STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SUGAR CANE GROWERS COOPERATIVE )
OF FLORIDA, a Florida )
Agricultural Cooperative )
Marketing Association, ROTH )
FARMS, INC., AND WEDGWORTH )
FARMS, INC., )
)
and )
)
FLORIDA SUGAR CANE LEAGUE, INC.;)
UNITED STATES SUGAR CORPORATION;)
and NEW HOPE SOUTH, INC., ) CASE NOS. 92-3038
) 92-3039
and ) 92-3040
)
FLORIDA FRUIT AND VEGETABLE )
ASSOCIATION, LEWIS POPE FARMS, )
W.E. SCHLECHTER & SONS, INC., )
and HUNDLEY FARMS, INC., )
)
Petitioners, )
)
vs. )
)
SOUTH FLORIDA WATER MANAGEMENT )
DISTRICT, an Agency of the State)
of Florida, )
)
Respondent, )
)
and )
)
MICCOSUKEE TRIBE OF INDIANS OF )
FLORIDA, the UNITED STATES OF )
AMERICA, and FLORIDA DEPARTMENT )
OF ENVIRONMENTAL REGULATION, )
and the FLORIDA WILDLIFE )
FEDERATION, )
)
Intervenors. )
________________________________)
DEPOSITION OF ROBERT R. JOHNSON
DEPOSITION OF ROBERT R. JOHNSON
250 Australian Avenue South
Clearlake Center
Suite 1403
West Palm Beach, Florida
November 4, 1992
9:20 A.M.
A P P E A R A N C E S:
FOR PETITIONERS FLORIDA SUGAR CANE LEAGUE, INC.;
UNITED STATES SUGAR CORPORATION; and NEW HOPE
SOUTH, INC.:
PEEPLES, EARL & BLANK
BY: RICK J. BURGESS, ESQ.
One Biscayne Tower
Suite 3636
Two South Biscayne Boulevard
Miami, Florida 33131
(305) 358-3000
FOR RESPONDENT-INTERVENOR THE UNITED STATES OF
AMERICA:
UNITED STATES DEPARTMENT OF JUSTICE
VICKI O'MEARA,
ACTING ASSISTANT ATTORNEY GENERAL
AND
LINDA COLLINS HERTZ,
ACTING UNITED STATES ATTORNEY
BY: SUZAN HILL PONZOLI,
ASSISTANT UNITED STATES ATTORNEY
Southern District of Florida
155 South Miami Avenue
Suite 627
Miami, Florida 33130-1693
(305) 536-4425
A P P E A R A N C E S (continued):
FOR THE WITNESS:
GUNSTER, YOAKLEY & STEWART, P.A.
BY: DAVID P. ACKERMAN, ESQ.
Phillips Point
Suite 500 East
777 South Flagler Drive
P.O. Box 4587
West Palm Beach, Florida 33402-4587
(407) 650-0541
ALSO PRESENT:
RONALD D. JONES, PH.D.
1 The deposition of ROBERT R. JOHNSON, a witness of
2 lawful age, taken for the purpose of discovery and for
3 use as evidence in the above-styled cause, pending in the
4 Division of Administrative Hearings, State of Florida,
5 pursuant to Notice, before Pamela S. Wilson, Notary
6 Public in and for the State of Florida at Large, at the
7 time and place aforesaid.
8 * * * * * * *
9 I N D E X
10 WITNESS DIRECT
11 ROBERT R. JOHNSON
(By Ms. Ponzoli) 5
12
13
14 E X H I B I T S
15 JOHNSON EXHIBIT FOR IDENTIFICATION
1(1-7) Deposition Notice 7
16 2(1-4) Witness's CV 12
3(1-12) Table of Contents and Chapter 9
17 from August 1991 Annual Report 13
4(1-25) Table of Contents and Chapter 3
18 from October 1992 Annual Report 13
5(1-4) Letter and outline dated 6-22-92 14
19 6(1-14) Article 14
7(1-2) Field notes 16
20 8(1-15) Water quality data 17
9 Memorandum dated March 2, 1992 38
21 10 Memorandum dated January 6, 1992 38
11(1-3) Memorandum dated September 4, 1992 38
22 12 South Florida Water Management
District Map with notations thereon 59
23 13 Hard-copy reproduction of
transparency depicting gradient
24 study 97
14 Diagram depicting typical site
25 layout 106
15 Plumbing diagram 108
1 Whereupon:
2 ROBERT R. JOHNSON,
3 was called as a witness by the Respondent-Intervenor and,
4 having been first duly sworn, was examined and testified
5 as follows:
6 DIRECT EXAMINATION
7 BY MS. PONZOLI:
8 Q Would you state your name for the record,
9 please.
10 A Robert R. Johnson.
11 Q And your address, please, Mr. Johnson.
12 A xxxxxxxxxxx
13 Q Mr. Johnson, I am Suzan Hill Ponzoli, and I
14 represent the United States in the SWIM challenge
15 proceedings, and I'll be asking you a number of questions
16 about the work which you've done in conjunction with Duke
17 Wetland Center and Dr. Richardson. If you don't
18 understand a question, I would ask you to please, you
19 know, help me, and I'll try to frame a better question
20 for you if you --
21 A Uh-huh.
22 Q -- you will do that for me.
23 Have you had your deposition taken before,
24 Mr. Johnson?
25 A No.
5ÿ
1 Q Have you been prepared for this deposition?
2 A It has been discussed on the general kinds
3 of things that we would be asked about in that aspect
4 with Dr. Richardson, yes.
5 Q You have discussed this with Dr. Richardson?
6 A Well, he's told me the layout, what there
7 is, no problems.
8 Q Okay. You're represented here today by
9 Mr. David Ackerman. I would like to know in what
10 capacity Mr. Ackerman represents you.
11 MR. ACKERMAN: I represent Mr. Johnson individually
12 here today.
13 MS. PONZOLI: So it's my understanding that
14 Mr. Johnson has individually retained you to
15 represent him at this deposition?
16 MR. ACKERMAN: That's not what I said. I said I
17 represent him individually here today.
18 MS. PONZOLI: I guess it is of some interest to the
19 United States who retained you to represent him.
20 MR. ACKERMAN: And that's none of your business.
21 MS. PONZOLI: You don't care to answer that,
22 Mr. Ackerman?
23 MR. ACKERMAN: No. I will say that I've been --
24 not been retained by any party to this litigation.
25 MS. PONZOLI: Are you willing to indicate whether
6ÿ
1 the Environmental Protection District retained you?
2 MR. ACKERMAN: I am, and they have not.
3 MS. PONZOLI: Okay.
4 Q Mr. Johnson, you are here pursuant to a
5 Subpoena Duces Tecum to produce certain documents --
6 A Uh-huh.
7 Q -- are you not?
8 A Yes.
9 Q I would like to go through that request for
10 documents and see which documents you're producing in
11 response to it. Do you have a copy of it with you?
12 A I do not --
13 Q I can give you one.
14 A -- have a copy.
15 MS. PONZOLI: All right. Will you mark this for
16 identification, please.
17 (Johnson Exhibit 1(1-7) was marked
18 for identification by the reporter and is
19 included herewith.)
20 (Discussion off the record.)
21 MS. PONZOLI: We've agreed off the record that the
22 exhibits in this deposition will be referred to as
23 Johnson 1, et cetera. The court reporter, however,
24 to save time, can simply put the initials BJ-1,
25 BJ-2, et cetera.
7ÿ
1 MR. ACKERMAN: Suzan, while we're talking about the
2 subpoena, in relation to an earlier question, I'll
3 be happy to file a Notice of Appearance in the case
4 to show who I represent. The reason I don't --
5 frankly, I don't -- I'm not real clear whether we
6 represent Duke University, Duke Wetland Center, or
7 just the witness, and I'll enter an appearance
8 clarifying that. That will help.
9 While we are on the topic of the subpoena,
10 as I discussed with you earlier, the witness is
11 prepared to discuss with you the documents he has
12 brought in compliance with the subpoena. He is not
13 going to produce two documents. One is a one-page
14 piece of paper, and the other is a two-page piece
15 of paper, which he is prepared to describe for you
16 generically, in accordance with the instructions
17 set forth on this subpoena so that you may decide
18 whether or not to file an appropriate motion
19 concerning those documents.
20 But I did want to let you know up front that
21 those documents are not going to be produced and
22 that I'm instructing the witness that, if any
23 question that you pose calls for him, in order to
24 answer the question completely, to divulge
25 information shown on those documents, I'm
8ÿ
1 instructing him to not divulge that information, to
2 tell you that the question calls for him to do so,
3 and I'm instructing him not to answer the question.
4 MS. PONZOLI: I think that it is, I guess, very
5 problematic, and I guess we'll have to deal with as
6 we come to it because for my part, I understand
7 Mr. Johnson -- and we'll get into this as we go
8 through his background -- to be working on behalf
9 of a public entity, and all his documents, my
10 understanding would be, would be public records.
11 I guess we can just see when we come to the
12 particular area that he's not responding to my
13 subpoena, or the United States subpoena, to be more
14 specific. I believe that your instruction to him
15 not to answer is overbroad, and perhaps you didn't
16 intend for it to be that way, but it allows
17 Mr. Johnson to withhold information from my
18 questioning without necessarily indicating to me
19 that he is, in fact, withholding information.
20 So I think it would be a fair and more
21 appropriate response to those questions that he
22 indicate that there is more information that he
23 would give me, but pursuant to your instructions,
24 he is withholding that additional information.
25 MR. ACKERMAN: The intention of my instruction
9ÿ
1 was to instruct the witness to tell you, when you
2 have asked a question that calls upon him to
3 divulge trade secret information, to provide you
4 with any information he can without divulging the
5 trade secret information and to tell you that he
6 is not -- cannot fully answer the question
7 because he cannot divulge the trade secret
8 information.
9 The one thing I forgot to mention is that
10 the privilege that we are invoking is the trade
11 secret privilege under Section 90.506 of the
12 Florida Evidence Code. It is possible that I may
13 have missed a privilege, having been very
14 recently retained. If that happens, if I
15 determine that there is another applicable
16 privilege and if we get to the point where you're
17 filing a motion and we're briefing this issue,
18 I'll be happy to let you know any authorities on
19 which we would rely.
20 MS. PONZOLI: I think you're limited to those
21 privileges that you assert. I guess I would
22 object strenuously to your ability to assert
23 additional privileges that might occur to
24 whichever entity you represent, which is totally
25 unclear to the United States at this time. So I
10ÿ
1 think we object completely to the withholding of
2 information pursuant to the subpoena and,
3 further, to the sort of withholding privileges if
4 they seem to occur to whomever downstream.
5 Maybe it would be just cleaner if we
6 proceed to go through the documents and get to
7 the heart of this matter and get our other
8 business done. I would like to say, is it
9 acceptable to you two counsel that all objections
10 would be preserved except as to the form of the
11 question?
12 MR. BURGESS: Yes.
13 MS. PONZOLI: Is that an acceptable format for you?
14 MR. ACKERMAN: That's my understanding of the
15 rules.
16 MS. PONZOLI: Okay. Good.
17 Q Johnson No. 1, Mr. Johnson, is the Notice
18 Duces Tecum for your deposition, and it describes the
19 type of documents that are to be produced. Prior to your
20 appearance here today, Mr. Johnson, was anything filed on
21 your behalf to withhold any documents from production
22 today?
23 A I am not sure what you mean by "filed."
24 Filed with whom?
25 Q Filed in this particular proceeding, the
11ÿ
1 SWIM challenge cases Nos. 92-3038, 92-3039, and 92-3040
2 in the Division of Administrative Hearings in the State
3 of Florida.
4 A Please understand I'm not a lawyer. So when
5 you say "filed," I'm not sure what you mean by the word
6 "filed." I have not -- I have discussed the materials
7 that we have and so on with my employers.
8 MR. ACKERMAN: Will it help if I say that we have
9 not filed a motion for protective order or any
10 papers in the case?
11 MS. PONZOLI: Okay. I think it's clear that the
12 United States will argue that you've waived those
13 objections.
14 Q Documents to be produced, No. 1, a copy of
15 your current CV or similar document.
16 Would you mark this for identification,
17 please. Johnson No. 2 will be Mr. Johnson's CV.
18 (Johnson Exhibit 2(1-4) was marked
19 for identification by the reporter and is
20 included herewith.)
21 Q BY MS. PONZOLI: No. 2 on the request, "A
22 list of all technical, professional, or scientific
23 publications, reports, articles, monographs, thesis, or
24 similar documents in which you are identified as author
25 or co-author related to Everglades research."
12ÿ
1 A That would be both of these.
2 MS. PONZOLI: Will you mark these for
3 identification Johnson 3 and 4. Johnson 3 will
4 be the 1991, and Johnson 4 will be the 1992.
5 (Johnson Exhibits 3(1-12) and 4(1-25) were
6 marked for identification by the reporter and are
7 included herewith.)
8 MR. ACKERMAN: Those are the annual reports?
9 MS. PONZOLI: Yes, sir. These are the annual
10 reports with, I assume, Mr. Johnson's
11 contributions attached to them.
12 Q Is that correct, Mr. Johnson?
13 A That is my contributions, yes.
14 Q And am I correct in assuming that you have
15 authored no other --
16 A Papers concerning the Everglades.
17 Q Yes, sir. Good. Thank you.
18 No. 3 is actually the copy. What you did
19 was you combined 2 and 3 and simply produced the
20 documents to me.
21 A Right.
22 Q Am I accurate in assuming that? All right.
23 Thank you very much.
24 A There are --
25 Q Are there -- No. 3 is a little different
13ÿ
1 because it asks for including drafts, edited copies,
2 reviewers' comments, and the final version.
3 A The top one is an outline concept for this
4 year's publication, and the bottom one was my final
5 draft submitted to Curt Richardson for publication.
6 MS. PONZOLI: Would you mark this for
7 identification. Johnson No. 5 will be his
8 outline for this year's publication, and
9 Johnson 6 will be the final draft which was
10 submitted to Dr. Richardson.
11 (Johnson Exhibits 5(1-4) and 6(1-14) were
12 marked for identification by the reporter and are
13 included herewith.)
14 (Discussion off the record.)
15 Q BY MS. PONZOLI: Just so I'm clear,
16 Mr. Johnson, is Johnson No. 6 the same as one of the
17 documents?
18 A Yes. It's the same as this year's annual
19 report.
20 Q As Johnson No. 4. Okay. Thank you.
21 A Uh-huh.
22 Q Are there any reviewers' comments on those
23 articles?
24 A No.
25 Q Were there any reviews of those articles?
14ÿ
1 A Only on campus, I'm assuming, by
2 Dr. Richardson, but he did not send those back to me. He
3 pretty much took them verbatim and added whatever he
4 wanted to.
5 Q Ones that you have given to me -- I think
6 it's 4 and 6, Johnson 4 and Johnson 6 -- are they the way
7 you submitted them to him --
8 A Correct.
9 Q -- or are they in the final form as
10 Dr. Richardson would have?
11 A No. They're the way I submitted them to
12 him.
13 Q And I'm correct in assuming that you
14 retained personally no drafts?
15 A You've got my drafts. Those are -- those
16 are my drafts. I mean, I work on a computer.
17 Q You just change it as you go and --
18 A I changed --
19 Q And it's changed --
20 A It's changed. So you've got my draft. My
21 draft one is my draft.
22 Q All right. Request No. 4 is, "All documents
23 relating to research done in conjunction with or under
24 the direction of Dr. C. J. Richardson and/or the Duke
25 Wetland Center."
15ÿ
1 A I'm not sure how that one -- relating to
2 research done, there are none. I mean, I'm the manager
3 of the lab. Okay? I don't have anything in that aspect.
4 The only thing you could come closest to is some
5 handwritten notes such as this on hydrology plots that
6 are not even my notes. They're Dr. Richardson's notes --
7 Q Okay.
8 A -- that we cooperated together to figure out
9 how we're going to do this.
10 Q Are these a composite exhibit, or would
11 these be a separate exhibit?
12 A No. That's -- no. They would be composite.
13 MS. PONZOLI: Let's mark these as Johnson No. 7.
14 (Johnson Exhibit 7(1-2) was marked
15 for identification by the reporter and is
16 included herewith.)
17 Q BY MS. PONZOLI: Just so I'm clear,
18 Mr. Johnson, composite Exhibit No. 7, consisting of two
19 pages of notes and drawings -- these were done by whom?
20 A Dr. Richardson.
21 Q These were both Dr. Richardson's?
22 A He wrote them down. We sat down together
23 and figured out what we were doing, and he sketched out
24 all the aspects concerning one of the experiments.
25 Q Do you have any data that would fit within
16ÿ
1 No. 4 --
2 A Yes.
3 Q -- Mr. Johnson?
4 A I've got this form here (indicating), which
5 consists of water quality data. Let me see. This data
6 is -- this system just fired off of late, and it's really
7 the run-in, and it's not even -- some of it's even off
8 and inaccurate because we were trying to balance out the
9 systems. So this material is -- it's the run-in period,
10 doesn't mean a whole lot.
11 Q Are you telling me this is hot off the
12 press?
13 A It's hot off the press.
14 MS. PONZOLI: All right. We will call this
15 composite Exhibit No. 8, consisting of 15 pages,
16 essentially, of data.
17 (Johnson Exhibit 8(1-15) was marked
18 for identification by the reporter and is
19 included herewith.)
20 Q BY MS. PONZOLI: Are there other documents
21 in response to No. 4 --
22 A No.
23 Q -- Mr. Johnson?
24 And I assume that we have not come to the,
25 quote, trade secret, end of quote, request. Is that
17ÿ
1 accurate?
2 A Yes, you have.
3 Q I have? Is it under No. 4?
4 A No. It's under No. 3.
5 Q Oh, it was under No. 3?
6 A 3 and 2 combined.
7 Q Oh, all right. Then we need to -- I'm
8 sorry. I didn't make that clear that I wanted to cover
9 that when I got to it. All right. Under both 2 and 3,
10 we come to these three pages, two documents, which there
11 seems to be some problem in producing to me.
12 Are they a technical, professional, or
13 scientific publication?
14 A It's a portion of.
15 Q A portion of a --
16 A Of the annual report.
17 Q Of the annual report?
18 A That I just submitted. It was not complete
19 as yet.
20 Q When did you submit this?
21 A A month ago to Dr. Richardson.
22 Q You retain a copy of it in your possession;
23 right?
24 A I don't have one here.
25 Q You don't have one here, but you do have
18ÿ
1 one?
2 A Right.
3 Q Is it two separate portions of the annual
4 report?
5 A No, no. It's a portion of the report. It
6 is not data related in any way, shape, or form.
7 Q Is it done as a part of the research project
8 funded by the Environmental Protection District?
9 A Yes.
10 Q If it's not data related, does it contain
11 conclusions or observations?
12 A No.
13 Q Is it all on a single topic?
14 A Yes.
15 Q Is it a topic on which you have written
16 previously?
17 A No.
18 Q It's a new topic, in other words?
19 A Yeah. Well, it's part of the report. I
20 mean, I haven't written -- there's been nothing coming
21 out on it previously per se.
22 Q Do you have an idea of when this document
23 will be made available publicly?
24 A I'm in the process of preparing -- I mean,
25 it's been more a case of getting the annual report
19ÿ
1 finished. That's been our major thrust. My next step is
2 to prepare a scientific methods paper, and it will be
3 part of that. I am not sure yet, seeing as how we're
4 working so heavily on the experiment, how fast that's
5 going to come out.
6 Q I understood you to say that this was part
7 of -- a portion of the annual report. Is that the
8 1992 report?
9 A (Witness indicates by nodding head up and
10 down.)
11 Q So there will be a separate document that
12 explains scientific methods that accompanies the
13 1992 report?
14 A Eventually. Everything that's in the
15 1992 report explains everything in the detail necessary
16 in any way, shape, or form. There's no problem with
17 that. This is more a case of possible patentable aspects
18 that, at this point in time, I just prefer not to
19 release.
20 Q It's a patentable aspect --
21 A Possibly.
22 Q -- of your scientific method?
23 A Yes.
24 Q Is that your conclusion?
25 A That's my conclusion.
20ÿ
1 Q And this reflects your work, Mr. Johnson?
2 A Yes.
3 Q Done under the funding, though --
4 A Uh-huh.
5 Q -- of the Environmental Protection District.
6 Did you have an agreement with the EPD, when
7 you first began to do this work, or with Duke Wetland
8 Center that this type of methodology might belong to you
9 exclusively?
10 A No.
11 Q So your contract doesn't reflect a right to
12 retain this type of --
13 A No.
14 Q -- of methodology as a --
15 A (Witness indicates by shaking head from side
16 to side.)
17 Q What is it? Is it methodology associated
18 with the dosing study?
19 A Yes, it is.
20 Q And all three pages are pertaining to
21 methodology associated with the dosing study?
22 A (Witness indicates by nodding head up and
23 down.)
24 Q Are you allowed to tell me what aspect of
25 the dosing study it pertains to?
21ÿ
1 A Sure. I don't see any problem with that.
2 Q Okay.
3 A It's the electronics design.
4 Q What part of the electronics design?
5 A All of it.
6 Q The whole --
7 A The schematic and the parts involved.
8 Q Is this a solar-powered system?
9 A Yes, it is.
10 MR. BURGESS: No. We're running wires out there,
11 Suzan.
12 MS. PONZOLI: All right. Be nice.
13 THE WITNESS: A 90-mile extension cord.
14 Q BY MS. PONZOLI: Let me ask you,
15 Mr. Johnson, when did you make the decision that you
16 wanted to apply for a patent?
17 A I have not made a decision to apply for a
18 patent yet.
19 Q When did you make the decision that you
20 didn't want to publicly reveal this part of your design?
21 I assume it is your design.
22 A Six to seven months ago.
23 Q Did you discuss this with Dr. Richardson?
24 A Yes, I did.
25 Q And what was the substance of that
22ÿ
1 discussion?
2 A Basically that he agreed at this point in
3 time.
4 Q That this might be something you could
5 retain as a private --
6 A No. Not so much that I would retain as a
7 private but more a case of -- I did not want to publish
8 all of the details on it as yet. I had been informed
9 that the South Florida Water Management District was
10 planning a program almost identical, not just similar, to
11 mine.
12 And after having put a year and a half of
13 work into something, design and building, I didn't feel
14 that it would be right to turn around and hand it to
15 someone that they could then go out and do the same thing
16 in a very short period of time. It took a lot of work to
17 come up with the design on this thing.
18 Q This is your unique creation --
19 A Yes.
20 Q -- is what I think you're trying to tell me.
21 A Based on the criteria given to me by the
22 scientists of what they wanted the system to do, I
23 designed the equipment to do so.
24 Q Has anyone told you how long it would take
25 to protect your interest in that if you were to make it
23ÿ
1 available to the South Florida Water Management District,
2 if they were to wish to duplicate the electronics
3 design --
4 A No.
5 Q -- in some dosing study of their own?
6 A No one has told me that, no.
7 Q Have you explored that conversation with
8 anybody?
9 A No. I know what I've put into it.
10 Therefore, I can tell from what the South Florida Water
11 Management District's capabilities are and monetary
12 funding is and what their ability is to do
13 engineeringwise how long it would take them to do the
14 same thing, and it's a -- plant research takes time.
15 It's not something that you pore liquid in a bottle, and
16 it turns a color, and you get a result.
17 It may be a period of time before we see the
18 results of this experiment, and I don't, basically, want
19 it to be scooped. If they want to do the experiment,
20 that's fine. Let them do their own experiment.
21 Q I'm confused now. It seems like you're
22 talking about experiments having some proprietary right
23 versus an electronic design --
24 A No.
25 Q -- having a proprietary right.
24ÿ
1 A No. The design enables the experiment to
2 operate.
3 Q Right.
4 A If I give the information to the South
5 Florida Water Management District --
6 Q Right.
7 A -- or anyone, they could take and take what
8 has taken me a year and a half to put together.
9 Q Right.
10 A And do it in a very short order.
11 Q Sure.
12 A And for that reason, I'm not willing to
13 release, at this point in time, the schematic showing how
14 the design works in fine detail.
15 Q Is this because you believe that they should
16 have to pay you for this schematic design?
17 A No, no.
18 Q Okay. Why is it?
19 A We have had occurrences in the past where
20 people have spent many hours, even to the point of years,
21 doing experiments to where almost verbatim our research
22 proposal was copied, submitted, and done as a very small
23 portion and submitted to a scientific journal that
24 nullified all of the work we had done.
25 If somebody goes out and takes two years to
25ÿ
1 create, lay out, take data and analyze the data, and then
2 write it all up and submit it to a journal, and somebody
3 two-thirds of the way into that two-year period goes out
4 and takes a very small piece of it and does the same
5 thing and then submits that quickly to a journal, that
6 journal will not take the long paper. They won't accept
7 it. It's already been done.
8 Now, I won't, because I was informed through
9 Dr. Richardson -- by Dr. Richardson that the South
10 Florida Water Management District was interested in doing
11 a dosing study, I'm not interested in providing them all
12 of my work and all of my designs, considering I have not
13 even lit this one off yet. It starts up this week,
14 hopefully, or next, and I'm not interested in providing
15 them all of my work for them to take ten times the
16 X resources and go out and try and scoop the same thing.
17 Q Does Dr. Richardson share this philosophy?
18 A At this point in time, yeah. I mean, it
19 will be published. It will be produced. It's just that
20 we need to make sure that everything is absolutely right.
21 As I said, we have not even lit this thing off yet.
22 It's --
23 Q Because of Hurricane Andrew --
24 A Yeah. Hurricane Andrew --
25 Q -- you had to restart?
26ÿ
1 A Yeah. We had to -- we started up, and two
2 weeks after we turned the switches on, Hurricane Andrew
3 blew all my solar panels out. I had to go back out and
4 rebuild and start rebuilding all over again. I mean, we
5 just finally got it to the point where this week or next,
6 hopefully, we can light it off.
7 Q I think my original question -- and maybe
8 you answered it, but I'm sorry. I don't recall -- was
9 when you thought this would be available publicly.
10 A At this point in time, I haven't even sat
11 down to start working out exactly the details on a
12 manuscript for a scientific publication. Dr. Richardson
13 and I have to still discuss who we're going to submit to
14 and what format we're going to use. That has not been a
15 priority at this point.
16 Q How long is it designed to run, Mr. Johnson?
17 A I have set it up supposedly to run for
18 approximately two to three years with no problems,
19 hopefully.
20 Q When would you assume that you might have a
21 goal of publishing --
22 A Oh.
23 Q -- the first paper?
24 A Before the -- long before the end of that
25 period, but I just -- I can't pick a number for you.
27ÿ
1 Whether it's six months or a year I don't know. There
2 may be changes that have to be made that, when it's brand
3 new and running, you don't know.
4 Q Have there already been changes in the
5 design over time?
6 A Sure.
7 Q Has it gone through -- by "major design
8 changes," one or two?
9 A Concept changes from the beginning, yeah.
10 Q How many can you recall? I'll do this with
11 you in detail later.
12 A One major revision.
13 Q One major. Okay.
14 MR. ACKERMAN: Were you talking about the
15 experiment or the electronics?
16 MS. PONZOLI: I'm talking about the experiment.
17 Q Did you think I meant --
18 A No. I thought you meant --
19 Q -- the electronics?
20 A -- the experiment.
21 Q The electronics, I would assume, have been
22 modified to meet the goal --
23 A Consistently --
24 Q -- of the experiment?
25 A -- all the way around, right.
28ÿ
1 Q Have they been the same? Have the
2 electronics essentially been the same?
3 A No. They've gone through the changes, the
4 same modifications.
5 Q So they're modified --
6 A Sure.
7 Q -- to meet the needs of the --
8 A Right. Exactly.
9 Q -- changes in the experimental design.
10 A Right.
11 Q Who, other than Dr. Richardson, participated
12 in the design of the dosing study?
13 A In the design of the study would be
14 Dr. Jerry Qualls, Dr. Russell Rader, Dr. Craft. That
15 would be it. As a team, we'd get together and go over
16 the same aspects and come up with criteria necessarily.
17 Q Have Dr. Davis or Mr. Larson ever attended
18 any of your planning sessions?
19 A No.
20 Q Have any attorneys ever attended any of your
21 planning sessions?
22 A No.
23 Q Just so that I'm completely clear, your
24 concern is not the proprietary concern in the
25 electronics. It is that someone would publish ahead of
29ÿ
1 you and your team of researchers on the dosing study. Is
2 that the problem?
3 A I don't want them to build --
4 Q Right.
5 A -- and thereby be able to publish.
6 Q Right.
7 A I'm not doing the scientific research.
8 Q Right.
9 A I don't write up the data.
10 Q Right.
11 A That's not my area.
12 Q Right.
13 A So I don't want somebody coming along and
14 building an identical system -- or they could improve on
15 the system. Anybody could. I don't think there's
16 anything built that can't be improved. But I don't want
17 that done in very short order with the resources of an
18 agency that has already indicated they're going to be
19 doing a dosing study -- after I've put a year and a half
20 into something, to have them basically scoop the whole
21 thing and have it all out.
22 I'm interested in getting the data out and
23 getting the information out and trying to find out what
24 we can do to solve the problems and answer the questions
25 our experiments are trying to do.
30ÿ
1 MS. PONZOLI: I guess that's all I have on that
2 now. I will indicate to you, Mr. Ackerman, I
3 don't think that -- while I can sympathize
4 certainly with Mr. Johnson's feelings, I don't
5 think it's appropriate. So I want you to
6 understand that we will seek to compel this
7 information.
8 We believe that it's public information,
9 and as sympathetic as we may be, our scientists
10 have suffered the same type of having to turn
11 over where they were in their work with the same
12 type of, you know, biting hardship that comes
13 with revealing to the scientific community what
14 you're in the process of working on. I want to
15 be real clear about that. We don't think this is
16 appropriate.
17 MR. ACKERMAN: I understand your position. I am
18 not prepared at this time --
19 MS. PONZOLI: I understand.
20 MR. ACKERMAN: -- to intelligently argue it with
21 you, but at some time I will.
22 MS. PONZOLI: Okay.
23 MR. ACKERMAN: If you want to call me or write me
24 before you file the motion, at that time I will
25 be better able to discuss with you the applicable
31ÿ
1 authorities and would be happy to do that.
2 MS. PONZOLI: Okay.
3 Q Is there anything else in regard to that,
4 Mr. Johnson --
5 A No.
6 Q -- that I've somehow failed to elicit in
7 this rather lengthy set of questions?
8 A Not that I can think of.
9 Q Please don't think that we are not
10 sympathetic to that aspect of it. I've really had some
11 heart-rending sessions with federal scientists over the
12 same issue. So I can sympathize.
13 So with the exception of those -- were these
14 done at different times? You said there was one page and
15 then two pages.
16 A No.
17 Q Were they done at different times?
18 A No.
19 Q They were done at the same time. Is one a
20 schematic and one a written explanation?
21 A No. The written explanation is provided in
22 the written report. It is a schematic and a parts list.
23 Q Oh, okay. So we've covered 1, 2, 3, and
24 have you produced everything under No. 4, all the
25 documents relating to research?
32ÿ
1 A Uh-huh.
2 Q We've done all of that? All right. Then
3 No. 5?
4 A I don't have a thing.
5 Q These get a little bit duplicative.
6 A Yeah.
7 Q From this point on it's like how many
8 different ways could I ask you for everything you've done
9 on the Everglades. So I can understand that at some
10 point, you've produced everything you have. All right.
11 All documents relating to research in the
12 EPA. You have nothing additional --
13 A No.
14 Q -- to what you've already given me?
15 A No.
16 Q Do you retain copies of the quarterly
17 reports at the lab?
18 A I have -- I don't retain them because up
19 until --
20 Q Right.
21 A Where is it? I have not provided any
22 information on the quarterly reports as an author.
23 Q Okay.
24 A The different people who were involved
25 retained them. So up until -- this next round I will be
33ÿ
1 an author.
2 Q Right.
3 A But at the present, I have not been an
4 author for the quarterly reports.
5 Q But do you have those in your possession?
6 A No, I do not.
7 Q So the lab you were speaking of does not
8 have copies of that?
9 A No. We don't have copies.
10 Q And you don't keep a library there or
11 anything?
12 A I do have a library, but it's predominantly
13 on the South Florida Water Management District documents,
14 all the normal published things that would, you know,
15 fill up a table of just their standard publications you
16 can get out of their library.
17 Q The tech pubs that they have?
18 A Yeah. Exactly.
19 Q But they're not your --
20 A The SWIM --
21 Q -- quarterly reports.
22 A Nothing. No, no.
23 Q Then, under No. 6 I asked for all documents
24 relating to research on -- and to save us time here,
25 there's A through H. These are actually the names of
34ÿ
1 various publications that I could come up with that named
2 the different areas of research that have been done by
3 Dr. Richardson or yourself or Dr. Craft or Duke Wetland
4 Center.
5 Do you have any other documents relating to
6 those?
7 A No, I do not.
8 Q No. 7, "All data whether used or not,
9 collected as part of the study of the Everglades
10 Protection Area and/or Everglades Agricultural Area."
11 A You've got everything I've got that I've
12 collected to this date.
13 Q No. 8, "All abstracts and materials used in
14 scientific or public presentations . . ."
15 A I have made none.
16 Q But you don't have any documents from those
17 either?
18 A No. Those were retained by the people who
19 made the presentations.
20 Q No. 9, "All documents relating to
21 presentations on Everglades research."
22 Nothing there?
23 A (Witness indicates by shaking head from side
24 to side.)
25 Q No. 10, laboratory notes, notebooks, hard
35ÿ
1 copies of materials on computer disks, including
2 unpublished research results relating to Everglades
3 research.
4 A I don't -- I don't particularly do the
5 research; so I don't have any unpublished results.
6 Laboratory notes and notebooks -- I gave you the one note
7 that I've got from Dr. Richardson on the hydrology plots.
8 Notebooks, those are kept by the scientists of record,
9 doing the research out.
10 Q No. 11, proposals funded, submitted, or
11 unfunded to do research on Everglades-related research.
12 A I don't make proposals.
13 Q Field notes on Everglades research, No. 12?
14 A That would be that same -- the one on the
15 hydrology plots. I'm the logistical support.
16 Q Okay. Do you have people who work for you,
17 Mr. Johnson?
18 A At the present time, no. I'm the laboratory
19 manager, and we do have a lab tech that works for
20 Dr. Rader --
21 Q Who is that?
22 A -- that assists me.
23 John Zahina.
24 Q How do you spell that last name?
25 A Z-a-h-i-n-a.
36ÿ
1 Q Does Dr. Rader work with you on a continuous
2 basis at the lab?
3 A His station is at the lab, but he reports
4 directly to Dr. Richardson.
5 Q He lives --
6 A In town.
7 Q -- locally?
8 A Locally, yes.
9 Q He lives locally. That's more --
10 A Yes.
11 Q -- or less where reports --
12 A Right.
13 Q -- for work when he goes into an office.
14 The laboratory is where he would walk in?
15 A Yes.
16 Q And John Zahina, the same?
17 A Right.
18 Q Does John Zahina work more for Dr. Rader
19 than for you?
20 A It splits by the need of what's going on.
21 Q So he could go out and construct something
22 with you one day and go out and pull samples with
23 Dr. Rader --
24 A Exactly.
25 Q -- the next?
37ÿ
1 A Exactly.
2 Q I think we did 12. No. 13, written
3 instructions from Dr. Richardson and the other
4 supervisors.
5 A Here are -- here's a copy of the request for
6 quarterly reports that came in to the lab. Here's
7 another one on the same thing. The information was
8 posted on the wall. Here's a staff priorities indication
9 concerning job responsibilities of different personnel,
10 who's going to be doing what.
11 MS. PONZOLI: Let's mark these for
12 identification. The March 2, 1992, quarterly
13 report of upcoming presentation would be Johnson
14 No. --
15 MR. ACKERMAN: 9
16 MS. PONZOLI: -- 9.
17 Johnson No. 10 will be a January 6, 1992,
18 memo from Dr. Richardson on quarterly reports.
19 And then Johnson No. 11 will be a memorandum from
20 Dr. Richardson on September the 4th, '92,
21 regarding staff priorities and communication.
22 (Johnson Exhibits 9, 10, 11(1-3) were
23 marked for identification by the reporter and are
24 included herewith.)
25 Q BY MS. PONZOLI: Mr. Johnson, is that the
38ÿ
1 sum total of the documents that you've produced in
2 response to the Subpoena Duces Tecum?
3 A Yes, it is.
4 Q Thank you very much.
5 (Discussion off the record.)
6 Q BY MS. PONZOLI: Mr. Johnson, I'd like to go
7 through your background with you. You have a Bachelor of
8 Science degree from where?
9 A Cal State Long Beach; California State
10 University, Long Beach.
11 Q And your major was in?
12 A Zoology.
13 Q And did you have a minor?
14 A Not a declared minor, but everything was
15 done in the marine fields.
16 Q I see you have one year of graduate school.
17 A (Witness indicates by nodding head up and
18 down.)
19 Q In what?
20 A In zoology.
21 Q When were you hired by Duke -- who is your
22 employer? Who is your actual employer?
23 A Duke University.
24 Q Duke University. When were you hired by
25 them?
39ÿ
1 A In March of 1990, somewhere around then.
2 Q How was that -- was that some type of a
3 search process where they looked for --
4 A They had advertised in North Carolina, and
5 they had advertised here in West Palm Beach. Where else
6 they advertised I'm not really sure.
7 Q Where were you living at that time?
8 A I was living here in West Palm Beach.
9 Q In West Palm Beach. And they advertised for
10 what?
11 A A wetlands center manager.
12 Q And your duties would include what?
13 A Basically setting up a laboratory --
14 locating a facility; setting up a laboratory that was
15 able to do on-site a small amount of water quality work;
16 have area that we could do construction of objects, you
17 know, with whatever experimental materials we need;
18 location of boats on the premises; could house students
19 and professors as necessary and provide them with basic
20 logistics to be able to do field research.
21 Q Does that describe what you presently do?
22 A Yes, to a great extent. I am also
23 considered a research associate, and therefore, I'm
24 involved in helping, assisting, with the design of
25 certain portions of the projects because of my logistical
40ÿ
1 background.
2 Q Do you also reach conclusions --
3 A No.
4 Q -- from your observations?
5 A No.
6 Q No. But you assist in design?
7 A I assist in design. I assist in data
8 collection based upon what the scientist of record has
9 indicated -- the methods that he wants to have it done
10 and where and when and so on.
11 Q Just so I don't start missing things here, I
12 know that you -- or at least I think you indicated before
13 that you designed the dosing study experiment, the
14 physical plant, or helped design --
15 A The physical plant.
16 Q -- the physical plant.
17 A (Witness indicates by nodding head up and
18 down.)
19 Q What else have you helped design on behalf
20 of Duke?
21 A The physical plant, once again, of the
22 fertilizer studies and the hydrology study.
23 Q These are three separate --
24 A Uh-huh.
25 Q Any other designs?
41ÿ
1 A No, no.
2 Q Are there plans to do additional designs?
3 A At this point in time, no. The experiments
4 that we are going to require a physical plant for are
5 pretty much laid out. There may be things come up in the
6 future I'm not aware of that Dr. Richardson wishes to do.
7 At this point in time, no.
8 Q Do you see your work in association with
9 Duke University as having a three-year limit? Do you
10 understand my question?
11 A No, I don't. I don't know. We are all
12 working on soft money. It may not last three years. It
13 may last five. We work on the basis of year to year.
14 Q Just so I'm clear, the Environmental
15 Protection District contracts with Duke Wetland Center or
16 Duke University on a year-to-year basis, to the best of
17 your knowledge?
18 A Yeah. I'm not involved in those
19 negotiations. I don't see the contracts.
20 Q Okay.
21 A I don't know how that specifically works.
22 Q How is your employment negotiated? Is it
23 on --
24 A On a --
25 Q -- a year-to-year basis?
42ÿ
1 A Yeah.
2 Q Does it run this March, March to March?
3 A Basically, yes.
4 Q And your annual compensation is what?
5 A 38.
6 Q Is there any opportunity for bonuses or
7 additional overtime?
8 A No.
9 Q Has it been constant through --
10 A No. It's gone up over time.
11 Q When you started, how much was it?
12 A 30.
13 Q 30. And then was there an incremental time?
14 A Over three years, it's come in.
15 Q Does it come in every six months or every
16 year?
17 A No. Every year, once a year. You get
18 increases once a year.
19 Q Do you remember what the one in between was?
20 A I think I went from 30 to 35 and 35 to 38.
21 Q You do data collection. Whom do you collect
22 data for?
23 A Well, for and with.
24 Q All right. I'm sorry.
25 A Dr. Craft.
43ÿ
1 Q And that would be --
2 A The fertilizer studies.
3 Q Fertilizer study data. What else?
4 A Dr. Qualls for the dosing study data.
5 Q All right.
6 A And Dr. Rader for the invertebrate study
7 data and Dr. Richardson on all of them -- he involves
8 himself personally in all of them -- and any new projects
9 that we might be looking at or coming up with. I am, as
10 the lab manager, responsible for the logistics.
11 Therefore, I transport people here and there and
12 everywhere and usually go with it.
13 Q Okay. Where is your -- where is the lab
14 location?
15 A At 16139 Okeechobee Road, Loxahatchee.
16 Q All right. And how large a facility is it?
17 A It's a three-bedroom, two-story Cape Cod
18 home with a -- happened to be a -- not a mobile -- model
19 home. It was a model home, and as such, they had
20 furnished or air conditioned the garage. And that's what
21 we use for the laboratory areas.
22 Q What kind of water quality work are you
23 doing there?
24 A At the lab?
25 Q Right.
44ÿ
1 A We're capable of some basic testing of
2 phosphorus, the filtration of waters. Most of the water
3 quality work is done on campus.
4 Q You will collect the samples and ship
5 them --
6 A Collect them --
7 Q to North Carolina?
8 A -- filter them, and ship them to
9 North Carolina.
10 Q You will filter them in the lab and then
11 ship them off?
12 A Yes.
13 Q When you do this basic testing of
14 phosphorus, would that be the end of that testing, or
15 would there be more testing to be done in North Carolina?
16 A Yes and no. It depends on what it's for.
17 If it's to determine how much is in our experimental drum
18 for mixing it up --
19 Q Oh.
20 A -- we have to test it there to find out what
21 we're mixing. If it's --
22 Q Right. That's the end of that one?
23 A Right, right. Most of it -- for major
24 collections all of it will be shipped to Duke. There's
25 too much for us to consider even thinking about doing it
45ÿ
1 down here. We just don't have the facilities for it.
2 The minor things, just to keep an idea of where we are
3 and so on, two or three samples a day, whatever, might be
4 done here, but most of it is done exclusively at Duke.
5 They have all the equipment we don't have. We've got one
6 spectrophotometer. That's it.
7 Q That's the sum total of your equipment?
8 A Right. We're not set up to the water
9 quality testing whatsoever. It's all done on campus.
10 Q Would you operate the spectrophotometer?
11 A Yes.
12 Q Have you been trained previously to do that?
13 A I've been trained by the scientists here.
14 Q Here. You were trained on the job for this
15 one?
16 A (Witness indicates by nodding head up and
17 down.)
18 Q Now, would that data be retained here at the
19 lab --
20 A No.
21 Q -- or shipped to North Carolina?
22 A It hasn't been yet because we haven't fired
23 off the system. It's in connection with the dosing
24 study.
25 Q So it's only done incrementally --
46ÿ
1 A Right.
2 Q -- just to see if this --
3 A To see if --
4 Q -- this dosing is at the right level.
5 A Yeah, to see if we're putting our chemicals
6 out at the right level, but it's not for data collection
7 per se.
8 Q Do you also have facilities there for
9 housing students --
10 A Yes.
11 Q -- and professors?
12 A (Witness indicates by nodding head up and
13 down.)
14 Q Did do you keep boats or airboats?
15 A I have an airboat.
16 Q One airboat. No helicopters, I assume?
17 A No. Airboats are expensive enough.
18 Q Are those all of the data collection you're
19 involved with, the ones you listed for me?
20 A Uh-huh.
21 Q How are the samples shipped to Duke
22 University?
23 A Generally they are shipped one of two
24 fashions. They're shipped packed in ice after they've
25 been filtered in coolers either by the airlines for
47ÿ
1 delivery on that day or by Federal Express for delivery
2 by ten o'clock the next morning.
3 Q Is that the water that you're talking about?
4 A Any samples we send.
5 Q Oh, any samples.
6 A If it's plant material, then we usually ship
7 it in refrigerated cargo trucks up to North Carolina.
8 Q And that time would take how long?
9 A I think it takes four days to get there, but
10 it's been cut plant material; so it's not a problem.
11 Q And bugs?
12 A The bugs are all retained down here.
13 Q Oh, they're kept down here?
14 A This is where Dr. Rader's work office is.
15 Q So he does his counts, et cetera, here?
16 A Those are done here.
17 Q Do you have a budget that you are
18 responsible for, for operating the laboratory within a
19 set amount of money, Mr. Johnson?
20 A Not within a set amount.
21 Q Right.
22 A Dr. Richardson and I discuss every year what
23 we've spent the previous year, what we hope to spend or
24 keep in track and so on, and in that aspect, I have a
25 petty cash fund.
48ÿ
1 Q Right.
2 A That is, I send in receipts, and they send
3 me some money back so I can pay for the petty cash items
4 we purchase, but the university pays the rent. They pay
5 the telephone. They pay the utilities. It all comes out
6 of the university in that respect.
7 Q So those large bills go directly back to
8 Duke University. What about if you bill the dosing study
9 and you purchase PVC piping?
10 A I can buy that out of my petty cash account.
11 Q Your petty cash account normally runs how
12 much?
13 A 4,000. That's maximum.
14 Q On a continual basis?
15 A Yeah. I reimburse -- they reimburse by
16 receipts I submit.
17 Q So is there any other funding other than
18 Duke gets the bills directly -- do they go to Duke, or do
19 they go to the Duke Wetland Center, or is it to Duke with
20 a special subaccount called "The Wetland Center"?
21 A It goes to Duke University to
22 Valinda Wilkins, who is the person in the school
23 environment that handles the accounting procedures for
24 the school, and she handles it for the wetland center and
25 any of the professors and anybody in that particular
49ÿ
1 school environment.
2 Q So other than that directly to Duke and your
3 petty cash fund and your personal salary -- those are the
4 three pots of money you draw from to do your duties?
5 A Uh-huh, correct.
6 Q I see on your list of duties in your resume
7 that you act as a liaison between the center and
8 governmental agencies. What does that involve?
9 A I that means I attend South Florida Water
10 Management District meetings.
11 Q Okay.
12 A I attend Environmental Protection District
13 meetings once a year.
14 Q How often do they meet, Environmental
15 Protection District?
16 A The only one I attend is once a year; so I
17 couldn't tell you how often they meet.
18 Q Is that the one time a year when you report
19 to them on the progress --
20 A And I don't report. Dr. Richardson does. I
21 just go with him, actually.
22 Q Does the entire team go with him, or --
23 A No.
24 Q -- just you and Dr. Richardson?
25 A No. Just he and I.
50ÿ
1 Q Do you attend also SAGE meetings?
2 A In some cases, not in all.
3 Q Do you attend T.O.C. meetings?
4 A No.
5 Q Do you ever report back on either the
6 SAGE meetings or the T.O.C. meetings or the South Florida
7 Water Management District meetings, back to
8 Dr. Richardson or anyone else?
9 A Only in a verbal communication a couple of
10 times when he was not present that I attended. It's more
11 of a case he allows me to go when I feel it's necessary
12 to find out what's going on, and I attend.
13 Q Right.
14 A And if there's something important that
15 comes up, I may let him know verbally what it is.
16 Q Have you been to three Environmental
17 Protection District meetings in the time that you've
18 been --
19 A Yes --
20 Q -- with Duke?
21 A -- I believe so.
22 Q What usually goes on at Environmental
23 Protection District meetings?
24 A Generally, what we're there for is when we
25 submit or budget for the next year. That's the primary
51ÿ
1 purpose for my attending those meetings with
2 Dr. Richardson --
3 Q Do you --
4 A -- just to keep me informed of what's going
5 on more than anything else.
6 Q Who runs the Environmental Protection
7 District meetings?
8 A Well --
9 Q Is there a single person who's been in
10 charge all three years?
11 A No, no.
12 Q Is it a shifting --
13 A Maybe I'm using the wrong term. It's E.A.A.
14 taxing authorities. Maybe it's not EP -- it's not
15 environmental protection. It's the E.A.A. taxing
16 authority. That's what we get our budget from. That's
17 what it's called. It's not the Environmental Protection
18 District, not EPA -- or I don't believe it's called
19 "EPD."
20 MS. PONZOLI: Am I wrong? Isn't it the EPD?
21 MR. BURGESS: I think we're talking about the one
22 and the same.
23 THE WITNESS: It's run by their board.
24 Q BY MS. PONZOLI: Who's in charge of their
25 board?
52ÿ
1 A I haven't the vaguest idea, if you want to
2 know the truth.
3 Q Oh, you don't remember who these people
4 were?
5 A When you meet them once a year, it's
6 difficult to keep track of them when you especially don't
7 speak to them or have any --
8 Q I see that you, understand your duties, have
9 developed and implemented a three-year exhibit plan.
10 What is that?
11 A At the South Florida Science Museum?
12 Q It doesn't say.
13 MR. BURGESS: Could we just make one copy of that
14 document?
15 MS. PONZOLI: Sure, sure.
16 THE WITNESS: If you're referring to the second
17 page, that refers to a job at the South Florida
18 Science Museum as the executive director.
19 Q BY MS. PONZOLI: Oh, this is not in
20 reference to your Duke University work?
21 A No.
22 (Off the record discussion.)
23 MR. ACKERMAN: Let's go on the record. I'm going
24 to leave the deposition at this point and ask the
25 witness to, again, not divulge any of the
53ÿ
1 information contained within the materials which
2 we have withheld on the basis of the trade secret
3 privilege.
4 And again, answer and provide information
5 which is not protected by that privilege as fully
6 as you can and to inform counsel when she has
7 posed a question which calls upon you to divulge
8 that information, answer the question as fully as
9 you can without divulging the information, and
10 not divulge the information that we have
11 withheld.
12 From the sound of the way the deposition
13 has proceeded so far, it does appear that you
14 have asked all the questions that you plan to ask
15 about the trade secrets privilege, but if you
16 decide you want to get back into it -- you have
17 my card -- please call me. If you want to go
18 back into that area, please let me know, and I
19 would ask the witness to call me if he has any
20 questions or concerns. Fair enough?
21 THE WITNESS: (Witness indicates by nodding head
22 up and down.)
23 MS. PONZOLI: That's sounds fine to me. We'll
24 try to get you on the phone. I can't promise
25 we'll be able to, but we'll make the initial
54ÿ
1 call.
2 MR. ACKERMAN: I think I'll be back tomorrow or
3 somebody else. I think it will be me.
4 MS. PONZOLI: For Dr. Rader?
5 MR. ACKERMAN: For Dr. Rader. Thank you.
6 MS. PONZOLI: Let me just ask, Dr. Rader is your
7 expert, isn't he?
8 MR. BURGESS: Yes. Why will he have two separate
9 counsel?
10 MS. PONZOLI: All right. We don't know. All
11 right. Nice to have met you.
12 MR. ACKERMAN: Nice meeting you. Will you just
13 call me later anyway?
14 THE WITNESS: Definitely.
15 (Whereupon Mr. Ackerman left the
16 deposition proceedings.)
17 Q BY MS. PONZOLI: When we're looking on
18 page 2, the rest of these activities, duties and
19 accomplishments, do all of these pertain to other --
20 A Other jobs.
21 Q -- other jobs, not the one that you're
22 presently involved in?
23 A Correct.
24 Q I guess it would probably save us time,
25 Mr. Johnson, if you could just do a summary of your work
55ÿ
1 experience following your graduation in '79 and just tell
2 me essentially what jobs you held up until the time that
3 you were employed by Duke Wetland Center.
4 A I was hired out of college as the aquarium
5 curator, chief aquarist for the Cabrillo Marine Museum in
6 Los Angeles, California or San Pedro, California. It was
7 a brand new facility that didn't even have the walls up;
8 so I basically built all the marine systems and designed
9 all the marine systems and designed all the displays and
10 set the whole aquarium up. It's Los Angeles's major
11 marine aquarium.
12 While I was there, I was contracted on my
13 own time to do "Wild Kingdom" television shows as the
14 cohost and associate producer and from 1976, which was my
15 first show prior to going to work for the museum, until
16 1985, I did a multiple of different shows for them.
17 Q You cohosted? You actually would help --
18 A I was on camera. I did half the narration,
19 generally, and I usually came up with the script concepts
20 and all the different shows on the marine shows.
21 Q Would you direct the camera crews or
22 something?
23 A No. We were kind of -- it was a team. We'd
24 been doing them for a number of years together; so we
25 understood how each other worked.
56ÿ
1 Q Okay.
2 A From there I went to work for
3 David Manwarren Corporation. It was an outfit that
4 designed and built zoos and aquariums all over the world.
5 And I went to work for myself after that and
6 more into the marine design and doing predominantly
7 aquarium designs for individuals, small museums, zoos,
8 and so on.
9 I took a job in 1988, October of '88, with
10 the South Florida Science Museum here in West Palm,
11 moving my family from California to here.
12 And then when this position opened up with
13 Duke University, I hired on with Dr. Richardson.
14 Q Do you continue to do any of these other
15 jobs in addition to your work with --
16 A No. My work load has had me swamped, if you
17 must know the truth. I'd love to do some of those other
18 jobs, but at the present time, no.
19 Q So your experience, if it's fair, would be
20 you've had more marine experience prior to signing on
21 with Dr. Richardson?
22 A Correct.
23 Q Likewise, your publications are related to
24 marine topics. Is that accurate?
25 A That's correct. The publications list
57ÿ
1 that's given to you does not include the latest
2 publication from the Duke Wetland Center. I just have
3 not updated my resume.
4 Q Do you have any particular training in
5 design of laboratory equipment or experiments?
6 A I was an electronics technician, second
7 class, in the Navy; so I've got electronics background.
8 I've worked a variety of different part-time jobs in the
9 construction industry. Having worked as in the aquarium
10 field, you discover very quickly that you have to become
11 a master and a Jack of all trades, and much of the
12 Everglades is using the same kind of type of concepts for
13 movement of water and electronic equipment and
14 development of things.
15 Q The Navy gave you what degree of training?
16 A I had a Class A school in electronics.
17 Q It seems as this is almost like a natural
18 talent, though --
19 A It is.
20 Q -- more than just a trained.
21 Okay. You have described for me previously
22 three experiments that you helped do the physical design
23 and the building, the first being the dosing study. Is
24 that correct?
25 A That's not the first one we built.
58ÿ
1 Q Maybe we should do them chronologically.
2 Which was the first one you did?
3 A That would be the fertilizing study.
4 Q Then the second one would have been?
5 A It would have been the dosing study and then
6 the hydrology study.
7 Q Then the hydrology. Okay. Do any of the
8 publications that you've handed me deal with the
9 fertilizer study?
10 A No.
11 Q Did the notes that you handed me from
12 Dr. Richardson -- did they deal with the fertilizer
13 study?
14 A No.
15 Q Are there any documents --
16 A No.
17 Q -- that you gave me that dealt with that?
18 I'd like to mark this for identification.
19 It's a South Florida Water Management District map of the
20 lower half of Florida.
21 (Johnson Exhibit 12 was marked
22 for identification by the reporter and is
23 included herewith.)
24 Q BY MS. PONZOLI: Mr. Johnson, I'd like for
25 you to indicate to me where the fertilizer study was
59ÿ
1 located.
2 A It was located in three locations in area
3 2-B. One is seven-tenths of a mile from the S-38 -- or I
4 should say the L-36 canal on the eastern side of 2-A --
5 excuse me -- 2-B.
6 Q Okay.
7 A One is approximately one mile from that same
8 location. And one is on the western side of 2-B about
9 halfway between the Sawgrass Recreation Park and the
10 corner.
11 Q Are you marking those on the map roughly --
12 A Yes, I am.
13 Q -- where you believe --
14 A Yes. So we've got -- there's one site,
15 there's one site, and here's one site (indicating).
16 Q Now, when was this fertilizer study first
17 designed, to the best of your knowledge?
18 A It was discussed as a team effort down here
19 after I had set up the laboratory in the early spring of
20 1990.
21 Q And who was on the team?
22 A Dr. Craft --
23 Q Okay.
24 A -- Dr. Qualls --
25 Q All right.
60ÿ
1 A -- Dr. Richardson.
2 Q What was the purpose of this experiment?
3 A As I understand it, from the hypothesis
4 generated by Dr. Craft, who was really the man in charge
5 of that experiment, it was a loading experiment to apply
6 fertilizers in the levels of phosphorus and a combination
7 of nitrogen and phosphorus and just nitrogen at different
8 levels to determine or to try and find out what plants
9 would do under these different levels, what plants would
10 invade, what plants would die out, what the effect was of
11 phosphorus additions equivalent of what they normally get
12 over the year at the high end and down to the -- with
13 controls to where there's no phosphorus added and so on.
14 Q Do you recall what the actual hypothesis of
15 the experiment was?
16 A Not -- not in specifics, no.
17 Q Okay.
18 A It's covered in the annual reports of all
19 three years.
20 Q To the best of your knowledge, do the annual
21 reports reflect what you recall going on in those
22 conversations?
23 A Very much so, uh-huh.
24 Q At these three sites, -- well, strike that.
25 Why were these three particular sites
61ÿ
1 chosen?
2 A The western site along over here close to
3 the --
4 Q Can we label them A, B, and C? Would that
5 help?
6 A Sure. That would be fine.
7 Q A will be the western. B will be the
8 midpoint, and C will be the eastern.
9 A The experiment was chosen to run in three
10 different types of plant communities. The A site is a
11 slough community; the B site is a mixed community of
12 sawgrass and cattail; and the C site is a pure sawgrass
13 community. And by traversing the dike into 2-B, we
14 needed to -- at the time we did not have a boat. We
15 needed to be able to get to the sites readily.
16 We needed an area that was not inundated
17 with any water flow per se of the schedule -- we were
18 informed by the South Florida Water Management District
19 that 2-B was basically a rainfall schedule. What soil
20 samples and water samples had been taken by Dr. Craft in
21 the area over time had shown that it was a low
22 concentration area, was not been fed specifically by any
23 waters whatsoever. It was mainly just rainfall.
24 And we wanted to be able to start off with
25 an area that was to some extent, you might say,
62ÿ
1 background minimal and be able to add material to it to
2 find out what the reaction would be.
3 Q So you chose an area that was physically
4 accessible --
5 A Exactly.
6 Q -- because you had no airboat --
7 A Right.
8 Q -- to get you some distance into a wet
9 marsh?
10 A Right.
11 Q And you chose an area that did not have
12 flow. Is that accurate?
13 A Correct. As it turns out now, I would not
14 have chosen any other place. It turned out to be the
15 best site, whether we had a boat or not.
16 Q Excuse me. I missed something.
17 A Well, if you have a boat, you can look all
18 over the place.
19 Q Right.
20 A You can use helicopters and get flown a lot,
21 and we could have chosen a lot of sites and said, well,
22 this would be a lot better, but we didn't have a boat; so
23 we couldn't get to it. Now that we've been everywhere
24 out there with helicopters, airboats, by foot, I still
25 would have chosen exactly where we're at because we were
63ÿ
1 lucky enough. We chose the right sites to begin with.
2 Q But you chose them, really on the basis of
3 this --
4 A On the basis of --
5 Q -- slough?
6 A -- accessibility --
7 Q Accessibility.
8 A -- their type of plant communities and the
9 low levels of water flow and input.
10 Q Who made the determination as to the slough,
11 the mixed sawgrass-cattail?
12 A Dr. Craft did.
13 Q Did Dr. Craft do initial soil levels of
14 phosphorus in the soil?
15 A I'm sure he did. I mean, that's part of the
16 basic experiment.
17 Q Did you have to build, physically build,
18 something for this experiment?
19 A Yes.
20 Q What did you have to build.
21 A We had to build enclosures, two-meter-square
22 enclosures, and there are 81 of them.
23 Q There are 81 enclosures. Obviously, they're
24 not equally divided. How many on each?
25 A Well, there's three reps per site of -- I
64ÿ
1 believe it's nine plots, but not all plots have
2 enclosures. There's walled and unwalled enclosures for
3 controls.
4 Q Are they evenly divided?
5 A There's one unwalled control. There's one
6 walled control, and all the rest of them are treatments.
7 And then there's three reps per site and three sites. I
8 think that adds up to 81.
9 Q What did you build?
10 A I built all of the enclosures, provided all
11 the materials.
12 Q Explain the enclosures. You said they're
13 two-meters square, but are they --
14 A They're fiberglass roofing, heavy-duty
15 fiberglass roofing panels that are cut down to the right
16 size with two-by-two square stakes in each corner drilled
17 and set with special bolts so that we could seat them
18 into the soil, below the soil's surface. These had to be
19 dug in approximately 8 to 10 inches under the soil's
20 surface, then aligned and bolted together. Then we have
21 to put foam in the corners to keep the water flowing, the
22 water in the pipes -- in the sites, and then signage in
23 the area and so on.
24 Q Wait, wait. You're going fast for me.
25 A Sorry.
65ÿ
1 Q You put foam where?
2 A Roofing panels are often like this
3 (indicating).
4 Q Right.
5 A Ours are like this. They're kind of squared
6 off at the bottom --
7 Q Right.
8 A -- because they're very heavy fiberglass.
9 Q They're kind of -- what is it? What is that
10 design called where it's squared off? There's a name for
11 it.
12 A I don't remember.
13 Q Yes, yes.
14 A But when you fasten these two-by-two
15 posts --
16 Q Right.
17 A -- you've got openings.
18 Q Right.
19 A We didn't want water flowing in and out,
20 washing away the fertilizer as it's applied; so each one
21 of those openings had to be sealed so that the water
22 entering -- wasn't entering and exiting thereby flushing
23 the system.
24 Q So you have almost a swimming pool effect.
25 A To some extent. I mean, it's not -- you
66ÿ
1 know, it's a swimming pool with no bottom.
2 Q Pardon?
3 A It is a swimming pool with no bottom. It's
4 just walls. There's no bottom.
5 Q Right, right, right, right.
6 A So as water levels change, water can go up
7 and down per se. It just can't flow. If it was flowing
8 from the south to the north, it couldn't.
9 Q Right, right. Did you ever judge the lag in
10 time between the water levels outside the two-by-two
11 squares and the water levels inside?
12 A There basically isn't any. It's that water
13 levels in that particular area in 2-B don't change a lot,
14 and being rainfall fed, any water that you have would not
15 only -- it would come up through the bottom if it changed
16 dramatically. So there wasn't any flows per se.
17 Q You've been with them about three years.
18 How much time would you estimate you've spent out there
19 in the field?
20 A I probably spend three days a week in the
21 field.
22 Q Every week of the year, more or less?
23 A Well, there's more -- probably two thirds of
24 the year. We don't -- there's not a lot done back at the
25 lab. Most of it is our -- we're field research; so we
67ÿ
1 spend most of our time in the field.
2 Q How far -- you went 8 to 10 inches below the
3 soil's surface?
4 A Thereabouts, yes.
5 Q Then what? Sealed this unit completely?
6 A Then the posts fastened and sealed the unit
7 up and then drive in marker posts to indicate what's
8 what. Then we set in pore water wells.
9 Q Tell me what that means.
10 A A pore water well is a piece of PVC pipe
11 with screening across the bottom that the bottom side of
12 the pipe is set down to a specific depth. Dr. Craft is
13 the one who -- actually, we took a coring machine or a
14 coring tool, and he cut them out, and I assisted him in
15 doing so and set the wells in place. And then you wait
16 for the water to come through so you can measure water at
17 a specific depth below the soil rather than taking
18 surface water.
19 Q What else did you construct in regard to
20 these?
21 A That's -- that's all that's constructed in
22 regard to those besides the signage, just to indicate the
23 warning signs up to tell people to stay away from the
24 area, watch out, danger.
25 Q Did you help draw the data from this site?
68ÿ
1 A I've assisted Dr. Craft many times in going
2 out and collecting data, yes.
3 Q What do you do when you collect the data?
4 A We usually take water samples from different
5 depths, water samples from the surface.
6 Q What depths do you take?
7 A 25.
8 Q Centimeters?
9 A And I believe that one takes 12, also.
10 Q Is that you continuing to draw samples from
11 this?
12 A Yes, at the present time. The study has
13 been going for three years. It's continuing to run, but
14 at the present time, we're not taking water samples but
15 twice a year. We've done every other month for two years
16 now, and I believe his schedule now is to take it once
17 every six months.
18 Q How long does he intend to continue this
19 experiment?
20 A I don't know. I mean, it was -- I haven't
21 the vaguest idea. He's been getting a lot of good data
22 out of it, from what I understand from telephone
23 conversations, but what and how long it's going to run --
24 well, in plant experiments you run as long as you can run
25 because it takes so long to get changes from plants.
69ÿ
1 It's not like animal experiments or biological
2 experiments.
3 Q You helped him pull water samples. What
4 else have you helped him pull?
5 A We've done plant cuttings, sampling.
6 Q Did you do anything to these two-by-two
7 meter squares after you built the contained --
8 A Oh, we added fertilizer.
9 Q -- pool?
10 You added the dosing?
11 A We added the dosing material.
12 Q But you did not alter the plants within them
13 in any way?
14 A No. That would null and void the
15 experiment.
16 Q All right. And the dosing was added on what
17 basis?
18 A That I'm not sure. Dr. Craft is the one
19 that determined that. I have no -- I'm not even sure
20 where he came up with the numbers or what the bases are.
21 Q What the numbers are.
22 A That's not my area.
23 Q Did you design a device to do the dosing?
24 A No.
25 Q Did he bring that device with him?
70ÿ
1 A Pull a scale, weigh it out, and put it in a
2 Ziplock bag.
3 Q It's added dry?
4 A Yeah, it's added dry.
5 Q Do you remember how often it was added dry?
6 A I believe it's every other month.
7 Q And you continued to add it every other
8 month?
9 A He comes down every other month and adds it.
10 Being a dose -- not -- being the type of study it is,
11 it's a loading experiment, not so much a dosing. It's
12 not a concentration experiment. It's a loading
13 experiment. It's only based upon how much over a period
14 of time that you've added to it.
15 Q So you've helped him pull vegetation samples
16 also. What else? Anything else?
17 A Vegetation, water. We've pulled some cores
18 out of there.
19 Q Soil cores?
20 A Soil cores. But he is -- Dr. Craft is a
21 very meticulous, likes-to-do-it-himself individual, very
22 precise about what he does; so I assist him. I don't go
23 out and do them myself.
24 Q So you're just assisting someone who has a
25 very clear pattern in his own mind how he's proceeding.
71ÿ
1 A He's trained me on how to take the water
2 samples -- he and Dr. Qualls -- and he's trained me on
3 how to take the soil samples, but generally he comes
4 down. It's his experiment, and he operates that
5 experiment. I assist him in any way I can.
6 Q Does he actually pull the soil cores
7 himself? Okay. He takes water. He's taken vegetation
8 samples. He's taken soil cores. Anything else?
9 A Not that I know of at this point in time.
10 That's the major experiment.
11 Q Was this experiment affected by Hurricane
12 Andrew?
13 A Thank God, no.
14 Q Did you go out and check it?
15 A Yes, I did. I went all over the Everglades
16 the day after Hurricane Andrew, all over 2-A and 2-B.
17 (Short recess.)
18 Q BY MS. PONZOLI: I'd like to return,
19 Mr. Johnson, just back to when you were hired by
20 Dr. Richardson and ask you what -- what was the project
21 that Dr. Richardson explained to you that you would be
22 participating in, working as a lab manager?
23 A At the time he hired me, what was explained
24 was that we would be doing Everglades research, setting
25 up a variety of experiments which had not even, at that
72ÿ
1 point in time, been discussed, trying to understand what
2 the effect of hydrology is in the Everglades, what the
3 effect of nutrients are in the Everglades, to do
4 experiments rather than just monitoring, to do a gradient
5 study to find out what was happening in certain areas.
6 We would be using helicopters at the time
7 for the gradient study. We would be going out and
8 setting up some experiments to try and manipulate the
9 environment by adding different types of nutrients to
10 determine what happens. Nobody had done that at that
11 point in time. And I was just to monitor to find out
12 what is rather than what would happen if.
13 Q Do you recall why he felt the experiments --
14 well, strike that.
15 Was there some implication that the
16 experiments were a better method of determining what was
17 going on out there rather than the monitoring?
18 A Experiments tell you what -- if they work --
19 what happens under certain situations. Monitoring only
20 tells you what did happen, what is existing now. It
21 doesn't tell you why. You don't find out the mechanisms
22 of what causes what. There's no way to determine that by
23 monitoring per se. You can only find out what is. Only
24 through experimentation, actual experiments, can you find
25 out what causes what.
73ÿ
1 Q So it was your understanding that you were
2 looking at cause-and-effect experimentation?
3 A As much as you can do. I mean, there's
4 limitations as to how much you can find out from one
5 experiment, how much you can find out from a thousand
6 experiments. You could do a thousand and still not find
7 out what cause and effect is.
8 Q What was the effect that you were examining?
9 A That really -- I can't say that that -- you
10 know, if the Everglades is changing, what's causing it.
11 Q Was there an assumption that it might not be
12 changing?
13 A I don't think anything in science is ever
14 under the assumption that it never changes. Natural
15 systems change consistently. The Everglades today is
16 nothing what it was 10,000 years ago. It changes every
17 day. That's a natural succession. But where it's
18 changing to and what pathways it takes, we may be able to
19 make some determinations as to how to explain why.
20 Q So you were looking to explain the
21 succession of the Everglades?
22 A No.
23 Q Okay.
24 A No. We were -- I can't even -- that's more
25 of the scientist's -- I don't define that. Okay? My job
74ÿ
1 was to provide them with statistical support to be able
2 to do the research that they decided would be the things
3 necessary to understand what was going on in the
4 Everglades. Because we had been hired by the
5 Environmental Protection District, they were trying to
6 figure out what was going on. It was not something that
7 people in Florida were unaware of. I mean, being a
8 resident of Florida I knew that there were questions
9 going on of what's changing what, and because of that, it
10 was -- it didn't even have to be said. It was just
11 apparent that we were looking at, if there were changes,
12 what was causing the changes, what was natural, what was
13 not natural. Is it good, is it bad is a value judgment.
14 Q So it would not be inherent in the research
15 that you understood you would be doing to make
16 determinations of what was good and bad?
17 A No way. I don't make those determinations.
18 Q Did you understand the research team would
19 be making those kinds of decisions?
20 A I don't think they make value judgments in
21 that way. Good or bad is not something you can judge in
22 that fashion.
23 Q So as you understood it, they would be
24 looking at what was causing what in the Everglades?
25 A Yeah, to some extent, as much as they could
75ÿ
1 find out, as much as you can determine on a natural
2 system of cause and effect. As I said, you can do one
3 experiment and maybe find out. It may take a thousand
4 experiments to find out an absolute. It may be
5 tendencies. It may be trends.
6 With the Everglades, you're talking a
7 thousand different aspects that you can manipulate --
8 rainfall; water flow; sunshine, you know, how much you
9 had that year; whether it's nutrients in the water or
10 lack of nutrients. There's all kinds of things that
11 affect succession. Nobody yet has ever figured it out
12 that they can put it down to an actual formula on any
13 system, not just the Everglades.
14 Q You were looking for dominant trends?
15 A To some extent, you might say that, yeah.
16 Q Were the two dominant trends hydrology and
17 nutrient enrichment?
18 A Yeah. I mean, those were two that had been
19 areas we'd been asked, I guess, you might say, to look
20 at, and I can't even say who asked because I wasn't
21 involved with that. I'm not involved with contract
22 negotiations.
23 Q Do you understand there to be an
24 articulation of the goals that you were trying to
25 accomplish in this long-term project?
76ÿ
1 A Yes. Are you asking, though, for can I
2 articulate what the goals are, or are you asking if there
3 was to be an articulation to some final product of what
4 we would find out?
5 Q Both. I'm asking, one, do you know the
6 goals, or if you don't know the goals, do you know where
7 I can find the goals.
8 A I think the best place for the goals of the
9 whole project is Dr. Richardson. My goals are much
10 smaller than his overall goals. He has to look at the
11 whole picture. I look at pieces of it. My goal is to
12 provide the logistical support to assist the team in
13 developing and designing the experiments on the areas in
14 which I have expertise.
15 Q Do you ever have meetings where you discuss
16 where the research has gone?
17 A Generally we try and meet at least once a
18 year --
19 Q Okay.
20 A -- on campus.
21 Q At Duke?
22 A Yeah, at Duke, right. And usually, it's
23 because we are setting -- I say "usually" -- I've been
24 employed at Duke for almost three years.
25 Q Right.
77ÿ
1 A Every year we're setting up some new
2 experiment.
3 Q Right.
4 A So we go up there in January. We often sit
5 down and discuss a little bit of what we've done but in
6 more cases of what we hope to do and go over and do a
7 team effort in construction of the criteria necessary for
8 that. And I'll bring up my ideas of how we can
9 physically do it.
10 Q Is there a lot of camaraderie on that team?
11 A Oh, yeah. We work together. No team is
12 perfect, but at the same time, I think we do a very good
13 job of helping each other out in all areas.
14 Q So this first year in '90, that meeting in
15 January would already have taken place. Was there a
16 meeting when you came on board in March?
17 A It was, and it was down here.
18 Q Down here.
19 A 'Cause I had just found the location to
20 locate the Wetland Center that was central to the
21 Everglades Agricultural Area office that we were dealing
22 with, central to South Florida Water Management District,
23 to the airport, those kinds of things. That's the reason
24 we're located where we are.
25 Q So that first year you set up the
78ÿ
1 fertilizer experiment; is that right?
2 A Right. That started in June.
3 Q And continues to run to date?
4 A Correct.
5 Q At the following January, did you have a
6 meeting?
7 A Yes, we did.
8 Q When that January came around in '91, did
9 you design another experiment?
10 A Yes. That's when we started to work on the
11 dosing study.
12 Q When you had that meeting in '91, were there
13 some commonly understood accomplishments of the one
14 year's worth of research?
15 A No, because the data hadn't been collected
16 as yet.
17 Q Okay.
18 A It takes time. It hadn't even been a year
19 old.
20 Q So there were no "We've done this in one
21 year" other than "We've just put these things on the
22 ground and laid --
23 A That's it.
24 Q -- it all out"?
25 A Right.
79ÿ
1 Q Okay. So you set up the dosing experiment,
2 which I will go through in detail with you.
3 A Right.
4 Q The following year in January of '92, at
5 that point when the team met, did you meet at Duke again
6 in '92?
7 A Uh-huh.
8 Q And you designed the hydrology experiment at
9 that time?
10 A No. At that point we went back over the
11 dosing study.
12 Q Right.
13 A It was a major, major effort, so much more
14 than the fertilizer plots required to come up with it.
15 We went back over what we felt would be the problems, the
16 good points, the bad points, what changes we wanted to
17 make, and so on, and so that's predominantly what that
18 experiment -- or that meeting was about more than
19 anything else.
20 Q Right.
21 A At the time we also discussed what we would
22 do about the hydrology experiment that Dr. Richardson had
23 come up with and went through it to some extent.
24 Q When was the hydrology experiment put on the
25 ground?
80ÿ
1 A I believe it was done -- in the spring of
2 '92, I think we put it in -- I take that back. It was
3 done in the fall. Basic concepts were talked about when
4 Dr. Richardson was down here in the fall of '91, and at
5 that point in time, myself and one of my -- a part-time
6 person I'd hired went out and cleared the areas to build
7 the hydrology experiments and set it up basically to kill
8 off any plant material there so we could start, you might
9 say, with zero -- at a zero point.
10 Q What -- go ahead.
11 A I'd have to explain how the hydrology
12 experiment works for you to fully understand it.
13 Q I want to do them one by one.
14 A Right. But then in the spring is when we
15 actually started the experiment of '92, if I've got my
16 dates right.
17 Q And the dosing, we know, because of
18 Hurricane Andrew is actually coming on line --
19 A Now.
20 Q -- 10 months after its --
21 A No. A year and a half after. We started a
22 year and a half ago building it. We met in January of
23 '91, and I started at that point locating materials --
24 Q You're right. I'm sorry.
25 A -- and designing them and continued on
81ÿ
1 through.
2 Q Let me return to January of '92, though,
3 when you met. At that time had you come -- were there
4 some commonly understood pieces of information that the
5 experimentation which had been going, at least while you
6 were there, for two years -- were there pieces that were
7 understood at that point or thought you understood at
8 that point?
9 A Everything that had been understood at that
10 point was printed in the annual report which came out
11 that summer; so the results of what they had collected to
12 date were present there, and we knew about it, and all of
13 us had read it. So it didn't need to be discussed per
14 se. It was more involved with the hydrology -- or the
15 dosing study thing.
16 Q Well, let me just try to sort out for my own
17 benefit. You're setting up a dosing study or had been in
18 the process of setting up a dosing study in January of
19 '92 for nearly a year, I guess, at that point. And you
20 had just recently from the prior fall set up a hydrology
21 experiment.
22 A Started on the first part of it.
23 Q Right.
24 A Which would take nine months to a year to
25 just prepare the land. And you had to keep in mind how
82ÿ
1 much water we have out there determines what you can do
2 and when.
3 Q Would it be fair to say that it was not
4 clearly understood whether it was hydrology and/or
5 nutrients that were causing changes?
6 A That didn't apply.
7 Q All right. Why not?
8 A That wasn't -- it wasn't a case of
9 understanding. I mean, if you're asking for my
10 opinion --
11 Q Right.
12 A My opinion is hydrology is the major problem
13 in the Everglades, period.
14 Q Well, "major problem," what do you mean?
15 A We don't have enough water. We've been in a
16 drought for a number of years, and lacking water is
17 what's done the majority of changes in the Everglades.
18 Q Okay. And these changes include what?
19 A Plant changes -- and it's not just lack of
20 rainfall. It's how they manage water. If you hold water
21 for people into an area that normally has that much water
22 over it and then now it's got three feet of water over
23 it, you're going to change the community. It's not the
24 same thing. You can't take and call a lake the same
25 thing as a marsh. It doesn't work.
83ÿ
1 So, you know, it's a combination effort of a
2 lot of things between management of water flows, between
3 how it flows, between whether it's a sheet flow versus a
4 lake storage system. Those are the major problems that,
5 personally, my opinion is of the Everglades.
6 Q Do you think it has any other major
7 problems?
8 A I think that 6 million people have added to
9 it. I think that nutrients may or may not have a major
10 effect on it. We don't know. That's not something I
11 have the capability of determining or the evidence to
12 back it up, either way, one way or the other.
13 Q And you don't believe that the experiments
14 done by the Duke Wetland Center indicate whether
15 nutrients have --
16 A I don't know the results because they are
17 still just coming in with data. As I said, it takes a
18 long time to get results from plants. They don't react
19 overnight. It may take three -- it may take four years
20 on the fertilizer plots before you can even say anything
21 of concrete evidence.
22 Q Do you believe that your views are commonly
23 held by the other researchers?
24 A I don't know. You'd have to ask them.
25 Everybody's got a lot of different viewpoints on a lot of
84ÿ
1 different things. We try at the lab -- when we have
2 discussions on this stuff, everybody can voice an opinion
3 of what they might think it might be, but that's all it
4 is is an opinion. And you have to have data to support
5 that and to back up that to make a statement in way,
6 shape, or form. And I don't have data on any of this.
7 Q You were saying that hydrology and 6 million
8 people -- do you have any opinion on whether the ag area
9 has an impact on the Everglades?
10 A The ag area has to have an impact on the
11 Everglades just like the people have a impact on the
12 Everglades, just like lack of rainfall has an impact.
13 Everything has an impact.
14 Q Is this a detrimental or beneficial impact?
15 A At this point in time, I don't have any data
16 to back up either direction.
17 Q Do you have any data to back up the
18 6 million people?
19 A The fact that Florida didn't have people
20 down here a hundred years ago and what's going on in
21 Florida now compared to then is -- is -- that's data
22 enough. I mean, you're talking opinion.
23 Q How about it didn't have
24 500,000-plus-or-minus acres under intense agricultural
25 activity?
85ÿ
1 A That, too. I mean, there's all kinds of
2 things you can say.
3 Q So when you were first hired, you understood
4 you were going to be looking at the cause and effect of
5 changes in the Everglades?
6 A That would possibly be one part of it.
7 Q Okay. That would be part of it.
8 A But possibly. I mean, that's something that
9 I don't make determinations on.
10 Q All right. And you would be giving
11 logistical support for the efforts that would
12 determine --
13 A Exactly.
14 Q -- need?
15 Over the course of time, you have reached
16 the conclusion that hydrology is, in fact, a cause of
17 changes?
18 A I think it's one of the major causes of
19 changes, right.
20 Q But you have not reached the conclusion that
21 nutrient enrichment is a cause of some of the changes?
22 A I have not reached -- I don't have any
23 evidence to back that up.
24 Q Just so I'm clear, what is the evidence you
25 have that the hydrology --
86ÿ
1 A Just personal experience. It's not even --
2 what I've seen take effect out there and historically
3 what the Everglades was a hundred years ago compared to
4 what it is today. That's all. We're talking purely
5 opinion here.
6 Q We've all got them.
7 A Yep.
8 Q All right. We now have a fertilizer
9 experiment in place. And these were A, B, and C that we
10 drew in Water Conservation Area 2-B?
11 A Correct.
12 Q You've begun the hydrology experiment. Can
13 you --
14 A Yes.
15 Q Can you add that for me on the map?
16 A It's at the same site as C --
17 Q Right.
18 A -- a hundred yards to the west in a pure
19 sawgrass stand.
20 Q Fall of '91 you built the hydrology
21 experiment. Explain that to me.
22 A What we did is we went out with brush
23 cutters like an edger that's got a great big saw blade on
24 the bottom of it, and we cut off ten-foot-square areas,
25 twelve of them, twelve areas ten by ten, a hundred square
87ÿ
1 feet, cleared down to ground level. And at the time,
2 there's about six inches of water, and we needed to come
3 clear down to the ground surface. Within that center of
4 the ten by ten area --
5 Q Right.
6 A -- we then took nine-mil black polypropylene
7 plastic sheeting --
8 Q Right.
9 A -- and double-layered it over the top and
10 shoved it into the ground two feet deep all the way
11 around the edges, and this was allowed to sit with this
12 black plastic over it until the spring of '92.
13 Q Approximately six months?
14 A Six to nine months, something like that.
15 Q You were going to kill everything?
16 A Yeah. We wanted to kill off any plant that
17 was there so that nothing was growing at the time to find
18 out what invasions would take place and so on, based upon
19 hydrology.
20 Q Now, tell me how you set up the experiment.
21 A Okay. In the spring of this year, what we
22 did was each rep -- there's three reps with four plots
23 per rep: one control, one phosphorus dose, one of high
24 water, and one of fairly low water. And what I say by
25 "high water," "low water," since we cannot control the
88ÿ
1 water depth out there, we took the control plot and dug
2 up the surface down to about thirty centimeters and
3 turned it over completely.
4 And it has PVC walls that go around it of a
5 sheet stock PVC that are approximately anywhere from
6 six inches on the narrow ones to eighteen inches on the
7 high ones. These were banded all the way the outside and
8 shoved into the ground.
9 Q How deep?
10 A About six-foot squares where the plastic was
11 and taken the plastic off, and if I had -- using that as
12 a delineator mark as to where it was.
13 Q So you had ten by ten to start with but were
14 now down to six?
15 A Right. So you have a two-foot band all the
16 way around, and the control was just dug up to
17 thirty centimeters. And the --
18 Q Wait. Let me go back. The controls dug
19 up -- you just finished telling me a few seconds ago that
20 you just turned -- did you overturn the soil?
21 A Turned the soil.
22 Q So it's a disturbed site?
23 A Disturbed site.
24 Q But it's still the same soil --
25 A Right.
89ÿ
1 Q -- levels --
2 A Same soils.
3 Q -- basically?
4 A Right. Exactly. And the walls were shallow
5 on those --
6 Q Right.
7 A -- so the water wouldn't have any effect on
8 them. But the walls weren't to keep the water in or out
9 either. They're not watertight walls.
10 Q What were they for?
11 A To delineate the specific area more than
12 anything else and to keep the soils from just washing
13 water from one soil and seed forms from outside the area
14 into the area.
15 Q Was it your understanding that you had
16 killed the seeds that might be in the areas that you had
17 covered with black?
18 A As much as you could. I mean, we saw no
19 growth whatsoever. I mean, there was nothing growing in
20 those plots. Black plastic has a tendency to really do
21 that. In one of the other sites we took and we dug out
22 the soils.
23 Q So the control is now just turned up --
24 A Just turned over, exactly.
25 Q -- for the sixty centimeters?
90ÿ
1 A Thirty centimeters.
2 Q Thirty. I'm sorry. And then we have -- the
3 next one is?
4 A The next one would be consisting of digging
5 out the soils thirty centimeters down and saving it,
6 digging the next thirty centimeters, or approximately
7 thirty centimeters down, and removing that soil and
8 taking the first thirty centimeters and putting it back
9 into the hole.
10 Q We're now at the same height there used to
11 be --
12 A No. We're thirty centimeters below. You
13 took -- you started off and dug out the first
14 thirty centimeters --
15 Q Right.
16 A -- pulled over here and saved it. Then you
17 went down another thirty centimeters --
18 Q Oh, I'm sorry. Okay.
19 A -- took it out, and put the first
20 thirty centimeters back in again.
21 Q What was the purpose of doing that?
22 A We can't change the water level in the area;
23 so we have to change the soil level --
24 Q Right.
25 A -- to control water.
91ÿ
1 Q Why not just go down thirty and leave the
2 other thirty in place?
3 A Because the first thirty is where all the
4 surface material is that would be common to our control
5 and be common to the area that's exposed, and you can't
6 start with land that's been subsided -- or not subsided,
7 but buried for a period of time and expect it to react
8 identical to land that's above it. So we need to put it
9 back in the hole again. So we had a -- what we call our
10 "deep-water one," basically.
11 Q But it's down thirty centimeters.
12 A It's down below, and it's always flooded.
13 Then we had another one where we took and dug it up and
14 did the same routine, but the -- we added soil to it from
15 the second plot we did, the deep soil --
16 Q The deep soil, the deep thirty.
17 A -- and we added more soil again. So
18 basically it raised it up.
19 Q Thirty, more or less?
20 A Yeah, more or less. So it's a little
21 higher.
22 Q Okay.
23 A And --
24 Q It will have shallower water in the area?
25 A To a great extent, yeah. Could I see the
92ÿ
1 manual?
2 Q Which one? '90? '91?
3 A No. '92. I didn't touch this thing in
4 eight months. Yeah. Yeah. Then the last one, see, you
5 had a control. You had just a disturbed on the surface.
6 You had a water-logged by being under --
7 Q Thirty down, more or less.
8 A -- and then you had a phosphorus addition
9 where we add phosphorus to it just to see what the effect
10 would be of adding the phosphorus and increasing the
11 nutrient level in that area.
12 And those are presently running. The only
13 hassle we have up to right now is 2-B is extremely deep
14 in water.
15 Q So they're all flooded at present?
16 A Yeah.
17 Q Do the walls have a tendency to hold the
18 water higher?
19 A No. The walls can't. Their only purpose --
20 the walls are only to keep the soil from falling out or
21 adding to. It won't hold water at all.
22 Q How do they allow water to escape? Do they
23 have a hole at the end?
24 A They're two separate pieces like this
25 (indicating) that just come together and overlap, and
93ÿ
1 they're only sunk in the soil about this deep, just long
2 enough to keep the soil from falling in and out.
3 Q Do you know how long this is supposed to
4 run?
5 A No, I don't. Until we get conclusions, I
6 assume, some type of results. But there's no way of
7 knowing.
8 Q And you're going to use the natural seed
9 source that exists in the area?
10 A Whatever grows -- if disturbance causes
11 growth of plants -- this is all disturbed soil. If seed
12 source is what causes the plants to come in, there is a
13 seed source to the north of these sites. If it's --
14 Q Of both cattail and sawgrass?
15 A Of both cattail, and these are located right
16 smack in the middle of sawgrass only, and less than a
17 hundred yards away is a major cattail stand since it's
18 right just south of the of 2-B. If it's nutrients --
19 we've added nutrients to one, one of the plots.
20 Q Why would there be cattails just south of
21 the dike in 2-B?
22 A No. Our experiments are just south of that.
23 Anywhere you have --
24 Q Oh, oh.
25 A There's a canal that runs right along here.
94ÿ
1 Okay? Along that canal, anywhere along the canal fringe,
2 you've generally got cattails. And the predominant winds
3 are this way, this way, this way, and sometimes that way
4 (indicating). You've got a seed source available.
5 Q If I understand your understanding of the
6 Everglades, you would believe that you have those
7 cattails because you have deeper water in those areas?
8 A Yeah.
9 Q But not higher nutrients?
10 A No. I didn't say that.
11 Q Okay. Do you think you have higher
12 nutrients in those areas?
13 A As water levels measure down there, we
14 don't. We have background.
15 Q You mean around 2-B you have background?
16 A Yeah.
17 Q What do you believe background to be?
18 A It ranges three to ten, at times.
19 Q Three parts to a hundred parts per billion?
20 A No, no. Three parts per billion to ten
21 parts per billion.
22 Q You believe is background?
23 A Well, that's what we've measured in certain
24 spots down there. Waters can change.
25 Q Of total phosphorus, Mr. Johnson?
95ÿ
1 A You know, I don't really know. I don't
2 know. That's not my area of expertise. Sometimes it's
3 higher, depending on where you take the measurements.
4 Q Are you talking about surface-water
5 measurements?
6 A Yes.
7 Q Where have you measured for background?
8 A All those areas were not measured by me but
9 measured by Dr. Craft, by Dr. Qualls, by Dr. Richardson
10 over time, various times.
11 Q When you say "all those areas," are you
12 talking about virtually all the water conservation areas?
13 A No. I'm talking about --
14 Q 2-B?
15 A -- 2-B and certain areas of 2-A on the
16 gradient study in 2-A. And before I came on board,
17 Dr. Qualls -- or Dr. Craft and Dr. Richardson did some
18 other tests, but I don't even know where they were.
19 Q And you don't know if it's total phosphorus
20 or --
21 A I know that they're measuring for all of it,
22 but I don't know what this particular one is.
23 Q The gradient study was done before you came
24 on board?
25 A No, no. I didn't put it in.
96ÿ
1 Q It was done. Was it put in before --
2 A It wasn't my design.
3 Q -- you came?
4 A No. It was installed at the time I was
5 arriving. Probably two thirds of it had been done. I
6 assisted them, going out in helicopters and installing
7 and taking water samples over time and soil samples,
8 water and soil samples over time and plant samples.
9 Q Let me show you a hard copy reproduction of
10 a -- I believe it was a transparency shown at a recent
11 SAGE meeting. Is this the gradient study that you're
12 talking about?
13 A Yes, it is.
14 MS. PONZOLI: Maybe we should mark this for
15 identification.
16 (Johnson Exhibit 13 was marked
17 for identification by the reporter and is
18 included herewith.)
19 Q BY MS. PONZOLI: So Johnson Exhibit 13
20 reflects the gradient study you're talking about that was
21 two-thirds completed by the time you came on in May,
22 1990. Does it continue through today?
23 A I believe they ran some helicop