257
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 III
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 - - -
Tuesday, March 30, 1993
24 319 Clematis Street
West Palm Beach, Florida 33401
25 9:15 - 5:00 p.m.














258
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














259
1 P R O C E E D I N G S

2

3 - - -

4 THE WITNESS: Mr. Earl, just for the

5 record for a minute. A couple of things from

6 yesterday. There seems to be some question

7 about what my statement was about the boundary

8 for the Refuge, is either the center of the

9 Hillsboro Canal or the center of the L-39 levee.

10 MR. EARL: Yes, sir.

11 THE WITNESS: And I'm pretty sure I said

12 the center of the levee, but it is the center of

13 the L-39 levee. It is not the center of the

14 Hillsboro Canal.

15 And one other thing that, when we first

16 sat down yesterday ten minutes early, the first

17 question was what am I going to be testifying on

18 at the hearing. The opinions I gave you have

19 yesterday are the things that I'll be testifying

20 on at the hearing.

21 You kind of took me by surprise when I sat

22 down. I thought we were going to start at 10

23 o'clock, we were ten minutes early. I sat down

24 and you asked me the first question, it kind of

25 caught me off guard.














260
1 MR. EARL: Your lawyer was here, wasn't

2 she?

3 THE WITNESS: I think so.

4 I'm doing this for myself.

5 MR. EARL: Okay. Okay.

6 MS. PONZOLI: Do you have a problem, Mr.

7 Earl, that you're not able to obtain his

8 opinions? I need to clarify that, if that's

9 what you think is going on, because there was

10 some indication yesterday that you feel an

11 absolute need to continue his deposition, and I

12 guess -- I guess that was my thought, that it

13 was based on that. I don't know.

14 MR. EARL: You stipulating those are the

15 only opinions he will provide at the time of

16 trial?

17 MS. PONZOLI: As to the things -- no,

18 you've not finished with him. But I don't

19 anticipate those opinions changing unless

20 there's new information brought out by your --

21 your research or any research we're doing. And

22 if he did have an additional opinions, I would

23 have informed you, allowed you to depose him

24 once more.

25 MR. EARL: So what he's testified as being














261
1 his opinions is the -- is the total extent of

2 what he will testify about?

3 MS. PONZOLI: (No response.)

4 MR. EARL: Is that correct?.

5 MS. PONZOLI: Those were the issues that

6 he's going to testify on, yes.

7 MR. EARL: I can rely on that there will

8 be no further opinions, correct?

9 MS. PONZOLI: We're not saying no further

10 word. If he's going to offer different opinions

11 from what he offered yesterday, I will notify

12 you and you can do him again.

13 MR. EARL: The word is additional opinions

14 I'm interested in, Ms. Ponzoli; is he going to

15 offer additional opinions beyond those?

16 MS. PONZOLI: I'm not getting into a

17 semantic war with you, Mr. Earl. I see no

18 advantage to -- I'm not stipulating away my

19 case. I think that what I -- I guess what I

20 really want clear on this record is that I

21 brought a witness prepared to give you his

22 opinions. He will give his opinions. And that

23 is available to you at this time, and you

24 certainly can obtain them. I think that is --

25 the point is that I -- I'm most concerned that














262
1 you might think that I brought you someone

2 unprepared. And he is prepared to give those

3 opinions. He gave them to you virtually all day

4 yesterday. And I anticipate no changes.

5 MR. EARL: All I'm trying to do is make

6 sure there's no additional opinions. You want

7 to stipulate, I'll be happy. If you don't, we

8 will continue.

9 MS. PONZOLI: Well, I don't think I have

10 to stipulate to anything, Mr. Earl. I just

11 think I've clarified the record.

12 Thereupon,

13 BURKETT NEELY,

14 being by the undersigned Notary Public previously

15 sworn, was examined and testified as follows:

16 DIRECT (Burkett Neely) (Continued)

17 BY MR. EARL:

18 Q. Okay.

19 Anything else you want to get off your

20 chest, Mr. Neely?

21 A. No, sir.

22 (Thereupon, the document was marked

23 Neely's Exb. No. 6 for Identification.)

24 BY MR. EARL:

25 Q. Okay.














263
1 Let me hand you what I've marked, sir, as

2 Exhibit No. 6 to your deposition.

3 A. Okay.

4 MS. PONZOLI: Thank you.

5 BY MR. EARL:

6 Q. You ever seen that before?

7 A. This is part of the package from the Work

8 Order 32 final report, if I recall correctly.

9 Q. What part of the package is this?

10 A. It's a synthesis report. I did not read

11 the entire package. But it is the synthesis report

12 from -- this is dated 1990. This is not part of the

13 final report, I don't think, or it may be. I don't

14 remember what -- the final report was about that thick.

15 It may have been included. But I read the summary up

16 front, but not all of the technical details, and I

17 think that's what a lot of this is, has technical, a

18 lot of technical data.

19 Q. And is this one of the components you rely

20 on the vegetative analysis and other data sets in here?

21 A. This is a part --

22 Q. In your opinion --

23 A. This is components of the Work Order 32,

24 if I'm not mistaken.

25 Q. You've relied on this information in














264
1 forming your opinions, correct?

2 A. Right. Correct.

3 Q. Who directed this research, the scope and

4 nature of research of Work Order 32?

5 A. Who directed it? The field work was

6 directed by the coop unit at Gainesville, by coop unit

7 leader Wiley Kitchens.

8 Q. What role did Loxahatchee personnel play

9 in scoping this, working or --

10 A. The scoping, the initial scoping meeting

11 and the initial development of a contract was done in

12 conjunction with myself, Dr. Maffei, Dr. Kitchens, at

13 that particular time my supervisor, Bill Grable, was

14 present on the initial meeting in Gainesville. And I

15 believe that there may have been others. I don't

16 remember at this point since it was quite sometime ago.

17 There may have been others at that meeting, but I don't

18 recall any others. I remember the four of us for sure.

19 Q. Why is this called a synthesis report?

20 What is the meaning of that?

21 A. I don't have any idea why they called it a

22 synthesis report, sir.

23 Q. What, if any, portions of this report we

24 have marked as Exhibit 6 have you relied on to form

25 your opinions that you expressed yesterday?














265
1 MS. PONZOLI: Object to the form.

2 THE WITNESS: Well, to some extent I would

3 say that the summarized data of -- of all -- all

4 of this report. Nothing, you know, this is a

5 portion of the final work order. It's not the

6 executed -- so it doesn't include the summary,

7 or whatever, what was up front, and the -- all

8 of the technical details. The report, if I

9 remember, was quite thick, of the final report.

10 So this is a portion of the final -- the final

11 report, if I recall correctly, I'm not quite

12 sure even, dated November of '90. But I did use

13 this, some -- some of this data. I did review

14 some of this data, but not all of the technical

15 data in detail.

16 BY MR. EARL:

17 Q. Okay.

18 My question to you, though, sir, in

19 forming your opinions that you expressed yesterday and

20 will express at the hearing, what data sets or specific

21 portions of this Exhibit 6 have you relied on?

22 MS. PONZOLI: Mr. Earl, I object to the

23 idea that he has to tell you a specific portion.

24 If he wants to say he's relied on all of it,

25 which is what I understand he's saying, he's not














266
1 compelled to tell you which portions he --

2 MR. EARL: I'm trying to save time,

3 Counsel. Do you want to go through all --

4 MS. PONZOLI: I know you're always

5 interested in saving time, Mr. Earl. If it

6 can't be done, then we just have to live with

7 the result. And I -- I don't think I'll let my

8 witness be badgered into something, saying

9 something that's not what is his testimony.

10 He's answered your question multiple times

11 now, so -- you keep asking the same question and

12 getting the same answer, which you don't seem to

13 like.

14 MR. EARL: Read back the last question to

15 the witness, please.

16 (Thereupon, a portion of the record was

17 read back by the court reporter.)

18 THE WITNESS: I relied on their entire

19 report, but not specifically anything isolated

20 in it.

21 BY MR. EARL:

22 Q. Okay, sir.

23 Turn to page two, please -- I'm sorry,

24 page one of the report. This purports to be a history.

25 Second paragraph states, once part of an uninterrupted














267
1 expanse of wetlands extending from Lake Okeechobee to

2 the tip of Florida, Loxahatchee NWR is now a unique

3 remnant which still functions as a northern refuge for

4 species of the Everglades ecosystem. Do you agree with

5 that?

6 A. Yes.

7 Q. Okay.

8 Next sentence, the area was enclosed by a

9 canal and dike in the 1950s and 1960s and is now

10 surrounded by drained agricultural land, the Everglades

11 Agricultural Area, and rapidly growing urban

12 development. Do you agree with that too?

13 A. Yes.

14 Q. The bottom paragraph of that page,

15 hydrologically, the Refuge is isolated from the

16 historic Kissimmee/Okeechobee/Everglades watershed. Do

17 you agree with that?

18 A. Isolated in terms of water flow

19 hydrologically.

20 Q. The next sentence, Loxahatchee NWR now

21 functions as a receiving/storage basin, for the

22 drainage of a comparable area of the EAA and is

23 hydrologically driven by the flows of the EAA and

24 rainfall directly intercepted by the Refuge. Do you

25 agree with that statement?














268
1 A. Yes.

2 Q. Okay.

3 I ask you to go down to the last sentence

4 in the second paragraph on the page, hydrologic changes

5 in the northern portion of the Refuge may be causing

6 vegetation changes due to reduced hydroperiod and in

7 the southern portion of the Refuge longer hydroperiods

8 have drowned vegetation communities.

9 A. Yes, I testified to that yesterday.

10 Q. And you also told me without additional

11 information you would be unable to determine the size

12 of those areas, correct?

13 A. Yes. Accurately.

14 Q. I turn -- ask you to go to page 15, sir.

15 A. Okay.

16 Q. In the second full paragraph on that page,

17 about halfway down, the sentence that starts off, it is

18 widely accepted that hydroperiod and fire were the

19 major determinants of plant community distribution over

20 the scale of the entire oligotrophic Everglades system.

21 Do you agree with that?

22 A. Yes.

23 Q. Okay.

24 Next sentence, other factors that

25 influence Everglades plant community distribution














269
1 include hurricanes, frost and nutrient regimes. Do you

2 also --

3 A. Oligotrophic Everglades system, yes.

4 Q. And then the first sentence in the next

5 paragraph, sir, the relationship to hydrologic regime

6 and plant community structure in the Everglades has

7 been the subject of research for almost 50 years. Do

8 you also concur with that?

9 A. Yes, sir, apparently. It's documented,

10 very well documented.

11 Q. I direct your attention to page 16, sir,

12 paragraph down at the bottom of that page, third

13 sentence down. Sawgrass communities burn frequently.

14 Community composition after a fire is dependent upon

15 the depth of fire penetration into the peat layer. Do

16 you agree with that?

17 A. I don't agree that sawgrass communities

18 burn frequently on the Refuge, if that's what you're

19 referring to. If you're talking about sawgrass

20 communities in general or in Area 2...

21 Q. Okay.

22 How about the conclusion that community

23 composition after a fire is dependent upon the depth of

24 fire penetration into the peat layer; do you agree with

25 that?














270
1 A. Yes, I do.

2 Q. Okay, sir.

3 Now, you've said -- said that fires are

4 not frequent in the sawgrass in the Loxahatchee.

5 A. Large fires, no. We have small spot fires

6 on the Refuge occasionally from lightning strikes. And

7 there's a record of those that go back for several

8 years. I don't know exactly how far, maybe beyond when

9 I arrived. But there is a record of all the small spot

10 fires that we can detect. Some of these will go

11 undetected.

12 Q. Well, historically, what is the largest

13 fire you're aware of in Loxahatchee?

14 A. 1961.

15 Q. How big was that?

16 A. I don't -- I can't recall the acreage on

17 it. Then --

18 Q. Did sawgrass burn in '61?

19 A. I think there was more than sawgrass.

20 Q. But the sawgrass did burn?

21 A. Sawgrass, some sawgrass burned. A minor

22 fire, some sawgrass will burn in the Refuge.

23 And then again, in 1990. And I'm not sure

24 of the -- whether we could classify major fires between

25 those two. You'd have to just to go back to the














271
1 records and look and see, determine what's a major

2 fire, what's a large fire, what's a small fire.

3 Q. What were the fires --

4 A. '61 was -- was a major fire that I -- I'm

5 aware of in the records. In 1990 we estimated that the

6 fire was in the neighborhood of 40,000 acres, plus or

7 minus.

8 Q. Okay.

9 You aware of any other fires, 10,000 acres

10 or more?

11 A. Not without searching the records I

12 wouldn't be aware of it.

13 Q. Okay.

14 If I can ask you to look at page 18 of

15 this report, sir.

16 A. Okay.

17 Q. The first paragraph, as a result of

18 drainage for agriculture, and to a lesser extent urban

19 development, less than 50 percent of the original

20 Everglades remains. Do you concur with that?

21 A. Yes, sir. I can't dispute it.

22 Q. Okay.

23 The driving forces and legislative acts --

24 go down one more sentence.

25 The extensive levee and canal system














272
1 includes the Hoover Dike around the 90 plus mile

2 perimeter of Lake Okeechobee, the enclosure of the

3 three Water Conservation Areas, and the system of

4 canals and pump stations. These structures are used to

5 move water that historically moved as sheet flow across

6 the Everglades that was lost to evapotranspiration. Do

7 you agree with that?

8 A. Yes, sir.

9 Q. Okay.

10 The primary function of this levee and

11 canal system is flood control. Do you agree with that?

12 A. I think there was another primary function

13 that Water Management District had, and it was storage

14 of water for dry season use.

15 Q. Is that one other primary function?

16 A. I would think that would be one of the

17 primary functions.

18 Did you or other Loxahatchee personnel

19 review drafts of Work Order 32?

20 A. Drafts?

21 Q. Yes.

22 A. No, sir. Of the final report, no, sir.

23 That was prepared by the University of Florida.

24 Q. Did you review any preliminary drafts?

25 A. Only the reports that were submitted














273
1 either on a yearly or quarterly basis. I think they

2 were yearly reports that were required, to the best of

3 my recollection.

4 Q. So the Work Order 32 reports do not

5 reflect any revisions or suggestions of either your

6 staff?

7 A. As far as I can -- to the best of my

8 recollection, Mr. Earl, there may have been portions

9 that were sent to us for review, but I do not recall

10 reviewing the entire report or making any suggestions

11 as to what was in it, or what wasn't in it.

12 Q. You review or make suggestions as to

13 portions of the report?

14 A. None. I did not make any.

15 Q. Did the Department of Justice have an

16 opportunity to review and make suggestions?

17 A. To the best of my knowledge, no.

18 Q. What position did Loxahatchee or the Fish

19 and Wildlife Service take on the interim action plan?

20 A. Loxahatchee -- when did -- the interim

21 action plan went into effect when?

22 Q Do you know what the interim action plan

23 is, sir?

24 A. Yes, I do.

25 Q. What is it?














274
1 A. Where water was no longer pumped into the

2 Lake Okeechobee and was diverted south.

3 Q. Okay.

4 A. Seems like that was in the late '70s.

5 Q. Did the Fish and Wildlife service to your

6 knowledge, take a position on whether the interim

7 action plan should be allowed?

8 A. I do not know. That would have been

9 handled by another division out of the Vero Beach

10 office.

11 Q. Do you have any opinions as to the impact

12 of the implementation of the interim action plan?

13 A. Based on review of documents such as this,

14 and based on review of documents pertaining to

15 increased nutrients in the Refuge, my opinion is that

16 yes, the interim action plan did affect the Refuge.

17 Q. How did it affect the Refuge?

18 A. By increased nutrient loading.

19 Q. And did that adversely affect the Refuge?

20 A. I would say that increased nutrient

21 loading adversely affected the Refuge, yes.

22 Q. I direct your attention to page 26,

23 please, the second full paragraph, the present

24 hydrologic alteration of the Everglades system involves

25 extended hydroperiods in some areas, decreased














275
1 hydroperiods in others, and a change in the natural

2 pattern of water deliveries. Do you agree with that?

3 A. As it relates to the entire Everglades

4 system, yes.

5 Q. Okay.

6 Do you agree as it relates to the

7 Loxahatchee?

8 A. Let me reread it, because the sentence

9 doesn't refer to Loxahatchee specifically.

10 We substitute Loxahatchee for Everglades

11 system, my answer would be yes.

12 Q. Okay, sir.

13 Next sentence, ponding of water behind the

14 levees in the southern portions of the WCAs has caused

15 adverse effects to the plant communities. Do you agree

16 with that?

17 A. As it is refers -- if it's referring to

18 natural plant communities, my answer would be yes.

19 Q. And Toth, 1988, found that sawgrass and

20 cattail growth was adversely affected by deep and

21 widely fluctuating water levels, with sawgrass being

22 more adversely affected. Do you agree with that

23 conclusion?

24 A. Yes, because it's not describing what

25 effect it was.














276
1 Q. I'm sorry?

2 A. It says affected, adversely affected by

3 deep and widely fluctuating water levels, with sawgrass

4 being more adversely affected. My answer would be yes.

5 Q. Okay.

6 Then you qualified that. Would you

7 explain your qualification?

8 A. I'm not sure what he means by adversely

9 affected when it refers to cattail.

10 Q. Okay.

11 What is your understanding of the adverse

12 affect deep and widely fluctuating water levels would

13 have on sawgrass?

14 A. It would kill it.

15 Q. How about cattails?

16 A. I found that cattail survives in deep

17 water on the Refuge as big floating mats.

18 Q. The next sentence, the altered hydrology

19 of the Everglades has also affected the animal

20 communities. Do you concur with that?

21 A. Where is that, sir?

22 Q. It's the next paragraph on page 26.

23 A. Okay.

24 Yes, I would say that it's affected the

25 animal communities.














277
1 Q. With relation to Loxahatchee, what animal

2 communities have been affected, and in what manner?

3 MS. PONZOLI: Object to the form of the

4 question.

5 THE WITNESS: We went over that yesterday.

6 If you want me to explain it again, I will.

7 BY MR. EARL:

8 Q. I don't believe we have. Have we talked

9 about alligators or other --

10 MS. PONZOLI: Yes, we did.

11 THE WITNESS: Yes, we did. If you want me

12 to go into it again, I can try to cover it again

13 for you.

14 BY MR. EARL:

15 Q. I know we didn't talk about how it has

16 adversely affected alligator nesting patterns.

17 A. It doesn't affect, adversely affected. It

18 just says affects.

19 Q. Okay.

20 Let me ask you if it adversely affected

21 animal communities in Loxahatchee?

22 A. Altered hydrology?

23 Q. Caused by the project.

24 Q. Of the Everglades?

25 Q. Of Loxahatchee.














278
1 A. Substitute the Loxahatchee there. Altered

2 hydrology of the Loxahatchee has also affected the

3 animal communities, yes.

4 Q. Okay.

5 How has it affected the alligator, for

6 example?

7 A. Under certain circumstances, a one year

8 high water flooded out alligators' nests. And in the

9 drought of 1990, 89-90, the drained Everglades forced

10 almost all of the alligators on the Refuge into the

11 perimeter canal out of their normal habitat.

12 Q. And what -- what impact does that have on

13 the alligators, adverse?

14 A. The adverse impact was that they had to

15 move out of their existing habitat into a canal type

16 habitat, which is not their normal type. There was

17 a -- as the water levels continued to go lower, there

18 was a food shortage. Alligators were eating

19 alligators. Alligators were being struck by boats

20 until I closed the Refuge to boating. Alligators were

21 interacting with people fishing until I closed the

22 Refuge to fishing.

23 Q. Were the impacts of that 89-90 drought

24 exacerbated by the project?

25 MS. PONZOLI: Object to the form.














279
1 THE WITNESS: I can't -- it made --

2 probably resulted in the Everglades being

3 overdrained, the Refuge being overdrained

4 because of the inside perimeter canal.

5 BY MR. EARL:

6 Q. More than it would have been in a natural

7 state under the same drought?

8 A. Absolutely.

9 Q. And did those conditions also adversely

10 affect the breeding of the alligators?

11 A. (No response.)

12 Q. Did they nest?

13 A. I was trying to recall the months of

14 severest drought. I'm sure some of them nested, but

15 I'm sure that since they all moved out of their native

16 habitat into the canal system, there was very little

17 nesting. There was some effect on nesting, yes.

18 Q. And what has been the impact of altered

19 hydrology by the project upon wading birds in the

20 Loxahatchee?

21 A. From the project?

22 Q. Yes, sir. The modifications to the

23 natural system.

24 A. For the Refuge or for the entire --

25 Q. Refuge.














280
1 A. -- Everglades.

2 And you specified adverse impact or just

3 impact?

4 Q. Adverse impact.

5 A. I think that at times that, when the water

6 levels are high, for example, the wood storks' food

7 base is not concentrated, when the water levels are too

8 low there is no concentrated food base. If it's, for

9 example, under extreme conditions of low water, there

10 wouldn't be shallow water for the wading birds to feed

11 in. And that would affect the nesting colonies, the

12 number of nesting colonies, and all of that information

13 will be documented as to -- probably could be

14 correlated between water depths and nesting success.

15 Q. Has that been done for, for example,

16 Loxahatchee?

17 A. To some extent.

18 Q. Who has done that work?

19 A. Well, work has been ongoing since it was a

20 refuge, I would imagine, through general observations.

21 It's not been a detailed study other than what's

22 contained in Work Order 32 that I can recall. There

23 may have been some old studies that I'm not aware of.

24 Q. How about wading bird nesting or

25 colonizing or not colonizing because of altered water














281
1 conditions, have you observed that?

2 A. Within the Refuge?

3 Q. Yes, sir.

4 A. Yes. When there is no water, for example,

5 during the drought, severe drought of '89 and '90 there

6 was very little nesting.

7 However, under ideal water conditions in

8 '87 I believe it was, there was extensive nesting.

9 Q. Of what?

10 A. White ibis, for one. All wading birds,

11 extensive nesting on the Refuge.

12 Q. What has the central and southern projects

13 construction operation, what impact, if any, has it had

14 on Everglades kite in Loxahatchee?

15 MS. PONZOLI: I object to the form of the

16 question.

17 THE WITNESS: I'm not sure that just

18 construction itself there had -- it had some

19 effect, but I don't know what the overall effect

20 of the construction of levees and dikes might

21 have been. I'm not sure there's ever been a

22 study on that.

23 BY MR. EARL:

24 Q. How about the operation of the project and

25 changes in hydroperiods?














282
1 A. Regulation schedule?

2 Q. Yes, sir.

3 A. The regulation schedule has, in my

4 opinion, affected the number of kites, the density and

5 the nesting in years past.

6 Q. Adversely affected the number of density

7 and nesting?

8 A. Well, it's been lower, if that's what you

9 consider to be adverse.

10 Q. Are you a Fish and Wildlife Service

11 officer?

12 A. Yes.

13 Q. How has the habitat requirement of the

14 snail kite in Loxahatchee been affected?

15 MS. PONZOLI: Object to the form.

16 THE WITNESS: I think that the -- either

17 the deeper water, or when there's no water at

18 all, there's no place for kites to fish for

19 snails.

20 BY MR. EARL:

21 Q. To what do you attribute the decline in

22 wading bird population between the turn of the century

23 and now in Loxahatchee?

24 MS. PONZOLI: Object to the form.

25 THE WITNESS: Could be any number of














283
1 factors, not all related to Loxahatchee.

2 BY MR. EARL:

3 Q. What factors do you say in your opinion.

4 A. Loss of habitat is probably the primary

5 factor in South Florida for decline of wading birds

6 since they're migratory, they don't just stay to the

7 Refuge. Wading birds move to where habitat is

8 desirable.

9 Q. How about other factors, localized factors

10 in Loxahatchee, for example?

11 A. I would say that the effects that I've

12 mentioned to you yesterday, the loss of habitat at the

13 Refuge by the spread of cattail could be one thing that

14 would lower the numbers of wading birds being able to

15 use the Refuge. The fires that go through temporarily

16 dis -- or adversely affect the wading birds, but it

17 appears, based on observations, that wading birds

18 immediately move back into burned areas because there's

19 food base available with no cover on it, particularly

20 water, if there's water put back on it.

21 Q. In your opinion, have nutrients or altered

22 hydroperiod had the greater adverse impact on wading

23 birds in the Loxahatchee?

24 MS. PONZOLI: Object to the form.

25 THE WITNESS: Without a detailed study on














284
1 that, Mr. Earl, that's a very technical question

2 that I don't think that I could answer.

3

4 BY MR. EARL:

5 Q. Who would be able to answer that?

6 A. I'm not sure that data has been collected

7 to technically answer that question.

8 Q. You haven't tried to do it in your tenure

9 at Loxahatchee, have you?

10 A. To answer that question? I haven't tried

11 to.

12 Q. To determine whether hydroperiod or

13 altered -- altered hydrology or nutrients has the

14 greater adverse effect on wading birds?

15 A. I've not asked for any studies to be done,

16 yes.

17 Q. Okay.

18 A. Other than what's in Work Order 32.

19 Q. That would be, as we sit here today, the

20 best source of that information?

21 A. Probably most comprehensive available data

22 currently. There are studies in the past and some

23 summaries of studies in the past that are -- many of

24 them are referenced, or probably most of them are

25 referenced in this document. I keep seeing a lot of














285
1 reference to work that has been done generally in the

2 Everglades, and since the Refuge is Everglades, it

3 applies too.

4 Q. What would you have to do to determine the

5 relative impact of nutrients and altered hydrology on

6 wading birds in Loxahatchee?

7 A. Well, you'd have to go back and do a

8 literature search, to start with. And then you would

9 have to develop a scope of work for a research project,

10 and then you would need to probably determine at that

11 point what the -- during the development of scope of

12 work, what work needed to be done, or whether you could

13 draw conclusions from past research, or whether you

14 wanted to go forward with a new research project or

15 portions of a research project to make that

16 determination.

17 Q. I understand that's the administrative

18 process you would go. I -- I'm asking are you

19 substantially competent to design such a study?

20 A. I would rely on technical people, and any

21 technical people that we commissioned to do that study

22 to help in the development of scope of work.

23 Q. That would be Dr. Maffei?

24 A. Well, it would be whoever we commissioned

25 if we went out with a contract to either a cooperative














286
1 university or one -- any other university or any other

2 competent research customer.

3 Q. Okay.

4 Who on your staff though, you said your

5 people.

6 A. Dr. Maffei would be my primary technical

7 adviser to me.

8 Q. And is there a bird specialist in the

9 authors of Work Order 32, Richardson, Bryant, Kitchens,

10 Mattson and Pope?

11 A. (No response.)

12 Q. One -- do one of them know more about

13 birds than the others?

14 A. I have no idea what their qualifications

15 are specifically, sir. I'd have to read the -- their

16 vitae to see what their qualifications were.

17 Q. You mentioned Howard Jelks yesterday who

18 worked on Work Order 32. What about Howard Jelks?

19 A. He is studying wading birds.

20 Q. He would be the bird person on 32?

21 A. He was the one that worked on them. I'm

22 not sure he would -- he's not on staff. He was a

23 graduate student, worked on the wading bird portion of

24 Work Order 32.

25 Q. In your opinion, has altered hydrology had














287
1 any effect on periphyton mats?

2 A. Yes. If you have a periphyton based --

3 periphyton mat aquatic-based, if you drain the Refuge,

4 you affect -- you alter the periphyton mat.

5 Q. You lose them, don't you?

6 MS. PONZOLI: Object to the form.

7 THE WITNESS: I'm not sure whether you

8 lose all of them or not. It depends on the

9 extent that they're exposed to -- exposed to the

10 air and the extent that the place is drained.

11 BY MR. EARL:

12 Q. Can altered hydroperiod or hydrology cause

13 a shift in community species of periphyton?

14 A. I don't know, sir. That's a technical

15 question that I can't answer.

16 Q. Has Loxahatchee done any studies -- are

17 you aware of any of the studies in the Loxahatchee by

18 others to determine the extent of periphyton mat loss

19 or any shifts in periphyton, between periphyton

20 species, as a result of altered hydrology?

21 A. I'm not sure in detail whether that was a

22 specific objective of some of the studies done by the

23 Water Management District, but I do know that Dave

24 Swift did some work in that realm, but I'm not sure

25 specifically. I think he was on the Refuge.














288
1 Q. Okay.

2 And do you have any opinion as to the

3 relative adverse effect on periphyton mat loss that

4 altered hydroperiods and nutrients have had in

5 Loxahatchee?

6 A. Could you repeat that, sir?

7 Q. Would you read it back, please?

8 (Thereupon, a portion of the record was

9 read back by the court reporter.)

10 MS. PONZOLI: I'm going to object to the

11 form.

12 THE WITNESS: You're combining nutrient

13 effects and hydrologic defects in a question,

14 sir.

15 BY MR. EARL:

16 Q. No, sir. I'm asking you to compare them,

17 the relative impact, one versus the other. Do you have

18 an opinion?

19 A. No, I don't. It's a technical question

20 that I would not render an opinion on.

21 Q. That would be Dr. Maffei?

22 A. Maffei, yes.

23 Q. Okay.

24 And would the same be true -- strike that.

25 Let's start over again.














289
1 Do you have an -- do you have an opinion,

2 Mr. Neely, as to relative effect on periphyton species

3 shifts caused by nutrients versus altered hydroperiod

4 in Loxahatchee?

5 A. Sounds like the same question with the two

6 reversed.

7 No, sir, I don't. That's a technical

8 question, and I would refer to my technical people to

9 answer that for me.

10 Q. Do you agree the long term change in the

11 composition of a periphyton community would ultimately

12 affect higher trophic levels?

13 MS. PONZOLI: Are you reading from the

14 document, Mister --

15 MR. EARL: I'm asking him a question,

16 would -- whether he agrees.

17 THE WITNESS: Do I agree that long term --

18 Would you --

19 BY MR. EARL:

20 Q. Do you agree long term change in the

21 composition in the periphyton community could

22 ultimately affect higher trophic levels?

23 A. As a biologist, I would say yes.

24 Q. Okay.

25 Do you agree that long term loss of














290
1 periphyton mat could ultimately affect the higher

2 trophic levels?

3 A. Yes, I could agree to that.

4 Q. Okay.

5 A. Could you specify what long term means?

6 Q. I'm going to ask you as a biologist, sir,

7 what would you consider of sufficient duration to have

8 an impact?

9 A. I would say that long term could be

10 anything up to any number of years.

11 Q. What would shorten that range?

12 MS. PONZOLI: Object to this whole line of

13 questioning. It starts with a question, Mr.

14 Earl. Now you're asking him what your question

15 means.

16 THE WITNESS: Well, I don't -- I don't

17 know, Mr. Earl, what your term long term means.

18 You specify to me, I will give you my opinion on

19 it.

20 BY MR. EARL:

21 Q. Okay.

22 Let's ask it another way then, Mr. Neely.

23 In your opinion, how long would the

24 periphyton mat have to be dried out before you would

25 have a loss of that mat?














291
1 A. I don't know, sir. That's a technical

2 question. I expressed an opinion on it a while ago

3 that it would affect the periphyton mat if it were

4 dried out. I am not sure exactly how long or how dry

5 it would have to be before it would be eliminated.

6 Q. Okay.

7 A. It could be anything from a matter of

8 hours to -- or even shorter than that for some

9 periphyton, and it probably could be longer for other

10 periphyton.

11 Q. Okay.

12 And who at Loxahatchee would be most

13 knowledgeable about that?

14 A. My technical person, Dr. Maffei.

15 Q. I direct your attention to page 33, sir.

16 A. Okay, sir.

17 Q. That first paragraph, I'd ask you to go

18 down to one, two, three, four, five, six, seven lines

19 down, sir, the sentence that starts off during the

20 1950s.

21 A. Yes.

22 Q. Are you with me? During the 1950s the L-7

23 canal on the western boundary and the L-40 canal on the

24 eastern boundary were established along with changes to

25 the Hillsboro Canal to allow water to be gated into














292
1 WCA-2A. The two large pump stations, S-5A and S-6,

2 were also installed during this time period. The

3 control structures were finished and the ability to

4 control water was implemented during June/July of 1960.

5 Do you concur with that?

6 A. It's just a statement of facts, sir. I

7 guess I have no reason to object to it.

8 Q. Okay.

9 Did Loxahatchee staff not review the

10 accuracy of these statements?

11 MS. PONZOLI: Object to the form,

12 argumentative nature of the question.

13 BY MR. EARL:

14 Q. Did you review those these?

15 MS. PONZOLI: It's been asked and

16 answered.

17 You may answer again, Mr. Neely.

18 THE WITNESS: Okay.

19 This is just a statement of fact. And as

20 far as I can determine, this statement of fact

21 appears to be true, sir.

22 BY MR. EARL:

23 Q. Okay.

24 A. It's a very general statement talking

25 about two decades, the '50s and '60s.














293
1 Q. Okay.

2 The next sentence, this marked a radical

3 change in the hydrologic pattern that had been in place

4 for the 50 years previous to this time. Do you agree

5 with that?

6 A. Yes, I would agree with that.

7 Q. Okay.

8 Let's go to the next paragraph, sir. You

9 said you needed assistance in recollecting some of the

10 fires. In the intervening 30 years, there have been at

11 least several major fires in the Refuge, all

12 coincidental with drought conditions. 1955, 10,000

13 acres. Okay. 1962, 100,000 acres.

14 A. Okay. I stated '61. I would correct that

15 to '62.

16 Q. Okay.

17 I'm not trying to hold you to a year

18 there. Is this an accurate -- I'm just trying to get

19 your reflection, is this an accurate depiction of

20 fires, in 1981, 6500 acres?

21 A. That was -- that figure, 1981, was 6500

22 acres?

23 Q. Um-hum.

24 A. That's a conglomerate of all acreage

25 burned that year, not a single fire in a single














294
1 location.

2 Q. Okay.

3 How about the control burn program FWS had

4 in Loxahatchee, what did you -- tell me about that.

5 A. Since I've been there?

6 Q. Well, let's start with that. Yes, sir.

7 A. Since I've been there we have -- we've

8 done very minor control burns of probably 2,000 acres

9 or less as a follow-up to Melaleuca control and for

10 fuel reduction.

11 Q. Fuel reduction?

12 A. Yes.

13 Q. What do you mean by that fuel?

14 A. Well, fire was a natural part of

15 Everglades, and to follow through with prescribed burns

16 or controlled burns, it revitalizes areas, and it also

17 has other effects, such as opening areas up that wading

18 birds can feed, particularly if water levels are

19 correct.

20 Q. Okay.

21 A. And also in control of woody vegetation

22 and Melaleuca seeds.

23 Q. In what areas have you, during your

24 tenure, had control burns?

25 A. We have had control burns on the eastern














295
1 edge near the headquarters area.

2 Q. But on the other side of the canal?

3 A. (No response.)

4 Q. On the western side of the canal?

5 A. Yes, sir. Inside Water Conservation Area

6 No. 1 we have had some control burns, off the top of my

7 head, in the neighborhood of 2,000 acres.

8 Q. Have they all been on the eastern edge of

9 the Refuge there by the headquarters?

10 A. Yes, with one exception. We had -- we did

11 a prescribed burn, a control burn as a safety factor on

12 the western side of the Refuge between the L-7 canal

13 and the L-7 levee, and this was for a specific reason.

14 Q. What was that?

15 A. That was as -- to establish what -- what

16 we call a black strip to hopefully protect the Refuge

17 from any fires that might occur in the sugar cane field

18 on a wind shift.

19 Q. Okay.

20 On the eastern edge, how many separate

21 fires would you say you've set as part of your

22 prescribed burn program?

23 A. I don't recall offhand, Mr. Earl. I'd say

24 probably less than ten.

25 Q. Okay.














296
1 A. Some of these fires only burn a hundred

2 acres. When they do a prescribed burn it's not set a

3 match here and whoom, the acreage burns. They may have

4 to burn this little portion and this little portion and

5 this a little portion because of the wet prairie

6 separation.

7 Q. Where did the burn in 1955 occur, to your

8 knowledge, the 10,000 acres?

9 A. 100,000 -- 10,000 acres?

10 Q. Yes, sir.

11 A. I don't know, sir. I'd have to refer to

12 the map to find that --

13 Q. What map? Do you have a burn map?

14 A. Or to -- I don't have a burn map. Or to

15 the location or the files on fires, or maybe even the

16 annual narrative would be the quickest place to go look

17 and see what happened in 1955.

18 Q. But you have no idea where that burn was?

19 A. No, sir.

20 Q. Okay.

21 How about 1962 that you talked about

22 earlier?

23 A. 1962, since we're talking 100,000 acres,

24 the Refuge is only 143,145, I would say that's pretty

25 much the entire Refuge.














297
1 Q. Okay.

2 A. That was, as I discussed earlier, the

3 first year was too much water and second year was a

4 drought.

5 Q. That was the year --

6 A. That was the -- the year, that second year

7 of operation of the system. And there was a severe

8 drought in 1961 that facilitated 100,000 acres burning.

9 Q. Do I understand correctly that peat will

10 burn when it's dry?

11 A. Yes, sir.

12 Q. Did it burn in that year, to your

13 knowledge?

14 A. I would have to review that, that a fire

15 that happened before I got here. I know I was familiar

16 with the acreage in the year, approximately, but I'm

17 not sure of the entire effects, but I -- I think there

18 was some peat burns, but I do not know to what extent.

19 I'm sure there was some surface peat burn.

20 Q. And do you know whether any of that burn

21 occurred where there are now cattails?

22 A. I can't answer that, sir. I don't know.

23 Q. Okay.

24 What would you need to answer that?

25 A. I don't know what 40,000 acres didn't














298
1 burn.

2 Q. Okay.

3 What would you need to answer that

4 question specifically in your files?

5 A. I would need to go back and review

6 probably the -- possibly the 1962 narrative, see if it

7 would describe it there, and if not, I would try to

8 find out other records of -- if necessary, I -- I might

9 even call whoever was the manager then and try to ask

10 them.

11 Q. Okay.

12 What other records would exist in your

13 files of this burn?

14 MS. PONZOLI: Excuse me. What other

15 records, other than what?

16 MR. EARL: What other reports would exist

17 in his files of this burn? He said he'd have to

18 look at the other records, Counsel. I'm using

19 his phrase.

20 THE WITNESS: Any records that might refer

21 to fires, any record?

22 BY MR. EARL:

23 Q. Tell me -- records that would refer to

24 fires in your files if you were going to go looking for

25 them.














299
1 A. Well, I would imagine it would be the --

2 in the biological. If you want to narrow the file down

3 in biological files, there may be a file folder under

4 fires. There could be a file folder under vegetation.

5 There could be any reference to -- to the fire during

6 that year, any number of places there may have been

7 memos that were written to the regional office that --

8 could be any number of records as to that fire that

9 year.

10 Q. Okay.

11 I'm asking you what -- what files you

12 would check to find out. You said biological files,

13 you might have a fire file.

14 A. I would look in the correspondence file if

15 I had to specifically locate this.

16 Q. Is that a chronological correspondence, by

17 subject matter?

18 A. Chronological files we furnished to -- to

19 you at the first deposition.

20 Q. I'm asking you under oath what the files

21 are, not what you furnished us, sir.

22 A. Yes, sir. I said the chronological files

23 that I furnished you under the first FOI.

24 Q. Do you maintain correspondence files in

25 any other form other than by chronology?














300
1 A. In the subject file there would be

2 probably a file copy of any memos that went out

3 concerning fires.

4 Q. Okay.

5 What subject matter would you look in to

6 look for fires?

7 A. Without having the files index in front of

8 me, Mr. Earl, I would have to say that it would be

9 under a folder maybe labeled fires. I do not have the

10 file index in front of me. As I mentioned to you

11 earlier, the file system at the -- at the time that I

12 arrived here was -- was an extensive listing index,

13 file index that almost gave you multiple choices. So I

14 cannot, with specificity, tell you which folder any

15 reference to the 1962 fire would be in.

16 Q. I'm asking you where you would look, sir,

17 under what subject?

18 A. I would look under the subject, under the

19 biological files in general, which is a category of

20 files, I would look to see if there is a folder on

21 fires, and I would look to see if there's folders on

22 vegetation.

23 Q Do you know, have you ever seen a map or

24 aerial photograph of the extent of this burn?

25 A. Of the '60 --














301
1 Q. '62?

2 A. -- '61.

3 Q. '62, yes.

4 A. 62, I'm sorry. No, sir. I don't think

5 that I have specifically seen a map that outlined the

6 '62 fire.

7 Q. You say specifically. Have you seen

8 something that discloses it generally?

9 A. Not that I can recall, sir.

10 Q. Where would you go to look for such a map

11 or photograph in your files?

12 A. I would look in the file folder under the

13 biological section entitled fire, and see if there's a

14 folder with that, that had that information in it.

15 Q. I'm asking specifically about maps. Do

16 you have a separate map file or photograph?

17 A. I would imagine there would be some kind

18 of sketch or map within that folder. That would be my

19 first try.

20 Q. Who maintains the files at the

21 Loxahatchee?

22 A. By maintains --

23 Q. Who is the individual responsible for

24 maintaining the filing system and filing materials?

25 MS. PONZOLI: Object to the form.














302
1 Presumes something that's not in evidence.

2 THE WITNESS: Our entire staff files

3 stuff, if that's what you mean, in their

4 particular section. Such as a public use

5 specialist may file information in the public

6 use files. The biological staff might file

7 stuff in biological. Administrative officer

8 would file stuff in the administrative file.

9 BY MR. EARL:

10 Q. Another question, who on your staff is

11 overall responsible for the maintaining of files?

12 A. Well, I am, as refuge manager.

13 Q. Okay.

14 Who under you does that?

15 A. My key staff people.

16 Q. Is there an administrative person

17 responsible for the general day-to-day maintenance of

18 those files?

19 A. No, sir.

20 Q. So I would have to talk to each of the

21 people who maintains their own files --

22 A. Their own section of files, yes.

23 Q. -- correct?

24 And who maintains the biological files?

25 Would that be Dr. Maffei?














303
1 A. Yes. He and his staff.

2 Q. Any other files or subject matter you

3 would research to -- to research the history of fires

4 in Loxahatchee?

5 A. There could possibly be some evaluation of

6 the fire, or some reference to the fire in the files at

7 Vero Beach, at the Fish and Wildlife Enhancement office

8 in Vero Beach. It may be repeat copies of stuff in

9 from Loxahatchee, or it could be their own evaluation

10 of what happened, since they deal with endangered

11 species. There would probably -- well, I don't want to

12 speculate on --

13 Q. There would be probably what, in Atlanta?

14 A. No, sir. Only thing you'll find in

15 Atlanta is what we furnished them from our office.

16 Q. Were you going to say somewhere else?

17 A. There may be some reference to it at the

18 Water Management District, since it was -- since it's

19 in Water Conservation Area No. 1.

20 Q. Okay.

21 The '81 fire, you said that's a composite

22 of all the fires, this 6500 acres is a composite of all

23 the fires in 1981, correct?

24 A. That's my best recollection of it. I know

25 it that was my first year here, and since it was a














304
1 drought year, again, in 1981, there was no water on the

2 marsh at that time. I can remember several lightning

3 strikes, and I do remember specifically three fires

4 that I witnessed.

5 Q. Where were those fires, sir?

6 A. One was on the west side. Two were on the

7 east side.

8 Q. Where was the fire on the west side?

9 A. Fire on the west side would have been

10 adjacent to the L-7 canal and north of the S-6 pump

11 station. It's very well depicted on satellite imagery

12 for that era.

13 Q. What is; the fire?

14 A. Yes.

15 Q. How big a fire was that?

16 A. It was less than -- less than 6500 acres.

17 I don't know the exact size because that's three

18 composite fires.

19 Q. Okay.

20 You personally observed the fire on the

21 west, you say?

22 A. Yes, I did.

23 Q. What's your best estimate of the size of

24 that fire?

25 A. Probably less than 5,000 acres. As I














305
1 mentioned yesterday, you asked me about fires less than

2 5,000 acres or more, and I -- I think that one was less

3 than 5,000.

4 Q. Okay.

5 Now, there were two fires on the east

6 side. Where were they, sir?

7 A. They were -- one was on the -- they were

8 adjacent to the trail we -- we designate as an airboat

9 trail that goes out. They were very close to

10 headquarters landing, and probably about a mile out.

11 Maybe a little further than a mile out. Two separate

12 instances. One, there was -- there was a period of

13 about two weeks in between them, if I remember

14 correctly. All three caused by lightning.

15 Q. And what was the area in those that --

16 that is your best estimate, having observed them?

17 A. The acreage?

18 Q. Yes, sir.

19 A. They were small in nature. In general,

20 acreage-wise, I have no idea. Probably between 500 and

21 a thousand acres, more or less, each. Maybe smaller

22 than 500 acres on one of them.

23 Q. The fire in '81 on the west side, that

24 involved a peat burn?

25 A. In '81?














306
1 Q. Um-hum.

2 A. No, not to my knowledge, it didn't. Other

3 than surface peat as the fire skimmed over it since it

4 was a drought.

5 Q. But you haven't investigated --

6 A. Are you referring to deep peat burns that

7 continue to burn for -- what do you mean by peat burn?

8 Q. Peat catching on fire.

9 A. Yes, sir. As fire burns over the surface

10 of the peat, if it's dry, it will burn it.

11 Q. And did you observe that in '81 on the

12 west side?

13 A. Well, I observed the fire. I didn't go

14 out and measure how much peat was burned because it was

15 insignificant.

16 Q. Okay.

17 How long an area would you estimate,

18 having observed it personally, along the canal was

19 consumed by that fire in a linear fashion along the L-7

20 canal?

21 A. Probably less than two miles.

22 Q. Okay.

23 A. Or not more than three. I'm guessing now,

24 sir.

25 Q. And how far into the interior of the marsh














307
1 does that fire go?

2 A. Between a half a mile and a mile, to the

3 best of my recollection. Maybe a little further than a

4 mile.

5 Q. What satellite imagery that do you have

6 that depicts that fire that you talked about that's

7 depicted very well in 19 --

8 A. I think there's --

9 Q. -- 81?

10 A. I think that LandSat photo that's hanging

11 in my conference room is one.

12 Q. What else do you have?

13 A. I'm not sure whether the imagery that was

14 done in '83 still depicts that fire or not without

15 going and looking at it directly; and there are some

16 aerial photos that we utilize that depict it.

17 Q. What aerial photos do you utilize that

18 depict it?

19 A. I have some aerial photos that -- large

20 scale aerial photos in the conference room.

21 Q. What year are those from?

22 A. Seems like '83. I'm not sure on the date,

23 Mr. Earl. As a matter of fact, as I recall, some of

24 them were done one year and some of them done another

25 year. And I don't remember which particular photo has














308
1 which date on it.

2 Q. Okay.

3 One year was '83, what was the other year?

4 A. Either '82 or '84. I don't recall, sir.

5 I'm speculating now. I just remember that there are

6 different year dates on them.

7 Q. What is the Fish and Wildlife policy

8 regarding suppressing fires? Do you put them out? Do

9 you let them burn? What do you do?

10 A. The policy for the Fish and Wildlife is

11 to -- and it's changed since the Yellowstone fire,

12 which I can't tell you when. Policy at the Fish and

13 Wildlife Service at this point would depend on the

14 conditions at the particular time as to whether we

15 attacked a fire or not for suppression.

16 Q. Okay.

17 What was it before the Yellowstone fire?

18 A. The policy before the Yellowstone fire was

19 that if there were no immediate threat to either

20 structures or to the habitat or to people, that that

21 fire would be -- would not be suppressed.

22 Q. Okay.

23 And now it's a case by case determination?

24 A. Yes, sir. We may have lightning strike

25 fire that is only an area as big as this room, we














309
1 certainly wouldn't put on a suppression effort on that.

2 Q. What are the criteria?

3 A. The size and duration of the fire, the

4 weather conditions at the time, the habitat conditions

5 at the time, the location of the fire. There's

6 numerous, numerous criteria that go into that after an

7 initial assessment is done.

8 Q. Is there a policy in the Refuge manual,

9 written policy on this?

10 A. I would have to look and see, sir.

11 Q. You don't know whether that's a written

12 policy?

13 A. I'm sure there's a policy on fire -- on

14 fires, but you were asking me about the criteria.

15 Q. Um-hum.

16 A. There is written policy in the Refuge

17 manual.

18 Q. On fires?

19 A. Yes.

20 Q. You do not know whether criteria are in

21 there though, right?

22 A. I would have to look and see. I'm sure

23 there are criteria there.

24 Q. Okay.

25 A. And the Refuge manual may even be














310
1 outdated, and there may even be a subsequent memo that

2 came on it.

3 Q. Okay.

4 Are other portions of that manual outdated

5 that you brought with you today that you previously let

6 us copy?

7 MS. PONZOLI: Object to the form.

8 THE WITNESS: I would have to answer that

9 yes.

10 BY MR. EARL:

11 Q. Okay.

12 So we would have to go through with you

13 and identify each of those areas. Would that be the

14 way to do that?

15 A. I'm not even sure I could identify them

16 because the Washington office issues the manual

17 changes, develops and issues manual changes along with

18 amendments to the regional policies that are found in

19 the manual. And there may be a manual change in

20 transit that could be wrong or could be outdated.

21 That, I don't know about. Could be in the mail.

22 Sometimes it takes some time for those to be

23 distributed throughout the Fish and Wildlife Service.

24 Q. You would -- you'd be able to recognize

25 whether a policy is outdated or specifics are not














311
1 contained in there from reviewing the manual, correct?

2 A. I would recognize what the manual -- if I

3 wanted to find if that was the latest policy, I could

4 probably make a call and find out if I had a question

5 as to whether it was or not.

6 Q. Prior to your arrival at Loxahatchee, what

7 was your understanding of the -- what is your

8 understanding of control burn policy?

9 A. Prior to my arrival at Loxahatchee they

10 were operating under a completely different policy. I

11 think that policy changed within the Fish and Wildlife

12 Service during my tenure at Loxahatchee. We've become

13 extremely more fire conscious over the years. I'm not

14 sure exactly the evolution of current policy,

15 date-wise, but I think that prior to my arrival, the

16 best that I can understand is that there was

17 opportunistic prescribed burns.

18 Q. What does that mean?

19 A. That means if the habitat conditions were

20 right, the hydrology was right, weather was right, all

21 of the conditions being right in the determination

22 refuge manager that there would be a small prescribed

23 burn.

24 Q. And how many acres would you estimate were

25 burned prior to your arrival?














312
1 A. I have no idea, sir. I'd have to try to

2 simulate that data from numerous sources.

3 Q. You've never done that?

4 A. No, sir.

5 Q. And would those numerous source be the

6 same ones you told me about earlier?

7 A. Yes, sir.

8 Q. Anyone else on your staff able to assemble

9 those? Are you the only one that could put that

10 together?

11 A. I could probably have various people work

12 on those that have that capability. My deputy could

13 probably handle that, and Dr. Maffei could probably

14 handle that. And with the aid of their staffs, they

15 could probably assemble that data over a long term.

16 Q. And then page 33 says 1989, 45,000

17 acres --

18 A. Yes, sir. That's the fire.

19 Q. -- burned.

20 A. I referred to the '89 drought, I said

21 43,000, plus or minus.

22 Q. Page 34, sir.

23 A. Okay, sir.

24 Q. Second paragraph talks about a series of

25 vegetative transects were started in 1959 and continued














313
1 intermittently until 1969. You're familiar with those,

2 aren't you?

3 A. I'm familiar with them. I don't know

4 what -- I don't know the details of them.

5 Q. Has any recent investigation of those been

6 undertaken?

7 A. Of those particular transects?

8 Q. Yes, sir.

9 A. I'm not sure, sir. I'd have to ask Dr.

10 Maffei.

11 Q. You don't know whether --

12 A. If there has been any overlap of those

13 transects with any of the other transects.

14 Q. You do not know about it if there has?

15 A. No, sir.

16 Q. On the paragraph above that --

17 A. Yes, sir.

18 Q. -- about halfway down. The first attempt

19 at a vegetation map was made in the 19 -- mid 1950s,

20 using approximately 35 phototransects from 19 --

21 earlier 1952 aerial photography. Do you have -- do you

22 still have that in the file?

23 A. The photography?

24 Q. The photography and the original

25 vegetation map.














314
1 A. I think that may still be in the files.

2 I'm -- I'm not absolutely certain on the map. I think

3 some of the negatives for the photography may still be

4 there. I do know that we have some aerial photographs,

5 photography of that era.

6 Q. Okay. Okay.

7 Last sentence this was followed by a

8 similar map in 1966 and 1968. Do you also have the

9 aerial photography used in those maps?

10 A. It doesn't refer to any aerial photography

11 there, sir. I don't know how those were done --

12 Q. Do you --

13 A. -- other than -- other than it could have

14 been the same aerial photography. We do have aerial

15 photographs, yes, sir, several series of aerial

16 photographs from the '40s forward.

17 Q. Do you have them for '66 and '68, to your

18 knowledge?

19 A. I don't know, sir. I'd have to look and

20 see.

21 Q. Who would be on top of that; Mr. Maffei?

22 A. Yes, Dr. Maffei.

23 Q. Okay.

24 Turn to Page 35, please.

25 A. Okay, sir.














315
1 Q. Do you recognize that?

2 A. As a page out of this report, yes, sir.

3 Q. Do you recognize this as anything else?

4 A. Do I recognize it as anything else?

5 Q. You've never seen this?

6 A. Yes, I have.

7 Q. Out of your file?

8 A. I said, sir, I recognize it as a page out

9 of this report.

10 Q. I'm asking if you recognize it as anything

11 else.

12 MS. PONZOLI: The question is unclear, Mr.

13 Earl. He obviously is confused by your

14 question. Maybe you'd like to reword it. It

15 would help him.

16 BY MR. EARL:

17 Q. I'd like to know, do you recognize -- have

18 you ever seen this in files other than as part of Work

19 Order 32, this map?

20 A. In my files? No, this particular map

21 right here was generated by work by the University of

22 Florida coop unit, a part of Work Order 32.

23 Q. Why, at the bottom, does it say Figure 8,

24 vegetation cover map for 1952, Mr. Neely?

25 A. Because this is what this particular page














316
1 refers to, the cover type map that was done in 1952.

2 Are we talking about the page or are we were talking

3 about the detail -- the information on the map.

4 Q. We're talking about what is represented on

5 the map.

6 A. Okay.

7 What is represented on the map is a

8 vegetation cover map for 1952.

9 Q. And have you ever seen that prior --

10 A. Someone's interpretation of that.

11 Q. Have you ever seen that prior to Work

12 Order 32?

13 A. I may have. I don't recall, sir.

14 Q. Okay.

15 You didn't -- did you use it in forming

16 your opinion?

17 A. I use Work Order 32.

18 Q. But did you use the 1952 vegetative map

19 independently?

20 A. No, sir, not independently.

21 Q. Okay.

22 Had you used those transects we talked

23 about earlier, analysis of those transects?

24 A. I use the data that was assimilated in

25 Work Order 32 that developed the information from all














317
1 of that data that was collected in earlier years.

2 Q. Okay.

3 Tell me what, if anything, you know about

4 this vegetative cover map, the data depicted on Page

5 35.

6 A. What do I know about it?

7 Q. Who did it?

8 A. In 1952?

9 Q. Yes.

10 A. I don't know, sir. I'll have to go back

11 to the records to see who the person is that compiled

12 that.

13 Q. Have you ever evaluated the reliability of

14 this yourself?

15 A. No, sir. I've not done any studies to

16 evaluate the -- and there's no way we could go back to

17 1952 to evaluate the data, other than maybe through an

18 extensive interpretation of earlier travels of that

19 area.

20 Q. Okay.

21 Look at Page 36.

22 MS. PONZOLI: Mr. Earl, may we take a

23 break for about five minutes? I mean, you can

24 finish whatever your line is you're doing, if

25 you have some particular line. I don't mean to














318
1 interrupt you. I'd just like to take a short

2 break.

3 MR. EARL: Sure. Let's finish Page 36

4 then.

5 THE WITNESS: Okay.

6 MS. PONZOLI: Fine.

7 BY MR. EARL:

8 Q. What is this? Have you ever seen this

9 before, other than Work Order 32?

10 A. No, sir.

11 Q. You never seen the data?

12 A. Not that. Not that I recall that I ever

13 did, I ever specifically unrolled a map that showed

14 vegetative cover for '68.

15 Q. Have you ever seen it displayed, a GIS

16 system, or any other way?

17 A. No, sir.

18 Q. Okay.

19 There's a category nine there called

20 maidencane.

21 A. Yes, sir.

22 Q. We'll talk about that later. Now, Page

23 37.

24 A. Okay, sir.

25 Q. Purports to be a map showing location of














319
1 vegetative photoplots, vegetative transects A through C

2 and gauging stations?

3 A. Yes, sir.

4 Q. Now, are you familiar with those

5 vegetative photoplots, ever been to the sites of those?

6 A. Since there's many of them there, that one

7 adjacent to gauge 1-7, I know I've been there.

8 Q. Have you been there to examine any of the

9 vegetation?

10 A. No, sir. I've been there for another

11 reason.

12 Q. What was that?

13 A. To examine the gauge station, to locate

14 the gauge station so I'd have knowledge of where it

15 was.

16 Q. Okay.

17 You haven't been out to these individual

18 transects, have you, sir?

19 A. Not specifically to go to that plot to

20 that station. I may have been by them. I may have

21 seen them from the air, because my understanding is

22 that they are marked. And I have seen some markings in

23 the -- in the interior of the Refuge. I did not relate

24 them specifically to this as I flew over.

25 Q. How are they marked, by what?














320
1 A. I don't know whether these are the

2 specific gauge stations or transect stations that I --

3 or the photoplots. It says photoplots... Let me look

4 at this a little closer.

5 This says a map showing locations of

6 photoplots 1-7 and vegetation transects A through C.

7 Photoplots 1-7. I've been to photoplot 1-7. And the

8 vegetation transects A, B and C. No, sir, I don't

9 think those are marked. I'm not sure on the location.

10 They must be marked in some manner, but I don't know

11 how.

12 Q. Who would know that; Dr. Maffei?

13 A. Dr. Maffei would know that.

14 Q. Okay.

15 And photography has been done in the last

16 several years on those sites, hasn't it, aerial

17 photography?

18 A. Oh, yes, sir. There's aerial photography

19 that's been done in '80s.

20 Q. No. I'm talking about specifically for

21 sites A, B and C for comparison purposes.

22 A. That doesn't say that there were

23 photoplots.

24 Q. I'm not asking what it says. I'm asking

25 what you know, sir. Do you know?














321
1 A. I don't know, sir, whether photography has

2 been done specifically of those sites or not.

3 Q. Okay.

4 Again, that would be Dr. Maffei?

5 A. Yes, sir.

6 MR. EARL: Okay.

7 Take a break right now for five minutes?

8 MS. PONZOLI: That would be great. Thank

9 you.

10 (Whereupon, a brief recess was taken.)

11 BY MR. EARL:

12 Q. Please go to Page 40 and 41, sir.

13 A. Page 40 and 41. Okay.

14 That's the 18 vegetation classifications.

15 Q. What are the 18 vegetative

16 classifications, as you understand them?

17 A. As I understand them, it's the list here

18 that was used in the classification of a satellite

19 image.

20 Q. Well, what -- what vegetative

21 classifications do you use, as refuge manager, in

22 describing vegetative communities? Do you use this

23 list?

24 A. Generally speaking, I say there are four

25 types of vegetative communities.














322
1 Q. Okay.

2 A. If you want to get into -- down to

3 specific vegetation, I would refer to this map. This

4 is the latest and best data that I know of.

5 Q. Okay.

6 And you agree with these classifications

7 based on your own experience?

8 A. Yes.

9 Q. Okay.

10 And are these -- this table also lists

11 acreage calls and percentages. What do you understand

12 those to be?

13 A. At that particular time, that was the

14 classification for that amount of acreage on that

15 particular satellite image.

16 Q. Okay.

17 This was when, as you understand it?

18 A. I don't recall the date, an exact date on

19 the satellite image, Mr. Earl.

20 Q. Okay.

21 A. It would be referenced in this report

22 somewhere, but I'd have to look for it.

23 Q. Do you have more -- do you have access to

24 more recent --

25 A. I don't know, since I don't know the date














323
1 on this one, I'd have to check and see, but I think

2 there are -- I'm sure there are additional images

3 available. I don't know whether I have them or have

4 access to them.

5 Q. Would you go to the last two pages of your

6 document, please, in the very back? Do you have a --

7 A. Okay.

8 Q. Have you seen that?

9 A. I said I knew there was some reference to

10 it in here, yes. This is the -- apparently the image

11 they used.

12 Q. Okay.

13 You've seen that image before, haven't

14 you?

15 A. Yes.

16 Q. You used it before, before the Water

17 Management District Governing Board, haven't you?

18 A. This particular image?

19 Q. Yes, sir.

20 A. I think that I've used that image before.

21 Q. Okay.

22 A. Or if not this particular one, but one

23 similar to it or a duplicate of it.

24 Q. Okay.

25 And this is based on what year; you still














324
1 don't know?

2 A. It's not labeled. I would have to look

3 back and see in their reference to see which particular

4 year this particular image was.

5 Q. Okay.

6 A. I'm sure they referenced the date on the

7 image somewhere on here.

8 Q. It's '87, isn't it?

9 A. I don't know, sir. As I said, I'd have to

10 look and see what reference they used.

11 Q. Would you look and see then?

12 A. It shows 1987, says vegetative classes

13 from the 1987 classified vegetation map related, and I

14 assume that's the one they're using.

15 Q. Assuming that's the case, going back to

16 Table 40, if you would.

17 MS. PONZOLI: Which page is that, Mr.

18 Earl?

19 MR. EARL: Page 40. Excuse me.

20 THE WITNESS: Okay, sir.

21 BY MR. EARL:

22 Q. We now assume this is based on 1987, which

23 is where our questioning starts out, these acreage

24 calls, do you have any access to any more recent

25 analysis of the size of these respective communities














325
1 since 1987?

2 A. Do I have access to it?

3 Q. Have you seen them? Do you know they

4 exist?

5 A. I know that there are additional satellite

6 images.

7 Q. And has there been analysis that you've

8 seen or heard about of the acreage?

9 A. I don't know.

10 Q. You haven't heard about any?

11 A. I don't know whether it's been classified

12 or not.

13 Q. Who would know; Dr. Maffei?

14 A. Dr. Maffei may know. The folks at Water

15 Management may know because they purchased the

16 satellite images.

17 Q. You haven't purchased any in Loxahatchee

18 under your --

19 A. Since '87, I don't think that we have

20 purchased any. I am not absolutely certain on that,

21 but I do not think we have purchased any since then.

22 Q. Has anybody else in the federal

23 government, to your knowledge?

24 A. In the federal government?

25 Q. Yeah.














326
1 A. In that I have no earthly idea, that's too

2 broad a spectrum.

3 Q. Anybody at the Everglades National Park?

4 A. I don't know what they-re -- I do not

5 know.

6 Q. Anybody working for the Department of

7 Justice?

8 A. I have no -- I have no idea.

9 Q. Okay.

10 Has EPA flown any high altitude of

11 Loxahatchee, photographs of Loxahatchee in the last

12 three years?

13 A. I have no --

14 Q. Who would know; Dr. Maffei again?

15 A. I don't know whether he would even know

16 that or not. You'd have to ask somebody from EPA.

17 Q. Okay.

18 So as we sit here today, Pages 40 and 41,

19 Table 8 of the Work Order 32, is that the most recent

20 acreage analysis of the vegetative communities in

21 Loxahatchee of which you are aware?

22 A. Of which I am aware? I would say that it

23 would be.

24 Q. You indicate a qualification. Is there

25 something else?














327
1 MS. PONZOLI: Mr. Earl, you're badgering

2 him to death on this. No wonder he hesitates.

3 THE WITNESS: My answer is yes.

4 MR. EARL: Okay.

5 A witness qualifies an answer and I need

6 to explore that. It's my job.

7 MS. PONZOLI: I don't mind you doing your

8 job, Mr. Earl. I just think you pound something

9 to death.

10 BY MR. EARL:

11 Q. How would using this table, which you

12 believe to be the most recent analysis, would you go

13 about determining the total area of cattail in

14 Loxahatchee, sir? You told me --

15 A. For this particular point in time?

16 Q. Yes, sir, or more recently.

17 A. I wouldn't have to do any determination.

18 It's already classified in acreage here.

19 Q. Okay.

20 And --

21 A. For that particular point in time that

22 that satellite image was taken.

23 Q. Okay.

24 And what is the acreage?

25 A. For what?














328
1 Q. For cattail?

2 A. Well, cattail is listed several times

3 through there.

4 Q. Okay.

5 A. Number two, number ten, and number 18.

6 Q. Okay.

7 Am I correct in understanding if I were to

8 total the acreage to cattails in categories two, ten

9 and 18, I would have the number of acres of cattail in

10 Loxahatchee?

11 A. No, sir. You'd have the number of acres

12 that's classified on that satellite image as cattail.

13 Q. Are you aware of any more precise

14 classification?

15 A. No, sir. But I do know there's more

16 cattail.

17 Q. Okay.

18 That would be the best classification

19 available totaling number two, ten and 18, correct?

20 A. In this report.

21 MS. PONZOLI: Object to the form.

22 THE WITNESS: In this report, sir.

23 BY MR. EARL:

24 Q. Okay.

25 Well, do you know of any better














329
1 categorization?

2 A. I don't know of any, but I can't state

3 that there aren't others.

4 Q. Okay.

5 You haven't seen them if there are,

6 correct?

7 A. No, sir.

8 Q. Why aren't -- why aren't Melaleuca listed

9 on this? Where would I find the Melaleuca?

10 A. I don't have any idea, sir. I'd have to

11 look and see.

12 Q. Okay.

13 A. And I'm not sure that Melaleuca shows up

14 in -- as a vegetation that could be done under

15 supervised classification. That's a very technical

16 question that I could not answer.

17 Q. Okay.

18 A. You would have to ask the people that did

19 the classification of satellite image.

20 Q. Okay.

21 Where would I find the willow areas, in

22 what number of groups?

23 A. You may be able to find it in four. Since

24 the category lumps brush together I'm not sure what

25 that definition it is. You may find willow in number














330
1 seven, which is -- lumps tree islands as a category

2 although it names a couple. Again, brush in number

3 eight. Again, tree islands in number 13, which

4 specifically mentions willow. Number 14, which

5 specifically mentions brush tree island category.

6 Number 15, which mentions brush, sawgrass brush. There

7 may be some willow in that -- in that brush. Number

8 17, which is tree island willow. I'm --

9 Q. Go ahead, sir.

10 A. That sums up the categories where you

11 could -- that you could make that could have willow in

12 them.

13 Q. Well, 13 and 17 are -- are the only two

14 that specifically include willow expressly; is that

15 correct?

16 A. As far as I can tell, yes.

17 Q. Okay.

18 Are you familiar -- do you use these

19 categorizations yourself?

20 A. (No response.)

21 Q. Do you use the four basic categories?

22 A. Well, the four basic categories would -- a

23 couple of these are plant -- these are classifications,

24 these are vegetative community classifications.

25 Q. Okay.














331
1 A. The four categories that I used are

2 general habitat types.

3 Q. And are each of those classifications --

4 do they fall into a general habitat type?

5 A. One or the other.

6 Q. Okay.

7 Could you tell?

8 A. Vice versa.

9 Q. Tell me which of these would fall into

10 which of your four categories?

11 A. All of them.

12 Q. Okay.

13 One of your categories is wet prairie, is

14 it not?

15 A. Yes.

16 Q. Okay.

17 Which of those 18 categories would

18 constitute wet prairie under your class?

19 A. Under a vegetation classification; under a

20 supervised vegetation classification as it is listed

21 here --

22 Q. Okay.

23 A. -- I see wet prairie in number six, number

24 nine. Those are -- are the two that I see it in on

25 this list.














332
1 Q. Would 11 or 12 aquatic be in that group?

2 A. Well, it's listed as open water or slough.

3 And then number 12 says very sparse wet prairie. You

4 have to remember, Mr. Earl, supervised classification

5 only -- has limitations, they cannot detect every piece

6 of plant on the Refuge.

7 Q. I understand that. But I'm asking in your

8 broad category of wet prairie, which of these numbers,

9 categories would you incorporate in that one?

10 A. Under wet prairie?

11 Q. Yes, sir.

12 A. I would incorporate the ones that I just

13 named for you.

14 Q. Six and nine?

15 A. Number six and number nine, and apparently

16 then number 12 there's some very sparse wet prairie.

17 I'd have to include that if we were talking

18 specifically wet prairie.

19 Q. Okay.

20 A. There may be wet prairie in -- very sparse

21 wet prairie in some of the others. I don't know.

22 Q. Okay.

23 And your next category, one of your other

24 four categories is tree islands, correct?

25 A. Yes.














333
1 Q. And which of these category

2 classifications would fit into your general tree island

3 category?

4 A. Well, a tree island can be made up of

5 numerous types of vegetation --

6 Q. Um-hum.

7 A. -- based on a tree island generally has a

8 range of sawgrass around it surrounded by a slough.

9 And the tree island itself then would be -- could be a

10 brushy tree island or it could have tall trees on it.

11 And this could include -- depends on how they made this

12 determination on classification, a tree island could

13 have a brushy end and tree island end. It could have

14 sawgrass mixture in the brush, so I'm not sure where

15 all of this would fall, specifically.

16 Q. Okay.

17 You're unable to answer that in terms of

18 these --

19 A. I can tell you which ones they name as

20 tree islands.

21 Q. Well, that would be five, seven, thirteen,

22 fourteen, correct, and seventeen?

23 A. That they specifically name as tree

24 islands, yes.

25 Q. Okay.














334
1 In your view, would any of those other

2 specific categories and acreage fall within your

3 general tree islands category?

4 A. If I were to look at an area that was on

5 aerial that may be brush, I might include it as a tree

6 island. I would have -- it would be a -- just a

7 determination that I would make from looking at a

8 photo.

9 Q. Okay.

10 What is your third category? Wet prairie,

11 tree islands --

12 A. Sawgrass.

13 Q. Which of these categories would you put in

14 your general category as sawgrass?

15 A. Number one has sawgrass. Number two

16 mentions sawgrass. Number three mentions sawgrass.

17 Number four mentions sawgrass. Number six mentions

18 sawgrass. Number nine mentions sawgrass. Number 15

19 mentions sawgrass. Number 14 mentions sawgrass.

20 Number 16 mentions sawgrass.

21 Q. You say mentions sawgrass, but aren't you

22 talking about a sawgrass community, something in which

23 sawgrass is predominant?

24 A. We're talking about vegetation communities

25 under this supervised classification.














335
1 Q. That's correct. And we're putting them

2 into your broader categories of communities, right, wet

3 prairie, tree island, sawgrass --

4 MS. PONZOLI: We're attempting to, Mr.

5 Earl. He told you they overlapped. He's

6 attempting to accommodate your question, but --

7 which can't be met in exactly the way you asked

8 it. He explained that to you.

9 BY MR. EARL:

10 Q. So you would include every category that

11 mentions sawgrass in your general sawgrass based on

12 what you know now?

13 A. The four habitat types that I mentioned

14 are very general characterizations of northern

15 Everglades habitat. These are very specific vegetative

16 classifications, community classifications from a

17 specific point in time, from a specific image done by a

18 specific person.

19 Q. And what is the fourth category?

20 A. Sloughs.

21 Q. Now, which of those categories would you

22 put in your slough category, generally?

23 A. Generally speaking, I would include -- I

24 could include number 11 as a slough classification in a

25 very broad sense. Number 12 specifically says aquatic














336
1 slough. I don't see any other reference to sloughs

2 there.

3 Q. Okay.

4 So it would be 11 and 12. In 11, Fish and

5 Wildlife Work Order 32 says open water 282 acres .2

6 percent, mostly identified as deep water along

7 Hillsboro Canal. In your understanding of these

8 classifications, what does deep water mean, do you

9 know?

10 A. You're referring to number -- which one?

11 Q. Eleven, sir.

12 A. Number 11?

13 Q. Yes.

14 A. They're referring to the flats in that

15 particular area.

16 Q. Okay.

17 What is your understanding --

18 A. That's the general term, I talk about the

19 flats.

20 Q. Okay.

21 What is your understanding as they use

22 deep?

23 A. I have no -- I don't understand what they

24 mean by deep. It's not specified in this particular

25 sentence.














337
1 Q. Okay.

2 Let me ask you, sir, to go to Page 65.

3 A. What page, sir?

4 Q. Sixty-five.

5 A. All righty.

6 Q. Very last sentence at the bottom of the

7 page.

8 A. Yes.

9 Q. Phosphorus inputs through S-5, S-6 showed

10 is greater variation than the water inputs, suggesting

11 that water -- then you have to go to Page 70 for

12 this -- suggesting that water routing management

13 decisions tied to weather patterns play a role in the

14 export of nutrients from the EAA. Do you agree with

15 that?

16 A. Yes.

17 Q. Okay.

18 Page 71. This purports to be a map of

19 water quality sampling sites. You talked to me a

20 little bit yesterday about water quality sampling

21 sites. Can you -- are you familiar with these sites?

22 A. These are the 16 sampling sites that are

23 referred to.

24 Q. In the exhibit to the settlement

25 agreement?














338
1 A. Yes. And the SWIM Plan.

2 Q. That's all that's depicted here?

3 A. No, sir. There's other things depicted.

4 It shows the S-6, the S-5A.

5 Q. I understand that. I'm asking about water

6 quality sampling sites.

7 A. I don't know what the other sites that are

8 listed there, CA1-42 or CA1-06 are, they don't give

9 a -- what do they show in their -- their key. Water

10 quality sites, that's supposedly all of the sites

11 indicated here with the exception of the pump stations,

12 and they even appear to be keyed as water sampling

13 sites with the exception of the 344 outgoing

14 structures.

15 Q Do you know what the CA1 designated sites

16 are, sir?

17 MS. PONZOLI: Asked and answered, wasn't

18 it?

19 MR. EARL: No.

20 THE WITNESS: C --

21 BY MR. EARL:

22 Q. You didn't tell me --

23 A. CA1 dash, that type of site?

24 Q. Yes, sir.

25 A. One through sixteen, those are -- are the














339
1 16 sites referred to in the exhibit in the settlement

2 agreement.

3 Q. I'm talking about CA1-39, CA1-34.

4 A. No, sir. I don't know what those numbers

5 are. Where -- I see CA1-42, 1-39, they're depicted in

6 the key as water quality sampling sites, but they're

7 not part of the 16.

8 Q. Okay.

9 And the same is true of C1-55 along the

10 eastern side there, CA1-03?

11 A. I don't know what that represents, sir.

12 I'm not familiar with that, that key.

13 Q Do you know of any water quality sampling

14 located at those sites?

15 A. Do I know who?

16 Q. Have you any water quality sampling that's

17 been done at those sites?

18 A. Specifically, no.

19 Q. How about generally?

20 A. Generally I'm make a deduction here that

21 they're listed as quality sampling sites and they

22 were -- there was water quality sampling there.

23 Q. But that's all you know?

24 A. Yes, sir.

25 Q. What is the average yearly rainfall,














340
1 roughly, from the Loxahatchee, rule of thumb?

2 A. Rule of thumb, 60, 65 inches.

3 Q. And what is the evapotranspiration rate

4 again, roughly, generally?

5 A. Rule of thumb, I do not know, sir. But I

6 would say it would have to be less than 50 percent.

7 Q. Less than 50 percent of what?

8 A. Of rainfall.

9 Q. Okay.

10 So it would be 30, in that neighborhood?

11 A. Less than 50, Mr. Earl.

12 Q. Less than 50 inches or percent?

13 A. No, sir.

14 Q. You got me lost there.

15 A. No, sir. You asked for rainfall. I gave

16 you a ballpark estimate.

17 Q. Sixty-five?

18 A. Sixty to sixty-five inches per year.

19 Q. Okay. Okay.

20 And did you give me an ET of 50 percent of

21 that as opposed to 50 inches?

22 A. An ET of approximately 50 percent.

23 Q. Okay.

24 Would you go to Page 94, please? Last

25 paragraph, first sentence. The average yearly rainfall














341
1 for the Refuge was 46.7 inches?

2 A. That's an average for a period of what, 16

3 years?

4 Q. Um-hum.

5 A. Yes, sir.

6 Q. You're using 60 to 65, a longer period of

7 record?

8 A. No, sir. Probably a shorter period of

9 record.

10 Q. Okay.

11 What was your 60, 65 rule based on?

12 A. (No response.)

13 Q. I'm just trying to understand the

14 substantial difference.

15 A. Measured rainfall for some years.

16 Q. What years?

17 A. I don't know, sir. I'd have to look and

18 see.

19 Q. Okay.

20 A. I'd have to go to a rainfall chart to find

21 that, sir. I'm not sure it's included in this

22 document, or at least I can't locate it very rapidly in

23 the index if they have a rainfall by year. I don't

24 I -- don't know whether they have a chart in here

25 that's rainfall by year. I don't see one. Would you














342
1 like for me to keep looking?

2 Q. No, it's not essential that we find it

3 now. That's all right.

4 A. Okay.

5 Q. Would you describe the hydrological data

6 from the interior of the Loxahatchee as pretty sparse?

7 MS. PONZOLI: Object to the form.

8 THE WITNESS: I don't know what sparse is,

9 compared to what?

10 BY MR. EARL:

11 Q. Well, compared to Water Conservation Area

12 2.

13 MS. PONZOLI: Same objection.

14 BY MR. EARL:

15 Q. Let me ask you another way.

16 How many -- how many monitoring stations,

17 water level stations are there?

18 A. For water level?

19 Q. Yes.

20 A. There are numerous gauges located

21 throughout Water Conservation Area Number 1.

22 Q. How many permanent water level recorders

23 are there in the Refuge?

24 A. Permanent water level recorders?

25 Q. Um-hum.














343
1 A. I'm -- what do you mean by permanent water

2 level? That could be -- that could be a -- a staff

3 gauge nailed to a board.

4 Q. How many water level recorders have been

5 there since 1950?

6 A. I'm not sure there were any there in 1950.

7 Q. Okay.

8 Let's go to Page 100 of the report.

9 A. Okay. Okay, sir.

10 Q. Last sentence, bottom of the page, three

11 permanent water level recorders located within the

12 Refuge, Figure 10, have been in operation since the

13 1950s.

14 A. Okay, sir.

15 Q. Do you agree with that?

16 A. I take it for what it's worth there. I

17 would have no reason to disagree with it.

18 Q. Okay.

19 The 1-8C, gauge is located in the canal on

20 the east side of the Refuge.

21 A. 1-8C is located in the L-40 canal on the

22 east side of Refuge, yes.

23 Q, And the 1-7 and 1-9 gauges in the interior

24 of Refuge?

25 A. That's correct.














344
1 Q. Okay.

2 A fourth gauge, the 1-8T, located about a

3 one quarter mile west of the 1-8C gauge in the interior

4 has a shorter period of record. That's a quote. The

5 rest of it, let me go down two sentences, water levels

6 in the canal (1-8C) have the greatest range and are

7 much lower than levels at 1-7 and 1-9 from March to

8 July. Do you agree with that?

9 A. Are from March to July of what year?

10 I'm -- I don't know whether I could agree with that or

11 not. It's not specific enough.

12 Q. Okay.

13 Let's go to Page 107.

14 A. Okay, sir.

15 Q. Second paragraph from the bottom,

16 hydrological data for the interior of the marsh was

17 very sparse (two interior gauge stations).

18 A. Second paragraph from the bottom

19 hydrological data...

20 Q. Do you agree with that?

21 A. They -- they -- whoever wrote this

22 considered it to be sparse.

23 Q. Well, do you?

24 MS. PONZOLI: Object to the form.

25 THE WITNESS: I --














345
1 MS. PONZOLI: Asked and answered before.

2 THE WITNESS: I considered it adequate.

3 BY MR. EARL:

4 Q. Adequate for what purpose?

5 A. Whatever purposes they were established

6 for.

7 Q. You wouldn't like to have more long term

8 water level gauges?

9 MS. PONZOLI: It's a different question,

10 Mr. Earl.

11 THE WITNESS: Well, I would like to have

12 more long term data.

13 BY MR. EARL:

14 Q. The north end of Refuge has a much greater

15 variance in hydroperiod than the south end, does it

16 not?

17 A. I beg your pardon, sir?

18 MR. EARL: Would you repeat the question?

19 (Thereupon, a portion of the record was

20 read back by the court reporter.)

21 THE WITNESS: I would have to say no,

22 because water is generally level unless it's

23 flowing downhill.

24 BY MR. EARL:

25 Q. Go to Page 113, please.














346
1 A. Okay, sir.

2 Q. Last sentence, the bottom of that page.

3 The north end has a greater -- much greater variance in

4 hydroperiod than the south end. Do you agree with --

5 do you disagree with that?

6 A. Do I disagree with that statement?

7 Q. Yes, sir.

8 A. I would have to ask the person who wrote

9 that statement to explain to me what he means, was

10 there more, was there less area flooded or more area

11 flooded on the north, or dry on the north end than was

12 flooded deep on the south end, there's variance in

13 hydroperiod also on the south end.

14 Q. I believe they would mean within a given

15 period of time.

16 MS. PONZOLI: Excuse me. I didn't hear.

17 THE WITNESS: I didn't understand that

18 either.

19 BY MR. EARL:

20 Q. Okay. Let's go on.

21 Hydroperiod variance chart which they

22 prepared for use.

23 A. Which is where?

24 Q. Well, it's -- let's find it. Page 118. I

25 ask you, as refuge manager, do you have any idea what














347
1 this depicts, sir?

2 A. If I were to look at that, my

3 interpretation of that would be the area that was --

4 that was exposed by low water levels, not variance in

5 hydroperiod, i.e., as opposed to deep water on the

6 south end.

7 The variances are greater on the north end

8 from a drained area as water levels go down and not as

9 great on the south end where the elevation is lower.

10 Q. That's what you -- that would describe the

11 term hydroperiod variance in your mind?

12 A. Yes.

13 Q. Okay. That's all I wanted to know.

14 Is hydroperiod variance greater in the

15 north end of Loxahatchee than it is in the south end,

16 using your definition?

17 A. Is hydroperiod variance greater, Mr. Earl?

18 Water levels are hydroperiod; is that right, is that

19 your interpretation of hydroperiod?

20 Q. I'm not answering questions. I'm --

21 MS. PONZOLI: But you're asking them in a

22 confusing way, Mr. Earl. He's trying to answer.

23 THE WITNESS: I will be happy to --

24 MS. PONZOLI: So -- wait, wait, Mr. Neely.

25 Let me get my objection on the record. I get to














348
1 finish too.

2 THE WITNESS: All right.

3 MS. PONZOLI: You're asking it in a

4 confusing way, and he's trying to answer you,

5 and I guess I'm going to object to your

6 obtaining some answer that really responds to a

7 very different question, because we seem to have

8 gone in circles on this issue. So if you'd like

9 to read back the question or restate your

10 question back, I think we're thoroughly confused

11 at this point.

12 MR. EARL: Read back the witness' last

13 answer where he described page 118 and

14 hydroperiod variance.

15 MS. PONZOLI: Can you read back the whole

16 series? I just think it's -- I think there's a

17 whole confusing series going on here. I just

18 want to hear the whole set before he answered

19 the question for Mr. Earl. Okay.

20 (Thereupon, a portion of the record was

21 read back by the court reporter.)

22 MS. PONZOLI: Do you need any more, Mr.

23 Neely?

24 THE WITNESS: No, no. I've got --

25 MS. PONZOLI: Okay.














349
1 THE WITNESS: -- 118, an explanation for

2 118 right here.

3 MS. PONZOLI: Okay.

4 He's going to answer -- ask you another

5 question.

6 BY MR. EARL:

7 Q. Okay.

8 What is your definition of hydroperiod,

9 specifically?

10 A. Depth of water.

11 Q. Is it related to time?

12 A. Well -- hydroperiod?

13 Q. Yes.

14 A. Yes. Depth of water is related to time,

15 as to whether an area is wet or dry.

16 Q. Over a period of time?

17 A. Yes.

18 Q. And what is your definition of hydroperiod

19 variation?

20 A. As it relates to Page 118?

21 Q. As it relates to the way you use the term.

22 A. As to whether an area is dryer, has water

23 on it, or is exposed?

24 Q. Is that also related to time?

25 A. Yes, sir. It would have to be over -- you














350
1 could pick a day, a variance of a hydroperiod of day or

2 a week or a month or a year. You could classify the

3 hydroperiod in any number of ways.

4 Q. Is there a standard way, when you

5 generally talk about hydroperiod, you talk about a year

6 or months?

7 A. No, I don't think there's any -- I think

8 you could interpret it any way you wanted to.

9 Q. How did you interpret it?

10 A. How do I interpret hydroperiod?

11 Q. Yeah. Do you use -- when you say

12 hydroperiod, are you talking about a year, or any fixed

13 period, normally?

14 A. No. In this particular chart it's

15 referred to as monthly.

16 Q. Okay.

17 A. In looking at Number 118, Page 118, I

18 would say -- no, yearly. I would say this is the

19 yearly variation, so it was done over a ten year

20 period.

21 Q. Okay.

22 How would you describe the difference in

23 hydroperiod in the northern part of Loxahatchee and the

24 southern part of Loxahatchee?

25 A. The northern end of the Refuge is much














351
1 more susceptible to staying dry for longer periods.

2 Q. Than is the southern end?

3 A. Than is the south. Well, in the south

4 it's likely to be only be completely dewatered during

5 dry, very dry months.

6 Q. Is that true of the flat area? Has that

7 been dry in your experience?

8 A. I've seen it completely dry, yes.

9 Q. How often?

10 A. Only once or twice, maybe three times

11 since I've been here, during severe droughts.

12 Q. What is your understanding of the -- is

13 the distance from the canal, does that have any

14 relationship to the existence of cattails in the

15 Loxahatchee?

16 A. The distance from the canals?

17 Q. Yes, sir.

18 MS. PONZOLI: I didn't hear the question,

19 I'm sorry.

20 (Thereupon, a portion of the record was

21 read back by the court reporter.)

22 MS. PONZOLI: Do you understand the

23 question?

24 THE WITNESS: Um-hum. It started out one

25 way and changed and asked another question.














352
1 My understanding of cattails occurring

2 adjacent to the canals is nutrients, and the

3 further you go, the less -- away from the canal,

4 the less cattail you have.

5 BY MR. EARL:

6 Q. Was there disturbance on the -- let's

7 start with the L-40 canal. Do you -- your

8 understanding was that canal was developed and deepened

9 as part of the project; was there a disturbance on the

10 interior side of Loxahatchee?

11 A. I -- immediately adjacent to the canal, I

12 would say.

13 Q. Yes, sir.

14 A. There probably had to be.

15 Q. What would that be? What kind of

16 disturbance?

17 A. Either dewatering or -- I don't know. I

18 think the pictures that I've seen showed the dredges to

19 the -- in the canals as they dug them. There may have

20 been some type of small pieces of equipment along the

21 edge of the canal to supply fuel or logistics. I don't

22 know whether they did that by boat or not, since it was

23 done in the '50s. I do not know how, what disturbance

24 there was along the edge.

25 Q. What pictures have you seen of that














353
1 Loxahatchee? Have you seen pictures?

2 A. No. I've seen at the Water Management

3 District of generally the canal construction. Some of

4 them were where the -- were the L-7, some of them were

5 the L-40.

6 Q. Okay.

7 Under the current regulation schedule, are

8 you able to -- how far in from the L-40 canal, for

9 example, would the water go when you reach the top of

10 your schedule, 17 feet, as I understand it now?

11 A. What do you mean, how far was water?

12 Q. How far into the interior of the marsh the

13 canal water?

14 A. How far would the canal water go at 17

15 feet?

16 Q. Yes, sir.

17 A. That would depend on the antecedent

18 conditions of the marsh on the interior.

19 Q. Okay.

20 How far have you seen it go in as a

21 result?

22 A. I have no calculation of how far a

23 molecule of water goes from the canal to the interior

24 under the most varied of conditions. I do not -- I

25 can't answer that question for you.














354
1 Q. Do you have any, from your observations,

2 any conclusions or opinions?

3 A. On how far a molecule of water would go in

4 from the canal to the interior; no, sir, I don't have

5 anything to...

6 Q. Does the Work Order 32 model show that, as

7 you understand it?

8 A. It may try -- it may depict the impacts of

9 water from the canal to the interior. But I'm not sure

10 it shows if a drop of water was in the canal, how far

11 it might go into the interior under the varied

12 conditions.

13 Q. You have no opinion about that,

14 personally?

15 A. About a drop of water from the canal going

16 to the interior?

17 Q. About the canal going into the interior

18 generally along the fringe.

19 MS. PONZOLI: Object to the form. I think

20 that was asked and answered yesterday.

21 THE WITNESS: If the canal were to rise

22 suddenly as it did immediately following the

23 drought of 1981, the water would flow very

24 rapidly to the interior. If the canal rose very

25 slowly, depending on what stage the marsh level














355
1 of the water was, and what stage the canal was,

2 there may be very little flow into the interior.

3 BY MR. EARL:

4 Q. You talked about rate of flow. I'm -- my

5 question relates more whether you had an opinion how

6 far in it went if you had that sudden surge?

7 A. Mr. Earl, if there was no water in the

8 interior and the canal came up, I don't know how far it

9 could go into the interior before it was absorbed by

10 peat or the vegetation.

11 Q. What is the best simulation or modeling of

12 that that you're aware of? If I want to find that out,

13 where would I go?

14 A. I don't know. I'm not familiar with that.

15 Dr. Maffei could answer that for you.

16 Q. Let me ask you to go to Page 136, sir.

17 A. Table 18?

18 Q. Instead of there, let's go to Page 137, if

19 you would. The very last sentence at the bottom of

20 that page, almost all cattail found on the Refuge (89.6

21 percent of class 18 and 98.5 percent of class 10) is

22 within the first thousand meters -- go to Page 139 --

23 of the canal and literally all the remainder (9.5

24 percent of the class 18 and 1.0 of class 10) is found

25 in the next one thousand meters. Do you agree with














356
1 that?

2 A. With the exception that you may find

3 sprigs of cattail scattered throughout, recorded around

4 bird rookeries and alligator holes, that is generally a

5 true statement.

6 Q. That's the isolated areas you talked about

7 yesterday?

8 A. Yes.

9 Q. Page 137 also, sir, let me ask you to look

10 at that second paragraph on that page, first full

11 paragraph. Changes possibly due to hydroperiod effects

12 along the canals can also be noted. Let me ask you,

13 have you ever noted changes in vegetation due to

14 hydroperiod effects other than in that northern area

15 you talked about yesterday?

16 A. Yes, sir. I've seen, due to hydroperiod

17 changes when the hydroperiod would be on the low side,

18 that woody vegetation become established or moist soil

19 plants might grow there for a short period of time

20 until it was inundated again.

21 Q. Any other hydroperiod effects that you've

22 seen along the canals?

23 A. In relation to what, sir?

24 Q. In relation to changes from hydroperiod

25 that you've observed yourself.














357
1 A. Vegetation changes?

2 Q. Yes, sir.

3 A. I just stated, sir, that there's

4 temporary -- there would be temporary vegetative

5 communities that would come in if the surface was

6 exposed that would ultimately be inundated again when

7 the water levels rose.

8 Q. Okay.

9 And what community changes would those be,

10 what would you see?

11 A. You could see wild millet. You could see

12 some of the grasses. You could see potamogeton.

13 Q. Anything else you've seen yourself?

14 A. You -- there's numerous, numerous.

15 There's probably a long list of vegetation that might

16 come in if the peat were exposed for any specified

17 amount of time.

18 Q. Okay.

19 The next sentence of the Work Order 32

20 states on transect C from 1963 to 1966 sawgrass

21 decreased and wet prairie increased. Do -- you know

22 where transect C is, don't you, sir?

23 A. I -- we looked at a map area?

24 A. Yes.

25 Q. Look at figure ten, which is on Page 40 --














358
1 not -- it's not 40. I'll have to -- let's break here

2 if we can.

3 (Thereupon, a discussion was held off the

4 record.)

5 BY MR. EARL:

6 Q. Mr. Neely, do you know who established the

7 16 interior marsh stations that we talked about earlier

8 in Loxahatchee?

9 A. Who personally? No, I don't.

10 Q Do you know when they were established?

11 A. In the late '70s.

12 Q. Were they established by the Water

13 Management District or by the Fish and Wildlife

14 personnel?

15 A. I don't recall, Mr. Earl. I'd have to

16 look and see.

17 Q. Where would you look to find that out?

18 A. It would probably describe them in here

19 somewhere.

20 Q. You're referring --

21 A. If not, Dr. Maffei could tell me.

22 MR. EARL: Okay. Okay.

23 (Thereupon, a discussion was held off the

24 record.)

25 MR. EARL: Would you read back the last














359
1 question prior to the break, please, and the

2 answer?

3 (Thereupon, a portion of the record was

4 read back by the court reporter.)

5 MS. MISIAK: That's where you just read On

6 transect C from 1963 through 1966, that's the

7 second to the last paragraph.

8 MR. EARL: Okay.

9 BY MR. EARL:

10 Q. Work Order 32 states -- are you with me on

11 the second paragraph on Page 137?

12 A. Yes, sir.

13 Q. Third line from the bottom there, there

14 were large changes from wet prairie to less aquatic

15 communities such as sawgrass, brush and tree islands.

16 A. Wait a second. I thought I was with you.

17 MS. PONZOLI: I thought you --

18 THE WITNESS: 137, where are you reading?

19 BY MR. EARL:

20 Q. 137, I'm on the second paragraph.

21 A. Second paragraph.

22 Q. Three lines up from the bottom.

23 A. 33. Okay.

24 Q. Make it four lines. Between 1966 and 1987

25 there were large change from wet prairie to less














360
1 aquatic communities, such as sawgrass, brush and tree

2 islands.

3 A. You did say '66 to '87?

4 Q. That's what the work order says.

5 A. Yes, um-hum.

6 Q. And do you recall observing such changes?

7 A. Along that transect?

8 Q. Transects A and B, I believe.

9 A. I didn't specifically go to the transect

10 and analyze the transect on the ground, but I've -- can

11 look at their data here and see that they documented

12 some changes.

13 Q. You're looking at data from where, sir?

14 A. (No response.)

15 Q. What page?

16 A. Page 136.

17 Q. You have a table in front of you?

18 A. 136.

19 Q. 136? And what do you understand this

20 table to present?

21 A. That's for historic transects, one dated

22 1966, one dated 1963-64, and one dated 1987 that

23 indicate changes in the make -- in the vegetation.

24 Let's see, if I read the whole thing, summary of

25 historic vegetation transect data with comparisons to














361
1 classified vegetation map data.

2 Q. Okay.

3 And my question to you was, did you,

4 between '60 -- between 1981 when you first came there,

5 and 1987, did you see changes from wet prairie to less

6 aquatic communities, such as sawgrass, brush and tree

7 islands in the area of transects A and B?

8 A. I did not go to transects A and B

9 specifically. I mean in the general area of the Refuge

10 that's a question that's hard to answer, Mr. Earl. I

11 did not go to transect A to specifically make

12 comparisons as to whether there were changes.

13 Q. Did you observe any changes though?

14 A. I can't -- if I didn't go to the transect

15 I didn't observe them.

16 Q. You observe any changes in vegetation --

17 A. Yeah, I have seen changes in vegetation

18 around the Refuge since I was there.

19 Q. -- attributable to hydroperiod?

20 A. I've seen some probably attributable to

21 hydroperiod.

22 Q. Okay.

23 And not specifically transects A and B,

24 in the areas those transects are located, in the

25 general areas, have you seen changes?














362
1 A. Yes, I've seen some change due to -- due

2 to various factors.

3 Q. Including hydroperiod?

4 A. One that would cause -- the massive

5 drought in 1989, 1990 there was definite changes.

6 Q. The report talks about change between '66

7 and '87, so that would have been before that period,

8 wouldn't it?

9 A. Yes.

10 Q. Did you see change before that massive

11 drought you're talking about?

12 A. In those two specific areas?

13 Q. In the general location of those two

14 transects?

15 A. No, sir, I don't recall going to the

16 general location of those two transects and making any

17 type of general observations.

18 Q. Okay.

19 Where are those two transects? You have a

20 graphic there that shows that?

21 A. On Page 37.

22 Q. During the period '81 to '87, you were,

23 were you not, in the -- were you in the marsh in the

24 area of -- in that southeast quadrant where A is

25 located?














363
1 A. I've -- I have been in the marsh before

2 since I've been here.

3 Q. Did you have occasion to observe the

4 vegetative changes there at any time?

5 A. I had occasion to observe the vegetation

6 that was there. I have not made any comparisons on

7 exact changes.

8 Q. Okay.

9 How about where B is, that's where?

10 A. I've been in that area generally also.

11 Q. Is it that visible from the headquarters?

12 A. From my office?

13 Q. Well, from the dock there at headquarters.

14 A. From the boat ramp at headquarters I doubt

15 very seriously if it's visible from there.

16 Q. Is B north of the -- from there B north of

17 the boat ramp?

18 A. Yes, sir.

19 Q. Have you -- did you have occasion to

20 observe in the general area of B area north of the boat

21 ramp on the eastern side?

22 A. Well, Mr. Earl, it's more than a mile

23 north of the boat ramp.

24 Q. Okay.

25 A. And around the bend in the canal.














364
1 Q. Okay.

2 And between '81 and '87, did you observe

3 changes in vegetation there which you attribute to

4 hydroperiod?

5 A. I could possibly say there's some change

6 there that might be attributable to hydroperiod. I

7 can't say with specificity since I've been -- not been

8 in there and made a detailed study of what changes

9 resulted from.

10 Q. Are there cattails in that area?

11 A. Yes, sir.

12 Q. Have you observed cattails growing in that

13 area?

14 A. You mean growing? Yeah, if there's

15 cattails there, it's growing there.

16 Q. Have you seen the expansion, have you

17 observed that between '80 --

18 A. I've not measured any expansion, sir.

19 Q. Have you done it in the area of A?

20 A. No, sir, I have not personally measured

21 any -- any changes or any increase or decrease in

22 vegetation.

23 Q. So any observation you've made up to today

24 you haven't quantified those in terms of area or

25 density or anything of that nature?














365
1 A. No, sir. I'm not a technical person. I

2 don't do that. I'm a policy person.

3 Q. Okay.

4 What is a policy person and technical

5 person?

6 A. A technical person goes out and does the

7 analysis and studies that you've been talking to me

8 about. I don't do those things. I have staff that

9 does those type things.

10 Q. Based on what you've learned since coming

11 to the Refuge, do you agree that there were large

12 changes between 1966 and 1987 in vegetation

13 attributable to hydroperiod?

14 A. Relying on this data, I do.

15 Q. Okay.

16 Using that data, could you describe for me

17 the changes reflected in that data?

18 A. Yes, sir. On Page 136, which change would

19 you like for me -- for any of them particularly? You

20 want me to do the whole thing?

21 Q. Excuse me. The ones you believe may be

22 attributable to hydroperiod.

23 A. Well, I'm not sure any of them are

24 attributable solely to hydroperiod.

25 Q. Well, primarily to hydroperiod.














366
1 A. I'm not sure any of them are primarily to

2 hydroperiod. All I can do is relate the change

3 documented here, sir.

4 Q. And you have no opinion in these areas as

5 for what the cause of change?

6 A. Oh, I have an opinion.

7 Q. And what is that?

8 A. That opinion is that most of these changes

9 are caused by water quality.

10 Q. By nutrients?

11 A. Yes.

12 Q. Okay.

13 Which of these changes are not, in your

14 opinion, not caused by nutrients?

15 MS. PONZOLI: Object to the form.

16 THE WITNESS: I'm not sure that I can say

17 any of them are not somehow or another affected

18 by nutrients. In addition to, maybe I don't

19 know -- these changes could reflect several

20 things. I would have to finish reading what

21 their analysis here was to interpret their

22 chart.

23 BY MR. EARL:

24 Q. When you gave me your opinions yesterday

25 morning on the cause of nutrients, you told me one














367
1 thing you based it on was this document, correct?

2 A. Yes.

3 Q. And did it include those data sets?

4 A. These data sets?

5 Q. Yes.

6 A. Yes. It includes this whole document.

7 Q. Okay.

8 Including the data recorded in 136?

9 A. Yes.

10 Q. And tell me now what you relied on in this

11 data set on 136 to base your opinion on.

12 A. The data set indicates changes in the

13 transects that -- vegetative change in the transects.

14 Q. How did you determine those were not

15 caused -- any of these were caused -- were not

16 primarily caused by hydroperiod?

17 A. Give me time to read this document. I can

18 find the specific line that refers to the effects of

19 nutrients.

20 A. One sentence here, Page 157.

21 Q. Where are you?

22 A. Page 157.

23 Q. Um-hum.

24 A. Under the word outlook it says --

25 Q. 157, I don't -- oh, I see. Okay.














368
1 Go ahead.

2 A. You ready?

3 Q. Um-hum.

4 A. The future impacts of water quality on the

5 Refuge are multi-faceted due to differing vegetative

6 responses to the quality of water entering the Refuge.

7 That tells me that vegetation changes are related to

8 water quality.

9 Q. Okay.

10 And that's what you relied on?

11 A. This whole document, Mr. Earl, everything

12 that's in this document.

13 Q. Okay.

14 Well, I'm asking you about the data now on

15 136. How did you determine that changes reported on

16 Page 136 that none of them were caused by hydroperiod?

17 MS. PONZOLI: Object to the form. This

18 question has been asked and answered, asked and

19 answered, and asked and answered. And Mr. Neely

20 has told you what his answer is. I'm not

21 instructing him not to answer, but I think that

22 at some point a question becomes harassing when

23 it goes on and on and never really changes.

24 THE WITNESS: If you want to read back the

25 question again, please. I'm not -- looking for














369
1 something else in here. It will take me a

2 little bit.

3 Okay. What was your question?

4 (Thereupon, a portion of the record was

5 read back by the court reporter.)

6 THE WITNESS: Okay.

7 And in interpreting this table for you

8 using their data and the way they interpret it,

9 I can read you a sentence from Page 137.

10 BY MR. EARL:

11 Q. I'm asking not for theirs, I'm asking for

12 your interpretation, your opinions, sir. Give me

13 your --

14 A. My opinion is based on the data in this

15 document.

16 Q. Give me your interpretation.

17 A. Changes possibly due to hydroperiod

18 effects along the canals can also be noted, and then it

19 goes into detail about Transect C.

20 Q. And have --

21 A. So they interpret some of these changes to

22 be caused by hydroperiod.

23 Q. Okay.

24 And do you disagree with that?

25 A. No, sir, I don't disagree with that.














370
1 Q. So you --

2 A. Some of these changes could possibly

3 have -- changes possibly due to hydroperiod. Possibly

4 is the term they use.

5 Q. Okay.

6 That's Transect C. Now what about the

7 change at Transects A and B?

8 A. In interpreting their data, what do you

9 want to know about Transects A and B?

10 Q. I want to know whether you were able to

11 determine that none of the changes in Transects A and B

12 as reported on Page 136 were the result of hydroperiod.

13 MS. PONZOLI: Well, I guess my -- I have

14 my continuing objection, Mr. Earl. You continue

15 to ask the same question over and over again.

16 Mr. Neely continues to rely upon the whole

17 document, and you're forcing him to go back

18 through a 166 page document to find the precise

19 lines that -- that have influenced his opinion,

20 because he's told you he's relied upon the

21 documents. I think -- I think it's harassing.

22 MR. EARL: You want to present him as an

23 expert, he gives expert opinions, he says he

24 relies on the document and data in the document.

25 All we're doing is asking him what data and what














371
1 interpretation.

2 MS. PONZOLI: You got your answer. You

3 don't -- just don't like it.

4 BY MR. EARL:

5 Q. You can answer the question, sir.

6 MS. PONZOLI: Did you rely on the

7 document, Mr. Neely? I think the whole page is

8 of value to you.

9 THE WITNESS: Okay.

10 MS. PONZOLI: I don't plan to spend all

11 afternoon on the same question.

12 THE WITNESS: And your question was the

13 change. What change?

14 MS. PONZOLI: Why don't you read it back?

15 MR. EARL: Read back the question.

16 (Thereupon, a portion of the record was

17 read back by the court reporter.)

18 THE WITNESS: The report says that

19 possibly some of the changes due to hydroperiod

20 along the canals were also noted.

21 BY MR. EARL:

22 Q. Okay.

23 How do you relate what that says to your

24 opinion as to Transects A and B?

25 A. In my opinion of Transects A and B?














372
1 Q. Yes, sir.

2 A. Is that none -- would you ask me a full

3 question, sir?

4 MS. PONZOLI: I think we have asked

5 question so long it's now confusing, Mr. Earl.

6 Why don't you just frame it as a single question

7 for about the hundredth time?

8 I mean give --

9 MR. EARL: You can say all the things you

10 want, Ms. Ponzoli, but the question is he's been

11 the expert, he's giving an opinion. He's got to

12 explain the basis for his opinion.

13 MS. PONZOLI: He explained the basis for

14 his opinion.

15 MR. EARL: Waving the document in the air

16 is not the basis of an opinion.

17 MS. PONZOLI: I'm sorry, yes, it is a

18 basis of opinion. You can refer to an expert's

19 document as the basis of your opinion. Now, if

20 you, Mr. Earl, don't like that document as the

21 basis of the opinion, or you want to tear the

22 document to shreds, or you want to put 50

23 experts on the stand to say the document is a

24 piece of trash, that's your right.

25 MR. EARL: That's -- I'm not -- what I'm














373
1 trying to do -- what I'm trying to do is ask

2 this expert you've presented, I'm

3 cross-examining him regarding his opinion. He's

4 given some opinion. Now he's got to back it

5 with facts.

6 MS. PONZOLI: He has backed it with facts.

7 He has backed it with documents. I'm going to

8 tell you, Mr. Earl, you'll have a hard time

9 disqualifying this expert on the Refuge, 12

10 years of his experience on the Refuge are going

11 to be golden, and I have no lack of confidence

12 in his ability to be an expert on this subject,

13 so --

14 MR. EARL: Great. Now, let him answer the

15 question, please.

16 MS. PONZOLI: I've let him answer the

17 question. I mean I frankly think we're at the

18 point I should instruct him to stop being

19 harassed by you, but I'm not going to do that.

20 I'm going to let him keep answering the same

21 question, but you know, as we spend the

22 afternoon doing this, I think I'm going to talk

23 more and more, because I think we're wasting

24 time here.

25 MR. EARL: You're making a self-serving














374
1 statement. Let him answer a question, please.

2 MS. PONZOLI: I let him answer it again

3 and again.

4 MR. EARL: He hasn't answered it.

5 MS. PONZOLI: Yes, he has answered it.

6 BY MR. EARL:

7 Q. Have you determined, Mr. Neely, based on

8 the data reported on Page 136, that none of the changes

9 reflected in Transect A and B were the result of

10 hydroperiod?

11 A. No, because the document says changes

12 possibly due to hydroperiod.

13 Q. Okay.

14 A. Possibly due, I rely on that data, sir.

15 Q. Okay.

16 And in your opinion, were any of the

17 changes reported in Transects A and B on Page 136 the

18 result of hydroperiod?

19 A. In my opinion, were they the result of

20 hydroperiod? It's very possible that some of them

21 were, according to this document.

22 Q. And are you able to identify which changes

23 in the table on 136 might be, because of the nature of

24 the species or the community, might be able to be the

25 result of hydroperiod?














375
1 A. If I read their document in detail, I may

2 be able to come to a sentence that can do that.

3 There's a sentence here on Page 137.

4 Q. Yes, sir.

5 A. Middle of the second paragraph.

6 Q. Yes, sir.

7 A. It starts, during 19 -- during the 1963 to

8 1966 time period little change in the wet prairie

9 communities is noted on transects A and B; however,

10 between 1966 and 1987 there were large changes from wet

11 prairie to less aquatic communities, such as sawgrass,

12 brush and tree islands? That would lead me to believe

13 that possibly some of those changes are related to

14 hydroperiod.

15 Q. Okay.

16 Changes from wet prairie to less aquatic

17 communities such as sawgrass, brush and tree islands;

18 is that correct?

19 A. Yes, sir. That's what I just read.

20 Q. Okay.

21 Are you able -- having made that

22 determination, are you able to quantify in any way the

23 magnitude of the changes reported on Page 136 which

24 would be attributable to hydroperiod or nutrients?

25 A. No, sir.














376
1 Q. Okay.

2 Why aren't you able to do that?

3 A. Because that would take quite a bit of

4 inter -- technical interpretation of some very

5 technical data that was done to be interpreted, and I

6 am not a technical expert.

7 Q. Okay.

8 You said yesterday, when you gave me your

9 opinions about nutrients causing cattail along the

10 fringe of the canal, you told me you had observed the

11 expansion of cattails, did you not?

12 A. Yes, sir.

13 Q. Okay.

14 Where specifically did you make those

15 observations?

16 A. (No response.)

17 Q. If you can point to a specific location?

18 A. I can give you a general location around

19 the entire Refuge.

20 Q. Where would that be?

21 A. There's been -- I would consider in my

22 opinion there's been an expansion in -- anywhere along

23 the fringe of the area, fringe of the canal I would.

24 My opinion is that that expansion has taken place, and

25 when you look at the table here, you can see that














377
1 the -- on these transects alone that it has expanded in

2 those transects. That would lead me to believe that

3 it's expanded in other places.

4 Q. Okay.

5 But you haven't --

6 A. When I look at aerial photos also.

7 Q. Okay.

8 You did no measurements yourself, did you?

9 A. No, sir. I'm not out there doing

10 research, sir.

11 Q. Okay.

12 Have you yourself taken any photographs of

13 the cattails and the changes that you would be using --

14 A. No, sir.

15 Q. Okay.

16 Do you have -- have you taken photographs

17 yourself?

18 A. Yes, sir.

19 Q. Of the cattails?

20 A. I've taken photographs in the Refuge. I'm

21 sure there's some of with cattail in them. I've not

22 gone out there specifically to take photos of the

23 cattail.

24 Q. Have you taken any photographs which

25 you'll use for your testimony?














378
1 A. No, sir.

2 Of cattail?

3 Q. Of anything.

4 A. Be specific.

5 Q. Of anything.

6 A. Have I taken any photographs?

7 Q. Which would be used with your testimony.

8 A. As it relates to cattails, no.

9 Q. As it relates to anything else, have you

10 taken photographs?

11 A. I probably have taken some photographs

12 that indicate some management actions. I don't know

13 whether they'll be used or not.

14 Q. Indicate what management actions?

15 A. Some of the management actions in the

16 impoundment adjacent to the office.

17 Q. What photographs are those?

18 A. I've taken photographs of various stages

19 of the impoundment next to the office at different

20 times just out of routine documentation.

21 Q. Routine documentation of what?

22 A. Of the management of the impoundment

23 adjacent to the office.

24 Q. Okay.

25 Why would that be pertinent to your














379
1 testimony, if you know?

2 A. I didn't say it was. You asked me if I

3 had taken any photographs of cattails.

4 Q. Relating to possibly what you -- that you

5 would use to accompany your testimony in this case.

6 A. I think I'm listed as -- as refuge

7 manager -- as one of my areas as Refuge management.

8 Q. Okay.

9 And what would those photographs depict

10 that would be pertinent to your testimony, would what

11 show?

12 A. I don't know whether any of them would be

13 or not.

14 Q. How many of them are there?

15 A. I have no idea, sir. I've been there 12

16 years.

17 Q. Where are they?

18 A. All photographs were made available during

19 the FOI.

20 Q. I didn't ask you that, I asked you where

21 are they now?

22 A. The slides are at the Refuge in the slide

23 file cabinet, and there are some in narratives, they're

24 photographs, numerous reports. I don't know where they

25 all are, sir.














380
1 Q. Who would know, if you don't know?

2 A. Nobody. Nobody would know where they all

3 are.

4 Q. Okay.

5 So all the photographs you're talking

6 about you've already produced to us, correct?

7 A. They were made available, except for the

8 ones that probably -- that may have been taken -- you

9 saying all photographs, I guess you're referring to all

10 photographs of the Refuge?

11 Q. That you've taken.

12 A. That I've taken?

13 Q. That you may use in this case.

14 A. Well, I don't intend to use any

15 photographs on this case.

16 Q. I'll take you at your word.

17 Starting in 1981, how much -- how many

18 times did the -- you know, when I talk about the

19 evaporation percolation pond, do you know what I'm

20 talking about?

21 A. No, sir.

22 Q. Do you have a sewage treatment plant at

23 the Refuge?

24 A. Yes, sir.

25 Q. And do you have something that you have














381
1 described in your permanent application that you filed

2 as -- as an evaporation percolation plant?

3 A. Yes, sir. It's known as an impoundment

4 for B, I believe it was technically.

5 Q. Okay.

6 Did I phrase the question properly? Isn't

7 that you called it in your permit evaporation

8 percolation?

9 A. I believe that's what it may be referred

10 to in the DER permit.

11 Q. You said you've never heard of that

12 before. Didn't you just tell me that?

13 A. I don't know, sir, whether I said that or

14 not. Could you reread it back and we'll see if we can

15 clear it up real quick?

16 I have a sewage treatment plant that

17 empties into the impoundment known as 2-B.

18 MR. EARL: Would you go back to the

19 question, please, the first time I asked him?

20 (Thereupon, the pending question was read

21 back by the reporter as above recorded.)

22 THE WITNESS: Now, that you've refreshed

23 my memory on the sewage treatment plant, we have

24 an impoundment a sewage treatment plant empties

25 into, and I think in the DER permit it is














382
1 referred to as an evapotranspiration pond, yes.

2 BY MR. EARL:

3 Q. You signed and filed that permit, didn't

4 you?

5 A. Yes.

6 Q. Now, there used to be a -- what kind of

7 water control structure used to come out of that

8 percolating pond?

9 A. It was -- the technical name was a stop

10 log structure.

11 Q. And that's also known as what; Compartment

12 B?

13 A. I believe it's 2B. I'd have to look at

14 that map that we had this morning. I don't remember

15 which map that was now, but there it was on one of the

16 maps we looked at this morning.

17 Q. But as you sit here, it was -- it was 2B?

18 A. Yeah. It was a headquarters map, I

19 believe. I believe, to the best of my knowledge, it's

20 2B. It's a small eight acre, whichever one showed the

21 acreages of impoundments around the headquarters A, B

22 and C.

23 Q. Okay.

24 When you arrived in 1981, was -- was

25 sewage effluent going in there?














383
1 A. No, sir.

2 Q. When did it start going in there?

3 A. I don't recall the exact date, sir.

4 Q. When, approximately when?

5 A. I would be guessing. I just don't know,

6 sir, without referring to either the permit or to when

7 we installed the new sewage treatment plant.

8 Q. It was on your watch, though, wasn't it,

9 when it happened?

10 A. It's been done since I've been here, yes.

11 Q. It was done without a DER permit, wasn't

12 it, or HRS permit?

13 A. The installation of sewage treatment?

14 Q. Yep.

15 A. Yes, sir. It was done without permits.

16 Q. Okay.

17 And do I understand correctly that sewage

18 effluent went out of that?

19 A. Effluent from the sewage treatment plant

20 went into that impoundment.

21 Q. On occasion it went out of that

22 impoundment, didn't it not?

23 A. Never.

24 Q. Never?

25 A. Never, no, sir.














384
1 Q. There was never overflow?

2 A. No, sir.

3 Q. How do you know that?

4 A. Never, to my knowledge, was there an

5 overflow, Mr. Earl. And never was the stop log

6 structure opened, to my knowledge.

7 Q. Would you know?

8 A. Yes.

9 Q. Okay.

10 You have an expired permit on that

11 facility right now, you haven't been using it have --

12 A. The permit is up for renewal, sir. All

13 the paperwork is in.

14 Q. But your existing permit, you allowed that

15 to expire, didn't you?

16 A. No, sir, we did not, allow it to expire.

17 We put in the paperwork for renewal. It is expired due

18 to the inaction by DER and HRS.

19 Q. What is the phosphorus content in that

20 pond, do you know?

21 A. I don't know.

22 Q. Total phosphorus?

23 A. I haven't done -- I can't recall the data.

24 I'm sure some has been taken, but I'm not sure exactly

25 what the phosphorus content is.














385
1 Q. Would it be more than 50 parts per

2 billion?

3 A. I don't know, sir.

4 Q. Do you have any idea?

5 A. No, sir.

6 Q. Is that a lined pond?

7 A. Sir?

8 Q. Is that pond you call an evaporation

9 percolation pond lined?

10 A. No, sir.

11 Q. What is the ground water flow in that

12 area?

13 A. I have no idea, sir. I've not measured

14 it, and I'm not aware of any -- of having read any

15 document that discusses the ground water flow in that

16 area.

17 Q. You have no idea where your headquarters

18 is located? You don't know where the ground water

19 flows, which way?

20 A. I know which way.

21 Q. Which way?

22 A. Flows to the south, southeast.

23 Q. How far is that compartment that uses an

24 evaporation percolation plant located from the L-7

25 canal?














386
1 A. About 25 -- no, approximately about 20

2 miles.

3 Q. How about L-40?

4 A. Probably a half a mile.

5 Q. Okay.

6 A. Somewhere in that neighborhood, a quarter

7 to a half.

8 Q. Have you or anyone on behalf of

9 Loxahatchee done any ground water flow determination to

10 determine where, if pollutants left -- left that pond,

11 where they would go?

12 A. If there were any pollutants in it, we

13 have not done any studies, neither me nor my staff, on

14 ground water flow.

15 Q. So you don't know that that water, whether

16 or not that water goes into the canal, do you?

17 A. In which canal, sir?

18 Q. Into the L-40?

19 A. No, sir, I do not know that for a fact,

20 because no studies have been done.

21 Q. Okay.

22 Who would have an idea of the nutrient

23 levels in that holding pond?

24 A. There may be data at the Refuge and

25 history that has been collected as part of the permit,














387
1 and possibly DER would. There may have been some data

2 in the permit application. I don't know. I don't

3 recall.

4 Q. As someone -- you served on LOTAC, did you

5 not, sir?

6 A. No, sir.

7 Q. Okay.

8 You were on the STA Advisory Committee?

9 A. The STA design group.

10 Q. Design committee?

11 A. Right.

12 Q. You've been following, on behalf of the

13 Fish and Wildlife Service, the SWIM process, have you

14 not?

15 A. To an extent, yes. Not in very -- not in

16 general technical detail, but in policy level stuff.

17 Q. Policy was involved in the settlement of

18 the lawsuit with the State of Florida, were you not?

19 A. Yes, sir.

20 Q. On a policy basis?

21 A. Yes.

22 Q. And are you familiar with the levels of

23 phosphorus that are contained in that agreement?

24 A. Yes, sir.

25 Q. One of them being 50 parts per billion; is














388
1 that correct?

2 A. Interim standards for the Refuge.

3 Q. Okay.

4 And are you telling me, as you sit here

5 today, you don't know, relative to the effluent in your

6 holding pond, what the phosphorus levels of that would

7 be?

8 A. I'm telling --

9 MS. PONZOLI: Asked and answered.

10 THE WITNESS: I'm -- Mr. Earl, I'm telling

11 you I do not know, sir, without going and

12 looking at data.

13 BY MR. EARL:

14 Q. Well, in your judgment, you've given

15 opinions about nutrients causing change, would you

16 expect it to be higher than 50 parts per billion?

17 A. Would I expect what to be higher? The

18 effluent?

19 Q. The effluent, total phosphorus level and

20 effluent in your holding pond to be higher than 50

21 parts per billion.

22 A. I wouldn't have an opinion on that, sir,

23 until I looked at data.

24 Q. As we sit here, you just don't know,

25 correct?














389
1 MS. PONZOLI: Asked and answered, Mr.

2 Earl.

3 THE WITNESS: As I sit here, I just don't

4 know.

5 BY MR. EARL:

6 Q. Where is the motor pool located for

7 Loxahatchee?

8 A. The what?

9 Q. Motor pool maintenance area.

10 A. It's located north of Lee Road in

11 Compartment B, surrounded by Compartment B on one

12 side -- on two sides -- no, on three sides, and by a

13 levee on the other side that goes to the Cypress Swamp.

14 Q. Does the -- have any contamination

15 assessments of that area been -- been done to determine

16 whether there is hazardous substance or waste in the

17 area and where they go?

18 A. The most recent evaluation that I know of

19 was an evaluation that's being -- monitoring wells that

20 were in around some underground fuel tanks. I don't

21 know of any other contaminant assessments that have

22 been done, per se, for that site.

23 Q. Okay.

24 Were the underground fuel tanks leaking?

25 A. No, sir.














390
1 Q. Have they been removed?

2 A. They're in the process of being removed.

3 Since I haven't been to the refuge in ten to twenty

4 days, I do not know the status of that project at this

5 point.

6 Q. Okay.

7 Do you have any idea what the total

8 nutrient output in -- is from you're operating the

9 sewage treatment plant in Loxahatchee?

10 A. No, never computed that. I haven't.

11 Q. And you don't know what the concentration

12 is, correct?

13 A. No, sir.

14 Q. Does anybody in your staff know that?

15 A. The total concentration?

16 Q. Concentration of phosphorus in your

17 Refuge.

18 A. I -- I don't know whether -- what tests

19 are required for the -- by the permits, and I do not

20 know the results of any tests that have been conducted.

21 If they're available they are at the Refuge, and

22 probably Mr. Flock would know what tests were required

23 since that is one of his projects.

24 Q. What file would that be?

25 A. I beg your pardon, sir?














391
1 Q. What file would that be?

2 A. Under a sewage treatment plant.

3 Q. And if you haven't done it for a DER

4 permit or HRS permit, you wouldn't have done it; is

5 that correct?

6 A. For the effluent?

7 Q. Yes, sir.

8 A. There would have been no reason for me to

9 do levels in a compartment unless there was the

10 effluent in there, that's correct.

11 Q. I don't think that was my question. I

12 said if you haven't done it for the DER permit.

13 A. Haven't done what, sir?

14 Q. Haven't determined the concentration of

15 total phosphorus in your effluent.

16 A. (No response.)

17 Q. Let me rephrase it for you.

18 If it's not for a DER permit, would you

19 have done it, to your knowledge, any test of that

20 nature?

21 A. Analyze the effluent from the plant?

22 Q. To determine the concentration of total

23 phosphorus.

24 A. No, sir. I would have not done it if it

25 was not required by the permit.














392
1 Q. To your knowledge, that hasn't been done;

2 is that correct?

3 A. No, sir. I didn't say that.

4 MS. PONZOLI: Asked and answered.

5 BY MR. EARL:

6 Q. What did you say?

7 A. I said that if any tests were required by

8 the permit and they have been done, that the results of

9 those tests will be on file at our office and at DER.

10 Q. That I understood.

11 A. Okay. But you asked me again.

12 Q. Why didn't you obtain a permit for that

13 facility?

14 MS. PONZOLI: Object to the form.

15 BY MR. EARL:

16 Q. Okay.

17 Well, let's start it another way.

18 You understand that -- you received a

19 letter from Secretary Browner, did you not, saying they

20 received a complaint that you had an unpermitted

21 facility, is that --

22 A. My understanding was the Florida Sugar

23 Cane League filed a complaint that it was a

24 non-permitted sewage treatment plant.

25 Q. Okay.














393
1 And thereafter, DER determined that a

2 permit was necessary, did they not?

3 A. That was the determination.

4 Q. Okay.

5 Why did you never, prior to that time,

6 apply for a permit?

7 A. Based on the way that we do business in

8 the Fish and Wildlife Service, the engineer that was in

9 charge of designing that sewage treatment plant came to

10 West Palm Beach. We examined the alternatives for

11 installation of his sewage treatment plant to handle

12 the facilities at Loxahatchee. He and I both visited

13 DER and HRS and were told by both agencies, based on

14 the design criteria, technical criteria that the

15 engineer relayed to them, that there was no need for a

16 permit.

17 Q. What -- when was that, what year?

18 A. The year prior to the building of the

19 sewage treatment plant, whenever it was built, Mr.

20 Earl. I do not recall the dates. I don't keep the

21 dates that we build sewage treatment plants in my head.

22 Q. How was the effluent disposed of before

23 you built the plant?

24 A. Prior to that there was a sewage treatment

25 plant that had effluent that was disposed of into an














394
1 impoundment adjacent to the sewage treatment plant, an

2 old sewage treatment plant that had been installed

3 prior to permit requirements.

4 Q. And what happened to that effluent?

5 A. What happened to it when?

6 Q. You say there was -- what compartment was

7 that?

8 A. I'd have to look at the map again. I

9 can't remember the compartment numbers. I believe it's

10 B3, to the best of my knowledge, B3.

11 Q. Okay.

12 A. I can't remember what happened to that.

13 Let me look at here. I have it right here.

14 Yes, it would have been B3.

15 Q. Okay.

16 What is B3 used for now?

17 A. As a marsh impoundment.

18 Q. And was there any discharge of leakage to

19 from that?

20 A. To what?

21 Q. To any place.

22 A. No, sir, not that I know of.

23 MR. EARL: You want us to wait for you?

24 MS. MISIAK: No, go ahead. Thank you.

25 (Thereupon, a discussion was held off the














395
1 record.)

2 (Thereupon, the document was marked

3 Plaintiff's Exb. No. 7 for Identification.)

4 BY MR. EARL:

5 Q. Let me direct your attention to the third

6 page of this document.

7 It says study need, ecological

8 characterization of Loxahatchee National Wildlife

9 Refuge (Everglades), Florida, justification. Third

10 page down. Have you ever seen this before?

11 A. I don't recall, sir, but I think I -- I

12 think I have.

13 Q. What is it?

14 A. It looks like an outline of a study need

15 for Loxahatchee. I don't know who signed or who

16 generated it. I cannot recall.

17 Q. Those initials on the upper right hand

18 corner of the first page, you don't recognize --

19 A. I tried to read that, it's very unclear.

20 I have no idea whose initials those were.

21 Q. Okay.

22 A. They're not mine. Let me make that clear.

23 Q. Okay.

24 Item number two states, Fish and Wildlife

25 Service conducted a water level vegetation study from














396
1 the '71 to '66 and a recommended regulation schedule

2 resulted, but FWS biologists feel that the sloughs and

3 wet prairies are gradually converting to drier

4 communities. More baseline data is needed to determine

5 the regulation schedule to maintain an aquatic slough,

6 wet prairie, sawgrass, tree island everglades. Do you

7 concur that the sloughs and wet prairies are gradually

8 converting to drier communities?

9 A. In the general sense, yeah. That's the

10 reason for the proposed regulation schedule we have

11 before us.

12 Q. Item three, there are no total

13 comprehensive studies of the Everglades and water

14 management decisions are made every year that impact

15 this one of a kind ecosystem. Do you agree with that

16 statement?

17 A. I don't know. I don't know when this was

18 written. There's no date on it.

19 Q. Do you agree with it today?

20 A. I would say that we have more data

21 available now than we did a year ago.

22 Q. Are there comprehensive studies of

23 Everglades?

24 A. One comprehensive of the Everglades? No,

25 there's not -- when I say Everglades, I mean the entire














397
1 Everglades system. And I would say there's probably

2 not been a total comprehensive study of the Everglades

3 system.

4 Q. The SWIM Plan doesn't do that?

5 A. To an extent it would. I believe that

6 that's probably a study -- whether these -- whether

7 that's a study or proposal, sir, or a plan, I don't

8 think I would classify it as a study.

9 Q. On the second page of this document.

10 A. Second page of this document, which page?

11 Second page?

12 Q. Well, you're on the third page. Excuse

13 me. That's a -- go to the fourth page.

14 A. And what does that page say?

15 Q. It states objective, provide a description

16 of the resources and processes in the Loxahatchee

17 Refuge ecosystem and develop an understanding of the

18 functions and dynamic relationships of the system.

19 Have you ever seen this before?

20 A. This appears that it might be part of this

21 page right here on the four, five -- I don't know,

22 since these documents have no -- no identification for

23 them, or no attachment memo, or anything, I can't

24 recall, sir --

25 Q. Okay.














398
1 A. -- where this document came from and who

2 did it and what was it intended for.

3 Q. Item six at the bottom, determine

4 inundation tolerances of native wetland species.

5 A. Um-hum.

6 MS. PONZOLI: Mr. Earl --

7 MR. EARL: Yes?

8 MS. PONZOLI: I don't know that my

9 document looks like yours.

10 MR. EARL: Oh?

11 MS. PONZOLI: My document doesn't look

12 like the other documents.

13 THE WITNESS: This is it.

14 MS. PONZOLI: Do you have another one

15 there?

16 THE WITNESS: It's discombobulated late as

17 far as I can tell, pieces of several documents

18 stapled together.

19 MS. PONZOLI: There's -- mine are stapled

20 wrong.

21 MS. MISIAK: Yes.

22 MS. PONZOLI: What is the one you're

23 questioning on, Mr. Earl?

24 MR. EARL: It states objective. Then

25 study tasks, it has a list of six items.














399
1 MS. PONZOLI: Did I pass it?

2 MS. MISIAK: You don't have it.

3 MS. PONZOLI: Do you have another one?

4 MR. RICHARDS: That's all the copies we

5 have.

6 MS. PONZOLI: I'm looking on with Mr.

7 Neely.

8 MR. EARL: Okay.

9 (Thereupon, a discussion was held off the

10 record.)

11 BY MR. EARL:

12 Q. Item six, determine inundation tolerance

13 of native wetland species. As we sit here today, has

14 that been done in Loxahatchee?

15 A. I don't know how much of that was covered

16 in Work Order 32 without going back and searching that

17 particular item out, sir.

18 Q. You don't know?

19 A. Not without going back.

20 Q. Okay.

21 A. I'm trying to find in here if there's a

22 reference to it.

23 Q. Okay.

24 Other than Work Order 32, are you aware of

25 any determination of inundation -- of inundation














400
1 tolerances?

2 A. Not that I'm aware of, sir. There may --

3 might be, but I -- I'm not aware of it.

4 Q. Okay.

5 (Thereupon, the document was marked

6 Plaintiff's Exb. No. 8 for Identification.)

7 BY MR. EARL:

8 Q. I hand you No. 8, sir. Can you identify

9 that for us?

10 A. Based on the cover sheet, it appears to be

11 either a complete copy or maybe a partial copy of the

12 annual narrative report for 1991 for Loxahatchee

13 National Wildlife Refuge.

14 Q. Take a look at it. Do you have any reason

15 to believe it's anything else?

16 A. No, sir.

17 Q. Is it a copy of the 1991 annual report for

18 Loxahatchee?

19 A. This is a copy -- this appears to be --

20 this is a copy of the annual narrative report calendar

21 year 1991 for the Loxahatchee National Wildlife Refuge.

22 Q. And what is the purpose of those reports?

23 A. They're generalized reports that are kept

24 in the files and submitted to both Washington and

25 Atlanta, the regional office and the central office.














401
1 Q. For what purpose?

2 A. Just for generalized documentation.

3 Q. To report to them what's happened over the

4 last year?

5 A. No, sir. Just as generalized

6 documentation that -- that's one thing it could be used

7 for.

8 Q. Okay.

9 I see on the page two there you signed

10 this as refuge manager; is that correct?

11 A. That's correct.

12 Q. Is that your signature I signed?

13 A. That's my signature.

14 Q. Okay.

15 And then it goes up the line to Refuge

16 supervisor?

17 A. That's correct.

18 Q. Who is that, sir?

19 A. (No response.)

20 Q. What's his name? I can't read --

21 A. That's his name that's on there, that's

22 Jim Matthews.

23 Q. Where is he based?

24 A. Today?

25 Q. As of 3-23-93?














402
1 A. In Atlanta, Georgia.

2 Q. Okay.

3 Is that correct? Is that '90 -- he wrote

4 3-23-93.

5 A. I wouldn't think it was correct because

6 the person that signed after him wrote 4-3-92.

7 Q. Okay.

8 A. And this could be -- no, it's three --

9 Q. Okay.

10 Where was he based on 3-23-92?

11 A. In Atlanta, Georgia.

12 Q. In Atlanta?

13 And as refuge supervisor, Mr. Matthews is

14 the individual you report to?

15 A. At that particular point in time, it was.

16 Q. Okay.

17 Who is it now?

18 A. Today it's Travis McDaniels.

19 Q. And what's the purpose of his review of

20 this, if you know, why does he have to review and sign

21 it?

22 A. As -- just as a general acceptance that

23 it's gone through and has his review, just a notation

24 of which review.

25 Q. Okay.














403
1 And then it goes up to who; Harold?

2 A. Apparently in this case it went to Harold

3 Benson, but there's a person between Jim Matthews and

4 Harold Benson. I can't tell you who the person is.

5 The next person to sign it was apparently Harold

6 Benson.

7 Q. Okay.

8 Is Harold Benson still there?

9 A. Yes.

10 Q. Okay.

11 What is his title or position?

12 A. Assistant regional director for refuges

13 and wildlife.

14 Q. Okay.

15 When you say there's someone between him

16 and --

17 A. The deputy assistant regional director for

18 refuges and wildlife.

19 Q. Who is that?

20 A. His name is Phillip Morgan. He's Mr.

21 Benson's deputy.

22 Q. Okay.

23 I ask you to go to Page II. You read this

24 before it went up the line?

25 A. Yes, sir.














404
1 Q. Okay.

2 You believed at that time it -- at that

3 time to be correct and accurate?

4 A. Yes, sir.

5 Q. Okay.

6 A. In a general sense, this is a general

7 introduction statement.

8 Q. Okay.

9 And which specific sections of this report

10 did you prepare yourself?

11 A. Section K.

12 Q. And I'd ask you to go to Page 59, 59 of

13 the report.

14 A. I'm there.

15 Q. Under credits, for example, it says Mark

16 Maffei, Sections B, D-5, Part F-1, 2, Part G-2, Part

17 J-3, Part I-6, editing. Does that mean those are the

18 sections Dr. Maffei was responsible for preparing?

19 A. It means that -- where it says D-5 part

20 means that he did part of it. Section B means that he

21 did all of it.

22 Q. Okay.

23 Now, when I go to Page 60 on this copy,

24 which is section you prepared, feedback, I have a

25 blank.














405
1 A. Well, if you'll turn one more page you'll

2 find the page it's stuck on.

3 Q. Okay. Okay.

4 Why do we have a blank page first?

5 A. I have no idea. Apparently when the

6 document was first assembled in a draft form or in a

7 non-final form they left that page blank, and I

8 probably wrote the feedback after most of the document

9 was prepared, and when it was inserted, someone forgot

10 take out an extra page, or it may have been left in the

11 computer.

12 These things are done in pieces. Each

13 person that has credits prepares their own piece, then

14 they're assembled.

15 Q. Last paragraph of your feedback you say

16 however, the significance of the lawsuit and the

17 subsequent settlement agreement is that a precedent has

18 been set for all National Wildlife Refuges that affords

19 protection from external threats. This fact has not

20 been recognized by the Service or is being ignored.

21 Why did you say it has not been recognized?

22 A. Because I had not received any

23 acknowledgement that this did in my opinion -- or did

24 what, in my opinion, I stated there.

25 Q. Well, what did you expect in the form of














406
1 acknowledgement?

2 A. Nothing.

3 Q. Page II, sir, under introduction.

4 A. Okay, sir.

5 Q. Second sentence, the Refuge is part of a

6 massive flood control project constructed by the U.S.

7 Army Corps of Engineers. Do you agree with that?

8 A. Okay.

9 Q. Is that an accurate statement?

10 A. Yes, sir, I think that it is.

11 Q. Let me ask you to go to page four of this

12 document.

13 A. Okay, sir.

14 Q. Okay.

15 Under five, research and investigations,

16 the annual report states, exotic pest plants continue

17 to be major concern for the Refuge in 1991. True?

18 A. Yes, sir.

19 Q. Okay.

20 The Australian tree introduced to South

21 Florida around 1900 has rapidly invaded South Florida

22 wetlands. Do you agree with that?

23 A. Yes, sir.

24 Q. This fast growing multi-seed producing

25 tree had displaced and altered native plant














407
1 communities. Is it that true?

2 A. Yes, sir.

3 Q. Which plant communities has it displaced

4 and altered?

5 A. In some cases it's displaced and altered

6 native tree islands.

7 Q. You say communities.

8 A. In some places it has displaced sawgrass.

9 Q. Okay.

10 And any other communities?

11 A. None that I can think of.

12 Q. Okay.

13 A. It may have displaced some wet prairie

14 communities.

15 Q. Do you have any idea of the acreage of

16 sawgrass displaced by Melaleuca?

17 A. Sir, I've answered that a number of times,

18 and the answer is no.

19 Q. Where do I go to find that out in the

20 Loxahatchee Refuge?

21 A. What do you want to find out?

22 Q. Acreage of sawgrass?

23 A. Number?

24 Q. Number of sawgrass displaced by Melaleuca.

25 A. I doubt if you can find that without a














408
1 research project.

2 Q. And produced habitat of limited value to

3 wildlife. Do you agree that Melaleuca habitat is of

4 limited value to wildlife?

5 A. Yes.

6 Q. Do you have any opinion as to whether it's

7 less or more valuable than cattail habitat?

8 A. No, sir.

9 Q. Your next sentence states herbicides such

10 as Garlon 3A and Arsenal are currently the most

11 effective in controlling Melaleuca. Does the Refuge

12 currently have an aerial application program?

13 A. No.

14 Q. Does the Water Management District in

15 Loxahatchee?

16 A. For anything in Loxahatchee? I think the

17 Water Management District does some aerial applications

18 of Diquat on water hyacinth to keep the canals clear.

19 I believe it's Diquat that they're using. Maybe some

20 Round Up involved.

21 Q. You say Garlon 3A is readily applied when

22 conditions allow foliar application. What is foliar

23 application, do you know?

24 A. Yes, sir. It's application to the plant

25 leaves.














409
1 Q. Okay.

2 By aircraft or airboat?

3 A. Yes, sir.

4 Q. Unfortunately, under current regulations,

5 this particular herbicide cannot be applied over

6 standing water. Why is that?

7 A. That's the regulation, the label, the

8 label restrictions on the chemical.

9 Q. Means it has an adverse impact?

10 A. It's -- no, sir. It means that it's the

11 label restrictions on that permit, on that chemical.

12 Q. Not to use it over standing water,

13 correct?

14 A. Yes.

15 Q. Okay.

16 Who applied for the exception to EPA?

17 A. (No response.)

18 Q. Next sentence, section exception?

19 A. Yes, sir. Yes, sir. I see the next

20 sentence. I believe that the chemical company did.

21 Q. Dow/Elanco?

22 A. Yes, sir.

23 Q. Okay.

24 Your next sentence states, an experimental

25 use permit was issued to Dow/Elanco allowing foliar














410
1 application of Garlon 3A on up to 200 acres of

2 Melaleuca trees in standing water. Where are these

3 trees located in the Refuge, the 200 acres you're

4 talking about there?

5 A. Specifically?

6 Q. Yes, sir.

7 A. Well, I can't tell you -- I don't have --

8 I don't have any reference points to tell you exactly

9 where something is in the Refuge. They're inside in

10 Water Conservation Area Number 1.

11 Q. Okay.

12 Right in the center? Give me quadrants.

13 A. I can't give you a quadrant because I'm

14 not sure where all the application was made. I'm not

15 sure that 200 acres was treated.

16 Q. Where, do you know where, what area was

17 treated, the area that was treated under this

18 experiment?

19 A. On the eastern side of the Refuge.

20 Q. Okay.

21 Where about?

22 A. Eastern half. You asked for quadrants.

23 Q. Okay.

24 Eastern one-half?

25 A. Yes, sir.














411
1 Q. What was the largest such area to which it

2 was applied?

3 A. I don't remember the exact size of the

4 Melaleuca stands that were treated that would have made

5 up the conglomerate 100 acres. They vary in size. A

6 helicopter could treat anything from -- from a small,

7 small head of Melaleuca to a large head of Melaleuca,

8 and they vary in size. I don't know.

9 Q. Did you require any preapplication phase

10 studies to be done and provide to you by Dow/Elanco

11 before you allowed them to apply it?

12 A. No, sir.

13 Q. Your next sentence states Dow/Elanco

14 assigned 100 of those acres to the Refuge. Does that

15 mean that just a hundred of the 200 acres applied in

16 for the permit was in the Refuge?

17 A. There's what that up to 100 acres could

18 be.

19 Q. Who's in charge of this program at the

20 Refuge; Dr. Maffei?

21 A. Yes.

22 Q. He would know more about this?

23 A. Yes.

24 Q. He would know where it's applied?

25 A. Yes, sir.














412
1 Q. If there is a map or photograph of that,

2 what would I ask for?

3 A. I don't think there's a map, and I don't

4 recall. I don't think there's an aerial photograph.

5 There may be some compiled data on the computer that

6 the -- that I know there are reports of application.

7 There's tracking of the application of all chemicals.

8 Q. Your reports goes on to state that ability

9 to treat Melaleuca trees in this manner greatly reduces

10 the cost of treating this non-native tree.

11 So is this a cost saving effort here?

12 A. No, sir. This was an experimental

13 application in order to try to determine the best

14 methods of application that would get the results that

15 we needed.

16 Q. Okay.

17 Is there a history of non-target damage

18 when you have an aerial spray application in

19 Loxahatchee?

20 A. A history of it?

21 Q. Yes. Is there any history of it that

22 you're aware of?

23 A. I don't know what question you're asking,

24 sir. A written history?

25 Q. No. Any kind of -- are you aware of any














413
1 non-target damage caused by aerial application of

2 pesticides in the Loxahatchee?

3 A. Of any pesticide?

4 Q. Sure.

5 A. Sure. The tomato spraying that I

6 mentioned to you yesterday.

7 Q. Okay.

8 Any others?

9 A. There could very possibly be when -- when

10 this stuff is applied where there's a stand of

11 Melaleuca, there may be a single native plant in there

12 that could be damaged.

13 Q. Okay.

14 Let's go to the -- to the next paragraph

15 of your report. In October of 1991, five acres of

16 Melaleuca were treated under the Melaleuca experimental

17 use permit using Garlon 3A. Now, I go down two

18 sentences there, it states very little non-target

19 damage was observed. Sawgrass within the Melaleuca

20 stands died back, but was recovering by year's end.

21 How much sawgrass was killed by that?

22 A. I have no idea, sir.

23 Q. Okay.

24 MR. GREEN: Excuse me. Just for the

25 record, did you mean to say October 1991?














414
1 MR. EARL: No. I meant to say August.

2 Thank you, Counsel.

3 MR. GREEN: Okay. I was wondering if it

4 was me. Excuse me.

5 BY MR. EARL:

6 Q. Do you have an opinion as to whether the

7 application of pesticides in the Loxahatchee have

8 resulted in the death of non-targeted vegetation?

9 THE WITNESS: Can I hear that question

10 back again, please?

11 (Thereupon, a portion of the record was

12 read back by the court reporter.)

13 THE WITNESS: I would have, in my opinion,

14 I would say that some non-target vegetation was

15 killed when this was sprayed in a Melaleuca

16 head. They're not pure and they're not

17 isolated.

18 BY MR. EARL:

19 Q. But you have no idea of the magnitude of

20 the sawgrass or the species killed?

21 A. Yes, sir. I think my idea, my opinion of

22 magnitude is that it was a very small amount.

23 Q. Okay.

24 How about the District's aerial

25 applications to kill what did you say, water hyacinth,














415
1 and water lily?

2 A. Water lettuce.

3 Q. How often does that occur a year?

4 A. It could occur several times a year,

5 depending upon the water conditions, the water levels,

6 the growth rate or the hyacinth or water lettuce that

7 varies from year to year.

8 Q. What would be the aerial extent of the

9 area sprayed?

10 A. Generally the canal area.

11 Q. Generally what would that be, how many

12 acres, surface area?

13 A. I don't know, sir. Probably a strip a

14 hundred feet wide and the canal is 57 miles long.

15 Sometimes it's stopped, it's blocked by hyacinth in a

16 certain location. It varies from time to time. It's

17 a -- many, many variables on that.

18 Q. And they are frequently using Diquat, you

19 said?

20 A. I think they're using Diquat. I don't

21 know exactly today what the District is using, but I

22 can assure you that is under permit for the Fish and

23 Wildlife Service today.

24 Q. Would Diquat, if applied to sawgrass, kill

25 sawgrass, do you know?














416
1 A. I don't know.

2 Q. Okay.

3 If it was applied to native vegetation,

4 non-cattail native vegetation along the 57 miles of

5 canals, would it kill any --

6 A. None.

7 Q. -- of that native vegetation?

8 A. Non-native?

9 Q. Did I say non-native?

10 A. Yes.

11 Q. I'm sorry. Correct that to native,

12 non-cattail native vegetation.

13 A. Jesus, cattail non-native vegetation,

14 could you be specific?

15 Q. I'll start over again.

16 A. All right.

17 Q. Okay.

18 Do you know whether Diquat applied to

19 non-cattail native vegetation along the 57 miles of

20 canals --

21 A. Are you implying that cattail is

22 non-native --

23 Q. Let me finish my question.

24 A. Okay.

25 Q. -- along the 57 miles of canals, would














417
1 kill some or all of that vegetation?

2 MS. PONZOLI: May I hear that again? I

3 want to hear it again, please.

4 (Thereupon, a portion of the record was

5 read back by the court reporter.)

6 MS. PONZOLI: Thank you.

7 THE WITNESS: In my opinion, my opinion is

8 that it may kill some of it.

9 BY MR. EARL:

10 Q. Have you ever seen vegetation killed as a

11 result of the aerial or other application of

12 vegetation? Let me start over again. It's late in the

13 day.

14 MS. PONZOLI: It's been a long day.

15 BY MR. EARL:

16 Q. Have you ever seen vegetation along the 57

17 miles of canal in Loxahatchee damaged by the aerial

18 application of Diquat?

19 A. Yes.

20 Q. Okay.

21 Have you ever seen non-targeted vegetation

22 damaged by the aerial application of Diquat?

23 A. Yes.

24 Q. How recently, where have you seen that,

25 how extensive has it been?














418
1 A. In the immediate area where the spray was

2 applied there might be a mist if it's applied from an

3 airboat, or there may be some -- some minor drift if

4 applied by helicopter, but it's all generally within a

5 very short distance of the canal where the target

6 species was.

7 Q. Okay.

8 My question to you was, have you seen

9 vegetation damage from that?

10 A. My answer was --

11 Q. Okay.

12 A. -- yes, and all other things behind it.

13 Q. Okay. Okay.

14 How far back from the canal have you seen

15 such vegetation, vegetative damage?

16 A. In what portion, a matter what time?

17 Q. Well, what's the farthest you've ever seen

18 it back from the canal into the interior?

19 A. To the best of my recollection, probably

20 less than a hundred feet.

21 Q. You've never seen it further than a

22 hundred feet?

23 A. To the best of my recollection --

24 Q. Okay.

25 A. -- less than a hundred feet.














419
1 Q. Okay.

2 How many times have you personally

3 observed that kind of vegetative damage along the

4 canals?

5 A. Numerous times that I did not keep track

6 of during my 12 year tenure.

7 Q. Okay.

8 And have you, in fact, had to have

9 discussions with the Water Management District

10 regarding their application method?

11 A. We have had discussion with Water

12 Management District on chemical applications for

13 various reasons in my tenure of 12 years.

14 Q. Okay.

15 A. In relationship to their permit to

16 apply -- apply chemicals on the Refuge.

17 Q. Okay.

18 What was the most serious incident you're

19 aware of, of damage to the Loxahatchee non-targeted

20 vegetation as a result of aerial application of

21 pesticides?

22 A. Of damage or of pesticides being applied

23 to vegetation? Damage is qualitative.

24 Q. Well, injury or death or --

25 A. To the vegetation?














420
1 Q. Yes, sir.

2 A. I don't recall the specific date nor time.

3 I do know there was some -- let me think back. Some

4 sprayed drift that was probably up to a hundred feet in

5 a good length of portion down in the area of the

6 concession at one point. I don't remember specifically

7 any other thing.

8 Q. You say good length, that's in the

9 Hillsboro Canal?

10 A. Probably it was in the L-40, and it may

11 have gone along the flat area of the Hillsboro Canal,

12 but not anywhere the full length of Hillsboro.

13 Q. You say good length. Are we talking about

14 five miles, ten miles?

15 A. Probably two to three to four miles from

16 the concession.

17 Q. How long a strip? What I'm trying to get,

18 how long a strip was the -- was the --

19 A. Two or three or four miles.

20 Q. For two or three miles and about a hundred

21 feet?

22 A. Yes.

23 Q. When did that happen? I know you still

24 don't exactly --

25 A. I don't know. I have no earthly idea,














421
1 sir.

2 Q. Two years ago, sir?

3 A. No. It was longer than that. It would

4 have been longer than two years ago.

5 Q. Before the big drought, '80 -- '89 --

6 A. Yes, sir. I'd say it was before the

7 drought.

8 Q. Okay.

9 In Work Order 32, how, if you know, how

10 did they treat the vegetative -- pesticide application

11 on vegetation in the canals?

12 A. I don't know, sir.

13 Q. Okay.

14 Dr. Maffei -- would Dr. Maffei be more

15 knowledgeable?

16 A. He may know. I do not know if he knows

17 that specific question or not.

18 Q. This is the concession area. What other

19 incidents do you remember specifically?

20 A. As to?

21 Q. As to damage from the aerial application

22 of pesticides.

23 A. I observed minor damage along the edge of

24 the canal, if you can consider that damage. I've

25 observed minor effects of chemical applications along














422
1 the canals.

2 Q. What effect would you be talking about?

3 A. Dead and dying plants.

4 Q. On very frequent basis have you made those

5 observations?

6 A. No, sir, not a very frequent basis because

7 they do not apply chemicals on frequent basis, to my

8 opinion.

9 Q. Every time they do apply them, do you see

10 such damage?

11 A. I don't know, sir. I don't observe every

12 time they apply them.

13 Q. Every time you observe that they have

14 applied them, have you seen such damage?

15 A. I've seen some damage, some. I've seen

16 some impact to non-target species along the edge of

17 canals as they apply the chemicals for the water

18 hyacinth.

19 Q. Every time you've seen them do it?

20 A. Generally.

21 Q. Do you have any -- does Loxahatchee have a

22 method for tracking this, the impact of those

23 pesticides or the incident of pesticide damage?

24 A. For tracking the damage, for tracking the

25 damage is, you're referring to it?














423
1 Q. Yes. Yes.

2 A. No, sir, we do not. It's inconsequential.

3 Q. How would you determine it's

4 inconsequential?

5 A. In my opinion it's inconsequential.

6 Q. Even the hundred foot wide, several mile

7 long strip?

8 A. Yes, sir, because generally that's an area

9 that's been impacted by water quality.

10 Q. So in your opinion, the pesticide damage

11 is not a factor in the replacement of native vegetation

12 along the canal fringe; is that correct?

13 A. Is in what?

14 Q. Replacement of native vegetation in the --

15 along the canal fringes.

16 A. The replacement. I don't understand your

17 question. Maybe if you -- she reads it back I'll

18 understand.

19 Q. In your opinion, have pesticides played

20 any role whatsoever in the growth or expansion of

21 cattails along the canal fringes in Loxahatchee?

22 A. No, sir.

23 Q. What studies or analysis have you done to

24 determine that?

25 A. None, sir.














424
1 Q. What records do you keep of the damage

2 done by pesticides?

3 A. None.

4 Q. Okay.

5 Have -- do you file -- your employees or

6 yourself file incident reports or complaints in writing

7 to the Water Management District which they've been

8 careless?

9 A. I don't recall having filed any. I just

10 don't recall having filed any, sir.

11 Q. Do you recall writing letters, don't you,

12 complaining about pesticide application?

13 A. I don't remember whether I wrote a letter,

14 or whether it was verbal.

15 Q. Okay.

16 Where would I find these pesticide files,

17 for example, a letter or a memo dealing with pesticide

18 damage, where?

19 A. Files? Probably in the pesticide

20 application file or permit application file.

21 Q. What permit application file?

22 A. Pesticide permit application file.

23 Q. Who maintains those files?

24 A. Dr. Maffei. They're part of the

25 biological station.














425
1 Q. And who issues the permit; Fish and

2 Wildlife Service?

3 A. Yes.

4 Q. When did they start issuing those permits?

5 A. I don't know for sure when those permits

6 were -- started issuing. I think they were issued when

7 I got here. It may have been before that. I'd have to

8 look at the file and see. I -- I just can't recall.

9 Q. Are those issued annually?

10 A. Yes, sir.

11 Q. Do they specify the quantity and the

12 areas?

13 A. Yes, sir.

14 (Thereupon, a discussion was held off the

15 record.)

16 BY MR. EARL:

17 Q. Would you go to Page 6?

18 A. Six of the annual narrative report?

19 Q. Yes, sir.

20 A. All right. Okay.

21 Q. An ecosystem stress assessment of the

22 Arthur R. Marshall National Loxahatchee National

23 Wildlife Refuge.

24 A. Yes, sir.

25 Q. Okay.














426
1 Have you received a final report on

2 ecosystem stress assessment?

3 A. I'm not sure, sir. I -- in response to

4 your question, Mr. Earl, I do not know if we received

5 that yet or not, or if it was incorporated into the

6 final report of Work Order 32. I do not think that the

7 final report has been submitted.

8 Q. Would you go to Page 18 of your '91 annual

9 report.

10 A. Okay, sir.

11 Q. Second paragraph -- I'm sorry. Third

12 paragraph. Four lines down. The new schedule will

13 allow water levels to rise as high as 17.5 feet msl

14 during some months of the year. This should have the

15 effect of bringing some 20,000 acres of marsh in the

16 northern water of Refuge back into productive marsh

17 condition. Is that an accurate statement?

18 A. To the best of my knowledge, it is

19 accurate.

20 Q. Okay, sir.

21 You said yesterday you had had some

22 trouble. You couldn't determine the area that was

23 impacted in the northern marshes. Would this be the --

24 would that be the area, that 20,000 acre area is

25 referring to?














427
1 A. I don't remember what we were referring to

2 as impacted by. Were we talking about hydroperiod?

3 Q. I think that we were talking about

4 overdrainage.

5 A. Or hydroperiod.

6 Q. In the northern portion, yes, sir.

7 A. Okay.

8 So Dr. Maffei has estimated 20,000 acres

9 of marsh there.

10 Q. Do you have any reason to doubt that?

11 A. No, sir.

12 Q. That the best estimate you've seen?

13 A. It's as good as any -- any I've seen. It

14 could be 25 or it could be 15.

15 Q. You -- normally you rely on Dr. Maffei to

16 make such determination?

17 A. Yes, sir. He's my -- he's my senior

18 biologist. That is his area of expertise.

19 Q. So unless someone presented something

20 better, would you agree with 20,000?

21 A. If I didn't have anything better, I would

22 use 20,000 acres.

23 Q. Do you have anything better?

24 A. No, sir.

25 Q. Would you go, sir, to Page 25?














428
1 A. Okay, sir.

2 Q. Bottom paragraph, there were 1,338 --

3 MR. EARL: You with us, Counsel?

4 MS. PONZOLI: Pardon?

5 MR. EARL: You got it? Are you there?

6 MS. PONZOLI: Yeah. I'm just...

7 BY MR. EARL:

8 Q. There were 1,338 snail kite

9 observations --

10 A. Where?

11 Q. I'm on the last paragraph, sir, Page 25.

12 A. I wasn't there.

13 Q. Excuse me.

14 A. Okay.

15 Q. There were 1,230 snail kite observations

16 reported to the snail kite sighting program in 1991,

17 A. Yes, sir.

18 Q. Is this a substantial increase from 1990?

19 A. Yes.

20 Q. And I go to the next page under table five

21 and I see total sightings in 1990 of 775 and total in

22 the 1991 of 1338, correct?

23 A. Yes, sir.

24 Q. Do you view that in terms of good news in

25 terms of snail kite population?














429
1 A. This shows a definite increase.

2 Q. Do you view that in good terms. Is that

3 good? You want that?

4 A. That's what the endangered species

5 recovery calls for is increased population.

6 Q. Okay.

7 Page 51, sir.

8 A. Okay, sir.

9 Q. First paragraph there, second line down.

10 Known simply as the Project by many in South Florida

11 the CSFFCP has succeeded in taming the waters of the

12 Everglades, while providing drainage of and flood

13 control for over one million acres of mostly

14 agricultural land. You do agree with that, don't you?

15 A. As a broad general statement, yes.

16 Q. Next paragraph, a major benefit of the

17 project was the creation of the Everglades Agricultural

18 Area.

19 Why do you have benefit there in quotes?

20 What does that mean?

21 A. That's the way it was termed in the

22 project, in the description of the project. This is a

23 quote from the project description.

24 Q. The house document 643?

25 A. Yes. House document 643.














430
1 A. Yes.

2 Q. And in fact, the EAA was one of the

3 justifications for constructing the project, wasn't it,

4 as you understand?

5 A. I don't know whether this was a

6 justification of. The project was constructed under

7 the Flood Control Act.

8 Q. The EAA was a benefit of that, wasn't

9 that?

10 A. I think the way that the project was --

11 stated that this was -- it was considered by the people

12 that did it to be a benefit.

13 Q. Starting on page 55, I see a listing of

14 events. What is this portion of the annual report

15 about?

16 A. This is under the section called other

17 items or items of interest. and these are things that

18 various staff participated in, or various events that

19 occurred, or visits that occurred. It's just a

20 conglomerate accounting of some things that were done

21 on the Refuge during the year or by Refuge staff.

22 (Thereupon, the document was marked

23 Plaintiff's Exb. No. 9 for Identification.)

24 (Thereupon, a discussion was held off the

25 record.)














431
1 BY MR. EARL:

2 Q. I hand you, sir, the excerpts from the --

3 what purport to be excerpts from the 1983 annual

4 narrative report, and ask you to look at Page 42, the

5 last paragraph of that, sir. The herbicide Rodeo --

6 A. Yes, sir.

7 Q. -- was used for the first time on the

8 Refuge. The SFWMD sprayed Rodeo aerially to control

9 paragrass in the L-40 canal from headquarters to the

10 Acme pump stations in October. How far is it along

11 that canal from the headquarters down to the Acme

12 pumps, approximately?

13 A. Approximately ten miles. I'd have to...

14 Maybe, maybe not quite that far. I'd say six to eight.

15 Somewhere in that neighborhood. I believe it was maybe

16 a mile or a half difference between the two pump

17 stations.

18 Q. Although Rodeo is not the most effective

19 chemical for willow control, it is one of few approved

20 for use over water. Is it still approved for use over

21 water?

22 A. I don't know. I'd have to look at labels.

23 The EPA tends to change those regulations from time to

24 time.

25 Q. And did you use Rodeo thereafter in the














432
1 water once -- at Loxahatchee?

2 A. As South Florida Water Management District

3 used it.

4 Q. Did you permit, allow them to use it?

5 A. I don't know whether we're still using

6 Rodeo or not. If I'm not mistaken, Rodeo is very

7 similar to Round Up.

8 Q. Are you still using Round Up in the open

9 waters?

10 A. I know that -- I see this. I don't recall

11 whether we're using Rodeo or Round Up or both. I'd

12 have to check the records to see.

13 Q. Are you using either now in the canals?

14 A. In the L-40 canals?

15 Q. Or L-7.

16 A. I don't know. I would have to look at the

17 records to see what chemicals are approved for the

18 District's and for our own use at this particular time

19 for this year. We just entered into a new year.

20 Q. Okay.

21 What would we ask for if we want to looked

22 at those the next time we ask for pesticide files?

23 A. Pesticide application permits.

24 Q. Okay.

25 What other pesticide files would there be?














433
1 A. There could be any. There could be files

2 that deal with that, would still be labeled pesticides.

3 The way our filing system is set up, there could be

4 various subjects under there, such as applications,

5 evaluations, if it was required, or there could even be

6 some of the purchase order copies in there showing what

7 the cost of various items were.

8 Q. Okay.

9 You say there's an evaluation file. What

10 evaluation file?

11 A. I said there may be an evaluation of a

12 particular application of a permit.

13 Q. When would you do evaluations?

14 A. Whenever we felt the need to.

15 Q. And when has that been done in the past,

16 as you recall?

17 A. We did some evaluations when we first

18 started the treatment of Melaleuca.

19 Q. When else have you done them?

20 A. We've done -- there's probably some --

21 there's probably some evaluation of using a different

22 type of applicator on cattail in the impoundments. In

23 the C impoundment there's various -- they have used

24 various application methods. I don't know whether they

25 did. I don't know whether they -- the biologist wrote














434
1 it up or wrote up a formal evaluation or not.

2 (Thereupon, a discussion was held off the

3 record.)

4 MR. EARL: Back go back on the record.

5 We asked yesterday, Mr. Neely, if you

6 could provide us with the Jones contract. Were

7 you able to obtain that?

8 MS. PONZOLI: Mr. Earl, I have the Jones

9 contract, but quite honestly, in the rush of

10 what you and the other counsel and I have been

11 engaged in today, I have not had an opportunity

12 to review that contract. Once I have reviewed

13 it, I'll either provide it to you or advise you

14 that I'm not providing it. At this time I have

15 no reason. I have -- I haven't reviewed it. I

16 can't tell you.

17 MR. EARL: Can I ask for some time frame

18 within which you'll let us know; five days?

19 MS. PONZOLI: No, I'm not going to commit

20 to five days. I think I'm out of touch for all

21 of next week. I'm out of town for a good part

22 of the remainder of this week.

23 MR. EARL: Okay.

24 What would be convenient for you?

25 MS. PONZOLI: If enough time goes by that














435
1 you think it's too much, why don't you drop me a

2 letter? I'll respond. I think that's the most

3 reasonable way to handle it. It would also be

4 helpful if you would indicate which of your

5 requests for production you believe it falls

6 under, or is this just courtesy production that

7 you're asking me for?

8 MR. EARL: Well, we asked for it. You've

9 produced it. We'd like to have it. If you

10 determine it -- don't want to tell us, I'll send

11 you a letter reminding you.

12 Do we have a date certain you'd like to

13 resume this deposition? Do you have a date you

14 prefer?

15 MS. PONZOLI: I believe that we have

16 indicated that you think you can finish in a

17 day.

18 And are we going to meet Mr. Green on

19 Friday morning to discuss the problems with the

20 schedule in your office prior to the hearing or

21 not?

22 MR. GREEN: That's the first I've heard of

23 it, but we could probably do that. I'll check

24 and see if --

25 MR. EARL: I think that could -- would be














436
1 difficult unless -- we have some scheduling

2 constrictions. We'll have somebody at the

3 meeting, but I don't know that we're going to

4 have our scheduling people.

5 MS. PONZOLI: Well, there's more than Mr.

6 Neely that needs to be resolved. There's a

7 pretty fair number of issues.

8 MR. EARL: Can I suggest that we pick a

9 date then to do that, have a -- not try to tie

10 it into that hearing, but let's get a date.

11 MS. PONZOLI: For Mr. Neely?

12 MR. EARL: No, for --

13 MS. PONZOLI: For rescheduling?

14 MR. EARL: Yeah.

15 MS. PONZOLI: Well, my understanding has

16 been that that is when we were going to do it.

17 You know, if I'm wrong, I'm wrong.

18 MR. EARL: I'm suggesting to you that we

19 may not have the proper counsel there to do the

20 scheduling. We have another -- some scheduling

21 conflicts that day we need to attend to.

22 MS. PONZOLI: So you want to pick a

23 different day for all counsel to get together to

24 do the scheduling?

25 MR. EARL: I'm suggesting that, yes,














437
1 finding a mutually convenient day.

2 MS. PONZOLI: You want to do that right

3 now.

4 MR. EARL: Just talk tomorrow. Will you

5 be available?

6 MS. PONZOLI: Yeah, I'll be available

7 tomorrow.

8 MR. EARL: Okay.

9 Then, Joe, would you remind me? I don't

10 have my calendar.

11 MR. RICHARDS: I'll be in too.

12 MR. EARL: Okay.

13 Let's do that tomorrow.

14 MS. PONZOLI: All right.

15 We're off the record.

16

17 (Witness excused.)

18

19 (Thereupon, at 5:00 p.m. the deposition

20 was concluded.)

21

22

23

24

25














438
1 C E R T I F I C A T E

2 - - -

3

4 THE STATE OF FLORIDA, )

5 COUNTY OF PALM BEACH. )

6

7

8 I hereby certify that I have read the

9 foregoing deposition by me given, and that the

10 statements contained therein are true and correct to

11 the best of my knowledge and belief.

12

13

14 Dated this ______ day of _____________, 1993.

15

16

17 _______________________________________

18 Burkett S. Neely

19

20

21

22

23

24

25














439
1 C E R T I F I C A T E

2
The State Of Florida, )
3 County Of Palm Beach. )

4 I, ROBIN L. MERKER, Registered
Professional Reporter and Notary Public, State of
5 Florida at large, do hereby certify that BURKETT S.
NEELY was by me first duly sworn to testify the whole
6 truth; that I was authorized to and did report said
deposition in stenotype; and that the foregoing pages,
7 numbered from 1 to 438, inclusive, are a true and
correct transcription of my shorthand notes of said
8 deposition.

9 I further certify that the said deposition
was taken at the time and place hereinabove set forth
10 and that the taking of said deposition was commenced
and completed as hereinabove set out.
11
I further certify that I am not attorney
12 or counsel of any of the parties, nor am I a relative
or employee of any attorney or counsel or party
13 connected with the action, nor am I financially
interested in the action.
14
The foregoing certification of this
15 transcript does not apply to any reproduction of the
same by any means unless under the direct control
16 and/or direction of the certifying reporter.

17 In witness whereof I have hereunto set my
hand and seal this 7th day of April, 1993.
18

19

20

21 __________________________________
Robin L. Merker, RPR
22

23

24

25