1

1 DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA

4 SUGAR CANE GROWERS COOPERATIVE OF FLORIDA, )

ROTH FARMS, INC., and WEDGEWORTH FARMS, INC., )

5 -and- )

FLORIDA SUGAR CANE LEAGUE, INC., UNITED )

6 STATES SUGAR CORPORATION, and NEW HOPE )

SOUTH, INC., )

7 -and- )

FLORIDA FRUIT AND VEGETABLE ASSOCIATION, )

8 LEWIS POPE FARMS, W.E. SCHLECHTER & SONS, )

INC., and HUNDLEY FARMS, INC., )

9 Petitioners, )

vs. ) DOAH CASE NOS.

10 ) 92-3038

SOUTH FLORIDA WATER MANAGEMENT DISTRICT, ) 92-3039

11 Respondent, ) 92-3040

and ) (Consolidated)

12 )

MICCOSUKEE TRIBE OF INDIANS, THE UNITED )

13 STATES OF AMERICA, FLORIDA DEPARTMENT OF )

ENVIRONMENTAL REGULATION, AND FLORIDA )

14 WILDLIFE ASSOCIATION, )

Intervenors. )

15 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ )

17 HEARING BEFORE: HONORABLE J. STEPHEN MENTON,

HEARING OFFICER

DATE: FRIDAY, OCTOBER 16, 1992

TIME: COMMENCED: 10:00 A.M.

20 CONCLUDED: 5:00 P.M.

21 LOCATION: HEARING ROOM 2, DESOTO BUILDING

1230 APALACHEE PARKWAY

22 TALLAHASSEE, FLORIDA

23 REPORTED BY: KIMBERLY ANN ROBERTS,

COURT REPORTER, NOTARY PUBLIC,

24 STATE OF FLORIDA AT LARGE

1 APPEARANCES: ___________

Representing Petitioners, Sugar Cane Growers

3 Cooperative of Florida, Roth Farms, Inc., and

Wedgworth Farms, Inc.:

WILLIAM P. GREEN, ESQUIRE

5 -and-

GARY PERKO, ESQUIRE

6 Hopping, Boyd, Green & Sams

123 South Calhoun Street

7 P.O. Box 6526

Tallahassee, Florida 32314

Representing Petitioners, Florida Sugar Cane

9 League, Inc., United States Sugar

Corporation, and New Hope South, Inc.:

JUDITH S. KAVANAUGH, ESQUIRE

11 -and-

RICK BURGESS, ESQUIRE

12 Peeples, Ear & Blank, P.A.

One Biscayne Tower, Suite 3636

13 Two South Biscayne Boulevard

Miami, Florida 33131

14 -and-

WILLIAM L. HYDE, ESQUIRE

15 Peeples, Earl & Blank, P.A.

Suite 350

16 215 South Monroe Street

Tallahassee, Florida 32301

Representing Petitioners, Florida Fruit and

18 Vegetable Association, Lewis Pope Farms, W.E.

Schlechter & Sons, Inc., and Hundley Farms,

19 Inc.:

20 KENNETH G. HOFFMAN, ESQUIRE

Oertel, Hoffman, Fernandez & Cole

21 Suite C

2700 Blair Stone Road

22 Tallahassee, Florida 32301

Representing Respondent, South Florida Water

2 Management District:

3 DANIEL J. McGRATH, ESQUIRE

Popham, Haik, Schnobrich & Kaufman, Ltd.

4 400 International Place

100 Southeast Second Street

5 Miami, Florida 33131

6 Representing Intervenor, The United States of

America:

SUSAN HILL PONZOLI, ESQUIRE

8 -and-

TOM A. WATTS-FITZGERALD, ESQUIRE

9 Assistant United States Attorneys

Southern District of Florida

10 Suite 627

155 South Miami Avenue

11 Miami, Florida 33130-1693

12 Representing Intervenor, Florida Department of

Environmental Regulation:

LEE M. KILLINGER, ESQUIRE

14 Assistant General Counsel

Department of Environmental Regulation

15 Twin Towers Office Building

2600 Blair Stone Road

16 Tallahassee, Florida 32399-2400

* * * * *

I N D E X

2 ITEM PAGE

3 HEARING COMMENCES . . . . . . . . . . . . . . . . . . . . 5

4 DIRECT EXAMINATION OF DR. DAVIS BY MR. BURGESS . . . . . . 30

5 VOIR DIRE EXAMINATION OF DR. DAVIS BY MR. FITZGERALD . . . 32

6 CROSS EXAMINATION OF DR. DAVIS BY MR. FITZGERALD . . . . . 78

7 REDIRECT EXAMINATION OF DR. DAVIS BY MR. BURGESS . . . . . 110

8 DIRECT EXAMINATION OF DR. DAVIS BY MR. GREEN . . . . . . . 112

9 DIRECT EXAMINATION OF DR. JONES BY MS. PONZOLI . . . . . . 175

10 CROSS EXAMINATION OF DR. JONES BY MS. KAVANAUGH . . . . . 187

11 CROSS EXAMINATION OF DR. JONES BY MR. HOFFMAN . . . . . . .206

12 CROSS EXAMINATION OF DR. JONES BY MR. GREEN . . . . . . . 212

13 CROSS EXAMINATION OF DR. JONES BY MS. KAVANAUGH . . . . . 220

14 REBUTTAL EXAMINATION OF DR. DAVIS BY MS. KAVANAUGH . . . . 227

15 CROSS EXAMINATION OF DR. DAVIS BY MS. PONZOLI . . . . . . .232

16 DIRECT EXAMINATION OF DR. DAVIS BY MR. GREEN . . . . . . . 233

17 HEARING CONCLUDES . . . . . . . . . . . . . . . . . . . . .253

18 CERTIFICATE OF REPORTER . . . . . . . . . . . . . . . . . .254

1 PROCEEDINGS

2 ( WHEREUPON, THE PROCEEDINGS COMMENCE AT 10:00 A.M.

3 AS FOLLOWS:)

4 HEARING OFFICER MENTON: Good morning. Why

5 don't we start out by taking attendance and figuring out

6 exactly who's here. Beginning with the petitioners, I

7 guess, the Sugar Cane Cooperative.

8 MR. GREEN: Mr. Menton, Gary Perko and myself, Bill

9 Green, are here representing the Cooperative, Wedgworth

10 Farms and Roth Farms.

11 HEARING OFFICER MENTON: Okay. And the League.

12 MS. KAVANAUGH: Mr. Hearing Officer, Judy Kavanaugh

13 and Rick Burgess here for the Sugar Cane League and New

14 Hope South.

15 HEARING OFFICER MENTON: All right. For the Fruit

16 and Vegetables. No attendance today. I don't see

17 anybody. Okay. For the respondents, South Florida Water

18 Management District.

19 MR. McGRATH: Mr. Hearing Officer, my name is Dan

20 McGrath. I'm here on behalf of the South Florida Water

21 Management District.

22 HEARING OFFICER MENTON: And you're new. I

23 haven't seen you.

24 MR. McGRATH: Yes, I'm from Mr. Reid's office.

25 HEARING OFFICER MENTON: And for the U.S.

1 Government.

2 MS. PONZOLI: Mr. Hearing Officer, Susan Hill

3 Ponzoli and Tom Watts-Fitzgerald for the United States.

4 HEARING OFFICER MENTON: DER.

5 MR. KILLINGER: Lee Killinger.

6 HEARING OFFICER MENTON: All right. Anybody else

7 want to state an appearance? Okay. Let me just mention a

8 couple of matters up front. As far as I think I mentioned

9 at the last hearing I was going to do an order on the

10 petition to intervene has been filed by the Sierra Club

11 and the Florida Audubon. I have drafted that order.

12 I've been out of town the last couple of weeks and it

13 hasn't gone, but it should go out either today or first

14 thing next week.

15 Likewise, I have done an order on the motion to file

16 the second amended petition, and that also will go out in

17 the next couple of days. Generally in most of the cases I

18 handle, I like to make sure there is a ruling on record on

19 every motion that is filed, but this case is not like most

20 of the cases that I've handled in the past. And I think

21 the way that this has been developing, especially with

22 regard to the discovery issues, there seemed to be

23 repeated pleadings over and over on second motions to

24 compel and responses to motions and protective orders,

25 et cetera.

1 I think the best way to handle that -- I think we're

2 making progress in all of them. I hope we're making

3 progress in all of them. I guess I'll find out in a

4 minute, but I anticipate we'll try to break them down into

5 issue and have orders entered on each of the particular

6 areas that we're addressing. That deals with the

7 financial issues we've discussed at the last hearing. I

8 know that Mr. Green has submitted a proposal. I believe

9 all the parties have until next week to file their

10 responses to the proposals and ultimately will end up with

11 an order specifically related to the discovery motions

12 that have been filed in the financial issues.

13 Likewise, I think there are separate categories

14 for the separate areas that we're dealing with on the

15 petitioner's request for access to the Park and to the

16 Refuge, which, I believe, we're going to talk a little

17 bit more about today. Ultimately, we'll end up with

18 an order that will address all of the issues raised in the

19 various motions for protective order and motions to

20 compel, et cetera, and establish the parameters for

21 entry into the park; and conversely the U.S. Government's

22 motion for entry into the EAA, and ultimately we'll end up

23 with an order specifically setting forth rulings on those

24 issues as well.

25 Just so everyone is aware as to the way that I'm

1 anticipating handling it, I do think it's important that

2 we keep the record clean in terms of amended petitions,

3 petitions to intervene, et cetera, just so the appellate

4 courts or whoever looks at this thing down the line will

5 know who the parties are and what the operative documents

6 are, and I'll try to stay on top of that. If for some

7 reason it slips through, then somebody please bring that

8 to my attention.

9 In terms of the other motions and such that are

10 filed, I think that roughly categorizes them as I

11 understand them now. If there are orders that people feel

12 need to be entered on specific areas, please make sure

13 that we express that at the hearing and I'll do my best to

14 make sure that we take care of that.

15 Having said that, are there any other areas right off

16 the bat that anybody perceives -- I mean, obviously we're

17 going to need to do an order on the burden of proof issues

18 that the parties have begun to brief. And let me say I

19 have quickly looked over last night the joint motions that

20 were filed, and the concept of joint motions is very very

21 good. So to the extent we can further that process, let's

22 see if we can approach it that way. I think it just makes

23 it a little bit easier for me to handle and keep track of

24 where we are, and I think it helps crystallize the issues

25 a little bit better as well.

1 But putting aside that issue, are there any other

2 areas that people see right now where there needs to be

3 an ordered entered so we can get on the record exactly

4 where we are in the status of the case? Okay. All right.

5 Let's try to go with that attack, with that approach. And

6 again, I wish I could enter an order on every particular

7 motion that's filed, but I don't think that's practical

8 and it's better to try to deal with them in specific areas

9 as we go along.

10 I did receive a motion for protective order that was

11 filed by the League regarding the Larson deposition. I

12 also received this morning responses from the U.S.

13 Government seeking to strike that for failure to comply

14 with requirements of the Division of Administrative

15 Hearings' rules regarding consulting with the other side.

16 It sounds like from the response that I've received that

17 that motion is essentially moot, is that correct, that --

18 MS. KAVANAUGH: I think it probably is.

19 MS. PONZOLI: I think it is, yeah.

20 HEARING OFFICER MENTON: Well, we have that on the

21 record here. I don't know that it's necessary to enter

22 a formal order to that effect. But I do think it's

23 important that the position that was expressed by the

24 U.S. Government in the response is that to the extent

25 possible I think everybody should attempt to confer

1 with all the other counsel. I know there are a lot of

2 people involved, but rather than loading down the record

3 with more motions and more responses and more this, if we

4 can resolve some of this between counsel, I think it's

5 going to save the record and copying expenses and

6 trees and all kind of things like that. So let's try to

7 do that if possible.

8 Okay. I have also received the U.S. Government's --

9 I forget exactly how it was styled, but there are general

10 terms for entry and inspection relating to the

11 petitioners' access to the Refuge and the Park, and I

12 believe that's probably the first issue we we're going to

13 deal with today; is that correct?

14 MS. PONZOLI: Well, Mr. Hearing Officer, if I

15 may, I'm beginning to feel like the forgotten second

16 child. We've been bickering over that one for two

17 and-a-half months. Truthfully, I think they're down to a

18 couple of narrow issues. They're on our property.

19 They've been on our property. I can't get past relevancy

20 in our arguments. I would really like to go first today.

21 HEARING OFFICER MENTON: Well, I was hoping to take

22 the easy one first. I do intend to address your issue and

23 we'll get to it. I guess I wanted to get an update

24 because I think at the last hearing the way we left it,

25 the way I understood it, was that Mr. Burgess and Mr.

1 Fitzgerald were going to, there was going to be a flyover

2 and they were going to get together and they were going to

3 determine that they could reach an agreement as to

4 sites and frequency, et cetera.

5 MR. FITZGERALD: And we did some of that. Mr.

6 Hearing Officer, as you remarked, we did submit a proposed

7 entry order and there were a few difficulties with that,

8 and I have reviewed a document submitted by the League,

9 which is their notice of proposed additional language --

10 HEARING OFFICER MENTON: Right. I received that this

11 morning. I just flipped through it this morning. I have

12 not had a chance to really study it in great deal. It's

13 not that long.

14 MR. FITZGERALD: Mr. Hearing Officer, it really

15 reflects the five issues that I put on the front of my

16 pleading separate from the attachment which was a proposed

17 order. In our conversations, we were able to get, I

18 think, fairly well along, but there were a few issues, a

19 couple that we discussed back on the 29th, the

20 number of stations and that sort of thing. That hasn't

21 been resolved.

22 The League was able to conduct overflights and

23 marking of some stations in Loxahatchee on the 6th, I

24 think, was through about three o'clock. The entire

25 program as they conceived it for surveillance and

1 overflight was not completed, and I had correspondence

2 with the League about identifying another day to complete

3 that overflight process. So as a result of that, I think,

4 and for other reasons they have indicated to me that they

5 still are insisting on the full number of originally

6 requested stations, both the one time and recurrent in

7 Loxahatchee.

8 The five issues we basically have are that total

9 number, the closure date for sampling efforts. You'll

10 recall from our last hearing that this was discussed and

11 it was agreed on the record by all parties, and it's in

12 the transcript because I found it, that it would close at

13 the terminus of discovery.

14 You, in fact, at that point said specifically the end

15 of February discovery in this matter under our existing

16 scheduling order, which you said you wanted to adhere to,

17 effectively closes March 1. That's germane and argued

18 because the sharing of raw data and the employment of any

19 of the results of these testing programs does

20 require a certain availability of the data before we go

21 into hearing, and in order to allow reasonable

22 interpretation of data and possibly last minute but

23 relatively short redepositions of the experts who

24 may suddenly change their minds as a result of that data

25 necessitate a fairly fixed closure date.

1 So I had originally included in our draft order

2 a February 28th, which is the last day of February

3 effectively 1 March for the conclusion of any testing

4 program, and it was indicated by the other parties that

5 they wished to readdress that.

6 The next issue that's identified as still being open

7 is the deadline for sharing of raw data resulting from

8 samples collected under the program. In one sense, this

9 may appear to be a new issue. We had discussed the

10 sharing of data and everybody had agreed since August 21st

11 that raw data would be shared. But in focusing on that

12 because of the timing problem and the problem of

13 utilization of data, it became clear to me at least that

14 unless we set some type of parameter and outside limit on

15 when you've got to get the data to the other party, a

16 party, not specifying either side or anyone in particular,

17 but if they so chose to abate somewhat or sandbag by not

18 providing the data timely, it's probably not as big an

19 issue with regard to both parties testing in Everglades

20 National Park because that's one time and that should

21 become available fairly rapidly.

22 The more difficult issue is the current one,

23 the testing in Loxahatchee. We will test our replicates

24 and the other side will test theirs. I discussed it with

25 our scientists looking for some reasonable period of time

1 in which to fix a date. As a guide, we looked at the

2 regulatory holding times for scientific samples. I think

3 we can establish this later, but I would proffer and I

4 think there is general agreement that for water samples

5 testing for phosphorus, you hold the water sample no more

6 than 28 days. That's an EPA standard which is in the

7 federal regulations. The district lab uses that and the

8 state uses that standard. It's pretty well accepted so --

9 MR. BURGESS: There is no problem with the water,

10 Tom.

11 MR. FITZGERALD: Right. So we haven't reached

12 an agreement on a 45 day from date the sample is

13 collected, not the date you send it to the lab or anything

14 else. We want the labs or any agreements reached by

15 someone contractually with a lab doing this testing for

16 them has time built into it; that they take into account

17 going to a lab and getting it done and certifying it and

18 turn this around so people can use the data.

19 We may all learn something hopefully. The

20 more difficult theory comes with soil samples and sediment

21 samples. Our experts who have been working for a

22 considerable period of time say 45 days is fine there

23 too. There are some procedures indicated in the testing

24 by the League and its compadres that can take an extended

25 period of time depending on the capability and quantity of

1 equipment in the lab. So we need to address that.

2 It's not clear to me from having reviewed what they

3 asked for why any of their tests would extend that

4 45 day period, and we propose 45 days across the board.

5 The League, in the response you looked through this

6 morning, I was out of my office yesterday, so I got it

7 this morning too, have left in their proposed language a

8 separate sentence that would address soils and sediments

9 and leaves open the number of days, and says from receipt

10 of the data from the lab.

11 Well, from receipt from the lab, it ought to be a day

12 or two. We all have faxes and quick delivery. I don't

13 know if that makes much difference. I'm more concerned

14 about the fact that picks a downstream date, if you will.

15 It doesn't key to when it's taken. Soil samples can sit

16 on the shelf more or less indefinitely, at least, in

17 comparison to the time frame of this case. We need a fast

18 turn around on this so everybody can use it and take it

19 into account on our discovery evidence.

20 An additional issue, which I identify in my pleadings

21 but does not have any reflective language in my proposed

22 draft, is the total number of one-time stations to be

23 tested in Loxahatchee. We're agreed on one-time stations

24 pretty much across the board except for one final area

25 or request. The League has looked, and it was in

1 their original entry motion, for during the first seven to

2 ten day period flying a number of historical transects and

3 having an option to land and collect data up to nine

4 stations along historical transects.

5 We objected to that precise language originally

6 because it does not specify the data and argued is

7 unjustifiable in light of the massive number of one-time

8 stations they're already establishing; and, in fact,

9 that they're talking about flying along historical

10 transects where all that data pre-exists so --

11 HEARING OFFICER MENTON: Well, I'm not sure I'm

12 following you on this one.

13 MR. FITZGERALD: They want to --

14 MR. BURGESS: I want to clear something up. It was

15 our motion to compel, but I guess they're going to go

16 first, so I can go second. I just want to make sure he

17 doesn't get to go again after.

18 HEARING OFFICER MENTON: Well, I'm just trying

19 to figure out what the issues are and what's remaining.

20 MR. FITZGERALD: I'm just highlighting the issues.

21 I'm not trying to make argument.

22 HEARING OFFICER MENTON: I don't really sense him to

23 be making arguments. I think he's just trying to set

24 forth what the issues are. And certainly if the issues

25 are not stated as you believe them to be, I'll give you

1 that opportunity, but I don't understand anything he's

2 saying right now to be argument.

3 MR. BURGESS: Okay.

4 MR. FITZGERALD: Basically in addition to what's in

5 my proposed order draft, the League wants to fly a

6 number of historical transects with the option to take

7 nine more one-time sets of data samples of some sort.

8 That was in their original entry order. We opposed it,

9 their entry request, and we opposed it in our response to

10 that.

11 Finally, we were unable to reach agreement on the

12 need to set forth the positions of the parties with

13 respect to the necessity for special use permits. In

14 Paragraph F of my proposal, which is at page three,

15 Commencement of Program, we have drafted in terms of

16 allowing the sampling program pursuant to special use

17 permits, and we would all get together within five days to

18 select commencement dates.

19 The five days we're in agreement on. However, in the

20 League's submittal they would like to add considerable

21 language which talks about the fact that they contest our

22 position and special use permits are required, and in

23 addition, that you are not ruling on those merits, but

24 that we would unilaterally issue -- they want to, I think,

25 putting it in short terms, incorporate all the discussion

1 we had at the last hearing on that subject into the order,

2 which I felt was unnecessary, so I said, you know, you're

3 ordering us or issue the permits or recognizing the whole

4 issue of permits, and more or less that's that.

5 HEARING OFFICER MENTON: Okay.

6 MR. FITZGERALD: Those are the five issues that we

7 face.

8 HEARING OFFICER MENTON: Okay. Mr. Burgess, do you

9 agree with the statement of the issues, or are there any

10 ones that you see -- it seems to me it tracks pretty

11 closely with what's in the notice of additional language

12 that you submitted; is that right?

13 MR. BURGESS: Yes, I think that's correct. I think

14 the five issues are the ones basically left for

15 resolution.

16 HEARING OFFICER MENTON: Okay. What do you

17 anticipate -- I mean, like you said, it's your motion to

18 compel. What do you foresee we need to do today? Do you

19 have witnesses you want to present to explain why you need

20 to do your overflights and all that?

21 MR. BURGESS: Yes, we do.

22 HEARING OFFICER MENTON: Okay. Mr. Fitzgerald, what

23 do you foresee? Do you have witnesses that you have

24 available that are going to testify as to your position on

25 these matters? Is that --

1 MR. FITZGERALD: I anticipate that we won't need a

2 witness, Mr. Hearing Officer. If need be, it would only

3 be for clarification of technical points, but it will be

4 extremely brief.

5 HEARING OFFICER MENTON: Okay. All right. I think

6 it's important that we get this issue done and get this

7 order completed, and I understand Ms. Ponzoli is anxious

8 to get to her issue. I guess I want to get a feel for

9 where we stand on that before we get into the specifics on

10 this one.

11 Where are we -- I obviously received the second

12 motion to compel and the supplemental motion that you

13 filed. I've also received a supplemental response from

14 the Co-op. And I forget how the League styled theirs,

15 but they filed something in addition, and the Fruit and

16 Vegetables adopted basically the position of the League

17 and the Co-op.

18 MS. PONZOLI: I approached each of the petitioners

19 following the last hearing and prior to filing my second

20 motion to compel, Mr. Hearing Officer, in an effort to see

21 if we could narrow something, if we could isolate

22 something, if we could agree on this and only fight over

23 this. To be very candid, their positions are in

24 their briefs. There is no resolution. There has been no

25 closure at any point. They simply believe that we

1 should not be in the EAA for any purpose.

2 HEARING OFFICER MENTON: Okay.

3 MS. KAVANAUGH: That is not exactly what our position

4 was, but our memorandum certainly does outline our

5 positions. We have consistently stated that we think, in

6 fact, there could be access to certain areas of the EAA

7 that would be relevant to this proceeding, but we object

8 basically to the request as it's currently couched, and I

9 think Ms. Ponzoli is correct. There appears to be no

10 movement at all on those fundamental issues that's set out

11 in the current request.

12 HEARING OFFICER MENTON: Okay. What do you

13 anticipate today, Ms. Ponzoli, with respect, or are we

14 just on a legal argument situation to resolve the legal

15 issues as to whether or not there should be access, and I

16 guess whether or not there should be an order limiting the

17 types of tests that could be conducted or the use that

18 could be put to the results of the tests?

19 MS. PONZOLI: Well, I believe that certainly the

20 legal arguments are the dominant presentation that would

21 go on today, but I have brought the research scientist

22 who essentially designed the testing program and would

23 like the opportunity to put him on the stand to explain to

24 you the various parameters that we seek to test and to

25 explain the mercury hypothesis to you; and if they want

1 an opportunity to question him, they can. I would like

2 to have the opportunity to put that on.

3 HEARING OFFICER MENTON: Okay.

4 MS. KAVANAUGH: We have Dr. Davis today who is going

5 to be testifying as to why the specific request, as

6 currently couched, is irrelevant, which is the fundamental

7 argument. I think that the legal issues may, to some

8 degree, it's sort of the cart before the horse sort of

9 thing, is obviously our fundamental position is that

10 mercury may well be an issue in the Everglades, but it's

11 not raised in this proceeding. So I guess as far as the

12 offer to explain the mercury theory from Dr. Jones, we

13 obviously would be objecting on the ground it's not raised

14 by the pleadings or the Plan itself; and therefore, we

15 don't need to hear it.

16 HEARING OFFICER MENTON: Okay. Well, I think the

17 best thing to do is to start with the access to the Refuge

18 in the park and get those issues resolved, and then once

19 we can conclude that we can come back to the second

20 matter, which is the access to the EAA; and at that time,

21 I think we can give a little bit more thought about how we

22 want to proceed on that. If the witnesses are here, then

23 we may want to put the testimony on the record.

24 But it seems to me that the fundamental issues we're

25 dealing with in that second matter with access to the EAA

1 is the legal question, at least, up front. We need to

2 resolve that conclusively and everyone has an

3 understanding as to how those legal issues are going to be

4 resolved, and then I think that may clarify what we need

5 to do with respect to the witnesses. So why don't we go

6 with the legal presentation or, at least, address some of

7 those legal issues up front on that issue.

8 Okay. Mr. Burgess, do you want to go first? I sense

9 that you wanted to be first on this.

10 MR. BURGESS: I guess as it's not only two and-a-half

11 months; it's actually been two and-a-half years if you go

12 back to predessor litigation. So, yeah, it is our motion

13 to compel, and I hope we do and finally resolve all these

14 issues this morning.

15 Similar to what Tom did, I want to both give our

16 understanding of the issues and also our argument is prior

17 to putting on our evidence. There really is nothing left

18 in dispute regarding the park entry alone, the mechanics

19 of the park entry, to the extent that issues such as

20 the terminus date of discovery, the application of

21 supplemental -- I'm sorry, special use permits and the

22 date on which data is shared, to the extent that that also

23 applies to the Park and to the Refuge, it's a generic

24 issue, but as to the mechanics of the park entry and

25 where we visit, the sampling time period, that sort of

1 thing is reflective in the filings before you. And there

2 is agreement.

3 I should say that similar to what we experienced last

4 week in the Refuge on our aerial reconnaissance some

5 things do come up; and of course, that's why we wanted to

6 do it in the first place. In the course of that

7 reconnaissance that would be unexpected, and we may

8 anticipate that would happen in the park also, I don't

9 know. We haven't conducted aerial reconnaissance there,

10 but to the extent that it does, we will try to work it

11 out. To the extent that we can't, we may be back before

12 you.

13 HEARING OFFICER MENTON: Well, as you say that, let

14 me just see if I -- to clarify what Mr. Fitzgerald said

15 earlier, where are we on the issue of completion on the

16 issue of the overflights? You said that they did one day

17 of it, but --

18 MR. FITZGERALD: Did one day and I've invited

19 them to give me a list dates they want to go back and do a

20 second date in Loxahatchee, and I have invited or extended

21 a request that they provide tentative dates that would be

22 available and convenient for them for the overflights

23 and the full testing program in the Everglades National

24 Park because --

25 HEARING OFFICER MENTON: So there is really no

1 dispute this time. You just really haven't agreed upon a

2 date for --

3 MR. BURGESS: Yeah, we started the overflight at

4 7:00 in the morning last Monday because we wanted to go

5 to sundown and try to complete it in one day, and they

6 agreed to start with us at 7:00. But their federal

7 observer had to leave at 2:30 and it coincided with the

8 refueling stop, so basically at 3:00 it ended.

9 We need to go back into the Refuge, as our witness

10 will provide, perhaps not for the full day, hopefully not

11 for the full day. We would like to go back, so that's

12 where the overflight is there. And we are attempting, I

13 just got the correspondence, I think, yesterday or the day

14 before, the invitation to the Park, and I'm working with

15 my people to set that up and conduct that overflight.

16 With respect to the Refuge, I think that the

17 majority, certainly the substantial issues have been

18 resolved. There is really two that remain from a sampling

19 standpoint. It is the number of one-time and the

20 number of monthly stations. Our program as it has

21 existed since our first filing in this matter has involved

22 a four-part program. I think it's safe to say two have

23 been resolved and two are unresolved.

24 With respect to what's resolved, there are 14

25 stations in the Loxahatchee that the SWIM Plan says will

1 be sampled on a monthly basis by the District to determine

2 water quality in the Loxahatchee. Those are the numbers

3 that are going to be used to regulate the farmers, and we

4 want to be able to sample on a monthly basis on those 14

5 stations. That's not in dispute.

6 As a result of the overflight, it may be an issue in

7 dispute as to where those stations are located because we

8 were somewhat surprised to learn that they weren't located

9 when we went out there. There is no physical structure or

10 station, and we had to locate them ourselves with long

11 coordinates. We want to be sure where we go on a monthly

12 basis as to where they're going to go pursuant to the

13 SWIM Plan. So we'll be asking to ensure that into

14 your order.

15 These 14 stations in the Loxahatchee we basically

16 have taken the north, south and east to west transects in

17 the Loxahatchee and we tried to incorporate some of those

18 14 stations on our transects. We want to be able to go in

19 one time only to 18 --

20 HEARING OFFICER MENTON: Are these the 14 stations

21 that are in the plan are you talking about?

22 MR. BURGESS: Yes, the 14 station in the plan that

23 we're going to sample on a monthly basis is not in

24 dispute. We established an east to west transect and a

25 north to south transect. We incorporated some of those 14

1 stations. We're going to go to a total of 18 stations

2 on a one-time basis. Again, that's not in dispute.

3 HEARING OFFICER MENTON: Okay. 18 in addition to

4 the 14.

5 MR. BURGESS: No, no, sir.

6 HEARING OFFICER MENTON: 14 plus 4?

7 MR. BURGESS: Actually I believe we're going to use

8 eight or nine of the 14 then add an additional eight

9 or nine to establish the 18. But what's remaining today

10 for decision basically includes two items that as I reread

11 the prior transcript I think got mixed up, and they

12 include our requests that has existed from the beginning

13 to establish six additional monthly sampling stations in

14 addition to the 14, and also a request to overfly

15 historical transects in the Refuge for purposes of

16 stopping and collecting data at nine stations on these

17 transects.

18 Now we know where the transects are from the

19 literature. We have never seen them. We were not able to

20 go there during the overflight. That's where we want to

21 go back. But I think we have a sense of where we want to

22 go on those additional transects. What I would like to do

23 is call Dr. John Davis to the stand to help us with these

24 two remaining issues.

25 HEARING OFFICER MENTON: Okay. So these -- let me

1 just ask, Mr. Fitzgerald, you essentially agree these are

2 the two issues that we have left, is that --

3 MR. FITZGERALD: There are some additional issues

4 that I think need to be dovetailed in because presumably

5 their witness needs to address it, any assertion that 45

6 days is not an adequate period of time to produce the

7 results of the testing from the date of sampling needs to

8 be addressed. Because if there is a technical basis for

9 claiming that can't be done, the witness is going to have

10 to say that. I think those three issues probably only

11 need to be addressed by a witness.

12 MR. BURGESS: The witness can address it, but just

13 as Tom said he consulted with his scientist, said 45 days

14 is a reasonable period of time, I can tell you I

15 consulted with my scientist with respect to water quality

16 data, we have no problem with that. With respect to soil

17 and sediments as I explained to him on the telephone, the

18 cesium 137 studies and lead-210 studies are not and cannot

19 physically be completed within that period of time. So we

20 either establish a longer period of time for soils

21 and sediments or those parts of soils and sediments, and

22 in any event we need to have some sort of an escape

23 language that allows a party for what we're saying right

24 now are foreseen circumstances that we know we can't get

25 it.

1 My people said they can't turn it around that fast,

2 that we can come back before you and explain the

3 circumstances. This is a two-way street. They're going

4 to be conducting, subjecting their samples also to review

5 and provide us the data and we're going to provide it to

6 them. We want to work that out, but I think there's, you

7 know, the fundamental dispute is on that time. Maybe we

8 can talk a little bit more about it and try to have some

9 sort of relief language in there. And Dr. Davis will

10 address it, but there has not been any evidence on

11 their side as to why it's sufficient.

12 HEARING OFFICER MENTON: Okay. Doctor, do you want

13 to step forth. Let me just make sure here. I'm not sure

14 I quite follow what you're saying about in addition to

15 the 18 sites that you're going to do on a monthly basis

16 that there is agreement on; is that what I understand?

17 MR. BURGESS: Not on a monthly basis, that's a

18 one-time only, initial seven to ten days.

19 HEARING OFFICER MENTON: Okay. But you're going to

20 test monthly on the 14 sites that are in the --

21 MR. BURGESS: That's right.

22 MR. FITZGERALD: And the additional nine sites on the

23 historical transects they want to do as part of one time,

24 which would run that up to 27 total one-time stations.

25 HEARING OFFICER MENTON: Okay. So we're talking

1 about nine additional one-time sites; is that right?

2 MR. FITZGERALD: Right.

3 HEARING OFFICER MENTON: Are there any monthly

4 testing sites beyond those that are set forth in the

5 plan?

6 MR. FITZGERALD: Six more that they want. Nine

7 one-time in dispute and six or however many monthly.

8 HEARING OFFICER MENTON: Okay. I just want to make

9 sure I understood where we are.

10 MR. BURGESS: That's not completely correct, but I

11 think Dr. Davis can clear it up for us.

12 HEARING OFFICER MENTON: Okay. Doctor, would you

13 raise your right hand please.

15 * * * * *

16 Whereupon,

17 DR. JOHN DAVIS

18 was called to testify and, having been first duly sworn, was

19 examined and testified as follows:

21 HEARING OFFICER MENTON: Please state your name

22 and spell your last name.

23 THE WITNESS: John Armstrong Davis, D-A-V-I-S.

1 BY MR. BURGESS:

2 Q What's your professional occupation, sir?

3 A I'm and environmental consultant.

4 Q Where did you do your undergraduate work?

5 A At the University of Mississippi.

6 Q And in what field?

7 A Had a double major in biology and chemistry.

8 Q Where did you do your graduate work?

9 A I got a masters degree from the University of

10 Mississippi for chemistry, and a PhD from Auburn University in

11 water chemistry, aquatic ecology.

12 Q Okay. Did I or a representative of my firm contact

13 you at some point and ask you to provide expert assistance with

14 respect to the issue or issues in the SWIM Plan?

15 A Yes.

16 Q And when was that done?

17 A Two to three years ago.

18 Q Okay. Have you at my direction attended public

19 workshops at the District regarding Everglades issues?

20 A Yes.

21 Q And for how long have you been doing that?

22 A A couple of years.

23 Q How many hours would you estimate you have spent

24 preparing for or attending these workshops?

25 A Hundreds.

1 Q Have you at my direction in anticipation of

2 litigation conducted sampling activities in the water

3 conservation areas of the Everglades?

4 A We've sampled in water conservation area 2A and 3A.

5 Q And what type of sampling?

6 A We've taken water samples, sediment samples,

7 biological samples, physical measurements such as water depth

8 photographs, characterized vegetation in various areas.

9 Q Are you presently a member of any public body or

10 committee investigating the Everglades issues?

11 A Yes.

12 Q And what is that?

13 A The scientific advisory group for the Everglades has

14 an acronym of SAGE.

15 Q And what is the purpose of SAGE?

16 A To provide scientific or technical input to the Board

17 of South Florida Water Management District.

18 Q How many hours do you estimate you spend in

19 connection with your work for SAGE?

20 A Probably in order of a couple hundred hours. We met

21 basically two days a month for eight to ten months.

22 Q Have you reviewed the SWIM Plan and the technical

23 appendices?

24 A Yes.

25 Q As a result of that review, are you familiar with how

1 the District intends to determine compliance with the

2 phosphorus limits and levels contained in that document?

3 A Yes.

4 Q How do they intend to do that?

5 A Basically for the Loxahatchee, they established a

6 relationship between water depth and total phosphorus in the

7 water. They then put forth a program whereby they would sample

8 the phosphorus and measure the water level at the stage station

9 at the Loxahatchee and use the model basically to predict what

10 the concentration should be at each of those 14 station, then

11 they would collect empirical data on a monthly basis and

12 average that over a 12-month rolling average to determine if

13 based on the data collected on an ongoing basis, monthly data,

14 whether or not the discharges were in compliance with the

15 limits.

16 MR. BURGESS: Your Honor, for the record, I would

17 like to tender Dr. Davis qualified to provide by reason of

18 his education and research and experience expert opinion

19 today regarding sampling activity in the Everglades.

20 MR. FITZGERALD: Voir dire, please.

22 VOIR DIRE EXAMINATION

23 BY MR. FITZGERALD:

24 Q Dr. Davis, prior to being retained by counsel for the

25 Sugar Cane League, how much of your time or percentage of

1 hours, whichever is convenient for you, did you spend

2 conducting research in the Florida Everglades?

3 A Before we were retained by any parties?

4 Q Yes.

5 A None.

6 Q And you say we, who are you referring to, you

7 mentioned just now when you said earlier we sampled in 2A 3A?

8 A My firm.

9 Q How many people in your firm?

10 A 25 to 30.

11 Q Have you conducted the field work you described, or

12 is it conducted by others and then you reviewed it?

13 A I've collected probably the majority of it.

14 Q Have you conducted a literature search and review of

15 issues related to research of water quality and water chemistry

16 characteristics in the Everglades?

17 A Yes.

18 Q Have you done the same for the EAA as defined in the

19 SWIM Plan you expressed your familiarity with?

20 A We have tried to collect the documents that we're

21 aware of.

22 Q I'm sorry. I may not have formulated the question

23 correctly. Have you done it? Have you reviewed that

24 literature?

25 A I have reviewed the documents that we have collected

1 to obtain information relative to that, yes.

2 Q And can you describe the nature of the sampling

3 program you conducted upon which you have been tendered as an

4 expert?

5 MR. BURGESS: I have not tendered him as an expert

6 with respect to any specific sampling programs, rather

7 I tried to give the Hearing Officer a flavor for the

8 activities he's conducted in the water conservation areas

9 preparatory to offering opinion with respect to the

10 proposal that's before the Hearing Officer.

11 I think that what I hear we're getting into is maybe

12 an attempt at discovery, which, I think, I clearly laid

13 out the work that he has done in the water conservation

14 areas was done at my direction and in anticipation of

15 litigation. We're not at deposition at the moment.

16 HEARING OFFICER MENTON: I don't know if it's

17 necessarily discovery, but it's sort of cross examination

18 I think --

19 MR. FITZGERALD: Respectfully, Mr. Hearing Officer,

20 counsel tendered this witness on the basis -- an expert

21 on the basis of two things, his education and training

22 and field work he has conducted. I want to know what the

23 field work is. I think that's very germane to whether he

24 is, in fact, an expert in Everglades testing. He's going

25 to present to you, based on counsel's earlier proffer, a

1 substantiation of the need for the scope of testing

2 program and what they are after.

3 HEARING OFFICER MENTON: Well, I understand, you

4 know, where you are going with it, and certainly I think

5 you have an opportunity to explore it. I think we're

6 getting maybe a little bit out of turn though. I don't

7 know at this stage -- this is not the final hearing where

8 we need to be qualifying experts, you know, and having

9 them voice final opinions, et cetera.

10 I think he's going to present his case as to why he

11 thinks they need to do testing in certain areas and the

12 locations, and you'll have an opportunity to explore that

13 on cross. But let him present his direct testimony, then

14 you can get into those areas on cross.

16 BY MR. BURGESS: (Continuing)

17 Q Dr. Davis, at my request and in anticipation of

18 litigation, did you develop a scientific testing protocol in

19 order to evaluate the SWIM Plan proposal to determine

20 compliance as you've phrased it today?

21 A My work with a team to do that, yes.

22 HEARING OFFICER MENTON: Let me just interrupt you

23 for a second. I have two questions. First, I would like

24 to go back and make sure I understand how you described

25 the method in which the SWIM Plan anticipates testing

1 compliance, then I had a little bit of a problem with the

2 way you phrased your question in terms of adopting a --

3 I'm not sure if you're asking him whether he has worked

4 with some other people to develop a methodology to

5 evaluate the compliance process.

6 MR. BURGESS: Yeah, I was about to show him what

7 our requests for entry and access, and I haven't

8 identified that, the one that's pending before you as the

9 program that he put together, together as he said

10 with some others for purposes of evaluating the

11 allegations in the SWIM Plan and the conclusions with

12 respect to the phosphorus limits and levels and how

13 they are to be determined.

14 HEARING OFFICER MENTON: Okay. Are you saying that

15 what he has put together tests the allegations of the SWIM

16 Plan generally or specifically the compliance testing in

17 the SWIM Plan?

18 MR. BURGESS: Right. We're right now concerned with

19 the compliance testing in the Loxahatchee --

20 HEARING OFFICER MENTON: I'm just not sure I

21 understood what you've asked him to undertake.

22 MR. BURGESS: There are a lot of statements in our

23 amended complaint with respect to the SWIM Plan, and

24 there are many grounds on which it's being challenged. But

25 for purposes of today, what is in dispute is the ability

1 of the petitioners to gain access to the Refuge and

2 conduct their sampling program.

3 The sampling program as I think Dr. Davis testified

4 is geared toward evaluating the methodology that the

5 respondents have chosen with respect to the 14 stations

6 and how they're going to be examined on a monthly basis

7 and what type of data they are going to receive. We would

8 like to test in the Refuge, not only test their

9 methodology, but in addition, as I think you will see when

10 we get into his testimony, test some other areas if

11 we see, in fact, the allegations contained in the

12 SWIM Plan are correct. Whether --

13 HEARING OFFICER MENTON: I'm just trying to

14 understand what you've asked him to undertake. Is it just

15 to evaluate the compliance procedures that are set forth

16 in the SWIM Plan; is that what you're saying? Is that

17 what it's limited to?

18 MS. KAVANAUGH: Can I inject myself a little bit.

19 HEARING OFFICER MENTON: Sure.

20 MS. KAVANAUGH: As I understand, he knows -- probably

21 I was the source of the confusion earlier -- he knows more

22 about these 14 stations. As I understand the 14 stations,

23 and Rick, correct me if I'm wrong, were used -- not only

24 are used for compliance, but they were also used,

25 where they not --

1 MR. FITZGERALD: I object to this. This is absurd.

2 Counsel carrying on colloquy between themselves of what

3 they understand --

4 MS. KAVANAUGH: Can I confer with him. I think I

5 understand what you want to know.

6 HEARING OFFICER MENTON: I'm just trying to make

7 sure that I'm following where we're going.

8 MS. KAVANAUGH: Right.

9 HEARING OFFICER MENTON: I prompted the question, so

10 I accept full responsibility.

11 MR. BURGESS: I think that the testimony will

12 hopefully show that the 14 stations were used for a period

13 of time, I think, last sampled back in 1984, for purposes

14 of determining the numbers that are in the SWIM Plan, and

15 again they are going to be resurrected, if you will, in

16 the future for testing programs, so it's both evaluating

17 of what they've done in the SWIM Plan and what they intend

18 to do in the future.

19 HEARING OFFICER MENTON: Okay. All right. And

20 Dr. Davis, can you explain to me one more time and go back

21 and explain your version of the compliance of testing as

22 set forth in the SWIM Plan, just to make sure that I fully

23 understand it.

24 THE WITNESS: Basically in Appendix E of the SWIM

25 Plan, they put forth an analysis that was done to

1 allegedly draw a relationship between water elevation as

2 measured in being sea level and the concentration of water

3 or phosphorus in the water at 14 stations which are

4 sprinkled over the Loxahatchee, and we have an overlay in

5 a minute to show where those are.

6 They established, they based their analysis and

7 limits on the OFW Rule which requires them arguably to use

8 baseline of what is March '78 through February of

9 '79, and the District collected some data during that

10 period. They also collected some data for a few following

11 years up to about the middle of 1983 and went through some

12 statistical manipulations to adjust that data to arguably

13 the same base period. So they used basically 16 sampling

14 events collected between 1978, early 1978 and about the

15 middle of 1983, to draw a relationship between water

16 phosphorus concentrations and stage or water elevation.

17 They developed a regression analysis to predict what

18 that would be at a given stage, then they talk about a

19 sampling program that would be started for the District

20 presumably would go out and collect samples at those 14

21 stations. They would collect that data on a monthly basis

22 and calculate, I believe, a geometric mean of that

23 phosphorus and compare it to what the model predicts. And

24 if the samples were less than what the model predicted

25 would be the appropriate baseline, then they would say

1 everything was fine.

2 If the values were higher than what the model

3 predicted, they would say we have to look at the reasons

4 why. Perhaps, we need to reassess the limits of the STA

5 or take other appropriate action to make those values come

6 into compliance with those numbers.

8 BY MR. BURGESS: (Continuing)

9 Q Let me show you what we're going to have marked as

10 Exhibit A and ask you if you can identify that document.

11 (WHEREUPON, PETITIONER'S EXHIBIT A WAS DULY MARKED

12 FOR IDENTIFICATION.)

13 A This is the original document that we complied for

14 submission to the Department of Justice requesting entry into

15 the Loxahatchee and Everglades National Park.

16 Q Did you consult with any other scientists for the

17 preparation of that document?

18 A Yes, I did.

19 Q Okay. Who was that?

20 A Dr. Mike Dennis, Dr. William Patrick, and Dr. Curtis

21 Richardson.

22 Q And what are their areas of expertise, if you know?

23 A Dr. Richardson is head of the center at Duke

24 University. He's a wetland ecologist. Dr. Bill Patrick is

25 head of the LSU Wetland Center. He's a wetland ecologist/soil

1 scientist. Dr. Mike Dennis is a botanist or plant ecologist

2 with the firm of Love, Dennis & Associates in Orlando.

3 Q Okay. And have they input in this document?

4 A Yes.

5 Q Let me direct you to page six, General Terms, where

6 you request additional areas of reconnaissance. What was the

7 --

8 MR. FITZGERALD: Mr. Hearing Officer, not to be

9 disruptive, but there is no issue of initial

10 reconnaissance.

11 HEARING OFFICER MENTON: I thought there was no

12 dispute on those issues.

13 MR. BURGESS: But I think there is with respect to

14 stations where we're requesting aerial reconnaissance to

15 establish the stations. What they're saying is you can

16 have the reconnaissance, but you can't have your stations,

17 and I'm trying to develop why the need for aerial

18 reconnaissance to establish the stations in dispute. It

19 goes to that issue.

20 HEARING OFFICER MENTON: Go ahead.

22 BY MR. BURGESS: (Continuing)

23 A Would you repeat the question.

24 Q Yes. With respect to initial aerial reconnaissance

25 referenced on page six, why did you include that as an item for

1 the program?

2 A We were told that we could not fly over the Refuge at

3 low levels and we wanted to request permission to fly over the

4 area at low levels to be able to discern the various community

5 types and the boundaries between those communities, where they

6 were, to get an idea of mixture of plant communities in the

7 area, water depth, just physical locations of things out there.

8 Q And, in fact, you did that last Monday; is that

9 correct?

10 A We spent, as you indicated earlier, approximately six

11 hours flying over it last Monday, but we were only able to

12 visit the 14 stations or actually 16 stations that were

13 identified in Appendix E of the SWIM Plan.

14 HEARING OFFICER MENTON: How do we get to 16 then?

15 THE WITNESS: There are 16 stations identified in the

16 Appendix E of the SWIM Plan. But in their analysis,

17 they determined they wanted to not use two of the 16.

18 HEARING OFFICER MENTON: Okay.

19 THE WITNESS: So they ended up using 14 stations to

20 draw the relationship we talked about, but there were

21 actually 16 stations that were sampled.

23 BY MR. BURGESS: (Continuing)

24 Q At a previous hearing in this case, Dr. Davis, there

25 was reference by counsel for one of the respondents that

1 scientists from the League had, in fact, been in the interior

2 marsh area of the Refuge. Other than last Monday, have you

3 ever been there before?

4 A I have never been in the Refuge except for last

5 Monday.

6 Q Please turn to page seven, Timing and Sampling on

7 Exhibit A --

8 HEARING OFFICER MENTON: Just so I understand it,

9 you said that last Monday in your overflight --

10 THE WITNESS: We went a week ago Monday.

11 MR. BURGESS: The 6th.

12 HEARING OFFICER MENTON: The 6th.

13 THE WITNESS: The 5th.

14 HEARING OFFICER MENTON: The overflight that you

15 did, did you say you got to all 16 sites?

16 THE WITNESS: Yes, we did get to the 16 sites, but we

17 did not get to any of the historical transects or the

18 other additional sites that we wanted to establish.

20 BY MR. BURGESS: (Continuing)

21 Q Dr. Davis, with respect to the timing and sampling on

22 page seven, how long did you contemplate the total sampling in

23 the Refuge would take?

24 A As indicated in the document, we felt that 9 to 12

25 months would be the minimum amount of time we would need to

1 collect the samples.

2 Q Is that for both soils and water?

3 A No. We felt that a one-time sampling of the soil