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