0001

01 STATE OF FLORIDA

01 DIVISION OF ADMINISTRATIVE HEARINGS

02 SUGAR CANE GROWERS COOPERATIVE

03 OF FLORIDA, a Florida Agricultural

03 Cooperative Marketing Association,

04 ROTH FARMS, INC., AND

04 WEDGWORTH FARMS, INC.,

05 and

06 FLORIDA SUGAR CANE LEAGUE, INC.;

07 UNITED STATES SUGAR CORPORATION;

07 and NEW HOPE SOUTH, INC., CASE NOS. 92-3038

08 92-3039

08 and 92-3040

09 FLORIDA FRUIT AND VEGETABLE

10 ASSOCIATION, LEWIS POPE FARMS,

10 W.E. SCHLECHTER & SONS, INC., and

11 HUNDLEY FARMS, INC.,

12 Petitioners,

13 vs.

14 SOUTH FLORIDA WATER MANAGEMENT

14 DISTRICT, an Agency of the State

15 of Florida,

16 Respondent,

17 and

18 MICCOSUKEE TRIBE OF INDIANS OF

18 FLORIDA, the UNITED STATES OF

19 AMERICA, and FLORIDA DEPARTMENT OF

19 ENVIRONMENTAL REGULATION, the

20 FLORIDA WILDLIFE FEDERATION, the

20 FLORIDA AUDUBON SOCIETY, and the

21 SIERRA CLUB,

22 Intervenors.

22 ____________________________________/

0002

01 DEPOSITION OF: THOMAS A. HERBERT, Ph.D.

02 DATE: November 30, 1992

03 TIME: Commenced at: 10:00 a.m.

03 Concluded at: 2:10 p.m.

04 LOCATION: U.S. Attorney's Office

05 315 S. Calhoun Street

05 Fourth Floor Conference Room

06 Tallahassee, Florida

07 REPORTED BY: KAREN L. BEGGS, CCR

07 Notary Public in and for the

08 State of Florida at Large

23 ACCURATE STENOTYPE REPORTERS, INC.

24 100 SALEM COURT

24 TALLAHASSEE, FLORIDA 32301

25 (904) 878-2221

0003

01 APPEARANCES:

02 FOR THE PETITIONERS, SUGAR CANE GROWERS

03 COOPERATIVE OF FLORIDA, a Florida

03 Agricultural Cooperative Marketing

04 Association, ROTH FARMS, INC., AND

04 WEDGWORTH FARMS, INC.:

05 GARY V. PERKO, ESQUIRE

06 Hopping, Boyd, Green & Sams

06 123 South Calhoun Street

07 Tallahassee, Florida 32314

08 FOR THE PETITIONERS, FLORIDA SUGAR CANE

09 LEAGUE, INC.; UNITED STATES SUGAR

09 CORPORATION; and NEW HOPE SOUTH, INC.:

10 MARK T. KOBELINSKI, ESQUIRE

11 Peeples, Earl & Blank, P.A.

11 One Biscayne Tower, Suite 3636

12 Two South Biscayne Boulevard

12 Miami, Florida 33131

14 FOR THE RESPONDENT-INTERVENOR:

15 THOMAS WATTS-FITZGERALD, ESQUIRE

15 Assistant United States Attorney

16 Southern District of Florida

16 155 South Miami Avenue

17 Miami, Florida 33130

18 ALSO PRESENT: Mr. Ken Rutchey

0004

01 STIPULATIONS

02 The following deposition of THOMAS A. HERBERT, Ph.D.

03 was taken on oral examination, pursuant to notice, for

04 purposes of discovery, and for use as evidence, and for

05 other uses and purposes as may be permitted by the

06 applicable and governing rules. All objections, except as

07 to the form of the question, are reserved until final

08 hearing in this case; and reading and signing is waived.

09 * * *

10 MR. KOBELINSKI: Apparently this deposition was

11 rescheduled to start at 10:00 o'clock a.m. Unfortunately,

12 I did not receive notice, and that is because our firm was

13 closed on Friday, which is apparently when the notice was

14 faxed out, and it did not cause any great inconvenience.

15 However, we had proposed at the last deposition -- I

16 believe Bob Rosenburg from your office was going to be

17 getting back to us -- that there be one attorney from each

18 firm whose home number be disclosed to the other people so

19 that if an emergency were to arise or, for instance,

20 notice needs to be sent out, when a firm is closed over

21 the weekend or during the holiday period, that person can

22 be contacted so that any emergencies can be handled. I

23 would just reiterate that proposal to all people, and I

24 hope that on December 4th we can all come forward to an

25 agreement on that and exchange one person's number, if

0005

01 that is at all possible.

02 MR. FITZGERALD: That is certainly a subject

03 that can be addressed at the oral council on the 4th, but

04 I was at the last hearing and Bob Rosenberg wasn't, so he

05 certainly could not have made any representation then.

06 MR. KOBELINSKI: At the last deposition we just

07 had.

08 ( Discussion off the record. )

09 MR. FITZGERALD: I didn't have the number and I

10 didn't realize your firm was closed on Friday.

11 MR. KOBELINSKI: We've had two occasions now,

12 one from our side and one from your side, and they haven't

13 resulted in any inconvenience at this point, but clearly

14 in the future it could happen.

15 MR. FITZGERALD: Well, something like that would

16 probably be a good idea. We can work that out later this

17 week.

18 THOMAS A. HERBERT,

19 was called as a witness and, after having been first duly

20 sworn, was examined and testified as follows:

21 CROSS EXAMINATION

22 BY MR. FITZGERALD:

23 Q Dr. Herbert, thank you for being willing to

24 shuffle your schedule around and swap with a different

25 witness. I hope this accommodation works out for you, and

0006

01 also the brief delay this morning. I hope there wasn't

02 any inconvenience. Have you ever been deposed before,

03 Doctor?

04 A Yes.

05 Q In connection with what cases?

06 A Quite a number of environmental related cases

07 where we've represented clients going to administrative

08 hearing or to trial.

09 Q Are those in the State of Florida, the

10 administrative hearings?

11 A Yes, all of them.

12 Q And were those related to the work that I have

13 become familiar with from your production, essentially

14 seeking permits for oil exploratory work?

15 A None of the materials that I made available

16 ended up in an administrative hearing where I was deposed.

17 These were on other cases.

18 Q Did any of them relate to matters arising in the

19 Everglades Agriculture Area?

20 A No, they did not.

21 Q Did any arise in areas designated under the

22 South Florida Water Management District's SWIM Plan as the

23 Everglades Protection Area, or EPA as it's called?

24 A No, they did not.

25 Q Did any relate to alterations in vegetation

0007

01 within the State of Florida?

02 A It did not.

03 Q Can you characterize just the general area for

04 us of what types of issues there were in those cases?

05 A Part of the practice that we have in our

06 consultant business is related to geological matters, and

07 I have been called as an expert and deposed on groundwater

08 issues, water contamination, groundwater contamination,

09 monitoring well strategies for developing effective

10 monitoring programs. The two most recent were involving

11 those issues.

12 Q Did any of those matters involve contamination

13 by nutrients?

14 A These were from -- one was -- no. One was

15 petroleum contamination site, and the other was from a

16 landfill.

17 Q In the instances when you testified, were you

18 qualified as an expert to testify in those matters?

19 A Yes, I was.

20 Q Were any of those in state court as opposed to

21 administrative proceedings?

22 A One was in state court, yes.

23 Q Where was that?

24 A Jefferson County.

25 Q Have you ever qualified as an expert in federal

0008

01 court?

02 A No.

03 Q If at any point during the deposition you would

04 like to take a break or you decide that you're hungry and

05 we don't act like we we're stopping, just please make sure

06 we take it into account.

07 I understand from correspondence with Counsel

08 that the work you have been retained to do in this case is

09 not yet complete; is that correct?

10 A Yes.

11 ( Discussion off the record. )

12 BY MR. FITZGERALD:

13 Q I am sorry. Can you give me an idea of where

14 your work currently stands in terms of your progression

15 towards final opinions?

16 A I have put together a reading list of materials

17 and gone back and created a bibliographic cite list, and

18 we've been in the process of pulling these references

19 together, and I have been reading those materials as they

20 are made available. And we have obtained aerial

21 photography, and some of it has just arrived in the last

22 week or so, and because of other scheduling work that I

23 have, I haven't had a chance to look at several of the

24 batches of photography.

25 Q Without asking the precise nature of that, have

0009

01 you even developed any preliminary opinions in the matters

02 which you have been designated to testify?

03 A To the extent -- yes, to the extent that there

04 appears to be pattern changes on the signatures of the

05 photos. There are changes on the land surface that the

06 photography from 1940 through 1990 has documented what

07 those patterns mean. As yet, we haven't gotten into that

08 yet.

09 Q Through counsel for the Co-op, I received a

10 resume. Had you provided that to counsel at their

11 request?

12 A Yes, I did.

13 Q Is that your most recent, or have there been any

14 updates as of that resume, or do you need to see it to

15 make sure?

16 A Do you have a copy of it?

17 Q It's on the way. I will show it you a bit later

18 and we will make that an exhibit and put it in the record.

19 A As I recall, it was in September or August when

20 I supplied it. It shouldn't be much different from what I

21 would list today.

22 Q What prior work have you done in the Everglades

23 Agricultural Area? Do you understand what I mean by EAA?

24 A Yes.

25 Q What prior work have you done in the EAA?

0010

01 A Primarily in the southern fringes of the EAA,

02 we've worked with oil, the oil industry for oil

03 exploration matters in that area. Some of the work

04 involved obtaining permits for seismographic testing

05 throughout the Water Conservation Area 2 and 3, and some

06 of the seismographic lines extended into the agricultural

07 areas of the lower part and southern part of the EAA.

08 Q How did you secure permission to conduct the

09 tests on the private lands?

10 A I was not directly responsible for that, but we

11 were working with Shell Western E and P Corporation of

12 Houston Texas. They sent -- the client sent individuals

13 whom they call permit men, and the permit individuals went

14 out and negotiated with the landowners and obtained

15 permits to cross certain areas with the seismographic

16 surveys.

17 Q And did those seismographic surveys involve

18 nondestructive vibraphone style tests?

19 A Vibroseis (phonetic)?

20 Q Yeah.

21 A Some of them did. The surveys were of two

22 types. One portion of the program, the overall

23 exploration program, involved vibroseis, which was limited

24 to road shoulders or roads or trails where truck-mounted

25 equipment could move easily. There was a second part of

0011

01 the work that involved what was called cross-country work,

02 which involved off-road equipment working in areas off of

03 hard surfaces or improved surfaces, and those were more or

04 less cross-country lines that were laid out to take best

05 advantage of the open pathways in the cross-country areas.

06 Q On the cross-country work, was that done with

07 explosives?

08 A All of that was explosives.

09 Q In the farming areas where your transects for

10 your exploration lines or your test lines extended into

11 the Everglades Agricultural Area, did you also use

12 excavation in those areas?

13 A Yes. As I recall, the lines that -- the lines

14 that were in the northeast to the southwesterly direction,

15 that the northern ends of those lines crossed the levees

16 and went into the agricultural areas a short distance,

17 maybe two to three miles.

18 Q And those were explosive tests?

19 A Yes.

20 Q Do you recall what the land use was of the

21 farming areas that you were conducting the seismic

22 testing?

23 A Some of the areas were in sugar cane stubble. I

24 think there was one line that extended up into a stubble

25 area. I believe two of the lines that we worked on were

0012

01 into what I would call abandoned or unimproved. They were

02 more of a pasture, low brushy areas that had been drained

03 and had probably been cleared at one time, but were not

04 being utilized when we went in there.

05 Q They were essentially fallow?

06 A I would say fallow would be a good term.

07 Q Would you customarily know who the owner of the

08 land would be?

09 A I wouldn't seek that information out. That

10 would be made available as we were working through the

11 development of the permits. I don't recall any specific

12 names. I remember names being thrown around in meetings,

13 but as to which landowner had a particular parcel, I don't

14 recall any of those.

15 Q You are familiar with U.S. Sugar Corporation?

16 A Yes.

17 Q Do you recall if that was one of the landowners?

18 A I don't recall.

19 Q Okay. In conducting your -- I will call it --

20 nondestructive testing, sonics, would any soil borings be

21 done in connection with that type of test?

22 A With the vibroseis test?

23 Q Yes.

24 A No, there would be no --

25 Q With respect to the explosive tests, shots, were

0013

01 there borings to set the charges in the ground?

02 A That's correct.

03 Q In those cases, would any tests be conducted on

04 the borings or the tailings from the drill?

05 A Not on a routine basis, other than the times

06 that I was with the drilling crews. I have a geologic

07 interest in what the materials are in a new area, and I

08 made sort of what I would call an informal lithological

09 log of the types of materials that came out of the

10 subsurface, and to that extent it was more just a

11 descriptive effort on my part to just sort of acquaint

12 myself with the materials that were being drilled.

13 Q Do you still retain those logs?

14 A No. These were just more or less -- when I say

15 logs, it's not a written thing, but in the course of 20

16 minutes of drilling, I would say, "The peak soils were

17 nine feet. We hit two feet of sand and drilled into a

18 blue-gray marrow, drilling ahead and then into a harder

19 rock, and all the holes were drilled to 27 feet." So it

20 was fairly routine, and I spent the better part of the

21 week with the drillers in various locations in

22 Conservation Area 3 in the northern part, so I developed

23 more or less just an understanding. When I say logs, I

24 logged it for my own purposes and sort of filed it away

25 mentally.

0014

01 Q So it is not a written --

02 A Not, it's not a formal thing at all.

03 Q Did you ever memorialize that anywhere in memos

04 to the client or maybe an informal article, research

05 paper, anything like that?

06 A We had discussion with the client, Shell

07 Western, about the types of materials relative to vehicle

08 access, rutting, using different types of vehicles. I was

09 involved in trying to come up with drilling techniques

10 that would be less impactive on surface soils, primarily

11 in peat soils. There was a constant evolution of

12 equipment as we were working over about a two-year period

13 to come up with less impactive types of equipment. And to

14 the extent that these informal field observations related

15 back to the client, yes, we did talk about that quite a

16 bit because we were concerned with surface and

17 environmental impacts, rutting. There was quite extensive

18 restoration that was required, so we did not want to

19 create an extensive amount of surface disturbance.

20 Q When you say that the test shot holes were

21 drilled to a depth of 27 feet, what is the reference data

22 for that?

23 A Land surface.

24 Q In connection with the survey program that you

25 have done for SWEPI? That's S-W-E-P-I?

0015

01 A That's the proper acronym, yes.

02 Q Did you ever conduct any water quality testing?

03 A Yes. It was primarily for turbidity, which was

04 part of the special conditions of the Florida Department

05 of Environmental Regulation permits for conducting the

06 activities. We had to meet certain turbidity limits

07 within a fairly small zone of discharge around the

08 drilling equipment, so we made turbidity measurements

09 early on the in the program, and then we realized after we

10 -- because of the techniques that we were using, turbidity

11 was not a problem, so we had DER inspectors with us, and

12 they essentially said we could discontinue the turbidity

13 monitoring.

14 Q For us poor dumb sailors that can barely read or

15 write, could you define what you mean by turbidity for the

16 record?

17 A Turbidity is cloudiness in the water that is

18 caused by suspended silt and clays that are disturbed by

19 activities that cause the water -- loss of clarity and

20 cloudiness, and under state standards you take a reading

21 of ambient turbidity and then you are allowed certain

22 limits above that within a -- usually it's described in

23 the permit as a special condition, a mixing zone wherein

24 essentially you are allowed to create turbidity within a

25 certain zone. I believe our mixing zone was within 20 or

0016

01 25 feet of the drilling equipment. Outside that area, we

02 had to be within ambient.

03 Q And what did you understand the purpose of

04 restrictions and how big the mixing zone should be in

05 terms of water quality impact?

06 A More in the sense of a routine permit condition

07 that is required on all wetlands alteration or dredge and

08 fill permitting activities, it is a standard requirement

09 for turbidity control.

10 Q Other than the turbidity testing prior to the

11 drilling and then monitoring during the drilling

12 activities for particular sites, were any other water

13 quality tests performed at the drill sites?

14 A No.

15 Q Do you recall if any soil testing was done at

16 the drill sites, either EAA or down into the WCAs, other

17 than your informal analysis of the nature of the soils

18 that were being penetrated?

19 A No chemical analysis or anything like that. It

20 was strictly a physical characterization of the soil as it

21 related to the ability to drill with our drilling

22 equipment and the ability of the soil to support the

23 drilling equipment and minimize the vegetation disruptions

24 because of that activity.

25 Q Okay. You mentioned vegetation. Let's move

0017

01 over and talk about that for a minute. What type of

02 vegetative surveys were done in advance of establishing

03 the lines for your tests?

04 A In advance of the drilling of the seismographic

05 lines during the permitting process, there were several

06 different ways that this was done. We would establish a

07 more or less corridor of interest where an area hundreds

08 of feet wide or maybe a thousand feed wide where a

09 straight line of survey was to be laid down, and we tried

10 to avoid the obvious tree islands and deeper water areas.

11 In the cypress areas, the cypress domes were avoided. So

12 in our preliminary layout process of the planning process,

13 if you will, we tried to orient the seismic acquisition

14 lines so that we would miss the obvious large, gross

15 features. And then we would retain a helicopter firm and,

16 using a nose-mounted video camera, we would fly at low

17 attitude across the proposed area, and low altitude I am

18 talking about a hundred feet, with a forward-looking video

19 camera, and this was studio camera quality.

20 Q With a gyrostabilization mount

21 (phonetic)?

22 A Yes. And then we would -- then I helped lay out

23 these lines and then I participated in the video

24 documentation.

25 Q When you were developing the line to be flown,

0018

01 what resources or other materials would you review to

02 tentatively lay out the line to avoid what you described

03 as prominent features, like cypress domes?

04 A We would start with the best available

05 information in terms of maps or photographs over the three

06 or four years that we worked on these projects for Shell

07 Western. At various times we used color photography, high

08 altitude color photography by the U.S. Fish and Wildlife

09 Service in the early '80s. We used photography that we

10 obtained from Salt Lake City from the Agricultural

11 Stabilization group out there, the archives. We flew --

12 we contracted with an aerial photography firm, Kucera and

13 Associates out of Lakeland.

14 THE REPORTER: Could you spell that,

15 please.

16 THE WITNESS: Kucera, K-u-c-e-r-a, I believe.

17 Because of the generally poor quality of some of the

18 available photography and the requirements of the

19 Department of Environmental Regulation as far as providing

20 photo documentation for the proposed area, we found it

21 more expeditious to actually fly the areas that we were

22 interested in, so there were a number of programs of

23 aerial overflights following the proposed lines, and photo

24 strip mosaics were developed for those.

25 Q Did you do any ground truthing of your aerial

0019

01 photography, or did you consider the helicopter low

02 altitude sufficient for that purpose?

03 A We flew -- after we flew the helicopter

04 missions, the photography was made available to the

05 permitting agencies as a permanent record. One of the

06 issues that was constantly being raised in the permitting

07 process was whether or not there would be long-term

08 impacts on vegetation, so there were a number of permit

09 conditions placed upon the activities as far as standing

10 water, depth of water, time of year, things like that,

11 depth of vehicle ruts. So as a certain insurance policy,

12 we flew the areas beforehand and we flew them again after

13 the permits were issued and then after the work had been

14 conducted to show the immediate impacts after the

15 exploration activities were conducted. And then as part

16 of the permit conditions, we had to go back at intervals

17 afterwards to show how the areas had been revegetated.

18 And during that program we took other consultants out to

19 look at the area specifically on the ground.

20 Q The before and after imagery that was done with

21 videotaping and whatnot, who ended up with that material

22 after the project was complete?

23 A It went to the client. We made copies available

24 to the permitting agencies.

25 Q When you say "available," you mean you actually

0020

01 sent them copies?

02 A Yes. We provided VHS format copies of

03 everything that we had done.

04 Q And that was DER?

05 A I believe it was sent to the Fort Myers office

06 of DER. I have a fairly complete set of the information

07 that was supplied to you folks.

08 Q And that is the box of videotapes?

09 A That's correct.

10 Q Obviously we have not had sufficient time to

11 review all the videotapes, but I had some sense of that.

12 A You should have had to fly it. It took us hours

13 and hours of summer flying.

14 Q When were you first contacted with regard to the

15 present case?

16 A I believe it was late July of this year.

17 Q And who actually contacted you?

18 A I believe Bill Green.

19 Q Had you had any prior knowledge of the case

20 before being contacted by Mr. Green?

21 A None other than the reports from the various

22 information sources that we take in our office, mailing

23 lists, and I was aware that something was going on.

24 Q So prior to any contact by Mr. Green, you had

25 not formed any opinions about the case or the merits one

0021

01 way or the other?

02 A No.

03 Q Not even based on review of those old sources

04 and your knowledge of the area in general?

05 A Only to the extent that during the time I was

06 working with Shell Western, we were -- I attended quite a

07 number of board meetings of the South Florida Water

08 Management District, and some of the permitting efforts

09 were with the staff of the district. I was aware of some

10 of the concerns by the various groups involved. Some of

11 the issues related to the Everglades area in general and

12 activities that might impact that area, of which oil

13 exploration was one. We became involved in discussions

14 about relative impacts and --

15 Q During what period of time were you attending

16 meetings of the board of South Florida Water Management

17 District?

18 A 1988 and '89. We had 10 or 12 different permits

19 that were individual permits that reflected part of

20 Shell's overall program for seismic exploration, and these

21 permits came in at different times, and there were some of

22 them -- there were several of them that ran concurrently.

23 Some were at different stages throughout the permitting

24 process, and the activities by Shell raised some serious

25 concerns, and some of the programs that we had done

0022

01 extensive work on were abandoned because of the

02 controversies regarding the environmental impacts,

03 cumulative impacts, long-term policy with regards to

04 development activities in the area.

05 Q Were they abandoned because permits were refused

06 by one of the cognizant agencies?

07 A Yes. A couple of the permits were actually --

08 well, there was no out-and-out refusal, but several of the

09 permits involved permission from the Governor and Cabinet

10 and we went to the Governor and Cabinet as an agenda item,

11 and there was so much controversy involved that the

12 permits were -- the Cabinet action was deferred, and so to

13 the extent that the activities went on sort of a long-term

14 deferral, they were deferred before a negative statement

15 was made by the permitting agency. So we knew pretty well

16 that if we took it to its end that there would be a no

17 vote. And then subsequent to that, some legislation was

18 passed that made certain areas off limits for oil

19 exploration, so it was all part of a regulatory political

20 process going on that I was involved in.

21 Q When you say you went to the Governor and

22 Cabinet, do you mean in their capacity as the trustees for

23 the Internal Improvement Trust Fund?

24 A Both as the trustees and as head of the

25 Department of Natural Resources. There were trustee lands

0023

01 available -- I mean, out there that were managed. The

02 minerals -- 50 percent of the minerals in most of the

03 areas were owned by -- at least 50 percent by the State of

04 Florida, and in that capacity, we had to have permission

05 from the mineral owner, permission from the surface land

06 owner, and the case there was flowage easements over most

07 of the entire Water Conservation Areas. These were -- we

08 had to have a permission from the easement holder, which

09 was the South Florida Water Management District. We were

10 crossing works of the district, which were the natural

11 WCAs themselves, plus the levees and canals, so we had to

12 have permission to cross these works in the district. And

13 then the overall lead permit in these instances was the

14 Florida Department of Natural Resources geophysical

15 permit, and as the head of the DNR, the Governor and

16 Cabinet was the ultimate authority for granting or denying

17 these permits.

18 Q Prior to being contacted by Mr. Green in late

19 June, had you done work before that for Hopping, Boyd and

20 Green?

21 A Yes. We had worked together on numerous

22 projects.

23 Q Were these in connection with SWEPI?

24 A With Shell Western, we worked together jointly

25 with the firm, the Hopping firm, and Collier Resources,

0024

01 which is an entity that manages all of the Collier family

02 mineral interests in South Florida. We worked with the

03 firm on a very long project related to oil exploration in

04 Pensacola, in the Pensacola area, with Getty Oil Company.

05 That was about a five to six-year project. We worked with

06 the firm on a number of "Save our Coast," "Save our

07 Rivers," land acquisition projects wherein we were

08 consultants who worked with the client to create the

09 application of materials, the documents for submission to

10 the agencies for land acquisition.

11 Q Do you currently have other projects going with

12 Hopping, Boyd other than the work for this particular

13 case?

14 A We're still involved with them on the Collier

15 Resources activities. We have a long-term relationship

16 with the Collier Resources group, and we're also working

17 on a power plant project that uses alternative fuel

18 resources that is just starting up.

19 Q Where is that power plant located?

20 A Liberty County, Florida. It's a waste

21 wood-fired project, and we have been the lead consultant

22 on that project since 1985.

23 Q Is that a cogeneration facility?

24 A No. It is strictly wood fire, 13 megawatt power

25 plant, waste wood from the county and surrounding areas,

0025

01 bark, waste wood that is chipped in the field and is

02 brought in. It burns about 500 tons of waste wood a day.

03 Q The Getty and Collier Resources, were you

04 brought into that by Collier or were you brought into that

05 by Hopping, Boyd and Green?

06 A In the Collier situation, we had been

07 consultants for Collier beginning in about 1986, and I

08 believe the Hopping firm was retained in '88 or '89, and

09 it was upon my suggestion.

10 Q You suggested to the client, Collier Resources,

11 that that firm be retained?

12 A Yes. And in 1979, I was brought into the Getty

13 project by the law firm.

14 Q Who specifically brought you in?

15 A Bill Boyd, one of the main partners.

16 Q Did you know Mr. Green before his approach to

17 you in July?

18 A I have known Mr. Green since 1979.

19 Q So you have worked with him in the past?

20 A Yes.

21 Q Have you ever been a consultant or provided work

22 for the Sugar Cane Grower Co-op of Florida?

23 A No, sir.

24 Q I got that backwards. Florida Sugar Cane

25 Growers Co-op.

0026

01 A I think I know what you mean.

02 Q The client in this case, have you ever worked

03 for them before?

04 A No.

05 Q Okay. To the extent you are aware, have you

06 done work for other farm interests in the EAA?

07 A No, I have not.

08 Q Have you ever done consulting work for the

09 Miccosukee Indian Tribe of Florida?

10 A Not officially. I have provided them background

11 information on various matters, just on an informal basis.

12 Q How did that come up?

13 A In the course of consulting for Shell Western,

14 we were brought into contact with the land management

15 group within the tribe, and these were more or less

16 informal questions that were just answered in the context

17 of a phone discussion, or they were asking me about field

18 methods, surveying methods. A lot of it revolved around

19 the surface impacts. They were interested in minimizing

20 surface impacts from off-road vehicles that were being

21 used for hunting purposes within the tribal lands, and

22 they permitted those activities, and they were looking for

23 some guidelines for creating restrictions on the types of

24 vehicles to limit the types of surface impacts.

25 Q Is your firm doing any consulting work currently

0027

01 on Miccosukee or Seminole tribal reservation lands?

02 A No, we are not.

03 Q Can you describe the size of your firm for us?

04 A Right now we have six individuals who work out

05 of the Tallahassee office. We have one in an office in

06 Miami. We're basically a family-oriented firm. We

07 started the firm in 1978. We relied heavily on our family

08 and graduate students that we have been interacting with

09 over the years to provide services. We also have a loose

10 network of consultants who are also small consultants,

11 small firms that we rely on. We call it a contract

12 associate basis. Our business strategy is, one, to stay

13 small and focus our energies on several projects rather

14 than trying to go out and compete with large

15 multi-disciplinary science engineering consulting

16 firms.

17 Q Are there particular areas that you hold your

18 company out as particularly experienced in?

19 A I would say in several areas, one being the

20 geological area. I would say about 50 percent of my work

21 is oriented to geologic problems, working for clients to

22 provide geological consultant services. Probably a

23 quarter of our workload is related to environmental

24 regulatory activities, and probably a quarter of our

25 effort is in the business communication area. One of our

0028

01 principals, Linda Lampl, is a specialist in business

02 consulting, team building, communication type activities,

03 so we have a fairly diverse group, even though we're

04 small. We've always found that that mixture is good

05 because it makes us aware of the sensitivities in dealing

06 with situations. When we go into communities, we often

07 have to work in communities where we end up explaining

08 what we're doing, building respect from the people who we

09 work with.

10 Q So your company is organized internally along

11 subject areas lines?

12 A Not really. We're a small firm. There is an

13 overlap. It's mainly oriented on a project-by-project

14 type basis, and we essentially group ours project to

15 project, assembling the expertise as we need it. If we've

16 got it internally, we do it internally. If we have need

17 for an outside consultant, we have a number of individuals

18 and firms that we've worked with in the past, and we will

19 bring them in and recommend them. If we're a lead

20 consultant, for example, we will recommend that a

21 particular entity or person be brought in to assist in the

22 overall effort.

23 Q You mentioned that you were first contacted by

24 Mr. Green in July. When were you actually retained to do

25 work on this case? Was it then or --

0029

01 A Yes, it was within two days of his first talking

02 to me.

03 Q Who at your firm do you have working on this

04 matter aside from yourself?

05 A We have a couple of our graduate students that

06 we have working part-time who came up with a list of

07 library bibliographic type studies, and we began pulling

08 together a lot of research materials, and these young

09 people going out and doing the library digging for me.

10 Q Do you have your graduate assistant doing any of

11 the analysis work?

12 A No.

13 Q Who will actually do that work?

14 A I will.

15 Q Do you anticipate using anyone else's services

16 in that regard?

17 A We will not retain anybody else.

18 Q Okay. In preparing to conduct your analysis,

19 have you consulted with any other outside experts or

20 consultants retained by Hopping, Boyd or their client?

21 A Yes, I have.

22 Q With whom?

23 A I discussed this matter with George Cole of

24 Florida Engineering Services. I have worked with George

25 for probably over 15 years on various matters. He is a

0030

01 professional land surveyor and professional engineer. His

02 expertise is in mapping, land description, boundary

03 description, and one of the services that I used heavily

04 with his firm is his photo reproduction capabilities to

05 accurately scale and create photo imagines at the proper

06 scales.

07 Q Will you be directing his work, then,

08 essentially and then relying upon it?

09 A Directing it to the extent that we will --

10 collaborative, I would say, is a better word.

11 Q And to what extent have you and Mr. Cole begun

12 that process?

13 A We have talked about it a half dozen times in

14 phone conversations and at least one face-to-face meeting.

15 I have explained to him the methodology that I see to be

16 employed using photography, a preliminary quotation from

17 him on costs of doing certain activities. To the extent

18 that we were able to obtain photography that was certified

19 by either the archives or Soil Conservation Department of

20 Agriculture, we obtained certified copies. In other cases

21 we were able to obtain only negatives, and from that point

22 the negatives would be created into scaled photos that

23 could be used in conjunction with the photo prints that we

24 obtained. So we needed a fair amount of expertise in

25 scaling and reproduction of images for the same geographic

0031

01 areas, and that is what Mr. Cole's surveying experience

02 was in, and photographic reproduction work is important.

03 We have discussed that at some length.

04 Q Have you had any dealings in the course of your

05 contamination work since '78 with the Army Corps of

06 Engineers?

07 A Quite a few.

08 Q What is the nature of your involvement with the

09 Corps?

10 A Well, in the course of our business, I would

11 estimate I have probably done 200 dredge and fill permits

12 for various clients. Quite a few of them were seismic

13 permits, but there's been some fairly extensive projects

14 where I have worked with both the Jacksonville Corps and

15 the Mobile Corps offices and some of the field in Florida

16 relative to dredge and fill permits and the joint permit

17 process that we have to go through for dredge and fill

18 permitting. In some cases with the seismic testing,

19 geophysical testing, it was more as consultation, some

20 involvement with Fish and Wildlife if there were

21 threatened endangered species, so it was a fairly limited

22 process. In other projects we have had extensive Corps

23 involvement.

24 Q Have you ever had any dealings professionally

25 with the National Park Service Department of Interior?

0032

01 A Quite extensively.

02 Q What is the nature of those interactions?

03 A Initially we worked with Shell Western -- let me

04 back up. We started our involvement with Collier

05 Resources in, I believe, 1985 or '86, when I did a white

06 paper on oil exploration methods in sensitive areas, the

07 kinds of things that could be employed to minimize the

08 surface impacts, primarily in the Big Cypress area. We

09 were in negotiations with the Park Service, and that

10 document was presented to the Park Service, and there was

11 some meetings and discussions, I believe, in early '86.

12 And then I believe it was in May of 1986 that we began

13 working with Shell Western, and their areas of interest

14 included Big Cypress National Reserve, and from that point

15 forward all of our activities had a component that

16 involved dealings with the local Park Service office, with

17 the Big Cypress manager, and our involvement also included

18 working in the higher levels of the Park Service in the

19 Atlanta region office. I was in at least three or four

20 meetings that I can recall over a three or four-year

21 period where we went to Atlanta, sat down and essentially

22 briefed the upper levels of the Park Service, regional

23 levels, on the exploration plans that involved the Big

24 Cypress area land.

25 Q Do you recall who the supervisor of Big Cypress

0033

01 was during that period?

02 A Yes, sir. Fred Fagergren.

03 Q Did your firm, as consultant, carry out a

04 seismic testing program at Big Cypress National Reserve?

05 A A portion of it, yes.

06 Q How about the Environmental Protection Agency of

07 the United States, the EPA; have you done any work with

08 them?

09 A Only indirectly as a commenting agency to our

10 permitting efforts in the wetlands or dredge and fill

11 area. We have had some comments occasionally from EPA

12 that we had to answer or we were in direct contact with

13 the Atlanta region office. I have done several projects

14 that MPDS permits for water discharges that I have made

15 field visits with EPA inspectors and compliance personnel.

16 Q The MPDS efforts, have those related more to

17 water quality issues?

18 A Yes. The one I am speaking of that I can recall

19 having the most involvement with was with the power plant

20 in Liberty County.

21 Q What is in the power plant that requires a point

22 discharge elimination system permit?

23 A It is an industrial processed water that is used

24 for cooling. Temperature was a concern. The cooling

25 water was stripping some copper from the copper tubing.

0034

01 Primarily, temperature and copper that we were trying to

02 set up working with the client's engineering firm, trying

03 to work out a way for Florida to meet the EPA regulations

04 for getting below those thresholds, those limits.

05 Q What engineering firm was on that project?

06 A Watkins Engineering of Tallahassee. They were

07 primarily a construction engineering firm.

08 Q Back when you were first approached by Mr.

09 Green, what was your understanding of the time frame in

10 which you would need to complete your work?

11 A I was never really too sure what the time was.

12 My initial task was to assemble the historical

13 photographic documentation. Some of that material took

14 eight to twelve weeks, thirteen weeks to finally obtain.

15 So my initial work involved obtaining it, obtaining the

16 photographic information, beginning a review of

17 literature, and I guess some of the original urgency that

18 I sensed that we were supposed to have something done late

19 in the fall, maybe early winter of '92, that pretty much

20 was put on hold. My sense of urgency was not there when

21 we were unable to obtain the photographic materials very

22 quickly. I have not really inquired of what the time

23 table is.

24 Q Does your contract or agreement specify a

25 termination date, when your work is supposed to be

0035

01 complete?

02 A No.

03 Q When did you first go to Salt Lake City to

04 acquire the photo imagery from the Soil Conservation

05 Service?

06 A I believe the sequence of events was that

07 Mr. Green called me the latter part of the last week in

08 July. I would have to go back to my daily records. I

09 believe it was the last week in July, and we discussed use

10 of aerial photography and what he thought -- what I

11 thought was available in terms of historical

12 documentation, what could be seen on the photography, what

13 kinds of things would be visible at various scales of

14 photography, how it could be used in this case. He

15 checked with the client and then I was directed to follow

16 through on my initial recommendations, which were to

17 physically go to these agencies, go to Salt Lake City, go

18 to National Archives, sit down with the materials that

19 were available, select the best available materials, order

20 them immediately, and then have them reproduced and sent

21 back here for work. As I recall, it was like a Thursday

22 or Friday of one week, and I left on a Sunday at noon to

23 fly to Salt Lake City, early August, I believe. And at

24 8:00 o'clock in the morning, I was in the USDA office. I

25 sat down. I told the people what I wanted and we went and

0036

01 spent the entire day going through all of their records.

02 I left there, got on a plane, flew to Washington National

03 and was in the National Archives the next morning at 8:00

04 o'clock. I spent until 4:00 o'clock in the afternoon

05 there going through materials that were archived there. I

06 placed an order for the materials that we have here

07 available, and was just waiting for them to arrive.

08 Q Then you also acquired photo imagery from the

09 Florida Department of Transportation, correct?

10 A That's correct.

11 Q When did you order those?

12 A It was a much shorter turnaround time. It has

13 been in the last six or seven weeks. It was about a

14 three-week turnaround on those.

15 Q Have you acquired photo imagery for your

16 analysis from any other sources other than those three?

17 A Photo imagery, no.

18 Q Have you acquired any remote sensing data that

19 you are going to rely upon in formulating your opinions in

20 this case other than the photography from those three

21 sources?

22 A I am not going to -- I personally am not going

23 to rely on remote sensing at all. Pretty much my area of

24 interest is film-based photography.

25 Q Is there any other film-based photography, other

0037

01 than from those three sources, that you expect to either

02 seek or rely upon that you don't yet have?

03 A There may be some photography that we were not

04 aware of. Oftentimes in research there is a component of

05 serendipity where you find something as you go along that

06 you might like, but I think the information we have right

07 now, the database that we have, is probably what would be

08 relied on most exclusively.

09 Q The photo imagery that you have got right now,

10 how far back does that extend in terms of years? Do you

11 know the earliest year of the photography you will be

12 using?

13 A The earliest was -- there's some photography

14 from 1938, I believe, in the Dade County area, and perhaps

15 portions of the EAA around Lake Okeechobee.

16 Q The most useful base photography was flown in

17 1940, and we have the photo mosaics, the index sheets for

18 the entire Everglades area that was flown in 1940, and we

19 have negatives for a good portion of the Conservation Area

20 1 and 2, not the complete area but a portion of it.

21 MR. PERKO: Could we take a short break?

22 MR. FITZGERALD: Sure. Let's take a five or

23 ten-minute break.

24 ( Short recess taken. )

25 BY MR. FITZGERALD:

0038

01 Q If I can step back for just a second and ask a

02 question about the videotaping that was shot, the

03 helicopter work that you did along the seismic

04 transecting --

05 A Seismic lines or transection, right.

06 Q -- for SWEPI. Were those ever analyzed, the

07 before and after, to determine if, in fact, there was any

08 impact of the drilling and/or vibroseis testing?

09 A Yes. We went out and flew the before and after

10 and actually one of the videotapes in the box has a

11 comparison of the two different lines. We did a split

12 screen before and after on video and we attempted to fly

13 the same path, same altitude, same speed, and show before

14 and after on one split screen shot, so, yes, we've done

15 that?

16 Q What did you use as a navigation reference

17 system for that?

18 A For the before and after comparison or just for

19 the flying?

20 Q For the comparison.

21 A Once the ground was occupied by activities, you

22 could see where the impacts were and it was just a matter

23 of following the yellow brick road on the ground.

24 Q So your after certainly is along the as-drilled

25 line?

0039

01 A That is correct.

02 Q Are your before -- how did you establish that,

03 in fact, your after matched the line that you flew before?

04 A This particular photography was immediately

05 after, like a year after, so that we had the ground

06 impacts visible. The initial before video was done by

07 identifying ground objects, and generally we flew or ran

08 coordinates between points but at low altitudes. We were

09 able to pick out ground features and fly them from

10 essentially point to point. I would sit in the front seat

11 with the pilot and we would go point to point to point,

12 flying 40 miles an hour.

13 Q So your split screen analysis is immediately

14 after testing and a year after testing?

15 A I believe that was what it was.

16 Q In the effort to develop a bibliography, what

17 was the purpose of that effort?

18 A Well, in any research effort, I found it

19 effective to go back -- I guess it is a standard research

20 effort methodology. You go back to the literature and

21 attempt to obtain citations of what may be relevant

22 materials and assemble that together.

23 Q What directions did you give to the graduate

24 students who were doing that, the types of materials you

25 wanted to see?

0040

01 A I essentially just copied the citation list from

02 various publications that I had on hand and took a

03 highlighter and highlighted these and said, "Try the state

04 library, try the FSU library, try the Florida room of the

05 state library, try the University of Florida library,

06 various sources, and just turned them loose.

07 Q Did you review the bibliography enclosed in a

08 portion of the approved SWIM plan adopted by the board of

09 the South Florida Water Management District?

10 A Yes, I did.

11 Q How many documents did you finally cause to be

12 copied from that list, or have you reviewed from that

13 list?

14 A At this point we've got some work to be done

15 which includes pulling together quite a few of those

16 citations. That's where we are in our process right now.

17 Q So that I understand where you stand right now,

18 I understand you're suggesting you need to do a lot more.

19 Provided to me by Counsel at a session last week was about

20 a six-inch stack of documents purporting to be the

21 bibliographic materials that have been collected that you

22 would use. Is there anything that you have collected that

23 you have not provided through Counsel as part of that

24 discovery?

25 A Can I take a minute and go through these?

0041

01 Q Sure.

02 A (Witness reviews documents.)

03 Q As part of the discovery material, there was a

04 one-page that references a conference on Florida

05 Everglades Reclamation in Baltimore, Maryland, in July of

06 1927. The only thing I received was a cover page. Did

07 you ever actually get a document that goes with that, or

08 is that just --

09 A I believe there was an eight or ten or

10 fifteen-page proceedings.

11 MR. FITZGERALD: I can tell you, Counsel, that

12 we didn't get that, because it was so intriguing that I

13 wanted to see what they said in Baltimore in 1927, right

14 after the hurricane of '26, and it isn't there and is not

15 in the boxes.

16 MR. PERKO: It is not in mine, either.

17 MR. FITZGERALD: Maybe we can reach an agreement

18 since Counsel doesn't appear to have it today, either,

19 that you will try and locate it and forward it to us as

20 soon as possible, obviously, but within the next week or

21 so.

22 BY MR. FITZGERALD:

23 Q I was going to ask you some questions about it

24 today.

25 You have had a chance to review the

0042

01 bibliographic materials that were provided. Other than

02 those and the one that you are going to try and locate,

03 are you aware of any others that you have collected to

04 review or rely upon to date?

05 A There is some additional soil documents that I

06 assumed had been copied. They were in some reference

07 books of proceedings of the Soil Science Society of

08 Florida in the early '40s, and I had obtained the books,

09 and I assumed they had been copied.

10 MR. FITZGERALD: If I could ask Counsel to

11 provide it because I didn't see those.

12 MR. PERKO: I thought they had been copied, as

13 well.

14 ( Discussion off the record. )

15 BY MR. FITZGERALD:

16 Q From what you said, I understand there are a few

17 volumes. How many, roughly?

18 A Two or three bound volumes of proceedings of the

19 Soil Conservation -- Florida Soil Conservation Society.

20 Q Counsel has agreed to also provide those to us.

21 And then you have indicated that you are doing further

22 bibliographic searching and you will review additional

23 materials?

24 A Yes.

25 Q Have you reviewed the materials currently in

0043

01 hand as yet for purposes of beginning to develop opinions?

02 A I have read through them all. I don't

03 necessarily have any opinions yet. I just essentially

04 familiarized myself with them. Some of these are probably

05 not relevant. I have just given the researchers, the

06 graduate students a list, and they brought back a lot of

07 materials and put in the file box, and I have read through

08 it, but haven't categorized it or made any opinions or

09 formed any opinions yet.

10 Q Other than the acquisition of the photo imagery

11 and bibliographic work you have done already, have you

12 done anything else to prepare yourself to begin this

13 analysis process? And other than your discussions with

14 Mr. Cole.

15 A I have gone through all the photography, at

16 least in a preliminary fashion, laid it out, looked at it,

17 looked at the coverage, looked at the quality of either

18 the prints or the negatives, began thinking about ways to

19 present materials to show changes.

20 Q You have used the photo imagery from the flights

21 in the '40's, the WCAs, in your work for SWEPI, have you

22 not?

23 A Not the 1940s, no.

24 Q What years of imagery have you used for SWEPI

25 of the WCAs?

0044

01 A We used photography that was flown by Kucera,

02 and I believe I supplied several large rolled photos. I

03 don't know if they're here.

04 MR. PERKO: I didn't know you wanted those.

05 MR. FITZGERALD: I want Mr. Rutchey to see

06 those.

07 MR. PERKO: We will get them at the lunch

08 break. THE WITNESS: These were some lines that

09 went up into Water Conservation Area 2 and 3. This was a

10 strip mosaic we flew for that, and that was primarily what

11 we used. We had other photography that was flown in other

12 areas, but I do not have copies of that. It just happened

13 that I had this one particular line.

14 BY MR. FITZGERALD:

15 Q To be sure I am clear on this, the rolled charts

16 that have roughly nine-by-nine photos that are not linked

17 is not a mosaic map; it's just a string --

18 A That's correct.

19 Q -- those were from Kucera?

20 A That's correct.

21 Q Okay. And that is only in Water Conservation

22 Area --

23 A In 2 and 3, the northern part of 3 and part of

24 2.

25 Q Okay. So you are still researching on

0045

01 bibliography, but as far as photo imagery goes, unless

02 something pops out of the woodwork, you essentially are

03 satisfied with what you have on hand now?

04 A Yes.

05 Q Have you had an opportunity to review in detail

06 the SWIM Plan adopted by the South Florida Water

07 Management District?

08 A No, I have not.

09 Q Have you reviewed the latest one in detail?

10 A I had reviewed earlier drafts of it back in '88,

11 '89 or '90, on behalf of Shell. I read it fairly

12 thoroughly for potential oil exploration impacts. I have

13 used the final SWIM document as the bibliography. I have

14 read through it just in a spot reading fashion.

15 Q I think I may have asked this in a slightly

16 different way. Is it correct that other than the graduate

17 students that are doing some of the search and pulls for

18 you, you are the only one at your firm that will be

19 working on this matter?

20 A That is correct.

21 Q And the analysis of the earlier version of the

22 SWIM Plan, do you recall the precise date of that version?

23 Because there have been roughly five or six drafts.

24 A Certainly the first draft and maybe the second

25 or third revisions.

0046

01 Q Did you, in fact, unearth any impacts of that

02 proposed draft on your client, SWEPI?

03 A I don't recall specifics, but it was just from

04 the standpoint that it seemed to take more of -- the

05 earlier plans seemed to take more of a stance that there

06 would be no oil exploration activities out in the Soil

07 Conservation Areas.

08 Q In the course of your work thus far, have you

09 reviewed any of the work being done by the Technical

10 Oversight Committee related to the SWIM Plan?

11 A No, I have not.

12 Q Are you familiar with TOC, as it's referred to?

13 A Yes.

14 Q Have you reviewed any of the materials that have

15 been produced or presented to the SAGE Committee,

16 Scientific Advisory Group on the Everglades, that was

17 convened by the Board of the South Florida Water

18 Management District?

19 A No, I have not.

20 Q Have you attended any board sessions at which

21 the implementation of the current SWIM Plan has been

22 discussed?

23 A The current plan?

24 Q Yes.

25 A No.

0047

01 Q Have you attended any of the workshops on any

02 matters, whether financial matters, the Best Management

03 Practices, or other issues related to the current SWIM

04 Plan?

05 A No.

06 Q Now, with regard to the historic activities, not

07 the current SWIM Plan, but previous versions, did you

08 attend any of the workshops or drafting sessions for any

09 of the earlier versions of the SWIM Plan?

10 A I don't believe I attended any of the work

11 sessions. I attended board meetings where some of those

12 results were discussed.

13 Q Were those the meetings you attended for

14 purposes of addressing permit matters, or had you

15 specifically attended for the purpose of listening to SWIM

16 related issues?

17 A I think it was a combination of both. Several

18 of the meetings, I recall going down specifically to hear

19 discussions on SWIM issues.

20 Q Was that because of the concern for the oil

21 exploration impacts?

22 A Strictly.

23 Q Are you still doing that type of work for SWEPI?

24 A No, we're not.

25 Q How about for other oil interests?

0048

01 A For Collier, yes, we are continuing to work with

02 them.

03 Q Do any of their lands extend into the EPA?

04 A I would have to look at the boundary map. I am

05 very familiar with their ownership. I think some of their

06 lands on the eastern fringe of ownership, maybe on the

07 northeasterly area, they may have 2,000 acres.

08 Q Do they own land, to your knowledge, in Palm

09 Beach County?

10 A Not in Palm Beach.

11 Q How about Broward County?

12 A I believe they have some retained mineral

13 interests in the edge of Broward County. I am not sure of

14 that, though.

15 Q On the western edge?

16 A Yes.

17 Q How about Dade County?

18 A The same thing; there is a fringe area right on

19 the Dade/Collier line where I believe they own some oil

20 minerals in Dade County, around the Jet Port area.

21 Q Are you familiar with the provisions of Chapter

22 40E-63 of the Florida Administrative Code that's often

23 referred to as the Everglades Agricultural Area Rule or

24 BMP Rule that's referred to in the SWIM Plan?

25 A Not at all.

0049

01 Q Did you recall seeing that reference in some

02 Best Management Practices?

03 A I saw a reference to it, but that's all.

04 Q So you were not involved in any way during the

05 development of that rule by the District?

06 A No, in no way.

07 Q What precisely is the work that you anticipate

08 doing with regard to this case?

09 A Assembling a time sequence of aerial photography

10 that documents changes in the land surface roughly over

11 the period of 1940 to 1990.

12 Q The photo imagery that dates back to 1940 is of

13 relatively poor quality, is it not?

14 A I would not agree with that. I think all things

15 considered in the photography I have looked at over the

16 years, it's reasonably good quality for that period.

17 Q Is it sufficiently detailed and clear, from your

18 review of it, to allow you to do species

19 identification, vegetative species identification?

20 A I am not going to be doing species

21 identification. I would be identifying patterns, tonal

22 patterns that might represent a particular species. So I

23 think a lot of the original studies done in the area

24 probably used this as a photo base map for some of the

25 early studies, so I think it is of sufficient quality and

0050

01 you can see quite a bit of detail.

02 Q The photos you are referring to, are they color

03 imagery or black and white?

04 A All black and white.

05 Q So the tonal differences would be subtle shades

06 of black and gray?

07 A Just shades of gray. Black is black.

08 Q Good point. Trust a scientist.

09 Are you familiar with a company called Biotech

10 Industries?

11 A Biotech Industries?

12 Q Bio Industries, Incorporated.

13 A I think you need to move your clip over.

14 Q Oh, there's another name? Tropical Bio

15 Industries, Incorporated.

16 A Yes, I am familiar with that firm.

17 Q Have you dealt with them in the past

18 professionally?

19 A Yes.

20 Q Have you retained them to conduct work for you?

21 A Yes.

22 Q Are they one of those independent contractor

23 types that you referred to earlier in the testimony?

24 A Yes.

25 Q Have you found their work to be reliable?

0051

01 A In the past, yes.

02 Q In 1988, did you collaborate with them in

03 putting together what might be termed a white paper of

04 some sort on the Water Conservation Areas?

05 A That's correct, yes.

06 Q What was the purpose of that document?

07 A A number of the Shell Western seismic lines were

08 anticipated to go through -- proposed to go through parts

09 of Conservation Area 3, and involved a very comprehensive

10 permitting review, and many of the issues related to

11 surface vegetative impacts of exploration equipment, and

12 we retained them to assist us in beginning studies on the

13 areas we were interested in.

14 Q In fact, Tropical Bio Industries did the

15 vegetative mapping analysis that was included in that

16 effort for you?

17 A Yes.

18 Q Okay. And did they not express the view that

19 the 1940 photo imagery from all available sources was of

20 such a quality that they could not render opinions in some

21 cases with regard to the nature of vegetation that was

22 depicted in those photos?

23 A I don't recall that.

24 Q In the work you have described that your company

25 has done, you made no mention of producing a report or a

0052

01 survey like the one you have now described you were doing

02 for this case. Could you tell me when in the past your

03 company has done such work. Let me make that more

04 specific. When in the past have you done such work, since

05 you are the sole person at your firm that is going to be

06 doing this?

07 A Define what the work is that the --

08 Q You defined for me a few minutes ago the work

09 that you are going to do in this case, the vegetative

10 alterations, analysis of vegetative patterns within the

11 EAA and EPA. When in the past have you done such work?

12 MR. PERKO: I am going to object to the form,

13 the basis --

14 MR. FITZGERALD: I can rephrase it.

15 MR. PERKO: I'm not sure I understand the

16 question. Dr. Herbert, you can answer the question if you

17 understand it.

18 BY MR. FITZGERALD:

19 Q I will be happy to rephrase it.

20 A Please.

21 Q What is it that you understand you are going to

22 do for Hopping, Boyd and Green or their client in the

23 present case?

24 A I am going to assemble photographic images for a

25 period 1940 to approximately 1990, for specific areas.

0053

01 Q And what are those areas?

02 A Conservation Area 1 and 2, for the most part,

03 portions of those WCAs.

04 Q And as you understand the work, you will not do

05 any assemblage of photo imagery for that period of

06 approximately 50 years for the Everglades Agricultural

07 Area, but solely for the two Conservation Areas?

08 A I don't know what the ultimate extent of the

09 assemblage will be. We do have coverage over portions of

10 what is now the EAA.

11 Q Please describe for me projects that you have

12 been involved in since 1978, that involve assemblage of

13 photo imagery and analysis of vegetative patterns.

14 A I have assembled quite a number of historic

15 photos for various projects. As far as doing the actual

16 vegetative analysis, that's not my area of experience and

17 professional training. What I have typically done is

18 assemble the photography, look at the kind of things that

19 can be seen on the photography, and collaborated with

20 other individuals as far as the actual vegetative work. I

21 have worked on a number of dredge and fill cases, coastal

22 marinas, for dredging of channels, marina basins in North

23 Florida, on the west coast where I have used the same type

24 of photography, where I have gone back in the historical

25 record, back into the '40s, and assembled a sequence of

0054

01 photography, and I have worked in collaboration with other

02 people, botanists and marine biologists, whatever

03 particular discipline was involved.

04 Q Does Mr. Cole have any expertise, to your

05 knowledge, in photo interpretation with regard to

06 vegetation?

07 A I have relied on his experience in several

08 matters, not specifically for vegetation, but looking at

09 signatures on photos and looking at tonal patterns and

10 attempting to ground truth what is there, its area, its

11 expanse. We've worked on a couple of marina projects in

12 that regard, as I recall.

13 Q Now, you have photo imagery in various source

14 packages that have been shown to me previously from the

15 late '30s and '40s, some in the '50s -- I think around

16 '54, perhaps -- and then as late as 1990. Do you have

17 available any data that demonstrates ground truthing for

18 those various sets of photo imagery?

19 A I believe in the Tropical Bio Industries report,

20 they referenced some work that had been done in the early

21 '40s. I was planning to rely upon whoever was brought in

22 as the botanical consultant, ecological consultant, to

23 work primarily as a team member, to attempt to work

24 through the imagery, attempt to ground truth the older

25 photography and bring that forward in time.

0055

01 Q How do you go about ground truthing a set of

02 photos that were done in 1954?

03 A Ground truthing?

04 Q Uh-huh.

05 A Primarily through the literature and research

06 work in a particular area, an established test area that

07 they have occupied over time.

08 Q So for any photos for some finite period in the

09 past, you cannot currently ground truth it; would you

10 agree with that?

11 A Certainly, certainly.

12 Q So it's strictly historical documentation you

13 have to rely on?

14 A That's it, exactly.

15 Q Do you know who the botanical expert is that is

16 going to benefit from your work?

17 A The only individual I have talked to is Linda

18 Dubber (phonetic) with the firm of KBN Consultant in

19 Gainesville.

20 Q Have you ever worked with Ms. Dubber before?

21 A No. I've worked with the firm before but not

22 with her, specifically.

23 Q And did she give you an indication of what type

24 of materials she would need in order to conduct her

25 analysis so that you could bear that in mind as you

0056

01 constructed this photo assemblage?

02 A We had a meeting and we simply went over what I

03 had assembled to date.

04 Q Did she ask you to add anything or indicate that

05 you were doing more than was necessary for her to conduct

06 her analysis?

07 A No.

08 Q Okay. If she is going to do the botanical

09 evaluation, what is it exactly that you will seek to

10 derive or interpret from the photo imagery that you put

11 together?

12 A I'm not following what you're saying.

13 Q Let me put it in very generic terms. I can't

14 figure out what it is you're really going to do with what

15 you put together. What are you going to do with it, or is

16 your task solely the assemblage process?

17 A The assemblage, the creation of the images, and

18 then from that point, assistance with whoever else is on

19 the evaluation review team in identifying particular

20 patterns and changes over time.

21 Q Okay. Do you have any expertise in assigning

22 cause to changes that you would note in such photo

23 imagery, assuming there are changes?

24 A Assigning cause?

25 Q Yes.

0057

01 A No.

02 Q So you would rely on someone else for that

03 purpose?

04 A Presumably, yes.

05 Q When you did assemblage of the photo imagery for

06 marina projects that you mentioned, what was the purpose

07 of that imagery? What were you looking for there?

08 A Well, in all the cases, there was a question of

09 whether or not the projects had been established before

10 certain dates, whether or not certain areas had been

11 excavated, dredged, filled, documenting alteration in the

12 area prior to certain dates and then carrying it forward

13 to document whether or not the subsequent alterations in

14 maintenance dredging had occurred over time.

15 Q Did you ever do this style of mapping or photo

16 imagery assembly for your oil company work?

17 A Not that I recall.

18 Q You have been designated by Counsel in the

19 document filed in this case as being a witness who will

20 testify on the effect or impact of the Everglades SWIM

21 Plan on vegetation in the Everglades Protection Area as

22 defined in the SWIM Plan adopted by the board of the South

23 Florida Water Management District.

24 MR. PERKO: I object. I believe that

25 mischaracterizes the extent of his expert witness

0058

01 designation.

02 MR. FITZGERALD: Well, Counsel, you can object.

03 That was taken verbatim.

04 MR. PERKO: Well, I don't have it with me, but

05 I can get a copy of the expert witness designation. I

06 don't believe it says what you just read.

07 MR. FITZGERALD: I will withdraw the question

08 for now and I have got a copy of it coming, as well, and

09 we'll take that up after lunch because we're not that far

10 from lunch, anyway. In the meantime I will ask the $64

11 question.

12 BY MR. FITZGERALD:

13 Q What is it that you understand you are going to

14 be testifying regarding in this case?

15 A As to the way in which the photo record as

16 assembled, how it was mechanically put together, to the

17 extent that I work in cooperation with other researchers,

18 what we observed on the photography in terms of tonal

19 patterns, pattern recognition on photography, and then how

20 those patterns may have changed over time. I would have

21 to limit my testimony based on my credentials, of course,

22 and I feel comfortable with my knowledge of using

23 photography, but not necessarily interpreting it in the

24 sense from a vegetative standpoint. So that will

25 primarily be it.

0059

01 Q So you do not view yourself as qualified to

02 venture opinions or conclusions as to a specific

03 vegetative type that would be reflected in a particular

04 tonal pattern in the photos?

05 A I would not be qualified as far as the

06 vegetation, but I have had quite a bit of experience in

07 photo interpretation work, in pattern recognition, which

08 is what you are seeing on the imagery. And to the extent

09 that can be integrated with historical information or

10 ground truthing from literature cites and/or current

11 activities, that would be up to somebody else to do that.

12 Q In the absence of ground truthing, can you, with

13 reasonable scientific certainty, assign any significance

14 to a particular tonal pattern in a historic photo?

15 MR. KOBELINSKI: Object to the form of the

16 question as to "any significance." I believe the question

17 is unclear as to what is actually asked. I don't

18 understand what you are asking.

19 BY MR. FITZGERALD:

20 Q Do you understand the question.

21 A No, not really.

22 MR. FITZGERALD: Could you read the question

23 back, please.

24 (Question read by reporter.)

25 BY MR. FITZGERALD:

0060

01 Q When I say "significance," I mean species

02 identification. Does that clarify your --

03 MR. KOBELINSKI: That's fine.

04 BY MR. FITZGERALD:

05 Q I can rephrase the question.

06 A I still don't -- it's fragmented as to what you

07 are asking me. If you can give me --

08 Q A tonal pattern in a historic photo that is --

09 well, the photos you have that represent areas within the

10 WCAs depict vegetation, do they not?

11 A Vegetation or water or some pattern on the

12 ground at the time the photo was taken.

13 Q Without ground truthing in that area at the time

14 of that photo, can you assign a species identification to

15 a particular tonal shade or pattern?

16 A I wouldn't be assigning a species to it in any

17 event. I would be identifying the aerial extent of that

18 pattern, how it interfaces with other patterns within a

19 reasonably smaller area.

20 Q Without venturing an opinion on what the

21 pattern represents?

22 A That's correct.

23 MR. KOBELINSKI: Object to the question to the

24 extent that I am unclear as to whether you are asking

25 whether this witness can or whether it is feasible to be

0061

01 done, so to that extent, that I don't understand the

02 question, I state the objection to the form of the

03 question.

04 MR. PERKO: I will join in the objection.

05 MR. FITZGERALD: The objection is noted but the

06 witness, I think, answered the question as I was asking

07 it.

08 BY MR. FITZGERALD:

09 Q Do you anticipate putting together a similar

10 assemblage of photo imagery to demonstrate the development

11 of the Everglades Agricultural Area over that same 50-year

12 period?

13 A I don't know at this point. We do have

14 photography that is on the fringe of the developed areas.

15 Q Did you not order the total available imagery

16 for the same flight dates for the EAA in your acquisition

17 period?

18 A We have the mosaics, but the individual photo

19 frames cover only portions of the fringes, the southerly

20 and easterly fringes of the agricultural areas.

21 Q Are those fringes included simply because they

22 are in a frame that extends into the WCAs 1 and 2?

23 A I am trying to think of all of the photography

24 that I did order. I think in some instances we went maybe

25 two or three additional frames into what would be called

0062

01 the EAA, maybe the Brown's farm area. Some of the 1940

02 flight lines were east/west lines that extended over into

03 that area.

04 Q In assembling this batch of photo imagery and in

05 employing it, how do you maintain geographical reference?

06 A Well, the conventional techniques are used,

07 known points on the ground that you could readily identify

08 from photo to photo within the same age of photography and

09 pick photo image points that would be consistent in

10 succeeding years, and this is recognizing the scaling

11 difficulties that may be apparent with the photography,

12 image quality, that sort of thing.

13 Q In reviewing the materials you have assembled

14 thus far, do you expect any problem with geographic

15 reference over a 50-year period for areas that sit in the

16 middle of a marsh area with little in the way of

17 discernible fixed features?

18 A That was one of the areas that I have looked at

19 fairly extensively already; in fact, in which most of my

20 interest has been to date. I am convinced there is enough

21 identifiable ground points that we can adequately position

22 ourselves graphically to identify where we are in space

23 and time on any particular year of photography. There is

24 an infinite number of points that could be used. It's

25 just a matter of finding those that -- I wouldn't say an

0063

01 infinite number, but a large number of points on any

02 particular photo that might be identifiable on succeeding

03 years of photography, but I think it can be done

04 effectively.

05 Q What types of points have you identified so far

06 as being adequate?

07 A Points on existing manmade structures, roads,

08 canal levees, control structures, as far as manmade

09 features.

10 Q So if I am understanding you, you take a known

11 location, a fixed structure or something that is easily

12 identifiable and then as you move, in this case, across

13 trackless, wasteless marsh, you extrapolate from your

14 known position to determine where any particular feature

15 within another photo might be?

16 A There's no extrapolation at all. What you are

17 doing as far as the hard reference points that have some

18 latitude and longitude or government survey position

19 geographically, those points would be available on certain

20 photos. Then you have natural terrain features, such as

21 stream channels, points of confluence of creeks or tree

22 islands, particularly, in some cases individual trees that

23 may be visible on a number of years of photography. And

24 by establishing what some of these points are on any given

25 photo, then you can tie back to known points. If you

0064

01 happen to want to know exactly where you are, you would

02 come up with your scaling on the photography and

03 measurement and identification of ground control points

04 and put these together into a mosaic format. And then for

05 succeeding years, you would identify common points for

06 various years of photography.

07 Q If you don't like my word "extrapolating," would

08 the more technically correct term be "interpolating" the

09 position?

10 A No.

11 Q You don't think that's what you're doing?

12 A Interpolating?

13 Q Yes.

14 A No. That would be identifying a point on a

15 photo that can be identified in multiple years of

16 photography and can be identified in overlapping or side

17 lapping photos of the same year and establishing

18 approximate geographic reference for that particular

19 point.

20 MR. FITZGERALD: It's about 12:15. This is a

21 good point to break for us and then get the various

22 things.

23 ( Lunch recess taken. )

24 MR. FITZGERALD: Counsel, you were going to

25 provide additional materials over the lunch break.

0065

01 MR. PERKO: Yes. Those bound volumes right

02 there, if you could grab those for me. There are two

03 bound volumes of the Soil Science Society of Florida,

04 proceedings, one dated 1939 through 1944, numbers one

05 through six, and 1945 through 1952, number seven through

06 twelve. These are the Soil Science proceedings that Dr.

07 Herbert previously testified to.

08 MR. FITZGERALD: Okay.

09 MR. PERKO: In addition, we've provided the

10 aerial photography that Dr. Herbert performed for SWEPI, I

11 believe it was.

12 MR. FITZGERALD: Now, the question I have about

13 that is that we were provided that document examination

14 opportunity last Wednesday, an opportunity to look at

15 those, and I did, and then I made copies of what we

16 thought were a listing of all photos ordered from the

17 Conservation Service, from the archives. It was not our

18 understanding that date that those were from a private

19 service. We were unaware of that and that's been

20 clarified by the witness. You indicated to me, as well,

21 that you have a listing of additional photos, another box

22 full that we did not see the other day but which were also

23 ordered from a public source?

24 MR. PERKO: Yes. That was a one-page document

25 from the Florida Department of Transportation.

0066

01 MR. FITZGERALD: Did you give me a copy?

02 MR. PERKO: I already gave you a copy.

03 MR. FITZGERALD: You did?

04 MR. PERKO: I put it by your desk before you

05 spread out everything.

06 MR. FITZGERALD: I don't see it unless it's

07 under that stack.

08 MR. PERKO: This is a listing of the Department

09 of Transportation negatives.

10 THE WITNESS: Negatives and mosaics.

11 MR. PERKO: Negatives and mosaics that Dr.

12 Herbert ordered from the Florida Department of

13 Transportation.

14 MR. FITZGERALD: And that is in the box that I

15 didn't examine?

16 MR. PERKO: No. You did examine those.

17 MR. FITZGERALD: It is just a separate listing.

18 I knew we had some stuff from DOT.

19 MR. PERKO: The box that you provided was

20 additional photographs from the Soil Conservation Service.

21 MR. FITZGERALD: Which are included on the list?

22 MR. PERKO: Which are included on the list.

23 BY MR. FITZGERALD:

24 Q Now, with regard to the coiled charts back here

25 that have the nine-by-nine photo prints, who has the

0067

01 negatives for those?

02 A We ended up with those from our work with Shell,

03 and I don't know who has the negatives now. It may be

04 Shell. It's probably somewhere in Shell.

05 Q Because of that and the nonavailability of the

06 negatives from a public source, we're going to need to get

07 those copied, which we didn't contemplate last Wednesday,

08 obviously, because we thought these were all public, and

09 you didn't know the source of those. So at some point

10 after this, I will arrange with you and we will find

11 someplace here in Tallahassee -- in fact, the doctor may

12 be able to suggest someplace -- to have those copied.

13 MR. PERKO: We will talk about it after the

14 deposition.

15 MR. FITZGERALD: I know we will lose some

16 quality in trying to duplicate off of a print like that.

17 BY MR. FITZGERALD:

18 Q Dr. Herbert, going back to some information this

19 morning, you were giving us an indication of when you

20 first traveled to acquire or place orders for the various

21 sets of photos in both Salt Lake City and in Washington.

22 You have submitted a bill, dated September 1992, to

23 Hopping, Boyd and Green for some of your services and

24 expenses, and that bill reflects airfare for 8/30 to 9/1,

25 STL to WDC to TLH, which I assume means Salt Lake City to

0068

01 Washington, D.C. to Tallahassee, for about $1,100 in

02 airfare. Would that have been the trip you were

03 describing?

04 A That is correct.

05 Q So instead of occurring at the beginning of

06 August, in fact, it was at the end of August?

07 A And beginning of September, correct.

08 Q Okay. But the end of July, in your

09 recollection, is still the first conversation with

10 Mr. Green?

11 A No. I would have to restate that. I was off 30

12 days. I knew it was at the end of a month and I was

13 assuming it was end of July. It was actually the end of

14 August.

15 Q So the time frame for your scooting off on a jet

16 was correct; it was just which month that happened?

17 A Yes.

18 Q Can you tell me who Mr. Hartman is, Brad

19 Hartman?

20 A He's with the Game and Freshwater Fish

21 Commission.

22 Q And what discussions did you have with him on

23 file information related to this case?

24 A I asked him where certain information was

25 located within the Game and Fish Commission, how they had

0069

01 their archival materials arranged, and how we would get

02 ahold of certain materials.

03 Q Your billing statements referenced GFC. Is that

04 the Game and Fish Commission?

05 A Yes.

06 Q Florida Game and Freshwater Fish Commission is

07 its full title, correct?

08 A Yes.

09 Q What kind of data and archives were you seeking

10 from them?

11 A Reports that were done by the Game Commission in

12 the late '40s and early 1950's, relative to firsthand

13 accounts of conditions in the Water Conservation Areas.

14 Q Have you received that material?

15 A No.

16 Q Were they able to indicate to you where it was

17 located?

18 A They gave me a couple of names of individuals

19 that were there at the time and recommended that I talk

20 with them directly, but with the exception of the

21 materials that we had already obtained from the Florida

22 State library, Florida room, there was no other additional

23 information we had gotten from the Game Commission.

24 Q Are you expecting anything further based on your

25 conversations with them?

0070

01 A I have not followed up on it. There may be some

02 additional things. I have not had time to personally go

03 through some of their files, and they don't apparently

04 have a library indexing system for archival type materials

05 like some other agencies have, but they did send things

06 routinely to the state library and it was filed in various

07 forms there, so we focused primarily on the state library.

08 Q Have you done any reports thus far documenting

09 the work that you have performed in the case?

10 A No, I have not.

11 Q Are you familiar with the subpoena that was

12 provided to Counsel noticing you for deposition in this

13 matter?

14 A I don't know if I am or not.

15 MR. FITZGERALD: If we could have this marked

16 as Exhibit A, then, and provide it for the deposition.

17 (Marked Deposition Exhibit A.)

18 BY MR. FITZGERALD:

19 Q Particularly look at the final two pages of that

20 document, the next to the last page at the bottom, which

21 should be captioned something like "Documents to be

22 Produced," that and the two or three paragraphs on the

23 final page. Did you have an opportunity to go through

24 that and determine what materials, if any, you had that

25 were responsive to the request for production?

0071

01 A Yes.

02 Q And did you go through that with Counsel from

03 Hopping?

04 A Yes.

05 Q Are there any documents whatsoever responsive to

06 those paragraphs requesting production in this matter

07 which you have not produced at this point through Counsel

08 to the United States?

09 A There may be one or two Xerox reproductions that

10 I didn't see here that I know I had looked at, but I had

11 circulated these around for review and sort of lost track

12 of the originals, so I don't know. Mr. Green may have

13 them.

14 Q Do you recall what those were?

15 A No, not offhand. I just recall there were a

16 couple of documents that were historical type things, a

17 congressional report, 1911, but I know I had read them.

18 They were in the storage box. It came over, and I just

19 didn't see them in here. I didn't QIQC the info that went

20 over and what came over in this box.

21 Q In complying with Exhibit A and complying with

22 the request for production of documents, did you

23 personally go through and collect that material to provide

24 to Counsel, or did you have somebody on your staff do

25 that?

0072

01 A No. I did it all myself.

02 Q So as far as you are aware, with the exception

03 of these perhaps two historical documents, there's nothing

04 else that is responsive that has not been provided?

05 A That's correct.

06 Q Okay. Now, I assume you are excepting from

07 that, based on the agreement of Counsel, some of the

08 billing statements related to your oil company work which

09 would be responsive to the final paragraph?

10 A That is correct.

11 Q Okay. Counsel indicated at our discovery

12 session on Wednesday last that there might be one or two,

13 perhaps three other documents, two to three pages each,

14 also not being produced. Are you familiar with those

15 documents?

16 A I don't know what they would be unless they were

17 letters or memos or status documents that I jotted off

18 over the past few weeks or months.

19 Q Why have you not produced them in response to

20 the Request for Production of Documents?

21 MR. PERKO: For the record, those are three

22 letters or memoranda that Dr. Herbert was authorized to

23 address to my firm, and they reveal work product

24 information and that was why they were not produced

25 MR. FITZGERALD: I am sorry, Counsel, but I

0073

01 can't accept that. Work product for a witness you have

02 designated in this case related to the work he is doing in

03 this case and you think that is work product that need not

04 be produced?

05 MR. PERKO: These particular letters revealed

06 the thought processes of attorneys to which they were

07 addressed; therefore, they're work product.

08 MR. FITZGERALD: Are you going to produce them

09 on a privilege list with respect to those three?

10 MR. PERKO: Yes. I can do it right now.

11 MR. FITZGERALD: Mark the privilege list as

12 Exhibit B.

13 (Marked Deposition Exhibit B.)

14 BY MR. FITZGERALD:

15 Q Doctor, can you take a moment and look at

16 Exhibit B for the purpose of this deposition?

17 A ( Witness reviews document. )

18 Q Do you recall, from that listing of three

19 letters with the accompanying dates and subject matters,

20 drafting and sending those letters to Mr. Green?

21 A I recall writing them, yes. They were --

22 Q Do they reflect your proposal for work to be

23 performed, or do they reflect Mr. Green's?

24 A As I recall, we talked -- we had discussions

25 about the status and where we were going with our

0074

01 research, and since I am working mainly as a consultant to

02 the firm, I was pretty much restating what we had talked

03 about in terms of what Mr. Green's direction to me was as

04 far as what he wanted me to do next as far as research

05 areas, not from the standpoint of working with a client or

06 another consultant. It was more that we discussed it and

07 he directed me to do certain things, and I came back with

08 a letter saying, "This is my understanding of what I am

09 supposed to perform."

10 Q Do you have notes of those conversations?

11 A No.

12 MR. FITZGERALD: Can you mark the transcript at

13 this point and give me from Counsel's statement asserting

14 privilege to here on an expedited basis, just those few

15 pages?

16 THE REPORTER: Yes, sir.

17 BY MR. FITZGERALD:

18 Q I understand you haven't issued any final

19 report, but have you memorialized any of your conclusions,

20 even with regard to the quality of the photography

21 available in any interim reports?

22 A No.

23 Q Is it possible, in your opinion, to divine

24 anything about surface water quality or groundwater

25 quality from tonal differences on aerial photography?

0075

01 A Surface water quality or groundwater quality?

02 Q Yes.

03 MR. KOBELINSKI: Object to the form; compound

04 question.

05 THE WITNESS: In the sense of gross

06 contamination, if you were looking at an oil spill or a

07 slick or some water-borne surface contaminant, yes, you

08 could see it on aerial photography, if it was flown at the

09 right altitude, at the right time and the right light

10 conditions. As far as groundwater, no.

11 BY MR. FITZGERALD:

12 Q How about dissolved nutrients; could you

13 ascertain that from aerial photography?

14 A I don't believe you could.

15 Q Does the presence or absence of water in a marsh

16 area affect the tonal quality of aerial photography?

17 A Yes.

18 Q How do you plan to take that into account with

19 your historic photography, that predating 1990, let's say?

20 A Usually the pattern for water is a much darker

21 shade of gray and you can usually see either the darker

22 patterns or, depending on the sun angles, sometimes see

23 reflection off of standing water, so you get an idea of

24 what the water pattern looks like and then follow it back

25 into the vegetative areas.

0076

01 Q Have you considered how, if at all, you will

02 take into account variations in paraphyte and mat in the

03 Everglades marsh in interpreting the tonal differences in

04 the historic photos?

05 A I think the paraphyte and mat issue is something

06 the botanist is going to have to determine. I am not

07 familiar with that.

08 Q Have you discussed that as yet with Ms. Dubber?

09 A No.

10 MR. FITZGERALD: Counsel, this resume, is that

11 one we can use for the record?

12 MR. PERKO: Yes.

13 MR. FITZGERALD: I would like to just make the

14 resume Exhibit C and ask Dr. Herbert to look at it and

15 verify that it is his current resume and tell us if there

16 are any additions that ought to be made.

17 THE WITNESS: It is a current resume.

18 (Marked Deposition Exhibit C.)

19 BY MR. FITZGERALD:

20 Q Doctor, are you familiar with the term

21 georectify?

22 A Georectify?

23 Q Uh-huh.

24 A Not specifically, no.

25 Q What term would you use for the process you

0077

01 described before the lunch break to determine the precise

02 geographic location of something depicted in historic

03 imagery?

04 A The specific term?

05 Q Yeah, if there is one. You didn't like my term,

06 so I want to know what yours is.

07 A Well, the photo rectification, if there was a

08 problem with the alignment of photograph, that is

09 something that is done in the photo lab, what I would

10 describe, generally the process would be one of photo

11 interpretation of common points on aerial photo imagery.

12 Q Okay. Going to the box labeled 37, materials

13 you provided in discovery, there is a red binder. On the

14 spine is captioned "The SWEPI Geophysical Exploration

15 Handbook for South Florida," with the date of 22 December,

16 1987. Are you familiar with that document?

17 A Yes.

18 Q What was the purpose for which this document was

19 produced?

20 A We developed the handbook for Shell Western to

21 provide a sort of one source document that provided basic

22 information that was being asked for by various regulatory

23 agencies and interested parties, so we made about 70

24 copies of that and tried to answer many of the technical

25 questions in one volume.

0078

01 Q The Mr. Hewett, who signed the cover letter in

02 there, who is with Shell Western, he did not produce this?

03 A No.

04 Q Your firm produced it, correct?

05 A Correct.

06 Q Which consultants, if any, did you use to assist

07 in preparing the portions of that compendium that deal

08 with environmental issues?

09 A Which one, specifically?

10 Q Go ahead and take a look. There's a lot of

11 different sections in there. Did you use many different

12 consultants?

13 A No.

14 Q Section 2 is captioned "South Florida Surface

15 Environments." Do you recall what consultants you would

16 have used for that portion?

17 A I probably would have -- I think I wrote it up

18 just as sort of a general statement of surface conditions.

19 We were looking at whether or not it was muck soils or

20 marrow or bedrock or whether it was in cypress prairies or

21 cypress domes or that sort of thing. It was more of a

22 generic overview of the vegetation soil types that we got

23 from the literature.

24 Q A portion of it deals -- Section 14 -- with

25 geophysical operations - safety/fire protection. Did your

0079

01 firm develop that in-house or did you use a consultant for

02 that?

03 MR. KOBELINSKI: Counsel, you referred to

04 Section 14. Is that still within Section 2 that you're

05 referring to? Oh, it's a different section. I'm sorry.

06 THE WITNESS: This section, as I recall, was

07 developed jointly. We wrote it after discussing safety

08 aspects with the Shell personnel who were responsible for

09 safety at the site.

10 BY MR. FITZGERALD:

11 Q Have you examined in any way as yet the effect

12 that fire in the Everglades eco system would have on photo

13 interpretation from tonal differences in historic photos?

14 A I've seen evidence of fires on some of the

15 photography that I have already obtained. I am familiar

16 with fire and have been there when sawgrass was burning

17 and have been around it.

18 (Discussion off the record.)

19 MR. FITZGERALD: Let's start over.

20 ( Question read by reporter.)

21 THE WITNESS: Yes, I am familiar with tonality

22 problems and quality related to fires on the surface.

23 BY MR. FITZGERALD:

24 Q How do you rectify aerial photography to a map

25 projection? What system do you use? Do you use the state

0080

01 plane? Do you use UTM? What mechanism do you plan to

02 employ in your study?

03 A I would have to defer to George Cole on that.

04 We haven't decided.

05 Q So you are going to defer to Mr. Cole on that?

06 A Yes. We haven't discussed it. We haven't

07 gotten that far with our deliberations.

08 Q And the final section in the SWEPI Geophysical

09 Exploration Handbook I wanted to ask you about was Section

10 16 captioned "Environmental Concerns - Vegetation

11 Impacts." Do you recall who drafted that portion, any

12 outside consultant, specifically Subsection 2 and

13 Subsection 6?

14 A May I look at it?

15 Q Vegetation Regrowth and Long-term Impacts (Marsh

16 Areas)."

17 A (Witness reviews document.)

18 (Short recess taken.)

19 BY MR. FITZGERALD:

20 Q So the pending question is, did a consultant

21 assist in drafting those two subsections, or was that done

22 in-house?

23 A I thought we were talking about Subsection 16.

24 Q We were talking about Section 16, Subsections 2

25 and 6, vegetative impacts and vegetative changes.

0081

01 "Vegetative Regrowth and Long-term Impacts (Marsh Areas)."

02 A Sections 2 and 6?

03 Q Yes.

04 A These were not sections that were done outside.

05 These were specific responses to Park Service concerns,

06 one of which was on regrowth of primarily cypress, stunted

07 cypress, and we had made some field observations while we

08 were out surveying when a certain size cypress that had

09 been trimmed by a survey party crew member and that they

10 had sprouted within two weeks after it had been trimmed.

11 That was a specific question that had been brought up over

12 and over and over again by the Park Service, and we

13 included in Section 16-2 a picture of cypress that is --

14 small cypress that had been trimmed and was regenerating.

15 We knew the particulars of when that had been cut and when

16 I personally took this photograph, so I included it in the

17 text.

18 Q You called it "stunted cypress." That's

19 not --

20 A That's just my term. It goes by a bunch of

21 names down there in the Big Cypress. A lot of people call

22 it hat rack cypress.

23 Q Hat rack cypress. Okay.

24 A It's just small cypress that are four or five

25 feet high that are all over the area. We had to work in

0082

01 and around it a lot.

02 Section 16-6 was an area that Shell -- is a

03 photo of an area that Shell had done work in the marsh

04 portion of Hendry County, and we had flown some

05 photography 24 months after the date of the field work and

06 we were unable to see any impacts at that time of the

07 seismic activity. Again, that was just a photograph with

08 some explanatory text that went with it that I wrote up.

09 Q So both those segments were based on empirical

10 field observations and not on any theoretical familiarity

11 with the area; it was based on actual results by ground

12 examination?

13 A Before and after, can you see anything on the

14 ground, yes or no? And it was directed to specific --

15 this response was generated for specific questions by the

16 Park Service.

17 Q The Kucera photos from 3-12-89 or something like

18 that, the large scale photos, do you know what scale those

19 were flown at?

20 A I would have to go back to my notes. The main

21 criteria was that we wanted good quality when we went to

22 one inch to four hundred feet. That's what the DER

23 required to be flown -- to have available as far as the

24 permit application. If I had to guess, it was probably

25 one inch to two thousand foot negative and was probably

0083

01 enlarged to five times.

02 Q What is your knowledge of the historical

03 development of the Central and Southern Florida flood

04 control project?

05 A I have done considerable reading on historical

06 development in the Everglades up through the creation of

07 Central and Southern, 1947, and the various works that

08 were created under the direction of the Corps and the

09 Flood Control District, and I was working as a staff

10 member at the Florida legislature in 1974 and '75 when the

11 Flood Control District and the Water Management System was

12 created by the legislature and put into place. I was a

13 staff advisor and I worked on the legislation that

14 implemented the South Florida District as it is at this

15 time.

16 Q Is that the same basis for your knowledge of the

17 development of adjacent urban areas?

18 A The development of urban areas is from personal

19 observation since 1973, since I've been in Florida, plus

20 looking at the historical photography.

21 Q Have you already formed opinion that the natural

22 hydro period and vegetation of what is how the EAA, the

23 Water Conservation Areas and Everglades National Park has

24 been substantially disrupted by the construction of the

25 project and the development of adjacent urban areas?

0084

01 MR. KOBELINSKI: Could you read back that

02 question?

03 MR. FITZGERALD: Why don't I repeat it. It

04 would probably be easier.

05 BY MR. FITZGERALD:

06 Q Is it currently your opinion that the natural

07 hydro period and vegetation of what is now the EAA and the

08 WCAs and Everglades National Park have been substantially

09 disrupted by the construction of the project and the

10 development of adjacent urban areas?

11 A I think I have a longstanding opinion that the

12 works in the district greatly altered the flow of water

13 through the system. To the extent that the hydro period

14 is regulated, yes, I think district activities and the

15 natural fluctuations in rainfall and storage and discharge

16 have affected the natural hydro period.

17 Q Have you conducted any studies of the other

18 factors that may have contributed or caused alteration or

19 disruption of the vegetation in the EPA, WCAs or

20 Everglades National Park?

21 A Not the vegetation.

22 Q Are you familiar from the work you have

23 described what your firm does with water quality standards

24 in the state of Florida?

25 A Generally.

0085

01 Q Are you familiar with the nondegradation

02 standard for outstanding Florida waters?

03 A I am familiar with it. I have not worked with

04 it exclusively or in any great detail.

05 Q How about the standards for Class 3 waters in

06 the state of Florida; are you familiar with those?

07 A Generally familiar with them, yes.

08 Q Have you been asked to or formed any opinions

09 regarding the effect of nutrients on the EPA?

10 A No, I have not.

11 Q Is it your understanding that any of your work

12 will be addressed to that issue?

13 A I don't believe it will be. I don't normally

14 work in the water quality area. I am only familiar with

15 it from work on previous projects.

16 Q Is part of your work attempting to assess the

17 causation for vegetative changes in the EPA based on hydro

18 period alterations?

19 A I intend to look at the hydro periods over time.

20 Q It's strictly from analysis of photo imagery?

21 A No. Through the literature and historical

22 documentation of what has gone on in the area.

23 Q What documents, if any, have you collected thus

24 far that reflect hydro period alterations and their

25 effect on vegetative alterations in the EPA?

0086

01 A There is quite an extensive list in the SWIM

02 Plan that I have requested copies of, but we have not

03 obtained those yet, so I haven't made any review of that

04 at this time.

05 Q Where did you make that request? Where did you

06 lodge the request?

07 A With Mr. Green. I talked about it with him.

08 The subject of one of the discussions was pulling

09 together future research materials.

10 Q When do you expect to complete your work for

11 Mr. Green?

12 A Probably after the first of the year, sometime

13 in January.

14 Q Does that include the work on the hydro period

15 issue or just the collation of the photo imagery material?

16 A Primarily just the collation of the photo

17 imagery.

18 Q Has anyone ever indicated to you when the

19 hearing in this matters is set?

20 A If they did, I don't recall the exact date.

21 There seems to be an awful lot of variability in what has

22 been done, and things are in a state of flux, and I have

23 been working along on my on business schedule and other

24 issues and working on this as directed. I haven't

25 really --

0087

01 Q Has anyone told you there is no time pressure or

02 urgency in the work?

03 A I don't understand what you mean by "time

04 pressure."

05 Q Did anybody tell you, "No rush, when you get

06 around to it, it's fine, we have plenty of time," that

07 sort of thing?

08 A No, no. Just move ahead on it.