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P R O C E E D I N
G
10:10 A.M.
MS. PONZOLI: We are on the record. This is Susan
Ponzoli for the United States.
MR. HARRISON: This is Richard Harrison from the
United States Attorney’s Office.
MS. CAMPBELL-MAHN: Celia Campbell-Mahn from the
Department of Justice.
MR.SUUBERG: Marty Suuberg, Department of the
Interior.
MR. CROWLEY: This is David Crowley representing
Florida Department of Environmental Regulation.
MR. ROGERS: This is Jim Rogers and Jerry Jackson
representing South Florida Water Management District.
MR. DREHER: This Bob Dreher representing the
Florida Audubon, et. al., proposed interveners.
MR. GUY: This is William a Guy, Jr., representing
Treasure Coast Environmental Coalition Inc.
MR. EARL: This is Bill Earl representing the
Agricultural intervenor applicant.
MS. PONZOLI: All right. I guess the best way is
to go through paragraph by paragraph. And if someone wants
to speak then tell what it is you want to say about it.
On the first paragraph does anybody have a problem
on the introductory paragraph?
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(pause)
MS. PONZOLI: Then going to the document, I have
stated the position of South Florida Water Management. Is
that accurate, Jim?
MR. ROGERS: It is. Suzan, may I shorten this
from our point of view.
MS. PONZOLI: Right.
MR. ROGERS: This is Jim Rogers. From our point
of view it is fine. The document is fine, with the
exception –
MS. PONZOLI: Okay.
MR. ROGERS: -- of the statement, at the last
sentence in Section D on Settlement.
MS. PONZOLI: Right.
MR. ROGERS: We would agree with your reference to
the position of DER would equally apply to us with this
qualification. We are willing to discuss settlement at
anytime, but if I didn’t say it, I should have.
Our position is we are unwilling to discuss
settlement which involves a consent decree. We would
certainly discuss settlement if it involved for example,
dismissal of the case pending the outcome of the SWIN
planning process, or something like that.
MS. PONZOLI: All right then I am to change and to
say it is the position of South Florida Water Management
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that it too is open to discussion of resolution and
settlement with the exception of a settlement that would
involve a consent decree?
Is that an accurate representation of your
position?
MR. ROGERS: Fine.
MS. PONZOLI: Okay, I will change the wording, and
then before I send the final document out I will probably
give a phone call or have someone give you a phone call
and read it out so we don’t have to redo it.
MR. ROGERS: All right, fine.
MS. PONZOLI: Is there anything else?
MR. ROGERS: From our point of view the rest of it
is fine.
MS. PONZOLI: And the order, the scheduling order?
MR. ROGERS: That’s fine too.
MS. PONZOLI: Okay, then maybe that would be the
easiest way to do it. David, what about you?
MR. CROWLEY: All right. Thank you Suzan.
MS. PONZOLI: This David Crowley?
MR. CROWLEY: Yes, David Crowley for the Florida
DER. I have just got through reading the faxed document for
the first time here.
MS. PONZOLI: Right.
MR. CROWLEY: It appears fine to me. I have a
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couple of comments based on a rather cursory review. I
think Section A of the document is fine. I believe Section
B is just fine and Section C.
I have a couple of brief comments regarding
Section D and E at this time.
MS. PONZOLI: All right.
MR. CROWLEY: I think essentially under
Settlement, Section D, I think essentially that is accurate,
but I have two sort of reservations.
One, I don’t think that is complete with regard to
DER’s position, and therefore although I know it is not
intended to be misleading, it has a possibility of perhaps
being misinterpreted, because I think in the sentence it
says, DER does not deny that problems exist, but believes
that it is doing all that can be done to resolve these
complex problems.
My concern is that someone might read that and get
the idea that we are not willing to do anything further.
And that is certainly not the case.
MS. PONZOLI: Right.
MR. CROWLEY: DER’S position is that we are
moving forward with all reasonably possible speed to resolve
these problems.
However we are certainly open to any discussion,
to any type of new ideas, new technologies. You know, we
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recognize that there is some danger in experimenting with a
system this large, and then rushing towards hasty solutions.
On the other hand, you know we are certainly amenable to try
to get this thing resolved in the most efficient and
expeditious way possible.
I don’t expect you naturally, to incorporate all
of that into the section on Settlement, but I just state
that so that you will understand my concern about just
leaving it hanging in that we believe that we are doing all
that can be done, period, end of discussion.
I guess on other concern that I have, and don’t
know if the other parties share this. I just throw this out
for discussion. This is one of those delicate areas when
you are reporting to the judge on the progress of settlement
discussions, how much of the actual details of settlement
discussions should you bring forward to the judge who is
going to be trying the case, if in fact it gets that far and
settlement efforts fail.
You know, in other words the idea being that
settlement discussions are privileged and the specific
details of those should not necessarily be brought before
the judge. I think perhaps this is in the general ball park
of something that would be okay.
You know, I’m a little concerned about – you
know, the DER certainly has some reservations and some
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concern about, I don’t know if jurisdiction is the proper
term in this case or whether it is properly viewed as the
abstention doctrine, or as a possible issue of sovereign
immunity or police power or whatever. But in other words
the idea that has been raised I think in our previous
discussions of a comprehensive state legislative and
executive branch set up that involves the performance of
discretionary duties by appropriate state officials in a
situation where action is fact being taken by those
officials.
And I think the concern is that we are bringing in
a federal judge in and asking him to take over and
substitute some of his opinions and his beliefs of how these
discretionary decisions ought to be made, when in fact those
are properly made by the appropriate state authorities. And
in the absence of some abuse of discretion of lack of good
faith or something, you know, we are concerned about – I
guess just the bottom line is that we are concerned about
having a federal judge just take over the running of this
gigantic system that involves multiple state employees and
expert personnel and everybody that have, you know
substantial experience and expertise.
And I think DER shares the same concerns about
resolving this thing through the specific method of some
kind of consent decree whereby everybody agrees to be
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subject to the continuing jurisdiction of the Court and
subject to penalties imposed by the Court. You know it may
well be if we get further down the line and some of those
issues have been resolved through appropriate pleadings and
rulings by the Court, that decision may end up having been
made for us.
But I think at this stage that is an issue that we
are going to have to deal with in the context of settlement.
I don’t know necessarily that it is appropriate to include
that in a report to the judge, because I think that is
getting into the area of specific details and mechanics of
settlement that would ordinarily be privileged and would
therefore be inappropriate to bring before the judge--
MS. PONZOLI: I don’t mean to interrupt you,
David, this is Suzan Ponzoli, but really I am amenable to
putting in here – you can devise what your position is, and
simply tell me in a line or two, we are open to discuss
settlement, and that is it. I will put in here whatever you
want me to put as your position. And don’t need to go
into detail. It can be as global or generic as you want it.
The local rule requires us to have made some
effort, to have done something and then we are supposed to
record what it is our position is. And so you can make it
as general and unspecific as you want.
MR. CROWLEY: Okay --
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MS. PONZOLI: Why don’t you do that with what you
are comfortable, telephone it to me and I will record it in
the report of the scheduling meeting, and then you will be
comfortable. You know your position is yours, it belongs to
you.
MR. CROWLEY: Okay, I understand that Suzan, I
appreciate your cooperation in that regard. I was just, I
guess I have been a little bit too verbose, but I was just
trying to give you the back ground of our concerns.
MS. PONZOLI: Right.
MR. CROWLEY: And what I can do perhaps is
condense that into a sentence or two that perhaps could
either substitute or be added to what is in there, and
telephone that to you. And that would just be in there as
our position.
MS. PONZOLI: Well, I think that will make you
comfortable and I am certainly sensitive to the other things
that you have talked about, you know, your concerns about
discretionary duties and the confidentiality of settlement
discussions and you know, agency discretion etc. But I mean
I have a feeling that those are issues that we are going to
have to thrash out to some extent in the early motions.
MR. CROWLEY: Right, I guess, you know, briefly
what I was trying to say is that I am trying to walk that
line between leaving something that is so general and vague
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that it may convey the wrong impression –
MS. PONZOLI: Right.
MR. CROWLEY: -- that we are not willing to do
anything in this regard.
MS. PONZOLI: Right.
MR. CROWLEY: And that is not all the case –
MS.PONZOLI: Right, right.
MR. CROWLEY: I mean as far as being interested in
getting this case resolved before we spend millions of
taxpayers dollars all around in litigation.
And on the other hand, I am concerned about having
too much detail brought before the judge about exactly what
we are talking about in the context of settlement. So I
will try to get something like that back to you as quick as
I can.
MS. PONZOLI: Very good.
MR. CROWLEY: I have one other comment.
MS. PONZOLI: Okay.
MR. CROWLEY: That is on Section E with regard to
the Manual of Complex Litigation.
MS. PONZOLI: Okay.
MR. CROWLEY: I think the sentence in there is
correct. However I think all of us ought to keep our
options open. You know that we may find that when we get
farther down the road, that some of the procedures in the
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manual are more appropriate and are more beneficial to
everybody.
And perhaps I would offer that maybe we could all
stipulate or something to at least keep that question open
if it should arise, you know, subject to everybody mutually
agreeing and everything. I think as it stands right now, I
don’t think anyone is real anxious to get into the Manual on
Complex Litigation.
On the other hand, I think the law suit is rapidly
heading in that direction. And I think we all just ought to
think in terms of keeping our options open.
Maybe one more sentence that says, The parties
have agreed that you know, something that if the procedures
in the Complex Litigation Manual become more appropriate at
a later date they will bring that to the Court’s attention
by appropriate stipulation or something.
MS. PONZOLI: That is fine with me. Is that all
right with you Jim?
MR. ROGERS: Sure.
MS. PONZOLI: Okay, is it, The parties have agreed
that if the procedures in the Manual of Complex Litigation
become appropriate the will inform the Court?
MR. CROWLEY: Yes, that sounds good.
MS. PONZOLI: Okay.
MR. CROWLEY: And that is all I really have,
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Suzan. I think it is a well done document.
MS. PONZOLI: Okay, you have no– Are there any
– Is it Treasure Coast or Treasury Coast?
MR. GUY: Treasure Coast.
MS. PONZOLI: Treasure, okay, That is a typo.
All right, did you have any comment Marty that you wanted to
make?
MR. SUUBERG: No I think we are fine with what we
have here before us.
MS. PONZOLI: All right. And then Bill Earl, did
you have any comment?
MR. EARL: No, I just now got in it, but for the
record let me just – Art as you have indicated accurately,
obviously we and the others not yet parties, our positions
are not reflected, but I for the record would like to again
reiterate that on behalf of the agricultural intervenors we
would object to any settlement discussions without our
participation, number one.
Number two, I hereby again request notice of any
discussions, communications regarding settlement of any of
the parties to the proceedings and request the opportunity
to attend and/or participate in any such discussions or
conversations.
MS. PONZOLI: Okay, thank you. Ted Guy?
MR. GUY: We would take the position as Bill
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Earl on any settlement discussions. We would like to be a
party to them if possible.
MS. PONZOLI: Okay. And then Bob Dreher?
MR. DREHER: Suzan, I appreciate your courtesy in
involving us in the call. The document looks fine to me.
You don’t need to consult with me, and I would suggest
probably not some of the rest of us about the minor changes
that been proposed in the language. So you don’t need
to make a phone call to read things to me.
MS. PONZOLI: Okay.
MR. DREHER: As far as settlement goes, I guess I
would suggest perhaps, that although people are staking out
strong positions in behalf of their client’s interests, that
if in fact there is a possibility of settlement in this
case, it may involve some complex discussions. And I think
all the parties interests will need to be represented at
appropriate points in those discussions to be sure that we
have something that can in fact be lived with as a
settlement.
It may be premature to insist that all
communications between parties have to be done in common.
MS. PONZOLI: All right, I am to make one
more request. Thank you Bob for your comments. I am not
going to take any position on that.
I would like for you to look at these certificate
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of service lists, and please advise me if it is accurate and
we have reflected everyone who should be served. I believe
there was an effort not to mail duplicate copies of all the
pleadings to multiple attorneys for really essentially
single groups of parties.
Have I omitted anyone who should be on this
certificate of service list? And have I put your address
and is it all accurate? Does anyone want a change, or does
anyone want an addition?
MR. CROWLEY: Suzan, David Crowley here. Two
quick comments. One, just on my name, I am Assistant
General Counsel rather than Deputy.
MS. PONZOLI: Okay, All right. Thank you.
MR. CROWLEY: Those are recognized categories
within our office so –
MS. PONZOLI: All right. All right, Assistant
General Counsel?
MR. CROWLEY: Right.
MS. PONZOLI: All right.
MR. CROWLEY: And the only other thing I would
just briefly mention, the Florida Keys Coalition. I guess
they are deliberately left off because no ruling has been
made or –
MS. PONZOLI: No, I think that is an omission, and
I think I will include the Florida Keys Coalition. I will
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just have to get the one attorney who should be sent this.
I think they had several attorneys who signed. I don’t have
the document in front of me right now. I will call them and
find out which attorney is to be served, and include that
name, and then mail it out to everyone with the final copy
of the signed report of scheduling meeting.
MR. CROWLEY: Okay.
MR. EARL: Suzan this is Bill Earl. There is a
typo on the certificate, "2 South Biscayne Boulevard," is
repeated twice there.
MS. PONZOLI: Yes, you are right. Fine. Anything
else that any one else sees? Jim is it all right if I just
send it to you alone at Skadden, Arps’?
MR. ROGERS: That is fine, I will take care of
getting it to people.
MS. PONZOLI: Okay, all right. Then what I
propose to do is, as soon as David sends me his language,
then I will read that off back to him, and then I am going
to call Jim back, I will type in Jim’s, call Jim back and
make sure it is acceptable to him, and then I will forward
the whole document to Jim Rogers. I will sign it. Jim
Rogers can sign it, and then he will forward it to David.
And I guess David you can take care of filing it for us. Or
you can send it back to me and I will file it.
All right, is that agreeable with everyone?
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MR. CROWLEY: Okay that would be fine. I will
probably just send it back to you, Suzan, if that is all
right?
MS. PONZOLI: I would actually prefer that, and
then I will mail copies to everyone of the signed document.
And they will have it with the three signatures.
Does anyone else have anything he wishes to say?
MR. ROGERS: Yes, just one other very minor item,
Manual is misspelled at the bottom of page 2.
And I guess it is implicit. I think we reached
agreement on this down in Miami, that before the February 1,
meeting no party would be filing discovery requests?
MS. PONZOLI: I thought I had covered that. This
is Suzan Ponzoli. I thought I had covered that in the last
paragraph, when I said they further agreed no discovery will
take place until after that meeting on February 1.
MR. ROGERS: Oh that’s fine.
MS. PONZOLI: Is that sufficient to discover your
concerns?
MR. ROGERS: Fine.
MS. PONZOLI: All right. Then I thank you—
MR. EARL: Suzan, Bill Earl here.
MS. PONZOLI: Yes.
MR. EARL: I would like a copy of the transcript
of this conversation.
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MS. PONZOLI: Certainly. You may be ordering the
original, Bill. I will have him send you a note. I will
have him send everyone, all right?
MR. EARL: Okay?
MS. PONZOLI: Thank you very much, gentlemen.
Goodbye. Have a nice holiday.
MR. GUY: You too.
MR. ROGERS: Okay, thank you Suzan.
(Whereupon the telephone scheduling conference
was adjourned at 10:35 a.m.)
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Certificate of Reporter, Transcriber and Proofreader
United States v. South Florida Water Management District, et. al.,
Name of Hearing
88-CIV-HOVELER
Docket No. (if applicable)
Washington, D.C., tele-conference.
Place of Hearing
December 22, 1988
Date of Hearing
We, the undersigned, do hereby certify that the foregoing
pages, numbers 1 through 18 , inclusive, are the
true, accurate and complete transcript prepared from the
reporting by Peter M. Dixon in attendance at
the above identified hearings, in accordance with
applicable provisions of the current GSA professional verbatim reporting
and transcription contract, and have verified the accuracy of
the transcript by (1) comparing the typewritten transcript
against the reporting or recording accomplished at the hearings
and (2) comparing the final proofed typewritten transcript
against the reporting or recording or recording accomplished at the
hearings.
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