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 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. )
) _____________________________________________
17
18 HEARING BEFORE: HONORABLE J. STEPHEN MENTON
HEARING OFFICER
19
DATE: FRIDAY, APRIL 2, 1993
20 (1:35 P.M. - 4:00 P.M.)
21 LOCATION: HEARING ROOM 5, DESOTO BUILDING
1230 APALACHEE PARKWAY
22 TALLAHASSEE, FLORIDA
23 REPORTED BY: SUE HABERSHAW JOHNSON
CERTIFIED COURT REPORTER
24 REGISTERED PROFESSIONAL REPORTER
NOTARY PUBLIC
25
2
1 APPEARANCES:
2 Representing Petitioners, Sugar Cane Growers
Cooperative of Florida, Roth Farms, Inc.,
3 and Wedgworth Farms, Inc.:
4 WILLIAM H. GREEN, ESQUIRE
GARY PERKO, ESQUIRE
5 DONNA STINSON, ESQUIRE
CAROLYN RAEPPLE, 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 UDITH S. KAVANAUGH, ESQUIRE
Peeples, Earl & Blank, P.A.
12 One Biscayne Tower, Suite 3636
Two South Biscayne Boulevard
13 Miami, Florida 33131
(305-358-3000)
14
Representing Petitioners, Florida Fruit and
15 Vegetable Association, Lewis Pope Farms,
W. E. Schlechter & Sons, Inc., and
16 Hundley Farms, Inc.:
17 KENNETH F. HOFFMAN, ESQUIRE
Oertel, Hoffman, Fernandez & Cole, P.A.
18 Suite C
2700 Blair Stone Road
19 Tallahassee, Florida 32301
(904-877-0099)
20
Representing Respondent, South Florida Water
21 Management District:
22 PAUL L. NETTLETON, ESQUIRE
Popham, Haik, Schnobrick & Kaufman, Ltd.
23 400 International Place
100 Southeast Second Street
24 Miami, Florida 33131
(305-539-7222)
25
3
1 Representing Intervenor, The United States
of America:
2
SUZAN HILL PONZOLI, ESQUIRE
3 THOMAS A. WATTS FITZGERALD, ESQUIRE
Assistant United States Attorneys
4 Southern District of Florida
Suite 627
5 155 South Miami Avenue
Miami, Florida 33130-1693
6 (305-536-4425)
7 -and-
8 KEITH E. SAXE, ESQUIRE
RAY STEPHEN BARTELL, ESQUIRE
9 U. S. Department of Justice
Environment & Natural Resources Division
10 General Litigation Section
P.O. Box 663 (20044)
11 601 Pennsylvania Avenue, Room 879
Washington, D.C. 20004
12 (202-272-4016)
13 Representing Intervenor, Florida Department of
Environmental Regulation:
14
LEE M. KILLINGER, ESQUIRE
15 KEITH HETRICK, ESQUIRE
Assistant General Counsel
16 Department of Environmental Regulation
Twin Towers Office Building
17 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
18 (904-488-9730)
19 Representing Intervenor, Florida Wildlife
Federation:
20
KEN WRIGHT, ESQUIRE
21 111 South Martin Luther King, Jr., Blvd.
P.O. Box 1329
22 Tallahassee, Florida 32302
(904-681-0031)
23
* * * * *
24
25
4
1 PROCEEDINGS
2 (WHEREUPON, THE HEARING COMMENCED AT 1:35 P.M.)
3 HEARING OFFICER: Let's get started. The first
4 thing is the protective order. I know I promised to
5 get to that last week. I have been unexpectedly tied
6 up over at the Legislature for the last two weeks,
7 trying to get more money to help us handle cases
8 such as this, without a whole lot of success, but
9 in any event I had to spend more time over there than
10 I expected, so I haven't had a chance to get to that.
11 The Legislature will be out of here hopefully
12 by Sunday, and next week I can focus more, and I
13 will do that.
14 I have a lot of motions, various things that
15 have been filed. Let me go through the list I made,
16 and then you tell me which ones we need to take and
17 in what order.
18 The first is a slough of motions to compel,
19 strike, etcetera, etcetera, etcetera, regarding the
20 Dr. Richardson situation.
21 The next would be the issues related to the
22 cancellation of the deposition of Thomas Herbert
23 and the failure to reach final opinions, which is
24 somewhat related to the motion to compel compliance
25 with the deposition schedule, which was also filed by
5
1 the United States.
2 I also have the League's motion for sanctions
3 regarding the depo of Handley Smith. On these
4 latter documents they have all been filed within the
5 last few days, so I don't think the time has run for
6 responses. I don't think they are ripe for
7 consideration today, but since they are all pending
8 and everybody is here I thought we should try to
9 discuss them and get rid of some of them.
10 I also have a motion to extend the entry and
11 access order that was filed by the League. I have
12 the League's motion for protective order regarding
13 the depositions of Dr. Polopolus and Dr. James
14 Richardson. I have the League's memo in opposition to
15 production of documents regarding things not in its
16 control, and I have the South Florida Water Management
17 District's motion to compel.
18 I think there were a few more on my desk this
19 morning that I have simply not had an opportunity to
20 pick up on and add to the list, but those are
21 all the ones that I have noted.
22 Are there any other ones I have not taken note
23 of that anybody is aware of? That's good.
24 All right, let's start out with Dr. Richardson's
25 situation. We talked about this last time, and this
6
1 is one that I find a little bit irritating to have
2 to deal with, to be honest with you.
3 (WHEREUPON, MR. HETRICK ENTERED THE HEARING
4 ROOM.)
5 MS. KAVANAUGH: Essentially, Mr. Hearing
6 Officer, it's moot. I think it was responded to,
7 so we don't, as far as we're concerned we have
8 responded, and there it is.
9 MS. PONZOLI: I'm not going to irritate you.
10 I'm not real happy with the answers, but I think the
11 deposition will continue, and I think he can answer
12 the questions in his deposition.
13 HEARING OFFICER: Okay. Let me just make an
14 observation. These are exactly the kind of issues I
15 do not want to see people spending a lot of time
16 filing motions on. It's not productive in the long
17 range scheme of things.
18 I think as I expressed last time, I thought it
19 was important that the United States get some
20 responses to its inquiries as to what took place and
21 how much testing had been done. I think it was
22 reasonable, and I don't see a problem with that.
23 I don't want to see 20 pages or 15 pages or
24 however many paged memos being traded back and forth.
25 We have too many other important things to focus on.
7
1 We are under, everybody is under a time crunch,
2 and I'm not going to be very tolerant of complaints
3 that "I don't have time to get ready for a
4 deposition" when I see all this stuff coming in.
5 So I just ask everybody to try to use some
6 judgment in terms of what needs to be done and try to
7 exercise it accordingly.
8 The next situation has to do with I guess,
9 originally came up in connection with the notice of
10 cancellation of the depo of Thomas Herbert and I guess
11 the motion to compel compliance with the depo
12 schedule. They seem to be related. The notice of
13 cancellation does not seek itself any relief, but
14 it indicated there would be a motion, and I assume
15 that's what the motion of compelling compliance is
16 all about.
17 That looks like a good one to start on.
18 MS. KAVANAUGH: Mr. Hearing Officer, we haven't
19 even seen that particular motion. We haven't
20 received it. We only received the motion to compel
21 compliance with the discovery arrangement yesterday.
22 We could all pile you up with papers about
23 our various complaints about the discovery
24 arrangements. I might point out we do have a
25 meeting of counsel scheduled for next Friday, and
8
1 certainly it's our intent to try and work out as many
2 of these disputes, and I think based on what you just
3 told us we certainly have an incentive to do that.
4 Obviously we can give you our litany also of
5 discovery problems, but we are all having problems
6 in discovery. I think it's partially because this
7 is really a de novo hearing where the agency
8 action is being formulated as we go along, and we
9 have some of the same problems with their experts
10 not having final opinions when we depose them, and
11 it is a problem.
12 I think all counsel next week hopefully can
13 try and work on some of these problems, but frankly
14 we would like to respond in writing. I hate to pile
15 you with more paper, but it is inaccurate.
16 HEARING OFFICER: You said you have received
17 the motion to compel, but you haven't received the
18 notice of cancellation?
19 MS. KAVANAUGH: Yes. We haven't even seen that.
20 HEARING OFFICER: All right. The notice of
21 cancellation was filed on March 17th, and it was like
22 a two-page document giving notice they were cancelling
23 it and said because the U. S. was advised they had
24 not reached a final opinion, they intended to bring
25 this matter up on April 2nd.
9
1 MR. FITZGERALD: Mr. Hearing Officer, it was
2 more in the nature of a notice that we were going
3 to broach the issue. Subsequently we filed a motion
4 to compel compliance with the schedule.
5 You will recall in a telephonic hearing we
6 had about two weeks past we discussed the provision
7 of the deposition of Dr. Terry Sturm.
8 HEARING OFFICER: I forgot to take roll call
9 this morning.
10 MR. FITZGERALD: The usual suspects.
11 HEARING OFFICER: I think the court reporter
12 knows everybody by heart now, but in terms of
13 identifying all the parties I think probably for
14 the record we should have everybody state their
15 appearances.
16 MR. GREEN: Your Honor, for the Sugar Cane
17 Cooperative, Bill Green, Gary Perko, and Donna Stinson.
18 MS. KAVANAUGH: Judy Kavanaugh.
19 MR. HOFFMAN: Fruit and Vegetable, Ken Hoffman.
20 HEARING OFFICER: For the Florida Water
21 Management District?
22 MR. NETTLETON: Paul Nettleton.
23 HEARING OFFICER: For the U. S. Government?
24 MS. PONZOLI: I am Suzan Ponzoli, Tom Watts
25 Fitzgerald, Keith Saxe, and Steve Bartell.
10
1 HEARING OFFICER: For DER?
2 MR. KILLINGER: Lee Killinger and Keith Hetrick.
3 HEARING OFFICER: Okay, and for the environmental
4 interests?
5 MR. WRIGHT: Ken Wright.
6 HEARING OFFICER: Anybody else I missed?
7 MR. GREEN: My partner, Carolyn Raepple, is also
8 here, and you will probably see her more as time goes
9 on.
10 HEARING OFFICER: Welcome to the club.
11 MR. FITZGERALD: The apparently increasingly
12 deselective group in terms of size.
13 HEARING OFFICER: All right, I'm sorry,
14 Mr. Fitzgerald.
15 MR. FITZGERALD: I was referring to our
16 telephonic conference where the United States moved
17 on an emergency basis to compel the deposition of
18 Dr. Sturm in the face of a very analogous situation
19 of Mr. Herbert, and dovetailing into our request
20 for very minimal relief in the way of the motion we
21 filed.
22 During the course of that telephonic conference
23 and to establish the legitimacy of the United States'
24 claim of good cause for an emergency hearing on that
25 by phone, I had recited for you certain
11
1 cancellations that had occurred with minimal or no
2 advance notice and no explanation and the difficulty
3 that was causing, the ripple effect throughout the
4 master deposition schedule where people were not
5 adhering to it.
6 That's really the genesis of this, because it's
7 a problem that needs to be addressed. It's insufficient
8 to say in our view that everybody has deposition
9 problems or discovery problems, and we'll work it
10 out, because that is not what has been adopted.
11 What's been adopted is if there are problems
12 with discovery we'll file sanctions. We have not
13 adopted that tact, but it certainly would be
14 justified based simply on the record I recited where
15 the list that I laid out or was laid out by one of
16 our counsel at some length, because you had pointed
17 out clearly that those other issues were not before
18 you in Dr. Sturm's instance, so we wanted you to see
19 the scope of that problem, because it's a recurrent
20 one.
21 Counsel can get together at innumerable meetings
22 to develop that master depo schedule, and one or
23 more parties can decide they will simply cancel
24 willy-nilly with no constraint on that, and that
25 effort is wasted, and it becomes as futile as the
12
1 effort of filing massive pleadings, which we agree
2 also is very counterproductive.
3 It seems to us that certain additional direction
4 from you may assist in that. If the parties are
5 compelled, and I don't think unreasonably, to cite
6 adequate bases for short-term cancellations on either
7 their own or the other side's, it will more or less
8 hold everyone's feet to the fire, actually not
9 require any additional work, because they already
10 have to give notice they will do it, and that will
11 force everyone to exercise a certain restraint in the
12 area that has been somewhat lacking thus far.
13 The issue of rebuttal other than rebuttal
14 witnesses, of having experts be identified with firm
15 final opinion dates is serious at this juncture.
16 We are although some months away from final hearing
17 getting down to a fairly circumspect group of experts
18 to be finally deposed with some minimal followup
19 depositions of those who have already been deposed.
20 The dates being provided are simply not being borne
21 out. It would be ont thing if lack of data was
22 the problem, but as we point out in our pleading
23 that has not proved to be the case when witnesses
24 have been deposed.
25 The articulated reason typically is the entry
13
1 program at Loxahatchee or ENP being the bar to
2 completion which is not borne out by the witnesses
3 themselves in many instances.
4 We need final opinions, and very, very few of
5 the experts to my knowledge have stated they did have
6 final opinions, subject only to rendering them as we
7 all do with catastrophic events or a major
8 revelation that could occur down line in science.
9 So while this may not be an issue fully briefed,
10 it doesn't appear to be one that needs to be
11 belabored either.
12 HEARING OFFICER: Okay. The two issues as I'm
13 hearing you say, the first deals with cancellation
14 and whether some justification or reason should be
15 given.
16 I don't understand why that's a problem, and I
17 would assume the parties are following such a course.
18 MS. KAVANAUGH: We believe we have, Mr.
19 Hearing Officer.
20 As I say, that's why we believe there are
21 inaccuracies in the memoranda, but that is certainly
22 our intent, and that's what we thought we were
23 doing.
24 There have been numerous cancellations by all
25 parties, both sides.
14
1 HEARING OFFICER: Well, I understand that, and
2 I don't want to get into a situation of doing a
3 comparison chart, pointing out the reasons why. I
4 just don't think that's going to be productive. But
5 I do believe that there should be an articulation
6 of the reasons why a deposition is being cancelled
7 if it's going to be, especially on short notice, and
8 I would expect all parties to govern themselves in
9 accordance with that if they haven't been doing
10 that already.
11 The second issue deals with the final opinions,
12 and we have talked about this quite a bit in the
13 earlier hearings that we have had. I do recognize
14 that the petitioners since they're not the authors
15 of the SWIM plan have to first digest the plan
16 and have their experts come back with their opinions
17 regarding that, and I think that was one of the
18 factors that was built into the discovery schedule.
19 I hope that was. That was the intent.
20 Now I also recognize that there are going to be
21 problems, you know, along the way in terms of
22 getting information with experts, etcetera, but
23 I want everyone to be clear that I am working on
24 this case with the understanding it is going to
25 hearing in October, and that has been continued from
15
1 the original date that we had, and I intend to stand
2 firm on that.
3 I want everybody to be working towards that
4 goal, and I don't want to see a situation where
5 experts are directed to hold off on final opinions
6 or whatever. There is no time for that, given the
7 situation that we're placed in.
8 As I pointed out several times, the statute
9 requires me to expedite this proceeding. We are
10 already looking at a hearing 18 months after the
11 case came to me, and I recognize the magnitude of
12 the case, and I know everybody has been working very
13 hard on it. I'm not trying to cast aspersions at
14 anybody, but I just want everyone to know that I'm
15 looking at an October hearing date, and it will go
16 then, and barring another Hurricane Andrew or
17 something to that effect everybody had better be
18 prepared to go, and if experts haven't finalized
19 their opinions and if they haven't been subject to
20 reasonable discovery, I'm not going to hear the
21 testimony.
22 So it's as simple as that. I don't know how
23 else to direct it without getting into the comparison
24 chart and just expect everybody will be operating
25 under those parameters.
16
1 MR. FITZGERALD: The problem that you cite
2 is particularly difficult for us, because while we
3 may be supporting the District in the defense of the
4 plan, it still requires that we know what the attack
5 is.
6 When you've got 100-plus issues that may or may
7 not be there it's very difficult to focus on what
8 we believe the true issues should be in the hearing.
9 Two problems present themselves. One is the
10 outgrowth of the cancellations, that we get down to
11 July, and suddenly you will be faced with the
12 plaintive cry of insufficient time to finish the
13 depositions, and where we have worked out an
14 agreed schedule for all the witnesses we don't
15 think that should be favorably entertained later on,
16 and we wanted to highlight this in advance of July.
17 Secondly, without doing a "Who shot John" thing,
18 there are experts who are saying in depo, "I have
19 finalized my work to this point, and that's more or
20 less stable, but there are these potential areas of
21 further work or inquiry." "So, well, are you going
22 to do it?" "I don't know. It depends on whether
23 I'm asked." "Do you plan to?" "I don't know." I
24 mean, they are hired experts, so they do what they're
25 told by counsel, and they clearly have not been told
17
1 to do certain things that are logical followups on
2 this.
3 We don't think it's sufficient, and we hold
4 ourselves to the same standard, that if someone is
5 being, it's not malfeasance, it's nonfeasance. It's
6 not an expert being directed not to finalize his
7 opinions, per se. He's not told to do the work.
8 He works for a living. He's an outside consultant.
9 He's not going to do it unless he knows he'll be
10 paid for it.
11 Yet later I'm convinced we will be faced
12 claiming it became relevant or they decided to do
13 it, and at the last minute we'll be confronted
14 with a letter or a notice that this person does
15 have new opinions, "You need to go back and depose
16 him," and then we're under the gun, perhaps forced
17 to say, "You know, about that July deadline, now
18 we've got problems, because we don't know what this
19 witness will say, because he or she wasn't directed
20 to do new work until now."
21 HEARING OFFICER: Well, Mr. Fitzgerald, in
22 connection with the first point, I recognize, and
23 I tried to draw a distinction between those experts
24 who were involved on the side of the District or the
25 U. S. Government in preparing the plan, and therefore
18
1 will be responding to the opinions formulated by
2 your propounding it. I do recognize there's a
3 distinction there, and I didn't mean to lump all of
4 your persons into one category.
5 On the second point, I think it's a little
6 premature to anticipate what additional studies some
7 experts may be asked to do.
8 Now you may think certain additional studies
9 will be a logical outgrowth. For whatever reason
10 they may have decided not to do it.
11 Now I would strongly suggest you pin the
12 witnesses down as to what they have done and what
13 they haven't done, and if they go out and start
14 doing subsequent studies that suddenly show up,
15 those studies are not going to be admitted unless
16 they can show me a reason why they weren't done
17 earlier.
18 That's the only way I can address that, and
19 We'll take them up as they come along.
20 So it will be up to you to pin witnesses down
21 in their depositions, and if witnesses subsequently
22 go out and do additional studies that were not
23 available at the time their depositions were
24 taken it will be up to you to show me why it couldn't
25 have been done earlier in connection with his
19
1 deposition and the formulation of his opinion.
2 MR. GREEN: Your Honor, may I say a couple of
3 things for the record just to balance it out a
4 little bit?
5 We had a counsel conference call earlier this
6 week, and I didn't see why we needed to waste your
7 time today. I think we're doing that. I object to
8 it, because I think it's posturing, and I really don't
9 think it's defensible.
10 We're going to meet in a week, as Ms. Kavanaugh
11 said, to talk about these things. We have had a
12 seven-month deposition scheduling of 100-plus witnesses.
13 If some of them don't get moved around, then
14 we're all amazed. It's just the real life. I don't
15 see any bad faith here.
16 We haven't cancelled a deposition, not one.
17 We had one witness, Dr. Herbert, and I gave the
18 United States a choice. I said, "Look. You can
19 depose him, but because of our resource allocations
20 if you could move him a month I think you'd have a
21 lot better deposition." They blew this up into,
22 "Well, the Coop isn't ready."
23 Let me say I think the roof of this is no
24 fault of the petitioners. For this SWIM plan the
25 science is being done now that wasn't done when the
20
1 settlement negotiations were going on. I'm serious
2 about that.
3 There were a few meetings that came out with a
4 plan, and now they're justifying it.
5 As recently as last week one of the key witnesses
6 for the government said he can't give a final opinion
7 on the STAs, so how in the world can our witnesses
8 have final opinions?
9 I'm not trying to start an argument here. Just
10 to put it in perspective, we will try to hold to the
11 schedule to the best of our ability. We have been
12 doing that. All parties have been working hard.
13 We're wasting your time today, and I hope you will
14 ignore the posturing that's going on.
15 HEARING OFFICER: Well, I'm used to posturing
16 from all parties in this case.
17 I appreciate your concerns. For me it's not a
18 waste of time, because I need to get an idea of what's
19 going on, and I think it's important just from my
20 perspective to have these, to see all your happy,
21 smiling faces once a month, to make sure that, you
22 know, I can keep on top of what's going on. It helps
23 me.
24 It doesn't mean all of you have to come every
25 time we have these things. I just think that these
21
1 status conferences have served a useful function in
2 the process, so I intend to continue them on a monthly
3 basis as we go forward.
4 Now hopefully we will not have a lot of issues
5 to discuss at all of them, and maybe we don't have a
6 whole lot more to discuss today, but I think that
7 everybody will use every opportunity they have to
8 posture their case, and I understand that. Most of
9 that is going over my head.
10 MR. FITZGERALD: Mr. Hearing Officer...
11 MS. KAVANAUGH: Simply because it may be
12 an appellate issue at some point, and the score card
13 needs to be biased, so we will want to file some
14 written information, but I don't need to go over
15 it now.
16 HEARING OFFICER: I understand everybody needs
17 to build their support in the record, too, and I think
18 it can be done without this sort of thing, but I
19 recognize that.
20 MR. FITZGERALD: Mr. Hearing Officer, I agree
21 if we had a seven-month schedule that we were operating
22 off of that people will have to be moved around,
23 but we don't have one. We don't have a seven-month
24 schedule. We haven't been running on one.
25 The schedule we're currently operating on or from
22
1 was basically finalized about the end of January.
2 We had a preliminary schedule earlier today. We spent
3 a lot of meetings developing it.
4 My difficulty is, and Mr. Herbert is a good
5 example, as counsel cited specifically to the options,
6 either of two things, "Go ahead and do him," and I
7 was told he had done about 10 minutes worth of
8 work since his original deposition on December 7th,
9 1992.
10 The witness testified he will be done by the end
11 of January. Even allowing for slippage he had an
12 actual month and a half to two months prior to the
13 followup depo.
14 I'm told by counsel, "You can go ahead and do
15 him now, but it will be a waste of your time." I
16 appreciate him telling me that. Then he says, "But
17 if you do him now we'll oppose you doing him
18 later, because he just hasn't finalized his work."
19 That was presented to me in the context of a
20 resource allocation decision.
21 That's fine, too. Everybody makes those kinds
22 of decisions.
23 But by making the decision to have the witness
24 not perform any work for three months, right up to
25 the time of his otherwise agreed depo, with no
23
1 notice during the process of agreeing to the depo
2 schedule, to say that person won't be done then, and
3 have it sprung on you at the last minute, no party
4 either on our side or their side confronted with
5 that situation can adequately stage their discovery
6 and discern what the true case is. That's my concern
7 with the witnesses.
8 MR. GREEN: I don't want to comment on that.
9 HEARING OFFICER: I don't want to start getting
10 into the specifics of all these. That's what I wanted
11 to try to avoid.
12 I think if we start getting to a point where it
13 is necessary to get into this comparison deal, then
14 I'll do it. I'm not going to be in a good mood when
15 I do it, but we'll do it.
16 MR. FITZGERALD: Mr. Hearing Officer, I think
17 in your position you can very much negate the
18 likelihood we ever have to get there, but it needs
19 to be done now. Early and often is better than
20 being in that situation, because we don't want to be
21 in that situation. That would be a true waste of
22 time.
23 HEARING OFFICER: I don't know what you're
24 requesting me to do other than the things I already
25 have of trying to cover this. I don't know the
24
1 particulars of this situation, and maybe there's a
2 reason or whatever, but if you've got a witness
3 who said his opinion will be formulated in a month
4 and there's for some reason a delay, then that
5 delay had better be pretty justifiable, or else
6 we'll have to sit down and talk about it.
7 Let's just try to run it within those
8 guidelines.
9 MS. PONZOLI: I think the point we're trying
10 to make, Mr. Hearing Officer, is we're not getting
11 at their case. They filed petitions over a year
12 ago, and they should have experts who have positions.
13 In the financial area it's one of the areas
14 where we have the most difficulty, and so I think
15 that that's, I think what we're trying to tell you
16 is we're doing all we can do. I just want you to
17 understand that United States is having an enormous
18 problem even finding out what their cases are,
19 because this problem is mounting on almost a
20 weekly basis.
21 I think this is sort of a heads up that we
22 have done today. We have the scheduling conference
23 in a week. We wanted it today. They said they
24 couldn't hold it today before this hearing. I guess
25 I would like if we can to set aside time on the 23rd
25
1 so that if these problems are still present and
2 occurring on the 23rd of April we want an opportunity
3 to come back to you and say, "It's not getting any
4 better. It's still occurring continuously. We've
5 got to have some guidelines that are pushing harder."
6 HEARING OFFICER: Okay. First of all, with
7 respect to the financial aspects, that is, I can
8 understand that that may be a function somewhat of
9 the way these issues have evolved in this case,
10 because we have spent a lot time arguing and briefing
11 those issues and trying to clarify exactly where they
12 came.
13 I can understand that until the particular role
14 of the economic aspects of the case was understood by
15 all parties it would be difficult for the experts
16 to really get going, and I would assume that's the
17 source of it from that particular area, some of the
18 difficulty in getting opinions.
19 Now some of the other things where there have
20 been more of an opportunity to review, then I would
21 expect these opinions to be further along in terms
22 of finalization.
23 I hope that's the case, and the 23rd, I don't
24 have my calendar in front of me, but at the break
25 I can pull that out and see.
26
1 MS. PONZOLI: That would be good.
2 HEARING OFFICER: We ought to go ahead and set
3 the next few of these while we're all here today
4 and work towards it, and we can take up additional
5 things if we need to on the 23rd.
6 MR. GREEN: And talk about dates later, is that
7 right?
8 HEARING OFFICER: Yes. We'll take a break, and
9 I'll get my calendar and see what's going on.
10 MS. KAVANAUGH: Since everyone is posturing,
11 I really have to go on the record just so it's
12 clear, and we'll be filing a response, but the
13 United States has grossly misrepresented the
14 situation. I guess I could almost take Ms. Ponzoli's
15 and Mr. Fitzgerald's arguments as ours.
16 We are all encountering difficulties, and at
17 least eight of their experts haven't had final
18 opinions either. We are all stuck in the position
19 where do we take further depositions? We'll just
20 have to work on it, because it is an evolving
21 agency action.
22 HEARING OFFICER: Okay. We'll some of the
23 other motions probably are premature, but maybe
24 we can talk about them and resolve them so we don't
25 have to get into a responsive pleading deal and maybe
27
1 move forward.
2 MR. NETTLETON: Mr. Hearing Officer, Paul
3 Nettleton for the District.
4 I just want to say this is not posturing at
5 all. At least I don't think it is. And it's not
6 really related to what's been discussed so far, since
7 it seems there has been some misconception on the
8 Hearing Officer's part concerning the SWIM plan
9 and the development of the SWIM plan, and it almost
10 sounds as if you assumed that the experts that
11 we're using in this case were somehow involved
12 in developing the SWIM plan, which is not necessarily
13 the case.
14 The SWIM plan was developed over the course of a
15 number of years, based upon existing studies that
16 had been done over decades. These studies were not
17 done specifically to support a SWIM plan, per se.
18 They were done for scientific research, and they
19 all culminated eventually and were pulled together
20 to develop the SWIM plan and reach a consensus and
21 the conclusions that are reflected in the SWIM plan.
22 The experts that are involved in this, and
23 certainly these people were not doing research for
24 purposes of litigation. A lot of the stuff that is
25 being done now and what we're hearing about final
28
1 opinions and stuff like this is because now we have
2 gone out as well as everybody else, has gone out
3 and retained certain experts, using some in-house
4 experts, who have some history with the studies that
5 have been done, and doing additional research to
6 further support the conclusions, but I just wanted
7 to clarify there is not, it's not like we had our
8 case all put in place with the SWIM plan. That was
9 not developed for purposes of litigation, and the
10 studies that were arrived at were not developed for
11 purposes of litigation. That is an ongoing thing
12 that's happening in this context.
13 HEARING OFFICER: Well, I appreciate your
14 passing that on to me. I do admit that I am pretty
15 ignorant of exactly how all of the portions of the SWIM
16 plan came together. It simply hasn't been presented
17 to me. I haven't been at any of the depositions,
18 and I'm not familiar with how that all came about.
19 It does seem to me you don't put together a
20 document as massive as the SWIM plan is without some
21 people doing a lot of work, and those people,
22 irrespective of exactly how it came together, my
23 point still is this, that there are a lot of people
24 out there who knew or know how it came together and
25 who know the studies upon which it is based and the
29
1 people who conducted those studies, and all of those
2 people should be ripe for deposition.
3 I think my point is those people are in a
4 different posture than people who will be testifying
5 against the plan and those who will be testifying
6 in response to those testifying against the plan.
7 So I think you can kind of categorize the
8 witnesses along those lines.
9 That's the way that I'm looking at it. I think
10 what I have indicated at prior hearings was I hoped
11 to the extent possible that discovery would
12 proceed, because there are some people out there
13 who are obviously going to be more ready for
14 deposition or will be ready earlier than others,
15 and hopefully the parties can take that into account.
16 MR. NETTLETON: Again, Mr. Hearing Officer,
17 and I think that is correct for a number of the
18 people that are involved, but that would especially
19 hold true for anybody who is not ongoing, doing any
20 additional research at this time, but their study
21 may have been done in the seventies or eighties,
22 and it was cited in the SWIM plan. All studies
23 were cited in the SWIM plan that were relied on.
24 People who did those studies, and they are not
25 our witnesses, they were done by the research
30
1 community at large in the United States that
2 were collective. To the extent those people are our
3 witnesses, they are certainly able I would imagine
4 at this time to testify as to their study.
5 Now if they are still doing, if we have asked
6 them to do additional research, for purposes of the
7 litigation, then that's another, you know, to further
8 support what they did or something like that, that's
9 a different ballgame to some extent, but I don't
10 think we have run into that problem with most of our
11 people, and to the extent the studies that are
12 referenced in the SWIM plan, I don't think that
13 anybody has obviously said they don't have final
14 opinions about their own studies that have already
15 been done.
16 Again I just wanted to clarify.
17 HEARING OFFICER: Well, if you're going to be
18 using witnesses who have done studies in the past and
19 were used and cited in the SWIM plan and who you
20 have asked to do additional studies, further,
21 followup studies, I think you'd better try to get
22 those followup studies completed within the time
23 frame that will enable those opinions to be
24 completed, discovered, and responded to.
25 MR. NETTLETON: I understand that.
31
1 HEARING OFFICER: All right. The next issue
2 I guess is the League's motion for sanctions
3 regarding the deposition of Handley Smith.
4 MS. KAVANAUGH: We did agree, Ms. Ponzoli and
5 I agreed, we wanted to brief that. We don't have to
6 take that up.
7 HEARING OFFICER: We can put that off until
8 April 23rd?
9 MS. PONZOLI: Yes.
10 MS. KAVANAUGH: Yes, we can argue it, but we
11 did agree.
12 HEARING OFFICER: All right. We don't need to
13 argue it today. I have read the motion. There were
14 a couple of issues that occurred to me in looking at
15 the motion.
16 The first is one that we have discussed in the
17 past and is somewhat related to the League's motion
18 that we'll get to in a minute, and that is I am still
19 not clear from a legal standpoint what the obligation
20 of the United States is, vis a vis all of the
21 federal agencies that may be involved, in whether
22 or not the Department of Justice is automatically
23 responsible for all the umbrella of federal agencies
24 that may be involved in this case.
25 I just don't know. They may be. I don't know.
32
1 I don't know what that law is on that. Nobody
2 cited me to any particular law.
3 It strikes me as analogous to the League's
4 motion regarding its members to a certain degree,
5 but that's one thing that is not addressed in the
6 motion for sanctions and one which I wanted to point
7 out.
8 It may be that the Department of Justice has,
9 even if it's not legally obligated has agreed to
10 appear as counsel of record on behalf of these
11 agencies, but in the context of my own experience as
12 a Hearing Officer dealing with state agencies it
13 has always been the course, and again I have never
14 researched it, but if I've got a case involving HRS
15 and if for some reason they need to take a deposition
16 of somebody from DPR, there is another attorney
17 involved, and there is a, DPR is not automatically
18 a party to the case.
19 I don't know that the way that that motion for
20 sanctions was styled assumes that the Corps of
21 Engineers was a party.
22 MS. KAVANAUGH: If I may recall, if you'll
23 recall, and I didn't bring it with me, but I can
24 provide it in a short, supplemental memorandum, on
25 the point at the very first hearing at our request
33
1 you asked Ms. Ponzoli which agencies she was
2 representing, and she indicated the Corps, Department
3 of Interior, EPA, and the other agencies who were
4 signatory to the final agreement.
5 Now I'm paraphrasing, but that's my recollection
6 of the transcript, which was why we are speaking to
7 a specific group of designated reps.
8 But certainly we will offer you more briefing
9 on that.
10 HEARING OFFICER: Okay. I mean, it just, I don't
11 recall what happened at the first hearings and what
12 those representations were.
13 I don't know they would necessarily be binding
14 on this discovery context.
15 If you're asking an employee of another federal
16 agency that's not a party to the case, I don't know
17 that you can treat that like they are a party.
18 MS. KAVANAUGH: The question was who were the
19 parties. I'll, we'll provide you with that. It
20 was our question right up front, was who were the
21 respondent intervenors, and who was involved, so
22 I certainly think it does merit further briefing,
23 and it's not explained in the motion.
24 HEARING OFFICER: Well, okay. I'm concerned
25 as to how much further briefing we really need to do
34
1 on this particular issue. I have reviewed very
2 quickly the deposition. I did not read it page by
3 page. I tried to get the gist of what transpired
4 during that, and first of all it seemed to me that
5 there was a lot of useful information that was
6 generated as a result of the deposition, if for no
7 other reason than background.
8 Second, it's clear that everybody anticipated
9 that there would be or at least as I understood it
10 there would be another designated person from
11 the Corps of Engineers who would be testifying,
12 and that there was going to be a further review of
13 Dr. Smith's files to determine what documents
14 were to be produced.
15 From what I read it appears there were some,
16 and hopefully we can just move forward without having
17 to get into a lot of back and forth over this.
18 MS. PONZOLI: I can make it simple. I did
19 not cover this deposition, but I will state for the
20 record while her restatement of my representation
21 in the beginning was not accurate, I do represent
22 the Corps of Engineers in this room, as do every
23 federal attorney who is here.
24 If we can cut through the unhappiness that
25 exists between the parties, it would appear that
35
1 the motion was based upon a failure to reschedule
2 the deposition, the continued deposition, of
3 Dr. Smith.
4 If Ms. Kavanaugh wants to stipulate that that's
5 the single issue we need to resolve in that
6 regard, then we can dispense with all briefs.
7 I admit I represent the Corps of Engineers. If
8 we need to go back and brief all the equities in the
9 documents and the production problems, then we
10 have to do that. I mean, I feel I need to do that
11 if that's necessary.
12 If all we need to do is set a date for the
13 continued deposition of Dr. Smith, then we can do
14 that.
15 MS. KAVANAUGH: Mr. Hearing Officer, the date
16 issue is, you know, just symptomatic of the
17 scheduling problems we are having. The big problem,
18 and I didn't cover this one, either, but the big
19 problem that we are having is the documents aren't
20 being produced in advance.
21 These depositions are very costly. They are
22 very complex. We thought we had an understanding
23 it was a designated rep, and there are certain
24 minimal inquiries that they were designated as the
25 designated rep, and that was our problem and
36
1 continues to be our problem, that we are not getting
2 the documents in sufficient time to have a fully
3 meaningful deposition.
4 I mean, if we're going to produce them or only
5 produce them partially at the day of the deposition,
6 then let's agree that's what we're going to do, but
7 we feel...
8 HEARING OFFICER: Well, that's not the way I want
9 the case to proceed. It really limits the
10 effectiveness of the discovery here. I don't know
11 what happened in this particular instance.
12 There may be occasions when it may fall to that,
13 but that's not the way that it should be conducted
14 as a general rule.
15 We have set up a schedule for production of
16 documents, and that should be adhered to for the
17 depositions.
18 MR. FITZGERALD: Mr. Hearing Officer,I need to
19 clarify something.
20 I don't need the caveat. I was there. Mr.
21 Smith was not an expert witness. He is not designated
22 by the United States as a witness in his personal
23 capacity. He was noticed in the designation of
24 October 26th by the League as a fact witness of theirs.
25 He was being separately identified by the
37
1 United States subsequent to that effort as such.
2 The scheduling order does not address anything
3 but expert witness production. This was discussed
4 well in advance of Mr. Smith's deposition, not with
5 respect to him, but with respect to other fact
6 witnesses as to when their documents would be
7 provided.
8 Fact witnesses that we had subpoenaed of the
9 League's and of other parties on the petitioners'
10 side were not provided in advance of their depositions.
11 It was argued to us that, and I accept that,
12 and the rules say, and we all know it, you don't
13 have to provide them in advance. The scheduling
14 order was moot on the point.
15 So we accepted theirs at deposition, and
16 Dr. Smith's was again as a fact witness being provided
17 at the deposition.
18 Whether it could have been more adequate,
19 whether the bulk of the documents had been provided,
20 whether in fact a lot was requested, they're not
21 entitled to through him, they are separate issues
22 entirely, but the fact of the matter is there is a
23 gap if you will in our ability to anticipate in the
24 discovery order that we needed to address production as
25 well for these types witnesses.
38
1 We may be able to resolve that by agreement,
2 but there has not been any agreement to date on it.
3 MS. KAVANAUGH: As I say, I was not party to
4 the situation, but it was my understanding it was a
5 duces tecum situation.
6 We think setting that aside I would like, we
7 have a counsel meeting next Friday. Let's see if
8 we can work it out.
9 HEARING OFFICER: Yes, let's see if we can
10 work that out. I don't think there's any need to
11 go for a briefing on this particular one. Save
12 yourself the effort.
13 I think the issue that Mr. Fitzgerald just
14 raised is an important one, that the discovery and
15 scheduling order does draw a distinction between
16 experts and those who have not been designated
17 as fact witnesses or those that have not been
18 designated as expert witnesses.
19 Try to discuss that at your meeting next week,
20 and see if you can come to a resolution of it, and
21 if you can't we'll take it up on the 23rd.
22 So let's have a general policy that will
23 govern everybody, so everybody knows where we're
24 coming from on that situation.
25 Okay. Just two days ago the League filed a
39
1 motion to extend entry and access to July 31st. We
2 have done the one order to extend it to May, is it?
3 MR. FITZGERALD: To the end of this month.
4 HEARING OFFICER: Oh, the end of this month?
5 Okay. I know that that various parties supporting the
6 plan have not had an opportunity to respond to the
7 motion, given the time frame.
8 Again when we have everybody here next week
9 maybe...
10 MR. FITZGERALD: Mr. Hearing Officer, I
11 indicated to Mr. Burgess I did not feel the need
12 to file an additional document. We can discuss
13 that very briefly and resolve it.
14 HEARING OFFICER: Okay. All right. I have
15 read their motion.
16 MR. FITZGERALD: Very briefly. The difficulty
17 that we have had with the extension to the end of the
18 extended discovery period, which is what we're
19 dealing with, harkens back to testimony from the
20 experts for the League discussing their need for
21 such an extensive testing program.
22 You were told, Mr. Hearing Officer, the lack
23 of availability of materials for the PB2-10, where
24 no soil sample results in those areas could be
25 obtained until quite far down the line.
40
1 As the result of that, you will recall we totally
2 modified the exchange of data requirement to require
3 water quality data to be exchanged very quickly after
4 each entry, each recurrent entry, but that soil data
5 be delayed to a certain date after receipt from the
6 testing lab.
7 We have received no soil data as yet. The concern
8 we have is if the situation with nonavailability
9 of the lead material from Russia or wherever it's
10 coming from now persists, and I assume it does,
11 we're left with the situation of going through
12 testing to the end of July on data that we will
13 barely see, if at all, before we have to go into
14 hearing, and our experts will have no capacity
15 to look at that and evaluate it. We have seen none
16 thus far.
17 I hate to go back to the witnesses and the
18 experts issue, but it's part and parcel.
19 Their experts are saying, many of them, at
20 least 18 experts by the League out of their 37, "I'm
21 relying on...", or "I need to look at it," or "I'll
22 look at it," and it's going on what the League said
23 in their designation. They say, I'm getting
24 ready to depose Dr. Davis, and he said it on the stand,
25 he said it repeatedly at public sessions at the
41
1 Board and the SAGE meetings, they are not going
2 to be ready if we can't cut them off at some
3 reasonable point, if we say we go on the best
4 available data, the data that's available, and we
5 never finish the process.
6 Again we won't be able to get the final
7 opinions. They will not finalize the opinions.
8 These are scientists. Back off on the scientists.
9 You've got to tell them what to do, and the attorneys
10 need to take hold.
11 I guess we need to set a cutoff date that
12 gives a reasonable period of time for the
13 finalization of data, and if we've got to stop
14 discovery in July, and we fully believe that's necessary
15 to be ready on the hearing schedule we have
16 committed to, we can't go that late in the testing
17 program.
18 They have not even completed their sediment
19 transecting in Loxahatchee yet. They have not been
20 into Everglades National Park at all as yet, even
21 though that doesn't require recurrent flights and
22 testing. It's a one, quick shot deal. They
23 haven't done any of it yet.
24 They are going to get in, they have cancelled
25 the dates that were offered, and there's been
42
1 trouble with these, and the United States is very
2 busy in this process, but even taking that into
3 account it has not come to a conclusion that will
4 allow us to have data in hand and all these experts
5 to have a reasonable time for their experts to look
6 at it and our experts to look at it and cross
7 depose if we go to the end of July. It just can't
8 happen.
9 We'll be precluded in ever getting the final
10 opinions out of them. We suggest something on the
11 order of 1 June or June 15, let them get a
12 June test, recurrent entry in the Loxahatchee,
13 and then cut it off. They are only losing one
14 month's entry, but it gives us a 30-day cushion, and
15 then we would like to know the status of the soil
16 testing and I'll take that up with Mr. Burgess.
17 We have tried to coordinate this.
18 HEARING OFFICER: Well, it sounds like there
19 is a problem getting the results back for some of
20 the tests, but for the water there's not the same
21 problem? Is that the case?
22 MR. FITZGERALD: (Shaking head.)
23 HEARING OFFICER: Okay. How about doing a
24 bifurcated deadline, one for, because as I recall
25 from Dr. Davis' testimony one of the things he
43
1 indicated was his concern about the ability to
2 test in wet and dry seasons.
3 I don't know what the wet and dry season is
4 down there, but if we're going to run into a situation
5 of a contention that they haven't been able to test
6 through one of those cycles, even if it's not a
7 complete year, we can maybe obviate some of that
8 difficulty by...
9 MR. FITZGERALD: We can probably all agree,
10 Mr. Hearing Officer, that if they went through June
11 or July, given when they started, they will not
12 have gotten a full wet cycle. Even going through
13 October, if they went right up to the day of the
14 hearing, they would not get the full water cycle.
15 It just can't be done because of the schedule
16 we're all on, for one thing. We have always taken
17 the position it's not necessary, in any event.
18 They will have gotten a representative portion of
19 the year that might not be representative
20 hydrologically, but no one can control that.
21 We would have to go to a higher court for that.
22 It has been a very wet year. There hasn't been
23 a drought season.
24 HEARING OFFICER: Well, you're saying there
25 wouldn't be any benefit of trying to do a
44
1 separate schedule for water versus soil sampling?
2 MR. FITZGERALD: It doesn't appear, based on...
3 MS. KAVANAUGH: Mr. Hearing Officer, there
4 have been some problems scheduling, and the testing
5 did get started even a month late because of some
6 of the scheduling problems culminating around the
7 schedules, but we will take the soil samples as soon
8 as we can.
9 The Refuge is full of water. If they'd like to
10 go out and draw it down, we'll be glad to do it,
11 but we are trying to move forward as quickly as we can
12 with that aspect.
13 I think it's premature to announce now that
14 there's going to be a cutoff on that, unless there's,
15 we've still got 70 days if it goes to July 31st,
16 August, September, and halfway into October, with
17 that discreet piece of information, and if it is
18 decided by the Hearing Officer it shouldn't be
19 admitted because it's too late, we can take that
20 up then.
21 But this is exactly the same situation we
22 had before. I mean, we're just asking that we be
23 allowed to get as much data as we can reasonably
24 do so.
25 It's our contention, and we presented the
45
1 testimony to you, that because their own SWIM plan
2 is based on 12 months of water quality data, we
3 need 12 months of water quality data in order to
4 adequately rebut or dispute that charge, but we'll
5 take what we can get.
6 We don't see why if the sampling program was
7 going to go to discovery cutoff before why it can't
8 go to cutoff now, and if there's a problem with the
9 soil samples because it has been an unusually wet
10 year, let's address that.
11 I'm hopeful that there won't be a problem.
12 It just seems premature to arbitrarily say all the
13 rest of the discovery will go to July 31st, but
14 the testing program, which is crucial and every bit
15 as important, is going to be cut off earlier.
16 So far as deposing the experts, we told them
17 our four principal scientists. We told them a year ago
18 that they would be involved in this research, and
19 that they would possibly have additional opinions
20 or information as a result of the testing program.
21 At that time we didn't know. We had just started
22 the testing program.
23 We have stated the individuals can be
24 deposed. Dr. Richardson has already been deposed.
25 Dr. Davis is going to be deposed about what they
46
1 know now, which is substantial, and we will have to
2 have final opinions at some point in time for
3 hearing purposes.
4 We have told them that we would be more than
5 willing to let these witnesses, as opposed to some
6 of the others that are unnecessarily in our opinion
7 being scheduled for some sort of followup later on,
8 that these witnesses probably will need followup.
9 They have known that all along. We will make
10 them available, even past discovery cutoff, it it's
11 necessary, and we stand by that representation.
12 So we would like to continue the testing
13 program for the full 12 months. You don't seem
14 inclined to do that, so I really, we urge you to
15 allow us to get as much information as we can, at
16 least through the discovery cutoff.
17 If it changes something, we'll make the
18 exhibits available to them. We are not planning
19 to ambush anybody at hearing with data.
20 MR. FITZGERALD: Mr. Hearing Officer, it becomes
21 an ambush, because the purpose of the cutoff is so
22 people can prepare for the hearing, and we can reach
23 stipulations, get witnesses ready, and prepare the
24 exhibits.
25 There will not be a period when anyone will be
47
1 readily available to sit down with 18 to 36
2 witnesses, 36 of 37 experts they have designated,
3 and something may have changed, say they don't have
4 final opinions or will need the results of this.
5 It's not enough to cite to Dr. Richardson.
6 This is his deposition on that day. He had no
7 final opinions on his own data. He said under
8 oath he had over three years of testing out in
9 the Everglades but had synthesized nothing and had
10 no final opinions.
11 How late do we have to wait? We cannot go
12 to the end of July and then say, "Well, you can
13 do that in September, on the eve of hearing,"
14 when we're trying to get everything else together.
15 We need a firm cutoff. We need the results
16 to be back so that we can finalize this and do what
17 the Legislature said, expedite it and get it to
18 hearing and resolve it.
19 The case turns on the best available scientific
20 evidence, and no scientist ever has enough.
21 I recall Dr. Davis saying he wanted more than
22 one year. He wanted two years. He wanted three
23 years. Dr. Richardson has said three to five years.
24 They will all say that if you let them, just
25 like lawyers always want more than 25 pages.
48
1 We have to cut it off and early enough that
2 we can meet our current schedule
3 HEARING OFFICER: Well, it's clear within the
4 hearing date set back to October that there should
5 be an extension. What I heard is extend it at least
6 until June 30th, and if we need to revisit it at
7 that time I'll listen to what your experts have to
8 say about it, and I want to hear from you as to who
9 needs additional information and what they need,
10 and if we can limit it to a couple of witnesses maybe
11 we can extend it beyond that.
12 MS. KAVANAUGH: Mr. Hearing Officer, I
13 understand that, and obviously we are going to
14 abide by that, but, you know, there are only four
15 scientists who are affected, and again without
16 getting into score cards, the United States' witnesses
17 tell us the same thing, they won't be ready, or
18 they won't tell Dr. Jones' versions of the study,
19 or so on and so forth. We are all in the same
20 boat, and I just suggest that what we're trying to
21 get is the hard, scientific water quality data,
22 and to cut it off prematurely when they haven't
23 shown they will be unfairly jeopardized is going to
24 be a harsh result.
25 HEARING OFFICER: Well, the problem that I
49
1 have is to allow testing to go on to the final
2 date of the discovery cutoff means that there are
3 going to be test results that haven't been analyzed
4 at the time of the discovery cutoff.
5 If necessary we may need to make a few minor
6 accommodations to the discovery cutoff, and I'll
7 listen to that, but at this point we need to try to
8 establish a framework in which all the testing is
9 completed, so that opinions can be formulated within
10 the scope of the discovery cutoff.
11 If we don't do that, I'm afraid we will end
12 up with experts who have changed their opinions
13 based on the last day of test results that came on
14 the last day of the discovery cutoff that the other
15 side will not know about.
16 I just don't want to see that happening. I
17 think June 30th is a reasonable extension within
18 the constraints that we have, and if we get close
19 to that and you realize or feel that you need
20 additional time, bring the witnesses in, and we'll
21 take it up.
22 MS. KAVANAUGH: Thank you, sir.
23 MR. NETTLETON: Could I get a clarification
24 from Ms. Kavanaugh? She said there were only four
25 scientists. I'd like to know who they are.
50
1 MS. KAVANAUGH: The same ones, Dr. Davis,
2 Dr. Dennis, Dr. Patrick, and Dr. Richardson.
3 MR. NETTLETON: Thank you.
4 MR. GREEN: We have others who would like to see
5 it also, for the record.
6 MR. NETTLETON: Would you name them?
7 MR. GREEN: I don't think I'm required to.
8 HEARING OFFICER: What are you talking about
9 here? I'm not sure. Are we talking about anybody
10 who wants to see the results of the testing process?
11 MS. KAVANAUGH: From my point of view I'm going
12 on our principal scientists that we know will, if they
13 testify at all, would be relying on the testing
14 data. It's those four scientists.
15 HEARING OFFICER: Mr. Green, you're saying there
16 are additional experts?
17 MR. GREEN: Who would like to see the data.
18 HEARING OFFICER: Will they be relying upon
19 the data?
20 MR. GREEN: They might. I think it may be very
21 important to the simulation modeling and the water
22 quality analysis, the statistical analysis of all
23 parties.
24 Every party to this case will want to see the
25 data. I just didn't want to waive that right by
51
1 having just the four mentioned.
2 HEARING OFFICER: I understand, and this is not
3 a deposition or an interrogatory to rule that out,
4 but I would assume that those witnesses who might
5 be relying upon that data will disclose that at
6 their deposition?
7 MR. GREEN: Sure.
8 HEARING OFFICER: So everybody will be
9 alerted as to who they are.
10 MR. GREEN: Thank you.
11 HEARING OFFICER: Okay.
12 MR. FITZGERALD: I will submit an amendatory
13 order, Mr. Hearing Officer, incorporating your
14 ruling.
15 HEARING OFFICER: Circulate it around.
16 MS. KAVANAUGH: It was our motion. We'd like
17 to review it.
18 HEARING OFFICER: Okay, well, talk about it at
19 your meeting next week.
20 MR. FITZGERALD: I'm not on the billing cycle,
21 Mr. Hearing Officer. They can draft it, and I'll
22 review it.
23 MS. KAVANAUGH: Being a nice guy.
24 MR. FITZGERALD: Exactly.
25 HEARING OFFICER: Well, see if you can reach...
52
1 MR. FITZGERALD: Mr. Burgess and I are able to
2 crank this stuff out with no problem.
3 MS. PONZOLI: Wait a minute. Ms. Kavanaugh,
4 I think we've just been maligned.
5 MR. FITZGERALD: Maybe Mr. Burgess can draft it,
6 and I'll review it.
7 MS. KAVANAUGH: I intend to turn it back over to
8 mr. Burgess.
9 HEARING OFFICER: There we go. All right. See
10 if you can maybe agree on it at the next meeting
11 and submit it, and I'll sign it.
12 The deposition of Polopolus and James Richardson,
13 these are the economists, and as I understand a
14 problem according to the League is that they are
15 waiting for the 20-year study from Hazen and Sawyer.
16 Is that where we are?
17 MS. KAVANAUGH: Yes, sir. That's where we are.
18 HEARING OFFICER: Okay, one question that
19 came to me...
20 MS. KAVANAUGH: There are two aspects of it.
21 One is that, and the other is essentially what
22 you pointed out earlier, and that is the economics
23 issues have only recently been crystallized, and
24 as you know it was our original position that
25 economics wasn't an issue, because the District
53
1 had not done an economic impact study, and so we
2 also, our economists, they don't have final
3 opinions yet.
4 HEARING OFFICER: Okay. Well, the one thing
5 that struck me in reviewing the motion was the
6 reference to the Hazen and Sawyer report, and all of
7 the discussions that we have had previously regarding
8 that, it was my understanding that the District had
9 not relied and does not intend to rely on the Hazen
10 and Sawyer report for the plans.
11 That raised initially in my mind whether that's
12 right or wrong or whatever, it will all come out at
13 the final hearing, but it raised in my mind why we
14 needed to have the update of the Hazen and Sawyer
15 report for these experts to complete their analysis.
16 MS. KAVANAUGH: Well, Mr. Hearing Officer,
17 bearing in mind the nature of this proceeding, there
18 is an agency decision on the table that we dispute,
19 and up until a few weeks ago it was undisputed that
20 the agencies had not considered economic impact
21 in preparing the agency position.
22 Let me put it this way. They had not identified
23 documents, economic impact studies or anything like
24 that, and the Hazen and Sawyer report was proceeding
25 along outside of this proceeding, and I guess
54
1 this is a function of our not maybe understanding
2 what the agency decision is, because, as I was at
3 Dr. Johns' deposition last week, but it's my
4 understanding that the District does intend to rely
5 on the Hazen and Sawyer report but not the one that's
6 out, the next one, and I just don't know. Maybe this
7 is the time to clarify that.
8 But our economist, we thought there were no
9 facts in dispute, because there were no, there was
10 no economic impact consideration, and now the
11 Hearing Officer has indicated you have ruled
12 economics you believe is part of the water quality
13 issue between the SWIM plan and the permit, so there
14 will presumably be some position taken by the
15 District, but none has been taken yet that we know
16 of. And that's our problem.
17 We had originally intended only to present an
18 economist to rebut anything, as we indicated, but
19 not to do an affirmative case. That may be
20 changing now. But they didn't have final opinions
21 yet.
22 If the District's draft report was to come out
23 in March and now is coming out in April is going
24 to be the position, we kept saying we can have our
25 economists review it and have some opinions in a
55
1 very short period of time, but there's nothing for
2 them to have an opinion about yet from our
3 perspective.
4 HEARING OFFICER: Well, I don't know if Grace
5 Johns was listed as an expert on the District's
6 witness list.
7 MR. NETTLETON: Do you want me to explain where
8 we are? It's taken a little out of order here.
9 The League has indicated that they are only
10 interested in rebutting Grace Johns' Hazen and Sawyer
11 report. I'd again like to stress, as we have
12 throughout this, that the Hazen and Sawyer economic
13 impact assessment studies are not being conducted
14 for purposes of this litigation but conducted
15 outside of the litigation under contract with the
16 District, that the purpose of those studies is
17 actually stated in the SWIM plan, if you look where
18 the scope of work is stated, where it's verbatim
19 taken out.
20 It says the purpose of that is to assist the
21 District in making funding decisions, I'm paraphrasing,
22 and it is there.
23 The District has requested that study, the
24 second study that's underway now, to assist them in
25 their ultimate decision to make the funding decisions,
56
1 the cost of allocations of the regulatory program.
2 None of those decisions have been made yet.
3 None of those decision are made by the SWIM
4 plan, and none of those decisions are at issue in
5 this proceeding, which is why we started out this
6 whole thing saying all this was irrelevant.
7 Now as I recall at the January hearing when
8 this thing kind of came to a head the Hearing Officer
9 indicated that the statute did not require us to have
10 an economic impact study to support the SWIM plan.
11 It was not a prerequisite. We were as the District
12 under no affirmative obligation to go forward with
13 testimony concerning the economic impact showing to
14 justify the SWIM plan.
15 However, you would allow the petitioners to
16 address this issue in the context of the socioeconomic
17 issues and the context of the moderating provisions.
18 Now the Hazen and Sawyer work, Grace Johns' work,
19 those are synonymous essentially, is not relevant
20 to the moderating provisions, however those economic
21 issues fit into the moderating provisions. She
22 has never been asked to do that.
23 If we ever hear what their position is on that,
24 which we have not yet heard, we have not yet heard
25 their economist express any opinions on how the
57
1 socioeconomic effects fit into this moderating
2 provision argument, we may be using Grace Johns at
3 that point and Hazen and Sawyer for rebuttal
4 testimony.
5 Now so far as listing her as an expert in this
6 case, I would go back to if you remember the
7 sequence we have come through here, we listed Grace
8 Johns of Hazen and Sawyer as an expert witness to
9 testify on the issues of economic impact of the
10 regulatory programs and the SWIM plan, as well as
11 the economic benefits. Those happen to be two of
12 the studies she was working on.
13 We did that in an abundance of caution,
14 although we were still arguing, if you recall, that
15 it was irrelevant in this proceeding, yet the
16 petitioners were raising it, and so we named them,
17 because we had a cutoff for naming witnesses, and
18 we wanted to make sure we were covered. Quite
19 frankly, I don't think the issue is still crystallized.
20 To that extent that she is named there, and
21 we've still got her listed to present testimony on
22 those issues, but her testimony will essentially be
23 the reports that she has done.
24 Now just to give the historical history of
25 these reports that she has done, which again are
58
1 outside of this litigation, we did an economic benefits
2 study, and I don't believe the particular experts
3 are involved, Jim Richardson and Leo Polopolus,
4 are involved in rewriting that. That is completed,
5 and there's nothing else going on with regard to
6 that.
7 The other study we did was the economic impact
8 study. The final report was issued in July of 1992.
9 Subsequent to that it was supplemented in what's
10 called a final completion report which came out in
11 October of '92. That October report supplemented
12 the July report with one or two chapters, mostly
13 dealing with the potential mitigating things that
14 could be used to mitigate the impact. It did not
15 alter the ultimate conclusions of the original July
16 final report or the methodology. The methodology
17 stayed the same.
18 Since July these particular witnesses involved
19 here, Dr. Polopolus and Richardson, have been
20 publicly criticizing the methodology and the
21 conclusions of that report. For them to come in
22 here and say they have no opinions I think just
23 smacks of something. I don't know.
24 They obviously have opinions, because they
25 have been talking about them publicly.
59
1 Now if they want to say, "But we're only going
2 to deal with the 20-year report," the methodology,
3 Grace Johns was deposed for three days, and I was
4 there. She testified the methodology is not
5 significantly different from what was done in the
6 10-year report, and what she is doing is looking at
7 some of the additional data that's been collected in
8 the meantime, and they're also addressing two
9 additional issues that were not addressed in the
10 initial report, namely those of soil subsidence and
11 the U. S. policy on price supports for this. Those
12 particular issues again will go to the base line
13 projections, which really have no effect on the
14 impact of anything. If anything, in my humble opinion,
15 as an economist we are lessening any impacts.
16 I would submit if the League is here saying
17 they are only interested in rebutting the 20-year
18 impact study, which at this point we have not indicated
19 we intend to put on but reserve our right, because
20 quite frankly I'm not exactly sure what the issue is
21 in the case, but if their only interest in that,
22 I told Mr. Burgess on the third day of the deposition,
23 when he first raised this with me, if we intend to
24 put her on for the 20-year study, then clearly they
25 will have the right to come back and depose her
60
1 again, and then gets more into a redeposition.
2 HEARING OFFICER: If I'm hearing you correctly,
3 you don't really care what Polopolus and Richardson
4 have to say regarding Grace Johns' 20-year study
5 anyway?
6 MR. NETTLETON: I certainly have an interest.
7 They are saying they don't have any opinions. I'm
8 saying if they do have opinions, and what I said is
9 we have not decided whether or not to put on the
10 impact, because we're not sure it's an issue in the
11 case.
12 To the extent we decide from further research
13 or whatever as we approach trial that it would be
14 prudent for us to put on Grace Johns to testify on
15 the economic impact, and they are going to present
16 rebuttal testimony, certainly we want to know
17 what they are going to say about it.
18 They have been saying it since July. I mean,
19 they have been out there criticizing it. They can't
20 say they don't have opinions about it.
21 They have presented publications and charts
22 and things at different meetings, so they certainly
23 have analyzed the data and the work she's been
24 doing, and I guess I'm more arguing against the
25 motion for protective order as opposed to this. I
61
1 think we need to go forward with the depositions.
2 HEARING OFFICER: This is similar to the situation
3 last time. I think it's your call, saying these
4 two witnesses haven't finalized opinions regarding
5 the 20-year objections, because you haven't seen it
6 yet.
7 MR. NETTLETON: That's correct.
8 HEARING OFFICER: Now if you decide you need to
9 have testimony of these witnesses regarding the
10 20-year opinions, you will have to come back and
11 explain to me why and why you couldn't wait. I'm going
12 to leave that up to you. Let's go forward with
13 the depositions.
14 MS. KAVANAUGH: Could I inject one thing?
15 What we're struggling with is it was our
16 understanding that the first report wasn't going to
17 be relied upon by the District.
18 That being the case, and Dr. Johns states that
19 the 20-year report will supersede the 10-year report,
20 and I'm not going to read it to you, but we have
21 her deposition, the transcript here.
22 If they are going to rely on the first report,
23 then our consultants will have opinions. But if
24 they're not going to rely on it at all we don't want
25 to pay our consultants to review and develop
62
1 opinions on a report that's not even going to be
2 used at trial.
3 This was a whole, separate proceeding, and these
4 two gentlemen were retained for other purposes,
5 outside this proceeding, when they first addressed
6 the 10-year report. If you will recall, they all
7 said Hazen and Sawyer is not part of the litigation.
8 So that's all I'm trying to find out.
9 Are they going to rely on the 10-year report?
10 Are they going to rely on the 20-year report and
11 develop appropriate opinions? We should not have
12 to pay experts to develop opinions on documents
13 that will not even be used.
14 HEARING OFFICER: Mr. Hoffman has been quiet
15 all day.
16 MR. HOFFMAN: I just woke up. "Snake." I'm
17 glad I came.
18 I have a deposition schedule by the United
19 States Government in about a week or so of Ellen Wine.
20 I wanted to cover it for the record real quickly
21 here. I noticed in my interrogatories I was asked
22 why my witnesses were and what their background was
23 or whatever, and we listed Ellen Wine, a CPA, by
24 one of the farming organizations, and we say
25 expertise, financial and accounting economic data.
63
1 Upon receipt of corrected Hazen and Sawyer report
2 we will analyze the reasonableness of her assumptions
3 and the impact, if any, of any incorrect assumptions.
4 It seems to me the best thing for me to do is to
5 have her be deposed. This is not a complicated
6 witness in the sense she's not going to go out
7 and express theories of economics. All she's going
8 to do is say, "We get 'X' dollars for radishes,
9 not 'Y' dollars, and if you use 'Y' dollars you'll
10 get a wrong conclusion."
11 In other words, so I don't see why I should stop
12 them or ask them not to take the deposition. I
13 cannot tell myself any more what will be discussed.
14 She only knows what she knows. We will find that
15 out. All I'm trying to do is explain that that's
16 what I intend to do, unless the federal government
17 doesn't want to take her deposition for some reason.
18 She'll tell them what she knows about the
19 discrepancies in dollar amounts, whatever, for the
20 farmers, and if it's relevant they know what she
21 knows. Again it's different I think from Ms.
22 Kavanaugh's situation where she has a Ph.D. who's
23 going to express more in the opinion range than,
24 "This is the facts and the extrapolation of facts."
25 So I'm now sort of stuck. I list her as
64
1 commenting on the Hazen and Sawyer, which is not the
2 case, and some people think they know what the
3 economic issues are. I'm not so sure I know.
4 So we're going to go ahead and be done with
5 her, but...
6 MR. SAXE: Mr. Hearing Officer, with all due
7 respect, it was the United States that noticed the
8 depositions of Dr. Polopolus and Dr. Richardson, and
9 those are the depositions that the League is seeking
10 protection on, so before we verge into matters
11 that aren't even before the Hearing Officer I'd like
12 to have an opportunity to give you some insight into
13 why we feel the League's motion is entirely baseless.
14 The SWIM plan was published over a year ago,
15 on March 1, 1992, and if the League is planning
16 on challenging the SWIM plan based on the economic
17 impact of the SWIM plan it has had over a year's
18 time to develop that case.
19 Based on the rulings that you have already made
20 it's clear that any economic impact analysis report
21 Hazen and Sawyer has prepared or is preparing is
22 not an affirmative obligation of the District or
23 of the respondent/intervenors to present and
24 defend in its prima facie case.
25 To put, as you put it in your October 30th
65
1 hearing, to put the SWIM plan in the context of what
2 it contains and why it contains it.
3 Now in light of those rulings, for the League
4 to say that they don't have any opinions because
5 they're waiting for ongoing work being done by the
6 District outside the context of this litigation to be
7 completed, the logic to that eludes me.
8 First of all, if they're allowed to delay
9 discovery because of that ongoing administrative
10 process, they can do so basically indefinitely.
11 There's no guarantee that any Hazen and Sawyer work
12 product will be done by any given date, including
13 this particular one being completed in April, and
14 in light of your rulings there's no requirement
15 that it be completed by any particular date in the
16 litigation timeframe.
17 Further, the point that...
18 HEARING OFFICER: Well, let me just interrupt
19 you for a second. I agree with what you're saying,
20 but the thing that's causing me a little bit of
21 concern is what Mr. Nettleton just said that leads
22 me to at least believe that there is a possibility
23 that the District may decide to offer the study as
24 part of its prima facie case and may offer the
25 updated version as part of its case.
66
1 So while I agree with the characterizations
2 you have made of the prior hearings, I think what I
3 just heard from Mr. Nettleton is the first time I
4 have heard that, and, you know, I'm not trying to
5 force your hand one way or the other. That's your
6 call as to what's appropriate for your case, but if
7 that's, you know, at some point that decision has
8 got to be made.
9 What I think is a waste of time and what I
10 hear Ms. Kavanaugh saying she wants to avoid is to
11 have the process go forward, have the witnesses
12 deposed, and then suddenly find out that the District
13 is going to be introducing an updated 20-year study
14 that may, maybe the procedures for the analysis
15 contained in the 20-year study is the same but spread
16 out over a longer period of time, but maybe it's not.
17 I don't know that.
18 But if we go ahead with these witnesses now
19 and they are testifying based upon their analysis
20 of the 10-year study, and then we find out not only
21 is the 20-year study different but the District
22 intends to offer that 20-year study as part of its
23 initial presentation or prima facie case, then
24 we're going to have to go back and redepose all these
25 witnesses and go through all of that. That's what I
67
1 think we want to try to avoid.
2 MR. SAXE: Well, I'm not going to answer for
3 the District with respect to the narrow point of
4 whether it would elect to include an economic
5 impact showing gratuitously in an abundance of
6 caution, as Mr. Nettleton has indicated, in a prima
7 facie case, rather than reserving its right to respond
8 to any challenge brought by the petitioners
9 questioning specific assumptions, conclusions, or
10 recommendations in the SWIM plan. I think that's
11 something that may or may not need to be addressed
12 today, and I'm not, I don't know that it's necessary
13 to address it, because there are some other aspects
14 of the economic discovery that I don't believe
15 have been mentioned and I think need to be
16 mentioned.
17 The economics experts for the United States,
18 for the District, for the environmental groups, and
19 for the Coop have all been presented for deposition
20 at least one time already. The League has
21 participated in most of that discovery. The League
22 has all the documents that have been produced in
23 the context of that discovery and has or will receive
24 all the transcripts that are coming out of those
25 depositions.
68
1 Furthermore, as Mr. Nettleton indicated, the
2 experts designated by the League, Doctors Polopolus
3 and Richardson, it's evident in the public record in
4 the discovery that has been received so far in the
5 case that these individuals have done substantial
6 work already analyzing the economic impact of the SWIM
7 plan, and that Hazen and Sawyer report that's
8 already been done, and in the August, 1992, Governing
9 Board hearing Dr. Polopolus presented analysis
10 purporting to show that implementing the STAs,
11 BMPs, the $25 per acre assessment would wipe out
12 half the acreage in the EAA, and he since asserted
13 that these actions would wipe out all the acreage of
14 agricultural production in the EAA.
15 Now I have some documents here, and there are
16 significant numbers of documents that are already
17 provided through discovery and matters of public
18 record. When we have our opportunity if the Hearing
19 Officer is included to grant protection on this
20 motion we'll be happy to file this, the existing
21 documents that we do have that show there are at
22 least some significant amounts of opinions that
23 have been developed.
24 I think our position would be that so far
25 apparently none of these economics experts have been
69
1 designated, have final opinions, and I think a lot
2 of it is a problem of the circuitous nature of
3 everybody's concept...
4 HEARING OFFICER: Are you talking about your
5 own economics?
6 MR. SAXE: I'm talking about all the economics
7 experts who have been deposed thus far, not just the
8 United States, but others.
9 I think it's highly likely that there will
10 need to be a second round of depositions with
11 respect to all of those if anybody is going to
12 present a case based on economic impacts.
13 We don't need to have the League be ready to
14 give final opinions for it to give more than the
15 amount of discovery I'm sure we could take in
16 two- or three-day deposition periods based simply
17 on the extensive body of work that they apparently
18 have already done on these issues.
19 I'm not sure I understand why the League should
20 be distinguished from the rest of the parties with
21 respect to trying to manage the discovery process.
22 It would be highly prejudicial to the United
23 States' ability to develop a case responding to the
24 League's challenge based on economic impacts to
25 take a one-month chop out of the scant three months
70
1 remaining for the United States to develop its
2 response to the League's economic case. I did an
3 informal count before the hearing based on the
4 draft master schedule, and there are at least 250
5 witness days of depositions remaining to be taken
6 before the close of discovery at the end of July,
7 and that doesn't include numerous of these final
8 opinion depositions, including, for instance, the
9 economic experts.
10 So what the League is proposing to do is to
11 push back another month in this three-month period,
12 creating an impossible burden I think on all the
13 parties to have an opportunity to respond to the
14 League's challenge based on economic impact.
15 MS. KAVANAUGH: Can I respond? Mr. Hearing
16 Officer, you have been hearing an awful lot about
17 this from all of us. There are other things going
18 on relating to this proceeding or at least to the
19 SWIM plan.
20 It's an ongoing process. Mr. Green read to you
21 earlier Dr. Kadlec's, the points he makes for
22 the respondent and the intervenors, and he can't
23 give you his opinions about the STAs. There are
24 definitely wheels within wheels outside this
25 proceeding.
71
1 Dr. Johns has been rendering opinions and
2 offering reports outside this proceeding. Doctors
3 Polopolus and Richardson have been responding
4 outside this proceeding. Dr. Johns has issued,
5 as described by Mr. Nettleton, a report, and an
6 amended report, and is now preparing yet another
7 report.
8 If the District is not going to rely on the first
9 two Dr. Johns reports in any way, then we don't intend
10 to present any opinion evidence as to those reports
11 in any way, because there's no need to. That's not
12 a fact in dispute.
13 That's all I'm trying to do, to get some handle
14 on what's going to be presented at trial, so my
15 experts can formulate opinions.
16 We clearly still have a disagreement among the
17 parties about the economic issues. I again state
18 it was the League's initial position that the
19 District undisputedly did not consider the
20 socioeconomic impacts. If the District is now
21 through Dr. Johns considering those socioeconomic
22 impacts which are a part of the proceeding, we just
23 want to know, I mean, we don't view that as our
24 affirmative burden to put on the case, except in
25 response to the District's agency action and position
72
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