0001 01 STATE OF FLORIDA 01 DIVISION OF ADMINISTRATIVE HEARINGS 02 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 05 and 06 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 09 FLORIDA FRUIT AND VEGETABLE 10 ASSOCIATION, LEWIS POPE FARMS, 10 W.E. SCHLECHTER & SONS, INC., and 11 HUNDLEY FARMS, INC., 11 12 Petitioners, 12 13 vs. 13 14 SOUTH FLORIDA WATER MANAGEMENT 14 DISTRICT, an Agency of the State 15 of Florida, 15 16 Respondent, 16 17 and 17 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, 21 22 Intervenors. 22 ____________________________________/ 23 23 24 24 25 25 0002 01 DEPOSITION OF: THOMAS A. HERBERT, Ph.D. 01 02 DATE: November 30, 1992 02 03 TIME: Commenced at: 10:00 a.m. 03 Concluded at: 2:10 p.m. 04 04 LOCATION: U.S. Attorney's Office 05 315 S. Calhoun Street 05 Fourth Floor Conference Room 06 Tallahassee, Florida 06 07 REPORTED BY: KAREN L. BEGGS, CCR 07 Notary Public in and for the 08 State of Florida at Large 08 09 09 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 ACCURATE STENOTYPE REPORTERS, INC. 24 100 SALEM COURT 24 TALLAHASSEE, FLORIDA 32301 25 (904) 878-2221 25 0003 01 APPEARANCES: 01 02 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 05 GARY V. PERKO, ESQUIRE 06 Hopping, Boyd, Green & Sams 06 123 South Calhoun Street 07 Tallahassee, Florida 32314 07 08 08 FOR THE PETITIONERS, FLORIDA SUGAR CANE 09 LEAGUE, INC.; UNITED STATES SUGAR 09 CORPORATION; and NEW HOPE SOUTH, INC.: 10 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 13 13 14 FOR THE RESPONDENT-INTERVENOR: 14 15 THOMAS WATTS-FITZGERALD, ESQUIRE 15 Assistant United States Attorney 16 Southern District of Florida 16 155 South Miami Avenue 17 Miami, Florida 33130 17 18 18 ALSO PRESENT: Mr. Ken Rutchey 19 19 20 20 21 21 22 22 23 23 24 24 25 25 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. I looked at a 09 certain amount of information, and I have requested 10 authorization to move ahead; discussed research plans and 11 just been recently given authorization to go forward. 12 Q When did you receive that authorization? 13 A Last Tuesday or Wednesday. I don't recall which 14 date. 15 Q Tuesday or Wednesday would have been the 24th or 16 25th of November? 17 A Sometime early in the week last week before 18 Thanksgiving. 19 MR. FITZGERALD: Thanksgiving was Thursday, the 20 26th. Can we all agree on that? It would be nice to 21 agree on something. 22 BY MR. FITZGERALD: 23 Q Within the materials you have provided for 24 examination in a box labeled 38 is a blue binder 25 containing a "Draft General Management Plan and Draft 0088 01 Environmental Impact Statement, Big Cypress National 02 Preserve/Florida," with an exterior date of 1989. Is that 03 a document that you maintained personally, or did you 04 acquire that for this case? 05 A It came out of our library. It was relative to 06 work we have done with the Collier interests. 07 Q There are many annotations and highlighting in 08 there. Would those have been done by you or -- 09 A Yes. 10 Q So this document does reflect notes and thoughts 11 that you had. What was your purpose in reviewing the Big 12 Cypress Draft Impact Statement? 13 A We were retained by Collier Resources Company to 14 review the plan and to obtain all of the citations 15 referenced in this plan. We obtained almost a complete 16 bibliographic listing of everything that's referenced in 17 this. We became familiar with the citations as they were 18 used in the document, how the Park Service personnel 19 drafted the plan, how they used particular citations. We 20 then went back to those original citations. Then for a 21 period of time, I worked in concert with Collier staff and 22 we prepared a detailed review and critique of the Draft 23 Management Plan as it related to oil exploration 24 activities that Collier may wish to pursue in the future. 25 Q Did you provide written comments to the 0089 01 Department of Interior and National Park Service regarding 02 the Draft Impact Statement? 03 A I didn't personally. I assisted in drafting 04 about a 100-page response to the Draft Management Plan. 05 Q Was that on behalf of Shell Western? 06 A Collier. 07 MR. FITZGERALD: Counsel, now that I know all 08 the handwritten notes are the witness's, I would like to 09 request a copy of that. We can do it through the same 10 copy service. I do want a copy of it. That's in box 38. 11 It's the only blue binder. The red binder was in box 37. 12 I don't want to mix them up. 13 We're a little bit ahead but I think we will 14 adjourn the deposition at this point and we will renotice 15 once we learn from Counsel that you have got some 16 opinions. 17 (Discussion off the record.) 18 EXAMINATION 19 BY MR. PERKO: 20 Q I have a couple of follow-up questions. 21 Dr. Herbert, in reference to the vegetative surveys that 22 were performed for Shell Western, I believe you previously 23 testified that Kucera performed some overflights because 24 of the generally poor quality of available photos; is that 25 correct? 0090 01 A I believe I said that, yes. 02 Q What photos were you referencing? 03 A These were some photos that were taken in the 04 early 1980s in the northeastern part of the Big Cypress 05 area and primarily in the Big Cypress Preserve Area. 06 These were flown for the Department of Agriculture in the 07 early '80s, and we obtained enlargements from Salt Lake 08 City. 09 Q Go ahead. 10 A One reason I said there was poor quality was 11 that what we found is that the flight lines for most 12 photography flown today is in a north/south alignment. 13 Flight lines are flown north and south. And depending on 14 what scale the original negative scale was versus what 15 scale you needed as your final product, you can only 16 enlarge the negative so far until you start losing 17 quality, image quality. And the seismic lines tend to 18 run, in this case, in a northeasterly/southwesterly 19 direction, and we found that when you try and lay those 20 lines over the photo mosaics and then obtain photography 21 at the scale that you need it at the end product, which 22 was one inch to four hundred feet, generally using 23 off-the-shelf photography in that instance for seismic 24 line delineations was not a very precise way to do it. 25 That was the reason that we went to Kucera and said we 0091 01 wanted to fly the lines and obtain our own negatives and 02 be able to enlarge them in our own facility. 03 Q Were the photographs that you said were taken in 04 the 1980s that were generally of poor quality, are those 05 included in the photographs that you obtained from the 06 Soil Conservation Service in connection with this 07 proceeding? 08 A No, they weren't. 09 Q Were they included in the photographs you 10 obtained from the Florida Department of Transportation? 11 A No, they were not. 12 Q Were they included in the photographs you 13 obtained from the National Archives? 14 A No, they weren't. 15 MR. PERKO: That's all I have. 16 MR. KOBELINSKI: I have none. 17 (The deposition concluded at 2:10 p.m.) 18 19 20 21 22 23 24 25 0092 01 CERTIFICATE OF REPORTER 02 STATE OF FLORIDA: 03 COUNTY OF LEON: 04 I, KAREN L. BEGGS, Certified Shorthand Reporter, 05 do hereby certify that the foregoing proceedings were 06 taken before me at the time and place therein designated; 07 that before testimony was taken, the witness was duly 08 sworn; that my shorthand notes were thereafter transcribed 09 under my supervision; and the foregoing pages numbered 1 10 through 92 are a true and correct record of the aforesaid 11 proceedings. 12 I FURTHER CERTIFY that I am not a relative, 13 employee, attorney or counsel of any of the parties, 14 nor relative or employee of such attorney or counsel, 15 or financially interested in the foregoing action. 16 WITNESS MY HAND this, the 7th day of December, 17 1992, IN THE CITY OF TALLAHASSEE, COUNTY OF LEON, STATE 18 OF FLORIDA. 19 20 21 ____________________________ 21 KAREN L. BEGGS, CCR 22 Notary Public in and for the 22 State of Florida at Large 23 100 Salem Court 23 Tallahassee, Florida 32301 24 (904) 878-2221 24 25 My Commission Expires 12-4-95. 25