1
1 DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA
2
3 SUGAR CANE GROWERS COOPERATIVE OF FLORIDA, )
ROTH FARMS, INC., and WEDGWORTH FARMS, INC., )
4 -and- )
FLORIDA SUGAR CANE LEAGUE, INC., UNITED )
5 STATES SUGAR CORPORATION, and NEW HOPE )
SOUTH, INC., )
6 -and- )
FLORIDA FRUIT AND VEGETABLES ASSOCIATION, )
7 LEWIS POPE FARMS, W.E. SCHLECHTER & SONS, )
INC., and HUNDLEY FARMS, INC., )
8 Petitioners, )
)
9 vs. ) DOAH CASE NOS:
) 92-3038
10 SOUTH FLORIDA WATER MANAGEMENT DISTRICT, ) 92-3039
Respondent, ) 92-3040
11 and ) (Consolidated)
)
12 MICCOSUKEE TRIBE OF INDIANS, THE UNITED )
STATES OF AMERICA, FLORIDA DEPARTMENT OF )
13 ENVIRONMENTAL REGULATION, AND FLORIDA )
WILDLIFE ASSOCIATION, )
14 Intervenors. )
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ )
15
16
HEARING BEFORE: HONORABLE J. STEPHEN MENTON
17 HEARING OFFICER
18 DATE: FRIDAY, NOVEMBER 20, 1992
19 TIME: COMMENCED: 9:00 A.M.
CONCLUDED: 3:30 P.M.
20
LOCATION: HEARING ROOM 5, DESOTO BUILDING
21 1230 APALACHEE PARKWAY
TALLAHASSEE, FLORIDA
22
REPORTED BY: KIMBERLY ANN ROBERTS,
23 COURT REPORTER, NOTARY PUBLIC,
STATE OF FLORIDA AT LARGE
24
25
2
1 APPEARANCES:
2
Representing the Petitioners,
3 Sugar Cane Growers Cooperative of Florida,
Roth Farms, Inc., and Wedgworth Farms, Inc.:
4
WILLIAM H. GREEN, ESQUIRE
5 -and-
ROBERT P. SMITH, ESQUIRE
6 -and-
GARY PERKO, ESQUIRE
7 -and-
JONATHAN V. FOX, ESQUIRE
8 Hopping, Boyd, Green & Sams
123 South Calhoun Street
9 P.O. Box 6526
Tallahassee, Florida 32314
10
Representing the Petitioners, Florida Sugar
11 Cane League, Inc., United States Sugar
Corporation, and New Hope South, Inc.:
12
JUDITH S. KAVANAUGH, ESQUIRE
13 -and-
WILLIAM L. HYDE, ESQUIRE
14 -and-
RICK BURGESS, ESQUIRE
15 Peeples, Earl & Blank, P.A.
One Biscayne Tower, Suite 3636
16 Two South Biscayne Boulevard
Miami, Florida 33131
17
Representing Petitioners, Florida Fruit and
18 Vegetable Association, Lewis Pope Farms, W.E.
Schlechter & Sons, Inc., and Hundley Farms,
19 Inc.:
20 KENNETH F. HOFFMAN, ESQUIRE
Oertel, Hoffman, Fernandez & Cole, P.A.
21 2700 Blair Stone Road, Suite C
P.O. Box 6507
22 Tallahassee, Florida 32314
23
24
25
3
1
APPEARANCES:
2 Representing Respondent, South Florida Water
Management District:
3
R. BENJAMIN REID, ESQUIRE
4 Popham, Haik, Schnobrich & Kaufman, Ltd.
400 International Place
5 100 Southeast Second Street
Miami, Florida 33131
6
Representing Intervenor, the United States of
7 America:
8 SUSAN HILL PONZOLI, ESQUIRE
-and-
9 THOMAS A. WATTS-FITZGERALD
Assistant United States Attorneys
10 Southern District of Florida
155 South Miami Avenue, Suite 627
11 Miami, Florida 33130-1693
-and-
12 GEOFFREY GARVER, ESQUIRE
U.S. Department of Justice
13 General Litigation Section
P.O. Box 663
14 Washington, D.C. 20044-0663
15 Representing Intervenor, Florida Department of
Environmental Regulation:
16
TIM SMITH, ESQUIRE
17 -and-
LEE KILLINGER, ESQUIRE
18 Department of Environmental Regulation
Twin Towers Office Building
19 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
20
Representing Intervenor, Florida Wildlife
21 Federation:
22 DAVID G. GUEST, ESQUIRE
111 South Martin Luther King, Jr.,
23 Blvd.
P.O. Box 1329
24 Tallahassee, Florida 32302
25 * * * * *
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1
I N D E X
2 ITEM PAGE
3 Hearing Commences . . . . . . . . . . . . . . . . . . . . . . 6
4 WITNESS: DR. DENNIS
Direct Examination by Mr. Burgess . . . . ... . 71
5 Cross Examination by Mr. Fitzgerald . . . . . 95
6 WITNESS: DR. MAFFEI
Direct Examination by Mr. Fitzgerald . . …… . . 108
7 Cross Examination by Mr. Burgess . . . . . . . . . . 120
Redirect Examination by Mr. Fitzgerald . . . . . . . 128
8 Hearing Concludes . . . . . . . . . . . . . . . . . . . . . 217
9 Certificate of Reporter . . . . . . . . . . . . . . . . . . 218
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E X H I B I T S
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ITEM DESCRIPTION PAGE
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Petitioner's Exhibit D Richardson Report 85
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Petitioner's Exhibit A Short Version Video Tape 216
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Petitioner's Exhibit B Full Version Video Tape 216
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1 PROCEEDINGS
2 (WHEREUPON, THE HEARING COMMENCES AT 9:00 A.M. AS
3 FOLLOWS:)
4 HEARING OFFICER MENTON: All right. Let's start
5 with taking roll call again. Beginning with the
6 petitioners, the Co-op.
7 MR. GREEN: Mr. Menton, my partner Bob Smith and I
8 are here on behalf of the Cooperative, Roth Farms and
9 Wedgworth Farms.
10 MR. R. SMITH: And Jonathan Fox, our associate.
11 HEARING OFFICER MENTON: Okay. He's a new one.
12 All right. For the League.
13 MS. KAVANAUGH: Judith Kavanaugh and my partner Bill
14 Hyde was here, and also Rick Burgess will be here.
15 HEARING OFFICER MENTON: All right. For the Fruit
16 and Vegetables.
17 MR. HOFFMAN: Yes. Ken Hoffman without anybody.
18 HEARING OFFICER MENTON: All right. For the
19 District.
20 MR. REID: Ben Reid with Popham Haik.
21 HEARING OFFICER MENTON: All right. For the U.S.
22 Government.
23 MS. PONZOLI: Susan Hill Ponzoli. I have with me Mr.
24 Tom Watts-Fitzgerald and Geoff Garver.
25 HEARING OFFICER MENTON: All right. For DER.
7
1 MR. T. SMITH: Tim Smith, and with me I have Lee
2 Killinger.
3 HEARING OFFICER MENTON: Okay. Mr. Guest.
4 MR. GUEST: David Guest for the conservation
5 interests.
6 HEARING OFFICER MENTON: All right. Anybody else?
7 MR. GREEN: Mr. Menton, Gary Perko also.
8 HEARING OFFICER MENTON: Okay. We have a lot of
9 things to talk about today it looks like. I guess, let's
10 start out with some of the leftovers from last time. On
11 the access matters, I've received the proposed entry order
12 that was submitted by the U.S. Government on November
13 9th.
14 As I gather from reading that proposed order, most of
15 the issues have been resolved except for a couple minor
16 matters regarding the possibility of having to supplement
17 the order and maybe some additional sites; is that
18 correct, Mr. Fitzgerald?
19 MR. FITZGERALD: I think that's essentially correct,
20 Mr. Hearing Officer, although, I don't know if it's
21 accurate to more than double the access as simply saying
22 that's supplementing. In the correspondence between
23 counsel, I think it was agreed that issue would be
24 addressed today in the hearing. Mr. Burgess and I had
25 correspondence and discussions regarding that.
8
1 MS. KAVANAUGH: Mr. Burgess called me last night. I
2 know he's somewhere in Tallahassee. I don't know
3 where he is now. He knew the hearing was to begin. If we
4 could perhaps delay that, I would appreciate that.
5 HEARING OFFICER MENTON: All right. So --
6 MR. FITZGERALD: Just as long as the record is clear
7 that we're postponing the entry at the request of the
8 League.
9 MS. KAVANAUGH: For an hour.
10 MR. FITZGERALD: An hour.
11 HEARING OFFICER MENTON: Let me just make sure I
12 understand. The issues regarding whether or not it can be
13 modified by future order, I mean that's no big deal. I
14 think it's clear it can always be modified by a
15 supplemental order on appropriate motion if necessary.
16 But there is still some problem in terms of
17 sites along certain transects; is that right?
18 MR. FITZGERALD: If you'll recall from our last
19 hearing, and I reviewed the transcripts of what was said
20 by Dr. Davis and by Mr. Burgess, the decision was rendered
21 after all the evidence and interplayed that access would
22 be permitted by air boat and air craft for surveillance
23 overflight of various areas including particular
24 transects.
25 If you recall from the exhibit that was put up during
9
1 the hearing, the transect identified as Transect C, it
2 would run from the canal north from the southern end of
3 the Refuge to go approximately a half mile to a mile
4 beyond the dense cattail stand. It's my understanding
5 that overflight was done then as well as they went in by
6 air boat because they wanted to dip stick the water
7 depth and pick sites.
8 They came back and proposed nine sites along a
9 transect, but when they returned and when it was discussed
10 with me by counsel for the League, the transect they had
11 identified in the hearing was no longer in the transect
12 they wanted. They wanted to move it some distance away
13 but running roughly the same distance and parallel for
14 reasons that were not explained to me.
15 HEARING OFFICER MENTON: Okay. Well, it's not
16 fair to go on if Mr. Burgess is not here to respond, so
17 let's just put it off. I thought we resolved most of
18 those issues and --
19 MR. FITZGERALD: Now they're also asking as part of
20 that same thing in the same correspondence for five more
21 transects with nine more sites per transect for an
22 additional 45 sites.
23 MS. KAVANAUGH: I haven't seen the correspondence. I
24 know nothing --
25 HEARING OFFICER MENTON: Let's wait until Mr. Burgess
10
1 gets here. We need to get that one resolved today. The
2 next one, the U.S. entry into the EAA, I have received a
3 proposed order that was submitted by the petitioners, then
4 I received a proposal from the U.S. Government, and also
5 received a response from DER to the petitioners' proposed
6 order.
7 I've got a little bit of a problem. In my attempt to
8 get organized here, I set up everything for my secretary
9 to try to organize while I was out of town last
10 week. I came back and I have not been able to locate the
11 proposal that was submitted by the petitioners. I
12 apologize for that, and so I've been working in a little
13 bit of a vacuum on that. I need to get another copy.
14 I know it was filed at one point. I think it just
15 got attached to something and I have not been able to
16 locate what it was attached to at this time.
17 MS. KAVANAUGH: I don't know if I have one with me,
18 but if I don't, I'll get one to you. I would say that we
19 appear to be getting very close --
20 HEARING OFFICER MENTON: Okay.
21 MS. KAVANAUGH: -- to closure, I think, on the access
22 into the EAA. As far as I know we don't have, other than
23 the issues that were raised about using the information
24 and the protective order issues, as far as the actual
25 mechanics of it, I think Ms. Ponzoli may be feeling
11
1 differently, but I feel that after this week, we may be
2 close.
3 HEARING OFFICER MENTON: Ms. Ponzoli.
4 MS. PONZOLI: Well, I actually agree. I was offered
5 seven more sites last night by Ms. Kavanaugh's firm; of
6 course, they retracted two of their former
7 sites, and I have been offered prior to this hearing
8 several by Mr. Green, and I just haven't had an
9 opportunity for Mr. Hoffman and me to match his maps and
10 my map.
11 What I would like to ask is that we have a -- counsel
12 have agreed in the last several days to meet on December
13 the 4th to resolve hopefully a global deposition plan and
14 other discovery issues. I would like to finalize, at
15 least, the problems regarding the entry separate and apart
16 from the protective order, which is really in your hands
17 at this point, and have commitment to final resolution by
18 December 18th hearing so we could begin our entry the
19 beginning of January.
20 I think with the Thanksgiving holiday and the
21 Christmas holiday and the Christmas break, the fact that
22 we will be entering multiple land owners' land, it
23 probably will take a month to get all of those little
24 procedures laid in place.
25 MS. KAVANAUGH: We have not discussed this, but we
12
1 would have no problem with that at all. That's fine.
2 HEARING OFFICER MENTON: Okay. So really the only
3 outstanding issue is to deal with this protective order
4 aspect of it and just needs to be done before we begin the
5 entry which would be not until January; is that right?
6 MS. PONZOLI: Yes, sir.
7 MS. KAVANAUGH: I guess I would like to suggest just
8 as we're trying to do Park entry that maybe we can get
9 one omnibus order that covers everything we've discussed
10 and agreed to orally as well as any protective conditions
11 ultimately.
12 MS. PONZOLI: I think that's fine.
13 MS. KAVANAUGH: That we all have it in our hands.
14 HEARING OFFICER MENTON: All right. And --
15 MS. KAVANAUGH: We can do that December 4th outside
16 that process but by December 18th.
17 HEARING OFFICER MENTON: Okay. So you can
18 negotiate that and bring that up and tell me where you are
19 at the next hearing.
20 MS. PONZOLI: That's right. And if there are
21 any remaining issues as to protective order, I would ask
22 you to allow us to argue at that time and to seek
23 an immediate ruling.
24 HEARING OFFICER MENTON: All right. I will try to
25 make sure that I get that order out before the next
13
1 hearing so everyone will know exactly where I stand on
2 that so that will give us opportunity to talk about that
3 before the actual entry begins. All right. Is it the
4 18th or 19th that hearing?
5 MS. PONZOLI: I think it's the 18th.
6 MS. KAVANAUGH: I'll take a look and see.
7 MS. PONZOLI: My calendar says Friday the 18th.
8 MR. FITZGERALD: Christmas is a Friday, so it has to
9 be the 18th.
10 HEARING OFFICER MENTON: Okay. I saw that Mr.
11 Burgess did walk in, so why don't we go back and see if
12 we can resolve this other entry issue.
13 MR. FITZGERALD: Mr. Menton, we also have a witness
14 enroute by air and won't get here approximately until
15 9:30. It would be advantageous to put him off for the
16 hour previously requested.
17 HEARING OFFICER MENTON: Okay.
18 MS. KAVANAUGH: Let the record reflect we weren't
19 requesting an hour.
20 MR. FITZGERALD: The record will, of course,
21 reflect what the record reflects.
22 HEARING OFFICER MENTON: All right. Mr. Burgess,
23 Mr. Fitzgerald indicates that they need to have
24 their witness present before we get into those issues so
25 let's postpone that once again.
14
1 The other remaining issues, the financial
2 information, I promised to do that short order on the
3 financial stuff. The crunch of discovery has put me
4 behind on that. That will go out in the next couple of
5 days.
6 MR. GUEST: A related question, Mr. Hearing Officer,
7 is the due date for the economic memorandum. A pending
8 motion we filed yesterday, a joint motion by the
9 respondent intervenors -- respondents and intervenors
10 seeking extension for a few days because the lawyers have
11 all been caught up in discovery.
12 HEARING OFFICER MENTON: Okay. I have not
13 received that motion. As I recall from the last
14 hearing, what did we say, November 20th today, for the
15 first round then December 4th for the second.
16 MR. GUEST: Here's a copy of that. It's only a half
17 page long.
18 HEARING OFFICER MENTON: Okay.
19 Mr. GUEST: Thank you.
20 HEARING OFFICER MENTON: All right. What's the
21 position of the parties? Do you need additional time?
22 MS. KAVANAUGH: We would do whatever counsel wants to
23 do.
24 MR. GREEN: Mr. Menton, our understanding is that
25 it would be helpful to the respondents to coordinate
15
1 their effort, particularly the federal government, and in
2 light of that, we would not oppose that and grant
3 until next Wednesday.
4 HEARING OFFICER MENTON: Is that what you're looking
5 for until next Wednesday to file the initial one?
6 MR. GUEST: Right, with the reply on the 11th.
7 HEARING OFFICER MENTON: All right. That's fine
8 with me. So why don't we do that?
9 MR. GREEN: Those are joint filing dates.
10 HEARING OFFICER MENTON: Joint, simultaneous filing
11 in both instances for the original brief and the reply.
12 That's what, November --
13 MR. GREEN: 25th.
14 HEARING OFFICER MENTON: The reply December 11th, so
15 that will give me a week before the hearing to review.
16 Okay. I think that resolves the issues that were
17 outstanding from the last hearing; is that right? Any
18 remaining ones except with Mr. Burgess we have to come
19 back to?
20 Okay. The next issue, I guess, is to get into the
21 discovery disputes. Let me make some preliminary
22 comments in this regard. Just from my own experience
23 one of the biggest frustrations I had in private practice
24 was to feel that I was getting jerked around in a
25 discovery dispute and to go through the motions of filing
16
1 an appropriate discovery motion to compel then walk
2 into a hearing and kind of have a judge look at me with a
3 blank stare on his face and not really grasp the essence
4 of what's going on.
5 One of the biggest revelations I've had as a hearing
6 officer is that it is virtually impossible to sit
7 here and listen to everybody go back and forth, he told me
8 this and he told me that and he told me this, and try to
9 figure out who the good guy is and who the bad guy is.
10 It is a lot more difficult than I had expected it to be.
11 So as a result, I have made a couple of determinations.
12 Number One, the amount of paper that is filed on
13 behalf of a party in connection with the discovery dispute
14 and the volume with which he argues his position at a
15 hearing bears no direct relationship at all to the merits
16 of his position. So, you know, I don't want to get into
17 one of these, well, you told me this and he told me that
18 and you told me this. I just don't think that's
19 productive and I don't have the patience to sit here and
20 go through it. There are a couple guiding fundamentals
21 that we're going to have to work within the scope of this
22 hearing, and I think everybody needs to keep those in
23 mind.
24 Number One and one that weights heavily on me, and
25 I'll tell you I think it's important I have to keep in
17
1 mind the statute requires this to be an expedited
2 proceeding, and that I think is going to in and of itself
3 set some of the parameters for discovery in this case.
4 I think everybody needs to have a reasonable opportunity
5 to conduct discovery. I do not think that means that
6 everybody has to depose every witness that's listed
7 or potential witness that's listed.
8 I'm going to do my best to ensure that everybody has
9 a reasonable opportunity, but the fact that you have not
10 deposed every witness on the other party's witness
11 list is not necessarily going to be conclusive to me as to
12 whether or not you've had a reasonable opportunity for
13 discovery. I think given the framework that we've been
14 put in as an expedited proceeding, all parties are
15 obligated to prioritize their discovery needs and to
16 recognize the priorities that the other parties are
17 necessarily going to have.
18 In that regard, you know, there are certain
19 principles that I think are pretty self-evident. If a
20 witness is listed on another party's witness list, that's
21 a priority item. I think those witnesses ought to be,
22 efforts ought to be made to ensure those witnesses are
23 available and that they're available as early on in the
24 process as is practicable.
25 I don't at this point -- I've reviewed the motion
18
1 from the petitioners for relief from the discovery order,
2 I'm going to deny that motion. I do not want to get
3 into a free for all discovery proceeding. If it mandates
4 more active involvement on my part, then I will undertake
5 that role. I think it's more important to keep some order
6 to the process, and if we have to have a hearing
7 every Monday morning to review the discovery schedule,
8 then we will do it. I don't want to do it, and I probably
9 will not be in a very good mood on Monday mornings if we
10 get to that point, but we will do it.
11 I think I heard some reference just a minute ago
12 that there is going to be a meeting over the possibility
13 of setting up a global discovery schedule and maybe you
14 can bring me up to speed as to what's going on.
15 MS. KAVANAUGH: If I may, we were going to offer to
16 defer the motion for relief from the discovery order until
17 after this counsel meeting, which all parties finally
18 agreed to simply because we feel once we sit down with
19 each other and go over how many witnesses there really
20 are, we have some other problems because of our inability
21 to get answers to certain interrogatories, which is
22 subject to another motion before you today, but
23 assuming we can all sit down and figure out how many
24 witnesses there are and with some reasonable
25 considerations like how many depositions can be conducted
19
1 on a given day, the counsel constraints, the staffing
2 constraints from the agency's viewpoint as well as expert
3 witnesses attending, then we can come back hopefully on
4 the 18th with a proposal for a revised discovery
5 schedule.
6 We have no objection to the structure of discovery.
7 Our problem is we are feeling, as indicated in our motion,
8 very thwarted in our ability to get the discovery as
9 petitioners -- that we need at the beginning in order to
10 determine whether we do need all these witnesses or not.
11 We don't know yet. We are trying keep it up front in an
12 expedited process. We're willing to try to work in the
13 expedited process, but it just has been unmanageable for
14 us so far.
15 We had intended to ask you to defer ruling on this
16 motion until we could all meet and try to come up with a
17 joint proposal to you.
18 HEARING OFFICER MENTON: All right. I just think
19 that going back to discovery in a free for all fashion is
20 recipe for disaster.
21 MS. KAVANAUGH: We agree, but we're desperate.
22 HEARING OFFICER MENTON: Okay. So at this point
23 let's try to see if we can reach some agreement on the
24 global and see where we are on that. There were a couple
25 of other issues that came up in reading the various
20
1 motions that the parties filed. One was it seems to be
2 that there is an informal arrangement taking place in some
3 instances where one of the aligned parties is handling,
4 you know, a particular witness, and I know in at least
5 one circumstance where there were cross notices for
6 depositions that were not coordinated between the other
7 parties.
8 It would seem to me the parties should be able to
9 reach an agreement amongst themselves that one of the
10 aligned parties will be primarily responsible for
11 scheduling the deposition of their witnesses with one
12 of the aligned parties on the other side. I think that
13 would help alleviate a lot of the problems. And I
14 don't know to what extent that's being done currently, but
15 I think that's one issue that you really ought to try to
16 reach some consensus on.
17 There was also a reference in some of the pleadings
18 to the circuit court action that's pending and some of the
19 discovery that's going in on there. That raised a
20 question in my mind as to what extent there is or should
21 be coordination between discovery and some of the related
22 proceedings and this proceeding. I have no idea what's
23 going on in those other cases, and maybe someone needs to
24 bring me up to speed on that, and whether it is possible
25 to try to coordinate on that.
21
1 MR. REID: Yes, sir. There are several other
2 proceedings going on. The one, I guess, sort of popped up
3 recently is what we refer to as the Sunshine lawsuit.
4 That was a suit filed by the League against the state
5 parties alleging that settlement negotiations and the
6 consent decree and so forth which results from that
7 should have been done in Sunshine and is a violation of
8 state law.
9 There were other counts which claim that the state
10 parties had violated the rights of the farmers,
11 their constitutional rights to buy and somehow prejudicing
12 this proceeding that we're in now, the administrative
13 process, by reaching the consent decree and the settlement
14 agreement. The first -- the latter part of that, I just
15 mentioned the claim of rights, state rights being
16 violated, that was dismissed, a summary judgment was
17 granted in favor of the state parties.
18 We're left with the violation of the Sunshine. In
19 that case, we have a list of about 25 deponents, I think.
20 I don't remember the exact number. The same -- a lot of
21 the same people. They're going to be deposed in this
22 case, I assume. Tommy Vickers is one that comes to
23 mind. He's the Deputy Administrator of the District.
24 You know two days ago I was in a deposition of the
25 former general counsel where there was, you know, for
22
1 eight hours he was asked about the settlement discussions,
2 the science they talked about, a lot of the same issues,
3 so, in fact, there is a great deal of discovery just in
4 that one case. There is also I might add a series of
5 public records requests going on outside of this
6 proceeding to in large part get some of the same types of
7 materials as there has been going on before this process
8 started.
9 We are strapped and we haven't decided what to do
10 about it yet. It's interesting you raise it today because
11 certainly it makes a difference, and I'm not sure
12 where to go for relief at this point, whether it's
13 here or there or somewhere else, and we're considering
14 that. But, yeah, there is a great deal of what is just
15 clearly got to be -- and when we get into the issue today
16 on the settlement agreement discussion some of this will
17 become relevant because in addition to that Sunshine case
18 there was another case in the state court. There are
19 cases in two or three of the appellate courts around the
20 state all dealing with similar or related issues one
21 way or the other.
22 I'll discuss that more fully when we talk about the
23 settlement issues, that's the subject of our motion today.
24 But you're right, there are a lot of other types of
25 information being sought in other --
23
1 HEARING OFFICER MENTON: Are the parties the same?
2 MR. REID: Generally speaking.
3 MR. R. SMITH: No, sir, and the issues are not the
4 same.
5 MR. REID: Well, the Sugar Cane League --
6 MR. R. SMITH: It's perfectly reckless to make the
7 representation --
8 MR. REID: Well, I can get -- I said generally
9 they're the same. His clients, I have to go and check if
10 he has the same farmers list, the Sugar Cane League is a
11 party. My client is in a lot of the cases, but we're the
12 same party; the Department of Environmental Regulation is
13 in the case, and they're the same party. The claim for --
14 I have to go back and check who made the demand for
15 administrative hearing. I think it's fair to say that the
16 parties are generally the same.
17 Now maybe we don't have the exact farmers and
18 individual parties, but --
19 HEARING OFFICER MENTON: Well, I guess --
20 MR. REID: -- it's the same group of lawyers that you
21 see here. Now maybe they have a different hat on, but
22 the Sugar Cane League is the Sugar Cane League, and Ms.
23 Kavanaugh and I argued the motion for summary judgment in
24 front of Judge Davey --
25 MS. KAVANAUGH: It was a motion to dismiss.
24
1 MR. REID: I'm sorry, I beg your pardon. It was a
2 motion to dismiss. And Mr. Smith and I argued the other
3 ones, so I don't think it's reckless to say that the
4 parties are generally the same, and I'll be happy to get
5 out all the captions and --
6 HEARING OFFICER MENTON: Well, I'm not sure how
7 significant it is, but the issue came up in my mind when I
8 saw references that there were a number of depositions
9 being conducted and to the extent there are witnesses that
10 are common, that there are attorneys that are common, I
11 don't see why you can't cross notice depositions in those
12 cases if a witness has to appear at that time.
13 What I'm suggesting is that there should be some
14 efforts to coordinate the discovery to the extent that
15 there are common witnesses.
16 MS. KAVANAUGH: We're willing to cooperate in that.
17 But one thing I would like to point out is there are
18 two, two -- three errors in what Mr. Reid said.
19 First of all, the other counts in the Sunshine case
20 has not been right because Judge Davey ruled that the
21 series of administrative proceedings which would have
22 addressed the agency decisions embodied in the settlement
23 agreement would to some degree cure some of those claims.
24 However, he left -- he specifically said, if there were
25 problems, come back to him, so let's correct that record.
25
1 The second thing I want to --
2 MR. REID: I didn't say what the basis of --
3 MS. KAVANAUGH: If I can just finish. I did not
4 interrupt you.
5 MR. REID: I apologize.
6 MS. KAVANAUGH: In the public records cases, we
7 attempted, we attempted to coordinate discovery, but we
8 were told that we were only going to be allowed to depose
9 the witnesses on the issues in that specific proceeding.
10 So if the parties, the agency positions have changed,
11 that's great, and I think your suggestion that we try and
12 cross notice where we can, that we do that. The United
13 States was not a party to these proceedings.
14 Then finally on the public records question, sir, I
15 would say that the League is making public records
16 requests and we have set up a procedure with the District
17 that's not working too well, but we're trying, where if
18 they say they can do something, as in public records, all
19 they have to do is tell us that so they don't have to
20 duplicate document production. We don't need all that
21 paper either. We are trying to work with them, but as you
22 can see this atmosphere has gotten somewhat acrimonious.
23 I think the counsel meeting we finally agreed to
24 have, at one point we said we'll lock ourselves in a room
25 for two days, hopefully we can work out a more coordinated
26
1 discovery plan so that no one's resources are stretched
2 unnecessarily and we can't expedite the proceedings.
3 So we would certainly agree to try to coordinate these
4 efforts to -- so that duplicity and redundancy, that's not
5 needed.
6 HEARING OFFICER MENTON: Okay.
7 MS. PONZOLI: May I be heard on this?
8 HEARING OFFICER MENTON: Yes.
9 MS. PONZOLI: In regards to the Sunshine lawsuit,
10 which the United States is not a party to, I want to make
11 it very clear to you that the witness list that the
12 Florida Sugar Cane League has sent to the District
13 includes six federal employees, two of them are my
14 principal scientists, one for the Refuge and one for
15 Everglades National Park, and one for the Park is head of
16 the research center.
17 In addition to those two principal scientists, my
18 deposition is noticed, the Deputy Chief of General
19 Litigation for the Lands Division in Washington is
20 noticed, a former United States Attorney is noticed, and a
21 Deputy Assistant Attorney General for the Lands Division
22 is noticed. In that Sunshine lawsuit, the United States
23 will assert that the people who seek our depositions have
24 to go through the CFR, the regulations for doing a federal
25 deposition and meet those requirements; and if they do
27
1 that and it's appropriate, then depositions can be taken
2 of federal employees for the specific purposes that
3 meet the CFR and are appropriate to that litigation alone.
4 In this litigation, unfortunately -- and I do not
5 have a list exactly here. I think I do have them
6 her, I can refer to them. But my memory serves me that
7 either all four of those attorneys or at least three of
8 those attorneys that I just finished naming have
9 once more been named as witnesses.
10 Now I have to be very candid with you, I'm unfamiliar
11 with taking a litigating attorney's deposition in the
12 middle of current litigation where the parties are facing
13 one another in a courtroom, so I believe it is highly
14 likely that those depositions vis-a-vis this litigation
15 will never take place. So just so you understand what my
16 bottom line position is when I think you -- in a sense of
17 expediting things, let's just put them altogether. From
18 the federal prospective, that's not an appropriate
19 resolution.
20 We do not believe they should be put together. If
21 they have a right to do those depositions in the Sunshine
22 lawsuit, then those depositions will go forward in that
23 lawsuit, but here I do not think that's an appropriate
24 thing to be done, and I would argue against it when that
25 time comes when, in fact, they move forward to do that.
28
1 HEARING OFFICER MENTON: Okay. Well, I'm not sure
2 I'm understanding your position. If we're talking about
3 your expert witnesses; is that what you're saying?
4 MS. PONZOLI: No, I'm not talking about the expert
5 witnesses. I'm speaking particularly of the attorneys.
6 HEARING OFFICER MENTON: Okay. Well, I would not
7 image that they would try to notice you for deposition in
8 this case.
9 MS. PONZOLI: They have listed me as a witness.
10 HEARING OFFICER MENTON: In this case?
11 MS. PONZOLI: The League and the Co-op, yes, sir.
12 MS. KAVANAUGH: Mr. Hearing Officer, if I may, I
13 thought that -- we'll be getting this on a motion to
14 strike, but a fundamental part of our case is that this
15 SWIM Plan is not the result of the statutory process.
16 It's the result of secretly negotiated settlement and
17 those that participate in the committee that secretly
18 negotiated the settlement agreement we want to depose, and
19 obviously at that time you will have to make --
20 HEARING OFFICER MENTON: Well, we're getting ahead
21 of ourselves and --
22 MS. KAVANAUGH: I understand that, exactly. And --
23 HEARING OFFICER MENTON: You're going to have to
24 give me some good case law as to your right to take
25 a deposition --
29
1 MR. R. SMITH: How about if I give you some evidence
2 this morning?
3 HEARING OFFICER MENTON: Well, we'll get to the
4 federal issues in just a little bit, but let's see if we
5 can coordinate on getting some of these discovery issues
6 resolved. I think --
7 MR. R. SMITH: I have not spoken to that, Mr. Hearing
8 Officer, but I agree that at the proper time that we
9 ought to thoroughly investigate whether the federal
10 lawyers who have been running this thing are immune
11 from discovery in this proceeding to which they have
12 invited themselves in which the issue is whether they in
13 another proceeding have coerced the state agencies
14 into taking the positions that they are now trying to firm
15 up.
16 HEARING OFFICER MENTON: Okay. I think we're
17 getting ahead of ourselves. That issue is not before me
18 today, and if it comes before me, then we'll talk about it
19 at that point. Again, I think the issues related to the
20 federal litigation are probably going to be the most hotly
21 argued so I was going to defer that to the last issue of
22 the day and see if we can just make some progress on
23 some of these other issues first before we begin to
24 degenerate here.
25 Let me -- I'm not sure how many of these pending
30
1 discovery motions are still pending. I have made some
2 notes on a couple of them and see if we can resolve some
3 of these on a relatively quick basis. I think with
4 respect to the motion for relief from the stipulated
5 discovery procedure, we have already discussed that. At
6 least at this time, I'm going to deny it. If there comes
7 a point where you want to renew it, then go ahead and do
8 that. But I am going to deny that.
9 There was a -- South Florida Water Management
10 District filed a motion to reschedule the deposition of
11 Waylin on December 9th. I understand that's moot; is that
12 correct? Has there been some agreement reached on that?
13 MR. REID: Correct.
14 HEARING OFFICER MENTON: So that one -- we have
15 two down. That's pretty good. All right. There was a
16 motion to appoint commissioners that was filed by the
17 League with respect to two depositions, one in North
18 Carolina and one in Georgia.
19 I gathered from reading those motions that North
20 Carolina has not adopted the Uniform Form Depositions Act
21 but Georgia has. As I understand it, it has been a while
22 since I looked at it, but as I understand the Uniform Form
23 Depositions Act and the whole need to appoint a
24 commissioner is pertinent with respect to compelling the
25 attendance of the witnesses, not necessarily for whether
31
1 or not whether the deposition is admissible or otherwise
2 proper.
3 I don't know where we are in terms of -- I thought
4 there was an understanding that the parties to the extent
5 that they can control witnesses would arrange for the
6 attendance of the witness without the need to go
7 through subpoenas, and I would assume that also applies
8 for the need to get a commissioner appointed, et cetera.
9 It may be that these witnesses are not employed and that,
10 therefore, we have to go through that, so --
11 MS. KAVANAUGH: Exactly. That's --
12 HEARING OFFICER MENTON: Okay. Well, I have those
13 orders, the order to issue the commission should be typed
14 up and ready to go hopefully by Monday and you can just
15 check with my secretary about picking those up. But I do
16 think that, you know, on this issue to the extent that
17 witnesses are within the control of the parties, then I
18 think that the order that we've entered requires the
19 parties to coordinate their attendance without the need
20 for subpoenas and appointed commissioners, et cetera.
21 MS. PONZOLI: In that vein, the depositions I have
22 taken under subpoena with the North Carolina
23 court reporter, I assume there will be no objection to
24 their admissibility. I did not get a commissioner
25 appointed.
32
1 HEARING OFFICER MENTON: I don't -- again, I think
2 that the need for commissioner is simply for the
3 attendance of the witness. I don't think it has to be --
4 MS. KAVANAUGH: As I say, they showed up.
5 HEARING OFFICER MENTON: I think that's really all
6 that's relevant. All right. Next was -- I'm trying to do
7 these in descending order of ease here.
8 The motion for leave to amended response to the first
9 request for production that was filed by Fruit and
10 Vegetable Growers and the response that was filed by the
11 U.S., this goes back to last month. At this point, I
12 don't think there has been a motion to compel that was
13 filed regarding those responses.
14 I think some of the same objections were raised by
15 the other parties so I think we're going to have to deal
16 with the issues anyway, and if it applies to some of the
17 petitioners it's going to apply to all of them, so I'm
18 going to grant the motion for leave to amended response.
19 And if and when a motion to compel is filed we'll address
20 the validity of the discovery objections that were raised
21 by the Fruit and Vegetable Growers as well as numerous
22 other petitioners.
23 DER has filed a motion for protective order regarding
24 the deposition of one of its witnesses. I don't know what
25 the status of that is. I think it would appear clear that
33
1 the request --
2 MR. HYDE: Which motion are you referring to?
3 HEARING OFFICER MENTON: Regarding a Dow.
4 MR. KILLINGER: I think it's pretty much resolved. I
5 just wanted to make objections for the record on some of
6 the questions that were proposed to be asked and the
7 documents that were sought. I think if we argue about the
8 relevance of the settlement issues that will resolve part
9 of my objection, and I just discussed with Mr. Hyde our
10 agreement to go ahead and produce the documents Ms. Dow
11 does have despite our objections.
12 HEARING OFFICER MENTON: Okay. In a litigation like
13 this there are a lot of forms that are used and a lot of
14 times things are plugged in, I would hope the parties can
15 reach agreement as to when things are not pertinent, that
16 it's not necessarily applicable to that witness, and I
17 think that was the main issue that we raised in connection
18 with that motion. So you have that one resolved, and we
19 don't have to worry about it. All right.
20 Next was a U.S. motion to compel that was filed
21 yesterday. I think it relates to the request for
22 production and also to the interrogatories. Again, I have
23 taken these out of --
24 MR. BURGESS: Your Honor, we --
25 MS. KAVANAUGH: We have not seen that one.
34
1 MS. PONZOLI: It's not timely.
2 HEARING OFFICER MENTON: It's not timely.
3 MS. PONZOLI: It's not ready to be argued.
4 HEARING OFFICER MENTON: All right.
5 MS. PONZOLI: It has only recently been filed.
6 HEARING OFFICER MENTON: All right. There were a
7 couple of issues that I think we can still discuss today
8 and I would like to get a feel for where we are on it
9 even if the particular motion is not timely, hopefully it
10 can be worked out because I'm not sure there were any
11 specific or that there was any specific relief sought; at
12 least, I was not clear as to what the relief sought was.
13 But there are a couple of issues that I thought I wanted
14 to get a feel on.
15 There was a reference to privilege list that the
16 parties have been discussing the possibility of preparing
17 in exchanging privilege list and documents that were
18 withheld from production. What is the status of that?
19 Is there any agreement on that?
20 MS. KAVANAUGH: We have been proposing that
21 for quite some time, and I haven't read the motion. I
22 don't know what --
23 HEARING OFFICER MENTON: Again, reference in
24 this motion, reference in some of the other pleadings,
25 that were, you know, some of the other discovery pleadings
35
1 --
2 MS. KAVANAUGH: Our position is that when any party,
3 and this is one of our standard instructions for the
4 document production request is if you're withholding
5 documents based on a claim of privilege to provide, you
6 know, minimal information so then if it looks like there
7 is a question about it we can come to you. I mean that's
8 our position.
9 HEARING OFFICER MENTON: Well, I guess the reason I
10 brought that up is I think there needs to be a clear
11 understanding everybody is working under the same rules,
12 and I don't know if that's the procedure everybody has
13 been following.
14 I think it is a procedure that should be followed,
15 and if there is a problem with it I would like to know
16 about it and find out why it isn't being done or can't
17 be done.
18 MS. PONZOLI: I think from our perspective, the
19 United States, and I believe actually co-respondents have
20 produced the vast bulk of all of our documents and to one
21 or all of these parties in the room, and we have created,
22 at least, up through certain periods of time rather
23 extensive lists of privilege.
24 We have never received reciprocal lists. And, in
25 fact, in negotiations, it is normally the case that
36
1 their experts have not reached final opinions and have all
2 this work in progress or they have it under umbrella,
3 other entities, other farms, other clients, and it's
4 very difficult to pin them down and to -- will they create
5 a list that, at least, detail all work in progress and
6 give us an opportunity to come to you and say they have
7 done data collection for two to three years. We believe
8 it's appropriate to bring it forward at this time.
9 I really believe that's the crux of the privilege
10 difference. They want to hold whole areas completely
11 away from their privilege list.
12 MS. KAVANAUGH: Can I respond briefly?
13 HEARING OFFICER MENTON: Yes.
14 MS. KAVANAUGH: The discovery scheduling order
15 provided a vehicle whereby expert documents would be
16 produced ten days prior to their deposition which we've
17 been following. Additionally, the United States has filed
18 certain requests for production of expert documents, and
19 we had said, do you want to change the rules? Let's
20 stipulate to that, that we can do document production
21 requests for all witness, expert witness documents,
22 whether they fall within the discoverable documents for
23 testifying expert or not.
24 Thus far they have refused to agree to that process.
25 But setting that aside, it's inconsistent with their
37
1 position on their interrogatories. They will not tell us
2 all of the experts that they apparently have. The
3 District, I guess, is maintaining all of their employees
4 are experts and they will not let us have that
5 information. We want to work this out, Mr. Hearing
6 Officer. We are not intentionally trying to withhold
7 anything, but we feel we have not had a document
8 production request --
9 HEARING OFFICER MENTON: Okay. I think we're
10 getting a little bit ahead of ourselves because some of
11 these issues are raised in some of the other motions
12 that are pending and I have made notes on that to
13 specifically discuss that, so I do want to come back to
14 that issue because it's an important one that we need to
15 resolve.
16 The issue that I was raising now is I just wanted to
17 make sure that everybody was working under the same game
18 rules; that if you're going to pull documents out of the
19 document production on basis of privilege, then you need
20 to prepare a list of the documents that have been pulled
21 out and provide it to the other side. And if there is
22 some question, then we'll do an in camera inspection of
23 them. I simply want to make sure that everybody is
24 working under those same rules.
25 So we have that on the record and I think that was
38
1 one of the issues that was raised. I just simply wanted
2 to get that clear that that's what I expect out of
3 everybody involved in this case.
4 The other issue that was raised in this motion to
5 compel, and again I realize that you have not seen it, I
6 realize it's premature, but one of the things that it did
7 bring to my attention and I think we can address in
8 a generic sense was the notion of general objections.
9 There was a general objection that was raised regarding
10 the limited role of the U.S. in its involvement in this
11 case.
12 And I just wanted to say that I understand the notion
13 of general objections and I don't have any problem with
14 people putting them in there to protect themselves, but if
15 there are specific documents or that there are specific
16 requests to which you think that an objection such as the
17 limited role of the U.S. is applicable, I think you need
18 to make that clear so that we can specifically address it.
19 If you're, you know, withholding documents because you
20 don't think the U.S. role in this case allows them to get
21 into it, then I want them to know so that they can bring
22 it to my attention and we can resolve it. All right.
23 MS. KAVANAUGH: I assume that would hold true for the
24 general objections filed by the other --
25 HEARING OFFICER MENTON: The same for everybody
39
1 concerned. I know everybody has filed general objections
2 and I'm not sure they really mean anything except to
3 kind of CYA. All right.
4 The next issue has to do with the League's petition
5 -- I mean the League's motion to compel response to the
6 first interrogatories. And again this is a general
7 objection type issue from what I understand where at least
8 as I read the motion and the discovery responses, the
9 interrogatories had requested the disclosure of
10 individuals employed by the District having knowledge of
11 various information and descending order of knowledge
12 or something to that effect.
13 The Water Management District has filed a response to
14 the motion to compel. I have read that as well. I think
15 first of all, again, the response and the objections that
16 were filed by the Water Management District was in this
17 general objection category, and the motion to compel seems
18 to assume that there are specific individuals who have not
19 been identified and have been withheld.
20 I'm not clear in reading the interrogatories that
21 that's what they're saying, and it may be. But let me
22 just say as a general matter in reviewing the
23 interrogatories, I do have a problem with the notion of
24 framing an interrogatory in terms of descending order of
25 knowledge or even identifying people having knowledge when
40
1 we're talking about a situation where probably
2 every employee of the Water Management District has
3 knowledge to some degree.
4 If there are specific areas in which you're looking
5 for people who had involvement in making decisions as to
6 what goes into the plan and had involvement in taking
7 samples or running tests or something, I think you need to
8 be more specific in terms of what you're seeking, you
9 know, or who you're seeking to have identified. So from
10 that perspective, I did not think the motion to compel was
11 well taken, and I'll give you an opportunity to
12 specifically address those issues. But at least in the
13 way that the interrogatories were framed and the responses
14 that were received, I didn't see how I could compel
15 any better answers at this point. So, Mr. Burgess, I
16 don't know if that's you or Ms. Kavanaugh.
17 MS. KAVANAUGH: That's me. Mr. Hearing Officer,
18 these interrogatories, however inartfully worded they may
19 have been were intended to get the standard person most
20 knowledgeable. You will recall the very first scheduling
21 hearing we talked about the fact that we need to know who
22 basically did the Plan so that we could then formulate our
23 discovery. And, in fact, we have listed a bunch of
24 District personnel that we believe have knowledge, but we
25 don't know. I mean that's just based on what we're going
41
1 on. And that was our intent, was just simply to get the
2 players.
3 The objection raises a question that the players they
4 have identified in their answers to interrogatories and
5 they have identified some other witnesses now are the only
6 players and whether or not the District is, in fact,
7 withholding the names of persons who participate in the
8 decision making process but disagree with it, that's
9 what the motion to compel was really directed to.
10 As I say, this was intended to be your standard
11 person most knowledgeable interrogatory, and it wasn't
12 until we got the objection back that we became quite
13 concerned that, in fact, they were withholding persons
14 most knowledgeable but who disagree on grounds that
15 their opinions are not relevant, so that was the thrust of
16 the motion to compel and that's really what we
17 want some relief from.
18 It may be there aren't any. We said that, but
19 certainly their objection raises that question.
20 Apparently, there has been some discussion between Mr.
21 Reid and someone else from the petitioners' side about
22 possibly identifying those witnesses, et cetera, but we
23 now need assurance that they aren't excluding people on
24 the basis that they disagree with the Plan. That's what
25 we really would like some relief from.
42
1 HEARING OFFICER MENTON: Okay. I don't think the
2 interrogatories as framed necessarily get to that issue,
3 so I think you either have to explore that through
4 some other discovery mechanism or through interrogatories
5 or something to that effect.
6 MS. KAVANAUGH: Okay. Directed to the issues
7 raised by the objection as to knowledgeable persons who
8 disagree.
9 HEARING OFFICER MENTON: Yes -- well, I mean, I'm
10 not going frame it for you.
11 MS. KAVANAUGH: I understand that. I'm just trying
12 to understand your ruling.
13 HEARING OFFICER MENTON: All right. Mr. Reid, did
14 you have anything you wanted to add?
15 MR. REID: Well, one thing. There is a little
16 bit of a problem in a case such as this and with regard
17 to the idea of experts versus facts.
18 HEARING OFFICER MENTON: That's a good point.
19 MR. REID: And when you say this is usual, give
20 me all the facts, well, this is not the usual give me all
21 the facts. When you ask for somebody who's knowledgeable
22 about a very highly technical issue, you're looking for
23 an expert.
24 Also this is not a private corporation. Everything
25 we do is out there. We've been producing reams of paper
43
1 about this for a long time, so I would think that anybody
2 that has looked at all this paper can figure out who was
3 involved in the process. I mean, don't think we can hide
4 anybody is what I"m saying who works at the District.
5 And we felt this was -- we had some other objections to
6 this, overly broad and burdensome, trying to figure
7 out all the employees of the District who might have
8 knowledge about this. So I assume you're denying the
9 motion, and then we'll deal at the next round when it
10 comes up.
11 HEARING OFFICER MENTON: Yes, I think that's
12 probably the best thing to do. The point that you
13 raise is one that I made notes of too and I think is
14 an important one. I don't think it's ripe to resolve
15 today, but that's the issue of experts versus fact
16 witnesses. It's a very close line to draw in here and
17 a lot of time it's going to depend on the way the
18 questions are phrased at the depositions.
19 I do think that the petitioners are entitled to
20 explore the involvement of individuals who work for the
21 District who are not necessarily listed on the District's
22 witness list, but I don't think that that means that
23 they're going to go in and seek opinion testimony from
24 those witnesses.
25 I think the inquiry should be limited to the factual
44
1 involvement in preparation of the Plan and those sorts of
2 things, but I think we're getting a little ahead of
3 ourselves. If we need to address that issue in the
4 future, we can do so. But as I indicated in just a
5 general sense I don't think petitioners should be
6 limited to those witnesses, those District employees who
7 are identified as witnesses by the District. But on the
8 other hand, I don't think that you're entitled to go in
9 and seek expert testimony per se from them.
10 MS. KAVANAUGH: Mr. Hearing Officer, two issues.
11 First of all, I'm trying to understand the answers they
12 did give us to these interrogatories where they
13 incorporate by reference other witness lists that
14 list persons on various subject matters and so forth
15 and so on. If, in effect, you're saying that these
16 answers, which are really no answers in most cases, in as
17 far as they're interrogatories are not answers, we have a
18 limited number of interrogatories we can pose. And we
19 would like to have the ability to not have these count
20 against the 75 interrogatories.
21 I don't know, I've forgotten how many we have,
22 because they're essentially not answered. And as I
23 understand your ruling, you're saying the interrogatories
24 aren't sufficient for them to answer them so we would like
25 to recast these interrogatories.
45
1 HEARING OFFICER MENTON: Well, I don't know, I didn't
2 feel in reviewing the answers that were submitted that
3 they were necessarily nonresponsive. I thought --
4 MS. KAVANAUGH: Not all of them, some of they did
5 list. For example --
6 HEARING OFFICER MENTON: I don't have them in front
7 of me.
8 MS. KAVANAUGH: There are a lot of references to
9 other lists, but they do list some names. I mean --
10 HEARING OFFICER MENTON: Well, as I recall, what
11 they did was they listed a few specific witnesses in most
12 instances of people who I gather had the most knowledge
13 regarding particular issues that were sought in the
14 interrogatories, and then they also incorporated the
15 witness list to the extent that there was disclosure of
16 other witnesses who were also going to address that issue.
17 MR. REID: That's exactly what we did.
18 MS. KAVANAUGH: And the problem that we have is
19 bearing in mind we are trying in good faith to work out
20 this deposition schedule because we really don't want to
21 depose everybody at the District. We want to depose only
22 those people with knowledge, and that's what we're trying
23 to get identification of the people who participated in
24 the formulation of the Plan regardless of what their
25 opinions might have been, regardless of whether they agree
46
1 or disagree with it, just so we know who we have to
2 depose.
3 And perhaps if we take all of the lists they
4 reference and sit down on the 4th, maybe we can
5 work this out, but maybe we have to come back to you on
6 the 18th.
7 HEARING OFFICER MENTON: All right. Well, see if
8 you can work it out. Again, I don't know, you know, I
9 don't know how much of that information can be
10 gleaned from the SWIM Plan itself and attendances and
11 references in there, but see if you can work it out.
12 If you can't, let's take it up again.
13 All right. I think the next group has to deal with
14 the South Florida Water Management District motion to
15 compel that was filed on October 30th regarding Curtis
16 Richardson. The Co-op filed a response on November
17 5th. The League filed a response on November 16th.
18 I think there were also objections that were filed to the
19 cross notice, joint objections that were filed, I think,
20 by the Co-op on November 5th.
21 MR. BURGESS: Yes, Your Honor. Your Honor, I
22 understand from conversation with Mr. Nettleton last
23 evening, the District intends to defer this motion until
24 they discuss with the United States certain documents that
25 were produced by Duke Wetland Center employees in
47
1 their depositions over the last several weeks.
2 MR. REID: That's true, and also to discuss with Mr.
3 Burgess because these were documents that were produced at
4 depositions and through some error we didn't say make
5 two copies and people who produced them are all put back
6 and can't copy them again. So between these two parties
7 they got all -- they have copies, so I'm hoping each party
8 will make available their part, what they copied to us.
9 MR. BURGESS: Your Honor, my problem --
10 MR. REID: Otherwise we'll have bring them all back.
11 MR. BURGESS: My problem with that fundamental is as
12 you referenced earlier with respect to coordination of
13 discovery, I think that each party on each side of the
14 ledger has a duty to their co-intervenors and
15 co-petitioners with respect to discovery. I would urge
16 the Court to instruct the District to seek these documents
17 from the United States.
18 The United States who subpoenaed these witnesses and
19 took these depositions copied all the documents produced.
20 We did not. So the full set, if you will, will be
21 available from the United States. Secondly, when the
22 District filed this motion and at the same time we filed
23 our formal responses, I sent Mr. Nettleton a letter on
24 November 5th where I explained to him the type and extent
25 of the documents that he's seeking his duces tecum,
48
1 including documents and data collected by Curtis
2 Richardson or those associated with him are now presently
3 being produced by witnesses subpoenaed by the United
4 States.
5 On November 5th, I sent this letter telling Mr.
6 Nettleton I attended a deposition the day before where the
7 District did not attend where the United States
8 subpoenaed one Robert Johnson of the Duke Wetland Center
9 that he produced documents to the United States; that more
10 of the depositions were scheduled for the very day of my
11 letter, Dr. Russ Raider, and more depositions were
12 scheduled in North Carolina for the following two weeks
13 where a majority of the documents that they sought
14 were being produced; and that I informed him on November
15 5th attendance at these depositions by counsel for the
16 District would allow you to obtain copy of these
17 documents. Counsel for the District didn't attend.
18 MR. REID: I saw all these letters, and I thought we
19 were deferring -- I'm mean, I'm not sure why counsel is
20 reading all these letters to me. I just said I'm trying
21 to work out --
22 HEARING OFFICER MENTON: This is the kind of thing
23 that I don't --
24 MR. REID: People have logistical problems, people
25 make copies. I could have said make two, you know. It
49
1 was an oversight.
2 HEARING OFFICER MENTON: Mr. Reid, as I understand
3 Mr. Burgess he said the U.S. copied everything that was
4 available so --
5 MR. REID: I'll find out about that. We'll work it
6 out.
7 MS. PONZOLI: There is a problem. We can try to work
8 it out. The problem that exists is that when we got to
9 North Carolina -- first of all, I never knew I had
10 an obligation to make duplicate copies, making a single
11 copy was an extraordinary task because they were in
12 DOS, they were in Macintosh. I'm not that computer
13 literate, but I have to tell you it was a nightmare. I
14 don't know what it is about Durham, but I guess everybody
15 makes their own disk in Durham.
16 HEARING OFFICER MENTON: Excuse me. I spend
17 a lot of time in Durham.
18 MS. PONZOLI: Well, maybe you had this experience.
19 But let me tell you bringing in a major scientist
20 in trying to get his documents --
21 MR. REID: I would say they should go to Chapel hill
22 to have them copied.
23 MS. PONZOLI: I would be so happy to take on Mr.
24 Burgess' burden to provide Mr. Reid a copy of the
25 documents except in the narrow timeframe that we have to
50
1 get this second round of these very extensive documents
2 produced, I don't think there is time. I would do it for
3 him. He knows that. I don't think I have time.
4 It's going to have to come from Mr. Burgess, and
5 there is no prejudice to Mr. Burgess because those people
6 are already prepared. They don't need those documents to
7 prepare. I need my disks and documents to prepare.
8 MR. BURGESS: This is the first time we ever got
9 these first disks and documents. We need to prepare.
10 It's not as simple as making copies. We're dealing with
11 19 boxes of data, 50 computer disks. It's not my burden.
12 I put the District on notice 15 days before today
13 that they could attend these depositions and get these
14 documents.
15 MS. KAVANAUGH: These are third party depositions.
16 MR. BURGESS: These are not our witnesses. They are
17 third party --
18 MS. PONZOLI: That's not completely true. These are
19 the documents and data of Dr. Curtis Richardson that will
20 underlie. That's why I'm doing this. They're the
21 foundation for the principal witness for everyone on that
22 side of the room.
23 HEARING OFFICER MENTON: Well, it seems to me that
24 we have a couple of problems. Number One, Mr. Burgess
25 said he didn't copy everything that you did, so if he
51
1 gives Mr. Reid what he has, then Mr. Reid doesn't have
2 everything so --
3 MS. PONZOLI: I'll give him the balance.
4 MR. BURGESS: That's a small number compared to the
5 burden you would be placing on us, and it's not our
6 burden.
7 HEARING OFFICER MENTON: I think on this one the
8 aligning parties will have to coordinate amongst
9 themselves and work out some way to do it. As Mr. Reid
10 said there is going to be some ongoing discussions and
11 let's see if we can get that resolved. I think you're
12 going to have to work out some kind of arrangement to take
13 care of them.
14 I think it's too much to go back and ask him to
15 figure out what's been produced and what hasn't been
16 produced and go through all that. This motion did
17 raise the issue of when documents have to be produced, and
18 I think the discovery order says seven days prior to the
19 time of the witness deposition. And as I understood Ms.
20 Kavanaugh earlier there apparently has been some
21 discussion going on as to whether or not that seven-day
22 cut off means that none of the documents have to be
23 produced until seven days beforehand; is that --
24 MS. KAVANAUGH: Well, basically we propose you can
25 just send document production requests, but we wanted
52
1 everyone to stipulate since the only one that sent that
2 kind of document production request so far is the United
3 States is that if we sent similar document production
4 requests we were all agreeing that we would respond in
5 accordance with the Florida Rules, and for some reason we
6 have not been able to get that stipulation.
7 That would be our position, use normal discovery and
8 whatever is discoverable is discoverable. If there are
9 documents someone wants to withhold because they say their
10 nontestifying experts or testifying experts or whatever,
11 then we try to work those out as normal discovery
12 disputes. We're willing to enter into that sort of
13 stipulation.
14 MR. BURGESS: I understand December 4th is the
15 subject matter of expert witness document production.
16 Hopefully we can get that --
17 MR. REID: I guess one of the problems was when
18 depositions were scheduled and then canceled, document
19 production trail when it's rescheduled. I think that's
20 probably the difference.
21 HEARING OFFICER MENTON: All right. Again,
22 hopefully you can resolve this on December 4th when you
23 make an observation. I don't think the seven-day period
24 that's in the discovery order was necessarily meant to
25 mean that you hold off until seven days before the
53
1 deposition in order to produce the documents.
2 And, you know, I think that in the spirit of trying
3 to get all of the information out and enable all of the
4 parties to complete their discovery in a timely manner,
5 it's important that everyone work, try to produce the
6 documents as early on in the process as they can. So I
7 think that's the principle that you should use in
8 approaching the December 4th meeting.
9 MR. FITZGERALD: Mr. Hearing Officer, this is a
10 related issue in scheduling perhaps you can clarify for
11 us. It's not something really that needs to be briefed
12 but very easily discussed in a minute or two, and it comes
13 up before December 4th, which is why we really can't push
14 it off.
15 There are a number of witnesses on the part of the
16 League, for example, who do not have final opinions yet.
17 As you may recall from reading our response to their
18 request to toss out the discovery scheduling order,
19 the League listed 37 expert witnesses in their final
20 designation, only one of 37 is listed as having final
21 opinions at this point, and in the view of the League and
22 in correspondence that has been suggested to me and by
23 other parties that it is improper for the United States to
24 depose any expert of theirs who has not yet had final
25 opinions.
54
1 Because those other 36 stretch from December 15th
2 through, well, firm dates in February, but then some it's
3 just whenever the work is done, we can't very well leave
4 36 witnesses until February or even late in the game. We
5 need to depose them sooner, so we have noticed some of
6 those people for deposition prior to the date suggested in
7 their final opinion, some as little as five to ten days
8 prior and some are going to be longer.
9 The reason being is the discovery scheduling order
10 in our understanding when it said designates on the 26th
11 of October, that opens the door to depositions of anyone
12 thereafter; and should opinions change and what not, it's
13 my understanding from reviewing the transcripts of the
14 various hearings that address that, that you were
15 suggesting it might be necessary to do a second shorter
16 presumably deposition of someone finalizes some
17 piece of work.
18 We can't very well wait until the end of discovery in
19 February or March to conclude that and to review, at
20 least, preliminarily as much of the data and work that has
21 been done. The parties have suggested from the petitioner
22 side that should we proceed to depose experts who would
23 not yet reach final decisions, that they will thereafter
24 depose subsequent deposition.
25 This is something that's either a clarification
55
1 of the October 26th ruling, or if you can just give us
2 guidance just so we know how to proceed immediately
3 because this is an immediate issue, then everyone will
4 know and we won't have to do a flurry of paperwork.
5 MS. KAVANAUGH: Let me just address it briefly. In
6 the October 26th disclosure also we were required to
7 disclose when the anticipated opinions would be ready,
8 and we did.
9 The problem is the United States is scheduling people
10 before that date and the specific way it came up is
11 one witness, one of the opinions we believe until December
12 15th, they deposed them from December 1st or noticed
13 them or something. Our problem is a lot of our expert
14 opinions is bearing in mind we're going to have to
15 discover the basis of the Plan and having we feel some
16 problems with that are dependent on other things going on,
17 So we were giving them our best guess so they wouldn't
18 have to keep redeposing.
19 If we were starting to have to take two depositions
20 of the experts in this case, we will never get done. We
21 thought this was a reasonable way to handle it. There are
22 four experts who are involved in the Refuge testing
23 program and frankly their opinions are going to in some
24 way, at least depend on when they get started and so
25 forth, but that's for another day.
56
1 We said when our experts opinions will be ready and
2 frankly, Mr. Hearing Officer, I don't know why they can't
3 wait. We have our experts on a time frame, et cetera, et
4 cetera. If their expert opinions become ready sooner,
5 we'll tell them.
6 HEARING OFFICER MENTON: Okay. Well, we've got a
7 couple of problems here. Number One, I think that clearly
8 you ought to plan your discovery around those experts
9 whose opinions are formulated to the extent possible. In
10 the meantime, we have to work on an expedited basis. If
11 there are no witnesses, instead of having dead time
12 where no depositions are being taken, I think they ought
13 to be able to --
14 MS. KAVANAUGH: But that's not the case, sir.
15 HEARING OFFICER MENTON: Okay. I mean, I don't
16 think the discovery has to -- I don't want it to be going
17 one sided. I don't know if that's what going on or not.
18 I don't know. I don't have a good enough feel on that
19 at this point.
20 MR. FITZGERALD: Mr. Hearing Officer, as I said, 36
21 of the 37 that are listed is not ready now. I need to do
22 discovery on their experts. There are no experts. When I
23 asked for those people and noticed them, I didn't get back
24 as the discovery order would suggest a list of
25 alternatives who are ready, and this is not exclusive to
57
1 the League. I didn't mean to single them out.
2 I've had more or less the same response from the
3 Co-op on a witness I have set down for our next two
4 week period. This is a universal problem in this case.
5 No one over there is ready, and I don't want to engage
6 in the alternative of filing motions to strike witnesses,
7 which is the proper way to go about this if they're
8 holding back their witnesses.
9 This matter has pended for some of these parties for
10 over three years. These people have to have something
11 done. I need to start the process. They're deposing my
12 experts and I can't wait. There is no one to depose.
13 MS. KAVANAUGH: Mr. Hearing Officer, can I say
14 one thing? This is really troubling, and I understand you
15 don't want to hear who shot John to each and every thing.
16 I don't blame you. I have to tell you the petitioners we
17 thought that we would at least at the beginning have the
18 opportunity to find out the scientific basis and what this
19 Plan is about.
20 Mr. Hearing Officer, you're going to hear arguments
21 and I guess that will determine if you're going to hear
22 evidence. But this Plan was formulated in secret. The
23 documents were withheld. We had to bring three public
24 records actions to get any of this technical stuff
25 they're telling you about.
58
1 We thought that we would have an opportunity to, at
2 least, make that initial discovery, and then our experts
3 would have the information on which to formulate
4 their opinions, but it hasn't worked that way. So we're
5 trying. And when he says 37 witnesses, we gave specific
6 dates as we were supposed to in anticipation we would get
7 certain discovery responses back that our experts would be
8 able to factor into their opinions and be ready.
9 That hasn't happened in each and every case, but we
10 are trying very hard. I don't know how to bring this to
11 you except on these individual motions that we are simply
12 being thwarted in discovery. Now we had a good thing
13 happen. This is the good news. That we had a counsel
14 call. I think everyone is running into some problems and
15 the realization that expedited is a relative term in a
16 case as complicated as this one, and there may have to be
17 some adjustments to the schedule so we are not constantly
18 at a loggerhead over discovery and who gets what first and
19 what not.
20 I'm hopeful on December 4th we can work a lot of this
21 out. I have to say, and you've denied our motions
22 and I understand that, but I want to say on the record
23 that from my client's perspective we are being thwarted
24 and we are not getting reasonable discovery and that is in
25 large part, you know, the tail wagging the dog of a lot of
59
1 experts being able to formulate their final opinions, but
2 we have set dates for most of them as to when we, at
3 least, hope they will have final opinions. But to depose
4 them as Mr. Fitzgerald said to me, I'll depose them on
5 opinions that are final and then we'll depose them again
6 later, then we're going to have twice as many depositions.
7 HEARING OFFICER MENTON: Well, in reading the
8 petition, though, there are very clearly some factual
9 allegations that are made in there, so there has to be
10 someone somewhere who's formulated some opinions.
11 MS. KAVANAUGH: This is true and we don't deny that,
12 but in order to formulate all of the opinions and all of
13 the testimony that will be presented we have to know the
14 basis for that. That may alter things.
15 It may make new opinions, we don't know. But the
16 point is, are all of our experts subject to multiple
17 depositions. If so, are we going to be able to turn
18 around and depose their experts after they hear our
19 experts about any changes in their opinions? All we're
20 asking for is a reasonable period of time. This is
21 an unusual situation, a case as complicated as this.
22 HEARING OFFICER MENTON: Well, and I understand that
23 obviously the District proposed the Plan so their experts
24 were further along in the process in terms of formulating
25 at least their preliminary conclusions that went into the
60
1 Plan. On the other hand, petitioners filed, you know, a
2 petition challenging it alleging certain factual things,
3 and I do believe that those parties that are defending the
4 Plan are entitled to begin exploring the basis for those
5 allegations.
6 Now it would seem to me there are some experts that
7 are further along in the process of formulating
8 their opinions, and you probably have a better feel on
9 that than anybody else does, so --
10 MS. KAVANAUGH: We have listed --
11 HEARING OFFICER MENTON: -- I think you need to be
12 providing some alternative for him so that they can get
13 their discovery process underway. What I don't want to
14 see are these two-week gaps when they're supposed to be
15 conducting discovery and they're not able to do anything.
16 MS. KAVANAUGH: But what I'm telling you is we're
17 faced with the identical problem. We asked to take the
18 depositions of people we believe we have to take and they
19 give us substitute witnesses who don't know anything,
20 and so we're all faced -- we're trying to work with them
21 on this.
22 We have said in good faith when certain of our
23 experts will have opinions ready. We're making those
24 people available. We have produced the witnesses. I
25 mean, I don't think that Mr. Fitzgerald -- this is the
61
1 first time this has come up. We have been producing
2 witnesses they have noticed so far. So we're not looking
3 at gaps in discovery. Well, we are, but they aren't. We
4 have been producing our witnesses.
5 HEARING OFFICER MENTON: Well, maybe I thought I
6 read in one of the pleadings that there was a two-week
7 period there where there were no substitute provided
8 or something.
9 MS. KAVANAUGH: For us there was a problem with the
10 substitute being provided.
11 MS. PONZOLI: Give us December 4th, Mr. Hearing
12 Officer, and all will be revealed and then we'll go
13 forward from there.
14 HEARING OFFICER MENTON: All right.
15 MS. PONZOLI: Try and work it out.
16 HEARING OFFICER MENTON: Yes, I think that's
17 probably a good suggestion. I do want to, you know,
18 make it clear that I think that it's important that there
19 not be gaps and that everybody be given an opportunity to
20 be pursuing the preparation of their case.
21 MS. KAVANAUGH: We agree wholeheartedly.
22 MR. GREEN: Mr. Menton, just for the record I think
23 that's proceeding admirably and despite what you're
24 hearing, I think the 4th might be very helpful.
25 HEARING OFFICER MENTON: Okay. Why don't we take
62
1 about a ten-minute break.
2 (WHEREUPON, A BREAK WAS TAKEN AT 10:15 A.M. AND THE
3 PROCEEDINGS CONTINUE AT 10:35 A.M. AS FOLLOWS:)
4 HEARING OFFICER MENTON: Okay. Is everybody
5 here now to deal with this last access matter that we
6 have?
7 MR. BURGESS: Yes, Your Honor.
8 HEARING OFFICER MENTON: Mr. Burgess, I don't think
9 you were here earlier when we just touched on this
10 briefly. As I understand it, there is an agreement on most
11 issues regarding the access except for the question of
12 revisiting it, if necessary. There is some language, I
13 guess, that you proposed, and as I indicated before you
14 got here, I don't think that's a problem.
15 It's always subject to being revisited on appropriate
16 motion if need be, so I don't think that language is
17 necessary. There is one provision I think that was
18 submitted that I indicated unless the parties
19 agreed between themselves I think that's a different
20 issue. I think we might as well put that in there so you
21 don't have to come back for a hearing if you can reach
22 agreement between yourselves on revisiting the sites.
23 So I will put that portion in, but in terms of coming
24 back, that's not necessary. If you need to do it, file a
25 motion and we'll take it up and deal with it that
63
1 way.
2 MR. BURGESS: Okay.
3 HEARING OFFICER MENTON: All right. The other issue,
4 I guess, is just on the transects.
5 MR. BURGESS: Exactly, Your Honor. Hopefully the
6 last remaining vestige of dispute between us and the
7 United States concerning the entry and access order.
8 To review, we filed our motion to compel back in August
9 and specifically today the only remaining paragraph
10 concerns Paragraph 4 of our access and entry request,
11 which I'll read into the record.
12 It states during the initial seven to ten day
13 initial Refuge sampling program the petitioners request
14 permission to include low level flight along historical
15 transects established and sampled by state and federal
16 scientists with the option to land and collect data
17 at up to nine stations along nine historical transects.
18 We're also here, Your Honor, by leave of some of the
19 rulings you made at the last ruling where you did allow us
20 the second aerial overflight to overfly transects that
21 we were not able to get to during the first overflight,
22 and you asked us to see if we could pick an area down
23 near the C transect where we could establish a transect,
24 and in addition, you said that, on Page 131, if they need
25 to do more and can't agree to it, we'll take it up again.
64
1 That's really why we're here.
2 As a result of that aerial overflight, we do need to
3 do more. We have not been able to agree with the United
4 States. As a result of that overflight we have picked our
5 sites, and we have picked the areas, the historical
6 transects where we would like to sample. Of course, in
7 that initial entry and access we said that we needed those
8 aerial overflights to help us pinpoint the areas we needed
9 to sample not having been allowed into the Refuge
10 previously.
11 The United States wants to turn that, what I would
12 term an orderly process, on its head by arguing somehow
13 because we didn't identify in our initial July request
14 exactly where we wanted to go and what we wanted to do,
15 that somehow we should be prevented from doing that here
16 today.
17 Their SWIM Plan is premised on allegations that
18 nutrient polluted waters leaving our client's lands and
19 the other petitioners' lands has caused changes in the
20 Everglades ecological system. Our amended petition, of
21 course, challenges that, that whether or not those
22 challenges which as their SWIM Plan also alludes to or
23 demonstrated by vegetation species assemblages and
24 diversity different than the former natural Everglades
25 areas.
65
1 We dispute whether those are caused by nutrient
2 laden waters leaving our lands, and we allege that
3 they're caused by the effect of hydro-period, the
4 maintenance of the system, the timing, the distribution
5 and flow of water, the construction of the levies and
6 the pump stations, and the way the water is managed
7 through the Loxahatchee.
8 What we want to do and why we want to do is very
9 simply we're looking to conduct minimally invasive
10 sampling along six different transects in these different
11 vegetation patterns and areas in the Loxahatchee. We need
12 to be able to controvert testimony that we expect to
13 hear from the other side. Ron Jones who was here before
14 Your Honor last month has sampled some 40 stations
15 along two different transects much longer in
16 length than we're seeking to do here today.
17 Simply, we want to get in an air boat, we want to
18 start in a perimeter canal at six different areas
19 around the Loxahachee. The perimeter canal is an area
20 open to the public. Anybody can get in there with a canoe
21 or a jon boat. We want to be able to measure water depth
22 with a ruler. We want to be able to take samples in
23 water bottles like Ron Jones did. We want to inspect
24 vegetation like Ron Jones did, and we want to take some
25 soil samples, many less than Ron Jones did.
66
1 We are not really seeking to establish physical
2 stations. I think stations is a misnomer. They're really
3 stops or locations along in the air boat, and we are
4 able to do this, all of this, all six transects in our
5 initial seven to ten day period of time that you've
6 already granted us leave and entry into the Loxahatchee to
7 do.
8 As I said, some of these areas are in areas now open
9 to the public and accessible to the public, although you
10 can't do scientific sampling and that's what we intend to
11 do. None of these areas are in what you call the natural
12 pristine interior marshes land areas with birds or other
13 things that necessarily should be protected. They're all
14 starting in the publicly accessible perimeter canal, going
15 through some assemblages of vegetation perhaps a mile,
16 mile and a half, and taking different readings along the
17 way. And to help make this clear, I would like to call
18 Dr. Michael Dennis to the stand.
19 HEARING OFFICER MENTON: Before we do that, I'm not
20 sure exactly -- I'm having a little bit of a hard time
21 recalling exactly what we resolved last time and what's in
22 dispute. What are we arguing about here? I thought we
23 basically reached an agreement on most of the areas in
24 which testing was necessary and that we pretty much had
25 resolved most of the issues that you're talking about now.
67
1 MR. FITZGERALD: Last month, Mr. Hearing Officer, as
2 a result of the evidence and witnesses presented, we
3 agreed on pretty much everything. They wanted to go
4 in by air boat and along Transect C --
5 HEARING OFFICER MENTON: Just in that corner --
6 MR. FITZGERALD: Transect C as they identified on
7 the exhibits. In fact, their proposed language to my
8 proposed order talks about Transect C in the exhibits
9 and testimony from last month.
10 HEARING OFFICER MENTON: Right.
11 MR. FITZGERALD: When they got out there what
12 happened, in fact, was they were in Transect C. They did
13 that and didn't like it. They ended up more than
14 four miles into the marsh still in dense cattail
15 stands. That's how bad it is.
16 So instead, they said we want to go somewhere else,
17 and now subsequent to that visit, I was informed they
18 want five more transects that were not discussed last
19 month and for which no scientific justification has been
20 provided, and for which there is no testimony to
21 support last month.
22 MR. BURGESS: Your Honor, that's correct because if
23 you recall at the last hearing Dr. Maffei, the
24 federal observer had to leave in the middle of the
25 afternoon in the first aerial overflight, so we sought
68
1 permission for the second one in order to enable us to go
2 to Transects A, B, and C, and the Ron Jones Transects
3 which we were unable to overfly during the first
4 overflight. That was whole purpose for the second
5 overflight was to be able to go to those areas, to be able
6 to determine observations, visibly observe the vegetative
7 assemblages.
8 And as you