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Litigation
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UNITED STATES DISTRICT COURT
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| UNITED STATES OF AMERICA,
vs. SOUTH FLORIDA WATER MANAGEMENT
and WESTERN PALM BEACH COUNTY
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| MIAMI, FLORIDA May 21, 1991 |
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| TRANSCRIPT OF HEARING PROCEEDINGS |
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APPEARANCES:
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Water Management District, et al. Counsel, please note your appearances.
United States Attorney, and the others will announce their appearances.
Florida Department of Environmental Regulation.
Chairman of the Governing Board of the South Florida Water Management District.
Governor Lawton Chiles. Your Honor, I would request that the court admit Governor Lawton Chiles pro hac vice to make a brief introductory argument on our motion for a temporary stay.
behalf of Conservation intervenors.
Department of Justice also for the United States. THE COURT: Thank You
4 MR. COOPER: Your Honor, Albert Cooper, Assistant District Counsel to the South Florida Water Management District. I am also making a request to appear pro hac vice. I do have a pending application to enter an appearance.
City of Belle Glade and Clewiston.
please the Court, for the record, I am Lawton Chiles, the Governor of the State of Florida. I am an attorney admitted to the practice of law in Florida in the federal courts.
a brief introductory argument on the joint motion for stay filed by the Department of Environmental Regulation in the South Florida Water Management District.
court’s permission for Mr. Alan Milledge, Chairman of the Governing Board of the South Florida Management District to address the court.
for the Department of Environmental Regulation, the Water Management District to argue the detailed facts of the case, on February 20, 1991, the parties to this case, with the
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assistance of this court, agreed to a 60 day stay.
today, that much more could be accomplished if the state and the federal governments put their head together, utilize their respective scientific, administrative and legal talents to work out a joint solution to these problems, instead of directing their energies and talents at great expense to the taxpayers to the burdens of protracted litigation.
this court in arranging an agreement for a 60 day cease fire in the litigation, we are able to accomplish a level of progress that I believe is unparelled in terms of how much the has been accomplished for the Everglades in such a short time.
entry of the stay, the Florida Legislature has passed a landmark piece of legislation in the form of the Marjorie Stone & Douglas Everglades Protection Act of 1991 which provides a comprehensive and definitive legislative mandate and blueprint for solving the water quality problems of the Everglades.
Water Utility District. It also allows for condemnation, unlimited condemnation powers. I had the privilege of
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signing this act into law in the presence of Florida’s First Lady of the Everglades on May 7 of 1991.
Board of the South Florida Water Management District. I am confident that all members are committed to the protection and restoration of the Everglades ecosystem.
neutrient concentrations for in-flows through Everglades National Park and the Loxahatchee National Wildlife Refuge has been reached with the Everglades National Park representatives, close to being reached with Loxahatchee Wildlife Refuge representatives.
convened bringing together the most knowledgeable experts in the state and the nation for the purpose of reaching consensus on immediate and long term steps that have to be taken to save the Everglades.
its previous position and has agreed to abide by our request that it apply for state permits for the structures that it operates to deliver water through the Everglades ecosystem.
affirmative decision to be part of the solution, rather that a part of the problem.
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technical issues remaining in the lawsuit. The principal area that we have not yet resolved is how to deal with the due process rights guaranteed to third parties by state and federal law, in the context of a settlement agreement, approved and enforced by the federal court. We are prepared to negotiate further on that issue.
absolutely committed in finishing the task of saving the Everglades, and I am confidant that we have demonstrated beyond any shadow of a doubt that the state and federal governments can and should continue to work cooperatively as partners to save our precious Everglades resource.
of our efforts are to finalize the processing of permits for the pumps and other structures operated by the South Florida Water Management District that move water through and into the Everglades ecosystem with the appropriate conditions that will insure the quality of water passing through the structures and protect the areas receiving the water.
applications for the pumps and other structures operated by the Corp of Engineers as soon as such applications are received to achieve the objectives I have previously mentioned.
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program for the Everglades agricultural area, including all the necessary permitting and compliance measures and interpretation of best management practices for farms in the Everglades agricultural area.
Plan and to promulgate all rules and regulations necessary for implementation of the plan to begin initial construction of water management areas, as well as to continue the planning, design and land acquisition necessary for future construction of additional water management areas in order to achieve and maintain water quality standards in neutrient limitations.
for a schedule with several interim deadlines. If at some point in the future the United States believes that we failed substantially to meet any of the deadlines in the scheduling permit, without good cause, it can come back before the court to request that that stay be set aside.
demonstrated an abundance of good faith, as well as competence and determination in solving the problems of Everglades pollution since I took office.
further stay. I will also mention to the court that at the time that I took office, representing the South Florida
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Management District was a very competent maybe firm of New York lawyers who were pretty good litigators and they had billed the State of Florida a tremendous sum of money over a tremendous number of years and loved to litigate.
that we terminate some of the litigation and not have to go through all of the depositions and not go through that expense, but spend our time and effort towards trying to solve this lawsuit.
forth, but we think to allow the parties the opportunity to work out their remaining legal and technical differences, we need a stay. These differences, in comparison to the progress we have made, through the cooperative efforts and opportunities that lie before us I think are relatively minor at this stage.
statement from Alan Milledge who will then ask counsel for the Department And Water Management District to carry on the with the more detailed legal and factual issues.
court. I would be happy to try to answer any questions that you might have.
am pleased that you took the time and come and tell us what
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you felt we ought to do.
requested a stay through next July. We would certainly be willing, if the court feels that that stay is too long, to go with whatever the court would feel.
process; and as I say, we are ready to abide by any milestones that we should along that. I thank the court.
present some introductory remarks on behalf of the South Florida Management District. As you already heard, I am now the Chairman of the Water Management District.
commitment of the present governing board to Everglades protection and restoration. Just two months ago I was on ordinary attorney plying his trade. I had the good fortune to be a part of Governor Chiles campaign, and in particular to help draft the environmental papers.
restoration. It represented a strong commitment to Everglades restoration and, indeed, I think it was a big factor in the campaign and, indeed, in his election.
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7th to the governing board, along with 4 others, a governing board of nine.
that elected chairman. The settlement negotiations were on going at that time in a short time after that, we, those of us with the federal government and the DER and the rest of the state system agreed on both interim standards, pollution standards to be achieved for the park and the refuge and interim dates, 1997, and we agreed on the long term or permanent dates, the year 2002, roughly a 5 year horizon and a 10 year horizon, These dates are contained in the offer of judgment.
our appointment, we began to pursue a legislative program. That is, if we are going to be required to undertake this massive job of Everglades clean up, we needed to have clearly the power to acquire the necessary lands and to be able to assess the agricultural interests their fair share for that, and so we also needed a special regulatory authority to deal with this somewhat special are of concern.
legislative package through because half the legislative
12 session was really already over, but in April we moved our bill through the House, in the Senate. It was passed by both Houses in April and signed, as the Governor said, on May 7th.
board, we were given sweeping new powers. It is sweeping legislation because it establishes a huge public works program. Some say 100 million dollars. Some say as much as 4 hundred million dollars.
the cost of the land and the construction without any caps. That is our acreage was not capped that we can acquire, nor the amount of money we can assess the agricultural interests.
discussions progressed, but the stay ran out on April 6th.
District had agreed with the federal agencies on pollution goals and achievement dates, and we had committed to obtain them with whatever acreage and dollars were required.
depositions, the first of which were scheduled for May 6th, and on it goes.
costly and time consuming and it has been very angry
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litigation. All lawyers who are a part of that tableau of anger no longer represent us. It is not possible to build programs and solutions while the agency is consumed in litigation.
can get on with Everglades clean up. We have opted to build and to move forward. Our first contract for construction of levies around one of the new neutrient removal areas has been sent out for bid.
8th of this year. This is the documentation here and the first construction of the clean up areas will commence approximately the first week of July.
application for the entire interim removal system designed to achieve the agreed interim standards. By July 1st of this year, in 6 weeks we will have the revised Swim Plan, revised to include the expanded neutrient removal system, and also by July 1st our draft of the agricultural area regulatory plans will be submitted.
the legislature passed the legislation, I ordered our staff to create the most rapid schedules, Your Honor, for the various chores.
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neutrient removal areas, the permits, the compleation of the Swim plan, the creation of the regulatory program for the agricultural areas.
rapid movement of this process. I commit to you that we will move this part of the process as rapidly as we move the legislation.
it, we lose 40 employees to the litigation. Those who are scheduled to be deposed and more will be scheduled for sure.
and, of course, it is the technical staff that we must rely on to rapidly move forward with Everglades clean up. Ironically, if you entered an order of any kind, mandatory injunction or any kind of order of any type, this work could not be done faster then we are presently moving.
administration is committed. We have already proved that. So we ask you to help us get the job done for our children and our grand children.
Milledge. That program that you are holding in your hand, do we have a copy of that?
offer of settlement. This is a much more detailed version
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of it.
you can get us a copy of it, I would appreciate it.
Florida Department of Environmental Regulation.
we gave peace a chance a while ago and in that 60 day stay, more was accomplished then it the two and a half years of litigation in this case.
previous 25 years to save the Everglades. Governor Chiles and Mr. Milledge’s appearance here and Secretary Carol Browner is also present here. Mr. Timer Powell, who is the new Executive Director of the Water Management District are also present here.
our agencies to make sure that we get a good Swim plan that effectively saves the Everglades.
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detailed in an 8 page exhibit to our motion for a stay. It sets for the statements of principles, objectives and schedules.
deadlines, and we are asking for a stay throughout the process of -- actually the schedule extends beyond one year. We are asking for a stay through the first year.
interim objectives and deadlines, any one of which if the Water Management District or the department fails to substantially meet, then the United States, of course, can come back to this court and seek to have the stay set aside.
and equitable to grant a stay in recognition of the commitment of the Governor and the Water Management District to save the Everglades.
grant a stay. First and formost of that is the enactment of Margorie Stone & Douglas Protection Act of 1991. That act had a sole single purpose, and that was to facilitate the savings of the Everglades.
that task. I would just like to highlight some of the specific means. That act requires adoption of a Swim Plan.
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It requires a Swim Plan to bring the Everglades water quality in compliance into the state water quality standards.
There has been one hasn’t there?
A draft was submitted to the Department for review, as it must be under 73.456 and it went back to the Water Management District with our comments and then the process was interrupted, partly because of a request of the United States to ask the Water Management District not to adopt the plan pending the appointment of a new majority or new members to the board by the Governor; also, by the agreement of the United States, the Department and the Water Management District to establish a technical team of experts to help determine appropriate interim water quality standards.
the whole process had to be started over, but that is I think an inaccurate belief. The Swim Plan is very large, but the new changes that will be required are not large and by large, to a great degree have already when accomplished by the workings of the joint technical team comprised of experts from the United States and the state agencies.
resubmit the Swim Plan to the state agencies. There are two
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steps of review. The first review under 373.455 requires the district to submit the plan to several state agencies, the Department of Environmental regulation, the Department of Natural Resources, the Department of Agriculture, the Department of Community Affairs and others and actually local governments to have an opportunity to comment on it.
comments and resubmits it under 373.456 Florida Statutes to the Department and for a determination of consistency with state water policy and the state comp plan. This is not going to be lengthy program, as has been suggested in the opposition by the United States.
be, the revised Swim Plan will be submitted to the various state agencies for review under that process I just outlined.
state agencies. The agencies have 60 days in which to submit their comments. The second process that comes solely to DER for review for state water quality consistency, the Department has only 30 days. So we are not talking here about massive review of the Swim Plan.
majority of it and we are not talking about a great deal of time loss in the review process.
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Stone and Douglas Act, I left off by saying that the act requires a Swim Plan to insure that the water quality in the Everglades is in compliance with state water quality standards.
standards for 5 years. It has accomplished that and then, if necessary, a renewal of interim permits for another 5 years to get into compliance with the ultimate water quality standards.
hydro period for the Everglades, and a proper hydro period is very important. It is not just water quality, but you have to have the proper level of water in the ecosystem at the proper times in order to have a healthy ecosystem and the Act requires that that be accomplished.
review and for administrative review and judicial review to protect the rights of third parties. The Act requires the acquisition of land for the water management areas which are the neutrient treatment areas that you heard Mr. Milledge say that the Water Management District and the state are committed to get whatever acreage is necessary.
are only going to produce some 17 thousands acres. That is
an incorrect reading of the state’s position.
eminent domain power granted to them by the Everglades Protection Act and using the funds granted to them by the power to create special taxing districts, if you will, which are called storm water utilities in storm water benefit areas.
shown to us by the best available science at the time and we believe that we are close to an agreement with the scientists of the United States on how to compute that acreage, and that that agreement will be shortly reached.
eminent domain power for the purpose of taking lands from water management areas. The Act requires and authorizes development of the special taxing district that I mentioned, the storm water utilities and the storm water benefit areas.
system for issuing permits to structures that discharge waters into the Everglades ecosystem. The act allows interim permits for 5 years, renewable for another 5 years.
those permits. Ultimately designed with those, that first 5 years or, if necessary, the second 5 years to bring water quality in the Everglades ecosystem up to state water
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quality standards.
District submits its permit application to the Department of Environmental Regulation, that that permit application include a regulatory program, and you heard Mr. Milledge state today that on July 1st they will be submitting to us their proposed regulatory program.
initiate rule making by October 1st, 1991 allowing for a master permit.
District must apply to the Department for its first 5 year interim permit by a deadline of October 1st, 1991.
is all about. The United States comes to this court claiming to be a citizen of Florida bringing a citizens suit to enforce Florida’s environmental laws, to require permits for water control structures in the Everglades agricultural area and to require compliance with state water quality standards.
given to us through the Everglades Protection Act of 1991, how can the Department require the Water Management District to apply for permits before that date and still be consistent with the terms of the Everglades Protection Act,
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or at least it would seem inappropriate for us to do so, given the express terms of the Everglades Protection Act that says they have until October 1st, 1991, to apply for those interim permits.
Management District to require other entities in the Everglades agricultural area to apply or to require new permits or to modify existing permits before April 1st, 1992 or before the district adopts a master permit rule.
provisions of the act that says that such new permits and such modifications should not be undertaken before the April 1st, 1992 deadline or before the time that the Water Management District adopts a master permit rule, whichever occurs first.
rule for some reason or other gets tied up in legal challengws, we still have that April 1st, 1982 back stop that says that at that point we can go forward and require new permits and we can modify existing permits in the Everglades agricultural area.
Douglas Protection Act does nothing more than realine the existing authorities and requirements of the law, authorities that DER and Water Management District have.
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says basically nothing in the Act alters the authority of the Department of Environmental Regulation or the Water Management District to control pollution, but one cannot read that savings clause so broadly as to render meaningless the great majority of the language of the Act, and that I have just highlighted with you.
that the legislature put in there for some obscure reason. They had a purpose. They had an intent. They had a vision of how to solve the Everglades problems and they have instructed the state agencies how to do it and to get on with the jobs and we are going to do that.
to enforce state law. There are no federal law questions in this case. Yet it seeks to ignore some provisions of the state law. In fact, it seeks to ignore most of the provisions of the Marjorie Stone & Douglas Protection Act. It cannot do that and the Department and the Water Management District cannot do that.
be done. The United States has even conceded the issue. If I may quote from their opposition at page 8, they state and I quote, "the new legislation suspends any action regarding the issuance of new permits or modification of old ones for
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specific neutrient limitations in the EAA," meaning the Everglades agricultural area, until April 1st, 1992, or until a master permit is adopted, whichever occurs first."
review because it would be inappropriate to grant the relief that they seek, in view of the provisions of the Marjorie Stone & Douglas Protection Act.
comply or follow the dictates of the deadlines and the trigger dates of the Everglades Protection Act, at this point in time, the first one is occurring on October 1st, 1991, the statutory deadline, it is just completely speculative. It is not right. They are saying that we are not going to do it and it is completely speculative at this time.
saying is that you had some laws in place before that were not observed. How have things changed by the imposition of new laws?
board of the Governing Board of the Managemet District. There is a new executive director of the Water Management District. There is a new secretary of the Department of Environmental Regulation and there is a new statue telling
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us exactly how we are going to solve this problem.
the things that have changed in the 60 day stay and the few days of the extended informal stay after that, and the Governor has committed to the list of further objectives that he stated when he spoke to you, and submit that things have vastly changed and that a stay is certainly most appropriate.
there is still contract claims and nuisance claims pending; therefore, a stay should not be granted. As to nuisance, I would quote to you from the footnote of the Eleventh Circuit Court of Appeals in their decision on an interlocutory appeal in this case.
"the nuisance claim then does not add a substantive count to the United States other claims arising under state law."
this case. There are contract claims, but those contract claims really involved, intricately are involved in how you solve the Everglades problem. I think in the interests of judicial efficiency and equity, that it would be appropriate to stay those claims as well.
comment on mootness. In this case, the Department of
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Environmental Regulation filed a counterclaim against the United States Corp of Engineers because they own and operate several of the water control structures in the Everglades ecosystem.
are operators of all of them because they have power under federal regulations that dictate how they are operated and we think that within the meaning of the Florida statutes they are operators and, therefore, have to require permits.
under oath that the Corp would apply for such permits and the Governor commends them for doing it, reversing any issues of sovereign immunity for another day.
Management District in the United States in its opposition claims the fact that the South Florida Management District has actually applied for permits does not moot the United States claim against the Water Management District and the Department.
"our unfulfilled promise to apply to permits moots our counterclaim," and the Water Management District actual act in making the application for the permits that they brought this suit to compel does not moot their claim against us.
27 goose is sauce for the gander here.
that’s a further grounds for staying this case in accordance with the stay that we have requested.
motion. An abstention to me is an incredibly complex area of the law, but I think abstention, in my view, arises out of the concepts of federalism on which this great country is granted in which there is limitations on how the Federal Government, including federal courts, ought to interfere and impose themselves upon the independence of the various states.
criteria. We have a newly enacted statute that has never been interpreted by atate courts, and I would refer you to I think primarily the case of the Louisiana Power versus Tibadeu at 360 United States 26 in 1959.
and judicial processes that recognizes paramount state interests and involves complex questions of law and I think it meets all of the classical parameters under which a federal court should abstain.
We are asking the court to grant a stay.
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proposed in setting forth in our statement of objectives, goals and principles, and I would like to just quote to you, if I could, from page 6 their opposition, and I quote.
the framework that would be necessary and practicable through application of the defendants’ existing authority to provide effective relief for the park and the refuge."
quote, "The United States has told the defendants consistently that adequate relief for the park and the refuge must," and then they go on and they enumerate 5 essential elements of an adequate remedy and relief.
elements. The first one that they mention and I quote, "Is performance based on standards for the park," meaning the Everglades National Park and refuge, meaning Loxahatchee Refuge in-flows.
the Governor have committed to such standards as set forth in appendix A an B to exhibit B of the motion before the court.
that, in our motion come from the work of the joint technical team comprised of experts from the Department, the United States and the Water Management District. We didn’t
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just conjure these up out of the air. That’s where they came from.
United States enumerated was, and I quote, "that the standards in the park and refuge in flow is to be supported by agressive enforcement measures in the Everglades agricultural area."
Management District and the Governor and Secretary Browner commit to in our motion calls for the adoption of a rule for a Swim Plan by January 17, 1992.
of that by July 1st of this year. The Everglades Protection Act requires the Water Management District permit application that they have to have into my department by October 1st of this year to have a regulatory program aspect in it.
commitment to vigorously and effectively enforce such regulatory programs. So that essential element of the remedy has been accepted and proposed by the Department in the Water Management District.
we needed and I quote, "an expedited time table with mandatory deadlines for implementing specific remedial
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measures in meeting interim and long term standards."
schedule attached to our motion.
says is necessary for an adequate remedy, and I quote "a sceintifically and technologically defensible project, such as the proposed water management areas for supplementing an aggressive EAA regulatory program."
have proposals for beginning the building of the first water management are which is referred to as the ENR Project. You heard Mr. Milledge say that the contract for the construction of the first stage of that has been put out for bid. I forget what he said, whether it was this week or it has already gone out.
and misconstrued our intent, saying that we intend to limit that to 17 thousand acres, and that’s just not our intent. If we didn’t make it clear, we apologize, but that is not our intent.
acreage is necessary, based on the best science available, to compute what acreage is necessary. If we miss it and we need more some time in the future, then we will exercise the eminent domain power and taxing authorities to go out and
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get it and build it.
we are close, our scientists in the Department in the Water Management District and the scientists in the United States and the environmental intervenors are close to agreement on how you compute what scientific formulas you use to compute that acreage that you need.
it is fully incorporated in what we offered to do in and comply with in our own motion.
says is necessary for effective relief, and I quote, "is a realistic and obtainable funding scheme."
1991 gave it to us. It gave us the power to take land by eminent domain, as much as is needed. It gave us the power to raise money for taxing through the storm water utility and through the storm water benefit areas to raise the necessary funds to acquire, build, acquire the land, build the projects and operate the projects. So it is there. It is all there.
United States is, in fact, in our statement of principles, objectives and schedules to which the Department, the Water Management District and the Governor has committed to
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accomplish.
the last 60 day stay, plus the interim stays that have occurred since the informal stays that occurred up until today.
says we should stay on a course of the litigation. We say let’s stay on the course that we were on during the 60 day stay and continue with the remarkable progress that we’ve been able to achieve under that regime.
let the scientists and the engineers and the policy makers proceed with the savings of the Everglades and the development of a Swim Plan that will insure the restoration and the protection of the Everglades.
we pray that the court agree with us and we urgently request the court to rule on our motion today because tomorrow the madness begins again.
simultaneous depositions which are fully staffed by good counsel and is probably going to run into the costs of hundreds of thousands of dollars a month.
Management District has a very brief comment that he would
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like to make.
Assistant District Counsel for the South Florida Management District. I would like to give some practical reasons why the state should be granted, really for the benefit of the audience, who may not be familiar with the with a lot of the legalese.
the right time to do it. You have heard the commitment from the leaders of our state to carry out the mandate of the new legislation and the credibility of the District, DER and our leaders is on the line at this point and they are willing to deliver.
strides of late and Governing Board Chairman Milledge outlined an ambition schedule that lays ahead of the District for the future.
an entire framework is now in place for restoration. The United States Attorney’s Office may argue that the legislation is really fluff, but I would make a prediction that if, in fact, we fail to meet any of the deadlines in the statute, we will be receiving a very large well crafted complaint from the U.S. Attorney’s Office pursuant to that
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legislation. They know is has teeth. I am sure they will use and rightfully so.
at the Everglades summit conference back in February. He said, taking about restoration, "that ultimately we will be designing a car, but right now we have to learn to walk."
really been fashiond into the legislation. It sets out a short-term approach and a long term approach to solving the Everglades problem.
DER will administer and review as well as District rule making by which the District will regulate the Everglades agricultural area.
Milledge gave us an excellent overall review of all the time tables and milestones that have been fleshed out under the Act.
5 year interim permit, it is on a very tight time frame. The board has to review it in less than 3 months. The purpose is to make sure that the District structures are in compliance with the short-term water quality strategy.
requirements, the Act has 4 special elements and the
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application provides that it contain ambiant concentration levels for phosphorus within the entire EEA, proposed interim concentration levels designed to achieved compliance to the maximum extent practicable, strategies for achieving and maintaining compliance with regard to land acquisition, water treatment facilities, funding mechanisms and regulatory programs. That’s quite a list of items.
modern program to measure its progress. And again I can assure you that the United States Attorney’s Office will be watching that application very diligently.
to what can be expected within the short-term approach in the legislation. Consequently, they created a process to allow the District and DER to reach interim targets and then on a long term phase to reach long term targets.
District rule making and a master permit and this will be the actual mechanism by which we regulate EAA farm discharges of nutrients.
provide notice of rule making less than 4 months; the rules that are to be adopted by January, 1992. Two rules will be promulgated.
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approach which will result in a much more effective regulatory program, much less room for challenge. It is a prudent way to go. We will also we issuing a master permit rule. It is a concept that is borrowed from the Lake Ockeechobee Swim Rule that allows the one collective permit, also a very efficient way.
doubt as to the good faith of the Governor and Mr. Milledge and those involved in this program.
items that he was concerned about, were the due process right of others. Who was he referring to, if you know?
that who may be affected by any rule making or neumeric limitations that are ultimately impose. It could be the farmers, but basically within the EEA but basically, in any event, who is affected, it is something really that the District has no control over whatsoever. It is state law. We have to live with it, as does any other citizen of the State of Florida.
sure that you can, or those with you can supply the answer, is, see, the Federal Government has an area of property that
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is in bad shape right now.
chemicals, speaking largely, that can come into those areas.
whoever is doing the dumping, "we cannot do it any more?"
you, I don’t think it is going to take that long. I think there is a whole process that’s been outlined in the Everglades Protection Act.
periods.
adopted in 1992 and that’s to cover the whole, the entire Everglades agricultural area. I mean, it is really an ambitious undertaking, and we are committed to accomplishing it.
that the United States Attorney’s Office has indicated, well, there is sufficient authority right now to start regulating, but if you take a look at the two cases that they cite, one is Devitt Farms where a defendant basically had an out of court settlement and a consent order was entered.
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the United States Attorney’s Office says the case stands for. So it is just not appropriate. I don’t mean to suggest that the United States Attorney’s Office is trying to pull a fast one, but I think it just shows that there is just not much law out there on this whole issue of water quality regulation at this point.
to ask you to kind of wrap it up because I do want to give the government some time. Then, of course, we’ve got the original purpose of our meeting which was the motion for summary judgment.
discovery as well
with what you are doing right now.
which they also refer to. They didn’t read the case close because Zellwood was a case where there was not any rule making that occurred, and the administrative judge basically determined that every land owner would be entitled to an evidentiary hearing on the issue of water quality limitations.
through the full causation of showing an imbalance in natural populations, ect. Basically you have the mini USA
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lawsuit and we’d have that for every land owner, hundreds and hundreds of land ownsers in the Everglades agricultural area. I submit that we can handle one USA lawsuit. We are not going to be able to handle 5 hundred or 6 hundred USA lawsuits. That’s it.
court has had the opportunity to review the pleadings, so let me try to just summarize in a somewhat different fashion and in a sense explain—
an opportunity to review the pleadings an I have been advised about that.
on me. I did want to suggest to you, also, one other thing before we get started, that I want you to know that the fact that Governor Chiles, when senator nominated me as a district judge is not going to make any difference.
wouldn’t, Your Honor.
a fashion. However, in a sense what I wanted to do was take the opportunity to explain why the United States can be in agreement with Governor Chiles and his staff on most matters; why we can trust his good faith; why we can encourage him, to the extent that we are citizens of the State of Florida, to go forward with the program he has, and, indeed, hope that these various programs prove to be successful; that we can take that position, in concert with him, and yet disagree about the effect of those position in court today, because that is the only disagreement with the Governor and the State of Florida, the effect of those positions in court today.
permits. It is not about plans, either. It is not about promises that have been broken in the past and that we have confidence that Governor Chiles will keep in the future.
forward year after year or month after month. What we did was sue over the quality of this water. This is water that came from the S-333 area, the S-12 structures just north of Everglades National Park this weekend.
We are prepares to prove in court today that as we speak, Everglades National Park and Loxahatchee are receiving dirty water, water which first violates state statutory water
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quality standards and has for more than a decade; water which, second, violates the contract which the that State of Florida has with Loxahatchee and with Everglades National Park; water which, third, constitutes a nuisance under Florida common law which has existed since any of us, indeed, any of us in this courtroom were born.
rhetoric, is that an examination of our complaint shows that we did not seek that permits be issued; permits which, if issued, do not affect the quality of this water, have, in fact, no affect on the lawsuit whatsoever.
quality water without permits. We are satisfied and, indeed, will be only satisfied when all of the plans and processes have an affect on the water that’s in that glass.
courtroom, the reason we are in agreement with Governor Chiles on the efforts, but argue that there can be no affect in this courtroom, is that the court can take notice of these actions only if and when, to quote a phrase from their brief, if and when it has an effect on the quality of the water in that glass.
different statements in their briefs along the way.
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States sought was permits. That’s not the relief we seek. We seek quality water. We have sued at various points and claim points at various points that they failed to meet their obligations, including permits, but their primary duty and obligation is, in fact, under the laws of the State of Florida, both DER and the Water Management District, to produce quality water.
of Engineers and the State of Florida.
for the gander. What is good for the goose is good for the gander, that’s true. That is the applicability of the law on those parties.
Engineers to do is to apply for a permit. What the United States needs the State of Florida to do is to produce quality water. That’s the sum and substance of the difference.
The Corp relates the permits. The state relate to quality water. Permits are secondary relevant only insofar as they improve the quality of the water.
numerous permiting systems throughout the United States are utilized, in fact, to protect poor quality water rather than
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to produce quality water.
who are to be regulated. So the point again is that it is the quality of the water itself.
process. While process may be appropriate in the future, and we encourage the governor’s leadership in that process, until the process itself produces 43 thousand acres, for example, in set aside ponds, not 3,700 and not 17 thousand, until it produces a scientifically demonstrable number which will have an affect, we should not take cognizance of it.
regulation on the farmers should not have an affect in this court until the actual regulation is known; until it can scientifically be recognized as to what that regulation, the specific steps that will be taken will do with respect to the quality of water.
about the change of circumstances. If this lawsuit were about the permitting process, then when you change the permitting process, which the state has done for time immemorial and will do again, then you would have a changed set of circumstances, but if it is about this water, I haven’t heard anyone in court today say that this water is any better today then it was 6 months ago.
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judicial notice that that water is either the same or worse then it was 6 months ago. So, if the issue is water, there is no changed set of circumstance, except as we presented testimony years ago in this courtroom, more cattails today then there were yesterday; more cattails scavenger species in the Everglades at the end of this hearing then there were before the hearing.
the Everglades Bill. The bill, of course, if it eventually has an effect, will be more successful then the first Swim Bill. The first Swim Bill, as Your Honor will recall, was 1987 and this is the first time I’ve ever used my glasses in court, so it is a first time for me.
referred to, and these phrases sound like quotes today.
was said by counsel for the state in this courtroom in 1989. It is a legislature effort that tells the District to take this tough issue, tackle this tough issue.
not talking hypothetical programs. We are not talking about what the state may do, what the District may do and to skip some lines, "this is not some speculative argument I am talking about."
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point is that, and this was when they were asking for a stay in primary jurisdiction in the state, "so the point is that there will be soon, and I think the last date we are looking at for final type action is the middle of next year, " and I point out at the time middle of next year was last year.
tangible proposal to address the very contamination that the United States is talking about in this case."
Chiles used the word "mandate," and believe that Governor Chiles did seek a legislative mandate to use as leverage. I think he wanted that mandate.
to use the Marjorie Stone and Douglas Act as a new piece of legislation so as to generate the kind of leverage and clout that he needs to make sure that the legislation is passed, but from the viewpoint of the United States, very similar language was used two years ago that the new Swim law says, in no uncertain terms, "you shall guarantee, when you are done with this, for example, that there will be no violation of state water quality standards." Additional quotes, and "then this process is on a fast track." That’s what counsel said two years ago.
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next year at this time, but we hope sooner than that."
process; that the government accused it of being a plan to try to imply to the court, Your Honor, that it was soft; that this just isn’t soft; that it will include penalties and permits and everything else that is normal to an environmental program.
don’t think that the past board should actually be accused of not making that effort, but the fact is it may have included an effort at penalty permits and everything else, but it did not include any change in the quality of that water, and that is simply the issue that’s at stake today.
brings us to these negotiations and to the specifics in the proposals, of course, the offer of judgment under Rule 68 should not have been submitted to the court.
"offer" and apparently some kind of effort to settle, but I am glad that they presented that offer of judgment because it gives Your Honor an opportunity to compare what specific proposals would be to their offer.
brief that we would want specific performance based standards for Park and Refuge and the Governor and I and Mr.
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Milledge and I are somewhat in the same position here because I think they turn in good faith to their staff and their staff says, "we agreed on Loxahatchee."
scientists and they say, "we are not anywhere near close to an agreement on Loxahatchee." So I think that these gentlemen said in this court what their staff said and I will say in this court what my staff say, and that is we do not have an agreement on water quality standards for Loxahatchee in a rim or final.
think the representations made to you are in good faith by everyone who stands at the podium, but by definition, if the United States says there isn’t an agreement, there isn’t an agreement.
that they are not close on Loxahatchee, then, Your Honor, they are not close.
futility of standing at this podium and citing private discussions, because private discussions will always be seen differently by different people. That’s why the rule always is that those private discussions or public discussions, but are settlement negotiations, have no role in being cited in court.
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don’t have an agreement on Loxahatchee and, frankly, we don’t have one on the Glades, either, because what we thought we had was a number on the Glades they will commit to, and what they will say, and you will notice it throughout your pleadings is if they are willing to start with the Glades number, but it may change throughout their administrative process.
with, not a number they start with. So we have had trouble with the Glades number as well.
fact is what is that? What the counsel responded to was that they have a date for adopting those enforcement measures.
should look at them, and I think they will be relevant to this court, but the date for adopting those measures doesn’t have any meaning. You do not know what the farmers are going to have to do.
read this, would he know what he had to do? No. He knows he has got to wait until something is adopted. Then it will tell them what he has to do with his run off water; how much he has to retain; how he has to clean it up, and so forth.
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regulatory program is, because it is just not here, then Your Honor certainty cannot. Specific remedial measures, set asides of land, how much acreage is going to be set aside?
for the state, is not good enough. I don’t think it is good enough , either. Our scientists don’t think it is good enough. We think 17 thousand is in adequate,
prepared to argue it is inadequate, and so much for the idea that substantial progress is being made.
enough, and that’s what I seem to hear from them, then we need to wait until they get to 43.
some number that science can be litigated in this court or agreed upon as adequate, then we would be at that point.
funding mechanism causes me to make a comment about the bill. I believe that different statements regarding the characterization of an event in life, different statements can be appropriate and true based upon the different context.
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characterize the 1991 law in a certain positive fashion, in order to generate the momentum necessary to enforce it is appropriate and does not represent any misleading whatsoever, but I believe that in this court I have an obligation to point out that you can characterize the law in almost any fashion.
law has an effect. We hope and believe that the state people will use certain provisions of the law, as they have not used prior provisions of previous laws, but that they will use certain provisions to have an effect.
and say that the law will automatically have this effect, then the counsel for the United States is obligated to point out that when you look at that law, as counsel said, some have said it is a major step.
the Everglades, but I will tell you this: Some have said that to restart the Swim process is to have repealed the 1987 Swim law and lost 3 years.
restart, but the memorandum attached to our brief from counsel for the Water Management District to the board says that the law requires that they restart with brand new notices.
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Swim process, I don’t want to attack. I believe that the state could have a method to that madness, but when that method is seen, when the water quality is changed because they stalled and restarted over again on the Swim process, their plan will be vindicated.
restarting a Swim process which was represented to this court two years ago as already going to solve the problem in ’89.
the interim permits can end up without achieving water quality standards for 15 years because the law says 5 years for an interim permit. You can renew it for another 5 and then you’ve got 5 more years on your final permit. That’s 15 years from now.
state, but insofar as we are left only with the law, then I am compelled to point out 15 years is not quick enough.
have incipient rule making power. This law wiped it out and the little bit I know about state administrative processes is that an agency that loses its incipient rule policy that looses its ability to base decisions on incipient administrative policy has lost substantial power.
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a positive aspect, but District Counsel have written memos over the years that said they could create benefit districts and levy fees to the farmers who benefit from the benefit districts, and that is particular piece of legislation, while a positive step, is not unique in that respect at all.
that can be levied on to the farmers and substantial litigation will result in a burden of proof on the District.
my very point, that if the law is considered good by some, that’s because they have a plan with respect to that law and I don’t question that, but the law itself cannot stand for the achievement until the plan that stands behind the law is achieved.
can look in Florida law and see general condemnation authority for the District. Today, the District lost that condemnation authority until a Swim Plan or a permit is achieved.
condemnation authority in return for being unable to exercise it until they achieve a permit. That’s a political judgment that they are entitled to make, but it is not one, a leap of faith that Your Honor should make with respect to
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which condemnation authority was better.
interesting one. The collective permits may work, and I commend the state, if and only if they work. It is easy to argue that collective permits represent the successful effort of the agricultural interests to no longer have to have individual farms permitted by the District; that they fought individual farms permitting for many years; that individual permitting was required and that after 1991 they have finally achieved their goal, which is to escape individual farms being placed under individual permits.
issued to the entire Everglades agricultural area held by a collective entity which the governing board of which may be controlled by the farming community, all of which is to be seen.
difficulties of individually permitting those farms. The state would be correct if it said, "our option for a collective permit does not represent back tracking, in our judgment."
until the releaving the individual farmers of the burden of getting permits is vindicated by the success of s collective permit, neither Your Honor nor the United States could reach
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that conclusion.
of believing that this lawsuit is about permits and administrative process, and not about water, is that the state has consistently and today still inconsistently pleads before this court.
summary judgment in which the current pleadings filed by the State of Florida, both entities say that water is not dirty; that we are not degrading Everglades National Park and Loxahatchee.
the degradation and so committed to eliminating these depositions, they why is Susan Ponzoli having to put people on deposition to prove one thing and one thing alone, that this water is dirty?
the governing board believes this water is dirty, if DER believes this water is dirty, and if proving this water is dirty is going to divert them form cleaning up the dirty water, then why won’t they stand at this podium and say that this water is dirty?
that are necessary for the United States to conduct to prove what they otherwise are willing to assume, but not recognize
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in this court?
in a number of other examples, but I think probably the best, and I will leave it at that, is the not denial of the allegations that the water that the Park and the Refuge is receiving is, in fact, and has been for some time in violation of the various water quality standards, the substantive standards.
of permits, and one of process, rather than one of water, is that it causes the state to effectively overlook all of the pre-existing law and all of the pre-existing authority to undertake the remedies, all of the pre-existing obligations, the 1991 Outstanding Water Law, which wasn’t a permissive law.
legislative mandate, but 1979 was a pretty good mandate. It says, "period, you will, must, period." It uses all those verbs that fit the definition of a mandate and ’87 was a pretty good mandate. Counsel properly described the ’87 Swim law and then the ’91 Swim law.
overlook the pre-exiting violations. That’s the sense in which I agree with counsel, that it is purely speculation for the United States to say that Governor Chiles will or
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will not succeed in enforcing these provisions of law.
attempt and will attempt strongly and his secretary, as well, but the question of whether or not the Governor will succeed, and the Government’s own description of what it is like to be a United States Senator and what it is like to be a governor, and that is where you have all this power and President Kennedy when he was in the Cuban missile crisis and all of the literature indicates that chief executives have difficulties in consistently wrapping these massive administrative bureauracies into submission, so to speak.
will succeed is pure speculation. Now, if that water was clean, then speculation about whether it will become dirty has place in this court, but if the condition today is that the citizens of the United States are receiving dirty water, then by the same token, speculation about whether or not it will be cleaned in the future has no place in the court.
faith or failure on the part of the state. We simply start with the right of the United States to be in court because the law is being violated. Our right to prove the law is being violated. That’s our motion, or those are our depositions.
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about what will happen in the future, we agree with the state, is of no great concern.
is that we are not apologetic for being in court. Article 3 of the Constitution of 1787 puts controversies in which the United States is a party in this court.
issues. This has often been compared to prison over crowding. It is not because the remedies we seek and the oversight of the court is much less, but the federal courts have provided remedies for United States citizens, and the framers of the Constitution knew what they were doing when they, with the consent of all of the states, put controversies to which the United States is a party before Your Honor.
chagrin of every other branch of government, Article 5 creates an independent Florida judiciary in which Your Honor now stands in place of, by virtue of Article 3. So the two relevant concepts are Article 3, U.S. and Article 5, Florida.
this court today. The only thing we apologize for is that we allow this to go for decades; that we did, in fact,
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accept primary jurisdiction and mootness and the stays.
United States should have been before you, or of your colleagues years ago, rather than being in front of you today.
United States has anything to apologize for for utilizing the courts, and that is the failure to utilize the courts when we were aware of the demonstrable failure of the regulatory and executive branches. We should have utilized the courts sooner. Thank you.
Lehtinen?
is deny the stays. Ask counsel for the state, both how much time they will need to substitute counsel. I would like to point out that laying everything on Skadden, Arps is a little, it is an acceptable argument, but all counsel, Skadden never represented DER.
counsel for the District remained the same. Counsel have not changed in that regard. You could ask them if the neat necessity to change counsel, to get up to speed, requires them to have a month or whatever time is involved, a lot different than this year and a half kind of stay stuff.
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depositions while they are trying to change counsel. Susan Ponzoli has offered to work with them in that regard, but to the extend that we are unable to reach that agreement, the United States does recognize that in this immediate future the issues regarding changing of counsel, and whether they can cover depositions is quite a different matter that we are willing to work with them on.
counsel for matters like that, that is certainly something within the discretion of the court; something the United States can work with and would relieve them of these other concerns, but I would not grant any delays beyond 30 or 40 days or any matters that don’t carefully relate to this new change of counsel and actual specific tachtical matters within the lawsuit.
setting—if Your honor doesn’t have time today, setting the motion for summary judgment as soon as Your Honor can see fit on his calendar.
with you is dirty water?
imbalance on the flora and fauna, and so forth.
it is not.
scientists, and actually this is by way of argument, but we think the state scientists on depositions and in this court and their written materials actually support that it is polluted water, but the state pleadings in court, by its lawyers, are that they deny the allegations of the lawsuit. They deny that it is dirty water.
of, without taking a lot of depositions?
the easy matter. I believe the gravamen of these depositions, and the kind of "Mylady Doth Protest" too much with respect to what these depositions actually represent.
depositions if we didn’t have continually, the last time we asked them, "well, who you changing counsel to? Are you going to in the house counsel? Who do we phone work with on the depositions?"
going to represent the state on this." I think they are just waiting until the circumstances of changed counsel provides another opportunity to argue for delay.
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that regulate the amount of nutrients that should be in that water, are there not?
simple matter to get the scientists from both sides to look at the water as it presently exists.
with that law.
Honor, but the scientists are under orders from mid and high level policy makers with respect to what they can and can’t say in the meeting
certain findings, are they?
meetings of scientists that are represented by opposing counsel often represent actually an intermediate policy maker coming from the District, not a scientist who is free to express his opinion.
all I wanted to say was that representations about these meetings should not be accepted by the court, unless they are joint. In fact, these meetings do not always have
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scientists from the state aside who are free to discuss the matters with scientists from the federal side.
course, is the number of depositions that I understand have been set and that you indicated at least a good portion of them as you said in you are opening remarks is simply to determine whether or not that water is dirty.
respect to why an individual scientist is set for deposition to defend that. I think we have an obligation to do that.
state has never done that. They have never said, "this individual scientist," and they don’t deal with us. I think they prefer to keep the argument alive; that there is just too many depositions, instead of actually discussing who can be eliminated and how.
simple. Perhaps that’s misleading from time to time, but if the effort to determine whether or not that water is dirty is obscured by the various process involved, I would be happy to appoint my own expert under Rule 706, I think it is.
happen, we do believe that the motion for summary judgment is argument and the state would oppose it, but the motion
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for summary judgment is pending.
contaverted facts, the partial issue that you are addressing. So if Your Honor chose to deal with that motion, it would eliminate all of these depositions.
judgment, in other words, that the water is contaminated—
preliminary matters, all of these depositions would turn simply to the issue of remedy. We have not gotten beyond this issue of the contamination of the water.
responsibility, to the extent that the state has made certain counterclaims, there are some other issues.
styled "partial," but it would move it to remedy, and insofar as the authority issue is relevant to remedy, and so forth, but it would certainly move along most of the scientific issues.
is Tim Searchinger. I am representing the conservation intervenors, and I would like to just say and preface my remarks by saying that everything I am going to say is not
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in dispute at all with our understanding of the sincerity of the governor’s commitment.
furthering the effort at conservation, let me check with my court reporter to see how he is holding up. Do you need about minutes? He needs about 5 minutes. Let’s take minutes. (Recess taken)
You may proceed
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