3
THE COURT: Have a seat, please. Let me first,
gentlemen and lady, advise you that you have exactly 40
minutes. Whatever we are going to do this morning we are
going to do by a quarter of 12:00, at which time I have to
leave for the investiture, happily, of one of our new
judges. So let’s do whatever we can. You are on, sir.
MR. SMITH: May it please the Court.
THE COURT: Yes, sir.
MR. SMITH: My name is Robert Smith. It is my
first appearance before Your Honor, but I’ve been 34 years a
member of the Bar of this court. I practiced in the main
courtroom before many of your distinguished predecessors and
colleagues.
I am here for my first appearance in this case in
this court personally for 3 of the farm interests.
THE COURT: All right, sir. We are glad to have
you.
MR. SMITH: I would propose to take 5 minutes.
THE COURT: You’ve got it.
MR. SMITH: My watch is in my hand and I will sit
down, unless I am invited to state further.
THE COURT: All right, sir.
MR. SMITH: It is now 6 minutes after the hour. I
presented to Your Honor, and I wish to present to Your Honor
here today, our motion to stay all proceedings in this case,
4
including this proceeding, pending Supreme Court action on
our petition for certiorari filed 6 weeks ago or so, two
months, in which the United States brief in opposition is
due today.
I have submitted the motion filed two days, filed
yesterday furnished by fax two days ago to the United States
which shows the grounds for this; attaches the affidavit of
Professor Levinson showing the impact, in fact, of this
federal judicial proceeding upon the autonomous
authoritative Florida law.
We ask Your Honor to take that into consideration.
On the 22nd of August of this month, Your Honor entered an
order striking a piece of work that I had taken about 6
weeks to prepare, and it wasn’t bad scholarship, on the
question of this Court’s Article 3 jurisdiction.
I was right proud of that piece of work. I thought
a man of your intellect would read that. A motion to strike
was filed, and I timely filed a memorandum in opposition to
it, and the same day, without my memorandum having gotten up
to Your Honor’s chambers from the Clerk’s office, Your Honor
entered an order containing 2 or 3 factual errors copied
from the government’s motion striking that piece of work.
In other words, I wasn’t entitled to be heard on
the question of whether I could be heard on the matter of
the Court’s jurisdiction.
5
I think case management-- I have got 3 minutes.
With so many parties, Your Honor--
THE COURT: You may have a couple more, in view of
your enthusiasm.
MR. SMITH: Case management has built a wall around
that formidable intellect and I want to try to reach it. I
want to ask Your Honor to consider this:
I have read all the authorities. I have never
found any case, except what you could read in Judge
Hatchet’s orders, the Court’s order, that authorities a
federal district judge to proceed in a case, any kind of a
case without a determination of jurisdiction.
You know that jurisdiction is being asserted with
every breath you take in this case. You know that one of
these days you are going to pass your hand over something
and say, "I have jurisdiction."
We haven’t been heard. You have held we are not
entitled to be heard. I think a fair reading of the
Eleventh Circuit order says something like that. I really
do.
That’s why we are trying to get in the Supreme
Court, but I call to Your Honor’s attention, or attempted
to, what the Supreme Court of the United States said in
1984, citing a case, they said 100 years earlier in the
Boxith case that says, "it is a rule of federal courts
6
inflexible, and without exception, that the Court is
sensitive and raises of its own motion despite such
agreements as the United States has hammered out with these
submissive state agencies, to the question of whether it has
got Article 3 jurisdiction."
Now, if Your honor has ruled without hearing me,
that I can’t be heard, I should think Your Honor would
strike that order and start again.
THE COURT: I am hearing you now.
MR. SMITH: You are hearing me on a motion to stay.
I can’t in 5 minutes or 15 minutes, and I have got one
minute left, argue my motion, my suggestion of lack of
jurisdiction.
I would love to argue it. I think I could appeal
to that intellect. I really do. Give me an hour and a half
and I will do it.
I ask Your Honor to enter an order staying this
case. Vacate from the bench today, vacate it, that
embarrasing order that you entered without listening to the
opposition.
Let’s get back to scratch. Set a hearing date 6
weeks off. Give the government 30 days to respond to my
suggestion of want of jurisdiction and then take up the
question of jurisdiction whether I can be heard on that
question, together with the merits of that question.
7
Set a hearing and let’s clear it away. Your Honor
cannot accept Article 3 jurisdiction by the consent of these
parties of Lawton Chiles who, in this courtroom, who said he
was surrendering his sword.
Article 3 prevents you from demanding, accepting
his sword. We’ve attempted to show Your Honor a tremendous
impact upon the state government. We ask Your Honor to get
this case back in the condition where that intellect can
operate on the serious question of Article 3 jurisdiction,
and let’s get moving on it.
In the meantime, stay this, with the exception of
that jurisdictional question, so that we can go forward and
get it decided by somebody who can decide whether we can
really be heard. Thank you very much.
THE COURT: All right, sir. Thank you, Ms.
Ponzoli.
MS. PONZOLI: For the record, Your Honor, Susan
Ponzoli for the United States. Mr. Smith is new to this
matter, Your Honor, and these issues have been addressed in
this case before.
The issue of jurisdiction has been raised by
multiple parties and ruled on by this court in the motions
to dismiss. The motion that he says was faxed to the United
States, I don’t know where that fax went.
We received our Fed-ex copy yesterday and I think
8
this is a type of motion that we would expect the
agricultural interests to be filing at this time. We want
and expeditious hearing of this matter and they are trying to
stay and shut down all forward movement in the resolution of
these problems.
I would just simply say that the arguments that Mr.
Smith wishes to raise should go to the substantive legal
arguments he may wish to raise in the fairness hearing going
to whether it is fair, reasonable and adequate.
He just simply can’t shut down everything at this
juncture, and there is no reason to stay this Court’s hand
at this time because of their efforts to go up on cert to
the Supreme Court.
I would like to move on, Your Honor, to address my
actual argument which goes to the format and the scope of
the hearing that we should be holding on the settlement
agreement.
I want to say that this is a time of pride and
pleasure for the United States and for all those attorneys
who represent the United States. We wish to seek an
expeditious hearing on the settlement agreement.
We wish to get on with the clean up of the
Everglades. There have been 3 years of really intense
litigation, of discovery, of briefings, of pleadings, of
depositions that have lasted two weeks, of documents over
9
half a million, and we have come to the end of phase 1. We
are nearly there.
With the state we’ve reached a process, an
agreement that we think we can effectuate this clean up and
it binds those state agencies and the Federal Government and
we will say it here in this courtroom, and we will say it in
our pleadings, these people are not bound. They have all of
their state rights within that process, wholly in contact.
The administrative process in the state goes
forward wholly intact, and I would like to ask the court to
indulge me for one moment because this settlement agreement
is a great thing, and we shouldn’t be robbed of this moment
of pleasure.
There is a great deal of credit that goes to people
of goodwill, men and women of goodwill who brought, after 3
years of bitter fighting, they came together and did this
agreement; people like the U.S. Attorney who brought the
case; the Attorney General who supported him; his assistant
Attorney Generals and the deputies who helped negotiate the
agreement; the Governor, the unanimous bill put forward by
the legislature of Florida in the Marjory Stoneman Douglas
Act to clean up the Everglades; the courage of the South
Florida Water Management Board.
People with deep agricultural interests voted for
this settlement agreement. It is a good thing.
10
These people of goodwill did this, and I think that
anyone who calls it collusive or shabby is simply wrong.
I am supposed to address the format and the scope
of the hearing. The United States believes that we should
be holding a legal hearing of approximately a half a day’s
length.
We would agree to have all the parties heard, Your
Honor. Any party who is a party in this case or proposed
intervenor, we are not going to object to their being heard.
We want our hearing. We want to go forward.
We would seek half of the time for the moving
parties, the United States, the Department of Environmental
Regulation and the South Florida Water Management District.
We would probably want to reserve half of that half
a day for rebuttal. We would propose that the other half be
divided among the commentors on the settlement agreement,
pro and con. They could have the other half.
I need to address, Your Honor, the remaining claims
in this case. These is a motion to dismiss the farm
interests’ amended complaint. There is intervention by
South Dade. There is intervention by the Miccosukee Indians
and the Amended Complaint of the Environmental Intervenors.
We believe that you can hear the settlement
agreement, the fairness hearing, this legal hearing. You
can do that first without prejudice to their rights in that
11
subsequent maybe one single hearing could clean up all of
those issues.
We have no objection to doing that first, if it
pleases the Court. What we he want is we want it done
rapidly.
In regard to the Miccosukee Indians, I believe they
have a representative here today, so I will speak just
briefly as to what I understand we are resolving our
differences with them over their intervention, and we
believe that very, very soon we can file our papers
regarding that, and that it will be much easier for this
court to deal with the Miccosukee Indian intervention.
They want no delay of the settlement agreement
here, and I am authorized to say that nothing in their
filing papers should be interpreted to slow down the
hearing.
We have been two months that we have had this
settlement agreement, and it is of critical concern that is
go forward.
There is no need for an evidentiary hearing. I
would like to point out to the Court that in regard to an
evidentiary hearing, even were this court for some reason to
allow the farm interests, who have a very, very narrow
concern that the Eleventh Circuit allow them in for a
concern that is not implemented in the settlement agreement,
12
even if you would allow them to contest every fact upon
which the settlement agreement in its introduction and
background seems to be premised, they would not be bound by
your findings.
Those are not findings that have binding affect on
them. They would only go to your assertion of whether you
believe it is fair, reasonable and adequate. This should be
a legal argument presented by the various parties.
The test, as everyone has set out who has filed
papers, is is it fair, is it reasonable, is it adequate?
These are legal arguments.
Among the factors that you will be looking at are
the strength of the case versus the settlement argument.
The complexity, the length and expense of this litigation;
the opposition to the settlement, the opinion of the
Counsil, the state of the proceedings and the amount of the
discovery.
The court will consider the policy implicationss
that favor settlements, especially where you have
governmental agencies protecting the public interest.
If you have no questions, Your Honor, then I would
like to reserve a tiny bit of time to address any issues
that come up by the counsel who follow me.
THE COURT: All right. Thank you, Ms. Ponzoli.
MR. EARL: May it please the Court.
13
THE COURT: We have a consent for the podium.
Shall we hear from the state first before you respond?
MR. EARL: It is at the Judge’s pleasure. Whatever
pleases the Court.
THE COURT: It might be easier for you. You can
respond to the state. Go ahead, sir.
MR. GOUGH: Your Honor, I am Robert Gough from the
Florida Department of Environmental Regulation.
THE COURT: Yes sir.
MR. GOUGH: As usual, Ms. Ponzoli very effectively
and clearly stated the nature of the review, the scope of
review of the proposed settlement agreement, and we are in
full concurrence with what she has stated to the Court
today.
We feel, as does the United States, that it is
urgent that we have a quick fairness hearing on the nature,
on the settlement agreement to determine whether it is fair,
adequate and reasonable, consistent with the law, and that
the factors that the Court considers are well set out in the
briefings and are summerized by Ms. Ponzoli today.
On the question of the stay that’s been requested
by Bob Smith, Robert Smith this morning., we also are opposed
to any stay. We think that time is of the essence, if you
will, in getting on with this.
The Florida legislature, in enacting the Marjory
14
Stoneman Everglades Protection Act, I think reflected their
collective wisdom of the urgency of getting on with
protecting the Everglades and restoring it.
They gave short deadlines for the agencies to take
certain actions and initiating that process, and a stay I
think is not appropriate at this time, particularly in light
of the fact that in the early stages of this litigation,
when we were vigorously at issue with the United States, we
raised the issue of the jurisdiction of this court and you
ordered, you ruled against us on that issue.
In our research, we determined that that wasn’t an
appealable interlocutory order, and we did not participate
in the appeal. I don’t think that issue has been decided by
the Court and need not be revisited at this time. Unless
you have questions--
THE COURT: No. I don’t, sir.
MR. GOUGH: Thank you.
THE COURT: Thank you.
MR. REID: Your Honor, I am Ben Reid from Popham,
Haik, Schnobrich & Kaufman and I represent the District.
Given I haven’t seen any papers by the opposing side on the
issues that we are here on today, I can’t really say
anything other than what the two counsel said before me.
So, with your permission, I would like a minute or
two at the end in case Mr. Earl or someone says something
15
that I think I might have something to respond to.
THE COURT: All right, sir.
MR. REID: Thank you.
THE COURT: We have another state representative.
MR. DREHER: Judge, I am Bob Dreher. I represent
the Conservation Intervenors. I thought it might be more
efficient, with your permission, to speak on the same side
that we support.
We have filed our notice of concurrence in the
motion for approval of the settlement and for a prompt
settlement hearing. I thought, just in terms of efficiency,
it would be better to hear the pros versus the cons.
I am not going to elaborate at length. The
conservation organizations that I represent view that
settlement agreement as a milestone in protecting the
Everglades.
We think there are some aspects that we would have
been happy to improved if we had been signing and approving
the agreement by ourselves, amongst ourselves. That is
always the case, but we are happy with the general balance
of the agreement.
We think it is very essential that the agreement be
heard promptly by the Court and entered into place as an
order so that the settlement can proceed. These are matters
of life and death to the Everglades.
16
I would note that we are intervenors in this case
as are the other defendant intervenors. We stand in a
different position in one critical respect, Your Honor, and
that shouldn’t detain this court.
That is, that we have independent claims from the
government, the Federal Government raised in our complaints
in intervention. Those are valid claims that could be
raised by us independent of this action, and those claims
have not yet been settled.
We are negotiating for settlement of those claims
on the same basis as the settlement agreement which is
before the Court, and my expectation is that we will be
successful in that, but I just wanted to alert the Court to
the fact that we do have independent claims that are not
currently before the Court in the settlement.
And until they are resolved, our complaints, at
least, will not be resolved. That, in our view, is no
reason to hold back in approving the master settlement
agreement between the government agencies.
That clearly is going to be the framework for the
settlement of the action, and we concur that it is an
appropriate settlement and should be entered promptly.
THE COURT: Thank you, sir. Now, I think we are
ready for counsel.
MR. EARL: Your Honor, I am Bill Earl representing,
17
along with Mr. Smith, the EAA farm interests.
In preparing for this hearing, Judge Hoeveler, I
which the Court noticed on the scope and nature of this
court’s consideration of the settlement agreement, I began
my analysis by looking at the law and coming up with the
factors which I would like to talk to the Court about
briefly, and perhaps in a moment, and I had all those tucked
away to present to the Court.
Then I realized, Judge, that there were some
extrodinary circumstances in this case, some special
circumstances which I think to discuss the nature of a
hearing on this settlement agreement, the Court needs to
have before it and understand, and those are primarily in
two areas. I would add a third, based on what counsel has
said recently.
The first introductory one, Your Honor, is the
process is going forward.
This settlement agreement, by its terms, it is not
effective until you sign it, but the process, I can assure
you my clients are spending an awful lot of time in this
with the Water Management District, the DER; the permits are
going; the Swim Plan is going.
Your consideration of this is not delaying the
process at all, and I would suggest that this document is
necessary quickly the parties can change that agreement and
18
sign it tomorrow and have a binding obligation. So your
careful consideration of this, and I would urge you that it
has to be careful, given the circumstances which I will
describe.
Number 1, Judge, is the nature of this document.
This settlement agreement is not just the settlement
agreement. We all know that could take two pages under Rule
41, a notice of dismissal with prejudice and a contract
between these 3 settling parties.
What they have done, Judge, is add on a very
specific, very lengthy, highly targeted EEA Farms Regulatory
Program.
This consists of some 27 pages, Your Honor; the
text. 39 pages of technical appendicies; specific 50 parts
per billion phosphorus limitations, phosphorus standards.
One of the appendicies, Judge, is entitled "EAA
Regulatory Program." That's technical page 51. I think it
is E. So, it is very specifically targeted at the farmers
and, therefore, that is a very special circumstances before
the Court.
It also, Judge, because it does more than settle a
lawsuit, it invokes some rights. It creates and has
created, Your Honor, some causes of action in the farmers
who are really the community that's at issue here in this
settlement agreement.
19
THE COURT: Yes.
MR. EARL: To that end, Judge, we have filed in
this court 3 counterclaims; one specifically directed to the
National Environmental Policy Act, the Farm Land Policy
Protection Act, not about the settlement, Judge.
They can settle. They can clearly do that, but
about the policies and programs and standards set forth in
this document. This 50, 60 page document.
We think, Judge, that is not a matter-- those are
independent lawsuits. That is not a matter to be taken up
at a several hour or several day hearing. That is a
substantive, independent lawsuit which the United States
Supreme Court has said in the Local 93 case versus
Cleveland, intervenors who have lawsuits, independent
actions can continue them, and it is the opinion, Judge,
because it is based on the actions in this violations of
federal law in this document or a determination of whether
federal law has been violated.
This program and the way it was established, Judge,
out of the Sunshine, in secret through a technical advisory
committee from which we asked to participate, were excluded
and couldn't even go to meetings, and still cannot get the
minutes, also creates state causes of action, Judge
Hoeveler, and we filed them in Tallahassee yesterday and
filed a notice and a copy of that complaint.
20
There are 5 or 6 causes of action. The principal
one was the Sunshine one. This was negotiated in 6 months
of secrecy. The specific numbers were agreed upon. This
was then produced at a media circus with Attorney General
Thornburg and Governor Chiles and Secretary Browner and Mr.
Milledge.
It was then presented for, and when you see the
transcript of the governing board meeting of the Water
Management District, and attorney Milledge is here, but it
was basically rubber stamped.
They did not understand where the numbers came
from. There was no presentation. There was no what options
were excluded as the Sunshine Law requires. There are
several other counts, but those are properly vested. The
legality of this process and agreement is properly vested in
the state circuit court and that has been filed.
I bring that up to Your Honor's attention because
obviously the legality of the document is a factor set forth
in the controlling case law.
THE COURT: As you suggest, is that a matter of
concern for me?
MR. EARL: Yes, it is, Your Honor, because one of
the factors you have to rule on, you in this case, because
the United States elected to utilize there is no federal
question or issue, as you know, Judge, because the United
21
States elected to use a state statue, you are sitting, as I
understanding it, as a state circuit judge.
So, I think thank you need to await the state
circuit judge's determination of whether this document and
the process which produced it is, in fact, legal under state
law.
I would also suggest that we are entitled to a full
trial on our 3 accompanying counterclaims as filed in this
court and discovery.
Our intention is not to hold up this Everglades
process. As I told you, it is going forward full bore.
Your withholding specific review and approval, the only
thing that does, Judge, when you review this and approve it,
it turns it from a contract between 3, 4 agencies into a
judgment.
That's a very special process, the United States
Supreme Court tells us, because you are not having a trial.
You are summarily deciding many of these issues. There is
an entitlement, Judge, to an evidentiary hearing, and that's
somewhat ill defined in the law.
THE COURT: What would you have me do?
MR. EARL: I would have you, if they want this
executed immediately, Judge, I would have you direct them to
enter into the contract in compliance with federal law,
state law and then that could be determined. You don't need
22
to put your imprimatur on it immediately.
The other part of this, Judge, which Professor
Levinson -- and I don't know if the court is aware of the
affidavit which was filed with Mr. Smith, Professor
Levinson, along with Arthur England, who I know this court
knows, was one of the reporters and principal authors of the
Florida Administrative Procedures Act. Here is his
affidavit. He's now a professor at Vanderbilt, Judge.
His affidavit tells you that the state action
actions that are in here, Judge, under Florida's APA, which
is very different from the federal APA, I know you are
familiar with the state actions, Florida's APA is very
different because it allows, when a state agency such as
this proposes to take action, Judge, not the decision to
settle, but the policies, the 50 parts per billion, the
other standards, that is proposed action, to wit: someone
who has affected the farmers have to meet that to which
someone affected is entitled to a de novo trial type
hearing.
THE COURT: Would you not still be entitled to
that?
MR. EARL: Yes, but it is meaningless, Judge. When
we brief it, we will provide the transcript to you. I asked
that very question the day the Governing Board of the Water
Management District voted, sir.
23
I said, "we've asked you for a hearing. We are
willing to take our chances in the state administrative
hearing process, and we are entitled to discovery there and
we have an independent hearing officer and it goes up, comes
back. We are willing to take our risk that we can prove
that these standards are too low or arbitrary, whatever they
turn out to be."
THE COURT: Yes.
MR. EARL: I said, "what if there is a conflict
between the numbers, the formulas in this document and what
comes from that state administrative hearing officer, if he
finds that instead of 50 parts per billion, he finds it
should be one hundred parts per billion?"
I was told by the General Counsel, and I will
provide the Court with a transcript, that they tried to
negotiate that with the United States. If there was a
conflict, a trial type hearing process would control under
the state administrative process.
The United States rejected that. The General
Counsel said, "therefore, we now have that it goes through
this alternative process, and if there is a conflict, this
document controls, or we eventually bring right back to
Judge Hoeveler."
I then, at a meeting next week with the counsel for
the United States, I said, "we would agree to a stipulation
24
and request if you provide that the state administrative
process controls on a specific number or any other conflict,
we will abide by that." That's what we want, but they would
not agree with that.
THE COURT: Maybe I will agree to that.
MR. EARL: If we have a clear order, Judge,
suggesting, stating that our rights in the administrative
process are controlled by the outcome of that process, we
are happy.
We have no problems before you with this agreement
otherwise, That's what we want, Judge. We want to get it
out of your court and into the proper state administrative
proceeding process.
THE COURT: All right. I am going to have to cut
you off in a moment or two.
MR. REID: Okay. One other special circumstance.
I know the court has had a tangential look at it, is the
secrecy, Judge. There is no more secrecy around this
document and the underlying documents and the reasons and
the meetings and the documents than there is in the B-2
Bomber Program.
We filed a public records suit in state court. You
know it was brought down to you. You sent it back. The
circuit judge in Tallahassee ordered that the documents be
provided. The DER has now appealed that delaying it to the
25
Florida Supreme Court.
In April, Judge, we wrote to the Department of
Justice and said, "could we please have all of the documents
relating to the settlement discussions?"
They said, no, and took us through the elaborate
process. We last week were forced to file a FOIA action.
They won't give them to us either, Judge.
So special circumstances, Judge, we would ask you
to help us on that issue today; to order these parties to
within 20 days produce all the documents relating to this
settlement agreement, both the state and federal parties
before you.
Then, Judge, we will be able to respond and
proceed.
THE COURT: All right, sir.
MR. EARL: Judge, the remaining issues, I know your
time is short and you have to get to the investiture. We
will provide it in our brief, Judge. I would suggest that
our brief be due. We have a pending request for extension,
but if the court is inclined to break down this veil of
secrecy, we would suggest we would like to have the
documents first. Then we will provide the brief 20 days
thereafter.
THE COURT: All right. Thank you, sir.
MR. SMITH: May I have another 30 seconds?
26
THE COURT: In a moment, Mr. Smith. I see a hand
in the back.
MR. BOHRER: Your Honor, Sandy Bohrer. I represent
Waterthe Pahokee Water Control District. I think I can do
this in a moment or two.
THE COURT: Yes. You are a very, very Johnny come
lately, aren't you?
MR. BOHRER: We are, Your Honor. We made a
mistake, I guess, with my agency. They thought that the
state agencies would follow Florida law in conducting
themselves. We believe they haven't.
We have filed in this Court, Your Honor, a notice
of a state court automatic stay under Florida law, not
because it binds this court necessarily, but because we want
this court to know how the South Florida Management District
is bound.
Basically, Your Honor, we are not a party here. We
are not an intervenor. We did not propose to intervene or
anything like that. If I were Ms. Ponzoli, I would be full
of pride and pleasure, too, because I got state agencies to
not only roll over in the case but to violate, and I mean
violate -- I mean this in all seriousness -- Florida law in
such a serious manner, if anybody cared, it would be
criminal violations of our Sunshine Law.
We have a written confidentiality agreement that
27
the state agreed to, where they agreed to do things in
private that under Florida's government Sunshine Law have to
be done in public.
We have, as you heard from Mr. Earl before and will
see in his papers, an Administrative Procedures Act that
they just haven't followed, but, Your Honor, you have seen
our state papers, and we really ask if you want to cut to
it, what I would like, what my client would like is when we
finally have a hearing, an opportunity to show you how we
would like a final order on this settlement to permit and
provide for the state administrative process and the Court
proceedings that relate to it, to determine those and our
how our rights are adjudicated.
THE COURT: I will certainly take that under
consideration.
MR. BOHRER: So at this point, with all the time
constraints here, we would like an opportunity, when you
finally consider what to do with the settlement agreement,
to show you, for example, we would ask the Court to defer to
the Fourth District Court of Appeal where the South Florida
Water Management District has asked that our stay be
vacated.
The stay, by the way, prevents them from being here
today to do anything, They have asked it be vacated. The
Fourth District hasn't ruled; things like that. We would
28
like the Court to do it either in paper a hearing or one or
the other to present those positions.
THE COURT: All right. All right. Thank you.
THE COURT: Now, I have got two other bidders for
the last 5 minutes. Mr. Smith, you wanted what, 30 seconds?
MR. SMITH: 30 seconds.
THE COURT: You've got it.
MR. SMITH: I am not contradicting Mr. Earl, my
brother, when I say that his submission to you about what
you ought to do is only an assumption because we are
oblidged to make that assumption Your Honor has
jurisdiction.
THE COURT: Yes. I understand.
MR. SMITH: I want you to understand this clearly,
that the impact that this federal judicial proceeding has
can't be cured by an order that says, "you all go to state
court. You all go to your administrative. You are not
bound by this."
Article 3 says under the federalism under which
this country was founded that we are entitled to have those
people make up their minds in a particular governmental
process proscribed by the State of Florida in Chapter 120.
We are entitled, as citizens, not to have a federal
judge coerce them or bind them whatever the federal judge
says about its affect upon us. We are concerned about your
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binding them. Thank you.
THE COURT: Let me say this to you: So for as I
know, I haven't yet coerced anybody. If they want to try
this lawsuit, brought by the Federal Government for
complaints that the Federal Government has about its
property, I will be happy to try this lawsuit.
If they don't want to settle the case, they don't
have to. And I want to assure you, I did not suggest to
anybody that this case be settled.
I would be very interested in seeing it tried.
That's all I have to say on that point. Yes, sir. You have
about 3 minutes.
MR. BLANK: Thank you, Your Honor. Robert Blank
representing the cities of Clewiston and Belle Glade. I
know the time is short.
I would just like to outline for the Court we also
agree that a fairness hearing is definitely needed on the
settlement agreement. There are 5 factors that we believe
are appropriate at that hearing.
First, whether or not the court has subject matter
jurisdiction to enter the decree; whether the court has the
authority to enter the decree which we view as totally
separate from subject matter jurisdiction and, thirdly, and
perhaps more importantly whether the settlement agreement
prejudiced the rights of non-consenting parties, and that's
30
this position we find oursselves in.
THE COURT: That's the part that concerns me the
most about this settlement agreement because, obviously,
there are different interests in this case and you
represent, as do Mr. Smith and Mr. Earl and others,
represent parties who will be affected by the settlement
agreement.
That's why I am particularly interested in what the
state administrative procedures, what role those procedures
will play in this case.
As far as jurisdiction is concerned, I am going to
take a good look at what Mr. Smith filed, but I, frankly,
think we've been over that.
I think we've decided the question of jurisdiction
and my recollection is that we spoke to that in earlier
orders, but I am concerned about what you are concerned
about. I want to make sure that those interests are
protected.
MR. BLANK: Your Honor, we would like an
evidentiary hearing on that. We think it is required by the
law. We would like to be able to present witnesses to show
the Court how our interests are affected.
THE COURT: Well, I may just do that. I haven't
decided yet, but what else would you like to add?
MR. BLANK: Also the legality of the agreement is
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an issue at a fairness hearing, We are very much
concerned--
THE COURT: Because of the state sunshine laws?
MR. BLANK: Parrtly because of state law and also
federal law issues. And perhaps that may be cured by what
Your Honor was talking about, if there is an order entered,
providing that the state 120 process controls over any
conflicts between the outcome of the process and the
settlement agreement, we would be very pleased to see them.
THE COURT: All right, sir.
MR. BLANK Thank you.
THE COURT: Thank you. I am sorry not to give you
more time, but let me give you my impressions. One is that
while Mr. Smith has made certainly an excellent and
persuasive argument, and I will give that further
consideration, I don't think that I am going to change my
position on the basic jurisdiction of this court, nor do I
think that I am going to enter a stay.
I haven't decided that, but I will certainly get to
you as quickly as I can. Maybe even today on that point.
I do think we need a hearing. I do think the
parties need to be heard on the various aspects of the
settlement agreement, and to that end, we can devote a half
a day certainly, or even a whole day certainly, but it is
going to have to be some Friday.
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So, I will look to that. In the meantime, I will
see whatever other papers are being submitted, and if I need
anything further, I will include that in an order which I
will enter next week.
Having said that, it is now a quarter of. I have
got to adjourn, and I do thank you all very much.
DATE: ___________________________
I, Jerald M. Meyers, do hereby certify that the foregoing
transcript is a true and accurate transcription of my
stenographic notes.
____________________________________
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