1
1 Division of Administrative Hearings
2 Department of Administration, State of Florida
3 SUGAR CANE GROWERS COOPERATIVE)
OF FLORIDA; ROTH FARMS, INC.; )
4 and WEDGEWORTH FARMS, INC., )
Petitioners, )
5 V ) DOAH
SOUTH FLORIDA WATER MANAGEMENT) Case 92-3038
6 DISTRICT, an agency of the )
State of Florida, et al., )
7 _____________Respondents._____)
) VOLUME I
8 FLORIDA SUGAR CANE LEAGUE, )
INC.; UNITED STATES SUGAR )
9 CORPORATION; and NEW HOPE )
SOUTH, INC., )
10 Petitioners, )
V ) DOAH
11 SOUTH FLORIDA WATER MANAGEMENT) Case 92-3039
DISTRICT, an agency of the )
12 State of Florida, et al., )
_____________Respondents._____)
13 )
FLORIDA FRUIT AND VEGETABLE )
14 ASSOCIATION; LEWIS POPE FARMS;)
W.E. SCHLECHTER & SONS, INC., )
15 and HUNDLEY FARMS, INC., )
Petitioners, )
16 V ) DOAH
SOUTH FLORIDA WATER MANAGEMENT) Case 92-3040
17 DISTRICT, an agency of the )
State of Florida, et al., )
18 _____________Respondents._____)
19
Deposition of Burkett Neely
20
Taken before Robin L. Merker, Court
21 Reporter and Notary Public in and for the State of
Florida at large, pursuant to notice of taking
22 deposition filed by the Petitioners in the above cause.
23 - - -
Monday, March 29, 1993
24 319 Clematis Street
West Palm Beach, Florida 33401
25 9:50 - 12:40 p.m.
2
1 APPEARANCES:
2 On behalf of the Petitioners Florida Sugar
Cane League, Inc., United States Sugar Corp,
3 and New Hope, Inc.:
4 Peeples, Earl & Blank, P.A.
One Biscayne Tower, Suite 3636
5 2 South Biscayne Boulevard
Miami, Florida 33131
6 BY: WILLIAM L. EARL ESQUIRE
7 On behalf of the Respondent SFWMD:
8 Simmons & Solomon
10020 South Federal Highway
9 Port St. Lucie, Florida 34952
BY: DIANNE MISIAK, ESQUIRE
10
On behalf of the Intervenor, United States of
11 America:
12 SUZAN HILL PONZOLI, ESQUIRE
Assistant United States Attorney
13 155 South Miami Avenue
Suite 600
14 Miami, Florida 33130-1693
15 On behalf of the Petitioner, Sugar Cane Growers:
16 Hopping, Boyd, Green & Sams
123 South Calhoun Street
17 P.O. Box 6526
Tallahassee, Florida 32314
18 BY: WILLIAM GREEN, ESQUIRE
19 ALSO PRESENT:
20 JOSEPH RICHARDS
21
22
23
24
25
3
1 - - -
2 I N D E X
3 - - -
4 WITNESS: DIRECT CROSS REDIRECT RECROSS
5 BURKETT NEELY.
6 BY MR. EARL: 4
7
- - -
8
E X H I B I T S
9
- - -
10 Neely Exb. No. 1 130
Arthur R. Marshall Loxahatchee N.W.R. 7-2-91
11 mission statement
12 Neely Exb. No. 2 180
8-16-91 Description sketch of WCA-1
13
Neely Exb. No. 3 182
14 8-16-91 Description sketch of WCA-1
15 Neely Exb. No. 4 183
9-85 SFWMD map
16
Neely Exb. No. 5 233
17 1993 report on mercury concentrations in fish
18 Neely Exb. No. 6 262
11-90 Refuge synthesis report
19
Neely Exb. No. 7 395
20 11-5-92 Memorandum from FWS, Atlanta, GA to all
project leaders, FWS, Region 4
21
Neely Exb. No. 8 400
22 Annual Narrative Report, 1991
23 Neely Exb. No. 9 430
Annual Narrative Report, 1983
24
25
4
1 P R O C E E D I N G S
2
3 - - -
4 Thereupon,
5 BURKETT NEELY,
6 being by the undersigned Notary Public first duly
7 sworn, was examined and testified as follows:
8 THE WITNESS: I do.
9 DIRECT (Burkett Neely)
10 BY MR. EARL:
11 Q. Would you state your full name, please?
12 A. Burkett S. Neely, Jr.
13 Q. By whom are you presently employed, Mr.
14 Neely?
15 A. United States Fish and Wildlife Service.
16 Q. What address, sir?
17 A. My mailing address?
18 Q. Your residence.
19 A. My residence is 940 Citrus Place, West
20 Palm Beach, 33414.
21 Q. Okay.
22 What is your present position with the
23 U.S. Fish and Wildlife?
24 A. I'm refuge manager.
25 Q. For the record, of what, Mr. Neely?
5
1 A. Of Loxahatchee National Wildlife Refuge.
2 Q. What are your responsibilities as refuge
3 manager?
4 A. As refuge manager, I'm in charge of
5 day-to-day activities, overall management of the
6 Loxahatchee National Wildlife Refuge and Hobe Sound
7 National Wildlife Refuge.
8 MR. EARL: Do you have something to say,
9 Ms. Ponzoli?
10 MS. PONZOLI: I'm just sitting here, Mr.
11 Earl. What's the problem?
12 MR. EARL: You were positioning yourself
13 to make a statement.
14 BY MR. EARL:
15 Q. Do you supervise all employees at
16 Loxahatchee?
17 A. Yes.
18 Q. How many such employees are there?
19 A. It varies different times of the year.
20 There's anywhere between 20 and 25.
21 Q. How many full-time?
22 A. Four -- no, 20, 25. Full-time, today?
23 Q. Let's start with today, yes.
24 A. I don't know. I'd have to make a list. I
25 have vacant positions and everything. I don't -- I'd
6
1 have to count them.
2 Q. Let's go ahead and give them to me.
3 A. Okay.
4 Deputy Allan Flock.
5 Q. Could spell that, please?
6 A. A L L A N, F L O C K.
7 Q. Okay.
8 A. I have an administrative assistant named
9 Arleen Collins.
10 Q. Yes, sir.
11 A. My receptionist, named Helga Fraze.
12 Q. F R A Z?
13 A. E. F R A Z E.
14 Q. Okay.
15 A. And outdoor recreation planner, Serena
16 Rinker.
17 Assistant outdoor recreation planner, Lois
18 Chapman.
19 Q. Yes, sir.
20 A. Let me think just one minute. I have
21 maintenance leader, Bob Horsley.
22 Q. H O R S L E?
23 A. H O R S L E Y.
24 I have a biologist, Dr. Mark Maffei. A
25 biologist named Sue Jewel, and a biologist named Fred
7
1 Broerman.
2 Q. B O R --
3 A. No. It's B -- it's B R O E R M A N. I
4 think that's the correct spelling.
5 Q. Okay, sir.
6 A. And I have maintenance workers, Steve
7 Matzkow.
8 Q. Would you spell his last name?
9 A. M A T Z K O W.
10 Maintenance worker, Randall Grabo.
11 Maintenance worker automotive mechanic,
12 Roberto Calton. C A R L T O N.
13 A. Matzkow, Tom Van Duine. Van, capital D U
14 I N E.
15 (Thereupon, Ms. Misiak entered the room.)
16 THE WITNESS: And that's Hobe Sound.
17 BY MR. EARL:
18 Q. Wait, the others, do they have
19 responsibilities regarding Loxahatchee, the Hobe Sound
20 people?
21 A. No. They're responsible for Loxahatchee.
22 Q. Okay.
23 A. Or for Hobe Sound.
24 Q. Okay.
25 I don't need to know them.
8
1 A. Then I have seasonal employees.
2 Q. Any professional seasonal employees
3 professional type?
4 A. No.
5 Q. Okay, sir.
6 Any others?
7 A. Oh. I have a law enforcement officer
8 named Dwane Denton.
9 I believe that's all. I have some vacant
10 positions. Just have to kind of go over them in my
11 mind to remember which ones are there and which ones
12 aren't.
13 Q. Okay.
14 MR. EARL: Good morning.
15 MS. MISIAK: Hi.
16 MR. EARL: I don't believe I know you.
17 MS. MISIAK: My name is Diane Misiak with
18 Southern Water Management District.
19 MR. EARL: Oh.
20 MS. MISIAK: What time did you get
21 started?
22 MR. EARL: We -- five minutes ago.
23 MS. MISIAK: Yes. I was told it started
24 at ten.
25 MR. EARL: I apologize.
9
1 MS. MISIAK: That's okay. That's okay.
2 MR. EARL: We have covered -- so far we
3 have covered Mr. Neely's address and he's listed
4 the people working in the Refuge.
5 MS. MISIAK: Okay.
6 MR. EARL: And he's told me he's a refuge
7 manager. I'll be happy to give you the names.
8 I think that's it, isn't it?
9 MR. RICHARDS: Um-hum.
10 (Thereupon, a discussion was held off the
11 record.)
12 BY MR. EARL:
13 Q. Do you hold any other positions of
14 responsibility with the federal government other than
15 as refuge manager?
16 A. I'm a federal wildlife refuge law
17 enforcement officer.
18 Q. Okay.
19 Any other?
20 A. No.
21 Q. Have you ever held, in the last five
22 years, any other federal positions?
23 A. No.
24 Q. Does your job as refuge manager, Mr.
25 Neely, require you to be familiar with the history of
10
1 regulations and schedules in Loxahatchee?
2 A. Yes.
3 Q. Does it also require you to be familiar
4 with the history of studies on vegetative -- vegetation
5 patterns and habitats in the Refuge?
6 A. Familiar with, yes.
7 Q. Does it also require you to be familiar
8 with the history of any ecological problems the
9 Loxahatchee has faced?
10 A. Familiar with, yes.
11 Q. Okay.
12 Does it also require you to be familiar
13 with the status of any permits for facilities of
14 sources of pollution which the Loxahatchee may operate?
15 A. Yes.
16 Q. Okay.
17 Does it also require you to be familiar
18 with any special use permits or research permits?
19 A. Yes.
20 Q. Are you also, as refuge manager, familiar
21 with nuisance species in Loxahatchee?
22 A. By nuisance species, animals?
23 Q. Let's start with plants.
24 A. Plants. Yes.
25 Q. Okay.
11
1 Are there animals you're familiar with,
2 nuisance species?
3 A. There are some exotic species, if that's
4 what you're terming nuisance.
5 Q. What is your operating definition as
6 refuge manager of the term nuisance?
7 A. I -- I don't use the -- that term.
8 Q. Okay.
9 Are you familiar with areas in which there
10 may be water quality violations of Class III standards?
11 A. Yes.
12 Q. Okay.
13 And do your responsibilities as refuge
14 manager require you to be familiar with the mapping,
15 satellite image, aerial photography, and other
16 resources the Refuge has to delineate the habitat areas
17 and vegetation?
18 A. Familiar with, yes.
19 Q. All right, sir.
20 Are you aware that you've been listed as
21 an expert witness in the SWIM DER permit challenge
22 case?
23 A. Yes.
24 Q. What have you been told about the areas of
25 your testimony?
12
1 A. (No response.)
2 Q. What areas will you be testifying as an
3 expert in?
4 A. Wildlife management, management of
5 Everglades habitat, Loxahatchee National Wildlife
6 Refuge, water quality and quantity impact on the Refuge
7 and habitat trends.
8 Q. In which of those areas do you have expert
9 opinions at the present time?
10 A. Well, what is your definition of an expert
11 opinion on water quality and quantity impact?
12 I don't -- I'm familiar with it. I'm --
13 I'm not a technical person. I'm a policy person. I
14 know it from a policy standpoint.
15 The rest of the wildlife management I
16 consider myself an expert. Loxahatchee National
17 Wildlife Refuge, I consider myself an expert.
18 Q. Water quality and quantity impacts on the
19 Refuge, are you an expert in that area?
20 A. Well, I'm familiar with it.
21 Q. What opinions do you have in that area
22 that you'd be presenting at the hearing in this case?
23 A. I -- I don't know.
24 Q. You haven't been asked to form any
25 conclusion or opinions?
13
1 A. No, I haven't.
2 Q. You have none at the present time; is that
3 correct?
4 A. Oh, I have some opinions.
5 Q. Okay.
6 What are those as they relate to the
7 issues in this case?
8 A. To the issue of water quality?
9 Q. Your counsel has listed it as you're an
10 expert in water quality, quantity impact in the Refuge.
11 A. Water quality is -- is that what you would
12 like for me to express an opinion on?
13 Q. You can start with that. Yes, sir.
14 A. Okay.
15 On water quality, that my opinion is that
16 the water quality standards for Loxahatchee National
17 Wildlife Refuge, which is classified as an outstanding
18 Florida water, have been violated.
19 Q. Okay.
20 How about water, any other water quality
21 opinions?
22 A. Quality?
23 Q. Yes, sir.
24 A. No.
25 Q. Okay.
14
1 What about water quantity opinions?
2 A. Quantity impact is that more -- more water
3 is pumped into the Refuge than is actually needed.
4 It's passed through the Refuge on its way to other
5 areas.
6 Q. Do you have any other expert opinions
7 regarding water quantity impact on Loxahatchee?
8 A. No.
9 Q. How about habitat trends? What --
10 A. I have.
11 Q. -- opinions or conclusion have you formed
12 on --
13 A. That habitat trends within the Refuge have
14 changed over the years since the Refuge was
15 established.
16 Q. In what way, in your opinion?
17 A. In what way they've changed? Just gone
18 from one type of habitat to another type of habitat.
19 Q. Okay, sir.
20 In your opinion, what type of habitat have
21 they come from and gone to?
22 A. From pristine-type Everglades to, in some
23 cases, willow, and in the major case cattail. There is
24 some phragmites also.
25 Q. And what has been the cause of these
15
1 habitat trends, in your opinion?
2 A. In my opinion? Not cattails. It's water
3 quality. Probably water quality for the other two
4 also.
5 Q. Water quality?
6 A. Yes, sir.
7 Q. For the willow?
8 A. For the willow. Water quality for the
9 cattail, water quality for the willow and for the
10 phragmites.
11 Q. What specific water quality parameter has
12 caused a shift to willows, sir?
13 A. According to a study done by Mr.
14 Richardson from the University of Florida, willow
15 occurs when you have high nitrogen and high phosphorus.
16 Q. And that's also your opinion?
17 A. After reading the technical data, that's
18 my opinion.
19 Q. All right.
20 Is that Work Order 32, the final report,
21 what you're basing your study on?
22 A. That's some. That's where I drew that
23 conclusion from.
24 Q. Okay.
25 You rely on anything else for that
16
1 conclusion?
2 A. There's other data available. I can't
3 cite it specific for you, because there's other
4 technical data available that --
5 Q. Um-hum. Okay.
6 A. -- supports that.
7 Q. But as you sit here today, you're aware
8 of, you're not relying on any other specific data to
9 support that?
10 A. I don't, no.
11 Q. Have you got any other opinions regarding
12 habitat trends in Loxahatchee?
13 A. No.
14 Q. And is your answer the same for what has
15 caused the trend to cattails?
16 MS. MISIAK: Object to form.
17 BY MR. EARL:
18 Q. What has caused the trend to cattails
19 you've given the opinion about?
20 A. Based on technical data I've reviewed, I
21 would say that it was phosphorus.
22 Q. What data are you relying on for that,
23 sir?
24 A. Work Order 32 is one data. Data that has
25 been have developed, or been reviewed through TOC.
17
1 Q. Which data, sir?
2 A. I -- which data, I don't --
3 Q. I'm asking what you're relying on to form
4 your conclusion that nutrients are responsible for
5 cattail conversion in Loxahatchee. You've told me data
6 from Work Order 32, right?
7 A. Right.
8 Q. You said data that TOC has, correct.
9 A. I think it's TOC had reviewed and SAGE.
10 Q. Okay.
11 I mean what --
12 A. Report from -- excuse me.
13 Q. What specific data do they have that
14 you're aware of?
15 A. I can't -- I can't cite specific data.
16 There's been so much data that I can't remember all the
17 data that's cited.
18 Q. Okay.
19 As we sit here today, what data can you
20 remember that you rely on to form your opinion?
21 A. I can remember Work Order 32.
22 Q. That's John Richardson's study again?
23 A. Um-hum. There's also data that's been
24 done by the South Florida Water Management District.
25 Q. Which data is that, as you sit here?
18
1 A. The David Swift report is one. I can't
2 remember the technical -- what do you call them? The
3 tech pubs or several tech pubs that have been done by
4 the District.
5 Q. Which ones do you rely on David Swift
6 periphyton reports?
7 A. All of them.
8 Q. Which ones do you remember?
9 A. I remember David Swift's reports. There
10 has been some stuff in the SWIM Plan, some data in the
11 SWIM Plan.
12 Q. Which data that you can recall in forming
13 your opinion? Which did you rely on in the SWIM Plan?
14 A. In the SWIM Plan? All of it.
15 Q. You can't point out any specific --
16 A. Not unless I have it in front of -- I'd
17 have to see the SWIM Plan. The SWIM Plan is a pretty
18 big document.
19 Q. And any other data?
20 A. Not that I can recall.
21 Q. Okay.
22 And was -- would your answer be the same
23 as to what was the third area you saw habitat trends
24 in?
25 MS. PONZOLI: Object to the form. I don't
19
1 understand the question, Mr. Earl.
2 THE WITNESS: The third area --
3 BY MR. EARL:
4 Q. He identified cattails, willow, and there
5 was another area.
6 A. Phragmites.
7 Q. Could you spell that please?
8 A. P H R E M I T E S (sic). I think it's
9 referred to commonly as giant cane. I cannot cite
10 specific the technical data, but I do know that it
11 was -- responds to sodium.
12 Q. And in response to chlorides?
13 A. Sodium.
14 Q. Sodium?
15 A. I can't cite the specific data, because
16 this was data that was based on my knowledge of another
17 refuge back in the late '60s.
18 Q. What other refuge is that?
19 A. Mattamuskeet National, or actually
20 Swanquarter National Wildlife Refuge.
21 Q. Where is that?
22 A. In eastern North Carolina. We had a
23 phragmites problem.
24 Q. Do you have any of that in Loxahatchee at
25 the present time?
20
1 A. Um-hum.
2 Q. Okay.
3 A. Yes, we do.
4 Q. In what area?
5 A. Around the fringe.
6 Q. Fringe of what?
7 A. Around the fringe of the L-40 and L-7 and
8 L-39 canal in spots.
9 Q. Have you any approximation of acreage that
10 would be in what you call the giant cane?
11 A. No, I wouldn't.
12 Q. Is it more than a hundred acres, it is
13 substantial?
14 A. I wouldn't have an idea of acreage. It's
15 found in a thin strip around the edge adjacent to the
16 canals.
17 Q. In your opinion, that's caused by what in
18 the water?
19 A. By a water quality problem.
20 Q. And what is that problem?
21 A. I would say that, based on my opinion and
22 best I can recall from data past, would be sodium.
23 Q. And you say data past, that's from your
24 experience in the -- the other wildlife refuge in North
25 Carolina?
21
1 A. Yes.
2 Q. What was the source of the sodium at the
3 other wildlife refuge?
4 A. Saltwater from a bay.
5 Q. Whereabouts in North Carolina?
6 A. In Pimlico Sound.
7 Q. Okay.
8 Any other habitat trends other than what
9 you've mentioned?
10 A. Invasion by exotic plant species.
11 Q. Where is the invasion, and what plant
12 species are you referring to, sir?
13 A. Well, one -- one plant species would be
14 water hyacinth. Another plant species would be
15 Melaleuca. Another plant species would be Australian
16 pine.
17 Q. Any others?
18 A. Not that I can recall offhand.
19 Q. Okay.
20 And where is water hyacinth invasion?
21 A. It's found in the canals and in the area
22 known as the flats on the south end.
23 Q. When you say the flats, what area? Can
24 you tell me a little more specifically what you're
25 referring to?
22
1 A. There's an area that's designated the
2 flats. It's an open water area along the south end of
3 the Refuge.
4 Q. Is that the pool area north of the 10
5 structures?
6 A. Yes.
7 Q. How large is that area, as you understand
8 it to be?
9 A. I don't know the acreage exactly. I
10 believe I could guess, it's probably a thousand, two
11 thousand acres.
12 Q. Any other areas of hyacinth -- you talking
13 about the exterior and interior canals?
14 A. There are no interior canals in the
15 Loxahatchee National Wildlife Refuge.
16 Q. Are you just talking about the exterior
17 canals?
18 A. That's -- the only canals on Loxahatchee
19 on the --
20 Q. No borrow --
21 A. Inside the L-40.
22 Q. There's no borrow canal at any place
23 inside the L-40?
24 A. Yeah. The L-40 canal, the L-7 canal and
25 L-39 canal are the canals that I'm referring to. They
23
1 are borrow canals.
2 Q. And there's no other interior canals
3 inside?
4 A. No.
5 Q. Okay.
6 Is the hyacinth infestation more intense
7 in any one area than others?
8 A. I don't think that it is. It's equal
9 throughout.
10 Q. Uniform?
11 A. (No response.)
12 Q. How about the Melaleuca, where is that
13 based, sir?
14 A. It's scattered all over the Refuge. It's
15 not in any one particular spot. There's single trees
16 scattered throughout the Refuge and clumps of trees
17 scattered throughout the Refuge.
18 Q. Any areas of concentration at all?
19 A. By -- define concentration. I don't know
20 what you're asking.
21 Q. Where there's more than just scattered
22 infestation.
23 A. Probably on the eastern half.
24 Q. What is the approximate acreage of
25 Melaleuca infestation?
24
1 A. I do not recall what the acreage is --
2 Q. You've never done --
3 A. -- except it's in scattered clumps. There
4 have been some studies done, but I just don't recall
5 what that figure is, Mr. Earl.
6 Q. You've never done any briefing papers that
7 you recall?
8 A. Yes, we've done briefing papers. I could
9 look at the briefing paper and tell you what the
10 acreage is, but I don't recall it offhand.
11 Q. Do you remember the number 20,000 that you
12 used in the past?
13 A. I couldn't say that unless I saw the
14 briefing paper.
15 Q. Okay.
16 What's the cause of the Melaleuca
17 infestation, in your opinion?
18 A. Spread of seeds.
19 Q. Is that in any way related to nutrients
20 from the Everglades Agricultural Area?
21 A. No.
22 Q. Okay.
23 How about the water hyacinth? What's the
24 cause of the water hyacinth infestation?
25 A. In my opinion there -- this is not
25
1 based -- is not a technical opinion, but in my opinion
2 it's based on water quality.
3 Q. What water quality parameter is it based
4 on?
5 A. I have no idea what parameters, but I
6 would assume it was phosphorus.
7 Q. What is the basis of your opinion?
8 A. In that there's no water hyacinth found in
9 the center of the Refuge, the phosphorus levels, the
10 water quality is much better.
11 Q. Any studies you relying on for that
12 opinion or conclusion?
13 A. No.
14 Q. Any other scientific basis for that
15 opinion or conclusion?
16 A. I have no idea.
17 Q. It's your personal non-scientific opinion;
18 is that correct?
19 A. It's my personal non-scientific opinion.
20 Q. How about the Australian pine? Where are
21 they located?
22 A. There's only a few. They're scattered
23 very thin throughout the Refuge, probably less than 50
24 trees.
25 Q. Whereabouts, any area of concentration?
26
1 A. No area of concentration.
2 Q. And what are these related to, water
3 quality problems?
4 A. I don't think that they are.
5 Q. To what do you attribute that?
6 A. Just seed source.
7 Q. Okay.
8 You talked earlier about the cattails
9 resulting from water quality. Where -- where are the
10 cattails located, as you understand it, in Loxahatchee,
11 sir?
12 A. Well, there's cattails located along the
13 perimeter -- the perimeter of the canals, in a band
14 along the perimeter canals, and along the south edge
15 there. We were talking about the flats, there's a
16 pretty good infestation that goes along the north edge
17 of the flats and principally concentrate on the
18 southwest corner of the Refuge in a strip up along the
19 L-7 and L-39.
20 Q. And do you have any approximation of
21 acreage at present of cattails?
22 A. I haven't been advised of a recent -- any
23 recent figures, but at one point -- I mean, we were
24 talking 8,000-plus acres of monotype, and somewhere
25 another six to eight thousand acres of scattered
27
1 cattail. And there are some very isolated cattail
2 there in the interior of the Refuge, small isolated
3 clumps.
4 Q. To what do you attribute them?
5 A. To bird rookeries or alligators' holes
6 where there's high nutrients.
7 Q. And what acreage do they consist of, any
8 idea?
9 A. On the interior?
10 Q. Yeah.
11 A. On the interior, I have no idea. There's
12 some small isolated scattered clumps.
13 Q. When you say monotype, you mean
14 monoculture?
15 A. Monoculture.
16 Q. And you say you haven't been informed.
17 Who -- who at Loxahatchee knows more about this than
18 you? Who would inform you of this?
19 A. Dr. Maffei would run a satellite image, do
20 some calculations off an imagery or vegetative
21 classification or even -- maybe even the Water
22 Management District. They do that type of work also.
23 Q. But the last you've heard of is 8,000, six
24 to eight thousand?
25 A. Approximately, plus or minus.
28
1 Q. Okay.
2 In your job as refuge manager, are you
3 also familiar with the history of pesticide and
4 herbicide application in Loxahatchee?
5 A. Brief -- yes, to somewhat, not detailed,
6 but to somewhat.
7 Q. Is there anybody more knowledgeable than
8 you regarding that in the present staff?
9 A. No, not without -- not without going back
10 and doing extensive research.
11 Q. Any other opinions --
12 A. That was on pesticide application, right?
13 Q. Yes, sir.
14 A. Okay.
15 Yeah. On current pesticide application,
16 Dr. Maffei would be more familiar.
17 Q. Is he responsible for current pesticide --
18 A. Overall, yes.
19 Q. Who were your predecessors as refuge
20 manager, if you can name them?
21 A. Immediate predecessor was a person by the
22 name of Tom Martin, Thomas Martin.
23 Q. And you started in 1981; is that correct,
24 sir?
25 A. That's correct. March the 8th.
29
1 Q. And who was -- how long did Mr. Martin
2 serve generally, do you know?
3 A. I would have to look at the roster to see
4 how long he was there. I don't recall offhand.
5 Q. Who was his predecessor?
6 A. I don't know exactly who his predecessor
7 was without going and looking at the list.
8 Q. Is there a Mr. Thompson in there?
9 A. There is a Dick Thompson. I can name some
10 predecessors.
11 Q. Please do.
12 A. I don't know what order or years they
13 served. Dick Thompson, John Eadie -- and I just can't
14 remember them without looking at the list.
15 Q. Do you have a list of those?
16 A. At the office, I do, with the years they
17 served.
18 Q. Now, where is the willow infestation you
19 talked about earlier in terms of habitat trends?
20 A. You find willow infestation around the
21 perimeter of the Refuge up on the north end near the
22 S-5A pump station. Around the perimeter of the canal,
23 adjacent to the canal. There's some isolated clumps of
24 willow in the Refuge in the interior, but they're
25 isolated.
30
1 Q. Do you have knowledge as to the soil
2 types, the basic soil types in Loxahatchee?
3 A. That's basically peat soil, organic.
4 Q. What kind of peat?
5 A. White water lily is my understanding, the
6 basic peat soil in Loxahatchee.
7 Q. Are you referring to Loxahatchee peat?
8 A. Yes.
9 Q. Okay.
10 And that consists primarily of white water
11 lily?
12 A. That's my best understanding, it does.
13 Q. What other kinds of peat are there in
14 Loxahatchee?
15 A. On the Refuge?
16 Q. Yes, sir?
17 A. I don't -- I would imagine in some spots
18 there may be some sawgrass, but I don't know,
19 particularly out on the fringes.
20 Q. And you're referring to Everglades peat;
21 is that correct?
22 A. Yes.
23 Q. Okay.
24 And what is your understanding of what
25 Everglades peat primarily consists of, what species?
31
1 A. Sawgrass.
2 Q. And have you ever heard of gandy peat?
3 A. I've heard of it, but I don't know.
4 Q. You don't know whether there's gandy peat
5 in Loxahatchee Refuge?
6 A. I don't think that there is.
7 Q. What does that consist primarily of, do
8 you know?
9 A. Gandy?
10 Q. Yes.
11 A. I told you I didn't know.
12 Q. As we sit here, as refuge manager, you're
13 not aware of any other kind of peat in the Refuge,
14 right?
15 A. No, not -- there may be some isolated, but
16 none that I know of.
17 Q. And you've also been listed as an expert
18 in management of northern Everglades habitat; is that
19 correct?
20 A. Um-hum.
21 Q. What opinions do you have regarding that
22 that you'll offer at trial?
23 A. My opinions -- opinion is that, based on
24 all the documents that I've been able to read,
25 historical and otherwise, that northern Everglades
32
1 habitat was a very wet habitat, that fluctuated with
2 the wet and dry seasons.
3 Q. When you say very wet, do you mean -- how
4 long a hydroperiod; 12 months?
5 A. You're talking hydroperiod now.
6 Hydroperiod changes.
7 Q. I understand.
8 A. What --
9 Q. The natural period of inundation.
10 A. For the Refuge?
11 Q. For what is now the Refuge, what is your
12 understanding?
13 A. To my understanding for what is now
14 Refuge, is that the area was wet, wetter than generally
15 some of the other Everglades, because of the
16 topography.
17 Q. Um-hum.
18 A. And that it was -- it was just the
19 water -- the water was there deep during the wet season
20 and sometimes not so deep during the dry season, and
21 probably the surface dried out, the surface dried out
22 on occasion.
23 Q. Tell me your understanding, if you can,
24 with a little more specificity, what were the
25 conditions prior to the federal project, pre-1950?
33
1 A. Which federal projects?
2 Q. In what is now Loxahatchee.
3 A. Which federal project?
4 Q. We're talking about the central and
5 southern project.
6 A. Not the Refuge project?
7 Q. Right, sir. What were the conditions, as
8 you understand them, in terms of aquatic habitat,
9 terrestrial habitat?
10 A. Based on the aerial photos that I've
11 looked at of that area, it was typical northern
12 Everglades habitat with tree islands, intersparsed
13 (sic) -- interspersed throughout it and wet prairie and
14 sawgrass ridges and in -- and sloughs. And that's
15 typical classification of northern Everglades habitat.
16 Q. Did the area you call the flats, does that
17 exist where there is a submerged area?
18 A. Well, there is an area known as Hillsboro
19 Lake.
20 Q. Where was that located?
21 A. In the general vicinity of the flats.
22 Q. Did it occupy the same area?
23 A. I can't say for sure that it occupied
24 exactly the same area, but this was in the general
25 vicinity.
34
1 Q. Did the construction of the S-10
2 structures, did they cause -- and the closing of those
3 structures, did they cause the creation of flats or the
4 pool you talked about earlier?
5 A. Yes. When they were closed in either the
6 late '50s, or I believe it was in the late '50s they
7 were closed, they did cause a pooling of water. Also
8 there is a definite change in topography from the north
9 end to the south end.
10 Q. Is that the area where there are now
11 cattails that you've talked about earlier?
12 A. No. That's where the open water is.
13 There are some cattail around the fringe of that open
14 water on the north end.
15 Q. All right.
16 What was there prior to the creation of
17 the flats, was there terrestrial vegetation, was there
18 sawgrass?
19 A. I would have to go back and look at aerial
20 photos to interpret that question. I can't recall
21 offhand, but it was not cattail.
22 Q. Well, as best you understand, what was the
23 nature --
24 A. Everglades habitat, natural Everglades
25 habitat.
35
1 Q. Sawgrass --
2 A. Tree -- some tree islands, some tree
3 island were flooded out.
4 Q. The tree islands were flooded out by the
5 closing up for the project, correct?
6 A. Closing of the levee, right.
7 Q. You said the conditions prior to the
8 construction of the project were typical of the
9 northern Everglades. Are you aware of an overdrainage
10 or drying out in that area prior to construction of the
11 project?
12 A. Along the immediate area of the Hillsboro
13 Canal, after the Hillsboro Canal was dug, yes.
14 Q. What -- explain the nature of that
15 overdrainage.
16 A. As the Hills -- with open flow into the
17 Hillsboro canal, I would imagine that the area was
18 drained when -- when there was a dry period.
19 Q. Well, it, in fact, was overdrained, wasn't
20 it?
21 A. I don't know whether this was overdrained
22 or not. I know it was drained.
23 Q. Would you describe generally, as you
24 understand them, the hydroperiod impact of the central
25 and southern project on the pre-project Loxahatchee
36
1 area?
2 MS. PONZOLI: Object to form.
3 MR. EARL: Grounds?
4 MS. PONZOLI: I don't think you're
5 specifying the time frame in which you're
6 speaking. I think there's been a number of
7 changes to the drainage of South Florida over
8 time, and unless you give the time frame, I'm
9 not sure his answer will really be meaningful.
10 MR. EARL: I'm sure he'll take your cue,
11 Counsel.
12 MS. PONZOLI: You asked my grounds, Mr.
13 Earl. I only objected to form.
14 THE WITNESS: If you can restate your
15 question, I'll try to answer it.
16 MR. EARL: Sure.
17 Would you read back the question then?
18 (Thereupon, a portion of the record was
19 read back by the court reporter.)
20 THE WITNESS: On the pre-project
21 Loxahatchee area? I think that my -- as I
22 understand it, the scenario as to what took
23 place when the project were -- when the levees
24 were completed and structures were there in and
25 the first closure was that the first year was a
37
1 wet year, and the entire area was filled to
2 maximum. It was drained. There was some --
3 some concern over the integrity of the levees
4 during that first year with full water. And
5 quite a bit of water was released and the second
6 year happened to be a drought year. So the
7 second year was a drought. Those are two
8 impacts that took place.
9 Subsequently, over the years, the water at
10 the south end was usually deeper than normal
11 Everglades habitat and the water at the very
12 north end was shallower, or in some cases
13 overdrained.
14 BY MR. EARL:
15 Q. And what, if any impact, did the
16 overdrainage in the northern end have on the vegetative
17 communities?
18 A. It changed from typical Everglades habitat
19 to woody species, such as willow.
20 Q. And approximately how many acres were
21 involved there? What would you estimate, as refuge
22 manager?
23 A. I -- my -- I can give you a guess. I
24 can't --
25 Q. Yes, sir.
38
1 A. I can't give an estimate.
2 Q. What is your best --
3 A. My best guess on the north end and fringe,
4 that leads down both canals in that area would be
5 somewhere between, probably 2,000 acres. Maybe more,
6 maybe less.
7 Q. Two thousand, plus or minus?
8 A. Um-hum.
9 Q. And you said at the southern end the water
10 is deeper than normal Everglades. What, if any,
11 vegetation impact does that have?
12 A. I think -- I think, in my opinion, it
13 created the open water flats area.
14 Q. And what, if any, changes in the natural
15 vegetation did that cause?
16 A. Flooded out the tree islands.
17 Q. What else, sir?
18 A. I don't know of anything else. It flooded
19 out the natural vegetation, caused open water areas,
20 and it flooded out the tree islands and killed them.
21 Q. And what would be your best estimate of
22 the acreage from that impact in the southern end?
23 A. I don't know. You're asking from --
24 asking me to guess again. And I -- I can give you a
25 guess of 2,000 acres, more or less. I don't have any
39
1 idea what it is.
2 Q. You've looked at --
3 A. I haven't taken map --
4 Q. You've looked at historic photographs,
5 haven't you?
6 A. Yes.
7 Q. Your best, as you sit here today, your
8 best determination of that would be 2,000 acres?
9 MS. PONZOLI: He's told you his best
10 guess, and I've allowed him to guess, Mr. Earl,
11 but it's not going to be better than he guessed.
12 BY MR. EARL:
13 Q. Now, what would you have to look at to
14 determine more specifically?
15 A. Some type of a map that I could get that I
16 knew the scale on I could get the acreage off of, or
17 either go to the office, ask for the acreage off of the
18 satellite image through Dr. Maffei.
19 Q. You could do it from a satellite image
20 map?
21 A. I -- could I do it?
22 Q. Yes.
23 A. If I had a scale and had the time and
24 everything, sure.
25 Q. You could -- could do a quad sheet?
40
1 A. Probably not as accurate.
2 Q. Okay.
3 As refuge manager, what, if any -- any
4 other hydroperiod impact are you aware of as a result
5 of the project?
6 A. None that I know of.
7 Q. What has been the -- you know what a
8 regulation schedule is, don't you, sir?
9 A. Yes.
10 Q. What is it?
11 A. A regulation schedule is the water that --
12 or the level of the water to be maintained. It's been
13 agreed to by the entities involved.
14 Q. And those are the Corps of Engineers and
15 Water Management District and the Fish and Wildlife
16 Service?
17 A. To -- for the interior pool of Loxahatchee
18 National Wildlife Refuge, yes, but not for all of the
19 Refuge.
20 Q. Who else is involved in the rest of the
21 Refuge?
22 A. Just the Fish and Wildlife Service.
23 Q. When you say the interior pool, you're
24 talking about the flats?
25 A. We're talking about Water Conservation
41
1 Area Number 1.
2 Q. The interior area?
3 A. Of Water Conservation Area Number 1.
4 Q. Okay.
5 You not too long ago requested that the
6 regulation schedule be changed, didn't you?
7 A. Yes.
8 Q. And you requested that it be changed from
9 14 to 17 feet -- I'm sorry, to 14 to 17.5 feet; is that
10 correct?
11 A. I believe that's correct.
12 Q. Okay, sir.
13 Would you tell me -- you said you were
14 familiar earlier. Would you describe for me the
15 history of the water management regulation as well as
16 you understand it in Loxahatchee since they closed
17 those gates in 1960?
18 A. No, I really can't, because I haven't gone
19 back to early ones. There is a major change in the
20 regulation schedule. There was not a regulation
21 schedule, to my understanding, when they immediately
22 closed it, and that's the reason the water went too
23 high and then too low. And I think after that there
24 was a decision to make -- to develop a water regulation
25 schedule.
42
1 And over the years, I know in the '60s
2 there was a change. I do not remember the figures on
3 it. And in the '70s I believe there was a change.
4 There's been some interim changes that I would have to
5 look up. I don't know them by heart. And the current
6 schedule, when I got there in 1981, was a schedule of
7 17 feet. For a period of time that dropped off to a
8 low that could go as low as 11 feet by regulation
9 schedule.
10 Q. Is 11 feet the lowest land elevation in
11 Loxahatchee?
12 A. I don't have any idea. There's some
13 elevations along the Hillsboro Canal that I would --
14 that may be a little lower than that. I'm not sure
15 anyone knows the exact elevation along the Hillsboro
16 Canal that's underwater.
17 Q. How long has the current schedule been in
18 place, as you -- to your knowledge when you got there
19 in '81?
20 A. I seem to think that it was in the '70s,
21 since maybe the early to mid '70s that that regulation
22 schedule had been in place. It may have been a little
23 longer than -- it may have been as early as the late
24 '60s.
25 Q. And in your judgment, are there problems
43
1 with 11 to 17 foot schedule of the current schedule?
2 A. Yes.
3 Q. Describe those for me, please.
4 A. From the 17 foot schedule it does not
5 allow the very northern end of the Refuge to be flooded
6 for any significant amount of time. And the 11 foot,
7 the 11 foot schedule drains the entire refuge except
8 for a small portion along the Hillsboro Canal.
9 Q. Am I correct in understanding that under a
10 regulation schedule that's been in existence since at
11 least you got there in '81 --
12 A. Um-hum.
13 Q. -- there hasn't been enough water to
14 inundate the northern end?
15 A. Oh, no. I didn't say there hadn't been
16 enough water. I said that the regulation schedule --
17 Q. Under the schedule?
18 A. -- previous didn't allow it.
19 Q. The water was not allowed to rise above 17
20 feet; is that correct?
21 A. That is correct.
22 Q. Okay.
23 How large an area in the northern end does
24 that affect?
25 A. Again, I'm guessing that if it was exactly
44
1 as 17 feet, it could be a thousand acres, more or less.
2 If it were below 17 feet, if it did not get to 17 feet,
3 it could be considerably more.
4 Q. As refuge manager, are you familiar with
5 the history of the Refuge?
6 A. (Shakes head up and down.)
7 Q. What is your best estimate of the total
8 area in the north that's been impacted by that present
9 regulation schedule, adversely impacted by the present
10 regulation schedule?
11 A. Again, I would say it could be plus or
12 minus 2,000. I don't know of -- I'd have to sit down,
13 Mr. Earl, and classify the -- look at vegetation maps
14 and try to determine what has been caused by over
15 drainage, what has been caused by water quality. I
16 don't know.
17 Q. Just asking your operating parameter as
18 refuge manager, do you think it's about 2,000?
19 MS. PONZOLI: Object to the form. It's
20 been asked and answered.
21 THE WITNESS: I told you I was guessing
22 that it was somewhere in that neighborhood, more
23 or less.
24 BY MR. EARL:
25 Q. Have you been asked to do any analysis or
45
1 to present any testimony or any opinions regarding the
2 areas which have been impacted by nutrients versus
3 hydroperiod?
4 A. Have I been asked to give any opinions on
5 that? This is the only testimony I've given.
6 Q. I understand that. But have you been
7 asked to prepare any opinions?
8 A. I've prepared briefing statements or had
9 briefing statements prepared by my staff on impact of
10 the nutrients, yes.
11 Q. Okay.
12 Let me be specific. You know there's
13 going to be a hearing, correct, in this case?
14 A. Yes.
15 Q. You know it's going to start in October,
16 correct?
17 A. I assume that's when it's going to start.
18 Q. Okay.
19 Have you been asked to do any analysis of
20 the areas of vegetation that have been impacted in
21 Loxahatchee or elsewhere as a result of nutrients
22 and/or hydroperiod?
23 A. Have I been asked to do that?
24 Q. For purposes of the hearing in this case.
25 A. I -- I think that we have prepared
46
1 documentation of the impact of the nutrients on the
2 Refuge. Yes, we have been asked to do that.
3 Q. For purposes of this hearing, is that
4 correct? That's my question.
5 A. I don't know what purpose they're going to
6 be used for, but I know we have prepared numerous
7 briefing statements and impact statements and analyses
8 and so did Work Order 32 that we contracted for. We
9 contracted Work Order 32 to find out some of the
10 impacts.
11 Q. I'm asking you what you're going to rely
12 on if you're going to present any opinions. Have you
13 done anything, prepared any maps, assisted in preparing
14 any maps or other analysis of vegetation, changes in
15 Loxahatchee for purposes of this hearing?
16 A. I -- we've prepared some. I don't know
17 whether they're going to be used at this hearing or
18 not. And as far as a specific request to prepare me a
19 map for a hearing, no, I've not had that request.
20 Q. Okay.
21 Which such maps will you rely on in your
22 opinions that there have been habitat changes; maps,
23 briefing papers or analysis will you rely on in your
24 opinion as to habitat or vegetation changes in
25 Loxahatchee?
47
1 A. Oh, I'll use aerial photos that go back as
2 far as the '40s, and I will use satellite image maps
3 that would be updated as late as this summer.
4 Q. What else?
5 A. Any -- numerous. There's numerous
6 vegetative maps, analyses that have been done in the
7 past, Work Order 32. The Water Management District has
8 numerous maps of the area. They have recent satellite
9 imagery, I understand.
10 Q. How recent is that?
11 A. I don't have -- I'd just say recent,
12 within the last year, or year and a half.
13 Q. What else will you rely on?
14 A. I will rely on information from my
15 technical experts, Dr. Maffei, and from consultants
16 that we have, and from research that is ongoing by Dr.
17 Jones.
18 Q. Now, you talked about aerial photos as far
19 back as 1940. What years are you examining for
20 purposes of rendering your opinion or will you rely on?
21 A. I'm not examining them. I've just looked
22 at them. I know that there are aerial photos that
23 exist for that area as far back as the '40s and
24 intermediate years in between.
25 Q. You haven't yet selected the years you're
48
1 going to rely on in rendering your analysis, correct?
2 A. No, I haven't.
3 Q. Okay.
4 Which satellite image maps, specifically
5 by year, have you relied on? Have you selected those
6 yet?
7 A. No.
8 Q. Okay.
9 And have you selected the specific imagery
10 that you'll use from the Water Management District yet?
11 A. No.
12 Q. That still has to be done, correct?
13 A. If it's available, I would assume we would
14 have that, access to it. I don't know.
15 Q. What's the most recent satellite imagery
16 that you have access to?
17 A. I don't know the date on it. I think
18 1987.
19 Q. You haven't seen anything more recent than
20 1987?
21 A. Not that I recall. There may be some more
22 recent stuff. I just don't recall. I don't -- I don't
23 memorize all the dates on all the satellite images I
24 look at.
25 Q. Who would be more knowledgeable, Dr.
49
1 Maffei on that?
2 A. Mister -- Dr. Maffei.
3 Q. What topographical analysis will you rely
4 on, if any?
5 A. Probably the work that was done under Work
6 Order 32, the topo sheet that was developed there.
7 That's the most current.
8 Q. What other topographical analysis exists,
9 to your knowledge?
10 A. There's a couple of other small sheets
11 that I've seen. I don't know how they were developed.
12 And there's some possibly by the Corps of Engineers,
13 and possibly there's the topographic data at Water
14 Management District. And of course, the USGS topo
15 sheets.
16 Q. In your judgment, the Work Order 32
17 topographic analysis is the most -- is the best
18 available?
19 MS. PONZOLI: Object to the form.
20 THE WITNESS: In my opinion, the topo
21 sheet that's in Work Order 32 that was developed
22 at that time in cooperation with the Water
23 Management District was the -- is the most
24 accurate topo available on the Refuge.
25
50
1 BY MR. EARL:
2 Q. As refuge manager, do you believe that the
3 Work Order 32 topographic sheet is the best available
4 topographic analysis?
5 MS. PONZOLI: Same objection.
6 THE WITNESS: Yes.
7 BY MR. EARL:
8 Q. Now, you've listed aerial photographs not
9 selected yet, satellite imagery not selected yet, Work
10 Order 32, Water Management District imagery not
11 selected yet. Anything else you rely on in your
12 analysis and judgments on vegetation in Loxahatchee?
13 A. We'll rely on the USGS topo sheet to some
14 extent, but not accurately, because of the nature in
15 which they're prepared. I'm not sure what else may be
16 available at that time.
17 Q. Now, you say you've seen some small sheets
18 in your reference to the Corps of Engineers and Water
19 Management District. What is the nature of those
20 sheets?
21 A. It's a letter sized map that was provided
22 to you during discovery that shows a topo -- shows
23 topographic lines on the Refuge.
24 Q. That's an early Fish and Wildlife topo?
25 A. Yes.
51
1 Q. That's by Mr. Gibbons?
2 A. Well, Mr. Gibbons was a supervisor in
3 Atlanta, he did not do it. I don't know who prepared
4 it.
5 Q. Okay.
6 Now, did -- has the current regulation
7 schedule in effect, since you came on board in 1981,
8 with a high of 17 feet, any other problems that that's
9 causing, other than drying out in the northern area?
10 A. Well, it could cause waters to -- in my
11 opinion, it could cause water to be forced to the
12 interior of the Refuge, the higher schedule.
13 Q. You're proposing a higher schedule. I'm
14 talking about the existing one, 17 feet.
15 A. I'm talking about the 17 foot regulation.
16 Q. The existing schedule?
17 A. The regulation schedule that is existing
18 could force water from the canals to the interior of
19 the Refuge.
20 Q. As opposed to what, a lower schedule?
21 MS. PONZOLI: Object to form.
22 THE WITNESS: I don't know what you're
23 asking me.
24 BY MR. EARL:
25 Q. Well, I don't understand your answer.
52
1 Excuse me, let's see if I can clarify.
2 I've asked you if the 17 foot schedule
3 that now is existing is causing any other problems that
4 you're aware of.
5 A. And my answer was that it -- it could
6 force waters to the -- towards the interior of the
7 Refuge.
8 Q. And what problems would that cause?
9 A. Well, it could carry the nutrients further
10 to the interior of the Refuge from the canal.
11 Q. And you considered that in recommending a
12 higher regulation schedule?
13 MS. PONZOLI: Object to the form. I think
14 it's your higher and lower that's causing
15 trouble, Mr. Earl, with it. It would seem to me
16 that --
17 THE WITNESS: I don't understand.
18 MS. PONZOLI: -- you and he are not using
19 that term in the same way.
20 BY MR. EARL:
21 Q. Did you consider that possibility when you
22 recommended the currently proposed regulation schedule?
23 A. Of more water going to the interior --
24 Q. Yes, sir.
25 A. -- of the Refuge?
53
1 It was considered that we would have
2 higher water levels on the north end of the Refuge, and
3 higher water levels on the south end of the Refuge at
4 the higher -- at the new regulation schedule.
5 Q. And would it also be true that more water
6 would be forced to the interior?
7 A. It could be.
8 Q. And was that, the possible water quality
9 impact of that, taken into consideration when you
10 recommended higher water levels?
11 A. Well, to tell you the truth, Mr. Earl, we
12 were hoping we'd have cleaner water by now.
13 Q. My question, though, sir, is, did you take
14 that into account?
15 A. Yes.
16 Q. Okay.
17 Any other adverse impact of the current 17
18 foot schedule?
19 A. The 17 foot part of it?
20 Q. Yes, sir. The high end.
21 A. None that I know of.
22 Q. Okay.
23 What are the adverse impacts of 11 foot
24 schedules?
25 A. Drains the entire marsh when the water
54
1 goes to 11 feet and then lower.
2 Q. What impact, if any, has that had on
3 vegetation in Loxahatchee?
4 A. It can allow extended periods of dry, can
5 allow woody plants to become established.
6 Q. By woody plants, you're talking about
7 willow?
8 A. Willow is one. There are several woody
9 plants, maidencane, wax myrtle, cocoplum. There's a
10 lot of woody plants that you can find out there.
11 Q. As refuge manager, you were aware of any
12 areas where the 11 foot schedule has caused such
13 problems in the Refuge?
14 A. Yes.
15 Q. Whereabouts?
16 A. Along the fringes and along the north end.
17 And in some cases, during -- during the '91 drought
18 in -- in isolated areas in the interior.
19 Q. You say along the fringe. You talking
20 about the fringe of the canals?
21 A. The canals, yes.
22 Q. That's the L-40, the L-39 and L-7?
23 A. Yes.
24 Q. And have you got any estimate of acreage
25 that -- that has resulted in woody vegetation?
55
1 A. No, no, I do not.
2 Q. Any other adverse impact of the existing
3 11 foot drawdown -- I'm sorry, 11 foot schedule?
4 A. Vegetative?
5 Q. Yes, sir.
6 A. Other than it dries out the wet prairie
7 areas.
8 Q. What's the impact of that?
9 A. The plants that normally are found in
10 emergent or submergent areas are killed.
11 Q. And, as refuge manager, what would be your
12 best estimate of acreage?
13 A. I have no idea. It's an intersparsed area
14 with a mosaic of wet prairie areas that I do not know
15 what the acreage of wet prairie areas is, or what would
16 have been affected by that drought.
17 Q. Where are we talking, what quadrants of
18 the --
19 A. The entire Refuge.
20 Q. So that that impact has occurred over the
21 entire Refuge, correct?
22 A. The drought impact that -- that the 89-90
23 drought impacted the entire Refuge, yes.
24 Q. What other effects did that drought have?
25 A. It affected all the wading birds. There
56
1 was no water for a food base. It affected the
2 alligators. It affected quite a bit of the wildlife.
3 It affected public use. There were a lot of effects
4 from the drought.
5 Q. Okay.
6 Other than drying out the wet prairie and
7 the woody vegetation along the fringe in the north end,
8 what other impact has the 11 foot existing schedule
9 had?
10 A. Other than the ones I've already named?
11 Q. Yes, sir.
12 A. I can't think of any.
13 Q. What, if any, impact have fires had in
14 Loxahatchee, as you understand it?
15 A. I don't know what you mean, other than --
16 about impacts. It burned up the vegetation. What -- I
17 don't understand what you're asking.
18 Q. I'm asking you, as Refuge manager, what
19 your understanding is of the adverse impact, if any, of
20 fires in the Refuge?
21 A. Adverse impact?
22 Q. Yes, sir.
23 A. Adverse impact would cause Melaleuca seeds
24 to spread. It would eliminate wildlife habitat for a
25 short term. It could kill some of the desirable or
57
1 some of the native vegetation such as tree islands it
2 burns through. Those are some of the adverse impacts.
3 Q. Any others that you're aware of?
4 A. I'm sure there's others. I don't -- I
5 mean, we could name quite a few. It displaces
6 wildlife, it could burn a very thin layer off the peat,
7 or it could cause peat fire. I mean, there's any
8 number of adverse impacts that fire could have.
9 Q. Is fire a significant factor in managing
10 the Loxahatchee?
11 A. Significant, I don't think so. It's a
12 factor, but I don't know whether it's significant or
13 not. I don't think it is.
14 Q. Do you, as Refuge manager, have any -- how
15 many fires do you recall, substantial fires?
16 A. Substantial, meaning what?
17 Q. Five thousand or more acres, since you've
18 been there.
19 A. Probably two.
20 Q. When were they, sir?
21 A. One was in 1981, and one was in 1990. I
22 believe that was more than 5,000 acres.
23 Q. How big was the '81 fire?
24 A. Oh, guessing, I doubt if the '81 fire was
25 5,000 acres. It was probably smaller than that. The
58
1 '80 -- the '89 fire was estimated to be in the
2 neighborhood of 40,000 acres.
3 Q. And did the peat burn on that occasion?
4 A. I'm sure there was some top peat burn on
5 that. There was no deep peat burns.
6 Q. Historically, there have been deep peat
7 burns, haven't there?
8 A. I don't know on the Refuge. There
9 historically have been peat burns in the Everglades,
10 but I don't know about the Refuge. I'd have to go back
11 and check the records.
12 Q. What records would you check for that?
13 A. I could look at some Refuge narratives,
14 the annual narrative reports, to see if there is any
15 reference to that. That would be the quickest easiest
16 way.
17 Q. What else would there be?
18 A. I would imagine somewhere in the
19 biological files or in files of the Refuge there may be
20 some references to fire.
21 Q. To your knowledge, historically, has fire
22 had any impact on the hydrology of the Loxahatchee?
23 A. No.
24 Q. Had --
25 A. Fire on hydrology? I don't understand
59
1 that question. My answer will be no.
2 Q. Let's see -- see if I can make this
3 clearer for you. To your knowledge, historically, has
4 fire resulted in different water routings or in
5 inundation periods than would otherwise exist?
6 A. No.
7 Q. Has there been any significant loss of
8 peat as a result of fire in Loxahatchee?
9 MS. PONZOLI: Object to form.
10 THE WITNESS: I don't know. I don't
11 understand significant. What are you --
12 BY MR. EARL:
13 Q. Having any effect on the hydrology or
14 permanent vegetative communities or animals.
15 A. I'm sure that fire has changed vegetative
16 communities to some extent where it was intense enough.
17 And then hydrology, I don't understand what you are
18 talking about, fire having an effect on hydrology.
19 Fire didn't burn the water up. And --
20 Q. It burns the peat, changes the land
21 elevation, doesn't it, sir?
22 A. Oh. You're talking about water depth,
23 right?
24 Q. Water flow patterns, water depth, any
25 hydrology difference.
60
1 A. None that I know of.
2 Q. You've never seen any Fish and Wildlife
3 Service reports analyzing that issue, have you, sir?
4 A. No.
5 Q. So it would be a surprise to you if they
6 existed?
7 A. It wouldn't be a surprise. It would just
8 be another piece of information.
9 Q. Do you have any professional opinions
10 regarding what, if any, role hydroperiod plays with
11 regard to establishment or propagation of cattails?
12 A. No, I wouldn't. I have some knowledge.
13 Q. Your answer is you have no professional
14 opinions?
15 A. Professional opinions?
16 Q. Yes, sir.
17 A. Yeah, I would have -- I would have an
18 opinion on hydroperiod and cattails.
19 Q. What is that opinion?
20 A. Based on data that I've seen, documents
21 that I can't -- I can't recall the title of them, and
22 even statements by Dr. Curtis Richardson, hydroperiod
23 plays a role in cattails in northern climates.
24 Q. By northern climates, you mean
25 non-Everglades climates?
61
1 A. Right.
2 Q. In your opinion, what, if any, role does
3 hydroperiod play in cattail establishment or
4 propagation in Everglades climate?
5 A. We would say that if there's no water, you
6 might -- it would -- it would affect cattail in some --
7 somewhere or another hydroperiod will, because plants
8 have to have water.
9 Q. But you -- you haven't done any analysis
10 of the impact of that?
11 A. Of the impact, no, I haven't done any
12 analysis of impact.
13 Q. And what's the relative role of
14 hydroperiod versus nutrients in Everglades environment?
15 MS. MISIAK: Object to form.
16 THE WITNESS: I don't understand what
17 you're asking.
18 BY MR. EARL:
19 Q. Is hydroperiod a factor in the
20 establishment of and propagation of cattails, as you
21 understand it?
22 A. In the Loxahatchee Refuge?
23 Q. Yes, sir.
24 A. I don't think so.
25 Q. Is there -- are you certain of that, or
62
1 are you -- you say you don't think so. Is that a firm
2 opinion?
3 A. It's a firm opinion. No.
4 Q. Okay.
5 What do you base that opinion on?
6 A. I base that opinion on where I see
7 cattail.
8 Q. What else do you --
9 A. And where I don't.
10 Q. And what else do you base it on?
11 A. From the documents I've read, both in Work
12 Order 32 and some of the documents from the Water
13 Management District, some of the tech pubs.
14 Q. When, as you understand it, were cattails
15 first established in Loxahatchee?
16 A. I have no earthly idea. I would imagine
17 there was some cattail that existed in the Everglades
18 since the Everglades were formed. I don't know when
19 the cattail was first established in this, that area.
20 Q. What's your understanding of the change to
21 cattails? When did it become meaningful?
22 A. Well, it became meaningful to me in March
23 of '81 when I got here and asked what caused these vast
24 stands of cattail. That's when it became meaningful to
25 me. Prior to that, I don't know.
63
1 Q. Have you ever looked historically and
2 examined what the cattail --
3 A. I told you I looked at the aerial photos
4 of the '40s in these areas and there didn't appear to
5 be vast stands of cattail like there are there now.
6 Q. Okay.
7 When did this first come into existence,
8 as best you can tell from your investigation?
9 MS. PONZOLI: Asked and answered.
10 THE WITNESS: All the Refuge was
11 established in 1951. The levee was closed in
12 1959, I think it was. And '60, I would have
13 assumed it was after that. I don't know. I'd
14 have to go back and look and see when the first
15 manager that decided there was a problem looked
16 at it.
17 BY MR. EARL:
18 Q. Where would you look to find that?
19 A. In the annual narrative reports. That's
20 the quickest. That's the quickest way to find a
21 generalized subject for me.
22 Q. And where else would you go to find that
23 out?
24 A. All depends on what I found in there.
25 Q. Well, if you found some mention of
64
1 cattails, where else would you go to find references?
2 A. I would look in the rest of the historic
3 files for the Refuge.
4 Q. Under what?
5 A. Under what, I don't know -- under the
6 biological files. Under -- probably under cattail,
7 maybe. I don't know. There could be any number.
8 Their filing system that was here when I got here was a
9 discombobulated filing system. That has not been
10 completely reworked yet.
11 Q. Still discombobulated?
12 A. To some extent there are some documents
13 that have not been compiled. The -- the biological
14 section has. Dr. Maffei made an effort to straighten
15 that out pretty much. I could probably find that in
16 the biological section, the file system.
17 Q. Now, your opinion, hydroperiod is not a
18 factor in the establishment or propagation of the
19 Loxahatchee Refuge, is that -- and you said you were
20 certain of that. Does that, in your opinion, play no
21 factor, hydroperiod plays no factor whatsoever in
22 either the establishment or propagation of cattails --
23 MS. PONZOLI: Could you --
24 BY MR. EARL:
25 Q. -- is that correct?
65
1 MS. PONZOLI: Would you read that back
2 again, please?
3 (Thereupon, a portion of the record was
4 read back by the court reporter.)
5 BY MR. EARL:
6 Q. You earlier told me, am I not correct,
7 that hydroperiod was not a factor in the establishment
8 of the cattails in the Loxahatchee Refuge, correct?
9 A. In my opinion, I don't believe that it is.
10 Q. Yes, sir.
11 In your opinion, does hydroperiod play any
12 role whatsoever in the establishment or propagation of
13 the cattail community that now exists in Loxahatchee?
14 A. No.
15 Q. You base that on the same thing you told
16 me about earlier?
17 A. Yes.
18 Q. Mr. Neely, would you describe to me the
19 ecological problems in order of importance, the
20 ecological problems that exist in the Loxahatchee
21 Refuge today?
22 A. Water quality is number one.
23 Q. Okay, Mr. Neely.
24 What about the other --
25 A. I would say that Melaleuca is probably one
66
1 of the ecological problems that is of importance. The
2 spread of cattail is one of the top ones.
3 Q. Any others?
4 A. No. I think the water regulation schedule
5 is, if you consider that an ecological problem, I think
6 that is a present ecological problem that needs to be
7 addressed.
8 Q. Put that last on your list, number four?
9 A. No, I wouldn't make a -- I wasn't making a
10 priority --
11 Q. That was the question, are you able to
12 prioritize those?
13 A. Sure. Water quality.
14 Q. Okay.
15 A. Cattail spread, Melaleuca.
16 Q. Cattail spread? When you say -- excuse
17 me, sir. Cattail spread, two?
18 A. I would say so.
19 Q. Three is Melaleuca?
20 A. Yes.
21 Q. And four is what?
22 A. The regulation schedule.
23 Q Do you know whether or not Melaleuca have
24 impacted more areas of Loxahatchee than cattail has?
25 A. No, I don't.
67
1 Q. Never looked into that?
2 A. Well, I could look and see. To ask me
3 right off the bat, I don't know. Which occupies the
4 most space, if that's the question you're asking?
5 Q. Question was, have you ever looked at that
6 in the past?
7 A. I've not compared the two, no. They're
8 separate issues, as far as I'm concerned.
9 Q. Tell me, are you aware of the history
10 generally, the history of herbicide and pesticide use
11 in Loxahatchee? Would you go back to tell me what you
12 know about that, sir?
13 MS. PONZOLI: Object to form. I think you
14 have to ask him a specific --
15 BY MR. EARL:
16 Q. Tell me what you know about the herbicide
17 and pesticide application in Loxahatchee, if you would,
18 please.
19 MS. PONZOLI: Same objection.
20 THE WITNESS: How far back do you want me
21 to go?
22 BY MR. EARL:
23 Q. Let's start out with since the earliest
24 you know about.
25 A. In the '60s there was a major program for
68
1 spray water hyacinth.
2 Q. With what?
3 A. I don't remember the -- the Diquat was one
4 of the chemicals that I know was used. I'm not sure
5 what other chemicals without going back to the records
6 and looking to see what they used in those days,
7 because I wasn't the manager then.
8 There was an intensive problem, in
9 cooperation with Water Management District, to keep the
10 canals open. The District does some chemical
11 treatment. I think they're still using Diquat on the
12 canals, the hyacinth in the canals and water lettuce.
13 The -- there was a study concerning Diquat effects on
14 snails, the effect of copper in the '60s. There was a
15 major lawsuit concerning the Refuge that involved the
16 spraying of some tomatoes by drift spray from treatment
17 in the Refuge. I don't know the details of that.
18 Q. Am I correct in understanding they used to
19 apply -- the Refuge used to apply herbicides by aerial
20 application, and then that drifted over, that was the
21 basis of lawsuits?
22 A. That's correct. That's correct.
23 Q. And they killed tomatoes was the
24 allegation, correct?
25 A. Yes.
69
1 Q. What --
2 A. That was under a manager by the name of
3 Bill Julian.
4 Q. Okay.
5 What program, part of that hyacinth
6 eradication?
7 A. It was part of hyacinth control to keep
8 the waterways open.
9 Q. Okay.
10 A. Then as far as 1981 we or I suspended it,
11 we did not continue hyacinth control. I don't know how
12 much in advance of my coming that we -- that they
13 suspended hyacinth control or they reduced it, but I
14 know that in 1981 we -- I suspended hyacinth control
15 and Water Management District assumed control of
16 hyacinth in the canals.
17 Q. Was the Fish and Wildlife Service doing it
18 in the canals prior to that?
19 A. To some extent. And the edge of canals
20 and in the flats and in areas, little pockets off the
21 edge of the canal. We didn't do much in the canals.
22 That was the Water Management District's
23 responsibility, and still is.
24 Q. So prior to your arrival, as you
25 understand it, the Fish and Wildlife Service was
70
1 applying herbicides in what you've called the flats?
2 A. Yes. In the flats and in little open
3 water areas that opened off the edge of the L-40, and
4 to my -- to my knowledge the L-7 and the L-39 canals,
5 open water areas around them.
6 Q. Where were those open water areas,
7 specifically?
8 A. There's little pockets of open water areas
9 canal at high water that would have water hyacinth in
10 them as you come down the canal it varies in size from
11 less than an acre to sometimes a couple of three, four
12 acres.
13 Q. What effect -- what was being used, as you
14 understand it?
15 A. Diquat -
16 Q. 2,4-D was used at one --
17 A. Back in the days when 2,4-D was allowable,
18 I know 2,4-D was used, yes.
19 Q. And do your records show how many pounds
20 or gallons of 2,4-D was used? Where would I go to find
21 that out?
22 A. I would assume that it would be available
23 at the Refuge, if those records have been maintained
24 over those number of years.
25 Q. Have you ever seen them?
71
1 A. I've seen some chemical treatment records,
2 but I don't recall what they pertain -- pertain to.
3 Q. What effect does 2,4-D have, any affect,
4 to your knowledge, on sawgrass or other vegetation?
5 A. I don't know. I don't have any knowledge.
6 Other vegetation being?
7 Q. Whatever else was in Loxahatchee when it
8 was sprayed.
9 A. It possibly could have. I don't know.
10 Q. And you -- any studies been done by the
11 Fish and Wildlife Service to determine the adverse
12 vegetative impact of application of 2,4-D or Diquat by
13 the Service on vegetation?
14 A. None that I'm aware.
15 Q. Okay.
16 A study was done, you say, on apple
17 snails?
18 A. Diquat.
19 Q. What else?
20 A. Diquat, I believe, has copper in it, and
21 there was some concern over copper killing snails.
22 Q. What did that show, as you recall?
23 A. It showed that copper was not a major
24 factor, best -- as best I can remember that study. I
25 didn't read it in detail. It was finishing up when I
72
1 came here. And best I can recall was that the copper
2 was in the sediment, and not -- did not affect the
3 snail population in general.
4 Q. In your opinion, Mr. Neely, did the
5 Service 's applications or the District's application
6 of pesticides have any adverse impact on vegetation in
7 the Loxahatchee?
8 A. It killed the water lettuce and water
9 hyacinth.
10 Q. Other than that?
11 A. It would kill cattail if it got on it, and
12 possibly sawgrass, and any other woody vegetation along
13 the edge of the canal.
14 I don't know what else it was applied to
15 along the edge of the canal.
16 Q. Let me make the question clear. My
17 question -- my question is, has any determination been
18 done by you or anyone else as to whether --
19 A. I don't know of any problems.
20 Q. Has any determination been done to
21 determine if there is a problem, or was a problem?
22 MS. PONZOLI: Maybe we go back to the
23 original question? I'm sorry. I somehow seem
24 to have lost the question we were on here.
25 THE WITNESS: I don't understand.
73
1 MR. EARL: One --
2 MS. PONZOLI: One question back or two
3 questions back.
4 BY MR. EARL:
5 Q. Let's start over.
6 In your opinion, did the use of herbicides
7 in the Loxahatchee by the District or/and Fish and
8 Wildlife Service in any way adversely impact native
9 vegetation in the Loxahatchee?
10 MS. PONZOLI: I'm going to let him answer
11 that question, Mr. Earl, but I don't think
12 that's one of the things he's been offered to
13 offer opinions on. It's my understanding the
14 League is quite particular about what it allows
15 its witnesses to offer opinions on.
16 You may answer, Mr. Neely.
17 MR. EARL: I would point out, Counsel,
18 he's been offered as an expert in water quantity
19 impact, habitat trends and management of the
20 habitat.
21 MS. PONZOLI: I understand that we
22 designated him.
23 THE WITNESS: Your question again is?
24 MS. PONZOLI: I want you to read it back,
25 please, with my objection.
74
1 (Thereupon, a portion of the record was
2 read back by the court reporter.)
3 THE WITNESS: Okay.
4 In my opinion, there were no -- and I say
5 this with reservation, no major impact to native
6 vegetation. There could be a stem of sawgrass
7 growing along the canal that it would kill, but
8 in no way was a major impact by either the
9 District's applications or the Service's.
10 BY MR. EARL:
11 Q. And what do you base that opinion on?
12 What research have you done?
13 A. Research? I didn't do any research on
14 that, Mr. Earl. That's based on my opinion of my -- of
15 visual observations that I might make in areas that
16 have been sprayed, and in reports from the spray crews,
17 and in the approvals that we get to apply pesticides
18 on -- on national wildlife refuges.
19 Q. You never saw the areas where 2,4-D was
20 applied, did you?
21 A. (No response.)
22 Q. Do you know where it was applied?
23 A. No.
24 Q. So you can't give an opinion on that, can
25 you?
75
1 A. No.
2 MS. PONZOLI: Object to form. First you
3 want his opinion. Next, you don't want his
4 opinions.
5 MR. EARL: Well, he said he's basing it on
6 something, Counsel. Now we're trying to
7 determine whether he, in fact, has seen it as he
8 says.
9 THE WITNESS: I wasn't there when they
10 sprayed 2,4-D.
11 BY MR. EARL:
12 Q. Do you know about where 2,4-D was applied?
13 A. No.
14 Q. Have you done any -- any other research or
15 analysis or had anyone else do it to determine the
16 impact of that 2,4-D in the area it was applied?
17 A. No.
18 Q. And what else do you base your opinion on
19 that 2,4-D was -- we'll start with that -- had no
20 adverse impact on the Loxahatchee?
21 A. I -- I just don't know of any.
22 Q. Do you know what 4 -- 2,4-D is, what its
23 label application is?
24 A. No, I don't. I'd have to go read it.
25 Q. Have you ever used it at a refuge that
76
1 you've been a manager of or an employee at?
2 A. I believe 2,4-D was used at Mattamuskeet
3 and at Cape Romain.
4 Q. You have any involvement whatsoever in the
5 use of that pesticide?
6 A. Other than being an assistant on the
7 station at the time.
8 Q. Well, what was the role -- were you
9 involved in the determination to apply it or the areas
10 to be applied?
11 A. Mr. Earl, I don't recall what -- when I
12 put 2,4-D out. I've been in service for quite some
13 time. I've put out a number of chemicals and directed
14 a number of chemicals to be used. They're all covered
15 by chemical use proposals. And I don't recall all the
16 chemicals that I've used.
17 Q. You have used 2,4-D though?
18 A. Yes.
19 Q. What other chemicals have you used?
20 A. Round Up.
21 Q. You've used that at Loxahatchee, haven't
22 you?
23 A. I've not personally used, I've directed
24 that it be used.
25 Q. What else have you used?
77
1 MS. PONZOLI: You talking about his whole
2 career? Am I understanding the question
3 correctly?
4 MR. EARL: Right now we are, yes.
5 MS. PONZOLI: Okay.
6 THE WITNESS: I just don't recall, Mr.
7 Earl.
8 BY MR. EARL:
9 Q. Okay.
10 What else have you used at Loxahatchee
11 other than Round Up?
12 A. I've not used any chemicals at
13 Loxahatchee. I've directed their use.
14 Q. Okay.
15 What else have you -- other than Round Up,
16 what have you directed to be used at Loxahatchee?
17 A. We have used Arsenal on Melaleuca. We've
18 used -- I'm drawing a blank on some of the Melaleuca
19 chemicals that we used. Garlon.
20 Q. How do you spell that?
21 A. Garlon, G A R L O N. And that's --
22 Q. That also on Melaleuca?
23 A. Yes.
24 Q. Okay.
25 Use that on anything else?
78
1 A. I don't know whether they use it on
2 anything else or not. I'd have to look, see. Yes,
3 they use it on Brazilian pepper and they use it on
4 Australian pine.
5 Q. What else have you directed the use of,
6 other than Round Up, Arsenal and Garlon?
7 A. There's been some Diquat used when I first
8 got there.
9 Q. Under your direction?
10 A. Yes.
11 Q. What was that used on?
12 A. It was used on some water hyacinth, water
13 lilies.
14 Q. In what area, the flats?
15 A. No. It was used in the impoundments,
16 impoundments A, B, and C.
17 Q. Over on the eastern side?
18 A. Yes. In the ownership area.
19 Q. Was Diquat, during your tenure, ever used
20 in the flats?
21 A. By the Water Management District?
22 Q. With your consent and approval, correct.
23 A. Yes.
24 Q. How long after you got there was that
25 used?
79
1 A. It's still being used, as far as I know,
2 in the canal areas.
3 Q. Canals?
4 A. In the -- and it's sometimes, when the
5 open water areas -- it's kind of hard to distinguish
6 and to reach the objective when they use Diquat in
7 canals. They sometimes go into the flat area.
8 Q. Diquat have any impact on native
9 vegetation, to your knowledge?
10 A. I'm sure that if it gets on it it might
11 kill it.
12 Q. Okay.
13 Other than -- what is the name for Round
14 Up, do you know? Does that have another name? That's
15 the brand name?
16 A. It's a brand name.
17 Q. Where has that been used under your
18 direction?
19 A. In the impoundment, in the impoundment
20 area.
21 Q. Where else?
22 A. I don't think there is any other place. I
23 don't think it's been used on the interior.
24 Q. Who at the Loxahatchee is the most
25 knowledgeable regarding the present application of
80
1 pesticide?
2 A. Dr. Maffei.
3 Q. What are Dr. Maffei's -- what are his
4 specialties and responsibilities at the Loxahatchee?
5 A. Dr. Maffei is my senior biologist and his
6 responsibility is the biological program at Loxahatchee
7 and Hobe Sound.
8 Q. And does he supervise any employees?
9 A. Yes.
10 Q. Who are those?
11 A. Sue Jewel and Fred Broerman, who is there
12 now. And three other employees, currently laborer
13 types.
14 Q. Who do what type of things; so I don't
15 have to --
16 A. Chemical application.
17 Q. Is there a foreman in that crew?
18 A. Yes.
19 Q. Who is that?
20 A. Well, let's see. Today -- that's a vacant
21 job today. The person just -- that just went on, he --
22 yeah, we don't use the word foreman. We have a -- one
23 of the assistant biologists assists the crew with their
24 chemicals in making sure that they're applied right,
25 and everything.
81
1 Q. Who is that?
2 A. That's Fred Broerman now, and Bill -- wait
3 a minute. Bill Thomas. I have a Dave Smith and Bill
4 Thomas, and I get their first names mixed up.
5 Q. Is Bill Smith still there?
6 A. Yes. Dave Smith, Dave Smith is there.
7 Q. Dave Smith and Bill Thomas?
8 A. Yeah. Dave Smith is one of the laborers.
9 Q. Who has been there longest, Bill Thomas or
10 Dave Smith?
11 A. Been at Loxahatchee the longest?
12 Q. And applying chemicals the longest.
13 A. They've been there the same amount of
14 time.
15 Q. How long is that?
16 A. About a year or so.
17 Q. Who did it before then?
18 A. We had a young lady that was a biological
19 technician by the name of Camille Sewell, S E W E L L.
20 Q. She still there?
21 A. No.
22 Q. Where is she now?
23 A. She works for the Florida Game and Fish
24 Commission.
25 Q. How long was she in that position?
82
1 A. For two years, probably a little more.
2 Q. Anybody presently there who's familiar
3 with the chemical application going back further than
4 that?
5 A. Some of the maintenance workers that used
6 to apply the chemicals to the water hyacinth.
7 Q. Who is that?
8 A. Bob Horsley, Steve Matzkow and Randy
9 Grabo.
10 Q. Would you spell those names, please?
11 A. Just the last names?
12 Q. Bob?
13 A. B O B. Horsley is -- you want their name
14 spelled?
15 Q. Yes, sir.
16 A. Bob, last name, Bob Horsley,
17 H O R S L E Y.
18 Q. How long has he been at --
19 A. He has been there longer than I have. I
20 don't know the exact date of his entrance on duty.
21 Q. He used to apply chemicals in the open
22 waters, water areas, correct?
23 A. Yes.
24 Q. Was he there when they were doing 2,4-D,
25 do you know?
83
1 A. Yes, I think he was. I'm not sure.
2 Q. Okay, sir.
3 Who else, please?
4 A. Steve Matzkow, M A T Z K O W, and Randall
5 Grabo, G R A B O.
6 Q. Are both those gentlemen there also the
7 longest, as long --
8 A. They have been longer than I have.
9 Q. Okay.
10 A. I do not know the exact entrance on duty
11 that they had. I do know that they applied chemicals.
12 Q. Any of them more knowledgeable than the
13 others regarding the historic application of chemicals
14 down there?
15 A. Matzkow and Horsley probably would be more
16 knowledgeable than Grabo. I'm not sure to the extent
17 Grabo applied chemicals.
18 Q. Any other chemicals that were applied
19 under your supervision other than Round Up, Arsenal,
20 Garlon, Diquat?
21 A. None that I recall.
22 Q. Why did you stop the application of Diquat
23 after you got there?
24 A. The expense of the program and the
25 effectiveness of the programs in controlling water
84
1 hyacinth was my consideration.
2 Q. Would you tell me if 2,4-D had stopped by
3 the time you got there?
4 A. As far as I recall, 2,4-D was not being
5 used when I got there.
6 Q. Why was the application of 2,4-D stopped?
7 A. I do not know. It was stopped before I
8 got there.
9 Q. It was stopped generally at the Fish and
10 Wildlife Service; is that correct, sir?
11 A. I'm --
12 Q. Was it stopped -- its application was
13 stopped systemwide by Fish and Wildlife Service, was it
14 not?
15 A. I don't know.
16 Q. You're not aware of any -- you're not
17 aware of any problems arising from the application of
18 2,4-D?
19 A. 2,4-D was a chemical that we stopped using
20 at the direction of Service, if that's what you're --
21 if that's your question.
22 Q. Why?
23 A. I don't know.
24 Q. You're not aware of any problems that its
25 application caused?
85
1 A. There were problems was the reason it was
2 stopped, but specifically, I'd have to look at the
3 reports as to why it was stopped.
4 (Thereupon, a discussion was held off the
5 record.)
6 BY MR. EARL:
7 Q. What is your educational background?
8 A. I have a BS degree in wildlife -- in
9 biology, not wildlife, but in biology.
10 Q. Counsel has handed you a resume that
11 you've been -- provided to us also.
12 A. Yes. That's a standard resume that I use.
13 Q. Okay.
14 Is that prepared for purposes of this
15 deposition?
16 A. No, it was not.
17 Q. For what purpose was that prepared?
18 A. It's used when I give talks, any -- any
19 time that I need a background for someone.
20 Q. Do you have other resumes that you use
21 from time to time?
22 A. No, other than updated ones. This appears
23 to be the latest one.
24 Q. Have you ever testified as an expert
25 witness in a court of law or otherwise?
86
1 A. I've been called as a -- as a witness. I
2 don't know whether they classified me as an expert or
3 not.
4 Q. How many times have you been called as a
5 witness?
6 A. I've testified twice.
7 Q. Where, sir?
8 A. One in eastern North Carolina at
9 Swanquarter, North Carolina, and recently at Fort
10 Lauderdale.
11 Q. Any other times you've testified?
12 A. Numerous times in magistrate's court, in
13 federal district court when we were prosecuting
14 criminal cases.
15 Q. Enforcement matters?
16 A. Yes.
17 Q. Law enforcement?
18 A. Law enforcement matters.
19 Q. Okay.
20 Apart from that?
21 A. No, none.
22 Q. Okay.
23 What was the subject matter of your
24 testimony in Fort Lauderdale?
25 A. It was a civil case. It was management of
87
1 the Refuge concession operation, civil case, personal
2 injury.
3 Q. Someone was suing who?
4 A. Someone was suing our former
5 concessionaire.
6 Q. Who has been -- someone has been injured?
7 A. A visitor to the Refuge had been injured
8 at the concession operation.
9 Q. What was the purpose of you're testifying?
10 A. As to the relationship between the
11 concession and the federal government, in response to
12 who had responsibilities.
13 Q. This has no relationship to SWIM issues at
14 all, does it?
15 A. None whatsoever.
16 Q. Okay.
17 What about in eastern North Carolina, what
18 was the subject matter of your testimony?
19 A. Rainfall. I was -- I was the keeper of
20 official rainfall records at that particular station
21 and I was summoned to court to testify over the amount
22 of rainfall at certain periods of time. Again, a civil
23 case with a neighbor against neighbor on flooding.
24 Q. Who was suing who?
25 A. I don't -- I don't remember.
88
1 Q. Federal government wasn't a party?
2 A. No.
3 Q. You were just a rain gauge?
4 A. We maintained the weather bureau rain
5 gauge, official weather station. I was summoned with
6 the records to testify how much it rained on certain
7 days.
8 Q. Okay.
9 Did you testify about anything else?
10 A. No.
11 Q. Okay.
12 Ever had your deposition taken such as
13 we're doing today?
14 A. A deposition was taken in the Fort
15 Lauderdale case.
16 Q. Other than the Fort -- that's a personal
17 injury case, correct?
18 A. Right.
19 Q. Other than the Fort Lauderdale personal
20 injury case?
21 A. No.
22 Q. Okay.
23 Have you ever been qualified by a court
24 and accepted as an expert in any area of science?
25 A. No.
89
1 Q. Have you been a party to any
2 administrative hearings in the State of Florida?
3 A. Yes.
4 Q. What are those?
5 A. One dealt with the Struzzula, it was the
6 Struzzula Marsh case against the Water Management
7 District.
8 Q. I think you need to spell that for both
9 the court reporter and --
10 A. I don't know how to spell it.
11 S T R U Z Z U L A, I think.
12 Q. Was your deposition taken in that case?
13 A. No.
14 Q. Okay.
15 Did you testify before the hearing
16 officer?
17 A. Yes.
18 Q. Okay.
19 What other administrative hearings have
20 you participated in?
21 A. One -- two concerning airports or landing
22 strips adjacent to the Refuge.
23 Q. What other administrative hearings?
24 A. I believe that's all.
25 Q. Did the airstrip landing -- the airport
90
1 landing strip cases, did they have any relationship
2 whatsoever to the issues in the SWIM Plan?
3 A. No.
4 Q. What were the issues in those cases?
5 A. Location of private landing strips.
6 Q. And its impact on what?
7 A. Low level aircraft over the Refuge.
8 Q. Okay.
9 How about the Struzzula Marsh, what was
10 the purpose of your testimony, nature of your testimony
11 in that case?
12 A. The Struzzulas applied for a permit for a
13 surface water management permit on their land which was
14 adjacent to the L-40 levee. And my testimony at that
15 time was to the -- I was called by one of the
16 intervenors and testified to the impact that
17 development of that marsh might have on wildlife and on
18 public use on the Refuge, including law enforcement
19 problems.
20 Q. Who was the intervenor that called you?
21 A. Florida Audubon.
22 Q. And when was that hearing?
23 A. I don't recall specifically, Mr. Earl.
24 It's --
25 Q. More than five years ago?
91
1 A. Probably in that neighborhood. More than
2 five years ago. Time seems to fly when we're having
3 fun.
4 Q. Doesn't it?
5 You say you were -- you were not deposed
6 in that case?
7 A. I was not deposed.
8 Q. Okay.
9 Other than what we've talked about, have
10 you ever been deposed?
11 A. No.
12 Q. Did the Struzzulas get their permit
13 property developed?
14 A. No.
15 Q. They did not?
16 A. No.
17 Q. Okay.
18 What is the current status of that
19 property?
20 A. South Florida Water Management District
21 purchased it under the Save Our Rivers Program.
22 Q. Would you describe for me, sir, your
23 educational background?
24 A. As I stated before, I have a BS degree in
25 biology from the University of Southern Mississippi.
92
1 Q. What was your major?
2 A. BS degree in biology.
3 Q. Minor?
4 A. Math and chemistry.
5 Q. Do you have any post-bachelor degrees?
6 A. No.
7 Q. What educational experience have you had
8 since formal education, meaning programs, seminars,
9 that have specific applicability to your testimony in
10 this case?
11 A. Hundreds of seminars and programs.
12 Q. I understand.
13 Have you earned any credit hours at any
14 accredited university or college?
15 A. I think that I earned some credit hours in
16 teaching leadership classes for the extension service
17 in North Carolina. I don't -- I've not formally gone
18 and registered to go to school and earned any hours on
19 my own. I've taken numerous seminars that I didn't
20 earn hours at.
21 Q. What seminars, specifically, would have
22 applicability to your testimony in this case, and will
23 you rely on, if any?
24 A. Probably none.
25 Q. Okay, sir.
93
1 What publications do you have?
2 A. I have -- I'm a joint author on some
3 publications dealing with pesticides in brown pelicans.
4 Q. Would one of those be 2,4-D in the brown
5 pelicans?
6 A. It might. 2,4-D might have been listed in
7 that. It was basically centered around the effect of
8 DDT and DDE.
9 Q. Do you have a list of publications that
10 you have to save some time?
11 A. No, no. I don't.
12 Q. You're co-author?
13 A. Yes.
14 Q. Who is the other author?
15 A. My primary author would be Larry Bluss,
16 B L U S S.
17 Q. When and where was that published, sir?
18 A. I don't -- I don't know where it was
19 published. I have the documents at the office, but I
20 do not have -- I do not recall what publication they
21 were published in. But the era would have been
22 somewhere after 1963 and before 1970.
23 I'm sorry. That's the wrong date. After
24 1973 and before -- somewhere before '75, '76.
25 Q. '73 to '76?
94
1 A. Yeah.
2 Q. And what -- where was it published, do you
3 recall at all?
4 A. I don't recall the document. Seems like
5 one was in Nature -- I just don't recall the names of
6 the documents.
7 Q. And what was the thrust of the
8 publication?
9 A. The publication dealt with DDT residues
10 and brown pelican nesting or eggshell thinning and
11 effects on brown pelicans.
12 Q. From DDT and other pesticides, correct?
13 A. I would assume. I can't recall. It's
14 been a long time since I've looked at those documents.
15 Q. Do you have that at -- you say that you
16 have that in your office?
17 A. I think I have a copy of some of them. I
18 don't know whether I have all of them. There was more
19 than one.
20 Q. Are there a series of publications?
21 A. No. It was just different -- just
22 different publications, different articles relating to
23 the study that was done while I was manager at Cape
24 Romain.
25 Q. Is that different articles based on the
95
1 same study?
2 A. (Shakes head up and down.)
3 I forget. Yes.
4 MR. EARL: Thank you.
5 Can we make that available, Counsel?
6 Would that be possible?
7 MS. PONZOLI: I can't believe we haven't
8 already made them available. One of the
9 requests must have missed something.
10 THE WITNESS: They're probably buried in a
11 box of my personal effects. That's not part of
12 station records.
13 MS. PONZOLI: We'll make them available to
14 you, Mr. Earl.
15 MR. EARL: If they're available, can he go
16 get them? I mean if there's no -- can we have
17 those tomorrow?
18 MS. PONZOLI: I don't know. I don't know
19 if he can go back to the Refuge tonight, Mr.
20 Earl. I'll speak to him over lunch and see what
21 that entails.
22 BY MR. EARL:
23 Q. Is it possible, Mr. Neely, to go back and
24 get those after we get done here?
25 A. It depends on what time we get through.
96
1 Q. Some reason you can't, just convenience?
2 A. Well, other than convenience and other
3 than the fact that my riding with my wife in the
4 afternoon means I go home first and then go to the
5 Refuge and back.
6 Q. Okay.
7 A. And then as to whether I can find them in
8 boxes of my personal effects at the Refuge.
9 Q. What other articles have you published --
10 we appreciate that. Obviously we'll take it up the
11 next time this deposition goes forward, but --
12 MS. PONZOLI: I don't know. You presume
13 the depo could go forward, Mr. Earl.
14 THE WITNESS: I'm not the principal author
15 on them. As I said I'm --
16 BY MR. EARL:
17 Q. Okay.
18 A. -- joint author, as manager of the Refuge
19 at the time.
20 Q. I understand.
21 A. I don't know of any other -- I can't
22 recall any other articles that I might be -- I'm not
23 the principal author on any articles that I know of --
24 Q. Okay.
25 A. -- of a scientific nature.
97
1 Q. Other than being principal author, and
2 other than the Cape Romain brown pelican and pesticide
3 study, did -- have you -- are you an author of any
4 other scientific or related publications?
5 A. I just stated I'm not principal author of
6 any scientific publication that I can recall.
7 Q. Okay.
8 My question, though, sir, are you author
9 listed, not a principal author, are you listed on any
10 other publication?
11 A. Not that I can recall, Mr. Earl. I've
12 been working for the government 30 years. And I don't
13 think that I'm author of any other publications.
14 However, sometimes the author, principal authors will
15 include co-authors that I might not remember in my very
16 earlier years. I just do not remember.
17 Q. Were you personally involved in any
18 pesticide studies that we haven't talked about?
19 A. No.
20 Q. You have no articles with a refereed
21 journal?
22 A. I have no idea.
23 (Thereupon, a discussion was held off the
24 record.)
25
98
1 BY MR. EARL:
2 Q. You graduated, sir, from high school, what
3 year?
4 A. 1955.
5 Q. And what did you do after high school?
6 A. Worked as a -- worked for an oil
7 exploration company.
8 Q. Surveyor for?
9 A. Well, I was --
10 Q. Seismograph it says on the resume.
11 A. Yeah. That's what I wound up as, a
12 surveyor. I didn't start out as a surveyor.
13 Q. What did you start out as, what title?
14 A. As a technical name, seismometer placement
15 worker.
16 Q. Okay.
17 A. And it was a laborer-type job and I
18 progressed up through the ranks to surveyor.
19 Q. And you held that position from '55 to
20 '63?
21 A. No. That was the time that I worked for
22 the company.
23 Q. Okay.
24 Take me through your evolution then,
25 please.
99
1 A. Okay.
2 I graduated high school in '55. And I
3 worked briefly for a road construction company in
4 Mississippi where I was born, or where my home was. I
5 traveled to Texas and got a job with Western
6 Geophysical Company.
7 Q. When was that, '55?
8 A. In -- yeah, I believe it would have been
9 late '55. I can't quite remember those dates exact. I
10 worked for Western Geophysical for '56, '57 and '58.
11 And since it was an oil exploring company, we moved
12 quite extensively, sometimes several times a year. And
13 I was sent to Alaska in 1958.
14 Q. Still for Western Geophysical Company?
15 A. Yes. Worked in Alaska. Prior to that I
16 had worked in Colorado, Wyoming, Montana, Texas,
17 Q. Same company, same job?
18 A. Same company. Utah. All of those places
19 prior to going to Alaska, and after I went to Alaska.
20 I worked up there for -- from February until about
21 August.
22 Q. Of '58?
23 A. Of '58. I was returned home to
24 Mississippi and was -- and went, did my two years of
25 active duty. I was -- I was in the Naval Reserves
100
1 since the eleventh grade, and I did two years of active
2 duty in the Navy from late '58 to early '61.
3 Q. What did you do in the Navy, what MOS?
4 A. I was a yeoman. And I worked for the
5 gunnery officer in the gunnery department.
6 Q. Okay.
7 A. Then after getting out I went back to work
8 for Western Geophysical and worked in Vernon, Utah and
9 Ogallala, Nebraska, and then Fort Stockton, Texas, and
10 several other places. After Fort Stockton we moved to
11 Carlsbad and to Topeka and just transferred all around
12 until I went back to school in 1963.
13 Q. During any of your experience from '55,
14 including the Navy, until '63, did you have any work
15 involving wetlands, wetlands analysis, anything that
16 would be significant in terms of your opinion or --
17 A. No.
18 Q. -- testimony in this case?
19 A. I worked on some wetlands for an oil
20 company. We had to take special considerations for
21 them.
22 Q. But did you do any analysis of wetland
23 vegetation?
24 A. No.
25 Q. You weren't a biologist?
101
1 A. No.
2 Q. Okay.
3 When did you actually start at Southern
4 Mississippi?
5 A. In the fall of '63, if I recall right.
6 Q. Your resume says you received your BS
7 degree in biology from Southern Mississippi in '65.
8 A. Yeah, May of '65 I think it was.
9 Q. So did you go full-time?
10 A. The first year I went around -- it was on
11 a quarter system; and what really prompted that was I
12 had gotten married and -- about a year before that, a
13 year and a half. And when we moved six times in four
14 different states, my wife thought I ought to get
15 another career. And I went back to school. She
16 volunteered to work. I went back to school, and I went
17 three-quarters in '63, '64. Then I went back to work
18 for the Western Geophysical during the summer of '64.
19 Then I went straight through until I graduated.
20 Q. Okay.
21 But -- which was in '60 --
22 A. Late May of '65, approximately.
23 Q. Okay.
24 Then what did you do?
25 A. Went to work for the Fish and Wildlife
102
1 Service on June 1st, 1965.
2 Q. And what position and where?
3 A. As a refuge manager trainee at Savannah
4 National Wildlife Refuge.
5 Q. How long did that last?
6 A. One year. And I was promoted to refuge --
7 assistant refuge manager. I was there another year.
8 And then I was transferred in '67 to assistant refuge
9 manager at Mattamuskeet.
10 Q. So for one year you were training there?
11 A. Um-hum.
12 Q. Then in '66 you were appointed assistant
13 refuge manager?
14 A. Yeah, I got a promotion at Savannah.
15 Q. At Savannah. Okay.
16 And then you got your next position where?
17 A. In '67, almost a year later, mid '67 I was
18 transferred and promoted to Mattamuskeet National
19 Wildlife Refuge.
20 Q. That's in North Carolina; is that right?
21 A. Um-hum.
22 Q. Is that near the bombing range up there?
23 A. Near Avon Park -- not Avon Park, but out
24 near the area to the eastern part. It's near there,
25 but it's not adjacent to it.
103
1 Q. Is that adjacent to First Colony Farms and
2 the Prulean area out?
3 A. I don't know whether it's adjacent to it.
4 It's in close proximity. I remember the First Colony,
5 Prulean --
6 Q. P R U L E N A?
7 A. E A N, Prulean, P R U L E A N.
8 Q. And were you refuge manager?
9 A. I was assistant manager.
10 Q. Assistant?
11 A. Primarily assistant refuge manager.
12 Q. How big a refuge was that?
13 A. Oh, I don't remember. Something like
14 forty to fifty thousand acres centered around Lake
15 Mattamuskeet.
16 Q. How long did you stay there, sir?
17 A. Until February of '71.
18 Q. Did you get promoted there?
19 A. I was promoted while I was there, and I
20 got a lateral transfer in February of '71 to the --
21 what's known as project leader, or refuge manager in
22 charge at Cape Romain in February of 1971.
23 (Thereupon, a discussion was held off the
24 record.)
25
104
1 BY MR. EARL:
2 Q. My last note says February of '71 you
3 moved to --
4 A. To Cape Romain National Wildlife Refuge.
5 Q. And that is in South Carolina?
6 A. Yeah, near Charleston, just north of
7 Charleston.
8 Q. Neither of those refuges that you were
9 posted to have northern Everglades vegetation, do they?
10 A. No.
11 Q. Are they tropical?
12 A. No.
13 Q. Do they have sawgrass up there?
14 A. No.
15 Q. Do they have cattails up there?
16 A. Yes.
17 Q. Okay.
18 And how long were you at Cape Romain?
19 A. For three and a half years. I think I --
20 I moved from there in '73. It seems like August of
21 '73.
22 Q. Where did you go, sir?
23 A. I went to a refuge called Peedee,
24 P E E D E E, in North Carolina. It's just west of
25 Charlotte, just -- or just east of Charlotte. I'm
105
1 sorry.
2 Q. And again, that didn't have northern
3 Everglades habitat, did it?
4 A. No.
5 Q. What is the nature of that refuge?
6 A. It was a river -- it straddled the Great
7 Peedee River bottomland hardwood-type area.
8 Q. And could you describe generally the
9 nature of Cape Romain?
10 A. It was a barrier island situation.
11 Q. And how about the Malla --
12 A. Mattamuskeet.
13 Q. Mattamuskeet?
14 A. Mattamuskeet, a 40,000 acre lake
15 surrounded by marsh with agricultural runoff.
16 Q. Oh. Throw that one -- throw that one in.
17 What kind of agriculture was there?
18 A. Soybeans and corn, basically. Some --
19 some vegetable crops.
20 Q. No sugar cane, was there?
21 A. Other than garden variety.
22 Q. What do you mean by garden variety?
23 A. Some people grow sugar cane in their
24 gardens for personal use.
25 Q. But it wasn't a truck crop --
106
1 A. Not --
2 Q. -- that they have up there. Okay.
3 And what was the nutrient of interest up
4 there?
5 A. I don't know. I just know that we had
6 agricultural runoff. I didn't mention nutrients, just
7 runoff from agricultural land into Lake Mattamuskeet.
8 And we had cattail in profuse numbers around the
9 perimeter.
10 Q. Were those attributed to the agricultural
11 runoff?
12 A. I would -- I would have to assume they
13 were. They were never documented. There was never a
14 study done on that.
15 Q. How many acres did you have up there?
16 A. Of cattail?
17 Q. (Shakes head up and down.)
18 A. I don't remember. It's been -- we're
19 talking quite -- quite a bit of time ago, early stage
20 of my career. I couldn't even venture a guess of how
21 much was around the edges of that 40,000 acre lake.
22 Q. Neither you or anyone else up there did
23 studies, did you?
24 A. Un-hum. No.
25 Q. Was that perceived at the time of the --
107
1 were the cattail perceived a matter of concern at the
2 time?
3 A. Yes, they were.
4 Q. By whom, you?
5 A. By the refuge manager and biologist.
6 Q. Was there a program to eradicate them?
7 A. We did prescribed burning and chemical
8 control, and water -- let's see. Chemical control and
9 prescribed burning. And then we had impoundments that
10 we worked that in.
11 Q. What kind of impoundments?
12 A. Dikes built around the edge of the lake
13 that segregated off a section of marsh that we
14 controlled vegetation in through fire and chemicals.
15 Q. And subject of the control was the
16 cattails?
17 A. We did control -- try to control some of
18 the cattail.
19 Q. Was there a delineated cattail control
20 program there?
21 A. Not a delineated as we have for Melaleuca
22 or anything, no. We also had a control program for
23 Johnson grass, but I mean it was in the agricultural
24 part.
25 Q. Did the management of the -- of the Refuge
108
1 have any kind of cattail eradication or control
2 program, was that specific category of --
3 A. No.
4 Q. Were you responsible for the control of
5 cattail at this Refuge?
6 A. No.
7 Q. And what specific experience or studies
8 that you personally undertook do you rely on to draw
9 your conclusions about the cattails in Loxahatchee,
10 any?
11 A. (No response.)
12 Q. Let's start over.
13 MS. PONZOLI: Yeah.
14 THE WITNESS: I was in North Carolina when
15 you asked that question.
16 BY MR. EARL:
17 Q. What, if any, studies and experiences in
18 North Carolina that you specifically undertook or were
19 responsible for, do you rely on to form your
20 conclusions or opinions regarding the causation of
21 cattails in Loxahatchee?
22 A. None.
23 Q. Okay.
24 And would your answer be the same as to
25 the other refuges, Peedee and other refuges you work
109
1 at, Cape Romain?
2 MS. PONZOLI: Object to the form.
3 MR. EARL: I'm just trying to save time,
4 Counsel.
5 MS. PONZOLI: Is it just to cattails that
6 you're referring to?
7 MR. EARL: Yes.
8 THE WITNESS: None.
9 BY MR. EARL:
10 Q. Okay.
11 What happened in August of '73? You went
12 to Peedee Refuge?
13 A. Yes.
14 Q. As refuge manager?
15 A. Yes.
16 Q. All right, sir.
17 What happened next in your career?
18 A. After I left Peedee in '76, I was there
19 about two years, maybe a little longer, and I was
20 transferred to Washington to the central office in
21 Washington, D.C.
22 Q. In '76?
23 A. Um-hum.
24 Q. And what was your position when you went
25 to Washington?
110
1 A. I was a staff person listed as -- I
2 believe I was still in the same classification, refuge
3 manager, but I was a staff person working in the
4 planning department for the Division of National
5 Wildlife Refuges.
6 Q. What was your function?
7 A. At that time I was working on wilderness
8 proposals that were being submitted to the Senate.
9 (Thereupon, a discussion was held off the
10 record.)
11 BY MR. EARL:
12 Q. And were you working Alaskan wilderness,
13 was that idea?
14 A. All wilderness, the wilderness areas that
15 were still pending. Several had already been passed by
16 the Congress, and there were some -- some wilderness
17 areas that had to be presented to the Senate side.
18 Q. And what specifically did you do, staff
19 papers and analysis?
20 A. Staff presentations to the Senate, working
21 up maps of wilderness areas based on recommendations
22 from the refuges and from the staff in Washington.
23 Q. How long did you do this?
24 A. For about a year.
25 Q. '76 to '77?
111
1 A. Yeah.
2 Q. Any specific experiences or studies there
3 that you rely on so you could draw your conclusion
4 about Loxahatchee vegetative changes?
5 A. No.
6 Q. Okay.
7 What was your next position?
8 A. I was transferred to -- as deputy chief of
9 the Alaska native claims office under the director's
10 office, director of Fish and Wildlife Service.
11 Q. '77 until when?
12 A. Until I left in March of '81, although I
13 was chief of that office for the last year.
14 Q. What did you do in that position, sir?
15 A. Prepared proposals for consideration by
16 Congress for establishment of new refuges in Alaska.
17 Q. Any -- go ahead.
18 A. Just worked on the Alaska land issue in
19 general.
20 Q. During this period, '77 to '81, did you do
21 any studies, analysis, which you would rely to form
22 your conclusions regarding the Loxahatchee National
23 Wildlife Refuge?
24 MS. PONZOLI: Object to the form.
25 THE WITNESS: No.
112
1 BY MR. EARL:
2 Q. Okay.
3 And then March of '81 you arrived at
4 Loxahatchee National Wildlife Refuge, correct?
5 A. That's correct.
6 Q. Your Washington stint was primarily
7 administrative; is that correct? If not exclusively?
8 A. I -- in administrative.
9 Q. Would -- well, did you do any field work?
10 A. No. Oh, well, I -- I made trips to the
11 field to evaluate our -- to become familiar with refuge
12 areas and to orient other Washington staffers to the
13 areas and problems they may have. I worked with refuge
14 managers, direct.
15 Q. But your time was primarily office-based;
16 is that true?
17 A. Primarily, yes.
18 Q. What is Dr. Maffei's -- strike that.
19 Do you have an assistant refuge manager?
20 A. Yes.
21 Q. Who is that?
22 A. My deputy is named Allan Flock.
23 Q. You already mentioned him.
24 Could you describe for me the career path
25 at Fish and Wildlife Service? Is Dr. Maffei on a
113
1 different one than you were on in career? Is there
2 scientific --
3 A. Yeah. There's a biologist -- he's a
4 biologist, and I'm refuge manager. They're different
5 classifications.
6 Q. Do biologists become refuge managers? How
7 does that work, progress?
8 A. They could. They could, if they applied
9 for the jobs.
10 Q. Do they have to go to manager's school as
11 you did?
12 A. Not really. They just have to have
13 educational requirements.
14 I missed mentioning one of, on pathway, my
15 classification was changed from refuge manager to Fish
16 and Wildlife administrator. I think that's the correct
17 title.
18 Q. Now, your resume talks about following the
19 federal lawsuit, as a new dimension to management
20 responsibilities he was promoted?
21 A. I beg your pardon?
22 Q. I'm reading from your resume. Was he
23 promoted?
24 A. Yeah, so I was --
25 Q. Promoted to GM?
114
1 A. Oh, yeah.
2 Q. It says so here.
3 A. Yeah. Okay.
4 I'm with you. I was reading the top line.
5 Yes, I was given a promotion July of '91.
6 Q. Because of your work on the federal
7 lawsuit?
8 A. Because of added responsibilities to the
9 Refuge in general, including the lawsuit.
10 Q. When -- when were those responsibilities
11 added, and what were they?
12 A. They were gradually added from the time I
13 came to Loxahatchee.
14 Q. Describe that evolution for me, if you
15 would.
16 A. Well --
17 Q. You came in March of '81?
18 A. Right. And some of the programs, there
19 was not a very extensive public use program at
20 Loxahatchee. And shortly after I arrived, they
21 completed a visitors' center. We did have a concession
22 going at the time. Completion of visitors' center,
23 increased public use responsibilities, increase in
24 staffing and public use at Hobe Sound increased my
25 responsibilities.
115
1 The activities that we carried, management
2 activities, changed to some extent as to what we were
3 trying to accomplish in the impoundments around the
4 Refuge. There was several construction projects that
5 were underway. And the addition of the -- by the
6 Service of a biological thrust added a dimension to it.
7 The filing of the lawsuit added a major dimension and
8 increased responsibilities. I was designated by the
9 regional director as his representative on this -- on
10 this issue.
11 Q. On what issue?
12 A. On Everglades -- on the lawsuit.
13 Q. You serve a similar capacity in regards to
14 the ongoing proceeding, administrative proceedings?
15 A. Yes.
16 Q. Any other increased responsibilities that
17 didn't exist when you arrived?
18 A. Melaleuca control program that we have
19 going is an additional responsibility.
20 Q. Okay.
21 A. Various construction projects that
22 continue to occur, either be finalized or initiated,
23 underground storage tank construction; involvement with
24 Water Management District on -- as a member of the
25 Lower East Coast Water Supply Advisory Committee, I
116
1 believe it is, and Palm Beach County Water Supply
2 Advisory Committee and C-51 advisory committee, and
3 probably others that I can't recall right offhand.
4 Q. Now, you are still on the C-51 advisory
5 committee?
6 A. Yes, I am.
7 Q. You said that the addition by the Service
8 of a biological thrust added responsibility. What do
9 you mean by that?
10 A. In the more -- more emphasis on biology in
11 general in the Service, and that was one of the reasons
12 we hired Dr. Maffei was to have a qualified person to
13 run the biological program in Loxahatchee.
14 They biologist that was there had been
15 transferred, the Service, in general, wanted to get
16 more biological information on all national wildlife
17 refuges.
18 Q. Do you understand you're also appearing
19 today as a designated witness on behalf of the
20 Department of the Interior?
21 A. Yes.
22 Q. What categories or topics have you been
23 designated to testify about? There are several, as I
24 understand, designated representatives. What areas are
25 you designated to testify about?
117
1 MS. PONZOLI: You may -- he may not
2 understand the question, Mr. Earl.
3 MR. EARL: I'm just trying to save
4 everyone time. There's obviously --
5 MS. PONZOLI: I understand.
6 THE WITNESS: I understand too, but I
7 don't understand what you want. I can't answer
8 your question.
9 MR. EARL: All right.
10 MS. PONZOLI: Mr. Earl, I think that you
11 should be aware that the United States filed a
12 fairly substantial motion for protective order
13 on those issues. And we had a hearing, and it's
14 my understanding that you're fairly limited in
15 what you can ask a designated representative at
16 this deposition.
17 Be that as it may, I have a transcript.
18 It's whatever it says it is. Mr. Neely is a
19 policy person for Interior and did participate
20 in the settlement agreement that has been
21 incorporated into the SWIM Plan. And while he
22 is not the technical person, who would be Dr.
23 Maffei, as I well imagine you're aware, he would
24 have been the policy person who would have made
25 the decisions to approve the various elements
118
1 that you are allowed to ask about by the hearing
2 officer's order. Those things that pertain to
3 the Park, obviously he has no policy input on.
4 Those things that pertained to the Refuge he did
5 have. And so you -- you are free to ask him
6 about those issues that pertain to the Refuge.
7 And I believe that you have the documents
8 that you've obtained through your various
9 information requests that would have been called
10 up by such a designated representative
11 designation.
12 MR. EARL: Well, I don't believe we have.
13 I believe those are the subject of a lawsuit in
14 federal court where several boxes are not being
15 provided. But the witness did bring a box --
16 BY MR. EARL:
17 Q. You brought a box with you, sir?
18 A. Yes.
19 Q. Okay.
20 What is in that box?
21 MS. PONZOLI: Well, Mr. Earl, I don't know
22 what is in that box. And he's certainly free to
23 answer you, but I would not want to represent to
24 you that what's in the box responds to the
25 designated representative --
119
1 MR. EARL: Well, I'm not implying -- I'm
2 just asking him.
3 MS. PONZOLI: Okay.
4 We're flipping back and forth here.
5 MR. EARL: Right.
6 THE WITNESS: Somewhere I -- something
7 came up about the request to bring the Refuge
8 management plans. I don't remember exactly what
9 document that was in.
10 MS. PONZOLI: Mr. Richard's letter of
11 March 25, 1993 requested that you bring those
12 management plans, and we have complied with your
13 the request. Whether he's relying on them is a
14 separate issue.
15 THE WITNESS: And also, in response to
16 some of the requests for maps, I found some in
17 the concession file that had nothing really to
18 do with the water quality lawsuit, but they are
19 maps and there are concession or designated
20 areas for concession operation and subleases by
21 the Game and Fish and boundary adjustments with
22 the Water Management District dealing with the
23 concession. And the role map is just a
24 designated -- it's a map that is used by our
25 realty department, designated land tracts on the
120
1 Refuge.
2 MS. PONZOLI: These are original copies,
3 Mr. Earl. I would only allow you to make --
4 like tag the ones you want or Mr. Green could
5 tag the ones he wishes and we would have to have
6 copies made.
7 MR. EARL: Well, why don't we, at this
8 time, if you can, let's bring the box so we can
9 identify what's in there. Then we can decide
10 what we need to do. Okay.
11 THE WITNESS: The first thing he asked for
12 was the management plans.
13 MR. EARL: Okay.
14 The first --
15 MS. PONZOLI: You should be aware these --
16 some of these have been produced to you before
17 because they have Bate --
18 THE WITNESS: All of them have been
19 produced before. They only -- you have parts of
20 them --
21 MS. PONZOLI: You have parts of them,
22 because they're Bate-numbered by us.
23 MR. EARL: Okay.
24 We have the Loxahatchee National Wildlife
25 Refuge Plan, two volumes. These are
121
1 different --
2 THE WITNESS: Different volumes.
3 MR. EARL: Yes. Okay.
4 Those are the first two items produced.
5 My suggestion would be, Counsel, that we
6 will look at these at lunch. Then we can decide
7 what we need to do.
8 MS. PONZOLI: Well, I'd like to go to
9 lunch. I have to be here when you go through,
10 we have to go to lunch, and then come back and
11 do it. I can't leave my original documents
12 alone, and I don't have an assistant with me,
13 so --
14 MR. EARL: Okay.
15 THE WITNESS: These are dealing with
16 boundary adjustment pending with the District.
17 Pending proposals for boundary adjustment.
18 MS. PONZOLI: Were they called up by any
19 particular request, Mr. Neely, or was this
20 called up by the fact that a public records
21 request was made to District of the boundary --
22 THE WITNESS: It appears they could be
23 included in general category of anything dealing
24 with the boundaries of Loxahatchee. It was a
25 very broad category.
122
1 MS. PONZOLI: Okay.
2 BY MR. EARL:
3 Q. Okay, sir.
4 The next couple of documents we have
5 are -- are what, sir? You just handed me a --
6 MS. PONZOLI: Those are Refuge boundary --
7 BY MR. EARL:
8 Q. Those?
9 A. Those are pending proposals for boundary
10 adjustments at Loxahatchee.
11 Q. Okay.
12 A. Dealing with the concession and other
13 administrative changes.
14 Q. Is this all pending proposals for boundary
15 adjustments included in here, sir?
16 A. Yes.
17 Q. Okay.
18 What is the next category there?
19 A. A category dealing strictly with
20 concession and maps associated, and the reason I
21 brought maps associated with the concession operation.
22 And ...
23 Q. By concession operation, what do you refer
24 to, sir?
25 A. We have --
123
1 Q. Hillsboro Canal?
2 A. No -- yes. The Hillsboro concession
3 operation which went out of business in May of '90.
4 And that is plan -- that's some of -- that is documents
5 that dealt with the -- that concession operation. They
6 do deal with boundaries. They do reference Refuge
7 boundaries.
8 Q. Okay.
9 What is the next category?
10 A. Next category is cooperative license lease
11 agreement between the Refuge or between the Fish and
12 Wildlife Service and Water Management District and
13 cooperative agreement between the Fish and Wildlife
14 Service and Game and Fish Commission that spells out
15 Refuge boundaries, which you already got.
16 Q. Okay.
17 A. It's really tattered, but nonetheless,
18 it's there.
19 Q. And that consists of two files. Okay.
20 And what is next, sir?
21 A. Let me separate out, if I can. It's --
22 this is just a package of miscellaneous maps that we
23 used for reference, there's probably some repetitive
24 maps in there. It's a general map that's been pieced
25 together dealing with the Refuge boundary.
124
1 Q. General map used by who for reference?
2 A. By the staff, and sometimes when we pull
3 in other agents for something. It's a common reference
4 map that we can orient people to real quick, along with
5 some copies of aerial photos of -- I can't tell whether
6 that's L-40 or the L-7.
7 Q. Okay.
8 Is that a section map?
9 A. That's -- that's that same map.
10 Q. Okay.
11 They are?
12 A. Yeah, it's a little different. Yeah,
13 that's the reduction probably of this map right here,
14 and this map.
15 MR. GREEN: May I look at those while
16 you're doing that?
17 Thank you.
18 THE WITNESS: And yeah, that's what that
19 is.
20 BY MR. EARL:
21 Q. These are full scale drawings?
22 A. This is a map called -- it's a -- it's
23 classified as B map, I believe a B map, by a realty
24 office that shows the -- and it's an old one too. I
25 can see it's not even up-to-date. No, it is -- it is
125
1 up-to-date too. Our realty map, and then this is a
2 larger scale of same.
3 Q. But you said a B map, sir. What is a B
4 map?
5 A. Yeah. I believe this is just a
6 designation that -- our designation that our realty
7 office puts on it.
8 Q. What does B stand for?
9 A. I have no idea.
10 Q. Is there an A map?
11 A. I don't know.
12 Q. Okay.
13 A. A map, the letter size copy, the letter
14 size version of this, I don't know. And there -- these
15 two pieces make that up whole you just had.
16 Q. What is this one, sir?
17 A. (No response.)
18 Q. A different --
19 A. Well, it's a bigger map, yeah. It's just
20 a bigger size of this. That -- this just shows
21 designated fee title and lease areas. That's the upper
22 half of that.
23 Q. Okay.
24 Those are the B maps and the other scale
25 maps.
126
1 Q. What is the next category, sir?
2 A. Well, this is just a highlighted section
3 of L-39 in various methods, various colors.
4 Highlighted L-39 section.
5 Q. The L-39 is highlighted?
6 A. Yeah. The general area of the L-39
7 boundary area.
8 Q. Any reason for this particular area to be
9 highlighted?
10 A. No. It's a concessionary area, and one of
11 the areas that we're under -- that we're considering
12 this, that other package for boundary adjustments with
13 the Water Management District for the facility, the
14 concession.
15 Q. Is there no concession now, rating down
16 there?
17 A. No, there's no concession rating now.
18 When that concession went out of business in May, it --
19 we, the department, put a freeze on new concessions,
20 and we did not initiate a new one, and we have not yet.
21 This set of documents right here is a set of documents
22 that you've been furnished before from our realty
23 office. These are the legal -- the legal documents
24 that describe the fee title areas. And I think
25 you've --
127
1 Q. That's the last --
2 A. Yes.
3 Q. That's the last group of category of
4 documents?
5 A. Yeah, that's the last thing in the box.
6 (Thereupon, a luncheon recess was taken at
7 12:40 to 1:40 p.m.)
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
128
1 Division of Administrative Hearings
2 Department of Administration, State of Florida
3 SUGAR CANE GROWERS COOPERATIVE)
OF FLORIDA; ROTH FARMS, INC.; )
4 and WEDGEWORTH FARMS, INC., )
Petitioners, )
5 V ) DOAH
SOUTH FLORIDA WATER MANAGEMENT) Case 92-3038
6 DISTRICT, an agency of the )
State of Florida, et al., )
7 _____________Respondents._____)
) VOLUME II
8 FLORIDA SUGAR CANE LEAGUE, )
INC.; UNITED STATES SUGAR )
9 CORPORATION; and NEW HOPE )
SOUTH, INC., )
10 Petitioners, )
V ) DOAH
11 SOUTH FLORIDA WATER MANAGEMENT) Case 92-3039
DISTRICT, an agency of the )
12 State of Florida, et al., )
_____________Respondents._____)
13 )
FLORIDA FRUIT AND VEGETABLE )
14 ASSOCIATION; LEWIS POPE FARMS;)
W.E. SCHLECHTER & SONS, INC., )
15 and HUNDLEY FARMS, INC., )
Petitioners, )
16 V ) DOAH
SOUTH FLORIDA WATER MANAGEMENT) Case 92-3040
17 DISTRICT, an agency of the )
State of Florida, et al., )
18 _____________Respondents._____)
19
Deposition of Burkett Neely
20
Taken before Robin L. Merker, Court
21 Reporter and Notary Public in and for the State of
Florida at large, pursuant to notice of taking
22 deposition filed by the Petitioners in the above cause.
23 - - -
Monday, March 29, 1993
24 319 Clematis Street
West Palm Beach, Florida 33401
25 1:40 - 4:45 p.m.
129
1 APPEARANCES:
2 On behalf of the Petitioners Florida Sugar
Cane League, Inc., United States Sugar Corp,
3 and New Hope, Inc.:
4 Peeples, Earl & Blank, P.A.
One Biscayne Tower, Suite 3636
5 2 South Biscayne Boulevard
Miami, Florida 33131
6 BY: WILLIAM L. EARL ESQUIRE
7 On behalf of the Respondent SFWMD:
8 Simmons & Solomon
10020 South Federal Highway
9 Port St. Lucie, Florida 34952
BY: DIANNE MISIAK, ESQUIRE
10
On behalf of the Intervenor, United States of
11 America:
12 SUZAN HILL PONZOLI, ESQUIRE
Assistant United States Attorney
13 155 South Miami Avenue
Suite 600
14 Miami, Florida 33130-1693
15 On behalf of the Petitioner, Sugar Cane Growers:
16 Hopping, Boyd, Green & Sams
123 South Calhoun Street
17 P.O. Box 6526
Tallahassee, Florida 32314
18 BY: WILLIAM GREEN, ESQUIRE
19 ALSO PRESENT:
20 JOSEPH RICHARDS
21
22
23
24
25
130
1 P R O C E E D I N G S
2
3 - - -
4
5 (Thereupon, the document was marked
6 Plaintiff's Exb. No. 1 for Identification.)
7 DIRECT (Burkett Neely) (Continued)
8 BY MR. EARL:
9 Q. I hand you now, sir, what has been marked
10 as Exhibit 1 to your deposition.
11 A. Okay.
12 Q. Can you tell me what that -- what that is,
13 please?
14 A. That's the briefing booklet that was put
15 together for some briefing, I don't know which one. I
16 don't remember which one. Around July of '91.
17 Q. And did you review this as part of the --
18 you were familiar with it as --
19 A. Yes.
20 Q. -- a participant?
21 A. Yes.
22 Q. I direct your attention to the second page
23 inside the cover there, mission statement.
24 A. Okay.
25 Q. Is that the -- is that formal mission
131
1 statement for the Loxahatchee Refuge?
2 A. Yes, that's a set of objectives that
3 have -- that were developed. And I -- this is the
4 mission statement. I would assume this is the -- the
5 formal mission statement. It's printed right here.
6 Q. What is a mission statement?
7 A. What is a mission statement?
8 Q. Um-hum.
9 A. It -- I think it states what the -- what
10 the objectives or the mission of the project is.
11 Q. And this -- does this accurately describe
12 the mission of Loxahatchee Refuge, as you understand
13 it?
14 A. I think it accurately describes it.
15 Q. You think it does?
16 A. Yes.
17 Q. What is the northern Everglades habitat as
18 you understand it, as opposed to the rest of the
19 Everglades habitat?
20 A. Northern Everglades as opposed to, quote,
21 southern or even middle Everglades is the -- that --
22 it's an area that's has peat deeper than the other
23 areas. And I'm speaking of the Water Conservation Area
24 and Everglades National Park.
25 The fact that we have tree islands as
132
1 opposed to hammocks, there's no rock outcropping in the
2 northern Everglades. The layer of peat varies in depth
3 considerably more than it does in Everglades National
4 Park. The vegetation is somewhat different in that
5 there are no hardwood hammock or tropical hammocks in
6 Loxahatchee inside of Area 1. The peat. The tree
7 islands are formed in a different manner, as I said,
8 than Everglades National Park.
9 Q. Anything else that distinguishes it?
10 A. It was probably wetter than the lower
11 Everglades, I would assume, based on historical
12 documents that I've read.
13 Q. What are those documents?
14 A. A series of historical documents from the
15 Broward County Library that describe -- and documents
16 that were available. I don't remember the specific
17 titles to them. I can go back to them, but I can't
18 recall the specific title of various journals by people
19 that transversed the area describing what they saw and
20 water depths.
21 Q. Am I correct in understanding that
22 Loxahatchee was originally established as part of the
23 migratory bird program?
24 A. It was established under the authority of
25 the Migratory Bird Conservation Act.
133
1 Q. Was that the initial mission?
2 A. (No response.)
3 Q. Initially it was to have been directed
4 toward the Migratory Bird Program?
5 A. It was established under the Migratory
6 Bird Conversation Act for the protection of migrating
7 birds, yes.
8 Q. And is this -- am I correct in
9 understanding the mission has expanded since then?
10 A. Because of the Endangered Species Act is
11 one expansion of it.
12 Q. Okay.
13 What endangered species do you have in
14 Loxahatchee?
15 A. The Everglades kite. We've had the
16 American alligator, which was once endangered, now
17 classified as threatened.
18 Q. Others?
19 A. There are bald eagles. We've seen
20 peregrine falcons. There's wood storks.
21 Q. Peregrine falcons resident?
22 A. No, transient. Eagles, transient.
23 Q. Okay.
24 A. Wood storks resident.
25 Q. Okay.
134
1 Any others?
2 A. There's -- no, that's not listed yet. No,
3 no others that I can recall offhand.
4 Q. What's going to be listed? Is there
5 something pending?
6 A. There's a plant, the curly leaf fern.
7 That's what we call category -- I believe it's Category
8 3. That's under consideration.
9 So several other species of concern by the
10 State of Florida, the purple gallinule, roseate
11 spoonbill, several other species, white ibis and any
12 number of other species of migratory birds.
13 Q. What, if any, specific impact have the EAA
14 nutrients had on endangered species then, to your
15 knowledge?
16 A. Nutrient directly to the endangered
17 species?
18 Q. Directly, let's start off directly, yes.
19 A. Elimination of habitat by the trend,
20 changes of vegetation. And elimination of the food
21 base by covering up open water areas by different types
22 of vegetation.
23 Q. Are those the two direct effects?
24 A. I think these are two direct.
25 Q. Any others you're aware of?
135
1 A. There's been some fish kills documented on
2 the Refuge in the past through certain pump stations,
3 or in the vicinity of certain pump stations.
4 Q. You tie them to nutrients?
5 A. I tie them to water quality, which --
6 Q. The question relates to nutrients.
7 A. No, I -- I -- yes I'll tie -- I would tie
8 them to whatever is -- whatever is coming in in the
9 water with nutrients, and whatever else might be coming
10 in.
11 Q. Are you telling me fish kills resulted
12 from nutrients in water?
13 MS. PONZOLI: Object to the form. It's
14 asked and answered.
15 THE WITNESS: I can't directly say that
16 nutrients were the cause.
17 BY MR. EARL:
18 Q. Okay.
19 What can you say was the cause?
20 A. The quality of water coming in.
21 Q. What parameter of the water quality
22 caused --
23 A. What parameters? I don't know what
24 parameters caused the fish kill. There were small fish
25 kills. They did not warrant the expense of research,
136
1 because we knew exactly when they occurred and where
2 they occurred.
3 Q. Were those related to low water levels
4 also?
5 A. (No response.)
6 Q. Any of the fish kills related to low water
7 levels?
8 A. Low water levels where?
9 Q. Anywhere it --
10 A. In the Refuge?
11 Q. Yeah.
12 A. Not that I know of.
13 Q. Okay.
14 Have low water levels ever been cause of
15 fish kills?
16 A. Extreme low water levels have resulted in
17 some fish kills.
18 Q. How often does that happen?
19 A. Numbers of times, probably less than a
20 dozen or so that we know of.
21 Q. And what would be the scale of these
22 kills?
23 A. In what form?
24 Q. Well, aerial extent, number of fish, how
25 much you would --
137
1 A. A mile or so. The canal section maybe a
2 little further. It's hard to tell, because when those
3 fish die, they drift. Numbers probably in -- in low
4 thousands, because -- because you can't -- it's hard
5 to -- to determine the smaller fish, because they
6 disappear rather rapidly.
7 Q. And over what -- what is the last such
8 kill that you recall?
9 A. (No response.)
10 Q. Low water kill?
11 A. Low water kill, the drought of '90, of
12 89-90.
13 Q. And that's in one of the half a dozen
14 incidents you're talking about?
15 A. That would be one of the larger ones.
16 Probably quite a few things unusual happened during
17 that period.
18 Q. Like what?
19 A. The low water levels, the drying out of
20 the Everglades, the concentration of alligators in the
21 main canal, closing the Refuge to public use, all types
22 of unusual events.
23 Q. Now, how about the fish kills caused by,
24 related to water quality, how many of them would you
25 say there's been?
138
1 MS. PONZOLI: Object to the form.
2 THE WITNESS: Probably somewhere, eight to
3 ten, dozen. I don't have an exact record of
4 them and we're not -- I'm not sure of all of
5 them, all of them, but somewhere in that
6 neighborhood. It could probably be documented
7 over the years.
8 BY MR. EARL:
9 Q. Eight to ten dozen?
10 A. No. Eight to ten or a dozen.
11 Q. Oh, okay.
12 And what's been the extent of those,
13 measured by the same scale as used for the low water
14 fish kills?
15 A. Oh, probably a little more localized in a
16 pumping area. Less, probably an area of less than a
17 mile of canal. Although, as I mentioned, it's hard to
18 judge. Sometimes these things float several miles down
19 the canal when the pumps are running.
20 Q. How about the quantities?
21 A. Numbers probably in the hundreds, maybe
22 into the very low thousands. It's hard to judge.
23 Q. Would you say low water conditions over
24 the period you've been there have resulted in more fish
25 kills than the water quality?
139
1 A. You mean numbers?
2 Q. Conditions.
3 A. You mean numbers of?
4 Q. Yes, sir.
5 A. No. I would probably say -- have to say
6 that, best as best I can remember, looking at old
7 aerial reports from years past, that inflow of water
8 and certain pump stations closed cause more fish kills
9 than low water.
10 Q. My question was more specifically while
11 you've been there.
12 A. While I've been there?
13 Q. Yes, sir.
14 A. Still probably through inflow, inflow
15 water.
16 Q. More fish kills through inflow water?
17 A. Um-hum. Yes.
18 Q. But you don't know what parameter would
19 have caused that?
20 A. No.
21 Q. Would it be low DO?
22 A. It could be.
23 Q. Has any investigation ever been done on
24 that?
25 A. Some DO levels were taken.
140
1 Q. By who?
2 A. By my staff.
3 Q. Okay.
4 A. And I think by Game and Fish. They -- we
5 report all those to the Game and Fish Commission and
6 possibly to the Water Management District.
7 Q. All right.
8 So there's a record of all of the fish
9 kills?
10 A. Not an explicit record. There's probably
11 reference to them in the annual narrative reports.
12 There are some records, probably.
13 Q. Is there any quantitative way to compare
14 the amount of fish kill through water quality problems
15 versus low water problems?
16 A. Probably not.
17 Q. Okay.
18 Does anybody there now know more about
19 this than you do?
20 A. Dr. Maffei may know about them, the more
21 recent ones, but the earlier ones that were caused by a
22 particular pump station, I believe that pump station
23 was removed before Dr. Maffei reported for duty.
24 Q. What pump station was that?
25 A. It was known as the sugar cane pump
141
1 station.
2 Q. Did that come from --
3 A. From the SM Knight Sugar Cane Farm
4 directly into the Refuge.
5 Q. And that is the one that caused most of
6 these water quality fish kills you have been telling me
7 about?
8 A. Yes. It and some inflows from Acme, Acme
9 improvement pumps, Acme 1 and Acme 2.
10 Q. Acme has nothing to do with the EAA, does
11 it?
12 A. I don't think they do.
13 Q. And Sugar Cane, SM Knight, that is now
14 taken over by the nutrient removal project; is that
15 correct?
16 A. That's correct.
17 Q. So you don't have any discharges any more,
18 do you?
19 A. No.
20 Q. Okay.
21 Have there been other pump stations which
22 have been the source of documented water quality fish
23 kills?
24 A. Fish kills? No.
25 Q. What is the last such water quality
142
1 related fish kill from those pump stations?
2 A. I don't know, Mr. Earl. I'd have to go
3 look it up and see.
4 Q. Last one you recall?
5 MS. PONZOLI: Asked and answered.
6 THE WITNESS: I don't know, Mr. Earl.
7 BY MR. EARL:
8 Q. Okay.
9 A. I can't -- I can't give you a specific
10 date.
11 Q. Okay.
12 Any in the last year?
13 A. No.
14 Q. Last two years?
15 A. This is '93, '92. None that I know of.
16 Q. Now, we were talking about direct affects
17 of EAA nutrients on threatened or other species, and we
18 talked about fish kills, and now you talked about
19 elimination of habitat. From nutrients, what habitat
20 now has been eliminated?
21 A. Open water slough areas where cattail has
22 grown across sawgrass type marsh and wet prairie that
23 cattail had grown across.
24 Q. Are those two separate categories, open
25 water, sloughs where cattails have grown across?
143
1 A. Well, an open water slough is different
2 from a wet prairie.
3 Q. Okay.
4 A. And different from a sawgrass area.
5 Q. Okay.
6 And what was your second category, wet
7 prairie?
8 A. Wet prairie.
9 Q. It's been replaced by what?
10 A. Cattail, in some cases.
11 Q. Any other habitat replacement as a result
12 of nutrients?
13 A. I would think that on the north end around
14 the fringe that the scar -- on the scar area that
15 surround the fringe of the Refuge has been affected and
16 the habitat has been changed by the nutrients in the
17 north end where the willows and the other changed
18 vegetation is found.
19 Q. Do you attribute that primarily to
20 nutrients or to overdrainage hydroperiod?
21 A. Which?
22 Q. Around --
23 A. Around the fringe?
24 Q. Around the northern end.
25 A. The northern edge, north end I contribute
144
1 (sic) to both.
2 Q. And habitat replacement, you're referring
3 to the northern end, is willows and other woody, brushy
4 species?
5 A. Yes. And there is some cattail in that
6 area.
7 Q. And up there you attribute to both, you
8 said both what?
9 A. Both nutrients and overdrainage.
10 Q. Are you able to separate the two factors
11 in terms of which is responsible for what?
12 A. No.
13 I would rely on my technical people to
14 separate that.
15 Q. Who are your technical people who would be
16 able to tell me that?
17 A. Dr. Maffei.
18 Q. Okay.
19 And you said the open water slough areas
20 where cattails have come in, correct?
21 A. Yes. Grown across.
22 Q. Okay. Grown across.
23 And what's the approximate acreage of the
24 area that's been impacted by that, open sloughs?
25 A. Of sloughs, I don't know. I can't
145
1 calculate that.
2 Q. Where are they located, the slough areas
3 that have been replaced all over?
4 A. All around the perimeter and south and
5 southwest corner in the south end.
6 Q. The area that we talked about before?
7 A. Yes.
8 Q. And you also said the wet prairie has been
9 replaced by cattails. Where is that primarily?
10 A. Wet prairie, I don't mean all of it. Some
11 of it is -- that's a habitat type, a wet prairie type.
12 Q. Um-hum.
13 A. And in the same location where all the
14 cattails have grown, this is where those areas, those
15 habitat types have been changed.
16 Q. Okay.
17 Is it your belief, Mr. Neely, that around
18 the fringe, when you talk about fringe, you're talking
19 about the fringe of canals, correct?
20 MS. PONZOLI: Object to the form.
21 BY MR. EARL:
22 Q. When you say fringe, what do you mean?
23 A. I mean the fringe of Water Conservation
24 Area 1, the area between the interior and edge of the
25 canal.
146
1 Q. Okay.
2 Has there been subsidence in that area?
3 A. The fringe area?
4 Q. Yes, sir.
5 A. I don't know.
6 Q. Has that fringe area in the past, portions
7 of it been overdrained?
8 A. Under extreme low water conditions, it
9 was, it may have been overdrained.
10 Q. How far south does that overdrainage go
11 under low water conditions?
12 A. Well, it would, under extreme conditions,
13 the whole drainage could have all been all the way so
14 far south to the Hillsboro Canal when the water levels
15 got to nine feet, but that was only for short periods
16 of time.
17 Q. Under 11 feet, how far south would it go,
18 overdrainage?
19 A. Under 11 feet?
20 Q. Um-hum.
21 A. The fringe area would have been drained
22 under 11 feet for probably everything except that
23 immediately adjacent to the Hillsboro Canal.
24 Q. Okay.
25 What happens to Loxahatchee peat when it
147
1 dries out?
2 A. It compacts a little bit, I would imagine,
3 and oxidizes a little bit. I don't know what your --
4 what your question is. What happens to --
5 Q. My question is, what is your understanding
6 of the process when Loxahatchee peat dries out, what
7 physically happens to the peat.
8 A. It shrinks a little bit.
9 Q. And you said it oxidizes. What does that
10 mean?
11 A. Burns up.
12 Q. You don't mean an open fire and that
13 type --
14 A. That's not what I mean. Like a pile of
15 dead leaves in your yard, they oxidize.
16 Q. And does that -- is that one of the
17 factors that causes subsidence of peat?
18 A. No. My understanding of subsidence is, is
19 a physical factor. Oxidation is a -- is a chemical
20 factor or a physical factor that is changed by organic
21 process as opposed to physical.
22 Q. Does oxidation cause a loss in mass of the
23 peat?
24 A. Yes, I'd say that it would. The entire
25 EAA is just about gone.
148
1 Q. How about in Loxahatchee?
2 A. How about what?
3 Q. How about loss of mass of peat in
4 Loxahatchee, where has that occurred?
5 A. I don't have any good documentation on
6 loss of peat in Loxahatchee.
7 Q. Why is that?
8 A. Why don't I have the documentation?
9 Q. Yes, sir.
10 A. I just -- I don't have any documentation.
11 That's why.
12 Q. Okay.
13 You're not aware of any of studies that
14 have been done reporting subsidence along the canals
15 around Loxahatchee; is that your testimony?
16 A. Possibly Work Order 32 might have
17 addressed that. I do not recall it specifically.
18 MS. PONZOLI: Excuse me.
19 BY MR. EARL:
20 Q. Other than Work Order 32, you've never
21 seen any historical studies reporting subsidence on the
22 canals?
23 A. Historical data along the Hillsboro Canal,
24 I think, prior to construction of the levee, showed
25 some subsidence. I think there was some reference to
149
1 subsidence, and the Hillsboro Canal in earlier
2 documents.
3 Q. Any other reports?
4 A. None that I'm aware of.
5 Q. Are you aware of any subsidence, lowering
6 of land elevations along L-40, L-7?
7 A. No. Not on the inside of the canal.
8 Q. You talked to me about subsidence being a
9 physical process. What causes subsidence?
10 A. Compaction. That's my understanding of
11 it. Either compaction or erosion.
12 Q. And your answer would be the same with
13 regard to the loss of land elevation, surface
14 elevation, a lowering of surface elevation along the
15 L-40 and L-7 canals?
16 MS. PONZOLI: Objection to form. I don't
17 understand your question.
18 THE WITNESS: I don't either.
19 BY MR. EARL:
20 Q. Are you aware of any lowering of the land
21 elevations or land surface along the L-7 or L-40
22 canals?
23 A. I thought I answered that a while ago. My
24 answer was no.
25 Q. And you're relying on Work Order 32 and
150
1 what else to come to your opinions that are -- strike
2 that.
3 What species have been displaced by the
4 habitat replacement you've just referenced in
5 Loxahatchee?
6 A. What species have been displaced?
7 Q. Yes. What has the effect on upper trophic
8 levels has the habitat change you just described to me
9 had?
10 A. The dense stands of cattail preclude
11 wading birds from feeding in open water areas and
12 Everglades kites from fishing for snails and osprey
13 from fishing -- from fishing for fish, and so on and so
14 on.
15 Q. Dense cattails prevent wading birds --
16 MS. PONZOLI: Object to recharacterization
17 of his testimony.
18 BY MR. EARL:
19 Q. What was the second category?
20 A. I --
21 Q. You told me wading birds. I asked you
22 what species were being displaced by the changed
23 habitat. You told me wading birds.
24 A. Yes.
25 Q. Okay.
151
1 What else?
2 A. Kites from catching snails.
3 Q. Wherein the kites cannot catch snails in
4 the cattail?
5 A. That is correct.
6 Q. And what else?
7 A. Osprey from fishing for fish in open
8 water.
9 Q. Any others that you're aware of?
10 A. All migratory waterfowl can't land in
11 cattail and swim or feed, so they're displaced.
12 Q. And what is the total area in which each
13 of these species have been displaced, to your
14 knowledge?
15 MS. PONZOLI: Object to the form.
16 THE WITNESS: I don't -- I can't estimate
17 that area. There's 8,000 acres of cattail.
18 BY MR. EARL:
19 Q. Well how much of it precludes wading
20 birds?
21 MS. PONZOLI: Same question. Asked and
22 answered.
23 THE WITNESS: I don't --
24 BY MR. EARL:
25 Q. You say 8,000 acres of cattail. In what
152
1 percentage of that 8,000 acres are wading birds
2 precluded?
3 A. I can't answer.
4 Q. Why not?
5 MS. PONZOLI: Same question, Mr. Earl. He
6 doesn't have to answer it. If he does not know
7 the answer, he doesn't know the answer.
8 MR. EARL: He said he can't answer. I'm
9 saying why not?
10 THE WITNESS: Oh, well, why can't I answer
11 it?
12 BY MR EARL:
13 Q. Yes, sir.
14 A. I can't. I'd have to look at something
15 definitive to come up with a determination.
16 Q. Okay.
17 What would be definitive?
18 A. Oh. You could make an estimate from an
19 aerial photo. You could do it through satellite
20 imagery. Any number of things that could be done.
21 Q. Are you capable of making such a
22 determination?
23 A. No. I could from -- I could make a rough
24 estimate from satellite or from aerial photos, but I
25 couldn't give you anything exact.
153
1 Q. Who would be best able to do that in -- on
2 your staff?
3 A. Dr. Maffei.
4 Q. Do you claim to be an expert in aerial and
5 satellite imagery in interpretation?
6 A. Who?
7 Q. Do you?
8 A. No, sir.
9 Q. Okay.
10 Would your answer be the same as to the
11 other species you've just identified?
12 MS. PONZOLI: Object to the form. I don't
13 understand the question, Mr. Earl.
14 MR. EARL: Okay. Fine.
15 We'll go through each of them.
16 MS. PONZOLI: Just tell us what you're
17 asking. Just make it easy and tell us what
18 you're asking. I don't understand.
19 BY MR. EARL:
20 Q. What percentage of the cattail, the 8,000
21 acres you've talked about, are of such a density that
22 osprey can no longer use it for fishing?
23 A. Of the cattail, what percentage of the
24 cattail?
25 Q. Yes.
154
1 A. I'd say probably a hundred percent of the
2 cattail.
3 Q. Okay.
4 Any place there's cattail?
5 A. No. Any place there's dense stands of
6 cattail that preclude an osprey from seeing a fish in
7 the water.
8 Q. And on a per unit basis, what sort of
9 density is necessary to preclude an osprey from
10 fishing?
11 A. I don't know.
12 Q. Who does know on -- from your staff?
13 A. My staff? Probably Dr. Maffei, I could --
14 I would say.
15 Q. Okay.
16 You don't claim to be an expert, do you,
17 on determining density of cattail and osprey?
18 A. I sure don't.
19 Q. Okay.
20 Now, the Everglades kite, areas in which
21 it is able to obtain snails, you're not an expert in
22 determining density of cattail that would preclude
23 that, are you?
24 A. No.
25 Q. And again, would that be Dr. Maffei?
155
1 A. I'm not sure whether he could or not, but
2 I would rely on him to either do it or find the answer
3 for me.
4 Q. Would that more likely be somebody over at
5 Vero Beach who would be more able to do that?
6 A. I don't know.
7 Q. Okay.
8 A. I don't know their expertise at Vero
9 Beach.
10 Q. And, to your knowledge, you're not expert,
11 are you, in determining density of cattails which would
12 preclude migratory waterfowl from using the -- an area
13 of the Loxahatchee?
14 A. No, I'm not.
15 Q. Okay.
16 Are you able to determine what density of
17 cattails would preclude migratory waterfowl?
18 A. No, I'm not.
19 Q. Okay.
20 And Dr. Maffei, again, would be the
21 person --
22 A. Dr. Maffei.
23 Q. -- would be the one to ask?
24 A. Most likely.
25 Q. Okay.
156
1 Any other species that are precluded by
2 the change to cattails, in your opinion?
3 A. Specifically, I couldn't name any, but
4 most wading birds, most of the waterfowl.
5 Q. What was, as you understand, in its
6 natural condition, what was the vegetative nature of
7 the northern part of the Loxahatchee that you referred
8 to earlier as being invaded by willow and other brushy
9 species?
10 A. Wet prairie, sawgrass ridges, sloughs and
11 tree islands.
12 Q. And what -- what species has the switch
13 from wet prairie sloughs to willow and other brushy
14 vegetation in the northern part of Loxahatchee, what
15 species has that displaced?
16 A. I would say that it's displaced kites from
17 feeding, and osprey from fishing. Two that come to
18 mind.
19 Q. Displaced the wading birds?
20 A. There's probably some wading birds in some
21 of the thinner willow areas that they can move around,
22 some of the smaller wading birds that fish in willow.
23 Q. Has displaced the larger wading birds?
24 A. I don't know.
25 Q. Who would know that?
157
1 A. I don't know who would know that. Dr.
2 Maffei may have some indication as to what's happening
3 there.
4 Q. What habitat was replaced when the pooling
5 was created by the S-10 structures and the closure of
6 the project, what you call the flat area, what habitat
7 was replaced by that, sir?
8 A. When the levees were closed? That was
9 probably, to the best of my knowledge, and based on
10 what I could see on aerial photos, there was some
11 sawgrass areas, there was some wet prairie areas.
12 There was some slough areas and some tree island areas.
13 Q. And what, if any, species were displaced
14 by the creation of that aquatic zone as opposed to
15 sawgrass or slough areas?
16 MS. PONZOLI: Object to the form.
17 THE WITNESS: What species were --
18 BY MR. EARL:
19 Q. By that habitat change.
20 A. By the deeper water?
21 Q. The question is, what species, if any,
22 were displaced when the sawgrass, tree islands and
23 sloughs down in the southern portion of the
24 Loxahatchee --
25 A. Um-hum.
158
1 Q. -- were replaced by the aquatic zone, the
2 flat area?
3 MS. PONZOLI: Same objection.
4 THE WITNESS: I don't know if there were
5 any species displaced by that open water area.
6 BY MR. EARL:
7 Q. How deep is that open water area down
8 there?
9 A. It varies in depth, depending on the
10 regulation schedule.
11 Q. Okay.
12 What is it right now, as we sit here,
13 approximately?
14 A. I don't -- I haven't been in the office in
15 over a week. I have no idea what regulation, where the
16 gauge is reading right now.
17 Q. Well, the last time you looked at it.
18 A. In the neighborhood of 16 feet water
19 levels were, and that means if the ground elevation is
20 11 feet that the water is probably five feet deep in
21 some spots.
22 Q. Okay.
23 And how deep was the water there in that
24 area prior to the closure of the S-10 structures?
25 A. I don't know.
159
1 Q. Okay.
2 It wasn't five feet, was it?
3 A. No.
4 Q. Are you aware if any sawgrass can live
5 under five feet of water?
6 A. No.
7 Q. Does normal open slough community live
8 under five feet of water for any period of time?
9 A. Slough community could live in five feet,
10 four to five feet of water.
11 Q. But there's no slough community existing
12 under the flats out there? That's not a slough area,
13 is it?
14 A. It's not classified as a slough area.
15 There were some sloughs through that area.
16 Q. Okay.
17 A. I don't -- sloughs have white water lily,
18 there's white water lily in the flats.
19 Q. Okay.
20 I'm asking you what different species are
21 there now than were there.
22 A. I don't know.
23 Q. You don't know. Who would know that?
24 A. I don't know who would know that. You'd
25 have to go out and do a survey and find out species are
160
1 there right now and go compare it to slough area right
2 now.
3 Q. Okay.
4 Well, generally, any aquatic area -- is
5 that -- you consider that an aquatic area?
6 A. What?
7 Q. The flat area.
8 A. It's an open water area.
9 Q. Okay.
10 You consider that different than a slough
11 community?
12 A. Yes. By terms of what's in the -- what
13 sloughs are classified as in the Everglades, yes.
14 Q. Okay.
15 Is there different vegetative types?
16 A. Of?
17 Q. Between the slough community and open
18 water community.
19 A. They could be the same and they could be
20 different. There's white -- as I mentioned there's
21 white water lily in the slough. There's white water
22 lily in the open water area. There's hydrilla in the
23 slough. Three could be hydrilla in the open water
24 area.
25 Q. Is there a water depth at which you get a
161
1 different community in the open water area?
2 A. Not really.
3 Q. How is it that the flat area is different,
4 if you know, in terms of vegetative types or species
5 that use the area than it was prior to the closing of
6 the S-10 structures?
7 MS. PONZOLI: Would you read that question
8 back?
9 THE WITNESS: Yeah, I don't understand
10 your question. I thought I just answered that,
11 but I -- I don't believe I --
12 MS. PONZOLI: Just read it back. Maybe it
13 will -- maybe it will do better when I hear it
14 the second time. Just read it back, please.
15 (Thereupon, a portion of the record was
16 read back by the court reporter.)
17 THE WITNESS: I don't know.
18 MS. PONZOLI: I'm going to have a
19 continuing objection to all of these questions,
20 Mr. Earl.
21 MR. EARL: You can make objections as you
22 please, Counsel.
23 BY MR. EARL:
24 Q. Since you got to the Loxahatchee in 1981,
25 have there been any other, other than the -- what
162
1 you've described being caused by nutrients and
2 overdrainage, have there been -- and Melaleuca, have
3 there been any other habitat changes caused by other
4 factors?
5 A. Do you meant permanent changes or
6 temporary changes?
7 Q. Either.
8 A. Low water levels, freeze, fire.
9 Q. Low water levels, wouldn't that be
10 included in overdrainage, or is that a different
11 category?
12 A. Yeah.
13 Q. Okay.
14 How many acres would you say have been
15 impacted by low water levels?
16 A. You mean --
17 Q. Permanent change.
18 A. Permanently?
19 Q. Yes, sir.
20 A. Permanently changed by low water levels?
21 Q. Um-hum.
22 A. I couldn't answer that. I don't know.
23 Q. Who would know?
24 A. I don't -- I don't know who would know.
25 I'm not aware of any study that's been directed at
163
1 that.
2 Q. Well, have you seen -- in the years you've
3 been there, you said you've observed vegetative
4 changes. In what areas have you seen vegetative
5 changes as -- resulting from low water other than in
6 the northern portion?
7 A. I've seen temporary changes during low
8 water levels, but permanent change, I've seen spread of
9 willow on the north end. And basically that's the only
10 permanent change I know. Continuous spread of willow
11 up there where it's overdrained.
12 Q. Fish and Wildlife Service also used to use
13 fuel oil, didn't they, to kill vegetation?
14 A. I don't know.
15 Q. You never heard of that?
16 A. No.
17 Q. You never heard of the application of
18 Number 2 fuel oil on the water in Loxahatchee?
19 A. No.
20 Q. And you talked about another effect of
21 nutrients, did you not, about the elimination of food
22 base?
23 A. Yes.
24 Q. What is that, sir?
25 A. This was -- my reference was to the solid
164
1 stands of cattail. The cattail goes over the open
2 water areas and eliminates the availability of the food
3 base to the wading birds or the kites or the osprey or
4 any of the other species that utilize those open water
5 areas.
6 Q. You say they reference. What references
7 are those? What are you relying on for that judgment?
8 A. (No response.)
9 Q. What do you rely on for that judgment?
10 You said there were references.
11 A. I don't believe I said that.
12 MR. EARL: Yes. Would you read back his
13 answer, full answer, please?
14 (Thereupon, a portion of the record was
15 read back by the court reporter.)
16 MS. PONZOLI: You have to go before that,
17 because I don't understand the antecedent to my
18 reference, so you have to go back to his
19 question.
20 MR. EARL: Well, unless you want to,
21 Counsel. We don't have to, because Mr. Neely
22 was correct. He said my reference. I
23 understood him to say there are references.
24 MS. PONZOLI: Oh. Okay.
25 THE WITNESS: I did not say anything to
165
1 reference. I said my reference was to.
2 MS. PONZOLI: Okay.
3 BY MR. EARL:
4 Q. Okay.
5 Are you aware of any references which
6 establish the elimination of the food base?
7 A. Work Order -- Work Order 32 does.
8 Q. And what does it conclude, as you recall?
9 A. It concludes that cattail has gone over
10 open water areas and wading birds can't feed there
11 anymore.
12 Q. Does Work Order 32 conclude that there was
13 any impact on higher trophic levels from the --
14 A. I don't recall, Mr. Earl. I have no
15 recollection. Without sitting down and going through
16 Work Order 32, I don't recall. I don't recall whether
17 it concluded that or not.
18 Q. Okay.
19 Earlier this morning you mentioned vast
20 stands of cattail when you got there in. Where were
21 they located?
22 A. In the -- along the edge of the canals,
23 and particularly the ones that impressed me were on the
24 southwest edge of the Refuge in the neighborhood of the
25 L-39, L-7 convergence.
166
1 Q. Do you have any -- essentially where they
2 are now?
3 A. Well, they've spread since then.
4 Q. Okay.
5 How much have they spread since? What has
6 been the growth of cattail since 1981?
7 A. I have no idea as to the actual number.
8 Q. And again, that would be Dr. Maffei?
9 A. His name is Maffei, M A F E I (sic).
10 Dr. Maffei could probably give you some
11 figures on spread of cattail since he's got there, and
12 maybe even further back.
13 Q. Okay.
14 Where have you seen the particular growth
15 that's -- with your own eyes since 1981?
16 A. In the -- the area around the fringe of
17 canals I've seen cattail expand there, and on the
18 western, southwestern sides of the Refuge, along the
19 southern part.
20 Q. And do you have any estimate of the
21 increased area?
22 A. No, I don't.
23 Q. Okay.
24 Elimination of food base for the wading
25 birds, what else has been eliminated by the -- what
167
1 other food bases, what other species?
2 A. I would -- I don't know. That's a
3 technical question, and I'd have to get some reference
4 on that. I don't know what other food bases.
5 Q. What is the food base of the wading birds
6 that you say has been eliminated by the cattails?
7 A. Small fish. Small invertebrates, insects,
8 snails.
9 Q. Do you have any -- excuse me. Go ahead.
10 A. I didn't say. I just said snails.
11 Q. Snails?
12 Do you have any studies which document
13 that?
14 A. Do I have?
15 Q. Yes, sir.
16 A. No, I don't.
17 Q. Are you aware of any?
18 A. I'm not directly aware of any. I don't
19 know whether Work Order 32 got into that or any of the
20 other studies that have been done prior to my getting
21 there.
22 Q. Are you able to determine at what density
23 this food base is eliminated, what density of cattails?
24 A. No.
25 Q. Have you yourself determined, or aware of
168
1 anybody else's study to determine that the food base,
2 small fish, the invertebrates, the snails, don't exist
3 in the dense cattail area?
4 MS. PONZOLI: Would you read that question
5 back again?
6 (Thereupon, a portion of the record was
7 read back by the court reporter.)
8 MR. EARL: I'll save everybody some grief
9 and rephrase that one.
10 (Thereupon, a discussion was held off the
11 record.)
12 BY MR. EARL:
13 Q. Mr. Neely, have you done any analysis,
14 personally, to determine whether the food base you have
15 previously described as being eliminated by cattails --
16 A. No.
17 MS. PONZOLI: He hasn't finished the
18 question.
19 BY MR. EARL:
20 Q. I haven't finished the question.
21 A. I was waiting. I was sitting there
22 waiting to see if you were going to go further.
23 Q. Have you done any study to show that --
24 that the food base is eliminated as opposed to covered
25 up or unavailable?
169
1 A. No.
2 Q Do you know of anyone else who has?
3 A. Not that I can recall.
4 Q. Okay.
5 Are you aware any of macroinvertebrate
6 monitoring or sampling in such areas to determine the
7 loss of macroinvertebrates?
8 A. There was some macroinvertebrate sampling
9 done in connection with Work Order 32, but I don't
10 remember to what extent.
11 Q. Are you aware of any other work
12 specifically establishing the loss of food base you
13 referred to?
14 A. As again, as part of Work Order 32, there
15 was a wading -- a portion of a wading bird study that
16 might have referenced where birds were going to feed
17 and not going to feed.
18 Q. My question goes more to a study which
19 shows the loss of food base organisms in an area of
20 dense cattails, not whether the wading birds go there.
21 A. No.
22 Q. Your answer is no?
23 A. My answer is no.
24 Q. Are you aware of any ongoing work that
25 goes to that question?
170
1 A. No.
2 Q. Okay.
3 (Thereupon, a discussion was held off the
4 record.)
5 BY MR. EARL:
6 Q. How big is Loxahatchee Refuge?
7 A. In the neighborhood of 145,000 acres. I
8 could look and give you an exact figure from somewhere.
9 Q. We have Exhibit 1 here. In the
10 introduction section the first sentence states 145,635
11 acres.
12 A. Right.
13 Q. Is that correct?
14 A. That's correct.
15 Q. The next statement says The Refuge is part
16 of a huge freshwater storage area connected by a series
17 of canals and levees built by the U.S. Army Corps of
18 Engineers in the 1950s and 1960s. That's correct too?
19 A. Um-hum. Yes.
20 Q. Next sentence, two sentences after that,
21 an agreement between SFWMD and the U.S. Fish and
22 Wildlife Service in 1951 enabled the establishment of
23 Loxahatchee National Wildlife Refuge under the
24 Migratory Bird Conservation Act of 1929. Is that also
25 true?
171
1 A. With the exception that the South Florida
2 Water Management District at that time was known as the
3 Central and Southern Florida Flood Control District.
4 Q. Would you -- with that exception that's an
5 accurate statement?
6 A. Right.
7 Q. It says The Service leases 143,085 acres
8 known as Water Conservation Area 1 from the State of
9 Florida through a cooperative license agreement.
10 A. That is correct.
11 Q. That a correct call on the lease?
12 A. I beg your pardon?
13 Q. Is 143,085 acres, is that approximate?
14 A. To the best of my knowledge.
15 Q. Okay.
16 And going down two or three lines, it says
17 FWS. I assume Fish and Wildlife Service?
18 A. Correct.
19 Q. Owns in fee title 2,550 acres?
20 A. To the best of my knowledge, that's an
21 accurate figure.
22 Q. Okay.
23 And the briefing paper states, this is
24 subdivided into five compartments, Compartments A, B,
25 C, A, and the cypress swamp unit are located on east of
172
1 the Refuge headquarters area, which is eight miles west
2 of Boynton Beach, Florida. Compartment D is on the
3 western boundary, just north of the intersection of the
4 L-7 and L-39 levees. Is that also accurate?
5 A. Yes.
6 Q. What is Compartment D used for?
7 A. It's an area that has a levee around
8 portions of it and waters maintained in it.
9 Q. For what purpose?
10 A. For migratory birds.
11 Q. Are other areas of the Refuge managed for
12 the specific benefit of migratory birds?
13 A. Migratory birds and endangered species.
14 Q. Are there areas that are managed for one
15 species or species type?
16 A. No, I don't think there is any single
17 specie. It's managed for all migratory birds.
18 Q. Okay.
19 What is the purpose of -- D is for
20 migratory and waterfowl; is that correct?
21 A. You mean Compartment D?
22 Q. Yes, sir.
23 A. Compartment D is managed for migratory
24 birds.
25 Q. What type of migratory birds use
173
1 Compartment D?
2 A. All types. Probably many, many more than
3 you wish me to name. I've seen waterfowl in there.
4 I've seen eagles in there. There's all kinds of land
5 birds. There's all types of wading birds. There's
6 raptors, any number of migratory birds.
7 Q. Okay.
8 Are any areas -- where do the waterfowl
9 congregate?
10 A. In?
11 Q. In the Loxahatchee.
12 A. In the --
13 Q. Are there specific areas where they favor?
14 A. No. They -- we've seen waterfowl all over
15 the Refuge.
16 Q. You don't find a higher population of them
17 in aquatic areas?
18 A. Compared to the rest of the Refuge, I
19 wouldn't say it would be higher.
20 MS. PONZOLI: Object to form.
21 BY MR. EARL:
22 Q. Is the water level in -- how is the water
23 level in Compartment D managed?
24 A. It's a relatively new compartment and it
25 has a pump on it that connects with the L-7 canal,
174
1 basically. That pump has been out of operation for
2 some time, and it's basically done through either
3 rainfall or gravity feed from the L-7.
4 Q. The last paragraph on page one of your
5 introduction, sir, five lines down, states land
6 elevations vary from 17 feet msl at the northern tip of
7 the Refuge to 11 feet msl at the southern tip. Is that
8 accurate?
9 A. That's a general characterization. I
10 can't tell you whether it's 17.3 or 11.1, or what,
11 because that's a general characterization.
12 Q. Okay.
13 But didn't you tell me earlier this
14 morning that it goes below 11 feet in some places?
15 A. It may. I said I did not know if it did,
16 if it went specifically under 11 feet along the
17 Hillsboro Canal underwater there.
18 Q. There's a reason you don't know that;
19 there's no -- the topography you have doesn't show
20 that?
21 A. Well, I can look real quick and see.
22 If I were to look at this topo map here, I
23 would say the way I would quickly interpret it, it
24 looks like there may be a very small spot that's under
25 11 feet there.
175
1 Q. You're referring to a page in Exhibit 1
2 that's prepared by -- the topographic map, Loxahatchee
3 National Wildlife Refuge?
4 A. Um-hum.
5 Q. Is that the Work Order 32 map you're
6 talking about?
7 A. This was a map that was done by the Coop
8 Fish and Wildlife Unit for Work Order 32.
9 Q. This is the one you were talking about
10 earlier being the best one?
11 A. Yes. Yes.
12 Q. Having referred to the map, are you aware
13 of any land elevations below 11?
14 MS. PONZOLI: Asked and answered.
15 THE WITNESS: I said there looks like
16 there's a small spot right there.
17 BY MR. EARL:
18 Q. Right where, sir?
19 A. Under -- it's 12.5.
20 Q. Down at the southwest quadrant there along
21 the Hillsboro?
22 A. Yeah. Yes. Just reading the contours
23 I -- best I can interpret it, it looks like this --
24 there might be a small spot under 11.
25 Q. Okay.
176
1 Other than that, are you aware of any
2 other land under 11?
3 A. No.
4 Q. Next sentence of your briefing paper
5 states, a 57 mile levee and associated inside borrow
6 canal defines the perimeter of the leased portion of
7 the property.
8 A. That's a general characterization. The
9 legal boundary of the Refuge -- of the Refuge of the
10 legal boundary of the leased portion of the Refuge is
11 described in more exact terms as right-of-way edge.
12 Q. As right-of-way edge?
13 A. Yes.
14 Q. But your general description is, as you've
15 used for briefing here, states the associated inside
16 borrow canal and the levee define the perimeter of the
17 leased portion?
18 A. That's what it says there.
19 Q. Well, is that accurate?
20 A. I just said --
21 MS. PONZOLI: Asked and answered.
22 THE WITNESS: I just --
23 MS. PONZOLI: You just gave the answer.
24 THE WITNESS: I just said it -- it does,
25 in general, define the perimeter of the leased
177
1 area, but the exact perimeter of the leased area
2 is defined in legal terms as right-of-way edge.
3 MS. PONZOLI: They just define it, Mr.
4 Earl.
5 BY MR. EARL:
6 Q. What is your understanding of where the
7 boundaries are, coming down the L-7 canal, in the
8 middle of the canal?
9 A. Coming down the L-7 canal?
10 Q. Yes, sir. The boundaries of the leased
11 portion.
12 A. It say outside, the outside edge of L-7
13 right-of-way.
14 Q. What is that -- where is that in reference
15 to the levee?
16 A. Approximately a hundred to 125 feet west
17 of the levee.
18 Q. How about along the Hillsboro Canal, where
19 is the -- the outward limit of the leased premises?
20 A. The center line of the L-39 levee.
21 Q. How about along the L-40 levee?
22 A. The outside edge or the eastern edge of
23 the L-40 right-of-way.
24 Q. And then on -- okay.
25 Can you describe for me where levee 39 is?
178
1 Is it on the east or west of the Hillsboro canal?
2 A. Well, to my recollection, the Hillsboro
3 canal runs generally from the southeast to the
4 northwest. And the boundary is on the center line of
5 the Hillsboro Canal.
6 Q. The boundary of the leased area is on the
7 center line?
8 A. Boundary of the Refuge and the leased
9 area.
10 Q. Where is levee 39 located with reference
11 to the Hillsboro Canal?
12 A. It's south -- it's to the southwest of the
13 Hillsboro Canal, generally speaking.
14 Q. Do you have a map in the maps you brought
15 with you today that shows that?
16 A. I don't know whether there's one here that
17 shows that in that much of a detail or not, Mr. Earl.
18 I'm not sure I see it in that detail on
19 that map. I'm not sure anything we've got here today
20 is that detailed unless there's something stuck back
21 here that I would have to look at as far as the
22 boundary goes. Here, let me look right here real
23 quick.
24 I don't believe we have anything that
25 shows that in that detail.
179
1 Q. What was the colored map you had of L-39,
2 what does that show us?
3 A. That wasn't -- that was the colored map of
4 the S-39, not L-39. S-39 is that structure right
5 there.
6 This may show you a little bit of the
7 right-of-way of L-39 and the canal and the center line
8 is of the L-39 levee. There's a...
9 Q. What is that that you have there, the last
10 one?
11 A. I don't know. That may be -- may be
12 something. Let me unfold it. Let me just see. I've
13 forgotten what you wanted to know now. This may be it.
14 Q. Are these both the same, or no?
15 A. They're not. This is a metes and bounds
16 description.
17 Q. Of what?
18 A. I don't know. I'd have to look down there
19 and see what it says.
20 Q. Description Sketch, Water Conservation
21 Area 1, U.S. Fish and Wildlife Service Agreement.
22 In looking at this --
23 MR. EARL: Can we mark this, Counselor?
24 Are we going to have to copy this?
25 THE WITNESS: this is a preliminary too.
180
1 I can't vouch to the District's authenticity,
2 because it's stamped preliminary.
3 MS. PONZOLI: What he's asking you, Burk,
4 is --
5 THE WITNESS: No, I don't.
6 MS. PONZOLI: -- original can be attached.
7 All right.
8 Then what -- we would get back our
9 original. You would have copies --
10 MR. EARL: We'll agree to that. We'll
11 have copies made, yes.
12 MS. PONZOLI: Okay. All right. That's
13 fine.
14 We can go ahead. You would return the
15 original to us, but the deposition would have
16 copies attached to it.
17 (Thereupon, the document was marked
18 Plaintiff's Exb. No. 2 for Identification.)
19 BY MR. EARL:
20 Q. Okay.
21 We marked as Exhibit 2, understanding it's
22 preliminary, what is it, sir?
23 A. This is part -- this was in the package of
24 proposed boundary adjustments.
25 Q. Between the Fish and Wildlife Service and
181
1 Water Management District?
2 A. Yes.
3 Q. Proposed boundary adjustment for the
4 Loxahatchee agreement?
5 A. Yes. This -- this map is not in effect.
6 This agreement has never been consummated.
7 Q. Okay.
8 What isn't in effect, just the small areas
9 detailed A and B? What is that?
10 A. No. There's quite a few areas that have
11 not been effected yet.
12 Q. Okay.
13 Tell me what the purpose of the changes
14 are and where they are, what these detail areas are.
15 A. Okay.
16 Q. Just a second. We have -- you have a
17 second map with you, correct?
18 A. Yeah.
19 Q. These detail areas?
20 A. Those are the detailed apparently.
21 Q. Okay. Apparently.
22 MR. EARL: Can we mark this as No. 2,
23 please?
24 MS. PONZOLI: Is this 2-A or No. 3?
25 MR. EARL: This will be No. 3.
182
1 (Thereupon, the document was marked
2 Plaintiff's Exb. No. 3 for Identification.)
3 BY MR. EARL:
4 Q. What does Exhibit 3 depict, sir?
5 A. These are details of proposed boundary
6 changes.
7 Q. Okay.
8 Which ones are in process now?
9 MS. PONZOLI: Object to the form.
10 THE WITNESS: I beg your pardon. I don't
11 understand.
12 BY MR. EARL:
13 Q. Which are pending now? Have any been
14 agreed to?
15 A. No.
16 Q. Are any of those -- okay.
17 What is the purpose of the various
18 changes?
19 A. Administrative purposes.
20 Q. Such as?
21 A. Such as an area to better configure with
22 the concession operation, an area to better administer
23 the Refuge boundary in places. And that's what
24 basically all of these things are down here. The one
25 on the north end is to facilitate the -- there's a
183
1 proposed levee across the north end to facilitate,
2 that's probably existing Refuge boundary there. And
3 this is existing Refuge boundary here.
4 Q. Do any -- you're aware Curtis Richardson
5 was detained by a law enforcement officer on the
6 Loxahatchee?
7 A. Yes. On the Refuge, yes.
8 Q. Where was he detained, as you understand
9 it?
10 A. Well, without looking at that map, I'm --
11 I can show you on that one.
12 Q. Let's look at this one.
13 A. Well, that's a preliminary map, sir.
14 That's not in effect. I'm not even sure I can show you
15 on that one, simply because structures aren't on there.
16 I need a map that has the water control structures on
17 it.
18 MR. EARL: Let's mark this as -- must be
19 4.
20 (Thereupon, the document was marked
21 Plaintiff's Exb. No. 4 for Identification.)
22 BY MR. EARL:
23 Q. Can you identify this No. 4? Have you
24 ever seen it before?
25 A. Yes. This is a map of South Florida Water
184
1 Management District.
2 Q. Okay.
3 A. The entire District there.
4 Q. Okay.
5 A. Specifically, he was -- it was at the
6 S-10.
7 MS. PONZOLI: No, Burkett.
8 BY MR. EARL:
9 Q. Where was he detained?
10 MS. PONZOLI: You can tell him. You can
11 tell him. I just don't want you to draw maps
12 for him.
13 THE WITNESS: He was just slightly to
14 the -- to the southeast of S-10D, just on the
15 north side of the L-39 levee.
16 BY MR. EARL:
17 Q. Just south of the S-10D?
18 A. Southeast of the S-10D.
19 Q. And what were the further --
20 A. On the north side of the L-39 levee. Out
21 on the end of a structure known as the S-10DUP.
22 Q. That's a Water Management District
23 structure, correct?
24 A. No.
25 Q. Whose structure is that?
185
1 A. Army Corps of Engineers.
2 Q. Okay.
3 So south of 10D?
4 A. Southeast.
5 Q. Southeast of 10D, that would be down this
6 way?
7 A. Um-hum.
8 Q. He was on the levee?
9 A. No, sir.
10 Q. Where was he?
11 A. He was out on the end of the structure
12 into the Hillsboro Canal.
13 Q. That structure serves what purpose?
14 A. It's a gauge, water gauge, water level
15 gauge.
16 Q. You did not personally observe this, did
17 you?
18 A. No.
19 Q. Okay.
20 What are you relying for your information?
21 A. Report from my law enforcement officer.
22 Q. Who was that?
23 A. Duane Denton.
24 Q. He reports to you?
25 A. Yes. Either to me or Deputy Allan Flock.
186
1 Q. Okay.
2 Were you on duty? Did he call you the day
3 he encountered Dr. Richardson?
4 A. No, I was not on duty. He did call me,
5 yes.
6 Q. Pardon me?
7 A. I was not on duty, but he did call me that
8 day.
9 Q. He did call?
10 A. Yes.
11 Q. He was excited, wasn't he?
12 MS. PONZOLI: Object to the form.
13 THE WITNESS: No, sir.
14 MR. EARL: Hum?
15 MS. PONZOLI: I said object to the form.
16 BY MR. EARL:
17 Q. Okay.
18 He was excited, wasn't he?
19 A. Not that I know of.
20 Q. Okay.
21 He tell you words to the effect, I got
22 Duke, I got Duke?
23 A. I don't recall that.
24 Q. What do you recall?
25 A. I recall him saying that he had
187
1 apprehended Dr. Curtis Richardson and three other
2 people on the Refuge.
3 Q. And when they were under surveillance,
4 what kind of surveillance did you --
5 MS. PONZOLI: Object to the form. Stop
6 beating your wife, I mean.
7 THE WITNESS: No.
8 BY MR. EARL:
9 Q. When you --
10 MS. PONZOLI: The theory of surveillance
11 is rather offensive, Mr. Earl.
12 BY MR. EARL:
13 Q. Had you ever talked with this law
14 enforcement officer about looking for Duke University
15 people?
16 A. Specifically, not that I can remember.
17 We've -- other than for him to beware of any
18 trespassers on the Refuge doing research.
19 Q. You have no recollection talking with him
20 about Duke University people or persons --
21 A. No.
22 Q. -- is that right?
23 A. I have talked to him about Duke
24 University.
25 Q. Okay.
188
1 What conversation was that?
2 A. Concerning Dr. Richardson's apprehension.
3 Q. I mean prior to the apprehension.
4 A. Prior to apprehension we had had reports
5 from the Game and Fish Commission that they observed
6 Duke University vehicles on the L-39 levee.
7 Q. Who at Game and Fish told you that?
8 A. An officer by the name of Farrell. I
9 don't remember his first name.
10 Q. How long ago had those reports been?
11 A. Within the last year. I don't know the
12 specific date.
13 Q. Were there more than one report of Duke
14 University vehicles?
15 A. I believe there was. I'm not absolutely
16 certain, but I believe there was more than one report.
17 Q. Did you make any notes of this?
18 A. I didn't.
19 Q. Who was -- who did Farrell report to?
20 A. I believe he reported to my law
21 enforcement officer.
22 Q. Who was that?
23 A. Duane Denton.
24 Q. Okay. Okay.
25 So you had the Game and Fish report, what
189
1 happened next?
2 A. (No response.)
3 Q. Did you have any conversations with Mr.
4 Denton or anyone at the Refuge regarding being on the
5 lookout for Duke University people?
6 A. I had conversations with Mr. Denton,
7 advised him to be on the lookout for any trespassers,
8 whether it be Duke University, or whoever that might
9 have been.
10 Q. Doing scientific research?
11 A. Doing any trespass.
12 MS. PONZOLI: Object to the form.
13 BY MR. EARL:
14 Q. You said earlier, be on the lookout for
15 people doing scientific research, did you not?
16 MS. PONZOLI: I don't recall that answer.
17 MR. EARL: I recall it specifically.
18 MS. PONZOLI: The record speaks for
19 itself, Mr. Earl.
20 BY MR. EARL:
21 Q. Do you remember saying to Mr. Denton to be
22 on the lookout for people doing scientific research in
23 the Loxahatchee?
24 A. Yes.
25 Q. Okay.
190
1 Why were you concerned about scientific
2 research in Loxahatchee?
3 A. Because any scientific research in
4 Loxahatchee requires a permit.
5 Q. That's an absolute requirement?
6 A. Yes.
7 Q. You always imposed it since you've been
8 there?
9 A. Yes.
10 Q. There's been no exception to that since
11 you started in 1981; is that your testimony?
12 A. None that I can recall.
13 Q. Okay.
14 Have you ever authorized Water Management
15 District research in the Loxahatchee without a permit?
16 A. I sure -- without a permit?
17 Q. Yes, sir.
18 A. If I have ever authorized without a
19 permit. If I authorized it was with a permit, either
20 verbal or written.
21 Q. Oh, there are verbal permits?
22 A. I could give a verbal permit, yes.
23 Q. How often do you give verbal permits?
24 A. Very infrequently. I can't recall of any
25 of any significant nature other than a school group for
191
1 collecting shrimp at the landing, or something along
2 that line.
3 Q. You are -- do your regulations give you
4 authority to issue verbal permits?
5 A. They give me authority to issue permits.
6 Q. Has the water management personnel, since
7 you started in 1981, done any scientific research in
8 the Loxahatchee without a written permit?
9 A. Has the --
10 MS. PONZOLI: Asked and answered, I
11 believe.
12 THE WITNESS: I don't think that they
13 have. I do not know.
14 BY MR. EARL:
15 Q. Who would know if you don't know?
16 A. The Water Management District.
17 Q. Prior to 1989, were you aware of any
18 research in Water Conservation Area 1 by Mr. Dineen or
19 others without a permit?
20 A. Without a written permit?
21 Q. We'll start with written, yes.
22 A. I don't recall of any. I don't recall --
23 I can't remember all those details, Mr. Earl. I would
24 have to go back to the personnel file and look through
25 and see what permits were issued and see what research
192
1 was being done.
2 Q. But your position is you've always
3 required them from the District, correct?
4 A. When I first got there, the District was
5 doing some research that was not under permit when I
6 first got there, I think.
7 Q. And what did you do about that?
8 A. I -- the research was concluded, as far as
9 I know.
10 Q. Were you ever asked to sit down with
11 district lawyers to -- who explained to you that the
12 District owned the area, and had the right to do
13 research in there?
14 MS. PONZOLI: I'm going to object to this
15 whole line of questioning, Mr. Earl. I mean, it
16 seems to me that this is not related to your
17 SWIM challenge. It's -- I don't know if you're
18 trying to build a defense for some other action,
19 or what you're really pursuing here, but it's
20 not part of your SWIM challenge. It's not part
21 of anything that really is relevant to Mr.
22 Neely's testimony.
23 I don't mind if you find out where the
24 boundaries are. I don't mind if you find out
25 what he knows about that day, but to go into an
193
1 extensive cross-examination of every permit that
2 was ever issued or not issued is, quite frankly,
3 a form of harassment, and I object to it.
4 MR. EARL: Well, we're not going into
5 every, every permit, but the issue of use
6 permits is relevant. And denial of access and
7 denial of scientific inquiry certainly is
8 relevant.
9 MS. PONZOLI: How is this relevant, Mr.
10 Earl? Explain it to me.
11 MR. EARL: Directly relevant to Mister --
12 this witness' credibility, Ms. Ponzoli.
13 MS. PONZOLI: Oh? In what way?
14 MR. EARL: Well, he or the Department of
15 Justice have strived over the last several years
16 to prevent scientific research in the
17 Loxahatchee and to exclude scientists from
18 Loxahatchee. And it's been done under the
19 rubric that permits are necessary, and now we're
20 exploring whether permits are necessary and have
21 been required in the past.
22 MS. PONZOLI: Well, I'll allow you to go
23 for some reasonable period of time --
24 MR. EARL: Well, thank you.
25 MS. PONZOLI: -- Mr. Earl, but I -- I do
194
1 believe it is done for harassment purposes.
2 MR. EARL: I can assure you it's not.
3 MS. PONZOLI: I can assure you that you
4 and your client have done a number of things for
5 harassment purposes. But I will allow you this
6 line of inquiry because it clearly is something
7 that's very important for you personally.
8 MR. EARL: Personal interests have no
9 involvement in this, Ms. Ponzoli. What we're
10 trying to do is get some facts.
11 BY MR. EARL:
12 Q. I'd ask you to answer the question you
13 were asked.
14 A. I don't remember the question.
15 THE WITNESS: Would you read it back?
16 (Thereupon, a portion of the record was
17 read back by the court reporter.)
18 THE WITNESS: There was a meeting between
19 the District lawyers and myself and
20 representatives from my solicitor's office and
21 from the U.S. Attorney's Office concerning
22 whether the District had carte blanche to enter
23 the Refuge for research purposes.
24 BY MR. EARL:
25 Q. When was that meeting?
195
1 A. I don't recall the exact date.
2 Q. Well, within the last five years?
3 A. You apparently have it on a letter there.
4 You could tell me, I could verify it.
5 Q. In the last five years?
6 A. Yes.
7 Q. And what was the outcome of that meeting?
8 A. I don't know if there was ever an outcome.
9 I think the counsel for the District rendered an
10 opinion, but it was never exercised.
11 Q. Is it fair to say there is a dispute
12 between the District and the Fish and Wildlife Service
13 over the District's rights to do --
14 A. Over --
15 Q. -- testings?
16 A. Over the District's right to carte blanche
17 enter the Refuge, yes.
18 Q. You say carte blanche. What do you mean?
19 A. For any reason, for any reason that they
20 may determine.
21 MS. PONZOLI: I believe the record would
22 show, Mr. Earl, we were already in litigation at
23 that time with the Water Management District.
24 BY MR. EARL:
25 Q. How about prior to that meeting with
196
1 Justice there and solicitors there, was there no -- any
2 meeting prior to that, prior to the litigation?
3 A. I don't recall a meeting prior to the
4 litigation. I don't remember. I don't remember
5 exactly when that meeting took place for those folks.
6 I'd have to go back and make some -- some reference to
7 dates. As I say, there's been a lot of actions over
8 these years.
9 Q. Okay.
10 Did you state earlier that the L-39 levee
11 was outside the District boundaries, down by the
12 Hillsboro?
13 A. Outside the District boundaries?
14 Q. Outside the leased area of Loxahatchee?
15 A. No, sir. I didn't say that.
16 Q. Did I misunderstand you?
17 MS. PONZOLI: You may misremember.
18 MR. EARL: Well, I don't think so.
19 BY MR. EARL:
20 Q. I wrote down, Mr. Neely, the boundary of
21 the Refuge and leased area is on the center line of the
22 Hillsboro Canal; is that true?
23 A. No, sir, I didn't state --
24 Q. You didn't say that?
25 A. I didn't say that.
197
1 Q. Well, is there any boundary on that,
2 determined by the center line of Hillsboro Canal?
3 A. At one point in time there was.
4 Q. When was that?
5 A. Early in the lease agreement.
6 Q. Help me out here. What does early mean?
7 A. In the initial lease agreement.
8 Q. In the initial lease agreement, the limit
9 of the leased area was the center line of the canal,
10 correct?
11 A. The center line of the Hillsboro Canal,
12 that is correct.
13 Q. Okay.
14 And that was true in the area Dr.
15 Richardson was detained?
16 A. No, sir.
17 Q. Okay.
18 A. You're mixing places and times, sir.
19 Q. Okay.
20 Well, just... I don't have your mastery
21 of events like you do.
22 Where does -- where was the center line of
23 Hillsboro Canal, the boundary?
24 A. Where was the center line?
25 Q. Is that the length of the Hillsboro Canal?
198
1 A. Yes.
2 Q. And how long, when did that change?
3 A. With the amendment, one of the amendments
4 to the original licensed lease agreement. I'll have to
5 look and see what the date was that they changed.
6 Q. Was that a recent change --
7 A. No, sir.
8 Q. -- since you've been there?
9 A. No, sir.
10 Q. Before you got there?
11 A. Long before I got there.
12 Q. Okay.
13 And where is the boundary in the area
14 where Dr. Richardson was detained?
15 A. Center line of L-39 levee.
16 Q. The levee. Okay.
17 And the structure he was on, which you
18 described as S-10UP?
19 A. S-10DUP.
20 Q. All right.
21 S-10DUP is on the inner side of the levee
22 end extending out into the canal, correct?
23 A. Correct.
24 Q. Do I understand that? All right.
25 Now, is that area shown on what we've
199
1 marked as Exhibit 3?
2 A. No, sir.
3 Q. That area is not shown in any of these?
4 A. No, sir. Let me see if I can see where
5 this is here. Since this isn't labeled -- no, I don't
6 believe it's shown on any of those. That's -- we'll
7 put those with the court reporter. Those go with this
8 letter, whenever I get it back.
9 MS. PONZOLI: I'd like the record to
10 reflect, if you could make copies of those
11 exhibits rapidly and return them to Mr. Neely, I
12 would appreciate it very much.
13 BY MR. EARL:
14 Q. Mr. Neely, what are -- what are the water
15 input sources for the Water Conservation Area 1?
16 A. All of them together are the S-5A, the
17 S-5AS, Acme 1, Acme No. 1, Acme Pump No. 2. There's a
18 structure, I believe it's called -- I don't have the
19 number. I can't remember the number. It's a small
20 gravity flow structure, three of them along the east
21 side that sometimes water could come into the Refuge
22 through those. They're G-60 something, A, B and C. I
23 just can't remember the number right off the top of my
24 head.
25 Q. They come from Acme also?
200
1 A. No. They come from Lake Worth Drainage
2 District. One of them is non-functional.
3 Q. But there's three.
4 A. They're generally -- water generally goes
5 out of the Refuge, but it's very possible that under
6 certain circumstances water could come into the Refuge
7 through those three. They're -- gated box culvert is a
8 term the -- I think the District uses. Then the water
9 only goes out of the S-39 structure. And it only goes
10 out of the S-10s, and it comes in through the S-6 pump
11 station.
12 Q. Okay.
13 A. And it did come in through the SN Knight
14 pump. And there is today construction underway that
15 would allow water to come from ENR into the Refuge,
16 although I do not think the pumps have been changed
17 yet.
18 Q. Would you look at the second page of your
19 introduction on Exhibit 1, sir?
20 A. Yes, sir.
21 Q. Second paragraph, second sentence, the
22 schedule, talking about the regulation schedule, was
23 designed to achieve the following objectives.
24 One, maintaining water storage capacity on
25 the Refuge during the hurricane season.
201
1 Two, store water for irrigating nearby
2 cropland during the fall, winter and early spring.
3 Three, prevent saltwater intrusion into
4 the Biscayne aquifer by storing water for the lease
5 into coastal canal systems during the fall, winter and
6 spring.
7 Four, maintain the health of refuge
8 vegetation types by flooding all wetlands during the
9 summer and fall.
10 And five, enhance feeding opportunities
11 for waterfowl and wading birds by lowering water levels
12 in the spring so that water is concentrated in sloughs
13 and shallow ponds during the nesting season.
14 Is that an accurate statement of the
15 purposes of the regulation schedule?
16 A. In general terms, I would say that it is.
17 Q. Was there anything that's inaccurate
18 there?
19 A. No, there's nothing in here inherently
20 inaccurate about it.
21 Q. Okay.
22 Does anything need to be clarified in that
23 list?
24 A. Not to me.
25 Q. Okay.
202
1 Next page, sir. Second sentence,
2 visitation to Refuge averages 450,000 recreational
3 visits annually. Is that true?
4 A. That was true when this was done and we
5 had a concession operation.
6 Q. Okay.
7 What's the visitation now?
8 A. I would estimate, to the best of my
9 knowledge right now, that the visitation to the Refuge
10 is somewhere in the neighborhood of 200,000 or two
11 hundred -- 250,000 visitors a year.
12 Q. That would be to the headquarters area?
13 A. No, sir. That's the Refuge.
14 Q. Okay.
15 How many visitors do you have at
16 headquarters area?
17 A. Somewhere in the neighborhood of 150,000,
18 more or less. I don't know the latest figures.
19 Q. Let me ask you to turn two more pages
20 over, the sheet that's headed Arthur R. Marshall
21 Loxahatchee Wildlife Refuge.
22 A. Okay.
23 Q. Would you look that over and tell me
24 whether it's an accurate --
25 MS. PONZOLI: The whole page, Mr. Earl?
203
1 MR. EARL: Yes.
2 THE WITNESS: Whether it is accurate or --
3 BY MR. EARL:
4 Q. Whether it's accurate, truthful.
5 A. There appears to be a slight discrepancy
6 in the acreage, the acres of Everglades marsh leased.
7 Q. What is that?
8 A. I don't know which one's right or not.
9 Q. The sheet says 143,115.
10 A. One says 143,115. And I think the front
11 sheet says a hundred and forty -- let's see. Let me
12 see if I -- I'm not mistaken here. 143,085 Service
13 leases, 143,085 service leases, a slight discrepancy in
14 those acres.
15 Q. I'm not trying to pick up that kind of --
16 just generally the propositions.
17 A. Generally, you asked me was it accurate,
18 and I'm trying to tell you what I see as I read it.
19 Q. Okay. Okay.
20 A. To the best of my knowledge, it's accurate
21 in general terms as a briefing paper.
22 Q. Okay.
23 Would you go two pages over? There's a
24 diagram, compartment size.
25 A. Okay.
204
1 Q. Would you explain to me what these various
2 compartments are used for?
3 A. They're used for managing water levels for
4 migratory birds, for waterfowl use or migratory bird
5 use. All types of migratory birds.
6 Q. The upper A, which was 231 acres?
7 A. It's just a management impoundment.
8 Q. You raise and lower the water so you have
9 migratory attracted to --
10 A. Yeah. Migratory birds, not just
11 waterfowl.
12 Q. Okay.
13 Is there a schedule or something that
14 controls the levels in there?
15 A. There is a water management plan that
16 should be in those books.
17 Q. Is the same true of the lower A?
18 A. Yes.
19 Q. And what are the B compartments used for?
20 A. Same thing. Maintain habitat on the
21 portion that's owned by the federal government.
22 Maintain water levels at different times, maintain
23 different types of communities.
24 Q. Were these there when you arrived?
25 A. Yes.
205
1 Q. What was the native vegetation in the area
2 before these impoundments were built?
3 A. Generally what's there now, with the
4 exception of some encroachment of Melaleuca and
5 cattail.
6 Q. Do you have Melaleuca and cattail in your
7 managed areas?
8 A. Yes.
9 Q. What are the C units used for?
10 A. They're just small impoundments that are
11 used to manage water levels. In the past they've been
12 used -- there was some snail research done in one of
13 them when I got there, and basically they -- they've
14 just been managed at different varying water levels.
15 So we've got different types of habitat.
16 C is the area that is open to the public
17 for public use, for public viewing of waterfowl or
18 wading birds or whatever people want to come out there
19 and see, alligators.
20 Q. Where do you have the cattails in there?
21 A. C1 is almost solid cattail. There's some
22 cattails in B, some in A, some in some of the other --
23 other compartments.
24 Q. Have you done any studies of those
25 cattails?
206
1 A. Any studies?
2 Q. Yeah.
3 A. No.
4 Q. Why are those cattails there?
5 A. Probably because of water nutrients and --
6 I don't know why they're there.
7 Q. That water circulates out, does it?
8 A. No. We take care, there's a pump on the
9 north end of A that takes water out of the L-40 canal.
10 And the rest of it is basically rainfall. There's a
11 pump on the south end between C5 and C10 that pumps
12 water from the Lake Worth Drainage District canal that
13 comes directly out of the Refuge, out of L-40.
14 Q. How many acres of cattail are in those
15 compartments?
16 A. I don't have any idea.
17 Q. No one's ever studied them?
18 MS. PONZOLI: Object to the form.
19 THE WITNESS: Studied? I just -- there's
20 been no study on cattails in those compartments,
21 that's right. Probably some guesstimate of the
22 number of acres of different types of habitat in
23 there, but I don't know what it is.
24 BY MR. EARL:
25 Q. Who would have that knowledge?
207
1 A. Dr. Maffei would know that. That's in his
2 department.
3 Q. Does the fact that those are closed
4 systems, does that -- strike that.
5 Do you have measurements of nutrient
6 levels in these?
7 A. I don't think any nutrient levels have
8 been measured in there. I'm not sure on it.
9 Q. Have you, in your experience, seen
10 expansion of cattails in these compartments since
11 you've been there?
12 A. Well, they're managed extensively, but
13 overall, I would have to say yes, I've seen cattails
14 expand in those compartments.
15 Q. Significant expansion?
16 A. Significant's kind of an arbitrary, but
17 there's -- there's been an expansion. I don't know
18 what you would call, whether it would be termed
19 significant or not. Some of them, yes, some of them,
20 no.
21 Q. How much Melaleuca is in there?
22 A. There's a very few trees in through there.
23 There's been some that's been eliminated, but there's
24 been a few -- a few sprigs that have come up in
25 different places.
208
1 Q. Would the cattails in here have the same
2 impact on wildlife that you've described to me earlier
3 in terms of loss of habitat and food?
4 A. They could.
5 Q. Well, do they?
6 A. Depending on the density.
7 Q. Well, in your observations, do these
8 cattails have the same impact?
9 A. Some impoundments have more cattails than
10 the others. Those are the impoundments that have less
11 wildlife use than those which don't have as much
12 cattails.
13 Q. Does the Loxahatchee have any plan to deal
14 with the cattails? Does that -- let's start off within
15 these compartments.
16 A. We deal with those in compartments that
17 are centered around public use. In order to keep an
18 area open for public use, we sometimes treat the
19 cattails with chemicals.
20 Q. What kind of chemicals do you treat them
21 with?
22 A. Round Up.
23 Q. You told me earlier the only ones open to
24 public use are the -- were the C ones, right?
25 A. Yes, C1 through 10.
209
1 Q. You use Round Up to kill the cattails?
2 A. Yes.
3 Q. How often have you used that since you've
4 been there?
5 A. I don't recall, Mr. Earl. We've used it
6 numerous times.
7 Q. Has it been used in the B compartments?
8 A. I don't recall that it has.
9 Q. Has it been used in the A compartments?
10 A. I don't recall that it has for cattail in
11 there.
12 Q. Either you don't recall, or to your
13 knowledge it hasn't been?
14 A. To my knowledge, it hasn't been.
15 I -- I don't recall.
16 Q. Okay.
17 (Thereupon, a discussion was held off the
18 record.)
19 BY MR. EARL:
20 Q. Mr. Neely, does the Loxahatchee have, as
21 part of its management plan or otherwise, a remediation
22 plan to deal with, to remove cattails?
23 A. Only in the managed impoundments.
24 Q. And what is that program, the Round Up
25 program you told me about?
210
1 A. Well, we use Round Up on an as-needed
2 basis.
3 Q. Is there a program other than that in the
4 impoundments other than using Round Up?
5 A. No.
6 Q. You don't burn them?
7 A. We do prescribe burning, but for all
8 vegetation in there to reduce vegetation in those
9 impoundments.
10 Q. And you burn the cattails?
11 A. Yes.
12 Q. Any other measures that are used?
13 A. We've used something called a cookie
14 cutter, a trail cutter that we've tried to control
15 cattail with, but we can't.
16 Q. What's a cookie cutter or trail cutter?
17 A. It's a machine that was built by Lantana
18 Boatworks that has two big propeller blades on front of
19 it that chop, chop everything up, all vegetation, not
20 just cattail, but all the vegetation. It's actually
21 used as a trail cutter for our canoe trail, to clean
22 out our canoe trail when vegetation grows in it, and
23 it's used -- it was used, the company came out to try
24 to do a demonstration for a video they were making to
25 demonstrate the use of the cookie cutter in cutting
211
1 through thick vegetation.
2 Q. And does it work?
3 A. Well, it does temporarily. It will open
4 an area up, but it eventually grows back unless some
5 other measures are taken.
6 Q. All right.
7 Round Up, prescribed burning and cookie
8 cutter. Any other devices used?
9 A. No.
10 Q. And do these devices allow you to control
11 the cattails in the impoundment area?
12 A. On a somewhat limited basis. If you
13 don't -- if you don't do maintenance, continued
14 maintenance, it tends to grow back.
15 Q. Okay.
16 How about over in Compartment D, did you
17 also use these methods?
18 A. No, we have not used anything in
19 Compartment D. I think there has been some Melaleuca
20 control in Compartment D and some Brazilian pepper
21 along the levees, but there's no cattail in there to
22 speak of.
23 Q. Is there a reason why prescribed burning,
24 the cookie cutter, or other methods are not used to
25 control cattails in other areas of Loxahatchee?
212
1 A. Other areas being the --
2 Q. Fringe of canals, the areas you've
3 described this morning.
4 A. They're just -- the District uses -- I
5 don't know whether they control cattail along the edge
6 of the canal. I think their target species are water
7 lettuce and water hyacinth and prairie grass. I don't
8 think there's a program to control cattail.
9 Q. The Loxahatchee doesn't have one, correct?
10 A. No, sir.
11 Q. Is there a reason for that?
12 A. Other than the fact that it would be just
13 an enormous program, it would be so expensive and the
14 results would be very, very questionable.
15 Q. Do you have any studies to show the
16 results being questionable?
17 A. Other than the fact that we already know
18 that where we've -- where we do these things cattails
19 reappear.
20 Q. Since 1981, has the Loxahatchee made any
21 effort to prescribe burn, harvest or treat the cattail,
22 the 8,000 acres of cattails you've told me about?
23 A. Not intentionally, no. The fire that
24 occurred in late 1990 burned some of that area, but
25 generally speaking, it's all resprouted.
213
1 Q. Would you go over the page behind on
2 Exhibit 1, the page behind the topographic map, sir?
3 A. Yeah.
4 Q. And can you tell me what this is, entitled
5 briefing statement?
6 A. It's a briefing statement.
7 Q. Is this prepared under your direction?
8 A. Yes.
9 Q. And it's on Melaleuca?
10 A. Yes.
11 Q. Okay.
12 And under status it states approximately
13 20,000 acres of Refuge are moderately to heavily
14 infested with Melaleuca. How do you pronounce --
15 A. Quinquenervia, I'm not sure on the correct
16 pronunciation.
17 Q. And it continues to spread. Is that an
18 accurate figure in '91, as far as you know?
19 A. To the best of my knowledge it is.
20 Q. Has it expanded since then?
21 A. I -- I can't answer that. I do not know.
22 Q. Who would know?
23 A. Dr. Maffei may know. I don't know whether
24 we've done another calculation of it or not since that
25 time.
214
1 Q. Well, as you go around and observe the
2 Refuge, do you observe the incidence of Melaleuca?
3 A. I -- I see Melaleuca when I drive around,
4 but at the same time we have a program going for
5 control of Melaleuca.
6 Q. Okay.
7 A. So I don't know which one's offsetting the
8 other.
9 Q. Do you have any observations whether
10 there's more or less Melaleuca than there were two
11 years ago?
12 (Thereupon, a discussion was held off the
13 record.)
14 THE WITNESS: Within the Refuge, I'd say
15 more.
16 BY MR. EARL:
17 Q. Is the rate of expansion within the Refuge
18 for Melaleuca faster than cattail?
19 A. I can't answer that. I do not know.
20 Q. Again, would that be Dr. Maffei?
21 A. Yes.
22 Q. Which do you view as a bigger threat to
23 the Everglades, Melaleuca or cattail expansion?
24 MS. PONZOLI: Object to the form of the
25 question.
215
1 THE WITNESS: I can't compare those as
2 either bigger or greater threats because the
3 cattail is caused by something else and
4 Melaleuca is a threat within its own.
5 BY MR. EARL:
6 Q. Well, which is displacing more area, more
7 habitat?
8 A. Which has displaced? I don't remember.
9 Q. Yeah.
10 A. I don't know the exact acreage of either
11 cattail or the Melaleuca in the Refuge. I could not
12 compare them without exact figures.
13 Q. So you have no idea which, as we sit here,
14 refuge manager, which, whether cattail or Melaleuca
15 have displaced more native vegetation?
16 A. I can't, I couldn't answer that without
17 some definitive look at a map or some acreage figures
18 from the satellite image, or something. I do not -- I
19 do not know.
20 Q. Tell me specifically, what would you do --
21 what steps would you take to be able to answer that
22 question?
23 A. I would have to have -- probably
24 commission a research project to determine accurately
25 how much Melaleuca is on the Refuge. As far as
216
1 displacement, Melaleuca is a little bit different.
2 When it says it's moderately, moderately infested, that
3 could mean a tree every -- two or three trees every
4 acre, which doesn't displace very much there, but when
5 you say you have an acre of cattail, you've displaced
6 an entire acre.
7 Q. If it's of sufficient density, correct?
8 A. (No response.)
9 Q. If the cattail is of sufficient density;
10 is that correct?
11 A. That's correct.
12 Q. You told me you don't know what that
13 density was, correct?
14 A. Other than dense, no, that's it.
15 Q. Okay.
16 Does Melaleuca ever get dense enough to
17 exclude other --
18 A. Yes.
19 Q. It outcompetes other species, doesn't it?
20 A. Yes.
21 Q. What species does it compete with in
22 Loxahatchee?
23 A. All species.
24 Q. All right.
25 How does it fair against cattail?
217
1 A. I don't think they grow in the same
2 habitat. I'm not sure what you're getting at.
3 Q. Well, you told me Melaleuca competes with
4 all species, and I'm asking how it competes with
5 cattails.
6 MS. PONZOLI: Do you understand the
7 question?
8 THE WITNESS: Yeah. Vaguely, but it's a
9 question that you cannot answer.
10 BY MR. EARL:
11 Q. Okay.
12 Let me rephrase the question.
13 Do Melaleuca and cattail compete for the
14 same areas?
15 A. No.
16 Q. Okay.
17 Other than commission a research project,
18 you said you'd be unable to determine which trees have
19 displaced more habitat.
20 A. To exactly determine that, yes.
21 Q. Could you get a gross figure, a gross
22 estimate by probably examination of current aerial
23 photos or maybe even satellite images?
24 A. I'm not sure. Satellite images won't show
25 single Melaleuca trees. Nor, in some cases, single
218
1 stems of cattail for that matter.
2 Q. Okay.
3 Has that work been done?
4 A. No.
5 Q. No?
6 A. No. I think the Water Management District
7 may have done some Melaleuca survey or -- I can't
8 remember who did that. But there is an evaluation of
9 the extent of Melaleuca infestation in the Water
10 Conservation Area being done by the Water Management
11 District, but I'm not aware of the results of that yet.
12 Q. You have no map showing the location of
13 Melaleuca?
14 A. Oh, we have maps that generally show the
15 infestation of Melaleuca.
16 Q. You've never had anyone compute an
17 acreage?
18 A. No, sir. As I said, I do have a single
19 tree on one acre. You can have two trees on one acre,
20 and it -- it varies as to what the density might be on
21 Melaleuca.
22 Q. Who computed the 20,000 acres of Refuge
23 moderately to heavily infested?
24 A. I would say that probably Dr. Maffei did
25 that.
219
1 Q. Okay.
2 He --
3 A. I'm not sure. I'm not sure he computed
4 that or he estimated that.
5 Q. Okay.
6 He, and not you, would be expert on that,
7 correct?
8 A. On number of acres infested?
9 Q. Yes.
10 A. Yes.
11 Q. And he, not you, would be expert regarding
12 relative threats of cattails versus Melaleuca; is that
13 true?
14 MS. PONZOLI: Object to the form.
15 THE WITNESS: From a standpoint he would
16 give me a biological opinion, I'm sure that --
17 I'm sure that's the way that would work as to
18 which one is a greater threat at any given
19 moment.
20 BY MR. EARL:
21 Q. From a policy standpoint, have you ever
22 made the judgment as to which is a greater threat?
23 A. No, I sure haven't.
24 Q. Is there a reason for that?
25 A. Well, they're -- they're two different
220
1 subjects. One is derived from one source and one is
2 derived from another source. They're both -- the
3 cattail is only a symptom of the threat to the
4 Everglades. What's -- the Melaleuca is an actual
5 entity within itself that is taking over habitat.
6 Q. What are the adverse effects of Melaleuca?
7 A. Adverse effects?
8 Q. On the Refuge.
9 A. That it occupies native Everglades
10 habitat. That, based on what I can read from various
11 literature concerning Melaleuca, is that it's a high
12 water rate user evapotranspirates quite a bit of water.
13 Q. More than cattail?
14 A. I don't know the technical question. It's
15 based on information I've read concerning Melaleuca in
16 scientific journals. I can't give you a specific
17 quote, but Melaleuca is also a respiratory irritant to
18 some people. It is an extreme fire hazard in certain
19 circumstances particularly close proximity to houses.
20 Q. Is that because of the oil?
21 A. Yes. The fact the way it burns,
22 the oil in the paper bark. And it's utilized very
23 infrequently by wildlife for anything other than
24 roosting or perching.
25 Q. Why is it that?
221
1 A. Well, there's no food value, there's no --
2 it's just not a -- not a plant that's utilized.
3 Q. Am I correct in understanding that it has
4 a tendency to -- to dry out an area too?
5 A. It could dry out an area, yes.
6 Q. Is that one reason?
7 A. Under -- well, under certain
8 circumstances, it could. It depends on how you're
9 managing, say around the -- around a stand.
10 Q. Isn't that, in fact, one of the reasons
11 the Melaleuca was originally introduced?
12 A. I think that's one objective of that, but
13 I don't think it succeeded.
14 Q. What habitat vegetation types would the
15 Melaleuca be replacing?
16 A. It could replace tree island habitat. It
17 could, in some cases, replace sawgrass habitat if it
18 got a foothold started under the right circumstances.
19 I've seen isolated trees and wet prairies where they
20 got started that could, I guess, under the right
21 circumstances could ultimately replace wet prairie
22 habitat.
23 (Thereupon, Mr. Green entered the room.)
24 BY MR. EARL:
25 Q. On the -- under department position on the
222
1 briefing statement, on your -- the briefing statement,
2 the last sentence, that paragraph states this tree,
3 referring to Melaleuca, is a serious threat to the
4 Everglades. Do you agree with that?
5 A. Yes.
6 Q. Do you also agree under the issue
7 paragraph, the second sentence there, it is well
8 adapted to the wetlands of South Florida and rapidly
9 displacing native freshwater marsh communities?
10 A. In general I could agree with that.
11 Q. Do you disagree with it at all?
12 A. No.
13 Q. Okay.
14 I direct your attention, next page of your
15 briefing statement, sir, or the next briefing
16 statement. I guess these are separate, aren't they?
17 A. Yeah. These are separate briefing
18 statements.
19 Q. Okay.
20 This is entitled mercury contamination of
21 fish caught in Water Conservation Areas?
22 A. Yes.
23 Q. Who prepared this? This is prepared under
24 your direction?
25 A. Yes.
223
1 Q. Okay.
2 Is that accurate as you understand it?
3 A. As I understand the data was -- was data
4 utilized, some of it, from the Department of
5 Environmental Regulation and from HRS based on a
6 brochure they put out.
7 Q. Do you have any subsequent information
8 which would change your assessment of the mercury
9 issue?
10 A. No.
11 Q. Do you have any opinions as to the source
12 of mercury in fish caught in Water Conservation Areas?
13 A. Well, that's a technical question. I
14 have, based on what I -- I know, I would have an
15 opinion that it could be any number of things.
16 Q. But you don't have any scientific
17 conclusion or opinion, do you?
18 A. I do not have a scientific conclusion of
19 the origin of mercury, no.
20 Q. Okay.
21 A. If I did, I could probably get rich.
22 Q. What -- what work has been done regarding
23 mercury, or is ongoing regarding mercury in
24 Loxahatchee?
25 A. There's been some fish samples taken, and
224
1 I'm not sure whether there has been any bird samples
2 taken or not, but I believe there may have been during
3 Work Order 32, that some bird samples were taken.
4 Q. Who took the fish samples?
5 A. Florida Game and Freshwater Fish
6 Commission has taken some samples with our concurrence
7 and Fish and Wildlife Service has taken some samples
8 with our concurrence. And, in fact, there's a booklet
9 that just came out, just has -- just come out that I
10 might need to -- I don't know whether they got a copy
11 or not. It's in those boxes. It's in the -- those
12 boxes.
13 MS. PONZOLI: It was provided to them if
14 provided in those boxes.
15 THE WITNESS: It was in those boxes. I'm
16 trying to remember when it came out before you
17 got the boxes or since we've been gone, but it's
18 in one of those boxes.
19 BY MR. EARL:
20 Q. You're referring to boxes over your
21 shoulder which contain what, sir?
22 A. The documents, my documents that were
23 requested to be produced in my deposition.
24 Q. Which were produced prior to this?
25 A. Yes, these are the ones, Mr. Earl, that
225
1 were made available.
2 Q. Those were made --
3 MS. PONZOLI: Made available to you.
4 MR. EARL: In Miami?
5 MS. PONZOLI: Made available now.
6 BY MR. EARL:
7 Q. And there's a booklet in there on mercury?
8 A. Yes.
9 Q. By whom?
10 A. By the FWS.
11 Q. Brand new booklet?
12 A. Yes.
13 Q. On mercury in Loxahatchee?
14 A. On some samples that -- conclusion of some
15 samples that were taken in Loxahatchee, some fish
16 samples.
17 Q. What were those conclusions, as you
18 recall?
19 A. That mercury levels were still high, in
20 general.
21 Q. Was any attribution given for that?
22 A. No.
23 Q. So when were the Game and Fish samples
24 taken that you're talking about?
25 A. I don't recall, Mr. Earl. It's been
226
1 sometime ago that Game and Fish has taken samples. I
2 don't know whether FWS took a group of samples back
3 sometime ago, but there used to be a program called the
4 National Pesticide Monitoring Program that was run by
5 the Vero Beach office or by that division, not
6 necessarily that office, but by that division. I don't
7 know whether they sample for mercury or not.
8 Q. Okay.
9 We have got Game and Fish sampling
10 sometime ago?
11 A. (Shakes head up and down.)
12 Q. We have the FWS national pesticide mercury
13 sampling. When did that occur; sometime ago?
14 A. That, the national pesticide sampling
15 program was in effect when I moved here, when I moved
16 to Loxahatchee and became manager. And it was
17 discontinued sometime later, but Game and Fish took
18 their samples -- I can't recall the exact time, but I'd
19 say somewhere within the last three to five years.
20 Q. Game and Fish took their samples?
21 A. Yeah. Took samples for us, a cooperative
22 program for sample collection and mercury
23 determination.
24 Q. Game and Fish took samples in the last
25 three to five years?
227
1 A. Yes, if I'm remembering correctly.
2 Q. As part of this national pesticide?
3 A. No, no. The national pesticide monitoring
4 program was probably twelve -- ten to twelve years ago.
5 Q. Okay.
6 A. And I'm -- I think that program has been
7 discontinued, but it's in another division, so I'm not
8 sure of the status of it.
9 Q. Is that sampling program ongoing by Game
10 and Fish --
11 A. No.
12 Q. When did it end, as you recall it?
13 A. Well, it was just a one or two time
14 sample. I can't remember whether they did sampling
15 twice or they did sampling once.
16 Q. Now, this is a separate category that Game
17 and Fish does for themselves, their earlier work you're
18 talking about, correct?
19 A. I mean the Game and Fish Commission took
20 sampling on the Refuge either once or twice for
21 mercury. Now, that's the only samples.
22 Q. That's the only time Game and Fish has
23 taken mercury samples on the Refuge?
24 A. That I'm aware.
25 Q. Best estimate of when they did that?
228
1 A. Three to five years ago.
2 Q. Okay.
3 Who else has taken mercury samples in the
4 Refuge?
5 A. U.S. Fish and Wildlife Service.
6 Q. When was that done?
7 A. Within the last five years.
8 Q. Within the last year?
9 A. No, it's not within the last year. It
10 takes some time to run those, and the results are in
11 that booklet.
12 Q. The results of Fish and Wildlife sampling
13 in Loxahatchee are also in the booklet?
14 A. That's what's in that booklet, a result of
15 Fish and Wildlife Service samples in Loxahatchee.
16 Q. Is that a Fish and Wildlife Service
17 booklet?
18 A. Yes. You asked me a while ago.
19 Q. Well, you told me a little while ago
20 you --
21 A. It was prepared by the Fish and Wildlife
22 Service.
23 Q. Okay. You're right. You're right. I
24 misrecalled that.
25 Any other sampling that you're aware of
229
1 that's been done on mercury in Loxahatchee?
2 A. (No response.)
3 Q. When I ask you these questions throughout
4 your deposition, if you're aware of sampling which was
5 done which you're under instruction not to disclose, I
6 want you to tell me you are under instruction not to
7 disclose --
8 A. I'm not under any instruction not to
9 disclose anything.
10 Q. Okay.
11 Were you aware of any other mercury
12 sampling that's been done?
13 A. I'm not sure that some of the peat cores
14 that were taken by the Work Order 32 group and maybe by
15 some that was taken by the Water Management District
16 under recent permit, I'm not sure whether those
17 included mercury sampling or not.
18 Q. The water management -- under recent
19 permits, do you mean the Ramesh Reddy related work for
20 which the permit was issued to Sue Newman?
21 A. No permit was issued to Sue Newman. It
22 was issued to the South Florida Water Management
23 District and she signed it as their agent.
24 Q. And you believe some mercury work was
25 done?
230
1 A. I don't know.
2 Q. Cores?
3 A. I said I did not know if mercury work was
4 done. I knew she did some peat cores, but I'm not sure
5 what for. I'd have to look back and look at the permit
6 and see.
7 Q. Who would know that?
8 A. Sue Newman would.
9 Q. Is Dr. Maffei more knowledgeable about
10 that than you?
11 A. It's probably he can recall it better than
12 I can.
13 Q. Why is that; he's younger?
14 MS. PONZOLI: Oh, come on, Mr. Earl.
15 MR. EARL: Well, I'm trying to --
16 MS. PONZOLI: Let's not be personally
17 insulting.
18 THE WITNESS: Because I have many, many
19 other duties than to -- than to memorize --
20 BY MR. EARL:
21 Q. Okay.
22 A. -- technical detailed data, Mr. Earl.
23 Q. Okay.
24 We'll go through the materials, if that
25 would be helpful for you.
231
1 We have Newman's permit, we have some
2 mercury sampling that might have done on Work Order 32,
3 we have Fish and Wildlife Service work that's now in
4 the booklet, and we have a Game and Fish Commission
5 three to five years ago. Any other mercury related
6 work?
7 A. Not that I can recall offhand, Mr. Earl.
8 Q. Okay.
9 A. There may be some older data back in
10 files, but I don't think mercury became an issue until
11 after I came here.
12 Q. Dr. Ron Jones doing anything on that in
13 Loxahatchee?
14 A. On mercury?
15 Q. Yes.
16 A. I don't think we have any contract with
17 Dr. Jones to do mercury studies.
18 Q. Has he been in to do any mercury studies,
19 to your knowledge?
20 A. Not to my knowledge.
21 Q. Would you be aware of that if he did?
22 A. I'm sure that I would.
23 Q. Okay.
24 MS. PONZOLI: Mr. Earl, Mr. Neely may not
25 be aware of the data collections that you're
232
1 doing that Dr. Jones may be duplicating.
2 MR. EARL: I'm sorry. I didn't hear.
3 MS. PONZOLI: Mr. Neely may not be aware
4 of the data collections that your clients are
5 doing and all the different sampling that
6 they're doing. I can't remember, but it seems
7 to me that you requested permission to do
8 mercury work among that. And certainly Dr.
9 Jones, to the extent he duplicates what you do,
10 who would have the opportunity to duplicate
11 that, I frankly don't know. I have not followed
12 what's being done there.
13 THE WITNESS: Yeah, there are --
14 MS. PONZOLI: I'm simply adding to the
15 record you may be doing work mercury work. He
16 may be duplicating what you're doing. I do not
17 know, but Mr. Neely may not know about it.
18 MR. EARL: Okay.
19 MS. PONZOLI: There's sampling allowed
20 under a court order by the Sugar Cane League,
21 and I don't know what that sampling is. I don't
22 know what's been done samples.
23 BY MR. EARL:
24 Q. Okay.
25 Is this briefing statement we're looking
233
1 at on mercury, is this still accurate, as you
2 understand the situation?
3 MS. PONZOLI: The entire briefing
4 statement?
5 MR. EARL: It's one page.
6 THE WITNESS: Just the mercury.
7 MS. PONZOLI: Oh. I'm sorry.
8 THE WITNESS: Well, it was last dated near
9 two years ago. I would imagine that could, it
10 could be updated, use new data that's just been
11 published.
12 BY MR. EARL:
13 Q. Other than that, is it accurate?
14 MS. PONZOLI: You should read it over.
15 THE WITNESS: As far as the technical
16 details, Mr. Earl, I can verify that those
17 technical details are accurate, other than a
18 typo there, without comparing it as far as the
19 statement itself on July the 2nd of 1991 it was
20 probably the most accurate data we could have.
21 BY MR. EARL:
22 Q. Okay.
23 A. That's the best I can answer it.
24 (Thereupon, the document was marked
25 Plaintiff's Exb. No. 5 for Identification.)
234
1 (Thereupon, a discussion was held off the
2 record.)
3 MR. EARL: What's been marked as No. 4 is
4 the booklet you're talking about?
5 MS. PONZOLI: No. 5 you mean.
6 MR. EARL: That's what it is, Ms. Ponzoli?
7 No. 5?
8 THE REPORTER: (Shakes head up and down.)
9 THE WITNESS: Yes, this is the booklet I'm
10 referring to.
11 I have not read that booklet. It just
12 came in my office and I have not even made
13 distribution to other agencies on that booklet
14 yet.
15 BY MR. EARL:
16 Q. Okay.
17 Mr. Neely, what water quality sampling is
18 ongoing right now in the Refuge?
19 A. (No response.)
20 Q. What programs, sampling monitoring?
21 A. Well, there's the sampling that's being
22 done by the Sugar Cane League. I assume that's water
23 quality sampling. The duplicate samples that are being
24 taken under that order.
25 Q. By Dr. Jones?
235
1 A. By Dr. Jones or by a member of my staff in
2 his stead when he's not available.
3 Q. Okay.
4 A. And outside of that, there's contracts
5 with FIU to do some of the baseline studies for
6 nutrients in the sampling within the parameters of the
7 settlement agreement.
8 Q. That's pursuant to the TOC?
9 A. Yes.
10 Q. Is that contract finalized?
11 A. It's in effect.
12 Q. You designated Dr. Jones as the sole
13 source for that contract?
14 A. I believe we did.
15 Q. Who is we? Did you make that decision or
16 did --
17 A. My contracting officer signed that
18 contract, Mr. Earl.
19 Q. Did you make the decision?
20 A. No. My contracting officer made that
21 decision.
22 Q. Okay.
23 Who is he?
24 A. Her name is Ruth Slette, S L E T T E.
25 Q. Could you explain to me what a sole source
236
1 decision is?
2 A. Is that the work you want done is not
3 available from any other source under the terms that
4 you want it done and within its time frames.
5 Q. Did you participate in the decision, Miss
6 Slette talk to you about that?
7 A. Miss Slette and I discussed the contract
8 and the funding for the contract to -- initially, and
9 I'm sure that we discussed why or discussed the
10 selection of FIU. I believe the contract is with FIU
11 and not Dr. Jones personally.
12 Q. So Ms. Slette determined that is only the
13 university in Florida capable of doing this work?
14 MS. PONZOLI: Object to the form.
15 BY MR. EARL:
16 Q. I'm trying to understand.
17 A. I don't know what Ms. Slette determined in
18 issuing the contract.
19 Q. You've written some letters on that,
20 haven't you?
21 A. Yes.
22 Q. Why did -- why did you have to make a
23 determination of sole source? Is there a federal
24 competitive bidding statute?
25 A. You're out of my league now. You're into
237
1 contract law. I'm not a contracting officer.
2 Q. You have no idea, as you sit here as
3 refuge manager, why there had to be a sole source
4 determination on this contract with FIU?
5 A. Why it had to be?
6 Q. Yeah?
7 A. I would have to go back and review the
8 files on that, sir.
9 Q. Would -- who would be most knowledgeable
10 about that?
11 A. As to why FIU was a sole source?
12 Q. Yeah.
13 A. Since the contracting officer is the
14 person that selected it or that signed the contract, I
15 would assume that the contracting officer was the one
16 that determined that it was a sole source.
17 Q. And that would be who?
18 A. Ruth Slette.
19 Q. Okay.
20 A. She has to make that determination in
21 order to sign that contract, I would assume.
22 Q. Do you have any other contracts with Dr.
23 Jones?
24 MS. PONZOLI: Object to the form.
25 THE WITNESS: No, sir.
238
1 BY MR. EARL:
2 Q. Do you have to, without regard to the
3 technical details of the law, do you have to put out
4 proposals for bids? Is that your practice in
5 Loxahatchee?
6 A. It's -- for bids of what nature, sir?
7 Q. Do you send out requests for proposals,
8 RFPs?
9 A. Sometimes our regional office does, our
10 contracting office. I don't have a contracting office
11 at -- in the Loxahatchee. My contracting office is
12 located in Atlanta, Georgia.
13 Q. Where is Ms. Slette working?
14 A. Atlanta, Georgia.
15 Q. So Ms. Slette would have conducted the
16 investigation to determine that FIU or Dr. Jones were
17 the sole source for that contract; is that correct?
18 A. Ms. Slette may have contacted FIU based on
19 recommendations that we sent forth as to what was
20 needed, who we knew was the best equipped to do it.
21 Q. Okay.
22 We have the Sugar Cane League work
23 pursuant to hearing officer's order. We have the FIU
24 contract for baseline studies, pursuant to TOC. What
25 other water quality related monitoring or studies are
239
1 being done in Loxahatchee at the present time?
2 A. I'm not sure if the District has finished
3 the special use permit that was issued to them. I'm
4 not sure what the -- without going back and reviewing
5 the permit as to whether that dealt with water quality.
6 Q. You talking about Sue Newman's permits
7 now?
8 A. Right. That could still be in effect. I
9 don't know whether they've completed that permit,
10 completed the requests for that permit or not.
11 And the only other thing would be the
12 establishment of some rainfall collection stations.
13 Q. Who established those?
14 A. We did. The Refuge.
15 Q. And who is responsible directly for those?
16 A. Dr. Maffei.
17 Q. When were those established, sir?
18 A. Just recently within the years.
19 Q. Within the year?
20 A. Within the year.
21 Q. Can you give me a better -- within the
22 last six months?
23 A. Within six months.
24 Q. Okay.
25 A. It's part of TOC.
240
1 Q. How many substations have been
2 established?
3 A. I think there's four.
4 Q. Where are they?
5 A. One's located at headquarters area. One
6 is located in the -- I'm going to give you general
7 locations without being able to use a map. In the
8 general vicinity of the 1-7 gauge, in the general
9 vicinity of the 1-9 gauge, and somewhere in the mid
10 point on the west side of the Refuge.
11 Q. Mid point on the west side of the Refuge
12 relative to what?
13 A. Well, relative to the north and south and
14 some ways there from the L-7 canal. Some ways east of
15 the L-7 canal.
16 MR. EARL: Where's a map?
17 BY MR. EARL:
18 Q. How far in it from the L-7 canal, would
19 you estimate?
20 A. I don't know the exact distance, sir.
21 Q. Who sited this?
22 A. Dr. Maffei sited this.
23 Q. Okay.
24 And what is the nature of those four
25 collection stations?
241
1 A. They're wet and dry fall collectors.
2 Q. What are they designed to do?
3 A. It's a two bucket system. One bucket is
4 open, one is not when it's not raining, another bucket
5 is open when it is raining.
6 Q. Is any other scientist working on this
7 project with Dr. Maffei?
8 A. Yes, Dr. Jones. Secondary biologist by
9 the name of Sue Jewel who is on my staff. And I
10 believe the biologist, Fred Borerman probably knows
11 where they're located and helped establish them, or
12 install them, not establish.
13 Q. What is the nature -- is it a finite
14 research program? Is it set up for a period of time?
15 Is it permanent stations?
16 A. Yeah, they're permanent. That's right.
17 Established as a long term station. I don't -- I don't
18 want to use the word permanent, but it's long term
19 station.
20 Q. Is there a plan of study for a proposal
21 with regard to this?
22 A. I don't know whether Dr. Maffei has a
23 written -- written plan for that or not. He would
24 know. I know for a fact that they were purchased and
25 they were established and installed, and to the best of
242
1 my knowledge, they're in operation now.
2 Q. Are you sharing that data with the Water
3 Management District?
4 A. We haven't collected any data to put
5 together any -- in any kind of report yet, but I would
6 assume we would.
7 Q. And the person to ask about a written plan
8 would be Dr. Maffei?
9 A. Yes.
10 Q. You haven't seen any results from the
11 collection?
12 A. No, I haven't. I don't know whether
13 they -- they've analyzed any results from those
14 collections. I know they have made some collections
15 from the buckets, but I do not know since I've -- I've
16 been gone ten days or so. I do not know whether
17 they've gotten any sample data return yet or not.
18 Q. Who is doing the analysis; Dr. Jones?
19 A. For -- for the water, yes, Dr. Jones is
20 doing that analysis part of the contract.
21 Q. What parameters, what chemical parameters
22 are they examining the water for?
23 A. I don't know all the nature. I do know
24 phosphorus is one of them.
25 Q. Any other water quality sampling or
243
1 monitoring programs ongoing at the Refuge that you're
2 aware of?
3 A. Well, the Water Management District has a
4 sampling program when, every time the pumps crank up,
5 they take samples. Lake Work Drainage District
6 probably has some type of sampling program, but I'm not
7 sure what's required under their permit to pump into
8 the Refuge with the District.
9 Q. Which District sampling program are you
10 talking about?
11 A. The one -- it's ongoing, has been ongoing
12 for years at the pump stations.
13 Q. Are you talking --
14 A. S-5A and S-6.
15 Q. You talking about the interior marsh
16 locations?
17 A. No. I'm talking about at the pump station
18 S-5A and S-6. They have a sampling technique that when
19 the pumps turn on, they take samples.
20 Q. Who in your organization reviews those
21 data?
22 A. I'm not sure that we get detailed data on
23 that. There's a summary of -- summary that's put out
24 monthly by the Water Management District, but I'm not
25 quite sure whether it shows the details of that
244
1 sampling. And I'm not sure we get a -- anything to
2 review on a regular basis.
3 Q. What about the 16 interior marsh stations,
4 are you familiar with those?
5 A. Yes.
6 Q. Were they sited during your tenure there
7 at the District?
8 A. No. They were established before I
9 arrived.
10 Q. Okay.
11 How are those being sampled, by whom?
12 A. Well, I understand the Sugar Cane League
13 is sampling some of those, and I would imagine that Dr.
14 Maffei and Dr. Jones are sampling.
15 Q. You're aware, are you not, that there was
16 no sampling on those stations after the settlement
17 agreement until the Sugar Cane League asked to begin
18 sampling?
19 A. I'm generally aware of that. I don't
20 think there's been any sampling -- sampling program
21 until just recently when we entered into the contract,
22 until we started doing sampling by -- with the Sugar
23 Cane League.
24 Q. Until you entered into a contract with?
25 A. With FIU.
245
1 Q. Is the interior marsh sampling station
2 part of the contract with FIU?
3 A. I think that they may be.
4 Q. Who administers that contract; Atlanta?
5 A. In what terms?
6 Q. Well, in terms of performance and
7 reviewing the work and quality of work.
8 A. I would probably be the ultimate person to
9 administer that contract and to certify to the
10 contracting officer that the terms of the contract were
11 met.
12 Q. Okay.
13 Any other sampling going on, other than
14 what you've described?
15 A. No, none that I can recall offhand.
16 Unless there's something minor, I can't recall
17 anything.
18 Q. Okay.
19 Any ongoing studies -- strike that.
20 Are there any reports or studies in which
21 the field work has been compiled that you're expecting
22 results on or reports on?
23 A. None that's been completed that we haven't
24 received reports. I don't think there's anything
25 pending. Work Order 32 has been wrapped up and
246
1 completed. And the only other major study that we have
2 going is the contract with FIU.
3 Q. The cooperative Fish and Wildlife unit at
4 the University of Florida, are they doing any work
5 right now?
6 A. No, not on the Refuge.
7 Q. What is your understanding of the nature
8 of the Fish and Wildlife Service cooperative unit at
9 the University of Florida?
10 MS. PONZOLI: Object to the form.
11 THE WITNESS: In what vein? What do you
12 mean, the nature of it?
13 BY MR. EARL:
14 Q. Who funds it?
15 A. Generally they're -- when they do a
16 project for somebody, for example for me, we funded
17 them to do the project.
18 Q. What is the cooperative Fish and Wildlife
19 unit as you understand it?
20 A. It's a unit established in cooperation
21 with the Fish and Wildlife Service at particular
22 universities, and these are -- there are several of
23 these throughout the U.S., to facilitate research and
24 to help train potential biologists and get research
25 projects done and to facilitate the students doing
247
1 either master's or Ph.D. degrees.
2 Q. Dr. Richardson up there and Dr. Kitchens,
3 you're aware of those two, correct?
4 A. Yes.
5 Q. Are they on the faculty of the University
6 of Florida, as you understand it?
7 A. Yes.
8 Q. And when you funded the study of Work
9 Order 32 you pay the university's overhead and --
10 A. Yes.
11 Q. -- normal --
12 They're not at any time employees of the
13 Fish and Wildlife Service?
14 A. Dr. Kitchens is a full-time employee of
15 Fish and Wildlife Service. Dr. Richardson may have
16 been a per diem type employee. I don't know what --
17 how they fund Dr. Richardson. I know some of the
18 graduate students were paid by the University and some
19 by the Fish -- by the coop unit.
20 Q. But you know Dr. Kitchens is a full-time
21 employee, correct?
22 A. Dr. Kitchens works for the U.S. Fish and
23 Wildlife Service. He's coop unit leader.
24 Q. What is a per diem employee?
25 A. Somebody that's hired on a temporary
248
1 basis, temporary.
2 Q. That cooperative considered a University
3 of Florida Fish and Wildlife cooperative, is that a
4 federal entity?
5 MS. PONZOLI: Object to the form. I don't
6 know what you mean by, Mr. Earl, a federal
7 entity. If what you're driving at through all
8 those questions is do we have control of the
9 data I've been seeking for years, I think I can
10 give an answer. No. If we had control, we
11 would have given it to you years ago. So if
12 that's where all these questions are leading,
13 I'm going to tell you right now, we don't have
14 control to give you that data. The University
15 of Florida refused to turn it over.
16 Just wanted to put that on the record,
17 because I know the path you're going down.
18 BY MR. EARL:
19 Q. Have you --
20 MS. PONZOLI: You can answer the question,
21 Mr. Neely. Is it a federal entity I believe was
22 the question.
23 THE WITNESS: I think it's a -- it's
24 partially a federal entity, in that it's a
25 cooperative venture between the University and
249
1 U.S. Fish and Wildlife Service, a federal
2 employee in charge of it.
3 BY MR. EARL:
4 Q. That's Dr. Kitchens, correct?
5 A. Right.
6 Q. Have you ever had any discussions with Dr.
7 Kitchens regarding not providing data requested by the
8 Florida Sugar Cane League or the Water Management
9 District in the past?
10 A. On data not being provided by -- by the
11 Sugar Cane League or to the Sugar Cane?
12 Q. To the Sugar Cane League or the Water
13 Management District when they were -- when they were
14 seeking it?
15 A. In general terms, not anything specific in
16 that the University would not allow him to release raw
17 data.
18 Q. Did he ever seek your advice about whether
19 he should release it?
20 A. No, he did not.
21 Q. Did you ever have any discussion involving
22 whether -- whether or not it should be released, or
23 could be?
24 A. Should or could, no, I don't recall any
25 decision along that line.
250
1 Q. Did the Department of Justice play any
2 role in not releasing that information?
3 A. I have no idea.
4 MS. PONZOLI: I can assure you we did not,
5 Mr. Earl. It would be far easier for me to have
6 turned it over to you years ago.
7 This is fun, but it's not that much fun.
8 BY MR. EARL:
9 Q. Did you, as part of the documents you
10 produced, the boxes behind you, produce the contract
11 with FIU, sir?
12 A. To tell you the truth, Mr. Earl, I'm not
13 sure. I do not know whether it was produced in these
14 boxes or for my deposition, or whether it was produced
15 in other documents that have been produced recently. I
16 just -- I don't recall whether it's in these boxes or
17 not.
18 Q. We haven't seen that document. At least I
19 haven't, and those working on the production haven't
20 seen the document. Does it exist? We don't need to
21 belabor it. Can we get it?
22 A. I'm sure that it existed. If it exists,
23 there's no problem with producing it.
24 Q. The other documents we talked about
25 earlier, were you going to try and find also, the
251
1 publications?
2 A. Well, they're -- like I say, they're
3 buried in some box in my personal effects at the
4 Refuge. They have nothing to do with this Refuge,
5 therefore I never considered them to be part of this
6 ongoing.
7 Q. Well, could I ask that you bring the
8 contract with you tomorrow?
9 A. I can try to bring the contract, but we'll
10 need to start later.
11 MS. PONZOLI: Wait. Wait. I may -- it's
12 a three hour journey for him between going and
13 hopefully finding and coming back. That's
14 something I don't see within the purview of this
15 deposition. If you think you can finish and can
16 completely finish with Mr. Neely tomorrow, then
17 I think that's something that's worth pursuing.
18 Otherwise, I don't see between today and
19 tomorrow sending this man on a three hour
20 journey.
21 BY MR. EARL:
22 Q. Are there no lesser ranking employees who
23 can deliver documents?
24 A. Not to go through my personal effects, no.
25 Q. How about as it to the contract?
252
1 A. As to the contract, I can get a copy of
2 that if --
3 Q. Or just a fax of it, if that could be
4 done, we'd appreciate that.
5 A. Yeah.
6 Q. Would you do that for us?
7 A. Yes.
8 Q. Okay.
9 MS. PONZOLI: And I assume that the League
10 is going to turn over its contracts with its
11 experts, the ones that its refused in the past
12 to turn over.
13 MR. EARL: You can seek whatever materials
14 you seek. We're seeking this contract right
15 now.
16 MS. PONZOLI: Okay.
17 Well, I will exercise the same rights
18 vis-a-vis that contract that I find out that you
19 have exercised vis-a-vis your -- you've
20 exercised on those contracts. I'll consult with
21 my other attorneys. It's my understanding there
22 is a -- some major dispute regarding some of
23 your contracts, Mr. Earl, so I'll make my
24 decision tomorrow.
25 MR. EARL: Ms. Ponzoli, if you'd like to
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1 do -- if you want to have a full disclosure of
2 all of -- we're talking here about a public
3 record, contract with a -- with FIU. We're not
4 talking about litigation witnesses. We're not
5 talking about litigation work. If you want to
6 turn over all of these contracts, and including
7 all of the contracts and agreements with Dr.
8 Jones and other matters, well, then, that's what
9 we be talking about.
10 Right now we're just talking about a
11 contract with FIU that's -- that's relating to
12 the TOC work, which is certainly -- certainly
13 involves tangentially the litigation. But it's
14 not for the litigation as I understand that TOC
15 is doing it. Maybe I misunderstand --
16 MS. PONZOLI: Maybe it's not even relevant
17 to discovery. We're here doing -- I guess I'm
18 just reserving my rights, Mr. Earl, to object
19 to, but he can go ahead and seek it and we'll
20 just decide on that tomorrow.
21 Maybe you can explain the relevance to me.
22 BY MR. EARL:
23 Q. Okay.
24 The Loxahatchee entry permits, sir, Sue
25 Newman has one outstanding, correct?
254
1 A. Yes.
2 Q. You call these special use permits?
3 A. Yes. Special use permits.
4 Q. That's a written one as opposed to verbal
5 ones, correct?
6 A. Right.
7 Q. Okay.
8 What outstanding special use permits are
9 there other than Sue Newman?
10 A. I don't know. I'd have to go to the files
11 and look, sir.
12 Q. Okay.
13 A. There could be any number.
14 Q. Howard Jelks and Frank Johnson, do those
15 names ring a bell?
16 A. Howard Jelks is part of Work Order 32.
17 Frank Johnson, I'm not sure of.
18 Q. When we were talking about mercury
19 earlier, you did not mention Dr. Delfino. Delfino,
20 does that ring a bell?
21 A. I know Dr. Delfino's name, but I don't
22 know of anything he's doing on the Refuge.
23 Q. You're not aware of the special use permit
24 he has?
25 A. I'm not. I don't recall it offhand. I'm
255
1 not saying there isn't one. I just don't recall the
2 permit to Delfino. Let me think about it a minute.
3 I know we did a permit to EPA. And I'm
4 not sure of the person's name, and I just don't recall.
5 I know Delfino's name from somewhere. Maybe it is a
6 special use permit. I just can't recall offhand. I'd
7 have to review that special use permit file, see what
8 it is.
9 Q. What EPA permits did you issue, to do
10 what?
11 A. EPA wanted to collect some snails for a --
12 some type of a baseline study, and they -- they're --
13 they were going to collect snail eggs by putting some
14 sticks in the water and hopping the snails were going
15 to crawl up on them and lay eggs. And they -- they had
16 very moderate success on that.
17 Q. Was that done?
18 A. Yes, it was completed sometime ago.
19 Q. For what purpose was it they were
20 collecting snails?
21 A. To have a baseline group of snails that
22 they had, knew where they came from and when they
23 hatched and how they started. I don't know what the
24 object of the entire study was.
25 Q. Who was the principal investigator?
256
1 A. I'd have to look at the permit and see,
2 sir.
3 Q. Okay.
4 How about DER? Have you issued any
5 permits to them recently?
6 A. To DER, no.
7 Q. How about the Mercury Task Force, does
8 that ring a bell?
9 A. No permit directly to the Mercury Task
10 Force.
11 Q. Okay.
12 I know you and counsel want to leave here
13 at a quarter of to pick up your wife?
14 A. I need to go two places.
15 Q. Okay.
16 A. One to the rest room, one to pick her up.
17 MR. EARL: Okay.
18 Let's adjourn on both counts.
19 (Thereupon, the deposition was adjourned
20 until 9:15 a.m., March 30, 1993.)
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