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

DATE: FRIDAY, JANUARY 7, 1994

20 (10:00 A.M. - 1:02 P.M.)

21 LOCATION: HEARING ROOM 2, DESOTO BUILDING

1230 APALACHEE PARKWAY

22 TALLAHASSEE, FLORIDA

23 REPORTED BY: SUE HABERSHAW JOHNSON

CERTIFIED COURT REPORTER

24 REGISTERED PROFESSIONAL REPORTER

NOTARY PUBLIC

1 APPEARANCES:

2 Representing Petitioners, Sugar Cane Growers

Cooperative of Florida, Roth Farms, Inc.,

3 and Wedgworth Farms, Inc.:

4 WILLIAM H. GREEN, ESQUIRE

GARY PERKO, ESQUIRE

5 CAROLYN RAEPPLE, ESQUIRE

ROBERT P. SMITH, ESQUIRE (Via Telephone)

6 Hopping, Boyd, Green & Sams

123 South Calhoun Street

7 P. O. Box 6526

Tallahassee, Florida 32314

8 (904-222-7500)

9 Representing Petitioners, Florida Sugar Cane

League, Inc., United States Sugar Corporation,

10 and New Hope South, Inc.:

11 RICK J. BURGESS, ESQUIRE

WILLIAM L. EARL, ESQUIRE

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

Peeples, Earl & Blank, P.A.

17 Suite 350

215 South Monroe Street

18 Tallahassee, Florida 32301

(904-681-1900)

Representing Petitioners, Florida Fruit and

20 Vegetable Association, Lewis Pope Farms,

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

21 Hundley Farms, Inc.:

22 KENNETH F. HOFFMAN, ESQUIRE

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

23 Suite C

2700 Blair Stone Road

24 Tallahassee, Florida 32301

(904-877-0099)

1 APPEARANCES, CONTINUED:

2 Representing Intervenor, The United States

of America:

SUZAN HILL PONZOLI, ESQUIRE

4 THOMAS A. WATTS FITZGERALD, ESQUIRE

Assistant United States Attorney

5 Southern District of Florida

Third Floor

6 99 East 4th Street

Miami, Florida 33138

7 (305-536-4425)

8 -and-

9 MIKE REED, ESQUIRE (Via Telephone)

STEVE MC FARLAND, ESQUIRE (Via Telephone)

10 Deputy Assistant Attorney General

United States Department of Justice

11 Environmental & Natural Resources Division

General Litigation Section

12 Room 879, 601 Pennsylvania Avenue

Washington, D.C. 20044

13 (202-272-4016)

14 Representing Intervenor, Florida Department of

Environmental Protection:

LEE M. KILLINGER, ESQUIRE

16 Assistant General Counsel

Department of Environmental Regulation

17 640 Twin Towers Office Building

2600 Blair Stone Road

18 Tallahassee, Florida 32399-2400

(904-488-9730)

Representing Respondent, South Florida Water

20 Management District:

21 PAUL L. NETTLETON, ESQUIRE

R. BENJAMINE REID, ESQUIRE

22 Schnobrick & Kaufman, Ltd.

400 International Place

23 100 Southeast Second Street

Miami, Florida 33131

24 (305-539-7222)

25 -and-

1 APPEARANCES, CONTINUED:

2 Representing Respondent, South Florida Water

Management District: (Continued)

RUTH P. CLEMENTS, ESQUIRE (Via Telephone)

4 VALERIE BOYD (Via Telephone)

Assistant General Counsel

5 South Florida Water Management District

P.O. Box 24680

6 3301 Gun Club Road

West Palm Beach, Florida 33416-4680

7 (407-686-8800)

8 Representing Intervenor, Miccosukee Tribe of

Indians:

DEXTER W. LEHTINEN, ESQUIRE (Via Telephone)

10 Spencer and Klein, P.A.

801 Brickell Avenue, Suite 1901

11 Miami, Florida 33131

(305-374-7700)

Representing Intervenor, Florida Wildlife

13 Federation:

14 DAVID G. GUEST, ESQUIRE

LORI ERICKSON, ESQUIRE

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

P.O. Box 1329

16 Tallahassee, Florida 32302

(904-681-0031)

* * * * *

ALSO PRESENT:

JEFFREY J. WARD (Via Telephone)

20 GEORGE WEDGWORTH (Via Telephone)

OTIS WRAGG

* * * * *

1 INDEX

2 ITEM PAGE

3 HEARING COMMENCED . . . . . . . . . . . . . . . . . . 5

4 HEARING CONCLUDED . . . . . . . . . . . . . . . . . . 114

5 CERTIFICATE OF REPORTER . . . . . . . . . . . . . . .115

6 * * * * *

1 PROCEEDINGS

2 (WHEREUPON, THE HEARING COMMENCED AT 10:00 A.M., AT

3 WHICH TIME MS. CLEMENTS, MR. HOFFMAN, MR. MC FARLAND,

4 MR. WARD, MR. SMITH, AND MR. WEDGWORTH WERE ABSENT.)

5 HEARING OFFICER: Is everybody here? Let's take a

6 roll call of who is here. If they are not on the phone

7 by then, we can do that. Petitioners? We'll begin with

8 the Cooperative.

9 MR. GREEN: Yes, Mr. Menton, Bill Green, Carolyn

10 Raepple, and Gary Perko here, and we believe Bob Smith

11 will join on the telephone conference.

12 HEARING OFFICER: And the League?

13 MR. EARL: Bill Earl and Bill Hyde, representing

14 the Sugar Cane League.

15 HEARING OFFICER: Okay, Fruit and Vegetable?

16 MR. EARL: Mr. Hoffman indicated he was coming.

17 HEARING OFFICER: He had called my office on the

18 time, so I expect he will be here soon.

19 Okay, South Florida Water Management District?

20 MR. REID: Ben Reid and Paul Nettleton.

21 HEARING OFFICER: Okay. And for the U. S.

22 Government?

23 MS. PONZOLI: I am Suzan Hill Ponzoli, and Tom

24 Watts Fitzgerald, also known as Fitzpatrick.

25 HEARING OFFICER: For the Florida Department of

1 Environmental Protection?

2 MR. KILLINGER: Lee Killinger.

3 HEARING OFFICER: For the conservation group?

4 MR. GUEST: David Guest and Lori Erickson.

5 HEARING OFFICER: Okay, the Miccosukee Indians?

6 Did I miss anybody? I think that is all the

7 parties.

8 MR. KILLINGER: Mr. Hearing Officer, the assistant

9 to Mr. Lehtinen advised us he would be participating by

10 phone, so he is probably trying to call in.

11 HEARING OFFICER: Okay. Maybe what I'd better do

12 is make sure they understand to route them down this

13 way. Let's take a short break.

14 If the phone rings all you have to do is hit this

15 conference button up here, right here, and then they are

16 on. Let's take a short break.

17 (WHEREUPON, THE HEARING WAS RECESSED FROM

18 10:02 A.M. TO 10:04 A.M., AT WHICH TIME MR. SMITH AND

19 MR. WEDGWORTH WERE PRESENT.)

20 TELEPHONE OPERATOR: Bob Smith?

21 HEARING OFFICER: Is Mr. Smith on?

22 MR. SMITH: Yes.

23 TELEPHONE OPERATOR: Dexter Lehtinen?

24 MR. LEHTINEN: I am here.

25 TELEPHONE OPERATOR: Thank you. And Mr. Wedgworth?

1 MR. WEDGWORTH: Yes.

2 TELEPHONE OPERATOR: Our number is 1-800-232-1234,

3 and the I.D. number is W as in "William", R as in

4 "Robert", 37297.

5 HEARING OFFICER: Operator, I am not sure that I

6 heard Mr. Smith. Is he on line?

7 MR. SMITH: I am here. Thank you.

8 HEARING OFFICER: Okay.

9 (WHEREUPON, MR. HOFFMAN ENTERED THE HEARING ROOM.)

10 HEARING OFFICER: Okay.

11 TELEPHONE OPERATOR: Okay?

12 HEARING OFFICER: Okay. Thank you.

13 TELEPHONE OPERATOR: Thank you for using AT&T.

14 HEARING OFFICER: Okay. For those of us who just

15 joined us by telephone conference, we are just beginning

16 the hearing now. Mr. Hoffman is also here on behalf of

17 the Fruit and Vegetable Growers.

18 Let me start out by trying to summarize the reason

19 why I think we are here today or at least the reason why

20 I set this hearing, and then we can kind of take it from

21 there.

22 The main reason that I wanted to set the hearing

23 today was to try to explore a little bit further some of

24 the issues that I raised at the last hearing we had

25 about the possibility of segmenting the final hearing in

1 this case.

2 I know that I raised those issues somewhat out of

3 the blue. Most of you were in a mediation mode at that

4 point and had not gotten back into the litigation mode.

5 But those are issues that I have been thinking

6 about in terms of the final hearing from the time that

7 we had originally begun in litigation, and I thought

8 that it was appropriate to raise them and begin

9 discussing them if we are back in full litigation, which

10 it appears we are.

11 I think that it is important to resolve some of

12 those issues up front, because they impact significantly

13 upon the discovery and also upon general scheduling

14 issues, so it thought it was important to come to some

15 resolution and to some understanding between everybody,

16 so that we can plan this discovery schedule and plan the

17 final hearing accordingly.

18 So before the discovery schedule got set in stone I

19 thought it was important to get this issue discussed to

20 give everybody an opportunity to reflect on it and get

21 their thoughts together and see if we can discuss it a

22 little bit more.

23 I have received yesterday afternoon an objection

24 that was filed by the Cooperative to hearing

25 bifurcation, and I have also received from the League

1 creatively styled as a memorandum in support of an

2 expedited and unified hearing, and I have been through

3 both of those documents.

4 Those are the only two I have received from the

5 last hearing.

6 I think that they raised some legitimate points

7 that should be discussed.

8 I don't think we really need to go back through the

9 specifics of what those are, but I have been through

10 them, and I understand the points raised.

11 Let me make a couple of points at the outset before

12 I give everybody an opportunity to have their input.

13 First of all, I understand that both the

14 Cooperative and the League have raised some questions as

15 to the authority, my authority to bifurcate segments the

16 hearing, and, you know, I understand those concerns. I

17 don't agree with those.

18 I think the rules of the Division of Administrative

19 Hearings, in particular Rule 60Q-2.024, specifically

20 gives me discretion to do what I think is necessary in

21 order to bring this case to a just decision and an

22 efficient resolution of the matter.

23 So the idea of segmenting or breaking up the

24 hearing into different parts is nothing new. I have

25 done it in several other cases in the past, and it is

1 used frequently, so in terms of the general authority

2 issue I think that that is simply a matter of trying to

3 handle the case the way that I see best.

4 I have used a segmentation or breaking down of a

5 case in several different matters, and I have done it

6 several different ways.

7 I have done it where I have done separate

8 recommended orders on particular issues when they were

9 very clearly isolated and could be broken down that way,

10 and I have done it where we have taken adjournments

11 during the hearing in order to allow parties further

12 preparation time or discovery time or whatever is

13 necessary and then reconvened the hearing and ending up

14 with one unified recommended order.

15 It can be done any number of ways. I am certainly

16 willing to listen to the concerns of all the parties as

17 to what they think is appropriate.

18 I think that as I indicated before from the very

19 time that I first got involved in the case I have always

20 been somewhat in awe of the complexity of the issues

21 that are involved, and it has always concerned me as to

22 how I would be able to conduct a hearing and assimilate

23 the information that will be thrown out during the

24 hearing.

25 For most of the attorneys that are involved, you

1 have been working on this case for five years and on a

2 full-time basis, and by the contrary I think my

3 involvement is by necessity much more limited. This is

4 simply one of about 80 other cases that I am handling,

5 and as we get into the hearing mode I will have to get

6 rid of some other cases that I have and focus solely on

7 this, and I have discussed this with the internal

8 parties, and I think that can be done.

9 But, you know, one of the strengths of the process

10 we have in this kind of thing is you have an independent

11 Hearing Officer. One of the weaknesses is you have a

12 Hearing Officer who has not been involved to the same

13 extent that you have, so there will be a learning curve

14 by the time we finally get to hearing.

15 Over the last two years obviously I have learned a

16 lot about the case, both through the SWIM plan and the

17 exhibits, and I have heard some evidence on various

18 issues that have come up, so I have some grasp of some

19 of the concepts, but there is going to be a large

20 learning curve, and I think just from my own perspective

21 in terms of trying to figure out to best handle this

22 case I am going to need some time during the hearing

23 process to begin to go through exhibits as they come in,

24 to begin to understand some of the scientific issues

25 that are clear, and to just digest a lot of the things

1 that I know you will be throwing at me.

2 Again that's one of the weaknesses of the system,

3 but in some ways it is probably one of the strengths,

4 too. So that is just by its very nature inevitable.

5 Certainly in a case of this magnitude I don't know

6 any other way around it except to build in some time in

7 there in order to let my brain cool off and try and

8 figure out what you all are giving to me and also to

9 give the attorneys an opportunity to regather their

10 thoughts, etcetera.

11 In that regard I think I have heard a lot of

12 different things since the beginning of the case as to

13 what the ultimate hearing will entail. I have heard

14 estimates from 20 weeks to eight weeks, and I don't know

15 where the truth is, and I don't know whether anybody

16 knows, and that's one of the things we probably should

17 get a better feel on today, is to what are we

18 realistically looking at in terms of the final hearing.

19 I think that some of the concerns that were raised

20 by both the League and the Cooperative, while they are

21 legitimate concerns, I don't really feel that there is a

22 sufficient basis for not segmenting the hearing or

23 breaking it down.

24 In particular the League I think at one point

25 raised the issue that may be precluded by collateral

1 estoppel or allow the case to rest on issues in

2 subsequent hearing of remedies.

3 That is not going to happen if we are clear about

4 how we are segmenting the case. I will not preclude

5 anybody simply because you could have raised it during

6 the last hearing, I'm just not going to run it that way,

7 and similarly I think the Coop had raised the issue that

8 the bifurcation implied the fact finding as by law with

9 a jury would prevail in the first hearing, and law and

10 policy would apply in the second. Well, that's not what

11 I am intending to do at all. I do not intend to break

12 it down quite that clearly.

13 I think the Cooperative also raised the issue that

14 you could not address any question of causation until

15 you elaborate the problem by locating the base line from

16 which current conditions are set to the Department

17 creating the, quote, problem.

18 That's exactly the type of issue that I would think

19 you would all be addressing at the initial stage of the

20 hearing.

21 I don't intend to preclude the parties from getting

22 into those issues if we break it down.

23 Having said that, I think that there are a couple

24 of concerns that I have regarding bifurcating or

25 segmenting. When I say bifurcating, I do not want to

1 limit myself. We may end up splitting it up into more

2 than two parts if there is a logical way to do it, or

3 try to figure that out. I am open to suggestions, and I

4 would just like to hear input.

5 But in terms of segmenting the hearing, there are

6 some concerns that I have that I wanted to voice and get

7 input from the various parties on.

8 The first concern I have by adopting a segmented

9 approach, we may be further postponing determination of

10 what the ultimate strategies are that we are litigating

11 over, and this has been a source of frustration for me

12 throughout the course of this proceeding.

13 We have several times raised the issues as to

14 whether we are going to go to hearing on the strategies

15 set forth in the SWIM plan that was adopted back in

16 March of '91 or whether we were going to go to hearing

17 on some alternative plan that has developed as a result

18 of litigation or whether we were going to go to hearing

19 on some other strategy that has yet to be developed.

20 That is the notion of the moving target that I have

21 talked about. I sometimes feel we do not know exactly

22 what we are shooting at. For those who are challenging

23 the plan it is a very legitimate concern as to what are

24 we going to hearing on, because we don't know what

25 strategy the District is ultimately proposing.

1 So one of the concerns I have is that if I go with

2 the segmenting approach I may be exacerbating that

3 problem by allowing even further postponement of a

4 determination as to what the ultimate strategies are.

5 So I throw that out for input from all of the

6 parties.

7 The second concern that I have in terms of

8 segmenting is that when I originally raised the issue

9 last week I raised it with the idea that there was some

10 consistency on the part of the proponents of the plan as

11 to the existing conditions, the nature of the problem,

12 the reasons for the conditions, some of those issues

13 that are set forth in the early pages of the SWIM plan,

14 and I thought that a lot of those issues had been out

15 there for quite some time, that there had been a great

16 deal of testing done, a great deal of discovery

17 conducted, and that those issues may be more ripe to go

18 to hearing than issues regarding the ultimate

19 strategies.

20 So that was the original thinking that I had.

21 One of the things that was raised in the brief that

22 was filed by the League was a reference to the federal

23 task force, and at least an insinuation that there may

24 be not so much consistency as to the nature and cause of

25 the problems as I had been thinking.

1 And if that's the case, then I think it does raise

2 some question in my mind as to whether or not those

3 issues are ripe or can be segmented out at this time or

4 whether we are dealing with a moving target in that area

5 as well.

6 So those are some of the concerns that came to me

7 in thinking about this after the last hearing, and some

8 of the things that I think we need to discuss today,

9 because I think it will impact upon the way we go about

10 discovery schedules and final hearing schedules.

11 Now having raised those, before we get into those,

12 are there any developments or any new matters that

13 anybody needs to make me aware of at this point in time,

14 or are we back on full speed ahead in the litigation

15 mode?

16 MS. PONZOLI: Full speed.

17 HEARING OFFICER: That's what I was afraid of. I

18 had my fingers crossed.

19 Okay. Well, having said those issues, let me start

20 with the petitioners. I will give petitioners an

21 opportunity to respond to some of the matters that I

22 have raised and to elaborate further on the memoranda

23 that have been filed.

24 Mr. Green, do you want to start?

25 MR. GUEST: Yes, Mr. Menton, before I do I would

1 like to ask if Bob Smith would like to respond to any of

2 the remarks concerning the memorandum that we filed.

3 HEARING OFFICER: All right. Mr. Smith?

4 MR. SMITH: Yes, sir.

5 HEARING OFFICER: Okay. Do you have any response

6 or input you wanted to add?

7 MR. SMITH: No, sir. I am content with what we

8 wrote in the memorandum. I think the response to it was

9 full and fair, and I think if we thought about meeting

10 the logistical demands through the staging, that's the

11 term I prefer, staging of the hearing in terms of

12 periods of time followed by periods of regathering, that

13 things will work out as Your Honor described.

14 What I hope to get you to resist is consuming the

15 whole thing under some preconceived term which implies

16 results, and what you have said indicates you are

17 sensitive to that, and indeed the last time you said you

18 didn't think you could do it if you wanted to.

19 So I am confident. I will turn it back to my

20 partner, Mr. Green.

21 HEARING OFFICER: Okay. Mr. Green?

22 MR. GUEST: Mr. Menton, we have wrestled with this,

23 too, and I agree with Mr. Smith. I think you are

24 wrestling with it, and we all are wrestling with it, and

25 I think your two concerns are really right on point.

1 We have had the fear all along that we are going

2 through I use the term practice bleeding, I heard

3 another attorney say that, and I think it is very

4 descriptive, in the sense that it is a moving target,

5 and not only with regard to what you might view as an

6 implementation, the strategy stage, the first stage Mr.

7 Earl's firm pointed out.

8 There have been so many different views on the

9 nature and definition of the so-called problem, and with

10 this recent preparation by the Department of Interior in

11 response to a Corps of Engineers study there is a

12 massive restudy of the entire system that is underway,

13 and it appears that the range of alternatives being

14 considered there would make our little efforts here in

15 the SWIM plan kind of moot and needless, if that's what

16 you are really looking at.

17 In terms of the interest of the State of Florida as

18 well as our clients I think that if there is a way that

19 Your Honor can press the proponents of this plan to make

20 up their minds before we go through this exercise,

21 realizing that our farmers are facing the combined

22 forces of the United States of America and the State of

23 Florida, who haven't made up their minds yet, I think

24 it's fair that they clear the air and decide what they

25 want to do on both stages.

1 And I fear that staging might be a way that would

2 postpone that to our detriment and to the detriment of

3 those who are interested in assuring that the problems

4 that exist in the Everglades are properly defined and

5 dealt with.

6 So to that extent I would say that it really makes

7 sense from our point of view to keep this baby together,

8 to force that decision to put a deadline on the

9 government to decide.

10 We know the Board will meet next week, and Your

11 Honor established the 14th as a tentative additional

12 case management conference to deal with what happens

13 there.

14 If there is a way to force a unified position among

15 the proponents of the plan in that process and decide

16 what to do, I would urge you to do it.

17 HEARING OFFICER: All right. Mr. Earl?

18 MR. EARL: Mr. Menton, thank you. If I may address

19 your first question, your first concern of the

20 strategies.

21 We, too, are concerned about the uncertainty in

22 terms of what the strategies are linked to the facts,

23 and in the case of a plan which is supposed to be a

24 holistic, coupled project we have trouble, we wonder how

25 if we divided in terms of causation and the remedies or

1 ultimate strategies, how you would avoid invoking a new

2 point of entry when a new strategy, changing the STAs,

3 your water retention areas, perhaps new regulatory

4 systems, replacing some of the STAs, we think that would

5 evoke clear new points of entry and negate all the hard

6 work of causation that has been done.

7 HEARING OFFICER: That's an interesting point, and

8 one that I think we have touched on.

9 It is one that I would like to get input in

10 particular from the District, because we have discussed

11 that in the past, that if there are significant

12 modifications to the SWIM plan, how will that be

13 handled? Will that be handled by remand for adoption of

14 a new plan, or will we do it in the context of this

15 litigation?

16 I think that the case law as I understand it leaves

17 some discretion out there, and I think to a certain

18 extent it becomes a question of degree, as I understand

19 the case law, and somewhat of a judgment call, but I am

20 very curious to hear what position the District has.

21 I think it is a good point. If we do end up trying

22 to segment it are we really creating more problems if

23 there are a lot of modifications, and how do we deal

24 with any parties who may be coming in?

25 MR. EARL: In this particular case where we are

1 reviewing the SWIM act it is particularly important, the

2 SWIM plan, because the SWIM act contains a separate set

3 of rather intricate review procedures, reviews by other

4 agencies.

5 You do not just go back as you would in a

6 permitting hearing and make some changes, and it comes

7 out of the process.

8 373 contains a detailed list of agencies, local

9 governments that have to comment, a review process where

10 DEP has to identify the changes it wants, and then it

11 goes back to the Board, so it is a separate strategy

12 framework which makes this particularly difficult.

13 In addition, Mr. Menton, I would have another

14 difficulty of postponing the strategy, and why we think

15 it will ultimately be more efficient to determine and be

16 more expeditious, the Legislature's term, to combine

17 those, so it is moved forward, so that we may in fact

18 find a strategy that there may be such promulgated that

19 some or all of the petitioners can live with.

20 My clients came very, very close in the mediated

21 process to agreeing to a plan. If other things come out

22 of this process, again we have spun our wheels and have

23 wasted a lot of time and money.

24 It makes sense to integrate the whole as well as

25 the petitioners' view of where the agencies fit into

1 this and make them make a decision.

2 If they really want to have a new SWIM plan let

3 them pull it back, go through the statutory process,

4 tell everyone where they stand.

5 If they don't, let's proceed on the whole plan,

6 let's lock it in, and let's go forward with that and

7 have a hearing.

8 HEARING OFFICER: Mr. Earl, let me say that I think

9 that the idea of segmenting the hearing process doesn't

10 necessarily include what is ultimately a unified

11 hearing.

12 I think that that there will be carryover, and

13 there may be some overlap, that as I indicated earlier

14 we are going to have to break it down in terms of

15 everybody's sanity, and particularly mine. We will have

16 to have some periods of recuperation and so forth.

17 So, I mean, that's just going to be the nature of

18 the litigation in a case of this magnitude for this

19 long.

20 I mean, there may be some people who can continue

21 for 18 weeks at a time through the hearing process

22 without any problem, but I am not one of them.

23 I can tell you that. So we, you know, I don't

24 think the idea of segmenting necessarily precludes the

25 idea of having what is in concept a unified hearing, so

1 in that regard I want to respond.

2 MR. EARL: We have made an attempt to chart out

3 what we have referred to in Exhibit A to our memorandum,

4 we have made an attempt to chart out, Mr. Menton, the

5 relative, Counsel, there in your memo also, and on the

6 left side we have our proposed schedule for a unified

7 hearing, where we have strategy and causation, and that

8 shows we start, the parties have met about two and a

9 half days this week discussing a possible starting date,

10 closed a lot of it, but I think we have agreed on some

11 of it, so we want to move forward on a plan to start on

12 January 24th, and on the left side we have our proposed

13 strategy for a combined hearing, and we have our

14 thoughts on what a bifurcated hearing schedule would be,

15 and by combining the remedy, the strategy, and the

16 factual elements of the case we see that this hearing

17 could be concluded, although it would be tough on

18 everyone...

19 HEARING OFFICER: I noticed you have July 22nd

20 under here, and I am sure you will have me issuing the

21 recommended order by October.

22 MR. EARL: We tried to be optimistic. We can add

23 on whatever would be a reasonable period of time in this

24 case.

25 MR. FITZGERALD: We have great confidence in the

1 Hearing Officer.

2 MR. EARL: We would take all discovery and be done

3 with it by April 25th.

4 HEARING OFFICER: Mr. Earl, if we went with that

5 approach how do you foresee the hearing being conducted?

6 Do you foresee the District coming in, and we have

7 discussed these issues of the burden of proof and have

8 reached a consensus that the first approach would be for

9 the District to present a prima facie case as to what it

10 did in adopting the plan, and then we would go to the

11 petitioners, who would offer their evidence as to what

12 they see is wrong, and then we would go back to the

13 proponents of the plan to take additional testimony.

14 I think that's the best way to conduct the hearing,

15 whether we break it into segments or not.

16 Are you suggesting that what we do is get the

17 evidence from the District as to what it has done with

18 the plan, and then the Sugar Cane League present its

19 case as to what is wrong with causation and what is

20 wrong with the strategies, and then we would go to the

21 Coop, and they would present their case on all of the

22 issues, and then we go to the Vegetable Growers and take

23 all the testimony from them as to what is wrong, and the

24 proposal articulates another problem in the SWIM plan

25 and the proposed strategies that are set forth there,

1 and then go back to the District and get their

2 responses?

3 I guess what I am saying is if we handle it with

4 that approach, by the time we get to the response from

5 the District and the federal government and, too, for

6 example, the nature of the problem, if there is one,

7 then how am I going to be able to recall what all of the

8 prior testimony has been?

9 I just find it will be a lot more of a mish-mash,

10 you know, to try to conduct the hearing that way.

11 It seems more logical and easier for me to try to

12 take all of this in if we try to break it down into just

13 taking all testimony of a particular aspect of the case

14 to the extent that we can, and understand there will be

15 some overlap, and I will not use the segmentation

16 process to collaterally estop people from raising issues

17 later on, as long as it is within reason, but it just

18 seems it will be easier for me to try to put this all

19 together if we try to break it down.

20 I don't know if the proposal you've got here for a

21 unified hearing would allow me to do that.

22 MR. EARL: Well, I think certainly periods,

23 breakdown periods, and certainly on our side of the

24 table, on this table, we will coordinate our

25 presentation and cover issues.

1 We have, and Mr. Hyde, if you would like later,

2 next time, he has some arguments for you, our view of

3 what our presentation will be, which is a little bit

4 different than the proponents of the plan, which would

5 go first.

6 We feel it is the only way we can do it, to lay out

7 the plan, what supports the plan, what it is, and then

8 the petitioners would bring on their case regarding the

9 plan.

10 Mr. Hyde will address that in detail when and if

11 you are ready to hear it today.

12 Now we would obviously work with the Hearing

13 Officer and stage it to make it workable, digestible for

14 all of us. We as the petitioners really need to have

15 some flexibility in terms of presenting our case.

16 We're willing to work on that in any way we can.

17 HEARING OFFICER: Well, if you're willing to work

18 on it in terms of the unified, what's different from

19 that and the segmented plan that you were talking about?

20 What's the difference?

21 MR. EARL: There are quite a few differences. The

22 way the segmented plan works, as I understand their

23 proposal, they want to complete the causation discovery,

24 and they wanted to get that done by as I understand it

25 April 1st, and then they will have the hearing.

1 I don't know whether their request for a

2 recommended order, and we would be opposed to that, and

3 then you have discovery on the remedy here, and I know

4 Mr. Guest would be interested in that. We would be

5 opposed to it. I think it would only delay the ultimate

6 discovery.

7 And the discovery and the pretrial period, we would

8 first start discovery on the remedy issues for about six

9 weeks, and then you would end the discovery remedies,

10 have a pretrial hearing separation period, two pretrial

11 separation periods, getting ready for the trial.

12 Then you have a remedy hearing, an additional

13 hearing, with built-in inefficiencies and two separate

14 hearings, using some of the same witnesses, for example.

15 I understand there are quite a few witnesses that

16 are going to appear on both topics. It is inefficient,

17 Mr. Menton.

18 The remedy hearing ends, and we show this under the

19 bifurcated approach, you could have a much later final

20 conclusion of the hearing in '95, as opposed '94, if we

21 do it all together.

22 HEARING OFFICER: Okay. Let me ask you one

23 question. It seems to me that one of the reasons to

24 support trying to break it down is that it might force a

25 little bit more of the delegation of responsibility

1 amongst the different parties, and some will be at more

2 of a disadvantage than others, but we have a lot of

3 lawyers here, and I am sure that everyone has their own

4 areas of the case that they are particularly familiar

5 with, and one of the things that occurred to me as a

6 possibility of segmenting it is that there are certain

7 lawyers on each side who can be assigned to work on

8 certain aspects of the case and not worry about the

9 first part of it, so that while we are going through the

10 hearing process on the first segment there could be a

11 whole group of you doing discovery or doing trial

12 preparation or working with witnesses in connection with

13 the second.

14 Again there are probably some parties who are not

15 as equipped to deal with that as others, and I certainly

16 would be interested in hearing from them if they have

17 any objections to that, but it would seem that given the

18 vast resources that are being expended on this case they

19 can be used more efficiently that way and be segmented

20 out.

21 Obviously I don't have the ability to segment my

22 aspects of the case, and that's why we would have to

23 build in a period for me to digest those, but I don't

24 have any problem with the concept of us being in hearing

25 on a certain aspect of the case and some attorney being

1 out taking depositions somewhere else on another aspect

2 of the case. If that troubles you or if you don't think

3 that is workable, I would like to hear from you.

4 MR. GUEST: Mr. Menton, if I could interject on

5 that point that Mr. Earl mentioned, by our accounting a

6 number of witnesses overlap.

7 HEARING OFFICER: I mean, there will be some

8 overlap. I understand that.

9 MR. GUEST: So there is not a clean way to

10 segregate these groups. That will be a real...

11 HEARING OFFICER: Well, I mean, I think there

12 clearly will be some overlap, you know, both with

13 witnesses and to a certain degree even with attorneys,

14 you know, some of the issues overlap, but, you know,

15 from an overall standpoint I think that it would seem to

16 me that there will be enough witnesses who can be

17 clearly, will clearly address one aspect.

18 For example, if we go with the current STAs there

19 are probably some experts who have worked only on

20 development of the STA concepts, and really they don't

21 have anything to offer with respect to the existing

22 problems aspect, and they could be, you know, taken

23 separately, I would think.

24 I mean, I am just speculating and trying to figure

25 out an easy way to work it.

1 MR. HOFFMAN: Were you through?

2 MR. EARL: Go ahead.

3 MR. HOFFMAN: I want to tell the Hearing Officer we

4 join the League and the Coop in their general positions

5 concerning keeping the case together.

6 I think part of it from my personal viewpoint as

7 counsel for the Fruit and Vegetable Association is not

8 so much what you are thinking as what we know others are

9 thinking this process would mean if it is broken up.

10 You don't know what we have been told and so forth.

11 HEARING OFFICER: That's absolutely true.

12 MR. HOFFMAN: There is a concern that you would not

13 understand.

14 Number three, though, is it has to be tied to the

15 burden of proof. I mean, once you determine essentially

16 under another motion where we are going, if they go

17 first, that's part of the solution.

18 Also I think that you have used the word bifurcate

19 a lot in your opening comments.

20 HEARING OFFICER: I should go back to staging. I

21 think Mr. Smith was more descriptive.

22 MR. HOFFMAN: It sounded like you made up your mind

23 you would do something in that line, and I would suggest

24 that the semantics are very important to us.

25 I would think the word sequence sure beats the word

1 segment, even though it might not seem like much to you.

2 I can give you an example. We have been told that

3 some parties would like to enter an order on causation.

4 We have been told it would be used to politically

5 bludgeon us into settlement, if you found there was

6 phosphorus flowing from some place. We hope you are not

7 even considering segmented orders, and that kind of

8 thing that is a continuum here between sequencing

9 things, which would be based partly on the burden of

10 proof, and some segmented trial where you would actually

11 pronounce things from the bench or make findings of fact

12 all of us would expect you to, and that could be used

13 for other purposes outside the process.

14 So those are the kinds of behind-the-scene concerns

15 that we have.

16 We also are very concerned about going to hearing,

17 as we said before, because we do not have the resources

18 to handle this on our own, obviously, but I also think

19 that when you, the counsel for the District has been

20 very open about this to the point that right now all

21 there is is this SWIM plan, and that's all he has been

22 told by his client, and that's fine.

23 So it appears that with the various, whatever is

24 happening in the background, there is a push to go to

25 hearing to get things done with this.

1 If that happens, of course, as Mr. Green pointed

2 out, that would be a travesty that people don't want. I

3 don't think you can do that.

4 HEARING OFFICER: But, Mr. Hoffman, I am kind of

5 caught between a rock and a hard place, because I have a

6 legislative direction to expedite this hearing, and I

7 have been trying to do this as best as I can through

8 this process, and it's a little bit difficult, given,

9 you know, all the other factors that are involved in

10 this, but that's a very specific direction in the

11 statute to me, and I have to do everything I can to

12 bring this aspect of the Everglades restoration process

13 to conclusion as soon as possible.

14 MR. HOFFMAN: That's what I am saying. I don't

15 think you can do much about that. If that's what they

16 tell you is the plan, then you have to move it. We have

17 a concern about that, whether it is resolved at trial or

18 whether we have to do it again.

19 But from our viewpoint we believe that if you are

20 going to try to concentrate types of witnesses in a

21 sequence tied to the burden of proof, then using that

22 terminology would be something that we could live with,

23 but I think more important would be you need to know who

24 the witnesses are that people intend to call, so we can

25 have a grasp of the limit.

1 We have been trying to work on that, and there are

2 proposals to limit the number of witnesses that are from

3 our viewpoint, we have always believed that witnesses

4 that worked for the government, we have statements they

5 have made that we think would support us, and they would

6 be adverse witnesses, and we would like to see the case

7 controlled more from that end, and the number of

8 witnesses that people will actually call and get that

9 limited, and not to include adverse witnesses from our

10 viewpoint and move the case along tied to the burden of

11 proof and any sequencing that that would engender.

12 We vehemently oppose the other end of that

13 continuum where it was segmented up as though it were

14 cutting up some sort of a snake with pronouncements or

15 restrictions of what you have learned. That would be a

16 continuum we would violently or vehemently oppose.

17 HEARING OFFICER: I wanted to respond to a couple

18 of things that you raised, Mr. Hoffman.

19 First of all, with respect to separate orders

20 certainly I will listen to Mr. Guest and the other

21 parties as to what their position is on that.

22 In the situations that I have handled in the past

23 where I have done a separate recommended order, and I

24 don't, I am trying to remember exactly what, but in one

25 instance I know we didn't do it in terms of a separate

1 recommended order, but what I did was in terms of

2 findings of fact and conclusions of law regarding a

3 particular aspect, which did not go back to the agency

4 at that point for approval and go through that whole

5 process, but simply gave the parties my findings

6 regarding certain, in that particular case there were

7 liability issues, etcetera, that were involved, and the

8 parties agreed, all the parties agreed in that case that

9 if they could resolve those issues it would facilitate

10 their resolution of the subsequent issues in terms of

11 the amount of discovery that would have to be

12 undertaken.

13 So there was a total agreement in the one instance

14 where I have used that approach, and I would have to

15 think about it a little bit more before I would be

16 willing to do it over the objections of some of the

17 other parties.

18 But it actually worked very well. What I did is

19 specifically followed the same format I would have done

20 in a regular recommended order, made findings of fact

21 and resolved certain issues that as a consequence

22 determines how much discovery was needed in other areas

23 and how, and really the legal arguments in connection

24 with some of the issues down the line.

25 I am not sure whether this case can fit within that

1 approach or not, and certainly I would be willing to

2 hear from Mr. Guest and the other proponents of such an

3 approach if there are any.

4 But in responding to you, Mr. Hoffman, I have never

5 done one where I have done a separate recommended order

6 and sent that back to the agency and retained

7 jurisdiction and did a recommended order on another

8 aspect. That has not been the approach that I have

9 used.

10 I have done it as a separate evidentiary hearing on

11 particular issues, made findings of fact on that, which

12 then governed the way that the parties approached the

13 rest of the case, and I don't know if that changes your

14 thinking. It may make it more objectionable. It may

15 not. I don't know.

16 MR. HOFFMAN: Well, there is no way you could

17 explain it that would make it less objectionable,

18 because when you read the SWIM plan it is by statute an

19 order. It is nothing but a rule full of policies from

20 top to bottom, including policy decisions that the

21 strategies to achieve interim and long-term phosphorus

22 concentration reduction will require installation and

23 use of STAs.

24 There is nothing that would not be prejudicial to

25 our position that would have some kind of findings of

1 fact in the middle of the case. It would be

2 devastating, in my opinion.

3 MR. EARL: We would concur with that position.

4 If I may clarify one point, and I think it is

5 important, you have worked very hard to meet your

6 statutory mandate under the Marjory Stoneman Douglas Act

7 to expedite this.

8 We are proposing cutting the number of expert

9 witnesses down, for example.

10 The proponents of the plan have I think 80 expert

11 witnesses, and we have had some discussions. We've

12 proposed 40 for each side, not including adverse or fact

13 witnesses.

14 We are making efforts. The holdup right now in

15 this plan is to practically get the hearing done and do

16 it quickly, and the problem is the South Florida Water

17 Management District.

18 We submitted the transcript. They have

19 instructions from the administration and the Governor's

20 Office to come up with a new plan. They need to fish or

21 cut bait, tell us what is the plan, what are the

22 remedies, and then we can all go.

23 The holdup is not with you or with this hearing.

24 It is with that Governing Board that needs to take some

25 action promptly. That's what holding the process up.

1 Anyone who thinks it is anything else is confused.

2 There has been a delay, because people came very

3 close to settling it, but that Board I think is

4 operating under the premise they have a right while this

5 is before this agency to go assemble another plan, and

6 that clearly isn't true. Once it goes to DOAH they

7 don't have jurisdiction.

8 HEARING OFFICER: Before I go to the proponents of

9 the plan, and I have been hearing only from the

10 petitioners so far, and I will give you an opportunity,

11 there was one other thing that Mr. Hoffman raised that I

12 think I wanted to comment on having to do with

13 witnesses.

14 One of the reasons why I wanted to do the hearing

15 today on the bifurcation is because I hoped that, let me

16 go back, staging issues. I hope that we can put this

17 issue to rest, and if we are going to do a staging

18 approach then that would enable the parties to, you

19 know, clearly identify the witnesses that they are going

20 to use and rely upon during the various stages of the

21 hearing, and that will contribute to establishment of

22 the discovery schedules and also a clarification in

23 terms of who is going to be called and when.

24 So that's exactly the kind of issues that I want to

25 try to get to the bottom of as a result of the hearing

1 today.

2 In terms of the number of witnesses, you know,

3 those are issues that have been raised in the briefs

4 submitted by the League.

5 I don't know that I am prepared at this time to

6 resolve those issues. I would be curious to hear what

7 the proponents of the plan have to say on that.

8 Let's start with the District. Mr. Reid?

9 MR. REID: I think Mr. Guest wanted to comment

10 first.

11 MR. GUEST: I would like to, if I might, go to the

12 staging issue. I think there are substantial advantages

13 to it, as in the previous cases you described. We have

14 had some experience.

15 That is at first that the great division between

16 the two sides is that we view the industry as being the

17 flat earth society members, and they don't accept that,

18 and there is a problem, and I think it would make a huge

19 amount of difference to understand how that will come

20 out.

21 As a practical matter I think a decision on that

22 would be very likely to enhance the opportunity for

23 settlement if we had a finding on that.

24 I think also that if you find at stage one that a

25 particular standard, 40 parts per billion or 10 parts or

1 whatever, whatever parts per billion is where the

2 pollution starts having an adverse impact on the

3 Everglades, that's going to have very important

4 ramifications for the plan.

5 If the plan it targeted at getting to two parts per

6 billion or 50 and you find that the standard that the

7 District is using is incorrect, obviously the whole plan

8 has to fail.

9 If you find also that our, as our opponents insist,

10 there is no pollution problem out there, it would seem

11 rather peculiar to continue along with seven or eight

12 more weeks of trials for a problem that does not exist,

13 and if you found there is no pollution problem, the

14 right thing to do would be in the findings of fact and

15 remand it back. It would not make sense to keep on

16 doing it.

17 So I think it really does make sense to follow the

18 procedure that would call for some findings of fact

19 along the way to do that.

20 On the question of the moving target, I don't think

21 there is any serious dispute on our side of the table

22 that there really is a pollution problem in the

23 Everglades. It is not the only problem, but there

24 certainly is a pollution problem, and the Marjory

25 Stoneman Douglas Act...

1 (WHEREUPON, A BRIEF OFF-THE-RECORD DISCUSSION WAS

2 HELD DUE TO THE CONFERENCE CALL BEING DISCONNECTED, AND THE

3 HEARING WAS RECESSED FROM 10:52 A.M. TO 11:04 A.M., AT WHICH

4 TIME MS. BOYD WAS ABSENT.)

5 TELEPHONE OPERATOR: Good morning, Mr. Menton?

6 HEARING OFFICER: Yes.

7 TELEPHONE OPERATOR: This is AT&T. I do have all

8 of your parties with me, with the exception of Ms. Boyd.

9 Would you like a roll call?

10 HEARING OFFICER: Okay.

11 TELEPHONE OPERATOR: All right. Good morning,

12 everyone. Mr. Smith, are you there?

13 MR. SMITH: Yes.

14 (WHEREUPON, MS. CLEMENTS, MR. MC FARLAND AND

15 MR. WARD WERE PRESENT.)

16 TELEPHONE OPERATOR: Ms. Clements, Ms. Ruth

17 Clements?

18 MS. CLEMENTS: Yes, we are here.

19 TELEPHONE OPERATOR: Are you here, Mr. Reid?

20 Mr. McFarland?

21 MR. MC FARLAND: Yes.

22 TELEPHONE OPERATOR: Mr. Lehtinen?

23 MR. LEHTINEN: Yes.

24 TELEPHONE OPERATOR: Mr. Ward?

25 MR. WARD: Yes.

1 TELEPHONE OPERATOR: Mr. Wedgworth?

2 MR. WEDGWORTH: Yes.

3 TELEPHONE OPERATOR: Okay. All right. Your

4 reference number has changed. It is WD, as in "David",

5 77621. And you do have our 800- number, do you not?

6 HEARING OFFICER: Yes.

7 TELEPHONE OPERATOR: All right. Everyone have a

8 very good day and a better weekend. Thank you for using

9 AT&T.

10 HEARING OFFICER: Mr. Smith, I don't know at what

11 point you got off.

12 MR. SMITH: I'm sure I heard all the gist of it,

13 Mr. Menton.

14 HEARING OFFICER: Okay. I think Mr. Guest was in

15 the middle of his presentation.

16 MR. SMITH: That's correct.

17 MR. GUEST: What I was fixing to say is I don't

18 think there is really any dispute on this side of the

19 room that this is a serious nutrient removal problem,

20 and the process is not changed.

21 I think that as to the actual SWIM plan, I would

22 not call it a moving target, but it is a twitching

23 target, and it has twitched several times, and it is

24 twitching now.

25 But until it actually moves I don't think there is

1 a substantial change.

2 But even if the SWIM plan is amended to conform

3 with the mediated plan I would submit that we would have

4 to brief the question first to see if there is enough

5 difference to cause a change of how this litigation

6 should go, and I don't know, are you guys going to

7 object if I say what the changes are?

8 MR. GREEN: Yes.

9 MR. GUEST: Okay. Then I won't do it, then. I

10 think that the fact that they object has some meaning.

11 I would say the changes are not large enough or

12 important enough to make any difference to the substance

13 of the litigation, and for that reason I don't think

14 that there is very much danger that putting this thing

15 in two stages is going to create an additional point of

16 entry at all.

17 And then turning to the other two things, I might

18 as well finish saying everything I have to say, as far

19 as the learning curve I have always thought a good way

20 to do this is to have the parties each write a 20-page

21 memo articulating what they think the issues are and

22 what their point of view is, an overall view of their

23 side of the case, just a guiding document for the other

24 parties and the Hearing Officer.

25 I had a very complex civil rights trial several

1 years ago where the judge insisted on doing that at each

2 stage, and he insisted on doing that at the beginning of

3 each part, and he would stop people and ask questions

4 and see how it fits into the story. I think that would

5 be very useful here.

6 HEARING OFFICER: Along this line I don't recall at

7 this point, I would have to go back and review the

8 pleadings, in terms of whether, I mean, obviously in

9 most complex cases I do a prehearing order and require a

10 prehearing stipulation, but I think in this case because

11 of the number of parties, I don't recall that I did

12 that. Does anybody remember that?

13 MR. FITZGERALD: We did have ordered in the

14 scheduling order dates that included a period where the

15 parties were obligated to try to file any agreed stips,

16 not trial briefs, per se. They were not specifically

17 ordered, but some of the pleadings before you are

18 tantamount to that.

19 MR. GUEST: This is not a trial brief. It is a

20 road map. That is what the idea is, with everybody

21 providing a road map.

22 And finally my sense of this case is that, you

23 know, the old joke about how many lawyers does it take

24 to change a light bulb, and the answer is, "How many can

25 you afford?" I think the same thing with witnesses, how

1 many witnesses do we have?

2 I don't think it is going to take anywhere near as

3 many as are listed, and especially as to the question of

4 is there a nutrient problem in the Everglades caused by

5 the EAA runoff, I don't think that requires the massive

6 number of experts and a massive interrogation.

7 HEARING OFFICER: Mr. Reid or Ms. Ponzoli?

8 MS. PONZOLI: I'll go next. The United States

9 supports this concept of a staging really for three

10 reasons. We think it is practical and fair, we think it

11 will actually expedite a resolution, and I think it is a

12 rational order of proof.

13 As to practical and fair, we are looking at, I

14 guess you are right, that we don't know how long it will

15 take, but six to 10 weeks seems to be the range of the

16 trial. It will have to be broken up.

17 I believe the government will put on a prima facie

18 case, and the petitioners who actually are challenging

19 come in with the body of their case, and then we

20 respond.

21 And I think skipping to my third reason, a rational

22 order of proof, if you look at the harm and the

23 causation issues it doesn't make sense to look at

24 remedies first and then start looking at the other and

25 what we are fixing.

1 We are fixing largely the SWIM plan, water quality

2 problems, and as far as the expeditious hearing I have

3 to tell you quite honestly the fact that there has never

4 been a hearing on the pollution in the Everglades has

5 caused us difficulty over time in resolving it and

6 fixing it, because we have never had a Hearing Officer

7 or the court actually make those findings or sustain the

8 District or the other proof of those findings, and I

9 think truthfully it has given people an opportunity

10 politically and maybe in rationalization in their own

11 minds to say, "Well, they have never proven there is a

12 pollution problem. No court has ever actually affirmed

13 that."

14 We need to do that as soon as possible.

15 Now I agree with Mr. Hoffman, I would

16 wholeheartedly support a limitation on witnesses, and

17 there was discussion of that this week in fairness to

18 all the parties. We did make an effort towards that.

19 The League did come in, and I believe it was

20 somewhat supported by the other parties. If they could

21 limit their expert witnesses to 40, we certainly can

22 limit ours to 40. I think we can limit ours to 30. I

23 think we are in agreement on our side of the table. We

24 will go to 30 expert witnesses.

25 HEARING OFFICER: Let me just interrupt you a

1 moment, so I am sure that I am following you. You

2 talked six to 10 weeks. If we did that as identified...

3 MS. PONZOLI: Yes.

4 HEARING OFFICER: ...and now we are talking about

5 30 experts, are you talking about in unified or at the

6 first stage?

7 MS. PONZOLI: In a unified hearing you would have

8 30 experts. You would have less in a staged hearing.

9 You could do it on less in a staged hearing.

10 I don't know exactly what the count would be. I

11 don't know exactly. It might be 50 and 15. I think it

12 would be more like 20 and 10 for the staged hearing.

13 You would have some overlap.

14 I don't think the government parties have as many

15 mutual witnesses who go to causation and remedy as the

16 petitioners do.

17 The problem with their limitation of witnesses,

18 they were never willing to limit their fact and adverse

19 party witnesses. That could run double the number, so

20 it wasn't limiting discovery, and it wasn't limiting, it

21 wasn't pulling things in tighter. It was open ended.

22 So I think we would still challenge them to get

23 that number down to what they really think they will

24 bring in and present to you, because I honestly submit

25 when we stand before you no one will put on a huge

1 number of experts.

2 I don't think any trial attorney thinks any judge

3 has the capacity to listen and actually hear 40 experts.

4 You lose it after a while. No one can listen that long.

5 So addressing your two particular concerns about

6 the strategies, I believe quite honestly as to the

7 pollution problems in the Everglades there are two

8 strategies. There are BMPs and STAs, and whatever mix

9 you use, those are the ones for fixing it, and that's

10 what the SWIM plan has.

11 Let's get the strategy before us and go on.

12 As to the task force report, I want to address that

13 briefly with you.

14 That task force report as you can see it here

15 addresses the hydrologic system. It is an early draft

16 of a massive effort at looking at the total Everglades

17 restoration. It is only a very early draft and looked

18 only at some hydrologic, the full range of hydrologic

19 possibilities for improving the hydroperiod.

20 It did not include as its final genesis looking at

21 the economic possibilities in sustaining the urban area

22 and industrial areas.

23 I think I can speak with some confidence that we,

24 the purpose of the task force and the ecosystem

25 restoration is to avoid the train wrecks that we have

1 seen in the past between industry and the environment,

2 try and plan things out in a fuller way.

3 It is very unfortunate that at this early draft it

4 blew up in people's faces, and we regret that. We

5 regret it was that explosive. It was not intended to

6 be, and the future drafts will include the

7 considerations of economic possibilities.

8 So I think it is much ado about nothing.

9 HEARING OFFICER: Are you saying then that the

10 position Mr. Hyde or whoever filed, I guess we are

11 saying it for the League, indicated a concern that that

12 task force report articulated some new version of the

13 nature of the problem and the cause of the problem in

14 the Everglades?

15 Are you saying that that does not in any way alter

16 the position of the federal government as to the nature

17 of the problem as set forth in the SWIM plan?

18 MS. PONZOLI: That's right.

19 HEARING OFFICER: Okay.

20 MS. PONZOLI: I think, I guess my final point would

21 be I also agree with Mr. Earl it is time to fish or cut

22 bait. My clients want to see an early trial, and they

23 very much want to see it first on the causation and harm

24 issues. Let's get the facts.

25 We would like to see some actual facts, actual

1 findings of fact from you on the issues, and then I

2 think that those who would advocate for the study, for

3 the delays, are going to be faced with, we will affirm

4 the strategy, adopt whatever strategy we are adopting,

5 but we are facing them and doing it rapidly.

6 So we would ask you to set an early trial date and

7 the staging that you proposed.

8 HEARING OFFICER: Have you given any thought if we

9 do go with the staging approach of the time frame that

10 we would be looking at both for setting the hearing in

11 terms of discovery and how long such a hearing would

12 take?

13 MS. PONZOLI: I think we would hope that you would

14 give the discovery through I guess April 1st and then

15 set a trial in mid to late April on the first stage of

16 it. That would give us 50 days.

17 There are many causation witnesses when you take

18 the witnesses on the other side. We haven't really

19 nailed down who fact and adverse witnesses are that they

20 will want to depose.

21 We have sought at least early on to limit the

22 scientific depositions to three a day. We are willing

23 to go to a higher number if it will expedite it.

24 HEARING OFFICER: Mr. Guest, I didn't ask you that

25 question. Did you have any particular input in terms of

1 what you think if we went through the staging route,

2 what you think would be an appropriate day and how much

3 discovery?

4 MR. GUEST: Early April, and I agree about the

5 discovery.

6 MR. REID: Can I just ask a question? When you

7 talk staging, is it your vision that all discovery will

8 be completed before the first day of testimony starts?

9 HEARING OFFICER: All the discovery on the first

10 stage.

11 MR. REID: Just on the first. So there will be

12 later discovery to be done theoretically?

13 HEARING OFFICER: Well, you know, this is sort of a

14 moving target in itself, as we've talked about, and

15 certainly I am willing to, but one of the things I had

16 raised earlier is the possibility that there could be

17 ongoing discovery regarding subsequent stages during the

18 first stage of the hearing or at least the possibility

19 to set it up that way.

20 I don't know what the position of the federal

21 government or Mr. Guest would be with that aspect of it.

22 MR. GUEST: That is an excellent idea. I did a

23 trial last year where we did discovery while we were

24 doing the first part, and it worked very well.

25 MS. PONZOLI: I would like to point out that we

1 have done between 90 and 100 depositions to date,

2 Mr. Menton, and a fair number of those have been

3 deposed, so, you know, we would agree to do discovery

4 while we were proceeding with the first stage of the

5 trial.

6 I did not mean to imply that you didn't have the

7 ability to listen to the 40, but it just seemed to be

8 something beyond dealing with.

9 HEARING OFFICER: I agree with you. There is a

10 point of diminishing return.

11 MR. FITZGERALD: Amply demonstrated by the

12 depositions we sat through thus far.

13 MR. GREEN: May we speak to that?

14 HEARING OFFICER: Yes, at this point I don't know I

15 will decide anything conclusively today. These are some

16 ideas I think we need to get out and talk about, and we

17 will come to some resolution in terms of getting a

18 discovery schedule going and all that, but in terms of

19 ultimately deciding whether I am going to do a separate

20 recommended order or proposed findings of facts after

21 the first stage, I want to think about those after

22 aspects before I decide it, but before I get back to

23 you, Mr. Reid, was there anything further you wanted to

24 ask?

25 MR. REID: I would ask another question for

1 clarification. Do the petitioners object to, assuming

2 there is some, what was Mr. Smith's word, staging, and

3 do they object to ongoing discovery once the first stage

4 starts?

5 MR. GREEN: Absolutely.

6 MR. REID: Well, I will say as a starting point I

7 think that most of this talk about moving targets can

8 easily be put aside. The government made up its mind

9 already once on the issue when it adopted the SWIM plan,

10 and that is all we can do. We can't change that at this

11 point as far as this proceeding goes, moving ahead.

12 I can't tell you that there will be or will not be

13 a change. All I can tell you is we've got a SWIM plan,

14 and we are in litigation over it, and we are ready to

15 move ahead in that litigation.

16 So I don't think it is a moving target, any more

17 than there are pages and pages of defenses or objections

18 to the SWIM plan, which even object to BMPs, where the

19 rule was already in place and everybody is living under

20 it.

21 There are a lot of moving targets. I think to put

22 all of that aside we have a SWIM plan, and that is the

23 mind of the government, and we are ready to move ahead

24 on it.

25 The District's position, I have four suggestions

1 that I want to make, and this is really based on all

2 that they have said and looking at our witnesses and so

3 forth and doing calculations about how many hours there

4 are in the day and what can be done in certain periods

5 of time.

6 Number one, we support a trial in April. Number

7 two, we think in order to achieve that we need to have

8 discipline imposed, and that discipline we suggest would

9 be 30 total witnesses per side.

10 As a subpart...

11 HEARING OFFICER: This is again 30 witnesses for

12 the whole case?

13 MR. REID: For the whole case, and we'll get to the

14 staging in a minute. Thirty witnesses for all issues.

15 Now, number one, I am suggesting, you know, they

16 said 40 experts, and I am saying 30 total, and there

17 might obviously, it might get moved around, but I think

18 30 is probably the right number for experts, total

19 witnesses, I'm sorry, with the right obviously to come

20 in and make a showing if you need to do more.

21 So long as everybody has that right on a good cause

22 basis I think setting the 30 would create a discipline,

23 and frankly I think we could live with it, as opposed to

24 setting it high, because everybody thinks 30, but we

25 want 50. I say make it 30, and if anybody wants to ask

1 for more, they can.

2 I would object, again talking about point two

3 here...

4 HEARING OFFICER: Is that 30...

5 MR. REID: Total.

6 HEARING OFFICER: ...total for each party or 30 per

7 side?

8 MR. REID: Per side of the case. 30 for all the

9 people on this side of the room, and 30 for all the

10 people on that side of the room.

11 I would say that is the one difference we have, and

12 maybe it isn't something that we have to get in a big

13 argument about, they want to exclude adverse, adverse

14 and fact witnesses, and the problem is every District

15 employee could conceivably be considered a fact witness

16 or an adverse witness, and it is a unique situation

17 really regarding my client that they don't have

18 regarding their claim.

19 So by leaving it open to a limited number plus

20 adverse and fact witnesses, it is open ended.

21 I say let's make it 30, and if they believe they

22 need more than 30 they could come in and ask for it, and

23 if they make a showing, and I am not even saying it has

24 to be an overwhelming showing. We are reasonable about

25 it. It happens in these cases all the time. I mean it.

1 The federal rules do things like this, limiting

2 numbers of depositions in every case, without even

3 knowing what the case is about.

4 Our number of 30 is a number that I think has some

5 basis for it when you count up the people that we have

6 talked about and they have talked about. That is number

7 two.

8 Number three, we think you ought to immediately

9 schedule a hearing leading up to what would be I guess a

10 pretrial hearing, and the procedure here would be to

11 make the petitioners finally set out their positions.

12 What are they objecting to?

13 In the SWIM plan, list the issues of facts, issues

14 of law, issues of policy, and the witnesses for these,

15 and then we would respond and say what we think the

16 issues of fact and the issues of law and the witnesses

17 that respond to the policy are, and then we could come

18 together for a fairly early prehearing conference and

19 would end up with a prehearing order.

20 We have, as I said earlier, pages and pages of

21 attacks, and we have objected.

22 You remember we have a number of motions to

23 dismiss. I would say now is the time, you know, to get

24 ready, and I will turn the words around.

25 We have said it is time for my client to fish or

1 cut bait. We know that. We are doing that,

2 and we are ready to move ahead. Now is the time for

3 them to do it. They need to say what they will

4 limit, what they intend to limit their objections

5 to.

6 So I would suggest a process whereby the

7 petitioners set out theirs, the respondents set out

8 theirs, and we put it together and know exactly what we

9 are litigating if we move ahead. That is the third

10 point.

11 I would see that happening fairly soon, I would

12 think perhaps even as early as early February for the

13 hearing, a couple or three weeks for them to get their

14 stuff together, a couple or three for us to respond, and

15 then have the hearing.

16 Because ultimately by limiting witnesses and

17 limiting the issues, that's how you get the color or the

18 scent of it, and we are willing to live with that

19 discipline. We are asking you to impose it. I think

20 somebody was right, the number of experts is how many

21 you can afford or how many do you have on staff or

22 whatever.

23 MR. SMITH: Excuse me. Mr. Menton?

24 HEARING OFFICER: Yes, sir?

25 MR. SMITH: This is Bob Smith. Before he gets to

1 number four, I need to ask you to excuse me now to let

2 me leave our case in the capable hands of Bill Green. I

3 have this phone for a limited time, and I am out of the

4 office, and if I may I would like to be excused.

5 HEARING OFFICER: Okay.

6 (WHEREUPON, MR. SMITH LEFT.)

7 HEARING OFFICER: Mr. Lehtinen, are you still on?

8 Ms. Clements?

9 MS. CLEMENTS: Yes, we are.

10 MR. LEHTINEN: Yes.

11 MR. REID: Number four has to do with phasing,

12 sequencing, preparation, and all of the above.

13 I guess in thinking about this case myself I never

14 thought we would come in and start taking evidence and I

15 would live in a hotel room and be here for eight or 10

16 weeks and just run like a jury trial.

17 I always envisioned there would be some sort of

18 case management.

19 I think you don't need to decide right now what

20 that is going to look like. I think a better time to

21 decide that is after we get together and you see the

22 issues and we have identified the number of witnesses

23 and who the witnesses are, because there maybe some

24 witnesses now that they say, "Well, we have witnesses

25 who will talk about both." Well, we have those who are

1 not going to be used. I mean, we may end up using only

2 witnesses who talk about only one issue. We really

3 don't know that at this point for everybody.

4 So I would say a reasonable way to approach it

5 would be after you have the hearings and the

6 preconference hearing, the prehearing conference, get

7 the issues and the witnesses identified, then we could

8 sit down and talk about, you have heard about four

9 different ideas, and we think some of them have a lot of

10 merit, some have less merit, and some maybe can be

11 developed a little more. Everybody, that's why I was

12 asking the questions to understand.

13 I don't think we ought to put discovery off into

14 the hearing. I think we can get it done between now and

15 April with the limitations that I am talking about. So

16 in that respect that really, that suggestion I don't

17 think is necessary. I think we can get it done and

18 still start the hearing in April.

19 But I would suggest that as we move closer to the

20 hearing after we have done all these other things, then

21 the time would come to decide what kind of sequencing,

22 bifurcation, etcetera, makes sense.

23 We would have a much better idea then of knowing.

24 It maybe that some of the objections may be

25 dropped, and it will shorten one part of the case or

1 lengthen another part. I think we would know better

2 then, and so that would be our position on that. We

3 should not stop everything while we decide how we are

4 going to actually have the trial, what the final hearing

5 will look like.

6 We ought to move ahead with these other things. So

7 in sum I think we can be ready for trial in April, and

8 we think there ought to be a limit of witnesses of 30

9 witnesses per side, and we ought to set a procedure over

10 the next 30 days to arrive at a final document setting

11 out the issues and the witnesses the parties will be

12 litigating, and we should as we get closer to the trial

13 face the issue of what makes sense so far as bifurcation

14 in any sense that you want to hear it. That is the

15 position of the District.

16 HEARING OFFICER: Mr. Killinger, did you have

17 anything?

18 MR. KILLINGER: I agree with some of what Mr. Reid

19 said. I think on the sequencing or staging or

20 bifurcation, I think in order to do some of that, I

21 think we need to do it. I have difficulty with

22 overlapping witnesses and to depose after one witness

23 comes on, after they have testified in the first part,

24 prior to the second part.

25 I think you will be running back with depositions

1 with impeaching testimony while the trial is ongoing

2 which would be a procedural morass to get into.

3 I think that a better way to do it would be by

4 limitation of witnesses. We support that.

5 I think the point is to do it fairly, and I think

6 in order to do it fairly and have some, I think

7 substantial and better deal of why somebody needed more

8 than the substantial number, why you are talking about

9 the meeting over a long time, some idea of what they

10 will testify about would avoid the problem of further

11 discovery or some other issues or something intertwined.

12 I think I agree, I never had any idea we would come

13 in and do it in one shot from start to finish. We

14 contemplated doing it in two locations, and it obviously

15 contemplates a break. I don't know if that is still on

16 the table or not.

17 I've also got a question about the internal

18 findings. You have a lot more experience with that than

19 I do. I think in one case you have done it by agreement

20 of the parties. It would be a great idea to get the

21 findings out so they could be articulated with your

22 preliminary findings.

23 I guess I would like to understand more about the

24 procedure you use, whether you would request a

25 recommended finding of fact from the parties before you

1 issue it or whether you would come out with what you

2 think the state of affairs is and not send them to the

3 agency for a final order and written justification. I

4 don't know enough about that now.

5 But I think at a staged hearing, that is not a bad

6 idea. I think I would recommend having all discovery

7 completed before we start it, and I think a limitation

8 of witnesses is the most immediately effective and

9 manageable way to do it and get it accomplished.

10 HEARING OFFICER: Okay. Mr. Lehtinen, did you have

11 anything you wanted to add?

12 MR. LEHTINEN: Are you talking to me?

13 HEARING OFFICER: Yes, sir.

14 MR. LEHTINEN: Well, I would just repeat the

15 suggestion we made in December, and that is that you

16 should limit the number of witnesses, and then as has

17 been said if there is a showing that more are needed by

18 either side then you can permit that.

19 Likewise we have no objection to the division of

20 the hearings in a way that would be more than just a

21 logical progression.

22 They are, however, very closely related, but in

23 anything you organize you have to organize it somehow,

24 so we would concur and think it is fair to have the

25 division that is proposed.

1 And the time frames that are being talked about are

2 acceptable, you know. They are acceptable now. The key

3 thing is keeping it on schedule. We just had that

4 comment.

5 The time frames that are being proposed are

6 expeditious, but our fear would be something happens

7 that makes them lag, especially if the limit on

8 depositions is not imposed, because we have not been

9 under the impression that without a limit that there is

10 any reasonable way to keep incredible repetition and

11 waste from occurring in the discovery and probably the

12 hearing as well.

13 HEARING OFFICER: All right. Let me ask a

14 question, not necessarily of you, Mr. Lehtinen, but of

15 Mr. Reid or the proponents who have some idea of

16 limiting witnesses.

17 Are you suggesting that discovery depositions

18 should be limited to 30 witnesses?

19 MR. REID: Yes, sir.

20 HEARING OFFICER: There would be no discovery

21 beyond those 30 witnesses?

22 MR. REID: Yes, sir. Absolutely.

23 MS. PONZOLI: Without showing.

24 MR. REID: But we have already taken 98 depositions

25 already. They took the deposition of somebody who did

1 the graphics for a meeting.

2 I think we need the discipline. I am willing to

3 live with 30 as a starting point.

4 HEARING OFFICER: All right. Any other comments

5 from the proponents of the plan on those things we have

6 discussed so far?

7 Let's go back to the petitioners.

8 MR. GREEN: Thank you. Yes, Mr. Menton, thank you.

9 I would like to review the bidding a little bit, if we

10 could. It may be helpful. We have been at this now

11 quite a while on all of this.

12 The point of departure that I recall is last spring

13 or so mediation discussions began, and we took a couple

14 of little hits where we moved everything 30 days, but we

15 had a schedule pretty well laid out, which was a long

16 period of time, which was a monumental accomplishment in

17 itself.

18 And you recall that the Cooperative with the first

19 couple of 30-day stays, we were sort of pessimistic, but

20 we said, "Sure," because everybody agreed that the

21 schedule would be moved to the same point in time, and

22 it was.

23 And then we moved along, and there was good reason

24 for that.

25 My notion of mediation and staying of litigation is

1 \that there is sort of going good faith assumption by

2 all parties that by entering into that in good faith no

3 one will take advantage of it to modify the status quo

4 severely to the participants, those participating

5 parties basically.

6 And the status quo was, and it was agreed then,

7 that the schedule slipped each time we took 30 days, and

8 we moved it.

9 It was difficult of everyone to reconstruct

10 deposition schedules, but we did that.

11 And the last long stay I believe was in July, but

12 we had a schedule that had essentially three months of

13 discovery left and give or take a month and a half of

14 trial prep. I could be off a week here or there.

15 Basically that period of time was four and a half

16 months.

17 Now at the case management conferences on May 21st,

18 July 16th, October 4th, October 19th, and November 18th,

19 the Cooperative consistently expressed the view that,

20 you know, hope springs eternal, but we didn't think it

21 was going to happen. It just looked like it was too

22 much distance to cover for a settlement.

23 We began to object to further stays simply because

24 we wanted some assurance that we would not be

25 prejudiced, that we would not be railroaded at the end,

1 and at that time there was a real prospect that we would

2 be parting company with some of our brethren in the

3 industry, and we would certainly, and that still hasn't

4 been ruled out even today.

5 But now what we are hearing is, "Well, guys and

6 gals, you know, time has passed, and let's narrow down

7 the number of witnesses, and let's roll this thing."

8 What we are really talking about is really five or

9 six weeks difference.

10 I think Mr. Earl's schedule that he showed with the

11 consolidated hearings showed the hearing ending,

12 beginning rather at the end of May, let's say June 1st,

13 and Ms. Ponzoli said something like late April, so what

14 you are talking about is not a long amount of time

15 chronologically, but it is a huge amount of time for my

16 clients for discovery, completion, and case preparation.

17 Mr. Reid asks if we would oppose simultaneous

18 depositions during the trial, and I think he indicated

19 he wasn't a proponent of that either. That would be an

20 impossible burden to place my client in, and we would

21 hope that you would not consider that.

22 But I think we agree that case management obviously

23 is called for. We believe a June 1st hearing is very

24 early. You can play games with witnesses and limiting

25 depositions, but the bottom line is we haven't gotten to

1 any key witnesses the federal government or the state

2 has. They have gotten to ours. We have not gotten to

3 their key witnesses.

4 Now if we want to go to the hearing date that is

5 sooner, sooner than we think is fair, where we are

6 prejudiced, then I would suggest that petitioners be

7 allowed to discover all of the witnesses of the

8 proponents and make them available, and when we finish

9 that then let them come back.

10 Now they are talking about deposing some of our

11 witnesses a second time, and we haven't even gotten to

12 theirs on the first time on the same subject matter.

13 So we are caught up in this. I think that there is

14 a real problem, so, number one, we would urge you not

15 allow segmentation of discovery and give us time that we

16 had so we won't be prejudiced.

17 We think we can get there by June 1st, and we think

18 that is in the best interests of everyone.

19 Number two, we are real concerned if there was

20 segmentation of discovery that discovery in the first

21 phase would be limited, so we could not fully discover

22 the government's case. We would be concerned that we

23 would be limited in cross-examination on credibility

24 issues in the first segment of the hearing, if the

25 first segment was narrowly defined to a particular

1 subject matter, and we would hope you would consider

2 that in your deliberations over the next few days.

3 Ms. Ponzoli said there wasn't just a pollution

4 problem that they were dealing with in the Everglades,

5 that somehow the task force report is only a, and I am

6 using my words, I don't remember it verbatim, but that

7 there was a separate study going on, and it didn't

8 affect what we were doing here.

9 Well, I suggest that is absolutely incorrect. The

10 Marjory Stoneman Douglas Act legislation mandated that

11 this one plan deal with restoration, hydroperiod, and

12 compliance with water quality standards.

13 Hydroperiod. That federal government report talks

14 about hydroperiods. That is a big issue in the

15 Everglades, the big issue.

16 We will prove that in this case when we get there,

17 whenever it is. We will show that as a matter of fact

18 that that is the problem in the Everglades, and now the

19 government is dealing with a new plan where they are

20 beginning to recognize it.