1

1 STATE OF FLORIDA

2 DIVISION OF ADMINISTRATIVE HEARINGS

4 Case Nos. 92-3038, 92-3039, 92-3040

6 SUGAR CANE GROWERS COOPERATIVE )

OF FLORIDA, a Florida Agricultural )

7 Cooperative Marketing Association, )

ROTH FARMS, INC., AND )

8 WEDGWORTGH FARMS, INC., )

)

9 and )

)

10 FLORIDA SUGAR CANE LEAGUE, INC., )

UNITED STATES SUGAR CORPORATION; )

11 and NEW HOPE SOUTH, INC., )

)

12 and )

)

13 FLORIDA FRUIT AND VEGETABLE )

ASSOCIATION, LEWIS POPE FARMS, )

14 W.E. SCHLECHTER & SONS, INC., and )

HUNDLEY FARMS, INC., )

15 )

Petitioners, )

16 vs. )

)

17 SOUTH FLOORIDA WATER MANAGEMENT )

DISTRICT, an Agency of the State )

18 of Florida. )

Respondent, )

19 and )

)

20 MICCOSUKEE TRIBE OF INDIANS OF )

FLORIDA, the UNITED STATES OF )

21 AMERICA, and FLORIDA DEPARTMENT OF )

ENVIRONMENTAL REGULATION, and the )

22 FLORIDA WILDLIFE FEDERATION, and )

the FLORIDA AUDUBON SOCIETY, and )

23 SIERRA CLUB, )

Intervenors. )

JACK BESONER AND ASSOCIATES

4 A P P E A R A N C E S

THOMAS WATTS-FITZGERALD,

6 Assistant U.S. Attorney

155 S. Miami Avenue, 6th Floor

7 Miami, Florida 33130

KENNETH F. HOFFMAN, Esquire

9 Oertel, Hoffman, Fernandez & Cole, P.A.

2700 Blair Stone Road

10 Tallahassee, Florida 32301

RICHARD. RUSSELL, Equire

12 Peeples, Earl & Blank, P.A.

One Biscayne Tower, Suite 3636

13 Two South Biscayne Boulevard

Miami, Florida 33131

16 DEPOSITION OF DANIEL A. BOTTS, taken on

behalf of the Intervenors, on the 11th day of

17 December, 1992, pursuant to the Federal Rules

of Civil Procedure, in the offices of the the

18 U.S. Attorney, 155 S. Miami Avenue, 6th Floor,

Miami, Florida, 33130, before me, Phil

19 Berglan, a Shorthand Reporter and Notary

Public in and for the State of Florida.

JACK BESONER AND ASSOCIATES

1 DANIEL A. BOTTS,

2 a witness being produced, sworn and examined

3 on behalf of the Intervenors does hereby

4 deposeth and saith as follows:

5 DIRECT EXAMINATION

6 BY MR. WATTS-FITZGERALD:

7 Q. Good morning, Mr. Botts. I am

8 Assistant United States Attorney Tom

9 Fitzgerald. Have you ever been deposed

10 before, sir?

11 A. Yes, sir.

12 Q. In connection with what cases?

13 A. I was in a pepper damage lawsuit

14 from a herbicide drift incident.

15 Q. Any other instances?

16 A. No, sir.

17 Q. You will probably remember from

18 that, then, if at any time during the

19 deposition I ask a question you don't

20 understand, which seems to happen to me more

21 than everybody else put together, just tell me

22 and I will try and rephrase it.

23 Or if you don't understand what it

24 is I am trying to ask, just let me know and I

25 will see if I can put it in better form or

JACK BESONER AND ASSOCIATES

1 better English.

2 If at any time during the deposition

3 you want to take a break and get a drink of

4 water or a cup of coffee or something, just

5 let me know and we can accomodate your

6 schedule there.

7 Showing you what is marked as

8 Exhibit 1, Notice of Deposition Duces Tecum,

9 have you seen that notice before?

10 A. Yes.

11 Q. Prior to today?

12 A. Yes.

13 Q. Did you have a chance to review,

14 with Counsel, the enclosed portions

15 delineating what documents you should produce

16 in connection with the deposition?

17 A. Yes.

18 Q. Where do you live, Mr. Botts?

19 A. Orlando, Florida.

20 Q. How long have you been a resident in

21 that area?

22 A. Since 1985.

23 Q. Can you give me your educational

24 background starting with high school.

25 A. I attended public schools in Troy,

JACK BESONER AND ASSOCIATES

1 Alabama, graduated from Charles Henderson High

2 School in 1969, attended Auburn University,

3 received a BS in biological sciences from

4 Auburn in 1973, and a Master of Science in

5 Biology in 1978, from Auburn.

6 Q. Between your Bachelor's Degree in

7 1973, and returning to school for your

8 Master's, what did you do?

9 A. I worked for my father, who is a

10 civil engineer and land surveyor in Troy for a

11 year and a half and then returned to graduate

12 school.

13 Q. After completing graduate school in

14 1978, what was your first employment?

15 A. I moved to Clewiston, Florida, and

16 taught school at Belle Glade Day School for

17 one year.

18 Q. What subjects did you teach?

19 A. Seventh grade life science and 10th

20 grade biology.

21 Q. After a year in that position, what

22 job did you take?

23 A. I went to work for South Bay Growers

24 as their assistant technical director and

25 became technical director there in 1981, and

JACK BESONER AND ASSOCIATES

1 left the employ of South Bay Growers in 1985,

2 to take the current position that I now have.

3 Q. Was your departure from South Bay

4 Growers amicable?

5 A. Yes.

6 Q. South Bay Growers is a member of the

7 Florida Fruits and Vegetable Association?

8 A. Yes.

9 Q. At the time you were first employed

10 by South Bay, or throughout your time there,

11 who owned South Bay?

12 A. When I went to work there it was

13 owned by Billy Rogers and Mutt Thomas. It was

14 sold to U.S. Sugar Corporation -- I am not

15 sure of the specific date -- I think it was

16 November of either 1980 or 1981.

17 Q. So from approximately 1981 through

18 1985, you were indirectly employed by U.S.

19 Sugar through South Bay?

20 A. Right.

21 Q. And what was the business of South

22 Bay Growers?

23 A. Vegetable production.

24 Q. Did they do primarily farming or was

25 their work processing?

JACK BESONER AND ASSOCIATES

1 A. At the time I was employed there it

2 was mostly agricultural production of several

3 different commodities, and they also served as

4 a handler for other growers and sales agent

5 for other growers.

6 Q. How large an operation was it at the

7 time that you left?

8 A. It was not a lot different than it

9 is now, as far as the actual operational

10 parameters of what they were growing, and it

11 was -- absolute numbers I can't give you off

12 the top of my head as far as acreage or people

13 hired or that kind of information.

14 Q. Where is the acreage located that

15 was being farmed by South Bay at the time?

16 A. At the time I left -- it's hard --

17 they were -- they had a lettuce operation

18 south of South Bay.

19 They had a lettuce operation in the

20 northeast section of the EAA. They had a

21 lettuce operation on the western boundary of

22 Palm Beach County adjacent to Hendry County.

23 They had a celery operation that was

24 essentially south of the city of South Bay.

25 Q. Was that land held directly by South

JACK BESONER AND ASSOCIATES

1 Bay Growers?

2 A. No.

3 MR. HOFFMAN: I will interpose an

4 objection. There is no predicate that the

5 witness knows the legal -- I think it calls

6 for a legal conclusion, actually, and I will

7 object to you asking him to give a legal

8 conclusion and no predicate that he was

9 involved.

10 His job did not sound like it was

11 involved with a land ownership type of

12 question, so I will object for that reason.

13 Q. (BY MR. WATTS-FITZGERALD) You can

14 answer the question if you know. If I ask a

15 question and you don't know the answer, that

16 is a perfectly acceptable answer -- well, it

17 may not be perfectly acceptable, but it's a

18 good answer.

19 Do you know if they owned the land

20 when they were conducting operations on it?

21 A. I am not sure what arrangements were

22 done.

23 Q. Do you know if that land was

24 exclusively devoted to the lettuce and celery

25 operations you were describing or was it also

JACK BESONER AND ASSOCIATES

1 used for other crops?

2 A. A portion of it was used for other

3 crops. There was sweet corn grown in rotation

4 by other growers on the property.

5 Q. Did they grow sugar cane in rotation

6 on any of that land?

7 A. When I was there most of the land

8 that was in vegetable production was rotated

9 from sugar cane to vegetable production, and

10 it was my experience while we were there, we

11 did not rotate directly, in the same season,

12 vegetables or sugar cane because of the

13 longevity of the sugar cane crop.

14 Q. Did South Bay Growers, during the

15 period of time you were with them, handle

16 sugar cane at all?

17 A. When I was first employed there,

18 because of the ownership, each of the

19 individual owners had sugar cane acreage and

20 at that time they did, and I am not absolutely

21 positive how the holdings of South Bay were

22 put into the U.S. Sugar operation at the time

23 the sale took place.

24 Q. What was the precise nature of your

25 duties as assistant technical director when

JACK BESONER AND ASSOCIATES

1 you first went to South Bay?

2 A. Crop production related research,

3 compliance with various environmental

4 regulations, specifically pertaining to

5 pesticides.

6 I was in charge of their soils lab,

7 made the fertilizer recommendations based on

8 information provided from consultants.

9 Q. How did your duties change when you

10 took over as technical director?

11 A. Not a lot. It was just moving up --

12 the person who had the job prior to me had a

13 health problem and he essentially retired and

14 became a consultant and it was just a

15 progression. The office handled the same sort

16 of duties.

17 Q. Who was that?

18 A. Doctor Tom Carpenter.

19 Q. In developing your recommendations

20 for application of fertilizers or pesticides

21 or any of the technical recommendations you

22 made to South Bay Growers, did you utilize

23 outside consultants?

24 A. The primary consultant utilized was

25 Doctor Howard Burdine (phonetic) who had

JACK BESONER AND ASSOCIATES

1 retired from the IFAS Extension Research

2 Center in Belle Glade.

3 Q. Did your operation at South Bay use

4 IFAS directly for any purposes?

5 A. No moreso than any other farm in

6 operation. It was an advice and counsel type

7 situation.

8 Q. Did, at that time, South Bay Growers

9 conduct soil testing to determine what

10 fertilizers it would apply?

11 A. Yes.

12 Q. Did you do that in your own lab?

13 A. Yes.

14 Q. Did you use any outside lab or did

15 you employ any outside labs to conduct any of

16 those tests for you?

17 A. No.

18 Q. After you left South Bay Growers in

19 1985, what was your position with the Florida

20 Fruit and Vegetable Association?

21 A. Florida Fruit and Vegetable

22 Association created the division I headed up

23 in 1985, which is to deal with environmental

24 pest management and related issues.

25 A lot of the things that I was doing

JACK BESONER AND ASSOCIATES

1 at South Bay translated to this job with

2 Florida Fruit and Vegetable Association as far

3 as pesticide-related work and labeling efforts

4 for pesticides, representations of the

5 vegetable industry's positions on various

6 issues of an environmental nature.

7 Q. The directory for 1991/1992 that you

8 provided me of the Florida Fruit and Vegetable

9 Association lists you as a secretary/treasurer

10 on the board of directors of a subsidiary

11 called, "Third Party Registrations,

12 Incorporated"?

13 A. Yes.

14 Q. What is that?

15 A. It's a nonprofit subsidiary which

16 was set up to register pesticides in the State

17 of Florida on behalf of the growers who are

18 members of the association that would not be

19 registered because of either toxicity or other

20 like concerns by the primary registrant.

21 Q. So the expense of securing, what

22 they call in business, a label would be taken

23 on by third-party registrations?

24 A. Well, to give you a complete answer

25 that I don't have to back up and walk you

JACK BESONER AND ASSOCIATES

1 through some things that are going to get

2 technical and complex, but if you have the

3 time, I have got the time.

4 Q. I have the time.

5 A. One of the major impediments to

6 obtaining pesticide registration for

7 expensive, high value, labor intensive crops

8 that are grown on small acreages, one of the

9 main deterrents is the potential liability

10 associated for the chemical company who

11 registers that product on that crop.

12 All of the commodities that we grow

13 in Florida are minor crops in the eyes of the

14 registrants and various places. One of the

15 major things that has been thrown up to us as

16 being a problem for a chemical company to

17 pursue a registration is that liability.

18 Several of the larger registrants in

19 the country approached the industry to develop

20 a mechanism whereby the growers who wanted to

21 use the product could provide an

22 indemnification to the chemical company for

23 that specific liability, crop damage,

24 phytotoxicity, nonperformance, liability.

25 We took about two and a half years

JACK BESONER AND ASSOCIATES

1 of researching the various legal aspects of

2 how to set the process up, put it in place,

3 make it work.

4 We incorporated in 1987 and, I

5 think, according to the lawyer who did the

6 incorporation papers, we are the only

7 nonprofit, stock ownership corporation in the

8 state that is intentionally nonprofit.

9 But it was designed to provide a

10 registration administration mechanism for

11 labels that would allow our growers to use a

12 product that the chemical company had concerns

13 about from a potential safety standpoint.

14 The margin of safety on most

15 compounds are either three-X, four-X, five-X,

16 100-X. And some of the compounds we have

17 registered, if you take the use rate, if you

18 go 50 percent over that, you have a very real

19 potential for liability. So it's those types

20 of compounds that we have worked on.

21 Q. So like this is the way DuPont

22 should have registered Benleaf (phonetic) in

23 Florida?

24 A. In hindsight, probably so.

25 Q. How many labels have you registered

JACK BESONER AND ASSOCIATES

1 -- was it 1986 that you incorporated?

2 A. In 1987, we incorporated. We have

3 four or five individual use compound

4 combination labels. We only have two active

5 current labels in place right now.

6 We are in the middle of submitting a

7 complete package for another registration

8 which would go in in the next six to eight

9 weeks.

10 Q. Who actually issues the

11 registrations?

12 A. It's based through the 24-C

13 mechanism. It would be a state registration

14 for a federally registered product, so it's --

15 EPA actually registers it, but it's by not

16 denying a state registration that it gets

17 registered.

18 MR. HOFFMAN: Excuse me for one

19 second now. I don't have any fears so far

20 from your questions, but since what aside

21 corporations do other than FFVA is not an

22 issue in the case.

23 I just want to ask the witness to

24 alert us if a question is asked that deals

25 with something he might think is confidential

JACK BESONER AND ASSOCIATES

1 or proprietary or something so that I can

2 object and let Tom know.

3 MR. WATTS-FITZGERALD: I don't think

4 I will be going much further on that anyway.

5 Q. (BY MR. WATTS-FITZGERALD) How much

6 of your time, Mr. Botts, is devoted to that

7 aspect of your employment with the

8 association?

9 A. Approximately 25 percent.

10 Q. Do you utilize outside consultants

11 to assist in the package preparation or the

12 evaluation of the substances that you might

13 consider registering?

14 A. The actual field trial work and

15 analytical work, yes, but not the package

16 preparation for submission.

17 Q. Who did you use for the outside

18 field trials?

19 A. There is a consultant that we use

20 who is on the board of directors of TPR,

21 Robert Johnson from Eustis, and we have also

22 utilized Doctor Orsinegos' (phonetic)

23 services, and from the analytical

24 standpoint --

25 Q. That's Joseph Orsinegos, who is the

JACK BESONER AND ASSOCIATES

1 VP of the organization?

2 A. Yes.

3 Q. Did you have any role in the forming

4 or administering of the special temporary

5 FFVA committees?

6 A. Yes.

7 Q. What committee?

8 A. The one that is specifically

9 directing the activities surrounding the EAA

10 effort.

11 Q. CARE?

12 A. Committee for Agricultural Resources

13 in the Everglades.

14 Q. Referred to as CARE, C-A-R-E?

15 A. Right.

16 Q. When was that committee formed?

17 A. April of, I think, 1991. I think --

18 I am not sure. It's in -- I would have to

19 look back on the documents. I think you have

20 those.

21 Q. Whose notion was the formation of

22 CARE?

23 A. The growers in the EAA, the

24 vegetable growers in the EAA.

25 Q. In order to form a special -- is

JACK BESONER AND ASSOCIATES

1 that a special temporary committee within

2 FFVA?

3 A. Right.

4 Q. Does membership on CARE require

5 prior membership in FFVA?

6 A. No.

7 Q. Are there any members of CARE who

8 are not members of FFVA?

9 A. No, sir.

10 Q. Was CARE separately incorporated or

11 is it wholly a subsidiary of the association?

12 MR. HOFFMAN: To the extent that

13 that question seems to have a legal

14 connotation as to what legal subsidiary of a

15 trade association is, I would object. You can

16 answer, but I think --

17 MR. WATTS-FITZGERALD: Well, I can

18 ask it a different way and take the legal

19 slant off it.

20 Obviously it's a board of directors

21 of an independent corporation, a wholly-owned

22 subsidiary and it appears he would probably

23 know.

24 Q. (BY MR. WATTS-FITZGERALD) What is

25 the relationship between the association and

JACK BESONER AND ASSOCIATES

1 this CARE organization?

2 A. The CARE committee was formed

3 specifically at the request of the vegetable

4 growers in the EAA for an ad hoc committee,

5 which is what CARE was set up as, and it has

6 to be approved by the board of directors of

7 Florida Fruit and Vegetable Association.

8 Q. Was the formation of CARE

9 formally approved in a vote of the board of

10 directors of the association?

11 A. Yes, sir.

12 Q. When did that occur?

13 A. April 10th, 1991, I believe, either

14 1991 or 1992. I would have to go back and

15 check.

16 Q. How is the CARE committee and its

17 activities financed?

18 A. Through a direct assessment that is

19 paid based upon the packages each member of

20 CARE produces.

21 Q. Is that administered by CARE itself?

22 A. Yes.

23 Q. Okay.

24 A. Well, it's administered by me as the

25 coordinator for CARE activities. Does that

JACK BESONER AND ASSOCIATES

1 make sense to you?

2 Q. Yes -- well, whether it makes sense

3 or not doesn't matter. I understand it.

4 How is it that you happen to be

5 tagged with the task of being the liason, or

6 whatever your formal title is, with respect to

7 CARE, staff contact, whatever?

8 A. Because of the area of

9 responsibility I have within the association

10 that deals with water related issues and it

11 just made logical sense to administer the

12 operations of CARE through my division.

13 Q. Is that the Environmental Pest

14 Management Functional Committee that you were

15 referring to as your position in the

16 association itself?

17 A. That is the functional committee

18 that actually determines the operating

19 parameters around which my division operates.

20 We are driven by and included in the directory

21 as a whole series of policy statements and

22 directions:

23 And what that committee has

24 recommended to the board would be the official

25 policy of FFVA which is adopted by the board

JACK BESONER AND ASSOCIATES

1 and that is the parameters around which we

2 operate in the various areas of activities

3 that the divisions of FFVA functions in.

4 Q. One of the policy statements in the

5 directory to which you and I have been

6 referring under research and education

7 indicates the encouragement, sponsorship and

8 participation in research activities related

9 to obviously the areas of members interests in

10 the agricultural field for your Florida

11 growers.

12 What research, if any, has been

13 conducted under the auspices of CARE?

14 A. CARE has provided funding to the

15 IFAS project on BNP and water management that

16 is being, I guess, the IFAS contact person is

17 Forest Izuno.

18 The primary funding for that is

19 coming through a different organization, but

20 CARE did provide $30,000 of funding to the

21 start-up of that initial activity.

22 Because we don't have a specific

23 function mechanism set up to obtain funds for

24 research, these are more or less on the basis

25 of if there is a grower need identified in a

JACK BESONER AND ASSOCIATES

1 specific area, if the growers are willing to

2 fund it, we will act as a support mechanism to

3 collect funds and get the research done.

4 But the only other thing that we

5 have done, even similar to that, was to do the

6 basic research behind obtaining a general

7 permit for wastewater disposal for tomato

8 packing facilities in the state.

9 Q. The $30,000 funding for the IFAS

10 study that Forest Izuno is principal

11 investigator on, was that $30,000 derived from

12 the direct assessment on the packages produced

13 of the CARE members?

14 A. Of the CARE members.

15 Q. Not the organization?

16 A. Not the organization as a whole, and

17 that is one thing that the CARE committee --

18 that committee has its own organizational

19 parameters.

20 It has a steering committee that

21 directs the activities of the committee, and

22 everything that that committee does is done

23 based on their direct recommendation.

24 There is no official tie to FFVA in

25 those decisions other than the fact that the

JACK BESONER AND ASSOCIATES

1 executive committee of FFVA reviews and

2 approves the minutes of the actions of the

3 CARE committee after actions have been taken.

4 Q. How do they go about approving the

5 minutes if they are not participating in the

6 activities of the CARE committee?

7 A. They approve them once the CARE

8 committee members have reviewed and approved

9 them. They adopt them as a record of what

10 that ad hoc committee has done. It's the same

11 way the functional committees operate.

12 Q. The balance of the funding for the

13 IFAS study, what was the source?

14 A. Environmental Protection District.

15 Q. The Everglades Environmental

16 Protection District?

17 A. Yes.

18 Q. How much did they contribute?

19 A. I don't have any idea.

20 Q. Do you know who would?

21 A. The members of the board and the

22 people who are participating in specific

23 operations which are land owners in the area.

24 They have a formal report that comes out that

25 shows a budget and funding, but I don't

JACK BESONER AND ASSOCIATES

1 receive copies of that.

2 Q. Is there a specific person or group

3 of persons on the CARE committee that are

4 responsible for maintaining liason with IFAS

5 for that work?

6 A. Our consultant that has been

7 advising us on technical activity, Ed Barber,

8 is the main primary contact, but we also have

9 the chairman of our steering committee is on

10 the EPD board, who is Johnny Schlechter.

11 Q. Is Johnny Schlechter named as a

12 petitioner in this case?

13 A. Yes.

14 Q. What is the formal title of the

15 division that you head at the FFVA?

16 A. Environmental and Pest Management

17 Division.

18 Q. So where it is says, "Functional

19 Committees," that also is synonymous with the

20 division?

21 A. In my case, yes.

22 Q. Do you or your division have

23 responsibility over water issues, generally,

24 for the FFVA?

25 A. For those issues of a statewide

JACK BESONER AND ASSOCIATES

1 significance, that's our primary direction,

2 yes.

3 Q. Did your committee, or your division

4 rather, have responsibility within FFVA for

5 monitoring the development of the chapter

6 40E-63 of the Florida Administrative Code, the

7 BMP rule for the EAA?

8 A. We did that at the request of CARE,

9 but it was done through our counsel and our

10 technical consultant.

11 Q. Who was your counsel for that

12 purpose?

13 A. Terry Cole.

14 Q. Of the illustrious firm of?

15 A. Oertel, Hoffman, Fernandez and Cole.

16 Q. How long has Mr. Cole represented

17 the FFVA in these types of matters?

18 A. He was retained specifically for the

19 EAA activities, and that's been since April of

20 1991, I think.

21 Q. Did the FFVA participate in any way

22 in the lawsuits filed by the United States

23 against the Department of Environmental

24 Regulation and South Florida Water Management

25 District?

JACK BESONER AND ASSOCIATES

1 A. We were originally named as

2 requesting party status in that group or in

3 that lawsuit.

4 Q. Who represented the FFVA in that

5 lawsuit?

6 A. Peeples, Earl & Blank.

7 Q. During what time period did Peeples,

8 Earl & Blank represent you?

9 A. Until the CARE committee retained

10 their own counsel and made a decision to

11 withwraw.

12 Q. Which was about April of 1991?

13 A. Yes, sir.

14 Q. How early did that representation

15 start?

16 A. I am not absolutely sure, because at

17 that time I was not directly involved in that

18 decision, in that process.

19 Q. Was the board of directors of the

20 FFVA briefed on the settlement agreement that

21 was reached between the two state agencies and

22 the United States in that suit?

23 A. I am not sure.

24 Q. How about CARE?

25 A. CARE was provided copies and some of

JACK BESONER AND ASSOCIATES

1 the members of CARE were provided copies of

2 the settlement agreement. I don't know that

3 there was ever an effort to go through it

4 point by point by point.

5 Q. When did CARE retain Mr. Barber as a

6 consultant to represent them with regard to

7 the BMP rule?

8 A. The closest I can give you is

9 probably the summer of 1991. I am not sure of

10 the absolute date on that. I would have to go

11 back and try to dig that back out from when we

12 started paying bills.

13 Q. Was Mr. Barber actually employed by

14 CARE or by FFVA?

15 A. I don't know that there is a

16 distinction there. I know FFVA pays the bills

17 that Mr. Barber sends in from funds that are

18 escrowed from CARE, who actually voted as a

19 committee to retain his services in this

20 matter.

21 Q. That was going to be my next

22 question anyway, so you have anticipated it.

23 Is Mr. Cole's representing or was his

24 representation handled the same way?

25 A. Yes.

JACK BESONER AND ASSOCIATES

1 Q. Who is currently the chairman or

2 president, whatever the title is, or the

3 director of CARE?

4 A. Johnny Schlechter.

5 Q. How does the steering committee of

6 CARE function as opposed to the entire CARE

7 committee? What is the purpose of the

8 steering committee?

9 A. The way the committee was structured

10 at the time, rather than involve all of the

11 individual growers, the decision was made that

12 each handler who collects and pays the

13 assessments for the individual named growers

14 would have a representative on the steering

15 committee that would act on behalf of the

16 members of the committee with their approval.

17 And the committee functions pretty

18 much at the direction or call of the chairman

19 as far as calling meetings and deciding when

20 issues need to be discussed through the full

21 membership or to the committee, just the

22 steering committee, or exactly how the

23 committee is to function.

24 Q. In addition to being vegetable

25 farmers -- well, are all the members of CARE

JACK BESONER AND ASSOCIATES

1 vegetable farmers in the EAA?

2 A. Yes, sir.

3 Q. Are any of them, to your knowledge,

4 also producers of other agricultural

5 commodities in the EAA?

6 A. I am sure they are.

7 Q. What other commodities?

8 A. Sugar cane, sod, rice.

9 Q. Is that it?

10 A. That's about all there is out

11 there.

12 Q. Citrus?

13 A. Not in the EAA.

14 Q. On the west side, isn't there citrus

15 over there -- aren't they starting to produce

16 citrus over there on the west side of the EAA?

17 A. Not in the EAA proper as it's

18 defined. As I understand it it starts at L-1

19 and moves this way.

20 Q. So it's east of L-1?

21 A. Yes.

22 (An off-the record discussion was

23 here had).

24 Q. (BY MR. WATTS-FITZGERALD) Within

25 your knowledge, at any time, did the Florida

JACK BESONER AND ASSOCIATES

1 Fruit and Vegetable Association as

2 distinguished from CARE because you deal with

3 CARE separately, conduct any analysis of the

4 proposed SWIM Plan for the Everglades that was

5 ultimately developed by the South Florida

6 Water Management District?

7 A. No.

8 Q. Was responsibility for review of the

9 SWIM Plan, the Everglades SWIM Plan, vested

10 solely in the CARE committee?

11 A. Yes.

12 Q. In the minutes of the September

13 20th, 1991 meeting of the CARE committee,

14 there is discussion of something referred to

15 as a bubble concept and a need for the various

16 basins to work together.

17 To help everybody out here, I have

18 got these -- I have sort of reordered them

19 into chronological order to the extent I have

20 any questions on them and I will go down

21 through the documentation chronologically.

22 The September 20th minutes, a

23 two-page document, the final paragraph on the

24 first page -- this is what it looks like

25 (holding up the document).

JACK BESONER AND ASSOCIATES

1 A. I just haven't gotten to it yet.

2 Q. That's it right there. The

3 financial paragraph on the first page talks

4 about the bubble concept, the basis of 25

5 percent reduction recommendation by IFAS.

6 Were you present at that meeting?

7 A. Yes.

8 Q. And Mr. Barber was there, of Ed

9 Barber and Associates?

10 A. Right.

11 Q. And Mr. Cole and a number of the

12 members?

13 A. Right.

14 Q. At that time there was a different

15 chairman?

16 A. Yes.

17 Q. Mr. Teets?

18 A. Yes.

19 Q. What was the bubble concept that was

20 being discussed?

21 A. The vegetable growers, since the

22 very beginning of the process of attempting to

23 deal with phosphorus loading in the EAA, was

24 concerned that, unless you looked at it as an

25 EAA wide problem:

JACK BESONER AND ASSOCIATES

1 That it would not be able to meet

2 the 25 percent reduction that was being

3 projected by IFAS as being the feasible level

4 of phosphorus reduction under BMP.

5 And it was an attempt at that point

6 to look at it as a basin-wide area and they

7 were looking at the master permit versus the

8 individual permit.

9 Q. Prior to the South Florida Water

10 Management District commencing its workshops

11 and development on 40E-63, had the Florida

12 Fruit and Vegetable Association examined the

13 issue of phosphorus in runoff from its farming

14 operations?

15 A. No.

16 Q. And, of course, the CARE committee

17 didn't exist prior to that?

18 A. No.

19 Q. At the time that this issue was

20 addressed at FFVA and at CARE, was the concern

21 for the bubble concept based on the

22 recognition that the vegetable operations had

23 a higher phosphorus application rate than some

24 other agricultural enterprises in the EAA?

25 A. That was the primary concern driving

JACK BESONER AND ASSOCIATES

1 that thought process, yes.

2 Q. Up to that point the initiation of

3 the BMP workshop process and development of

4 the rule, had any testing been done of runoff

5 of the vegetable growers, to your knowledge,

6 to determine the levels of phosphorus that

7 were, in fact, present in the runoff from

8 their operations?

9 A. Other than the publicly financed

10 work, the original IFAS work and some of the

11 data that the water management district was

12 using, I am not aware of any data that was

13 produced by the individual agricultural

14 operations.

15 Q. Mr. Hundley, according to the

16 minutes, suggested that a small group from

17 CARE should attempt to bring principals of the

18 sugar industry together, presumably with the

19 vegetable people from CARE, to develop a

20 common strategy for a master permit.

21 Was the notion being discussed

22 there a single master permit for the entire

23 EAA? Was that the essence of the bubble

24 concept?

25 A. Because of the fact that the

JACK BESONER AND ASSOCIATES

1 EAA/EPD was already there, it was the

2 contention of the vegetable growers from day

3 one that the simplest solution to a permitting

4 process would have been for the EAA/EPD to get

5 a master permit for the whole EAA, and that's

6 where that's coming from.

7 Q. The minutes further indicate that

8 Frank Teets, Gene Dodgen and John Hundley

9 would initiate the contact to set up the

10 meeting. Did they, in fact, do that, to your

11 knowledge?

12 A. For this specific instance, I am not

13 sure. I don't know.

14 Q. Now, at that same meeting,

15 Mr. Izuno, on the second page, second

16 paragraph, presented a proposal to fund a

17 project titled, "Implementation of

18 Verification of the BMPs for Reducing P

19 Loading in the EAA."

20 Is that the project that ultimately

21 the committee contributed the $30,000

22 towards?

23 A. It was his initial project proposal

24 and I am not sure how that proposal was

25 changed from the time he first presented it

JACK BESONER AND ASSOCIATES

1 here until it was finally approved and adopted

2 by the EEA/EPD.

3 To my knowledge, I think they are

4 very similar.

5 Q. So that was sort of the genesis of

6 it, though, that may have evolved from it.

7 A. Yes.

8 Q. That's a five year project?

9 A. Yes, our initial funding effort was

10 to get the project started to allow the

11 EEA/EPD to come in with their formal funding

12 cycle.

13 Forest had to have some funds up

14 front and that's what CARE funded, was the

15 initial influx of capital to get the project

16 moving.

17 Q. Now, you also introduced a

18 representative of CH2M Hill at the meeting, a

19 consulting firm, with regard to baseline water

20 quality monitoring?

21 A. Right.

22 Q. What was the purpose of bringing

23 Mr. Gong to the meeting?

24 A. The vegetable growers had initially

25 investigated the possibility of starting a

JACK BESONER AND ASSOCIATES

1 project to do their own baseline monitoring

2 because of the lack of data that we had to

3 support the phosphorus loading information

4 from the actual vegetable farms themselves,

5 and when they decided to go with the IFAS

6 proposal, that effort was dropped.

7 Q. When, if at all, did the committee,

8 in fact, implement baseline monitoring for the

9 vegetable farms in the EAA?

10 A. The baseline monitoring was, as I

11 understand it, was to be done as part of the

12 IFAS project, which is currently being

13 initiated. I am not sure.

14 Q. So you don't know if it's in place

15 yet or not?

16 A. Well, the individual permits that

17 were required under the BMP rule had a

18 requirement for monitoring as well, and I know

19 that they are in the final stages of getting

20 those approved so the individual farms will

21 have a monitoring output there.

22 I don't know if anybody has

23 initiated anything yet, because the growers

24 decided to do the individual permits

25 themselves, rather than the committee

JACK BESONER AND ASSOCIATES

1 coordinating the effort for them.

2 MR. WATTS-FITZGERALD: I will go

3 ahead and ask that that be marked as Exhibit 2

4 since we have used it so extensively.

5 (Exhibit 2 was here marked for

6 identification purposes by the court

7 reporter).

8 Q. (BY MR. WATTS-FITZGERALD) Mr. Botts,

9 within the materials you have provided is an

10 excerpt from the National Wetlands Newsletter,

11 Volume 13, No. 6, November/December, 1991:

12 And therein there is an article

13 titled, "We Need a Balancing Act," by Ed

14 Barber. Did he write that on behalf of CARE?

15 A. No, sir.

16 Q. Did he submit or otherwise clear the

17 contents of that article with the CARE

18 committee prior to having it published?

19 A. No, sir.

20 Q. Did he, to your knowledge, submit it

21 or have it cleared by the Florida Fruit and

22 Vegetable Association prior to having it

23 published?

24 A. No, sir.

25 Q. Have you read the article?

JACK BESONER AND ASSOCIATES

1 A. Not recently.

2 MR. WATTS-FITZGERALD: Let me make

3 that Exhibit 3, please.

4 (Exhibit No. 3 was here marked for

5 identification purposes by the court

6 reporter).

7 Q. (BY MR. WATTS-FITZGERALD) Next will

8 be the letter to Tilford Creel dated November

9 19th, 1991, from the Florida Fruit and

10 Vegetable Association.

11 Inviting your attention to a letter

12 on Florida Fruit and Vegetable Association

13 letterhead dated November 19th, 1991,

14 to Mr. Tilford Creel, Executive Director of

15 the South Florida Water Management District.

16 Had you seen this letter prior to it

17 being sent to Mr. Creel?

18 A. I saw a draft of it, yes, sir.

19 Q. Do you know who drafted the letter?

20 A. I believe Ed Barber did.

21 Q. Who reviewed the letter prior to

22 actually it being sent?

23 A. The CARE steering committee, our

24 counsel, and I assume that our executive vice

25 president at the time, George Zorn, also read

JACK BESONER AND ASSOCIATES

1 it. I am trying to remember.

2 Q. Mr. Zorn was the executive vice

3 president of --

4 A. Florida Fruit and Vegetable

5 Association. He still is until January 1st.

6 Q. The CARE committee, as well as the

7 steering committee, reviewed and approved the

8 submission of the letter?

9 A. I am not sure the full committee saw

10 it before it was sent. It was supplied to the

11 full committee as part of the minutes of the

12 meeting, and I am not sure exactly when that

13 took place.

14 Q. And this was intended to be comments

15 by CARE on September 24th, 1991, draft of the

16 SWIM Plan?

17 A. Right.

18 Q. Paragraph 1 of that notes that the

19 support document clearly demostrates the

20 concern that the district has for hydroperiod,

21 but that there are no significant action items

22 to address hydroperiod adjustments to the

23 system.

24 Did the CARE steering committee

25 discuss that particular point before including

JACK BESONER AND ASSOCIATES

1 it in their comments on the SWIM Plan?

2 A. Not as a specific point.

3 Q. Did anybody, to your recollection,

4 question Mr. Barber about that?

5 A. I don't know.

6 Q. The meetings of CARE and the

7 steering committee, those were not

8 stenographically recorded in any way or a

9 verbatim record kept?

10 A. No, sir.

11 Q. Going to Page 2 of the same

12 document, Paragraph 7 says, "The Plan

13 discussion of the history of the development

14 of the EAA does not review private investment

15 in economic activity.

16 "This important component would

17 include some statements recognizing farmers'

18 impact on the economic activity in the

19 region."

20 Do you recollect why a discussion of

21 economic impact and economic activity by

22 private interests in the EAA was felt to be

23 worthy of inclusion in the SWIM Plan?

24 A. I remember conversations surrounding

25 this particular area, but I don't remember the

JACK BESONER AND ASSOCIATES

1 exact discussion, no, sir.

2 Q. Do you recall whether that provision

3 was in Mr. Barber's original draft?

4 A. No, I don't.

5 Q. Paragraph 10 on the same page notes

6 that within the EAA subsidence may increased

7 the risk of flooding. Do you recall whether

8 that was in the original version?

9 A. Of the draft?

10 Q. Yes.

11 A. No, sir, I am not sure.

12 Q. Was there any discussion over the

13 cause of subsidence within the EAA?

14 A. No, sir.

15 Q. Has Florida Fruit and Vegetable

16 Association ever addressed that issue with its

17 members?

18 A. Not as a specific issue that

19 warranted anything other than the general

20 academic concerns that had been expressed by

21 IFAS and the whole EAA since there has been

22 farming.

23 Q. Has someone involved in the EAA

24 since -- going back now to roughly 1978, 1979,

25 is it your opinion or your understanding that,

JACK BESONER AND ASSOCIATES

1 generally, knowledge of subsidence as an issue

2 in the EAA is widely known or widely

3 recognized?

4 A. I would assume so, yes, sir.

5 Q. Has CARE, in its meetings, ever

6 addressed the subsidence issue in its

7 implications for phosphorus loading in its

8 runoff?

9 A. The subject has been brought up. I

10 don't know that we have ever discussed it in

11 specific detail, no.

12 Q. In the BMP as proposed by IFAS, Dale

13 Voucher and Mr. Izuno, one of the proposals is

14 maintaining the water table levels higher

15 within the EAA in part to reduce subsidence

16 and in part to reduce the remineralization of

17 the soils which can cause phosphorus loading

18 downstream.

19 During Mr. Izuno's presentation to

20 the CARE committee, did he ever discuss that

21 as a BMP for vegetables?

22 A. I don't remember him specifically

23 addressing it. There is a context for this

24 being in here, which was a January 19th flood

25 event which caused several of the members of

JACK BESONER AND ASSOCIATES

1 CARE to lose substantial amounts of their crop

2 because of a lack of ability to move water off

3 of their land.

4 According to the district, one of

5 the reasons that the water did not move as

6 well as it had in the past was because the

7 control levels in the interim operating permit

8 were such that it did not take into account

9 the reduction in elevation due to subsidence

10 since they were adopted in -- I guess, in

11 1979. I am not sure.

12 But that's why that's in there. The

13 growers were very sensitive to the flooding

14 issue which, at least from the district's

15 standpoint, had been attributed partially to

16 subsidence.

17 Q. The CARE committee members who are,

18 at least the vegetable portion of their

19 operations, are those in 298 district?

20 A. Some are, and I am not sure which

21 ones are and which ones aren't.

22 Q. The members that lost or had

23 substantial crop losses due to the January,

24 1991, rain event, were they in the 298

25 district?

JACK BESONER AND ASSOCIATES

1 A. No.

2 Q. So if they are not in 298 district,

3 one would suspect, then, that they had their

4 own pumping to remove water from their farm

5 areas; is that correct?

6 A. Right.

7 Q. Paragraph 9 on the same page of the

8 same document discusses evaluation of

9 treatment options or alternatives to

10 stormwater treatment areas. Did, at any time,

11 the CARE committee discuss, prior to

12 presentation by U.S. Sugar at a later meeting,

13 alternative treatment mechanisms to remove

14 phosphorus from stormwater runoff from the

15 EAA?

16 A. Not that I am aware of.

17 MR. WATTS-FITZGERALD: Mark that as

18 Exhibit 4.

19 (Exhibit No. 4 was here marked for

20 identification purposes by the court

21 reporter).

22 Q. (BY MR. WATTS-FITZGERALD) As part

23 of your duties with the Florida Fruit and

24 Vegetable Association, did you attend any of

25 the workshops on the BMP rule?

JACK BESONER AND ASSOCIATES

1 A. Yes, sir.

2 Q. I won't ask you the specific dates

3 because there were so many, but did you attend

4 all the meetings or substantially all the

5 meetings?

6 A. Probably 60 percent of them.

7 Q. Who else attended those meetings on

8 behalf of the Florida Fruit and Vegetable

9 Association?

10 A. Terry Cole and Ed Barber, on behalf

11 of CARE, and several of the members also had

12 representatives at most, if not all, of the

13 meetings.

14 Q. Now, Mr. Barber and Mr. Cole were

15 there under the auspices of CARE, correct?

16 A. Right.

17 Q. Were you there because of your CARE

18 liason job or separately as a representative

19 of the vegetable association?

20 A. As a CARE liason person.

21 Q. Which members do you recall having

22 personally attended those meetings?

23 A. Of CARE?

24 Q. Yes.

25 A. South Bay Growers, A. Duda

JACK BESONER AND ASSOCIATES

1 (phonetic) & Sons, W.E. Schlechter & Sons,

2 Pro-Farms, R.C. Hutton, and there could have

3 been others, but those were the ones that

4 stick in my mind.

5 Q. Who represented South Bay Growers at

6 the meetings?

7 A. It varied. Charles Wilson, Mielo

8 Hoot, (phonetic) Julio Sanchez, Don Tanner.

9 Q. Do you know Ms. Wein?

10 A. Yes.

11 Q. Did she attend any of the meetings?

12 A. Not that I am aware of on the

13 workshop for the BMP rule.

14 Q. You saw her later at board meetings

15 on the SWIM Plan?

16 A. She attended later board meetings at

17 the SWIM Plan. I don't think I was in

18 attendance at any of those board meetings

19 where she made presentations.

20 Q. During the development of the BMP

21 rule, comments and suggestions were made by

22 Mr. Cole and Mr. Barber regarding aspects of

23 the regulatory program as it was proposed and

24 ultimately adopted.

25 To your knowledge, were they

JACK BESONER AND ASSOCIATES

1 representing any other interests other than

2 CARE at that time?

3 A. I know Ed has other clients in the

4 EAA. I don't know that Terry does. Terry was

5 there specifically at our direction as CARE.

6 And Ed was at most of them, specifically, at

7 our direction.

8 Q. Are you familiar with the early

9 baseline option that was adopted in the 40E-63

10 rule?

11 A. I know they adopted one.

12 Q. Was that topic discussed by the CARE

13 committee?

14 A. It was discussed, I know, by the

15 technical committee of CARE, and it was

16 discussed at several of the general membership

17 meetings and as the evolution of how the

18 baseline establishment and the calculations

19 were being made to determine what the load

20 component would be.

21 I don't know that as it was finally

22 adopted it was one of the options that I know

23 the vegetable growers felt like they needed to

24 have in the rule as it was finally adopted.

25 Q. Since you have been with the Florida

JACK BESONER AND ASSOCIATES

1 Fruit and Vegetable Association, has the

2 membership in the association from the EAA

3 increased or declined?

4 A. It has remained constant.

5 Q. Is that in terms of numbers of

6 growers or acreage, what constant are you

7 using, what parameter?

8 A. Percentage of the people that are

9 still involved in agricultural production in

10 the Glades that are members of Florida Fruit

11 and Vegetable Association have not changed.

12 There is a transition of people

13 going in and out of business and, from that,

14 membership has changed, but the relative

15 percentage has remained constant.

16 Q. Did you have a sense of whether, as

17 an industry, the vegetable industry in the EAA

18 is expanding or contracting or remaining more

19 or less level over the --

20 A. Total acreage for the specific

21 commodities has declined.

22 Q. How much since, say, 1979, when you

23 began with Florida Fruit and Vegetable

24 Association -- I am sorry with -- with South

25 Bay Growers?

JACK BESONER AND ASSOCIATES

1 A. Well, celery acreage for the State

2 of Florida, and most of that is EAA

3 production, has gone down from 13,000 acres to

4 around 8,000 acres.

5 The sweet corn acreage is increasing

6 a little bit because everybody has decided

7 they like the new supersweet varieties and

8 there is a market out there.

9 The lettuce industry has declined in

10 numbers of people involved, but not

11 necessarily from the acreage.

12 Over all, there are fewer

13 individuals farms involved in vegetable

14 production now as there was was in 1979.

15 Q. Are the vegetable operations being

16 centralized or amalgamated into larger

17 operations?

18 A. Yes and no. A lot of it depends on

19 commodities. Vegetable production, especially

20 on the highly organic soils of EAA is a very

21 complex, specialized business, and it requires

22 very high level of capitalization to be able

23 to go in and start a vegetable production

24 industry just because of the specialized

25 equipment that you have to have from planters

JACK BESONER AND ASSOCIATES

1 to sprayers to harvest machines and it's very

2 labor intensive.

3 You also have a marketing phenomenon

4 on the other end and unless you have got a

5 central core of enough production to support a

6 packing, selling, handling facility, it

7 doesn't make a lot of sense to go out there

8 and plant 40 acres of lettuce, celery, or

9 whatever.

10 You have got a certain minimum size

11 that you have to have in order to sustain the

12 economic viability of an industry.

13 Q. To acheive that economic viability,

14 then, you need a certain economy of scale?

15 A. Yes.

16 Q. So when, for example,

17 Mr. Schlechter and Mr. Pope say that

18 individual growers, the small grower, the

19 independent grower is becoming the dinosaur of

20 the EAA, that would match, to some degree,

21 your perception of the economics of the

22 operation?

23 A. What I have seen, yes.

24 Q. If I can refer your attention to

25 another set of minutes of the CARE committee

JACK BESONER AND ASSOCIATES

1 dated November 21st, 1991. You were present

2 at that meeting, were you not?

3 A. Yes.

4 Q. On the second -- well, the bulk of

5 the minutes discusses a workshop at the water

6 management district held that day discussing

7 master permits and some other issues, right?

8 A. Yes, sir. I was not in attendance

9 at that workshop, no.

10 Q. You were just at the CARE committee

11 meeting?

12 A. Yes.

13 Q. On the second page of the minutes,

14 the first paragraph notes that there was

15 discussion of the Everglades SWIM Plan and a

16 motion to submit comments in writing as

17 drafted by Terry Cole for Frank Teets'

18 signature.

19 Although that is dated the 21st, is

20 that, in fact, the letter that we already have

21 as Exhibit 4 dated the 19th?

22 A. I would assume so.

23 Q. And it indicates that Mr. Hundley

24 was present and made the motion to submit that

25 document, correct?

JACK BESONER AND ASSOCIATES

1 A. Yes.

2 MR. WATTS-FITZGERALD: Make that

3 Exhibit 5.

4 (Exhibit No. 5 was here marked for

5 identification purposes by the court

6 reporter).

7 Q. (BY MR. WATTS-FITZGERALD) Recent

8 developments on letterhead dated January 2nd,

9 1992 -- in a memorandum to the committee for

10 agricultural resources in the Everglades from

11 you on January 2nd, 1992, you discuss recent

12 developments; is that correct?

13 A. Yes.

14 Q. You note there that John Schlechter,

15 in the interim, had been elected to the board

16 along with David Beardsley. That refers to

17 what board?

18 A. The EPD, Environmental Protection

19 District.

20 Q. And that is the self-taxing district

21 in the EAA?

22 A. Right.

23 Q. What is the relationship between

24 FFVA and the EPD?

25 A. No direct relationship other than

JACK BESONER AND ASSOCIATES

1 the fact that most of our members in the area

2 are also the people who are members of the

3 EAA/EPD because they are the landowners in the

4 area.

5 Q. Does FFVA, on behalf of its members,

6 maintain any liason with the EPD with regard

7 to research necessary to benefit its members?

8 A. Not as Florida Fruit and Vegetable

9 Association. The CARE committee does.

10 Q. Who, on the CARE committee, carries

11 out that function?

12 A. Well, Ed Barber is hired to do it,

13 but there is a committee of the EAA/EPD which

14 is coordinating the research which has

15 membership that includes CARE committee

16 people.

17 And I am not exactly -- Charles

18 Wilson was on it from South Bay Growers and I

19 am not sure who else is on that committee.

20 Q. To your knowledge, what research, if

21 any, is the EPD doing that is intended to

22 benefit the vegetable growers in the EAA?

23 A. I know they have several sites that

24 they are doing monitoring for water quality

25 information.

JACK BESONER AND ASSOCIATES

1 Q. Where are they located?

2 A. I am not sure. I don't have the

3 individual locations.

4 Q. In broad terms, within the EAA water

5 conservation areas?

6 A. As far as I know, they are in the

7 EAA.

8 Q. Who would be the most knowledgeable

9 person about that operation within CARE?

10 A. Our consultant, Ed Barber.

11 Q. Other than monitoring water quality

12 at a number of sites in the EAA, is the EPD,

13 to your knowledge, conducting any other

14 research related to the water quality issues

15 in the Everglades SWIM Plan?

16 A. There are other components of their

17 proposal, but I haven't specifically looked at

18 those, no.

19 Q. Do you know what those components

20 are?

21 A. No.

22 Q. Would Mr. Barber be the most

23 knowledgeable on that?

24 A. Right.

25 Q. He notes that an oversight committee

JACK BESONER AND ASSOCIATES

1 to work with IFAS on implementation of the

2 study proposal was appointed by the EPD and

3 that Frank Teets, Fritz Stein and Peter

4 Rosendahl were appointed to this committee.

5 Frank Teets was, at the time, the

6 chairman?

7 A. Yes.

8 Q. Is he still with CARE?

9 A. No.

10 Q. He has left the organization?

11 A. Yes.

12 Q. Is he still farming in the EAA?

13 A. No.

14 Q. Did he go out of business?

15 A. He resigned from being general

16 manager of South Bay Growers and is now

17 employed in the construction industry in West

18 Palm Beach.

19 Q. Who is Fritz Stein?

20 A. An ex-board member of the water

21 management district. He is a sugar cane

22 grower and a member of the co-op.

23 Q. What vegetable production is he

24 involved in?

25 A. None that I know of.

JACK BESONER AND ASSOCIATES

1 Q. When you say the co-op, do you

2 mean the Florida --

3 A. Sugar Cane Growers Co-op at Belle

4 Glade.

5 Q. Who is Peter Rosendahl?

6 A. He is an environmental person for

7 the Florida Sugar Cane League. This committee

8 was appointed by EPD. It's not a CARE

9 committee.

10 Q. I understand. And the CARE

11 committee designated Ed Barber to be the

12 technical representative or consultant or

13 overseer of the work of that committee on

14 behalf of CARE?

15 A. Well, Mr. Teets asked that CARE

16 support his activities by allowing Ed to serve

17 as his technical support.

18 MR. WATTS-FITZGERALD: We will make

19 that the next numbered exhibit, Exhibit

20 No. 6.

21 (Exhibit No. 6 was here marked for

22 identification purposes by the court

23 reporter).

24 Q. (BY MR. WATTS-FITZGERALD) The next

25 document will be the minutes dated April 7th,

JACK BESONER AND ASSOCIATES

1 1992, one page.

2 Mr. Botts, have you ever read the

3 SWIM Plan, the March 13th, 1992, version

4 ultimately adopted by the board of the South

5 Florida Water Management District?

6 A. Not the whole document, no, sir.

7 Q. What portions have you read?

8 A. Part of the planning documents and

9 some of the sections of the support documents,

10 but I couldn't tell you exactly what pages.

11 Q. I understand that the page is --

12 it's a fairly thick document -- can you tell

13 me the subject areas that you were interested

14 in that you reviewed in those documents.

15 A. It was primarily just to get a

16 general overview of what the document said.

17 Q. Have you reviewed the earlier

18 drafts, the five earlier drafts of the SWIM

19 Plan?

20 A. I have seen parts of two of them. I

21 have not reviewed them to any degree, no.

22 Q. So the parts of the two earlier

23 drafts that you did see, you reviewed those,

24 if at all and to a lesser extent, than you did

25 the March 13th?

JACK BESONER AND ASSOCIATES

1 A. Right.

2 Q. Did you personally ever develop

3 comments to be sent to the board of the South

4 Florida Water Management District regarding

5 the SWIM Plan?

6 A. No, sir.

7 Q. Did the Florida Fruit and Vegetable

8 Association ever comment on those drafts or

9 final versions other than through CARE?

10 A. Not except through CARE, no, sir.

11 Q. Other than the letter that we have

12 dated November 19th, which is Exhibit 4, I

13 believe it is, did the CARE committee provide

14 any other written comments on the SWIM Plan to

15 the board of the South Florida Water

16 Management District or staff of the district?

17 A. I don't know. There were several

18 presentations and discussions that were held

19 between CARE representatives or members of

20 CARE, and I don't know whether any of the

21 direct members of CARE testified at the board

22 meeting where it was adopted over that

23 two-day period.

24 I am sure there probably were, but

25 written comments, I am not sure other than --

JACK BESONER AND ASSOCIATES

1 Q. Other than the one letter?

2 A. Other than the one letter, and

3 conversations as a result of that letter

4 between our technical consultant and

5 individual staff members or people at the

6 district.

7 Q. Did CARE ever attempt to develop

8 alternative language for any of the portions

9 of the SWIM Plan?

10 A. No, sir.

11 Q. At the meetings of CARE, what was

12 the general sense of the, if you have one, of

13 the members of that committee regarding the

14 acceptability of the final SWIM Plan to them?

15 A. Unfavorable.

16 Q. Did the steering committee, as the

17 action arm of the CARE committee itself, if

18 you will, ever suggest or in any way attempt

19 to get the committee to adopt formal written

20 comments in opposition to the SWIM Plan to be

21 sent to the board other than in the November

22 19th letter?

23 A. I don't know. The possibility of

24 the administrative challenge process was

25 discussed at several meetings and that was the

JACK BESONER AND ASSOCIATES

1 quorum under which they felt was the most

2 effective way to address the issues that the

3 membership felt were important.

4 Q. Who broached the notion that a

5 formal administrative challenge was the most

6 effective way to address concerns of the

7 membership with the SWIM Plan?

8 A. I would assume it was on the advice

9 -- this is remembering discussions back --

10 that go even before we were talking about an

11 actual document.

12 MR. RUSSELL: Excuse me. What is

13 the time frame that we are talking about

14 here? To the extent during the

15 representations of Peeples, Earl & Blank, to

16 the extent it's attorney/client discussions

17 that you are talking about, I will object.

18 MR. WATTS-FITZGERALD: I think I can

19 clarify that for you, Counsel.

20 MR. RUSSELL: I am not sure what you

21 are talking about.

22 Q. (BY MR. WATTS-FITZGERALD) According

23 to the testimony, correct me if I am wrong,

24 Peeples, Earl & Blank stopped representing

25 Florida Fruit and Vegetable Association

JACK BESONER AND ASSOCIATES

1 somewhere around April of 1991.

2 And along about April 10th, plus or

3 minus, of 1991, Mr. Hoffman's firm was

4 retained to represent the CARE committee, and

5 my question was to the CARE committee.

6 MR. RUSSELL: And he started to go

7 back and he started to say prior to this time

8 is what I --

9 THE WITNESS: I was addressing CARE

10 because that's when we formerly brought the

11 committee together to actually consider doing

12 something other than being a party, which was

13 under the work of your firm.

14 MR. WATTS-FITZGERALD: I would also,

15 for the record, note that it's not clear to me

16 if the witness can waive whatever privilege

17 might have existed, but I don't think it's an

18 issue here.

19 MR. HOFFMAN: I understood the

20 question to be who, at the CARE committee

21 meeting, thought it might be a good idea to do

22 it, even if he says "counsel," if that's as

23 far as it goes, that's okay.

24 If it gets into, "What did you

25 discuss," then --

JACK BESONER AND ASSOCIATES

1 MR. WATTS-FITZGERALD: And I am not

2 asking in that detail.

3 Q. (BY MR. WATTS-FITZGERALD) I guess

4 maybe another way to put it: Was this an idea

5 that was broached by counsel or was this an

6 idea that was broached by the members of the

7 committee, if you can recall?

8 A. The CARE committee?

9 Q. Yes.

10 A. I know that the CARE committee asked

11 what their options were on how to deal with

12 it, and that was one of the options that was

13 discussed by counsel.

14 Q. Did there come a time when the CARE

15 committee received -- well, let me finish that

16 topic before I move on.

17 Prior to the establishment of the

18 CARE committee, had the Florida Fruit and

19 Vegetable Association, to your knowledge, ever

20 reviewed earlier drafts of the SWIM Plan and

21 submitted any comments thereon?

22 A. No.

23 Q. Did there come a time when the CARE

24 committee received a presentation on

25 alternatives to the SWIM Plan suggested by

JACK BESONER AND ASSOCIATES

1 other agri-industry sources in the EAA?

2 A. Yes, sir.

3 Q. Who made that presentation?

4 A. Malcolm Wade.

5 Q. Are you aware of Mr. Wade's

6 affiliation?

7 A. Yes.

8 Q. What is that?

9 A. He works for U.S. Sugar Corporation.

10 Q. Is he a vice president there?

11 A. I don't know what his official title

12 is.

13 Q. How did Mr. Wade come to make a

14 presentation to the CARE committee?

15 A. The Florida Sugar Cane League

16 requested that we meet and have the

17 presentation made on April 7th.

18 Q. Was that request directed to you?

19 A. Actually, I think it went to members

20 of the steering committee because at the time

21 the request came in, I was in the middle of a

22 tour with EPA officials on the lower-west

23 coast and I found out that the meeting was

24 going to take place about noon on Monday, the

25 7th.

JACK BESONER AND ASSOCIATES

1 Q. Were you present at that meeting?

2 A. Yes, sir.

3 Q. If I can invite your attention to

4 the minutes of the April 7th, 1992 meeting, it

5 does not indicate you were there, but you, in

6 fact, were at that meeting and heard

7 Mr. Wade's presentation?

8 A. I drove over specifically from

9 Naples to be at that meeting. It's an

10 oversight on my part that it's not in the

11 minutes. I wrote them, too. That's the bad

12 part about the whole deal.

13 Q. So the various minutes that we have

14 been examining, you actually are the author of

15 those minutes?

16 A. All except for one meeting, and I am

17 not sure exactly which meeting. I would have

18 to go back and -- it's not any of these, I

19 don't think.

20 Q. Who, other than Mr. Wade, was

21 present from the Florida Sugar Cane League?

22 A. I don't think anybody unless Andy

23 Rackley but, if he was there, he would have

24 been shown in the minutes. I think Bubba was

25 the only one -- Malcolm was the only one that

JACK BESONER AND ASSOCIATES

1 was there.

2 Q. The presentation made, was that a

3 slide show and --

4 A. The same presentation they made at

5 the board meeting of the South Florida Water

6 Management District.

7 Q. I was going to ask that, were you at

8 the board meeting when the Sugar Cane League

9 subsequently made a presentation through

10 Robert Buker (phonetic) of their proposals?

11 A. I am going to have to ask a question

12 here, because I am not sure whether -- there

13 was a workshop -- that was the week of the

14 board meeting and I don't know whether they

15 made their presentation at the workshop --

16 I was there for one of the two days

17 that the board met and I can't remember

18 whether I was there when Bob made the

19 presentation or not. I was there one of the

20 two days of the board meeting.

21 Q. But you saw the same presentation

22 being made to the board at some point, or you

23 are not certain?

24 A. I don't know that I ever saw the

25 official presentation. I could be wrong,

JACK BESONER AND ASSOCIATES

1 because if it's the day -- if he made the

2 presentation the day I was at the board

3 meeting that started at 9:00 o'clock in the

4 morning and it was still going at 7:30 that

5 night and it tended to run together.

6 I just can't remember when the

7 presentation was made.

8 Q. Your notes state in the second

9 paragraph that it was projected that based on

10 sugar cane production areas only the total

11 phosphorus removal target under the SWIM Plan

12 could be achieved at mcuh lower direct cost

13 and STAs, stormwater treatment areas.

14 Who made that statement?

15 A. Based on the presentation that was

16 presented to us at that meetings.

17 Q. So it was your understanding from

18 Mr. Wade's presentation that the entire

19 phosphorus removal goal of the Everglades SWIM

20 Plan could be achieved solely by using these

21 alternative mechanisms on sugar cane lands in

22 the EAA?

23 A. Upon the presentation that was given

24 to us, yes.

25 Q. There must have been a lot of

JACK BESONER AND ASSOCIATES

1 cheering among the CARE members to hear that.

2 A. That was one of the reasons why they

3 endorsed the alternative proposal.

4 Q. Did they send a letter to that

5 effect to the board?

6 A. Yes.

7 Q. Who authored the letter? The reason

8 I asked was I didn't see it in the materials.

9 A. I think Frank Teets did, and I am

10 not sure because --

11 Q. Did you ever see the letter?

12 A. It was read into the minutes of the

13 board meeting that I attended of the water

14 management district. I don't know that I saw

15 a draft. I was traveling. I was not even in

16 the office during that period of time.

17 Q. But that endorsement was authored by

18 the entire CARE committee on April 7th?

19 A. Yes.

20 MR. HOFFMAN: Excuse me -- it looks

21 like that would be a document that would be

22 within your request and we will try and get

23 you a copy.

24 MR. WATTS-FITZGERALD: Counsel, I

25 recall the letter being read to the board, but

JACK BESONER AND ASSOCIATES

1 I was not sure it was not just counsel making

2 a representation to the board with

3 Mr. Cole's usual efficiency, sounding very

4 formal.

5 MR. HOFFMAN: I have not seen it and

6 I have gone through boxes of documents. If we

7 have it, we can give it to you.

8 THE WITNESS: I don't know that I

9 have an actual copy of what was sent. I will

10 try and get one. I can get it from the water

11 management district.

12 Q. (BY MR. WATTS-FITZGERALD) I note

13 from your notes that the Sugar Cane League

14 requested that you endorse the proposal

15 through a letter to the board for the meeting

16 scheduled the following day.

17 So it may be that this was kind of a

18 slap it together and do it fast operation and

19 didn't make the file.

20 It's noted in your minutes that the

21 motion to recommend or support the proposal to

22 the board was made by John Schlechter and

23 seconded by E.L. Pope. Is that the

24 Mr. Schlechter and Mr. Pope that are listed as

25 petitioner parties?

JACK BESONER AND ASSOCIATES

1 A. Yes.

2 Q. In the next paragraph it appears

3 that the call for volunteers went out during

4 the meeting; is that correct?

5 A. Yes.

6 Q. Who made the call for volunteers to

7 be listed or to fill in the blanks in the

8 draft petition for an administrative hearing

9 to challenge the SWIM Plan?

10 A. I suspect it was probably mine.

11 Q. Why would you have been in the

12 position of asking for volunteers to become

13 the legal challengers or the named challengers

14 -- to stay away from a legal judgment.

15 A. Advice of counsel.

16 Q. What counsel was present at that

17 meeting?

18 A. None. The draft document came to

19 me, and then a phone call earlier in the day

20 -- the draft document that was circulated had

21 blanks for named farms within the area.

22 Q. How long had you had the document at

23 that point?

24 A. I don't know that I got a copy of it

25 until I got to the meeting that night, because

JACK BESONER AND ASSOCIATES

1 I am not sure exactly how -- I don't remember.

2 Q. Prior to accepting the volunteering

3 by Louis Pope Farms, W. Lee Schlechter & Sons

4 and Hundley Farms, did you make any effort to

5 ascertain if they had even read the SWIM Plan

6 they were purporting to volunteer to

7 challenge?

8 A. Me personally, no.

9 Q. Did you ask them?

10 A. No.

11 Q. To your knowledge, had they read the

12 SWIM Plan that they were lining up to

13 challenge?

14 A. They had been involved in the

15 discussions that lead to the decision to

16 proceed with an administrative challenge.

17 They received the same background information

18 on the documents that were there from counsel

19 and our technical consultant that the rest of

20 the members of CARE had.

21 Q. And that all occurred at earlier

22 meetings?

23 A. There had been di