1 STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
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: MONDAY, JUNE 21, 1993
20 (1:08 P.M. - 1:59 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 CAROLYN RAEPPLE, ESQUIRE
Hopping, Boyd, Green & Sams
6 123 South Calhoun Street
P. O. Box 6526
7 Tallahassee, Florida 32314
(904-222-7500)
8
Representing Petitioners, Florida Sugar Cane
9 League, Inc., United States Sugar Corporation,
and New Hope South, Inc.:
10
RICK J. BURGESS, ESQUIRE
11 MARK KOBELINSKI, ESQUIRE
Peeples, Earl & Blank, P.A.
12 One Biscayne Tower, Suite 3636
Two South Biscayne Boulevard
13 Miami, Florida 33131
(305-358-3000)
14 -and-
WILLIAM L. HYDE, ESQUIRE
15 Peeples, Earl & Blank, P.A.
Suite 350
16 215 South Monroe Street
Tallahassee, Florida 32301
17 (904-681-1900)
18 Representing Petitioners, Florida Fruit and
Vegetable Association, Lewis Pope Farms,
19 W. E. Schlechter & Sons, Inc., and
Hundley Farms, Inc.:
20
TERRY COLE, ESQUIRE
21 KENNETH F. HOFFMAN, ESQUIRE
Oertel, Hoffman, Fernandez & Cole, P.A.
22 Suite C
2700 Blair Stone Road
23 Tallahassee, Florida 32301
(904-877-0099)
24
25
3
1 Representing Respondent, South Florida Water
Management District:
2
PAUL L. NETTLETON, ESQUIRE
3 Popham, Haik, Schnobrick & Kaufman, Ltd.
400 International Place
4 100 Southeast Second Street
Miami, Florida 33131
5 (305-539-7222)
6 -and-
7 IRENE QUINCY, ESQUIRE
Assistant District Counsel
8 South Florida Water Management District
P.O. Box 24680
9 3301 Gun Club Road
West Palm Beach, Florida 33416-4680
10 (407-687-6315)
11 Representing Intervenor, The United States
of America:
12
THOMAS A. WATTS FITZGERALD, ESQUIRE
13 Assistant United States Attorney
Southern District of Florida
14 Suite 627
155 South Miami Avenue
15 Miami, Florida 33130-1693
(305-536-4425)
16
Representing Intervenor, Florida Department of
17 Environmental Regulation:
18 LEE M. KILLINGER, ESQUIRE
-and-
19 SUSAN SCHWARTZ, ESQUIRE
Assistant General Counsel
20 Department of Environmental Regulation
Twin Towers Office Building
21 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
22 (904-488-9730)
23
24
25
4
1 Representing Intervenor, Florida Wildlife
Federation:
2
KEN WRIGHT, ESQUIRE
3 111 South Martin Luther King, Jr., Blvd.
P.O. Box 1329
4 Tallahassee, Florida 32302
(904-681-0031)
5
Representing the Miccosukee Tribe of Indians:
6
DEXTER LEHTINEN, ESQUIRE
7 Spencer and Klein, P.A.
801 Brickell Avenue, Suite 1901
8 Miami, Florida 33131
(305-374-7700)
9
Representing the United States Department of
10 Justice:
11 BRYAN FERRELL, ESQUIRE
United States Department of Justice
12 Environmental & Natural Resources Division
General Litigation Section
13 Room 879, 601 Pennsylvania Avenue (20004)
P.O. Box 663
14 Washington, D.C. 20044
(202-272-4016)
15
* * * * *
16
ALSO PRESENT:
17
VICTORIA MINETT
18 KAREN BRANCH
19 * * * * *
20 INDEX
21 ITEM PAGE
22 HEARING COMMENCED . . . . . . . . . . . . . . . . . . 5
23 HEARING CONCLUDED . . . . . . . . . . . . . . . . . . 39
24 CERTIFICATE OF REPORTER . . . . . . . . . . . . . . .40
25 * * * * *
5
1 PROCEEDINGS
2 (WHEREUPON, THE HEARING COMMENCED AT 1:08 P.M.)
3 HEARING OFFICER: Okay. Good afternoon. Let's start
4 out by introducing Victoria Minett. She's a paralegal part
5 time helping me getting this case organized.
6 You can reach her if you need to on occasions
7 regarding rescheduling matters, etcetera.
8 All right. We have had 60 days of mediation. It
9 looks like the same old faces. I guess I need to get an
10 update on where we are.
11 I think probably the best way to start is by
12 giving petitioners an opportunity to give me their
13 version, and I'll hear from everybody as to exactly where
14 things stand.
15 Let's start out by finding out exactly who's here
16 today, beginning with the petitioners for the Cooperative,
17 Sugar Cane Growers Cooperative.
18 MR. GREEN: Mr. Menton, Bill Green and Carolyn
19 Raepple and Gary Perko for the Cooperative, Roth Farms,
20 and Wedgworth Farms.
21 HEARING OFFICER: And for the Sugar Cane League?
22 MR. BURGESS: Mr. Menton, Rick Burgess for the
23 League, together with Mark Kobelinski and Bill Hyde,
24 of Peeples, Earl & Blank.
25 HEARING OFFICER: For...
6
1 MR. COLE: For Florida Fruit and Vegetables,
2 Terry Cole and Ken Hoffman.
3 HEARING OFFICER: Okay. For the South Florida
4 Water Management District?
5 MR. NETTLETON: Paul Nettleton for the District,
6 and also with us is Irene Quincy.
7 HEARING OFFICER: Okay. For the intervenors?
8 MR. FITZGERALD: Tom Watts Fitzgerald, U.S.
9 Attorney's Office, Southern District of Florida, and with
10 me representing the Department of Justice is Bryan
11 Ferrell.
12 HEARING OFFICER: Okay. For the intervenors,
13 Miccosukee Indians?
14 MR. LEHTINEN: Miccosukee Tribe, Dexter Lehtinen,
15 Your Honor.
16 HEARING OFFICER: Okay. For the conservation
17 groups?
18 MR. WRIGHT: Ken Wright, Sierra Club, and we
19 represent the Tropical Audubon Society, Florida Wildlife
20 Federation, and the Sierra Club.
21 HEARING OFFICER: For DER or DEP, I should say?
22 MR. KILLINGER: Lee Killinger.
23 HEARING OFFICER: All right. Anybody else who
24 needs to state anything before we get started?
25 Okay, let's start off by having petitioners, we'll
7
1 start with the League and the Fruit and Vegetable
2 Growers, tell me where we are and what your version is
3 of what we need to do.
4 MR. GREEN: Well, Mr. Menton, I think the 60 days
5 has been valuable. The issues have become better in
6 focus. I believe the positions of the parties are
7 better understood.
8 We would hope that settlement can still be reached.
9 We're still talking. We just ran out of time.
10 In the meantime we assume since there is no stay
11 we will go back to discovery in this matter.
12 HEARING OFFICER: Okay.
13 MR. GREEN: Okay.
14 HEARING OFFICER: Okay. Mr. Burgess, do you have
15 anything you want to add?
16 MR. BURGESS: Yes, I think that the League, too,
17 Your Honor, is hopeful that the talks can continue and
18 perhaps on a parallel track with the litigation.
19 However with the stay expiring we need to do what
20 we need to do with the approaching hearing date, and
21 that is of course to complete discovery.
22 We all met this morning and twice last week
23 discussing deposition resumptions. We have agreed to
24 have a conference call tomorrow morning to try to
25 complete a schedule through the end of September.
8
1 I'd like to point out on behalf of my clients
2 that when we started discussing last week the resumption
3 of discovery it was our position that discovery should
4 not resume this week, that it should start next week,
5 and that this week be reserved for this hearing date
6 for document exchanges, for deposition scheduling,
7 meetings, taking care of other logistics.
8 The respondents insisted on the discovery going
9 forward. It's during our period of time, so it's our
10 deposition time, and we have under protest agreed to do
11 that.
12 We would like to reserve the fact that we may be
13 back before you before the end of discovery to ask for
14 another week at the beginning of October. We have six
15 weeks now between the end of discovery and the beginning
16 of hearing, because we feel we are prejudiced in not
17 getting, for instance, documents in advance of depositions
18 that are going to commence this week, that we lost
19 today's hearing date in deposition discovery, and up
20 until last week and indeed today we still have attorneys
21 involved in mediation related meetings.
22 So although we have agreed to go forward I just
23 wanted it placed on the record that we may need to be
24 back before you.
25 In addition, Your Honor, as the discovery resumes
9
1 and our status conferences resume you will learn that
2 the District is considering a new or alternate SWIM plan,
3 and that their Board is meeting on June 29th to
4 consider that plan, and that it's our belief that the
5 adoption of some or all of that plan may certainly
6 necessitate a new hearing date and continued and extended
7 discovery.
8 But, nevertheless, while the stay is over, we
9 hope that the mediation efforts can go forward, and that's
10 what we'll work to do.
11 HEARING OFFICER: Okay. Mr. Hoffman or Mr. Cole?
12 MR. COLE: I'd just add one thing. One of the
13 reasons we were here was not on the discovery items
14 but to cover, report to you of exactly where we're
15 at, and from the Fruit and Vegetable standpoint I
16 thought you ought to be aware that the Mediator has
17 made some suggestions on not only the technical aspects
18 which have been covered before but on many of the other
19 aspects, and we have reacted affirmatively to that.
20 So we're hopeful with both the agencies at the
21 state and District level and with the agriculture
22 industry, at least Florida Fruit and Vegetable, that
23 we have come a long ways towards meeting the objectives
24 of finding a way to implement the plan that's been
25 worked out in the previous 30 days.
10
1 So we wanted you to be aware of that.
2 HEARING OFFICER: Okay. Well, I obviously am in the
3 dark as to what transpired during the mediation process,
4 and I know that in some of the earlier hearings we
5 have had there have been references and I know in some
6 of the documents I have seen to the optimal plan the
7 District was considering.
8 We have talked about that a little bit in some
9 of those hearings, but before I hear from those that
10 are supporting the plan what I think I'm gathering from
11 petitioners in the case is that there has been some
12 progress in discussions during the mediation but no
13 agreements, and there are no stipulations as to any
14 aspect of the case at this time.
15 MR. COLE: I think that's right, but I wanted you
16 to be aware of it, because I didn't want you to have
17 the impression during the past 30 days that we were
18 reaching an impasse, because from our standpoint the
19 Mediator put a tremendous amount of work into trying to
20 understand the issues and bring the parties together
21 through obviously the alternative dispute resolution
22 mechanisms, and from Florida Fruit and Vegetable's
23 standpoint we have reacted very affirmatively to his
24 suggestions for possible resolutions to that, and we're
25 awaiting reactions to that.
11
1 But we are in a situation where we think we're
2 not far from a resolution in terms of at least the
3 Mediator's thoughts on this.
4 HEARING OFFICER: Okay. It's a very vague concept,
5 and I'm not sure I'm following it. I guess, and I want
6 to hear from the people supporting the plans, but I
7 guess what I want to try to figure out today if possible
8 is whether the mediation and the results of the
9 mediation are a black-and-white situation where there's
10 a settlement or not a settlement of whether it's going
11 to impact upon the plan as it's currently been adopted
12 by the District and as it's currently set for hearing.
13 It seems from what I'm hearing now that the
14 mediation is an either/or, and I don't know if that's
15 the same way it's being viewed on the other side of the
16 fence.
17 MR. COLE: We did not view it, Your Honor, as an
18 either/or. We have been prepared to talk in either
19 situation, and we have put a large amount of effort
20 over the past 30 days in doing so.
21 We have been wanting to find a way to resolve it
22 so that the restoration process could get on if possible,
23 and our clients are very interested in trying to find a
24 means of seeing that this is done, and with a fair
25 resolution for them.
12
1 I guess what I was indicating to you is we think
2 there has been very substantial progress made in the
3 last 30 days, but we did not view it as an either/or
4 situation.
5 HEARING OFFICER: Okay. Mr. Nettleton?
6 MR. NETTLETON: Paul Nettleton for the District.
7 I would agree that there has been substantial progress,
8 and we are still hopeful as well that something may come
9 of this.
10 I'm not sure, I think your statement earlier was
11 correct that there are no stipulations, and at this
12 point as far as I know none of the petitioners have
13 stipulated to any facts or elements of any issues, so
14 if that's the either/or you're referring to I don't
15 think, I think it is an either/or situation. Either
16 we will settle with certain parties, and it has
17 progressed better with some parties than others, and
18 the multitude of parties has created the obvious
19 difficulties here.
20 But as far as I know we are still willing to talk,
21 and we're still hopeful that something can come of it,
22 but we recognize the need to move on with this, and we
23 are prepared to go back into discovery to meet the
24 current scheduling order for the hearing in November.
25 HEARING OFFICER: Okay. Mr. Fitzgerald?
13
1 MR. FITZGERALD: The United States would essentially
2 agree with the representations of the South Florida
3 Water Management District.
4 The most productive phase of the mediation period
5 was certainly in the first 30 days, in which primarily
6 technical issues were addressed. While that may not be
7 memorialized in any immediate fashion that would
8 benefit forwarding of the issues in this case, still
9 it was a fruitless effort on the part of all parties.
10 HEARING OFFICER: When you say technical issues
11 are you talking about the size of the STAs, or what
12 are you referring to?
13 MR. FITZGERALD: There was a full range of those,
14 Mr. Hearing Office, including the size, acceptance of
15 certain other motions involving collateral problems
16 on the Everglades system that might be addressed in
17 a comprehensive mediated agreement that would transcend
18 the relatively narrow scope of the SWIM plan and address
19 both areas falling outside the physical or geographical
20 boundaries addressed by the SWIM plan as well as issues
21 related to water quantity, time, and distribution,
22 things in the hydroperiod, as well as the strict water
23 quality issues that have been for now the focus of
24 the case thus far.
25 The technical group that conducted those discussions
14
1 is comprised of representatives of all parties and
2 even of some individuals and entities that are not
3 directly engaged in this case, and those were reasonably
4 successful in identifying an alternative way of addressing
5 both the problems that we have before us in the SWIM
6 plan and some of the related issues.
7 It may be at some future date an amendment to the
8 SWIM plan will occur. I don't intend to predict the
9 activities of the appointed Board which has that
10 responsibility, but as the Hearing Officer knows from
11 the submissions in this case and some study of the
12 underlying statute the SWIM plan was always an iterative
13 process, and it's a planning document.
14 So were the interim numbers specified in the plan
15 achieved, the plan itself contemplated future action
16 would be necessary, and I think certainly the parties
17 in defense of the plan are committed to that notion as
18 well.
19 The ultimate number is not the interim number we
20 would see in the plan. Additional work needs to be done.
21 The second 30-day period focused primarily on
22 issues related to the schedules of the physical
23 construction if it's necessary to implement what was
24 known as the consensus of the technical plan, and
25 issues of funding that plan through a mix of public and
15
1 private sources.
2 As may not come as any great surprise, there was
3 very little success in the ultimate analysis as of
4 1:20 this afternoon anyway in resolving what is a very
5 thorny issue for many of the parties.
6 I don't anticipate, I have no reason to anticipate
7 by midnight tonight that will occur, although I did
8 predict some time ago on a telephone conference the
9 most movement would be towards the end.
10 While the United States has always been of the
11 belief it would not be possible to effectively conduct
12 mediation and litigation on parallel but simultaneous
13 tracks, there are a few discussions still scheduled
14 that will run through the balance of this week in any
15 event. However, our commitment to going forward with
16 litigation in support of the plan demands that we
17 return to the formal steps of discovery.
18 I think Mr. Burgess fairly characterized our
19 discussions today in meetings to try to do that. We
20 are ready to proceed forward.
21 There are just two other points I'd like to make.
22 The first is that no party to this proceeding could
23 have failed to contemplate that the conclusion of whatever
24 time, 30, 60, whatever, we would go back into litigation
25 without breaking stride, so I don't think it's now
16
1 appropriate for a party to claim undue prejudice
2 because they have to start litigating again, that they
3 have to start the discovery process again.
4 Additionally to the extent that witnesses have
5 been identified for the first immediate startup period,
6 some care was given to try to offer witnesses whose
7 documents were already provided for the first week and
8 to provide documents for additional witnesses as quickly
9 as possible and not prejudice in any undue way the
10 party petitioners.
11 As it stands the party petitioners will have 39
12 days, if my count is correct, on deposition from now
13 until the termination of the deposition period, the
14 discovery period previously ruled on by yourself.
15 The parties defending and intervening have 33 days.
16 So in any event the petitioners have the edge by a
17 week on the balance of the discovery process.
18 HEARING OFFICER: Okay. Well, I'm not prepared
19 today to resolve those discovery issues. What I'd like
20 to see the two sides get together and see if they can
21 work out is a schedule, and if they can't do it just
22 file the appropriate motions in the future.
23 I'm interested in getting the viewpoint of the
24 District as well as the U. S. Government on the
25 reference that Mr. Burgess made to the Board's
17
1 consideration on June 29th of a possible alternative
2 plan and how that fits into the scheme of things and
3 how it will affect the discovery process and
4 ultimately the hearing process.
5 I understand we cannot know for sure what the
6 District is going to do, but I'm interested in what
7 your thoughts may be as to how it will impact this
8 administrative hearing.
9 MR. NETTLETON: Mr. Hearing Officer, frankly I
10 don't know how it is going to impact it, because just
11 speculating as to what is going to happen itself can
12 go in different directions.
13 As Mr. Fitzgerald stated, the plan is a planning
14 document. It's continuing. There's new science
15 being developed inside and outside this litigation
16 where things are becoming better known of how the
17 system is working and things like that.
18 So the chances of there being changes are there.
19 Whether they're going to happen at the end of June or a
20 year from now or when I can't say, and I can't say
21 what those chances are going to be.
22 I don't know how it will affect this administrative
23 proceeding, because I don't know what the proposals or
24 proposed changes will be, let alone whether the Board
25 will agree or adopt them.
18
1 HEARING OFFICER: We have discussed some of these
2 issues before from a legal standpoint. I think there
3 is an issue with respect to what action the Board can
4 take once the case has been sent to the Division of
5 Administrative Hearings for hearing.
6 I think that limits the activity that can be
7 taken by the District Board, and how that may impact
8 upon this process that we're going through today I
9 think is important.
10 We have discussed that issue before in some of the
11 previous hearings, and I guess, I'm not sure exactly
12 what the District intends to do, but there was some
13 question in my mind as to what they can do legally,
14 and if there is a procedural step that needs to be
15 taken I think you need to give thought to that.
16 MR. NETTLETON: We certainly would give that
17 thought, and that's another question that has come up
18 in our mind, whether anything could be done from a
19 jurisdictional standpoint.
20 I don't know the answer at this time.
21 HEARING OFFICER: Mr. Fitzgerald, was there any
22 additional comment you wanted to make with respect to
23 the June 29th meeting?
24 MR. FITZGERALD: No, Your Honor. I don't think
25 we're in a position to predict what the Board may or may
19
1 not do. It's our understanding they will discuss the
2 work done during the stay and the overall issues on the
3 Everglades restoration project. They may hear from all
4 parties on that. It's been happening for people to
5 speak in more than one forum on that.
6 I think what we need to do is lock down the days
7 over the next several months for hearings like this
8 to address motion practice and other issues and allow
9 the discovery process to go forward.
10 If something happens, as he suggests, that affects
11 the status of the petitioners before you we'll play that
12 out as it come up.
13 HEARING OFFICER: Mr. Lehtinen, did you have
14 anything you wanted to add?
15 MR. LEHTINEN: The tribe would just add, I'm sure
16 that everyone involved in the detailed procedures saw
17 some progress in the mediation. The tribe participated
18 in much of it and always had a scientific representative
19 at the scientific meetings.
20 But from the public's viewpoint and the viewpoint
21 of the victims of the pollution, the tribe, anything
22 that delays these hearings and does not produce a final
23 result is a problem.
24 Delay is the enemy of the Everglades. The tribe
25 opposes everything that would result in delay.
20
1 If the marginal improvements in the plan result
2 in a delay in this hearing, then those are not
3 improvements at all. What's important, as Mr.
4 Fitzgerald stated, is that a hearing date as you have
5 said be adhered to, that discovery go forward, and
6 I believe that the proffering of action on June 29th,
7 which has not yet been taken, and the legal effect of
8 which is not yet known by some of the parties is just a
9 technique for trying to get you and DOAH ready for
10 another delay, which only serves the petitioners'
11 interest and not the public's interest in this regard.
12 The reason the tribe is afraid of mediation is
13 that with all commitments at the beginning of mediation
14 that it will not result in any delays, one of the
15 parties ends up as Mr. Watts Fitzgerald said, saying,
16 "Well, gee, when it terminated we weren't ready for
17 discovery," and that's the fear that the tribe has, that
18 it's too easy to get caught up in the process and
19 overlook the fact that even in the APA these hearings
20 are, you couldn't possibly have met that deadline in
21 the APA, but Marjory Stoneman Douglas and the original
22 APA still contemplates a much quicker process than you
23 could conceivably do here, but it's very important
24 that this hearing go off in '93.
25 We will be urging the Board not to change a thing
21
1 if marginal improvements in the plan produce a whole new
2 round of discovery, and I suspect that if the Board
3 even votes no changes in the plan some of these parties
4 will say, "We anticipated a change so much that no
5 change means we can't meet our hearing date on time."
6 There are such confused arguments to cause delay
7 in the administrative proceeding that the thing the
8 tribe wants to see is let these parties talk about
9 mediation if they want to, but not use it in any way to
10 cause a delay in these hearings.
11 That's the only access the public has. The
12 mediations do not involve the public. They don't
13 involve large numbers of people.
14 They are deals that may inevitably have to be cut
15 in private. We are not complaining, but until they are
16 presented publicly to the Board, hearings are held, and
17 it's voted out as a change it's important to the public
18 and the tribe that the process go forth expeditiously,
19 that they do all discovery, and we have the hearing
20 in 1993.
21 And several of these parties have already said,
22 "There's no way this hearing is going to happen in '93."
23 I mean, they just tell me straight up that it's not
24 going to happen. "Schedule your vacation on the
25 hearing date, because it's not going to happen."
22
1 I said, "You know, maybe you're so familiar with the
2 process you can say that, but I'm just a local lawyer
3 representing an Indian tribe, and we believe in the
4 law, and the law says this hearing ought to go in '93,
5 and there should be no reason for it not to go in '93."
6 HEARING OFFICER: Well, I have reiterated several
7 times at the various stages of this proceeding that
8 I recognize that the Marjory Stoneman Douglas Act
9 directs this proceeding be expedited, and I will do
10 everything in my power to make sure that that happens.
11 The initial hearing date in this matter was
12 scheduled with the agreement of all parties concerned,
13 as was the October date scheduled with agreement of all
14 parties concerned that the time was necessary in order
15 to complete discovery.
16 The last 30-day continuance, moving the hearing
17 date to November, was done over the objections of the
18 conservation groups, but I felt that it was essential
19 to enable the mediation process to go forward.
20 But I recognize the Marjory Stoneman Douglas Act
21 calls for an expedited hearing, and I have advised the
22 parties on several occasions and will do so again today
23 that I recognize everyone is entitled to due process,
24 but due process does not mean to depose every expert
25 in sight or everybody that has ever stepped foot in the
23
1 Everglades.
2 Due process means you have an opportunity to
3 absolutely prepare your case, and I will make a
4 determination as to how the case progresses, whether
5 there is a need for a further continuance.
6 I'm not prepared to make that today. No one has
7 filed the motion. I see no reason this case will not
8 go to hearing in November as scheduled.
9 On the second issue that you raised regarding
10 discovery, there has been a great deal of discovery
11 that has already been undertaken in this case, and I
12 think it would seem to me anyway that there are some
13 underlying scientific issues that are going to be
14 involved, whether we deal with the SWIM plan as it's
15 currently adopted or a subsequent plan that may
16 develop or any amendments thereto.
17 I would certainly think that discovery can and
18 should proceed, especially on those issues, so that we
19 can hopefully reach a consensus that there are no
20 factual disputes or if there are that we can isolate
21 what those are.
22 As we get into the specifics of the individual
23 plan, that's where sole modifications may be necessary,
24 depending on what happens at the District level and
25 whether there is amendment or not, but I think that
24
1 all parties should proceed with trying to complete
2 that discovery which is universal in the sense that it's
3 going to apply to whatever the plan is going to be and
4 get that discovery behind us, and we can deal with others
5 as they come up.
6 Mr. Killinger, did you have anything you wanted
7 to add to the process that we've been discussing so far?
8 MR. KILLINGER: At the risk of just reiterating
9 what the District and the U. S. have already said, we
10 think mediation has been productive so far.
11 The first 30 days produced more tangible results
12 than the last 30 days, but I think the progress is
13 still being made, and I look forward to what happens
14 this week, and I hope something can be worked out.
15 In the interim, however, since the stay terminates
16 this evening, we have to get ready for hearing, and I
17 think that has been the primary motivating factor in our
18 collective sides' insistence on starting discovery right
19 away, not to prejudice the other side.
20 We recognize people's rights have to be preserved,
21 but we need to go ahead and get along with it so we don't
22 wind up at the tail end being threatened with another
23 delay because they couldn't get the discovery done.
24 With regard to a plan we can't address that until
25 something happens and see how it's done and what
25
1 effect it has.
2 HEARING OFFICER: Mr. Wright?
3 MR. WRIGHT: The environmental intervenors agree
4 that with all parties that essentially there has been
5 no concrete agreement, and only time can lead to
6 discovery.
7 HEARING OFFICER: Okay. Do petitioners have anything
8 they want to add in comment?
9 MR. GREEN: Just one briefly, Your Honor, and I
10 hadn't intended to mention it. I think it's common
11 knowledge and I don't believe there's any dispute that
12 one of the reasons the mediation is complex is there
13 has been an unanticipated reduction in phosphorus
14 coming out of the farming areas since 1990 of 33 to 50
15 per cent, so the environment is that, is not seeing
16 what that plan anticipated.
17 I just wanted you to be aware of that to
18 counterbalance against some of the other things this
19 morning.
20 MR. BURGESS: My reason for raising the June 29th
21 Governing Board meeting and consideration of the optimal
22 plan was not for purposes of delay, but it's no secret
23 the petitioners have taken the position that this
24 particular SWIM plan was adopted prematurely from the
25 very beginning, and Your Honor stated you were unaware
26
1 of what had gone on during the last 60 days with
2 regard to the mediated efforts, and one of the outcomes
3 was the meeting that did take place on the 29th.
4 We have also discovered as was discussed this
5 morning that meeting again before Your Honor on July 6th
6 in the afternoon, if that was convenient for you.
7 There is an oral argument scheduled up here, and
8 some of the attorneys will already be here for that, and
9 then in addition the August date we obtained was
10 August 6th in the morning, around 10:00 a.m.
11 Perhaps if you can approve the July 6th date, the
12 parties will be in a position to address the outcome
13 of the Board meeting on the 29th and discuss it at that
14 time.
15 HEARING OFFICER: July 6th in the morning or
16 afternoon?
17 MR. BURGESS: Afternoon.
18 HEARING OFFICER: One o'clock or two o'clock?
19 MR. NETTLETON: Two would probably be better.
20 HEARING OFFICER: Two o'clock. Okay. Let me
21 check my calendar. We'll take a break, and I'll check
22 my calendar. I think that's okay.
23 And then August 6th was the other one, in the
24 morning?
25 MR. BURGESS: In the morning.
27
1 HEARING OFFICER: Again we have discussed before
2 the legal issues as to what the Board can do once the
3 case is within the context of an administrative
4 proceeding, and I assume that's something that the
5 Board will receive good and adequate counsel on.
6 We can determine that in the future. So the only
7 thing we need to do today is schedule the next
8 conference?
9 MR. NETTLETON: That's probably the bottom line.
10 Mr. Hearing Officer, before we go on, concerning the June
11 29th Board hearing, if Irene Quincy could come up, she
12 could give you a little more background on what's going
13 to be coming up at that.
14 MR COLE: in terms of scheduling also isn't
15 there a Board meeting scheduled for the 6th also where
16 some of this could come up?
17 MS. QUINCY: That's correct, and I'll let you know
18 where the District Governing Board is.
19 As you are aware, our Governing Board being a
20 collegial client under the Sunshine Law cannot meet to
21 discuss any of what's going on without scheduling a
22 business meeting.
23 The 29th was originally scheduled as an opportunity
24 to discuss with our Board where we were with the
25 mediation in the optimistic point of view that we may
28
1 have a settlement or a conceptual settlement to bring
2 to the Governing Board.
3 We then decided that it would probably be appropriate
4 to have a status briefing with our Governing Board,
5 whether we reach it or do not reach settlement.
6 There was some discussion at our prior Governing
7 Board meeting as to what the agenda would look like
8 at that meeting. Some of the Board members want to have
9 the opportunity to discuss some of the things that
10 have been discussed in the mediation that they have not
11 used the last two Governing Board meetings to talk
12 about because of the sensitivity of the mediation issues.
13 I think it is a quite fair statement to say we do
14 not have a set agenda for the 29th. We need to see
15 where we are as the mediation progresses. So far as
16 what is or is not going to come out of the Governing
17 Board meeting, it really is premature to tell.
18 I can appreciate the concern of Your Honor in
19 trying to see how this fits together, but out Governing
20 Board is struggling with trying to come to a collegial
21 decision in the midst of a mediation and a hearing.
22 The July 6th Governing Board is the time that our
23 Board is scheduled to discuss its budget. Under Florida
24 law we must adopt a preliminary budget at that meeting.
25 We scheduled a separate meeting to discuss the
29
1 budget. Inasmuch as the Everglades is a key component
2 in our budgeting this year we anticipate that there
3 may well be Everglades and budget related Everglades
4 issues presented at the July 6th meeting.
5 That's where we are with our Board dates.
6 Obviously if we do get questions or directions from the
7 Board as to whether they wish to consider a course, we
8 need to consider those.
9 You have indicated other legal issues that we
10 will need to address, and I'm sure there are many others.
11 We will do our utmost to keep you informed as we go down
12 that path.
13 HEARING OFFICER: Okay. Thank you, Ms. Quincy.
14 Okay. Why don't we take a couple of minutes break, and let
15 me step out and see if the 6th of July and August are
16 okay, and we can come back and discuss what we need to
17 do in the meantime.
18 I assume that the parties will be meeting and
19 working out discovery, a continuation of the discovery
20 schedule, the prior schedule that we had, I would
21 think, and I think the same concept of alternate
22 weeks and some of those, and I don't know if you
23 discussed that or where you stand on that.
24 But I'd like to get an idea of that, and then also
25 see if there are any other issues we need to discuss.
30
1 MR. FITZGERALD: I notice an unhappy tendency
2 we are all pretty familiar with where the lawyers in the
3 case tend to take on the view that they are the
4 technical experts, and our technical experts think
5 they're the lawyers.
6 I suppose that's fair enough, but it seems to me we
7 should try to restrict our hearings before you to
8 matters that are germane to the procedure, timing, and
9 process, and that the attorneys should not be inserting
10 their views on what the science is until there is a
11 hearing.
12 HEARING OFFICER: I'm going to listen to the
13 experts when the hearing comes, and I'll make my
14 determination based upon the evidence that's presented
15 at the final hearing.
16 And I understand that all parties that are
17 involved in the case get involved in representation,
18 representing their clients, and I think there will be
19 occasions when they may go into the realm of expert
20 testimony, but I understand.
21 MR. FITZGERALD: We would just object to any
22 argument from counsel that a series of meetings or
23 samplings in any way affect the obligation of DOAH
24 under the relevant statutes to delay or feel a lack of
25 impetus to move forward because of something that may
31
1 be not applicable.
2 HEARING OFFICER: Well, I think we're just wasting
3 time arguing. I think everybody has an opportunity to
4 make your arguments, but it's going to depend,
5 ultimate resolution is going to depend on what the
6 expert witnesses have to say.
7 Let's take about a five-minute break, so I can
8 check my schedule.
9 (WHEREUPON, THE HEARING WAS RECESSED FROM 1:40 P.M.
10 TO 1:46 P.M., AT WHICH TIME MS. SCHWARTZ AND MR. LEHTINEN
11 WERE ABSENT FROM THE HEARING ROOM.)
12 HEARING OFFICER: Okay. July 6th and August 6th
13 are fine in my calendar. Two o'clock on July 6th, and
14 10 o'clock on August 6th.
15 Let me just mention a couple of other things and
16 see if I can clarify a few things.
17 Back in the beginning of this case there were
18 motions to dismiss and motions to strike that were
19 filed on behalf of the District.
20 The ruling on those motions was held back pending
21 the discovery process and where the case proceeded.
22 (WHEREUPON, MR. LEHTINEN ENTERED THE HEARING
23 ROOM.)
24 One of the things I will want to see as this
25 case begins progressing is an attempt to try to narrow
32
1 those issues that are actually in dispute, by all
2 parties, and in that regard I would expect that we
3 would need to schedule the motion to dismiss and the
4 motion to strike probably some time in August, and
5 maybe the August 6th meeting isn't the time to do it,
6 but I think the petitioners should go back and look at
7 their petitions and figure out what exactly is in
8 dispute and what isn't, and perhaps replead, file a
9 new petition, and we'll have a response from those
10 supporting the plan and see if we can narrow the scope
11 of the issues a little bit in that regard.
12 Obviously we're going to try to reach a prehearing
13 stipulation as we get closer to the hearing date, and
14 this would be preliminary to that, and I would hope that
15 it will enable the parties to proceed more efficiently
16 in the discovery process.
17 I do not know what the status of the testing has
18 been during the mediation process, whether that has
19 been ongoing or not.
20 MR. FITZGERALD: Mr. Hearing Officer, we have not
21 suspended access to the Refuge or to Everglades
22 National Park during the pendency of the 60-day stay.
23 That was agreed. In fact, beginning tomorrow the
24 extensive field work in Everglades National Park
25 actually commences.
33
1 HEARING OFFICER: How about the access to the
2 EAA?
3 MR. FITZGERALD: Mr. Hoffman was kind enough to
4 give a guided tour of the wildlife out there, but that
5 was done, and in fact it came up this morning to talk
6 about distributing the data as soon as possible from
7 that.
8 HEARING OFFICER: Okay, because there was still
9 the pending issue in the protective order which I put on
10 hold pending the mediation process. I assume that
11 now needs to be resolved. Is that correct?
12 MR. FITZGERALD: (Nodding head.)
13 HEARING OFFICER: So the testing has already been
14 done, and the results have already been exchanged?
15 MR. FITZGERALD: No, sir. They have not been
16 exchanged.
17 HEARING OFFICER: All right, but you have completed
18 your testing in the EAA?
19 MR. FITZGERALD: The field testing is complete.
20 MR. BURGESS: If I could address the entry and
21 access. One matter that we're going to be filing shortly
22 and probably tomorrow is a motion to extend that
23 period of time for the petitioners' entry and access
24 for limited purpose of continuing the water quality
25 sampling in the refuge.
34
1 We have completed the extensive transect sampling
2 in the Refuge. As Tom mentioned, we're starting tomorrow
3 and will run through the end of the month, our sampling
4 in the park.
5 However, for the limited purpose of carrying out
6 additional one or two days a month of water quality
7 samples in order to get as close as we can to a
8 one-year water quality record we're going to ask the
9 Court to consider it, and we'd like that heard on
10 July 6th, if possible, because that sampling has been
11 carried out since December in the middle of each
12 month, and in order for continuity to be maintained
13 we would like to go back out and hold it in the middle
14 of July, on the 6th.
15 HEARING OFFICER: All right. Well, we'll hear
16 all pending motions on the 6th. Those are the types of
17 motions I would hope that parties can discuss and
18 attempt to come to resolution on. If not, we'll
19 resolve them that way.
20 One other issue I wanted to take up with respect
21 to discovery. As I indicated earlier, it would seem to
22 me that there are some basic scientific facts that
23 are subject now to discovery, irrespective of what
24 shape the ultimate plan is going to be, and I would
25 hope that the parties can be sure that discovery that
35
1 fits within that context is prioritized and hopefully
2 completed as expeditiously as possible.
3 All right. Are there any other matters that we
4 need to take up today and discuss?
5 MR. LEHTINEN: Could I just mention one thing on
6 behalf of the tribe?
7 As certain of the parties attempt to negotiate a
8 mediated solution, and assuming it's done in good faith,
9 the tribe's concern is that if such a solution is
10 reached but it is understood by certain of the parties
11 that the scope of their agency is reaching the
12 tentative agreement does not extend to final agreement,
13 the best example being the Water Management District,
14 of course, negotiates in good faith, as has been
15 pointed out, but they have a public meetings
16 requirement, and it has to be presented to the Board,
17 the Board could change it.
18 Everyone could know that in good faith, and yet
19 initial reports of an agreement could result in a month or
20 two later after review by environmentalists or the
21 Board itself or any number of other factors it not
22 producing a final agreement.
23 So the tribe would urge that this proceeding go
24 forth even if there are reports of a tentative agreement,
25 because that tentative agreement in good faith does
36
1 not necessarily, might not necessarily result in
2 the actual termination of these proceedings, and if
3 it did result in a good faith, tentative agreement
4 that was rejected by the Board or was rejected by
5 others, you know, as it came under public scrutiny and
6 resulted in a delay in these proceedings, it would have
7 ended up not even being neutral but would have ended up
8 being negative.
9 So the tribe encourages the discussions and
10 would not even be upset about a tentative agreement,
11 but it would be if that agreement delayed these proceedings,
12 and that agreement itself didn't go through, and it
13 cannot be an agreement until it's adopted by the
14 Board or meets all the other standards of the Board's
15 public policy.
16 HEARING OFFICER: Well, we've discussed some of
17 these issues before as we got to the first request to
18 stay the discovery process, and as I indicated at that
19 time we have a firm hearing date, and I intend to stay
20 with that firm hearing date, and that hearing date will
21 not be moved until somebody files a motion and brings
22 it up and we have a full hearing and everybody will
23 have an opportunity to state their objections at that
24 time.
25 MR. LEHTINEN: Really that's what we had in mind,
37
1 Your Honor, and particularly because the parties would
2 in good faith notify you. They should notify you on
3 tentative agreements and so forth.
4 But until someone actually withdrew a petition or
5 did something like that we would encourage you not to
6 delay the proceedings.
7 HEARING OFFICER: I may be stepping into a matter
8 that I don't want to get into right now, but obviously
9 the discussions about a possible settlement and the
10 various issues that are out there raises some concern in
11 my mind as to exactly what the role is of the Division
12 of Administrative Hearings and how it fits into all
13 this process.
14 One of the things I was thinking about this morning
15 as I was getting ready for this hearing is I think it's
16 important that all parties keep in mind exactly what
17 this forum is. This is not a forum to resolve
18 policy matters. It's a forum to resolve factual
19 disputes. That's the way I think administrative
20 hearings in this matter are going to be run, and I
21 think everybody has to proceed accordingly.
22 There are obviously areas where policies overlap
23 with facts, and sometimes it's hard to keep them
24 separate, but the essential role of the Division of
25 Administrative Hearings is to be a fact finding body, to
38
1 assist in the formulation of final agency action, and
2 in that regard I intend to focus this proceeding to
3 the extent possible solely on disputed issues of fact,
4 and I would hope and expect that all parties would
5 keep that in mind.
6 MR. FITZGERALD: Mr. Hearing Officer, there was a
7 session strictly limited to counsel to discuss some
8 of the parameters of any settlement, sort of uniform
9 on common issues that would arise, and the interface
10 between this action and any resolution, whether that
11 resolution be achieved amongst all the parties, which
12 is always a potential, or a more limited one that would
13 involve just certain of the parties reaching
14 resolution, how that would affect these proceedings,
15 and it has been discussed by counsel.
16 We are sensitive to the existence of the problems.
17 I don't know if that will help you sleep better, but
18 we know they're there.
19 HEARING OFFICER: Okay, and certainly those are
20 premature at this point, and we'll just have to see
21 if they come in, and everybody will have an opportunity
22 to state their position on it before we make a final
23 resolution.
24 It certainly is not unheard of in a complicated
25 administrative proceeding, and I don't know there has
39
1 ever been one as complicated as this one, but it is not
2 unheard of for some of the parties to reach
3 settlement and some of the parties not to reach
4 settlement and to go to hearing with those that have
5 not reached settlement.
6 But if that's where we get to, then that's where
7 we get to, and we'll just have to see where the cards
8 fall on that issue in the future.
9 Okay. Any other matters that we need to discuss
10 today? Okay. Thank you.
11 (WHEREUPON, THE HEARING WAS CONCLUDED AT 1:59 P.M.)
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