4
PROCEEDINGS
2 (WHEREUPON, THE HEARING COMMENCED AT 9:03 A.M.,
3 AT WHICH TIME MS. KAVANAUGH, MS. HANDELSMAN, MR. HYDE, AND
4 MR. KOBELINSKI WERE ABSENT FROM THE HEARING ROOM.)
5 HEARING OFFICER: I have received responses from
6 each of the petitioners to the U. S. request for entry
7 upon land for inspection and other purposes. I have
8 never received the request for entry by the U. S.
As I understand it from reading the responses what
we're looking at is the U. S. has requested an entry
upon petitioners' land for testing purposes or whatever,
but we have not received the request for entry that the
U. S. has filed.
MS. PONZOLI: Well, I filed it yesterday, Mr.
Hearing Officer, a motion to compel. Have you
received that?
HEARING OFFICER: I have not received it.
MS. PONZOLI: The request was attached to that. I
have an additional copy. Do you have your copy?
(Handing document to Hearing Officer.)
HEARING OFFICER: All right. Thank you. I have a
couple of housekeeping matters. Our Clerk's Office
asked that I make sure that everyone understands any
pleadings that are filed in this case should be filed
25 referencing all three case numbers, and they are all
5
1 going to be filed as Case No. 92-3038. That is going
2 to be the ongoing docket. If you need to check the
3 docket, everything will be filed under the lower case
4 number. That's the way it works.
5 Some of the pleadings I think have been filed in
6 each of the three separate cases. There is no longer a
7 need to do that. Just file the original and one copy,
8 an original and one, whenever you file something, and
9 the Clerk's Office will keep it all under the lower case
10 number, and then the extra copy goes to me. I keep a
11 simultaneous file, and that way I don't have to take the
12 original out of the Clerk's Office.
13 There may be a little bit, along those same lines I
14 went back through the files the other day, and I tried
15 to make sure that everything got put into -3038, but
16 because of some of the confusion that took place there
17 may be some documents that were filed in both -3039 and
18 3049, etcetera. I think everything is in -3038, as far
19 as I can tell, but during this time period there may
20 have been a little bit of confusion, so if it ever
21 becomes necessary someone needs to go back through the
22 record or to check on that, hopefully from this date
23 forward everything will be filed in -3038.
24 And as we discussed at the earlier hearing, I
25 recognize that there are different issues raised, but I
6
1 think the easiest way to deal with it is to just deal
2 with one case number, and each of the parties will have
3 an opportunity to present separate issues as need be.
4 (WHEREUPON, A BRIEF OFF-THE-RECORD DISCUSSION WAS
5 HELD.)
6 While we're waiting, let me ask as I guess a
7 hopeful matter will it be necessary for me to read the
8 motion to compel before the hearing this morning?
9 MS. PONZOLI: I think we are down to two issues,
10 but I gave Mr. Green and Mr. Hoffman a copy of it, and
11 they probably are aware of their side's presentation.
12 (WHEREUPON, MS. KAVANAUGH, MS. HANDELSMAN, MR. KILLINGER,
13 AND MR. KOBELINSKI ENTERED THE HEARING ROOM.)
14 I think we're down to two issues, a waiver and
15 stipulation regarding enforcement and some inquiry as to
16 my work product that they feel they should be made aware
17 of.
18 (WHEREUPON, A BRIEF OFF-THE-RECORD DISCUSSION WAS
19 HELD.)
20 MR. OERTEL: We had the same problems yesterday
21 about scope of the work. That's how we see it.
22 HEARING OFFICER: All right. Is everybody here
23 now? All right, this is Division of Administrative
24 Hearings Cases 92-3038, -3039, and -3040, "Sugar Cane
25 Growers Cooperative vs. South Florida Water Management
7
1 District," along with several intervenors.
2 Why don't we start out by having those parties who
3 are in attendance state their appearances, beginning
4 with the petitioners, the Cooperatives?
5 MR. GREEN: Bill Green, my partner, Bob Smith, and
6 Gary Perko here for the petitioners.
7 HEARING OFFICER: All right, and for the Sugar Cane
8 League?
9 MS. KAVANAUGH: Judith Kavanaugh, and with me
10 today are Mark Kobelinski and Bill Hyde.
11 HEARING OFFICER: Okay, and for the Fruit and
12 Vegetable Association?
13 MR. OERTEL: Ken Oertel.
14 HEARING OFFICER: And South Florida Water
15 Management District?
16 MR. REID: Ben Reid.
17 HEARING OFFICER: And for the Miccosukee Tribe of
18 Indians? No appearance. United States?
19 MS. PONZOLI: Suzan Hill Ponzoli.
20 HEARING OFFICER: And DER?
21 MR. KILLINGER: Lee Killinger and Lori Handelsman.
22 HEARING OFFICER: I did yesterday enter an order on
23 Florida Wildlife Federation's petition to intervene.
24 I granted that petition to intervene, along with the
25 same conditions set forth regarding the other petitions
8
1 to intervene, and that is the petition as it is
2 currently framed seeks to intervene in support of the
3 SWIM plan as adopted. Participation will be limited
4 to support of the plan as adopted, absent a petition
5 filed to raise additional issues.
6 So that Florida Wildlife Federation is now a party
7 in the case, and Mr. Guest is in the audience, as I
8 see. Are you here by yourself, Mr. Guest?
9 MR. GUEST: And Steve Grigas.
10 MS. PONZOLI: I failed to introduce Tom
11 Watts-Fitzgerald on behalf of the U.S.
12 HEARING OFFICER: Okay. Just to reiterate what
13 I mentioned earlier, Ms. Kavanaugh, I think your office
14 has been doing this, but the Clerk's Office has asked
15 that I mention to all the parties that any pleadings
16 that are filed should be filed referencing all three
17 case numbers. All pleadings that are filed will be
18 filed under Case 92-3038, and that will be the ongoing
19 docket for all the cases.
20 There has been a little bit of confusion, because
21 some of the pleadings that were filed have, you know,
22 just one of the case numbers, but we now hope everyone
23 will follow the procedure of listing all three cases
24 with the 92-3038, and all pleadings will be filed
25 that way.
9
1 MS. KAVANAUGH: With the three numbers?
2 HEARING OFFICER: That's fine. That's appropriate.
3 The original and one should be filed with any pleading
4 with DOAH.
5 Also, as I mentioned, I had received a response
6 from you filed as well as the other petitioners to the
7 U. S. request for entry onto land. I just this minute
8 was handed a copy of the request. It was not filed with
9 us.
10 So I have not at this point seen or reviewed the
11 U.S. request for entry upon land. So I don't know
12 what issues we have to deal with on that, but I have
13 not yet read that nor the motion to compel that was
14 filed yesterday.
15 MR. WATTS-FITZGERALD: Mr. Hearing Officer,
16 at the same time as the filing of the motion filed on
17 behalf of the United States for entry on land, the
18 United States filed a reply to a motion for order
19 compelling discovery that the Florida Sugar Cane
20 League filed on I believe the 30th or somewhere around
21 there, and our reply to that was filed yesterday as
22 well, and I wondered if you received that.
23 HEARING OFFICER: No, I have not received the
24 reply. Generally what happens is if it's filed in the
25 late afternoon unless it's marked expedited the Clerk's
10
1 Office keeps it and files it, and I won't usually get it
2 until the next day, so it may be in my mailbox this
3 morning. I haven't seen it.
4 MR. WATTS-FITZGERALD: It may be convenient for
5 me to give you a separate copy.
6 HEARING OFFICER: Yes, I will take that now.
7 With the exception of the request for entry upon land
8 by the U.S. and the motion to compel and the response
9 handed to me, I believe I have reviewed all the
10 other documents that have been submitted, including
11 various witness lists that the parties have provided.
12 With respect to the witness lists let me reiterate
13 a point that I had made before. I expect and hope that
14 everyone has proceeded with the approach to full
15 disclosure with regard to witnesses and that any
16 witnesses that may be called have been disclosed and
17 the area, the general nature of the testimony, has at
18 this time been provided to the extent it's possible.
19 I recognize in looking at those a lot of experts'
20 opinions have not yet been finalized, but I do expect
21 everyone is proceeding under the assumption that
22 any expert that may be called has been disclosed at
23 this time.
24 I know the final cutoff date is not until
25 October 26th, but I expect everybody has at this point
11
1 disclosed all their witnesses, and hopefully we
2 won't have any problems along those lines.
3 All right. Having said that, as I indicated, I
4 have gone through the witness list. I know there are a
5 number of witnesses who haven't completed their studies,
6 and I also know we have several issues regarding
7 access to the federal properties and apparently to the
8 petitioners' properties as well. Where do we stand on
9 that?
10 MR. REID: If I could, as I told you we had
11 some agreements that I wanted to announce, and then I
12 think, because there is a depo list, we'll leave that
13 until the end, if that's okay.
14 HEARING OFFICER: Ms. Kavanaugh?
15 MS. KAVANAUGH: Well, I would like to just get to
16 request for access and entry. I think everything else
17 we have agreed to between ourselves and hopefully
18 won't be any issue.
19 HEARING OFFICER: Okay.
20 MR. REID: I just want to put this on the record
21 and also some relate to this that you need to know that
22 we agreed to.
23 With regard to the issue of the brief on
24 jurisdiction, I'm sorry, on the burden of proof and
25 those issues, we have agreed to file simultaneously
12
1 briefs within 30 days on that issue.
2 Each side will then be entitled to a single reply
3 within about 15 days.
4 We would like to have an oral argument on that
5 at an appropriate time.
6 HEARING OFFICER: Okay, 30 days from today?
7 MR. REID: That would be fine. Sure.
8 HEARING OFFICER: And 15 days after the simultaneous
9 filing for replies, so we are looking at sometime in
10 October. I think we have a date scheduled in late
11 October.
12 MS. KAVANAUGH: Yes, sir, we were kind of shooting
13 so perhaps the time would take us there.
14 HEARING OFFICER: All right, why don't we go with
15 that date, the scheduling it for October already.
16 MR. OERTEL: We also agreed there would be a
17 limit of 20 pages...
18 MR. REID: Yes.
19 MR. OERTEL: ...and that each side would submit
20 joint briefs. In other words, each side of the table,
21 the two sides of this issue. All representatives
22 would cooperate and submit one brief per side.
23 HEARING OFFICER: Thank you.
24 MR. REID: We have, with regard to discovery, that
25 was one of the required purposes for our meeting
13
1 yesterday, for the September discovery, the two weeks
2 of each, we are going to identify, we have identified
3 now, each side has identified people who are ready to be
4 deposed.
5 The petitioners are going to be able to depose all
6 of our people first, the first two weeks, and we have
7 agreed to depose their people the second two weeks, and
8 we have those, we have exchanged those lists, and they
9 are scheduled.
10 The October round of depositions we have agreed
11 that each party will select the witnesses they wish to
12 depose from the other side, subject to all the obvious
13 requirements in the rules and so forth.
14 MS. KAVANAUGH: So just to make sure there is no
15 misunderstanding they can identify 10 witnesses, we have
16 identified eight, and we all understand it is
17 unlikely that all of those first 10 will be completed
18 in the first two weeks, so we can choose from the group.
19 MR. REID: They have told us to have six ready to
20 start with, and we'll arrange those.
21 We have a hearing scheduled on the 29th of
22 September. It is one of the regularly scheduled ones.
23 We would like to have you if it would be possible to
24 have this in the afternoon, because we would like to
25 have a counsel meeting, and from doing it yesterday we
14
1 thought we could do it on the same day. If the
2 hearing on the 29th could be at 1:30 or one o'clock or
3 two or something like that...
4 HEARING OFFICER: Why not 2:00 p.m."
5 MR. REID: Okay.
6 HEARING OFFICER: That will give you an opportunity
7 for lunch.
8 MR. REID: Okay. During the, during our
9 September 20th meeting we intend to talk about the
10 November/December round of discovery, and we'll know
11 where we are at that point, and we'll set those.
12 We requested that the petitioners, some of the
13 petitioners, this isn't necessarily universal, give us
14 partial opinions in their filings. Essentially when a
15 witness had developed some opinions but still had
16 others, they didn't include the ones they had, so they
17 have agreed to supplement and give us any partial
18 opinions that were not disclosed the first time around.
19 We also requested to some extent, there were no
20 dates given when they would have the opinions, the people
21 that don't have them, and we have talked about that,
22 and I think that will be worked out, subject to some of
23 these other issues.
24 HEARING OFFICER: Okay.
25 MR. REID: I think that covers all of the issues
15
1 that were outstanding with regard to agreement that
2 we made.
3 There are, as you know, cross requests for access,
4 and I'll just conclude by saying it appears that as far
5 as the protocol or, there is general agreement,
6 certainly general agreement, that access can be had,
7 and it can be done a certain way, and we really were
8 able to narrow it down to two issues.
9 The first issue is whether the governmental
10 agencies could agree they would not use anything they
11 found in any other proceeding, and the governmental
12 agencies could not agree to that, so that will be
13 submitted for your consideration after argument.
14 The second issue that remains outstanding is
15 what can we do with the samples we get? In other
16 words, our position is when we get the samples, we get a
17 jug of water, we ought to be able to take it back
18 with us once they know we've got it, and we ought to be
19 able to go back and test it any way we want to test it,
20 and that's up to us.
21 They think we ought to have to say ahead of time
22 what we're going to test it for. Those are two issues
23 that I think are outstanding, and with that I'll turn
24 it over to the United States, because it's their
25 motion.
16
1 MS. KAVANAUGH: May I state it's my understanding
2 the United States' request for access onto our lands,
3 you have just received that. We have not yet responded.
4 We received the motion to compel yesterday, and I
5 thought when you were indicating you would like to defer
6 that, certainly I would like to finish our testing
7 protocol, which of necessity we believe has to begin on
8 September 1st, would like to perhaps get it out of the
9 way.
10 I'm in a position to try and argue, but we have
11 only had the motion to compel since yesterday.
12 HEARING OFFICER: I understand if you need
13 additional time to respond, but since we have everyone
14 here I think it's best if we try to get all of these
15 issues laid out and see where we are. I haven't read it,
16 you see.
17 MR. REID: I think you need to understand, I
18 think they have filed objections a week or so ago.
19 That's what you have to argue. They knew about that,
20 and they filed objections. In fact, they didn't get
21 the motion to compel...
22 MS. KAVANAUGH: If I could suggest, I think the easy
23 one is going to be the first one, our motion to
24 compel, because I think we are very close to closure
25 on that issue, and it's boiling down to essentially a
17
1 legal question.
2 HEARING OFFICER: Okay. Well, let me just back up
3 a second. As I understood from Mr. Reid, there are
4 two issues. One is whether the information that is
5 obtained from the petitioners as part of discovery can
6 be used for other purposes. That's not really outlined
7 in any of the objections I read.
8 MR. REID: They just raised that yesterday.
9 HEARING OFFICER: It's not really within the scope
10 of the motion to where that's been filed yet.
11 MS. KAVANAUGH: We did raise the objection as an
12 invasion of property rights, and I would like to add
13 based on the agreement yesterday we prepared a
14 proposed reciprocal protocol. Assuming the legal
15 objections could be overcome, both sides, of testing,
16 the general terms that perhaps we could agree to, and
17 it was Mr. Reid's request, and the rings under my eyes
18 reflect I got it done, and we haven't had a chance to
19 discuss it.
20 I think there are several other aspects raised,
21 but objections are still at issue other than the ones
22 Mr. Reid raised, and primary one is that the respondents
23 will not tell us what they are testing for, what the
24 test methods are they will use.
25 They have raised that in objection to our
18
1 request. We have said we will specify by Wednesday
2 exactly what parameters we will test for and the
3 treatment we will use, because it does relate to
4 relevance, as they brought out in response to our
5 request, but it's a major obstacles we have not been
6 able to overcome.
7 We have agreed to test for phosphorus, which is
8 obviously a major issue, but we would like to know if
9 they are planning to test for other things.
10 For example, they want to use a Hexaphase model.
11 It's something that samples for hydrocarbons or
12 pesticides, and we have already...
13 HEARING OFFICER: Let me interrupt for a second.
14 I'm getting a little bit confused, because my knowledge
15 of what the dispute is is limited to the motions that
16 have been filed with me and that I have reviewed. We're
17 talking about issues obviously you discussed between
18 yourselves that I haven't.
19 So I'll give you an opportunity to do that, but
20 before we get into that I guess I want to make sure I
21 understand where we are.
22 Let me just make one observation, too, that I
23 forgot to bring up before. I noticed that the request
24 for entry upon land that was filed by the League, there
25 was no corresponding motion filed by the other
19
1 petitioners, and I would like to make sure that we've
2 got everybody on board, because I don't want to have to
3 deal with the issue again.
4 If any of the other petitioners wish to have access
5 to the property or to do any testing they should
6 coordinate that as part of their proceeding that's going
7 on now, because I don't want to have to revisit that
8 issue.
9 MR. WATTS-FITZGERALD: In the document we filed
10 the reply to the Sugar Cane League motion to compel,
11 Exhibits C and D are two letters received by the
12 United States in response to a specific inquiry by us to
13 the Coop petitioner group and the Fruit and Vegetable
14 petitioner group saying basically are you seeking
15 independent entry, or do you wish to avail yourselves of
16 the observer status in regard that the League offered in
17 their entry motion and we offered in ours, and the
18 two replies both preserve the rights to seek entry.
19 One I believe is the Coop said they wanted observer
20 status at this point, and they would have an entitlement
21 under the proposal of the Sugar Cane League to ask for
22 replicate samples at the same time.
23 The Florida Fruit and Vegetable Association in their
24 allied interests said I believe they wanted to preserve
25 their right to seek entry if they so chose, but were not
20
1 asking for entry at this time.
2 So the issue has been addressed and perfected to
3 some degree.
4 HEARING OFFICER: It sounds like it has not been
5 resolved. I'd like to hear from the other petitioners
6 what their position is, you know, whether they will be
7 seeking some other form of broad access.
8 MR. GREEN: On behalf of the Sugar Cane Growers
9 Cooperative I think that Mr. Fitzgerald accurately
10 portrayed our position. We would like to pool our entry
11 interests in with the League and to coordinate and
12 minimize duplication. I think we can do that.
13 However, we would like to reserve the right if
14 discovery justifies to seek additional entry if
15 necessary, but we will not do that lightly. We
16 understand you will scrutinize it carefully.
17 At this point we think our interests can be
18 protected.
19 MR. OERTEL: I would say, Your Honor, with virtual
20 certainty the Association can rely on the League and
21 others here in this case to protect our interests and
22 get the information. We don't need to do it
23 independently.
24 Again, as Mr. Green said, to make sure we don't
25 waive any right, we don't expect to exercise an
21
2 other parties.
3 HEARING OFFICER: Well, Mr. Green, I think your
4 point is well taken. I think it's impossible to
5 anticipate what may come up in the future, and there may
6 be a need for further entries, but if it's possible I
7 want to see all these issues resolved on this go-around,
8 and if we need to take it up we will take it up again in
9 the future, but I will scrutinize that very, very
10 carefully if we need to do that.
11 Okay. Now as far as the actual issues that were
12 raised in the request for entry and the objections and
13 the correspondence I have received on that, as I
14 understand what you're saying most of those have been
15 resolved in terms of the number of times or the monthly
16 access and some of those issues that were presented
17 before. Is that right?
18 MS. KAVANAUGH: With regard to the park and
19 refuge. We have I think one mechanical issue left as
20 to whether there may be duplicate, split samples of
21 soil cores. That's the only thing left on the table
22 other than the legal question of the special use permit
23 issue.
24 MR. WATTS-FITZGERALD: Respectfully, I have to
25 differ. We did reach some agreement on quite a number
22
1 of issues, far more than we had reasonably hoped we
2 would. But there were a number of issues that were
3 never addressed, including the number of entries, and
4 even more troubling the duration of the planned testing
5 program. That may need to be addressed.
6 We really need a few minutes to look at the
7 protocol that has been proposed by counsel for the Sugar
8 Cane League, and if I may suggest it might be an
9 opportunity if we could have a few minutes to do that
10 and to more thoroughly define the issue for the
11 remainder of this session, and it might afford you the
12 opportunity to glance through those documents.
13 The legal standards that will apply to some of the
14 issues would then be briefed from both sides, because
15 the Sugar Cane League can give those in their motion to
16 compel, and we have responded.
17 In fact, we agree on some and have different
18 objections on others.
19 HEARING OFFICER: All right. Why don't we take a
20 10- or 15-minute break and see if you can get together
21 and go through the protocol and see where we are.
22 I think the important thing I wanted to get
23 accomplished today is to make sure we got an
24 understanding on the basic issues that were necessary to
25 get the whole process started.
23
1 Now if there are some timing issues so far as
2 duration and those things, those can be resolved as time
3 goes on and may not necessarily have to be resolved as
4 time goes on once the results come in and experts are
5 able to determine how much access they need or whatever,
6 or how long the testing has to go on.
7 The most important thing I want to see resolved
8 today is that the process get started, and we get the
9 ball rolling.
10 Why don't we take about a 15-minute break and see
11 where we are.
12 (WHEREUPON, THE HEARING WAS RECESSED FROM 9:30 A.M.
13 TO 9:45 A.M.)
14 Where are we?
15 MS. PONZOLI: We aren't at agreement. I suppose...
16 HEARING OFFICER: I thought you were going to tell
17 me you settled that case.
18 MS. PONZOLI: I wish. That will be a happy day.
19 MR. GREEN: An earlier point, if I could.
20 Mr. Menton, we were a little concerned about some of the
21 discussion, preliminary discussion, on the witness list,
22 because it was our understanding, and I don't think what
23 you said is consistent with our understanding, but I
24 would like clarification.
25 We have provided a list of fact and expert witnesses
24
1 in our best judgement that we currently expect to call.
2 We have not included persons that we are not sure about
3 or persons that would respond to discovery that has not
4 yet been answered in depositions and the issues have not
5 been framed, because we have not received the responses
6 to interrogatories.
7 When you said you had expected we would disclose
8 anyone who may be called, that you had a different
9 intent than your order reflected when it says does it
10 now expect to call, we want to be sure we're not
11 foreclosing the opportunity to respond to the issues as
12 they develop, and I respectfully request clarification.
13 HEARING OFFICER: Well, I understand that issues
14 may develop and there may be additional witnesses, but
15 if you have experts you have retained that are
16 undergoing study or have begun to do some analysis, then
17 I think there's, it's a pretty good likelihood they may
18 be called and that they may be disclosed, just so
19 everybody knows the issues and the potential witnesses
20 that are involved.
21 I think you should err in disclosing witnesses who
22 may not be called, rather than holding back witnesses
23 that may end up being called in the future.
24 MR. GREEN: But we are able to follow it with
25 witnesses, and you don't...
25
1 HEARING OFFICER: Certainly if there are issues
2 that come up as part of the discovery of experts that
3 the U.S. Government or the Water Management District has
4 that require experts that or analysis previously that
5 had not been anticipated, then certainly you can
6 supplement your witness list, but on the other hand if
7 you have witnesses now that are undertaking analyses,
8 you know, I think a lot of the issues are clear as to
9 what we are dealing with.
10 If you have witnesses that are conducting analysis
11 they should be disclosed, even if you're not sure
12 whether or not you will need to call them. You should
13 err on the side of disclosing whatever witnesses who
14 have already begun analysis.
15 MR. GREEN: For fact witnesses, of course, they may
16 develop as the case goes along. We have certain issues.
17 I think you clarified it to my satisfaction. Are you
18 satisfied with that?
19 HEARING OFFICER: He's shaking his head.
20 MR. SMITH: Well, let me speak. Let me be
21 forthright about it, Mr. Hearing Officer. You recall I
22 presented last time we were here a motion to stay
23 predicated on the unlawful, unconstitutional coercion of
24 the State of Florida by the federal court without
25 jurisdiction in the composition of this illegal plan.
26
1 The Hearing Officer made a judgment about that,
2 considered my motion, and denied it.
3 I filed in the Fourth District Court of Appeal a
4 petition for a review of a nonfinal administrative
5 action, asking the Court both as temporary relief to
6 stay proceedings and indeed to stay the entire matter
7 until that court or after a full and fair hearing a
8 federal court resolves the jurisdictional issue.
9 The District Court issued an order to show cause,
10 and the responses are due from the allied federal and
11 state governmental people on Monday.
12 I have not undertaken in this condition of things
13 to do a massive search for fact witnesses if this
14 proceeding is not stayed yet to prove the facts about
15 the coercion effect of the federal litigation upon the
16 state agency, requiring them to capitulate to the United
17 States' demands.
18 If I'm under an obligation notwithstanding what we
19 read the order to say, what we expect now, if there's a
20 sheen on that that I misunderstood and I do not have
21 until October to fully develop that witness list and
22 initiate the discovery I'd like to be advised of that,
23 and I think this issue perhaps falls in a little bit
24 different category. But if it doesn't I'd like a week
25 to get moving.
27
1 HEARING OFFICER: No, I think you're right. It
2 does fall in a little different category. My comments
3 are directed mainly towards expert witnesses.
4 MR. SMITH: Thank you.
5 HEARING OFFICER: I think what I want to make sure
6 that everybody is doing is if they have experts out
7 there who are doing studies that may be called as
8 witnesses, they'll be disclosed, so the other parties
9 have some way to begin a literature search.
10 So really my comments are directed mainly towards
11 the expert witnesses.
12 MR. SMITH: Thank you.
13 MS. PONZOLI: Mr. Hearing Officer, the United
14 States I believe has done that, and I guess we would
15 invite the Coop and anybody else who is a little
16 uncomfortable with those comments this morning when
17 they supplement next week by Wednesday that they
18 supplement any additional witnesses that somehow cause
19 them discomfort that might fall into maybe this
20 category, because it's just clear there is a certain
21 level of discomfort on certain parties' parts, and I
22 would invite them to please do that, because I believe
23 we have.
24 HEARING OFFICER: Okay. All right. So you are
25 saying you are asking that everybody have or at least
28
1 within a week can supplement any disclosures that have
2 already been made as to witnesses, especially expert
3 witnesses that may be called in the future?
4 MS. PONZOLI: That's right.
5 MR. SMITH: May I have the issue I described
6 excepted from that?
7 HEARING OFFICER: I think your factual witnesses on
8 those matters, to the extent you know those witnesses
9 are disclosed, but I understand...
10 MR. SMITH: The witnesses are known better to them
11 than to me, and I'm relying on the Fourth District to
12 give me relief, but if I don't I really believe that's
13 the appropriate time to crank up this issue if October
14 has not yet arrived.
15 HEARING OFFICER: I agree with you, and I think
16 the most important thing in my mind is in terms of
17 disclosure, the factual witnesses, the facts and what
18 they are.
19 MR. SMITH: Yes, sir.
20 HEARING OFFICER: But experts I think require
21 more background research on history, and I think that's
22 why early disclosure is essential with respect to
23 that.
24 MR. WATTS-FITZGERALD: We would take the contrary
25 position we know no such witnesses, because as a legal
29
1 matter it never occurred.
2 HEARING OFFICER: Well, we're getting into argument
3 now that we don't really need to get into, you know, and
4 at some point we may have to address what role those
5 issues play within the scope of the proceeding, but
6 that's not today.
7 All right. Any other issues along those lines we
need to take up? Okay. Where are we then on the access
9 issues and objections that have been filed?
10 MS. KAVANAUGH: With regard to our request, which
11 is the first one briefed, apparently we cannot agree,
12 and there do remain some objections.
13 The primary objections, and I'm sure Mr. Fitzgerald
14 will supplement, as I understand them to be now, are
15 the number of times, the number of sampling days per
16 month.
17 The United States has taken a position we only need
18 two days. Our scientists say we need four.
19 The United States is concerned, because we believe
20 the appropriate sampling programs require 12 months, but
21 I have represented we fully understand we have to go
22 with what we have by the time discovery cutoff occurs,
23 so that our experts will have opinions when it gets to
24 be that time, whether they think 12 months is better or
25 not, but we understand that.
30
1 We are looking at actually a six-month period,
2 which is what we anticipated, to finish by February in
3 accordance with the scheduling order, and arrange for
4 those experts to be deposed.
5 The other area is the question as I have indicated,
6 the soil cores and whether or not they should be split.
7 Our scientists say that will give them bad data if they
8 are compelled to actually split the sample, because they
9 seal it, and this is what they tell me.
10 We have proposed replicates, side-by-side soil
11 samples, and we certainly are willing to share raw data
12 if indicated, but we think it important. We are at an
13 impasse. They want to split soil samples. We have
14 agreed to split the water samples as well as replicate
15 them.
16 HEARING OFFICER: All right, going back to the
17 first one in terms of the number of times, if I
18 understood from reading the motions there is no dispute
19 to the park, that there is just a period at the outset
20 that concerns the refuge where there is some question as
21 to ongoing access, is that right?
22 MR. WATTS-FITZGERALD: Yes, Mr. Hearing Officer, to
23 the extent, as we pointed out in our objections
24 initially, that any surveillance flights be rolled into
25 the seven- to 10-day maximum period, the one-time
31
1 location and subsequent sampling within the park to
2 occur.
3 We have a great number of scientists collectively
4 on the respondent/intervenor's side of the case who
5 have more time in the Everglades collectively than
6 probably any of us have alive today, all say the same
7 thing, that it can be done in incredibly less time than
8 requested.
9 I understand once the 636 physical samples, not
10 counting replicates, are taken by the League that, you
11 know, they are done and they go home, because essentially
12 whatever should come in would terminate at that point.
13 But we do feel that work expands to fill the time
14 allotted. It's a common principle of management and
15 common sense.
16 Absent, you know, some weather condition or some
17 mechanical failure of the aircraft we'd like to keep
18 that down.
19 I point out in my response and my reply, and I
20 think it's capable of notice under Chapter 22 by you,
21 that these are unique areas, and this includes
22 Loxahatchee, with a special management regime not
23 established by us, not connected to the case directly,
24 but mandated by Congress.
25 The resource managers are mandated to protect this.
32
1 Minimizing impacts is part of this. We do not think
2 that should prolong the testing interests. So long as
3 surveillance is contained to locate suitable sites would
4 be part of that time period, I think we can accomplish
5 that in terms of time.
6 Loxahatchee is...
7 HEARING OFFICER: You're talking again about the
8 park?
9 MR. WATTS-FITZGERALD: Just the park.
10 HEARING OFFICER: Do we have an agreement as to the
11 parks in terms of what he's saying, that the
12 reconnaissance has to be rolled into a seven- to 10-day
13 period provided for or requested in the motion for entry?
14 MS. KAVANAUGH: I don't know, to be frank with you,
15 without talking to the principal investigators, but I
16 think the most we are talking about is a one-day
17 difference, because we anticipated a single overflight,
18 one day in the park, to choose the sites, so I can't
19 say, Mr. Hearing Officer, whether that one day required
20 for the reconnaissance will suffice, looking at that
21 day's sampling data, because it takes time to set it up.
22 HEARING OFFICER: Was that the, didn't you propose
23 September 5th or something like that as the flyover
24 flight?
25 MS. KAVANAUGH: Yes, sir.
33
1 HEARING OFFICER: Did that relate to the refuge and
2 the park?
3 MS. KAVANAUGH: I think one day for the park and
4 one day for the refuge.
5 This is simply because it would take so long. It
6 was going to take a day each for selection of the
7 sampling sites, and the federal observer was to
8 obviously assist us in finding sites that are already
9 there and historical sites where they are sampling.
10 HEARING OFFICER: I'm just trying to narrow this as
11 much as possible. From what I'm gathering there
12 shouldn't be any problem, I mean, maybe there's a one-
13 day difference there, but hopefully that can be worked
14 out, there shouldn't be any problem in getting at least
15 the park aspect of it going, get the overflights and
16 pick the sites and get that testing on the way and
17 completed without any problem. I would anticipate that
18 will occur.
19 So when we're talking now about the refuge, which
20 will require an initial aerial reconnaissance, and then
21 the petitioners are seeking monthly access for four days
22 a month, is that right?
23 MS. KAVANAUGH: Yes, sir.
24 HEARING OFFICER: And the position of the U.S.
25 Government is four days unnecessary?
34
1 MR. WATTS-FITZGERALD: Yes, that's correct. This
2 is kind of a lengthy assessment. They have the initial
3 period set up of the 58 collection devices, taking the
4 initial samples and what not on a series of transects,
5 which is also a problem, and then according to what's
6 being announced today if in fact this cuts off at the
7 end of discovery, which is a very important issue,
8 counting six months, that's 24 days of entry.
9 That doesn't differ tremendously from what the
10 United States estimates is the outside limit to
11 necessary entry under its program.
12 But in fact the original request in terms of a year
13 or 48 days, in fact some of the entry into Loxahatchee
14 for testing under this proposal is one time. It simply
15 is not going to take four days to do that, and again we
16 are reluctant to accede across the board to something
17 far exceeding what's necessary.
18 In both areas the number of samples are an issue
19 that relates to this, because we've got the replicate
20 samples or split samples, depending on how it's
21 resolved, depending on how the United States wants these
22 samples split.
23 The other parties on petitioners' side have
24 indicated they may want samples of their own. It's not
25 clear in some areas they won't.
35
1 Looking at 636 samples, not counting replicates or
2 splits in the Everglades and even more on the
3 Loxahatchee, that takes up a certain amount of space on
4 the aircraft. We really want to keep it down to one
5 aircraft entering and not have the President's entourage
6 stacked up in a holding pattern watching what's going
7 on.
8 But as a practical matter we're talking about
9 coolers on the aircraft, a government observer who will
10 be there, and needs to be there, and when you start
11 considering that and ferrying things out because of
12 distances, and it will be a problem in terms of what
13 helicopters can do, it becomes a very expensive and
14 interesting proposition.
15 With regard to Loxahatchee, there is a proposal to
16 establish additional stations in excess of the
17 historical sites. We are willing to offer Dr. Jones'
18 split samples that already exist, that they already have
19 the data from his tests, but if for some reason they
20 don't believe them we will give them split samples from
21 the existing samples which Dr. Jones has available at
22 the testing center at FIU, which is the official testing
23 center for the State of Florida.
24 That will alleviate many flights, the need to do a
25 lot of the initial data testing. They can have
36
1 the results before they go in and verify the fact that
2 Dr. Jones' tests are correct.
3 There's no plausible or well reasoned scientific
4 basis to have to redo the tests.
5 The reason we feel replicates are not as important
6 as split samples...
7 HEARING OFFICER: We're getting a lot of different
8 issues mixed up all at one time, and I'm trying to get
9 them...
10 MR. WATTS-FITZGERALD: They don't easily resolve.
11 HEARING OFFICER: Okay. Maybe I'm trying to force
12 them to do that and see if we can do it.
13 But it seems to me that the initial issue that
14 we have to address is the question of access and
15 how often it has to be done, and from what I
16 understand you're saying there's a problem, number one,
17 with access in terms of the amount of times that access
18 should be granted, as well as locations in addition,
19 which I had not picked up earlier was going to be a
20 problem.
21 So why don't we start out with the number of times
22 we have to deal with it and see if we can reach some
23 consensus as to what's necessary.
24 Again I go back to as I understand it there is no
25 problem with respect to the park, because it will
37
1 only be the initial testing period up front, and we
2 should be able to resolve that.
3 Then we get to the question of how often there has
4 to be monthly access to the refuge, and from what you
5 were just saying you were saying there's some
6 locations where there's only going to be an initial
7 access and no need for continuing access?
8 MR. WATTS-FITZGERALD: I'm not sure I follow, but
9 under their proposal that's correct.
10 Mr. Hearing Officer, perhaps I can expedite this.
11 Four days is an outside limit for a six-month period to
12 closure of discovery to the United States access. We
13 will not quibble over that. But we expect a good faith
14 effort, and our observer will be watching. People
15 who know what they're doing and have Everglades
16 experience can do it faster, and we expect a
17 minimization of the impact, adverse impact, on an
18 aquatic resource.
19 HEARING OFFICER: You are saying you're not going
20 to have a problem with agreeing up front to four times a
21 month, but you expect if it gets going it's not going to
22 need that much, and if your person feels it's not
23 working out, file a motion, and we'll take it up and
24 resolve it.
25 MS. KAVANAUGH: That's acceptable. We have
38
1 already indicated once we get out there we may find we
2 don't need to come that often. We don't know. Our
3 people's guess is three to four days. That's
4 acceptable.
5 MR. WATTS-FITZGERALD: And we also are offering to
6 expedite that process and alleviate the need for a lot
7 of the initial site testing which they propose to do in
8 the historical transects Dr. Jones was involved in, Ron
9 Jones, by providing through split samples from those
10 tests.
11 It means you literally cleave it. The way the
12 scientists would optimally do that is they go out with a
13 pipe, drive it in the ground, and there's the core.
14 That core is not specially sealed. It's put in a cooler
15 and carried back to the lab.
16 Some time, three days, five days, or a week later,
17 it's forced out onto a piece of polypropylene, and you
18 cut it down the length of it.
19 The other way to do it if everybody was
20 cooperative, and we're doing a lab check, you simply
21 take a cross-section, grind it up in a household
22 blender, that's a fancy one, but that's what it is, and
23 then you take half of it and send it to one lab and say
24 this is the split sample.
25 Dr. Jones has pre-existing sealed samples from
39
1 earlier samples, the results of those split samples.
2 We'll give them to them.
3 The advantage to split samples is if both labs are
4 equally capable and competent you have no difference of
5 evidentiary value later. Replicates can result in a lot
6 of quibbling, even if they're taken a few feet apart,
7 because you drive two separate cores, and everybody goes
8 away with their own.
9 We're looking primarily for phosphorous and
10 phosphorus related processes. If you can get biological
11 material, a decomposed bug in there, or if you happen to
12 pick the one spot one of the few remaining bears in the
13 Everglades relieves himself, you're going to get a spike
14 of phosphorous.
15 That could be used to try and demonstrate some
16 discrepancy, and these lead to issues or evidence at a
17 hearing that really don't need to exist.
18 If you do splits it's not a problem.
19 The League objected to splits on this in the water,
20 and we said in the water we know how to split. You pour
21 it into a separate jug. That's agreed.
22 You can do splits on the soil. The reason we are
23 concerned about this is if we don't we'll be driving a
24 lot of cores, because they have three replicates of
25 their own for every one, and we are going to need them
40
1 or any other parties and will be leaving the Loxahatchee
2 and the Everglades with potholes
3 everywhere.
4 That's probably an exaggeration, but it also
5 increases flights, the expense, the time, and that's
6 where the ripple effect comes in that is not easily
7 isolated.
8 MR. OERTEL: You are being asked now to prejudge
9 whose method is the best method, and you're being
10 asked to really assess the way the evidence comes
11 here at hearing. It's not appropriate to make that
12 decision.
13 MR. WATTS-FITZGERALD: Well, I don't know it
14 necessarily is going to be necessary to, it may be as
15 part of the hearing, but we're talking about a factual
16 dispute from two lawyers who obviously believe their
17 experts are correct, but I don't have the experts to be
18 able to evaluate that.
19 So I guess the split issue we can get to in a
20 minute. I just want to make sure we get the access,
21 timing, and location resolved. It sounds like we've got
22 the timing resolved.
23 In terms of location do I understand you to say
24 there is no dispute now as to the location for where the
25 cores will be taken? Are we...
41
1 MS. KAVANAUGH: We have agreed to take core
2 samples, 14, in the refuge at the historical stations
3 that were established when the park, when they did their
4 own research.
5 And we certainly appreciate the offer of
6 Dr. Jones' data, but a crucial issue is whether or not
7 in fact his core samples were taken exactly at the right
8 place, obviously.
9 We have also asked to establish eight additional
10 stations, because we believe that that additional
11 sampling is done, but this core sampling will only occur
12 once, and he's correct there will be replicates, but
13 there were replicates also in the federal
14 researchers. We're not talking about huge potholes. We
15 have substantially reduced our original request.
16 But we feel we ought to be able, our experts tell
17 us where they think they should take the sample, and we
18 should have that ability so long as it's not where, for
19 example, we're taking a core sample in the middle of a
20 nest of an endangered species or something that
21 will damage something. We would not want to do that
22 anyway.
23 HEARING OFFICER: Let's get to the replicates in a
24 second. I just want to make sure we...
25 MS. KAVANAUGH: One other thing. The refuge is
42
1 state owned lands. While the Fish and Wildlife Service
2 operates it under a lease, those are owned by the State
3 of Florida.
4 So it doesn't, hasn't really said anything, but
5 they are landward, and they are state owned lands. I'm
6 sorry. Licensed.
7 MR. WATTS-FITZGERALD: Loxahatchee is more
8 complicated. A portion is federal, and there is a
9 wildlife refuge, because it's home to 23 endangered
10 species or something of that order, and it's identified
11 in many places.
12 HEARING OFFICER: I don't know if it's pertinent to
13 the issue I'm seeing that has to be resolved, and that
14 is the location. Is there an agreement or not an
15 agreement as to the location for where the testing will
16 be done?
17 MS. KAVANAUGH: For the 14 stations there's an
18 agreement. The eight additional stations haven't been
19 established, because it has not been overflown.
20 HEARING OFFICER: But you are in agreement there
21 can be eight additional sites, based on your agreement,
22 or is there no agreement on that?
23 MR. WATTS-FITZGERALD: There's no agreement on
24 that. You have it down to six.
25 MS. KAVANAUGH: I think you're right.
43
1 MR. WATTS-FITZGERALD: Unless we're looking at
2 something different.
3 MS. KAVANAUGH: It's six.
4 HEARING OFFICER: But there is no disagreement that
5 there can be six additional sites, but they just haven't
6 been pinpointed yet?
7 MR. WATTS-FITZGERALD: That's the disagreement, the
8 number of sites. They are already excessive, given the
9 nature of the property and the availability of
10 historical data with people with no contemplation of
11 litigation and recent work which has been provided to
12 the other parties on a number of projects, and it's
13 public information.
14 HEARING OFFICER: Well, I can understand the
15 petitioners' point, that they should be entitled to
16 their own samples, and I don't think they have to trust
17 somebody else's work in order to do the samples that
18 were done correctly or whatever.
19 MR. WATTS-FITZGERALD: I agree, but you're talking
20 about 578 sets of samples out there on the initial run,
21 not counting ongoing samples by 58 collection devices.
22 What we anticipate will happen, and they can say it
23 won't, they're going to validate the pre-existing data,
24 because it was not developed for litigation, unless
25 there's something very aberrant which will show
44
1 up immediately on the historical transect.
2 If the historical transects, and they want to test
3 there, too, 20 odd, whatever it is, 14, if they come up
4 with widely variable results from what all the
5 historical data has been on the same type of tests, then
6 I think we have an issue to come back and say more
7 testing might be appropriate from their perspective. It
8 is not going to happen.
9 Because we believe it is not going to happen, we
10 think 578 is an excessive number, given the nature of
11 the resources that ought to be protected and the policy
12 issues which you must balance under case law and the
13 competing interests of the parties.
14 HEARING OFFICER: I'm having a hard time
15 understanding exactly where the dispute is here. We are
16 agreed upon the need to do some new testing that the
17 petitioners should have the ability to take new samples,
18 Is that right? Do you agree they have the ability to do
19 it? You're saying they should only be able to do it at
20 the historical sites with no other sites at all, is that
21 right? Because as I understand the proposal the
22 petitioners want to go into the refuge, test at all the
23 historical sites, and in addition want to test at six
24 new sites based upon the aerial reconnaissance that is
25 done.
45
1 MR. WATTS-FITZGERALD: They want to establish six
2 additional more or less permanent sampling sites for the
3 duration.
4 HEARING OFFICER: Every time they go in on their
5 monthly tests they can go to the same site and redo it,
6 is that right?
7 MR. WATTS-FITZGERALD: Forty-two additional
8 landings, 120 additional sets of samples, sets, not
9 samples, replicates and everything.
10 HEARING OFFICER: So the initial dispute, you don't
11 have any dispute then with the historical sites, that
12 they should be able to do that?
13 MR. WATTS-FITZGERALD: (Nodding head.)
14 HEARING OFFICER: So those 14 sites, there is no
15 dispute at al in terms of location or in terms of
16 monthly access, is that right?
17 MS. KAVANAUGH: That's my understanding.
18 HEARING OFFICER: Everybody is in agreement they
19 should have a right to go in there on a monthly basis
20 four days if necessary, and hopefully it won't be needed
21 for that long, correct?
22 MR. WATTS-FITZGERALD: Some of those stations are
23 one-time stops, but we have no problem with those 14,
24 and we'll help them find them to the extent we can, but
25 we are convinced that when they have analyzed that data
46
1 they will realize the historic available data is
2 correct.
3 HEARING OFFICER: You're saying they need six
4 additional sites in addition to the 14?
5 MS. KAVANAUGH: Yes, sir, we do dispute the
6 representative nature of some of the sites selected by
7 the federal government, and our consultants tell us they
8 would like to take, establish six other stations.
9 We have agreed to have a federal representative
10 assist us in selection to ensure we are not getting into
11 an area that will disturb the resource or the wildlife.
12 We have represented to them that if they object to
13 a specific site and can give us a good reason why we
14 won't do anything until we can come back before you on a
15 dispute. We have made that offer to them.
16 But we want to conduct our testing, I mean, I
17 appreciate Mr. Fitzgerald's confidence in Dr. Jones'
18 work and his consultants, but we want to conduct our own
19 testing and are willing and will make every effort we
20 can to mitigate any disturbance.
21 HEARING OFFICER: I can understand you want to do
22 your own testing, but if you are going to do your own
23 independent testing do you need to completely replicate
24 at all 14 sites? I mean...
25 MS. KAVANAUGH: That's an issue we could discuss.
47
1 would be happy to talk to them if that's a concern.
2 HEARING OFFICER: Well, what I'm saying is if it's
3 a concern about the repeated access maybe you can
4 eliminate some of the historical sites and go with some
5 new ones, maybe six new ones and six old ones.
6 MR. WATTS-FITZGERALD: Mr. Hearing Officer, we may
7 have misled you somewhat collectively by not making
8 clear there are 18 sites that are one-time data
9 collections they want to do right up front in
10 Loxahatchee, so 18 sites and collect water and soil and
11 look at everything, just look at the vegetation. That's
12 18 sites, one time.
13 Then there are the 14 historical transect sites
14 that some of them they want to visit on a monthly basis,
15 they ant to establish collection devices and 58
16 different pieces of equipment, and then they want to add
17 another six brand new ones along with the 14 potentially
18 permanent sites, monthly visits, equipment on scene, so
19 we're actually talking about 38 sites.
20 We have no problem with the 18, one time. They
21 will pick the sites and get a full, representative
22 sample of various site selection possibilities when they
23 do the surveillance and tell us where it's going. So
24 long as it's not in the middle of an endangered species
25 nest we have no problem, and we have no problem
48
1 with the 14 sites, but six more is getting a little
2 ridiculous.
3 HEARING OFFICER: What if they don't go to all 14
4 historical sites and pick six new ones? Do you have a
5 problem with that?
6 What I'm seeking to do is to limit the times they
7 have to go in, and so if it's eight historical sites and
8 six new ones that gives then a representative
9 opportunity to test Dr. Jones' results as well as the
10 independent.
11 MS. KAVANAUGH: If it could be done it would give
12 us significant information to rebut Dr. Jones' work. We
13 want to challenge the research. We don't agree with the
14 conclusions. I think that's something we would
15 consider.
16 But at this point we want to test at the exact
17 areas he did as well as examine the data, because we
18 don't agree with the conclusions.
19 MR. WATTS-FITZGERALD: I'll give them the split
20 samples from the sites. I'll give them to them.
21 MS. KAVANAUGH: But we don't want to just look...
22 HEARING OFFICER: I understand you should have an
23 opportunity to independently verify the tests that were
24 done, but the question that rises in my mind is does
25 that mean you have to monthly go in every one of
49
1 the 14 sites? And it just seems to be a little
2 excessive in terms of having the opportunity to verify
3 his study.
4 Maybe one-time access to the historical sites and
5 then monthly access to the new sites in a view of the
6 historical sites would give you the information.
7 MS. KAVANAUGH: I would represent we will look at
8 it, but we haven't been in there, and so we don't know.
9 That's why we're saying monthly access might not be as
10 much as it would be.
11 I certainly would represent that if our consultants
12 tell us they can get the data to render their opinions I
13 don't see any problem. I'll certainly ask.
14 MR. KOBELINSKI: Mr. Hearing Officer, if I may, our
15 understanding is that's exactly what Dr. Jones did. To
16 replicate his study, he did go in there and check as
17 many times as he did, so to replicate his study
18 you would have to replicate what his testing methods
19 were.
20 MS. KAVANAUGH: What I'm saying, we're talking
21 about water sampling, basically going in and getting the
22 samples, because the soil cores are one time.
23 So basically I'm assuming they are concerned with
24 the actual six to be visited on a monthly basis and
25 trying to reduce those.
50
1 The refuge is very large, and it's not like the
2 stations are all clustered together.
3 The problem is to draw water quality analyses,
4 that's why we need the period of time, because you
5 have to have representative samples over climactic
6 changes that occur, and I can't say to you because we
7 have been told we have to do monthly sampling, I can't
8 say to you I can mix and match new stations and historic
9 stations.
10 We want to rebut Dr. Jones' work. We also question
11 to some degree his methodology.
12 Mr. Hearing Officer, the intrusion is still going
13 to be minimal, compared to the typical research that the
14 refuge people have performed and Dr. Jones has
15 performed. This is not an outrageous request, and
16 we are not going to go in and harass endangered
17 species or anything. We have no intention of doing
18 that.
19 HEARING OFFICER: It's hard for me to evaluate the
20 necessity without having experts here, but it seems to
21 me we need to get the ball rolling, that there should be
22 an opportunity to verify at least on a one-time basis
23 the historical sites, and in addition to have some new
24 sites there.
25 Now whether there has to be monthly access at all
51
1 of those sites is another matter. I think maybe I need
2 to listen to some expect witnesses testify and give me
3 their explanation as to why.
4 So why don't we get started with that process, and
5 then at the next hearing in September you can come back
6 and bring your experts and tell me why you need to have
7 monthly access to all 20 of those sites, and we'll take
8 it from there.
9 MS. KAVANAUGH: And I'm assuming they will also
10 present information as to why it would be helpful.
11 MS. KAVANAUGH: Exactly. At that time we will have
12 an idea what the access looks like, and maybe how
13 often...
14 MS. KAVANAUGH: That's true.
15 HEARING OFFICER: ...and how long the duration has
16 to be.
17 MR. WATTS-FITZGERALD: Do I understand you would
18 enter some sort of order permitting the initial
19 surveillance flights for site selection, the one-time
20 visit and testing at the 18 sites that they lay out in
21 one and two related to Loxahatchee, the one time on the
22 historical transects, which may be as many as 14, but
23 not the establishment of the additional sites until we
24 have resolved that issue?
25 HEARING OFFICER: No, I think they ought to be able
52
1 to establish new sites, and the question is whether
2 there would be monthly access to all 14 historical and
3 the six new, and that's what we will take up in
4 September.
5 They'll bring their experts to explain why they
6 should do it, and you bring in somebody to tell me why
7 not, and I'll resolve that based on my evaluation of
8 their testimony.
9 Okay. I guess the remaining issue is the split
10 versus the replicate, is that right? Okay. Well,
11 before we get into that it raises an issue that I know
12 has been touched on in the motions to compel when I
13 mentioned to you I will be entering an order
14 establishing it, I have some question as to the
15 jurisdiction I have to order access to the park.
16 I don't know that it's within my authority to enter
17 an order saying that the U. S. has to grant access in
18 that regard.
19 I am expressing my opinions as to what I think is a
20 reasonable solution to it. I think within the
21 scope of this proceeding my authority may be to limit
22 testimony or limit participation if they don't present
23 or grant access that I feel is reasonable, but I don't
24 know that I have the authority to order access to the
25 park.
53
1 MR. WATTS-FITZGERALD: Mr. Hearing Officer, I have
2 enclosed with my recent reply in there Judge Hoeveler's
3 order. It seems to us the best way to handle this is to
4 avoid the problem entirely.
5 HEARING OFFICER: I agree with that.
6 MR. WATTS-FITZGERALD: Judge Hoeveler clearly left
7 the door open if you were boxed in on that issue, the
8 parties have a farm interest in the federal suit to go
9 back to the federal court in Miami and say, "You enter
10 the order for us, because the Hearing Officer thinks we
11 ought to be allowed in," and presumably you would issue
12 an advisory opinion, I guess, and Judge Hoeveler would
13 enter whatever necessary federal order to show the
14 federal government would permit entry.
15 What we have proposed, which has not been found
16 entirely acceptable to either side, is to the extent you
17 render a decision in this area that we don't file a show
18 stop or whatever, and I can't see that happen, we will
19 cause the two resource managers, and they are in
20 agreement on this, to issue special use permits under
21 the procedures through the original objections response
22 documents as Respondent's A and B. Those are the
23 typical ones, and those special use permits mirror
24 whatever entry you have ordered, and in that fashion
25 basically everybody can be happy.
54
1 We don't need to waste the time and go to the
2 effort or confront the issue of what is the nature of
3 your authority to order it, short of saying invoking
4 sanctions against the United States for not allowing it.
5 We will allow it under this mechanism through your
6 order, and it will not delay the process.
7 We have always taken the view the special
8 management regimes operate in the absence of this order,
9 so should a party go in there or anybody go in there in
10 either of these and do something that is contrary to the
11 existing regulatory regime they would be subject to
12 normal federal procedures and regulations.
13 A special use permit obviates that, because we do
14 not anticipate any of the petitioners or field people
15 will do something outrageous. They will abide by your
16 order as well.
17 We essentially avoid that problem.
18 HEARING OFFICER: Good.
19
19 MS. KAVANAUGH: Mr. Hearing Office, if you remember
20 what the United States is proposing, they are proposing
21 a different jurisdiction on questions of discovery. We
22 are not applying for research. This is a discovery
23 vehicle.
24 Were we still in a federal lawsuit it would have
25 been under an order, and in fact that was the position
55
11 they took.
22 Our concern is that, I mean, if they are, if there
33 is something they do not like, and recognizing your
44 power to impose sanctions, they will exercise their own
55 administrative regulatory powers and basically veto the
66 discovery order.
77 We will then be faced with a position of going back
88 to Judge Hoeveler under the federal APA and that whole
99 process which is involved when you have a federal
10 permit, as opposed to a discovery vehicle.
11 Judge Hoeveler's order moved everything here. He
12 said you were empowered to grant discovery except where
13 there was a jurisdictional question, but at this time if
14 they are agreeing to it I don't understand why you would
15 even want to inject the federal administrative
16 procedures and permitting.
17 HEARING OFFICER: Well, I agree. I think we're
18 talking about some points of administrative law here in
19 terms of discovery and how it interplays with the
20 federal, and I hope we don't have to get into that. It
21 seems like we may be able to avoid it.
22 So if we can, I'm going to express my opinions as
23 to what I think a reasonable decision will be as to when
24 discovery can start, and hopefully we can proceed and
25 resolve all that within that framework. If we
56
11 can't then we may have to deal with that later on.
22 It sounds to me like this issue right now we'll
33 reach at least a preliminary consensus and take it up
44 again in September and see where we are then.
55 But I understand there are a lot of issues out
66 there, and to be honest with you I haven't done the
77 research to resolve in my own mind what the scope and
88 nature of my authority is and how it interrelates with
99 the federal court action and all. I'm sure Mr. Smith
10 could advise me.
11 MR. SMITH: I'd be glad to, Judge. I think you
12 ought to go ahead and do your duty, and if these people
13 wish out of your hearing, off the record of this
14 proceeding, to go through a licensing proceeding to
15 satisfy them, they should have at it, but it should not
16 be brought into this proceeding until they want to bring
17 it in. It's just further evidence of the coercive
18 nature of their attempting to interject...
19 HEARING OFFICER: I think they are attempting to go
20 forward within the scope of the resolution that I'm
21 suggesting, and at this point if my resolutions don't
22 sit with them then we may have to deal with it. I don't
23 think we have to deal with it now.
24 MR. SMITH: Absolutely.
25 HEARING OFFICER: All right. So that gets us to
57
11 I guess the split versus replicate issue. Is that the
22 only remaining issue that we have in terms of the
33 discovery?
44 MS. KAVANAUGH: I think so. As far as I know it
55 is.
66 HEARING OFFICER: All right. And I guess I can
77 understand the concern that's been voiced by the U. S.
88 Government that they want to avoid the potential
99 arguments that, "Well, your sample was taken from a
10 different spot than our sample, and therefore we want to
11 go with replicates." That makes a lot of sense in terms
12 of making sure everybody's dealing with apples and
13 apples instead of apples and and oranges. Why can't
14 that be done?
15 MS. KAVANAUGH: Could I suggest this? It came up
16 kind of suddenly when it will basically kind of call the
17 sample into question if it's split. Could we possibly
18 get back with the consultant and see if there's any way
19 he can describe this split sample? We don't have any
20 objection so long as it doesn't change its nature and
21 see if there's any way we can do it, in which case we
22 would agree to split.
23 HEARING OFFICER: It may be the experts the U. S.
24 Government has have a methodology or a procedure that
25 may satisfy your consultants.
58
11 MS. KAVANAUGH: That's it, and we will make that
22 known immediately if we can get that straightened out.
33 HEARING OFFICER: All right, so why don't you see
44 if you can, maybe your expert can provide the tools or
55 whatever that he uses that enables him to do it to their
66 expert and see if that will resolve it?
77 MR. WATTS-FITZGERALD: We generally use a cane
88 cutting knife.
99 MS. KAVANAUGH: That might explain it. Just
10 teasing.
11 MR. WATTS-FITZGERALD: A carefully sanitized and
12 sterilized one.
13 HEARING OFFICER: Okay. What other issues do we
14 need to get resolved? Is that everything?
15 MS. PONZOLI: You're only talking about their
16 access.
17 MR. WATTS-FITZGERALD: There is an issue, talk
18 about getting down into the weeds, vegetation. Our
19 proposals speak in terms of doing a vegetative
20 inspection and mentions nothing about cutting.
21 We seek clarification because of the vague language
22 and were not clear on the response. I think we kind of
23 crossed in the night on that matter.
24 They came back and said their consultant said
25 they were not vague on that, and there was a letter
59
11 saying such vegetation as we cut, if any, it's not a
22 lot. It does not say if they are testing or not.
33 We are not challenging or dictating what tests have
44 to be performed or how they perform them. We recognize
55 the case law. In fact, they cited it to us, and I
66 recited it in response to you.
77 A party in discovery can't dictate the tests the
88 others will take or can conduct.
99 All we are saying is we are entitled to know as
10 they are entitled to know that when you make entry under
11 the rule what are you going to take? You're taking a
12 picture? Fine. Take a picture. If you want to take
13 cuttings, take cuttings, but we're entitled to know
14 that, because the scope is relevant to the
15 reasonableness and the balancing test.
16 HEARING OFFICER: Okay. Well, in terms of the
17 vegetative issues I don't think we're facing the same
18 sort of ongoing type of testing that needs to be done
19 with respect to the water samples, and as I understood
20 their response they basically said if the representative
21 of the U. S. Government is there and doesn't agree with
22 the sample that is being done that they'll halt it
23 immediately and that we'll bring it up and take it up at
24 a hearing.
25 MS. KAVANAUGH: We don't know, frankly, because we
60
11 don't know what we're going to take. We're not planning
22 to go in if the federal observer says no.
33 HEARING OFFICER: Isn't that acceptable? I mean,
44 it's not like they have to do it at that particular
55 time. They can go in the next time they go in.
66 MS. KAVANAUGH: If we can resolve it, we'll do it
77 the next time.
88 HEARING OFFICER: So it will put the power to your
99 guy if he thinks the sampling that's being done will be
10 excessive that he can halt it right there.
11 MR. WATTS-FITZGERALD: Because of the number of
12 trips we really didn't plan to send the Superintendent
13 of Everglades National or the Resource Manager of
14 Loxahatchee along on these.
15 HEARING OFFICER: Not every one, but maybe the
16 time...
17 MR. WATTS-FITZGERALD: And those are people that
18 have the authority to make that call. We're just
19 asking. We want to know in advance.
20 MS. KAVANAUGH: We're not going to know until we
21 get there.
22 HEARING OFFICER: On any opportunity or any
23 entry when they're going to be doing vegetative
24 sampling if you can give them enough notice you can
25 make sure someone goes along who has authority or has
61
11 the ability to halt this or come back and revisit the
22 issue.
33 MR. WATTS-FITZGERALD: If we can get advance notice
44 we can do that.
55 MS. KAVANAUGH: If I may say, once we go in on the
66 first trip we will see what vegetation is there, and
77 perhaps at that point our consultants can say, "We will
88 need leaf samples here, we will need them here," and we
99 can tell you, and we would agree to that.
10 I don't think we intend, if you will, in other
11 words since we will be going back on a monthly basis we
12 could do it the second time after we talk.
13 HEARING OFFICER: Why don't we do this. No
14 vegetative sampling without seven days prior notice to
15 the U. S. and then...
16 MS. KAVANAUGH: An appropriate observer?
17 HEARING OFFICER: And the appropriate observer can
18 halt it if they think it's excessive, and we'll take it
19 up at the next hearing.
20 MR. WATTS-FITZGERALD: Yes, sir.
21 HEARING OFFICER: Is someone writing all this down
22 for a final order?
23 MR. REID: She is.
24 HEARING OFFICER: Is somebody going to give me a
25 transcript so I can put it all down? Will there be a
62
11 transcript ordered?
22 MS. PONZOLI: Oh, yes.
33 MS. KAVANAUGH: Mr. Hearing Officer, Mr. Kobelinski
44 just clarified we are only going in once, and we're
55 going to go into the first 18 sites, and we won't know
66 what we want to take until we get there, so I just want
77 assurances and an understanding that if, since
88 we won't know what we need to take until we get there
99 that if we can't take it on the first trip we won't be
10 allowed to go back and conduct further sampling.
11 HEARING OFFICER: Well, I think that's what
12 basically I understood the process to be, if the U. S.
13 observer halts it and no vegetative sampling is done and
14 we come back here and you bring them in and I'll
15 listen to the testimony and we'll determine, you know,
16 I'll make my determination as to whether I think it's
17 reasonable or not, and assuming that you establish the
18 need to do the vegetative sampling as proposed then it
19 will be my decision he should be able to go back in and
20 do it, and we'll get back into the procedural issues and
21 deal with that as we get there, but hopefully we will
22 not need that.
23 Okay. Is that it with respect to the petitioners?
24 Are there any other issues that need to be resolved?
25 MR. WATTS-FITZGERALD: There was a request as part
63
11 of the original response, in the Everglades National
22 Park, to do low level flying over the research sites,
33 the two centers that do not appear anywhere in the SWIM
44 plan or are quite remote from any physical sampling
55 site, and there is a special consideration in wilderness
66 areas.
77 MS. KAVANAUGH: We withdraw that, Mr. Hearing
88 Officer.
99 MR. WATTS-FITZGERALD: Never mind.
10 MS. KAVANAUGH: We'll pass.
11 MR. WATTS-FITZGERALD: That's gone. Whoa.
12 Closure.
13 HEARING OFFICER: Any other issues then on the
14 petitioners' request for entry? We have resolved all
15 outstanding disputes on those for the time being?
16 Right?
17 MR. WATTS-FITZGERALD: Perhaps preliminarily.
18 MS. PONZOLI: Round two. I don't think this is
19 quite as complicated. We seek a much more modest entry
20 to take a total I believe of 13 days. I guess the
21 problem is it doesn't seem to relieve the anxiety level
22 of the people on the other side of the room. I'd like
23 to go through just briefly things we are seeking, what
24 we're seeking, and have the numbers.
25 I do think we are down to two issues. While you
64
11 were out I got a "Yes, you can have entry," a "Yes, you
22 can have entry," "Maybe you can have entry," and I think
33 it slipped to yes, maybe, maybe, but I do think we are
44 down to two issues.
55 HEARING OFFICER: Before we get into it let me back
66 up for a second. I assume by the silence the issues in
77 terms of what can be done with the information that has
88 been resolved as a result of that?
99 MS. KAVANAUGH: No, sir, that is one of the two
10
10 issues.
11
11 MS. PONZOLI: That is one of the two issues, and I
12
12 don't know if you think you have the power to resolve
13
13 it. I guess I leave that to you.
14
14 I do not have the authority to waive the
15
15 enforcement powers. I frankly can understand their
16
16 anxiety about what would be done with the data, and
17
17 since we have a spirit of openness, made an offer to
18
18 share our raw data, that now is the issue if it's shared
19
19 with the world, and I guess that raises our anxiety on
20
20 their part.
21
21 HEARING OFFICER: Okay. This only, maybe I don't
22
22 understand or didn't understand earlier, but that all
23
23 relates to your request for entry onto the petitioner's
24
24 property, doesn't go the other way?
25
25 MS. PONZOLI: No, sir, it doesn't go the other way.
65
11 But let me, I would like to share with you by way of
22 illustration a couple of maps or images, just so you're
33 familiar with what we're talking about.
44 They have seen these before, you know, and I'm not
55 asking them to waive objections. I think they are
66 relatively fair representations of south Florida. One
77 is a satellite image, and one is a stylized map.
88 Where you see the satellite image, Mr. Hearing
99 Officer, | 