1 DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA

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. )

) _______________________________________

HEARING BEFORE: HONORABLE J. STEPHEN MENTON

18 HEARING OFFICER

DATE: MONDAY, OCTOBER 4, 1993

20 (2:00 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

1 APPEARANCES:

2 Representing Petitioners, Sugar Cane Growers

Cooperative of Florida, Roth Farms, Inc.,

3 and Wedgworth Farms, Inc.: (VIA TELEPHONE)

4 WILLIAM H. GREEN, ESQUIRE

GARY PERKO, ESQUIRE

5 CAROLYN RAEPPLE, ESQUIRE

JEFFREY J. WARD, 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.: (VIA TELEPHONE)

11 RICK J. BURGESS, ESQUIRE

Peeples, Earl & Blank, P.A.

12 One Biscayne Tower, Suite 3636

Two South Biscayne Boulevard

13 Miami, Florida 33131

(305-358-3000)

-and-

WILLIAM L. HYDE, ESQUIRE

16 ROBERT BLANK, ESQUIRE

Peeples, Earl & Blank, P.A.

17 Suite 350

215 South Monroe Street

18 Tallahassee, Florida 32301

(904-681-1900)

Representing Petitioners, Florida Fruit and

20 Vegetable Association, Lewis Pope Farms,

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

21 Hundley Farms, Inc.: (VIA TELEPHONE)

22 SEGUNDO FERNANDEZ, ESQUIRE

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

23 Suite C

2700 Blair Stone Road

24 Tallahassee, Florida 32301

(904-877-0099)

1 APPEARANCES, CONTINUED:

2 Representing Intervenor, The United States

of America: (VIA TELEPHONE)

SUZAN HILL PONZOLI, ESQUIRE

4 THOMAS A. WATTS FITZGERALD, ESQUIRE

Assistant United States Attorney

5 Southern District of Florida

Suite 627

6 155 South Miami Avenue

Miami, Florida 33130-1693

7 (305-536-4425)

8 -and-

9 KENNETH A. SAXE, ESQUIRE

United States Department of Justice

10 Environmental and Natural Resources Division

General Litigation Section

11 Room 879, 601 Pennsylvania Avenue (20004)

P.O. Box 663

12 Washington, D.C. 20044

(202-272-4016)

Representing Intervenor, Florida Department of

14 Environmental Regulation: (VIA TELEPHONE)

15 LEE M. KILLINGER, 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 Respondent, South Florida Water

Management District: (VIA TELEPHONE)

PAUL L. NETTLETON, ESQUIRE

21 Popham, Haik, Schnobrick & Kaufman, Ltd.

400 International Place

22 100 Southeast Second Street

Miami, Florida 33131

23 (305-539-7222)

1 APPEARANCES, CONTINUED:

2 Representing Respondent, South Florida Water

Management District, continued:

BARBARA MARKHAM, ESQUIRE

4 JOHN LAWRENCE, ESQUIRE

Assistant General Counsel

5 South Florida Water Management District

P. O. Box 24680

6 3301 Gun Club Road

West Palm Beach, Florida 33416-4680

Representing Intervenor, Miccosukee Tribe of

8 Indians:

9 DEXTER W. LEHTINEN, ESQUIRE

GENE DUNCAN, ESQUIRE

10 Spencer and Klein, P.A.

801 Brickell Avenue, Suite 1901

11 Miami, Florida 33131

(305-374-7700)

Representing Intervenor, Florida Wildlife

13 Federation:

14 DAVID G. GUEST, ESQUIRE

LAURA ERICKSON

15 111 South Martin Luther King, Jr., Blvd.

P.O. Box 1329

16 Tallahassee, Florida 32302

(904-681-0031)

ALSO PRESENT:

VICTORIA MINNETTA

* * * * *

1 INDEX

2 ITEM PAGE

3 HEARING COMMENCED . . . . . . . . . . . . . . . . . . . . . 6

4 HEARING CONCLUDED . . . . . . . . . . . . . . . . . . . . . . 27

5 CERTIFICATE OR REPORTER . . . . . . . . . . . . . . . . . 28

6 * * * * *

1 PROCEEDINGS

2 HEARING OFFICER: Good afternoon. This is Steve

3 Menton. Why don't we go through the list one more

4 time of who exactly is on the phone, so the court

5 reporter can make sure she gets it all down. I do have

6 a court reporter in the hearing room with me, as well

7 as Vicki Minnetta, a paralegal that's working with us.

8 Let's start off with petitioners, Mr. Green, for

9 the League, I mean for the Coop. Is there anybody

10 else for the Coop?

11 MR. GREEN: Carolyn Raepple and Gary Perko.

12 HEARING OFFICER: How about for the League?

13 Mr. Blank, and I'm not sure who else we have for the...

14 MR. BLANK: I think we have Mr. Burgess and

15 Mr. Hyde also.

16 HEARING OFFICER: Mr. Hyde. Okay. For the Fruit

17 and Vegetable?

18 MR. FERNANDEZ: This is Segundo Fernandez,

19 appearing for Terry Cole.

20 HEARING OFFICER: Okay, now for the Water

21 Management District I have Paul Nettleton.

22 MR. NETTLETON: Yes, sir.

23 HEARING OFFICER: Okay. Anybody else for the

24 District?

25 MS. MARKHAM: Yes, Barbara Markham.

1 HEARING OFFICER: Barbara Markham. Okay.

2 MS. MARKHAM: And Joan Lawrence.

3 HEARING OFFICER: Who else did you say?

4 MS. MARKHAM: Joan Lawrence.

5 HEARING OFFICER: For the U.S. Government?

6 MR. FITZGERALD: Tom Watts Fitzgerald, Suzan

7 Ponzoli, and Keith Saxe.

8 HEARING OFFICER: Okay. And for the Department of

9 Environmental Protection?

10 MR. KILLINGER: This is Lee Killinger, and I

11 have respondents from the Water Management District

12 here in my office.

13 HEARING OFFICER: Okay. And for the, who are we

14 forgetting, the environmental groups?

15 MS. ERICKSON: This is Laura Erickson, and

16 David Guest has come back.

17 HEARING OFFICER: Okay. And for the Miccosukee

18 Indians?

19 MR. LEHTINEN: Dexter Lehtinen, and Gene Duncan

20 is with me.

21 HEARING OFFICER: Okay, is there anybody I missed?

22 Has everybody stated an appearance

23 MR. WARD: I'm Jeff Ward. I'm counsel with the

24 Coop.

25 HEARING OFFICER: With the Coop? Okay.

1 MR. FITZGERALD: Mr. Hearing Officer, although they

2 won't be speaking let me identify them. I am also

3 accompanied by Mike Reed...

4 HEARING OFFICER: I'm sorry. Speak up a little

5 bit.

6 MR. FITZGERALD: Mike Reed, Burt...

7 HEARING OFFICER: Burt Neal?

8 MR. FITZGERALD: ...no, Neally, and Dr. Mark

9 Maffei, Mike Soukup...

10 HEARING OFFICER: We're losing the court reporter

11 here. She's making funny faces at me. Mark Maffei, did

12 you say? Dr. Maffei?

13 MR. FITZGERALD: M-a-f-f-e-i, Mike Soukup,

14 S-o-u-k-u-p, and William Walker.

15 COURT REPORTER: Thank you.

16 HEARING OFFICER: Okay. I would ask everybody to

17 identify themselves for the record before they speak

18 up.

19 I have not received any motions or any status

20 reports in writing, so I'm sort of at a loss as to

21 where we are. Who wants to take a stab and tell me

22 exactly what we're standing at this point?

23 Mr. Fitzgerald?

24 MR. FITZGERALD: Yes, Mr. Menton?

25 HEARING OFFICER: I didn't hear you volunteer.

1 MR. FITZGERALD: I spent 20 od years in the

2 service. I don't volunteer unless I have to.

3 Being neither the petitioner nor the prior

4 respondent I don't feel it's appropriate for us to

5 take the lead on that.

6 HEARING OFFICER: All right. Well, this doesn't

7 sound very optimistic. Why don't we start with the

8 petitioners?

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

10 Nettleton. I'll be happy to take the lead. I did the

11 last time.

12 HEARING OFFICER: Okay. Go ahead.

13 MR. NETTLETON: Since our last conference call

14 I can tell you that a number of things have occurred.

15 The District initially released its draft of a

16 proposed settlement agreement. The League has also

17 released a draft of at least provisions it would like

18 included in any settlement agreement. The Cooperative

19 has released a draft of a side-through of the U.S.

20 earlier draft of what they would see as necessary for

21 them to join the settlement agreement.

22 The District's Office of Counsel has presented

23 some of the more significant issues for the

24 Governing Board to obtain guidance from the Governing

25 Board on where they want to go so far as the settlement

1 agreement is concerned.

2 Since all this has been occurring there has also

3 been constant and ongoing meetings between principals

4 and their counsel trying to resolve some of the major

5 issues of contention, such as funding, certainty of

6 performance, and other major issues.

7 I don't think unless you want that it's necessary

8 to go through all the various issues, but the meetings

9 and discussions and participation has been had by

10 different parties, including all of the litigants here,

11 the United States, Department of Environmental

12 Protection, and the League and its associated interests,

13 the Cooperative, the Fruit and Vegetable group,

14 environmental groups, the tribes.

15 In addition to the litigants in this particular

16 case we have been having ongoing discussions as well

17 with other interested parties, such as Western Basin

18 representatives, 298 District, various municipalities,

19 the Lake Worth Drainage District, and various

20 environmental groups who are not part of the litigation,

21 per se.

22 As you might expect, we have been principally

23 focusing on trying to resolve those issues between

24 parties to the Statement of Principles to reach that

25 focusing point in the settlement agreement and then

1 also with some of the other litigants in our present

2 litigation.

3 In the process of doing that we are also

4 attempting to allay the concerns that have been

5 addressed by the numerous outsiders to the litigation,

6 putting off any potential disputes in the future, such

7 as with the Western Basin, Seminole Tribe, 298

8 groups, and so forth.

9 This has taken a couple of different forums. One

10 is that we will be attempting to draft the provisions

11 of the agreement, one, to resolve the concerns of some

12 of the nonparties to the litigation and thereby

13 satisfying them, and with regard to other groups such

14 as the Seminoles and the Western Basins it may actually

15 involve entering into separate agreements outside of

16 the settlement agreement that would resolve this

17 particular litigation.

18 We feel that there has been significant progress

19 in the last 30 days. For your information, Mr. Hearing

20 Officer, there is a series of Governing Board meetings

21 by the District next week, during which various issues

22 will be raised, and we certainly expect at this point

23 or hopefully expect to present to the Governing Board

24 by the end of next week a potential settlement package

25 at that time.

1 Now undoubtedly some of the details may be

2 unresolved, but we think that we're getting to that

3 stage now where we are very close, and we certainly do

4 not think an impasse has been reached. At least with

5 all of the parties admittedly there are some parties

6 who may not come on board, but we're still hopeful that

7 we'll be able to draft it and provide necessary

8 provisions that will bring everyone on board that is a

9 party to this litigation, but in any event we would

10 certainly expect to reach accord with at least some

11 of the parties.

12 HEARING OFFICER: Okay. What are you asking me

13 to do with respect to this administrative case?

14 MR. NETTLETON: I would ask, Mr. Hearing Officer,

15 that you continue the stay for the next period of time

16 to allow us to try to finalize where we're at right

17 now and do a settlement agreement.

18 HEARING OFFICER: What is the next period of time?

19 I mean, I think technically your 90 days runs out

20 the middle of this month.

21 MR. NETTLETON: I believe you're correct,

22 Mr. Hearing Officer. I think we originally asked through

23 the 18th. I would request for that period of time.

24 I know there were discussions at the last hearing

25 about an additional 30 days

1 I would request at least at this point through

2 October 18th, which is what we originally requested.

3 HEARING OFFICER: Okay. Do you think by the

4 18th you will have presented your settlement package to

5 the Board?

6 MR. NETTLETON: That's our expectation, yes, sir.

7 HEARING OFFICER: Okay. Anybody else have anything

8 to add to Mr. Nettleton's summary?

9 MR. GREEN: Yes, sir. Bill Green for the

10 Cooperative.

11 Mr. Menton, as you know all along we have been

12 very pessimistic that there would be a settlement that

13 included the Cooperative, although we have done a lot

14 of wishful thinking.

15 I would like to be sure the record reflects we

16 don't believe there has been any serious effort to

17 mediate the concerns that have been raised by the

18 Cooperative.

19 We have met maybe once or twice. Our position has

20 been made clear on numerous occasions.

21 But as I mentioned at the last conference call,

22 no progress towards resolution on those issues.

23 The reason I raised this is because we are

24 feeling in light of all that the mediation package that

25 you're hearing about will not include us and has not been

1 included in most of the meetings and the substantive

2 meetings that have gone on between the parties in the

3 Statement of Principles.

4 Now if there's a mediation package presented to

5 the Board we are assuming because of that that we

6 will not have agreed to it, and it puts us in the

7 unenviable position of not really knowing what the

8 District intends to do with the case before yourself,

9 Mr. Menton.

10 I know you have raised this issue several times

11 yourself, and we are still, out of fairness to those

12 who are not likely to join in because of the facts I

13 just mentioned I think that the District ought to come

14 forward in the immediate future with their position in

15 these proceedings with regard to how they should go

16 forward.

17 I recognize that may be difficult, but we are

18 running out of time, and we're assuming we will be

19 back in 14 days, and I just wanted to raise that and

20 ask you if you would entertain a suggestion that the

21 District be required to come forward with their

22 procedural synopsis of how they will deal with it,

23 assuming the Board does what they think they need to

24 do next week.

25 HEARING OFFICER: Mr. Nettleton, I think Mr. Green,

1 Mr. Green raises a good point.

2 We have talked as to what would be the end result

3 when a settlement agreement is reached between some

4 of the parties, if some of the other parties don't go

5 along with it.

6 We have sort of had that issue hanging out there.

7 It hasn't really been specifically addressed.

8 I realize you've been distracted on other matters,

9 but just for the purposes of this litigation I'd like

10 to get a little bit of an idea exactly what is

11 anticipated. I would assume at this point the District

12 is recognizing that it's either going to get a settlement

13 agreement with everybody or it's not.

14 And if it's not, it sounds like Mr. Green is

15 saying they are not going to be on board.

16 What do you expect is going to happen from there?

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

18 Nettleton. It's a difficult question to answer

19 until we know exactly what does happen.

20 If we assume that a settlement agreement is

21 reached with certain of the parties but not with

22 certain parties such as the Coop, it would depend first

23 of all on the nature of the settlement agreement, which

24 at this point I assume or I believe would call for some

25 type of revision to the current SWIM plan.

1 If that is the nature of the final settlement

2 agreement, this litigation with the League or with

3 other parties in addition to the League, at that point

4 we would need to address procedurally how to handle

5 the case as it's currently pending before DOAH.

6 That would involve either I suppose a remand or a

7 continuation of the litigation on those issues which

8 aren't going to change with regard to the revision of

9 the SWIM plan.

10 I'm just not really sure the best approach to take

11 for that.

12 HEARING OFFICER: Yes.

13 MR. GUEST: Mr. Hearing Officer, this is David

14 Guest. Let me offer my thoughts on this.

15 I think that if the District enters into

16 a settlement agreement that it will be a clear signal

17 that the final agency action that was the subject of

18 this case is in there no more, and it will be

19 withdrawn.

20 Until there is agency action that would create a

21 point of entry for the cooperative and their allies,

22 if any, then I don't think we would have a new case,

23 and I think that when we have new final agency action

24 or a new point of entry that it will cause a new

25 case to emerge, a new petition with similar effects, and

1 the way to do it I think is to have an understanding,

2 maybe a formalized understanding, that all of the

3 discovery that is heretofore taking place and the

4 arguments that have hereto taken place would be

5 res judicata, if appropriate, or administrative

6 estoppel, if appropriate, in the next case, but then we

7 would not otherwise have a connection between this

8 case and any future litigation.

9 HEARING OFFICER: Well, I'm not quite sure I

10 agree with you. I understand what you're saying, and

11 that may be the way we end up going, but I think we're

12 probably getting ahead of ourselves a little bit.

13 I think, I don't want to force Mr. Nettleton's

14 hand at this point. I think the District needs

15 to find out where their final position will be, and

16 I guess we can address those issues at that point.

17 I'm trying to get a sense of whether there is any

18 consensus that's been reached amongst the parties as

19 to what will happen for those that don't join in, and

20 it sounds to me like there is no consensus at this

21 point.

22 MR. NETTLETON: I think that's correct. I think

23 the focus has been more on trying to reach agreement

24 with the various parties as opposed to what happened with

25 the actual litigation.

1 HEARING OFFICER: And I think that's appropriate,

2 and I don't mean to be trying to force your hand on

3 it, because I think they are very difficult issues,

4 the point of view that Mr. Guest articulated being

5 one possible scenario, but I think there is probably

6 an equally valid one on the other side.

7 From the little bit that I have looked into it

8 I'm not sure that there is a clearcut answer on that,

9 because I think we're in unchartered territory, but

10 I'm a little bit concerned about how we're going to

11 handle this once the settlement agreement is done,

12 and then it goes back to the legislative mandate that

13 I expedite the administrative challenges to the SWIM

14 plan, and I guess I'm interjecting this a little

15 prematurely, and I think probably the best course of

16 action is to let the District proceed with the current

17 course it's on through the end of the period we set

18 aside, and I know, Mr. Lehtinen, I haven't given you a

19 chance to have your say, and the last time, the last

20 two times we've talked you have opposed any additional

21 stays in this proceeding.

22 So I will give you the opportunity to voice your

23 concerns, but as I indicated last time my inclination

24 would be to let the District go ahead with the 90 days

25 we originally scheduled, see where we are from there,

1 and maybe we'll address those procedural issues Mr.

2 Guest was talking about.

3 Mr. Lehtinen, what is the position of the Miccosukee

4 Indians?

5 MR. LEHTINEN: Well, we certainly understand your

6 continuation of the 90 days up until October 18th.

7 We do oppose it, but I understand the rationale there.

8 Our statement is very similar to Mr. Green's

9 from a little bit different position on the merits,

10 but like Mr. Green we have not seen any substantial,

11 real effort to resolve the objections we have.

12 We believe that this plan that is being

13 negotiated will in fact only achieve phase one. It

14 will not go to a phase two restoration level, that

15 it will have a cap on monetary contributions, and that

16 it will besides the cap on monetary contributions it

17 will use escape clauses or default clauses or whatever

18 they're called, collapse clauses, that purport in the

19 four corners of the document to accomplish certain

20 things but say in a collapse clause the parties can

21 walk away from the agreement really not firmly

22 resolving the matters in any event.

23 Also with respect to the meetings, the meetings

24 that the mediator controls have been not held. Last

25 week they were not held. The facts I have in front of

1 me now say the Mediator sees no reason to have any

2 additional meetings or schedule any, so there have not

3 been any meetings or any record nature for a couple of

4 weeks.

5 There are, of course, a lot of meetings, there's

6 one happening in Washington and so forth right now,

7 among people who preliminarily agree that if they go

8 to the meetings they will agree, so the meetings and

9 progress that's referred to is really off-budget

10 progress among people who are in subagreements on

11 various issues.

12 There is no real public participation at all in

13 this process. That's why parties who are not in on the

14 inside deal just have to say to you frankly they need

15 to wait until it's presented.

16 I do think the agreement that's reached, if any,

17 will be subject to a lot of legal challenge in terms

18 of its authority.

19 In terms of the withdrawing of the SWIM plan and

20 starting over again, it's intriguing to me that an

21 agreement that's designed to expedite this matter is

22 really premised on starting over again, giving a new

23 point of entry at which everyone displeased challenges

24 it then. That kind of mathematics is clear to a

25 second grader, although it's not clear to the people

1 involved in this process. That mathematics is

2 subtraction, not addition or expediting anything.

3 So in any event that's where we stand. We don't

4 see a real resolution of the issues on the merits.

5 I know that the Miccosukee Tribe at the present

6 time if the phase tow conditions and the collapse clause

7 are in there will not be a signatory to the agreement,

8 and I don't know about the so-called more important

9 things like the Coop and so forth.

10 I appreciate the opportunity to express those

11 views.

12 HEARING OFFICER: All right. Is there anybody

13 else that wanted to add anything? Okay.

14 I'm going to go ahead and keep this case in

15 abeyance to the end of the 90-day period we originally

16 had talked about.

17 In view of the comments that have been made it

18 seems unlikely that everybody is going to be on board,

19 and I'm optimistic maybe something will develop and

20 everybody will be, but if it gets to the point where

21 everybody is not on board I think what my position

22 is going to be is that we're going to have to move

23 this case along as quickly as possible to get it in a

24 posture to resolve the issues by those who are not in

25 agreement.

1 I'm not quite sure how we're going to do that.

2 I don't know, I don't mean to presume what the law

3 is or what it should be. Mr. Guest may be right about

4 the way we have to handle it. I'm not quite sure on

5 that.

6 But I would want to have those issues

7 addressed and resolved very promptly after the end of

8 the 90-day period, so that we know exactly where

9 this case is going, and we can get it on track to

10 resolve it one way or the other.

11 So I'll give you the rest of the 90-day period,

12 I'm not sure, was it the 18th of October?

13 MR. NETTLETON: I think it was.

14 HEARING OFFICER: That's to come with whatever

15 you can. I don't have a calendar in front of me, but

16 I'd like to set a hearing for not too long after

17 that to find out exactly where we are and discuss how

18 we're going to proceed from there.

19 MR. GREEN: The 18th is a Monday.

20 MR. FITZGERALD: The 19th would be Tuesday, two

21 weeks from tomorrow. We would propose we have a

22 telephonic conference or even an in-person conference

23 on that date.

24 HEARING OFFICER: Okay. That's fine, October

25 19th.

1 MR. BLANK: Telephonic? This is Bob Blank.

2 HEARING OFFICER: I'm willing to do it any way

3 you want to do it. I can do it by telephone. The

4 court reporter is probably not too happy about that.

5 COURT REPORTER: That's all right.

6 HEARING OFFICER: But if you want to come up

7 here you're welcome to come up here, or if you want

8 me to go down there I can even do that, so I'm open

9 to whatever you want to do. You can discuss it

10 among yourselves and let me know.

11 MR. FITZGERALD: Mr. Hearing Officer, Tom

12 Fitzgerald. These have been worked out pretty well, and

13 it seems to me we are reporting results of each

14 deadline, and we can probably do it efficiently by

15 phone and save a lot of people a lot of money and time.

16 HEARING OFFICER: Sure. All right. That's fine

17 with me. Let's do it by phone. Same time?

18 MR. FITZGERALD: Yes, sir.

19 HEARING OFFICER: Two o'clock?

20 MR. FITZGERALD: Fine.

21 HEARING OFFICER: All right, Mr. Green, are you

22 going to volunteer your secretary to put this together

23 again?

24 MR. GREEN: We'll do that, Mr. Menton. Let me

25 ask while we're all together, would it make sense

1 presumably to set up another day, maybe two weeks

2 after the 18th, in the event everything falls apart

3 on the 18th, and we'll say we have to report in two

4 weeks with motions and so forth for planning purposes?

5 HEARING OFFICER: I think we can tentatively

6 agree on that. I can tell you right now when we get

7 to the 18th if there's agreement with some people or

8 not agreement with some of the others I'm going to want

9 to resolve the underlying issues as to whether or not

10 I continue to have jurisdiction very promptly, so

11 I'm going to put everybody on notice of that right

12 now, and I think we can confirm on the 18th, I mean on

13 the 19th, exactly what the time frame for that would

14 be, but I think tentatively two weeks is probably

15 plenty of time.

16 MR. FITZGERALD: I appreciate the number of

17 parties who suggested some dissatisfaction with the way

18 the negotiations are proceeding, and yet I also

19 recall each of those parties on earlier occasions,

20 multiple occasions, expressing their good faith

21 negotiating efforts and desire to resolve this.

22 It's possible, I don't necessarily adopt all

23 representations as they were couched to me about

24 the nature and quality of contact and conversations

25 or even the willingness of what's been referred to as

1 an agreement to accommodate other interests, but at

2 least on the part of the United States we are and are

3 willing to listen further.

4 We solicited earlier positions from everybody,

5 we asked for a draft, and we approached everybody on

6 multiple occasions. Neither quantity nor quality of

7 the contact has been expressed, and perhaps they

8 should be.

9 But we would think it's a very important posture

10 with two weeks to go in this process to take such a

11 negative stance as is being suggested to plan now for

12 failure. Maybe I'm an optimistic, but I would like to

13 think we would be able to reach a reasonable

14 accommodation.

15 If those should precipitously crash the parties

16 are capable of getting together without taking up

17 your valuable time and drawing a scheduling mechanism

18 and getting back as needed through meetings of some

19 sort, asking a hearing be set.

20 I think we would much prefer that be done.

21 HEARING OFFICER: Okay. I'm not sure what you're

22 suggesting at the end there, but, Mr. Fitzgerald, you

23 have nobody rooting for you any harder than I am.

24 I hope that you are able to get everybody on line.

25 But I'm not quite sure what you were suggesting

1 at the end, but I think probably the best course to

2 go is to set up the hearing for the 19th and just

3 let everybody know that come the 19th the 90-day

4 period is over, and we're going to get this thing

5 going. If it means a remand back to the District or

6 if it means setting a hearing, one way or another

7 we'll get it resolved fairly quickly and get it

8 moving.

9 MR. FITZGERALD: I think we can possibly address

10 it on the 19th, and frankly although I hate to engage

11 in that doomsday attitude I think it will take longer

12 than a week or two to have everybody back on track.

13 If it totally fails we had 130 depositions still

14 to go. It will take more than a couple of days to

15 sort all that out and get the schedule up and running,

16 assuming we need to go back to maybe what we had

17 earlier.

18 HEARING OFFICER: Yes.

19 MR. FITZGERALD: It's always been our position to

20 pursue the goal of Marjorie Stoneman Douglas for an

21 early and expeditious resolution of this, however it

22 might be accomplished.

23 HEARING OFFICER: It may be that we won't be

24 looking at the same type of or extent of preparations

25 that we had to have before, and those are issues we can

1 address come the 19th.

2 With some luck and a good effort on everybody's

3 part maybe we won't have to do anything except send it

4 back for approval with the settlement agreement.

5 But in any event let's go ahead with the 19th,

6 and I want everybody to be on notice that whatever

7 the results of the settlement process is we're going

8 to resolve the fate of this administrative proceeding

9 very quickly after the 19th, whether that be to

10 schedule a hearing or remand it to the District or

11 whatever. We're going to move on that quickly.

12 Okay? Anything further?

13 MR. FERNANDEZ: Bill Green will set the next

14 conference call up, right?

15 HEARING OFFICER: Right. Two o'clock on the

16 19th.

17 MR. FERNANDEZ: All right. Thank you.

18 HEARING OFFICER: Thank you.

19 MR. GREEN: Thank you.

20 (WHEREUPON, THE HEARING WAS CONCLUDED AT

21 2:28 P.M.)

22 * * * * *

1 CERTIFICATE OF REPORTER _______________________

2 STATE OF FLORIDA )

3 COUNTY OF LEON )

4 I, SUE HABERSHAW JOHNSON, Certified Court

5 Reporter, Registered Professional Reporter, and Notary

6 Public in and for the State of Florida at Large:

7 DO HEREBY CERTIFY that the foregoing hearing

8 was taken before me at the time and place therein

9 designated; that my shorthand notes were thereafter

10 reduced to typewriting under my supervision; and the

11 foregoing pages, numbered page 1 through page 27, are a

12 true and correct record of the proceedings.

13 I FURTHER CERTIFY that I am not a relative,

14 employee, attorney, or counsel of any of the parties, nor

15 relative or employee of such attorney or counsel.

16 CERTIFIED THIS 5th DAY OF OCTOBER, A.D. 1993,

17 IN THE CITY OF TALLAHASSEE, COUNTY OF LEON, STATE OF

18 FLORIDA.

19 STATE OF FLORIDA )

20 STATE OF LEON )

21 The aforesaid instrument was acknowledged

22 before me this 5th day of October, 1993, by SUE HABERSHAW

23 JOHNSON, who is personally known to me.

CHRISTINE WHEELER

25 Notary #AA711091