1 DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ADMINISTRATION
2 STATE OF FLORIDA
3
CASE NOS. 92-3038, 92-3039, 92-3040
4
5
SUGAR CANE GROWERS COOPERATIVE OF )
6 FLORIDA, et al., )
)
7 PETITIONERS, )
) VOLUME II OF II
8 v. )
)
9 SOUTH FLORIDA WATER MANAGEMENT )
DISTRICT, an Agency of the State )
10 of Florida, et al., )
)
11 RESPONDENT. )
)
12 - - - - - - - - - - - - - - - - - - x
13
150 West Flagler Street
14 Miami, Florida
October 16, 1992
15 9:00 a.m.
16
17 DEPOSITION OF PAUL LARSEN
18
19 Taken before JACKIE JOHNSON, Professional
20 Reporter and Notary Public in and for the State of
21 Florida at Large, pursuant to Notice of Taking
22 Deposition filed in the above cause.
23 - - - - - - -
24
25
Page 1
1 APPEARANCES
2
ON BEHALF OF THE PETITIONERS
3
PEEPLES, EARL & BLANK
4 One Biscayne Tower, Suite 3636
Two South Biscayne Boulevard
5 Miami, Florida 33131
BY: Mark Kobelinkski, ESQ.
6
ON BEHALF OF THE RESPONDENTS
7
US DEPARTMENT OF JUSTICE
8 ENVIRONMENT AND NATURAL RESOURCES DIVISION
GENERAL LITIGATION SECTION
9 P.O. BOX 663
Washington, DC 20044
10 BY: Geoffrey Garver, ESQ.
11
12
13
14
15
Page 2
1 Thereupon --
2 PAUL LARSEN,
3 was called as a witness and, having been first duly
4 sworn, was examined and testified as follows:
5 DIRECT EXAMINATION CONTINUED
6 BY MR. GARVER:
7 Q. Mr. Larsen, I'd like you to turn to Page 91
8 of the Supporting Document of the March 13, 1992
9 Everglades SWIM Plan. I'd like you to read from the
10 section beginning on 91 entitled History of
11 Development of Water Management in the EAA, and read
12 all the way to Page 93 until you get to recent
13 management activities.
14 A. So the entire Section II?
15 Q. Yes.
16 A. I have read it.
17 Q. Mr. Larsen, based on your studies and
18 investigation of the history of the Federal Project,
19 do you have any factual knowledge or beliefs that are
20 contrary or inconsistent with the language I just
21 asked you to read?
22 A. Let me first say, as I said yesterday, that
23 reading and commenting on material such as this in
24 the context of a deposition is not the way that I
25 would normally review this material. So, therefore,
Page 3
1 in my review of it, it's possible that other things
2 would come to mind, given proper reflection upon this
3 material. But with that, I have read it, and there
4 are some things in it that I disagree with.
5 I would, first of all state, though, that
6 this is very much of a simplification of a very long
7 period of history and that, however, as a
8 simplification, it is generally correct, with a few
9 exceptions.
10 Q. And in what respects do you disagree with
11 any statements or facts in the section I just asked
12 you to read?
13 A. Near the bottom of Page 92 it states that,
14 "Agriculture development was of secondary
15 importance."
16 It is my belief, based on the material that
17 I have read, that agricultural development was
18 essential to the cost benefit analysis that enabled
19 the product to be approved.
20 Q. What specifically that you have read or
21 reviewed led you to believe that agriculture was not
22 of secondary importance?
23 MR. KOBELINKSKI: I will object to the
24 extent that the question was asked and answered
25 yesterday on two occasions.
Page 4
1 BY MR. GARVER:
2 Q. You may answer the question.
3 A. I recall reading the cost benefit analysis,
4 and that analysis had to come out in favor of the
5 project in order for the project to proceed and,
6 thus, a prime justification for doing the project was
7 the benefits to be derived by agriculture.
8 Q. And in what document is the cost benefit
9 analysis you're referring to contained?
10 A. I don't recall at this time.
11 Q. Are there any other respects in which you
12 disagree with the section I just asked you to read?
13 A. On Page 93 at the bottom of the top
14 paragraph it states that, "The purpose of the Flood
15 Control District was to provide flood protection,
16 ensure adequate water supply, and enhance
17 environmental resources of the region."
18 That sentence is incomplete. It does not
19 stress the fact that the purpose of the system was to
20 enable agriculture to provide protection for urban
21 areas, and to provide water for environmental
22 purposes.
23 Q. Are there any other aspects of this section --
24 A. There may be, given an opportunity to read
25 it more carefully and to reflect upon it. But in
Page 5
1 general, as a simplification of the history, I
2 couldn't find anything wrong with it as a
3 simplification.
4 Q. And my question now is going to be: Are
5 there any other aspects of this section with which
6 you disagree?
7 MR. GARVIS: Just for keeping the Record
8 clean, please let me finish my questions before
9 you answer them. Otherwise, they won't appear
10 right on the Record. Excuse me.
11 THE WITNESS: I thought you were done with
12 your question.
13 MR. GARVIS: I understand that you
14 understood or believed you understood where I
15 was going with my question, but on the Record,
16 it was not a complete question.
17 BY MR. GARVER:
18 Q. Mr. Larsen, I'd now like you to turn to
19 page 97 of the Supporting Information Document.
20 Please read the section entitled Hydrology and Water
21 Management Features that begins on Page 97 and ends
22 on Page 99 at the next subheading Soils.
23 A. I have read the material.
24 Q. Mr. Larsen, based on your studies and
25 investigation of the history of the Federal Project,
Page 6
1 do you have any factual knowledge or beliefs that are
2 inconsistent or contrary to any statements or
3 language in the section I just asked you to read?
4 A. With the same reservation I made in the
5 prior response about reading and evaluating these
6 materials in the context of a deposition, I find that
7 this section is a simplification of a complex
8 situation.
9 However, with a couple of exceptions, I
10 find that as a simplification, this section of
11 Hydrology on Water Management Features which deals
12 specifically with a paragraph that deals with the EAA
13 is generally not incorrect.
14 Q. In what respect do you disagree with any of
15 the statements or language in the section I just
16 asked you to read?
17 A. In the second paragraph it states that,
18 "The canals have four functions, to provide flood
19 protection and drainage, to supply irrigation water
20 to the EAA, and for municipal water supply for the
21 City of West Palm Beach, to make regulatory releases
22 from Lake Okeechobee, and to transfer water from the
23 storage in Lake Okeechobee to water in Conversation
24 Areas."
25 That is correct. However, what it leaves
Page 7
1 out is the function of delivering excess drainage
2 from the EAA to the Water Conservation Areas. In
3 other words, the EAA is in that supplier of water to
4 the Conservation Areas, and that function is that
5 supply of water is delivered by the canals mentioned
6 here, and that function is not mentioned in this list
7 in the SWIM Plan.
8 Q. On what do you base your knowledge or
9 belief that the EAA is in that supplier of water?
10 A. Based on my understanding of rainfall and
11 evapotranspiration from agricultural lands.
12 Q. And are there any specific documents or
13 other materials on which you base that belief or
14 knowledge?
15 A. They are contained within, among other
16 locations, a presentation given by Doctor Dale Bocher
17 at the Everglades Coalition meeting in January of
18 1992.
19 Q. Are you aware of any document or other
20 material that concludes that the EAA is not in that
21 supplier of water?
22 A. There may be other documents. I can't
23 recall them at this time.
24 Q. Did you understand the question?
25 MR. GARVER: Could you read it back.
Page 8
1 (The question referred to was
2 thereupon read by the reporter as
3 above recorded.)
4 BY MR. GARVER:
5 Q. I was not asking for additional documents,
6 other than the Dale Bocher report.
7 My question is: Whether you were aware of
8 any documents or materials concluding that the EAA is
9 not in that supplier of water?
10 A. I am sorry. Not at this time.
11 Q. Are there any other aspects of the language
12 I asked you to read on Page 97 through 99 of the
13 Supporting Information Document with which you
14 disagree?
15 A. At the top of Page 99, it lists a series of
16 reasons that farmers are allowed to pump more than
17 three-quarters of an inch of runoff per day, and Item
18 1 says, "Not all lands in the basin would be in
19 agricultural production at one time. Two, that some
20 of the land would be planted to water tolerant crops,
21 and three, that the canals in the basin have some
22 storage capacity."
23 That list is correct. However, they leave
24 out the fact that another reason is that the EAA is
25 so large that rainfall is likely to not be uniform,
Page 9
1 and that it may rain in one part of the EAA and not
2 in another. Thus, the farmers in that area can pump
3 more than three-quarters of an inch a day but not
4 affect the overall agricultural area.
5 MR. KOBELINKSKI: Counsel, was your
6 question also directed to having him review
7 Figure 14, 15 and 16 on Page 113?
8 MR. GARVER: Yes. My question on this
9 section, and on any section I ask Mr. Larsen to
10 read, should be understood to include any
11 figures that are referenced in the language.
12 MR. KOBELINKSKI: Again, I guess my
13 question is, Counsel, to the extent you're
14 talking about figures that give numbers and
15 statistical information, for instance, as Figure
16 16 does from 1955 to 1979, is your question, did
17 he verify that data, itself, from his memory or
18 is it just generally whether he is aware of
19 anything that is incorrect with it? Just so I
20 understand.
21 MR. GARVER: Well, my question is whether
22 based on Mr. Larsen's studies and investigation
23 of the history of the Federal Project he has any
24 knowledge or beliefs that are inconsistent or
25 contrary to any statements or language in the
Page 10
1 section I am asking him to read.
2 THE WITNESS: Based on that, I would say
3 that Figure 16 would require more time to
4 evaluate than is available here today.
5 BY MR. GARVER:
6 Q. What would you need to do to evaluate
7 Figure 16?
8 A. I would need more time to review it and
9 understand it fully.
10 MR. KOBELINKSKI: Counsel, I guess I will
11 object to the extent that you're asking this
12 witness to look at a graph that gives 25 years
13 of statistical information and confirm whether
14 or not it's accurate without, you know, giving
15 him the time to reference materials that, for
16 instance, were used to make the graph.
17 I don't know that there's anyone who could
18 go ahead and look at a 25 year graph on
19 statistical information and determine from
20 memory that, yes, all the numbers in that are
21 accurate.
22 I will object to forcing him to verify the
23 accuracy just based upon his memory in the
24 deposition.
25 MR. GARVER: Mr. Kobelinkski, this
Page 11
1 proceeding as, you know, is to determine whether
2 the Everglades SWIM Plan is valid.
3 I am simply trying to discover any evidence
4 that Mr. Larsen is aware of that would
5 contradict statements in this lawyer.
6 MR. KOBELINKSKI: The graph is not a
7 statement.
8 He can't, from memory, look at 25 years of
9 statistical information and say all those
10 numbers are correct. I mean, he can't do that
11 just sitting here. I don't think anyone could
12 do that from memory, look at that stastical
13 numbers from a 25 year period and say, you know,
14 in 1961, that one is correct, and in 1958 that
15 one is correct.
16 I don't think that's appropriate for, you
17 know, a deposition question without giving the
18 witness an opportunity to go ahead and then look
19 at reference materials or the statistical
20 information upon which the graph was made to
21 confirm whether those numbers are correct.
22 MR. GARVER: Well, I will say that this
23 deposition obviously is going to continue past
24 today. The United States may have or any of the
25 other parties may have additional questions
Page 12
1 regarding Mr. Larsen's factual knowledge
2 regarding the history of the Federal Project or
3 any other factual topic, and in the meantime,
4 perhaps, Mr. Larsen will have had more
5 opportunity to review the subject of these
6 proceedings, this SWIM Plan, and I understand
7 that Mr. Larsen may not have done that at this
8 point, but as I said, we will reconvene.
9 MR. KOBELINKSKI: Before we go on, I am not
10 saying that Mr. Larsen has or has not done any
11 particular study of a particular graph.
12 Mr. Larsen has been produced yesterday and
13 today for his deposition on factual background
14 of the Federal Project. In that testimony, he
15 can only tell you what he knows, and if he does
16 not have sufficient data in his memory to
17 confirm or disaffirm a particular graph, he will
18 tell you. So as far as this deposition going
19 on, he was produced -- you set him at the end of
20 your period. You estimated two days. Yesterday
21 you told us that you believe you would be
22 finished around two or three o'clock or one or
23 two o'clock.
24 He will be deposed, again, with regard to
25 his expert testimony, but there are no parties
Page 13
1 who decide to attend this matter, and as far as
2 when you're complete with asking questions with
3 regard to his factual testimony with regard to
4 the Federal Project, that will be the end of
5 that portion of the deposition. We are not
6 going to revisit all this when we produce him as
7 an expert witness. We are not going to go
8 through the SWIM Plan and ask him about factual
9 matters related to the Project, except as far as
10 they pertain to his expert testimony, and he is
11 relying upon that.
12 MR. GARVER: Well, Mr. Kobelinkski, I think
13 you're wrong about that, especially since you
14 have improperly restricted the scope of this
15 inquiry. Well, we will pursue that as we need
16 to.
17 MR. KOBELINKSKI: I am just letting you
18 know today and putting you on notice today that
19 when he is deposed again, we will object to your
20 going over the same testimony with him, unless
21 he identifies certain portions of it as portions
22 he is relying upon as a basis for his expert
23 opinion, and that's a different matter.
24 You have one crack at this witness on this
25 subject matter. You don't have multiple cracks
Page 14
1 at the witness. We do not have multiple cracks
2 of your witness on the exact same topic matter.
3 If, for instance, you say other parties may
4 have a question, the District, the DER and
5 others have decided not to attend this
6 deposition. They are not going to set this
7 witness down on fact testimony just because they
8 decide not to attend. This is your shot.
9 MR. KOBELINKSKI: Mr. Garver, you have
10 restricted and limited in ways the United States --
11 MR. GARVER: Excuse me, Mr. Kobelinkski. I
12 am not done. We will not agree to finishing up
13 any aspect of this deposition whatsoever today.
14 MR. KOBELINKSKI: I believe a motion is
15 appropriate on your part then. I am just
16 putting you on notice.
17 MR. GARVER: We will do that when you
18 instruct the witness not to answer a question,
19 Mr. Kobelinkski.
20 MR. KOBELINKSKI: Be put on notice that the
21 next deposition will be on his expert testimony,
22 only. I will be instructing him not to respond.
23 Excuse me. I haven't finished. I am just
24 putting you on notice that you can't say that
25 there's any surprise or chagrin on your part.
Page 15
1 He will not be redeposed on areas that you have
2 covered, unless he identifies them as a basis
3 for formulating his final opinion. That's all.
4 BY MR. GARVER:
5 Q. Mr. Larsen, we were discussing Section 6 of
6 Pages 97 and 99 and the figures that are referenced
7 in that section.
8 Based on your studies and investigation of
9 the Federal Project, are there any other aspects of
10 that section or the figures in it that are
11 inconsistent or contrary to your factual knowledge or
12 beliefs?
13 A. You did say any other besides what I have
14 already?
15 Q. Yes. That's right.
16 A. Again, with the reservation that this
17 section is an oversimplification, with those
18 reservations and, also, with the understanding that
19 in reading this in the context of this deposition, I
20 could have missed something, I would say that I don't
21 see that this section is in your report.
22 Q. Mr. Larsen, turning back to Page 93, the
23 last paragraph before the section headed Recent
24 Management Activities. The last three sentences
25 there state in 1961 WCA-2 was divided by Levee L --
Page 16
1 A. Excuse me. I don't see where you're at.
2 Q. That's on Page 93, the first full paragraph
3 on the page.
4 A. Fine. I was looking at the bottom of the
5 page.
6 Q. "In 1961, WCA-2 was divided by levee L-35B
7 into WCA-2A and WCA-2B to prevent seepage losses to
8 the system. WCA3 was enclosed by levees in 1967 with
9 the exception of a 7.1 mile strip along the border of
10 the Big Cypress. WCA-3 was divided into WCA-3A and
11 WCA-3B by levees L-67A in 1962 in an effort to reduce
12 seepage losses from the system."
13 Based on your studies and investigation of
14 the history of the Federal Project, do you have any
15 factual knowledge as to whether the construction of
16 the levees referenced in the language I just read was
17 successful in preventing or reducing seepage losses
18 from the system?
19 A. It is my understanding that seepage losses
20 remain a substantial component of the water budget
21 for the Water Conservation Areas, even with the
22 construction of Conservation Area 2B and the
23 construction of Conservation Area 3B.
24 Q. And are there any particular documents,
25 materials or other information on which you support
Page 17
1 that belief?
2 A. There are several documents.
3 Among them are US Geological Survey
4 publications. South Florida Water Management
5 District publications and even the recent draft Lower
6 East Coast Planning Document appendices which show
7 that these seepage losses from the Conservation Areas
8 remain large and substantial.
9 Q. I'd like you to turn now to Page 100 of the
10 Supporting Information Document. Please read the
11 second full paragraph on that page which begins with
12 the words subsidence rates.
13 A. I have read that.
14 Q. Based on your studies and investigation of
15 the Federal Project, do you have any factual
16 knowledge or beliefs that are contrary or
17 inconsistent with the language I just asked you to
18 read?
19 A. This paragraph is very much of a
20 simplification of the issue of seepage -- I am sorry --
21 of the issue of subsidence, and in addition, I have
22 read much of the document concerning seepage
23 subsidence. Although I can't recall which documents
24 they are, I am also aware of management practices
25 that reduced seepage subsidence.
Page 18
1 Based on that, I don't necessarily agree
2 with the conclusions of this paragraph.
3 Q. What specific facts are you aware of that
4 are inconsistent with conclusions in this paragraph?
5 A. It's my recollection of documents that I
6 have read, but I can't recall exactly which documents
7 they were and recollection of presentations that I
8 have heard on the issue of subsidence. But, again, I
9 can't give you a bibliography and a time and a place
10 or who it was by.
11 Q. What specific conclusions within the
12 paragraph I just asked you to read do you disagree
13 with?
14 MR. KOBELINKSKI: I will object, to the
15 extent that you are calling for an opinion on
16 his part as to agreement or disagreement as to
17 which estimates are obviously just expert
18 opinions in this instance, and I will not allow
19 him to testify with regard to his opinion on
20 other expert testimony or opinions.
21 MR. GARVER: I am not asking for your
22 expert opinion, Mr. Larsen.
23 MR. KOBELINKSKI: Could you then restate
24 your question so it's not asking for his
25 opinion. He is not here as an opinion witness.
Page 19
1 MR. GARVER: I am sorry.
2 Could you read back my question back,
3 please.
4 (The question referred to was
5 thereupon read by the reporter as
6 above recorded.)
7 MR. KOBELINKSKI: Again, same objection.
8 He is not here to agree or disagree with expert
9 opinions. He is here to give his opinion on
10 someone else's opinion. He is here with regard
11 to fact.
12 BY MR. GARVER:
13 Q. What aspect of the paragraph I just asked
14 you to read are you aware of facts that are
15 inconsistent or contrary -- with what aspects of the
16 language I just asked you to read are you aware of
17 contrary or inconsistent facts?
18 A. I recollect -- again, I don't recall the
19 source, but I recollect information that indicates
20 that the EAA will be viable for a substantially
21 longer period of time than indicated here.
22 However, since it's only a recollection,
23 therefore, I question this. I don't know if this
24 material is right or if it's wrong. It could be
25 right. It could be wrong, but I question it.
Page 20
1 Q. But your testimony is that you have no
2 specific recollection of any other facts, opinions of
3 other people that you have come across from your
4 investigation of the history of the Federal Project --
5 MR. KOBELINKSKI: Did you finish the
6 question. I wasn't sure.
7 BY MR. GARVER:
8 Q. -- that are inconsistent or contrary to
9 materials in that paragraph?
10 MR. KOBELINKSKI: Again, I will object to a
11 mischaracterization of his testimony since you
12 started the question, as you are testifying,
13 that you don't recall, etcetera. So I will
14 object to your mischaracterization of his
15 testimony. I object to the form of that
16 question.
17 MR. GARVER: I asked him whether that was
18 his testimony, Mr. Kobelinski. What's the
19 problem with that?
20 MR. KOBELINKSKI: And I object to your
21 mischaracterization of his testimony. I object
22 to the form of the question. He has testified
23 to what he has testified to. I object to your
24 mischaracterizing it and repeating it in your
25 fashion. I object to the form of that question.
Page 21
1 BY MR. GARVER:
2 Q. You may answer my question, Mr. Larsen.
3 A. I believe that my earlier response answered
4 your second question.
5 Q. Did I understand you correctly that you
6 have no specific recollection of any facts or
7 opinions of other people that are inconsistent with
8 the conclusions in this or statements in this
9 paragraph?
10 MR. KOBELINKSKI: I will object to the
11 mischaracterization of a sentence in the form of
12 a question.
13 You can go ahead.
14 THE WITNESS: I think you need to define
15 what you mean by specific, because I definitely
16 recall seeing information that disagrees with
17 this. However, I can't remember exactly where
18 or when that was or who said it or where I read
19 it.
20 BY MR. GARVER:
21 Q. I'd like you to turn now to Page 111, and
22 please read all of Page 111 and any figures that are
23 referenced in there or included by reference.
24 A. I have read the section.
25 MR. KOBELINKSKI: Counsel, this references
Page 22
1 remote sensing mapping data and makes
2 conclusions with regard to it.
3 Since you're asking him to confirm all
4 references, do you have copies of the remote
5 sensing mapping data referenced in the third
6 full paragraph in approximately the middle?
7 MR. GARVER: No, I do not, Mr. Kobelinkski.
8 MR. KOBELINKSKI: So you do not want him to
9 confirm what that remote sensing mapping data
10 is?
11 MR. GARVER: Have I asked a question with
12 respect to that, Mr. Kobelinkski?
13 MR. KOBELINKSKI: We had a discussion
14 previously. You said all of your questions are
15 intended to include matters that are referenced
16 within paragraphs. That's why I am asking.
17 MR. GARVER: Oh, I don't believe I ever
18 said that, did I?
19 MR. KOBELINKSKI: Yes. This is referencing
20 mapping sensing data.
21 MR. GARVER: I said figures.
22 MR. KOBELINKSKI: They also have tables
23 that are referenced. You don't want tables. I
24 mean, tables and figures and mapping are
25 referenced throughout this entire --
Page 23
1 MR. GARVER: Figures. I am sorry.
2 MR. KOBELINKSKI: I am just trying to find
3 out exactly what it is you're asking the witness
4 to confirm.
5 For instance, there is Table 11. There are
6 tables throughout this. There are also other
7 things referenced here. I am trying to find out
8 exactly what is being questioned of the witness.
9 MR. GARVER: I am including figures and
10 tables that are referenced in there. I don't
11 believe I have ever asked the witness to confirm
12 anything, have I?
13 MR. KOBELINKSKI: To confirm -- I didn't
14 hear the end of your question.
15 MR. GARVER: To confirm anything.
16 MR. KOBELINKSKI: You have asked him to
17 confirm many things throughout this deposition,
18 sir.
19 MR. GARVER: I mean, I didn't use the word
20 confirm.
21 THE WITNESS: The answer to your question
22 is no, I do not have the remote sensing mapping
23 data.
24 MR. KOBELINKSKI: Yes, you did.
25 Please read the question back.
Page 24
1 (The question referred to was
2 thereupon read by the reporter as
3 above recorded.)
4 BY MR. GARVER:
5 Q. Mr. Larsen, are you still reviewing this
6 section I asked you to read?
7 A. Yes, I am.
8 Q. Please take your time.
9 A. I have read the material on Page 111.
10 Q. Mr. Larsen, based on your studies and
11 investigation of the history of the Federal Project,
12 do you have any factual knowledge or beliefs that are
13 contrary or inconsistent with any of the material in
14 that section?
15 A. Could you read the question, again, please?
16 (The question referred to was
17 thereupon read by the reporter as
18 above recorded.)
19 MR. KOBELINKSKI: Again, then I will object
20 to the question to the extent you're asking for
21 any fact or information that the witness has
22 contrary to facts stated in this section.
23 However, this section states conclusions
24 based upon remote sensing mapping data that is
25 not supplied to Mr. Larsen to review, and as
Page 25
1 such, I don't know how he can state whether or
2 not he does have facts that are contrary to the
3 mapping data and conclusions drawn from that
4 mapping data when he has not had a chance to
5 review the mapping data.
6 BY MR. GARVER:
7 Q. Mr. Larsen, you may answer the question.
8 A. I have some reservations about the material
9 in this Page 111.
10 Q. What reservations do you have about the
11 material on Page 111?
12 A. At the middle of the third paragraph it
13 says, "Pre-drainage sheet flow patterns within WCA-1
14 run primarily from north to south in the northern end
15 of the Refuge, curving to a northeast to southwest
16 direction in the south end, as reflected in the
17 orientation of present day tree island communities."
18 There are other maps of topography which
19 indicate that the Conservation Area 1, these portions
20 of it were a mounded area, and I even believe that
21 such a map is shown in the SWIM Plan itself at Page
22 42.
23 Although this map shows flow lines and
24 topography, other maps that I have seen indicate that
25 there is a high area with an elevation of
Page 26
1 approximately 16 feet, which would indicate that the
2 flows are a result of rainfall or that the water in
3 that area is as a result of rainfall, rather than
4 from input via sheet flow. It's a fine point.
5 There may be times when the area was
6 subject to sheet flow from the north, but that
7 topographic map would lead me to question this
8 conclusion.
9 Q. You stated in your answer "this map."
10 Are you referring to the map on Page 42 of
11 the SWIM Plan?
12 A. Yeah.
13 Upon review of Page 42, it does not show
14 the features that I recall on a topographic map which
15 was included in the 1948 Soil Conservation Service
16 report. Again, this is by recall, but I do recall
17 that that map shows the Conservation Area 1 to be
18 high ground, higher than surrounding areas, portions
19 of it, anyway, and that would indicate that the
20 hydroperiod was controlled by rainfall rather than by
21 sheet flow.
22 Q. And in your prior answer, you also used the
23 phrase "that topographic map."
24 When you stated that, were you referring to
25 the topographic map that's included in the 1948 Soil
Page 27
1 Conservation Service report?
2 A. That's correct.
3 Q. Based on your studies and investigation of
4 the Federal Project, are there any other aspects of
5 the information on page or material on Page 111 that
6 are contrary and inconsistent with your factual
7 knowledge?
8 A. In the same third paragraph towards the
9 bottom it mentions a matrix of wet prairies, sawgrass
10 ridges and aquatic slough communities.
11 I have never seen the term sawgrass ridges
12 used before. I don't understand what it means. It
13 would indicate to me that the sawgrass is located in
14 land that is higher than other lands. That may not
15 be the case, but I question the use of the word
16 sawgrass ridges.
17 Q. You question that phrase because -- do you
18 question that phrase because you believe it is
19 inaccurate?
20 A. I question it, because I don't understand
21 what they mean by a sawgrass ridge.
22 If, however, they do mean that the sawgrass
23 is up on some sort of high ground, then I think I
24 would disagree with there being sawgrass ridges.
25 Q. What is the basis for your disagreement of
Page 28
1 the phrase sawgrass ridges if it means areas that are
2 higher in elevation?
3 A. I have spent time in other portions of the
4 Everglades, and I have never seen a matrix of
5 vegetation where the sawgrass was apparently on
6 higher ground. However, I haven't been able to go
7 into this area to see for myself. There may be
8 ridges there, but they would be unusual features and
9 not consistent with the rest of the Everglades.
10 Q. Are there any other aspects of the material
11 on Page 111 that are contrary or inconsistent with
12 your factual knowledge?
13 A. The material that you asked me to review
14 does not contain reference to the unique character of
15 the soils in Conservation Area 1. The soils of
16 Conservation Area 1, based on my reading of the 1948
17 Soils Report, are substantially different than the
18 soils in the EAA, and those soils are a component of
19 the title here Description of WCA Boundaries and
20 Hydrologic Features, and in my opinion, the unique
21 character of soils in Conservation Area 1 should be
22 included.
23 Q. How are the soils in Water Conservation
24 Area 1 different than the soils in the EAA?
25 A. The 1948 Soils Report characterizes the
Page 29
1 soils in the Loxahatchee area as Loxahatchee peat,
2 characterizes the soils in the Everglades
3 Agricultural Area as Everglades peat. Those two
4 types of peat have different characteristics, in
5 terms of their subsidence potential, organic content,
6 etcetera.
7 It's my understanding that the reason that
8 the Conservation Area 1 was not included in lands
9 which were to be subject to agriculture was because
10 the soils in the EAA were eminently suited for
11 agriculture, while the soils in Conservation Area 1
12 are totally unsuited for agriculture.
13 Given that, there's obviously a substantial
14 difference in the soils between the EAA and the
15 Loxahatchee, and that difference in their
16 characterics should be included in this section.
17 Q. Are there any other aspects of the material
18 on Page 111 that are inconsistent or contrary to your
19 factual knowledge?
20 A. Again, on this reading, for the purpose is
21 of this deposition, there's a definition of the area
22 of Conservation Area 1 contained in the second
23 paragraph, I believe.
24 Then the last sentence, it says, "The
25 Refuge also contains a 400-acre cypress swamp." That
Page 30
1 area is outside of the levees. So I think that this
2 section sort of intersperses the Conservation Area 1
3 with the Refuge and that the boundaries of the Refuge
4 are not necessarily coincident with the boundaries of
5 the Conservation Area.
6 Since I have been there on several
7 occasions, I know that the cypress swamp mentioned in
8 the last sentence here is outside of the boundaries
9 of Conservation Area 1.
10 Q. Are there any other aspects of the material
11 on Page 111 that are inconsistent or contrary to your
12 factual knowledge?
13 A. Yes.
14 In the last paragraph, it says that, "WCA-1
15 is a huge freshwater storage area," indicating a
16 purpose for the Conservation Area is for the storage
17 of water.
18 Then the last sentence before you get to
19 the last says, "Current Management objectives of the
20 Refuge are as listed there."
21 I think it should be important to show that
22 the management objectives of the Refuge may conflict
23 with other management objectives of the Water
24 Conservation Area that may be down further on in this
25 section.
Page 31
1 I don't know, but it seems that the way
2 this reads is that this list -- since the Refuge is
3 largely coincident with the Water Conservation Area,
4 that this list then should include the freshwater
5 storage area concepts and other concepts associated
6 with the purpose of the Water Conservation Area, as
7 opposed possibly to the purpose of the Refuge and
8 that it should show that the management needs to
9 consider many factors in addition to those four that
10 are listed.
11 Q. Are there any management objectives, in
12 particular, you're referring to?
13 A. The first one that comes to mind is simply
14 the one that says it's a part of a huge freshwater
15 storage area that receives storm pumpage from the
16 EAA. There may be others, but they don't come to
17 mind at this moment.
18 Q. Are there any other aspects of the material
19 on Page 111 that are contrary or inconsistent with
20 your factual knowledge?
21 A. Yes.
22 This section is a simplification of a
23 complex issue, and I need to point out that it would
24 take much more than a page to describe the hydrologic
25 features of the Water Conservation Area 1, and with
Page 32
1 all of the reservations that I have listed, I would
2 say that this section is basically inadequate.
3 Q. Are there any considerations that you
4 haven't already mentioned with respect to this
5 material on Page 111?
6 A. There may be considerations that I haven't
7 thought of in the context of this deposition, but at
8 this moment, the list of problems with this section
9 is as complete as I can produce, without the benefit
10 of a list and reflection and possibly other reference
11 materials.
12 Q. And that includes problems related to the
13 inadequacy you find with this material?
14 A. As I said, I have listed the things that
15 come to mind upon this reading. That list is
16 sufficient to make me say that this page is
17 inadequate. There may be other things that I would
18 think of if I had more time to think about it, and I
19 would go through the normal procedure of reviewing
20 something like this, other than in the context of a
21 deposition.
22 Q. What would be your normal procedure for
23 reviewing material like this?
24 A. I would read it very carefully. I would
25 prepare a list of things that I questioned. I would
Page 33
1 probably use reference material to verify those
2 questions, and I would probably read further in this
3 document to see what else it says about Water
4 Conservation Area 1, 'cause I notice on the next page
5 there's additional information.
6 I think that the process that I have just
7 outlined is pretty much what anyone would do in terms
8 of reviewing this, and they would not do it in the
9 context of answering questions at a deposition with a
10 court reporter typing away and people looking over my
11 shoulder.
12 Q. Am I correct in assuming that you have not
13 applied the procedures you just described to review
14 the Everglades SWIM Plan, March 13, 1992 Everglades
15 SWIM Plan?
16 MR. KOBELINKSKI: I will object to the
17 question to the extent that you are asking for
18 attorney work product.
19 This gentleman, Mr. Larsen, has stated that
20 he has made comments with regard to the document
21 to attorneys, and what he has done in that
22 regard is privileged, but other than that, the
23 witness may answer the question without
24 divulging any information with regard to what he
25 has done for counsel.
Page 34
1 THE WITNESS: As I mentioned, I have read
2 this. It's been some time ago. I don't recall
3 doing such an analysis of this particular page.
4 I may have done such an analysis for other
5 pages.
6 BY MR. GARVER:
7 Q. Have you done such an analysis for any
8 portion of the March 13, 1992 Everglades SWIM Plan?
9 MR. KOBELINKSKI: Same objection, same
10 instruction. The witness is not to divulge any
11 type of work he has done for counsel in this
12 matter.
13 If the witness has done it for others or
14 himself, he is free to divulge that, but he may
15 not divulge what he has done for counsel.
16 THE WITNESS: Any review that I have done
17 of this document has been for counsel.
18 MR. GARVER: Mr. Kobelinkski, it's your
19 contention that the mere fact of whether
20 Mr. Larsen applied the review procedures he just
21 described, the mere fact that he did those --
22 whether or not it's for -- I mean, if it was for
23 counsel, is privileged information?
24 MR. KOBELINKSKI: I am stating that if a
25 party in a proceeding retains an expert to go
Page 35
1 ahead and review and provide opinions as to
2 particular matters or scientific matters within
3 a document, that is privileged information.
4 Absolutely, I do maintain that it's privileged
5 information.
6 MR. GARVER: I don't think it would be
7 privileged to know whether or not Mr. Larsen
8 reviewed this document.
9 MR. KOBELINKSKI: He has stated he reviewed
10 the document or other copies of the document.
11 He has stated that he has not done the type of
12 study that he referenced a few moments ago with
13 regard to this page. You have asked him then
14 well what particular portions have you done
15 in-depth research on, and I am stating that if
16 we retain him as an expert to do any type of
17 in-depth research as to a particular portion of
18 the document, you are not entitled to go ahead
19 and find out what those portions are.
20 MR. GARVER: You are a master at putting
21 words in my mouth, Mr. Kobelinkski. I don't
22 know if you do it intentionally or you just
23 forget what I have said.
24 MR. KOBELINKSKI: I appreciate the
25 compliment.
Page 36
1 BY MR. GARVER:
2 Q. Mr. Larsen, I'd like you to turn now to
3 Page 112 of the Supporting Information Document. I'd
4 like you to read the section in the middle of the
5 page entitled Hydrology and Water Control Features.
6 Read that entire section which ends on Page 113 at
7 the heading Water Conservation 2A.
8 A. I have read the requested material.
9 Q. Based on your studies and investigation of
10 the history of the Federal Project, is there any
11 material in the section I just asked you to read that
12 is inconsistent or contrary to your factual
13 knowledge?
14 A. This material is a simplification of a
15 complex issue, and with one reservation, I would say
16 that the material is not wrong.
17 Q. What is the one reservation you have with
18 respect to this material?
19 A. I don't have the ability here to verify the
20 water budget information in the first paragraph, and
21 so I don't know if it is right or wrong.
22 Q. I'd like you to turn now to Page 113. I'd
23 like you to read the entire section entitled Water
24 Conservation 2A beginning on Page 113 and ending on
25 Page 114 at the heading Water Conservation Area 3.
Page 37
1 A. I have read the material.
2 Q. Based on your studies and investigation of
3 the history of the Federal Project, do you have or
4 are you aware of any factual information that is
5 contrary or inconsistent with the material I just
6 asked you to read?
7 A. This section is simplification of a complex
8 issue, and I do have certain reservations and believe
9 that certain important facts are omitted from this
10 section.
11 Q. What important facts do you believe are
12 omitted from this section?
13 A. This is part of a section on the
14 Conservation Areas. It discusses boundaries and
15 hydrologic features and the Loxahatchee peat that I
16 mentioned earlier in the questions concerning
17 Conservation Area 1 extending down into Conservation
18 Area 2. That Loxahatchee peat is, as I mentioned, a
19 soil type which was deemed unsuitable for
20 agriculture, which is highly suspectible to
21 subsidence, and that existence of that particular
22 soil in Conservation Area 2 has been not included in
23 this section, and I believe that that soil is
24 relevant to a discussion of hydrologic features.
25 Q. Have you finished your answer, Mr. Larsen?
Page 38
1 A. Yes, I have.
2 Q. Why do you believe a discussion of soil is
3 relevant to the discussion of hydrologic features?
4 A. The Loxahatchee peat is located south of
5 the Hillsboro Canal, and in earlier times, the
6 Hillsboro Canal resulted in severe drying of these
7 areas in the times before the project was
8 implemented, and it's likely that the soils in the
9 Loxahatchee, peat soils have subsided.
10 Q. When you say the Hillsboro Canal has
11 resulted in the drying of these areas, what areas, in
12 particular, are you referring to?
13 A. The areas of Loxahatchee peat located,
14 both, north and south of the Hillsboro Canal.
15 Q. And why would a discussion of the
16 subsidence of the Loxahatchee peat be relevant to a
17 discussion of hydrologic features?
18 A. If the area has subsided, then water levels
19 in the vicinity of the canal would be deeper simply
20 because the soil surface is now lower than it was
21 historically.
22 Q. What information, document or materials
23 supports your belief that the Loxahatchee peat may
24 have dried and subsided in the vicinity of the
25 Hillsboro Canal or as a result of the Hillsboro
Page 39
1 Canal?
2 A. Materials that I recall reading in the
3 Parker book, descriptions of the Loxahatchee peat
4 that appear in the Soil Conservation Service 1948
5 report which says that the soil will shrink to
6 approximately 25 percent of its original volume upon
7 drying, and other statements about the effect of
8 canals, the pre-project canals creating overdrying
9 conditions during drought periods.
10 Q. Are you aware of any comparisons of the
11 topography of the areas of Loxahatchee peat which you
12 believe may have dried and subsided that compare the
13 situation prior to drainage activities in that area
14 and subsequent to drainage activities?
15 A. I am not aware of topographic surveys that
16 would confirm this, and of course, it's very unlikely
17 that topographic surveys would have been made prior
18 to, you know, the effect taking place.
19 Q. Are there any other aspects of the material
20 I just asked you to read on Pages 113 and 114 that
21 are contrary or inconsistent with factual knowledge
22 you are aware of or have?
23 A. Yes.
24 Q. And what are those other aspects?
25 A. Again, in the first paragraph it states
Page 40
1 that, "The regional water management practices
2 significantly altered the marsh's natural hydroperiod
3 by increasing water depth for long periods of time
4 causing loss of tree islands in wet prairie
5 communities."
6 In my opinion, the extent or duration of
7 what he means by a long period of time should be
8 indicated.
9 Q. Are you aware of any documents, materials
10 or other information that supports the view that
11 increased water depth for some period of time caused
12 loss of tree islands in wet prairie communities in
13 Water Conservation Areas?
14 A. I believe there are statements to that
15 effect in the SWIM Plan. I can't remember exactly
16 what page they are on. There are statements to that
17 effect in other documents that I have reviewed. At
18 this point, I can't remember exactly where they were
19 or what document they were in. So that this is
20 information that I have read, but I can't give you a
21 bibliographic reference for it.
22 Q. Why do you believe it would be important to
23 define long periods of time in more detail?
24 A. I would like to know what he means, whether
25 it's one year, five years, ten years, fifteen years,
Page 41
1 because there may be other impacts associated with
2 that long-term flooding, such as changes in the soil
3 that would be important to know in terms of
4 hydrologic features.
5 Q. Are there any other aspects of the material
6 on Page 113 and 114 that I just asked you to read
7 that are inconsistent or contrary to factual
8 knowledge you have or are aware of?
9 A. The section references Figure 16, and as I
10 mentioned earlier, it would take me more time than is
11 available for this deposition to review the
12 background for Figure 16.
13 Q. Are there any other aspects of the material
14 I just asked you to read on Pages 113 and 114 that
15 are contrary or inconsistent with your factual
16 knowledge that you are aware of?
17 A. I have reservations concerning the
18 statistics in the last paragraph where it makes
19 statements about the percent of water inflow. It
20 makes statements about the quantities of phosphorus.
21 I, without reviewing other materials, could
22 not determine whether those numbers are correct or
23 incorrect. So my comment is in the form of a
24 reservation about the statistics and the numbers in
25 that paragraph.
Page 42
1 Q. What additional information would you need
2 to review to remove those reservations?
3 A. Data associated with phosphorus levels and
4 water flows would be appropriate for reviewing
5 loading and the percentage of inflow water. It would
6 also require a review of rainfall records, and such a
7 review is beyond the scope of my review of this
8 paragraph in the context of this deposition.
9 Q. Are there any other aspects of the section
10 I just asked you to read on Page 113 and 114 of the
11 Supporting Information Document that are contrary or
12 inconsistent with factual information you have or are
13 aware of?
14 A. In my opinion, this section uses words such
15 as massive regional flood control. My question would
16 be, massive relative to what?
17 It uses terms such as nutrient enriched. I
18 would assume that that term should be defined, and I
19 would believe that the degree of mineralization of
20 canal inflow waters should also be defined in this
21 section.
22 Q. Are there any other aspects of the material
23 on Pages 113 and 114 of the Supporting Information
24 Document that are inconsistent or contrary to factual
25 information you have or are aware of?
Page 43
1 A. There may be, if I was reading this other
2 than in the context of a deposition and given more
3 time to reflect. But based on this reading here
4 today and given the reservations that I have already
5 mentioned, I don't see additional factors of this
6 section that are wrong.
7 Q. I'd like you to now turn to Page 114 of the
8 Supporting Information Document, and I'd like you to
9 read the entire section that begins on Page 114 and
10 ends on Page 117 at the heading Regulation Schedules.
11 A. I have read the material.
12 Q. Mr. Larsen, based on your studies and
13 investigation of the history of the Federal Project,
14 do you have or are you aware of any factual
15 information that is inconsistent or contrary to any
16 of the material in this section I just asked you to
17 read?
18 A. Yes, I do.
19 Q. And what aspects of the material I asked
20 you to read are inconsistent or contrary to factual
21 information or knowledge you have or are aware of?
22 A. This section is part of one dealing with
23 hydrologic features, and I realize that, both, this
24 section and the preceding sections on Conservation
25 Area 1 and Conservation Area 2 leave out the topic of
Page 44
1 evapotranspiration.
2 This particular section talks about
3 rainfall as a major contributor of water, but there
4 is no discussion in here about the outflow by way of
5 ET, and I think that that should be included for
6 completeness.
7 In addition, this section does not mention
8 seepage losses, which are an important hydrologic
9 consideration, and I believe that that should be
10 included in this section.
11 In the next to the last paragraph on 116 it
12 talks about a historic norm, and it's not indicated
13 whether that is a norm for earlier periods of water
14 management or historically. I think it should be
15 important to indicate what norm they are talking
16 about.
17 But with those reservations and, also, with
18 the understanding that this is a simplification of a
19 very complex issue and also with -- excuse me. I
20 believe you asked me to read from where it says Water
21 Conservation Area 3 in 114 through --
22 MR. KOBELINKSKI: Page 117.
23 THE WITNESS: Then it appears, also, that
24 the sentence which is the last sentence on 114
25 and the top sentence on 115 is not -- something
Page 45
1 seems to be missing there where it says, "Major
2 inflows include the drainage from the EAA from
3 the north includes the Miami Canal and a
4 combination of agriculture."
5 It appears that that sentence is in error,
6 so I can't comment on that, but I would point
7 out that a portion of that sentence seems to be
8 missing. But again, with those reservations, I
9 would say that this section is not wrong.
10 MR. GARVER: Mr. Larsen, I do want to
11 reiterate that I want you to take as much time
12 as you need to review the material I am asking
13 you to read before I am asking my questions.
14 THE WITNESS: Well, I would just state that
15 I am doing the best I can. I am spending, I
16 believe, a reasonable amount of time reviewing
17 this material, even to the point where I can
18 find incomplete sentences.
19 But again, reviewing this material in the
20 context of a deposition is not the way I would
21 normally review it, but I am doing the best I
22 can under the circumstances.
23 MR. GARVER: I just want to make sure you
24 are not feeling rushed in any way.
25 MR. KOBELINKSKI: Counsel, I would note you
Page 46
1 have him reading in this case approximately
2 three and-a-half pages and asking him to confirm
3 whether there's anything that he disagrees with,
4 even though in these three pages they have
5 listed scientific studies in at least upwards of
6 a dozen times. He has not had the opportunity
7 to now then go back and see whether or not those
8 scientific studies actually state what they are
9 referenced for. Nor does he have any other
10 reference materials to compare this to. So
11 again, I would for the Record, he is reading
12 this. He is not comparing this or doing any
13 research on it, and that is all that he is
14 doing.
15 BY MR. GARVER:
16 Q. Mr. Larsen, you have read the SWIM Plan at
17 least once before; is that correct?
18 MR. KOBELINKSKI: I will object to the
19 extent that that question has been asked and
20 answered more than once.
21 THE WITNESS: I believe I have possibly
22 read it more than once, but that was some time
23 ago, and my recollection of that reading is not
24 current.
25 Also, I point out that this is a very large
Page 47
1 document, and you're asking me to review small
2 portions of it, and while I am doing the best I
3 can, it's possible that given the time to review
4 the whole document, there would be items which I
5 would find useful in here to alleviate some of
6 my concerns that I am mentioning, you know, as
7 we go through these individual pages and the
8 portions that you are asking me to read.
9 BY MR. GARVER:
10 Q. Mr. Larsen, I'd next like you to read the
11 section beginning on Page 117 entitled Regulation
12 Schedules to Page 120 to the heading Vegetation
13 Characteristics.
14 MR. KOBELINKSKI: Where are we reading to,
15 Counsel?
16 MR. GARVER: Page 120.
17 MR. KOBELINKSKI: Vegetative
18 Characteristics?
19 MR. GARVER: Right.
20 MR. KOBELINKSKI: Thank you.
21 THE WITNESS: You wanted me to read on Page
22 120 to where it talks --
23 BY MR. GARVER:
24 Q. Just stop when you get to the heading
25 Vegetation Characteristics.
Page 48
1 A. Okay. I have read the material.
2 Q. Based on your studies and investigation of
3 the history of the Federal Project, do you have any
4 factual knowledge or information or are you aware of
5 any factual knowledge or information that is contrary
6 or inconsistent with anything in the material I just
7 asked you to read?
8 A. Can you repeat that question very slowly
9 where you say factual knowledge or --
10 Q. Information?
11 A. Go on.
12 MR. GARVER: Could you read the question
13 back, please.
14 (The question referred to was
15 thereupon read by the reporter as
16 above recorded.)
17 THE WITNESS: This is a series of
18 paragraphs that describe an exceedingly complex
19 issue, and it is one that I don't feel
20 comfortable in confirming or refuting without
21 extensive review of the materials and of
22 graphics provided.
23 In my reading of this material, nothing
24 leaps out at me as being wrong. But again, the
25 material is so complex that it would require
Page 49
1 extensive review for me to either confirm or
2 refute the materials that you have just asked me
3 to read.
4 BY MR. GARVER:
5 Q. What additional materials or information,
6 if any, would you need to review in order to be able
7 to confirm or refute the information in the material
8 I just asked you to read?
9 A. Documentation from the Corps of Engineers
10 which describes these regulation schedules in more
11 detail and any other documentation that would be
12 available.
13 Q. I'd like you to now turn to Page 122 of the
14 Supporting Information Document. I'd like you to
15 read the section that begins at the bottom paragraph
16 which starts out Enclosure of WCA-1 and continue
17 reading onto Page 125 until you reach the subheading
18 Cattail Distribution in WCA-1.
19 A. I have read the material.
20 Q. Mr. Larsen, I am not asking for your expert
21 opinion in any way. But based on your studies and
22 investigation of the history of the Federal Project,
23 do you have any factual information or knowledge or
24 are you aware of any factual information or knowledge
25 that is contrary or inconsistent with the material I
Page 50
1 just asked you to read?
2 MR. KOBELINKSKI: And I will object to this
3 question on the grounds that the portions that
4 Counsel just requested Mr. Larsen to review
5 which starts on the closing paragraph on Page
6 122 through Page 125, the paragraph Commencement
7 of Cattail Distribution is basically replete and
8 almost completely centered upon expert opinions.
9 For example, taking from the first
10 paragraph of Page 125 nutrient enrichment into
11 these waters may also play a major role in
12 determining the vegetative characteristics of
13 the center portion of the Refuge, the third
14 paragraph Everglades plant communities are
15 thought to have evolved in Everglades
16 ecosystems.
17 This entire section is just expert opinion.
18 To question this witness as to whether or not he
19 has facts that would disagree with this is
20 merely asking for his opinion on these expert
21 opinions. This is not a factual paragraph or
22 section that counsel has asked this witness to
23 review. He is now asking this witness to review
24 expert opinions, and I object to that.
25 BY MR. GARVER:
Page 51
1 Q. You may answer the question, Mr. Larsen.
2 A. I would point out that I am not a
3 biologist, and that much of the material in this
4 section deals with the opinions of others, and I'd be
5 happy to give you my opinion on their opinions.
6 MR. KOBELINKSKI: I direct the witness not
7 to provide opinions on any of these expert
8 opinions. That's not what you are here for, to
9 give opinion testimony.
10 THE WITNESS: However, in this section, I
11 do see that they have left out the topic of
12 soils as it is related to vegetation, and I
13 would think some information on relationships of
14 vegetation to soils would be appropriate. So as
15 a fact, I think that the fact about soils ought
16 to be included in a section about plant
17 communities.
18 MR. KOBELINKSKI: I would also object to
19 the extent -- and correct me if I am wrong --
20 this section you had the witness read does refer
21 to Figure 22, which is a survey of major
22 vegetative zones within WCA-1.
23 Petitioners have been repeatedly, for a
24 number of the past few years, been kept out of
25 WCA-1 and have been unable to do any type of
Page 52
1 vegetative survey.
2 I object to any attempt to make this
3 witness confirm or disaffirm that this
4 vegetative zone figure is accurate in any
5 fashion whatsoever.
6 MR. GARVER: I think it may be a matter of
7 fact that this witness has not entered the
8 interior of the Refuge and made observations or
9 other experiments or whatever else may have been
10 done in the interior of the Refuge to confirm or
11 deny or comment upon Figure 22.
12 However, the witness has testified that he
13 reviewed a substantial amount of material
14 regarding the history and development of the
15 Everglades, and certainly his recollection or
16 knowledge regarding what those other materials
17 say with respect to the information in Figure 22
18 is well within the scope of the questions in
19 this deposition.
20 MR. KOBELINKSKI: My objection still
21 stands, and the hearing officer is well aware of
22 the fact that we have not been able to get into
23 the Refuge. So I would object to any type of
24 verification with that particular Figure No. 22.
25 MR. GARVER: Are you instructing the
Page 53
1 witness not to make any comment whatsoever with
2 respect to Figure 22?
3 MR. KOBELINKSKI: No. I am objecting to --
4 I mean, you can ask him whatever you'd like to
5 about Figure 22.
6 I am stating on the Record that we have
7 been unable to do any type of vegetative zone
8 mapping. As a result, I don't know how the
9 witness can verify one way or another. But you
10 can ask him any questions you'd like, Counsel.
11 MR. GARVER: I have asked him a question
12 that covers the entire section or material that
13 includes Figure 22, and to that extent, Figure
14 22 is included in my question.
15 BY MR. GARVER:
16 Q. Mr. Larsen, I believe you mentioned that
17 you believe that the section I just asked you to
18 review does not contain information regarding soils
19 that you feel would be important in this section.
20 Again, I am not asking for your expert
21 opinion, but based on your studies and investigation
22 of the history of the Federal Project, do you have
23 any factual information or knowledge or are you aware
24 of any factual knowledge that is contrary or
25 inconsistent with the information contained in that
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1 material, other than what you have already mentioned?
2 MR. KOBELINKSKI: I will repeat my prior
3 objection as to the witness testifying as to
4 facts relating to expert opinions.
5 THE WITNESS: I have not reviewed in detail
6 the underlying documentation for this section.
7 So, therefore, I do not choose, and I don't
8 think it's appropriate for me to comment, either
9 to confirm or refute the material in this
10 section.
11 BY MR. GARVER:
12 Q. In your studies and investigation of the
13 history of the Federal Project, have you come across
14 any factual information that discusses the topics
15 that are discussed in the section I just asked you to
16 read on Pages 122 to 125 of the Supporting
17 Information Document?
18 A. I am certain that I have read material
19 dealing with vegetation but, again, I am not a
20 biologist, and my comments on vegetation would -- and
21 comments in terms of confirming or refuting this
22 specific material in the context of this deposition
23 would be inappropriate.
24 Q. I'm not asking you to confirm or refute the
25 information.
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1 What I would like to know is if you have
2 encountered any information, whether or not you find
3 it -- not whether you personally believe or in your
4 opinion it's accurate -- but whether you have
5 encountered any information in your studies and
6 investigation of the Federal Project that is contrary
7 or inconsistent with the material in Pages 122 and
8 125?
9 A. All I can tell you is that my review of the
10 materials have not focused on vegetation. So asking
11 me in the context of this deposition to state whether
12 or not I have read anything or seen anything that
13 either proves or disproves this material would be in
14 the nature of asking me my opinion as to whether or
15 not this material is right or wrong.
16 Without actually going in and reviewing the
17 statements and the studies upon which this is based,
18 such as Everglades plant communities are thought to
19 have developed within a phosphorus deficient
20 ecosystem with a majority of nutrients derived from
21 direct rainfall. That is a statement that I don't
22 have facts to either confirm or refute. So I find it
23 very difficult to respond to your question.
24 Q. Is it your testimony, then, that you have
25 encountered no materials in your studies and
Page 56
1 investigation of the history of the Federal Project
2 that pertain to whether Everglades plant communities
3 have developed within a phosphorus deficient
4 ecosystem with a majority of nutrients derived from
5 direct rainfall?
6 MR. KOBELINKSKI: I will object to the form
7 of the question, mischaracterizes the witness'
8 testimony.
9 THE WITNESS: I have seen maps that show
10 large areas of cattails, which some argue are a
11 result of nutrients growing in areas which are
12 or were probably not subject to any nutrient
13 elevation.
14 So looking at that one sentence, I have
15 seen factual information which would lead me to
16 disagree with that, to the extent that, you
17 know, people say that cattails are, but I mean,
18 this is all opinion.
19 MR. KOBELINKSKI: I will object and direct
20 this witness, he is not here to agree or
21 disagree with the opinions contained in these
22 paragraphs.
23 MR. GARVER: Are you objecting to my
24 question or to the witness' answer,
25 Mr. Kobelinkski.
Page 57
1 MR. KOBELINKSKI: I am objecting to both.
2 I have told you repeatedly I object to all these
3 questions based upon you asking him to testify
4 about these expert opinions, and any question
5 that you ask is basically asking him for expert
6 opinion testimony.
7 MR. GARVER: I have carefully framed my
8 questions to avoid that problem,
9 Mr. Kobelinkski, as you are aware.
10 MR. KOBELINKSKI: And, obviously, since he
11 was just saying he disagrees with these
12 particular opinions, he must have either
13 misunderstood your question or it wasn't that
14 carefully drafted.
15 MR. GARVER: I find it somewhat unusual
16 that you are objecting to your witness' answers,
17 Mr. Kobelinkski.
18 MR. KOBELINKSKI: I am not objecting to
19 anything except the fact that you are asking
20 questions about expert opinions in a fact
21 deposition.
22 MR. GARVER: Well, I obviously don't agree
23 with that.
24 In fact, you have objected twice to
25 Mr. Larsen's answers which, like I said, I find
Page 58
1 quite unusual.
2 MR. KOBELINKSKI: I don't object to your
3 answers at all, Mr. Larsen.
4 BY MR. GARVER:
5 Q. You mentioned some maps that showed areas
6 of cattails in areas in which there were not elevated
7 nutrients.
8 What maps are you referring to,
9 specifically?
10 A. Davis 1943 Map.
11 Q. And where is that map located? Is that in
12 the context -- does it stand alone or is it included
13 in another document?
14 A. I have seen the map, and there may be
15 supporting materials to it, but I have not reviewed
16 those.
17 Q. Have you seen any other or come across any
18 other information such as those maps, again, without
19 revealing your expert opinion, that are relevant to
20 the topics raised in the material on Pages 122 to
21 125?
22 THE WITNESS: I'm afraid that the only way
23 to respond to your question -- I have been
24 attempting to respond to these questions
25 yesterday afternoon and this morning up to this
Page 59
1 point by dealing with them on a paragraph or
2 section basis.
3 I think now we have to go back to what we
4 were doing yesterday morning and deal with this
5 whole section sentence by sentence.
6 MR. GARVER: Okay.
7 THE WITNESS: I am happy to do that, and I
8 will tell you sentence by sentence whether I
9 agree or disagree and whether I feel that the
10 sentence is based upon an opinion or fact and
11 let you know anything I know about the sentence.
12 MR. GARVER: I will happy to have you do
13 that. I am not sure Mr. Kobelinkski would.
14 MR. KOBELINKSKI: No. I'd object to that
15 type of testimony in this deposition.
16 (Thereupon the deposition was adjourned)
17
18
19
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