3

themselves. They are the designers. They are the ultimate

arbiters of how they are to run.

Your Honor, we cannot begin to tinker with this

system out of some well-meaning notions of pollution control

without having the people who really know what’s going on in

this courtroom.

I think we need an attorney who has complete

loyalty to the corp. Representing them in the event –

THE COURT: Let me do this: I am over a bit but I

would like to hear from Miss Ponzoli or Mr. Lehtinen on this

particular question.

MR. LEHTINEN: Your Honor, I know you are over and

Mr. Harrison was prepared for argument, but let me argue the

issue, but let just say this:

Your Honor is correct when you characterize it as a

defense. It has been a defense for thirty years. The devil

made me do it. If the Corps. Makes them do it, they will

have a good defense. You’ll rule against the Government,

We’ll go home and the lawsuit is over with.

If the Court doesn’t make them do it, then they

don’t have a gook defense and that’s our position in this

particular lawsuit. The Government will be happy to do what

counsel for the defendant says; since we represent the corps.

They don’t even have to subpoena Colonel Herndon.

4

All they need to do is pick up the telephone, ask

for Colonel Herndon to come down here. He’s a party to this

lawsuit, and Colonel Herndon will be here and testify

regarding all those matters.

I suspect his testimony will be substantially

different about the state of the law and whether or not his

client can budge without permission from the corps. of

Engineers, but that’s for Colonel Herndon to say, and that’s

for the Government to put that testimony on when we either

choose to dot it or the defendant chooses to do it.

The characterization of the lawsuit, as Your Honor

indicated, it is a claim that the State Government does not

enforce the State law, very similar to the citizen

rule-making action that citizens of the State of Florida had

to bring against the State to require the State to require

his client to get a permit to back-pump into Lake

Okeechobee.

Neither State DER nor South Florida Water

Management, as a matter of law, would follow the law; that

court case is a matter of record and they were forced by a

Citizens’ rule-making action to follow the law that the

legislature had put on the books.

Likewise, with regard to dairies to the north of

the lake, we say state law has required permits for years.

If we are wrong, then permits north of the lake won’t be

required, but if we are right, like the citizens’

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rule-making action, then his client should not be permitting

those daries to operate without permits and the Corp. of

Engineers has nothing to do with the state law that tells

DER or his client what they are supposed to do with respect

to pollution.

All that the South Florida, Central and South

Florida Flood Control Project deals with is the movement of

water, not with respect to the pollution put into that water

by various industries, and let me say this:

Since defense counsel has taken the liberty of

sighting analogies, let me say that from my eight years in

the Florida legislature, I never heard the argument that the

pollution control laws of the State of Florida were

unconstitutional because they were pre-empted by Congress

and by the central and South Florida Flood Control

District or the argument that the Swim Bill was

unconstitutional when I participated in writing it because

his client cannot budge without the Corps. of Engineers; nor

the argument that the outstanding Florida waters law was

inapplicable or couldn’t be enforced because the corps. of

Engineers or the Congress or the constitution prohibited

those laws from being passed.

The Florida legislature is clearly under the

impression that it can stop pollution in these state. We are

prepared to deal with his defense that the Federal

6

Government mandates the pollution.

We know that’s going to be the defense. We are

ready for it. That’s why 15 days ago, being the latest

meeting, but prior meetings to this, Colonel Herndon said

once again, in a coordination committee meeting of all of

the agencies that the United States Government represents in

this lawsuit, that I represent, Colonel Herndon said again,

"We are on board with this lawsuit and we want to move

forward and cooperate."

EPA said, "We are on board with this lawsuit and we

move forward and cooperate, And Interior said, "We are on

board."

If defense counsel believes that Colonel Herndon is

prepared to testify, that he wants a separate lawyer, then

he should have brought Colonel Herndon in here, but he knows

with respect to the truth in this matter that the corps. of

Engineers is being urged by him to be a defendant simply to

deal with the publicity aspects of this particular lawsuit,

to identify somebody else as causing the pollution.

In sum, if the Corps. of Engineers or federal law

requires this pollution, then the Corps., the federal law,

the United States Attorney, acting unitary in this

particular lawsuit as the plaintiff, will simply lose,

because that will be a defense that this court can

undertake.

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Two technical matters and then I will sit down. We

do represent – he says in his pleadings that there is

nothing but the mere assertion by the United States Attorney

that he represent the Corps.

Well, that’s what I get paid to do, to make those

mere assertions, and I make one of them today that I

represent the Corps. And, accordingly, if he wants to depose

the Corps., he doesn’t need a subpoena.

The Corps. is a party plaintiff. If he wants the

Colonel to come in here, he will pick up the telephone and

tell us. None of the complicated discovery, none of the

additional complications can come about if you bring in the

Corps. as a defendant, need come about because we are

prepared to produce everything under Rule 26, et cetera on

behalf of the Corps. and speak for the corps.

With respect to one lawsuit that he cited,

occasionally the Federal Government’s interests differ but

that particular lawsuit that he cited, the judge did not say

that the Federal Government could not represent both

agencies.

The Judge merely took it into account with respect

to a party that wanted to intervene. The defense counsel is

incorrect that the United States Government cannot be

represented in this court by on particular attorney.

In sum, the characterization of the lawsuit, as an

8

effort to shut down the flood control system is a

characterization designed to scare the public, number one;

and number two, to bring additional parties and additional

issues into the lawsuit to make it complicated.

The actual lawsuit asserts simply that where the

State of Florida has authority, and Your Honor certainly

will not disregard the supremacy clause and follow state law

over federal law; that’s a simple principle of judicial

construction and constitutionalism. Where the State of

Florida had authority to pass the laws it did and where they

are being violated, we want them enforced.

The Corp. of Engineers is in that regard not a

culprit in terms of violating the state laws that are

involved and to the extent that that is a factual issue, why

it should be presented in this court at the appropriate

time, rather than accepting broad characterizations of the

lawsuit over and above what the complaint says in order to

encourage the court to bring someone in as a defendant who

is already a party and already prepared to produce all the

information.

Now, Mr. Harrison has the legal argument but I know

you have a jury coming in, and particularly because the

claim was one with respect to the truth of what the United

States Attorney says in court, I thought I would address it

very quickly and we are prepared to do whichever you prefer.

9

THE COURT: Well, if you could state your position

in about two minutes, Mr. Harrison –

MR. HARRISON: That’s about all I need, Your Honor.

Mr. Lehtinen has covered the field pretty well.

To require the Corps. of engineers to be joined as a

defendant, they have relied on the proposition that there

are inconsistent obligations.

Your Honor, when the United States sues in tits

name, all the federal regulations, the Corps. of Engineers

regulations as well, walk into this courtroom with the

United States.

It would be ludicrous to assume that we are going

to ask Your Honor to order state defendants to violate

federal regulations. This lawsuit is only about the source

of the pollutants. The nutrients entering the water in the

first place.

We are not going to ask this court to shut off the

S-5A pump. We simply cannot do it . We have to have clean

water. It is the life blood Congress has mandated that

water be delivered to Everglades National park.

The hydro period, that hydro period would kill the

park but we have to have clean water. The nutrients are

presenting a slow death and, Your Honor, the dairy rule is a

perfect example.

They have taken actions which we hope culminate in

10

meaningful regulations outside this lawsuit – in the dairy

rule – one of the draft plans had teeth in it, performance

pay standards.

DER, from my understanding now, is trying to pull

some of those teeth, but they accomplished tat maneuver

without violating one Corps. of Engineers regulatory

schedule.

All we want to do is see that the same action takes

place in the EAA where the farmers are regulated.

This lawsuit, the decision in this suit was made by

the State of Florida in their laws. They chose to regulate

agricultural pollution. They chose not to exempt it, to

exempt non-pouring sources as the federal Government did in

the Clean Water Act. It is more properly left to the states

because of the different agriculture problems. The entire

defendants’ argument they start our with in their motion to

dismiss – it runs all through their joiner, all through

their reply, is simply to sidestep the factual issues in

this case and to characterize this case as something that

wants to – is a case that is geared to change the operation

of these structures. No, Your Honor, that is not the case.

We simply want clean water running through these structures.

We pointed to the state structures without permits

because it is that agency of these defendants that have the

 ability to clean the water, going through their own

11

structures so their structures would meet water quality.

That’s what this case is about with the Corps as a

plaintiff; Colonel Herndon is well on board. I even spoke

to him over the weekend.

He regrets that he could not be here but they

support the goals and they are powerless to regulate the

introduction of agricultural pollution to this system.

Thank You.

THE COURT: Al right, sir. Thank you.

MR. CROWLEY: Your Honor, I haven’t had an

opportunity to speak. I am David Crowley and I represent

the State Department of Environmental Regulations.

I would like to, if you could grant me a couple of

minutes, to address—

THE COURT: All right. Take about two minutes, it

you would.hate for you to come this far without having

an opportunity to say something.

MR. CROWLEY: Thank you, Your Honor. I am going to

condense this very quickly. I had a lot of things to say

but I am just going to try to keep it within the time frame

you said there. I am just very concerned about a couple of

things.

I am not saying that I think the United States is

intentionally trying to mislead you, but I think what is

happening here today is giving that effect.