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

19 HEARING OFFICER

20 DATE: FRIDAY, DECEMBER 17, 1993

(2:04 P.M. - 2:58 P.M.)

LOCATION: HEARING ROOM 2, 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 (Phone)

GARY PERKO, ESQUIRE (Phone)

5 GEORGE WEDGWORTH, ESQUIRE (Phone)

CAROLYN RAEPPLE, ESQUIRE (Phone)

6 ROBERT P. SMITH, ESQUIRE (Phone)

Hopping, Boyd, Green & Sams

7 123 South Calhoun Street

P. O. Box 6526

8 Tallahassee, Florida 32314

(904-222-7500)

Representing Petitioners, Florida Sugar Cane

10 League, Inc., United States Sugar Corporation,

and New Hope South, Inc.:

WILLIAM L. EARL, ESQUIRE (Phone)

12 Peeples, Earl & Blank, P.A.

One Biscayne Tower, Suite 3636

13 Two South Biscayne Boulevard

Miami, Florida 33131

14 (305-358-3000)

15 -and-

16 WILLIAM L. HYDE, ESQUIRE

ROBERT BLANK, ESQUIRE

17 Peeples, Earl & Blank, P.A.

Suite 350

18 215 South Monroe Street

Tallahassee, Florida 32301

19 (904-681-1900)

20 Representing Petitioners, Florida Fruit and

Vegetable Association, Lewis Pope Farms,

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

Hundley Farms, Inc.:

TERRY COLE, ESQUIRE (Phone)

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

Suite C

24 2700 Blair Stone Road

Tallahassee, Florida 32301

25 (904-877-0099)

1 APPEARANCES, CONTINUED:

2 Representing Intervenor, The United States

of America:

SUZAN HILL PONZOLI, ESQUIRE (Phone)

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-

MYLES E. FLINT, ESQUIRE (Phone)

9 Deputy Assistant Attorney General

United States Department of Justice

10 10th Street and Constitution Avenue, NW

Washington, D.C. 20530

11 (202-514-2000)

12 Representing Intervenor, Florida Department of

Environmental Protection:

LEE M. KILLINGER, ESQUIRE (Phone)

14 DAN THOMPSON, ESQUIRE (Phone)

RICHARD DORN (Phone)

15 Department of Environmental Regulation

Twin Towers Office Building

16 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

17 (904-488-9730)

18 Representing Respondent, South Florida Water

Management District:

PAUL L. NETTLETON, ESQUIRE (Phone)

20 R. BENJAMIN REID, ESQUIRE (Phone)

Popham, Haik, Schnobrick & Kaufman, Ltd.

21 400 International Place

100 Southeast Second Street

22 Miami, Florida 33131

(305-539-7222)

1 Representing Respondent, South Florida Water

Management District, continued:

JOAN LAWRENCE, ESQUIRE (Phone)

3 VALERIE BOYD, ESQUIRE (Phone)

Assistant General Counsel

4 South Florida Water Management District

P. O. Box 24680

5 3301 Gun Club Road

West Palm Beach, Florida 33416-4680

Representing Intervenor, Miccosukee Tribe of

7 Indians:

8 DEXTER W. LEHTINEN, ESQUIRE (Phone)

STEVE VINCENT, ESQUIRE (Phone)

9 Spencer and Klein, P.A.

801 Brickell Avenue, Suite 1901

10 Miami, Florida 33131

(305-374-7700)

-and-

GENE DUNCAN, ESQUIRE (Phone)

13 Miccosukee Tribe

P. O. Box 440021

14 Tamiami Station

Miami, Florida 33144

15 (305-223-8380)

16 Representing Intervenor, Florida Wildlife

Federation:

DAVID G. GUEST, ESQUIRE (Phone)

18 111 South Martin Luther King, Jr., Blvd.

P.O. Box 1329

19 Tallahassee, Florida 32302

(904-681-0031)

ALSO PRESENT:

GERALD W. CORMICK (Phone)

22 ADAM YEOMANS

23 * * * * *

1 INDEX

2 ITEM PAGE

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

4 HEARING CONCLUDED . . . . . . . . . . . . . . . . . . 47

5 CERTIFICATE OR REPORTER . . . . . . . . . . . . . . . 48

6 * * * * *

1 PROCEEDINGS

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

3 TELEPHONE OPERATOR: Will you please answer to the

4 roll call? Steve Vincent?

5 MR. STEVE VINCENT: Here.

6 TELEPHONE OPERATOR: George Wedgworth?

7 MR. GEORGE WEDGWORTH: Here.

8 TELEPHONE OPERATOR: Lee Killinger?

9 MR. WILLIAM H. GREEN: Operator, let me give you

10 another number for Mr. Killinger.

11 TELEPHONE OPERATOR: He should be on. Mr.

12 Killinger, are you on the line?

13 MR. LEE KILLINGER: Yes, I am.

14 TELEPHONE OPERATOR: All right. Thank you.

15 TELEPHONE OPERATOR: Terry Cole?

16 MR. TERRY COLE: Yes.

17 TELEPHONE OPERATOR: Gerry Cormick?

18 MR. GERALD W. CORMICK: Yes.

19 TELEPHONE OPERATOR: Suzan Ponzoli?

20 MS. SUZAN PONZOLI: Yes, I'm here.

21 TELEPHONE OPERATOR: Bill Earl?

22 MR. WILLIAMS L. EARL: Yes.

23 TELEPHONE OPERATOR: Bill Hyde?

24 MR. WILLIAM L. HYDE: Yes.

25 TELEPHONE OPERATOR: David Guest?

1 MR. DAVID GUEST: I'm here.

2 TELEPHONE OPERATOR: Paul Nettleton?

3 MR. PAUL NETTLETON: Here.

4 TELEPHONE OPERATOR: Joan Lawrence?

5 MS. JOAN LAWRENCE: Yes.

6 TELEPHONE OPERATOR: Valerie Boyd?

7 MS. VALERIE BOYD: Yes.

8 TELEPHONE OPERATOR: Steve Vincent?

9 MR. VINCENT: Yes.

10 TELEPHONE OPERATOR: And Dexter Lehtinen?

11 MR. DEXTER LEHTINEN: Here.

12 TELEPHONE OPERATOR: Bill Green?

13 MR. GREEN: Here.

14 TELEPHONE OPERATOR: If you have any difficulties,

15 our tollfree number is 1-800-232-1234. The reference

16 number is "A", apple, "R", Robert, 53717. Are there

17 any other parties?

18 HEARING OFFICER: I think that will do it.

19 TELEPHONE OPERATOR: Than you for using AT&T.

20 Have a good afternoon.

21 HEARING OFFICER: This is Stephen Menton. I'm

22 here in my office here in Tallahassee. Bill Hyde is

23 here, as well as Adam Yeomans from AP.

24 Is there anybody else on the conference line that

25 was not mentioned that wants to state their appearance?

1 MR. KILLINGER: This is Lee Killinger. I've

2 got Richard Dorn from the Attorney General's Office

3 with me and Dan Thompson, our Assistant Secretary of

4 the Department.

5 HEARING OFFICER: Okay. Anybody else need to

6 state an appearance?

7 MR. NETTLETON: Paul Nettleton, and Ben Reid is

8 also here with me.

9 HEARING OFFICER: Okay. Any other appearances?

10 MR. LEHTINEN: Dexter Lehtinen. There are

11 people listening if you want to know that.

12 HEARING OFFICER: I don't specifically care.

13 I just want to know if anybody wants to state an

14 appearance.

15 MR. LEHTINEN: All right.

16 HEARING OFFICER: Okay. This conference call

17 was established at the conclusion of our last status

18 conference in an effort to get an update on the status

19 of the negotiation efforts.

20 Why don't we begin with either the District or the

21 federal government. Who want to go first?

22 MR. NETTLETON: Mr. Hearing Officer, Paul Nettleton

23 for the District.

24 I regret that as of last evening it appears that

25 we have reached an impasse in the settlement negotiations

1 between the government parties and the agricultural

2 signatories to the Statement of Principles.

3 In light of that we cannot at this stage represent

4 that we are hopeful that the continued mediation

5 will be helpful at this point.

6 Due to that we need to start looking ahead, and

7 we think this raises both procedural as well as

8 substantive issues at this point.

9 If I could continue if procedurally we go forward with

10 the current litigation of the SWIM plan we believe

11 that as practicality and reality it will take at least

12 until mid-January to get a deposition and discovery

13 schedule together between the parties.

14 In the past it has generally taken us two or three

15 weeks of coordination and three or four solid days

16 of sitting around a table getting everybody with their

17 calendars to get a deposition schedule together.

18 We are internally at this point exploring some

19 possible options of the streamlined discovery and

20 especially the deposition process in the past, and

21 we intend to discuss that with the parties in the coming

22 days.

23 Of course, on the more substantive issue the

24 question has been raised during these proceedings as

25 to whether the District intends to go forward with the

1 current SWIM plan as it stands.

2 Quite frankly, that's a call that ultimately has

3 to be made by the District's Governing Board. The

4 Board will have to determine if it is committed to the

5 current SWIM plan, in which case authority to go forward

6 with the litigation as it currently stands, or if the

7 Board decides it needs to be pulled or amended in some

8 respects in light of the events and the knowledge gained

9 over the last year and a half.

10 As I understand it, the next regularly scheduled

11 Board meeting at which this issue could be determined

12 with any kind of reasonable consideration is on

13 January 13th.

14 Because of that the District at this time would

15 request, Mr. Hearing Officer, that in order to give us

16 time to sort out the procedural and substantive

17 matters we would propose and I believe with the

18 concurrence of the other government parties and at

19 least some of the petitioners, and I understand also

20 the opposition by others, that a stay of the discovery

21 be continued through Friday, January 14th.

22 We would propose that we convene for a hearing

23 on the 14th before Your Honor to advise you as to any

24 decisions made by the District's Governing Board on the

25 13th, and that in the meantime to avoid any lost time

1 in this process we propose the parties begin attempting

2 to contact their experts as to availability for

3 depositions.

4 We understand there is going to be some

5 difficulty in this regard because of the timing of

6 this. Being during the holiday break on many of the

7 universities most of our experts and I believe most

8 of the parties as well are associated with universities

9 we may have a hard time getting ahold of them, but we

10 suggest going ahead and setting up meetings to

11 coordinate a discovery schedule with all the parties,

12 and also during that process as we are working through

13 discovery that's needed we also would try to reach

14 agreement on a final hearing date, which we would

15 present to you on the 14th, and if we cannot agree on

16 that we would submit that the parties could make their

17 unilateral request, and we could sort it out at that

18 hearing.

19 As a formal matter, Mr. Hearing Officer, I would

20 also, I believe Mr. Cormick is on line, the mediator,

21 and I thin it's normal in mediation situations that the

22 mediator does report the results of mediation, and

23 I think he's here for that purpose.

24 MR. CORMICK: Yes.

25 HEARING OFFICER: Thank you. Mr. Cormick?

1 MR. CORMICK: Yes. At the session that ended

2 yesterday...

3 HEARING OFFICER: I'm having a little bit of a hard

4 time hearing you. Can you speak up a little bit?

5 MR. CORMICK: Sure. The discussions that ended

6 yesterday...

7 MR. GREEN: Objection. Mr. Menton?

8 HEARING OFFICER: Yes, sir?

9 MR. GREEN: Bill Green. I don't think that's

10 necessary for your decision, and we don't think it's

11 appropriate.

12 HEARING OFFICER: Any discussions before

13 Mr. Cormick?

14 MR. GREEN: Yes, sir.

15 HEARING OFFICER: Okay. I think, I do want to

16 hear from Mr. Cormick as to what has taken place.

17 I think as we discussed at the last hearing I'm

18 not interested in the specifics of the mediation

19 process or how offered what to whom and when, but I

20 am interested in his perspective as to the status of the

21 mediation.

22 So I'm going to allow him to continue with his

23 presentation. If there are specific areas you think

24 go beyond those parameters, Mr. Green, you can of

25 course voice your objection then.

1 MR. LEHTINEN: Mr. Menton?

2 HEARING OFFICER: Yes, sir?

3 MR. LEHTINEN: Dexter Lehtinen. I understand

4 it may be appropriate for Mr. Cormick to comment, but

5 I would add perhaps in the same vein as Mr. Green just

6 for the record there really was no mediation, no

7 court-appointed mediation, and so forth, and I don't

8 object to Mr. cormick speaking, but the use of the

9 term mediation is for the record a general use and

10 not having been ordered by a court or agreed upon.

11 HEARING OFFICER: Well, I think the stay was

12 entered with my approval, based upon the efforts of

13 the mediator, which I understood to be Mr. Cormick.

14 Go ahead, Mr. Cormick.

15 MR. CORMICK: very well. Mr. Hearing Officer,

16 what I'd like to do is read a statement if I could

17 which deals only with procedural and not

18 substantive matters.

19 The effort to mediate issues pertaining to

20 litigation from the 1991 settlement agreement and the

21 SWIM plan began one year ago.

22 Regretfully to say what I believe to be the

23 intense good faith efforts of all involved, we have

24 been unable to come to closure on all matters involved

25 at this time.

1 In my perspective the mediator's present

2 ability to reach agreement on all matters did not

3 arise from individuals' or parties' positions or

4 recalcitrance but rather rises from the complexity of

5 the issues remaining to be resolved and future

6 uncertainties in a project of this magnitude.

7 There was significant progress, a technical

8 plan and an approach to be crafted to serve as the

9 basis for the settlement talks, and I emphasize that

10 last phrase.

11 An agreement in principle is to guide the

12 discussions. Hundreds of pages of language were drafted

13 to make it a reality.

14 However, agreement on all the issues has not been

15 proven possible at this time.

16 I am certain that all of those involved would

17 concur that the time and effort involved were both

18 necessary and worthwhile.

19 There is a clearer understanding of the needs and

20 interests of the parties' options available for addressing

21 the problems.

22 This groundwork may well lead to future agreement.

23 Not to try would have been the worst failure of

24 all.

25 HEARING OFFICER: Okay. Anything else you wanted

1 to add?

2 MR. LEHTINEN: No, I think that's all. I'd be

3 willing to respond to any questions as appropriate.

4 HEARING OFFICER: I'd like to hear from some

5 of the other parties, and then we may come back to

6 you.

7 Did the federal government have any additional

8 comments that they wanted to make?

9 MS. PONZOLI: No, Mr. Menton. We would support

10 the need for the period of time to get back into a

11 litigation mode.

12 It is, we are entering the height of the holidays,

13 and we will begin to contact our witnesses immediately

14 to find out their availability for depositions so that

15 we could sit down in fact with the other parties and

16 look at what we're going forward on and how we

17 would prepare our discovery schedule and an appropriate

18 trial date, but I believe the necessary amount of time

19 given that the key expert witnesses do appear to

20 remain to be deposed, and they are in a couple of

21 countries, so contacting them and setting up a

22 deposition is no small task.

23 HEARING OFFICER: Has the federal government, do

24 they have a position at this time as to whether or not

25 the hearing in this process, you know, assuming we go

1 forward, is going to be on the original SWIM plan

2 that was drafted and adopted in I guess March of '92?

3 MS. PONZOLI: No, Mr. Menton, we do not have a

4 position at this time, but we have, we intend to talk with

5 the other parties about this over this period of time

6 and would be prepared to come back to you with a very

7 firm position on the 14th.

8 HEARING OFFICER: Okay. No specific dates in mind

9 at this point from the federal government?

10 MS. PONZOLI: For a trial date were we to go

11 forward on the present plan?

12 HEARING OFFICER: Right.

13 MS. PONZOLI: No, sir.

14 HEARING OFFICER: Okay. Mr. Killinger or

15 Mr. Thompson for DEP? Do you have any...

16 MR. KILLINGER: This is Mr. Killinger. We concur

17 with what eh District as requested and echo what the

18 feds have said.

19 I think it's a little bit difficult to come up

20 with a potential trial date right now, a recommendation,

21 without knowledge of what the Governing Board may

22 do and without discussions about which direction we're

23 going to take.

24 I also think there's a potential complicating

25 factor as to new issues which will be alleged based on

1 what's gone on since the litigation was put on hold to

2 try to work things out in settlement.

3 So I think we all need to sit down and have some

4 discussions on where we need to go, and perhaps there

5 will be amendments of expert witness lists and

6 additional discovery of new issues before we can come

7 down to a trail date and set up a schedule.

8 HEARING OFFICER: Okay. Let's hear from the

9 petitioners, beginning with the League. I have Mr. Hyde

10 in my office. I guess Mr. Earl is also on the phone.

11 MR. EARL: Yes, Mr. Menton. This is Bill Earl.

12 We fully support Mr. Nettleton's motion, and I would

13 also endorse Mr. Killinger's comments.

14 It would be difficult and probably a waste of

15 time and incur unnecessary expenses for everybody to

16 proceed with discovery until we see what the Board is

17 going to do with the existing plan.

18 There is a question we have been asking the District

19 over the last several hearings, and I think all of us

20 need to see what the Board is going to do on the 13th.

21 We will report back to you promptly on the 14th.

22 We in the meantime, as Ms. Ponzoli has said and

23 Mr. Nettleton and Mr. Killinger have said, will work

24 among counsel to plan, get the consultants' availability

25 dates, and plan discovery so we on the 14th will have for

1 you some framework for proceeding as well as hopefully

2 an agreed trial date.

3 HEARING OFFICER: Okay. How about the Coop?

4 Mr. Green?

5 MR. GREEN: Mr. Menton, Bill Green here. Sitting

6 in with me are Bob Smith, Carolyn Raepple, and Gary

7 Perko for the record.

8 Mr. Menton, we have sort of mixed feelings about

9 the need for a stay to determine the Governing Board's

10 position on the action that's being challenged, which

11 kind of makes us think it should be remanded back to

12 them today on the permit, because the government hasn't

13 decided what it wants to do yet, and the problem we've

14 got between now and the 14th of January is sitting down

15 and contacting experts, setting deposition schedules,

16 is I think you have heard most recently here from

17 Mr. Killinger and others that we don't even Know what

18 the issues are yet until the plan is set, and we don't

19 know what the plan is yet.

20 It's sort of like going through a fire drill to

21 spend a week or two coming up with a discovery

22 schedule by the 14th.

23 HEARING OFFICER: Mr. Green, I'm sorry to

24 interrupt you, but that raises a point that I had

25 thought about in the past.

1 Maybe it's appropriate now for me to bring this

2 out and get input from all the parties.

3 Early on in this case, as we discussed the

4 hearing date and how we were going to proceed with the

5 hearing we had talked about the possibility of

6 segmenting the hearing or trying to break it down

7 into some component parts that might be logical

8 and make the whole process a little easier to deal

9 with.

10 I have given some thought to that a long time

11 ago, and I haven't really sat down and looked at it

12 since then, but as I recall some of my thoughts back

13 then it seemed to me that there were some pretty clear

14 demarcations in the petitions as to issues challenging

15 the underlying assumptions that were set forth in the

16 SWIM plan as well as challenges to the strategies

17 that were set forth in it.

18 In that regard there are also I think probably

19 distinguishable issues regarding the permits involved,

20 both the structural points and the master permit that

21 has been discussed.

22 As we are sitting here talking now it would seem

23 to me maybe that one of the best ways to approach this

24 is to try to break down the hearing along those lines.

25 I'm just throwing these out for suggestion and

1 comment now.

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

3 Guest. I have a problem with your proposal on that

4 as it relates to this administrative hearing.

5 HEARING OFFICER: Okay. I'll give you a chance.

6 Let's take it on down the line, and I want Mr. Green

7 to finish, and then I'll get to you, Mr. Guest. Let me

8 just finish my thoughts, and we may be on the same

9 track, or we may not.

10 It would seem to me that in regards to the

11 issues challenging the assumptions set forth in the

12 SWIM plan, those are pretty well, they should be able

13 to be isolated pretty clearly, and maybe a lot of the

14 issues of discovery have been done on this, and we

15 may be able to get those started a little bit

16 quicker than challenges to the strategies that will be

17 set forth in the plan and the implementing of those

18 strategies.

19 So I don't know, Mr. Green, whether that would meet

20 with your approval or whether you have any opposition

21 to that. What do you think?

22 MR. GREEN: Well, Mr. Menton, we have given some

23 thought to that, but we obviously haven't briefed it,

24 and we don't have, haven't thought through all the

25 ramifications, but if you are talking about the order

1 of presentation in one hearing that's one thing. If

2 you're talking about having two separate events, that's

3 another.

4 I think we have the same witnesses covering both

5 sides of that coin to describe the strategies versus

6 assumptions of the multiple parties, so I think we

7 would engage in probably two sets of depositions.

8 We aren't sure how you would put it back together

9 in terms of the recommended order.

10 We fear it would, it might end up that there

11 would be a new SWIM plan that would have to come out

12 and new parties might come in, and let's say it was

13 amended. Obviously it would create a new point of

14 entry and more parties coming in that really didn't

15 have a chance to address the first rounds of

16 inquiries.

17 Our preliminary view on that is to ensure due

18 process for everyone we have to keep it together.

19 We talked about the possibility of separating this

20 a long time ago, maybe a year and a half ago, but

21 there's been so much water that has flown under the

22 dam that we don't see how we can separate them.

23 HEARING OFFICER: Okay. Go ahead, Mr. Guest.

24 Did you have any other comments, Mr. Green?

25 MR. GREEN: No, sir.

1 HEARING OFFICER: Okay. Mr. Guest?

2 MR. GUEST: Thank you, Mr. Hearing Officer. We are

3 very concerned at the inability collectively to

4 comply with the requirements of the Douglas Act for

5 discovery. It requires this proceeding be

6 expeditiously done, and it was with grave reservations

7 that we heard over the past several months a repeated

8 explanation we needed to stop the train, stop the

9 litigation, stop the discovery, stop the adjudicatory

10 process because of these settlement discussions.

11 Now we've gotten to the end of the settlement

12 discussions and say, "Well, let's take another month of

13 delay."

14 We don't think that's justified.

15 There are 150 witnesses that are left to be

16 deposed, and I don't think it could possibly be

17 persuasive to say that all 150 of those are at the

18 North Pole for the next four weeks. They are out for a

19 week of vacation, maybe a little longer. Discovery

20 was halted very quickly.

21 I think that a much shorter time frame, we

22 could get discovery started and get this litigation

23 back on the track is appropriate, and I would suggest

24 immediately after the new year to get the schedule

25 going.

1 I think, too, that we can set an early trial

2 date to begin one phase of the litigation. I think

3 you were saying very persuasively that the attack here

4 is mainly on assumptions that underlie the SWIM plan,

5 and a primary attach it seems to me needs to be

6 against the proposition that the Everglades are being

7 damaged by nutrients in agricultural runoff.

8 It would be very logical to me to simply say that

9 as of April 15th we will start phase one of the trial

10 on the industry's claim that that assumption is

11 erroneous and put off the other issues until later.

12 I think if there were an adjudication of their

13 claim that their runoff is not causing damage to the

14 Everglades and you saw the cards on the table, I think

15 that would substantially expedite our process, not just

16 the litigation, but the possibility of a future

17 settlement.

18 So I think the time for delay is over, and it's

19 time to simply get this litigation back on track,

20 comply with the statutes. It said this be done

21 expeditiously. Set a trail schedule, and set a

22 discovery schedule now.

23 HEARING OFFICER: Okay. All right. Mr. Hyde is

24 waving at me. I think he wanted to have something to

25 say. Go ahead.

1 MR. WILLIAM L. HYDE: Okay. Just very briefly

2 I think there's a couple of points that need to be

3 made here.

4 When we first talked about possibly segmenting a

5 portion here, we were talking about segmenting

6 a unified adopted plan. Segmenting it now will not

7 further the judicial purposes, because you are in

8 effect talking about having a hearing on causation on

9 one plan and then a hearing on remedies in a second

10 plan. I don't think that's a very wise or expeditious

11 way to resolve things in accordance with the

12 statutory mandates.

13 HEARING OFFICER: Well, why not? I mean, I don't

14 understand why we can't segregate out the first, the

15 first thing of those issues that go to the fundamental

16 assumptions that lead to adoption of the SWIM plan,

17 and then try to address whether the strategies are going

18 to work or whether the strategies affect the problems

19 identified in the assumptions.

20 MR. HYDE: Well, first of all I would respond by

21 saying that you are going to have an incredible

22 duplication of witnesses and evidence, going to those

23 issues.

24 It's hard to sit there and say on the one hand

25 we don't need causation, and on the other hand you are

1 going to remedy it, because they really do mix, and

2 it's hard to separate them into constituent elements

3 and say one particular bit of evidence or one particular

4 type of witness is going to be serving one particular

5 area.

6 HEARING OFFICER: Well, Mr. Hyde, I mean, this

7 hearing is not going to be easy in any way, shape, or

8 form, and I think what we have to do is try to find a

9 way that will make it most manageable, and that seems to

10 me to be a possible way to address some of the

11 complexities that are involved.

12 MR. HYDE: Well, I do think there are a couple of

13 other points to consider. We do have, there are in

14 your Division and rules and elsewhere express authority

15 for consolidation of proceedings, and to my knowledge

16 there is not any authority to bifurcate proceedings,

17 and I think that you have to be mindful also of the

18 Douglas Act mandate that all Section 120.57 proceedings

19 to the extent practicable must be joined in a single

20 proceeding, and I would suggest to you that splitting

21 this proceeding into tow or more elements at this point

22 especially when you are talking about two different

23 plans is contrary to that authority.

24 We also I think need to be mindful of the general

25 principle that the petitioners set the issues, and DOAH

1 rules have always allowed petitioners to define the

2 scope of the challenge, and we in effect define these

3 regarding a plan, which may well now be moot in a

4 significant part, and to redefine the issues into

5 smaller proceedings would deprive all the petitioners

6 of the right to define the substance of their

7 challenge.

8 And I do think as I noted earlier, I do think the

9 remedies are tied to the issues of the existence and

10 cause of the water quality violations, and I really

11 don't see how one can practically segregate those

12 apart from one another.

13 In terms of hearing complaints about the

14 delays that have been attendant in the negotiating

15 process will be, well, you have certainly heard from

16 the Hearing Office, who said that these were negotiated

17 hard and in good faith, and I think we all agree

18 it's unfortunate, the mediator, that it's unfortunate

19 that we didn't reach the result we had hoped we would

20 reach, that we all expected that we would reach at

21 the commencement, but the people who have been complaining

22 loudly, loudest about the delay haven't been doing

23 anything. They haven't noticed depositions. They

24 haven't attended depositions. They haven't done

25 anything like that.

1 HEARING OFFICER: There was a stay.

2 MR. HYDE: No, even before that, even before the

3 stay they didn't do that. That's another thing to keep

4 in mind.

5 It's one thing if someone has been working hard to

6 advance the cause by attending scheduling conferences

7 with other attorneys, by setting notices of depositions,

8 by deposing witnesses, by setting out interrogatories

9 and other appropriate discovery, but the people that

10 have complained the loudest thus far have done

11 virtually nothing.

12 MR. GUEST: Mr. Hearing Officer, may I respond to

13 those points?

14 HEARING OFFICER: I'll give you all a chance.

15 Let him finish. Are you done, Mr. Hyde?

16 MR. HYDE: For the time being.

17 MR. GUEST: Let me say, Mr. Hearing Officer, the

18 most important point is I don't think there's any

19 possibility that the Water Management District is

20 going to revisit any assumption s that underlie their

21 position on the SWIM plan.

22 I think there are possible amendments they may

23 make to the SWIM plan, but the proposition that the

24 Everglades are being as we speak destroyed by

25 agricultural runoff from the nutrients in them

1 is not going to change. That is the reason to

2 bifurcate the hearing, to cover the points at issue

3 about the assumptions first and get discovery going

4 on that.

5 The second thing is Mr. Hyde's point about

6 participation in discovery, our view is that most of

7 the witnesses and most of the depositions are simply

8 smokescreens, and that this case can and should be

9 expedited with a tiny fraction of the number of

10 witnesses they've got listed.

11 This is not nearly as complex a case as they have

12 attempted to make it out.

13 HEARING OFFICER: Mr. Cole, I didn't mean to

14 skip over you. Did you have anything you wanted to

15 add?

16 MR. COLE: Yes, I did, Your Honor. Just a couple

17 of points.

18 First, I'd like to express, I think all the

19 parties that participated, thanks to Mr. Cormick for

20 his efforts, that if we were not successful it was not

21 due to his lack of effort in trying to do it.

22 I think that we all appreciated what he did and

23 his calmness in going through the process, and that's

24 the first point.

25 The second was that in regard to some of the

1 allegations raised by Mr. Guest, we believe there are

2 going to be significant factual differences due to the

3 passage of time and the gaining of new information,

4 and it's not just going to be a question of a change in

5 remedies, but there's been a change in the available

6 information.

7 And it is going to take an assessment of that by

8 the parties, and it's going to take some time to do it.

9 We do not object to the delay in time requested by

10 the District and the Department.

11 The other point I wanted to make is there is also

12 tied into this not just the SWIM plan, but we also

13 have the question of the proposed issuance by the

14 Department of Environmental Protection of a permit to

15 the District, and we need to know how that permit is

16 going to be affected by any changes that may take place

17 due to the Governing Board's consideration of this.

18 So we believe that a brief delay is warranted

19 while it is reassessed, and really my only question is

20 if we don't find out until the day before the hearing

21 on how major a change, if any, will take place,

22 will we have time to do it?

23 We will do our part in trying to make sure we are

24 prepared at the date you select, but one day is not a

25 lot of time to respond if they propose a major change

1 in the proposal relating to the SWIM plan or DEP and

2 its permit in responding to what the District decides.

3 HEARING OFFICER: Okay. Mr. Lehtinen?

4 MR. LEHTINEN: Yes, Your Honor. I realize that

5 discovery would not start immediately. Obviously the

6 parties have to schedule it and see where their

7 witnesses are and so forth, but that reality would not

8 result in a need for the, for you as Hearing Officer to

9 enter a stay of discovery.

10 In fact, it should go the other way around. They

11 should expeditiously set what discovery they think they

12 need, and if there are discovery disputes they

13 should come to you.

14 I do not think the fact that you won't take

15 depositions next week in reality means that you

16 should stay the depositions. In fact, to ask for you

17 to stay discovery shows a state of mind on somebody's

18 part that discovery could go forward but for your

19 stay order.

20 So I would just say there's no role for a stay

21 of discovery. The parties should just work to undertake

22 discovery as soon as possible.

23 I think you can set on another issue a hearing

24 date in early April. I don't think the parties need to

25 agree on that. Three months of discovery should be

1 sufficient.

2 I do think there is authority for you to actually

3 severely limit discovery. It has been upheld to

4 limit the number of interrogatories and depositions.

5 You could set a preliminary number, like 25 depositions

6 per side, which is permissible and meets due process,

7 because they are permitted to come to you and say,

8 "We need additional depositions," for some good reason,

9 but what's happened now is that they just list every

10 Tom, Dick, and Harry, and you get to these massive

11 numbers, and I really think that if you could issue

12 a limitation on the number of depositions without

13 your permission and then require parties who want more

14 than 25 depositions to make a showing as to why they

15 need that and why they can't get along with what they

16 had.

17 I think the stay is really being asked for for a

18 reason other than discovery. It's talked about a as a

19 stay of discovery, but it's also mentioned as a stay

20 to find out what the Governing Board is going to do.

21 Not being in the loop, being one of those parties

22 that did not believe in the mediation, and of course

23 the reason there's unanimity with the value of

24 mediation is because those by definition who do not

25 agree are not counted, in the base figures. So just

1 for the record you recall that the Miccosukee Tribe

2 as well as I believe some other parties, at least the

3 Miccosukees, did oppose that.

4 But that being water over the damn, I don't know

5 what messages or secret messages or what else leads to

6 the conclusion that the action of the Governing Board

7 which is in front of you is going to change or how it's

8 going to change.

9 I think our legal obligation is to take the action

10 before the Governing Board, that is to say for you

11 from the Governing Board and treat it as the action.

12 There is no other legal instructions that I know if,

13 and under the meetings that have ever been held pursuant

14 to law that have resulted in instructions from the

15 Governing Board to tell their lawyers to tell the

16 Hearing Officer that what they passed previously is

17 going to be withdrawn.

18 I think the reason this is important to

19 understand is that, A, we can legally recognize

20 a change the Governing Board makes only when they

21 make it, not in advance of when they make it, so prior

22 to that time it's the Governing Board by a majority

23 vote, and there's no grounds for guessing that public

24 body will result in other delays.

25 If they do adopt changes, I agree with what was said

1 by David Guest and others, the changes which are

2 adopted then should be evaluated, and in most cases

3 it will be seen they are not fundamental changes on

4 most of the issues that the petitioners put into

5 issues. That is to say such as causality and so

6 forth and so on. At the time it will be seen to be

7 the same as it is now, but what I really am saying is

8 it's not appropriate to guess now whether the issues

9 will remain the same.

10 They fundamentally will, but since we have no

11 legal right to secondguess the Governing Board's

12 future action it's better to just as a matter of law

13 not guess what they're going to do, and I'm quite

14 confident as a matter of fact that when and if they

15 make any changes they will not be those, they will not be

16 the fundamental changes that challenge most of the,

17 most of the nature of the discovery and so forth and so

18 on like that.

19 In fact, most of the discovery would not occur

20 until after January 13th anyway. It is the holidays.

21 I don't believe a stay is appropriate, but they will

22 be working to set their discovery schedules together

23 and not do most of it until after January 13th.

24 So I think the issue of a stay is just some way

25 to keep the consequences of having filed a petition on

1 the one hand or passed the SWIM plan that would be

2 challenged by a petition from the others from being

3 legally recognized now, and the only real choice is

4 to legally recognize them now.

5 I might also add, being one of those parties who

6 might be classified as being vocal that what's really

7 the case is that those who schedule all these

8 depositions and show up at all these things an

9 easily be argued as being the ones obfuscating. The

10 fact is I agree that most f these depositions are not

11 needed, and we don't charge the client for going, and

12 I think that's just a choice we make.

13 But the main point would be this. You don't gain

14 and lose your rights by whether or not you can afford or

15 go to a deposition, and we will not permit other parties

16 to define the nature of rights in the American legal

17 system because they've got a lot of money to set

18 150 depositions.

19 The Miccosukee Tribe may show up, or it may not

20 show up, but it doesn't make any difference to the

21 rights of that tribe whether it wants to go to a

22 deposition thinking it's fruitful or not go to the

23 deposition because we classify it as nothing more than

24 a delaying tactic.

25 HEARING OFFICER: Okay, Mr. Lehtinen, we don't need

1 to get into anything at this point...

2 MR. LEHTINEN: well, you know, Judge, it seems to

3 me when they point fingers there's no problem with

4 it. Now I don't understand why I don't have the time

5 to respond.

6 HEARING OFFICER: I gave you a chance to respond

7 to this point. I think at this point we are taking it

8 further than we need to go.

9 I gave you full opportunity to respond. I don't

10 think that's the purpose of the hearing today. I don't

11 think that's the way we want to go.

12 I had raised issues earlier regarding the

13 possibility of trying to break this hearing down

14 a little bit, and that came during Mr Green's presentation.

15 I don't know if any of the government entities wanted

16 to respond to any of those issues.

17 MS. PONZOLI: Mr. Hearing Officer, this is

18 Suzan Ponzoli, and I'm a small but vocal member of a

19 fairly large team.

20 I can't speak definitively, because I do need to

21 speak with my team, but my initial reaction to your

22 suggestion is very positive, that that might be a way

23 of expediting, getting on with this, and moving on,

24 let's just look at the causation, the assumptions of the

25 problem, and do that more rapidly than we look at a

1 remedy or a strategy for resolving the problem.

2 So I guess that's sort of a qualified, "Yes, I think

3 my initial reaction as one member of a large team

4 is that sounds like a good way of going forward."

5 As far as going forward, though, I do think that

6 I need to tell you I don't think any of the parties

7 who are really vocally advocating that we not enter

8 another stay until the 14th would question that the

9 Untied States has been the most vigorous party pushing

10 to get relief for the Everglades from a very long

11 period of time now, but I do have critical experts

12 who will need to present affirmatively on the

13 problem, the causation, and defend against other

14 positions, and I do want it to be very clear, Mr. Hearing

15 Officer, that I need this time to get my witnesses

16 together, to get my schedule for hearing back up to

17 litigation.

18 I personally, and quite frankly all of the active

19 members of my federal team have spent enormous

20 efforts into the settlement process. We have not

21 been looking at litigation. We haven't pulled out any

22 of those materials.

23 We are coming off of a very intense effort, and

24 we are gong into a very intense effort. We need a

25 little time to switch gears.

1 And I would say that I am interested in the

2 bifurcation, but I would still want time to put the

3 discovery together, the schedule together before we

4 go back to discovery.

5 HEARING OFFICER: Okay. Mr. Nettleton or Mr.

6 Killinger, either one? Do you have any comments?

7 MR. NETTLETON: yes, Mr. Hearing Officer. This is

8 Paul Nettleton on behalf of the District.

9 I like Ms. Ponzoli can't speak definitively,

10 because we haven't addressed this internally in

11 detail, but we certainly would not want to close the

12 door on a possible segmentation of the hearing if that

13 would move this along and if it is permissible and

14 workable in a reasonable fashion.

15 That may be something that we could report back

16 at the next hearing after we've had some time to

17 discuss it internally and also between the parties.

18 So in that sense I would say, you know, we can

19 look at that issue favorably.

20 I would like to say also as far as the stay issue,

21 it sounds like what Mr. Guest and Mr. Lehtinen said,

22 they understand that essentially we're going to be

23 in a delay process getting this thing up and running

24 anyway, but there's no reason to impose a formal stay,

25 because no one is going to be really doing anything for

1 the next 30 days or four weeks or so.

2 I would submit that there is some feeling that

3 a formal stay in this proceeding, some people may feel

4 compelled to start the discovery in order to avoid any

5 prejudice in the long run if the stay is not in

6 place, and for that reason we think a stay is

7 necessary here along with the reasons advanced by

8 Ms. Ponzoli, so we would again be in favor of that.

9 The last thing I'd just like to say, as Mr. Green

10 made the comments gain that the Board has not made

11 its decision yet, and I think what Mr. Lehtinen said is

12 correct. The decision was made here a year and a

13 half ago. There is a SWIM plan in place.

14 What has been brought up through this process

15 which has been requested of us to go back to the Board

16 with is whether through the process and through the

17 knowledge that's been gained over the last year and a

18 half they have any indication of whether they want to

19 change their mind on this.

20 So I don't think we're talking about something

21 that's not challengeable to a point. It is in place.

22 HEARING OFFICER: Okay. Mr. Killinger, do you

23 have anything to add?

24 MR. KILLINGER: I'd like to just sort of second

25 Mr. Nettleton's comments about perhaps needing to do

1 some actual research and look into the procedure and

2 the legal elements of bifurcating or having the first

3 portion of the hearing and then continue it for the

4 second portion.

5 I think a number of parties have raised questions

6 about how that becomes a workable thing to do under

7 120,l whether or not you can get a recommended final

8 order on the initial portion of it and how you go about

9 doing that.

10 I know I have not had the time to research the

11 issue. I didn't know if anybody else has in light of

12 this, but I think it might be appropriate for us all

13 to look at that and then make some recommendations to

14 you at some point in the future.

15 I'm not sure if you want to do that at the next

16 hearing or prior to that or what, but I think it's an

17 idea worth exploring, and it needs some research.

18 HEARING OFFICER: Yeah. I haven't thought it

19 through completely, and I think Mr. Hyde raised some

20 legitimate concerns as to how it would be done.

21 I think there are probably a couple different

22 ways of doing it. One would be simply to convene the

23 hearing, start and address those issues that are ripe

24 and ready to be addressed, and then if we have to

25 adjourn the hearing in order to let everybody for a

1 couple of weeks get prepared for the second round,

2 then we're going to do it.

3 I think if this thing goes to hearing in its

4 full form we're looking at a very long hearing, and I

5 don't intend, I don't think anybody would be, I don't

6 think I would be capable of starting on day one and

7 going through the completion.

8 So we're going to have to break it up to some

9 degree. I think the easiest way to do it is obviously

10 to try to break it into some cognizable segments

11 that make some sense.

12 Any other comments that people wanted to voice

13 before we put this thing to bed today?

14 MR. LEHTINEN: Judge, this is Dexter Lehtinen.

15 I would just add that in some ways the difference as

16 has been pointed out, the difference between a stay of

17 discovery and not a stay of discovery may be, may not be

18 great.

19 My only concern with a stay of discovery is

20 that at the end of it that not be the time at which

21 the parties begin to discuss the discovery.

22 It a stay of discovery meant that the depositions,

23 a deposition wasn't held until January 15th, that's not

24 as bad as what it may go into.

25 The reason I would rather not see a stay is that

1 without a stay they can set the schedules and the

2 have a deposition January 15th, but with a stay, human

3 beings being what it is, not malfeasance, but thinking

4 being what it is it won't be until the 14th perhaps

5 at the end of that stay that the work really begins to

6 do the scheduling.

7 With regard to a hearing ate, I'd rather see you

8 set a hearing date now that has the reasonable amount

9 of time for discovery, like three months, with the

10 possibility that you have to set it off when parties

11 can show prejudice from a lack of enough time for

12 discovery, but that's I think a much better way to go,

13 plus a limit on the number of depositions subject to

14 change when the parties show they needed it for

15 legitimate due process discovery.

16 So I would recommend that the hearing date be set

17 and a limit on deposition be set, and those matters

18 to be started as the requirements of discovery require.

19 MR. EARL: Mr. Hearing Officer, this is Bill Earl.

20 I would urge you allow the parties to meet. I think

21 as complicated as this case has been, as fractured as

22 discovery has been, I think all those who have

23 actively participated in the oral counsel meetings and

24 the scheduling conferences prior to hearing with you,

25 the scheduling conferences we have had for several days

1 at a time, will agree that we don't always agree but we

2 are able to set up a workable schedule that has in

3 fact resulted in a litigation procedure for

4 expedition of the process.

5 I would suggest to you that counsel be authorized

6 to meet during the course of the stay, and that our

7 attention be directed to a discovery schedule, number

8 one.

9 Number two, a proposed hearing date based on new

10 issues, a discovery schedule based on the new issues that

11 all of which you have not heard of but have emerged in

12 the last month or two, and also that we provide you our

13 thinking and our recommendations on bifurcation, the

14 bifurcation process.

15 Again the counsel that have worked at it have

16 from all sides, the respondents and the petitioners,

17 have I think done a good job. I would urge this

18 time Mr. Guest and Mr. lehtinen join us in that

19 process, so we would have, we would have at least

20 sorted out before we get to you with out report and

21 recommendations all of the positions and hopefully have

22 reached a consensus on most of them.

23 HEARING OFFICER: Well, Mr. Earl, I agree with

24 you. I think in the past there has been an amazing

25 amount of cooperation that has been very useful in terms

1 of trying to make this as workable as possible.

2 I hope the failure of the mediation efforts will

3 not change that, and I expect that it won't, and I

4 certainly hope you see to it that it doesn't.

5 I'd like to set up two separate hearing dates, one

6 for January 7th and another for January 14th.

7 By January 7th I would like the parties to have

8 given some thoughts to the bifurcation issue.

9 In particular where my thought are at this time,

10 and I will reserve a final decision on this, is I think

11 that I would like to get us in a posture to begin on the

12 causation issues sometime in early April, and I'm

13 willing to listen to the concerns of the parties

14 regarding the bifurcation an dhow it would work and

15 try to come up with an approach that is going to meet

16 everybody's concerns.

17 We are just going to have to get this thing

18 underway, and I think we need to have a date in mind.

19 I don't have a calendar in front of me. We can

20 set that as January 7th.

21 My intent right now is to try to get in a posture

22 to begin at least the causation issue in the early

23 part of April.

24 So I would like the parties' comments on that issue,

25 and we can discuss it further on January 7th.

1 I would also like to have an attempt to try to

2 come up with a discovery schedule available by

3 January 7th. We can discuss discovery situation at

4 that hearing on January 7th.

5 With respect to the request from Mr. Lehtinen to

6 limit depositions, at this point I'm not going to

7 attempt to impose a limit. I would like to have

8 the parties determine what they believe is necessary

9 in terms of depositions. If it looks like it's not going

10 to be workable, we may have to come up with a limit.

11 We can discuss that further on January 7th.

12 The January 14th date, I'm going to hold it open,

13 since that is the day after the District meeting. We

14 will just have to see where we stand on that after

15 the January 7th meeting, and if there are any changes

16 to the plan or intent to change the plan voiced after

17 January 13th we can take those up on January 14th and

18 figure out what we need to do.

19 So that hearing on the 14th will be to address

20 changes that may occur as a result of the Board

21 meeting. Okay, I think that will take care of the

22 issues we need to resolve today.

23 I have a note from the court reporter who asked

24 me to inquire whether anyone needs expedited

25 transcript, or if regular delivery is okay. I guess

1 Mr. Earl, Mr. Hyde, Mr. Green, and Ms. Ponzoli,

2 it's directed at you.

3 MR. GREEN: This is Bill Green. Normal delivery

4 is fine with us.

5 MS. PONZOLI: Normal delivery will be fine for

6 the United States.

7 MR. HYDE: (Shaking head.)

8 MR. EARL: Judge, Bill Earl, Mr. Menton. Is it

9 my understanding you are or are not going to enter a

10 stay?

11 HEARING OFFICER: In terms of the discovery I don't

12 want to see any depositions or any formal discovery

13 undertaken until after January 14th.

14 MR. EARL: Thank you.

15 MR. LEHTINEN: Judge, this is Dexter Lehtinen.

16 Mechanically were those hearings on the 7th and the

17 14th at two o'clock, or did you want to pick a time

18 later?

19 HEARING OFFICER: Why don't we set them for nine

20 o'clock on the 7th? Nine o'clock on the 7th. I will

21 be here in Tallahassee, and we can set anybody up by

22 telephone we need to, and anybody who wants to be here

23 in person can also be here, and then we can schedule

24 the 14th when we get there to figure out what we need

25 to do.

1 MR. NETTLETON: Mr. Hearing Officer, just for

2 scheduling purposes, if people are going to show up

3 up there, and I don't know what everybody's thinking

4 is, but getting in there from Miami at nine o'clock

5 would be difficult. If it could be 10 if we're

6 going to appear in person. I just don't know how it

7 will be set up at this point.

8 HEARING OFFICER: Okay, 10 o'clock is fine.

9 MR. COLE: That's 10 o'clock on the 14th?

10 HEARING OFFICER: On the 7th.

11 MR. COLE: On the 7th.

12 HEARING OFFICER: Any other issues that we

13 need to resolve today?

14 MR. COLE: Just one other minor point, Mr. Hearing

15 Officer.

16 If there's a hearing of the Governing Board and

17 counsel are down there, if there's a need to do it

18 in person and in case the hearing goes late with the

19 Governing Board, which is not all that uncommon, we

20 might need that one set a little alter, so that

21 counsel are up here if necessary.

22 HEARING OFFICER: Are you talking about the

23 14th now?

24 MR. COLE: Yes, sir.

25 HEARING OFFICER: Okay. Yeah, we can set the time

1 for the one on the 14th on January 7th. We can figure

2 that out, whether we even in fact need to have one.

3 We will take that up on the 7th. I'll keep that in

4 mind.

5 Okay. I think that will do it for today. Thank

6 you.

7 (WHEREUPON, THE HEARING WAS CONCLUDED AT 2:58 P.M.)

1 * * * * *

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 __, 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 22nd DAY OF DECEMBER, 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 22nd day of December, 1993, by SUE HABERSHAW

JOHNSON, who is personally known to me.

24 CHRISTINE WHEELER

Notary #AA711091