440
1 DIVISION OF ADMINISTRATIVE HEARINGS
2 DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA
3 SUGAR CANE GROWERS COOPERATIVE )
OF FLORIDA; ROTH FARMS, INC.; )
4 and WEDGWORTH FARMS, )
Petitioners, )
5 V ) DOAH Case No. 92-3038
SOUTH FLORIDA WATER MANAGEMENT )
6 DISTRICT, an agency of the State)
of Florida, et al., )
7 Respondents. )
FLORIDA SUGAR CANE LEAGUE, INC.;)
8 UNITED STATES SUGAR CORPORATION;)
and NEW HOPE SOUTH, INC., )
9 Petitioners, ) DOAH Case No. 92-3039
V )
10 SOUTH FLORIDA WATER MANAGEMENT )
DISTRICT, an agency of the State)
11 of Florida; et al., )
Respondents. )
12 FLORIDA FRUIT AND VEGETABLE )
ASSOCIATION; LEWIS POPE FARMS; )
13 W. E. SCHLECHTER & SONS, INC., )
and HUNDLEY FARMS, INC., )
14 Petitioners, ) DOAH Case No. 92-3040
V )
15 SOUTH FLORIDA WATER MANAGEMENT )
DISTRICT, an agency of the State)
16 of Florida, et al., )
Respondents. )
17
VOLUME IV (Morning Session)
18 Continued Deposition of Burkett S. Neely, Jr.
19
Taken before Marianne Martini Holmes,
20 Registered Professional Reporter and Notary Public in
and for the State of Florida at large, pursuant to
21 notice of taking deposition filed by the Petitioners
in the above cause.
22 - - -
23 Tuesday, February 22, 1994
319 Clematis Street
24 West Palm Beach, Florida 33401
9:16 - 5:10 p.m.
441
1 APPEARANCES:
2
3 On behalf of the Petitioners Florida Sugar Cane
4 Leage, Inc., United States Sugar Corporation, and
5 New Hope South, Inc.:
6 Earl, Blank, Kavanaugh & Stotts, P.A.
7 One Biscayne Tower
8 Suite 3636
9 Two South Biscayne Boulevard
10 Miami, Florida 33131
11 By: WILLIAM L. EARL, ESQUIRE
12
13 On behalf the Petitioners Sugar Cane Growers
14 Cooperative of Florida, Roth Farms, Inc., and
15 Wedgworth Farms:
16 Hopping, Boyd, Green & Sams
17 123 South Calhoun Street
18 Tallahassee, Florida 32314
19 By: ROBERT P. SMITH, JR., ESQUIRE
442
1 APPEARANCES: (Continued)
2
3 On behalf of the Intervenor, United States of America:
4 Department of Justice
5 99 Northeast 4th Street
6 Miami, Florida 33132
7 By: SUZAN HILL PONZOLI,
8 Assistant United States Attorney
9
10 Also Present: Kim McNally, Paralegal
443
1 - - -
2 I N D E X
3 - - -
4
5 WITNESS: DIRECT CROSS REDIRECT RECROSS
6 BURKETT S. NEELY, JR. (Continued)
7
By Mr. Earl 444
8
9 - - -
10 E X H I B I T S
11 - - -
12
13 NUMBER PAGE NO.
14 NEELY EXB. NO. 10 445
NEELY EXB. NO. 11 458
15 NEELY EXB. NO. 12 465
NEELY EXB. NO. 13 470
16 NEELY EXB. NO. 14 478
NEELY EXB. NO. 15 482
17 NEELY EXB. NO. 16 482
NEELY EXB. NO. 17 504
18 NEELY EXB. NO. 18 519
NEELY EXB. NO. 19 539
19
444
1 P R O C E E D I N G S
2 - - -
3 Thereupon,
4 Burkett S. Neely, Jr.,
5 being by the undersigned Notary Public first duly
6 sworn, was further examined and testified as follows:
7 THE WITNESS: I do.
8 CONTINUED DIRECT (Burkett S. Neely, Jr.)
9 BY MR. EARL:
10 Q. Okay. Mr. Neely, as you know, I'm Bill
11 Earl. I'm here representing the U.S. Sugar
12 Corporation and the Florida Sugar Cane League. This
13 is a resumption of your deposition.
14 Do you recall your deposition being taken
15 back in March, March 29th and 30th of 1993?
16 A. Yes, sir, I do.
17 Q. Have you reviewed the transcript of that
18 deposition?
19 A. Yes, sir.
20 Q. Have you done that recently?
21 A. I reviewed some of it this weekend.
22 Q. Okay, sir.
23 Regarding the opinions you expressed in
24 there, have you changed any of the opinions?
25 A. No, sir.
445
1 Q. Okay. Is there anything else in there that
2 would be inaccurate based on your review?
3 A. There was some confusion when we discussed
4 the boundaries of the refuge along the L-39.
5 Q. All right. And that was not cleared up on
6 the second day when you --
7 A. I think that it was.
8 Q. Okay.
9 A. For me it was.
10 Q. Okay. Other than that, is there any?
11 A. As far as I know, there's no other
12 inaccuracies.
13 Q. Okay, sir.
14 I'm going to ask you again, if you don't
15 understand the question, please ask me to clarify it,
16 would you do that?
17 A. Okay, sir.
18 MR. EARL: Let's mark this as Number 10.
19 (The document was marked
20 Exb. No. 10.)
21 BY MR. EARL:
22 Q. Now, this deposition has been noticed with
23 a request to produce documents and materials,
24 Mr. Neely.
25 A. Um-hum.
446
1 Q. Have you received that?
2 A. Yes, sir.
3 Q. I'm talking about the notice of taking
4 deposition.
5 MS. PONZOLI: Let me see that.
6 (Thereupon, the document was handed
7 to Ms. Ponzoli.)
8 MS. PONZOLI: Mr. Earl, this --
9 THE WITNESS: I haven't seen that.
10 MS. PONZOLI: -- is not labeled the same
11 way mine is, so I'm concerned that I have not
12 seen this one.
13 Mine say notice of taking deposition and
14 have the wrong dates.
15 So if there's a difference in the actual
16 notice between the one you forwarded --
17 MR. EARL: What you have is a re-notice,
18 Mrs. Ponzoli, that's been marked as Number 10,
19 and that's what we're here pursuant to.
20 MS. PONZOLI: Well, I don't know that I
21 received it. Maybe I did.
22 Let me ask you this, Mr. Earl. Is it
23 substantively, except for the dates, the same as
24 the one that was the 11th of February?
25 MR. EARL: Well, I'll have to look at it.
447
1 MS. PONZOLI: My quick proofreading of the
2 two together would indicate that they're the
3 same.
4 Does yours appear to be the same?
5 MR. EARL: I'm still -- I read slower than
6 you do. I'll be with you in just a second.
7 Yes, they appear to be, Suzan.
8 MS. PONZOLI: Okay.
9 THE WITNESS: Mr. Earl, all of the stuff
10 that I brought last time was in response to, to
11 the previous one, and I did not bring everything
12 back that I brought last time such as all the
13 narratives from '51 to '77, '80, '82, '88. I
14 did not bring those.
15 MS. PONZOLI: If they were produced last
16 time that -- well, not produced. If they were
17 selected by you and reproduced, I have copies of
18 them with me because I brought copies of
19 everything that you took last time, Mr. Earl.
20 THE WITNESS: And I concentrated on this
21 letter that you'd sent to Ms. Ponzoli on
22 the 10th.
23 BY MR. EARL:
24 Q. We'll get to that in a second.
25 Have there been any documents you did not
448
1 bring last time that have been generated or created
2 that would be responsive to this since last
3 March 29th and 30th? It's been almost a year,
4 Mr. Neely.
5 A. Only documents that I have that are
6 additional to those that were used during mediation.
7 Q. Okay. Let's if we can, let's nail that
8 down.
9 A. There are probably, any other documents
10 that we have are probably in Dr. Maffei's document
11 box because I looked through my stuff yesterday and I
12 didn't have anything new.
13 Q. Did you review all your documents to
14 determine whether you have produced any documents
15 generated -- whether there were any documents
16 generated in the last year?
17 A. I reviewed what was in my office that I had
18 in the boxes left over from the last time we were
19 here, and as I said, all the documents that have been
20 produced since then are in Dr. Maffei's possession
21 probably in his document box because I did not have
22 any.
23 MS. PONZOLI: I think he's answering yes,
24 Mr. Earl, he reviewed his documents and --
25 MR. EARL: Well, let him answer,
449
1 Ms. Ponzoli.
2 THE WITNESS: Yes, sir, I reviewed my
3 documents.
4 BY MR. EARL:
5 Q. And were there any documents that you came
6 across that had been generated in the last year that
7 you haven't produced today?
8 A. Yes, sir, there were a lot of documents
9 that had been generated since we did my last
10 deposition.
11 Q. Okay. Are any of those responding to the
12 21 categories in the notice to produce we've just
13 identified?
14 MS. PONZOLI: I think he answered that,
15 Mr. Earl, that they were mediation settlement
16 documents. I mean, I'm not -- if there are
17 other documents that are responsive that are not
18 mediation settlement and they are in Mr. Neely's
19 possession, we'll bring them, but --
20 MR. EARL: Well, that was the purpose of
21 the notice, Ms. Ponzoli.
22 MS. PONZOLI: I understand that.
23 MR. EARL: I'm trying to find out whether
24 he's complied.
25 MS. PONZOLI: He has complied.
450
1 BY MR. EARL:
2 Q. Okay. Would you go to the notice,
3 Mr. Neely, item 21.
4 A. Okay.
5 Q. Narrative reports for the Loxahatchee,
6 annual narrative reports?
7 A. Yes, sir.
8 Q. I think the last time we met you had
9 produced the 1991 was the last one.
10 Does the 1992 exist now?
11 A. I thought I produced the 1992.
12 The 1992 does exist and the '93 is in first
13 draft form.
14 Q. Okay. Did you bring the '92 with you?
15 A. No, sir. It was not in its proper place.
16 Right now they are rewriting narratives or they're
17 writing the '93 narrative and it's used a lot for
18 reference.
19 Q. Okay.
20 A. I thought I had produced it last time.
21 Q. No, sir.
22 I'm going to need that.
23 A. I can, I can have that.
24 Q. Can you have someone bring it over?
25 A. Yes, sir. On the first break I'll call and
451
1 have someone bring it.
2 Q. How about the '93 draft, Mr. Neely?
3 A. The '93 draft, I have a rough draft of the
4 '93 document. It's not in final form by any means.
5 Q. I understand.
6 A. It has no photos with it (document
7 produced).
8 MS. PONZOLI: Okay.
9 THE WITNESS: It has not been reviewed nor
10 is it complete.
11 BY MR. EARL:
12 Q. I understand.
13 MS. PONZOLI: It would appear that we have
14 a single copy of this, Mr. Earl.
15 Could the court reporter make copies for us
16 to use?
17 MS. MC NALLY: I'll do it.
18 BY MR. EARL:
19 Q. Item 20, Mr. Neely, asks you to produce any
20 and all documents relating to the refuge's annual
21 narrative reports for the years '92 and '93 including
22 all drafts and backup materials.
23 What have you produced in response to that?
24 A. I didn't bring anything in response to
25 that, Mr. Earl.
452
1 Q. Do documents exist?
2 A. There are some monthly activity reports
3 that are used for putting together the narrative
4 reports. They could be considered falling into that
5 class.
6 Q. Why didn't you bring those?
7 A. They're scattered all over our office right
8 now, sir. I could not round them up. I can't find
9 all of them simply because they're in the process of
10 writing the narrative. Different, different people
11 have different responsibilities for different
12 sections.
13 MS. PONZOLI: I suggest, Mr. Earl, that you
14 go through the narrative and see if there's a
15 need to retrieve whatever portions of the refuge
16 some of these documents might exist. You may
17 not need to once you have the draft.
18 BY MR. EARL:
19 Q. Any and all documents -- Number 19,
20 Mr. Neely, any and all documents, including but not
21 limited to maps, relating to the occurrence of fires
22 on the refuge.
23 A. I brought those last time, sir, all of
24 them. I have no new ones.
25 Q. Okay. Didn't you tell me last time there
453
1 were maps that you didn't bring; you'd have to go
2 back and check at your headquarters?
3 A. I don't recall, Mr. Earl.
4 Q. You didn't bring those with you this time,
5 did you?
6 A. I brought the maps that were listed on this
7 document here.
8 MS. PONZOLI: The letter of February 10th,
9 1994.
10 Can you refer us in the transcript,
11 Mr. Earl, to where he indicated there might be
12 more maps? Because his recollection was he had
13 produced all maps.
14 MR. EARL: No, I'm not going to refer you
15 to the transcript.
16 MS. PONZOLI: Well, I suggest you don't do
17 it in front of the judge then if you're not
18 willing to cooperate and do it here because
19 we're willing to cooperate and produce anything
20 that we didn't produce. It's our recollection
21 we produced it all.
22 MR. EARL: I would ask that you look at the
23 transcript and identify that. If you don't want
24 to, that's fine.
25 MS. PONZOLI: I'm making the choice yours.
454
1 BY MR. EARL:
2 Q. Okay. Number 18, Mr. Neely, which is any
3 documents, including but not limited to permits,
4 issued to the South Florida Water Management
5 District, relating to the application of pesticides
6 or herbicides in or on the refuge for the control of
7 vegetation, including pest plants and exotic species?
8 A. To the best of my knowledge there have been
9 no new documents produced since last deposition.
10 Q. None generated?
11 A. None, none generated.
12 Q. So there's been no correspondence with the
13 District about pesticide application?
14 A. To the best of my knowledge, sir.
15 Q. Okay. 17, have you co-authored, prepared,
16 published or contributed to any papers which relate
17 to your expert testimony?
18 A. No, sir.
19 Q. Okay. 16, any and all documents, including
20 correspondence, relating to the development of the
21 Everglades SWIM Plan or review thereof.
22 A. No, sir.
23 Q. Okay. 15, any and all documents relating
24 to the impacts of overdrainage, fires and soil
25 oxidation in WCA-1.
455
1 Any new ones?
2 A. No, sir.
3 Q. 14, documents relating to flooding to
4 improve habitat.
5 Any generated?
6 A. None that I know of, sir.
7 Q. Okay. Item 13, any and all documents
8 relating to the nature, causes and extent of
9 melaleuca infestation.
10 In the last -- since March 29th and 30th
11 have any documents relating to melaleuca infestations
12 been generated?
13 A. Yes, sir, there have been. There has been
14 some documents that would relate to our treatment of
15 melaleuca that I will need to furnish.
16 MS. PONZOLI: Well, I will -- that's fine
17 for you to furnish them, Mr. Neely. You are not
18 the records custodian for the entire refuge.
19 THE WITNESS: That's --
20 MS. PONZOLI: So our cooperation in
21 providing Mr. Earl with documents from
22 throughout the refuge is exactly that,
23 cooperation.
24 I do not accept the position that Mr. Neely
25 must sit here as records custodian for any
456
1 document that exists anywhere on the premises of
2 the refuge which I believe would fall into
3 several of these categories.
4 MR. EARL: Is he going to provide those?
5 MS. PONZOLI: He said he would, so --
6 MR. EARL: Okay.
7 MS. PONZOLI: -- I'm not going to interfere
8 with that.
9 BY MR. EARL:
10 Q. Who is the records custodian for documents
11 relating to melaleuca infestation?
12 A. Dr. Maffei.
13 Q. Okay. Number 12, any and all documents
14 relating to soil sampling/efforts, water quality
15 testing, soil deposition testing, atmospheric
16 deposition testing, and all related data and reports.
17 Again, Mr. Neely, have any documents been
18 generated in the last year which would be responsive
19 to that request?
20 A. Some have been generated, but they are not
21 in my possession.
22 Q. They are in Loxahatchee?
23 A. Sir?
24 Q. They are at the refuge?
25 A. Yes, sir.
457
1 Q. And who would have custody of those?
2 A. Dr. Maffei.
3 Q. You don't have any of those?
4 A. Not with me, sir.
5 Q. In your office?
6 A. In the office building? Yes, sir.
7 Q. Your office, sir.
8 A. No. In my office, no. In my room office,
9 no.
10 Q. Are you going to rely on any documents that
11 have been generated with regard to soil sampling,
12 water quality testing, soil deposition testing,
13 atmospheric deposition testing and related data and
14 reports in the last year in your opinion at the
15 hearing?
16 A. Probably a summary of those documents, but
17 not the documents themselves.
18 Q. What summary of those documents?
19 A. A summary that I'll ask Dr. Maffei to
20 generate before the hearing.
21 Q. But he hasn't yet?
22 A. No, sir.
23 Q. Have you reviewed any such documents
24 yourself?
25 A. The only document that I've reviewed on
458
1 soil testing is a document that came from your side.
2 Q. What document is that, sir?
3 A. This document right here (document
4 produced).
5 MS. PONZOLI: I think it's Millard 18.
6 MR. EARL: Let's mark it as Number 11.
7 (The document was marked
8 Exb. No. 11.)
9 BY MR. EARL:
10 Q. You just handed a document which the
11 reporter's now marked as Number 11.
12 What is that, sir, that you've reviewed?
13 A. This is an analysis of the phosphorus of
14 the, of phosphorus data that was collected, total
15 phosphorus data that was collected in the refuge by a
16 Mr. John Davis.
17 Q. And for what purpose did you review that
18 document?
19 A. To see what his data indicated.
20 Q. And what did that disclose to you?
21 A. That there was hardly any difference
22 between the data that he has there and the data
23 that's in work order 32.
24 Q. Anything else?
25 A. No, sir, nothing of surprise.
459
1 Q. And that's the only soils or water quality
2 data you've reviewed in the last year?
3 A. Yes, sir.
4 Q. Number 11 calls for documents relating to
5 the negotiations of the settlement agreement in the
6 U.S. v Soil Florida federal case.
7 Anything generated in the last year
8 regarding that?
9 A. Quite a few documents were generated during
10 the negotiations.
11 Q. You're talking about mediation.
12 A. Yes, sir.
13 MS. PONZOLI: I think his -- I understood
14 this to refer to the first settlement agreement.
15 Isn't that accurate, Mr. Earl?
16 THE WITNESS: That's what it appears --
17 MR. EARL: Yes, that's what it says.
18 MS. PONZOLI: Okay. All those documents
19 were produced previously in the federal FOIA
20 case or they are on the federal FOIA privilege
21 list.
22 MR. EARL: Well, let me ask the witness.
23 BY MR. EARL:
24 Q. Have you seen any documents or generated
25 any documents responsive to that category in the last
460
1 year?
2 A. No, sir.
3 Q. Okay. Number 10, any and all documents
4 relied upon in preparing, formulating, developing,
5 authoring, co-authoring, reviewing and/or organizing
6 anticipated expert testimony relating to habitat
7 trends.
8 Anything in the last year you've reviewed
9 on that?
10 A. No, sir.
11 Q. Number 9, any and all documents relied upon
12 in preparing, formulating, developing, authoring,
13 co-authoring, reviewing and/or organizing anticipated
14 expert testimony relating to water quantity impacts.
15 Anything responsive in the last year that
16 you've seen on that?
17 A. To the best of my knowledge, I can't think
18 of anything new that I've looked at since then.
19 Q. Okay. And who would have -- would it again
20 be Dr. Maffei? Would he be the custodian in both of
21 these?
22 A. Dr. Maffei.
23 THE WITNESS: For the court reporter,
24 that's M-a-f-f-e-i.
461
1 BY MR. EARL:
2 Q. Okay. Number 8, water quality impacts, any
3 and all documents, anything generated that you've
4 reviewed in the last year?
5 A. There have been some stuff generated that I
6 reviewed, but I don't have possession. Dr. Maffei
7 would have possession of all that.
8 Q. What have you reviewed in the last year?
9 A. Sir, various papers that were produced
10 dealing with water quality. I can't name anything
11 specific because I've spent most of six months in
12 Washington. There were documents produced, and I see
13 them as, as I would go through the office. I can't
14 name anything specific that I've reviewed.
15 Q. And, again, Dr. Maffei has custody of
16 those?
17 A. Um-hum. Yes, sir.
18 Q. Do you anticipate using any such documents
19 in your expert testimony?
20 A. I don't know, sir.
21 Q. As we sit here right now have you used any
22 such documents generated in the last year to form or
23 to support your opinions or conclusions?
24 A. No, sir. My opinion's the same as it was
25 as when we were here last year.
462
1 Q. Okay. But you haven't used any documents
2 generated in the last year.
3 A. No, sir, not to change, change my opinion.
4 Q. That's not the question.
5 Are you relying on any documents generated
6 in the last year as you sit here today?
7 MS. PONZOLI: The question has changed,
8 Mr. Earl. With respect, your question has
9 altered each time you asked it or at least it
10 seemed to me.
11 THE WITNESS: What's your question now,
12 sir?
13 MR. EARL: Would you read back the last
14 question, please?
15 (Thereupon, a portion of the record
16 was read by the reporter.)
17 THE WITNESS: At this moment, no.
18 BY MR. EARL:
19 Q. Number 6, have any documents been generated
20 in the last year relating to anticipated expert
21 testimony relating to management of the northern
22 Everglades habitat?
23 A. Would you state that again, sir?
24 Q. Look at question number 6, sir.
25 A. Okay. Any documents, any and all documents
463
1 relied upon in preparing, formulating...
2 No, sir.
3 Q. Okay. Have you seen any, have any such
4 documents been generated in the last year, to your
5 knowledge?
6 A. Not that I know of, sir.
7 Q. Who would know about those?
8 A. Dr. Maffei.
9 Q. How about number 4, any documents generated
10 in the last year relating to the impacts of water on
11 fauna and flora in the refuge?
12 A. I don't know of any new documents that have
13 been done. I do not know, do not recall any and I've
14 not reviewed or relied upon any.
15 Q. Okay. That would be Dr. Maffei again?
16 A. Yes, sir.
17 Q. Number 3, any and all documents relating to
18 the status of the refuge.
19 A. Probably the '93 narrative would have some
20 stuff in it, although I've not reviewed it.
21 Q. The '92 would also, would it not?
22 A. The '92 probably would also.
23 Q. Okay.
24 A. I've not -- I've signed it. It's been
25 signed and submitted.
464
1 Q. Any other documents relating to the status
2 of the refuge?
3 A. None in my possession, sir.
4 Q. That you know about or have reviewed.
5 A. No, sir, just, all of that stuff goes to
6 Dr. Maffei's office, and he recently compiled all of
7 his documents for his deposition.
8 Q. But you personally don't know of any other
9 documents.
10 A. No, sir, I don't know of any, any other
11 documents at this moment. I just -- I can't recall
12 any.
13 Q. Number 2, any and all documents relating to
14 the subject matter of this action, this SWIM Plan.
15 Any documents you're aware of in the last
16 year?
17 A. Not that I can recall, sir.
18 Q. Who would know about that if there were
19 such documents?
20 A. Documents that I relied upon?
21 Q. Documents that were generated in the last
22 year that would fall within this category.
23 A. Dr. Maffei would.
24 Q. Okay. Have you prepared a CV or resume'
25 for any purpose since March 30th, 1993?
465
1 A. I don't think that I have, sir.
2 MR. EARL: Now, could we take a short break
3 to save time here because I'd like to try and
4 finish today. Could you call the refuge and
5 have those materials delivered that you said --
6 tell you what. Let's go back over the letter,
7 too, so we can...
8 MS. PONZOLI: Let's make sure.
9 BY MR. EARL:
10 Q. Now, I have a letter from one of the
11 federal paralegals Alberto Valdes with a map.
12 Can you tell me what that is that was sent
13 on February 18th?
14 A. This is in response to your February 10th
15 letter to Ms. Ponzoli asking for a 17 by 11 map of
16 the refuge dated 1976. And I assume that it is this,
17 this particular map, and what you have here is an
18 updated version or the most current version of the
19 map that we use that I think you were referring to.
20 This has been reduced apparently from the 11 by 17.
21 MR. EARL: Let's mark this as Number 12.
22 (The document was marked
23 Exb. No. 12.)
24 BY MR. EARL:
25 Q. Tell me what Number 12 is now, sir.
466
1 A. Number 12 is a map of Loxahatchee National
2 Wildlife Refuge with notations of physical structures
3 and boundaries.
4 Q. And this is utilized by you and your staff?
5 A. Yes.
6 Q. And this is a reduced version of that.
7 A. This is a reduced version of the 11 by 17.
8 Q. For what purpose do you utilize that
9 document?
10 A. We utilize this for orientation of new
11 people, for joint exercises with other folks: Water
12 Management District, other federal agencies and law
13 enforcement activities so that we can refer to
14 physical features that they can, we can all be
15 working from the same map.
16 Q. All right.
17 A. That was item number 2 on your letter of
18 February 10th --
19 Q. Okay.
20 A. -- from Mr. Burgess.
21 Q. Let's go through that letter if we can,
22 please.
23 A. Okay.
24 Q. Relates to items at the last deposition.
25 A. Let me, let me just preface by saying that
467
1 I checked every one of those things, and they were
2 all furnished last time and all copied by Mr., by --
3 MS. PONZOLI: Mr. Richards?
4 THE WITNESS: -- Joe Richards. They still
5 have his notes on them.
6 BY MR. EARL:
7 Q. Okay. These were all copied and produced?
8 A. Yes.
9 Q. Okay. I'll take your word for it.
10 A. For example, the maps at the top still have
11 the yellow stickies on them (indicating) just like
12 all the other documents that are listed on here.
13 MS. PONZOLI: I believe Mr. Neely has
14 produced them again, though, Mr. Earl.
15 THE WITNESS: Yes, I did bring those.
16 BY MR. EARL:
17 Q. Item 4, do you have that with you, sir?
18 A. Yes, sir (document produced).
19 Q. Ms. McNally says our records show we have a
20 memo from Mr. Richards saying that we do not have
21 these documents, so...
22 MS. PONZOLI: Well, there's no point in a
23 swearing contest, Mr. Earl. Either you did or
24 you didn't. You have them now. We say you did,
25 you say you didn't.
468
1 MR. EARL: Okay.
2 THE WITNESS: This is also Mr. Richards'
3 notations (indicating) on all the other
4 documents.
5 Plus the other things that you asked for on
6 the letter of the 10th I have in a box here that
7 were all brought last time.
8 BY MR. EARL:
9 Q. Mr. Neely, on what's marked as January 1952
10 Tallahassee Meridian posted 2/70 Loxahatchee National
11 Wildlife Refuge that you just produced --
12 A. Yes.
13 Q. -- can you tell me what the figures are?
14 Excuse me. You got an E1, an M2, a 3, 11.
15 A. An E is an easement.
16 Q. Okay.
17 A. I'm not, I don't remember what an M is.
18 But the other documentations like 11A would
19 be a tract number.
20 Q. Parcels --
21 A. Yes, sir.
22 Q. -- of land?
23 A. Yes, sir.
24 Q. What is the B -- I can't -- it looks like
25 an 8?
469
1 A. 8L-1 which I -- I'm not sure what that is.
2 I'd have to ask the realty people.
3 Q. What does this look like, tract parcels
4 that were acquired subsequent to 1952 if it were '70?
5 A. I would think that's what it is, sir. I'm
6 not -- that shows some of the parcels. What it looks
7 like to me is since there's some new, some heavy
8 lines drawn around three of the tracts, it looks like
9 the addition of three tracts to me.
10 Q. Okay.
11 A. Number 3, 11, 11A.
12 Q. Okay.
13 MS. PONZOLI: Are you going to attach this
14 as an exhibit, Mr. Earl, is that your intention?
15 MR. EARL: No, it's not.
16 MS. PONZOLI: Well, I guess I need to ask
17 Mr. Neely.
18 Are you offering this document to Mr. Earl
19 as his copy --
20 THE WITNESS: No.
21 MS. PONZOLI: -- or do we have to have a
22 copy made?
23 THE WITNESS: This is the only copy I have.
24 It goes back to '52.
25 MR. EARL: So we'd have to copy this?
470
1 MS. PONZOLI: We would have to copy it.
2 Why don't we -- you don't want it as an exhibit
3 to this deposition?
4 MR. EARL: No.
5 MS. PONZOLI: All right. Then we will have
6 a copy made for you and forward it to you.
7 MR. EARL: Is it easier to have it marked
8 and the court reporter can copy it, is that what
9 you want to do?
10 MS. PONZOLI: If you'll return the
11 original, this particular original to us and
12 substitute in the record a copy, that's fine
13 with us.
14 MR. EARL: All right. Then let's mark this
15 as Number 13.
16 (The document was marked
17 Exb. No. 13.)
18 MR. EARL: And the request to the reporter
19 is that she have it duplicated and have the
20 original returned to Mr. Neely. Thank you.
21 MS. PONZOLI: But all parties I assume
22 would like a full size copy attached to their
23 depo.
24 THE COURT REPORTER: Yes, ma'am.
25 (Discussion held off the record.)
471
1 BY MR. EARL:
2 Q. Okay. I do recall we looked at the refuge
3 management plans, two large notebooks.
4 Has that been updated since --
5 A. No, sir.
6 Q. -- in the last year?
7 A. I have those with me if you'd like to see
8 them again.
9 Q. We don't need those. Thank you.
10 Item 6, a boundary adjustment package
11 including cover letter dated August 20th.
12 I remember we looked at some of those
13 documents.
14 Has there been any correspondence in the
15 last year regarding the boundary changes or
16 documents?
17 A. Probably the thing that would be of
18 interest to you is the final document that's been
19 signed on that, and I have the original copy -- I
20 have a copy here.
21 Q. By the District?
22 A. Signed by the District and by the Fish and
23 Wildlife Service.
24 Q. Okay.
25 A. I'm looking for the signature page.
472
1 (Discussion held off the record.)
2 BY MR. EARL:
3 Q. Let's go back on the record.
4 A. What we have, Mr. Earl, is a series of
5 these same documents from unsigned to signed by the
6 Fish and Wildlife Service to signed and executed by
7 the District.
8 Q. Again, some of them have your transmittal
9 letters to your Atlanta office?
10 A. Or vice versa.
11 Q. Okay. Could I see that package, please?
12 MS. PONZOLI: Some of these are original
13 copies, so we would have the same --
14 THE WITNESS: They all are because I'm --
15 MS. PONZOLI: -- problem.
16 If you wish to have copies, we would have
17 to have them returned.
18 MR. EARL: I understand.
19 THE WITNESS: Okay. This is the one that
20 was sent to me from the Water Management
21 District for transmission to Atlanta (document
22 produced).
23 (Discussion held off the record.)
24 MR. EARL: Are you ready, Mr. Neely, or are
25 you in the middle of something?
473
1 MS. PONZOLI: You've produced the document
2 he asked for, haven't you?
3 THE WITNESS: Yes. I gave him the first
4 one.
5 The second one is, is one that was
6 transmitted -- or hand-delivered from me to the
7 South Florida Water Management District with a
8 Fish and Wildlife Service signature (document
9 produced).
10 BY MR. EARL:
11 Q. Okay. Is that a --
12 A. And then the third document is a document
13 that was returned to me from the Water Management
14 District executed with both signatures (document
15 produced).
16 Q. And this is a copy of an original?
17 A. Yes, sir.
18 Q. This is the final document?
19 A. Yes.
20 Q. We can mark this?
21 A. That's the final document, yes.
22 Q. You don't need this one back.
23 A. Let me look at the last page.
24 I don't know, Mr. Earl, if I have another
25 copy of this or not.
474
1 MS. PONZOLI: Then we must assume it's the
2 original, it's your copy, and we'll have to have
3 a copy of that made and returned.
4 THE WITNESS: It's the copy for the refuge.
5 We will not maintain the original at the refuge.
6 MS. PONZOLI: Do you want to do that for
7 the others also?
8 MS. MC NALLY: Sure.
9 MR. EARL: While she's doing that,
10 Mr. Neely, could we take a break and get those
11 other documents?
12 MS. PONZOLI: All right. Let's make sure
13 what it is we're seeking.
14 We're seeking the '92, '93 annual -- well,
15 the '93 we produced.
16 You're seeking the '92 annual narrative
17 report; is that right?
18 THE WITNESS: That's what I have marked.
19 MR. EARL: The one that's completed and
20 signed, '92.
21 THE WITNESS: That's '92.
22 MS. PONZOLI: All right. And then what
23 else, Mr. Earl?
24 THE WITNESS: He asked for documents
25 related to melaleuca, but all of that stuff's
475
1 going to be in Dr. Maffei's boxes, wherever they
2 are.
3 MR. EARL: You said you could provide that.
4 MS. PONZOLI: Well, if it can be retrieved,
5 it doesn't have to be pulled out of umpteen
6 boxes for Dr. Maffei, we'll certainly do so. If
7 it's buried among the Maffei documents, then I
8 think we're going to have to ask you to question
9 Mr. Maffei about those when his depo is taken.
10 BY MR. EARL:
11 Q. What particular melaleuca related documents
12 have you reviewed in the last year?
13 A. None that I can recall. I know some have
14 been produced, though. One in particular that I do
15 remember reviewing, Mr. Earl, is a funding request
16 for this, for FY '94.
17 Q. For the melaleuca control program?
18 A. Yes.
19 MS. PONZOLI: Specifically what else were
20 you asking him to retrieve, Mr. Earl?
21 BY MR. EARL:
22 Q. Anything else you recall, Mr. Neely, that
23 you reviewed relating --
24 A. The only two things I have are Number 13
25 and Number 21.
476
1 Q. Okay. I'd like those, too. I'd certainly
2 like the annual report.
3 MS. PONZOLI: Okay. How many copies are
4 you having made?
5 MR. EARL: Of what?
6 THE WITNESS: Of the annual report?
7 MS. PONZOLI: Of the annual report.
8 THE WITNESS: It will take them a couple
9 hours.
10 MR. EARL: Off the record. Take a break.
11 (Discussion held off the record.)
12 (Thereupon, a recess was taken from
13 10:05 a.m., until 10:12 a.m.)
14 BY MR. EARL:
15 Q. Back on the record, please.
16 Mr. Neely, will we have that document,
17 those documents?
18 A. Yes, sir, they are rounding them up now.
19 Q. Thank you.
20 Item number 7 on this letter, March '92
21 facsimile transmission from Til Creel.
22 Do you know what that refers to?
23 A. Well, it's a little vague, but I happen to
24 know what it is simply because it's in the package
25 Mr. Richards copied or at least I can produce one
477
1 that says March of '92 (document produced).
2 MR. EARL: Do you have a copy there,
3 Ms. Ponzoli?
4 MS. PONZOLI: You asked for the fax.
5 MR. EARL: Okay. We won't mark that one.
6 BY MR. EARL:
7 Q. Again, 1991 correspondence, item number 9,
8 with the Game and Fish Commission.
9 Do you know what that refers to?
10 A. No, sir, but I got one.
11 What was the date again? October.
12 Q. 1991 correspondence with Game and Fish
13 Commission.
14 A. There's some correspondence.
15 Q. Dated 1991?
16 A. Here's some more from Game and Fish. And
17 that's the only thing that I have that I can suppose
18 that's what you're asking for (document produced).
19 MS. PONZOLI: This is a duplicate?
20 THE WITNESS: Hum? I don't know. They are
21 just in the package that Mr. Richards had marked
22 a copy of the entire package, so...
23 MS. PONZOLI: I believe the second one is a
24 duplicate, Mr. Earl. You can satisfy yourself.
25 And I'd prefer you take the duplicate and we
478
1 don't have to worry about...
2 MR. EARL: I'll be happy to.
3 BY MR. EARL:
4 Q. Is there some other correspondence there?
5 A. This letter is either in response to or was
6 generated by that, or generated the letter from Game
7 and Fish (document produced).
8 MS. PONZOLI: This one appears to --
9 THE WITNESS: I don't remember which one is
10 which.
11 MS. PONZOLI: I'm sorry.
12 This one would appear to be his only copy,
13 so we'd have to have that one back if you want
14 to use it, Mr. Earl.
15 MR. EARL: This is your original back.
16 MS. PONZOLI: Okay.
17 MR. EARL: Can we mark this, please, as
18 Number 14.
19 (The document was marked
20 Exb. No. 14.)
21 BY MR. EARL:
22 Q. Do you know what item 10 refers to, draft
23 letter to Senator Bob Graham?
24 A. No, sir.
25 Q. You haven't seen anything like that?
479
1 A. But I have a copy in Mr. Richards'
2 packages.
3 THE WITNESS: This is the draft he's asking
4 for right here (document produced).
5 MS. PONZOLI: Okay. We'll give him that.
6 BY MR. EARL:
7 Q. And do you have other drafts?
8 MS. PONZOLI: Is this the same letter?
9 THE WITNESS: No, sir, I don't have any
10 other drafts.
11 BY MR. EARL:
12 Q. Do we have the letter that actually went
13 out?
14 A. I believe -- can I see that just a minute?
15 Yes, sir, these are duplicate drafts.
16 Q. Okay. And do you have another piece of
17 correspondence that actually went out?
18 A. Yes, I do.
19 There's the letter that transmitted the
20 draft (document produced).
21 There's the signed letter that went out as
22 a result of the draft (document produced).
23 MR. EARL: All right. We'll need a copy of
24 those.
25 MS. MC NALLY: Okay.
480
1 Here are your originals, the one on the
2 boundaries and the one you just gave me.
3 MS. PONZOLI: Okay.
4 THE WITNESS: Okay.
5 BY MR. EARL:
6 Q. Item 11, Mr. Neely, is a May 1st, '92, an
7 April 7th, '92 letter from SFWMD.
8 A. All right.
9 MS. PONZOLI: Which one are we responding
10 to?
11 THE WITNESS: (Indicating).
12 MS. PONZOLI: This isn't that, is it?
13 THE WITNESS: I have no idea. You know, I
14 get a lot of letters from the Water Management
15 District. That's the letter that's in
16 Mr. Richards' package dated April the 7th, 1992.
17 MS. PONZOLI: Okay.
18 THE WITNESS: There's a copy there
19 (document produced).
20 MS. PONZOLI: Oh, all right. Let's give
21 him the copy.
22 And does this go with it?
23 MR. EARL: Thank you.
24 BY MR. EARL:
25 Q. And is there a May 1st memo that's related?
481
1 A. I've been looking for a May 1st memo. I
2 have no idea what the subject is. I assume it would
3 have been in the same package, but I'm still looking.
4 MR. EARL: Let's go off the record a second
5 while Mr. Neely is looking.
6 (Discussion held off the record.)
7 THE WITNESS: I don't have anything dated
8 that way, Mr. Earl, and I don't have any idea --
9 BY MR. EARL:
10 Q. Well, let me relieve you of that burden
11 since it probably relates to the boundary.
12 A. Yeah.
13 Q. Okay.
14 A. That's where I looked, but I don't...
15 MS. PONZOLI: Do you want to highlight it?
16 THE WITNESS: I'll do it on here.
17 MR. EARL: Mark this, please, as Number 15.
18 (The document was marked
19 Exb. No. 15.)
20 (Discussion held off the record.)
21 MR. EARL: While we're waiting, let's do
22 that.
23 Let's mark as 16 the '93 annual report
24 draft.
482
1 (The document was marked
2 Exb. No. 16.)
3 BY MR. EARL:
4 Q. Let me hand you what we've marked as
5 Exhibit Number 15, Mr. Neely, purports to come from
6 page 119 (sic) of the SWIM Plan supporting
7 information document.
8 A. Yes, sir.
9 Q. I direct your attention to the crosshatched
10 area, horizontally hatched area which the key
11 indicates is overdrained areas which have experienced
12 invasion by terrestrial species.
13 Do you see those areas crosshatched on the
14 Loxahatchee?
15 A. No, sir.
16 MR. SMITH: They're really not hatched.
17 Horizontal --
18 THE WITNESS: My answer was no, sir.
19 BY MR. EARL:
20 Q. Do you see the areas along the perimeter of
21 L-40 and L-7 which have horizontal lines on them?
22 MS. PONZOLI: Is that your interpretation?
23 THE WITNESS: I can't tell whether they are
24 from horizontal lines or not, Mr. Earl.
25 It looks like to me that it could be the
483
1 other symbol that's at the bottom of the page.
2 MR. EARL: Let me see your copy.
3 MS. PONZOLI: It's a pretty poor
4 representation.
5 BY MR. EARL:
6 Q. And do you see the area, the dotted area in
7 the middle which purports to be areas of the marsh
8 having a more typical hydrologic regime supporting
9 historic Everglades vegetation?
10 A. Yes, sir.
11 Q. And as the refuge manager, does that
12 accurately depict the area which you believe have a
13 more typical hydrologic regime supporting historic
14 Everglades vegetation in the Loxahatchee?
15 A. More typical? To some extent. I wouldn't
16 say wholly.
17 Q. Okay. Where would you disagree with that?
18 A. I would disagree with some of the areas of
19 extended hydroperiod.
20 Q. No, sir. I'm asking you about the dotted
21 area in the middle. I'm not asking you about the
22 area in the south or the perimeter on the east or
23 west.
24 A. Well, not being able to really judge that
25 scale, it looks like it's less than a mile. And I
484
1 think that it's, it's very irregular. There is no
2 straight line like that on the ground. This is just
3 a depiction of a map with straight lines, and it's
4 not that way on the ground.
5 Q. Does this approximate in any way the
6 overdrained areas, the areas of extended hydroperiod
7 or the areas supporting historic Everglades
8 vegetation in the Loxahatchee?
9 A. I think it generalizes those conditions.
10 Q. Do you have a more accurate depiction of
11 those conditions in the Loxahatchee in terms of a map
12 or graphic?
13 A. No, sir.
14 Q. Are you aware of any that exists?
15 A. Not at the refuge. I don't know if any
16 exist at the Water Management District or not. I'm
17 not aware of any.
18 Q. You can see the area in the south, you can
19 see those diagonal lines, can you not --
20 A. Yes, sir.
21 Q. -- which appear to be areas of extended
22 hydroperiod?
23 A. Yes, sir.
24 Q. And does that approximate the areas of
25 extended hydroperiod in the Loxahatchee as you
485
1 understand them?
2 A. Well, again, this is a generalized
3 depiction of those areas, and it, it generally
4 depicts that area, but it's not anywhere close to
5 accurate.
6 Q. Do you have a more accurate depiction of
7 those areas?
8 A. No, sir.
9 Q. Have you ever seen one?
10 A. No, sir.
11 Q. Would you be able to prepare one?
12 A. No, sir.
13 Q. Did Loxahatchee staff provide input to the
14 Water Management District when they prepared this
15 document?
16 A. Not to my knowledge.
17 Q. Okay.
18 Now, how would you describe the areas along
19 the perimeter on this exhibit along the, going north
20 from the extended hydroperiod area along L-40 to the
21 top of Loxahatchee and going up the L-7 on the
22 western side along the perimeter? How would you
23 describe those general areas?
24 A. I would describe that as a general
25 characterization of areas that have been impacted
486
1 either by nutrients or to some extent by water, water
2 levels or lack of water levels.
3 Q. What do you mean by lack of water levels or
4 water levels?
5 A. When, when the water's drawn down in the
6 canals in either the L-7 or the L-40, those areas are
7 sometimes overdrained along the edge, but they're
8 also impacted by other, other items.
9 Q. Okay. Along the L-7 on the western
10 boundary there, what would you estimate the width of
11 that area to be from the canal?
12 A. As depicted on this map?
13 Q. No, sir. On the ground that's been
14 affected.
15 A. I couldn't estimate it without looking at a
16 current photo or map.
17 Q. Map of what, current vegetation?
18 A. Yes, sir.
19 Q. You have no idea of how, the distance into
20 the interior of the marsh from the canal that the
21 overdrainage has impacted that area?
22 A. No, sir.
23 MS. PONZOLI: It's been asked and answered.
24 BY MR. EARL:
25 Q. Okay. Who would?
487
1 A. I would assume someone that drew this map
2 might have some knowledge.
3 Q. But you don't know who did that, do you?
4 A. No, sir.
5 Q. Who at Loxahatchee --
6 A. Well, I do. It says it's from, the South
7 Florida Water Management Environmental Sciences
8 Division prepared that.
9 Q. Okay. Does anyone at Loxahatchee, would
10 anyone in Loxahatchee know that?
11 A. Know who prepared this map?
12 Q. No, sir.
13 A. Know?
14 Q. Know the extent of the overdrained area
15 going from the canal to the interior of the marsh.
16 A. If anyone did, Dr. Maffei probably would,
17 but it's a very irregular defined area.
18 Q. And what would you look for in an aerial --
19 or, rather, a vegetative mapping to determine the
20 extent of that area?
21 A. Caused by overdrainage?
22 Q. Yes, sir.
23 A. I do not know.
24 Q. Didn't you earlier state you would have to
25 look at a current map?
488
1 A. For, for impact, sir.
2 Q. Yes, sir.
3 A. As depicted -- as far as overdrainage, I
4 would assume you would have to look at the different
5 types of vegetation that was there.
6 One might be willow.
7 Q. Okay. What else would be?
8 A. Phragmites.
9 Q. Anything else?
10 A. You could have cattail along that area.
11 You could have smartweed.
12 Q. What else have you seen in that area?
13 A. I've seen smartweed, phragmites. I've seen
14 cattail growing in that area. I've seen marsh malla.
15 I've seen water hyacinth. There are innumerable
16 plants in that area.
17 Q. I'm asking what you have seen that would be
18 related to overdrainage of that area.
19 A. I can't, I can't classify it as
20 overdrainage, Mr. Earl. I can classify it as having
21 water on it or not having water on it.
22 Q. So you would disagree with their
23 categorization of this area as overdrained?
24 A. I would disagree with their -- if they are
25 interpreting this to mean that everything on that
489
1 zone is caused by overdrainage, yes, sir, I disagree
2 with that.
3 Q. Would you disagree if they were
4 interpreting that to mean that that zone is
5 overdrained?
6 A. To some extent because the zone is not a
7 straight line as they have it there. The zone that's
8 influenced is not a direct straight line.
9 Q. Well, apart from that -- as you said, this
10 is a generalization.
11 Would you agree that generally that area
12 has been subject to overdrainage?
13 A. The thin area along the L-40 and the L-7?
14 Q. On the map we've been talking about, yes,
15 sir.
16 A. It, it generally depicts some of it.
17 Q. Some of what?
18 A. The overdrained area.
19 Q. Are there other overdrained areas that
20 aren't depicted?
21 A. Yes, sir.
22 Q. Where are they?
23 A. On the north end of the refuge.
24 Q. Okay, sir.
25 And how far down would that be on this map?
490
1 A. I couldn't tell you, sir. I could guess,
2 but --
3 MS. PONZOLI: He's not supposed to sit here
4 and guess.
5 BY MR. EARL:
6 Q. Okay. This is the area you told me about
7 in your deposition you thought would be about 2,000
8 acres on the northern end?
9 MS. PONZOLI: If you don't recall --
10 THE WITNESS: I do not recall.
11 MS. PONZOLI: -- what you said...
12 BY MR. EARL:
13 Q. Well, what is your best estimate of what
14 the size of that area would be?
15 A. On the north end?
16 Q. Yes, sir.
17 A. That's been impacted by hydroperiod?
18 Q. That's overdrained.
19 MS. PONZOLI: That's your definition?
20 BY MR. EARL:
21 Q. What you just described to me.
22 A. By hydro- --
23 Q. You told me there was another area,
24 Mr. Neely --
25 A. That's been impacted --
491
1 Q. -- on the north end that wasn't on here.
2 Yes.
3 And I'm asking what the --
4 A. That's been impacted by hydroperiod?
5 Q. That's overdrained.
6 MS. PONZOLI: I think this is a very
7 confusing question at this point.
8 THE WITNESS: I can't answer.
9 MS. PONZOLI: Can you reform it for him,
10 Mr. Earl?
11 BY MR. EARL:
12 Q. Well, let's answer it your way. You said
13 it has been impacted by hydroperiod?
14 A. Yes, sir.
15 Q. Okay. On the northern end of Loxahatchee
16 that's not depicted on this map, correct?
17 A. Yes, sir.
18 Q. Okay. What's your best estimate of the
19 size of that area?
20 A. 2 to 3,000 acres.
21 Q. And is that the northernmost tip you're
22 describing now of the Loxahatchee?
23 A. Well, it's on the north end, yes, sir.
24 Q. Okay.
25 A. It's very irregular, though. It's not a
492
1 neat line drawn across there.
2 Q. Okay. But it begins at the boundary and
3 comes south into the Loxahatchee, correct?
4 A. It begins at the edge of the L-40 or the
5 L-7 canal, not the boundary.
6 Q. Okay.
7 A. Meaning refuge boundary?
8 Q. Yes.
9 A. No, sir, it does not extend from the refuge
10 boundary.
11 Q. It starts at the levee.
12 A. At the canal, at the inside edge of the
13 L-40 or L-7 canal.
14 Q. Okay. And that's a contiguous area up
15 there?
16 A. I can't testify that it's contiguous. I'd
17 have to look at a map and see.
18 Q. Okay. Got any maps with you today that
19 would show that?
20 A. No, sir.
21 Q. Okay.
22 Now, what's happened up in that area? Why
23 is that impacted by hydroperiod? What's happened?
24 A. Because of the, the elevations of the land.
25 The elevation's higher at that end than it is at the
493
1 south end of the refuge.
2 Q. Are there any other overdrained areas or
3 areas that have been impacted by shortened
4 hydroperiod --
5 MS. PONZOLI: I'm going to object to the
6 form of the question --
7 BY MR. EARL:
8 Q. -- that aren't on this map?
9 MS. PONZOLI: -- since he made a
10 distinction.
11 THE WITNESS: There's, there's probably
12 some areas inside and outside this generalized
13 characterization they have here, but I couldn't
14 specifically say on a map of this scale.
15 BY MR. EARL:
16 Q. Okay. Are there any areas of extended
17 hydroperiod that aren't depicted on this map in the
18 Loxahatchee?
19 A. What do you mean by extended hydroperiod,
20 sir?
21 Q. A hydroperiod that's longer than the
22 natural hydroperiod in that area.
23 A. I'm not quite sure I understand what you're
24 asking --
25 Q. I'm asking --
494
1 A. -- without some definitions to extended
2 hydroperiod and natural hydroperiod as, as according
3 to you.
4 Q. Well, how do you understand them to have
5 used it here? You have no idea what they are talking
6 about when they say areas of extended hydroperiod?
7 A. No, sir.
8 Q. Okay. And you as refuge manager wouldn't
9 know what that means, correct?
10 A. I don't know what they mean. I know what I
11 mean.
12 Q. Okay. Tell me what you mean by extended
13 hydroperiod.
14 A. That there's water above the marsh, above
15 the normal marsh level for a period of time longer
16 than normal.
17 Q. Okay. Can we use that definition?
18 A. Yes, sir.
19 Q. Okay. Using that definition of extended
20 hydroperiod, are there areas of extended hydroperiod
21 in the Loxahatchee which are not depicted on this
22 map?
23 A. I think there's a lot of confusion,
24 Mr. Earl, as to whether you mean water depths or
25 whether you mean extended hydroperiod.
495
1 Q. I'm using the definition you just gave me.
2 A. Well, they depict three areas dealing with
3 hydroperiod.
4 Q. We're talking about extended hydroperiod
5 now, sir.
6 The question is are there areas, using your
7 definition of extended hydroperiod, that aren't
8 depicted on this map in Loxahatchee?
9 A. And this is the crosshatching at the
10 bottom.
11 Trying to guess what they are meaning by
12 extended hydroperiod --
13 Q. No, sir. We're using the definition you
14 just gave me.
15 A. This is a very generalization of extended
16 hydroperiod, but I do not agree with it altogether
17 because it is a generalized presentation.
18 Q. Are there any discrete areas you can
19 identify that aren't included in their area of
20 extended hydroperiod?
21 A. That are not included?
22 Q. In that hatched area.
23 A. No, sir, I don't have any that are not in
24 that area.
25 Q. To date have you seen any or had performed
496
1 any computations of the area of Loxahatchee impacted
2 by extended hydroperiod or overdrainage?
3 A. Have I?
4 Q. Yes, sir.
5 A. No, sir.
6 Q. Do you know of anyone else who has that
7 information?
8 A. I do not know if we, if anybody on my staff
9 has done that or not. I'm sure the Water Management
10 District has some.
11 Q. Okay.
12 Now, sir, are there cattails in Loxahatchee
13 in areas that are not shown in this figure 20 we're
14 talking about which is Exhibit 15? Are the cattails
15 in the refuge, are they generally located in these
16 areas depicted on figure 20 as areas of extended
17 hydroperiod or overdrained areas?
18 MS. PONZOLI: Object to form.
19 THE WITNESS: Cattails are found throughout
20 the refuge. This area depicts hydroperiod, not
21 cattails.
22 BY MR. EARL:
23 Q. I understand that, sir. That's not my
24 question.
25 A. Okay. Your question again is?
497
1 MS. PONZOLI: Well, I objected to the
2 question. I think it's confusing, Mr. Earl.
3 Do you think you can reframe it for him?
4 MR. EARL: Fine.
5 Read the last question back.
6 (Thereupon, a portion of the record
7 was read by the reporter.)
8 MS. PONZOLI: I continue my objection. I
9 actually think it's two questions.
10 THE WITNESS: There are cattails in all of
11 the areas depicted on this map, Mr. Earl.
12 BY MR. EARL:
13 Q. Even in the interior marsh.
14 A. Yes, sir, under certain circumstances.
15 Q. Okay. Are the majority of nutrient
16 cattails that you believe and given the opinion are
17 caused by nutrients in the Loxahatchee, are those
18 located in the areas indicated on figure 20 as being
19 overdrained or areas of extended hydroperiod?
20 MS. PONZOLI: Majority meaning 51 percent?
21 BY MR. EARL:
22 Q. Are the cattails which you attribute to
23 nutrients located in these two areas, overdrained or
24 areas of extended hydroperiod?
25 A. No, sir, because the cattails in the center
498
1 of the refuge in the area stippled areas of the marsh
2 having a more typical hydrologic regime has cattails
3 in it caused by nutrients also.
4 Q. Nutrients from the EAA?
5 A. No, sir.
6 Q. Okay. Let's talk about nutrients from the
7 EAA. I'm sorry I wasn't specific enough.
8 A. Okay.
9 Q. Let's answer that question with regard to
10 nutrients from the EAA.
11 MS. PONZOLI: Same continuing objection to
12 lack of clarity.
13 THE WITNESS: The areas generally depicted
14 as either overdrained or with areas of extended
15 hydroperiod have the densest stand of cattails
16 found on the refuge.
17 BY MR. EARL:
18 Q. Okay. That wasn't the question.
19 A. And would be, and would be the areas that I
20 consider to be the area impacted by nutrients that is
21 pumped in through the S-5A and the S-6 pump stations.
22 Q. Thank you.
23 Are there other areas you believe where
24 cattails are caused by EAA waters which are not in
25 the two zones you've just described here?
499
1 A. Well, again, I would say that this was a
2 general characterization. And, yes, there are
3 probably areas outside those straight lines on this
4 map.
5 Q. But, generally, those areas would encompass
6 the EAA generated cattails in your opinion, correct?
7 MS. PONZOLI: I'm going to object to the
8 form. I mean, this general, general, general is
9 pretty vague, vague, vague.
10 MR. EARL: Well, he used the term himself,
11 counsel. I'm just using his own term. Earlier
12 he described these as generalizations.
13 MS. PONZOLI: I can understand.
14 But you're asking questions that you want
15 to attribute specific meanings to a highly
16 generalized map which he for some period of time
17 now has told you is fairly general.
18 And so I just want my objection on the
19 record. I'm not telling him not to answer.
20 I think you better read the question back
21 again.
22 (Thereupon, a portion of the record
23 was read by the reporter.)
24 THE WITNESS: I don't know what you mean by
25 EAA generated.
500
1 You mean nutrient generated?
2 BY MR. EARL:
3 Q. Nutrient generated from the EAA waters,
4 that you claim are caused by waters from the EAA.
5 MS. PONZOLI: Mr. Earl, I don't know that
6 Mr. Neely is exactly the one who's claimed
7 everything here. I think Mr. Neely is a refuge
8 manager who presents certain opinions, but
9 you're attributing a lot to his expertise.
10 BY MR. EARL:
11 Q. Okay. You can answer the question, sir.
12 MS. PONZOLI: Do you want to hear the
13 question again, Mr. Neely?
14 THE WITNESS: Yeah, yeah, because I'm
15 not --
16 MS. PONZOLI: You don't have to answer a
17 question you don't understand.
18 MR. EARL: Read it back again.
19 (Thereupon, a portion of the record
20 was read by the reporter.)
21 MS. PONZOLI: And I will continue my
22 objections that Mr. Neely doesn't know what you
23 mean by EAA generated cattails.
24 MR. EARL: We just clarified it, counsel.
25 MS. PONZOLI: I don't think that happened.
501
1 THE WITNESS: Could you --
2 BY MR. EARL:
3 Q. Could you answer the question?
4 A. Could you clarify it again?
5 Q. Sure, I'll be happy to. And I'm going to
6 ask, in front of the hearing officer I'll ask you the
7 same question.
8 MS. PONZOLI: Good. Fair warning.
9 BY MR. EARL:
10 Q. Okay. Mr. Neely, referring to figure 20
11 which is Exhibit 15 to your deposition, do you have
12 that before you?
13 A. Yes, sir.
14 Q. Okay, sir. And with reference to
15 Loxahatchee, do you see the areas indicated as
16 overdrained areas and areas of extended hydroperiod
17 as marked on this exhibit? Do you see those, sir?
18 A. Yes, sir.
19 Q. Okay, sir. Apart from any perturbances
20 because of the straight line that you've talked about
21 on these areas, two depicted areas, Mr. Neely, are
22 all the cattails which you believe are caused by
23 nutrient-enriched waters from the EAA located within
24 the confines of this overdrained and extended
25 hydroperiod areas on this map?
502
1 A. Yes, sir, I think that this map generally
2 depicts that condition.
3 Q. Okay. Are there any areas where cattails
4 which you believe are caused by nutrient-enriched
5 waters from the EAA that are within Loxahatchee that
6 are not depicted in those areas of extended
7 hydroperiod or overdrained areas?
8 MS. PONZOLI: Do you want to hear the
9 question again?
10 THE WITNESS: Yeah.
11 BY MR. EARL:
12 Q. I'll rephrase it.
13 A. All right.
14 Q. Okay. Other than the areas marked on this
15 map as overdrained and areas of extended hydroperiod
16 and apart from minor perturbances caused by
17 straightness of the lines or inaccuracies which you
18 already talked about, are there any cattail areas in
19 Loxahatchee that you believe are caused by
20 nutrient-enriched waters from the EAA?
21 A. Well, other than the inaccurate depiction
22 of this map, that I consider the inaccurate depiction
23 of this map, the answer would be no.
24 Q. Okay. And you have no more accurate
25 depiction of those areas, do you?
503
1 MS. PONZOLI: Object to form.
2 BY MR. EARL:
3 Q. Of overdrained or areas of extended
4 hydroperiod in Loxahatchee.
5 A. No, sir.
6 Q. Okay.
7 MR. EARL: Let's mark this, please.
8 MS. PONZOLI: Are we going to attach the
9 whole SWIM Plan, Mr. Earl?
10 MR. EARL: We're just attaching the
11 supporting information document.
12 MS. PONZOLI: Oh, well, I'm glad your
13 client has that much money.
14 MR. EARL: We'll mark it and we won't
15 attach it.
16 If you want to look at it and we'll have
17 the witness identify it, then we won't attach
18 it.
19 MS. PONZOLI: I don't see any need to
20 attach it.
21 MR. EARL: Okay.
22 MS. PONZOLI: You used just one page out of
23 it.
24 MR. EARL: Let's just mark it as Number 17.
25 And counsel has stipulated we will not
504
1 attach it.
2 MS. PONZOLI: Are there certain pages we
3 could attach? Are you going to reference a
4 large number of pages?
5 MR. EARL: We'll go through quite a few
6 number of pages.
7 MS. PONZOLI: Okay.
8 (The document was marked
9 Exb. No. 17.)
10 BY MR. EARL:
11 Q. Can you identify that Exhibit 17 for me,
12 sir?
13 A. This is the Supporting Information Document
14 dated March 13th, 1992 of the Surface Water
15 Improvement Management Plan For The Everglades.
16 Q. And that's what this case is about, as you
17 understand it, correct?
18 A. Yes, sir.
19 Q. Okay. Are you familiar with the current
20 status of the regulation schedule for Loxahatchee,
21 Mr. Neely?
22 A. Yes, sir.
23 Q. And has there been a hearing yet on that?
24 Wasn't there a hearing scheduled?
25 A. Yes, sir.
505
1 Q. When was that held?
2 A. I don't recall. I'd have to look in my
3 book. It's been held recently. I could look in
4 my...
5 Q. February?
6 A. Yes, sir.
7 Q. Okay. And has the proposed interim
8 schedule been implemented that that hearing was on?
9 A. No, sir.
10 Q. Are we still operating under the 1975
11 schedule?
12 A. I'm not sure whether we're operating under
13 '75 or we're operating under an interim schedule with
14 a later date. I'm not sure of the date.
15 Q. Okay. Am I correct in understanding that
16 the initial schedule for Loxahatchee which was in
17 effect approximately 1961 to '69, about nine years,
18 resulted in a shortened hydroperiod or areas that
19 were too dry in the Loxahatchee?
20 A. I'm not sure who made that conclusion. I
21 would have to look at the schedule and the data for
22 that, Mr. Earl, to make a determination.
23 Q. Well, what's your understanding of the
24 first 14 to 17 foot schedule that was in effect?
25 What did it do to the marsh?
506
1 A. I don't know, sir, without going back and
2 looking at the data and analy- -- I did not look at
3 that data specifically.
4 Q. Well, what's your general understanding?
5 I'm not asking you --
6 MS. PONZOLI: Well, he's answered two times
7 that without looking at the data, he's not
8 comfortable answering, Mr. Earl. I don't think
9 you can continue to badger him to answer your
10 question.
11 BY MR. EARL:
12 Q. 1969 to 1975, the first change to that
13 schedule, seven years, do you as refuge manager have
14 any understanding of what that time period, what the
15 schedule, what the effect of the schedule was on the
16 marsh?
17 A. No, sir.
18 Q. Okay. How about 1975 to 1993, the current
19 schedule? Do you as refuge manager have any
20 understanding of what that's doing to the marsh or
21 has done to the marsh?
22 A. Yes, sir.
23 Q. What is that?
24 A. The schedule with, with a low end of the
25 schedule has caused the marsh to dry out on numerous
507
1 occasions during droughts and generally on other, and
2 to some extent on other occasions when there wasn't a
3 drought.
4 That's the 11 to 17, right?
5 Q. That's the one that's currently in effect.
6 What is that?
7 A. Yes, sir.
8 Q. Is that 11 to 17?
9 A. 11 is the bottom of the schedule, yes.
10 Q. And am I correct in understanding that
11 schedule was designed to dry out the marsh 30 days
12 every two to three years?
13 A. That's my interpretation of it. I'm not
14 sure about the 30 days, but for a given period of
15 time every two to three years.
16 Q. And what happened? What was the effect of
17 that schedule? How often did it dry out the marsh?
18 A. In my opinion more frequently than every
19 two or three years.
20 Q. Just about every year?
21 A. In some cases every year, but not always.
22 Q. Okay. And what was the effect upon the
23 marsh of that dryout?
24 A. Woody vegetation became established.
25 Q. Whereabouts?
508
1 A. In the areas that dried out.
2 Q. Are those areas depicted on figure 20 that
3 we just looked at?
4 A. No, sir.
5 Q. Okay.
6 A. We're talking about drying out the marsh
7 and we're talking about the entire refuge or Water
8 Conservation Area 1 now.
9 Q. Okay. So you're talking about the entire
10 marsh then here.
11 A. On occasion, yes.
12 Q. As opposed to the perimeters that we've
13 talked about earlier.
14 A. Yes, sir.
15 Q. How often over the last, since 1975 would
16 you estimate that marsh has dried out?
17 A. I would have to estimate. I could look at
18 the data and tell you precisely based on gauge
19 readings.
20 Q. What is your estimate?
21 A. My estimate since '75, considering I've
22 only been there since '81, is that it has done it, it
23 has dried the, the marsh has dried out, oh, ten,
24 twelve, maybe, plus or minus one or two.
25 Q. Ten or twelve times?
509
1 A. Yes, sir.
2 A. Maybe more.
3 Q. And in your opinion has that been too
4 frequent?
5 A. Yes, sir.
6 Q. And do I understand you to say the result
7 has been a change in vegetation from what to woody
8 vegetation?
9 A. Well, if you look at their map, it says
10 historic Everglades vegetation.
11 So I would say from historic vegetation,
12 Everglades vegetation, to sometimes invasive woody
13 vegetation such as melaleuca or even rarely out there
14 Australian pine and along the edges willow.
15 Q. Brazilian pepper?
16 A. Occasionally along the edges.
17 Q. Okay. As refuge manager what is your
18 understanding of the relationship, if any, between
19 melaleuca propagation infestation and hydroperiod?
20 A. That melaleuca infestation spreads during
21 periods of low water.
22 Q. Why is that, sir, as you understand it?
23 A. Basically because the seeds don't generate
24 when they are standing in water; they deteriorate.
25 And if there is a wet peat seed bed, as that refuge
510
1 is basically a peat base, with seed spread on top of
2 a wet peat seed bed, it fosters generation of
3 melaleuca.
4 Q. What is your understanding as refuge
5 manager as to the ability of melaleuca to outcompete
6 sawgrass in drier conditions?
7 A. To outcompete it?
8 Q. Yes, sir.
9 A. I don't have an opinion on that. I know of
10 single melaleucas that are in stands of sawgrass that
11 have no effect other than the two or three feet
12 around the tree on sawgrass.
13 Q. You haven't observed them doing better,
14 outcompeting in drier condition sawgrass?
15 A. In doing what now? Outcompeting?
16 Q. The melaleuca outcompeting sawgrass under
17 drier conditions.
18 A. Yes, sir, because sawgrass is found in the
19 Everglades under wet conditions most of the time.
20 Q. So your answer is you have observed
21 melaleuca outcompeting sawgrass in drier conditions?
22 MS. PONZOLI: Object to the
23 characterization of his answer.
24 BY MR. EARL:
25 Q. I'm just trying to understand your answer.
511
1 MS. PONZOLI: I think you understood it.
2 THE WITNESS: I don't understand your
3 question simply because melaleuca isn't found
4 just in sawgrass, the melaleuca infestations on
5 the refuge.
6 BY MR. EARL:
7 Q. I understand that.
8 We're talking about sawgrass, though, areas
9 where sawgrass and melaleuca are competing.
10 MS. PONZOLI: Do you know of such areas,
11 Mr. Neely? I mean, he's --
12 THE WITNESS: Well, any place you have a
13 melaleuca tree in a sawgrass area, I guess they
14 are competing.
15 But I don't understand what outcompeting
16 means because there's a single tree standing
17 there with sawgrass all around it.
18 BY MR. EARL:
19 Q. Have you seen melaleuca replace sawgrass
20 areas in the Loxahatchee?
21 A. Very small areas around tree islands and
22 possibly in some sawgrass areas melaleuca may have, a
23 melaleuca head may have become established and might
24 have eliminated. I don't recall that as being the
25 general situation.
512
1 Q. As refuge manager do you have an opinion as
2 to whether shortened hydroperiod will allow melaleuca
3 to outcompete sawgrass?
4 MS. PONZOLI: I'm going to object to the
5 form of the question. He said before he didn't
6 understand your outcompeting, so now building a
7 question built on that concept doesn't really
8 help the problem.
9 THE WITNESS: Could you restate the
10 question or re-read the question?
11 BY MR. EARL:
12 Q. Sure.
13 Can melaleuca do better than sawgrass when
14 you have drier conditions?
15 A. Yes, sir.
16 Q. And have you seen that happen in the
17 refuge?
18 A. On occasion.
19 Q. Yes, sir.
20 And do you have any estimate of the amount
21 of area of sawgrass lost to melaleuca?
22 A. No, sir.
23 Q. Would anybody?
24 A. I don't know, sir.
25 Q. Who would know? Mr. Maffei?
513
1 A. I don't know whether he knows or not.
2 Q. Okay.
3 Now, you told me last time I think in your
4 deposition that when, as you understood the history
5 of Loxahatchee, when they first impounded the area,
6 they put the water too high, correct?
7 A. My understanding was that the water went
8 very deep. I don't know whether I characterized it
9 as too high or not. But the first, the first
10 flooding of the Loxahatchee the water was very deep.
11 Q. Too deep for -- was the water deeper than
12 the natural system had experienced?
13 A. My understanding, the answer is yes.
14 Q. As refuge manager would you anticipate that
15 adversely impacted the native vegetation?
16 A. That would depend on how long it was too
17 high, Mr. Earl.
18 Q. Do you have any idea how long it was too
19 high?
20 A. No, sir. I'd have to look at the record
21 and see. My understanding was that it was not a very
22 long period.
23 Q. And did you tell me what next happened was
24 they lowered the water and a drought came along?
25 A. That's my understanding, a drought of '61
514
1 or '62, in that neighborhood.
2 Q. And what effect did that have on the marsh?
3 A. I believe there was some large fires during
4 that time and it dried the marsh out.
5 Q. And what did that do to the native
6 vegetation?
7 A. I would imagine the fire eliminated it for
8 a short period of time till it could regenerate.
9 The drought would cause woody invasions in
10 some areas, woody plant invasions in some areas.
11 Q. Okay. And would you anticipate that there
12 would have been oxidation during that period?
13 A. Yes, sir, I would anticipate there may have
14 been some, some oxidation. I don't know personally
15 how dry the marsh got.
16 Q. Okay. What, if any --
17 A. Oxidation during the fire, certainly.
18 Q. Now, I'm talking about oxidation apart from
19 the fire in the dry periods.
20 A. I have no idea how, how dry the marsh got
21 and whether it got to oxidation status or not.
22 Q. Okay. Does the Loxahatchee peat, does that
23 oxidize when it gets dried out?
24 A. Yes, sir, I would imagine. It's an organic
25 material.
515
1 Q. Okay, sir. And what happens to the soil
2 phosphorus concentrations when that soil oxidizes, if
3 you know?
4 A. I don't know, sir. You're asking a
5 technical question that I don't have knowledge of.
6 Q. You've never talked about soil oxidation in
7 the EAA and what the impact of that is?
8 A. I've --
9 MS. PONZOLI: Object to form.
10 BY MR. EARL:
11 Q. Have you ever talked about soil oxidation
12 in the EAA?
13 A. Yes, sir.
14 Q. And what happens up there? What happens to
15 phosphorus levels when that soil oxidizes?
16 A. I have to assume that there's a
17 concentration of phosphorus in that soil.
18 Q. An increased concentration.
19 A. An increased concentration because of the
20 oxidation of the peat and the tilling and the rinsing
21 through the rainfall.
22 Q. Do you have any information which would
23 lead you to believe that that same process would not
24 happen, the oxidation and concentration of
25 phosphorus, in the natural areas overdrained in
516
1 Loxahatchee?
2 A. Well, that would depend on how much they
3 were overdrained and for how long.
4 My opinion is that most of the times that
5 the, we've experienced a drought and the water levels
6 have receded off the marsh for periods of time during
7 the drought, which may be short, there could be some
8 oxidation. But generally speaking, the peat remains
9 moist in the refuge, not always, but the very --
10 when, when -- it depends on how, how low the water
11 goes during the drought and how often you have
12 rainfall on top of that.
13 Q. Well, since 1991 how often in your
14 experience have the natural areas gone dry so as to
15 be in an oxidating state?
16 A. Since 1991?
17 Q. Since 1981 when you came.
18 A. You said '91. I'm sorry.
19 Since 1981?
20 Q. Yes.
21 A. There was a drought in progress in 1981
22 when I came here, there was another drought in the
23 eighties, and there was a severe drought in '89-'90,
24 if I recall correctly.
25 Q. Okay. And did you observe the marsh being
517
1 dry for extended periods?
2 A. In 1981 the marsh was dry. I -- extended
3 period being three or four months?
4 Q. You tell me.
5 A. I'm asking you what your --
6 Q. What do you think it takes to oxidize? Do
7 you have any idea?
8 A. I don't have any idea.
9 Q. Okay. How long was the marsh dry in '81,
10 to your knowledge?
11 A. Specific -- exactly, no, I don't.
12 Q. Roughly.
13 A. It ended in July -- let me think just a
14 minute.
15 I can't remember whether the drought ended
16 in July or August, and I know it had started in, it
17 was already in effect when I arrived in March, so I
18 don't know whether it started in '81 or '80.
19 Q. What's your best estimate of the time the
20 marsh was dry?
21 A. In 1981?
22 Q. Yes, sir.
23 A. We're mixing apples and oranges here,
24 Mr. Earl.
25 Are you talking about hydroperiod or the
518
1 marsh staying wet or dry? Because we did receive
2 some rainfall on that marsh during that time that
3 would have rewet it.
4 Q. I'm talking about the marsh being dry
5 enough to oxidize.
6 A. I don't have any knowledge whatsoever of
7 the marsh being dry enough to oxidize.
8 Q. Okay. How long was the marsh dry in '81?
9 A. I arrived in March of '81. The marsh was
10 dry at that period of time. And we had rainfalls
11 during March, April, May and June. In July we, I
12 believe it was July that we had a tropical storm that
13 reflooded the area.
14 Q. And when did you have the fires in '81?
15 When was that?
16 A. Two small fires in 1981. I don't remember
17 the exact dates, but I remember it was prior to July.
18 I'd have to look for the exact dates.
19 Q. Okay.
20 A. I don't remember whether it was April or
21 May.
22 Q. What about '80? Do you believe the soils
23 oxidized in 1980?
24 A. I don't know, sir.
25 Q. Your answer would be the same for the '89
519
1 and '90 drought?
2 A. I know that we had some, some of the soils
3 during the -- during '89-'90 that did oxidize 'cause
4 we had a 41,000, 43,000 acre fire and I'm sure --
5 Q. Apart from the oxidation process.
6 A. I have no knowledge of how much soil
7 oxidized in the refuge due to drought.
8 Q. And who on your staff would be most
9 knowledgeable about the oxidation process of those
10 soils in the Loxahatchee?
11 A. I would assume Dr. Maffei. He's the senior
12 biologist.
13 Q. Okay. Let's go to what we've marked as --
14 A. Exhibit 17?
15 Q. -- Exhibit 17.
16 THE WITNESS: When it becomes convenient,
17 I'd like to go to the rest room.
18 MR. EARL: Let's do it right now. Five,
19 ten minutes.
20 (Thereupon, a recess was taken from
21 11:10 a.m., until 11:20 a.m.)
22 MR. EARL: Would you mark this as Number 18
23 while we're waiting.
24 (The document was marked
25 Exb. No. 18.)
520
1 BY MR. EARL:
2 Q. Hand you now Number 18. Can you tell me
3 what that is, sir?
4 A. Exhibit 18? It's page 118 from the
5 Supporting Information Document --
6 Q. Okay.
7 A. -- of the Everglades SWIM Plan.
8 Q. And does that accurately depict the current
9 regulation schedule for Water Conservation Area 1?
10 A. Yes, sir, that depicts the current
11 regulation.
12 Q. Is it accurate?
13 A. As best I can tell it is.
14 Q. Okay.
15 A. One of the dashed lines is kind of hard to
16 see, but it's accurate.
17 Q. Okay.
18 Now, would you go to the supporting
19 document Number 17, please, and direct your attention
20 there to page 117 of that document.
21 A. Okay, sir.
22 Q. The last paragraph on that page says, "The
23 schedule for WCA-1 has been altered twice since the
24 original 1960 federally approved plan was
25 implemented."
521
1 Is that correct as you understand it?
2 A. Yes, sir.
3 Q. Okay. Goes on to say, "And the U.S. Fish
4 and Wildlife Service has developed a proposed
5 modification of the current schedule for
6 consideration in 1989-1990."
7 A. Yes, sir.
8 Q. Is that the one you talked about earlier
9 they just had a hearing on, is not yet implemented?
10 A. Not yet implemented.
11 Q. Okay.
12 A. The Corps had, the Corps held a public
13 hearing on it, and it has not been officially
14 implemented.
15 Q. Okay, sir.
16 Now the next sentence states, "The original
17 schedule called for water levels to fluctuate from 14
18 to 17 feet (NGVD), but allowed the water to drop very
19 quickly, leaving the area's marsh dry for extended
20 periods of time."
21 Now, is that accurate as you understand the
22 history of Loxahatchee?
23 A. Without having that schedule in front of
24 me, yes, sir, it was a steeper drop in the early part
25 of the year.
522
1 Q. And what was the impact of that on the
2 marsh?
3 A. Well, I would assume that if they dropped
4 the water rather quickly during the dry season, that
5 the marsh was exposed at certain times, but I have no
6 knowledge of whether it was or it wasn't.
7 Q. Okay. It's your understanding of the
8 history that it was, for extended periods of time it
9 was dry?
10 A. We're back at extended periods of time,
11 Mr. Earl.
12 I don't know what you mean by an extended
13 period.
14 To me an extended period is three or four
15 months.
16 Q. Well, I'm looking at the SWIM Plan, and
17 they are saying extended period. I don't know
18 either.
19 A. I have --
20 Q. You don't have any idea?
21 A. I have no idea what they are referring to.
22 Q. In terms of overdrying, what would you say
23 would be an extended period?
24 MS. PONZOLI: He just answered that,
25 Mr. Earl.
523
1 MR. EARL: No, he didn't.
2 THE WITNESS: Three or four months.
3 BY MR. EARL:
4 Q. Would be overdrying?
5 A. Yes, sir.
6 Q. Any time it was dry more than three or four
7 months you'd have an overdried marsh?
8 A. That's my opinion, that I would think you
9 would start into an overdrying if it continued from
10 that point on.
11 Q. Okay. Beyond three or four months.
12 A. Yes, sir.
13 Q. Well, is that your understanding of the
14 natural Everglades, northern Everglades hydroperiod
15 would be, there would be eight to nine months of
16 water, the marsh would be under water, and three or
17 four months it would be dry, is that --
18 A. No, sir.
19 Q. Tell me what it is then.
20 A. Tell you my, what my --
21 Q. The Loxahatchee, the northern --
22 A. Original Everglades?
23 Q. The natural Everglades hydroperiod up
24 there, yes, sir.
25 A. That the water level fluctuated between
524
1 probably during drought seasons no water on the marsh
2 to -- and there's been records of deep water four to
3 six, eight feet out there. I don't know how accurate
4 those records are.
5 Q. How often would the marsh normally on
6 average dry out?
7 A. I don't think the marsh ever dried out --
8 Q. How long would it be dry?
9 A. -- except under severe conditions.
10 Q. Under natural circumstances.
11 A. Under, under severe natural circumstances.
12 Q. Such as an extended drought?
13 A. Yes, sir.
14 Q. Okay, sir.
15 Now, direct your attention to the next on
16 page 118, the next sentence.
17 A. Okay, sir.
18 Q. States, "During the first nine years of
19 operation of this schedule --" they are talking about
20 the original one, sir.
21 A. Yes, sir.
22 Q. "-- water levels frequently fell to 11 feet
23 NGVD.
24 A. Yes, sir.
25 Q. And what was the impact of that?
525
1 A. Well, based on my knowledge of the area,
2 the entire marsh would be, would be drained. I'm not
3 sure how long the level stayed at 11 feet it would
4 facilitate drying out of the marsh, but the marsh
5 level is about, ranges between 16 and a half feet at
6 the north and 12 feet at the south.
7 Q. At 11 feet would there be any area that
8 would be not exposed?
9 A. Yes, sir, there could be areas. The
10 canal -- if this is measured in the canals. I'm not
11 sure they are talking about water levels. I guess --
12 I'm assuming they mean in the canal.
13 If they mean in the center of the marsh,
14 then in the center of Water Conservation Area 1 that
15 would be three feet below the surface generally, but
16 I'm not sure.
17 Q. Aren't we generally talking -- isn't the
18 gauge in the canal, canals?
19 A. Yes, sir, the gauge in the canal differs
20 greatly from the gauges on the interior.
21 Q. Okay. When the gauges in the canal are at
22 11 feet, is the entire marsh exposed?
23 A. Not necessarily.
24 Q. Okay. Explain that to me.
25 A. There could be standing water in the
526
1 interior of the refuge that is slowly seeping through
2 the peat to the canals because the elevation floor of
3 the marsh in the center of the refuge ranges between
4 14, 15, 15 and a half, 16 feet and it could have
5 water standing on it in the center of the refuge when
6 the canal is at 11 feet.
7 Q. Based on your experience when the canal's
8 at 11 feet, how long would it take for the refuge to
9 dry out?
10 A. Well, again, that has to be qualified. It
11 depends on whether you're getting your rainfall
12 during that period or not.
13 If you're in a severe drought, it could
14 take -- and it depends on the transpoevaporation
15 (sic). It's unpredictable based on weather
16 conditions.
17 Q. How long has it taken in your experience to
18 dry out?
19 A. And by drying out you mean dry to what
20 depth?
21 Q. Well, when would you consider dried out so
22 as to have an adverse impact on the vegetation?
23 A. After the water had been off of it three or
24 four months.
25 Q. And what depth would it be down to by then?
527
1 A. That would depend again on whether you had
2 had rainfall, what time of year it was, whether there
3 was high or low transpoevaporation.
4 Q. Let's assume normal conditions.
5 MS. PONZOLI: I think you're mixing --
6 THE WITNESS: There are no normal
7 conditions, Mr. Earl, in the Everglades.
8 BY MR. EARL:
9 Q. How low does the water level have to go
10 before it's adverse to the vegetation?
11 A. How low where?
12 Q. Below ground elevation.
13 MS. PONZOLI: I think the problem,
14 Mr. Earl, is you keep mixing the depth of the
15 drying out with the length of the time and
16 putting the two together and he keeps separating
17 them back again.
18 THE WITNESS: Yes, sir. I can't --
19 BY MR. EARL:
20 Q. Well, you told me -- go ahead.
21 A. There's any number of factors that will
22 depend on the condition of the marsh at the time, and
23 if you pick one of those, I can't give you an answer.
24 Q. Well, you're talking about -- you asked me
25 how, by dry, you said how low is the water in the
528
1 marsh. Do you remember that?
2 A. Yes, sir.
3 Q. You said how low has the water gone.
4 A. Yes, sir.
5 Q. How deep was it dry.
6 A. Okay.
7 Q. Do you remember that?
8 A. In the marsh.
9 Q. Yes.
10 A. Okay.
11 Q. Now I'm asking you in your judgment how
12 deep, how low would the water have to go for you to
13 consider it dry so as to damage vegetation?
14 A. Again, that depends on whether you have any
15 rainfalls or what the transpoevaporation rate is.
16 You're asking me to give you a condition
17 based on only one influencing situation.
18 Q. Okay.
19 A. And that's water depth.
20 Q. You're unable to do that?
21 A. Yes, sir, not without knowing the
22 parameters of the situation.
23 Q. Okay. Let's go back to that paragraph. It
24 next states, "In 1969, WCA-1's schedule was altered,
25 raising the minimum to 15 feet NGVD to augment water
529
1 supply in the dry season."
2 Is that accurate as you understand the
3 history of Loxahatchee?
4 A. I apologize for that beeper, but that could
5 be something to do with the documents we asked --
6 Q. Do you want to take a break and call?
7 A. -- we asked to be delivered.
8 MR. EARL: Off the record.
9 (Discussion held off the record.)
10 MR. EARL: Let's go on the record.
11 Mr. Neely has just spoken with his office.
12 BY MR. EARL:
13 Q. And what is the report?
14 A. They cannot locate the 1992 narrative.
15 Sometime back before Christmas we had new
16 carpet put in, and all of our bookshelves were torn
17 out and everything was in boxes stored under a table.
18 The bookshelves have not been reinstalled
19 and we do not know where the narrative is, whether
20 they've looked -- they've checked everybody's desk.
21 They've looked for it.
22 MS. PONZOLI: Can we continue looking,
23 Mr. Neely?
24 THE WITNESS: Oh, absolutely.
25 MS. PONZOLI: Because we'll be here
530
1 tomorrow.
2 BY MR. EARL:
3 Q. And we really need that to complete your
4 deposition.
5 A. They'll continue to look. They've been --
6 it's been shuffled around. Nobody just knows where
7 it is. It could be in any 20 or 30 boxes, it could
8 be laying on somebody's desk or it could be
9 misplaced. I have no idea. I've not seen it in a
10 year.
11 Q. Would you convey the urgency to them?
12 Because, otherwise, we will continue this deposition.
13 MS. PONZOLI: Mr. Neely, can a copy of that
14 be Fed Ex'd down from Atlanta? I want to finish
15 your depo tomorrow.
16 THE WITNESS: Possibly. That's an answer.
17 Let me talk to Mark --
18 MS. PONZOLI: Okay.
19 THE WITNESS: -- and see.
20 MS. PONZOLI: Because I would like to
21 finish tomorrow.
22 THE WITNESS: Could I go back off the
23 record?
24 MS. PONZOLI: Yes.
25 MR. EARL: Yes.
531
1 (Discussion held off the record.)
2 THE WITNESS: Okay. They are going to try
3 to get the first 30 pages faxed here.
4 (Discussion held off the record.)
5 BY MR. EARL:
6 Q. Are we back on the record?
7 A. Okay, sir.
8 Q. "In 1969, WCA-1's schedule was altered --"
9 we're again reading from page 118.
10 A. Yes, sir.
11 Q. "-- raising the minimum to 15 feet NGVD to
12 augment water supply in the dry season."
13 And the next sentence states, "This new
14 schedule kept much of the marsh inundated throughout
15 the year."
16 Do you agree with that?
17 A. Yes, sir.
18 Q. And goes on to say, "Eliminating seasonal
19 drying of the marsh."
20 Do you agree with that?
21 A. If it were kept at a minimum of 15 feet, I
22 would.
23 Q. Okay. And what was the impact on the
24 vegetation of Loxahatchee as a result of eliminating
25 seasonal drying?
532
1 A. It probably prohibited woody vegetation
2 from spreading and restored wet prairie type marshes
3 to their natural conditions with water on them.
4 Q. Any adverse effects of not drying out?
5 A. None that I can recall. I don't have any
6 idea of any adverse effects since...
7 Q. If you don't dry the marsh down every
8 several years, there's no adverse effects?
9 A. Completely dry it out you mean?
10 Q. I don't know. Whatever it's talking about
11 here.
12 A. I don't know what you mean either then.
13 Drying for short periods of time...
14 Q. "Eliminating seasonal drying of the marsh,"
15 Mr. Neely. Do you know what that means?
16 A. No, sir.
17 Q. You don't know what seasonal drying of the
18 Loxahatchee marsh is.
19 A. Natural seasonal drying?
20 Q. Yes, sir.
21 A. No, sir.
22 Q. Okay.
23 A. I don't think the marsh seasonally dried
24 that often.
25 Q. Okay. So this schedule that went in place
533
1 in 1969 was -- and it's still in place; is that
2 correct?
3 A. Yes, sir, as far as I know. Let's see.
4 The '75 -- most of this is a '75 schedule.
5 That's not correct.
6 Q. Okay. Were there any adverse effects of
7 the schedule that they are talking about here that
8 went in place in '69 to your knowledge?
9 A. None, not to my knowledge.
10 Q. Okay.
11 Now, the next paragraph says, "The
12 U.S. Fish and Wildlife Service proposed that the
13 schedule be changed three years later and by 1975
14 obtained the District's support and USCOE approval
15 for a modification of the original 14 to 17 foot
16 schedule."
17 A. Yes, sir.
18 Q. "The 1975 schedule, which is still in
19 effect, is designed to allow the marsh to dry out for
20 a period of 30 days or more every two or three years,
21 on average."
22 A. Yes, sir.
23 Q. If there were no problems with the 1969
24 schedule, why was it changed in '75?
25 A. I don't know, sir.
534
1 MS. PONZOLI: Object to form.
2 BY MR. EARL:
3 Q. You have no idea why the Fish and Wildlife
4 Service proposed changing it?
5 A. Not without going back and researching the
6 documents to find out specifically why. I would
7 imagine there were a multitude of issues.
8 Q. Well, it says here that the '75 schedule
9 was designed to allow the marsh to dry out for a
10 period of 30 days or more every two or three years on
11 average.
12 Is that a desirable goal?
13 A. For my management of it?
14 Q. Yes, sir.
15 A. No, sir.
16 Q. Why not?
17 A. I don't think that it should dry out that,
18 that often.
19 Q. How often should it dry out?
20 A. I would say between every three to five
21 years.
22 Q. Okay. When you say dry out --
23 A. And I do not mean severe drought
24 conditions. I mean water levels, I'm talking about a
25 change in hydroperiod as opposed to completely drying
535
1 out the marsh.
2 Q. Okay.
3 A. We keep mixing these terms.
4 Q. Well, that's what I'm trying to get your
5 definition. You said it should dry out every three
6 to five years.
7 Would you define drying out as you used it
8 there?
9 A. I would say water levels being off --
10 standing water being off some of the marsh, not all
11 of the marsh.
12 Q. Okay. And what areas, how much of the
13 marsh, in the ideal situation you're trying to
14 achieve here?
15 A. For the '75 schedule?
16 Q. No, sir. You said the ideal situation you
17 would want in terms of drying out would be to dry out
18 every three to five years, correct?
19 A. Yes, sir.
20 Q. Okay.
21 Now I'm asking you as you are using the
22 term drying out there, how much of the marsh would be
23 dried out ideally? What areas?
24 A. Well, still not, still not knowing what
25 your definition of drying out might be --
536
1 Q. What is yours? What is yours, Mr. Neely?
2 A. I would say having standing water off the
3 marsh is what I -- that's not, that doesn't connotate
4 drying out. It connotates a change in hydroperiod.
5 Q. Okay. And you think that's the ideal
6 condition, every three to five years taking standing
7 water off?
8 A. Probably.
9 Q. Okay. And how much of an area would still
10 be inundated in that three to five years?
11 A. Probably -- I'm going to have to guess on
12 this because I don't know under what conditions water
13 levels would be or whether you would have rainfall or
14 not during that period of time. But I would say that
15 you'd have water off the, off --
16 MS. PONZOLI: Mr. Neely, I don't want you
17 guessing. If you can give him an estimate, I
18 don't mind that. And he'll say I'm coaching
19 you, but I don't want you guessing. That's a
20 real problem.
21 THE WITNESS: I would say roughly
22 two-thirds of the marsh.
23 BY MR. EARL:
24 Q. And what areas of the marsh would that be?
25 What would the one-third still inundated, where would
537
1 that be?
2 A. Some of it would be on the south end.
3 Q. The area called the flats down there?
4 A. Would be in the, in an area below whatever
5 elevation the water level was at.
6 Q. That makes sense.
7 A. And possibly there could be standing water
8 in the center of the refuge if you were having rain.
9 I mean, you're asking for characterizations
10 without all the parameters, and I can't, you know, I
11 can't give you an estimate of how much would be dry
12 if it's raining every other day.
13 Q. I'm just asking you, your every three to
14 five years you told me --
15 A. Right.
16 Q. -- the ideal situation would be you'd have
17 water off. You told me your best estimate would be
18 about a third of the marsh would still be inundated.
19 I'm asking you generally to describe what
20 areas of the Loxahatchee would still be inundated.
21 A. Generally the south end below whatever
22 level the canal level was and possibly some of the
23 areas between the canal and the center and even
24 possibly the center of the refuge. It just, it would
25 change based on conditions at that particular time.
538
1 Q. Can you generalize based on the topographic
2 contour?
3 MS. PONZOLI: Object to form. That's not
4 what he's answered before. He's told you before
5 there's a lot of parameters.
6 THE WITNESS: On -- possibly.
7 BY MR. EARL:
8 Q. Explain that. What do you mean "possibly"?
9 A. Well, again, it depends on how much
10 transpoevaporation you have, how long the water
11 levels are at a certain low stage, whether you have
12 rainfall or not as to whether you would have water
13 collecting in the center or water drying out in the
14 center. I just, I can't answer that.
15 Q. It's your hypothetical. You told me every
16 three to five years. I'm asking you on average what
17 these conditions would be as you understand them.
18 MS. PONZOLI: I don't think it's exactly
19 his hypothetical. I think it's an outgrowth of
20 the question you put to him in the first place.
21 BY MR. EARL:
22 Q. Can you answer the question?
23 A. As to how much is going to be dry or where
24 it's going to be dry?
25 Q. As to generally where it would be dry
539
1 under, on average conditions. You told me the south.
2 And then are there other areas --
3 A. Depending on the levels in the canal, it
4 could be around the fringes of the marsh adjacent to
5 the canals, it could be in the center. It just
6 depends on all of the conditions combined at one
7 time.
8 Q. Okay. We can model that, can't we?
9 MS. PONZOLI: Object to form. That's not a
10 natural conclusion of what he said.
11 BY MR. EARL:
12 Q. Can we model those conditions?
13 A. I have no idea. Water --
14 Q. Have you seen the model inundation
15 frequencies for the Loxahatchee?
16 A. I've seen the ones that the Water
17 Management District has done.
18 Q. Okay. Have you all done any yourself?
19 A. No.
20 Corps of Engineers and Water Management
21 District's the only modelers I know of.
22 Q. Okay.
23 MR. EARL: Can we mark that as 19, please.
24 (The document was marked
25 Exb. No. 19.)
540
1 (Discussion held off the record.)
2 BY MR. EARL:
3 Q. Have you seen this before, Mr. Neely?
4 A. Yes, sir.
5 Q. What is it?
6 A. This is a proposed interim regulation
7 schedule for the Loxahatchee National Wildlife
8 Refuge.
9 Q. Is that the one --
10 A. Actually for Water Conservation Area
11 Number 1, not the entire refuge.
12 Q. Okay. And is this the one currently we've
13 just had the hearing on in February?
14 A. Yes, sir, to the best of my knowledge it
15 is.
16 Q. Okay.
17 Now let me direct your attention to the
18 second page of that exhibit.
19 A. Okay.
20 Q. Do you have that in front of you, U.S. Fish
21 and Wildlife stationery?
22 A. Yes, sir.
23 Q. Says "Proposed Interim Regulation
24 Schedule"?
25 A. Yes, sir.
541
1 Q. Who prepared this, to your knowledge?
2 A. I think that Dr. Maffei prepared this. I
3 can't be certain of that. Could have been someone on
4 the staff at Loxahatchee. But the refuge prepared
5 it.
6 Q. You looked at it before it went out,
7 though, correct?
8 A. Yes, sir.
9 Q. Okay. The first paragraph says, "Purpose:
10 To increase the hydroperiod of the marsh within the
11 refuge, to reverse the trend whereby habitat types
12 which require relatively drier conditions are
13 replacing wetter habitat types."
14 A. Yes, sir.
15 Q. Where is that happening in the refuge?
16 A. Well, one place is on the north end that I
17 described earlier.
18 Q. And along the perimeters of the canal also?
19 A. Possibly.
20 Q. Well, is it or isn't it to your knowledge?
21 A. Well, we're getting into, "Reverse the
22 trend whereby..." I'm not sure that this is going
23 to -- let's see. "Relatively drier conditions..."
24 If those areas along the canal are caused,
25 are caused by hydroperiod altogether, yes, this would
542
1 reverse that.
2 Q. What do you mean hydroperiod altogether?
3 A. Well, there's more factors of the habitat
4 conditions along the canal than just hydroperiod.
5 Q. We understand that.
6 A. Okay.
7 Q. Is this going to have any effect on the
8 vegetation along the canals?
9 A. Yes, it probably will.
10 Q. Okay. What would you expect that would be?
11 A. I would think we would see some of the
12 woody plants dying, not all of them, but some of the
13 woody plants and some of the moist soil plants.
14 Q. Okay. And those resulted from what? Why
15 were they there?
16 A. They were probably there because of low
17 water levels.
18 Q. Okay. And it says it's also the purpose,
19 "To allow for increases in the populations of aquatic
20 organisms --"
21 A. Yes, sir.
22 Q. "-- which are the primary food resources
23 for the higher vertebrates which utilize the marsh."
24 What do you mean by that?
25 A. Insect larva, minnows, tadpoles. Anything
543
1 that lives in water, aquatic organisms.
2 Q. Why would it be increasing the population?
3 You're just increasing the size of the nursery areas
4 or...
5 A. Well, if you have an aquarium and you don't
6 have water in it, you can't have aquatic organisms.
7 It's the same situation.
8 Q. So has that been one effect of the
9 overdrainage, loss of these aquatic organisms?
10 A. Under severe conditions, yes.
11 Q. Has that happened in the Loxahatchee?
12 A. Yes.
13 Q. Next paragraph, "Problem: The current
14 interim regulation schedule was implemented in the
15 mid 1970's --"
16 Have you got another beeper?
17 A. Yes, sir. Would you like for me to check
18 it or --
19 Q. Let's continue the exciting drama. The fax
20 here has got me enthralled.
21 MR. EARL: Off the record for a few
22 minutes.
23 (Discussion held off the record.)
24 BY MR. EARL:
25 Q. Okay.
544
1 A. Apparently they got through and this
2 stuff's to be faxed here. They have some other stuff
3 at the office that we had asked, you had asked for,
4 and they are faxing that also.
5 Q. Great, thank you.
6 THE WITNESS: Before we go back on the
7 record.
8 (Discussion held off the record.)
9 MR. EARL: Okay. Let's go back on.
10 Could you read back the last question,
11 please, before the beeper?
12 (Thereupon, a portion of the record
13 was read by the reporter.)
14 BY MR. EARL:
15 Q. "Problem."
16 A. Okay, sir.
17 Q. "The current interim regulation schedule,"
18 this document says, "was implemented in the mid
19 1970s, and was designed, in part, to dewater the
20 marsh once every three years."
21 Do you agree with that?
22 A. Yes, sir.
23 Q. The document next states, "In practice, the
24 marsh is dewatered almost every year."
25 Do you agree with that?
545
1 A. Yes, sir.
2 Q. And what have been the vegetative impacts
3 of that dewatering almost every year?
4 A. Invasion of woody plants including
5 melaleuca.
6 Q. Okay. When it says, "In practice, the
7 marsh is dewatered every year," do you mean the
8 entire Loxahatchee?
9 A. I have no idea. I don't know whether
10 Dr. Maffei meant the entire, the entire area or the
11 major portion of the area. I would interpret this to
12 mean the major portion of the area.
13 Q. And you'd still have the low elevations
14 with water on them?
15 A. Yes, sir.
16 Q. And you told me earlier, did you not, that
17 when the whole area that's dewatered you have -- do
18 you have woody vegetation coming into the whole
19 refuge?
20 A. You, you would have some woody vegetation
21 coming in in places.
22 Q. In the center, too?
23 A. Yeah, in the center, too.
24 Q. Do you have melaleuca in the center of the
25 marsh?
546
1 A. Yeah. Exactly in the center on the
2 interior of the refuge, yes, sir.
3 Q. The center area.
4 A. Yes, sir. I would have to look at a map.
5 I imagine there's a tree, you can find a tree almost
6 anywhere out there; single trees, not massive stands
7 or heads.
8 Q. How big is the melaleuca monoculture out
9 there?
10 MS. PONZOLI: Object to form.
11 THE WITNESS: I don't think there is a
12 melaleuca monoculture.
13 BY MR. EARL:
14 Q. There isn't?
15 A. As opposed to?
16 Q. There's no areas where melaleuca have
17 completely taken over, driven out the other species?
18 A. Yes, sir, but they're isolated heads. Some
19 of them probably very small acreage and some of them
20 larger acreage, but they're not all --
21 Q. What would be the largest area?
22 A. -- they're not all connected.
23 Q. What would the largest monoculture area be
24 that you're aware of?
25 MS. PONZOLI: Object to form. He's using
547
1 the term head and you're using the term
2 monoculture.
3 THE WITNESS: I'm not even sure that there
4 would be a monoculture. There would probably be
5 some other plants down underneath the melaleuca.
6 There are malaleuca heads scattered
7 throughout the refuge.
8 BY MR. EARL:
9 Q. Areas, let's talk about areas where
10 melaleuca's the dominant species.
11 A. Okay.
12 Q. Do you know what that means?
13 A. Um-hum.
14 Q. Are there areas like that in the
15 melaleuca -- I'm sorry, in Loxahatchee?
16 A. Yes, sir, there are malaleuca heads on the
17 refuge.
18 Q. You call them heads.
19 What do you mean by heads?
20 A. It's a group of trees or a defined area of
21 trees that are spread, they tend to be spreading.
22 Q. And what's the largest such area you're
23 aware of?
24 A. Where it's predominantly melaleuca?
25 Q. Yes, sir.
548
1 A. I don't know which one's the largest,
2 Mr. Earl. There's some out there that are probably
3 five to ten acres in size.
4 Q. How many --
5 A. There could be some bigger than that. I
6 just don't know. We've never measured it that way.
7 Q. As refuge manager what would be your best
8 estimate of the acreage of the Loxahatchee in which
9 melaleuca are the predominant vegetation?
10 MS. PONZOLI: Is predominant the same as
11 dominant, Mr. Earl?
12 MR. EARL: Yes.
13 MS. PONZOLI: And is that more than 51
14 percent?
15 BY MR. EARL:
16 Q. How do you define that as a biologist,
17 Mr. Neely, predominant?
18 A. I would define that as the area, an area
19 that had the most of a certain type of vegetation.
20 Q. Well, you told me there were several areas
21 five to ten acres.
22 How were you using the term then?
23 A. That it's mostly, predominantly melaleuca.
24 Q. Okay.
25 A. And that's --
549
1 Q. I understand.
2 A. It's evident by standing in it.
3 MS. PONZOLI: Well, I just think as an
4 attorney I want to know what the questions mean
5 and what the answers are meaning, and I'm not
6 sure that I'm hearing that the questioner and
7 the answerer are using the same definition of
8 dominant.
9 MR. EARL: I'm using his definition,
10 counselor, that he just gave. Thank you.
11 MS. PONZOLI: So where you asked about
12 areas where melaleuca is the dominant
13 vegetation, you mean where melaleuca is mostly.
14 MR. EARL: Actually the word I'm using is
15 predominant right now. That's what your witness
16 just defined and he said it's mostly.
17 MS. PONZOLI: So when you say dominant,
18 Mr. Earl, you mean predominant or mostly.
19 MR. EARL: I'm using the witness'
20 definition. I'm not going to be cross-examined.
21 You can listen to his definition.
22 MS. PONZOLI: I understand, I understand.
23 Well, then I think the witness needs to
24 understand that we're playing games with words
25 here that will have a great significance at the
550
1 time of trial and we better be sure what we're
2 answering because it's gone from dominant to
3 predominant to mostly.
4 MR. EARL: Why don't you let me ask him
5 questions. If you'd let me ask him some
6 questions, maybe he could clarify it.
7 MS. PONZOLI: Well, I think you need to
8 clarify your question, is my concern.
9 BY MR. EARL:
10 Q. When you used the term dominant a little
11 while ago, Mr. Neely, what were you referring to in
12 that term as a biologist?
13 MS. PONZOLI: The question came from you,
14 Mr. Earl. Dominant has got to be defined by
15 you.
16 MR. EARL: No, it doesn't. I'm asking him
17 what his definition --
18 THE WITNESS: I don't think I used the word
19 dominant. I used the word predominant.
20 BY MR. EARL:
21 Q. Okay. Do you know what the term dominant
22 means as a biologist in terms of vegetation?
23 A. Yes, sir.
24 Q. How do you define that word?
25 A. That would be where a certain type of
551
1 vegetation is found more often than any other type of
2 vegetation.
3 Q. Do you distinguish between the term
4 dominant and predominant that you used earlier?
5 A. Yes.
6 Q. You do?
7 A. I would.
8 Q. Okay. Tell me the difference.
9 A. I would say that you could have predominant
10 vegetation or melaleuca predominantly in an area but
11 you would have a significant amount of other
12 vegetation.
13 Q. So the melaleuca in that area would not be
14 dominant, is that what you're saying?
15 A. Well, Mr. Earl, the other types of
16 vegetation are scattered throughout the melaleuca.
17 Q. I understand that. I'm asking you how you
18 define --
19 A. And there are any number of species.
20 Q. Okay. I understand that.
21 A. Okay.
22 Q. Now, tell me the difference as a biologist,
23 if there is any in your mind, in your use in terms of
24 vegetation of the term predominant and the term
25 dominant. What, if any, difference is there?
552
1 A. I would say dominant the other vegegation
2 would be limited if we're talking about melaleuca
3 being dominant as opposed to the other vegetation
4 being not near as limited with predominant.
5 Q. So if we had a dominant melaleuca area, in
6 your mind that would be there would be more melaleuca
7 there or less than in a predominant area?
8 A. If we had an area that was dominantly
9 melaleuca, is that your question?
10 Q. As --
11 A. Dominantly melaleuca.
12 Q. As compared with an area that was
13 dominantly melaleuca, which area would have more
14 melaleuca?
15 A. Compared to the other vegetation? The
16 dominantly one.
17 Q. Okay. So in a given spatial area in a
18 dominant area you'd have more melaleuca than you
19 would in a predominant area, do I understand you
20 correctly?
21 A. That's the way I would determine it --
22 define it.
23 Q. Okay. Are there areas, as refuge manager
24 are you aware of areas in which melaleuca predominate
25 in Loxahatchee?
553
1 A. There are tree islands throughout the
2 refuge that would be predominantly melaleuca but with
3 a significant amount of other vegetation.
4 Q. And are there areas in which melaleuca
5 dominate?
6 A. Very small areas called heads.
7 Q. Do you use that term -- explain to me the
8 term heads.
9 You said it was melaleuca, correct?
10 A. Yes, sir, it's a stand of melaleuca.
11 Q. Okay.
12 A. A thick stand of melaleuca.
13 Q. Okay.
14 A. Like a cypress head? A melaleuca head.
15 Q. Okay. And do you have heads with both
16 dominant and predominant melaleuca composition?
17 A. I would say that you had heads, it could
18 be, it would most likely be dominant, but you could
19 have predominantly heads that are first getting
20 established and all the other vegetation hadn't been
21 crowded out.
22 Q. Okay. As refuge manager, Mr. Neely, what
23 would you estimate the total acreage of Loxahatchee
24 in which melaleuca dominate?
25 MS. PONZOLI: Asked and answered.
554
1 THE WITNESS: I could guess. I can't
2 answer that.
3 BY MR. EARL:
4 Q. What's your best estimate as refuge
5 manager?
6 A. I would guess. I can't estimate.
7 MS. PONZOLI: You're not supposed to guess.
8 THE WITNESS: I can't estimate because I
9 have nothing to go on.
10 MS. PONZOLI: I don't want you guessing.
11 BY MR. EARL:
12 Q. Would your answer be the same as to the
13 acreage that is predominant?
14 A. Yes, sir.
15 Q. Are there any studies, graphics, analysis
16 which would help you answer that question?
17 A. No, sir, none that I know of.
18 Q. Nobody's ever compiled the area?
19 A. We've compiled the area of infestation.
20 Q. Okay. And how do you define in most recent
21 mapping infestation?
22 A. Well, infestation would be where you had a
23 melaleuca tree.
24 Q. Don't you have different gradients of
25 density in that infestation mapping?
555
1 A. Up to predominant, predominant and
2 dominant. You just described them.
3 Q. You use those terms?
4 A. No, sir, I don't use them. You do.
5 Q. Okay. Tell me what you use.
6 A. Infestation.
7 Q. In Loxahatchee.
8 And are there not gradients in your
9 infestation mapping?
10 A. Yes, sir, there are gradients in that map,
11 but I do not recall the terms on that map.
12 Q. That's what I was asking you. Thank you.
13 Okay. Going back to your proposed interim
14 regulation schedule and notice, Mr. Neely.
15 A. Okay.
16 Q. Still on the second paragraph defining the
17 problem.
18 A. Okay.
19 Q. "The minimum level to which water levels
20 are allowed to drop before no net discharge of water
21 occurs is 11 feet NGVD; this is one foot below the
22 lowest land elevation on the marsh and four feet
23 below the average marsh elevation."
24 What is the significance of that,
25 Mr. Neely?
556
1 A. Significance of that is that the water
2 level can go down to 11 feet which would be one feet
3 below, one foot below the lowest land elevation and
4 four feet below the general marsh elevation.
5 I don't understand what your question is.
6 The significance is there wouldn't be --
7 there would be drainage of the marsh.
8 Q. That was the question.
9 Okay. Next you describe the solution.
10 "The proposed interim regulation schedule will raise
11 the minimum level from the current 11 feet NGVD to 14
12 feet NGVD. In practice, this will mean when water
13 levels drop below 14 feet NGVD, no water will be
14 discharged from the refuge unless the quantity to be
15 discharged has been pumped into the refuge."
16 What is that going to mean to the marsh,
17 Mr. Neely?
18 A. That means that the marsh will stay wetter
19 longer.
20 Q. Okay. You're essentially raising the
21 minimum from 11 to 14 feet, correct?
22 A. Yes, sir, that's what it says here.
23 Q. And is that going to increase the area in
24 the south that's inundated all the time?
25 A. That's inundated all the time?
557
1 Q. Well, the flat area which you described to
2 me.
3 A. No, sir, I don't think it will increase it.
4 I think that it will keep water on it longer. I'm
5 not sure that it will increase the area.
6 Q. It won't increase the surface area that's
7 inundated for longer, store more water there?
8 A. Well, as opposed to going to 11 feet, it
9 will, it will keep water on more of it than it does
10 at, with 14 foot level than at 11 feet. At 11 feet
11 it would be drained. At 14 feet it will have water
12 on it.
13 Q. Okay. The next paragraph states, "The
14 proposed interim regulation schedule will allow a
15 maximum water level of 17.5 feet."
16 A. Yes, sir.
17 Q. Now, we're increasing that by a half a
18 foot, correct?
19 A. Yes, sir.
20 Q. What's that going to do to the marsh?
21 A. It will allow for deep water throughout the
22 marsh during wet years.
23 Q. And what does that mean?
24 A. And will -- well, the water will be deeper
25 during the wet years.
558
1 Q. What ecological or biological significance
2 does that have?
3 A. There are -- aquatic organisms will be able
4 to continue and flourish. The plants that are
5 normally found under those conditions will be able to
6 flourish if the water is clean and the woody
7 vegetation spread will be stemmed.
8 Q. And is this designed to inundate that
9 portion in the northern part of WCA-1 you told me
10 about, around 2,000 acres up there?
11 A. Yes, sir.
12 Q. Is this going to provide for sheetflow?
13 A. No, sir.
14 Q. Does the SWIM Plan provide for sheetflow
15 across Loxahatchee?
16 A. In a sense it does. It will provide for
17 sheetflow because water flows across the marsh from
18 the canal to the center when the water in the canal
19 is raised.
20 Q. Follows the topographic contours, doesn't
21 it?
22 A. If the water in the center is lower than
23 the water in the canal. Not necessarily topographic
24 contour, but the water level's what determines
25 whether water runs from the canal or to the canal.
559
1 Q. The end of that paragraph it says, "This
2 will also provide water supply benefits by increasing
3 by 73,000 acre feet the storage in WCA-1 entering the
4 dry season."
5 What's the purpose of that? Where is that
6 water going to go?
7 A. I would imagine that that water supply
8 would be used by the urban area and agricultural area
9 and for water releases into Water Conservation
10 Area 2.
11 Q. Broward County?
12 A. Yes, sir. Water Conservation Area 2 is in
13 Broward County.
14 Q. Okay.
15 A. But not just Broward County.
16 Q. When do you anticipate this will be
17 implemented, this schedule?
18 A. I don't have control of that, Mr. Earl. I
19 anticipate, anticipated that it would have been done
20 two years ago.
21 Q. What's been the problem?
22 A. We've been waiting on the Corps of
23 Engineers to do their modeling and to hold their
24 public hearings and to put together their final
25 recommendation.
560
1 Q. Well, we've just gone through on this
2 exhibit the solution, the problems.
3 Does that accurately describe, as you
4 understand them, the problems with the current
5 regulation schedule?
6 A. Yes, sir.
7 Q. Okay.
8 A. In a very capsuled form.
9 Q. Okay. Are there others? Tell me about
10 them.
11 A. Other what?
12 Q. Problems with the current regulation
13 schedule that you haven't told me about.
14 A. No, other than it goes too low too often
15 and doesn't go high enough when it's high.
16 Q. Okay. Failure to go high enough. What, if
17 anything, has that done to the vegetation in the
18 Loxahatchee?
19 A. On the north end it's, it's caused an area
20 to be as depicted on their map on one of your early
21 exhibits, I don't remember the term they used, but --
22 Q. Figure 20?
23 A. Yeah.
24 Q. Overdrained?
25 A. Overdrained areas.
561
1 Q. Are those those areas along the canal L --
2 A. Not necessarily.
3 Q. -- 40 and L-7?
4 A. Not necessarily. Sometimes those areas can
5 be wet when the area on the north end of the refuge
6 isn't.
7 Q. But sometimes those areas are overdrained,
8 aren't they?
9 A. When the canal is real low.
10 Q. How low does the canal in your experience
11 have to get before those areas are overdrained along
12 L-40 and L-7?
13 A. To that elevation. And it varies all the
14 way from the north end of the refuge to the south
15 end. Whatever the land elevation is and whatever
16 construction debris might be left from previous, when
17 the canals were dug. There could be a four- to
18 six-inch mound of material there. There could be a
19 buildup of silt that has built the ground level up
20 there and hold the water back from those areas a
21 little bit.
22 Q. Have you done any surveying of that?
23 A. No, but I've observed it during periods of
24 water, when water levels were at proper, at a level
25 that I could tell water was running out of the marsh
562
1 or not running out of the marsh.
2 Q. Okay. So you say there's what, a berm, a
3 level of, a pile of material?
4 A. In some places.
5 Q. From construction?
6 A. Some of it's from construction. Some of
7 it's from silt deposition. Some of it's from
8 vegetative deposition because the vegetation along
9 the canals is much denser.
10 Q. Does that run along most of L-7 and L-40,
11 the northern portions?
12 A. Along L-40 I'd say the northern portion and
13 along L-7, probably there's different construction
14 used over there. Probably to some extent maybe the
15 entire length of L-7. I'd have to look. There's
16 gaps in it. It's not a single straight berm or
17 anything. There's a lot of gaps in it.
18 Q. So in L-7 the entire length there's, with
19 gaps in it there's a berm and L-40 it's mostly the
20 berm portion is up in the northern?
21 A. Well, it's got gaps in it, too. There's
22 gaps in and out of there.
23 Q. But L-40 the berm is mostly in the north,
24 northern section.
25 A. I'd say it's in the top three-quarters of
563
1 the canal. It's not, it doesn't go all the way to
2 the south end.
3 Q. Okay. How many miles would that run along
4 L-40, approximately, from the top?
5 A. Where is figure 20?
6 Q. Right here, sir.
7 (Thereupon, the document was handed
8 to the witness.)
9 A. Well, I'd say 15, 16, roughly.
10 Q. Miles?
11 A. Um-hum.
12 THE COURT REPORTER: Yes?
13 THE WITNESS: Yes, from the, from the north
14 end to the south.
15 BY MR. EARL:
16 Q. And you say it runs along the whole length
17 of L-40?
18 How long would that be?
19 A. No. I was talking about --
20 Q. I'm sorry, I'm sorry. L-40 you were
21 talking about.
22 A. Right.
23 MS. PONZOLI: With the gaps.
24 THE WITNESS: Yeah.
564
1 BY MR. EARL:
2 Q. Yeah, I understand.
3 A. It's not a solid berm or anything. There's
4 a lot of gaps in it.
5 And along the L-7 probably from the north
6 end, oh, 12 miles, I'd estimate.
7 Q. Okay. As I understand your testimony, this
8 comes from construction debris berms, it comes from
9 siltation buildup, and it comes from buildup of
10 vegetative matter?
11 A. Yes, sir.
12 Q. Okay. And the effect of that has been to
13 block the water from going in the marsh?
14 A. Yes, sir, in some, some instances.
15 Q. Okay. Has that exacerbated the problems
16 when you have low water levels?
17 A. No, sir.
18 Q. Explain that to me. I don't understand.
19 A. Well, the berm's there. When the canal
20 level goes down low, that berm tends to hold water in
21 the marsh and not let it drain real quick.
22 Q. Okay. Do you view that as a plus or minus?
23 A. I'd view that as a plus.
24 Q. Plus, holding the water in. Okay.
25 A. Because that's clean water.
565
1 Q. But there are gaps which allow water to get
2 in and out, correct?
3 A. Yes, sir.
4 Q. Okay. Are you familiar with the term
5 subsidence valleys?
6 A. I'm familiar with the term subsidence. I
7 don't know what you mean by subsidence valleys.
8 Q. Never heard of the term?
9 A. Not that I can recall. I may have read it
10 in some document, but it didn't impress me.
11 Q. What is your understanding of the
12 subsidence resulting from the construction of L-7 and
13 L-40, for example?
14 A. I don't know of any influence that it might
15 have had.
16 I would think compaction would be the term
17 I would use where heavy equipment may have been along
18 the edges of the canal.
19 I don't know how much subsidence took place
20 during construction of the L-7 and the L-40.
21 Q. You said there were two different
22 construction methods.
23 Did they dredge those? How were those
24 built?
25 A. A floating dredge, a floating -- actually
566
1 it was a floating dipper type thing as opposed to a
2 suction dredge. It was not a suction dredge. It was
3 a dipper type floating dragline, for example. And
4 they also used heavy equipment to push some of the
5 material. On the west side particularly along the
6 L-7 material probably had to be transferred more than
7 once from...
8 Q. So that was done in a dewatered state over
9 in L-7? They worked in the dry over there?
10 A. I think they worked in the dry on the whole
11 thing with the exception of the canal.
12 Q. Given the existence of these berms with the
13 gaps, the area has still been overdrained, has it
14 not, on the perimeter of these canals?
15 A. To some extent I would say.
16 Q. Okay. To what extent would you say?
17 A. Well, when the canal level would go down,
18 those areas adjacent to the canal would be drained
19 quicker than the center of the refuge. So those
20 areas would be, quote, if you compare them to the
21 center of the refuge, overdrained.
22 Q. And has that had on effect on the
23 vegetation?
24 A. Along with other influences.
25 MR. EARL: Off the record.
567
1 (Discussion held off the record.)
2 MR. EARL: Let's take a break for the
3 rest room.
4 (Thereupon, a recess was taken from
5 12:25 p.m., until 12:30 p.m.)
6 BY MR. EARL:
7 Q. Back on the record.
8 Would you go to page 122, please, in
9 Exhibit 17.
10 You've reviewed this before, Mr. Neely,
11 this document?
12 A. Yes, sir. It's been quite some time,
13 though.
14 Q. Um-hum.
15 The bottom paragraph --
16 A. Um-hum.
17 Q. -- on page 122 states, "Enclosure of WCA-1
18 by levees and canals has eliminated historical
19 sheetflow patterns within the refuge."
20 Do you agree with that?
21 A. Historical sheetflow, yes.
22 Q. Okay. Goes on to say, "Dramatically
23 altering the hydroperiod characteristics of certain
24 areas of the marsh."
25 Do you agree with that?
568
1 A. Yes, sir.
2 Q. Next sentence states, "Impoundment of the
3 southern, lower elevations of WCA-1 has left this
4 area flooded for long periods of time, while allowing
5 more frequent drying of the extreme northern portion
6 of the marsh."
7 Do you agree with that?
8 A. Yes, sir.
9 Q. Next states, "Areas which have experienced
10 shortened hydroperiods have experienced vegetation
11 shifts to woody vegetation (wax myrtle and willow)
12 while the lower elevations have experienced shifts to
13 more aquatic flora."
14 Do you agree with that?
15 A. Yes, sir.
16 Q. The last paragraph on that page states,
17 "Analysis of vegetative patterns in the early 1970s
18 indicated that plant communities that were located at
19 ground elevations below 14.0 NGVD experienced
20 conversion to aquatic habitats."
21 Do you agree with that?
22 A. Not totally.
23 Q. Why not?
24 A. Because the elevation that was used -- let
25 me look here real quick and see.
569
1 There appears to be some 14 foot elevations
2 in the center and other places that have not gone to
3 full aquatic flora.
4 Q. Okay.
5 A. Generally speaking, that statement, I
6 interpret that statement to be a general statement,
7 and generally that's what happened, but not totally.
8 Q. Okay. Applying to the southern end of
9 Loxahatchee, correct?
10 A. Well, even that, I don't totally agree with
11 that that it's gone to a total aquatic habitat.
12 Q. What's happened down there?
13 A. Well, there's been times that some of it is
14 aquatic and some of it is still marsh.
15 Q. How much of the area has shifted to aquatic
16 vegetation?
17 A. I don't know. I'd have, I would have to
18 look at a map to make an estimate of that.
19 Q. You have no idea?
20 A. Not without looking at something I could
21 definitively make an estimate from.
22 Q. Well, based on the contours you have before
23 you there on page 123, how much of that area below
24 14 feet has shifted to aquatic vegetation?
25 A. How much of what area?
570
1 Q. There in the south of the marsh below
2 14 foot NGVD.
3 A. Are you meaning this area right from here
4 to -- there's 14 --
5 Q. I mean the areas below the 14 foot contour
6 in the southern end.
7 A. Let me find the 14 foot contour here.
8 14.0.
9 That's right about right there through
10 there.
11 MS. PONZOLI: It says 13.5, doesn't it?
12 THE WITNESS: 14.0 is right there in that
13 wad of stuff.
14 I would say that probably 75, 80 percent of
15 that maybe.
16 BY MR. EARL:
17 Q. 75, 80 percent has shifted to aquatic
18 vegetation?
19 A. In that area we just described.
20 Q. And what would be your estimate of the
21 land, the spatial acreage of that?
22 A. I don't have anything to go on. I
23 couldn't, couldn't estimate it. I could guess at it
24 but couldn't estimate it --
25 MS. PONZOLI: Don't.
571
1 THE WITNESS: -- because I have nothing for
2 reference.
3 BY MR. EARL:
4 Q. Well, you know it's 75 to 80 percent,
5 though, of that area below the 14 foot contour.
6 A. Below the 14 foot contour.
7 Q. Okay. And what was that area, if you know,
8 before the levees were built and the structures were,
9 before it was impounded?
10 A. Some of it was sawgrass, some of it was wet
11 prairie, and I would imagine there was some open
12 water in that area, some deeper areas.
13 It's a, it's a very irregular -- as you can
14 see, the contours are rather steep there.
15 Q. Based on your knowledge of the history of
16 Loxahatchee, what before the impoundment had been --
17 completion of the project, what percent of that area
18 below the 14 foot contour in the south would have
19 been in aquatic vegetation?
20 A. Well, that's difficult to estimate because
21 I haven't gone back and thoroughly reviewed the
22 literature as to how they regulated the Hillsboro
23 Canal which was the primary drain of that area. And
24 it would depend on what the regulation of the
25 Hillsboro Canal.
572
1 And my best recollection there was a lock
2 at the south end, and I would imagine that the
3 aquatic areas came and went in there depending on the
4 water levels.
5 Q. Do you have any estimate?
6 A. No, sir.
7 Q. All right. Was it predominantly aquatic?
8 A. I don't know, sir.
9 Q. Your answer is you don't know?
10 A. The answer is I do not know.
11 Q. Okay.
12 Now, that sentence at the bottom of the
13 page goes on to say over on to page 125, "Resulting
14 in an increase in the abundance and distribution of
15 several nuisance species such as hydrilla, water
16 lettuce, water hyacinth and cattail."
17 Do you agree with that?
18 A. Not totally.
19 Q. Why not?
20 A. Because I don't think that all of that
21 increase in those, in those species was a result
22 strictly of hydroperiod.
23 Q. Well, how do you break it out which was the
24 result of hydroperiod?
25 A. I don't know.
573
1 Q. You're not going to offer any opinions on
2 that?
3 A. No, sir.
4 Q. Some of it was hydroperiod, is that your
5 testimony?
6 A. Well, I'm sure that the hydrilla which has
7 to have standing water would be dependent on
8 hydroperiod.
9 Q. How about water lettuce?
10 A. Water lettuce is a floating plant. That
11 probably would.
12 Q. Water hyacinth?
13 A. In shallow, it could survive in shallow
14 water in there and grow on damp soil. It wouldn't
15 have to be in standing water. So it would depend on
16 hydroperiod, some of it.
17 Q. All right. How about cattail?
18 A. Cattail is not generally a floating type
19 plant or a deep water plant except under very unusual
20 circumstances.
21 Q. Any of the cattail in that south end of the
22 Loxahatchee result from anything other than EAA
23 nutrients?
24 A. Probably.
25 Q. From what, sir?
574
1 A. Well, some could be from, from alligator
2 disturbance of the soil. Around alligator holes you
3 find cattail. Around bird rookeries you find cattail
4 as a result of the nutrients.
5 Q. Anything else?
6 A. Other nutrients?
7 Q. No, anything other than nutrients was the
8 question.
9 A. That caused the cattail.
10 Q. Yes.
11 A. No, sir.
12 Q. Construction disturbance in your judgment
13 had nothing to do with cattails down there?
14 A. I don't think so.
15 Q. What do you base that on?
16 A. On reviewing some old aerial photos that
17 showed the area during and after -- before and after
18 construction when there wasn't any cattails there.
19 Q. What date are those aerials?
20 A. Some of them date far back as the forties,
21 if I remember correctly.
22 Q. Which ones are you relying on? What dates?
23 A. All of them in general, all of them that
24 were available.
25 Q. Okay. Which ones before and which ones
575
1 after? When was construction done down there?
2 A. The levee was complete in 1959 or early
3 '60. I don't know, remember when the levee was
4 closed, but I'd say during, the construction was
5 during the late fifties along the south end of the
6 refuge. I don't know the exact date for each segment
7 of the levee, but the levee was closed for the refuge
8 1959 or early 1960.
9 Q. Who has possession of these aerials?
10 A. The photo center in Sioux Falls, Idaho,
11 does. They are available to anybody. That's a
12 catalog warehouse for all aerial photography.
13 Q. I'm asking you the ones you personally
14 looked at.
15 A. The ones I personally looked at, we have
16 some at the refuge, some at the Water Management
17 District.
18 Q. Where else?
19 A. Sir?
20 Q. Where else? Some at refuge, some at Water
21 Management.
22 A. That's all.
23 Q. Where are they at the refuge?
24 A. We have negatives. They are in the,
25 they're -- you mean what room are they in or what
576
1 cabinet are they in?
2 Q. Yes.
3 MS. PONZOLI: Were they produced,
4 Mr. Neely?
5 THE WITNESS: I don't know.
6 BY MR. EARL:
7 Q. Where are they, the ones you're relying on
8 for your opinion?
9 A. They were at the refuge in the office, in
10 the administrative building.
11 Q. How far do these go back, the ones you
12 looked at at the refuge?
13 A. If I recall correctly, in the forties. I
14 can't be specific. I'd have to look at the negative.
15 Q. Okay. And when --
16 A. These are in, these are -- some of them are
17 in negative form.
18 Q. When did you first see the cattails appear
19 in the south end of Loxahatchee?
20 MS. PONZOLI: Object to form.
21 THE WITNESS: I do not --
22 MS. PONZOLI: Do you mean in the
23 photographs, Mr. Earl?
24 MR. EARL: Yes.
25 THE WITNESS: I couldn't specifically say
577
1 without going back to the photographs and
2 identifying when the cattails started.
3 BY MR. EARL:
4 Q. Generally when? In the seventies,
5 eighties?
6 MS. PONZOLI: Object to the form. He
7 answered.
8 THE WITNESS: I do not know, Mr. Earl.
9 BY MR. EARL:
10 Q. So I'd have to take you through the
11 photographs to find out?
12 A. Yes, sir, it would take me a little bit of
13 research to come up with that answer.
14 MS. PONZOLI: Mr. Earl, I sincerely believe
15 these photos were all produced to you
16 previously.
17 BY MR. EARL:
18 Q. And it's your testimony that hydroperiod
19 had nothing to do with the cattails there, correct?
20 A. No, sir, I didn't testify to that, did I?
21 Q. Well, you tell me. What is your testimony?
22 What role did hydroperiod play in the cattails at the
23 south end of Loxahatchee?
24 A. I would say that it's not the causative
25 factor, but it has influenced either the growth or
578
1 the spread by transporting nutrients deeper into the
2 marsh as the hydroperiod rose.
3 Q. Why did the hydroperiod rose?
4 A. When the pumps are running, the water goes
5 up.
6 Q. Okay. You're talking about the water
7 level, not the hydroperiod then.
8 A. Right.
9 Q. Has hydroperiod played any other role as to
10 those cattails?
11 A. As to cattail? I don't think so.
12 Q. Is that your opinion as a biologist as we
13 sit here?
14 A. That it, that hydroperiod has not
15 influenced the cattail?
16 Q. Yes.
17 A. I'd say that hydroperiod since -- and you
18 start getting into whether we're talking hydroperiod
19 or water levels. The deeper water down there has
20 caused cattail to do something a little unusual in
21 that there are floating mats of cattail.
22 Q. And what significance does that have in
23 terms of the propagation of cattail?
24 A. It can expand through rhizomes as opposed
25 to seeds.
579
1 Q. Direct your attention to 125, sir.
2 A. Okay.
3 Q. The last sentence in that first paragraph
4 states, "Marsh elevations above 14.0 NGVD --" are you
5 with me?
6 A. Yes, sir.
7 Q. Okay.
8 "-- comprised about 75 percent of the
9 refuge."
10 Do you agree with that?
11 A. I have to go back here just a minute and
12 see where we're talking about.
13 No, sir, I don't agree with that.
14 Q. Okay. Marsh elevations above 14 NGVD
15 comprised about what percentage of the marsh, as you
16 understand it, of the refuge?
17 MS. PONZOLI: I think it's been asked and
18 answered. I object.
19 THE WITNESS: Above 14? Of the -- what's
20 your question now?
21 BY MR. EARL:
22 Q. You said you disagreed, Mr. Neely, that
23 marsh elevations above 14 NGVD comprise about 75
24 percent of the refuge.
25 I'm asking you what percent of the refuge
580
1 if you disagree with 75 percent, what percentage of
2 the refuge is comprised of elevations above 14.0
3 NGVD?
4 A. Okay. Of the refuge now includes all the
5 areas outside the L-40 and the L-7 levees, right?
6 Q. Okay. Let's start that way.
7 A. And the levees within, the levees are
8 within the refuge boundary?
9 Q. Let's just talk about the conservation area
10 inside the levees.
11 A. Water Conservation Area Number 1?
12 Q. Okay.
13 A. Inside the levees?
14 I would say probably a little higher than
15 that. Maybe 80 percent.
16 Q. Are above, is above 14 NGVD. Okay.
17 A. Could be a little higher than that, but I'm
18 making an estimate off of this map.
19 Q. Okay. That sentence goes on to say, "And
20 represented the most important sectors of the marsh
21 for utilization by Everglades wildlife."
22 Do you agree with that?
23 A. That the marsh elevations above 14 -- no, I
24 wouldn't totally agree with that either because
25 wildlife uses the areas below 14 also.
581
1 Q. Which is most important?
2 A. Which of what, sir?
3 Q. Why do you disagree with this? They say,
4 "The most important sectors of the marsh for
5 utilization by Everglades wildlife."
6 Why is that wrong?
7 A. I just don't agree with it, sir.
8 And the marsh elevations below 14 feet that
9 could have standing water on them could serve as
10 wintering areas for water foul which are important,
11 for other migratory birds which are important, even
12 for, in some areas maybe snailkites might utilize
13 those areas below 14 feet.
14 Q. As a refuge manager and a biologist are you
15 able to characterize which of the areas either above
16 or below 14 feet NGVD are most important for
17 wildlife?
18 A. When we look at the refuge and we look at
19 the areas above, if we look at the areas above 14
20 feet, no, I couldn't distinguish because you're
21 talking about wildlife in general and some of the
22 areas are more important to one species maybe than to
23 the other.
24 Q. Okay. Sentence goes on, the next sentence
25 says, "These areas were characterized as wet
582
1 prairies, tree island and sawgrass-mixed habitat."
2 Is that how the area above 14 foot NGVD is
3 characterized?
4 A. In 1972 it was.
5 Q. Okay. How is it characterized now?
6 A. Above -- well, to start with, I don't think
7 they have, they did not have this topographic map in
8 1972. They used another topographic map that was
9 completely different from this.
10 Q. Okay.
11 A. So I would have to see that topographic map
12 to make that determination.
13 Q. But in your questions (sic) you've been
14 using that topo map identified on page 123.
15 A. I used that to respond to your questions,
16 yes, sir.
17 Q. And I took it in that context.
18 The next paragraph states, "A narrow swath
19 of disturbed vegetation extends around the perimeter
20 of the refuge."
21 Do you agree with that?
22 A. Yes, sir.
23 Q. And what does that narrow swath of
24 disturbed vegetation consist of?
25 A. Phragmites, cattail, willow, herbaceous
583
1 growth such as flag, smartweed, water hyacinth,
2 pennywort.
3 Q. And what has caused that narrow swath of
4 disturbed vegetation?
5 A. A couple of three things. One is the water
6 quality.
7 Q. Um-hum. What else?
8 A. Another one would be the fact that that
9 area could be overdrained at times.
10 Q. And what else? You said three things.
11 A. I said a couple of three. Let me think if
12 there's anything else here.
13 Water, water level as opposed to length of
14 dry hydroperiod.
15 Q. And what would water level do?
16 A. Well, it would cause nutrients to flow
17 through that area if the water in the canal was
18 higher than the water in the marsh on the other side.
19 Q. Okay. It says, "This disturbed vegetation
20 includes giant cane."
21 Is that still in the perimeter? Do you see
22 giant cane there?
23 A. Yes, sir, phragmites.
24 Q. Okay. What causes phragmites in your
25 judgment?
584
1 A. I think phragmites is influenced by sodium.
2 Q. Okay. Influenced by sodium.
3 What causes it to be there?
4 A. In the disturbed area of the refuge?
5 Q. Causative factor around the perimeter, yes,
6 sir.
7 A. Probably water quality.
8 Q. And to where do you attribute that?
9 A. Well, we don't have it anywhere in the
10 interior.
11 Q. Okay. Is that the result of canals, for
12 example, get higher sodium levels?
13 MS. PONZOLI: Object to form.
14 THE WITNESS: No, sir. I think it's the
15 result of water quality.
16 BY MR. EARL:
17 Q. Well, that's what we're talking about, in
18 the canals.
19 A. Yes, sir.
20 MS. PONZOLI: Object to form. I don't
21 think the canals, I don't think either one of
22 you mean the canals are creating the water
23 quality, unless you do, and then you should say
24 so.
585
1 BY MR. EARL:
2 Q. What's the cause of elevated -- are you
3 saying there's elevated sodium in the water?
4 A. I have not -- based on some of the work in
5 work order 32, I think that I remember the sodium
6 levels being higher based on specific conductivity.
7 Q. Okay. And what do you attribute that to?
8 A. What do I attribute?
9 Q. The elevated sodium.
10 A. As poor water quality coming in.
11 Q. What's the cause of that?
12 A. The water was, was not good water quality
13 when it was pumped into the refuge.
14 Q. Okay. And how did the sodium get elevated?
15 A. It could have come from any number of
16 methods. Could come through when you have sodium
17 pockets and salt domes throughout the agricultural
18 area.
19 Q. Connated water?
20 A. Sir?
21 Q. Connated water?
22 A. I guess that's what you call it.
23 But there are salt domes that are evident
24 in some of the fields throughout the EAA. They can't
25 grow crops on it sometimes. And you also have the
586
1 canals that were dug very deep have sodium in them.
2 Some of the agricultural fertilizers and stuff has
3 sodium in it.
4 Q. So the canals were dug deep.
5 The deepest canals out there would be the
6 primary canals of the district?
7 A. Yes, sir, the four primary canals. They
8 could have struck some salt deposits or salt water.
9 Q. Okay. And then you say fertilizers?
10 A. Yes, sir. I think there's some fertilizers
11 that have sodium in them.
12 Q. Anything else?
13 A. Not that I can think of.
14 Q. Okay. Anybody done an evaluation of that
15 attributing it to the EAA specifically?
16 A. No, sir.
17 Q. Is anything going on in that regard?
18 A. Other than the evaluation of water quality,
19 the water quality evaluations, and I don't know what
20 parameters the Water Management District's looking
21 at.
22 Q. No. I'm asking you if Loxahatchee or any
23 federal --
24 A. Oh. You said anybody.
25 Q. -- agency to your knowledge is doing any
587
1 analysis.
2 A. Well, we're doing water quality evaluations
3 in conjunction with that that Mr. Davis is doing for
4 the League.
5 Q. I know about that.
6 Anything else?
7 A. Not that I know of.
8 Q. Is FIU doing anything?
9 A. On -- FIU?
10 Q. Sodium, attributing sodium --
11 A. Independent --
12 Q. -- back to the EAA.
13 A. Independently of the refuge?
14 Q. In any context.
15 A. For the refuge. They're, they're doing
16 some analysis of the water quality for us, the
17 samples that we take concurrently with Mr. Davis.
18 Q. That's Dr. Jones?
19 A. It's FIU you asked.
20 Q. Is it Dr. Jones?
21 A. I don't know who specifically in the lab
22 does it.
23 Q. Okay. Has hydroperiod had any impact on
24 the giant cane in the narrow swath of disturbed
25 vegetation?
588
1 A. I don't think so. I don't know. That's my
2 question -- my answer. I don't know.
3 Q. Okay. We've already talked about willow,
4 correct? And that is from hydroperiod, correct?
5 A. Well, willow's influenced by water quality
6 also.
7 Q. Okay. Well, tell me. We're going to go
8 through them then. Let's talk about willow.
9 What's the cause of the willow in the
10 narrow swath of disturbed vegetation extending around
11 the perimeter of the refuge?
12 A. Well, first, I don't agree with the term
13 narrow swath. It can be up to a mile, a mile and a
14 half wide around the refuge, if that's considered
15 narrow. Sometimes less than that, much less.
16 Willow by hydroperiod can become
17 established because of the soil or the peat is
18 exposed and the nutrients -- some of the work order
19 32 data indicates that you find willow where you have
20 both high phosphorus and high nitrogen.
21 Q. And that comes from what, oxidation,
22 exposure of the peat, did you say?
23 A. No, sir, I didn't say exposure of the peat
24 at all.
25 MR. EARL: Would you read back his answer
589
1 from the beginning, please?
2 (Thereupon, a portion of the record
3 was read by the reporter.)
4 BY MR. EARL:
5 Q. Now, do you remember now saying peat is
6 exposed?
7 A. Yes, sir. But that's not what you asked
8 me. You asked me about oxidation the second time.
9 Q. Okay. Well, tell me how peat being exposed
10 brings willow.
11 A. It allows for a seed bed. Willow shoots
12 can't generate like melaleuca can generate in deep
13 standing water. They have to have some substrate to
14 anchor on and become established. And the willow
15 will grow in standing water, but it will not
16 generally take root or establish in standing water.
17 Q. Do you mean to say that you know that area
18 L-7 and L-40 has not, none of that area along the
19 canal has oxidized?
20 A. No, sir, I didn't say that. I haven't been
21 asked a question about oxidation.
22 Q. Well, I'm asking you now. Has any of that
23 area oxidized to your knowledge?
24 A. I would imagine that it did particularly
25 during the fire along the L-7.
590
1 Q. I'm talking about the perimeter along the
2 canal.
3 A. Yes, sir, I'm talking about the perimeter
4 along the L-7 canal.
5 Q. Okay.
6 A. Yes, there was oxidation during the fire.
7 And I would imagine that during -- I can't, I can't
8 give you an answer as to how much oxidation, but when
9 the area's exposed for long periods such as the
10 '89-'90 drought, yes, there probably was some
11 oxidation, certainly some compaction.
12 Q. And apart from the fire, was there also
13 oxidation along that canal, the northern portion?
14 A. I can't testify to that.
15 Q. Okay. What else caused the willow to be
16 there?
17 A. Well, I mentioned the nutrients, that
18 willow is generally, is indicated in work order 32 to
19 be found in high incidences of both high nitrogen and
20 high phosphorus.
21 Q. Okay. Is your opinion that the nutrients
22 from the EAA have caused willow to propagate along
23 the canal in this swath of disturbed vegetation?
24 A. No, sir, the nutrients in the L-7 or the
25 L-40 canal are the things that had caused it.
591
1 Q. Okay. Is that the primary causative factor
2 in your opinion, nutrients?
3 A. For willow.
4 Q. Yes, sir.
5 A. I would say it would have to be both
6 combination of hydroperiod and nutrients because of
7 the way willow has to get started.
8 Q. What is the primary? Is there a primary
9 factor? Are they both equal?
10 A. No. If there were no nutrients, the willow
11 couldn't grow, I wouldn't think, if it was absent of
12 nutrients.
13 Q. Okay.
14 MS. PONZOLI: Mr. Earl, I think it's one
15 o'clock. We agreed to take lunch now, so --
16 MR. EARL: Let me just finish.
17 MS. PONZOLI: -- if you'd like to finish
18 whatever line you're doing.
19 MR. EARL: Yes.
20 BY MR. EARL:
21 Q. Are elevated levels of nutrients causing
22 those willows along the perimeter canals?
23 MS. PONZOLI: Asked and answered.
24 MR. EARL: No, he just gave me a qualifying
25 answer.
592
1 MS. PONZOLI: If that's the only answer he
2 can give you, Mr. Earl, that's the only answer
3 he can give you. He doesn't have to give you
4 the answer you want.
5 MR. EARL: He didn't say that; you said it,
6 counsel. Let him answer the question.
7 THE WITNESS: Would you read the question
8 back, please?
9 BY MR. EARL:
10 Q. I'll even restate it.
11 You told me that the willows wouldn't grow
12 without nutrients.
13 Now I'm asking you -- and I think that's
14 good, sound logic, Mr. Neely.
15 My question is are excess nutrients the
16 primary causative factor for willows being in the
17 disturbed vegetation area around these canals?
18 MS. PONZOLI: And I thought that was asked
19 and answered.
20 MR. EARL: No, ma'am.
21 MS. PONZOLI: I'm not instructing him not
22 to answer, Mr. Earl.
23 THE WITNESS: The primary causative factor,
24 I could not answer that without more, looking at
25 more studies to see what the primary causative
593
1 factor is. I don't think that's ever been
2 determined.
3 BY MR. EARL:
4 Q. So you don't have an opinion on that right
5 now?
6 A. I would say that hydroperiod and nutrients
7 are the two primary causative factors.
8 Q. But you have no opinion at this time as to --
9 A. As to which one it is, no.
10 MR. EARL: Okay. Why don't we break then.
11 (Thereupon, a luncheon recess was taken
12 from 1:03 p.m., until 2:00 p.m.)
13 - - -
594
1 DIVISION OF ADMINISTRATIVE HEARINGS
2 DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA
3 SUGAR CANE GROWERS COOPERATIVE )
OF FLORIDA; ROTH FARMS, INC.; )
4 and WEDGWORTH FARMS, )
Petitioners, )
5 V ) DOAH Case No. 92-3038
SOUTH FLORIDA WATER MANAGEMENT )
6 DISTRICT, an agency of the State)
of Florida, et al., )
7 Respondents. )
FLORIDA SUGAR CANE LEAGUE, INC.;)
8 UNITED STATES SUGAR CORPORATION;)
and NEW HOPE SOUTH, INC., )
9 Petitioners, ) DOAH Case No. 92-3039
V )
10 SOUTH FLORIDA WATER MANAGEMENT )
DISTRICT, an agency of the State)
11 of Florida; et al., )
Respondents. )
12 FLORIDA FRUIT AND VEGETABLE )
ASSOCIATION; LEWIS POPE FARMS; )
13 W. E. SCHLECHTER & SONS, INC., )
and HUNDLEY FARMS, INC., )
14 Petitioners, ) DOAH Case No. 92-3040
V )
15 SOUTH FLORIDA WATER MANAGEMENT )
DISTRICT, an agency of the State)
16 of Florida, et al., )
Respondents. )
17
VOLUME V (Afternoon Session)
18 Deposition of Burkett S. Neely, Jr.
19
Taken before Marianne Martini Holmes,
20 Registered Professional Reporter and Notary Public in
and for the State of Florida at large, pursuant to
21 notice of taking deposition filed by the Petitioners
in the above cause.
22 - - -
23 Tuesday, February 22, 1994
319 Clematis Street
24 West Palm Beach, Florida 33401
9:16 - 5:10 p.m.
595
1 APPEARANCES:
2
3 On behalf of the Petitioners Florida Sugar Cane
4 Leage, Inc., United States Sugar Corporation, and
5 New Hope South, Inc.:
6 Earl, Blank, Kavanaugh & Stotts, P.A.
7 One Biscayne Tower
8 Suite 3636
9 Two South Biscayne Boulevard
10 Miami, Florida 33131
11 By: WILLIAM L. EARL, ESQUIRE
12
13 On behalf the Petitioners Sugar Cane Growers
14 Cooperative of Florida, Roth Farms, Inc., and
15 Wedgworth Farms:
16 Hopping, Boyd, Green & Sams
17 123 South Calhoun Street
18 Tallahassee, Florida 32314
19 By: ROBERT P. SMITH, JR., ESQUIRE
596
1 APPEARANCES: (Continued)
2 On behalf of the Intervenor, United States of America:
3 Department of Justice
4 99 Northeast 4th Street
5 Miami, Florida 33132
6 By: SUZAN HILL PONZOLI,
7 Assistant United States Attorney
8
9 - - -
10 I N D E X
11 - - -
12
13 WITNESS: DIRECT CROSS REDIRECT RECROSS
14 BURKETT S. NEELY, JR. (Continued)
15
By Mr. Earl 598
16 By Mr. Smith 719
17
18 - - -
19 E X H I B I T S
20 - - -
21
22 NUMBER PAGE NO.
23 NEELY EXB. NO. 20 604
NEELY EXB. NO. 21 655
24 NEELY EXB. NO. 22 699
NEELY EXB. NO. 23 710
25
597
1
598
1 A F T E R N O O N S E S S I O N
2 - - -
3 CONTINUED DIRECT (Burkett S. Neely, Jr.)
4 BY MR. EARL:
5 Q. Okay. Back on the record.
6 Mr. Neely, page 124, you see the vegetative
7 map?
8 A. Yes, sir.
9 Q. What is that map, as you understand it?
10 A. That's a map that someone drew that tries
11 to classify the vegetation by zones. I don't know
12 the origin of it or who did it or -- I've seen it at
13 the refuge before. So I'm not sure whose that is nor
14 when it was done, though, and what basis the data was
15 collected on.
16 Q. To your knowledge does it accurately depict
17 the vegetation in the Loxahatchee?
18 A. I don't think that it does accurately.
19 Q. Okay. Do you understand this was supposed
20 to depict it in 1972?
21 A. That's what I was looking to try to see
22 where it referenced it and see what year it was.
23 Q. Okay.
24 A. I don't know.
25 Is there some reference to it, Mr. Earl?
599
1 Q. Yes, there is, the top of page 125.
2 A. Okay.
3 Q. Actually, the bottom of page 122 they talk
4 about analysis of vegetative patterns in the early
5 1970s U.S. Fish and Wildlife Service 1972.
6 A. Okay. I think that's probably the same
7 evaluation 'cause it does reference it at the bottom
8 of the top -- bottom of the top paragraph on 125
9 also.
10 Q. Okay.
11 A. So that was based on 1972 data.
12 Q. In your understanding of the history of
13 Loxahatchee does that accurately depict what was
14 there in 1972?
15 A. I cannot say that it accurately depicts it.
16 Q. Why is that?
17 A. Well, I just don't recall seeing these,
18 these bands of vegetation the way they depict them
19 here. This configuration I just, I don't know on
20 what basis that was drawn on and it just doesn't
21 agree with what I've seen on the ground or from the
22 air.
23 Q. And the earliest you were there was about
24 nine years later, wasn't it, 1981?
25 A. Um-hum.
600
1 Q. You didn't see it in 1972, did you?
2 A. No, sir.
3 Q. Let's go back to page 125, if we can.
4 When we broke for lunch, you were
5 describing the causes of the swath of disturbed
6 vegetation to various species. We talked about
7 willow.
8 Let's talk about herbaceous growths such as
9 flag and smartweed.
10 What --
11 A. Okay.
12 Q. -- in your judgment causes them to be
13 located in that disturbed area?
14 A. Well, smartweed would primarily be
15 initiated when water was drawn off the peat and you
16 had exposed peat or moist soil because it doesn't
17 grow in standing water until it -- unless it's grown
18 and then water comes on it. It doesn't initiate in
19 standing water.
20 And the flag probably the same type of
21 situation.
22 However, we don't have vast stands of
23 either flag or smartweed in the interior, so I would,
24 I would also make the assumption as I did with
25 willow, that it's not just hydroperiod, but it is
601
1 also nutrients.
2 Q. And what do you base that on? Any data?
3 A. On personal observation that in the center
4 of the refuge in some of the wet prairies when they
5 go dry we don't get vast stands of smartweed like we
6 do along the edge nor flag.
7 Q. Is it shortened hydroperiod or drainage
8 which allows these herbaceous growths to invade?
9 A. Well, it's water levels more than
10 hydroperiod. I'd say that water levels change and
11 expose the areas along there and the hydroperiod is
12 disrupted or there's no water standing on the area
13 and it allows things like smartweed and flag and some
14 of the herbaceous growths and woody growths that come
15 in.
16 Q. Okay. Floating aquatic plants such as
17 water lettuce, water hyacinths and pennywort, what's
18 caused them to come into this disturbed area?
19 A. Again, the same thing, the fact that the --
20 well, water hyacinth and water lettuce you'll find in
21 there when you have water. That's generally a water,
22 floating water plant. And we don't have those in the
23 center of the refuge when we have water out there
24 either.
25 So, again, I would have to attribute both
602
1 the hyacinth and the lettuce to both the hydroperiod,
2 the fact that you would have water on an area and you
3 would have nutrients to support that.
4 Q. Do you have an opinion as to which would be
5 the primary factor?
6 A. Well, you got to have water for water
7 lettuce and water hyacinth. And we have water along
8 the edge of the canal and we have water in the center
9 of the refuge and we don't have hyacinth or water
10 lily -- or water lettuce in the center of the refuge,
11 so I'd have to say primarily it's because of
12 nutrients.
13 Q. Any data or studies you base that on other
14 than your observations?
15 A. Not that I can recall specifically,
16 Mr. Earl.
17 Q. The next paragraph on page 127, sir.
18 A. Okay, sir.
19 Q. I'm on the second full paragraph, starts
20 out, "In 1972 --"
21 A. Um-hum.
22 Q. "-- the U.S. Fish and Wildlife Service
23 issued a report concerning a possible revision of the
24 water regulation schedule for WCA-1. This report
25 contained an analysis of the area's topography and
603
1 vegetation patterns present on the refuge.
2 Vegetation lying below 14.0 foot MSL (NGVD) were
3 identified as having the most profound changes;
4 namely conversion to aquatic habitat."
5 Do you disagree with that statement?
6 A. Yes, sir, as I did awhile ago.
7 Q. What is that? Why?
8 A. That the -- well, as it is currently I
9 disagree with that.
10 The fact that in 1972 they did not use the
11 topographic map listed as figure 21, they were using
12 another topographic map that had been generated, and
13 the fact that they talk about water lily. We have
14 water lily all over the refuge and have had and, as a
15 matter of fact, that's the basis of the peat for
16 Loxahatchee is white water lily.
17 Q. So the Fish and Wildlife Service, was that
18 the best available topographic data in 1972?
19 A. Yes, sir, probably.
20 Q. But you think they were wrong?
21 A. I think the topographic -- I know the
22 topographic data was wrong 'cause it wasn't done
23 with, it wasn't compiled with a lot of data and it's
24 tremendously different from this figure 21.
25 Q. Were they also wrong in their association
604
1 of increase in the cattail zone?
2 A. I don't see a reference to cattail in that
3 paragraph.
4 Q. That's the indented paragraph below.
5 A. Okay. Let me read the paragraph (reviewing
6 the document).
7 Yes, sir, I would say that based on data
8 that we have now that they probably did not associate
9 that change with nutrients at that particular early
10 stage.
11 Q. And what data is that you're relying on?
12 A. Data that had been gathered during work
13 order 32 and data that was gathered by, recently by
14 Mr. Davis and by our staff and all the research data
15 that shows that --
16 Q. Dr. Davis, John Davis?
17 A. Yes.
18 -- that shows nutrient gradients from the
19 edge to the center and particularly in the southwest
20 corner where this is talking about.
21 MR. EARL: Mark this, please, as Number 20.
22 (The document was marked
23 Exb. No. 20.)
24 BY MR. EARL:
25 Q. Hand you Number 20, Mr. Neely. Tell me
605
1 what that is.
2 A. This is the document known as the Science
3 Subgroup Report.
4 Q. Have you ever seen it before?
5 A. I've seen it.
6 Q. What's the first time you saw it and for
7 what purpose?
8 A. I can't recall the first time I saw it,
9 Mr. Earl, specifically date and time.
10 Q. Well, what was the occasion? Why were you
11 looking at it?
12 A. It was a new report that had just been
13 released. Obviously it was after November the 15th.
14 Seems like to me it was either December or late
15 December before I saw an actual copy of it.
16 Q. You didn't see this before it was issued?
17 A. Oh, no, sir.
18 Q. Never reviewed it?
19 A. I have nothing to do with this
20 subcommittee.
21 MR. EARL: Bob, did you get one of these?
22 MS. PONZOLI: No, we didn't get one.
23 I would like to wait and see how many
24 questions you intend to ask about this. I mean,
25 if you're going to do a lot of questions, I
606
1 would like to follow.
2 MR. EARL: Then you ought to have one.
3 (Thereupon, the document was handed
4 to Ms. Ponzoli and Mr. Smith.)
5 MS. PONZOLI: Thank you.
6 MR. SMITH: Thank you.
7 BY MR. EARL:
8 Q. Why did you review it when you did get it?
9 What was the purpose?
10 A. I didn't review it.
11 Q. You didn't review it.
12 A. No, sir, not in detail.
13 Q. Okay. Why were you reading it? Just
14 curiosity?
15 A. I just flipped through it. Yes.
16 Q. Anybody from Loxahatchee involved in this?
17 A. Involved in this? No, sir.
18 Q. David Ferrell, is he from Vero Beach?
19 A. Yes, sir.
20 Q. Direct your attention, sir, to page 8 of
21 this report.
22 A. Okay, sir.
23 Q. The third paragraph on that page, "The
24 problems caused by soil loss are magnified by the
25 enormous spatial extent over which the loss has
607
1 occurred."
2 A. Yes, sir.
3 Q. "In fact, the loss is not confined to the
4 EAA but actually extends into the northern parts of
5 Water Conservation Areas 1 and 3-A, where additional
6 soil loss has occurred due to the diversion of water
7 around these areas and even to the EAA to support
8 agriculture."
9 Do you agree with that?
10 MS. PONZOLI: Object to form. I believe
11 Mr. Neely has indicated that he has not really
12 read this document and there are obvious
13 references in this paragraph to prior
14 propositions.
15 So if you're asking him if he agrees with
16 it, it would require his reading the prior
17 propositions for a genuine agreement.
18 MR. EARL: Well, not really.
19 BY MR. EARL:
20 Q. Do you agree, Mr. Neely, that there has
21 been soil loss in the northern parts of Water
22 Conservation Area 1?
23 A. I can't answer that, Mr. Earl. I don't
24 know.
25 Q. Anybody at Loxahatchee know that?
608
1 A. I don't know. I don't know whether, I
2 don't know whether they do or whether they agree with
3 it or not.
4 Q. Well, as a biologist and refuge manager
5 would you anticipate knowing the conditions that have
6 existed since you've been there and prior that there
7 would have been soil loss in the northern area 1?
8 A. Let me read some of this soil loss
9 information just in front of that (reviewing the
10 document).
11 Sir, I don't understand that. I don't, I
12 can't make the connection between soil loss and
13 diversion of water around these areas.
14 Q. Okay. I'm not asking with reference to
15 that. That wasn't the question.
16 I'm asking you as refuge manager and a
17 biologist would you anticipate that there has been
18 soil loss in the northern part of Water Conservation
19 Area 1?
20 MS. PONZOLI: That's been asked and
21 answered.
22 MR. EARL: No, it hasn't.
23 THE WITNESS: I would assume that if there
24 has been some, it's been very minor. I have no
25 documentation showing that there has been
609
1 compared to, say, the EAA.
2 BY MR. EARL:
3 Q. I'm asking you about your judgment and your
4 experience. Do you think there has been or not?
5 MS. PONZOLI: Same objection.
6 THE WITNESS: I don't have an opinion on
7 that. I've never considered that. If there has
8 been soil loss, it's been minimal.
9 BY MR. EARL:
10 Q. How do you know it's minimal?
11 A. Well, I would base that on ground
12 elevation.
13 Q. And what are you comparing it to? What
14 surveys or topographic information are you comparing
15 over time?
16 A. You can look at USGS quad topos and see
17 what the ground elevation that runs from the east and
18 the west and when you get to the eastern -- or the
19 western side of the refuge, it drops off dramatically
20 into the EAA but, yet, the refuge contours blend with
21 the stuff to the east which leads me to believe that
22 it's still fairly close to where it was originally.
23 It's not dramatic. Like I say, if there is soil
24 loss, it's very minimal.
25 Q. Are you able to define what you mean by
610
1 minimal?
2 A. I would say inches.
3 Q. Any estimate of how many inches?
4 A. No, sir, I don't have any estimate of how
5 many inches. I don't, I don't think the topo sheets
6 are even down that fine.
7 Q. Direct your attention to page 10, sir.
8 A. Okay.
9 Q. Third full paragraph on that page.
10 "Compartmentalization of much of the remaining
11 Everglades fragmented the system by creating a series
12 of poorly connected wetlands."
13 Do you agree with that?
14 A. No, sir.
15 Q. Why is that?
16 A. I don't think Loxahatchee is a -- well,
17 poorly connected? I don't think the system is poorly
18 connected. I think there's adequate ways to move
19 water.
20 Q. Isn't Loxahatchee the only water
21 conservation area that's completely diked?
22 A. No, sir, I think area 2 and 2A and 2B are
23 completely diked.
24 Q. Isn't Loxahatchee the only water
25 conservation area surrounded by canals?
611
1 A. On the inside?
2 Q. By canals on the east and west.
3 A. On the east -- on the inside of the levee
4 it's the only conservation area surrounded by canals
5 on the inside.
6 Q. Does any other conservation area have
7 canals around its entire perimeter?
8 A. I think Water Conservation Area 2 does.
9 Has the Hillsboro on the north, the North New River
10 on the west, and the L-36 on the east, if my memory --
11 Q. But they're not on the interior, are they?
12 A. No, sir, I didn't say they were.
13 Q. And these connections you're talking about
14 that are adequate are the S-5A pump station, S-6,
15 S-10 structures, S-39?
16 A. The entire system I think is -- I'm not
17 sure, I'm not sure who interpreted this as poorly
18 connected. I think they're very well connected --
19 Q. Okay.
20 A. -- in the form of water flow.
21 Q. Tell me where the sheetflow connections are
22 between --
23 A. It doesn't refer to sheetflow. It just
24 says poorly connected.
25 Q. Okay. And you think the connections now,
612
1 are they equivalent to sheetflow that was there
2 prior?
3 A. No, sir, they're not by any means
4 equivalent to sheetflow.
5 Q. Are they as good as the sheetflow?
6 A. In what sense?
7 Q. In terms of providing water in the
8 hydroperiod that the Everglades had before the
9 project.
10 A. I don't think so. I don't think they're
11 equivalent to sheetflow.
12 Q. Do you disagree that the Loxahatchee has
13 been compartmentalized?
14 A. I don't understand your question. Water
15 Conservation Area Number 1 is a compartment of the
16 system.
17 Q. Okay. To be used as a reservoir, correct?
18 A. For flood control and water storage, yes.
19 Q. Okay.
20 A. Amongst other things.
21 Q. Mr. Neely --
22 A. Yes, sir.
23 Q. -- could you direct your attention to
24 page 12, please,
25 A. Okay, sir.
613
1 Q. Under the heading "Altered Hydroperiod," do
2 you see that?
3 A. Yes, sir.
4 Q. Second paragraph, "Reduced hydroperiods in
5 wetlands appear to adversely affect aquatic
6 production to all levels of the food chain."
7 A. Yes, sir.
8 Q. Do you agree with it?
9 A. Yes, sir.
10 Q. Do you agree with it as to Loxahatchee?
11 A. Yes.
12 Q. How do they adversely affect all levels of
13 the food chain?
14 A. The lower level of the food chain is
15 generally the periphyton that all of the smallest
16 aquatic organisms feed on, and you go up through
17 that, from that food chain up through the vertebrates
18 and you -- if you don't have water in your aquarium,
19 you don't have fish. And it's almost the same
20 analogy. If you're trying to have aquatic fauna
21 there, you got to have water. And when you reduce
22 hydroperiods in the wetlands and they dry up, then
23 you don't have the food chain. You interrupt the
24 food chain.
25 Q. Do you have an opinion as to whether
614
1 interruptions, changes in hydroperiods or nutrients
2 have had a bigger impact on the higher trophic levels
3 in the Loxahatchee?
4 A. Could you read that back or either restate
5 it?
6 MR. EARL: Would you read it back, please?
7 (Thereupon, a portion of the record
8 was read by the reporter.)
9 THE WITNESS: I would -- in your -- you're
10 lumping hydroperiod and nutrients together,
11 right?
12 BY MR. EARL:
13 Q. I'm asking you to compare the two. Which
14 has had a greater impact?
15 A. I thought that's what you were doing.
16 I can't do that. I do not know which at
17 this point has the greater impact. Short term when
18 the area dries out totally I would say that the
19 hydroperiod, the fact that the area dries out and the
20 aquatic organisms are essentially all but wiped out
21 and then when water's back on it they have to
22 regenerate as opposed to some of the vegetation
23 changes that have been caused by nutrients that you
24 don't normally see in the center of the refuge have
25 eliminated feeding areas for upper trophic animals.
615
1 Q. Let me direct your attention to the third
2 paragraph in that altered hydroperiod section. "In a
3 few areas, such as the southern parts of the water
4 conservation areas, channelization, coupled with
5 impoundment, has increased depth in hydroperiod."
6 You don't disagree with that, do you?
7 A. No.
8 Q. You don't disagree with that as it relates
9 to Loxahatchee, do you?
10 A. No, sir.
11 Increased depth in hydroperiod for those
12 specific areas, the southern parts.
13 Q. Okay. The next sentence states, "Resulting
14 regulation water releases from the water conservation
15 areas have caused unseasonal flooding of alligator
16 nesting sites in Everglades National Park, causing
17 nest failure."
18 You don't disagree with that, do you?
19 A. I don't have any knowledge about that, sir.
20 Q. Never heard about that?
21 A. No, sir.
22 Q. "In addition, these releases have disrupted
23 wading bird nesting, which depends upon concentrated
24 food supplies."
25 Is that true?
616
1 A. I don't know whether it's true or not.
2 I've heard that. I don't know under what
3 circumstances the releases have been made. But that
4 would tend to be, I would tend to agree with that if
5 it were under the right circumstances.
6 Q. That first paragraph on top of page 12, sir --
7 A. Okay.
8 Q. -- about halfway down the sentence starts
9 off, "Channelization and impoundment --" are you with
10 me?
11 A. Um-hum.
12 Q. "-- have disrupted the annual pattern of
13 rising and falling water depths in the remaining
14 wetlands of South Florida."
15 Is that statement applicable to
16 Loxahatchee?
17 A. I don't think it totally applies. We
18 maintain a water, water regulation schedule there,
19 and generally what affects that is the water
20 regulation schedule as opposed to channelization and
21 impoundment.
22 Q. Well, the canals are channelization, isn't
23 it?
24 A. Yeah, I understand what you're saying.
25 But what changes the annual, disrupts the
617
1 annual pattern is not the channelization and
2 impoundment as it is the water levels.
3 Q. The --
4 A. The regulation schedule.
5 Q. As established in the regulation schedule
6 by the Corps, correct?
7 A. Um-hum.
8 The channelization and impoundment is a
9 means of doing something with the water.
10 Q. Under "Encouragement of Invasive Introduced
11 Species," are you with me?
12 A. Um-hum, yes.
13 Q. "Invasive, non-native plant species
14 introduced by man are changing the South Florida
15 landscape and affecting hydrologic conditions and
16 ecosystem function."
17 Do you agree with that?
18 A. To some extent. That's a very general and
19 broad statement.
20 Q. Okay. Five lines up from the bottom of
21 that sentence, that paragraph, "Furthermore, the
22 water conveyance system may be a conduit for the
23 dispersal of invasive introduced species."
24 Do you agree with that?
25 A. I think it's talking about -- yes, I would
618
1 agree with that. Hyacinth can be transported by
2 water as a conduit, for example.
3 Q. Well, when they talk about the water
4 conveyance system, I'm talking about the Central and
5 Southern Florida project. Do you understand that?
6 A. Okay. You're talking about the entire
7 system.
8 Q. Yes.
9 Does it serve as a conduit for the
10 dispersal of invasive introduced species?
11 A. It could serve as a conduit. I wouldn't
12 totally disagree with that.
13 Q. In your opinion, does it?
14 A. To some extent.
15 Q. The next sentence states, "Canals also
16 serve as artificial conduits for the transport of
17 waterborne substances such as nutrients."
18 You agree with that, don't you?
19 A. Yes, sir.
20 Q. If those canals weren't there, the
21 nutrients wouldn't be getting to Loxahatchee, would
22 they?
23 A. The outside canals, that's correct.
24 Q. If the project hadn't been built, those
25 nutrients wouldn't be getting to Loxahatchee, would
619
1 they?
2 MS. PONZOLI: Object to form.
3 THE WITNESS: What puts the nutrients in
4 the refuge is the pumps, not the canals. If the
5 pumps hadn't been built, if there were no pumps
6 pumping water from the outside to the inside,
7 there probably would be very little nutrients in
8 the refuge.
9 BY MR. EARL:
10 Q. If there are no canals, it wouldn't be able
11 to make the circuit, would it?
12 A. Well, it could be sheetflow.
13 Q. But it doesn't, does it?
14 A. No, sir.
15 Q. So if the canals weren't there, the water
16 wouldn't be transported, would it?
17 A. Oh, it could sheetflow across the EAA like
18 it used to.
19 Q. But it doesn't, does it?
20 A. It doesn't.
21 Q. Now, the next sentence, "Probably the most
22 important way that water control structures encourage
23 invasive introduced species --" are you with me?
24 A. Um-hum.
25 Q. "-- is by creating spaces where conditions
620
1 are more favorable to various introduced species than
2 to natives. For instance, altered hydrologic regimes
3 within remnant wetlands have increased their
4 vulnerability to invasion by melaleuca."
5 You agree with that, don't you?
6 A. With the altered hydrologic regimes part of
7 it, yes, I do.
8 Q. And that's true as to Loxahatchee, isn't
9 it?
10 A. I don't think that's the entire reason.
11 Sometimes you'll see for melaleuca, for
12 example, you'll see melaleuca seedlings take, take
13 hold on fern clumps above the water level even though
14 you've got standing water under them. And you've got
15 to have some substrate for the melaleuca to be on.
16 By being dewatered, the marsh provides much more
17 substrate for the melaleuca to gain a foothold on.
18 It's like a planting bed having the damp peat. But
19 you can have melaleuca invasion with the water level
20 still there under certain circumstances particularly
21 where something isn't submerged.
22 Q. That's not the most common way it
23 propogates, though, is it?
24 A. By seed, yes, it is. Sometimes those seeds
25 will get started and if a plant can get started and
621
1 stay above the water, yeah, that plant can continue
2 on and start and result in a head, most likely.
3 Q. Well, are you disagreeing with this
4 assertion that the altered hydroperiod, the drying
5 out?
6 A. No.
7 Q. Okay.
8 A. It says for instance, altered hydrologic
9 regimes within the wetlands have increased invasion
10 by melaleuca. Yes, that's true.
11 Q. And you told me that wasn't the entire
12 reason.
13 But is it the primary reason?
14 A. I would say that it's probably one of the
15 major reasons.
16 Q. Okay. What are the other major reasons?
17 A. The introduction of melaleuca to the area
18 was probably one of the major reasons it spread
19 throughout the region.
20 Q. Who introduced melaleuca to the region?
21 A. I don't know the person's name, sir.
22 Q. That same page under "Changes In Fire
23 Regimes."
24 A. Okay.
25 Q. This federal report asserts, "The role of
622
1 fire may have changed from one of increasing habitat
2 diversity in the natural system to reducing diversity
3 in the current managed system because of altered
4 seasonal burning patterns accompanied by overdrying
5 of wetlands."
6 Do you agree with that?
7 A. Let me read that again and see what they're
8 trying to say (reviewing the document).
9 I don't know whether I totally agree with
10 that or not.
11 When you look at the records and you see
12 that fires prior to the, to the construction of the
13 C&FS project, for example, and even back if you were
14 to speculate and read some of the history on when it
15 was a natural system, I think your fires only came
16 during extreme droughts or you had small, limited
17 ones.
18 Same thing happens at Loxahatchee now. We
19 have small, limited fires or we have larger fires
20 during extreme periods of drought.
21 Q. In your opinion has the severity and
22 frequency of fires increased since the project?
23 A. Since, say, '49 or '50? Probably increased
24 because you got so many people out there setting
25 them.
623
1 Q. Has altered hydroperiod played any role in
2 that?
3 A. To some extent that may be another reason.
4 Q. Is it in your judgment?
5 A. Well, where we have a drought, certainly.
6 The hydroperiods have been altered in a major way.
7 And we had a severe fire in this drought of '89-'90.
8 The last severe drought -- fire we had was in '61
9 during a drought.
10 Q. I understand that.
11 I'm talking about hydroperiod alterations
12 resulting from the regulation schedules of the
13 project.
14 A. I don't think -- the hydroperiod
15 alterations for the regulation schedule are within a
16 framework and they don't generally make the area
17 better or worse for fire. It's when you get to the
18 extremes of no water at all which has nothing to do
19 with the water regulation schedule.
20 Q. Page 16, if you would.
21 A. Okay. "Rationale For Hydrologic
22 Restoration."
23 The first sentence states, "Hydrologic
24 restoration is a necessary beginning to ecological
25 restoration."
624
1 Do you agree with that as it relates to
2 Loxahatchee?
3 A. For the refuge I would say that -- no, I
4 wouldn't for the refuge. Our hydrologic restoration
5 is already there. Our problem is water quality.
6 Q. I thought you were trying to change the
7 regulation schedule, weren't you?
8 A. We are, to improve it.
9 Q. Okay. So it's not there, is it?
10 A. But it's not the necessary beginning for
11 ecological restoration. Our necessary beginning is
12 clean water.
13 Q. Okay.
14 A. Everglades National Park and some of the
15 other water conservation areas may need hydrologic
16 restoration first, but we need clean water.
17 Q. Do you also need sheetflow?
18 A. Not necessarily.
19 Q. Do you want sheetflow?
20 A. We get, we get sheetflow.
21 Q. Is it more desirable to have sheetflow
22 across a broader front of the northern area of
23 Loxahatchee?
24 A. At this time? No.
25 Q. Why not?
625
1 A. Because the water's filthy.
2 Q. So you want to keep it in the canals.
3 A. I would prefer it stay in the canals and
4 sheetflow to the interior through the area that's
5 already been impacted by nutrient rich water.
6 Q. You say it's filthy. What do you mean?
7 A. I mean it's heavy in nutrients.
8 Q. Meaning what? What levels are you talking
9 about?
10 A. Well, if I can refer to Dr. Davis' paper, I
11 can tell you the levels.
12 Q. Well, don't you know?
13 A. There are through the S-5A pump station
14 upward of 200 parts per billion.
15 Q. And what is urban runoff coming off urban
16 streets?
17 A. I don't know. We don't get urban runoff
18 into the refuge in any significant amount.
19 Q. Well, I'm asking when you say it's filthy,
20 what frame of reference do you use?
21 A. Compared to the center of the refuge, the
22 pristine marsh.
23 Q. Okay. When the project was built, they
24 anticipated agriculture would be discharging into
25 that area, didn't they?
626
1 MS. PONZOLI: Mr. Earl, I think you're
2 really bordering on arguing with the witness.
3 We are patiently going through all of your
4 hydroperiod restoration and your love-hate
5 relationship with the Science Subgroup Report.
6 Our strong feelings about water quality are
7 legitimate, and I don't think you should be
8 sitting here arguing with this witness over it.
9 MR. EARL: I'm not. We're just talking
10 about what, who knew what when, Ms. Ponzoli.
11 MS. PONZOLI: I don't think that's what's
12 going on at all.
13 BY MR. EARL:
14 Q. Is it your understanding of the history of
15 this project when the project was built, they
16 anticipated the EAA would be used for agriculture?
17 A. That's correct.
18 Q. Is it your understanding of this project
19 when the project was built they designed Loxahatchee
20 to receive those agricultural waters?
21 A. That's correct.
22 MS. PONZOLI: At the levels and the degree
23 to which they are receiving them today,
24 Mr. Earl, no.
25 MR. EARL: You can testify as much as you
627
1 want, Ms. Ponzoli, but the witness has to -- is
2 under oath.
3 MS. PONZOLI: I'm not keeping him from
4 testifying.
5 MR. EARL: If you want to coach him, I
6 mean, let's do it.
7 MS. PONZOLI: I haven't asked him not to
8 answer once today and I'm not coaching him. I
9 just think that your arguing with him over these
10 points is improper.
11 BY MR. EARL:
12 Q. At the time this project was built,
13 Mr. Neely, is it your understanding that sheetflow or
14 flow across the marsh was not incorporated into the
15 design?
16 A. I don't know what their thoughts were on
17 that, Mr. Earl.
18 Q. Okay.
19 A. I wasn't involved in the design and have
20 read no data on it.
21 Q. As constructed, there is no sheetflow
22 across the marsh coming into Loxahatchee, is there?
23 A. Yes, sir, there is.
24 Q. Where is that?
25 A. From any canal when the canal level goes
628
1 up, sheetflow starts across the marsh toward the
2 center which is, which would be lower at higher canal
3 levels.
4 Q. And is that the general pattern of flow
5 most of the time?
6 A. With the exception of the southwest corner.
7 Q. And how often does that sheetflow cover the
8 marsh?
9 A. Any time the canal level is pumped higher
10 than the marsh level.
11 Q. And how often is that?
12 A. Depends on the rainfall, Mr. Earl.
13 Q. Well, in a typical year.
14 A. I couldn't even begin to guess the number
15 of times, but it's frequent.
16 Q. Have you ever proposed or suggested methods
17 to allow sheetflow into that Loxahatchee?
18 A. We have sheetflow now, sir.
19 Q. That isn't the question.
20 A. I don't understand your question then.
21 Q. Have you ever proposed any methods or
22 participated in formulating any proposals to have
23 sheetflow into the Loxahatchee?
24 A. No, sir. At this, at this point in time it
25 would be detrimental to the rest of the refuge to
629
1 sheetflow large quantities of nutrient rich water
2 through the center.
3 Q. When I talk about sheetflow, I'm talking
4 about coming into the Loxahatchee.
5 A. No, sir, I've never proposed anything.
6 I've never heard of anybody proposing that.
7 Q. You never have.
8 A. No, sir.
9 Q. Never heard about STA's?
10 A. Well, that doesn't have anything to do with
11 water coming into the refuge, sir, in a sheetflow
12 pattern.
13 Q. Well, let's phrase it this way. Have you
14 ever proposed treatment areas?
15 A. Yes, sir.
16 Q. And endorsed treatment areas?
17 A. Yes, sir, I have endorsed treatment areas.
18 Q. And those are the STA's.
19 A. STA's and the ENR.
20 Q. And is one of the benefits of that uptake
21 of nutrients as it flows across and through that --
22 A. Through the STA's.
23 Q. Right.
24 A. Yes, sir.
25 Q. So you have proposed that.
630
1 A. STA's and ENR. I don't know what you're
2 asking me.
3 MS. PONZOLI: Yes, I'm going to object to
4 the form because he's clearly confused. I've
5 let you try to clarify it, but it doesn't seem
6 to be getting better.
7 BY MR. EARL:
8 Q. There's no STA's in the original project
9 design, was there, Mr. Neely, as constructed?
10 A. No, sir.
11 Q. Why is that, do you know?
12 A. I have no idea.
13 Q. Okay. Who designed the project?
14 A. I have no idea.
15 Q. Corps of Engineers, didn't they?
16 A. I would imagine it was a cooperative
17 agreement between the Corps of Engineers and the,
18 with some input from the Central and Southern Florida
19 Flood Control District.
20 Q. Who did the general design?
21 A. The Corps of Engineers for what was
22 remaining of the project for that project at that
23 point. Prior to that somebody else did design.
24 Q. Remaining of what project at what point?
25 A. Prior to the C&FS project there were other
631
1 designs, Mr. Earl, when the canals were built.
2 Q. You mean the Everglades Drainage District --
3 A. Yes, sir.
4 Q. -- for example.
5 A. Yes, sir, that's one example.
6 Q. Okay. And the State did that, correct?
7 A. Yes, sir.
8 Q. Okay, Mr. Neely. Let's talk about, if you
9 would, Exhibit 17 again, please, page 130.
10 Under "Introduced Species," are you with
11 me, sir?
12 A. I see something that says "Introduced
13 Exotics."
14 Q. "Introduced Exotics."
15 A. Yes, sir.
16 Q. "Invasion by exotic vegetation is a growing
17 problem on the refuge."
18 Do you agree with that?
19 A. Yes, sir.
20 Q. Okay. "Melaleuca and Brazilian pepper are
21 both rapidly spreading along the perimeter of the
22 refuge and into the interior marsh."
23 A. Melaleuca is. Brazilian pepper isn't
24 spreading rapidly into the marsh.
25 Q. But melaleuca is.
632
1 A. Yes, sir.
2 Q. "Melaleuca is currently found in every
3 section of the refuge."
4 Do you agree with that?
5 A. Depends on what a section is, sir.
6 Q. What do you take it to mean in this
7 context?
8 A. I have no idea. I didn't write this.
9 There are places there are no melaleuca
10 which means that it's not in every section.
11 Q. So this is wrong.
12 A. I would say so.
13 Q. Okay.
14 MS. PONZOLI: I think this has been asked
15 and answered. I think you understood where he
16 thought melaleuca was in the refuge. We did
17 that this morning.
18 BY MR. EARL:
19 Q. "In 1965, few exotic trees were present."
20 Is that true?
21 A. I don't know, sir. I wasn't here in '65.
22 Q. You never heard any history about that, of
23 spread of melaleuca?
24 A. Oh, you're talking melaleuca?
25 Q. Yeah.
633
1 A. Okay. It said exotic trees. There are
2 others other than melaleuca.
3 Melaleuca in '65, to the best of my
4 understanding, were very few and far between.
5 As a matter of fact, one of my maintenance
6 people told me that in years past that any time they
7 saw a melaleuca seedling, they stopped and pulled it
8 up.
9 Q. What do you mean, in the sixties?
10 A. Sixties and seventies.
11 Q. And they could keep up with it that way.
12 Now it's become --
13 A. Well, they obviously didn't keep up with
14 it.
15 Q. Okay. The next sentence, "Currently, tree
16 island and sawgrass communities along the eastern
17 portion of the refuge are most impacted" by
18 melaleuca.
19 Is that true?
20 A. I'd say the eastern or southeastern portion
21 of the refuge is the most heavily infected.
22 Q. "In 1988, total coverage of melaleuca on
23 the refuge was estimated to be near 4,000 acres."
24 Do you agree with that?
25 A. I have no reason not to. That's an
634
1 estimate.
2 Q. Have you got a better number?
3 A. No, sir.
4 Q. Okay. We've identified this as Number 16.
5 I believe we've previously identified it, but let's
6 identify it just for -- what is Number 16 which you
7 now have in your hand?
8 A. This is a draft of the Annual Narrative
9 Report for calendar 1993 for the Loxahatchee National
10 Wildlife Refuge.
11 Q. And this is now in process?
12 A. Yes, sir, it's in process.
13 This draft was run off the computer late
14 yesterday.
15 Q. Go to page 19 of this, please --
16 A. Okay, sir.
17 Q. -- under the heading "Wetlands," item 2 on
18 that page.
19 A. Yes, sir.
20 Q. It talks about the WCA-1 regulation
21 schedule developed in the mid seventies.
22 We talked about that earlier, do you
23 remember?
24 A. Yes, sir.
25 Q. Okay. The second sentence says, "This
635
1 schedule was roughly patterned after the natural
2 wet/dry cycle of the Everglades and was designed with
3 the intent of drying over 50 percent of the marsh
4 once every three or four years."
5 A. Yes, sir.
6 Q. Is that accurate as you understand?
7 A. Well, earlier we talked two to three years.
8 One document said two to three years. This document
9 has three to four.
10 Q. Well, this is your document. I'm just
11 asking you.
12 A. Yes.
13 Q. Is this more accurate?
14 A. I don't know. I think it's, it says what
15 it says. I don't know whether it's more accurate or
16 not.
17 Q. Well, what's in your judgment?
18 A. Two to three or three to four?
19 Q. Or three to five.
20 A. An average of three would be my judgment.
21 Q. Okay. "With increasing water demand and
22 slightly below normal rainfall, the marsh has been
23 drying nearly every year."
24 You agree with that, too, don't you?
25 A. Nearly every year but not every year.
636
1 Q. The last two lines of this paragraph state,
2 the end there, "The current schedule maintains water
3 levels too low for a healthy Everglades marsh."
4 A. You lost me there.
5 Okay. "With the minimum land elevation"?
6 MS. PONZOLI: He wants to start right here
7 (indicating).
8 THE WITNESS: Oh. He wants to start in the
9 middle of the sentence. "The current schedule
10 maintains water levels too low for a healthy
11 Everglades marsh."
12 Yes, I'd agree with that.
13 BY MR. EARL:
14 Q. You agree with that? Okay.
15 A. As it pertains to Loxahatchee.
16 MR. SMITH: What page is that?
17 THE WITNESS: 19.
18 MS. PONZOLI: Right here (indicating).
19 MR. SMITH: Okay.
20 BY MR. EARL:
21 Q. Now, the last full paragraph on that page
22 four lines up starts off, "17 feet MSL to 17.5 feet
23 MSL"?
24 A. Yes, sir.
25 Q. Okay. I'm interested in the next clause,
637
1 "Reversal of the trend of brush invasion into
2 sawgrass and sawgrass invasion into wet prairies
3 because hydroperiod will be extended significantly
4 throughout the refuge."
5 A. Yes.
6 Q. Do you agree that that's what the new
7 schedule will do?
8 A. Yes, sir.
9 Q. How significant has that trend of brush
10 invasion into sawgrass and sawgrass into wet prairies
11 been?
12 A. I think if you were to compare it, you
13 would see a significant, we're talking significant,
14 you know, I don't have any numbers for that, but it
15 is a significant, it's been significant throughout
16 the refuge or we wouldn't have noticed it.
17 Q. Thousands of acres?
18 A. Could be. Could be thousands.
19 Q. Well, what would be your best estimate?
20 A. I don't, I couldn't give you an estimate on
21 that.
22 Q. Again, who would know that?
23 A. Oh, you mean the acreage?
24 Q. Yes.
25 A. I doubt if anybody would know that.
638
1 Somebody might could give you a guess or work with
2 the data and give you an estimate, but I don't think
3 that we've done that.
4 Q. You've never bothered to compute that --
5 MS. PONZOLI: Object to form.
6 BY MR. EARL:
7 Q. -- how much has been lost; is that correct?
8 A. Well, it's probably been done in a
9 different way in that the evaluations of what's there
10 compared to the last evaluation and it shows changes,
11 but, then again, different methods were used as
12 opposed to nowadays you can use satellite imagery and
13 computer analysis, whereas when they did their work
14 back in the seventies they had to do it with aerial
15 photos by hand and do aerial interpretation which was
16 a totally different method.
17 Q. Well, as we sit here today have you done it
18 with satellite imagery or otherwise to your
19 knowledge?
20 A. I think there's been an evaluation of the
21 habitat on the refuge with, I know there has been,
22 with satellite imagery and it's found in work
23 order 32.
24 Q. I understand that.
25 Has an analysis been done to your knowledge
639
1 of the amount of brush invasion into sawgrass and
2 sawgrass invasion into wet prairies because of
3 hydroperiods?
4 A. No, sir, because we don't have the
5 satellite imagery to do that. We don't have past
6 satellite imagery to compare current satellite
7 imagery with.
8 Q. You don't have seventies satellite images?
9 A. No, sir, not that we can use.
10 Q. Page 28 of your report, sir.
11 A. Okay, sir.
12 Q. Third paragraph, "In August, 55 acres of
13 melaleuca in the northwest corner of the refuge were
14 aerially treated using 90 gallons of Garlon 3A."
15 A. Yes, sir.
16 Q. And the last sentence in that paragraph,
17 "In November, 20 acres were retreated using 55
18 gallons of Garlon 3A at a cost of 3,000." Are you
19 with me?
20 A. Right. In November, 20 acres were treated?
21 Q. Um-hum.
22 A. Right.
23 Q. Is that accurate?
24 A. To the best of my knowledge. I can't
25 attest to the figures. I wasn't the one that was
640
1 involved in doing that.
2 I know that the aerial applications were
3 made.
4 Q. Okay. And you know that Rodeo's also used;
5 is that correct?
6 A. I don't see any reference to it.
7 Q. Well, go down one, two paragraphs.
8 "Assistant Wildlife Biologist Fred Broerman and
9 Biological Science Technician Bill Thomas..." Do you
10 see that?
11 A. Yes, sir.
12 Q. Last sentence, "A one percent to two
13 percent solution of Rodeo --"
14 A. And/or Diquat.
15 Q. "-- and/or Diquat was applied eliminating
16 upwards of 90 percent of cattail"?
17 A. That's in impoundment C-6, yes.
18 Q. I understand.
19 Rodeo and Diquat were used, correct?
20 A. And/or. I don't know which. Probably
21 both.
22 Q. Page 30. And this is for what year now,
23 Mr. Neely? This is the '93 report which would be
24 reviewing the '93 calendar year?
25 A. Yes, sir.
641
1 Q. Okay. So what we're talking about here
2 happened in 1993.
3 A. Yes, sir.
4 Q. Okay. Are you on page 30?
5 A. Yes, sir.
6 Q. Okay. Second paragraph from the bottom,
7 "The SFWMD maintains responsibility for keeping
8 refuge canals (L-40, L-39, L-7) navigable through the
9 elimination of noxious, aquatic vegetation. District
10 crews spent a total of 1,725 hours spraying 283
11 gallons of Rodeo and 371 gallons of Diquat in an
12 effort to control cattail, water lettuce, water
13 hyacinth, phragmites and pennywort."
14 Is that accurate, as far as you know?
15 A. I have no idea. I assume it to be
16 accurate.
17 Q. Well, who wrote this section of the report?
18 A. Probably Fred Broerman. I don't know. I
19 don't know if a -- usually --
20 Q. Well, go to page 53.
21 A. Hang on.
22 Q. Go to page 53.
23 A. Yeah, that's what I'm looking at here.
24 We're talking in -- what section are we in?
25 10.
642
1 Q. 10?
2 A. Bill Thomas, section F-10. Is that it?
3 Q. You tell me. It's your report.
4 A. I'm -- well, this is the first time I've
5 seen it, too, Mr. Earl.
6 Yes, Bill Thomas.
7 Q. Okay. You don't have any reason to believe
8 this is inaccurate, the gallonage?
9 A. No, sir. That's probably data furnished by
10 the Water Management District.
11 Q. Okay. And do you have any information on
12 the impacts of Diquat and Rodeo on the vegetation
13 along the perimeter canals?
14 A. Well, generally when it's sprayed on it, it
15 kills it.
16 Q. What about other vegetation? Do you get
17 drift? Do you get drift? How do they spray that, do
18 you know?
19 A. I don't know how they sprayed this. Some
20 of it may have been by helicopter and some of it may
21 have been by airboat. Some of it may have been by
22 regular spray boat. Probably a combination. I don't
23 know what methods they used for that particular set
24 of numbers.
25 Q. In the past you've lost some native
643
1 vegetation, haven't you, from misspraying?
2 A. Sure, when you have a stand of water
3 hyacinth and there may be some smartweed or something
4 growing in there. We prefer not to kill the
5 smartweed. But if you're going to kill the hyacinth,
6 you have to kill the hyacinth and it gets the
7 smartweed.
8 Q. Where would I go in this report to find the
9 section on melaleuca, Mr. Neely?
10 A. I don't know. I would imagine right down
11 at the bottom of page 27 or on page 27 there's two or
12 three. I see melaleuca, the word melaleuca several
13 times through there.
14 Q. Okay. Let's start on the top of 27, second
15 paragraph, "Refuge operations and funding are geared
16 primarily towards the treatment of melaleuca, an
17 exotic plant introduced from Australia in the early
18 1900s." We've already talked about that. "With no
19 natural enemies in South Florida, and an ideal
20 growing climate, melaleuca now threatens to
21 permanently replace and eliminate native Everglades
22 fauna and fauna."
23 Do you agree with that?
24 A. I agree with that.
25 Q. In your judgment is melaleuca a great or
644
1 lesser threat than cattail expansion for nutrients in
2 the Loxahatchee?
3 A. Melaleuca hasn't got anything to do with
4 nutrients. Cattail is the nutrient problem.
5 Q. I didn't ask you that. I asked you between
6 the two which is the more significant risk?
7 MS. PONZOLI: I'm going to object to the
8 form. It's an issue that fascinates the League
9 but is not as interesting to us.
10 THE WITNESS: I would say that between the
11 two -- I don't, I have never rated one to be
12 over the other. I rate them both to be a
13 different type of threat caused by a different
14 situation.
15 BY MR. EARL:
16 Q. Which is responsible for the greater
17 spatial extent of replacement of other vegetation,
18 cattails or melaleuca?
19 MS. PONZOLI: Object to form. You have to
20 define what you mean.
21 THE WITNESS: No, sir, I don't know what
22 you mean. Spatial extent, what are you talking
23 about?
24 BY MR. EARL:
25 Q. Which occupies more area, cattail or --
645
1 A. Cattail.
2 Q. -- melaleuca?
3 Okay.
4 A. In my judgment without seeing any kind of
5 data.
6 Q. Based on your experience out there, the
7 area of moderate to heavy melaleuca infestation on
8 your refuge is less than the area taken up by
9 cattails?
10 A. No, that wasn't the question.
11 Q. Okay. That is the question now.
12 A. Okay. The question there is -- and this
13 was something we discussed awhile ago when we're
14 talking about being impacted by melaleuca, an
15 impacted area as opposed to predominant or dominant.
16 Q. I'm using your term that you used in these
17 reports for several years.
18 A. I understand. And I'm looking at the
19 sentence, and it's approximately 20,000 acres that
20 have some type of infestation moderate to heavy.
21 Q. Okay. And is that more or less than the
22 area of moderate to heavy cattail infestation?
23 A. I don't know. I have not read this report
24 and I don't know whether there's a reference to it in
25 here or not.
646
1 Q. I'm asking your knowledge, not your --
2 A. Based on my knowledge, I would say that
3 cattail probably has occupied, occupies more refuge
4 land than melaleuca.
5 Now, that doesn't have anything to do with
6 whether it's moderately or heavily infested.
7 Q. The next sentence in that second paragraph,
8 "Pod-bearing trees, when stressed by fire, drought,
9 temperature extremes, or chemical treatments are
10 capable of generating thousands of seedlings by
11 releasing millions of seeds enabling the trees to
12 completely take over an area within 30 years and
13 become the dominant plant species."
14 Is that accurate?
15 A. I wouldn't argue with it. I think it's
16 probably accurate.
17 I might disagree with the length of time.
18 It could be done in shorter period under the right
19 condition.
20 Q. "Pure stands of melaleuca, or heads, may
21 become so dense that they are impenetrable to both
22 humans and wildlife."
23 Do you agree with that?
24 A. To certain types of wildlife. And to
25 humans, yeah, they're so close together, you can't
647
1 walk between them.
2 Q. And those areas exist in the Loxahatchee,
3 correct?
4 A. In heads, yes.
5 Q. What's the total area of heads of that
6 nature?
7 A. I don't have any idea, Mr. Earl.
8 Q. "Recent surveys indicate melaleuca now
9 infests three million acres of original Everglades
10 habitat."
11 Do you disagree with that?
12 A. I have no reason not to. I can't vouch for
13 that number.
14 Q. Okay. And the last sentence, "According to
15 Refuge Wildlife Biologist Mark Maffei, 20,000 acres
16 of the refuge are considered to be moderately to
17 heavily infested with melaleuca."
18 Is that correct as you understand it, that
19 number?
20 A. It's an estimate.
21 Q. Do you have any reason to disagree with it?
22 A. No.
23 Q. Do you know a better number?
24 A. No.
25 Q. Okay.
648
1 Now, didn't you just agree with me that
2 several years ago in 1988 the best estimate was there
3 were 4,000 acres of melaleuca?
4 A. In 1988? I don't know where I agreed with
5 you on that, and I would want to hear my testimony on
6 it if it was in reference to some document.
7 Q. Let's go to page 130 of Exhibit 17 under
8 "Introduced Exotics," last sentence.
9 A. Okay. This is based on 1988 data, and it
10 says, "Total coverage of melaleuca on the refuge,"
11 and here we're using updated data, most likely, and
12 we're talking about moderate to heavily infested.
13 Moderate, I don't know what his term for
14 moderate is, but I would say more than X number of
15 trees per acre.
16 Q. Um-hum.
17 A. But I don't know what basis that is.
18 Q. So in --
19 A. This is a general report and not a
20 technical report meant to convey in generalities
21 what's happening there.
22 Q. Sure.
23 In 1988 we had a total of, total, according
24 to that, of 4,000 acres, correct?
25 A. Total coverage.
649
1 Q. Yes, of melaleuca.
2 A. Right. That's not what this says. This
3 doesn't say we have 20,000 acres of total coverage.
4 Q. That's my point, Mr. Neely.
5 A. Yes, sir, it doesn't say that. It says we
6 have 20,000 acres that are moderately to heavily
7 infested.
8 Q. All right. So the area of total coverage
9 would be larger than that, wouldn't it?
10 A. Larger than what, 20,000 acres?
11 Q. The area of total melaleuca coverage would
12 be larger than the area just moderately or heavy
13 infested, wouldn't it?
14 A. No, sir.
15 Q. Why is that?
16 A. I would say that this is where you find
17 melaleuca throughout the refuge either in moderate to
18 heavy stands.
19 I would say here that this is ground -- I'm
20 trying to interpret somebody else's writing -- that
21 this would be ground coverage.
22 MS. PONZOLI: You're saying it opposite.
23 MR. EARL: Well --
24 MS. PONZOLI: And since neither of you read
25 it...
650
1 BY MR. EARL:
2 Q. Total ground coverage, okay, is 4,000 acres
3 in '88?
4 A. It doesn't say that. It says total
5 coverage of melaleuca, and I do not know what whoever
6 wrote this meant.
7 Q. When you answered my question, your
8 understanding and you answered it with the
9 understanding that that was total ground coverage,
10 correct?
11 A. I answered that it was an estimate.
12 Q. Of total ground coverage, correct?
13 A. No, I didn't say that.
14 Q. What are you --
15 A. I said total coverage of melaleuca in 1988
16 was estimated at near 4,000. I said I have no reason
17 to dispute that. It's an estimate.
18 MR. EARL: Would you go back and read his
19 answer, please?
20 MS. PONZOLI: How far back is that?
21 THE WITNESS: Way back.
22 MS. PONZOLI: Well, while we look for it
23 can we go off the record and let me take a
24 break? Because it's going to take her quite
25 awhile to find it.
651
1 MR. EARL: Not really. It's the last
2 answer. But we'll take a break if you'd like.
3 MS. PONZOLI: Yes, I would.
4 MR. EARL: Five minutes?
5 (Thereupon, a recess was taken from
6 3:05 p.m., until 3:15 p.m.)
7 MR. EARL: Okay. Are we ready?
8 Would you read back the answer where the
9 witness talked about total ground coverage,
10 please.
11 (Thereupon, a portion of the record
12 was read by the reporter.)
13 THE WITNESS: That's the 4,000 acres.
14 BY MR. EARL:
15 Q. Right.
16 So in 1988, as you understand it, there
17 were 4,000 acres of total ground coverage of
18 melaleuca in the --
19 A. Estimate. That was an estimate.
20 Q. Sure, right.
21 A. Right.
22 I don't know what it was based on, but it
23 was an estimate.
24 Q. Okay. And your '93 draft report, am I
25 correct, says there's 20,000 acres of melaleuca in
652
1 moderate to heavy --
2 A. Yes, sir.
3 Q. -- concentrations?
4 Okay.
5 A. And that's probably based, the difference
6 between moderate to heavy is based on number of trees
7 per acre. I can't testify to that -- or I can't
8 verify that, but that's generally the way they
9 classify these areas.
10 Q. Okay. So there would be other areas
11 covered beyond the 20,000 acres, but it didn't have
12 moderate --
13 A. No, sir.
14 Q. -- or heavy density.
15 A. Well, it could be a single tree in an area.
16 Q. Well, it would be areas with light. You
17 said you --
18 A. That's what I'm talking about, light.
19 There would be light coverage. It could be a single
20 tree in, say, 30 or 40 acres, 100 acres, 1,000 acres.
21 I don't know what basis they used.
22 This is according to Dr. Maffei.
23 Q. Okay. What in your opinion is the rate of
24 expansion of cattails exceeded by melaleuca in the
25 Loxahatchee?
653
1 A. I do not know.
2 Q. In 1993 if Dr. Maffei was talking about
3 20,000 acres of moderate to heavy, what would you
4 consider, what would be the equivalent number to the
5 4,000 total ground cover?
6 A. I don't have any basis to make an estimate.
7 Q. Would it be smaller or larger than 20,000?
8 A. I would say it would be much smaller.
9 Q. Well, then you need to explain to me what
10 the 4,000 total ground cover means to you as you
11 explained it.
12 A. My interpretation of the reference here,
13 "In 1988, total coverage of melaleuca on the refuge
14 was estimated to be near 4,000 acres."
15 Q. Um-hum.
16 A. Now, to interpret from that, it could be
17 ground cover, it could be acres covered by melaleuca.
18 If you were to round all the melaleuca up in the
19 refuge in one plot, it would cover some, some amount
20 of acreage. I don't know whether that's exactly what
21 they mean or not. It could be the amount that was
22 heavily infested. I do not know what estimate they
23 used here when they did this.
24 Q. As refuge manager what is your best
25 estimate?
654
1 A. Of what?
2 Q. Of what the equivalent of the moderate to
3 heavy would be in 1988.
4 A. I have nothing to base that on, Mr. Earl.
5 My best -- I could give a guess, but I have nothing
6 to base it on.
7 MS. PONZOLI: (Shaking head from side to
8 side).
9 BY MR. EARL:
10 Q. Have you done any, has the Loxahatchee
11 staff done any melaleuca mapping in the last two
12 years?
13 A. I don't know whether it's been within the
14 last two years, but I do know that there's some
15 melaleuca maps available and I believe they have been
16 done within the last two years.
17 Q. By the Water Management District?
18 A. No, by the Refuge.
19 Q. By your staff?
20 A. You asked by my staff. Yes.
21 Q. Who did those?
22 A. My staff.
23 Q. Who?
24 A. Dr. Maffei and probably some of the other
25 biologists to some extent with input.
655
1 Q. What's the most recent one?
2 A. I don't have any idea.
3 MR. EARL: We haven't marked this, have we?
4 MS. PONZOLI: Which one is that?
5 MR. EARL: The melaleuca funding request.
6 THE WITNESS: No, that hasn't been marked.
7 MR. EARL: Would you mark this, please, as
8 Number 21.
9 (The document was marked
10 Exb. No. 21.)
11 BY MR. EARL:
12 Q. Mr. Neely, did you bring with you any of
13 the melaleuca maps that have been done in the last --
14 A. No, sir.
15 Q. -- year or two?
16 A. Because they would be in Dr. Maffei's
17 documentation.
18 Q. Which he's providing to us?
19 A. Yes. I think they've already been
20 provided.
21 Q. Okay. Let's look at Exhibit 21. Tell me
22 what this is, please.
23 A. This is a melaleuca control program
24 proposal for '94 funding that was prepared July
25 the 19th of 1993.
656
1 Q. And did you review this and approve it
2 before it went out?
3 A. Yes.
4 Q. The last sentence of paragraph 1 -- well,
5 let's go back to the prior sentence. "A survey
6 conducted in 1990 by Refuge staff indicated that over
7 20,000 acres of the 143,000 acre marsh in the refuge
8 were moderately to heavily infested with these
9 trees."
10 A. Yes, sir.
11 Q. You agree with that?
12 A. Yes, sir.
13 Q. Is that the work we just talked about?
14 A. Yes, sir.
15 Q. The next sentence states, "This is an
16 explosive increase in the numbers of these trees
17 within the refuge over the situation in the early
18 1970s, when these trees were rarely encountered."
19 Is that true?
20 A. Yes, sir.
21 Q. You have no opinion about whether the
22 cattail or the melaleuca explosion has been more
23 frenetic, do you?
24 A. No.
25 MS. PONZOLI: The melaleucas don't have a
657
1 major industry supporting them.
2 BY MR. EARL:
3 Q. Do you have a funding proposal out for
4 cattail control?
5 A. No, sir.
6 Q. What?
7 A. No, sir.
8 Q. Why is that?
9 A. Well, I was hoping we'd have clean water by
10 now.
11 Q. But you do control the cattails in some
12 areas, don't you, the compartments?
13 A. The compartments on the west -- on the east
14 side of the refuge.
15 Q. And why don't you control them in the other
16 areas of the refuge?
17 A. Because it's too big.
18 Q. Too big for what?
19 A. For control.
20 Q. For spraying?
21 A. For adequate control. Too costly.
22 Q. Now, you provided portions of the fax of
23 the '93 study -- I'm sorry, the '92 annual report,
24 correct?
25 MS. PONZOLI: I believe we provided the
658
1 entire fax. The fax is simply not the entire
2 '92 annual narrative report.
3 MR. EARL: Yes.
4 BY MR. EARL:
5 Q. We have up to page --
6 MS. MC NALLY: 30.
7 BY MR. EARL:
8 Q. -- 30.
9 A. That's what you asked for, sir.
10 Q. Okay.
11 A. The first 30 pages.
12 Q. But I note in looking at this pages 33 to
13 44 deal with wildlife.
14 So will we have that tomorrow?
15 A. I don't have a copy of it, so I can't look
16 at it.
17 MS. PONZOLI: Here. I'm sorry.
18 (Thereupon, the document was handed
19 to the witness.)
20 THE WITNESS: Yes.
21 MS. PONZOLI: It's our understanding that
22 the -- well, it says on the front of the fax
23 sheet, "Complete narrative will be sent via
24 Federal Express today."
25 MR. EARL: So we'll have it tomorrow
659
1 morning.
2 THE WITNESS: You'll have it when Federal
3 Express delivers it tomorrow morning.
4 BY MR. EARL:
5 Q. Okay. That's what I asked.
6 Now, what has Dr. Mallaby been doing at the
7 Loxahatchee?
8 A. Doctor who?
9 Q. Mallaby from University of Exeter, is it?
10 A. Maltby.
11 Q. Maltby? How do you spell that?
12 A. I don't know how he spells his name.
13 Dr. Maltby. I don't know.
14 Q. What's he been doing at the refuge?
15 A. He was running -- he brought a group of
16 students over to do some work.
17 Let's see if it references it in this
18 draft.
19 Q. What are you referring to now?
20 A. I think it's in the draft of the '93
21 narrative, reference to that. I'm not sure.
22 Q. Okay. I'm asking you apart from that, to
23 your knowledge tell me what you know about it.
24 A. It was a study dealing with --
660
1 (Thereupon, the document was handed
2 to the witness.)
3 THE WITNESS: Yeah.
4 -- nutrient levels in the ibis rookery.
5 I knew I read it somewhere. M-a-l-t-b-y.
6 BY MR. EARL:
7 Q. And who funded that?
8 A. I have no idea. We didn't.
9 Q. You didn't?
10 A. No, sir.
11 Q. Justice Department fund that?
12 A. I have no idea.
13 Q. You have no idea whatsoever.
14 A. No, sir, I do not know who funded it.
15 Q. Did he have a permit for this?
16 A. Yes.
17 Q. Did you approve the permit?
18 A. Yes.
19 Q. And you don't have any recollection of what
20 the purpose was or who paid for it.
21 A. What the purpose was?
22 Q. Who paid for it.
23 A. The purpose is for nutrient levels in the
24 ibis rookery.
25 I do not know who financed his operation.
661
1 Q. Okay. Have you produced that permit?
2 A. I'm pretty sure we produced that permit
3 with all the permits that we gave. I can
4 double-check. I don't know for certain.
5 Q. I don't think we saw that one.
6 MS. PONZOLI: Under which request,
7 Mr. Earl?
8 MR. EARL: Well, the original one and the
9 current one, either one.
10 THE WITNESS: I can check on it and see.
11 MS. PONZOLI: Which category do you think
12 it's covered by, Mr. Earl? Which category do
13 you think that's covered by?
14 MR. EARL: Well, probably several,
15 Ms. Ponzoli.
16 MS. PONZOLI: Well, you know, I mean, it
17 isn't anything that would have certainly leapt
18 to my mind.
19 THE WITNESS: It certainly didn't mine.
20 MR. EARL: Well, let's start off with
21 number 2, documents relating to the subject
22 matter of this action which was nutrients --
23 MS. PONZOLI: Wait, wait.
24 MR. EARL: -- in Loxahatchee. I'll give
25 you a whole list.
662
1 MS. PONZOLI: No, no, no, of where -- of
2 expert testimony.
3 Dr. Maltby is not an expert nor to my
4 knowledge does anyone intend to testify from
5 that, whatever he was doing.
6 So it wouldn't fit in 2 by my
7 understanding.
8 Just so you know, Mr. Earl, I didn't know
9 if Dr. Maltby was doing this. If he conveyed
10 that to me, I must not have been listening. It
11 certainly wasn't at my direction.
12 MR. EARL: Well, I'm afraid it does relate
13 if it's going to be relied on for anybody's
14 expert testimony, if it's going to be utilized
15 by Mr. Maffei or...
16 MS. PONZOLI: I agree. If someone's going
17 to use that, then I would not quarrel with you.
18 However, I have no knowledge of anybody
19 using it.
20 If someone is using it, then I think that's
21 fair that it should be provided.
22 I have no knowledge that anyone.
23 BY MR. EARL:
24 Q. Has he furnished a report?
25 A. I don't think so. I do not know. If he
663
1 had, it would have been furnished to Dr. Maffei and
2 would most likely be in his documents.
3 Q. We're talking about what you produced.
4 Let's go down to item 12, "Any and all
5 documents related to soil sampling/efforts, water
6 quality testing, soil deposition testing, atmospheric
7 deposition testing, and all related data and
8 reports."
9 MS. PONZOLI: They have to be in his
10 possession, Mr. Earl. I don't agree that he has
11 to produce anything that was going on on the
12 whole refuge.
13 MR. EARL: So I need to send a duces tecum
14 to everybody at the refuge to get what's in
15 their possession, is that what you're telling
16 me?
17 MS. PONZOLI: No, Mr. Earl.
18 I'm telling you --
19 THE WITNESS: I can --
20 MS. PONZOLI: Wait, wait, Mr. Neely.
21 I do not believe that you are sending
22 proper document requests, but I have not fought
23 with you over this point.
24 I have tried -- because you are going
25 through public records and FOIA and every other
664
1 discovery opportunity that you have, it really
2 doesn't benefit me to spend a lot of time
3 fighting with you over these things.
4 However, I do not consider these proper
5 document requests.
6 You're entitled to what Mr. Neely has in
7 his possession that he intends to rely upon when
8 he testifies at the time of trial.
9 He does not intend to rely upon Dr. Maltby,
10 and I do not believe that you can ask for just
11 anything that exists at the refuge and have a
12 right to obtain that.
13 Now, since you can obtain it through FOIA
14 from the United States, I have not chosen to
15 fight with you over these things. And I'm not
16 refusing to provide to you Dr. Maltby's
17 information. I just think that you're not
18 behaving in a fair or an equitable way in these
19 document requests and I find it offensive that
20 you continue to behave as you do, and I guess I
21 want the record to reflect that.
22 It is an overbearing, overreaching effort.
23 MR. EARL: Thank you for the talk,
24 Ms. Ponzoli.
25 Are you going to provide Dr. Mallaby's --
665
1 MS. PONZOLI: Maltby. If you can get his
2 name straight, I might consider it.
3 MR. EARL: Are you or are you not? You
4 play this game. You did it at Ron Jones'
5 deposition also. You said, "I may or may not."
6 MS. PONZOLI: I do not play games over the
7 documents --
8 MR. EARL: Yes, you do.
9 MS. PONZOLI: -- Mr. Earl.
10 MR. EARL: Yes, you do.
11 MS. PONZOLI: You are the only one who
12 plays games over the documents, Mr. Earl. You
13 have withheld more --
14 MR. EARL: Raise your voice. Let the
15 record reflect Ms. Ponzoli is yelling.
16 MS. PONZOLI: Let the record reflect that
17 Mr. Earl has been raising his voice all day long
18 and I have been very patient about it.
19 MR. EARL: Not true.
20 MS. PONZOLI: He has a habit of intonation
21 that goes up, and I have been very patient with
22 it.
23 But I find it oppressive that --
24 MR. EARL: Are you going to provide this
25 document or --
666
1 MS. PONZOLI: Mr. Earl --
2 MR. EARL: -- not?
3 MS. PONZOLI: Well...
4 MR. EARL: Taking up the record with a lot
5 of pages here. Are you going to provide the
6 document or not?
7 MS. PONZOLI: Your client has endless funds
8 to play these games, so I guess it's not a
9 problem for you.
10 Dr. Maltby's work, I'm not going to hold it
11 back. You can get it through FOIA. Once it's a
12 final report, you can get it through FOIA.
13 MR. EARL: I want it for this witness.
14 MS. PONZOLI: This witness is not using it.
15 I will not promise that I will provide it
16 tomorrow.
17 I'm not refusing to provide it tomorrow. I
18 will not promise.
19 MR. EARL: Tell me what you're going to do
20 simply. Are you going to provide it?
21 MS. PONZOLI: I don't know about the
22 report. I don't know where it is. I don't know
23 what it says. How can I promise to provide it
24 tomorrow?
25 MR. EARL: Well, I'm not going to be able
667
1 to be here tomorrow. So if you provide it or I
2 obtain it later, I'm going to talk to this
3 witness about it.
4 MS. PONZOLI: No, sir.
5 MR. EARL: Yes, I am.
6 MS. PONZOLI: Your deposition ends
7 tomorrow.
8 MR. EARL: Um-hum.
9 MS. PONZOLI: No, sir. He is not relying
10 upon this. You cannot.
11 You can ask Dr. Maffei about it. You can
12 ask for it with Dr. Maffei and you can ask him
13 about it. But if this witness is not relying --
14 MR. EARL: Okay. Let's go ahead with the
15 deposition.
16 MS. PONZOLI: No. I'm sorry. I'm putting
17 my objection --
18 MR. EARL: If you want to give a speech --
19 MS. PONZOLI: I will, I will. I'm sorry.
20 I am patient with you beyond belief.
21 If this witness were relying upon
22 Dr. Maltby, then that would be a problem, but he
23 is not. Therefore, you had better finish with
24 this witness when we finish tomorrow.
668
1 BY MR. EARL:
2 Q. Okay. Let's look at request number 12.
3 You told me earlier this morning there was nothing
4 else you knew in response to that, correct? "Any and
5 all documents related to soil sampling/efforts, water
6 quality testing, soil deposition testing, atmospheric
7 deposition testing, and all related data and
8 reports."
9 A. To the best of my knowledge the answer is
10 yes.
11 Q. Okay.
12 Well, apart from whether they're in your
13 possession, tell me other than Dr. Matalby's work
14 what else exists out there?
15 MS. PONZOLI: Wait. It's Dr. Maltby,
16 M-a-l-t-b-y. It's very simple.
17 MR. EARL: I thought you didn't know about
18 it.
19 All of a sudden you know about it?
20 MS. PONZOLI: I know Dr. Maltby.
21 MR. EARL: And he's also worked in the
22 park, hasn't he?
23 MS. PONZOLI: I know Dr. Maltby and I know
24 how to pronounce his name and I think you do,
25 too, the same as you know Dr. Maffei's name and
669
1 you never get it right. It's insulting,
2 Mr. Earl.
3 MR. EARL: Um-hum.
4 BY MR. EARL:
5 Q. Other than this study we've just talked
6 about, now tell me what other studies or testing has
7 been done out there that you know about, not that's
8 in your possession or you haven't produced today.
9 A. Water Management District has done some
10 water sampling over near the ENR, but I don't know
11 whether --
12 Q. In the Loxahatchee?
13 A. Yeah, because the boundary goes outside
14 Water Conservation Area 1.
15 Q. Okay. Is that an ongoing program, a
16 one-shot?
17 A. I have no idea.
18 Q. Did you give them a permit for it?
19 A. Yes.
20 Q. Have you produced that permit today?
21 A. I don't know whether that permit was
22 produced last time or not. It is not produced today --
23 Q. Okay.
24 A. -- because I think it was produced before.
25 Q. For ENR sampling? I don't think I've seen
670
1 that.
2 A. No, I'm not talking for ENR sampling. I'm
3 talking about areas on the inside of Water
4 Conservation Area 1 adjacent to ENR.
5 Q. And when was that work done?
6 A. A couple years ago, started a couple of
7 years ago.
8 Q. And what were they sampling? Surface
9 water?
10 A. I --
11 Q. Water column?
12 A. I don't recall, Mr. Earl. I'd have to go
13 pull the permit and read what it allowed.
14 Q. I'm asking you in the last year. Let's
15 narrow it down. This is several years ago. Let's
16 make it narrow here.
17 In the last year, let's start out in the
18 list here, soil sampling, what soil sampling other
19 than what we've already talked about do you know has
20 gone on out there?
21 A. To the best of my knowledge, I don't recall
22 any other, Mr. Earl. I do not know all the details
23 of all the research and all the samples and the time
24 frame of when because we're a year between
25 depositions and I do not recall exactly what has been
671
1 done within what time frame.
2 Q. Well, other than what we've talked about
3 today, what other soil sampling do you know in work
4 order 32, what other soil sampling do you know that's
5 gone on out there?
6 A. Dr. Davis'.
7 Q. Okay. We talked about that.
8 What else?
9 A. Concurrent samples for us at the same time.
10 Q. By Dr. Jones.
11 A. Yeah -- well, by my staff.
12 Q. Okay. What else?
13 A. Continued work through Dr. Jones on the
14 transect.
15 Q. What transects?
16 A. Some transect data that was gathered on the
17 refuge.
18 Q. By who? When?
19 A. Started some years ago.
20 Q. Is this a continuation of the '72 work,
21 '75?
22 A. No, no, it wouldn't be a continuation of
23 any '72 or '75. This is after '88.
24 Q. Okay. Reported in work order 32?
25 A. Some of it may have been. There are soil
672
1 samples taken in work order 32.
2 MS. PONZOLI: Mr. Neely, I believe his
3 question is narrow. I believe he is only
4 talking about since your last deposition.
5 THE WITNESS: I do not know.
6 MS. PONZOLI: And I think you're ranging
7 over the whole time frame and then the record is
8 going to be unclear and Mr. Earl's going to come
9 back to me and say, "Ms. Ponzoli, where is
10 Dr. Jones' work in the last year?" da-da, da-da,
11 da-da, and I'm going to say, "Wait."
12 THE WITNESS: Well, I do not know. I
13 can't, I can't pin that down without going to
14 the files and looking, Mr. Earl.
15 BY MR. EARL:
16 Q. Dr. Jones has been continuing to work on
17 the transects, though, in the last year.
18 MS. PONZOLI: Are you sure in the last
19 year, Mr. Neely?
20 THE WITNESS: I am not sure within the last
21 year.
22 BY MR. EARL:
23 Q. What's the last time you're sure of that he
24 did that work?
25 A. I can't be specific on a time and date.
673
1 Q. I know that. But what general category of
2 time?
3 A. Within the last three to four years.
4 MS. PONZOLI: Dr. Jones produced all of his
5 soil work on the refuge, Mr. Earl.
6 MR. EARL: That's not what we're talking
7 about. We're talking about what this witness
8 knows about.
9 MS. PONZOLI: I understand. And I'm not
10 stopping you from asking him those questions,
11 but I'm telling you that you have anything that
12 Dr. Jones has done.
13 BY MR. EARL:
14 Q. Okay. Other than Dr. Jones' -- was he
15 doing soil sampling on those transects, as you
16 understand?
17 A. I do not remember.
18 Q. Okay. What other soil work has been done
19 in the last year?
20 A. EPA did some sampling under a permit, but I
21 don't know whether they took -- I think they took
22 soil samples also.
23 Q. Who was that, Mr. Scheidt?
24 A. Yes. I think that's been within the last
25 year.
674
1 Q. Where were those collected?
2 A. On the refuge.
3 Q. Okay.
4 A. I do not know site specific.
5 Q. Okay. Did you produce that permit today?
6 A. I didn't.
7 Q. Did you produce it at your last --
8 A. I do not recall, Mr. Earl.
9 Q. Okay. I don't think you did.
10 MS. PONZOLI: I don't think your
11 recollection is accurate since we have produced
12 documents that we did produce previously and had
13 to produce them a second time today.
14 MR. EARL: We did not see any work by
15 Mr. Scheidt, Ms. Ponzoli, at Loxahatchee the
16 last time.
17 MS. PONZOLI: Well, I'm sorry. You would
18 like to do Mr. Scheidt. You can get those
19 documents from him or you can get them from
20 Dr. Maffei. They're at the refuge. They would
21 be in his possession, not Mr. Neely's.
22 BY MR. EARL:
23 Q. Okay. Mr. Scheidt. Sampling in the last
24 year, soil sampling?
25 A. I think so. I'm not absolutely positive.
675
1 Q. I understand.
2 A. I know EPA did some sampling.
3 Q. What were they sampling for?
4 A. Mercury.
5 Q. Okay. Where did they sample, to your
6 knowledge?
7 A. I only know on the refuge.
8 Q. You have no idea where?
9 A. Site specific?
10 Q. Yes.
11 A. No.
12 Q. Was this soil, poor water? What were they
13 looking at?
14 A. I do not recall the details of the permit,
15 Mr. Earl.
16 Q. Okay. What else has been done with regard
17 to soils in the last year?
18 A. I can't recall anything else. I mean, if I
19 review of all the refuge files, I might be able to
20 find something, but I do not know specifically of
21 anything else.
22 Q. Any other permits you've issued in the last
23 year other than Mr. Scheidt at EPA for testing?
24 A. I just don't recall. I don't keep stuff
25 like that in my head. If I need to know it, I go to
676
1 the files and pull it out or have someone else pull
2 it for me.
3 Q. Okay. What other water quality testing has
4 taken place in the last year?
5 A. The Water Management District that I talked
6 about, I think they did some water collections, but
7 it was under a permit that I think was issued before
8 my last deposition.
9 Q. Okay. So it's a continuation of the
10 sampling over by the ENR.
11 A. Yes, sir.
12 Q. Okay. What else?
13 A. They may have done some soil sampling. I
14 am not absolutely certain.
15 Q. Okay. What else? Any other water quality
16 sampling?
17 A. None that I can recall that were, that were
18 done within the last year. I just -- I mean, I just
19 don't keep up with that stuff in my memory.
20 Q. Okay. How about soil deposition testing?
21 A. None that I know of.
22 Q. Any been done out there at all that you
23 know about?
24 A. None that I know of.
25 Q. Okay.
677
1 A. It may have been done, but I don't know of
2 it.
3 Q. How about atmospheric deposition testing?
4 A. We've done some rainfall collection. The
5 refuge has done some rainfall collection within the
6 last year.
7 Q. How many sampling units were put out?
8 Four?
9 A. I don't know. It's described in one of
10 these documents right here. I think there's four
11 sampling stations.
12 Q. And what's the purpose of those?
13 A. Four wet and dryfall collectors.
14 Q. And what's the purpose of that work?
15 A. To measure wetfall and dryfall.
16 Q. For what purpose?
17 A. For nutrient loading.
18 Q. And how long has that network been in
19 operation?
20 A. Well, the first one was installed in
21 February of '93.
22 Q. Um-hum.
23 A. And then there were some that were
24 installed in March of '93.
25 Are you waiting on me?
678
1 Q. Sure. Happy to wait.
2 MS. PONZOLI: What is the pending question?
3 THE WITNESS: I don't have any that I know
4 of.
5 MS. PONZOLI: Would you read back the
6 pending question? Mr. Neely didn't realize
7 Mr. Earl was waiting on him.
8 (Thereupon, a portion of the record
9 was read by the reporter.)
10 THE WITNESS: And I answered.
11 BY MR. EARL:
12 Q. No. You told me the first one went out in
13 February '93, March '93 several went out, and then
14 you started looking through the document.
15 A. Well, that was the end of my question -- or
16 my answer.
17 Q. So it's been in operation since March of
18 '93?
19 A. Yes, sir.
20 Q. And who's in charge of that?
21 A. Dr. Maffei.
22 Q. And what have the results of that been so
23 far?
24 A. I have not seen the results. I do not
25 know.
679
1 Q. What other testing has gone on out there in
2 the last year?
3 A. I can't think of any other, Mr. Earl.
4 There may have been some that I'm not aware of or
5 there may be some that I can't remember, but I don't
6 recall any.
7 Q. Has Dr. Jones or FIU staff done anything
8 other than what we've talked about already?
9 A. They are working with us on preparing, on
10 doing the water samples, the split samples we do and --
11 Q. Split samples with who, sir?
12 A. That Dr. Davis' collecting.
13 Q. We talked about that already. Yes.
14 A. And under the, we have a research contract
15 with FIU to work with us on the dosing study, but I
16 don't think any activity has been done this year.
17 Q. Okay. What else has Dr. Jones done in the
18 last year?
19 A. From the refuge? That's all that I know
20 of.
21 Q. Okay. What is the status of the FIU dosing
22 study as it relates to the refuge?
23 A. It has not been initiated yet. It's still
24 in the planning stages with the Water Management
25 District.
680
1 Q. When do you anticipate that will get
2 started?
3 A. I don't know.
4 Q. Who's in charge of that?
5 A. Dr. Maffei is in charge from our part, but
6 I think the water -- the TOC is involved since it's
7 research within the area.
8 Q. Who's going to actually perform the work at
9 Loxahatchee?
10 A. Probably Dr. Jones in conjunction,
11 utilizing some of the refuge staff. Or FIU. I don't
12 know whether Dr. Jones personally will do it.
13 Q. Okay. Anything else that Dr. Jones is
14 doing?
15 A. Not that I know of.
16 I mentioned the analysis of the rainfall.
17 Q. That Dr. Jones is doing?
18 A. FIU.
19 Q. I missed that part. FIU is doing an
20 analysis of the rainfall.
21 A. In those collector stations we were talking
22 about awhile ago.
23 Q. Oh. I didn't understand that.
24 Okay. So Loxahatchee has set up the four
25 collector stations.
681
1 A. Yes, sir.
2 Q. And FIU's doing the analysis.
3 A. Running the analysis on water sample -- on
4 the rainfall.
5 Q. What are they analyzing it for?
6 A. Sir?
7 Q. What are they analyzing it for?
8 A. I don't know all the parameters.
9 Q. Well, what are some of the parameters you
10 know about?
11 A. One's phosphorus.
12 Q. Okay. Mercury?
13 A. I don't think they're doing mercury. I'm
14 not absolutely certain on that, but I don't think
15 they're set up to do mercury.
16 Q. What other than phosphorus that you know
17 about?
18 A. I don't know the other parameters.
19 Q. Who would know that, Dr. Maffei?
20 A. Dr. Maffei or even one of the biologists
21 that participates in the sample collection.
22 Q. Who is that?
23 A. Su Jewell is one, Fred Broerman's another,
24 and then Biotech Bill Thomas.
25 Q. Okay. Dr. Jones.
682
1 Any other work that FIU has done in the
2 last year?
3 A. Not that I know of.
4 Q. Any other work that FIU is scheduled to do
5 out there in the next year?
6 A. Hopefully the dosing study work.
7 Q. Okay.
8 A. Continuation of the analysis of the
9 rainfall.
10 Q. Okay.
11 A. We're talking about I guess the year we're
12 in now, aren't we? Are we talking about the year
13 we're in next year --
14 Q. Next year going forward.
15 A. -- or '95?
16 Q. Next year going forward. This calendar
17 year.
18 A. I don't know whether there's anything left
19 to do analysis on from Dr. Davis' work. I think
20 that's all been done.
21 Q. You said '95.
22 Anything scheduled for '95 we haven't
23 talked about?
24 A. Not that I know about. Continuation of the
25 dosing study and probably continuation of the
683
1 rainfall analysis.
2 Q. Are you aware of a request by Sugarcane
3 League and U.S. Sugar to do some additional entry and
4 access into the refuge?
5 A. Yes, sir. There's the Rick Burgess
6 memorandum?
7 Q. Yes.
8 A. Yes, sir.
9 Q. And what is the status of that? Have you
10 reviewed that?
11 A. The status is still under review simply
12 because I've been trying to gather data to see what
13 the effect, if there would be any adverse effects.
14 Q. Adverse effects from what on what?
15 A. From the entry methods to the wildlife.
16 We're entering a critical stage here of the beginning
17 of the nesting season.
18 Q. And we're talking about the areas along the
19 canal, are we not?
20 A. I don't think so.
21 Q. What areas are they talking about?
22 MS. PONZOLI: Mr. Earl, you have the letter
23 in front of you. If you'd like to share it with
24 him, you can. I mean, you know what you're
25 asking.
684
1 MR. EARL: He brought the letter with him.
2 THE WITNESS: I've got my own copy.
3 MS. PONZOLI: Okay. Why don't you pull it
4 out.
5 Mr. Earl, while he's looking at that, let
6 me remind you that you noticed Mr. Neely in your
7 Neely Number 10 for both today and tomorrow, so
8 I suggest that you be here tomorrow if you have
9 more examination you wish to do.
10 THE WITNESS: I don't think this specifies
11 site other than additional sites.
12 MS. PONZOLI: Do you have a more recent
13 correspondence, Mr. Earl?
14 BY MR. EARL:
15 Q. What letter do you have there?
16 A. February the 8th.
17 Q. That's the letter I have, yes.
18 A. Access by helicopter.
19 MS. PONZOLI: Mr. Earl, I think you must be
20 aware that we have presently indicated to the
21 Co-op that their helicopter entry would be
22 disruptive of the wildlife. You're not being
23 treated differently.
24 BY MR. EARL:
25 Q. Now, this letter from Mr. Burgess talks
685
1 about an additional six to seven sediment samples
2 from the refuge; is that correct?
3 A. Six to ten.
4 Q. Six to ten, you're right. Is that correct?
5 A. I don't know. That's what --
6 Q. He specified six to ten.
7 A. Six to ten sediment samples utilizing the
8 same procedures.
9 MS. PONZOLI: Would you like to attach the
10 letter, Mr. Earl?
11 MR. EARL: We can do that, but I just want
12 to ask questions about Mr. Neely's
13 understanding.
14 MS. PONZOLI: Do you have locations to
15 share with him?
16 MR. EARL: Yes.
17 BY MR. EARL:
18 Q. Now, Mr. Burgess references three
19 additional locations along the existing east to west
20 transect along which we sampled during our entry and
21 access.
22 A. Is that in addition to the six to ten?
23 Q. No. It's six to ten at those three
24 additional locations, as I understand.
25 You know where, generally where that
686
1 transect was, don't you?
2 A. Yes, it was the one I was referring to
3 awhile ago.
4 Q. When you referenced Dr. Jones?
5 A. Yes.
6 Q. Okay. Is he still doing ongoing sampling
7 on those transects?
8 A. No.
9 Q. When did he stop?
10 A. I don't know exactly.
11 Q. Did he continue after the entry and access
12 by Dr. Davis?
13 A. No, I think all his work was done before
14 Dr. Davis.
15 Q. Okay.
16 A. It keeps saying, "In addition, we'd like to
17 sample three additional stations along the
18 north-south --"
19 Q. North-south transect, yes, starting at
20 10-C.
21 A. Additional samples, six to ten sediment
22 samples.
23 Q. Well, they want the east-west and they want
24 the north-south transect.
25 A. Okay.
687
1 Q. Okay?
2 Now, tell me what, at the actual transect
3 sites what's going to be disrupted?
4 A. Could be nesting birds.
5 Q. Is there? Let's start with the east-west
6 contract.
7 A. I have not personally gone out and looked,
8 Mr. Earl. This is under review, as I said awhile
9 ago.
10 Q. Have you sent somebody out to look as we
11 sit here today?
12 A. They have been instructed to give me an
13 analysis of the impacts of this additional sampling
14 by helicopter, and I think our intent at this point
15 was that the helicopter could be detrimental simply
16 because we have a lot of wildlife beginning to nest.
17 Q. Okay. So...
18 A. It's not just at the particular sites; it's
19 to and from the sites.
20 Q. Okay. But I want to start off with the
21 sites.
22 The east-west transect, you don't know
23 whether there's anything there --
24 A. I personally don't.
25 Q. -- nesting.
688
1 Okay. The north-south, do you know whether
2 there's anything there?
3 A. I personally don't.
4 Q. Have you seen any analysis or talked to
5 anybody?
6 A. I have not seen any analysis.
7 Q. Who's in charge of that?
8 A. Dr. Maffei. He's in charge of collecting
9 the data.
10 Q. Okay. Can those areas be accessed by other
11 means other than helicopter, airboats or boat?
12 A. Possibly by airboat. I'm not sure about
13 boats.
14 Q. Okay. Would you have an objection to using
15 airboats?
16 A. I may if there's a rookery near one of the
17 sites --
18 Q. Okay.
19 A. -- or a kite nest or something, some
20 activity.
21 Q. Within what?
22 A. I can't give you a specific parameter.
23 Q. What's your criteria --
24 A. Simply because I've got to see the data to
25 analyze it and have a biological opinion from my
689
1 staff as to what they think the effects might be and
2 then I'll form my, my opinion and render a decision.
3 Q. What data do you need to see?
4 A. Sir?
5 Q. What data do you need to see?
6 A. If there -- where there have been any
7 roosting sites in relationship to these samples,
8 sampling sites.
9 Q. Okay. And in what proximity would you be
10 troubled?
11 A. Well, it would depend on what the species
12 is --
13 Q. Okay. Let's talk about --
14 A. -- and the volume, and the volume of
15 nesting.
16 Q. What species would you anticipate to be at
17 these locations? Ibis?
18 A. Any number of wading birds plus Everglades
19 kites. There could be red-shouldered hawks. There
20 could be anything.
21 Q. Are there known kite?
22 A. We had kite nests on the refuge last year.
23 Q. I understand that.
24 Are there any this year?
25 A. It's right on the verge of them starting.
690
1 No, we have not done a complete survey.
2 That's what they are trying to gather data for now.
3 Q. Have you banned all other helicopter access
4 to the Loxahatchee during this time period?
5 A. On landings, yes.
6 Q. What are you allowing? You say landings,
7 yes.
8 What else are you allowing?
9 A. We're not allowing landings.
10 Q. That includes Dr. Jones or federal
11 government researchers also.
12 A. At this point it does.
13 Q. What's the last helicopter that's landed
14 out there that you know about?
15 A. That I know about?
16 Q. Yes.
17 MS. PONZOLI: Maybe you should tell us.
18 THE WITNESS: I'm sorry if I had to laugh
19 on that.
20 But I'm, I don't recall specifically the
21 last one.
22 BY MR. EARL:
23 Q. Well, in the last month?
24 A. I think the last one was when the Water
25 Management District landed and knocked a tail rotor
691
1 off which would have been January. I can't remember
2 whether it was December or January. It was shortly
3 after we left Washington.
4 Q. What were they doing out there?
5 A. They were doing some sampling.
6 Q. Okay. Have you banned their helicopters?
7 A. As far as I know we have.
8 Q. Well, if you don't know, who would know?
9 A. Well, as far as I know we have. That was
10 my answer.
11 Q. Okay.
12 A. The answer is yes.
13 Q. Okay. And when will this nesting season be
14 over?
15 A. Well, it could -- it depends on the weather
16 and the number of birds that nest. It could run as
17 long as May. Might even go into June if you have a
18 wet spring like we're starting to have now.
19 Q. Did you have a similar ban last year?
20 A. I don't recall that we had a ban and I
21 don't recall if we had flights that were in conflict
22 with it other than the entry by the Sugar Cane
23 League.
24 Q. There were other helicopters coming in and
25 out of there, weren't there, in the last --
692
1 A. Landing?
2 Q. Yeah.
3 A. No, sir. Only the Water Management
4 District and Sugar Cane League land.
5 Q. And what time period does that encompass?
6 A. You mean that they've been doing that?
7 Q. Yes.
8 A. For probably the last couple, couple of
9 years. Maybe within the last three. I'm not
10 absolutely certain on the time frame.
11 Q. This is the Water Management District?
12 A. No, this is Sugar Cane League and, and the
13 Water Management District. I don't think -- probably
14 within the last two.
15 Q. Okay. Your testimony is that within the
16 last year no federally chartered helicopters --
17 A. Within the last year?
18 Q. Within the last year no federally chartered
19 helicopters have landed up there?
20 A. I don't recall, Mr. Earl. I'd have to
21 check and see.
22 Q. Okay.
23 MS. PONZOLI: I don't think that's
24 relevant, Mr. Earl.
25 THE WITNESS: But the time of year is what
693
1 determines whether --
2 BY MR. EARL:
3 Q. Tell me what time of year is critical here
4 in terms of your concerns about wading birds.
5 A. I would say starting in mid to late
6 February through the end of the nesting season.
7 Q. February to end of what?
8 A. I beg your pardon?
9 Q. Starting in mid February?
10 A. Mid to late February.
11 Q. Okay. Till when?
12 A. Depending on when the birds start nesting
13 which is dependent upon the weather --
14 Q. Okay.
15 A. -- and running through the end of May,
16 possibly into June.
17 Q. Okay. Last year from February to June did
18 you have a similar ban in effect?
19 A. I don't recall that we had any request
20 other than Mr. Davis' helicopter landing.
21 Q. Did you have a ban in effect?
22 A. If there's no request, there's no need to
23 have a ban.
24 No, we did not have a ban because we
25 allowed the League to land.
694
1 Q. Okay. Between February to June of last
2 year did the Water Management District land its
3 helicopter out there?
4 A. Not that I know of.
5 Q. And you would know about it if they did?
6 A. No, not necessarily.
7 Q. So they weren't doing any sampling that
8 you're aware of between --
9 A. There's been a lot of helicopters landed
10 out there I didn't know about, Mr. Earl.
11 Q. Okay. I'm asking about the Water
12 Management District helicopter.
13 A. I do not know if the Water Management
14 District landed their helicopter or not, just like I
15 don't know if the Sheriff's Office landed theirs out
16 there or not.
17 Q. The who?
18 A. The Sheriff's Office.
19 Q. What does that have to do with anything?
20 A. Well, you asked me about helicopters. I
21 don't know of all the helicopters landing on that
22 refuge.
23 Q. Okay.
24 Well, did you have a permit in effect for
25 the Water Management District this period last year
695
1 where they could go in there with helicopters?
2 A. I don't recall.
3 I do know that they did some airboat work,
4 but I don't recall what period of time it was. I do
5 not know if there was a helicopter landing on the
6 refuge during this time last year other than probably
7 the League's.
8 Q. And you're talking about John Davis doing
9 the sampling.
10 A. Yes.
11 Q. And you had your personnel aboard; is that
12 correct?
13 A. That's correct.
14 Q. Were there any birds disrupted?
15 A. I do not know, Mr. Earl. That was, that
16 entry was over my objection.
17 Q. Your testimony is is as you sit here you
18 did not get any reports from your staff who was along
19 with Dr. Davis during their landing last year of any
20 disturbance of wading or nesting birds?
21 MS. PONZOLI: I object to the form of the
22 question. I think it's argumentative and I
23 think you've come to a conclusion that you
24 haven't bothered to ask him a question about.
25 You may answer.
696
1 BY MR. EARL:
2 Q. Have you gotten any reports from your staff
3 during the Davis visits last year of any interference
4 with birds?
5 A. I didn't request any, so therefore I didn't
6 get any.
7 Q. If there had been a significant
8 interference, wouldn't you expect your staff to
9 notify you?
10 A. I would expect that.
11 Q. Did they?
12 A. They did not.
13 However, under that forced entry they were
14 under the impression that it was a court ordered
15 entry.
16 Q. Didn't you grant a permit for that? Didn't
17 you issue a permit?
18 A. We issued a permit --
19 Q. Okay.
20 A. -- based upon the court order. I would not
21 have issued the permit if there had not been a court
22 order.
23 Q. But you agreed to intervene in the SWIM
24 litigation, did you not?
25 MS. PONZOLI: Mr. Earl, you are arguing
697
1 with this witness.
2 MR. EARL: No, I'm not. I'm taking him to
3 his next...
4 He wants to get out these little tales. I
5 want to get out the other part of it.
6 If you intervene in litigation --
7 MS. PONZOLI: Mr. Earl --
8 MR. EARL: Let me finish.
9 If you intervene in litigation, part of it
10 is you're subject to discovery and you're
11 subject to testing and inspection.
12 He says he objected to it.
13 BY MR. EARL:
14 Q. You did authorize interference, did you
15 not?
16 MS. PONZOLI: Mr. Earl, that was not an
17 agreed entry. You know that we objected to that
18 entry. You were granted the entry.
19 MR. EARL: You granted a permit.
20 MS. PONZOLI: Mr. Earl, let me finish.
21 You had more than the entry you were
22 originally granted. You have had a substantial
23 entry onto the refuge, and you are now asking
24 for even more at a critical time of the year.
25 I think it's wrong to argue with this
698
1 witness. He does not have his biological report
2 back. You can question the biologist who will
3 issue the biological report when you take his
4 deposition. And that would be a fair way to do
5 it, not to argue with the refuge manager.
6 BY MR. EARL:
7 Q. You've asked for a biological report from
8 whom?
9 A. From Dr. Maffei, an evaluation of the sites
10 that were provided, the potential landing sites.
11 Q. Have you asked for an evaluation of the
12 transect sites?
13 A. That was the potential landing sites, I
14 thought.
15 Q. Okay. You're using the term synonymously.
16 A. We're talking about a helicopter entry.
17 And I'm not absolutely certain, but I think
18 that after the initial request we said we needed to
19 know exactly where, and I think that a map was
20 furnished that shows where -- I'm not absolutely
21 certain on that.
22 MS. PONZOLI: I think that's the
23 Cooperative, Mr. Neely.
24 THE WITNESS: Oh. Is that the Cooperative?
25 Well, see, I -- it got more entry than I even
699
1 knew.
2 BY MR. EARL:
3 Q. Okay. What criteria have you requested
4 that this report consider in evaluating?
5 A. Any nesting activity within the landing
6 sites or areas of approach to the landing sites
7 adjacent to, any biological opinion that would
8 prohibit or have a detrimental impact, that would
9 demonstrate a detrimental impact by agreeing to this
10 additional entry.
11 Q. Okay. And when is that due?
12 A. Whenever they finish it. As quickly as
13 they can.
14 Q. When have you asked it to be done?
15 A. I have not asked for a date certain.
16 Q. Are you going to make the final decision on
17 that?
18 A. Yes, I will. Or maybe the hearing officer
19 will.
20 MS. PONZOLI: No, Mr. Neely. I'm sorry.
21 That may not be the case. I don't want to
22 deceive anyone.
23 MR. EARL: 22.
24 (The document was marked
25 Exb. No. 22.)
700
1 BY MR. EARL:
2 Q. I hand you now a map which purports to
3 illustrate the extent of the west side fire number
4 4103 on Arthur R. Marshall Loxahatchee National
5 Wildlife Refuge which burned from May 11 through
6 May 16th, 1989.
7 Have you ever seen this before?
8 A. Yes, sir.
9 Q. And what is it?
10 A. It's a map that illustrates the west side
11 fire graphically.
12 Q. Is this the --
13 A. General terms.
14 Q. Excuse me.
15 Is this the one you talked about 40,000
16 acres?
17 A. Yes, it's 40, 41, somewhere. I don't know,
18 I don't remember the exact acreage. In excess of 40.
19 Q. Did this burn right down to the canal, did
20 it?
21 A. Sir?
22 Q. Did it burn right down to the canal?
23 A. You mean along the L-7?
24 Q. Yes.
25 A. I don't recall. Most of the time it
701
1 stopped short. There were wet spots and pockets
2 along the canals. That wasn't a clean burn over that
3 entire area.
4 Q. Okay. And did peat burn?
5 A. I would imagine that some of the surface of
6 peat. But we saw -- we had a peat burn, the only
7 significant peat burn I saw was in two or three
8 little isolated areas kind of down on the lower
9 southwest corner where peat had been piled up as a
10 result of construction of the L-7 canal. That's the
11 only --
12 Q. Is this what you talked to me earlier about
13 the berm which was damaged?
14 A. That's one of them.
15 Q. So it burned down in the berm?
16 A. Yes.
17 And there were some other minor, minor peat
18 burns in that berm along the edge of the L-40 canal,
19 but very, these were very minor.
20 Q. When you say significant burn, peat burn,
21 what do you mean?
22 A. In that we had peat smoking and burning
23 after the fire was out which lasted about two to
24 three days 'cause we had some rainfall after that.
25 Q. Is this the most significant fire during
702
1 your tenure at Loxahatchee?
2 A. Yes, sir, this is the largest fire.
3 Q. Have you had fires with more significant
4 peat burn than this?
5 A. No, sir.
6 Q. Let me hand you a satellite image and ask
7 you does that also depict the burn you've just
8 described?
9 A. This is a photo of a satellite image.
10 Q. Have you ever seen that before?
11 A. I don't know the date on this.
12 Q. I understand that.
13 Have you ever seen it before?
14 A. No, sir.
15 Q. Does that appear to depict the same burn
16 area, the discolored area?
17 A. To some extent, not all -- it's not quite
18 clear all of it. I can certainly see the line that
19 corresponds with this general area across here.
20 Q. Based on what you know, does that appear to
21 be the same area that you've described in this
22 Exhibit 22?
23 MS. PONZOLI: I'm going to object to
24 Mr. Neely having to interpret your satellite
25 image without a date or any confirmation of what
703
1 it is. It's clear to any lay person looking at
2 that satellite image that it has a similar form.
3 But what it is and what it means I --
4 THE WITNESS: I --
5 MS. PONZOLI: -- I object to Mr. Neely
6 having to interpret.
7 THE WITNESS: And I cannot based on the
8 quality of this and this sporadic burn down in
9 this, down at the very bottom, I can't say that
10 this, either this accurately depicts this or
11 this accurately depicts that.
12 BY MR. EARL:
13 Q. "This" being Exhibit 22?
14 A. Yes.
15 Q. And the other being the satellite image.
16 A. (Witness nodding head up and down).
17 THE COURT REPORTER: Your answer?
18 THE WITNESS: Yes.
19 BY MR. EARL:
20 Q. Okay. Since your last deposition have you
21 come across any other additional information we
22 didn't talk about today that you'll rely on in
23 forming your opinions or in testifying?
24 A. The data that I saw concerning Dr. Davis'
25 work.
704
1 Q. Okay. You've referenced that several
2 times.
3 Anything else?
4 A. No, sir.
5 MR. EARL: Why don't we take like a
6 ten-minute break and I think it will speed up my
7 conclusion here.
8 MS. PONZOLI: Okay.
9 (Thereupon, a recess was taken from
10 4:15 p.m., until 4:27 p.m.)
11 MR. EARL: Let's go back on the record.
12 MS. PONZOLI: Mr. Earl, we phoned on the
13 break to inquire about where Dr. Maltby's
14 documents might be, and they were where I think
15 Mr. Neely had indicated. They were collected
16 and produced among Dr. Maffei's documents, his
17 updated documents, which have been transferred
18 to my office and I guess will be produced with
19 Dr. Maffei's documents.
20 MR. EARL: When are we going to get those,
21 counsel?
22 MS. PONZOLI: Well, you've got the bulk of
23 Dr. Maffei's documents --
24 MR. EARL: The old documents, yeah.
25 MS. PONZOLI: -- for a year now.
705
1 Three weeks prior, whenever that is, you're
2 entitled to them. Is that now? I don't think
3 it is.
4 MR. EARL: Well --
5 MS. PONZOLI: Mr. Neely has never seen
6 those documents. They are not in his
7 possession. They haven't been in his possession
8 and he's never seen them.
9 MR. EARL: Well, can you make them
10 available?
11 MS. PONZOLI: You mean tomorrow? You want
12 me to go back to my office --
13 MR. EARL: No, I --
14 MS. PONZOLI: -- when I go home from West
15 Palm Beach tonight and look for, among
16 Dr. Maffei's documents look for Dr. Maltby's.
17 MR. EARL: Well, will you make them -- when
18 are you returning -- would you make them
19 available, that document available?
20 MS. PONZOLI: Yeah, I'll make that document
21 available.
22 MR. EARL: Can you give me a date?
23 MS. PONZOLI: When I review Dr. Maffei's
24 documents which would be Thursday or Friday of
25 this week I will make Dr. Maltby's available.
706
1 MR. EARL: So we're going to get it when we
2 get, okay, the rest of his documents.
3 MS. PONZOLI: Is that when Dr. Maffei's are
4 due, the end of this week?
5 MR. EARL: I don't know.
6 MS. PONZOLI: Well, I'm agreeing to produce
7 Dr. Maltby's.
8 MR. EARL: When Maffei's documents are due,
9 you'll produce them.
10 MS. PONZOLI: Yes, that's fine.
11 MR. EARL: Three weeks before.
12 BY MR. EARL:
13 Q. Okay. Mr. Neely, we talked about FIU.
14 Does the University of Florida have any
15 continuing projects in Loxahatchee?
16 A. No, sir.
17 Q. Is work order 32 now complete?
18 A. Yes.
19 Q. And I saw on the '92 annual report dated
20 5-4-93 that you recite that you had received the
21 final, it says the final report on work order 32?
22 A. Yes, sir, that was some time ago. It was
23 furnished to you in my first deposition.
24 Q. Okay. That's what I want to make...
25 There's nothing after that --
707
1 A. No, sir.
2 Q. -- correct?
3 Is that correct?
4 A. That's correct.
5 Q. Okay. How about the GIS data? The annual
6 report references a lot of GIS data that the
7 University of Florida developed.
8 Does the Loxahatchee have that?
9 A. Yes, sir.
10 Q. Yes?
11 A. Yes, sir.
12 Q. Okay. Has that been turned over also?
13 A. As far --
14 MS. PONZOLI: Mr. Earl, we have turned over
15 everything we have in regard to work order 32.
16 We have fought about this for years, and for
17 years I have told you that I would give you
18 everything that we have.
19 MR. EARL: I don't know about the GIS,
20 counsel. I'm asking about --
21 MS. PONZOLI: We gave you everything we had
22 in regard -- you can ask by categories.
23 MR. EARL: Let me ask him.
24 MS. PONZOLI: But he doesn't really know.
25 Dr. Maffei knows. So I --
708
1 MR. EARL: Now that you've told him that,
2 he probably certainly won't answer my question.
3 MS. PONZOLI: Well --
4 MR. EARL: Let me just ask him a couple of
5 questions.
6 MS. PONZOLI: Ask him all you want.
7 BY MR. EARL:
8 Q. In what form and where is this GIS? Do you
9 have it in a computer at the Loxahatchee?
10 A. Yes, sir, I think it was referenced in
11 here, some of it, in one of these documents that we
12 were looking at earlier today.
13 Q. Right.
14 A. I don't remember which one, but it's
15 referenced in there.
16 Q. Well, where is it at Loxahatchee? In whose
17 computer?
18 A. Dr. Maffei's.
19 Q. Computer?
20 A. Yes, sir.
21 Q. Have you looked at that, some of the
22 projections?
23 A. Yes, sir.
24 Q. Okay. To your knowledge have you produced
25 that for us?
709
1 A. Me?
2 Q. Yes.
3 A. No, sir, I haven't produced it for you.
4 Q. Has anybody else, to your knowledge?
5 A. I think Dr. Maffei has produced it for you.
6 MS. PONZOLI: I think also the Refuge has
7 produced it in response to FOIA requests.
8 THE WITNESS: I'm pretty sure we did
9 because there was a lot of confusion over the
10 tapes and how to run them and how to manipulate
11 that data or how to utilize it. There was a lot
12 of discussion on that a year or so ago.
13 BY MR. EARL:
14 Q. Where you had the claim of proprietary?
15 MS. PONZOLI: That was not by the Refuge.
16 That was by the University of Florida.
17 MR. EARL: Cooperative service.
18 MS. PONZOLI: And I understand the
19 university has dropped those claims, isn't that
20 true, Mr. Earl?
21 BY MR. EARL:
22 Q. Okay, Mr. Neely. Is Dr. Kitchens doing
23 anything else?
24 A. No -- doing anything else? I have no idea.
25 Q. In relation to Loxahatchee.
710
1 A. No, sir.
2 Q. Have they submitted any proposals?
3 A. To Loxahatchee?
4 Q. Yeah.
5 A. No, sir.
6 Q. Dr. Reddy doing anything else on
7 Loxahatchee that you know about?
8 A. Not that I know of.
9 MR. EARL: Okay. We need to mark the '92
10 report.
11 THE COURT REPORTER: That will be 23.
12 MS. PONZOLI: Are we going to make it all
13 one exhibit or two separate exhibits?
14 MR. EARL: I combined mine if we want to
15 make it pages, cover page through page 30.
16 MS. PONZOLI: Okay. And you're removing
17 the fax sheets?
18 MR. EARL: Um-hum.
19 (The document was marked
20 Exb. No. 23.)
21 BY MR. EARL:
22 Q. Hand you 23, sir.
23 A. All right.
24 Q. Tell me what it is, please.
25 A. This is the 19, calendar year 1992 Annual
711
1 Narrative Report for Loxahatchee National Wildlife
2 Refuge consisting of the cover page, the
3 introduction, the index and pages 1 through 30.
4 Q. Okay.
5 Now, this is the one that was actually
6 filed up in Atlanta?
7 A. Yes, sir, this is the signed version.
8 Q. Okay. Page 5, if you would, sir.
9 A. Okay.
10 Q. Last paragraph.
11 A. All right, sir.
12 Q. Second to the last sentence, four lines
13 from the bottom.
14 A. All right.
15 Q. "While the water quality data was dated,
16 the spatial and temporal trends revealed are probably
17 valid. The numbers cited in the water quality
18 section should not be considered absolute numbers or
19 used for statistical comparisons."
20 A. I don't know what we're referring to here.
21 Q. Well, the beginning of the paragraph refers
22 to, "An evaluation of refuge habitats and
23 relationships to water quality, quantity and
24 hydroperiod."
25 A. Right. That's the work order 32.
712
1 Q. Correct.
2 Now, why shouldn't the numbers be used for
3 statistical comparisons?
4 A. I don't know, sir. I'm not a statistician
5 and I didn't write that document.
6 Q. Again, Dr. Maffei did?
7 A. Yes, or it will say in the end who wrote
8 it. I'm not sure whether Maffei wrote it or one of
9 the other biologists.
10 Q. Okay. We don't have the end,
11 unfortunately.
12 A. We don't have the end, right.
13 Q. But you think he'd be able to answer that
14 for me.
15 A. Yes, sir.
16 Q. Okay. Page 7, if you would.
17 A. Okay.
18 Q. Last paragraph talks about, "A dosing study
19 will be established within the marsh during 1993."
20 We mentioned that. "A team of researchers is
21 currently being assembled to accomplish this work."
22 Who is on that team?
23 A. I do not know the names of the people on
24 there.
25 Q. Who from your organization?
713
1 A. Dr. Maffei.
2 Q. Okay.
3 A. I don't know whether he will be on the team
4 or not. I think the, that FIU is assembling the
5 team. I'm not sure how that's being handled at this
6 point.
7 Q. Second paragraph from the bottom says --
8 and they are talking about the wetfall/dryfall
9 collectors we talked about.
10 A. Water samples collected from 14 stations.
11 No, sir.
12 Q. No, they're talking about the 14 interior
13 marsh stations --
14 A. Right.
15 Q. -- correct --
16 A. Yes, sir.
17 Q. -- in December.
18 "Samples will be collected monthly.
19 Analysis of these samples was not completed prior to
20 the end of the year."
21 Are you referencing the John Davis --
22 A. Yes, sir.
23 Q. -- Ron Jones?
24 A. We collected those samples at the same time
25 that Dr. Davis did.
714
1 Q. And that analysis is now complete, as I
2 understand it, correct?
3 A. Yes, sir.
4 Q. When I say "that analysis," I mean
5 Dr. Jones' analysis, correct?
6 A. I assume. I don't know whether it's
7 complete or not.
8 I know that Dr. Davis' is complete.
9 Q. Okay. Page 8 --
10 A. Okay.
11 Q. -- references a study of mercury
12 concentrations in largemouth bass and other fishes.
13 A. Yes, sir.
14 Q. The last paragraph states, "All locations
15 that were sampled appear to provide environments
16 conducive for accumulation of mercury in largemouth
17 bass and other fish species."
18 What do they mean by that, do you know?
19 A. No, sir, I don't know.
20 Q. Okay. Page 28.
21 A. Okay.
22 Q. Last two sentences of the last paragraph,
23 "Surveys conducted in 1980 indicated that the exotic
24 tree had infested over 1.5 million acres of the
25 Everglades. More recent surveys indicate that the
715
1 tree," and I believe they're referencing melaleuca,
2 "now infests close to 3 million acres."
3 You agree with that?
4 A. I don't agree or disagree. I don't know
5 where those figures came from. I couldn't verify
6 them.
7 Q. So I'd have to talk to Dr. Maffei about
8 that?
9 A. Or whoever wrote this section.
10 Q. You told me earlier you didn't disagree
11 with the 1.5 million acres when we talked about it in
12 another document.
13 Have you changed your view of that?
14 A. No. It's, it's an estimate. I don't know
15 how they come up with that number, but I can't
16 disagree with it because I don't know what data they
17 used and how they came up with it.
18 Q. Page 29, sir.
19 A. Okay.
20 Q. Last paragraph, "Another method employs the
21 use of an herbicide called Spike."
22 Are you aware of the use of Spike on the
23 refuge?
24 A. Yes, sir.
25 Q. Is that a broadcast pesticide?
716
1 A. Yes, sir.
2 Q. You actually put it on the ground, don't
3 you?
4 A. Yes, sir, on dry, on dry ground.
5 Q. Have you done any studies to determine
6 whether there's runoff of that or groundwater
7 contamination from that pesticide?
8 A. No, sir, we haven't done any studies.
9 Q. Any label restrictions that would cause you
10 to --
11 A. All label restrictions are followed.
12 Q. I understand that.
13 But are there any label restrictions
14 relating to use in wetlands?
15 A. Yes, sir, in standing water.
16 Q. Not to use it in standing water?
17 A. Yes, sir.
18 Q. How long does it take to...
19 A. I don't know the exact life of it.
20 Q. Who would know that in your staff?
21 A. Probably the folks that are putting it out
22 or Dr. Maffei may know it since he's in charge of the
23 chemical program or it would be on the label.
24 Q. Now, I don't have table 4, page 31 which
25 provides an accounting of chemicals used with totals.
717
1 A. That's right.
2 Q. Would you know what that is?
3 A. No, sir.
4 Q. And we'll have that tomorrow, correct?
5 A. (Witness nodding head up and down).
6 Q. Okay. I will not be able to be here, so
7 I'll ask that Mr. Smith, that he puts that on the
8 record. I would ask that we have that.
9 MS. PONZOLI: You mean that the entire 1992
10 annual narrative report be included in the
11 record?
12 MR. EARL: Or we can take page, with the
13 stipulation if you're willing, counsel, take
14 page 31 to the end, a copy of that. Are you
15 with me?
16 MS. PONZOLI: Certainly.
17 It's irrelevant to me whether we have
18 two -- I think it's neater to have a single
19 exhibit.
20 MR. EARL: That's fine.
21 MS. PONZOLI: Maybe delete this one at the
22 time the full exhibit arrives.
23 MR. EARL: That's fine.
24 Madam reporter, would you do that? Would
25 you do that? When that comes in, would you
718
1 substitute the full report for the first 30
2 pages we have on Exhibit 23?
3 THE COURT REPORTER: Yes, sir.
4 MR. EARL: Thank you.
5 MS. PONZOLI: That will become the new 23
6 is the way you want to do it?
7 MR. EARL: Substitute it, yes, please.
8 Okay. That's all I have.
9 MS. PONZOLI: Are you finished, Mr. Earl?
10 MR. EARL: Everything I can ask now, yes.
11 MS. PONZOLI: Well, I want to make clear
12 that, you know, I want you to finish with
13 Mr. Neely in a sitting, so I don't want there to
14 be any confusion.
15 I'm taking your stopping at this point that
16 you are finished with Mr. Neely.
17 MR. EARL: Unless there's some documents
18 that have not been provided that I would have to
19 ask this man about, that's the only exception I
20 can see.
21 MS. PONZOLI: You know what you think you
22 have to have, and I think you have to make that
23 known right now at this moment and I will
24 certainly attempt to bring it tomorrow.
25 So I just don't want any misunderstanding.
719
1 We have a lot of depos --
2 MR. EARL: Subject to that, I have no
3 further questions.
4 Mr. Smith, if you'd like to --
5 MR. SMITH: Sure.
6 MR. EARL: Would you like to move here?
7 MR. SMITH: No.
8 Off the record.
9 (Discussion held off the record.)
10 CROSS (Burkett S. Neely, Jr.)
11 BY MR. SMITH:
12 Q. All right. Mr. Neely, I'm Robert Smith, as
13 you know, and I represent the Sugar Cane Growers
14 Cooperative --
15 A. Yes, sir.
16 Q. -- and Roth Farms and KWB Farms.
17 I'm going to take just a moment to tell you
18 what it is I'm going to ask you about tomorrow, it
19 being a quarter to five in the afternoon and you've
20 had a long day, and I thought we'd, if it's agreeable
21 to you, begin fresh in the morning.
22 A. That's fine.
23 Q. Okay. I will -- my curiosity's piqued by
24 one thing that kind of sticks in my mind.
25 In the course of Mr. Earl's examination you
720
1 made a point that the Loxahatchee refuge or WCA-1 is
2 the only Water Conservation Area in the project that
3 is surrounded by canals inside the levees.
4 A. Yes, sir.
5 Q. That's significant to you, isn't it?
6 A. Yes, sir.
7 Q. It means that it's the only space which we
8 are desirous of protecting consistently with other
9 interests which doesn't have a levee to protect it
10 against water that may be introduced into the canals;
11 is that correct?
12 A. Yes, sir.
13 (Thereupon, there was an interruption
14 in the proceedings.)
15 THE WITNESS: Excuse me just one minute.
16 I'm sorry, sir. I was distracted by that.
17 Could she read that back for me?
18 MR. SMITH: Please.
19 (Thereupon, a portion of the record
20 was read by the reporter.)
21 MS. PONZOLI: Do you understand the
22 question, Mr. Neely?
23 THE WITNESS: No.
24 BY MR. SMITH:
25 Q. Well, what is the significance to you,
721
1 Mr. Neely?
2 A. Of the canal?
3 Q. Of it being the only space that has the
4 canals inside the levee that defines its boundaries.
5 A. Defines its boundaries?
6 Q. Yes.
7 A. I'm not quite sure. Defines the boundaries
8 of what?
9 Q. Of WCA-1 or the Loxahatchee Refuge.
10 A. No, sir. The boundaries of the refuge are
11 considerably far outside that area, that canal, and
12 WCA-1 is outside of that canal.
13 Technically the canal surrounds a portion
14 of the northern Everglades that is part of the refuge
15 and most all of WCA-1 that is still desirous for us
16 to protect from, from further encroachment by these
17 plants that are brought on by nutrients.
18 Q. With that explanation, why is it
19 significant that it is the only area that it has the
20 canal adjacent to the area that the occupant is
21 desirous of protecting?
22 A. I would have no idea.
23 Q. Well, you thought it was significant. And
24 I'm asking you what is the significance of it?
25 A. The significance of it is that the water
722
1 that's pumped in through the S-5A is channeled, most
2 of it is channeled around as opposed to the water
3 that goes into Water Conservation Area Number 2. And
4 it channels around and filters in from the sides
5 rather sheetflows through the middle. That's the
6 significance to me.
7 Q. How much of the water that the refuge gets
8 does it get from structure 5A as opposed to rainfall?
9 A. I think rainfall's probably in the
10 neighborhood of 57, 58 percent of the water that
11 enters the refuge.
12 Q. And of the other 42 to 43 percent, how much
13 of it comes in through 5A?
14 A. Through 5A? I'd have to look and see, sir.
15 I don't recall those numbers right offhand.
16 Q. Does the refuge depend for a sufficient
17 water supply on what comes out of 5A?
18 A. Not only the refuge, but the area south of
19 us, yes, sir.
20 Q. I'm speaking of the refuge.
21 A. Yes, sir.
22 Q. Couldn't get along without it.
23 A. If you stopped all discharges, we may be
24 able to.
25 Q. If you stopped discharges at the 10
723
1 structures.
2 A. Or the S-39 or the Acme or the Lake Worth
3 Drainage District. Any discharges.
4 Q. I have a sense from your description of it
5 that the canals inside the refuge are, serve not only
6 to supply water to the refuge, as you've described,
7 but to pass through the refuge to serve other
8 constituents. Is that your perception of it?
9 A. Generally when water's put into the refuge
10 and we're at the top of the schedule, the S-10's are
11 open and water passes through the refuge to area 2.
12 Q. And that's as designed.
13 A. Yes, sir.
14 Q. And most of the water that passes through
15 the 10's to area 2, I would judge as a layman and ask
16 you to tell me whether it's correct or not, is water
17 that travels down the canal.
18 A. Not always.
19 Q. Most of it is not always?
20 A. Yes, sir. It depends on the situation at
21 the time that the S-10's are open as to whether
22 you're getting water that has stood in the refuge for
23 several days or even several weeks going out the
24 S-10's while the S-5 25, 35 miles away is pumping.
25 So it could be a replacement type thing
724
1 where you take water that's been standing in the
2 refuge and replace it with water that's just being
3 pumped in.
4 Q. Now, it's possible for the refuge to get
5 all its water supply from Lake Okeechobee, is it not?
6 A. I don't know, sir.
7 Q. Well, so far as the physical structure of
8 the canals and the pumps.
9 A. That's correct.
10 Q. I mean, you could look at a map and see
11 that that's possible, could you not?
12 A. Yes, sir. That's what I commented earlier
13 about the, about not being a poorly designed system.
14 Q. You mean you have options. The water
15 managers --
16 A. I don't have options.
17 Q. The water managers have options.
18 A. Right, the water management, right.
19 Q. So it would be possible if the water
20 managers could be prevailed on to do so and if you
21 thought it was in the interest of the refuge to do so
22 for the Loxahatchee Refuge to receive its entire
23 water supply from Lake Okeechobee, would it not?
24 A. I think that's possible. I'm not
25 absolutely certain. It depends on the level of the
725
1 lake again.
2 Q. And would it be possible for, by the same
3 token, considering the versatility of this plumbing
4 system out there, for Loxahatchee to receive its
5 entire water supply from other sources north or
6 indeed northeast of structure 5A rather than either
7 Lake Okeechobee or the Everglades agricultural area?
8 A. I don't know of a source of water that
9 great, sir.
10 Q. Historically, by that I mean back in the,
11 before the thirties or the forties, there was a
12 source to the north and northeast, was there not?
13 A. The Loxahatchee slough.
14 Q. Yes.
15 A. Yes, sir.
16 Q. And if one's to believe the implications of
17 the shape of the tree islands and other elements of
18 maps at the period, that was a rather major source of
19 water for the area now known as WCA-1 or Loxahatchee,
20 was it not?
21 A. I wouldn't draw the conclusion that it's
22 major. I would draw the conclusion that it was a
23 source.
24 Q. And it is no longer a source?
25 A. No, sir.
726
1 Q. What occupies or interrupts that source
2 now?
3 A. The community of Wellington, State Road 80,
4 Loxahatchee -- not Loxahatchee, not the town of
5 Loxahatchee, but some of the other smaller
6 communities to the northeast of the refuge.
7 Q. Is it pretty well populated?
8 A. Yes, sir.
9 Q. Have you ever discussed just as a
10 speculative thing or more seriously than that the
11 possibility of the L-7 canal being separated from
12 Loxahatchee by moving the spoil or the levee to the
13 eastern side of that canal?
14 A. No, sir.
15 Q. Have you ever discussed with the Corps of
16 Engineers or indeed with your superiors or your
17 colleagues in the Service the operation of 5A and its
18 connected canalways to supply water from a source
19 other than the EAA?
20 A. No, sir.
21 Q. Does it occur to you that that is an
22 inconsequential question or one that's so patently
23 off the board as not to be worthy of your interest?
24 A. Well, sir, the S-5A pump station was
25 designed to drain 100 -- or an area larger than 150
727
1 square miles of EAA. So it never -- I've never
2 considered having the S-5A pump other water because
3 it's the area to the northwest is what it's designed
4 to drain.
5 Q. It would require major structural
6 adjustments in order to do anything but what it does,
7 I guess.
8 A. Yes, sir.
9 Q. There's a design bias in the system as
10 originally built in favor of making WCA-1 or
11 Loxahatchee the recipient of EAA water, is that not
12 so?
13 A. I would say so.
14 Q. All right. I'm going to ask you just one
15 other question before we go -- or before I give you
16 these documents and that is do you recognize the
17 authenticity and general reliability of John H.
18 Davis' 1943 work on vegetation in the Everglades and
19 in the Loxahatchee area?
20 MS. PONZOLI: I'm going to object to this
21 question. I think it calls for a legal
22 conclusion from this witness. He's not listed
23 as an historian.
24 He can answer as a layman. I'm not
25 preventing him from answering. But I will
728
1 certainly not allow any legal significance to
2 attach to his answer.
3 Do you need the question again, Mr. Neely?
4 THE WITNESS: Yes.
5 MS. PONZOLI: Would you read it back,
6 please?
7 (Thereupon, a portion of the record
8 was read by the reporter.)
9 THE WITNESS: No, sir, I have not read
10 Dr. Davis' entire book.
11 I've seen the publication, but I have not
12 read, read it in detail.
13 BY MR. SMITH:
14 Q. Is there a copy on the refuge?
15 A. I think there is a copy in the reprint
16 file. I'm not absolutely certain. I could find out
17 if it's of interest to you.
18 Q. Well, I'm inquiring whether it was of
19 interest to you, sir.
20 You've been there since 1982?
21 A. '81.
22 Q. And you've never read this book?
23 A. Not in detail.
24 Q. Have you read the section on the
25 Everglades?
729
1 A. I have looked at the book. I don't recall
2 reading that book in detail. I would have to look at
3 it again to refresh my memory. I...
4 Q. Have you ever discussed it with your
5 colleagues?
6 A. That book in particular?
7 Q. Yes, sir.
8 A. No, sir.
9 Q. And I'm referring to Geological Bulletin
10 Number 25.
11 Have you examined the map that is published
12 with the book?
13 A. I'd have to see the map.
14 Q. I show you the map.
15 (Thereupon, the map was handed
16 to the witness.)
17 MS. PONZOLI: I believe the new Ogden &
18 Davis book has this same map.
19 THE WITNESS: Yes, sir, I've seen the map.
20 BY MR. SMITH:
21 Q. Do you recognize that as a generally
22 accurate depiction of the characteristic vegetation
23 of the areas that it purports to depict at the time
24 it was prepared?
25 MS. PONZOLI: I'm going to object to all
730
1 these questions, Mr. Smith. I'm sorry. I don't
2 think this person can tell you what was there in
3 '43.
4 MR. SMITH: Oh, I believe he can.
5 THE WITNESS: I don't see, sir, I don't see
6 any of the developed area on here west of the
7 intracoas- -- or west of Lake Worth. I would
8 have to assume there was some developed area.
9 BY MR. SMITH:
10 Q. Yes. Leaving aside --
11 A. Some highways and roads.
12 Q. Leaving aside questions of highways and
13 roads since he talks about it as a vegetation map
14 rather than a highway map as appears on the legend --
15 A. I have no reason to dispute the map. I
16 can't verify it.
17 Q. You have no reason to dispute it, sir?
18 A. For what it's worth in 1943 using the
19 methods that they had, the technology they had at the
20 time? I could not have disputed it in 1943.
21 Q. And you don't dispute it now.
22 A. I have -- it's not accurate today.
23 Q. It doesn't depict something that's out
24 there today, is that what you mean?
25 A. That's correct.
731
1 Q. But does it accurately depict something
2 that was out there in 1943?
3 MS. PONZOLI: I still object, Mr. Smith.
4 THE WITNESS: I --
5 MS. PONZOLI: I haven't presented him as an
6 historical vegetation expert.
7 BY MR. SMITH:
8 Q. What about it, sir?
9 MS. PONZOLI: Would you like him to look at
10 this overnight for accuracy and decide whether
11 he knows or not, Mr. Smith?
12 MR. SMITH: He'll have an opportunity to
13 qualify tomorrow any answer he gives now. But I
14 want to understand before we leave here today
15 what is the extent of his acknowledgment that
16 the John H. Davis map which is the predicate for
17 many, if not most, if not all successive maps
18 showing the historic flow of the Everglades was
19 authentic at the time.
20 MS. PONZOLI: Well, I'm sorry. I don't
21 believe this witness is here to answer those
22 questions, but I'll allow him to answer if he
23 can.
24 THE WITNESS: Okay. What question do you
25 have, sir?
732
1 BY MR. SMITH:
2 Q. Was it authentic and generally accurate at
3 the time?
4 A. Sir, I have no earthly idea.
5 Q. Is it reputed among you and your colleagues
6 to have been accurate and generally authentic at the
7 time?
8 MS. PONZOLI: He has answered that he has
9 not discussed this with his colleagues, so how
10 can he answer that? It's been asked and
11 answered.
12 You're not going to get this witness to
13 stipulate to Davis, Mr. Smith. It isn't going
14 to happen.
15 MR. SMITH: Well, let me try it,
16 Ms. Ponzoli.
17 BY MR. SMITH:.
18 Q. What about it, Mr. Neely? Do you have any
19 reason to dispute the accuracy of that?
20 MS. PONZOLI: He said he cannot verify it.
21 I will not allow this witness to answer a
22 question he cannot answer, Mr. Smith. I mean...
23 Mr. Neely, have you ever seen this map
24 before?
25 THE WITNESS: Yes.
733
1 MS. PONZOLI: How many times have you seen
2 it?
3 THE WITNESS: Three or four.
4 MS. PONZOLI: And how long have you
5 examined it?
6 THE WITNESS: For a few minutes at a time.
7 MS. PONZOLI: Okay. I think the answer
8 speaks for itself.
9 BY MR. SMITH:
10 Q. Do you have any reason to dispute its
11 accuracy and authenticity as of vegetative conditions
12 in the year 1943 and before?
13 MS. PONZOLI: He doesn't have to answer
14 that question if he doesn't know the answer.
15 THE WITNESS: I do not know the answer.
16 BY MR. SMITH:
17 Q. You do not know whether you have a reason
18 to dispute it, do I understand you correctly?
19 A. I would have no, you know --
20 MS. PONZOLI: Yes, I think that's accurate,
21 Mr. Smith.
22 MR. SMITH: Well, let him state it, please.
23 MS. PONZOLI: Mr. Smith, he said he spent a
24 couple of minutes looking at it, and you want
25 him to answer whether he has any reason to
734
1 dispute it. He hasn't had time to dispute it.
2 MR. SMITH: Okay.
3 BY MR. SMITH:
4 Q. What about it?
5 MS. PONZOLI: He's only had a couple of
6 minutes with it.
7 BY MR. SMITH:
8 Q. With that explanation, do you have any
9 reason to dispute it as you sit here today?
10 A. I have no reason to either verify it or
11 dispute it.
12 Q. Do you know of any other map circa 1920,
13 1930, 1940 pre project which in your opinion more
14 properly or more accurately or more authentically
15 represents the vegetative characteristics of the land
16 covered by that map?
17 A. I don't know of any. That's not to say
18 that some exist.
19 Q. All right.
20 Well, we'll quit. And I do have a complete
21 copy of this map which is in the material I'm going
22 to give you to take home with you tonight, and I wish
23 you would consider it and with such consultation with
24 your counsel, with anybody else as you may wish, come
25 on back --
735
1 MS. PONZOLI: Do you want our stipulation
2 ready tomorrow?
3 BY MR. SMITH:
4 Q. -- and come on back and see if we can talk
5 about it some more tomorrow.
6 MR. SMITH: Now I'm going to put this
7 original back here in the --
8 MS. PONZOLI: I don't think it's folded
9 right, Mr. Smith.
10 MR. SMITH: Okay. I'll tend to it.
11 BY BY MR. SMITH:
12 Q. But there's another copy here in this,
13 Mr. Neely.
14 A. Okay, sir.
15 Q. What I'm going to hand you here is an
16 accordion folder with some papers in it in the
17 pockets marked A through K.
18 MS. PONZOLI: Okay.
19 BY MR. SMITH:
20 Q. Most everything in here came from your
21 files or the files of the Service, Fish and Wildlife
22 Service. There may be some exceptions, but they will
23 be clear to you. I think, for example, this one that
24 I've marked A, preliminary evaluation report by the
25 Fish and Wildlife Service, 1947 came from national
736
1 archives rather than your...
2 A. Yes, sir.
3 Q. But that's A all by itself and everything
4 else is kind of in the right pocket: B, C, D.
5 A. All right.
6 Q. They are not segregated as to documents.
7 For example, you'll find a whole little sheath of
8 correspondence with some of your identifying numbers,
9 the Service's, Fish and Wildlife Service's
10 identifying numbers that are one exhibit arranged
11 chronologically which have to do with the decision
12 made in 1949, 1950 about where the Fish and Wildlife
13 Service wished to locate its wildlife refuge, whether
14 in the Hillsboro, as it was called, or whether in the
15 Broward or another part of the former pristine
16 Everglades.
17 So I think you'll be able to figure those
18 out.
19 I'm going to ask you generally aside from
20 the questions that are inspired by the areas covered
21 by Mr. Earl today in just four general areas.
22 A. Okay, sir.
23 Q. And you might bear those in mind when you
24 look at these documents.
25 I'm going to ask you about the historical
737
1 conditions pre '47. The Davis map is obviously part
2 of that. I'm going to ask you about the vegetative
3 characteristics most particularly of what became the
4 Loxahatchee Refuge area.
5 Secondly I'm going to ask you based on
6 these documents to acknowledge the accuracy of
7 statements in these documents if you can.
8 A. To do what now?
9 Q. To acknowledge the accuracy of statements
10 in these documents concerning the deterioration of
11 the pristine conditions that may formerly have
12 existed by, up to the time of the project and indeed
13 since the project, let's say from 1947, '48 when some
14 of the deterioration was documented up through the
15 sixties and the seventies due to overdrainage or due
16 to nutrients or due to other causes that are
17 mentioned in these documents.
18 Thirdly I'm going to ask you to acknowledge
19 the accuracy of certain representations in these
20 documents by the Fish and Wildlife Service and your
21 predecessors by the U.S. Congress as to the purpose,
22 the primary purposes of the project as reflected in
23 the design bias that you and I have already
24 discussed.
25 Fourthly, I'm going to ask you plans for
738
1 management as they existed in the fifties and the
2 sixties and in the seventies and I suppose into the
3 eighties of Loxahatchee, that is, different water
4 levels, what was in the minds of the managers as
5 indicated by these documents as to what they were
6 trying to restore or create or encourage to happen.
7 A. Okay, sir.
8 Q. And that will be generally what I'm going
9 to try to cover.
10 And I hope by doing this my questions will
11 be more intelligible to you. I'll try to phrase them
12 simply and try not to cover, to duplicate what's
13 already been covered.
14 MS. PONZOLI: Mr. Smith, I appreciate your
15 courtesy in warning us in what you're going to
16 do and I appreciate your courtesy in providing
17 the documents.
18 However, as the attorney for the
19 United States and as the attorney representing
20 Mr. Neely at this deposition, let me make it
21 extremely clear that I doubt seriously he's
22 going to be able to answer any of your questions
23 if these are the areas that you intend to ask
24 him tomorrow.
25 But we will come, we will give it our best
739
1 effort.
2 I do not believe he is compelled to do
3 homework tonight which I do believe what you
4 have asked --
5 THE WITNESS: We can't read that.
6 MS. PONZOLI: We can't even read A.
7 And I assume you've given us your best
8 copy. I don't know.
9 I don't agree, even assuming that we can
10 read A, that he's compelled to do homework
11 tonight and come in and answer your questions.
12 I furthermore believe he has virtually no
13 ability to confirm the accuracy of various
14 things that were said nor to know what was in
15 the minds of people decades ago, nor has he been
16 designated by the United States to speak on
17 behalf of the Fish and Wildlife Service as to
18 what their position was in the fifties, sixties,
19 seventies and eighties.
20 So I don't want to be unfair to you or
21 ungentlemanly about our response tomorrow, but I
22 expect we're going to have a difficult day. I
23 just want to warn you.
24 I do not believe these are proper lines of
25 inquiry of this witness nor proper types of
740
1 questions, but we will come and do our best.
2 Do you have a better copy of A?
3 MR. SMITH: I've got the master original,
4 and I'll give that to you.
5 MS. PONZOLI: Okay.
6 Well, we can have it run off, if you want,
7 here and you can keep yours.
8 MR. SMITH: No, listen.
9 This is off the record.
10 (Discussion held off the record.)
11
12 (Thereupon, at 5:10 p.m., the deposition
13 was adjourned for the evening.)
14
15
741
1 CERTIFICATE OF OATH
2
3
The State of Florida, )
4 County of Palm Beach. )
5
6
I, the undersigned authority, certify that
7 Burkett S. Neely, Jr., personally appeared before me
and was duly sworn.
8
WITNESS my hand official seal this _______
9 of_______________, 1994.
10
11 ______________________________________
Marianne Martini Holmes, Notary Public
12 in and for the State of Florida
My Commission Expires 7/30/97
742
1 C E R T I F I C A T E
2
The State of Florida, )
3 County of Palm Beach. )
4
I, Marianne Martini Holmes, Registered
5 Professional Reporter, do hereby certify that I was
authorized to and did report said deposition in
6 stenotype; and that the foregoing pages, numbered
from 440 to 740, inclusive, are a true and correct
7 transcription of my shorthand notes of said
deposition.
8
I further certify that I am not attorney or
9 counsel of any of the parties, nor am I a relative or
employee of any attorney or counsel or party
10 connected with the action, nor am I financially
interested in the action.
11
The foregoing certification of this
12 transcript does not apply to any reproduction of the
same by any means unless under the direct control
13 and/or direction of the certifying reporter.
14 Dated this ____ day of ____________, 1994.
15
16 _________________________________
Marianne Martini Holmes, RPR
17
18
State of Florida, )
19 County of Palm Beach. )
20
The foregoing certificate was acknowledged
21 before me this _______ day of ________________, 1994
by Marianne Martini Holmes, who is personally known
22 to me.
23
24 _________________________________
Notary Public - State of Florida
25 My Commission expires: