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. )

) _____________________________________________

18 HEARING BEFORE: HONORABLE J. STEPHEN MENTON

HEARING OFFICER

20 DATE: THURSDAY, NOVEMBER 18, 1993

(2:02 P.M. - 3:20 P.M.)

LOCATION: HEARING ROOM 3, DESOTO BUILDING

22 1230 APALACHEE PARKWAY

TALLAHASSEE, FLORIDA

REPORTED BY: SUE HABERSHAW JOHNSON

24 CERTIFIED COURT REPORTER

REGISTERED PROFESSIONAL REPORTER

25 NOTARY PUBLIC

1 APPEARANCES:

2 Representing Petitioners, Sugar Cane Growers

Cooperative of Florida, Roth Farms, Inc.,

3 and Wedgworth Farms, Inc.:

4 WILLIAM H. GREEN, ESQUIRE

GARY PERKO, ESQUIRE

5 GEORGE WEDGWORTH, ESQUIRE (Telephone)

Hopping, Boyd, Green & Sams

6 123 South Calhoun Street

P. O. Box 6526

7 Tallahassee, Florida 32314

(904-222-7500)

Representing Petitioners, Florida Sugar Cane

9 League, Inc., United States Sugar Corporation,

and New Hope South, Inc.:

WILLIAM L. EARL, ESQUIRE

11 Peeples, Earl & Blank, P.A.

One Biscayne Tower, Suite 3636

12 Two South Biscayne Boulevard

Miami, Florida 33131

13 (305-358-3000)

14 -and-

15 WILLIAM L. HYDE, ESQUIRE

ROBERT BLANK, ESQUIRE

16 Peeples, Earl & Blank, P.A.

Suite 350

17 215 South Monroe Street

Tallahassee, Florida 32301

18 (904-681-1900)

19 Representing Petitioners, Florida Fruit and

Vegetable Association, Lewis Pope Farms,

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

Hundley Farms, Inc.:

TERRY COLE, ESQUIRE

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

Suite C

23 2700 Blair Stone Road

Tallahassee, Florida 32301

24 (904-877-0099)

1 APPEARANCES, CONTINUED:

2 Representing Intervenor, The United States

of America:

SUZAN HILL PONZONLI, ESQUIRE

4 Assistant United States Attorney

Southern District of Florida

5 Suite 627

155 South Miami Avenue

6 Miami, Florida 33130-1693

(305-536-4425)

-and-

KENNETH A. SAXE, ESQUIRE (Telephone)

9 STEPHEN MACFARLANE, ESQUIRE (Telephone)

MIKE REID, ESQUIRE (Telephone)

10 United States Department of Justice

Environmental and Natural Resources Division

11 General Litigation Section

Room 879, 601 Pennsylvania Avenue (20004)

12 P.O. Box 663

Washington, D.C. 20044

13 (202-272-4016)

14 Representing Intervenor, Florida Department of

Environmental Regulation:

LEE M. KILLINGER, ESQUIRE

16 Assistant General Counsel

Department of Environmental Regulation

17 Twin Towers Office Building

2600 Blair Stone Road

18 Tallahassee, Florida 32399-2400

(904-488-9730)

Representing Intervenor, Miccosukee Tribe of

20 Indians: (VIA TELEPHONE)

21 DEXTER W. LEHTINEN, ESQUIRE (Telephone)

Spencer and Klein, P.A.

22 801 Brickell Avenue, Suite 1901

Miami, Florida 33131

23 (305-374-7700)

1 APPEARANCES, CONTINUED:

2 Representing Respondent, South Florida Water

Management District:

PAUL L. NETTLETON, ESQUIRE

4 Popham, Haik, Schnobrick & Kaufman, Ltd.

400 International Place

5 100 Southeast Second Street

Miami, Florida 33131

6 (305-539-7222)

7 -and-

8 VALERIE BOYD, ESQUIRE (Telephone)

BARBARA MARKHAM, ESQUIRE (Telephone)

9 Assistant General Counsel

South Florida Water Management District

10 P. O. Box 24680

3301 Gun Club Road

11 West Palm Beach, Florida 33416-4680

12 Representing Intervenor, Florida Wildlife

Federation:

DAVID G. GUEST, ESQUIRE (Telephone)

14 LORI ERICKSON, ESQUIRE (Telephone)

111 South Martin Luther King, Jr., Blvd.

15 P.O. Box 1329

Tallahassee, Florida 32302

16 (904-681-0031)

17 ALSO PRESENT:

18 GERALD W. CORMICK

CURTIS D. POLLMAN

19 OTIS WRAGG

20 * * * * *

1 INDEX

2 ITEM PAGE

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

4 HEARING CONCLUDED . . . . . . . . . . . . . . . . . . 68

5 CERTIFICATE OR REPORTER . . . . . . . . . . . . . . . 69

6 * * * * *

1 PROCEEDINGS

2 (WHEREUPON, THE HEARING COMMENCED AT 2:02 P.M.)

3 HEARING OFFICER: Good afternoon. Did someone

4 call in? Did I hear correctly that someone called in

5 on the phone line?

6 COURT REPORTER: Yes, sir. Well, it was an

7 operator.

8 HEARING OFFICER: Hello?

9 OPERATOR: Hello?

10 HEARING OFFICER: Yes?

11 OPERATOR: Okay, is this Mr. Menton?

12 HEARING OFFICER: Yes, ma'am.

13 OPERATOR: I have your parties. Hold for the

14 roll call.

15 HEARING OFFICER: Okay.

16 OPERATOR: Thank you for holding. Will you

17 answer to the roll call, please? Barbara Markam?

18 MS. BARBARA MARKHAM: Yes.

19 OPERATOR: Mr. Lehtinen?

20 MR. DEXTER LEHTINEN: Yes.

21 OPERATOR: Mr. Gaines?

22 MR. JOHN GAINES: Yes.

23 OPERATOR: Mr. Wedgworth?

24 MR. GEORGE WEDGWORTH: Yes.

25 OPERATOR: Ms. Boyd?

1 MS. VALERIE BOYD: Yes.

2 OPERATOR: Mr. Guest?

3 MR. DAVID GUEST: I'm here with Lori Erickson.

4 OPERATOR: Mr. Saxe?

5 MR. KEITH SAXE: Yes, here with Mike Reid.

6 OPERATOR: Mr. Menton?

7 HEARING OFFICER: Yes, ma'am.

8 OPERATOR: Our number is "A" as in apple,

9 "R" as in red, 24067.

10 HEARING OFFICER: Okay. Good afternoon. This is

11 Steve Menton.

12 There are a number of people here in a conference

13 room with me at the Division of Administrative

14 Hearings. Probably the best way to do this is have

15 all of them identify themselves for the record, too.

16 Why don't we start with the South Florida Water

17 Management District?

18 MR. PAUL NETTLETON: Paul Nettleton on behalf

19 of the District.

20 HEARING OFFICER: Okay. For the U. S.

21 Government?

22 MR. SUZAN PONZOLI: I'm Suzan Ponzoli for the

23 United States, and with me is Steve Macfarlane

24 for the Department of Justice.

25 HEARING OFFICER: Okay. For the Department of

1 Environmental Protection?

2 MR. LEE KILLINGER: Lee Killinger.

3 HEARING OFFICER: Okay. Any other petitioners,

4 I mean supporters of the plan here?

5 Okay, for the petitioners, beginning with the

6 Coop?

7 MR. WILLIAM H. GREEN: Mr. Menton, Bill Green

8 for the Cooperative, and Gary Perko is with me.

9 HEARING OFFICER: Okay, for the League?

10 MR. WILLIAM L. EARL: Bill Earl and Bill Hyde,

11 representing the Florida Sugar Cane League,

12 U. S. Sugar, and New Hope South.

13 HEARING OFFICER: Okay, Fruit and Vegetables?

14 MR. TERRY COLE: Terry Cole, representing the

15 Growers in the EAA that are members of the Florida

16 Fruit and Vegetable Association.

17 HEARING OFFICER: That's a qualification I hadn't

18 heard before.

19 MR. COLE: It just came up. I wanted to make

20 sure everybody knew where they lived, for those on

21 the telephone.

22 HEARING OFFICER: All right. Any other parties

23 who need to be identified for the record? There

24 are several other people in the room whom I did not

25 recognize. Anybody else want to state an appearance

1 MR. GERALD W. CORMICK: I'm Gerald Cormick.

2 I'm the person that's been working as the mediator in

3 the case.

4 HEARING OFFICER: Welcome, Mr. Cormick.

5 MS. MARKHAM: And this is Barbara Markham

6 again, and I just want to state we have some staff,

7 visiting dignitaries, and members of the press

8 here.

9 HEARING OFFICER: Okay, and there is a court

10 reporter in my office here in Tallahassee.

11 Before we get started let me just apologize.

12 I think there was a little bit of confusion as to how

13 this hearing was going to work today.

14 I was scheduled to be in Miami and did not think

15 I was going to get out until mid-afternoon, I mean

16 mid-morning, today so I had indicated to my secretary

17 maybe we could set it up in West Palm Beach, and I

18 think everything got a little bit in the air as a

19 result.

20 This is not the best way to run a hearing,

21 but we'll have to make do as we can.

22 As everybody knows, we're here today for a

23 status report on the negotiations towards a settlement

24 agreement. There was an additional 30-day extension

25 granted last month. Probably the best way to start

1 is to have the District or the federal government

2 give me an update as to where they view the current

3 status of negotiations and what has been accomplished

4 since the last hearing, and then I'd like to hear

5 from all of the other parties as to where they are

6 and what they think needs to be done at this point.

7 So, Mr. Nettleton, is that you?

8 MR. NETTLETON: Yes, Mr. Menton. To start off

9 in light of your comments at the last hearing I'd

10 like to go into a little bit of detail kind of where

11 we think we are, if you think that's appropriate,

12 because you had expressed some concern of showing

13 some actual progress and substantial progress, so

14 I'd like to first of all tel you where we are as far

15 as the signatory parties to the Statement of

16 Principles, where we are with the nonsignatory

17 parties, where we are going, and what we would like

18 to do to get there, and then I'd also like to

19 address if you desire the issue of our preliminary

20 view at least on how the settlement agreement would

21 affect this proceeding which you have expressed

22 interest in in the past.

23 Again our view at this point, I come with a

24 little trepidation in the fact that we don't have a

25 signed settlement agreement to lay before you today,

1 which we had hoped to have.

2 I want to express that it's certainly not the

3 result of any lack of diligence or intense efforts

4 on the part of the parties, and in fact all of the

5 parties, not only the lawyers involved, but the

6 parties themselves, the principles who have been

7 staying up late, making policy calls and cuts on

8 drafts, 24-hour days and seven days a week over the

9 last 30 days.

10 The expectations of trying to resolve it may be

11 within the time frames we have had somewhat

12 unrealistic at the beginning.

13 I can tell you that from the District's

14 standpoint coming into this week there was a lot of

15 frustration. The Board, our Board members had

16 expressed frustration on the progress, especially

17 with regard to the seeming inability to obtain

18 closure on some of the most fundamental issues of the

19 agreement.

20 We came into this week thinking that if we

21 could not get resolution and resolve and closure on

22 certain fundamental issues with the signatories to

23 the Statement of Principles that we would be here

24 today asking you for an early trial date.

25 We went in with that attitude this week. The

1 parties put intense efforts into it. The substantial

2 issues that we were trying to resolve were two. One

3 was the section of the agreement that would deal with

4 milestones.

5 MR. GREEN: Objection. Excuse me, Mr. Menton.

6 HEARING OFFICER: Yes. I think if you start

7 getting into specifics of the settlement negotiations,

8 I'm not really interested in hearing that, and I

9 think it's probably not appropriate for me to get

10 into those specifics. I am...

11 MR. NETTLETON: All right. I understand that,

12 sir, and the only, the hesitation I have is

13 because at the last hearing you indicated you wanted

14 to hear...

15 HEARING OFFICER: I understand.

16 MR. NETTLETON: ...and it's kind of hard to

17 tell you without telling you.

18 HEARING OFFICER: Mr. Nettleton, I am sympathetic

19 to your plight, because I understand there is a fine

20 line there, but I think that Mr. Green's objection

21 is well taken, in that...

22 MR. NETTLETON: Okay.

23 HEARING OFFICER: ...if I'm going to preside over

24 a hearing I think I need to stay out of the

25 settlement aspects of it and keep my independence,

1 but I am very curious as to hearing exactly where all

2 the parties are and where we stand and where you think

3 we're going, because it's important that we make

4 some decisions as to what's going to happen with

5 this administrative proceeding, and do so on a very

6 timely basis here, so go ahead. I'm sorry.

7 MR. NETTLETON: All right. Well, you will

8 shorten my presentation greatly if I don't go into the

9 substance of what we have been doing. I guess just

10 in abstract I can tell you that people have been

11 working late into the night and trying to get where

12 we wanted to get, and we felt where we got to

13 Tuesday night at about 2:00 a.m. before everyone got

14 on a plane to come back down to West Palm for the

15 Board meeting yesterday at the District that that to

16 us, those issues were substantial, and indicated to

17 us that there was a real possibility of this think

18 getting resolved in the near future.

19 HEARING OFFICER: Now when you say resolved,

20 some of the language I'm hearing about substantial

21 and resolved, I mean, there are words I have heard

22 at the last hearing, and I guess without getting into

23 specifics are you talking now about resolved in

24 terms of everybody or resolved in terms of some

25 parties?

1 MR. NETTLETON: Well, let me clarify. I would

2 say that the last 60 days I think have been extremely

3 beneficial and made great strides in reaching

4 closure where we are not talking on concepts with

5 the parties to the Statement of Principles on the

6 major issues.

7 They are into the black-and-white, on-paper

8 agreement where it has been drafted and reviewed and

9 changed and red lined back and forth. That has

10 occurred now.

11 The first 60 days some would say, you know, why

12 weren't we doing this back in the beginning, and

13 I would submit to you, Mr. Hearing Officer, that

14 it was a necessary process that we had to go through

15 in order that the first 60 days was extremely

16 beneficial in that it allowed everyone, not just the

17 parties to this suit, but everyone to voice their

18 concerns over what was proposed by the Statement of

19 Principles and the implications of that.

20 That has been taken into account by the

21 signatories to the Statement of Principles while

22 they've been drafting, and I'm not saying the

23 drafting has been, has cleared up all those problems.

24 It certainly hasn't. But it has been taken into

25 consideration.

1 With regard to the nonparties to the Statement

2 of Principles we have tried to deal with a lot of

3 their issues in the context of drafting of what we've

4 gotten with the signatories.

5 But I think it would not be accurate if I didn't

6 say that the intense focus has been to reach closure

7 with the parties to the Statement of Principles. If we

8 don't get closure there there's no hope of getting

9 other people to sign on.

10 I think borrowing a line from Mr. Saxe, I don't

11 know if it was at a hearing or a meeting or something,

12 I think he put it well of the kind of process we're

13 trying to do here is reach closure with the Statement

14 of Principles, the signatories, keeping in mind the

15 interests, the concerns that have been expressed,

16 trying to resolve those at the same time while we're

17 drafting.

18 Once we reach closure to the extent people are

19 still not happy with it, whether that be the parties

20 to the litigation, which would be our next focus, or

21 outside parties who expressed interest in how this

22 comes out is to see how far we can then stretch that

23 agreement to accommodate those concerns, so they

24 would either sign on or have no objection to it, but

25 not stretch it so far that it breaks the entire deal.

1 And that's the kind of dynamics we're working

2 under, and I'm not saying it's a progressive

3 dynamic that we have to get to this stage before we

4 get to that one. It's an ongoing mix as we're going

5 through it.

6 I would say, not so suggest that even between

7 the signatories that everything has been rosy and

8 we're moving along getting to things, but since you

9 don't want me to mention specific issues I will try

10 to avoid that, but there has been an issue that has

11 arisen within the last couple of weeks between the

12 government parties that has created enormous concern,

13 and if that is not resolved it could create a lot of

14 problems in our entire deal.

15 We are still working on that. We have been

16 directed by our Board to continue working with the,

17 between government parties to try and resolve it.

18 The bottom line is, Mr. Menton, that we think

19 the deal is still doable here, and we think that

20 a settlement is the best way to get a final, approved

21 SWIM plan which we believe is the express intent of

22 the Legislature and the Marjory Stoneman Douglas

23 Act when it said to expedite proceedings.

24 The obvious intent was not to expedite for

25 purposes o litigation but for purposes of getting

1 the final plan, and we think that by a settlement

2 as broad based support as we can get, and again

3 without going into what we're doing, but that's

4 the best way to get there, and that's what we're

5 pursuing at this point.

6 At the Board meeting that occurred last night,

7 as most of the people in the room I'm sure already

8 know, the Board requested that we unanimously voted

9 that we come to you today and ask for an extension

10 of the stay.

11 I think it's the consensus of all parties to

12 the negotiations that it would simply be impossible

13 from a resource standpoint to attempt to do

14 litigation and medication at the same time.

15 As I said, it's not just the lawyers that are

16 involved in the medication process, but it's the

17 principles and the clients, engineers, scientists,

18 economists. They have all been a part of this whole

19 process of developing the settlement agreement.

20 Now there's two schools of thoughts on the

21 stay issue of how long the stay should be.

22 We have dealt with both of them. One has

23 been, and this was discussed before our Board,

24 between the parties and all, one is that if we set a

25 short deadline it puts pressure on and makes people

1 come to the table and cut deals.

2 The flip side of that is the other school of

3 thought is by setting short deadlines and not meeting

4 them it creates a perception of a failure when in fact

5 actually substantial progress has been made.

6 We have struggled with this issue, because I

7 think there is merit to both sides of it.

8 After there was a lot of discussion on our Board

9 last night the Board again unanimously voted to

10 request an extension of the stay from you of, I forget

11 the days, but it goes, they would request it through

12 January 31st, 1994.

13 The discussion of the 30-day stay, another 30

14 days, was brought up, and it was just the general

15 consensus of the Board members that it just was not

16 doable in that time, especially in light of a certain

17 new issue that has arisen that we need to resolve

18 between the government parties.

19 Mr. Cormick has appeared here today at the

20 request of all of the parties or at least all of the

21 parties signatory to the Statement of Principles,

22 more so because not to take anybody's side or

23 anything else, but we requested him to be here

24 because of your comments at the last hearing that you

25 wanted to be sure there was substantial progress.

1 I don't know if Mr. Cormick is in any position

2 to say, he doesn't want to say anything on the

3 substance of what's going on, but he might be able

4 to shed some light on the process of what we're

5 going through.

6 HEARING OFFICER: I mean, I think at the last

7 hearing is when we heard substantial progress.

8 MR. NETTLETON: I don't know else to phrase it,

9 though.

10 HEARING OFFICER: Okay. Well, let me see if I

11 understand what you're saying. You have gotten to

12 the point where there are drafts of a settlement

13 agreement that have been exchanged between the

14 parties, and negotiations have taken place regarding

15 proposed changes to that settlement agreement, and

16 that process is still ongoing. Is that what I'm

17 understanding?

18 MR. NETTLETON: Yes, sir.

19 HEARING OFFICER: Are there portions of the

20 settlement agreement that have now essentially been

21 put to bed? In other words, you have resolved it,

22 or are they all inter-related so that you can't

23 treat it that way or what?

24 MR. NETTLETON: They are all inter-related to

25 the extent that no one is going to sign off of a

1 final signoff of a section without seeing the whole

2 thing in context, but I would say that some of the

3 sections have been pretty much put to bed, except for

4 grammatical changes and some slight issues that

5 have been tweaked out that still need to be

6 resolved, but the major portions are in black and

7 white now, and I think they are pretty much to bed.

8 The other parties can...

9 HEARING OFFICER: The major portions of the

10 entire agreement or portions of sections of the

11 agreement? I'm not sure I'm following.

12 MR. NETTLETON: Well, it would be both. The

13 major sections or major portions of the agreement,

14 what we think is the heart of the agreement, we think

15 has been accomplished between the signatory parties.

16 HEARING OFFICER: Okay. At this point are you

17 still talking about just the signatory parties to the

18 Statement of Principles as being signatory to the

19 settlement agreement? Is that what you're looking at?

20 MR. NETTLETON: At this stage, that's correct.

21 HEARING OFFICER: Okay. Have you given any

22 thought to some of the issues that we have discussed

23 before as to what happens with respect to

24 nonsignatories?

25 MR. NETTLETON: Well, as I said, our hope is that

1 by drafting this rule we will bring some of those

2 in.

3 To the extent we don't in our drafting between

4 the signatures accommodate their interests all the

5 way, we hope to be able to still address their

6 concerns.

7 Again I don't want to say it's on a timing

8 basis that we're waiting until the end, but our

9 primary focus is to get absolute closure between the

10 signatories, and then if we can still move that,

11 whatever we come up with, in order to accomplish what

12 Mr. Green needs, we want to do that.

13 I'm not saying we can do it. It may be

14 completely inconsistent, and it may be impossible,

15 but that is our intent, and we hope to be able to

16 accomplish it.

17 HEARING OFFICER: All right. Have you at this

18 point determined whether the settlement agreement

19 would result in modifications?

20 I'm sure there have to be modifications to the

21 SWIM plan. Have you thought about how that will

22 occur? Is it going to be an amendment process?

23 MR. NETTLETON: Yes, Mr. Menton. I have spoken

24 with both Mr. Green briefly on this in Washington a

25 couple of days ago and Mr. Cole this morning just on

1 the effect, you know, again assuming that there's a

2 settlement agreement that everyone does not join.

3 Obviously if everybody joins there's no problem,

4 and it would disappear.

5 If, however, there were still parties who did

6 not join in the settlement agreement, again as a

7 preliminary view we see that the settlement agreement

8 would require us to take substantial amending action

9 and reformulating the action that's currently being

10 challenged in this proceeding.

11 We envision that that would probably moot the

12 issues that are currently pending before the Court.

13 Now the way that would go about procedurally,

14 I think there are different routes which are viable

15 under the law. One would be to keep the DOAH

16 proceedings in place and amend the application and

17 permit, which there is precedent for, while the

18 proceeding is pending, allow DEP to issue a new

19 notice of intent. That would definitely trigger a

20 new point of entry. So there may be additional

21 challenges, and the parties would then be given an

22 opportunity, because I think they would agree the

23 issues would change, to amend their petitions.

24 The other thing is because of the substantial

25 nature of the change which would anticipatorilly

1 occur that we think essentially it's the reformulating

2 of the action which would essentially moot the

3 actions being challenged here, and as a practical

4 matter, again I believe there are precedents for

5 this, we could reach some form of stipulation I would

6 hope with all the petitioners who don't join the

7 settlement to dismiss the proceedings at that

8 stage as on a mootness grounds, remand or relinquish

9 jurisdiction back to the affected agencies for

10 dismissal on grounds of mootness, no adjudication on

11 the merits, and petitioners would then have an

12 opportunity to file new petitions when the

13 reformulated action was taken, along with anybody else

14 who's substantially affected.

15 That's how we see it going. I'm not sure which

16 route is the best.

17 Another concern I would raise as well is from

18 the District standpoint if we ended up back in

19 litigation with certain parties or whether it is a

20 continuation of the same litigation during the

21 process, we would hope to be able to preserve as

22 much discovery so it would not have to be repeated

23 again, and I'm sure we could reach stipulations to

24 that. I don't want to say I'm sure, but I would hope

25 we could reach stipulations in that regard, with the

1 understanding to the extent issues change, science

2 may have developed more, that there may be a need

3 obviously to do discovery, the same person might have

4 to be deposed again.

5 HEARING OFFICER: Mr. Nettleton, if I were to

6 grant the request for an additional stay, what do you

7 think you're going to tell me January 31st?

8 MR. NETTLETON: Well, I would hope, Mr. Menton, I

9 can tell you we have a settlement agreement. That's

10 what I was hoping I would be able to tell you today.

11 I'm becoming very reluctant to say that in light

12 of the history we have gone through.

13 I know you don't want to hear it, but I'm going

14 to say we'll come back with more substantial

15 progress.

16 I just don't know exactly how much time is needed.

17 I would hope we could do it by then.

18 But I don't know for sure, and I'm reluctant

19 in light of past history at this point to suggest to

20 you that we will definitely have it by that time.

21 It is certainly our hope and our expectation and

22 our Board last night gave very strong direction that

23 they don't want everybody waiting until January 1st

24 to start picking up the ball, that we need to go

25 immediately and pick it up like it's the last week

1 again, and that's what we intend to do.

2 In fact, as we sit here I believe we still have

3 a few more people in Washington negotiating on

4 sections. I know they were through last night.

5 HEARING OFFICER: Okay. Ms. Ponzoli?

6 MS. PONZOLI: I think that I would support the

7 things that the Water Management District has said.

8 I think as to the signatories to the Statement of

9 Principles, we have really come much further, and

10 I don't know if it offends or you think it's

11 appropriate or what Mr. Green thinks is appropriate,

12 but I have a substantial number of documents to which

13 the signatories have a high level of agreement.

14 If you want me to name those to you I can, or

15 if you think it's inappropriate. You tell me your

16 pleasure.

17 MR. GREEN: I'll object.

18 HEARING OFFICER: Yes, I don't want to get

19 into the specifics of it.

20 MS. PONZOLI: That's fine. If you feel it's

21 specifics, then I'm content to point these two

22 large piles of documents out to you.

23 MR. GREEN: I've got some piles in my briefcase,

24 too.

25 MS. PONZOLI: Okay, that's the signatories.

1 As to the nonsignatories I have to tell you that we

2 have made a large effort to meet one of the very

3 serious needs of the environmentalists, which is

4 to try to move one of the STAs off of public land onto

5 private land. That created serious problems...

6 MR. GREEN: Objection, Your Honor.

7 MS. PONZOLI: ...for those people. Well, you

8 know, I have to be able to say something in support

9 of progress.

10 HEARING OFFICER: Okay. I think that's general

11 enough that it's not going to prejudice my view of

12 the case.

13 MS. PONZOLI: Okay. As to the Cooperative,

14 we have done other things, and the Fruit and

15 Vegetable Association also, and we have tried to

16 meet some of the native American needs, both with

17 the Seminoles and the Miccosukees.

18 We have had more success with one native

19 American group, but we are certainly trying to address

20 the other group's needs.

21 I have to tell you I think that we wish we

22 were further along than we are, but I don't think

23 it's for lack of trying, and I think among the

24 signatories we are very close.

25 HEARING OFFICER: Are there any deal breaker issues

1 remaining amongst the signatories that have not

2 been resolved? Are you down to just the technical

3 aspects of it, or are there still some deal breakers

4 that are out there?

5 I mean, are we looking at a possibility that

6 you're gong to come back January 31st and say, "The

7 Statement of Principles is gone, and we're back

8 to square one"?

9 MR. NETTLETON: I would have to say, Mr.

10 Menton, in light of our Board meeting last night,

11 some of our Board members did express this issue

12 that I haven't told you about that has recently

13 arisen between the governmental parties that has

14 been termed a deal breaker by some of the Board

15 members. That was not the entire Board.

16 There are issues that are problematic, but

17 again we think we can work through them, and we're

18 certainly trying to work through them.

19 MS. PONZOLI: I think that is accurate from

20 our standpoint. I think there are things that would

21 cause us to have to leave the table, but I don't

22 think the federal government thinks those issues

23 cannot be overcome.

24 It is our view that we can overcome all those

25 very thorny issues among the signatories to the

1 Statement of Principles, and I think in fairness

2 I need to tell you that we have made major

3 commitments of tie by attorneys and senior policy

4 level people.

5 We have two special assistance to Secretary

6 Babbitt who are devoting full time to this. In

7 the last two weeks we have brought in a Deputy

8 Assistant Attorney General, Miles Flint, who is

9 devoting enormous amounts of time personally to

10 sitting at the negotiating table.

11 (WHEREUPON, MR. FITZGERALD ENTERED THE MEETING

12 ROOM.)

13 The Deputy Assistant Secretary of Water in EPA

14 has been brought in, and the Assistant Administrator

15 for Water will be working with us. We have a brand

16 new U. S. Attorney who is being briefed daily on

17 this.

18 The federal government is involved in this and

19 committed to this in a very substantial, full

20 attention. We intend to bring this to a successful

21 conclusion, because we really believe that the

22 problems that we have addressed are that serious.

23 They need attention, and this resolution is the

24 way to do it. This is the way to move forward.

25 If we have to fall back into full-blown litigation

1 on everything, we are setting back progress for the

2 Everglades by years.

3 We do not see that as the way to achieve the

4 end we have sought throughout this.

5 HEARING OFFICER: But let me ask you this, though.

6 I mean, from the time that we first talked about

7 the Statement of Principles it's been, it seems

8 obvious to me that there are some parties, and again

9 this may be bargaining, leverage, or whatever, that

10 have stated repeatedly that they are not on board,

11 and sometimes they have complained they haven't been

12 included or whatever, but it certainly has been my

13 impression that there are some parties who

14 irrespective of what happens amongst the signatories

15 are not going to sign the settlement agreement, and

16 that we are facing ultimately a resolution of the

17 litigation.

18 Is that your sense, too, or am I misreading the

19 situation?

20 MS. PONZOLI: I have eternal hope that we will

21 bring in everyone by the end. I just do.

22 I'm not sure that's based on reason, but I do

23 have that hope, and I think that we are committed,

24 as I think the Water Management District is

25 committed, to making every effort to satisfy enough of

1 the needs that those people, that it would no longer

2 be attractive to them to litigate.

3 While they might not agree, it's possible some

4 of them might not even sign. They might feel that

5 it was more advantageous to them not to litigate and

6 to proceed under the program that was put in place

7 than to go back to war.

8 HEARING OFFICER: Okay. Well, I mean, obviously

9 the reason I raise that is because if your optimistic

10 scenario does not pan out and we do find ourselves

11 back in litigation, even if it's with fewer parties

12 and over different issues, then the scenario that

13 you're talking about is before us again in terms of

14 who knows how long it's going to take before we

15 resolve the litigation.

16 The concern that I have is to make sure that we

17 can get this case in a posture so that if we don't have

18 all the parties signatory to the settlement agreement

19 that we can move it ahead very quickly and resolve

20 at least the administrative hearing aspect of it and

21 get the case moving along.

22 My concerns are that we can negotiate,

23 negotiate, negotiate, and continue on and then find

24 ourselves also back in a litigation mode, and then

25 everyone says, "Well, we've got to go do all these

1 depositions, and we have to do this, and we have to

2 do this preparation, and we need a year to get

3 ready for the hearing again."

4 And then we're into the, you know, who knows

5 how long in the hearing process. I'm not sure that

6 we have saved ourselves any time in the long run and

7 in fact may have extended the time even further.

8 MS. PONZOLI: I think in terms of helping the

9 Everglades we can go forward. If the major signatory

10 parties are in agreement it's my belief we will be

11 able to go forward with certain actions, making

12 progress in those actions even if we are litigating in

13 smaller wars.

14 So the greater good we sought to accomplish

15 will be moving forward. There will still be some

16 pieces of litigation, but they will be much shorter,

17 much more truncated, is my hope.

18 I'm like Mr. Nettleton. I don't want to sit

19 here and promise you things I can't deliver, because

20 I may be facing you for a year or a year and a

21 half, I don't know, and I want my credibility to be

22 there.

23 HEARING OFFICER: I understand.

24 MS. PONZOLI: I think you have to almost, and

25 you certainly could not, it would not be appropriate,

1 you have to sit through the days that Mr. Nettleton

2 was speaking of that go on to realize how

3 difficult this is and how draining.

4 I really think you can represent honestly that

5 everyone in this room has tried, and that includes

6 the nay sayers at the table. They have sat

7 through long, hard days, cooled their heels in hotels,

8 and gone on and on.

9 This is not an easy thing. It is half the

10 state we're dealing with here and a cleanup program

11 that's substantial.

12 HEARING OFFICER: I can tell by how much all of

13 you have aged now it's been work.

14 MS. PONZOLI: You're not supposed to look at me

15 when you say that, Mr. Menton.

16 In regard to the amount of time, we will support

17 the Water Management District, but I must say it

18 had been our desire to absolutely have you come back

19 to us on December 17th with some clearcut progress

20 on the dominant agreement.

21 We decided to ask for a 30-day stay, knowing

22 that we would need more time.

23 We believe that this litigation and your

24 focusing on going forward is a very critical element

25 of forcing people to continue.

1 This is hard. This is hard to keep going week

2 after week. Some of us have litigated together

3 five years. It's hard to sit down and start

4 agreeing word by word through a document. It's very

5 difficult.

6 We would like to come back on December 17th,

7 either that being the end of a short stay, or as the

8 mid-point of a little longer stay and report to you.

9 That would be our recommendation, and we believe that

10 in that time we could have the dominant agreements

11 accomplished, but there would still be these

12 additional agreements and the appendices.

13 A number of these documents are technical

14 appendices that would have to go to the dominant

15 agreements, and they would need to be finalized,

16 and that will require some additional time.

17 HEARING OFFICER: I'm not sure I followed you.

18 You are saying you think by the 17th of December

19 you could come back with the settlement agreement

20 along with the modifications to the SWIM plan, or

21 that's what you're hoping?

22 MS. PONZOLI: No, the modifications will flow

23 out of the overall settlement.

24 In some ways the modification could be this

25 document here, and in some ways folded into the SWIM

1 plan. It's a remedy and implementation of the

2 remedy, would be my view of it.

3 HEARING OFFICER: Mr. Killinger, do you have

4 anything you wanted to add?

5 MR. KILLINGER: Yes, to the extent the horse

6 is not already dead I will give it a try. We concur

7 with the District's request for an extension through

8 the end of January, and I share the concerns about

9 making an iron-clad promise we will have the document

10 signed of on by everybody by then.

11 This is enormously complex, and it has been

12 made abundantly clear to everybody around the table

13 since it started that new issues do come up from

14 this, and the devil is in the details.

15 When you try to put something on paper that

16 everybody can agree to, it's tough, and then when

17 you get something down that most people agree to

18 you show it to somebody else and they want to twist it

19 a little bit, and it takes more work to do that.

20 That's part of what the problem has been.

21 It gets larger and larger as we try to deal with

22 more and more things or make a policy call, and

23 we'll do it some other way.

24 We are dealing with concerns from the cities on

25 the east coast who are concerned about their water

1 supply, and this Indian tribes and the agricultural

2 interests and the state parties as well, and there

3 is an enormously complex task.

4 I don't think, I think it would be a sad thing

5 to push it so fast that it breaks. I don't think it

6 can go any faster. I think substantial progress is

7 being made, and if we don't want to get into

8 details of where we are, which I don't think is

9 appropriate, I think that's all we can say.

10 There has got to be a decision made by the people

11 who are litigating it about whether or not we think

12 we can settle it or whether or not, and if we think

13 we can settle it how will we go about doing that.

14 What we think is that we think we can settle it

15 with everybody or with some people, and either one

16 of those is worth trying, and it will take more

17 time to try it.

18 I think if we can get it done by the end of

19 January, that's great. We will have to see what

20 else comes up and see how far we can get.

21 I hope we can get it resolved. I think everybody

22 would like to see us do something else.

23 HEARING OFFICER: Mr. Cormick, without

24 jeopardizing your position as the mediator in this

25 process I'm interested to hear from you whether it's

1 your view there has been substantial progress

2 on the substantial agreement that we had last time.

3 MR. GERALD W. CORMICK: There certainly has,

4 and for the reasons many of those who have spoken

5 have made.

6 We are working for written drafts, and the

7 drafts have been exchanged between a number of the

8 parties. It is a very focused thing in terms of

9 the discussion.

10 Most of the discussions are in terms of

11 broad, conceptual ideas, but how do we make these

12 things happen, and how do we make them work.

13 It is enormously difficult and complex. I mean,

14 in terms of aging, I didn't have grey hair when I

15 started, and, you know, so many parties, and even

16 the parties are made up of parties in many cases.

17 We are talking about a 20-year marriage in

18 effect between a number of parties, and everyone

19 feels they need to be very certain what they are

20 entering into and how you deal with uncertainties

21 down the road, and my sense is in terms of level of

22 effort there's no question that that has been

23 there. In terms of my own experience everybody

24 has been very available to me and very much focused

25 on how do we solve the problems.

1 HEARING OFFICER: I'm interested, again without

2 jeopardizing your position in this, I'm interested in

3 your gut feelings on the issues that I raised with

4 Ms. Ponzoli with respect to whether we are looking

5 at the same amount of litigation down the line

6 after this whole process is over or whether you think

7 the agreement is likely to occur, and even if we do

8 have litigation that it will be reduced in scope.

9 MR. CORMICK: Well, quite independent of this

10 proceeding, Mr. Hearing Officer, I wouldn't encourage

11 the parties to continue the level of effort and

12 energy they re putting into it if I didn't think

13 they would reach an agreement.

14 In terms of what would or could happen down the

15 road if not all parties at interest were enthusiastic

16 supporters, I cannot speak to that very well.

17 I don't think it would be appropriate, except

18 to say that my limited experience in these kind of

19 broad public issues, there's always somebody who

20 finds themselves having standing at some point.

21 I don't know how you could possibly embrace

22 everything. My goal would be to have everybody

23 materially affected support an agreement. That's

24 where I see it going.

25 HEARING OFFICER: Okay. Before we get to the

1 petitioners, any other proponents of the plan that

2 wanted to have some input in this process today?

3 Mr. Fitzgerald?

4 MR. FITZGERALD: Having been quoted rather

5 extravagantly based on what I said last month,

6 Mr. Hearing Officer, I don't think so.

7 I checked the record, incidently, which was

8 meticulously kept by the court reporter. In fact,

9 I didn't say what certain gentlemen in the fourth

10 estate said I said.

11 HEARING OFFICER: Okay. I guess the next step

12 would be to hear from petitioners and those other

13 intervenors as to what their positions are, and since

14 the League is signatory to the Statement of

15 Principles why don't we start with them?

16 MR. EARL: Thank you, Mr. Hearing Officer. We

17 join the Water Management District's request for a

18 continuation of the stay until January 31st. We do

19 not think it is wise to come back and do it again

20 on the 17th.

21 We understand Ms. Ponzoli's requested

22 modification, but we think it's better to continue

23 working through the 31st.

24 I would add, Mr. Hearing Officer, the Water

25 Management District Governing Board, where many of us

1 were yesterday, spent from two o'clock to eight

2 o'clock debating just this issue about how long it

3 should take, and we heard a lot of information on

4 whether there should be a stay.

5 We came up with a recommendation of the 31st.

6 You have a different judgment to make.

7 I would, you may recall I was not very vocal

8 at the last hearing. I can tell you that there has

9 been major movement on core issues that were not

10 agreed to last time. There are written agreed to

11 documents now that didn't exist that are not

12 tentative but that are agreed to, such as as everyone

13 else has said looking at the package as a total,

14 but they are agreed to.

15 We have made major movement. I would also concur

16 with Ms. Ponzoli from our clients' perspective there

17 is not time in a medication of this scale, which I

18 think is unprecedented in Florida, and Mr. Cormick

19 can give you some perspective on this scale,

20 500 million dollars, 400 million dollars, issues

21 and complexity.

22 It's taking most of the key senior executives

23 in representing the companies I represent and the

24 League, taking the lawyers and the consultants and

25 the teams, Mr. Menton, that would otherwise be

1 devoted to litigation.

2 We can't do both at the same time. We really

3 can't. So a determination to go back to litigation

4 would be a determination in our clients' view

5 that the mediation will probably be determined

6 by the failure of mediation.

7 We can't do both at the same time, given the

8 intensity and the level of effort that is involved.

9 There are other, and I might add, Mr. Hearing

10 Officer, with regard to where we are, there is, there

11 will emerge from this process, times are changed,

12 there are different issues as you have heard, given

13 the length of time these matters have been pending,

14 and you will have a different SWIM plan that's being

15 litigated if you decide to go back to litigation

16 tomorrow or today.

17 There would be different issues, major different

18 issues.

19 For example, there's an issue of law that has

20 arisen that's being discussed in mediation, but

21 it's an issue of law that will have to be addressed

22 in these proceedings if we go back to litigation,

23 and that is the Environmental Protection Agency in

24 the last two or three weeks has determined that an

25 NPDES Clean Water Act permit is now required for

1 the discharges from the stormwater treatment areas.

2 That is a major new component. They have not been

3 designed to do that.

4 The District says they need to know the

5 design parameters, that's one example, Mr. Hearing

6 Officer.

7 Given that we could not go back to litigation.

8 That's a major unknown in terms of the SWIM plan.

9 It has to be resolved, and that was a major focus of

10 the hearing of the Board and the discussions.

11 That's an example, but that is a major change in the

12 circumstances here.

13 So the existing SWIM plan that's been before

14 DOAH now for a considerable period of time, that's

15 an illustration of why that plan is not the one that

16 is going to be limited.

17 HEARING OFFICER: So you're saying all my

18 reading has gone for naught?

19 MR. EARL: No, it's helpful background material.

20 We would ask that you extend the stay to January 31st.

21 Where we'll be on January 31st I don't think anybody

22 can say we'll be concluded. We believe we will

23 be, and we hope we will be concluded, but again

24 the scale and scope of these issues are unprecedented,

25 and in the mediator's experience and certainly in my

1 experience in 22 years practicing environmental law

2 in Florida there hasn't been another one like this,

3 and I would urge you to allow the parties who have

4 an interest who are devoting the resources and

5 energy to continue through the 31st.

6 HEARING OFFICER: Mr. Cole?

7 MR. COLE: I would concur with what's been said

8 already. We are one of the nonsignatory parties.

9 We have been participating in this.

10 There are issues that will have to be addressed

11 that are going to be unique to the vegetable farmers.

12 In the Statement of Principles it deals with BMPs

13 and things like that. Much of that addressed the

14 raising of sugar cane, and no one has had an

15 objection to looking at those issues, but the

16 intense effort has been to try to deal with the

17 large ownership of land...

18 MR. GREEN: Excuse me. We're getting into

19 specifics of the issues. I just don't think that's

20 appropriate.

21 HEARING OFFICER: Okay, in terms of, I think

22 maybe that aspect you are getting a little bit too

23 far, but your comments are raising a concern, because

24 it seemed to me at the last hearing we had what I heard

25 from the fruit and vegetable growers was that the

1 focus of the events was on the sugar growers, and

2 your issues hadn't been addressed yet, and it seems

3 to me you are saying the same thing today. Am I

4 right?

5 MR. COLE: Yes, sir. I would say that they

6 have not been completely addressed, because they are,

7 I view that it is probably going to take a separate

8 agreement for the Fruit and Vegetable Association

9 using major components from the other one.

10 And that's why we have been participating in

11 this effort, because this is not wasted effort on

12 that. We have been given input into it, but there

13 are certain things that we view will not work in

14 this, just simply because of the difference in the

15 techniques and elements involved in vegetable

16 farming versus sugar cane farming.

17 So we concur wit the need for the extension.

18 We are participating in that. We have not signed off

19 on it, some of it simply because it would not apply

20 to us on its face, and we'll need further work.

21 We are prepared to do that. I have met with

22 our growers. They continue to be interested in

23 resolving this, and we will continue to participate

24 in this, and we want to find a way to resolve it if

25 we can, and we want to reserve our rights if we can't.

1 We concur in the need for the extension through

2 January 31st. I think I was the one last time that

3 some concern was expressed by the parties when

4 I said I didn't think we'd have an agreement, and

5 that's simply because it's a very complex, that's

6 already been used too many times, but as this is

7 being pu together other issues are arising that

8 also have to be dealt with, and I think we'll probably

9 find other issues to deal with that we are not even

10 thinking of now as we do it, because I guess we all

11 didn't have the foresight to know this. But one

12 issue raises another, and then all the parties are

13 going to have to have the patience to do it. It

14 takes time to do it.

15 That's why we concur in it. We are, our folks

16 would like to find a means of resolving this

17 through the mediation efforts if we can.

18 HEARING OFFICER: You are not a signatory to

19 the Statement of Principles, and at this point you

20 still don't know if you will be a signatory to the

21 settlement agreement?

22 MR. COLE: I can't tell you whether we will or

23 not, Your Honor, until there's something put together.

24 There are things that would not apply. We

25 can't agree to some issues that we know would not apply.

1 to vegetable farming, and I don't believe on the

2 other hand it has been asserted that they do.

3 We will have to resolve that, but I think there

4 is only so much potential attention to be focused

5 on these at a time.

6 HEARING OFFICER: Mr. Green?

7 MR. GREEN: Mr. Menton, I think that this case

8 proves it is very difficult to formulate agency

9 action through litigation, if there ever was one.

10 Our views are we are pessimistic still. Quite

11 honestly it's kind of like trying to make an airplane

12 out of an orange crate.

13 I haven't seen any drafts that are anywhere

14 close to anything I could recommend to my clients

15 that they agree to, but we have seen potential

16 embryos of ideas which if they took over a complete

17 metamorphosis in this whole deal we might be able

18 to agree to, but that's not going to happen in 60

19 days, I don't think.

20 HEARING OFFICER: There's a difference between

21 embryos and substantial agreement.

22 MR. GREEN: That's where we sit.

23 MR. NETTLETON: Those are just his issues.

24 MR. GREEN: Well, you know, this case, and I'll

25 try to be careful what I say, and I understand

1 everyone is working diligently.

2 I agree with that part of it certainly.

3 The parties around the table have worked very hard,

4 very long, and with Mr. Cormick. You know, you

5 can hardly beat people harder to make them do more.

6 I don't think that's the problem.

7 I think that in real life for there to be a

8 global settlement there has to be a complete

9 metamorphosis of the proposed agency action. It

10 isn't there yet. I doubt it will be there.

11 We are content to stand back and hope and

12 participate where we can as long as it doesn't

13 prejudice the rights of my clients.

14 I know there are others who haven't spoken yet

15 who might feel that their points of view are pretty

16 far removed from potential settlement as well.

17 In terms of just the specifics, and I won't

18 get into the issues, and I appreciate others trying

19 to steer away from them, I think what it boils down

20 to if you go for a January 31st date which was

21 proposed, if you add two more weeks for gearing

22 back up the discovery schedules and assume that we

23 are going with the original plan, which is obsolete,

24 we know we've got 90 days of depositions that

25 aren't fluff.

1 We went back and looked at our list, and we have

2 a good 60 depositions that will go two and a half

3 days average, so that's about five depositions a

4 day for 90 days if we go every other two weeks.

5 If you add a month and a half for hearing

6 preparation to that I get July 1st, ballpark.

7 If we are litigating this new proposal and

8 if it's unable to settle, I think Mr. Earl is

9 correct, it's a different beast, a different agency

10 action.

11 I can't say Mr. Nettleton and I have reached

12 any kind of meeting of the minds on the procedures.

13 I mean, there have been discussions. People have

14 talked.

15 I frankly have difficulty seeing how you can

16 have two plans in two different places at the same

17 time under 120.

18 I sort of don't think you can. I think that

19 the agency has to kind of decide what it's going to

20 do, and you probably need to pull the plan. You

21 probably ought to do it now and go about coming up

22 with a good plan that everyone has agreed to, but

23 that's not what's being proposed, and obviously I

24 can't make it happen, but I think because of these

25 new issues you're probably going to add another month

1 or two, and it's August or September, and that's

2 very optimistic in our view.

3 I wanted to say that to be, to tell you where

4 we stand on this. That's where I think it goes if

5 we don't settle.

6 Now if they pull the plan and move the

7 controversy and the permit which is associated with

8 it, then obviously they have taken back jurisdiction,

9 and we're not over here until they do something else.

10 I can't control that either, but in good faith

11 and good conscience I will say we want this to

12 resolve, we want the best thing for the State of

13 Florida, we want the best environmental result and

14 the best social result and the best result for

15 everybody, and with that in mind I really think

16 that we've got a long road to travel to get there in

17 the current status, but we're willing to continue to

18 try.

19 Again if we could preserve our rights, and

20 I don't know, I had two suggestions of things that

21 of course you know about.

22 One is the mercury testing in the ENR, and

23 we've been discussing that with Mr. Nettleton, and

24 I think we're real close on that, and he can speak

25 to that.

1 Our goal would be to have our scientists go

2 out if possible, if it fits the District's schedule,

3 the week of December 8th maybe for a week, and with

4 the possible followup, but I think they can get it

5 done in a week, and we'd like to be allowed to go

6 ahead and do that if that's not objectionable.

7 We think it's appropriate.

8 The other item we'd like to go forward with

9 is really non-DOAH discovery, such as FOIA requests

10 and public records requests. It's kind of innocuous.

11 We've been doing that. There's been pretty good

12 cooperation by the District and others.

13 It doesn't take the time of the mediators, but

14 we feel that it's appropriate and necessary to

15 protect our clients' interests, in the event that

16 they are all disappointed with the settlement efforts.

17 HEARING OFFICER: Okay. Mr. Green, the first

18 issue that you raised regarding the ENR testing,

19 obviously we have talked about that the last two

20 hearings, and I was curious as to how that stood.

21 Mr. Nettleton, I don't know if you wanted to add

22 anything...

23 MR. NETTLETON: I think what Mr. Green said is

24 accurate. I think we are close. We have agreed to

25 let him go under certain conditions on a permit

1 which we provided to him in draft form. We're

2 working on it, and he's supposed to be getting back

3 to me with his comments on that, and we're going to

4 deal with it.

5 But as far as him going in, that decision is

6 pretty much made, as long as he doesn't dump any of

7 his samples in the waters of the U. S.

8 HEARING OFFICER: Okay. The testing raises one

9 issue that I was curious as to. I guess it's fair

10 to characterize it as having been pessimistic in

11 this process as to whether or not the end result

12 would be something you would be able to live with, and

13 I know that you have mentioned several times about

14 the number of depositions you think will be necessary

15 before we're ready to go to hearing, and I have

16 indicated before I will let you do that before I

17 decide on the hearing date.

18 Do you see at this point and given having

19 been involved in the negotiations and without getting

20 into the specifics, do you see that there are any

21 other discovery type issues in terms of testing or

22 other access issues that may come up as a result of

23 the changes that may come about in the SWIM plan,

24 and is that going to expand the discovery process

25 also?

1 Mr. Green?

2 MR. GREEN: I expect it will, yes, sir, in the

3 number of depositions. That's how I got the extra

4 month. I think you will see I got 10 or 20

5 depositions, and frankly we don't even know who the

6 parties are. We may have to be deposing people that

7 before we were working with.

8 HEARING OFFICER: I guess I'm being a little

9 bit evasive and maybe I need to be a little bit more

10 blunt.

11 What I'm wondering is given the way this SWIM

12 plan seems to be changing to a certain degree, if

13 ultimately you don't agree to getting on board, are

14 there certain types of new tests that you believe

15 you're going to need to do? And the reason I

16 raise that is perhaps there are some areas such as

17 this ENR testing that we may be able to get

18 going, so that we can, that shouldn't distract or

19 detract from the preparation or the negotiations of

20 the settlement agreement, and yet may add to the

21 preparation in terms of the ultimate hearing, if

22 one is necessary.

23 MR. GREEN: Appreciate your asking that question.

24 I'd like to, we will take that under advisement as

25 we get back at the next two or three weeks from

1 now, whatever you feel is appropriate. We'll see if

2 we can expedite any of those types of things and

3 bring them to your attention and the parties.

4 MR. NETTLETON: Mr. Hearing Officer, just to

5 comment on that, I do want to let you know that

6 this entry and access is not insubstantial in the

7 sense that it does take resources of the District.

8 We will be attending the sampling that will be

9 conducted by Mr. Green's clients. These are the

10 same technical people who are also involved in the

11 mediation efforts.

12 I don't know if the United States is going to

13 want to be involved in this or the DEP, so it's not

14 completely isolated from the whole process.

15 I would hate to get into a situation where we

16 are going into massive research projects out there

17 which could detract.

18 I would also like to state this for the record

19 by allowing him in to do his testing we are not

20 conceding the admissibility of whatever he comes up

21 with, the competency of anything he comes up with...

22 MR. GREEN: I agree.

23 MR. NETTLETON: ...the evidence or anything else.

24 HEARING OFFICER: That's understood. That's a

25 given. And I'm not trying to say at this point that

1 I would allow Mr. Green or anybody else to do those.

2 I'm just trying to think through some ideas as to

3 how we might keep this case on track and how best

4 to approach that.

5 I would certainly give you an opportunity to

6 comment on that before I would allow anything to

7 proceed.

8 MR. KILLINGER: If I could just pipe in here for

9 a second, Mr. Green mentioned the FOIA and public

10 records requests and said they would not take time

11 and resources, but I will assure you that a public

12 records request takes legal time and legal resources

13 away from my Department.

14 It's a legal request with legal implications,

15 and if we get into situations where we have what is

16 absolutely discovery in under the guise of a public

17 record request because the state statute authorizes

18 it, we'll have a substantial objection during the

19 proceedings to settle.

20 HEARING OFFICER: I don't know that I would

21 have authority to resolve a public records request

22 dispute.

23 MR. KILLINGER: I'm not sure you would, either,

24 but that's my position.

25 MR. NETTLETON: We would join.

1 MS. PONZOLI: To the extent he's asking we

2 agree or your blessing, you need to realize the

3 position by the Florida Sugar Cane League that all

4 of the people are involved in this effort. It is

5 true from my side also, and I represent five

6 federal agencies.

7 If someone answers a FOIA request the attorneys

8 are involved in gathering massive numbers of data or

9 documents.

10 This is discovery. It's legal, but it is

11 discovery, and a party who wishes to break down the

12 mediation process could use it as a very effective

13 weapon to damage our ability to put our focused

14 efforts on resolution.

15 So I want to object very strenuously to that.

16 I would also like to comment on the several

17 comments of parties who never liked the SWIM plan in

18 the first place, that it's obsolete and different.

19 Our view is that problem described is very

20 accurate and remains as good as it was.

21 If the remedy is changing and expanding in a

22 broader scope, that might require an amendment, but

23 we do not have an obsolete SWIM plan.

24 I think that the technical plan that's presently

25 being mediated requires financial contributions from

1 people voluntarily from that side of the table, and

2 if that financial contribution is missing I suspect

3 we will have a very scaled down project, and it will

4 probably be the one that's on the table now.

5 Without agreement we cannot, without substantial

6 agreement we cannot go forward with this voluntary plan.

7 HEARING OFFICER: We have substantial agreement.

8 MS. PONZOLI: We're there. We're there then.

9 That's why I'm so hopeful. That's why I have aged so

10 much.

11 MR. GREEN: Very briefly on the FOIA/public

12 records, those are all interesting theories, but

13 we're not talking about massive administration with

14 requests.

15 Our primary interest is staying up with the

16 District data that they take routinely as a matter of

17 practice on flows and concentrations and things like

18 that, that we continue to have to analyze.

19 If we have to wait months to get it it takes

20 months to analyze it, and these are things available

21 to anyone on the street who asks for it.

22 We feel that we should be able to do that, and

23 that your stay should not prohibit that. That was

24 the purpose of it, not to lose motion that otherwise

25 could be wasted.

1 I don't think it requires 33 technical types

2 to deal with it. It's just normally someone from

3 our shop calls someone from their shop at staff

4 level and gets publicly available information. That's

5 what I'm talking about.

6 If that's a problem, let's talk about it.

7 MR. NETTLETON: It can be a problem. It just

8 depends on what the request is and the scope of the

9 request.

10 There's enormous amounts of data being collected

11 by the District, and it takes an enormous amount of

12 effort sometimes to get that together.

13 Until I know a specific I would not be able to

14 do that, but I don't know if this is, like I say, the

15 appropriate forum anyway.

16 MS. PONZOLI: I think there's a problem. It's

17 not reciprocal, because we can't obtain back what he's

18 obtaining from us.

19 I would like to address on the mercury entry

20 since clearly the Cooperative intends to use this data

21 information be treated in the same way as the EAA data

22 information is being treated and since I believe

23 they will have to be open, I would like the ability

24 to open up my data.

25 So I would make that request. I think they

1 should be treated in a similar fashion, Mr. Menton.

2 HEARING OFFICER: Okay. I guess this goes back

3 to the issue I have stated while all this has been

4 going on in terms of the testing that has taken place.

5 I assume that testing has been completed and the

6 data has been held, and I'm not quite sure I

7 understood what you're requesting. You're requesting

8 Mr. Green to hold his and limit the use of his like

9 you've been doing with yours, or are you requesting

10 that both of them be opened up and released, and I go

11 back and revisit the issues that were raised?

12 MS. PONZOLI: I can live with it either way,

13 Mr. Menton. I'd like an even playing field.

14 MR. GREEN: What's her protectible interest in

15 this? This is state land.

16 MS. PONZOLI: I always maintained the other data

17 should be open, Mr. Green, and so what I think I'm

18 saying is I would like all the data open.

19 MR. GREEN: Well, we would object to that.

20 HEARING OFFICER: Would you agree to hold yours

21 in the same way she's holding hers until I come back

22 and look at the issues?

23 To be honest with you, I started drafting an

24 order, and I put it on abeyance, and it's been sitting

25 there ever since.

1 MR. GREEN: Sure. We would agree to hold

2 it until you rule upon it, but we might ask for an

3 expedited ruling, depending on the results. We

4 think they are important.

5 MR. NETTLETON: We would join Ms. Ponzoli,

6 that it has to be one way or the other, and it

7 shouldn't be that Mr. Green should be able to

8 publicize something in isolation out of context.

9 HEARING OFFICER: We don't need to spend a lot

10 of time on this. Mr. Green, hold yours under the

11 same arrangement that Ms. Ponzoli is doing, and I'll

12 go back and pull that and do an order. I just...

13 MR. GREEN: That's fine.

14 HEARING OFFICER: I had forgotten about it, to

15 be honest with you. I'll go back and do an order on

16 it, and it shouldn't take me too long. Once

17 that order is out if there's some other issues we

18 need to take up at the next hearing....

19 MR. GREEN: Thank you.

20 HEARING OFFICER: Mr. Lehtinen, Mr. Guest, the

21 two of you I haven't heard from, is there anything

22 you wanted to add?

23 MS. ERICKSON: This is Lori Erickson in David

24 Guest's office. Our clients basically concur in the

25 need to extend the stay but not to the lengths that

1 the other parties think so.

2 We believe that this is, seems like it's going

3 on indefinitely, and perhaps if a trail date were

4 set it would give everyone a target to work for and

5 prepare for what's going to happen, and we'd be in

6 favor of a shorter stay and a trial date as early as

7 March perhaps.

8 HEARING OFFICER: Okay. Mr. Lehtinen?

9 MR. LEHTINEN: Our position is that you should

10 do what you said you'd do at the last hearing, no

11 more stays, you can give them three months for

12 discovery, take Christmas into account, set a hearing

13 now for late March or early April.

14 I'm sure that everything they say is true about

15 the backroom deals. They are discovering new issues

16 and settling new issues.

17 They are eventually going to reach a deal.

18 It's clear there is a tremendous, tremendous desire

19 to avoid the application of the law in this case

20 and to reach a political settlement.

21 The only problem with everything that everybody

22 says is it's illegal.

23 The only thing that a Hearing Officer is supposed

24 t do is hold a hearing. The only thing the Water

25 Management District is supposed to do is enforce the

1 law.

2 If those folks aren't willing to do that,

3 they ought to resign, and if you're not willing to

4 hold a hearing you ought to start drawing your

5 paycheck somewhere else yourself.

6 This is an absolute, atrocious charade of public

7 policy. It's a throwback to medieval days when the

8 land barons and when the feudal feifdoms had more

9 power, and the citizenship had nothing.

10 It is an absolute, utterly miserable display

11 of this unwillingness to apply the law equally in

12 the State of Florida.

13 Everybody can see that except people in public

14 life who are running for cover from big, special

15 interests. This is not going to end with some constant

16 extension of an administrative process that would

17 have been over with by Christmas if there hadn't

18 been extensions in March and April, if the lying

19 had not been accepted as the truth in July, if the

20 lying that is occurring today were not accepted in

21 a courtroom.

22 This is something that should be laughed out

23 of this chamber. They ought to be set for a hearing,

24 and they ought to be chastised for having made

25 misrepresentations to you time and time again which

1 they simply cannot meet.

2 Thirty days ago it was 30 days. Today it's

3 60 days. They are never going to meet the requirements

4 of the law. They're never going to do what they're

5 required to do under the law, and why in this

6 administrative process we condone the private,

7 backroom deal making which is prohibited in American

8 public policy and cut out the very people who are

9 supposed to know about the deal, like the Indian

10 tribes in the Everglades, is beyond me, except

11 Mark Twain said it. "Water flows uphill towards

12 money." Tallahassee is controlled by money. This

13 sort of administrative hearing does nothing but

14 demonstrate money talks in Florida in and out of

15 its courts.

16 HEARING OFFICER: Mr. Lehtinen, are you saying we

17 should go to hearing next week on the SWIM plan that

18 was proposed two years ago? Is that what your

19 position is?

20 MR. LEHTINEN: Our position is you should go to

21 hearing as soon as possible.

22 HEARING OFFICER: What do you say we go to

23 hearing on?

24 MR. LEHTINEN: It could be discovery, but the

25 most they need is...

1 HEARING OFFICER: Mr. Lehtinen, what do you say

2 we go to hearing on?

3 MR. LEHTINEN: Well, Judge, if you have to ask

4 me that question, I'm not the one to give you the

5 advice. You draw a paycheck for knowing Chapter 120.

6 MR. GREEN: I object to that.

7 MR. LEHTINEN: There is that in front of you.

8 Read the pleadings.

9 MR. GREEN: That's scandalous.

10 MR. LEHTINEN: That's what you go to hearing

11 on. What are you supposed to do, read the pleadings

12 and then take oral representations?

13 You have no right to take oral representations,

14 contrary to the properly pled pleadings in this

15 court.

16 We got rid of that system where private and oral

17 representations supplant the rule of law.

18 The law is what matters. What is before you

19 is what matters, not what a bunch of lawyers paid to

20 lie sit and say to you in a courtroom.

21 MR. GREEN: Objection, Your Honor.

22 HEARING OFFICER: Hold on. I'm still not

23 sure I understood your answer. What do you propose

24 we go to hearing on?

25 MR. LEHTINEN: We go to hearing on the

1 challenge to the SWIM plans, to the proposed agency

2 action by the South Florida Water Management

3 District.

4 HEARING OFFICER: Okay.

5 MR. EARL: Mr. Hearing Officer, may I request

6 that the court reporter, I assume, Ms. Habershaw,

7 you are keeping a tape on this proceeding, an audio

8 tape?

9 COURT REPORTER: Yes, sir, as well as the

10 verbatim shorthand.

11 MR. EARL: Mr. Hearing Officer, may I request

12 that that tape be maintained specifically as to

13 Mr. Lehtinen's last presentation to capture the

14 emotional tone and nature of the presentation and the

15 accusatory approach on it?

16 HEARING OFFICER: Okay. You can work that out

17 with the court reporter.

18 MR. NETTLETON: Mr. Menton, on behalf of the

19 District we would move to strike Mr. Lehtinen's

20 scurrilous comments, and we take issue with his

21 representation that there have been any

22 misrepresentations in this room.

23 MR. LEHTINEN: Let me make it clear...

24 HEARING OFFICER: Mr. Lehtinen, let Mr.

25 Nettleton speak.

1 MR. LEHTINEN: I don't expect to have any...

2 HEARING OFFICER: Mr. Lehtinen, let Mr. Nettleton

3 speak.

4 MR. LEHTINEN: I am a citizen of Florida. I

5 have a right to make these remarks.

6 HEARING OFFICER: You have a right to make

7 the remarks, Mr. ...

8 MR. LEHTINEN: He's just trying to posture by

9 making those kinds of statements. If they want to

10 sue the Indian tribe, then do it.

11 HEARING OFFICER: I have heard enough. Let

12 Mr. Nettleton have his say. You will speak in order.

13 MR. NETTLETON: All I did was move to strike.

14 I believe his statements were inappropriate and

15 unfounded, made without any factual basis whatsoever,

16 and as far as I'm concerned I know of no

17 misrepresentation. There has certainly been none

18 made by me in this room.

19 I think his statements are completely inaccurate.

20 MR. GREEN: I concur with that motion.

21 HEARING OFFICER: Okay, I'm going to deny the

22 motion to strike. I think everybody has an opportunity

23 to have their say.

24 Are there any other parties who wanted to have

25 a comment before I ruled on the ore tenus motion to

1 extend the stay?

2 Okay. I think as I indicated last time that

3 we have been going on for a while now, and I keep

4 hearing substantial progress, and I have yet to see

5 the results, but I understand the complexity of this

6 case, and it's my feeling based upon the presentations

7 that I have heard today that the parties have been

8 working diligently towards trying to reach a

9 settlement agreement amongst those that will be

10 signatories and perhaps modifications to the SWIM

11 plan.

12 I'm not going to extend the stay until January 31st

13 I want to hear status of this case in mid-December,

14 find out what progress has been made, and make sure

15 that there are continuing, ongoing efforts towards

16 getting this case moving.

17 Secondly, I think that while I am going to

18 extend the stay until December 17th in terms of

19 discovery, depositions, requests for production,

20 interrogatories, etcetera, I want to give the

21 parties an opportunity to focus on the negotiations

22 and the mediations that are taking place.

23 I do think that it's important that each of the

24 parties begin to give thought to what happens at the

25 end of the negotiation process, because we are

1 rapidly approaching that.

2 We may be approaching it more rapidly than

3 some of the parties would like it to be approaching,

4 but we are approaching the end of that process.

5 In that regard I don't think it would require

6 a great deal of effort for all of the parties to

7 begin to think about what they will need in terms

8 of additional discovery, testing, etcetera, prior

9 to the time we go to hearing if there is not any

10 settlement agreement that includes all of the parties.

11 So I guess what I'm saying is that I don't

12 think it will be a big distraction from the negotiation

13 process to have one of the attorneys for each of the

14 sides to begin giving some thought to it and begin

15 drafting up their ideas as to what they will need in

16 terms of discovery and testing prior to the time of

17 the final hearing.

18 In terms of the final hearing, I think the

19 latest word that we had on that was it would not

20 start until at least the beginning of the year.

21 Obviously it will not start before that.

22 The hearing date, we're going to leave open in the

23 air at this point, and I'll want to hear some more

24 about what happens as a result of the negotiations

25 and what additional discovery is necessary.

1 Clearly from what I'm hearing, nobody is going

2 to be prepared to go to hearing at least until the

3 beginning of March, so we will not start a hearing

4 until then at the earliest, but I'll leave that

5 issue open, and then we can revisit it.

6 I do anticipate that moving this, if there's

7 nota settlement agreement that includes all the

8 parties, I'm going to move this case to hearing as

9 quickly as I can, and I'll give everybody a fair

10 opportunity to present what they think is necessary,

11 but I'm going to try to move it to hearing as quickly

12 as I believe meets the requirements of due process.

13 All right. Any other comments or discussions

14 we need to take up today?

15 In the meantime, Mr. Nettleton and Mr. Green

16 will resolve this ENR testing issue.

17 MR. GREEN: Yes, sir.

18 HEARING OFFICER: Mr. Green, you will give

19 some thought in terms of the issue that I raised,

20 if you do not end up to being a signatory, aside

21 from the general depositions that might be

22 necessary, what other testing or access issues may

23 come up based upon some of the modifications that

24 are being discussed at this time.

25 MR. GREEN: Yes, Your Honor, we'll do it.

1 HEARING OFFICER: Okay. December 17th is the

2 day that was thrown out. We don't need to have people

3 come here in person. We can do it by phone. I don't

4 want to have everybody taking too much time out, but

5 I do want to get a better read on where this case

6 stands on December 17th.

7 MR. COLE: Same time as today, Your Honor?

8 HEARING OFFICER: Yes, two o'clock. We'll do it

9 by phone. Mr. Green will set it up.

10 MR. GREEN: Yes.

11 HEARING OFFICER: Okay. Thank you.

12 (WHEREUPON, THE HEARING WAS CONCLUDED AT

13 3:20 P.M.)

14 * * * * *

1 CERTIFICATE OF REPORTER _______________________

2 STATE OF FLORIDA )

3 COUNTY OF LEON )

4 I, SUE HABERSHAW JOHNSON, Certified Court Reporter,

5 Registered Professional Reporter, and Notary Public in and for

6 the State of Florida at Large:

7 DO HEREBY CERTIFY that the foregoing hearing was

8 taken before me at the time and place therein designated; that

9 my shorthand notes were thereafter reduced to typewriting

10 under my supervision; and the foregoing pages, numbered page 1

11 through page 68, are a true and correct record of the

12 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 20th DAY OF NOVEMBER, A.D. 1993, IN

17 THE CITY OF TALLAHASSEE, COUNTY OF LEON, STATE OF FLORIDA.

18 STATE OF FLORIDA )

19 STATE OF LEON )

The aforesaid instrument was acknowledged

before me this 20th day of November, 1993, by SUE HABERSHAW

JOHNSON, who is personally known to me.

24 CHRISTINE WHEELER

Notary #AA711091