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