1 STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
2
3 SUGAR CANE GROWERS COOPERATIVE OF FLORIDA, )
ROTH FARMS, INC., and WEDGWORTH FARMS, INC., )
4 -and- )
FLORIDA SUGAR CANE LEAGUE, INC., UNITED )
5 STATES SUGAR CORPORATION, and NEW HOPE )
SOUTH, INC., )
6 -and- )
FLORIDA FRUIT AND VEGETABLE ASSOCIATION, )
7 LEWIS POPE FARMS, W. E. SCHLECHTER & SONS, )
INC., and HUNDLEY FARMS, INC., )
8 )
Petitioners, )
9 )
vs. ) DOAH CASE NOS
10 ) 92-3038
SOUTH FLORIDA WATER MANAGEMENT DISTRICT, ) 92-3039
11 ) 92-3040
Respondent, ) (Consolidated)
12 )
and )
13 )
MICCOSUKEE TRIBE OF INDIANS, THE UNITED )
14 STATES OF AMERICA, FLORIDA DEPARTMENT OF )
ENVIRONMENTAL REGULATION, and FLORIDA )
15 WILDLIFE ASSOCIATION, )
)
16 Intervenors. )
)
_____________________________________________
17
HEARING BEFORE: HONORABLE J. STEPHEN MENTON
18 HEARING OFFICER
19 DATE: FRIDAY, JULY 16, 1993
(2:10 P.M. - 3:12 P.M.)
20
LOCATION: HEARING ROOM 5, DESOTO BUILDING
21 1230 APALACHEE PARKWAY
TALLAHASSEE, FLORIDA
22 (ALL PARTIES PRESENT VIA
TELEPHONE)
23
REPORTED BY: SUE HABERSHAW JOHNSON
24 CERTIFIED COURT REPORTER
REGISTERED PROFESSIONAL REPORTER
25 NOTARY PUBLIC
2
1 APPEARANCES:
2 Representing Petitioners, Sugar Cane Growers
Cooperative of Florida, Roth Farms, Inc.,
3 and Wedgworth Farms, Inc.:
4 WILLIAM H. GREEN, ESQUIRE
GARY PERKO, ESQUIRE
5 Hopping, Boyd, Green & Sams
123 South Calhoun Street
6 P. O. Box 6526
Tallahassee, Florida 32314
7 (904-222-7500)
8 Representing Petitioners, Florida Sugar Cane
League, Inc., United States Sugar Corporation,
9 and New Hope South, Inc.:
10 RICK J. BURGESS, ESQUIRE
MARK T. KOBELINSKI, ESQUIRE
11 Peeples, Earl & Blank, P.A.
One Biscayne Tower, Suite 3636
12 Two South Biscayne Boulevard
Miami, Florida 33131
13 (305-358-3000)
-and-
14 WILLIAM L. HYDE, ESQUIRE
ROBERT BLANK, ESQUIRE
15 Peeples, Earl & Blank, P.A.
Suite 350
16 215 South Monroe Street
Tallahassee, Florida 32301
17 (904-681-1900)
18 Representing Petitioners, Florida Fruit and
Vegetable Association, Lewis Pope Farms,
19 W. E. Schlechter & Sons, Inc., and
Hundley Farms, Inc.:
20
KENNETH F. HOFFMAN, ESQUIRE
21 Oertel, Hoffman, Fernandez & Cole, P.A.
Suite C
22 2700 Blair Stone Road
Tallahassee, Florida 32301
23 (904-877-0099)
24
25
3
1 Representing Respondent, South Florida Water
Management District:
2
PAUL L. NETTLETON, ESQUIRE
3 Popham, Haik, Schnobrick & Kaufman, Ltd.
400 International Place
4 100 Southeast Second Street
Miami, Florida 33131
5 (305-539-7222)
-and-
6 ABNER T. COOPER, ESQUIRE
IRENE W. QUINCEY, ESQUIRE
7 RUTH P. CLEMENTS, ESQUIRE
Assistant District Counsel
8 South Florida Water Management District
P.O. Box 24684
9 3301 Gun Club Road
West Palm Beach, FL 33416-4680
10 (305-539-7222)
11 Representing Intervenor, The United States
of America:
12
SUZAN HILL PONZOLI, ESQUIRE
13 KATHY STARK, ESQUIRE
MAUREEN DONLAN, ESQUIRE
14 Assistant United States Attorneys
Southern District of Florida
15 Suite 627
155 South Miami Avenue
16 Miami, Florida 33130-1693
(305-536-4425)
17
Representing Intervenor, Florida Department of
18 Environmental Protection:
19 LEE M. KILLINGER, ESQUIRE
DONNA LA PLANTE, ESQUIRE
20 Assistant General Counsel
Department of Environmental Protection
21 Twin Towers Office Building
2600 Blair Stone Road
22 Tallahassee, Florida 32399-2400
(904-488-9730)
23
24
25
4
1 Representing Intervenor, Florida Wildlife
Federation:
2
KEN WRIGHT, ESQUIRE
3 DAVID G. GUEST, ESQUIRE
111 South Martin Luther King, Jr., Blvd.
4 P.O. Box 1329
Tallahassee, Florida 32302
5 (904-681-0031)
6 Representing the Miccosukee Tribe of Indians:
7 DEXTER W. LEHTINEN, ESQUIRE
Spencer and Klein, P.A.
8 801 Brickell Avenue, Suite 1901
Miami, Florida 33131
9 (305-374-7700)
10 Representing the United States Department of
Justice:
11
KEITH A. SAXE, ESQUIRE
12 DAVE GILLARD, ESQUIRE
BRIAN FERRELL, ESQUIRE
13 United States Department of Justice
Environmental & Natural Resources Division
14 General Litigation Section
Room 879, 601 Pennsylvania Avenue (20004)
15 P.O. Box 663
Washington, DC 20044
16 (202-272-4016)
17 * * * * *
18 ALSO PRESENT:
19 VICTORIA MINNETT
20 * * * * *
21 INDEX
_____
22 ITEM PAGE
____ ____
23 HEARING COMMENCED . . . . . . . . . . . . . . . . . . 5
24 HEARING CONCLUDED . . . . . . . . . . . . . . . . . . 53
25 CERTIFICATE OF REPORTER . . . . . . . . . . . . . . . 54
5
1 PROCEEDINGS
2 (WHEREUPON, THE HEARING COMMENCED AT 2:10 P.M.)
3 HEARING OFFICER: I think we are all represented.
4 As I was making a list of who was being called off on
5 the roll call, I think we have everybody present. Is
6 that correct? Is there anybody you can think of that
7 is left out?
8 MR. BURGESS: Mr. Hearing Officer, this is
9 Mr. Burgess. I am here together with my partner, Bob
10 Blank, on behalf of the League, U. S. Sugar, and New
11 Hope South.
12 HEARING OFFICER: All right. I think all parties
13 are represented as I was making a list of who was
14 being called off.
15 Let me say that I have received a motion to stay
16 the proceedings that was filed by Mr. Hyde on behalf
17 of the Sugar Cane League. That is the only document
18 that I have received or that I have before me at this
19 point in time.
20 There are several questions that I had in going
21 through that motion and the documents that were
22 attached thereto.
23 But before I get into those I think probably the
24 best way to start today would be to have the
25 signatories to the statement of principles relay any
6
1 information that they want to convey at the outset and
2 then have those parties who were not signatories state
3 their positions and kind of see where we are from
4 there.
5 So why don't we start out with either Mr. Hyde or
6 Mr. Kobelinski, somebody on behalf of the League, and
7 bring me up to speed as to exactly where we are and
8 what's going on.
9 MR. BURGESS: For the League, U. S. Sugar, and
10 New Hope, Mr. Hearing Officer, this Rick Burgess.
11 We filed the stipulated motion for stay on behalf
12 of our clients and in that document conveyed to you
13 that our clients have entered into the statement of
14 principles, hoping that it provides a framework for
15 future discussion, and of course the document which
16 you have evidences the agreement among those
17 signatories to seek a 90-day stay to allow us, the
18 attorneys who are both the negotiators and the
19 litigators, a period of time to meet without the
20 pressures of discovery and responses to pleadings.
21 It also provides and all party signatories have
22 affirmed that they will attempt to include all of the
23 other parties who did not sign the agreement in the
24 discussions, which will take place hopefully over that
25 90-day period, and in fact are scheduled to commence
7
1 next week.
2 I think granting the stay at this time allows us
3 to enter into these discussions, that the path of
4 negotiation rather than litigation at this point holds
5 out the most hope for a cost expedient and a time
6 expedient solution to all of the Everglades'
7 controversies, including those that are evidenced by
8 the SWIM plan challenge and the permit challenge.
9 In our mind it is very clearly negotiation which
10 is negotiation on a new plan representing an
11 improvement, that plan represents an improvement over
12 the adopted plan, and that litigation over that
13 adopted plan is not going to move the process along.
14 In fact, that is the only delay that will occur if we
15 are forced to litigate over that adopted plan, as
16 opposed to negotiating over the new plan.
17 So simply put we think that we will all operate
18 in an atmosphere over the next 90 days that allows
19 negotiations to continue if the stay is granted, as
20 opposed to forcing us to continue discovery and
21 responses to discovery deadlines and negotiate at the
22 same time.
23 HEARING OFFICER: That was Mr. Burgess?
24 MR. BURGESS: Right.
25 HEARING OFFICER: Mr. Burgess...
8
1 MR. BURGESS: Yes.
2 HEARING OFFICER: ...let me ask you one question.
3 I am not clear from the motion I have before me or
4 what you are saying now what exactly it is that you
5 anticipate occurring as a result of this stay.
6 Is there going to be a substituted plan, or are
7 there going to be amendments to the plan, or are there
8 going to be, is there going to be a completely, whole
9 different plan that we are working from?
10 I guess the reason I ask that, is that the
11 appropriate course here, to stay the challenge to the
12 existing plan or remand it for adoption of a new plan?
13 MR. BURGESS: What we hoped the process would
14 result in is a settlement agreement with respect to
15 the disputes that now concern the adopted plan, and
16 out of that settlement agreement a framework for a new
17 plan, which we assume, but I will let the attorneys
18 for the District and others tell you through what
19 process that will go, but it would, the result we hope
20 from the 90 days is a settlement agreement with
21 respect to the present challenge.
22 HEARING OFFICER: Okay. Mr. Hoffman, I noticed
23 that you were not a signatory to the principles, but
24 you were represented in the motion as in agreement
25 with the request. Is there anything that you wanted
9
1 to add or state your position for the record?
2 MR. HOFFMAN: I think that you have stated it in
3 the sense that the Fruit and Vegetable Association is
4 the named farmers who support the stay. We were not
5 signatory to the document, but we believe that an
6 overall settlement I think is what I understand
7 Mr. Burgess is saying would come out of it. There
8 should not be loose ends when this thing is settled,
9 which there are many of right now.
10 There are Commissions meeting on who pays for
11 what, you know, potential other plans, and so forth
12 and so on, which would be other proceedings, so we
13 support this motion strongly.
14 HEARING OFFICER: Are you in agreement with the
15 statement of principles? You have not signed off on
16 the statement of principles. Is there opposition that
17 you client has taken yet on that?
18 MR. HOFFMAN: Well, there are some small things
19 with which our client does not feel that they wanted
20 to sign off on. There are points we think can be
21 resolved, but they are, what they are exactly this
22 minute I can't remember.
23 But, I mean, for everything, that statement is
24 lengthy, and there is not everything that we agree
25 with, but we are in agreement with where they are
10
1 going, and it looks like it should make a settlement
2 very likely.
3 HEARING OFFICER: Okay.
4 MR. HOFFMAN: I support this continuance motion.
5 HEARING OFFICER: All right. Mr. Green, I
6 noticed that you also, your clients did not sign on
7 the statement of principles, and there was a somewhat
8 ambiguous statement as to what your position was with
9 respect to the motion to stay. I guess you are in
10 favor of the motion to stay, but where are your
11 clients on the statement of principles and on the
12 motion?
13 MR. GREEN: Mr. Menton, I have also with me here
14 Gary Perko.
15 This is Bill Green, Ms. Habershaw. We do not
16 agree with the statement of principles. We do not
17 have bright hopes that continued mediation will
18 succeed. However, we will not oppose the motion.
19 I guess hope springs eternal, they say, but we
20 have filed today, and certainly I can understand if it
21 hasn't wound its way to you, we filed a response to
22 the motion to stay, a brief response, but the purpose
23 of the response is simply to make it clear for the
24 record that our clients do not agree with the proposed
25 mediated plan.
11
1 But we did not oppose a motion for stay so long
2 as the final hearing date and any related deadlines
3 would be extended by at least a commensurate period of
4 time.
5 We do have some concerns on sort of collateral,
6 miscellaneous matters, but I think they are secondary,
7 and we can get to those after you get the positions of
8 the parties, if you would like.
9 HEARING OFFICER: Let me hear from the
10 governmental agencies, beginning with the District and
11 their plan, and then from the federal government and
12 DER.
13 MR. NETTLETON: Okay. Mr. Hearing Officer, this
14 is Paul Nettleton for the District.
15 Let me start by just saying we would join
16 generally in the comments that were made by
17 Mr. Burgess in the beginning. Just to advise you as
18 to where this stands, our Governing Board met
19 yesterday and after much debate and public comment at
20 both the meeting as well as the workshop that was held
21 the day before ultimately voted, I think it was seven
22 to one, to approve the statement of principles.
23 The purpose of this, of course, from the
24 District's standpoint is to move forward with the
25 Everglades ecological restoration, which we believe is
12
1 the overriding mandate of the Marjory Stoneman Douglas
2 Act.
3 As part of that, of course, as Mr. Burgess says,
4 it does require the stay of discovery as our current
5 schedule has us doing, you know, up to seven or eight
6 depositions simultaneously through the end of the
7 period, which would make it almost impossible to work
8 out the details that are necessary to come to a final
9 resolution.
10 I wanted to also emphasize, as Mr. Burgess has
11 stated, the point of the next 90 days is to hopefully
12 reach a settlement agreement and, as Mr. Hoffman says,
13 hopefully reach a settlement agreement with all
14 parties interested in this matter.
15 All the parties, including the environmentalists,
16 the Miccosukees, and the Cooperative, and the related
17 parties are continuing to be invited to meetings, as
18 Mr. Burgess says, scheduled next week, and we hope
19 that all issues can be resolved in that and resolve
20 the entire litigation.
21 However, the commitment that we have made at this
22 point is not to some proposed settlement agreement,
23 because we don't know the details of what that will be
24 at this point, although we think the statement of
25 principles is a very large step in the direction that
13
1 we want to go.
2 This vote to approve the statement of principles
3 was not a vote to amend the SWIM plan in any respect,
4 and not until the settlement agreement is ultimately
5 worked out and the Board votes on that will that
6 become effective, and I assume at that point it will
7 supersede the statement of principles, and I believe
8 as the Board made clear yesterday when it voted on
9 that that it would want to ensure that all third
10 parties who might be affected by any implementation in
11 the future of any actions that might be agreed to
12 would have their rights preserved for points of entry
13 at that time.
14 So, Mr. Hearing Officer, to answer your question,
15 at one point there is a possibility that the SWIM plan
16 will be amended somewhere down the line. That is not,
17 we are not at that point at this point.
18 However, that is a possibility if the settlement
19 agreement reach fruition, and again we would submit as
20 Mr. Burgess stated we think that the road we are
21 traveling right now is the most expeditious way to
22 comply with the Marjory Stoneman Douglas Act, and that
23 is to reach a final resolution and to start
24 implementing actual restoration efforts in the
25 Everglades.
14
1 HEARING OFFICER: Okay. DER?
2 MR. KILLINGER: Yes, this is Lee Killinger of DEP
3 it is now, and I am with Donna LaPlante.
4 We would join in the comments that the District
5 had about this proposed stay of this litigation to let
6 us get on down the road here, and without beating a
7 dead horse too much further, I just think we are at a
8 crossroads here.
9 We have gone a long way with the previous
10 mediation efforts. We have developed what seems to be
11 a pretty good technical consensus plan, and we have
12 gotten down to talking about the scheduling, and we
13 have also been discussing the money, and it is to the
14 point where some of that is getting put to paper now.
15 Obviously there is a lot more to be done, and it
16 is a rather large task we set for ourselves to get
17 done in 90 days.
18 I think if we are going to try to get down the
19 road to restoration and protection of the resource
20 that we need to get on with it, and it is a difficult
21 enough task to do by itself, and I think it certainly
22 requires the stay of the litigation in order to get
23 down the road.
24 HEARING OFFICER: Mr. Killinger, let me ask you a
25 question, because I assume that the motion to stay
15
1 applies both to the SWIM plan challenge as well as to
2 the challenges to the permit.
3 Has there been any discussion as to exactly what
4 will happen with the permitting case? Will these
5 cases be included within the scope of the discussions
6 that will be taking place over the next 90 days?
7 MR. KILLINGER: Yes, it is my contemplation that
8 they will, and feel free for anybody else to wade in
9 with their opinion on this, but it is my opinion that
10 the mediated plan, since it does have impact on the
11 design and location of the STAs, will require
12 modification of the permit that is presently out there
13 in litigation right now.
14 Just as the SWIM plan will ultimately need to be
15 modified should we come to a settlement agreement, so
16 will the permit, and they will be handled
17 substantially similarly.
18 HEARING OFFICER: Okay, so there would be no
19 benefit from your position to separating the two
20 cases? I don't think they have ever formally been
21 consolidated. We haven't done an order consolidating
22 I don't think at this point the SWIM plan challenges
23 and the permit challenges, and there is no benefit to
24 trying to keep those cases separate and maybe having
25 the permit case go forward?
16
1 MR. KILLINGER: I think that they are pretty well
2 tied up together. I am not sure there would be much
3 benefit to proceeding on one, given the technical
4 aspects of the plan that I understand.
5 I think it will require modifications to it, and
6 we might be going down the road proceeding on
7 something that doesn't get us anywhere in the long
8 run, and we could settle it.
9 MR. HYDE: Mr. Menton, this is Bill Hyde on
10 behalf of the League. I think it is well to remember
11 the Marjory Stoneman Douglas mandate that the permit
12 must be consistent with the plan. Therefore, if the
13 plan is amended, the permit has to be amended, too.
14 HEARING OFFICER: Okay, Ms. Ponzoli?
15 MS. PONZOLI: Mr. Menton, I have for some time
16 now sought the fastest relief for the Park and the
17 Refuge, and I have advised my clients to enter into
18 these further negotiations and to proceed with the
19 90-day stay if you were to grant it, because it is my
20 very firm belief that we can obtain the fastest and
21 probably the best relief for the Park and the Refuge
22 and for the overall Everglades if we are able to
23 settle all of these outstanding matters, and that is
24 of course the goal I believe of the parties who
25 signed, and I think there are parties who have not
17
1 signed that we still retain hope will join in through
2 the next 90 days.
3 It would be to settle virtually all outstanding
4 issues regarding the Everglades among these parties,
5 both those before you and elsewhere.
6 HEARING OFFICER: Okay. Mr. Guest or Mr. Wright?
7 MR. WRIGHT: Your Honor...
8 HEARING OFFICER: Is this Mr. Wright?
9 MR. WRIGHT: ...received the settlement agreement
10 a couple of days ago, like all of the parties who had
11 not been included in the negotiations, and we feel
12 that there are a lot of things that the statement of
13 principles doesn't include, and under the
14 circumstances what we would prefer to see, rather than
15 the 90-day stay period here, is a two-week stay that
16 would allow us to seek additional information as to
17 what is between the lines in the statement of
18 principles.
19 We feel that there must be more to it than what
20 actually meets the eye, and under those circumstances
21 a stay where there is not an agreement between all of
22 the parties is probably not sufficient under the
23 Marjory Stoneman Douglas Act mandate to expedite the
24 hearing, to go ahead and agree to a stay at that
25 point.
18
1 There would be a number of parties who simply do
2 not feel this is an adequate settlement agreement, so
3 we feel that a two-week stay to allow the parties to
4 get together and determine if this is actually
5 something that we can agree to would be the best
6 course of action.
7 HEARING OFFICER: Mr. Wright, have you seen a
8 technical plan yet? Is there a draft of the technical
9 plan that has been circulated yet?
10 MR. WRIGHT: Your Honor, we have some portions of
11 the technical plan. We are not sure what the
12 scheduling of the cleanup is going to be and what the
13 scheduling of the funding efforts are going to have to
14 be, and that is one of the significant concerns that
15 we have here.
16 There are those among our clients who believe
17 that what we are talking about is 20 years before we
18 get to a significant cleanup, and others are just not
19 sure.
20 That is one of the things that we would like to
21 find out from the other parties about when exactly
22 specific items have been determined to be cleaned up
23 or what construction schedules that we are going to be
24 on.
25 HEARING OFFICER: Okay, Mr. Lehtinen?
19
1 MR. LEHTINEN: Yes, Judge, what you are seeing
2 today is very typical of the way the water policies
3 have been set in this state for many, many years.
4 For example, the Miccosukee Tribe does not even
5 have a copy of the motion. We don't know what was
6 attached to it. We don't know whether the Water
7 Management Board attached its resolution...
8 HEARING OFFICER: No.
9 MR. LEHTINEN: ...which contrary to the statement
10 of principles, the statement of principles says the
11 obligations of the Water Management District will
12 become effective when the Board adopts it July 15th.
13 What they adopted on July 16th was a statement
14 that it is a non-binding. It is a non-binding
15 guidance document.
16 That occurred because it is clearly an unlawful
17 adoption. It wasn't on their agenda.
18 Their Rule 40-E requires them to notice it seven
19 days in advance. They have essentially admitted they
20 don't have good cause, and it is not under their rule
21 a matter of public controversy, and therefore although
22 they actually put it on their agenda as an additional
23 item on the last day and announced that we would be
24 adding an item, they had to quickly adopt the legal
25 position that it was always on the agenda, that
20
1 everybody knew about this seven days ago, when in fact
2 it was a secret negotiation which nobody could know
3 about until Bruce Babbitt said that this would settle
4 five years of litigation.
5 I don't mean to be technical about the point that
6 we don't have the motion and we are entitled to a
7 chance to respond to it, but in reality how can any
8 citizen of Florida really assert their rights if it is
9 an oral teleconference hearing, we don't know their
10 motion, we don't know what they represent the
11 statement of principles to be, and I don't know if the
12 changed STA map is attached.
13 If you look at the statement of principles you
14 see they commit to an entirely changed map. That
15 means you rip out a certain page of the SWIM plan and
16 put this map in. It takes tens of thousands of acres
17 of public land to do it, and when we pointed this out
18 to them at the District hearing, at the Water
19 Management District hearing, that is why they were
20 careful to draft a resolution that apparently becomes
21 an integral part of the agreement, which says it is
22 really not an agreement, and which says it really
23 doesn't commit the District to the attached STA map.
24 It is an Alice in Wonderland situation where
25 Bruce Babbitt can say one thing in Washington, and
21
1 then the lawyers stand up in Florida and say, "Forget
2 about what Secretary Babbitt said," and quite
3 literally a government lawyer doing a very good job in
4 trying to explain the difference literally told the
5 Board, "Don't read the press releases, and don't
6 believe what the higher up political officials say.
7 This doesn't settle anything." And the person is
8 right, of course, because it doesn't settle anything.
9 Of course, what would generally be said is that
10 it doesn't settle anything, but it reaches a
11 sufficient initial threshold, and I understand the
12 argument that if you reach an initial threshold then
13 maybe it is warranted to go forth and try to do more,
14 but you are hearing today that the District Board
15 would not even adopt the resolution consistent with
16 what the Board signed. It says they have no
17 obligations.
18 Mr. Green fairly and honestly says not only did
19 they not agree with the statement of principles, but
20 they have never even agreed to this allegedly agreed
21 upon technical plan.
22 If you say a million times the agreed upon
23 technical plan is agreed upon by everybody, it is
24 still not true. A misstatement said a million times
25 is still a misstatement.
22
1 Saying you are going to let the Indian tribe in
2 now doesn't wash the repeated violations of the
3 Florida public meeting and Florida notice laws that
4 are involved. You just can't wipe out the APA.
5 The Marjory Stoneman Douglas Act says, "Expedite
6 this." I don't think the District has the legal right
7 to adopt that STA map that they adopted yesterday,
8 but...
9 HEARING OFFICER: But, Mr. Lehtinen, at this
10 point there has been no modification to the SWIM plan,
11 so technically speaking what I have before me is the
12 initial SWIM plan that was adopted last year by the
13 Board, and what I am hearing from the federal
14 government and from the District and from the League
15 today is that they have reached some agreements in
16 principle which they are trying to finalize so that
17 they can modify the existing plan that has been
18 adopted, and what I would anticipate they would have
19 to do is to finalize their agreement, come to specific
20 language that incorporates that agreement, and then
21 attempt to modify the plan.
22 And at the time they modify the plan then those
23 parties who do not agree to the modification will
24 still have the opportunity to challenge those
25 modifications, and there would have to be either a new
23
1 point of entry, well, I guess I am a little unclear
2 procedurally as to how it would be done.
3 I don't think that there is any effort to wipe
4 out the rights of other parties who may not be in
5 agreement with the statement of principles, certainly
6 I do not intend to let that happen. I think all
7 parties who are substantially affected have the right
8 to challenge it.
9 The problem I see is that the District and the
10 federal government and at least some of the
11 petitioners are attempting to come to a modified plan,
12 and I guess the problem is we are involved in
13 litigation on a moving target, and until we know
14 exactly what the target is then I wonder how much
15 benefit it is to continue on a litigation course that
16 is really a lot of wasted time and effort.
17 MR. LEHTINEN: Well, Judge, much of what you say
18 is correct, but if I may point out the following.
19 First of all, it is correct that if these private
20 parties reach private, off-budget agreement, so to
21 speak, and adopt the amended SWIM plan 90 days from
22 now or six months from now, and everybody is given a
23 new point of entry, the litigation starts all over
24 again.
25 I mean, what's the point of a new point of entry
24
1 six months from now, except to have delayed the
2 litigation six months from now?
3 HEARING OFFICER: Well, if it eliminates some of
4 the parties and it narrows the issues that are in
5 dispute, it seems to me it is furthering the long-term
6 goal, which is to come up with a SWIM plan that all
7 parties know what it is and have had an opportunity to
8 challenge it.
9 I guess, you know, it is a very difficult thing
10 when you have multiple parties involved with multiple
11 interests, and what the District ultimately has to do
12 is come up with their final plan, so that I know
13 exactly what it is that we are litigating over, and
14 that all parties that are involved and substantially
15 affected know what they are litigating over and can
16 focus their attacks.
17 It is a cumbersome process sometimes, but I don't
18 really see what our alternatives are.
19 Isn't it a waste of time for us to go forward and
20 go to hearing in November on the existing SWIM plan
21 when the District is saying that that very well may
22 not be what they are going to be advocating at the
23 final hearing?
24 MR. LEHTINEN: Well, I will, just two things I
25 will add.
25
1 First of all, I think that when you ask whether
2 or not this takes care of the permit challenge as
3 well, some of the petitioners in the permit challenge
4 are not asking for the stay. They have got a right to
5 go forth.
6 Some of the petitioners in the SWIM challenge are
7 not asking for it.
8 But you do make a point. As long as this
9 Governing Board is not going to make up its mind, it
10 probably is a futile effort.
11 It is a futile effort for the citizens of the
12 State of Florida to have this Governing Board adopt
13 the SWIM plan, send it over to you, and then send over
14 some ambiguous, half-baked, who know what it is legal
15 request to wipe that out, because we are going to
16 change our minds, and in agreement with not the
17 citizens of Florida and in agreement with just a
18 couple of big litigants, not the little guys, not the
19 people who live in the Everglades, like the
20 Miccosukees, and not the environmentalists, but with
21 the big monied interests who can hold this up.
22 I have heard it said that Florida's APA cannot
23 work. They simply say that Florida's APA cannot be
24 made to work against well monied interests.
25 Now the District Governing Board if you interpret
26
1 it as saying to you, "We are probably going to change
2 the plan, and you will probably have to start all over
3 again six months from now," I understand their
4 interpretation, but that is quite different than any
5 belief that this is going to speed the process.
6 That is in fact an interpretation that we are
7 just going to start over again at ground zero with
8 another 120.57 point of entry and another set of
9 challenges, and we are just going to hope that the
10 people who never agreed to this at the 120.57 later on
11 don't have enough money to make it stick.
12 All we will have done is wiped out the 120.57
13 petitioners who have a lot of money and can make their
14 rights stick and assume that the 120.57 petitioners
15 who will file six months from now will not be able to
16 have that kind of clout. It is just a terrible
17 commentary on public policy.
18 HEARING OFFICER: Let me ask you, what do you
19 suggest then? How do we go about speeding up this
20 process?
21 MR. LEHTINEN: Your Honor, I think if what is
22 being asked for is a 90-day delay, first of all these
23 300 depositions was a foolish thing to start with.
24 All they did was try to make a mockery of the APA
25 proceedings with these kind of depositions. They can
27
1 negotiate I believe without the 90-day stay.
2 I am not of the belief that they can't cancel
3 their depositions, you know, on their own, that they
4 can't meet together.
5 I just don't see why they need the 90-day stay.
6 If they have met a threshold of some type that they
7 are satisfied with, then they should cancel the
8 depositions on their own, and they should run the risk
9 when they cancel the depositions that the agreement
10 won't come to fruition, and they have to go to
11 hearing.
12 It is a question of the distribution of the risk.
13 We are not trying to block negotiation, but they are
14 saying to us there is such a good chance of a deal
15 that you should delay the hearing date. I say to them
16 if there is such a chance of a deal then you should
17 cancel some of your frivolous depositions. You take
18 the risk that you will not be able to put those
19 frivolous depositions back on on time, rather than the
20 public taking the risk that the hearing date will be
21 set off.
22 That is really the question. It brings us back
23 to who should run the risk.
24 HEARING OFFICER: They have not specifically,
25 they have requested the November 13th date be
28
1 continued, but there has been no request as to when it
2 should be rescheduled.
3 Certainly that's one thing that I have voiced in
4 the past that I recognize, the directives in the
5 Marjory Stoneman Douglas Act that the proceeding is to
6 be expedited, and I am searching for a way to make
7 sure that this process is expedited.
8 I don't think that by giving the parties an
9 opportunity to try, I am hearing that some of the
10 major protestants are in agreement to some
11 modification of the plan, and the District anticipates
12 that there needs to be some modification to the plan,
13 and I think that the most beneficial way to expedite
14 this process is to try to pin down exactly what the
15 final plan is, so that we know when we go to hearing
16 what it is.
17 I am not at this point committing to postponing
18 the hearing 90 days or to postponing it for six months
19 or any period of time. I think that is going to be
20 dependent upon the future course of actions that take
21 place.
22 In that regard I did see a reference in the
23 statement of principles that there would be briefings
24 every 30 days, 60 days, and 90 days to the principals
25 involved.
29
1 I would like to get an understanding as to
2 exactly what that involves, and is that something that
3 we can build into a schedule for this administrative
4 proceeding?
5 MR. KILLINGER: Mr. Menton, this is Lee Killinger
6 at DEP. I would just like to point out that the
7 Douglas Act in its mandate states that the process be
8 expedited, and I think that is what we are dealing
9 with here, the question of feasibility.
10 If the parties, some of the major parties, have
11 got a question of feasibility or a question of
12 settlement, I think it directly bears on feasibility
13 of expediting the hearing.
14 If the prospect exists that a settlement can be
15 reached which may modify the SWIM plan and/or the
16 permit ultimately, I think that bears directly on the
17 feasibility of expediting the process.
18 When that occurs and how that occurs may make a
19 lot of what is going on in the litigation, in the
20 discovery, and in the preparation of the hearing
21 unnecessary. It may ultimately make a better case of
22 what is going on between some of the contesting
23 parties. It may ultimately be that we go to hearing
24 with some of the parties who cannot sign on or do not
25 feel they can agree with it, but I think that that has
30
1 to be kept firmly in mind, that the statute doesn't
2 say expedited at all costs, so I think to read it that
3 way would be a miscarriage of what the intent of the
4 statute is, which is ultimately to get a cleanup and a
5 protection of the resource at the soonest possible
6 date.
7 HEARING OFFICER: All right. There was some
8 reference also that there would be continued entry and
9 access I guess for testing purposes in Loxahatchee.
10 If everybody is in agreement with that aspect of
11 it, that testing would naturally continue in
12 accordance with the parameters set forth in the last
13 hearing we had on July 6th...
14 MS. PONZOLI: Yes, Mr. Hearing Officer, this is
15 Suzan Ponzoli. We have agreed to that entry and
16 access on the condition that the League bear the cost.
17 We were sharing certain costs in the past with
18 them, and that is a burden on the Refuge, because it
19 comes directly out of their budget.
20 The League has agreed to bear all those costs
21 during the stay period, which we have agreed to allow
22 them continued entry and access.
23 MR. GREEN: Mr. Menton, may I address the points
24 that have come up? This is Bill Green.
25 HEARING OFFICER: Yes.
31
1 MR. GREEN: This is an interesting discussion,
2 and I know you are trying to balance the interests of
3 everyone and also meet the statutory mandate.
4 Our position is a little different than the
5 positions you have been hearing, and I just wanted to
6 suggest to you some of the concerns we have with what
7 we hear the parties arguing and something you just
8 said a minute ago.
9 We are not real optimistic that mediation will
10 lead to a resolution of our concerns, but we don't
11 want to foreclose that process.
12 We are convinced despite what Mr. Lehtinen said,
13 I am convinced that the two and a half months or
14 whatever we have in the schedule tentatively of
15 depositions is the minimum that would be required to
16 litigate this case. It isn't loaded up.
17 There may have been depositions earlier on which
18 were not as important as others, but I can tell you
19 that the main case of the United States government and
20 DER in my opinion have yet to be discovered.
21 And so the dilemma that this places me in is, you
22 know, while we don't want to oppose the prospects of
23 settlement, and we hope that we can come to the table
24 and settle with everyone, at the same time if this 90
25 days just came out of our hide and we had to go to
32
1 hearing in November, then we can not live with that,
2 and we would absolutely oppose the stay.
3 That would be contrary to our clients' best
4 interests, and we just, here's the point.
5 I think that's true also for the United States,
6 the Water Management District, and those who have
7 entered into the statement of principles. I would
8 suspect, and I can't speak for them, I would ask their
9 views on that, if 90 days comes to an end and we are
10 not able to reach settlement, I don't know of anyone
11 who would seriously say we do not need at least as
12 much time as we have today to get ready for a hearing,
13 and I realize that Mr. Lehtinen has made some very
14 eloquent arguments for why he disagrees with that, but
15 I would urge you to reconsider what I heard, what I
16 thought I heard, that the hearing date would stay on
17 schedule. Because if it does, I will not agree with
18 it.
19 HEARING OFFICER: No, I am not saying that the
20 hearing date stays on schedule. I am saying that at
21 this point I haven't decided that the hearing date
22 will be extended commensurate with the extension of
23 any stay that might be entered. I will have to
24 revisit that as the case progresses.
25 I think the bottom line is I want to make sure
33
1 that the negotiations over the technical plan and the
2 implementation of the statement of principles is
3 proceeding along in a satisfactory manner. I think
4 maybe the way to do that is to monitor the 30- and 60-
5 day intervals.
6 MR. GREEN: Your Honor, I concur with that. It
7 was the other part that concerned me.
8 If we got to the end of 90 days and then others
9 were arguing, "Well, we ought to have the hearing in
10 60 days instead of the 90 days," if we didn't get the
11 full time we would be severely prejudiced, my clients'
12 position, and I firmly believe that.
13 HEARING OFFICER: Okay. I am not making that
14 final decision today.
15 What I will do is I think that based upon
16 representations that I have heard and a review of the
17 statement of principles, at least a number of the
18 principal litigants in this case have made some
19 progress in narrowing the scope of the issues that are
20 involved in this case and trying, have come to some
21 agreement that it appears will be implemented through
22 modifications to the plan.
23 The plan that is currently pending before me is
24 likely to change. In light of that I think the
25 appropriate thing to do would be to stay the
34
1 proceedings to enable the parties to try to crystalize
2 their agreement, and I have no problem with a 90-day
3 stay in principle, but what I want to do is monitor it
4 in 30- and 60-day installments to make sure it is
5 progressing satisfactorily.
6 So in that regard I think the way to address it
7 would be to, I will enter a stay for 30 days, and if
8 everything is progressing satisfactorily I will extend
9 it accordingly.
10 In addition, I will postpone the hearing for 30
11 days, and if we need to move it back a little bit
12 further we can revisit it in the future, but at least
13 at this point I think that there is evidence that
14 sufficient progress or adequate progress is being made
15 in narrowing some of the issues that were involved
16 that will ultimately end up in expediting this entire
17 proceeding.
18 So given that I will extend the hearing for, set
19 the hearing back 30 days.
20 But if we need to extend it further, if there is
21 progress being made, we can revisit that in the
22 future.
23 Mr. Green, I think that addresses your concern.
24 I am not saying it is absolute at this point, and
25 again to Mr. Wright we will just have to see where the
35
1 progress is and how much is being made and where all
2 of the parties are, and I will listen to everybody's
3 position again.
4 MR. WRIGHT: Your Honor, this is essentially what
5 we were asking for in any event. This way we will
6 have 30 days to see what is out there. I think it is
7 a good plan.
8 HEARING OFFICER: You are saying you wanted two
9 weeks? I have given you more than you wanted?
10 MR. WRIGHT: You have given us 30 days.
11 HEARING OFFICER: All right. Is, can you come
12 back in two weeks and give me a better report or an
13 adequate report then?
14 MR. WRIGHT: Well, Your Honor, it seems to us
15 that we are supposed to have some talks next week on
16 Tuesday and Wednesday, when I think they are
17 tentatively scheduled, and at that point we might be
18 able to come back and have a better idea, but I think
19 the 30 days is probably an adequate time period for
20 everyone to get a better feel for where we are.
21 HEARING OFFICER: Mr. Wright, is 30 days too
22 much?
23 MR. WRIGHT: No, Your Honor.
24 HEARING OFFICER: No, did you say?
25 MR. WRIGHT: No.
36
1 HEARING OFFICER: Okay. Mr. Lehtinen?
2 MR. LEHTINEN: Well, Judge, it is much better
3 than 90, so we thank you.
4 HEARING OFFICER: Okay. I don't have a calendar
5 in front of me. Does someone have one? Let's set up
6 a time right now for another conference call to find
7 out where we are in 30 days.
8 MR. NETTLETON: Mr. Hearing Officer, this is Paul
9 Nettleton. While people are pulling out their
10 calendars I would just like to mention to keep this in
11 context, and I am sure you are aware of this from
12 reviewing the statement of principles, but what is
13 being discussed in these meetings in hopes of reaching
14 a global resolution goes beyond the issues that are
15 currently involved in the SWIM plan, as Ms. Ponzoli
16 previously stated, and as the environmentalists had
17 mentioned earlier our primary concern was with the
18 funding aspects of this, and I just remind the Hearing
19 Officer that the funding aspects are not even involved
20 in this litigation at this point, but we are certainly
21 hopeful of resolving that later.
22 HEARING OFFICER: Well, Mr. Nettleton, I am not
23 clear. Are you saying just the funding aspect is
24 something that is beyond the current scope of the
25 existing SWIM plan?
37
1 MR. NETTLETON: I wanted to remind you in the
2 context of these discussions that they are beyond the
3 current SWIM plan. It encompasses the SWIM plan and
4 the permit challenges, but it also encompasses issues
5 beyond that which have not been addressed by the
6 parties in this litigation, and to the extent that
7 arguments are being made concerning those issues they
8 really should have no bearing on the progress of this
9 particular litigation or your consideration of the
10 stays.
11 HEARING OFFICER: Okay. Well, I guess...
12 MR. NETTLETON: I wasn't trying to change
13 anything. I just thought that should be put into
14 context.
15 HEARING OFFICER: Okay. Well, I guess from what
16 I have been hearing from the various parties today is
17 that it is anticipated there will be if the process is
18 successful, there will be a modified SWIM plan at some
19 time.
20 Now exactly what form that will take, whether
21 that will incorporate some of these funding issues
22 that you are talking about, even if they weren't in
23 the existing plan, you know, I guess it is premature
24 just to take, to know whether that will be
25 incorporated or not, but I have always raised and
38
1 always been concerned about the procedural aspects of
2 adopting a modified plan, you know.
3 I don't know that we need to address that today,
4 and I would assume that is something that the parties
5 are looking at and will be able to brief me on, if and
6 when we get to that point, but that goes back to the
7 point of entry issues as related to this and also just
8 some general reconciliation of the provisions of the
9 APA with the Marjory Stoneman Douglas Act.
10 But if and when we get to that point I would
11 expect the parties to be able to brief me on those
12 issues.
13 MR. BURGESS: Mr. Hearing Officer, this is Rick
14 Burgess on behalf of the League.
15 I just wanted to state for the record, having
16 been through two separate 30-day stays in the past and
17 based on the enormity that we face in the next 90 days
18 in the negotiations as set forth in the framework of
19 the statement of principles, the 90 days was selected
20 because we were attempting to negotiate in 30-day
21 blocks of time.
22 The necessity after perhaps the first two weeks
23 of negotiations to start looking at resumptions of
24 discovery and meetings with the multitude of other
25 parties and contacting consultants with respect to
39
1 availability for depositions and the like we found in
2 the initial two 30-day periods, it becomes
3 self-defeating, and that is why the 90 days would be
4 preferable.
5 Our preference would be to have a 90-day stay
6 with perhaps reporting more often, perhaps even status
7 conferences to update us every 30 days and 60 days
8 obviously.
9 Just so you understand, the reason the 90 was
10 selected was that way in 30-day increments we could
11 not fully devote ourselves to negotiations and
12 mediations, because we had litigation responsibilities
13 we had to undertake.
14 HEARING OFFICER: I understand the position that
15 it may take 90 days to finalize it and get it in
16 agreement between the parties. I understand the
17 complexity of that. If progress is being made, that
18 probably, as long as adequate progress is being made,
19 then it probably is an appropriate time period to
20 finalize it.
21 I want to make sure I have the ability to monitor
22 the progress that has been made in the discussions, so
23 if that does fall apart it is not an automatic 90-day
24 period that it will be delayed. I just want to make
25 sure that I have the ability to monitor the progress
40
1 of these discussions that are taking place, so that if
2 they do break down and fall apart there is not an
3 automatic 90-day period that this whole thing is going
4 to be delayed.
5 If, for example, two weeks into this the parties
6 realize that they are back to square one and can't
7 agree on anything, then I want to be in a position to
8 get this case back on track and ready to go to hearing
9 as soon as possible.
10 MS. PONZOLI: Mr. Hearing Officer, this is Suzan
11 Ponzoli for the United States. I think while you
12 didn't say it, I think I sort of understood you that
13 way, that you were disposed to the 90 days, but you
14 were not giving it to us all at one time.
15 I would agree that it is a significant problem if
16 we have really only been given a 30-day stay and there
17 was no presumption that we could rely upon, because
18 there is a significant startup period at the end of
19 the 30-day stay for re-establishing depos, but I think
20 I could live with what you are saying, because I think
21 you are saying, "If you work hard at it, and you are
22 showing progress, you will get the two additional
23 periods of time." Is that correct?
24 HEARING OFFICER: Right. That's exactly what I
25 am saying.
41
1 MS. PONZOLI: Okay. I can live with that. I
2 think we are okay.
3 HEARING OFFICER: I don't expect you to come back
4 in 30 days and have it worked out, everything that you
5 told me it was going to take 90 days to do. I expect
6 that it will take all of the 90 days to try to put it
7 together if you are going to be successful.
8 So where that will leave Mr. Lehtinen and those
9 parties who will not be in agreement, I think that is
10 something that we can develop as the 90 days progress,
11 and it is one of the things that I will be interested
12 in hearing from Mr. Lehtinen and Mr. Green and the
13 others who may not be in agreement with the technical
14 plan or the modifications that are coming about.
15 I would be interested to hear their positions as
16 we are progressing and to hear any suggestions that
17 they may have as to what will be necessary to get the
18 case ready to go to hearing, assuming that we are
19 going to hearing on a modified plan.
20 MR. LEHTINEN: Mr. Hearing Officer, this is
21 Dexter Lehtinen. In line with what you said I would
22 just add we are a little confused, and it could not be
23 resolved today, but I agree with you I haven't been
24 able to figure out whether it would be a remand,
25 whether the Board could adopt the plan, and this isn't
42
1 settlement of litigation, outside litigation. This is
2 apparently to be settlement of a SWIM challenge, and
3 that I do not believe would have the same ruling that
4 you might be able to settle outside litigation and
5 start over and have your point of entry on the SWIM
6 plan then.
7 When you actually agree to settle a SWIM
8 challenge by amending the SWIM plan I think the effect
9 would be that they did amend the SWIM plan.
10 I don't mean to argue it, but I just mean for
11 everyone listening the points you are raising, Judge,
12 are correct to have everybody think about now, because
13 the rights of the parties will depend a great deal on
14 guidance as to what the legal effect is of what is
15 happening.
16 Sometimes if something has already happened and
17 then it is realized that it had a different legal
18 effect than what was anticipated, it can wipe out some
19 rights at that point.
20 I am not disputing anything now, but I think
21 those unstated, and I have asked many times of
22 counsel, "What legally are you trying to do? What
23 will the settlement be? Who will waive their rights
24 to challenge future SWIM plans? Who will waive their
25 120.57 or indeed 120.54 rights in the future? What
43
1 happens to all of those other farmers who have not
2 waived their rights? How do we avoid litigation if
3 indeed we do another SWIM plan that is subject to
4 challenge?" And I just mention it because I think all
5 those points are real important to my client.
6 If they were to agree because this settlement
7 gave certainty, I don't quite see as a lawyer how it
8 gives certainty against the other 10 million
9 challengers who might hold it up the same way. I just
10 mention that in passing.
11 HEARING OFFICER: Well, I don't intend to adopt
12 any procedure that would involuntarily extinguish
13 anyone's rights.
14 I think that what I am attempting to do is to
15 make sure that what we are litigating over is a known
16 quantity, so that we've got the District's final
17 version of the plan before us, so that the parties
18 know exactly what it is that the District is
19 attempting to do and how it impacts upon them, and
20 then they have the right to challenge that in the
21 120.57 proceeding.
22 I do not intend to involuntarily extinguish
23 anyone's rights along these lines.
24 MR. LEHTINEN: Judge, this is Dexter Lehtinen
25 again. I understand what you said, and I appreciate
44
1 what you said, because I think it makes sense.
2 I think it is the most sensible way for you to do
3 it legally in light of what is being done.
4 I do think it is quite inconsistent with what the
5 parties represent this to be to the public. I don't
6 mean that to dispute your interpretation of it.
7 But I said that to the Board yesterday, and the
8 Board and its lawyers all insist that it really
9 doesn't have the effect of what you said, when legally
10 I think you are right.
11 I think what they are doing is they are
12 advertising an advanced disposition to amend the SWIM
13 plan, but when you stand in front of them they know
14 the legal significance of that, and they say, "No, we
15 are no where near that. That is not right at all."
16 I mean, it is rather humorous to see the
17 different forums and the different postures that they
18 are taking in the different forums. I will end with
19 that, and I appreciate what you said. Thank you.
20 MR. GREEN: Mr. Menton, if I could, this is Bill
21 Green again, just on three quick points.
22 We have also more than a passing interest in how
23 the SWIM plan amendment process should appropriately
24 be done, whether if there is a mediated plan in 90
25 days the existing challenged plan would be pulled and
45
1 the Douglas Act process would be gone through, or how
2 that is done. I would only urge that, you know,
3 perhaps the District should be asked to file a
4 memorandum explaining their view on that, since it is
5 their responsibility, or there ought to be a way to
6 resolve that, I would hope.
7 HEARING OFFICER: Well, I think probably the
8 appropriate thing to do would be to let the District
9 focus on trying to finalize their agreement, if they
10 can, and to come up with a technical plan, and then
11 come back and brief exactly how they intend to go
12 about adopting it and what implications that has for
13 other parties who may be substantially affected,
14 including those who are already parties to the
15 litigation, as well as perhaps those who are not.
16 I think as Mr. Nettleton pointed out, some of the
17 issues that are under discussion now are beyond the
18 scope of the current SWIM plan. If that is the case,
19 then there very well may be parties who are
20 substantially affected as a result of the technical
21 plan that may be adopted or modified SWIM plan that
22 may be adopted who were not affected before, and how
23 they have a right to protect their interests I think
24 is an issue that needs to be looked at and resolved.
25 MR. GREEN: Yes, sir.
46
1 HEARING OFFICER: I think the appropriate way for
2 that to be handled is to give those parties who are
3 involved in these discussions and who want to be
4 involved in the discussions an opportunity to sit down
5 and try to work out the technical plan and decide upon
6 the exact scope and nature of the modifications to the
7 SWIM plan that are necessary and then come back and
8 advise me as to how they intend to go about it and
9 give everybody an opportunity.
10 MR. GREEN: Yes, sir. That sounds, we appreciate
11 that.
12 The second point I had is I tend to concur with
13 Mr. Burgess and Ms. Ponzoli about the practical
14 difficulties in living from 30 days to 30 days in
15 depositions.
16 We would not object to what I thought you were
17 saying earlier, if you decided that a 90-day stay was
18 in order, but you had checkpoints at 30 days and 60
19 days or whatever where you could collect information.
20 We don't object to that, and as long as there is
21 a way to deal with that on a regular basis I don't see
22 a big difference there.
23 What we don't want to get caught up in is
24 calling, you know, 100 witnesses the last week of
25 every 30 days to try to reach new deposition
47
1 schedules, and I think you indicated you were
2 sensitive to that.
3 I just have one last point. This was the more
4 mundane point that I mentioned earlier, and I really,
5 we were supposed to be providing privilege lists to
6 one another for depositions, and that hasn't routinely
7 happened, and that has caused us some concern
8 particularly in the last week or so.
9 I would ask whether the United States would be
10 willing to exchange privilege lists in a week for
11 Doctors Walker, Kadleck, Jones, and Parks, and
12 Mr. Gherini, which they haven't gotten, and I would be
13 glad to provide it, and I think we ought to get that
14 done, Your Honor.
15 That is not going to take negotiators' time. It
16 is fair and appropriate. I would ask you to consider
17 that. Of course, Ms. Ponzoli needs a chance to
18 respond to my suggestion.
19 MS. PONZOLI: This is Ms. Ponzoli. Mr. Green was
20 on the phone with me yesterday, and he didn't mention
21 that he would be asking for this today, which would
22 have given me an opportunity to have dealt with him
23 with that.
24 MR. GREEN: That's true.
25 MS. PONZOLI: I believe that when you take the
48
1 burden of litigation away you take it away completely,
2 and the principal negotiators for settlement will be
3 the principal litigators, so you are not taking any
4 burden away from us when we have to go back and do
5 these things.
6 Mr. Green owes me a significant number of
7 privilege lists, as does the League, as do all parties
8 owe all parties, so this would not be lifting
9 litigation responsibilities if you were to grant
10 Mr. Green's request.
11 We would all have to go back to the drawing board
12 and figure out what everybody owes everybody and start
13 bickering over it.
14 MR. GREEN: I only want Walker, Kadleck, Jones,
15 and Parks. It is an informal understanding we would
16 have had them weeks ago, and we haven't gotten them.
17 That's what I am asking for, Your Honor.
18 MS. PONZOLI: We never received the Cooperative's
19 or Mr. Wedgworth's, and I would have to go back and
20 see what I haven't received from you, Mr. Green, and
21 had you shown me the courtesy of raising this
22 yesterday I could have my list ready.
23 So I think we really, we asked for a stay, and we
24 agreed to a stay, and you granted a stay.
25 HEARING OFFICER: Well, Ms. Ponzoli, I tend to
49
1 agree with you. I think if we start getting into
2 making exceptions to the stay then we will be arguing
3 over exceptions forever, and that is contrary to the
4 intention of granting the stay.
5 Mr. Green, if we get back on track on the
6 litigation mode you can bring it up and hopefully get
7 that resolved right up front. If not, we can take it
8 up then.
9 MR. GREEN: Thank you, Your Honor.
10 HEARING OFFICER: Okay. Are there any other
11 matters we need to discuss today?
12 MR. KILLINGER: Mr. Menton, this is Lee Killinger
13 again. You brought up the point that the permitting
14 case has not yet been formally consolidated with this
15 case, and I think therefore the motion that was filed
16 for a stay in this case probably only adds the
17 captions and the case numbers of the SWIM case.
18 What I am wonder is I think the intention of all
19 parties was to have it apply to the permitting and to
20 the SWIM challenge, but I want to know if we can
21 formally address that so that it is clear on the
22 record?
23 HEARING OFFICER: Okay. Well, technically I
24 don't think anything has been done with t