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Deposition from SWIM Challenges Case No. 92-3038, 92-3039, and 92-3040 |
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Deposition from SWIM Challenges Case No. 92-3038, 92-3039, and 92-3040 |
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APPEARANCES:
DONNA H. STINSON, Esquire, Post Office Box 6526,
Tallahassee, Florida 32314, of counsel for Petitioners Sugar
Cane Growers Cooperative of Florida, Roth Farms, Inc., and
Wedgworth Farms, Inc.;
KEITH E. SAXE, Esquire, United States Department of
Justice, Environment & Natural Resources Division, General
Litigation Section, Post Office Box 663, Washington, D.C.
20044;
ROBERT ROSENBERG, Esquire, Assistant U.S. Attorney,
Miami Ave, Suite 600, Miami, Florida 33132.
MR. SAXE: Just a couple of notes on the
documents here.
We have some unusual circumstances because of
the short lead time, as one of the reasons, and
I'll explain.
We have had basically five working days, on
the notice, to get these together. What we have
not been able to do is pull all of the publications
referenced in the Document Attachment to the Notice
in the category listed on the C.V.
MS. STINSON: Okay.
MR. SAXE: Because there's a nine-page list of
documents.
MS. STINSON: Okay.
MR. SAXE: I have here a selection of
documents, that Dr. Boggess was able to pull in the
short time, that pertains directly to South
Florida, but as far as the balance of documents on
that list, do you want to consider some narrowing
of the volume of material that you're interested in
getting copies of, with an eye toward doing it
reciprocally with respect to Dr. Lysrick's as well.
MS. STINSON: Sure. I didn't have the
opportunity to look through his article list and I
can do that today, maybe in his deposition, and ask
him what the articles are about, and all I want are
the ones that are going to be reasonably relevant.
MR. SAXE: All right. Then I think that
certainly will be a lot less burdensome to address
and we can take that up as it comes up today.
MS. STINSON: Okay.
MR. SAXE: The other thing is, what I've been
able to do here is bring a set of responsive
documents and one copy, but we're not ready to
provide a copy yet for purposes of either
attachment as exhibits to the deposition or for
your use to take away from the deposition, for the
reason that we do a number control on the documents
and we need to put Bates numbers on the bottom of
each of these documents and we just have not been
able to do that in the quick spin-off time we have
had.
MS. STINSON: Okay.
MR. SAXE: So what I propose is that the set
of documents that we've been provided today can be
used as a working copy for the purposes of the
deposition, you can mark any that you would be
inclined to do so, for purposes of attachment to
the deposition transcript, but then what we have to
do is take the physical documents back with us, get
them number controlled, Bates numbered, and then
return them to you and/or the court reporter,
depending on whether they're marked as exhibits or
whether you just want to take copies.
MS. STINSON: Okay. We can work that out as I
see what it is that I want.
Now, if there are any that are not too long
that we want to attach to the deposition, I presume
we can just make copies today.
MR. SAXE: Well, the thing is, you see, they
won't be number controlled. You'll be making
copies of them without the Bates numbers on the
bottom, and before they become part of the record,
without that number control, our procedure is to
put those Bates numbers on them. That's the thing
that we normally do and we didn't have an
opportunity to do it in this short lead time.
MS. STINSON: Okay.
MR. SAXE: What we can do is we can take a
photocopy of the front page and the number of pages
involved in the document, if you wanted it for
control purposes, and then we'll just turn around
in a few days and get them back.
MS. STINSON: Okay.
Well, now, I need a few minutes to look
through them before we begin.
MR. SAXE: All right.
(Thereupon, a short recess was had; whereupon, the
following proceedings were held:)
Thereupon,
DR. WILLIAM G. BOGGESS,
being first duly sworn, testified as follows:
DIRECT EXAMINATION
BY MS. STINSON:
Q Would you please state your name and business
address.
A William Glen Boggess and it's 1105 McCarty Hall,
University of Florida, Gainesville.
Q Okay. What is your occupation?
A I'm a professor.
Q Of?
A Food and Resource Economics.
Q In what department?
A That is the department, Food and Resource Economics
Department.
Q Is that different from the Department of
Agriculture? Is that a separate department?
A That's a department in the College of Agriculture.
Q I see.
A And the College of Agriculture is a part of IFAS.
Q Okay.
A So if you hear IFAS that's the Institute for Food
and Agricultural Sciences, I guess.
Q Okay.
A All I know is IFAS.
Q Okay.
A Anyway, we're a department within that.
Q Okay.
A We're in that institute/college.
Q Okay. How long have you been associated with the
University of Florida?
A Since 1979.
Q I have here what I believe is a copy of your
r‚sum‚.
A Yes.
Q Since we can't attach this to the deposition, if
you would identify that and tell me if that's your r‚sum‚.
MR. SAXE: If it's okay, I don't see why this
could not be marked as exhibits.
MS. STINSON: Okay. Let's do that.
MR. SAXE: And then what I'll do, after we
have quickly turned them around to put the Bates
number at the bottom of each page, I'll just send
the exhibits to the reporter and send these other
documents that haven't been introduced, but
selected by you, directly to you.
MS. STINSON: Okay. Then let's mark it then.
THE WITNESS: This is my r‚sum‚, in response
to your question.
MS. STINSON: All right. We'll mark that as
No. 1.
(Dr. Boggess' r‚sum‚ so marked as Petitioners'
Exhibit No. 1.)
BY MS. STINSON:
Q Okay. Within your field do you specialize?
A Yes, I do.
Q What do you consider your specialty?
A My specialty is in production economics and sort of
the interaction between production, agriculture and the
environment.
Q Okay.
A Which, I guess, would be considered a branch of
resource economics, that environmental aspect. . .
Q Okay.
A . . .is sometimes considered part of resource
economics.
Q Okay. Tell me what production economics means.
A Okay. Production economics focuses on sort of the
production side of industry, business, agriculture. So cost
production, technological change, production functions, sort
of the production side as opposed to consumption or market
demand or marketing being another major branch.
Q Okay. Have you testified as an expert witness in
proceedings before?
A No, I have not.
Q Okay. I notice you got your Bachelor's at Iowa
State and your Ph.D. there as well?
A That's correct.
Q Without the intervening Master's degree?
A That's correct. I was admitted directly into the
Ph.D. program.
Q Okay. What did you do your Ph.D. work in?
A It's from the Department of Economics and my degree
reads Agricultural Economics.
Q Did you have a thesis topic?
A Yes. Dissertation was "A National Interregional
Analysis of Agricultural Policy and Its Conservation Policy",
sort of interactions between income policies and conservation
policies.
Q Okay. Would you say that that's related to what
you consider as one of your current specialties, the
relationship between production and environment?
A Yes.
Q Within this are there any branches of agriculture
which you specialize in?
I notice there was a lot of work on soybeans
and. . .
A By commodity branches?
Q Right.
A No, I haven't really.
There has been, at different times, different
commodities that I worked on, but I have no assigned
commodity responsibilities within the department.
Q Nor do you personally focus on any one branch?
A No.
Q Okay. You also specialize, to some respect, in
computer system software; is that correct, the application to
agriculture?
A That is correct.
Q Have you developed software?
A Yes.
Q I notice here there was a grant you worked on for
IBM for agricultural software development.
A Yes.
Q What was that for?
A IBM negotiated a major contract with the University
of Florida and within that it had several subcontracts with
different departments to develop specialized software for
microcomputers and Co-PI, and who actually took the lead on
that project, Dick Levins, who's listed there. He and I got
a subcontract to develop some basically management software
for agricultural purposes.
Q When you say management software. .
A Some programs to help calculate cost of production,
decisions to evaluate loan repayment, just a series of sort
of spreadsheet type application packages.
Q Are there any other major pieces of agricultural
software that you have developed, other than what I presume
you may need on a particular instance?
A The only other one that I was instrumental in would
be the computer model that was used in my dissertation.
Q What did that do?
A Well, it was part of a 컴 when I was at the Center
for Agricultural and World Development, at Iowa State
University, they had a long history of developing large scale
models of U.S. agriculture and using them to analyze
different policies of various types and my contribution to
that was to develop sort of a new version of one of those
large national models that was used in my dissertation to do
the particular analysis that I did, looking at the
interaction between the conservation policy and traditional
agricultural income policies.
So that model, to my knowledge, is no longer being
used in its present format. It was part of the Center and I
didn't bring it with me.
Q Okay. Is that something that you use on a regular
basis?
A Not anymore.
Q Okay. Are there major pieces of software that you
use on a regular basis, particularly in your work on the
relationship between production and environment? Are there
standard software programs or particular ones that you use?
A I guess the major analyses now are being done with
spreadsheets. So we use Lotus 1-2-3 and develop templates to
do whatever the particular task 컴 that's probably the major
one.
Q Okay.
A Another software package used in my work,
technicians do the actual computer work, is on Geographic
Information Systems, or GIS.
Q What is that?
A Geographic Information Systems are sort of a buzz
word for a combination of computer hardware and software that
allow you to do database management 컴 traditional database
management, like you might be familiar with it in a dBase
program or database management system, but have that geo-
referenced to map coordinates, so that that database can be
linked to specific locations and you can create maps that
show that at this particular location what the soil type is,
what crop is being produced, and you can do a lot of geo-
referencing.
Q Okay.
A You know, how far is that from a lake or how far is
that from town, or what have you, and that software has sort
of burst on the scene over the last decade or so and there's
quite a bit of work being done now using it to analyze.
Q Okay. Going through Exhibit 1, I notice also a
grant or contract with the South Florida Water Management
District, "Biogeochemical Behavior and Transport of
Phosphorus in the Lake Okeechobee Basin."
Were there any reports or documents, which you
produced as a result of that work?
A There is a completion report on that, I'm not even
sure my name is on that, that's part of 컴 that contract was
in the neighborhood of a two million dollar contract, across
multiple disciplines, at the university and this sub-section
was 컴 fifty thousand was sent to our department to help with
one area, three of that larger project.
Q What piece did you work on?
A We were looking at sort of the materials balance
aspects of phosphorus coming into and out of the basin. So
there was. . .
Q Okay.
A I'll explain that.
Q Okay.
A There was actually a graduate student who did the
work and the leader for Area 3 was Dr. Fluck in ag
engineering and we were sort of cooperators with him on that,
but the main thing they did there was take all the various
agricultural enterprises in the Lake Okeechobee basin and
materials balance 컴 you could say that if you have an
element coming in, in this case they were concerned about
phosphorus going into the lake, so the idea was to find out
all the sources of phosphorus that are brought into that
area, in the form of feeds or fertilizers or detergents,
whatever other phosphorus-containing material.
You account for all the materials coming in and
then you account for all the materials that leave the region,
in the way of milk or beef or oranges or any other product
that may be exported, and then the difference has to be going
someplace within that region, it either has to stored in the
soil or it has to be leaving, you know, either through runoff
or some other means.
So we were responsible for doing the initial
assessment, comparing dairies to beef cow/calf operations to
various types of industries that were in the Lake Okeechobee
basin and doing sort of an overall assessment of what the
materials balance flows looked like.
Q Did you get involved in the economics of that issue
at all?
A We do. That report did not do any economic
assessment of it, it was purely a materials balance.
Q Okay.
A I was going to say, the rest of that whole project
was looking at phosphorus flows in the soils. I mean, like I
said, it was a very large project and we had a very small
piece.
Q Right.
A The major focus of that biogeochemical behavior and
transport was what was the biogeochemical behavior of
phosphorus. So it's primarily a biochemistry and hydrologic,
so most of the money was spent on those other processes and
materials balance was just sort of an add-on.
Q Is there some kind of major report from IFAS on
that?
A Stacks.
Q Okay.
A I can get you a copy of the final report from Area
3, which is the part that I worked on. If you would want it.
It's probably like that (indicating).
Q What does Area 3 mean? I mean, is that a
geographical area?
A No.
Q A subject matter?
A A subject matter area that overall contracted, as I
remember, it had three areas and I forget what the other two
were. One of them would have been the biochemical part and
the other would probably have been the transport part, or
whatever.
Q Okay.
A And then there was this regional materials balance.
Q Okay.
A And there are copies of all the reports from all
that were available, either from IFAS or from the district.
Q Okay.
A I would think. I mean, that has been completed now
a few years.
Q Okay. There's also what looks like perhaps some
related work, a grant from the South Florida Water Management
District: "Comparative Assessment of BMPs and Phosphorus
Control Strategies for the Lake Okeechobee Basin."
A Yes.
Q Is there some kind of a document that was produced
as a result of that work?
A There's only two 컴 well, there's several things, I
guess. There are two papers that we provided in that pile
that came out of that work.
Q Okay.
A This is where we used 컴 began using the GIS system
and that contract was the basis for 컴 you'll see, like in
this particular one, you'll see reference to LOADSS Model,
Lake Okeechobee Agricultural Decision Support System.
Q Okay.
A This contract was for us to develop that system.
Q Okay. I'll be going through these, too.
A Okay.
Q So we can cross-reference here.
A Okay.
Q Other than what you provided to me today, are there
other documents as a result of that work?
A There are interim sub 컴 I guess you would call
them task reports, things like that, that were submitted to
the district periodically.
Q But you. . .
A There's no final report on that yet, because
there's another contract that you'll come to.
Q Okay.
A Or that you probably already noted, and that was an
extension of this particular study and it's been extended one
more time. So we still haven't hit final deadline on that
yet.
Q Okay.
A So there's no final summary report.
Q The next one, ERS, USDA.
What is ERS?
A The ERS is Economic Research Service, which is a
branch of USDA.
Q Okay. "Agriculture and Water Quality: An Area
Study of a Multicounty Site in Florida/Georgia." What area
was that?
A It was sort of the panhandle area, Jackson County,
and then the corresponding counties in southwest Georgia.
Q Peanuts and soybeans.
A Yeah, peanuts and soybeans dominate up there.
Q What did you look at in that study?
A That was a study that was done by a graduate
student of mine, while she was an intern with the Economic
Research Service, and they were wanting primarily sort of a
background study on what the issues are in that area and sort
of a comparative assessment of the environmental agencies and
laws and so forth and how they compare between Florida and
Georgia and Alabama, since they all sort of shared that area,
but they have vastly different departments and different
rules and so forth.
Q Okay.
A So that sort of lays out the lay of the land.
There was no formal analysis.
Q Okay. Let me back up for a minute.
I noticed also that you were a visiting person with
ERS, USDA, '85 to '86.
A Yes.
Q What is NRED?
A NRED stands for Natural Resource Economics
Division.
Q Of the ERS, USDA?
A It's a sub-branch. ERS is broken down by subject
matter areas. They have a policy area, they have a resource
area and so forth.
Q Okay.
A That was the resource economics branch.
Q When you did that, were you still located in
Gainesville?
A No, I was in Washington, D.C.
Q What work did you do while you were there?
A I worked on the implementation of the conservation
provisions at the 1985 컴 Security Act, and particularly the
Conservation Reserve Program.
Q Okay.
A Or CRP, oftentimes referred to.
Q Okay. Am I correct in understanding that that is
a program to set aside land?
A Yes, set aside program.
Q Okay. A grant from Dairy Farmers, Inc.: "The
Economic Impact of Dairy Rule in Okeechobee County, Florida."
I noticed in the documents there's some information
on that.
A Yes.
Q Have you provided me the report that you did as a
result of that?
A Yes, I did.
Q Okay. And South Florida Water Management District:
"Graphic Interface for Water Quality and Hydraulic Data in
LOADSS."
Have you provided me the documents?
A As I indicated, that's part of the follow-up, on
the follow-up contracts to that earlier South Florida
Comparative Assessment of BMPs.
Q And do you have documents as a result of that?
A We have a user's manual, that's really a software
package, so it was a draft user's manual that's been provided
to the district, and we can provide you with a copy of that,
if you would like. I have not provided that.
Q Okay.
A But it's available and that activity will all sort
of be summarized in the final report.
Q And when is that due?
A That's due in, I think, the end of March.
Q Okay.
A There's actually 컴 I have an update, so there's
actually another contract that was written this fall that
takes us through March.
Q All right.
A And that's basically enhancement of that model and
verification and validations. . .
MR. SAXE: Excuse me. Is this the document
that you want to collect from a list to have a copy
provided to you?
MS. STINSON: I'm not sure yet.
MR. SAXE: Oh, fine, we'll re-visit that.
MS. STINSON: Yes.
BY MS. STINSON:
Q Okay. What did you do in this contract? Did you
develop software or did you draw some economic conclusions,
or what was your. . .
A Our primary task has been to develop software.
Q Okay.
A The district has spent I don't know how many
millions of dollars studying Lake Okeechobee and how to solve
the problem, Lake Okeechobee, and when they first negotiated
with us to do the initial contract, what they were wanting
from us was for us to develop this GIS database management
system that would allow them to sort of organize all the
studies and all the research that had been done and allow
them to make some comparisons and do some analyses of
alternative ways of reducing the phosphorus load to the lake.
Q Okay.
A So our major effort has been to design that system
and get that system programmed and then load in the
information that had been developed under various other
contractors' reports, by the district, from whatever source
information was available to put it in the system, and then
they anticipate using that to do the actual analysis and draw
the conclusions about how they might want to proceed with the
SWIM Plan.
So we have not done any of the actual analyses or
alternatives or drawn any conclusion.
Q The SWIM Plan, you mean the Okeechobee. . .
A Okeechobee SWIM Plan.
Q SWIM Plan.
A Correct.
Q All right. Does that program contain or have
provision for analyzing economic information?
A Yes, it has. The databases are set up to store and
allow you to manipulate sort of the cost of implementing
different BMPs.
Q Okay. Going through publication, when you co-
authored on "Agriculture and Water Quality: Where Are We and
Why."
A Yes.
Q If you can, tell me if there's anything pertinent
or specifically relevant to the Everglades area in that
chapter.
A No, that's 컴 I can get you a copy of that, that's
a general book and Dr. Lynne and I were asked to sort of
write this introductory chapter on sort of the lay of the
land, just interactions between agriculture and water
quality. So it's generic, sort of the U.S. and, to some
extent, the book has an international perspective.
Q Okay.
A So there's nothing specific with respect to Florida
or the AA.
Q Okay. "Decision Support Systems for Sustainable
Agriculture."
Tell me what that means. Is this a computer issue
or. . .
A This is 컴 let's see. Doctor Jones is the lead on
that.
Decision support systems are sort of another buzz
word, it's a little like GIS in academia. There's sort of a
new buzz word that goes around every now and then.
Q Okay.
A But decision support systems are using computer
systems that are designed to manipulate information that
allows the decision maker to analyze, you know, some specific
decision more effectively.
Q Okay.
MR. SAXE: I'm sorry, which entry are we on in
Chapters in Books?
MS. STINSON: The third from the bottom.
THE WITNESS: Jones and Bowen.
MR. SAXE: Thanks.
BY MS. STINSON:
Q The next one obviously has some Florida tilt to it.
A Yes.
Q Rather than ask you about it, I'll ask you if you
would provide that.
A It's in what I've provided.
Q Okay. That's "Florida's Experience with Managing
Nonpoint Source Phosphorus Runoff into Lake Okeechobee."
A Correct.
Q Okay. The top of page 3 of your r‚sum‚,
"Importance, Causes and Management Responses to Farm Risks:
Evidence from Florida and Alabama."
A Yes.
Q What is that about?
A That's a summary of a joint survey effort that was
done by myself and Dr. Hanson, it was at Auburn at the time.
Kwabena Anaman was a graduate student.
We surveyed farmers again in Jackson County and an
adjoining county in Alabama, basically had them sort of rank
relative importance of different sources of risk in their
farming operations and also asked them what sort of decisions
or mechanisms they used to ameliorate the impacts of that
risk.
Q What types of risks, for example?
A An example, it would be price variability,
variation in interest rates, climate, weather, pests,
pressures, there's also concerns about labor availability.
So it's sort of a whole list of possible factors that might
be uncertain.
Q And what you did was just analyze the results of
the survey?
A Yes, we summarized, basically, the response to that
survey.
Q Summarized.
A Yes.
Q Okay.
A And we tried to lay out what they thought was most
important and what sort of management responses they took to
ameliorate the impacts.
Q Okay. Halfway down, "Agricultural Nonpoint
Pollution: A Regulatory Dilemma."
Is that related to your work on Lake Okeechobee?
A No, that predates that.
I would have to pull that out to see. . .
Q What it's about?
A What it's about.
Roy was the lead author there, so that means that
he probably did the first drafting on it.
Q Okay.
A To be honest with you, I don't know what case we
were making in that one, but that was prior to my involvement
with Okeechobee.
Q Okay.
How about the next one, "The Implications of
Reliability Theory for Environmental Institutional Design and
Decision Making"?
Explain that to me.
A That was an invited paper that Dr. Milon and I
worked on. Reliability theory is a theory of decision making
under uncertainty and that we basically explored the
implications of that theory for decision making and how it
might relate to policy makers, who were having to design
environmental policies when there was considerable
uncertainty about the impacts of the policies or the
implications of it.
Q Okay.
A So that's sort of a theoretical exploration on how
that theory might be useful.
Q I would like a copy of that, please.
A Okay.
MR. SAXE: Excuse me. Are you going to keep
a list of the ones that you would like a copy of,
or would you like us to make an indication,
because. . .
MS. STINSON: I'll tell you what. When I
finish running through this I'll go back and list
which ones I do want.
MR. SAXE: Okay. That's fine.
BY MS. STINSON:
Q All right. The next one, "Coordination of Public
and Private Action: A Case Study of Lake Restoration."
Is that a Florida based. . .
A That looks like Apopka, near Orlando.
Q Okay. Skipping down to "FinARS: A Financial
Analysis Review System."
A Yes, I see it.
Q Third from the bottom.
A Yes.
Q That's a review system to financially analyze what?
A That's a little computer package that uses expert
system softwear to 컴 it works much like a doctor diagnosing
a firm's financial health. You feed the program certain key
financial information and it calculated ratios and sort of
like takes a temperature of the business and the blood
pressure and indicates whether or not there's serious
concerns that you might want to look at.
Q Is this specifically related to an agricultural
business or can it be applied generically?
A We tried to write that one to be generic, so it
doesn't get very specific. That's one of the problems. If
you were going to use it in oranges in Florida versus corn
production in Iowa, you would want it to do slightly
different things. So we used it much like a doctor would do
an initial diagnosis. If you have a bad fever it's probably
something you ought to look at, regardless where the fever
came from.
Q Okay.
A We use it primarily in teaching applications.
Q Okay.
A To get the student to understand how to do
financial ratio analyses.
Q Okay. On page 4, the third from the bottom, "Farm
Risks: Their Importance, Their Causes and Farmers'
Responses."
A Yes.
Q Is that the same work that was published. . .
A Yes.
Q . . .regarding the Jackson, Alabama?
A That's an abstract of an earlier version of that
paper that was presented at that meeting.
Q Okay. On page 5, about halfway down there's an
abstract for sugar cane seminar, "Use of Expert Systems to
Enhance Agricultural Financial Decisions."
A Yes.
Q Is that a paper that you gave at a seminar?
A Yes, and that relates back to that FinARS package.
Q Okay. The last one, under Abstracts, "Integrating
Economics and Environmental Considerations into the
Fertilizer Decision Process."
Tell me what that involves.
A That is part of Mr. Mentonelli's thesis research
and basically we looked at sort of procedurally how 컴 well,
traditionally a lot of fertilizer decision analysis in
economics would be looking at sort of what is the optimal
level of fertilization from a profitability standpoint.
Q Okay.
A And we wanted to sort of expand that to take into
account the environmental concerns that you might also be
worried about, potential leaching or runoff of nutrients, and
so giving an analytical framework, which you could sort of
look at, the profitability dimensions as well as an initial
estimation of what the potential environmental impact might
be.
Q Did you look at the experiments in the Lake
Okeechobee area of the Everglades' agricultural area in
there?
A This was not specific to those areas, in fact, the
data he used was from some corn production, corn experiments
in Jackson County.
Q Okay.
Then on page 7, next to the last thing.
A Yes.
Q That sounds like the same work, a different paper
on the same work.
A That's correct.
Q Okay.
Turning to page 9, the fourth one down,
"Agricultural and Water Quality in the Southeastern Coastal
Plains: A Descriptive Analysis."
A Yes.
Q Tell me what that is.
A That's a report that was prepared under that one
contract that you asked me about that was the multicounty
site in Florida and Alabama.
Q Okay.
A Do you want to go back to that ERS, "Agriculture
and Water Quality: An Area Study of Multicounty Site in
Florida/Georgia"?
Q Okay.
A That was a staff paper that Ms. Purvis, a student
of mine, prepared part of that contract.
Q But it did not address the Everglades' area.
A No, it's in the southeastern coastal plains, which
is that area that runs through Alabama, north Florida,
Georgia, where they have the peanuts and soybeans.
Q Okay. Let me back up and tell you what I want.
MR. SAXE: Let's check them off on this copy.
THE WITNESS: Okay.
BY MS. STINSON:
Q If you have already given them to me, just let me
know that they're in here.
A Okay.
Q Because I forgot what you told me you have given
me.
The documents that you have, with respect to the
biogeochemical behavior, et cetera, the grant for the South
Florida Water Management.
A Okay. I'm not even sure they're on here.
Q Well, it's under Grants and Contracts, rather than
under. . .
A Yeah, but I don't think those reports are listed as
a publication, but I can get those for you.
Q Okay.
A So you want the final reports.
Q Okay. I think you indicated that number eight, under
Grants and Contracts, you have given me "Comparative Assessment
of BMPs and Phosphorus Control Strategies for the Lake
Okeechobee Basin." That's something that's in this pile?
A Right.
Q Okay.
A There are two papers that relate to that work.
Q Okay. Similarly, number twelve, under Grants and
Contracts, is in here, the LOADSS information?
A Well, number eight actually was the main grant that
LOADSS was developed under.
Q Okay.
A And number twelve was another contract to add
dimension to the LOADSS model, this "Graphic Interface" is
one aspect of that.
Q Okay.
A So the two papers that I have in there describe the
whole system that has the graphic interface part of the
LOADSS system.
Q Okay.
A There is a user's guide 컴 draft user's guide
available for that, called the Log-In, Lake Okeechobee
Graphic Interface, something like that.
Q Okay.
A The first thing you do, when you do computer
modeling, is you come up with an acronym.
Q Right.
A But there is a draft user's guide for that, if you
would be interested, and it's designed for someone to sit
down and make sure you hit this key and this is what's going
to happen here.
Q All right.
A And that can be provided, if you're curious.
Q Yes, please, the User's Manual.
Okay. The chapter on "Florida's Experience with
Managing Nonpoint Source Phosphorus Runoff into Lake
Okeechobee."
A That's been provided.
Q Okay.
Looking now on page 3, "The Implications of
Reliability Theory for Environmental Institutional Design and
Decision Making."
A Yes.
Q I would like a copy of that.
A Okay.
Q I think that does it on the copies.
Were both your Bachelor's and Ph.D. within the
economics departments?
A My Bachelor's was a double major and agricultural
business was sort of the primary one, which was administered
through the economics department.
Q Okay.
A I also got a joint major in farm operation, they
called it at that time, which was more practical, a
multidisciplinary one, but I was advised, through the
economics department, because of my agricultural business
primary major and also Ph.D. was from the economics
department. It was a joint department there at Iowa
State.
Q Okay. Let me next go through these documents, and
some of these you have already explained to me.
Okay. I have one here titled, "GIS Based Decision
Support System for Regional Environmental Planning."
Is that work that you did in conjunction with South
Florida Water Management District?
A That's correct.
MR. SAXE: Let me take a look at what you're
looking at.
BY MS. STINSON:
Q All right. The one right under it is called, "Lake
Okeechobee Agricultural Decision Support System."
Are these pretty much the same document?
A This was, I forget the date on that one, but this
was done two years ago, this was an earlier report on the
model, and this was just completed in December.
Q Okay.
A And it's sort of an update of this model.
Q So the one. . .
A They're very similar, but this one is the more
recent, the more up-to-date.
Q Okay. So that the record will understand, you say
the more up-to-date is the one titled, "A GIS Based Decision
Support System. . ." et cetera?
A Correct.
Q Okay.
MR. SAXE: Have you already tagged these or
otherwise indicated that these are the ones that
you want copies of?
MS. STINSON: I have.
MR. SAXE: All right. Fine.
MS. STINSON: I'm just identifying and
confirming some things here.
MR. SAXE: All right.
BY MS. STINSON:
Q The one entitled "Florida's Experience with
Managing Nonpoint Source Phosphorus Runoff," you did in
conjunction for your work with the water management district;
is that correct?
A That work was not a part of the formal contract.
That was done for 컴 as sort of an invited contribution to a
regional research committee.
Q Is it based on the work that you did for the South
Florida Water Management District?
A Some of it and some of it is based on work that was
done for Dairy Farmers, Incorporated, on the Dairy Rule.
Q Okay.
A So it's really more of a historical, you know, for
people who hadn't lived twenty years down there: Here's what
happened.
Q Okay.
A Background.
Q Okay.
A This was not a contractual product.
Q All right. The document entitled "The Economic
Impact of the Dairy Rule. . ." et cetera, that was funded by
the Florida Dairy Industry; is that correct?
A That's correct.
Q Okay. I was told recently that you were quoted in
the most recent Florida Trend. Is that related to the work
that you did for the Florida Dairy Industry?
A Yes, that's correct.
Q Okay. And that work would be reflected in this
paper I just showed you?
A Yes.
Q Okay.
MR. SAXE: Clarification.
Your question was, that the work would be
reflected in that paper?
MS. STINSON: My question was, was the
interview that he had with Florida Trend relative
to the work he did for the Florida Dairy Industry.
MR. SAXE: Okay.
MS. STINSON: Which is the work 컴 the work he
did for the Dairy Industry is reflected in the
paper titled "The Economic Impact of the Dairy Rule
on Dairies in the Lake Okeechobee Drainage Basin."
BY MS. STINSON:
Q Is that correct?
A Yes, that's correct.
MR. SAXE: Thank you.
BY MS. STINSON:
Q Okay.
A There's a companion report that I did not author,
that that report refers to, that Mulkey and Clouser.
Q Okay.
A That was all part of that one contract.
Q There's a document here, relatively new, June 1992,
entitled "On the Use of Marketable Emission Credits to Help
Preserve the Everglades: Observations and Suggestions."
A Yes.
Q Can you tell me the background for this work?
A That was written in response to Dr. Hahn's proposal
to use emission credits in the Everglades and I received a
copy of his proposal and decided that it would be useful to
provide some background on marketable emission permits and
sort of, to some extent, critique that proposal and add some
additional options that they might want to consider.
Q Okay.
A So that's where that came about.
Q Is this work funded through a grant with the water
management district?
A No.
Q Or anyone?
A No.
Q Simply used at the University of Florida.
A With an interest in that area.
Q Did anyone in particular request that you review
Dr. Hahn or. . .
A No, I just happened to get a copy and thought it
was an interesting idea and decided I would write about it.
Q Is this paper going to be published or is it
published anywhere?
A No. As it indicates, it's a staff paper, which is
circulated without formal review.
Q Okay.
A And there's no follow-up plans to publish it.
Q Have you made any presentations based on this work?
A I participated in 컴 what do they call it 컴 it's
district organized, a workshop, and invited Dr. Hahn and Dr.
Dendy and myself down, I believe it was in September.
Q Okay.
A And we sort of had an informal discussion of the
concept and took questions from the audience and that part of
my comments at that meeting were based on this work and some
additional thinking and review that I had in preparation for
that meeting.
Q Okay. There's a report here called "Cost and
Returns for Rice Production on Muck Soils in Florida in
1992."
Was this done through any grant or contract?
A That's Dr. Alvarez' work, not mine.
Q Correct. Is he in your department?
A He's an economist and he's stationed at Belle
Glade.
Q Okay.
A Technically he's been reassigned to the Belle Glade
station. Previously he was part of the department.
Q Okay.
A But I think formal, administratively, he reports to
the Belle Glade station and not to the chairman.
Q Okay.
A But he's tenured in our department.
Q Okay. Do you know if this work was done pursuant
to any contract or grant or. . .
A I don't know.
Q Or why it was done?
A I know it was done, through reading the preface,
because he was being asked a lot of questions about the cost
of rice production. . .
Q Okay.
A . . .by various consultants and government
officials.
Q Okay.
A I only know what he states in the comments about
why he did that.
Q Does that mean then that you had no role in
developing this document?
A No, no role.
Q Okay. Similarly, a much older document, "Effective
Prior Rice Culture on Sugar Cane Yields in Florida," did you
have any role in that document?
A No, I did not.
Q Okay. Here's a document entitled "The Economic
Impact of the Dairy Industry in Okeechobee County, Florida,"
by Mulkey and Clouser.
Was that related to your work on that same issue?
A Right, that was a companion report that was
prepared under the Dairy Farmer's contract.
Q Okay. Mulkey and Clouser are also professors in
your department?
A That's correct.
Q Okay. Another document by Dr. Alvarez, "Cost and
Returns for Sugar Cane Production on Muck Soils in Florida in
1991."
Do you have any role in that document?
A No, I didn't.
MS. STINSON: Off the record.
(Thereupon, a discussion was had off record;
whereupon, the following proceedings were held:)
BY MS. STINSON:
Q A document entitled "The Economic Impact of the
Florida Sugar Industry," by Mulkey and Clouser.
Did you have any role in the preparation of that
document?
A No, I didn't.
Q Okay.
MR. SAXE: Let me locate where you are in the
copies back here.
(Thereupon, a discussion was had off record;
whereupon, the following proceedings were held:)
BY MS. STINSON:
Q Okay. There are a series of what looks like
newsletters, "Food and Resource Economics: Sugar Policy
Series."
Is that a regularly produced document?
A I think that's a complete set of those.
Q Okay.
A You know, that I'm aware of anyway, and it was
fairly regular there for a while, but I don't know if they're
still continuing it or not.
Q Did you have any role in the production of these
documents?
A No, I did not.
Q But, to your knowledge, that is no longer ongoing?
A The last one here that I know of is July '92.
Q Okay.
A So I don't know of any since then.
Q Okay.
A But. . .
Q Well, I notice the one before that, number seven
was July '92 and number six is May '91.
Am I correct in assuming that there wasn't one
between May '91 and July '92?
A To my knowledge there wasn't one.
Q Okay.
There's a document entitled, "Supply Response of
the Florida Cane Sugar Industry and Related Policy
Implications."
Did you have any role in that document?
A No, I did not.
Q You did not have any role in the depositions.
A No.
Q Okay. Here's, stapled together, a series of graphs
and what looks like might be papers for overhead
presentation.
The first graph says, "CST Response for
Hypothetical Crop."
Can you tell me what that document is?
A I'm not exactly sure.
This was or this is part of an analysis of BMPs.
Q Did you do the work?
A I didn't do the work. This was provided to me and
I'm trying to remember who provided it and I'm not sure whose
work it is.
Q Is it somebody within IFAS?
MR. SAXE: May I see the original. It's
possible that these were broken off from something
else in the copying process.
MS. STINSON: It was on top of that.
MR. SAXE: Right.
Okay, thank you.
BY MS. STINSON:
Q Okay.
A I think, just looking at it, I'm not sure, but I
think it's part of the voucher that Bottcher and Izuno 컴
they're both people in IFAS.
Q Okay.
A But it doesn't say who did it, but that would be my
best educated guess at this moment.
Q Okay. The next document is similarly a series of
graphs and perhaps something for overhead slides, entitled
"Individual Event Concentration PZ," is that your document?
A No.
Q Do you know what it is?
A I believe it's a companion document to the one we
just talked about.
Q Okay. When you indicated that you thought those
two graph compilations were part of Bottcher and Izuno's
work, is that related to "The Procedural Guide for the
Development of Farm Level Best Management Practice
Plans. . ." et cetera, by Bottcher and Izuno?
A To the best of my knowledge, yes, that's all part
of that same effort.
Q Okay.
A There may be multiple contracts, I'm not quite sure
what the arrangements were with the district.
Q Did you have any participation in that one?
A No.
Q Did you have any involvement in the development,
review or analysis of the BMP Rule? And when I say that, do
you know what I'm talking about?
A Not for sure, no.
Q Okay. Rule of the water management district
relating to the reduction in the emission of phosphorus off
of the EAA.
A No.
MR. SAXE: A limited objection.
This question may exceed the scope of
discovery to the extent it inquires into work that
Dr. Boggess has done as a non-testifying expert
consultant for the United States.
Dr. Boggess has been listed, for protective
purposes, in the event that economic impact issues
are determined to be relevant in the proceeding by
the hearing officer, but absent a ruling to that
effect, it's presently the United States' position
that there are no economic impact issues in the
case.
So at this juncture the United States neither
expects nor intends to present any testimony
through Dr. Boggess concerning the matters for
which he has been retained as an expert consultant.
So I'm going to instruct the witness to answer
the question only to the extent that he can do so
outside the context of his work as a non-testifying
expert consultant, based either on work done before
he was retained, work done independent of the
consultancy or any information that you might
present to him in a hypothetical form today.
MS. STINSON: Okay. You've confused me.
Okay. I only asked if he was involved in the
development or review of the BMP Rule.
MR. SAXE: I understand.
MS. STINSON: And I think he's already
answered and said no.
MR. SAXE: No.
MS. STINSON: Let me. . .
BY MS. STINSON:
Q Is that correct, you were not involved?
A I was not involved in the development of the rule.
Q Okay. Were you involved in analyzing or reviewing
that rule?
A Prior to its implication?
Q Anytime. When it was being developed or
afterwards, did you talk to people at the water management
district about the BMP practices for the EAA?
A No, no interaction outside the scope of discussions
with counsel.
Q Okay. I just want to know what involvement you
had, if any, not the substance of any discussion you may have
had with counsel, but your last answer leads me to believe
that you have had some participation, you have looked at that
rule and you have had discussions about your analysis of the
BMP Rule; is that correct?
MR. SAXE: Object to the form.
BY MS. STINSON:
Q Okay. You can answer.
A Yes, we have had 컴 we have talked about the
essence of the BMP Rule.
Q Okay.
A And what some of the implications may be.
Q Okay. You say "we," you mean who?
A Counsel.
Q For the United States?
A For the Justice Department.
Q Okay.
So that I'm clear, your review would be from an
economic or was that from an economic standpoint?
MR. SAXE: Objection. I have instructed the
witness not to answer concerning his activities as
a non-testifying expert litigation consultant and
I'm instructing the witness to answer only to the
extent that he can do so based on work done
independently of his work, as a non-testifying
expert litigation consultant, for the United
States.
MS. STINSON: Well, let me ask you a question.
Is this a non-testifying litigation consultant
in these DOAH proceedings that we're here on the
deposition here today?
MR. SAXE: Absolutely.
MS. STINSON: Okay.
BY MS. STINSON:
Q Let me ask you this, Dr. Boggess.
Your review and comments or opinions on the impact
of the BMP Rule, are those related to economic or potential
economic impact of the Everglades' Restoration Program, the
Everglades' SWIM Plan?
MR. SAXE: Do you understand the question?
THE WITNESS: Sort of, but I don't know how to
proceed.
MR. SAXE: Could you restate the question.
MS. STINSON: Okay.
BY MS. STINSON:
Q Let's see if I can do it in a more direct way.
You answered a previous question by saying you have
had discussions about the implications of the BMP Rule.
A Yes.
Q Do those implications affect or could they affect
the economic consequences of the Everglades' Restoration
Program?
A Yes, I would say that it was the nature of those
discussions.
MS. STINSON: Okay. In that case, Mr. Saxe,
he has been identified to speak about the economic
impacts of the Everglades' Restoration Program, so
insofar as the BMP Rule affects the economic
impacts of the Everglades' Restoration Program, I
think I'm entitled to inquire as to that
relationship.
MR. SAXE: Okay. Let me explain my objection.
I'll address that.
MS. STINSON: Okay.
MR. SAXE: It's a prematurity problem and
perhaps ultimately an entire relevancy problem, but
because the matter is pending before the hearing
officer now, it's most easily, I think, discussed
as a prematurity problem.
Our position is that Dr. Boggess is listed on
the United States' witness list for protective
purposes, in the event that matters now pending
before the hearing officer are determined in such a
way that economic impact issues are determined
relative.
MS. STINSON: Correct.
MR. SAXE: At this juncture, Dr. Boggess is
not a testifying expert witness, in the sense that
the United States neither expects nor intends to
present any testimony to Dr. Boggess on those
issues. So at this juncture, in that capacity, he
is a non-testifying expert consultant and not
subject to discovery in the line of questions that
you may be pursuing.
That is the line that I'm trying to draw here.
What I've suggested is 컴 my instruction to
the witness not to answer a question, based on the
scope of discovery, is limited to the witness'
work, if any, as a non-testifying expert
consultant. So to the extent that Dr. Boggess can
answer any question you ask, based on the work he
did before he was retained or work he's done since,
independent of his expert consultancy or
information that you might present to him today in
the form of a hypothetical, then that would be
outside of my instruction to the witness not to
answer. Anything else would be within the
instruction not to answer.
MS. STINSON: Okay. Are you telling me then,
for example, that if you asked him to look at the
Hezen and Sawyer report and tell you what he
thought of it, that I'm not entitled to inquire
into that, unless he had done it independently of
this litigation?
MR. SAXE: Not quite, but close.
I won't say that you're not entitled to
inquire into the fact of that relationship.
MS. STINSON: But the substance.
MR. SAXE: But the substance, yes.
MS. STINSON: So. . .
MR. SAXE: Any opinions formed, materials
considered, grounds for opinions, would all fall,
at the present time, under the rule brick of facts,
opinions and grounds of a non-testifying expert
consultant retained in anticipation of litigation
under the Florida Rules of Civil Procedure.
MS. STINSON: So, if, in fact, the hearing
officer rules that economic issues are relevant,
and I understand it's your position that they are
not. . .
MR. SAXE: Right.
MS. STINSON: . . .then I need to come back
and redepose Dr. Boggess to get the substance of
his opinions on the economic effects of the
Everglades' Restoration Program, because you are
not going to let him tell me what those opinions
are now.
MR. SAXE: Well, I won't say that you would
need to come back and redepose him, that certainly
would be your exercise of discretion, but I will
not presently instruct him 컴 I will instruct him
presently not to answer the question that you just
described.
MS. STINSON: Okay. And you acknowledge that
if those issues are made relevant, by order of the
hearing officer, that I am entitled then to come
back and depose him on what his opinions are on the
economic impacts of the Everglades' Restoration
Program, because you're not allowing him now to
testify to get his opinions developed for this
litigation.
MR. SAXE: Yes.
MS. STINSON: Okay.
MR. SAXE: Let me clarify that.
MS. STINSON: Okay.
MR. SAXE: To the extent that it would fall
within the scope of his expected or intended
testimony as an expert witness, and that's defined
by the characterization in the United States'
supplemental witness list designation, and to the
extent it was within the scope of discovery,
certainly that material would be fair material for
discovery.
MS. STINSON: But at this point it is not.
MR. SAXE: At this point it is 컴 like I said,
it's either premature or it's never going to be,
depending on the determination of the hearing
officer.
MS. STINSON: Okay. For future references, I
presume that will be the United States' position on
all your economic witnesses.
MR. SAXE: United States' position concerning
economics, as articulated in the briefing rounds
and arguments to date, has been that there's a very
limited relevancy of economics. We have identified
several arguable economic elements that are
properly addressed in these proceedings and that is
the presence in the SWIM Plan of a reasonable
estimate of actual costs and the presence in the
SWIM Plan of an adequate identification of sources
of funding, but beyond that, in terms of economic
impact issues, cost justification issues, et
cetera, et cetera, the United States' position is
that those matters are not properly at issue,
they're not relevant in these proceedings, and that
does apply to all the witnesses that you might
characterize as economic experts listed by the
United States. They all have been listed in their
protective conditional format for that reason.
MS. STINSON: Okay. Let me just state on the
record that as this is discovery, and pending
resolution of those issues by the hearing officer,
it's my position that I should be entitled to
discover in the event those become part of this
proceeding, and that should the economic issues
become part of this proceeding that I would intend
to ask for attorney's fees for the cost of
redeposing Dr. Boggess.
MR. SAXE: I understand your position. I
don't agree with it.
MS. STINSON: Obviously.
Okay. Just so you know.
I've probably said this ten times, but I want
it real clear on the record.
Your position is, at this point, that you will
object to any questions from me to Dr. Boggess,
instruct him not to answer, as to his opinions
developed for this litigation on the subject of
economic impacts of the Everglades' Restoration
Program, because at this point you say he is a non-
testifying expert. . .
MR. SAXE: I will object to any questions that
inquire into the opinions held by Dr. Boggess in
preparation for these proceedings in anticipation
of litigation, period, because he sits here today
as really not a testifying expert witness, subject
to discovery under the Rules of Civil Procedure.
MS. STINSON: Okay.
MR. SAXE: But because we have the difficulty
of a pending motion and the coordination between
the timing, the deadline requirements for listing
witnesses, when there is pending 컴 the question of
the proper scope of discovery, we have a
coordination problem, and this is one of the
reasons I suggest to you that the efficiency of
this discovery is going to be well-served if we
revisit the timing question of these economics
expert depositions.
MS. STINSON: We may revisit it with the
hearing officer.
BY MS. STINSON:
Q Okay. Just back with questions on the documents,
Dr. Boggess.
There are two publications here from the USDA. One
entitled, "Latin America's Big Three Sugar Producers in
Transition: Cuba, Mexico and Brazil." The other one, "The
World Sugar Market Government Intervention and Multilateral
Policy Reform."
Did you have any role in the preparation of either
of these documents?
A No, I didn't.
Q Okay. Have you used them in any work that you have
done?
A No, I haven't.
Q Actually, there's a third one, "Sugar Background
for 1990 Farm Legislation."
Did you have any role in that document?
A No.
Q Again, there's a stack in a rubber band called
"Agriculture Outlook Conference of the USDA," various papers
on sugar and sweeteners.
A Yes.
Q Did you have any role in that conference?
A No, I did not.
Q Can you tell me why you have these documents?
A They were given to me.
Q Why would they be given to you?
Let me ask you, who gave them to you?
A Ron Buznell 컴 Pete Buznell gave them to me.
Q Who is he?
A He's the author on some of them. He's with
ERS-USDA.
Q Okay.
A In the sugar branch.
Q Do you know why he gave them to you?
A Well, I was collecting information on sugar.
Q Is that in conjunction with your work in this
litigation?
A Correct.
Q Okay.
Okay. You have here what I call the Hezen and
Sawyer report.
A Yes.
Q Have you reviewed that report?
A Yes, I have.
Q And I understand your attorney will instruct you
not to answer if I ask you if you have any opinions on it or
what your opinions are, but let me ask you this: Have you
formed opinions with regard to the work done in the Hezen and
Sawyer report?
MR. SAXE: Same objection and same
instruction.
I don't think that's a proper inquiry of a
non-testifying expert consultant, even whether the
expert has opinions.
MS. STINSON: Well, we'll be back.
MR. SAXE: Counsel, it's not my intent to
frustrate your questions and so I did indicate, and
let me repeat that, to the extent that the witness
has opinions or can testify to facts or information
or other matters outside the context of his expert
consultancy, I'm not going to instruct him not to
answer, based on the scope of discovery, and that
would include, as I see it, the ability to present
information to him as an expert, in the form of a
hypothetical question, should you desire to do so,
as well as, as I indicated, any and all work he's
done before he was retained, his background.
MS. STINSON: Well, it's real difficult to
form hypotheticals if I don't know what it is he's
formed opinions on. I would be shooting in the
dark.
BY MS. STINSON:
Q Okay. There's correspondence in here to you from the
Environmental Defense Funding, enclosing their analysis and
suggested modification of the South Florida Sugar Cane League's
proposal to remedy the Everglades' pollution problem.
How is it that you came to be sent that
information?
A I believe that was sent to me when the
Environmental Defense Fund found out about the workshop that
the district had set up and they invited Dr. Hahn and myself
and Dr. Dendy, and that arrived in the mail with a couple of
letters saying: Here's our position, we hope you have a
chance to look at it before the workshop on Tuesday. It was
sort of unsolicited.
Q Okay. There's also a series of documents clipped
together, the first page: "Marketable Permit Issues for
Discussion." It looks like they were printed up to be
overhead.
Is this something that you prepared?
A Yes.
Q Was that for that September meeting that you just
mentioned?
A That's correct.
Q Okay. The next one, the document called
"Marketable Permit Issue for Discussions." Is that also
notes that you prepared for that meeting?
A That's correct. That's an outline.
Q That document is dated September 28th, 1992. Is
that the date of the meeting?
A I'm not exactly sure what date the meeting was. It
was near there.
Q Okay.
A You know, give or take a day or two.
Q Okay. There's a document from Dr. Hahn to Tom
McVickor, enclosing a response to your analysis of his
proposal, correct?
A That's correct.
Q And there are some handwritten notes in the margin.
Are those your notes?
A That's correct.
Q And the document entitled "A Market Base Approach
for Preserving the Everglades," by Robert W. Hahn.
Is that the proposal that you reviewed?
A Yes.
Q And that proposal and your review were discussed in
the September '92 meeting?
A Actually I believe that one is the overheads off
Dr. Hahn's proposal.
Q Okay.
A That he presented at that same meeting.
Q Okay.
A And there was one stuck on the back.
Q Right.
A Okay.
Q Dr. Boggess, apart from your consulting work in
connection with the challenge to the SWIM Plan, the
litigation involving the challenge to the SWIM Plan, have you
done any work in reviewing the SWIM Plan or the economic
analysis of the SWIM Plan or the projects proposed to
allegedly restore the Everglades?
A I have not done anything with respect to reviewing
the SWIM Plan itself.
I did meet with Dr. Johns when she first began her
work. She came up to Gainesville and met with a number of us
in the department to discuss a plan of work, how she
anticipated going about it, gathering up publications that
might be relevant.
Q Okay. Did you meet with Dr. Johns?
A Yes.
Q And can you tell me the substance of her
discussions, the best you can recall, and how much time you
spent?
A We spent two or three hours. She had 컴 that time
she had a series of overheads that she had been using to go
around and talk with various groups to explain what her tasks
were and how she anticipated going about achieving those
tasks, and so she went through those as a way of sort of
briefing us on what she had planned and soliciting any
suggestions we might have on key people she should talk to or
data sources or references, or what have you.
So she was asking for input on how best to proceed.
Q And after that meeting, did you have any
involvement with her in the development of their review?
A I was instrumental in her obtaining the Flipsim
computer model.
Q Okay. Was it you that suggested that she use the
model in the analysis?
A That had been used in the Okeechobee study and they
inquired about it.
We discussed sort of the pluses and minuses of
using it.
Q When you say instrumental in helping her get that
model, what did you have to do to get it?
A Initially we suggested that she call Dr. Richardson
and see if he wanted to be involved. He said he was too busy
at the time to be directly involved, but that we had the
model there at Florida, we being Dr. Holt, who worked with
Dr. Richardson and myself.
Q Identify for me Dr. Richardson.
A James Richardson, Texas A&M University.
Q Okay. You say it had been used in the Okeechobee
work.
Did you use it in conjunction with your work?
A Yes, I did.
Q And you discussed the pluses and minuses of using
it for Dr. Johns' work.
Can you tell me what the pluses and minuses of
using that model are?
A The biggest minus is that it's not directly
designed to do what she needed to have done and it's a fairly
data-intensive and somewhat awkward model to use. It uses
the old Fortran punch card style of data entry. You don't
actually use punch cards anymore, but the input form that you
create is eighty characters long, like the punch cards were,
and different columns have ones and zeros and stuff in them,
and so it's 컴 I told her that it takes a lot of effort to,
you know, to run that model and I wasn't sure that it was
worthwhile, given what they were wanting to do with it. So
that was the biggest minus.
Q Okay.
A She was lucky, she has Chris Meline, who's a crack
computer programmer, so they felt that they could handle that
part of it.
Q Okay.
A The plus side, and I think one of the reasons she
considered it, was that she didn't have to worry about
writing her own spreadsheet or other computer package to do
what she wanted done and then worry about all the
verification and checking that needs to be done anytime you
create your own analytical package.
Q Okay.
A So that was the nature of the discussions.
Q You say one of the biggest minuses was that it was
not directly designed to do what she wanted to do.
What was it designed to do, as compared to what she
wanted it to do?
A Flipsim is designed to simulate a specific farm,
where you have data about that farm's specific financial
situation; its enterprises, the actual acreage of each of
those enterprises; particular financial situation of the
farms, as far as in terms of debt, insurance rate, specific
tax information relative to type of business entity, whether
it's private, sole proprietorship or corporation, or whatever
it is.
So it's designed to simulate an individual farm
with specified characteristics.
Q Okay. Are you saying that because she was doing an
area-wide assessment that it didn't really fit?
MR. SAXE: I'm going to renew my standing
objection and standing instruction, with the
understanding that the witness is only instructed
not to answer with respect to facts, grounds and
opinions developed in the context of the expert
non-testifying consultancy, and is otherwise not
instructed not to answer.
MS. STINSON: Okay. It's my understanding
that this is some involvement he had prior to being
involved in the litigation.
MR. SAXE: I think your initial question
certainly did qualify itself so that it was limited
to his work outside the context of the consultancy,
but we're now verging into opinions and views
concerning Flipsim, et cetera, and there may be
some fine line drawing there concerning material
that predates Dr. Boggess' retention on this case
and work done since he was retained.
MS. STINSON: Okay. Let me clarify then.
BY MS. STINSON:
Q Dr. Boggess, when were you retained by Justice to
be involved in this litigation?
A I don't know the exact date, but it was late
August.
MS. STINSON: If you could answer that.
MR. SAXE: I won't testify for the witness
and. . .
MS. STINSON: Sure, but if you can help me
out. Was it late August, do you know?
MR. SAXE: I really am not in a position to
say.
BY MS. STINSON:
Q Okay.
A I don't know the exact date, but late August.
Q Late August?
A Or early September, somewhere in there.
Q And when did you meet with Dr. Johns?
A Again, I'm not sure, but it was probably in March.
Q Okay. Prior to the time you were retained?
A Right, correct.
Q And at that time, when you talked to Dr. Johns, you
talked about the pluses and minuses of the Flipsim model.
A Yes.
Q So at that time you knew what it was designed to
do, because you had used it before.
A Right.
Q And you knew what she intended to do.
A Right.
Q Okay. Back to my question.
You indicated that it was designed to be used on a
farm-specific basis. My question was, you're saying then
that it wasn't designed to do what she wanted it to do,
because she was doing an area-wide analysis; is that correct?
A That's correct.
Q Now, when you used it on your Okeechobee work, were
you doing a farm-specific analysis?
A That's correct.
Q Okay. Did you have discussions 컴 I presume you
did, with Dr. Johns, between the time of your meeting in
March and the time the report was prepared?
I don't know when it was, it's in here somewhere.
MR. SAXE: Are you asking about conversations
with Dr. Johns after Dr. Boggess was retained as an
expert consultant?
MS. STINSON: No.
BY MS. STINSON:
Q Prior to the time you were retained and in
conjunction with your work at the University in providing
information to Dr. Johns, did you have discussions with her
after March?
A We had, I don't know how many, but a few phone
conversations. We didn't meet in person. . .
Q Okay.
A . . .after that time.
She would occasionally call up and ask some
question, you know, of one sort or another and ask if I knew
the answer or who might have some information or how she
might proceed.
Q Okay. Did she provide to you any preliminary
drafts of her report for you to review?
A Yes, she did.
Q Did you review and comment on those drafts?
A I did a real quick review.
I set up a seminar for her to come up and present
it to the faculty.
Q When was that, do you recall?
A That would have been in middle to late July, I
believe.
Q Okay.
A And she came and presented it to some of the
faculty and graduate students in the department, but I was on
vacation so I was unable to attend that, nor was I able to
give her informal feedback on the report, because I left
about the time she was getting to that point.
Q Okay. Did you provide to her before then any
comments or suggestions on a draft, preliminary draft?
A No, I did not.
Q Do you have a preliminary draft that she provided
to you with comments that she may have made?
A No, I don't.
Q You say you did that, but. . .
A I did, I had a preliminary draft, but I don't have
it anymore. I got tired of carrying them all around.
Q Okay.
A So when I got the final I decided to get rid of the
original.
Q Did you send to her your comments at any time?
A No.
Q Did anyone, to your knowledge, at the University
send her comments on. . .
A I think the extent of the feedback, and I'm just
surmising now, but as I understand it, she came up and gave a
seminar and there was oral feedback at the seminar,
discussion about it; but, to my knowledge, there was no
written feedback, but she may have received something from
someone who was there, but. . .
Q Okay. Can you tell me, from the University, who
was at that meeting?
A No.
Q Was there any record of that meeting?
A I think Dr. Lynne was instrumental in actually
making the final arrangement, because they had reschedule it
after I left and, to my knowledge, he was the one who handled
that.
Q Okay.
A Dr. Johns would obviously know as well who she
talked about it with after I left.
Q Okay. Prior to your retention by the Justice
Department, did you form any opinions with regard to the
methodology you used or the findings in the Hezen and Sawyer
report?
A No, I did not.
Q Okay. When you met with her in March you say you
talked about key people, data sources and references.
Now, do you recall if there were people you
suggested she talk to?
A Yes. I can't remember everybody, but I remember 컴
and she already had most of the people on the list. I
suggested Dr. Alvarez, who is sort of our sugar expert in
Belle Glade.
Q Okay.
A I suggested that she talk to Dr. Mulkey and
Clouser, since they had done earlier work on the economic
impact with the sugar industry.
Q Okay.
A I referred her to Dr. Bottcher and Izuno, because I
knew they had been doing some work on BMPs.
Q Okay. Anyone else you recall?
A Not that I recall.
Q Okay. What about data sources?
A Again, we talked about the cost of production
survey work that USDA does. We also 컴 I mentioned in the
context Dr. Alvarez, the work he does on the sugar production
costs.
I also suggested that she talk to Dr. Taylor.
Q Who is he?
A He's also in the department and he sort of
coordinates the survey on cost returns on vegetables in
various regions over the state and he has a series of
publications on vegetable costs and production.
Q Okay.
A So I referred to those documents and to him, to
talk about how they're collected.
Q How about references, any other references?
A No. The references would be to publications that I
just talked about.
Q Okay. Other than in your capacity as an expert
retained by the Justice Department, have you done any work or
do you have any opinions on the economic impact or effect of
the Everglades' Restoration Project?
A No, I haven't.
Q Okay.
MS. STINSON: Mr. Saxe, you told me you will
object to even an answer or will not allow him to
answer a question even if he has formed such
opinions in his capacity; is that your position?
MR. SAXE: I'm not sure that's what I said.
I said, if I recall, in the context in which
it arose, I said I would object to questions
concerning whether he has formed opinions in his
capacity as a non-testifying expert consultant.
MS. STINSON: Well, will you allow him to 컴
I'll try it, I mean, this is beating around the
bush.
BY MS. STINSON:
Q Have you, in your capacity as an expert retained by
the Justice Department, formed any opinions with respect to
the Hezen and Sawyer report?
MR. SAXE: I'm going to object and instruct
the witness not to answer the question.
MS. STINSON: That's what I thought you told
me.
Okay. For the record, let me certify the
question.
BY MS. STINSON:
Q Additionally, let me ask this follow-up question.
Tell me what opinions you have with respect to the
Hezen and Sawyer report.
MR. SAXE: Objection, beyond the scope of
discovery to the extent that it inquires into Dr.
Boggess' work as a non-testifying expert consultant
for the United States. Dr. Boggess has been listed
by the United States for protective purposes only,
in the event that the hearing officer determines
that economic impacts are relevant in this
proceedings. Absent a ruling to the contrary, the
United States' position is that there are no
economic impact issues in this proceeding. So at
this juncture the United States neither expects nor
intends to present Dr. Boggess' testimony or
opinions concerning the matters regarding which he
has been retained as a non-testifying expert
consultant.
The witness is instructed to answer only to
the extent that he can do so outside the context of
his work as a non-testifying expert consultant,
based on either his work before he was retained,
work independent of his consultancy, or any
information that might be provided to him today in
the form of a hypothetical.
Please include that in the marked portion.
MS. STINSON: Are you instructing him not to
answer?
MR. SAXE: I. . .
MS. STINSON: I don't know if that was part of
that speech or not.
MR. SAXE: That was my instruction.
MS. STINSON: Okay.
BY MS. STINSON:
Q Dr. Boggess, have you. . .
MS. STINSON: Let's go off the record.
(Thereupon, a discussion was had off record;
whereupon, the following proceedings were held:)
BY MS. STINSON:
Q Dr. Boggess, have you, in your capacity as an
expert in this litigation, determined the extent of any
economic impacts of the Everglades' Restoration Program?
MR. SAXE: Same objection, same instruction.
BY MS. STINSON:
Q Have you, in that same capacity, reviewed or
analyzed the methodology, assumptions, determinations and
conclusions of the South Florida Water Management District or
its designate concerning such impact?
MR. SAXE: Same objection, same instruction.
BY MS. STINSON:
Q Dr. Boggess, in any capacity, other than as an
expert retained by the Justice Department, have you
determined the extent of any economic impacts of the
Everglades' Restoration Program or made any assessments of
the methodology, assumptions, determinations and conclusions
of the South Florida Water Management District on that issue?
A The only opinion that I would have on that would be
in the initial discussions that I had with Grace. We had
sort of a general agreement over the basic methodology that
she proposed at that time.
Q Okay.
A So part of those discussions, but since then, no.
(Thereupon, a short recess was had; whereupon, the
following proceedings were held:)
MS. STINSON: Before we get back in the
questioning, I forgot to say something at the
beginning and I would like to put it on the record.
Rick Burgess had planned to be here, his
flight was cancelled, due to weather conditions
throughout the state and there was no reasonable 컴
even the Orlando airport was closed he says.
He will be sending out a letter, but he wanted
me to put that on the record, that he didn't mind
it going forward, but conceivably he could have to
renotice at some point.
MR. SAXE: Did he have a flight last night or
this morning?
MS. STINSON: This morning, which is why we
set it at eleven, to accommodate for that. He
tried to get a later flight, but the Orlando
airport was closed.
MR. SAXE: There's always a weather risk when
you leave the flight until the morning of the
deposition.
BY MS. STINSON:
Q Dr. Boggess, let me ask you some more questions
about your pre-retention involvement in the Hezen and Sawyer
report.
You indicated that you were instrumental in getting
the Flipsim model for Dr. Johns.
Were you or the university compensated for giving
her that program?
A Yes.
Q Was it you or the university?
A The university was compensated.
Q How much?
A I think it was either twenty-five hundred or three
thousand dollars. There was an agreement there.
Q An agreement between the university and Hezen and
Sawyer?
A That's correct.
Q I would like to get a copy of that as well.
A Okay.
MR. SAXE: Why don't you make a note on that
list?
BY MS. STINSON:
Q Do you know what version of Flipsim she obtained?
A No.
Q Are there a number of versions?
A Not that I know of.
She has the version that we received from Dr.
Richardson.
Q Do you know when you received it from Dr.
Richardson?
A There's a date on this one publication that will
tell me.
Q Okay.
A It would have been, I believe, sometime in the
spring of '91.
Q All right. And you obtained that in connection
with your Okeechobee work, your dairy work?
A Yeah, it was obtained as part of the Okeechobee
work, but also there was a visiting professor from Texas A&M,
who worked with Dr. Richardson, who was here doing some
sabbatical work and he was using Flipsim at the same time.
Q Who was that?
A Dr. Bud Swart.
Q Okay. Prior to transferring Flipsim to Hezen and
Sawyer, did you obtain a release from Dr. Richardson or Texas
A&M, or anyone there?
A Dr. Holt, who is a colleague of mine, who spent a
year working with Dr. Richardson and working with Dr. Swart
when he was here.
Q Okay.
A Handled the negotiations with Dr. Richardson.
Q Specifically before transferring it to Hezen and
Sawyer?
A That's my understanding.
Q Okay. Was it you who suggested the use of Flipsim
to Dr. Johns?
A I don't remember exactly. I believe she inquired
about it in the context of how we used it in the Okeechobee
study.
Q How would she have known that, do you know?
A I don't know. She might have had copies of the
publications on the Okeechobee work.
Q Do those publications refer to Flipsim?
A Yes.
Q Okay. Did you know Grace Johns prior to
involvement with her in the Hezen and Sawyer report?
A Yes, I did.
Q How was that?
A She was a student in the department.
Q When was that?
A It would have been in the early or mid-'80s.
She got a Bachelor's and a Master's degree.
Q Were you her advisor on any committees that
reviewed her work?
A No, I was not.
Q Had she been a student of yours?
A Again, I would have to look to be sure. She might
have taken my undergraduate class. I believe she took it.
Q But you didn't know her?
A I knew her, yes.
Q Had you maintained contact with her over the years
after she left the university?
A Not really.
Q Okay. You indicated that from March until the time
you were retained by Justice that you had a few discussions
with her about the report. You said she called with some
questions. Do you remember what questions?
A The nature of the questions were more on the lines
of specific ways of running Flipsim, not with respect to the
analysis or the reports.
So the agreement was that we would provide the
model and sort of troubleshooting.
Q Is that written in the agreement between UF and
Hezen and Sawyer?
A Yes.
Q Was that compensation then to cover some time in
consulting on the use of the Flipsim model?
A Essentially, yes.
Q Did you speak with anyone at Hezen and Sawyer,
beside Grace Johns?
A Chris Meline.
Q How often did you speak with him?
A Once or twice a month, something like that, maybe.
Q What was the nature of those discussions?
A Again, they were specific with respect to the
operation of Flipsim.
Q All right. Do you know whether there is any
written agreement between the University of Florida and Texas
A&M regarding Flipsim?
A Not to my knowledge.
Q Was any of the compensation received by UF then
sent on to Texas A&M?
A No. To my knowledge, no.
Q Approximately how much time did you spend between
March. . .
Well, approximately how much time did you spend
consulting with Hezen and Sawyer, in the use of Flipsim, for
the report they did?
MR. SAXE: For clarification.
Before retention?
MS. STINSON: Well, whether before or after,
but in conjunction with his work at the University
of Florida, in consulting with Hezen and Sawyer.
MR. SAXE: Thank you.
BY MS. STINSON:
Q Okay.
A I'll try to add it up.
It was probably a total of two or three working
days, total.
Q And do you know how much time other members of your
department or graduate students spent consulting with Hezen
and Sawyer?
A No.
Q Did other people. . .
A Other people did.
Q All right. Specifically how many, do you know?
A Dr. Holt spent some time meeting with them and also
handled some of the phone questions.
Q Okay.
A And Rom Alderman, who was our systems programmer at
the time, also spent some time specifically on issues,
answering. . .
Q Would there be any records, which would indicate
the amount of time spent by members of the university in
consulting on that report?
A The only record that I know of would be a phone log
that would indicate 컴 I have to keep a phone log of whoever
I call, so it would be. . .
Q It would not indicate if she called you or. . .
A No, and no indication of how long. So it would be
hard to say whether it was with respect to Flipsim or some
other issue.
That's the only paper trail that I know of.
Q Do you know if there's any correspondence or any
other documentation between the members of the university,
Rom Alderman or Dr. Holt, or anyone else, on Hezen and
Sawyer, with respect to the report?
A Not to my knowledge.
Q Okay. If those people had correspondence with
Hezen and Sawyer, would you likely know, would you have been
copied or. . .
A I would expect I would have known.
Q Okay. And you don't know of any.
A I don't know of any.
Q Did you have discussions with third parties, that
is, not university, not Hezen and Sawyer people, about the
Hezen and Sawyer work or the Flipsim model, apart from
Justice's counsel?
A Would you repeat the question?
Q Maybe I can make it more clear.
You indicated that you had talked to the people at
Hezen and Sawyer and I presume you also talked with Dr. Holt
and Rom Alderman about the work being done, correct?
A Correct.
Q Did you talk to anyone else about the work being
done by Hezen and Sawyer?
A I guess the only other conversations would have
been in setting up with Dr. Lynne to have the seminar.
Q Okay.
A There I indicated to him that they had been doing
this work.
Q Dr. Lynne is with the university, correct?
A Yes.
Q Okay. Did you do any work in tracking down data
sources or further information to provide to Grace Johns or
anyone at Hezen and Sawyer?
A No, I did not.
Q Other than the compensation for the use of Flipsim,
was the university or were any individuals at the university
compensated in any way for the work done, with respect to the
Hezen and Sawyer report?
A No, not to my knowledge.
Q You said you understood that Dr. Holt handled the
negotiations with Dr. Richardson on Flipsim; is that correct?
A That's correct.
Q How did you come to have that understanding?
A When we 컴 Dr. Holt met with Dr. Johns, Chris and I
were there the first days she came up and he was in that part
of the meeting and the issue of Flipsim came up at that
meeting and at that time we suggested that she contact Dr.
Richardson directly about Flipsim, but he indicated that he
wouldn't have time and suggested that she work through us,
and at that time I talked to Dr. Holt and he and I discussed
it, since he worked with Dr. Richardson on sabbatical and
knew him well, so he said: "I'll call Jim and talk to him
about it."
(Thereupon, a short recess was had; whereupon, the
following proceedings were held:)
MS. STINSON: Where was I?
MR. SAXE: Would you read the question and the
answer, please?
(Thereupon, last question and answer so read by
reporter.)
BY MS. STINSON:
Q Okay.
A I guess when I was hearing it, Doctor 컴 we had a
meeting between Dr. Holt, Dr. Johns, Chris Meline and I, at
least were all at that meeting, when the first issue of
Flipsim came up.
Q Okay.
A We suggested, Dr. Holt and I suggested, to Dr.
Johns, that she contact Dr. Richardson directly.
Some time after that she indicated that Dr.
Richardson had indicated his schedule was too busy to work
directly with her and that she work back through the
university, because we had a copy of the Flipsim model.
At that time Dr. Holt and I discussed it and he was
going to call Dr. Richardson and talk to him about our use of
Flipsim in this particular situation.
That's the extent of my understanding of that
negotiation.
Q Okay. At some point then I presume Dr. Holt came
to you and said: I've talked to him and everything is okay.
A Well. . .
Q Who actually executed the agreement between Hezen
and Sawyer and the university on Flipsim?
A I guess 컴 my signature is on that, so technically
it was between me and the department chairman. I can't
remember exactly what else may be on there.
Q Okay.
A I did most of the negotiations with Dr. Johns.
Q Okay. But at some point Dr. Holt came to you and
said: I've talked to Jim Richardson and everything is fine.
Or was there any correspondence on that? I mean. . .
A I don't know of any correspondence. I think 컴 I'm
trying to remember exactly 컴 to the best of my recollection,
it would have been, since our offices are next door, we just
had some discussions about it. I told him what they wanted
to do and he indicated that that would be fine.
Q Okay. Subsequent to your retention as an expert by
the United States, but apart from that relationship, have you
had any involvement with Hezen and Sawyer regarding the
economic impact of the SWIM Plan or any involvement generally
regarding the economic impact of the Everglades' Restoration
Project?
A No.
Q Now, you indicated to me and provided to me
documents regarding a meeting in September of '92, regarding
a Dr. Hahn's proposal.
A Yes.
Q Can you explain to me that proposal?
A Clarification of the content of the proposal?
Q Yes.
A The subject matter?
Q Both. I mean 컴 yes. I don't know what it is, you
tell me what it is.
A Dr. Hahn had written a small 컴 a short paper that
basically outlined how the concept of marketable permits or
marketable emission credits could be used as a policy means
of implementing the settlement agreement as an alternative to
the way the settlement agreement was actually written, and he
laid out this alternative approach in that proposal.
Q Let me interrupt, make sure the record is clear.
When you say settlement agreement, you mean the
agreement between the United States Government and the State
of Florida regarding the Everglades' Restoration Project and
the federal lawsuit.
A That's correct.
Q Okay.
A I'm not exactly clear on what is in the SWIM Plan
and what's in the settlement agreement.
Q Okay.
A So I wouldn't want to argue about whether it was in
one or the other, but basically it was a way of implementing
that, he had an alternative approach that he proposed.
Q Okay. And you got a copy of this proposal and
because of your own interest and the work that you do at the
university, you reviewed that and analyzed that, correct?
A That's correct.
Q Okay. And then in September there was a meeting
with the water management district?
A That's correct.
Q Okay.
A The water management district sponsored that
meeting.
Q Okay. I believe you indicated to me that you were
not compensated by anyone in any way, other than your regular
compensation through the university for the work that you did
in reviewing that report; is that correct?
A That's correct.
Q And, for example, when you traveled to West Palm
for the meeting, who paid those expenses?
A It came out of one of my accounts.
Q At the university?
A At the university.
Q You have different accounts?
A Yes, from various 컴 if you have a contract you
have an account for that.
I get overhead money that is left over and I can
use that to travel and things like that.
Q Was this through any contract budget or. . .
A I think this one was actually paid for out of the
existing contract that I had with the water management
district, because I met with the contracting agent while I
was down there.
Q All right.
A In West Palm, anyway, so. . .
I'm not sure on that. It may just have come out of
my state allocation. I would have to go look and see.
Q Okay. Do you know whether there are any minutes or
any recording of that meeting?
A There was no videotaping of the meeting. There was
some. . .
Q Was there audiotaping or. .
A No, I don't believe there was any taping at all.
Pete Rhodes supervised the meeting and he would
have any records.
The only record I know of is the copy of my
overhead and Dr. Hahn's overhead and then I believe there's a
summary of the public comment questioning round. I think
someone took some notes on that.
Q Okay. And though I have seen, obviously I have not
had time to review, your analysis of Dr. Hahn's proposal, can
you tell me generally what your analysis was, what your
opinions are on that proposal?
A My general opinion was that the concept is a useful
concept that we have been promoting, concept of using market
mechanisms for environmental pollution situations and we have
been trying to get DER and the water management district to
consider those.
Q "We" being?
A The University of Florida and my colleagues there
in the economics department.
So that spawned by interest when I saw this
proposal, my decision to write on it.
My initial reaction to Dr. Hahn's proposal was that
it was not complete enough to really lay out all the pros and
cons or advantages and disadvantages, and I wrote that sort
of to add some additional issues that might need to be
considered to debate on the concept, and then also came up
with some suggestions based on my knowledge of the EAA about
how I thought this particular proposal might be approved and
might be implemented in that specific concept.
Those were the major thrusts of that.
Q And those suggestions and recommendations are
somewhere in this documentation that you have given me today?
A The one staff paper that you have, I think it's
dated April of '92, the one on marketable permits, lays out
my reaction, the pros and cons, and also lays out the
outlines of my suggestions on how it might be implemented
within the EAA.
Q Okay. Have you reviewed the economic impact or
effects of some kind of marketable emissions credits type
system, as compared to what is currently in the SWIM Plan or
settlement agreement?
MR. SAXE: Clarification?
BY MS. STINSON:
Q As part of your work at the university, apart from
being an expert. . .
A No, I haven't.
Q Did you, in reviewing Dr. Hahn's proposal, did you
look at the economic effects of that proposal?
A I looked at the 컴 he had some tables in there, and
I'm trying to remember what is in there, that had some
economic dimensions to it. You know, I looked at what he had
in his report, but did no other calculations on my own.
Q Okay. Did your analysis in that work include any
comparison of either the costs or any economic effects of Dr.
Hahn's proposal, as compared to the costs or economic effects
of the SWIM Plan?
A No.
Q Dr. Boggess, what have you been retained by Justice
to do?
A I have been retained to provide peer review and
expert consulting on the economic impact study done by Hezen
and Sawyer.
Q What do you mean by peer review in this instance?
A As a professional economist, basically reviewing it
from a peer review standard, whether or not accepted
theoretical constructs and appropriate methodologies.
MR. SAXE: Would you mark this section,
please, of the transcript.
(Thereupon, a short recess was had; whereupon, the
following proceedings were held:)
BY MS. STINSON:
Q All right.
A Can I expand on that?
Q Sure.
A In the current scope of work that I have been
retained under, I have been asked to provide consulting on
any economic dimension of the settlement agreement or the
SWIM Plan, which I have professional expertise, and that
includes possible testimony.
Q Have you been asked to do an independent analysis
of the economic effect of the SWIM Plan?
MR. SAXE: Objection 컴 same objection and
same instruction.
I think, counsel, you can ask about the
general contours of the scope of his retention, but
when you get into specific tasks I think you're in
work product territory and attorney/client
territory and I'm going to have to instruct the
witness that until he is a testifying expert on
those matters there's a scope of discovery problem
with him being questioned on what he's doing in his
capacity as a non-testifying expert consultant.
MS. STINSON: Even with respect to the scope
of his work?
MR. SAXE: Like I said, the general contours
of the scope of his work, the subject matter,
that's one thing. But specific tasks I'm going to
lodge that objection to, with respect to questions
on specific tasks.
MS. STINSON: And when I ask him if he's been
asked to do an independent analysis of the economic
effects of the SWIM Plan, you say that's a specific
task?
MR. SAXE: Yes.
MS. STINSON: You're instructing him not to
answer?
MR. SAXE: Yes.
MS. STINSON: Certify that question.
BY MS. STINSON:
Q Dr. Boggess, have you been provided with
documentation or information with respect to your work as an
expert, retained by the Justice Department, that you have not
provided me today?
MR. SAXE: Let me interject.
Privileged work product, or otherwise
protected material, has been pulled from this,
pursuant to the discovery order in the case and the
standing practice in the case, and you will be
provided a privileged list of those documents, as
provided by the discovery order and mutual
agreement of all parties.
I just wanted to clarify that. I'm sorry.
Go ahead and you can answer that question.
Would you repeat the question?
Off the record.
(Thereupon, a discussion was had off record;
whereupon, the followin
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