1

1 DIVISION OF ADMINISTRATIVE HEARINGS

2 DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA

3 SUGAR CANE GROWERS COOPERATIVE )

OF FLORIDA; ROTH FARMS, INC.; )

4 and WEDGWORTH FARMS, )

Petitioners, )

5 V ) DOAH Case No. 92-3038

SOUTH FLORIDA WATER MANAGEMENT )

6 DISTRICT, an agency of the State)

of Florida, et al., )

7 Respondents. )

FLORIDA SUGAR CANE LEAGUE, INC.;)

8 UNITED STATES SUGAR CORPORATION;)

and NEW HOPE SOUTH, INC., )

9 Petitioners, ) DOAH Case No. 92-3039

V )

10 SOUTH FLORIDA WATER MANAGEMENT )

DISTRICT, an agency of the State)

11 of Florida; et al., )

Respondents. )

12 FLORIDA FRUIT AND VEGETABLE )

ASSOCIATION; LEWIS POPE FARMS; )

13 W. E. SCHLECHTER & SONS, INC., )

and HUNDLEY FARMS, INC., )

14 Petitioners, ) DOAH Case No. 92-3040

V )

15 SOUTH FLORIDA WATER MANAGEMENT )

DISTRICT, an agency of the State)

16 of Florida, et al., )

Respondents. )

VOLUMEI

18 Deposition of Steven M. Davis

Taken before Marianne Martini Holmes,

20 Registered Professional Reporter and Notary Public in

and for the State of Florida at large, pursuant to

21 notice of taking deposition filed by the Petitioners

in the above cause.

22 - - -

23 Monday, March 2, 1993

319 Clematis Street

24 West Palm Beach, Florida 33401

9:05 - 5:40 p.m.

1 APPEARANCES:

2 On behalf of the Petitioners Florida Sugar Cane League,

3 Inc., United States Sugar Corporation, and New Hope

4 South, Inc.:

5 Peeples, Earl & Blank, P.A.

6 One Biscayne Tower

7 Suite 3636

8 Two South Biscayne Boulevard

9 Miami, Florida 33131

10 By: MARK T. KOBELINSKI, ESQUIRE

11 WILLIAM L. HYDE, ESQUIRE

13 On behalf of the Petitioners Sugar Cane Growers

14 Cooperative of Florida, Roth Farms, Inc., and

15 Wedgworth Farms, Inc.:

16 Hopping, Boyd, Green & Sams

17 123 South Calhoun Street

18 Tallahassee, Florida 32314

19 By: WILLIAM H. GREEN, ESQUIRE

1 APPEARANCES: (Continued)

2 On behalf of the Respondent SFWMD:

3 Popham, Haik, Schnobrich & Kaufman, Ltd.

4 4100 One Centrust Financial Center

5 100 Southeast Second Street

6 Miami, Florida 33131

7 By: PAUL L. NETTLETON, ESQUIRE

9 On behalf of the Intervenor, United States of America:

10 Department of Justice

11 601 Pennsylvania Avenue, N.W.

12 Fifth Floor, Room 5613

13 Washington, D.C. 20004

14 By: STEPHEN G. BARTELL, ESQUIRE

15 DAVID WILLIAM GEHLERT, ESQUIRE

18 Also Present: W. Michael Dennis, Ph.D.

19 Courtney T. Hackney, Ph.D.

1 - - -

2 I N D E X

3 - - -

5 WITNESS: DIRECT CROSS REDIRECT RECROSS

6 Steven M. Davis

By Mr. Kobelinski 5

10 - - -

11 E X H I B I T S

12 - - -

14 NUMBER PAGE NO. DESCRIPTION

15 DAVIS EXHIBIT 1 7 Resume'

16 DAVIS EXHIBIT 2 107 "Phosphorus Inputs And

Vegetation Sensitivity In

17 The Everglades"

INDEXED QUESTION/ANSWER PAGE NO. LINE NO.

19 71 19

72 1

1 P R O C E E D I N G S

2 - - -

3 Thereupon,

4 Steven M. Davis,

5 being by the undersigned Notary Public first duly

6 sworn, was examined and testified as follows:

7 THE WITNESS: I do.

8 DIRECT (Steven M. Davis)

9 BY MR. KOBELINSKI:

10 Q. Good morning, Mr. Davis. My name is Mark

11 Kobelinski.

12 If you could state your name and address

13 for the record, please.

14 A. Steve Davis, 8358 Sunup Trail, S-u-n-u-p.

15 Q. Mr. Davis, have you ever been deposed

16 before?

17 A. Yes.

18 Q. About how many times?

19 A. Once.

20 Q. And that would be the deposition during the

21 federal litigation of the United States versus South

22 Florida Water Management District?

23 A. That's correct.

24 Q. Okay. My name is Mark Kobelinski, and I

25 represent United States Sugar Corporation, Florida

1 Sugar Cane League and New Hope South, Incorporated.

2 We are petitioners in an administrative challenge

3 dealing with the Everglades SWIM Challenge, SWIM

4 Plan. I think you've aware of that.

5 I'll be asking you questions today

6 regarding facts that you may have that deal with the

7 issues in this action and also with regard to any

8 opinions you may have as to the subject or issues in

9 the case.

10 If at any time you don't understand a

11 question, please stop me and ask me to rephrase it

12 and I'll attempt to do so.

13 A. Um-hum.

14 Q. If you don't know the answer to a question

15 or don't remember, "I don't know" and "I don't

16 remember" are the best answers.

17 On the other hand, if you have any

18 recollection as to facts, please state so and then

19 you can qualify it in any manner you so wish, all

20 right?

21 A. Okay.

22 Q. Okay. Are you aware that you are listed as

23 an expert witness for the District?

24 A. Yes.

25 Q. Okay. The listed areas for your expertise

1 are biology and wetland ecology; is that correct, to

2 your knowledge?

3 A. To my knowledge the listed areas were

4 cattail expansion and the effects of nutrients.

5 Q. That would be the subject of your opinions,

6 and we'll be getting into that.

7 But as far as the areas of your expertise,

8 the District has listed biology and wetland ecology,

9 is that accurate?

10 A. Right, yes.

11 MR. KOBELINSKI: Go ahead and mark that.

12 (The document was marked

13 Davis Exhibit Number 1.)

14 BY MR. KOBELINSKI:

15 Q. Mr. Davis, I'm showing you what's been

16 marked as Exhibit 1 to your deposition. It is a

17 multiple-page document which on the top states

18 "Resume' Steven M. Davis" and bears Bates Numbers

19 0959632 through 0959636.

20 Could take a look at that document and see

21 if you can identify it for us?

22 A. Yes, it's my resume'.

23 Q. Is that the most recent copy of your

24 resume'?

25 A. Yes.

1 Q. And if given the opportunity, is there any

2 type of update --

3 (Thereupon, Mr. Green entered the room.)

4 (Discussion held off the record.)

5 BY MR. KOBELINSKI:

6 Q. I'll go ahead and restate my last question

7 which was if given the opportunity, would there be

8 any updates to this resume'?

9 A. No.

10 Q. All right.

11 A. Oh, yes there is. Excuse me.

12 Q. Okay. And what would that be?

13 A. The senior professional, I had forgot to

14 change that. It's still supervising professional in

15 the 8/92 to present.

16 Q. Is there a difference between the two?

17 A. It's the same salary grade. It's just

18 senior professional doesn't have any supervisory

19 responsibility.

20 Q. Okay. Could you very briefly tell us what

21 your education is starting at your undergraduate

22 degree and the areas of concentration?

23 A. My undergraduate degree is a bachelor of

24 science in zoology from University of Illinois. My

25 graduate degree is a master of science in resource

1 management and aquatic biology from University of

2 Georgia.

3 MR. KOBELINSKI: Could you read back that

4 last part? Thank you.

5 (Thereupon, a portion of the record

6 was read by the reporter.)

7 BY MR. KOBELINSKI:

8 Q. The master's degree, is that essentially

9 one program, or since you have listed resource

10 management and aquatic biology, is that two separate

11 programs?

12 A. It's one program. The University of

13 Georgia has an Institute of Ecology that you can take

14 interdisciplinary courses for your degree.

15 Q. What was your master's thesis on?

16 A. It was on the effects of a reservoir on the

17 ecology of a small stream.

18 Q. And where was that located?

19 A. In North Georgia.

20 Q. Okay. Post master's degree at Georgia,

21 have you haBRITISH additional educational courses or

22 experience?

23 A. No.

24 Q. Okay. The resume' essentially then covers

25 the educational background that we've discussed; is

1 that correct?

2 A. Yes.

3 Q. All right. On the third page of this

4 resume' at Bates 0959634 of Exhibit 1 it's entitled

5 at the top "Publications" which goes on for the

6 following page and a half.

7 Are there any additional publications that

8 are not included on this resume' that would be added

9 if the resume' was updated today?

10 A. (Witness reviewing the document).

11 Yes, I'm co-author of a paper authored by

12 Nancy Urban and with the third author Nick Aumen on

13 cattail and sawgrass dynamics in Conservation Area 2A

14 that's been accepted since this resume' was prepared.

15 Q. Okay. That is yet to be published; is that

16 correct?

17 A. It's been accepted. It hasn't been

18 published.

19 Q. Are there any additional publications other

20 than the Nancy Urban cattail/sawgrass paper?

21 A. No, not that I can think of.

22 Q. Okay. Are there any papers or publications

23 that are still in the process or still in the

24 drafting stage that are not listed in this Exhibit 1?

25 A. I'm working on a book, co-editor of a book

1 with a John Ogden from Everglades National Park on

2 the Everglades that would be published this summer.

3 Q. Has it been accepted for publication?

4 A. It's not a journal article, so it's not a

5 matter of acceptance.

6 We have a publisher, yes.

7 Q. Okay. Who is the publisher of the

8 cattail/sawgrass paper by Nancy Urban and yourself

9 and Dr. Aumen?

10 A. Aquatic Botany.

11 Q. Do you have a deadline as to when that

12 paper is to be submitted to Aquatic Botany?

13 A. It's already been submitted. It's been

14 accepted.

15 Nancy Urban is making minor revisions in

16 the paper as recommended by the referees. I don't

17 know if she has a deadline.

18 Q. Do you know --

19 A. As junior author I'm not involved in those

20 revisions, so...

21 Q. Have you been reviewing the revisions as

22 they take place?

23 A. I looked at the referee comments. I have

24 not reviewed the revisions.

25 Q. With regard to the book on the Everglades,

1 who is the publisher?

2 A. St. Lucie Press in Delray Beach.

3 Q. You mentioned that it's anticipated that

4 this book will be published in the summer.

5 Is there again a deadline or a specified

6 date that it is intended to be published?

7 A. The publisher has put out an announcement

8 it will be coming out in June. I think that may be

9 optimistic, but...

10 Q. Has the publisher given any deadlines as

11 far as the submission of a final draft or final

12 drafts of various chapters for the book?

13 A. We've agreed on a production schedule of

14 three to five chapters a week at this point to the

15 publisher.

16 Q. When did that schedule commence?

17 A. Oh, about three weeks ago.

18 Q. Okay. How many chapters then have been

19 submitted to the publisher as yet thus far?

20 A. Excuse me. I'd say four weeks ago.

21 We're close to 25. I'd have to -- I don't

22 recall the exact number.

23 Q. How many chapters will the book have?

24 What's the anticipated number?

25 A. Approximately 33.

1 Q. When is it anticipated that the

2 approximately eight additional chapters will be

3 submitted to the publisher?

4 A. Sometime in April. By, I'd say by mid

5 April.

6 Q. Okay. With regard to the eight additional

7 chapters that are yet to be submitted, who are the

8 authors of those chapters?

9 A. There are two hydrology chapters that are,

10 that Bob Johnson is senior author on. There's two

11 chapters authored by Marty Fleming --

12 Q. Would that be --

13 A. -- one on alligator and one -- well, three

14 chapters by Marty Fleming: one on alligator, one on

15 white-tailed deer and one on waiting birds, and three

16 synthesis chapters.

17 Q. Who are the primary authors of the

18 synthesis chapters?

19 A. One is C. S. Holling, H-o-l-l-i-n-g, one is

20 Carl Walters, and one will be myself and John Ogden.

21 Q. Will those three synthesis chapters cover

22 different areas?

23 A. Yes, they, Holling's chapter looks at the

24 entire Everglades system at different scales,

25 different spacial scales starting with the very small

1 scale and going up to a global scale and examines

2 issues involved at each scale.

3 The chapter by John and myself simply

4 inventories and summarizes the restoration, ecosystem

5 restoration implications from each of the other

6 chapters in the book.

7 And Carl Walters' chapter uses a model that

8 he developed to make broad generalizations and

9 evaluations about opportunities for ecological

10 restorations in terms of water policy.

11 Q. The model that you referred to that was

12 developed by -- is it Mr. Walters or Dr. Walters?

13 A. Doctor.

14 Q. Dr. Walters.

15 -- is that a water or a hydrology model?

16 A. Yes.

17 Q. Is that related in any way to the South

18 Florida Water Management model?

19 A. He utilizes the same data base but

20 developed his own model.

21 Q. Okay. Is it related at all to the

22 District's natural system model?

23 A. Same thing.

24 Q. Oh, it's the NSM model?

25 A. It's both. It utilizes -- he has a current

1 model and a natural system model just as the District

2 does and compares the two.

3 Q. By whom is Dr. Walters employed?

4 A. University of British Columbia.

5 Q. Are you familiar at all with the South

6 Florida Water Management model?

7 A. I'm not a modeler, so only generally.

8 Q. Okay. Have you ever used it for any of

9 your studies?

10 A. No.

11 Q. Are you familiar at all with the natural

12 system model, the District's natural system model?

13 A. Generally.

14 Q. And from time to time I may refer to that

15 as the NSM model, and that's --

16 A. Okay.

17 Q. -- typical; is that correct?

18 A. Um-hum.

19 Q. Do you know how the Walters model will

20 differ from the South Florida Water Management model?

21 A. It only differs in the, its scale of

22 resolution. It's a coarser scale model and it's much

23 more user friendly than the South Florida Water

24 Management model, so anyone with the instruction

25 manual sits down for a half a day can learn how to

1 use it and you can make modeling runs very quickly in

2 a matter of hours where it might take weeks with the

3 South Florida Water Management model.

4 Q. Does it differ then from the natural system

5 model in the same fashion?

6 A. Yes.

7 Q. Any other difference between the Walters

8 model and the natural system model?

9 A. Well, they are vastly different in the way

10 that they were put together, but they both show the

11 same thing. They both indicate the same results or

12 simulations.

13 Q. When you say that the Walters model was put

14 together differently than the NSM, natural system

15 model, the Walters model does use the natural system

16 model's data base; is that correct?

17 A. Yes.

18 Q. Uses the same topography?

19 A. Walters put in, put in the, in his version

20 of the natural system model, he did put topography

21 back in where he felt there had been soil loss, but I

22 don't know if it's the same, exactly the same amount

23 that was put in for the natural system model.

24 Q. With regard to historic rainfall, does the

25 Walters model use the same data base as the natural

1 system model?

2 A. Yes.

3 Q. Okay. What about estimated ET values for

4 the historic Everglades? Does the Walters model have

5 the same values as the natural system model?

6 A. They are similar. I don't know if they are

7 identical.

8 Q. Will there be a chapter of the book on the

9 South Florida Water Management model?

10 A. Yes, it's one of the chapters authored by

11 Bob Johnson, as I mentioned, with a number of

12 co-authors who have worked on it over the years.

13 Q. That's one of the two chapters that he has

14 yet to submit to the publisher?

15 A. That's correct.

16 Q. Is there a chapter of the book that deals

17 with the natural system model?

18 A. It's the same chapter. He compares the

19 two.

20 Q. All right. With regard to the chapters of

21 the book that have already been submitted, the

22 approximate 25 chapters, have those chapters already

23 gone through peer review?

24 A. Yes.

25 Q. Just briefly if you could walk me through

1 the peer review process.

2 You are one of the co-editors of the book;

3 is that correct?

4 A. That's correct.

5 Q. How were the peer referees selected for the

6 various chapters of the book?

7 A. We have an Editorial Board for the book

8 that met -- the Editorial Board was the same group of

9 individuals that was the Steering Committee for the

10 symposium that resulted in this book.

11 And after the symposium the Editorial Board

12 met and came up with a list of potential referees for

13 papers in various areas of expertise.

14 John and I took that list and solicited

15 reviews from referees. We attempted to find one

16 referee who had not only expert knowledge in the

17 field but also is familiar with the Everglades and

18 one referee who was an expert in the field but not

19 directly connected with Everglades issues.

20 The papers were submitted to the referees

21 with a form where they could find anything from

22 acceptable to unacceptable and major and minor

23 revision in between.

24 When we received the form and the referee

25 comments back, we submitted that back to the authors

1 for revisions.

2 And as we're submitting the papers to the

3 editor in our final editing, we're examining the

4 manuscripts to assure that the authors have taken the

5 referee comments, suggestions.

6 Q. Was the publisher involved in that referee

7 process as all?

8 A. No.

9 Q. Did the publisher receive copies of the

10 referees' comments?

11 A. No.

12 Q. Were the authors told the names of their

13 referees, peer referees?

14 A. The referees are confidential unless they

15 choose to waive that. In most cases they remained

16 confidential.

17 Q. With regard to the Editorial Board which I

18 believe you stated was the same as the Steering

19 Committee for the Everglades symposium -- first of

20 all, when was the Everglades symposium?

21 A. October 1989.

22 Q. Who are the members of the Editorial Board?

23 A. Myself and John Ogden as co-chairmen,

24 C. S. Holling, Carl Walters, Don DeAngelis, that's

25 D-e-A-n-g-e-l-i-s, Peter White, Bill Robertson, Bill

1 Loftus, Marty Fleming, Tom Bancroft. I'm missing

2 some. There's about 15.

3 Q. Are those the ones that you recall at this

4 point in time?

5 A. That's all that comes to mind right now.

6 Q. Okay.

7 A. There were more, but...

8 Q. With regard to this Editorial Board, were

9 some of the members that you just mentioned more

10 active than others?

11 A. The ones that were local in South Florida

12 would attend more meetings. The ones that were out

13 of state would tend to provide written comments on

14 issues. But I think they were all active in the

15 process.

16 Q. I would assume as co-chairs, you and John

17 Ogden were the most active?

18 A. Not necessarily.

19 Q. Okay. Could you just very quickly go

20 through in the names that you've provided and tell me

21 their affiliation or employment?

22 John Ogden I know is with the Park.

23 C. S. Holling?

24 A. University of Florida.

25 Q. Carl Walters?

1 A. University of British Columbia.

2 Q. Don DeAngelis?

3 A. Oak Ridge National Laboratory.

4 Q. Peter White?

5 A. University of North Carolina.

6 Q. Bill Robertson?

7 A. Everglades National Park.

8 One additional board member was Tom

9 MacVicar, Editorial Board member.

10 Q. Bill Loftus?

11 A. Everglades National Park.

12 Q. Marty Fleming?

13 A. Everglades National Park.

14 Q. Is he still with the Park?

15 A. Yes.

16 Q. Tom Bancroft?

17 A. National Audubon Society.

18 Q. Tom MacVicar?

19 A. Water Management.

20 Q. With regard to the Everglades symposium,

21 how did that particular symposium come about? Is

22 that a district-sponsored event?

23 A. It was co-sponsored by the District and

24 Everglades National Park.

25 Q. Approximately how many papers were

1 presented at the symposium?

2 A. I'd say about 40.

3 Q. And how were the individuals who presented

4 the paper selected?

5 A. We invited people who were actively doing

6 research in the Everglades system and asked them to

7 work as groups in integrating their papers and

8 developing concepts concerning the Everglades.

9 Q. Was Bob Johnson on the Editorial Board?

10 A. No.

11 Q. Okay. Was there a list of invitees? And

12 by invitees, I'm referring to individuals invited to

13 produce or participate in the production of papers

14 for the Everglades symposium.

15 A. We have the symposium program which has the

16 paper titles and authors. There were some other

17 authors that were invited that declined.

18 Q. With regard to the individuals that were

19 offered the opportunity to participate and declined,

20 do you recall any particular individuals?

21 A. We invited Jim Kushlan to prepare a paper,

22 and he declined. And his name slips my mind, but we

23 invited an Everglades kite -- oh, I know, Steve

24 Beissenger.

25 Q. Could you spell that?

1 A. I believe it's B-e-i-s-s-e-n-g-e-r.

2 Invited him to work with another kite

3 expert in putting together a paper, and he declined

4 unless he could have his own paper.

5 Q. Who was who was the other kite expert?

6 A. Robert Bennetts.

7 Q. Did Mr. Bennetts ultimately produce a

8 paper?

9 A. Dr. Bennetts.

10 Q. Dr. Bennetts. Excuse me.

11 A. Yes.

12 Q. And Steve Beissenger, what is his

13 affiliation or who was he employed by?

14 A. He's with a university of New York. I

15 forget which university. Cornell comes to mind, but

16 I'm not sure.

17 Q. And Mr. Kushlan -- or is it Dr. Kushlan?

18 A. Dr. Kushlan.

19 Q. -- is affiliated with?

20 A. It's either Mississippi State or University

21 of Mississippi. Again, I've lost track of which one.

22 Q. Any other authors or individuals that you

23 can recall who were invited to participate in the

24 symposium that declined?

25 A. Not that I can recall at this time.

1 Q. Okay. Is there any type of document that

2 you would have that would have those authors or all

3 of the individuals that were invited to participate

4 in the symposium?

5 A. I don't believe I have that anymore.

6 Q. Okay.

7 A. I cleared my files after the symposium.

8 Q. Did you retain any type of letters or

9 communications with individuals inviting them to

10 participate in the symposium?

11 A. I believe I have some. I don't have them

12 all.

13 Q. Have you retained the responses to your

14 letters of invitation?

15 A. Some, but not all.

16 Q. I believe you stated that approximately 40

17 papers were presented at the symposium, and I note

18 that you stated approximately 33 chapters will be in

19 the book, three of those are, you referred to as

20 synthesis chapters.

21 Were there synthesis papers of an

22 equivalent type as the three synthesis chapters

23 presented at the symposium?

24 A. Yes.

25 Q. Would that be in the same three areas?

1 A. It's not exact. We regrouped a number of

2 papers after the symposium. But it was a general,

3 the same general organization. After each section of

4 the symposium there was a synthesis chapter. At the

5 very end there were two or three -- synthesis talk,

6 and at the very end there were two or three

7 overviewing the entire symposium.

8 Q. Did Dr. Walters do an overview of the

9 system at the symposium?

10 A. Yes.

11 Q. And did -- is it Dr. Holling?

12 A. Yes.

13 Q. Did Dr. Holling look at the entire

14 Everglades and --

15 A. Yes.

16 Q. -- again similar to what he's doing for a

17 synthesis chapter?

18 A. Yes.

19 Q. Are there specifically seven or so papers

20 that were presented that have not been included as

21 chapters to the book?

22 A. Yes.

23 Q. Do you recall why?

24 A. We had a problem with one symposium session

25 on planning I believe it was the third day of the

1 four days of the symposium. The organization of that

2 section by the, or that session by the session

3 chairman was not as good as the other sessions and

4 the papers were, did not address the questions that

5 we were trying to address at the symposium and were

6 generally weak.

7 Q. Would that cover all of the approximate

8 seven papers that were presented that are not

9 included in the book?

10 A. We had one paper on the influence of the

11 Everglades on Florida Bay where the author because of

12 other commitments couldn't write the paper.

13 Q. Who was that author?

14 A. Tom Smith, Dr. Tom Smith.

15 Q. Okay. And does that cover all the

16 approximately seven papers that were presented at the

17 symposium that have not been included as chapters to

18 the book?

19 A. As far as I can remember. It was four

20 years ago. You have to excuse my memory.

21 Q. That's quite all right and understandable.

22 You had mentioned a few moments ago that in

23 relation to your comments on the planning section

24 that they had not quite addressed the, I believe you

25 stated, purposes of the symposium.

1 A. Um-hum.

2 Q. What were those purposes, if you could

3 describe them?

4 A. The central theme of the symposium was

5 examining patterns of the physical driving forces,

6 vegetation and wildlife and how they interact to

7 develop guidelines for ecological restoration in the

8 Everglades.

9 The planning section was from the beginning

10 outside the central theme, but we had hoped to look

11 at the very -- at the various problems and

12 opportunities to accomplish the restoration

13 guidelines that the other sessions were coming up

14 with from the standpoint of urban issues,

15 agricultural issues, water quality issues, water

16 management issues, population issues.

17 Q. What you just referred to as the various

18 issues, was that supposed to be included in the

19 planning section?

20 A. Yes.

21 Q. Okay. Who was primarily responsible for

22 the planning section?

23 A. Dr. Larry Harris.

24 Q. What is Dr. Harris' affiliation?

25 A. University of Florida.

1 Q. By the way, did the Army Corps of Engineers

2 participate at all in the symposium or any

3 representatives from it?

4 A. They attended. I don't believe they

5 authoreBRITISH papers because they didn't meet our

6 criteria of actively doing research in the system.

7 Q. Going back for a moment to the purpose of

8 the symposium which, just to summarize what you had

9 stated, was the examination of patterns of vegetation

10 and wildlife ecosystems to produce guidelines for

11 ecological restoration, were there any additional

12 purposes to the symposium?

13 A. We had, we attempted to develop these

14 themes in a, in a way that would be understandable to

15 decision-makers, not just the scientific community.

16 Q. Okay. Was that more of a format purpose as

17 opposed to what you had previously described as a

18 purpose of the symposium?

19 A. No, I'd say it was part of the central

20 purpose.

21 Q. Okay. And you referred to I believe it was

22 the decision-makers related to the system.

23 Who would those be? Who was that target

24 group?

25 A. Oh, everything from Water Management

1 District and National Park Service management to

2 local planners.

3 Q. When you say local planners, are you

4 getting down to the county and city level?

5 A. Yes. We were simply trying to produce

6 something that was understandable by people not in

7 the scientific field.

8 Q. Okay. With regard to this target group of

9 decision-makers, would that include the Army Corps of

10 Engineers?

11 A. Yes.

12 Q. Did it include any private industry

13 leaders?

14 A. Did what?

15 Q. This target group of decision-makers.

16 A. Certainly. It would include anyone who's

17 not a, specifically a scientist working in the field.

18 Q. Okay. Who was invited to the symposium?

19 A. There was no invitation list. We

20 distributed a brochure on the symposium and a number

21 of functions before the, the year before the

22 symposium. It was open to everybody.

23 Q. Okay. Did you in particular invite this

24 target group of decision-makers you were referring

25 to?

1 A. As far as I'm aware, they were all aware of

2 it.

3 As I say, we didn't invite anybody. We had

4 about 400 people show up, but we didn't invite

5 anybody. We just passed out notices about it.

6 Q. In your opinion did you have a successful

7 turnout of the target decision-makers group?

8 A. It seemed that we did.

9 Q. Okay. Did Dr. Harris or the planning

10 section propose a particular planning process to

11 address the Everglades?

12 A. No.

13 Q. By the way, any time you want to take a

14 break also, you just let us know.

15 A. Okay.

16 Q. With regard to the planning section, you'd

17 referred to the papers as weak.

18 Is that a symptom of the fact that it was

19 difficult for that area to address the primary

20 purpose of the symposium or was it just literally the

21 work product presented by those authors?

22 A. I think it was Dr. Harris, because he had

23 so many other commitments, didn't give the attention

24 to working with his authors in developing the topic

25 for his session as much as the other session chairmen

1 did.

2 Q. Who were the authors of the planning

3 section papers?

4 A. There was a paper on urban concerns by

5 Douglas Yoder. There was a -- this is four years ago

6 and I'm confused on which sessions some of the papers

7 were in.

8 There was an agricultural paper by George

9 Snyder. There was a water quality paper by Curtis

10 Richardson. Larry Harris attempted to do a synthesis

11 of planning concerns. There was a paper on the

12 relationship of Everglades water issues to Florida

13 Bay.

14 I'm listing papers with planning topics.

15 I'm not sure they were all in the planning session.

16 That was a long time ago, as I said.

17 That's what I can recall at this time.

18 Q. The water quality paper by Dr. Richardson,

19 was that in the planning section, to the best of your

20 recollection?

21 A. Yes.

22 Q. And did his paper fall into the category of

23 papers that were either weak or were not of the same

24 quality as the other papers presented at the

25 symposium?

1 A. Yes.

2 Q. You'd mentioned that Dr. Harris was the

3 organizer, is that the term, for the planning

4 section?

5 A. Yes.

6 Q. Who were the other organizers for the

7 various sections?

8 A. I organized the first day on physical

9 driving forces in the system. John Ogden organized

10 the second day on -- excuse me. I'm sorry. Don

11 DeAngelis organized the first day on physical driving

12 forces. I organized the second day on vegetation.

13 John Ogden organized the third day on wildlife, as I

14 recall. Larry Harris organized the session on

15 planning. And there was really no organizer for the

16 final half day of synthesis papers. It was just

17 synthesis authors.

18 Q. There were essentially four sections: the

19 physical driving forces, vegetation and wildlife?

20 A. Planning and the synthesis.

21 Q. I'm sorry. Planning.

22 A. So five.

23 Q. Five.

24 With regard to the section on vegetation,

25 were all papers that were presented at the symposium

1 going to be included as chapters in the book?

2 A. Yes, but with different authorship on at

3 least one.

4 Q. With regard to the vegetation section, what

5 were the papers to the best of your recollection that

6 were presented at the symposium along with the

7 authors of those papers?

8 A. There was a paper on the determinants of

9 vegetation community composition. There was a paper

10 on vegetation change at the landscape level, large

11 scale level. There was paper on sensitivity of

12 vegetation to phosphorus inputs. There was a paper

13 on spread of melaleuca. There was a synthesis paper

14 by Peter White.

15 As I recall, those were the five vegetation

16 papers.

17 Q. Do you recall whether or not any of the

18 planning papers from the planning section dealt with

19 planning impacts on vegetation?

20 A. Curtis Richardson's paper touched on that,

21 but that wasn't the main topic of his paper.

22 Q. DiBRITISH of the five papers you have

23 referenced in relation to the vegetation section deal

24 with in any aspect the planning impacts upon

25 vegetation changes?

1 A. Well --

2 MR. NETTLETON: Object to form.

3 THE WITNESS: They all did in one way or

4 another because every paper was looking at

5 management implications and changes in, the

6 results of changes in the system as a result of

7 management and planning. So every paper in the

8 symposium did in one way or another.

9 BY MR. KOBELINSKI:

10 Q. Okay. If we could just briefly run through

11 the five papers you've mentioned and if you could

12 provide me with the author or authors of the paper.

13 The first one mentioned was determinants of

14 vegetative community composition.

15 A. Lance Gunderson.

16 Q. Was he the sole author of that paper?

17 A. Yes.

18 Q. Vegetation change on large scale?

19 A. There were five authors: Myself, Lance

20 Gunderson, Winnie Park, John Richardson and Jennifer

21 Mattson.

22 Q. Sensitivity of vegetation to phosphorus

23 inputs?

24 A. That was myself.

25 Q. Any co-authors?

1 A. No.

2 Q. The study of melaleuca?

3 A. Ronald Hoffstetter.

4 Q. And I believe you had stated that the

5 synthesis paper was done by Peter White; is that

6 correct?

7 A. Yes.

8 Q. Okay. With regard to the wildlife section,

9 if you could go through to the best of your

10 recollection the papers that were presented in that

11 section.

12 A. There was a paper on the ecology of small

13 fish populations, a paper on snail kite, on the

14 white-tailed deer, on the Florida panther and about

15 five waiting bird papers on various aspects of

16 feeding and nesting and population trends of waiting

17 birds.

18 Q. What about alligators?

19 A. And alligators.

20 Q. Was that a separate paper?

21 A. Yes.

22 I'm sure I'm missing some. Again, I don't

23 have the list in front of me and this was four years

24 ago.

25 Q. That's fine.

1 If you could, as you did for vegetation, go

2 through and provide to the best of your recollection

3 the authors.

4 The snail kite?

5 A. Robert Bennetts.

6 Q. The ecology of small fish?

7 A. Bill Loftus, L-o-f-t-u-s.

8 Q. White-tailed deer?

9 A. Marty Fleming.

10 I'm giving senior authors. Some of these

11 papers have several authors.

12 Q. Okay. Did Mr. Fleming also do the

13 alligator paper?

14 A. Yes.

15 Q. Florida panther?

16 A. Sonny Bass.

17 Q. And I believe the five waiting birds

18 Mr. Ogden has discussed in his deposition.

19 MR. KOBELINSKI: Why don't we take just a

20 quick break.

21 (Thereupon, a recess was taken from

22 10:00 a.m., until 10:10 a.m.)

23 BY MR. KOBELINSKI:

24 Q. Mr. Davis, with regard to the Everglades

25 symposium and the guidelines or the production of

1 guidelines for ecological restoration, diBRITISH

2 papers in the symposium that were presented at the

3 symposium deal with an attempt to characterize or

4 describe the natural Everglades prior to any

5 man-induced impacts on the system?

6 A. The paper on the hydrology model does that

7 from a hydrologic standpoint, the natural system

8 model.

9 Q. Would --

10 A. John Ogden's waiting bird paper looks at

11 estimates of past waiting bird populations.

12 My landscape paper looks at the extent of

13 the wetlands system before drainage and development

14 began and how it may have been divided into major

15 landscape types.

16 My paper on vegetation sensitivity to

17 phosphorus estimates very generally what phosphorus

18 inputs to the system may have been before

19 development.

20 That's all I can think of. There may have

21 been more, but...

22 Q. Okay. With regard to Dr. Walters, did his

23 paper also address the natural system hydrology?

24 A. Yes, excuse me.

25 Q. And who did the paper on the District's NSM

1 model?

2 A. At that time Tom MacVicar was senior

3 author.

4 The authorship at this point is up in the

5 air. They haven't -- there's no, there's no conflict

6 about it, but it just hasn't been decided yet whether

7 it'll be Bob Johnson or Tom MacViar.

8 Q. Have you retained a copy of the 25,

9 approximately 25 chapters that have been submitted to

10 the publisher?

11 A. Yes.

12 Q. Do you also have a copy of the peer reviews

13 on the 25 chapters that have already been submitted?

14 A. Yes.

15 Q. Would the peer review copies that you have,

16 would you be able to identify the peer referee?

17 A. Yes.

18 Q. With regard to the seven or eight papers

19 that have yet to be submitted, do you already have

20 the peer reviews on those papers?

21 A. We do have peer reviews on the two

22 hydrology papers from more than a year ago. We have

23 peer reviews on Marty Fleming's papers. And for

24 synthesis papers, the Editorial Board is acting as

25 reviewer, and they are reviewing two of those papers

1 at this time. Haven't received all the comments

2 back. And there's two yet to be submitted.

3 Q. Are these papers and peer reviews, are

4 these District documents?

5 A. No.

6 Q. Are they your private papers?

7 A. Yes.

8 Q. Looking back at your resume' for a moment,

9 as the initial entry for August of 1992 to present it

10 states, "Senior," which I believe you've corrected to

11 supervising professional, "ecologist, Planning

12 Department, South Florida Water Management District.

13 My primary responsibility for six months is senior

14 editor of the Everglades book as a basis of

15 understanding our ecosystem restoration and

16 management."

17 Is your work as editor part of your

18 employment responsibilities at the District?

19 A. I was assigned this project for six months,

20 yes.

21 Q. All right. Where do you retain the copies

22 of the prior chapters that had been submitted and the

23 peer reviews of those chapters physically?

24 A. I believe they are at my home.

25 Q. Okay. Are you aware who else has copies of

1 those chapters and peer reviews?

2 A. John Ogden has some of them.

3 Q. Okay. To your knowledge, are you the only

4 individual that has all of them?

5 A. Yes.

6 Q. Do you consider those chapters and peer

7 reviews of those chapters confidential in any

8 fashion?

9 MR. NETTLETON: Object to the form.

10 Compound question.

11 You can answer.

12 THE WITNESS: Yes.

13 BY MR. KOBELINSKI:

14 Q. Do you consider the copies of the chapters

15 that have been submitted to the publisher as

16 confidential?

17 A. We've already submitted those in the

18 production process for the litigation. But other

19 than that, they are confidential. We don't have the

20 authorization of authors to distribute those before

21 publication.

22 Q. Okay.

23 A. Most of the authors are not employees of

24 either the Park or the District.

25 Q. And when you say you've produced those in

1 the litigation, I believe you're talking about these

2 administrative proceedings?

3 A. I think so.

4 Q. Okay. And are you referring to all 33

5 chapters that have been submitted in final form to

6 the publisher?

7 A. Whatever state they were in at the time the

8 production was made.

9 Q. And are you referring to the original

10 production made last year?

11 A. I think so.

12 Q. Okay. I believe you had stated that you

13 had started submitting the final papers or chapters

14 to the publisher approximately three or four weeks

15 ago; is that correct?

16 A. Yes.

17 Q. Do you recall what state the chapters of

18 the book were at the time of the District's

19 production in the administrative proceedings?

20 A. It varied from chapter to chapter. Some

21 were, some have changed very little. Some have had

22 major revision after, after the referee reviews.

23 Just -- and then there's a final editing that I go

24 through just the day or so before they go to the

25 publisher. So it would be in all states.

1 A year ago they were mostly nonrevised.

2 Q. When did the papers start going through the

3 peer review process?

4 A. Oh, they started maybe two years ago. It's

5 taken a long time for some of them. It's hard to get

6 reviews back.

7 Q. With regard to the production of documents

8 that was made by the District that you referred to,

9 were the peer reviews for all the various chapters

10 that you had at the time produced?

11 A. No.

12 Q. Okay. Do you consider peer reviews

13 confidential?

14 A. Yes, because they would identify the

15 reviewers which I consider confidential.

16 Q. Okay. Are the review comments themselves

17 confidential or is it just the confidentiality of the

18 identity of the reviewer?

19 A. Well, we don't have authorization of the

20 reviewers to distribute their comments. And that's,

21 to my knowledge that's never done in the scientific

22 field in journals or anything. Reviewers and their

23 comments remain confidential. They only go to the

24 authors and editors. That's general scientific

25 practice.

1 Q. What's the purpose of not disclosing the

2 name of a peer referee to the author?

3 A. It allows the referee to be as rigorous as

4 he can be without any possible repercussions from the

5 author.

6 Science people in the same field often know

7 each other, work together, have to continue working

8 together.

9 It allows people to comment on papers of

10 people who they collaborate with without destroying

11 or damaging their professional relationship.

12 Q. Okay. Would disclosure of the comments

13 without disclosure of the name of the peer referee

14 have any impact upon that process?

15 A. I don't know.

16 Q. Okay. Are you generally familiar with the

17 witnesses who are listed by the District in this

18 administrative proceeding?

19 A. I haven't seen the list.

20 Q. Okay. Are you familiar with the witnesses

21 that are listed by the United States in this

22 proceeding?

23 A. I haven't seen any, any expert witness

24 list.

25 Q. Okay. Are you aware whether or not any of

1 the peer referees for the papers or the chapters in

2 the book that you're putting together are also

3 witnesses or expert witnesses?

4 A. Since I haven't seen the list, no.

5 Q. Are you familiar with all the peer referees

6 for the various papers?

7 A. What do you mean?

8 Q. In other words, if I brought a list of the

9 experts that have been listed by the parties and went

10 through that list, would you be able to identify

11 whether they are a referee or not?

12 A. I don't know the names of all the referees

13 or I don't have them in my memory. I have some.

14 Q. Okay. Who are the referees that you are

15 currently aware?

16 MR. NETTLETON: I'll object and instruct

17 him he does not need to answer that question as

18 he's already testified that's considered

19 confidential information.

20 BY MR. KOBELINSKI:

21 Q. Do you consider the pool of referees used

22 without identifying what papers were reviewed as

23 confidential information?

24 A. Yes.

25 Q. Do you recall whether or not any of the

1 referees were employees of a federal department,

2 agency or otherwise affiliated with the federal

3 government?

4 MR. NETTLETON: I'm going to object to this

5 line of questioning in that your questioning is

6 obviously trying to narrow the pool, if you

7 will, of who the referees are and he's already

8 testified that their identity is considered

9 confidential, and on that grounds I'll instruct

10 him that he does not need to answer.

11 MR. KOBELINSKI: Your instruction not to

12 answer as to whether or not any of them are

13 federal employees which is narrowing it down to

14 probably several million people?

15 MR. NETTLETON: Well, he can answer if he

16 feels it will not affect the confidentiality.

17 I'll leave it at that.

18 THE WITNESS: There were some referees who

19 worked for the government, yes.

20 BY MR. KOBELINSKI:

21 Q. Were there any referees that worked for the

22 state, Florida state government or any of its

23 agencies, districts or departments?

24 A. Yes.

25 Q. Will the referees be listed in the

1 publication?

2 A. We're still discussing that with the

3 publisher as to whether we should do that or not.

4 Q. Is that a normal practice?

5 A. I wouldn't say it's normal. It's sometimes

6 done and sometimes not done.

7 If we were to do it, I'd want to get the

8 individual permission of all referees before we did

9 it.

10 Q. Do you know who the referee was for your

11 two vegetative papers?

12 A. Yes.

13 Q. Okay. And who were those referees?

14 MR. NETTLETON: I'll object again and

15 instruct him he need not answer unless he feels

16 that that would not be revealing the

17 confidentiality.

18 THE WITNESS: I don't have a problem with

19 that 'cause they both let me know who they were

20 at the time.

21 For the phosphorus paper, Dr. James Grace

22 and Dr. Kerry Steward.

23 For the landscape paper, Dr. Taylor

24 Alexander and Dr. Dan Austin.

25 I think those were the ones that submitted

1 comments back.

2 BY MR. KOBELINSKI:

3 Q. Okay. Don't scientific journals typically

4 list referees each year?

5 A. Most of them do -- or some do, but it's a

6 very long list that would be very difficult for an

7 author to pick out the referee that reviewed his

8 paper.

9 In this case because we're only dealing

10 with 35 papers, it would be, it would be much easier

11 for an author knowing the people who had expertise in

12 his field to, to figure out who the referee was.

13 That's why if we do publish a list, it would only be

14 with the referees' permission.

15 Q. Approximately how many referees were used?

16 A. Well, two to three a paper, at least two

17 and usually three per paper, often three per paper.

18 So it would be about -- there were some that refereed

19 more than one paper. So probably 60, 70. I don't

20 know for sure.

21 Q. Have you produced the referees' comments on

22 your two papers?

23 A. No.

24 Q. Do you still consider those confidential?

25 A. I don't consider the referees' names

1 confidential because I've told you those. But as far

2 as their comments, I don't believe I have the

3 authority from them to distribute their comments

4 without their permission.

5 Q. Did you seek or ask their permission as to

6 whether or not you could disclose their comments?

7 A. No.

8 Q. Did you seek permission from the authors of

9 the papers prior to your producing the drafts that

10 were produced by the District in the original

11 production?

12 A. We discussed it and voted on it at an

13 Editorial Board meeting, and based on that -- the

14 Editorial Board has contact with virtually all the

15 authors on a working basis -- and went back and

16 verbally notified them what we were doing before we

17 did the distribution, so...

18 MR. KOBELINSKI: Could you read back that

19 last portion of that? I didn't catch that.

20 (Thereupon, a portion of the record

21 was read by the reporter.)

22 BY MR. KOBELINSKI:

23 Q. Were all the authors then contacted prior

24 to the distribution?

25 A. I believe so.

1 Q. Would this book be considered a research

2 journal?

3 A. No.

4 Q. Would it be considered a secondary source?

5 A. I don't know what that means.

6 Q. Okay. Why wouldn't it be considered a

7 research journal?

8 A. Well, a journal's a periodical that comes

9 out from year to year and a number of issues per

10 year.

11 This is a one-, a one-time project.

12 Q. Are the chapters overall a discussion or

13 summary of research that was undertaken for the

14 purpose of the book?

15 A. The research was not undertaken for the

16 purpose of the book.

17 Q. Are the papers essentially dealing with,

18 you know, a report as to research or are they more in

19 the fashion of, for instance, a literature search?

20 A. They are both. Each paper summarizes

21 existing information in its field and then adds new

22 unpublished information.

23 Q. That the authors themselves have tested and

24 reviewed?

25 A. Yes.

1 MR. KOBELINSKI: Paul, are you claiming the

2 peer review comments on Mr. Davis' phosphorus

3 paper and landscape paper as confidential?

4 MR. NETTLETON: Well, if he says they are

5 not confidential, then they are not. I'm not

6 claiming --

7 MR. KOBELINSKI: They haven't been produced

8 to us.

9 MR. NETTLETON: Well, if they are called

10 for in the requests -- I don't have the notice

11 in front of me. If you want to point out where

12 they would fall under and if they are called for

13 in that, if you'd just send me a note to remind

14 me after the deposition, we'll produce them.

15 I believe he testified he did not consider

16 them confidential.

17 Is that right?

18 THE WITNESS: I said the names were, I

19 didn't feel the names were confidential --

20 MR. NETTLETON: But the comments might be?

21 THE WITNESS: -- but I would want to

22 contact the reviewers and let them know I was

23 using their comments for something other than

24 what they intended them to be used for.

25 MR. NETTLETON: All right. From that then,

1 my understanding is he does still consider them

2 confidential, so we would object to their

3 production on that ground absent permission from

4 the reviewers themselves.

5 MR. KOBELINSKI: And what would be the

6 legal basis for your claim of confidentiality or

7 privilege other than the witness' belief that

8 they are confidential?

9 MR. NETTLETON: Academic privilege as well

10 as any potentially -- I don't know if there's

11 copyrights involved or anything if these are

12 specific comments of specific authors or other

13 reviewers who are looking at it who consider

14 their comments their own work product who would

15 not want them released.

16 The same objections that we've heard from

17 some of your people.

18 BY MR. KOBELINSKI:

19 Q. Is this an academic -- are these chapters

20 put out by universities?

21 A. Some of the contributors, many of the

22 contributors are with universities, yes.

23 Q. Are they being put out as a product by the

24 university?

25 A. No.

1 Q. Are these rather then just personal

2 projects or papers presented by individuals, some of

3 which happen to be affiliated with universities?

4 A. Well, that's the way most university

5 publications -- publications by university faculty,

6 they submit them to journals or symposia.

7 I don't understand your question.

8 Q. Were any of the papers funded through the

9 university or by the university, to your knowledge?

10 A. No.

11 Q. With regard to the documents that were

12 produced related to your research, you have produced

13 peer review comments on some of your papers that you

14 have done in the past.

15 Were those confidential?

16 MR. NETTLETON: I'd object to the form.

17 THE WITNESS: I don't know in that case

18 'cause I don't know the journal policies toward,

19 of individual journals toward confidentiality of

20 reviewers. I know their names aren't given out.

21 In fact, I don't even have the names of the

22 reviewers of those papers.

23 In reality, that was, you know, when they

24 came and took file drawer after file drawer, I

25 didn't even know they were in there, so...

1 BY MR. KOBELINSKI:

2 Q. Did you contact any of the peer reviewers

3 or the journal to seek any type of permission to

4 produce those peer comments?

5 MR. NETTLETON: Object to the form.

6 THE WITNESS: No. As I said, I wasn't even

7 aware they were in the file being produced.

8 BY MR. KOBELINSKI:

9 Q. Do you still consider them confidential?

10 MR. NETTLETON: Object to the form.

11 THE WITNESS: I don't know. As I said, it

12 would depend on the policy of the particular

13 journal, which I don't know.

14 BY MR. KOBELINSKI:

15 Q. When you say it's determined by the policy

16 of the journal, is the policy of confidentiality

17 you're referring to with regard to the chapters of

18 this Everglades book being specified by the St. Lucie

19 Press?

20 A. No.

21 Q. Okay. Who is setting up this policy of

22 confidentiality?

23 A. The Editorial Board and John Ogden and

24 myself. In our letters to referees requesting their

25 comments we specified they would be kept

1 confidential.

2 Q. Do you know whether or not Mark Maffei is a

3 peer reviewer for any of the papers?

4 A. I don't believe he is, not that I can

5 recall.

6 Q. Okay.

7 A. Again, I don't remember all, all the

8 reviewers, not that -- I can't think of a paper that

9 he reviewed.

10 Q. Mr. Davis, do you recall if you've ever

11 been qualified as an expert witness before?

12 MR. NETTLETON: Object to the form of the

13 question.

14 THE WITNESS: I don't think so.

15 BY MR. KOBELINSKI:

16 Q. Okay. You'd stated you'd only been deposed

17 once previously.

18 Have you ever testified other than at a

19 deposition?

20 A. No.

21 Q. Have you ever testified at all in any type

22 of administrative hearing?

23 A. No.

24 Q. Mr. Davis, the District specified as the

25 subject matter for your expected expert testimony

1 historical trends in distribution of cattail in

2 WCA's, response of cattail to nutrient enrichment,

3 and shifts in composition of cattail and sawgrass

4 communities.

5 To the best of your knowledge is that going

6 to be the subject matter of your expert testimony?

7 A. I guess so.

8 Q. Have you ever discussed with anyone at the

9 District what your expert testimony will be?

10 A. I've been told that they listed those three

11 areas.

12 Q. Do you know if there are any additional

13 areas you'll be providing expert testimony on?

14 A. I don't know.

15 Q. Have they discussed with you any additional

16 areas other than those three that we just mentioned?

17 MR. NETTLETON: Object to the form.

18 THE WITNESS: We've discussed my general

19 involvement in all sort of Everglades issues,

20 but no one's told me that I've been listed to

21 testify in areas other than the three that you

22 mentioned.

23 MR. KOBELINSKI: Can we take a five-minute

24 break?

25 THE WITNESS: Sure.

1 (Thereupon, a recess was taken from

2 10:40 a.m., until 10:45 a.m.)

3 BY MR. KOBELINSKI:

4 Q. Mr. Davis, going back for a moment, who

5 made the decision not to include the Richardson paper

6 in the final book?

7 A. All the referees for that paper indicated

8 that his conclusions weren't supported by his data,

9 and on that basis I as editor, I wrote the response

10 saying, "This paper was not accepted."

11 Q. Was he initially then invited to submit a

12 paper as a chapter for the book?

13 A. Yes.

14 Q. And at what point was it determined that

15 his paper would not be included as a chapter?

16 A. After referee review.

17 Q. Approximately what time?

18 A. Gee, I don't remember. Sometime at least a

19 year ago.

20 Q. Sometime during 1992?

21 A. I'm not really sure. '91, '92.

22 Q. Who were the peer referees for the

23 Richardson paper?

24 A. I view that as confidential.

25 Q. Okay. Were they disclosed to Curtis

1 Richardson?

2 A. No.

3 Q. Okay. Were the peer comments disclosed to

4 Dr. Richardson?

5 A. Yes.

6 Q. Did you discuss the peer comments with

7 Dr. Richardson?

8 A. Only in the letter that I sent him.

9 Q. What results of Dr. Richardson's paper were

10 not supported by data?

11 A. He drew conclusions on water quality in the

12 conservation areas based on -- again, this is a

13 couple years ago -- as I recall, only one or two

14 sample dates which doesn't give you any indication of

15 water quality in the conservation areas.

16 There's a lot of variability. You have to

17 sample for long time periods to get an indication of

18 water quality.

19 He attempted to run a transect from the top

20 of Conservation Area 1 down to the bottom of

21 Conservation Area 3 in terms of looking at gradients

22 of water quality without accounting for inputs along

23 the way from various pump stations.

24 His soil data was based on only one

25 sampling date which again doesn't take into account

1 temporal variability or variability over time.

2 I'm just remembering from a year or so ago.

3 I haven't reviewed this in a long time.

4 Then I had one problem in that when we had,

5 in addition to the reviewers, when we'd asked Curt to

6 submit a paper both at the symposium and for the

7 volume, we'd asked him to review, specifically to

8 review the technology for nutrient removal systems

9 and to comment on their applicability or

10 nonapplicability to the Everglades problem, and he

11 didn't do that at all. He didn't even address that.

12 And so -- and we did this with everyone.

13 We asked, everyone we invited to participate, we

14 asked them to write on a topic.

15 Some of the people who did not participate

16 did so because they didn't want to write on that

17 topic or -- but Curt participated but didn't write on

18 the topic we asked him to.

19 Q. After the symposium was he invited to

20 present a paper for possible inclusion as a chapter

21 in the book?

22 A. Yes, that's what we've been talking about

23 in terms of the referee process.

24 Q. At that time did you have a discussion with

25 him and notify him that his presentation at the

1 symposium did not cover the areas that would be

2 required to be covered in his chapter of the book?

3 A. I had a verbal conversation with Curt

4 saying that we needed him to focus his paper on what

5 we felt we needed in the book. I felt he was very

6 qualified to do that. And he said that he would, but

7 then he didn't.

8 But even so, we sent his paper out for peer

9 review at that point, and the reviewers rejected it

10 based on the paper that he submitted, not on what I

11 wanted.

12 Q. Were any of the reviewers of

13 Dr. Richardson's papers ever government or state

14 employees as we've described before?

15 A. I feel because of the confidentiality of,

16 the request of the reviewers in this case to remain

17 confidential, that I would view, I would view that as

18 confidential.

19 Q. The fact that they are an employee of the

20 government?

21 MR. NETTLETON: Object to the form.

22 THE WITNESS: Or not.

23 BY MR. KOBELINSKI:

24 Q. Without disclosing names, you don't feel

25 comfortable identifying whether any of the peer

1 reviewers were an employee of the federal government.

2 A. I don't feel comfortable with that in this

3 case because I know for certain that the reviewers

4 asked to remain confidential.

5 Q. Who selected the reviewers for the

6 Richardson paper?

7 A. The same process we used for other papers.

8 We had an Editorial Board meeting shortly after the

9 symposium. We listed a number of reviewers for all

10 the various possible subject matters in the

11 symposium, and the names that we used were the names

12 that came from that meeting.

13 Q. With regard to Dr. Richardson's paper, who

14 made the determination of who from that list would

15 provide the review?

16 A. There were only a couple on that list

17 that -- I mean, we went, at the Editorial Board

18 meeting we went down the list of papers and suggested

19 reviewers for papers, and so there were only a couple

20 that were appropriate for his paper from that list.

21 Q. Did Curtis Richardson provide any peer

22 reviews for any of the chapters of the book?

23 A. I don't believe so.

24 Q. Okay. Was Louis Ajamil a peer review

25 referee for -- excuse me, a peer referee for any of

1 the chapters in the book?

2 A. I think that would breach the

3 confidentiality I feel I have to have towards

4 reviewers.

5 Q. Let me do this. I'm going to list for you

6 all of the witnesses that have been listed by the

7 District. I'll read them out to you at the end of

8 which I'm going to go ahead and ask whether any of

9 them, without identifying who of the approximate 43

10 witnesses, whether any of them were peer referees,

11 all right?

12 MR. NETTLETON: I don't know if we can

13 speed this process along, since we're going to

14 object and he's going to claim it's

15 confidential, if you just want to identify the

16 witness list and the record will be supported by

17 it at this point.

18 BY MR. KOBELINSKI:

19 Q. Would you have a problem answering the

20 question whether any of these, and, again, not with

21 answering specifically as to whether one or the other

22 or more than one, would you have a problem with

23 testifying as to whether any of these were peer

24 referees?

25 A. I need to think about that for a minute.

1 Can I take a break?

2 Q. Sure.

3 (Thereupon, a recess was taken from

4 10:55 a.m., until 10:56 a.m.)

5 THE WITNESS: What I suggest is that if you

6 read me the list and I don't feel that it's

7 breaching a confidentiality, I'll be happy to

8 answer your question.

9 BY MR. KOBELINSKI:

10 Q. All right. These are witnesses listed by

11 the South Florida Water Management District on

12 October 26th, 1992. I will not even differentiate

13 between fact or expert witnesses for you.

14 Louis Ajamil, Ronald Bearzotti, Robert

15 Brown, Anthony Federico, Archie Grant, Guy Germain,

16 Gary Goforth, J. B. Jackson, Zan Kugler, Alexander

17 Perez, Peter Rhoads, Paul Whalen, Wossenu Abtew,

18 Nicholas Aumen, Arthur Benke, Adelbert Bottcher,

19 Steve Davis, Bill Dendy, Eric Flaig, Thomas Fontaine,

20 Zack Fuller, Donald Gatz, Wendell Gilliam, Herbert

21 Grimshaw, John Jensen, Grace Johns, Lawrence Keith,

22 Nagendra Khanal, Marguerite Koch, Joseph Koebel,

23 Thomas MacVicar, Irving Mendelssohn, Galen Miller,

24 Ronald Mireau, Jayantha Obeysekera, K. R. Reddy,

25 Douglas Robson, Morris Rosen, George Shih, Dave

1 Swift, Jose Vidal, Robert Wetzel, Carl Woehlcke. And

2 I'm not sure if I had the pronunciation

3 exactly correct on all of those.

4 My question to you, sir, would be whether

5 or not any of those individuals that I had just

6 listed served as peer referees for any of the papers

7 or chapters of the book?

8 A. Yes.

9 Q. Okay. And just for the sake of

10 clarification, I would exclude your name from that

11 list and ask the same question so this way you're not

12 referring to yourself.

13 A. Yes.

14 Q. I'm going to do the same. I'll be reading

15 you a list of witnesses, and this list is by the

16 United States Government. I will just again rapidly

17 go through and read off this list and be posing the

18 same question to you.

19 Richard Bonner, John Burt, Martin Fleming,

20 Delbert Hicks, Lewis Hornung, Robert Johnson, Lonnie

21 Jones, Ronald Jones, Robert Kadlec, Ronald Lacewell,

22 Guy Lanza, David Lean, Mark Maffei, Burkett Neely,

23 Teofilo Ozuna, Paul Parks, Ronald Raschke, Dick Ring,

24 Dan Scheidt, Ronald Smola, Mike Soukup, James Vearil,

25 William Walker.

1 I believe that is the list, but I would add

2 to that the following names: Lonnie Jones, Ronald

3 Lacewell, Teofilo Ozuna, William Boggess, Daniel

4 Bromely, Bruce Gardner, and that would complete the

5 list.

6 Were any of those individuals, diBRITISH of

7 them serve as peer referees for any of the chapters

8 of the book?

9 A. Yes.

10 Q. Finally, sir, I will read off a list of

11 witnesses that were designated by the Department of

12 Environmental Regulation of Florida. Barton Bibler --

13 MR. KOBELINSKI: One moment. Take a quick

14 break.

15 (Discussion held off the record.)

16 BY MR. KOBELINSKI:

17 Q. Let me go through this list very quickly.

18 Barton Bibler, Doug Fry, Russel Frydenborg, Richard

19 Harvey, Wayne Magley, Peggy Mathews, Frank Nearhoof,

20 Landon Ross, Marlene Stern, Tom Swihart.

21 DiBRITISH of those individuals serve as

22 peer referees for any of the chapters of the book?

23 A. Not that I recall.

24 Q. Okay. And, finally, a list of witnesses

25 that were listed by the Florida Audubon Society,

1 Sierra Club and Florida Wildlife Federation.

2 Paul Parks, Charles Lee, James Webb, Craig

3 Diamond, Manley Fuller, Thomas Weis, Nat Reed.

4 DiBRITISH of those individuals serve as

5 peer referees for any of the chapters of the book?

6 A. No.

7 Q. In making determinations as to who would

8 serve as a referee for the various chapters of the

9 book, did the Editorial Board take into consideration

10 the fact that some of these witnesses were being paid

11 as experts with regard to the very issues they were

12 reviewing in the papers?

13 MR. NETTLETON: Object to the form.

14 THE WITNESS: Back when this list was made

15 we didn't have any idea who the expert witnesses

16 were. I don't even think they'd been

17 designated.

18 BY MR. KOBELINSKI:

19 Q. Okay. Did the Editorial Board take into

20 consideration that any of these witnesses -- excuse

21 me, not witnesses -- peer referees had already been

22 retained as expert consultants on the --

23 A. I don't even believe --

24 Q. -- very issues?

25 A. -- they had at that time, not to my

1 knowledge. If they did, if they were, no one knew

2 it.

3 Q. If you would, a lot of times the question

4 midway through is fairly obvious and you start

5 responding.

6 A. I'm sorry.

7 Q. She has great difficulty --

8 A. Oh.

9 Q. -- because she has to take down both mine

10 and yours.

11 To keep the transcript a little clearer, if

12 you could just wait.

13 A. Okay.

14 Q. And I appreciate sometimes it's obvious

15 where the question is heading.

16 A. Okay.

17 Q. Are you aware whether any of the peer

18 referees were designated as experts in the federal

19 litigation between the United States and the South

20 Florida Water Management District?

21 A. Yes.

22 Q. Was that taken into consideration in

23 deciding whether a referee should review a particular

24 issue upon which he had been retained as an expert?

25 A. No, because, as I said before, the same

1 thing applies, we did not know those lists or if they

2 had been made up when we made a referee list.

3 Q. When the referee decisions were made for

4 the various chapters as opposed to just the original

5 list of potential peer referees, did you have

6 knowledge as to who the expert witnesses were in the

7 federal litigation?

8 A. No.

9 Q. Okay. Was that taken into consideration at

10 all in deciding who should be a referee?

11 A. No.

12 Q. Likewise, when referees were decided for

13 the various chapters of the book in the past year --

14 well, let me withdraw that.

15 Have any determinations or decisions as to

16 peer referees been made within the last year?

17 A. I believe so for late papers.

18 Q. Okay. And in making the determination as

19 to who the referees for those late papers would be,

20 did the Editorial Board take into consideration the

21 fact that there already were experts who were

22 retained and designated for the Everglades SWIM

23 Challenge proceedings?

24 MR. NETTLETON: Object to the form.

25 THE WITNESS: No.

1 BY MR. KOBELINSKI:

2 Q. Okay. Did the Editorial Board ever review

3 the peer process at any time once it had been

4 determined that some of the peer referees were

5 retained as experts on the very issues they were

6 providing peer reviews on?

7 MR. NETTLETON: Object to form.

8 THE WITNESS: The Editorial Board reviewed

9 the peer process where we had real problems with

10 certain papers where they were borderline

11 rejection or acceptance in terms of whether we

12 were going to accept or reject a paper, but none

13 of that was in consideration of any of the

14 expert witnesses or the process that you've been

15 talking about concerning expert witness lists.

16 BY MR. KOBELINSKI:

17 Q. When was the Richardson paper declined?

18 A. Probably sometime in 1991. I'm not really

19 sure. Might have been 1990.

20 Q. Were any of the peer referees for the

21 Richardson paper included in the various lists I just

22 read out?

23 A. I feel that would be breaching their

24 confidentiality.

25 Q. By the way, when did you want to break for

1 lunch? Was there a particular time or is --

2 A. No, no, just any particular time that's

3 good for you.

4 Oh, from now till perhaps five.

5 Q. I'm sure that will be seconded by others.

6 With whom have you discussed your expert

7 testimony?

8 A. Well, with you (indicating Mr. Nettleton)

9 and with Jackie Waters.

10 Q. Okay. The "you" that you initially

11 referred to, would that be Paul Nettleton?

12 A. Yes, yes.

13 THE WITNESS: Excuse me, Paul.

14 BY MR. KOBELINSKI:

15 Q. Have you discussed your expert testimony

16 with anyone else?

17 A. Jim Grimshaw, Morris Rosen and there's one

18 other attorney present. I don't know -- I forget his

19 name. I guess he was an attorney.

20 MR. NETTLETON: Um-hum.

21 THE WITNESS: But I don't remember his

22 name.

23 BY MR. KOBELINSKI:

24 Q. So you referred to "his." I assume it's a

25 man.

1 A. Yes.

2 MR. NETTLETON: His name was Patrick

3 Cousins, if you'd like that.

4 MR. KOBELINSKI: Neither like or dislike.

5 I don't know that I've met him.

6 BY MR. KOBELINSKI:

7 Q. Do you recall when you had your discussions

8 about your expert testimony with -- is it Mr. or

9 Dr. Grimshaw?

10 A. Dr.

11 Q. -- with Dr. Grimshaw?

12 A. I had two meetings. One was a couple of

13 months ago, I don't remember the date, and one was

14 last week.

15 Q. And was it Dr. or Mr. Rosen?

16 A. Mr.

17 Q. When have you discussed your expert

18 testimony with Mr. Rosen?

19 A. At the meeting last week.

20 Q. Who attended the meeting last week?

21 A. I believe Morris Rosen was there. I'm

22 thinking back. I think Morris was there, Jim

23 Grimshaw was there, Paul was there, and the attorney

24 that he mentioned was there.

25 Q. With regard to the meeting you had with

1 Dr. Grimshaw a couple of months ago, who was present

2 at that meeting?

3 A. Paul and Jim Grimshaw. I honestly don't

4 remember if there was anyone else there or not. I

5 know the two of them were there. I think it was just

6 the two of them.

7 Q. Have you ever discussed your testimony with

8 any of the attorneys for the United States or the

9 Department of Justice?

10 A. No.

11 Q. Have you ever discussed your testimony with

12 any of the attorneys for the Department of

13 Environmental Regulation?

14 A. No.

15 Q. Have you ever discussed your testimony with

16 any other individuals other than Mr. Rosen and

17 Dr. Grimshaw, other than the attorneys?

18 A. No.

19 ...............INDEXED-QUESTION.....

20 Q. Okay. Mr. Davis, I'm going to repeat my

21 prior question with regard to whether any of the

22 witnesses I had previously listed for you by the

23 District, United States and the DER and the other

24 intervenors, whether any of them were the peer review

25 referees for Dr. Richardson's paper.

1 ...............INDEXED ANSWER.....

2 A. I feel that would be breaching the

3 confidentiality of the reviewers.

4 MR. KOBELINSKI: Okay. Are you instructing

5 your witness not to respond to that question?

6 MR. NETTLETON: I'm instructing him he need

7 not respond to it.

8 MR. KOBELINSKI: And the basis for that

9 instruction is?

10 MR. NETTLETON: Same as what we discussed

11 before.

12 MR. KOBELINSKI: Academic?

13 MR. NETTLETON: It's already in the record.

14 I'm not going to debate it here.

15 MR. KOBELINSKI: Okay. Do you have a basis

16 for an academic objection?

17 MR. NETTLETON: I'm not going to discuss it

18 with you, Mark. You can raise it in front of

19 the hearing officer.

20 MR. KOBELINSKI: I have to make my record,

21 so I have to understand what your privilege is.

22 MR. NETTLETON: It was discussed previously

23 on the record.

24 MR. KOBELINSKI: We didn't have a

25 discussion as to this particular one witness.

1 MR. NETTLETON: It's the same objection.

2 MR. KOBELINSKI: And that would include

3 then the academic privilege.

4 MR. NETTLETON: Sorry. I didn't understand

5 your question to me.

6 MR. KOBELINSKI: That's quite all right.

7 You're not under oath.

8 MR. GREEN: Excuse me. Would you certify

9 that question, please, and answer?

10 THE COURT REPORTER: Yes, sir.

11 MR. NETTLETON: I don't think that's

12 necessary.

13 MR. GREEN: It sounds formal.

14 Just mark it, please.

15 THE COURT REPORTER: Yes, sir.

16 BY MR. KOBELINSKI:

17 Q. Mr. Davis, have you reached your final

18 expert opinions on the three areas we've discussed

19 previously?

20 A. I believe so.

21 Q. Are you currently conducting any type of

22 research in the areas of your expert testimony?

23 A. No.

24 Q. Is anyone underneath you, and by that I

25 mean anyone within your department, conducting any

1 research in the areas of your expert testimony?

2 A. No.

3 Q. Do you intend to rely upon any ongoing

4 research at this point in time as a basis for your

5 expert testimony?

6 A. I guess I need to know what you mean by

7 "ongoing."

8 Q. Well, is there any research that is

9 currently ongoing at this time or is planned and has

10 not yet been completed or the data has already been

11 collected but has not as yet been analyzed and

12 processed, anything along those lines that you intend

13 to rely upon?

14 MR. NETTLETON: That he's aware of is what

15 you're asking.

16 MR. KOBELINSKI: Yes.

17 THE WITNESS: Not that I'm aware of.

18 BY MR. KOBELINSKI:

19 Q. Okay. And would your response change if I

20 said whether or not there's any ongoing research that

21 you may rely upon?

22 A. No, it wouldn't change.

23 Q. All right. With the first subject matter

24 that is listed by the District, the historical trends

25 in distribution of cattail in water conservation

1 areas, I believe you have stated you have reached a

2 final opinion, expert opinion as to that; is that

3 correct?

4 A. Yes, that's correct.

5 Q. Okay. Is there a document that accurately

6 reflects your expert opinion as to that subject?

7 A. Probably the best document would be the

8 paper on vegetation sensitivity to phosphorus in the

9 symposium volume that we've been discussing, although

10 a lot of my information on the subject is from

11 personal observation over a number of years. That's

12 not published anyplace.

13 Q. Is that one of the chapters that's already

14 been submitted to the editor?

15 A. Yes.

16 Q. And the exact title of that document would

17 be?

18 A. "Phosphorus Inputs And Vegetation

19 Sensitivity In The Everglades."

20 Q. Okay. What is your expert opinion as to

21 the historical trends in distribution of cattails in

22 water conservation areas?

23 A. Are you putting that in the past sense

24 entirely in terms of historical trends and historical

25 distribution and changes, is that how you're --

1 Q. Well --

2 A. -- or currently what's there in 1993?

3 Q. Let me put it this way. I'll once again

4 read to you the three areas that you're designated,

5 and you can perhaps explain, and I'll go through with

6 them with you, whether or not they are an adequate or

7 accurate description of your areas of expert

8 testimony.

9 A. You'll have to rephrase.

10 Q. The first is historical trends in

11 distribution of cattail in WCA's, the second is

12 response of cattail to nutrient enrichment, the third

13 is shifts in composition of cattail and sawgrass

14 communities.

15 A. So you want to know my opinion in each of

16 these categories, summary of my opinion?

17 Q. Yes.

18 A. Okay.

19 Q. Would those three, essentially those three

20 descriptions, would you agree that those are accurate

21 descriptions of the three subject matters or areas of

22 your testimony?

23 A. Yes.

24 Q. Okay. With regard to the first area,

25 historical trends in distribution of cattails in

1 WCA's, what is your opinion as to the historical

2 trends?

3 A. In the 1970s -- well, first of all, let me

4 say that my observations are mostly limited to

5 Conservation Area 2A.

6 In the 1970s the cattail distribution in 2A

7 extended about one mile below the northern border of

8 that area and very closely corresponded to the

9 airboat trail that we commonly called the north

10 trail, ending at that trail, a fairly sharp line of

11 cattails to the north of there and the normal

12 sawgrass marsh that you find in the Everglades to the

13 south.

14 Beginning in 1979 or early 1980 I began to

15 observe cattails south of that line in an area

16 extending approximately four miles south into the

17 marsh. Up into the mid Eighties could visually see

18 an increase in density in this area, although it

19 still remains a mixture of sawgrass and cattail.

20 Q. You said was that 1980s?

21 A. Into the mid 1980s. That's when I

22 essentially stopped my regular work, field research

23 in the conservation areas. And --

24 Q. And before you go on for a moment,

25 Mr. Davis, you said you saw an increase, general

1 increase in this area, and you have now described

2 essentially two areas, one being one mile south of

3 the S-10s which I believe you stated and the

4 north-south airboat trail and then a change where it

5 extends out to approximately four miles.

6 Were you referring to that entire four

7 miles or any particular segment of it?

8 A. Most of it.

9 We were out there at least every other

10 week, often every week either by airboat or

11 helicopter, so we could key the distribution into

12 airboat trails and fish camps in terms of our airboat

13 trips and then from the helicopter we get a broader

14 overview of the areas.

15 At that time it wasn't anything really

16 intentional we were looking for. It just became

17 obvious that there was a change occurring, being out

18 there weekly.

19 Q. Okay. Anything after the Eighties?

20 A. The only thing I've done since then was in

21 19-, I believe 1992 did an aerial reconnaissance of

22 cattail distribution for two days by helicopter in

23 the water conservation areas and the north end of the

24 park and produced a map of very generalized cattail

25 distributions in that area.

1 That map is in that paper that I referred

2 to, vegetation sensitivity to phosphorus.

3 MR. KOBELINSKI: Could you read that back

4 for a moment?

5 (Thereupon, a portion of the record

6 was read by the reporter.)

7 BY MR. KOBELINSKI:

8 Q. You mentioned the WCA's, and was that and

9 the north end of the park? I didn't quite understand

10 the distinction you were making.

11 A. Yes. From Water Conservation Area 1, 2

12 and 3 and then specifically the only place I looked

13 in the park was down the L-67 extension.

14 Q. Did you observe the area south of the S-12

15 structures?

16 A. No. Essentially stayed out of the park.

17 Looked along L-67 extension from outside the park.

18 That's the park boundary at that point. Because of

19 sensitivities at that time, I used my better

20 discretion.

21 Q. Who else was on you in that aerial

22 reconnaissance flight -- with you? Excuse me.

23 A. Ken Rutchey, one of our technicians Winnie

24 Park on one of the trips, and the pilot.

25 Q. What sensitivities were you referring to in

1 relation to the park?

2 A. The lawsuit.

3 Q. Are you referring to the federal lawsuit or

4 to the SWIM Challenge proceedings?

5 A. It was the federal lawsuit back then.

6 Q. Okay. When exactly was the aerial

7 reconnaissance?

8 A. I'd have to look in the paper. Again, that

9 was a couple of years ago. It was probably in 1991.

10 I believe it states in the paper when it was.

11 Q. And what specific areas were covered in the

12 aerial reconnaissance?

13 A. Conservation Areas 1, 2, 3 and the eastern

14 border of the park next to L-67 extension.

15 Q. And when you refer to Conservation Area 2,

16 is that 2 A and B?

17 A. Yes. And 3 is 3 A and B.

18 Q. Okay. Were a hundred percent of the

19 conservation areas covered?

20 A. Yes, we traversed the areas essentially on

21 a zigzag pattern, and where we did find major cattail

22 stands, then we timed distances to the borders of

23 those stands from known levees or pump stations using

24 the navigational equipment of the helicopter.

25 Q. You had stated that Ken Rutchey

1 participated in the aerial reconnaissance.

2 Did he participate in both days?

3 A. Yes.

4 Q. About how much time did you spend each day

5 in the helicopter up in the air?

6 A. Probably six hours.

7 Q. So a total of twelve hours?

8 A. Probably.

9 Q. Approximately?

10 A. Um-hum. As I said, it's a very generalized

11 map. We didn't try to hit every tiny cattail stand

12 in the conservation area.

13 Q. Had Ken Rutchey already done any type of

14 reconnaissance or otherwise been familiar with the

15 areas of cattail?

16 A. I believe at that time he was in the

17 initial stages of producing the vegetation map for

18 Conservation Area 2A.

19 Q. What about the other conservation areas?

20 A. I don't believe he was mapping those at

21 that time.

22 Q. What type of navigational equipment did the

23 helicopter have that you were using to time

24 distances?

25 A. We were using the coordinates for pump

1 stations which are in the helicopter's computer and

2 using compass directions from those coordinates and

3 timing distances using the helicopter's air speed and

4 a watch.

5 Q. Did the helicopter have a loran system?

6 A. Yes.

7 Q. Did you obtain loran coordinates for any of

8 the sites?

9 A. We just obtained loran coordinates for our

10 base points of structures and pump stations and

11 levees. We didn't obtain loran coordinates for the

12 borders out in the marsh of the cattail areas. To my

13 knowledge, loran's not that sophisticated.

14 It was a pretty simple procedure. It

15 wasn't very complex.

16 Q. Have you ever done any prior aerial

17 reconnaissance for vegetative mapping purposes?

18 A. In the other paper in the symposium volume

19 on landscapes we mapped vegetation in 25 one square

20 mile plots throughout the conservation areas in the

21 park that had been previously established and mapped

22 by Dr. Taylor Alexander back in the Sixties, and we

23 remapped his plots to look at vegetation change.

24 Q. Was that done through aerial

25 reconnaissance?

1 A. Yes.

2 Q. Okay. What type helicopter?

3 A. The same helicopter.

4 Q. Was it done during the same approximate

5 period?

6 A. That was done earlier, probably 1989.

7 Q. What purpose did you have of doing the

8 aerial reconnaissance of cattail spread in 1991?

9 A. It was strictly for this paper I was

10 working on for the symposium volume.

11 Q. Okay. Were any of the results from your

12 reconnaissance included in the SWIM Plan?

13 A. Not to my knowledge.

14 Q. I believe you stated that Ken Rutchey had

15 been doing some vegetative mapping.

16 A. Um-hum.

17 Q. Did he produce a separate cattail expansion

18 map or vegetative map?

19 A. He's produced a vegetation map of

20 Conservation Area 2A.

21 Q. Does it match the one that's included in

22 your paper that you've referred to that you prepared

23 as a result of the aerial reconnaissance?

24 A. Yes.

25 Q. Okay. With regard to the aerial

1 reconnaissance you did of the Alexander plots -- is

2 that correct?

3 A. Um-hum.

4 Q. -- how did you go about doing that

5 reconnaissance?

6 A. We had aerial photography of the areas

7 including these plots which through visual landmarks

8 of tree islands and sloughs we could find the plot

9 boundaries on the more recent aerial photographs

10 which were 1980-, between 1985 and 1989 more recent

11 photography, and then we went to each of these sites,

12 located the boundaries from the air, and simply noted

13 on an overlay, a plastic overlay over the aerial

14 photograph what the communities were at this time,

15 spending perhaps as much as a couple of hours on a

16 square mile plot to look at every cluster of

17 vegetation and identify it from the air in terms of

18 community.

19 Q. Approximately what height were you doing

20 aerial reconnaissance?

21 A. Whatever height we needed to to identify

22 the communities. Sometimes we'd have to go down to

23 the ground. Sometimes we could identify it as a

24 sawgrass stand from a hundred feet. It was a much

25 finer scale mapping than the entire conservation area

1 or the map that I indicated in the other publication.

2 Q. When you say you went down to the ground,

3 would you actually land the helicopter in your review

4 of the Alexander plots?

5 A. No, that wasn't necessary because you could

6 see the community type without landing the

7 helicopter.

8 Q. In that particular mapping did you include

9 mapping of the periphyton community?

10 A. No.

11 Q. Did you have any difficulty locating the

12 Alexander plots?

13 A. No. We had coordinates for them, so we

14 could get the helicopter pretty close to them and

15 then it was just looking for visual landmarks such as

16 major tree islands and zeroing in on them.

17 Q. Did you do any groundtruthing of the

18 vegetative makeup of the Alexander plots?

19 A. Well, that's considered to be

20 groundtruthing even if it's by helicopter. It's

21 going out, on-site verification.

22 Q. Do you do any other type of on-site

23 verification?

24 A. No.

25 Q. And you compared those to what photos?

1 A. Taylor Alexander and his co-author's name

2 was Crook, I forget his first name now, had produced

3 a report in the early Seventies on vegetation maps of

4 these plots made during the Sixties, during the mid

5 Sixties, so we had about a 20-year interval from the

6 mid to late Sixties to the mid to late Eighties that

7 would look at change.

8 Q. Did you review all the Alexander plots?

9 A. Pardon?

10 Q. Did you review all the Alexander plots?

11 A. We reviewed all the Alexander plots that

12 were in the Everglades as we defined them in the

13 symposium.

14 Q. Which would be what area?

15 A. They were all in the conservation areas of

16 the park. I don't think there were any outside the

17 conservation areas of the park. I'd have to look

18 back. There were 25 all together.

19 All together Taylor Alexander mapped nearly

20 a hundred plots, nearly a hundred plots in South

21 Florida, but some were in Big Cypress, some were

22 outside the boundaries of the Everglades.

23 Q. Did you find all of the plots, Alexander

24 plots that were located within the Everglades as you

25 defined it?

1 A. Yes.

2 Q. Was the surface water quality measured

3 within the plots?

4 A. No.

5 Q. How did your reconnaissance of the

6 Alexander plots differ, if it did at all, from your

7 reconnaissance of the cattail distribution that took

8 place in approximately 1991?

9 A. Much more detailed. We were looking at

10 clusters of vegetation in the Alexander plots within

11 a resolution of 10 meters, about 30 feet, while for

12 the overview of all the conservation areas we were

13 looking at only the distribution of major stands of

14 cattails, we were looking only at the distribution of

15 major stands of cattails and were not recording the

16 small stands of cattails in that range of 10 meters

17 or that occur naturally in the conservation areas.

18 Q. How would you define then a major stand of

19 cattail or how would you define it as part of your

20 reconnaissance trip in 1991?

21 A. Continuous areas of cattail as opposed to

22 small patches.

23 Q. You're familiar with cattail early

24 colonization of post burn or at burn sites; is that

25 correct?

1 A. Yes.

2 Q. Okay. Being familiar with that, would you

3 have in your aerial reconnaissance of cattail that

4 took place in 1991, would those type of cattail

5 stands have been included in your reconnaissance?

6 A. Yes.

7 MR. KOBELINSKI: I need to take a break.

8 (Thereupon, a recess was taken from

9 11:35 a.m., until 11:38 a.m.)

10 BY MR. KOBELINSKI:

11 Q. Mr. Davis, you had mentioned that you had

12 also done aerial reconnaissance or mapping,

13 vegetative mapping with regard to the Alexander

14 plots.

15 Were there any other vegetative mapping or

16 reconnaissance you've done in the past?

17 A. Well, not unless you go back to the early

18 Seventies on the St. Johns River which I don't think

19 is relevant to this --

20 Q. What type of --

21 A. -- issue.

22 Q. What type of vegetative mapping did you do

23 at St. Johns River?

24 A. Produced a vegetation map of the upper

25 St. Johns River floodplain.

1 Q. Was that likewise with a helicopter?

2 A. We didn't have a helicopter, the use of a

3 helicopter back then. It was mainly groundtruthing

4 aerial photography from the ground.

5 Q. Did you review any type of aerial

6 photography or satellite photography with relation to

7 your aerial reconnaissance in 1991 for the spread of

8 cattail?

9 A. I don't understand your question.

10 Q. Did you in conjunction with your helicopter

11 overflights also look at any type of aerial

12 photography or satellite imagery?

13 MR. NETTLETON: For?

14 THE WITNESS: We looked at satellite

15 imagery before the flight to make sure that we

16 were covering obvious areas of cattails in

17 addition to those that we found that were less

18 obvious, areas that stood out clearly on aerial

19 photography.

20 BY MR. KOBELINSKI:

21 Q. And do you have any opinion as to what the

22 post 1991 distribution of cattails are in the WCA's?

23 A. No.

24 Q. Did you do any water quality sampling in

25 conjunction with this reconnaissance in 1991?

1 A. No.

2 Q. Where have you done water quality sampling

3 in the WCA's in the park?

4 A. I've done none in the park.

5 My water quality sampling is limited to

6 Water Conservation Area 2A during the years of

7 vegetation research from about 1975 to the mid

8 Eighties.

9 Q. Did at that point in time you stop doing

10 any type of field work?

11 A. Yes.

12 Q. Is there a particular reason for that?

13 A. Taking on more supervisory

14 responsibilities.

15 Q. Okay. Do you have any opinion as to what

16 the distribution of cattail were prior to the 1970s?

17 A. I've looked at aerial photography from the

18 mid to late Sixties, and the cattail stand that I

19 referred to north of the north airboat trail was very

20 apparent on that photography in the late Sixties.

21 Q. What aerial photography would that be?

22 A. That was just black and white Mark Hurds

23 back then.

24 Q. I didn't understand the last.

25 A. Black and white Mark, it's called Mark

1 Hurds.

2 Mark Hurd was the company that routinely

3 flew aerial photography of the conservation areas.

4 Q. And did you or anyone else groundtruth the

5 aerial photography of the late Sixties?

6 A. No, I didn't.

7 Q. What experience do you have in aerial

8 photography, in interpretation of aerial photography?

9 A. Just what I told you.

10 Q. Who within the District would be the person

11 with the most knowledge about the post 1991

12 distribution of cattails in the WCA's?

13 MR. NETTLETON: Object to form.

14 THE WITNESS: Probably Ken Rutchey.

15 BY MR. KOBELINSKI:

16 Q. Do you know whether or not Mr. Rutchey --

17 is it Mr. or Dr. Rutchey?

18 A. Mr.

19 Q. -- whether Mr. Rutchey has determined the

20 cattail distributions in Water Conservation Area 1

21 after the 1991 aerial reconnaissance he did with you?

22 A. I don't know.

23 Q. Have you ever spoken with him about any

24 additional vegetative mapping?

25 A. Not recently.

1 I left the Research Department more than a

2 year ago and haven't been working with these people

3 for more than a year, so...

4 Q. Will you be offering an expert opinion as

5 to what the historic distribution of cattails were in

6 the Everglades prior to the development of the

7 federal project?

8 A. Will I be offering?

9 Q. Do you expect to give an expert opinion as

10 to what the distribution of cattails were prior to

11 the diking off and development of the federal

12 project?

13 A. If asked.

14 Q. Okay. Well, have you been asked to do so

15 thus far?

16 A. No.

17 Q. Do you intend to give an expert opinion as

18 to that matter?

19 A. I don't know.

20 Q. Well, at this point in time do you intend

21 to do so?

22 A. If they ask me.

23 Q. If they ask you.

24 All right. Do you have any additional

25 expert opinions as to the historical trends in

1 distribution of cattails in the WCA's?

2 A. Well, there's historical reports that

3 indicate cattails in the WCA's prior to the project,

4 and that would be the only basis of my opinion.

5 Q. But I thought a few moments ago you stated

6 that at this point in time you had not been asked to

7 offer an opinion as to pre-project distribution of

8 cattails.

9 A. That's true.

10 Q. Okay. What is your knowledge of

11 pre-project distribution of cattails?

12 A. Accounts particularly in "The Natural

13 Features of South Florida" by John Henry Davis in the

14 1940s of scattered cattail stands in what are now the

15 water conservation areas.

16 Q. Anything else?

17 A. No.

18 Q. As part of this area of your expert

19 testimony on the historical trends in distribution of

20 cattails in water conservation areas, are you

21 offering any type of expert opinion as to the cause

22 for the distribution of cattails?

23 A. For historical distribution of cattail?

24 Q. Yes.

25 A. Are you talking pre project or --

1 Q. I'm talking --

2 A. Would you be more specific?

3 Q