1 STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

2

SUGAR CANE GROWERS COOPERATIVE OF :

3 FLORIDA, a Florida Agricultural :

Cooperative Marketing Association :

4 ROTH FARMS, INC., AND WEDGWORTH :

FARMS, INC., :

5 :

and :

6 :

FLORIDA SUGAR CANE LEAGUE, INC.; :

7 UNITED STATES SUGAR CORPORATION; :

and NEW HOPE SOUTH, INC., : CASE NOs.

8 : ---------

and : 92-3038

9 : 92-3039

FLORIDA FRUIT AND VEGETABLE : 92-3040

10 ASSOCIATION, LEWIS POPE FARMS, :

W.E. SCHLECHTER & SONS, INC., and :

11 HUNDLEY FARMS, INC., :

Petitioners, :

12 :

vs. :

13 :

SOUTH FLORIDA WATER MANAGEMENT :

14 DISTRICT, an Agency of the State :

of Florida. :

15 Respondent, :

:

16 MICCOSUKEE TRIBE OF INDIANS OF :

FLORIDA, the UNITED STATES OF :

17 AMERICA, and FLORIDA DEPARTMENT :

OF ENVIRONMENTAL REGULATION, and :

18 the FLORIDA WILDLIFE FEDERATION, :

Intervenors. :

19 __________________________________:

West Palm Beach, Florida

20 March 18, 1993

Thursday, 9:15 a.m.

21

22 VOLUME I

23 DEPOSITION OF

24 ANDERSON RACKLEY

Page 1

1 APPEARANCES:

2 PEEPLES, EARL, & BLANK

By: WILLIAM L. EARL, ESQUIRE, and

3 RICHARD A. RUSSELL, ESQUIRE,

Appearing on behalf of the Petitioners.

4

LAW OFFICES OF SIMMONS & SOLOMON

5 By: LYNN D. SOLOMON, ESQUIRE,

Appearing on behalf of the Respondent.

6

UNITED STATES ATTORNEYS OFFICE,

7 SOUTHERN DISTRICT OF FLORIDA

By: ROBERT A. ROSENBERG, ESQUIRE,

8 Appearing on behalf of the Intervenors

9

10

I N D E X

11

WITNESS PAGE

12

ANDERSON RACKLEY

13

Direct Examination by Mr. Rosenberg 3

14

15

16 E X H I B I T S

17 Government's No. 1 for Identification 6

Government's No. 2 for Identification 65

18 Government's No. 3 for Identification 92

Government's No. 4 for Identification 93

19 Government's No. 5 for Identification 102

Government's No. 6 for Identification 147

20 Government's No. 7 for Identification 163

21

22

Page 2

1 Deposition of ANDERSON RACKLEY, a

2 Witness herein, taken pursuant to the Rules and

3 Notice heretofore filed before SHELA K. ELLIS,

4 C.S.R, R.P.R, and Notary Public, State of

5 Florida at Large, at One Clearlake Center,

6 Suite 1403, 250 Australian Avenue South, West

7 Palm Beach, Palm Beach County, Florida, on the

8 18th day of March, 1993, commencing at 9:15

9 a.m.

10 __________________

11 Thereupon:

12 ANDERSON RACKLEY

13 a Witness herein, appearing at the instance of

14 the Intervenors and having been first duly

15 sworn by the court reporter and cautioned to

16 tell the truth of his knowledge as to the

17 within matters, was thereupon examined and

18 testified upon his oath as follows:

19

20 DIRECT EXAMINATION

21 BY MR. ROSENBERG:

22 Q Please state your full name, please.

23 A Anderson Hall Rackley.

24 Q And they call you Andy?

25 A That's right.

Page 3

1 Q Mr. Rackley, you are here pursuant to a

2 notice of deposition duces tecum, am I correct?

3 A Yes.

4 Q And that notice asked you to produce

5 various documents, am I correct?

6 A That's correct.

7 Q And there's four boxes of documents and

8 they are in response to the subpoena duces

9 tecum?

10 A Actually, I think there is 11 boxes.

11 Q More coming?

12 A Or 12.

13 MR. EARL: You have about eight over

14 there now, counsel, and there's a few more

15 coming through the door.

16 The request was so broad, overly broad,

17 actually, that if we erred, it was on the

18 side of providing more than whatever might

19 be responsive.

20 MR. ROSENBERG: Let me do this, let me

21 go through the questions with you and at

22 the end of the deposition this afternoon,

23 maybe we'll go through the documents, see

24 what we can pare out and what we are going

25 to do and see what the response is.

Page 4

1 MR. RUSSELL: I just put on the boxes --

2 I have put the paragraphs that they are

3 responsive to on each box.

4 MR. ROSENBERG: I will just ask one

5 question on the documents, while we are

6 here. Is there a privileged list on them?

7 MR. EARL: No. Custom in this case to

8 date has been that -- the United States'

9 custom, anyway, has been providing their's

10 several weeks after the deposition had been --

11 MR. ROSENBERG: All right. Okay.

12 Q (By Mr. Rosenberg) Mr. Rackley, I'm

13 going to ask you some questions, and if you

14 don't understand my question, you will please

15 tell me, if you would. Or if it's spoken too

16 quickly, it's not constructed right, I will try

17 and reconstruct it for you, is that okay?

18 A Yes.

19 Q If you don't know something, you can

20 simply say you don't know; is that all right?

21 A Yes.

22 Q If you need a break, tell me that, too

23 and we'll take a break.

24 Have you had your deposition taken

25 before in any other matter?

Page 5

1 A Yes.

2 Q And when was that?

3 A I don't recall the exact time.

4 Q How many times have you had your

5 deposition taken before?

6 A Once.

7 Q What's your -- Let me ask you a

8 preliminary question, we asked you to bring a

9 resume or curriculum vitae, is there one

10 around?

11 A Yes, it's in there.

12 MR. EARL: I would like to mark it,

13 counsel, if we are going to talk about it.

14 (Whereupon, an off the record

15 discussion was had.)

16 (Whereupon, Government's Exhibit No. 1

17 for Identification was marked by the

18 reporter.)

19 Q (By Mr. Rosenberg) Mr. Rackley, you

20 have been employed at the Florida Sugar Cane

21 League since March 1st of 1988?

22 A That's correct.

23 Q And you came there from American

24 Cyanamid?

25 A That's correct.

Page 6

1 Q This Exhibit 1 has an objective

2 paragraph, first one says, objective.

3 Responsible position in agricultural sales,

4 marketing, offering excellent advancement to

5 senior management. Why is there an objective

6 there?

7 A It's typical on most resumes.

8 Q You are not looking for a job now?

9 A No, that was on there when the resume

10 was put together, actually.

11 Q When was that?

12 A Prior to joining the Florida Sugar Cane

13 League.

14 Q This resume is several years old?

15 A Well, it's been updated to include 1988

16 to present. I just never changed the

17 objective, because that's where my background

18 was, was in sales and marketing.

19 Q It says here that you manage a staff of

20 21 people and two offices. You are the

21 Vice-President/General Manager?

22 A That's correct.

23 Q Now, over you -- who is over you in the

24 League? Who do you report to?

25 A I report to the board of directors.

Page 7

1 Q You are, in effect, the chief of staff

2 of the organization?

3 A In a manner of speaking, yes.

4 Q What departments are there? In the

5 staff of 21, what different departments are

6 there?

7 A Well, we have an agricultural research

8 department or effort.

9 Q Who is in that?

10 A Dr. John Dunckleman is the

11 vice-president of that group. And then he has

12 one agronomist, according to him, and that's --

13 and then there are four or five people who are

14 stationed over at Canal Point USDA Research

15 Station that work in a joint effort. They work

16 for the League, but they work in a joint

17 research effort with USDA.

18 Q And they are under Dunckleman?

19 A That's correct.

20 Q What other groups are there behind the

21 staff?

22 A We still have an environmental effort.

23 Environmental air network, that position, that

24 would have been comparable to Dr. Dunckleman's,

25 is currently open. And there are currently two

Page 8

1 people in that department.

2 Q What do they do?

3 A Their primary responsibility is to

4 manage the air network.

5 Q What does that mean?

6 A It's a network that measures the --

7 takes air samples periodically.

8 Q And those are air samples in the EAA?

9 A Primarily in the EAA, and I think we

10 now have a couple stations located just outside

11 of the EAA back toward Wellington.

12 Q These air samples, are these because of

13 burning; field burning?

14 A They are just simply so we can

15 demonstrate so that the quality of the air

16 where we farm is good quality.

17 Q What are they testing for, testing for

18 the results of field burning or results of mill

19 operation?

20 A They are not testing for either one of

21 those specifically, they are just testing to

22 see what the quality of the air is. I don't

23 know the parameters. I can't give you the

24 parameters.

25 Q Who are the individuals that work in

Page 9

1 that department?

2 A Mike Bellamy is the technician. And my

3 mind goes blank. Jeff Platt works for him.

4 Q And they make -- do they make periodic

5 reports to you?

6 A They make periodic runs and collect the

7 information.

8 Q Who do they report to?

9 A You mean functionally?

10 Q Yes.

11 A Currently they report to me since they

12 don't have a person in that position.

13 Q The who do they produce those reports

14 to?

15 A They don't actually produce any

16 reports.

17 Q How do you know what the air quality

18 is?

19 A We have a consulting firm that

20 information is turned over to.

21 Q Who is that?

22 A CH2 MHILL.

23 Q The agronomist department, the

24 Dunckleman department, that has seven people?

25 A As I recall. I'm not certain exactly

Page 10

1 how many of the positions are actually filled

2 at the USDA Canal Point Station.

3 Q More or less, six or seven?

4 A Yes.

5 Q Okay. And that's a research department

6 to research sugar cane?

7 A It's a department that's primarily

8 responsible for looking at ways to improve

9 sugar cane production.

10 Q And they would do what, then, in order

11 to do that?

12 A Well, Dr. Dunckleman would direct --

13 actually, would look for research proposals

14 that would benefit sugar cane production, he

15 wouldn't actually do the research.

16 Q All right. Would they contract out,

17 for example, to someone to get information on

18 flood tolerance strains of sugar cane?

19 A All of the research that we do

20 currently on ag. research, as I recall, is

21 through grants made to individuals or

22 universities or other agencies.

23 Q And Dr. Dunckleman's department would

24 monitor those grants, how it is coming along,

25 with whatever entity they have contracted with?

Page 11

1 A That's correct.

2 Q What's the agronomist environmental

3 effort? Is there a third staff operation?

4 A Not currently. We do have a public

5 relation effort that I primarily look after

6 myself. So that would be it.

7 Q How many people are employed in the

8 public relations?

9 A Just myself.

10 Q Says you supervise 21 people in two

11 offices. I count nine so far.

12 A Well, the 21 people -- actually that

13 number now is 16, we have just reduced the

14 staff very recently. I just realized that 21

15 was still there. There's a total of 16 people

16 in the Sugar Cane League.

17 Q You have the agronomist, environment

18 effort section, public relations section and no

19 other section?

20 A I have an office administrator who

21 reports to me who is also my secretary. We

22 have one other secretary/receptionist and

23 bookkeeper, and then we have three people in an

24 office in Washington D.C.

25 Q What does the Washington office do?

Page 12

1 A They are primarily there to work and

2 keep our industry informed about farm programs,

3 farm bills.

4 Q What are the names?

5 A Dalton Yancey, Elma -- her last name

6 escapes me -- and Mike Morton.

7 Q What is Mr. Yancey's background?

8 A I don't know specifically what his

9 background was before joining the League.

10 Q What is his job? What does he

11 specifically do?

12 A He's primarily interested or

13 responsible for monitoring, as I said earlier,

14 the farm program issues, trade issues, other

15 issues that are affected by what goes on in

16 Washington.

17 Q And what about Elma, what are her --

18 A She's a secretary.

19 Q And what about Mike Morton?

20 A Mike's more or less Dalton's assistant.

21 Q In your role as public relations

22 officer, what do you do?

23 A Well, primarily, I speak on behalf of

24 the industry to reporters, give presentations

25 from time to time to various groups that are

Page 13

1 interested.

2 Q You speak on behalf of the League or

3 the industry? Is there a difference?

4 A Well, both. Speak on behalf of both.

5 Q But you're employed by the League?

6 A That's correct.

7 Q Now, before you go out and speak on

8 behalf of the League are you -- do you have to

9 report to somebody? Are you directed by the

10 board what to say, what to do or do you go and

11 give your speech on your own?

12 A Well, any speech I give, obviously, is

13 based and premised upon carrying out the wishes

14 of the board, and on some issues on rather

15 broad terms and some other issues fairly narrow

16 terms.

17 Q Have they given you specific

18 instructions on what you are supposed to talk

19 about?

20 A On some occasions.

21 Q And is that common where the board

22 would give you a -- how is that done? When

23 they give you specific instructions how is that

24 done, is that a board meeting, say, Andy, we

25 want you to talk about this or that, or do they

Page 14

1 give you written instructions?

2 A It occurs in a number of different

3 ways.

4 Q When is the last time they gave you

5 specific instructions?

6 A About public speaking?

7 Q Yes, about the content of what your

8 speech is to be about?

9 A I don't recall the last time. I mean,

10 it's a fairly common occurrence.

11 Q Do they ever review what you have said

12 to people; Andy, you shouldn't have said this,

13 or you should have?

14 A Sure, sure.

15 Q Nice job here, nice job there?

16 A Sure, sure.

17 Q Says here you are responsible for

18 legislative efforts of the Florida Sugar Cane

19 Industry, what does that mean?

20 A Well, anything that the League does,

21 quite frankly, the board holds me responsible

22 for.

23 Sometimes I have some direct control

24 over it, and sometimes I don't. Legislative

25 activities simply means that, anything that's

Page 15

1 going on in legislation, either state or

2 nationally.

3 Q You hire lobbiest?

4 A I'm sorry?

5 Q Do you hire lobbyist?

6 A We have.

7 Q When is the last time you hired a

8 lobbyist?

9 A Well, actually I have never hired one,

10 we had one working for the League in

11 Tallahassee when I started with the League back

12 in 1988.

13 Q Who was that?

14 A Mercer Farrington.

15 Q Did you ever hire any lobbyist in

16 Washington?

17 A No.

18 Q So would it be fair to say the lobbying

19 in Washington on behalf of the League was done

20 by you?

21 A The work in Washington is done by a

22 combination of people.

23 Q Who does that?

24 A Dalton Yancey and the office that is

25 located there is responsible for information

Page 16

1 dissemination about our industry and looking

2 after our interests up there. Often times I go

3 up there to participate and to help and

4 numerous times, members of our board also

5 participate.

6 Q Further down in the paragraph it says

7 that you man development implementation of the

8 public relations -- public relation program,

9 resulting in significantly improved sugar

10 industry image.

11 What do you mean by significantly

12 improved sugar industry image?

13 A I think the term means we have improved

14 the image of the industry.

15 Q Was there anything deficient in the

16 image, in your view, that needed improvement?

17 A I think there's always been a view by

18 the urban population that agriculture was

19 interested in doing their job of growing food

20 and didn't pay a whole lot of attention to what

21 was going on on the coast with the urban

22 neighbors, and we simply sought to change that

23 feeling within the industry, but also

24 demonstrate to our urban friends and neighbors

25 that we did care about them, we were a part of

Page 17

1 the community and we were an important part.

2 Q Would it be your view, and tell me if

3 this is right or wrong, that the sugar image,

4 prior to your coming to the League, needed some

5 bolstering?

6 A It would be my view that the image of

7 all of agriculture --

8 Q I would like to --

9 MR. EARL: Let him finish his answer.

10 A (continuing) -- needed some adjusting

11 then and now. Sugar cane fell into that

12 category.

13 Q Okay, what, in terms of sugar cane,

14 needed adjusting? What were the deficiencies

15 that needed adjusting?

16 A I think the biggest deficiency, if you

17 can call it a deficiency, was they needed to

18 convince the urban community that they were a

19 part of the South Florida community and simply

20 be more visible, get out and talk to people and

21 meet people.

22 Q Is it just a matter of visibility or is

23 it a matter of substantive issues?

24 A It's primarily an issue of visibility

25 to let the urban community know that they were

Page 18

1 real people, you know.

2 Q Were there any substantive issues, in

3 your view, that needed improvement?

4 A Well, I can't give you specifics,

5 there's always room for improvement.

6 Q Were there any substantive issues you

7 felt were deficient that you had to immediately

8 counter of any sort?

9 A No.

10 Q Have you ever testified in court?

11 A No.

12 Q Have you ever testified in a court-type

13 procedure, a hearing-type procedure?

14 A Yes, I have.

15 Q Where?

16 A I testified in a -- I guess this was an

17 administrative hearing on a placement of a five

18 hundred KV powerline.

19 Q Who was that before?

20 A It was before a hearing officer.

21 Q Where was that at?

22 A That was in Tallahassee.

23 Q When was that?

24 A I don't recall the exact date.

25 Q Two years ago?

Page 19

1 A I don't recall. Since I have been with

2 the League.

3 Q Have you ever testified before a

4 legislative body of any sort?

5 A Yes.

6 Q Who was that?

7 A Well, I have testified before

8 committees on occasion.

9 Q Which ones?

10 A I don't remember specific ones. I have

11 testified, I don't know if you call it testify,

12 I have spoken to representatives from certain

13 committees on issues that affected the

14 industry.

15 Q Are these state or federal?

16 A State.

17 Q Where was this done?

18 A I don't recall the exact time.

19 Q What committee did you speak to?

20 A I know I have been before one of the

21 house committees on, I'm not sure what they

22 call it now, they keep changing the names of

23 committees, Natural Resources is the one I

24 recall.

25 Q This is the State of Florida?

Page 20

1 A Yes.

2 Q When was that?

3 A I don't recall.

4 Q Other than that experience have you

5 ever appeared before any committee with the

6 Florida legislature?

7 A I can't -- I don't have any details or

8 specifics, I have been up there a lot times,

9 and I'm sure I have when certain issues come

10 up, but I can't give you specifics.

11 Q What about meetings with staff, not

12 necessarily testifying before the committee,

13 but meetings with the staff of the Florida

14 legislature, have you ever met with staff

15 people?

16 A Yes, I have.

17 Q And when was the last time you did

18 that?

19 A I don't recall.

20 Q Do you know if that's been in the last

21 two years?

22 A I can't tell you if it was in the last

23 two years.

24 Q Do you know what the subject matter was

25 of that meeting?

Page 21

1 A No.

2 Q Have you ever met with any staff of the

3 United States congress?

4 A Yes.

5 Q When was that?

6 A About two weeks ago, as a matter of

7 fact.

8 Q Okay. Who did you meet with?

9 A I don't recall the names, but they were

10 aides to various members of the committee that

11 oversees farm programs for cotton, rice, and

12 sugar.

13 Q Where was that meeting at?

14 A In Washington.

15 Q And do you know who attended that

16 meeting?

17 A There were a number of people there. I

18 was there, Dalton Yancey, and then some other

19 farm interests from other parts of the country.

20 Q Do you know what senators were -- was

21 that senatorial staff people?

22 A These were staffs that reported to a

23 house committee.

24 Q It's a house committee?

25 A That's correct.

Page 22

1 Q Okay. Are there --

2 Did you voluntarily do that? Were you

3 subpoenaed to do that?

4 A Voluntary.

5 Q Are there any records? Do you have any

6 record?

7 A No.

8 Q Can you -- I want to find out, if you

9 can tell me, what the date was and who you

10 talked to?

11 A Well, I can't give you the specific

12 date, it was about two weeks ago.

13 Q Would Mr. Yancey have the date and time

14 and specifics of that meeting?

15 A He would probably have the date and

16 time, if he had a chance to think about it.

17 Q Would there be a record produced

18 someplace at the League regarding that meeting?

19 A No.

20 Q You didn't just appear at the meeting;

21 there was an arrangement made, wasn't there?

22 A Sure.

23 Q Was there an exchange of correspondence

24 to make that appearance?

25 A Absolutely not, just a phone call.

Page 23

1 Q Was there a record of that phone call?

2 A I don't know. There may be a phone

3 bill somewhere one day that shows a call was

4 made to somebody's phone.

5 Q How were you told to appear on that

6 date and time before that staff?

7 A How was I told?

8 Q Yes.

9 A Through conversations with Mr. Yancey.

10 Q He coordinated that?

11 A Him or somebody in his office would

12 have.

13 Q What was the substance of that meeting?

14 A Trade issues.

15 Q In particular, what trade issues?

16 A Trade issues that revolve around the

17 NAFTA negotiations, or North American Free

18 Trade Agreement.

19 Q Prior to that meeting two weeks ago,

20 have you ever met with any other staff or

21 congressional people?

22 A Yes.

23 Q When was that?

24 A I can't tell you. I met with a bunch

25 of them down through the years. I can't give

Page 24

1 you specifics.

2 Q Is there a log on that someplace?

3 A No.

4 Q Would there be correspondence in your

5 file on that someplace?

6 A Well, not that I am aware of.

7 Q Would Mr. Yancey have information on

8 that?

9 A I'm sure Mr. Yancey has some specifics

10 on various meetings he's attended. I can't

11 tell you if he's got any information on

12 meetings that I might have attended with him.

13 Q When you attended these meetings in

14 Washington, was Mr. Yancey there on each

15 occasion?

16 A The most recent meetings?

17 Q I have asked you what meetings you

18 attended, you said there's a whole lot of them,

19 but you don't recall. My question is on those

20 meetings was it common for you to go with

21 Mr. Yancey?

22 A Some of the meetings Mr. Yancey was

23 present and some he was not.

24 Q And it's your testimony that you do not

25 keep a log or correspondence file or any

Page 25

1 information that could tell us what meetings

2 you went to and when?

3 A I don't recall anything of the sort.

4 Q You never made a memorandum from the

5 meeting, from any of these meetings?

6 A I don't personally recall making a

7 memorandum.

8 Q Did you ever report back to your board

9 regarding those meetings?

10 A Always.

11 Q So would it not be fair to say that in

12 the minutes of your board meetings it would

13 reflect what meetings you attended, the

14 information you imparted back to the board?

15 A That's possible, although not always

16 the case.

17 Q When you go to board meetings is it

18 common to take minutes?

19 A Yes.

20 Q Okay. And would your report to the

21 board -- would you commonly report to the board

22 if you had a meeting with congressional staff

23 people or congress people?

24 A Most of the time, but like I said

25 earlier, not always.

Page 26

1 Q If it were, without defining the term

2 an eventful-type meeting, a meaningful-type

3 meeting, would you not make that report to --

4 MR. EARL: Do you understand the term

5 meaningful or eventful?

6 THE WITNESS: I'm not sure I do.

7 Q (By Mr. Rosenberg) When you meet with

8 these people from congress, these staff

9 meetings, these are set up by somebody, are

10 they not? You don't just appear?

11 A That's correct.

12 Q Are you generally invited to those

13 meetings? Are you generally invited? Do they

14 ask you to appear or do you ask to appear?

15 A Well, it varies. Sometimes we are

16 asked to appear, or come to meet with some of

17 them about certain things, and other times

18 there are meetings that we have asked to be

19 there.

20 Q When they ask you to appear, do they do

21 that in writing?

22 A I don't recall ever receiving anything

23 in writing. These normally take place, as I

24 said earlier, with a phone call.

25 Q Is there any memorandum made of that

Page 27

1 phone call when you are asked to appear?

2 A Not that I'm aware of.

3 Q When you ask to appear, you ask to

4 appear in writing or is that by phone call,

5 also?

6 A By phone call.

7 Q Is it your testimony that there are no

8 records at the League, that you know of,

9 regarding any of these meetings?

10 MR. EARL: Asked and answered, counsel.

11 Also, we are in a relevancy area here.

12 What these meetings have to do with the ER

13 permit for the Water Management District

14 and the SWIM Plan, I have a hard time

15 understanding, and I let you go on here for

16 20 minutes. I'm going to object on the

17 grounds of relevancy.

18 MR. ROSENBERG: He's telling me, I'm

19 asking him right now if there are records

20 of the meetings.

21 MR. EARL: You have already asked him

22 that twice.

23 MR. ROSENBERG: And he's telling me

24 there are no records of these meetings.

25 MR. EARL: That's not what he said.

Page 28

1 You can go back and read the transcript.

2 Q (By Mr. Rosenberg) Are there records of

3 these meetings that you know of?

4 MR. EARL: Objection, asked and

5 answered.

6 MR. ROSENBERG: You can answer the

7 question.

8 MR. EARL: I will instruct my witness,

9 okay? You can instruct your witnesses.

10 You may answer the question, as you

11 answered it before. Or you can answer it

12 if you have more information.

13 A (By the Witness) I don't recall any

14 records.

15 MR. EARL: That's what he said before,

16 counsel.

17 Q (By Mr. Rosenberg) Have you ever

18 testified under oath before any congressional

19 committee?

20 A No.

21 Q Have you ever made or do you know of

22 anyone from the League that's made a written

23 submission to a congressional committee?

24 A I know some of our members have.

25 Q Would they do that through the League

Page 29

1 or would they do that independent of the

2 League?

3 A Probably some of both.

4 Q When they do that through the League is

5 there -- are there records kept of that?

6 A Not necessarily. No.

7 Q I'm looking through your resume here,

8 going from the earliest, sir, 1974, '76, and

9 up, I'm trying to summarize it, would it be

10 fair to say that the first few jobs you had

11 Union Carbide, BASF Wyandotte, were sales jobs,

12 sales and marketing?

13 A All of the jobs I had prior to joining

14 the League were sales and marketing-type jobs.

15 Q Other than sales and marketing what

16 else did you do in those jobs in terms of

17 general background, was it just you were in

18 charge of a marketing division of some sort?

19 A You need to be more --

20 Q Let me withdraw the question.

21 Does your job now with the League

22 encompass more than you had done in your

23 previous jobs?

24 You told me that you do public

25 relations now and you have done some

Page 30

1 legislative work, did you do that in the

2 earlier jobs?

3 A I don't know how to answer your

4 question. Quite frankly, I stayed busy in the

5 jobs I had before, and I stay busy now.

6 Q In your earlier jobs before the League

7 you were in sales and marketing, was it soley

8 confined to that?

9 A Not solely confined to that, that was

10 the primary.

11 Q What other major components were there

12 in your earlier jobs other than sales and

13 marketing?

14 A I can't give you specifics, I always

15 worked for somebody else and I did whatever

16 they told me to do.

17 Q Did that encompass public relations or

18 legislative work?

19 A No legislative work.

20 Q Have you authored or coauthored any

21 articles?

22 A I think I might have written a short

23 article once for one of the farm magazines.

24 Q Was that on a sugar subject?

25 A As I recall it was just on sort of a

Page 31

1 description of the sugar industry, several

2 years ago.

3 Q And what magazine was that for?

4 A I don't recall the magazine.

5 Q Do you recall the name of the article?

6 A No.

7 Q Is that article retrievable by you?

8 Can you get a copy of that article?

9 A Probably get a copy from the magazine

10 if I could reconstruct which one it was. It

11 was one of the farm magazines, I don't recall

12 which one it was. There are several in the

13 State of Florida.

14 Q I have asked you questions where you

15 were author or coauthor, have you been an

16 editor or reviewer of articles that have been

17 submitted on behalf of the League?

18 A No.

19 Q When articles are submitted on behalf

20 of the League to, say, Florida Trend or to some

21 farm magazine, are they customarily passed

22 through you or not?

23 A No.

24 Q Do you have a person you directly

25 report to?

Page 32

1 A I have 15 people I directly report to.

2 Q And there's no one of those that is

3 your primary contact person?

4 A No.

5 Q In this matter there are different

6 petitioners, have you ever worked for any other

7 petitioner in this matter, other than the

8 Florida Sugar Cane League?

9 A I'm sorry?

10 Q Did you ever work for any other

11 petitioner here, the co-op for example, or a

12 vegetable group, or have you been solely

13 working for the Florida Sugar Cane League?

14 A I never worked for anybody other than

15 the Sugar Cane League.

16 Q Prior to coming here to testify and

17 have your deposition taken, have you relied on

18 or reviewed any writings?

19 A No.

20 Q Did you prepare to testify here by

21 looking at any documents or memorandum?

22 A I went back and looked at some of the

23 proceedings.

24 Q And what proceedings were those?

25 A I don't recall specifically.

Page 33

1 Q Other than looking at some of the

2 proceedings, have you prepared to testify here

3 by reviewing anything else?

4 A No.

5 Q You're aware, of course, you have been

6 identified as a witness in this case?

7 A Yes, sir.

8 Q And you are aware that your

9 identification as a witness has stated that you

10 will testify in these matters regarding

11 standing, are you aware of that?

12 A Yes.

13 Q That you would testify regarding

14 impacts of the Everglades SWIM Plan and

15 agricultural practices?

16 A Yes.

17 Q That you would testify regarding

18 impacts on the League?

19 A Yes.

20 Q And impacts on its members?

21 A Yes.

22 Q Is there any other subject matter that

23 you have been told that you are going to

24 testify about?

25 A I don't recall anything else.

Page 34

1 Q So your testimony, would it be fair to

2 say, would be confined to those matters?

3 A I think I would answer that question

4 yes.

5 Q There is no other matters that's been

6 added?

7 The reason I'm asking the question, is

8 it says the matter of his anticipated testimony

9 as determined at this time. That was sometime

10 ago, I want to know if that has been

11 supplemented.

12 A I don't know of anything other than

13 what you have stated.

14 MR. EARL: Just to clarify the record,

15 counsel. Since that was filed, there's

16 also been another challenge filed, which is

17 on the Water Management District's ER

18 permit. I would assume that Mr. Rackley

19 will be testifying on that, many of the

20 issues are the same or similar.

21 MR. ROSENBERG: I simply asked. That

22 may be true. I want to know if there is

23 any expansion regarding this matter -- of

24 the subject matter of this, because it said

25 anticipated testimony as determined at this

Page 35

1 time, and it may be that sometime after

2 this deposition he's going to testify

3 regarding this component it turns out there

4 is an extra component that I am not

5 familiar with.

6 MR. EARL: I just told you one, the ER

7 permit.

8 MR. ROSENBERG: Other than that?

9 MR. EARL: We are unaware of any right

10 now, but issues develop, as you know. It's

11 a fluid situation.

12 Q (By Mr. Rosenberg) what type of

13 organization is the Florida Sugar Cane League?

14 A The Florida Sugar Cane League is

15 growers of sugar cane, and processors,

16 primarily.

17 Q Who belongs to it?

18 A Those who grow sugar cane and process

19 sugar cane.

20 Q Some of those who grow and process

21 sugar cane in the EAA?

22 A The Everglades Agricultural Area.

23 Q And structurally, how is it structured?

24 You have a president and you have a

25 vice-president?

Page 36

1 A Primarily the policy decisions of the

2 League are made by a board of directors.

3 Q Those are the 15, 15 people you said

4 you had to report to?

5 A That's correct.

6 Q Is there a nominal president of the

7 League?

8 A There's a chairman and a president, and

9 secretary-treausurer. And I believe now we

10 also have an assistant secretary-treasurer.

11 Then, of course, as a vice-president and

12 general manager, I'm also an officer.

13 Q Can you give me a list; chairman,

14 president, secretary-treausurer?

15 A Chairman is Jim Arlen Hilliard and the

16 president is Jose Fanjul. J-o-s-e F-a-n-j-u-l.

17 Q And the secretary?

18 A Secretary, currently we just -- let me

19 think now. Secretary currently now is Don

20 Carson, as I recall.

21 Q Treasurer?

22 A He's secretary and treasurer.

23 Q And you are a vice-president?

24 A That's correct.

25 Q Okay. How many members are there of

Page 37

1 the League?

2 A There are approximately 75 members.

3 Q How often does the board meet?

4 A We have scheduled board meetings every

5 other month.

6 Q There are minutes taken of board

7 meetings?

8 A Yes.

9 Q Who takes the minutes of the board

10 meetings?

11 A Normally I take the minutes.

12 Q Are the minutes then typed up and

13 circulated to the board members after the

14 meeting?

15 A Yes, we mail them to the board members

16 after the meeting.

17 Q Is the board meeting open to all 75

18 members?

19 A Actually, I don't know. I mean, we

20 have never had a board meeting where all 75

21 asked to show up, I assume it is, we have never

22 had that.

23 Q When board meetings are scheduled is

24 there a notice sent out?

25 A To the board members, that's correct.

Page 38

1 Q Not a notice sent out to the non board

2 members?

3 A No.

4 Q Does the League also have, I guess as

5 required by law, yearly meetings, annual

6 meetings?

7 A Yes.

8 Q Is that it, at these annual meetings

9 the board is selected? Select the president?

10 A Yes.

11 Q Is there a list of current board

12 members that you have?

13 A Yes.

14 Q Do you know it by heart, or can I

15 simply ask you for the list?

16 A I think we might have produced a list

17 in your request for documents, I don't recall

18 if we did.

19 Q Do you know if the board members

20 presently are the same as the board members in

21 1990?

22 A No, they aren't.

23 Q Is there also a 1990 list of board

24 members?

25 I don't know if we have -- is there --

Page 39

1 Is there a list of 1990 board members that is

2 retrievable by you?

3 A I don't know if there is or not. I

4 normally only try to keep myself concerned with

5 the current board.

6 Q You would keep records of the current

7 year's board meetings, wouldn't you?

8 A That's correct.

9 Q How is the League funded?

10 A From dues paid by its members.

11 Q And are these dues payments passed by

12 the board? Board, in effect, makes

13 assessments?

14 A The board approves a budget and then

15 determines the dues structure.

16 Q Does the board also approve all

17 expenditures in every given year?

18 In other words, you make the grants, I

19 guess, to various entities or you enter into

20 contracts with various scientific study groups,

21 am I correct?

22 A That's correct.

23 Q When these grants are made, are -- the

24 scientific moneys contracted out, are those

25 matters taken before the board or is that

Page 40

1 something that you do as vice-president?

2 A Normally anything that is outside of

3 the operating expenses of the office or salary

4 or administrative costs, those kinds of things,

5 would be taken to the board.

6 Q So if a grant were made to IFAS for one

7 study or another and that grant were 30

8 thousand dollars, that grant would require

9 board approval?

10 A Sometimes they would, if it were a

11 specific ag. grant, the board would often times

12 defer that approval to the appropriate

13 committee, in that instance it would be the

14 ag. research committee.

15 Q Is that commonly the situation, the

16 board has various committees attached to it,

17 and those committees would approve various

18 expenditures?

19 A Normally the committee would approve

20 items that fell within their area of

21 responsibility.

22 Q Is a there list that you have of funded

23 projects in any given year?

24 A Not that I'm aware of.

25 Q How do you monitor what is going on in

Page 41

1 various projects if you don't have a list or

2 some compilation of them?

3 A For instance, with ag. research I would

4 hold Dr. Dunckleman responsible for handling

5 those projects, and as long as he fell within

6 the budgets of that particular area, then we

7 would be satisfied. I'm sure he uses whatever

8 works best for him in terms of keeping up with

9 his projects.

10 Q Assume there was a given number of

11 funded projects, and for example, ten, would

12 Dr. Dunckleman be responsible for monitoring

13 each of those ten projects?

14 A If they had to do with ag. research,

15 that's correct.

16 Q Then when he monitors those projects

17 does he report back to you as to what's

18 happening on those projects? Does he issue a

19 report to anybody?

20 A Of course. John reports to me on a

21 daily basis what's going on. He also reports

22 to the board whenever we have a board meeting.

23 He also meets periodically with the

24 ag. research committee, which is where most of

25 the reporting would be done back to the League

Page 42

1 proper, if you will.

2 Q To the best of your knowledge is there

3 a list of current funded projects by the

4 League?

5 MR. EARL: Asked and answered, counsel.

6 He's already answered that question.

7 Q (By Mr. Rosenberg) Well, I'm not sure

8 he has.

9 But, is there a list that you have or

10 Dunckleman would have, or somebody else would

11 have, of current funded projects that is

12 charted on a board someplace, or come up for

13 review?

14 A I'm not aware of a complete list of

15 everything that is funded.

16 Q The projects that are funded, some of

17 them are scientific, am I correct?

18 A That's correct.

19 Q Are some of them also economic?

20 A From time to time we might be involved

21 in some economic funding, sure.

22 Q Are you funding any economic projects

23 now?

24 A Yes.

25 Q What economic projects are you funding

Page 43

1 now?

2 A I believe those projects under

3 attorney/client privilege that are currently

4 ongoing.

5 Q Well, do you employ Peterson

6 Consulting?

7 A The League directly does not employ

8 Peterson Consulting.

9 Q Is the League directly funding any

10 economic consulting group?

11 A Not currently.

12 Q Does the League currently have projects

13 concerning BMPs?

14 A Well, yes, we do.

15 Q And do you know what those projects

16 are?

17 A The League made a grant to the

18 University of Florida, Dr. David Anderson, to

19 look at some of the proposed BMPs in order to

20 meet the BMP section of the SWIM Plan.

21 Q Is there any other BMP project that is

22 being funded now?

23 A There's still a limited amount of work

24 being done and funded on some other aspects of

25 the BMPs through Hutcheon Engineers.

Page 44

1 MR. EARL: Mr. Rackley, in giving your

2 answers, you may answer anything that is

3 not the subject of attorney/client or

4 attorney work product. Only provide

5 information on those matters.

6 Q (By Mr. Rosenberg) Is there any project

7 concerning alternatives to BMPs that the League

8 is funding?

9 When I say BMPs, I'm talking about the

10 BMPs that are listed in the SWIM Plan, any

11 projects concerning alternatives to those?

12 A I don't recall anything other than what

13 I have just mentioned to you.

14 Q Is the League funding any projects now,

15 any scientific projects now concerning STA

16 study?

17 A No.

18 Q Is the League funding any project now

19 concerning subsidence study?

20 A No.

21 Q Is the League funding any project now

22 concerning mercury study?

23 A No. The League is not funding anything

24 on mercury, no.

25 Q Do you know if the members of the

Page 45

1 League are funding any projects concerning

2 BMPs?

3 A No.

4 Q Do you know, for example, if the --

5 A I'm sorry, I misunderstood the

6 question.

7 Q Do you know if members of the League

8 are funding projects concerning BMPs?

9 A Well, I know some of the members are

10 actually out doing some on-farm work on BMPs,

11 if that falls within what you are asking.

12 Q Who's doing on-farm work regarding

13 BMPs?

14 A Well, I know U.S. Sugar is.

15 Q Do you know what that work is?

16 A I can't give you specifics, I just know

17 from conversations.

18 Q Do you know if any other member of the

19 League is doing on-farm BMP studies?

20 A No, I don't.

21 Q Do you know if any member of BMP is

22 doing any economic studies?

23 MR. EARL: Counsel, the question

24 doesn't make sense.

25 MR. ROSENBERG: I'm asking if he knows

Page 46

1 of any member of the League, not the League

2 itself, any member of the League that is

3 doing economic studies regarding the EAA.

4 A (By the Witness) No, I don't.

5 Q Do you know if any member of the League

6 is doing any studies regarding alternatives to

7 BMP?

8 A Not alternatives to BMP, no.

9 Q Do you know if any member of the League

10 is doing any studies concerning phosphorus

11 removal?

12 A No.

13 Q Do you know if any member of the League

14 is doing any studies concerning subsidence?

15 A No.

16 Q Do you know if any member of the League

17 is doing any study concerning STAs?

18 A No.

19 Q Do you know if any member of the League

20 is doing any study concerning mercury?

21 A No.

22 Q Do you know if any member of the League

23 within the last two years has done any studies

24 concerning subsidence, STA, mercury or

25 phosphorus removal?

Page 47

1 A No, I don't.

2 Q Do you know in the last two years if

3 any members of the League has done any studies

4 regarding alternatives to BMPs, other than

5 U.S. Sugar's on-farm projects?

6 A Would you restate the question, please.

7 Q Other than U.S. Sugar's on-farm

8 projects, do you know of any other member of

9 the League that is doing any studies regarding

10 BMPs or alternatives to BMPs, within the last

11 two years?

12 A Yes.

13 Q Who is that?

14 A Flo-Sun.

15 Q What Flo-Sun project is that, that you

16 know of?

17 A They were involved in the, in an Algal

18 Turf Scrubber study.

19 Q Is that ongoing now, to the best of

20 your knowledge?

21 A I believe that work has been either

22 discontinued or completed.

23 Q You have no firsthand knowledge of

24 that, would that be fair to say?

25 A Well, the Algal Turf Scrubber and its

Page 48

1 potential was presented in an alternative plan

2 that I was familiar with.

3 Q But the substance of the study by

4 Flo-Sun, do you have firsthand knowledge of

5 that?

6 A I don't have the final results, no.

7 Q When members of the League do these

8 studies independent of the League on any of

9 these subject matters, is it common that they

10 furnish you with the results of their research

11 or their reports?

12 A Not always.

13 Q Is there anybody at the League who

14 coordinates who's doing what in the EAA,

15 regarding BMP studies?

16 A No.

17 Q They wouldn't report to you, for

18 example, to act as a clearing house so you

19 would know what an entity over here, as opposed

20 to an entity over here is doing?

21 A Not on a routine basis.

22 Q Does it ever happen?

23 A Well, it obviously happened because I

24 was aware of the Algal Turf Scrubber.

25 Q Does the League have affiliations with

Page 49

1 other state or national groups?

2 A We have a tri-party agreement with

3 USDA, University of Florida to do sugar cane

4 breeding research.

5 Q Do you have affiliations with other

6 lobbying groups or other trade groups?

7 A The League doesn't, no, that I'm aware

8 of, just off the top of my head.

9 Q Does the League belong to any PAC,

10 political action committee?

11 A Does the League belong to any political

12 action committee?

13 Q Yes.

14 A No.

15 Q Do the -- Do you know if any members of

16 the League belong to any political action

17 committee?

18 A I don't know that.

19 Q Do you know if there -- if there is a

20 sugar group political action committee of any

21 sort?

22 A Yes.

23 Q What do you know about that?

24 MR. EARL: Objection, relevancy. You

25 can answer.

Page 50

1 Q What do you know about that?

2 A There is an Everglades Agricultural

3 Area PAC which is a state PAC.

4 Q Is that the only one you know about?

5 A Then there is a federal PAC, the two

6 have to be separate.

7 Q Who belongs to those PACs?

8 A Well, the state PAC is primarily --

9 primarily funded by the U.S. Sugar Company,

10 Flo-Sun Company, or the mill owning companies,

11 I guess is what I am trying to say, the ones

12 that are on the mill -- the processor side of

13 the business. The federal PACS are funded by

14 individual contributions from individual grower

15 and processor members.

16 Q Do you know the name of these PACs?

17 MR. EARL: Same objection, relevancy.

18 You can answer, if you know.

19 A (By the Witness) State PAC is called

20 Everglades Agricultural Area PAC, and off the

21 top of my head I can't tell you what we

22 actually call the federal PAC.

23 Q When a legislation is being discussed,

24 focus on federal legislation or employee

25 quotas, or matters such as that, when that is

Page 51

1 being discussed, what is the process by which

2 the League takes a position and advises your --

3 let me withdraw the question.

4 Concerning the import quota of

5 legislation in 1990, were you -- you were on

6 the staff of the League at that time, were you

7 not?

8 A Yes.

9 Q And did the League take a position on

10 that legislation?

11 MR. EARL: Objection, relevancy.

12 How is this relevant, counsel, to the

13 SWIM Plan ER permit?

14 MR. ROSENBERG: It's relevant because

15 there were certain admissions made by the

16 members of the League or the League itself

17 regarding certain issues.

18 MR. EARL: I don't understand your --

19 MR. ROSENBERG: I think it will become

20 more relevant, I believe there were certain

21 statements made that are in the nature of

22 admissions.

23 MR. EARL: We'll go ahead and have a

24 continuing objection, then I would not have

25 to interrupt you.

Page 52

1 MR. ROSENBERG: Right now I'm just

2 asking the process. I want to know the

3 process by which the position was

4 formulated by the League regarding that

5 legislation.

6 A (By the Witness) Well, positions in the

7 League tend to evolve over time.

8 Generally speaking, our members have a

9 pretty good idea what needs to be in a farm

10 bill as far as sugar production is concerned.

11 Any decisions on the position would be taken or

12 reached, primarily, through the legislative

13 committee of the League.

14 Q And who is on that legislative

15 committee?

16 A Who's on it now?

17 Q Well, I would like who is on it now; I

18 really want to know who was on it in 1990.

19 A I don't recall who was on it in 1990.

20 Q Would there be documents retrievable

21 that would tell us who was on that committee in

22 1990?

23 A I'm not certain if we still have a

24 listing of who was on there in 1990.

25 Q It's your testimony, as I think I

Page 53

1 understand it, that you did not -- withdraw

2 that, too.

3 In 1990 the League didn't hire a

4 lobbyist regarding the import quota of federal

5 legislation, did they?

6 A No.

7 Q Would it be fair to say that the

8 lobbying, if any, was done by League members or

9 League staff?

10 A Any work on the sugar program or farm

11 bill was coordinated by our office in

12 Washington and involved numerous members of the

13 industry.

14 Q Okay. Within the next six to eight

15 months, as far as you can project into the

16 future, does the League intend to hire anyone

17 presently employed by the University of Florida

18 or IFAS?

19 A I can't answer that question.

20 Q As far as you know now, do you intend

21 to hire anybody for a staff position that is

22 now affiliated with the University of Florida

23 or IFAS?

24 A I don't have any plans.

25 Q Do you know if any members of the

Page 54

1 League intend to offer employment to anybody

2 now presently employed by IFAS or the

3 University of Florida?

4 A I don't know.

5 Q Does the League have a record

6 librarian?

7 A No.

8 Q What type of retrieval system does the

9 League employ to get records of either earlier

10 studies or minutes of meetings or

11 correspondence? Do you have any retrieval

12 system?

13 A Well, I usually send my secretary back

14 to the file and see if she can find it.

15 Q And the files are in date order?

16 A Usually by -- usually by subject

17 matter.

18 Q Does the League have a system of

19 purging their files of correspondence or

20 documents?

21 A I wouldn't say they really have a

22 system, we clean out from time to time, when

23 files are overflowing, but I don't -- I have

24 not instituted nor am I aware of any system of

25 purging files, no.

Page 55

1 Q You wouldn't purge minutes of board

2 meetings two or three years ago, would you?

3 When I say you, the staff of the League?

4 A No.

5 Q Are you personally familiar with the

6 1990 federal sugar legislation?

7 A I'm generally familiar with it.

8 MR. EARL: Continuing relevancy

9 objection; correct, counsel?

10 MR. ROSENBERG: Fine.

11 Q (By Mr. Rosenberg) Are you also

12 familiar with the proposed Bradley amendment to

13 that legislation?

14 A I don't recall what the Bradley

15 amendment was.

16 Q Do you recall whether there was an

17 amendment to remove two cents from the loan

18 price?

19 A I do recall there was some talk about a

20 two-cent reduction, yes.

21 Q Regarding that 1990 legislation, that

22 Bradley amendment, that two-cent situation, was

23 there anybody on the League who acted as a

24 principal point person with congress on that?

25 MR. EARL: On the specific two cents,

Page 56

1 you are talking about?

2 MR. ROSENBERG: That's right, on the

3 Bradley amendment.

4 Was there anybody who acted as the

5 specific point person on that?

6 A (By the Witness) For?

7 Q For the League.

8 A I don't recall anybody acting as a

9 point person for that specific issue.

10 Q Was there anybody who acted as point

11 person for the League regarding the 1990 sugar

12 legislation?

13 A Normally the point person in Washington

14 would be Dalton Yancey.

15 Q Was there any member of the League that

16 acted in a primary or point person?

17 A No.

18 Q Are you familiar with the non recourse

19 loan program?

20 A I don't --

21 MR. EARL: Objection, relevancy.

22 MR. ROSENBERG: Just ask if he's

23 familiar with it.

24 A (By the Witness) I have a general

25 understanding or familiarity with it.

Page 57

1 Q Do you know when the last default was

2 made by any sugar cane producer in the EAA?

3 MR. EARL: Continuing objection and

4 relevancy; counsel?

5 Continuing objection, relevancy,

6 correct?

7 MR. ROSENBERG: If you say so. You're

8 on record.

9 MR. EARL: You agree that I have a

10 continuing objection?

11 MR. ROSENBERG: Yes.

12 MR. EARL: That's all I need.

13 Q (By Mr. Rosenberg) Let me go back to

14 that. Your answer was you don't recall the

15 last default made by a sugar cane producer in

16 EAA?

17 A No.

18 Q Do you have any information that if a

19 member of the League would receive only the

20 loan rate for his product that he would lose

21 money?

22 MR. EARL: Objection; form of the

23 question.

24 Q (By Mr. Rosenberg) I will reconstruct

25 it, then.

Page 58

1 Do you have any information, you,

2 yourself, that if a member of the League were

3 to receive only the loan rate for his product

4 that he would lose money?

5 A I don't have any knowledge of the

6 financial conditions of the members.

7 Q Does the League have any studies or

8 records indicating that at 18 cents a pound for

9 sugar any members of the League would lose

10 money?

11 A None that I'm aware of.

12 Q From 1980 to 1989, in Florida, focusing

13 on the EAA, did the number of sugar harvest

14 acres increase or decrease?

15 A Would you restate the question.

16 Q From 1980 to 1989 --

17 MR. EARL: What was the question?

18 Q (By Mr. Rosenberg) Did the number of

19 sugar harvested acres increase or decrease in

20 the EAA from the period 1980 to 1989?

21 A I believe it increased.

22 Q Do you know by what amount?

23 A I don't recall the amounts, no.

24 Q Does the League keep records of that?

25 A We have a chart that shows what the

Page 59

1 acreage has been during that time period, as I

2 recall.

3 Q So the answer would be that you do keep

4 a record of that?

5 MR. EARL: That's not his answer.

6 Q (By Mr. Rosenberg) I will rephrase it.

7 Other than the chart do you keep records?

8 A We do have some charts on the sugar

9 cane acreages, I'm not sure how far back it

10 goes.

11 Q Now, for the same period, 1980 to 1989,

12 did the number of growers of sugar increase in

13 the EAA?

14 A I don't know the answer to that.

15 Q Do you know how many sugar growers

16 there are in the EAA today?

17 A I don't know an exact number.

18 Q Is it approximately 135?

19 A I can't tell you. I'm speculating.

20 Q Does the League have records on that,

21 as to how many growers there are in the EAA?

22 A No.

23 Q Do you know anyone who would have

24 records of that?

25 A I would guess the ACAS office, which is

Page 60

1 a part of USDA, would have a list.

2 Q Does the League keep records of the

3 size of growers in the EAA who owns what land,

4 what amounts?

5 A No.

6 Q Is there a map someplace in the EAA

7 which is -- shows -- which shows by virtue of

8 shading who owns what part of the EAA?

9 A No.

10 Q Did you not -- did the League, to the

11 best of your knowledge, ever produce a map in

12 1985 or 1986 with various shadings showing U.S.

13 Sugar owned property and Flo-Sun's owned

14 property?

15 A No.

16 Q Are you not familiar with that?

17 A We never produced one like that.

18 Q Were you never in the offices of Hazen

19 and Sawyer?

20 A No.

21 Q When the people from Hazen and Sawyer

22 came over to the League, did they ever request

23 a map of you from the EAA?

24 A Yes, I think they did.

25 Q Did you furnish them with a map?

Page 61

1 A Yes.

2 Q And what type of map did you furnish

3 them with?

4 A It was a map that showed the various

5 sugar mills in the EAA and the cane acres that

6 went to each of those mills.

7 Q Did it also show on that map, by virtue

8 of shading and other ways of separating, who

9 owned what land in terms of bigger producers?

10 A No.

11 Q Do you have other copies of that 1985

12 map available?

13 A Yes.

14 Q Could we be furnished with a copy of

15 that?

16 MR. EARL: If it's in the documents you

17 get it, counsel. If you want to see -- you

18 can get it -- you obviously seen it -- if

19 it was called for by your request.

20 Q (By Mr. Rosenberg) If is isn't

21 furnished, if we subpoena it, would you have

22 one there, an extra?

23 A I have some in stock.

24 Q Okay.

25 MR. EARL: Could we take a short break.

Page 62

1 (Whereupon, a recess was taken.)

2 Q (By Mr. Rosenberg) Is the League

3 presently sponsoring a program to study

4 phosphorus and nitrate pollution in the

5 Everglades?

6 A No.

7 Q Has the League had such a program

8 within the last two years?

9 A No.

10 Q Do you know if any of the members of

11 the League have a program to study phosphorus

12 and nitrate pollution in the Everglades?

13 A No.

14 Q You don't know?

15 A No.

16 Q Do you know if any member of the League

17 has had such a program within the last two

18 years?

19 A No.

20 Q What does the term "best management

21 practices" mean to you?

22 A Means those practices that a farmer

23 would use that would have the greatest crop

24 producing capability with the least amount of

25 input.

Page 63

1 Would be those practices that a farmer

2 or grower would have that would have the

3 greatest crop producing potential with the

4 lowest amount of input.

5 Q Are you aware of the IFAS BMPs?

6 A Generally, I'm aware.

7 Q Does the League also have some of its

8 own BMPs or proposed BMPs?

9 A We proposed some BMPs as part of an

10 alternative plan.

11 Q Has the League undertaken any study

12 that has quantified the risks regarding

13 elevated water tables?

14 A I can't answer that question. I don't

15 know.

16 Q To the extent that you know about the

17 BMPs, can the effectiveness of the IFAS BMPs be

18 generally determined at this time?

19 A You got to be more specific.

20 Q You are familiar -- Well, let me do

21 that.

22 Let me give you something that I'm

23 going to mark Government Exhibit 2, which is

24 the part of the planning document of the SWIM

25 Plan, pages 110 through 117, and ask you if you

Page 64

1 have seen that before, and if you are familiar

2 with that?

3 (Whereupon, Government's Exhibit No. 2

4 for Identification was marked by the

5 reporter.)

6 A (By the Witness) Seems I recall

7 reviewing this.

8 MR. EARL: Take your time. If you need

9 to read it, read it.

10 Q (By Mr. Rosenberg) Sir, have you read

11 the document or glanced over the document?

12 A I have looked through it.

13 Q You have seen it before, haven't you?

14 A Yes.

15 Q In the League's view, can the

16 effectiveness of the IFAS BMPs be generally

17 determined as of this time?

18 MR. EARL: Objection, insofar as the

19 question calls for expert opinion.

20 MR. ROSENBERG: I'm not asking for

21 expert opinion, I want you to understand

22 that.

23 Q (By Mr. Rosenberg) To the extent that

24 you understand the League's view, can the

25 effectiveness of BMPs be generally determined

Page 65

1 at this time?

2 MR. EARL: You can answer that question

3 if you understand that the League has taken

4 a position on that.

5 A (By the Witness) As far as I know the

6 League has never, at least in my presence that

7 I know of, reviewed these BMPs and made a

8 determination that this one will work and this

9 one won't.

10 Q Have the members of the League, to the

11 best of your knowledge, been implementing some

12 of the BMPs that IFAS has proposed here in this

13 exhibit?

14 A Some of the members are.

15 Q Is the League, to the best of your

16 knowledge, researching these BMPs or continuing

17 to research implementation of these BMPs?

18 A Would you restate the question, please.

19 Q Okay. To the best of your knowledge

20 does the League have a program, of one sort or

21 another, that is researching the implementation

22 of these BMPs now?

23 A You referring specifically to the BMPs

24 in this document?

25 Q I'm referring to Dr. Dunckleman's

Page 66

1 subgroup in the League, that staff subgroup,

2 are they researching or monitoring the

3 researching, the implementation of these BMPs?

4 A No.

5 Q Are you familiar with any risk involved

6 in elevating water tables?

7 A I'm sorry?

8 Q Are you familiar with any risk involved

9 with elevating water tables?

10 A Yes.

11 Q To what extent are you familiar with

12 that?

13 A I know the crops, specifically sugar

14 cane, are sensitive to water table levels.

15 Q Do you know at what level?

16 A No.

17 Q Have you done any research in that area

18 yourself?

19 A No.

20 Q Have you read any reports or studies?

21 A I seen one study that's conducted by

22 the University of Florida at the Belle Glade

23 station that had to do with elevated water

24 tables and sugar cane, on one variety of sugar

25 cane.

Page 67

1 Q That's the extent of your familiarity

2 with that?

3 A As far as the research is concerned.

4 Q What is the outcome of that study, to

5 the best of your knowledge?

6 A As I recall, the research when I saw

7 it, it was not complete, but the stand of this

8 particular variety of sugar cane was reduced

9 substantially. I don't recall what the exact

10 percentage was.

11 Q Do you know what the name of that

12 report is?

13 A I don't recall the name.

14 Q Do you know who did that report?

15 A Dr. Deren.

16 Q D-e-r-e-n; is that right?

17 A I believe that's correct.

18 Q Does the League, to the best of your

19 knowledge, have any other documents specifying

20 opinions concerning particular BMPs?

21 A I think we have probably turned over

22 some documents to you today that talk about the

23 BMP work conducted by the University of

24 Florida.

25 Q Other than the University of Florida

Page 68

1 document, do we have any other contracts out

2 regarding the effect of BMPs on crops or

3 farming practices?

4 A Not that I am aware of.

5 Q No present studies going on?

6 A No.

7 Q If there were present studies going on

8 by members of the League, would you know about

9 those?

10 A Not specifically, no.

11 Q Do you know about any present studies

12 being conducted by members of the League on

13 crops or farming practices that are a result of

14 particular BMPs?

15 A Again, I know that U.S. Sugar is

16 looking at some of the on-farm practices and

17 their impacts, I don't know the specifics.

18 Q Other than U.S. Sugar, is there anybody

19 else that is doing that work that you know of?

20 A I don't know specifically, myself, of

21 other companies that are actually doing work

22 for research purposes.

23 Q Okay. Let me ask you if you have

24 knowledge of these statements: Growers have

25 tried to maintain water table elevation at

Page 69

1 somewhere between two and three feet. Do you

2 have any knowledge of that?

3 MR. EARL: You talking about the

4 statement, who made it?

5 MR. ROSENBERG: I'm talking about

6 whether he has any knowledge whether there

7 is any studies or literature or terms, of

8 his common knowledge, whether growers have

9 tried to maintain water table elevation at

10 somewhere between two and three feet.

11 MR. EARL: So I understand --

12 MR. ROSENBERG: Let me withdraw the

13 question, I will make it an easier

14 question.

15 Okay.

16 Q (By Mr. Rosenberg) Do you personally

17 have knowledge of where growers generally try

18 to maintain their water level elevations?

19 A Not specific information, no.

20 Q Okay. Do you have specific knowledge

21 regarding whether the IFAS BMPs are calling for

22 an adjustment of this elevated water table or

23 this water table elevation?

24 A It's my understanding that IFAS BMPs

25 call for a change in the way the water is

Page 70

1 managed on the farm.

2 Q You have personal knowledge regarding

3 whether there will be a degree of damage to

4 sugar crops if the water table is elevated?

5 A If the water table is elevated to a

6 level?

7 Q Of the IFAS proposed BMPs?

8 A Not specifically, no.

9 Q Is there anybody at the League who

10 would have that knowledge, on your staff,

11 regarding that area?

12 A Well, generally speaking, John

13 Dunckleman would be familiar with that.

14 Q Would it be fair to say that

15 Dr. Dunckleman is the person on staff at the

16 League who would be familiar with the water

17 table elevation and the proposed IFAS water

18 table elevation, and the effect of water table

19 change in elevations? Would he be the person

20 in the League that would know about that?

21 A He would be the person, if anybody

22 would know about it.

23 Q Okay.

24 Would it be fair to say that you

25 personally have not been involved in any

Page 71

1 research with regard to the effectiveness of

2 BMPs to reduce phosphorus?

3 A I have conducted no research on BMPs.

4 Q Would it be fair to say your knowledge

5 here has simply been gained by reading studies

6 or being informed by people on your staff?

7 A My knowledge about BMPs is primarily

8 related to reading various pieces of research,

9 speaking with various IFAS researchers, and

10 also upon observation.

11 Q Can I have you turn to pages 113 and

12 114. The bottom paragraph of page 113 is

13 entitled BMPs and Associated P Reduction

14 Ranges. Am I correct?

15 A Bottom of page 113?

16 Q Do you have that?

17 A Okay. I'm sorry. Yes.

18 Q And following that are nine indented

19 paragraphs; am I right?

20 A Yes, sir.

21 Q And those nine indented paragraphs are

22 the IFAS BMPs, are they not?

23 A I'm not certain if all of these BMPs

24 came directly from IFAS.

25 Q The first BMP here is: Calibrated soil

Page 72

1 test recommendations. What is your

2 understanding of what that is?

3 A I don't know exactly what a calibrated

4 soil test is.

5 Q It goes on to say that these

6 recommendations could reduce phosphorus losses

7 from zero dash 25 and zero dash ten percent for

8 vegetables and sugar cane respectively.

9 What is your understanding of what that

10 says?

11 A What do the percentages say?

12 Q Right. Do you have any basis of

13 knowing whether that would be correct or

14 incorrect?

15 A I don't know whether that is correct or

16 incorrect.

17 Q So it would be fair to say that you are

18 not familiar with calibrated soil tests?

19 A I don't know what a calibrated soil

20 test is specifically.

21 Q Let's look at number 2 here: Banding

22 fertilizer. Are you familiar with what that

23 is?

24 A Yes, I'm somewhat familiar with that

25 practice.

Page 73

1 Q What is that?

2 A Banding fertilizer is where you set up

3 an operation where the fertilizer is put

4 directly where the root system of the plant

5 will be as opposed to the entire furrow.

6 Q As opposed to broadcasting?

7 A As opposed to covering the entire field

8 area.

9 Q The sentence goes on to say that

10 banding fertilizer for vegetable production

11 instead of broadcasting it could reduce P

12 losses from 10 to 40 percent. Do you know

13 anything about that?

14 A No. I know what I see here and read.

15 Q Do you have any reason to believe

16 that's incorrect or correct, or any basis?

17 A I don't have anything personally to

18 base a decision on whether that is accurate or

19 not.

20 Q Do you know whether that is working for

21 vegetable interests? Do you have any knowledge

22 whether banding fertilizer is something that

23 the vegetable people are doing and whether that

24 is working?

25 A No.

Page 74

1 Q What is the standard practice in the

2 sugar cane industry for applying fertilizer, is

3 it broadcasting?

4 A Today the majority of the fertilizer is

5 applied directly over the row, which would be

6 banding, as this terminology is used.

7 Q So, would it be fair to say that this

8 BMP of banding fertilizer is something that is

9 being done in the sugar industry today?

10 A That's correct.

11 Q Do you have any knowledge of whether

12 this process of banding is cost beneficial as

13 opposed to other applications of fertilizer?

14 A Would you restate that.

15 Q Do you know whether banding is cost

16 beneficial to the farmers, that is; do they

17 save money by doing banding as opposed to

18 broadcasting or using any other method of

19 applying fertilizer?

20 A I don't know whether they save any

21 money or not, no.

22 Q Is there any report on that anyplace,

23 do you know?

24 A I'm not aware of any report.

25 Q Do you know whether by engaging in

Page 75

1 banding that would require the purchase of less

2 fertilizer?

3 A Banding should require less fertilizer,

4 that's accurate.

5 Q Number 3, the next BMP here is:

6 Prevention fertilizer spills. Do you know what

7 that BMP is about?

8 A I think that one is fairly

9 self-explanatory. It means a preventive

10 program making people who apply the fertilizer

11 aware of the consequences of an accidental

12 fertilizer spill, and to take extensive efforts

13 to prevent that from happening.

14 Q It goes on to say that that could

15 reduce phosphorus losses from zero to 15

16 percent. Do you agree with that figure? Do

17 you have any basis for that?

18 A I don't have any scientific evidence of

19 whether that percentage is correct.

20 Q Do you know if anybody at the League or

21 any studies have been conducted that would

22 speak to that?

23 A I know IFAS has done work on this, on

24 this particular issue.

25 Q Other than IFAS, does the League have

Page 76

1 any reports or information that it has been

2 able to substantiate that or otherwise?

3 A Not that I'm aware of.

4 Q The fourth BMP is: Minimizing water

5 table fluctuations in vegetable and sugar cane

6 fields could reduce phosphorus losses from zero

7 to 50 percent. What is your understanding of

8 what that BMP is talking about?

9 A They are talking there about reducing

10 phosphorus discharges by changing the way you

11 manage the water on a vegetable or sugar cane

12 farm.

13 Q Do you have any basis for speaking to

14 the point that they make here, that that could

15 reduce phosphorus losses from zero to 50

16 percent?

17 A No.

18 Q Do you know if the League has any

19 studies regarding that or any information has

20 been received by the League regarding that?

21 A Again, we have received information

22 from IFAS, the University of Florida, about the

23 potential phosphorus reduction of the water

24 table and managements.

25 Q Is BMP number 4 something that the

Page 77

1 growers are doing now?

2 A Growers now are more closely managing

3 water on their farm. I'm not certain that's

4 the same thing as managing water table

5 fluctuations.

6 Q When you say they are managing water,

7 what are they doing now that they had not done

8 before?

9 A They pump water off of their farms,

10 generally speaking, less often.

11 Q Does that mean that they permitted a

12 higher water table to exist?

13 A It could mean that. It also could mean

14 that the water in the canals, someplace on

15 their farm, are kept deeper than they would

16 have been previous to implementation of this

17 stricter water management regime.

18 Q Do you know if that's happened in the

19 canals, if that's the situation in the canals?

20 A Do I know if that's happening now?

21 Q Yes.

22 A I know that the majority of the growers

23 are pumping water less often.

24 Q Would it be fair to say that they are

25 to one degree or another then utilizing BMP 4

Page 78

1 now?

2 A Again, as I said earlier, I don't know

3 that the BMP that they are following is simply

4 a water table fluctuation BMP. The BMP that

5 they are following has more to do with how

6 often that they turn their pumps on to pump

7 water off of their property.

8 Q Who would know about that? Who would

9 be the person with the most knowledge about

10 that?

11 A At the League?

12 Q Well, at the League or regarding

13 members of the League?

14 A At the League it would be Dr. John

15 Dunckleman.

16 Q Regarding members of the league, what

17 members of the League would have the best

18 knowledge of what pumping practices they are

19 undertaking?

20 A U.S. Sugar has done a fair amount of

21 analysis of pumping practices.

22 Q Is there anybody at U.S. Sugar who

23 would be the key person on that, that you know

24 of?

25 A I'm not sure who the key individual

Page 79

1 would be there.

2 Q Or the most knowledgeable person at

3 U.S. Sugar would be on that?

4 A I don't know who that would be.

5 Q Do you know anybody at U.S. Sugar who

6 is familiar with that, whether or not they are

7 the most knowledgeable, familiar with the

8 pumping practices?

9 A Dr. Hank Andries -- A-n-d-r-i-e-s, I

10 believe is how it's spelled. -- at U.S. Sugar.

11 Q Do you have any view, from what you

12 have read, from your understanding, whether BMP

13 number 4 is the most effective BMP to reduce

14 phosphorus discharges?

15 MR. EARL: Objection. Calls for an

16 opinion.

17 Q (By Mr. Rosenberg) I'm saying do you

18 have any understanding whether BMP number 4 is

19 the most effective?

20 A I don't know.

21 Q The next BMP, number 5, is retention of

22 on-farm drainage. What's that about?

23 A This one is speaking about simply

24 retaining water on a farm somewhere as opposed

25 to pumping it off.

Page 80

1 Q Is that like flooding the fallow

2 fields?

3 A It could be.

4 Q Is it on-farm movement of water? Is

5 that your understanding of this?

6 A I'm sorry?

7 Q Is it just an on-farm movement of the

8 water from one spot on the farm to another?

9 A Yes.

10 Q Is that being done now?

11 A Yes.

12 Q Do you have any basis or understanding

13 to know that that could reduce phosphorus

14 losses from 15 to 60 percent?

15 A No.

16 Q Who would know that at the League, is

17 that John Dunckleman, again?

18 A I don't think Dr. Dunckleman could tell

19 you whether the 15 to 60 percent is accurate.

20 Q Is there anybody at the League who

21 could speak to the effectiveness of BMP number

22 5 here?

23 A In terms of reducing effectiveness of

24 reducing phosphorus? I don't think so.

25 Q Do you know anyone who is a member of

Page 81

1 the League who could speak to that? Is that

2 Hank Andries, again?

3 A I think U.S. Sugar could speak to some

4 of their own experience in terms of how this

5 might reduce phosphorus.

6 Q Other than U.S. Sugar, do you know of

7 anyone else that could speak to the -- whether

8 this BMP could reduce phosphorus losses from 15

9 to 60 percent?

10 A No, I don't.

11 Q Be fair to say, then, the League has no

12 reports or studies regarding BMP number 5?

13 A I'm sorry?

14 Q Does the League have any reports or

15 studies regarding BMP number 5?

16 A We have an IFAS report.

17 Q Okay. Other than the IFAS report?

18 A Not that I am aware of.

19 Q Same thing with number 4, other than

20 the IFAS report, you have no reports or

21 studies?

22 A That's correct.

23 Q Turning to page 114. Item 6, that's

24 retention of vegetables field drainage water in

25 sugar cane or fallow lands. What's that about?

Page 82

1 A This is where they are talking about

2 taking water that would normally be pumped off

3 of a vegetable field into the canals of the

4 District and simply pumping over onto a sugar

5 cane field that might at that particular time

6 need irrigation water.

7 Q Is that practice being done now?

8 A I don't know if anybody is specifically

9 doing that today or not.

10 Q Is there anybody at the League who

11 would know that?

12 A I don't know.

13 Q Is that something that John Dunckleman

14 would know about?

15 A I don't know if he would know the

16 answer to that or not.

17 Q Is that something that Hank Andries

18 would know about?

19 A I don't know.

20 Q U.S. Sugar has both vegetable fields

21 and sugar cane fields, does it not?

22 A That's correct.

23 Q Are you aware whether U.S. Sugar is

24 engaging in this practice?

25 A No, I am not.

Page 83

1 Q Who would be the person at U.S. Sugar

2 who would know that?

3 A Dr. Andries, probably.

4 Q The seventh BMP refers to aquatic cover

5 crop for off-season. What does that BMP

6 involve?

7 A They are talking about taking fields

8 that would have had sugar cane removed from

9 them in the rotation that would have normally

10 stood fallow over the summer, and planting

11 crops, in this case, specifically, rice.

12 Q Is that being done now?

13 A Yes, to some extent.

14 Q And do you know what the experience of

15 the farmers who have done this BMP, what their

16 experience is regarding rice, whether it's

17 something that has been beneficial or not

18 beneficial?

19 A In what regard?

20 Q Has it cost them money? Have they lost

21 money?

22 A I can't tell you the answer to that.

23 Q Do you know whether it's removed

24 phosphorus or reduced phosphorus losses, as

25 stated in the SWIM Plan, from 5 to 20 percent?

Page 84

1 A No, I don't.

2 Q Do you know whether putting a rice crop

3 in has any other beneficial effects; for

4 example, to the soil?

5 A The -- I know the initial plantings of

6 rice in the Everglades Agricultural Area was a

7 cultural practice to put a beneficial cover

8 crop on land that would have normally been left

9 fallow.

10 Q When you say a beneficial benefit, what

11 are you --

12 A You're putting organic matter back

13 there from the rice crop, this is organic soil,

14 so you're cutting down on the oxidation of soil

15 or subsidence.

16 Q Do you have any studies whether the

17 soil for the next sugar crop after the aquatic

18 crop has been more productive than not engaging

19 in this practice?

20 A No, I don't.

21 Q Do you know anybody who would know

22 that?

23 A No, I don't.

24 Q Would that be something that

25 Dr. Dunckleman would know about?

Page 85

1 A I can't answer that.

2 Q Number 8 refers to on-farm retention

3 ponds utilized to store excess rainfall for

4 later use as irrigation water. What's that

5 about?

6 A Building ponds on a piece of property

7 and pumping the stormwater into those ponds as

8 opposed to pumping it off the farm.

9 Q Is that a practice that is being done

10 now?

11 A I don't know of any retention ponds

12 inside the Everglades Agricultural Area.

13 Q Do you know why they are not doing that

14 now?

15 A No, I don't.

16 Q Do you know whether that would be an

17 expensive -- or what the expense would be if

18 this BMP were put in practice?

19 A No.

20 Q What the cost would be?

21 A No.

22 Q Have there been any studies of that,

23 that you know of?

24 A I can't recall specifics. I know there

25 have been discussions about the cost of

Page 86

1 retention ponds.

2 Q When were those discussions and who was

3 involved?

4 A Most of the discussions that I recall

5 had to do with discussions over using retention

6 ponds as a part of the Lake Okeechobee SWIM

7 Plan.

8 Q Not as far as the EAA SWIM Plan is

9 concerned?

10 A We have discussed them, yes, in the

11 League.

12 Q When was the last discussion, that you

13 were a party to, held on that subject matter?

14 A I don't recall.

15 Q What was the outcome of that

16 discussion?

17 A Generally speaking, most of the company

18 or farm people who were there, concluded that

19 the expenditure was cost prohibitive.

20 Q Who was at that meeting? Was U.S.

21 Sugar at that meeting?

22 A I don't know specifically who was

23 there. I do recall that U.S. Sugar had some

24 people at the meeting, but I couldn't give you

25 specific individuals.

Page 87

1 Q When you say -- when you talk about

2 costs, was that true of bigger farms as well as

3 smaller farms? In other words, is that

4 something that a bigger farm could afford,

5 something that U.S. Sugar owns or Flo-Sun,

6 rather than a smaller farm or --

7 MR. EARL: Objection. Compound.

8 Q (By Mr. Rosenberg) Regarding the

9 objection to costs, is it your understanding

10 that the cost problem there is something that

11 would affect bigger farmers or smaller farmers?

12 A I don't know.

13 Q Was there any indication by the bigger

14 growers that they could implement this,

15 retention ponds?

16 A As I recall, all of the people who were

17 involved in the discussion thought this

18 practice was objectionable because of cost. I

19 don't remember any delineation based on the

20 size of the farm.

21 Q Other than that meeting are you

22 familiar with any study on that?

23 A I don't recall. We never actually did

24 any studies on retention ponds.

25 Q Do you know if Hutcheon Engineers have

Page 88

1 done any studies on retention ponds?

2 A I believe Hutcheon Engineers might have

3 looked at retention ponds as a result of work

4 we asked them to do in terms of alternatives.

5 Q Have they made a report back or a study

6 back to the League on retention ponds?

7 A I don't believe we have received any

8 official or written report on stormwater --

9 excuse me, retention ponds. Not that I recall.

10 Q When did Hutcheon's, if they did the

11 study, when did they do it, to the best of your

12 information?

13 A I don't recall.

14 Q And you don't recall what, if any,

15 conclusions they reached? Would that be fair

16 to say?

17 A You mean Hutcheon?

18 Q On retention ponds. Right.

19 A I don't recall in terms of cost or size

20 or this kind of thing, any specifics.

21 Q BMP number 9 is coordinated farm

22 cropping patterns. What is that?

23 A I don't really know, to be honest with

24 you. That one is a little general, a little

25 broad.

Page 89

1 Q Two paragraphs below that it says:

2 Based on the above individual BMP effectiveness

3 ranges, Izuno and Bottcher estimated that the

4 overall range of P reduction that could be

5 accomplished for the EAA basin was between 20

6 to 60 percent. Do you have any reason to

7 believe that that figure is accurate or

8 inaccurate?

9 A I couldn't tell you what the accuracy

10 of that statement is.

11 Q Has the League undertaken any studies

12 whether that figure is accurate or inaccurate?

13 A No.

14 Q Would John Dunckleman be able to speak

15 to that issue?

16 A I don't know if he could or not.

17 Q Do you know whether any members of the

18 league would be able to speak to that issue?

19 A No, I don't.

20 Q Do you know whether or not just by

21 implementing what BMPs have been implemented,

22 whether they have exceeded 20 percent?

23 A No, I don't.

24 Q Who would know that?

25 A I don't know.

Page 90

1 Q Do you know what the goal of the

2 regulatory program is in terms of reduction of

3 phosphorus from BMPs? Percentage goal?

4 A Regulatory program?

5 Q Of the BMPs. Do you know what

6 percentage the regulatory program has set as a

7 goal for the BMPs to reduce phosphorus?

8 A 25 percent reduction, I believe.

9 Q Do you know whether the BMPs that are

10 being done now by your members are exceeding 25

11 percent?

12 A I don't know that.

13 Q Would anybody that you know of of your

14 members know that?

15 A I don't know of anybody.

16 MR. EARL: BMPs are not a specified

17 area of this witness' testimony, you are

18 welcome to use additional time on it, but

19 it's not his area of testimony.

20 Q (By Mr. Rosenberg) Is it your

21 understanding regarding the rule that's been

22 passed by the board to implement the BMPs that

23 BMPs are implemented on an individual farm

24 basis?

25 A Would you restate that?

Page 91

1 Q Is it your understanding that under the

2 rule, BMPs are implemented on an individual

3 farm basis?

4 A I don't recall that there is a specific

5 provision that says it has to be for every

6 individual farm.

7 Q Is it your understanding that regarding

8 the nine BMPs that we just talked about, that

9 farmers aren't required to implement each and

10 every one of them, they can pick and choose and

11 mix and match as would best suit them?

12 A It's my understanding through each

13 farm, through the permit, will be required to

14 reduce phosphorus by 25 percent.

15 Q You also understand that the rule

16 permits the farmers to use alternatives to the

17 nine specified BMPs?

18 A I don't -- I don't recall if it says

19 specifically that they can use alternatives.

20 MR. ROSENBERG: Let me hand out Exhibit

21 3 to you.

22 (Whereupon, Government's Exhibit No. 3

23 for Identification was marked by the

24 reporter.)

25 Q (By Mr. Rosenberg) Could I ask you on

Page 92

1 Exhibit 3 to refer to 40E-63 sub 101

2 subparagraph 4 on the second page.

3 A Say again.

4 Q On the second page would you turn to

5 subparagraph 4?

6 A Okay.

7 Q I think I have -- may have underscored

8 it somehow there. Could I have you read that

9 for a second.

10 Have you seen this rule before?

11 A I have seen parts of it.

12 Q Okay. My question is fairly easy. The

13 rule contemplates alternatives. Alternative

14 BMPs and not just the IFAS BMPs. Says here:

15 The District shall consider alternatives to the

16 requirements specified in this Chapter. Are

17 you familiar with this document, a Draft

18 Technical Document In Support of Chapter

19 40E-63? Have you ever seen that before?

20 (Whereupon, Government's Exhibit No. 4

21 for Identification was marked by the

22 reporter.)

23 MR. EARL: You're representing this --

24 Counsel, this consists of only 98 pages.

25 MR. ROSENBERG: Document I'm handing

Page 93

1 out has 98 pages. I'm asking him if he's

2 ever seen the document, and I'm just simply

3 going to refer him to pages 57 through 59.

4 So let me ask him has he ever --

5 MR. EARL: Just a second, counsel, I'm

6 looking.

7 I note handwritten delineations on

8 here, I presume these are yours, page 17?

9 MR. ROSENBERG: I hope there are no

10 handwritten --

11 MR. EARL: Where it's circled.

12 MR. ROSENBERG: I -- those -- those can

13 be disregarded -- or somebody in my office --

14 I don't intend to ask any questions.

15 MR. EARL: Page 18.

16 MR. ROSENBERG: Those are insignificant

17 as far as this witness is concerned. I

18 intend to ask no questions regarding

19 anything other than pages 57 through 59.

20 MR. EARL: Page 81.

21 MR. ROSENBERG: You can delete those

22 pages, if you wish, and pull them out.

23 MR. EARL: I'm just noting changes to

24 the document, that's all.

25 MR. ROSENBERG: I don't contend, other

Page 94

1 than pages 57 through 59, are anything that

2 I'm going to ask any questions about or are

3 relevant to the examination of this

4 witness.

5 MR. EARL: Take your time and do what

6 you need to do to familiarize yourself with

7 that document.

8 Q (By Mr. Rosenberg) Have you ever seen

9 this document before?

10 A I don't recall if I have seen this

11 specific document or not.

12 Q Would you look at pages 57 through 59.

13 Are those the same BMPs that I have just

14 discussed with you, at the bottom of 57 through

15 58?

16 A Well, I don't know if it's the same

17 word-for-word, they look like the same ones.

18 Q Are you familiar with what's known as

19 the early baseline option? Are you familiar

20 with that term?

21 A Only vaguely.

22 Q What does it mean to you?

23 A I really don't know.

24 Q Do you know how it works?

25 A No.

Page 95

1 Q Has anyone at the League or any

2 contract that the League has let out worked up

3 any computer program or model or computer

4 analysis regarding the BMPs on pages 57 and 58?

5 A Would you restate your question.

6 Q Has anyone at the League worked up any

7 computer program or model or computer analysis

8 of BMPs, as listed on pages 57 or 58?

9 MR. EARL: Answer with regard to

10 anything you know that is not being done

11 pursuant to direction of counsel.

12 A (By the Witness) I don't know of

13 anything.

14 Q Is there any contract or any study

15 going on regarding the effects of these nine

16 BMPs on reducing phosphorus or effects on crop

17 yield?

18 A Again, repeat the question.

19 Q Is there any study going on regarding

20 these BMPs regarding their effect on reducing

21 phosphorus or crop yield?

22 A Not that I am aware of.

23 Q No study out by the League on that?

24 A No.

25 Q Do you know if any members of the

Page 96

1 League are doing those sort of studies or

2 putting together any computer programs or

3 models on that?

4 A I don't know the answer to that

5 question.

6 Q Is there any study that has been let

7 out by the League or any undertaking concerning

8 the costs of the BMPs or the cost of

9 implementing the BMPs?

10 A I don't recall anything on that.

11 Q On page 58, the last paragraph talks

12 about percentages. Are you familiar, to any

13 extent, with the proposed percentage reduction

14 figures either by Bottcher and Izuno, or

15 anybody at the League, regarding the BMPs?

16 A That's a broad question.

17 Q Bottcher and Izuno -- I think it's the

18 third sentence, says: Though Izuno and

19 Bottcher believe 40 percent or even higher P

20 reductions might be reasonable accomplished by

21 BMPs, the assurances based on currently

22 available information that these levels could

23 be accomplished at a marginal cost less that

24 those for STAs could not be provided.

25 Do you know whether it's possible, by

Page 97

1 using these BMPs, to achieve a 40 percent or

2 higher P reduction?

3 MR. EARL: Objection. Calls for an

4 opinion.

5 Q (By Mr. Rosenberg) Do you have an

6 understanding whether using these BMPs could

7 cause a 40 percent reduction?

8 A The only thing I know of about the

9 effectiveness of these BMPs is what Dr. Izuno

10 and Dr. Bottcher have said to us, or to me, and

11 what they have stated in various meetings and

12 presentations.

13 Q Do you know anything about BMPs that

14 your members would institute that would cause a

15 60 percent reduction and therefore reduce the

16 need for STAs?

17 A Well, the League presented alternative

18 plans that called for substantial reductions, I

19 don't recall the exact percentages.

20 Q And you are familiar with that plan?

21 A I'm familiar, generally speaking, with

22 that plan, yes.

23 Q Do you know and did that plan

24 contemplate using BMPs?

25 A Yes.

Page 98

1 Q And what percentage reduction through

2 that plan's BMPs could be -- do you think could

3 be gained?

4 A I don't think we presented that, as I

5 recall, in terms of percentages. I don't

6 recall a percentage, quite frankly.

7 Q Do you know if on-farm retention ponds

8 are being implemented in the citrus industry?

9 A Yes.

10 Q And do you know to what extent they are

11 being implemented?

12 A No.

13 Q Do you know what their experience has

14 been with that?

15 A No.

16 Q Do you know why they are doing that?

17 A No.

18 Q Some of your members are also in the

19 citrus industry, are they not?

20 A Yes.

21 Q Which ones?

22 A I don't know all the ones that are.

23 Q Which ones do you know of?

24 A I know U.S. Sugar is.

25 Q Do you know if they are using retention

Page 99

1 ponds in their citrus property?

2 A On some of their property I'm aware

3 that they are.

4 Q Is there any study that the League has

5 undertaken or is currently undertaking

6 regarding retention ponds in the citrus area or

7 other areas nearby the EAA?

8 A No.

9 Q You don't know?

10 A I don't know of any, no.

11 Q Is the League study data collected

12 through the citrus growers?

13 A Would you repeat that.

14 Q Does the League study any data

15 collected through the citrus growers regarding

16 their reduction of fertilizing?

17 A Not that I'm aware of, no.

18 Q Are you aware of whether any master

19 permits have been applied for under the rule?

20 A Under the Everglades?

21 Q Under rule 40E-63, is there an

22 application for a master permit?

23 A I'm not aware of any.

24 Q Is the League in any way involved, or

25 do you anticipate that the League will be

Page 100

1 involved in a permit processing on advising

2 growers on how they should write their permits

3 or applications for permits?

4 A The League and/or either consultants

5 may offer advice, I don't expect that we would

6 be involved in writing permits with that kind

7 of detail.

8 Q You would advise growers -- you would

9 anticipate that the League would advise growers

10 on how they should prepare their applications?

11 A It's possible, if we were asked

12 specific questions.

13 Q Is the League involved in that now?

14 A The League, at least during my tenure,

15 has never actually been involved specifically

16 in helping individual growers pursuing permits.

17 Q Do you have any general program

18 regarding permits that growers can tap into?

19 Is that an ongoing program or study at the

20 League now?

21 A No.

22 Q Do you anticipate that that will

23 happen, that you will have some staff people at

24 the League assigned to helping growers or

25 giving them a fund of information regarding

Page 101

1 permits?

2 A I don't have any plans to do that

3 today.

4 MR. ROSENBERG: I'm at a point where I

5 am going on to another area. Do you want a

6 break for lunch? Would you rather take a

7 break now, I would, and come back at one?

8 MR. EARL: You mean a lunch break?

9 I would rather go on so we don't have

10 such a long afternoon session.

11 MR. ROSENBERG: All right. All right.

12 MR. EARL: Want to take a short break

13 now?

14 MR. ROSENBERG: Okay.

15 (Whereupon, a recess was taken.)

16 (Whereupon, Government's Exhibit No. 5

17 for Identification was marked by the

18 reporter.)

19 Q (By Mr. Rosenberg) Sir, I have handed

20 you a copy of Exhibit 5, which is entitled

21 Strategy to Revitalize Everglades and Preserve

22 Farming. Are you familiar with this document?

23 A Yes, I'm familiar with this document.

24 Q Do you recall when this document was

25 presented to the South Florida Water Management

Page 102

1 District?

2 A Yes.

3 Q Were you there?

4 A Yes.

5 Q Did you have any involvemen