1

DIVISION OF ADMINISTRATIVE HEARINGS

2 DEPARTMENT OF ADMINISTRATION

STATE OF FLORIDA

CASE NOS. 92-3038, 92-3039, 92-3040

5 SUGAR CANE GROWERS COOPERATIVE

OF FLORIDA, et al.,

Petitioners,

vs.

SOUTH FLORIDA WATER MANAGEMENT

9 DISTRICT, an Agency of the

State of Florida, et al.,

Respondents.

155 South Miami Avenue

15 Miami, Florida

December 3, 1992

16 9:00 - 11:43 a.m.

19 DEPOSITION OF THOMAS M. JENNINGS, P.L.S.

22 Taken before Lance W. Steinbeisser,

23 Court Reporter and Notary Public in and for the

24 State of Florida at Large, pursuant to Notice of

25 Taking Deposition.

1 A P P E A R A N C E S

3 ON BEHALF OF THE PETITIONERS:

4 Peeples, Earl & Blank

One Biscayne Tower

5 Suite 3636

Two South Biscayne Boulevard

6 Miami, Florida 33131

BY: MR. JONATHAN L. GAINES, ESQUIRE

ON BEHALF OF THE RESPONDENTS:

U.S. Attorney's Office

10 155 South Miami Avenue,

Suite 600

11 Miami, Florida 33130

BY: MR. THOMAS WATTS-FITZGERALD, ESQUIRE

13 ALSO PRESENT: Robert Johnson

I N D E X

16 WITNESS DIRECT CROSS

17 THOMAS JENNINGS 3 --

19 E X H I B I T S

21 EXHIBIT MARKED ON PAGE

22 No. 1 Notice of Taking Dep. 4

23 No. 2 CV 4

24 No. 3 Page 27 34

1 Thereupon:

2 THOMAS M. JENNINGS, P.L.S.,

3 the witness, was duly sworn to tell the truth, the

4 whole truth, and nothing but the truth and

5 testified as follows:

6 MR. GAINES: Tom, before we get

7 started, we have another individual in the room.

8 MR. FITZGERALD: Yes.

9 Accompanying me is Robert Johnson

10 from the National Park Service, Department of the

11 Interior.

12 DIRECT EXAMINATION

13 BY MR. FITZGERALD:

14 Q. Mr. Jennings, I'm Tom Fitzgerald and

15 actually, I think signed the notice that went to

16 you. If not, I probably drafted it and somebody

17 signed it for me setting you for deposition today.

18 Have you been deposed before?

19 A. Not as an expert witness. I gave a

20 deposition once in a civil case.

21 Q. From that point then since it's only once,

22 if at anytime during the deposition you don't

23 understand a question or you would like me to

24 rephrase it because you don't understand what it is

25 I'm trying to ask and this often happens with an

1 expert, please just say so and tell me and I'll be

2 happy to rephrase it.

3 Also, if you want to a take break and walk

4 around or go to the restroom, just let me know and

5 we'll try to accommodate that to the extent that we

6 can.

7 Maybe we could premark a couple of exhibits

8 here and that would speed things along when we get

9 there. Premark Exhibit 1 the Notice of Taking

10 Deposition and as Exhibit 2 the curriculum vitae

11 that I received for Mr. Jennings.

12 (Whereupon, the above-referred to

13 documents were marked as Government's

14 Nos. 1 and 2 for Identification.)

15 BY MR. FITZGERALD:

16 Q. Mr. Jennings, although the notice

17 originally indicated two days for your deposition,

18 because I've been informed by counsel that you have

19 not reached final opinions as yet, we would

20 anticipate not going beyond today certainly and then

21 adjourning the deposition until such time we reach

22 final opinions and conclusions and then bring you

23 back.

24 In that regard, are you aware of the tentative

25 final hearing date in this matter when it would be

1 likely you would be called to testify?

2 A. I was told that not this following

3 deposition but possibly April.

4 Q. And do you anticipate you'll have your

5 final conclusion and opinions by then?

6 A. Definitely.

7 Q. How far in advance of that would you

8 expect to have that final opinion?

9 A. I would anticipate in January.

10 Q. Okay. Were you aware that in the

11 designation of witnesses submitted by your client

12 that they had indicated that you would be expected

13 to have your final opinions by December 15th, next

14 week?

15 A. No, I was not aware of that.

16 Q. Had you provided that date to your counsel

17 to announce to the court?

18 A. Not that I remember. There is a

19 possibility that when we were discussing

20 hypothetical schedules, I might have said if we

21 start on X-such a date, then we would be able to

22 deliver by X-such a date.

23 Our delivery of final data we have to finish

24 the measurements and so I don't honestly remember

25 ever saying that.

1 Q. When were you first retained in connection

2 with this case?

3 A. I think initial contact was made somewhere

4 in late spring and we really started initial

5 preparations in the summer, and then I believe we

6 were contracted and such -- the contractual

7 arrangements were finally worked out somewhere in

8 October, something like that; and we physically

9 started measuring in late October -- not including

10 the reconnaissance. We did some preliminary

11 reconnaissance beforehand.

12 Q. Did you begin your physical measurements

13 in late October?

14 A. Yes, last week of October, I believe.

15 Q. Okay. From the time of initial contact in

16 late spring until the finalization of contracts

17 which you've said was sometime in early mid October,

18 were you paid for your services?

19 A. I think we were reimbursed for our

20 reconnaissance. Other than that, no. We spent a

21 day of preliminary reconnaissance and we were told

22 to turn in invoices for our time and such.

23 Originally up front that was a pleasant

24 surprise, because I had considered that preliminary

25 to the project.

1 Q. Okay. Who made the initial contact --

2 well, your firm?

3 A. Initial contact was paid by Eric Aserlind

4 of Hydrologic Associates.

5 Q. Is that the firm Mr. Waller --

6 A. Yes.

7 Q. -- works with?

8 A. Yes.

9 Q. Had you worked with him in the past?

10 A. No.

11 Q. How about Mr. Waller?

12 A. No.

13 Q. Did they indicate to you why they selected

14 your company?

15 A. They had said they had asked around and

16 asked who did the best job of this and that's why

17 they contacted us.

18 Q. Okay. Tell us a little bit about the

19 company you worked with, Keith and Schnars.

20 Is that a Florida company exclusively?

21 A. Yes.

22 Q. And what's your position formerly with the

23 company?

24 A. I'm the control surveys and G.P.S.

25 supervisor. I believe my title is in the process of

1 being changed to director of geodetic survey.

2 I'm based out of Lakeland, but I provide

3 geodetic survey expertise for the various branch

4 offices.

5 Q. How many branch offices are there?

6 A. Well, let's see. They've closed --

7 there's a Tallahassee office; there is our Lakeland

8 division; the home office is in Fort Lauderdale.

9 We're more centrally located which is why I'm

10 based out of Lakeland. I think we still have a

11 Miami office and I believe that our land office was

12 just recently purchased from the corporation by the

13 people who work for it.

14 Q. So Keith and Schnars is a corporate

15 entity?

16 A. Yes.

17 Q. Is that organized under the laws of the

18 State of Florida?

19 A. Yes.

20 Q. And are you a shareholder or an employee?

21 What's the nature --

22 A. Employee.

23 Q. Salaried employee?

24 A. Salaried employee.

25 Q. Do you make commissions on work you do or

1 just a straight salary?

2 A. No, just a straight salary.

3 Q. How long have you been with the company?

4 A. I came on with Keith and Schnars in 1988.

5 I worked for a branch office, the Gainesville office

6 which now has been bought out by the prime people in

7 that office.

8 Perry McGriff Co., that was the division of

9 Keith and Schnars in Gainesville, and I worked there

10 from 1984 to 1986.

11 Q. Okay. Can you explain what G.P.S. is?

12 A. The condensed version or --

13 Q. The condensed version.

14 A. Okay. G.P.S. is an acronym for Global

15 Positioning System. There are a variety of

16 applications for it. It's based on the military

17 Navstar Satellite System, which is primarily a

18 military system placed upon navigation.

19 There's a constellation of satellites placed

20 twelve thousand miles in orbit above the global

21 atmosphere. They're not geostationary. They rise

22 and set twice a day.

23 Let's see. Some very brilliant people came up

24 with the idea of -- originally, this was never

25 intended to be a survey system. This was intended

1 to be a military navigation. This played a very

2 important role in Desert Storm, but it was during

3 the time -- originally, the shuttle was used to

4 deploy these and when the Challenger blew up; that

5 put the whole deployment off schedule.

6 So what happened was in the interim, it was

7 calculated through relative positioning. This could

8 be used for very precise surveying. So it's an

9 unexpected bonus for the civilian sector and the

10 military that this difficult technique was developed

11 that has grown to be a very valuable asset to the

12 surveying community and such.

13 And for our particular application of this, we

14 use relative positioning with these satellites, and

15 that places satellite receivers put up on survey

16 tripods simultaneously receiving signals from the

17 same instance and time and that is, therefore,

18 reduced very precisely to a three-dimensional sector

19 and without going into the long view of it with the

20 procedures and utilizing good control values using

21 those relative measurements, you can do very precise

22 surveying over large areas.

23 Q. Does that give you a three-dimensional

24 surveying or just two axis?

25 A. Well, it's all three-dimensional. It's

1 kind of hard to explain sometimes, because people

2 are used to normal surveying. Every lot surveys --

3 every large subdivision is plane surveying.

4 We basically make the assumption that the

5 world is flat. Using the Global Positioning System,

6 you're always operating a three-dimensional

7 coordinate system.

8 Q. Does that system give you repeatability or

9 does it give you absolute accuracy?

10 MR. GAINES: Let me object. I object

11 to the form. If you understand his terms, that's

12 fine.

13 BY MR. FITZGERALD:

14 Q. Mr. Jennings, you understand those as

15 terms of art in your field, do you not?

16 A. Yeah, okay. Let me first point out a

17 difference between -- there's one use of the G.P.S.

18 which is just navigation. When you set up a G.P.S.

19 receiver and it just sits there alone, a G.P.S.

20 receiver, because there's a military system, do not

21 communicate with the satellite.

22 The satellite draws the signals down and

23 whoever has the receiver can get them. There's not

24 restricted access per se. What happens is you get a

25 navigational position. That is not usable for

1 surveying per se. That tells you you're within a

2 certain tolerance. That's the navigational

3 position.

4 So you're question on repeatability, the

5 navigational position within this tolerance tends to

6 oscillate around and that signal is intentionally

7 degraded by the military to deny access of that to

8 enemies of the United States. Saddam Hussein used

9 G.P.S. receivers when they had SKUD missiles that he

10 pulled out from over the palaces and things.

11 One of the ways he was able to set them up to

12 get longitude and latitude and -- thank heaven he

13 didn't have good guidance; but one of the things

14 military uses G.P.S. for is weapons delivery systems

15 with the use of vessels.

16 So the reason time positioning is potentially

17 damaging is to have enemies of the United States

18 have that or not unauthorized people.

19 So G.P.S. has the capability of -- just with

20 the single receiver to get you within ten feet of

21 your true position. However, the military

22 intentionally degrades that real time signal, so

23 that it is not -- it is more like a couple hundred

24 feet. So in that sense that is not good

25 repeatability. Some care to say Loran Unit,

1 L-O-R-A-N.

2 However, the survey application is not the

3 navigation with the single unit. It is a relative

4 positioning and that is having multiple receivers

5 occupying stations at the same time and create a

6 control network. And this is where all your quality

7 control comes from, because you're not just saying,

8 I'm relying on this magic box to give me coordinates

9 coming from this area. They are expensive, so they

10 must be good.

11 That's using the sound survey procedures

12 designing a network to where you have redundant

13 measurements and you can isolate the ones that

14 cannot be distributed.

15 You're basically -- by building the network

16 you can isolate where you don't have good solutions.

17 It's important to a redundancy measure and the

18 network structure. So that is where, in the sense

19 of a repeatability, by building a good network, yes,

20 you have a tremendous repeatability and by using

21 proper control.

22 So through procedures and control, yes, you

23 have repeatability. But, you know, I'm not trying

24 to complicate this but there are -- that's different

25 from setting up with a receiver and just getting a

1 navigational position to navigate a boat somewhere

2 or even the survey receivers. When you set them up

3 you get a navigational position; but until you take

4 that back and process it through and solve through

5 the vectors where that station is relative to the

6 other, all you have is a navigation system.

7 Q. Now, when you set up your net, you are

8 locating each one of your net receivers by the

9 G.P.S. signal itself?

10 A. Yes.

11 Q. Okay. And you said earlier that you get

12 relative accuracy.

13 Do you mean relative to the receiving net, so

14 that when you survey within inside the receiving

15 net, you're basing any datum as an offset of the

16 net?

17 A. Okay. Let me try to understand that.

18 Okay. When I say relative is when you get to a high

19 degree of precision is where one receiver is in

20 relation to another receiver that was set up at the

21 same time or any that are up receiving the signal

22 simultaneously; therefore, you make your grid and

23 then in that network you have to incorporate known

24 control points. National Geodetic Survey signaling

25 horizontal control, that orients that network to the

1 real world.

2 Q. That's understanding my question exactly.

3 What kind of accuracy would you expect to get

4 from a well-designed net if you have sufficient

5 control points to orient your net?

6 MR. GAINES: Wait a minute. You're

7 asking him like plus or minus number of inches or

8 centimeters or something that -- is that your

9 question?

10 MR. FITZGERALD: Yes, or meters

11 whatever system you want to use.

12 THE WITNESS: I would say

13 sub-centimeters, sub-to centimeters.

14 BY MR. FITZGERALD:

15 Q. Would that be on all three axis?

16 A. The function -- okay. The function --

17 now, when you say the three axis you're saying

18 latitude and longitude and vertical?

19 Q. Yes.

20 A. It's kind of apples and pears, because

21 we're operating three axis and three dimensional and

22 we're getting three dimensional.

23 The relative measurement is a precise function

24 of the model of the geoid because to relate G.P.S.

25 derived heights, everything is with reference to a

1 reference ellipsoid. The reference ellipsoid is a

2 precise mathematical model. It has to be.

3 The geoid is based on gravity measurements

4 performed by the National Geodetic Survey modeling

5 the shape of the earth.

6 So the precision of our vertical measurements

7 once you get past the precision that we have

8 establishing for the relative position of things,

9 how precise the vertical we get is how precise the

10 model the geoid we have, and the National Geodetic

11 Survey came out with a Geoid 90 within the past

12 couple of years which is used to get orthonometric

13 heights, which are the heights that we base

14 everything on.

15 Ellipsoidal heights are not what -- to take

16 the raw differences with the satellites and not

17 applied to the geoidal separation is not -- is a

18 problem. And there are some people using G.P.S. to

19 handle that seem to acknowledge that.

20 Q. Have you established a G.P.S. net in the

21 EPA?

22 Do you understand the term EPA as meaning the

23 Everglades Protection Area?

24 A. I know I'm working in Water Conservation

25 Area 2A and a part of 3A, so if that is in the

1 EPA --

2 MR. GAINES: Tom, let me just get

3 this straight. You're starting to get into the work

4 he's doing here. As he said earlier he hasn't

5 reached a final opinion and we have made that

6 available pursuant to your notice; and I have a

7 problem with you getting into what he's working on,

8 how he's going about it. I just don't want to get

9 into a situation when he does reach a final opinion

10 where we're going back over the same ground twice.

11 So at the follow-up deposition which

12 is anticipated, you know we would object to going

13 over the same topics and areas that are gone over in

14 this deposition.

15 MR. FITZGERALD: I don't see it's of

16 interest to any of the parties to repeat merely for

17 the sake of repetition in a subsequent deposition

18 what we're covering now.

19 I intend to cover everything we

20 possibly can today and then focus the following

21 deposition only on the final opinions and probably

22 ask some shotgun questions about remembering

23 everything you said. Did you use a different

24 method, et cetera, to qualify as necessary and

25 certainly by then Mr. Jennings, you would have the

1 transcript from this and would have an opportunity

2 and I'm sure counsel would urge to you review it.

3 So as I say it's in no one's interest to drag the

4 process out and it's our intent --

5 MR. GAINES: It sounds like we're

6 basically --

7 THE WITNESS: To specifically answer

8 your question, we are at this moment still finishing

9 the establishment of that.

10 BY MR. FITZGERALD:

11 Q. So the receivers are not installed in the

12 field at this juncture?

13 A. They're there as we speak.

14 Q. Somebody's there putting them down?

15 A. They're there measuring.

16 Q. So it would fair to say then you're in the

17 datum collection mode?

18 A. Very much so.

19 Q. Have you calibrated your net --

20 A. Calibrated?

21 Q. -- in the sense you were saying oriented?

22 A. Okay. We are in the process of

23 establishing the measurements of the network with

24 the control. We've already done the control

25 reconnaissance. In fact, that was the earliest part

1 of the job to even come up with a methodology what

2 control is available.

3 Q. With respect to Water Conservation 2A, how

4 much of that are you attempting to map? I assume

5 that's the purpose of all this effort.

6 A. Yeah, I have a little bit of tunnel

7 vision. You tell me what's your pleasure and I'll

8 measure it type of things. I believe we are --

9 ultimately the purpose is to come up with a

10 topographic map of sorts.

11 Q. The mathematics for which your firm has

12 been retained actually producing the topographic

13 map --

14 A. We are making the measurements and

15 producing a -- certifying to the measurements we

16 made.

17 Q. What form will your final product take

18 when it's ready?

19 A. We will have a certified drawing of the

20 G.P.S. network which I will certify that the

21 procedures and standards meet or exceed the Federal

22 Geodetic Control, relative positioning using low

23 positioning systems, techniques to a certain order

24 and that it meets or exceeds those procedures.

25 We will also be preparing a certified drawing

1 of the soundings and muck probes that were taken and

2 more of in a hydrographic application coming off of

3 our control network that we've established within

4 the areas.

5 Q. Your soundings and probes, do I understand

6 your firm is conducting those as well as part of

7 this?

8 A. Yes.

9 Q. Is the purpose of conducting soundings and

10 muck probes so that you can, in your topographic

11 map, locate, in fact, the geologic features

12 underlying any water or vegetation that may be

13 present in the conservation areas?

14 A. I believe so. We're going to say where

15 the rock is beneath the muck, where the muck is

16 beneath the top of the water, and where the water is

17 in relation to the staff gauges which are calibrated

18 to a control station.

19 Q. Your pool surface measurements, will they

20 not be dependent on the water stage at any given

21 time?

22 A. Yes.

23 Q. So if the water stage changes after your

24 measurements are conducted, one would have to

25 correct for that?

1 A. Yes.

2 Q. Using your projection, I assume there will

3 be something on this ledger of sorts, which say

4 lengths and the mean low water as normal chart,

5 would say that you can --

6 A. It would explain the dates. Part of the

7 surveys would be the dates the measurements were

8 taken and such.

9 Q. And water stage?

10 A. I'm not sure of that term.

11 Q. Well, you said water stage -- the water

12 development?

13 A. As of that day.

14 Q. The height of the pool surface?

15 A. I should point out that as the

16 hydrographic -- another professional land surveyor,

17 Jim Owens, who is my assistant, is going to be

18 certifying the hydrographic work.

19 Q. Is it intended that he would testify as

20 well regarding that?

21 A. Yes.

22 Q. How large a team does it take to run this

23 G.P.S. network and conduct the type of mathematical

24 analysis to finally produce the typographic

25 projections?

1 A. This computation and reductions will be

2 handled by Jim Owens and myself. And we have four

3 technicians operating four G.P.S. receivers on the

4 project and then we use the services of CAD, C-A-D.

5 It's Computer Assisted Drafting.

6 Q. So you use four G.P.S. receivers to

7 establish your network?

8 A. We're using five right now, just because,

9 obviously, production is of the essence here.

10 Q. How much of Water Conservation Area 2a are

11 you going to attempt to produce a topographical map

12 for?

13 A. I believe we're running on whole minutes

14 of longitude lines, running the sounding lines. So

15 that is approximately a nautical mile and we're

16 taking along those lines -- we are taking every

17 three thousand feet.

18 MR. GAINES: Okay. His question was,

19 I think, how much of WCA 2a are you trying to cover.

20 BY MR. FITZGERALD:

21 Q. Are you going to model, if you will, the

22 entire water conservation area?

23 A. Well, what we're going to certify to is

24 what we got where we took the measurements.

25 Q. Okay. Where are your five receivers

1 located?

2 A. Okay. I have to explain something. The

3 five receivers are establishing the network within

4 there and we have an approximate grid. I believe

5 it's roughly of three to -- two to three-mile grid

6 of control pieces. That's our control and we have

7 staff gauges at those stations, pipes set to refusal

8 which we have some structures that we set up over

9 and all that.

10 Those are control; and running the positioning

11 lines we're using a different application of G.P.S.

12 called Kinematic Positions, because the horizontal

13 position is not necessary to be as precise. Where

14 we are taking those probes and things, the G.P.S. is

15 not being used for any kind of vertical measurement

16 running those lines.

17 We're using a position so we can correct up

18 and know right where we took the shot to within a

19 few meters tolerance and then we're measuring, I

20 believe, within those are the government -- I think

21 it's -- I believe they're done with spec metering

22 rods. They have a little foot that -- try to keep

23 it going down in the muck, and we're simultaneously

24 having someone get the reading on what the various

25 staff readings averaged a project around the

1 parameter and such.

2 So we're able to get a good feel as to when we

3 take the measurements of what the water level was at

4 that particular time.

5 Q. And the final map that's put on the table

6 or on the wall, will it cover the entire WCA-2A?

7 A. If we are able to get access. What we are

8 contracted for is where we can get access to take

9 the measurements. We're up against logistical

10 considerations in there; and if we can get in there

11 and take the measurements, we will have a

12 representation.

13 Q. When you say logistical considerations, do

14 you mean getting an airboat or a track in there? Do

15 you mean some government entity is refusing you

16 access?

17 A. Correct. It's a physical issue. We have

18 some willows that -- airboat drivers thought we were

19 trying to destroy their airboats running through and

20 if we can overcome those logistical requirements, we

21 will have measurements in there.

22 Q. And then you will attempt to map the

23 entire 2A?

24 A. I believe that's the intent. I'm not

25 absolutely positive of what the jurisdictional lines

1 of that water area are. I don't want to misspeak on

2 that.

3 Q. Okay.

4 A. I know that we are working inside the

5 levies to the south, northeast, northwest, and U.S.

6 27 on the west.

7 Q. Okay. So you're entirely inside the

8 levies and you know you're in 2A because that's the

9 area you're mapping and you certainly know where you

10 are.

11 Based on my experience, if I suggest to you 2A

12 does not exist beyond the boundaries of levies --

13 are you going to map the whole thing on the inside

14 levies, that's the whole question.

15 A. Given the constraints in our role in this,

16 we will map wherever we're told to map.

17 Q. I guess, where have you been told to map?

18 A. Where we can get access to and measure.

19 Q. If you can't get access into some portions

20 of WCA-2A or 3A because of physical limitations,

21 will you simply leave that portion of the chart

22 blank and put in the ledger column graffiti, here

23 there be dragons?

24 A. I can't certify to work that is not based

25 on our measurements.

1 Q. So you would just exempt out that portion?

2 A. If that is the case.

3 Q. If it is okay, with respect to

4 Conservation Area 3A which is considerably larger

5 than 2A, how much of that are you attempting to

6 chart?

7 A. I believe it's the northern portion.

8 There is a levy that runs along to the north and it

9 is a triangular portion to the north. We have only

10 three of the interior control points and then we're

11 running the lines of -- or lines of individual

12 minutes of longitude within that area. I honestly

13 don't know the exact, you know, cubic or square foot

14 area.

15 Q. And do you have to establish a separate

16 G.P.S. receiver net for that area or can you relate

17 back to the net you've got set up in 2A now?

18 A. It is going to be attached interval to

19 that and for a couple of reasons. One, we're basing

20 it all on the National Geodetic precision network.

21 It will be attached. It will be run as a continuous

22 adjustment.

23 Q. Okay. So the five ground stations or

24 receivers that you have set up, do they encompass

25 the entire area of 2A and 3A; or are they strictly

1 surrounding 2A and then you offset for the work you

2 do in 3A?

3 A. No. We're creating an interval network

4 that extends from surrounding 2A and the control.

5 We're actually going outside of the area for some of

6 the control. National Geodetic Survey has a high

7 order bench run they recently completed down 27 and

8 down to the levy of the north -- I guess in

9 preparation for what's going on with this particular

10 issue, timing-wise.

11 Q. No, no. It's just your government in

12 action.

13 A. They're good guys. Again, G.P.S. is only

14 as good as the control it's based on.

15 Q. In your resume it makes mention of

16 Geodetic Control Surveys.

17 Could you define for us what is meant by that

18 term?

19 A. Okay. I think strictly the Florida

20 statutes define it as a survey that takes into

21 account the shape and size of the earth, more

22 specifically in surveying terms geodetic surveys or

23 higher precision surveys where special techniques to

24 obtain precise locations are employed.

25 Q. Also I note some in your detailed work

1 history, and this is on Exhibit 2 which has been

2 provided to everybody and premarked, you have done a

3 number of densification projects for different

4 municipalities and/or cities.

5 What's a densification project?

6 A. Okay. A densification project is a

7 densification of geodetic control. And that is --

8 you may have heard -- they're one of the buzz words

9 nowadays GIS/LIS, Geographic Information System,

10 slash, Land Information System. It is a very growth

11 industry oriented type of thing.

12 The National Geodetic Survey and state

13 agencies and municipalities which who are, in my

14 personal feeling, on the right track are concerned

15 these are oriented to a consistent control

16 coordinate grid and that being the National Geodetic

17 Reference System, that established by the NGS as

18 opposed to local datum here.

19 My analogy is having a bunch of different gang

20 railroad tracks. We have to know it to be the same

21 gauge when you lead from one city to another. What

22 the Department of Natural Resources has been a

23 leader in is getting the control -- a control

24 network established, so that there is more

25 densification.

1 The high precision network is roughly a

2 thirty-mile grid and so that as survey projects are

3 done for the state, for the municipalities and such,

4 these coordinates are real world coordinates placed

5 on these projects that then these papers can be

6 taken into to a data base and they are all on the

7 same datum.

8 This is very important. I think we're going

9 to be seeing more and more of this down the line.

10 There are some things where people are digitizing

11 off of quad sheets which are excellent tools and

12 things. We use them all the time. They're

13 excellent. But the people from USGS will tell you

14 the finest line you can draw on a quad sheet is

15 forty feet wide.

16 Now, there are some people who are using it as

17 a base for geographic digitized lines that are only

18 precise to forty feet and since a lot of where these

19 are going, ultimately some of the end uses --

20 remember, utility companies, they want their

21 underground utilities located to this.

22 We're not that far off our navigation

23 capability and this is already a serious concern.

24 For example, the Department of Transportation,

25 because when they design roads there are coordinate

1 systems when they start here in Miami and when they

2 get to Tampa, they have to be on the same coordinate

3 system and things like that.

4 So it's -- I guess I got sidetracked by -- the

5 densification systems are the foundation for all of

6 this. It's sort of -- I've seen geographic

7 densification as layers. They have like ownership

8 layers -- geological features, layers, many other

9 layers.

10 And those things all have to be oriented to

11 the geodetic framework. That's kind of like the

12 pins go up, that all the layers go down are the

13 control points.

14 The intent is to get the densification down to

15 a level where it is affordable to require surveyors,

16 as they do these projects, to tie to that geodetic

17 network.

18 Q. Okay. In this survey work, what's the

19 difference between a first order and a second order

20 network?

21 A. Level of precision.

22 Q. And what kind of levels would you be

23 certifying to under those two different rubrics?

24 A. Okay. The horizontal position will meet

25 or exceed third order. It will be far in excess of

1 third order procedures. The vertical -- we will

2 specify specifically to linear accuracy in the

3 vertical using the Geoid Model 90, which that is

4 what we will specify.

5 Q. I assume that when your fieldwork is

6 complete and the number crunching gets into full

7 swing, you're using some sort of computer program to

8 do this, not a bunch of pencils and a pad?

9 A. Yes, you can't do G.P.S. without computer

10 programs.

11 Q. And what program are you employing for

12 that purpose?

13 A. Okay. We're using Trimvec, T-R-I-M-V-E-C,

14 Baseline Processing Software. That enables us to

15 create the vectors. We're using various Trimble

16 Utility Programs to help us in evaluating the data

17 and then the final adjustment which is the true

18 evaluation tool on the network is geolab, and we are

19 using various National Geodetic Survey programs,

20 most notably Geoid 90 for the geoidal information.

21 Q. When do you anticipate your fieldwork will

22 be complete?

23 A. With the areas we've been able to get

24 access to and the fieldwork, with the exception of

25 the work that we haven't gotten access to, we'll be

1 done at the end of this week with the data

2 gathering, but it's already being coordinated that

3 we need to get in and try to get into the areas we

4 weren't able to get into. And I can't say how long

5 that's going to take.

6 Q. Okay. If I can ask you to look at

7 Exhibit 2 which was premarked and we've been

8 discussing to some degree, can you go through and

9 tell me if that, in fact, is your current resume or

10 whether there's any additions which you think is

11 significant enough that they ought to be on there?

12 A. Well, the summary of experience -- I have

13 over sixteen years now. I'm about to be an

14 immediate past president of the G.P.S. Users' Group.

15 I believe that's current.

16 Q. Do you have any background in inundation,

17 I-N-U-N-D-A-T-I-O-N? I can barely say it. There's

18 something about the double "n."

19 A. Absolutely not.

20 MR. GAINES: Tom, let me clear up

21 something. I think what you're looking at is the

22 description of his area of testimony. One of the

23 references in there I think referenced his

24 hydroperiod in inundation.

25 Mr. Jennings is not going to be

1 offered in those areas. His participation here is

2 going to be limited to the work he's talking about

3 and producing these topographic surveys.

4 MR. FITZGERALD: It's certainly why I

5 was inquiring because it didn't seem to match his

6 experience; but let's let the witness tell us.

7 BY MR. FITZGERALD:

8 Q. Do you have any experience in analyzing

9 hydroperiods or if you even understand the term --

10 it's somebody else's area.

11 A. Peripherally, no.

12 Q. Do you have any experience in the analysis

13 of either historic or current levels of water in the

14 Everglades Protection Area?

15 A. No.

16 Q. So essentially you would expect your

17 testimony then to deal with surveying techniques and

18 results in those two water conservation areas?

19 A. Correct.

20 Q. The topography of the areas that are the

21 basis or are encompassed by the data base you

22 required methodology by which you arrive at your

23 final product?

24 You have to answer. Shakes of the heads

25 don't --

1 A. I'm sorry. Yes, that is --

2 Q. Okay. Have you ever seen your designation

3 as a witness indicating what areas you would be

4 testifying to?

5 A. No.

6 MR. FITZGERALD: Okay. Mark this as

7 3.

8 (Whereupon, the above-referred to

9 document was marked as Defendants'

10 Exhibit No. 3 for Identification.)

11 BY MR. FITZGERALD:

12 Q. Okay. Showing the witness Exhibit 3 for

13 this deposition, which for the record is Page 27 of

14 the final designation of expert and fact witness.

15 It's Page 27, Paragraph 33 which is the most

16 recent of what we've seen. I'll show it to counsel

17 and I'm sure he'll recognize it and there's an extra

18 for you.

19 Okay. Is your office address correct,

20 Mr. Jennings, on Drane Field Road?

21 A. Yes, that's correct.

22 Q. Drane Field Road, what a great name.

23 A. I know this is not germane to the case,

24 but it is not like a drain field of the septic tank.

25 That was my initial thing when I moved to Lakeland.

1 Those clowns here can't spell drain field. There's

2 a military field there, a training base, and it's

3 named after General Drane.

4 Q. And, of course, the General Background

5 Information is not -- is it not under

6 Subparagraph A?

7 A. Yes.

8 Q. And Subparagraph B, that's what we just

9 reviewed, and in fact other than what you will

10 derive the topography of EPA water levels at the

11 time of your data collection, you do not expect to

12 testify at all about hydroperiod and inundation?

13 A. No.

14 Q. Were somebody to give you hypothetical

15 situations after your data collection and your final

16 opinions regarding certain water stages or water

17 levels, would you then be able to determine, based

18 on the other work you've done, whether a particular

19 area would be inundated or not?

20 A. I would say no. Really, all I think is

21 appropriate for me to certify to is the

22 measurements.

23 Q. Okay. Subparagraph 3, Substance of

24 Expected Testimony, I think we've really gone

25 through that already. Those were the questions I

1 asked already.

2 Grounds and Date for Opinion, have you ever

3 reviewed the Everglades SWIM Plan as adopted by the

4 plan of South Florida Water Management District?

5 A. No.

6 Q. Have you ever reviewed the bibliography

7 from that plan?

8 A. No.

9 MR. FITZGERALD: Counsel, do you plan

10 to amend this and deny the reference that one of

11 grounds or basis for opinion is the SWIM Plan

12 related documents and data?

13 MR. GAINES: I don't have any

14 intention to amend this at this time although I will

15 note that there is a typo in here referencing

16 December, 1993.

17 I think that was supposed to be

18 December, 1992, and as I understand Mr. Jennings,

19 that's more likely to be January.

20 MR. FITZGERALD: As an aside you

21 might want to have somebody take a look at the

22 designation. We found a couple of other 1993

23 December dates which kind of gave us pause.

24 MR. GAINES: I'm assuming this is a

25 typo.

1 BY MR. FITZGERALD:

2 Q. Just to clarify then, do you anticipate

3 that any of the opinions you do ultimately form

4 conclusions are going to be based on that SWIM Plan

5 document --

6 A. No.

7 Q. -- or the data therein --

8 A. No, they will be purely based on our

9 measurements.

10 Q. You mentioned earlier that you

11 occasionally or have built into this networking

12 system a mechanism for identifying or resolving

13 outliners in the data?

14 A. Yes.

15 Q. What's the methodology for that?

16 A. Okay. Various -- the methodology is when

17 I spoke of the Geolab Adjustment Program. Once you

18 have the vectors which is -- we are still collecting

19 vectors right now; but once you have the vectors you

20 then have to construct a network of them and to get

21 the outliners there are -- when you run this

22 adjustment and what you end of up having is a spider

23 web type of look affair when you have a lot of lines

24 coming into one point. If one of those lines is

25 bad, it ends up degrading the integrity of the whole

1 network -- if many of the lines are bad and this is

2 very obvious in trying to run the software.

3 We do a fair amount of culling in the

4 preliminary stage with indicators. They're given,

5 for example, the Trimvec Software to call out

6 obviously deficient lines.

7 Then it's a function of running that

8 adjustment and watching where we're getting

9 deformation caused by these individual lines.

10 That's one of the strongest ones. Another way is

11 running closer routes which is -- it's like closing

12 a traverse.

13 When you have a two-dimensional traverse, you

14 start out with a coordinate. When you sum those up

15 when you got back to the starting point when you

16 physically come back to the point -- but the amount

17 that your coordinates on that route miss the

18 starting point is a indicator of how precise that

19 traverse is.

20 What we do is we run closer routes through

21 these vectors. And that is taking vectors from

22 different sections, different days and summing these

23 components up and closing on a point.

24 That is a good indication to us to the level

25 of precision we have, the amount then that summing

1 those up coming back to the same starting point

2 gives us an idea of our precision and that's where

3 we have seen something out of the sub-to centimeter

4 range. Then we start pulling things out of the

5 detecting where the deficient line is.

6 This is why the network is so important. This

7 is something -- this is not something we made up.

8 This is something that is required on jobs that are

9 submitted to be in the National Geodetic Reference

10 System.

11 Q. So the network design is by far in the way

12 the most critical factor?

13 A. Yes.

14 Q. And you designed it in this case?

15 A. Yes.

16 Q. Okay. Your four technicians are acting

17 under your direction strictly in a data collection

18 mode?

19 A. Yes.

20 Q. And who trained them to operate out in the

21 EPA to conduct that work?

22 MR. GAINES: You're asking him

23 specific training to work in the EPA as opposed to

24 work someplace else?

25 MR. FITZGERALD: Yes.

1 THE WITNESS: We have been working in

2 conjunction with the liaison with the counsel.

3 BY MR. FITZGERALD:

4 Q. Okay. Prior to this project getting off

5 the ground, if you will, had your technicians or you

6 conducted similar projects in large marsh

7 environments in the past?

8 A. I have worked on the edge of the

9 Everglades back in my earlier part of the surveying

10 career. I don't think that was -- I'm not sure if

11 that was considered to be within the environmental

12 area. And I have done -- I did some geodetic

13 control work; that was putting geodetic control on

14 some boundaries -- corners down for the Miccosukee

15 Reservation down off of Tamiami Trail.

16 So we liaisoned -- our technical liaison with

17 counsel advised us of what was -- what in terms of

18 whether we had access to the area of things and as

19 far as guidelines and proper behavior that's been

20 standard procedure as far as --

21 Q. With regard to your techniques, I was more

22 interested in who trained them to operate out of

23 airboats and conduct muck depth tests and determine

24 pool surface depths when operating in a mixed marsh

25 environment, which I think you concede is not the

1 same as going with the staff rod on solid ground

2 someplace?

3 A. Okay. This -- well, this is one of the

4 things we work out in the reconnaissance phase but

5 we relied on Paul Larsen.

6 Q. And did Mr. Larsen or anyone associated

7 with you -- or let me ask you this:

8 Is Mr. Larsen the liaison you're referring to

9 or is it Mr. Waller or his firm that you're directly

10 dealing with?

11 A. No. They were the initial contact.

12 Q. And did Mr. Larsen give you a written

13 protocol to provide to your field personnel or

14 anything like that?

15 A. We worked out a procedure. We worked out

16 a procedure. Ultimately what we -- again, like I

17 said, you tell us where to measure and we'll measure

18 it and we'll certify as how we did the measurements

19 and he suggested that of what he needed. He

20 suggested that I need to know -- you know, the top

21 of this muck.

22 So I would like you to use this particular

23 type of rod with the U.S. Government rod. Then

24 subsequently leave -- oh, and while you're there,

25 get me the muck depths down to rock, probe through

1 the muck and get to where the rock is and so on.

2 So that was arrived at between myself, Jim

3 Owens, and Paul Larsen of how we were going to go

4 about this procedure.

5 Q. Okay; and you have four different

6 technicians going in or one -- do they work as a

7 single team?

8 A. They each run a receiver.

9 Q. Are those same technicians doing the muck

10 soil top measurements and all that?

11 A. Yes. Now, they're not operating the

12 airboats. That's something I specified. You must

13 provide the access.

14 Q. Who's operating the airboats for you?

15 A. Someone -- Paul Larsen made the

16 arrangements.

17 Q. So one of your technicians goes on each

18 airboat --

19 A. Yes.

20 Q. -- determines where he is at the time he

21 takes those tests. He does the tests?

22 A. Yes.

23 Q. Would you agree that since G.P.S., by your

24 description, is so phenomenally accurate that if

25 there were inaccuracies in the measurements, then

1 they would mostly have to arise from the human end

2 of the operation?

3 A. I would agree and we have that in mind as

4 we have instituted procedures to try to take that

5 into account, multiple measurements.

6 Q. Okay. Are those procedures in writing?

7 A. They would be documented in the field

8 notes, in the field books. In other words, so many

9 readings they took at the point.

10 Q. But your field notes would not reflect the

11 physical parameters of how each technician conducts

12 his test or his probe to surface or --

13 MR. GAINES: I object to the form of

14 the question.

15 MR. FITZGERALD: Okay. Do you

16 understand?

17 MR. GAINES: Physical parameters.

18 THE WITNESS: Okay. The physical

19 parameters.

20 MR. GAINES: I just think it's a

21 vague question. I want to understand what you're

22 getting at.

23 BY MR. FITZGERALD:

24 Q. Let me put it a different way and narrow

25 it down.

1 If two different technicians take their

2 sounding rod and press it down against the muck, and

3 they have different sensitivity in their hand or a

4 different physical strength, one may drive it deeper

5 into the muck than the other before he decided he

6 reached the point it should be taken. That

7 variation between the perceptions of two different

8 definitions can introduce a finite error into the

9 system, correct?

10 A. I think that can be estimated.

11 Q. Okay. And you have four different people

12 doing this, correct?

13 A. We have two different individuals taking

14 the rod readings.

15 Q. So you have two doing it.

16 What are the other two --

17 A. Operating receivers, the stationary

18 receivers on the levies. Again, two different

19 operations. I think I was confused there. When

20 they are doing the static work which is establishing

21 the network, there is a man on each receiver and the

22 receivers are up locking data and that is separate.

23 That is separate from when they're working on

24 the airboats along these lines taking the rod

25 readings and solving for the points along the lines.

1 Q. You would agree that there's little room

2 for error in two different people reading digital

3 displays of numbers over a receiver?

4 A. Mm-hmm.

5 Q. But when you put two people in muck up to

6 their waist driving a rod to hit something they

7 can't see, you're more likely to encounter errors in

8 that process than in the process of monitoring the

9 receivers?

10 A. There is more of a human element, yes.

11 Now, they are on the airboats. They are not

12 physically getting off the airboats, but I think a

13 fair estimation can be made for what is a realistic

14 uncertainty of that. I would -- I think that's

15 important that all surveying is a question of

16 precision and that -- you know, depending on the

17 methodology what size of a target are you hitting.

18 Q. None of the software that you've mentioned

19 for rectifying the data or adjusting the final

20 product takes into account that type of error, does

21 it?

22 A. No. The software that I've mentioned is

23 purely for the G.P.S. work.

24 Q. Okay. How are you going to estimate a

25 recount for the potential error from the human

1 element in water depth will, in muck elements, be

2 introduced?

3 A. I'm going to refer that one to Jim Owens

4 because of his hydrographic background, because I

5 think he would have a better feel of experience

6 having done that.

7 Q. Okay. And how much work have you done in

8 the marsh environment?

9 A. I'd have to refer that to him.

10 Q. Okay. What's his position with your firm?

11 A. He works in my department. He's a

12 professional land surveyor working under my

13 supervision.

14 Q. How long has he been under your

15 supervision?

16 A. I believe he came on at least two years

17 ago, and he and I worked together before for a firm

18 in Bradenton. He was my assistant in Bradenton.

19 Q. In the two years that he's been under your

20 supervision, have you done any other geodetic

21 mapping efforts in the Everglades or in a marsh

22 environment that he assisted on at the Miccosukee --

23 A. No, that was before he came on.

24 Q. And when he was an associate of yours in

25 Bradenton, did you have any such products?

1 A. Not within the Everglades.

2 Q. Is Mr. Owens supervising in the field?

3 A. Yes.

4 Q. Has Hydrologic Associates visited the

5 field sites?

6 A. Not during the measurements.

7 Q. Were they with you on the reconnaissance?

8 A. No, but they constructed the structures to

9 hold our tripods and set the stations up. We told

10 them we need a three-mile -- about a three-mile grid

11 out there within the considerations of access and

12 other things.

13 So in other words, we don't really care where

14 that is. You pick -- you know, pick where we -- but

15 we need a grid. We care it's within say -- within a

16 mile of this particular spot here for the integrity

17 of our network.

18 Q. And this was all worked out at a meeting

19 or a series of meetings with that?

20 A. This was, I believe, worked out with Paul

21 Larsen and myself. And that with guidance from us,

22 I believe one of his employees and one of the

23 employees from Hydrologic Associates set the pipes,

24 set the -- they look like "batter-board" structures

25 to hold the tripods and the PBC flags.

1 A great concern of theirs, which also is our

2 concern, is we wanted stability and stability of the

3 station point and stability of the "batter-board"

4 structures and one of their high concerns was that

5 somebody then not run over this stable point and get

6 hurt or anything, and so they had the warning risers

7 and things.

8 Q. How long will these stations remain on

9 site from start to finish, do you anticipate?

10 A. I don't know. I do not know the answer to

11 that question.

12 Q. When were they installed?

13 A. Prior to our measurements, which means

14 they were installed, I believe, in October.

15 Q. Will you remove your equipment when your

16 measurements are complete?

17 A. Our equipment, yes.

18 Q. So I guess my question was not clear.

19 Is Hydrologic Associates going to go back, to

20 your understanding, and remove those structures

21 after you remove your equipment?

22 A. That is my understanding, but I'm really

23 not sure.

24 Q. Okay. When are you going to remove your

25 equipment, approximately?

1 A. Well, our equipment is removed each day.

2 We don't leave 30,000 in receivers out.

3 Q. Finally remove.

4 When do you anticipate you will no longer need

5 to go back and take further data measurements?

6 A. When we're told we have covered the areas

7 that needed to be covered.

8 In other words, we have those inaccessible

9 points. When we finish the measurements this week

10 if we weren't going to go back to those areas, we

11 would not have a reason to go back.

12 Q. In your estimation the datum collection

13 will be done?

14 A. But we have the other areas that will be

15 needed.

16 Q. Is Mr. Larsen relying on you on the call

17 for when you have enough data?

18 A. Oh, yes. But the access considerations --

19 one of the concerns is I said, look, I don't want to

20 get -- I do not want us involved. You must

21 coordinate access for these areas and get us to the

22 areas. We will take care of the measurements. We

23 will certify the measurements, but you will

24 coordinate that. But they must figure out how near

25 to get us to these areas and then we'll take the

1 measurements.

2 That's why I don't want to say we're done this

3 Friday. If we're done Friday with the areas we've

4 been able to get into, those stations will have good

5 control on them that would be useful to other

6 people. Now, it's a question of whether we're

7 wanted to be out --

8 Q. Okay. In the station locations that were

9 designed that were established, were you given any

10 documentation to show where they were or positioned?

11 A. Yes, I was given longitude and latitude

12 for when they finally did build them and then we

13 went out and inspected them. I checked them for how

14 stable they were and if they would do what we

15 thought they would do.

16 And we stamped identifying numbers on each of

17 the tops and a centering point on top of the pipes

18 because one of the important things is -- one of our

19 procedures is to cap "rubbings." It sounds silly

20 but it pays benefits in the long run in terms of --

21 because of the large quantities of data you're

22 dealing with, but it enables you to say, yes, in

23 fact, here's physical evidence he was on station

24 number such and such.

25 Q. In your conversations with Mr. Larsen and

1 with people from Hydrologic Associates, was there

2 any correspondence back and forth or was this done

3 in person?

4 A. We had correspondence as faxes and such.

5 Q. And was the subject of those the technical

6 aspects of how this should be done and what needed

7 to be done? What was the name of that

8 correspondence?

9 A. Yeah. Generally back and forth some

10 things of Paul Larsen telling us: I need to have

11 certain of these stations. These, I would like you

12 to tie these into your network not as control but to

13 place values on them from the control we're using.

14 He said: Well, I'd like staff gauges in these

15 areas and then since we had told them, well, we

16 suggest a three-mile grid in here. So then he gave

17 a graphic representation of, well, this is roughly

18 what I'm suggesting is a three-mile grid.

19 Is this okay. Well, that's fine but then we

20 have this situation and it was abort type of

21 suggestions, advice and, you know, ultimately the

22 issue is on the integrity of the network, the

23 control of that we use is all our call.

24 It is fairly common a client tells us what --

25 I want you to do measurements for me and this is

1 where I want the measurements from and, okay, we are

2 going to do them here; he can't do them here and

3 things like that.

4 Q. Okay. Let's take a look at Exhibit 1

5 which has been previously marked, which is Notice of

6 Taking Deposition Duces Tecum.

7 I'd just like you to take a look through to

8 see if you know what it is.

9 A. I haven't seen this before, if that's the

10 question.

11 Q. Well, that will be sort of the question

12 but -- okay. Well, you said you haven't seen it

13 before. If I could invite your attention down to

14 Page 5 at the bottom, Documents to be Produced.

15 Looking at the paragraph numbered one there

16 under: All documents related to your studies of the

17 topography of the EPA, water levels in the EPA and

18 the EAA, hydroperiod of those and inundation.

19 Do you have any documents related to your

20 studies thus far?

21 MR. GAINES: Let me just put on the

22 record here: Mr. Fitzgerald and I had a discussion,

23 I think, yesterday about the status of the documents

24 here.

25 Given the fact that Mr. Jennings has

1 not yet reached his final opinion, any preliminary

2 documents that he has or at this point work product

3 and we have not produced and will not produce those

4 documents until such time as it's in conjunction

5 with his final opinion which would be the survey.

6 The only exception to that concerns

7 Request Number 4, where in preparing for the

8 deposition it came up that there was this work

9 previously done with regard to the Miccosukee Indian

10 Reservation and that may be responsive to Request

11 Number 4.

12 Mr. Jennings is going to check and

13 see if he's got some documentation on that work and

14 if so, we'll produce that.

15 MR. FITZGERALD: Well, Counsel, since

16 we're making speeches for the record, there is

17 nothing in the Florida Rules of Civil -- Florida

18 Administrative Hearings rulings entered by a

19 hearings officer in this case to allow counsel to

20 unlawfully hold documents -- notice without filing

21 for a protective order on a claim of nonfinal

22 opinions.

23 Secondly, most of the documents

24 requested in this notice are not documents relied

25 upon by the expert in forming his final documents

1 and conclusions. I would certainly understand the

2 preliminary nature of some of the perhaps data

3 analysis, which would have it done or would not be

4 available at this time; but as you, yourself, point

5 out, Paragraph Number 4 is certainly nothing that

6 could not be met by this witness and the witness

7 has, in fact, testified that he has such documents

8 and we'll get to Number 4 in more detail.

9 I am more concerned that the witness

10 has testified that no one has gone through this with

11 him as to the obligation of counsel under the

12 hearings officer's --

13 MR. GAINES: He didn't testify to

14 that. He said he hasn't seen the deposition notice.

15 But just to make it clear, these documents are

16 related to Mr. Jennings' studies, analysis, review

17 and reliance. These one, two and three, all of that

18 is not final at this time and, therefore, under

19 Florida Law, that is work product and not

20 producible.

21 This is a product of scheduling an

22 expert's deposition before he has a final opinion.

23 Counsel is well aware at the outset that there was

24 going to be no final opinion today or prior to

25 December 15th. That's now been pushed back to

1 January.

2 So you can do what you want with this

3 deposition, but it's premature as far as his opinion

4 and supporting documents.

5 MR. FITZGERALD: Well, we disagree

6 with counsel's opinion on the premature nature and

7 certainly allow the hearings officer to resolve

8 that.

9 BY MR. FITZGERALD:

10 Q. Mr. Jennings, prior to commencing this

11 work, did you review any documents, studies or data

12 to assist you in preparing to conduct this study in

13 the EAA -- I'm sorry, the EPA.

14 A. I looked at what control stations were

15 available in the area, vertical and horizontal.

16 Q. And what sources did you inquire --

17 A. National Geodetic Survey Data.

18 Q. And those are standard sources?

19 A. Public, yes.

20 Q. So they have no particularly protected or

21 confidential nature in your view?

22 A. They're public record.

23 Q. Okay. Prior to coming here today, did

24 anyone review with you the types of documents which

25 have been requested by the United States in

1 connection with your deposition?

2 A. No.

3 MR. GAINES: Wait a minute. Let me

4 object to you getting into attorney/client

5 conversations here or work product and what was

6 discussed between him and his attorneys, if that's

7 what you're asking.

8 MR. FITZGERALD: I did not ask him

9 the nature of the discussion. You have represented

10 on the record that while he may not have seen this,

11 you clearly suggested that someone may have gone

12 through it with him.

13 I'm entitled to explore that because

14 there are clearly documents in this demand that have

15 nothing to do with his final opinions or work

16 product.

17 BY MR. FITZGERALD:

18 Q. For example, next question is: Do you

19 have any contracts or documents or agreement

20 reflecting what work you are to conduct or -- and

21 what compensation your firm is to receive,

22 therefore, in connection with this case?

23 A. We have a contract with Peeples, Earl &

24 Blank.

25 Q. Which was executed when?

1 A. October.

2 Q. That contract would be responsive to

3 Paragraph 4 for work pending within the Everglades

4 Agricultural Area or the EPA for the period January

5 1, 1987 to date.

6 Have you had any other contracts or agreements

7 for work not related to this case for work in the

8 Everglades Agricultural Area or the EPA during the

9 past five years?

10 A. That Miccosukee project that we did, we

11 were under contract. Lakeland division was under

12 contract with our Tallahassee office who, I believe,

13 was under contract to someone else.

14 So I certified to our Tallahassee office

15 Florida Engineering Services a decision and as far

16 as the precision of the work --

17 Q. When was that work performed,

18 Mr. Jennings?

19 A. Nineteen -- 1990, I believe.

20 Q. And you have copies of that in your file?

21 A. I have a certified drawing of the control

22 work that we did.

23 Q. Do you have any documents or records

24 related to that work?

25 A. I'm not really sure. Okay. When you say

1 documents, what constitutes documents?

2 Q. Well, documents -- if I can invite your

3 attention to Page 4 is defined in Subparagraph A,

4 which you'll see means just about everything in the

5 western hemisphere.

6 It would include datum recorded, storage tape,

7 whatever. It would include interoffice

8 communications, maps, surveys, charts, blueprints,

9 engineering or architectural drawings or diagrams,

10 designs, memoranda, reports, telegrams, faxes?

11 A. I have a file folder for the job and I

12 have like our work, the scheduling sheets, when I

13 schedule the sessions for the personnel and that

14 sort of --

15 Q. And a copy of the contract, I presume?

16 A. Yes.

17 Q. And some indication that you were paid?

18 A. I imagine I've got that on file. In fact,

19 I'm sure I do.

20 Q. And when did anyone discuss with you

21 whether or not you had such materials for work

22 performed in the EPA over the last five years?

23 MR. GAINES: Let me just -- if you're

24 asking him to get into discussions, the substance of

25 discussions that were held with his attorneys or

1 with the attorneys representing the petitioner in

2 this case, I would instruct him not to answer.

3 So if you've had discussions with

4 someone other than the attorneys you can --

5 BY MR. FITZGERALD:

6 Q. Have you ever seen Exhibit 1 before?

7 A. This exhibit?

8 Q. Yes.

9 A. No.

10 Q. Inviting your attention to Page 5 and 6,

11 paragraphs numbered 1 through 4.

12 Have you had discussions with anyone about

13 those four types of documents or records prior to

14 today?

15 A. There was -- I think there was some

16 mention that the Miccosukee --

17 Q. When was that?

18 A. Well, I believe this was in a meeting with

19 counsel.

20 Q. I'm not asking for the substance of the

21 conversation. When was it?

22 A. Yesterday.

23 Q. Prior to yesterday had you had any

24 occasion to meet with counsel in preparation for

25 this deposition?

1 A. No.

2 Q. Did counsel review with you or discuss

3 with you in any way the -- with the exclusion of

4 Paragraph Number 3, whether you had documents

5 responsive to Paragraphs 1 and 2 on Page 5?

6 A. I never saw this or -- this was never

7 discussed.

8 Q. I understand that you didn't see the exact

9 wording, but if you can read those two paragraphs,

10 can you tell me if, in fact, you have ever sought to

11 determine if you had such documents or records?

12 MR. GAINES: Let me just make, I

13 guess, an objection to the form on this line of

14 questioning.

15 I thought I made it clear earlier.

16 We have determined that since Mr. Jennings' studies,

17 analysis, review and reliance in this matter has not

18 yet occurred, has not yet been completed, finalized,

19 that any documents within these categories, that 1,

20 2 and 3, are at this point work product and not

21 producible --

22 MR. FITZGERALD: Counsel --

23 MR. GAINES: -- under this document.

24 MR. FITZGERALD: Counsel, under your

25 theory if this witness had done work at any time in

1 his lifetime in the EPA or EAA, they would be thus

2 not producible.

3 Paragraph 1 does not call for

4 documents reviewed for the purpose of this case.

5 Paragraph 3 does that and I will freely concede that

6 certain documentation in efforts that are not final

7 would not be producible at this juncture, and we'll

8 certainly ask for those once you do have the file.

9 And, however, one would call for any

10 historical documents or anything he's done related

11 to studies that he may have done at any time, and I

12 don't know that you asked this witness or anybody

13 reviewed with the witness whether there is such

14 documentation or not, and I'm entitled to find out.

15 MR. GAINES: All right. Let me just

16 say this: My interpretation of this document

17 request was that it related to studies and analyses

18 related to this case.

19 And I would invite you to question

20 Mr. Jennings if there are other studies, analyses,

21 or review of the EPA or the EAA unrelated to this

22 for there to be documents existing with regard to --

23 We talked about the Miccosukee thing.

24 We just learned about that yesterday and there was

25 even some question if that was within the EPA.

1 Other than that, I think we're talking about

2 something that doesn't exist, but you can question

3 him from that.

4 MR. FITZGERALD: Well, the problem is

5 whether you think it exists or not. Mr. Jennings

6 has not clearly been apprised of this and given an

7 opportunity to tell counsel it exists, because you

8 only saw fit -- your firm, to discuss this with him

9 yesterday. You had an obligation under the covering

10 scheduling order in this case entered by the

11 Hearings Officer to produce whatever responsive

12 documents existed into the hands of the United

13 States one week ago and you have failed willfully.

14 I do intend to take this up with the hearing

15 officer.

16 MR. GAINES: I invite you to do that.

17 We do know for a fact that his studies, analyses in

18 regard to this matter were complete and, therefore,

19 there were no producible documents.

20 MR. FITZGERALD: Which I now know is

21 untrue because the Miccosukee is clearly producible.

22 MR. GAINES: Then I would invite you

23 to inject more precision into your document request;

24 but I didn't understand it to go beyond this case or

25 than before --

1 MR. FITZGERALD: Well, then in Number

2 4, you're certainly in violation and any

3 documentation that relates to a study that was done

4 on the Miccosukee Reservation north of -- which is

5 within the EAA, I'll represent falls within Number 1

6 as well.

7 MR. GAINES: Like I say, that's not

8 the way I read 1, 2 and 3. I will and I already

9 said we'll already gather the documents and you can

10 go into those at the continuation or the follow-up

11 deposition. That's the situation with regard to the

12 Miccosukee documents.

13 BY MR. FITZGERALD:

14 Q. Mr. Jennings, in your training have you

15 had cause to study specifically any of the issues

16 related to geographic mapping or the topography of

17 South Florida?

18 A. Could you repeat that?

19 Q. Broad question, uh?

20 Where did you receive your formal schooling

21 for your current position?

22 A. University of Florida.

23 Q. Okay. Did you take any courses that

24 specifically addressed the topography of Florida?

25 A. We took a geology for engineers course

1 that there's identifying -- you know, learning about

2 the strata and sediment layers and that sort of

3 thing.

4 A specific course in the topography of

5 Florida, I cannot think of a specific --

6 Q. In your professional career after

7 schooling, I assume that you attend seminars and

8 refresher courses with the various professional

9 organizations which you're affiliated?

10 A. Yes, I'm an instructor in the continuing

11 education program for the Florida Society of

12 Professional Land Surveyors.

13 Q. At any time during your career have you

14 attended any such training seminars or refresher

15 courses or continuing education related to the use

16 of G.P.S. as a topographic mapping device or system?

17 A. I have -- well, I've instructed some and I

18 have gone out to Trimble Navigation in Sunnyvale,

19 California.

20 Q. Have you written anything in the area of

21 G.P.S. -- you know, any publications, that sort of

22 thing?

23 A. Yes, I have presented technical papers at

24 the Annual Surveyors Convention. I presented a

25 paper on G.P.S. Surveryors of Florida: an overview

1 and progress report from the public and private

2 sector. It was jointly authored by myself, Terry

3 Wilkinson at the Department of Natural Resources,

4 and Ron Taylor at National Geodetic Survey.

5 I presented that at the National Convention of

6 American Congress of Surveying and Mapping in

7 Atlanta in October of 1991.

8 Q. Prior to being contacted with respect to

9 this case, have you conducted any personal study of

10 the topography of the Everglades Protection Area

11 north of the Everglades but south of Lake

12 Okeechobee?

13 A. A study?

14 Q. Yes.

15 A. I think maybe I need that clarified. That

16 was one of my comments before was that what I did on

17 the Miccosukee, there was not a -- it was purely

18 putting geodetic coordinators on control stations.

19 Q. I understand.

20 A. And aside from controlling I did not even

21 publish vertical values or anything like that. In

22 terms of studying the topography normally or studies

23 to my knowledge, no.

24 Q. Have you or your firm, to your knowledge,

25 done any work in the farming areas south of Lake

1 Okeechobee but north of the Everglades?

2 A. The Fort Lauderdale division I can't

3 answer. They've been around as long as I've been in

4 surveying and I could not speak for where they have

5 worked. They may have done work and I may not --

6 Q. Let's limit it to your branch then.

7 A. Our branch out of Lakeland and -- could

8 you repeat the question again?

9 Q. Have they done any work from Lake

10 Okeechobee to the south of that?

11 A. No. To my knowledge, no.

12 Q. As far as you know, the other branch

13 offices of your firm have not done any work?

14 A. I don't really know for sure.

15 Q. I understand within the limits of your

16 knowledge.

17 A. I do know that the Fort Lauderdale office

18 does work for the water management districts from

19 time to time. But I do not have personal knowledge

20 of the extent of that work.

21 Q. And you wouldn't have any of those records

22 in any event, would you?

23 A. No, absolutely not.

24 MR. FITZGERALD: It's probably good

25 to take a ten minute break.

1 (Thereupon a break was taken.)

2 BY MR. FITZGERALD:

3 Q. Mr. Jennings, in your general expertise

4 being surveying work, are you familiar with a

5 technique called floating elevations?

6 A. No, I'm not.

7 Q. Have you ever seen an instance where from

8 a known datum point, either a bench mark or

9 something of that nature, one could float the

10 elevation or basically by surveying techniques

11 determine at some distance away the elevation of a

12 point, like water surface or muck or if one used a

13 staff as you've described?

14 A. You mean just extrapolating?

15 Q. Someone used extrapolating in the same

16 context, I might add --

17 A. I'm familiar with that technique. I guess

18 the floating is something -- I wasn't familiar with

19 that term.

20 Q. Okay. How acceptable is that as a

21 technique for determining elevation of a surface?

22 MR. GAINES: Let me just object to

23 the form only to the extent of if you understand

24 what he's talking about as a technique. I mean, how

25 acceptable it is. If you've got enough information

1 to come in on that, go ahead.

2 THE WITNESS: Within a smaller area.

3 A large area there's potential for problems. Within

4 a localized area I think it's recognized a

5 reasonable technique.

6 BY MR. FITZGERALD:

7 Q. Physically? Or what would the technique

8 be? How would one do that?

9 A. Well, I think we're getting into the

10 hydrographic type of things. This is not a

11 technique I, myself, technically use. My expertise

12 is in G.P.S. and the integrity of the networks.

13 Q. Let me ask the question so you may -- not

14 without going to a water surface but how would you

15 conduct that extrapolation?

16 A. I would maintain at least two control

17 stations and then determining using leveling

18 procedures -- differential leveling procedures going

19 from a known geodetic bench mark to the position

20 that the bench mark would be determined and continue

21 on and then close on another bench mark.

22 And then if there was a disclosure between the

23 two bench marks would be to determine if the bench

24 marks were disturbed would probably take a third

25 bench mark because if the two disagree, which one's

1 right.

2 Also to check whether somewhere the error had

3 been made along the run through the procedures, I

4 would use, depending on the level you asked about,

5 different orders. For different orders requires

6 different techniques.

7 The highest order leveling I've been involved

8 with is a second level ordering, where we had to use

9 rods, where we had to use various geodetic survey

10 procedures, more conventional type leveling

11 procedures to take three wire readings. It's where

12 you have the center hair in the level, and you have

13 a top and bottom stadium hair.

14 You read the center hair, also read the top

15 and the bottom hair. You compare against the middle

16 reading and if the two degree, that's good.

17 Okay. You have three wires as you look

18 through the drum. You have a middle one that goes

19 all the way across. And then on the vertical wire,

20 you have a top hair -- top stadia cross-hair, a

21 bottom stadia cross-hair. Those enable you to

22 use -- it's a good surveying technique to read the

23 three, middle, top, and bottom, take an average of

24 the two, compare it to what you read directly on the

25 middle.

1 That's one check and then the interval between

2 the top hair and the bottom hair represents the

3 hundreds of feet that you're aware -- the distance

4 from you and your level sight, and what that enables

5 you to do is verify that your back sight distance is

6 equal to your foresight distance.

7 It is a procedure designed to take out

8 imperfections in the instrument in adjustment from

9 the manufacturer. Because if the instrument is

10 slightly out of level, if your sight is balanced

11 from here to here, it cancels out. It's just a very

12 standard, good survey procedure.

13 Q. Over what kind of distance would you feel

14 comfortable using a technique like that to determine

15 elevation?

16 A. Well, you're going to accumulate certain

17 amounts of systematic error; and rather than pull

18 the distance out of the hat, I would probably refer

19 to the National Geodetic Survey guidelines for what

20 they consider the errors and the procedures for

21 doing that.

22 Varying along the lines you're going to

23 accumulate, there's a formula for over a certain

24 number of kilometers of what is expected and

25 intolerable and the closer precision you're going to

1 have.

2 Q. Is it possible to use a water level in a

3 water body of known elevation and extrapolate from

4 an elevation in a control point somewhere along that

5 elevation to a specific point of interest and use

6 that as your reference to determine the elevation at

7 the point of interest?

8 A. In a localized area.

9 Q. By localized area, you would again refer

10 to NGS standards for error or for other factors?

11 A. Well, that's going to be more of a

12 judgment call, I think, on that. Over a large

13 distance I think that would obviously be a mistake.

14 There's a lot of things that can -- but now we're

15 getting into what's large and what is that.

16 Q. That was going to be my next question.

17 A. And I think, again, I would have to refer

18 that -- I would refer that to someone who had had

19 some hydrographic surveying because, again, my

20 expertise is the geodetic measurements utilizing the

21 G.P.S., and I'd like to refer that to, for example,

22 Jim, who's had more experience with the

23 hydrographic --

24 Q. On an order of magnitude kind of thing,

25 just to give me a sense, would four miles seem too

1 far? Would one mile seem reasonable within your

2 field?

3 A. I'd like to refer it to Jim because,

4 again, he's going to have the experience to base

5 that on that. My own intuitive sense is that

6 multiple miles would probably be --

7 Q. That would exceed what you would think of

8 in terms of local area?

9 A. But it's -- again, I'm not really the

10 appropriate one to -- myself, I like hard

11 measurements but --

12 MR. FITZGERALD: Thank you very much.

13 I assume your witness would like to read?

14 MR. GAINES: Yes.

15 MR. FITZGERALD: And we'll adjourn

16 the deposition at this point and we'll renotice you

17 after you have your final opinion; and you can rely

18 on the fact we will be seeking the same documents

19 and additional documents. Based on your testimony,

20 there may be some expansion.

21 Thank you very much.

22 (Thereupon the deposition concluded

23 at 11:43 a.m.)

1 CERTIFICATE

2 STATE OF FLORIDA )

3 ) SS

4 COUNTY OF DADE )

5 I, Lance W. Steinbeisser, a Notary

6 Public in and for the State of Florida at Large.

7 DO HEREBY CERTIFY that the foregoing

8 deposition was taken before me at the time and place

9 therein designated; that the deponent was by me duly

10 sworn; and the foregoing pages 1 through 72

11 inclusive, are a true and correct record of the

12 testimony given by the witness.

13 I FURTHER CERTIFY that I am not a

14 relative or employee of any of the parties, nor

15 relative or employee of such attorney or counsel, or

16 financially interested in the foregoing action.

17 WITNESS MY HAND AND SEAL this 11th

18 day of December, 1993, in the City of Miami, County

19 of Dade, State of Florida.

21 __________________________

Notary Public

22 State of Florida at Large

23 My Commission Expires: 11-28-94

24 Commission No. 067218