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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 November 1, 1989 |
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| TRANSCRIPT OF HEARING PROCEEDINGS
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 APPEARANCES:
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November 1, 1989
This is the case of the USA versus South Florida Water Management District, et al.
matter that is in trial and we were working on the instructions.
on this case, but I want to take enough time to keep us moving, and make some decisions on the matters that are pending.
each counsel as he or she speaks to announce himself or herself.
believe, that are pending. Let’s take care of those first.
Water Management District. To answer your most important question, we have not settled the case despite all reasonable efforts of my client.
We are asking for 129.2.b certification.
of Engineers represented by the United States Attorney’s
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Office, in essence, the Plaintiff Corps is saying that the District and Corps structures are discharging waters in the Everglades that violate state law.
They are saying that the Corps and the District structures have been operating without state permits and therefore should go back to make application for the permits.
Engineers to take. They are saying that the discharge through Corps structures, their own structures, constitute a nuisance.
and I will not rehash all of the arguments that I made when I was before you while ago last July.
be on this side of the courtroom. They are a defendant. We need them there, as a defendant, so that we are not put between the rock and a hard place.
mandates. We have to have them here self-standing, and articulating their own positions, and if we try the case, you will want them here speaking through their own lawyer so that you know exactly where they stand on these vital
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issues.
courtroom.
said to us, go to something different or consistent with what is contemplated. At all, if the Corps of Engineers is represented by the Plaintiff, by the United States Attorney’s office, simply that if you order us to do what Mr. Leitinen wants them to do, and us to do.
Corps is a Plaintiff in this suit. It just defies all legal hygiene in my opinion.
that regard, we are kind of like brother Earl, we willing to litigate it to the 11th Circuit only.
is a reasonable error and reasonable probability of error, it’s an extraordinary case.
document work goes on, and there will be no prejudice, the case will be moving along in this normal pace, and we will then find out where this vital party sits in the courtroom.
it is reversible error, and we may have to do all of this
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over again.
time, and Mr. Leitinen and I got into a bit of a discussion of whether he did or did not represent to the Court.
Jacksonville District. Let’s not speculated. Mr. Leitinen said, if defense counsel believes that Col. Herndon is prepared to testify that Mr. Herndon wants a separate lawyer, then he should have brought Col. Herndon in here, but he knows with respect to the truth of this matter that the Corps of Engineers is being urged by him to a defendant, simply to deal with publicity aspect of this particular lawsuit, to identify somebody else.
he wants the Colonel to come in here, he will pick up the telephone and tell us.
additional complications can come about if you bring in the Corps as a Defendant because we are prepared to produce everything under Rule 26, et cetera.
fully on board, a happy Plaintiff, and they were representing him.
do is to depose the colonel. We took him up on that. We
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called the United States Attorneys Office saying that we would like to talk to him and they said, no, you can’t.
Colonel Herndon, and they replied, no, you can’t.
Temporary Protective Order. So, that should go about two more years to keep us from talking to Colonel Herndon.
prepared to bring him in court and have a two hour session in open court, if we could.
the middle of probably the most important pollution planing program in the history of South Florida, the Swim Plan for the Everglades.
Court as an exhibit. I don’t know how many inches high it is, but it is enormously complicated, and it is a thorough document addressing the every issues in this lawsuit having to do with nutrients, and water balance, the hydro period.
form giving you a flavor for the complexities in the case.
States Attorney’s Office, is a very active and concerned Plaintiff, is very concerned about the environment and
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hydro period, and all of issues they raised.
It is three pages. Their concern about flood control and their original mandate under the various Congressional statutes, their concern is that the District may be going too far.
Ocheechobee and the Water Conservation areas should consider the various purposes authorized by Congress.
obtained, and should any deviations be needed from the original Central and Southern Florida Project purposes, an existing authorized modification is necessary.
which is telling us, be careful. There are clear purposes, clear mandated, clear structures that you ought to be following in South Florida in implementing this Swim Plan and do not get too carried away with the environmental protection issues, flood control and your other statutory obligations.
that as we talk about what relief there is in this case.
Corps. We are talking of structures that are operated by
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the Corps, but most importantly, we are talking about a governmental agency, a state agency, which is at the behest of the Court.
is reasonable doubt as to this novel issue. The Corps’ involvement in the case, it is an extraordinary case with an important question. We don’t want to go off on the wrong track and we will pursue in good faith and diligently the discovery while an appeal is taking place.
can get access to the Corps people?
that we can raise some of these issues, but it goes really beyond that.
one thing to say that we can depose people and put them under cross examination to try to get from them certain facts and oppositions. However, it is quite another to have them fully fledged as a party defendant in the case expressing their needs and their desires.
Corps is the United States.
federal agencies with diametrically opposed and frequently expressed and publicly expressed interests are
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represented by the same lawyer. There is no question that the courts have said that you have an Article 3 controversy and that two agencies can be in court on opposing sides.
office represents both of these federal agencies.
project and is the most essential agency in the whole debate. They are not before the Court.
proved wrong, we will admit to it and we will back off, but we are quite confident that we are not wrong.
it just doesn’t make sense if the Corps is making those contentions.
Government.
the opposing District’s motion for certification.
have a final judgment role that can only be circumvented in extraordinary circumstances. There is three criteria to look at to determine whether a motion meets this high burden. Will it materially advance the ultimate
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termination of the litigation, and is it a controlling question of law, and are there substantial grounds for differences of opinion?
interlocutory appeal of a motion to join the Corps, an entity that is already a party before this Court.
Corps will not materially advance the ultimate termination of the litigation because the Corps is already here.
question of law because the corps is only here.
substantial – there is no substantial grounds for differences of opinion on the issues of enjoinder of the Corps.
entities that are already parties and that is exactly what affirmative defenses are for.
indispensability of the Corps in this action. The Corps is already a party to this action. It is bound. It is here. And it is available.
susceptibility are irrelevant to the question of an interlocutory appeal.
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this motion. No more of this Court’s time can be wasted on this. And clearly, none of the Court of Appeals time merits consideration of this question because, in essence, as you said before, this is a fiction.
who wishes to speak to this point?
of City of Belle Glades. I would only support the District. Bell Glades exists because of the Corps of Engineers.
conservation intervenors. We would agree with the United States position that the Corps is already here and that there is nothing to be gained, and in fact, it would distract this litigation for us to have to go to deal with an appeal at this time, it wouldn’t advance the case.
everybody who wants to be heard on that point. That first point.
States. With the single exception of this Motion for Certification, judge, all the matters that are before the
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Court this morning center on intervention motions to limit intervention and this present motion to Strike.
felling of deja vu. We hope that this will be the last time that we will spend time on looking at who will be the parties to this particular litigation.
hope that you will rule on them because we believe that the proposed intervenors will try to buttress their appeal with these particular exhibits.
magazine and newspaper articles that are attached to the agricultural interest’s Motion to Intervene.
Clewiston’s Motion to Intervene.
and 50 pages of the agricultural interest exhibits, nor have we moved to strike the other 250 pages attached to Clewiston’s.
them offensive for the following reasons.
hearsay. They contain lay witnesses’ opinions offered where expert witnesses’ opinions can be called for.
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The magazine and the newspaper articles simply are not valid evidence. They are not trustworthy. They contain a patch work of truths, half-truths and complete distortions.
continue to come before the Court and offer as truth those magazine articles, I think that they will have to take them all as being true, and the Federal Government will be then in a wonderful position for a Motion for Summary Judgment.
supporting a phenomenal number of factual allegations that I have to prove in the case.
Anderson/Rackley’s affidavit, the is the general manager and the vice president of the Sugar Cane Industry, and have been attending Swim Meetings, he has attended and discussed a the draft plan with his office, and with his own experts, he offers their opinions as his own, and the things that they have said as his own.
phosphorous standard is in fact a new water quality standard.
Rackeley swears for the United States as to what it is that we are seeking in litigation.
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and our prayers for relief at the end of that Amended Complaint asks for the exact relief and that will be a very general prayer. We have been in fact criticized very specifically for that point.
Florida Sugar Industry, and a former DER enforcement officer. He testified that the phosphorous numerical standard presents a new water criteria.
Swim and talks of the impact nuisance there will be on EAA, and again, swears for the United States.
giving us his legal conclusions that the District is unable to adequately represent the agricultural interest telling us that there is a substantial interference with the Swim process.
He has an affidavit that contains double hearsay.
your honor, because he testifies that he heard Mr. Thompson, who is the head attorney for the Department of Environment Regulation, had heard Mr. Thompson say that I had said, in settlement discussions, that DER wanted to settle with the United States.
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think that I have to address what was said in settlement discussions.
was discussed that in order to settle this lawsuit, the sugar industry would have to be brought under a meaningful regulation. That big sugar would have to get its agricultural pollution under control.
particular settlement discussion.
working.
but I a straining to hear what you are saying. Pull that other microphone near to you.
subject was about, quote big sugar close quote.
regard to the Clewiston motion to Intervene, Mr. Perry is the Mayor for Clewiston. He, again, gives us the legal conclusion that Clewiston has a unique and substantial
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interest and a particular interest that can only be represented individually in this lawsuit.
witness testimony without qualifying as an expert that the effect on Clewiston in this lawsuit is different from that of Belle Glades, they are more dependent on agriculture than are other communities.
newspaper articles. We consider them important in regard, particularly, to the appeal.
Clewiston.
City of Clewiston. I will not take any of the Court’s time. I say this because the affidavit that was submitted, incidentally, the mayor of Clewiston is the now the Honorable Frank Jones who is here today and not Mayor Perry.
providing the affidavit was to show the clear interest of the City and not as an evidentiary matter.
Earl. I appear today, your honor, as I have before you in
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the past, for Roth Farms, Bearsley Farms, WKB Farms and three agricultural associations representing agricultural interests in the Everglades Agricultural area.
Palm Beach County Farm Bureau and the Florida Fruit and Vegetable Association.
11th Circuit, the issue of, do you need evidence to support motion to intervene is unsettled.
says that notions to intervene are to be decided on the basis of well founded pleadings and motions.
view, saying that in some cases that you need to have an evidentiary basis for it.
old fifth circuit, which in the 1960s, where there were desegregation cases, you had a lots of opposing groups intervening, they said in those special circumstances, evidence may be required on some issues.
have to be considered under the Rule of Evidence, and admissible under the Rule of Evidence is unclear.
I will describe to the Court, that each of them are
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admissible for the purposes offered, and if not, then we ask the Court to respectfully consider the representations in them just as you would in the Motion to Intervene a memorandum as the Court would normally consider.
if I may, I would just like to take three illustrative instances. If I may approach the bench?
Your honor, this is a Fort Lauderdale Sun Sentinel article, dated September 6, 1989, after the Court’s ruling on intervention.
saying, basically, we are seeking a higher water quality standard.
Mr. Leitinen, when we was talking to Fort Lauderdale Sun Sentinel reporter was telling the truth, or the truth of what he is saying, but the fact that that statement was made by Mr. Leithinen.
the prior representations to this Court regarding the purpose. The United States has consistently represented to this Court. All of this case is about is enforcing existing regulations, it doesn’t involve new regulations.
in isolation, but the massive articles, quoting Mr. Leitinen and his staff that indicate that, at least, these reporters believe that Mr. Leitinen made that statement.
these quotes, I might note. We offer that to show that these statements were made.
also suggest that these could be considered admissions against the interest of United States which, again, wouldn’t be hearsay.
affidavits of Mr. Barber, and if I may approach the bench?
Mr. Barber is a lay witness. I would suggest to the Court that this Paragraph 1 reflects his personal knowledge of the facts and circumstances.
qualify him as an expert. He has a bachelor of science and a master science in biology Between 1980 and 1984 and he has served as a Northeast District Enforcement Chief for the Florida Department of Environmental Regulation.
specialist district biologist and as an environmental
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specialist. In these capacities, I was required to and did interpret and apply new and existing environmental regulations on behalf of the State of Florida.
vice president of environmental relations, I am responsible for interpreting and determining the impact of new and existing environmental regulations.
District’s August 9, 1989, Swim Plan and am familiar with its policies, conclusion and impacts upon the league and its members.
Paragraph 6, Page 3.
the Everglades Swim Plan establishes new numeric water quality criteria, or objectives, for phosphorous discharge from the EAA.
proposes a limit of point 03 parts per million of phosphorous.
goals or limits applicable to EAA farming discharges, or the farming discharges, generally in Florida.
environmental affairs, and has the years of experience with
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the state agency requiring the regulations, is not competent to determine and to provide an affidavit as to what the impacts are and whether there are or not existing regulations, then nobody is.
about Mr. Rackeley’s affidavit and Mr. Barber’s affidavit coming to legal conclusions.
is a legal counsel, his affidavit, which provides, your honor, specifically the point that there are no existing regulations numeric phosphorous standards which is really the issue to be addressing in the intervention.
remembers is that the intervenors, the agricultural people, didn’t have a legally cognizably interest because this case as was represented by the United States the Court, repeatedly, is about enforcing existing regulations.
establish that in fact the purpose of this suit, your honor, is to establish new regulations.
purpose to be, but the purpose is delineated in the pleadings.
issue of whether or not the state is requiring compliance
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with its existing laws, then of course, we will not get into new requirements.
law also addresses what is the practical effect of the litigation?
saying that the real target, after interviewing Mr. Leitinen, is agricultural in EAA, or whether it is some other articles or some of the affidavits that you have, I would submit to you that the practical effect, and we will argue the intervention, that the practical effect of this lawsuit and its use and misuse by the United States, is to compel two things from the Water Management District judge, a numeric phosphorous standard, and they will settle the suit if they get that, and the acquisition or the taking of agricultural lands in the EAA for a buffer zone.
statements, they are very different from what you have been told about in this suit. They establish, I believe, or a fair reading of them establishes that. This suit could be settled. And this suit, or this action before you, this morass that have before you, it is being used as a hammer to compel these state agencies to adopt new standards not in accordance with –
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I’m not really interested in what cases are being tried in the newspaper, or the magazines or on television.
according the pleadings, and if these other items that you are talking about are not in this case, but you seek to intervene because you think they will be, then may be you should wait until they are in this case, but they are not now, and they probably never will be.
discussions are really not something that I either should be, or need to be concerned about.
beyond that which is it seems to be asking for in its pleadings, I guess that is something that I am not, and shouldn’t be privy too. Should I?
privy to it by espousing and issuing press releases and making it publicly available once they were required to settle it.
there are two counts in those pleadings, your honor. The amended complaint, not the original complaint, but the amended one, that provides and even on the face of the pleadings in interest, EAA and agricultural.
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claim to shut down those pumps, and the drain, the Everglades Agricultural Area.
7th Circuit, the Ford Motor Company case, even if you don’t have a direct property interest, in that case, it is a property owner who is trying to stop a railroad.
sighting for its manufacturing plant, didn’t own or did not have property interest. The Appellate Court in that case, reversed the District Court that excluded Ford Motor Company, ruling, that if you operations are dependent upon some service, in that case, the railroad service, and in this case the a pumping service from the district, you ought to be in that litigation so that you can defend your interests.
in the amended complaint and that is the Loxahachee contract.
count in the first and the second amended complaints, that contract provides, the agreement with the Fish and Wildlife Service it provides that wildlife management first purposes shall be, and this is not and exact quote, but subservient to the primary purposes, flood control and ancillary purposes for which the project is based and that
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Water Conservation Area is set aside.
acquisitions, in that area, to justify EAA agricultural productions used to justify the acquisition, and that is essential to our flood protection.
it now. Any other arguments? Mr. Earl, you appeared before whom now, again, the agricultural group.
representing, through other counsel, the City of Bell Glades, Mr. Ankerson and Mr. Peeples of our firm is also representing the City of Clewiston.
comment on what has been said?
make is that the Swim Process is a totally separate proceeding that is going on in State Court. It has nothing directly to do with this litigation.
new standards, new regulations, you have understood what I have said. I understand that you will hold me to what I have represented and that we will proceed along those
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lines.
does not necessarily impact what goes on here.
live and stand by what the pleadings have said and the representations that we have made to the Court.
imposition of conditions. I will be glad to hear, briefly, in that connection as well.
time left.
finished the hearing the motions to intervene, because I didn’t do my opposition if you did.
intervention of Clewiston, the United States opposes it because it is untimely, because they have the identical parties with the City of Belle Glades, they have the identical interest and they have the identical counsel.
wear three hats in this litigation.
already, and they are trying to wear a hat for Clewiston
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and trying to wear one for the agricultural intervenors.
the United States, has already produced something like 300 thousand documents.
how many they produced, but may be pushing another 200 thousand. We are looking at close to a half a million documents that have already been produced. When they came to the Park and the Loxahatchee, they came as the Sugar Cane League under a FOIA request.
the two were coextensive. They are all the same documents, they are all documents that in any way would be relevant to this lawsuit.
said, take what you want for Belle Glades, you are here, we are doing this one time.
not pulling for Belle Glades. So that I assume that they are not pulling Clewiston either.
in.
and they will cause difficulties that cannot be dealt with
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causing substantial prejudice to the parties that are already here.
order, apparently, believing that they can litigate all of those economic interests that the United States understood the Court to hold outside this litigation.
how we would go. They think that they will come in and litigate all of this.
bounds of anything that is reasonable.
been impassioned pleas regarding evolving facts, extrajudicial statements, inadequate representation by the district, misrepresentations by my office.
grounds to come back in.
motion for reconsideration.
they didn’t do that for very specific grounds.
reconsideration they have to show you material change in what has gone on for you to listen to their problem again, they are already in the 11th Circuit on a legal issue, they
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have to offer you something that is really new.
those were available to then from the beginning of this lawsuit.
asserted them the first time they tried to come in.
now. Substantively they are not good claims. The nuisance claim is a scare tactic. The United States has federal obligations to flood control. We cannot shut down all of those pumps and flood out all of those people, that is just a scare tactic.
know that they have a heavy burden under federal law that they have to show that they were a specific and intended beneficiary, that they have individual enforceable rights, and even if they were a party who received substantial financial benefit, they would have to show that they were in privity of contract under that Loxahachee lease.
cannot meet it substantively.
have pointed out that this is something in a separate proceeding.
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they dispute that because the district in that Swim Plan has made concessions to certain factual points in this case.
the District and the United States would be compelled to litigate whether the sun rose in the east and set in the west because you cannot concede anything even if everybody knows it is true.
phosphorous, that is within that separate process putting a practical standard on a numerical, on a narrative written standard.
presently in this litigation. We are not asking for a number. We are asking for non-degradation. We are asking that there be no more damage as compelled under the state statutes.
area that I find very offensive from the agricultural interests, because the United States has never sought a Public Works solution.
anything other than some very brought equitable relief.
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proceeding is a Public Works solution. It is not our concept. It is the State’s concept.
source if we have our drothers. There has been no material change in the law of the facts.
Court to reconsider this. The jurisdiction lies in the 11th Circuit.
it. If you were inclined to grant it, we would have to have a remand from the 11th Circuit before it could be granted here.
Glades so that I conclude everything at one time?
Belle Glades, as I said before, we understood the Court in the July 25th order to have put manageable limits on the case, that you acknowledged that we were saying that the Federal Government was alleging that there was a failure to enforce state law to protect the Everglades and I am using your words, because I don’t want to put my spin on them and then something comes out wrong.
pollution and consequent degradation of water quality in
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Loxahachee and Everglades.
promulgated State law.
violated the water quality laws nor exercised their regulatory in inadequately.
said to the extent that they are seeking to challenge the validity of state law or to avoid enforcement those issues are outside of this case.
economic issues. You allowed Belle Glades to come in and you said that they have concerns with hydrology, flood control and water supply and you recognized that as a municipality they were charged with compliance of existing statutes and regulations.
interest, and while you acknowledge that they had economic interest is not the United States understanding that you open the Pandora’s Box of all of those economic concerns that are floating all around and all of Duda and Talisman and all of those other areas that lie, the packers, the shippers, and everybody who participate in agriculture that you didn’t open up all of those issues within this litigation.
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7000. Judge, you have to understand that if you put Clewiston and Bell Glades together, you are still, something like eight or nine thousand people short of the University Florida’s students that is how small these little towns are. (Go to Page 35)
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and they say they want to litigate everything. They clearly believe they can litigate everything that you told the agricultural interests they couldn’t.
principal parties. The Water Management District and the United States have opposed the expantion of the issues. We seek to limit Belle Glade and we seek to limit Clewiston it for any reason you let them in.
the it wishes. We have done so. We put geographic limits. We put policy limits. We asked no relief against those little town.
hold them to those narrow interest that you allowed Belle Glade to come in and to keep out the others.
conceptual framework on this case, Judge Hoeveler, and why we feel it is so important that you keep this managed and controlled and keep these people out.
in a very special window of time, and in this window we can see all the damage that we have done, and it is simply true that there is a lot of blame to spread around, but in this
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window we know with reasonable certainty what is going to happen in the future. We kow.
what is going to happen. We know that the widow for some species is totally closed. We knoww for others it will close before this litigation is finished, no matter how rapidly we go forth.
wide the window is. We do not know how long we have to save the remnents. It is in the interests of the state, it is in the interests of the Federal Government that there be some economy of effort and that we move as rapidly toward resolution as we can.
drag it out, which would be their greatest desire because that is to their benefit and the window may irrevocablly close for the remnents of the Everglades that we have left. So we ask you to keep them out. The ones you let in, we ask you limit. Thank you.
the district. I would like at this time to address our motion to dismiss. The second motion to intervene non-jurisdictional. I believe the jurisdictional issues can be discussed first, if that's all right with the court.
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opportunity to respond to the United States Attorney.
I feel very strongly about making this point right now because we didn’t realize when we filed our opposition to the second motion to intervene that in fact it was a 60-B motion that was being filed. It wasn’t denominated as such and wasn’t set out as such. I would like very briefly to address it.
District.
still not said specifically that this is a 60-B motion but they do quote from two parts of Rule 60-B. They quote from the 60-B subsection 2 and from Rule 60-B subsection 3.
that the Court lacks jurisdiction in general. It is a very general proposition, a very hard and fast proposition over the second motion to intervene because the notice of appeal was filed either on the same day or shortly thereafter and all the matters raised in the first motion to intervene are
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now in the Eleventh Circuit and this court lacks jurisdiction over them.
with regard to that before the court. There are only two exceptions to that rule. One is the timely Rule 59 motion or as courts sometime do, they analygize a motion to reconsider as a 59-E motion like a motion for a new trial even though, of course, we don’t have a new trial here.
denial of intervention as in effect a final order or final judgment. It is immediately appealable under the final judgment rule.
reconsider and they have not argued that in fact it was a motion to reconsider. So that exception is not in the picture.
by the former Fifth Circuit and present Eleventh Circuit which says that for a 60-B motion a court, a district court has the jurisdiction to deny such a motion, of if the court is inclined to grant it, the court can so state and the moving party can petition to the Eleventh circuit to remand the case so that the court can consider the 60-B motions.
cases where that’s come up. For example, a judgment is
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entered. A notice of appeal is filed. Several months later, say it is a diversity case, the state courts change the law in favor of the party that won.
when the notice of appeal was filed. It doesn’t make any sense for the Court of Appeals to consider the case if there is new law.
decide. He is more familiar with the trial whether it makes sense to reconsider the judgment. So that’s the rational for this rule.
nothing new really that occurred between the time the court ruled on July 25th and the filing of the notice of appeal. They have made their choice. They want to be in the Eleventh Circuit. That’s where they should be, instead of trying to flight this same motion in both courts.
second motion to intervene, it now has to. It doesn’t have any power to entertain this new evidence for a motion to reconsider. It has to meet the rather stringent standards of Rule 60 (b) (2) or 60 (b) (3) and under 60 (b) (2), one of the standards is the evidence has to exist before the judgment or before the July 25th order in this case.
significantly different about this case now, after the July 25th order, is the swim plan that came out at the beginning of August, the draftsman plan. That couldn’t have existed, of course, before the judgment because it came out after the July 25th order. So, of course, they cannot rely on that as being newly discovered evidence of the purposes of Rule 60 (b) (2) .
event, is it?
Under 60 (b) (3) , they have to show that there has been a misrepresentation by the opposing party. Now, they claim we’ve misrepresented things because in our first motion, in their first motion to intervene, we opposed it by saying "well, we have the same interests in this lawsuit they do. We want it dismissed and we are going to deny there is any liability on our part for pollution of the Everglades."
this case. Now they are saying because the swim plan came out that we misrepresented our position. We are agreeing with the facts as the Government poses them and somehow that creates a misrepresentation on our part.
court to reopen the judgment under 60 (b) (3) then that sort of fineness of statement by the parties as to what is going
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on in the case.
said that it basically takes a sabotage of the judicial machinery, for example, by hiding evidence during discovery.
documents from our environmental sciences department. Those are the people who wrote the studies the swim plan was based on. We gave all that to the agricultural intervenors before the July 25th order was issued.
to that the swim plan came out saying the things it did because some of the things that are in the swim plan have been said by district personnel in the past in their reports. We gave all those reports and the underlying documentation to the other side.
in what you are saying, but I have a very limited amount of time. As a matter of fact, I am over time now. I understand that you object to the intervention motion. That’s the sum a substance of it.
then I will be happy to sit down, and that is with regard to the third party contract issue, it is true that the issue over the license agreement for the Loxahatchee refuge was not interjected in this case until the amended complaint was
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filed, but that amended complaint was filed in December so that if they wanted to raise that, that was after they filed their first motion to intervene, if they want to interject that, they had plenty of time to do that. There is no excuse for raising that or the nuisance claim at this time. Thank you.
not going to hear any motions to dismiss today. So unless there is somebody who wants to speak briefly to this question of intervention again –
of Belle Glade. We have not had the opportunity yet to respond to the motions to oppose the conditions. We’d like to have a few moments to do that.
because, unfortunately, I am in a case that has gone a little longer than I had anticipated and we are trying to get to the jury today.
Peoples from the firm I am of Peoples, Earl & Blank. Very briefly on behalf of the City of Clewiston, I am surprised I suppose that the United States Attorney gages its interest in a municipality based upon its size.
I would remind her that without the flood control protection
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that exists today, the 1928 storm would kill 28 percent of the people in the City of Clewiston. So you can therefore, understand the size of the problem, the City of Clewiston does not relate to her concern about interests being related to the number of people in the municipality.
completely to this point that on September 5th, by stipulation, the intervening conservation organizations have consented to the intervention permissively of Clewiston, and a very precise stipulation has been entered into which covers every point raised by the United States Attorney.
municipality of Belle Glade and Clewiston on oral arguments, hearings, depositions, discovery conferences, all due dates will be the same and even have gone to the trouble of agreeing that in those cases where the interests of the two municipalities differ, that we will combine those differences in a single pleading.
intervention of the city of Clewiston will not make on ripple on a burden on this litigation. It will provide the opportunity for the city to have its interests represented. With respect to timeliness, Your Honor, no material changes in this litigation have occurred since the granting of the intervention of Clewiston. I think the proceedings
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today make that quite clear. I would answer any questions, if you have them.
Belle Glade, Tom Ankersen. I would like to acknowledge the mayor of Belle Glade, the Honorable Tom Altman and the city attorney John Baker who came down here in support of Belle Glade.
here and the city attorney is also here.
on the imposition of conditions really isn’t whether or not the court can now seek to or can now limit Belle Glade intervention.
to limit Belle Glades intervention and they did not; whether the court intended to do so in its July 25th order, and it did not and whether it is necessary to do o now.
seeking to limit Belle Glade have suggested nothing that has changed which would otherwise change Belle Glades intervention in this matter other than some insinuations regarding Belle Glades representation of surrogate
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representations of agricultural interests.
city attorney they are very sensitive to that. Belle Glade is its own man, so to speak, and is in this litigation as a result of being its own person.
you to you language in that order, Your Honor, which says, "while the existing defendants are state agencies with narrow environment and water related interests, the city’s interests are the social, economic and other interests of a community of approximately 18,000."
the district and DER could not adequately represent Belle Glade on. Yet the plaintiff in the district would now foreclose Belle Glade from representing those interests to this court in this litigation.
historical reliance of Belle Glade on the flood control project. That pervades the community and society of Belle Glade and that needs to be heard in this case, Your Honor.
about the economic interests of agriculture. We are talking about the derivative economic interests of municipality, its tax base, its employment base, its ability to provide services and so forth, because if the plaintiff’s abatement
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suit is correct, and the farmers are gone, the City of Belle Glade will still be here, Hour Honor.
the health, safety and welfare of its citizens, and that is its statutory charge, I would commend the Reserve Mining case to you for some discussion on that.
economic difference between the private sector and the municipality. We don’t think that it will burden the court to hear those interests.
its nuisance claim, Your Honor, but its nuisance claim is there and the nuisance is nothing more than a balancing test. For that I would commend you to a case which hasn’t been cited by anyone yet, but it is cited in every law school textbook in the United States, and that is the case of Boomer versus Atlantic Cement company where the court recognized, as many courts have since, that economic considerations can impose conditions on injunctive relief sought under a nuisance action.
cement firm. In any event, all we are seeking to litigate is the economic effects on the City of Belle Glades. We don’t think it is going to burden this litigation. We don’t intend it to.
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were flood control and water supply. Lake Ocheechobee is Belle Glades water supply. The South Florida Control District is the flood control project that is at issue in this action. The Hillsborough canal, one of the largest canals in that project by the City of Belle Glade, its citizens have to drive back and forth over it. It discharges into that canal.
modifications to that project which would have, could have an up stream effect on Belle Glade.
is not proper now, it is not necessary now to limit Belle Glades intervention. Again, I would commend to you the Reserve Mining case where the court noted that very point.
says, "while the court here decides that the applicants allowed to intervene will come up to bat, nevertheless, the number of strikes they will be allowed, by way of introducing evidence, are matters that can best be answered at a later time."
simply by your court now is simply going to result in this already litigious action you see in motions to compel, protective orders, so forth. Maybe we can workout issues
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where the district and the United States has a problem with our intervention. That’s the purpose of the local rule requiring good faith working it our. Lets let that local rule work before we do anything.
terminate now, I just don’t have anymore time.
past, and I don’t mean to be preemptory in what I am saying, but I think we have different ideas as to what this case is all about. We may also have different ideas as to how much power I have to do what I would have to do in this type case.
the case is the Government saying that the state is not enforcing its laws. If I am wrong in that observation, I wish someone would correct me.
nuisance claim has nothing to do with the Government enforcing its laws.
point at some point down the line. But if that is what this case is about, the state, of course, can respond by saying one of two things: "Yes, we are and we will prove it, or no, we aren’t and we will, or no, we aren’t and we are not
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going to because of the following reasons:"
that. I am sure that there are a lot of important interests involved in this case, but I don’t have the power to change, the state law as to these items, and I think we may be trying to complicate, for a variety of reasons that I am sure are very important to the parties involved, we maybe complicating a case that doesn’t really need to be complicated.
with and that matter can be proved, the case is over with, and if they are not, then we may have different problem on our hands.
I may rule on the motions I have heard within the next several days.
concerned, I don’t think it is necessary. I am going to deny that motion without further consideration .
Engineers is available to the parties. And if he and they are not, I will make them available to you, to the extent that you think you need to have them made available, and we won’t worry about a lot of red tape in the process.
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as possible and move it along as Mrs. Ponzoli has indicated it needs to be moved along.
that have been presented, I just wanted to make those comments, and I just don’t have any more time at the moment. I do thank you for your all being present. You will hear from me shortly, We will be in recess on this case.
Date:
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I, Jerald M. Meyers, do hereby certify that the foregoing
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