187

1 DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA

SUGAR CANE GROWERS COOPERATIVE )

3 OF FLORIDA; ROTH FARMS, INC.; and)

WEDGWORTH FARMS, INC., )

4 Petitioners, ) DOAH Case No.

vs. ) 92-3038

5 )

SOUTH FLORIDA WATER MANAGEMENT )

6 DISTRICT, an agency of the State ) VOLUME II

of Florida; et al., )

7 Respondents. )

_________________________________

8 FLORIDA SUGAR CANE LEAGUE, INC..;)

UNITED STATES SUGAR CORPORATION; )

9 and NEW HOPE SOUTH, INC., )

Petitioners, ) DOAH Case No.

10 ) 92-3039

vs. )

11 )

SOUTH FLORIDA WATER MANAGEMENT )

12 DISTRICT, an agency of the State )

of Florida; et al., )

13 Respondents. )

_________________________________

14 FLORIDA FRUIT AND VEGETABLE )

ASSOCIATION; LEWIS POPE FARMS; )

15 W.E. SCHLECHTER & SONS, INC., )

and HUNDLEY FARMS, INC., )

16 Petitioners, ) DOAH Case No.

) 92-3040

17 vs. )

)

18 SOUTH FLORIDA WATER MANAGEMENT )

DISTRICT, an agency of the State )

19 of Florida; et al., )

Respondents. )

20 _________________________________

DEPOSITION OF HANLEY K. SMITH

21 Taken before Barbara Bolton,

Registered Professional Reporter and Notary

22 Public in and for the State of Florida at large,

pursuant to Notice of Taking Deposition filed in

23 the above cause.

- - -

24 Tuesday, March 2, 1993

319 Clematis Street

25 West Palm Beach, Florida

9:00 A.M. - 4:40 P.M.

188

1 - - -

APPEARANCES:

3 ON BEHALF OF THE PETITIONERS FLORIDA

SUGAR CANE LEAGUE, INC., UNITED STATES

4 SUGAR CORP., AND NEW SOUTH HOPE, INC.:

5 PEEPLES, EARL & BLANK, P.A.

ONE BISCAYNE TOWER, SUITE 3636

6 TWO SOUTH BISCAYNE BOULEVARD

MIAMI, FLORIDA 33131

7 BY: WILLIAM L. EARL, ESQUIRE

9 ON BEHALF OF THE INTERVENOR, UNITED STATES OF

AMERICA, DEPARTMENT OF Justice

DEPARTMENT OF Justice

11 155 S. MIAMI AVENUE

MIAMI, FLORIDA 33130

12 BY: THOMAS A. W. FITZGERALD, ESQUIRE

13 Also present: Kim McNally, Legal Assistant

15 I N D E X

16 WITNESS DIRECT CROSS REDIRECT RECROSS

17 HANLEY K. SMITH

18 BY MR. EARL 194

20 E X H I B I T S

21 PLAINTIFF'S

NUMBER DESCRIPTION PAGE

12 "EFFECT OF GRASS CUTTING BELOW

23 STRUCTURES 12(B,C, AND D)" 250

24 13 "EVERGLADES SWIM PLAN" VOLUME III,

TECHNICAL REPORT, PART B 272

189

1 14 AGENDA, PRESENTATION OF SCIENTIFIC

BACKGROUND OF THE LOX/EVER LAWSUIT,

2 JANUARY 26, 1990 272

3 15 EVERGLADES NATIONAL PARK MONITORING

PROGRAM DATED JANUARY 15, 1987 272

16 LETTER DATED DECEMBER 11, 1989 TO

5 HANLEY K. SMITH FROM WILLIAM W.

WALKER, JR. 272

17 ROUTING AND TRANSMITTAL SLIP DATED

7 SEPTEMBER 14, 1989 TOGETHER WITH

LETTER DATED SEPTEMBER 12, 1989 TO

8 JOHN R. WODRASKA FROM JAMES L.

GARLAND 272

18 LETTER DATED SEPTEMBER 7, 1989 TO

10 MR. JOHN R. WODRASKA FROM JAMES L.

GARLAND 272

19 HANDWRITTEN NOTES 272

20 STATISTICAL ANALYSIS OF ENP

13 HISTORICAL WATER QUALITY DATA 272

14 21 MEMORANDUM FOR THE RECORD DATED

MARCH 13, 1990 BY PETE MILAM AND

15 HANLEY K. SMITH 272

16 22 REPORT OF HANLEY K. SMITH 272

17 23 FAX TRANSMITTAL DATED 10/11/90 TO

JOHN MOULDING FROM DEWEY WORTH 272

24 LISTED OF SUGGESTED CORRECTIONS 272

25 MEMORANDUM FOR RECORD DATED APRIL

20 9, 1990 FROM HANLEY K. SMITH 272

21 26 ROUTING AND TRANSMITTAL SLIP DATED

SEPTEMBER 1, 1989 TO BO FROM

22 MCADAMS TOGETHER WITH ENVIRONMENTAL

RESOURCES RESPONSES TO SFWMD

23 EVERGLADES SWIM PLAN 272

24 27 HALF PAGE MEMO CONTAINING

RECOMMENDATIONS FROM "BO" 272

190

1 28 MEMORANDUM FOR RECORD DATED APRIL

9, 1990 FROM HANLEY K. SMITH 272

29 REPORT OF HANLEY K. SMITH 272

30 MEMORANDUM DATED MARCH 1, 1990 TO

4 CONSTANCE B. HARRIMAN, JUANA S.

WILCHER, JOHN S. DOYLE, JR. GREER

5 C. TIDWELL AND DEXTER W. LEHTINEN

FROM RICHARD B. STEWART 272

31 MEMORANDUM DATED MARCH 1, 1990 TO

7 CONSTANCE B. HARRIMAN, JUANA S.

WILCHER, JOHN S. DOYLE, JR. GREER C.

8 TIDWELL AND DEXTER W. LEHTINEN FROM

RICHARD B. STEWART 272

32 HANDWRITTEN COVER SHEET TO SAM

10 COWAN AND EDDIE SALEM FROM LET

MON LEE TOGETHER WITH COMMENTS OF

11 THE UNITED STATES TO FLORIDA DER ON

THE SWIM PLAN FOR THE EVERGLADES 272

33 FAX TRANSMITTAL TO DR. RON JONES

13 FROM STEVEN A. HERMAN DATED MAY

29, 1990 ATTACHING MEMORANDUM DATED

14 MAY 29, 1990 TO CONSTANCE B. HARRIMAN,

LA JUANA S. WILCHER, DR. G. EDWARD

15 DICKEY, GREER C. TIDWELL AND DEXTER

W. LEHTINEN FROM STEVEN A. HERMAN 272

34 MEMORANDUMD DATED JUNE 1, 1990 TO

17 CONSTANCE B. HARRIMAN, LA JUANA S.

WILCHER, DR. G. EDWARD DICKEY, GREER

18 C. TIDWELL AND DEXTER W. LEHTINEN

FROM RICHARD B. STEWART 272

35 FAX TRANSMITTAL TO EDDIE SALEM AND

20 JOHN BURNS FROM LET MON LEE TOGETHER

WITH MEMORANDUM FOR THE DIRECTOR OF

21 CIVIL WORKS FROM ROBERT W. PAGE 272

22 36 FOUR PAGES CONTAINING GRAPHS 272

23 37 LETTER DATED DECEMBER 22, 1989 TO

MIKE SOUKUP FROM THOMAS K.

24 MAC VICAR 272

191

1 38 LETTER DATED SEPTEMBER 15, 1989

TO JOHN WODRASKA FROM DAVID L.

2 FERRELL 272

3 39 401 STA AURAS STATISTICAL SUMMARY

FOR WATER QUALITY WITH STATISTICS

4 DATED DECEMBER 21, 1989 272

5 40 LETTER DATED JANUARY 9, 1990 TO

COLONEL BRUCE A. MALSON FROM DALE

6 TWACHTMAN 272

7 41 MATERIAL REGARDING EVERGLADES

AGRICULTURAL AREA - MAJOR CANALS AND

8 PUMPING STATIONS 272

9 42 DOCUMENT FROM A.A. FISIKELLI,

EVERGLADES COORDINATING COUNCIL,

10 RE RECOMMENDATIONS REGARDING PLAN 272

11 43 LETTER DATED SEPTEMBER 13, 1989 TO

PETE RHOADS FROM STEVE TERRY 272

44 INTEROFFICE MEMORANDUM DATED SEPTEMBER

13 12, 1989 TO PEGGIE MATHEWS FROM HERBERT

H. ZEBUTH 272

45 LETTER DATED SEPTEMBER 12, 1989 TO

15 JOHN R. WODRASKA FROM JAMES L.

GARLAND 272

46 LETTER DATED SEPTEMBER 6, 1989 TO

17 JOYCELYN BRANSCOME FROM BURKETT S.

NEELY, JR. 272

47 LETTER DATED SEPTEMBER 11, 1989 TO

19 JOHN R. WODRASKA FROM THE UNITED STATES

DEPARTMENT OF THE INTERIOR 272

48 LETTER DATED SEPTEMBER 12, 1989 TO

21 PETE RHOADS FROM ANTHONY J.

CLEMENTS 272

49 LETTER DATED SEPTEMBER 14, 1989

23 TO PETER RHOADS FROM H.J. WOODWARD 272

24 50 MEMORANDUM DATED SEPTEMBER 13, 1989 TO

JOHN R. WODRASKA FROM FRANK LUND 272

192

1 51 EVERGLADES SWIM PLAN PUBLIC MEETINGS

SUMMARY 272

52 EVERGLADES SWIM ADVISORY COMMITTEE

3 MEETING, SEPTEMBER 6, 1989 272

4 53 ROUTING AND TRANSMITTAL SLIP DATED

SEPTEMBER 25, 1989 TO BO SMITH FROM

5 RON HILTON 272

6 54 LETTER DATED SEPTEMBER 21, 1989 TO

SWIM PLAN ADVISORY COMMITTEE MEMBERS

7 FROM JOYCELYN BRANSCOME 272

8 55 ARTICLE FROM PALM BEACH POST OF

DECEMBER 13, 1989 272

56 ARTICLE FROM SUN-SENTINEL OF DECEMBER

10 13, 1989 272

11 57 LIST OF GOVERNING BOARD MEMBERS 272

12 58 REPORT OF HANLEY K. SMITH 272

13 59 LIST OF RECOMMENDATIONS 272

14 60 401STA AURAS STATISTICAL SUMMARY

FOR WATER QUALITY WITH STATISTICS

15 DATED JANUARY 17, 1990 272

16 61 ROUTING AND TRANSMITTAL SLIP DATED

APRIL 19, 1990 TO LLOYD PIKE, BO

17 SMITH, STU APPELBAUM, LEWIS HORNING

AND CAROL WHITE FROM RON HILTON 272

62 MEMORANDUM RE DEPARTMENT OF THE

19 INTERIOR'S PROPOSED SOLUTION 272

20 63 ROUTING AND TRANSMITTAL SLIP DATED

MAY 3, 1990 TO BO SMITH FROM RON

21 HILTON 272

22 64 ROUTING AND TRANSMITTAL SLIP DATED

SEPTEMBER 1, 1989 TO "BO" FROM

23 "MCADAMS" 272

24 65 LIST OF RECOMMENDATIONS 272

25 66 MEMORANDUM DATED JANUARY 9, 1990

RE ENP DATA ANALYSIS, WILLIAM

193

1 WALKER 272

2 67 HANDWRITTEN NOTES 272

3 68 MAP 284

4 69 FINAL ENVIRONMENTAL IMPACT

STATEMENT 326

8 - - -

194

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

2 - - -

3 THEREUPON,

4 HANLEY K. SMITH,

5 being by the undersigned Notary Public first duly

6 sworn, was examined and testified as follows:

7 THE WITNESS: I do.

8 DIRECT EXAMINATION CONTINUED

9 BY MR. EARL:

10 Q. Dr. Smith, does your job require you

11 to be knowledgeable regarding factors that affect

12 Everglades vegetation successions and dynamics in

13 the Everglades?

14 A. That is a desirable attribute of my

15 job. It would not be required. It would not be

16 an element that you would check off if you were

17 hiring someone in my position. I'm essentially a

18 manager.

19 Q. Are you familiar with factors that

20 affect Everglades vegetation dynamics?

21 A. I'm familiar with factors that

22 affect vegetation dynamics. I have not done,

23 personally done research in the Everglades.

24 Q. But you've reviewed studies and

25 talked with your peers about the Everglades

195

1 vegetation, have you not?

2 A. Yes.

3 Q. Are you familiar with Everglades

4 wildlife and the factors that affect their

5 population trends?

6 A. Familiar is a relative term.

7 Relative to the rest of the population, certainly

8 I'm very familiar. Relative to those who are

9 professional biologists working in the

10 Everglades, I am not as familiar, but I'm

11 certainly a knowledgeable individual in that

12 area. I'm not an expert if I can draw that

13 distinction.

14 Q. Again, you have reviewed studies and

15 talked to your peers about factors affecting

16 Everglades wildlife. Correct?

17 A. Yes.

18 Q. How about rainfall quantity and

19 quality in the Everglades? Do you have any

20 knowledge of that?

21 A. Very limited knowledge. I've read

22 one or two -- I've read a little bit, though I

23 don't recall where, on atmospheric sources of

24 phosphorus if that's what you're getting at.

25 Basically I know enough about that to know that

196

1 it's not -- that itself is not a well-quantified

2 science.

3 Q. You're familiar with the several

4 purposes of the project, are you not?

5 A. Yes.

6 Q. Have you ever had your deposition

7 taken before?

8 A. I had my deposition taken a number

9 of years ago.

10 Q. Just once?

11 A. Yes.

12 Q. And what was the circumstance of

13 that deposition?

14 A. It was a lawsuit regarding a

15 reservoir in Missouri. That was about 1976.

16 Q. Is that the only other time you've

17 had a deposition taken other than today?

18 A. I believe so. I've answered

19 interrogatories from time to time.

20 Q. What were the issues in the Missouri

21 reservoir? What was your purpose in testifying?

22 A. The issues were the adequacy of the

23 environmental impact statement for the Merrimack

24 Park Reservoir.

25 Q. And you were testifying on behalf of

197

1 whom?

2 A. The Corps of Engineers.

3 Q. Have you ever testified in a court-

4 room?

5 A. No.

6 Q. Have you ever qualified as an expert

7 witness in any forum or proceeding?

8 A. No.

9 Q. What, if any, professional papers

10 have you presented, prepared or published?

11 A. A number but not on this issue,

12 however. I have probably published thirty or

13 forty papers.

14 Q. And what's the most recent?

15 A. Many of these were published as a

16 result of my working at the Waterways Experiment

17 Station and constitute what's called gray

18 literature.

19 Q. Constitute gray literature?

20 A. They constitute what's called the

21 gray literature as opposed to the refereed

22 literature. The most recent refereed paper I've

23 published was probably in the seventies. The

24 most recent paper in the government literature

25 probably about '85.

198

1 Q. And what did you publish in '85?

2 A. I put out a lot of publications. I

3 don't have my list of publications. I can tell

4 you the subject would have been habitat

5 development on dredged material, marsh creation.

6 In fact, the most recent thing I put out was an

7 instructional video which I count as a

8 publication. And that was about 1987. An

9 instructional video on how to build marshes.

10 Q. I noticed your CV did not have a

11 list of publications. Was there a reason you did

12 not include them?

13 A. They're not pertinent to my present

14 job.

15 Q. Do you have a list of your

16 publications?

17 A. I have a list somewhere, not with

18 me.

19 Q. Okay. Could you make that available

20 to us?

21 A. Surely. We're talking about lizard

22 movements and sumac in Northern Michigan.

23 Q. Whatever there is.

24 A. And squirrels' food habits.

25 Q. Whatever is on the list.

199

1 A. Nothing that relates to South

2 Florida.

3 Q. How many refereed articles have you

4 prepared?

5 A. Probably three or less. Two or

6 three I know for sure. I'm not sure about the

7 third.

8 Q. Where were the two published?

9 A. One was published by the Texas Parks

10 and Wildlife Department, and the other was

11 published by the I think West Virginia Department

12 of Fish and Game. I'm not sure about the name.

13 It's been a long time. And another was published

14 by the Journal of Southwestern Naturalists.

15 Q. And what were the papers that

16 were -- what were the other journals, Texas Parks

17 and Wildlife, do they have a journal?

18 A. That's a separate what they call an

19 incidental paper. And the West Virginia, I don't

20 remember the West Virginia publication, the name

21 of the publication. Again, I suspect it was an

22 occasional paper. It was a chapter in a book,

23 that particular one. The Southwestern Naturalist

24 was a study of activity of lizards.

25 Q. On spoil material?

200

1 A. No, this is before I became a Corps

2 biologist.

3 Q. The chapter in the book from West

4 Virginia, what was that chapter on?

5 A. On the ecology of a plant called

6 staghorn sumac.

7 Q. Is that commonly known as poison

8 sumac?

9 A. No.

10 Q. That's not indigenous to the

11 Everglades?

12 A. There are sumacs in this area. I

13 would be very surprised to find it in the

14 Everglades. It's an uplands plant.

15 Q. And Texas Parks and Wildlife, what

16 was that?

17 A. Food habits of gray squirrels.

18 Q. Any of your publications relate to

19 or papers, thirty or forty, relate to any

20 component or species that is a component of

21 Everglades ecology?

22 A. There would be species mentioned,

23 shore birds and sea birds that live on dredged

24 material or live on newly created marshes that

25 occur in the Everglades, but it was not -- it

201

1 would be an incidental concern. None of the

2 species of major concern in the Everglades would

3 have been covered in my paper.

4 Q. Have you got any papers in process

5 that you're planning?

6 A. No.

7 Q. Have you presented any studies,

8 seminars, presentations of any kind within the

9 government regarding Everglades issues over the

10 last ten years?

11 A. Yes, in symposia and such may or may

12 not have been published as proceedings. It could

13 have been just the sort of thing what are we

14 doing, what is the Corps of Engineers doing in

15 South Florida kind of a paper. I've given a

16 number of papers of that sort at technical

17 conferences. As to whether or not I published

18 them in the proceedings, sometimes there isn't a

19 proceedings and sometimes -- I'm not as concerned

20 with building a publication list as I once was.

21 It's no longer a part of my life. So I might or

22 might not have provided a transcript.

23 Q. Well, apart from papers, apart from

24 publication, what presentations, seminars on

25 Everglades have you participated in the last

202

1 three years?

2 A. I've given a paper to a group of

3 Corps environmentalists from across the country

4 on the subject of endangered species in the

5 Everglades, and in particular the conflict

6 between the Park Service and the Fish and Wild

7 Life Service covering Snail Kite.

8 Q. When was that?

9 A. That was in I'm going to guess May

10 of '90.

11 Q. '90?

12 A. Yes.

13 Q. Okay. And what other --

14 A. That was given in Vicksburg. I've

15 given a paper to the Florida Association of

16 Environmental Professionals on restoration of the

17 Everglades. That was in Jupiter. What's the

18 name of the beach that's right up here by, ten

19 miles, Jupiter?

20 Q. Jupiter, Hobe Sound?

21 A. The Holiday Inn there, I mean the

22 Hilton. I can't remember what the town was.

23 Q. Riviera Beach?

24 A. It's right on the county line, West

25 Palm Beach county line, whatever town that is.

203

1 That would have been about 1991. I've given a

2 paper to the Florida Association of Environmental

3 Professionals in Jacksonville on the Kissimmee

4 which is out of our concern here. I prepared but

5 did not deliver a paper in Tampa in '91 on the

6 Everglades, on the restoration of the hydrologic

7 system in the Everglades. And that was to the

8 I'm going to say Association of Wetland

9 Managers. I've conducted seminars at

10 Jacksonville University on three or four

11 occasions on the general subject of the

12 restoration of the Everglades.

13 Q. What's the latest such seminar?

14 A. November of last year, November of

15 '92.

16 Q. And did you prepare course materials

17 for that?

18 A. No, it was just a lecture.

19 Q. Whose class were you lecturing in,

20 what professor?

21 A. Swenson.

22 Q. First name?

23 A. Janice. Janice Swenson. The course

24 was Human Ecology. These don't make a big

25 impression on me when I give them. They're

204

1 not -- as I said, this aspect of presenting

2 papers was once very much a part of my life.

3 It's no longer. It's just something I do as a

4 favor for a friend or as a professional

5 obligation. It's not something that I spend a

6 great deal of time with. I throw some slides

7 together and stand up and talk.

8 Q. Any other than you've mentioned that

9 you recall, any other seminars, presentations,

10 papers?

11 A. Yes, I gave a paper at the American

12 Society of Civil Engineers, their national

13 convention in Orlando, on restoration of water

14 conservation area -- of Shark River Slough and of

15 Taylor Slough, and that was October in probably

16 '91. That was a more formal affair, and I

17 probably have a publication as a result of that.

18 Q. Where would that be, in the Journal

19 of the --

20 A. It would be proceedings of the

21 whatever, ASC, American Society of Civil

22 Engineers annual meeting. I say again there was

23 a time in my life when I ticked these off and

24 counted them very carefully because they were a

25 part of my professional career but really very

205

1 incidental to my job at this time.

2 Q. Any others that you can recall at

3 this time?

4 A. Not that come to mind. I did give a

5 paper at the -- a presentation to the Audubon

6 Society Special Task Force on single species

7 versus multiple species management, single

8 species versus habitat management in Northeast

9 Shark River Slough.

10 Q. When was that?

11 A. It would have been about October,

12 '91. Oh, boy, that's a stretch. I mean I

13 can't -- I really don't --

14 Q. Okay. And that was again the

15 conflict between the Fish and Wildlife Service

16 and the Park Service?

17 A. Yes.

18 (A brief recess is taken.)

19 MR. EARL: Let the record reflect we

20 have adjourned for approximately fifty minutes

21 here while the witness has reviewed files which

22 were Fed-Exed to him after we spent substantial

23 part of yesterday afternoon inquiring as to what

24 documents had not been produced pursuant to his

25 personal request for production. We also started

206

1 the deposition at eleven o'clock at the request

2 and convenience of the witness yesterday.

3 MR. FITZGERALD: I think I should

4 note that the agreement was just for the

5 convenience of the witness was to start initially

6 at ten-thirty, although it's certainly good that

7 we did not plan to start till eleven, but I was

8 informed by your office that they desired to push

9 that back even further because I did have an

10 option of having the witness catch an earlier

11 flight and when it became mutually agreeable for

12 eleven I --

13 MR. EARL: He wasn't here till

14 eleven in any event.

15 MR. FITZGERALD: Right.

16 BY MR. EARL:

17 Q. Okay. You've gone through a file

18 which was Fed Exed to you from your office, and

19 what documents do you have there responsive to

20 your request for production that was previously

21 served upon you personally, sir?

22 A. I would just provide these

23 documents. I don't have copies.

24 MR. FITZGERALD: This is a single

25 set. Anything you wish to make a part of the

207

1 record we're going to need to duplicate.

2 MR. EARL: Okay. Let the record

3 reflect the witness is now handing me a manila

4 file entitled Everglades SWIM.

5 BY MR. EARL:

6 Q. What is this file that you just

7 handed me, sir?

8 A. This is a file which I -- once the

9 information started flowing in IN a fairly

10 voluminous manner, I simply, and once people

11 started asking for it, I just put it in my lower

12 right-hand drawer IN A file marked Everglades

13 SWIM. Everything that came in that dealt with

14 that went into that file. I've produced, it

15 appears, two memos that would have been filed

16 elsewhere. Most of these memos are copies of --

17 most of the things in here are copies of --

18 they're copies of inter-office correspondence.

19 For example, if you were in my office and you had

20 asked for I want your comments on the SWIM Plan

21 by this evening, I would have written it out on a

22 piece of paper and handed it to you. That would

23 never have gone into the file, just simply

24 because it bypasses that process, not on purpose,

25 just simple.

208

1 Q. Okay. After, and we'll go through

2 this file now, after consulting with counsel over

3 the last fifty minutes, have you deleted or

4 withdrawn any documents from the file that was

5 sent down from your office?

6 A. Yes.

7 Q. How many such documents?

8 MR. FITZGERALD: I would estimate,

9 counsel, perhaps 20 to 25.

10 MR. EARL: I need the witness to

11 tell me how many.

12 A. I'd guess 20 to 25.

13 Q. And why were those withdrawn?

14 A. Because they involved correspondence

15 or discussions of meetings with attorneys in our

16 office or with the Justice Department.

17 MR. EARL: Counsel, can we, without

18 disclosing the contents of those, would you

19 describe to me the date, author and subject

20 matter of those withdrawn documents.

21 MR. FITZGERALD: I will in the

22 privilege letter that I plan to send you. I

23 won't now because that has not been the practice

24 in the case so far and has not been the practice

25 of your firm thus far despite my efforts to get

209

1 privileged letters either concurrently or in

2 advance rather of depositions after the agreement

3 reached at an all counsel meeting in Tallahassee

4 over two months ago. I don't think there's any

5 purpose served in going document by document

6 through at this juncture.

7 MR. EARL: You have the documents,

8 you have just taken them from a file that the

9 witness has produced. I think it will save

10 everybody's time and further inconvenience or the

11 witness having further to be deposed on these

12 documents if you can identify them now, and we

13 would then know clearly if they're privileged

14 from that indication, we wouldn't have to pursue

15 them further. Would you be willing to do that in

16 the interests of saving time and effort here?

17 MR. FITZGERALD: I think that's not

18 unreasonable. There may be some duplication

19 because there are some duplicate documents. The

20 first document is a memorandum, subject SWIM/ONRW

21 Task Group dated 9 April, 1990.

22 MR. EARL: To who is that directed,

23 sir?

24 MR. FITZGERALD: It does not have a

25 specific recipient.

210

1 MR. EARL: Does it have an author?

2 MR. FITZGERALD: The only

3 indication -- well, Mr. Smith is indicated as the

4 author.

5 MR. EARL: And is there any

6 indication privileged and confidential on the

7 face of that or --

8 MR. FITZGERALD: No. I mean it's

9 not stamped or annotated in some fashion.

10 MR. EARL: And the privilege

11 asserted for that is what, counsel,

12 attorney-client?

13 MR. FITZGERALD: The privilege

14 asserted for that is that -- may I see your file

15 there for a moment?

16 MR. EARL: Sure.

17 MR. FITZGERALD: I'm sorry, counsel,

18 that was in error. That document was in fact

19 provided. I picked up the -- started with the

20 wrong set of documents.

21 THE WITNESS: Those are duplicates.

22 MR. FITZGERALD: Yeah, that's a

23 duplicate of a document you actually in fact have

24 in the file.

25 MR. EARL: Okay.

211

1 MR. FITZGERALD: The first is an

2 undated document, two-page document, the title is

3 Biological Opinion, (BO) Modified Water Delivery

4 to Everglades National Park.

5 MR. EARL: Is there any indication

6 of author?

7 MR. FITZGERALD: No.

8 MR. EARL: Is there any indication

9 of purpose or any title other than what you've

10 just given us?

11 MR. FITZGERALD: That is the only

12 title on the two-page document, and the privilege

13 asserted is attorney-client.

14 MR. EARL: Is it directed to a

15 lawyer?

16 MR. FITZGERALD: It reviews

17 essentially the scope of a meeting and notes of a

18 meeting. It identifies the attorneys present and

19 the nature of the discussion amongst the parties,

20 reveals attorney thought processes and the

21 interaction with the clients.

22 MR. EARL: Does the body indicate

23 any -- I'm just trying to save the hearing

24 officer from an in camera inspection of this

25 stuff. Does the body indicate a date on it?

212

1 MR. FITZGERALD: A date?

2 MR. EARL: Yes, of the meeting.

3 MR. FITZGERALD: No, it doesn't.

4 The second document are handwritten notes, five

5 pages. I'll represent that the witness has

6 identified them as his notes of a meeting amongst

7 technical personnel, all of whom are identified,

8 and government attorneys, federal attorneys from

9 the Department of Justice and the United States

10 Attorney's Office. There is no date on the cover

11 page, but an internal page of the five pages

12 indicates 19 Dec., capital D-e-c for December, I

13 assume.

14 MR. EARL: Can the witness tell us

15 what the year of that is or do we know? Again,

16 it will save some --

17 THE WITNESS: This was very early,

18 probably '89. This is when the -- this was the

19 first planning meeting that was held at the

20 Federal Reserve, I believe. So that would have

21 been --

22 MR. FITZGERALD: Although it doesn't

23 have a subject line to indicate that it's a

24 planning meeting.

25 MR. EARL: That's helpful. The

213

1 hearing officer won't have to --

2 MR. FITZGERALD: Yes, and that is

3 attorney-client. Also deliberative process which

4 I understand you maintain a continuing objection

5 to as non-applicable.

6 MR. EARL: It doesn't exist in state

7 law.

8 MR. FITZGERALD: The next document

9 is dated 25 December, 1990. It's a memorandum,

10 subject U.S. versus SFWMD lawsuit - Comments on

11 Department of Interior's Proposed Remedies. And

12 it has multiple authors, Dorothy Boardman, Office

13 of Counsel, Jim Vearil, Engineering Division,

14 Louis Hornung, Project Management, and Bo Smith

15 Planning Division. The privilege asserted is

16 attorney-client. Miss Boardman is from Office of

17 Counsel.

18 MR. EARL: To whom is that directed

19 may I ask?

20 THE WITNESS: This is the office

21 that produced it. It's a memorandum.

22 MR. FITZGERALD: It's a memorandum

23 for record.

24 THE WITNESS: It would have been

25 sent to any party that was believed would have

214

1 been interested.

2 MR. FITZGERALD: The next

3 document --

4 MR. EARL: May I ask the witness a

5 question?

6 BY MR. EARL:

7 Q. Memorandum of records are for what

8 purpose are they generally prepared?

9 A. To complete a file. If you wish

10 to -- you attended a meeting and you wished it to

11 be part of the file, it simply is a way of

12 getting information into the file.

13 MR. FITZGERALD: The next document

14 is approximately nineteen pages. It's a fax

15 cover page and an enclosed document, both dated

16 May 18, 1990, originated by Steve Herman,

17 Esquire, Department of Justice, to Ron Hilton,

18 Army Corps of Engineers. The subject line of the

19 internal letter is Everglades/Loxahatchee

20 Litigation.

21 MR. EARL: To whom is that directed,

22 counsel?

23 MR. FITZGERALD: It's addressed, the

24 fax sheet to Ron Hilton. The internal letter

25 accompanying it is addressed to Dexter Lehtinen.

215

1 United States Attorney, Greer Tidwell of EPA,

2 Constance Harriman, Assistant Secretary, Fish,

3 Wildlife and Parks. LaJuana S. Wilcher,

4 W-i-l-c-h-e-r, Assistant Administrator for Office

5 of Water. And Dr. G. Edward Dickey, Acting

6 Principal Deputy Assistant Secretary of Army,

7 Civil Works from Steven Herman, Assistant Chief,

8 General Litigation Section, Department of

9 Justice.

10 The next document is a letter dated

11 November 28, 1989 to Dr. Smith from the

12 Department of Justice signed by Celia Campbell,

13 C-a-m-p-b-e-l-l - Mohn, M-o-h-n, the U.S.

14 Department of Justice, Land and Natural Resources

15 Division, regarding U.S. versus South Florida

16 Water Management District, et al Meeting of

17 Remedy Committee on Tuesday, December 19th.

18 The next document is a draft letter

19 addressed -- with no date addressed to the

20 Honorable Richard B. Stewart, Assistant Attorney

21 General, Land and Natural Resources Division,

22 U.S. Department of Justice, and has the signature

23 line below, although it's a draft and unsigned by

24 Robert W. Page, Assistant Secretary of the Army,

25 Civil Works. That is a four-page document.

216

1 MR. EARL: Topic, counsel?

2 MR. FITZGERALD: It has no topic

3 line.

4 MR. EARL: Can you tell us what the

5 topic is without disclosing the substance?

6 MR. FITZGERALD: It contains

7 comments and input from the Corps or from the

8 Department of the Army to Department of Justice

9 regarding a SWIM Plan draft dated April 11, 1990.

10 MR. EARL: And the basis of the

11 privilege on that one?

12 MR. FITZGERALD: Attorney-client.

13 MR. EARL: Next, please?

14 MR. FITZGERALD: Next is a two-page

15 document with a buck slip. The buck slip is

16 dated 24 May '90. It's addressed to six

17 different individuals and the sixth one being Dr.

18 Smith, the first being Lloyd Pike, Esquire,

19 Office of Counsel, Army Corps of Engineers,

20 Jacksonville District Office.

21 MR. EARL: Who else was that, sir?

22 MR. FITZGERALD: The others are Stu

23 Applebaum, Loren Hornung.

24 MR. EARL: Louis Hornung.

25 MR. FITZGERALD: Louis. I'm sorry.

217

1 Carol White and Eddie Salem.

2 BY MR. EARL:

3 Q. Let me ask the witness, are any of

4 the rest of these people other than Mr. Pike

5 lawyers with the Corps?

6 A. No, just Mr. Pike.

7 MR. EARL: And what's the topic of

8 this document, sir?

9 MR. FITZGERALD: The document

10 consists of a buck slip, a fax cover sheet and

11 then a draft letter to the Honorable Richard B.

12 Stewart, AAG, Land and Natural Resources

13 Division, Department of Justice, regarding draft

14 comments on the April 1990 Everglades SWIM Plan.

15 MR. EARL: Is it fair to assume

16 these are the draft comments from the District to

17 DOJ on the SWIM Plan?

18 MR. FITZGERALD: It's only a one-

19 page letter. The next document is a fax cover

20 sheet and one-page fax. It is addressed to Ron

21 Hilton from Steve Herman, Esquire, Department of

22 Justice, dated 6/5/90, and the enclosed letter is

23 dated 29 May, '90. A letter addressed to the

24 Honorable Richard B. Stewart, Assistant Attorney

25 General from G. Edward Dickey, Acting Principal

218

1 Deputy Assistant Secretary for Civil Works,

2 Department of the Army, regarding April, 1990

3 Everglades SWIM Plan.

4 MR. EARL: And the basis of that,

5 sir, privilege?

6 MR. FITZGERALD: The same, attorney-

7 client privilege.

8 MR. EARL: Unless you say otherwise,

9 these are attorney-client privilege.

10 MR. FITZGERALD: Yes.

11 MR. EARL: Okay.

12 MR. FITZGERALD: The next document I

13 believe is a duplicate but it's an approximately

14 nineteen-page fax and enclosure.

15 THE WITNESS: May I leave the room

16 at this time?

17 MR. EARL: If you want to take a

18 short break but I may need to clarify these.

19 Okay.

20 MR. FITZGERALD: That will give me a

21 chance to see if this other one is a duplicate.

22 THE WITNESS: Are we stopping while

23 I take a break?

24 MR. FITZGERALD: We have to. The

25 document I was about to identify I've already

219

1 identified. It's the original fax of an

2 identical document. None of them have any

3 annotations on them, but it is the letter

4 regarding Everglades/Loxahatchee litigation by

5 Steven Herman dated May 18, 1990.

6 MR. EARL: Okay. Dr. Smith, why

7 don't we let counsel, if you'll stay and counsel

8 finishes this brief pile of documents, you can

9 take a break and then I'll have a chance to

10 briefly look at the pile of non-privileged

11 information. Is that okay?

12 THE WITNESS: It seemed like a time

13 that would be -- that I wasn't needed but if I

14 have to be here, that's fine.

15 MR. FITZGERALD: The next document

16 is a fax cover page from the Department of

17 Justice. It's a five-page document to Ron Hilton

18 from Steven Herman, Esquire. The interior is --

19 at least the first page is a letter I mentioned

20 two documents ago to the Honorable Richard

21 Stewart from G. Edward Dickey dated 8 May 1990

22 regarding SWIM Plan comments, the April 11, 1990

23 version, and the attached documents are the

24 comments on that plan.

25 MR. EARL: Comments on the SWIM

220

1 plan, the five pages are?

2 MR. FITZGERALD: Well, there's a fax

3 cover page, a transmission cover letter and the

4 balance of the document are the actual SWIM Plan,

5 proposed SWIM Plan comments addressed to the

6 Department of Justice from the Department of the

7 Army.

8 The next document is dated 18 April,

9 1990. It's a memorandum, the subject Surface

10 Water Improvement and Management Plan for the

11 Everglades signed by Ronald E. Hilton. It's

12 addressed to Lloyd Pike, Office of Counsel, Dr.

13 Smith, Mr. Appelbaum, Louis Hornung and Carol

14 White. The enclosure is a three-page fax from

15 the Department of Justice from Steve Herman dated

16 April 17, 1990, and the subject line of the

17 enclosed letter is Everglades/Loxahatchee

18 litigation; Federal Comment on South Florida

19 Water Management District, the Second Draft Plan.

20 MR. EARL: I'm sorry. The date of

21 that memorandum, counsel, on the cover from Mr.

22 Hornung?

23 MR. FITZGERALD: The cover memo from

24 Mr. Hornung is 18 April, '90.

25 MR. EARL: Okay, sir.

221

1 MR. FITZGERALD: The next document

2 is a Department of Justice letter April 30, 1990

3 from Steven Herman, Esquire to Martin Cohen who's

4 Assistant Chief Counsel for Litigation of the

5 Army Corps of Engineers and James W. Sterling,

6 Deputy Division Counsel, Department of the Army.

7 South Atlantic Division Corps of Engineers in

8 Atlanta. The next document is captioned Research

9 Priorities to Support Everglades Case, W. Walker,

10 for U.S. Department of Justice, December 18,

11 1989.

12 MR. EARL: I'm sorry. Research

13 Priorities to Support Everglades Case.

14 MR. FITZGERALD: Yes.

15 MR. EARL: It's from William

16 Walker?

17 MR. FITZGERALD: It's W. Walker for

18 U.S. Department of Justice, December 18, 1989 is

19 the document caption.

20 The next document is a one-page

21 letter dated October 9, 1989 to Ron Hilton from

22 Steven A. Herman and Celia Campbell Mohn,

23 Attorneys for the Department of Justice,

24 regarding U.S. v. South Florida Water Management

25 District, et al, Meeting of Remedy Committee on

222

1 October 27, 1989.

2 The next document consists of three

3 pages, a facsimile cover sheet and two internal

4 sheets from Steven A. Herman, Esquire, Department

5 of Justice, dated January 10, 1990 to Dr. Smith,

6 Ron Hilton and Lloyd Pike, Esquire, Corps of

7 Engineers, Office of Counsel in Jacksonville.

8 The caption on the internal document is regarding

9 United States versus South Florida Water

10 Management District, Civil Number 88-1886-CIV -

11 Hoeveler.

12 The next document has a buck slip

13 dated 2/7/90 to Dr. Smith from OC which is the

14 symbol for Office of Counsel, and it is a

15 facsimile, nine pages to Mr. Lloyd Pike,

16 Esquire. The internal document is a DOJ letter

17 dated February 2, 1990 from Richard B. Stewart,

18 Assistant Attorney General, subject Everglades

19 Loxahatchee litigation. Four more documents.

20 The next is a two-page facsimile

21 with a separate cover page, subject Everglades

22 SWIM, releaser's signature Rod Worthington,

23 addressed to Lloyd Pike -- I'm sorry, Rich

24 Worthington to Lloyd Pike Esquire, Office of

25 Counsel. It's an internal document, it's a draft

223

1 letter undated to Richard Stewart, Assistant

2 Attorney General for signature of Robert W. Page,

3 Assistant Secretary of the Army Civil Works.

4 There is a handwritten date saying received OC,

5 that's Office of Counsel, 23 February, '90. And

6 the final page is captioned Technical Comments.

7 The next document is dated January

8 5, 1990. It's a memorandum to four or five

9 various people from Richard B. Stewart,

10 Department of Justice. Subject line is

11 Everglades Water Pollution Case, proposed United

12 States Position on SWIM Plan. The document is

13 stamped close hold. It's a three-page letter.

14 MR. EARL: Who are the addressees,

15 sir?

16 MR. FITZGERALD: Dexter Lehtinen,

17 United States Attorney, South District of

18 Florida, Greer Tidwell, Region IV Administrator,

19 Environmental Protection Agency, Connie Harriman,

20 Assistant Secretary, Fish, Wildlife and Parks,

21 Department of the Interior, LaJuana Wilcher,

22 that's L-a-J-u-a-n-a, Wilcher, Assistant

23 Administrator, Office of Water, Environmental

24 Protection Agency, and John Doyle, Junior,

25 Principal Deputy Assistant Secretary, Civil

224

1 Works, Department of the Army. And the internal

2 or the enclosed two-page document is captioned

3 Proposed Position of the United States on SWIM

4 Plan.

5 MR. EARL: Is there a date any place

6 on there?

7 MR. FITZGERALD: The cover letter is

8 dated January 5, 1990. The next document is a

9 nine-page facsimile addressed to Dr. Smith from

10 Geoff Garver, Esquire, Department of Justice,

11 Land and Natural Resources Division, dated

12 1/8/90. The internal document is a memorandum

13 from Mr. Garver to Steven Herman, Esquire,

14 Assistant Chief, General Litigation Section,

15 regarding U.S. et al. versus SFWMD et al - ONRW

16 Standards dated January 2, 1990.

17 The next document is dated 3 May

18 1990. It's a Xerox of a buck slip and an

19 accompanying four-page document. The buck slip

20 shows routing to Clay Sanders, Richard Bonner, Ed

21 Salem and Lloyd Pike, Esquire from Ron Hilton.

22 The interior is a draft letter to Richard

23 Stewart, Assistant Attorney General for signature

24 of Robert W. Page, Assistant Secretary of the

25 Army. Enclosure, Technical SWIM Plan Comments.

225

1 The final is a composite of four

2 documents. The first Corps of Engineers letter

3 dated January 19, 1990 to Steven Herman, Esquire.

4 MR. EARL: I'm sorry, counsel, the

5 date?

6 MR. FITZGERALD: January 19, 1990 to

7 Steven Herman, Esquire, Assistant Chief, General

8 Litigation Section, Department of Justice.

9 MR. EARL: Corps letter to Steve

10 Herman?

11 MR. FITZGERALD: Yes. Signed by

12 William D. Brown, Acting District Engineer.

13 MR. EARL: And the topic, sir?

14 MR. FITZGERALD: General comments

15 and specific comments on SWIM Plan volumes. The

16 second document --

17 MR. EARL: Could you just give me a

18 second, please?

19 MR. FITZGERALD: The second document

20 is in fact not privileged and is included in the

21 package you have. The next document is captioned

22 draft at the top handwritten, is dated February

23 21, 1990 also to Mr. Herman, Assistant Chief for

24 the General Litigation Section of the Department

25 of Justice for signature by William D. Brown. It

226

1 is an unsigned draft.

2 MR. EARL: May I also assume these

3 are --

4 MR. FITZGERALD: SWIM Plan

5 comments.

6 MR. EARL: SWIM Plan comments?

7 MR. FITZGERALD: That's probably why

8 it was clipped to the preceding documents.

9 THE WITNESS: That's why it was.

10 MR. FITZGERALD: The final document

11 is a --

12 MR. EARL: Excuse me. Is this part

13 of the composite now?

14 MR. FITZGERALD: It was clipped to

15 it.

16 MR. EARL: Okay.

17 MR. FITZGERALD: Not stapled or

18 anything. Somebody just clipped these three

19 together. The final document is a 29-page

20 facsimile dated February 16, 1990 from Steve

21 Herman, Esquire to Louis Hornung. The interior

22 document is dated February 16, 1990. It's from

23 Steve Herman, subject Everglades/Loxahatchee

24 Litigation Draft SWIM Plan Comment. It's

25 addressed to the same cast of characters,

227

1 Constance Harriman, LaJuana Wilcher, John Doyle,

2 Dexter Lehtinen, Esquire and Greer Tidwell.

3 MR. EARL: Is that it, counsel?

4 MR. FITZGERALD: That's it.

5 MR. EARL: Thank you. I appreciate

6 that.

7 BY MR. EARL:

8 Q. Other than the documents counsel has

9 just identified, have you today or your counsel

10 removed any others documents from the file you

11 just handed me?

12 A. No.

13 MR. FITZGERALD: One moment,

14 counsel.

15 A. Apparently we did pull a couple of

16 documents that had nothing to do with the issue.

17 Q. Would you identify those, please.

18 Are they privileged?

19 MR. FITZGERALD: No. No, they're

20 not. But they are unresponsive to the subpoena

21 so -- or the notice.

22 A. I didn't realize we pulled those.

23 MR. FITZGERALD: Counsel, I may have

24 actually put them back in. I debated whether

25 we'd bother pulling them or not.

228

1 MR. EARL: What was the topic?

2 MR. FITZGERALD: Give me just a

3 second. No, I put them back in. I'm sorry. I

4 misled the witness. We had pulled two -- you'll

5 come across them in there and I'll either have

6 the witness ID those as ones we've pulled or I

7 will if I recognize them for you.

8 MR. EARL: Thank you.

9 BY MR. EARL:

10 Q. Other than what counsel has just

11 identified, have you removed any other documents

12 from the file you've just handed me?

13 A. No.

14 Q. Did Mr. Pike or your secretary or

15 anyone in your office yesterday prior to shipping

16 them down here remove any documents from this

17 file?

18 A. They removed them, they faxed them

19 to us and then put them back in the package. Let

20 me double-check that.

21 THE WITNESS: The fax that you have

22 is -- all those documents are included in that

23 package?

24 MR. FITZGERALD: Yes.

25 BY MR. EARL:

229

1 Q. Who removed them yesterday, your

2 secretary?

3 A. Actually my -- one of my section

4 chiefs, Mr. Kurzbach.

5 Q. And what documents -- he removed

6 them on your instruction?

7 A. Yes.

8 Q. What documents did he remove from

9 the file yesterday?

10 A. Documents that -- we quickly went

11 over the documents and documents that I thought

12 were -- contained my signature I wanted to see

13 since I told you that I didn't think there were

14 any documents containing my signature.

15 Q. And that's what he faxed down to you

16 yesterday?

17 A. That's what he faxed down, as I

18 recall. If I could see what he -- a copy of the

19 fax, I could tell you exactly. You at the time

20 we were pursuing this line and I thought perhaps

21 I could get these documents right away and they

22 would help us in our discussion. Most of them

23 turned out to be pulled. Right? This one is in

24 the --

25 MR. EARL: Off the record.

230

1 (A discussion takes place off the

2 record.)

3 A. These are the items that were faxed

4 to me that were not pulled. You can just stick

5 them in there if you wish.

6 Q. You're now handing me --

7 A. Items that were faxed to me

8 yesterday.

9 Q. That are not in the file you just

10 handed me.

11 A. No, they are in the file, I

12 believe.

13 Q. Okay.

14 MR. FITZGERALD: Only one document,

15 counsel, was pulled.

16 A. Only one document was pulled.

17 MR. FITZGERALD: And it's already

18 been identified as one of the privileged

19 documents.

20 BY MR. EARL:

21 Q. Okay. So you've just handed me --

22 let's just identify what you've handed me. A

23 what you've been calling a buck slip dated

24 September 1, '89 consisting of an Everglades SWIM

25 Plan from McAdams to Bo consisting of four pages

231

1 attachment. You've handed me a 9 April, 1990

2 Memorandum of Record, subject SWIM O and R Task

3 Group from Hanley K. Smith, two pages. You've

4 handed me it looks like a fax sheet dated March

5 1st, '93, a transmittal date.

6 A. Those are -- that's an example

7 someone asked me for comments and I just typed

8 them out, signed them. Those kinds of comments

9 would never end up in the file.

10 Q. Okay.

11 A. And the reason I had these faxed was

12 I told you that I did not routinely keep records,

13 and in fact there was an example of a record that

14 I did keep and I wanted to say I had misspoken in

15 that regard.

16 Q. Okay. Dr. Smith, if you would like

17 to take a short ten-minute break, what I'll do in

18 that period is quickly go through here and

19 categorize the copying priorities because you

20 wanted to take a break I believe anyway. So

21 let's go ahead and do that.

22 A. If you want to take a break, I

23 don't -- I thought my presence was unnecessary at

24 that time.

25 Q. It's not necessary for the next ten

232

1 minutes if you want to relax and enjoy yourself

2 even more.

3 (A brief recess is taken.)

4 BY MR. EARL:

5 Q. Dr. Smith, we're now copying the

6 files you've provided today. I notice the file

7 was entitled Everglades SWIM Plan. Correct?

8 A. Yes, sir.

9 Q. And where physically did you keep

10 that file?

11 A. In my lower left-hand drawer.

12 Q. Of your desk?

13 A. Yes.

14 Q. What other files do you keep there?

15 A. I keep confidential personnel

16 records. I keep a file on the Florida Bay

17 National Marine Sanctuary. Basically it's a

18 place to put files that I may have reason to have

19 ready access to but don't fit in conveniently

20 into other categories.

21 Q. Okay. So you have confidential

22 personnel files, you have National Marine

23 Sanctuary files. What other files do you have

24 down there?

25 A. I have staffing and manpower files.

233

1 Q. Are they divided up by topics?

2 A. They're the same -- these are all

3 the same kinds of file. If something comes in on

4 this subject, I stick it in that file, get it off

5 my desk.

6 Q. What other subject matters do you

7 have that you keep files on in that drawer?

8 A. I don't recall any others. There

9 may be some of my own personnel files. These are

10 catchall files.

11 Q. There's a catchall file?

12 A. That's what these files are is

13 catchall files. It's the kind of information you

14 don't want to lose, but you really don't have any

15 place in particular to put it.

16 Q. Right. Well, other than the

17 confidential personnel files, the National Marine

18 Sanctuary files, staffing and manpower files,

19 your own personnel files, what other specific

20 files do you have down there?

21 A. I don't recall any others. I think

22 there's airline and travel guides and maps of

23 various cities that I visit.

24 Q. No other substantive files that

25 you --

234

1 A. No, not that I can recall.

2 Q. Do you have any other files there

3 relating to the Central and Southern Project or

4 any portion of it?

5 A. Not that I recall.

6 Q. Okay. Do you maintain such files

7 any place else in your office?

8 A. Relating to the C&SF?

9 Q. Yes.

10 A. I have no doubt that if you went

11 through my office you would find files relating

12 to the C&SF. I can't tell you specifically

13 what -- I receive a lot of information and it

14 occurs to me this really should be saved, but it

15 doesn't fall into any particular category. That

16 information tends to be stored in catchall files

17 all over my office.

18 Q. Okay. And I understand you did not

19 review those in response to the request for

20 production directed to you. Correct?

21 A. No. I did review this file, as a

22 matter of fact, and did not -- not apparently

23 with the level of attention that I would have had

24 I known this process a little better.

25 Q. Okay. Well, in fact, you weren't

235

1 even provided with the directions that came with

2 the request for production, were you? You told

3 me that yesterday.

4 A. I was provided with a --

5 Q. Do you remember yesterday we talked

6 and you told me you hadn't been provided with the

7 first several pages?

8 A. Yes. That's right.

9 MR. FITZGERALD: I would point out

10 that the witness' testimony was actually that he

11 had the definitions prior to that from other

12 sources.

13 MR. EARL: I don't think that's

14 correct, counsel, but we'll let the record speak

15 on that.

16 A. I had the definitions as a result of

17 the interrogatory that I received several months

18 ago.

19 Q. So at the time you prepared -- your

20 testimony now is at the time you gathered up

21 documents in response to the request for

22 production directed to you, you fully understood

23 and had read the directions which accompanied

24 that request?

25 A. No. I did not.

236

1 Q. Okay. And you didn't even have them

2 before you, did you?

3 A. No.

4 Q. Who gave you -- did the Office of

5 Counsel, Mr. Pike or one of the paralegals give

6 you the request for production with the missing

7 pages? Who gave that to you?

8 A. I don't know. It came from somebody

9 named Sandy. It came from Tom, Tom Fitzgerald.

10 Q. And that came to you without the

11 cover page. Correct? Without the instruction

12 pages. Correct?

13 A. It came to me beginning with page

14 seven.

15 Q. Okay. How did you know that there

16 were no documents in these other files you say

17 relating to the project in your office that would

18 have been responsive to this request if you

19 didn't go through those files?

20 A. I wouldn't know without going

21 through those files.

22 Q. Okay. So as we sit here today, you

23 don't know whether those files contained

24 documents which might be responsive to this

25 request. Is that correct?

237

1 A. That's correct. It's important for

2 you to understand the explanation, however, of

3 the files in my office. These are not official

4 files. They're places where I store stuff that

5 comes in. Maybe newspaper articles, maybe a

6 report from the Sierra Club, the Audubon

7 Society. Things I say to myself this is not --

8 maybe I'll need this some time. I made a

9 conscious effort for everything of that sort that

10 dealt with the lawsuit and with the SWIM Plan to

11 go into that single file labeled SWIM Plan. But

12 a large percent of my work deals with this

13 project.

14 Q. Now, the official files maintained

15 in your office, you told me yesterday they're

16 maintained by your project managers. Correct?

17 A. Yes.

18 Q. And there were some you weren't

19 quite -- you weren't quite clear that were

20 maintained by your secretary. Correct?

21 A. That's right.

22 Q. And you told me there was no index

23 to those files. Correct?

24 A. To my knowledge there's no index.

25 Here again, my secretary is charged as -- it is

238

1 her job description to maintain the files. When

2 I ask for a file it arrives in the form that I

3 ask for it. I've always been satisfied with the

4 files that I've gotten in. I haven't gone out

5 and asked people how they keep their files.

6 Q. Did you ask your secretary to review

7 those files in response to the request for

8 production directed to you?

9 A. No, I did not.

10 Q. Did you yourself in response to this

11 request for production review the files

12 maintained by your project managers or your

13 secretary?

14 A. I did not. I asked specific

15 individuals for information that I felt -- that I

16 knew they had that I felt was responsive to the

17 questions.

18 Q. But you didn't ask them to review

19 the files?

20 A. I asked Mr. McAdams if he had

21 provided all this material previously to -- all

22 the material he had previously to Barbara Haines

23 and he said yes. And I felt at that point you in

24 all likelihood had all this data and consequently

25 didn't produce it. What I produced was things I

239

1 figured you did not have.

2 Q. And how did you determine what we

3 had and did not have?

4 A. Primarily recent information and

5 information that -- quite frankly I figured you

6 had it all. We've always been very forthcoming

7 in all the discoveries.

8 Q. Pardon me?

9 A. We've always been very forthcoming

10 in all the discoveries.

11 Q. And how do you know that?

12 A. Each time the paralegals have come

13 back asking for material, we've said here it is.

14 There's very little in -- I think you understand

15 the process. I have an office maybe forty

16 percent of the material is on the C&SF, literally

17 hundreds and hundreds of files. And I felt that

18 I was being responsive to the questions in

19 providing the information that I thought was

20 useful. I did not provide the huge volume of

21 files.

22 Q. Can we go back to the request for

23 production we're talking about that Mr.

24 Fitzgerald sent to you?

25 A. Yes.

240

1 Q. Number eighteen, requests, "A list

2 of all technical, professional, or scientific

3 publications, articles, monographs, theses or

4 similar papers, including any such papers

5 currently in preparation, in which the witness is

6 identified as the author or co-author." Which of

7 those, if any, documents such as that do you have

8 for me today, sir?

9 A. I have no such documents for you

10 today. All of those -- I interpreted this

11 request to be -- to mean articles which appear in

12 the technical literature.

13 Q. Okay. And did you supply to me the

14 articles you described earlier that were West

15 Virginia?

16 A. No, I did not.

17 Q. Why was that if you had such an

18 interpretation?

19 A. I'm sorry. Technical literature

20 that dealt with South Florida.

21 Q. I see. It says all technical

22 publications, doesn't it?

23 A. Yes, it does.

24 Q. Okay, sir. Did you bring these with

25 you?

241

1 A. No.

2 Q. In nineteen we asked for a copy of

3 each of those. In eighteen we asked for a

4 listing of those. Have you provided either, sir,

5 of your publications?

6 A. No.

7 Q. And why was that, because you

8 misinterpreted the request?

9 A. I interpreted the request to deal

10 with the issue at hand.

11 Q. Okay. Number twenty asks you to

12 produce, "Any and all documents relating to the

13 preparation of an environmental impact statement

14 ("EIS") or National Environmental Policy Act

15 review of the design, construction, or operation

16 of the STA's." What documents have you brought

17 with you in response to that?

18 A. The only documents that I prepared

19 in regard to that was provided to you yesterday,

20 the compendium of NEPA actions, and I don't

21 recall what the exhibit number was.

22 Q. I believe that was number two

23 yesterday. Is this what you're talking about,

24 number two?

25 A. Yes, sir.

242

1 Q. Other than that you brought

2 nothing. Correct? Is that correct, sir?

3 A. I'm thinking about the answer.

4 Nothing comes to mind, although I thought there

5 was a document we looked at yesterday that did

6 discuss this matter. Yes, there was.

7 Q. Would you like to see the exhibits

8 we went through yesterday?

9 A. Yes. It's not one of the exhibits.

10 Q. Dr. Smith, you've gone into your

11 briefcase several times. Do you have other

12 documents with you that you haven't produced in

13 response to this request?

14 A. Not unless I find one right now I

15 don't. The answer to that is no. It appears

16 that I do not. There's something in your

17 question that jars my memory regarding a document

18 that discussed whether or not there would -- I'm

19 sorry. Yes, I do recall. In the exhibit on --

20 Exhibit Number 2 there is a discussion as to

21 whether or not the -- this is what I was thinking

22 of, this description on page nine of Exhibit 2

23 was --

24 Q. Which is a narrative description of

25 storm water treatment areas.

243

1 A. That's right.

2 Q. And NEPA documentation. Okay.

3 A. I knew there was something on it.

4 We had discussed the situation in some way and I

5 had seen written material.

6 Q. And that's a summary. Correct?

7 A. Correct.

8 Q. Other than that which we've already

9 talked about, Exhibit 2, have you brought with

10 you any other documents relating to the EIS NEPA

11 process for the STA's?

12 A. No.

13 Q. What files did you review to

14 determine whether such documents might exist?

15 A. There are no such files in my

16 office.

17 Q. In your physical office, your

18 personal office.

19 A. In the offices of the Environmental

20 Branch.

21 Q. Your testimony is there are no

22 documents of any kind in the Environmental Branch

23 discussing, relating to in any way the

24 possibility of an EIS or other NEPA review for

25 the STA's called for in the SWIM Plan. Is that

244

1 your testimony?

2 A. That's the testimony to my

3 knowledge. I would not expect to have found any

4 such documents and I did not look for any such

5 documents.

6 Q. You didn't look for it.

7 A. That's right.

8 Q. Okay. So you really don't know if

9 it exists, do you?

10 A. That's true.

11 Q. Okay. Well, why would you -- if no

12 documents exist relating to that, why in Exhibit

13 2 would you summarize the issue?

14 A. This was as a result of a discussion

15 with the Justice Department as to the best way to

16 display the existing NEPA documentation for the

17 C&SF. And I did not pull that document

18 together. It was pulled together for me while I

19 was out of the office. It's possible that there

20 was file information produced to do that. It's

21 very unlikely but it's possible.

22 Q. Who pulled this together for you?

23 A. It would have been done by Elmar

24 Kurzbach's section.

25 Q. His section.

245

1 A. It may not have been done by him

2 personally. He probably pulled together the

3 various people and put it together.

4 Q. Have you asked him whether any such

5 documents exist?

6 A. No.

7 Q. And your testimony as we sit here

8 today is that you've never seen and have no

9 recollection whatsoever of any piece of paper,

10 whether it be informal memoranda, whether it be

11 an interoffice memorandum or other document at

12 the Environmental Branch of the Jacksonville

13 District which relates to NEPA review of the

14 STA's. Is that correct?

15 A. To the best of my recollection

16 that's correct.

17 Q. And you don't have the best

18 knowledge on that. You haven't reviewed the

19 files, have you?

20 A. That's true.

21 Q. And who would I ask if I wanted to

22 know what was in the files?

23 A. Mr. Kurzbach.

24 Q. And you've never seen any

25 correspondence regarding the need or request to

246

1 invoke the NEPA process regarding the SWIM Plan

2 or the STA's. Is that your testimony?