1 STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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 NOS.

10 ) 92-3038

SOUTH FLORIDA WATER MANAGEMENT DISTRICT, ) 92-3039

11 ) 92-3040

Respondent, ) (Consolidated)

12 )

and )

13 )

MICCOSUKEE TRIBE OF INDIANS, THE UNITED )

14 STATES OF AMERICA, FLORIDA DEPARTMENT OF )

ENVIRONMENTAL REGULATION, and FLORIDA )

15 WILDLIFE ASSOCIATION, )

)

16 Intervenors. )

) _____________________________________________

18 HEARING BEFORE: HONORABLE J. STEPHEN MENTON

HEARING OFFICER

DATE: FRIDAY, FEBRUARY 19, 1993

20 (11:00 A.M. - 12:18 P.M.)

21 LOCATION: HEARING ROOM 2, DESOTO BUILDING

1230 APALACHEE PARKWAY

22 TALLAHASSEE, FLORIDA

23 REPORTED BY: SUE HABERSHAW JOHNSON

CERTIFIED COURT REPORTER

24 REGISTERED PROFESSIONAL REPORTER

NOTARY PUBLIC

1 APPEARANCES:

2 Representing Petitioners, Sugar Cane Growers

Cooperative of Florida, Roth Farms, Inc.,

3 and Wedgworth Farms, Inc.:

4 WILLIAM H. GREEN, ESQUIRE

GARY PERKO, ESQUIRE

5 Hopping, Boyd, Green & Sams

123 South Calhoun Street

6 P. O. Box 6526

Tallahassee, Florida 32314

7 (904-222-7500)

8 Representing Petitioners, Florida Sugar Cane

League, Inc., United States Sugar Corporation,

9 and New Hope South, Inc.:

10 RICK J. BURGESS, ESQUIRE

Peeples, Earl & Blank, P.A.

11 One Biscayne Tower, Suite 3636

Two South Biscayne Boulevard

12 Miami, Florida 33131

(305-358-3000)

13 -and-

WILLIAM L. HYDE, ESQUIRE

14 Peeples, Earl & Blank, P.A.

Suite 350

15 215 South Monroe Street

Tallahassee, Florida 32301

16 (904-681-1900)

17 Representing Petitioners, Florida Fruit and

Vegetable Association, Lewis Pope Farms,

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

Hundley Farms, Inc.:

TERRY COLE, ESQUIRE

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

Suite C

21 2700 Blair Stone Road

Tallahassee, Florida 32301

22 (904-877-0099)

1 Representing Respondent, South Florida Water

Management District:

PAUL L. NETTLETON, 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:

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:

KEITH HETRICK, ESQUIRE

14 DONNA LA PLANTE, 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:

KEN WRIGHT, ESQUIRE

20 111 South Martin Luther King, Jr., Blvd.

P.O. Box 1329

21 Tallahassee, Florida 32302

(904-681-0031)

* * * * *

1 INDEX _____

2 ITEM PAGE ____ ____

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

4 HEARING CONCLUDED . . . . . . . . . . . . . . . . . . 59

5 CERTIFICATE OF REPORTER . . . . . . . . . . . . . . . 60

6 * * * * *

1 PROCEEDINGS

2 (WHEREUPON, THE HEARING COMMENCED AT 11:00 A.M.)

3 HEARING OFFICER: All right. Let's start by taking

4 attendance, beginning with the petitioners for the

5 League.

6 MR. BURGESS: Rick Burgess and Bill Hyde.

7 HEARING OFFICER: Okay. For the Coop?

8 MR. GREEN: Bill Green and Gary Perko.

9 HEARING OFFICER: For the...

10 MR. COLE: Fruit and Vegetables, Terry Cole.

11 HEARING OFFICER: Okay. I didn't recognize you.

12 You are a new one. Okay. For the respondents, South

13 Florida Water Management District?

14 MR. NETTLETON: Paul Nettleton.

15 HEARING OFFICER: And the U.S. Government?

16 MS. PONZOLI: Suzan Hill Ponzoli and Tom Watts

17 Fitzgerald.

18 HEARING OFFICER: For DER?

19 MR. HETRICK: Keith Hetrick, Donna La Plante.

20 HEARING OFFICER: For any of the environmental

21 groups?

22 MR. WRIGHT: Ken Wright for the Sierra Club.

23 HEARING OFFICER: All right. Just a couple of

24 preliminary matters. I got called late yesterday about

25 trying to set this up for a telephone hearing, and I

1 have no problem with that. I just need to have a little

2 bit more notice.

3 We only have two hearing rooms, and they are

4 smaller rooms that are equipped with speaker phones, and

5 both of those were committed, and I could not locate the

6 people to see if we could adjust the room.

7 So if you, I wasn't able to do it, but if you can

8 give me enough notice we can schedule these, and I think

9 probably to everyone's benefit we could do a lot of this

10 by telephone and wouldn't need to have everyone come up.

11 I am sure you would be very happy to save the Frequent

12 Flyer miles in the last few years.

13 The second thing I wanted to mention was according

14 to the discovery schedule that we had entered before,

15 this was the last prehearing conference that we had a

16 firm date for. I know at the last hearing we had

17 discussed the new hearing date and also the new

18 schedule. I don't know if anyone has taken an attempt

19 to try to draft that, and maybe we should take a little

20 bit of time and think about that, or perhaps we could

21 discuss it amongst yourselves, but I don't know that we

22 need to have a specific number of prehearing

23 conferences. We seem to have diminished numbers today.

24 We seem to be losing interest with everyone.

25 We can have those, you know, full-blown conferences

1 when necessary if you want to build a couple of them in,

2 or just do updates for some, or however you want to do

3 it. I am flexible on that. Any thoughts on those

4 matters?

5 MR. NETTLETON: Mr. Hearing Officer, we prefer to

6 keep a regularly scheduled status conference with the

7 option obviously to cancel them or whatever sufficiently

8 ahead of time, just because it fits into the schedule

9 and because of the way people are running around doing

10 depositions.

11 At least you know what's out there and when it is

12 going to be, as opposed to maybe something comes up, and

13 we might have problems. At least we would know a

14 conference would be coming.

15 HEARING OFFICER: How frequently do we need to

16 know? It seems like we have done a lot of the major

17 issues that have come about.

18 MS. PONZOLI: I think we got into discovery

19 problems. Those are sort of like building discovery,

20 discovery disputes are building, so it may be useful.

21 Maybe they can be reduced to telephone calls. That's a

22 possibility. I don't know.

23 I think, it seems to me you have moved a number of

24 issues pretty well, so unless it is a problem to you, I

25 think it has actually worked well for us.

1 HEARING OFFICER: Mr. Green?

2 MR. GREEN: Mr. Menton, I thought at least for

3 today my opinion was the issues that will be brought to

4 you could have been handled by phone. Of course, it is

5 convenient for us. We can just drive over here.

6 For the folks from south Florida it may be if you

7 kept a day aside a month or whatever, as Mr. Nettleton

8 is suggesting, if you kept a room with a

9 teleconferencing facility that might turn out to be a

10 substitute that would save the other parties effort, but

11 either way it is fine with the Coop.

12 HEARING OFFICER: The only problem with the rooms

13 with the telephones is if I reserve one of those, they

14 are pretty small, and if everyone shows up we may be out

15 the doors. We would not be able to get everyone in.

16 Mr. Hyde or Mr. Burgess, did you have anything

17 you wanted to add?

18 MR. BURGESS: Yesterday's situation was where I

19 was going to attempt to attend by telephone. I think

20 Bill was going to come over, and it is easy for him to

21 come over.

22 I think we probably should reserve a day a month,

23 and then if we don't need it we can make arrangements,

24 or at least just reserve the day, and then if we need

25 only half a day that may be the case.

1 HEARING OFFICER: All right. We'll just pick one

2 day a month, and I will set it aside, and if it looks

3 like, like this week we could see there were not that

4 many issues pending, so if you notice that in advance

5 and let me know, then I can set up a hearing, do it in

6 a smaller one. Give me notice.

7 We will just pick one day a month to set aside to

8 do just the routine maintenance that seems to come up

9 regularly in this case.

10 And as far as the discovery schedule and the new

11 hearing date, I don't know if anyone has undertaken to

12 try to prepare an order that would set forth the

13 agreement that you have reached in terms of discovery

14 and also set forth the new hearing date.

15 I think that we probably need to get one put

16 together, so if someone wants to draft that and

17 circulate it and see if we can get agreement on it,

18 and if not we can take it up at the next hearing and

19 resolve any differences.

20 MS. PONZOLI: We can circulate a draft.

21 HEARING OFFICER: Ms. Ponzoli has volunteered.

22 MR. GREEN: I will volunteer with her.

23 HEARING OFFICER: I figured you would want to

24 have a say in it as well.

25 Okay. As part of that I think we also need to

1 address the consolidation issue. The last time we

2 discussed that, as I understand it, the general

3 consensus is that the hearing should be

4 contemporaneously, although we will have to do

5 separate orders in terms of the permitting issues. I

6 think it's proper to include that within the new

7 schedule.

8 One other issue that has come up and was pending

9 was the motion to enlarge the time to respond. That

10 was Mr. Saxe's. Mr. Saxe is not here today. I don't

11 have a problem with that. I don't know if you are

12 familiar with it, but tell him to just let me know

13 when they reach an impasse and are unable to resolve

14 it, and he can submit his response at that time. Then

15 I will resolve it when I get all the pleadings in.

16 MS. PONZOLI: Thank you.

17 HEARING OFFICER: There is still two pending

18 motions on the return of privileged documents that

19 were inadvertently produced. I don't know what the

20 status of those is. Last time people had indicated

21 that there may be some resolution. Where do we stand

22 on that? Do we need to take those up again, or have

23 the documents been returned?

24 MS. PONZOLI: They have not been resolved, and we

25 discussed what we will discuss today, and frankly I

1 don't think it has come to anyone's mind, so I for one

2 am not prepared to argue that.

3 HEARING OFFICER: So it is obviously not...

4 MR. GREEN: That's correct. Ms. Kavanaugh is not

5 here, and she would have wanted to address that if she

6 thought it was coming up.

7 MR. BURGESS: We can represent we will try and

8 resolve that before the next hearing, and if not we

9 will have a hearing, or we can decide now it will be

10 on the agenda for the next hearing.

11 MS. PONZOLI: That's fine.

12 HEARING OFFICER: I have a list of unresolved

13 issues, and it is still sitting there, so at some

14 point we need to get that resolved one way or the

15 other.

16 MS. PONZOLI: We will clear it up the next time

17 or before the next time. Whatever.

18 MR. NETTLETON: Is one of those motions from the

19 District?

20 HEARING OFFICER: One is from the District, and

21 there is one...

22 MR. NETTLETON: I thought there was.

23 HEARING OFFICER: And there was also one from the

24 League.

25 MR. NETTLETON: I am not sure what the status is.

1 I think it may be moot. We may decide to withdraw it,

2 but I will need to confer further with them. I

3 believe that is no longer at issue.

4 HEARING OFFICER: Okay. As far as I know the

5 only other outstanding issue was relating to the U.S.

6 access to the Everglades?

7 MR. FITZGERALD: One more that we are pretty

8 much, about 85 per cent, in agreement on, and that was

9 the U.S. second motion to compel for the follow-on

10 motion to compel, expanded or supplemented responses

11 to the initial request for the production of documents

12 and the first set of interrogatories.

13 If you recall in December we discussed that. We

14 came back with a follow-on which was argued by

15 agreement of the parties. Mr. Burgess and I have

16 conferred on that, and I think we have...

17 MR. BURGESS: There is one outstanding issue.

18 MR. FITZGERALD: He needs clarification on

19 something.

20 HEARING OFFICER: Okay. I thought that one had

21 been resolved, but if it hasn't then do you want to

22 take that one up first? That is probably the simplest

23 one to resolve.

24 MS. PONZOLI: I also have an ore tenus issue that

25 the others are aware that I would bring before the

1 Court.

2 HEARING OFFICER: Okay, why don't we resolve this

3 one between Mr. Burgess and Mr. Fitzgerald, and then

4 we will go to the U.S. access issue, and then we will

5 deal with the ore tenus situation. Those are the only

6 three issues that we have to deal with today, is that

7 correct?

8 MR. GREEN: That's correct.

9 HEARING OFFICER: Okay. Mr. Burgess?

10 MR. BURGESS: Yes, Your Honor. I am looking for

11 my notes.

12 MR. FITZGERALD: Would you like to use mine?

13 MR. BURGESS: No, thank you. The issue that I

14 would like addressed, Your Honor, concerns the

15 companion request for production issues raised in the

16 United States' motion to compel, and it really was

17 raised in their reply to our response in opposition to

18 their motion to compel discovery.

19 At the December hearing we argued certain issues

20 regarding the scope of interrogatories and the number

21 of interrogatories, and those were ruled upon, and Tom

22 and I have reached agreement on how we will respond

23 further to those interrogatories.

24 But frankly with respect to the request for

25 production we spoke yesterday afternoon and we were

1 unable to reach agreement.

2 Looking back at that December transcript, the

3 United States raised in their reply filed on December

4 17th, the day before the hearing on the 18th, that we

5 had not produced documents on behalf of all the

6 members of the Sugar Cane League, and frankly that

7 fact was not in their motion to compel.

8 As I said, it was raised the evening before the

9 hearing in their reply to our opposition.

10 The word members does not even appear in their

11 definition of petitioners in their request for

12 production when they asked for documents. They say

13 that petitioners should supply documents of not only

14 their employees, officers, and constituent entities,

15 whatever that means.

16 We in filing our document responses objected to

17 the definition and said, "Here are the documents on

18 behalf of the petitioners, the League, U.S. Sugar, and

19 New Hope South, the employees and officers thereof,"

20 but we declined to provide documents on behalf of or

21 pursuant to their definition of constituents.

22 Frankly at the December hearing I probably should

23 have asked for an opportunity to brief that issue, and

24 that is I think what we are asking for now.

25 Your ruling has never been reduced, so we really

1 didn't have the opportunity to do a request for

2 rehearing, had it been reduced to an order.

3 But in producing the documents that we have

4 produced, what the League didn't do is go to its 80 to

5 125 members, depending upon the year, for the last

6 five years, and that is what they have requested, from

7 1987 to present, really six years, and they have

8 requested the production of such documents as all

9 documents which reflect the land use, including type

10 of use, crop yield, acres harvested, total production,

11 soil depth, and location by legal description and

12 recorded map coordinates for each tract, field, or

13 parcel in agricultural use by the petitioners in the

14 EAA for the period 1987 to date. That's No. 8.

15 No. 9 is all documents which reflect by legal

16 description and county the properties within the EAA

17 in which petitioner has a property or operational

18 interest indicating the nature of the interest,

19 including but not limited to fee, lease hold, options

20 to lease, options to purchase, etcetera, for the

21 period of 1987 to date, and there are other similar

22 requests.

23 Where that information, such as land use and crop

24 yield and acres harvested, is deposited at the League

25 and aggregated and composited in charts, those charts

1 have been turned over, but what we haven't done,

2 because we don't think we have the legal obligation,

3 is to go for the last five or six years to the 80 to

4 125 members and secure all this information.

5 We don't think the law provides or obligates us

6 to do it, and we would like the opportunity to brief

7 that issue.

8 It is a simple issue. We can have briefs filed

9 next week and have it decided.

10 The order I think, and I don't want, there wasn't

11 an order, I shouldn't misspeak, but Your Honor's

12 comments when it came up, as I said, more or less on

13 the side issue was that on page 62 of that December

14 transcript you said, "Well, you can start with it, and

15 I would hope you are producing documents that are in

16 your custody and control," and I am representing these

17 with respect to the named entities and also the

18 members, "...and I guess the bottom line is I would

19 expect that there would be communication between the

20 League and the attorneys essentially saying, 'We are

21 producing all of the documents for any other matters

22 which are responsive to the discovery request.'"

23 And then just let us know, and we could take them

24 up whether they were within the scope.

25 I think I am representing that we have made that

1 production similar to the request for entry and access

2 where they are only going on the lands of the named

3 entities and petitioners, and we have provided those

4 documents for the named petitioners and for the

5 members if they have deposited them with the League.

6 I would like, although it is not a Florida case,

7 it is a United States District Court case in Oregon,

8 1988, I will cite it for the record, "Oil Heat

9 Institute of Oregon vs. Northwest National Gas", where

10 the District Court held a nonprofit trade organization

11 was not required to produce information that was

12 solely within the custody or control of the individual

13 members. That's what you have here, a nonprofit trade

14 organization.

15 MR. FITZGERALD: The cite?

16 MR. BURGESS: Yes, 123 FRD, page 640, 1988.

17 The nonprofit trade organization, consisting of

18 108 heating oil dealers and 24 appliance service

19 companies and tank installers, explained that it had

20 provided copies of all the documents in its

21 possession, custody, or control, but it argued that it

22 was not required to produce any information that was

23 solely within the control of custody of the individual

24 members and not readily available to the organization.

25 The Court ruled the trade organization did not

1 have possession or custody, and the only issue was

2 whether they should be deemed to have control of the

3 requested items just because it represents the member

4 organization.

5 The Court ruled that they did not.

6 In addition, the Court said there was no evidence

7 that Northwest National Gas cannot obtain the

8 requested information directly from the member

9 organizations.

10 I think, I realize I raised that last time, and I

11 believe that's the law, that they have the right or

12 obligation if they choose to try to seek to obtain

13 that information from the member organizations, but to

14 put that onus on us, when although we represent them

15 it is not in our custody or control, I don't think is

16 the law, and we would like the opportunity to brief

17 that issue for Your Honor.

18 HEARING OFFICER: Okay. I guess it comes within

19 the scope of custody or control. One of the issues

20 last time that I have a concern about is if there are

21 member organizations who are not necessarily named

22 entities in this case but they have undertaken studies

23 or scientific investigations on behalf of the League,

24 then certainly I think that falls within the scope of

25 the discovery request, even if they aren't a named

1 entity. That's what I wanted to make sure that

2 everybody has an understanding that it is covered.

3 MR. BURGESS: Okay. We understand that. My

4 objection really was more to the information that I

5 read into the record with respect to the harvest and

6 the types of crops and the lands for the last three

7 years.

8 HEARING OFFICER: I would agree with you that

9 seems to be overbroad when you start talking about

10 individual members of the League who are not

11 necessarily named plaintiffs, and you start talking

12 about yield rates or how they do these. I will give

13 you an opportunity to respond to that, and I do have a

14 concern about that, but I think that is overly broad.

15 I am not sure how you can tie that into the issues of

16 this case.

17 MR. FITZGERALD: There are several points,

18 Mr. Hearing Officer.

19 First, I don't think it is appropriate to try and

20 draw a parallel or a similarity between this issue and

21 the issue of entry upon land, as counsel has sought.

22 The decision not to permit entry on land for

23 testing purposes in the EAA for land held by other

24 than those entities who are named entities was tied

25 very closely to the notion of the relatively highly

1 intrusive nature of such an activity onto private

2 lands for entities that are secondarily involved in

3 the suit.

4 I think we have to recognize under the law

5 applicable to DOAH hearings that the whole notion of

6 standing of the trade organization contemplates and

7 recognizes the secondary nature of that relationship.

8 Were it not for the interests of the constituent

9 entities of the trade organizations, the trade

10 organizations I submit would have no capacity of

11 demonstrating the necessary standing, and the case law

12 is pretty clear on that.

13 So there is a relationship of those secondary

14 parties.

15 Now when we discussed in December, the point was

16 raised I suppose to a degree it would extend to the

17 Coop as well, they should not have the obligation of

18 going back on people or entities that have been

19 associated as part of the record for 50 to 60 years to

20 acquire records that would be responsive, and clearly

21 the secondarily involved entities will not have

22 information responsive to the entire gamut of

23 production requests that the United States has filed.

24 They likely have done very little independent

25 study. It was done by the entity or by the two big

1 players, and I would point out New Hope South to a

2 lesser degree and certainly U.S. Sugar Corporation are

3 the two organizations behind those, looking at the

4 Flo-Sun organization as the true party in interest for

5 New Hope South, you've got well over 50 per cent of

6 the sugar cane acreage in the EAA controlled by those

7 two entities, so while Mr. Burgess is referring to

8 something on the order of 80 to 105 members, there

9 must be first some redundancy in what we have seen in

10 the relatively limited categories that apply.

11 I notice he has focused on primarily land usage

12 and location issues and interests. Those are germane

13 because of the 201 factual allegations made by the

14 League and its allied parties and by many of the other

15 very broad spectrum claims asserting Second Amendment

16 petitions.

17 This is not a very intrusive mechanism.

18 I have gone through the documents produced by the

19 Florida Sugar Cane League, and it does not include

20 that information. In fact, I may be wrong on this, I

21 would have to look specifically, but I do not even see

22 a comprehensive listing of their membership.

23 We specifically raised the issues in December of

24 the possibility of the United States and its

25 associated parties in defense of the SWIM plan

1 undertaking to individually seek these documents from

2 every one of the entities in the EAA who are

3 benefitting from the presence of the League and the

4 Coop, and now you are talking a significant burden, a

5 burden unwarranted, given the relatively nonintrusive

6 nature of the request, the small volume of documents

7 from the people.

8 HEARING OFFICER: But the request he read, at

9 least that particular one, and I don't have it in

10 front of me to know what it entails, but at least that

11 one you are talking about any documents relating to

12 the field production over the last five or six years.

13 MR. FITZGERALD: It said five, but it is six now.

14 You may have a concept that we are talking about huge

15 agricultural operations. That's not the case.

16 HEARING OFFICER: But the definition of any

17 document relating to the field production for a

18 particular farm, that could include anything, couldn't

19 it?

20 MR. FITZGERALD: It doesn't, because in the

21 industry there is not a lot. We have seen from the

22 documents that they have provided for U.S. Sugar and

23 New Hope South and such the Sugar Cane League might

24 have, they are not extensive documents for a period

25 that short.

1 We would be satisfied if they provided or implied

2 to those definitions the same meanings they have

3 utilized in responding.

4 They have not objected that those were overbroad.

5 That was not the basis. They have responded.

6 We are reasonably satisfied with the documents

7 they have been given for the farming interests that

8 are directly named parties in the case.

9 We are not asking for more from the secondary

10 parties than we are from the main, and it is not a lot

11 of material.

12 The production figures, because these are very

13 small entities. They are not 100 people or entities

14 in the EAA farming 20 and 30 thousand acres. The

15 average farm according to all of the economic

16 information that they want to restrict this case to

17 says the average farm out there is about 3,000 acres.

18 In fact when you look at large entities, like

19 Flo-Sun and U.S. Sugar, a few of the others, you find

20 the average is well under a thousand acres, and we are

21 not talking about a great deal of records of a

22 particularly onerous burden.

23 The small operators can produce these easily,

24 because in our experience and based on the depositions

25 we have taken so far of the fact witnesses of these

1 petitioners who are knowledgeable in the area this is

2 the type of information these people have at their

3 fingertips. It is very easy to acquire. They need

4 it. They use it all of the time. It is germane to

5 their cropping patterns.

6 HEARING OFFICER: I think we are getting a little

7 bit ahead of ourselves. I was hoping we could resolve

8 this without getting into all of this, but it seems I

9 will need to look at it more closely. I don't have it

10 in front of me now, the particular document request,

11 and I haven't looked at the case law.

12 So I guess we will have to postpone this until we

13 have an opportunity for you to put down your positions

14 in writing, and I will take a look at it.

15 I was hoping we could avoid having to go through

16 a briefing process, but it doesn't sound like we can.

17 At least in terms of that document request, the

18 only thing we are arguing about is as it relates to

19 the non-named members of the League, their obligation

20 to produce documents that are set forth in the United

21 States' request, second request for document

22 production. Is that right?

23 MR. BURGESS: The first request.

24 MR. FITZGERALD: It is our first request, but

25 there were two issues. That is correct. That's one

1 of them.

2 The other is, it has perhaps already been

3 resolved, and that was the League was asserting it did

4 not have to provide the same scope of discovery and

5 documents to the United States in this case because of

6 their perception at that time, which I think we got

7 around, that we were in some secondary or poor

8 relation role...

9 HEARING OFFICER: Because you are the intervenor?

10 MR. FITZGERALD: Yes.

11 HEARING OFFICER: I think we talked about that

12 before.

13 MR. FITZGERALD: But I cannot tell you,

14 Mr. Hearing Officer, because I have not seen those

15 supplemental responses, whether the League has in fact

16 now abided by your ruling that we are full party

17 status in terms of discovery, even as an intervenor,

18 and I think you have made that abundantly clear in

19 numerous statements.

20 That is also why we need a supplement of the

21 interrogatories. Your ruling in this area in December

22 was very clear, that to the extent the general

23 objections were utilized by a party to not respond

24 fully to some interrogatories, they needed to go back

25 and supplement, and as Mr. Burgess and I have

1 discussed I think we have resolved that he is going to

2 do that, but until now we have seen nothing.

3 We asked in our second motion to compel for a

4 date certain for all of these things, because we are

5 stymied in our discovery.

6 The League did not turn this information over to

7 us. I dislike having to go through another round of

8 briefings on this, because I believe that issue was

9 briefed in our first go-round on the motions to

10 compel, and it requires a ruling from you if we are or

11 are not going to be entitled to have as you said then

12 in December the League attorneys go to their

13 constituent entities, which they know, and I think a

14 fair reading is it is 80 to 100, whatever the number

15 might be, and say, "Do you have them," and produce

16 them. I don't know any amount of briefing that will

17 change that much.

18 HEARING OFFICER: Okay. I am not sure. It seems

19 to put about three different issues together here, and

20 I am trying to figure out exactly which need to be

21 resolved.

22 MR. BURGESS: The only one is the one that we

23 have addressed this morning. I have agreed with

24 respect to the interrogatories.

25 We answered our interrogatories with the preface

1 that notwithstanding the objections and without

2 waiving the objections petitioner responds as follows,

3 and then we had a hearing where they raised the

4 general objections as a predicate for our not

5 answering.

6 That wasn't in fact the case. We did answer. I

7 have agreed within two weeks to tell Tom what answers

8 may have been different if those objections had not

9 stood at the time they were first answered, and so we

10 are going to make that...

11 HEARING OFFICER: So you have an agreement in two

12 weeks then?

13 MR. FITZGERALD: On his interrogatories, yes.

14 HEARING OFFICER: So then just to make sure I am

15 clear, the only issue outstanding is the one that you

16 are talking about before, which is the...

17 MR. BURGESS: Obligation of the League...

18 HEARING OFFICER: Non-named members of the League

19 to respond?

20 MR. BURGESS: To the discovery, correct.

21 MR. FITZGERALD: That's the production request.

22 The interrogatories we resolved. The production,

23 there were two issues raised. The secondary party

24 documents is the one. The other is they asserted as a

25 defense or an objection to total production that the

1 United States was in a secondary role. I have nothing

2 saying, you know, I want a supplement saying, "Okay,

3 we recognize you are fully empowered to conduct

4 discovery in the case," and we have provided from New

5 Hope, the League, and the U.S. Sugar Corporation

6 everything that you have requested in your request for

7 production, the initial request, and we are not

8 withholding anything on the basis of this theory that

9 you are not fully entitled.

10 HEARING OFFICER: Well, I think I made clear I

11 did not agree with the theory that they were not

12 entitled to full discovery. I don't know.

13 MR. BURGESS: I don't know of any document that

14 would be withheld on that basis. We treated it as one

15 of the general objections which Your Honor spoke about

16 as not being a bar to the discovery of production in

17 discovery. I don't know of anything that was withheld

18 on that basis.

19 MR. FITZGERALD: It is the first time I have

20 heard that. They can put that in their supplemental,

21 and that's fine. We were entitled to be assured of

22 that.

23 HEARING OFFICER: Now we are down to the one

24 issue. All right. Let's see if we can get briefs

25 filed before the next hearing and get it resolved.

1 Okay?

2 The next will the United States' access on the

3 EAA.

4 MR. HYDE: Mr. Menton, we don't have a next

5 hearing date. Do you have an open date in mind?

6 HEARING OFFICER: Well, I would assume...

7 MS. PONZOLI: I will let you know.

8 MR. BURGESS: Preferably before the night before.

9 HEARING OFFICER: It will be sometime in mid-

10 March or later, I would assume. That should give you

11 ample time to address that issue with briefs.

12 MS. PONZOLI: Do you want me to leave blanks in

13 the order, and you will fill in the actual, like you

14 did the previous briefs for each month?

15 HEARING OFFICER: Yes, I will look and see what

16 we have and fill them in.

17 MR. COLE: In doing that we normally, Ken and I

18 or somebody else could handle it, but just as you are

19 doing it, Ken and I are going to the ACC tournament on

20 March 11 and 12.

21 MS. PONZOLI: Okay. I've got that. I think he

22 was going to do it. I wasn't.

23 HEARING OFFICER: Actually if there are dates

24 that are not available, please make a notation,

25 "Please don't choose those," and list those out, and I

1 will use it.

2 MR. FITZGERALD: Mr. Hearing Officer, on the

3 discovery issue, once the two briefs are in we can

4 probably handle that by phone and in very short order.

5 HEARING OFFICER: That's fine. As far as phone

6 conferences, if there are a couple of parties

7 involved, it is kind of a hit-or-miss thing with my

8 secretary. If I am available I will take them, any

9 time.

10 Okay. You were starting to say something about

11 dates?

12 MS. PONZOLI: No, no, I think you are reading my

13 mind.

14 You had been more or less picking a Friday

15 towards the end of the month in each month, and there

16 was sort of a regularity, and they were coming up

17 about every four weeks or so. That has worked I think

18 really pretty well if you can continue to follow that

19 pattern.

20 Fridays generally on our deposition schedule,

21 while they may be grim, they are not the grimmest.

22 Wednesdays are usually the grimmest, the worst in the

23 middle of the week.

24 So to the extent that pattern will work for you

25 it will probably work well for the largest number of

1 us.

2 HEARING OFFICER: Okay. All right. Now on the

3 access issue.

4 MS. PONZOLI: On the access issue, we spent quite

5 a long time on the phone, and the order that I asked

6 them to send forward to you...

7 HEARING OFFICER: I did receive it. I have not

8 had a chance to study it in detail.

9 MS. PONZOLI: That's fine. I think it will

10 certainly need a map attached to it, and I am still

11 waiting for the petitioners to get back to me that

12 that map in fact is totally accurate as to their

13 clients' property.

14 I think when I submitted them that previously I

15 maybe colored the wrong half of a few of them, and I

16 would like the map to be accurate, so they will get

17 back to me, and in the final draft of the order you

18 will have an accurate one.

19 I believe with the exception of the protection

20 regarding the data it has been agreed to, so unless

21 Mr. Green or Mr. Burgess or Mr. Cole has a problem I

22 don't think there is anything to be disputed other

23 than what type of restriction on the data you place.

24 HEARING OFFICER: And that would be paragraph

25 D-2, -3 and -4?

1 MS. PONZOLI: Right. Right.

2 HEARING OFFICER: Are those the only ones?

3 MS. PONZOLI: Is that accurate? Are we in

4 agreement to the prior?

5 MR. HYDE: Yes.

6 MR. GREEN: I have three issues that are not big

7 deals that I just wanted to mention. One I think we

8 agreed, that split samples may be taken. I want to

9 make sure that was clarified.

10 MS. PONZOLI: Well, we agreed to provide split

11 samples on water, but there are actually some pretty,

12 there are some specifics. The League agreed to send

13 their own representative to handle their splits, and I

14 have agreed in regard to the limited number of splits

15 that the Cooperative is seeking to the extent they

16 impose no large burden that we will handle it for

17 them. Is that all?

18 MR. GREEN: That's correct.

19 MR. COLE: And we would also request that. It is

20 a large number, and we can work it out with you.

21 MS. PONZOLI: All right. And I can add wording

22 to that effect. I have no problem with that. I don't

23 know what the other two issues are.

24 MR. GREEN: Well, the second one is the use of

25 the word on the top of page three, the first words,

1 holding pond. I think I suggested that wording.

2 MS. PONZOLI: Right.

3 MR. GREEN: After discussing with the client they

4 considered them to be treatment ponds. I don't know

5 if that matters to anybody, so long as we understand

6 what we are talking about.

7 MS. PONZOLI: Sure. I think we were thinking of

8 the same pond.

9 MR. GREEN: Right, and then the last, I had a

10 question this morning from Mr. Ward whether there was

11 a provision in there for notice, advance notice with

12 regard to visits, and we have talked about dates for

13 March that we are trying to work out and the following

14 months, and I don't think there is a provision in here

15 that speaks to that. If we can all sort of agree that

16 we'll have reasonable notice...

17 MS. PONZOLI: We can add wording that there will

18 be reasonable notice. I have assured the Court and

19 the petitioners I am not going on anyone's property or

20 my scientists are not going on anyone's property

21 without this type of notice and without an escort. I

22 consider that very important, and we don't plan to do

23 it.

24 MR. GREEN: Right.

25 MS. PONZOLI: It is just you have no problem in

1 that regard.

2 MR. GREEN: All right.

3 MS. PONZOLI: Is that all?

4 MR. GREEN: That's all, except the issue which

5 you had mentioned earlier that is ore tenus.

6 MS. PONZOLI: All right. In regard, Mr. Hearing

7 Officer, in regard to the protective order, you know,

8 the old saying is you shouldn't have two bites of the

9 apple, I think we have had a whole apple tree on this

10 issue, and I think they have in the course of time

11 failed repeatedly to show you a protectable interest.

12 I have assured you that I will not go to the

13 press. I will extend that assurance. I will make

14 sure that none of my scientists of the United States

15 goes to the press with this data, because that is the

16 only articulated concern that came out on the

17 telephone yesterday, that there would be misuse by the

18 federal government of the data, and that it was

19 private property, and we would misuse the data.

20 So I am assuring you we will not misuse the data

21 in the press, if that is your concern, and so I think

22 they have no protectable interest beyond that.

23 I don't have a citation for you, but it is my

24 understanding there is as of 1990 in Florida a

25 sunshine litigation type act that basically says you

1 have to have these matters of public health.

2 The mercury issue is the one I believe they are

3 concerned about, that you cannot keep these out of the

4 sunshine. I think it would be my position it is their

5 burden to show you that they avoid that act.

6 I think my order provides that you in the end can

7 determine the ultimate disposition of the sampling

8 data. When we are finished with this hearing it

9 remains to you to decide the ultimate disposition of

10 what will be done.

11 I really need to hear the Cooperative's

12 arguments, because I haven't heard them, and try to

13 respond to their concerns.

14 MR. HYDE: We have one as well. First of all I

15 would like to note regarding the map that Ms. Ponzoli

16 discussed earlier that we believe that map is not in

17 dispute at this time, as it has not been changed. We

18 will try to confirm that in short order.

19 Having heard Ms. Ponzoli assure us that the

20 United States won't go to the press with such

21 information, I really don't understand why she is

22 objecting to our proposed changes in the order.

23 Our position, which we have briefed many times

24 and have argued several times and which we believe is

25 reasonable, is that basically until you, the Hearing

1 Officer, have ruled on the relevance of such data, it

2 should remain confidential, and at the very least the

3 data should first be disclosed to us, and that it

4 should be called upon to justify to be disclosed to

5 third parties if it wants to do so, and we should have

6 an opportunity to respond to that.

7 Mr. Menton, we continue to believe this whole

8 effort by the United States is really nothing more

9 than a fishing expedition, not to obtain information

10 that is relevant to these proceedings, but to find

11 evidence of other alleged problems which the United

12 States will utilize for other purposes.

13 After all, if it is not relevant what is the

14 purpose of being able to disclose this to other

15 entities other than to embarrass the League and the

16 other petitioners?

17 We do believe and have asserted it is improper to

18 use discovery in this proceeding to generate data for

19 other purposes. We think that you need to harken back

20 to some of the arguments and testimony that you have

21 been presented with.

22 A lot of these issues focus on the half-baked

23 theory of phosphorous recycling and mercury

24 methylization, and I think back in probably October,

25 it was last fall we heard testimony from Dr. Ron Jones

1 as to being able to reach some preliminary opinions as

2 to the validity of this theory, sometime around the

3 beginning of the year.

4 We still haven't heard any justification of this

5 controversial notion that somehow the phosphorous

6 recycling is leading to mercury methylization.

7 I think that if the United States were to provide

8 such information, you would reserve a ruling until

9 such time as you determined whether there was any

10 basis for including it in the proceedings, and I think

11 I recall your specific observation that you felt it

12 would be rather difficult to bring mercury as an issue

13 into these proceedings. It is not a part of the SWIM

14 plan.

15 We think, therefore, our request that these, this

16 objectionable language from paragraph D-2 and D-3 to

17 particularly be deleted is a most reasonable request.

18 I would just like to note in passing the more we

19 learn about the United States' effort the more

20 cautious and suspicious we are of the whole effort.

21 We understand Dr. Ron Jones, who is supposed to

22 be conducting the hexane phase sampling efforts, will

23 not be utilizing the standard devices but in fact is

24 going to be utilizing in effect a homemade hexane

25 phase sampler.

1 We know the issue of mercury is a very

2 controversial one, and yet the only basis that it has

3 ever been argued to be relevant in the proceedings is

4 this half-baked theory which has not yet been

5 justified that somehow phosphorus recycling is leading

6 to mercury methylization. We think it is important if

7 they are going to push this matter any further to

8 prove that.

9 But I think the bottom line is really just we

10 think that given their assurances that they have no

11 intent to broadcast such information, then they should

12 have no objection to our order, and if there are

13 indeed violations that occurred there is certainly a

14 possibility for the Department of Environmental

15 Regulation's possibility of filing an enforcement

16 action, but we think in that sense it is probably

17 improper to use discovery in this proceeding to

18 generate data for other proceedings.

19 The United States I think is really trying to do

20 a little bit of oneupmanship. Every time something

21 happens we seek some access, and they come back and

22 seek something that makes it more difficult. I think

23 the most compelling evidence of that is this whole

24 mercury issue.

25 HEARING OFFICER: Well, we are in the discovery

1 phase of the case now. We are not in the final

2 hearing phase, and I am not going to make relevancy

3 determinations at this stage.

4 I think as I have indicated when we have argued

5 this issue before that we have to treat all of these

6 discovery requests under the general standards that

7 you have had discovery, can it possibly lead to

8 admissible evidence.

9 We have argued this a lot, and I don't know that

10 we really need to spend a lot of time on it today. I

11 thought the way we had left it was I was going to get

12 a proposal from you, the U.S. Government, in terms of

13 what they submitted, and then if there were any

14 problems with it then I would get a proposal.

15 I think there has already been one proposal in

16 the past.

17 But to specifically respond to the U.S. proposal

18 with the alternative language based on the arguments

19 in the brief, I will enter the order. I think that is

20 probably the best way to do it. I don't want to spend

21 a whole lot of time on it.

22 MR. HYDE: This has probably been argued to

23 death. I just wanted to state our concerns for the

24 record.

25 I do think, as I mentioned earlier, though, we do

1 have a protectable interest here. I think we have

2 briefed this adequately, and we will rely on you to

3 determine the issues.

4 MR. GREEN: Mr. Menton, I would be happy to file

5 something if you would like to consider it, if this is

6 what you are suggesting, but I think that our concern

7 on this issue could be easily described with a minor

8 editorial, if I could refer to the page four, just for

9 you to consider as you evaluate this.

10 I think that if you look at the fourth line from

11 the bottom of paragraph D-2 on page four, and the

12 start of the sentence is, "It shall be held in

13 confidence...", and then got rid of the rest of

14 paragraphs two and three basically, how I would read

15 that is that the information would be held in

16 confidence unless you order it otherwise.

17 I think you could order obviously any time if the

18 United States found something that constituted an

19 immediate health to public health, safety, or welfare.

20 We think it is discretionary, more in the context

21 of perception and fairness, and we think it would be a

22 fair process.

23 That requires Your Honor, unfortunately, to be

24 the arbitrator of disclosure if it needed to be

25 disclosed, but we think it would be appropriate, and

1 we would ask you to consider that.

2 MR. HYDE: We would join in that, too.

3 HEARING OFFICER: Let me see if I understand what

4 you are saying. On D-2, the sentence that begins with

5 "To the extent...", and then, "...it shall be held..."

6 MR. GREEN: Well, you would probably have to say

7 that sampling and information obtained by testing, the

8 first two lines, I think you would need this, without

9 restricting what it pertains to, the sampling data and

10 information obtained from the United States, and the

11 drop down and probably continue, "...shall be held in

12 confidence and used only unless otherwise ordered."

13 HEARING OFFICER: You are suggesting that we

14 delete three and four?

15 MR. GREEN: The remainder of two and the

16 remainder of three, and I am not sure about four, if

17 it is necessary in light of the suggestion I made.

18 It would be basically your discretion. We are

19 comfortable with it.

20 HEARING OFFICER: Okay. Let me just say that the

21 only thing is I don't want to hold up the process of

22 the testing, so I think that at least to get the

23 process started let's, I am going to do the order on

24 this. I need to sit down and review some of the prior

25 briefs that were filed and look at some of the case

1 law, and I will make a decision on that aspect of it,

2 but I don't want that process to slow down the access

3 in the testing.

4 MR. GREEN: Fine.

5 MS. PONZOLI: I have two things I need to respond

6 to. Mr. Green in one sentence has achieved what

7 Mr. Hyde was arguing for in his entire argument.

8 HEARING OFFICER: I understand that, and I am not

9 saying I agree with him. I just wanted to understand

10 what they were suggesting.

11 MR. GREEN: That's how I stated it.

12 MS. PONZOLI: I think that he has carefully

13 avoided arguing protectable interest, because they can

14 show no protectable interest, and I think that to

15 shift that burden to the United States so that we have

16 to come in and prove our right to do these things with

17 the data is improper in any context where they have

18 not first proven a protectable interest.

19 The second thing I would like to address, and I

20 do not mean to make Mr. Hyde feel bad, because in this

21 particular case the information overload is truly

22 overwhelming, and we are not all going to all

23 depositions.

24 Mr. Hyde was not at the deposition of Dr. Curtis

25 Richardson where it came out that Dr. Curtis

1 Richardson to some extent shares this theory that

2 there is a very direct link between phosphorous

3 cycling and methylization of mercury and in fact has

4 made proposals to do similar type research on this

5 theory and said that the data should be open to the

6 public.

7 He also was not at the deposition of Dr. Curt

8 Poleman, who also in several instances of testimony

9 has attested to the fact as a witness, Dr. Richardson

10 is a witness for both Mr. Hyde and the Cooperative,

11 the League and the Cooperative, Dr. Poleman being a

12 witness for the Cooperative, who again said that he

13 believed it is a very valid hypothesis that there is a

14 relationship between the phosphorous cycling and the

15 methylization of mercury.

16 This is no half-baked theory. It is one that is

17 held by a very large number of scientists.

18 HEARING OFFICER: Okay. We are getting beyond

19 the scope of this.

20 MS. PONZOLI: I just thought, this is the

21 concept, I don't even want half-baked burned in your

22 brain, because it is not there, because it is a very

23 valid theory.

24 MR. HYDE: We believe that to be a

25 mischaracterization of the depositions.

1 HEARING OFFICER: Okay. I am not going to get

2 into that today. We have plenty of time at the final

3 hearing.

4 MS. PONZOLI: I would love to present the proof

5 to you.

6 HEARING OFFICER: I guess, let me just say,

7 Ms. Ponzoli, one thing I noticed in reviewing your

8 order today that jumped out was the references to

9 proprietary interests, and I know that we talked about

10 that. I know I have had cases where it has come up,

11 and it does get to be a very difficult thing to

12 determine what constitutes a trade secret and what is

13 your definition of a trade secret.

14 I guess having that, when I saw that I said,

15 because I have been through the hearings where we have

16 sat through for days and argued over what i