3
THE COURT: Sit down, please, folks. Good
afternoon folks. I am sorry to keep you waiting. I have
been going over the materials.
I have your responses, and I really had hoped we
could get together even before now, but we simply haven't
been able to.
I think it is time that I ruled one way or the
other on this matter as far as what we are going to do with
the agreement. I don't propose to go into a lot of
discussion about it. Can you all hear me all right? A lot
of discussion about it.
I will get right to the point, and then perhaps you
can give me whatever thoughts you would like to give me in
connection with the agreement.
As I read the responses of the settling parties and
the farm interests, it occurs to me that the simplest way
for me to do this -- and I will state the conclusion in the
beginning -- will be to enter an order approving the
settlement and in my order incorporate some of the language
that you both of have used in your respective submissions.
As a matter of fact, when I finished reading the
joint status report submitted by the settling parties, it
occurred to me that it might very well solve the entire
problem, simply to put a footnote somewhere in the
settlement agreement and refer to this because it is pretty
4
much of an admission of what the United States Attorney said
in his opening remarks at our last hearing and pretty well
concedes, from the farm standpoint, the things that the farm
interests want as far as the administrative process is
concerned.
There are certain items in the farm response that I
simply cannot go along with. For example, "the conclusions
of the agencies will be binding on the Court and the
parties."
Well, in effect, that is saying, "so why don't you
just go ahead and dismiss the lawsuit?" Indeed, the farm
interests parties' position, even up to that particular
item, is almost a suggestion that you might as well abandon
the lawsuit and let nature take its course and see what
happens, and then maybe you ought to keep the lawsuit
pending. And if the parties don't like what happens, we can
always come back later on."
Well, that ignores the fact that we have a
litigated matter that is pending, and that I have got to do
something about it. We have reached a point where I've
either got to fish or cut bait on this settlement agreement.
The farm interests, of course, would like me to cut
bait and let the administrative process proceed and
somewhere down the line, if somebody doesn't like what is
happening, they will come back and see me.
5
Well, that I don't propose to do. I don't think I
should do because I have got to realize the fact that there
is a lawsuit pending, and that the parties have taken a
position, and that there is in this settlement agreement a
discipline.
If there is nothing else in it, there is a
discipline set out that will be to the benefit, whether or
not it is to the benefit of either side in this case, it is
probably going to be to the benefit of the Everglades.
That discipline I think is something that should be
encouraged by the court.
It is my intention to make sure that the farm
interests get a meaningful opportunity to present their
positions in the state system.
From what I read in the Joint status report of the
settling parties, that is what they want as well, but I am
not going to accept the farm interests' view that either
this Court or the settling parties should be irrevocably
bound by what the agencies do.
It may very well be that the Federal Government
will want to come in here at some point and say, "The state
part of the settling group is now convinced that what the
agencies have done is correct, and they are simply not going
to go along with what we believe is correct, and we want the
matter litigated finally before you, in which case I might
6
have to say, "Well, we are going to get down on the mat and
fight it out."
Frankly, at that point, because this is a rare type
of case, I don't know where we are going to be when the
parties, if they ever do, disagree on what the right thing
to do or what is the right thing to do about the water
that's coming in to the park and the other area that at 5
o'clock in the afternoon I forget what we call the other
area.
But, in any event, the bottom line on what I am
saying to you is that I think what I should do and what I
propose to do, unless you can talk me out of it, is to enter
an order that approves the settlement but, in effect,
incorporates in the order the parts of the joint status
report and even the submission of the farm interests -- I
can make reference to what I am talking about -- that
preserves, in fact, the right of the farm interests to
present a meaningful position as to what is good for them in
the solution of this problem.
Now having said that, I would be glad to hear from
any of you. Who would like to go first? Ms. Ponzoli.
MS. PONZOLI: I will, Your Honor. Your Honor, that
is really what the government would have proposed to the
court, is that you incorporate the assurances of the moving
party into a memorandum opinion because they were sincerely
7
made and sincerely intended, and we feel we are bound to
them.
I guess the only question I would have is that you
are referring to incorporating submissions of the farm
interests, and I guess I would need to know which ones, so
there is no conflict that perhaps you are unaware of, but we
might.
THE COURT: Go ahead.
MS. PONZOLI: I only want to avoid somehow having
to come back and say, "there is conflict between what you
entered, either for the Federal Government, in conflict with
what you entered for the farm interests."
So, I suppose I would ask to know whatever we have
submitted in our joint status report, we obviously have no
problem with your including.
THE COURT: Well, let me see if I can find that for
you.
THE COURT: Well, let me tell you what I will not
incorporate. I am looking at the proposed order of the farm
interests. Do you have that in front of you?
MR. EARL: Yes, sir.
THE COURT: Look at Paragraph 2.
MR. EARL: Yes, sir.
THE COURT: That I will not include. Now, look at
3. "The specific provisions of the Agreement, including
8
definitions, statements of fact, commitments to restore
water quality, concentration levels and discharge limits,
water quality requirements, implementation of storm water
treatment areas, regulatory programs, implementation and
enforcement procedures and substantive and procedural
commitments of the state agencies, as set forth in the
appendices." It says, "shall have no binding effect upon
the agencies."
Well, I am not sure I agree with that language.
Perhaps if we put in there, "shall have no binding effect
upon the agencies, except to initially propose agency action
as required by Chapter 120, Florida Statutes, in which
points of entry, as required by law, will be provided to all
non-consenting third parties or persons whose substantial
interests are affected."
Now, do you have a problem with that or something
like it being included in the order?
MS. PONZOLI: I think it was our feeling, Your
Honor, that Paragraph 3. as well as Paragraph 2 essentially
took the jurisdiction, the continuing jurisdiction and the
binding effect of the settlement agreement away.
THE COURT: I don't see 3 doing that. Certainly 2
does.
MS. PONZOLI: Right.
THE COURT: What this says essentially is that the
9
agencies can proceed without feeling coerced by the
agreement. That does not mean that the settling parties
will not comply with --
MS. PONZOLI: Your Honor, I think that we have
discussed these, and I would like Mr. Thompson to help.
Some of these are words of art under Florida law. It might
be helpful to have people, such has Mr. Thompson, who are
more familiar with the words of art.
THE COURT: Mr. Thompson.
MR. THOMPSON: Good afternoon, Judge Hoeveler. The
concern that we had with Paragraph 3, in addition to it
shall have no effect that you mentioned, is the reference to
the activities that are alleged to be governed under Chapter
120 are extremely broad in nature and appear to go beyond
what actually is within the ambit of Chapter 120.
If you recall the hearing a month ago, there was
some considerable discussion; in fact, I was engaged in
cross-examination at one point with witness Mr. Bentley as
to what actions were actually governed by the Chapter 120
process and what ones were not.
I was referring to Section 403.131 of the Florida
Statutes which is a specific statement that you do not have
you to exhaust the administrative remedies in order to
procedure with enforcement. There was some
cross-examination going back and forth.
10
If you take a look at the language, for example, on
the 5th line down or so. It talks about implementation and
enforcement procedures. I mean, our concern is that this
paragraph could be read in a way to infer that we could not
proceed with enforcement without exhausting a Chapter 120
process, which we don't believe currently exists, as a
matter of law.
So, I think we are a little bit troubled by, you
know, the expansive nature of this. If there was some
caveat put in there to the extent of referring only to those
activities that are, in fact, governed by Chapter 120, as
opposed to an inference that, you know, that everything is
governed by it, that would provide more comfort to us.
THE COURT: Yes. That's a good idea, and perhaps
you could help me with that language by a submission.
MR. THOMPSON: Yes, Your Honor. I mean, I do have
something in mind that we could submit if you want to do it
that way. That would clarify that.
THE COURT: That would be fine.
MR. THOMPSON: Thank you.
THE COURT: As I have tried to make clear, not only
the last time we spoke, and perhaps somewhat inartflully and
hopefully more clearly today, I want to approve the
settlement agreement. I think we need to approve the
settlement agreement.
11
There are some deadlines in there, for example,
that are coming up very quickly; April of 92, for example,
but I do want the farm interests to be assured that the
administrative process that I gather is already underway, is
it?
MS. PONZOLI: To some extent. The first half of
the BMP Rule has been put out, Your Honor, and the second
half will come out in the spring. So, to that extent, yes,
the SWIM Plan has been issued. The permit applications have
begun.
THE COURT: I think it is proper and fair and, of
course, in compliance with due process that their
administrative process be meaningful.
MS. PONZOLI: Yes, sir.
THE COURT: Now, the state interests have committed
themselves to trying to achieve an objective that the
parties have agreed upon.
I think you have made it clear in the joint status
report, parts of which we will incorporate in the order,
that that process will be meaningful and, indeed, may even
change the objectives stated in the settlement agreement,
depending on what the facts are; what the results are and
what the findings are.
That's what I want to be clear from the standpoint
of the farm interests, but I think we need the agreement.
12
I think with that having been said, we probably
ought to hear from the farm interests at this Point, unless
you had something to add, Ms. Ponzoli.
MS. PONZOLI: I think the only other thing we had,
Your Honor, was in Paragraph 1, we had some concerns at the
end of sentence one, "as necessary or required by law" we
thought would probably make sentence one of Paragraph 1
appropriate.
THE COURT: Now, what are you referring to?
MS. PONZOLI: We are bark in Paragraph 1. Were you
intending to include all of Paragraph 1?
THE COURT: No.
MR. EARL: No.
THE COURT: Are you talking about the farm?
MS. PONZOLI: Yes, sir.
THE COURT: No. I had not discussed Paragraph 1.
MS. PONZOLI: I am sorry. You are not including
Paragraph 1. Then there is no problem, because we had
concerns about portions of it, too.
THE COURT: However, if you want to give me your
concerns about it. I will be glad to hear them.
MS. PONZOLI: I think we have serious concerns
about the second sentence and the affect of the second half
of it, and the last sentence, quite frankly, we couldn't
figure out what it really meant, and that caused us very
13
serious concern as to the last sentence.
Maybe we should hear from Mr. Earl, and I suppose
if some of these things become clearer, we can respond.
THE COURT: Yes. All right.
MS. PONZOLI: Thank you.
THE COURT: Before we hear from Mr. Earl, did
anyone else for the settling parties wish to say anything?
MR. REID: No, sir. We join.
THE COURT: Mr. Earl.
MR. EARL: Thank you, Your Honor. If I might, Bill
Earl representing the farm interests . First of all, we
respectfully request that you deny this, the uncontroverted
testimony. Judge. I want to address your specific
questions, but I want to make our position clear.
It does impermissible invade the rights of
non-consenting third parties. They don't need this to
settle, Judge. They can have a private contract, if they
desire; to have obligations between themselves, but it is
the act of your signing an order that gives it an
adjudicatory capacity. And as the Eleventh Circuit noted in
its opinion, it is going to, as a practical matter, inhibit
state judges, state hearing officers.
So, we would request that you deny it. We are not
seeking modifications. We want nothing to do with this
agreement. We have some suggested language, but we are not
14
in any way supporting the agreement.
THE COURT: Oh, I understand that, yes, of course.
MR. EARL: Paragraph 1 is essential, Judge. They
talk about the second sentence which reads, "The South
Florida Water Management District and the Department of
Environmental Regulation will not assert as a defense in any
administrative action and will not determine financial
agency action on the basis that they are unable to modify or
alter the proceeded agency action due to the terms of the
agreement or the federal court's entry of an order approving
the terms of the agreement."
That is necessary, Judge, because that's the club
they want to hold over, the feds want to hold over the
agency heads, their contractual commitment. It is also I
think the kind of thing the Eleventh Circuit was referring
to when they said, as a practical matter, this Court's entry
of an order is going to have a profound effect on
subordinate and other tribunals.
One question which I don't think the Court's
proposed course of action addresses is what about the state
Circuit Court and District Court of Appeal proceedings.
As we demonstrated at the evidentiary hearing, DER
has already used, tried to use this Court's approval as a
defense in the Sunshine suit filed in Tallahassee circuit
court.
15
They said if there were some technical violations,
Judges Hoeveler's order, the one you are talking about
today, will take care of it.
I wonder how that would be addressed. It does not
appear to be addressed under the Court's present course of
action.
The interference with the questions of state law
legality pending before the other courts of Florida, we
think that's a very important and significant issue because
they have already tried to use it as a defense.
I think it will be used over and over if you, in
fact, put your signature to this order, Judge Hoeveler.
We would note for the Court's attention that we
have several pending requests to compel discovery that we
will need. They have barred for the last several years both
attempts in the litigation and in attempts through other
procedures to obtain access and entry so we can have
meaningful participation and go in and test, which as I
understand the gravamen of the suit as it started was
Everglades Nationd Park is damaged or threatened, and that
they have for years excluded any objective, scientific
testing by our consultants to go in there.
We can only do they say exactly what they have done
in the manner where they did it, and that is essential
because I concede --
16
THE COURT: I would agree with that.
MR. EARL: I think that would damage the
administrative process because they will say, "in the
administrative process, well, you don't have authority to
order the Federal Government to provide these people with
access."
So, that is one of the other major questions, Your
Honor, pending. I presume the courts -- I don't know,
Judge. I raise as an issue the ability to proceed with not
only the state litigation, but also with the counterclaims
we have filed, as well as the other pending issues and how
the Court would proceed in terms of this litigation whether
it would be stayed or whether it would proceed until the
completion of the administrative process I am unclear and am
unable to address those issues.
THE COURT: Well, they are 2 points we ought to
discuss and resolve tonight.
MR. EARL: Yes, sir.
THE COURT: One of them I don't think will be
difficult to resolve . The other one I want to hear you a
little bit more on; that is, the progress of the other
facets of this case.
It seems to me, I say this quickly and
provisonally, that the case basically ought to be stayed
until the product of the administrative procedures begins to
17
show some results, or else we could wind up trying a half a
case while the solution may be found in the process that the
settlement agreement calls for. That doesn't make a whole
lot of sense.
MR. EARL: It does not, Judge Hoeveler. My clients
want the opportunity for the first time in 3 years to
present some evidence to go to these issues, and we believe
that should be lawfully what the court has discerned in the
state administrative process.
THE COURT: I agree. I agree.
MR. EARL: We don't want anything duplicative, but
there are some pending requests and some actions that only
this Court can grant that we need to proceed.
THE COURT: Why don't we take up that request for
entry and testing right now. Do you want to do that?
MR. EARL: I don't even have the file with me, Your
Honor.
THE COURT: Well, you stated your position. It is
not a very difficult point. Ms. Ponzoli?
MS. PONZOLI: Your Honor, I don't have my pleadings
with me, but I can tell you, I have objected very
strenuously to the terms of his entry into the Park because
it is a destructive entry that will put miles and miles of
survey through wilderness areas.
It literally within the refuge puts something like
18
hundreds of miles of survey lines. The Park and the Refuge
have, as a matter of policy, agreed even though we believe
this federal litigation will end, to allow them to come in
and do research.
It is the terms of their coming in. They will not
bend on any of the terms. They want 15 months.
THE COURT: 15 what?
MS. PONZOLI: 15 months of research. I mean, I
really would like an opportunity to present this in a
coherent manner.
THE COURT: It is not as simple as it sounds?
MS. PONZOLI: No, sir, It is not simple.
THE COURT: Not even going in and taking some water
up in some cans?
MS. PONZOLI: No, sir. It is not that simple at
all. It is tens and tens of survey miles through pristine
areas. No, sir. We will let them in, but not on their
terms. It would be a great destructive effort to let them
come in on the way they want to come in.
I will do this tomorrow if he wants. I will go
home and prepare it tonight, but I really am not prepared to
do it right now.
THE COURT: All right. Well, that's fair. Mr.
Earl.
MR. EARL: Judge, it is simple. They have been out
19
there for 3 years putting together a case and have
vehemently refused, unless we go in and duplicate exactly
what they have done.
We are not going to do anything intrusive, and we
will present that if the Court wants to get to that level of
detail. It is simply we need a dry season because of the
cycles out there determined by the water supply.
We need a dry season, which it is now. We can get
in there quickly. We need to do some soil samples, some
water samples; things of that nature. Then we need to do it
in the wet season and have some period of record, so you
just don't have two snapshots, but have an overall objective
picture of what has happened out there. It is relatively
simple.
THE COURT: You are not going to tear up anything?
MR. EARL: No more so than their consultants; their
testing. They have doene dosing studies out there. No more
so then they have done in their scientific inquiries. We
would stipulate to that.
MS. PONZOLI: Your Honor, I am sorry, but 16
hundred something like soil samples, 48 inches deep, 9
square inches, it is not a few soil samples. Really, one
day. Give me 24 hours, and I will come in here.
THE COURT: No. I am not going to push you into
this. I did not realize it was quite as extensive as you
20
are telling me.
We will set it quickly, because I do think stated
in the abstract, that the farm interests certainly should
have the right to do some testing. And so the question will
be the extent of it.
All right. Now, I understand the magistrate has
that. You have not been set for hearing?
MS. PONZOLI: No discovery matters have been heard,
Your Honor. I, in fact, have done no discovery against Mr.
Earl. I don't have his experts. I don't have his
documents. I don't have anything.
THE COURT: Yes.
MR. EARL: Judge, if I could amplify Ponzoli's
answers. On any discovery requests that we've been doing,
they have been saying, they have been moving for extensions
of time until ten days after the Court rules on this thing.
We've got a pending motion to compel on that which
has been there for a month or two now, trying to get that,
but every discovery request comes back with ten days after
the order.
THE COURT: I anticipate that whatever the
magistrate does I will get it, from one side or the other.
So, why took why don't we just save the time and set it for
hearing, that particular point. And your other point, Mr.
Earl, was?
21
MR. EARL: Well, there are several other points.
One is they want to mask it, Judge, as the authority issue
as the jurisdictional issue it is not.
It is an issue that has not been raised. We've
raised it before this Court a month ago. It is pending and
that is the question of the Court's authority. I am sorry.
The United States Attorney's Office and The Department of
Justices' authority instead of the interior and EPA
instituting this action, The Department of Justice
instituted this action, Judge, and they have stonewalled us
on discovery.
I've refused to provide any answers on that, and it
they call it a jurisdictional thing and try and raise that
red flag which the Court is tired of It. Is not the
question of the authority, of the United States Attorney's
Office and The Department-of Justice to institute an action,
as opposed to having a client instituting an action.
That hasn't been raised before, Judge. We would
seek some discovery on that. Your Honor. We need some
discovery on that. It is not the jurisdiction that's been
raisel all over this case. It Is the fundamental question
of did they have a client when they filed this suit?
If you remember back in the origins of this suit,
Mr. Lehtinen originally filed and the DOJ didn't sign off.
They got that straighted out.
22
This is a more fundmental question. Under the
statutes, only the Secretary of the Interior can direct that
a suit be filed. Only the administrator of EPA can handle
other matters.
They have refused to provide, if you go through the
discovery request, any discovery on that. We think it is a
fundamental base question.
THE COURT: All right.
MR. EARL: If I may have just a moment to consult
with my fellow counsel, Judge, I think we can save some
time.
THE COURT: Yes.
MR. EARL: Thank you.
MS. PONZOLI: Your Honor, may I go ahead and
address a couple of things while he's doing his
consultation, or I guess he needs to hear?
THE COURT: I guess he needs to hear what you have
to say.
MS. PONZOLI: Okay.
MS. PONZOLI: Your Honor, may I clarify something?
THE COURT: You may.
MS. PONZOLI: Are you talking about staying the
counterclaims and all other actions? Is that what we
understood the Court to say?
THE COURT: I am suggesting that that seems
23
reasonable, under the circumstances.
MS. PONZOLI: Okay. Thank you.
THE COURT: Mr. Earl. I think Ms. Ponzoli is
finished for the moment.
MR. EARL: If I may clarify, when the Court says,
"all other actions," are they referring to the state court
actions?
THE COURT: No. This action.
MR. EARL: Oh.
THE COURT: Did you include that.
MS. PONZOLI: I understood federal court, Your
Honor.
THE COURT: Yes.
MR. EARL: Right.
THE COURT: I don't think I have any right to tell
the District Courts of Appeal and other courts what to do.
As a matter of fact, how is that litigation going in
Tallahassee relative to the settlement papers?
MR. EARL: We have gotten some initial discovery
responses back. We intend to start setting depositions and
proceeding with that, Judge.
THE COURT: Okay. Go ahead.
MR. EARL: Thank you. After consulting with
counsel, the key issues, Judge, are the remaining and there
are several -- I don't want to burden the Court with the
24
remaining, the pending discovery issues.
The principal one being the ENP in Loxahatchee.
The issue of authority, we do need discovery on that because
I think that will save a lot of time and effort. It is a
fundamental issue.
I understand the Court now not to have said that,
but the caution was the inhibiting effect on the state
courts, and the administrative hearing process, and we would
ask, Judge, again that you deny this.
It has already I think poisoned the administrative
process I believe, not because of this Court's action, but
it was designed, it is a plan designed to impose regulations
on farmers by excluding them from the establishment of those
regulations.
I think that's what the state court action will
show, that it was a design to exclude them to agree on
numbers and then go implement that through a proforma
administrative process. So we would ask that you deny this
agreement, Judge. I will be happy to answer any other
questions.
THE COURT: The settling parties say in their
status report that I should not conclude that the state
officers, both administrative and judicial, are simply going
to role over and not do their duty. Should I conclude that
they are going to do that?
25
MR. EARL: I would pose the question another way in
answering your question. I would say once, if I was
advising them as a lawyer, once a United States District
Judge signs a 57 page document, whatever it is, making it
effective, so that the standard. Is until otherwise
changed, 50 parts per billion, you had darn well better
follow that federal Judge, not some other process.
THE COURT: But here is what that federal judge is
saying, also. "That the settling parties are in accord that
nothing in the settlement agreement is intended or operates
to abrograte the District's and the DER’S duties to act in
accordance with Florida law."
I don't know that I will use this language exact
language. "Indeed, it must be presumed that the state
agencies will act legally in implementing the agreement."
MR. EARL: Well, they have a legal obligation once
you sign that, Judge.
THE COURT: More language like that that says that,
in effect, that the agencies should, in good faith, do what
they are supposed to do, regardless of the language in the
settlement agreement.
MR. EARL: But they have a legal obligation under
that agreement. Apart from your authority. They have a
contractual obligation with the Federal Government.
I think that's precisely what the Federal
26
Government wants in this process, is to be able to bring
those agencies bock by that contract. If that doesn't work,
to bring them back before you.
THE COURT: Well, the contractual obligation, as I
understand it, is it commits the settling agencies to do
their best to achieve the result that they have agreed on,
but it does not commit them to come in and say, "Well, even
though our findings of fact show that these levels are
wrong, we are, nonetheless, going to go along with you
because of this agreement."
"Indeed, quite the contrary should obtain. That if
the agencies come back and say that X is the proper level
rather than Y, then the agency should say to the Federal
Government, "sorry, pal. X it is. And if you don't like
it, then let's go into court and do something about it."
Where we go from there, I really don't know because
then we are going to have, and I was trying to think this
procedure out. This is a rare bird, this whole process.
In trying to think the procedure out, and you go
down the line of possibilities at some point you might have
the Florida Supreme Court and the District Court, the United
States District Court, looking at each other and saying,
"You do this." And the other one says, "We are not going to
do it."
I don't know where we go from there. Maybe we get
27
the troops out, or something. But that's a potential down
the line, but it is one that I don't think we will ever
reach. Hopefully, the agencies will do the job. And if an
agency comes back and says, "level X should obtain, the
Federal Government and the agencies, the settling parties
will agree on level X in good faith."
MR. EARL: But right now, when you enter your
signature on that document, level X, 50 parts per billion,
14 parts per billion is the controlling determinative, the
dominant number until somebody comes forward, mainly us, and
chances it in the process, Judge.
THE COURT: That's very true.
MR. EARL: And that is not consistent with Florida
law, as you heard. We have the right. In this case, these
agencies are contracting away with the Federal Government.
In another case, it could Just as well be with a
private developer to affect, and there is a case on point in
Florida law. You can't contract away a third person's
administrative rights.
THE COURT: Well, but here is the problem I have
got: Federal Government owns this property.
As a matter of fact. I was joking with my clerk
earlier. In a way this is like the old case of Rowlands
versus Fletcher. You must remember that from your --
MR. EARL: I am a water lawyer. I remember that
28
case law. All the water got out.
THE COURT: Yes. On the other person's property.
It hurt the other person. The other person filed suit and
said, "You can't damage my property."
That's what the Federal Government is saying here.
"We own some Property, and the state heretofore had not been
taking care of its business as far as management was
concerned, and our properties are being damaged. We want
the state to do something about it."
So now, I have that problem presented.
MR. EARL: Yes, Your Honor.
THE COURT: If I do what you suggest, I might as
well say, "Well, let's dismiss the lawsuit and you, folks,
if you can't work it out, somewhere down the line come on
back and see me."
I don't propose to do that. I have this problem.
It seems to me the way to handle the problem is the way we
are doing it.
MR. EARL: I know you will not side step the issue.
You have convinced everyone of that, Judge, but if I can
remind you respectfully once more, one more time, they are
here as a property owner as you correctly discern.
They are here under state law. They are here under
that statute 403.412. Any circuit judge, which I
respectfully suggest you sit at as under that statute, can
29
only direct the process. H.
He can't direct the numbers which your signature
does to this agreement. He can't direct the numbers. The
proper way to resolve it, I suggest, is to strip those
numbers and disputed facts out of that agreement and direct
the steps be taken by such and such a date.
And if they don't, haul them back here as quickly
and as forceably as you want to, but don't prejudice the
outcome by having those numbers over your signature. I
thank you, Judge.
THE COURT: All right. Thank you, Mr. Earl.
MR. REID: I am Ben Reid. I represent the
District.
THE COURT: Mr. Reid.
MR. REID: Your Honor, I Just have one comment or
two really to make. Mr. Thompson gave you some views that
we had about some sort of I will call them technical
problems with the language in the order submitted by Mr.
Earl dealing with the APA, and so forth.
We think, in general, and I think Mr. Thompson,
explained it, that if you make it clear you are not saying
that 120 applies to everything. You are saying if 120
applies, and so forth. We think that would probably solve
some of that.
We also think that some of the language, the
30
language about not waiving -- taking this order and waiving
it in other courts, and so forth, we think that's covered in
what we submitted. That there is no res judicata or
collateral estoppel effect. So it is probably redundant to
say it, and I am not sure what forum you are talking about,
a memo opinion, or whatever.
THE COURT: Well, I will be clad to have a
submission from you if you can get it to me quickly.
MR. REID: What I was going to suggest is that we
would be willing to reserve the right to move for
clarification, if there are these technical state
administrative questions, after you have entered the order.
THE COURT: I have the farm interests' recommended
order. If you would like to submit within the next several
days a proposal that you think will indicate what you are
talking about, I will be glad to have it.
MR. REID: Fine. That's all that I have.
MS. PONZOLI: We will do it.
MR. THOMPSON: Your Honor, Dan Thompson again.
Just with record tolthat last comment, the parties are
planning on getting together on Monday. So that might be an
opportunity for us to be able to finalize that at that time,
just to give us a few days.
I just wanted to get up to clarify or state that
the Department's position on one comment that Mr. Earl made
31
with regard to the illegality of the state proceedings
regarding whether numbers have been set already in violation
of the State Administrative Procedures Act.
We do not agree with his characterization of the
law and, in fact, we have filed a motion to dismiss in the
Sunshine lawsuit which is currently scheduled for hearing on
December 30th.
Our position is we believe that there is case law
to support that. And, as a matter of fact, we have
furnished case law to the Court in the form of the Mannis 88
case which has been cited in some of the materials that we
have filed with you; that there is no legal obligation for
participation in the creation of numbers prior to the point
where the agency action occurs for which there is a right to
point of entry.
In other words, there Is no right for people to
participate in the decision making process until the
decision is made.
The legal decision, which is the intent to issue a
permit, the notice of rule making, or whatever, the agencies
have to start somewhere. We can't just issue a notice of
rule making and say, "Well, we want to protect the
Everglades, so what should the numbers be?"
We start with the process that says we believe this
is a rule that we are proposing. These are the numbers that
32
we are proposing under the rule. Everybody has a right to
come in and have a public hearing on that and challenge it
and go through administrative process. If they want to take
it to the courts.
But we come up with the number first before that
happens, and my concern is the representation being made
here is that there is a right to participate in the process
leading up to that initial decision to start that, and we
just would like to clarify the record to that affect that we
don't believe the law reads that way.
THE COURT: Yes.
MR. THOMPSON: As I said, there is the Mannis 88
case which is cited in one of our previous filings that
deals with that very issue.
THE COURT: I thank you.
MR. THOMPSON: Thank you.
MS. PONZOLI: Your Honor, I have just a few points
in response to what Mr. Earl had said.
In regard to doing further discovery in this case,
I think it is inappropriate. The case is over. And in
regard to the entry, I think the United States has no
objection to going before Judge Bandstra and trying to work
out that entry on reasonable terms.
THE COURT: That's fine.
MS. PONZOLI: In regard to discovery on authority
33
to initiate and institute the action, I understand that to
be part of the issues that will be stayed. Therefore,
discovery is inappropriate.
It is inappropriate, secondly, because this court
has really already ruled on that. Mr. Rodgers raised that
quite sometime ago, and the Court ruled against him.
Judge Bandstra ruled against such questions in
depositions that came up, and they were ruled
attorney-client communications. That's a long dead issue.
I really believe that it certainly is not part of anything
that is ongoing.
I suppose that I would want to make sure that the
Court, is Monday sufficient for us to fax some language to
you in regard to what we think is appropriate?
THE COURT: Yes.
MS. PONZOLI: On that one order?
THE COURT: Yes.
MR. EARL: Thank you.
THE COURT: Mr. Earl?
MR. EARL: Could I Just be heard briefly on one
issue?
THE COURT: Yes. Thank you.
MR. EARL: Thank you. I appreciate your patience
again. Judge, we've filed with the Court today and we are
just now starting to get some documents in this process, and
34
we in analyzing them, we have submitted a document, a
supplemental authority in opposition to this thing, which as
you remember, when the suit was originally filed, you were
told this case is not about establishing standards.
It is enforcing existing law. Then they went up to
the Eleventh Circuit and the Eleventh Circuit quotes it in
its footnote. They told them something very different in
the Eleventh Circuit.
They said, "in this case what we want is a specific
phosphorous limiting standard. The Eleventh Circuit clearly
presented that conflict to you. The settlement agreement,
as you examine it, you won't see the words "water quality
standard."
They are using euphemisms and paraphrasing
limitations, discharge limits, and we find, and I think
other things like this will show up in what we believe -- we
don't know, frankly, where this document come from, but we
filed it with the court.
It appears to be by a water quality expert. It is
entitled "Water Quality Limitations For Everglades National
Park," and this introduction says, "In this document we
discuss the rational for development of non-degradation of
water quality limitations."
Footnote. It is the first page, Judge.
"Governmental jurisdictional constraints preclude use of the
35
term "standard," and I would suggest and bring it up, Judge,
because the Eleventh Circuit said this case does involve
standards. They continue to deny that, and we believe it
does and would ask you to consider that in your ruling.
Thank you.
THE COURT: All right, sir. Thank you.
MR. LEHTINEN: Your Honor, I just wanted to,
representing a number Ms. Ponzoli has said of federal
agencies, it is very important that I describe to them
correctly the affect of what Your Honor has said and you
have repeated it a couple of times in a way that I
understand consistent with what I understand, but to make
sure, it is the question of inconsistencies between the
evolving administrative procedures process and this
agreement.
The administrative process, as Your Honor points
out, can produce outcomes that are inconsistent with this
agreement. The affect of such outcome, as I understand Your
Honor's understanding and mine, as well, is that if that is
the case, and can be demonstrated to Your Honor that there
are inconsistencies, the effect is that the settlement
agreement has not been adhered to and the parties, including
the United States, are entitled to come before Your Honor
and argue the questions that would have innured in the
lawsuit to begin with.
36
That if there are inconsistencies which can arise,
that it means the United States is no longer bound to a
settlement agreement, we can come to this court and seek
additional remedies, pursuant to law, and so forth. And, of
course, the action taken, which was inconsistent with the
settlement agreement, can be defended in this court and
perhaps can be justified, but that we are not bound to
inconsistent outcomes in terms of having settled our
lawsuit.
We've settled our lawsuit. Only if we get certain
outcomes. If we get other outcomes, which can occur through
the process, then we are entitled to argue for a remedy
before Your Honor, which we may or may not achieve.
I understand that to have been your description and
our understanding.
THE COURT: That's my understanding, and you raise
an interesting point, which is often the reason why
positions are misunderstood.
To put the name "settlement agreement on this
document may be a mistake in the first instance. It really
is something else.
I am not sure what to call it, but it is something
other than a settlement agreement. It is a procedure that
the parties have entered into.
The procedure is really not binding on either side,
37
to state it simply, if matters don't work out. Then we are
back here.
It is a method of avoiding the continuation of the
lawsuit and the attempt to implement procedures that will
resolve the case to everybody's benefit and, hopefully, to
the farm interests' benefit as well.
I don't think we can discount the importance of the
farm interests' position, not only in this case, but from an
economic standpoint, but it seems to me that this agreement,
whatever you want to call it, is a good step and one that we
ought to proceed with as indicated.
MR. LEHTINEN: Yes, Your Honor. It is labeled
"settlement" only in the sense that it settles existing
controversy at this moment between certain parties, but it
is contingent and the affect of failing to achieve
contingencies, it is that the rights of the parties who
waive or gave up some, pursuant to the settlement agreement,
regained those rights and the ability to come before Your
Honor.
THE COURT: That's my understanding.
MR. EARL: Your Honor, may we have the opportunity
of responding? I understand they will be submitting
something to the Court on Monday 24 hours after.
THE COURT: Of course. You can have 48, If you
want.
38
MR. EARL: 24 will be fine, Your Honor.
THE COURT: Then I think we probably, with the
exception of some of the discovery matters involved, we've
probably accomplished what we came to accomplish.
I understood you to say that as far as this entry
motion is concerned for testing, you have no problem with
Judge Bandstra proceeding with it?
MS. PONZOLI: No, sir.
THE COURT: Mr. Earl, how about about you?
MR. EARL: We would prefer to have you proceed with
it, Judge.
MS. PONZOLI: I am perfectly happy with Your Honor
whenever you want to set it.
MR. EARL: I know the court has a busy schedule.
THE COURT: We can do it on another late afternoon.
MR. EARL: If the court prefers. I know the
Court's calendar. We will proceed with Judge Bandstra and
then obviously either party can appeal.
THE COURT: Why don't we try that. That might
help. You may be can agreement on something in the
meantime. Than we can solve that problem.
MR. EARL: We will certainly try.
THE COURT: Fine. Thank you all.
39
DATE:
I, Jerold M. Meyers, do hereby lertify that the foregoing
transcription is a true and accurate transcription of my
stenogrpahic notes. |