1 DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA
2
SUGAR CANE GROWERS COOPERATIVE OF FLORIDA, )
3 ROTH FARMS, INC., and WEDGWORTH FARMS, INC., )
-and- )
4 FLORIDA SUGAR CANE LEAGUE, INC., UNITED )
STATES SUGAR CORPORATION, and NEW HOPE )
5 SOUTH, INC., )
-and- )
6 FLORIDA FRUIT AND VEGETABLE ASSOCIATION, )
LEWIS POPE FARMS, W. E. SCHLECHTER & SONS, )
7 INC., and HUNDLEY FARMS, INC., )
)
8 Petitioners, )
)
9 vs. )DOAH CASE NOS.
)92-3038
10 SOUTH FLORIDA WATER MANAGEMENT DISTRICT, )92-3039
)93-3040
11 Respondent, )(Consolidated)
)
12 and )
)
13 MICCOSUKEE TRIBE OF INDIANS, THE UNITED )
STATES OF AMERICA, FLORIDA DEPARTMENT OF )
14 ENVIRONMENTAL REGULATION, and FLORIDA )
WILDLIFE ASSOCIATION, )
15 )
Intervenors. )
16 ____________________________________________ )
17 HEARING BEFORE: HONORABLE J. STEPHEN MENTON
HEARING OFFICER
18
DATE: TUESDAY, SEPTEMBER 29, 1992
19 (1:07 P.M. - 6:05 P.M.)
20 LOCATION: HEARING ROOM 5, DESOTO BUILDING
1230 APALACHEE PARKWAY
21 TALLAHASSEE, FLORIDA
22 REPORTED BY: SUE HABERSHAW JOHNSON
CERTIFIED COURT REPORTER
23 REGISTERED PROFESSIONAL REPORTER
NOTARY PUBLIC
24
25
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
-and-
5 ROBERT DE MEO, ESQUIRE
Hopping, Boyd, Green & Sams
6 123 South Calhoun Street
P. O. Box 6526
7 Tallahassee, Florida 32314
(904-222-7500)
8
Representing Petitioners, Florida Sugar Cane
9 League, Inc., United States Sugar Corporation,
and New Hope South, Inc.:
10
JUDITH S. KAVANAUGH, ESQUIRE
11 -and-
RICK J. BURGESS, ESQUIRE
12 Peeples, Earl & Blank, P.A.
One Biscayne Tower, Suite 3636
13 Two South Biscayne Boulevard
Miami, Florida 33131
14 (305-358-3000)
-and-
15 WILLIAM L. HYDE, ESQUIRE
Peeples, Earl & Blank, P.A.
16 Suite 350
215 South Monroe Street
17 Tallahassee, Florida 32301
(904-681-1900)
18
Representing Petitioners, Florida Fruit and
19 Vegetable Association, Lewis Pope Farms,
W. E. Schlechter & Sons, Inc., and
20 Hundley Farms, Inc.:
21 KENNETH F. HOFFMAN, ESQUIRE
Oertel, Hoffman, Fernandez & Cole, P.A. 2 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, Schnobrich & Kafman, Ltd.
400 International Place
4 100 Southeast Second Street
Miami, Florida 33131
5 (305-539-7222)
6 Representing the Intervenor, the United States
of America:
7
SUZAN HILL PONZOLI, ESQUIRE
8 -and-
THOMAS A. WATTS-FITZGERALD
9 Assistant United States Attorneys
Southern District of Florida
10 Suite 627
155 South Miami Avenue
11 Miami, Florida 33130-1693
(305-536-4425)
12 Representing Intervenor, Florida Department of
13 Environmental Regulation:
14 LEE M. KILLINGER, ESQUIRE
Assistant General Counsel
15 Department of Environmental Regulation
Twin Towers Office Building
16 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
17 (904-488-9730)
18 Representing Intervenor, Florida Wildlife
Federation:
19
STEVEN GRIGAS, ESQUIRE
20 111 South Martin Luther King, Jr., Blvd.
P. O. Box 1329
21 Tallahassee, Florida 32302
904-681-0031)
22
23
24
25
4
1 Representing United States Department of Justice:
2 KEITH E. SAXE, ESQUIRE
United States Department of Justice
3 Environmental & Natural Resources Division
General Litigation Section
4 Room 879, 601 Pennsylvania Avenue (20004)
P. O. Box 663
5 Washington, DC 20044
(202-272-4016)
6
* * * * *
7
ALSO PRESENT:
8 JOHN DAVIS
9 RONALD THOMAS LUKE
10 * * * * *
11 INDEX
12 ITEM PAGE
13 HEARING COMMENCED . . . . . . . . . . . . . . . . . . 5
14 WITNESS: RONALD THOMAS LUKE
15 Direct Examination by Mr. Green. . . . . . . . . 75
Cross Examination by Mr. Saxe. . . . . . . . . . 87
16 Cross Examination, con't, by Mr. Nettleton . . . 98
17 HEARING CONCLUDED . . . . . . . . . . . . . . . . . . 204
18 CERTIFICATE OF REPORTER . . . . . . . . . . . . . . . 205
19 * * * * *
20
21
22
23
24
25
5
1 PROCEEDINGS
2 (WHEREUPON, THE HEARING COMMENCED AT 1:07 P.M.)
3 HEARING OFFICER: All right, why don't we start
4 out by giving the roll call of who's here this
5 morning. Petitioner Cooperative?
6 MR. GREEN: Bill Green, Your Honor.
7 HEARING OFFICER: For the League?
8 MS. KAVANAUGH: Judith Kavanaugh, Rick Burgess,
9 and Bill Hyde.
10 HEARING OFFICER: Okay. For the Fruit and
11 Vegetables?
12 MR. HOFFMAN: Ken Hoffman.
13 HEARING OFFICER: All right, and for the South
14 Florida Water Management District?
15 MR. NETTLETON: Paul Nettleton.
16 HEARING OFFICER: And U. S. Government?
17 MS. PONZOLI: Suzan Ponzoli, Keith Saxe, and
18 Tom Watts-Fitzgerald.
19 HEARING OFFICER: All right, and for any of the
20 other intervenors?
21 MR. GRIGAS: Steve Grigas, Florida Wildlife
22 Federation.
23 HEARING OFFICER: Okay.
24 MR. KILLINGER: Lee Killinger, DER
25 HEARING OFFICER: Okay. Anybody else? All right.
6
1 Let's start out with a couple of housekeeping
2 matters.
3 There is a pending motion to intervene, which a
4 response has been filed by the League, I believe.
5 Are there any other issues that need to be raised in
6 connection with the petition for leave to intervene?
7 My inclination is to, I will enter an order
8 granting the petition to intervene along the same lines
9 the other ones have been filed. At this point
10 I think it's still, I haven't found it to be
11 unmanageable at this point, so we'll proceed under
12 the current procedure.
13 Second, my Clerk's Office has asked me to once
14 again mention that when you file something with us
15 please file the original and one copy, because the
16 original goes to the court file to keep that up to date,
17 and the copy goes to me, and if you don't file the
18 original there's often a delay in my getting
19 it, so it will inhibit the process here.
20 So if you can please be sure to file the
21 original and one of any pleadings you file with the
22 Division.
23 As another housekeeping matter, I noticed in
24 several of the motions and responses that have been
25 filed there has been a great deal of citation to
7
1 federal authority. Just for your own information,
2 let me just advise you that we have limited federal
3 research materials available here at the Division.
4 We do have the Supreme Court Reporter, although
5 we tend to get the most recent copies on a fairly
6 delayed basis, so I think we're on up to '91 now.
7 I do not have any of the other Federal Reporters
8 or the rules decisions. Obviously there is access to
9 the law school, but I don't always have an
10 opportunity to go down, and the other thing is a
11 lot of things I'm reading on the road, so if you
12 are going to cite the federal cases it's probably
13 best if you would give me a copy, and hopefully that
14 will limit your citations.
15 I guess the other matter I wanted to bring up
16 at the outset is we had discussed as a result of the
17 August 21st hearing entry of an order summarizing
18 some of the rulings that were made there. I did
19 receive this afternoon a copy of the transcript
20 from that hearing that Mr. Hyde provided me with.
21 I have not obviously had an opportunity to go
22 back through it. I don't know where we stand on that
23 and whether there are any modifications that need to
24 be made.
25 MS. KAVANAUGH: If I may, Mr. Hearing Officer,
8
1 and we apologize, we thought a transcript had been
2 provided to you, and Bill pointed out to me we
were
3 to provide it to you this morning, so I wanted to
4 make sure you had it, there has been a proposed order
5 exchanged. It is strongly disputed. There is very
6 little agreement.
7 Our suggestion would be to submit proposed
8 orders and let you read the transcript and decide.
9 At least that's from my clients.
10 HEARING OFFICER: All right. Ms. Ponzoli?
11 MS. PONZOLI: I would agree it seems to be in
12 dispute. We had a meeting this morning where we
13 did try to go through it, and it did seem that there
14 was a lack of agreement.
15 I think you will find as you go through the
16 transcript it's not an easy thing to discern what
17 the agreements were there, so I sympathize with
18 your task.
19 There was agreement, however, on two of the
20 paragraphs of the federally proposed order, and that
21 was paragraph seven, which is of not very much
22 importance, which said that any dispute over site
23 selection or sampling activities would come back to
24 you.
25 The other one I think from our perspective is
9
1 important, however, and that is on number 10.
2 The United States is entitled to conduct discovery
3 on all issues raised by petitioners' pleadings, subject
4 to the usual restrictions to which any party
5 participating in these hearings might be held, and it
6 was agreeable with the addition by the Cooperative's
7 attorney we add something along this line, "However,
8 this order does not determine the scope of
9 the issues of petitioners' pleadings."
10 HEARING OFFICER: I'm not sure that all
11 registered as you read it. Summarize exactly what
12 you're saying.
13 MS. PONZOLI: Well, that we may litigate
14 whatever they have raised in their pleadings. They
15 are conceding that now, or at least are accepting
16 your ruling.
17 I believe you ruled that. I can cite you to
18 the page where you said, "Yes, what they raise you
19 can litigate."
20 They want it clear that what I think they have
21 raised and what they think they have raised might
22 be in dispute. Is that a fair...
23 MR. GRIGAS: That's fair.
24 MS. KAVANAUGH: Right. We agree that anything
25 we raise is at issue. I don't think we have a
10
1 disagreement on that point.
2 HEARING OFFICER: Okay. Well, why don't we do
3 this. Each of the parties obviously has your own
4 version as to what the result of the August 21st
5 hearing was. Submit your proposals to me, and I'll
6 go back and review the transcript, and I'll do an
7 order, and we'll get it moving along.
8 MS. PONZOLI: If I may, Mr. Menton...
9 HEARING OFFICER: Right.
10 MS. PONZOLI: ...there was another agreement
11 this morning that might, I guess I haven't proposed
12 it to the other side, there is a lot of dispute still
13 over a number of issues in regards to the entry into
14 the Refuge in particular, and what was agreed to at
15 the hearing and what was not agreed to, and what we
16 propose to do rather than separating our perspectives
17 was to put Mr. Fitzgerald and Mr. Burgess together,
18 and they would try and draft a single entry order
19 reflecting the entry into the Refuge and the Park,
20 and then they would just lay out if there were discreet
21 areas that are not part of today's hearing.
22 Today's hearing has I think like two or three
23 defined areas on which you are expected to rule
24 regarding that entry, but as to all these other
25 things going back and forth if they could either
11
1 reach closure or at least offer Paragraph A and
2 Paragraph B, that might be a modification to the
3 proposed order that Ms. Kavanaugh was referring to,
4 and then we would only reflect other issues in our
5 proposed orders.
6 Do you understand the distinction I'm making?
7 HEARING OFFICER: Well, I don't have, you know,
8 your draft, so I'm not sure how it all fits into
9 play.
10 Do you, are you saying you want to give them
11 an opportunity to meet and come up with a separate
12 order addressing the access to the Park and the Refuge
13 and then delete those portions from that proposal
14 you have and a separate proposal regarding the other
15 issues, and then I'll deal with that?
16 MS. PONZOLI: Yes, sir. Most of that hearing on
17 the 21st is to the access to the Park. The greater
18 majority of it goes to that issue.
19 HEARING OFFICER: Right. So you are suggesting
20 that there will be another meeting after this hearing
21 between Mr. Fitzgerald and Mr. Burgess with an
22 attempt to narrow those issues a little bit further?
23 Is that what you're saying?
24 MS. PONZOLI: Right, and I think there was
25 agreement that when the entry into the Park and the
12
1 Refuge occurs that there needs to be a single
2 document reflecting the terms and conditions as
3 ordered by you and/or agreed to by the parties or
4 whatever, a single document that reflects what's
5 going to go on, so we don't have to go back and
6 reconstruct transcripts and orders and hearings.
7 MS. KAVANAUGH: We're thinking obviously today
8 some of the issues will be addressed and ultimately
9 we hope to have rulings on virtually everything,
10 and perhaps since there is a stipulated single
11 document that everybody can carry around with them
12 when they're out in the field, so we don't get into
13 arguments.
14 We are in agreement with the process, but
15 obviously today's rulings may dictate further
16 refinements of the soil core replication issue and
17 things the scientists can work out. We'd like to
18 stipulate that and have that in one document.
19 HEARING OFFICER: Okay. What are we talking
20 about in time frame in terms of addressing first of
21 all the entry and access issues after a meeting
22 between Mr. Burgess and Mr. Fitzgerald and then the
23 other aspects?
24 MS. PONZOLI: They have requested an
25 overflight over the Refuge, and they have requested
13
1 that that occur prior to this meeting so it could
2 help refine the issues that seem to keep floating
3 back and forth, and we have agreed, "Fine, you can
4 have your overflight on the 6th of October, we'll send
5 an observer with you, and then Mr. Burgess,
6 Mr. Fitzgerald, and a representative scientist from each
7 side will sit down in a single meeting," and
8 maybe with a little luck it will produce a document
9 with no issues left to be resolved or very discreet
10 ones.
11 HEARING OFFICER: Okay. So what are we talking
12 about in a time frame here?
13 MS. KAVANAUGH: Well, we would hope we can
14 begin with the overflight. There is a dispute over
15 whether that should be included in the first week of
16 actual testing. We still are hopeful that can be
17 worked out.
18 So I don't think, the next week after October 6th
19 would be when we could schedule a meeting, certainly.
20 Let's, while it's fresh on everyone's minds, fly over
21 and, what, a week after that to propose an order?
22 MR. WATTS-FITZGERALD: I would suspect we
23 would be able to resolve 80 per cent of the issues
24 based on what happens that day, and after that we
25 should be able to crank out a document within two or
14
1 three days tops.
2 MS. KAVANAUGH: October 15th we would propose
3 the date to submit a stipulated order to tell the
4 Hearing Officer we're not going to agree and have
5 a phone conference?
6 MR. WATTS-FITZGERALD: That's reasonable.
7 HEARING OFFICER: Why not do that?
8 MR. WATTS-FITZGERALD: The one issue that sort
9 of precedes that and precedes as well the entry on
10 the 6th for the overflight is one that we had thought
11 was resolved last month, which as a result of the
12 meeting we had this morning apparently is not
13 resolved.
14 One of the attorneys this morning with some
15 justification pointed out all meetings tend to raise
16 more issues than resolve issues, but you will recall,
17 Mr. Menton, we discussed last month the issue of
18 special use permits and the regime under which entry
19 would occur for the federal enclave, and I pointed
20 out the optimal way to handle that was to sidestep
21 the issue entirely.
22 While we are not requiring a formal application
23 for such a document we would cause the respective
24 Resource Managers to issue a special use permit for
25 the activities that were embodied by the agreement
15
1 and the orders.
2 It's clear from the meeting a month ago and
3 the exchange amongst counsel that we are agreeing to
4 an aerial overflight of one day's duration in
5 Loxahatchee for purposes of hopefully relocating
6 historic sites and site selection purposes by the
7 League and its aligned interests.
8 We will issue a special use permit for that.
9 There is a continuing objection, as you know, by the
10 opposing parties to anything that doesn't smack of
11 pure discovery pursuant to the authority of
12 Chapter 22 and the Florida Rules.
13 My understanding of your statements in the
14 transcript, which I read over and over, was that you,
15 too, would like to avoid any unnecessary
16 jurisdictional issues that would really only obstruct
17 focus on the issues in this case.
18 If I'm incorrect in that, we may need to assess
19 that before the 6th. Otherwise there's no issue of
20 holding back the overflight on the 6th.
21 HEARING OFFICER: Okay, I guess I'm not clear
22 as to exactly what the dispute is here. I thought
23 there was a basic understanding that the overflight
24 would take place, and that, I'm not sure that we
25 even got into the specifics. I'd have to go back
16
1 over the transcript, which I obviously haven't done,
2 as to whether or not a special use permit had to be
3 issued or not. Was that discussed?
4 MR. WATTS-FITZGERALD: It probably was not in
5 so many words, but as appears in our pleadings on
6 the subject in response to the initial request for
7 entry in the response it spoke in terms of the
8 2,000-foot limitation and the special regime
9 applicable, Congressionally mandated for that area,
10 and so we will issue one.
11 HEARING OFFICER: I do recall the U. S.
12 Government made the statement that it would take
13 whatever steps were necessary to get the permits
14 issued so that it could take place.
15 MR. WATTS-FITZGERALD: That's right.
16 HEARING OFFICER: I'm not sure why that's an
17 issue that needs to be resolved.
18 If a permit is necessary to conduct the flight
19 and it's going to be issued, then why is that a
20 problem?
21 MS. KAVANAUGH: The only issue, if they wish to
22 issue a permit we have no objection. It's their
23 regulatory action.
24 However, we do not intend to apply for a
25 permit, and we feel this is discovery, and
17
1 apparently they don't expect us to.
2 HEARING OFFICER: I guess the problem is there
3 are certain conditions that have to be followed in
4 terms of the overflight, and they just want to make
5 sure they are incorporated.
6 MS. KAVANAUGH: So far as complying with the
7 FAA regulations, the air space, and all that I think
8 there is agreement. I think it's form over
9 substance here, and our big concern, as I expressed
10 at the last hearing, is to ensure that any disputes
11 which may arise, and it has been a very contentious
12 situation, will be resolved in the framework of
13 these proceedings and discovery.
14 It is hoped that that won't occur, but our
15 concern of the whole special use permit is there is
16 an identified administrative procedure wherein
17 the federal agencies can either enforce, revoke, or
18 modify the special permits, and we just want to
19 make sure that they are not in essence maintaining
20 a veto power over whatever comes out as discovery in
21 the case. That was why we felt discovery issues
22 were discreet and not subject to the special
23 permitting, and we still feel that way.
24 However, I don't think there's any dispute
25 about compliance with the air space regulations and
18
1 notification, and we fully anticipate their
2 observers to be with us, and I think it just boils
3 down to what their position is with regard to any
4 disputes.
5 HEARING OFFICER: Okay. I thought that there
6 was a consensus at the last hearing that these very
7 difficult issues of federal jurisdiction,
8 administrative jurisdiction, and the interplay
9 between them could hopefully be avoided, and that
10 there were certain requests made for access that the
11 federal government was going to make sure that
12 whatever the Department of Interior permits were
13 necessary would be issued, so that would be carried
14 out, and that the discovery could be carried out
15 within the guidelines required by the Department of
16 Interior, and hopefully we're not going to have a
17 problem.
18 MS. KAVANAUGH: It may not be ripe, Mr. Hearing
19 Officer, at this point. I guess what I'm saying is our
20 position is we will not be formally applying.
21 HEARING OFFICER: You're not going to waive
22 the argument that...
23 MS. KAVANAUGH: Yes, sir.
24 HEARING OFFICER: ...that at the first hearing
25 I have the authority to issue an order requiring
19
1 the federal government to grant access under whatever
2 conditions, irrespective of the Department of Interior,
3 but hopefully we won't have to get to that point,
4 because the discovery will take place within those
5 guidelines.
6 MS. KAVANAUGH: Yes, and I would represent to
7 you, Mr. Hearing Officer, we do not intend to formally
8 apply, but if they indicated they will issue the
9 permits it doesn't matter. I mean, they have
10 already represented they will expedite it.
11 One other point on the overflight, Mr. Hearing
12 Officer, this morning we had a discussion. One of the
13 things, the purpose of the overflight is to identify
14 the sites, the sampling sites, used in developing
15 the SWIM plan, and there may be some problem locating
16 the sites, although we are hopeful there won't be,
17 and it may be more than one day.
18 I just want to make sure we all understand
19 they are going to try to help us find the sites, and
20 since they are sites they have been sampling from
21 we assume they will, but there is a question if
22 they cannot locate them right away.
23 So it might take two overflights, but hopefully
24 that will not be the case.
25 MR. WATTS-FITZGERALD: As I mentioned, we will
20
1 seek to assist their field personnel in locating
2 the sites. However, marshes by and large are pretty
3 fungible, and if for any reason the historical sites
4 cannot be precisely located we are not undertaking
5 to locate it at all costs, and I don't understand
6 any reference to those being the sites necessarily
7 at which compliance will be determined, because
8 that is incorrect.
9 MS. KAVANAUGH: Only the 14 sites, Mr. Hearing
10 Officer, that are set out in the hearing and the SWIM
11 document as sampling sites that will be used for
12 determination of the phosphorus limits. We're not
13 talking about all 18 sites.
14 MR. WATTS-FITZGERALD: Or the six.
15 MS. KAVANAUGH: We're speaking only of the 14
16 discreet...
17 MR. WATTS-FITZGERALD: Okay, so long as we are
18 agreed.
19 MS. KAVANAUGH: ...compliance sampling sites.
20 HEARING OFFICER: Okay. Well, I guess her
21 point is she's saying they may not be able to do it
22 in a day.
23 MS. KAVANAUGH: Right.
24 HEARING OFFICER: I thought that's what we
25 started out with, and I guess I don't know if that's
21
1 going to cause a problem or not, but I assume you will
2 work with them?
3 MR. WATTS-FITZGERALD: If we can't find them in
4 a day we're not going to find them, unless there's
5 some problem with the aircraft or the electronic
6 navigation equipment.
7 MS. PONZOLI: We'll work through it. This is
8 not the biggie here today, whether it will take one
9 or two days. We really need to move on.
10 If it takes two days we may have to schedule a
11 second day. It's not that big a problem.
12 HEARING OFFICER: Okay. Well, just to finish
13 this aspect though, October 15th is the day that we
14 can set down for submitting proposals or stipulations
15 regarding the access and entry issues, and now that
16 I have a copy of the transcript of the last hearing
17 I'll take those and enter an order based upon my
18 review of the transcript and my understanding of the
19 agreements that were reached.
20 Now that deals with just one portion of the
21 order that you were working on that you apparently
22 discussed this morning, is that right?
23 MS. PONZOLI: Yes.
24 HEARING OFFICER: Now what do we want to do
25 about the second portion of that? What issues are
22
1 we talking about, other than the access and entry,
2 that are important in your proposal?
3 MS. PONZOLI: In my proposed order it really
4 dealt largely, there were eight paragraphs with
5 regard to entry into the Park and the Refuge, and
6 then there was one that basically said, "We're going
7 to brief and reconvene on our entry into the EAA."
8 I guess we agreed to that one, but it doesn't
9 say anything other than we would come here today and
10 have whatever oral argument you wanted to hear on
11 our entry into the EAA, and then the other discovery
12 rulings were that we could litigate those issues
13 raised by their pleadings.
14 Then the final one is in dispute, what the
15 understanding was on the phone following the
16 two-week expansion. The final one was the effect
17 of the two-week expansion of discovery.
18 The two letters, you didn't receive a copy of
19 the proposed order? I thought it was...
20 HEARING OFFICER: Well, there were a number of
21 documents in my mailbox this morning that I got,
22 and I don't know if that was in there or not.
23 MR. WATTS-FITZGERALD: Mr. Hearing Officer,
24 it was delivered yesterday. Perhaps we could supply
25 you a copy.
23
1 HEARING OFFICER: The facsimile thing?
2 MR. WATTS-FITZGERALD: Yes, it appears to be it.
3 HEARING OFFICER: Okay, this was in my mailbox
4 that I just picked up three minutes before I walked
5 in here, so I have not had an opportunity to review
6 it.
7 MS. PONZOLI: Okay. Is it the United States
8 pleadings, Mr. Hearing Officer, that you are having
9 problems with that don't seem to have an additional
10 copy?
11 HEARING OFFICER: To be honest with you, I'll
12 have to ask my Clerk's Office. I don't know. They
13 just came to me and asked me to make that request
14 again.
15 MS. PONZOLI: We think we're submitting one with
16 a copy and then one for the people who file it for
17 us, but if it is our pleadings I guess I would
18 appreciate knowing, because I don't know that I have
19 anything to remedy, and I haven't remedied. You
20 keep looking in this direction, and I think it must
21 be our pleadings.
22 HEARING OFFICER: I'm just generically making
23 the comment.
24 MR. WATTS-FITZGERALD: If you could glare at the
25 other side for a few moments...
24
1 HEARING OFFICER: My Clerk's Office just
2 mentioned it. I think it is being done now, but
3 there was one of the discovery motions that were filed
4 recently, one of the large ones, that...
5 MR. SAXE: It may very well have been the
6 last Tuesday's filed U. S. opposition in
7 cross-opposition on the Coop's motion for protective
8 order. It's quite possible that went out without
9 two copies, and I will take steps to remedy that in
10 the future if it did.
11 HEARING OFFICER: Okay, and the other thing is
12 that our Clerk's Office, you know, a lot of times if
13 you file something, like you filed this yesterday,
14 what they have to do is they have to docket it, and
15 if there's an extra copy a lot of times they will
16 immediately file it in my box.
17 Most of the time they will wait until they
18 docket it as they go through, because they come in
19 together, and if it doesn't get docketed, you know,
20 this was filed yesterday at 4:40, which meant it
21 got docketed this morning, which meant it didn't
22 get into my box until 11:30 this morning, so I
23 won't have an opportunity to review it, and again
24 sometimes I've got to pick up my mail.
25 MS. PONZOLI: All right. But the issues as I
25
1 understand it on the final paragraph, number 11,
2 in that proposed order is whether we simply pushed
3 everything forward during the two weeks of the
4 expansion or if we in fact push all discovery forward
5 two weeks, and it appears that the respondents
6 thought we were just pushing forward those two weeks
7 with isolated instances of like the brief on burden
8 of proof, and that is reflected in the letters that
9 are attached, my letter summarizing all discovery
10 at that time that was due, and then the League
11 saying, "Well, we agree with your letter except for
12 these three dates," and I'm not disputing your
13 changes. Whether they're right or wrong, in th
14 wake of the hurricane it's not worth fighting over
15 that there. We just accept all those dates.
16 I think the respondents understood we were
17 pushing the time frame forward only as to those
18 issues. I believe the petitioners believe that all
19 discovery was pushed forward two weeks. They will
20 have to speak for themselves.
21 I think it is up to you to decide how to
22 resolve this.
23 MS. KAVANAUGH: I typed the motion and Faxed it
24 to you from my home, and if it was ambiguous it
25 was our understanding and belief that everything was
26
1 going to be moved forward, and it could have been
2 definitely clearer.
3 The reason that we believed this was because
4 as I think we represented in other hearings for our
5 experts to formulate their opinions we have to get a
6 certain amount of discovery as to the basis for
7 the plan, document production, and depositions of
8 District personnel.
9 All of it got moved, so we assumed everything
10 was moved forward by two weeks, and we would
11 certainly like to see that, because we have had a
12 suspension in discovery, based, for example, on
13 the document production scheduled I think for
14 August 25th or 26th which is occurring, just occurred
15 last week or is occurring now, but, you know,
16 what can I say?
17 That's what we thought. If it isn't correct
18 or if it isn't what anyone else thought, then we
19 are asking that today, moving for that two weeks,
20 bumping everything by two weeks.
21 HEARING OFFICER: Now are you talking about
22 everything that's in the scheduling order?
23 MS. KAVANAUGH: Yes, not the hearing date, but
24 just the discovery scheduling order
25 HEARING OFFICER: So that the disclosure date
27
1 for the final disclosure I think was October 26th?
2 MS. KAVANAUGH: Would be like November 9th,
3 I think, was what we had been thinking, "Oh, now
4 it's November 9th."
5 HEARING OFFICER: So you want to move all those
6 dates back two weeks?
7 MS. KAVANAUGH: They don't.
8 MS. PONZOLI: We don't. You know...
9 MR. NETTLETON: Mr. Hearing Officer, Paul
10 Nettleton on behalf of the District, I think the only
11 thing we're talking about is the second disclosure,
12 if I'm not mistaken. I don't know of anything
13 else that's involved.
14 My, our position simply first is that we didn't
15 rely on anything they said in their motion. It's
16 my understanding just from discussions with counsel
17 and including the last hearing on the telephone
18 that the only issues that were involved in the
19 two-week extension were pending discovery during
20 that two-week hiatus, and that it didn't affect any
21 other matters in the scheduling order.
22 Specifically no one has ever mentioned pushing
23 off the date of the second disclosure until this
24 morning at our meeting, and that was the first time
25 I heard that was being proposed.
28
1 So it certainly wasn't within the contemplation
2 of the parties when we agreed to the two-week
3 extension, and frankly I don't see why we need to
4 extend the experts' two weeks, because unless the
5 experts themselves have personally been affected by
6 the hurricane, which I don't think is the case in
7 most situations, they are still going to be able to
8 identify who they are and their areas of testimony
9 even if they haven't gained entrance yet, because
10 obviously even if they got entrance back when we
11 started this process they would still be doing the
12 testing, so I don't see what that has to do with the
13 revelations that the second disclosure, because
14 they're planning to continue testing past
15 October 26th anyway.
16 MS. KAVANAUGH: Could I make a suggestion?
17 You know, and you're probably just going to grant the
18 motion, but I was going to suggest we will try to
19 live with the October 26th deadline, and if we have
20 specific situations where it's a problem with
21 specific experts then we will ask for relief as
22 to those if the two weeks is really bothering
23 them.
24 HEARING OFFICER: Okay. Why don't we try to
25 do that? I think to the extent that we can stay with
29
1 the order as it was entered before let's try to
2 do it.
3 Now I think the hurricane obviously caused a
4 lot of confusion and difficulty for everyone, and
5 I believe I spoke with Ms. Kavanaugh, Mr. Hyde,
6 Ms. Ponzoli, and several other people who called
7 me regarding that situation, and my response was
8 consistently, "Well, be sympathetic and try to
9 understand that everybody is in a difficult deal,
10 and we'll get back on schedule as best we can."
11 Let's try to get back on schedule. If there
12 are specific problems in doing so, then let's
13 address those in specifics rather than moving
14 anything back.
15 MR. NETTLETON: Then I would say, Mr. Hearing
16 Officer, if there are specific problems then I would
17 hope we can agree to extend relating to the
18 specific problems, and it won't necessarily have to
19 be brought up by a motion or something. I don't
20 think there's a need to amend the scheduling order
21 now.
22 HEARING OFFICER: Yes, I think we should try
23 to stay with the scheduling order, and if there are
24 specific situations try and work it out. I think
25 everybody knows the difficulties that have been
30
1 caused by the hurricane and are sympathetic to it.
2 We'll try to do that.
3 Ms. Ponzoli, what is the bottom line with
4 respect to the other issues that are in the proposal
5 regarding the August 21st hearing? Is there, I
6 guess we have talked about some of these things here,
7 but, you know, are there separate paragraphs that
8 are still in dispute that need to be resolved?
9 What's the time frame for submitting a proposal on
10 that?
11 MS. PONZOLI: Well, since we are going to have
12 rulings either today or if you take time to think
13 about them over the presentation today, I think it's
14 the split samples, the sites, and I guess the special
15 use we have just resolved a few minutes ago, so
16 there may only be two issues left, the first eight
17 paragraphs deal with the Refuge and the Park.
18 What is submitted to you by Mr. Fitzgerald and
19 Mr. Burgess should cover those. There is no need
20 for each of us to address those individually.
21 As to our entry in the EAA I think we're in the
22 same situation. You will issue a ruling today,
23 or you will give guidance as to where we're going,
24 so that...
25 HEARING OFFICER: So that issue from August 21st
31
1 was really carried over to today anyway?
2 MS. PONZOLI: Well, that's right, and then as
3 to our ability to litigate the issues raised by
4 their pleadings I think I would ask you to
5 incorporate that in some order, and I think the
6 record we have today will reflect the paragraph, it
7 was paragraph number 10 with Mr. Green's additional
8 sentence.
9 HEARING OFFICER: Okay, now I'm not sure what
10 you mean by litigate the issues in their petition.
11 I think that the petition frames the issues that
12 are in dispute in this case, and the U. S. Government
13 and all the intervenors are here in support of the
14 SWIM plan as it was drafted, which means that
15 they're entitled to defend the SWIM plan against
16 all challenges as framed by the petitioners.
17 MS. PONZOLI: Yes, sir. I have no problem with
18 that, and I think they may have no problem with that
19 at this point, but the argument was made on the 21st
20 that the United States was in as a limited
21 intervenor and could only defend the SWIM plan, not
22 oppose the petitions. That explicit argument was
23 made.
24 And we said, "No, we can oppose the petitions
25 in support of the SWIM plan."
32
1 MS. KAVANAUGH: I don't think we took that
2 position, Mr. Hearing Officer. What you said is
3 basically what our position was. If that was the
4 way it came across...
5 HEARING OFFICER: I remember the discussion, but my
6 position I think on August 21st and certainly
7 what I meant to convey is that I believe that the
8 petitions frame the issues that are involved in
9 this case, and I don't think that the United States
10 or the intent of my order limiting their participation
11 was simply to mean they can't come in here and
12 present new evidence or any evidence regarding issues
13 that should have been in the SWIM plan but aren't,
14 and that's what I intended to preclude from happening.
15 But to the extent that any of the petitioners are
16 raising issues which challenge the assumptions inherent
17 in the SWIM plan or how it's being implemented, then
18 certainly the U. S. Government is entitled to offer
19 evidence in rebuttal to those contentions.
20 MS. KAVANAUGH: Certainly.
21 HEARING OFFICER: The petitioners frame the
22 issues, and the U. S. Government is free to respond
23 to those issues as they deem appropriate.
24 Okay? So, and I'm not sure that that needs to
25 be in the order specifically. I mean, I think that's
33
1 common sense in terms of what's at issue.
2 MS. PONZOLI: I'm fine. And then the final one
3 is simply the effect of the two-week extension, which
4 we just covered.
5 MS. KAVANAUGH: I think we have covered that.
6 HEARING OFFICER: So the scheduling order will
7 stay as is. If there is any need to make adjustments
8 to that, they will try to do it, and if not file
9 specific motions.
10 MS. KAVANAUGH: We withdraw our request for
11 the two-week extension.
12 HEARING OFFICER: Okay, so that essentially
13 all this paragraph says, aside from the paragraphs
14 on the Refuge and the Park, we don't really need to
15 get into any of that. There's no need for another
16 order.
17 MS. PONZOLI: Right.
18 HEARING OFFICER: We'll just take care of
19 that with the October 15th submittals, and after the
20 meeting between Mr. Burgess and Mr. Fitzgerald
21 we'll try to get an order together that delineates
22 specifically the I guess access and entry issues in
23 terms of the Park and the Refuge.
24 That was the easy one, right? Before we get
25 into the more difficult ones, I did note that the
34
1 motion for protective order regarding the production
2 of documents with respect to Dr. Parks' deposition,
3 and there was something in my mail this morning that
4 there was a withdrawal of that motion, is that right?
5 I didn't get a chance to read that, and I don't know.
6 That's not it?
7 MS. PONZOLI: They withdrew it for us.
8 MS. KAVANAUGH: The deposition is over.
9 MS. PONZOLI: The deposition took place,
10 Mr. Hearing Officer, and I think in the sense the
11 deposition took place and we worked our way through
12 it, then in that sense it is moot.
13 I think some of the issues that were raised
14 there are still very much alive and well, and that
15 we will be returning to you for rulings on certain
16 things that occurred prior to that deposition and the
17 issues that were raised via a vis expert witnesses,
18 fact witnesses, documentations, and the type
19 documents, but I don't think you need to rule on
20 that today, and I don't think anybody here today
21 wants to get into it.
22 MS. KAVANAUGH: We don't need to respond.
23 MS. PONZOLI: No. No. Let's let that until it
24 happens again, because we're heading for it, it's very
25 clear.
35
1 HEARING OFFICER: Okay, so basically you're
2 agreeing then your motion for protective order is
3 moot at this point, and if there's something that
4 needs to be brought up with respect to the issues
5 raised you will do it by separate motion?
6 MS. PONZOLI: Yes, sir. Yes, sir.
7 HEARING OFFICER: Okay. All right. I guess
8 next is the United States request for production of
9 documents.
10 There were objections filed by the Coop and
11 the League as well regarding financial aspects of
12 those requests for production and also as to other
13 Issues that were sought in the request for production.
14 As I understand from reading the motion for
15 protective order that was filed and the motion to
16 compel, response to motion to compel, those issues
17 today, we'll deal with the financial issues, and the
18 other issues will be, have they been resolved, or where
19 are we on the other objections?
20 Before we get into the financial, I'm just
21 trying to understand will we have to deal with the
22 other objections at a future date, or have they been
23 worked out, or what...
24 MS. KAVANAUGH: I think one we resolved this
25 morning as to the experts.
36
1 MR. SAXE: The expert documents.
2 MS. KAVANAUGH: That was Request 2, 3, and 4,
3 1, 2, 3, and 4.
4 MS. PONZOLI: I believe the United States
5 represented at our meeting this morning we wished
6 to see the outcome of today's hearing. I'm not sure
7 we have a total agreement on that production of
8 expert witness documents. That's a separate reading
9 of the discovery schedule, Mr. Hearing Officer.
10 We read it any request for expert witness
11 documents can be done at any time and can be filled
12 at any time, those documents that exist. They
13 read it only prior to deposition.
14 We tried to reach some agreement, but I don't
15 think we reached closure as to what expert witness
16 documents, what we can agree, when they will be
17 produced.
18 MR. GREEN: We would concur with Ms. Ponzoli
19 that those issues should be relegated to a later
20 deliberation in light of the importance of the
21 other issues before us today. That's why we asked
22 for the procedure.
23 HEARING OFFICER: So we will just at this point,
24 the other objections that do not relate to the
25 financial matters that were raised by the
37
1 petitioners to the U. S. request for production,
2 we'll just have to defer those, and the parties will
3 address those items by motion to compel or by a
4 subsequent motion at a future date, is that right?
5 MR. HOFFMAN: For the record, the Fruit and
6 Vegetable Association and the other parties in
7 Case No. 92-3040 also filed objections to the request
8 for production of documents, and we didn't have the
9 same controversy with respect to witnesses, because
10 we were relying more on the other people for witnesses
11 and also the subpoenaing of state and federal
12 witnesses.
13 We did object to the requests for such things
14 as payroll records and that kind of thing.
15 As I understand the law, there were no motions
16 filed concerning our objections, but by research
17 indicates that once we filed objections that
18 establishes the issue, and there need be no further
19 motions.
20 So our objections are at issue in the case.
21 HEARING OFFICER: Okay. I thought that during
22 the telephone hearing that we did last week that what
23 we had agreed to do, I understand that each of the
24 petitioners has filed objections to the request for
25 production, and those objections go, and I'm
38
1 categorizing them both as financial and other,
2 because the financial we will deal with today, and to
3 the extent that there are objections to the request to
4 produce dealing with other issues, we'll postpone
5 those, but after the hearing last week or what I
6 intended to make clear was we would deal with all of
7 the objections that any of the petitioners had, would
8 be considered within the scope of the motion to
9 compel that the U. S. had filed.
10 So to the extent that your objections go to
11 financial grounds, we're going to deal with those.
12 If it goes to other grounds we'll defer them along
13 with everything else.
14 So all petitioners will be in the same boat in
15 terms of these discover issues, and even if the
16 objections might be worded differently there was a
17 lot of overlap at least as I read them in going
18 through, and there seemed to be a great deal of
19 consensus in the nature of the objections.
20 So the financial issues let's deal with today.
21 The other issues for all petitioners we will put
22 off. Okay?
23 All right. Before we get to the crux, which I
24 guess the two main issues we have to deal with are
25 the financial information and then the U. S. entry
39
1 onto the petitioners' land, and those were the two
2 main reasons we are here today, now or later.
3 The other issue that I recall being outstanding,
4 and it may be within the scope of what Mr. Fitzgerald
5 and Mr. Burgess will do, has to deal with the
6 sampling and the test site. Will that be addressed
7 in the proposal of October 15th?
8 MS. KAVANAUGH: We have experts pursuant to the
9 last hearing to testify about the specific document
10 issues that remained, as to the number of samplings,
11 the number of sites, so we are prepared to go forward.
12 HEARING OFFICER: So that's the petitioners
13 ready to go forward today. What's the U. S. position?
14 MR. WATTS-FITZGERALD: We're prepared to go
15 forward, Mr. Hearing Officer.
16 As you may recall a month ago the United States
17 agreed, this is with respect to Loxahatchee, agreed
18 to 18 sites to be visited one time only. There are
19 two additional sets of sites.
20 The 14 sites on historical transects will be
21 recurrently visited, month by month, and then they
22 desire to establish six new sites to be visited month
23 by month, for a total of 20 sites monthly visits,
24 complete sets of samples taken on a monthly basis
25 throughout the duration of the discovery period,
40
1 through basically the end of February.
2 The United States contested that the number and
3 intensity is unwarranted, and given the nature of the
4 area and the nature of the already available evidence
5 that that was excessive.
6 You suggested that the opposing parties and
7 allied interests go back to the well and consider
8 something on the order of perhaps, and I took this
9 from the transcript, seven of the historical and
10 six or seven new sites, because you recognized that
11 they had established sties, for a total of 14 versus
12 20 sites recurrent, to cut down on both the manpower
13 drain and the expanse and the impact on the resource.
14 (WHEREUPON, DR. LUKE LEFT THE HEARING ROOM.)
15 At our meeting this morning we were advised that
16 the League and its allied interests were going to
17 insist on the 20 sites and were prepared to put
18 witnesses on as to whether samples can be split or
19 not.
20 That's sort of where we stand on that.
21 HEARING OFFICER: All right. So that is not
22 going to be one of those issues that's going to be
23 resolved? We will deal with that. So we have three
24 issues to deal with today. Does everybody agree on
25 that? All right.
41
1 (WHEREUPON, DR. LUKE ENTERED THE HEARING ROOM.)
2 MR. WATTS-FITZGERALD: In a spirit of mutual
3 accommodation and cooperation, or at least one-sided
4 accommodation, the United States will accept the
5 provision of replicate samples by the League and
6 its allied interests as opposed to truly splitting
7 the samples that are taken, provided their field
8 personnel in fact pull the extra samples for the
9 United States, so there will be no dispute later that
10 our field people used some technique so widely
11 divergent from the one employed by the field personnel
12 that the testing becomes an issue.
13 We would rather that not be something that
14 anybody has to address later.
15 (WHEREUPON, A BRIEF OFF-THE-RECORD DISCUSSION
16 WAS HELD.)
17 MS. KAVANAUGH: Mr. Hearing Officer, we also in
18 a spirit of accommodation, as we indicated to the
19 United States this morning we have no problem
20 replicating, never have had a problem of replicating.
21 However, we have indicated to them that will of
22 necessity take longer at the site and could prolong
23 it.
24 We don't know frankly until we get in the field
25 how much time is going to be involved, so it could
42
1 cause a problem where it will take longer, and we're
2 prepared to offer expert testimony to say why.
3 And we would also be willing to wait until the
4 overflight and the decision about establishment of
5 the six new stations to address the question of
6 whether we need 20 sampling stations.
7 As I understood our discussions last time, you
8 said perhaps we won't need six additional, and perhaps
9 we can go with the 14. Mr. Burgess says we may need
10 only two. We don't know. There's no way we'll know
11 until we have the overflight and can see where those 14
12 sites are.
13 Our scientists may tell us those in fact are
14 representative sites, so we would be willing, subject
15 to Mr. Burgess' poking me in the back and telling me
16 otherwise, we would be willing to defer that issue to
17 the discussions, the overflights and then the
18 discussions between scientists, Mr. Burgess, and
19 Mr. Watts-Fitzgerald, but we would like to do the
20 overflights on October 6th, is that the date?
21 Then we can get this moving along. We have
22 some, as you know, serious time problems as to the
23 wet/dry season.
24 HEARING OFFICER: Mr. Fitzgerald, is that amenable
25 to you?
43
1 MR. WATTS-FITZGERALD: It's superficially very
2 attractive, Mr. Hearing Officer. I have a couple of
3 minor problems with it.
4 First, in their pleadings they have already said
5 the basis is that the existing sites are not
6 representative. Their experts sitting here, whom
7 I know from a certain exposure around the South
8 Florida Water Management District know generally
9 where those sites are. It's a matter of public record
10 where they are.
11 They are truly representative of the Loxahatchee
12 area. They are along the canal, they are in the
13 north, they are in the south, and the interior marshes.
14 They are well distributed throughout that piece of
15 territory.
16 So I have a little problem saying we have to wait
17 for an overflight.
18 Secondly, their experts have also visited
19 Loxahatchee in the past. They have been on the
20 ground, and they have been in the airboats, and they
21 knew the terrain or ought to, or they would be
22 incompetent anyway, and so I have difficulty buying
23 into an argument beyond that 15th of October when we
24 again will have to come back and say, "Let's resolve
25 this issue." I'd like to put this to rest.
44
1 MR. BURGESS: I'd like to know which one of my
2 experts has been in an airboat in Loxahatchee.
3 HEARING OFFICER: Hold on. I guess from what
4 I'm understanding from what they're saying and from
5 what I gather you said before, we have a problem,
6 number one, in determining how many historical sites
7 you may be able to locate, so don't we need to know
8 how many of them we're going to need to locate before
9 we can determine exactly, you know, where the sites
10 are going to be established?
11 MR. WATTS-FITZGERALD: We are not prepared to
12 guarantee every one will be found, but we know where
13 targets still exist, and we have a fairly good
14 degree of confidence we will be totally not left in
15 the lurch on historical sites. There are more than
16 14, incidently. The 14 that will be the recurrent
17 monitoring sites we expect to be able to locate,
18 because they are designated as monitoring sites.
19 HEARING OFFICER: Okay, so you're saying you
20 want to go forward today and have all the sites
21 designated as to where the recurring testing will take
22 place?
23 MR. WATTS-FITZGERALD: The problem, Mr. Hearing
24 Officer, is precisely as they have pointed out.
25 If they add six more sites, then we're in a
45
1 situation of lengthening the entire process. We
2 agreed last month that we would not currently object
3 to the notion of up to four days, with the
4 expectation and their good faith representation
5 the learning curve would be such that maybe they can
6 do it faster, and they will try to do it faster, but
7 now they're saying, "Well, we now have to do a
8 replicate."
9 They have been offering that all along, but now
10 it's going to take longer, "Because we're going to do
11 replicate samples."
12 Seven to 10 days on the initial, including the
13 one day for the aerial, ought to be more than
14 sufficient time on a single station visit, and on the
15 setup stations to take those replicates and be done
16 with them.
17 The water samples on a monthly basis take next
18 to no time at all to conduct. You talk about
19 filling a jug.
20 MR. BURGESS: Until today we haven't had any
21 offer that duplicates or replicates were sufficient.
22 Our pleading, our request clearly states up to 10
23 days is required to collect our three replicates.
24 If there are additional core samples it may add
25 additional time.
46
1 We're not prepared to say what that period of time
2 will be. Their observers are going to be there. I
3 assume that they're going to point out an area where
4 you can take one right next to the one we take,
5 and therefore it shouldn't take very much longer,
6 but we don't want to be hamstrung on the seven to 10
7 days way ahead of the fact without having the initial
8 aerial overflight.
9 And similar with respect to the additional
10 sites. What we're offering to do, since there appears
11 there may be remaining issues or decision before the
12 Hearing Officer after October 6th, is to have that
13 aerial overflight occur, the parties put the
14 document together, and all additional issues with
15 respect to the sites be determined at that one hearing
16 on that subject.
17 It was just an accommodation to I think dispose
18 of this issue and move on to the other two that we
19 offered after they moved to accommodate us.
20 HEARING OFFICER: I think we're arguing about a
21 lot of things we may not, I mean, we are presupposing
22 there's going to be a delay in taking replicate
23 samples, when there very well may not be. If we get
24 into a situation where the first time out this thing
25 gets delayed, then we can worry about it then.
47
1 But it would seem to me it's not going to be
2 that big a deal to take the replicate sample, and
3 it shouldn't overly extend the time period, and then
4 if it turns out it does, then bring somebody in
5 there and tell me why, and you tell me why it
6 shouldn't, and we'll deal with that issue then.
7 But in terms of the site itself, I think what I
8 suggested last time is that, you know, there was, I
9 would have to go, I haven't read the transcript, but
10 as I recall the issues as they were framed last time
11 there was a question as to whether there had to be
12 monthly testing at every historical site and so many
13 new sites, and what I suggested was, "Well, take a
14 sample of the historical site, and take a few new
15 sites, and try to reach accommodation there."
16 That's what I thought was a reasonable approach
17 to try to deal with these issues.
18 It still seems to me to be a reasonable
19 approach, and I don't know why that's not a workable
20 situation.
21 MR. BURGESS: We're prepared to put evidence on
22 today, if Your Honor desires.
23 MS. KAVANAUGH: We haven't presented, and I'll
24 try to comment on what Mr. Fitzgerald presented, and
25 we will present testimony, but we are saying we have to
48
1 use all of those stations, and we will present
2 testimony as to why we do.
3 I guess what we're saying is we agree with the
4 approach you suggested. We just aren't prepared to
5 sit down and work it out, because we haven't been in
6 the field yet.
7 If we go in the field it may well be that
8 Dr. Davis or other investigators say, "We don't need
9 six." That's, we just don't know. That's all we
10 were suggesting.
11 HEARING OFFICER: All right.
12 MS. KAVANAUGH: We're prepared to defend the
13 program as it is.
14 HEARING OFFICER: It seems to me to be a
15 reasonable approach to get the oversight, I mean the
16 overflight, and try to figure out if there is a
17 disagreement. It may be after the overflight you
18 can reach an agreement that, you know, "We'll do this
19 many historical sites and this many new sites in
20 this area," and then there may not be a problem.
21 I mean, do you have a problem with that
22 approach? I don't understand your objection.
23 MR. WATTS-FITZGERALD: I'm a little concerned
24 that this is going to lead to further delay. We
25 were unable to agree this morning that the record
49
1 last month established this should all cut off by
2 1 March, which is the close of discovery.
3 Our concern is right now on the expert
4 designations we have a long list from that party
5 saying, "Nobody has any decisions yet; nobody knows
6 any formal positions; we're not giving you the basis
7 for the positions until conclusion of all work."
8 To the extent that anything delays further
9 actually getting out there or to the extent that the
10 intensity of a sampling regime is overstated and
11 overdone and thereby takes additional time to
12 produce the data, we are looking at a delay in the
13 ability of the United States to find out what the
14 case is about.
15 We have seen so little at this point, and the
16 second amended petition that was served on us
17 yesterday served only to in fact de-emphasize the
18 particulars of their concerns and go with such
19 generalities that we're having difficulty figuring
20 out what type of case is going to be presented
21 before you, if any, when we go to hearing in April.
22 To the extent this raises concerns for the
23 timing issue of their experts' resolution of
24 development of some opinion, we are concerned.
25 HEARING OFFICER: Okay. Well, let me just say to
50
1 the extent that I'm able to do so, it is going to be
2 my goal to try to make sure that this case does not
3 become any more protracted than necessary.
4 You know, at this point I'm still handling a
5 bunch of other cases, but I am in the process of trying
6 to work that out so I can focus even more on this,
7 and I do intend to stay on top of it and make sure
8 this moves forward on a timely basis, and if I sense
9 that there are any of the parties trying to delay
10 the process, them I'm going to react accordingly.
11 I think that's contrary to what the Legislature
12 directed and to what my role in the process is.
13 So I do not intend in the, for this administrative
14 proceeding to be an unnecessary source of delay in
15 the entire, overall scheme of things, so I will do my
16 best to try to keep that going.
17 At this point I do not sense that there has been
18 an effort to unduly delay on the part of any of the
19 parties. I think the hurricane obviously caused
20 some problems, and I think as we discussed before
21 the petitioners in my view have a clear right to go
22 out to the Park and to the Refuge and conduct
23 testing.
24 If the extent and the repetitiveness and how
25 often that has to be done, that's another issue, but
51
1 the first step is to establish the sites and
2 begin the testing process. We need to get that
3 moving.
4 I think the most logical way to go about
5 getting that started is to do the overflight, make a
6 final decision as to what those sites are going to
7 be, how many of the historical sites, how many new
8 sites, and then begin the process, and after the
9 initial samples are taken there may be a
10 determination that monthly sampling is not necessary.
11 I think that's what we discussed last time.
12 There may be a determination that it is. But
13 once the initial access has been done and the experts
14 have had an opportunity to take their initial samples,
15 the parties can get together and see if there is a
16 consensus.
17 If there's not, then immediately bring it to
18 my attention, and let's take it up, and we'll move
19 from there. I think that's the best way to keep
20 this process moving.
21 MR. NETTLETON: Mr. Hearing Officer, on behalf
22 of the District, our primary concern is to avoid
23 delays as well, and I just may be would like
24 clarification from the League, because I don't
25 understand what they proposed, and that is are they
52
1 talking about the overflight at that time their
2 experts would be in a position to decide how many
3 additional sites there would be, or we would have to
4 get into the actual sampling first and analysis
5 before we decide if we need additional sites? I'm,
6 when are we going to make that decision?
7 MR. BURGESS: I think we will be in a position
8 after the overflight to handle all remaining issues,
9 including the number of additional sites that may be
10 necessary. If we're able to land during the aerial
11 recon for the 14 additional sites in the helicopter
12 and accomplish that in one day, we'll be in a position
13 to come back and propose in the single document
14 that we're talking about putting together where we
15 want to go and how often.
16 As we said earlier, it may be 14, and it may be
17 six additional, maybe two additional, maybe no
18 additional. We don't know. We'd like the
19 opportunity to conduct the overflights, land, meet
20 with our experts, propose a single document, and
21 come back before the Hearing Officer for final
22 determination of all issues on the Refuge access.
23 HEARING OFFICER: All right, I don't have my
24 calendar in front of me. Does anyone know what the
25 next date is we have scheduled?
53
1 MR. WATTS-FITZGERALD: The 30th of October.
2 HEARING OFFICER: The 30th of October? Let's
3 set up either a telephone conference hearing or if
4 you want to do it in person we can be here on the 17th.
5 Let's do it the day after.
6 MR. WATTS-FITZGERALD: That's a Saturday.
7 HEARING OFFICER: The 15th was the day you were
8 to try to reach agreement, and the 16th, we can either
9 do it by telephone or do it here, and we'll resolve
10 any outstanding issues on that sampling issue, the
11 sites, and the frequency.
12 If there's no consensus, bring witnesses, and
13 let's get it resolved. Friday, the 16th.
14 MR. WATTS-FITZGERALD: At one o'clock?
15 HEARING OFFICER: Yes. Well, I mean, I don't
16 know if you want to do it by phone or whether,
17 well, if we do witnesses we may need to do it here.
18 MS. KAVANAUGH: Let's assume that.
19 MR. WATTS-FITZGERALD: Maybe we'd want to start
20 at ten in the morning, to make, to be on the safe
21 side. Perhaps it won't come to that.
22 HEARING OFFICER: Why don't we set, we'll set
23 it for ten o'clock on the 16th. This will be a
24 supplement to the one we'll still have on the 30th.
25 And hopefully once the overflights take place and
54
1 there has been some opportunity to discuss it
2 there will be consensus reached as to...
3 MS. KAVANAUGH: And we'll try to do it on an
4 expedited basis. Ms. Ponzoli and I have agreed not
5 to be there, so perhaps it will go well.
6 HEARING OFFICER: All right. So that takes
7 care of that issue then hopefully once and for all.
8 There is agreement there will be replicate rather
9 than split samples. The frequency and the sites
10 themselves will be discussed following the overflight,
11 and we will resolve that on the 16th.
12 Okay. The next two issues are the U. S. access
13 to the petitioners' property and the financial
14 information. Any preference as to which one we need
15 to do first?
16 MR. GREEN: If you would reverse the order from
17 what you just stated that would be our preference.
18 HEARING OFFICER: The financial information
19 first?
20 MR. GREEN: Yes, sir.
21 HEARING OFFICER: All right. In connection
22 with the financial information, I did get an
23 opportunity to read the various pleadings the parties
24 have filed in connection with that.
25 One of the issues that I guess that I have
55
1 reviewed it based on documents filed by the League
2 is their position that a lot of the issues of,
3 that may have put financial condition at issue in this
4 proceeding have been withdrawn as a result of the
5 second amended petition.
6 I have skimmed over the second amended petition,
7 and I have not had an opportunity to study it in any
8 great detail.
9 There were one or two paragraphs that were
10 included within the second amended petition that I
11 questioned whether it still raised some of the financial
12 issues that were involved, but having said that
13 the way that the argument was presented by the League
14 in its responses or whatever, motion, I don't know,
15 at this point I get lost as to who's filing what,
16 but...
17 MR. SAXE: Mr. Hearing Officer, Keith Saxe with
18 the Justice Department for the United States.
19 There may be a threshold process question here
20 before we are able to address these issues.
21 I received a copy just this morning of a filing
22 by the League, a fairly substantial brief that
23 appears to raise some of the very arguments you are
24 alluding to.
25 Now I have not had an opportunity to review that
56
1 memorandum, and my understanding was, although I
2 was not at the teleconference last Tuesday, that
3 any such supplemental briefing was to be filed and
4 delivered by Friday, and that in fact did not
5 occur, so as a matter of fairness and avoidance of
6 prejudice to the United States I think the United
7 States would request that we deal with this as a
8 threshold question, whether or not that brief should
9 be stricken, and argument on those matters barred for
10 failure to comply with the requirement of the Hearing
11 Officer at the last teleconference.
12 HEARING OFFICER: Well, let me look at these.
13 As I understand it there was a supplemental response
14 that was filed, but there was also the League's
15 original motion for protective order as to confidential
16 Information that was filed on September 25th, and that's
17 the document I'm referring to, and that was filed
18 on Friday.
19 MS. PONZOLI: Sir, it was served by mail on
20 the 25th. You had in the teleconference indicated
21 that if they were going to raise arguments different
22 from or distinct from the Cooperative's that they
23 were to serve that and to give it to the United States
24 by close of business on Friday.
25 They stuck this in the mail on Friday, and I was
57
1 in deposition all day yesterday, and when I dropped by
2 my office I happened to see it, and as Mr. Saxe said
3 he saw it for the first time this morning.
4 MR. SAXE: After arriving on the flight last
5 night I received it this morning.
6 MS. PONZOLI: I think we have a problem with
7 this type of very late filing in violation of your
8 order, and I think we further have a problem that
9 it follows a pattern on failing to meet the deadlines
10 when briefs are due.
11 I have literally had to pick up briefs at
12 their offices, and I have waited in my office until
13 seven o'clock at night on Friday nights trying to
14 get a brief out. I think we have a substantial
15 problem with the filing of the briefs.
16 HEARING OFFICER: Well, let me just say as I
17 recall the way the conversation came down last week
18 I think maybe for the first time during the telephone
19 hearing I alerted all the parties, because there was
20 some question as to whether or not there had to be a
21 motion to compel filings, a motion to compel which
22 arguable only related to the Cooperative's
23 objections, since the Cooperative had filed a motion
24 for protective order, and I thought I made clear
25 during the 21st, I guess it was the 21st, when we had
58
1 our telephone conference hearing, that if the other
2 petitioners also intended to stand by their objections
3 that they needed to and had different arguments that
4 they needed to file it by Friday, that was the
5 intention of what I was saying last week, and that
6 was in anticipation of the U. S. Government filing
7 its brief on the motion to compel, which would put at
8 issue all of the legal arguments and the financial
9 matters and give each of the petitioners an opportunity
10 to respond.
11 So we were all acting under a very tight time
12 frame, and I think, you know, I understand your
13 position of not having had an opportunity to respond
14 to that, and I thought I made it clear that the
15 response from the petitioners should be filed and
16 presented to the U. S. Government and the Water
17 Management District by Friday. If that wasn't done
18 I think that is a problem. I got mine on Friday.
19 MS. KAVANAUGH: Mr. Hearing Officer, this was
20 prepared, so you understand it, it was prepared in
21 the Sarasota Office. Mr. Hyde ensured it was filed
22 here. My understanding, and had I known I would have
23 brought Mr. Bachelor here, was we advised if they
24 wanted to pick it up it was ready, and we would be
25 serving it.
59
1 I don't know what happened to it after that.
2 I'm just telling you that I wasn't on the telephone
3 conversation Tuesday, so I can't represent anything as
4 to that.
5 But certainly they should have had it by Monday
6 if the only way was by mail, and we did not realize
7 Mr. Saxe was the person, he's listed, and we served
8 him, but we did not realize we had to physically
9 deliver it. He's in Washington. Had we known that
10 we would have had that done.
11 HEARING OFFICER: Let's not spend a lot of time
12 arguing over these procedural aspects of it, because
13 we have some very substantive matters we have to
14 deal with.
15 The issues that are raised in the response I
16 think raised some very key issues that we need to
17 deal with, and I think it is important for the U. S.
18 Government to have an opportunity to review and
19 respond.
20 If you need time to file something in writing
21 after this hearing I'll give you an opportunity to do
22 that, and I think that's the best way to handle it,
23 rather than go back and forth.
24 For future reference, and again we did this last
25 time on a very tight time frame, and we've done it
60
1 verbally over the phone, and it may have been a source
2 of confusion, but I think the intent of what I was
3 trying to say was to make sure that the pleading was
4 filed and delivered to the opposite party in time
5 for them to have an opportunity to review it prior
6 to this hearing.
7 For future reference that's the way I would hope
8 all parties would govern themselves, so there's no
9 problem as there was in the past.
10 So given where we are now I think the best way
11 to approach it is to afford the U. S. an opportunity
12 to submit something in writing if they need to.
13 I do think there were some salient points that
14 were raised in connection with the response that
15 was filed by the League and in particular with respect
16 to whether or not the financial issues are pertinent
17 to the scope of the proceeding, in view of the economic
18 study that seemed to be ongoing at the Water
19 Management District now and as to whether or not a
20 lot of those issues are really outside the scope of
21 the case.
22 Now I think the initial petitions that were
23 filed certainly placed a lot of those issues as fair
24 game, and I think at least given the very broad
25 scope of the allegations in the initial petitions
1 that were filed by the League and the Cooperative,
2 they very well subjected themselves to discovery
3 regarding the financial issues.
4 Now it seems to me that the second amended
5 petition that was filed by the League at least
6 removed some of those issues from the scope of this
7 proceeding. Now whether it precluded that or not is
8 another matter, and I think the U. S. Government and
9 the respondents should have an opportunity to fully
10 review that second amended petition and bring to light
11 those aspects of the second amended petition that
12 still deal directly with the practicability I guess it
13 comes down to of some of the aspects of the SWIM plan.
14 But I guess probably the best way to proceed
15 with this is to have the League summarize very
16 briefly what their second amended petition was
17 intended to do, what aspects of it have been changed
18 from their initial petition, and to what extent they
19 do in fact intend to argue the practicability and the
20 financial burden of the SWIM plan on the League and
21 its members.
22 MR. GREEN: Mr. Menton, if it's acceptable to
23 you I would like to address our motion for a protective
24 order filed on behalf of the Cooperative.
25 Our position is somewhat dissimilar to the
62
1 League's position potentially, and I think our
2 arguments are ripe, having been a pre-hurricane filing
3 and so forth.
4 If it's acceptable to you, I'd like to go ahead
5 with that argument.
6 HEARING OFFICER: All right.
7 MR. GREEN: This is an interesting issue, and
8 I don't think there's a lot of guidance in the court
9 cases that we can bring to your attention, but I
10 believe that it may be helpful to you to put this in
11 context.
12 Something you said earlier, Mr. Menton, that I
13 think is absolutely critical, you said the United
14 States cannot raise issues in these proceedings that
15 maybe should have been raised in the SWIM plan but
16 weren't.
17 I think to a certain extent, although it may not
18 be their intention, that's what the request for
19 financial information does.
20 Let me explain why I believe that, what we think
21 we would like to prove in terms of an economic case,
22 and why we think in spite of that the scope of the
23 discovery does not have sufficient materiality or
24 degree of materiality that will justify disclosure
25 of confidential financial information.
63
1 At the outset in our motion for protective
2 order on page three, and I'm sure you have read this
3 document, you will see a very detailed list of items
4 that the United States is seeking disclosure with
5 regard to, payroll and compensation records, tax
6 returns, individual income tax returns, financial
7 statements, dividend distribution information,
8 specific loan information, employment information
9 that gets down to the very people involved for five
10 years, and in most of these cases we're talking about
11 five years worth of information, and so on and so
12 forth.
13 Now the United States has cited in their
14 motions to compel discovery some very interesting
15 cases that deal with punitive damages, where the
16 financial ability to pay is directly an issue, cases
17 that involve dissolution of partnerships, where
18 claims concerning excess profits and division of
19 profits are obviously the main item in front of the
20 Court.
21 They talked about cases that deal with judgment
22 creditors, where a judgment creditor is trying to
23 determine the ability to pay of a particular
24 defendant.
25 That isn't the case before Your Honor at all.
64
1 This case does not involve the ability of the
2 farmers in the EAA to pay on an individual basis.
3 It doesn't involve their financial resources in that
4 context.
5 What we think it does involve is an assessment
6 of the economic impact on that region that is the
7 type of assessment that DOAH sees all the time for
8 rulemaking. That is an estimate. It's the kind of
9 assessment in fact that the SWIM plan references.
10 HEARING OFFICER: Let me interrupt you for a
11 second. You are saying it involves an assessment of
12 the economic impact of the SWIM plan on the area
13 farmers?
14 MR. GREEN: Yes, sir.
15 HEARING OFFICER: If in fact the petitioners
16 intend to argue the economic impact of the farmers,
17 how can I fully evaluate that economic impact without
18 having information and evidence regarding the
19 financial condition of the farmers?
20 MR. GREEN: Well, I'm glad you asked that question.
21 I'd like to if I could introduce for the record,
22 and I guess this is kind of clumsy, pages, the first
23 two cover pages from the plan and then specific pages
24 151, 152, 153, and 154 of the planning document,
25 which is Volume I of the SWIM plan.
65
1 Mr. Menton, what this document says as I read
2 it, beginning at the bottom of page 152, is that the
3 District is doing an economic impact assessment of
4 the effects of this plan, and at the top of page 153
5 a description of the economic impact analysis study
6 will be included in the SWIM plan.
7 It goes on to say that the project would be
8 available in May, 1992, which is past, and the project
9 would be divided into 11 primary areas.
10 And I haven't provided you with this document
11 before, but I could just summarize, if I may, by
12 saying our view of this is that this is a regional
13 economic impact analysis, not Farmer A or Farmer B,
14 and we would ask, "Well, why shouldn't it be an
15 individual economic impact analysis?" I think it's
16 similar to rulemaking that DER or any other agency
17 might do to impose regulatory requirements upon
18 regulated interests to participate in those proceedings,
19 and under 120.54(2)(b), as you are aware, the
20 Legislature looks to estimates of cost or the
21 economic benefits to person directly affected by
22 the proposed action.
23 In practice that is generic regional
24 information or industrywide information. It's never
25 Mom or Pop.
66
1 What the United States is proposing to do
2 is to shift what is normally a regionwide economic
3 impact statement assessment, which is what the SWIM
4 plan commissioned, into an individual inquiry into
5 confidential financial records, and I'd like to
6 call Dr. Ron Luke to the stand and explain to you
7 why it's necessary and appropriate.
8 MS. PONZOLI: I would note, Mr. Hearing Officer,
9 that Mr. Green gave no notice that he was going to
10 present evidence at this hearing, so I guess we will
11 have to object to the whole line of questioning.
12 I don't know. I mean, maybe we need to bring
13 our economist and put him on the stand and explain
14 why you can't do a regional economic impact analysis
15 if that's the only issue that all the people are
16 putting in question without more detailed
17 information.
18 I mean, what do you want to do in regard to our
19 lack of notice as to...
20 MR. GREEN: Well, Mr. Menton, I believe at a
21 hearing of this type it is customary to bring live
22 witnesses. This is a motion hearing.
23 Dr. Luke will testify in the areas we have covered
24 in our motion for protective order. He's currently
25 available for cross examination.
67
1 MR. WATTS-FITZGERALD: Mr. Hearing Officer, if
2 I may, Dr. Luke, as you may be aware, is the
3 designated expert witness of the party now profferring
4 him.
5 However, as of this date they have still
6 claimed in the only pleading addressing his testimony
7 that he has no final opinions and not expected to
8 have any final opinions until sometime in the future.
9 On that basis alone we would object to him
10 being profferred at this time.
11 HEARING OFFICER: I don't think he's offering
12 as to any opinions directly related to the SWIM plan
13 but to try to explain why, well, I'm not sure
14 exactly why you are offering him. It seems to me the
15 issues that we're dealing with really are legal in
16 nature rather than factual in nature.
17 MR. GREEN: That's correct, Your Honor, and
18 the reason I think it's legally relevant is under
19 Florida case law Your Honor is given authority to
20 balance the pros and cons of granting or denying
21 relief to either side, and furthermore Your Honor
22 is authorized to determine whether the degree of
23 materiality under the Cooper case is sufficient to
24 justify the production requested, and we believe
25 Dr. Luke's testimony is right on point with regard
68
1 to that, and we would put this in a concrete context
2 and allow you to rule on it.
3 HEARING OFFICER: Well, I think, I don't want
4 to get involved in a big evidentiary dispute over,
5 you know, between experts as to what's pertinent or
6 not.
7 It seems to me that the critical issues we have
8 to deal with here are what arguments are going to be
9 made by the petitioners at the final hearing
10 regarding the economic impact of the SWIM plan on the
11 petitioners and their members, and I think if we
12 crystallize those issues then we can determine the
13 extent to which financial information is pertinent.
14 I think that the initial petition at least as I
15 read it was very broadly based attacks on the SWIM
16 plan that arguably left open or opened the door
17 for a challenge, that the SWIM plan if implemented
18 would essentially put a number of the farms out of
19 business.
20 If that's the contention, one of the arguments
21 that's going to be made at the hearing, then I think
22 it does put the financial information of the
23 petitioners and their members at issue, and that's,
24 you know, it's that simple to me.
25 If that's not one of the positions that's going
69
1 to be taken at the final hearing, then maybe the
2 financial information is not at issue, and maybe we
3 don't need to get into it.
4 I guess what I'm looking for from you is an
5 understanding as to what exactly it is that the
6 petitioners intend to offer at final hearing in terms
7 of the allegations that are made in their petition as
8 to practicability of the plan and as to the
9 economic impact of the plan.
10 MR. GREEN: Your Honor, that's precisely why
11 Dr. Luke is here, to describe our economic case.
12 HEARING OFFICER: Okay. Well, if it's going to
13 shed some light as to what the nature of the
14 proceeding is, but I'll give you an opportunity to
15 present the testimony, and hopefully it will
16 crystallize the issues, but I did feel in reviewing
17 the pleadings that have been filed that the League's
18 filing on Friday seemed to address the crux of the
19 matter as I saw it, which was, you know, what are we
20 looking at in terms of the allegations that are being
21 made to challenge the petition.
22 Those to me govern the nature of the issues in
23 this case and therefore the scope of the discovery.
24 So I assume that's where you're going to take me
25 with him?
70
1 MR. GREEN: Yes, it is, Your Honor.
2 MR. SAXE: If I might just have an opportunity
3 preliminary to this presentation of evidence to
4 address a threshold legal question of the relevancy,
5 because I believe the Coop did file a motion for
6 protective order which I believe it did lay out the
7 legal argument upon which it attempts to hang an
8 argument that this testimony should be received now,
9 and I believe that if we can take a moment to
10 address it we may be able to find that the legal
11 question is dispositive, and we don't have to be
12 prejudiced by being put in a position of dealing with
13 testimony for which we have had no notice to prepare
14 rebuttal. So if I might just have one minute.
15 MR. HOFFMAN: There's another threshold real
16 quickly. I like that, threshold. I'd like to know
17 who the Justice Department layers are. They have
18 three or four that pop up like Tweedle Dee and Tweedle
19 Dum whenever they feel like it. Is there any
20 rationale to this giant Justice Department as to who
21 will be arguing? Do we have some delineation?
22 HEARING OFFICER: Well, I think, Mr. Hoffman, as
23 with the League there are certain attorneys that
24 are handling certain aspects of the case in terms of,
25 it's obvious Mr. Burgess is handling a lot of the
71
1 access issues for the League, as Mr. Fitzgerald is
2 doing, and Mr. Saxe is obviously handling this
3 aspect for the Department of Justice.
4 MR. SAXE: Yes, I might mention I have signed
5 pleadings, several that have been filed, fairly long
6 ago in this proceeding. It's no surprise to counsel.
7 HEARING OFFICER: I don't have a problem with it,
8 but I don't want to get into too much double teaming.
9 This in terms of this issue is obviously Mr. Saxe's
10 issue, so go ahead.
11 MR. SAXE: The legal argument that the Coop
12 makes, let me find my place, basically the arguments
13 addressed at page 12 of the United States' cross
14 motion, the Cooperative asserts that the United States
15 does not need these documents, because the Cooperative
16 does not intend to rely on any of them in formulating
17 testimony or evidence.
18 Specifically in the motion for protective order.
19 The League raises this argument in Note 3 on
20 page six of its motion for protective order when
21 it says, "Although petitioners generally question
22 the methodology employed and the findings reached by
23 the District consultants, to the extent they are
24 reflected in the final draft reports issued to date
25 petitioners do not intend to rely on any of the records
72
1 requested by the United States in formulating
2 testimony or evidence at hearing."
3 In response to that argument the United States
4 has noted in its opposition and cross motion that the
5 Cooper and Tennant case cited in our brief at page 12,
6 a Florida decision, one of the Florida Supreme Court,
7 clearly establishes that where a party is required
8 to defend against claims of economic loss, including
9 lost business, increased costs, or reduced profits,
10 that party is entitled to discover the financial
11 records of the claimant relative to those claims.
12 The party need not rely on summary assertions of
13 relevant information, on secondary source compilations
14 of data, bur rather has a right to review relevant
15 source documents.
16 That's a proposition of Florida law as a matter
17 of right of discovery.
18 I think if we can argue and decide that
19 threshold question it eliminates the need for
20 testimony concerning whether or not the Coop in
21 particular intends to use a certain species of economic
22 evidence when it makes its argument.
23 HEARING OFFICER: Well, I don't disagree. I
24 think that's what the law is. In terms of whether or
25 not the petitioners themselves are going to rely on
73
1 the document I don't think that's the test. I don't
2 think that determines whether or not those documents
3 are discoverable.
4 The key is, as I indicated before, whether
5 the issues that will be raised by the petitioners
6 place the financial condition, in other words if they're
7 going to argue the economic impact of the SWIM plan is
8 going to put them out of business and that's one
9 reason the SWIM plan should be rejected, that
10 certainly places a financial condition of the
11 petitioners at issue, and in my mind that opens the
12 door to discovery on this issue.
13 I guess what I was articulating before or
14 attempting to articulate was a question as to exactly
15 what the petitioners are going to contend at final
16 hearing, and that's what I need to have a better
17 understanding of in order to be able to resolve this
18 question, and I think that's where Mr. Green is
19 going.
20 MR. GREEN: Yes, it is, Your Honor, and at the
21 outset I would like to completely disagree with
22 Mr. Saxe's reading of Tennant. They're talking about
23 punitive damage cases where the whole case was about
24 the ability to pay.
25 Okay. That is not what a SWIM plan is that
74
1 affects southeast Florida.
2 HEARING OFFICER: But let me just say if
3 petitioners are going to come in here and claim as
4 part of this case that the SWIM plan ought to be
5 rejected, "Because it's going to put us out of
6 business," then I think the respondents or those
7 defending the plan have every right to go in and make
8 a determination as to whether that assertion is
9 indeed correct.
10 MR. GREEN: Well, Your Honor, if I could
11 proceed.
12 Before we begin with Dr. Luke I'd like to just
13 recall the context in which we find ourselves in
14 this case. The burden of proof issue hasn't been
15 resolved yet, and I would like to remind you of that.
16 HEARING OFFICER: I remember that.
17 MR. GREEN: And, Your Honor, I realize your memory
18 is probably much better than mine, and,
19 secondly, the District through the SWIM plan itself
20 has placed into issue we could contend regional
21 economic impact issues. Those are the only issues
22 we want to talk about.
23 I think there is a line here that will develop
24 that will show you where we are headed, and hopefully
25 it will be helpful to yo in resolving this.
75
1 * * * * *
2 Whereupon,
3 RONALD THOMAS LUKE
4 was called to testify and, having been first duly sworn,
5 was examined and testified as follows:
6 DIRECT EXAMINATION
7 BY MR. GREEN:
8 Q Dr. Luke, please state your name.
9 A Ronald Thomas Luke.
10 Q Dr. Luke, have you been sworn in yet?
11 A No, I haven't.
12 (WHEREUPON, DR. LUKE WAS DULY SWORN IN BY THE
13 HEARING OFFICER, AND DR. DAVIS LEFT THE HEARING ROOM.)
14 Q Where are you employed?
15 A I'm employed with Research and Planning
16 Consultants in Austin, Texas.
17 Q And what are your responsibilities with that
18 company?
19 A I am the owner of that company and its CEO.
20 Q Does that company provide a service?
21 A Yes, sir, it does. The company has been in
22 operation since 1972, and since that time has provided
23 economic/demographic/public policy market research
24 services to public and private clients.
25 It has performed a number of socioeconomic impact
76
1 assessments as well as performing economic impact and
2 damage assessments and other planning studies.
3 Q Dr. Luke, have you yourself been involved in the
4 studies you have described?
5 A Yes, sir, particularly on the major studies I've
6 been sometimes it's called the principal in charge or
7 principal investigator.
8 Q Would you please describe for Mr. Menton your
9 education, training, and background in economics?
10 A Yes, sir, I did my undergraduate work at
11 Harvard College, took my degree in the interdisciplinary
12 program of social studies, which included economics as
13 well as other types of analysis.
14 I did my graduate thesis in agricultural
15 development in East Africa.
16 I was awarded a National Science Foundation
17 Fellowship in Economics, which I used to continue my
18 studies at the Kennedy School of Management in the public
19 policy program. That program is also interdisciplinary,
20 including economics.
21 My major projects while there included an
22 economic futures study on the coast of Maine which was
23 published as part of the book, "The Study of Economic
24 Alternatives for Redevelopment of Inner City Sites," in
25 Cambridge.
77
1 While completing my dissertation I attended the
2 University of Texas Law School and concentrated in
3 administrative law and economic regulation. My dissertation
4 was an analysis of economic costs and benefits of shifting
5 from an institutional to a community model in mental health
6 care.
7 (WHEREUPON, MR. BURGESS LEFT THE HEARING ROOM.)
8 Q Dr. Luke, have you conducted work for public
9 and private clients?
10 A Yes, sir, I have. On the public side I have done
11 socioeconomic work of the U. S. Bureau of Reclamation, the
12 Corps of Engineers, the Department of Energy, Manatee
13 County, City of Denver, City of El Paso, and Mesa County,
14 Colorado.
15 Q I'd like to ask if you can identify a document
16 for me, Dr. Luke.
17 A Yes, sir, it's a professional resume for myself.
18 MR. GREEN: Your Honor, I'd like to tender
19 Dr. Luke as an expert in economic impact assessments.
20 HEARING OFFICER: Well, I don't want to get into
21 experts. I just want to get an understanding of what
22 the issues are we need to deal with and...
23 MR. GREEN: That's fine.
24 MR. NETTLETON: Mr. Hearing Officer, just for the
25 record we'd like to preserve any objections to
78
1 his qualifications, but we can proceed with his
2 testimony.
3 HEARING OFFICER: Okay, again I don't think we need
4 to get into expertise or any of that.
5 BY MR. GREEN:
6 Q Dr. Luke, what were you asked to do in this case?
7 A I have been asked to do a couple of things.
8 Initially I was asked to review the Hazen and Sawyer
9 reports, draft final reports on economic impact and
10 economic benefit of the SWIM plan, which I did, and
11 prepared comments on those reports, which I believe were
12 submitted in August.
13 I was then asked to proceed to prepare additional
14 socioeconomic analysis of the impact of the SWIM plan on
15 the Everglades Agricultural Area and the communities that
16 make it up.
17 MR. GREEN: Your Honor, for the record I'd like to
18 ask Dr. Luke to identify these two documents.
19 A The first one you have just handed me is a copy
20 of the final report evaluation of the economic impact,
21 etcetera, prepared by Hazen and Sawyer, dated July 31,
22 1992.
23 Q And this one?
24 MR. SAXE: Excuse me. Are there copies of
25 these materials?
79
1 MR. GREEN: (Handing documents to Mr. Saxe.)
2 MR. SAXE: Thank you.
3 A The second document is a copy of the comments
4 which were prepared by me regarding those two reports
5 or the draft final versions of those two reports, which
6 was completed in August of this year.
7 MR. GREEN: Your Honor, may we have these marked as
8 exhibits?
9 HEARING OFFICER: Well, again I don't think we need
10 to be taking evidence at this point. I'm just trying to
11 get an understanding of some of the issues that need to
12 be resolved for the positions of the parties with
13 respect to financial information.
14 BY MR. GREEN:
15 Q Dr. Luke, what did you, you said you reviewed
16 the Hazen and Sawyer report.
17 A You got away with my copy. Can I have it back?
18 Q To your knowledge is that the report referenced
19 in the SWIM plan?
20 A Yes, sir, it is. They were a contractor, and
21 there was an RFP, as the SWIM plan indicates, and they were
22 the successful bidder.
23 Q And what sort of study did Hazen and Sawyer do?
24 A They conducted an analysis of the current
25 economy of the Everglades Agricultural Area, and based
80
1 upon that analysis determined the primary economic factors,
2 meaning the base employment sectors for sugar cane,
3 vegetable, and sod production.
4 They then conducted an analysis of the economics
5 of those three agricultural sectors on a baseline basis,
6 meaning a status quo without the SWIM plan, and analyzed,
7 not analyzed, at least described certain alternative features
8 that might occur without the SWIM plan, such as the various
9 agricultural support programs, and they also described the
10 rest of the Everglades Agricultural Area economy, which is
11 primarily a retail and service sector.
12 Based upon that initial analysis they proceeded
13 to look at what the likely economic impact would be on
14 the primary agricultural sectors of both the BMPs, the STAs,
15 the direct removal of agricultural land, and the
16 potential assessments upon the agricultural land to finance
17 the STAs, and they did that using a methodology which is
18 called a model farm, which means than rather than looking
19 at the specific information for Farmer Jones' farm they
20 used publicly available data to define a series of
21 typical or model farms which they could associate with
22 various farms in the Everglades Agricultural Area.
23 It was possible and is possible to construct
24 such models and determine how much of the acreage they
25 may represent, because very detailed public records are
81
1 available on ownership and land use throughout the various
2 counties' Tax Appraiser's Offices on a parcel-by-parcel
3 basis.
4 Based upon that they ran a series of scenarios
5 that indicated what the likely impact of different levels
6 of assessment were in terms of acreage going out of
7 production and defined certain economic criteria as to
8 whether acres would or would not go out of production,
9 and also for defining what the likely bottom line, if you
10 will, of the farms would be and the impact upon the mills.
11 That is what I would call direct impacts as an
12 economist. In other words, looking at the direct impacts
13 of the economic sector which is most directly affected by
14 in this case the government policy but in other
15 socioeconomic assessments perhaps a change in world markets
16 and so forth.
17 They then used county level and regional level
18 multipliers, input/output multipliers, to calculate the
19 indirect and induced demand or impact I should say on
20 revenues for all jobs for Palm Beach County and for the
21 counties that make up south Florida and recorded those.
22 There are brief sections which look at issues
23 of retraining of agricultural workers that Hazen and
24 Sawyer say may be displaced by implementation of the SWIM
25 plan, certain financing mechanisms, and also what I would
82
1 call more of an annotated bibliography that reports that
2 there are certain studies that have been done in other
3 areas which for a variety of reasons have experienced an
4 economic downturn.
5 Q Are you familiar with the type of model that
6 Hazen and Sawyer utilized in the study?
7 A Yes, sir. Well, there are a couple of things
8 that could be called models. First of all, of the farm
9 level impact study they used something called the FLIPSIM,
10 F-L-I-P-S-I-M, model, which is a simulation model
11 developed at Texas A&M under contract with the USDA and
12 has been used intensively over the last 10 or 11 years
13 in analysis of policy and farm bills and this kind of
14 thing, as well as a number of studies in various states,
15 including Florida.
16 A second model they used is what is called the
17 RIMS model, which is an input/output model maintained by
18 the United States Department of Commerce, RIMS standing
19 for Regional Input/Output Modeling System, and there are
20 various tables of multipliers used for everything from
21 direct to indirect and induced.
22 Q Are you familiar with the data that the models
23 require as input?
24 A Yes, sir. I have one of the documentation
25 manuals for the FLIPSIM model, and I have also spent a
83
1 good deal of time with Dr. Richardson, one of the authors,
2 and basically what it is looking for is parameters on
3 the model farm, acreage and how the acreage is divided
4 among the crops. It's looking for some indication of
5 the yields per acre, revenue per acre for the harvested
6 crops, cost of production, taxes, debt structure, and I
7 should say assets and liabilities, and the various policy
8 programs that may be applicable to the specific crop.
9 There are variations in the model for different
10 crops or livestock.
11 Q Are those publicly available?
12 A Yes sir. I have checked, and the information
13 that is necessary to run the model for baseline conditions
14 is available from public sources. In fact, many of those
15 are sources that Hazen and Sawyer used, albeit in some
16 cases used incompletely.
17 Q Do you have an opinion concerning whether the
18 use of the models that Hazen and Sawyer utilized, together
19 with publicly available information, can produce reliable
20 estimates of economic impact on the EAA?
21 A Yes, sir, I do.
22 Q What is that opinion?
23 A My opinion is they can. I have looked, reviewed,
24 if you will, both my comments and those o