1

1 DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA

SUGAR CANE GROWERS COOPERATIVE )

3 OF FLORIDA; ROTH FARMS, INC.; and )

WEDGWORTH FARMS, INC., )

4 Petitioners, )

vs. )DOAH Case No. 92-3038

5 SOUTH FLORIDA WATER MANAGEMENT )

DISTRICT, an agency of the State )

6 of Florida; et al., )

Respondents. )

7 - - - - - - - - - - - - - - - - - x

FLORIDA SUGAR CANE LEAGUE, INC., )

8 UNITED STATES SUGAR CORPORATION; )

and NEW HOPE SOUTH, INC., )

9 Petitioners, )

vs. )DOAH Case No. 92-3039

10 SOUTH FLORIDA WATER MANAGEMENT )

DISTRICT, an agency of the State )

11 of Florida; et al., )

Respondents. )

12 - - - - - - - - - - - - - - - - - x

FLORIDA FRUIT AND VEGETABLE )

13 ASSOCIATION; LEWIS POPE FARMS; )

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

14 and HUNDLEY FARMS, INC., )

Petitioners, )

15 vs. )DOAH Case No. 92-3040

SOUTH FLORIDA WATER MANAGEMENT )

16 DISTRICT, an agency of the State )

of Florida; et al., )

17 Respondents. )

- - - - - - - - - - - - - - - - - x

18 100 Southeast 2nd Street

Miami, Florida

19 March 15, 1994

1:10 p.m. - 5:55 p.m.

DEPOSITION OF WILLIAM MICHAEL DENNIS

21 VOLUME I

22 Taken before RICHARD BURSKY, Registered

23 Professional Reporter and Notary Public in and for

24 the State of Florida at Large, pursuant to Notice of

25 Taking Deposition filed in the above cause.

1 APPEARANCES

3 ON BEHALF OF THE PETITIONERS FLORIDA SUGAR CANE

LEAGUE, INC., UNITED STATES SUGAR CORP., and

4 NEW SOUTH HOPE, INC.

EARL BLANK KAVANAUGH & STOTTS , P.A.

6 One Biscayne Tower - Suite 3636

Two South Biscayne Boulevard

7 Miami, Florida 33131

BY: MARK T. KOBELINSKI, ESQ.

ON BEHALF OF THE RESPONDENT SOUTH FLORIDA WATER

10 MANAGEMENT DISTRICT

POPHAM HAIK SCHNOBRICH & KAUFMAN

12 International Place - 40th Floor

100 Southeast 2nd Street

13 Miami, Florida 33131

BY: PAUL L. NETTLETON, ESQ.

ON BEHALF OF THE RESPONDENT-INTERVENOR

16 UNITED STATES OF AMERICA

KATHY A. STARK, ESQ.

18 Assistant United States Attorney

99 Northeast 4th Street

19 Third Floor

Miami, Florida 33132

21 PRESENT:

22 MARK D. MAFFEI

1 INDEX

2 Witness Direct

3 WILLIAM MICHAEL DENNIS

4 By Mr. Nettleton: 4

5 EXHIBITS

6 NUMBER DESCRIPTION PAGE

1 Professional Resume of 30

Dr. W Michael Dennis

2 Two pages indicating 54

at the upper right

Marked in Search: #10

1 Thereupon --

2 WILLIAM MICHAEL DENNIS

3 was called as a witness and having been first duly

4 sworn, was examined and testified as follows:

5 DIRECT EXAMINATION

6 BY MR. NETTLETON:

7 Q. State your name for the record, please.

8 A. William Michael Dennis.

9 Q. And can you give us your address, please?

10 A. My business address is 4301 Metric Drive,

11 Winter Park, Florida.

12 Q. Dr. Dennis, could you please tell me, just

13 generically go through what your educational

14 background is, formal educational background?

15 A. Yes, sir. I received a bachelor of

16 science degree from Emory University, majoring in the

17 area of biology in 1969, a master of science degree

18 in biology from the University of South Carolina in

19 1973 and a Ph.D. from the University of Tennessee in

20 1976, and that was in the area of botany.

21 Q. Where are you currently employed?

22 A. With Breedlove, Dennis & Associates.

23 Q. Can you describe for me what the general

24 business practice of Breedlove, Dennis & Associates

25 is?

1 A. Yes, sir. We are environmental

2 consultants and we practice in the environmental

3 area, more specifically in projects that deal with

4 wetlands, threatened and endangered species, water

5 quality issues, some Phase I hazardous waste studies,

6 environmental permitting as it relates to water and

7 land.

8 Q. Approximately how many employees does, can

9 I use an acronym, BDA?

10 A. Yes.

11 Q. How many employees does BDA have?

12 A. Currently we have 30-something employees.

13 Q. How many of those employees are technical

14 staff approximately?

15 A. Approximately two-thirds, more or less.

16 Q. What kind of specialties are included

17 within the technical staff?

18 A. We have doctorate level scientists in the

19 areas of plant taxonomy, plant ecology, wildlife

20 ecology, systems ecology, master's and bachelor's

21 level scientists in the areas of biology, zoology,

22 ecology, computer sciences, environmental

23 engineering, limnology, those general areas.

24 Q. You mentioned that currently the size, the

25 number of employees is approximately 30. In the last

1 three years or so has there been a time when it was

2 significantly more than 30 persons?

3 A. I believe I said it was 30-something. It

4 is probably closer to 40 right now. It is the high

5 thirties, somewhere in there.

6 Yes, we have been larger than that in the

7 last three years.

8 Q. What was the largest that BDA was with

9 regard to numbers of employees in the last few years,

10 approximately again?

11 A. I believe that we grew to approximately a

12 hundred people, more or less.

13 Q. About when was that?

14 A. As I recall, it was approximately two

15 years ago.

16 Q. Was that a steady growth to 100 or was

17 that a sudden increase in employees for particular

18 projects you were working on?

19 A. There was a general increase in growth in

20 our business, in our company, from approximately 1983

21 to 1982 or so.

22 Q. You mean '92?

23 A. '92, sorry. We acquired a planning and

24 architecture firm within the latter part of that time

25 frame which was, other than the more general growth

1 that we were experiencing, that was a sizeable jump,

2 when we added those expertise.

3 Q. What is the explanation for the decline in

4 growth from the 100 down to approximately 30 now?

5 A. We have been trying to figure that out.

6 The best that I can tell, it was a result

7 of a general reduction in the market that we were

8 serving which was primarily the private sector

9 market. So there was a general downturn in projects

10 actually beginning in the late eighties, early

11 nineties in the development industry. And that was,

12 that, I believe, was probably one of the most

13 significant factors.

14 There are probably others.

15 Q. You stated that BDA primarily serves the

16 private sector market. Can you describe for me a

17 little more specifically what your clientele consists

18 of?

19 MR. KOBELINSKI: I assume we are going to

20 be getting to something related to the Everglades at

21 some point in your questioning, counsel?

22 MR. NETTLETON: I have a few days.

23 MR. KOBELINSKI: I see you are going to

24 take them all, given this.

25 A. I am sorry, would you repeat the question?

1 BY MR. NETTLETON:

2 Q. Yes. Could you provide a little more

3 detailed description of the general clientele of BDA?

4 A. In what time period?

5 Q. The last three to five years.

6 A. Probably in the last three to five years

7 it would consist of various developer and development

8 company clients, various private sector clients or

9 associations that were interested in rule making and

10 legislation. We, of course, have been involved in

11 this litigation representing the farm interest.

12 More recently we have begun to do some, or

13 more, I guess you would say more, government work.

14 We have always had a certain amount during

15 that time period of DOT work; wetlands monitoring,

16 mitigation plans.

17 Those are the general types of clients and

18 client services.

19 Q. Is it fair to say that other than some of

20 the DOT work and some of your recent governmental

21 work, that BDA's general clientele consisted of

22 industry type clients in negotiations with government

23 allegation or representing them in litigation against

24 government agencies?

25 A. The larger percentage of our work has been

1 representing private sector clients, yes.

2 Q. I am just trying to get a feel for that

3 representation. Am I correct from your descriptions

4 that that generally would be involved in some forms

5 of negotiations or dealings with government agencies

6 of some sort related to environmental issues?

7 MR. KOBELINSKI: Are you including in that

8 permit applications and the like?

9 MR. NETTLETON: Yes.

10 A. That is certainly a significant part of

11 our business, yes.

12 Q. Is BDA a partnership?

13 A. It is a corporation.

14 Q. It is a Florida corporation?

15 A. Yes, sir.

16 Q. What is your current position with BDA?

17 A. I am a vice president and senior

18 scientist.

19 Q. How long have you been in that position?

20 A. Since approximately 1982, '83.

21 Q. Can you describe generally what your

22 duties and responsibilities are with BDA in your

23 current position?

24 A. Yes, sir. I have responsibility for

25 managing certain projects and being the primary

1 company liaison with certain clients.

2 I also serve as a technical person on

3 certain projects, depending on what the project is.

4 And I also at the current time am responsible for

5 overall company operations.

6 Q. Have your duties and responsibilities as

7 you have described them evolved over the time you

8 have been at BDA from when you started there?

9 A. Yes.

10 Q. When did you first start working for BDA?

11 A. The spring of 1981.

12 Q. What was your first position?

13 A. I don't recall the exact title but it was

14 as a scientist, primarily botanist, plant ecologist,

15 wetlands specialist.

16 Q. And then am I correct in approximately

17 1982 or 1983 you went from that position to vice

18 president and senior scientist?

19 A. That's correct.

20 Q. What were your duties and responsibilities

21 as a scientist when you first arrived at BDA?

22 A. Most of my initial duties involved

23 vegetation mapping and analysis, wetlands

24 determinations, threatened and endangered plant

25 surveys, botanical studies in general.

1 Q. Prior to your coming to work for BDA,

2 where were you employed?

3 A. Tennessee Valley Authority.

4 Q. What positions did you hold for the TVA?

5 A. I held scientist positions with TVA. At

6 that time TVA had four categories of scientist as I

7 recall and I came in as a, whatever the level two

8 was, and by the time I left I was at the level four

9 which was the highest scientist level at TVA at that

10 time.

11 Q. When did you begin working with TVA?

12 A. June 1976.

13 Q. Was that at about the time you received

14 your Ph.D.?

15 A. Approximately the same time. I received

16 the Ph.D. in December 1976.

17 Q. What led you to leave TVA and arrive at

18 BDA?

19 A. TVA in the spring of 1981 underwent a

20 rather significant and drastic reduction in force

21 program and I was one of the force that was reduced.

22 Q. Dr. Dennis, are you the Dennis in the

23 Breedlove, Dennis & Associates, the named partners?

24 A. Yes, I am.

25 Q. What was BDA called when you first arrived

1 there in 1981?

2 A. Breedlove Associates, Inc.

3 Q. In your current position with BDA do you

4 have anyone that you report to?

5 A. I report to the president and the board of

6 directors.

7 Q. Who is the president of BDA?

8 A. Ben Breedlove.

9 Q. Can you describe for me essentially how

10 BDA is organized in the sense of the technical staff?

11 A. Currently the scientists are grouped in a

12 section with Dr. Jay Exum as the section lead, and

13 the computer scientists are in a separate section

14 with Chuck Ronsaghan as a section lead. Both of them

15 report to me.

16 Q. So am I correct there are essentially two

17 sections of technical staff, one in the computer

18 science area and one in the other scientific areas?

19 A. That's essentially correct.

20 Our administrative staff I think is a

21 little more technical oriented than typically a

22 secretarial staff would be. So they carry out

23 certain functions that fall in the technical area,

24 whereas they may not be degreeed in science, they

25 have knowledge and experience and some of them do

1 have science degrees. So they function in an

2 administrative capacity in support of the other

3 sections.

4 Q. Is the administrative staff organized

5 along these same sections?

6 A. They are in a separate section.

7 Q. So there is a separate administrative

8 section in BDA?

9 A. Yes, sir.

10 Q. Who is the lead in the administrative

11 section?

12 A. Sue Kain.

13 Q. Does she also report to you?

14 A. Yes.

15 Q. Dr. Dennis, have you testified as an

16 expert before?

17 A. Yes, sir, I have.

18 Q. Can you tell me approximately how many

19 times?

20 A. I have not gone back and counted it up.

21 It would be in the neighborhood of 20, 30 times,

22 somewhere in that category.

23 Q. To the best of your recollection, can you

24 give me some of the subject matters that you have

25 provided expert testimony on in the past?

1 A. Yes, sir. I have testified in

2 transmission line siting cases, those would be 120

3 administrative hearings.

4 I have testified or given depositions in

5 ordinary high water line cases, both administrative

6 cases and court cases.

7 I have given testimony on wetland

8 jurisdiction and permitting. That would be in

9 federal, state and 120 hearings.

10 I have given testimony in consumptive use

11 permitting cases, 120 administrative hearings.

12 I have either given testimony or have been

13 deposed in certain rule making proceedings.

14 I have given testimony in condemnation or

15 land use types of cases.

16 And I have given testimony several times

17 concerning justification of fees where attorney fees

18 and consultant fees were awarded.

19 There may be others. Those are the

20 general areas that I can recall at this time.

21 Q. With the transmission line siting, can you

22 describe for me just a little more specifically what

23 that involves, the subject matter?

24 A. The cases, several cases I can recall

25 dealt primarily with either the location and siting

1 of a transmission corridor, or there was a court case

2 between one of the power companies and at that time

3 DER concerning permit issuance on a transmission

4 line.

5 Q. Let me try to rephrase my question, make

6 it a little clearer.

7 Can you give me a little more specifics on

8 the subject matter of your testimony, what you were

9 asked to testify concerning?

10 A. I was asked to testify in the general

11 areas of suitability of the particular selected

12 transmission corridor for alignment as it related to

13 wetlands, threatened and endangered species,

14 wildlife.

15 Q. And in those cases have you been

16 testifying on behalf of the power industry?

17 A. I have testified both for and against the

18 power industry.

19 Q. In the cases in which you testified

20 against the power industry, who was your client?

21 A. Two transmission line cases that I recall

22 at this time, one had to do with transmission line in

23 the Volusia County area and Consolidated Tomoka was

24 my client in that case.

25 There was a transmission line siting case

1 here in South Florida, and I represented, I believe

2 it was the Sugar Cane League in that litigation.

3 Q. Do you recall the location of that

4 particular power line siting in which you were

5 working for the Sugar Cane League?

6 A. It had to do with the power line that was

7 eventually sited through the Water Conservation

8 Areas.

9 Q. Did you provide deposition testimony in

10 that case?

11 A. As I recall, I was deposed and I testified

12 in --

13 Q. Was that an administrative hearing?

14 A. Yes, sir.

15 Q. Can you describe for me generally the

16 subject matter of your testimony in the high water

17 line cases?

18 A. Yes, sir. There have been several

19 ordinary high water line cases I have testified in

20 and they primarily dealt with, as it pertained to my

21 testimony, the botanical indicators of ordinary high

22 water line.

23 Q. In those particular cases were you

24 testifying on behalf of developers or some other

25 types of clients?

1 A. In those cases I was representing the

2 landowner, in one ordinary high water line rule

3 making case I was representing the Florida Society

4 for Professional Land Surveyors or whatever the exact

5 title of their organization is.

6 Q. What has been the nature of your testimony

7 in the wetland jurisdiction in permitting cases?

8 A. Could you be -- give me a little more

9 guidance?

10 Q. You mentioned that one of the types of

11 cases that you provided expert testimony in has been

12 cases involving wetland jurisdiction and permitting.

13 And I am asking, can you give me a more specific

14 description of the subject matter of the testimony

15 you provided in those cases.

16 A. Those cases, as I recall, dealt either

17 with a question of jurisdictional boundary or some

18 type of permitting issue such as adequacy of

19 mitigation or evaluation of impacts.

20 Q. When you say jurisdictional boundary,

21 would your testimony involve opinion testimony

22 concerning whether or not particular land should be

23 considered a wetland under the applicable statute in

24 the particular case?

25 A. Yes.

1 Q. Can you give me a more specific

2 description of the subject matter of your testimony

3 that you have provided in consumptive use permitting

4 cases?

5 A. Yes, sir. In those cases it dealt

6 primarily with what impacts to wetlands, terrestrial

7 vegetation or wildlife including threatened or

8 endangered species might or might not result from the

9 particular well withdrawal rate.

10 Q. Can you describe for me the clients you

11 have represented in consumptive use permitting cases

12 generically?

13 A. I have represented both private landowner

14 clients and utilities.

15 Q. Can you describe generically the clients

16 that you have represented in wetland jurisdiction and

17 permitting cases?

18 A. They typically have been either landowners

19 or a utility.

20 Q. You mentioned you have also given expert

21 testimony in rule making proceedings. Can you be a

22 little more specific, what type of rule making

23 proceedings?

24 A. Yes, sir, typically rules that have dealt

25 with wetlands issues or wetlands, uplands, wildlife,

1 threatened and endangered species issues and land

2 use.

3 Q. Are these rule making proceedings

4 generally state or do they also include federal that

5 you have provided testimony in?

6 A. I don't believe there have been any

7 federal rule makings.

8 Q. You mention you have given expert

9 testimony in cases involving condemnation and land

10 use. Can you describe a little more specifically

11 what type of testimony or what the subject matter of

12 your testimony was in those cases?

13 A. As I recall, they generally had to do with

14 some type of condemnation issue. And I don't recall

15 the specifics very clearly right now of those cases.

16 One dealt with a landfill, but I don't

17 recall whether we actually -- two actually dealt with

18 a landfill but I don't recall whether or not those

19 ever made it all the way to hearing or whether there

20 were just deposition or -- I just can't recall

21 exactly where those ended.

22 There was another case or two where there

23 was dispute over how much a particular piece of land

24 was worth. And I testified as to how much of the

25 land was developable based on wetlands and wetland

1 permitting criteria, in my opinion.

2 That was the only part of the case I was

3 involved in. And I don't recall exactly who was

4 doing the condemning and what the reason was.

5 Q. Can you describe generically the clients

6 that you have represented in these condemnation and

7 land use type of cases?

8 A. They have typically been the landowner.

9 Q. Can you describe generically the types of

10 clients that you have represented in rule making

11 proceedings or provided testimony for in rule making

12 proceedings?

13 A. Typically they have been private clients.

14 There may be -- there may have been some that had

15 some government affiliation, a local government, for

16 instance, but I don't recall that specifically.

17 Q. Does BDA advertise its services in any

18 forum?

19 A. We have.

20 Q. What type of advertising?

21 A. In the past we have run advertisements in

22 trade journals, trade shows, I guess in the

23 traditional advertising sense and my concept of it.

24 Those would be the primary traditional advertising

25 ways.

1 Q. Does BDA have firm brochures, things of

2 that nature?

3 A. Yes, we do.

4 Q. As part of your services that you

5 advertise or specify in your brochures and in any of

6 the advertisements you may have placed in trade

7 journals, do you include reference to the

8 availability of expert testimony?

9 A. I believe we have, yes.

10 Q. Would it be fair to say that most of BDA's

11 business is either related to litigation or to

12 matters that could lead to litigation?

13 A. In this day and time I have to assume that

14 almost any activity can lead to litigation.

15 Q. I guess that is a fair answer.

16 In the cases that you have provided expert

17 testimony, during those time periods were you

18 employed by BDA?

19 A. Yes, sir, I was.

20 Q. Did you provide any expert testimony in

21 any matters prior to your employment with BDA?

22 A. I don't believe so.

23 Q. Have you published any original work in

24 any refereed journals that specifically relates to

25 the subject matter of your expected testimony in this

1 case?

2 A. I have published no papers specifically

3 dealing with the Everglades.

4 Q. Other than the Everglades, with regard to

5 the subject matter of your expected testimony, have

6 you published any original work in any refereed

7 journals?

8 A. I published work in refereed journals.

9 Any of those publications I believe would be only

10 tangential to testimony in this case.

11 Q. Let me remove my qualifier of refereed

12 journals. Have you published any papers in any

13 publications that specifically relate to the subject

14 matter of your expected testimony in this case?

15 A. Not directly related that I recall.

16 Q. Prior to your work related to this case,

17 have you been involved in any specific research in

18 the Everglades?

19 MR. KOBELINSKI: In this case, you are

20 referring to these DOAH proceedings?

21 MR. NETTLETON: That's fine, and we can go

22 from there.

23 A. I believe the answer is yes.

24 Q. Can you tell me what those research

25 projects were?

1 A. If you would, please, sir, clarify for me

2 the scope of this particular proceeding.

3 Q. We have been trying to do that for three

4 years.

5 A. Then you understand my question.

6 Q. Let me back up.

7 Other than your work for the League

8 related to the issues involved in the Everglades SWIM

9 Plan challenge as broadly as those may be defined,

10 have you done any other research in the Everglades?

11 A. I have not.

12 Q. Did you do any specific research in the

13 Everglades? And by the Everglades I mean the

14 Everglades Protection Area. Is that how you

15 understood it? Let me define that, then.

16 When I am referring to the Everglades here

17 I am referring to what has been statutorily defined

18 as the Everglades Protection Area including the Water

19 Conservation Areas as well as the Park. Does that

20 change your previous answer?

21 A. Other than the transmission line case

22 which we discussed earlier, that went through the

23 EPA, I have conducted no research in the EPA.

24 Q. That was my next question.

25 Can you describe for me what research you

1 did conduct with regard to the transmission line

2 siting through the Water Conservation Areas?

3 A. Yes, sir, I will try. That was several

4 years ago and I haven't reviewed that file in some

5 time.

6 As I recall, I was basically reviewing and

7 analyzing various proposed transmission line routings

8 in terms of what areas they were going through, what

9 types of areas they were vegetatively, and to a

10 degree, what types of impacts might be associated

11 with it and what types of impacts might be associated

12 with alternative routes.

13 Q. Did you do any vegetative mapping for

14 purposes of that particular case?

15 A. As I recall, we did some degree of

16 vegetation mapping or analysis.

17 Q. Do you recall the geographic locations of

18 that vegetative mapping or analysis?

19 A. As I recall, it generally was following

20 what turned out to be the selected route for that

21 transmission line, and one of several of the other

22 transmission lines alternatives.

23 Q. Do you recall which if any Water

24 Conservation Area was involved?

25 A. As I recall, one area that was looked at

1 came down the western side of WCA-1 and I don't

2 specifically recall whether it came down -- areas of

3 Water Conservation Area 3 I believe were involved.

4 I don't recall the exact -- I just don't

5 recall the exact route location right now.

6 Q. Do you recall whether there was any

7 vegetative mapping or analysis in WCA-2A with regard

8 to that project?

9 A. There may have been. It would have

10 followed wherever the alignments that were being

11 evaluated went.

12 Q. Was the Florida Sugar Cane League

13 advocating a particular alternative route?

14 A. I don't recall exactly what their position

15 was except for, as I recall, there was a concern

16 about the spacing of the new line from, perhaps, some

17 existing lines and how wide those distances were, how

18 close or wide those were.

19 And as I recall, they had some concern

20 about that, the distances between those lines and

21 where the new line might go.

22 Q. Do you recall what your conclusions or

23 opinion testimony was that you gave in that case?

24 A. I don't remember the details of it. I

25 seem to remember that my testimony indicated that

1 there would generally be less impact if the line went

2 through the sugar cane fields than through the Water

3 Conservation Areas, and that there would be less

4 impact if transmission lines were co-located rather

5 than being in two different places, and that there

6 appeared to be some impact on the Everglades

7 vegetation associated with the construction and to a

8 degree the maintenance of the transmission lines.

9 Broadly I think that was the gist of my

10 testimony. But that has been some years ago and I

11 would really have to review it again.

12 Q. When you say impacts, can you be more

13 specific? What types of impacts you were looking at?

14 A. Any impacts to vegetation or wildlife

15 species.

16 MR. KOBELINSKI: When you come to the end

17 of this area, can we take a break?

18 MR. NETTLETON: Yes. Just a couple of

19 more questions.

20 BY MR. NETTLETON:

21 Q. Did you also analyze impacts from siting

22 the lines through the EAA?

23 A. Some of the lines went through the EAA so

24 to the extent that they went through the EAA I

25 considered that in the analysis.

1 Q. What type of impacts were you looking at

2 for the lines in the EAA area?

3 A. As I recall, generally there were less

4 impacts to a line that went through already cleared,

5 altered sugar cane fields than through areas within

6 the conservation area.

7 Q. But my question is, though, what impacts,

8 impacts on what were you looking at for the line

9 going through the sugar cane fields?

10 A. I guess I don't understand your question.

11 Q. You indicated that you found less impacts

12 of the lines through the EAA sugar cane fields than

13 through the WCAs. And my question is what type of

14 impacts were you looking at for the location of the

15 lines through the EAA sugar cane fields, if any.

16 A. As I recall, I was looking at the same set

17 of criteria that I was looking at for the lines going

18 through the conservation areas, that is, were there

19 any wetlands associated or impacted or potentially

20 impacted, were there any threatened or endangered

21 species potentially impacted or not impacted.

22 Q. Did you evaluate any economic impacts in

23 your analysis?

24 A. I believe there was testimony on that in

25 the hearing but that was not part of my analysis, I

1 don't believe.

2 Q. Did someone else from BDA provide economic

3 impact testimony in the case?

4 A. Not that I recall.

5 Q. Can you just generally describe for me the

6 time frame that was involved in your vegetative

7 mapping and/or analysis for that project?

8 A. You mean what year it was?

9 Q. Approximately.

10 A. I don't recall the specific year. It

11 would have been in, I believe, the '87 to '89 time

12 period.

13 Q. Did you issue any reports summarizing your

14 conclusions or opinions as a result of your study in

15 that case?

16 A. Not that I recall.

17 Q. Do you recall issuing any type of

18 vegetative map as a result of your work in that

19 particular case?

20 A. We prepared some exhibits for that case

21 which I believe had some level of vegetation analysis

22 conducted with it.

23 Q. Am I correct that whatever documentation

24 you have with regard to that case was not produced in

25 your production of documents for your deposition here

1 today?

2 A. No, it wasn't, to my knowledge.

3 MR. NETTLETON: Let's take a break.

4 (Thereupon, a brief recess was taken,

5 after which the following proceedings

6 were had)

7 BY MR. NETTLETON:

8 Q. Dr. Dennis, again, other than what

9 research has been conducted specifically for the

10 issues involved here, have you personally been

11 involved in any research other than in the Everglades

12 that directly relates to the subject matter of your

13 expected testimony in this case?

14 MR. KOBELINSKI: I object to the form to

15 the extent you are qualifying it with directly

16 relates. But proceed.

17 A. I have conducted botanical studies and

18 wetlands studies and wetlands analyses throughout

19 various areas in the eastern United States over the

20 past 20 years or more.

21 I will be drawing and relying on that

22 experience in forming my conclusion regarding this

23 matter.

24 As to any specific published study that

25 was done on the specific issues at litigation here, I

1 can't recall any at this time.

2 Q. I wasn't writing fast enough. You said

3 botanical studies and then something else before

4 wetland analysis and I didn't catch that.

5 A. Perhaps the court reporter can read it

6 back.

7 (The portion referred to was

8 thereupon read by the reporter

9 as above recorded)

10 MR. NETTLETON: Mark that.

11 (Dennis Deposition Exhibit 1 was marked

12 for identification)

13 BY MR. NETTLETON:

14 Q. Dr. Dennis, we have marked as Dennis

15 Exhibit 1 a copy of the professional resume of W.

16 Michael Dennis, Ph.D. that was provided by the

17 League's counsel in this case.

18 Can you tell me whether this is the most

19 current version of your professional resume?

20 (Pause)

21 A. Yes, it appears to be.

22 Q. My confusion about the corporate status of

23 BDA was derived from the reference to partner on the

24 first line under experience. Is that essentially

25 just indicating that you became a shareholder in

1 approximately 1984 or did the corporate status change

2 from a partnership?

3 A. The company has always been a Florida

4 corporation. There was a change in the ownership

5 structure of Breedlove Associates then to be

6 Breedlove, Dennis & Associates in the 1984 time

7 frame.

8 Q. Under the first listing of projects and

9 responsibilities, the reference is made to vegetation

10 analysis. Can you tell me what you mean by

11 vegetation analysis?

12 MR. NETTLETON: Off the record.

13 (Discussion off the record)

14 A. I believe you were asking what vegetative

15 analysis meant as indicated on my resume

16 That essentially refers to analysis of

17 individual plants and plant communities, or plant

18 communities, the identification and mapping of those

19 and study of any of the various factors that may be

20 defined in those vegetative communities or the plant,

21 particular plant as it relates to why they are there,

22 what may be influencing their occurrence or

23 distribution.

24 BY MR. NETTLETON:

25 Q. Am I correct that the reference to

1 wetlands jurisdictional evaluations is essentially

2 what we discussed earlier, your analysis as to

3 whether a particular piece of property constitutes a

4 wetlands under the applicable statute being looked

5 at?

6 A. That's correct.

7 Q. In the next three lines, paragraphs, I

8 should say, concerning wetlands evaluations for the

9 various mining activities, can you tell me what types

10 of wetlands evaluations you are referring to?

11 A. During my tenure at Breedlove Associates

12 or Breedlove, Dennis & Associates I have worked on

13 various mining projects which dealt with anything

14 from identification of regulatory wetland

15 jurisdictional lines to assist in planning of the

16 mine to development of mitigation plans and

17 proposals, monitoring plans and functional analyses

18 of the wetlands for various state or federal permits.

19 Q. And those would be the basic subject

20 matters included within your term wetlands

21 evaluations?

22 A. Generally, yes.

23 Q. How do you define a wetland?

24 A. Generally as the term is used now, wetland

25 is as much or more a term of law and policy as it is

1 of science.

2 So when I think of the term wetland I

3 think about whether or not it is a wetland under the

4 jurisdiction of the Corps of Engineers under Section

5 404 of the Clean Water Act or whether it is a wetland

6 under the jurisdiction of the Department of

7 Environmental Protection under Chapter 403 of the

8 Florida Statutes, or a wetland under chapter 373,

9 Florida Statutes, regulated by one of the water

10 management districts, or whether it is a wetland

11 defined by some local government or whether it is a

12 wetland defined by the department of community

13 affairs.

14 In a broader sense I also think of

15 wetlands in a more scientific concept.

16 Q. What is your scientific definition of a

17 wetlands?

18 A. I think of wetlands in the context of

19 whether it is a marsh, forested flood plain, cypress

20 dome, bay head, a wet prairie, a cypress slough, a

21 perched forested wetland or a perched herbaceous

22 wetland, a wetland associated with a river or lake,

23 more of the traditional scientific characterizations

24 of wetland types.

25 Q. In a scientific definition would you

1 include the types of natural processes that are

2 occurring in a particular area in determining whether

3 a land is a wetland?

4 A. Typically wetlands have vegetation and

5 soils and hydrology that are all linked and the

6 hydrology actually dictates the vegetation and the

7 soils, and a wetland is generally an area where for

8 some portion of the year the soils are saturated or

9 flooded, and typically you have anaerobic conditions

10 present.

11 Q. From a scientific standpoint how would you

12 define a marsh, and specifically a freshwater marsh?

13 A. The essential elements of a marsh are that

14 it be, as I described, wet for some period of the

15 year and be vegetated by herbaceous emergent species,

16 non-forested. A marsh is a non-forested wetland.

17 Q. In referring to Exhibit 1, the next

18 paragraph makes reference to vegetation mapping of

19 plant communities in a number of states.

20 Other than the work that you have done

21 specifically related to the issues in this case, can

22 you tell me what other vegetation mapping of plant

23 communities that you have done in Florida?

24 A. I have either mapped or participated in

25 mapping approximately a hundred thousand acres in

1 North Florida. I have mapped numerous tracts,

2 anywhere from a few acres to thousands of acres in

3 size in central Florida.

4 I have mapped or assisted in mapping about

5 26,000 acres in Volusia County.

6 I have mapped various parcels of varying

7 sizes in northwest Florida.

8 I participated in mapping the wetlands in

9 the City of Panama City.

10 I have mapped or participated in mapping

11 the wetlands for the City of Daytona Beach.

12 I have mapped or participated in mapping

13 areas in southeast Florida, Dade, Broward, Palm Beach

14 County.

15 Over the past 12 or 13 years I have mapped

16 parcels throughout just about all of Florida.

17 Q. Other than Panama City and the City of

18 Daytona Beach, and your work in the current case,

19 what other wetlands have you been involved in

20 mapping?

21 MR. KOBELINSKI: In Florida?

22 Q. Start with Florida.

23 A. All of the areas that I described in the

24 last answer had wetlands associated with them, so

25 wetlands were a part of those vegetation mapping

1 projects.

2 Q. Do you recall which if any of those

3 involved marsh communities?

4 A. Most of them involved marshes and forested

5 wetlands.

6 Q. The last item on the first page of Exhibit

7 1 makes reference to service on a technical committee

8 advising the Senate Natural Resources Committee. Am

9 I correct that makes reference to the Florida Senate

10 committee?

11 A. That's correct.

12 Q. Did you have a particular client that you

13 were serving on that committee?

14 A. As I recall, this was in the late 1983 or

15 1984 time period when the State of Florida was

16 considering developing a new wetland delineation

17 methodology which was ultimately consummated in the

18 Warren S. Henderson Wetland Protection Act.

19 As part of that process the Senate Natural

20 Resources Subcommittee convened a group of scientists

21 that was involved in wetlands and wetland

22 delineations and wetland work, if you will, in

23 Florida at that time. And I served on that committee

24 and we took up several issues or whatever issues the

25 Natural Resources Subcommittee asked us to look at.

1 Primarily it was dealing with development of a

2 wetland species list and a wetland methodology.

3 I worked on that, with that committee,

4 with that group. As I recall, part of that time or

5 part of the overall wetland rule making process that

6 was under way at that time, I was working for various

7 landowners and some of the time was spent basically,

8 providing technical assistance to that subcommittee.

9 Q. Were you representing a particular

10 interest group of some sort while you were serving on

11 the committee?

12 A. The deliberations of the committee at that

13 time as I recall were basically involved in

14 determining within the statutory definition of waters

15 of the state which was operative at that time what

16 plant species were reflective of that statutory

17 definition.

18 So that was our general charge, was to try

19 to look at that issue.

20 The committee was formed, I assume, based

21 on the makeup of it, of representatives that worked

22 with different sectors of clients. And it was

23 well-known that I had worked with private landowners

24 and the development industry.

25 So I wouldn't characterize it as

1 representing them in an advocacy standpoint but more

2 of a, I was the person selected from that, with

3 knowledge of that particular industry to serve and

4 give input in the overall deliberations, plus the

5 fact that the main issues being addressed were

6 botanical, species issues, and that was my background

7 and training.

8 Q. Were you compensated for any of your work

9 related to that committee?

10 A. As I recall, the committee did not -- it

11 has been a long time.

12 As I recall, we received no direct

13 compensation from that committee.

14 Q. Other than the committee, did you receive

15 any compensation from the sector that you

16 historically worked for related to your work on that

17 committee?

18 A. I received compensation from certain

19 clients that I was working with at that time for

20 representation -- for reviewing and presenting

21 comments on their behalf through the wetland rule

22 making process.

23 The specific meetings and deliberations of

24 that committee, I don't recall specifically how the

25 time was divvied up. In other words, there were

1 certain tasks and certain presentations and certain

2 analyses in that time period of that rule making

3 which were -- I was specifically asked to do by the

4 clients that I was working with. And they

5 compensated me for that.

6 There were other activities involving

7 perhaps this committee or other forums in which I may

8 or may not have been compensated for by somebody to

9 attend.

10 Q. During that time period was the Florida

11 Sugar Cane League one of your clients?

12 A. I don't believe so, no.

13 Q. Do you recall when the Florida Sugar Cane

14 League first became a client of BDA?

15 A. The company may have done some work prior

16 to my coming to the company with various of the sugar

17 companies, but I was not involved in that and I don't

18 have any direct knowledge of it. I just seem to

19 recall that perhaps the company had had some projects

20 with some of the landowners, and I don't recall which

21 ones that were involved in sugar production here in

22 South Florida.

23 My earliest recollection of working with

24 the Sugar Cane League that I can recall as I sit here

25 today was involving that power line siting study that

1 we talked about earlier.

2 Q. And your work on the technical committee

3 for the Senate committee, did you yourself provide

4 any testimony to the committee?

5 MR. KOBELINSKI: Which committee?

6 MR. NETTLETON: The Senate committee,

7 Natural Resources Committee.

8 A. Again, we are going back a decade, and

9 there were a lot of meetings in Tallahassee and I am

10 not sure that I can fully fathom which meetings were

11 agendaed specific meetings of the committee or which

12 were less formal meetings.

13 I did present presentations at some of

14 those meetings and I believe that I may have -- I

15 believe that I may have presented some testimony

16 before the full body of the Senate Natural Resources

17 Committee. But I don't recall for absolute sure.

18 Q. Did the technical committee ultimately

19 issue a report containing any recommendations to the

20 Senate committee?

21 A. It may have. It may have. I don't

22 specifically recall.

23 As I think, I recall there may have been a

24 compilation of the work of that committee that was

25 presented.

1 Q. Approximately how many members were on the

2 technical committee?

3 A. A half a dozen or so, as I recall.

4 Q. Do you recall whether the recommendations

5 that were made to the Senate committee were unanimous

6 or non-unanimous?

7 A. I don't recall.

8 Q. Do you recall from your experience on the

9 committee whether you ever disagreed with any

10 recommendations made by the technical committee to

11 the Senate committee?

12 A. I don't recall exactly what the

13 recommendations, the full scope and detail of all the

14 recommendations were.

15 I know in our deliberations it was not

16 unusual to have disagreements within the committee

17 concerning whether a particular species should be on

18 the list or not, that sort of thing.

19 Q. What was your role in the wildlife

20 advisory group appointed by the DCA?

21 A. That was a technical advisory committee

22 that was appointed by the DCA secretary who was Tom

23 Pelham at that time. And the committee was convened

24 to consider recommendations, suggestions to the

25 Department of Community Affairs relative to wildlife

1 and threatened and endangered species and upland

2 habitat issues, primarily for consideration in the

3 DRI process

4 Q. What was your specific role in that group?

5 A. My role was to participate as a member and

6 attend the meetings and provide suggestions, input,

7 whatever experience I might be able to provide

8 relative to how to deal with those kinds of issues

9 that I described.

10 Again, I think it was focused primarily on

11 DRI type issues. So we had committee meetings and

12 DCA would bring a set of agenda in and the group

13 would discuss the agenda and the items that DCA

14 brought up. And then that would lead to the

15 formulation of an agenda for the next meeting. It

16 sort of progressed.

17 Q. In the next paragraph on page 2 of Exhibit

18 1 it reads, "expert witness testimony-qualified in

19 wetlands evaluation and jurisdictional

20 determinations, botanical indicators of ordinary high

21 water line determinations, terrestrial wetlands

22 ecology, threatened and endangered species surveys."

23 Are these the areas that you consider

24 yourself qualified in to give expert testimony?

25 MR. KOBELINSKI: What forum?

1 MR. NETTLETON: What?

2 MR. KOBELINSKI: In what forum?

3 MR. NETTLETON: Any forum.

4 A. These are the general broad categories

5 that I have been qualified in, either these or

6 subsets of these in various of the litigations that I

7 have provided expert witness testimony in.

8 Q. Are there any other areas other than those

9 listed here that you consider yourself qualified to

10 provide expert testimony in?

11 A. There may be. These are the general areas

12 and general categories that I provide testimony in.

13 Q. As we sit here today can you think of any

14 other areas you believe yourself to be qualified in

15 for the purposes of providing expert testimony?

16 MR. KOBELINSKI: Are you referring to

17 other than those indicated on his resume?

18 MR. NETTLETON: Correct, under that

19 paragraph we just read into the record.

20 A. As I stated, these are the general areas

21 which might be applied to various litigation matters.

22 So these are the general areas. The only other one

23 that I might qualify that I can think of right now is

24 in the area of regulatory permitting. I believe I

25 have been qualified in one or two proceedings in that

1 area.

2 Q. What do you mean by regulatory permitting?

3 A. Just the process of permitting, dredge and

4 fill permitting, someone having experience in the

5 permitting process.

6 Q. Have you specifically provided testimony

7 as an expert in the process itself, on the process

8 itself?

9 A. I believe so. In each proceeding the

10 specific area of qualification is determined. So

11 each one varies a little bit depending on the case

12 and the issues. But these are the general areas.

13 Q. In these general areas that you mentioned,

14 with the addition of regulatory permitting, can you

15 tell me which of these areas you are specifically

16 drawing on for your testimony that you expect to

17 present in this case?

18 A. I would expect to draw on wetlands

19 evaluations, wetlands ecology, to a degree threatened

20 and endangered species, but primarily wetlands

21 evaluations and wetlands ecology.

22 MR. KOBELINSKI: Counsel, again, just so I

23 understand, are you narrowing him to just that one

24 paragraph or are you referring to the entire resume?

25 MR. NETTLETON: That was what my question

1 was.

2 MR. KOBELINSKI: Okay.

3 BY MR. NETTLETON:

4 Q. During your experience at TVA did you have

5 any involvement with snail darter controversy?

6 A. A peripheral involvement.

7 Q. Can you explain that peripheral

8 involvement briefly?

9 A. Yes, sir, I did. The snail darter

10 controversy was being played out during my tenure at

11 TVA and it involved the impoundment of the Little

12 Tennessee River.

13 One of my duties at TVA was to look at and

14 investigate what plants, either aquatic or wetland

15 plants, were growing in what water bodies within the

16 Tennessee Valley area. So I investigated rivers,

17 reservoirs, isolated wetlands, whatever wetlands or

18 water bodies occurred in the TVA Valley.

19 I was assigned to do an aquatic plant

20 survey of the Little Tennessee River in the year or

21 so before it was scheduled to be impounded.

22 And I conducted that survey by airboat

23 through the river and collected the plant species

24 that I could find growing in there and cataloged

25 them.

1 I was then asked to conduct the first

2 plant, aquatic plant and wetland survey of the

3 impounded area after it was impounded.

4 So I was not directly involved in the

5 snail darter controversy per se, but I was involved

6 in that project to the extent that I investigated

7 certain of the acquatic and wetland plants of the

8 river before and after the impoundment.

9 There was quite a difference.

10 Q. I just couldn't resist the question.

11 Sorry.

12 A. Incidentally, we found many interesting

13 plant species in that river, and reported that, but

14 it didn't seem to make any difference to the federal

15 government at that time.

16 Q. As I say, that's another story.

17 A. Quite.

18 Q. Looking at page 3 of Exhibit 1, it

19 indicates that you are a faculty associate with the

20 University of Tennessee.

21 What is a faculty associate?

22 A. That is a position that I hold in that

23 periodically I go to the University of Tennessee and

24 teach a course in aquatic and wetland plants. I

25 teach that course, oh, averaging probably once every

1 two years. So I participate with the botany

2 department at the University of Tennessee in that

3 fashion.

4 Q. When was the last time you taught that

5 course at Tennessee?

6 A. I believe it was the year before last.

7 Q. Do you recall what textbooks that you used

8 in that course, if any?

9 A. I usually bring a number of texts in and

10 have those available and use them. Texts that I have

11 used include, one year I used Beal's Flora of Aquatic

12 and Wetland Plants in North Carolina, that is not the

13 exact title but it is something like that.

14 I have brought in various texts on aquatic

15 plants by Menscher, Fasset, Haslam. It is a

16 graduate/undergraduate level course so we use various

17 texts and papers and bibliographies in that.

18 Q. You have a heading on page 4 of Exhibit 1

19 of Selected Publications. Can you tell me whether

20 the list of publications which goes from page 4

21 through the end of the professional resume is or is

22 not a complete list of your publications?

23 A. It is either complete or relatively

24 complete.

25 Q. In the Breedlove, Dennis 1984 reference

1 can you tell me what ASTM, STP 843 is?

2 A. ASTM refers to the association of testing

3 and materials and that was a technical publication,

4 that was actually a paper from the technical

5 publication that I was the editor of.

6 Q. What is standard 843 or procedure?

7 A. Well, it was the, what at that time as I

8 recall was the water section and there was a

9 subsection on macrophytes.

10 Q. The next paper listed was published in

11 Environmental Land Use Law Section Reporter. Is that

12 the reporter associated with the Florida Bar

13 Association?

14 A. Yes, it is.

15 Q. Do either you or is it Dr. Breedlove?

16 A. Mr. Breedlove.

17 Q. Mr. Breedlove, do either of you have any

18 legal, formal legal educational background?

19 A. No.

20 Q. In the reference Dennis 1979 on page 5, if

21 I pronounce it wrong, what is Clematis? Is there a

22 common name so I know what I am talking about?

23 A. You say "Clematis," I say "Clematis."

24 Q. There ought to be a song in that

25 somewhere.

1 A. That was viny species that has members

2 that occur throughout, or the genus occurs worldwide

3 but the particular group that this species is a

4 member of occurs primarily in the southeastern US

5 from Virginia to west Texas. Its common name is

6 either Clematis, Clematis or -- its got various

7 common names in different parts depending on the

8 species. It is not a very common species.

9 Q. The '79 reference, was this a particular

10 variety that you had created or discovered?

11 A. That's correct.

12 Q. Where was that discovered?

13 A. That was as part of my doctoral

14 dissertation.

15 Q. What geographic area?

16 A. That particular one occurs in west Texas

17 in the Big Bend Davis Mountain region.

18 Q. The 1988 reference which indicates it is

19 in review, is that particular article still in

20 review?

21 A. I don't think so. In fact, I would assume

22 it is not. It was a paper that I had prepared and

23 that was essentially the last paper out of my

24 doctoral work. I published four, five papers and

25 this was essentially the last one. And I got it as

1 far as manuscript and sending it in and then I

2 believe -- I don't recall specifically but I believe

3 that I got some comments back and other items became

4 more pressing and I never have followed up with

5 finalizing the publication of it. So when this

6 particular resume was prepared it was probably in

7 review, but I don't think that it is actively in

8 review right now.

9 Q. So that was never accepted for

10 publication, then?

11 A. No.

12 Q. The Dennis-Breedlove 1983 reference,

13 second from the bottom, can you tell me what the

14 drainage basin approach was generally for wetlands

15 reclamation?

16 A. Yes. That was a paper that we did back in

17 1983 in which we were proposing that, and this was in

18 the context of phosphate mining reclamation, we were

19 proposing that instead of individual small

20 reclamation plans or some of the wetland creation

21 mitigation that was being performed at that time,

22 that instead of that, that a more meaningful

23 alternative approach to mitigation would be to look

24 at the drainage basin in which the impacts were

25 occurring and the activities were occurring, and

1 attempt to construct or reconstruct, in essence, a

2 functioning drainage basin.

3 So it had basically two elements, one is

4 to take a drainage basin approach and figure what

5 aspects of plant communities and therefore habitat

6 would be most meaningful and beneficial to have in

7 that basin, and do that kind of analysis, and then

8 also in reconstructing the landscape, if you will,

9 come up with a basin type approach to that rather

10 than the individual mitigation concepts that were

11 being used at that time.

12 I believe this has since become accepted

13 as the appropriate way to go in those reclamation

14 projects.

15 Q. Is this directed more to mitigation plans?

16 A. It is -- it encompasses mitigation and

17 reclamation and restoration, all of those kinds of

18 activities.

19 Q. My question is, is this approach that you

20 referred to in this particular article or report for

21 purposes of establishing wetlands simultaneously with

22 phosphate mining in the same drainage basin or were

23 you looking to restore wetlands in former mining

24 locations?

25 A. I don't recall. I recall it is describing

1 it as an approach that considered both the

2 reclamation and mitigation, which are two different

3 things, that those processes are considered on a

4 drainage basin approach and scale, if you will,

5 rather than a patchwork group of reclamation

6 activities or mitigation activities, which may not

7 have any tie or rational nexus to one another.

8 Q. The last publication listed on page 5, the

9 Dennis 1984, can you tell me if, other than the

10 abstract that is referenced there, was a fuller or

11 complete report prepared with regard to that matter?

12 A. I don't believe so, no.

13 Q. Do you have a copy of that abstract in

14 your possession? I don't mean with you here today.

15 A. I would hope that somewhere in the office

16 there is still a copy of that abstract, but I don't

17 know for absolute sure.

18 MR. KOBELINSKI: Can we take a quick

19 break?

20 MR. NETTLETON: Sure.

21 (Thereupon, a brief recess was taken,

22 after which the following proceedings

23 were had)

24 BY MR. NETTLETON:

25 Q. Turning to page 6 of the resume.

1 A. Yes, sir.

2 Q. The first listed reference there, the

3 Dennis et al. '87, is listed as a presentation.

4 Was there an actual report or abstract

5 related to that presentation?

6 A. There was, as I recall, an abstract for

7 it. Yes, sir, that was a -- yes.

8 Q. Do you know if you or BDA has possession

9 of that abstract?

10 A. As with the last one, I would hope that

11 somewhere in our files we still have copies of those,

12 but I don't know for sure.

13 Q. Could you just identify the acronym in

14 that convention for the record? You are referriing

15 to ASPRS/ACSM.

16 A. That was a joint convention which is held

17 in Maryland in '87 and I did present that paper. I

18 can't recall specifically the association. It was an

19 association of basically photometric analysts and

20 cartographers and surveyors, that kind of group, as I

21 recall.

22 Q. Going down the page to Dennis et al. 1984,

23 the ecological assessment of macrophyton collection,

24 use and meaning of data, is a symposium.

25 Can you tell me what your contributions

1 were to that symposium?

2 A. Yes. I chaired or jointly chaired that

3 symposium, solicited papers, edited the papers and

4 worked with the ASTM staff on producing a technical

5 volume out of that symposium. And I also presented

6 and authored or co-authored several papers in it.

7 MR. NETTLETON: Mark that, please,

8 A. That spurs my memory, thinking of these

9 papers, some of which dealt with remote sensing.

10 Photointerpretation, remote sensing in a certain

11 sense is an area that I have given testimony in

12 before.

13 I don't remember the exact qualification.

14 I am not a cartographer and I am not a registered

15 photogrammetrist, but I have had testimony accepted

16 where I have provided photointerpretation of aerial

17 photography before, just for clarification.

18 Thank you.

19 (Dennis Deposition Exhibit 2 was marked

20 for identification)

21 BY MR. NETTLETON:

22 Q. Dr. Dennis, showing what has been marked

23 as Dennis Exhibit 2, are these two of the abstracts

24 that were included in that particular symposium that

25 we just discussed that were authored or co-authored

1 by you?

2 (Pause)

3 A. Yes.

4 Q. Referring to the first page, in the first

5 abstract, it seems to suggest that the original from

6 the page references there from 100 to 111 was some 12

7 pages long. Would that be accurate or am I

8 misreading this?

9 A. I believe that's what that refers to.

10 Q. So is what is reflected on these computer

11 generated pages a summary of your original submission

12 to the symposium?

13 A. This appears to be a data base search copy

14 of that paper and the summary is the abstract that we

15 prepared for that paper.

16 Q. So the paper itself included in the

17 materials for the symposium was approximately 12

18 pages, then?

19 A. According to this, if this is correct, and

20 I assume it is, it would be about 12 pages.

21 Q. Turning to the second page, am I correct

22 also that the same would apply to that, that the

23 actual report itself was approximately five pages?

24 A. That would be my assumption, yes.

25 Q. Do you or BDA have possession of the

1 original or a copy of the symposium materials which

2 contain these reports?

3 A. The last time I looked for a copy of this

4 I still had a copy of this symposium volume in my

5 bookcase.

6 Q. Other than these two reports that are

7 reflected on Exhibit 2, do you recall authoring or

8 co-authoring any other papers for that symposium?

9 A. I believe these are the only two. I would

10 have to refer to the symposium volume to be

11 absolutely sure. But my recollection are these are

12 the two I authored or co-authored.

13 Q. Going back to Exhibit 1 on page 6 and

14 referring down to the item, Bates et al. 1978 which

15 was a meeting, was there a report of any form that

16 was created for purposes of that meeting?

17 (Pause)

18 Q. For the record, I am specifically

19 referring to the second of the Bates et al. 1978.

20 A. I believe there was.

21 Q. Do you know if you or BDA has a copy of

22 that particular report?

23 A. I am not sure.

24 Q. There are a couple of references in your

25 list, listed under your selected publications to

1 controls and plans for controls of Hydrilla. What

2 was your involvement in Hydrilla control?

3 A. When I was employed by the Tennessee

4 Valley Authority one of of my responsibilities and

5 duties had to do with assessing aquatic macrophyte

6 problems within the TVA system. And at that

7 particular point in time we were very concerned that

8 Hydrilla which had become an extremely serious

9 problem in Florida, would become introduced into the

10 reservoirs of the Tennessee Valley and become a

11 significant aquatic plant pest.

12 So we were involved and I was involved in

13 coordinating with various researchers who were

14 working on Hydrilla during that time period to

15 determine what was the status of their research on

16 Hydrilla spread, control, methods of study. So that

17 had to do with a concern that TVA had at that time

18 for trying to do everything that could be done

19 practically to educate fishermen, people that use the

20 reservoirs to try to make every effort to keep it,

21 Hydrilla, from being introduced into the TVA

22 reservoir at that time.

23 Q. Was or is Hydrilla considered an exotic

24 species in that area?

25 A. Yes.

1 Q. Did you determine what the cause of the

2 spread of Hydrilla was?

3 A. Where?

4 MR. KOBELINSKI: Where?

5 Q. In the Tennessee area.

6 A. Hydrilla had not been found in the TVA

7 system while I was there. It was subsequently

8 discovered after I left.

9 Q. It wasn't your fault?

10 A. It was not my fault and I've always

11 contended that I did a good job of keeping it out

12 while I was there.

13 Q. You mentioned a few minutes ago that you

14 had provided testimony in the area of

15 photointerpretation and remote sensing.

16 Can you tell me how many times you have

17 provided testimony in that area?

18 A. I don't recall a specific number.

19 Q. When was the last time you presented

20 testimony on photointerpretation and remote sensing?

21 A. I don't recall.

22 Q. Within the last year, two years?

23 A. I don't recall any within the last year.

24 Q. Do you recall any particular cases in

25 which you have provided testimony on

1 photointerpretation and remote sensing?

2 A. As I recall how that topic has arisen is

3 that in some cases where vegetation mapping from

4 aerial photography has been a part of the case and

5 part of the exhibits there was a determination made

6 that I was qualified and experienced to do that

7 photointerpretation and have those exhibits entered.

8 Q. Are you referring to a specific case? Was

9 it in a court or an administrative proceeding?

10 A. I can't recall specifically which case or

11 cases, I believe it is cases that issue has arisen.

12 I just don't recall.

13 Q. In that case or cases what was your

14 involvement in creating the vegetative maps that were

15 used as exhibits, if any?

16 A. Basically it was obtaining the aerial

17 photographs and then photointerpreting the vegetation

18 signatures on the specific set of photography

19 delineating the vegetation boundaries and producing

20 exhibits that were then entered into evidence in

21 those proceedings.

22 Q. Did you provide any such testimony in the

23 power line siting case that you worked on for the

24 Florida Sugar Cane League?

25 A. As I recall, we took color infrared aerial

1 photographs of the transmission line alternatives and

2 there was some level of vegetation mapping done on

3 those or some photo base. Again, as I said earlier,

4 I don't remember the specifics of that beyond that.

5 Q. The case or cases that is in your

6 recollection that you were qualified to provide

7 testimony, was that something other than the power

8 line case you were thinking of?

9 A. Yes, I believe so.

10 Q. Was that while you were at BDA?

11 A. Yes.

12 Q. Do you know whether it was in the last

13 five years?

14 A. I honestly don't recall.

15 Q. Do you recall who your client was in that

16 case?

17 A. No. If I could recall the client I would

18 be able to recall the case.

19 Q. Do you recall what the subject matter of

20 the case was?

21 A. My only recollection right now is that in

22 some case or cases in the past there has been the

23 question of qualification to photointerpret aerial

24 photography. And I have been qualified in that

25 proceeding or proceedings to render an opinion and

1 introduce into evidence the photointerpretations that

2 I did for the case. The photointerpretations would

3 have had to do with vegetation mapping, probably both

4 upland and wetland vegetation mapping.

5 If I could recall the case I would gladly

6 tell you what it is. I just don't recall.

7 Q. Have you ever testified as an expert in

8 any case with regard to interpretation of remote

9 sensing data from satellite imagery?

10 A. I have some background and experience in

11 that area but I have never testified in that

12 capacity, no.

13 Q. In your previous testimony when you first

14 mentioned this you qualified it by stating that you

15 were not, I believe, a registered photographer?

16 A. Photogrammetrist.

17 Q. Photogrammetrist. And you mentioned

18 something else too that I didn't catch.

19 A. Cartographer.

20 Q. What is a cartographer?

21 A. Basically that's a discipline that

22 involves making maps, the specific procedures of map

23 making.

24 Q. And what is a photogrammetrist?

25 A. It is someone who analyzes and interprets

1 aerial photography. And there is a specific society

2 and registration for someone who does that.

3 Q. When you say a registered

4 photogrammetrist, where is the registration? Is that

5 a state level or a national level?

6 A. It is a society. There is a society

7 registration.

8 Q. Is there a similar designation for a

9 person who analyzes remote sensing data from

10 satellite as opposed to aerial photography?

11 A. There may be certifications or specialty

12 certification that deals with remote sensing data,

13 but I am not aware of it. I know that there are

14 particular specialties in that photogrammetry

15 certification.

16 Q. In the case that you vaguely recall that

17 you provided testimony in the area of, in this

18 particular area, do you recall whether your

19 qualifications in that case to provide that testimony

20 were in fact challenged?

21 A. I believe they were. I think that's why I

22 have memory of that.

23 There is not a mystery here. I am just

24 trying to explain that I have been qualified and I do

25 consider myself qualified to photointerpret aerial

1 photographs to determine vegetation types and

2 signatures, whether uplands or wetlands, and I have

3 been so qualified in various hearings.

4 I am not and have not been qualified as a

5 specific registered photogrammetrist and I am just

6 trying to make that distinction. That's all.

7 Q. When you first became involved, and I want

8 to separate out the power line siting in my question,

9 when you first became involved in any work for the

10 Sugar Cane League with regard to the issues in this

11 matter, do you know whether or not BDA was already

12 doing work for the League on such issues?

13 A. BDA was not doing work for the League

14 before this --

15 Q. Let me clarify my question, maybe.

16 A. Thank you.

17 Q. Do you know when BDA was first retained by

18 the League or its counsel to provide services related

19 to the issues in this case?

20 A. Yes.

21 Q. Other than the power line siting?

22 A. Yes.

23 Q. When was that?

24 A. BDA was retained in the fall of 1989 by

25 the law firm of Peeples Earl & Blank. And it is my

1 understanding that the clients that we were

2 representing through them as counsel were the Sugar

3 Cane League and various of its member companies.

4 Q. Were you the person who was contacted at

5 BDA concerning the matter?

6 A. Yes, I was.

7 Q. Do you recall who contacted you?

8 A. Yes, I do.

9 Q. Who was that?

10 A. William Earl.

11 Q. As a result of that contact was any type

12 of contract or written agreement entered into between

13 BDA and either Peeples Earl & Blank or their clients,

14 Florida Sugar Cane League et al.?

15 A. We were retained to work on these matters

16 by Peeples Earl & Blank. I don't recall a specific

17 contract. To the best of my recollection I remember

18 reviewing some confidentiality agreement. That's

19 what I can remember right now.

20 Q. As far as to your knowledge there is no

21 written contract between Peeples Earl, that is

22 probably not the right name anymore, but the League's

23 lawyers and BDA, other than a confidentiality

24 agreement?

25 A. There may have been, but I don't

1 specifically remember it.

2 Q. When Mr. Earl first contacted you what

3 tasks were assigned to you or to BDA?

4 A. As I recall, the first task that I was

5 assigned was to investigate cattail, specifically the

6 occurrence and possible spread of cattail in the

7 WCA-2/WCA-1 area, in and around the 10 structures.

8 Q. After that initial task I assume other

9 tasks were developed over time, is that correct?

10 A. That's correct.

11 Q. Can you tell me the other tasks that were

12 ultimately assigned to you or to BDA by Mr. Earl or

13 his firm?

14 A. Generally I was assigned the task of

15 working with the attorneys at what was then PEB --

16 Q. Another acronym.

17 A. -- and the Sugar Cane League

18 representatives in addressing the concerns that had

19 been raised at that time and that were popularized in

20 many newspaper articles that were published

21 concerning the rapid spread of cattails throughout

22 the Everglades.

23 Subsequently we were asked to perform

24 various investigations in response to specific issues

25 that were being raised in the various litigations

1 that were ensuing.

2 Q. I would like to go through those if we can

3 and to the best of your recollection tell me those

4 specific issues you were asked to investigate.

5 A. The areas that we were asked to

6 investigate that relate to the issues that were being

7 raised at various times deal with the occurrence and

8 spread of cattail and an evaluation of why cattail

9 was growing where it was growing.

10 At one point we were investigating the

11 food web issue, because the theory was that cattail

12 was marching through all of the Everglades and would

13 soon become a monoculture and therefore all of the

14 Fish and Wildlife values would be decimated. So we

15 were investigating or compiling, trying to put

16 together information on the food web of the

17 Everglades to see whether or not that indeed was or

18 could be happening.

19 We were asked to look at periphyton

20 communities, and Dr. Bud Smart who is listed as a

21 witness in this proceeding, I believe, was at BDA at

22 that time when that work began. And he's continued

23 that as he has gone back to North Carolina.

24 An issue of microbial and fungal

25 relationships came up, and Dr. Courtney Hackney who

1 was at BDA at the time has also since gone back to

2 North Carolina to academia, was asked to investigate

3 that. And I believe he is also listed as a witness

4 in this proceeding.

5 We were asked to evaluate various reports

6 and documents over the years that came either from

7 studies done by the federal government or the Water

8 Management District or other scientists.

9 We were asked to review the various SWIM

10 plans as they were produced over the years.

11 We were asked to provide testimony at a

12 hearing in which the Sugar Cane League was attempting

13 to get access to the Loxhatachee Wildlife Refuge and

14 Everglades National Park to conduct sampling.

15 We were asked to attend various meetings

16 or symposia over the years that related to the

17 Everglades or research that was being done in the

18 Everglades.

19 We were asked to investigate other

20 vegetation changes that may have occurred in the

21 Everglades in past or ongoing now.

22 As I recall, those are the primary areas.

23 There may be some others that I have forgotten and I

24 am sure I may think of in the next little bit.

25 MR. KOBELINSKI: Off the record.

1 (Thereupon, a brief recess was taken,

2 after which the following proceedings

3 were had)

4 BY MR. NETTLETON:

5 Q. Dr. Dennis, I would like you again to try

6 and tax your memory and tell me what information in

7 the form of documents has been provided to you by Mr.

8 Earl's firm. And you can do that by category and so

9 forth, if necessary. I just want to get as complete

10 a list as possible of what documentary evidence has

11 been provided to you.

12 MR. KOBELINSKI: I assume you are

13 excluding correspondence and stuff with counsel, you

14 are just talking about documents relating to the --

15 MR. NETTLETON: Substantive documents, at

16 this point.

17 A. I am thinking back on the period from 1989

18 to present, and the categories of documents that have

19 been provided would include Water Management District

20 reports such as the SWIM Plan, the various versions

21 of the SWIM Plan, any supporting documents relating

22 to that, documents that were produced as part of

23 these or preceding proceedings, all those documents

24 that have the little numbers at the bottom of them.

25 MR. KOBELINSKI: Bates numbers?

1 THE WITNESS: In addition to the page

2 numbers.

3 A. Which would include certain scientific

4 papers, certain scientific reports conducted by

5 various scientists including the federal government,

6 the Water Management District, DER, other scientists

7 that have been contracted to work on various aspects

8 of the Everglades, various study plans and contracts

9 for work related to the Everglades that the Water

10 Management District has contracted for or someone is

11 proposing, various of the documents from the

12 different committees such as the Technical Oversight

13 Committee, the SAGE committee, perhaps there are

14 others but those are two that I recall, those

15 category of documents.

16 I don't know that we have been provided

17 all of those but we have been provided some of those

18 when it was in the area that we were interested in,

19 various historical documents concerning the

20 authorization of the original project, certain of the

21 reports and memoranda and authorizations going back

22 to 1948 or, '47, '48 when the project was authorized,

23 pertinent documents that have been obtained through

24 depositions or discovery and document production that

25 pertain to the general areas that I described that we

1 were asked to look at.

2 That gives you a sense or a flavor for

3 what was sent to us by them.

4 Q. Was any substantive information relevant

5 to the areas you described as your tasks provided to

6 you in the form of either memoranda or letter from

7 counsel?

8 MR. KOBELINSKI: Could you repeat that.

9 (The question referred to was

10 thereupon read by the reporter

11 as above recorded)

12 A. I am not sure what you mean by that.

13 Q. What don't you understand about it?

14 MR. KOBELINSKI: Sorry, counsel, if he

15 says he doesn't understand, it is difficult to

16 explain how you don't understand something.

17 Q. What don't you understand about the

18 question?

19 A. I don't understand whether or not you are

20 asking whether the attorneys we worked with sent us

21 specific information on the general tasks we were

22 asked to look at and the issues we were asked to look

23 at beyond what I have already generally described or

24 whether you are asking whether there were specific

25 summaries of technical and/or legal issues provided

1 to us from time to time relative to strategies,

2 approaches, concerning this litigation.

3 Q. I am referring to the latter but not with

4 regard to strategies concerning the litigation but

5 with regard to the scientific tasks that you were

6 undertaking.

7 MR. KOBELINSKI: I am sorry, what is the

8 question then?

9 Q. My original question was were you provided

10 any substantive information in the form of memoranda

11 or letters from counsel which directly related to the

12 various tasks that were assigned to you.

13 MR. KOBELINSKI: Do you understand the

14 question now?

15 THE WITNESS: I understand a question that

16 is in my mind which I will answer, but I don't know

17 whether it is the question --

18 BY MR. NETTLETON:

19 Q. You answer the question as you understand

20 it and if it is not the answer I am looking for then

21 I will ask you another question.

22 A. That's fine.

23 At times we received either letters or

24 memoranda from counsel saying, here is a report which

25 we have received, would you please review this report

1 and discuss it with us.

2 Q. That is not my question. Let me rephrase

3 it.

4 A. I am sorry.

5 Q. Let me try to rephrase it then.

6 Did you receive any information in the

7 form of memoranda or letters from counsel which

8 consisted of either summaries of technical

9 information that was not provided separately or any

10 scientific data or information that was not provided

11 separately that were used or relied upon by you in

12 performing your tasks that you described earlier?

13 (Pause)

14 MR. KOBELINSKI: Counsel, I will interject

15 an objection because I think again, the witness is

16 confused.

17 If I understand what you are asking, so I

18 don't have to interpose a privilege objection, you

19 are asking as opposed to data or documents that we

20 attached or provided the witness, whether or not we

21 provided additional data or information just

22 summarized within letters and not attached and he

23 used data that was enclosed or provided solely in

24 letters or correspondence or memoranda from counsel,

25 is that essentially what you are driving at?

1 MR. NETTLETON: That is that question,

2 yes.

3 MR. KOBELINSKI: Do you understand what he

4 saying?

5 MR. NETTLETON: Now that you confused it.

6 THE WITNESS: I think I understand a

7 question. I will try to answer it again.

8 A. I still may not understand, sir, your

9 seminal question here.

10 We received letters and memos from

11 counsel saying, here is a report, please review it,

12 get back with me and let's talk about what it says

13 and what this may mean.

14 We also received certain reports basically

15 indicating, here, I just want to provide this

16 information to you. An example would be the Duke

17 studies by Curtis Richardson. I recall them

18 providing those to us saying here are these studies.

19 We also received certain memos concerning

20 trial strategies or approaches.

21 MR. KOBELINSKI: You won't discuss those.

22 I will interpose a privilege objection as

23 to those.

24 MR. NETTLETON: He hasn't discussed them

25 yet.

1 MR. KOBELINSKI: I understand that.

2 A. Since I have not done a very good job of

3 being responsive to your question, I am just trying

4 to give you a list of everything in hopes that I will

5 somehow answer it.

6 We also received some summaries of either

7 depositions or work that someone else had done.

8 In none of those cases am I relying on

9 those summaries, but I would be relying on the actual

10 report or the work that was done.

11 BY MR. NETTLETON:

12 Q. Were you asked at any time by your client

13 either orally or in writing to make any particular

14 factual assumptions for purposes of conducting your

15 research?

16 A. Not that I can recall.

17 Q. In the letters or memoranda that you may

18 have received from counsel that included discussions

19 of trial strategy and things of that nature, did the

20 information in those letters in any way affect the

21 manner in which you went about conducting your

22 research to perform the tasks that were assigned to

23 you?

24 A. No, it did not affect the manner in which

25 we conducted any of the studies.

1 Q. Did your client have any input into any of

2 the methodologies utilized or any of the research

3 plans used in conducting any research or studies that

4 you did conduct to perform the tasks that were

5 assigned to you?

6 A. Yes.

7 Q. Can you describe what those were?

8 A. At various times we would propose certain

9 studies or activities and present an estimate of time

10 and/or expense that would be involved in carrying out

11 the study. And that would precipitate discussions

12 with counsel as to, with the amount of time or funds

13 available was that study a judicial use of our time

14 and the client's money to embark on that particular

15 study at that particular time.

16 MR. KOBELINSKI: Judicial has a whole

17 different --

18 Q. I think we can substitute the term

19 judicious there.

20 MS. STARK: Freudian slip.

21 Q. Can you tell me what proposals you did

22 submit to your client to perform research?

23 Let me back up. Were there formal written

24 proposals submitted to the client to conduct research

25 or studies of any nature?

1 A. No, I don't believe there were formal,

2 what I would consider formal proposals.

3 Q. Were there, though, informal in the sense

4 of written proposals, whether it be by letter or

5 otherwise as to a proposed research project or study

6 project that were submitted to your client?

7 A. There were certain written working ideas

8 or suggestions of areas of study that were provided

9 periodically.

10 Q. Were these written proposals at the

11 request of the attorneys or were they developed on

12 your own as you were working through a particular

13 task that had already been assigned or a combination?

14 A. Basically as issues arose we would discuss

15 approaches to addressing in a scientific fashion a

16 particular issue. And as an outgrowth of those

17 discussions we would be asked to briefly describe

18 particular studies or activities and we would prepare

19 a brief discussion, a brief written synopsis of that

20 discussion at the request of counsel and provide

21 that.

22 Q. Would that generally be provided with a

23 proposed budget as well as to any particular research

24 project?

25 A. Sometimes it was provided with a budget,

1 sometimes it was provided without a budget and then

2 subsequently a budget estimate was provided.

3 Q. If I understand you correctly, I will take

4 for example, you mentioned a number of tasks that you

5 were asked to complete with regard to cattail

6 occurrence and so forth. As I understand it, during

7 the discussions with counsel and so forth you might

8 prepare a formal written or an informal written

9 proposal of how to go about a scientific study to

10 address the particular issues that were assigned for

11 you to look at.

12 What I am trying to get at is, for

13 instance, with regard to your review of the SWIM Plan

14 or the various drafts, did you on your own make any

15 or anyone at BDA, make any proposals independent of

16 assigned tasks that had already been presented to you

17 as to other areas of appropriate research that might

18 be directed to issues in the SWIM Plan that had not

19 previously been tasked to you?

20 A. If I understand the question --

21 MR. NETTLETON: I was waiting for the

22 objection.

23 MR. KOBELINSKI: No, I will let that float

24 on its own, if it can.

25 A. -- you are asking how our process of

1 communication and decision on what was to be done and

2 how it was to be done worked.

3 Q. Correct.

4 A. And essentially it was an effort in which

5 as particular issues that came up in the context of

6 the various litigations arose, we would meet, and it

7 was generally me, would meet with counsel and we

8 would discuss that particular issue.

9 And I would be asked to determine what

10 scientific approach could be taken and what

11 scientific data was needed to be able to analyze that

12 issue and provide some answer to it if it could be

13 answered.

14 So the issues were issues that arose

15 either singly or comprehensively out of the various

16 litigations. And what we were doing is responding

17 technically to how to address those.

18 Counsel did not tell us, go do this study

19 or that study. They defined an issue or an area in

20 which various issues were involved and it was up to

21 us to make recommendations on what kind of studies

22 would address those issues. But we were not out

23 basically generating proposals and just submitting

24 proposals.

25 Q. Generally following any of these meetings

1 where an issue was discussed and you were asked to

2 make a recommendation concerning a proposed study or

3 research project to address the issue, would you

4 generally then provide that recommended proposal in

5 the form of a letter of some sort or a memorandum?

6 A. Typically it would be some type of brief

7 memoranda.

8 Q. You said sometimes they would have budgets

9 and sometimes they would not, is that correct?

10 A. That's correct.

11 Q. Referring back to the tasks that you

12 identified previously, do you recall whether a

13 written proposal of some form was prepared with

14 regard to the task of investigating the occurrence

15 and spread of cattails in the S-10 areas of

16 Conservation Areas 1 and 2?

17 A. I believe there were certain brief

18 descriptions of some task associated with those type

19 investigations.

20 Q. Other than a brief description, was there

21 actually some type of proposal which would have set

22 forth your study plan or research plan with or

23 without a budget attached?

24 A. Only in the most general sense.

25 Q. Was there any form of proposal which set

1 forth a research or study plan for the evaluation of

2 why cattail is growing where it is growing?

3 A. There were again various brief

4 descriptions of tasks that were targeted to address

5 that issue.

6 Q. Were there any written proposals of any

7 form which included a study plan or a research plan

8 to investigate the food web issue as you described it

9 earlier?

10 A. Again, I believe that there were in the

11 general sense as described before.

12 Q. And the same question with regard to

13 looking at the periphyton communities.

14 A. Same answer.

15 Q. And the same question with regard to

16 looking at microbial and fungal relationships.

17 A. I believe so, but I am not absolutely sure

18 about that.

19 Q. Were there any such proposals related to

20 your review of any of the SWIM Plan drafts?

21 A. No, other than perhaps a general

22 categorization of, over this period of time we will

23 be reviewing documents that you submit to us which

24 include the SWIM Plan. There was nothing any more

25 specific than that relative to the SWIM Plan that I

1 can recall.

2 Q. Was there any form of proposal in writing

3 prepared that set forth a study plan or a work plan

4 to address your investigation of other vegetative

5 changes that may have occurred in the Everglades in

6 the past or currently?

7 A. Some general task descriptions as we have

8 discussed before that were intended to address that

9 issue.

10 Q. Were there any written proposals for a

11 study plan or research plan that were rejected by the

12 client?

13 (Pause)

14 A. As I recall there were not any specific

15 areas of investigation that were proposed that were

16 rejected. There may have been some tasks that were

17 rejected or modified in terms of scope.

18 Q. And those that would have been modified

19 would be reflected in the tasks that you have already

20 described to us?

21 A. Yes.

22 Q. Were there any actual research or study

23 plans under way that were terminated by the client in

24 midstream, so to speak?

25 A. I don't know that there were any that the

1 client terminated and said, you know, stop doing

2 this.

3 There were some projects, perhaps, in

4 which we began down one avenue of investigation and

5 found that it wasn't a productive area in terms of

6 what data we were obtaining or we found out that

7 someone else was already, had either already done a

8 similar study or was doing a similar study that was

9 much broader in scope so that it was not deemed

10 prudent for us to repeat that work.

11 Q. When you say the data being collected were

12 not productive, what do you mean?

13 A. We were generating data in an area where

14 previous investigators had already generated similar

15 data bases that were going to be as comprehensive as

16 the one we were generating, or as useful.

17 Q. Did you ever stop work on any such project

18 because the data being collected was pointing in a

19 direction that might not be favorable to the client?

20 A. No.

21 Q. Can you tell me what particular research

22 you were conducting where you stopped work because

23 the data being collected were not productive?

24 A. Yes. The one that comes to mind as an

25 example of that was at one point we had proposed to

1 do rather extensive wading bird survey. And we were

2 proposing a survey similar to what was and had been

3 done by Audubon in their aerial bird count surveys

4 over the years.

5 As we began that we became aware of the

6 full extent of some of those surveys and data bases

7 and certain work that had been done by other

8 investigators and we determined that whereas the data

9 would be good, it was not going to add significantly

10 to existing data bases or change any conclusions

11 re