1 1 Division of Administrative Hearings 2 Department of Administration, State of Florida 3 SUGAR CANE GROWERS COOPERATIVE ) 4 of FLORIDA; ROTH FARMS, INC.; and ) WEDGWORTH FARMS, Inc., ) 5 Petitioners ) V ) DOAH Case 6 SOUTH FLORIDA WATER MANAGEMENT ) No. 92-3038 DISTRICT, an agency of the State ) 7 of Florida; et al., ) Respondents. ) 8 ____________________________________) FLORIDA SUGAR CANE LEAGUE, INC., and) 9 UNITED STATES SUGAR CORPORATION; ) Petitioners, ) 10 V ) DOAH Case SOUTH FLORIDA WATER MANAGEMENT ) No. 92-3039 11 DISTRICT, an agency of the State ) of Florida; et al., ) 12 Respondents. ) ____________________________________) 13 FLORIDA FRUIT and VEGETABLE ) ASSOCIATION; LEWIS POPE FARMS; ) 14 W. E. SCHLECHTER & SONS, INC., ) and HUNDLEY FARMS, INC., ) 15 Petitioners, ) V ) DOAH Case 16 SOUTH FLORIDA WATER MANAGEMENT ) No. 92-3040 DISTRICT, an agency of the State ) 17 of Florida; et al., ) Respondents. ) 18 ____________________________________) 19 VOLUME I DEPOSITION OF MARK D. MAFFEI, Ph.D. 20 Taken before Rachel W. Bridge, Professional 21 Reporter and Notary Public in and for the State of Florida at large, pursuant to notice of taking 22 deposition filed by the Petitioners in the above cause. 23 - - - Monday, March 21, 1994 24 319 Clematis Street, Suite 500 West Palm Beach, Florida 33401 25 9:05 a.m. - 4:45 o'clock p.m. 2 1 APPEARANCES: 2 On behalf of the Petitioners Florida Sugar Cane League, Inc., and United States Sugar Corp.: 3 Earl, Blank, Kavanaugh & Stotts, P.A. 4 One Biscayne Tower, Suite 3636 Two South Biscayne Boulevard 5 Miami, Florida 33131 By: JONATHAN GAINES, ESQUIRE 6 7 On behalf of Sugar Cane Growers: 8 Hopping, Boyd, Green & Sams 123 South Calhoun Street 9 Tallahassee, Florida 32301 By: ROBERT P. SMITH, ESQUIRE 10 and JEFFREY J. WARD, ESQUIRE 11 In-House Counsel Sugar Cane Growers 12 On behalf of the Intervenor United States: 13 U.S. Attorney's Office 14 155 South Miami Avenue Suite 600 15 Miami, Florida 33130 By: SUZAN HILL PONZOLI, ESQUIRE 16 I N D E X 17 - - - 18 WITNESS: DIRECT CROSS REDIRECT RECROSS 19 Mark D. Maffei, Ph.D. 20 By Mr. Smith 4 3 1 - - - 2 E X H I B I T S 3 - - - 4 NUMBER PAGE DESCRIPTION 5 Maffei Exhibit O 4 Declaration of Mark 6 D. Maffei, Ph.D. 7 Maffei Exhibit E-2 24 Pages 124 and 125 of Supporting Information Document 3-13-92 8 Maffei Exhibit A 46 Preliminary Evaluation Report 9 on the Effects of Fish & Wildlife Resources of the Everglade 10 Drainage and Flood Control Project 11 Maffei Exhibit B-3 60 House Document 643 12 Maffei Exhibit C 66 Series of documents, including 10-27-49 letter from Gerald Baker 13 to director of Fish & Wildlife Service 14 Maffei Exhibit 24 86 Davis map 15 Maffei Exhibit H 94 Ecology of Vegetation Transects 16 A & B Loxahatchee National Wildlife Refuge 17 Maffei Exhibit I 99 Report of the Special Study 18 Team on the Fla. Everglades 19 Maffei Exhibit 25 111 John Davis map, 1967 20 Maffei Exhibit M 116 House Document 369, 1968 21 Maffei Exhibit T 140 Newspaper article, "Keeping Marshes Wet Makes For 22 More Kites" 23 Maffei Exhibit J 155 A Survey of the Archeology and History of Loxahatchee 24 National Wildlife Refuge 4 1 P R O C E E D I N G S 2 - - - 3 Thereupon, 4 Mark D. Maffei, Ph.D., 5 being by the undersigned Notary Public first duly 6 sworn, was examined and testified as follows: 7 THE WITNESS: Yes. 8 DIRECT (Mark D. Maffei, Ph.D.) 9 BY MR. SMITH: 10 Q. You are Dr. Mark Maffei? 11 A. Correct. 12 Q. And your title at the Loxahatchee Refuge is 13 wildlife biologist? 14 A. Correct. 15 Q. Is there something more to your title than 16 that, senior wildlife biologist or -- 17 A. I am often referred to as the senior 18 wildlife biologist, because there are currently three 19 of us that have the title wildlife biologist. 20 Q. I see. You have been there the longest? 21 A. Yes. 22 (The document was marked 23 Maffei Exb. No. O.) 24 BY MR. SMITH: 25 Q. Dr. Maffei, I'm going to hand you Exhibit O 5 1 for identification to your deposition, which is a 2 copy of the Declaration of Mark D. Maffei, Ph.D., 3 September 4, 1990 in the federal litigation. 4 I ask you to look at that document, tell me 5 if you recognize it and whether you have had occasion 6 to look at it in recent times. 7 A. I recognize it as my declaration. Somebody 8 wrote on page four. I don't recognize that. And I 9 have not reviewed it in recent times. 10 Q. Disregarding the summary of numbers there 11 in the right-hand column of page four, that is your 12 declaration? 13 A. Correct. 14 Q. As of that time. Would you look at it and 15 tell me to what extent, if any, the factual 16 descriptions contained in that document are correct 17 today and to what extent, if any, the opinions 18 expressed there are your opinions today and to what 19 extent they have changed in either case? 20 MS. PONZOLI: Object to form. It's a very 21 compound question. 22 BY MR. SMITH: 23 Q. I'll take you back through it. No sense, 24 we will not try to differentiate in my question in 25 between facts and opinions. I will just ask you to 6 1 tell me are the facts there as represented as of 2 September 1990 facts today as you observe them? 3 A. The facts in paragraph three look to be the 4 same. 5 The facts in paragraph four appear to be 6 the same. 7 The facts in paragraph five appear to be 8 the same. 9 Paragraph six references extreme flooding. 10 I don't believe I would write such a phrase were I to 11 do this declaration today. 12 Q. Referring to the historical characteristic? 13 A. Correct. 14 Q. All right. 15 A. Paragraph seven appears to be consistent 16 with my understanding today. 17 Paragraph eight appears to be consistent 18 with my understanding today. 19 Paragraph nine appears to be consistent, 20 with the exception that were I to write this today, I 21 either would not include a reference to the Florida 22 panther, or I would qualify that inclusion. 23 Q. Sir, so I won't have to come back to that, 24 what's the reason for your observation? 25 How would you qualify it or why would you 7 1 omit it? 2 A. In the seven years that I have been there, 3 I have responded to perhaps two dozen reports of 4 Florida panthers in, on or around the Refuge. Some 5 of these reports have been from what I considered to 6 be qualified observers; however, no physical evidence 7 of Florida panthers on or near the Refuge has been 8 located. So I may qualify the statement with that 9 additional information. 10 Q. While we are on the panther, is there a 11 reference to the presence of the Florida panther in 12 what is now the Refuge in the historical documents? 13 A. I don't recall reference to Florida panther 14 in historical documents. 15 Q. All right. Carry on. 16 A. Paragraph 10 appears to be consistent with 17 my understanding today. 18 Paragraph 11 appears to be consistent with 19 my understanding today. 20 Paragraph 12 appears to be consistent with 21 my understanding today. 22 Paragraph 13 appears to be consistent with 23 my understanding today. 24 Paragraph 14 is generally consistent with 25 my understanding today. 8 1 Paragraph 15 is consistent with my 2 understanding today. 3 Paragraph 16 is generally consistent with 4 my understanding today. 5 Q. Is what consistent? 6 A. Generally consistent. 7 I would not write paragraph 17 as it is 8 presented here. 9 Q. Would you elaborate on that, please, sir? 10 A. I do not believe I would use the term drier 11 in discussing these areas. I would discuss it in 12 terms of reduced hydroperiod or extended hydroperiods 13 instead of using the term wetter. 14 And I do not believe necessarily that tree 15 islands have drowned. 16 Q. What I could correctly conclude from that 17 then, that with that revision reflects your opinion 18 that there has not been a general shortage of water 19 in Loxahatchee? 20 A. I don't know what you mean a general 21 shortage of water in Loxahatchee. 22 Q. All right. You don't know what I mean? 23 A. I'm not sure how what I just said causes 24 you to conclude that I think there has not been a 25 general shortage of water. 9 1 Q. Well, do you or do you not think there has 2 been a general shortage of water in Loxahatchee over 3 the past 50 years? 4 A. With regard to what? 5 Q. Wet water, presence of water. 6 A. The area remains a marsh that's had 7 sufficient water to remain a marsh. 8 Q. It's had the right quantity and timing of 9 water for 50 years; is that your opinion? 10 A. Right for what? Certainly not right to 11 grow sugar cane. Right to maintain a marsh that is 12 there today. 13 Q. Right by the standards of what you consider 14 to be the authentic Loxahatchee vegetative and fauna 15 characteristics? 16 MS. PONZOLI: I'm going to object to form. 17 I think these words right and authentic are very 18 problematic, Mr. Smith, and I think it's 19 probably degenerating into an argument with the 20 witness, because the form of the question is 21 unclear and ambiguous. 22 Could you phrase your hydroperiod question 23 a different way? 24 MR. SMITH: Yes, I shall. 10 1 BY MR. SMITH: 2 Q. Do you have an opinion, Dr. Maffei, as to 3 whether at any time in the past 50 years what you 4 consider to be the natural hydroperiod or natural 5 amount of water has been in the Loxahatchee abnormal? 6 A. Do I have an opinion as to whether the 7 natural amount of water has been in the Loxahatchee 8 abnormal? 9 Q. Yes. 10 A. That question doesn't make sense to me when 11 you add the word abnormal at the end of that 12 question. Are you -- 13 Q. It's the qualification of abnormal that 14 gives you trouble with my question? 15 A. Are you asking -- yes, that gives me 16 trouble. 17 Q. Okay, let me try it again. 18 When you speak of drought conditions, you 19 are speaking of drier than you would wish to have; do 20 you agree? 21 A. Drought refers to a rainfall deficit. 22 Q. Deficit compared to what? 23 A. Than an average year. 24 Q. So you are taking it as the norm what is 25 average for a period of time? 11 1 A. That's generally accepted norm. 2 Q. That's what you are taking -- 3 A. Correct. 4 Q. -- as the norm, the average? All right. 5 But when you say in paragraph 16 "The 6 quantity and timing of water deliveries to the Refuge 7 has generally been consistent with that which is 8 necessary to maintain characteristic spatial 9 diversity," would you say that that is the average 10 spatial diversity that is maintained or how would you 11 equate that statement with your observation about 12 averages? 13 MS. PONZOLI: Mr. Smith, I have to object 14 to the question. I think you have misread the 15 first sentence of number 16. 16 MR. SMITH: Look, just excuse me. Let the 17 ask the witness the question. I'm trying to 18 understand his opinion and I would like to have 19 his explanation, Ms. Ponzoli. 20 MS. PONZOLI: Well, I'm trying to be very 21 patient with some difficult questions, and your 22 question on number 16 includes a misstatement of 23 his paragraph 16, so I cannot let it pass. 24 THE WITNESS: There is a higher degree of 25 spatial diversity present in the system. There 12 1 is today. 2 Therefore, my conclusion is that the 3 deliveries of water in the time frame which you 4 referenced have been adequate to maintain a 5 spatial diversity that occurs today. 6 BY MR. SMITH: 7 Q. Spatial diversity refers to what? 8 A. Spatial diversity refers to changing 9 features of the ecosystem as you move from Point A to 10 Point B in space. 11 Q. Okay. In paragraph 17 you made the 12 statement "Shift in vegetation occur as a result of 13 these changes to the natural hydrology." 14 Is that statement true today, in your 15 opinion? 16 A. I believe it is. 17 Q. But you say you would not write that some 18 areas "remain drier than they were historically, 19 while other areas are wetter"? 20 A. I said I would not use the words drier or 21 wetter. I would reference hydroperiods being 22 shortened or extended. 23 Q. Hydroperiod referring to the relationship 24 between the time in which a certain area is covered 25 with water and certain area in which it is not 13 1 covered with water? 2 A. Correct. 3 Q. And so at the time you wrote this, the 4 effect of your observation as you corrected today by 5 the terminology is that some portions of the Refuge 6 had a shorter hydroperiod than the Loxahatchee area 7 had historically, while other areas had a more 8 extended hydroperiod? 9 A. At the time I wrote this, it was my belief 10 that some areas had a shorter hydroperiod than 11 occurred prior to 1880, for example, and some areas 12 had a longer hydroperiod than occurred prior to 1880. 13 Q. And what do you think now? 14 A. I believe that in general, the entire area 15 has a hydroperiod shorter than what occurred prior to 16 1880. 17 Q. But nevertheless, the quantity and timing 18 of water deliveries over the years has been adequate 19 to maintain the spatial diversity that you think is 20 characteristic of the area; is that correct? 21 A. That's correct. 22 Q. All right. Will you carry on then? 23 A. Paragraph 18 is generally consistent with 24 my opinions of today. 25 Q. Would you elaborate the sentence, next to 14 1 last sentence on that page, "Plant species which I 2 have learned to associate to high nutrient conditions 3 such as various species of Sagittaria (arrowheads), 4 Pistia stratiotes," if that's the way you say it, 5 "(water lettuce), species of Pontederia 6 (pickerelweeds) and species of Typha (cattails) are 7 abundant." 8 Would you elaborate that? How did you 9 learn to associate high nutrient conditions with 10 those species? 11 A. Those species are generally located more 12 densely or more abundantly near bird rookeries, 13 alligator holes, in or near canals than they are 14 throughout the remainder of the Refuge. 15 Q. And the last sentence, the areas which you 16 consider to be most severely impacted are dominated 17 by large stands of cattails or in some instances 18 Salix species or willow, those areas refer to areas 19 in or near the canals or other areas? 20 A. The areas of large stands of cattails that 21 are near the canals are most likely to be the areas 22 that are being impacted by the discharges from S-5A 23 and S-6; however, I don't necessarily foreclose the 24 possibility that areas in interior marshes where 25 these species are present have not also been impacted 15 1 to some degree by surface inflows. 2 Q. Are Salix species, willow, characteristic 3 of a greater than average nutrient presence? 4 A. Based on work that I have reviewed and my 5 own observations out there, I would say that Salix is 6 characteristic of elevated nutrient availability, 7 yes. 8 Q. What works come to mind? 9 A. Work Order 32 in particular. 10 Q. That was reported in 1992, I believe? 11 A. That's correct. 12 Q. Prior to that, at the time you made this 13 declaration what works did you have in mind, if any? 14 A. Work Order 32, sir. 15 Q. Can you think of any historical or 16 vegetative analysis prior to Work Order 32 which 17 correlated nutrient presence with Salix species? 18 A. I have recollection of other references to 19 the invasion of portions of the Everglades marshes by 20 Salix. I don't recall at this point the identity of 21 those. 22 Q. In what time period were those observations 23 made? 24 A. I don't recall. 25 Q. Were the Salix invasions to which you 16 1 referred before the influence of nutrient loading 2 from the EAA, in your opinion? 3 MS. PONZOLI: Object to form. I don't 4 think he referred to Salix invasions. 5 BY MR. SMITH: 6 Q. Did you refer to Salix invasion? Did I 7 misunderstand you? 8 A. I don't believe I referred to Salix 9 invasion. 10 Q. Well, I thought I understood you to refer 11 to literature that referred to Salix invasion of 12 other areas of the -- 13 A. Perhaps, I did. 14 Q. Well, I'm asking you what literature before 15 Work Order 32 correlates species Salix with 16 nutrients. 17 A. I have answered that question. 18 Q. What was your answer? Tell me again, 19 please. 20 A. I don't recall specific references. 21 Q. And what was the time frame in which these 22 observations or analyses were made? 23 A. I don't recall that, but if your question 24 is whether it's a pre or post project, I believe it 25 was a post project. 17 1 Q. All right, sir, would you proceed? 2 A. I do not believe I would write paragraph 19 3 as it is stated there. 4 Q. How would you qualify it or change it? 5 A. I would qualify or change the last sentence 6 to read, "In this context, imbalance refers to 7 abnormally high populations of some species with the 8 concomitant reduction in the populations of other 9 species as a result of increased --" perhaps I would 10 use the word fertility, perhaps I would use the word 11 nutrient availability. Perhaps I would use some 12 other phrase to get across the idea that the change 13 in species is a result of increased fertility. 14 Q. Is the sense of that qualification that you 15 would attribute to nutrient enrichment only that 16 portion of the increase in certain populations and 17 decrease in other populations as were in fact the 18 result of nutrient influence? 19 MS. PONZOLI: Would you like it read back? 20 THE WITNESS: Yes, please. 21 (Thereupon, a portion of the record 22 was read by the reporter.) 23 THE WITNESS: Yes. 24 BY MR. SMITH: 25 Q. And would I correctly suppose that you 18 1 would qualify paragraph 19 today were you to write it 2 again because you recognize that changes in 3 populations of different species may result from 4 other factors than nutrient influence? 5 A. That may be a second reason. 6 The primary reason I would change it is 7 because today my opinion and understanding is that 8 the term imbalance is a term used in the Florida 9 Statutes to refer to a particular problem caused by 10 pollution, and therefore I would want to make it 11 clear that I am attempting to use the term imbalance 12 the same way it's used in the Florida Statutes. 13 MR. GAINES: I'm sorry, did you say you 14 were or you were not? 15 THE WITNESS: I did not use it that way. 16 BY MR. SMITH: 17 Q. When you wrote 19? 18 A. When I wrote 19. 19 Q. But you would like to write it today so you 20 did use it in that sense; is that what you are 21 saying? 22 A. If I wrote it today with my knowledge of 23 what the statute says, I would use it in that term. 24 I also agree that additions of nutrients 25 are not the only factor which can change species 19 1 composition in the marsh. 2 Q. And do you consider those to be imbalances? 3 MS. PONZOLI: Object to form. Do you mean 4 imbalances as he has been referring under the 5 statute or just imbalance in some generic sense? 6 MR. SMITH: I mean imbalance in some 7 generic sense. 8 THE WITNESS: They can be. 9 BY MR. SMITH: 10 Q. Do you know that there have been imbalances 11 in that generic sense in the native or other flora of 12 the Loxahatchee at many different times in the past 13 50 years, a consequence of extended or shortened 14 hydroperiod? 15 A. I believe the distribution of species and 16 community types today is different than what it was 17 100 or more years ago. 18 To the extent that I would define that as 19 an imbalance, imbalance in that regard is a fairly 20 vague term. 21 Q. All right. Paragraph 20? 22 A. Paragraph 20 is generally consistent with 23 my opinions today. 24 Paragraph 21 is generally consistent with 25 my opinions of today. 20 1 Paragraph 22 is generally consistent with 2 my opinions of today; however, there is one statement 3 which I would modify slightly. 4 The sentence starts on the seventh line of 5 that paragraph that begins "Once a snail is sighted, 6 the snail kite dives into the water to capture the 7 snail." 8 That appears like I'm saying the bird 9 actually dives and submerges itself in the water, and 10 I would rephrase it so that it doesn't appear to say 11 that. 12 Q. The bird doesn't dive into the water? 13 A. I don't believe they generally submerge 14 themselves in the water, for example, as an anhinga 15 would to capture a fish. 16 The bird dives to the water surface, and 17 part of it the bird will be submerged, but I'm just 18 saying this reference appears to be a little too 19 strong as to the bird's movement to the water 20 surface. 21 MS. PONZOLI: May we take a break and trade 22 his chair? 23 (Discussion held off the record.) 24 BY MR. SMITH: 25 Q. All right, sir, would you proceed? 21 1 A. Paragraph 23 is generally consistent with 2 my opinions of today; however, were I to write this 3 paragraph today, I would probably modify the sentence 4 that begins on the eighth line that reads "This is 5 too low to support the aquatic life associated with 6 the Everglades." 7 Q. How would you modify it? 8 A. I would likely reference specific species 9 which appear to be unable to tolerate dissolved 10 oxygen concentrations in the water column below one 11 part per million. 12 Q. Which are? 13 A. I can give you an example or two of species 14 that I would include in that list. Large mouth bass 15 is an example of a fish that I would include as a 16 species that was unable to tolerate those low levels 17 of DO for extended periods of time. 18 And were I to write this today, I would go 19 through various references in the literature to 20 insure that my listings were accurate. 21 Q. Now does that mean the large mouth bass are 22 not found in the canals? 23 A. That's not what it means. 24 Q. What do you mean? 25 A. It means large mouth bass do not survive if 22 1 dissolved oxygen levels in the canals are below one 2 for extended periods of time. 3 Q. Have large mouth bass been displaced from 4 any particular area of the Refuge? 5 A. It is my opinion that at times they are 6 displaced from areas of the Refuge. 7 Q. What areas? 8 A. I assume we are still talking about 9 displacement as a result of low DO? 10 Q. Well, I presume that's what you are 11 describing, yes. 12 A. Okay. I believe at times the areas of the 13 L-40 canal and the L-7 canal at the outflows of the 14 S-5A pump station have had large mouth bass 15 populations reduced. 16 I believe this has also occurred in the 17 L-40 canal in the vicinity of the Acme pump stations, 18 in the vicinity of the S-6 pump station and the L-7 19 and L-39 canals, and to a lesser extent along the 20 L-39 canal. 21 Q. What's the basis for your belief that on 22 those occasions populations have been reduced in that 23 area? 24 A. The basis for that opinion is a round of 25 fish collection which I participated in. I don't 23 1 recall whether it was 1987, 1988 or 1989, but at that 2 time we were collecting large mouth bass for the 3 purpose of having the edible portions of the fish 4 analyzed for mercury content. 5 We collected bass at I believe six 6 locations in the canal. And the size of large mouth 7 bass obtained and the number of hours it took to 8 collect the fish -- we were attempting to collect 9 five fish at each location -- varied greatly with 10 location. 11 Q. And so you found fewer fish or smaller fish 12 at these outfalls of these structures; is that what 13 you are saying? 14 A. That's correct. 15 Q. All right, sir, carry on. 16 A. Paragraph 24 is generally consistent with 17 my opinions of today, although the number of acres 18 referenced is not a reference which I would 19 necessarily support today. 20 Q. How would you qualify it or change it? 21 The reference there is to 24,000 acres may 22 be damaged? 23 A. Correct. I do not have today a firm 24 opinion of what I would write instead of 24,000 25 acres. I have a question that I think needs to be 24 1 answered. 2 Q. The question being? 3 A. The question being has the entire marsh 4 been impacted in some way so that were I to rewrite 5 this, it would be necessary to say all of the Refuge 6 may be damaged, or would I feel it appropriate to 7 identify some other number? 8 Q. That question has not been answered to your 9 satisfaction? 10 A. No, sir. I have not answered it to my 11 satisfaction for myself. 12 Q. At the time you wrote this declaration and 13 your reference in this paragraph 24 and back on 14 paragraph five as well to the 24,000 acres being 15 damaged, what were the 24,000 acres, where were they 16 located? 17 A. Generally in the west and southwest 18 portions of the Refuge. 19 Q. Let me show you Exhibit E-2 for 20 identification, which is a portion, it's a cover page 21 and pages 124 and 126 of the Supporting Information 22 Document dated March 13, 1992. 23 MR. SMITH: Would you mark that, please? 24 (The document was marked 25 Maffei Exb. No. E-2.) 25 1 BY MR. SMITH: 2 Q. I would like you to locate on that diagram 3 Figure 22 the 24,000 acres to which you referred when 4 you made your declaration in 1990. 5 Would you take this marker, please, and 6 mark on that the portions? 7 MS. PONZOLI: Mr. Smith, I have to tell you 8 I have sort of an old fashioned rule. I don't 9 really have my witnesses draw maps for people or 10 write things for people. I'm sorry, let me 11 finish my objection. 12 I don't believe that in a deposition that 13 we are compelled to come and draw for you or 14 mark for you, so I can have him describe 15 generally for you where on the map he believes 16 his 24,000 acres is, but I will not allow him to 17 draw for you. I don't believe we are compelled 18 to draw for you in a deposition. 19 BY MR. SMITH: 20 Q. I don't want you to draw. I want you to 21 just indicate so that will reflect on the record. 22 Go ahead, Dr. Maffei, can you identify the 23 24,000 acres? 24 A. In general, the 24,000 acres that I was 25 referring to would include the area on this map 26 1 identified as sawgrass-cattail portions of the area, 2 identified as sawgrass pickerelweed, portions of the 3 Refuge identified as sawgrass spikerush, and 4 including a portion of the Refuge just interior to 5 the canals all the way around. 6 In general, that identifies the areas that 7 I would be talking about. 8 Q. All right, thank you, sir. 9 When you made your declaration, did you 10 attempt a rather close approximation of the number of 11 acres that you considered to be damaged to reach the 12 figure 24,000, approximately? 13 A. Based on my understanding at the time, I 14 did. 15 Q. So you have identified the areas shown by 16 the legend and markings on this map as the area 17 designated sawgrass-cattail, sawgrass pickerelweed 18 brush and sawgrass spikerush? 19 Did I correctly understand you? 20 A. Generally the area that I was looking at is 21 similar to areas encompassed by those three classes; 22 in addition, an area around the entire Refuge. 23 Q. Yes. 24 A. And I'm not necessarily excluding small 25 portions of other perimeter areas, for example, the 27 1 sawgrass mixed grass myrtle, mostly woods area, which 2 is near the perimeter, but in general, that's the 3 area. 4 Q. Now you have been looking at the diagram 5 and comparing it to the legend; is that correct? 6 A. That's been what I attempted to do, yes, 7 sir. 8 MS. PONZOLI: Mr. Smith, I will object to 9 your marking that yourself. It is no longer an 10 exhibit to which he has testified, or at least 11 the record will clearly reflect that you have 12 marked what you understand him to have said. 13 BY MR. SMITH: 14 Q. Do I take it that you included in the 15 24,000 acres some sawgrass mixed grass and myrtle 16 areas as well now? 17 A. I'll need to see the exhibit. 18 MS. PONZOLI: Do you have another copy, 19 Mr. Smith? 20 MR. SMITH: Here. Maybe on our next break 21 you can make me a copy. 22 THE WITNESS: Yes, I would include some of 23 the sawgrass mixed grass myrtle. I would 24 include some of the ridge sawgrass areas. 28 1 BY MR. SMITH: 2 Q. Dr. Maffei, are you including those areas 3 in the 24,000 acres referred to because of the 4 vegetative character of those areas as shown on this 5 exhibit? 6 A. No. 7 Q. Well, explain that, would you, please? 8 A. I did not use this exhibit when I attempted 9 to determine, I wrote my declaration how many acres I 10 believed were impacted. 11 Q. And you did not, when you made that 12 estimate, you were not referring to the character of 13 the vegetation in those areas either? 14 A. That was a part of the information that I 15 attempted to incorporate into the formulation of my 16 opinion. 17 Q. Well, what was the other part? 18 A. The hydrological characteristics of the 19 area. 20 Q. The vegetative and the hydrological 21 characteristics -- 22 A. With respect -- 23 Q. -- of the area were to you the signifiers 24 of the 24,000-acre damage? 25 A. With respect to the ability of canal waters 29 1 to penetrate the marsh, yes. 2 Q. My question is can you look at this map and 3 identify the areas that you believe when you made 4 your declaration constituted 24,000 acres of damage? 5 MS. PONZOLI: Mr. Smith, I believe he just 6 finished answering and telling you generally 7 where those areas are. 8 I don't understand your question. 9 BY MR. SMITH: 10 Q. Can you look at the map and tell that, 11 Dr. Maffei? 12 A. I can look at this map and recall to the 13 best of my memory what specific areas, what areas I 14 included when I made that determination of 24,000 15 acres. 16 Q. But that cannot be translated into the 17 vegetative characteristics as shown on this map? 18 A. This map does not match my understanding of 19 vegetative zones within WCA-1 either in 1990 or 20 today. 21 Q. Okay. What map does reflect your 22 understanding of vegetative zones in WCA-1 in 1990 or 23 today? 24 A. The classified image that's printed in the 25 report for Work Order 32 is the model on which I base 30 1 my opinions relative to vegetation within Loxahatchee 2 National Wildlife Refuge. 3 Q. And is that significantly different from 4 Figure 22 in the SWIM Plan document, in your opinion? 5 A. In my opinion, they are significantly 6 different. I'm not sure what you mean significantly, 7 but they are different representations of the 8 communities present on the Refuge. 9 Q. What were the signifiers to you of the 10 areas damaged constituting an estimated 24,000 acres 11 in 1990? 12 A. In addition to the presence of typha, we 13 had been discussing the ability of canal water to 14 move into the marsh from the canals. 15 And in the south portion of the Refuge 16 there is what is often referred to as a ridge, 17 although it is probably not truly a ridge, that runs 18 from the southeast corner of the Refuge towards the 19 northeast. 20 It was at that time my opinion that canal 21 water penetrated the marsh up towards that ridge with 22 some regularity. 23 Q. With what result? 24 A. With the result that nutrient in the water 25 in the canals was being distributed throughout that 31 1 area at a higher frequency than it was being 2 distributed throughout the entire Refuge. 3 Q. With what result? 4 A. With the result that the nutrient status 5 would be elevated and that changes to the ecosystem 6 would be affected. 7 Q. Which changes did you observe other than 8 the vegetative changes, the presence of cattails? 9 A. Another change that I observed in some of 10 those areas was the presence of hydrogen sulfide 11 odor, rotten egg smell, when the soils were 12 disturbed. 13 Q. Any others? 14 A. In some areas there was, there appeared to 15 me to be more luxurious growth of the plants that 16 were present. 17 Q. Any other effects that you observed? 18 A. In some areas the periphyton community 19 appears to be different. 20 Q. Any others? 21 A. That's all I can recall at this time. 22 Q. When were cattails present in what is now 23 Loxahatchee to a degree considered remarkable to 24 qualified observers? 25 A. Based on my review of annual reports and 32 1 documents related to weed control and discussions 2 with individuals who have had a long history at the 3 Refuge, Refuge personnel became concerned with the 4 appearance of cattails approximately the 1964, 1965, 5 1966 time frame. 6 Q. Looking at the next page of that exhibit, 7 E-2, is that quotation from Stieglitz published in or 8 written in 1964 the recorded observation of a 9 qualified person at the Refuge of what was deemed to 10 be a remarkable presence of cattail? 11 THE WITNESS: Would you read back the 12 question, please? 13 (Thereupon, a portion of the record 14 was read by the reporter.) 15 THE WITNESS: I don't see the word 16 remarkable in here, but the presence was enough 17 to result in efforts by Refuge personnel to 18 eliminate the cattail. 19 BY MR. SMITH: 20 Q. Well, Stieglitz in 1964 characterized the 21 cattail presence as a serious infestation on the 22 south end of the Refuge adjacent to the Hillsboro 23 Canal, did he not? 24 You are familiar with that original 25 document that's here quoted? 33 1 A. I don't know what the original document 2 quoted is. 3 Q. All right. 4 A. I may be. 5 Q. Let's look at the bibliography here. Look 6 at the bibliography to the SWIM Plan supporting 7 documents and read, if you would, into the record the 8 1964 Stieglitz document. 9 A. Stieglitz, W.O., 1964, a status report of 10 the vegetation of the Loxahatchee National Wildlife 11 Refuge (Conservation Area 1) unpublished mimeograph 12 report, Loxahatchee National Wildlife Refuge, Boynton 13 Beach, Florida, 12 pp. 14 Q. Are you familiar with that document? 15 A. I believe I have looked at it, yes, sir. 16 Q. It's a part of the records that you 17 inherited there at Loxahatchee Refuge; is it not? 18 A. It's among the records present at the 19 Refuge, yes, sir. 20 Q. Well, it was there when you came there 21 several years ago, wasn't it? 22 A. That's right. I don't own any of the 23 documents, sir. They are part of our files. 24 Q. Well, you agree that the sense of 25 Dr. Stieglitz -- who was Stieglitz? 34 1 A. Who is Stieglitz? Mr. Stieglitz at that 2 time I believe was the biologist for the South 3 Florida refuges. 4 Q. And the South Florida refuges were what? 5 A. My recollection is at that time the South 6 Florida refuges include the Loxahatchee National 7 Wildlife Refuge, included National Key Deer Refuge, 8 may have included Ding Darling Refuge, and probably 9 one or two others, but I'm not sure of the exact date 10 of the formation of the various other refuges. 11 Q. By whom was he employed? 12 A. U.S. Fish & Wildlife Service. 13 Q. Mr. Stieglitz in 1964 in this quoted report 14 attributes serious infestations of cattail growth to 15 recent drought conditions. 16 Do you agree with that characterization? I 17 mean did I characterize what he said correctly? 18 A. That appears to be what he said. 19 Q. Do you agree with that or not? 20 A. Do I agree that's what he appears to have 21 said? 22 Q. No, do you agree that he accurately 23 described what was occurring on the ground? 24 A. Is your question that you want me to 25 interpret what I think the conditions were at that 35 1 time? 2 Q. Yes, sir. 3 A. My opinion is that cattail seeds need a 4 dewatered surface on which to germinate, a mud flat 5 or a mud bank. 6 I believe that the drought to which 7 Mr. Stieglitz referred provided that, an appropriate 8 seed bed for those cattail plants to germinate. 9 I believe that soil fertility levels in the 10 areas where Mr. Stieglitz believed cattail were 11 becoming problematic were probably at that time 12 adequate to support the growth of these seedling 13 cattail plants. 14 Q. Well, we know that they were adequate if he 15 correctly observed that there was what he 16 characterized as a serious infestation, do we not? 17 The presence of the cattail would -- 18 A. That's right, we know soil fertility levels 19 were adequate to support those cattail stands. 20 Q. You are saying that the drought condition 21 was responsible only for the germination of the seed, 22 but not for the maturation of the cattail stand? 23 A. That is correct. That is my belief. 24 Q. Are cattails a plant indigenous to the 25 Everglades generally? 36 1 A. It's my understanding that they are 2 indigenous to South Florida. 3 Q. Including the Everglades? 4 A. Yes, sir. 5 Q. And including the Loxahatchee area? 6 A. Yes, sir. 7 Q. Do you accept Mr. Stieglitz' observation as 8 true that "Cattail has been noted around the 9 peripheral canals and at numerous other sites within 10 the Refuge interior. The plant is well distributed 11 over the Refuge"? 12 Do you accept that as an accurate 13 observation as of 1964? 14 A. I have no reason to doubt Mr. Stieglitz' 15 interpretation of what he saw. 16 Q. Would it then follow from your acceptance 17 of that observation that whatever the conditions 18 were, including a nutrient level, if necessary, 19 necessary to support cattail were indeed present then 20 throughout the Refuge at that time? 21 A. I believe in those locations where 22 Mr. Stieglitz noted cattail at other sites within the 23 interior that the conditions necessary to support 24 cattail were present. 25 Q. Is it plain to you that Mr. Stieglitz 37 1 regarded that presence as an infestation, as an 2 abnormal presence? 3 A. I believe that's clearly Mr. Stieglitz' 4 interpretation. 5 Q. Do you have an opinion as to the source of 6 any contributing factors to the cattail growth as 7 observed and described by Mr. Stieglitz? 8 A. It is my belief that in order for a cattail 9 plant to establish itself and maintain itself within 10 Loxahatchee National Wildlife Refuge or probably for 11 that matter any place, it needs to have the 12 opportunity to germinate and then it needs to have 13 adequate soil fertility to support its growth and it 14 needs to have adequate light to support its growth. 15 Q. I'm asking whether you have opinion as to 16 the source of that adequate fertility? 17 A. My opinion is that that would vary from 18 location to location. 19 Q. The source of it would vary? 20 A. Correct. 21 Q. Well, isn't it plain to you that 22 Mr. Stieglitz was not describing alligator holes and 23 bird rookeries as abnormal characteristics of 24 accounting for this infestation? 25 A. Where he references the serious 38 1 infestations exist on the south end of the Refuge 2 adjacent to the Hillsboro Canal and where it has also 3 been noted around the peripheral canals, I would 4 agree he is not necessarily referencing alligator 5 holes or some other feature of the landscape. 6 Where he says, when he references numerous 7 other sites in the Refuge interior, it's not plain to 8 me at all what he is referencing. 9 Q. Well, at least it's clear, isn't it, that 10 he is referencing the canal areas, the same canal 11 areas that you yourself have described as damaged in 12 1990 and in 1994? 13 A. With the exception that in 1964 the area 14 appears to have been much smaller than it is today, 15 the areas I would say are generally similar. 16 Q. And is it your opinion that the source of 17 this capacity to sustain cattail growth in 1964 was 18 nutrients introduced through the S-5A or S-6 19 structures? 20 A. My opinion is that that's a reasonable 21 conclusion. 22 Q. Is that the conclusion you would prefer as 23 reasonable over any other that occurs to you? 24 MS. PONZOLI: Was the word prefer, 25 Mr. Smith? Object to the form. 39 1 THE WITNESS: I believe I stated earlier 2 that the source of the nutrients would vary from 3 site to site, and there may be other 4 explanations for particular locations. 5 BY MR. SMITH: 6 Q. Can you think of any candidates as 7 reasonable explanations for the occurrence of serious 8 infestations around the peripheral canal and at the 9 south end of the Refuge other than what you have 10 described as nutrient inflow at S-5A and S-6? 11 A. It may be that some of the area was 12 impacted by disturbance of canal construction. 13 Q. Disturbance as capacity to encourage 14 cattail growth? 15 A. Disturbance may have the capacity to result 16 in changes in phosphorus availability. 17 Q. What's the etiology of that? 18 A. An example may be when the canals are dug 19 and they go through many layers of peat, they may 20 bring to the surface concentrations of phosphorus 21 that may have resulted from, for example, the 22 presence of a bird rookery in the past, the presence 23 of an alligator hole in the past, the presence of a 24 fire which burned peat in the past. 25 Q. Do you believe it's plausible that the 40 1 construction of these canals in 1960 and before would 2 have unearthed the remains of bird rookeries or 3 alligator holes or fire ash sufficient to encourage 4 the serious infestations in the perimeter canals and 5 in the south end as Mr. Stieglitz described in 1964? 6 A. The greater the extent to which one wishes 7 to attribute the presence of cattail along the 8 perimeter canal by the unearthing of those types of 9 phosphorus deposits, the less plausible I think the 10 explanation is. 11 In other words, I think for some parts of 12 the infestation it's a plausible explanation. I 13 think to attribute all of it to that is less 14 plausible. 15 Q. It's not likely, is it, that old bird 16 rookery remains or fire residues or alligator hole 17 residues unearthed in the construction of the canals 18 would have produced stands of cattails such as 19 Stieglitz reported of such persistence as to resist 20 this eradication effort, is it? 21 MS. PONZOLI: I'm going to object to the 22 form, and you are arguing. I think he has 23 answered your question. 24 MR. SMITH: Can you answer the question? 25 MS. PONZOLI: He obviously already has. 41 1 THE WITNESS: I'm attempting to understand 2 what you meant by your question. 3 BY MR. SMITH: 4 Q. Well, you get a sense from Mr. Stieglitz' 5 report of a cattail infestation that was fairly 6 substantial and located in an area that was not 7 characterized by active bird rookeries or alligator 8 holes at the time he made the observation, do you 9 not? 10 A. Are we now limiting our discussion to the 11 425 acres of cattail? 12 Q. South end of the Refuge adjacent to the 13 Hillsboro Canal. 14 A. Okay. And your question is? 15 Q. And around the peripheral canals. 16 I'm asking, these areas are not typically 17 characterized by alligator holes or bird rookeries, 18 are they, or are they? 19 A. I am not sure where your question comes 20 from. You were discussing my opinions as to why the 21 cattail is there, what other factors may have been 22 responsible. 23 Q. And I'm asking you the, I'm trying to get 24 you to express your opinion of the probability that 25 the infestations that Stieglitz reported in 1964 were 42 1 attributed to the remains of bird rookeries, 2 alligator holes or fire damage unearthed by the 3 construction. 4 A. As I indicated in a previous answer, I 5 believe that type of explanation is plausible for 6 some of the occurrence. I do not believe it's 7 plausible for the entire occurrence. 8 Q. All right. And you are unable to quantify 9 the causative factor any further than that? 10 A. The source of the increased fertility? 11 Q. Yes. 12 A. As I sit here right now, nothing else comes 13 to mind. 14 Q. But using your definition of an imbalance 15 of flora that you previous used, which I understood 16 to be changes in floral characteristics and 17 consequence of nutrient introduction, was there an 18 imbalance as described by Stieglitz in 1964? 19 A. Given that an effort was implemented to try 20 to reduce the acreage of cattail, it appears to me 21 that Mr. Stieglitz or whoever implemented those 22 efforts believed an imbalance was occurring. 23 Q. Were there cattails in the area of the 24 peripheral canals and at the south end of the Refuge 25 when you came to the Refuge? 43 1 A. Yes, there were. 2 Q. And were they present in what you 3 considered to be objectionable densities? 4 A. Yes. 5 Q. And have they been there ever since? 6 A. You mean have they existed continuously as 7 they existed when I arrived at the Refuge? 8 No, sir, they have not existed continuously 9 as they were when I arrived at the Refuge in January 10 of 1987. 11 Q. And how have they changed? 12 A. How have they changed or how did they 13 change? 14 Q. Either. 15 A. In late 1988 we entered a period of 16 rainfall deficit or drought which resulted in much of 17 the Refuge drying, water not being present on the 18 surface of the marsh. 19 As I recall, sometime in late 1988 or early 20 1989, during a period when portions of the marsh, 21 including some of the area infested by cattail were 22 dewatered, South Florida experienced a freeze. 23 And I believe in May of 1989 the Refuge 24 experienced a fire and much of the area that had 25 cattail present when I arrived at the Refuge was 44 1 burned. After the fire, the cattail was not there. 2 Q. All right, sir. 3 A. So at that point in time the distribution 4 of cattail was different from what it was when I 5 arrived at the Refuge. 6 Q. Okay. And did it come back? 7 A. Yes, sir, it has come back. 8 Q. All right. Was it at the recommendation 9 and request of the Fish & Wildlife Service that the 10 project was expanded to enclose Loxahatchee with 11 dikes? 12 MS. PONZOLI: Do you understand the 13 question, Dr. Maffei? 14 THE WITNESS: I am not sure if you are 15 asking if the Fish & Wildlife Service designed 16 that portion of the project or if the Fish & 17 Wildlife Service had an influence on the manner 18 in which the project -- and I assume we are 19 talking about the central and South Florida 20 project -- 21 BY MR. SMITH: 22 Q. Well, I'm not suggesting that the Wildlife 23 Service designed it, but I'm asking you whether the 24 Fish & Wildlife Service from your knowledge of the 25 records did influence that portion of the project as 45 1 included the sequestration of the Refuge behind 2 levees and canals and did so affirmatively seeking 3 that result. 4 A. I'm not aware that the area included as 5 Loxahatchee National Wildlife Refuge or Conservation 6 Area-1 would not have been surrounded by a levee were 7 it not for the Fish & Wildlife Service. I'm not 8 aware that that's the case. 9 I do believe that Fish & Wildlife Service 10 had an impact on the manner in which the levees and 11 canals were constructed. 12 Q. Well, can you confirm this, that the 13 project as originally designed and approved by 14 Congress in 1948 did not have the area later known as 15 Water Conservation Area Number 1, the major part of 16 Loxahatchee today, enclosed by dikes and canals, did 17 it? 18 A. The documents that I am aware of from the 19 late forties to early fifties included various 20 indications that that portion of the Everglades would 21 not be drained. 22 I don't recall, you may be able to show me, 23 I don't recall documents which exclude that area. 24 MR. SMITH: Let me show you a document and 25 ask you if you are familiar with it. This is a 46 1 Preliminary Evaluation Report on the Effects on 2 Fish and Wildlife Resources of the Everglades 3 Drainage and Flood Control Project by the Fish & 4 Wildlife Service, October 1947, and I ask that 5 it be marked as Exhibit A to the Maffei 6 deposition. 7 (The document was marked 8 Maffei Exb. No. A.) 9 MS. PONZOLI: Mr. Smith, is there some 10 internal consistency that will become apparent 11 to your exhibit letters and numbers over time? 12 MR. SMITH: These are the same exhibits as 13 you have previously seen in the Neely 14 deposition. I'm using the same numbers. When I 15 get to a new exhibit that goes beyond the 16 letters that I used then, I'll identify it, but 17 for consistency and to reduce confusion, I have 18 used the same letters. 19 MS. PONZOLI: Okay. 20 BY MR. SMITH: 21 Q. I'm referring you to Exhibit A for 22 identification, Dr. Maffei, and particularly to the 23 end of this document, and recognizing that it's hard 24 to read. Perhaps you have seen a more legible copy 25 of this. 47 1 Can you tell me whether you have ever seen 2 this document before? 3 A. I have seen this document. I don't know 4 whether I have seen a more legible copy. 5 Q. Well, on page 20 under the heading 6 Recommendations, paragraph 44 reads, "U.S. Fish & 7 Wildlife Service submits for consideration the 8 following preliminary recommendations with a view to 9 obtaining the fullest practicable development of the 10 fish and wildlife resources concerned: (a), that the 11 Hillsboro and North New River Canals be widened and 12 deepened and that the spill removed be placed on the 13 north or northeast banks to form continuous levees, 14 particularly along the boundaries of the Broward 15 County and Palm Beach County Conservation Areas." 16 Pausing there, does that refresh your 17 recollection or otherwise assist you in answering my 18 question, did not the Fish & Wildlife Service make 19 recommendations in the early stages of this project 20 that these areas be enclosed? 21 A. Well, this appears consistent with my 22 understanding that Fish & Wildlife Service commented 23 on the development of the areas. 24 They reference Broward County and Palm 25 Beach County Conservation Areas, so those areas were 48 1 already present in whatever plans they were 2 commenting on. 3 Q. Well, do you agree the Fish & Wildlife 4 Service recommended that the Hillsboro, North New 5 River Canals be widened and deepened? 6 A. That's what it says. 7 Q. And that the spoil be placed on the banks 8 in such a way to form continuous levees? 9 A. That's what it says. 10 Q. And so whether that was a proposal of a new 11 idea or an endorsement of the old one, the Fish & 12 Wildlife Service supported that idea, did it not? 13 MS. PONZOLI: Object to the form of the 14 question. 15 THE WITNESS: That's what this document 16 would indicate. 17 BY MR. SMITH: 18 Q. And in part b, did the Fish & Wildlife 19 Service support the idea of placing controlled 20 structures in those levees for the control of water 21 levels in the areas named, including the Hillsboro, 22 the Palm Beach County conservation area, which is now 23 WCA-1 or Loxahatchee? 24 A. That's what part b of this says. 25 Q. This reference in part c to a feeder canal 49 1 from the junction of the northeast rim canal to the 2 West Palm Beach Canal, proposing this feeder canal be 3 constructed to the north boundary of the Palm Beach 4 County Conservation Area, does that have meaning to 5 you? 6 Do you know what they are talking about 7 there? 8 A. My recollection, Mr. Smith, is that the 9 alignments of levees and canals changed, and this 10 particular reference may make more sense relative to 11 whatever documents the authors were reviewing at the 12 time. 13 Q. Than it makes to what we know is on the 14 ground today? 15 A. Than it makes today. 16 Q. You can't identify that feeder canal with 17 reference to something that exists today? 18 A. If the purpose for this was to get water 19 from the West Palm Beach Canal into the conservation 20 area to be located in Palm Beach County, then the 21 S-5A pump would serve that purpose, as would the S-5A 22 south structure. 23 Q. In part d, do you agree that the Fish & 24 Wildlife Service appears there to have recommended 25 that dewatering pumps in the agricultural area be 50 1 operated in such a way that the major portion of the 2 discharge would flow directly into the nearest 3 conservation area? 4 A. That is what statement d appears to say. 5 Q. Would it be a fair summary not only of 6 this, but of the other literature at the time, 7 Dr. Maffei, that Fish & Wildlife Service 8 enthusiastically supported having the agricultural 9 area to be the prime source of its surface water 10 supply? 11 MS. PONZOLI: Object to form. What's fair 12 and what's enthusiastic are highly subjective 13 terms. 14 THE WITNESS: My recollection of the 15 documents include statements by Fish & Wildlife 16 Service personnel that they were concerned with 17 the loss of habitat that would result from 18 construction of the project. 19 Their recommendations in my opinion then 20 were being provided as a result of the 21 development of a project which, while they may 22 not have supported enthusiastically or 23 otherwise, was going to be built. 24 And my belief is that they were attempting 25 to modify the project as much as possible, so 51 1 that what habitat were left would be most useful 2 and easily managed. 3 BY MR. SMITH: 4 Q. And as part of that strategy, did the Fish 5 & Wildlife Service embrace the idea of receiving its 6 water supply in surface water from the Everglades 7 Agricultural Area? 8 MS. PONZOLI: Again, I'll object to the use 9 of the term embrace as being highly subjective. 10 THE WITNESS: It's my opinion that, based 11 on looking at this page 20 of the exhibit you 12 have given me, that the authors believed that 13 water would be useful for managing and 14 maintaining the area. 15 BY MR. SMITH: 16 Q. Now you have referred to a prior and by 17 your likes a more fundamental observation made by 18 Fish and Wildlife decrying the loss of habitat, and I 19 think that verb was the verb chosen by Fish and 20 Wildlife. 21 Are we referring to the same statement that 22 was included in House Document 643? 23 A. Probably, yes. 24 Q. What habitat in your opinion was Fish and 25 Wildlife referring to as lost, and by what causes? 52 1 A. My opinion is that individuals from the 2 Fish & Wildlife Service may have been responding to 3 the plan to create an agricultural area of some 700 4 plus thousand acres where at the point in time when 5 this plan was being developed, hundreds of thousands 6 of those acres were still wetlands. 7 Q. So in your opinion, the reference to the 8 loss of habitat was not a reference to the loss of 9 habitat or a radical change of habitat in the 10 conservation areas; is that correct? 11 A. That's correct. 12 Q. Is your interpretation of that just based 13 upon the language employed or do you have some 14 underlying further information that you could help us 15 with? 16 A. My interpretation of that is based on 17 simply, for example, looking at the map that's in the 18 exhibit which you gave me, and which a fairly large 19 agricultural area is delineated, and there were 20 substantial amounts of wetlands in that agricultural 21 area at the time this plan was developed, and those 22 wetlands, that habitat was slated for drainage and 23 development as agricultural lands, if that is a loss 24 of habitat. 25 Q. All right, sir, thank you. 53 1 Incidentally, that was the map I was 2 looking for when we were speaking about enclosing 3 Water Conservation Number 1. 4 As of the time this report was made, what 5 was the apparent design of the Palm Beach County 6 Water Conservation Area as regards its enclosure? It 7 wasn't to be enclosed on the east, was it? 8 A. My interpretation of this map indicates 9 that the portion of the conservation areas located 10 within Palm Beach County already had existing dikes 11 where improvement will probably be required on their 12 eastern side. 13 Q. And those improvements were then later made 14 to completely sequester Water Conservation Area 15 Number 1, were they not? 16 A. A canal and levee was put up on the eastern 17 side of the conservation areas within Palm Beach 18 County. 19 I don't know the extent to which the dikes 20 that are depicted on this map had already completely 21 sequestered, as you put it, those conservation areas 22 from the east. 23 Q. Well, the effect of the improvement was to 24 assure a complete sequestration; was it not? 25 MS. PONZOLI: I object to form. 54 1 THE WITNESS: The effect of the canals and 2 levees was to sequester, as you put it, the area 3 known as Water Conservation Area 1 from 4 surrounding areas to a certain degree. 5 BY MR. SMITH: 6 Q. Can you say from your familiarity with 7 records of the Fish & Wildlife Service at the Refuge 8 and otherwise in 1949 that the Fish & Wildlife 9 Service recognized that the primary purposes of the 10 flood control project were to provide for storage of 11 excess rainfall and prevent flood damage, provide for 12 surface and subsurface irrigation for farms, and to 13 maintain adequate head of fresh water, to prevent 14 salt water intrusion? 15 MS. PONZOLI: I'm going to object to form. 16 Federal law was whatever the federal law was, 17 and I don't know that a sub-agency would have 18 the right to differ from whatever the federal 19 law said. 20 MR. SMITH: I object to Ms. Ponzoli's 21 coaching the witness, making speeches on the 22 record. 23 MS. PONZOLI: I'm sorry, Mr. Smith. I am 24 sitting here -- 25 MR. SMITH: I have been very patient with 55 1 you, Ms. Ponzoli. 2 MS. PONZOLI: Mr. Smith, I have been 3 patient with you. You raise your voice 4 continually and I sit here and endure it and you 5 ask unanswerable question after unanswerable 6 question with which Dr. Maffei works and deals, 7 and so I would maintain that this record should 8 show that I have been patient with you. 9 Maybe it's time for a break. We have been 10 here for over two hours. 11 MR. SMITH: Let's answer this question. 12 MS. PONZOLI: Would you read it back, 13 please? 14 (Thereupon, a portion of the record 15 was read by the reporter.) 16 MS. PONZOLI: I would like to reinstate my 17 former objection. 18 MR. SMITH: All right. 19 THE WITNESS: I would say based on my 20 understanding and interpretation of documents 21 from that time period, both of the Fish & 22 Wildlife Service and otherwise, it was clear 23 that there was considerable desire on the part 24 of people in Florida to build a project, to have 25 the Corps, the federal government to build a 56 1 project to protect them from excess water. 2 I would say that other purposes were 3 designed into the project. 4 BY MR. SMITH: 5 Q. According to the Fish & Wildlife, have you 6 seen contemporaneous records, letters of Fish & 7 Wildlife Service internal to the Fish & Wildlife 8 Service or internal to the Department of the Interior 9 which express a consciousness by the authors of what 10 they deem to be the primary purposes of this project? 11 Have you seen such documents? 12 MS. PONZOLI: Again, I will reinstate my 13 objection that federal law is federal law, and I 14 don't believe that sub-agencies have the right 15 not to recognize it. 16 THE WITNESS: I believe I have seen some 17 documents where the project was discussed. 18 BY MR. SMITH: 19 Q. And was it described as I have just 20 described it to you as having that three-fold 21 purpose? 22 A. I don't particularly recall that at this 23 point in time. 24 Q. Did House Document 643 express that 25 three-fold purpose? 57 1 A. My recollection is that there were several 2 purposes beyond those. 3 Q. Do you recall, I'm sure you must have 4 looked at the paragraph that we are thinking about, 5 Dr. Maffei, House Document 643, describing what it 6 characterized to be the primary purposes of the 7 project? 8 MS. PONZOLI: Same objection as before. 9 THE WITNESS: It's been quite awhile since 10 I read the house document that you are referring 11 to, and while I remember references to purposes 12 of the project, I don't recall at this point in 13 time -- 14 BY MR. SMITH: 15 Q. You don't recall a description of the 16 primary purposes? 17 MS. PONZOLI: Mr. Smith, what is the 18 relevance of all of this? We are litigating a 19 SWIM challenge under Florida law. 20 I really -- you know, we have endured a 21 great deal of this, but you ought to point me 22 somewhere where we are going for why we are 23 going through all of this and what relevance it 24 has to the state law that we are litigating. 25 MR. SMITH: Okay, surely. What this 58 1 signifies, Ms. Ponzoli, is that the United 2 States through its various agencies, indeed the 3 records of the United States Congress in 1949 4 declared that the primary purposes of the 5 project that was then authorized by Congress was 6 as I have stated on page 2 of the report, and 7 I'll show it to the witness in a moment, with 8 some ancillary advantages that would occur in 9 the area of fish and wildlife. 10 The Fish & Wildlife Service entered into a 11 license and cooperative agreement with the state 12 of Florida whereby the Service was granted the 13 right to use Water Conservation Number 1 for 14 Fish & Wildlife conservation consistent with the 15 primary purposes of the project which were as I 16 have described. 17 The Fish & Wildlife Service itself 18 acknowledged in various documents, including 19 documents exchanged between the Refuge manager 20 and the Everglades Refuge and the regional 21 director in Atlanta, Mr. Silver, in 1949, 22 surveying the advantages and disadvantages of 23 different regional sites for wildlife 24 preservation, acknowledged that the efforts of 25 the Service to establish and operate a wildlife 59 1 refuge in the Palm Beach County Conservation 2 Area would be subject to the primary purposes as 3 I have described. 4 The Florida law that you speak of makes 5 provision for moderating provisions and for 6 other influences upon the stringency, and locale 7 of regulation is based upon irretrievable 8 manmade conditions such as this project and 9 discharges that were permitted prior to a 10 certain date. 11 The United States is not in a position to 12 deny the purposes that the United States did 13 self-espouse as being the purpose of the project 14 and is not in a position to deny that the 15 subservience of this Loxahatchee Refuge 16 deliberately placed as it was where it was must 17 be taken into account in the regulation under 18 Florida law or any other law on persons who in 19 reliance on this arrangement came in and 20 established farming. 21 MS. PONZOLI: I think our quarrel is with 22 the moderating provisions which you are not 23 really questioning this witness on and those 24 other provisions, Mr. Smith. 25 What the federal law is, the federal law 60 1 is, and we would maintain that it is supreme, 2 not subservient. 3 MR. SMITH: Okay. 4 THE WITNESS: I want to take a break. 5 MR. SMITH: All right. 6 (Thereupon, a recess was taken.) 7 MR. SMITH: Let's mark as Exhibit B-3 to 8 Dr. Maffei's deposition this copy of the House 9 Document 643. 10 (The document was marked 11 Maffei Exb. No. B-3.) 12 BY MR. SMITH: 13 Q. Turn to page five of that, if you would 14 please, Dr. Maffei. 15 MS. PONZOLI: I would like the court 16 reporter to note that the United States would 17 like copies of all of these exhibits, even 18 though they are already exhibits to Neely's 19 deposition, also attached to this transcript. 20 And may I ask on the record, Mr. Smith, I 21 see the Neely -- 22 MR. SMITH: Yes. 23 MS. PONZOLI: -- is here. Have you 24 retrieved the originals or do you have -- you 25 have your copy of Neely that had the original? 61 1 MR. SMITH: This is the original. I'm 2 using a common original. 3 MS. PONZOLI: All right. That's fine. I 4 just want to understand what's going on so when 5 I get my copy, I'll know. 6 BY MR. SMITH: 7 Q. Would you look at page five? Do you 8 recognize House Document 643, Dr. Maffei? 9 A. Yes. 10 Q. I'm referring to you page five, paragraph 11 number five. 12 MS. PONZOLI: I'm not sure we are with you 13 yet. 14 BY MR. SMITH: 15 Q. Paragraph five on page 2 of the report of 16 the Chief of Engineers, United States Army, which 17 reads "Development of the comprehensive plan of 18 improvement would forward a high degree of flood 19 protection throughout this area. It would provide 20 for removal of excess waters in wet seasons and for 21 their control, storage, and use in maintaining water 22 levels during dry periods. Adequate control of water 23 levels is essential for agricultural use of lands in 24 this area and for maintenance of municipal water 25 supplies. The comprehensive plan would benefit in 62 1 varying degrees over 2,300,000 acres of land, as well 2 as numerous cities and towns. In addition to those 3 primary purposes, the improvements would reduce the 4 dry season intrusion of salt water into lands and 5 water supplies of coastal areas. Its features would 6 provide substantial benefits from the preservation of 7 fish and wildlife resources." 8 Wasn't it understood by the Fish & Wildlife 9 Service, Dr. Neely, at the time from this language 10 that I have quoted that the primary purposes included 11 the irrigation of agricultural lands and flood 12 control and water storage, and in addition to those 13 primary purposes, had the benefits described for fish 14 and wildlife? 15 MS. PONZOLI: I'm going to object, 16 Mr. Smith. The document says what the document 17 says, and Dr. Maffei is not compelled to 18 speculate on what the Fish & Wildlife Service 19 thought or felt or embraced. 20 This document is a federal document and it 21 says what it says and that is sufficient, and 22 you are certainly welcome to argue it to the 23 court in any manner, shape or form you wish. 24 This witness does not have to speculate on 25 what the Fish & Wildlife Service thought, felt, 63 1 embraced or in any other manner did at that 2 time. And you can read 100 Fish & Wildlife 3 Service documents to him and we can each time 4 confirm that they say what they say, but it will 5 go no further than that. 6 BY MR. SMITH: 7 Q. Will you answer the question, please, sir? 8 A. First of all, my name is Dr. Maffei, not 9 Dr. Neely. 10 Q. I beg your pardon. 11 A. You misread one word or you said its 12 features would provide substantial benefits. It 13 should say "its features would produce substantial 14 benefits." 15 Q. Produce, all right, sir. With those 16 corrections, can you answer the question? 17 A. The statement does say "In addition to 18 these primary purposes, the improvements would," and 19 then additional benefits, whether you read that to 20 mean additional primary purposes or additional 21 benefits is a matter of interpretation. It says what 22 it says. 23 Q. What's your interpretation? 24 A. My interpretation is that a project was 25 being developed and it was recognized that the 64 1 impetus for providing the project was, my 2 understanding of the circumstances was largely 3 protection of the urban coast from flood waters and 4 other benefits were built into the project. 5 And among those were creation of an 6 agricultural area, creation of water conservation 7 areas which would provide fish and wildlife benefits 8 and creation of a system that attempted to insure 9 water in portions of the Everglades that were being 10 contemplated at that time as requiring federal 11 protection. 12 Q. From your review of the contemporaneous 13 documents generated by the Fish & Wildlife Service, 14 can you say whether those documents generally reflect 15 that the primary purposes were rather to provide for 16 storage of excess rainfall and prevent flood damage, 17 to provide irrigation for farms and to maintain a 18 head of fresh water and that benefits which were 19 conceived to be the result of those primary purposes 20 included the opportunity to maintain wildlife 21 habitat? 22 MS. PONZOLI: Object to form. It's a 23 compound question and it's a compound question 24 that's been asked repeatedly, and it reflects 25 whatever the reading of the documents that we 65 1 have discussed repeatedly reflects. 2 I'm not quite sure why it's necessary, 3 Mr. Smith, to have federal witnesses read 4 documents out loud. I think you read them very 5 well. 6 THE WITNESS: I believe I answered this 7 question earlier, and my answer was along the 8 lines that Fish & Wildlife Service personnel 9 understood that this project was going to be 10 built and their efforts were aimed at providing 11 where they could benefits for fish and wildlife 12 and their habitat that may not have been 13 provided otherwise. 14 I believe that any modifications which may 15 have resulted to the project because of comments 16 from Fish & Wildlife Service reflect the fact 17 that preservation of fish and wildlife habitat 18 was an important enough component of the project 19 to effect changes. 20 BY MR. SMITH: 21 Q. But none of those changes were changes to 22 the primary purpose of storing water, providing for 23 irrigation discharged from the agricultural area and 24 maintaining municipal water supplies, were they? 25 A. I don't know the extent to which those 66 1 changes impacted the purposes which you describe as 2 primary. 3 MR. SMITH: Let me have this marked for 4 identification as Exhibit C to Dr. Maffei's 5 deposition. It's a series of documents 6 previously exhibited with Mr. Neely's deposition 7 as Composite Exhibit C, and I'm referring to a 8 letter from Refuge Manager, Everglades Refuge, 9 Gerald F. Baker, to the Regional Director of the 10 Fish & Wildlife Service in Atlanta dated 11 October 27, 1949, re proposed Loxahatchee 12 National Wildlife Refuge, Fish & Wildlife 13 Service document number 128, beginning at Bates 14 number 10147 and continuing to 10152. 15 (The document was marked 16 Maffei Exb. No. C.) 17 BY MR. SMITH: 18 Q. I call your attention particularly to 19 page 2 in which Mr. Baker states what he recites to 20 be the three purposes of the retention units and the 21 further statement, "Development and management 22 measures should be designed to provide the most 23 favorable wildlife habitat conditions that will be 24 possible without conflicting with the primary 25 purposes of the proposed refuge and other water 67 1 retention areas. I believe this can be done and will 2 justify fully establishment of a National Wildlife 3 Refuge on Retention Area No. 1." 4 MS. PONZOLI: Do you want us to read it? 5 MR. SMITH: I'm calling his attention to 6 what I just read and I want to ask him a 7 question about it after he has read it himself. 8 BY MR. SMITH: 9 Q. My question, Dr. Maffei -- 10 MS. PONZOLI: Wait, give him time to 11 finish, Mr. Smith, please. 12 Mr. Smith, I would like the record to 13 reflect that I don't necessarily question that 14 these aren't authentic copies of federal 15 documents, but I don't necessarily concede they 16 are either. I am trying to aid you in your 17 efforts to ask for records custodians, 18 et cetera. 19 Did these records come from our files? I 20 will assume for your purposes in these 21 depositions that they did. I have no personal 22 knowledge of it, so I have to go on that 23 assumption. 24 MR. SMITH: You have no personal knowledge 25 that you produced these records? 68 1 MS. PONZOLI: No, sir, I do not, no, sir. 2 From the millions of documents that I have 3 produced to you and the other gentlemen at this 4 table, I don't think there is any human being 5 who could have personal knowledge that they had 6 produced those documents from five federal 7 agencies. 8 No, sir, I have no personal knowledge, but 9 I will give you the benefit that these are 10 accurate records, but I want the record to 11 reflect that I do not know that for a fact, and 12 if they are not, our answers were based on an 13 assumption that you had produced accurate 14 records. 15 BY MR. SMITH: 16 Q. The question is does that appear to be a 17 communication such as I have described from the 18 Refuge management of the Everglades Refuge to the 19 director in Atlanta of your agency? 20 MS. PONZOLI: Is that what it says, 21 Dr. Maffei? 22 THE WITNESS: It says to Regional Director 23 in Atlanta from Refuge Manager, Everglades 24 Refuge, subject, Proposed Loxahatchee National 25 Wildlife Refuge, dated 10-27-49. 69 1 That's what it says. 2 BY MR. SMITH: 3 Q. Does that appear to be a document of the 4 Fish & Wildlife Service? 5 A. It appears to be. 6 Q. Has it got a familiar letterhead? 7 A. Familiar? It says Office Memorandum, 8 United States Government. We don't have any 9 letterhead that has that style of title, although we 10 have letterheads that have some other wording. 11 Q. Do you have any of these 1949 documents at 12 the Loxahatchee Refuge? 13 MS. PONZOLI: Unless they have copies of 14 Mr. Neely's deposition, they must have these 15 documents. 16 THE WITNESS: We have copies of these 17 documents which it's my recollection were 18 obtained subsequent to the production in which 19 Bates number FSW-00000128 would have been 20 affixed. 21 It's possible we have other copies of these 22 documents, but my awareness of these documents 23 followed the production in Atlanta of these 24 documents. 70 1 BY MR. SMITH: 2 Q. Did you look at these documents in Atlanta? 3 A. No, sir, I did not. 4 Q. Very well. Have you any documents, sir, 5 from 1949 in your possession at Loxahatchee? 6 MS. PONZOLI: Other than the ones you have 7 produced? 8 MR. SMITH: These are the ones you have 9 produced. 10 BY MR. SMITH: 11 Q. When you came to the Refuge and took charge 12 of the biological aspects of the Refuge operation, 13 did you have a file of historic documents relating to 14 the Refuge? 15 A. There is a large number of documents that 16 predated my arrival at the Refuge. 17 Q. All right. And before this production in 18 which this Bates number was attached to this 19 document, did you ever conduct an inventory of those 20 documents? 21 A. We produced documents prior to the 22 production of these documents in Atlanta. I don't 23 know that what we did would be considered an 24 inventory. 25 Q. All right. My question is does this 71 1 document reflect a consciousness of the author of it 2 at the time in your opinion that the primary purposes 3 were as described in that paragraph of the document 4 which I have read? 5 MS. PONZOLI: Object to form. I don't 6 think this witness is called to comment on the 7 consciousness of authors in 1949. 8 You can answer if you wish, Dr. Maffei. 9 I consider this whole line of questioning 10 very close, if not harassment, Mr. Smith. 11 THE WITNESS: My opinion is that the author 12 believes that there were reasons for the 13 construction of the project and that operation 14 of the project could occur without conflict with 15 management of the areas of wildlife habitat. 16 BY MR. SMITH: 17 Q. What he says was that the management of the 18 areas could be carried on without conflict with the 19 primary purposes, did he not? 20 MS. PONZOLI: He said what he said, 21 Mr. Smith. We have been back and forth on this. 22 THE WITNESS: Those are the words. 23 BY MR. SMITH: 24 Q. All right. May I have the exhibit a 25 moment, please, sir? 72 1 Does the name Walter Gresh mean anything to 2 you? 3 A. Walter who? 4 Q. Gresh. 5 A. It's familiar. Doesn't have any particular 6 meaning to me other than it's familiar. 7 Q. I refer you to the last document in this 8 series, which is signed by Walter A. Gresh, Acting 9 Regional Director. This is Fish & Wildlife Service 10 document number 92, Department of the Interior, Fish 11 & Wildlife Service, representing a proposal for the 12 establishment of a National Wildlife Refuge in 13 connection with the project. 14 I ask you to refer to it sufficient to 15 acclimate yourself to it and identify it was 16 apparently a document of the Fish & Wildlife Service 17 produced by the Fish & Wildlife Service, prepared by 18 Dr. Walter Gresh, Acting Regional Director, on 19 April 5, 1950. 20 MS. PONZOLI: May I hear that question 21 again, please? I think it has some improper 22 predicates in it, but I'm not sure. Let me just 23 hear it again. 24 (Thereupon, a portion of the record 25 was read by the reporter.) 73 1 MS. PONZOLI: I'm going to object that 2 unless Dr. Maffei indicates to us he has 3 knowledge that this document is identified as 4 the document you have said and was produced and 5 I guess written by Dr. Gresh and has personal 6 knowledge of Mr. Gresh's handwriting, I don't 7 think this witness is competent to testify as to 8 the -- I guess the authenticity of the document 9 is what you are trying to use it for. 10 Now if he does have that personal 11 knowledge, he certainly is welcome to tell you 12 that. If he doesn't, I object to the entire 13 question as compound, improper and containing 14 predicates not in this record. 15 BY MR. SMITH: 16 Q. Do you recognize this as Dr. Gresh's report 17 representing the proposal for the establishment of 18 the Loxahatchee Wildlife Refuge? 19 A. I recognize this document as being one 20 which we currently have at the Refuge that says what 21 it says. 22 Q. Do you have any doubt, Dr. Maffei, that 23 this is a copy of an authentic expression by 24 Dr. Walter Gresh dated as of the date it's indicated 25 there on the subject of the establishment of the 74 1 Refuge of which you are now an officer? 2 MS. PONZOLI: Object to form. 3 THE WITNESS: I have no basis for doubting 4 that. 5 BY MR. SMITH: 6 Q. All right. Well, do you doubt it? 7 A. I have no basis. 8 MS. PONZOLI: I don't think what he doubts 9 or believes is relevant here, Mr. Smith. This 10 is my whole objection to this entire line. This 11 is probably about the third day I have spent 12 doing this with you. 13 You have those documents. These people can 14 only say yes, they come from their records, or 15 they don't come from their records, and that's 16 the extent of it. 17 And you are free to argue whatever you wish 18 to argue from them, but that's the extent of 19 what you can obtain from any live witness now on 20 these records. 21 MR. SMITH: I think I am entitled to ask 22 the witness for his familiarity of the records 23 of the Wildlife Service on the subject of which 24 he is an expert. 75 1 BY MR. SMITH: 2 Q. So that's what I'm asking you. You say you 3 have no reason for doubting it. 4 Do you doubt the authenticity of this 5 document? 6 A. It's my understanding that this is a copy 7 of a document that was produced in Atlanta by the 8 Fish & Wildlife Service, and I am not sufficiently 9 familiar with any of those documents to be able to 10 read them and say yes, this is what the original copy 11 said. 12 I have no reason to doubt that this is a 13 copy of the document. I don't doubt it as I sit 14 here. 15 Q. Do you doubt as you sit here that Dr. Gresh 16 so expressed himself in 1950 to the director of the 17 appropriate division of the Department of the 18 Interior? 19 A. I don't doubt that Walter A. Gresh signed 20 this letter. I have no knowledge if he wrote it or 21 not. 22 Q. Look at page 3 of the letter, please, Bates 23 number 10292. 24 A. Earlier you asked me to read it and 25 acclimate myself to it. Do you want me to do that or 76 1 just go to page 3? 2 Q. Go to page 3. 3 A. Okay. 4 Q. I call your attention to the listing of the 5 primary functions or purposes of the water retention 6 areas being "to prevent flood damage by providing 7 storage for excess rainfall, to provide surface and 8 subsurface irrigation water for farms, orchards, and 9 grazing lands during winter months, and to maintain 10 an adequate head of fresh water in the porous rock 11 underlying the Everglades basin to prevent 12 infiltration of salt," et cetera. And Dr. Gresh 13 there refers to these as the primary objectives, the 14 primary functions on page 3 and the primary 15 objectives on page 4, "to which any auxiliary land 16 use on these areas would be subject." 17 I'm asking you whether that language 18 conveys to you a sense of the author that the 19 wildlife Refuge that he was proposing be established 20 would be an auxiliary land use subject to those 21 primary objectives. 22 MS. PONZOLI: Object to form. 23 Dr. Maffei, you do not have to have 24 opinions on all these really rather silly 25 questions, so I mean I want you to understand 77 1 you do have some rights here. 2 MR. SMITH: If he has no opinion, he may 3 certainly say that. 4 THE WITNESS: Could you read back the 5 question, please? 6 (Thereupon, a portion of the record 7 was read by the reporter.) 8 THE WITNESS: He refers to management of 9 existing fish and wildlife resources on these 10 areas as a complementary land use. 11 That seems a little different than 12 auxiliary to me. My opinion is you can read it 13 and interpret it based on the wording that's 14 there. 15 BY MR. SMITH: 16 Q. Did the records of the Fish & Wildlife 17 Service contemporaneous with the creation of the 18 Loxahatchee Refuge uniformly acknowledge that the 19 uses of the retention areas would be dictated by the 20 three primary areas that were, primary objectives 21 that were recited here by Dr. Gresh? 22 MS. PONZOLI: Object to the use of the word 23 uniformly. 24 THE WITNESS: I don't know that I am 25 adequately familiar with the records of the Fish 78 1 & Wildlife Service at this period of time 2 relative to what they reflected or not. 3 I don't know that I have seen all the 4 records that may have been generated. 5 BY MR. SMITH: 6 Q. Of those that you have seen, have you seen 7 any that were inconsistent with the idea expressed 8 here; namely, that the uses of the retention areas 9 will be dictated by the three primary objectives that 10 Mr. Gresh recited? 11 MS. PONZOLI: Object to form. 12 THE WITNESS: My opinion of the records 13 that I have seen indicated that service 14 personnel did not believe there was a conflict 15 between managing these areas for fish and 16 wildlife habitat and providing what are listed 17 as primary objectives by authors. 18 It's my opinion that to the extent that 19 they believed these areas would remain as 20 wetlands and continue to provide habitat values 21 for fish and wildlife, they believed that 22 establishment of a Refuge Water Conservation 23 Area-1 would not be inconsistent with those. 24 BY MR. SMITH: 25 Q. What was the physical condition of the 79 1 Refuge at the time Mr. Gresh wrote this letter? 2 A. Based on my review of documents generated 3 around this time and prior to it, my understanding is 4 that the Refuge was a marsh. 5 Q. Look at page 3, referring to the first full 6 paragraph, the language "The present trend in the 7 area is toward lower average water stages accompanied 8 by replacement of aquatic vegetation by sawgrass, 9 shrinkage of lakes, and increase in low hammocks and 10 tree islands." 11 Is that a fair statement of the physical 12 condition of the Loxahatchee area in 1950? 13 A. Other than I consider sawgrass to be an 14 aquatic vegetation, this description is consistent 15 with my understanding of what was happening in the 16 area at the time. 17 Q. It's plain that Mr. Gresh considered 18 sawgrass was not an aquatic vegetation; isn't that 19 so? 20 A. Mr. Gresh or whoever wrote that statement. 21 Q. Do you consider sawgrass as an aquatic 22 vegetation? 23 A. It's a marsh plant. 24 Q. No, I asked is it aquatic vegetation? 25 A. I believe it's an aquatic vegetation of 80 1 wetland species, a wetland species. 2 Q. Is it traditionally, sawgrass traditionally 3 classified as aquatic vegetation among your 4 professional peers? 5 A. Sawgrass is described as emergent marsh 6 vegetation. Marshes are aquatic communities. 7 Q. So your answer to my question is yes? 8 A. I believe, the way I interpret the 9 classifications, is yes. 10 Q. At any rate, was the present trend in 1950 11 to be that sawgrass was replacing some other species 12 that Mr. Gresh at least thought were aquatic 13 vegetation? 14 A. That's what appears to be happening and 15 that's consistent with my opinions of the state of 16 the area now known as Loxahatchee Fish & Wildlife 17 Refuge at that point in time. 18 Q. Was there as a consequence of that an 19 inbalance in the flora of the Refuge? 20 A. Are we talking imbalance as refers to 21 caused by introduction of nutrients or are we talking 22 imbalance as refers to changes in community types? 23 Q. Answer it both ways. 24 A. I don't see any evidence of imbalance as a 25 result of introduction of nutrients in surface 81 1 drainage. 2 It appears species shifts were occurring at 3 the time. I don't have enough information here and I 4 don't know what one to look at to discuss imbalance 5 in the natural system. What this looks like to me is 6 what is referred to as succession. 7 Q. Is it your testimony that succession, when 8 it results in one species invading and achieving 9 dominance over another, is not imbalance in any 10 derogatory sense? 11 MS. PONZOLI: Object to form. 12 THE WITNESS: The presence or absence of a 13 particular species may not change the 14 characteristics of the ecosystem to the extent 15 that imbalance would have a derogatory sense. 16 BY MR. SMITH: 17 Q. Is it plain that from the text and context 18 here of this page 3 of Mr. Gresh's observation that 19 he considered that the present trend toward lower 20 average water stages accompanied by the replacement 21 of aquatic vegetation by sawgrass, shrinkage of 22 lakes, increase in low hammocks and tree islands 23 represented a detrimental effect upon the Refuge? 24 MS. PONZOLI: Object to form. Again, I do 25 not believe that Dr. Maffei is called upon to 82 1 interpret Mr. Gresh's comments or to decide what 2 Mr. Gresh meant. The words stand on the page as 3 Mr. Gresh left them. 4 THE WITNESS: It appears to me that 5 Mr. Gresh believed that as the efforts of 6 draining the area prior to the time of this 7 writing had reduced average water stages, that 8 changes were occurring, and he believed that 9 construction of the project, the comprehensive 10 engineering plan as he refers to it, could 11 reverse the trend. 12 BY MR. SMITH: 13 Q. So the trend was detrimental? 14 MS. PONZOLI: You are asking for 15 Dr. Mafffei's interpretation of Mr. Gresh's 16 words, was it detrimental in Mr. Gresh's mind? 17 BY MR. SMITH: 18 Q. Was this an expression at the Fish & 19 Wildlife Service that the trend described by 20 Mr. Gresh was detrimental? 21 MS. PONZOLI: That's a whole different 22 question. 23 MR. SMITH: That's a different one you 24 stated. 25 MS. PONZOLI: No, I was asking in my 83 1 question was your question so I could 2 understand, but if you are going to ask 3 Dr. Maffei to sit here and speak almost in a 4 policy manner on behalf of Fish & Wildlife 5 Service, then I will have to instruct him not to 6 answer, because he cannot speak in a policy 7 manner for Fish & Wildlife Service. He appears 8 as a scientist on their behalf and an expert 9 witness in this proceeding, but it's very 10 difficult to obtain policy speakers from the 11 federal government. 12 So I will ask that you not frame your 13 questions in that particular manner. 14 THE WITNESS: I don't know if this was a 15 policy expression on the Fish & Wildlife 16 Service. 17 BY MR. SMITH: 18 Q. You are referring to Fish & Wildlife 19 Service document number 92 which was forwarded under 20 date of April 7, 1950 by Mr. Gresh to the director in 21 Washington? Cover letter is immediately preceding 22 it, Bates number 10181. 23 A. I am referring to the exhibit we are 24 looking at. 25 Q. Yes. 84 1 A. Yes. 2 Q. I have the sense -- correct me if I'm wrong -- 3 that your opinion in the capacity in which you are 4 professionally qualified is that there is no such 5 thing as an imbalance in natural flora and fauna in 6 the Refuge except as may be caused by farming 7 irrigation discharges. 8 Is that correct? 9 A. I would say that when a term such as 10 imbalance takes on a legal meaning, some of the 11 biological meaning then becomes distorted, if the 12 term ever had biological meaning prior to that. 13 Ecologists have long studied succession. 14 Ecologists have long been aware of the changes in 15 species deposition numbers and diversity and 16 generally describe them as such. 17 Imbalance is a term that means a wide 18 variety of things, and I think using other 19 descriptors or measures of what's happening in an 20 environment is appropriate. 21 Q. Was sawgrass a dominant vegetative feature 22 of the area when the Loxahatchee Refuge was 23 established? 24 A. Sawgrass was apparently a feature of the 25 area when it was established. 85 1 Q. Was it a dominant feature? 2 A. I believe that at some portions of the area 3 it made up a significant component of the plant 4 communities. 5 Q. To the extent that it had become a 6 significant portion of the plant community, was that 7 attributable to the drought conditions that prevailed 8 in the ten years or so before it was established? 9 A. That appears to be the interpretation that 10 could be drawn from the document we have been talking 11 about. 12 Q. Are you aware of any documents 13 contradicting that developmental feature of 14 Loxahatchee at the time that it was established? 15 MS. PONZOLI: Object to the form. 16 THE WITNESS: Am I aware of any documents 17 which indicate that sawgrass was not -- 18 BY MR. SMITH: 19 Q. Not the result of the general drying 20 conditions that had taken place in the years 21 immediately before the Loxahatchee was established. 22 A. Did you say dominant feature? 23 MS. PONZOLI: Do you want to hear it back? 24 (Thereupon, a portion of the record 25 was read by the reporter.) 86 1 THE WITNESS: The map produced by Dr. Davis 2 on or around 1943 which was developed from data 3 acquired during the thirties I interpret to show 4 fairly substantial areas of sawgrass in the 5 portions of the Everglades where Loxahatchee now 6 exists. 7 MR. SMITH: All right. I show you 8 Exhibit 24 for identification and ask that it be 9 marked for identification, which is the Davis 10 map marked similarly in the Neely deposition. 11 It was marked out of sequence with the letters. 12 (The document was marked 13 Maffei Exb. No. 24.) 14 BY MR. SMITH: 15 Q. Do you recognize this as a copy of the 16 Davis map, Dr. Maffei? 17 A. It appears to be a copy of the Davis map. 18 Q. Referring to the legend in the Davis map, 19 what is the principal vegetative characteristic of 20 what is now the Loxahatchee at that time? 21 A. Sloughs, ponds and lakes. I believe that's 22 the legend that fits. 23 Q. Do you agree or disagree that that 24 accurately portrays the conditions at the Loxahatchee 25 at the time representation was made? 87 1 MS. PONZOLI: Object to form. I think we 2 had this same fight in Mr. Neely's deposition in 3 regards to what's accurate or not about this 4 map. 5 You can frame the question a different way 6 and I'll have no objection, Mr. Smith, but you 7 always want us to say this map is accurate. 8 MR. SMITH: Well, I'm asking the witness. 9 BY MR. SMITH: 10 Q. Is the map accurate as of the time it was 11 published? 12 MS. PONZOLI: Then I will voice the same 13 objections I had last time. He has no way of 14 knowing if it's accurate. 15 MR. SMITH: I think he does. 16 MS. PONZOLI: Oh, interesting. I don't 17 think he was born until after 1943. 18 THE WITNESS: The map is consistent with my 19 general understanding of the area. 20 BY MR. SMITH: 21 Q. Now your last prior statement by which we 22 were introduced to this map was that there are some 23 areas on the western perimeter which are marked 24 sawgrass and myrtle that you consider to be within 25 the present boundaries of the Loxahatchee; is that 88 1 correct? 2 A. That's generally correct. 3 Q. To the extent that the predominant 4 characteristic at the time John Davis portrayed this 5 area was sloughs, ponds and lakes, he was not 6 intending to suggest that sawgrass was a significant 7 feature of it, was he? 8 MS. PONZOLI: Object to form. 9 THE WITNESS: Apparently not. 10 BY MR. SMITH: 11 Q. Do you acknowledge that he had another 12 legend code to depict either dense sawgrass areas or 13 moderate to slight sawgrass areas in the Everglades? 14 A. I see four different legends which are 15 identified as sawgrass, followed by some information 16 parenthetically. 17 Q. So Dr. Davis evidently had a classification 18 purpose which permitted him to represent four 19 different gradations of sawgrass presence, and he did 20 not use that except in the case of sawgrass marshes 21 with wax myrtle thickets on the western perimeter of 22 the Loxahatchee; isn't that correct? 23 A. That's correct. 24 Q. Now you are familiar with Dr. Davis' book 25 The Geological Bulletin Number 25? 89 1 A. I have seen it. 2 Q. Is it authoritative? 3 MS. PONZOLI: Object to form. 4 THE WITNESS: It is a useful reference. 5 BY MR. SMITH: 6 Q. Is it generally accepted among 7 knowledgeable experts in your field that the general 8 trend in consequence of these canals being dug in the 9 early 20th century was to deprive the Everglades area 10 of water sources that it previously had in historic 11 times? 12 THE WITNESS: Could you read that back, 13 please? 14 (Thereupon, a portion of the record 15 was read by the reporter.) 16 THE WITNESS: It is certainly my belief. 17 BY MR. SMITH: 18 Q. No one contradicts that, do they, to your 19 knowledge? 20 A. No, to my knowledge, nobody contradicts 21 that. 22 Q. So would you then expect that what is now 23 the Loxahatchee area was considerably drier in 1940 24 than it was in 1900, or let us say the hydroperiod 25 was shorter? 90 1 A. I would feel comfortable saying less water 2 was being delivered to that area. 3 Q. And that would have a natural effect, would 4 it not, on the succession of plant communities in the 5 area over a period of years? 6 A. It's my opinion that water depths and where 7 hydroperiods were not excessive, that is, years, the 8 plant communities were structured by the hydrology. 9 And to the extent that the hydrology was 10 altered, I believe changes in the plant communities 11 would have occurred. 12 Q. And does it appear that in Dr. Davis' 13 opinion, at least as reflected in the 1943 published 14 map, the aquatic vegetation that characterized what 15 is now the Loxahatchee was at least intact as a 16 dominant species, notwithstanding those adverse 17 influences over the years? 18 A. I would say the map depicts the area as 19 being sloughs, ponds and lakes. I don't recall right 20 now if reference was made to whether habitat were 21 intact in the area or not. 22 Q. Well, my question was as Dr. Davis depicts 23 it as of 1943, the reduction of water supply by the 24 drainage to the sea and otherwise had not converted 25 sloughs, ponds and lakes into a vegetative regime 91 1 characteristic of a much drier environment, had it? 2 A. I don't know that you can necessarily 3 conclude that from this map, because Dr. Davis also 4 identified the zone as being custer apple zone, which 5 at the time was largely absent. 6 He also identified the zone being willow 7 and elderberry zone and describes it as being mostly 8 cultivated. So he identified the presence of the 9 zones without reference -- he identified the presence 10 of the zones that he believed existed. 11 In some cases he commented in parentheses 12 as to their state at the time the map was drawn, but 13 perhaps a thorough reading of his transcript would 14 allow me to better answer your question as to whether 15 he believed the areas were, quote, intact. 16 Q. Well, is there any doubt in your mind that 17 when he depicted sloughs, ponds and lakes on this map 18 as predominating in the area which is now Loxahatchee 19 that he meant to convey to the reader of this map 20 that that's what he found on the ground there? 21 A. I believe he was trying to convey that's 22 what he found on the ground there. 23 Q. And are you sufficiently familiar with his 24 book to recognize that he was on the grounds there in 25 a two-year period before this publication? 92 1 MS. PONZOLI: I object. I think it's been 2 asked and answered, and he said if he would 3 refamiliarize himself with the book, he would be 4 more comfortable answering your questions, 5 Mr. Smith. 6 I think that's a predicate underlying all 7 of his answers, and he can't refamiliarize 8 himself with the book as he sits here in a 9 deposition. 10 BY MR. SMITH: 11 Q. Can you answer? 12 A. No, sir. It's been a number of years since 13 I have read that book and I don't recall the time 14 frames. 15 I have read many, many documents over the 16 last seven years relating to various aspects of the 17 Everglades, and the historic documents for the most 18 part were documents that I read upon originally 19 arriving at the Refuge. 20 Q. Have you read Dr. Davis' book since then? 21 A. No, sir. 22 Q. In your declaration I believe you stated 23 that Sagittaria you had come to associate with 24 nutrients; am I correct? 25 A. Yes, sir. 93 1 Q. Was the species Sagittaria a common and in 2 some places a dominant vegetative characteristic of 3 the Everglades of history, let us say in the 4 Loxahatchee area? 5 MS. PONZOLI: May I hear that back again, 6 please? 7 (Thereupon, a portion of the record 8 was read by the reporter.) 9 MS. PONZOLI: I'm going to object to form. 10 It's a uniquely vague question. 11 THE WITNESS: Sagittaria is a genus, and I 12 think representatives of the genus Sagittaria 13 were present throughout the area that's now the 14 Refuge. 15 I don't know as I sit here now of any place 16 Sagittaria would have been considered dominant 17 or not. 18 BY MR. SMITH: 19 Q. And where it was present, did that indicate 20 a relatively higher concentration of nutrient, in 21 your opinion? 22 A. I believe some species of Sagittaria may be 23 better where soil fertility is elevated. 24 Q. Any species that do not fare better where 25 nutrients are elevated? 94 1 A. I would hypothesize that various species of 2 Sagittaria have various requirements for soil 3 fertility. 4 MS. PONZOLI: Mr. Smith, when you finish 5 with Sagittaria, I would ask that we take a 6 lunch break. We have been here three and three 7 quarters hours. 8 MR. SMITH: Sure. 9 MS. PONZOLI: And it's getting on to 1:00. 10 MR. SMITH: All right, let's break now. 11 (Thereupon, a luncheon recess was taken.) 12 BY MR. SMITH: 13 Q. Dr. Maffei, let's see if we can tie down a 14 little bit closer in time the appearance of atypical 15 cattail in the Loxahatchee. 16 We referred to a portion of the SWIM Plan 17 that referred to two dates and Dr. Stieglitz, Walter 18 Stieglitz. 19 MR. SMITH: I'm looking at Exhibit H, which 20 is a document dated June 21, 1962, entitled 21 Ecology of Vegetation Transects A and B, 22 Loxahatchee National Wildlife Refuge -- 23 (The document was marked 24 Maffei Exb. No. H.) 95 1 BY MR. SMITH: 2 Q. -- which on page six in the third paragraph 3 says that "Cattail on the increase and further 4 control measures may be necessitated in the future." 5 Do you see that note? 6 A. Yes. 7 Q. With particular reference to cattail 8 increasing in 1962, have you an opinion as to the 9 cause of it or would your prior answer apply to that 10 as well? 11 MS. PONZOLI: I'm sorry, I wouldn't know 12 what his prior answer was. 13 MR. SMITH: All right. 14 THE WITNESS: My understanding is that 15 these transects were near the perimeter canals, 16 and the discussion we had earlier, factors 17 influencing the development of cattail near the 18 canals, would pertain to these areas as well. 19 BY MR. SMITH: 20 Q. So in the history of the Loxahatchee, would 21 I correctly understand it to be your opinion that the 22 atypical development of cattails at or near the 23 peripheral canals was due in the early sixties to, 24 were associated with the disturbance caused by the 25 building of the canals? 96 1 MS. PONZOLI: Object to the 2 mischaracterization of his former answer. 3 THE WITNESS: I don't believe we have used 4 the word atypical with regard to anything prior 5 to now, so I need to know what you mean 6 atypical. 7 BY MR. SMITH: 8 Q. Well, correct my characterization as 9 necessary to give a descriptive answer of the 10 etiology of the 1962 cattail population remarked on 11 by Mr. Stieglitz in that year. 12 A. My opinion as to how cattail develops is it 13 needs an adequate seed bed in which germination can 14 occur. That is number one. 15 It needs adequate sunlight for the seedling 16 to grow, and it needs adequate soil fertility for the 17 seedling to grow. 18 Absent those, cattails will not become 19 established any place in the world, let alone in the 20 Everglades. 21 Q. Well, is the same not true of any plant? 22 A. Exactly. 23 Q. Well, I was asking you to zero in on 24 cattail in 1962 rather than comparing it to other 25 plants and give us the etiology if you can or will of 97 1 the cattail that Mr. Stieglitz remarked upon in 1962. 2 A. I believe we went over that extensively 3 this morning, that I believed sources for increased 4 fertility were drainage waters in the canals going 5 through the area as well as possibly sources 6 resulting from the construction of the canals 7 themselves. 8 Q. To what extent was the agriculture presence 9 in the EAA in 1962? 10 A. My recollection right now is that at that 11 time -- and I'm doing the best I can to recall the 12 figures that I have read from various documents. 13 As I recall, there was something in excess 14 of 100,000 acres in agriculture at that time. That 15 may be off a little bit. It seems to me that was 16 roughly a number. 17 Q. And do you have an opinion as to whether 18 the drainage from that agriculture was causing an 19 imbalance in natural flora in Loxahatchee at that 20 time? 21 A. Based on my understanding of the ecosystem, 22 it's my opinion that nutrient entering the area in 23 agricultural drainage was either facilitating the 24 development of cattail within the area or creating 25 conditions which would allow for the establishment of 98 1 cattail in the area. 2 Q. Which would what? 3 A. Allow for the establishment of cattail in 4 the area. 5 Q. In your opinion, were the changes taking 6 place in the vegetative character of the Loxahatchee 7 in the sixties due principally to hydrological 8 concerns or to water quality causes? 9 MS. PONZOLI: In the Refuge, did you say? 10 MR. SMITH: In the Refuge. 11 THE WITNESS: Are you referring to any 12 change in particular or just in general? 13 BY MR. SMITH: 14 Q. In general. 15 A. I would have a hard time answering that 16 question, because it's my opinion that changes to the 17 vegetation that occur as a result of hydrologic 18 changes don't occur at the same rate and the same 19 time scale that changes resulting from elevated soil 20 fertility can occur. 21 So your question asked in the way it was, I 22 have difficulty in saying one was facilitating 23 greater change than the other. The Refuge habitats 24 have changed in response both to changed soil 25 fertility and changed hydrology, in my opinion. 99 1 MR. SMITH: Let's mark for identification 2 Exhibit I to Dr. Mafffei's deposition, an August 3 1970 report of the Special Study Team. 4 (The document was marked 5 Maffei Exb. No. I.) 6 BY MR. SMITH: 7 Q. Are you familiar with Exhibit I, 8 Dr. Maffei? 9 A. Yes, sir, I have read the document with 10 this cover page. 11 Q. And that was participated in by a number of 12 biologists and marine scientists whose names you 13 recognize? 14 A. Yes, sir. 15 Q. Are they commenting on changes during the 16 1960s and the character of the vegetation and other 17 changes in the Everglades, including Loxahatchee 18 particularly? 19 A. My recollection of this document is that 20 they did comment on those types of changes. 21 Q. They express the opinion on page 10 that 22 the "Rapid extreme fluctuations in water levels are 23 completely at odds with the natural hydroperiod in 24 the Glades," and do you agree with that? 25 A. There is a sentence which reads, "Rapid 100 1 extreme fluctuations of water levels are completely 2 at odds with the natural hydroperiod in the Glades." 3 I believe that there is -- let me rephrase 4 that. I believe that this is imprecise wording, 5 because fluctuations in water levels do not 6 necessarily impact hydroperiods. 7 Q. You are referring to the next sentence, 8 "Drastic drawdowns of water levels, or rapid rises, 9 in the conservation areas have serious ecological 10 consequences"? 11 A. No, I'm referring to the first sentence, 12 that fluctuations in water levels are at odds with 13 natural hydroperiods. 14 Hydroperiods is a measure of time of 15 inundation, not necessarily a measure of water depth, 16 so water depth may fluctuate without altering 17 hydroperiods. 18 Q. Do you agree or disagree with the statement 19 that "Drastic drawdowns of water levels, or rapid 20 rises, have serious ecological consequences"? 21 A. I agree that those events can have serious 22 ecological consequences. 23 Q. Did such events in the management of the 24 water deliveries to and from the Loxahatchee in 1970 25 cause distress to nesting snail kites? 101 1 A. That is what is indicated by this document. 2 Q. Are you as a Refuge biologist aware of 3 other instances in which the management of water 4 deliveries to and from the Refuge have caused 5 disruption in snail kite populations? 6 A. I am aware that in my opinion, snail kites 7 have not used the Refuge very frequently since the 8 early to mid 1970s, with the exception of a return in 9 the last couple of years. 10 Q. You're dating that to the earlier mid 11 1970s. 12 Have you seen an opinion that they have not 13 used the Refuge since the middle of the 1960s? 14 A. I have seen, such as this reference here, 15 references of kites using the Refuge in the early 16 seventies. 17 So I don't recall having seen an opinion or 18 not having seen an opinion expressing that they 19 haven't used the Refuge since the mid 1960s, but 20 regardless of that, I have seen references to kites 21 using the Refuge subsequent to that time. 22 Q. In the last couple of years? 23 A. In the last couple of years, also in the 24 early to mid seventies. 25 Q. Well, now this study team concluded, did it 102 1 not, that it was hydrological factors that cause a 2 disruption in the snail kite population in 3 Loxahatchee? 4 THE WITNESS: Could you read the question 5 back, please? 6 (Thereupon, a portion of the record 7 was read by the reporter.) 8 THE WITNESS: Certainly for the case that 9 they identified here, I would say that's 10 correct. 11 BY MR. SMITH: 12 Q. They recited here, did they not, that snail 13 kites have not used the Loxahatchee since 1964 and 14 that in 1970 this raptor was nesting in the Refuge 15 for the first time since 1964, and then some rapid 16 shifts in water management reduced the water levels 17 in the canal, dried up the sloughs that the kites 18 were using, causing them to leave the Refuge? 19 A. That's a summary of what's indicated here. 20 Q. To your knowledge, was that correct? Did 21 it correctly record an historical fact? 22 A. That's the information that's provided 23 here. 24 Q. Do you have any other information