1
1
2 STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
3
SUGAR CANE GROWERS COOPERATIVE
4 OF FLORIDA, a Florida Agricultural CASE NOS. 92-3038
Cooperative Marketing Association; 92-3039
5 ROTH FARMS, INC.; and WEDGWORTH 92-3040
FARMS, INC.,
6 and
FLORIDA SUGAR CANE LEAGUE, INC.;
7 UNITED STATES SUGAR CORPORATION,
and
8 FLORIDA FRUIT AND VEGETABLE
ASSOCIATION; LEWIS POPE FARMS;
9 W.E. SCHLECHTER & SONS, INC.;
and HUNDLEY FARMS, INC.,
10
Petitioners,
11
vs.
12
SOUTH FLORIDA WATER MANAGEMENT
13 DISTRICT, an Agency of the State
of Florida,
14
Respondent,
15
and
16
MICCOSUKEE TRIBE OF INDIANS OF
17 FLORIDA; the UNITED STATES OF
AMERICA; and FLORIDA DEPARTMENT
18 OF ENVIRONMENTAL REGULATION, the
FLORIDA WILDLIFE FEDERATION, the
19 FLORIDA AUDUBON SOCIETY, and
the SIERRA CLUB,
20
Intervenors.
21 __________________________________/
22 DEPOSITION OF THOMAS A. HERBERT, Ph.D.
23
ACCURATE STENOTYPE REPORTERS, INC.
24 100 Salem Court
Tallahassee, Florida 32301
25 (904) 878-2221
1-800-934-9090
2
1
2
3
4 ___________________________________________________________
5
DEPOSITION OF: THOMAS A. HERBERT, Ph.D.
6
7 TAKEN AT THE INSTANCE OF: Intervenor United States
8
DATE: Friday, February 18, 1994
9
10 TIME: Commenced at 10:35 a.m.
Concluded at 11:00 a.m.
11
12 LOCATION: 315 South Calhoun
Tallahassee, Florida
13
14 REPORTED BY: TERRY WILHELMI, CSR
Notary Public in and for the
15 State of Florida at Large
16 ___________________________________________________________
17
18
19
20
21
22
23
24
25
3
1 APPEARANCES
2
REPRESENTING THE PETITIONERS, SUGAR CANE
3 GROWERS, ROTH FARMS and WEDGWORTH FARMS:
4 GARY PERKO, ESQUIRE
Hopping, Boyd, Green & Sams
5 123 South Calhoun
Tallahassee, Florida 32301
6
7 REPRESENTING THE INTERVENOR UNITED STATES:
8 THOMAS A.W. FITZGERALD, ESQUIRE
Assistant United States Attorney
9 Southern District of Florida
99 N.E. 4th Street
10 Miami, Florida 33130
11
* * * * *
12
13
14 I N D E X
15
WITNESS PAGE
16
THOMAS A. HERBERT, Ph.D.
17
Direct Examination by Mr. Fitzgerald 4
18
19
20
21
22
23
24 CERTIFICATE OF OATH 21
25 CERTIFICATE OF REPORTER 22
4
1 PROCEEDINGS
2 The following deposition of THOMAS A. HERBERT,
3 Ph.D. was taken on oral examination, pursuant to notice,
4 for purposes of discovery, and for use as evidence, and for
5 other uses and purposes as may be permitted by the
6 applicable and governing rules. Reading and signing is
7 waived.
8 * * *
9 Thereupon,
10 THOMAS A. HERBERT, Ph.D.
11 was called as a witness, having been first duly sworn, was
12 examined and testified as follows:
13 DIRECT EXAMINATION
14 BY MR. FITZGERALD:
15 Q Good morning, Dr. Herbert, you may remember, I
16 am Tom Fitzgerald with the U.S. attorney's office in Miami,
17 we will be continuing your deposition which began on
18 November 30th. If I recall correctly, you have been in
19 more depositions than I have, so you will probably remember
20 all the ground rules and all that, but if you want to take
21 a break, just say so. If you don't understand my
22 questions, because as often occurs, they make no sense at
23 all, please just tell me and I will try and rephrase it, or
24 if you need to assume any facts in order to answer the
25 question, tell me what those assumptions are so we can work
5
1 through it and make sure that at least we're talking about
2 the same subject matter.
3 According to your testimony on November 30th,
4 you had not yet at that time looked in depth at the
5 materials that you had collected in connection with this
6 administrative challenge. Have you, since November 30th of
7 1992, had occasion to go through the photo imagery that you
8 had collected?
9 A No, I did not.
10 Q Can you describe, sort of in broad outline, what
11 you have done since November of 1992 and then we can see
12 where we need to go in greater detail.
13 A Well, shortly after the deposition, we had a
14 meeting in Miami with one of the individuals who had done
15 quite a bit of the early research in south Florida and the
16 Everglades eco-system, Dr. Taylor Alexander. We had a two
17 or three hour meeting with him just to determine some of
18 the logistical problems and some of the things that he had
19 recalled seeing over the years. Several of his study areas
20 were in areas that we have photography for.
21 We were asked to work with an individual by the
22 name of Linda Duever. I met with Linda Duever a couple of
23 times and she accompanied me down to Miami to meet with Dr.
24 Alexander.
25 I met with George Cole at least one time, maybe
6
1 twice, face-to-face with George on enlargements of some of
2 the aerial photography. I discussed field research plan
3 for doing some ground-truthing on the aerial enlargements
4 that George was being asked to prepare. That was through
5 the period December and mid-January of -- December '92 and
6 mid-January of '93 and from that point on I have not done
7 anything else.
8 Q You indicated that Dr. Alexander had done some
9 -- had focused some of his research in areas that you had
10 photo imagery available for. Would that be in Water
11 Conservation Area 1 and Water Conservation Area 2?
12 A I would have to look at the map to be exactly
13 sure where it was. As I recall, it was a quadrat that was
14 on the south end of the Loxahatchee, just north of the
15 Hillsboro Canal. That's what I had talked with Mr. Cole
16 about, getting some enlargements of that for the three or
17 four periods of photography that we had the negative
18 coverage of and presumably what we had intended was that
19 the photos that he was going to make to serve as base maps
20 and there was going to be a field investigation involving
21 Linda Duever and some other individuals from KBN
22 Associates.
23 Q Now, Ms. Duever herself is or was with KBN at
24 the time, correct?
25 A Yes.
7
1 Q The base map that you are describing or
2 referring to, was that ever actually produced?
3 A I don't know. I was -- by the end of January,
4 maybe early February of '93, I didn't have anymore
5 involvement with it.
6 Q So you never saw such a product?
7 A No.
8 Q After January of 1993, did you have any further
9 dealings with KBN or Ms. Duever?
10 A Not with KBN. She left KBN about that time. I
11 have had some dealings with her on other consulting
12 matters, but not on this.
13 Q Whom did she go to work with after leaving KBN?
14 A She went on her own. She has a consulting firm
15 in Gainesville -- or actually Micanopy, Florida, called
16 Conway Conservation.
17 Q Did a field research plan ever actually see the
18 light of day, that described the work?
19 MR. PERKO: Object to form.
20 MR. FITZGERALD: You don't like the light of
21 day?
22 BY MR. FITZGERALD:
23 Q Was a field research plan ever completed in
24 draft form, to your knowledge?
25 A I saw an early draft, a fax copy, but that was
8
1 the only thing I have seen.
2 Q That was prepared by KBN?
3 A By Linda. By that time Ms. Duever had left KBN
4 and I believe she was on her own by January of '93.
5 Q But she was, as far as you could tell, she was
6 still working on the project at that point?
7 A I assume so. I was not involved with her other
8 than just to meet with her and consult, which we did
9 several times on the phone and, as I recall, she wrote a
10 draft of a field research plan and faxed me a copy for
11 review and that was the extent of it.
12 Q Approximately when was that?
13 A I would have to look at my time slips, but
14 probably late January, second or third week of January.
15 Q Did you subsequently -- did you provide any
16 comments on the draft plan to Ms. Duever?
17 A Just over the telephone. I didn't prepare any
18 written comments at all. I said, "I read through it,
19 Linda, you know, looks good, you know, George is preparing
20 the base maps, coordinate with him or through the law
21 firm."
22 Q Did you subsequently see a final field research
23 plan?
24 A No, I did not.
25 Q Subsequent to that, did you have any further
9
1 discussions with Ms. Duever regarding the ground-truthing
2 that might be necessary in the areas you were focused on in
3 the Everglades Protection Area?
4 A We may have had a conversation, sort of
5 informal, you know, on into -- you know, while we were
6 working in association on another project, she may have
7 mentioned something about getting ready to go out and do
8 some field work. I don't really recall when it occurred, I
9 just have a sense that at some point she mentioned we're
10 talking about going out in the field and that was the
11 extent of it.
12 Q Do you know if she ever did?
13 A No, I don't.
14 Q How about Dr. Alexander, was it contemplated
15 that he would assist in this project?
16 MR. PERKO: Object to form. You can answer.
17 BY MR. FITZGERALD:
18 Q Based on your understanding is all.
19 A He has served on a number of public capacities
20 in south Florida, including the Big Cypress Swamp Advisory
21 Committee, and I have dealt with him in the past and I knew
22 he was a fund of information, historical information. He
23 has personal commitments and he is -- I wouldn't call him
24 elderly, because he is a very active man, but he has
25 personal family commitments that limit what he does. I
10
1 wanted to talk to him because he was one of the individuals
2 who had done a lot of the work back in the forties and he
3 had seen some of the areas that we had photography on, so
4 we wanted to talk to him. He was quoted in the literature
5 quite frequently, in the early literature, as being one of
6 the researchers.
7 Q Were you looking to Dr. Alexander to assist you
8 in some way in ground-truthing, if you will, the historical
9 photo imagery to identify the significance of pattern
10 tones?
11 A Possibly. I mean, it was the extent of we were
12 looking at the old photography and in one case, one of the
13 quadrats that he had worked on, he had done some fairly
14 detailed transects of and we were just trying to get some
15 information as to what he saw when he went through there in
16 the late forties.
17 Q Did he indicate if he could provide any like
18 detailed field notes or anything of that nature that would
19 allow identification of vegetative patterns in the area?
20 A I don't recall that at all.
21 Q Did you retain a copy of that draft field
22 research plan?
23 A No.
24 Q What did you do with your copy?
25 A It was a fax, telefax copy that I received and
11
1 after I reviewed it and made my verbal comments to Ms.
2 Duever, I threw it away.
3 Q You expressed the preliminary opinion back in
4 November of '92 that based on the limited review you had
5 conducted thus far of the photo imagery that you had
6 collected, that there was indication of some vegetative
7 changes in the various photo runs and I would like to know
8 if since then you have formed final opinions in that regard
9 or any additional opinions regarding the changes that you
10 perceived preliminarily in November of '92?
11 MR. PERKO: Object to form. You can answer.
12 A I have not done anymore work on it at all, so I
13 have no other opinion other than what I originally
14 expressed.
15 BY MR. FITZGERALD:
16 Q Do you retain at this point all of that photo
17 imagery?
18 A It's all been transferred over to the law firm,
19 the Hopping law firm's office.
20 Q Have you had occasion since November '92 to
21 discuss what was included therein and what it depicted with
22 anyone other than the attorneys at Hopping, Boyd?
23 A No.
24 Q No other consultants --
25 A No.
12
1 Q -- or outsiders?
2 A None at all.
3 Q You indicated in November of '92 that your focus
4 was on photo imagery, did that remain true or did you
5 examine any other remote sensing materials with regard to
6 the Everglades Protection Area?
7 A My original mission was to assemble photography
8 for the historic period and that's all I did.
9 Q You also described at the time of your earlier
10 deposition that certain bibliographic work was being done
11 or was contemplated with respect to the issues related to
12 the administrative challenge. Did you in fact complete any
13 additional bibliographic research?
14 A I did not personally. I had turned all those
15 references, copies of documents, over to the law firm and I
16 understand that Linda Duever had done some additional work
17 in that area.
18 Q Did you ever see the materials that she
19 accumulated or identified?
20 A No, I did not.
21 Q Since November '93, have you attended any of the
22 meetings of the South Florida Water Management District?
23 A No, I have not attended any meetings.
24 Q How about of the organizations known as SAJ or
25 TOC?
13
1 A I don't know what the acronyms are and I have
2 not attended their meetings.
3 Q It would have been in West Palm at the District?
4 A No.
5 Q Are you currently carrying on any other projects
6 for or with respect to work by Hopping, Boyd & Green
7 outside of this matter, exclusive to this particular
8 challenge?
9 MR. PERKO: Object to form.
10 A I'm not -- you mean other clients?
11 BY MR. FITZGERALD:
12 Q Well, other work on behalf of clients of
13 Hopping, Boyd & Green or directly for Hopping, Boyd &
14 Green?
15 A We have several common clients that we are
16 working on several projects, yes.
17 Q Do any of those projects involve clients who
18 maintain farming interests in the Everglades Agricultural
19 Area?
20 A No, not at all.
21 Q Do any of those matters deal with the Everglades
22 Protection Area, basically Lake Okeechobee south, as we
23 described in your November depo?
24 A We are jointly working on a project in the Big
25 Cypress Swamp area for a client whose name is Calumet
14
1 Florida. They purchased all of Exxon Oil Company's oil
2 holdings.
3 Q Is that the Racccon Point stuff?
4 A It's Raccoon Point Field and Bear Island Field.
5 Q You described at the November deposition a need
6 to review the photo imagery to determine if the quality of
7 the available flight runs was adequate to the work of
8 pattern identification that you thought you would be doing,
9 did you ever complete that review?
10 MR. PERKO: Object to form. You can answer.
11 A No, I did not.
12 BY MR. FITZGERALD:
13 Q Did you complete your effort to assemble for the
14 years 1940 through 1990, all available photo imagery of
15 WCA-1 and 2?
16 A What we have assembled was what was brought to
17 the November 30th deposition or what was available at that
18 time. I did not go any further beyond.
19 Q So you ceased that assemblage effort at that
20 point?
21 A Yes.
22 Q Did you, other than what you have described with
23 respect to Ms. Duever, conduct any other effort or work to
24 assemble data for ground-truthing the photo imagery you
25 had?
15
1 A With the exception of the discussions with Mr.
2 Cole as to providing enlargements of several of the
3 negatives that we had obtained, I did not do anything else.
4 Q Did you actually receive those enlargements from
5 Mr. Cole?
6 A I never did.
7 Q Do you know if he in fact did that work?
8 A No, not directly. I assumed that he had and he
9 had given it to the law firm.
10 Q What areas were depicted in the photography that
11 was being enlarged?
12 A The area that Linda Duever had decided she
13 wanted to look at first was at the south end of the
14 Loxahatchee, north of the Hillsboro Canal area.
15 Q Other than Ms. Duever at KBN, did you ever
16 identify any other -- identify a botanical expert to assist
17 in the species identification that you referred to in your
18 November deposition?
19 A I was not involved in anything beyond what we
20 had talked about in the November 30th deposition.
21 Q Have you produced any draft reports or final
22 reports on your examinations you did conduct of the photo
23 imagery?
24 A No, I did not.
25 Q Were you asked to?
16
1 A No.
2 Q Did you ever develop any final opinions or have
3 you any final opinions on the effects hydroperiod changes
4 over time might have had in causing vegetative changes
5 within the areas depicted in the photo imagery available to
6 you?
7 A No, I have not.
8 Q Do you anticipate developing any opinions in
9 that regard for this administrative hearing?
10 A I have had no indication from the law firm that
11 I was to go any further, so I assume that I would not be
12 doing anything more.
13 Q Did there come a time when you were actually
14 directed to stop your work on this project?
15 A As I recall, in early February in a discussion
16 with Bill Green from the Hopping firm, he essentially told
17 me to just put everything on hold and that they would
18 contact me for anything further.
19 Q And there's been nothing further since then?
20 A That's correct.
21 Q Do you have any -- what is your understanding
22 now of what your possible role or testimony might be in
23 this matter?
24 A I don't know what my role will be.
25 Q Have you updated your resume since our November
17
1 session?
2 A Not significantly. I changed one of my
3 associations, I dropped one of my memberships, but not
4 other than that.
5 Q Have you published anything since then?
6 A No.
7 Q You have not changed your employment
8 affiliation?
9 A No, still doing what I was doing before.
10 Q You described in November the tonal pattern
11 analysis that you could conduct based on the photo imagery,
12 which you have now testified you were directed not to
13 continue with. If I asked you today to start that process,
14 and assuming you were willing to do it for me, how long
15 would it take you to complete an analysis for the areas
16 encompassed by Water Conservation Areas 1 and 2?
17 MR. PERKO: Object to form.
18 A I really don't know, I hadn't really thought
19 about it for a long time. Six to nine months, maybe a
20 year. It's a fairly detailed and exhaustive process where
21 we would look at existing ground-truth information and
22 attempt to correlate back with what was on the photography.
23 BY MR. FITZGERALD:
24 Q Are you familiar with a company called, it's
25 either Law Environmental or Environmental Law -- it can't
18
1 be Environmental Law, so Law Environmental, based out of
2 Fort Lauderdale and Atlanta?
3 MR. PERKO: Object to form.
4 A I'm familiar with the firm, yes.
5 BY MR. FITZGERALD:
6 Q Have you had any dealings with them
7 professionally?
8 A Approximately four years ago I was on a project
9 that they were also a consultant on.
10 Q Who was representing them on the project?
11 A I can't even remember who it was, it was someone
12 out of Atlanta.
13 Q Mr. Downing?
14 A No. He was one of their marketing people and
15 had a doctorate in herpetology or something. It was a
16 project down in the Everglades or in the Big Cypress area
17 for Collier Resources Company and they had retained Law as
18 one of their other consultants and I was in several
19 meetings with the individual.
20 Q Do you know Dr. Tom Lodge?
21 A He was -- yes, I met him one time. He did some
22 -- in fact, he and I flew an aerial photo mission, I guess
23 you would call it, we flew together in a helicopter and
24 took aerial color photos with hand held cameras of the oil
25 fields in south Florida as part of some of the work that
19
1 Law was doing. I spent about four or five hours with him
2 flying in the helicopter and we exchanged some photographs
3 of what we had taken, but I have not talked to him since
4 and that's been at least four years ago.
5 Q Was that for the SWEPI work that you were doing,
6 part of the SWEPI work?
7 A No, it was with Collier Resources. They own the
8 oil and gas minerals in the Big Cypress area and they had
9 asked us to go out and essentially determine what the
10 existing conditions were and that was part of what Law was
11 doing. I was very familiar with the physical setting of
12 the area and so I went on the helicopter flight and we flew
13 for four or five hours taking photos and that was the
14 extent of it.
15 Q Do you know Mr. Erickson who is affiliated with
16 Law Environment?
17 A No, I don't.
18 Q Other than Linda Duever, who else did you deal
19 with at KBN on the field study or ground-truthing research
20 plan that was being developed?
21 MR. PERKO: Object to form.
22 A That was the only person.
23 BY MR. FITZGERALD:
24 Q Did you work with anybody else at KBN after she
25 left?
20
1 A No, I did not.
2 Q Have you dealt with any other consultants or
3 experts in connection with this administrative challenge?
4 A No, I have not.
5 Q And to the best of your knowledge, you received
6 no additional materials, photo imagery, et cetera, since
7 our November 30, 1992 deposition session?
8 A That's correct.
9 MR. FITZGERALD: I don't have anything further,
10 Counsel.
11 MR. PERKO: Dr. Herbert, you have the right to
12 read your deposition and make sure that it was transcribed
13 accurately or you can waive that right, it's up to you. Do
14 you want to read it?
15 THE WITNESS: I would waive it.
16 (Deposition concluded at 11:00 a.m.)
17 * * * * *
18
19
20
21
22
23
24
25
21
1 CERTIFICATE OF ADMINISTERING OATH
2
3 STATE OF FLORIDA:
4 COUNTY OF LEON:
5
6 I, TERRY WILHELMI, Certified Shorthand Reporter
7 and Notary Public in and for the State of Florida at Large:
8 DO HEREBY CERTIFY that on the date and place
9 indicated on the title page of this transcript, an oath was
10 duly administered by me to the designated witness (s)
11 before testimony was taken.
12 DATED THIS _______ day of _______, 1994.
13
14
15 _____________________________
TERRY WILHELMI, CSR
16 100 Salem Court
Tallahassee, Florida 32301
17 (904) 878-2221
18
19
20 My Commission Expires: June 13, 1994
21
22
23
24
25
22
1 CERTIFICATE OF REPORTER
2
3 STATE OF FLORIDA:
4 COUNTY OF LEON:
5
6 I, TERRY WILHELMI, Certified Shorthand Reporter,
7 do hereby certify that the foregoing proceedings were taken
8 before me at the time and place therein designated; that my
9 shorthand notes were thereafter translated under my
10 supervision; and the foregoing pages numbered _______
11 through _______ are a true and correct record of the
12 aforesaid proceedings.
13 I FURTHER CERTIFY that I am not a relative,
14 employee, attorney or counsel of any of the parties, nor
15 relative or employee of such attorney or counsel, or
16 financially interested in the foregoing action.
17 DATED THIS _______ day of _______, 1994.
18
19
20 ________________________
TERRY WILHELMI, CSR
21 100 Salem Court
Tallahassee, Florida 32301
22 (904) 878-2221
23
24 SWORN TO AND SUBSCRIBED TO BEFORE ME, THIS_______DAY OF
__________,1994, IN THE CITY OF TALLAHASSEE, COUNTY OF LEON
25