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, MAY 21, 1993

20 (2:13 P.M. - 2:28 P.M.)

21 LOCATION: HEARING ROOM 3, DESOTO BUILDING

1230 APALACHEE PARKWAY

22 TALLAHASSEE, FLORIDA

23 REPORTED BY: SUE HABERSHAW JOHNSON

CERTIFIED COURT REPORTER

24 REGISTERED PROFESSIONAL REPORTER

NOTARY PUBLIC

APPEARANCES:

Representing Petitioners, Sugar Cane Growers

3 Cooperative of Florida, Roth Farms, Inc.,

and Wedgworth Farms, Inc.:

WILLIAM H. GREEN, ESQUIRE (VIA TELEPHONE)

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 WILLIAM L. EARL, ESQUIRE (VIA TELEPHONE)

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 (VIA TELEPHONE)

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 (VIA TELEPHONE)

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 (VIA TELEPHONE)

3 Popham, Haik, Schnobrick & Kaufman, Ltd.

400 International Place

4 100 Southeast Second Street

Miami, Florida 33131

5 (305-539-7222)

-and-

6 ABNER T. COOPER, ESQUIRE (VIA TELEPHONE)

Assistant District Counsel

7 South Florida Water Management District

3301 Gun Club Road

8 West Palm Beach, Florida 33416-4680

(407-687-6315)

Representing Intervenor, The United States

10 of America:

11 THOMAS A. WATTS FITZGERALD, ESQUIRE (VIA TELEPHONE)

12 KATHY STARK, ESQUIRE (VIA TELEPHONE)

MAURINE DONELAN, ESQUIRE (VIA TELEPHONE)

13 Assistant United States Attorneys

Southern District of Florida

14 Suite 627

155 South Miami Avenue

15 Miami, Florida 33130-1693

(305-536-4425)

Representing Intervenor, Florida Department of

17 Environmental Regulation:

18 LEE M. KILLINGER, ESQUIRE (VIA TELEPHONE)

Assistant General Counsel

19 Department of Environmental Regulation

Twin Towers Office Building

20 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

21 (904-488-9730)

1 Representing Intervenor, Florida Wildlife

Federation:

KEN WRIGHT, ESQUIRE (VIA TELEPHONE)

3 111 South Martin Luther King, Jr., Blvd.

P.O. Box 1329

4 Tallahassee, Florida 32302

(904-681-0031)

Representing the Miccosukee Tribe of Indians:

SAMUEL B. REINER, II, ESQUIRE (VIA TELEPHONE)

7 Spencer and Klein, P.A.

801 Brickell Avenue, Suite 1901

8 Miami, Florida 33131

(305-374-7700)

* * * * *

ALSO PRESENT:

GERALD CORMICK, MEDIATOR (VIA TELEPHONE)

12 VICTORIA MINETTA

KIRK BROWN (VIA TELEPHONE)

* * * * *

INDEX _____

ITEM PAGE ____ ____

HEARING COMMENCED . . . . . . . . . . . . . . . . . . 4

HEARING CONCLUDED . . . . . . . . . . . . . . . . . . 17

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

20 * * * * *

1 PROCEEDINGS

2 (WHEREUPON, THE HEARING COMMENCED AT 2:13 P.M.)

3 HEARING OFFICER: This is Steve Menton here. Who

4 do we have on the phone?

5 MR. GREEN: Mr. Menton, you have Bill Green for the

6 Cooperative. I could just run through the list.

7 HEARING OFFICER: Why don't we have everybody

8 identify themselves one by one, so just we know who's

9 here.

10 MR. EARL: Bill Earl for the Sugar Cane League.

11 HEARING OFFICER: I have a court reporter in my

12 office, so you need to speak up a little bit.

13 MR. COLE: Terry Cole for the Florida Fruit and

14 Vegetable Association.

15 MR. HYDE: Bill Hyde, also for the Florida Sugar

16 Cane League.

17 HEARING OFFICER: Any other petitioners? All

18 right. How about for the South Florida Water Management

19 District?

20 MR. NETTLETON: Paul Nettleton, Popham, Haik, for

21 the District.

22 Abner Cooper for the Water Management District and

23 Kirk Brown of the Palm Beach Post is here as well.

24 HEARING OFFICER: Okay. Who was from Popham, Haik?

25 Was that Mr. Nettleton or Mr. Reid?

1 MR. NETTLETON: Nettleton, sir.

2 HEARING OFFICER: Okay. All right, how about for

3 DER?

4 MR. KILLINGER: Lee Killinger.

5 HEARING OFFICER: Okay. The U.S. Government?

6 MR. FITZGERALD: Tom Watts Fitzgerald in Miami, and

7 with me are Assistant U.S. Attorney Kathy Stark and

8 Maurine Donelan.

9 HEARING OFFICER: Okay. And for the conservation

10 groups?

11 MR. WRIGHT: Ken Wright.

12 HEARING OFFICER: Okay. Anybody else I missed?

13 The Indians?

14 MR. REINER: Miccosukee Indians, Mr. Samuel Reiner

15 with Spencer and Klein.

16 HEARING OFFICER: All right.

17 MR. GREEN: Also Mr. Gerald Cormick is on the line,

18 who is the mediator working with the parties in a

19 separate forum.

20 HEARING OFFICER: Okay. Mr. Cormick?

21 MR. CORMICK: I am here.

22 HEARING OFFICER: Have you solved it?

23 MR. CORMICK: Not quite.

24 HEARING OFFICER: All right. Where are we?

25 MR. EARL: Mr. Menton, this is Bill Earl of the

1 Florida Sugar Cane League.

2 Where we stand right now, as you know, we have been

3 involved with a 30-day mediation period that ended last

4 Tuesday. We are pleased to report to you that there has

5 been substantial progress made in the mediation, and

6 should you have specific questions Mr. Cormick of

7 Seattle is on the line to answer specific questions if

8 that is necessary.

9 The principal participants believe another

10 mediation period is essential to resolve this case, and

11 they will speak for themselves, I am sure, but that is

12 the position as I understand it of not only the Sugar

13 Cane League, but the United States, the South Florida

14 Water Management District, DER, Florida Fruit and

15 Vegetable Association, and the Sugar Cane Growers

16 Cooperative.

17 I understand there may be some dissenting decisions

18 by the Miccosukees and the environmental groups, but the

19 agencies and the principal participants to date share

20 the position I just relayed to you, as I understand it.

21 We believe that three things need to be done,

22 Mr. Menton, to move the mediation process forward. In

23 fact, as the parties have discussed the matter, these

24 three things are what the mediation is contingent upon

25 your consideration, and perhaps an order implementing

1 these three things.

2 One would be a 30-day continued stay. The second

3 would be a 30-day extension of existing discovery

4 deadlines, so that nothing would be lost should the

5 process not be ultimately fruitful, and a 30-day move

6 back in the final hearing date, because as you recall

7 the last time we spoke to you about this we did not move

8 that back, and everyone has lost trial preparation time

9 and the normal things that would have to be done.

10 So the organizations I mentioned to you earlier,

11 the Sugar Cane League, the United States, the District,

12 DER, the USC, and the Sugar Cane Growers Cooperative

13 believe strongly that it is essential that the final

14 hearing date would be moved back, so that we may proceed

15 with the next stage of mediation.

16 HEARING OFFICER: Okay. Do any of the parties who

17 have been named as agreeing with this proposal have

18 anything they want to add to what Mr. Earl just said?

19 MR. COLE: This is Terry Cole, Florida Fruit and

20 Vegetable. We concur.

21 MR. GREEN: Bill Green for the Cooperative.

22 Mr. Menton, we concur with what Mr. Earl has said, and

23 we, too, believe that substantial progress has been

24 made, and we would recommend continuation of the stay

25 and the other points that Mr. Earl raised be favorably

1 considered by Your Honor.

2 HEARING OFFICER: All right. What about the

3 proponents of the SWIM plan, the District, and the

4 federal government?

5 MR. NETTLETON: Mr. Hearing Officer, this is Paul

6 Nettleton on behalf of the District.

7 I can state that the District is extremely

8 encouraged by the progress that has been made in the

9 mediation. We do concur in what Mr. Earl has stated.

10 We think that considering the complexity and the number

11 of issues involved and the divergence of interest and

12 just the acrimony that has gone on over the years in

13 this matter that the progress that has been made in the

14 last 30 days is extraordinary.

15 We are convinced that an additional 30-day period

16 of mediation would be fruitful, and we are optimistic of

17 the possibilities of resolving this thing without the

18 need of further litigation.

19 In light of that we do believe, however, as

20 Mr. Earl stated, that an additional 30-day stay would be

21 necessary due to the intense efforts if that is

22 necessary and that is going into this mediation effort,

23 which involves not only the principals, but also the

24 attorneys as well as technical representatives, and the

25 practicalities of litigating would preclude that intense

1 effort if it was attempted simultaneously.

2 Because of the practicalities involved so far as

3 the hearing date we do also concur in Mr. Earl's

4 statement that we understand that the hearing date would

5 need to be moved back 30 days to accommodate it in the

6 event the mediation would not be successful due to the

7 sheer number of depositions that would need to be taken.

8 Needless to say, however, Mr. Hearing Officer, we

9 would not be concurring in this if we weren't genuinely

10 optimistic of the potential for success in the process,

11 as we are looking forward towards the ultimate

12 resolution of this matter, but we feel that the

13 speediest resolution is through mediation if it can be

14 accomplished, and, like I said, we are very optimistic

15 about what has occurred in the last 30 days and feel

16 that an additional 30 days would be extremely helpful,

17 and we could resolve this matter.

18 So we join in the request that was set forth by

19 Mr. Earl.

20 HEARING OFFICER: Okay. How about the U.S.

21 Government? I mean, if you agree, just tell me you

22 agree. You don't need to go through a litany.

23 MR. NETTLETON: Sorry.

24 MR. FITZGERALD: Mr. Hearing Officer, you put me at

25 such a disadvantage being at the end of that. We concur

1 with the request.

2 HEARING OFFICER: Okay.

3 MR. KILLINGER: As does DER.

4 HEARING OFFICER: Okay. So at this point you are

5 just agreeing to a 30-day move back in the hearing date?

6 Is that what I am hearing?

7 MR. EARL: Also a stay of the time of litigation,

8 Mr. Hearing Officer, so that there would be no

9 depositions during this mediation period.

10 HEARING OFFICER: Okay.

11 MALE VOICE: And, excuse me, Mr. Menton, also a

12 30-day extension of any existing discovery deadlines.

13 HEARING OFFICER: Yes. I understand that. I knew

14 there were the three points. I just wanted to make sure

15 in terms of the final hearing date that you just want to

16 move it back 30 days. I think we have it scheduled now

17 to begin in October, so we are looking at November, the

18 beginning of November, is that right? That's if it

19 needs to go to hearing.

20 MR. EARL: I believe November 15th, if I recall.

21 COURT REPORTER: I need names, gentlemen.

22 HEARING OFFICER: The court reporter needs your

23 name. You need to identify yourself when you speak.

24 MR. EARL: I am sorry. This is Bill Earl. Yes, we

25 would be moving it back. It is October 13th now. We

1 would be moving it back to November 15th, a Monday.

2 HEARING OFFICER: Okay. All right. So let me hear

3 from the Indians and the conservation group if they are

4 in opposition to the request.

5 MR. WRIGHT: Mr. Menton, this is Ken Wright for the

6 environmental intervenors.

7 We are guardedly optimistic that progress can be

8 made in an additional 30-day period, but we are

9 concerned that all parties have to be included in all

10 aspects of the mediation.

11 The environmental intervenors have been included to

12 a great extent, but there have been times when they

13 haven't been included, as we that in order for mediation

14 to be ultimately successful and to avoid just going

15 through the process and ending up in a protracted

16 litigation, in the long run we have to have agreement

17 from all of the parties that indeed everyone can

18 participate in all aspects of the mediation.

19 HEARING OFFICER: Okay. Mr. Wright, that's really

20 an issue for Mr. Cormick to decide how he wants to

21 handle the mediation. I am not going to tell him how to

22 do his job.

23 But I think you understand that ultimately you've

24 got a right to challenge the result of the mediation if

25 you don't agree with it, and we could end up with a

1 hearing date with just you if it comes down to that, but

2 I am not going to tell Mr. Cormick how to do his job.

3 MR. WRIGHT: Right.

4 HEARING OFFICER: But, so am I hearing you

5 correctly then that you do not oppose the three matters

6 that Mr. Earl brought up, the continued stay, the

7 extension of the discovery deadlines, and the 30-day

8 move back of the hearing date?

9 MR. WRIGHT: No, that's not correct, Your Honor.

10 We don't oppose the additional 30 days for additional

11 mediation to go on, stay in discovery, and we don't

12 oppose an additional 30 days for discovery, but we do

13 oppose the continuation of the hearing date for 30 days,

14 because we are concerned that it is more than just 30

15 days that could be involved here.

16 When you move from October 13th to November 15th

17 and the length that this hearing is going to take, we

18 are going to be more than likely moving into the holiday

19 period and all of the attendant delays there, and we are

20 concerned that if we extend beyond the period of time

21 that has been blocked out, then we may not be able to

22 get back to a hearing until some later date, and so our

23 concerns along those lines are 30 days is not a

24 considerable problem, but if we are looking at an

25 additional problem, you know, and going back until April

1 and so forth, then we've got serious problems with that.

2 HEARING OFFICER: Okay. Well, let me hear from the

3 Indians.

4 MR. REINER: Mr. Hearing Officer, this is Samuel

5 Reiner with Spencer and Klein. We concur with

6 Mr. Wright's position with respect to all three of the

7 points raised and also share a concern regarding the

8 final hearing date, the apparent possibility that it

9 might get moved up into 1994.

10 HEARING OFFICER: Okay. So you agree though that

11 the continued stay of discovery and an extension of the

12 discovery deadlines is all right? Is that right?

13 MR. REINER: That's exactly right.

14 HEARING OFFICER: All right.

15 MR. REINER: We have an objection to the moving

16 back of the final.

17 HEARING OFFICER: Okay. Anyone else have anything

18 they want to add?

19 Okay. I am going to go ahead and grant all three

20 points.

21 Let me just mention a couple of things. We are

22 going to move the start back of the hearing until

23 November 15th. I understand the concerns that were

24 raised by Mr. Wright on behalf of the Indians as well,

25 as certainly I share those concerns.

1 The statute as I have mentioned several times

2 directs me to expedite this proceeding, but in view of

3 the complexity of the matter and the representations by

4 all parties that some progress is being made, I think

5 that a 30-day extension of the hearing date is

6 justified.

7 I say that at this point, but I want everyone to be

8 very clear that we will go to hearing on November 15th,

9 absent someone demonstrating to me very clearly why the

10 case is not ready to go at that time.

11 I don't care that Thanksgiving is a week away or

12 Christmas is a month away. We can take a day off for

13 both of those holidays if we need to. But the case will

14 go to hearing, and we will complete the hearing in an

15 expeditious fashion.

16 So I think having the holidays come up may be all

17 the more incentive to mediate in good faith and resolve

18 it, so we don't have to litigate through the holiday

19 period.

20 Let me see if we can agree upon a date to reconvene

21 in 30 days or roughly 30 days, to find out where we are

22 again, and at that point I would like to get a status

23 report as to the results of the mediation and figure out

24 exactly where we are. I think everybody needs to be

25 proceeding with the thought in mind that this is, I am

1 not going to continue this case on forever. I am

2 encouraged by the reports that I am getting today, and

3 since nobody is objecting to the continuation of the

4 mediation and an extension of the discovery deadlines I

5 think that it is only warranted to go ahead and take the

6 pressure of the hearing day off by 30 days.

7 I am going to be real reluctant to do that again in

8 the future if you are not able to get this thing

9 resolved once and for all.

10 So, having said that, I think there is a, June 18th

11 is Friday, if I am not mistaken. Is that a good day to

12 report back as to where we are?

13 MR. FITZGERALD: Mr. Hearing Officer, this is Tom

14 Fitzgerald in Miami. Although I would certainly hope

15 that we would have closure well before that, my

16 experience in the current 30-day effort demonstrated

17 that only in the waning moments was a partial meeting of

18 the minds achieved.

19 Since the 30 days would run on presumably midnight,

20 the 21st, that gives an entire weekend there when

21 something productive could be done, and I just think we

22 might be a little shy of solid information on Friday,

23 the 18th. Maybe the others feel differently, but...

24 HEARING OFFICER: The 21st then? Do you want to do

25 it on the 21st? Anyone have an objection to the 21st?

1 MALE VOICE: No.

2 MALE VOICE: No.

3 HEARING OFFICER: All right. Let's do two o'clock

4 on the 21st, same time, do it by phone again. Is that

5 all right?

6 MR. EARL: Yes, it is, Mr. Menton.

7 HEARING OFFICER: All right, Mr. Green, do you want

8 to accept the responsibility for setting up the phone

9 conference again?

10 MR. GREEN: Yes, sir, we will do that.

11 HEARING OFFICER: Okay. Two o'clock on the 21st of

12 June. Is that all we have to take care of today?

13 MR. EARL: That's correct, Mr. Hearing Officer.

14 HEARING OFFICER: Okay. Well, good luck.

15 (WHEREUPON, THE HEARING WAS CONCLUDED AT

16 2:28 P.M.) * * * * *