743 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 VI 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 Wednesday February 23, 1994 319 Clematis Street 24 West Palm Beach, Florida 33401 9:20 - 1:21 p.m. 744 1 APPEARANCES: 2 3 On behalf the Petitioners Sugar Cane Growers 4 Cooperative of Florida, Roth Farms, Inc., and 5 Wedgworth Farms: 6 Hopping, Boyd, Green & Sams 7 123 South Calhoun Street 8 Tallahassee, Florida 32314 9 By: ROBERT P. SMITH, JR., ESQUIRE 10 11 12 On behalf of the Intervenor, United States of America: 13 Department of Justice 14 99 Northeast 4th Street 15 Miami, Florida 33132 16 By: SUZAN HILL PONZOLI, 17 Assistant United States Attorney 18 745 1 - - - 2 I N D E X 3 - - - 4 5 WITNESS: DIRECT CROSS REDIRECT RECROSS 6 BURKETT S. NEELY, JR. (Continued) 7 By Mr. Smith 747 8 9 10 - - - 11 E X H I B I T S 12 - - - 13 14 NUMBER PAGE NO. 15 NEELY EXHIBIT NO. 24 747 NEELY EXHIBITS A through K 746 16 17 746 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 previously first 6 duly sworn, was further examined and testified as follows: 7 (The documents were premarked 8 Exbs. A through K.) 9 THE COURT REPORTER: You're still under 10 oath, Mr. Neely. 11 THE WITNESS: Yes. 12 MR. SMITH: Shall we proceed? 13 MS. PONZOLI: We're ready finally. 14 MR. SMITH: What is the next numbered 15 exhibit? 16 THE COURT REPORTER: 24. 17 MS. PONZOLI: Did we introduce that 18 yesterday? 19 MR. SMITH: I haven't marked it. 20 MS. PONZOLI: We talked about it. 21 MR. SMITH: I haven't marked it. 22 I'm going to ask that the colored 23 patched-together copy of the original Davis map 24 which I displayed to the witness yesterday be 25 marked with the next numbered exhibit to keep 747 1 the sequence of the lettered exhibits that we've 2 already premarked, and I understand that would 3 be Exhibit 24. 4 (The document was marked 5 Exb. No. 24.) 6 CONTINUED CROSS (Burkett S. Neely, Jr.) 7 BY MR. SMITH: 8 Q. Now, Mr. Neely, I'm going to show you again 9 the original Davis map, a copy of which is marked 10 as 24. 11 A. Yes, sir. 12 Q. Ask you if you had an opportunity to look 13 at this last night or this morning before returning 14 to your deposition? 15 A. Yes, sir. 16 Q. Would you tell us, Mr. Neely, whether you 17 acknowledge that to be an authentic and accurate 18 vegetation map of southern Florida including 19 particularly the Everglades as it existed prior to 20 the publication date 1943? 21 A. I don't know, sir. 22 Q. Your answers this morning then are the same 23 as they were yesterday? 24 A. Yes, sir. 25 Q. And if you wouldn't mind my summarizing 748 1 them, see if I understand you correctly -- 2 A. My answer is I don't know. That's the 3 summary. 4 Q. And you have no knowledge of any map that 5 would permit you more confidently to verify the 6 accuracy of this? 7 A. From the 1943 era, no, sir. 8 Q. Would it be fair then for me to conclude 9 that you have no knowledge of any map that you 10 consider to be authentic showing the distribution and 11 characteristics of vegetation in the Everglades, 12 let's say, in the first half of the twentieth 13 century? 14 A. I'm sure there were other maps that I 15 probably don't know of, Mr. Smith, but the, there's 16 quite a few references to another map, a military map 17 of the, the mid to late 1800s that was probably the 18 best of its kind in that area -- era, just as this is 19 probably the best information available in this era. 20 Q. You're willing to characterize it as that? 21 A. That this was the best available 22 information based on technology for 1943? I don't, I 23 don't validate its accuracy, but this is based on the 24 best available data in 1943. 25 Q. This was published with Dr. Davis' book 749 1 published in the same year. 2 A. Yes, sir. 3 Q. And I assume you're aware that publications 4 which you've passed your hand and presumably approved 5 have made reference to the Davis book from time to 6 time. 7 A. Documents -- 8 MS. PONZOLI: Object to the form of the 9 question. 10 THE WITNESS: -- that I -- 11 BY MR. SMITH:. 12 Q. Is the Davis book generally accepted as an 13 authentic description of the natural features of 14 southern Florida especially in the vegetation and the 15 Everglades as of the date of publication 1943 with 16 the qualification that you've added with respect to 17 the map? 18 MS. PONZOLI: I object to, Mr. Smith, this 19 continued use of authenticating, authenticating. 20 I'm not asking you to stop it, but I want a 21 continuing objection throughout this deposition. 22 Whatever importance you want to place on 23 the Davis book and however the Cooperative 24 wishes to interpret it is certainly your 25 prerogative to do, but I don't think that it's 750 1 appropriate to continue asking this witness or 2 any other to authenticate that which they are 3 really incapable of authenticating. 4 BY MR. SMITH: 5 Q. Well, let me change the word to see if I 6 can alleviate that objection. 7 Is the Davis book generally accepted among 8 professionals in Everglades management as describing 9 with general accuracy, given methods of collecting 10 data and observation prevailing at the time, of the 11 natural features of southern Florida especially the 12 vegetation and the Everglades? 13 A. I would say that it's probably generally 14 accepted. There are exceptions to that. There have 15 been people that make exceptions to some of the data 16 in Davis' book. And the description of the 17 Everglades and the accuracy of the map I can't attest 18 to -- or the accuracy of his description and the 19 accuracy of the map I can't attest to. 20 But for what it's worth, this is probably 21 the document of the time for 1943 the best available 22 data. 23 Q. All right, sir. 24 Now, if I read Davis' legend at the 25 right-hand bottom of that map correctly, the area now 751 1 depicted, the area depicted on that map which is now 2 WCA Number 1 or the Loxahatchee was at the time Davis 3 was portraying it a slough, pond and lake area with 4 aquatic plants. Do you interpret the map -- 5 A. That's the way he depicts it. 6 Q. With tree islands, the characteristic 7 purple, I believe. 8 A. Under the main Everglades, it's listed 9 under main Everglades vegetation, yes. 10 Q. Am I correct to say that the purple ovals 11 in that slough and pond and lake area represent the 12 tree islands? 13 A. I wouldn't call them purple. I'd call them 14 tan. 15 But, yes, I think that's the way he has 16 them designated on his map. 17 Q. Do you agree, Mr. Neely, that that's an 18 accurate portrayal of the dominant and predominant 19 vegetation in the depicted area in the early 1940s? 20 MS. PONZOLI: I continue to object to the 21 word accurate. I think he's qualified what he 22 knows about its accuracy, but he can't say if 23 it's accurate. 24 MR. SMITH: Well, he can. He can. Whether 25 he will is up to him. And if he says he cannot, 752 1 I'll ask him another question. 2 THE WITNESS: Yes, sir, I cannot, I cannot 3 say that this is an accurate depiction of the 4 exact vegetation for either the refuge or the 5 entire area. 6 BY MR. SMITH: 7 Q. Was this depiction generally accepted 8 during the forties, fifties and sixties by 9 professionals engaged in Everglades history or 10 management as accurately depicting the vegetation 11 conditions that prevailed that Davis reported in this 12 book and map? 13 A. I don't know. 14 Q. Do you have any reason to doubt it? 15 MS. PONZOLI: I object to the inference 16 that it's true because he doesn't doubt it, 17 Mr. Smith. 18 I think this is an improper line of 19 questioning. I believe we have not listed this 20 man as our Everglades historian, and you're 21 trying to sort of, I guess, cross-examine him in 22 that capacity. 23 MR. SMITH: I'm trying to understand what 24 the manager of the refuge, the senior 25 representative of the Wildlife Service in this 753 1 matter knows about the history of the area that 2 he's managing. 3 If he says this is inaccurate, I'll ask him 4 to describe the conditions that he thinks 5 existed instead. 6 BY MR. SMITH: 7 Q. So can you answer my question, Mr. Neely? 8 THE WITNESS: You'd have to read that back 9 again. 10 (Thereupon, a portion of the record 11 was read by the reporter.) 12 MS. PONZOLI: I'm going to add a further 13 objection. 14 "Do you have any reason to doubt it" is not 15 clear as to whether you are asking him if he has 16 a reason to doubt the map or does he have a 17 reason to doubt if people in the forties, 18 fifties and sixties relied upon this map. 19 I don't mind your asking my witness what he 20 knows about the history of his area, Mr. Smith. 21 I think that could be a fair question and a fair 22 line of inquiry. 23 I don't see that as what you're looking to 24 do. You're either looking to impeach him with 25 every historical document you've done some very 754 1 fine research to bring up or you're looking to 2 establish your research as appropriate. You 3 know, that's my view of what's going on. 4 MR. SMITH: Well, thank you. 5 BY MR. SMITH: 6 Q. My question asked you do you have any 7 reason to doubt that this map depicting the 8 Loxahatchee area as it does and characterized as it 9 is on the map with respect to vegetation was 10 generally accepted by professionals in the field, 11 which I mean Everglades history or management, in the 12 forties, fifties and sixties as accurately depicting 13 the condition of what is now the Loxahatchee Refuge 14 before 1943? 15 A. Mr. Smith, I don't know whether it was 16 fully accepted or not by people that did research in 17 those eras of forties, fifties and I believe you said 18 sixties. 19 I have seen references to Davis' work both 20 positive and negative and I have seen references to 21 many other works of the same time that relate to 22 Everglades. 23 Q. Let me show you as part of Composite 24 Exhibit C Fish and Wildlife Service document number 25 128, a letter or office memorandum on the standard 755 1 form of the United States Government from refuge 2 manager, Everglades Refuge, the name Gerald F. Baker 3 to the regional director dated October 27, 1949. 4 MS. PONZOLI: Would you give me a minute 5 to -- 6 MR. SMITH: You bet. 7 THE WITNESS: Here it is, Suzan. 8 MR. SMITH: And I'm going to refer -- 9 THE WITNESS: They are in chronological 10 order. 11 BY MR. SMITH: 12 Q. I'm going to refer to the first page of 13 that memorandum which is Bates Number 147. 14 A. Yes, sir. 15 MS. PONZOLI: Well, I'm just having trouble 16 getting with you. 17 THE WITNESS: Go chronologically and it's 18 back -- look. It's down about a quarter of an 19 inch. 20 MS. PONZOLI: October. 21 Is this it? 22 THE WITNESS: That's it. 23 BY MR. SMITH: 24 Q. Would it be correct to say generally of 25 this document, Mr. Neely, that it is one of a series 756 1 of communications in 1949 which led to the choice by 2 the Fish and Wildlife Service in I think early 1950 3 of the Loxahatchee area as the site for the proposed 4 refuge? 5 A. I don't know, sir. I think there's plenty 6 of correspondence in front of that prior to that date 7 that indicated the desire to make the Hillsboro area 8 a National Wildlife Refuge. 9 Q. Yes, sir. 10 A. And I'm not sure that this is "the" 11 document that made "the" determination. 12 Q. Oh, no, I don't suggest that it is. In 13 fact, I don't believe it is at all. 14 I'm suggesting, do you recognize this as 15 one of the series of communications on the subject 16 that led to that definitive choice being made in 17 early 1950? 18 A. Yes, sir, I would acknowledge that as one 19 of the series. 20 Q. And if I reconstruct the names and dates 21 correctly, James Silver was the regional director at 22 the time in Atlanta and Walter Gresh was designating 23 himself the acting regional director. Is that 24 consistent with your understanding of the history of 25 this? 757 1 A. I don't, I don't know who was acting on 2 that day or anything, sir. I'd have to try to 3 reconstruct that myself. 4 Q. Are those names familiar to you? 5 A. Walter Gresh is. James Silver is, but I 6 don't know, I don't recall exactly in what capacity 7 they were at that particular time. 8 Q. All right. 9 A. This was quite a time before I went to work 10 for the Fish and Wildlife Service. 11 Q. Right. 12 At the bottom of Bates Number 147, the 13 communication to the regional director by the refuge 14 manager, Everglades Refuge, re: the proposed 15 Loxahatchee National Wildlife Refuge, the paragraph 16 appears, quoting, "An excellent source of information 17 on soils, water drainage, vegetative cover, and 18 ecology, for this and other south Florida areas is," 19 followed by the citation to the Geological Bulletin 20 Number 25, Dr. Davis' book which we've been referring 21 to. 22 Do you agree that that reference is made 23 there? 24 A. Yeah, apparently that's what Mr. Baker 25 felt, not the Fish and Wildlife Service. That's 758 1 Mr. Baker's depiction of that book. 2 Q. All right. And as late as November 1990 in 3 Neely Exhibit Number 6, a synthesis report by 4 Richardson and others evaluating refuge habitats in 5 relationship to water quality, quantity, et cetera, 6 prepared for the refuge, the Davis book is again 7 cited in the bibliography, is it not? 8 A. What page does the bibliography start? 9 Q. You're looking at it. 10 A. Is this the start of it? 11 It's one of many amongst bibliographies 12 listed from page 158 to 166. I don't know how many 13 there are, but there're quite a few, quite a few 14 references. 15 I believe this goes with that, too, sir. 16 Q. No, that's yours. 17 A. Unless you just -- did you just hand it to 18 me? It's not mine. 19 Q. In fact, Mr. Neely, wasn't the predominant 20 vegetative characteristic of what is now the 21 Loxahatchee Refuge in the early 1940s slough, ponds 22 and lakes as contrasted to the more characteristic 23 northern Everglades marsh? 24 A. Well, that's what the Davis map depicts. 25 However, there were several other documents that 759 1 quantified the area with several different types of 2 vegetation in the, in the stack of documents you gave 3 me last night. 4 So Davis is not the only source. And these 5 are on-the-ground surveys that you gave me of 6 descriptions of the vegetation of the, of what's 7 known as the Loxahatchee Refuge. 8 MR. SMITH: Would you read the question 9 back, please? 10 (Thereupon, a portion of the record 11 was read by the reporter.) 12 THE WITNESS: I would say the answer is no. 13 BY MR. SMITH: 14 Q. Okay. 15 MS. PONZOLI: We're speaking, just so we're 16 all on the same -- 17 MR. SMITH: He's answered the question. 18 MS. PONZOLI: -- you're speaking 1943, is 19 that what you're saying, Mr. Smith? I just want 20 to be sure. 21 MR. SMITH: Yes. 22 MS. PONZOLI: Okay. 23 THE WITNESS: He said 1940s. 24 MS. PONZOLI: Okay. 760 1 BY MR. SMITH: 2 Q. I'm using the term 1940s because Davis' 3 book and map though published in 1943 were, according 4 to the book, based upon analysis of photographs, 5 aerial photographs, one of which is depicted on 6 page 10 in an entirely different area as having been 7 taken in February 1940. 8 (Thereupon, the document was handed 9 to the witness.) 10 MS. PONZOLI: Would you -- 11 THE WITNESS: This is north of Immokalee, 12 sir. That has nothing to do with Loxahatchee 13 Refuge. 14 BY MR. SMITH: 15 Q. That's what I said. That's what I said. 16 A. Okay. 17 Q. That's exactly what I said. 18 Now listen to me. 19 MS. PONZOLI: May I hear that back? I 20 missed the point. I really did miss the point. 21 MR. SMITH: I'm explaining to the witness 22 why I -- 23 THE WITNESS: I missed the point also. 24 MR. SMITH: I'm explaining to the witness 25 and you, Ms. Ponzoli, why I'm using the term in 761 1 the early forties instead 1943. The book was 2 published -- the map was published in 1943. It 3 didn't come, spring into existence, I presume. 4 And I'm trying from the book to ascertain when 5 the studies were done from which the map was 6 prepared. 7 BY MR. SMITH: 8 Q. And the clue that I'm calling to your 9 attention, and I'm not arguing for it, Mr. Neely, 10 just calling it to your attention, was that there is 11 a plate of an aerial photograph which the author says 12 was the basis of his map pertaining to another area 13 entirely, near Immokalee, but it's the only plate 14 published in the book which bears a date of February 15 1940. 16 I'm not asking you to verify anything about 17 it. I'm explaining to you why I used the term early 18 1940. 19 A. Okay, sir. 20 Q. Now, what then do you regard the 21 predominant vegetative characteristic of the 22 Loxahatchee area as being at that time? 23 A. Well, since I wasn't there, all I can do is 24 rely on documents that were published in that time, 25 Dr. Davis' being one of them. But if you could give 762 1 me just a minute, I can find references in here that 2 explain different types of vegetation on the area in 3 the 19 -- 4 Q. Oh, I recognize that. I intend to ask you 5 about them. 6 A. Okay. 7 Q. But what I'm asking you, I'm asking for the 8 state of understanding of Mr. Burkett Neely, the 9 manager of the refuge, at this time. We can talk 10 about the basis of your understanding, but I would 11 like for you to tell me what you believe to have been 12 the characteristic predominant vegetative species in 13 the Loxahatchee area in the early 1940s. 14 A. Okay, sir. Based on other documents other 15 than Dr. Davis -- 16 Q. Based on anything you like. 17 A. Yes, sir. 18 -- my interpretation of some of the types 19 of vegetation that's found out there -- and if you 20 can give me just a minute I will reference and give 21 you the exact names that were used, and that's the 22 only reference point I have is what's written in 23 these documents of the evaluations of that site at 24 that time, Dr. Davis' being one of them but not the 25 only one. 763 1 Q. All right. Let's come back to that. 2 You're referring to the documents I handed 3 you yesterday afternoon. 4 A. That's in one sense, yes. 5 Q. Well, before yesterday afternoon, 6 Mr. Neely, what was your understanding of the 7 predominant vegetative type that characterized what 8 is now the Loxahatchee Refuge in the period of time 9 in the twenty years before 1943? 10 A. Wet prairies, sawgrass, sloughs and tree 11 islands is the predominant four types of vegetation 12 communities; not specific vegetation, but 13 communities. 14 Q. And of those, sawgrass is the one that's 15 most conspicuously omitted by Dr. Davis as a 16 predominant species in this area, is it not? 17 A. Well, I see sawgrass depicted on his map. 18 I don't know where the refuge boundary falls exactly 19 on there, but some of that may be within the refuge. 20 Q. Well, obviously Dr. Davis is not depicting 21 sawgrass as a predominant species in what he has 22 colored -- 23 A. No, sir. 24 Q. -- according to his code as pond and slough 25 and lakes. 764 1 A. Yes, sir. 2 Q. We may agree on that, may we not? 3 A. Yes, sir. What he has colored on his map 4 in the green with the olive dots in it is what he 5 classifies as pond and slough. 6 Q. And before yesterday afternoon when I 7 handed you these documents your understanding was 8 that the characteristic and predominant vegetative 9 cover in what is now the Loxahatchee in that, in 10 those decades before 1943 included the predominant 11 species of sawgrass; is that correct? 12 A. It included some sawgrass, some wet 13 prairie, some sloughs and some tree islands. 14 Q. Well, let's see if we agree that Professor 15 Davis' map purports to represent in the northern part 16 of the Everglades by a light green color with no 17 hatching or cross marks a medium dense to sparse 18 sawgrass marsh? 19 A. I'd have to look at the map closer, sir. 20 He depicts both dense sawgrass marshes and 21 medium dense to sparse sawgrass marshes -- 22 Q. And they are the same -- 23 A. -- plus -- 24 Q. -- color but -- 25 A. Excuse me, sir. I'm not through. 765 1 Q. Okay. 2 A. Plus sawgrass myrtle mix all up in the 3 vicinity of the, within the vicinity of the refuge. 4 Q. Well, you see the configuration of the 5 Hillsboro Canal on this map, do you not? 6 A. Yes, sir. 7 Q. And you see the configuration of the Ocean 8 Canal? 9 A. Yes, sir. 10 Q. West Palm Beach Canal? 11 A. Yes, sir. 12 Q. Are you suggesting, sir, that the present 13 Loxahatchee Refuge contains areas that are shown on 14 this map as being either dense or medium dense to 15 sparse sawgrass marsh? 16 A. Presently you said or on this map? You 17 said present. 18 MR. SMITH: Read it back. 19 THE WITNESS: Yes. 20 (Thereupon, a portion of the record 21 was read by the reporter.) 22 THE WITNESS: Yes. 23 BY MR. SMITH: 24 Q. Okay. Where are they located? 25 A. They are located through a general area 766 1 down this side and to some extent across this area in 2 here generally depicted. There's sawgrass expanses 3 all through to interior of the refuge. 4 MS. PONZOLI: Mr. Smith, we have not 5 conceded that this map is somehow exactly the 6 image that you would see of South Florida today 7 and no one has superimposed any correlation to a 8 map of Florida and where the refuge would fall. 9 We're looking at a very generalized 10 vegetation map going back to 1943 and having to 11 estimate where we believe the refuge would be 12 and other features. 13 You're asking really impossible questions. 14 I have to be honest. 15 MR. SMITH: I don't believe so. 16 MS. PONZOLI: Well, we do and we're going 17 to protest. And we're going to cooperate with 18 you to the best of our ability, but we don't 19 consider any of this a -- 20 MR. SMITH: Fine. 21 MS. PONZOLI: You're trying to establish 22 the validity of one source of information and 23 somehow trying to make it be your whole 24 argument, and I don't think you can do that 25 through this witness but you're certainly 767 1 welcome to spend a day trying. 2 MR. SMITH: All right. 3 MS. PONZOLI: But it's not our job to make 4 true what we can't make true and we can't make 5 your ancient map or your old map, I'm not even 6 going to concede it's an ancient map, you can't 7 make your old map match today. It's not 8 something that you've at least taken the effort 9 to show us. 10 BY MR. SMITH: 11 Q. Do you agree, Mr. Neely, that this map 12 depicts conditions that don't exist today? 13 A. Yes, sir. 14 Q. Do you agree, Mr. Neely, that it depicts in 15 the area that is today the Loxahatchee Refuge a 16 regime that's a great deal wetter than it is now? 17 A. That that map depicts a regime that's 18 wetter than what is out there now? 19 Q. Yes, sir. 20 A. No, sir, I wouldn't agree with that. 21 Q. Is sawgrass a species that thrives on a 22 drier rather than a wetter regime than you would 23 characterize as sloughs, ponds and lakes? 24 A. Yes, sir. 25 Q. And when sloughs, ponds and lakes dry out 768 1 in this area, is that conducive to sawgrass invasion? 2 A. Not necessarily every time. 3 Q. Is it conducive to sawgrass invasion? 4 A. Sir, I can't answer that because I don't 5 know the conditions that you're describing. 6 Q. All other conditions being equal, is it 7 conducive to sawgrass invasion? 8 A. I cannot answer that, sir. 9 Q. Okay. 10 Well, isn't it a fact that sloughs in the 11 area that is now the Loxahatchee Refuge which were 12 sloughs at one time upon drying out gave way to 13 substantially more sawgrass than existed when they 14 were sloughs? 15 A. I can't answer that, sir. I do not know. 16 Q. Okay. In the 1993 report that you 17 exhibited to us yesterday, the draft report, 18 Exhibit 16 -- 19 A. Yes, sir. 20 Q. -- at page 38 and 39 you list a number of 21 public information projects and efforts by the refuge 22 to tell its story to the public, as I understand it, 23 through refuge visitations and outdoor classrooms for 24 students, interpretive tours, interpretive exhibits, 25 demonstration, and I assume public addresses by 769 1 yourself from time to time. Is that part of the 2 refuge's mission -- 3 A. Yes. 4 Q. -- to interpret itself to the public in 5 that way? 6 A. It's one of the programs that we use. 7 Q. And have you characterized the refuge as 8 the last remaining characteristic northern Everglades 9 habitat? 10 A. Yes, sir, that's been, the refuge has been 11 characterized that way in interpretive exhibits. 12 Q. And is that a characterization of which you 13 approve? 14 A. Yes, sir. 15 It's also a characterization generally used 16 by not only my agency but several other agencies 17 including the South Florida Water Management 18 District. 19 Q. As depicted on Professor Davis' map, the 20 area is not characteristic of the northern Everglades 21 habitat otherwise shown on that map, is it? 22 A. Could I look at the map again, sir? And I 23 want to make a comparison there between what 24 Dr. Davis shows for the refuge and what Dr. Davis 25 shows, for example, Shark River Slough. Am I 770 1 mistaken that these are not the same identifications? 2 MS. PONZOLI: They are or they are not? 3 THE WITNESS: That they are the same 4 classification. 5 MS. PONZOLI: Okay. 6 BY MR. SMITH: 7 Q. Why don't you answer my question first. If 8 you're going to impeach the map, I'll be glad to give 9 you an opportunity to do that. 10 Dr. Davis -- 11 A. I'm trying to answer your question. 12 Q. The question -- 13 A. What is your question, sir? 14 Q. Yes. The question was now as depicted on 15 this map, the area that is now the Loxahatchee was 16 not the last remaining characteristic northern 17 Everglades habitat as otherwise shown in the northern 18 Everglades by Dr. Davis, was it? 19 A. Dr. Davis doesn't have a classification for 20 north or south Everglades. 21 Q. Well -- 22 MS. PONZOLI: I think this has been asked 23 and answered, Mr. Smith, because you previously 24 indicated to him that you did not, at least as I 25 understood your question, did not think that the 771 1 refuge as it would be superimposed on this map 2 included sawgrass areas and the witness 3 indicated that his interpretation of the map is 4 that it would. 5 MR. SMITH: I'm accepting his hypothesis 6 that there are marginal areas of the Loxahatchee 7 as shown on this map that include the area that 8 the witness characterized as sawgrass marshes 9 with wax myrtle thickets. 10 BY MR. SMITH: 11 Q. That's what you meant to refer to, did you 12 not? 13 A. That's one indication. But I also said 14 that the refuge has areas of sawgrass marshes dense 15 and sawgrass marshes medium to dense, medium dense to 16 sparse. 17 Q. It has that today. 18 A. Yes, sir. 19 Q. My question was did it have it in 1940? 20 A. I have no idea, sir. 21 Q. All right. And my last pending question 22 was as depicted by Dr. Davis, whether you agree or 23 disagree with it, and you may have good grounds to 24 disagree, Mr. Neely, he did not characterize the area 25 which we've identified as the general area of 772 1 Loxahatchee as being of the same regime from a 2 vegetation standpoint as the other parts of the 3 northern Everglades, did he? 4 A. No, sir. 5 Q. Okay. You think he was in error in that? 6 A. I don't know, sir. 7 Q. All right. 8 MS. PONZOLI: I must say this is the most 9 unusual method of questioning, Mr. Smith, and 10 highly objectionable and I really believe that 11 we will move to strike all of it. 12 MR. SMITH: All right. 13 MS. PONZOLI: We have not presented 14 Mr. Neely as an Everglades historian. 15 You are trying to establish the 16 authenticity of a 1943 map. It's amazing. It's 17 truly an amazing and most, I think, improper 18 line of inquiry. 19 MR. SMITH: Okay. 20 BY MR. SMITH: 21 Q. All right. Let's see if we can move to 22 another area. 23 Would you look, please, within Composite 24 Exhibit C, and this again is the general collection 25 of correspondence that -- 773 1 A. Yes, sir. 2 Q. -- that ranges from I think September 1, 3 1949 to Walter Gresh's April 1950 document, would you 4 look, please, at Dr. Gresh's document which is the 5 last one in the series Fish and Wildlife Service 6 document number 92 with Bates Numbers 290 et seq. 7 A. I -- 8 Q. Have you found it? 9 A. I assume this is the page you're referring 10 to? 11 Q. I just wanted you to identify the document 12 first, please, sir. 13 A. Okay. 14 Q. You've got it? 15 Let's just orient ourselves. Turn back 16 over to page 300, Bates Number 300. It's the next to 17 the last page, under -- 18 A. Yes, sir. 19 Q. -- "Conclusions." This appears to be a 20 document concluding that the National Wildlife Refuge 21 be established in water retention unit number 1 and 22 it's a sound and justifiable undertaking, et cetera, 23 et cetera, and recommended on the next page that 24 these lands be dedicated by the project or by the 25 Flood Control District to public use under the 774 1 service, et cetera. 2 This is the document by which apparently 3 the decisive choice and request was documented by 4 Walter Gresh, is it not? 5 A. This appears Dr. -- or Acting Regional 6 Director Gresh's endorsement of the recommendations. 7 Yes, he signed the recommendations. 8 Q. Very good. 9 Now, turn back to page Bates Number 292. 10 A. Okay. 11 Q. I ask you whether you agree or disagree 12 that this was an accurate description of ecological 13 conditions in the affected area at the time this was 14 made, "The present trend in the area is toward lower 15 average water stages accompanied by replacement of 16 aquatic vegetation by sawgrass, shrinkage of lakes, 17 and increase in low hammocks and tree islands"? 18 A. Is there a question there, sir? 19 Q. Yes, sir. Do you agree that that 20 accurately described the present trend in the area at 21 the time that observation was made by Walter Gresh? 22 A. I do not know, sir. 23 Q. Is what -- was it Dr. Gresh? Was he a 24 Ph.D.? 25 A. I don't recall, sir. 775 1 Q. Well, is what Acting Regional Director 2 Walter Gresh said a fair description of what had been 3 the trend for some time, by which I mean 10, 20 -- 4 A. Sir, there's a -- 5 Q. -- years at the time this observation was 6 made? 7 A. This is a lengthy document that describes 8 quite a bit of stuff. And it says in one spot here, 9 for example, it says it's predominantly an area of 10 ponds, sloughs and sawgrass marshes interspersed with 11 tree islands and low hammocks. 12 So -- even, even this document referenced 13 sawgrass marshes in the refuge. 14 So, you know, I don't know whether this is 15 an accurate detailed description. 16 I think there is a reference here to 17 overdrainage and drought seasons, talking about 18 fires, and then it references the present trend in 19 the area is toward lower water stages which based on 20 my understanding was the whole idea for the main 21 canals that were put in was to drain the Everglades. 22 This is prior to any conservation areas. 23 Q. Okay. Then you agree as he stated on 24 page 3 of this document, Bates Number 292, "The 25 present trend in the area is toward lower average 776 1 water stages accompanied by replacement of aquatic 2 vegetation by sawgrass, shrinkage of lakes, and 3 increase in low hammocks and tree islands"? 4 MS. PONZOLI: That's been asked and 5 answered, Mr. Smith. You asked him. He said he 6 didn't know. The document speaks for itself. 7 MR. SMITH: Then he added a great deal 8 more. 9 MS. PONZOLI: Well, isn't he allowed to add 10 anything or do you just want to sit here all day 11 and say, "Is this accurate? Is this document 12 accurate? Is this accurate?" I mean, you have 13 the document. 14 MR. SMITH: He may say it's accurate, he 15 may say it's inaccurate, or he may say he 16 doesn't know. 17 THE WITNESS: I said I did not know. 18 BY MR. SMITH: 19 Q. Okay. 20 MS. PONZOLI: How is he going to know 21 anything that predates his physical occupying 22 the ground at the refuge? How does he know as a 23 fact that anything occurred? He can only read 24 about it, Mr. Smith, in the same way you can 25 read about it. 777 1 BY MR. SMITH: 2 Q. Is it part of your job to have an 3 understanding of the history of the refuge, 4 Mr. Neely? 5 A. Yes, sir. 6 Q. And do you make representations to the 7 public all the time about the characteristics of the 8 refuge suggesting that they are in historical 9 continuity with the ancient Everglades? 10 Generally those characteristics to the 11 general public are general characterizations because 12 the public is not expected to understand the detail 13 that you're referring to. 14 Q. All right, sir. But it is part of your job 15 to give a somewhat accurate historical explanation -- 16 A. Yes, sir. 17 Q. -- of the area and for that purpose it's 18 part of your job to read the literature that you deem 19 reliable to read, is it not? 20 A. Yes, sir. 21 Q. Now, let's look at Exhibit E. I'll put C 22 back in its place. 23 Exhibit E, Mr. Neely, is a, I believe a 24 single document entitled "A Quantitative Study Of The 25 Major Plant Communities Of Loxahatchee Refuge, 778 1 Florida," and which we may date only by reference, so 2 far as I know, to the 1952 written in the upper 3 right-hand corner before the thing was copied and by 4 the dates of the materials listed in the bibliography 5 which I note includes one reference to a work by 6 Robertson in 1953 on page 824, Bates 824. 7 A. Yes, sir. 8 Those two pages, by the way, are out of 9 sequence. 824, 825 are reversed. 10 Q. Yes, sir, they were out of sequence before 11 they were numbered, weren't they, before they were 12 Bates-numbered? 13 A. Right. 14 Q. At any rate, based upon the appearance of 15 this and the dates that we can gather, this appears 16 to be a Fish and Wildlife Service document dated in 17 1952 or 1953, does it not? 18 A. Sir, I don't, I can't authenticate the 19 origin or the author of this document. The only way 20 that you could possibly make that connection is the 21 fact that they use two paper maps dated 1952 that 22 show the refuge, but those maps are available to the 23 general public and all of our cooperators, so I don't 24 know who put this document together, whether it's the 25 Fish and Wildlife Service or not. 779 1 Q. Well, do you know where it was copied? 2 A. Based on the Bates number and our 3 discussion we had previously, I would say that this 4 came out of the files in Atlanta, Georgia, out of 5 probably what was then known as the Division of River 6 Basin Studies dealing with South Florida. 7 Q. And what is that division a division of? 8 A. The U.S. Fish and Wildlife Service. 9 Q. All right. 10 A. But they have papers other than just Fish 11 and Wildlife Service on file there. 12 Q. I understand. 13 Would you look at Bates Number 818, part 14 3(A) of that document. 15 A. Yes, sir. 16 Q. Do you agree or disagree or do you wish to 17 disclaim any knowledge of the accuracy of the 18 statement made there, "As mentioned in the previous 19 report, solid stands of sawgrass, such as occur in 20 other parts of the Glades, are scarce at 21 Loxahatchee"? 22 A. No, sir, I cannot because it says, "As 23 mentioned in the previous report," and I don't know 24 what previous report they're talking about. 25 Q. You have no knowledge of the truth of that? 780 1 A. No, sir. 2 Q. And as you sit here today you are unable to 3 verify or disclaim that proposition? 4 A. Yes, sir. I can interpret the data that's 5 found in this report, but I can't verify its 6 authenticity. 7 Q. Turn to page 822 of that, please, and 8 you'll see a kind of rough map drawn on what appears 9 to be some sort of a grid sheet, U.S. Department of 10 the Interior, Loxahatchee National Wildlife Refuge. 11 Do you recognize that as a characteristic 12 grid sheet or however I should -- 13 A. Yes, sir. 14 Q. -- describe it? 15 A. This is known as a base map for 16 Loxahatchee, a B map for Loxahatchee. 17 Q. And is that an authentic document of the, 18 I'm talking about the base map, the base map, it's an 19 authentic form used by the Service to portray 20 different geographical characteristics? 21 MS. PONZOLI: Object to form. 22 THE WITNESS: Geographical? 23 BY MR. SMITH: 24 Q. Yes. 25 A. This map is designed to depict the refuge 781 1 boundary -- 2 Q. And it's -- 3 A. -- at that particular moment in time. 4 Q. And it's something that was put together by 5 the Service. 6 A. Yes. 7 Q. I notice -- 8 MS. PONZOLI: Let us not be unclear. He's 9 referring I believe to the base map. 10 MR. SMITH: Yes, that's correct. 11 MS. PONZOLI: All right. 12 BY MR. SMITH: 13 Q. Now, as to what was drawn over it in kind 14 of rough and it's been, you'll agree, somewhat lost 15 in detail in the copying, appears to correspond 16 exactly, does it not, Mr. Neely, with the vegetative 17 cover map included as figure 8 for the year 1952 in 18 the synthesis report, Neely Exhibit 6, by Richardson 19 and others which has previously been marked in your -- 20 A. The answer is no, it does not correspond 21 exactly. 22 Q. In what ways does it not? 23 A. This is a very generalized 24 characterization. 25 Q. No, no, no (indicating). 782 1 MS. PONZOLI: Let's let the record be 2 clear. I think the record is unclear. 3 THE WITNESS: You were holding that 4 document there. 5 MS. PONZOLI: You are now referring to 6 Bates Number 690547 out of the synthesis report, 7 Mr. Smith? 8 MR. SMITH: Yes, figure 8, yes. 9 MS. PONZOLI: Okay. And you're asking him 10 to say whether or not 690548 corresponds with 11 10822. 12 MR. SMITH: All right. 13 MS. PONZOLI: Okay. 14 THE WITNESS: I can't say that it's exact, 15 but it appears to be a duplicate, duplicate type 16 information. 17 BY MR. SMITH: 18 Q. It appears somebody was trying awfully hard 19 to make it exact, doesn't it? 20 A. Yes, sir. 21 As a matter of fact, it references that 22 this map is a cover map of 1952 which is what this 23 reference is a cover map of 1952. 24 Q. Thank you, sir. 25 A. Which, by the way, happens to be totally 783 1 different than what Davis' map indicates. 2 Q. Yes, sir. Yes, sir. 3 In fact, the slough area shown in this 4 figure 8 as of 1952 shows only a very small area as 5 contained in slough, does it not? 6 A. I'm looking for the designation slough on 7 that. 8 Q. Number 4 on this one. 9 A. I don't see that depicted on the key here, 10 sir. It's not depicted on that key, so that makes 11 the maps not exact. 12 This depicts that as slough and this area 13 on this map is depicted as -- 14 MS. PONZOLI: That is the -- 15 THE WITNESS: I can't read it. 16 But there is no key for slough in this 17 document here. 18 There's no key for cattail in that document 19 either. 20 BY MR. SMITH: 21 Q. Well, let us take it stage by stage. 22 A. Okay. 23 Q. The last thing, my question to you was 24 comparing figure number 8 in the synthesis report and 25 particularly its designated area for slough indicated 784 1 by the numeral 4 with the Davis map which you 2 introduced quite properly into the conversation, this 3 figure number 8 shows the slough area as vastly 4 smaller than -- there are two areas of slough. The 5 slough areas are vastly smaller than Davis depicted, 6 are they not? 7 A. By whosever interpretation this was and 8 whatever their definition of a slough was, sir -- 9 Q. Okay. 10 A. -- vastly smaller than Davis. 11 Q. And -- 12 A. But, again, I want to -- you asked was this 13 identical exactly to that, and the answer is no. 14 Q. Well, the areas are identical, are they 15 not? 16 A. The areas defined, but the classifications 17 are not. 18 Q. And the classification in the areas in the 19 1952 quantitative study is designated not by the 20 characteristics that are listed in figure 8 but by 21 the letter L, is that not so, indicating water lily 22 sloughs? 23 A. White water lily sloughs? I'd have to look 24 at this map. 25 I can't interpret that map as showing an L 785 1 there, sir. That's just totally obliterated to my 2 view right there. 3 Q. You're talking about the larger of the two. 4 The smaller of the two has got a fairly 5 legible L, doesn't it? 6 A. I see other writing in there that I don't 7 understand. I think I see the letters TDS and N and 8 L. I see -- whether that's possible -- 9 MS. PONZOLI: I don't know. 10 BY MR. SMITH: 11 Q. At any rate -- 12 A. Whether that's an L with a line under it, I 13 have no -- I don't, I can't -- I'm having to guess 14 there. 15 Q. All right. At any rate, the shape of those 16 areas is the same in the two exhibits, is it not? 17 A. Yes, sir. 18 Q. Designated in one as slough and in the 19 other area as -- what did we read? 20 A. White water lily slough. 21 Q. And these dominant areas are significantly 22 different than as displayed on the Davis map, I 23 believe was your point. 24 A. Yes, sir. 25 Q. While we are looking at this Neely 786 1 Exhibit 6 which is the synthesis report, may I draw 2 your attention to Bates Number 548 -- 3 A. It will be 690548. 4 Q. -- and ask you to compare the distribution 5 of characteristic vegetation in Loxahatchee as 6 depicted as of 1952 and as of 1968 by figures 8 and 9 7 respectively. 8 MS. PONZOLI: I'm sorry. Would you read 9 the question back? I didn't understand it. 10 THE WITNESS: I didn't. 11 (Thereupon, a portion of the record 12 was read by the reporter.) 13 THE WITNESS: Okay, sir. I've compared 14 them, and I see them to be different. 15 BY MR. SMITH: 16 Q. They are quite significantly different, are 17 they not? 18 A. Quite significantly different. 19 Q. Would you tell us in what way they're 20 different? 21 A. Well, the configuration of the 22 classification of the vegetation, both of these are 23 listed. The first figure 8 is a cover map, 24 vegetation cover map for 1952 and figure 9 is a 25 vegetation cover map for 1968. 787 1 In comparing them, the classifications of 2 the generalized vegetation classifications are 3 different. The configuration of the vegetation 4 patterns are different. 5 Q. Well, as to the presence first of sawgrass, 6 pure sawgrass shown as, on figure 8 by the 7 characteristic figure number 1 and shown on figure 9, 8 16 years later, as the characteristic numeral 5, as 9 shown on these maps sawgrass had significantly 10 increased as a monoculture in the southern part of 11 the Loxahatchee by 1968, had it not? 12 A. According to someone's interpretation of 13 this, yes. 14 Q. And comparing the sawgrass mixed with 15 myrtle which is I believe number 2 in 1952 and 16 number 1 in 1968, would it be fair to say that 17 according to someone's interpretation, that is to 18 say, the person or persons who prepared these 19 figures, that area had contracted or grown smaller by 20 some significant area? 21 MS. PONZOLI: I object to form. 22 THE WITNESS: Well, it could be a 23 difference in the way that it was interpreted 24 also, sir. 25 So, yes, the area that's listed as number 2 788 1 on figure 8 which is listed as sawgrass, myrtle 2 you're comparing with classification number 1 on 3 figure 9 which is listed as sawgrass, mixed 4 grasses, myrtle and that area on figure 9 is 5 smaller than on figure 8. 6 BY MR. SMITH: 7 Q. Okay. 8 A. But it's not necessarily the same 9 classification. 10 Q. Well, it may have mixed grasses in addition 11 to myrtle. 12 A. And in addition it's a very general 13 classification. 14 Q. Nevertheless, it's significantly smaller 15 than the sawgrass, myrtle. 16 A. I'm not going to say significant. 17 MS. PONZOLI: I'm going to object to form. 18 I think you're adding a lot more interpretation 19 to what's available from highly generalized 20 maps, Mr. Smith. 21 BY MR. SMITH: 22 Q. You do not believe it can be concluded that 23 the sawgrass, myrtle stands as shown by somebody with 24 presumptive good faith and an effort to be accurate 25 in these two figures were considerably smaller in 789 1 1968 than they were in 1952? 2 A. I don't -- 3 MS. PONZOLI: Object to form. 4 THE WITNESS: I don't know. 5 MS. PONZOLI: It's asked and answered. 6 The figures speak for themselves, 7 Mr. Smith. You can show them to a judge and he 8 will decide in his own mind if it's 9 significantly smaller or not. You don't need 10 Mr. Neely to do that. 11 May we take a break, Mr. Smith? Oh, you 12 finish where, you know, come to -- 13 MR. SMITH: Let me go through this just a 14 moment. 15 MS. PONZOLI: Sure. 16 BY MR. SMITH: 17 Q. Mr. Neely, is there not significantly more 18 sawgrass out there at Loxahatchee now than there was 19 in 1952? 20 A. I don't know, sir. 21 Q. Yesterday reference was made to the SWIM 22 Plan supporting documents to the page I believe it 23 was 127 in which I believe in 1988 some vegetative 24 analysis by -- table 14. 790 1 (Thereupon, the document was handed 2 to the witness.) 3 A. (Witness reviewing the document). 4 Q. Do you remember giving some testimony about 5 that table at the time yesterday? 6 A. No, sir. 7 MS. PONZOLI: I don't recall. 8 BY MR. SMITH: 9 Q. Well, let me ask you this. With respect to 10 table 14 out of the SWIM Plan, the supporting 11 documents -- which bears a date of what, 1988? 12 A. Imagery from 4 April 1987. 13 Q. '87? 14 -- does that generally depict the 15 distribution and characteristics of vegetation at 16 Loxahatchee in 1987? 17 A. On April the 4th of 1987 it does. 18 Q. And is it -- 19 A. Based on the best available information. 20 Q. And is that generally accurate today? 21 A. I don't know, sir. 22 Q. It's changing from time to time? 23 A. Yes, sir. 24 Q. I'm going to show you just for purposes of 25 trying to connect up comfortably the figures in that 791 1 table with your senior biologist's estimate of the 2 species and characteristics, I'm going to show you 3 Dr. Maffei's declaration filed in the federal 4 litigation under date of September 4, 1990 and to 5 paragraph 8 in which he undertakes to describe 6 generally the vegetative characteristics and 7 distribution in percentages of the prevailing 8 vegetation and ask you whether it does not appear to 9 you that indeed Dr. Maffei's figures correspond to 10 the figures in table 14? 11 MS. PONZOLI: Correspond or contrast? 12 MR. SMITH: Correspond. 13 THE WITNESS: Okay. This is Dr. Maffei and 14 it was done in September 4 of '90. Okay. 15 Now, your question is does Dr. Maffei's -- 16 BY MR. SMITH: 17 Q. Don't the numbers in -- he combined a 18 couple of groups, but I think it will appear to your 19 eye very quickly which groups he combined. 20 The general distribution of -- 21 MS. PONZOLI: You need to give him a little 22 time, Mr. Smith. 23 MR. SMITH: Um-hum. 24 BY MR. SMITH: 25 Q. -- of species and the breakdown of 792 1 percentage of occupancy is about the same, is it not? 2 A. Well, I don't know what you mean by "is 3 about the same." It is not the same. 4 For example, the very first line of 5 Dr. Maffei says 35,000 acres of brush and the map you 6 handed me -- or the chart you handed me says 29,554. 7 Q. Take your time and read it. He says tree 8 islands and brush. 9 A. His figures are rounded off and, as you 10 say, compiled. 11 They're close. They are not the same. 12 For example, he, Dr. Maffei's document says 13 50,000 acres of sawgrass. Dr. Richardson's 14 interpretation says 49,786. 15 I think Dr. Maffei's is a, is a summary. 16 It's not an accurate satellite analysis or computer 17 analysis as this appears to be. 18 Q. But given the combinations that Dr. Maffei 19 adopted, the distribution of about 25 percent in tree 20 islands and brush, 35 percent in sawgrass, 36 percent 21 in wet, what he terms wet prairies and sloughs and -- 22 A. Let me see. 23 Q. -- 4 percent impacted by cattail or willow 24 roughly corresponds with that table, does it not? 25 A. Roughly corresponds, yes, sir. 793 1 Q. Okay. 2 Now my question to you and then we'll take 3 a break is when, if you know, did as much as 35 4 percent of the refuge become composed of sawgrass? 5 A. I don't know. 6 MR. SMITH: All right, sir. We'll take a 7 break. 8 (Thereupon, a recess was taken from 9 10:40 a.m., until 10:55 a.m.) 10 BY MR. SMITH: 11 Q. Look at Composite C, please, Mr. Neely. 12 A. Okay, sir. 13 Q. This is again the collection of 14 correspondence. And I'm referring to the 10-27-49 15 letter by Mr. Baker to the regional director. 16 A. Is there a Bates number on that? 17 Q. 128 -- 147. 18 A. And that's -- 19 Q. Fish and Wildlife Service document number 20 128. 21 A. Okay. 22 Q. This is October 27, 1949. 23 A. I'm confused as to which -- the DMM number 24 is? 25 Q. 147. 794 1 A. 147. 2 Q. Page 2 of that, ask you whether you agree 3 that this accurately describes a trend or conditions 4 existing at the time. The letter was written in 1949 5 and I'll quote it. 6 MS. PONZOLI: You're going to have to wait 7 for me. I found 10146. But since they are 8 not -- 9 THE WITNESS: 10146 is going to be -- look 10 at 10147. 11 MR. SMITH: October '49. 12 THE WITNESS: It's way toward the front. 13 MS. PONZOLI: It's in the front? 14 THE WITNESS: It's in the first quarter. 15 MR. SMITH: Look for the letter dated 16 October 27, 1949. 17 MS. PONZOLI: Okay. 18 THE WITNESS: I don't believe she has that. 19 I don't believe the document is the same as the 20 other's supposed to be. 21 MS. PONZOLI: Do you want to walk me back 22 to it? 23 THE WITNESS: Let's see. 24 THE COURT REPORTER: Do you want all this 25 on the record? 795 1 MS. PONZOLI: No, please. 2 (Discussion held off the record.) 3 BY MR. SMITH: 4 Q. Referring to the second page of that 5 document, ask you whether this excerpt in your 6 opinion accurately describes a trend that was 7 occurring at the time it was written October 1949, 8 the bottom of the first paragraph on Bates Number 9 148, "The normal trend towards higher elevation and 10 resultant sawgrass replacement of aquatic vegetation; 11 filling in of lakes or sloughs, and increase of tree 12 islands, heads, or low hammocks; is slowly 13 depreciating the value of this area for migratory 14 waterfowl"? 15 A. Before I can answer that, sir, I would need 16 to look and see -- 17 Q. Please do. 18 A. -- how that conclusion was drawn. First 19 I'd like to see... 20 Now your question, sir, concerning that 21 paragraph is do I agree with it? 22 Q. Yes. 23 A. That excerpt? 24 Q. Did it accurately reflect the condition 25 that was occurring at the time? 796 1 A. No, sir, I can't say that it was an 2 accurate description. I do not know. 3 Q. At the bottom of that page, again, Bates 4 148, can you verify the accuracy of this observation 5 by the author in his, Mr. Baker in his letter to the 6 regional director, "On your recent inspection of the 7 area it seemed to be the general opinion of Service 8 personnel that raising of the water level would be 9 beneficial by favoring the more desirable vegetation 10 at the expense of maidencane, sawgrass, and other 11 vegetation of low waterfowl food value"? 12 A. And what do you want from me on that, sir? 13 Q. Do you know whether that was the shared 14 opinion of Agency, of Service personnel at the time? 15 A. No, sir. I know that that appears to be 16 Mr. Baker's interpretation. 17 Q. All right, sir. Do you agree with his 18 observation that maidencane, sawgrass are vegetation 19 of low waterfowl food value? 20 A. No, sir, I wouldn't agree with that. 21 Q. You believe they are of good waterfowl food 22 value? 23 A. No, sir, I didn't say that. 24 Q. Well, I'm asking you. 25 A. I said that I did not agree with 797 1 maidencane, sawgrass and I don't know what "other 2 vegetation of low waterfowl food value" is. 3 Q. I'm asking you whether you agree with it to 4 the extent of his observation about maidencane and 5 sawgrass. 6 A. No, sir. 7 Q. Do you agree with it with respect to 8 sawgrass? 9 A. No, sir. 10 Q. Do you agree with it with respect to 11 maidencane? 12 A. No -- yes, sir. Well, for food value, yes, 13 maidencane would rate low. 14 Q. Sawgrass would rate in your opinion? 15 A. Medium. 16 Mr. Smith, you have to remember that I have 17 no earthly idea of Mr. Baker's background nor 18 training nor vocation prior to -- or this letter or 19 his experience either. 20 Q. Well, what was the refuge manager, 21 Everglades Refuge at the time? 22 A. I have no earthly idea. 23 Q. Well, what was the Everglades Refuge at the 24 time? 25 A. There was no -- to my knowledge there's 798 1 never been such an area. 2 The only place I've ever seen that 3 reference is in the letters from Mr. Baker to his 4 superiors which may be a concoction of Mr. Baker's. 5 Q. Okay. Let's look, please, at Exhibit G. 6 A. One second. I'd like to continue looking 7 through this. 8 MS. PONZOLI: Composite Exhibit G? 9 MR. SMITH: Yes. 10 THE WITNESS: I'd like to finish looking at 11 this just one moment, sir -- 12 BY MR. SMITH: 13 Q. All right, sir. 14 A. -- before I go ahead (reviewing the 15 document). 16 Okay. Going to G. 17 Okay, sir. I have G. 18 Q. Now, this by its cover page appears to be a 19 December 1958 Fish and Wildlife report by the Bureau 20 of Sport Fisheries and Wildlife of the 21 U.S. Department of the Interior. 22 Is that bureau part or was it then part of 23 the Fish and Wildlife Service? 24 A. Yes, sir. If you see the letterhead on the 25 next page, you'll see. 799 1 Q. That's page number Bates 512, a cover 2 letter signed by Walter Gresh. 3 A. Who at this time, by the way, is not acting 4 regional director; he is regional director. 5 Q. Yes, sir. 6 And it may be here that we have another 7 case of a page out of order. 8 If you'd look at it, Mr. Neely, it looks 9 like that cover page on which we've got the 10 sticker G, the first page that bears number 511, 11 really ought to be just ahead of 515. 12 A. Looks like it to me, too, sir. I can't... 13 Q. All right. Let's treat it that way. 14 You have then at 512 Mr. Gresh now signing 15 himself as regional director writing to the district 16 engineer of the Corps saying that as of December 17 1958, "The productivity," third paragraph, quoting, 18 "The productivity of the Florida Everglades as fish 19 and wildlife habitat has deteriorated at a rapid rate 20 because of excessive drainage, drought and fire." 21 A. I'm not -- 22 Q. I'm on the cover letter, third paragraph. 23 MS. PONZOLI: He's right here (indicating). 24 BY MR. SMITH: 25 Q. "Productive shallow sloughs and ponds are 800 1 being rapidly filled with shrubby or other less 2 desirable vegetation." 3 Again, Mr. Neely, can you say whether that 4 accurately reflected a condition that had been going 5 on for some time? 6 A. No, sir, I can't say that it accurately 7 reflected conditions at the time. 8 I can, I can say that based on my testimony 9 yesterday that that's the, the encroachment of woody 10 vegetation occurs during drawdowns, and that's to me 11 what this says. 12 Q. Can I presume upon your testimony this far 13 that you'd be willing to affirm that in the period of 14 time before a more finally tuned management of water 15 with a view to bringing higher levels of water for a 16 longer period of time to the refuge that the refuge 17 had suffered for quite a number of years the 18 deterioration of which Mr. Gresh spoke in December 19 1958? 20 A. Whew. 21 MS. PONZOLI: Do you want that read back? 22 THE WITNESS: Yes. 23 (Thereupon, a portion of the record 24 was read by the reporter.) 25 THE WITNESS: Mr. Gresh refers to the 801 1 Florida Everglades, sir, not just the refuge. 2 And I would say that during, my knowledge of the 3 area during the period 1958 was before any 4 levees were complete and any water was 5 impounded. 6 BY MR. SMITH: 7 Q. So? 8 A. His analysis, I have no knowledge of his 9 analysis, the basis of the accuracy of his analysis. 10 Q. You have no knowledge of the conditions 11 that prevailed in Loxahatchee in December 1958? 12 A. Other than what I read in these documents. 13 Q. Well, do you accept his observation there 14 in that paragraph as pertaining accurately to the 15 Loxahatchee in December '58? 16 A. I don't accept it accurately. I accept it. 17 I don't accept it for the accuracy or verify the 18 accuracy of it. I accept it for what it is. 19 Q. You accept it as Dr. Gresh's opinion. 20 A. Or whoever he had write this letter. 21 Q. Okay. 22 Now, the document itself, turning a few 23 pages over to number 520, purports to describe -- 24 A. 520? 25 Q. Yes. 802 1 A. Okay, sir. 2 Q. The paragraph 11, quoting, "Sawgrass and 3 willow stands have increased markedly in area of 4 density during the past 30 years as a result of 5 lowered surface water levels and groundwater tables. 6 This trend has resulted from increased drainage 7 activities in the South Florida - Everglades region, 8 and has been augmented by the recent drought." 9 Can you affirm that that is a generally 10 accurate description of conditions that had indeed 11 been occurring in the opinion of the Fish and 12 Wildlife Service for 30 years as of 1958? 13 A. It doesn't say that it's, that this has 14 been occurring in the Fish and Wildlife Service for 15 the past 30 years. Let's see. 16 I would -- let me go back just one minute. 17 I can't affirm to the accuracy of it. This 18 is a description that falls under the heading of 19 "Description Of The Area," and I can't affirm the 20 accuracy of whether it's been doing that for 30 years 21 or not. 22 Q. Can you agree that it appears to be the 23 position of the Wildlife Service as expressed by the 24 report forwarded by Mr. Gresh, the regional director, 25 to the Corps of Engineers at that time? 803 1 MS. PONZOLI: What was the position of the 2 Wildlife Service, please, Mr. Smith? 3 BY MR. SMITH: 4 Q. The description in paragraph 11. 5 A. Yes, sir, I'd say that that was what was 6 set forward to the District, apparently represents 7 the position of the Service. 8 Q. Okay. Now look at H, please, sir, 9 Composite Exhibit H. 10 A. Okay. 11 Q. This is the 1962 document. 12 MS. PONZOLI: What page? 13 Let me just see. F? 14 THE WITNESS: G, H. 15 MS. PONZOLI: Here's G. Here's G. 16 Here's H. 17 MR. SMITH: There it is. 18 MS. PONZOLI: Okay. 19 BY MR. SMITH: 20 Q. Identified at Bates page 837 -- 21 A. Sir, before we start in this document, I'd 22 like to look through it. 23 Q. Sure. I was just going to identify it as 24 prepared by Walter Stieglitz, wildlife management 25 biologist, South Florida National Wildlife Refuges, 804 1 June 1962 entitled "Ecology Of Vegetation Transects 2 A and B, Loxahatchee National Wildlife Refuge." 3 A. (Witness reviewing the document). 4 Okay, sir. 5 Q. Looking at 829, do you agree that the 6 author in this case in transect A and then on page 7 833 transect B is describing the percentage of 8 frequency of occurrence of particular species along 9 these transects in the Loxahatchee Refuge with a view 10 to comparing conditions in the vegetation cover at 11 least along those transects in those two years 1959 12 and 1962? 13 A. Okay. You're referring to page 829 as one, 14 and where is transect B? 15 Q. 833. 16 A. Okay, sir. 17 Yes. And that appears to be a comparison 18 of the percent of frequency of occurrence for a 19 listing of vegetation, plant species, comparing 1959 20 to 1962. 21 Q. Thank you. 22 Now look back at 827. 23 A. Okay, sir. 24 Q. Now, that was printed sideways, but it 25 appears to be a graph showing water levels from 1959 805 1 to 1962 as compared to the scheduled level. Do you 2 agree? 3 A. It's a graph, but I can't distinguish which 4 levels indicate which years. 5 Q. Well, you ought -- perhaps, I won't say 6 ought. You perhaps can recognize the distinctive 7 configuration of the scheduled level which is the 8 last line at the bottom. 9 A. I can recognize the scheduled level, yes, 10 sir. 11 Q. And the scheduled level at the time varied 12 from 14 feet mean sea level to 17 feet depending on 13 the season, did it not? 14 A. As recorded by the 1-8 gauge. 15 Q. All right. Where is that? 16 A. That's in the canal at headquarters. 17 Q. Is that gauge still there in the same 18 place? 19 A. Yes, sir, as far as I know. There is a 1-8 20 gauge that's being used. I don't know for sure if 21 it's in the, exactly the same location or not. 22 There's also a 1-8T gauge that I noticed 23 was used in reading some of this literature, that the 24 1-8T was used. 25 Q. Now, Dr. Stieglitz purports to show here -- 806 1 and I agree on this copy it's impossible to 2 distinguish particular years. But he does show one, 3 two, three -- four years which we know at least 4 generally are intended to represent the separate 5 years of 1959 to 1962. Do you agree? 6 A. Yes, sir. 7 Q. And would you agree that they show a very 8 erratic water level pattern not conforming to the 9 scheduled level? 10 A. Yes, sir, they are erratic, no different 11 than what we observe today. 12 Q. Very difficult to conform to a scheduled 13 level? 14 A. To a straight line scheduled level. 15 Q. Why is that? 16 A. Well, you're either above it or below it. 17 Q. But do you find deviations from the 18 scheduled level to this degree? 19 A. Do I find them when? 20 Q. Now. 21 A. There are quite a bit of deviations to a 22 straight line schedule. On an area 146,000 acres 23 it's extremely hard to regulate water levels. 24 Q. Is a difference of three feet from the 25 scheduled level a significant difference? 807 1 A. I would say that was significant. 2 Q. Here they had in these years a three feet 3 or more difference in three of four years, did they 4 not? 5 A. Considerably below the 14 foot minimum. 6 And as my -- as I remember, '61, '62 were drought 7 years. 8 Q. And in a couple of instances where the 9 place flooded out above the 15 and a half to 17 foot 10 level. 11 A. Well, I wouldn't characterize it as flooded 12 out. 13 Q. Okay. Significantly above. 14 A. Significantly above. I spoke -- 15 Q. Has that occurred today? 16 A. I spoke of these two instances the other 17 day. 18 Does what occur today? 19 Q. Those deviations. 20 A. To these extremes during drought years? 21 Yes. Or during severe rainfall events, yes. 22 Q. Look back on page 826. In the third 23 paragraph the observation is made by Dr. Stieglitz, 24 "Changes in plant composition therefore are a 25 reflection of erratically fluctuating water levels 808 1 rather than the effects of scheduled levels." 2 Do you think that is a fair 3 characterization of the changes in plant composition 4 that he shows in tables 1 and 3? 5 A. As it pertains to -- 6 MS. PONZOLI: Object to form. 7 THE WITNESS: -- this report. 8 BY MR. SMITH: 9 Q. As it pertains to what, sir? 10 A. As it pertains to this report. 11 Q. Yes, sir. 12 And do you agree generally that such 13 fluctuations in water levels when they occur 14 erratically and when they fluctuate in this way tend 15 to produce changes in vegetation? 16 MS. PONZOLI: Object to form. 17 THE WITNESS: No, sir, I wouldn't agree 18 with that statement. 19 I find Mr. Stieglitz' list of vegetation 20 very interesting. 21 BY MR. SMITH: 22 Q. Yes, sir. 23 MS. PONZOLI: There's no pending question, 24 Mr. Neely. 809 1 BY MR. SMITH: 2 Q. Now look at Exhibit I, please. 3 MS. PONZOLI: Which one? 4 MR. SMITH: I. 5 I'd like a minute to look through this 6 report, sir. 7 BY MR. SMITH: 8 Q. Um-hum. 9 A. (Witness reviewing the document). 10 Okay, sir. 11 Q. Page 16 of the report. 12 A. Page 16. 13 Q. Of the report, page 477 of the Bates. 14 A. Okay, sir. 15 Q. We're referring to the "Report Of The 16 Special Study Team Of The Florida Everglades August 17 1970" by five persons whose names and positions are 18 described there. 19 Have you seen this report before? 20 A. Yes, sir. 21 Q. What occasioned this report, can you tell 22 us generally? 23 A. It says, "Primarily because of the deer 24 problem, a study team was appointed." 25 Q. I see. 810 1 Now, on page 477, the Bates, in the second 2 paragraph the report states, "The principal 3 vegetational components of the Conservation Areas are 4 the sawgrass, wet prairie, slough, aquatic, and tree 5 island communities. Detailed descriptions of these 6 various communities and their respective community 7 types appear in various available publications and 8 reports. 9 "Dramatic changes in the original 10 vegetative matrix have occurred in the Conservation 11 Areas, particularly Areas 1 and 2. Although intense, 12 widespread fire during drought periods has 13 undoubtedly contributed to these changes, the 14 overriding cause has been alteration of the historic 15 hydroperiod." 16 In your opinion does that accurately 17 describe a process and conditions existing as of 18 August 1970 in Conservation Area Number 1 of the 19 Loxahatchee? 20 A. I have a couple of questions. It raises a 21 couple of questions. Before I agree to it or before 22 I could agree to it, I would need some explanation. 23 They talk about alterations of the 24 hydroperiod. I don't know whether they mean up or 25 down. 811 1 I also have to qualify that because he 2 says, "The principal vegetational components of the 3 Conservation Areas," which means it's more than 4 Area 1. 5 Q. Yes. 6 A. He does reference dramatic changes in the 7 original vegetative matrix particularly in 1 and 2 8 and references fire as undoubtedly contributing. And 9 then he says, "Alteration of the historic 10 hydroperiod," but he doesn't say higher or lower. 11 Q. Right. 12 Whether higher or lower, do you agree? 13 A. Do I agree to what, sir? 14 Q. That particularly in Areas 1 and 2 dramatic 15 changes in the original vegetative matrix have 16 occurred, the overriding cause of which has been 17 alteration of the historic hydroperiod? 18 A. I agree that's the study team's assessment 19 of that, yes, sir. 20 Q. And do you have an opinion as to whether 21 that was an accurate assessment? 22 A. I do not know. 23 Q. Do you agree with the observation next 24 occurring, same page, "Such alterations in the 25 hydroperiod have essentially eliminated the tree 812 1 island communities and the once extensive whitegrass 2 (Rhynchospora) flats in Conservation Area 2"? Do you 3 agree? 4 MS. PONZOLI: Agree with what? 5 BY MR. SMITH: 6 Q. Alterations in the hydroperiod have 7 essentially eliminated the tree island communities 8 and the once extensive whitegrass flats in 9 Conservation Area 2. 10 MS. PONZOLI: I think the question has been 11 asked and answered. 12 THE WITNESS: I do not know, sir. 13 BY MR. SMITH: 14 Q. In fact, Dr. Davis' map portrayed 15 Conservation Area Number 2 as being of the same 16 dominant vegetative characteristics as Number 1, did 17 it not? 18 MS. PONZOLI: I'm going to object, 19 Mr. Smith, since you have -- 20 THE WITNESS: I have not -- 21 MS. PONZOLI: Wait, wait, Mr. Neely. 22 -- you have not superimposed any 23 delineation of 1 and 2, so we're guessing as to 24 where the conservation areas actually fall on 25 the Davis map. 813 1 MR. SMITH: If he -- 2 MS. PONZOLI: So... 3 MR. SMITH: If he says he can only guess at 4 that, he doesn't know where 2 is on that map -- 5 MS. PONZOLI: Well, you've got him either 6 way. If you say he can't figure out where 2 is, 7 you've got him because he can't figure out the 8 water conservation area, and if you ask him a 9 specific question, then you've got him because 10 he doesn't have any specific knowledge. 11 MR. SMITH: I'm not trying to get him. I'm 12 trying to get him to say -- 13 MS. PONZOLI: You're trying to get him to 14 authenticate historic documents which you've 15 found in various locations around the country. 16 The documents speak for themselves, 17 Mr. Smith. That's what my objection is. 18 You can introduce these documents to the 19 judge, say, "Judge, these are the documents. 20 They're not disputing that these documents came 21 out of their files, and this is what they say." 22 But you want Mr. Neely to corroborate each 23 and every statement. And we keep doing this 24 hour after hour. He keeps saying, "I don't 25 know. I didn't write this report. I wasn't on 814 1 the ground at this time." 2 BY MR. SMITH: 3 Q. With that qualification, explanation and 4 protestation, Mr. Neely, do you agree that the Davis 5 map depicts what is now Conservation Area 2A as being 6 of the same predominant vegetative characteristics as 7 what is now the Loxahatchee? 8 A. No. 9 Q. In what differences? 10 A. I do not see the conservation area 11 boundaries so, therefore, I cannot agree to that. 12 Q. Well, does 2A lie directly south of 1? 13 A. Yes, sir. 14 Q. And do you lack confidence in your ability 15 to locate in general outline the location of 1 on 16 that map? 17 A. To be specific to the detail you want, the 18 answer is yes. 19 Q. And would you venture this far, that 1 is 20 separated from 2A by the Hillsboro Canal? 21 A. Yes. 22 Q. Would you venture this far, that the Davis 23 map shows a pond, slough and lake area with 24 interspersed tree islands separated by the Hillsboro 25 Canal? 815 1 A. It also shows other things, shows another 2 separation, too -- 3 Q. What's that? 4 A. -- in addition to what you just said. 5 Whatever this code is here which happens to 6 be sawgrass. 7 Q. Talking about the crosshatch -- 8 A. Yes, sir. 9 Q. -- sawgrass with wax myrtle thickets? 10 A. Yes, sir. 11 Q. Water Conservation Area 2A, in fact, 12 extends some little distance westward from the 13 western boundary of number 1, does it not? 14 A. No, sir. No, sir, it does not. 15 Q. Does not? 16 A. No, sir. 17 Q. Is the S-7 structure west of the S-6 18 structure? 19 A. S-7 structure? I don't know of an S-7 20 structure, sir. 21 Could you show me an S-7 structure? 22 Q. (Indicating). 23 A. I'd say the S-7 structure's southwest of 24 the S-6. 25 Q. Okay. I'm talking about -- I'm just 816 1 verifying your impression. 2 A. That's not, that's not what your question 3 was. 4 Q. Well, you want to point out that there is 5 in the area now composed within 2A shown on the Davis 6 map significant area of sawgrass marshes with wax 7 myrtle thickets, the crosshatched area; is that 8 correct? 9 A. Yes, sir. 10 Q. Yes, sir. 11 My suggestion to you about the western 12 boundary was meant to, simply to verify you in that 13 impression. 14 A. Based on Davis' map, there are three major 15 classifications. 16 Q. All right. What is whitegrass? 17 A. It's the vegetation found in wet prairie. 18 It's a general characterization of the 19 grasses found in a wet prairie. 20 Q. Are there tree islands in 2A now? 21 A. Yes, sir. 22 Q. In the report of 1970, back on page 477, it 23 is stated that, "Alterations in the hydroperiod have 24 essentially eliminated the tree island communities 25 and the once extensive whitegrass in Conservation 817 1 Area Number 2." 2 Do you know whether that was so or not at 3 the time? 4 A. No, sir, I don't. 5 Q. And it goes on to say, "Also, the 6 willow-myrtle thickets, once widespread in the 7 northern portion of Area 2, now no longer exist." 8 Do you know whether that's so? 9 A. No, sir. 10 Q. Is it so now? Are there willow-myrtle 11 thickets widespread in the north area of number 2 12 now? 13 A. I don't know what your definition of 14 widespread is, but there are willow-myrtle thickets 15 in Area 2. 16 Q. The report goes on to say, "A few other 17 formerly abundant species that are either now 18 uncommon or rare include primrose willow, groundsel 19 bush, wax myrtle, red bay, red maple, and two species 20 of beak rushes." 21 Do you know whether that was so at the 22 time? 23 A. No, sir. 24 Q. Is it so now? 25 A. Is this statement so, "A few other formerly 818 1 abundant species that are either now uncommon or 2 rare"? 3 Q. Yes. 4 A. I'd say no. 5 Q. In Conservation Area Number 2? 6 A. I would say no. 7 Q. "These changes have been accompanied by an 8 increase in the slough aquatic communities and their 9 component species (white water lily, spike rushes, 10 flag, and submerged aquatics), an apparent increase 11 in the density of sawgrass in some areas, extensive 12 invasions of cattail in certain locations, and the 13 reversion of areas formerly dominated by emergent 14 vegetation to essentially open water with abundant 15 submerged plants." 16 A. And what are you asking me? Is that true 17 or not? 18 Q. Was that true at the time? 19 A. I do not know. 20 Q. Is it true now? 21 A. I don't know, sir, because I'm not in 22 charge of Area 2. 23 Q. Well, it's your neighbor, isn't it? 24 A. It's the water conservation area adjacent 25 to Loxahatchee. I would say no, it's not true. 819 1 Q. Not true. 2 A. And I'd have to qualify that because some 3 of it probably is and some of it probably isn't. 4 Q. What parts are true now and what parts are 5 untrue? 6 A. Well, the vegetation has changed generally 7 again because they've changed the way they manage the 8 water there. They've lowered the water levels in 9 Area 2 for several years. 10 Q. Since when? 11 A. I don't recall the exact date. 12 Q. All right, sir. Thank you. 13 Let's go now to another subject. 14 Do you know what the primary purposes of 15 the project Central and Southern Florida flood 16 control project were when it was conceived, 17 authorized and built? 18 A. Flood control, water storage, in two words. 19 That was the major primary justification for the 20 project. 21 Q. Look at B-2, please. 22 A. B-2? 23 Q. Um-hum. 24 A. B-2. Okay, sir. 25 Q. Have you seen this letter by the Secretary 820 1 of the Interior William Warne to General Wheeler of 2 the Department of the Interior before? 3 A. Yes, sir. 4 Q. It's printed in House Document 643? 5 A. Yes, sir, it's reprinted there. 6 Q. Reprinted there. 7 And it contains an excerpt placed there at 8 the request of the director of Fish and Wildlife 9 Service Albert Day as requested in his March 17, 1948 10 letter to a Mr. Hoyt of March 17. 11 A. What are you looking at now? 12 Q. That's B-1. 13 A. Oh, okay. 14 Q. Does it not? 15 MS. PONZOLI: I need to get with you. 16 You're in B-1? 17 MR. SMITH: I'm asking the witness to 18 verify that B-1 requests in paragraph 3 on the 19 second page that the Secretary of the Interior 20 expressing himself to -- 21 MS. PONZOLI: It's possible our B-1 is not 22 the same as yours, Mr. Smith. I'm in B-1 and I 23 have a two-page document. 24 Are you sure yours is B-1 that we're 25 talking about? 821 1 MR. SMITH: Yes. 2 MS. PONZOLI: But look at the second page. 3 You said paragraph 3. 4 MR. SMITH: Yes. 5 What do you have? 6 THE WITNESS: I have the same thing you got 7 as B-1. 8 MS. PONZOLI: But it only has two 9 paragraphs on the second page. 10 MR. SMITH: Numbered paragraph 3. 11 MS. PONZOLI: I'm sorry. I'm sorry. 12 MR. SMITH: I'm simply asking the witness 13 to verify that the director of the Fish and 14 Wildlife Service on March 17, 1948 by 15 paragraph 3 of his letter to Mr. Hoyt asked that 16 the comprehensive report to the District 17 engineer be augmented by including this 18 paragraph 3, "The extensive changes wrought in 19 the Everglades will result in the loss of 20 certain unique wildlife habitats. The Fish and 21 Wildlife Service decries this loss even though 22 it may be overshadowed by benefit to the 23 fishery." 24 MS. PONZOLI: And I will continue my 25 continuing objection that at the time of this 822 1 letter in March 17th, 1948 unless Mr. Neely 2 advises you otherwise, which I'm sure he's not 3 going to, he had no knowledge of this document. 4 It says what it says. All he can do is say, 5 "Yes, you read it accurately, Mr. Smith." 6 That's all he's able to tell you. 7 MR. SMITH: Well, I can ask him, please, 8 and I do ask him whether from his knowledge of 9 the history of this project and of the 10 Loxahatchee with which he is somewhat familiar 11 this thought of the decrying by the Fish and 12 Wildlife Service of the loss of certain unique 13 wildlife habitats was placed in the record of 14 Congress in the Authorization Act at the request 15 of the Fish and Wildlife Service. It originated 16 in this letter which is B-1, it was carried 17 forward by the Secretary of the Interior in the 18 letter which is B-2, and it showed up, as the 19 witness knows, in the reprinting of it in House 20 Document 643. 21 MS. PONZOLI: Object to the form. That's a 22 large number of questions all put together. 23 You may answer. 24 THE WITNESS: Could you give me a question 25 that I can answer, sir? 823 1 BY MR. SMITH: 2 Q. Yes. 3 A. Okay. 4 Q. Do you acknowledge that this decrying of 5 the loss of certain unique wildlife habitats by the 6 Fish and Wildlife Service was purposefully inserted 7 in the Congressional record by the Department of the 8 Interior at the request of the Fish and Wildlife 9 Service? 10 A. I don't know, sir. 11 Q. You don't know. 12 A. I don't know whether it was purposely 13 inserted in the Congressional record by or not. 14 Q. Well, was it inserted? 15 A. It was, it was inserted, yes, sir. 16 Q. All right. What were the unique wildlife 17 habitats that the Fish and Wildlife Service then 18 contemplated would be lost? 19 A. I don't know, sir. 20 Q. Well, what in retrospect does Mr. Burkett 21 Neely, the manager of this refuge, perceive was lost 22 in consequence of that project? 23 MS. PONZOLI: Object to form. That's a 24 totally improper question. "What in your mind 25 would have been the loss?" That's not an 824 1 appropriate question for these proceedings. 2 MR. SMITH: I think it's -- 3 MS. PONZOLI: We are litigating a SWIM Plan 4 that goes to Florida law and breaches of water 5 quality standards in Florida law, and we are now 6 going back into the minds of people half a 7 century ago and speculating as to what they 8 thought and felt and wanted at that time. 9 I will move to strike all of this, 10 Mr. Smith. It's just improper. 11 You can introduce the documents if you can 12 get them in and they say what they say and you 13 can make whatever arguments the Cooperative is 14 happy in its conscience to make about what has 15 happened in this system. You are free to do 16 that. But this is wrong. 17 BY MR. SMITH: 18 Q. Mr. Neely, will you answer, please? 19 A. Is there a question pending? 20 Q. Yes. The question was what unique wildlife 21 habitats in Burkett Neely's opinion, if any, were 22 lost in consequence of the Central and Southern 23 Florida project? 24 A. I don't know what they're referring to, 25 sir. And since I don't know what they're referring 825 1 to in some report titled a comprehensive report that 2 appears to be over 70 paragraphs and this is 3 referring to paragraph 48, I have no idea what 4 they're referring to. 5 Q. And you have no idea what, if any, unique, 6 valuable habitats were lost in consequence of this 7 project? 8 A. I have no idea what they are referring to 9 in this statement. 10 Q. Well, without regard for what they are 11 referring to, I'm asking you whether, in fact, 12 Mr. Neely, some unique, valuable wildlife habitats 13 were lost in consequence of the project. 14 MS. PONZOLI: Would the Cooperative like to 15 stipulate to what has been lost by the project 16 that was built for its benefit? 17 MR. SMITH: I would like the witness to 18 testify. 19 MS. PONZOLI: The witness has been 20 testifying to a whole string of improper 21 questions for hours now, Mr. Smith. 22 BY MR. SMITH: 23 Q. Are you able to -- 24 MS. PONZOLI: And I'm glad it brings 25 pleasure to your face that you're engaging in 826 1 this. You are a very respected jurist, and I 2 find it offensive. 3 BY MR. SMITH: 4 Q. Well, are you able to answer the question, 5 Mr. Neely? 6 A. No, I'm not. 7 Q. All right. Is that because you don't know? 8 A. I don't -- 9 Q. Do you know whether any valuable habitats 10 were lost in consequence of the project? 11 A. Yes, sir. 12 Q. Were there? 13 A. Everglades habitats were lost because of 14 the project. 15 Q. Okay, thank you. 16 Were any lost in what later became the 17 refuge? 18 A. I don't know. 19 Q. Do you agree that, referring to Composite 20 Exhibit C again -- 21 MS. PONZOLI: Mr. Smith, do you intend to 22 attach any of these documents that we're talking 23 about to the record? Because our record will 24 have multiple references to exhibits that are 25 not part of the record. 827 1 MR. SMITH: They are in the record. 2 MS. PONZOLI: How are they in the record? 3 MR. SMITH: They have been marked. 4 MS. PONZOLI: And you've introduced them 5 into the record? 6 MR. SMITH: Yes. 7 MS. PONZOLI: When did that happen, 8 Miss Court Reporter? 9 THE COURT REPORTER: I marked them this 10 morning. 11 MS. PONZOLI: And they were introduced into 12 the record at that time before we came? 13 THE COURT REPORTER: No, ma'am. 14 MS. PONZOLI: They just don't become 15 attached to the record, Mr. Smith, by some 16 magical act before. 17 I mean, I'm just asking you. If you're 18 going to introduce them in, if you had them 19 marked beforehand and you are attaching them to 20 this deposition, then -- 21 MR. SMITH: I intend that to occur, yes. 22 MS. PONZOLI: All right. That's all right. 23 MR. SMITH: I premarked them yesterday. I 24 asked the court reporter to put her initials on 25 the slips this morning. And I'll make the 828 1 formal -- 2 MS. PONZOLI: That's fine. 3 I just want to know that the formal 4 attachment will occur and that I won't receive a 5 deposition some day that references a whole lot 6 of composite exhibits that aren't attached 7 because they were never -- 8 MR. SMITH: That's correct. 9 MS. PONZOLI: -- introduced. 10 MR. SMITH: You will not. 11 BY MR. SMITH: 12 Q. Composite Exhibit C, Fish and Wildlife 13 Service document number 128, once again this is the 14 October 27, 1949 letter to the regional director by 15 Mr. Baker, on the second page at 148 appears to be an 16 acknowledgment by Mr. Baker that, "The purposes of 17 the retention units," referring to the three 18 retention units now known as water conservation 19 areas, are first, "To provide storage for excess 20 rainfall and prevent flood damage," second, "To 21 provide surface and subsurface irrigation water for 22 farms, groves, and grazing lands during winter 23 months," and, third, "To maintain an adequate head of 24 fresh water in the porous rock to prevent 25 infiltration of salt water into the well fields of 829 1 the eastern rim of South Florida." And he refers at 2 the bottom of that paragraph to the primary purposes 3 of these areas under discussion as a proposed refuge. 4 When you, Mr. Neely, acknowledged that the 5 original purpose was flood control and -- what did 6 you say, water storage? 7 A. Yes, sir. 8 Q. -- did you intend to acknowledge that as 9 stated here, these retention areas were created for 10 the purposes as Mr. Baker stated which I've quoted? 11 A. That's Mr. Baker's interpretation of three 12 purposes. Three purposes. It doesn't say they're 13 the primary. It just says "the purposes." 14 Q. So do you agree that those were the primary 15 purposes as conceived at the time? 16 A. No, sir. That's Mr. Baker's interpretation 17 of the -- he says, "The purposes of the retention 18 units" are one, two, three. He doesn't say primary 19 purposes. 20 Q. Well, he says, "Development and management 21 measures should be designed to provide the most 22 favorable wildlife habitat conditions that will be 23 possible without conflicting with the primary 24 purposes of the proposed refuge and other water 25 retention areas." 830 1 A. Yes, sir. I have no idea whether he's 2 referring to, to what he says purposes above or to 3 the primary purposes as described by the House 4 Document. 5 Q. Well, let's make it short. Do you agree 6 that the primary purposes described by the House 7 Document includes water storage for excess rainfall 8 and to prevent flood damage? 9 A. Yes, sir. I've already agreed to that. 10 Q. Do you agree that the primary purpose was 11 to provide irrigation and drainage for the farm area? 12 A. That's water storage, sir. 13 Q. Yeah. 14 Do you agree that the primary purposes -- 15 A. One of the primary purposes. 16 Q. -- included -- 17 A. Amongst others. 18 Q. -- included to provide irrigation and 19 drainage areas for the farms? 20 MS. PONZOLI: Asked and answered. 21 THE WITNESS: Yes. I said in addition -- 22 BY MR. SMITH: 23 Q. And third -- 24 MS. PONZOLI: Let him finish. 25 THE WITNESS: In addition to other areas, 831 1 not just the farm. 2 BY MR. SMITH: 3 Q. Yes. 4 And, third, to provide an adequate head to 5 prevent salt water intrusion? You agree that those 6 were the primary purposes? 7 A. I'd have to review the document and see if 8 it spells that out as a primary purpose. 9 Q. All right. I'm referring now to House 10 Document 643, page Arabic 2, paragraph numbered 5. 11 THE WITNESS: We don't have that. 12 MS. PONZOLI: We don't have it? 13 THE WITNESS: That document along with the 14 Davis map were two items not printed in this 15 package but entered as an exhibit. 16 MS. PONZOLI: All right. Okay. 17 So where did you want us to go to? 18 MR. SMITH: I wanted you to look at 19 paragraph 5 of the House Document. 20 MS. PONZOLI: Right. 21 MR. SMITH: And would the witness please 22 state whether he acknowledges that the -- 23 MS. PONZOLI: Once more with feeling, I 24 will tell you that he is not compelled to 25 acknowledge anything. The document speaks for 832 1 itself. It says what it says. And it's not 2 necessary to walk my witness through every 3 document that the Cooperative has been able to 4 bring up regarding the building of this project 5 and that they believe it was built for their 6 service and to benefit them and whatever changes 7 occurred in the Everglades were okay because 8 everyone contemplated those would occur and the 9 farmers came first. 10 The document says what it says, Mr. Smith. 11 You don't have to acknowledge anything. 12 You can read it for him, Mr. Neely, if you want 13 to and you can -- 14 THE WITNESS: I'm reading it for myself. 15 MS. PONZOLI: -- say, "Yes, Mr. Smith, you 16 read it right," or, "Yes, I will read it." 17 THE WITNESS: I don't see the word primary. 18 Let's see. "In addition to these primary 19 purposes..." 20 MS. PONZOLI: Would you like him to read 21 part of it, Mr. Smith? 22 THE WITNESS: The document says, and this 23 is House Document number 643, paragraph 5 on 24 page 2, says, "Development of the comprehensive 25 plan of improvement would afford a high degree 833 1 of flood protection throughout this area. It 2 would provide for removal of excess waters in 3 wet seasons and for their control, storage and 4 use in maintaining water levels during dry 5 periods. Adequate control of water levels is 6 essential for agricultural use of lands in the 7 area and for maintenance of municipal water 8 supplies. The comprehensive plan would benefit 9 in varying degrees over 2,300,000 acres of land 10 as well as numerous cities and towns. In 11 addition to these primary purposes," and I think 12 I've read two. 13 BY MR. SMITH: 14 Q. In addition to the primary purposes, there 15 would be some benefits, some other benefits which 16 included -- 17 A. One other benefit it included, preservation 18 of fish and wildlife resources. 19 Q. All right. But do you recognize that 20 hierarchy of purposes as originally conceived? 21 MS. PONZOLI: We recognize that it says 22 what it says, Mr. Smith. That's all we're 23 compelled to do. It reads as it reads. 24 BY MR. SMITH: 25 Q. Have you ever made the public 834 1 representation that one of the primary purposes of 2 this project was to make possible the preservation of 3 fish and wildlife in the area? 4 A. As a primary purpose? 5 Q. Yes. 6 A. I don't recall doing that. I may have 7 spoke of that in very general terms. 8 Q. Have you ever made the public observation 9 that the Loxahatchee was created in mitigation of the 10 purposes carried out by the creation of the project? 11 A. That was a general characterization always 12 followed by an explanation that the word mitigation 13 wasn't used during the formation of the refuge. 14 Q. That's right. It's a new word, isn't it? 15 A. Yes, sir. 16 Q. How did you happen to choose that word? 17 A. It's, it's a word that most people of the 18 general public tend to understand and be familiar 19 with. 20 Q. But it's untrue, isn't it? 21 MS. PONZOLI: Ah, I object to the use of 22 that word, Mr. Smith. That is very unfair. 23 BY MR. SMITH: 24 Q. Well, it's untrue that this was created in 25 mitigation of the project purposes, isn't it? 835 1 A. (No response). 2 Q. Isn't it untrue? 3 A. Is the formation of the refuge -- is using 4 the word mitigation to say the refuge was formed for 5 the purpose untrue? 6 Q. Yes. 7 A. It was not a word that was used during the 8 discussion because it's a new word. 9 And as I said, I characterized that when I 10 use it as a word that was not used during the, during 11 the time the refuge was being formed. 12 Q. But when you use the word today, you're 13 using it in the sense in which it's understood today 14 presumably, is that so? 15 MS. PONZOLI: You're arguing with the 16 witness, Mr. Smith. He has explained that he 17 explains to the public when he uses that word 18 and he has explained to you why he uses it. 19 If you don't like it, you certainly are 20 free to argue with the judge about the use of 21 it, not with the witness. 22 MR. SMITH: I'm asking him -- 23 MS. PONZOLI: He answered. 24 MR. SMITH: -- isn't it -- I will ask him 25 again. 836 1 MS. PONZOLI: The same question? 2 BY MR. SMITH: 3 Q. Isn't it untrue to say that the Loxahatchee 4 was created at the time it was created in mitigation 5 for the principal purposes of the project? 6 MS. PONZOLI: It's been asked and answered. 7 He explained to you what the explanation is. 8 Would you like to hear the explanation 9 again, Mr. Smith? 10 Please, Mr. Neely, explain to him again how 11 you explain to the public and how you explain to 12 him what the word means because Mr. Smith does 13 not understand your explanation. Please do it 14 for him again as many times as Mr. Smith wants 15 to spend his one day of deposition of you asking 16 the same questions. 17 THE WITNESS: When I use the word 18 mitigation in a talk to the general public, I 19 say that the refuge was formed, was established 20 as mitigation, as what would now be considered 21 mitigation for loss of wetlands and that 22 although the word mitigation wasn't even used 23 during those periods of time, the consequence of 24 forming the refuge resulted in the preservation 25 of wetlands for migratory birds. 837 1 MS. PONZOLI: You may characterize that 2 however you choose and whatever your conscience 3 allows you to, Mr. Smith. 4 BY MR. SMITH: 5 Q. Regardless of the word, have you ever seen 6 it contemporaneously, the thought, ever 7 contemporaneously expressed in the 1940s or '50s with 8 respect to the creation of the refuge? 9 MS. PONZOLI: It's been asked and answered. 10 He explained that even though that word wasn't 11 used at that time. 12 BY MR. SMITH: 13 Q. Have you ever seen the thought expressed 14 contemporaneously in any words? 15 A. The thought of mitigation? 16 Q. Yes. 17 A. I've never seen the word mitigation used in 18 the 1940 discussions. 19 I have seen the preservation of areas for 20 migratory birds used. 21 Q. That's what you mean by mitigation? 22 A. Essentially. I gave you my explanation of 23 mitigation. 24 Q. All right. Let's put this back. 25 A. And I would like to take a break. 838 1 Q. Okay. 2 MS. PONZOLI: Are you going to take a lunch 3 break or just a break? 4 THE WITNESS: I don't know. That's up to 5 you guys. 6 MS. PONZOLI: I don't care. It's 7 Mr. Smith's choice. 8 THE WITNESS: I was just going to go to the 9 rest room. I drank two cups of coffee. 10 Would you like to take a lunch break, 11 Mr. Smith? 12 MR. SMITH: Let's take a five-minute break. 13 (Thereupon, a recess was taken from 14 12:02 p.m., until 12:08 p.m.) 15 BY MR. SMITH: 16 Q. Mr. Neely, let me show you Neely Exhibit 17 Number 1 which is your, this publication. 18 A. Briefing statement. 19 Q. Sorry? 20 A. That is a briefing book, if I can get a 21 chance to look at it to tell you whether it's 22 complete or not. 23 Q. Yes. 24 Referring again to this mitigation thought, 25 reading from an unnumbered interior page here which 839 1 I'll hand to you, under the heading Arthur R. 2 Marshall Loxahatchee National Wildlife Refuge there 3 are several points with stars, first of which is, 4 "Loxahatchee National Wildlife Refuge was established 5 in 1951 as mitigation for the massive public works 6 project built for the people of Florida by the Army 7 Corps of Engineers." 8 Is that the typical usage of the term 9 mitigation that you have used? 10 A. I'd like to look at this document just a 11 minute (reviewing the document). 12 No, sir, that's not the typical term that I 13 use it in. 14 Q. How do you typically use the term? 15 MS. PONZOLI: It's been asked and answered 16 multiple times and I have indicated that if you 17 wish to spend the rest of your day for as long 18 as we can, we'll go on answering the same 19 questions over and over again. 20 THE WITNESS: Would you like for me to 21 explain again? 22 MS. PONZOLI: I will tell you, Mr. Smith, 23 when he says this a couple more times, then I 24 will have to say, "No, Mr. Neely, you don't have 25 to answer that same question again." He has 840 1 explained this a couple of times to you. 2 MR. SMITH: I really thought I had 3 identified the sense in which he had previously 4 explained it. 5 And since I haven't, I'd like to ask him to 6 tell me -- 7 MS. PONZOLI: Why don't we go back in the 8 record and find where he explained it and just 9 have her read back the mitigation explanation 10 from before. 11 BY MR. SMITH: 12 Q. I would like for you to tell me -- 13 MR. SMITH: I'll ask him to just tell me. 14 BY MR. SMITH: 15 Q. Or tell me again, if you like -- 16 A. When I give talks to the general public and 17 I describe the establishment of Loxahatchee National 18 Wildlife Refuge -- 19 Q. Yes. 20 A. -- I sometimes, probably not always, have 21 used the word that Loxahatchee would, could be 22 considered to have been established, using a word in 23 today's language that wasn't available back then, as 24 mitigation for the massive federal Central and 25 Southern Florida flood control project. And although 841 1 that word was not used back then, the results are 2 essentially the same. 3 Q. Okay. So what's expressed here in this 4 exhibit does appear to be the characteristic usage of 5 the term. 6 A. But this is not for the general public. 7 Q. Oh, I'm asking you about the thought. 8 That does represent your characteristic 9 usage of the term mitigation. 10 A. This is a composite document put together 11 by my staff. I'm not the author of this document. 12 Q. Okay. Would you look at Exhibit G, please, 13 Bates Number 520, page 4 of the report previously 14 described as a December 1958 report on Fish and 15 Wildlife for inclusion in the Corps' general design 16 memorandum. 17 Page 4 of the document, Bates 520, is the 18 thought of mitigation as you intended expressed in 19 that paragraph 12? 20 A. (Witness reviewing the document) No, I 21 don't think so. 22 Q. That's a different thought entirely, isn't 23 it? 24 MS. PONZOLI: Asked and answered. 25 THE WITNESS: No, I don't think so. 842 1 BY MR. SMITH: 2 Q. It's neither the same thought nor a 3 different thought, is that the idea? 4 MS. PONZOLI: It's what it is. 5 BY MR. SMITH: 6 Q. Let's read it. "West of Conservation 7 Areas 1 and 2 --" 8 MS. PONZOLI: It is what it is, Mr. Smith. 9 You don't need to argue and shout about it. 10 BY MR. SMITH: 11 Q. "West of Conservation Areas 1 and 2, and 12 north of Conservation Area Number 3, lies an 13 extensive and rich agricultural area which has 14 developed on deep muck soils. The development of 15 these lands has made feasible construction of the 16 conservation areas." 17 Do you agree that in the historical order 18 of things it was the development of those lands the 19 EAA which made possible Conservation Area Number 1 20 and the Loxahatchee Refuge? 21 A. No, sir, I don't agree with that. 22 Q. Mr. Neely, your 1993 draft report, and I'll 23 refer to it if need be, see if you recognize this 24 thought, states on page 19, that the current water 25 schedule is too low low for a healthy Everglades 843 1 marsh. 2 A. On page 19? 3 Q. Yes. 4 A. And where are you reading from, sir? 5 Q. It's the last phrase of the last sentence 6 in the second numbered paragraph. 7 MS. PONZOLI: (Indicating). 8 THE WITNESS: Okay, sir. 9 BY MR. SMITH: 10 Q. "The current schedule maintains water 11 levels too low for a healthy Everglades marsh." 12 Is that your current opinion? 13 A. Yes, sir. 14 Q. And in your deposition previously, and I 15 believe Ms. Ponzoli has a copy of it, I don't, but I 16 copied it down from another copy yesterday, you 17 stated at page 12 -- if Ms. Ponzoli could help you. 18 A. I have my own -- 19 Q. Okay. 20 A. -- copy here. 21 MS. PONZOLI: Burkett, I've got mine 22 easily. 23 THE WITNESS: I've got mine easily, too. 24 BY MR. SMITH: 25 Q. It's page 14. 844 1 MS. PONZOLI: In Volume 1? 2 MR. SMITH: Yes, I believe so. 3 BY MR. SMITH: 4 Q. I'm quoting, "More water is pumped into the 5 refuge than is actually needed. It's passed through 6 the refuge on its way to other areas." 7 Do you find that where I -- 8 MS. PONZOLI: I believe that's a single 9 issue out of a long series of questions. 10 MR. SMITH: Yes. 11 MS. PONZOLI: I will point that out. 12 MR. SMITH: Yes. 13 THE WITNESS: Where are you? 14 MS. PONZOLI: He's picking up right here 15 (indicating). 16 THE WITNESS: Okay. Let me back up one 17 more. Page 12? 18 MS. PONZOLI: No. He's, he's at 14. 19 THE WITNESS: Oh, okay. 20 MS. PONZOLI: But it's in a series of 21 questions. 22 THE WITNESS: Let me see what the question 23 was and then see where the answer is. 24 MS. PONZOLI: See what his question is, 25 too. 845 1 I think this was the, I think page 12 had 2 the original question. 3 THE WITNESS: (Witness reviewing the 4 transcript.) 5 MS. PONZOLI: Do you have your copy, 6 Mr. Smith? 7 MR. SMITH: I don't have a copy of that, 8 but -- 9 MS. PONZOLI: I want to point out so the 10 record's fair, on page 12 I believe the original 11 question was from Mr. Earl, "In which of those 12 areas do you have expert opinions at the present 13 time?" and the answer was, "Well, what is your 14 definition of an expert opinion on water quality 15 and quantity impact? I'm not a --" it skips a 16 little. "I don't -- I'm familiar with it. I'm -- 17 I'm not a technical person. I'm a policy 18 person. I know it from a policy standpoint." 19 Then it guess on and on and on until we come up 20 to your 14 where you say whatever it is you're 21 going to ask him. 22 THE WITNESS: I assume that that top line 23 is a question. 24 MS. PONZOLI: I think so. 25 Let's hear what Mr. Smith's question is. 846 1 THE WITNESS: All right. 2 BY MR. SMITH: 3 Q. Do you find the statement, "More water is 4 pumped into the refuge than is actually needed. It's 5 passed through the refuge on its way to other areas"? 6 A. Than is needed to maintain a healthy 7 Everglades habitat, yes. More water is passed 8 through. 9 Q. I'm just asking you to reconcile, I'm sure 10 it can be done, reconcile that thought with the 11 thought we just covered that the current schedule 12 maintains water levels too low for a healthy 13 Everglades marsh. 14 A. The schedule, sir, and the amount of water 15 that's pumped into the refuge are two different 16 items. 17 Q. I see. 18 So the amount of water is one thing and the 19 schedule, that is to say, the time at which it is 20 pumped in and pumped out, is another. 21 A. No, sir, I didn't say that. 22 I said that the schedule and the amount of 23 water pumped into the refuge are two different 24 things. 25 Q. Is the schedule the elevation of water? 847 1 A. The schedule is what is set by the Corps of 2 Engineers in concurrence with Fish and Wildlife and 3 South Florida Water Management District to determine 4 at what stage the water will be at a certain, at a 5 given time of year, what the target stage of the 6 water levels will be at a given time of the year. 7 Q. And how is that different from the amount 8 of water that's pumped into the refuge? 9 A. The difference is that when the S-5A pump 10 starts up, the S-10 gates could be opened and water 11 could be discharged at the same time water's being 12 pumped in and through the refuge. 13 Q. So you'd have more water being pumped than 14 is actually necessary but it wouldn't affect the 15 stage, is that the idea? 16 A. It may temporarily affect the stage until 17 the District puts it back to where they want it. 18 Q. Are you able to influence the District when 19 they pump? 20 A. As to when they pump? No, sir, I don't 21 influence them as to when they pump. 22 Q. You have input on fixing the stage or 23 schedule from time to time, I gather. 24 A. Yes, sir. 25 MS. PONZOLI: No less than the farmers, 848 1 probably less. 2 THE WITNESS: It goes through a public 3 hearing. 4 BY MR. SMITH: 5 Q. So it's the factor, as perhaps you 6 explained to me yesterday, that the S-10 structures 7 pump water out when, as and if the schedule or the 8 Corps of Engineers call for it. 9 A. The S-10 structures allow water to be 10 discharged. They do not pump. 11 Q. I see. Okay. 12 A. And that is on a basis -- 13 Q. With that qualification, with that 14 qualification, that accounts for the release from 15 Loxahatchee of water that is received from either the 16 S-5A or the S-7 which -- 17 A. No, sir. No, sir. S-6 -- 18 Q. S-6. 19 -- which is in excess of what it actually 20 needs. 21 A. As to what the stage actually needs. 22 MS. PONZOLI: The water levels are 23 exceedingly complicated, Mr. Smith. They are 24 not amenable to simple answers. He's not being 25 uncooperative. 849 1 MR. SMITH: I'm not suggesting that he is. 2 I'm just suggesting I don't understand it yet. 3 MS. PONZOLI: And I'm suggesting to you 4 it's a very complicated process. 5 MR. SMITH: Okay. 6 BY MR. SMITH: 7 Q. Am I correct in understanding this that the 8 original staging as set by the Corps of Engineers in 9 consultation with whomever they consulted with was to 10 have a maximum level of 17 feet mean sea level in the 11 Water Conservation Area Number 1? 12 A. I don't remember if that was the initial 13 stage or not. I'd have to look back. There's been 14 three, three or four iterations of stage changes that 15 Mr. Earl referred to yesterday, and I don't remember 16 what the first one, what the parameters of the first 17 one were. 18 Q. All right. Let's refer to Exhibit G. 19 A. Yes, sir. That's where I was going. 20 Q. Page 10. This is the 1958 report forwarded 21 under Mr. Gresh's letter which states in paragraph 30 22 that, "The original plan for a stable pool at 23 elevation 17.0 feet in Conservation Area 1 would have 24 resulted in water levels fluctuating between 15 and 25 17 feet annually." 850 1 Does that refresh your recollection as to 2 what the original plan was? 3 A. I'm not sure how he derives that it would 4 fluctuate between 15 and 17 feet. It says with a 5 stable pool elevation of 17 feet which leads me to 6 believe that under heavy rainfall events it could 7 have gone above 17 feet. And I don't know where -- 8 how he makes the conclusion that it would have 9 resulted in levels fluctuating between 15 and 17. 10 Q. At any rate, it doesn't -- 11 A. 17 feet appears to be what was proposed in 12 the original plan. 13 Q. And he's making an observation at this time 14 about an apparent Corps proposal to regulate the same 15 area, Conservation Area Number 1, between 12 and a 16 half and 15 feet, this being 1958. 17 A. I'm sorry, sir. I didn't follow you on 18 that. I was looking back at something else. What -- 19 Q. I simply call your attention to 20 paragraph 31 and trying to locate in a time frame 21 this proposal apparently by the Corps to reduce the 22 stage from 17 to 12 and a half to 15. 23 Are you -- 24 A. I see that. I've heard of that proposal 25 and I've read about that proposal. 851 1 Q. And this was an objection to that as having 2 significant deleterious effects upon the refuge, is 3 that -- 4 A. This is before any stages were ever put 5 into operation on the refuge, sir. This would have 6 been 1958 and the levees weren't complete and the 7 stages weren't set until 1960, late '59 or '60. 8 Q. Okay. 9 A. So this is... 10 Q. This was still in the planning stage. 11 A. Yes, sir. 12 Q. And was the stage, in fact, set at a range 13 between 14 and 17 feet? 14 A. Well, it was proposed in this letter -- 15 Q. Yes. 16 A. -- between 14 and 17. However, the minimum 17 stage of 14 at that time -- I don't know the 18 parameters or the exceptions to the minimum stage. I 19 would have to see the, the document that set, that 20 set it in order to know what parameters or what 21 exceptions to 14, 17 might have been. 22 Q. Well, can you verify that generally the 23 stage, subject to such exceptions as a closer 24 examination might reveal, was between 14 and 17? 25 A. Well, it says here this is a proposed 14 to 852 1 17. I would have to go somewhere and find out if 2 that's actually the stage that they set. 3 Q. I'm asking from your memory what was 4 instituted? 5 A. And that's what I say, I do not remember. 6 I'd have to look back over here and see. 7 Q. How many times has it been changed? 8 A. At least three. 9 Q. Were they significant changes? 10 A. Then there was an interim schedule. 11 They were different, different levels. 12 Q. Okay. 13 MS. PONZOLI: I think the documents we went 14 through yesterday reflected that. 15 MR. SMITH: Yes. I'm not going to repeat 16 all that. 17 BY MR. SMITH: 18 Q. Look at F, please, Composite Exhibit F. 19 A. Okay. 20 Q. And I guess this will be F-2. 21 A. Yes, sir. 22 Q. Let's orient ourselves to what this is. 23 Do you recognize that cover page as being a 24 tab that means anything to you, "Botany, Refuge 25 Vegetation/Misc."? 853 1 A. It looks like a file folder tab under 2 botany, refuge vegetation miscellaneous. 3 Q. Do you recognize the file folder tab as 4 characteristic of anything in the refuge office? 5 A. File folder tabs are file folder tabs. I 6 don't know whether this was from the refuge files or 7 from the Atlanta files. 8 Q. All right. By way of orientation let me 9 just ask you to assume since I can't find it here at 10 the moment that this is referred to in the document 11 marked F-1, the Givens report on water level 12 management as forwarded with Mr. Neely's (sic) 13 September 1956 letter to the Corps of Engineers 14 concerning the proposed change to the staging of 15 Conservation Area Number 1. This Exhibit A to Givens 16 make reference at page 7 to characteristic 17 vegetation -- 18 MS. PONZOLI: Are we back in F-2? 19 THE WITNESS: There's some confusion on -- 20 those pages are out of sequence there. 21 MR. SMITH: I'm in the Exhibit A -- 22 MS. PONZOLI: You don't mean A, Mr. Smith. 23 MR. SMITH: Well -- 24 THE WITNESS: I know what he means. 25 MS. PONZOLI: You mean Exhibit A to Givens? 854 1 MR. SMITH: Yes. I'm sorry. That is a 2 very confusing way to put it. 3 This is in our Exhibit F-2. 4 MS. PONZOLI: All right. 5 MR. SMITH: And I was just trying to orient 6 us to, that to the Givens matter. 7 BY MR. SMITH: 8 Q. What I want to get to, Mr. Neely, in F-2, 9 indeed, at page 7 and -- 10 A. One second, sir. Let me -- and you're 11 attaching this as an exhibit to Givens, "Exhibit A to 12 Givens by Ralph Andrews," you're attaching that to 13 Givens letter by reference there, that handwritten 14 note? 15 Q. Yes. 16 A. Okay. I'd like to see where it references 17 it in Givens' paper. 18 Q. All right. 19 Yes, it's on page 6. 20 A. Okay. 21 Q. I called it Exhibit A. I ought to call it 22 Appendix 1. That's what I should have called it. 23 That's what he called it. 24 Do you see where I'm referring? 25 A. I see where we're doing that. And there's 855 1 nowhere that this is identified, this document is 2 identified as, as Andrews' document, but I guess we 3 have to assume that it might be. 4 Q. It's got the title, hasn't it? 5 A. Same title. 6 Q. And the numbers on the -- 7 MS. PONZOLI: Mr. Smith, can you show me 8 how you're putting these together? I confess 9 that I'm lost. 10 MR. SMITH: Yes. 11 THE WITNESS: I think I know, but I can't 12 swear that -- 13 MS. PONZOLI: How are you putting them 14 together? Where do you find this document 15 attached to this document? That's all I'm 16 asking. 17 MR. SMITH: On page -- 18 MS. PONZOLI: "Vegetative Cover Types Of 19 Loxahatchee And Their Principal Components"? 20 MR. SMITH: Yes. I confused it by 21 referring to it as Exhibit A instead of 22 Appendix 1. 23 THE WITNESS: The only thing that's in 24 common is the title. 25 MS. PONZOLI: Okay. So that we're assuming 856 1 these two go together for purposes of your 2 questions. 3 MR. SMITH: Right. 4 MS. PONZOLI: Okay. 5 MS. PONZOLI: Neither confirming nor 6 denying, we shall proceed. 7 BY MR. SMITH: 8 Q. The statement is made in this document 9 entitled "Vegetative Cover Types Of Loxahatchee And 10 Their Principal Components," that, "Expanses of prime 11 sawgrass are scarce on Loxahatchee. A rather narrow 12 belt," paren -- 13 A. Where are we? 14 Q. On page 7 at the top of the page. 15 A. Okay. 16 Q. "A rather narrow belt (seldom more than one 17 half mile wide) borders at the Hillsboro Canal at the 18 south edge of the refuge. Even this stretch is 19 broken by patches of maidencane and whitegrass as 20 well as a few willow heads and runs of pickerel weed. 21 Elsewhere, prime sawgrass occurs in small patches 22 along the east edge of the refuge and as occasional 23 borders of sloughs and bayheads in the interior." 24 And my question to you, Mr. Neely, is that 25 an accurate description of the presence of sawgrass 857 1 in the Conservation Area Number 1 or the refuge in 2 1956? 3 A. I do not know. 4 Q. I believe you said yesterday that the, 5 correct me if I'm wrong, that the water lily is the 6 foundation of the Loxahatchee peat? 7 A. White water lily, yes. 8 Q. And is that thought expressed in this 9 Appendix 1 attributed by Givens to Ralph Andrews on 10 page, the first page of this document? 11 A. I don't know. I'd have to look at it. 12 Q. Look at it, please. And we're talking 13 about page 090 with respect to the aquatic sites - 14 sloughs, lakes and runs, that, "The white water lily 15 is the dominant species and blankets all areas of 16 permanent water except some of the deeper portions of 17 lakes and gator holes." 18 Is that an accurate statement? 19 A. I have no idea whether it was accurate or 20 not at that time. 21 Q. Well, is the accuracy of it suggested or 22 indicated by your knowledge of the constituency of 23 the peat in the area? 24 A. No. We're talking about the formation of 25 most of that peat many, many years before this 858 1 observation. 2 Q. But if that observation were made by 3 somebody capable of making an accurate observation in 4 1956, would it have been consistent with your 5 knowledge of the historic constituency of the peat in 6 this area? 7 A. I don't know, sir. I don't have any exact 8 knowledge of the observation made here. 9 I make that reference to the peat in the 10 description of the classifications of soils for the 11 area in which the peat is described. 12 Q. And the Loxahatchee peat is composed 13 principally of what species? 14 A. Water lily. 15 Q. And that's an aquatic plant. 16 A. Yes, sir. 17 Q. In contrast to the Everglades peat which is 18 composed principally of what? 19 A. Everglades peat? 20 Q. Yes. 21 A. Is composed principally of sawgrass. 22 Q. And which characteristic peat exists in 23 Loxahatchee? 24 A. Principally? Loxahatchee peat. There are 25 two other peat types found within Loxahatchee. 859 1 Q. Which are composed of what species 2 principally? 3 A. The Loxahatchee peat is composed of 4 sawgrass and I believe it's the -- 5 Q. You say the Loxahatchee peat is composed of 6 sawgrass? 7 A. That's the term. That's the soil type, 8 Loxahatchee peat. 9 Q. Composed of sawgrass? 10 A. Yes, sir. 11 MS. PONZOLI: You told him white water -- 12 THE WITNESS: No, Everglades. I'm sorry. 13 Everglades. 14 MS. PONZOLI: He's trying to help. 15 THE WITNESS: Yeah, I know. Well, if he'd 16 just say, "I think you're wrong, I'd know what 17 he means." 18 Everglades peat is primarily sawgrass. 19 Loxahatchee peat is primarily white water lily. 20 BY MR. SMITH: 21 Q. Yes. 22 A. And then there's one other, I can't recall 23 the name of it right off without looking it up. 24 Q. Has something to do with myrtle, doesn't 25 it? 860 1 A. It's from woody or other dense vegetation 2 types. 3 Q. Characteristic of what grows on the tree 4 islands? 5 A. That's correct. 6 Q. And where does Everglades peat occur in 7 Loxahatchee? 8 A. I would have to look at the soils map to 9 show, to say exactly where it is. 10 Q. Is there any significant incidence of it? 11 A. I don't know what you mean by significant. 12 I know that it's referred to in the soils of the 13 refuge -- 14 Q. But -- 15 A. -- in more than one spot in these 16 documents. 17 MS. PONZOLI: Mr. Smith, I would remind you 18 that you're going to have an opportunity to 19 depose the senior biologist for the refuge and 20 you're talking to a policy person who's a 21 manager. 22 MR. SMITH: Um-hum. 23 MS. PONZOLI: And he is a biologist in his 24 early training and certainly by his experience, 25 but he is not the technical person at the 861 1 refuge. 2 BY MR. SMITH: 3 Q. Exhibit 16, the 1993 report, at page 27 you 4 are referring to efforts to control, and I quote, 5 exotic and noxious pest species. 6 Is that -- and I believe it occurred also 7 in the 1992 report. 8 Is that a continuing necessity by somebody 9 in your position to ward off what you consider to be 10 exotic and noxious pest species? 11 A. Well, it says pest plants, and I am -- yes, 12 I make the decision as to whether that is a 13 management program or not -- 14 Q. Um-hum. 15 A. -- based on information that I receive from 16 my staff and from my biologists, from our cooperators 17 and based on the overall management objectives of the 18 refuge. 19 Q. You, of course, consider, I believe you 20 listed them yesterday, you consider cattail a noxious 21 pest species, do you not? 22 A. Yes, sir. 23 Q. And willow? 24 A. For the purposes of managing the refuge for 25 the, for wildlife habitat and preservation of 862 1 Everglades type habitat, yes. I consider it an 2 invader. 3 Q. Well, when we talk about a noxious pest 4 species or invader, we're talking about something 5 that's in the wrong place considering the purposes 6 for which the place is maintained. 7 MS. PONZOLI: I'll object to the form of 8 the question. I think he indicated yesterday 9 cattail was a natural plant in the Everglades. 10 BY MR. SMITH: 11 Q. Is that so? 12 A. Is what so? 13 Q. Is cattail a natural plant in the 14 Everglades? 15 A. Cattail is found throughout the Everglades 16 under certain circumstances, yes. 17 Q. Was it found there before the project? 18 A. I saw no reference in the vegetation maps 19 and analysis that were done except rarely it would 20 mention that some cattail was found, and I would be, 21 I would say that cattail's probably found there. 22 Q. Well, Davis shows a significant area of 23 cattail, doesn't he? 24 A. I don't know whether he does or not, sir. 25 Q. Well, let's look. 863 1 MS. PONZOLI: We're aware the agricultural 2 industry is quite fond of that cattail area. 3 THE WITNESS: I would point out to you two 4 things. Number one -- 5 BY MR. SMITH: 6 Q. Well, I'm just asking you first to 7 acknowledge that the Davis map -- 8 A. No, sir. 9 Q. -- does show a significant cattail area. 10 A. No, sir. 11 Q. It does not? 12 A. No, sir. 13 Q. Okay. What does it show? 14 A. For this classification here? You would 15 like to know what that classification shows or would 16 you like to know what this map shows? 17 Q. I'd like to know what that classification 18 shows. 19 A. Okay. The classification that is indicated 20 right here located between the Hillsboro and the 21 North New River Canal which is not a significant part 22 of the Everglades, it is a minor part of the 23 Everglades, the historic Everglades, and Davis has it 24 listed as sawgrass marshes, within parenthesis, 25 abundant ferns and cattails. And I would point out 864 1 that it's directly below the historic farming area. 2 Q. All right, sir. We got off onto cattail 3 when I asked you whether cattail occurred naturally 4 in sawgrass marshes before the project, and you said 5 rarely; is that correct? 6 A. No, sir, I didn't mention sawgrass marshes. 7 You asked about Everglades. 8 Q. Okay. 9 A. Yes, sir, cattail is, even today is found 10 in isolated instances where there is a nutrient 11 source in the interior of the refuge. And if you 12 wanted to translate that probably to historic times, 13 there were probably some plants that are found around 14 nutrient sources that aren't typically the 15 predominant plants of the Everglades. 16 Q. Okay. Do you characterize as a nuisance 17 species water hyacinth? 18 A. It's classified as an exotic. 19 Q. Exotic. 20 A. Yes, sir. 21 Q. In the same sense that melaleuca and -- 22 A. Oh, yes, sir. 23 Q. -- Brazilian pepper are exotics? 24 A. Yes. 25 Q. Water hyacinth is exotic. 865 1 A. Yes, sir. 2 Q. What about water lettuce? 3 A. I don't know the origin of water lettuce, 4 whether it's an exotic or not. I would have to look 5 up and see what the, the history of water lettuce is. 6 Q. But I believe you regard it as undesirable 7 in the refuge. 8 A. Water Management District along with the 9 Fish and Wildlife Service does. 10 Q. Well, so whether it's a noxious pest 11 species or an exotic, it's undesirable. 12 A. Yes, sir. And it's found only in the 13 canals with the nutrient rich water. 14 Q. And what about pennywort? 15 A. Pennywort is a plant that is listed here in 16 this particular section titled "Pest Control" of the 17 draft 1993 annual narrative. I don't know whether 18 it's an exotic or just considered a noxious plant or 19 whether it's a plant that is controlled in our 20 management impoundments. I think that's probably 21 what it is. 22 Q. Well, then there are three categories. 23 What about sagittaria arrowhead? Is that 24 considered -- 25 A. Is that listed? 866 1 Q. -- undesirable? 2 A. Is that listed? 3 Q. Well, I'm not -- 4 A. Are we away from this page now? 5 Q. Yes. I'm asking you generically. 6 A. Sagittaria? 7 Q. Do you consider that an undesirable plant? 8 A. No, sir. 9 Q. Do you consider that is indicative of 10 excessive nutrient levels? 11 A. I never made that comparison, sir. 12 Q. To your knowledge is any effort made to 13 control sagittaria in the refuge? 14 A. No effort that I know of. Some sagittaria 15 may be control- -- I know of no effort, no effort is 16 made to control sagittaria that I know of. 17 Q. Look at Exhibit H, please. 18 A. Okay, sir. 19 Q. Would you -- you spelled the name of 20 Stieglitz, but we didn't identify him. 21 Did you know Walter Stieglitz? 22 A. Not at the time this paper was written. 23 Q. Did you know him later? 24 A. Yes, sir, I knew him later. 25 Q. Was he with the refuge for a period of 867 1 time? 2 A. With Loxahatchee? 3 Q. Yes. 4 A. No, sir. 5 Q. Was he with -- 6 A. He was not on staff of Loxahatchee. 7 Q. Was he with the Service? 8 A. He was with the Fish and Wildlife Service. 9 Q. Well, on page 6 of this memorandum written 10 in 1962 he states, "Cattail is on the increase, and 11 further control measures may be necessitated in the 12 future." 13 A. Okay, sir. 14 Q. "It was noted along the west end of both 15 transects." 16 Do you take that to mean that he was 17 observing an increase of cattail in the areas where 18 indeed it occurs now? 19 A. I don't know the location, specific 20 location of his transects. And all I can read is 21 what Mr. Stieglitz wrote, that cattail is on the 22 increase and that it was noted along the west end of 23 the both transects. 24 However, when you look at the transect 25 data, there's no mention -- well, very, very small 868 1 mention of cattail on transect A as not occurring in 2 '59 and a very low number of incidence occurring in 3 '62. 4 Then if you look at transect B, unless I'm 5 overlooking it, it does not reference cattail at all. 6 Q. Now, sir, let's turn to Exhibit K. I want 7 to ask you some questions about the derivation in the 8 SWIM Plan and before that in the settlement agreement 9 of the discharge limit at Loxahatchee from the two 10 structures S-5A and S, what was it, 6? 11 A. Yes, sir, the, two of the major pumps into 12 the refuge. 13 Q. Exhibit K purports to be some handwritten 14 notes of conversations on May 21 and May 23rd, 1991 -- 15 MS. PONZOLI: Do you know whose notes these 16 are, Mr. Smith? 17 MR. SMITH: Yes, they are Mr. Paul 18 Whalen's. 19 MS. PONZOLI: Thank you for sharing that 20 with us. 21 BY MR. SMITH: 22 Q. -- in which you were not shown as present 23 but Mr. Maffei was. 24 Now, were you present in the courtroom on 25 the day the Governor surrendered his sword? 869 1 A. Yes. 2 Q. And these conversations ensued concerning 3 the conditions of the settlement, did they not? 4 A. In the courtroom that day? 5 Q. No, no, in the days after that, that day 6 and the days after that. 7 MS. PONZOLI: Is your question were there 8 settlement talks? 9 MR. SMITH: Yes. 10 THE WITNESS: Yes, sir. 11 BY MR. SMITH: 12 Q. Was Mr. Maffei dispatched by you to be your 13 representative there in those talks? 14 A. At the settlement talks? 15 Q. Yes, sir. 16 A. I was at the settlement talks along with 17 Dr. Maffei. 18 Q. Okay. 19 Now, you know more about it than I do, 20 obviously. 21 A. But I was not present at whatever this is 22 here. I have no idea what this is. 23 Q. Well, have you read it? 24 A. No, sir. I've never seen this document 25 until last night, and I looked at it and I did not 870 1 read it. I only recognized it as K, but I did not 2 read it. 3 Q. Okay. 4 A. It didn't make sense and I didn't know what 5 it was or where it came from. 6 Q. Okay. 7 A. What -- well, you said Paul Whalen. These 8 are Paul Whalen's notes, but you didn't identify the 9 meeting, the type of meeting or anything. 10 Q. Well, I... 11 On the second unnumbered page of Exhibit K 12 purporting to describe an exchange of views on 13 May 21, 1991 with respect to item number 5, 14 "Loxahatchee P standards," Loxahatchee is represented 15 as stating -- and I take it that's either Mr. Maffei 16 or Mr. Goodlowe. 17 A. It would be Ms. Goodlowe. 18 Q. Ms. Goodlowe. 19 -- that the 16 interior marsh stations are 20 agreed upon but not as an OFW and need discharge 21 limit for inflows to WCA-1. 22 I'm not asking you to testify of your own 23 knowledge that this is a correct description of what 24 was said there, but I'm asking you, sir, had the 25 District as of May 21 agreed upon any discharge limit 871 1 to the Loxahatchee? 2 A. I don't know, sir. 3 Q. Well, you participated in the discussions, 4 did you not? 5 MS. PONZOLI: Mr. Smith, these are 6 discussions that took place three years ago? 7 MR. SMITH: Yes, yes. 8 MS. PONZOLI: Well, I'm sorry, I don't 9 think as many meetings as we've had, and we just 10 finished almost a year of negotiations with your 11 clients and the Sugar Cane League, that anyone 12 is going to be able to say on any particular day 13 or month of any of the last several years where 14 various parties stood unless there are court 15 records reflecting what those positions were, 16 unless someone's kept copious personal notes 17 which, quite honestly -- 18 BY MR. SMITH: 19 Q. Well, did you keep any notes of the 20 negotiations? 21 A. No, sir. 22 Q. You did not? 23 A. No, sir. 24 Q. Well, let me ask you then without respect 25 to any particular date was there a period of time in 872 1 which you and through you and through Mr. Maffei you 2 were insisting upon discharge limits when the 3 District was unwilling to agree to discharge limits 4 as contrasted with the interior marsh station 5 readings? 6 A. I can answer part of that question. I 7 can't recall the District's position. I can recall 8 our position, and that was that the waters being 9 discharged to the Loxahatchee National Wildlife 10 Refuge should meet state water quality standards 11 including outstanding Florida water standards. 12 Now, I don't recall whether the District 13 either agreed with that or disagreed with it or 14 failed to take a position. 15 Q. Okay. Does this refresh your memory, 16 reading from the same entry, again attributing to 17 Loxahatchee, "Need to have specific P limits for 18 discharges to WCA-1 --" 19 A. Where do you see that now? 20 Q. Still under item 5, it's about the fifth 21 item down on item 5, must be enforceable, specific P 22 limits for discharges. 23 MS. PONZOLI: Are you asking what the 24 United States' position was or the Refuge -- 25 MR. SMITH: I'm asking about this 873 1 witness' -- 2 MS. PONZOLI: Mr. Smith, don't bark back at 3 me. I sat here very -- 4 MR. SMITH: Don't bark at me. 5 MS. PONZOLI: Well, I sat here patiently 6 for three hours. It's one o'clock and we're not 7 stopping for lunch. I mean, you know. I'm 8 being very patient with you, Mr. Smith. 9 MR. SMITH: I appreciate your patience. 10 MS. PONZOLI: But you are going on and on 11 about somebody else's notes. 12 If you have straightforward questions about 13 what the refuge's position or needs were 14 regarding -- 15 MR. SMITH: I'm asking the man's 16 recollection. 17 MS. PONZOLI: Mr. Smith, let me finish. 18 If you have straightforward questions about 19 what the refuge's position is -- I'm listening 20 carefully to every question. I have in this 21 whole course not instructed someone not to 22 answer, so I do the best I can to help you get 23 your discovery done in a proper way. 24 But you've got Whalen's notes on what 25 Whalen says somebody else says. 874 1 Just ask Mr. Neely straightforward what the 2 refuge's needs were, and he will tell you. 3 BY MR. SMITH:. 4 Q. I'll ask the question this way. According 5 to these notes, the District asked, "What is the 6 objective of having a discharge limit?" and 7 Loxahatchee said that 16 stations do not cover the 8 entire marsh, secondly, that there was a lack of 9 confidence that the 16 station limits will actively 10 be pursued to be maintained by the District and, 11 thirdly, enforceability, those limits would give a 12 more definable enforcement point. 13 A. I can agree that based on what you said 14 that that's Paul Whalen's notes. 15 Q. Okay. But do you recall a stage of the 16 discussion in which -- 17 A. I wasn't at this discussion, sir. 18 Q. Do you recall a stage in the discussions 19 which you participated that you were insisting that 20 there would be no settlement unless there were 21 discharge limits? 22 MS. PONZOLI: Mr. Smith, you need to 23 understand how the United States works. A 24 single person cannot insist there will be no 25 settlement. We have enormous coordination that 875 1 goes on before any person speaks for the 2 United States. 3 MR. SMITH: I'll be glad to take your 4 deposition next, Ms. Ponzoli. 5 MS. PONZOLI: I'm sure, Mr. Smith, you've 6 tried. You listed me as a witness, and the 7 judge has said you won't do it. I guess you'll 8 have to talk to Mr. Menton before you can do it. 9 BY MR. SMITH:. 10 Q. What about it? 11 A. Are you asking me did I make that statement 12 in the negotiations? 13 Q. Yes, or did you tell Mr. Maffei to do so -- 14 Dr. Maffei? 15 A. No, sir, I did not say that and I did not 16 instruct Dr. Maffei to say that. 17 Q. Did you ever ask Dr. Maffei if he said 18 that? 19 A. We're talking in the negotiations now. 20 Q. Yes, sir. Yes, sir. 21 A. This I don't think is negotiations. 22 MS. PONZOLI: I don't know what it is, 23 Mr. Neely, but -- 24 THE WITNESS: This is not negotiation 25 notes. 876 1 BY MR. SMITH:. 2 Q. What is it? 3 A. Mr. Whalen was not in negotiation. 4 I have no idea what it is. You presented 5 it. 6 Q. Well, I'm asking you. I'm orienting you 7 toward a conversation by presenting you this, and I'm 8 asking you whether you ever took the position that 9 there would be no settlement unless there were 10 discharge limits to the Loxahatchee. 11 MS. PONZOLI: And I have explained to you, 12 Mr. Smith, that Mr. Neely cannot speak for the 13 United States in that way. It's not possible. 14 I'm telling you it's not -- 15 BY MR. SMITH: 16 Q. With that objection, would you answer the 17 question, please? 18 MS. PONZOLI: I think he answered it 19 already. 20 MR. SMITH: He hasn't answered it. 21 MS. PONZOLI: I don't think he can answer 22 it. 23 BY MR. SMITH: 24 Q. Did you say yes or no? 25 MS. PONZOLI: No, no, no. You do not give 877 1 yes or no to a totally improper question. 2 You may read back his series of questions 3 if you wish, Miss Court Reporter. It's 4 Mr. Smith's deposition. 5 Do you want her to read back the question 6 and see if he can answer it? 7 MR. SMITH: No. I want the answer. I want 8 the answer to -- 9 MS. PONZOLI: No, we will have a question. 10 THE WITNESS: I will have a question. 11 BY MR. SMITH: 12 Q. What's your question? What's your 13 question? 14 MS. PONZOLI: You want him to ask you 15 questions now? 16 BY MR. SMITH: 17 Q. Oh, you say you want me to ask you a 18 question. 19 MS. PONZOLI: Yes. 20 MR. SMITH: All right. 21 MS. PONZOLI: He can't answer without a 22 question. 23 BY MR. SMITH: 24 Q. Here it comes. 25 A. Okay. 878 1 Q. Here it comes. 2 Did you ever take the position in any 3 negotiations that you took part in that there would 4 be discharge limits into the Loxahatchee or else 5 there would be no settlement? 6 A. During the formal negotiations? No, I did 7 not. 8 Q. Did Dr. Maffei to your knowledge and with 9 your approval, did he ever take such a position? 10 A. No. 11 Q. Did you ever have any conversation with 12 Dr. Maffei about the position he should take with 13 respect to discharge limits? 14 A. Dr. Maffei and I discussed what was 15 necessary to protect the refuge. 16 Q. Yes. 17 A. And I'm sure that we discussed discharge 18 limits. 19 Q. And did you agree with Dr. Maffei, you and 20 he together or in consultation with others, that 21 discharge limits would be necessary to protect the 22 refuge? 23 A. Did I agree with Dr. Maffei that discharge 24 limits were necessary? 25 Q. Yes. 879 1 A. I'm not sure that it was put in that manner 2 of whether I had to agree or disagree with 3 Dr. Maffei. 4 Q. Okay. 5 A. I think Dr. Maffei furnished me information 6 on what was necessary water quality standards to meet 7 the needs of the refuge. 8 Q. Let me refer you to this statement 9 attributed to Loxahatchee at page 378 on May 21, 10 1991, "Need enforceable discharge standards at 11 structures that will keep 16 stations in compliance 12 or no agreement. If you need an apology because we 13 are changing our position on Lox after twelve 14 meetings, fine, I apologize, but my direction is, 15 because of events over the past few days, we need 16 discharge standards at the structures to Lox: S-5A, 17 S-6 and Acme." 18 My question to you, sir, is does that 19 refresh your recollection of any conversation with 20 Dr. Maffei of that tenor or to that effect? 21 A. No, sir. 22 MS. PONZOLI: It's been asked and answered, 23 Mr. Smith. 24 THE WITNESS: I said no, sir. 880 1 BY MR. SMITH: 2 Q. Okay. Whether before or after the event of 3 this or any discussion on May 21. 4 MS. PONZOLI: Asked and answered. 5 BY MR. SMITH: 6 Q. Again the answer is no? 7 A. Yes, sir. 8 Q. Have you participated in the discussions 9 with Environmental Protection Agency concerning the 10 NPDES permit now in process? 11 A. Have I participated in discussions with 12 them? 13 Q. Yes. 14 A. I've discussed some of the, some of the 15 requirements and some of the activity going on around 16 the NPDES permit, but... 17 Q. You've discussed that with some -- 18 A. With some of the EPA people, yes. I was 19 relaying some messages from the Water Management 20 District over the telephone to the EPA people who 21 were standing there. 22 Q. Have the EPA people ever asked you what 23 conditions you thought were appropriate or desirable 24 for that permit? 25 A. No, sir. 881 1 Q. Have you ever offered any opinion as to 2 that? 3 A. No, sir. 4 Q. Are you conscious of having any input 5 whatsoever in the specification of the conditions of 6 that permit as it now exists? 7 A. No, sir. I think that's an EPA document, 8 not a Fish and Wildlife Service document. 9 MS. PONZOLI: I'm taking your questions, 10 Mr. Smith, to be those that existed outside the 11 mediation efforts in Washington where your 12 client was present. 13 MR. SMITH: Our client was not present. 14 You got somebody else in mind. 15 MS. PONZOLI: No, no, no, Mr. Smith. You 16 were present at meetings with EPA. I recall 17 representatives of the Cooperative -- 18 MR. SMITH: Please now, please, please. 19 MS. PONZOLI: -- being in the room, 20 Mr. Smith. 21 MR. SMITH: Please. 22 MS. PONZOLI: Is it the Cooperative's 23 position it did not participate? 24 You've certainly represented to the hearing 25 officer that you tried very hard to reach 882 1 settlement. I've watched that go on time after 2 time. 3 In any event, I'm allowing him to answer 4 these questions assuming that these are not 5 regarding discussions, and I don't think they 6 would even if they were regarding those 7 discussions where you were present in the room 8 in mediation talks, and those are not presently 9 part of these, these discovery efforts. 10 BY MR. SMITH: 11 Q. I'm speaking about the initiation by EPA of 12 a request or demand for an application for an NPDES 13 permit in December 1993 and continuing to to date. 14 MS. PONZOLI: Well, he's answered you. 15 MR. SMITH: I think he has. 16 MS. PONZOLI: But I would like to know, 17 Mr. Smith, is it your position that the 18 Cooperative did not participate in mediation? 19 MR. SMITH: My deposition isn't being taken 20 either. 21 MS. PONZOLI: Well, we're both on the 22 record here, so as officers of the court we make 23 representations that are important. 24 MR. SMITH: I'll make them to the court, 25 sure will. 883 1 MS. PONZOLI: I'd like to hear them because 2 I think some very extraordinary things are being 3 said and intimated here that I am shocked. 4 MR. SMITH: You have a wonderful facility, 5 Ms. Ponzoli, for making speeches on the record. 6 MS. PONZOLI: No greater than yours, 7 Mr. Smith. 8 MR. SMITH: You know, you really don't have 9 to posture like that. 10 MS. PONZOLI: Are we going to take a lunch 11 break, Mr. Smith? It's 1:15. 12 MR. SMITH: I think we're going to quit in 13 just a minute. 14 MS. PONZOLI: Oh, you're going to finish? 15 Good. 16 I would like, Mr. Smith, to confirm before 17 we all leave that we have -- and we don't have 18 to do this on the record, that's fine with me, 19 but that the exhibits that you enter are what 20 were copied for me so when I walk away tonight, 21 and you don't have to stay, I want to make sure 22 mine were copied right since they are all out of 23 order and they are funny. 24 MR. SMITH: I didn't copy them. I turned 25 them over to the witness last night and he saw 884 1 to the copying. 2 As far as I know, everything you've got is 3 exactly what we have put in the record. 4 MS. PONZOLI: That's fine. 5 THE WITNESS: No, sir, I disagree with 6 that. 7 MR. SMITH: Yeah. 8 THE WITNESS: The Davis map was not copied 9 nor was the House Document copied at your 10 request. The House Document was not copied at 11 your request. 12 MS. PONZOLI: But it will be attached to 13 the record? 14 THE WITNESS: But it is a part of the 15 record. 16 MR. SMITH: I don't propose to put a copy 17 of the House Document part of the record. 18 THE WITNESS: Oh, well, that was in what I 19 submitted to be copied. 20 So we have a conflict between what -- 21 MS. PONZOLI: I don't know what to say. 22 MR. SMITH: Do you want that copied? 23 What's the big deal? 24 MS. PONZOLI: Well, the only thing I want 25 to know is, I guess what I want to know, 885 1 Mr. Smith, is your House 643, I have only seen 2 Xerox copies of it in the past. You seem to 3 have an official copy that has maps and 4 attachments to it. 5 If I could just look at it -- 6 MR. SMITH: Certainly. 7 MS. PONZOLI: -- and -- 8 MR. SMITH: Have a look. 9 THE WITNESS: And you implied that I'm the 10 one that had it copied. Yes, I did. But I 11 wanted to make a very distinct difference that I 12 didn't copy, I didn't have all of it copied. 13 MR. SMITH: You didn't have that fragile -- 14 THE WITNESS: Right. 15 THE COURT REPORTER: The "fragile"? 16 THE WITNESS: I think he means that fragile 17 document, to try to take it apart and have it 18 copied. That was his request to me. 19 MR. SMITH: When did I request that? 20 THE WITNESS: This morning. 21 MR. SMITH: And you'd already done the 22 copying, hadn't you? 23 THE WITNESS: No, sir. I'd already started 24 the copying, and I told her not to copy it. 25 MR. SMITH: Before I said a word to you. 886 1 THE WITNESS: Because it was a fragile. 2 MR. SMITH: Okay. 3 MS. PONZOLI: All I'm asking, Mr. Smith -- 4 I'm really not trying to make a fight out of 5 this. All I'm asking -- 6 MR. SMITH: I think you're making a pretty 7 good fight out of it. 8 MS. PONZOLI: Well, I'm going to do what I 9 have to do to protect my client because I'm 10 going to tell you something. I care as much or 11 more about protecting my client's rights than 12 you do about yours. So I'm going to make sure 13 that this record is accurate and complete so 14 that I can try to do the right job for my 15 client. It's a professional duty that I owe it. 16 All I'm trying to do is make sure that the 17 exhibits that have been put into this record in 18 a highly unusual manner match the ones that I'm 19 walking away with today. And I realize I'll get 20 a copy of those. But since we have talked about 21 these, thinking we were talking about the same 22 thing, I'm only asking that we confirm -- 23 MR. SMITH: What do you want me to confirm 24 to you, Ms. Ponzoli? 25 MS. PONZOLI: Before all of us leave this 887 1 building, I want to confirm that my A is the 2 same as your A, B through K or whatever. 3 I can order my own copy of House 4 Document 643 with the fragile attachments. 5 That's not a problem for me. I don't mind doing 6 that. It's expensive to have it copied. But I 7 want to make sure the rest of it's the same. 8 Before you leave the building if we have a 9 fuss about it, I want you here so we can resolve 10 it. It won't take 10, 15 minutes probably. 11 MR. SMITH: I have no other questions. 12 MS. PONZOLI: All right. If we may then, 13 if we may do what I have asked and confirm that 14 those documents that Mr. -- are you offering 15 them now into the record, Mr. Smith? 16 MR. SMITH: They've previously been 17 offered. We've done that. 18 MS. PONZOLI: No, we did not do it. 19 MR. SMITH: Ms. Ponzoli, what do you want 20 me to say, "I offer them into the record"? I'll 21 offer them into the record. 22 MS. PONZOLI: All right. Then I would like 23 to confirm that what he has offered into the 24 record is in fact what we think we've been 25 talking about all day long. 888 1 MR. SMITH: Fine. Please do. 2 MS. PONZOLI: May we go off the record? 3 Then we'll confirm that that's accurate. 4 (Discussion held off the record.) 5 6 (Witness excused.) 7 8 (Thereupon, at 1:21 p.m., February 23, 1994 9 the deposition was concluded.) 10 11 889 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 7/30/97 890 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 743 to 888, 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: 891 1 2 C E R T I F I C A T E 3 - - - 4 5 The State of Florida, ) 6 County of Palm Beach. ) 7 8 9 I hereby certify that I have read the 10 foregoing deposition by me given, and that the 11 statements contained therein are true and correct to 12 the best of my knowledge and belief. 13 14 Dated this ____ day of______________ 1994. 15 16 17 18 19 _________________________ 20 Burkett S. Neely, Jr. 21 22 23 24 25