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 involvement in

6 preparing this document for that presentation?

7 A Yes.

8 Q What was that involvement?

9 A Primarily to listen to the discussions

10 that surrounded the preparation of this

11 proposed alternative strategy, and I was also

12 involved in the very last minute discussions in

13 terms of presentation, how to present it.

14 Q Can I assume from that that there was a

15 pre-presentation of some sort made to you and

16 maybe others?

17 A Yes.

18 Q Were you asked to comment on it at that

19 time?

20 A Yes.

21 Q Did you have any substantive input into

22 the contents of the program or the

23 presentation?

24 A What are you referring to as

25 substantive?

Page 103

1 Q Did you tell them something ought to be

2 changed or ought to be reflected a certain way

3 or ought to be presented a certain way?

4 A I don't recall any specific input about

5 changes.

6 Q How many pre-presentation meetings were

7 you at regarding this?

8 A I don't recall.

9 Q Was it more than four?

10 A Like I said, I don't recall.

11 Q When you went to these presentations

12 who generally attended?

13 A I don't recall the exact people who

14 were there.

15 Q Was Don Carson there?

16 A I recall Don being at some of the

17 meetings.

18 Q Was Bob Buker there?

19 A Yes, I recall Bob Buker being there.

20 Q Was John Andries?

21 A At some of the meetings.

22 Q Was John Dunckleman there?

23 A Again, at some of the meetings.

24 Q Do you know how long it took from the

25 starting point of putting the strategy together

Page 104

1 until it was finally presented? How long a

2 term of time that was from the inception of the

3 idea to the final presentation to the board?

4 A I don't recall when the inception of

5 the idea was.

6 Q This is a Florida Sugar Cane League

7 program, isn't it?

8 A That's correct.

9 Q That program would have been started

10 under your stewardship, would it not?

11 A Not necessarily.

12 Q Would you have been told that the

13 program was starting?

14 A Yes.

15 Q Okay. Were you told that the program

16 was starting?

17 A You have to understand we have been

18 looking at alternatives for years. This

19 alternative means of dealing with stormwater is

20 something that the Florida Sugar Cane League

21 has looked at for a long time and discussed.

22 Q If you have been looking at it for

23 years, you have studies and memoranda at the

24 League regarding what alternatives you have

25 been looking at?

Page 105

1 A I didn't say that. It's something that

2 we have been discussing for a long time.

3 Q Do you have memoranda regarding those

4 discussions at the League?

5 A I don't recall any specific memorandum,

6 no.

7 Q Do you recall when the idea was first

8 presented to you to make this presentation?

9 A I don't recall when we first had a

10 discussion about making this particular

11 presentation.

12 Q Do you recall how long it took to put

13 this thing together in the polished form it's

14 in?

15 A No, I don't.

16 Q What was the purpose of having the

17 presentations given in-house? What was the

18 purpose of these pre-presentations to you and

19 Mr. Andries, and Mr. John Dunckleman and

20 others?

21 A I'm not sure presentation was accurate.

22 As best we could --

23 Q And did you discuss the ideas amongst

24 yourselves that were being presented in these

25 presentations?

Page 106

1 A Well, those who were there that had

2 some understanding of some of these issues did.

3 I'm not an expert on any of these issues, so I

4 certainly didn't participate in that part of

5 the discussions.

6 Q Were there questions at these

7 presentations regarding evidence and research

8 that backed up these ideas or backed up

9 strategies?

10 A Yes.

11 Q Did you participate in these

12 discussions?

13 A Well, if you mean was I there, yes, I

14 was there.

15 Q It was your goal and you wanted it to

16 be presented as something that was well thought

17 out and supportable, did you not?

18 A We had consultants and other people who

19 had technical expertise that looked at the

20 supportability of this. My primary reason for

21 being there was to make sure that the

22 presentation flowed well and was understandable

23 to a prospective audience.

24 Q Who were the these consultants?

25 A Hutcheon Engineers were the primary

Page 107

1 consultants.

2 Q Any other consultants other than

3 Hutcheons?

4 A I don't recall any other consultants

5 being involved in this.

6 Q What are the names of the people from

7 Hutcheon who were there?

8 A As I recall, Dave Stuart, an engineer

9 with Hutcheon's Engineering, was there.

10 I don't recall. There may have been

11 some others, but I don't recall who they were.

12 Q Were there any notes or records made of

13 these pre-presentation meetings?

14 A I don't recall any notes or records of

15 those meetings, no.

16 Q Was there anybody there, Dr. Dunckleman

17 or you, that was making notes as to, for

18 example, maybe we better look into this or

19 maybe we better check that out?

20 A You need to restate your question.

21 Q Was there anybody producing a checklist

22 of items there to be further checked out or to

23 be further researched?

24 A I don't recall anybody doing a specific

25 checklist, no.

Page 108

1 Q Did anybody circulate around any memos

2 after these meetings regarding loose ends, for

3 example?

4 A I don't recall any specific memos.

5 Q Would it be fair to say that the ideas

6 that are expressed in this plan are what the

7 League determined after studying all of the

8 alternatives that were presented to them?

9 A What this plan is was an attempt by the

10 League to offer what they thought was a better

11 strategy for protecting the Everglades than the

12 Everglades SWIM Plan.

13 Q Was there a contract with Hutcheon

14 Engineers for this particular plan or this

15 particular strategy?

16 A I don't recall that we had a specific

17 contract for this project.

18 Q Okay.

19 Can I have you turn to Bates page

20 0919474.

21 A This one?

22 Q Yes.

23 Do you know the date that the plan was

24 presented to the board?

25 A I don't recall the specific day.

Page 109

1 Q Under -- it says, FSCL strategies --

2 Florida Sugar Cane League Strategies -- that

3 says the immediate 100 metric ton reduction of

4 P on-site. Am I correct?

5 A Are you asking me if that's what it

6 says on mine?

7 Q Yes.

8 A Yes.

9 Q What does that mean?

10 A It means that the League was going to

11 propose a plan that would immediately begin or

12 lead toward a 100 metric ton reduction of

13 phosphorus on-farm.

14 Q Is that in the immediate calendar year

15 after this strategy was presented to the board?

16 A I don't know that it specifically

17 referred to a calendar year or a specific time

18 period.

19 Q Well, that's my question. What was the

20 time period? It says immediate 100 metric ton

21 reduction. What is the time period for that

22 immediate 100 metric ton reduction?

23 A The League had the position that based

24 on the best information that we had seen, that

25 by implementing this plan that there would be

Page 110

1 an immediate 100 metric ton reduction.

2 Q Okay. I'm focusing on the word

3 immediate, I'm asking what does that mean.

4 Does that mean in the calendar year following

5 the presentation of the plan?

6 A It meant as soon as the plan could be

7 fully implemented.

8 Q So that might mean three years hence?

9 Is that correct?

10 A I don't know that you could speculate

11 on what it means.

12 Q All right.

13 And reference is also made to the South

14 Florida Water Management's District mandate of

15 150 metric ton P reduction at primary pumps by

16 1996. That's the first --

17 A Yes.

18 Q Is it your understanding that this 150

19 metric ton reduction represents a 25 percent

20 reduction goal?

21 A My understanding from our technical

22 people is that the District's mandate is to

23 reduce 150 metric tons of phosphorus at their

24 primary pump by 1996.

25 Q And is that -- that's the total goal?

Page 111

1 Is that --

2 A It's my understanding that's their

3 total goal at the primary pumps.

4 Q And that the League's position was that

5 a hundred metric tons of this could be reduced

6 on-site?

7 A Yes.

8 Q I ask you to turn to page 0919476. Is

9 it your understanding that the practices here

10 total 100 tons, that the 100 ton reduction that

11 you are talking about making are made through --

12 are reflected on this page and broken down?

13 A Yes.

14 Q And that of the 100 ton reduction, 58

15 tons would be reduced by pumping practices?

16 A That's correct.

17 Q Now, how do the pumping practices -- To

18 the best of your understanding how do the

19 pumping practices suggested here differ from

20 those of the IFAS report?

21 A As I indicated earlier I can't tell you

22 how they differ or in what respect they are

23 alike.

24 Q Who at the League could do that?

25 A I don't believe there is anybody on the

Page 112

1 League staff that can answer that question

2 specifically.

3 Q Who could answer that question,

4 Hutcheon Engineers?

5 A I think Hutcheon Engineers would be the

6 one that would have to answer that.

7 Q Did anyone from the District respond to

8 your presentation by asking you how this number

9 was computed? By "asking you", meaning the

10 League, how this number was computed?

11 A I'm sure they did.

12 Q Do you know whether that was responded

13 to by the League or by Hutcheon Engineers?

14 A I believe on the day of the

15 presentation or very soon thereafter the League

16 provided the backup documents to the South

17 Florida Water Management District.

18 Q Do you know whether the District ever

19 followed through regarding that backup

20 information to indicate whether it was suitable

21 or unsuitable or needed supplementation?

22 A I don't recall they ever made an out

23 and out determination that it was suitable or

24 unsuitable either one.

25 Q Did they ever get back to you after

Page 113

1 this documentation was handed you -- when I say

2 "you", I mean the League -- by saying we need

3 something more, it's not fully substantiated to

4 our liking?

5 A It's possible that they could have

6 gotten back to Hutcheon Engineers directly --

7 because we made that offer to them -- without

8 my knowledge.

9 Q Do you know if the District ever

10 accepted that figure of 58 tons as being a

11 dueable figure?

12 A Accept in what respect?

13 Q That they accepted the figure as 58

14 tons as dueable?

15 A Like the board?

16 Q The staff people there, the engineers?

17 A I don't know of anybody specifically at

18 the Water Management District that accepted or

19 rejected that number.

20 Q Do you know whether the pumping

21 practices referred to here would have any

22 affect on water supply out of the EAA?

23 A No, I don't.

24 Q On page 0919477 it's entitled Pumping

25 Practices. The first bullet says: Concept

Page 114

1 Accepted by SFWMD, EAA/EPD. What concept was

2 accepted by the District?

3 A The actual use of reducing pumping as a

4 successful means of reducing phosphorus.

5 Q That concept, but that doesn't mean

6 that the District accepted your 58 ton claim,

7 does it?

8 A It means what it says, the concept was

9 accepted by the South Florida Water Management.

10 Q The concept of pumping?

11 A The concept of pumping practices.

12 Q Now the next bullet says: Reduce

13 Drainage Pumping by 33 percent. What does that

14 mean?

15 A Reduce drainage, mainly pumping.

16 Refers again to the pumping that's necessary on

17 a sugar cane field, farm, to remove water to

18 prevent flooding.

19 Q Does that mean you are going to hold

20 back 33 percent of the water in the EAA?

21 A No, it doesn't.

22 Q The last bullet here says: Confirmed

23 by Large Scale Field Test. What field test was

24 that?

25 A This particular field test you referred

Page 115

1 to here, and I don't recall the exact location,

2 but it was a field test conducted by U.S. Sugar

3 Corporation.

4 Q Bullet above says it can be implemented

5 immediately. There's that word, "immediately".

6 What is your understanding of what that word

7 means?

8 A Means they can do it right now.

9 Q So, by the League's own statement, am I

10 correct, they could reduce 58 metric tons by

11 immediately changing their pumping practices?

12 A What this statement means is that if a

13 grower implements these pumping practice

14 changes immediately and all growers do it over

15 the entire EAA, then we believe there will be a

16 58 ton reduction, metric ton reduction.

17 Q And they can do it now?

18 A They can implement it immediately.

19 MR. EARL: Except as to legal

20 obstructions and problems caused by the

21 regulatory programs.

22 Q (By Mr. Rosenberg) They could

23 physically do it now, would that be correct?

24 A They physically have the capability of

25 changing their practices on-farm, if they were

Page 116

1 allowed to do so.

2 Q To the best of your knowledge should

3 they do that now? Are there any potential

4 negative consequences to crop yields?

5 A Well, there is always a potential when

6 you are reducing pumping.

7 Q My question is have you quantified that

8 potential?

9 A No.

10 Q Has anybody that you know of quantified

11 that potential?

12 A I don't know of anybody who has

13 quantified it, no.

14 Q Would the adverse effects, if any, of

15 these pumping practices be any different than

16 the adverse effects of the IFAS pumping

17 practices?

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

19 Q Do you know whether any entity in the

20 EAA now is engaging in the pumping practices

21 referred to here?

22 A Yes.

23 Q Who is?

24 A U.S. Sugar.

25 Q Do you know what their experience has

Page 117

1 been with that in terms of phosphorus

2 reduction?

3 A I only know what was determined by U.S.

4 Sugar in this large scale field test prior to

5 the presentation of this plan of the District.

6 Q What was that?

7 A I don't recall the percentages, but I

8 do know that information --

9 Q You know that information is existing

10 someplace?

11 A That's right.

12 Q On the next page, 0919478, there's a

13 reference to other sources. What is the

14 precise proposal regarding Bryant Sugar Mill?

15 A You are going to have to be more

16 specific.

17 Q Are you at page 0919478?

18 A Yes.

19 Q Says: "Other sources", and says

20 "Bryant Sugar Mill", the first bullet.

21 MR. EARL: Do you want to look through

22 the rest of the document?

23 Q (By Mr. Rosenberg) Let me ask one more

24 question. At page 0919476, it has other

25 sources for a strategy and has on-site load

Page 118

1 reduction of 20. So, I'm inquiring as to the

2 other sources part of the general strategy, and

3 specifically what is meant by Bryant Sugar

4 Mill, and take your time and read it, please.

5 A I believe that's covered later in the

6 presentation on page 019480, and an exact

7 breakout of what can be expected there.

8 The details about what would be done on

9 Bryant Sugar Mill, you have to talk to U.S.

10 Sugar about.

11 Q My question, what precisely is the

12 proposal that is being done at this sugar mill,

13 what are they doing to reduce these loads?

14 A U.S. Sugar proposed to make some

15 mill-site changes there that were demonstrated

16 would have a positive impact on phosphorus

17 reduction in the EAA.

18 Q Have they made -- to the best of your

19 knowledge made those changes, as of today?

20 A Yes, to the best of my knowledge that's

21 already been done.

22 Q What information is there regarding the

23 effect of those changes in terms of reducing

24 phosphorus?

25 A Again, I believe that information is on

Page 119

1 page -- in the presentation -- 0919480.

2 Q Well, this stops as of April. I'm

3 trying to get the year.

4 A I'm sorry. I'm sorry. I'm wrong.

5 This simply shows what the phosphorus discharge

6 was historically through the time that the

7 plant was running.

8 Q I'm asking you if you remember telling

9 me the Bryant Mill changes have been made,

10 whether that's been documented in terms of what

11 results occurred by virtue of the changes?

12 A I haven't seen the documentation, it's

13 my understanding there was a closed system, it

14 was developed around the Bryant Sugar Mill, and

15 that system has been closed, but U.S. Sugar

16 would have been -- obviously be the ones to

17 have now the information on the specifics.

18 Q Do you know if any neutral observer has

19 viewed this and studied this and reported on

20 it?

21 A I'm sorry?

22 Q Do you know of any neutral observer who

23 has looked at the Bryant Mill and what they

24 have done and what the results of what they

25 have done are?

Page 120

1 That's kind of -- withdraw it.

2 Is there anybody you know have who has

3 studied what happened at the Bryant Mill now

4 and can report back to us what the amount of

5 reduction has been; a neutral observer,

6 however?

7 A I don't know who has observed.

8 Q Okay. Are you familiar with any

9 evidence of this? Does U.S. Sugar have

10 evidence of that? Have they submitted a report

11 to somebody, a study?

12 A I haven't seen any report on what the

13 result was, all I know is that they have

14 assured the League that that system is a closed

15 system.

16 Q Have they put a number there regarding

17 phosphorus?

18 A The number -- that's what I was getting

19 at here, the number of tons of phosphorus would

20 then be reduced, if you closed the system

21 completely, would be a compilation of the

22 phosphorus on these charts on page 0919480.

23 Q I know that, but we now have some

24 experience with what they have done, if they

25 have done it. I'm asking from the experience

Page 121

1 we have now whether we know what that number

2 is. You may not know it.

3 A I don't know specifically what the

4 number is.

5 Q Could I have you go back to page 478?

6 MR. EARL: What is it, counsel?

7 MR. ROSENBERG: Page 478.

8 It says under other sources, fertilizer

9 plants. What is -- what is that reduction

10 about?

11 A (By the Witness) All of the projects

12 that you see listed on this sheet here under

13 "other sources", which includes fertilizer

14 plants, as we said in our presentation before

15 the District, are areas that we believe we can

16 find phosphorus reductions in. I don't recall

17 that there was a specific number at the time of

18 this presentation specifically tied to

19 fertilizer plants. We knew there was some

20 there, and we knew it was something that should

21 be looked at.

22 Q These fertilizer plants are not in the

23 EAA, am I correct?

24 A Yes, there is one, at least one that I

25 know of.

Page 122

1 Q What fertilizer plant is that?

2 A I believe it's called Clewiston

3 Fertilizer.

4 Q What steps have been taken at this

5 plant as of this date to reduce phosphorus

6 spilling or phosphorus getting away from them?

7 A I don't know the specifics as it

8 relates to that plant.

9 Q Is that -- When we talk about

10 fertilizer plants, is that the focus of this

11 bullet, that fertilizer --

12 A The reason for this bullet was to say

13 that is something that should be taken -- that

14 we should take a look at, meaning all of us

15 collectively, as another source of phosphorus

16 reduction.

17 Q My question is, and help me, I don't

18 understand what you're asking the plant to do

19 that will reduce fertilizer from -- will reduce

20 phosphorus from getting out of EAA?

21 A I don't know that we have asked a

22 specific fertilizer plant yet, okay, to do

23 specific things. At this point in time, as I

24 said earlier, we determined or believed that we

25 could get 20 tons of reduction from a

Page 123

1 combination of these sources. We weren't

2 certain that each of these sources would give a

3 reduction. Some of them we were fairly certain

4 of, some of them we weren't.

5 Q What is the other -- it says other

6 facilities. What other facilities are you

7 referring to?

8 A There were labor villages.

9 Q You still have those?

10 A Yes.

11 Q Aren't those being phased out, or are

12 they? I don't --

13 A Some of them have been closed.

14 Q Do you know how much phosphorus was

15 being generated by these labor villages?

16 A I can't tell you off the top of my

17 head.

18 Q Who would know that?

19 A I don't know who would know the

20 specific number per village.

21 Q What about urban runoff, what urban

22 areas are you talking about?

23 A Well, again, here we are talking about

24 the cities in the Everglades Agricultural Area.

25 Q How does that affect the phosphorus

Page 124

1 getting out of the EAA into the District pumps?

2 A Well, of course, the cities are located

3 in the EAA and their water ultimately ends up

4 in the works of the District, as do the

5 farmers.

6 Q Going back to page 476. A third item

7 there says: University of Florida IFAS

8 recommendation, and has 11 as the number for

9 the on-site load reduction. Who would know

10 what the formula is by which you achieved the

11 11 metric ton statement here?

12 A I don't know specifically who would

13 have this information, but it should be a part

14 of Hutcheon's preparation for this

15 presentation.

16 Q Was IFAS consulted as part of your

17 strategy presentation?

18 A I don't recall us having any specific

19 discussions with IFAS regarding this

20 presentation, we had had numerous discussions

21 with IFAS about their best management practices

22 and recommendations.

23 Q Did they attend any of these

24 pre-presentation meetings?

25 A I don't recall anybody from IFAS being

Page 125

1 there.

2 Q Would it be fair to say that the person

3 at the League or employed by the League who had

4 responsibility for the different sections of

5 the plan was Hutcheon Engineers?

6 A The actual preparation of the plan was

7 carried out by Hutcheon Engineers.

8 Q They were the coordinators, they were

9 the recipient of the information, am I correct?

10 A That's correct.

11 Q Did members of the League, as opposed

12 to members of the staff, have certain input,

13 responsibilities in this strategy? In other

14 words, did Hutcheon Engineers say I need this

15 from you, Flo-Sun, I need this from you, U.S.

16 Sugar?

17 A Individual members were responsible for

18 coming up with certain parts of this plan.

19 Q Hutcheon Engineers would know that, who

20 those people are and what their input was?

21 A I assume they would.

22 Q Was any part of this strategy or this

23 program funded by the Environmental Protection

24 District?

25 A Ask the question again.

Page 126

1 Q Was any part of the project here, the

2 strategy, funded by the Environmental

3 Protection District?

4 A Not the plan, not the actual putting

5 together, this plan was not funded by the

6 taxing district.

7 Q Were there substantive contributions

8 made by the District, not financial, but

9 substantive?

10 A The municipal deep well injections were

11 actually started by the EAA/EPD.

12 Q Maybe I better have you go back. What

13 is the EAA/EPD.

14 A That's the Everglades Agricultural Area

15 environment Protection District.

16 Q Who is in that?

17 A Well, it includes all of the growers

18 who own land inside of the Everglades

19 Agricultural Area.

20 Q And how is it funded?

21 A It's based on an assessment per acre of

22 land.

23 Q Do you know what that assessment is?

24 A I don't know what the assessment is

25 today.

Page 127

1 Q Does the assessment change from year to

2 year?

3 A I don't know that it does, I know that

4 it can change.

5 Q Everybody who owns an acre of land in

6 the EAA is assessed?

7 A As long as that land is used for

8 agricultural production.

9 Q Do you know what the authority of the

10 District is?

11 A Generally speaking, the authority of

12 the District was to conduct or to be involved

13 in research or practices that would have a

14 positive impact on the environment.

15 Q How was it created?

16 A It's created by legislative law.

17 Mandate, I guess, is the correct terminology.

18 Q Would it be fair to say then that their

19 reports are on file, have to be filed with the

20 State?

21 A Yes.

22 Q Do you know what projects they are

23 undertaking now?

24 A I know that they are currently funding

25 a fairly significant wetland research at Duke

Page 128

1 University.

2 Q Other than that are they funding

3 anything else?

4 A I am sure they are, right off the top

5 of my head I can't tell you anything, any

6 specifics.

7 Q On page 486 there's a reference to the

8 Holey Land project. What is that?

9 A As I recall in listening to this

10 presentation initially, what our consultant was

11 telling us was that the water, the way that the

12 Water Management District was already managing

13 the Holey Land, if they continued to manage it

14 that way it would take 13 metric tons of

15 phosphorus out of the water leaving the

16 Everglades.

17 Q Is the Holey Land something that can be

18 done immediately?

19 A Something that is already being done.

20 Q By the District now?

21 A By the District now.

22 Q What's your understanding as to how

23 that is working? What exactly is happening

24 there? Are there pumps at the Holey Land?

25 A There are pumps at the entrance of the

Page 129

1 Holey Land and of the -- I believe it's the

2 Miami Canal, that takes water out of the Miami

3 Canal and puts it into the Holey Land.

4 Q And you say those pumps are -- Well,

5 let me ask the question. How did you get the

6 13 for the load reduction? Is that happening

7 now, or is that about to happen?

8 A I can't give you specifics. Hutcheon

9 Engineers, I'm certain, did some calculations

10 on how much phosphorus the Holey Land would

11 remove as the water flowed through it.

12 Q They are using the Holey Land, from

13 your understanding, I take it, to act as a

14 filter?

15 A It's acting as filter as it's removing

16 phosphorus today.

17 Q Right now it's taking 13 tons out?

18 A As I recall it would take a minimum of

19 13 tons.

20 Q Maybe more?

21 A Maybe more.

22 Q Can I have you turn to page 490.

23 490 is entitled Phase II: Research and

24 Development. Am I correct?

25 A That's correct.

Page 130

1 Q These are proposals, are they not?

2 A That's correct.

3 Q And these proposals would need research

4 and study before they could be implemented; am

5 I correct?

6 A Yes.

7 Q There's a time lag, a time delay here,

8 we couldn't do these things immediately?

9 A Some could be done sooner than others.

10 Q Which ones could be done sooner than

11 others?

12 A Sediment dredging.

13 Q What is that?

14 A I don't remember the exact details, but

15 as I recall that's simple removal of sediment

16 that has settled on the bottom of the canals

17 out of the canals.

18 Q Well, why couldn't that be done

19 immediately? Why would that be a research and

20 development project as opposed to a current

21 project?

22 A Because you need to determine whether

23 or not the actual act of doing that is going to

24 reduce the phosphorus discharges. There's no

25 need going through that process if it's not

Page 131

1 going to get rid of phosphorus.

2 Q Is there research going on involved in

3 sediment removal?

4 A U.S. Sugar.

5 Q Has that been made available to the

6 League?

7 A I haven't seen any, what level of

8 phosphorus reduction has occurred as a result

9 of this sediment dredging.

10 Q So, would it be fair to say, at least

11 yourself, you, yourself, have no knowledge of

12 what time the projects would be completed as to

13 when this strategy could be implemented? You

14 don't know if it would be a year from now, two

15 years from now, three years from now?

16 A I don't know what the length of time

17 would be.

18 Q Do you know who at U.S. Sugar would

19 know that? What the status of the sediment

20 dredging research and development is?

21 A I don't know specifically who is

22 responsible for that.

23 Q Is the research on any of the projects

24 here far enough long to estimate phosphorus

25 removal effectiveness, to the best of your

Page 132

1 knowledge?

2 A To the best of my knowledge the League

3 couldn't give you a number in terms of the

4 metric tons of phosphorus that would be reduced

5 or removed, excuse me, by these projects,

6 because they are still in the research or

7 development stage.

8 Q So would the answer to my question be

9 the research in the projects here are not far

10 enough long to estimate removal effectiveness?

11 A Not far enough along to give the kinds

12 of numbers we have given on these other

13 projects.

14 Q And be able to substantiate these

15 numbers?

16 A That's correct.

17 Q The data just isn't there at this

18 point?

19 A The potential looks good.

20 MR. ROSENBERG: We are at 20 to one,

21 I'm about to enter into a new phase here,

22 want to take a break?

23 (Whereupon, an off the record

24 discussion was had.)

25 Q (By Mr. Rosenberg) Dr. William Patrick,

Page 133

1 do you know who he is?

2 A Yes.

3 Q Who is he, sir?

4 A He's a professor from Louisiana State

5 University.

6 Q Did he ever do any studies for the

7 League?

8 A Yes.

9 Q What studies did he do for the League?

10 A He conducted some analysis of sugar

11 cane leaf tissue to determine mercury content.

12 Q Is there a report on that at the

13 League?

14 A Yes, we have some information, I can't

15 remember specifically what's in it.

16 Q Regarding Dr. Patrick's studies, has he

17 done any other research regarding mercury?

18 A He is doing some other research under

19 attorney/client privilege.

20 Q Is there anybody else employed by the

21 League doing research regarding mercury?

22 A Not -- No, not that I recall.

23 Q Has there been anybody else employed by

24 the League doing research regarding mercury?

25 A No.

Page 134

1 Q Do you know if any of the members of

2 the League themselves independent of the League

3 are sponsoring research regarding mercury?

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

5 Q Do you know if there's been any

6 drilling or soil sampling by anyone in the EAA

7 as a test for mercury?

8 A No, I don't.

9 Q Let me go back to page 490 for a

10 second. It says at the bottom -- there's an

11 asterisk, "Field Testing to Begin Immediately",

12 for a number of items here.

13 Do you know if the field testing on

14 those items has started?

15 A At the time of this, the Algal Turf

16 Scrubber, and as I said earlier in my

17 statement, I believe these have been

18 discontinued, it is not practical.

19 Q Let me put the turf scrubbers aside for

20 a second. The first strategy here is limerock

21 sorption; am I correct?

22 A Yes. That's correct.

23 Q In a fairly general sense, what is that

24 about?

25 A Well, according to my limited

Page 135

1 understanding, I'm not a chemist --

2 Q I understand.

3 A -- that's an effort to use limerock's

4 natural ability to pull phosphorus out of

5 water.

6 Q Has field testing been started on that

7 process?

8 A I believe there is field testing. By

9 the way, a good portion, most of this on this

10 page has been carried out by individual members

11 of the League, not the League. I believe

12 limerock sorption is being looked at as a

13 research-type program by U.S. Sugar.

14 Q Let me back up for a second. The

15 program here was presented under the auspices

16 of the League. So when I refer to limerock

17 sorption that was something that was presented

18 at least under the auspices of the League?

19 A That's correct.

20 Q You are saying now that the League

21 itself is not supervising any limerock sorption

22 study, but, in fact, members of the League are

23 doing that; is that correct?

24 A In the initial presentation we

25 indicated that much of what had been done and

Page 136

1 would be done would be done by the individual

2 companies, and that's what's happening as we

3 speak.

4 Q What is the status of the limerock

5 sorption study, as far as you understand it?

6 A I don't know.

7 Q Who would know that?

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

9 Q The second item here is water

10 treatment. What, in general, is water

11 treatment?

12 A Water treatment here, as I recall,

13 referred to something similar to what the

14 District has had or the -- many of the

15 districts has had consultants looking at, and

16 that's using some kind of additive to the water

17 that will take out phosphorus.

18 Q Has the field testing on that been

19 started?

20 A Actually, the field testing has not

21 started yet, but we have continued to fund,

22 through grants to IFAS, dollars to narrow that

23 down and determine what ingredients would work.

24 Q Is that something Dr. Dunckleman would

25 know about?

Page 137

1 A Dr. Dunckleman would be familiar with

2 it.

3 Q Would he know the status of testing of

4 that strategy?

5 A I believe we provided our latest

6 updating on this water treatment in this

7 document production.

8 Q The third one was the Algal Turf

9 Scrubbers?

10 A That's correct.

11 Q What's the status of that?

12 A That one has been discontinued.

13 Flo-Sun primarily was looking after that

14 particular portion of this research on their

15 property.

16 Q Sediment dredging we talked about.

17 Farm interconnects, what is that?

18 A This is where some of the farms that

19 are close together would look at ways to join

20 their canal system.

21 In the past every land owner had their

22 own system, they were completely separate from

23 anyone else's, and what we are talking about

24 here is if farmer A gets rain on his property

25 and there's a need to pump off stormwater, the

Page 138

1 alternative to pumping it off into the District

2 may be pumping it into farm interconnects,

3 pumping onto his neighbor's fields or canals

4 that are empty.

5 Q Can that not be done now?

6 A As I understand some of it is already

7 being done between farms at U.S. Sugar and

8 maybe some other growers.

9 Q ASR wells, what is that?

10 A Aquifer storage and recovery.

11 Q What work is going on regarding that?

12 A One of these, or maybe more of these

13 have been put into place by the South Florida

14 Water Management District north of Lake

15 Okeechobee.

16 Q There was one well north sometime ago?

17 A Yes, that's right, and they have

18 already been demonstrated to be effective in

19 taking out water that has phosphorus in it,

20 obviously.

21 U.S. Sugar is also --

22 Q I think they might tell you that's a

23 matter of debate.

24 A -- U.S. Sugar is also putting in one on

25 their property. One is going in as we speak,

Page 139

1 if it's not already completed.

2 Q Okay. Rock pits.

3 A Throughout the EAA there are a number

4 of places where rock pit excavation has taken

5 place for highway production, the base of those

6 pits are made up of limerock. If limerock

7 sorption works to remove phosphorus, it's

8 possible that taking stormwater and pumping

9 them into those pits may also have a

10 possibility of removing phosphorus.

11 Q We won't know that until what, the

12 limerock sorption study is in, before we can

13 use the rock pits?

14 A We will have to determine what degree.

15 Whether they remove phosphorus.

16 Q And the last bullet here, water

17 quality/supply diversion.

18 A I'll be honest here, I don't recall

19 exactly what we are referring to with that one.

20 (Whereupon, an off the record

21 discussion was had.)

22 (Whereupon, a luncheon recess was

23 taken.)

24 Q (By Mr. Rosenberg) Mr. Rackley,

25 regarding the exhibit before you, the strategy,

Page 140

1 are you aware of any cost analysis that's going

2 on regarding the strategies submitted there?

3 Is there anybody in the League or any of its

4 members that are conducting cost analysis of

5 any of the alternatives or any of the BMPs?

6 A I'm not specifically aware of the cost

7 analysis, no.

8 Q Let me break that down. Can I

9 understand that to be that nobody at the

10 League, League staff people, are doing

11 that, as such?

12 A The League?

13 Q Or League contracts?

14 A No.

15 Q Is part of Hutcheon's report here, does

16 that encompass cost analysis of the

17 alternatives?

18 A I don't recall that we have at this

19 point into time asked them to do any cost

20 analysis of these projects.

21 Q Did they do any cost analysis regarding

22 the IFAS BMPs?

23 A Not that I recall.

24 Q Do you know of anyone at the League or

25 any contract from the League regarding cost

Page 141

1 analysis of the IFAS BMPs?

2 A I believe Dr. Leo Polopolus.

3 Q Is doing cost analysis?

4 A Has looked at some of the IFAS BMPs.

5 I'm not certain if he's ever actually given a

6 number that I'm aware of.

7 Q Other than Leo Polopolus, are you aware

8 of anyone else that would be doing cost

9 analysis of any sort?

10 A Not that I am aware of.

11 Q Are you aware of anybody employed by

12 the co-op that might be doing that?

13 A No.

14 Q As a matter of practice here, does the

15 co-op touch base with you as to what they're

16 doing and what you're doing regarding BMP

17 research?

18 A Not as a practical matter. They don't

19 make us aware of specifics.

20 Q There's no sharing or pooling of

21 information on BMP analysis with the co-op and

22 the League?

23 A Not directly from the League to the

24 co-op.

25 Q Is there a pooling of information, as

Page 142

1 far as you know, regarding any of the members

2 of the League or the co-op?

3 A I don't -- I don't know of any, but

4 that doesn't mean that it's not occurring.

5 Q Regarding the presentation of this

6 program to the board, you were present at the

7 time?

8 A Yes.

9 Q Okay.

10 And I believe the presentation was done

11 by Mr. Buker and Mr. Carson, am I correct?

12 A As I recall, those were the two

13 involved.

14 Q Do you recall any comments either

15 Mr. Buker or Mr. Carson made regarding how much

16 phosphorus could be reduced by the strategy

17 that the League wants to employ by their

18 strategy?

19 A I recall them presenting this report as

20 a part of that presentation, they talk about

21 the number of tons it would be reduced which

22 would be listed here on these charts.

23 Q Do you recall them using any

24 percentage, like 40 to 60 percent of the

25 phosphorus could be reduced by employing these

Page 143

1 strategies?

2 A I don't recall percentages in this

3 presentation, they always talked about tons of

4 phosphorus reduction.

5 Q Were you at any other previous

6 governing board meetings or workshops where

7 representatives from a League or its members

8 had said to the board or staff at the League,

9 staff -- let me back up.

10 Are you aware of any previous workshops

11 or governing board meetings at the League --

12 Are you aware of any previous meetings

13 at the board, or workshops at the board, where

14 representatives of the League or its members

15 represented that the 25 percent goal of the BMP

16 and the SWIM program could not be attained?

17 A I'm not aware of any discussion where

18 it talked about it in the 25 percent not being

19 attainable. Not that I recall.

20 Q Were you at any meeting where Phil

21 Parsons may have said that to the board or

22 workshop, where the 25 percent goal was a goal

23 that he did not think they could attain?

24 A I'm not aware of that statement being

25 made.

Page 144

1 Q Would it be fair to say that you never

2 had a position on any percentage reduction

3 regarding BMPs?

4 Talking about you, yourself, whether 25

5 percent was a right number or 40 percent or 60

6 percent?

7 A No, I have never taken a position one

8 way or the other. I'm just not an expert on

9 BMPs and couldn't do so.

10 Q Did you ever make any representations

11 to any group you have talked to or anyone else

12 regarding a percentage of phosphorus reduction

13 through BMPs, either yourself or somebody

14 else's?

15 A I don't recall ever doing such.

16 Q Okay. Could you turn to page 0919493.

17 What specifically is that a picture of?

18 A I don't recall, to be honest with you.

19 Q Now, the next page 494. Do you know

20 what that is a picture of? I realize it's a

21 xerox and it's not a very good copy.

22 A This appears to be a picture of a

23 sediment canal where the sediment has been

24 removed down to the limestone rock.

25 Q What study was this related to?

Page 145

1 A This was related to the part of the

2 alternative plan where we talked about sediment

3 removal as a possible part of the plan. It

4 would also relate to limestone or limerock

5 sorption, because you're doing two things here,

6 you're taking the sediment out, which may have

7 phosphorus in it, you're also making an opening

8 available to the level of the water which may

9 also have phosphorus.

10 Q What happened? The water is removed

11 from this canal and then they are doing what to

12 it? They are studying the properties of the

13 base of the canal?

14 A Well, I can't tell from this one, but

15 as I recall, that they simply removed the

16 sediment from this canal. I don't think they

17 have done anything to it up to this point in

18 time, other than the removal process.

19 Q Would the sediment removal process, as

20 you understand it, have to be free of water?

21 Would the canals be pumped out fully free of

22 water? Would they go in and remove the

23 sediment and put the water back in the canal?

24 A I'm not certain that they have to

25 remove all the water before they can take the

Page 146

1 sediment out.

2 (Whereupon, Government's Exhibit No. 6

3 for Identification was marked by the

4 reporter.)

5 Q (By Mr. Rosenberg) Can I have you look

6 at Exhibit 6 and ask you if you have ever seen

7 that before?

8 A Yes, I have seen this.

9 Q That's the Procedural Guide For The

10 Development Of Farm-Level Best Management

11 Practice Plans, and Phosphorus Control in the

12 Everglades Agricultural Area, is it not?

13 A Yes.

14 Q Let me have you turn to page 2, which

15 is Bates number 06506,

16 There's a paragraph there -- section

17 entitled What Are BMPs. Can I have you look at

18 that?

19 The second paragraph below that it

20 says: It is important to note that the above

21 definition is not the same as the one given in

22 the SFWMD BMP Rule.

23 Could I ask you to read the first

24 paragraph there so I can ask you a question on

25 the second paragraph.

Page 147

1 MR. EARL: What do you want him to do?

2 MR. ROSENBERG: Wanted him to read both

3 paragraphs to himself.

4 MR. EARL: I would note also that this

5 copy you have given the witness has things

6 underlined and added to it.

7 MR. ROSENBERG: That's right. It has

8 my underlining. I want to focus him on

9 those sections.

10 Q (By Mr. Rosenberg) The statement that

11 you have just read says that the definition of

12 BMPs in this document is not the same as the

13 definition in the District BMP Rule, am I

14 correct?

15 A That's correct.

16 Q Do you know why a different definition

17 was used here?

18 A I have no idea why a different

19 definition was used.

20 Q Do you know who paid for this guide or

21 who funded the production of this guide?

22 A It says -- On the front it says "in

23 cooperation with the Everglades Agricultural

24 Area, Environmental Protection District."

25 I believe this was done from under a

Page 148

1 grant from that District to the University of

2 Florida.

3 Q Which definition of BMPs does the

4 League use?

5 MR. EARL: For what purpose, counsel,

6 are you asking. There's a rule and farm

7 BMPs.

8 Q (By Mr. Rosenberg) Which definition do

9 you use regarding what is meant by a BMP or BMP

10 that one of your members would put into place?

11 A You are going to have to be more

12 specific because the terminology BMP has been

13 misused and overused.

14 Q I have underlined in the second

15 paragraph there: The Rule definition is

16 specific to practices that will reduce

17 phosphorus levels by 25 percent. It does not

18 take into account profitability.

19 Are you with me?

20 A Yes.

21 Q Now, the BMPs, as the League

22 understands them, takes into account a

23 profitability factor, does it not?

24 MR. EARL: Counsel, I think you ought

25 to read in the next sentence so it is on

Page 149

1 the record.

2 MR. ROSENBERG: I have no problem with

3 that.

4 However, it is clear that if

5 profitability is not maintained, the

6 practice itself cannot be maintained.

7 Therefore, the reader is cautioned that the

8 practices presented in this guidebook,

9 though labeled as "BMPs," will only be BMPs

10 for your operation if they can be

11 implemented on your farm in an economically

12 viable fashion.

13 Is that the definition the League is

14 using or its members are using, to the best

15 of your knowledge?

16 A (By the Witness) We are talking about

17 BMPs specifically for phosphorus reduction,

18 yes.

19 Q We are talking about taking into

20 account profitability?

21 A Yes, I would ascribe to this definition

22 of BMP as it relates to phosphorus removal.

23 Q It would have to have profitability in

24 order to be a BMP which you would consider

25 using?

Page 150

1 A Yes.

2 Q Now, when you take profitability into

3 account, how is that done, are there cost

4 studies done?

5 A Well, one of the things that they point

6 out here, which is something that the League

7 believes in very, very strongly, is that a BMP

8 is not a BMP until every single individual

9 farmer has tried it on his property and can

10 demonstrate that it will reach the desired

11 reduction of phosphorus and will not negatively

12 impact that farmer's profitability. You really

13 can't determine this through, quote, research

14 other than having each individual farmer do it

15 on his property.

16 Q All right.

17 On page 2 at the bottom, reference is

18 made to -- I have that, I think, the last

19 sentence or so highlighted. Phosphorus

20 reduction levels greater than the 25 percent

21 BMP Rule criteria will serve to increase

22 Everglades restoration, reduce cost of STAs,

23 and enhance the environmental, slash, political

24 image of the EAA.

25 Do you know why the last clause was put

Page 151

1 in there, enhance the environmental, slash,

2 political image of the EAA?

3 A I have no idea.

4 Q Would it be fair to say that you are

5 not knowledgeable regarding the BMP

6 effectiveness ranges, the zero to ten percent,

7 zero to 20 percent, for the various BMPs, but

8 you are knowledgeable on the BMP effectiveness

9 ranges?

10 A I'm certainly not an expert on BMP

11 effectiveness.

12 Q So what would be the effectiveness

13 ranges of them?

14 A I just said I'm not an expert in that

15 area. So.

16 Q To the extent members of the League are

17 engaging in BMP projects, are they funneling or

18 supplying data to the League on the various

19 projects that they are doing or the various

20 strategies that they are undertaking?

21 A Restate that, please.

22 Q To the extent that your members are

23 doing BMPs, of one sort or another, are they

24 furnishing you, the League, with information

25 regarding their experience with those BMPs?

Page 152

1 A We have had growers or members of the

2 League -- I have personally had them say to me

3 we are implementing changes in our pumping

4 practices. They haven't been in effect long

5 enough to be able to tell on an individual farm

6 basis this is how much phosphorus has been

7 reduced as a result of doing this.

8 Q That's regarding pumping practices.

9 What about regarding other practices, not

10 pumping practices, are you -- are you being

11 furnished data or is it to early to do that?

12 A Again, I have had conversation of them

13 being implemented, but no concrete data yet to

14 say how much of a reduction took place.

15 Q Are you aware, then, of any opinions by

16 experts or by analysts whether implementation

17 of BMPs to date, the IFAS BMPs, are having an

18 adverse effect on crops or crop yield?

19 A Am I aware?

20 Q Are you aware of any opinion or

21 analysis by experts of whether implementation

22 to date, of BMPs, IFAS BMPs, are having an

23 adverse affect on crops or crop yield?

24 A No, I am not.

25 Q Are you aware of any opinions regarding

Page 153

1 those same BMPs, whether they are having an

2 adverse affect on costs or profitability?

3 A That's a broad statement, or broad

4 question. I have had individual members say to

5 me, based on my farming practices I think there

6 is a good chance or I believe there's a great

7 chance that some of these BMPs that are being

8 proposed will have a negative impact on my

9 operation.

10 Q And you understand that to mean it will

11 increase their costs or decrease their

12 profitability?

13 A I don't know for sure which one.

14 Q It says negative impact, and I just

15 want you to define what negative impact is.

16 Does that mean increased costs or decreased

17 profitability?

18 A Increased costs will decrease your

19 profitability.

20 Q Is that what you mean by negative

21 impact? Is that what --

22 A That's what I believe they would mean

23 when they would make that statement, yes.

24 Q Other than anecdotal information

25 furnished to you by some of the farmers here,

Page 154

1 is there any expert opinion on the adverse

2 affect or costs of profitability of

3 implementing these BMPs?

4 A Not that I am aware of.

5 Q Turn to page 38.

6 On the last paragraph, the first

7 sentence: Fertility BMPs as well as some of

8 the water management BMPs can still work for

9 farms suffering from excessive seepage.

10 What is your understanding of what that

11 means?

12 A I'm not sure I understand that

13 sentence.

14 Q Are there some farms in the EAA that

15 suffer from excessive seepage?

16 A What are you calling seepage, that's

17 the part I don't understand. I haven't read

18 through this thing.

19 Q Let's stop for a second and read under

20 seepage control.

21 Would you help me and explain to me

22 what they mean when they are suffering seepage

23 control?

24 MR. EARL: You're asking Mr. Rackley to

25 interpret what this document says?

Page 155

1 MR. ROSENBERG: Yes, if he can help me.

2 MR. EARL: If you can, ahead and do it.

3 A (By the Witness) I can't tell you what

4 they are referring to here about the impact of

5 the fertility BMPs would have as it relates to

6 excessive seepage. As I have said numerous

7 times, I'm not an expert on BMPs.

8 Q What about seepage, is that a common

9 problem, are you aware of seepage problems?

10 A I'm aware of seepage, and I know what

11 they are referring to here now when they talk

12 about seepage control. Anybody who owns a farm

13 or land next to Lake Okeechobee, where the lake

14 level is high, even if it hadn't been raining,

15 there are places where farmers have a difficult

16 time crossing the field with equipment because

17 it will be extremely wet and the equipment will

18 bog down and you can actually see it from the

19 road. That's what I think they are referring

20 to when they say seepage next to Lake

21 Okeechobee and water conversation areas.

22 Q Would my understanding be that those

23 farms which have those problems, the BMPs that

24 they employ there would be costlier BMPs than,

25 say, farms elsewhere in the EAA? It would be

Page 156

1 more costly to implement BMPs in these areas?

2 A Are you asking me if they are more

3 costly?

4 Q Yes.

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

6 Q Can I have you turn to the next page,

7 page 39. It looks like those are in sort of a

8 different order, but the same list of BMPs that

9 we have been discussing.

10 What I don't understand is A4. It

11 looks like it's a new BMP. Split Application

12 of Fertilizer and Use of Slow Release Forms.

13 What do you understand that to mean?

14 A I don't know. I really don't. That's

15 the first time I have noticed that one, quite

16 frankly. It's been different from what we

17 talked about earlier.

18 MR. EARL: As the witness says, he's

19 not an expert on BMP. You can use your

20 time going over this BMP, which is not his

21 speciality, but I'm just saying you're

22 eating up your time, it's your decision.

23 MR. ROSENBERG: I must tell you I'm

24 trying to shorten this, you will see a lot

25 of things underlined and highlighted. I

Page 157

1 understand what you are saying here. If I

2 don't understand something I will ask,

3 perhaps he could help me with it, it turns

4 out he can't.

5 Q (By Mr. Rosenberg) Are you aware of a

6 study draft report by Brown and Caldwell

7 Consultants regarding the costs of BMP

8 implementation?

9 A I'm aware that Brown and Caldwell was

10 asked to do some analysis of BMP costs by the

11 Water Management District, if that's what you

12 are referring to.

13 Q Are you aware there is a draft report

14 out by Brown and Caldwell?

15 A It seems I recall seeing a draft

16 report.

17 Q Is the League having anybody, as far as

18 you know, analyze that report, comment on that

19 report? When I say having anyone, are they

20 MR. EARL: Other than what counsel has

21 done.

22 A (By the Witness) I don't recall that we

23 have done anything to analyze that report.

24 Q Do you know if any members of the

25 League are undertaking analysis of that report?

Page 158

1 A Not that I know of, but there may be

2 something I'm unaware of.

3 Q Are you aware of any critics or

4 comments by anyone regarding the Brown and

5 Caldwell draft report?

6 A I think we may be doing some analysis

7 of the Brown and Caldwell report under

8 attorney/client privilege work.

9 Q Is the League presently engaged in or

10 contracted with anybody regarding studies of

11 STAs?

12 A I believe I have already been asked

13 that question earlier.

14 Q I thought I asked you BMP?

15 A STA early on.

16 But, the answer is no.

17 Q Do you know who is, on behalf of any of

18 your members, researching STAs? Do you know if

19 any of your members have contracted for the

20 researching of STAs?

21 A I'm not aware of any.

22 Q Do you know what the status of the STA

23 research is, either by any of the League

24 members or by anybody else?

25 A I mean you want to --

Page 159

1 Q Do you know what the status of research

2 is by anybody? Are you familiar with STA

3 research at all?

4 A Who's research?

5 Q Anybody contracted by League members or

6 anyone else?

7 A I'm not aware of anybody that is. The

8 League certainly is not, as I have already

9 said, and I'm not aware of any of our members

10 doing any analysis of performance of STAs

11 specifically.

12 Q Okay.

13 MR. EARL: And that, of course, is

14 under the same caveat, does not include any

15 work counsel may be doing.

16 Are we done with this document?

17 MR. ROSENBERG: Hold on for a second.

18 Q (By Mr. Rosenberg) Could I have you go

19 back to the previous exhibit. Page 0919501.

20 MR. EARL: Number 5 now. Correct?

21 MR. ROSENBERG: Yes.

22 Q (By Mr. Rosenberg) I know you have told

23 me that turf scrubbers are not an alternative

24 now that they are looking at, but the last

25 bullet there says: 35 times more effective

Page 160

1 than STAs.

2 Did you know if anyone at the League or

3 members of the League or the Flo-Sun people

4 were doing studies on the effectiveness of STAs

5 in order to get this statement or to make this

6 statement?

7 A This statement speaks to the

8 effectiveness of Algal Turf Scrubbers.

9 Q That's right, and it's 35 times more

10 effective than STAs, and I'm trying to see how

11 they can say it is 35 times more effective than

12 STAs unless they studied STAs, and my question

13 is what studies were done on STAs?

14 A This was based on using the District

15 numbers, on using the terms of the

16 effectiveness of STAs, and comparing them to

17 Algal Turf Scrubbers.

18 Q So, it was the District figures that

19 were picked up here and not independent studies

20 of Flo-Sun, to the best of your knowledge?

21 A That's correct.

22 MR. EARL: Madam reporter, you are

23 going to attach copies of the exhibits to

24 the transcript?

25 COURT REPORTER: Correct.

Page 161

1 Q (By Mr. Rosenberg) As far as you know

2 and from your questions here, there is no

3 science that the League has that is privileged?

4 At this point I'm not talking about the League

5 attorney, I'm talking about the League.

6 There's no science that you have which you

7 claim a privilege on that you will not turn

8 over to us?

9 A No.

10 Q So the only science that will not be

11 turned over to us is science currently being

12 undertaken pursuant to counsel by the League

13 discovering this, that or the other thing, or

14 attempting to discover?

15 A As far as I know we have turned over

16 everything through this document request.

17 Q So the other science that has not been

18 turned over, it's my understanding there is a

19 claim of attorney/client privilege on that

20 science?

21 A That's correct.

22 Q But that's --

23 MR. EARL: Attorney work product.

24 MR. ROSENBERG: What?

25 MR. EARL: Attorney work product.

Page 162

1 MR. ROSENBERG: Attorney work product.

2 MR. EARL: That is so long as it has

3 been requested, the record ought to reflect

4 if your request properly calls for it. We

5 haven't produced anything your request

6 doesn't call for.

7 MR. ROSENBERG: Okay. Well, my

8 question was a bit more general than that.

9 I have asked him questions and he said the

10 answer -- I understood the answers were,

11 there's other research going on but that's

12 privileged research at this point. I

13 simply wanted to ask about that. I think I

14 have the answer I want.

15 (Whereupon, Government's Exhibit No. 7

16 for Identification was marked by the

17 reporter.)

18 Q (By Mr. Rosenberg) Sir, can I have you

19 look at Exhibit 7. Who is Charles Haas,

20 if you know?

21 A Charles Haas, at least he was, I think

22 he still is, the attorney for the EAA

23 Environmental Protection District. I'm sorry.

24 I'm sorry. That's not true. I made a

25 misstatement. He is the accountant or the

Page 163

1 bookkeeper.

2 Q For the EPD?

3 A EPD.

4 Q This contract, this is a contract then

5 or proposal to the EPD; am I correct?

6 A That's what it says.

7 Q Has nothing to do with the League,

8 then?

9 A No.

10 Q The League sponsor any research by

11 Forrest Izuno at the same time this contract

12 was in place?

13 A The League gave a 30 thousand dollar

14 grant to Dr. Izuno and IFAS prior to the taxing

15 district issuing them a grant to keep some

16 research going that had started off as research

17 that was being conducted on behalf of South

18 Florida Water Management on best management

19 practices.

20 Q Is that research that you extended by

21 your grant the same research as this Exhibit 7

22 is talking about?

23 MR. EARL: You understand the question?

24 A (By the Witness) You need to --

25 Q You extended some research, I think you

Page 164

1 just told me by Forrest Izuno, 30 thousand

2 dollars. What was the nature of that research

3 that you extended, you had extended?

4 A The 30 thousand dollars was to allow

5 him to keep -- as I recall, to keep all of his

6 personnel in place that were doing BMP research

7 on behalf of a contract that they had or grant

8 they were operating under from the South

9 Florida Water Management District.

10 Q Now that 30 thousand dollar payment,

11 that was unrestricted or was it restricted?

12 Was it just a gift?

13 MR. EARL: Objection. Form of the

14 question.

15 Q (By Mr. Rosenberg) Was the 30 thousand

16 dollars a gift?

17 A It was a grant.

18 Q Okay. Were there any stipulations to

19 that grant?

20 A No.

21 Q Now, was that grant made at the same

22 time as this agreement or -- between the EPD

23 and Forrest Izuno was ongoing?

24 A Not at the same time, no.

25 Q Was the grant you made before this?

Page 165

1 A Yes.

2 Q Was the research that Izuno is doing by

3 virtue of the EPD agreement, the same research

4 that he was doing on behalf of the District

5 that you extended by virtue of your grant?

6 A I haven't recently reviewed this

7 document to see what's in here. As I said

8 earlier, the 30 thousand dollars was to keep

9 the necessary staff people under Dr. Izuno, as

10 I recall, employees in place, until they could

11 present a proposal to the taxing district.

12 Q And then what happened, the taxing

13 district then would negotiate with him to

14 extend the contract or not extend the contract,

15 or conduct the research or not conduct the

16 research?

17 A I'm not sure exactly how it was handled

18 but it was under the domain of the

19 Environmental Protection District.

20 Q What's the role of the EPD oversight

21 technical committee, if you know?

22 A I don't know specifically what the role

23 is.

24 Q Are there any members of the League on

25 the technical oversight committee of the EPD?

Page 166

1 A I'm -- quite frankly, I'm not even

2 certain there is a technical oversight

3 committee of the he EAA/EPD.

4 Q Peterson Consulting Limited

5 Partnership, who is that?

6 A I'm sorry?

7 Q Peterson Consulting Limited

8 Partnership?

9 A That's an economic research firm.

10 Q And are they retained by the League?

11 A Not directly by the League.

12 Q Did they have any roles in the economic --

13 let me withdraw that.

14 You're aware that Dr. Grace Johns of

15 Hazen and Sawyer was doing a study for the

16 District?

17 A Yes.

18 Q Do you know what role Peterson

19 Consulting played on behalf of either the

20 League or any of the League members?

21 A Initially Peterson was going to act as

22 a conduit of information, in other words, find

23 out what Hazen and Sawyer needed to do their

24 analysis, and be responsible for trying to

25 gather that information, if possible, from

Page 167

1 various members of the Florida Sugar Cane

2 League.

3 Q Did they do that?

4 A They did get us some information.

5 Q Did Grace Johns, or Hazen and Sawyer

6 make requests of you for certain information?

7 A Yes.

8 Q And were those requests in writing?

9 A I don't recall if I ever got anything

10 specific from Grace Johns in writing.

11 Q When she made requests of you, there

12 was certain of those requests that you did not

13 or could not comply with, am I correct?

14 A There were certain requests that we

15 didn't comply with.

16 Q Which request did she make that you did

17 not comply with?

18 A I can't tell you specifically. As I

19 recall there was a whole list of information

20 that she was asking for.

21 Q Can you tell me generally?

22 A She wanted specific farm level

23 information that related to production, and as

24 I recall, profitability and that kind of thing.

25 Q Profitability information that "you",

Page 168

1 the League would not have; is that correct?

2 A That's correct.

3 Q But production information, is that

4 information that you do have at the League?

5 A Not at the level that she was talking

6 about.

7 Q So, could I conclude then what she was

8 asking you even if you wanted to produce it,

9 you couldn't produce it because you didn't have

10 it?

11 A That's correct.

12 Q Do you know what percentage of South

13 Florida water the EAA consumes? Is that

14 something you would know?

15 A I don't know.

16 Q Does the League maintain records of

17 water consumption?

18 A No.

19 Q Water discharge?

20 A No.

21 Q Earlier I read to you the preliminary

22 disclosure of what your testimony would be

23 about. It stated again, and I will read it

24 again, because I want to ask you about parts of

25 this. It says subject matter of your

Page 169

1 anticipated testimony includes standing. What

2 do you understand your testimony is going to be

3 regarding the issue of standing?

4 A Well, of course, in the second amended

5 complaint standing is discussed quite

6 extensively. But, generally speaking, the

7 Florida Sugar Cane League has, or consultants,

8 or people working for it have represented major

9 portions of the growers and processors of sugar

10 cane on issues that relate to the everyday SWIM

11 Plan before the Water Management District and

12 various other areas where this has been

13 discussed, and workshops, and that kind of

14 thing. And have, from day one, been involved

15 in this on behalf of the growers and processors

16 of sugar cane.

17 The League also has as a part of its

18 charge as a trade association or an

19 organization that represents these growers and

20 processors, as part of its responsibility to

21 represent growers and processors in any of

22 those areas where there may be activity that

23 will affect their holdings in the Everglades

24 Agricultural Area, such as the way water is

25 managed, what kind of impacts that water

Page 170

1 management may or may not have on their ability

2 to get flood protection or irrigation water or

3 those kinds of things.

4 And they are very dependent on that

5 system that was created by the Central and

6 Southern Flood Control Project in order to be

7 able to grow and produce sugar cane in the

8 Everglades Agricultural Area. As a result,

9 anything that negatively impacts their ability

10 to do that then automatically becomes an issue

11 that the League has a responsibility to get

12 involved in.

13 The Everglades SWIM Plan does that. It

14 causes -- it asks for some fairly significant

15 changes in the water management system that our

16 members have come to be able to depend on in

17 order to be able to grow crops. So,

18 consequently, we feel like, from a practical

19 point of view, we certainly have a right, a

20 responsibility to be involved on behalf of our

21 members to protect those interests.

22 Q So, when you are talking about

23 standing, you're going to testify who you are,

24 that is who the League is, what the League

25 does, historically what the League has done and

Page 171

1 what they protect and what are their goals,

2 that's what you mean by standing?

3 A I mean what I just relayed to you in

4 the first question. Our standing. Our right

5 to be involved in this issue is based on the

6 things that I related to you in the previous

7 question.

8 Q You go on -- goes on to say you are

9 going to testify regarding the impacts of the

10 Everglades SWIM Plan on agricultural practices.

11 What do you understand your testimony is going

12 to be about?

13 A Well, of course we haven't -- I haven't

14 done anything yet to prepare specific

15 testimony. But, I expect to be relaying my own

16 personal observations as well as observations

17 and experiences of our members about the

18 impacts of the Everglades SWIM Plan on our

19 members' ability to grow and produce sugar

20 cane.

21 Q For example, what sort of impacts are

22 we talking about?

23 A Well, impacts from the change in the

24 water management system when this plan is

25 implemented.

Page 172

1 Q You're not saying this as an expert of

2 any sort, but as an observer. Is that -- do I

3 understand correctly your testimony is going to

4 be as an observer as to what the impacts are

5 doing to agricultural practices in the EAA?

6 A My testimony will be based on what I

7 observe but also what the members that I

8 represent have indicated to me is a real

9 concern of theirs as it relates to this plan.

10 Q Well, it will be -- Well, will it be

11 substantially anecdotal? Is that what you are

12 going to do, relate stories that your members

13 have told you as to what is happening or what

14 they anticipate is going to happen?

15 A Well, of course, most of my testimony,

16 since I'm not an expert, will be based on

17 observation. But the League will have experts

18 who will testify to the actual specific impact

19 of some of these decisions that will be made as

20 a result of this SWIM Plan.

21 Q What present observations do you have

22 now regarding impacts of the SWIM Plan on

23 agricultural practices?

24 A Well, as we have discussed earlier

25 based on some of the questions that you have

Page 173

1 asked, crops that we grow are very sensitive to

2 water, as are most every crop that is grown for

3 food production; in fact, I don't know of any

4 crops that are not sensitive.

5 Anything that will restrict the ability

6 of our members to get water off of their farms,

7 anything that will prevent their ability to get

8 water onto their farms will have a detrimental

9 impact on their interest and their ability to

10 grow and produce food. And that I know from

11 firsthand observation in the Everglades

12 Agricultural Area.

13 Q What are those firsthand observations?

14 Can you relate some of that to me? What

15 firsthand observations are you talking about?

16 A I'm talking about the inability to move

17 water off of the property.

18 Q Can you give me a specific farm that

19 you are talking about, or a specific instance

20 that you are talking about? You anticipate you

21 will be talking about specific instances?

22 A I don't know at this point in time, we

23 haven't prepared my testimony as to whether I

24 will be talking about specific instances.

25 Q It also states that you will testify

Page 174

1 including impacts on the League. What impacts

2 on the League are you going to testify to?

3 A Well, any impact that occurs to a

4 League member obviously occurs to the League

5 proper, because the League is nothing more than

6 whatever its members are.

7 Q What sort of impacts are you talking

8 about, though?

9 A I'm talking about the impacts that the

10 SWIM Plan will have on my members' ability to

11 grow and produce sugar cane in the Everglades

12 Agricultural Area.

13 Q What aspects of the SWIM Plan are you

14 talking about that will have impacts?

15 A The -- we expect that the regulatory

16 rule and the BMPs that are associated there

17 that in fact restrict water movement will have

18 an impact on water sensitive crops.

19 Q What BMP impacts are there to date that

20 you see as having an impact on your members?

21 A I don't know specifics as to this point

22 in time, but we do know from experience that

23 anything, as I said earlier, that restricts the

24 movement of water has a great potential to

25 cause crop damage to water sensitive crops.

Page 175

1 Q Other than BMP impacts what other

2 impacts does the SWIM Plan, do you know of,

3 that is having an affect on League members?

4 A Well, of course, the plan hasn't been

5 implemented yet.

6 Q What do you anticipate testifying on if

7 the plan hasn't been implemented yet? What

8 would you anticipate your testimony to be,

9 then?

10 A Well, of course, the other big aspects

11 of the Everglades SWIM Plan are the stormwater

12 treatment areas. Stormwater treatment areas

13 will be built such that the water that leaves

14 the main canals in the Everglades Agricultural

15 Area can flow into these stormwater treatment

16 areas, and those areas are supposed to in some

17 fashion or other remove the phosphorus from

18 that water.

19 We know from experience that those

20 canals have to be able to move the water fairly

21 quickly, anything that will slow that ability

22 to move that water out of the area will have a

23 negative impact in terms of affecting water

24 sensitive crops. I.E. Moreover, we believe it

25 will cause more often flooding. We also

Page 176

1 believe those stormwater treatment areas will

2 also impact the water supply.

3 Q Do you expect to testify on hydroperiod

4 issues?

5 A What we believe that one of the

6 problems -- like I said, my testimony is not --

7 we have not discussed specific testimony yet,

8 but one of the problems with stormwater

9 treatment areas and the current Everglades SWIM

10 Plan is it does not take into account the

11 hydroperiod impacts on the Everglades. We

12 believe that is a much bigger part of the

13 problem, and we don't believe that the plan

14 addresses that effectively and sufficiently.

15 It does -- it does show and include

16 phosphorus as the major part of the problem.

17 It also does not look at the impacts of the

18 federal project design itself and what kind of

19 impacts the design of the system has had on the

20 hydroperiod.

21 I would suspect, although, again, I

22 said earlier my testimony has not been

23 discussed in any kind of detail, that, you

24 know, I'll be testifying at least to the fact

25 that's one of the problems of the plan is that

Page 177

1 it's not been looked at.

2 Q Would it be fair to say, my asking you

3 questions about your proposed testimony is

4 premature?

5 A Specific questions, yes.

6 Q And the general areas you would talk

7 about would be water supply, and BMP effects

8 and STA effects?

9 MR. EARL: Objection, mischaracterizes

10 the witness' prior testimony.

11 Q (By Mr. Rosenberg) Would the general

12 areas of your testimony include BMP effects on

13 your members?

14 A I certainly expect that to be a part of

15 my testimony.

16 Q STA effects on your members?

17 A I would expect that would be a part of

18 the testimony.

19 Q Water supply effect on your members?

20 A I expect that to be a part of the

21 testimony.

22 Q And what other aspects of the plan

23 would you expect to be part of your testimony

24 other than that?

25 A I would expect to talk about the fact

Page 178

1 that the plan seems to be based on, at least

2 according to the technical people that I have

3 talked to, based on inaccurate or incomplete

4 scientific information. That as a result of

5 that standards are being set or proposed to be

6 set in this plan that are so low that even

7 rainfall that falls on our farmers and members'

8 property would meet those requirements, and

9 that factually the SWIM Plan is not complete.

10 Q Okay. In what way is the SWIM Plan

11 incomplete?

12 A Not based on sound scientific

13 information.

14 Q Is it incomplete in any other way?

15 Does it not take into account something else?

16 A It doesn't take into account

17 hydroperiod, as I already mentioned, and

18 impacts of the federally designed system on the

19 remaining Everglades.

20 Q Is it incomplete in any other way?

21 A I'm sure it is, there are numerous

22 other ways that are pointed out in this second

23 amended complaint. I would be glad to take the

24 time to read through them if you like.

25 Q I have got the time, but I think your

Page 179

1 attorney thinks this is the most boring thing

2 he has sat through.

3 MR. EARL: If you would like to, I

4 would be happy if you want to know what his

5 testimony going to be about, it's about the

6 petition. So you might want to inquire.

7 Q (By Mr. Rosenberg) You have the

8 petition in front of you?

9 A Yes, second amended complaint.

10 Q Would you turn to page 5, then.

11 Paragraph 8. You anticipate testifying on that

12 paragraph?

13 A We anticipate testifying to that, sure.

14 Q Would you turn to page 11, please.

15 Would you look at paragraph 27.

16 A Okay.

17 Q Do you anticipate testifying about

18 that?

19 A Yes.

20 Q What will your testimony be regarding

21 that subject matter?

22 A Simply that's an aspect of the SWIM

23 Plan that has not been sufficiently researched

24 and developed as a major part of the problem of

25 the Everglades.

Page 180

1 Q Paragraph 27 reads: Federally designed

2 and State operated water control pumps and

3 structures encompassed by the SWIM Plan have

4 resulted in excessive loading of nutrients into

5 areas downstream of such structures so as to

6 unnaturally and unnecessarily increase levels

7 of phosphorus per unit area. Would you be

8 testifying on that?

9 A I won't be testifying on the specific

10 technical support for that statement, simply

11 that that, according to this current SWIM Plan,

12 has not been dealt with as a major cause of

13 changes in the Everglades.

14 Q So you would then point out an omission

15 in the SWIM Plan, and that's the omission you

16 would point out?

17 A That's correct.

18 Q Talks about excessive loading of

19 nutrients. Where do those nutrients come from,

20 do you know?

21 A I don't have the specifics of where the

22 nutrients come from.

23 Q The last sentence there says -- Well,

24 let me read this. SWIM Plan fails to identify

25 these impacts or to require action by the

Page 181

1 federal or state government to alleviate design

2 defects which cause such excessive loadings.

3 You going to testify to that?

4 A I'm going to testify to the fact that

5 the plan doesn't identify or deals with those

6 impacts, either -- as I said, either in terms

7 of identifying them as a problem or posing a

8 solution to the problem.

9 Q The last sentence says: But for such

10 federally designed structures and systems

11 phosphorus accumulations downstream of the

12 pumps and structures leaving the EAA would be

13 substantially lower. Are you going to testify

14 to that?

15 A I will testify to the fact that the

16 federal design of the system, as such, that the

17 water is concentrated directly below those pump

18 stations and is not, does not sheetflow as

19 natural Everglades water would have. Not to

20 the specific impacts or the technical aspects

21 of the impact on the Everglades.

22 Q Is there anything else regarding

23 paragraph 27 that you are going to testify?

24 A I mean there may be when we start

25 preparing the testimony, but not that I'm aware

Page 182

1 of now.

2 Q Paragraph 28. Operational procedures

3 and policies of the District have also resulted

4 in excessive nutrient loading to areas which

5 would otherwise have received substantially

6 less phosphorus per unit area. Is that

7 something you are going to testify on?

8 A Again, that's tied to -- very closely

9 to 27. Here we are talking about how the

10 District operates those facilities and the fact

11 that that operation, that procedure has not

12 been properly dealt with in terms of

13 determining the impacts. To that degree or to

14 that point I will expect to be testifying to,

15 but as to the exact impact, factual impact, I

16 don't expect to.

17 Q The next sentence: The SWIM Plan fails

18 to identify, evaluate and prescribe remedies

19 and Federal Project operational modifications

20 to induce such excessive loading and the

21 ecosystem impacts thereof. Is that what you

22 will be testifying?

23 A I expect, again, to be testifying to

24 the fact that we have not identified the

25 impacts caused by the operation of the

Page 183

1 federally designed system.

2 Q Could I direct your attention to the

3 next page, page 12, paragraph 32.

4 Will you be testifying to that?

5 A I expect to be testifying to whatever

6 degree the change in the South Florida Water

7 Management District structures will have on the

8 activities and members of the League.

9 Q Could you be more specific about that?

10 What sort of effects are we talking about?

11 A Well, specifically what we have already

12 discussed, the STAs, obviously. The mere

13 design and placement of STAs in the southern

14 part of the Everglades Agricultural Area will

15 restrict the movement of water. It doesn't

16 take a rocket scientist to figure that out.

17 Q To give elevated priority to

18 environmental purposes over regional water

19 supply and flood control. Are you going to

20 testify to that?

21 A Yes, I would expect to talk about the

22 fact that environmental purposes, at least

23 according to the SWIM Plan, seem to be taking

24 precedence over the original design of the

25 Central and Southern Flood Control Project

Page 184

1 which was to provide reasonable water supply

2 and control method for both urban and

3 agricultural needs.

4 Q Next line: Based on the SWIM Plan's

5 erroneous factual assumptions as to

6 environmental conditions in the EPA and the

7 cause of such conditions.

8 What are the erroneous facts you will

9 assume that you are going to testify to?

10 A I don't -- Let me back up. I won't

11 testify as to the scientific basis of which

12 these assumption are inaccurate, but in the

13 complaint, I think further over in the

14 complaint, it lists the aspects of the

15 Everglades SWIM Plan that we object to as being

16 non factual or incomplete in terms of factual

17 information to support them.

18 Q And you are not going to testify

19 regarding that, that will be expert testimony?

20 A Expert testimony will talk in terms of

21 degree that factual information is lacking. In

22 terms of the interest of my members, I expect

23 to certainly talk about the fact that we think

24 that is one of the -- those are some of the

25 major faults of the plan that they don't

Page 185

1 factually address.

2 Q Paragraph 33, says: The regulatory

3 policies and programs, dictated by the SWIM

4 Plan will cause Petitioners to suffer physical

5 changes to their property, will impair existing

6 permit rights, and will adversely affect their

7 substantial interests and ability to conduct

8 essential water management activities on their

9 property to protect their crops and farming

10 operations.

11 Is that something you expect to testify

12 to?

13 A I expect to testify to the extent that

14 the Everglades SWIM Plan and any rules or

15 permits that come out of it, the extent of that

16 impact on my membership.

17 Q Now, when you say that impact, second

18 line here says to suffer physical changes. I

19 gather that's an impact. What physical changes

20 are you talking about?

21 A Specifically the BMP Rule in order to

22 meet the 25 percent reduction is going to

23 require changes in the way the water is managed

24 on the farm. Even some of the alternatives

25 that we propose require less pumping or call

Page 186

1 for less pumping.

2 Water sensitive crops are threatened

3 when there's excess water around. Anything

4 that reduces the ability to provide adequate

5 flood protection for the crops that we grow can

6 be expected to have a negative impact on the

7 interest of my members.

8 Q Is this a physical change you are

9 talking about?

10 A That's one of the physical changes.

11 The other, of course, is stormwater treatment

12 areas being built at the southern end of the

13 EAA which, again, will have an impact on my

14 members' ability to receive adequate flood

15 protection.

16 It also has an impact on my members'

17 ability to receive adequate irrigation water.

18 Q How will that impact flood protection

19 or irrigation water?

20 A I think I have already answered that

21 part about flood protection, I will try to do

22 that again.

23 Anything downstream, the water that

24 leaves EAA can't leave on its own, it has to be

25 pumped out. When it rains in that basin that

Page 187

1 water must be pumped out in a hurry in order to

2 prevent flooding of our crops. Anything that

3 hinders or prevents that from taking place

4 almost immediately is a threat to my members.

5 Those stormwater treatment areas which

6 require, regardless of the conditions, the

7 water has to be run through those treatment

8 areas at a very slow rate before it can be

9 pumped out of the EAA has a great, great,

10 great, great potential to cause damages to my

11 members' interest.

12 Q Would cause a backup during a rain

13 event and that backup because of the STAs would

14 then cause flooding to your members?

15 A Yes.

16 Q Is that what you would be testifying

17 to?

18 A That's one of the points I would be

19 making.

20 Q Okay. What about the second point

21 there, it would cause a problem regarding

22 irrigation.

23 A The District, the South Florida Water

24 Management District has information that

25 demonstrates that wetlands lose a great deal to

Page 188

1 evaporatory transportation than do farmlands.

2 Okay. If we create additional wetlands in the

3 southern part of the Everglades Agricultural

4 Area and put water in there, and we are losing

5 a great percentage, I don't have the exact

6 percentages but the District does, and I have

7 heard numerous presentations on this, then that

8 loss of water is a threat to our ability to get

9 irrigation water.

10 Q And you will have scientists testifying

11 to that?

12 A I expect that we'll have technical

13 experts that will talk about that impact.

14 Q When you go on it says, and adversely

15 affect their substantial interests, are you

16 talking about economic interest?

17 A Of course, anything that affects the

18 farmers. They are to trying make a profit, if

19 it's an economic impact, then that's the impact

20 they are most concerned about. That's the one

21 we at the League would primarily spend our time

22 on.

23 Q Would you turn to page 14, please.

24 Paragraph 37.

25 The first sentence reads on September

Page 189

1 28, 1990, the League released a final draft of

2 the Everglades SWIM Plan.

3 MR. EARL: I'm sorry? You said the

4 League released?

5 MR. ROSENBERG: Excuse me.

6 Q (By Mr. Rosenberg) On September 28th,

7 1990, the District released a final draft of

8 the Everglades SWIM Plan that combined the Park

9 and the WCAs into one water resource, and

10 contained findings and policies radically

11 different from the 1992 SWIM Plan at issue.

12 Is that something you are going to be

13 testifying on?

14 A I don't know that I would testify

15 specifically to the difference between the 19 --

16 September 28, 1990, SWIM Plan and the September

17 1992, SWIM Plan.

18 Q Would you look at paragraph 54, please,

19 on page 19.

20 A Um-hmm.

21 Q Is that something you would testify on?

22 A I don't know at this point in time.

23 That specific statement has not been discussed.

24 I may or may not.

25 Q Can I direct you to paragraph 56.

Page 190

1 At the tail end of that paragraph, it

2 says: Caused the District to use biased,

3 factual determination and standards.

4 Can you identify what biased, factual

5 determinations of this you are talking about?

6 A I think those are already outlined in

7 the complaint.

8 Q Do you anticipate you will be

9 testifying as to biased, factual determinations

10 and standards?

11 A I don't know that that will be a part

12 of my testimony at this time. I also don't

13 know that it won't.

14 Q Would you look at paragraph 65, please.

15 Okay. The last line or two talks about

16 alleged water quality benefits with public

17 lands. Is that something that you would

18 anticipate testifying about?

19 A Last line where?

20 Q Paragraph A.

21 A I would expect to testify to any of

22 these things -- paragraph 65 -- that we

23 believe will have a substantial impact on the

24 interest of our members, including that area.

25 Q Do you know what's meant by alleged

Page 191

1 water quality benefits?

2 A We are talking about this Plan's

3 ability to provide improvement in water quality

4 to public lands like the water conservation

5 areas or Water Conservation Area 1 or the

6 Everglades.

7 Q Is it going to be your testimony that

8 there are no water quality benefits for public

9 land by virtue of the SWIM Plan?

10 A No, I didn't say that.

11 Q Are there water quality benefits for

12 public land by virtue of the SWIM Plan?

13 A Well, anything in the SWIM Plan that

14 works that causes phosphorus reduction I think

15 could have some benefit.

16 Q Are you planning on testifying as to

17 that?

18 A I'm sorry?

19 Q Plan on testifying as to that? That if

20 something works in the SWIM Plan it would have

21 a benefit, would that be part of your

22 testimony?

23 A I don't know specifically if that will

24 be a part of my testimony.

25 Q Paragraph, subparagraph B states that

Page 192

1 farming activity in the EAA, by itself, causes

2 alleged water quality violations. What

3 contribution do you understand farming makes

4 regarding the phosphorus problem in the park or

5 the water conservation areas?

6 A Well, first of all, as we said here,

7 it's alleged. I'm not convinced nor are my

8 members convinced that there are problems in

9 the park or the Loxahatchee Refuge that are

10 caused specifically by phosphorus and certainly

11 not phosphorus that comes from the Everglades

12 Agricultural Area.

13 Q And you are going to testify as to

14 that? You are going to anticipate that?

15 A I anticipate probably answering a

16 question along the lines of alleged water

17 quality impacts.

18 Q And stating that, would it be fair to

19 say that your testimony will be that farming

20 does not contribute to whatever problems are

21 caused in the Park in the WCA by virtue of

22 phosphorus?

23 A I don't know that I would -- I'm not a

24 technical expert. That kind of testimony

25 specific to the actual impacts is more likely

Page 193

1 to be handled by technical experts.

2 Q The next one, subparagraph C, last two

3 lines say Petitioners --

4 MR. EARL: Let him read the whole

5 paragraph, counsel, if you are going to ask

6 him a question.

7 A (By the Witness) Okay.

8 Q That last line talks about "all alleged

9 impacts." Is there a percentage of the alleged

10 impacts that are caused by farmers or

11 agricultural practices?

12 A Where?

13 Q I'm taking your paragraph here: If

14 remedies for such excessive phosphorus loading

15 had been properly allocated to the federal

16 government and to the District, Petitioners

17 would not be unfairly held responsible for all

18 alleged impacts.

19 Now assuming that we would have this

20 allocation, what allocation would you make for

21 farmers?

22 A That answer -- the answer to that

23 question has never been determined. The

24 District nor anyone else that I know of has

25 ever been able to determine what, if any,

Page 194

1 impacts have been caused by phosphorus that

2 leaves the land in the Everglades Agricultural

3 Area.

4 Q Would you then be prepared to testify

5 that there are no impacts attributable to

6 farmers?

7 A No, I didn't say that. Nor would I be

8 willing to testify to that.

9 Q And if that's true, then what

10 percentage? And I'm not going to hold you to

11 an exact number. Is there a given percentage?

12 A I don't know the percentage. We

13 haven't answered that question. That's one of

14 the problems with this plan, it is not

15 allocated.

16 Let me back up. It hasn't even

17 determined what the damage is in the Park and

18 WCA-1 specifically, and whether or not there is

19 a direct link between phosphorus and whether or

20 not that direct link with phosphorus, if it

21 does exist, can be linked back to water that

22 comes from the Everglades Agricultural Area.

23 That's not to say there are not some impacts,

24 we just don't know, and this plan fails to

25 evaluate that.

Page 195

1 Q Let me turn your attention to paragraph

2 67 C.

3 A I'm sorry, did you say B?

4 Q C.

5 Is that something that you would be

6 testifying to?

7 A I would expect to testify to the fact

8 that the current SWIM Plan seeks to hold

9 farmers responsible for the loading of

10 phosphorus and other water quality constituents

11 resulting from the federal design or the

12 District operation of the federal project,

13 simply because we don't see any evidence in

14 this plan that anyone else has been pulled in

15 and called the culprits or said to cause the

16 problem, all the reference is to EAA farmers.

17 Q What do you understand the farmers'

18 responsibility to be regarding phosphorus

19 loadings and the removal of water with

20 phosphorus from the EAA?

21 MR. EARL: Objection, calls for a legal

22 conclusion determining a legal

23 responsibility. Form of the question,

24 also.

25 Q (By Mr. Rosenberg) Do you understand

Page 196

1 that the farmers have a responsibility, to any

2 extent, regarding the water that they use and

3 then they send out of the EAA?

4 MR. EARL: Objection. Calls for a

5 legal conclusion.

6 Q (By Mr. Rosenberg) Are you able to

7 answer the question?

8 MR. EARL: You can answer it if you

9 can.

10 A (By the Witness) I can't answer the

11 question.

12 Q Do you understand that the farmers have

13 any responsibility, is my question, regarding

14 water leaving the EAA?

15 MR. EARL: Calls for a legal

16 conclusion.

17 A (By the Witness) I can't answer the

18 question.

19 Q Would you look at paragraph I?

20 A Still on 67?

21 Q Page 24.

22 A Okay.

23 Q Has the League determined a water

24 budget for areas regulated under the SWIM Plan?

25 A I'm sorry. Repeat the question.

Page 197

1 Q Has the League determined a water

2 budget for areas regulated under the SWIM Plan?

3 A No.

4 Q Paragraph J. Has the League identified

5 sources of phosphorus loading into the EPA from

6 outside the EAA?

7 MR. EARL: Object to the form of the

8 question, counsel. This assumes -- the

9 League is not the regulatory agency. If

10 you mean to infer that the League has some

11 obligation, the League is not promulgating

12 a SWIM Plan or regulations, that would be

13 the District's obligation.

14 MR. ROSENBERG: That would be fine if

15 that's his answer, but he hasn't done it.

16 MR. EARL: If you know, Mr. Rackley, if

17 it's not the work of attorney work product.

18 A (By the Witness) I don't recall that we

19 have ever done anything to specifically

20 identify all the sources of phosphorus.

21 Q Would you turn to page 26, please.

22 Paragraph AB. Is that something you will

23 testify to?

24 A I would expect to testify to the fact

25 that the SWIM Plan doesn't do that.

Page 198

1 Q Does the League have -- What are the

2 less costly alternatives to STAs that the

3 League has, if any?

4 A We believe the alternative plan is less

5 costly.

6 Q Is that the one we just went through

7 earlier today?

8 A Yes, sir.

9 Q And that alternative plan will remove

10 150 tons, is that your testimony?

11 A No, that was not my testimony.

12 Q How many tons of phosphorus will that

13 alternative plan remove by 1996?

14 MR. EARL: Calls for opinion testimony.

15 Q (By Mr. Rosenberg) The plan itself says

16 150 tons, would you be prepared to testify that

17 that plan would remove 150 tons?

18 A I can't testify to the feasibility of

19 that plan, that would be someone else.

20 Q Would you turn to page 30, paragraph W.

21 MR. EARL: Just a second, counselor.

22 W?

23 MR. ROSENBERG: W.

24 MR. EARL: You're on page 30.

25 MR. ROSENBERG: Yes.

Page 199

1 MR. EARL: W, right?

2 MR. ROSENBERG: Isn't that paragraph W

3 there?

4 MR. EARL: Yes.

5 Q (By Mr. Rosenberg) Is that something

6 you will testify to?

7 A No, I wouldn't testify to any

8 requirement of Florida law.

9 Q What about funding assumptions, do you

10 know what is meant by funding assumptions?

11 A Not specifically here, as it's used

12 here.

13 Q Look at paragraph Y. Is that something

14 you would testify to?

15 A I wouldn't expect to.

16 Q Okay.

17 Sir, the notice of deposition duces

18 tecum requested you to produce certain

19 documents, and I see you have 12 boxes here.

20 Can you go through some of the items here, can

21 you look through the paragraphs with me and can

22 you tell me what was produced, to the best of

23 your knowledge?

24 A I can't give you specifics. What we

25 did is that it was such a broad request,

Page 200

1 anything that had to do at all with those

2 topics that I could determine, we tried to

3 produce. If I erred, I erred on the side of

4 producing too much.

5 I believe those documents are laid out

6 in that box based on the paragraphs that they

7 respond to.

8 Q So paragraph 1, which is: Provide all

9 documents that explain and describe EAA

10 agricultural practices, including but not

11 limited to the agricultural practices of the

12 Florida Sugar Cane League. That's been

13 designated in a specific box, or how has that

14 been categorized?

15 A I think each of the boxes have notes on

16 them as to which question they are responding

17 to.

18 Q Carton 5; 1, 3, 5, 6 and 9?

19 A That's correct.

20 Q And box 6; 1, 3, 5, 6 and 9?

21 MR. EARL: Counsel, that's the problem

22 the witness is talking about, these

23 requests are so broad there's a lot of

24 overlap.

25 Q (By Mr. Rosenberg) My question was

Page 201

1 where it has those numbers on there it would

2 respond to those items, of which one document

3 may be responding to four different item

4 requests; am I correct?

5 A That's possible. That's possible.

6 There could be a document in there that

7 responds to more than one question on the

8 request for document production.

9 Q I haven't gone through each box. If I

10 can direct your attention to paragraph 7 here.

11 Where are the documents furnished regarding

12 paragraph 7?

13 A I don't know, but I can go over and

14 look on a box if you want me to.

15 Q Would you? I just have a few questions

16 here. I don't mean to --

17 MR. EARL: Want to bring the boxes

18 over, counsel?

19 MR. ROSENBERG: I don't want to bring

20 12 boxes over.

21 You're talking about 7, I want to know

22 if they have these documents and if they

23 furnished them. I'm not asking much more

24 than that.

25 If they have documents on fertilizer

Page 202

1 application, crop mix, crop rotation, soil

2 depth, are those documents that he knows

3 that have been produced. He may well tell

4 me we don't have those documents at the

5 League. I don't know.

6 A (By the Witness) What I'm telling you,

7 if it's here, it's in one of those 12 boxes

8 over there. I can't tell you specifically

9 which box it's in or -- specifically, because I

10 don't recall. There's 12 boxes.

11 Q I'm not asking you a specific box, are

12 there items in the boxes that would respond to

13 paragraph 7? As far as you know.

14 A If we had documents that responded to

15 paragraph 7 it would be marked.

16 Q That's what I'm asking, did you have

17 any?

18 A What I'm telling you is I don't know

19 unless you want me to look at each one of them.

20 I don't recall.

21 Q I don't see any markings on top of box

22 8. Did you mark them on the top of every box?

23 Or inside the lid?

24 MR. EARL: Some of them have markings

25 on the side, also.

Page 203

1 Q (By Mr. Rosenberg) This is box 2, and

2 box 8. Are there any markings on box 8?

3 MR. EARL: Part of the problem this had

4 to be taken out to a copy service, and they

5 were working on this late last night.

6 MR. RUSSELL: I think this just

7 corresponds with those. It should probably

8 say the same as these, we tried to keep

9 them separated.

10 MR. ROSENBERG: I can see responses to

11 1, 3, 5, 6, 9 now in front of me we have 2,

12 4, 7.

13 In box 2. Okay. Is there anything

14 that --

15 There's nothing that corresponds to

16 paragraph 10, am I correct?

17 MR. EARL: I believe that's correct.

18 MR. ROSENBERG: And items 2, 4, 7, 8,

19 11, 13, and 14 are all contained in box 2

20 only; is that correct?

21 MR. EARL: I don't know. What do the

22 rest of the boxes say?

23 MS. SOLOMON: The other boxes say 1, 3,

24 5, 6 and 9.

25 MR. ROSENBERG: Except for this box,

Page 204

1 box 8 which says nothing.

2 MR. RUSSELL: I think it didn't get

3 marked.

4 MR. ROSENBERG: Do you know what is in

5 box 8?

6 MR. RUSSELL: Yes, the same as those.

7 MR. ROSENBERG: The same as 1, 3, 5, 6

8 and 9.

9 MR. ROSENBERG: Well, I would like a

10 recess, it's ten to four, because I would

11 like to go through at least this box at

12 this point.

13 What's your pleasure?

14 MR. EARL: We got one more day, you can

15 decide.

16 MR. ROSENBERG: All right. I have got

17 all these boxes here. I will adjourn this

18 thing for now and we will back tomorrow

19 morning. By that time I will have had a

20 chance --

21 MR. EARL: Let me also clarify that Mr.

22 Rackley --

23 MR. ROSENBERG: Off the record.

24 (Whereupon, an off the record

25 discussion was had.)

Page 205

1 MR. ROSENBERG: Mr. Rackley, before we

2 talked about the boxes, I asked you

3 regarding your testimony, the areas

4 regarding your testimony. Is there any

5 area regarding your testimony that you know

6 that you are going to testify to now that I

7 haven't asked you about?

8 A (By the Witness) I don't think there is

9 anything, at least today. That doesn't mean

10 there won't be something later on.

11 MR. ROSENBERG: All right.

12 (Whereupon, an off the record

13 discussion was had.)

14 MR. EARL: Counsel, we are prepared --

15 as you know Mr. Rackley is here, he's going

16 to be here tomorrow, we are prepared to go

17 later if you would like to, and start the

18 documents tomorrow. It's your option.

19 MR. ROSENBERG: I think I told you

20 earlier that I didn't feel well and I was

21 having a reaction to asthma and asthma

22 medication. I think you have seen me at

23 least once, maybe twice I took some

24 Tylenol, so I'm not feeling very well.

25 MR. EARL: Okay, counsel, that's

Page 206

1 agreeable.

2 Now, the only thing I would ask here is

3 that I have gone through this box 2, and I

4 have responses to every paragraph on a

5 duces tecum except for 7, item 7. I would

6 simply ask Mr. Rackley to look at that and

7 to tell me whether there are responses to

8 item 7 or whether there are not.

9 MR. RUSSELL: You don't have any to 10.

10 Now, I believe you got most of those

11 documents, the settlement agreement, and

12 there were thousands of pages that were

13 produced by the state agencies.

14 MR. EARL: And also the secret

15 settlement agreement that --

16 MR. ROSENBERG: I'm not quarreling with

17 10.

18 MR. EARL: We are just telling you we

19 are not producing any, but you have those.

20 Look, you have some of those that we don't

21 have access to.

22 MR. ROSENBERG: I had not seen 7, I

23 just wanted that pointed out to me.

24 MR. RUSSELL: It was underneath 4.

25 MR. EARL: Okay, counsel, we understand

Page 207

1 your condition and we'll adjourn at your

2 request.

3 MR. ROSENBERG: Let me ask him one or

4 two more questions. I'm holding a box of

5 something, what is this?

6 MR. RUSSELL: There it is. Right

7 there. It says right there, Hutcheon data.

8 MR. ROSENBERG: Okay.

9 MR. EARL: It goes with the Hutcheon

10 documents. These are duplicates of slides

11 of one of his presentations.

12 MR. ROSENBERG: Okay. Having said

13 that, I will see you here tomorrow. I

14 don't think -- we are off the record.

15 (Whereupon, an off the record

16 discussion was had.)

17 MR. ROSENBERG: Okay. Let the record

18 reflect I'm offering you to be here at ten,

19 you can come at nine. It's your call.

20 MR. EARL: At your urging we will be

21 here at ten.

22 MR. ROSENBERG: We'll do it at nine.

23 (Whereupon, an off the record

24 discussion was had.)

25 MR. EARL: Okay. Thank you. We'll see

Page 208

1 you tomorrow morning at nine.

2 (Whereupon, the deposition was

3 adjourned at 4:00 p.m.)

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