177
1 DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA
2
3 SUGAR CANE GROWERS COOPERATIVE )
OF FLORIDA; ROTH FARMS, INC., and )
4 WEDGWORTH FARMS, INC., )
Petitioners, ) DOAH Case No. 92-3038
5 v. )
SOUTH FLORIDA WATER MANAGEMENT )
6 DISTRICT, an agency of the State )
of Florida; et al., )
7 Respondents. )
- - - - - - - - - - - - - - - - - - x
8 FLORIDA SUGAR CANE LEAGUE, INC.; )
UNITED STATES SUGAR CORPORATION; )
9 and NEW HOPE SOUTH, INC., )
Petitioners, )
10 v. ) DOAH Case No. 92-3039
SOUTH FLORIDA WATER MANAGEMENT )
11 DISTRICT, an agency of the State )
of Florida; et al., )
12 Respondents. )
- - - - - - - - - - - - - - - - - - x
13 FLORIDA FRUIT AND VEGETABLE )
ASSOCIATION; LEWIS POPE FARMS; )
14 W.E. SCHLECHTER & SONS, INC., )
and HUNDLEY FARMS, INC., )
15 Petitioners, )
v. ) DOAH Case No. 92-3040
16 SOUTH FLORIDA WATER MANAGEMENT )
DISTRICT, an agency of the State )
17 of Florida; et al., )
Respondents. )
18 - - - - - - - - - - - - - - - - - - x
100 S.E. 2nd Street
19 Miami, Florida
March 29, 1994
20 9:00 p.m. - 11:45 a.m.
21 DEPOSITION OF THOMAS E. LODGE, Ph.D., C.E.P.
22 Taken before THOMAS R. NEUMANN, Registered
Professional Reporter and Notary Public in and for
23 the State of Florida at Large, pursuant to Notice of
Taking Deposition filed in the above cause.
24 - - - - - - -
178
1 APPEARANCES
2
ON BEHALF OF THE PETITIONERS SUGAR CANE GROWERS
3 COOPERATIVE OF FLORIDA, ROTH FARMS, INC., AND
WEDGWORTH FARMS, INC.
4
HOPPING, BOYD, GREEN & SAMS
5 123 South Calhoun Street
P.O. Box 6526,
6 Tallahassee, Florida 32314
BY: CAROLYN S. RAEPPLE, ESQ.
7
SOUTH FLORIDA WATER MANAGEMENT DISTRICT
8
POPHAM, HAIK, SCHNOBRICH & KAUFMAN, LTD.
9 4000 International Place
100 S.E. 2nd Street
10 Miami, Florida
BY: GREGORY CESARANO, ESQ.
11
ON BEHALF OF THE RESPONDENT-INTERVENOR
12 UNITED STATES OF AMERICA
13 TOM WATTS-FITZGERALD, ESQ.
ASSISTANT U.S. ATTORNEY
14 99 N.E. 4th Street
Miami, Florida 33132
15
16
INDEX
17 Witness Direct Cross Redirect Recross
THOMAS E. LODGE
18 By Mr. Watts-Fitzgerald 179
19
20 EXHIBITS
21 NUMBER BATES NO. PAGE
22 Exhibit 5 DTL00002402-2428 193
Exhibit 6 DTL00002594 197
23 Exhibit 7 DTL00002454-2459 221
24
179
1 Thereupon --
2 THOMAS E. LODGE
3 was called as a witness and, having been first duly
4 sworn, was examined and testified as follows:
5 CONTINUED CROSS EXAMINATION
6 BY MR. WATTS-FITZGERALD:
7 Q. Doctor, back on the record. I remind you
8 you are still under oath from yesterday. Same ground
9 rules as Mr. Cesarano laid out.
10 If you want to take a break or anything
11 like that, please just let me know. And as I said
12 yesterday, I think we will finish long before noon.
13 I want to go back briefly and make sure I
14 understand the sequence of events in the production
15 of the vegetative maps -- not the two early ones from
16 October '93 that we were just making a demonstration
17 with, but the two more recent that you produced, the
18 larger scale for just WCA-2A and the smaller scale
19 showing the Loxahatchee down to just below Tamiami
20 Trail and into Everglades National Park.
21 As I understand it after the satellite
22 image was acquired using some kind of random number
23 generator and constraining the generator to pick
24 sites that had at least three pixels of the same
25 spectral characteristics?
180
1 A. At least 9.
2 Q. 3 x 3, okay. Three square grids of pixels
3 which would give you 100 per site, how large would
4 three be in terms of the square?
5 A. Pixels are roughly 25 meters, so that's 75
6 meters. It's around 200 some feet.
7 Q. I had understood you to give it in feet.
8 We will go metrically, 75 meters. It's easier.
9 Roughly 200 random 75 meter square sites
10 were generated by the software?
11 A. Yes.
12 Q. No one had visited those sites as yet, they
13 were not pre screened in any way; am I correct, other
14 than the constraints that they have?
15 A. There was a chance that a randomly selected
16 site would fall upon a site that we had visited, but
17 that didn't happen.
18 Q. Now, the sites up to that point, how many
19 sites had you visited throughout the area?
20 A. Again, I was unable to refresh myself last
21 night on the total number of sites that went into it.
22 It should be a simple addition of the stations that
23 are in the field notes. But Mr. Downing will have
24 that exact number.
25 Q. So that the 200 sites were not your ground
181
1 truthing sites. Were they referred to as training
2 sites?
3 A. No. They were referred to as potential
4 accuracy check sites.
5 Q. So they were intended to be visited after
6 the fact, if necessary?
7 A. No, they were only visited on the color
8 infrared aerial photographs.
9 Q. The colored infrared photographs were not
10 themselves ground truthed, were they?
11 A. In a sense they were because the first
12 exercise we did was to identify the sites on the USGS
13 quadrangle sheets that we had visited on the ground
14 for ground truth. We then superimposed the color
15 infrared areas over the USGS quadrangle maps and
16 identified on the areas the exact sites that we had
17 visited.
18 Q. So you never did an unbiased ground truth?
19 A. Never did an unbiased ground truth in the
20 sense of going back to the field to do the accuracy
21 check in the field, no. The accuracy check was being
22 done against the aerial photograph.
23 Q. I understand. The way I was using bias was
24 in the sense of photogrammetry and remote sensing.
25 And tell me if you understand this to be true, too,
182
1 where specialists in the field are always concerned
2 about bias induced by knowing in advance what they
3 should find or expect to find at a field site they
4 plan to visit for ground truthing. Are you familiar
5 with that concept?
6 A. Yes, very much so.
7 Q. When you went out and visited your field
8 sites initially, prior to the generation of the
9 images back in the lab, you specifically selected
10 those sites because of their homogenous nature or the
11 fact they represented certain aspects of the
12 ecosystem?
13 A. That's correct.
14 Q. In that sense they were biased. These were
15 not randomly selected sites?
16 A. Absolutely.
17 Q. Not only did you know what to expect there,
18 you were actively seeking what you found or hoped to
19 find?
20 A. That's correct.
21 Q. I think I have that clear now.
22 After you produced the grid you marked on
23 the grid the sites that you had field visited in
24 advance?
25 A. Right.
183
1 Q. So those were known ground truth points?
2 A. Right.
3 Q. You then overlaid your known ground truth
4 point and grid with the infrared photography which
5 itself up to that point had no ground truthing
6 accompanying it; am I correct in that?
7 A. That's correct.
8 Q. So BDA did not provide with all of those
9 negatives we saw yesterday, any indication of what
10 they may have done to ground truth or allow them to
11 interpret the vegetative images on the photography?
12 A. That's correct. They only supplied the
13 aerial photographs.
14 Q. Did you ask if they had ever done that to
15 supplement your field visits and assist you in
16 interpretation?
17 A. We did not ask. I think it would be
18 improper to ask because, in my opinion, that would
19 bias our determination for someone to tell us on an
20 aerial photograph this is cattail and this is
21 sawgrass. We would say okay, we will go with that.
22 I think that's improper.
23 The way we went about it was to overlay the
24 transparencies on what we had done and we have a
25 known spot on a map. We overlay the aerial
184
1 photograph and then we say, oh, that's what that spot
2 looks like on this particular aerial photograph. I
3 see that that's yellow in color, so I can assume
4 maybe that this yellow spot over here is the same
5 thing.
6 In fact, we looked around for some of our
7 other field check spots to see if we could verify
8 that. That was an educational aspect of what we did
9 so that we learned the aerial photographs based on
10 our judgment.
11 Q. Now I understand that you wanted to do it
12 based on your own field truthing because, you know,
13 you could assign whatever level of reliability you
14 think is appropriate based on the work that you and
15 Mr. Darling did.
16 Is it not true that if BDA had in fact done
17 a similar type of process for their photo imagery,
18 you could still have done your analysis and then you
19 would have the benefits of, let's say, 100 more
20 ground stations to verify your spectral Class A
21 assignment?
22 As I recall your testimony yesterday, you
23 said -- and correct me if I'm wrong -- the more
24 ground truthing or the more verification and
25 calibration you can insert into this process, the
185
1 more accurate your generated result becomes?
2 A. Yes. To add their interpretation after we
3 had looked at it would have -- that would be nice if
4 it exists.
5 Q. Did you ask if it existed?
6 A. No. The first time I ever saw those
7 transparencies I realized it was mid week last week.
8 And we immediately went into the routine of
9 evaluating those ourselves.
10 Q. Have you ever done a second tier vegetative
11 evaluation like that? I use second tier not as a
12 term of art but just to point out that the insertion
13 of this layer of infrared photography between the
14 other steps which are sort of classical photo imagery
15 interpretation steps is somewhat novel to me. Had
16 you ever done that kind of thing before?
17 A. In the work we did for Collier Resources in
18 the Big Cypress, we did some of that. Not as
19 purposeful as we have done it here, but we used color
20 infrared aerial photography to judge whether or not
21 pixels in the map we received from the National Park
22 Service were correct.
23 Q. So it was somewhat of a different focus,
24 then?
25 A. Yes.
186
1 Q. Is it fair to say that given unlimited
2 resources and time you would not employ such a
3 technique but employ more direct observational
4 mechanisms?
5 A. I think it would be of interest to do that,
6 but I'm confident that our methodology is quite good.
7 And to throw in another level, I'm not sure that we
8 would really add anything.
9 It would be of interest to do it. But I
10 think our methodology has very good logic to it.
11 Q. So there is more than one way to skin a cat
12 in the field of photo imagery interpretation?
13 A. There are many ways, correct.
14 Q. In your experience, is there any single
15 correct or incorrect way to attempt to do something
16 like this or something like the project you described
17 yesterday to work back in time to an '85 image?
18 A. It would be beneficial in working back to
19 an '85 image to have aerial photography that was
20 reasonably close in date to the '85 date. That's
21 correct. You could improve your interpretation of
22 the '85 image by doing that.
23 Q. The one chart we have here, the TMM for
24 December '93 showing the entire system is indicated
25 upon it to be a supervised classification. You said
187
1 yesterday with regard to the '85 effort an
2 unclassified version of the '85 image would be
3 generally -- can you explain what you mean by
4 unclassified version?
5 A. You have to ask Mr. Darling the meaning of
6 that terminology.
7 Q. You said something yesterday I didn't quite
8 understand -- and your words, I guess, are probably
9 what highlighted my mind -- that you could get back
10 at Downing or Ed Downing independently with the
11 photos, and that the timing of each growth pattern
12 would be germane to that analysis.
13 Do you recall what you were driving at? I
14 didn't really understand that?
15 A. I don't recall the specific line of
16 questioning, but the idea that we had was that what
17 Mr. Downing was doing would allow him to pre judge
18 what was in an area and what I was doing in an area
19 that we had not field checked, not ground truthed,
20 and that my methodology of checking independently on
21 another aerial photograph to arrive at a decision of
22 what that point should be was a way of getting back
23 at Mr. Downing's classification from another
24 direction.
25 Q. After you went through this whole process
188
1 did you ever go out into the field again to recheck a
2 station or recheck an observational point where there
3 was any question because of the spectral image on the
4 infrared?
5 A. Yes.
6 Q. You identified it, I believe, in the field
7 notes somewhere that there was a confusion of the
8 site and the computer was unable to assign a category
9 in a few places, something akin to that Mr. Downing
10 could explain it.
11 A. He requested a specific site to go see what
12 was there because the computer couldn't come up with
13 something.
14 Q. That was on February 19, 1994 if I recall,
15 the day after the visit to the park ground truthing
16 stations.
17 How many sites other than -- I want to say
18 H-19, but whatever the number was. It's in the
19 record from yesterday. How many sites other than the
20 one I cited to from the video tape had to be
21 revisited because of confusion or lack of
22 discrimination in the imagery?
23 A. I recollect that Ed had pointed out I think
24 two areas where he was concerned, and we visited both
25 of those areas. I don't recall how many stations we
189
1 actually had.
2 Q. And beyond that, no additional stations
3 were added to expand the number of ground truth or
4 expand the number of ground reference locations to
5 assist in interpreting either the infrared photos or
6 the satellite imagery?
7 A. No, the decision was we had enough stations
8 to do a good job on classification.
9 Q. You started with the notion of using 200.
10 You went down to somewhere between 50 and 70, if I
11 recall your testimony yesterday correctly.
12 How was the number 200 originally selected?
13 A. I don't remember exactly where that came
14 from, but there was a statement we had input from an
15 outside party as to how many stations would be proper
16 number to use for verification.
17 Q. Who was the outside?
18 A. I don't recall. Mr. Downing would have
19 that information. It may have been someone -- I
20 don't recall.
21 Q. Is there someone else in Law Environmental
22 who is considered more of an expert on remote sensing
23 and satellite imagery than Mr. Downing?
24 A. No. But I believe the caliber of person he
25 consulted had to do strictly with statistics.
190
1 The other side of the coin is that the
2 level of accuracy increases as you increase the
3 number of check points. Obviously the first few
4 check points make a huge difference, because you
5 haven't done any. As you successively add check
6 points, the degree of precision gets better and
7 better but the incremental increase is small.
8 My judgment is that 20 or 30 stations would
9 give you a tremendous amount of confidence. I
10 thought going out to 70 was ample.
11 Q. In WCA-2A, which just for round numbers is
12 probably 150,000 acres, something in that order --
13 A. Yes, correct.
14 Q. -- if you had 270 ground sites, each one as
15 you get out there near the end then would contribute
16 a very small percentage increase in the map's
17 accuracy, but does imply an increasingly -- assuming
18 all techniques are reasonably applied, you get a
19 better and better product?
20 A. You get to the point where you are
21 splitting percentage points, however. And the degree
22 of accuracy -- you always have to make a decision
23 where you are going to stop in the interest of time
24 versus how accurate you need to be. A person that is
25 sampling every point, nobody does that. That's not
191
1 called sampling.
2 Q. So it's a mix of business decision,
3 economics and very pragmatic?
4 A. Yes, but I think our main concern was
5 whether or not we would have a defensibly accurate
6 document. And I believe we have done enough for
7 that.
8 Q. Have you compared your defensibly accurate
9 document against the many other vegetative maps that
10 have been produced at least as far back as 1943 by
11 the other John Davis of the Everglades ecosystem?
12 A. I have not made a direct comparison of our
13 map to the map of John Davis.
14 Q. You are familiar with that from the review
15 of the Davis -- Steve Davis/John Ogden book because
16 it was included in the jacket?
17 A. John Henry Davis?
18 Q. Yes.
19 A. Long before that. As a graduate student I
20 worked with that map. I have had a Xerox copy of it
21 for years and years and added a color copy for that
22 six or eight months ago. Yes. I have looked at that
23 extensively.
24 Q. And in your materials I saw some other
25 vegetative maps, for example, other than in the
192
1 Rutchey paper and some of those documents.
2 There is a document in there, I don't know
3 if that's your number.
4 A. That's not my number. I have glanced
5 through that.
6 MS. RAEPPLE: Those are my numbers.
7 BY MR. WATTS-FITZGERALD:
8 Q. U.S. Attorney number DTL 0000 looks like
9 100 acre vegetative model prepared?
10 MS. RAEPPLE: What is the TEL number?
11 MR. WATTS-FITZGERALD: 1756.
12 BY MR. WATTS-FITZGERALD:
13 Q. This shows stations and vegetative mapping
14 and all sorts of interesting things.
15 Did you, in fact, review that document?
16 A. I have flipped through this and thought
17 that I will need to make a thorough review at some
18 point of this. And then I thought that I needed to
19 supply it because I might need to depend on it. But,
20 in fact, I have not evaluated it carefully.
21 Q. Do you still anticipate doing so?
22 A. I will undoubtedly look at that more
23 carefully, if for nothing else out of my own
24 interest. But I considered that in a sense could
25 prejudice my interpretation of what is here and now.
193
1 And so to learn that carefully before I do a field
2 evaluation, I think it's not necessary.
3 Q. Your field evaluation for Loxahatchee is
4 done, isn't it?
5 A. Yes.
6 Q. So you are not concerned it's going to
7 prejudice you now?
8 A. No. A week ago, perhaps.
9 MR. WATTS-FITZGERALD: This shows a time
10 series from '48 through '72 and has a received
11 stamped April 7, 1975 South Florida National.
12 Mark that Exhibit 5.
13 (The document referred to was thereupon
14 marked Exhibit 5 for Identification.)
15 BY MR. WATTS-FITZGERALD:
16 Q. Other than the work you did as part of your
17 course of study at the University of Miami for your
18 your doctorate and your work with Mr. Kushlan on
19 freshwater fish of the southeast, can you describe
20 for me the other scientific research projects you
21 have engaged in within the Everglades ecosystem
22 exclusive of this mapping exercise?
23 A. If you want to include the mangrove swamps
24 of Dade County as part of the greater Everglades
25 ecosystem, for a short time I headed the field aspect
194
1 of a project that looked at leaflets or decomposition
2 in bags using the methodology of Bill Odom and Eric
3 Heath. That was work with Howard Teets at the
4 University of Miami.
5 Q. What period of time did that encompass?
6 A. While I was still a graduate student. That
7 was 1972 and '73.
8 Q. Did that result in a published work?
9 A. Yes. And I had, for reasons of finishing
10 my dissertation, pulled out of that work. I was
11 involved in the initial set up of the stations and
12 retrieval of information, so I have worked in that
13 capacity.
14 Q. Who was the principal author of the study?
15 A. Howard Tees.
16 Q. Where were those stations located?
17 A. They were in coastal mangrove swamps of
18 primarily southern Dade County from Matheson Hammock
19 to the Homestead Air Force Base area.
20 Q. To the are now encompassing Biscayne
21 National Park, that area?
22 A. Yes.
23 Q. What was the duration of the study?
24 A. I believe it was a two-year study. I don't
25 have it with me.
195
1 Q. Had there been any other scientific studies
2 or surveys in which you have participated since then?
3 A. No, with the exception of the kinds of
4 surveys that you do in wetland permitting. And in
5 the last few years I have been heavily involved, as I
6 said, in the Weston project in Broward County for
7 Arvida. That's historic Everglades, sawgrass.
8 Q. You described Weston. I was excluding that
9 because I'm specifically asking about scientific
10 research as opposed to commercially directed work.
11 That's getting away from the dredge and fill?
12 A. Correct. I have been a consultant in that
13 area.
14 Q. You discussed yesterday the issue of the
15 fire effect in WCA-2A and its indications on a
16 certain run, 11 photos that you identified for us.
17 The number I did not write down at the time but it's
18 in the record.
19 In your documentation I found a document
20 with a TEL number of 1945 and U.S. Attorney number
21 DTL 00002594 with an ACA aerial cartographer's legend
22 on it.
23 It shows what appears to be the water
24 conservation areas of the general Everglades and some
25 numbered lines.
196
1 Can you identify that for me?
2 A. This is a document supplied by Breedlove,
3 Dennis with the color infrared aerial photographs of
4 Water Conservation Area 2A. It identifies the flight
5 lines that apply to those.
6 Q. You said yesterday there was overland
7 running into Loxahatchee and down into conservation
8 area 3. Do the terminous blocks on these lines
9 correspond with the extent of the photography
10 available to you? Did you check that or can you
11 tell?
12 A. The flight lines that we were supplied are
13 not everything that is listed on this. The flight
14 lines we were supplied with intentionally for the
15 coverage of 2A and they are flight lines 8 through
16 14. They overlap slightly only into Loxahatchee
17 National Wildlife Refuge and 3A and into the 2B.
18 Whether or not there are additional photographs in
19 the series, the flight lines indicate going well up
20 into Loxahatchee.
21 Our photographs don't cut off. So if there
22 are additional photographs here, we don't have all of
23 the flight lines. We don't have the flight lines out
24 here, seven and smaller numbers.
25 Q. This indicates the photo scale, 1 to 24,000
197
1 which would match the quadrangle?
2 A. That is right.
3 Q. It doesn't indicate the flight altitude?
4 A. No.
5 MR. WATTS-FITZGERALD: Mark that Exhibit 6.
6 (The document referred to was thereupon
7 marked Exhibit 6 for Identification.)
8 BY MR. WATTS-FITZGERALD:
9 Q. One of your comments when you were talking
10 about the impact of such an event, subsequent photo
11 interpretation, had to do with the effect of the
12 removal of the brush cover and whatever would have
13 been subject to pushing -- opening up the water line.
14 You said water line. I assume you meant water
15 surface becoming more visible to an overhead image;
16 is that correct?
17 A. That's correct.
18 Q. How did you factor that in your analysis of
19 2A knowing or believing that there had been a recent
20 burn, relatively recent burn, whatever you stated?
21 A. We had ground truth points of course where
22 the burn had occurred. I think that you will see
23 somewhere in the field notes I recall writing down
24 that there was evidence of fairly recent burn that
25 the outer sheets of plants close to ground level
198
1 showed char marks.
2 It showed clearly that it had not been a
3 soil fire because the char marks were knocked down to
4 the actual ground level that was underwater.
5 Q. If the soil itself had not caught fire,
6 would you expect return of vegetation to be much more
7 rapid?
8 A. Yes.
9 Q. And in the area of the visible impact of
10 fire, were there any tree islands?
11 A. Yes.
12 Q. What type?
13 A. The heads of the tree islands were
14 historically bay heads. A lot of those, however,
15 have become infiltrated with wax myrtle and willow
16 and so on. The tails of the tree islands were
17 predominantly sawgrass with scatters of wax myrtle in
18 them.
19 Q. You stated nutrients have contributed to
20 changes in the water conservation areas yesterday.
21 On what do you base that opinion or conclusion?
22 A. I believe almost entirely on -- at least
23 now on the chapter by Steve Davis in the Everglades
24 restoration book. Previously I have seen odds and
25 ends of articles and heard conversations concerning
199
1 cattail growth into Loxahatchee and water
2 conservation 2A, and my opinion was really a poorly
3 founded one, so that now I think it's useful for me
4 to rely on Steve Davis' chapter.
5 Q. You said useful tool?
6 A. Yes. Proper tool, since that's a well
7 refereed documentation.
8 Q. In your experience in the Everglades
9 ecosystem, primary Everglades National Park going on
10 20 years now that you have been -- over 20 years that
11 you have been out there on occasion, had you ever had
12 occasion to associate moderate or dense cattail
13 growth with indicia of local nutrient enrichment such
14 as the presence of a rookery or a gator hole?
15 A. Alligator hole, I commented on that.
16 Q. Other than in those site specific instances
17 where there was an obvious indicia of nutrient
18 enrichment such as the gator hole or rookery or that
19 sort of thing happened, did you ever encounter
20 significant monotypical or dense stands of cattail in
21 the Everglades National Park?
22 A. Yes. I covered that yesterday. That stand
23 was in Everglades National Park.
24 Q. The saltwater stand?
25 A. Close enough to saltwater with no
200
1 measurements. It probably had to do with
2 construction of the Buttonwood canal in the 1950's.
3 Q. Do you have any sense of local
4 anthropogenic disturbance, construction type
5 disturbance such as on the Buttonwood canal causes or
6 enhances the ability of cattail to recruit into an
7 area.
8 I guess another word for my question if
9 that's not clear, once disturbed will cattails
10 forever always be disturbed or does the soil
11 stabilize in some way?
12 A. In that the Everglades has historically
13 been disturbed, that's well documented in soil
14 studies, that there obviously were disturbances in
15 the past that would have allowed cattails to come in
16 and probably they did from time to time, particularly
17 in the vicinity of, you say, alligator holes and
18 rookeries.
19 But the fact is they do not or have not
20 persisted in background Everglades.
21 Q. Does that suggest to you that the system
22 has the capability to absorb a certain levels of
23 disturbance and ultimately revert to the sawgrass
24 prairie Everglades?
25 A. Yes.
201
1 Q. And within those disturbances would you
2 count naturally induced fire as a disturbance?
3 A. Certainly.
4 Q. Man induced fire by an indigenous native
5 population?
6 A. Yes. That's quite different than the
7 original fires, but yes.
8 Q. A fire, it would have the same potential?
9 A. It's still a fire, but it occurs at a time
10 of the year when natural fire was rare.
11 Q. What is your basis for believing that -- or
12 for asserting that indigenous populations that would
13 start fires would do so only -- and I deduce from you
14 this is occurring during the wet season --
15 A. Well, natural fires would occur frequently
16 during the wet season or at the very beginning of the
17 wet season when thermal activity starts and you get
18 thunder and lightning.
19 Q. Native Americans would use fire during the
20 dry season?
21 A. That is right. We don't know how the
22 native Americans used fire. The landscape that was
23 first seen when European men and women came here was
24 obviously one that had been also a product of Indian
25 use.
202
1 Q. The basis for the belief that the native
2 Americans employed fire as an aid to hunting or
3 clearing land for crop propagation or whatever it may
4 have been is anecdotal or what's the foundation?
5 A. My foundation are a couple of papers by
6 Bill Robertson. And in talking with Bill Robertson,
7 he is with the research group in Everglades National
8 Park, he has a paper that I have cited in my book,
9 that is in the early 1950's of his investigation of
10 fire.
11 Q. And some of that data derives from sediment
12 and soil analysis, the ash content and that sort of
13 thing?
14 A. That's right.
15 Q. Are you aware of any historical
16 documentation reports done for the Smithsonian or the
17 1800's or anywhere else where that is discussed? **
18 FIX THIS
19 A. Where fire is discussed?
20 Q. Yes.
21 A. No.
22 Q. You described in your book fire as probably
23 one of the major defining factors of the Everglades?
24 A. Yes.
25 Q. That it influences the nature and
203
1 development of tree islands?
2 A. Yes.
3 Q. That it influences the animal populations
4 because of its effect on the foliage?
5 A. Foliage and soils, particularly.
6 Q. And it has a tremendous impact in --
7 particularly the heavy dry season fires that do lead
8 to peat soil fires?
9 A. Correct.
10 Q. Is there a geographic limitation on that
11 view or is that as far as a defining characteristic
12 factor in the Everglades, both historic and current,
13 true from the headwaters to the tailwaters of the
14 historic Everglades?
15 A. Fires are important and particularly
16 important in seasonally dry areas virtually all over
17 the earth. Marsh habitat is typically prone to
18 natural fire management, whether the marsh is in
19 Minnesota or southern Florida. So I would take the
20 more expansive view that fire is an important
21 disturbance factor in a great many habitats and would
22 certainly extend it to the Kissimmee. I spent very
23 little time pondering the effects in the Kissimmee.
24 Q. There is a section in your book that
25 addresses periphyton and it was discussed briefly
204
1 yesterday. Did any of your prior work, commercial or
2 otherwise, deal with the spectral characteristics of
3 periphyton?
4 A. No.
5 Q. In examining the TMM image for December
6 '93, actually I guess both of them, are the
7 categories exactly the same?
8 The colors are different, 12 categories of
9 each. They seem to be identical. Is there any
10 concept or plan in the works to change the
11 categories, or did that just --
12 A. There is a plan to change the color
13 presentation so that the two maps follow the same
14 coding.
15 Q. Well, they seem to follow the same coding
16 until you get down to the predominant mix
17 sawgrass/other. Then it starts to change. So it's
18 just straightening out so they are consistent across?
19 A. Yes. I had been critical of this map
20 because sawgrass/cattail equal mix was so similar to
21 a slough that you really have to look carefully to
22 see the difference. I think that may have been the
23 reason for the change.
24 Q. You have a category predominant
25 periphyton/sawgrass. Is there such a community as
205
1 predominant/periphyton/sawgrass/cattail?
2 A. We didn't encounter such a community. I
3 would think that that's certainly possible that that
4 would exist. We did not encounter that. But we have
5 encountered situations where there is periphyton and
6 other than just sawgrass. For example, spike rush.
7 Q. I understand that. To take my question one
8 step further, did you ever find periphyton in
9 conjunction with cattail in your field work?
10 A. We saw some scattered cattail, but not to
11 the point where you would say sparse cattail.
12 Q. As a biologist with your experience in the
13 system, what conclusions do you draw from the fact
14 that apparently cattail does not coexist in any
15 significant quantities with the periphyton that's so
16 important to the Everglades food chain as you note in
17 your book?
18 A. The communities where you are most apt to
19 see abundant periphyton are rather shallow and prone
20 to seasonal drying for some short period of time.
21 That is not the best habitat for cattail.
22 The places where you see cattail at its
23 best are slightly deeper water, a slightly longer
24 period of inundation. So I would expect in a rich
25 periphyton area not to find much cattail.
206
1 Q. Do nutrients factor into that?
2 A. Following the logic of the Davis book
3 that's a plausible explanation that the nutrient
4 level would be low where abundant periphyton occurs.
5 Q. Since the publication of the Davis/Ogden
6 book have you revised your section on periphyton?
7 A. Yes, and that in part was not since the
8 publication. I revised it prior to that because one
9 of the only two chapters I was able to get in advance
10 of publication was Joan Browder and another chapter
11 on periphyton. I read that carefully and tried to
12 revise and did revise my chapter.
13 Q. And in your research for the book, did you
14 find anything contrary to the notion expressed in
15 your last paragraph where it says that periphyton has
16 been shown to be sensitive to changes in water
17 chemistry nutrients as well as other islands
18 evidenced by a shift in the kind of diversity of
19 algae. Typical periphyton is attracted to water
20 containing low levels of nutrients and the addition
21 of nutrients changes the assemblage. Certain kinds,
22 notably species of bluegreen algae, can fix nitrogen
23 and they become more common when the water is
24 enriched in phosphorous.
25 Did you find anything in your research to
207
1 the contrary?
2 A. No.
3 Q. You said yesterday that you had reviewed
4 and were relying heavily as the only source you
5 really reviewed in any depth for this matter on the
6 Davis/Ogden book. What is it in that book that you
7 are relying on with regard to your areas of testimony
8 in this case?
9 A. My area of testimony I believe is rather
10 limited in the assessment of the vegetation in that
11 particular sites as to what predominated at those
12 sites so that the map was based on a firm
13 understanding of the ground truth. That's the heart
14 of what my responsibility is.
15 Q. So with regard to your testimony that the
16 map or multispectral images that are going to be
17 produced, the book really has nothing to do with it?
18 A. The book?
19 Q. The Davis/Ogden book.
20 A. That's correct. It has little to do with
21 the vegetation of -- the actual description of the
22 vegetation.
23 Q. So is there anything in that book that you
24 are relying on or expect to rely on in any way for
25 the testimony as counsel went through it yesterday?
208
1 A. I believe that the heart of what I am
2 expected to do in this project has to do with the
3 ground truth vegetation. But the fact that I have
4 gone to the work of compiling this book, the
5 Everglades handbook, through a long number of years
6 of looking at Everglades literature and at least
7 experience as an interested person in the Everglades,
8 that I may have areas to contribute that are beyond
9 the mere ground truth of vegetation.
10 Q. Is it not fair to say that your book is, in
11 fact, to use your word "a compilation" and not based
12 on direct field work or scientific research by you
13 personally in the Everglades ecosystem?
14 A. Yes. There are several observations that I
15 have put into the book that are things that you
16 cannot find in the literature that are from my own
17 experience. The fish chapter and the bird chapter
18 have some areas that are my particular observation.
19 But that's correct, that the rest of it is a
20 compilation from having a considerable experience
21 with the literature.
22 Q. Have you carried forward in your books as
23 commentary on the Everglades ecosystem how one should
24 even approach it, items that are theories of various
25 of the writers and researchers in the field that are
209
1 not yet proven or generally accepted in the
2 scientific community? That's what I mean by
3 "proven."
4 A. Your question is have I presented material
5 of that sort.
6 Q. Yes.
7 A. Yes, I have. I believe that I have
8 qualified it.
9 My intent in those areas is to stimulate
10 thought for further research. One example is very
11 little is known about invertebrates. Very little is
12 known about amphibians. And, for example, little is
13 known about the impact of air boats. I have put
14 those in and qualified them, that more work is
15 needed.
16 Q. You mentioned yesterday a view that air
17 boats -- that you had a correlation between air boats
18 and monotypical cattail slots in 2A or something of
19 that nature, air boat trails?
20 A. Yes.
21 Q. You opined about the habit of air boat
22 operators and what vegetation they would or would not
23 go through.
24 Have you ever had occasion to go out into
25 Big Cypress or the western portions of Everglades
210
1 National Park where concessionaires operate air boats
2 on a regular basis?
3 A. Yes, I have taken air boat rides.
4 Q. And is your experience consistent with the
5 view that as long as air boats are regularly
6 operating over a particular route that a channel is
7 opened and maintained by the passage of those air
8 boats?
9 A. Yes.
10 Q. What then was the basis for your comment
11 that the air boat operators would alter their routes
12 or would somehow establish new routes rather than
13 maintain the routes they traditionally used?
14 A. That comment comes out of evaluating the
15 aerial photographs for 2A and seeing air boat tracks
16 on ISGS quadrangle sheets that are no longer present
17 in the aerial photograph. But on close examination
18 you can frequently see an indication of a line of
19 vegetation, and the reflectance of that line appears
20 to be the same as cattail in more prominent cases
21 where there is extremely heavy air boat use near the
22 launching areas.
23 In the northeast corner of 2A there are
24 abundant areas where tracks have changed and cattail
25 now dominates the area where there had been a
211
1 previous track. The period of time involved,
2 however, between the impact and cattails growing up
3 would be something that is why nobody kept going. It
4 may be quiet periods.
5 I don't know about the persistency of use
6 of air boats. There may be quiet seasons when
7 vegetation can come up quickly.
8 We do know from literature cattail grows
9 quickly. The typical maximum life is 88 weeks for
10 cattail. So that means it can be grow to be a large
11 plant within a year, and within less than two years
12 it's gone.
13 Q. What data do you have to support that the
14 tracks or surface you are referring to were, in fact,
15 caused by air boats rather than swamp buggies?
16 A. I don't have ground truth data, but when
17 you look at tracks on an aerial photographs and you
18 see gentle curves, that's indicative of air boat
19 traffic. In the areas where swamp buggies are used,
20 you see sharp turns. So they are often
21 distinguishable. Plus the fact swamp buggies
22 frequently track across tree islands, air boats do
23 not track across tree islands.
24 Q. In the northeast corner of 2A there are no
25 tree islands, are there?
212
1 A. That's correct.
2 Q. Would you agree a buggy would cause
3 considerably more ground disturbance than an air
4 boat?
5 A. Correct, absolutely.
6 Q. One page in your materials, I couldn't
7 determine the source of that. I ask you if you know
8 where it came from. It didn't have staple marks in
9 them. It may have fallen off. I thought perhaps the
10 back of the Loxahatchee document --
11 A. I recall that a page of something like this
12 did fall off the back of another document that was in
13 my possession. I have to admit I don't know what it
14 was attached to.
15 Q. What's the TEL number?
16 A. 1944. Do you want the DTL number?
17 Q. No.
18 MR. CESARANO: Mr. Fitzgerald, based on my
19 documentation that might be -- came with the
20 document that you previously discussed with
21 Dr. Lodge as having come from Breedlove, Dennis.
22 BY MR. WATTS-FITZGERALD:
23 Q. Do you recall seeing that document, Doctor?
24 A. Not in association with the Breedlove,
25 Dennis photography.
213
1 Q. I see now that counsel points it out it
2 does have sequential numbers.
3 I would like to run through some of the
4 other documents. This should be pretty quick, just
5 to figure out what for and why.
6 There is one here dated -- your name on it,
7 Hydro Biology, 21 May 1968, Property of Workshop
8 Center -- for workshop center, University of Florida,
9 "Probable Function of Alligator Holes, Phosphate
10 Trace." My number is 00001961.
11 Have you employed that document in any way
12 in your analysis?
13 A. I authored that document. And the -- that
14 has not been employed in my analysis of the aerial
15 photography that we have done here. However, that
16 line is referenced in my book.
17 Q. Who did the Eleocharis sampling that you
18 referred to in the document?
19 A. Eleocharis sampling or soil sampling?
20 Q. Soil sampling.
21 A. I did.
22 Q. Those were analyzed by USGS in Ocala?
23 A. I believe those particular samples were
24 analyzed by the University of Florida agricultural
25 extension service in Homestead, Florida. The samples
214
1 from the alligator holes were, in fact, done at
2 another laboratory. So there is a quality control
3 problem that in modern days we would never do, we
4 would always have the same laboratory do.
5 Q. Not always?
6 A. We would try.
7 Q. I understand what you are saying. You
8 would never, for example, do soil core analysis at
9 two or three different labs and try to combine them
10 because of the potential error that can be
11 introduced, technique, instrument drift, that sort of
12 thing?
13 A. There are techniques for combining data,
14 but that involves identical blanks and samples and so
15 on be distributed to all of the laboratories.
16 Q. You had a copy in your materials of a
17 paper. It had a cover card on it from Pete Rhodes of
18 the South Florida Water Management District.
19 "Oviposition Hatching and Early Growth of Young." It
20 appears to be a paper on the freshwater --
21 A. Freshwater crayfish. I tried to name now
22 the Everglades crayfish as a result of my book.
23 Q. The rest of the world calls it a mud bug.
24 What was your purpose? Apparently you solicited a
25 copy from Pete Rhodes?
215
1 A. Yes. Pete Rhodes was working on a
2 dissertation of crayfish, never finished it. He was
3 the fellow graduate student in the 1960s to about
4 1970. I knew about that work. And in researching
5 the invertebrate chapter I was aware that paucity of
6 information on invertebrates.
7 I called Pete to see if I could have a copy
8 of some sort of draft that would have information in
9 it that would be helpful.
10 Q. You had Dr. Jensen's paper along with Ken
11 Rutchey and Margaret Reid Koch and Sunil Narumalani.
12 On their time series data in area 2A vegetative
13 mapping effort.
14 Have you looked at that?
15 A. No. I stated yesterday I haven't had a
16 chance to review that.
17 Q. Have you ever seen the color images that
18 were generated as a result of that?
19 A. No, I have not.
20 Q. In your material, R 2016 -- my number
21 000002665 -- is a document handwritten at the top
22 from HBGS. Your name is handwritten captioned,
23 "Printed Landscape Dimension Composition Function in
24 the Changing Everglades Ecosystem." The author being
25 Steven Davis, Lance Gunderson, Winfred Park, John
216
1 Richardson and Jennifer Mattson.
2 Are you familiar with that document?
3 A. Yes.
4 Q. To what use did you put this?
5 A. I carefully reviewed that to assist
6 Hopping, Boyd, Green & Sams in their understanding of
7 the Everglades ecosystem and historic changes in
8 vegetation.
9 I also used that myself in modifying
10 chapters in my book having to do with vegetation. I
11 know now that my own copy of that I have discarded
12 because that is a chapter in the Everglades
13 restoration book.
14 If there are any editorial changes I have
15 decided I wanted to depend on what was in the
16 Everglades restoration book.
17 Q. Did you compare any of the land mosaic and
18 vegetative cover type maps here in that work that you
19 were producing or produced?
20 A. Very superficially. And I don't recall
21 that we have looked, for example, how close the
22 sawgrass plain is that we described there. That's
23 largely displaced by the Everglades agricultural area
24 that got close here.
25 The book also talks about the Hillsboro
217
1 Lakes area, that is Loxahatchee which formerly
2 extended into the northern portion of 2A. So to that
3 extent, yes, I have compared that to what we have
4 done.
5 Q. Did you find any substantial disagreement
6 with the work that they had done?
7 A. Of the historic vegetation there is a
8 tremendous disagreement that is apparent that the
9 construction of the Hillsboro canal and the
10 interruption that is there has greatly changed 2A.
11 Q. I can't begin to read this.
12 A. It's TEL 1946, my number 00002595.
13 Q. Can you tell me what that is?
14 A. Yes. This is a copy of original survey
15 note from land surveying done in the northern
16 Everglades. There was a time where we were going to
17 try to go through these documents for comments on
18 cattails. Other than the sample that I got and
19 looked at and thought would be worth pursuing, I
20 don't know that anyone has pursued that. I have not.
21 Q. Have you found such historical references
22 to cattails anywhere in the work you did to produce
23 your handbook?
24 A. There are -- I think I have stated in the
25 handbook that the references to cattail are that
218
1 cattail is not -- has never been in the original
2 Everglades an important component of the ecosystem.
3 John Davis shows an area which I'm not sure
4 is on this map where a considerable cattail had moved
5 in and its orientation is such that it looks to be
6 related to the fact that the canals are there. It
7 happens to be between canals, but it could be the
8 disturbance factor was just between the canals.
9 Q. Isn't that patch up in the EAA, the current
10 EAA, between canals?
11 A. It may be in the EAA. It's my recollection
12 it just extends down to that area. Right now I'm
13 just trying to recall matching maps without any
14 control.
15 This is an area where I can speed things up
16 if you would like.
17 Q. Yes. That looks like it.
18 A. It appears that it does not extend far
19 enough south to get outside.
20 Q. Of the current boundaries of the EAA?
21 A. It's in the original sawgrass area.
22 Q. Did Davis in his effort back in '43 offer
23 any explanation for any annotation for the presence
24 of such an atypical stand within the Everglades
25 system?
219
1 A. I don't recall what he said. I don't
2 recall.
3 Q. Within your materials there was a document
4 that had on it a sticker from another deposition,
5 Pete Rhodes' deposition. It was his deposition,
6 Exhibit 19. Where did you acquire that document?
7 A. I believe that was in a package of material
8 that I received from Hopping, Boyd, Green & Sams.
9 Q. Have you reviewed it?
10 A. No.
11 Q. Have you reviewed any deposition materials
12 in this case either in preparation for your
13 deposition here this week or for general background
14 information?
15 A. You mean documentation that has been
16 developed?
17 Q. Either the transcripts of someone else's
18 deposition or materials produced as part of someone's
19 deposition.
20 A. No, I have not.
21 Q. Have you assisted in the preparation of
22 anyone for their own deposition?
23 A. In the sense that Ed Downing and I have
24 talked back and forth about our various areas of
25 expertise, other than that I have not assisted
220
1 anyone.
2 Q. You didn't talk to him last night, did you?
3 A. No, I did not.
4 Q. There are some data compilations and
5 spectral bands plated in your materials. Do you know
6 what the source of these are, TEL number 1781?
7 A. My assumption is I would have received that
8 from Hopping, Boyd, Green & Sams. And I have not.
9 Q. Do you know what that is?
10 A. No.
11 Q. You have another document marked as
12 deposition Exhibit 20 in Toth deposition, a
13 memorandum from Michael Macena at the Water
14 Management District analyzing water quality and hydro
15 data from WCA-2A.
16 Have you reviewed that document?
17 A. I have looked at that document. It has
18 been a while since I looked at it, and I don't recall
19 the details of it. I have looked through this
20 document and my recollection of it is these are not
21 my notes on it. I have essentially scanned that.
22 Q. Are you using it in any way in preparation
23 of your testimony in this matter?
24 A. I would like the opportunity to further
25 review that article.
221
1 MR. CESARANO: Mark that Exhibit 7.
2 (The document referred to was thereupon
3 marked Exhibit 7 for Identification.)
4 BY MR. WATTS-FITZGERALD:
5 Q. Also contained was the cover page -- what
6 appears to be a synthesis report dated November '90
7 that was Exhibit 6 to the Neeley deposition of
8 3/30/93. An evaluation of refuge habitats and in
9 relation to water quality, quantity and hydroperiod.
10 Are you familiar with the document that was behind
11 the cover page?
12 A. Yes.
13 Q. Do you have the whole report?
14 A. Yes.
15 Q. Any problem with not producing the whole
16 report unless you have marginally annotated that
17 report?
18 A. I have not.
19 Q. Have you reviewed the report?
20 A. Lightly reviewed the report. I haven't
21 read it thoroughly, but I looked all the way through
22 it. I looked at all of the graphs.
23 Q. Have you looked at all the material
24 analyzing the vegetative cover in Loxahatchee?
25 A. Yes.
222
1 Q. Have you compared the results of the
2 synthesis reports from 1990 when the results you
3 obtained from the TMM imagery?
4 A. No, I haven't.
5 Q. Do you plan to do that?
6 A. Yes.
7 Q. When do you expect to have that done?
8 A. I expect to have that done by the end of
9 this week.
10 Q. The next document is Exhibit 1 to the
11 Harvey document, 1/4/93, a June 27, 1991 letter
12 signed by Tom, not me, addressed to Richard talking
13 about imbalance definitions.
14 Have you reviewed that document?
15 A. Yes. I read this.
16 Q. Are you intending to rely on it in
17 preparing or formulating your testimony in this
18 matter?
19 A. Yes. I would intend to be able to say
20 whether or not I agree with this definition of
21 imbalance of flora and fauna.
22 Q. And what is the basis for your expertise in
23 formulating such an opinion?
24 A. I think that my work in putting together an
25 evaluation procedure and matrix for the function of
223
1 the Everglades habitat based on literature is a way
2 of getting at the imbalance of flora and fauna. So I
3 would expect that I could have comment on the
4 definition of imbalance of flora and fauna.
5 Q. Do you understand yourself to be designated
6 as a witness in that area in this case?
7 A. I do not understand myself to be designated
8 as a witness.
9 Q. Why do you feel that you will formulate an
10 opinion to be expressed at the hearing on that
11 subject?
12 A. If asked.
13 Q. Am I asking the wrong guy?
14 MR. WATTS-FITZGERALD: Counsel, have you
15 designated this witness to testify in that area?
16 MS. RAEPPLE: He hasn't been asked to
17 formulate an opinion on that subject for this
18 hearing.
19 MR. WATTS-FITZGERALD: I assume it's safe
20 to say that should you alter that we will be
21 provided due notice?
22 MS. RAEPPLE: Yes.
23 BY MR. WATTS-FITZGERALD:
24 Q. You had within your materials Exhibit 14
25 from the Swift deposition. Do you know who Swift is,
224
1 Dave Swift?
2 A. Yes.
3 Q. Are you familiar with him?
4 A. I don't know him personally. I know what
5 work he has done on periphyton.
6 Q. Have you reviewed his work on periphyton in
7 2A?
8 A. I am familiar with his paper. That's in a
9 yellow volume by the Miami Geological Society in
10 1984. "Environment of Southern Florida Present and
11 Past," I believe the title is.
12 Q. Are you relying on this document in any way
13 in formulating your opinions in this matter?
14 A. I read that document. I don't really
15 recall the nuts and bolts of it.
16 In that I'm not an expert on nutrients
17 themselves, I would suppose that I can't rely on that
18 for personal knowledge. I looked at that.
19 Q. There is another set of Ken Rutchey's
20 papers and documents. We covered those and you
21 indicated you don't intend to rely on those or you
22 have not as yet.
23 Does that fall in the same categories as
24 Dr. Jensen's materials and the synthesis report from
25 1990, that you plan to review and employ those?
225
1 A. I intend to look at Mr. Rutchey's
2 methodology for determining vegetation cover types in
3 his map.
4 Q. When do you expect to complete that?
5 A. Well, I hope now that we have some slides
6 to look at, I hope to do that when -- I intend to be
7 in Kennesaw, Georgia tomorrow and hope to be able to
8 take a look at those tomorrow.
9 Q. As I understand your area of involvement in
10 this and sort of extrapolate that to what Ken Rutchey
11 and company did, Rutchey/Vilcheck and Dr. Jensen,
12 will your review of that work be limited to a
13 reassessment, if you will, of his ground truthing
14 effort?
15 A. That work, the major component for me to
16 look at, yes. Other aspects of it would be in the
17 expertise of Mr. Darling.
18 Q. So looking at the digitized data and the
19 methodology of production would be Mr. Downing's
20 responsibility, then?
21 A. That's correct.
22 Q. So you are going to look and see when he
23 said a certain location showed bull rush, for the
24 sake of an example, that really was; and that your
25 judgment of his assessment of percent cover, that
226
1 sort of thing matches or doesn't match?
2 A. Right.
3 Q. I suppose somebody could do that on your
4 work using your photos?
5 A. Yes. I think we have identified, though,
6 that to look at photos that look laterally, that it's
7 tough. It's much better to go to the field notes. I
8 would prefer seeing Mr. Rutchey's field notes. But
9 knowing the limitations of photographs, that I think
10 it can be useful for me to look at the photographs.
11 Q. So photos are useful but can be misleading,
12 then?
13 A. Yes. That has to do with the resolution of
14 35 millimeter photography.
15 Q. And even the overhead shots, for example,
16 that you have, assuming Mr. Rutchey has those as well
17 in his materials, depending on the altitude and the
18 focal length and the ambient characteristics, that
19 may or may not help you in making this identification
20 of --
21 A. It remains to be seen what he has in the
22 photographs. But if he can clearly show where the
23 actual site was in an aerial photograph, that is very
24 helpful. And the patterns of vegetation are
25 frequently a good sign of what the species are.
227
1 Q. In your photos I was unable to identify the
2 precise landing spot from your overhead shots. Would
3 you agree with that?
4 A. Yes. Well, in terms of the percentage. I
5 this there are a lot of them where you can see. We
6 made an attempt -- not an attempt, when we took over
7 we circled the site.
8 Now, on the first time around we tried to
9 circle the site so that Mr. Downing could see it out
10 of his window and videotape it. We then reversed our
11 circling pattern so that I could see it out of my
12 window and take it with a 35 millimeter camera. If
13 there were room in the helicopter I would have
14 squeezed over to Mr. Downing and tried to do it at
15 the same time. But occasionally I lost orientation
16 and you can't see the marks.
17 But there are a number of them where you
18 can see the pontoon marks.
19 Q. If someone were attempting to assess one of
20 your characterizations of percent cover or Richard
21 Darling's assessment of percent cover, they would
22 need to be assessing the same 75 square meter blocks
23 because that's what you were assessing, correct?
24 A. Right.
25 Q. You were not assessing the field of view of
228
1 the video camera or the 35 millimeter camera when you
2 were in the air, you were supposed to be assessing
3 the 75 meter blocks presumably centered on the
4 chopper landing point, assuming the chopper landed
5 dead center in the nine pixel grid because your
6 location was set in advance?
7 A. No. No. The landing places are set by our
8 desire to hone in on an area of vegetation that we
9 considered to be instructive in the process, and the
10 pixels then were generated for the pixel that is on
11 that site, plus the one around -- that's incorrect.
12 That methodology I'm talking about was for the random
13 sites for the field check.
14 The landing site shown for the ground truth
15 purposes on our grid are just a dot with a triangle
16 or just a triangle and the location being in the
17 center.
18 Q. You did visit in the field the random
19 sites?
20 A. I did not.
21 Q. You confused me for a second there with
22 something you said. I think I have it now.
23 A. Okay.
24 Q. In your assessment, then, of the percent
25 cover as it appears in the legend along with these
229
1 maps vegetative maps, were you still even then at the
2 time of the ground truthing selecting the sites
3 limiting your analysis to the immediate 75 area?
4 A. Yes. Necessarily so. In order to have
5 established the true vegetation for that point, that
6 will become a pixel in the image.
7 Q. Would you agree, then, it's going to be
8 pretty hard for somebody just using these photos or
9 in the videotape lacking the perspective you have
10 with binocular vision standing on the pontoon of the
11 chooper to replicate your judgment?
12 A. I certainly understand that. I understand
13 how that applies to the pictures that Mr. Rutchey
14 took.
15 Q. So that's an inherent limitation we just
16 have to sort of cope with somehow?
17 A. Right.
18 MR. WATTS-FITZGERALD: Let's take five
19 minutes.
20 (Thereupon, a brief recess was taken,
21 after which the following proceedings
22 were had:)
23 BY MR. WATTS-FITZGERALD:
24 Q. Would it affect your opinion as to the
25 significance of the burn in your interpretation of
230
1 its effect on the spectral images in 2A if I
2 established to your satisfaction that the burn, in
3 fact, occurred in mid June 1990?
4 Do you recall we were discussing yesterday
5 how many growing seasons and its impact on
6 interpretation?
7 A. Essentially three growing seasons. The
8 rest of 1990, okay, based on what we saw on the
9 ground that makes reasonable sense. Looking at it
10 from the aerial photographs it seems like it must
11 have been later than that. But I'll factor that into
12 my thinking.
13 But again, the accuracy check that we are
14 doing will tell us how well we performed.
15 Q. Perfect segwey. That's my next question.
16 What exactly is the accuracy check that you are
17 performing? You mentioned it a couple of times
18 yesterday but I don't think you actually described
19 the process you are going through and what the result
20 will look like or how was it expressed?
21 A. I believe we discussed it in detail. The
22 accuracy check involves the use of the color infrared
23 aerial photographs aligned on a matrix of the 2A site
24 so that we can pick out -- accurately pick out sites.
25 The randomly generated sites that were identified on
231
1 the matrix for accuracy check then were -- are
2 visible on those aerial photographs. The aerial
3 photographs are first used against our known ground
4 truth sites so that we gain confidence in our ability
5 to interpret the aerial photographs, and then
6 subsequent to that step used to assess vegetation
7 cover at the accuracy check points that are randomly
8 generated points, which now is some 70 stations in
9 all.
10 Q. We had a failure to communicate, largely my
11 fault.
12 How, if at all, will you attempt to
13 quantify the accuracy levels of the vegetative maps
14 that will be generated for this case?
15 A. All right. The information is -- that we
16 retrieved from color infrared aerial photographs is
17 checked back against our digitized results, digital
18 imagery results to find out if, in fact, the image
19 classified the area the same way we classified it by
20 looking at the aerial photographs.
21 If we are on, that's a confidence check.
22 If we are off, that's initially in a way a reason to
23 check further and see why. But in general if there
24 isn't some compelling reason, then you are stuck with
25 the fact that you missed it. That will help give us
232
1 a percentage confidence.
2 If out of 70 points 50 are correct and 20
3 are wrong, I don't know what the map is, but that
4 would mean we had a certain percent confidence in the
5 accuracy of our map.
6 Q. As you described it, would that give you
7 what is referred to in the remote sensing
8 interpretive field as a user's accuracy or producer's
9 accuracy?
10 A. I'm not familiar with the terms. I think
11 that probably that's something Mr. Downing is going
12 to answer.
13 Q. You anticipate a quantified percentage?
14 A. Absolutely.
15 Q. That was the question I was trying to ask.
16 I was pretty sure we had not gotten to yesterday.
17 A. Yes.
18 Q. Artfully buried in one of your documents
19 was a draft not for distribution. It's TEL number 18 --
20 could be 35 or 85. I think it's 1885. It goes on
21 for some length, detail. Number 00002534.
22 Do you know any of those folks?
23 A. I know the names.
24 Q. Bob Doren?
25 A. Yes. I don't recall. Tom Armentano, I
233
1 have talked to him on the telephone.
2 Q. Do you know Dr. Ron Jones?
3 A. I have heard the name. I don't know him.
4 Q. Have you reviewed that particular document?
5 If you need to look at it --
6 A. Yes. I have looked barely through this
7 document to the extent where I have to say that I
8 have not given it sufficient review.
9 Q. Do you plan to review that in conjunction
10 with your final preparation of testimony or opinions?
11 A. I would like the opportunity to review
12 that, yes.
13 Q. In one of the comments you received or sent
14 out on to the St. Lucie Press that was March of '93
15 was some revisions to the bird section which added
16 the subsection titled, "Threatened and Endangered
17 Species," and in that revision you stated what would
18 become page 152. I didn't cross-check it last night
19 with the most recent version, but I will just to make
20 sure.
21 A. There has been a minor revision in that
22 particular area to insert some information about how
23 far birds fly from rookeries to foraging areas.
24 Q. On page 152 of your most recent version of
25 the book, and the middle paragraph of the page starts
234
1 out, "Most rookeries of the Everglades were formally
2 located in southern parts of the ecosystem."
3 Are you aware of a contrary view expressed
4 by some experts that, in fact, there were substantial
5 rookeries in the Loxahatchee area and south through
6 the historic Everglades that are now the water
7 conservation areas that are not well documented in
8 the early Audubon literature because of their
9 inaccessibility?
10 A. I have wondered about that. I have not
11 seen documentation on that. I have to admit it makes
12 good sense. I am puzzled myself why Ogden and most
13 recently the paper that involves Gunderson on
14 experimental changes in the ecosystem, that paper
15 talks about the rookeries. It makes sense there
16 would have been rookeries where there were tree
17 islands and slough habitat.
18 Q. Which according to, for example, Davis and
19 some of the 1880 Department of the Army, Department
20 of War maps existed well up into the Lake Okeechobee
21 area historically?
22 A. Is that John Henry Davis, 1943?
23 Q. Yes. And the 1880 maps that were produced.
24 A. I'm not aware of those particular comments,
25 but that makes good sense.
235
1 Q. Well, in your review of the literature, did
2 you come across any of the anecdotal accounts of the
3 Seminal Wars?
4 A. No.
5 Q. Never looked at the discussion of the
6 Everglades and its impact on the conduct of the wars
7 and ecology and habitat?
8 A. None other than what references would be in
9 the more modern articles that I have read.
10 In that regard, rookeries in the northern
11 Everglades I'm aware there is improvement in bird
12 nesting, wading bird use of the Loxahatchee in recent
13 times which is encouraging.
14 Q. Are you referring to -- you said wading
15 birds?
16 A. Yes. Snail kite, also.
17 Q. So when you say in that paragraph many of
18 the birds that formerly nested in the park and moved
19 into WCA where newly established rookeries have been
20 unstable, in fact that may not be a -- they may not
21 be newly established but more correctly
22 re-established rookeries if, in fact, as you seem to
23 think might have been logical?
24 A. This is following John Ogden -- and the
25 initial writing of that followed a talk that John
236
1 Ogden gave about 30 years ago.
2 Q. Isn't it fair to say that most of our
3 knowledge of the scope of rookeries at the turn of
4 the century and earlier are related to efforts either
5 to A, harvesting plumage or B, stop people from
6 harvesting plumage?
7 A. I believe that's correct.
8 Q. And it's therefore reasonable that since
9 there were no roads across the Everglades during that
10 period of time and traveling the interior was
11 difficult in the absence of the airplane engine,
12 harvesters would operate from Florida Bay and up the
13 few sloughs by flat bottom boats, et cetera,
14 addressing the largest congregation of easily
15 accessible Ibis that they could, would you view that
16 as a fairly reasonable supposition?
17 A. That's reasonable.
18 Q. And certainly the harvest patterns support
19 that?
20 A. Yes.
21 Q. And, in fact, the efforts by Audubon in the
22 establishment of their quasi rangers to protect
23 certain sites follows that pattern?
24 A. Yes.
25 Q. Were you aware there are historical
237
1 accounts available of the existence of substantial
2 rookeries in the area of the historic Loxahatchee
3 slough and the current day Loxahatchee National
4 Wildlife Refuge which were, in fact, subjected to
5 some minimal harvesting but were so difficult to
6 access that they never received the attention of the
7 far south Everglades rookeries?
8 A. Makes good sense. If that's true, I'm
9 pleased to hear it.
10 Q. In that same amendment or updating, there
11 is some discussion of -- I think it goes on to page
12 153, the middle full paragraph in the second
13 paragraph in the snail kite section talks about the
14 specialized diet, extremely long hydroperiod marshes
15 that contain sufficient apple snail populations and
16 where the snails are visible and the water surface is
17 not obstructed by dense vegetation.
18 Why is it necessary for the water surface
19 to be relatively unobstructed to support snail kite
20 populations?
21 A. The snail kites pick up their prey by
22 flying down to the water surface. If there is dense
23 vegetation they don't do well, so they are
24 obstructed.
25 Q. I think you said yesterday as well that the
238
1 snails themselves, based on some minimal research you
2 were familiar with, while they may lay their eggs on
3 cattail are not found in heavily vegetated areas?
4 A. The particular snails that are referenced
5 in that report that I used as a basis, which is in
6 the chapter by Steve Davis, those particular snails I
7 don't believe include the apple snail. There are no
8 apple snails. There was the ram's horn pond snail,
9 three other genre of very small snails.
10 Q. If small snails were not generally found in
11 those habitats, would you as a professional biologist
12 be willing to infer that the larger apple snail -- I
13 mean only one of the snails you mentioned is really
14 of the size of the apple snail and not --
15 A. The ram's horn is considerably smaller.
16 The apple snail is much larger. The apple snail has
17 one advantage over some of the other snails in that
18 it is an air breather for a good bit of its oxygen
19 intake. So presumably it could inhabit water that
20 had less oxygen. That may be one of the factors that
21 is limiting to the other snails.
22 Q. Have you ever seen apple snails in dense
23 cattail vegetation?
24 A. I think I remarked yesterday that I have
25 seen apple snail eggs on cattails, but I don't recall
239
1 where that is. And, no, I have to admit I haven't
2 looked for or seen them.
3 Q. My understanding of the propagation of that
4 species, if I recall correctly, is that the apple
5 snail hauls itself up and lays its eggs. Very
6 shortly the larvae --
7 A. Juvenile snails.
8 Q. -- have to put it back into the water
9 pretty quickly?
10 A. That's correct.
11 Q. So I guess would it follow, then, that the
12 mature apple snail, being roughly two inches across,
13 would have to be able to reach the stalk of the
14 cattail relatively unembedded in order to lay its
15 eggs, and one would then I think logically -- tell me
16 if it's not logical -- that's going to happen at the
17 edge of the slough, not deep within the cattail
18 stand?
19 A. Typically a slough habitat is one that has
20 a long enough hydroperiod that it's conducive to the
21 snail's persisting. Therefore the edge of a slough
22 where there is emergent vegetation is a prime
23 location for laying the eggs. I think that the space
24 between plants even in fairly dense vegetation is
25 sufficient for the snail to crawl around. I don't
240
1 think that would be a limiting factor.
2 But in a number of the areas where the
3 vegetation is very dense such as sawgrass, that the
4 hydroperiod isn't sufficient for maintaining apple
5 snails.
6 Plus the fact that the ability to become
7 distributed, that Earl Rich has talked about wind
8 blown of the dense vegetation acts as a filter for
9 that sort of transport. It stops it.
10 Q. Dr. Tomlinson from Harvard University
11 offered some commentary on one version of your draft
12 sometime back. Do you recall that?
13 A. Yes.
14 Q. Do you think his criticism that you tend to
15 focus, as others in the past have, on the Everglades
16 on the fauna as opposed to the flora is well taken?
17 A. I did not take it well. I thought that
18 someone who started out basically as a zoologist, I
19 did a pretty good job covering the flora. I don't
20 remember if my revision was after his comment. But I
21 remember even putting in some more details about how
22 sawgrass grows and so on. It may have been in
23 response to his comment.
24 But I had labored quite heavily to make
25 sure there was good information on mangroves,
241
1 specific information about species and so on. So I'm
2 going to have to have a word with Barry Tomlinson
3 when I see him next. I disagree.
4 Q. He himself authored a book on mangroves?
5 A. Yes, that's correct.
6 Q. Maybe there is a certain prejudice
7 operating there?
8 A. He is a good friend.
9 Q. Is it fair to say your focus historically
10 and your career in the Everglades has been on the
11 fauna as opposed to the flora?
12 A. Yes. My focus has been on the fauna and
13 the flora -- focus on the flora has been at the
14 understanding of the community level rather than the
15 individual plants.
16 Q. Who is Dale Twachtmann?
17 A. Dale Twachtmann was former secretary of the
18 Florida Department of Environmental Regulation. He
19 was hired, I believe, in 1990 or 1991 by Law
20 Environmental and for a while he was in the chain of
21 command at both my position and my company.
22 Q. Is he still with your company?
23 A. Yes, he is.
24 Q. At one time did you seek to persuade the
25 firm to publish your book?
242
1 A. Yes. I withdrew that fairly quickly.
2 Q. Why?
3 A. Because I considered that its distribution
4 would be small if I did that, and that I was sure I
5 could get a publisher.
6 Q. In the proposal that was made along those
7 lines, it was suggested, was it not, that the
8 publication of the book would have positive financial
9 ramifications for the firm?
10 A. Certainly.
11 Q. Was that one of your aims or intents when
12 you determined that, you were going to publish a book
13 that was more textual than photographic?
14 A. No. At the time that I made that decision
15 my consideration was -- it grew out of the
16 frustration of the inability to publish the book
17 because it was tied to very expensive photographs.
18 The suggestion to change the direction and put it out
19 as a text perhaps with black and white photographs,
20 but initially just as a text came from someone's
21 comment at the Everglades coalition meeting a couple
22 of years ago.
23 I thought initially of putting it out
24 myself as a spiral bound document and selling it to
25 people like the Everglades colleagues thought I could
243
1 sell 300 copies probably very easily that way.
2 However, in starting revisions that would
3 make it be able to stand alone as a text rather than
4 a text accompanying color photographs, I recognized
5 that after a while that I was developing a much
6 better product and that I was sure I could get a
7 publisher. So I dropped the idea of putting it out
8 myself and dropped the idea of having the company put
9 it out as a report.
10 Q. In your section on wading bird rookeries,
11 you indicate that white Ibis have been known to nest
12 in sawgrass?
13 A. Yes.
14 Q. Have any of the wading birds historically
15 or currently existing in the Everglades been known to
16 nest in cattail?
17 A. The cattail is problematic for nesting for
18 almost any bird one that doesn't last a long time and
19 it falls over.
20 The snail kite -- as a matter fact there
21 was a snail kite nest on the cover of Florida
22 Naturalist some months back where a snail kite nested
23 in cattail. There are comments in the literature
24 that those nests are not successful because they do
25 fall over. I believe that the Bittern, another
244
1 species, Bittern nests in cattail. I don't know of
2 other examples.
3 Q. So in comparison to the rookery island and
4 other habitat types within the Everglades ecosystem,
5 cattail could fairly be characterized then as
6 relatively minimal nesting value?
7 A. Yes. That would also follow with sawgrass.
8 The comment JIm Kushlan made to me of finding a
9 rookery in sawgrass was a tremendous surprise to him
10 even though he had been working with the white Ibis
11 for a period of years prior to that.
12 Q. He was the source of that statement?
13 A. Yes, personal communication.
14 Q. It was not footnoted. I was curious.
15 A. Yes.
16 Q. Have you done any personal study of the
17 issues surrounding elevated mercury levels in fauna
18 of the Everglades?
19 A. I have done no research on mercury. I have
20 only depended upon literature and personal sources.
21 Q. You indicated in your book at page 171 the
22 theory of mercury as it occurs naturally in the peat
23 soils of the Everglades. But also you state,
24 "However, air borne deposits from sources including
25 burning sugar cane fields and incineration of medical
245
1 and other waste, paint applications and fossil fuel
2 power plants are also considered to be probable
3 contributors."
4 Do you still feel that's true?
5 A. Yes. But my opinion is only based on
6 research report by KBN Consultants.
7 Q. You footnote to four different sources for
8 that statement?
9 A. That may apply to more than that. You have
10 to remember now that my referencing as stated in the
11 preface is a guide to people to help find
12 information, that this is to be used as a handbook,
13 not as a reference research document.
14 Q. In that regard, is it fair to say that this
15 is not like a refereed scientific work, then?
16 A. It's not thoroughly refereed, although a
17 great many people have read all or portions of it.
18 Q. In fact, the previous sentence I just read
19 does not refer to KBN.
20 KBN is referred to in the following
21 sentence addressing the possible inverse relationship
22 between environmental P levels and mercury content.
23 A. That source happens to be personal
24 communication with Curtis Pullman. But the other
25 references now should have been a report by KBN
246
1 Engineering in there. KBN should be No. 112. It is
2 listed J.
3 Q. So it's just a personal communication?
4 A. Yes. The final sentence is. The reason I
5 put all of that list of four references prior to the
6 final sentence is that I didn't want those references
7 to be associated with the personal communication.
8 Q. The personal communication came about as a
9 result of William Green from Hopping, Boyd and Green
10 causing Curtis Pullman to call you, did it not?
11 A. I'm not sure of the exact connection of why
12 Curtis Pullman -- I can't tie it to Bill Green.
13 Q. Let me show you your correspondence, TEL
14 1555 dated 2/21/94, and I ask you to look at that and
15 see if that refreshes your memory.
16 A. Yes, it was Bill Green. I thought it was a
17 person named Caroline Ramp, but it was Bill Green.
18 Q. And, in fact, after you drafted this
19 sentence that we just looked at on page 171 of your
20 book you sent that or a version to Curtis Pullman to
21 review and sign off or agree to because you were
22 going to reference him as the personal communication
23 source?
24 A. That's correct.
25 Q. And he said that that was his view?
247
1 A. Yes.
2 Q. And as you stated there, whatever the
3 source, a possible inverse relationship -- is that
4 terminology in your mind indicative of that being a
5 theory or one explanation from one source? How would
6 you characterize that?
7 A. I say it's possible in that a relationship
8 has been seen in data, but there has not been a
9 substantiation of that by further studies. So at
10 this point, I would not even say theory. I would say
11 hypothesis, well founded hypothesis.
12 Q. Why do you think it's a well founded
13 hypothesis?
14 A. The description that I had of the
15 relationship is very prominent. It's not as if you
16 would have to pull it out by some elaborate
17 statistical means. The high mercury content and the
18 low phosphorous areas versus low mercury constant --
19 it's quite surprising as to what was explained to me.
20 Q. Statistically?
21 A. Not statistically. Not having to pull it
22 out by statistics but by a human being viewing the
23 data.
24 Q. Making one eyeball evaluation?
25 A. Perhaps both eyeballs.
248
1 Q. You indicated that you had some background
2 in statistical analysis. Are you familiar with the
3 concept of spurious correlation?
4 A. Yes.
5 Q. And what --
6 A. That is cause and effect are not implied by
7 correlation.
8 Q. How in your conversation with Mr. Pullman
9 and in your review of this apparent correlation have
10 you insured against the spurious correlation there?
11 A. The word "hinting" was put in intentionally
12 for that purpose. Limiting that higher phosphorous
13 levels may inhibit or mitigate mercury uptakes while
14 lower levels allow for more efficient
15 bio-concentration.
16 I believe that the word "hinting" is --
17 satisfies the possibility of spurious correlation.
18 But the exact wording of it after the word hinting
19 came from Curtis Pullman, so I just used it.
20 Q. But you also indicate here that it was
21 based on -- it says "Data are limited and without
22 review."
23 Do you mean without peer review or what
24 type of review?
25 A. Peer review.
249
1 Q. You had originally written as limiting that
2 higher phosphorus levels may inhibit mercury uptake
3 and you altered that to read limiting that higher
4 phosphorous levels inhibit or mitigate mercury
5 uptake?
6 A. Yes.
7 Q. What was the scientific basis for that
8 change?
9 A. The scientific basis was purely Curtis
10 Pullman. He suggested the word "mitigate."
11 Q. Inhibit was too strong?
12 A. Yes, because that implies a direct
13 relationship, whereas mitigate could mean that
14 phosphorous does something in the environment that
15 perhaps has to do with -- indirectly with mercury
16 uptake.
17 Q. In the introduction to your book there is
18 an introduction by Marjory Stoneman Douglas. And
19 based on some of the comments in your preface -- if I
20 use the right word, your lead in -- you indicate that
21 that was drafted over some period of time or as a
22 result of working with Ms. Douglas over a number of
23 years. When did Ms. Douglas last review that
24 statement, her intro?
25 A. Well, I can't pinpoint the actual date, but
250
1 this is a picture of both, so it will appear on the
2 back cover of the book. That was taken in, I think,
3 March '91 where I showed her a couple of areas of
4 rewording to see if she had agreed with that. And
5 other than those times, I don't know exactly when the
6 last one was.
7 The only thing that had been changed is the
8 age in that.
9 Q. In there she writes about the efforts of
10 various organizations including her own, Friends of
11 the Everglades, to continue the work of preserving
12 historic water flows to the park and continuing that
13 work, and she indicated that the work must not be
14 taken for granted. I'm on page XVIII or Roman small
15 18.
16 "Continuing success requires a never ending
17 fight against the forces of agricultural and
18 commercial development. The future of the park
19 depends on the public support of these conservation
20 efforts."
21 Do you agree with that statement?
22 A. I think that that's not worded the way I
23 would word it, but I refused to change it because
24 it's her introduction.
25 Q. How would you have worded it?
251
1 A. My view is that the solving of the
2 Everglades problem should not be a fight against. It
3 should be a cooperation with to solve. That's my
4 philosophy.
5 MR. CESARANO: Can we have a minute to
6 confer on something?
7 (Thereupon, a brief recess was taken,
8 after which the following proceedings
9 were had:)
10 BY MR. WATTS-FITZGERALD:
11 Q. Your testimony on the effort to quantify
12 the accuracy of the work-product that you will be
13 hopefully providing the balance to us shortly, you
14 said that if, based on your analysis the infrared and
15 the satellite of the infrared and the satellite,
16 there is not a match with your interpretation, then
17 you say you look at the two of them and they disagree
18 with you or they don't agree, that you missed one.
19 What do you do then to resolve or do you
20 just accept it?
21 A. Obviously you want to try to see why you
22 missed it. If there is some obvious reason, then you
23 need to go back and perhaps readjust what you are
24 doing. The unfortunate part of that is that there is
25 a lot of work. Because if there is a reason for
252
1 missing that, you also have to go back and look at
2 the sites, that you did it correctly, if the same
3 kind of reasoning could apply. But mostly you just
4 want to do a learning experience to see why it is you
5 missed.
6 If you missed because you can't read the
7 aerial photograph, then you missed. And it goes into
8 the side of the score sheet that's against you. It's
9 a fact of life.
10 Q. Wouldn't the best practice to be to go back
11 out into the field and ground truth that site, that
12 spot that you are having problem with?
13 A. To improve your level of accuracy, yes.
14 That would be the best and that could end up with a
15 map that has even a higher level of accuracy than you
16 had come up with by the aerial photography method.
17 But it would be an improvement in your
18 level rather than the other way around. You have to
19 readjust how you signed this spectral signature
20 perhaps to several of these as a result of field
21 checking.
22 Q. Do you have any plans to do that?
23 A. If the level of accuracy of our map ends up
24 being satisfactory, I would project no further work.
25 If it's poor we will decide at that time what to do
253
1 to improve it.
2 Q. You have already done 2A. You have platted
3 that out. How do you feel about 2A at this point?
4 A. Preliminary results are that that map is
5 pretty good. I will not give a percentage, however,
6 because Mr. Downing is working on that.
7 Q. What percentage is good enough? Where do
8 you draw a line on that, that it's good enough? It's
9 accurate enough, we don't need to go out in the
10 field, we don't need to reevaluate our spectral
11 categories, we are done?
12 A. You can say if your map is 80% accurate
13 that is my expression, it's 80% accurate, take it for
14 what it is. If it's 90% accurate, take it for what
15 it is. If it's only 60% accurate then you would
16 remember the impression you are making and the
17 viewers of that result is not very good.
18 Q. Well, to form the basis of your opinions
19 and testimony in this case, what is the minimum
20 acceptable level for you personally to feel
21 comfortable getting on the witness stand and opining
22 about the vegetative status of a large expanse of the
23 remaining Everglades and Loxahatchee?
24 To the extent that you didn't include that
25 in the definition, what do you need?
254
1 A. I believe that I will have to defer final
2 judgment until I see what comes out here and
3 particularly how this compares with other maps, if we
4 are able to do that. I would hope that we would have
5 a map that would have at least 80% confidence, that
6 for this kind of methodology you are never going to
7 get a 100%. And at 80% you could calculate how far --
8 at any percent you could calculate how large the
9 error would be. If we determine that there is -- 10%
10 of the area is heavily cattail infested and our map
11 has an 80% accuracy, we could put brackets on what
12 that true percentage might be.
13 That comes into the statistics part.
14 That's not my area.
15 Q. But you are a user in that sense of this
16 end product. And I guess what I'm asking is at what
17 point do you no longer feel comfortable using it as a
18 basis. And I guess I don't understand why you have
19 to wait until -- you wait to see what it looks like
20 at the end to decide whether you are using it or not
21 when you've done the field work and have been in the
22 process, you produced 2A all right.
23 A. I would like to see the level of confidence
24 in the maps that we are comparing. That would
25 have --
255
1 Q. Why? What difference does it matter how
2 well or how poorly somebody else did the task in
3 whether or not you are willing to rely on what you
4 did?
5 A. My reliance is always going to be based on
6 the percent confidence. I'm relying on this that
7 it's 60% accurate, or I'm relying on it that it's 80%
8 accurate. But my reliance is going to be on the
9 percent of accuracy.
10 If it comes to the point where I have to
11 say that it's not accurate enough to determine that
12 cattail has been expanding or retracting, I'll have
13 to say that.
14 Q. Well, to make a judgment like that on
15 change you need other images from different years
16 done by either somebody else or the 1985 version that
17 you may be working on, correct? That's comparing a
18 contrast kind of situation?
19 A. Right. You have to have a frame of
20 reference to compare with.
21 Q. As of right now, what frame of reference do
22 you intend to use for that?
23 A. I understand we have a map by Rutchey that
24 would be a comparison. We are working on a
25 comparison of using this methodology with other
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1 years. The other years would not have the field
2 check. The field checks applying to this one would
3 have to be part of the system so that it's -- I'm not
4 sure of the word Ed Downing has used, but he has a
5 term for it.
6 Q. Time series?
7 A. No, uncontrolled.
8 Q. Unsupervised?
9 A. Unsupervised classification, that is right.
10 But I really would rather him explain.
11 Q. If yours comes up with 75% user accuracy
12 and Rutchey's is demonstrated to be 93% user
13 accuracy, just talking about 2A now, do you use
14 Rutchey's because it's a higher accuracy?
15 A. His was a different year. So we would use
16 his if he comes up with an area of cattail
17 infestation and we look at his accuracy and we say
18 based on that it could actually be this big or it
19 could be this big around, what his map actually shows
20 to the penny.
21 We do the same thing with our map. And it
22 would have a different level of accuracy. If we said
23 there is 10% cattail but we have 75% accuracy, we
24 could give brackets of confidence of how much that
25 cattail is. Then you look at those intervals and
257
1 compare them between the two years and maybe you have
2 no conclusion.
3 Q. So for the sake of argument, your 2A with
4 reference points less field work, the second tier
5 analysis has roughly -- at best it has one fifth as
6 many ground reference points, ground truthing? If
7 yours is less accurate than his for that area, that
8 implies you have a larger error bar?
9 A. We are going to give you the error bar.
10 Q. I understand. So your range because of
11 your error spectrum is much greater potentially?
12 A. Potentially it's greater, but it's going to
13 be what it's going to be. That's something I'm not
14 guessing at. That's something we are measuring.
15 Q. I'm not asking you to guess at that.
16 A. Okay.
17 MR. WATTS-FITZGERALD: I have concluded my
18 questioning. All we need to do is reserve our
19 right to finally redepose the witness before the
20 conclusion of discovery if, in fact, he forms
21 additional opinions or final opinions in the
22 areas that have been identified in the last day
23 and a half.
24 MR. CESARANO: Same reservation from me.
25 MS. RAEPPLE: It is my understanding that
258
1 both Mr. Lodge and Mr. Downing are anticipating
2 having their work completed before the close of
3 discovery and can be made available for
4 deposition on the last two days of discovery, if
5 that suits you.
6 If not, we will work with you to identify
7 appropriate times beyond the close of discovery.
8 MR. WATTS-FITZGERALD: In principle, the
9 United States is opposed to any discovery beyond
10 the period set by the hearing officer. The
11 relatively shortened period for discovery and
12 the onset of the final hearing is busy enough as
13 it is without trying to continue discovery
14 during that period, especially since the United
15 States and it's allied parties will have to lead
16 off the hearing with testimony addressing all of
17 these areas.
18 MS. RAEPPLE: We would be willing to make
19 these witnesses available beyond the time that
20 the hearing begins, since it is unlikely that
21 these witnesses will be testifying in the early
22 portion of the hearing. But we are willing to
23 work with you.
24 MR. WATTS-FITZGERALD: There is inherent
25 limitation in doing that in that we are not
259
1 involved in the case where there is going to be
2 the presentation of a case, then rebutting, then
3 everybody going home because of the order of
4 proof.
5 That effectively eliminates a great deal of
6 our ability to anticipate the true issues of the
7 case where there is a need to address matters in
8 the government agency's case in chief, and I
9 have just reserved our position on that at this
10 time.
11 I'm not going to agree in advance that we
12 are going to be deposing anybody during the
13 course of the hearing.
14 MS. RAEPPLE: As I said, I'll make the
15 witness available on the last two days of
16 discovery and am only suggesting if those dates
17 are inconvenient for you, we will work with you.
18 MR. WATTS-FITZGERALD: It may be
19 inconvenient for you. That's the week when you
20 are doing discovery.
21 MS. RAEPPLE: I understand that.
22 MR. WATTS-FITZGERALD: That already has
23 screwed things up, although that was probably
24 predictable. You are done.
260
1 (Thereupon the taking of the
2 deposition was concluded.)
3 - - - - - - - - -
261
1
2 I, THOMAS E. LODGE, Ph.D., C.E.P., do
3 hereby certify that I have rea the foregoing
4 deposition and that the same is a true and accurate
5 transcript of my testimony, except for attached
6 amendments, if any.
7
8
9
10 ----------------------------------
11
12
13
14
15
16 The signature above of THOMAS E. LODGE,
17 Ph.D., C.E.P., was subscribed and sworn to before me
18 this _________ day of ________________________, 1994.
19
20
21
22
23 -----------------------------------
24 Notary Public
25 My commission expires
262
1
2 CERTIFICATE OF OATH
3
4
5 STATE OF FLORIDA )
6 COUNTY OF DADE )
7
8
9 I, the undersigned authority, certify that
10 THOMAS E. LODGE, Ph.D., C.E.P., personally appeared
11 before me and was duly sworn. WITNESS my hand and
12 official seal this 8th day of April, 1994.
13
14
15 ___________________________________
16 Thomas R. Neumann, RPR
17 Notary Public - State of Florida
18 My Commission Expires: June 19, 1994
263
1 CERTIFICATE
2
3 STATE OF FLORIDA )
COUNTY OF DADE )
4
5
I, Thomas R. Neumann, Registered
6 Professional Reporter, do hereby certify that I was
authorized to and did report said deposition in
7 stenotype; and that the foregoing pages, numbered
from 177 to 260, inclusive are a true and correct
8 transcription of my shorthand notes of said
deposition.
9
I further certify that I am not an attorney
10 or counsel of any of the parties, nor am I a relative
or employee of any attorney or counsel or party
11 connected with the action, nor am I financially
interested in the action.
12
The foregoing certification of this
13 transcript does not apply to any reproduction of the
same by any means unless under the direct control
14 and/or direction of the certifying reporter.
15 Dated this 8th day of April, 1994.
16
________________________________
17 Thomas R. Neumann, RPR
18
STATE OF FLORIDA )
19 COUNTY OF DADE )
20
The foregoing certificate was acknowledged
21 before me this 8th day of April, 1994 by
Thomas R. Neumann, who is personally known to me.
22
23
________________________________
24 Notary Public - State of Florida
My Commission expires:
25
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