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 VEGETABLE ASSOCIATION, )

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

INC., and HUNDLEY FARMS, INC., )

8 )

Petitioners, )

9 )

vs. ) DOAH CASE

10 NOS.

) 92-3038

11 SOUTH FLORIDA WATER MANAGEMENT DISTRICT, ) 92-3039

) 92-3040

12 Respondent, )

) (Consolidated)

13 )

and )

14 )

MICCOSUKEE TRIBE OF INDIANS, THE UNITED )

15 STATES OF AMERICA, FLORIDA DEPARTMENT OF )

ENVIRONMENTAL REGULATION, and FLORIDA )

16 WILDLIFE ASSOCIATION, )

)

17 Intervenors. )

) _____________________________________________

18

19 HEARING BEFORE: HONORABLE J. STEPHEN MENTON

HEARING OFFICER

20

DATE: FRIDAY, DECEMBER 18, 1992

21 (10:30 A.M. - 4:00 P.M.)

22 LOCATION: HEARING ROOM 5, DESOTO BUILDING

1230 APALACHEE PARKWAY

23 TALLAHASSEE, FLORIDA

24 REPORTED BY: SUE HABERSHAW JOHNSON

CERTIFIED COURT REPORTER

25 REGISTERED PROFESSIONAL REPORTER

2

1 NOTARY PUBLIC

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1 APPEARANCES:

2 Representing Petitioners, Sugar Cane Growers

Cooperative of Florida, Roth Farms, Inc.,

3 and Wedgworth Farms, Inc.:

4 WILLIAM H. GREEN, ESQUIRE

ROBERT P. SMITH, ESQUIRE

5 GARY PERKO, ESQUIRE

DONNA STINSON, ESQUIRE

6 Hopping, Boyd, Green & Sams

123 South Calhoun Street

7 P. O. Box 6526

Tallahassee, Florida 32314

8 (904-222-7500)

9 Representing Petitioners, Florida Sugar Cane

League, Inc., United States Sugar Corporation,

10 and New Hope South, Inc.:

11 RICK J. BURGESS, ESQUIRE

Peeples, Earl & Blank, P.A.

12 One Biscayne Tower, Suite 3636

Two South Biscayne Boulevard

13 Miami, Florida 33131

(305-358-3000)

14 -and-

WILLIAM L. HYDE, ESQUIRE

15 ROBERT BLANK, ESQUIRE

Peeples, Earl & Blank, P.A.

16 Suite 350

215 South Monroe Street

17 Tallahassee, Florida 32301

(904-681-1900)

18

Representing Petitioners, Florida Fruit and

19 Vegetable Association, Lewis Pope Farms,

W. E. Schlechter & Sons, Inc., and

20 Hundley Farms, Inc.:

21 KENNETH F. HOFFMAN, ESQUIRE

Oertel, Hoffman, Fernandez & Cole, P.A.

22 Suite C

2700 Blair Stone Road

23 Tallahassee, Florida 32301

(904-877-0099)

24

25

4

1 Representing Respondent, South Florida Water

Management District:

2

R. BENJAMIN REID, ESQUIRE

3 Popham, Haik, Schnobrick & Kaufman, Ltd.

400 International Place

4 100 Southeast Second Street

Miami, Florida 33131

5 (305-539-7222)

6 Representing Intervenor, The United States

of America:

7

SUZAN HILL PONZOLI, ESQUIRE

8 THOMAS A. WATTS FITZGERALD, ESQUIRE

Assistant United States Attorneys

9 Southern District of Florida

Suite 627

10 155 South Miami Avenue

Miami, Florida 33130-1693

11 (305-536-4425)

12 Representing Intervenor, Florida Department of

Environmental Regulation:

13

LEE M. KILLINGER, ESQUIRE

14 KEITH HETRICK, ESQUIRE

Assistant General Counsel

15 Department of Environmental Regulation

Twin Towers Office Building

16 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

17 (904-488-9730)

18 Representing Intervenor, Florida Wildlife

Federation:

19

DAVID G. GUEST, ESQUIRE

20 KEN WRIGHT, ESQUIRE

STEVEN GRIGAS, ESQUIRE

21 111 South Martin Luther King, Jr., Blvd.

P.O. Box 1329

22 Tallahassee, Florida 32302

(904-681-0031)

23

24

25

5

1 Representing the United States Department of

Justice:

2

KEITH A. SAXE, ESQUIRE

3 United States Department of Justice

Environmental & Natural Resources Division

4 General Litigation Section

Room 879, 601 Pennsylvania Avenue (20004)

5 P. O. Box 663

Washington, DC 20044

6 (202-272-4016)

7 * * * * *

8 ALSO PRESENT: RONALD D. JONES

MONICA REIMER

9

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10

INDEX

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ITEM PAGE

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HEARING COMMENCED . . . . . . . . . . . . . . . . . . 5

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HEARING CONCLUDED . . . . . . . . . . . . . . . . . . 171

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CERTIFICATE OF REPORTER . . . . . . . . . . . . . . . 172

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1 PROCEEDINGS

2 (WHEREUPON, THE HEARING COMMENCED AT 10:30 A.M.,

3 AT WHICH TIME MR. REID, MS. STINSON, AND MR. GRIGAS WERE

4 ABSENT FROM THE HEARING ROOM.)

5 HEARING OFFICER: Why don't we start out by

6 taking a role call of who is here. For the

7 petitioners, we will begin with you.

8 MR. GREEN: Bill Green, Bob Smith, and Gary Perko

9 are here for the record.

10 HEARING OFFICER: The League?

11 MR. BURGESS: Rick Burgess, Bob Blank, and Bill

12 Hyde.

13 HEARING OFFICER: All right, and for the Fruit

14 and Vegetable?

15 MR. HOFFMAN: Ken Hoffman. That's it.

16 HEARING OFFICER: I guess the District is not

17 present by anybody?

18 MS. PONZOLI: That's correct.

19 HEARING OFFICER: And then for the intervenors,

20 the U.S.?

21 MS. PONZOLI: Suzan Hill Ponzoli, and with me I

22 have Tom Watts Fitzgerald and Keith Saxe.

23 HEARING OFFICER: And for DER?

24 MR. KILLINGER: Lee Killinger and Keith Hetrick.

25 HEARING OFFICER: Okay. And for the

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1 environmental group?

2 MR. GUEST: David Guest.

3 HEARING OFFICER: Okay. Anybody I missed? All

4 right. I know that Mr. Reid needs to be here for the

5 economic, so I assume we will just put that off until

6 he gets here.

7 Does anybody have an update as to exactly what

8 his status is?

9 MR. SAXE: The last I heard from him he was

10 expected sometime around 12:30.

11 HEARING OFFICER: All right. Maybe what we can

12 do is address some of these other issues. I don't

13 know if he needs to be here necessarily for some of

14 these others, although there is a motion to return

15 privileged documents that was filed by the District,

16 and we will have to wait until he gets here, but the

17 other ones we can take up, and if he has anything to

18 add we can take that up when he gets here.

19 I think probably the best thing to do is let's

20 proceed and try to resolve some of these other ones

21 and then take a lunch break and come back and try to

22 deal with the economic issues after lunch.

23 Okay. According to my list of again what is

24 currently outstanding we have the U.S. access into the

25 EAA still outstanding. There is a motion to return

8

1 privileged documents that was filed by the petitioner.

2 I don't know what the status of that is. There was a

3 similar motion filed by the Water Management District

4 just the other day. I don't know what the status of

5 that is.

6 There was a renewed motion to compel regarding

7 the Richardson documents. I believe that was also

8 filed by the District. Is that correct?

9 MR. BURGESS: Yes, it was, Your Honor, but with

10 respect to that motion, to their motion to compel

11 returned documents we haven't even seen their motion

12 to compel the return of documents. I understand they

13 filed one in the last day or two. We haven't filed a

14 response.

15 The same with respect to the Richardson

16 documents. That motion was filed I believe on the

17 11th, and we have until the 23rd. I don't believe

18 either of those are ripe for discussion today.

19 HEARING OFFICER: Okay.

20 MS. PONZOLI: It is my understanding, Mr. Menton,

21 that the documents of Dr. Richardson are being

22 produced to the United States on Monday, and I don't

23 know if there are other outstanding issues in the

24 District's motion, but assuming they are not seeking

25 more documents than the United States sought, that

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1 issue, I don't understand, Mr. Burgess, why that

2 remains active. It is not my motion, so I shouldn't

3 speak to it. I just don't want my documents to be

4 jeopardized by somehow this limbo status of the

5 District's motion.

6 MR. BURGESS: Where we are, that would be my

7 first argument, that the documents were being produced

8 pursuant to the United States' subpoena, and to the

9 extent that they are seeking anything in addition if

10 they don't get what they want pursuant to the United

11 States' request and the document production on Monday,

12 then that renewed motion may become ripe, but at the

13 moment it is not, and it is not jeopardizing the

14 production. All of this is going forward.

15 HEARING OFFICER: Well, the only thing I wanted

16 to make sure, if we had everyone here, with the

17 document production coming up, if there was a dispute

18 over some documents that were not going to be

19 produced, perhaps we could just resolve it. Even if

20 the time for filing a written response hasn't expired

21 it just seems to me it would be a better course of

22 action to try to take care of these matters if we have

23 everybody here.

24 (WHEREUPON, MS. STINSON ENTERED THE HEARING

25 ROOM.)

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1 I guess we need Mr. Reid, and we will have to get

2 his input when he gets here with respect to that,

3 because as I understood it the District was seeking

4 some documents that are beyond what the United States

5 had sought.

6 The objection as I understood it was more general

7 than those specific documents produced, but just in

8 general terms of definitions and those sorts of

9 things, those kind of things I think can and should be

10 worked out before the document production.

11 MR. BURGESS: Right. The U.S. issued their

12 subpoena to Duke, and Duke produced the documents. In

13 my conversation with counsel and my conversation with

14 my witness it indicates that other than privileged

15 documents which are going to be the subject matter of

16 a privileged list seven days hence, everything that he

17 has and they have is being produced through Duke and

18 then through myself and Bill Green with respect to our

19 expert documents on Monday.

20 So I don't think there is anything left that has

21 not been, but we can handle that either later this

22 afternoon or after production on Monday.

23 HEARING OFFICER: Okay. Just one other pending

24 motion is a motion to consolidate filed by the League,

25 and I guess, you know, if you think about it there are

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1 two ways of addressing that.

2 The first would be with respect to the four

3 permitting cases that were filed and whether they

4 should be consolidated into one. I think that is the

5 easy one. I would assume they agree, even though

6 obviously Wildlife has a different position than the

7 agricultural interests, but certainly those four cases

8 should all be heard at one time. I would assume no

9 one has any objection to that. Is that correct?

10 Okay. So at this time I haven't done any

11 consolidating, an order consolidating those four.

12 The more difficult question is whether or not the

13 permitting cases should be consolidated with the SWIM

14 plan case. I don't know that that is ripe to address

15 today. The motion was just filed here today.

16 MR. HYDE: Mr. Menton, I filed that motion, and

17 obviously it is an important issue, and we do not

18 intend to bring it up today. We wanted to get it into

19 the hopper, so we could consider it.

20 HEARING OFFICER: Okay. I think we all knew that

21 was out there lurking in the background, and this is

22 coming to the forefront, so we will have to do that at

23 our next hearing.

24 But that does raise one issue for me, and that is

25 I am not sure what the results were of the counsel

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1 meetings that have taken place over the last month on

2 some of these discovery issues and the development of

3 a discovery schedule and exactly where we are in terms

4 of an April 5th hearing.

5 Maybe that is the best way to start today, to

6 kind of get an update as to where those are and then

7 go into some more specific issues.

8 MR. BURGESS: Okay.

9 HEARING OFFICER: Mr. Burgess, do you want to go

10 first?

11 MR. BURGESS: Thank you. Your Honor, we have met

12 periodically since our last hearing before you and

13 have agreed to an extension of the hearing date,

14 assuming we have Your Honor's approval, until

15 September 13, with a discovery cutoff of July 31 now,

16 essentially allowing six weeks of pretrial preparation

17 and further and final briefings between July and

18 September 13th.

19 (WHEREUPON, MR. WRIGHT AND MR. GRIGAS ENTERED THE

20 HEARING ROOM.)

21 The petitioners have proposed and I think

22 unanimously still believe that August 31st is a more

23 appropriate date for discovery cutoff than October 4,

24 a better date for the hearing.

25 It is a question of feasibility and mathematics.

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1 Under the respondent's date of July 31st we are being

2 forced to revamp our deposition discovery schedule to

3 provide for four depositions simultaneous,

4 simultaneous depositions, literally every day of the

5 period between now and the end of July.

6 We don't think that that is going to leave

7 sufficient time for deponents that may be identified

8 as discovery progresses nor for sufficient expert

9 deposition followup with respect to some of the

10 experts that are going to, are doing ongoing science

11 and may change opinions and conclusions.

12 We also don't think it allows time in the event

13 of consolidation. We think although respondents have

14 represented the District and DER, they tried to do the

15 witness list with consolidation in mind, I still think

16 that additional witnesses may come to the fore with

17 respect to issues and parties and issues from

18 consolidation with the permit proceedings, so we

19 conservatively estimate maybe another 30 days might be

20 necessary if consolidation occurs.

21 Nevertheless with that background we have all

22 agreed to strive to try and complete discovery by July

23 31 and allow for the hearing to begin on September

24 13th. Also importantly it gives us hopefully,

25 depending upon the weather patterns, minimal wet/dry

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1 seasonality that our experts would require, perhaps

2 six months of that, but we will have to wait and see.

3 It does allow us additional time which we said we

4 needed in the Refuge and the Park toconduct our tests.

5 So we are scheduled after the hearing today to

6 meet again and attempt to work out a deposition

7 discovery schedule.

8 We have all come hopefully equipped with dates

9 when various experts are available and are not

10 available. We have been exchanging lists literally on

11 a daily basis over Fax machines on that subject

12 matter, and we are going to strive this afternoon to

13 hammer out a deposition schedule.

14 At the moment assuming you approve we have agreed

15 to extend it to September 13th and discovery until

16 July 31st.

17 HEARING OFFICER: Okay. Everybody is in

18 agreement on that?

19 MS. PONZOLI: Let me finish, since the

20 petitioners have caveated their agreement, I was

21 unaware we would argue to the Court anything more than

22 what the agreement was.

23 The extension of approximately five more months

24 is enormously painful to the United States, and we

25 feel it is a major concession for this much longer.

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1 We had proposed a schedule that ended some far briefer

2 amount past the April trial date, but we have agreed

3 to July 31st.

4 However, I believe that that is contingent upon

5 our ability to reach a global deposition plan which we

6 have presently not been successful in doing.

7 While we have gone back and forth, there has been

8 some fairly aborted efforts in going back and forth,

9 and I would want to say we will meet this afternoon.

10 I have every reason to believe we should be able to

11 come up with a global deposition plan, but if we

12 cannot the United States has not agreed to five more

13 months of chaos. We might as well end at the end of

14 February if that is the situation.

15 I think that we have agreed that discovery could

16 go to the end of July, assuming you would allow it,

17 and we would be willing to go to trial in September.

18 We are not willing to agree to continued expansions,

19 and we do not want it to be the first of multiple

20 expansions.

21 HEARING OFFICER: Well, am I hearing you

22 correctly, is what you are saying is that you don't

23 agree to the September date until you know you have a

24 global discovery schedule?

25 MS. PONZOLI: Yes, sir.

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1 HEARING OFFICER: So we are not in a position at

2 this point, and we will see if we can come up with it.

3

4 Let me tell you, if everybody is in agreement,

5 then I will live with what you can agree to. If you

6 are not in agreement then I will listen to what you

7 have to say, and I will make a decision as to when we

8 go to trial.

9 As much as I would like to get this case behind

10 me, and I am sure you would, too, I think it's, if we

11 can reach a consensus on when we can start we can go

12 with that.

13 Do the parties have a better feel at this point

14 as to what we are looking at time wise in terms of how

15 long it will take for the hearing? I don't know if

16 you have discussed that. I guess that would depend on

17 whether or not we bring the permitting cases into

18 this.

19 MS. PONZOLI: I don't think we have, and on

20 behalf of the United States I don't think I have a

21 good enough feel for their experts, how many of them

22 they honestly intend to bring to trial and how many

23 are simply doing some work that will never

24 materialize.

25 HEARING OFFICER: How about, if the permitting

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1 cases are consolidated, is the September date

2 feasible?

3 MS. PONZOLI: Yes. I think the respondents

4 believe it is true, that it does not bring, we do not

5 believe we have additional witnesses. Can I speak for

6 DER? I believe the Water Management District has

7 represented they included initial designations of

8 witnesses, the people they would use for the permit

9 challenge. Therefore our list would remain the same.

10 MR. KILLINGER: We attempted to do that with this

11 in mind, and it may be that some of these people will

12 crop up, but at this point I think we have everybody

13 in who might be involved as well.

14 MR. GREEN: We don't know the answer to that,

15 Mr. Menton, because we haven't engaged in any

16 discovery whatever on that proceeding.

17 There may be some different people. They may be

18 the same. If I had to guess, we would pick up a few

19 new deponents. Our client is particularly concerned

20 about the four depositions per day.

21 It was our understanding, two things. Number

22 one, we would work together to try to avoid stressing

23 any particular agency or particular party with regard

24 to four depositions. If all four were Water

25 Management District witnesses at the same time or our

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1 clients', then it would be a stressful situation, and

2 it was our understanding they were basically going to

3 work that out.

4 Ms. Ponzoli has changed the position that I

5 understand she had when we talked in meeting with

6 counsel, and that is we have to agree on global

7 deposition schedules for the next I guess seven months

8 before the new hearing date and discovery schedule

9 extension is set, and I am asking mechanically how

10 that is going to be done, because we had assumed we

11 would come in this morning and we had agreement on

12 these things, and now Ms. Ponzoli is reversing that

13 and saying it is all subject to something that hasn't

14 happened yet, this afternoon, and I suppose we will

15 not be back until next year, and that puts us in a

16 precarious position with regard to scheduling

17 endeavors.

18 I guess I would ask Ms. Ponzoli if that is her

19 final position and the other parties, or whether...

20 MS. PONZOLI: I think the first shift of position

21 occurred when the petitioners came in the room and

22 began to argue that they really need more time.

23 HEARING OFFICER: This isn't going to be

24 productive.

25 MS. PONZOLI: I mean, I think we have an

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1 agreement, but, I mean, they have to come up with a

2 deposition plan. We can't get in there and all of a

3 sudden it falls out.

4 HEARING OFFICER: I understand the qualifications

5 everybody is putting on. I guess the point I want to

6 make is we are looking at having to address this

7 motion to consolidate in the very near future here,

8 and I think that that issue could very well impact on

9 the hearing date, and I am not sure that the parties

10 have even considered that.

11 I want to make sure that is fully taken into

12 account and addressed in response to the motion to

13 consolidate, and I would like to know and have

14 everybody on the record as to where they stand as to

15 the effect of consolidating or not consolidating, and

16 if you oppose consolidation I would like to get an

17 idea in your response as to when you think this

18 consolidation, the permitting case would be ripe to go

19 to hearing and how it will impact on the SWIM plan

20 case.

21 I think that, you know, as I indicated, if

22 everybody is in agreement, which it sounds like they

23 probably are, I know that in seven months you are not

24 going to be able to get every day nailed down

25 completely, but if we have a general time line as to

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1 discovery proceedings, we can work with the new

2 hearing date and deal with the problems as they come

3 up.

4 MR. BURGESS: On behalf of my client we would

5 join in what Mr. Green said. When we spoke about

6 October 4th we were looking solely to the SWIM plan

7 challenge as it is now.

8 We believe there will be additional persons

9 necessary as a result of consolidation, both witnesses

10 that we would name and others from the agencies we

11 would need to depose. We think it is most likely a

12 minimal additional period of time, and we were on the

13 record saying 30 to 90 days additional time.

14 Hopefully the shorter period of time. I think that

15 will be flushed out as the issues become more apparent

16 and the parties and the witnesses become clear in the

17 permit proceeding.

18 But we think an additional amount of time may be

19 necessary.

20 HEARING OFFICER: Well, you know, again I am not

21 prepared to address the consolidation issue today, but

22 I want everyone to have that in mind when addressing

23 the hearing dates, so that we can avoid any surprises

24 where someone comes in later on and says, "Well, we

25 assumed the permitting case was going to be

21

1 consolidated, and if not we ought to go to hearing in

2 June." That's what I want to avoid having happen.

3 Okay. Where are we on the U.S. access issues?

4 MS. PONZOLI: We are pretty close. It gets

5 closer and closer. We just never quite get there. We

6 have three I believe discrete issues.

7 We have pretty good agreement on the order that

8 we can submit to you, but these are the three areas

9 that there was not agreement on the order. We had a

10 conference call last evening trying to iron it out,

11 and I think that, you know, I hope I don't get

12 contradicted here, there are only three remaining.

13 We have a final site problem that we have to

14 argue to you on the final, 40th, site. We have

15 agreement on 39.

16 I am sorry I didn't bring you a copy, so I stuck

17 mine up here on the board, but that map will be

18 attached to the order with also a description by

19 Township, Range, and Section to the order that you

20 would eventually enter, so it would be complete which

21 pieces of property we were entering within the EAA.

22 There would be no, "I thought you were coming to this

23 one, but you came to this one."

24 We have an issue regarding sediment samples.

25 There is some dispute as to I guess, I think it is a

22

1 location dispute, not the number of samples dispute,

2 and then finally we have sort of continuing ideas,

3 will there be a restriction on the use of the data.

4 HEARING OFFICER: The protective order issue?

5 MS. PONZOLI: Yes, sir.

6 HEARING OFFICER: I know I have reviewed all the

7 pleadings on that, and I have taken a look at it. I

8 have not finalized an order on that, and I don't know

9 that we need to specifically address it, unless there

10 is anything further.

11 MS. PONZOLI: We have argued it, and it is

12 possible to accommodate the order we have drafted to

13 embrace your order, whatever it is. That is a

14 possibility.

15 We would simply incorporate your order within the

16 order we agreed to, and then it would reference

17 whatever you did or did not do in that order. So if

18 you want we can argue the two issues.

19 The first issue, if I may go to the map, I will

20 just point out to you, as you recall we have sought

21 eight sites in five bands, and we have pretty good

22 distribution, and I must say largely we had good

23 cooperation in reaching these sites. We have the

24 eight sites within the various bands.

25 Our problem has really been here in the first

23

1 yield belt, closest to the lake, and it is really a

2 similar problem to the Bryant Mill. There as you

3 recall they claimed it was hydrologically isolated.

4 With regard to the lake, a number of locations

5 are I guess in the 298 District, which discharge water

6 into the lake.

7 Mr. Pope, again I accept, I mean, I am told he is

8 in the 298 Drainage District, his water goes into the

9 lake. It is my understanding in addition some seeps

10 south also, but regardless the issue is the same as it

11 was before, is he hydrologically isolated, and does

12 that remove him from the possibility of having to

13 expose his land to entry and inspection by the United

14 States.

15 I have offered to accept another site near there

16 from the Fruit and Vegetable Association. They say

17 they can offer me none, because they are all

18 discharging into the lake.

19 I think that they are in the SWIM challenge, that

20 their water, the lake water does go into the Water

21 Conservation Areas and the Everglades Protection

22 District. I believe it is reasonable to assume and

23 certainly a very difficult proof problem whether their

24 water did seep south into the Everglades, and I think

25 we should be allowed to go onto that property.

24

1 If for some reason we want to use his data and he

2 wants to exclude it later because he says it is not

3 relevant because the water discharged to the lake, I

4 think that is an issue we can address downstream.

5 That is my 40th site, and I believe we should be

6 granted access.

7 HEARING OFFICER: Is this the same Mr. Pope as

8 one of the petitioners for Fruit and Vegetable?

9 MR. HOFFMAN: Correct.

10 MS. PONZOLI: (Conferring off the record with

11 Mr. Fitzgerald.) It is the same Mr. Pope. I think

12 counsel is pointing out to me if they have no water

13 that they claim is going into the Everglades

14 Protection District, why are they here? I mean, they

15 are here to challenge the SWIM plan. Do they have a

16 standing problem?

17 But in any event, I think the issue is very

18 similar to what we have with the Bryant Mill, and we

19 should be granted access.

20 On the sediment samples, I think the problem that

21 arose in drafting an order that we could both agree to

22 was that the petitioners felt that on page eight of

23 our initial request where we indicated the sediment

24 samples would be collected from secondary canals and

25 field ditches by using certain methodology, they felt

25

1 that was a limitation as to where we could go to pull

2 sediment samples, and on page seven it is very clear

3 that we are asking to go to treatment ponds located on

4 or adjacent to EAA sugar mills and the lands and

5 canals immediately adjacent to the mills.

6 I think that these sediment samples that we need

7 to pull from those treatment ponds are critical to

8 understanding the relationship between the phosphorus

9 and the mercury. The sediment is the strongest

10 concentration of all of these that we will find. They

11 are highly eutrophied areas, the treatment ponds.

12 You have already granted us access to the sugar

13 mills and to the treatment ponds. We will be pulling

14 water samples, but the sediment samples are more

15 valuable to us, and I think that it is a sort of a

16 cribbed reading to somehow now say we can't have

17 access for sediment. We can go in and get waters from

18 the treatment ponds, but we can't get sediment from

19 the treatment ponds.

20 There has been a high level of anxiety on the

21 part of the petitioners about our entry, and the

22 United States has made multiple efforts to do certain

23 things to alleviate that.

24 It is really largely a one-time entry. We are

25 going in the first time, pulling the water, pulling

26

1 the sediment and the grab samples. Unless I am

2 mistaken I believe our hexane phase samples are really

3 ongoing over three months.

4 I have revealed my parameters, and I have put my

5 expert on the stand, as you will recall, and I have

6 also put him on the telephone with their experts to

7 explain his testing methodologies, so that they would

8 understand what he was testing and how he was testing

9 for it, and we spent an hour and a half one evening on

10 the phone going back and forth. They explained their

11 methodology. We explained our methodology.

12 I have made numerous efforts to meet their needs,

13 to relieve anxiety. I have agreed to do GPS site

14 markings and put bicycle flags so they will know

15 exactly where we went. I have agreed that if there is

16 any dispute regarding a site that we are pulling a

17 water sediment or anything from when we go on their

18 land we will leave the land immediately and come back

19 to you to resolve it, but we will not press our rights

20 at that point on the land.

21 So I think this is a minimal invasion, certainly

22 far less than what they have asked for. It is

23 reasonable and justified by the information that we

24 will obtain.

25 The final issues I don't need to argue, because

27

1 you said you would deal with it.

2 So I would ask you to grant me access to Mr.

3 Pope's property and to allow me to pull sediment

4 samples. I think that's really where the dispute

5 lies.

6 HEARING OFFICER: Okay, is it all of the

7 petitioners who are objecting on the sediment samples,

8 or are there different positions amongst the

9 petitioners?

10 MS. PONZOLI: Well, I don't think Mr. Hoffman had

11 a particular objection on the sediment, although I

12 could be wrong. I think it was the two petitioners

13 who have sugar mills.

14 HEARING OFFICER: All right. Let's start with

15 the last site. Mr. Hoffman?

16 MR. HOFFMAN: Yes, sir, Your Honor. As I

17 understand it there were several sites. The dark

18 green is supposed to be the Fruit and Vegetable

19 people, and the names are on these sites, and

20 apparently this is the site. Of course, "this" on the

21 record being nothing, I can't, up here near Pahokee is

22 the best I can for the record.

23 HEARING OFFICER: The furthest north of the

24 green?

25 MR. HOFFMAN: Yes, sir, and in some

28

1 correspondence I was asked to provide access to a

2 Township and Range which Mr. Pope doesn't own, and I

3 have provided that and haven't had a response to that.

4

5 Secondly, the only testimony in the case is

6 Mr. Pope's deposition, in which he testified that he

7 grows corn, only sweet corn, and he grows most of it

8 actually by leasing land on the South Bay site,

9 actually from South Bay Corporation. He also owns a

10 couple hundred acres in the northern piece of the

11 green in the 298 Drainage District, and the testimony

12 is there is only one pump that covers that property

13 that is owned by the District, not him, and pumps the

14 water into the lake. So there is no systematic method

15 of water going out.

16 So he does not believe that there is any

17 relevance, and I don't either, to checking what's on

18 his property if it does not result in something that

19 goes through the works of the District that we are

20 trying to have the STAs there. That's what the case

21 is about.

22 HEARING OFFICER: Let me ask you a question. The

23 other dark green square that is in the first belt, is

24 that another 298?

25 MR. HOFFMAN: I don't think so. My clients are

29

1 anxious. They are damned anxious, because the U.S.

2 Government has been in there before, and they have

3 told me they have done tests underneath the tank and

4 then have gone on and filed prosecution against them.

5 We don't, you know, they don't trust the U.S.

6 Government. "We're from the U.S. Government. We're

7 here to help you." That's the old joke. It is no

8 joke to these people, and that's why I object to it.

9 I don't see any big deal by looking at some of

10 this, but it is irrelevant.

11 I think it's a joke that somebody asked, "Why is

12 he worried if his water doesn't flow south," like it

13 has something to do with standing. These people are

14 going to be taxed millions of dollars to pay for this

15 project, and I think these farmers down there, he

16 could lose the right to farm down there.

17 There are a lot of other things to do with

18 standing other than water flow. I think that's the

19 most silly comment I have ever heard.

20 So I would just like to strongly object to taking

21 data from up here where it is not material or relevant

22 to the case, and I think our clients have good reason

23 to be anxious. That's all I have to say about it.

24 HEARING OFFICER: Ms. Ponzoli, in the first belt

25 are there other 298 sites in there?

30

1 MS. PONZOLI: I would assume the argument from

2 all petitioners would be the same as to the 298

3 District.

4 I will tell you quite honestly that unless

5 Mr. Green has another site he wants to offer, because

6 I believe the Cooperative does own property in there,

7 U.S. Sugar has been rather cooperative in providing

8 sites that were away from the lake.

9 I think that Mr. Pope if he is here, he should be

10 participating to the same extent that everyone else

11 is. Frankly I need a northern site in order to effect

12 my distribution in the places where I have gone.

13 All of that area around him will be the 298.

14 Under the Marjory Stoneman Douglas Act he only pays

15 for what he contributes to the water.

16 Mr. Hoffman made an interesting comment when he

17 said it was the only systematic method of discharging

18 water, that one pump. I think it is fairly clear it

19 is very difficult to hold water in any location in

20 Florida, and it flows south, so his water is flowing

21 to the extent that one pump is not pumping it into the

22 lake.

23 I think this is the same argument on the Bryant

24 Mill. I mean, I think it is exactly the same

25 argument. They are here. They say they are impacted.

31

1 We say they are part of the process. We want to look

2 at the phosphorus. We want to look at what is going

3 on. I have done everything the United States can do

4 to relieve their anxiety.

5 HEARING OFFICER: Mr. Hoffman, it seems to me

6 that if Mr. Pope has decided to participate actively

7 in the case, which he has obviously, then he has

8 opened the door to discovery. If there are particular

9 problems as Ms. Ponzoli has indicated, if they can go

10 out underneath the tanks or whatever like he is

11 complaining about, she has indicated she will halt it,

12 and we can come back and deal with it then.

13 I think the request is framed in terms of trying

14 to deal with separate belts and getting a reasonable

15 sampling in each of the belts which was appropriate,

16 and it seems like a reasonable approach to me.

17 So I am going to grant the request. If there are

18 particular problems we will take it up again.

19 All right. Sediment samples.

20 MR. BURGESS: Your Honor, this of course is

21 Ms. Kavanaugh's issue, and she apologizes for not

22 being here today. She was the attorney for the Ray

23 family, and she is at the funeral. She has asked me

24 to address the remaining issues.

25 With respect to the sediment samples and the

32

1 locations, I don't think that our interpretation is

2 indeed a strained interpretation at all. The language

3 at paragraph seven on page eight clearly says that

4 sediment samples will be collected from secondary

5 canals and field ditches. It says nothing about

6 holding ponds and canals surrounding the mills.

7 The meetings, the many meetings that have taken

8 place between ourselves and the United States on these

9 issues were designed with the experts' intendence to

10 discuss these very issues, where they wanted to go and

11 what they wanted to do, and allow us to go back and

12 discuss where they wanted to go and what they wanted

13 to do on these private lands with our clients.

14 We have every step of the way interacted with our

15 clients with respect to things that we could agree to

16 and things we could not agree to, and it was at 4:30

17 yesterday afternoon for the first time that I was told

18 or that we learned on this side of the table that

19 indeed their language, secondary canals and field

20 ditches, also meant holding ponds surrounding the

21 mills.

22 So I am not prepared as I sit there today to say,

23 although I tried to contact my clients, to say that

24 they would have no objection to incorporating these

25 areas. I think it is something I need to discuss with

33

1 my clients and perhaps a consultant.

2 There are issues that are raised by them taking

3 sediment samples there.

4 For instance, with respect to the holding ponds

5 it is my understanding those holding ponds are

6 monitored by DER, the groundwater is monitored by DER

7 on a continuous basis, and there is certainly as I

8 know of no state water quality standard for the

9 holding ponds. What they get out of there may not be

10 relevant to the proceedings. I think though what this

11 change in interpretation or what they want to do does

12 do, it points up the need for some protection language

13 in the order.

14 Perhaps if you are going to order that they are

15 allowed to sample sediments in these other areas, then

16 the universal protection that we are advocating, that

17 while they can use the results of these tests for any

18 and all purposes within this proceeding, that for any

19 attempt to use those results or this data or

20 disseminate it outside of the proceeding needs first

21 to be brought back before Your Honor, and I would

22 argue that should you allow them to do that, that data

23 and all the other data needs to be subject to the

24 protection for this very reason.

25 HEARING OFFICER: Well, on all of these discovery

34

1 issues the thing that I keep trying to come back to to

2 understand is what is the interests that you are

3 seeking me to protect?

4 I have a hard time understanding why if they are

5 going out to the property and taking water samples,

6 going in and taking sediment samples is any more

7 onerous.

8 MR. BURGESS: Well, I don't think that taking

9 sediment samples is any more onerous. I think that's

10 not the issue we are arguing.

11 With respect to, there may be the relevancy

12 argument to make, but it may be more properly made at

13 the time of attempting introduction into evidence in

14 the case, but simply as they said they think these

15 areas are a hot bed of nutrients, my clients don't

16 want to wake up the next morning after they get the

17 lab results and read in the headlines in the Miami

18 Herald about the cesspool situation that exists with

19 respect to nutrients.

20 It is private land. It is private land, Your

21 Honor, and I think that to the extent that they are

22 allowed to take these and use them for all purposes in

23 this proceeding that when we get the data, and we will

24 get the data at the same time, and we assert to them a

25 proprietary or trade secret or other type of interest,

35

1 the issue simply needs to come back before Your Honor.

2 Their proposed language allows them to use this

3 data for any reason dealing with public health,

4 safety, or welfare. Well, that's just simply too

5 broad for us. We would like Your Honor to be the

6 arbiter of what constitutes public health, safety, and

7 welfare before they are allowed to use it.

8 If Your Honor is going to allow them to take a

9 sample, we think it points up a need for the universal

10 protection.

11 HEARING OFFICER: Okay, so it is just really

12 going back to the same issue we had before?

13 MR. BURGESS: Yes. It has been briefed.

14 HEARING OFFICER: Mr. Green, do you have anything

15 further?

16 MR. GREEN: No.

17 HEARING OFFICER: Mr. Hoffman, do you have

18 anything on this point?

19 MR. HOFFMAN: We would agree with the need for

20 protection for the same reasons I expressed before.

21 HEARING OFFICER: Okay. Ms. Ponzoli?

22 MS. PONZOLI: We have argued sediments, and I

23 understood you to have granted us sediments and

24 granted sediments for sugar mills and the water for

25 quite some time.

36

1 I guess the only thing I would say on the

2 protective order, Mr. Menton, is that they have never

3 offered good cause and have never offered a protective

4 interest.

5 If this Court wants me to assure it that I am not

6 going to take the lab results and run to the press, I

7 will give them that assurance. That is no problem.

8 They have trusted me for two months with

9 documents that we are going to argue as to whether I

10 should have to return them or not. They have trusted

11 me for two months not to run to the press. I think

12 they know I am not going to do that. I think that is

13 not a very valid argument for good cause or protective

14 interest.

15 HEARING OFFICER: Okay. Well, Mr. Burgess, if

16 there is some additional objection beyond the

17 protective order issues that you have after you talk

18 to your clients, then discuss it with Ms. Ponzoli, and

19 if we need to take it up we can take it up in a

20 telephone hearing, but otherwise it seems to me that

21 issue really is assumed in the protective order issues

22 which I will study further in the next few days.

23 MR. BURGESS: Your Honor, the parties have

24 exchanged draft orders, and these orders contain

25 paragraphs dealing with, it is not an all encompassing

37

1 protective order, but it deals with the issues

2 providing some protection.

3 Perhaps we should submit those as draft proposed

4 language for your consideration.

5 MS. PONZOLI: Well, we have agreed on certain

6 elements of it. I have no problem with submitting

7 them to you.

8 HEARING OFFICER: Do you want to do that

9 separately, or do you want to do that when you work

10 out...

11 MR. BURGESS: I guess we can reach agreement on

12 all the paragraphs we can and submit any additional

13 language proposed.

14 HEARING OFFICER: Submit any alternatives you

15 might propose and the particular paragraph.

16 MS. PONZOLI: Right.

17 HEARING OFFICER: And that way we will

18 incorporate the protective order into the access

19 issues, which is probably the easiest way.

20 MR. BURGESS: Okay.

21 MS. PONZOLI: We are very close. I think it will

22 be no problem. I think you should be able to enter an

23 order from what we submit to you in the agreement. I

24 don't think we will have to argue anything.

25 HEARING OFFICER: Very good. Okay. That takes

38

1 care of the access issues. What is the situation with

2 the privileged documents that petitioners have sought

3 return of? Is that still a dispute?

4 MR. BURGESS: Yes, Your Honor, and my partner,

5 Bob Blank, will handle that.

6 (WHEREUPON, MR. REID ENTERED THE HEARING ROOM.)

7 HEARING OFFICER: Mr. Blank, welcome. New face.

8

9 MR. BLANK: These were documents that were

10 produced pursuant to a production of documents in

11 connection with the deposition of George Wedgworth,

12 President of the Sugar Coop, and was a member of the

13 Sugar Cane League up until May of 1991. These are all

14 documents that we are asserting work product over.

15 HEARING OFFICER: As I understood one of the

16 issues was the question of whether there was an

17 attorney-client relationship at the time they were

18 produced, and that I guess was not clear from what I

19 read. That has been a problem in the return, is that

20 right, Ms. Ponzoli?

21 MS. PONZOLI: The issue is there is no

22 attorney-client relationship when they are turned

23 over. It is clear that Mr. Wedgworth ceased to be

24 represented by the firm of Peeples, Earl and Blank a

25 long time ago.

39

1 The really critical issue, Mr. Hearing Officer,

2 is Mr. Wedgworth ceased to be represented by Peeples,

3 Earl and Blank sometime prior to that cutoff date when

4 the Cooperative left the League.

5 That relationship severed from all appearances

6 rather dramatically. He withdrew his financial

7 support. It was not a happy parting.

8 But I could not determine that date, because that

9 would be the date in which had Mr. Earl's firm

10 released documents to Mr. Wedgworth there could be no

11 privilege. He was a third party as of that date.

12 The problem that has occurred is that I cannot

13 obtain that date either from the law firm of Peeples,

14 Earl and Blank or from the law firm of Hopping, Boyd,

15 and Green, and so until I have that date I think our

16 legal analysis is up against the wall. They have

17 failed to meet the burden.

18 HEARING OFFICER: Let me make sure I understand.

19 We are talking about there is a document, just talking

20 about one document?

21 MR. BLANK: We are talking initially, Mr. Menton,

22 about seven documents. The seventh document on the

23 list, which was a memorandum dated February 28, 1991,

24 we have determined was disseminated to other parties,

25 and we are not seeking to assert privilege over that

40

1 document.

2 The other six documents we are asserting

3 privilege.

4 HEARING OFFICER: We are talking about six

5 documents, and the dates, I guess as I understand the

6 dispute there is a question over the dates that these

7 documents were prepared, whether in fact there was an

8 attorney-client privilege that existed, are all six

9 documents, who were they prepared by, and how do they,

10 I mean, I have read the motion, but it has been a

11 while. MR. BLANK: Well, some of those were

12 prepared by counsel, and some of them were prepared by

13 the League itself in consultation with counsel. They

14 were in many cases agendas for litigation, strategy

15 meetings.

16 HEARING OFFICER: Okay. Now wouldn't it be

17 critical then to establish that privilege existed to

18 be able to verify there was in fact an attorney-client

19 relationship, or else there was no privilege?

20 MR. BLANK: Well, we think the argument that the

21 United States is making with regard to the dates upon

22 which the Coop withdrew from or ceased its financial

23 contribution to our firm's fees is irrelevant. The

24 relevant date is when the Coop withdrew from the

25 League.

41

1 At that point in time clearly there would be no

2 privilege, but up until that time there was a League

3 privilege which we don't think the Coop has the right

4 to waive in the context of the document production.

5 MS. PONZOLI: Excuse me. He has framed the

6 issues the way they believe the issues should be

7 framed. That is a fair representation by Mr. Blank.

8 The United States believes it is just all wrong.

9 Mr. Wedgworth was very clear both in his

10 deposition and in his discussion surrounding the

11 deposition that he ceased to be represented by this

12 law firm at some point in time. The man simply said,

13 "I can't recall the date. You will have to get it,

14 you know, another way. I don't remember what the date

15 was."

16 But he withdrew his financial support. I believe

17 the law fully supports that you cannot force someone

18 to be represented when they have said, "You are not my

19 counsel, I will not pay you, and I will not be

20 represented by you."

21 Therefore, he was not represented by Peeples,

22 Earl and Blank. From that point forward, and they

23 cannot force representation upon him simply because

24 his Cooperative belonged to a trade association called

25 the Florida Sugar Cane League, and sometime downstream

42

1 withdrew its membership from the Florida Sugar Cane

2 League. They can't force representation upon

3 Mr. Wedgworth, Wedgworth Farms, and the Cooperative.

4 HEARING OFFICER: Well, but as a matter of

5 association of law though if he is still a member of

6 an association and there was a judgment entered

7 against the association wouldn't that have been

8 binding on him unless he had formally withdrawn?

9 For example, if Mr. Blank had sued the

10 association for fees and Mr. Wedgworth was a member of

11 the association and had not formally withdrawn,

12 wouldn't he have been subject to a judgment for any

13 fees that were assessed against the association?

14 MS. PONZOLI: I don't think so, because it seems

15 from their bylaws they had a rather unusual situation,

16 and I have not done discovery into those bylaws. In

17 fact, when I tried to do discovery on this Mr.

18 Wedgworth was sort of pulled out and came back with a

19 lack of memory.

20 MR. GREEN: I object to that characterization.

21 MS. PONZOLI: Well, they were responsible, they

22 were processors who belonged to a certain part of the

23 League, and they paid money, and they were responsible

24 for counsel, and they made the decisions for counsel.

25 It would appear from the minimal discovery that I

43

1 have had in this area that quite honestly when he

2 withdrew his money he withdrew all participation, and

3 he shortly thereafter at some point downstream just

4 withdrew completely.

5 I think that what we have here, Mr. Hearing

6 Officer, is an ongoing problem regarding the candor of

7 the parties' identities and counsel.

8 If you will recall at the beginning of this whole

9 SWIM challenge process, the issue of the production of

10 federal documents came up, and I said that all of

11 these parties had been represented by Peeples, Earl

12 and Blank, and I had given my million plus documents

13 from all these agencies, and they said, "Some things

14 our people weren't named petitioners," and we sort of

15 went round and round. Mr. Hearing Officer, I have

16 produced all of those documents a second time on the

17 assumption that they were not represented by Peeples,

18 Earl and Blank, because that was sort of a fuzzy

19 representation that seemed to come out here, and now

20 it seems that it comes back, and they are represented

21 by Peeples, Earl and Blank.

22 I believe the standard under the Parkway case is

23 fairness. It is a fairness test.

24 I think they failed that first because they were

25 not candid in the initial discovery about who

44

1 represented whom and at what time. I think they have

2 failed to be candid now regarding the date of who

3 represented whom and at what time.

4 I believe they should have to come forward with

5 that date, and we can sort it out, and I think if the

6 date somehow shows that they had an argument as to the

7 privilege I would ask you to view the documents in

8 camera before deciding.

9 MR. BLANK: To some extent, Mr. Menton, we may be

10 arguing about things that are not really crucial. We

11 are attempting to find out the actual date that

12 Mr. Wedgworth determined that he wasn't going to pay,

13 contribute to the League in terms of payment of our

14 fees, and I suspect that date is going to be

15 subsequent to all of the documents that we are talking

16 about here.

17 There are a couple of documents that are undated,

18 and we are trying to find out the dates of those

19 documents, also, but again our assertion of privilege

20 goes to the League, and that is the privilege we are

21 seeking to maintain, and it is our position that the

22 dates are actually irrelevant, but as a practical

23 matter when we find out it may turn out to be it

24 doesn't matter which regard to the actual documents.

25 HEARING OFFICER: Well, generally I think my

45

1 analysis would be to look at the issues in terms of

2 when the actual withdrawal from the League took place,

3 because I think as a matter of association of law,

4 barring some unique aspect of the association bylaws,

5 that would be the controlling date for legal purposes.

6

7 I do recall, however, what Ms. Ponzoli has

8 pointed out, early on in this case, that we had this

9 discussion regarding the documents that have been

10 produced and who they were produced to.

11 I haven't sat down and tried to chart out the

12 exact dates of what was said when and all that, but I

13 did find that a little bit troublesome in reading her

14 response, that there was the indication at one point

15 that

16 Mr. Wedgworth or some group of parties had claimed

17 they had not had all the documents produced, but now

18 they have a different date in terms of turning to

19 decide when the privilege terminated.

20 I guess that is a little bit troublesome to me.

21 I don't know how that falls out. I haven't sorted

22 that out.

23 Are we talking about different dates here?

24 MR. BLANK: I don't think we are talking about

25 different dates for the purposes of document

46

1 production. That's a totally different issue. We

2 have maintained all along they do not have to produce

3 anything they have already produced.

4 MS. PONZOLI: I have had to produce them to

5 Mr. Wedgworth's new attorneys. That's the problem. I

6 had to produce them to the new set of attorneys,

7 because, either, well, I don't know. I have had to

8 produce them the second time, and it appears that I

9 produced them to Mr. Wedgworth under the present

10 theory previously, and now I have had to produce them

11 to

12 Mr. Wedgworth and the Cooperative a second time, and I

13 think that is really sort of an unfair situation, and

14 I think it's a problem, and I will tell you that

15 henceforth I don't think I should have to do that two

16 times.

17 MR. GREEN: I guess we are getting pulled into

18 this discussion. I think Ms. Ponzoli originally

19 objected to producing federal documents to our

20 request, saying that she had produced them to the

21 League. Is that fair?

22 And I said, "Well, that's all interesting, but we

23 are not representing the League. We don't have the

24 documents. It is a different case. I don't know what

25 documents were produced. I don't know who decided

47

1 what documents were relevant."

2 In fact, the case there was a federal lawsuit,

3 not the SWIM plan challenge.

4 We haven't been through the documents and picked

5 out the things we think are relevant to the case in

6 any event, and I think Your Honor correctly did not

7 bar production of the government's documents in light

8 of that circumstance.

9 As a factual matter I suspect the productions

10 that Ms. Ponzoli is talking about that were made to

11 the League probably occurred after Mr. Wedgworth

12 ceased to be represented by the Peeples, Earl law

13 firm. I don't know the answer to that question.

14 HEARING OFFICER: I don't, either.

15 MR. GREEN: I really don't know. It's a

16 different proceeding.

17 MS. PONZOLI: Oh, I would be so happy if it were

18 a different proceeding, Mr. Hearing Officer. If we

19 could just separate that federal lawsuit and all of

20 that discovery and all of that, that would be the

21 happiest position that has occurred in this

22 proceeding, but we know it is not.

23 HEARING OFFICER: Okay. I don't know that it is

24 productive to continue on in this discussion any

25 further.

48

1 Mr. Blank, as I understand what you are saying

2 you are trying to get information, and it may be that

3 all these issues are...

4 MR. BLANK: We'll meet with counsel and see once

5 we do find out the dates if it is still a problem, and

6 we can bring it back to you. We would like to

7 resolved prior to the continuation of Mr. Wedgworth's

8 deposition.

9 HEARING OFFICER: Which is scheduled...

10 MS. PONZOLI: I believe Mr. Wedgworth will

11 probably be done in mid-January, so we may need a

12 telephone conference.

13 HEARING OFFICER: No problem. Let me, I wasn't

14 sure if you were saying a minute ago when you were

15 asking me to review these in camera whether there is a

16 question if they qualify as privileged documents

17 anyway. Are we just talking about dates, or is there

18 some dispute over...

19 MS. PONZOLI: I think there could be questions on

20 some of that as to whether they are privileged or not,

21 and so, you know, the date issue has obviously been

22 critical in my analysis, and since I have been

23 unsuccessful in obtaining an answer to it, that is, I

24 would like the date first, and then I will ask you to

25 review them.

49

1 If I would get the date rapidly, then I would

2 make my analysis based on that at that time and then

3 seek you to review them in camera. Obviously I have

4 not, and obviously they have not.

5 They have never asserted or explained their

6 privilege vis a vis the documents. I might ask them

7 to do that.

8 MR. BLANK: Up until now we never really knew it

9 was an issue. We will be happy to do that.

10 HEARING OFFICER: Okay. Well, see if you can

11 pull the dates together. It may moot the whole thing.

12 If it doesn't, let's have a conference call.

13 MR. BLANK: Okay.

14 MS. PONZOLI: Okay.

15 HEARING OFFICER: Welcome, Mr. Reid.

16 MR. REID: Thank you. I'm sorry.

17 HEARING OFFICER: No problem.

18 MR. REID: They canceled it and then miraculously

19 found another airplane.

20 HEARING OFFICER: We have discussed a couple of

21 issues that you are involved in, one of which is the

22 motion for return of privileged documents that have

23 been filed by the District. There is some discussion

24 that that is not right. Others have not seen that.

25 MR. REID: I hope we can work it out. After what

50

1 you have said today perhaps we can.

2 And we had a motion to compel the Richardson

3 documents, and then what we are going to do on that is

4 wait for the production order from the United States

5 which is coming soon, and see where we stand.

6 HEARING OFFICER: Okay. So we will put that off.

7 Okay. I guess the only remaining issue is the

8 economic issue, is that right?

9 All right. What do we want to do on that? Do we

10 want to take that up now, or do we want to take a

11 lunch break and come back, or what?

12 MR. FITZGERALD: Mr. Hearing Officer, there is a

13 matter of the United States' motion to compel

14 discovery that has not been addressed but which, if

15 fully briefed, I believe that is a very discrete and

16 rather short one.

17 (WHEREUPON, MR. REID AND MR. GUEST LEFT THE

18 HEARING ROOM.)

19 MR. BURGESS: Failure, I am not sure what we call

20 this in the administrative arena, but it alleviated a

21 lot of this discussion, but I would be happy to

22 discuss these matters for the first time if counsel

23 want to present it.

24 (WHEREUPON, MR. GUEST ENTERED THE HEARING ROOM.)

25 HEARING OFFICER: All right. Which one is this

51

1 again?

2 MR. FITZGERALD: This is the United States'

3 motion to compel discovery from the Sugar Cane League,

4 U.S. Sugar Corporation, and New Hope South, based on

5 their raising 10 or 12 global objections to the

6 request for production originally filed by the United

7 States and the United States' interrogatories.

8 We asked in the motion to compel for more

9 complete answers to the interrogatories and also

10 object vehemently to the League's attempt to

11 characterize one of our interrogatories as being in

12 effect some 120 interrogatories instead of one, which

13 naturally has some effect on the calculation of the

14 available interrogatories to everyone.

15 That is probably the most discrete and easiest

16 way to address that, I imagine.

17 The League inserted its sixth objection to

18 Interrogatory No. 2, that it was not one count but

19 120.

20 What we asked was that the League provide to us

21 the basis for their dispute with certain positions in

22 the SWIM plan as laid out in paragraph 82 of their

23 first amended petition.

24 In the first amended petition, Mr. Hearing

25 Officer, they subcategorized that by giving

52

1 subparagraphs (a) through subparagraph (d)(k).

2 (WHEREUPON, MS. REIMER LEFT THE HEARING ROOM.)

3 It is over 100 odd, I suspect probably near 120,

4 and rather than go through the same ridiculous

5 exercise of demanding the basis for each of those

6 claims and an identification of the basis for their

7 dispute, we asked, and there was substantiation in the

8 interrogatory, "Tell us the basis for your claim in

9 paragraph 82 that the SWIM plan is useless and nothing

10 but drivel," and they have made no effort to provide

11 any answer whatsoever but said, "It is 120

12 interrogatories, so we will not answer."

13 Paragraph 82 of the first amended petition, now

14 paragraph 69 of the seconded amended petition, set

15 forth 40 questions of law and ultimate facts by the

16 League, and presumably they raise the same issue

17 there.

18 We pointed out in our initial filing and

19 indirectly on response that if in fact that assertion

20 stands, that there would be no effective way for the

21 United States to try and determine what truly are the

22 issues here. Our view from the outset of this case is

23 that there are ridiculous numbers of designated

24 witnesses and a ridiculous number of material facts

25 supposedly in contention and conclusions in

53

1 contention.

2 (WHEREUPON, MS. REIMER ENTERED THE HEARING ROOM.)

3 The discovery process should be designed to

4 winnow that down to where we can give you a wild guess

5 as to what the final hearing will look like in terms

6 of time and witnesses.

7 The interrogatories were the mechanism to reach

8 that. It has become clear, although hazily so, in

9 even the limited number of depositions conducted thus

10 far that many of the people are unnecessary for

11 witnesses in the case, and some who might otherwise be

12 necessary and more than likely easily even amongst

13 this group be handled through prefiled testimony and

14 stipulations in the stip or prehearing stipulation, or

15 we will drop out of the case, but we have no true

16 ability to focus unless we begin to give answers and

17 also receive the documents we requested in our notice

18 for production.

19 The essential argument raised by the League and

20 other parties who have joined into this is that we

21 are, the United States is aligned as a

22 respondent/intervenor and is not entitled to an

23 independent, effectively an independent access or

24 mechanism for receiving documents it feels are

25 appropriate to review.

54

1 We were looking for documents that would reflect

2 a scientific and factual basis for the assertions in

3 their various iterations of the facts, and the claim

4 that that should not be permitted because of our

5 limited status is one we have addressed.

6 (WHEREUPON, MR. REID ENTERED THE HEARING ROOM.)

7 You clearly in our view in the October 30th

8 hearing rejected that, and we feel the same objection

9 raised in that regard has to be summarily disposed of.

10

11 They also raise general objections, including

12 privileged communications. Now that we have reached

13 some kind of agreement we would assume as a result of

14 that agreement that we will receive the privileged

15 list for all of the documents otherwise identified.

16 We can't challenge it, because we don't know. We

17 can't figure out which means anything. Once we see

18 that list I may need to address it further.

19 The League objected because of the way we defined

20 petitioners, and essentially their concern there and

21 one we think is invalid because of the way they

22 defined the employees of the United States is that

23 they ought not to be required to provide documents

24 that would be otherwise responsive that are in the

25 care, custody, or control of employees of their

55

1 various entities or of the trade associations.

2 Yet in their claim against the United States for

3 production of documents they give the identical

4 undertaking by saying the federal government was the

5 employer and meant as the employer we had to cough up

6 the documents. We essentially did that. As Ms.

7 Ponzoli points out, we have done it more than once.

8 We have a recurrent demand here.

9 (WHEREUPON, MR. HOFFMAN LEFT THE HEARING ROOM.)

10 It would be unreasonable to say the documents

11 held by the entities or corporations would not have to

12 be produced if they were otherwise responsive when

13 they are corporate entities with standing to pursue

14 this matter, unless the United States or another

15 respondent or respondent/intervenor filed an

16 individual request with every one of those employees.

17 That is a task that far exceeds anything any

18 party should have to assume, such as this, when in

19 fact those are fully within the control and custody of

20 the corporate or public entities or trade

21 organizations, that a certain standing on behalf of

22 all of those exists. We don't accept their argument

23 in that regard is appropriate.

24 That is exclusive of the issue of expert

25 documents, which we have addressed separately and is

56

1 the subject of ongoing discussions.

2 We believe that you should enter an order

3 requiring more full and appropriate responses to the

4 demand for production and interrogatories and address

5 as well the issue of the number of interrogatories.

6 We understand fully the normal rule in Florida

7 and the federal court that one would count subparts of

8 an interrogatory to mean as a countable interrogatory,

9 but because of the fashion in which the League chose

10 to couch their petition that would be unreasonable in

11 light of this case, and if you would otherwise be

12 troubled by adopting a contrary position we would

13 request as we did in our pleading that you grant us

14 additional interrogatories to the extent that we can

15 pose one as to each one of those subparagraphs of the

16 material or erroneous facts which underlie their

17 petition.

18 HEARING OFFICER: Okay.

19 MR. BURGESS: Your Honor, as I attempted to point

20 out at the beginning I think this is problematic,

21 because there was no attempt to discuss this before

22 they filed a motion to compel.

23 MR. FITZGERALD: That's not correct. I am sorry.

24 The individual in our office who was handling this in

25 fact discussed it with representatives of Mr. Burgess'

57

1 law firm, and...

2 MR. BURGESS: I would like to know who, because

3 my staff has informed me, and there is no attestation

4 that any of these discussions took place, and I think

5 some of these almost trivial discovery disputes should

6 not be taking up the time before there is an attempt

7 between counsel to resolve them.

8 HEARING OFFICER: Well, let me make a couple of

9 points. I think a lot of the global objections we

10 have talked about before. Everybody puts in a global

11 objection, you know, kind of a CYA type thing, but the

12 issue of the number of interrogatories, there is no

13 doubt that they are entitled to get a specific answer

14 as to the basis for each of these specific allegations

15 in the petitions, and I think everybody ought to work

16 under that assumption.

17 MR. BURGESS: We do not disagree with that. The

18 fact is the subject matter of the number of

19 interrogatories each side was going to have was a

20 lengthy subject discussed when we negotiated discovery

21 and the scheduling order, and I think certainly from

22 our side when we negotiated that number with the

23 understanding of what Florida case law was concerning

24 subparts of interrogatories that if they are willing

25 to expand by 120 the number of interrogatories they

58

1 have available to them, well, then it should not just

2 be available to them but should be across the board.

3 They knew and had the original petition when we

4 sat down and negotiated the discovery order what

5 paragraphs were contained and what interrogatories

6 they might want to relate, and we certainly were aware

7 of the case law regarding subparts.

8 So if it's a situation where they want to amend

9 the order to allow them to have more interrogatories

10 and more discovery, then that ought to apply across

11 the board.

12 Their definition of substantiate, which is a

13 three-part definition in their section, necessitates

14 us to answer three different questions with respect to

15 40 material facts, so ergo 120 interrogatories that

16 they asked in one question. That's not fair.

17 HEARING OFFICER: Well, I think it is fair to get

18 an idea as to what the basis for the allegations are

19 and to try to narrow what issues there are in dispute.

20

21 It may be as you begin to sit here and look at

22 the case you don't need or you are not going to

23 continue to assert a number of the issues in the

24 petition, and that's exactly what discovery is

25 supposed to try to narrow down.

59

1 So I think it is critical that they have the

2 opportunity to understand which issues actually will

3 be at issue in this case and what the basis for those

4 allegations are, and I think that's fundamental.

5 Now in terms of the numbers, if either party

6 finds they need additional numbers of interrogatories,

7 then I will sit down and look at them. I don't think

8 you ought to be wasting your interrogatories on

9 trivial or irrelevant issues and just being

10 burdensome, but I don't find a request to substantiate

11 the basis of the crucial allegations to be burdensome.

12

13 So, you know, I think those need to be answered.

14 If you find you need more, bring it to me. If

15 you can show me that they are reasonable, I will give

16 them to you.

17 But I don't think we need to get into global

18 objection issues. Those are the kinds of things you

19 should be able to work out. I mean, I think everybody

20 understands that those are put in basically to protect

21 themselves in case you have an employee that has

22 documents you didn't know about and then it comes out

23 later, but most of the time those documents have

24 already been produced by somebody else, anyway.

25 The global objection issues I think we don't need

60

1 to waste time on.

2 Okay. Are there any other specific matters that

3 you think need to be addressed in connection with

4 this?

5 MR. FITZGERALD: Mr. Hearing Officer, if I hear

6 you correctly then you are ordering that they respond

7 whether they want to count them as 120 or whether they

8 want to count them as one as we did, and that they

9 will provide as well on the second portion of ours the

10 documents that are responsive if they are held by

11 employees, agents, etcetera, as defined by the

12 petitioners?

13 MR. BURGESS: No.

14 MR. BURGESS: Have we not addressed that?

15 MR. BURGESS: We have not addressed that. I have

16 addressed it by way of a global objection, and we

17 haven't gotten a ruling on it.

18 MR. FITZGERALD: I hear global objection, they

19 don't cut it here. That's what I heard last month.

20 HEARING OFFICER: Well, I guess what I am saying

21 is that the documents that fall within the categories

22 that are appropriate, I mean, they ought to be

23 produced, and I guess the global objection, if I am

24 understanding it, the definition of including all

25 employees, you are not objecting to producing the

61

1 documents...

2 MR. BURGESS: Not on behalf of the employees.

3 HEARING OFFICER: You don't know how many

4 employees you have or where they are or whatever?

5 MR. BURGESS: I am not objecting to producing

6 documents in the possession of employees, but their

7 definition of petitioners, Your Honor, is two parts.

8 We don't have a problem with the first part, but we

9 have a problem with the second part.

10 They say petitioner refers to the specific

11 individual, entity, business association, trade group

12 joined of record in DOAH Case Nos. which this request

13 for production is propounded to. That's all of us on

14 this side of the case. Those are the parties for

15 purposes of entry and access that have available land.

16 (WHEREUPON, MR. KILLINGER LEFT THE HEARING ROOM.)

17 In that we don't have a problem. But then they

18 go on to say, "Petitioners shall include the

19 constituent entities," whatever that is,

20 "...employees, officers, Directors, shareholders,

21 partners, or representatives of all of those entities,

22 plus persons acting on or purporting to act on behalf

23 of all of those employees, and in addition its

24 attorneys, whether appearing of record in this matter

25 or not, unless privileged."

62

1 Now we declined to provide documents pursuant to

2 their definition of petitioners. What we have

3 produced are the documents of the entities of record

4 in this case and the employees of the entities of

5 record in this case.

6 I think that they are surreptitiously perhaps

7 trying to get at what was clearly, more clearly

8 enunciated last night in a response which we received,

9 a reply to our response in opposition, which for the

10 first time talks about seeking documents from members

11 or people who work for member organizations.

12 The League, talking about a trade association, is

13 a trade association, nonprofit trade association. The

14 League has 60 to 70 some odd members.

15 The membership list changes periodically. They

16 have asked for documents going back five years for the

17 League, and we have provided them with respect to the

18 named parties.

19 If they are trying indirectly to force me to

20 produce on behalf of the members of the League for 60

21 or 70 years, if I don't possess those documents, if

22 they are out of my custody, protection, or control, I

23 can't produce them.

24 They have the opportunity to take if they want,

25 to attempt to get those directly from parties that may

63

1 have them. If they are indirectly trying to put that

2 responsibility on me, I don't think they can do it. I

3 have some case law I can cite to the Court.

4 HEARING OFFICER: Mr. Fitzgerald, did you have

5 any response?

6 MR. FITZGERALD: Yes, sir. In discussing this

7 with Mr. Ponzoli, the inconsistency argument generates

8 with respect to what we just heard about Mr. Wedgworth

9 and his documents, but I will leave that aside for the

10 moment, because we can address it after the other

11 events occur related to those.

12 It seems to me that what you are hearing is a

13 further version of a shell game that emerged at the

14 outset of the case.

15 You heard about who represented who and when and

16 the implication of that for discovery, and now if I

17 understand counsel we should go out and drop subpoenas

18 or requests on each of the members of the Florida

19 Sugar Cane League, despite the fact that the League

20 purports to represent their interests in this case,

21 and it is not even an issue of counsel saying it is a

22 matter of them not having responsive documents or that

23 they can't query the members or they can't acquire

24 them, but it is, "We won't." That doesn't seem to be

25 an adequate response.

64

1 HEARING OFFICER: Okay. This is a problem in

2 dealing with global objections. We talk about

3 discovery disputes in the abstract, and I am not sure

4 what we are talking about or even if there is a

5 dispute.

6 I think what has to be done when dealing with an

7 association or a government entity is I think you have

8 to make a reasonable solicitation to make sure you

9 have all of the documents that are responsive to the

10 discovery request, and I think that is expected of all

11 parties. I would hope that that is the way that

12 everybody has been operating.

13 MR. FITZGERALD: There is one thing that sort of

14 makes this a little bit misleading, Mr. Hearing

15 Officer. We have a definition in a preliminary

16 section, as all parties have done in the various

17 requests for documents and interrogatories, but then

18 you read that into the specific request that comes

19 thereafter, what you are looking at, so we are not

20 asking for a global solicitation of all members of

21 these organizations. It is, "Do you have these

22 specific categories?"

23 So when you read the two you are looking at a

24 much narrower field.

25 So I think you are absolutely correct it is not

65

1 unreasonable to get some kind of review, and then if

2 there is arguably some legal barrier to them or

3 revokable barrier, maybe it is something that is

4 privileged, whatever, they come back with that, and

5 then we can talk about it.

6 Saying, "We don't like the definition, so we are

7 not going to give you anything," we can't even start

8 with that.

9 HEARING OFFICER: Well, you can start with it,

10 and I would hope you are producing documents that are

11 in your custody and control, and I guess the bottom

12 line is I would expect that there would be

13 communication between the League and its attorneys

14 essentially saying, "We are producing all of the

15 documents for any other matters that are responsive to

16 the discovery requests," and then just let us know,

17 and we will take them up if we need to, whether or not

18 they are within the scope.

19 All right? Does that resolve those issues for

20 now?

21 Again it is hard to deal with discovery in the

22 abstract when we are talking about global objections.

23 We don't know if there are any documents that are in

24 fact not being produced.

25 MR. BURGESS: Well, that's because they were

66

1 aimed at our objections and not the specific

2 categories.

3 HEARING OFFICER: All right. Does that leave us

4 now just with the economic issues?

5 MR. BURGESS: I think that's it.

6 MR. FITZGERALD: I believe so.

7 HEARING OFFICER: Let's take a break before we

8 start. Do we want to do that before lunch, or do we

9 want to take a lunch break?

10 MS. PONZOLI: Let's do lunch.

11 HEARING OFFICER: Do you want to take a lunch

12 break? Okay. We'll come back about, we'll come back

13 at 1:15.

14 (WHEREUPON, THE HEARING WAS RECESSED FROM 11:50

15 A.M. TO 1:22 P.M., AT WHICH TIME MR. KILLINGER WAS PRESENT

16 IN THE HEARING ROOM, AND MR. BURGESS AND MR. HOFFMAN WERE

17 ABSENT FROM THE HEARING ROOM.)

18 HEARING OFFICER: Okay. Before we get into this

19 economic issue let me see if I can make a couple of

20 observations to at least focus the discussion a little

21 bit on where we will go today.

22 It is pretty clear this economic issue is a

23 pivotal issue in the case, in looking at the position

24 of all the parties.

25 I have read what everybody has filed so far, but

67

1 I am not sure I am prepared today to resolve all of

2 the issues that have been raised.

3 Clearly some of the issues, like Mr. Hyde's

4 jurisdictional issue and the Constitutional issue, is

5 clearly beyond my jurisdiction.

6 In addition some of the other issues are, I think

7 I need more time to reflect on and try to put these

8 into focus.

9 I am not sure we even need to get into some of

10 them, and I think that's why I wanted to make a couple

11 of observations at the outset.

12 It seems to be that the best way to really come

13 at this issue is to put it in the context of the whole

14 proceeding, and from that perspective one of the

15 things that occurred to me in reading the pleadings of

16 the various parties that filed was that there really

17 was not a whole lot of discussion of the Hazen and

18 Sawyer report and how that came into play, and I would

19 like to kind of bring us to that issue at the outset

20 to kind of use it as a springboard to try to get into

21 some of the other issues.

22 (WHEREUPON, MR. BURGESS ENTERED THE HEARING

23 ROOM.)

24 I am not clear exactly what the status of the

25 Hazen and Sawyer report is or how it comes into play

68

1 in this proceeding, but it seems to me in trying to

2 view the statute and the role of this hearing, this

3 120.57 proceeding, within the statutory frame that had

4 the Hazen and Sawyer report been adopted and been made

5 part of the SWIM plan at the time that the final SWIM

6 plan was adopted, I don't think there is any doubt in

7 my mind that I would have, that I would be willing to

8 go forward and take a look at the issues that are

9 raised in the context of the Hazen and Sawyer report,

10 irrespective of whether or not that was required for

11 the Water Management District to look at and what the

12 statutory requirements were.

13 If that's the way the Water Management District

14 decided to go about adopting a plan, I think it is

15 clearly within the context of what my jurisdiction

16 would be in the context of this case.

17 But from what I understand and in reviewing the

18 documents, that's not what happened.

19 There is a reference in the SWIM plan to the

20 future adoption of an economic impact analysis, and I

21 take it that is what the Hazen and Sawyer report

22 ultimately became.

23 There is a, as I look at that reference it would

24 appear there was an intention that the economic

25 analysis was going to be incorporated as part of the

69

1 SWIM plan. That raises some question in my mind as to

2 how that fits in within the confines of Chapter 120,

3 Florida Statutes, and specifically I guess the

4 provisions of 120.57(1)(b)(3), which at least as I

5 have always understood it once the case has been

6 transferred from an agency over to the Division of

7 Administrative Hearings to handle, then the ability of

8 the agency to take further action with respect to that

9 particular matter is restricted to the confines of the

10 litigation itself.

11 So I don't really know what the intent of the

12 Florida Water Management District was with its

13 reference in the SWIM plan to that provision.

14 I have not at this time seen any motion to amend

15 the SWIM plan or a motion to remand for the Water

16 Management District to go back and incorporate the

17 Hazen and Sawyer report.

18 I have seen references in some of the pleadings

19 to the "optimal plan", and I don't know exactly what

20 that is or how that comes into play, and again I have

21 some questions as to how that fits in within the

22 context of the APA and this 120.57 proceeding.

23 So I think those issues struck me right at the

24 start, that I wasn't quite clear how the Hazen and

25 Sawyer report has been disposed of and where it is and

70

1 what the intent of the Water Management District is

2 with respect to the Hazen and Sawyer report, and I

3 think that particular issue will give us a starting

4 point to get into some of the other matters.

5 So, having said that, I will give each of you an

6 opportunity to comment, and I do have some particular

7 questions that came to mind with respect to the

8 arguments that the various parties have made on, for

9 example, Mr. Green's argument regarding the moderating

10 provisions of the water quality standards.

11 I would like to put those on hold for