1 1 2 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS 3 SUGAR CANE GROWERS COOPERATIVE 4 OF FLORIDA, a Florida Agricultural CASE NOS. 92-3038 Cooperative Marketing Association; 92-3039 5 ROTH FARMS, INC.; and WEDGWORTH 92-3040 FARMS, INC., 6 and FLORIDA SUGAR CANE LEAGUE, INC.; 7 UNITED STATES SUGAR CORPORATION; and NEW HOPE SOUTH, INC., 8 and FLORIDA FRUIT AND VEGETABLE 9 ASSOCIATION; LEWIS POPE FARMS; W.E. SCHLECHTER & SONS, INC.; 10 and HUNDLEY FARMS, INC., 11 Petitioners, 12 vs. 13 SOUTH FLORIDA WATER MANAGEMENT DISTRICT, an Agency of the State 14 of Florida, 15 Respondent, 16 and 17 MICCOSUKEE TRIBE OF INDIANS OF FLORIDA; the UNITED STATES OF 18 AMERICA; and FLORIDA DEPARTMENT VOLUME 1 OF ENVIRONMENTAL REGULATION, and PAGES 1 - 211 19 the FLORIDA WILDLIFE FEDERATION, 20 Intervenors. __________________________________/ 21 22 DEPOSITION OF RONALD T. LUKE, PhD 23 24 ACCURATE STENOTYPE REPORTERS, INC. 100 Salem Court 25 Tallahassee, Florida 32301 904/878-2221 2 1 2 3 4 5 6 ___________________________________________________________ 7 DEPOSITION OF: RONALD T. LUKE, PhD 8 TAKEN AT THE INSTANCE OF: Intervenor USA 9 10 DATE: Thursday, March 11, 1993 11 TIME: Commenced at 9:00 a.m. 12 Concluded at 6:00 p.m. 13 LOCATION: Accurate Stenotype Reporters 14 100 Salem Court Tallahassee, Florida 15 16 REPORTED BY: TERRY WILHELMI, CSR Notary Public in and for the 17 State of Florida at Large ___________________________________________________________ 18 19 20 21 22 23 24 25 3 1 2 APPEARANCES: 3 REPRESENTING THE FLORIDA SUGAR CANE GROWERS 4 COOPERATIVE OF FLORIDA: 5 DONNA H. STINSON, ESQUIRE Hopping, Boyd, Green & Sams 6 123 South Calhoun Tallahassee, Florida 32301 7 8 REPRESENTING THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT: 9 PATRICK S. COUSINS, ESQUIRE 10 Popham, Haik, Schnobrich & Kaufman, Ltd. 4100 One Centrust Financial Center 11 100 S.E. Second Street P.O. Box 019101 12 Miami, Florida 33l3l 13 REPRESENTING THE UNITED STATES OF AMERICA: 14 KEITH E. SAXE, ESQUIRE 15 U.S. Department of Justice 60l Pennsylvania Avenue N.W. 16 Room 879 Washington, D.C. 20004 17 18 ALSO APPEARING: Professor Lonnie Jones 19 20 * * * * * 21 22 23 24 25 4 1 2 I N D E X 3 WITNESS PAGE 4 RONALD T. LUKE, PhD 5 Direct Examination by Mr. Saxe 5 6 7 8 9 10 E X H I B I T S 11 NUMBER DESCRIPTION PAGE 12 Luke l Curriculum Vitae 22 13 Luke 2 Comments of Dr. Luke on Draft Final Report 110 Luke 3 Memo to Mr. Green from Dr. Luke 10/2/92 117 14 15 16 17 18 19 20 CERTIFICATE OF REPORTER 211 21 22 23 24 25 5 1 STIPULATIONS 2 The following deposition of RONALD T. LUKE, PhD, 3 was taken on oral examination, pursuant to notice, for 4 purposes of discovery, and for use as evidence, and for 5 other uses and purposes as may be permitted by the 6 applicable and governing rules. All objections, except as 7 to the form of the question, are reserved until final 8 hearing in this cause; and reading and signing is not 9 waived. 10 * * * 11 Thereupon, 12 RONALD T. LUKE, PhD 13 was called as a witness, having been first duly sworn, was 14 examined and testified as follows: 15 DIRECT EXAMINATION 16 BY MR. SAXE: 17 Q Dr. Luke, I'm Keith Saxe, I am an attorney with 18 the U.S. Justice Department and I am here representing the 19 United States in Sugar Cane Growers Cooperative of Florida 20 versus South Florida Water Management District. I will be 21 taking your deposition today in this case for today and 22 tomorrow and, if necessary, some third day to be scheduled 23 for the future. During this deposition, I'll be asking you 24 a series of questions, you are required to give me your 25 complete and honest answer to each question, unless the 6 1 attorney for the Cooperative, Ms. Stinson, instructs you 2 not to answer a question. If for any reason you don't 3 understand a question, please tell me and I'll try to 4 clarify it for you. 5 Dr. Luke, would you please state your full name 6 and address for the record. 7 A Yes. My name is Ronald Thomas Luke and my 8 business address is 7600 Chevy Chase Drive, Suite 500, 9 Austin, Texas 78752. 10 Q Dr. Luke, you have been designated by the 11 Cooperative to give expert testimony in this case on 12 socioeconomic impacts of the SWIM plan and alternatives to 13 the SWIM plan, federally accepted principles and standards 14 for water resources projects, and state law requirements 15 for analysis of socioeconomic impacts of major 16 developments. 17 Is that consistent with your understanding of 18 the scope of your expert testimony in this case? 19 A Taking those broadly, yes, it is. 20 Q I'm going to hand you, just to make it a little 21 bit easier, a copy of the expert witness designation 22 excerpted from the Cooperative's witness list, so you have 23 those items to refer to. I would like you to just give me 24 some explanation, in your own words, of what each of those 25 three elements encompasses. Starting if you would, please, 7 1 with the socioeconomic impacts of the SWIM plan and 2 alternatives to the SWIM plan. 3 A I think that -- again, I didn't draft this, but 4 what I would interpret it to mean is that we have a 5 proposed project by the District which has the potential, 6 if implemented, to have an impact on the primary industry, 7 the primary economic activity in the Everglades 8 Agricultural Area, which is of course its agriculture. It 9 also has the potential to provide some new economic 10 activity, which is to say the construction and operation of 11 the storm water treatment areas. 12 Both of those effects have potential to have 13 ripples, if you will, in the sense that they can both 14 create and destroy jobs, not only in the agricultural or 15 the construction sector, but in those sectors that supply 16 the primary sectors and those households that derive their 17 incomes from all the economic activity. Those economic 18 ripples in turn can have an effect on population. If there 19 is not work to do, at least some subset of the population 20 either will want to or will have to leave the area. It 21 will have an impact upon both demands for certain public 22 services and the ability to pay for them. It will have 23 impacts on the ability of some folks to educate their kids. 24 It will potentially have other social impacts that come 25 from either better times or worse times economically and 8 1 can come from economic dislocations. 2 The alternatives that are referred to, I'm aware 3 from having read some of the literature associated with 4 this case and attended some hearings, viewed some hearings, 5 that their set of best management practices and noticed 6 that a list of those that particularly has to be adopted, 7 there is uncertainty over both the cost and the 8 effectiveness of each of those BMP's and therefore what 9 combination may be necessary to achieve certain results. 10 There is uncertainty over the effectiveness, I 11 guess I would say, of the proposed storm water treatment 12 areas on their phosphorus uptake and whether or not the 13 preliminarily specked acreage would or would not be 14 sufficient to achieve any particular desired biological 15 result. There is also uncertainty about the interaction 16 between the nutrient loadings and the impacts of 17 hydroperiod management. And if you take those things, put 18 them together, there are a lot of different ways that one 19 could fashion a management plan, if you will, for the 20 WCA's, that would each have potentially different costs and 21 different impacts. 22 There is also the question of how any of this is 23 to be paid for. The method of financing in certain 24 projects can be a very important factor in determining its 25 impacts and the distribution of those impacts, which is 9 1 also important, who is impacted, what groups, so that part 2 of what I have been trying to get a handle on is what is 3 the range of alternatives that might, vis-a-vis the 4 District's response to legislation, settlement agreements, 5 that might be called for. I understand recently there is a 6 new one having to do with a treatment plant that might be 7 used in lieu of or in conjunction with storm water 8 treatment areas. 9 Let's see, it was kind of a general question, so 10 I'm not sure whether I have answered it or not, but that 11 would kind of be my thoughts at the moment. 12 Q That's fine. The next one is federally accepted 13 principles and standards for water resources projects; 14 would you explain that for me in your own words? 15 A Yes. The question of analysis of the impacts of 16 water resources projects is not anything new. In fact, the 17 literature goes back at least into the '50's, I mean, this 18 was one of the first areas that people focused on in terms 19 of systematic policy analysis. The federal government 20 developed a body of procedure that's actually called 21 Principles and Standards for Water Resources Projects. I 22 believe it originally emerged as a document back in the 23 '70's. 24 Each of the agencies that undertakes water 25 resources projects, such as Bureau of Reclamation, Corps of 10 1 Engineers, has a set of procedures that it follows in 2 assessing a project, not only assessing its impacts, but in 3 measuring its cost benefits and whether or not it appears 4 to be on net, a project that ought to go forward. 5 Q How about the last one, state law requirements 6 for analysis of socioeconomic impacts of major 7 developments; again give me some explanation in your own 8 words? 9 A I have had the opportunity to review a 10 memorandum of law that I believe Bill Green is the 11 principal author of, concerning the interpretation of the 12 Florida water quality regulations that I believe are one of 13 the main bodies of law that underlie this particular 14 proceeding and underlie some of the events leading up to 15 this proceeding. It is my understanding that the Florida 16 water quality laws include a number of balancing 17 provisions, that is they do not require that every instance 18 of pollution be totally eliminated, regardless of the cost 19 of that elimination and regardless of the benefit of that 20 elimination. It provides for agencies to use, and I'm not 21 able to give you the entire list, but examples of that list 22 would be mixing zones, certain variances, and other, in 23 effect, approaches to enforcement that in my view 24 inherently and implicitly require a weighing of costs and 25 benefits of some sort of strict enforcement of a 11 1 qualitative or quantitative standard. And what I see 2 getting into there is a question of, in order to make a 3 decision which has a reason basis, particularly when such 4 large expenditures are being contemplated, what kinds of 5 analysis are necessary as part of the reasonable adoption 6 of a plan or regulatory scheme. 7 Q Are there any additional areas, additional to 8 the ones that are listed in that designation, in which you 9 might give expert testimony in this case? 10 A I think that there are existing ongoing or 11 planned a number of studies that touch on some of the 12 topics I have just told you about and I think that as part 13 of my work that I may be called upon to analyze those 14 studies and to form opinions about them and I may also be 15 asked to either do sensitivity analysis or independent 16 studies for the purpose of providing opinions and testimony 17 on the socioeconomic cost/benefit areas relevant to the 18 SWIM plan. 19 Q When you say you refer to studies that are 20 planned, can you be more specific? 21 A I can try, I'm not sure I know what they all 22 are. 23 Q To the extent you know. 24 A For instance, there is an ongoing study of 25 economic impacts which Hazen and Sawyer is conducting, I 12 1 understand we're supposed to get a look at sometime in the 2 next few weeks. At a meeting of economists in West Palm 3 Beach a few weeks ago, I was told by Ms. Johns that their 4 economic benefit study was, I believe her term was on the 5 back burner right now, but once they finish the impact 6 study, that that -- and I don't remember whether she said 7 it would kind of come to the front burner or it might come 8 to the front burner, but in effect I have the impression 9 that there may be additional work done on the economic 10 benefit issue. 11 I understand that there is an engineering 12 alternative that has been advanced by the District's 13 consultant regarding an alternative to STA's for phosphorus 14 removal and if that is considered an alternative by any 15 parties, then that's a whole matter that really either 16 requires additions to studies that have been done or would, 17 you know, you could call it a new study, your choice. 18 As far as the work that the League is doing or 19 the League's consultants, as I have understood their 20 testimony, they are in a role of responding and whether 21 they will do independent studies on either impacts or 22 costs, direct impacts, indirect impacts, I really don't 23 know, but if they did, then I would need to take a look at 24 those. 25 I understand that as to the water supply issue, 13 1 which is wrapped up with the hydroperiod issue, that there 2 is a planning process that is ongoing, vis-a-vis the lower 3 east coast of Florida, and that is directly intertwined 4 with the issues of hydroperiod management in the WCA's and 5 in the park and that that process really has not produced 6 final planning documents or the kinds of economic or 7 socioeconomic analysis that accompany them, and as those 8 come out, there may be something there that needs to be 9 looked at. 10 Q The water supply and hydroperiod related 11 planning that you are referring to, who is undertaking that 12 planning, as you understand? 13 A My understanding is the District is. I mean, 14 it's a public involvement process and all but, I mean, it's 15 my understanding that they are the responsible state 16 agency. 17 Q And the engineering alternative advanced by a 18 District contractor concerning STA's for phosphorous 19 removal, do you have anymore specific information on which 20 contractor, what alternatives? 21 A There are two that sound kind of similar, I want 22 to say Burns and Macullop. 23 Q There are two, as I understand it, that maybe 24 sound similar. 25 A This is something where they reported to the 14 1 District that there is a phosphorous removal technology, 2 which if I read it correctly, there are operational plants 3 in Germany and that could be considerably less expensive 4 and consume less land than the current four STA proposal. I 5 read, and I don't recall whether it was a memo or a letter, 6 but I read the communication to the District as suggesting 7 that this was worthy of further investigation. 8 Q Does this involve some kind of structural 9 facility or did you glean anymore? 10 A Yes. I mean, there were no pictures, but the 11 impression that I got from reading this was that it was a 12 waste treatment facility as opposed to another design for a 13 filtration marsh. 14 Q Earlier when you were describing the state law 15 requirements for analysis of socioeconomic impacts of major 16 developments, you indicated that you might be testifying 17 about what kind of analysis are required, you also referred 18 to Florida regulations. Is it your testimony that state 19 law requirements would govern the type of analysis that 20 would have to be done by an agency such as the District in 21 undertaking the SWIM implementation? 22 A I'm not trying to give you a legal opinion, it 23 is -- I think I need to limit what I'm saying to based upon 24 my reading of Mr. Green's memorandum of law, it appears 25 that there are certain mechanisms in the Florida water 15 1 quality statutes which appear to require weighing and 2 balancing and in effect what I'm saying is in order to do a 3 reasoned weighing and balancing, there will be certain 4 types of analysis on a major project and a major resource 5 management area like this, that would be required. 6 Now, it's my understanding that in effect the 7 Marjory Stoneman Douglas Act is an amplification or an 8 expansion rather than a basic replacement of those water 9 quality statutes. That's based on my reading of Mr. 10 Green's memo, I have not done any independent study of 11 that. But that there may be also federal laws that could 12 certainly apply. 13 Q So when you say that you understand various 14 statutes, state and possibly federal, and regulations, 15 state and federal, require certain analysis, will you be 16 testifying as to what the legal requirements are? 17 A I don't think that's the way it would work. I 18 think basically I would be looking at it from the 19 standpoint of my counsel posing to me the hypothetical or 20 the assumption, assuming that the statutes require certain 21 tests, certain criteria, certain weighing and balancing, 22 what do you believe would be the types of economic and 23 other analysis required in order to provide a reason basis 24 for advancing a plan in satisfaction of those. I think it 25 would be more that I do not think that I am being called to 16 1 opine as to what the law is, but simply what kinds of fact, 2 what kind of studies would be needed in order to support 3 certain findings or to support the reasonableness of the 4 plan. 5 Q The legal interpretation or position that you 6 would be assuming, as you put it, a basis for a 7 hypothetical or something to that effect, was such a 8 position laid out in the memorandum you referred to that 9 you reviewed authored primarily by the attorney Bill Green, 10 concerning interpretation of Florida regulations? 11 A Let me say yes, I believe it was in the sense 12 that he -- the title of that memorandum, paraphrasing, is 13 something about the relevance of economic analysis to 14 determinations under the Florida water quality statute, and 15 I'm thinking that was submitted to the hearing examiner in 16 this case. 17 MR. SAXE: Counsel, do you know if that would be 18 among the documents that were produced, is that in 19 fact the same document that may have been filed in the 20 case or does it refer to another memorandum? 21 MS. STINSON: I believe it's the memo that was 22 filed, I don't know of any other. In that it was a 23 pleading, I may not have -- he may not have even had a 24 copy, but I think that was included in what was filed. 25 17 1 BY MR. SAXE: 2 Q Dr. Luke, when we were talking a moment ago 3 about the studies that might be planned or forthcoming and 4 that you might analyze, you mentioned Hazen and Sawyer, I 5 guess it was the 20 year study on economic impact, I'm not 6 sure if you used that terminology, but is that one and the 7 same, the 10 year extension of the existing 10 year study? 8 A If you want to use that as a shorthand, that's 9 fine, but in listening to Ms. Johns, Dr. Johns' lay out 10 what she was doing, there were quite a bit -- quite a few 11 other extensions, changes, elements, other than just taking 12 and extending the previous work by 10 years, so it sounded 13 like a fairly significant revision of the previous study, 14 to me. 15 Q For purposes of these proceedings today, we can 16 assume that -- we'll use 20 year study just to refer to the 17 time frame of the study, not its relationship to the 10 18 year study. 19 A If you want to use that as just a working title, 20 I have no problem. I just couldn't agree with your 21 statement that that was the only thing she was doing was 22 extending it by 10 years. 23 Q Okay, I didn't mean to imply that. 24 You also referred to the alternative advanced by 25 the District contractor, possible water supply or 18 1 hydroperiod planning studies that might be done by the 2 District, you indicated that you knew of no studies that 3 were specifically planned at this point by the League. Are 4 there any other planned studies or possible studies that 5 you are aware of that you might be doing sensitivity 6 analysis on or independent analysis or any other kind of 7 analysis? 8 A Not that are specifically like the Hazen and 9 Sawyer study in the sense of an economic study and then you 10 have another economist come in and look at it. There is, 11 as I understand it, and I don't really know the names of 12 all the people doing this, but that there are various, 13 let's call it natural science studies going on, vis-a-vis 14 the effectiveness of the STA's or the BMP's in terms of the 15 issue of are the cattail spreading or is the cattail area 16 stable, in terms of what would be the impacts of the SWIM 17 plan on water flows and hydroperiod and things like that in 18 and of itself, and all of those have the potential to 19 provide information that would affect one's calculation of 20 costs or benefits, so as those become public or whatever, 21 then I could envision looking at those trying to see if 22 they did make a difference and then going back and trying 23 to factor that in to whatever work we had done. 24 Q The second of the three listed areas of 25 potential testimony, federally accepted principles and 19 1 standards for water resources projects, you referred to the 2 Principles and Standards for Water Resources Projects 3 manual that you said Bureau of Reclamation and Army Corps 4 of Engineers adhere to? 5 A I think what I said was that there is a set of 6 regulations that is called Principles and Standards for 7 Water Resources Projects and, I'm sorry, I don't remember 8 exactly what agency it is formally adopted under, and then 9 what I am suggesting to you is that each of the various 10 federal agencies have developed their own procedures that 11 are consistent with those principles and standards. It's 12 kind of like each agency developed its own procedures to be 13 consistent with NEPA, they all differed a little, but they 14 had to kind of come back to the Corps document. 15 Q Is it the case with these regulations as it was, 16 according to your testimony, with the Florida regulations 17 and statutes governing the analysis necessary for water 18 resources projects, that you will not be giving opinion 19 testimony about what the regulations require, but you will 20 be assuming those legal positions as background for 21 hypothetical testimony? 22 A I think they are a little bit different and here 23 is what I'm talking about there. The requirements for 24 federal agencies to justify water resources projects are 25 probably much more explicit in the various funding acts and 20 1 everything else than is the requirement in the state, 2 Florida State laws. I guess what I'm suggesting to you is 3 that the federal principles and standards and the 4 procedures that have been developed in response to them, 5 are a reference point as to what type and scope of analysis 6 federal government has required of itself in making recent 7 decisions on which water resources projects could go 8 forward with. 9 Q When you say that the federal regulations are 10 more explicit than the state, does that mean that you will 11 be providing testimony about what's required under law by 12 those federal regulations? 13 A I think for the most part, those documents in 14 terms of the categories of analysis and everything they set 15 up, don't totally, but to a large extent, speak for 16 themselves. I mean, I think that like a lot of those 17 things, they use terms that you might want to explain to a 18 hearing examiner. I think that my testimony would go in 19 some sense to looking at the final studies that the 20 District produces in the planning documents and holding 21 that up as a checklist and saying to what extent has the 22 state agency or the South Florida Water Management District 23 done the kind of analysis that would be expected of a 24 federal agency advancing major water resources projects. 25 Q So then it's fair to say that you would be 21 1 interpreting what's required under these statutes and 2 regulations? 3 A I think an interpretation is inherent there, but 4 I think that they are fairly explicit in what their 5 requirements and categories are and, again, I think the 6 metaphor I would use is more the checklist concurring what 7 the District has done with the types of analysis that are 8 contemplated in federal. 9 Q It's your opinion that the checklist is fairly 10 clear, as you have put it, self explanatory, but 11 nevertheless, you might be presenting that checklist, if 12 you will, and interpreting it? 13 A Right. Interpreting in the sense of trying to 14 explain what pragmatically is required or what has been 15 required in various federal studies and maybe if there are 16 terms in there that might be technical economic terms 17 given, trying to make those clear to the hearing examiner. 18 Q Would you be making any reference to any 19 judicial decisions interpreting these requirements, 20 regulations, statutes? 21 A In the sense of those as annotations to the 22 rule, I suppose that's possible. I don't have any in mind. 23 Q We'll move to your curriculum vitae in a moment, 24 but before we do, while we're on this topic, I notice that 25 you hold a law degree, a Doctor of Jurisprudence, is that 22 1 correct? 2 A Yes. 3 Q Are you a practicing attorney? 4 A I'm a licensed attorney and in my conducting my 5 business I suppose I practice upon myself, but I don't hang 6 out a shingle and explicitly sell legal services. 7 Q Okay, thanks very much. 8 Dr. Luke, did you bring a curriculum vitae or 9 resume with you today? 10 A I did. 11 Q May I see it, please. 12 A (Witness complies.) 13 (Luke Exhibit 1 marked for identification.) 14 BY MR. SAXE: 15 Q Dr. Luke, is this curriculum vitae complete? 16 A I think it's reasonably complete. I haven't 17 continuously updated it with every assignment and project 18 that we have done, but I think it gives a fair 19 representation of the type of activities I have been 20 involved in from a consulting standpoint. It does not 21 include on here, I notice, my role in another company which 22 is called Health Benefit Management, and I'll be happy to 23 supplement it, if you wish, on that score. 24 Q Dr. Luke, on page 2 under Professional 25 Experience, the fourth paragraph down, it says, "In 1986 23 1 Dr. Luke organized Health Benefit Management. " Is that the 2 company that you're referring to? 3 A That's correct. 4 Q Would you describe your educational background 5 for me briefly, starting with high school? 6 A Okay. I went to high school in Dallas, Texas at 7 Sunset High School. I left after my junior year and went 8 to Harvard. I graduated from Harvard with an A.B. degree 9 in social studies. In 1970 I entered the Kennedy School of 10 Government, in the fall of 1970; completed a master's of 11 public policy there in 1972. Took my general examinations 12 and was approved to proceed with a doctoral dissertation. 13 I began law school at the University of Texas at Austin in 14 June of 1972 and went to law school while I was writing my 15 dissertation. I completed law school in August of 1974. I 16 completed my dissertation in the fall of 1974 and was 17 awarded a PhD in public policy in January of 1975. 18 Along in, I guess the second year of graduate 19 school, I was enrolled for limited purposes at Boston 20 College and I don't know whether I was technically enrolled 21 at MIT or not, for purposes of participation in their 22 Reserve Officers Training Program. 23 Q The graduate or advanced degrees that you have 24 in public policy, a master's from JFK School of Government 25 at Harvard and a PhD from that school also, and the J.D. 24 1 from University of Texas, are there any other advanced, 2 graduate or professional degrees that you hold? 3 A No. 4 Q Would you describe for me what is entailed in 5 the discipline of public policy that you have a master's 6 and PhD in? 7 A Sure. This is a program that was set up, I 8 believe the first class was the fall of 1971. Harvard, 9 since the 30's has had a master's in public administration 10 program through what was then known as the Littower Center, 11 and they decided in the late '60's to organize a -- that 12 was a mid career program -- to organize a regular graduate 13 program that would be devoted to training people for policy 14 analysis and to give them an interdisciplinary basis that 15 would be appropriate to analyzing public policy questions. 16 They developed a core curriculum -- I'm telling you kind of 17 what the program was at the time I was in it, I'm not 18 telling you exactly what it is today, because I don't 19 know. They developed a core curriculum that consisted of 20 graduate level economics, it was taught when I was there by 21 Tom Shelling; graduate level statistics that was taught by 22 Fred Mostelick; analysis of political institutions that was 23 taught by Richard Newstat and Grant Mallison; operations 24 research and decision theory that was taught by Howard 25 Rayfa and Richard Sechauser; and then policy analysis 25 1 project that was overseen by a number of other faculty 2 members, one that had been an associate director of office 3 of management and budget and was intended to integrate all 4 of this into applied projects. In the second year, they 5 developed a number of electives that carried those things 6 forward. They also allowed cross registration with, for 7 instance, the Harvard Business School, graduate programs at 8 MIT and other Harvard graduate schools, law school and 9 school of design, so forth and I took a mixture of those 10 programs. Did in effect a thesis in the second year, one 11 could then sort of stop with a master's and that was a 12 perfectly good end point, an MPP being thought of as 13 similar to an MBA as an ongoing professional degree, or one 14 could decide to go on and get a doctorate by taking the 15 formal examinations and completing a dissertation, which is 16 what I decided to do. 17 Q What was your dissertation on? 18 A My dissertation was on analysis of the shifts in 19 mental health policy that were occurring in the early '70's 20 in Texas and in three other states. 21 Q Which states were those? 22 A California, Colorado and Wisconsin. 23 Q Did you specialize in any particular aspect of 24 public policy in your education? 25 A I would say basically that I have specialized in 26 1 the ability to conduct interdisciplinary, multi- 2 disciplinary analyses of fairly complex public policy 3 matters. I have, over the years, done studies and analysis 4 that have covered a wide range of industries, but most of 5 those, if you look at what was done, would involve an 6 application of many of the same types of tools to those 7 different industries, analytical tools, so I think that the 8 specialization, if you will, is more in the tools and in 9 the implementation in multi-disciplinary studies than it is 10 in say a specific industry or a specific policy topic. 11 Q What are those analytical tools? 12 A Well, I think they are pretty much the ones that 13 I laid out, economics, statistics, certain decision theory 14 and analysis of organizations and political institutions. I 15 mean, under each one of those obviously there are whole 16 fields. I have done a lot of work in the area of impact 17 analysis of looking at both very local and regional 18 economies, looking at economic growth issues and 19 alternative sources of growth. I have looked at, in 20 effect, cost/benefit analysis in a variety of settings. I 21 have also looked at how you incorporate natural science 22 type analysis into policy analysis in environmental and 23 other areas. 24 Q With reference to the areas in which you have 25 been listed as an expert witness in this case, which 27 1 courses did you take that -- or what courses did you take 2 that relate directly to the work you're doing in this case? 3 A That relate directly, well, I would say all of 4 the public policy core curriculum relates quite directly. 5 Going back into undergraduate courses, I have graduate 6 courses in agricultural economics, in analysis of 7 infrastructure projects through transportation, various 8 micro and macro economic courses, public finance. 9 Q In any of those courses, did you deal 10 specifically with the methodologies for performing economic 11 impact analyses? 12 A Yes. 13 Q Which courses would those have been? 14 A The ones that I have just listed, I mean, all of 15 them involve some of those techniques. 16 Q So for instance in your operations research and 17 decision theory course work, you studied about the 18 methodologies for performing economic impact analyses? 19 A Right. One of the specific areas that that 20 dealt with was the whole question of decision making under 21 uncertainty and things like use of decision trees, that's a 22 formal aid to this kind of thinking, but here you have the 23 situation where you have various opinions about what will 24 and won't work in terms of accomplishing whatever water 25 quality goals we have and you have clearly here a situation 28 1 that is decision making under uncertainty and under 2 substantial uncertainty, so part of the cost/benefit 3 analysis here gets into, should get into looking at the 4 different scenarios about what could happen if various 5 measures were taken and trying to come up with some 6 probability that attaches to those that let's us come away 7 with an expected value, if you will, in terms of either 8 what some of this is going to cost or what the benefits may 9 be. 10 Q Have you received any other training, other than 11 your academic course work, that relates directly to the 12 work you're doing in this case, seminars, clinics? 13 A Well, I feel like I have learned quite a bit in 14 the last 20 years of doing this on a routine basis. I have 15 been involved in a number of studies with a lot of folks 16 working with and for and having them work for me, that may 17 have had more depth in a certain area than I did, were more 18 specialized, and so the work that I have done has allowed 19 me to kind of continue my education on a pretty routine 20 basis in terms of deepening my understanding of the 21 techniques, limitations and where they can be employed. 22 Q Other than work experience, has there been any 23 more formal training? 24 A You know, I have been to professional seminars, 25 but if you are asking me have I taken courses, not that I 29 1 recall. 2 Q No, I'm not asking about courses exclusively, 3 courses would certainly be responsive, but also any such 4 professional seminars, clinics, colloquiums? 5 A Yes. I mean, over the years I have gone to 6 some. 7 Q Can you describe them for me? 8 A Other than generally, probably not very well. I 9 mean, there have been a number of seminars particularly in 10 the '80's on impact assessment. There have been seminars 11 that I have produced, looking at energy impacts, impacts of 12 energy projects, I mean to say, looking at impacts at 13 various coastal development projects. 14 Q The seminars that you have attended, have they 15 been affiliated with any particular association, has there 16 been any regular meetings or periodic gatherings that come 17 to mind? 18 A Not in particular. I mean, some of them were 19 like the American Economics Association or one I think had 20 to do with -- it was an engineering society, but it was at 21 a time when there was a whole section on analysis of 22 impacts on water scale projects. 23 Q Can you estimate for me the approximate number 24 of seminars on impact assessments that you have attended? 25 A My estimate, and that's all it would be, you 30 1 know, would be half a dozen over the years. 2 Q How many, again, estimate how many seminars you 3 have produced on economic impacts, you mentioned energy 4 development, coastal development, any others that would 5 fit? 6 A Right. There were two major conferences and 7 then there were, as part of the Texas Coastal Management 8 Program, literally dozens of public meetings and advisory 9 committee meetings and technical work sessions that I was 10 involved in producing. 11 Q What is your occupation, Dr. Luke? 12 A Well, I suppose I have several. I am a business 13 owner and I am certainly responsible on a day to day basis 14 for overseeing the operation of that business. I am a 15 practicing economist and policy analyst and, as I say, I am 16 a licensed attorney, but I certainly don't hold myself out 17 as a practicing attorney. Legal training, though, is in 18 many cases very helpful in understanding how a certain 19 analysis fits into a situation. 20 Q When you say you are a business owner, could you 21 tell me something more about the business or businesses you 22 own? 23 A Sure. I have been employed with Research & 24 Planning Consultants initially while I was in school and 25 then beginning in 1976 on a full-time basis. I purchased 31 1 that business in 1979 and have owned it since then. It is 2 a consulting firm that has provided economic policy 3 analysis services over the years, based in Austin, Texas. 4 We have done studies and I have been responsible in 5 participating in studies probably about over 20 states. 6 Those studies have been concerning a variety of industries 7 and policy situations, from health care, environmental 8 protection, solid waste management, general business 9 evaluations in a whole number of industries, market 10 research. The work has been from public and private 11 clients. The size of the firm has expanded and contracted 12 over the years, depending upon the type of work that we 13 were doing and whether we were doing it with folks as 14 contractors or whether we were bringing them on as 15 employees. 16 The other business that we referenced earlier is 17 Health Benefit Management. Because of the work in health 18 care consulting, it appeared that there was an opportunity 19 and a need for companies to do medical cost management, by 20 which I mean utilization review, medical case management, 21 medical bill review. In 1986, I hired some folks and using 22 the consulting firm as a base, started a company to do 23 that. It specializes in medical cost management, workers' 24 compensation area. It has grown from one employee to now 25 about 100 that work specifically for that company. That 32 1 includes quite a few nurses, a full-time medical director. 2 It is run on a day to day basis by a president and has a 3 management structure. My role is CEO and that is one of 4 general direction and goal setting and planning. 5 There is a parent company over those two called 6 Ronald Luke & Associates and it houses the accounting and 7 data processing and so forth for that and there are a 8 couple of people there that report to me. 9 Q Presently how many employees are there at RPC? 10 A If you take RPC by itself, let me count, not 11 counting me, there are about, I guess, about 14. 12 Q I got the impression that Ronald Luke & 13 Associates has approximately four employees? 14 A No. I guess we have 10 people in data 15 processing, we have nine or 10 in accounting, we have three 16 or four more in office services. The total employment is 17 about 150, maybe a little more than that now. 18 Q For clarification, when I say Ronald Luke & 19 Associates, as the parent company, you say there are 150 20 employees? 21 A The total for a consolidated basis is 150. 22 Q Would that include the RPC and HBM employees or 23 exclusive of those? 24 A Yes. 25 Q Excluding RPC and HBM employees, are there any 33 1 employees that are uniquely associated with Ronald Luke & 2 Associates? 3 A I would say there are between 25 and 30. 4 Q Have you opened any offices in Florida in 5 connection with this case? 6 A For this case, no. 7 Q Have you opened any offices in Florida within 8 the last two years? 9 A I have an employee here who is a chiropractor. I 10 don't have a separate office, he works out of his practice 11 office. 12 Q Would that be an employee of HBM? 13 A Yes. 14 Q Dr. Luke, would you describe for me briefly your 15 employment history in chronological order, starting with 16 your undergraduate years; you have given me, I think, some 17 pieces of it, but maybe if you want to go through it 18 systematically. 19 A You kind of lost me, starting with my 20 undergraduate years? 21 Q Yes, employment during your undergraduate years 22 and subsequent. 23 A Okay. Let's see, while I was an undergraduate, 24 I worked in the dining halls, worked for a student run 25 company doing market research, was a director of something 34 1 called Harvard Student Agencies, which is relatively large 2 student run corporation at Harvard. I, during the summers, 3 worked for Austin Bridge one summer, worked for Lean, 4 Tempco, Vaughan one summer doing cost analysis. 5 Q What was the name of that company, I'm sorry? 6 A Lean, Tempco, Vaughan. 7 The summer after my junior year, I guess I was 8 technically employed by the social studies department. I 9 did work with the United Nations Development Program and 10 Agency for International Development in Kenya. 11 The summer after my senior year, I was employed 12 by the U.S. Army for some basic training and was also 13 involved with some other students in an enterprise that 14 published a guide book to Boston. 15 Let's see, I was employed after my first year in 16 graduate school by a group called the Alagash Group, which 17 was a, I guess you could say a think tank, in the state of 18 Maine, that was being funded to do policy analysis of 19 alternative futures for the coast of Maine. And I had 20 another opportunity to work for the United States that 21 summer. 22 Q Who for? 23 A The Department of Defense. 24 Q Is that another Army job? 25 A Yes, it was. Let's see -- 35 1 Q Would you describe that for me a little bit 2 more? 3 A Sure. 4 Q Are you being euphemistic? 5 A Not euphemistic at all. I spent six weeks at 6 Fort Knox doing a training stint related to the Reserve 7 Officers Training Corps. 8 Q Thank you. 9 A Let's see, once I finished -- once I moved back 10 to Texas, I did some work for the LBJ School of Public 11 Affairs, helping teach a course. I also began working for 12 Research & Planning Consultants on a part-time basis. I 13 did work for the Regional Mental Health Mental Retardation 14 Center for the Galveston area, which was in conjunction 15 with my dissertation. Then on completion of school, went 16 to work for them as a director of administrative services 17 and had another interval of active military duty. 18 I left the Regional Mental Health Center in 19 19 -- the fall of 1976 and moved back to Austin and went to 20 work for Research & Planning Consultants as vice president 21 of operations and have been there ever since. 22 I guess somewhere in there I also taught a 23 course at University of Houston at Clear Lake City, having 24 to do with public budget analysis. I taught a course for 25 the U.T. School of Accounting, having to do with public 36 1 finance and budgeting. 2 Q Would those be the courses that are referred or 3 referenced in this resume on page 2, the third paragraph, 4 "He has taught courses on public finance and policy 5 analysis at the University of Texas at Austin and the 6 University of Houston at Clear Lake City?" 7 A That's correct. 8 Q I also see here there is a reference to your 9 employment as a publisher for various periodicals from 1979 10 to the present? 11 A Right. That's one thing that Research & 12 Planning Consultants has done since 1977 is we publish a 13 collection of rules of Texas environmental and natural 14 resource agencies and subsequently we have added a service 15 that covers the public utility agencies and subsequently we 16 added a publication that covers the workers' compensation 17 commission. In addition to just rules, we also provide a 18 newsletter that covered the commission meetings and the 19 activities of those agencies. 20 Q In the course of your employment or education, 21 have you worked on any projects that relate directly to the 22 work you are doing in this case? And I think for purposes 23 of clarity, it might be easiest if you would take these 24 three elements of your expertise described in the witness 25 designation in series. Maybe first address the 37 1 socioeconomic impacts of the SWIM plan and alternatives, et 2 cetera, then we can move on to the federally accepted 3 standards and the state law requirements. 4 A Okay. I guess you will have to tell me if these 5 are not as specifically related as you had in mind. The 6 undergraduate work that I did, my undergraduate honors 7 thesis is on agricultural economics and impacts of changing 8 patterns of agriculture as they relate to transiamatic 9 pastoral groups in east Africa. 10 Q Would you explain roughly who that group or what 11 that group or characterization refers to? 12 A Transiamatic means basically following the 13 water. What you have is a situation where you're dealing 14 with the interaction of the technology, the natural system, 15 which in that case is a semi-arid area to arid, the social 16 institutions in the way that those three interact. 17 In effect, what you have is a whole series of 18 people, ranging from the Somali, the Masai, Turkana, and 19 other groups who are basically pastoral people in semi-arid 20 areas. They have not historically had an institution of 21 exclusionary land ownership. In effect, what people own 22 were cattle and rights to water sources and as they move, 23 in effect, you can wander where you need to go in order to 24 get to the water source. 25 The problems that occur are that as you produce 38 1 more long lasting water sources by drilling relatively 2 basic wells, you produce zones of devastation and 3 desertification, I mean, you can see these on aerial photos 4 that in effect concentrate the cattle to get to the water 5 in the period of the year when the natural springs and 6 other what we would call lakes, dry up, and you produce, in 7 effect, a totally devastated zone. I mean, it is not 8 overgrazing, it is denuding the land. You also produce 9 increased disease and disease vector among the livestock 10 herd because instead of being spread out, you have got them 11 altogether, so any sickness is more likely to spread. 12 The conditions are very similar to west Texas 13 and New Mexico, I mean, the semi-arid areas of the United 14 States. 15 Q The natural conditions are similar? 16 A Right. In fact, most of their district range 17 officers in this kind of thing either went to Texas A & M 18 or New Mexico State, some went to U.T., but mainly went to 19 the agricultural, the southwestern agricultural colleges. 20 There is a system for managing livestock on 21 semi-arid areas that is called rest-rotation grazing and it 22 is a way to manage areas of land to in effect favor certain 23 desirable species and to prevent both just total 24 desertification and prevent or at least retard brush 25 encroaches and this kind of thing. We have mesquite, they 39 1 have something called akasha. 2 The problem is that to do rest-rotation grazing, 3 you have to have exclusionary land use institutions, 4 because part of rest-rotation grazing is the rest part, you 5 have to be able to leave an area of land alone, to keep 6 your cattle off of it and know that nobody else is going to 7 put their cattle on it. It doesn't necessarily require 8 fencing, because these are all herded cattle as opposed to 9 sort of the American west vision of the dogies running 10 around on the prairie, but it does require the ability to 11 reliably exclude people from areas for parts of the year. 12 So what you have is a question about in order to support 13 this population and I mean we're talking about a relatively 14 low standard of material living here, one might say, well, 15 we need to -- the scarce resource is water, so we need to 16 drill more wells. 17 The problem with that approach is that while 18 that will in the short run sustain more cattle and you can 19 drill wells relatively easy in this area, it will produce 20 more of an uncontrolled increase, which leads to 21 desertification, which leads to a cycle, as you get the 22 over-population, so forth, the land doesn't come back. At 23 the same time you are dealing with very basic social 24 institutions of, I mean, of their legal system, but also of 25 their whole social value system as regards this 40 1 institutions of land ownership. 2 So that the thing I was looking at there was how 3 do you go about doing change in a situation where you have 4 a relatively fragile environment, you have technology in 5 the form of water wells, in the form of vaccinations for 6 cattle, in the form of rest-rotation grazing knowledge that 7 could be applied. You have marketing issues. If you get 8 more cattle, can you move the market and sell them. 9 You had in that case substantial distrust 10 between the governing tribe, which is Kikuyu, and all of 11 the pastoral tribes and that went back hundreds of years. 12 There was some equating of trying to install land ownership 13 as a way to get the land away from them or to tie them down 14 with sort of the image of concentration camps in the 15 background. There had been a recent civil war where the 16 Somalies and Kikuyu wanted to succeed and be part of the 17 Somalies and Somalia. Many trips that I took up in that 18 area were with armed escorts. 19 So it presents some of the same issues that one 20 finds anywhere, of this interaction of natural systems, 21 technology, both technology for protection and technology 22 for development, and various social institutions and those 23 dynamics. Certainly those major elements are present in 24 virtually all of the kinds of environmental policy issues 25 that I have been involved in since. 41 1 As a graduate student -- 2 Q Before you move on, are you moving on past the 3 undergraduate honors thesis? 4 A Yeah. 5 Q Before we do that, let me ask you a few 6 questions, if you don't mind, about this. 7 A Sure. 8 Q Did economic impact analysis or socioeconomic 9 impact analysis or any flavor thereof, play any role in 10 your work in this honors thesis? 11 A Sure. 12 Q What would that have been? 13 A Well, in effect, what I was looking at was the 14 question of the proposed action -- let me just set a stage 15 for you a little bit. In terms of looking at socioeconomic 16 impact analysis, typically you are looking at some proposed 17 change in the status quo that is significant enough that 18 one wants to think real hard about what its future impacts 19 will be. So you have an existing situation, not only at 20 that point in time, but your forecast of what the situation 21 will be in the future if you do not take this action. You 22 have the nature of the proposed action and then you have 23 your forecast of what may occur if you take the action and 24 then you have the comparison of the two and the difference 25 is your impact and you can forecast and calculate 42 1 differences on a number of different variables. 2 That's in essence what this was about. We had 3 proposals to come, there were proposals to come in and 4 drill lots of wells and the question was what happens if we 5 do that, what happens if we alter the water supply, as 6 opposed to what happens now. So what I did, drawing on a 7 number of range management specialists and husbandry people 8 that were over there with AID and UNDP, was to understand, 9 as best I could, what the natural science dynamics were, to 10 understand the region, and then to basically look at what 11 happens if you put in those wells without reforming -- 12 well, reforming has a connotation I don't want to imply -- 13 without altering the underlying social institutions that 14 are necessary to do the rest-rotation grazing piece of the 15 change. 16 I looked at that and did some basic modeling, 17 this is 1969, '70 now, 10 years before, 11 years before 18 P.C.'s, so we're talking about FORTRAN programs on main 19 frame computers, so it's basic compared to what we -- and 20 difficult compared to what we could do now, but did some 21 basic modeling and came to the conclusion that if you did 22 put in the additional water, while you would spread out the 23 impact somewhat, that you would produce additional 24 desertification, because one piece of technology without 25 the other was likely to have short term benefits, but long 43 1 term detriments to that area. I haven't looked at this in 2 awhile, so I'm -- I may be remembering what I would 3 conclude now rather than exactly what I concluded in 1969, 4 but that one ought to condition the additional water 5 resources development on getting agreement from the local 6 structure, try balance structure, to institute these 7 grazing patterns. 8 Q So when you say the question is what happens if 9 we drill wells as opposed to what we do now, what was the 10 what we do now? 11 A That we not drill anymore wells. What that 12 meant was that you, if you just looked at the current 13 cattle stock, that you would continue to concentrate that 14 stock during seasons of the year and you would produce 15 these circles of devastation. I mean, sort of the dynamic 16 here was that if you did increase the number of wells, that 17 you would raise the herd population that could be 18 maintained during the wetter years, but you would then have 19 an even greater problem when you got back into a dry cycle 20 and you are concentrating much larger herds, you end up 21 with an average of more per permanent water source. 22 Q As I understand it, the proposed action in the 23 situation that was the subject of this thesis, was the 24 developmental action, it was to increase the level of water 25 development by drilling more wells and making whatever 44 1 adjustments might be made through rest-rotation? 2 A No. That was that nobody could -- you can go 3 out and drill the well next week, as I say, there is no -- 4 I mean, it's a rig on the back of a truck and you put in a 5 simple casing, I mean, we are not talking about a high tech 6 well here. The action was in the absence of the change in 7 the land ownership and land management institution, should 8 you go out and drill those wells. 9 Q So the proposed action was -- 10 A Drilling wells alone. 11 Q That was my question. 12 Are there any projects that you have worked on 13 where the proposed action was not a resource developmental 14 proposal, but rather a resource management action that was 15 proposed to remedy environmental problems? 16 A Well, this was an action that was proposed to 17 remedy environmental problems. 18 Q As I understood it, the proposed action was to 19 drill wells, which would entail environmental problems for 20 which -- 21 A No, no, that's what you don't understand. One 22 of the reasons that the central government was looking at 23 drilling these wells, was the idea that by spreading out 24 the herds, that it would reduce the perceived environmental 25 problem of a desertification and so that it was perceived 45 1 -- and certainly there might be some economic benefit, but 2 part of the reason they are wanting to do this was they 3 were concerned about some of the environmental impacts. 4 There may have been lots of other unstated, or unstated to 5 me, reasons why they wanted to get into this but, I mean, 6 that was part of it and that was one reason that the UNDP 7 and the AID folks were looking at this as possible -- for 8 possible grant funds. 9 Q So then the proposed action was effectively to 10 undertake resource development, i.e. drilling wells for the 11 purpose of securing environmental benefits? 12 A For the purpose of securing that, plus one would 13 assume that it would have some positive economic benefit, 14 if it produced a more stable kind of livestock supply 15 there. 16 Q At that point, was the mission of AID and its 17 involvement in this project, would you characterize 18 primarily as an environmental protective mission or was it 19 a sound resource developmental mission? 20 A Agricultural people, particularly range 21 management people, my experience they have a concept they 22 call sustainable yield, okay, and I don't know that it 23 would be appropriate to characterize sustainable yield as 24 either being a resource development or an environmental 25 position. In effect, what it says is you're interested in 46 1 long term yield and you only get that if you protect the 2 resource from harm and I think that the people that I 3 interfaced with were people that were from semi-arid areas 4 in the United States and that they understood and took as 5 very important this notion of promoting sustainable yield 6 agriculture in the semi-arid area. 7 Q So then it's your position that the concept of 8 sustainable yield is not a resource development concept or 9 not a resource developmental concept? 10 A No, I didn't say that. 11 Q You said, I believe, it was neither resource 12 development nor environmental protection? 13 A I think I said, and if I didn't, I meant to say 14 that it cannot be characterized as solely one or the other 15 because by the notion that you are interested in the yield, 16 you are interested in, I suppose what you could consider 17 resource development, by the fact that you are interested 18 in that yield being sustainable, you have to be interested 19 in both the continuability to get a yield from the 20 resource, but you also have to be concerned with the long 21 term viability of the resource, so I don't see those as an 22 either/or dichotomy, I mean, you really have to have both. 23 Q Are the environmental values that propel the 24 sustainable yield approach, strictly relating to continuing 25 production with the resource or are there values that don't 47 1 have some underlying economic element? 2 A Well, now you are asking me to get into the mind 3 of a whole bunch of farmers and ranchers, I don't know that 4 I can do that. I would say it this way, sustainable yield 5 is a management philosophy, you are managing the land in 6 this case to produce and to favor production of certain 7 types of plant and in some cases animal species. I mean, 8 it is a concept of managing the resource to get to achieve 9 certain outcomes and, presumably, those outcomes, if you 10 are willing to devote management enterprise efforts to it, 11 have some benefit. 12 Now, when you say economic benefit, certainly in 13 most cases that means cash, but it can also mean other 14 non-market benefits. 15 Q Do you believe that aesthetics is an element of 16 the values in a sustainable yield management philosophy? 17 A Well, you can -- you have multi-use management 18 and this is one of the things that comes up for instance in 19 principles of standards, I mean, it comes up in the 20 original central and south Florida project, okay, and if 21 you wanted to, there is no conceptual reason why you could 22 not define something as being more or less aesthetic in 23 deciding to manage your resource to produce that picture. 24 Q Are multi-use management and sustainable yield 25 synonymous? 48 1 A Not necessarily. 2 Q So my question was about the sustainable yield 3 management philosophy and whether it included aesthetic 4 elements? 5 A And I'm saying that it's, in my mind, they are 6 on different dimensions. Sustainable yield means I'm going 7 to produce some yield and I'm going to manage my resource 8 in a way that I can do that on a long term basis. Now, 9 long term can be defined differently, depending upon the 10 context, okay. 11 Now, aesthetics can be a yield of resource, 12 let's say that we agree that looking at an uncut forest is 13 more aesthetic than looking at cut forests, we just agree 14 to that, there is nothing written that says that's true, 15 but we take a vote and we agree with that. We can manage a 16 forestry source so that what we get a constant view of 17 uncut trees and our yield from that is our visual enjoyment 18 of looking at those uncut trees, okay. We could also 19 decide we wanted to manage that resource for maximum output 20 of lumber and we would -- they could both be sustainable 21 yield management, but they would be managing for different 22 yield and therefore the actions we would take would be 23 quite different. 24 Q To your knowledge, are there implementations of 25 sustainable yield management philosophy that involve non- 49 1 consumptive yield as you're theoretically describing it in 2 your hypothetical? 3 A I'm sorry, are there what? 4 Q Are there instances -- 5 A Yeah. 6 Q -- of implementing sustainable yield management 7 philosophies, that involve non-consumptive uses as part of 8 the yield that is sought to be sustained? 9 A Could you define what you mean by non- 10 consumptive use? 11 Q What does it mean to you? 12 A You're asking the questions, sir, I'm trying to 13 get a definition of your terms. 14 Q What does non-consumptive use mean to you? 15 A I don't use the term normally so that's why I'm 16 asking for your definition. 17 Q Is non-consumptive use a term you have heard 18 before? 19 A Gosh, I may have, I mean, you asked the question 20 and I said I don't understand the term. That was our deal, 21 that if I didn't understand, I would tell you. I have told 22 you. 23 Q That's fine. I'm asking you if you are familiar 24 with the term non-consumptive use? I'm not interested in 25 my opinion, I'm interested in your opinions. 50 1 A Well, I would be happy to give you my opinion if 2 you will define the term for me. There may be a term that 3 I sort of on a day to day basis use that may be synonyms 4 that would mean the same thing, but that's not a term that 5 I have used a great deal. 6 Q What term would you use for what you understand 7 to be the use of that term? 8 A I do not understand, I would like you to define 9 it. 10 Q So you are not familiar with the term non- 11 consumptive use? 12 A I may have seen it, I mean, I'm simply asking 13 you for a definition. I don't know that that's an 14 unreasonable request. You asked a question, I would like a 15 definition of the term you used in the question. 16 Q I'm not interested in my definition of the term, 17 Dr. Luke. 18 A Well, it's your question. 19 Q We will avoid the use of the term. 20 You are familiar with the concepts of non-market 21 valuation, is that correct? 22 A Yes. 23 Q What are the types of use values in non-market 24 valuation? 25 A What resource are we talking about? 51 1 Q Generically, in the abstract. 2 A I can't answer the question. Different 3 resources have different non-use -- non-market valuations. 4 Q You use the term non-use value, can you define 5 that for me? 6 A I misspoke, non-market valuations. 7 Q Okay, maybe we can return to this question. 8 MS. STINSON: Meanwhile could we take a break? 9 MR. SAXE: Sounds good. 10 (Brief recess taken.) 11 BY MR. SAXE: 12 Q Dr. Luke, before the break we were talking about 13 the problem in Africa that was the subject of your 14 undergraduate honors thesis, was that a problem that's 15 known generally as a common property resource problem? 16 A Sometimes called a commons problem, yeah. 17 Q Have, in your list of projects and studies, are 18 there any that you have done that relate to an externality 19 problem? 20 A Oh, in the most generic sense, a goodly number 21 of those projects would have externalities. Now, whether 22 the externality was the focus of the study or not, I'm not 23 saying that it was but, I mean, any of those major projects 24 have externalities. 25 Q In the interest of time, rather than going 52 1 through the list of projects, it is a substantial list, if 2 you could for me focus in on those projects that have 3 involved economic or socioeconomic impact assessment of 4 resource management actions that are proposed to remedy 5 environmental problems, where the proposed action was a 6 remedial one undertaken for the purpose of remedying an 7 environmental problem? 8 A On page 3, the studies that we have done on 9 solid and hazardous waste disposal facilities. 10 Do you want me to go all the way through or do 11 you want to talk about these as we come to them? I don't 12 understand. 13 Q For right now why don't you go ahead at least 14 through the next page, exhaust this category before you get 15 to Other Economic and Statistical Studies. 16 A Sure. 17 Development of an economic assessment of the 18 impacts of a proposed high level nuclear waste repository. 19 The Louisiana natural gas study. 20 The economic and environmental studies on marine 21 terminals, on page 4. 22 Q I'm sorry, is that the "major Texas ports for 23 the U.S. Maritime Administration" or am I in the wrong 24 place? Oh, I'm sorry, "major marine terminal at Freeport, 25 Texas"? 53 1 A Right. 2 There are a number of studies that were part of 3 the Texas Coastal Management Program that I believe would 4 fit your category. 5 Q Where is that? 6 A Page 6. 7 Q Under Public Policy Studies? 8 A Right. 9 There would be something of that in the 10 development of land use policies and land use management 11 mechanisms, a 1972 study. 12 Q That is where? 13 A Still on page 6, I'm just going down 14 sequentially. 15 Part of the cost/benefit analysis on the 16 refinery development was a -- there is an environmental 17 issue there. 18 There is another study that was done of the 19 impact of a Superfund site designation on adjacent property 20 values. 21 Q Would that be the one on page 5, "Preparation of 22 an economic studies on the impact of designation of a 23 Superfund site on property values in an adjacent 24 subdivision in Houston, Texas for Ryland Homes?" 25 A Right. 54 1 Q In each of these projects or studies, you did 2 some either economic impact assessment or socioeconomic 3 impact assessment? 4 A I would say so, yes. 5 Q Did any of these involve surface water 6 management? 7 MS. STINSON: For clarification, do you mean any 8 of the ones he has already -- 9 MR. SAXE: That we have presently selected that 10 Dr. Luke has just specified. 11 A Well, several of them involve -- I mean, there 12 is a -- I'm sorry, there's another one that's not on here 13 and that has to do with an analysis of impacts of 14 regulating withdrawals from the Edwards aquifer, it's not 15 in there, which is a recent study. 16 Yeah, I mean, several of them have surface water 17 issues in them. 18 BY MR. SAXE: 19 Q How about ground water management? 20 A Yes, some of them have ground water management. 21 Q Why don't you, going back through the list, 22 identify those for me which have surface water or ground 23 water management issues? Let me strike that question. 24 If you would identify which of these involve a 25 remedy proposed to address an environmental problem with 55 1 either surface water or ground water, not just some 2 tangential connection to surface water or ground water 3 management. 4 A Well, the solid and hazardous waste facilities 5 are that. 6 Q So that would be the Browning-Ferris solid and 7 hazardous waste facilities on page 3? 8 A Right. 9 Q Was that surface or ground water or both? 10 A It's really both. 11 The kind of a waste nuclear repository addresses 12 both. 13 The Louisiana studies are concerned primarily 14 with surface water issues. 15 The marine terminal is concerned primarily with 16 surface water issues. 17 Q That's the Freeport, Texas marine terminal? 18 A Right. The -- 19 Q I'm sorry, that was primarily surface water? 20 A Um-hum. 21 The Coastal Management Program was concerned 22 with both surface water and some subsurface issues. 23 Q I'm sorry, where -- 24 A We're on page 6. 25 The state of Maine work is concerned primarily 56 1 with surface water issues. 2 The Edwards is concerned primarily with 3 underground water issues, although -- well, the two are 4 related, I mean, the actual problem occurs where the 5 underground water becomes surface water again. 6 Q Tell me a little something, you don't have to go 7 into great detail, but tell me a little bit about the DOE 8 nuclear waste repository proposal? 9 A Well, as you know, there are high level 10 radioactive wastes sitting around nuclear power plants all 11 around the country in little concrete swimming pools for 12 the most part and this is not considered to be a stable, 13 reliable long term disposal technique for that, because 14 there's, I mean, it's subject to all sorts of possible 15 problems, human and environmental, and you are talking 16 about very long life materials. So that the high level 17 radioactive waste repository was proposed as an end. Part 18 of that is there would be a release of those materials, it 19 gets into surface water, it gets into ground water and the 20 fun starts. The repository was proposed as a long term 21 solution to the safe storage of those radioactive 22 materials. 23 The one that I did work on is the one that was 24 proposed in the Texas panhandle and we looked at the 25 socioeconomic impacts of the repository. 57 1 Q Did that project relate in any way or did the 2 proposed project relate in any way to the Ogawala aquifer? 3 A One of the concerns that some people expressed 4 was if indeed this was not a safe storage formation and if 5 waste were to escape from the repository, that it might 6 make its way into the Ogawala. 7 Q So the facility -- strike that. 8 Was the proposed facility to be constructed 9 within the aquifer? 10 A No, I mean, when you say within, it was not to 11 be constructed, as I understand it, within the water 12 bearing strata of the Ogawala aquifer. 13 Q Were there any concerns about -- were there any 14 concerns implicating the aquifer, the water bearing strata 15 of the aquifer -- 16 A Yes. That's what I just said. 17 Q Excuse me, let me finish the question. 18 -- in the construction phase of the project? 19 A I'm not aware that there were concerns that the 20 construction of the repository, which is basically a 21 tunneling exercise, was going to do damage to the aquifer. 22 I think the concerns that I recall, and this has been a few 23 years ago, were that if waste were released somehow, that 24 they would migrate to and pollute the aquifer. 25 Q Was construction proposed above or below the 58 1 aquifer? 2 A Well, the aquifer underlay the area in which the 3 repository would be constructed is my understanding, I 4 don't know how deep, but it was in that same area, yes. 5 Q In the Browning-Ferris waste disposal project, 6 what was the proposed action? 7 A The proposed action was to -- there were several 8 over the years that we have worked with and the proposed 9 action was either to create or expand a municipal landfill 10 or in one case a hazardous waste injection well. 11 Q In the Louisiana natural gas development 12 project, what was the proposed action there? 13 A The proposed action was an action by the state 14 of Louisiana to assess a tax on gas coming ashore from the 15 federal outer continental shelf, upon the justification 16 that a burden was being imposed upon the state by that as 17 interstate commerce, both through the environmental impacts 18 upon their marshes and the impacts upon their 19 infrastructure. 20 Q How would it be a proposal to assess a tax 21 impelled by an interest in remedying an environmental 22 problem? 23 A Well, there logical rationale for the tax was 24 that they were going to use at least part of the money to 25 remedy the adverse impacts that, environmental impacts on 59 1 their marshes that had been occasioned by the OCS 2 development and production activities. 3 Q In the Freeport, Texas marine terminal project, 4 what was the proposed action there? 5 A The proposed action was to develop a state-of- 6 the-art chemical barge terminal that would be used in both 7 loading and unloading chemicals for the complex that's 8 located in the Freeport and Jackson area on Kretana Island. 9 Q So the purpose there was to permit the loading 10 and unloading of chemicals? 11 A Right, and it's a -- what it is is that right 12 now you have loading and unloading that occurs in 13 relatively unsheltered tie-ups in that harbor and the 14 lower, the mouth of the brasses, and this is a terminal 15 project by Distribution Systems, Inc., which is a chemical 16 transport company, which in effect is a sheltered anchorage 17 with boom controls and the whole bit, that we helped 18 prepare 404 permit applications on, that we prepared the 19 404 permit applications on, including the impacts, and part 20 of the justification for the project was that it would 21 reduce water pollution in the harbor and near shore areas, 22 because of not only the natural design, but also the 23 environmental safeguards that were to be present and we 24 were able to get them their permit. 25 Q The Superfund designation economic study, what 60 1 was the proposed action in that? 2 A Well, it was not a proposed action, it was an 3 action that occurred and that is that the -- I don't recall 4 whether it was a state designation pursuant to a federal 5 law or whether it was a federal designation, but in any 6 event, there is a solvent recycling plant which a 7 subdivision had been built adjacent to. The solvent 8 recycling plant was there first and it had shut down, but 9 there was a pit that was felt there were hazardous 10 materials in and it was designated as a Superfund site and 11 I -- we believe that the concern with the site was either 12 that there was going to be some release of materials into 13 surface water or ground water from this pit and that action 14 was believed to have precipitated a decline in both 15 property values and decline in the marketability in the 16 homes in the adjacent suburb or subdivision, and I was 17 asked to take a look at that and see whether after 18 controlling for the other factors that in the Houston 19 housing market at that time would have affected value, we 20 could quantify what the impact of the Superfund designation 21 had been. 22 Q So it had been designated as a Superfund site? 23 A Yes. 24 Q So there was no proposed action, there was an 25 action? 61 1 A Yeah. The action of designation had occurred 2 and that seems to have been what was being complained about 3 by some plaintiffs in a lawsuit. It was not the clean up 4 activity itself, which as I recall at that time had not 5 really commenced. 6 Q In the Texas Coastal Management Program project, 7 what was the proposed action there? 8 A Well, speaking broadly, the proposed action was 9 to adopt a state coastal management plan under the Federal 10 Coastal Zone Management Act. 11 Q The Texas land use policy project, development 12 of Texas land use policies, what was the proposed action 13 there? 14 A The purpose of the study was to examine -- first 15 of all, let me start by saying Texas, this was in 1972, but 16 still largely true today, Texas does not have land use 17 controls of the zoning and subdivision sense, outside its 18 incorporated areas or the extra-territorial jurisdiction of 19 those incorporated areas. In other words, there is no 20 county ordinance power to regulate development and that 21 has, as you can imagine, all sorts of implications in terms 22 of siting of activities and potential control or potential 23 runoff into surface streams or elsewhere. 24 There was interest at that point, under the 25 fellow that was then governor, in looking at whether or not 62 1 there was a rationale for establishing what I'll just refer 2 to globally as county zoning authority and, if so, what 3 kinds of mechanisms for both planning and regulation might 4 be used and what process might be used for moving to a 5 decision on those. I was involved in studying a number of 6 different states mechanisms and in looking at what some of 7 the problems and issues were that were being raised that 8 various people thought might be solved by a more extensive 9 planning and zoning and then looking toward recommendations 10 on a process for getting to a decision on whether we should 11 have a broad land use planning and management authority in 12 the state. 13 Q So the proposed action was to establish county 14 zoning authority and that encompasses land use management 15 authority? 16 A Well, I mean, I wouldn't want to tell that you 17 it was -- that anybody was proposing at that time a 18 specific action. It was -- I would consider this to have 19 been a piece of consulting work that was both background in 20 nature and was looking at establishment of a process for 21 moving to those policy decisions. It's kind of one step 22 back from the proposed action. The proposed action, if you 23 will, was to try to move to legislation on the matter, 24 there was not a specific legislative proposal that was on 25 the table. 63 1 Q So what proposed action did you study the 2 economic or socioeconomic impacts of? 3 A Of various alternative forms of land use 4 planning and regulation. 5 Q The Maine oil refinery development project? 6 A Um-hum. 7 Q How about there, what was the proposed action at 8 issue? 9 A The proposed action there was to establish a 10 deep water port and an associated refinery complex on Sears 11 Island in Penobscot Bay on the coast of Maine. One of the 12 issues that was leading to the development of that was the 13 concern with oil pollution at various ports now that oil 14 was coming in to be refined, rather than being piped there 15 from west Texas, and with the oil pollution from open ocean 16 transfer from super tankers to smaller vessels, because the 17 ports where a lot of the refineries were located were not 18 deep water, I mean, they were only 45, 50 foot where this 19 was 70 or 80 feet. 20 Q So again the proposed facility was what kind of 21 a facility? 22 A In effect, a super tanker terminal and there was 23 an associated refinery. 24 Q In the Edwards aquifer withdrawal project, what 25 was the proposed action there? 64 1 A Well, there are a couple. The proposed action 2 is to restrict pumping of the Edwards aquifer, which is a 3 large aquifer that runs from approximately San Marcos, 4 Texas, which is 30 miles south of Austin, down through San 5 Antonio and then west and south into several farming and 6 ranching counties. It is the sole water supply for the 7 city of San Antonio, as well as for other cities and is 8 used for irrigation. 9 The problem is, is that if we go to the concept 10 of firm yield, that is how much can be withdrawn 11 sustainably, even in the drought record, without 12 overdrafting the aquifer, that the withdrawals presently 13 are about twice that number. The drought record was in the 14 mid '50's. There are two springs which are in effect the 15 downstream outlets of the aquifer, that flow into the 16 Guadalupe and Blanco rivers and form about a third of the 17 water that comes in the Guadalupe and the Blanco rivers. 18 There are some critters that live in and about those 19 springs and in the aquifer which either had been or likely 20 to be classified as endangered species, and if the spring 21 -- in another drought of record there is testimony to the 22 effect that it would dry up the springs and it would 23 threaten the continued existence of those critters, so 24 there have been a series of state agency and federal court 25 actions that are addressing -- attempting to address this 65 1 question. 2 I was asked by the Guadalupe-Blanco River 3 Authority to look at the economic impact on San Antonio of 4 not seeking alternative water supplies on what I would 5 consider to be, at this stage anyway, more of a qualitative 6 basis, and I did that and provided that testimony to the 7 Texas Water Commission. 8 Q You testified? 9 A Um-hum, yes, I did. 10 Q When you say look at the economic impact on San 11 Antonio of not seeking an alternative water supply, am I to 12 understand that that assumed that pumping into the Edwards 13 aquifer would be restricted and the issue there is whether 14 or not to seek alternative water supplies? 15 A Correct. And the issue is are you better off 16 with a less expensive, but unreliable water supply, or with 17 a more expensive, but very reliable water supply. If you 18 are worried about the economic development of San Antonio 19 and its associated communities. 20 Q Did you do this work on this project for the 21 Texas Water Commission or who for? 22 A No. I did it for the Guadalupe-Blanco River 23 Authority. 24 Q Was there anything -- any of the results of your 25 work published? 66 1 A Well, I mean, it's in the record of the hearing. 2 Q Did you do any formal -- produce any formal 3 documents, impact assessments or other reports? 4 A I provided some materials to the River 5 Authority's council in that case and I frankly don't 6 remember whether it was submitted as a separate document or 7 whether it was just resource material that they used in 8 preparation of the briefs. 9 Q Did you reach a conclusion based on your 10 analysis? 11 A Yes. 12 Q What was that? 13 A The conclusion was that if one accepted the 14 hydrologic analysis that had been done, that the city of 15 San Antonio would be far better off economically developing 16 surface water supplies now while we're in a fairly wet 17 period and where the aquifer has not been -- is not in 18 danger of being shut off, rather than waiting until federal 19 court tells them to stop pumping, given the time it takes 20 to develop surface water supplies and given the kinds of 21 considerations that industries have in locating or 22 expanding facilities in places like San Antonio. 23 San Antonio is, other than military, is a home 24 for what are primarily footloose industries, meaning that 25 they are concerned about factors like ability to add 67 1 housing, ability to have a relatively low cost of living 2 for their workers and availability of workers, that kind of 3 thing. 4 Q Just briefly going back to your discussion of 5 the Louisiana natural gas development project, I believe 6 you testified that the tax was proposed to be assessed in 7 part to do what I understood as marsh impact mitigation? 8 A Right. 9 Q Would you say that the environmental remedial 10 purpose was the primary purpose of the proposed action or 11 would you say it was an incidental purpose? 12 A I don't know that I could say either. It 13 certainly was not incidental, there are some very real 14 impacts that have occurred in those marshes and that I 15 understand are subject to remediation, but it's not cheap. 16 We are talking about now delving into the mind of the 17 legislature of the state of Louisiana as to motive and 18 intent and I am not able to do that for you. 19 Q How about the Freeport, Texas marine terminal 20 project, you testified there that part of the justification 21 for the proposed action was to, I take it, to reduce the 22 likelihood of oil spills at that facility? 23 A Not at that facility, but in the port generally. 24 This facility had existed previously. 25 Q In the port generally? 68 1 A Yes. 2 Q Would you say that that purpose was the primary 3 purpose of the proposed action? 4 A The proponent was a private profit making 5 company and I assume that their primary motive was to make 6 a return on their investment. The issue here was the 7 approval of a Section 404 permit by the Corps and in terms 8 of their motivation, that was the action, in effect, one of 9 the actions, and I would assume that environmental 10 protection would have been one of their considerations in 11 approving this permit. I don't remember in detail if there 12 were any negative environmental impacts of the proposal in 13 terms of maybe some small loss of wetlands at the mouth of 14 the facility, because it was going to be dredged out, but 15 on balance it was viewed as an environmentally positive 16 action and I'm sure that there was a consideration to the 17 Corps in issuing the permit. 18 Q Besides being one of the considerations, though, 19 was it the primary purpose of the proposed action? 20 A From whose standpoint? 21 Q The acting entity. 22 A Well, do you mean the developer or the permit 23 issuer? 24 Q The developer. 25 A From the developer, as I have already said, I am 69 1 assuming that their objective was to earn return on their 2 investment. 3 Q So did you do an economic impact analysis where 4 the proposed action was the issuance of the permit? 5 A The issuance of the permit was viewed as a part 6 of the development process. As I recall, we did do an 7 economic analysis of the construction and operation of the 8 terminal, yes, as part of the permit application. 9 Q Dr. Luke, it appears that you have served as a 10 litigation expert before, based on what I glean from your 11 curriculum vitae, is that correct? 12 A Yes. 13 Q Do you know approximately how many times? 14 A When you say litigation, are you distinguishing 15 that from administrative type cases or are you including 16 that? 17 Q Any cases in which you were working with or 18 under the direction of counsel, either during the course of 19 court litigation, quasi judicial proceedings before an 20 administrative agency, or in anticipation of either of 21 those, where you were characterized as a litigation expert. 22 A I don't know that I have ever been characterized 23 as a litigation expert. I mean, I have been disclosed as a 24 potential expert witness, if that's saying the same thing. 25 Q That would be a subcategory, either disclosed as 70 1 a potential expert witness or retained for purposes of 2 providing expert consultation in such proceedings? 3 A Okay, I couldn't give you a precise number, but 4 I would say over the course of now doing this for about 20 5 years, it's certainly been several dozen times. 6 Q What was the most recent such involvement? 7 A It's a little difficult to answer, I mean, there 8 are several cases ongoing where I'm involved in one way or 9 another in the analysis and it may lead to testimony. 10 Q What are those cases? 11 A Well, of course there's this one. There is a 12 case where the client is a company called Atochem, 13 A-t-o-c-h-e-m. There is a case for Good Samaritan Hospital 14 in West Palm Beach. There is a case for Riverside Hospital 15 in New Port Richey. There is a case for Florida Medical 16 Center in -- I can't remember exactly which of the towns 17 it's in, but Broward County. There is a case for an 18 individual in Austin concerning health insurance, possible 19 health insurance fraud. There is a case for the Texas 20 attorney general's office concerning possible health 21 insurance fraud. There are other cases that are active in 22 my firm but, I mean, my involvement with them is more of a 23 supervisory or managerial nature. 24 Q Of the cases that you have just mentioned, other 25 than this case, are there any in which you have been 71 1 designated as an expert witness? 2 A Well, I have in the Atochem case. I have in the 3 Carson case. 4 Q I'm sorry, what was the last one? 5 A Carson, which is one of the insurance cases. 6 Q Would that be the individual? 7 A Right. 8 On the others, I don't know that there has been 9 a designation yet. One of them is a -- well, probably in 10 the Florida Medical Center case there is a designation. 11 Also the Edwards aquifer case is sort of an ongoing matter, 12 but it's not in a posture right now where there would be a 13 standing designation. 14 Q In your involvements with the projects we 15 discussed earlier involving impact assessment of actions 16 proposed to remedy environmental problems, were you listed 17 as a litigation expert -- excuse me, strike that. 18 In any of the previously discussed projects 19 involving economic impact assessment of actions proposed to 20 remedy environmental problems, did you participate as a 21 litigation expert? 22 A Again, the term I'm more familiar with is expert 23 witness and I think in all of those I did, yes. 24 Q Of those cases that we were just discussing, did 25 you testify in any of them? 72 1 A Yes. 2 Q Did you testify in the Browning-Ferris industry 3 waste disposal matter? 4 A There are several matters there and I think in 5 pretty much all of those I did, yes. 6 Q How about in the Department of Energy nuclear 7 waste project? 8 A No. 9 Q The Louisiana natural gas development project? 10 A I was deposed, but I didn't testify because the 11 case went down on summary judgment. 12 Q In the Freeport, Texas marine terminal case? 13 A There was not a hearing on that so, I mean, I 14 submitted a permit application, but I didn't testify. 15 Q In the Superfund designation matter? 16 A I was deposed, but the case settled. 17 Q In the Texas Coastal Management Program matter? 18 A I testified before the legislature on that, 19 there was not a -- there was no litigation really to that. 20 Q The Texas land use policies project? 21 A No, there was no testimony related to that. 22 Q So you were a litigation expert in that case? 23 A No, I mean, there was no litigation, it was a 24 study. 25 Q Oh, I'm sorry, okay. Backing up is that also 73 1 the case with the Texas Coastal Management Program, was 2 that not a matter in or anticipating litigation? 3 A Right, that was a legislative policy development 4 project. 5 Q How about the Maine oil refinery development 6 project? 7 A There was eventually some -- there were some 8 permit proceedings relating to that, but the study that I 9 did was not connected to any party to those proceedings. 10 Q Were you a litigation expert in that proceeding? 11 A No. 12 Q And the Edwards aquifer withdrawals project, I 13 believe you mentioned that you don't believe you are