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UNITED STATES DISTRICT COURT
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| UNITED STATES OF AMERICA, et al,
vs. SOUTH FLORIDA WATER
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| MIAMI, FLORIDA
July 29, 1991 |
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201 SO. BISCAYNE BLVD. |
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Proceeding of above-styled cause,
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APPEARANCES:
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a court reporter and the United States has no objection to that, but we would request a copy of the transcript as soon as it has been ordered.
direct that of the court reporter.
record and make that stipulation with the original to go to Mr. Earl.
United States. I would like for each of the attorneys to indicate whom he or she represents at this discovery.
Department of the Environmental Regulation.
Florida Water Management District.
Florida Management District.
of Bell Glade and Clewiston.
Sugarcane League.
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United States.
representing the United States.
had indicated you were also representing Mr. Smith's clients also, is that accurate?
which I am going to present.
them?
today, no.
position that as of Friday the DEA, the South Florida Water Management District, and the United States having entered a settlement agreement, that we have substanially changed circumstances in this litigation, and I am here really largely to listen to what the interveners believe the appropriate issues that remain are and what discovery they think is related to those issues.
like to make, but I am here really to listen, Mr. Earl, and Mr. Burgess, to what issues you believe are appropriately remaining, assuming the Court
5
were to approve the settlement agreement, and I also guess as a first issue prior to that we would welcome your comments on what type of hearing you believe is appropriate on the settlement agreement.
Ms. Ponzoli, and I presume you have some proposals?
because I think the issues are unclear. I am not sure we are going to agree on what issues remain for a discovery, but I am certainly willing to try to work with you on that.
Water Management District and for the --
States.
our position.
Sugarcane League?
me? I already said who I represent.
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representing a joint position. I don't want to interrupt you. I want to make sure if this decision represents other defendants, interveners also.
interrogated by you. You can make your statements and I will make my statements. I am not going to answer your questions.
the record and whom you're putting it on the record for --
interrupting me for a few minutes perhaps we can get the position out on the table. I have not interrupted you.
you either.
received copies when we walked in the room of the federal settlement. Apparently something was
7
filed Friday night with Judge Hoeveler.
not had a chance to read that.
document does say and is?
copy of it, Mr. Earl, when you came in over a half an hour ago.
agreement which was made public sometime ago, and this one is signed by all the parties and has a very brief notice of filing settlement agreement, and on the second page it says that these parties signing being the United States, the Florida Department of Environmental Regulation, and the South Florida Water Management District request an oral hearing regarding approval of the settlement agreement and to determine what if any further proceedings the Court wishes to hold regarding resolution of the above matter between those parties and all other parties.
that was passed out. I think you got a copy on July 11th at the board meeting.
8 clients made a request on Friday to the Water Management District, a stay in the execution, an infiltration that was never acted at the board meeting. Am I to understand that was denied?
subsumed in your petition for administrative hearing which was denied.
correct.
board voted on was to approve the settlement agreement and deny the settlement petition.
a separate stay request, for the board which they did not act on despite my request.
status.
interests has sent a letter to the U.S. Attorney indicating that the jurisdictional issues, subject matters, jurisdictional, issues, should be taken up first.
specifically, now inquire whether it, the United
9
States, and the state agencies would be willing to stay the summary judgment matter, to stay the consideration of the settlement agreement, and to stay all discovery until the Court has taken up Mr. Smith's jurisdictional matter.
Ponzoli?
to take a position on that at this time. I am taking it back to my client and discussing it with my client .
position it would be the United States desire to proceed with briefing on the jurisdictional issue, a hearing on the settlement agreement, and reaching some preliminary discovery decisions all simultaneously.
judgment?
propose to do, Mr. Earl, is that early next week, Tuesday, if it were agreeable to all parties here that I think it would be appropriate for all parties to brief the Court on what issues each party believes remain for the Court to decide and
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how an appropriate settlement agreement hearing should proceed and then perhaps a rapid turnaround for a reply brief.
to one another and perhaps allow five days or something for a reply brief to be filed and let's have a hearing on those issues before Judge Hoeveler as rapidly as possible.
date?
like to call and see if we can obtain some kind of hearing date while all of us are here by conference, speak to his clerk, and ask if we can ask for a hearing date, propose a type of written schedule to the Court and see if she can get back to us with a date.
the summary judgment falls under that also?
summary judgment issue?
is necessary at this point. We will take a position in our brief whether that is necessary.
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now even necessary?
have an objection that during this conference that we would call and see if we couldn't propose this type of briefing schedule and obtain a hearing date?
and consult with my clients as you indicated you would like to, and then we can perhaps arrange such a call because I think I need to advise everyone we have exclusive jurisdiction over the action taken by the South Florida Water Management District and Secretary Brown residing and the Florida District Courts of Appeal as to, not as to the decision to settle as the law sees, we don't have a right to make a hearing and to process on, but as to the fact, and as to the regulatory program policies and decisions which were added on to that settlement agreement.
again, we have moved to the Fourth District Court of Appeals for relief and have filed a notice of appeal in the First District Court of Appeals.
Water Management a staying request which both
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agencies have apparently no word --
Friday we faxed you a letter.
not come to my office.
and this morning, you did not advise me.
didn't get it.
record you would provide the United States with a full copy of that petition for writ of prohibition.
are asking for a full copy of that and also the one that went to the first DCA, also.
has is the notice of appeal that has gone there.
in the contract the United States is a party to,
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assuming it is approved by the Court, any violations of the state court that would go, the enforceability of that, the United States should properly be served at least a courtesy copy, at least prior to making a decision as to what we are going to do.
interest. Any challenge in that agreement certainly affects the United States interest.
process or not in it. You can't have it both ways. If you want to be in the process, I suggest you immediately move to intervene.
one purpose and not for another. You can't try and avoid the jurisdiction of Florida Courts and say you want to be part of the process.
copy.
accommodate Counsel with the appropriate documents and material, but there is no obligation, and if you want to get into state proceedings you should get into it. It would be my suggestion.
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courtesy.
to the DEA.
would also appreciate the courtesy of materials you filed and documents that you filed and have available.
with our materials. We were not given the courtesy of comparability of what happened before Judge Hoeveler.
within the contents of what is going on here.
later in time.
District not the United States.
you were served with the settlement too.
else filed with Judge Hoeveler.
I happened to call and request the status.
file, we filed that about almost 6 or 7 o'clock in
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the evening Friday night. There was no way to get that to you.
exclusive jurisdiction resides in the Courts of Florida and that this process through the secret of six months of negotiations between the agency and the United States is denied to circumvent that jurisdiction.
request, we have already asked the South Florida Water Management District, and they have denied our request, that we would at this time ask that the United States and the DEA modify the proposed settlement agreement to avoid this end run around state jurisdiction and simply provide that, and the copy I have given you does not have the United States as party.
addendum to want the United States added as a party since it is a party. This simply would provide that any conflicts between the contract, the settlement agreement, and the three-party rights including those of the Sugarcane League would stay fact findings, and hearing process would govern, and that the other, there are three
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other paragraphs which you can see, it would make that point clear.
jurisdictional concerns about the Court's subject matter jurisdiction, but if this addendum were adopted we feel our due process rights and the state process rights would be protected, and that is the purpose of this agreement, and that we would then be able to as we should properly be able to fully and fairly dispute in a state hearing process any facts, any regulatory policies without our rights being circumvented and denied under this settlement agreement.
facts found in the state administrative process. That will avoid having to litigate the facts in the proposed summary judgment, the facts in the case, the facts in the settlement agreement before Judge Hoeveler. We don't think they should be.
process, but as this mechanism represented by the settlement agreement has been drafted so carefully, it is designed to eliminate and do an end run around, not only the Florida Courts jurisdiction, but our findings administrative
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procedures.
resolve that. We would not be a signatory.
League is the signatory but the existing parties to the modification. So, let me respectfully note what I have handed out would be modified. The Sugarcane League is not a signatory because we did not participate in this.
Water Management, and the United States which would be agreeing to an addendum, and we would respectfully ask you consider that and advise us of the United States position and the DER'S, and Mr. Gough would advise us of any hearing before Judge Hoeveler in regards.
already been reflected by the District, isn't that true?
without giving up any?
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existing like everyone also under the State of Florida without having them negated by this contractual agreement which ties the hands of the agencies.
hearing, it deprives the agency to unilaterally determine the rights of the policy procedure.
each and everyone of your statements which the United States agrees, I would put on the record, I don't agree with the large number of positions you're taking regarding what has gone on in your characterization of this modification and/or the settlement agreement.
and I will pass it on to my client as I am obligated to do.
would agree with me and I understand.
agreeing by your acquiescence at this meeting and not agreeing to my statements, and we would request the modification, and we seek the jurisdictional determination first.
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decide and are the only Courts empowered to hear the propriety and whether or not there is an entitlement to a hearing on this agency action corporating the regulatory policies and facts which were added onto the settlement.
of the facts, discovery, and much of the trial of the facts necessary in the federal lawsuit if that modification were accomplished and the facts could be determined in the normal administrative process, which I understand the Federal Government will be participating if there is no stay and no modification agreement; however, we believe we need to undertake and quickly obtain all discovery requested so far, and we will need discovery relating to the purported undisputed facts the United States has established, has asserted, the facts and policies and settlement agreement, if we are going to be denied the APA process, the counterclaims to be processed.
Counsel. There are two.
suit we filed seeking the secret document and accompanying negotiations. If that is maintained in federal court, of course, as a separate suit with the parties of the United States who brought that into Judge Hoeveler, that would also require discovery. All of the issues to be raised.
this process if in fact the state agencies and the Federal Government are successful in a avoiding the jurisdictional appeal and bringing this matter before Judge Hoeveler would, of course, be subject to necessary discovery.
was served on 6/21/91 which was due obviously 7/2/91.
interrogatories, we have requests for entering inspection to the parks in Lachahatchie which has been a long standing request.
League as part of the litigation.
that not part of the litigation and normally filed on 6/21/91. There has been a long standing exclusion -- 21
characterization.
admissions, again, which were filed 6/21/91 which were due 7/21/91. We have previously sent you Ms. Ponzoli a list of initial depositions which would be required.
inspection, and request for admissions, I understand the United States has taken the position that the issuance of mandate controls and that the discovery time period begins to run on July 9.
necessary discovery we would be willing to except that position, if the discovery were provided, and if we were to have that, and other issues were resolved, and have it by the due date of August 9 in an effort to resolve this.
position that they were due. The mandate issuance time began to run and that was July 9, so we would want that on August 9.
22 days.
ongoing issues.
issues, therefore, you have to take longer periods of time. You mixed defendant issues with plaintiff issues, Mr. Earl.
discovery, I will be happy to segregate and make a distinction or remove that if necessary. It is our position we would like it on August 9.
those matters which relate to the existing issues, not to our counterclaim, that is fine. We will provide the 60 days for the counterclaim material. That would not be an unreasonable way to handle that.
position. If the Court intends to take that and you wish to oppose that I suggest you file an opposition.
appropriate to respond in an earlier fashion trying to resolve those issues.
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try and determine what remains of the entire litigation and it would be very desirable if that could be done prior to the time we have taken the position on your discovery which would be due.
to respond to these various requests. They have alot of different problems with it.
finished for your request for entry that we may be able to resolve more rapidly and easy.
missunderstand the position, the answers to any of that discovery that relates to the existing issuance, specifically, your allegations in the complaint is due on August 9 and we would like it on August 9.
it out, I am going to stipulate the position we stick with that position we filed in Court, and we stick with that regardless whether you have sorted that out. I don't think, I think, it is silly to start fighting question by question --
You need to go through the vast majority, and if you find one that you believe relates to the
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counterclaim, don't answer that. You have 60 days on that one.
but I think I filed the way the United States intended to proceed until the Court rules, otherwise, we will stay with that.
on request for entry inspection.
with your discovery request?
that portion of what I have to say.
my clients have decided they will not continue to resist allowing your researchers to come in since they have done it finally and appropriately, or at lease sufficiently and appropriately through the Court .
begin soon is that we would have a meeting of your scientists and your lawyers because I intend to participate in this initial meeting.
our scientists what they are seeking to do. Let's try and set out what research they need to do.
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to no longer resist their coming in, does not concede this is an appropriate issue remaining to be decided by the Court.
rules upon those issues which your researchers would come in are factual issues that the Court should decide.
that, but we are saying that we would allow you to come in under appropriate circumstances and appropriate conditions to do research at the refuge and the park.
of perimeters of conditions. One are the special use conditions that the refuge in the park have when they allow researchers to come in. I cannot recite what those various ones are. I think they vary depending on what you intend to do.
Court order until such time as it was determined by Judge Hoeveler that this research was wholely outside the federal litigation any more and you would be proceeding only under the special use permits if that time came.
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people assuming the availability of Dr. Sukka and Dr. Nafae as early as this week or next week to have this initial meeting.
expedite this so you can begin to get the process moving. I don't think we are going to agree to 14 months unless somehow your researchers can convince my people it is really necessary and the research they need to do will take that long, but I am willing to sit down and have this initial meeting and try to get this moving.
depositions, it seems like you're asking for sort of two different things.
stated, and if you don't have your way on that you want all of your depositions. I believe in that regards, I think, I made it clear, I am not interested in this stay.
could get before Judge Hoeveler rapidly to determine the issues for federal court that would be the neatest way to begin a deposition schedule.
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think are the issues that would help us frame that very quickly?
position at this time. I am willing to file something in Federal Court as early as next Tuesday, if all other parties are willing to do the same and take a position.
conference to discuss discovery and you won't discuss what issues you believe are relevant?
and a whole lot of depositions. You're not taking a position either.
won't have to worry about the other matters.
modification I should say, we don't have to worry about the other matters.
Earl, with some unilateral demands that would make everything my way as you have, but I am trying to be fair.
and begin your entry for research into the parks
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and the refuge.
some idea what your concessions of issues are and what would be allowable and not allowable under your perception and the United States, not yourself personally, but the United States perception of what the remaining issues are.
was. I tried to lay out those issues for you.
everything is now to be litigated or to be done in the state court process; is that the short version of your position?
jurisdiction and then skip over to something.
think I laid it out very precisely what our position was.
we would have, what issues we would have to have discovery on, and I think I asked you to tell me that you think discovery we should or should not rely on and we will have a more focused briefing schedule.
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to you will focus on your briefing in anyway. I think it is very arguable and the United States will take the position that there is a very narrow scope of issues remaining to be either discovered or held in evidentiary hearing or litigated in Federal Court.
again, so I can understand where we are, if at all we have a substitute on this, what you think those issues would be relating to?
would be they relate very narrowly to a number reflected in the settlement agreement.
Eleventh Circuit we will.
position. We believe we already got a motion litigating their position on what affects those Cities.
gotten such an order so we will greater stipulate the issues that interest the cities are limited.
itself. We may need Judge Hoeveler to tell us
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further what his order means in light of where we are.
should we go back into deposition, I believe, the Florida Sugarcane League and the Cities and all other defendant interveners provide the United States immediately of the expert with a list of the expert witnesses that you would intend to use in any hearing of any type.
have had them for a significant period of time.
depositions or a good number of representatives from your firm have sat in on a good number of depositions of our experts and we are entitled to have also those experts, those documents, those expert witness documents, etc., from the defendant interveners.
maybe a problem for small minds. If that is the case, I will accept that characterization, but you're taking the position that for our discovery the rights begin to run on July 9, our rights, and we have told you as to the discovery going to the existing issues we require our response by August
31 9.
lawsuit on July 9. We are in the process of selecting, resigning witnesses for this litigation. We will certainly make those available to you, the ones that we are selecting for utilization in this litigation when we have made that decision. We would be able to tell you on August 9 when you provide us.
that time, which I don't think is final. We won't have selected all consultants, but we would appreciate having your discovery on the same time and we will give you who we have selected at that time, if we get responses to our requests.
it has been provided in this case rather extensively, Mr. Earl. That is probably not a sustainable position. I understand you have stated it.
any independent position, whatsoever, in this litigation?
what we need to do is not brief the Court on what
32 each party thinks or what are the remaining issues, but have the Court tell us what it wants to deal with by way of remaining issues and then we will have a clear picture of what discovery is necessary and appropriate.
prior positions, but I think very clearly our position is that the jurisdiction of the Florida Courts need to be determined first before we start briefing. That will tell us what issues are available for this Federal Court sitting or a state judge.
rolled up in one briefing. You could put that in as part of your briefing to the Court. You already have anyway or your colleagues have, and when we get some indication from the Court whether it agrees with the broader concept of issues as such as you're proposing or more narrower concepts of issues, which I think the state agencies of the United States would contemplate, then I think we will be able to focus much easier on what additional discovery is needed and appropriate.
large extent, and when this was scheduled we
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is kind of spinning our wheels.
made it more appropriate for us to let Judge Hoeveler decide, tell us what additional facts he needed to have to dispose or proceed with the case.
the Florida Courts, of course, have exclusive jurisdiction. Again, that is our position. I don't need to state that. Judge Hoeveler does not .
I don't need to object to every characterization of law you make. It does not mean I agree.
deciding that issue.
can have an answer from your client? I asked you for a position on this briefing .
together on the briefing schedule and approach the Court?
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this by phone tomorrow at one o'clock.
you initiate that conference call? I can't initiate a conference call. I have to have it done out of Washington. I don't mind doing that.
Cooper and Mr. Gough will be involved?
and Mr. Cooper to be plugged in from Washington and whoever is the appropriate person to sit in the room from Washington.
a list of names and phone numbers, I will be happy to do that.
on this list?
also at that time come back to me with whom you believe that your people could get together with mine regarding the entry?
meeting and talking with some consultants to see
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here whether your unilateral proposed position is reasonable or acceptable.
assure you, I believe, it will expedite the process because what you have filed this Court I will probably have to oppose for a number of reasons, but if we sat down and discussed it maybe some of those reasons would evaporate and it would be easier for all of us.
parks and refuge if you sit down and set it down the way I proposed it faster.
finally, and we appreciate the opportunity after two and a half years.
to do some meaningful work and not be channelized and shunted into a narrow scope of work that does not accomplish only what the federal work allows, but what we need to get done.
with the bath water here because of expediency. It may be unreasonable and it may prevent any serious work.
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the record I found it offensive for sometime your hired experts have attempted to come into federal property under the guise of independent researchers doing independent research or presumably no one in particular and I think that is inappropriate.
two and a half years for something that is inappropriate.
get that in a rather appropriate manner you're getting a rather expediency condition of that.
the agreement will be acceptable, I will try.
able to do it that fast, Bill, namely, the general counselor and secretary.
you on that.
the record, speaking of vacations, I intend to be on vacation the week of August 12 and August 19.
the Court because should Judge Hoeveler set us
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would ask him to set us either before those two weeks or after those two weeks.
with your scientists, I would like to take place, if at all possible, prior to those two weeks. If not, I guess it would have to be the week of the 26th.
again, be possible for you to send me a letter outlining what you think so I can save several conversations?
the structures would be and what you think would be appropriate and inappropriate based on your request for entering inspection that would save me sometime--before you finish nodding your head no, if I may finish what the problems are with it?
those problems and see when I come to you with the scientist when we will be able to resolve that or if it will be something irreconcilable we will have to go to the Judge. I want to save that step.
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will send you something in writing, but I am not going to spend the extensive amount of time it would take me to brief this to the Court in a letter to you.
I will just brief it to the Court and we can take the lengthy period of time to respond.
would be a simple pointing out of some areas that are unacceptable to the parks, the Federal Government Latchahatchie, and what wouldn't be acceptable so we know how to proceed. And I can consult with my consultants and sit down with you and discuss that with you and your consultants. That would save alot of time.
something in writing. I don't know if I can meet all the needs you have expressed and certainly not in a very rapid period of time.
will be able to sit down and contact my consultants.
Belle Glade, I want to ask what it is we are going
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items, specifically, you want addressed for timeframes since the United States desires timeframes and we will be able to effectively brief.
next week what remains in this litigation, what issues remain for the Court to decide, and what type of a hearing the parties believe is appropriate on the settlement agreement.
propose to take place either before your vacation on August 12th or after August 26th would be a hearing at which time the Court would have in front of it, what, a status report with respect to what each party believes are the issues remaining?
envision, Mr. Burgess.
getting together tomorrow by conference call to decide whether or not that brief could be presented in order to allow the Court to have a hearing before the 12th or after the 26th?
rapid hearing and so we will know where we are going with our discovery and what we are doing.
it before the Court and do it so it can be done in a timely fashion.
to turn over a witness list for them, Mr. Burgess?
Court order that we were all to exchange witness lists a long time ago.
Mr. Larson as potential witnesses, but you also filed an excess of two hundred pages for partial summary judgment which has been recently stricken by the Court, but, obviously, there is some expertise that have gone into that and your experts have been at virtually every deposition.
the United States--I will let the State parties speak for themselves, but if any more discovery is furnished by the United States we should have participant discovery, meaning a witness list, so when we start with these deposition schedules
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after the Court determines the issues, that they will be reciprocal depositions going on of our people and of whatever witnesses of ours are left.
back. It has been over two years and you certainly have experts you're relying on thus far.
have been holding back. I think the Cities have filed responses that were due pursuant to--I will say on behalf of the record, I will examine at your request to determine whether we are or not at full compliance, but by all other parties, and I will have a response back to you on that question as to whether we think we need to supplement or indeed file any additional list.
you all prepared a privy list of privileged documents?
filed was objected to our discovery request as being taken privileged documents and the subpoenas to Mr. Larson and Mr. Davis.
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required a privilege list well in excess of eight months ago or a year. it has been sometime.
same representation. I will see what it is the Court required and whether that was required of the Cities, and I will examine that and get back with you.
the City interveners and the agricultural interveners including those represented by Mr. Smith--well, will the Cities be speaking with --
agricultural interveners?
order.
Just the agricultural interveners that must be.
Court order, that same one you're reflecting on. I don't think the Cities were obligated to do anything in response to that order.
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you at one tomorrow then. I guess, depending on what goes on from there, we will decide if we need anything further.
concluded.)
CERTIFICATE STATE OF FLORIDA:
Shorthand Reporter and Notary Public in and for the State of Florida at Large, do hereby certify that the meeting in the above-styled cause was taken on July 29, 1991; that I was authorized to and did report in shorthand the proceedings in said cause, and that the foregoing pages, numbered from 1 through 43, inclusive, constitute a true and correct transcription of my shorthand report of the proceedings at that time.
affixed my hand this 4th day of August, 1991.
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