government, and they cooperated in the breach as any two contracting parties have a right to do.
the litigation. You have become a plaintiff by permission of the Court, which means in some sense you have become perhaps it fair to say a party to that contract.
question, isn't it?
could, as contracting parties, join together had they not, under their trust obligation and all the other legal duties to the indian tribe, had they not clearly and explicitly induced the Tribe to waive rights and, therefore, gave the Tribe the standing,
subject, of course, to the interests of the farming communities to whatever standing they had, then they could jointly come to you and probably convince you to change it, but it was quite clear that the Tribe gave up substantial remedies, substantial rights.
49
up, and under the trust doctrine the United States Government owes this duty to them. So, they essentially gave that up. Of course, that is relevant here. It is relevant in other litigation, as well, but fundamentally insofar as the state legislature itself has no authority to breach agreements that the state has entered into, the EFA stands for the proposition that we, the Tribe, moved to enforce the agreement, have standing to do so and then those parties should come in and say, "For the following reasons we concurred in the state legislation. We believed that it was essential," as Mr. Guest said that they will argue as they did there, that these deadlines have to be put off, and so forth.
show that is simply not true. In some cases we would accede to force ma jeur or necessity in that circumstance, but the quite clear distinction is between does the EFA, as a matter of law, come in and supercede, or does Your Honor simply hold a hearing on our motion to enforce and recognize certain enforcement factors as you told the hearing?
will just settle for this comment, so to speak, I believe that as I phrase it, of course, phrasing it most favorable to my client, that the legislature cannot breach deals that the state entered into.
50
probably recognized by most parties, I believe that's why they are trying to enter a back door method of breaching it with references so that Your Honor's order only started a process.
obtaining certain standards and certain things that it was to do under those standards, like build this, or do that, and so forth. It might require administrative action.
process, but it certainly did not in any sense recognize, or would it have been signed by anyone had it purported to recognize a state legislative right to simply void that agreement and substitute for it.
the state administrative processes failed, be it good faith reasons or bad faith collusive reasons, for whatever reason, the fact is that the decree made it clear, the settlement agreement in the Court's order that there were certain standards that had to be met.
causes an imbalance of flora and fauna. The state was to
51 use any methods that it had. The primary method that Your Honor can enforce, if no other method is available, is do what they do to me or anybody else in this courtroom if I made a discharge causing an imbalance of flora and fauna.
whole struggle is by state and federal parties to avoid enforcing the law of the State of Florida. I may say that some of us regret joining in that process and agreeing that if you want to go through a bunch of public works projects so you don't have to enforce your law, go ahead and try it.
will enforce your law.
public works projects aren't on schedule, they don't work, etc, etc, etc, the main law is still there. These discharges that cause an imbalance of flora and fauna should not be occurring.
could change that standard under The Clean Water Act. It didn't change that standard in The Clean Water Act, or if it did, it is in violation of The Clean Water Act.
change the no imbalance of flora and fauna standard, so at this point we would have to word it in the alternative, but it appears that in other proceedings, it is going to be
52
established, and clearly it already has been, that that they did not repeal the imbalance of the flora and fauna in state law and accordingly, Your Honor should hold these hearings, recognize the reality as necessary, but not as a matter of authority of the state legislature; just kick back dates and grant exemptions and things like this that were not warranted under the federal or state law.
Smith, or gentlemen?
Honor's February, 92 decree. Mr. Lehtinen is talking about the lawsuit that I just don't recognize.
Tribe. They were exercising that trust obligation when they signed this agreement."
effect unless Your Honor approved it, and Your Honor says it is not going to have any effect unless it is put into effect, to the extent it is required to be in the SWIM Plan, and all these things they are talking about were required to be in the Swim Plan and were in the SWIM Plan, unless it is approved, and here is what Your Honor says:
result in a finding inconsistent with that contemplated by the agreement, the state agencies, consonant with their
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obligations under the state law, must respect that result. The agencies are bound, in the sense that if the outcome of the administrative process precludes them from undertaking final action consistent with the terms of the agreement, if the settling parties are unable to agree to a modification of the agreement, after resort to dispute resolution or upon a claim of force ma jeur, the United States retains the right to return to this Court and have the dispute resolved in a federal forum."
this dispute must be resolved. The farmers were to have their say in the administrative process. We either had our say or we were presumed to have had our say before the constitutional legislature of the State of Florida.
complete response to Your Honor's decree, or we have awakened the litigation again with all the questions that come with it.
proceed is for Your Honor to instruct the United States to file a paper saying what obligations from the former settlement agreement they wish to have ordained by Your Honor, in addition to the EFA, and then we can brief the question of whether Your Honor can or should do that and what kind of process should be engaged to resolve that.
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Thank You.
well covered it, unless there is something else somebody else wants to say.
briefing schedule. I am going to tell you what the briefing schedule is going to cover in that order. You will hear from me I hope no later than Monday. With that, counsel, I thank you very much for being here. We will be in recess.
C E R T I F I C A T E
UNITED STATES OF AMERICA, SOUTHERN DISTRICT OF FLORIDA:
United States District Court, Southern District of Florida, do hereby certify that the foregoing pages constitute a true transcript of proceedings had before the said Court, held in the City of Miami, Florida, in the matter therein stated.
this 22nd day of May, 1995.
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