1 STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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 21, 1994

20 (10:00 A.M. - 1:50 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 (via telephone)

GARY PERKO, ESQUIRE

5 CAROLYN RAEPPLE, ESQUIRE

Hopping, Boyd, Green & Sams

6 123 South Calhoun Street

P. O. Box 6526

7 Tallahassee, Florida 32314

(904-222-7500)

Representing Petitioners, Florida Sugar Cane

9 League, Inc., and United States Sugar

Corporation:

WILLIAM L. HYDE, ESQUIRE

11 Earl, Blank, Kavanaugh & Stotts

Suite 350

12 215 South Monroe Street

Tallahassee, Florida 32301

13 (904-681-1900)

14 -and-

15 WILLIAM L. EARL, ESQUIRE

MARK KOBELINSKI, ESQUIRE (via telephone)

16 Earl, Blank, Kavanaugh & Stotts

One Biscayne Tower, Suite 3636

17 Two South Biscayne Boulevard

Miami, Florida 33131

18 (305-358-3000)

19 Representing Petitioners, Florida Fruit and

Vegetable Association, Lewis Pope Farms,

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

Hundley Farms, Inc.:

KENNETH L. HOFFMAN, ESQUIRE

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

Suite C

23 2700 Blair Stone Road

Tallahassee, Florida 32301

24 (904-877-0099)

1 APPEARANCES, CONTINUED:

2 Representing Intervenor, The United States

of America:

SUZAN HILL PONZOLI, ESQUIRE

4 THOMAS A. WATTS FITZGERALD, ESQUIRE

Assistant United States Attorney

5 Southern District of Florida

Third Floor

6 99 Northeast 4th Street

Miami, Florida 33138

7 (305-536-4425)

8 -and-

9 STEVE MC FARLAND, ESQUIRE (via telephone)

MIKE REED, ESQUIRE (via telephone)

10 United States Department of Justice

Environmental & Natural Resources Division

11 General Litigation Section

Room 879, 601 Pennsylvania Avenue (20004)

12 P. O. Box 663

Washington, D.C. 20044

13 (202-272-4016)

14 Representing Intervenor, Florida Department of

Environmental 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

Schnobrick & Kaufman, Ltd.

22 400 International Place

100 Southeast Second Street

23 Miami, Florida 33131

(305-539-7222)

-and-

1 APPEARANCES, CONTINUED:

2 JOAN LAWRENCE, ESQUIRE (via telephone)

VALERIE BOYD (via telephone)

3 Assistant General Counsel

South Florida Water Management District

4 P.O. Box 24680

3301 Gun Club Road

5 West Palm Beach, Florida 33416-4680

(407-686-8800)

Representing Intervenor, Florida Wildlife

7 Federation:

8 DAVID GUEST, ESQUIRE (via telephone)

LORI ERICKSON, ESQUIRE (via telephone)

9 111 South Martin Luther King, Jr., Blvd.

P.O. Box 1329

10 Tallahassee, Florida 32302

(904-681-0031)

* * * * *

ALSO PRESENT:

JEFFREY J. WARD (via telephone)

* * * * *

INDEX

ITEM PAGE

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

HEARING CONCLUDED . . . . . . . . . . . . . . . . . . 153

CERTIFICATE OF REPORTER . . . . . . . . . . . . . . .154

* * * * *

1 PROCEEDINGS

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

3 AT WHICH TIME MS. BOYD, MR. GREEN, AND MR. WARD WERE NOT

4 PRESENT.)

5 HEARING OFFICER: Hello?

6 TELEPHONE OPERATOR: Hello. This is the AT&T

7 conference, Mr. Menton.

8 HEARING OFFICER: Yes, ma'am.

9 TELEPHONE OPERATOR: Everyone is on the line except

10 Mr. Lehtinen. I reached no answer at that number.

11 HEARING OFFICER: Okay.

12 TELEPHONE OPERATOR: Would you like a roll call?

13 HEARING OFFICER: Yes.

14 TELEPHONE OPERATOR: One moment. Thank you for

15 holding, everyone. I'd like to take the roll call now.

16 Lori Erickson?

17 MS. ERICKSON: Here.

18 TELEPHONE OPERATOR: Joan Lawrence?

19 MS. LAWRENCE: Here.

20 TELEPHONE OPERATOR: Valerie Boyd? Mark Kobelinski?

21 MR. KOBELINSKI: Here.

22 TELEPHONE OPERATOR: Mr. Reed and Mr. McFarland?

23 MR. REED: Here.

24 MR. MC FARLAND: Here.

25 TELEPHONE OPERATOR: Jeff Ward?

1 MR. WARD: Here.

2 TELEPHONE OPERATOR: David Guest?

3 MR. GUEST: Here.

4 TELEPHONE OPERATOR: Ms. Valerie or someone

5 holding for her?

6 MS. LAWRENCE: Yes, Valerie is here.

7 TELEPHONE OPERATOR: If you need further assistance

8 call 800-232-1234.

9 HEARING OFFICER: Operator, could you try

10 Mr. Lehtinen back in a few minutes to see if you could

11 add him on?

12 TELEPHONE OPERATOR: Yes, I will.

13 HEARING OFFICER: Thank you.

14 (WHEREUPON, MS. BOYD LEFT THE HEARING.)

15 HEARING OFFICER: Ms. Valerie just dropped off.

16 I'll have to call her back.

17 MALE VOICE: What is the case number, Operator?

18 TELEPHONE OPERATOR: Number is 800-232-1234.

19 The conference number is WR27417. Thank you for using

20 AT&T.

21 HEARING OFFICER: Thank you. We'll start off by

22 identifying the parties who are present here in

23 Tallahassee, beginning with petitioners, the

24 Cooperative.

25 MS. RAEPPLE: Yes, Carolyn Raepple, on behalf of

1 Sugar Cane Growers Cooperative of Florida, Roth Farms,

2 Inc., and Wedgworth Farms, Inc., Carolyn Raepple and

3 Gary Perko, Hopping, Boyd, Green and Sams.

4 HEARING OFFICER: And for the League?

5 MR. EARL: Bill Earl, representing Florida

6 Sugar Cane League and United States Sugar Corporation.

7 HEARING OFFICER: I have received a notice of

8 withdrawal from New Hope South, Inc. They are no longer

9 a party to this proceeding.

10 MR. EARL: That's correct, and Mr. Hyde is also

11 here.

12 HEARING OFFICER: Fruit and Vegetable Growers?

13 MR. HOFFMAN: Ken Hoffman. Including the other

14 named parties of the fruit and vegetable, Ken Hoffman,

15 Oertel, Hoffman, Fernandez and Cole.

16 HEARING OFFICER: For the South Florida Water

17 Management District?

18 MR. NETTLETON: Paul Nettleton.

19 HEARING OFFICER: Okay. For the Untied States

20 Government?

21 MS. PONZOLI: Suzan Ponzoli, and with me is

22 Tom Watts Fitzgerald.

23 HEARING OFFICER: And for Department of Environmental

24 Protection?

25 MR. KILLINGER: Lee Killinger.

1 HEARING OFFICER: Okay. Those are all parties

2 that are here in Tallahassee. Anybody else who needs

3 to be identified on the phone?

4 All right, let's get started then. Mr. Lehtinen

5 is not on the phone, as I understand it. Has anybody

6 heard from him? Does he intend to be part of this

7 telephone conference call? Anybody know?

8 He was on the phone when we had scheduled this,

9 so I'm sure that he was aware of the hearing, and the

10 operator will try to add him on if we can reach him,

11 but we're going to go ahead with the hearing now.

12 The hearing was originally set up to discuss

13 issues that may have come up in terms of the exchange

14 of the witness list, the first 30, and any additional

15 lists.

16 There are a couple of other matters that are

17 pending that we need to take care of, at least that

18 they are still pending so far as I know.

19 The first has to do with the Cooperative's

20 request for access into the Refuge and into the Park.

21 That was filed back on January 7th.

22 At the last hearing we continued that over until

23 today. I did receive late yesterday afternoon a

24 response from the federal government which indicates

25 that that issue has not been resolved. I have been

1 through that response, and I think the first thing we

2 need to do this morning is see if we can resolve this

3 issue once and for all.

4 Before, no resolution since?

5 MS. RAEPPLE: No.

6 HEARING OFFICER: Okay. All right. Let me make a

7 couple of points, and I'd like to get responses from

8 both.

9 MR. NETTLETON: Mr. Hearing Officer, before we go

10 to that issue I think it might be appropriate to

11 address the witnesses issue first. I know that may be

12 a little more complex, but I think it permeates this

13 whole issue, because the whole entry issue deals with

14 something we plan to raise with regards to the

15 designation of new witnesses at this stage.

16 HEARING OFFICER: Okay. Well, I'm not sure what

17 you mean by the witnesses.

18 MR. NETTLETON: The issue of the disclosures

19 that you required on the 30 witnesses and what occurred

20 as a result of that.

21 HEARING OFFICER: Okay. All right. Anybody have

22 any objection?

23 All right. The other issues as I understood them

24 for today deal with the motion for prehearing conference

25 which was filed by the District, and that's a

1 different matter than the witness list.

2 MR. NETTLETON: It is different.

3 HEARING OFFICER: It kind of all comes together

4 at some point, I guess.

5 And I think those were the only other two I have.

6 I know Mr. Killinger has filed objections to subpoenas

7 regarding some witnesses, but I'm not sure that's ripe

8 for resolution today or even whether there was a...

9 MR. KILLINGER: It's not, Your Honor, and I

10 think, I have already talked to Gary Sams about it,

11 and I think we will probably be able to get all that

12 worked out without the necessity of a hearing.

13 HEARING OFFICER: Very good. Those are the only

14 issues that we really need to resolve today? Is that

15 correct? Is there any other that has come up?

16 Are there any remaining issues as a result of the

17 withdrawal of New Hope South?

18 At the time of our last hearing most of the

19 parties had not had an opportunity to review the

20 settlement agreement, and there was some indication

21 that there may be a need to review that and discuss

22 the implications for the purposes of this proceeding,

23 but nobody has filed anything other than the notice

24 of withdrawal.

25 I don't know that it impacts our preparation efforts

1 in any way.

2 No changes in that regard? Okay. All right.

3 Mr. Nettleton, do you want to go ahead?

4 MR. NETTLETON: Mr. Hearing Officer, I'd like to

5 address two of the three issues, and I'll leave the

6 entry issue for the United States to address directly,

7 since that does not directly involve us.

8 With regard to the two issues, there were two of the

9 four points we raised two weeks ago, and that was the

10 trial witness list we wanted to try to limit to 30,

11 which we thought...

12 TELEPHONE OPERATOR: Excuse the interruption.

13 Mr. Menton?

14 HEARING OFFICER: Yes.

15 TELEPHONE OPERATOR: Valerie Boyd is on the call,

16 but she can't talk. She can only listen. There's

17 something wrong with her speakerphone.

18 (WHEREUPON, MS. BOYD ENTERED THE HEARING.)

19 There's no microphone on the speaker.

20 HEARING OFFICER: Okay. Ms. Boyd, we'll assume

21 you will send messages by smoke signal if we need them.

22 MR. NETTLETON: The two points we thought had

23 actually been resolved to some extent two weeks ago

24 was the witness list being limited to 30, with the

25 understanding there was the ability to provide a second

1 list if you couldn't fit everybody within the 30, and

2 the submission of this pretrial conference order

3 issue, which you have set a hearing for February 11th

4 on.

5 As I think the parties on this side of the table,

6 as we represented to you two weeks ago, have sat down

7 and diligently attempted with great effort to eliminate

8 the witnesses from our list, we came down to a list of

9 30. It is a preliminary list. We wanted to see the

10 petitioners' list to see if that created problems for

11 us, whether we needed to move people around.

12 We did not provide any physical secondary list,

13 although we have advised the petitioners early in the

14 week at the same time we exchanged the 30 list that

15 we were working on that, and we gave them the names of

16 the people we were considering on that, which were

17 less than 10. There were no new people added from our

18 side on either list.

19 And we were still trying to eliminate additional

20 witnesses from the first list, so we could move people

21 from the second list to the first and hopefully

22 eliminate the second list ultimately.

23 We have completed, we have not completed that at

24 this point.

25 At the same time we received a letter from the

1 petitioners giving us their two lists, and I don't know

2 if that was filed with Your Honor or not.

3 HEARING OFFICER: Let me, so everyone knows what

4 I have, at this point I have received a respondents'

5 list that has the 30 names on it. But I don't think I

6 have received, I'm trying to recall, I don't think I

7 have received anything further from any other parties

8 regarding the witness lists.

9 Some of the staff may be in the Clerk's Office

10 if it's been filed. I think there was...

11 MR. EARL: We have it for you today. We have...

12 HEARING OFFICER: Has it been filed yet? Do you

13 know?

14 MR. EARL: No, we haven't filed. We wanted to

15 discuss with counsel, we have had serious discussions

16 as late as yesterday afternoon, and we filled out

17 both lists and have some further deletions to talk to

18 you about, if I may.

19 HEARING OFFICER: Okay. Let me just see if I

20 understand how this procedure has come down.

21 On behalf of the District, the witness list that

22 you submitted was on behalf of the District and the

23 federal government?

24 MR. NETTLETON: And the state.

25 HEARING OFFICER: And the state.

1 MR. NETTLETON: And the environmentalists.

2 HEARING OFFICER: And the environmentalists as

3 well. Okay. So that includes all proponents of the

4 plan?

5 MR. NETTLETON: That was the intent. That's how

6 we understand we were required to do it.

7 HEARING OFFICER: Okay. Mr. Guest, that's your

8 entire witness list, too, right?

9 MR. GUEST: That's right.

10 HEARING OFFICER: Okay. Now, Mr. Earl, the list

11 you just gave me, this is for both the League and the

12 Coop and the Fruit and Vegetable Growers? Is that

13 correct?

14 MR. EARL: The League, The Coop, U. S. Sugar and

15 I believe the Fruit and Vegetables. No?

16 MR. HOFFMAN: We didn't have a problem with their

17 experts, but I didn't, I don't feel it's correct that

18 we should lose my party witnesses.

19 I have three farmers in the Fruit and Vegetable

20 Association. I had asked, because most of the meetings

21 have dealt with the scheduling and that kind of thing, and

22 I didn't see the necessity to attend for all that time.

23 I talked to the people on the petitioners' side,

24 and they understood that people like Mr. Schlechter,

25 I did not think I should lose them as witnesses, because

1 they are not actually witnesses.

2 HEARING OFFICER: Well, nobody is losing anything

3 at this point. I think the important thing though is

4 for everybody to get the witnesses out on the table,

5 so that we know who they are, and that they can be fit

6 into the discovery schedule as appropriate.

7 So I'm not saying you're going to lose anybody.

8 I just want to make sure you disclose who they are and

9 that everybody knows who they are, so that they can be

10 deposed, and if necessary, and just make sure that

11 everybody has an opportunity to understand what's going

12 to happen at the final hearing.

13 MR. HOFFMAN: Well, with respect to the Fruit and

14 Vegetable Growers, there's Mr. Botts for the Fruit and

15 Vegetable Association and Mr. Polk, Schlechter, and

16 Hundley. All have been deposed except Mr. Hundley.

17 Mr. Hundley is a member of the Coop also, for

18 various reasons, and the Coop listed him in a memo I

19 just saw that says supplemental witness list.

20 I don't know how that ties to the letter you

21 received, either, so I can't speak for them, but I

22 just want to be sure this list does not preclude me

23 from those four, three of whom have already been

24 deposed.

25 HEARING OFFICER: Okay. Well, I'm not going to

1 preclude you at this point, but what I'm going to ask

2 you to do is to make sure an amendment is filed to include

3 those two, so that everybody...

4 TELEPHONE OPERATOR: Excuse the interruption.

5 Mr. Green is now on conference.

6 (WHEREUPON, MR. GREEN ENTERED THE HEARING.)

7 HEARING OFFICER: Welcome, Mr. Green.

8 MR. GREEN: Thank you, Mr. Hearing Officer. I'm

9 sorry to interrupt.

10 HEARING OFFICER: What I want to make sure is that

11 this list is amended to reflect those people, so that

12 everybody is dealing with the full deck here. That's

13 a dangerous statement. I'm not sure that's accurate.

14 MR. FITZGERALD: Have you voluntarily recognized

15 that?

16 HEARING OFFICER: But, Mr. Hoffman, you understand

17 my point that if there are witnesses that are not on

18 here, get them on here, so that there are no surprises

19 as we move further on down the line.

20 Okay, so I will expect that will be done first

21 thing next week, so that we know exactly what we're

22 dealing with. Mr. Nettleton, go ahead.

23 MR. NETTLETON: Mr. Hearing Officer, again this

24 adding witnesses to the list, of course, is something

25 we hate to see, because we thought the whole exercise was

1 to start limiting the witnesses.

2 HEARING OFFICER: Well, I agree that that's what

3 we're trying to do, but I think we start first with

4 full disclosure of who everybody wants, and then we'll

5 go through it and try to narrow it down from there,

6 one step at a time.

7 MR. NETTLETON: Again my understanding was that

8 essentially all experts have been disclosed previously,

9 and we were in an attempt to try to narrow that, but

10 aside from that what we have, what petitioners have

11 filed here, as you have seen now, is a list of, first

12 list of 32 experts, which we now understand from our

13 meetings does not include rebuttal and possibly fact

14 witnesses.

15 I know they said it did not include their rebuttal

16 witnesses, which we believed that you had indicated

17 should be included, and we tried to include in our list

18 of 30.

19 There's a second list of 43 additional names

20 which did not include Mr. Hoffman's witnesses.

21 Since that time we have also received a letter

22 from the League's counsel with a lst of 23 additional

23 names who they wish to depose, some of whom are on this

24 list, and some of whom are not. A great deal of them

25 not, I believe.

1 HEARING OFFICER: On the list that was filed by

2 Mr. Earl this morning?

3 MR. NETTLETON: Right. Correct. There's a separate

4 letter that's been sent out on...

5 HEARING OFFICER: Again I didn't know if you were

6 talking about this list or your list.

7 MR. NETTLETON: I meant his list. I'm sorry.

8 MR. EARL: If I may, Mr. Hearing Officer, this is

9 the letter counsel is referring to. It is to try and

10 specify in addition to witnesses we would anticipate

11 calling the other depositions that we would, if I

12 may...

13 HEARING OFFICER: Okay.

14 MR. NETTLETON: In addition to that, Mr. Hearing

15 Officer, we were advised yesterday of I think five or

16 six additional names who don't appear on here that they

17 are asking us to obtain availability on now, and

18 apparently the list is even expanding, which is of

19 course what we were hoping to try to avoid.

20 As I said, we believe that this whole exercise

21 was intended to limit, focus, and streamline discovery,

22 and we feel what's occurred here by petitioners is

23 having the opposite effect.

24 What we see on the list now is I have counted up

25 I believe nine new named experts who have not previously

1 been disclosed on previous lists. We've gotten

2 six slots of unnamed people, two or three

3 descriptions of people they intend to retain sometime

4 in the future.

5 We have been trying by the way to get the names

6 of these people over the last week. Mr. Green yesterday

7 Faxed over disclosures on some of these people, I

8 don't think all of them. I think there are still some

9 unnamed people that they just have generic descriptions

10 on this list.

11 I can understand the length this case has been

12 pending and the stay that occurred that some experts

13 may disappear and so forth, and there may be a need to

14 substitute witnesses or something of that nature, and

15 I believe with regard to at least on of their witnesses,

16 Mr. Lee, they have indicated he's coming in to replace

17 Dr. Meyer, who is no longer with the firm. I don't

18 have a problem with that.

19 What we have a problem with is adding all these new

20 experts which are not as I see it added to new issues.

21 these are issues such as vegetative community changes

22 and so forth that have been in this case from day one.

23 They are adding new witnesses. They are doing

24 new discovery in the entry issues you will hear later

25 that relate to some of these new witnesses, and we think

1 that it's too late at this stage to be adding new

2 witnesses into this proceeding.

3 Back when we started this case there was an

4 agreed discovery and scheduling order that was entered.

5 At that time we had a date se for a final witness list

6 which was five months prior to the final hearing.

7 Now we're looking at a hearing that's three

8 months away, and what we're hearing here as well as in

9 response to our motion to set a prehearing conference

10 and set the issues and witnesses is that they don't want

11 to identify issues or witnesses until just before

12 trial, which to me is a step backwards from where we

13 were two years ago.

14 We are three months before trial, and under an

15 agreed scheduling order back in August of '92 they have

16 agreed to issue a final witness list five months before

17 trial. We would request at this time that in order to

18 avoid prejudicing this proceeding that ll of the new

19 witnesses they have added in the last period that have

20 not been disclosed be stricken from the list, absent

21 showing of good cause as to why they need to be

22 coming in at this late stage.

23 That would be our position on the witness list,

24 Your Honor.

25 HEARING OFFICER: Okay. I need to go back and

1 review some of the prior proceedings that we had on

2 the preparation of the preliminary witness lists that

3 were exchanged well over a year ago, but my recollection

4 talking off the top of my head was that we tried to

5 have full disclosure at that time of all possible

6 witnesses, and I think I tried to make it clear that

7 I didn't want to deal with additions to those witness

8 lists, and that if you were going to make some

9 additions you would have to come in and demonstrate

10 pretty clearly why they weren't disclosed originally.

11 I need to probably go back and refresh myself as

12 to exactly what transpired in the hearings, but that's

13 the way that I recall, or at lest that's what I was

14 trying to do.

15 I understand there has been some extended periods

16 during which the mediation has taken lace, and that

17 there may be some changes there, but I don't think that

18 that delay for mediation opens the door up to adding

19 new witnesses and new issues that weren't previously

20 offered in this case, so I'm going to be reluctant to

21 do that, absent some demonstration of the need to do it.

22 So having said that as a preliminary matter I

23 welcome a response from petitioners.

24 MR. GREEN: Mr. Menton, this is Bill Green. Can

25 you hear me?

1 HEARING OFFICER: Yes, sir.

2 MR. GREEN: Thank you. Ms. Raepple and Mr. Perko

3 will primarily be involved, and I'm not trying to double

4 up on this, but I would like to respond if I could

5 briefly to the concern you just raised.

6 I think if anything we have erred on the side of

7 full disclosure. That has been our intention. I

8 think we have done that.

9 The areas that we're discussing now are areas that

10 have arisen during the course of discovery, as one

11 might anticipate.

12 You will recall that all along during mediation

13 we have urged that our right to discovery not be

14 prejudiced nor development of the case.

15 What we're faced with now is a hearing that is

16 probably a month or two sooner than we thought we

17 would have before, and that's part of the problem.

18 But in terms of the new witnesses that we have

19 listed, some of those are replacement witnesses, and

20 Ms. Raepple can get into that later, if you'd like,

21 in areas that were in issue where the logical

22 development of the case indicated the need for further

23 attention on our part.

24 The second area was the ENR mercury sampling

25 issue, and as you know that came in very late, and we're

1 still in the process of dealing with that in an entry

2 concept.

3 Due to the fault of no one that issue came

4 into this case late.

5 The third area we're really talking about are very

6 brief witnesses who are more like standing witnesses,

7 farmers who will come in and discuss BMP practices, and

8 I never anticipated that, I would not call them

9 experts. They are very, they are important to us, but

10 they are not the type of witnesses that I believe your

11 earlier concerns were more focused at.

12 So largely I believe that these are absolutely

13 justifiable. We need to be able to bring these people on

14 to fairly address issue in this case.

15 We do not think that their testimony is

16 immaterial, irrelevant, or will be duplicative, and

17 in order for us to adequately prepare this case we

18 believe they are necessary. Thank you.

19 MR. KOBELINSKI: Mr. Hearing Officer, this is

20 Mark Kobelinski. I know that Mr. Earl will be discussing

21 this issue, but I would just remind the Court and

22 Mr. Menton that immediately before the stay the

23 parties were in the process of filing final witness

24 lists, and some of the parties filed witness lists just

25 a day or two prior to the stay, and other parties had not

1 as yet done so.

2 So we were in the process of doing just that,

3 identifying these additional witnesses, without any

4 objection at that time.

5 HEARING OFFICER: Mr. Earl?

6 MR. EARL: If I may, I too am going to go back and

7 look at the record. My recollection coincides with

8 what Mr. Kobelinski said, and we are trying to avoid

9 surprises here.

10 They have not even, if you're going to entertain a

11 motion to strike, I would move then to strike anyone

12 else other than the list they have given you.

13 We have given you a second list which we hope

14 to winnow down. They haven't given you one. So now

15 we're going to entertain motions to exclude anyone else

16 who's not on their list.

17 They haven't even given us a second list that

18 you instructed them to do.

19 MR. NETTLETON: We gave it to them orally at our

20 first meeting. I listed every single name on our

21 second list, which was a total of nine people.

22 MR. FITZGERALD: Mr. Earl was not present during

23 those discussions, but Mr. Burgess and Mr. Kobelinski

24 were. Mr. Kobelinski is on the phone, and he can

25 verify that.

1 MR. KOBELINSKI: Could counsel speak up? We

2 can't hear him.

3 MR. FITZGERALD: Mark, this is Tom Fitzgerald.

4 I just indicated you'd be happy to verify that during

5 the discussion of scheduling Mr. Nettleton did give you

6 the list of approximately 10 witnesses that would be

7 on respondent/intervenors' second list, should one of

8 those be formally committed to writing, and pointed

9 out that Mr. Earl might not have been aware of that,

10 since he was not at the meeting.

11 MR. KOBELINSKI: I think Bill Green can confirm

12 that we were told several names, and we were also told

13 that that list was not complete, so you are partially

14 correct, but Mr. Earl is also correct that we have

15 not received your full list, at least to our knowledge

16 and at least from what you have told us.

17 MR. GREEN: That would be my understanding.

18 MR. EARL: More importantly, Mr. Hearing Officer,

19 again we hope and are working and will continue to work

20 to eliminate names on this list, but we wanted to get

21 out anybody we might use.

22 Let me give you a couple of examples from our

23 first list, if I may, of people we have added.

24 Mr. Frank Coale, C-o-a-l-e. We have been looking

25 for an expert on BMPs. We have been unable to use the

1 University of Florida Agricultural Extension Service

2 and IFAAS, because, who are the experts who have

3 worked on this, because the District has retained them,

4 and they told us that unless they're subpoenaed they

5 will not provide any consulting or expert testimony

6 for the EAA.

7 Mr. Coale used to be with IFAAS, used to be in the

8 Belle Glade research center, and is now at the University

9 of Maryland. We have tracked him down, and he is now

10 available.

11 Let me give you another example. We have a

12 chemical treatment expert on that. We have a generic

13 title that has now been, the firm is Metcalf and

14 Eddie, that we have been working with, but that's an

15 engineering firm. If we're not going to get into

16 remedy stage, as you have suggested, we won't need them,

17 but again we wanted to disclose fully who we might be

18 using.

19 Another example we have listed is a water

20 quality peer review. In looking over the respondents'

21 case, our consultants went over there and told us we

22 have a need for a limnologist or water chemistry expert

23 to counter some of the witnesses they have listed, so

24 we put that down generically. That's the only one we

25 put down generically.

1 Mr. Green has one or two generically. We are

2 actively searching as we speak to find that individual

3 and retain somebody. We are discussing with people.

4 Again we have three months, and we want to disclose

5 that, and as soon as we have them aboard and they have

6 an opinion we will make them available.

7 but this, our purpose here is to fully disclose

8 anybody we might need.

9 If I can address the second list, our second list,

10 Mr. Menton, which is as counsel points out has 43 names

11 on it, again that's an effort to fully disclose, and

12 let me give you some examples.

13 We will, we can eliminate at least five of those

14 people, Mr. Menton, witnesses on their list. If they

15 will stipulate we can examine them on cross examination

16 beyond the scope of direct examination we wouldn't need

17 to have them on our witness list. But we don't have

18 such a stipulation.

19 So they are their witnesses, but we need them for

20 testimony they might not bring out on direct and we

21 probably know they won't bring out on direct.

22 That's one category. Another category, we have five

23 or six people, Mr. Menton, if I can give you an example,

24 Jack Jones on our second list. Dr. Jones is an

25 expert at identifying periphyton species. They have to

1 do it under a microscope. It's a very exacting science.

2 We have other experts to testify about periphyton

3 communities, but he has done the identification.

4 We put him on the second list. If we can get a

5 stipulation that the other experts can use the

6 identifications, we can eliminate him. We have five or

7 six like that.

8 But again, Mr. Menton, if we can get a stipulation

9 we can eliminate them, but we wanted to put them down

10 in the interest of full disclosure.

11 HEARING OFFICER: Well, and that's exactly what

12 this whole process is supposed to accomplish, is that

13 if everybody fully discloses the witnesses that they

14 believe they need to prove their case, then the

15 discussion as to setting up discovery for the witnesses,

16 etcetera, will hopefully lead to the elimination of

17 some of those witnesses if we can reach stipulations

18 that will cover their testimony.

19 If they are simply for some authentication of

20 testing results or something to that effect, there may be

21 a stipulation as to the tests can come in without having

22 to call them. That's exactly what I'm hoping that this

23 whole process can accomplish.

24 So I agree with you in the sense that, to list

25 those witnesses is necessary at this point, but I would

1 hope that through discussions with counsel you can

2 reach some agreement that it's not necessary to call

3 them, and that's what I'm looking to accomplish out of

4 this.

5 MR. NETTLETON: Mr. Hearing Officer, if I could

6 respond. One of the problems we have is we have

7 continually had a problem getting information about

8 what these witnesses are actually going to testify

9 about.

10 Now we have just learned today what Jack Jones is

11 going to testify about.

12 The disclosures we have on them are not that

13 specific to tell us he's only going to be doing

14 foundational evidence and so on and so on.

15 When we've been trying to get information for some

16 of these new people, which is what I'm really concerned

17 about, that we have never seen before, it was like

18 pulling teeth to try and get what they're going to

19 testify about and, or what their areas are and so

20 forth or where they worked.

21 If fact, at this point we still don't have names,

22 and they don't even know who some of the people are

23 yet.

24 This is the thing that I raised early on, is

25 raising of new people I this case at this stage,

1 three months before trial, which we think is prejudicial

2 to us. It's an increasing burden of discovery and

3 something they should have done. These are not new

4 issues here. They are issues that have been in the

5 case from day one.

6 HEARING OFFICER: Well...

7 MS. PONZOLI: Mr. Hearing Officer, if I may, I

8 think one of the more flagrant examples of expanding

9 is the Everglades historian, who remains as we sit here

10 unnamed. That work has to be completed, so where's the

11 name? We don't know. That's on the 32 designated list.

12 MS. RAEPPLE: Mr. Hearing Officer, if I may, the

13 categorical witnesses were put on the list in an

14 effort in good faith to fully disclose our intentions.

15 We are working as expeditiously as possible to

16 identify someone to fill that slot.

17 It's important to the issues of this case to have

18 a clear understanding of the history of the development

19 of the Everglades, and we are trying to find a witness

20 who can do more than simply give us documents.

21 Certainly the history is evident in some of the

22 documents, but we want someone to show you clearly the

23 history of the development and how that proceeded.

24 That's important. We are trying to identify a person as

25 soon as we can.

1 As Mr. Green pointed out, some of the witnesses, the

2 newly added witnesses, are replacement witnesses.

3 An example of that are the experts from Law

4 Engineering, Ed Downing and Tom Lodge. Those witnesses

5 are replacements for Mr. Herbert and Mr. Coale, who now

6 appear on our second list, but we have taken them off

7 our primary list, and the reason we have replaced them

8 is because during the course of this proceeding we

9 have determined we will be better able to demonstrate

10 the vegetative communities in the Everglades using

11 remote sensing.

12 Part of the reason for that is that the respondents

13 have put a remote sensing expert on their list. We

14 have not had an opportunity to depose him, but we are

15 trying to ensure we have comparable witnesses for

16 you to consider.

17 HEARING OFFICER: Well, the idea of replacement

18 witnesses doesn't cause me a whole lot of trouble, so

19 long as it's fully disclosed who they are replacing

20 and it's not somebody who has already been deposed and

21 you decided their deposition didn't go well and you

22 wanted to substitute somebody else. That's not

23 my idea of a replacement witness.

24 But if somebody is unavailable for if somebody has

25 not worked on the project to the extent it was

1 anticipated, I don't have a problem with replacing

2 them.

3 And, you know, I would assume there would not be

4 any problems on the other side, and if there is I'm

5 going to put the burden on your to show me why there

6 is difficulty with this.

7 But I do have difficulty with undisclosed generic

8 experts at this point. I think we've got to get, I

9 mean, we're not in a position where we can continue to

10 have witnesses to be identified in the future.

11 The witnesses have to be identified now. Discovery

12 has to be scheduled. We have to get going forward with

13 it.

14 MS. RAEPPLE: Mr. Hearing Officer, we have no

15 problem with establishment of appropriate cutoff dates

16 for identifying names, and I realize that's like to

17 be in the very near future, but we are working as

18 diligently as we can to identify the names.

19 We are at the same stage as when the stay was

20 imposed, which is identification of the final witness

21 list. We are prepared to do that.

22 We are working as diligently as we can to put a

23 name, and in the interest of full disclosure we put that

24 category on the list.

25 HEARING OFFICER: And certainly full disclosure is

1 essential, and I know that as the first step in this

2 process that there may be some other uncertainties,

3 but I was hoping we would be a little bit further along

4 in trying to get everybody to work things out.

5 (WHEREUPON, MR. WARD ENTERED THE HEARING.)

6 TELEPHONE OPERATOR: Mr. Hearing Officer, Jeff

7 Ward is on the line.

8 MR. FITZGERALD: Mr. Hearing Officer, we are engaged

9 in a rather bizarre showing. We have just heard

10 Coale and Herbert are no longer witnesses, and they

11 have only been dropped to the second list, but if you

12 read what they say about the second list and what they

13 have told the respondent parties is they plan to

14 call many of the people on the second list, and they

15 plan to argue to you they are necessary.

16 I deposed Coale and Herbert in December of 1992.

17 They are photo remote sensing specialists, if you

18 will, and they were developing the work on the vegetative

19 communities, and per their testimony at that time, and

20 I can file it if you'd like to, they identified the

21 person that would take their work, utilize it, and

22 discuss vegetative community changes.

23 Now you are hearing that these new people are

24 substitute witnesses.

25 The issues, as Mr. Earl has pointed out two hearings

1 ago, have been framed by the petitioners. They raised

2 the material fact challenge of whether there are or not

3 vegetative impacts in various pieces of property out

4 in the Everglades administered by the federal

5 government in reference to the SWIM plan. That was an

6 issue they framed two years ago.

7 Now they are telling you they are substituting

8 witnesses at this juncture, yet they are not dropping

9 witnesses that they tell you the new ones are

10 substitutes for, who we have deposed.

11 HEARING OFFICER: Well, that's one issue where I

12 said I do have a problem in substituting witnesses in

13 that kind of a situation.

14 If it's just because somebody's unavailable or

15 died or whatever, then certainly substitute witnesses

16 are appropriate, but if you are substituting somebody

17 who's previously, for somebody who's previously

18 been deposed and who was addressing the exact same

19 issues, I've got a little bit more problem with that.

20 MR. FITZGERALD: If I may add a few more facts to

21 that, Mr. Hearing Officer.

22 Within the last two or three days as we have been

23 working on the deposition schedule the United States

24 asked for Coale and Herbert to get their final work.

25 No where was it said to us, "Well, the other remote

1 sensing specialist, the satellite type, is going to

2 supplement them, and we'll drop them from the list."

3 Additionally, we are dealing with a situation

4 where you have been told, "Well, the other side has

5 satellite remote sensing." That's true. The District

6 identified in their very first list satellite remote

7 sensing. They have not been deposed yet, but some of

8 his work was deposed.

9 Another District employee who works in that area is

10 well known to the petitioners. His work has been

11 received through the documents request or totally

12 available.

13 The fact of the matter is they simply have changed

14 the type of expert they want to use, and I don't know

15 if it's because the photos didn't pan out to what they

16 wanted to address with the District's satellite

17 interpretive specialists, but that issue has been on

18 the table since the very first exchange of witness

19 lists.

20 That's where the shell game is coming in.

21 I might point out that the petitioners as a group

22 do have a remote sensing specialist, a satellite

23 specialist, in the League's list of witnesses. Some

24 pooling has to occur if we want to get this down to a

25 manageable size.

1 We understood that to be the spirit and the intent

2 of the rulings, and that's what we have diligently tried

3 to do.

4 But this constant adding of, well, they didn't

5 get to 30 on the first, and now they've got 43 on the

6 second list. There's 23 on the third list, and maybe

7 some more, and...

8 HEARING OFFICER: Twenty-three on the third list?

9 What third list?

10 MR. FITZGERALD: The letter of additional

11 depositions.

12 MR. EARL: Mr. Hearing Officer, if I may...

13 MR. FITZGERALD: We understand others may need to be

14 deposed, and we're not objecting to that per se, but

15 we certainly are not headed in the right direction in

16 the spirit of frank cooperation.

17 The discussions now about stipulations, that

18 particular area is potentially the subject of

19 stipulations and was not raised until this morning.

20 They want to justify failure to do what you have

21 asked the parties to do.

22 MR. NETTLETON: If I might add, Mr. Hearing

23 Officer, with regard to this replacement of the

24 witnesses, this is the first time we have heard that,

25 this morning, and in fact, as I said, so far as pulling

1 teeth, I had to cross examine Mr. Green to find out

2 these people were remote sensing. He did not want to

3 reveal that to me.

4 I had to ask about 10 questions to get him to

5 finally tell me that's what they would be here for,

6 and that's what we've been going through.

7 MR. GREEN: Mr. Hearing Officer, would you ask

8 Mr. Nettleton to speak up? I can't hear him, or

9 Mr. Fitzgerald.

10 MR. NETTLETON: Okay. I indicated, Bill, that

11 you were very reluctant during our discussions even to

12 tell me that your new people, the Downing, Lodge, and

13 so forth, were involved in remote sensing, and I had

14 to essentially drag that out of you, and you never...

15 MR. GREEN: I object to that characterization.

16 It's sort of irrelevant.

17 The point is you asked for the information, and

18 we gave it to you. We have fully disclosed, and I think

19 that there's a lot of heifer dust being spread around

20 the hearing room right now, and I think it's a waste of

21 time.

22 I agree with Ms. Raepple. We have honestly

23 represented to you that Coale and Herbert were using

24 techniques that apparently were not productive. We

25 have offered, and we will say now they have done no

1 further work since their depositions. They were

2 about to embark on a program that appears to be

3 ineffective in light of the satellite work, so we

4 shifted gears in order to bring to your attention in

5 this hearing the facts that we think you are going to

6 need to resolve these issues, and we have done it in

7 good faith.

8 HEARING OFFICER: All right. Well, let me say,

9 you know, I'm not involved in the day-to-day discussions

10 that are going on, so it's hard for me to get a feel

11 for exactly what's transpired, and to a certain extent

12 I'm reluctant to do so, but I think I have to.

13 At this point in the game full disclosure goes

14 beyond identifying witnesses, but there has to be a

15 clear communication as to what the witnesses are

16 intended to address and the subject areas that they're

17 expected to testify on.

18 We just can't be playing games with that. I

19 don't want that to be occurring.

20 We've got a lot of names on here on everybody's

21 list. I would assume that a lot of them are familiar to

22 people already, not necessarily familiar to me, but

23 I would assume those of you who have been working on

24 the case on a daily basis recognize a lot of them, and

25 if they're not familiar then the side who listed them

1 ought to be forthcoming in disclosing who the people

2 are, where they work, why they are listed on the witness

3 list, and the issues that they intend to address.

4 We're going to be more specific about that when

5 we get to the prehearing conference, and we can talk

6 about that in a minute, but I expect at that point to

7 have witnesses specifically tied to the various issues

8 in this case.

9 But even at this point in the proceeding I want

10 there to be a full disclosure as to who these witnesses

11 are and the areas in which they are expected to

12 testify, what kind of work they've been doing, and

13 I think that's essential to establishing priorities in

14 the discovery process.

15 So if that hasn't occurred in the past I expect

16 it to occur in the future, beginning immediately.

17 I don't know exactly how we can proceed with this

18 list, but I think maybe what we need to do is take a

19 recess and sit down and go through these lists,

20 determine who is new and who isn't new.

21 The people that ar new, I'd like to get an

22 understanding as to why they are now listed when they

23 weren't listed before.

24 It may be that there's a good explanation for it,

25 and it's appropriate to add them, but if there isn't a

1 stipulation between the parties that it's appropriate

2 to add them, then I'll sit here and listen to it, and

3 we'll figure out whether or not I'm going to let them

4 testify.

5 In terms of the second list, I think some of

6 those names as I understand it are people who work for

7 the District. I would assume there's no real

8 difficulty in understanding the areas that those

9 people are familiar with and what they're going to be

10 testifying to, but those that don't fit into that

11 category, if they haven't previously been deposed, I

12 think there needs to be a disclosure as to what they

13 intend to testify to and whether there's duplication or

14 whether it's new issues that we need to argue about.

15 And we'll argue about it.

16 But I'm a little bit disappointed we haven't made

17 a little more progress than we have.

18 And I think the appropriate way to address this

19 is to, I mean, we'll do it right now, today. I'll

20 give you an hour to sit down and try to figure out

21 which of these people on here there can be some

22 consensus reached on, and if there's no a consensus

23 then I'll listen to both sides, and we'll just take it

24 from there. I guess it's unavoidable. Mr. Hoffman?

25 MR. HOFFMAN: Your Honor, it's a little bit

1 different from what you are looking at, but I don't

2 think anybody misunderstood we wanted these four

3 witnesses. The League's attorneys I'm sure passed them

4 on to the other counsel, and my witnesses have never

5 changed, and they have been deposed, except for Mr.

6 Hundley, he took some depositions twice, and because

7 of the change or the stay he was not deposed, but

8 he was available.

9 But we have, I think those due process questions

10 we have been told to come down to 30 questions. Nobody

11 has told me they would entertain stipulating to

12 standing.

13 As I understand standing, it's a subject matter of

14 jurisdiction which can be raised at any time. So if

15 I'm not allowed to put on my witnesses because of the

16 30 cutoff...

17 HEARING OFFICER: Mr. Hoffman, as I said earlier,

18 I'm not cutting anybody off at 30. What I asked the

19 parties to do is to list 30 critical witnesses that

20 they knew they were going to have to call in their

21 case in chief, and then do a list of people that

22 they also feel are essential, and if you can show me

23 that they're essential, then I'm not sure as I said

24 before, I'm not going to cast the 30 number in stone

25 at least at this point until I give everybody an

1 opportunity to see who they feel they need and see what

2 duplication we can eliminate and what stipulations we

3 can reach.

4 If we have to go beyond 30, I don't have any

5 problem doing that, but I think as a preliminary step

6 and the first approach we have to take it's to figure

7 out who the 30 most essential are.

8 If it's clear that there are 45 essential, fine.

9 I'll sit there, and I'll listen to 45 witnesses.

10 But let's get started on this process. Let's go

11 through the 30 most essential and see if we can reach

12 some agreement, get the discovery going, and if

13 more than 30, then let's get them lined up for

14 discovery and proceed.

15 MR. EARL: Mr. Hearing Officer, Mr. Kobelinski

16 has been handling this, but I understand that there is

17 pretty close agreement or they made a lot of progress

18 on the discovery schedule. That's not a problem as I

19 understand it. Mr. Kobelinski, this is what he's

20 related to me.

21 We are ready to go through right now, we have

22 given you two separate lists. We are ready to go

23 through right now why we need those people.

24 I think most of these people, again correct me,

25 Mark, if I'm wrong, have been fit into a discovery

1 schedule.

2 MR. KOBELINSKI: Yeah, I think that all sides

3 will report to the Hearing Officer that the actual

4 discovery schedule itself is coming along in fine

5 shape, taking into consideration all this.

6 HEARING OFFICER: The discovery schedule is

7 addressed at just the first 30 or includes all these

8 other witnesses as well?

9 MR. NETTLETON: Mr. Hearing Officer, I think

10 that's a fairly accurate statement. We have

11 attempted, subject to our objections raised today about

12 adding of new people and the 43 additional witnesses and

13 so forth, we have attempted to schedule based on the

14 witness availability and so froth a schedule which

15 includes everybody on here.

16 There's still slots that need to be filled.

17 We started with five to seven people we named, mostly

18 new people they named that do not fit in on the

19 schedule, but we have been working on the schedule,

20 and that's pretty much in agreement where we're at

21 right now.

22 MR. KOBELINSKI: Mr. Hearing Officer, I think

23 you should understand that a number of these witnesses

24 both on the respondents' list and our list have been

25 deposed, so we're really not dealing with so far as

1 depositions all these people.

2 HEARING OFFICER: That was Mr. Kobelinski?

3 MR. KOBELINSKI: Yes.

4 MR. NETTLETON: Well, I would also state, I

5 glanced at our calendar coming up here, and I counted

6 one day or a couple of days where we've got seven

7 depos going simultaneously in order to accomplish this,

8 which is certainly not the best of all worlds from

9 our standpoint.

10 We have gone ahead and plugged those in, based upon

11 witness availability.

12 I have not gone back yet to try to figure out

13 resources so far as attorneys to cover the depositions.

14 If that becomes a problem in the future we may have

15 to come back to you with regards to that.

16 We're going to try to accomplish that. We have

17 slotted people in with the understanding we've got

18 more because of this list, and we were hoping that this

19 whole process that you had started two weeks ago was

20 going to cut down on discovery, and it doesn't appear

21 it has had that effect, which is what we're upset about.

22 MR. KOBELINSKI: Mr. Hearing Officer, just a moment,

23 to be fair...

24 HEARING OFFICER: Mr. Kobelinski again?

25 MR. KOBELINSKI: Yes. Mr. Nettleton will also

1 agree that there are several days where there are

2 only two witnesses being deposed, and some with only

3 one witness. A lot of that is driven by witness

4 availability, more so than the number of witnesses.

5 MR. NETTLETON: I don't necessarily dispute that

6 in the case.

7 MR. HYDE: I think there are a couple of interesting

8 points to be raised now. I think that admission by

9 Mr. Nettleton really sheds a lot of light on their

10 implicit if not explicit claim of some prejudice in this,

11 and certainly if they have the opportunity to depose

12 them then I don't think they will be prejudiced.

13 And secondly if there is any complaint about the

14 number of depositions, the number of depositions being

15 taken and the amount that are taken at a given time

16 are driven in large part by the early hearing date

17 that the respondents insisted upon.

18 (WHEREUPON, MR. HOFFMAN LEFT THE HEARING ROOM.)

19 So they can't really claim on the one hand

20 it's a problem and on the other hand insist on the

21 hearing date as early as it is.

22 MS. PONZOLI: Mr. Hearing Officer, one problem

23 that we have resolved momentarily that you need to be

24 aware of, we have a whole slough of depositions that

25 may emerge as a result of this task force.

1 Our present resolution is I'm going to produce

2 certain key people who are central in the writing of

3 that report and let those depositions be taken.

4 I'm objecting to generally the whole task force

5 relevance, but I will allow the first depositions, and

6 we will join the issue if they take 13 to 18 more

7 depositions really necessary.

8 But there's potential for an enormous amount of

9 more depositions than are presently on the schedule.

10 HEARING OFFICER: Okay.

11 MR. EARL: One thing Ms. Ponzoli said is

12 accurate, but part of our burden, as the Hearing Officer

13 knows, is we are dealing with a four-volume SWIM plan.

14 We're dealing with an agency that has literally I

15 suppose agencies, hundreds of staff scientists.

16 I can show you on our second list there's three

17 names, for example, and I anticipated other names may

18 have to be added to our list, because they are not

19 producing these people.

20 There is a Sue Newman, Galen Miller, and Garth

21 Redfield. One is an outside consultant. The other

22 two are key people relating to work on the ENR and the

23 STAs the District is doing, and they are the most

24 knowledgeable people. They are not even, haven't even

25 listed them.

1 I think we're going to uncover other people, this

2 task force report, which is the federal objective

3 study which concludes the hydroperiod is more

4 important than nutrients, we're going to discover

5 other people that we're going to have to list.

6 We have a burden of delving into that SWIM plan

7 and all of those staff people, and we're going to find

8 people who they deliberately are not producing.

9 I wanted to alert the Hearing Officer to that.

10 The STAs are a prime example.

11 We have no desire honestly to expand this. We

12 are going to be ready to go to hearing when you set that

13 hearing date, and I don't want to expand it, but I do

14 not want to be deprived of the opportunity to delve into

15 those issues and find the people they are not producing

16 and do not want to testify at this hearing, and I'm

17 going to have to bring them to this hearing, so you

18 can hear some of the facts that maybe they don't want you

19 to hear.

20 I'm sorry, but we're going to have to do that, and

21 we're going to have to have discovery. There's no other

22 way to do that when you have agencies like that.

23 MR. NETTLETON: Well, Mr. Hearing Officer, I

24 disagree with that. There is another way, and they have

25 been doing it for the last two years, and that's they

1 have gotten essentially every document that has gone

2 through the District. They have reports of all of

3 these people. That's why they are on there. They know

4 what every one of them is going to say before they

5 depose them, or they wouldn't be deposing them.

6 I don't see the need to be taking 30 depositions,

7 searching around for some admissions that someone is going

8 to make during a deposition. It's a waste of everybody's

9 time.

10 HEARING OFFICER: Okay. Well, we're getting a

11 little bit unfocused here.

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

13 I think, I don't intend to dictate to people

14 how they conduct their discovery, but what I do intend

15 to do is make it clear that it's up to them to

16 prioritize discovery, because we have a limited time

17 within which to do it, and I want to make sure that

18 the witnesses who are going to testify are made

19 available, and if you choose not to depose those

20 witnesses and want to depose somebody else who's not

21 on the District's witness list as one of their

22 employees, that's your choice.

23 But I'm not going to be sympathetic to

24 complaints, "Well, we didn't get to depose their

25 expert they are calling at trial, because we were

1 deposing somebody else."

2 I mean, I'm not going to tell you how to conduct

3 your discovery. I want to make sure that the witnesses

4 that are going to be called are made available, and

5 then it's up to you to determine how you prioritize

6 your discovery, given the time frames we have.

7 To try to bring this thing back into focus, as I

8 understand where we are, Mr. Nettleton has simply

9 asked me to strike those witnesses who were not

10 previously disclosed on the earlier witness list

11 that were exchanged back a year or so ago, and at this

12 point I'm not sure exactly who those witnesses are.

13 Why don't we take about half an hour break. I

14 want you to go through those lists, figure out who

15 on these lists were not previously disclosed, see if

16 there is an ability to reconcile those, if you have

17 substitute witnesses or witnesses that are employed by

18 the District or some other basis upon which there is

19 no need to depose them.

20 If there are some additional ones, let's get it

21 out on the table as to why they're being added now and

22 why they weren't added before, and maybe there's no

23 objection to it, and we can must add them to the list and

24 fit them in the discovery schedule and take it from

25 there.

1 MR. FITZGERALD: Mr. Hearing Officer, that's

2 certainly an approach we can pursue, but I would

3 respectfully suggest that before we break to do that

4 we might want to address the entry and access

5 request, because that naturally affects our discussions,

6 because three or four identified are key to that,

7 and based on the results of the available documents we

8 will or will not need to look at.

9 HEARING OFFICER: That's fine. I think that may

10 be appropriate as well.

11 MR. KOBELINSKI: Mr. Menton?

12 HEARING OFFICER: Yes?

13 MR. KOBELINSKI: This is Mark Kobelinski. If

14 I could, I would just again remind the parties that

15 prior to the stay going into effect there were many

16 letters going back and froth as opposed to formal

17 disclosures where the parties identified additional

18 witnesses that would be added to a final list.

19 I am not at my office now, and I don't know if

20 counsel at the hearing there, Mr. Earl and Mr. Hyde,

21 have those letters from my side, and I don't know if

22 the other parties have my letters.

23 That is why right before the stay went into

24 effect a final list was being prepared by all parties

25 to go ahead and document any new witnesses.

1 I don't think that the League is in a position

2 to tell the Court which we have previously disclosed

3 and which are truly new witnesses that they have heard

4 of for the first time now.

5 HEARING OFFICER: Well, you know, I think at this

6 point I'd recognize that the lists were not final before,

7 and there were going to be some modifications, and I

8 don't have any problem with that.

9 I don't know that we have to go back and figure out,

10 "Well, this one was disclosed, and we were going to add

11 him," or "This one wasn't." We have to deal with

12 where we are in the case now, and I think the way to do

13 that is there are some that clearly were not on the

14 original list, and there may be the case that everybody

15 will agree to some of the substitutions or some of the

16 additional witnesses in lieu of some of the facts that

17 had come up, and if they haven't, you know, I'll listen

18 to both sides and make a determination. I'm not

19 necessarily going to make that determination based upon

20 whether they were listed in a letter as an essential

21 witness at some prior point in the case.

22 That may be a factor to consider, but it's not going

23 to be the concluding factor in my mind.

24 So I think there's some benefit of going ahead and

25 trying to do it today while we have everybody here.

1 We need to get it going. If there are some that

2 we have to go back and look up and see how they got on

3 the list or whatever, we can do that, but I think, I

4 want to get this thing moving so that we have some

5 resolution on some of the disputes that are in

6 existence.

7 So I think there is a benefit of trying to do that

8 today.

9 MR. NETTLETON: Mr. Hearing Officer, let me

10 clarify one point on that. Everyone can go back and

11 check their own records.

12 As I recall before the stay went into effect

13 there was a requirement we file final witness lists on

14 or about July, a couple of days before the actual stay or

15 a week or so before the stay went into effect in

16 mid-July. We filed out final witness lists at that time

17 in compliance with your order, and in any event we have

18 not from our side added any additional witnesses from

19 the previous disclosures, from preliminary lists.

20 So aside from that I am aware of a letter that

21 Mr. Kobelinski did provide where they named during, I

22 don't know at that time or earlier, where they named

23 additional, a couple of additional people that would be

24 added, and I know who those people are. Only one of

25 them appears on the list, and the other one does not.

1 I could go through right now and tell you which

2 are new witnesses, but I don't know if you want to

3 go through the entry at this time.

4 HEARING OFFICER: Yeah. Let's go back to the entry

5 issues, and then we'll take a break, and if you have

6 the memory to go through and say the ones that you

7 don't believe are on there, then sit down with them

8 and see if we can figure out exactly who they are and

9 why they are on there, and then we'll come back and

10 take it up if we have to.

11 MR. NETTLETON: I actually looked, so I've got

12 the ones that are named.

13 (WHEREUPON, MR. HYDE LEFT THE HEARING ROOM.)

14 HEARING OFFICER: Okay. On the access issue,

15 let me make a couple of points preliminarily and then

16 get some responses from the parties.

17 I think that the U. S. response correctly pointed

18 out that at the time we set up the original access

19 procedures there was a great deal of effort put into the

20 process, and I also tried to make it clear that at that

21 point anybody who wanted access should coordinate their

22 access around the visits that were being set up then.

23 (WHEREUPON, MR. HOFFMAN LEFT THE HEARING ROOM.)

24 I do remember trying to emphasize that I would

25 not lightly grant access again in the future if there was

1 an opportunity to have conducted that access in the

2 past.

3 In reviewing the motions for new access that was

4 filed on behalf of the Coop, there was not a discussion

5 in there as to why the access was not or why the

6 previous access did not include the vegetation

7 assessments that are being sought now.

8 So that's one thing that struck my immediately, is

9 why wasn't this done before, and why do we have to go

10 back and revisit that now.

11 The second aspect to that deals with some of the

12 issues that we're talking about this morning, is in the

13 U.S. response there was an indication that this may

14 result in new witnesses.

15 (WHEREUPON, MR. HYDE ENTERED THE HEARING ROOM.)

16 Again I'm concerned about setting precedent in this

17 case of going back and revisiting the issues that were

18 fully argues and briefed in the past and opening up new

19 doors and new discovery needs, etcetera.

20 At some point we have to draw an end to some of

21 these things, and I made it clear early on during the

22 first access discussions that everybody should take

23 stock of their case and their needs and try to resolve

24 all those things while we could, and in that regard there

25 was always that outstanding issue as to my authority or

1 jurisdiction to order access into the Park, given all

2 the Department of Interior requirements, etcetera.

3 We never had to specifically address this, and

4 I'm concerned about getting into this now for fear that

5 we may be opening a whole new can of worms and

6 legal issues that will sidetrack us from the main focus

7 of the case.

8 Now having expressed those concerns, I do also

9 recognize that the condition of the Park and the

10 condition of the Refuge are very critical issues in

11 this case, and I'm concerned that there's a full

12 opportunity for those who are challenging the plan to

13 understand exactly what the condition is and what the

14 alleged ramifications are of the nutrients that have

15 been making their way into the Refuge and into the Park.

16 In that regard I have some concerns that because of

17 the nature of the Park and the restrictions on access

18 that it does severely limit the ability or does

19 restrict to some degree anyway the ability of those

20 contesting the plan to fully explore the present

21 conditions and therefore understand what they're

22 dealing with.

23 So I recognize the plight of the petitioners on the

24 one hand, but I also am concerned that I don't want to

25 establish a precedent for going back and revisiting issues

1 that we have fully discussed in the past and that we,

2 you know, that I tried to make clear for all parties to

3 do what was necessary while they had the opportunity

4 for access.

5 So having expressed those matters I'll give you

6 both an opportunity to respond to it.

7 Ms. Raepple, you can go first.

8 MS. RAEPPLE: Mr. Hearing Officer, our request

9 for entry is related to the work we are having done

10 by Law Environmental, Tom Lodge, and Ed Downing. They

11 are experts who will be working on satellite imagery

12 remote imaging in the Everglades Protection Area.

13 Could we have gotten into the Park and the

14 National Wildlife Refuge prior to this time we would

15 have, but of course as you know there are limitations

16 to our ability to get into the Park, and during the

17 stay we did not do so, and we have come to you as

18 quickly as we could when the stay was lifted.

19 At the time of the original entry back in

20 August, 1992, when this issue was discussed, Bill Green

21 on behalf of the Cooperative indicated that he did not

22 at that time believe there was a need, but he did

23 reserve the right in the future to come back to you

24 if a need was perceived.

25 That need has now been perceived by the Cooperative.

1 As I pointed out earlier today, the District

2 does have a remote sensing on their list. We have not

3 yet had an opportunity to depose that witness, and we

4 don't know what that witness is going to say.

5 But in all fairness we have deposed and determined

6 we have a need to have comparable evidence to the witnesses

7 on their list, and we have identified such witnesses and

8 retained them and are willing to go forward as soon as

9 possible, and we are able to get them, their work done,

10 their opinions complete in time for depositions to be

11 taken before the close of discovery.

12 We have indicated they will work in such a fashion

13 to get their opinions complete by March 15th.

14 The entry that the Cooperative is requesting is

15 not duplicative of the entry that has been obtained

16 by the Florida Sugar Cane League. That entry was

17 different in several respects.

18 Spacially it was more limited, but in the

19 intrusion and the time involved it was more expansive,

20 and let me explain.

21 The entry that the League had into the Park and

22 the Wildlife Refuge were limited to 16, 18 locations,

23 12 locations on historical transects and six additional

24 locations.

25 And my understanding is the purpose of that was to

1 determine the spacial trend if any of the constituents

2 in the waters and eh soils and also observing

3 the vegetation while they were in.

4 Spacially that' not sufficient. We need to cover

5 the entire Refuge and the entire area of interest, which

6 is the norther five mils approximately in the Park.

7 HEARING OFFICER: Well, I understand there's

8 differences between what was done in the past and

9 what's being requested now, but why couldn't what's being

10 requested now have been done in the past?

11 MS. RAEPPLE: Well, those sites would not have been

12 sufficient. Those were historical sites. We need to

13 identify sites that are discrete vegetative communities

14 of large enough size that they will be sensed by the

15 satellite imagery.

16 Even had we gone out on the prior entry we

17 could not have accomplished at stops that were being

18 made by the League. It would have involved additional

19 work.

20 The question was was the additional work done

21 then or the additional work done now.

22 HEARING OFFICER: Well, it might have involved

23 additional work but we could have done it all within

24 the same permits, and I guess that's the point that

25 Mr. Fitzgerald has raised, is that there is a process

1 that has to be gone through to get these permits, and

2 there is some question as to my authority to order

3 them, an that's one of the reasons why we wanted to

4 coordinate them all together at one tim.

5 Why couldn't you have done it back then? I guess

6 that's the point now I'm trying to raise, that I

7 tried earlier to make it clear to everybody that

8 because of the legal questions that we involved in

9 my authority to order it to begin with and also

10 because of the procedures that were involved in having

11 to get the permits I wanted everybody to try to

12 coordinate all that together so we wouldn't have to

13 revisit it.

14 Now we're having to revisit it, and I'm not

15 quite sure why we couldn't have done it all at one

16 time.

17 MS. RAEPPLE: Mr. Hearing Officer, the Cooperative

18 has been very forthcoming throughout these proceedings.

19 We have acted in good faith. We have not been playing

20 hide the ball.

21 All I can tell you is we did ont at that time

22 perceive the need. We have subsequently determined we

23 do have the need, and we have brought it to your

24 attention at the earliest opportunity.

25 HEARING OFFICER: Okay.

1 MR. FITZGERALD: Mr. Hearing Officer, we have

2 had discussion between counsel to try and address some

3 of the concerns that I have identified in my response,

4 and obviously those occurred before. I filed this late

5 yesterday, and I apologize for that.

6 But we were speaking right up until probably

7 half an hour or 45 minutes before I finally filed it,

8 so there are a few minor changes in what I said.

9 I indicated in my response that a group of

10 witnesses were still unidentified, and a few of those

11 were identified, I got the Fax, they literally crossed

12 in the Fax machines, where the coop did identify a few

13 additional witnesses by name.

14 But at the risk of sounding like Mr. Green, I

15 have to agree with the Hearing Officer. I think you're

16 right. The pleadings and our discussions have been

17 inadequate to justify doing this at this time.

18 When we went through the rather laborious process

19 that started actually in the spring of '92 and ran through

20 the actual commencement of the entry program, which I

21 think was December of '92, the first month, I mean,

22 I will not belabor the record, everybody remembers it,

23 it was a very difficult process, and I did not raise

24 in my pleading the thorniest issue, and that is your

25 authority to order access and so forth.

1 We had hoped to be able to avoid that to the extent

2 possible.

3 At the time, as I point out, we asked if anybody

4 else wanted to do anything else. As I have pointed

5 out this morning in discussion on the witness list...

6 HEARING OFFICER: Mr. Fitzgerald, I understand all

7 these points, because those are the ones I just raised,

8 but my question to you is obviously the condition of

9 what's going on in the Park and the Refuge are the key

10 issues, and don't the petitioners have somewhat of a

11 more difficult burden than they normally would in a

12 typical case of trying to get access and trying to

13 discovery whether clearly, what are the most critical

14 issues in this case?

15 MR. FITZGERALD: Well, I agree. They have a

16 hellacious burden to this point in time, based on several

17 factors.

18 (WHEREUPON, MR. KILLINGER ENTERED THE HEARING ROOM.)

19 The worst and most complicated is the intervention

20 of the Congressional mandate and the Endangered Species

21 Act and the legislation to establish the National Park

22 and underlying the Refuge existence.

23 HEARING OFFICER: Okay. You lost me on that. Where

24 is all this coming from?

25 MR. FITZGERALD: I have noted in one of the

1 footnotes the Refuge currently is at the height of

2 the migratory bird season, which is part of the reason

3 the Refuge is there.

4 Additionally I have been advised that the endangered

5 Everglades snail kit is now engaged in nesting

6 activity in the Refuge, which is one of the few remaining

7 preserves for that species.

8 Late yesterday after speaking with Ms. Raepple

9 I was able to get a hold of the Superintendent of the

10 Everglades National Park to see if there was an

11 additional concern in that enormous five-mile band of the

12 park that they would like to enter and was advised that

13 not less than two weeks ago he personally observed two

14 separate endangered species with that area, both the

15 snail kit and the endangered wood stork.

16 They also, the wood stork is just about, depending

17 on water levels, to start its nesting activity, but

18 it's already in the pre-nesting, foraging stage, and

19 the snail kit would be expected to be in the same

20 nesting phase as in Loxahatchee.

21 They are very sensitive to disturbances because

22 of their precarious state, and neither of the Resource

23 Managers reacted at all positively to the idea of, (A),

24 running a reconnaissance chopper there to pick sites out,

25 or, (B), doing a lot of activity on the ground that

1 might be within that range.

2 Very little limitation or specificity was provided

3 or could be obtained in response to their conclusions

4 to say where they want to go. To say they want to go

5 to the five-mile point or those most germane to the

6 site plan, you have 60 square miles, 144,000 acres.

7 MS. RAEPPLE: Mr. Hearing Officer, excuse me.

8 I hate to interrupt.

9 We have offered the reconnaissance flight at

10 substantial expense to my client, and we would identify

11 with specificity, giving the coordinate of where we

12 want to go in advance, so this discussion about the

13 size of the area we're talking about is irrelevant in

14 light of the offer that we have made.

15 MR. FITZGERALD: Anything further?

16 MS. RAEPPLE: No.

17 MS. RAEPPLE: Through late yesterday it was

18 the extent provided by the Coop. At that time it was

19 said they would provide multiple sites, far in excess

20 of the 10 or 20 that are in the Park and the Refuge that

21 they wanted, and they would put the burden on the

22 United States on the Resource Managers to decide whether

23 those sites then and over the period they would make

24 their entry would not disturb the endangered species or

25 otherwise engage concerns of those people.

1 I don't think that's the right place to put the

2 burden at this juncture.

3 HEARING OFFICER: Well, it sounds like they are

4 just giving you some options, so if there was some

5 difficulty that they are not aware of, I mean, they are

6 not going to be familiar with some of the sensitivities

7 that the Park people are going to be.

8 MR. FITZGERALD: In order to effect, I don't know

9 how long it would take to evaluate those, and I told

10 her I would also bring that to the attention of the

11 Resource Managers, but logically I don't see that provides

12 a great advantage.

13 TELEPHONE OPERATOR: Excuse me for interrupting.

14 Mr. Menton?

15 HEARING OFFICER: Yes.

16 TELEPHONE OPERATOR: This is the AT&T conference

17 operator. I have add Yvonne on behalf of

18 Mr. Lehtinen.

19 HEARING OFFICER: Thank you.

20 TELEPHONE OPERATOR: Thank you. She's on the line.

21 MR. FITZGERALD: If we had a true issue engaged here

22 I might be included to put some high level of burden on

23 the Resource Managers and their staff. But we get back

24 to the issue of what's the justification.

25 I can't get out of the Coop what these people are

1 going to be doing. They say they're going to be

2 ground truthing the data.

3 They could be preparing to try and cross or

4 otherwise refute the District's remote sensing

5 specialist, which I assume is what their photo guys

6 were trying for before, and sometime after December, 1992,

7 that did not work out, and incidently their experts

8 said ground truthing is required, so they knew in

9 December, '92, they would have to ground truth something,

10 or they plan to do some independent work.

11 We can't tell from the descriptions. I think they

12 need to explain very carefully and extensively what

13 these people will do and how it will be used in the case.

14 I'm not saying our expert won't or the District's

15 expert will not lay out certain vegetative changes or

16 historical changes based on his analysis, but we don't

17 know if there will be any disagreement on that, and

18 absent some sense there will be disagreement I and I

19 think my clients will be very reluctant to engage in the

20 kind of conduct that directly goes to mandates

21 statutorily from Congress, in part why that permit

22 system it there.

23 We would have no objection I believe to the

24 sharing of information and data. It may be they don't

25 have a dispute with our experts.

1 HEARING OFFICER: I think you are entitled to know

2 exactly what they intend to do, and I don't know if

3 that has been communicated or not. Are you telling me

4 that hasn't been?

5 MR. FITZGERALD: No. I cannot tell whether what they

6 really intend to do is to object to whatever

7 testimony Dr. Jensen gives or some totally new theory.

8 Mr. Earl pointed out in the earlier hearings...

9 HEARING OFFICER: I don't think you're entitled to

10 know what the conclusions are yet in terms of whether

11 it's going to refute some of the testimony or not,

12 but I think you're entitled to know what they intend

13 to do and the type of information they intend to be

14 gathering.

15 MS. RAEPPLE: Mr. Hearing Officer, I am at

16 somewhat of a disadvantage in knowing exactly all the

17 ways we will be using the information, because I have

18 not had an opportunity to discover the information

19 that will be provided by the District, by their remote

20 sensors.

21 I don't know if I have a dispute with what they

22 say. I haven't had the opportunity to hear their

23 testimony.

24 But I have told Mr. Fitzgerald what my experts

25 will be doing and using a land satellite imagery to

1 develop vegetative maps, and they will be ground

2 truthing the current vegetation, because it's the only

3 vegetation, and as you have pointed out this is critical

4 to many of these, both to causation, to remedy, to the

5 moderating provisions. The vegetative communities that

6 are in the Everglades Protection Area are critical to

7 may, and as I have told you I don't know what

8 more I can tell them.

9 MR. KOBELINSKI: Mr. Menton, this is Mark

10 Kobelinski. Although we are not a party to the entry

11 and access request, since we are consolidated with the

12 Coop we have an interest, and I have just two points to

13 raise.

14 Number one, with regard to seeing whether there is

15 a dispute with Mr. Jensen, who is the District or

16 respondent's expert witness on sensing, he is the

17 witness, one of several, that we were told we can only

18 depose among two days, and that is at the end of

19 February, so I don't think we are in a position to wait

20 and see if we have a dispute, because we have not been

21 able to depose him prior to this, and we are now told

22 we can't depose him until the end of February.

23 Number two, the other point is it's more of due

24 process or fairness. We have been restricted prior to

25 this suit and during this suit to a limited entry and

1 access to the Refuge and Park.

2 The District and the federal government scientists

3 have had free access both prior to this action and

4 throughout these proceedings. They were not limited to

5 just the entry and access, and it's our understanding

6 from both depositions and public hearings that Mr.

7 Jensen and other scientists have had free access to

8 these areas to do just this, while we were being

9 restricted to small, specific dates and places, and that

10 is not quite fair.

11 MR. FITZGERALD: Mr. Hearing Officer, in the data

12 provided to the United States from the League after

13 entry into the Everglades National Park has extensive

14 notations on vegetative communities.

15 What they have not established is why did they

16 wait until now.

17 They are carping about then waiting until the

18 availability dates of Dr. Jensen, and yet they admit

19 they don't know if there is a dispute.

20 The problem is they have waited unit now, which

21 is the worst possible time for the resource protection

22 to do this. The Coop sits there with a straight face

23 and says, "We couldn't bring this up until now. It

24 only came up when the stay was lifted."

25 You looked at a pleading from them during the stay

1 asking them to give entry and access in another

2 portion of the EPA.

3 They were not shy about filing it, and now we have

4 heard Mr. Green this morning say their photographic

5 remote sensing vegetative work didn't pan out way back when

6 and Coale and Herbert have done nothing since their

7 depos, which was in the first and second week of December,

8 1992.

9 I find that a little bit hard to reconcile. What

10 we really have here is the situation where they are

11 telling us by letter of the 14th of January the final

12 opinions by their witnesses won't be available based

13 on this until March 15th, and that's if they get in by

14 the end of January.

15 They don't say final opinions of Erickson, Lodge,

16 and Downing. They say final opinions of witnesses.

17 We don't know where the data is going and who

18 else might have to be deposing at that juncture, but

19 then they have 11 witnesses they have told us

20 that have no final opinions until after that date

21 anyway.

22 We only have eight days of depositions left at

23 that time. They have pushed it to the absolute end

24 on the theory or the belief that there might be a

25 conflict, and I don't see it.

1 I don't see that as justified on the pleadings

2 and their rationale for not having asked right up

3 front.

4 As I told you in the pleadings, we sent specific

5 letters to the two parties, saying, "Do you want to do

6 anything else? Are you joining, going in?"

7 The League went in with some of their transect

8 flights by airboat. They transmitted large areas of

9 the Loxahatchee National Refuge. Any of this work

10 could have been done along the way.

11 It could have been done during the reconnaissance

12 phase in the Everglades National Park by the League.

13 They chose not to do it.

14 And that work extended over a year-long period,

15 and this would impose virtually no problem in the sense

16 of endangered species if it were done in mid-summer or

17 early summer, after the nesting periods are complete.

18 HEARING OFFICER: When are the nesting periods

19 complete?

20 MR. FITZGERALD: Late spring to early summer. I

21 would have to ask the experts. It's a floating period,

22 dependent in some respects on water stages and other

23 factors.

24 It's dictated by the biology of the ecosystem.

25 nesting success is dictated by the same factors.

1 MR. GREEN: Your Honor, excuse me. This is

2 Bill Green. I apologize for interrupting.

3 Mr., there are a lot of things that Mr. Fitzgerald

4 said that I disagree with about final opinions and all

5 that.

6 I think the bottom line is we did not know we needed

7 this information when the othe