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., and )

5 UNITED STATES SUGAR CORPORATION, )

-and- )

6 FLORIDA FRUIT AND VEGETABLE ASSOCIATION, )

LEWIS POPE FARMS, W. E. SCHLECHTER & SONS, )

7 INC., and HUNDLEY FARMS, INC., )

)

8 Petitioners, )

)

9 vs. ) DOAH CASE NOS.

) 92-3038

10 SOUTH FLORIDA WATER MANAGEMENT DISTRICT, ) 92-3039

) 92-3040

11 Respondent, ) (Consolidated)

)

12 and )

)

13 MICCOSUKEE TRIBE OF INDIANS, THE UNITED )

STATES OF AMERICA, FLORIDA DEPARTMENT OF )

14 ENVIRONMENTAL REGULATION, and FLORIDA )

WILDLIFE ASSOCIATION, )

15 )

Intervenors. )

16 ) _____________________________________________

HEARING BEFORE: HONORABLE J. STEPHEN MENTON

18 HEARING OFFICER

19 DATE: TUESDAY, MARCH 1, 1994

(2:37 P.M. - 3:34 P.M.)

LOCATION: LIBRARY, DESOTO BUILDING

21 1230 APALACHEE PARKWAY

TALLAHASSEE, FLORIDA

REPORTED BY: SUE HABERSHAW JOHNSON

23 CERTIFIED COURT REPORTER

REGISTERED PROFESSIONAL REPORTER

24 NOTARY PUBLIC

1 APPEARANCES:

2 Representing Petitioners, Sugar Cane Growers

Cooperative of Florida, Roth Farms, Inc.,

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

4 GARY PERKO, ESQUIRE

Hopping, Boyd, Green & Sams

5 123 South Calhoun Street

P. O. Box 6526

6 Tallahassee, Florida 32314

(904-222-7500)

Representing Petitioners, Florida Sugar Cane

8 League, Inc., and United States Sugar

Corporation: (ALL VIA TELEPHONE)

WILLIAM L. EARL, ESQUIRE

10 RICK J. BURGESS, ESQUIRE

Earl, Blank, Kavanaugh & Stotts

11 One Biscayne Tower, Suite 3636

Two South Biscayne Boulevard

12 Miami, Florida 33131

(305-358-3000)

13 -and-

WILLIAM L. HYDE, ESQUIRE

14 Earl, Blank, Kavanaugh & Stotts

Suite 350

15 215 South Monroe Street

Tallahassee, Florida 32301

16 (904-681-1900)

17 Representing Intervenor, The United States

of America:

SUZAN HILL PONZOLI, ESQUIRE

19 Assistant United States Attorney

Southern District of Florida

20 Third Floor

99 Northeast 4th Street

21 Miami, Florida 33132-2111

(305-536-5477)

1 APPEARANCES, CONTINUED:

2 Representing Intervenor, The United States

of America, continued: (ALL VIA TELEPHONE)

JACK LITSHULTZ, ESQUIRE

4 STEVE MC FARLANE, ESQUIRE

United States Department of Justice

5 Environmental & Natural Resources Division

General Litigation Section

6 Room 879, 601 Pennsylvania Avenue (20004)

P. O. Box 663

7 Washington, D.C. 20044

(202-272-4016)

Representing Intervenor, Florida Department of

9 Environmental Regulation: (ALL VIA TELEPHONE)

10 LEE M. KILLINGER, ESQUIRE

Assistant General Counsel

11 Department of Environmental Protection

640 Twin Towers Office Building

12 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

13 (904-488-9730)

14 Representing Respondent, South Florida Water

Management District: (ALL VIA TELEPHONE)

PAUL L. NETTLETON, ESQUIRE

16 R. BENJAMINE REID, ESQUIRE

Popham, Haik, Schnobrick & Kaufman, Ltd.

17 400 International Place

100 Southeast Second Street

18 Miami, Florida 33131

(305-539-7222)

* * * * *

ALSO PRESENT:

PAMELA GARVIN

CATHY STARK (via telephone)

LISA HOGAN (via telephone)

* * * * *

1 INDEX

2 ITEM PAGE

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

4 HEARING CONCLUDED . . . . . . . . . . . . . . . . . . 48

5 CERTIFICATE OF REPORTER . . . . . . . . . . . . . . . 49

1 PROCEEDINGS

2 (WHEREUPON, THE HEARING COMMENCED AT 2:37 P.M.,

3 AT WHICH TIME MR. KILLINGER AND MR. LITSHULTZ WERE ABSENT

4 FROM THE TELEPHONE CONFERENCE CALL LINE.)

5 TELEPHONE OPERATOR: All right. Shall I take

6 roll call?

7 HEARING OFFICER: Please.

8 TELEPHONE OPERATOR: Ms. Ponzoli?

9 MS. PONZOLI: Yes. Let me get on the speakerphone.

10 TELEPHONE OPERATOR: Mr. Perko, Mr. Green?

11 MR. PERKO: Mr. Perko is here. Mr. Green is not.

12 TELEPHONE OPERATOR: All right. Mr. Nettleton?

13 MR. NETTLETON: Yes.

14 TELEPHONE OPERATOR: And Mr. Menton?

15 HEARING OFFICER: Yes.

16 TELEPHONE OPERATOR: Ms. Ponzoli?

17 MS. PONZOLI: Yes.

18 TELEPHONE OPERATOR: Mr. Reid?

19 MR. REID: Yes.

20 TELEPHONE OPERATOR: And Mr. Earl?

21 MR. EARL: Here.

22 TELEPHONE OPERATOR: Thank you. The I.D. number

23 is WR85527. Thanks again for using AT&T.

24 HEARING OFFICER: Lee Killinger, was he on the

25 line? And I didn't hear if Bill Hyde was on there

1 or not.

2 MR. HYDE: I am, Mr. Menton.

3 HEARING OFFICER: All right. Mr. Killinger has

4 just called our office on another line. Did somebody

5 write down that AT&T number so we can tell him to

6 call him and ask them to add him on?

7 MS. PONZOLI: Yes. WR85527.

8 HEARING OFFICER: Anybody else? Anybody else on

9 the phone who needs to be identified for the record?

10 MS. PONZOLI: I have with me Cathy Stark, and

11 Lisa Hogan, Mr. Menton.

12 HEARING OFFICER: All right. Anybody else need

13 to be identified for the record?

14 MR. REID: With Mike Reid is Steve Macfarlane.

15 HEARING OFFICER: Okay.

16 MR. HYDE: Mr. Menton, this is Bill Hyde. With

17 me is Rick Burgess, also.

18 HEARING OFFICER: Okay. Anybody else? Okay,

19 Mr. Hyde, was there anybody else you knew of that wanted

20 to be part of the call?

21 MR. HYDE: I'm sorry. I heard two voices at the

22 same time, Mr. Menton.

23 HEARING OFFICER: Was there anybody else that you

24 knew of that wanted to be part of this phone conference?

25 MR. HYDE: To my knowledge everybody is on it now,

1 although I think it was Ms. Ponzoli, one of your

2 attorneys, Mr. Litshultz or something like that?

3 MR. LITSHULTZ: I just joined the call.

4 MS. PONZOLI: You're on, Jack?

5 MR. LITSHULTZ: Yes.

6 MS. PONZOLI: Okay. We were getting ready to go

7 call you.

8 MR. LITSHULTZ: They just called me, so I got on.

9 HEARING OFFICER: Okay, who is this?

10 MR. LITSHULTZ: My name is Jack Litshultz.

11 That's l-i-t-s-h-u-l-t-z. I'm from Washington.

12 HEARING OFFICER: Okay. All right. Mr. Hyde,

13 what about Mr. Hoffman or Mr. Lehtinen or Mr. Guest?

14 MR. HYDE: We faxed notices to them last week to

15 ask them to call us up if they wanted to be included

16 in the conference call. We haven't heard anything from

17 them as of today.

18 HEARING OFFICER: Okay.

19 MR. HYDE: We tried to contact them otherwise.

20 I guess they just decided not to participate.

21 HEARING OFFICER: Okay, I did receive a copy of

22 correspondence that you sent out, so I have it for the

23 record. For the record we will assume since they did

24 not contact you that they chose not to participate in

25 the conference call today.

1 I believe that covers all the parties. Are there

2 any other parties who need to be identified?

3 We're waiting for Mr. Killinger to join us, and

4 then we'll proceed. Okay. Let's hold on a second

5 and see if they've gotten ahold of Mr. Killinger.

6 (WHEREUPON, THE HEARING WAS RECESSED FROM

7 2:40 P.M. TO 2:42 P.M.)

8 Mr. Killinger has been provided with the

9 information, and we'll just wait a minute and see if

10 he joins us. In the meantime let me just state what I've

11 received and reviewed today.

12 The hearing was called at the request of the

13 League in connection with their emergency motion for

14 clarification or rehearing.

15 I received a response in opposition to the emergency

16 motion from the U. S. Government, and then this afternoon

17 received a notice of filing in support of petitioners'

18 emergency motion which includes with it a copy of the

19 conceptual design for the Everglades protection project

20 dated February 15th, 1994. Those are the only

21 documents that I have received in connection with our

22 hearing today.

23 Anybody else have anything filed that may not have

24 made its way to me yet?

25 MR. KILLINGER: This is Lee Killinger. I have just

1 joined in the conference call. I did not file anything,

2 Mr. Menton, although I did review it and have received

3 it and concur with its comments.

4 HEARING OFFICER: Okay. Now that Mr. Killinger

5 has joined us let's go ahead.

6 This motion is addressed to some issues that have

7 come up at our hearing on February 11th where we had

8 discussed the status of the technical mediated plan

9 and whether or not it was actually part of this

10 proceeding or not. I believe at that time I had raised

11 the issue as to whether the technical mediated plan

12 should be considered settlement discussions and

13 therefore beyond the scope of discovery for purposes

14 of this proceeding and admissible at the final hearing.

15 As I recall what I stated at that time was that

16 I would view the technical mediated plan as protected

17 settlement discussions and not subject to discovery

18 and not admissible at the final hearing, absent

19 someone filing an appropriate motion and bringing to

20 my attention some reasons as to why that ruling was

21 incorrect.

22 Mr. Hyde had filed the motion for rehearing or

23 clarification of that, and I'll give him an opportunity

24 to speak directly to this motion.

25 I have reviewed your motion, Mr. Hyde. There is

1 no need to go back over that.

2 There are a couple of issues that come to my

3 mind right off the bat. The first I think is

4 appropriate for Mr. Hyde to address, and secondly I'd

5 like to hear from the District and the federal

6 government and the Department on the second issue that

7 I also have.

8 First I guess, Mr. Hyde, the key question is

9 to resolve this dispute is to get clarification from

10 you as to exactly what it is you're seeking to discover

11 that is reasonably calculated to lead to admissible

12 evidence.

13 In that regard I do have some question in my mind

14 as to how any of the discussions and studies, etcetera,

15 that are included within the technical mediated plan

16 are pertinent to a resolution of the issues regarding

17 the original SWIM plan that was adopted in March, '92,

18 which the District has continually affirmed as being the

19 plan at issue in this case.

20 Having said that, the question that continually

21 occurs to me and has come up several times in the past

22 and is one that I'd like to have addressed by the

23 District and the federal government is exactly what

24 is the role of the technical mediated plan, and this

25 is particularly I think pertinent in view of the

1 conceptual design which Mr. Hyde has submitted as an

2 exhibit to his motion today.

3 I guess the concern that I have is despite the

4 representations that have been made by the District on

5 several occasions that the only plan at issue in this

6 case is the SWIM plan adopted in March of 1992 that

7 appears to be that it is a parallel track going on

8 regarding the technical mediated plan and its

9 continuing evolution, and I just wonder exactly how

10 that fits into the scope of the proceeding that we

11 have.

12 It's an issue that we have thrown around several

13 times, and I just still don't understand exactly how

14 this is going to fit into the whole scope of our

15 proceeding.

16 So let me give Mr. Hyde an opportunity to respond

17 first, and then I'd like to hear from the federal

18 government and the District.

19 MR. HYDE: Mr. Menton, I think the basic premise

20 of our argument is that when you ruled that there could

21 be no discovery even as to the mediated technical

22 plan, you were overbroad in that respect, and that

23 your ruling should be limited simply to the admissibility

24 or nonadmissibility of the mediated technical plan.

25 I think Section 90.408 which speaks to compromise

1 and offers of compromise really only directs itself

2 to admissibility. It is not one of the identified

3 privileges that are discussed elsewhere.

4 HEARING OFFICER: Okay, Mr. Hyde, I have read your

5 motion and I understand your position on that. I

6 guess the question...

7 MR. HYDE: Having concluded that I think the only

8 limitation on discovery should be whether we are seeking

9 information that is relevant or reasonably calculated

10 to lead to relevant information, so I think that the

11 question you posed to me at the beginning of this

12 conversation is appropriate, and I think it can be

13 handled quite easily.

14 I think you can see from our notice of filing that

15 the mediated technical plan is in a funny sense almost

16 a moot document, because it's really been transformed

17 into and has a separate life now as a conceptual design

18 document dated February 15th of this year.

19 I think it shows to you once again that the

20 representations you have heard notwithstanding, there

21 is a different agenda here today, and that there are

22 different feelings about the appropriateness of the

23 adopted plan which is at issue and has been framed

24 by our pleading.

25 As you know, from the very first day we have been

1 arguing to you and have posited a central theme of our

2 case that there's a very significant component that

3 has been disregarded by the adopted plan, and that is

4 hydro period and the effects of hydro period.

5 And the mediated technical plan and now this second

6 document that has sort of emerged out of it and can

7 certainly be considered as its poisonous fruit is

8 reiterating that very problem, and it is a fundamental

9 problem of the adopted plan, so when you ask what are we

10 going to do with the discovery process, well, my answer

11 is it's very simple. We want to discover what's wrong

12 about the adopted plan, and inquiries along these lines

13 help us develop that line of reasoning.

14 It is central to our case, and merely because

15 the adopted, excuse me, the mediated technical plan

16 itself might technically be inadmissible doesn't mean

17 that the facts underlying that mediated technical plan

18 are themselves inadmissible.

19 HEARING OFFICER: Well, I guess the concern that

20 I have, Mr. Hyde, is a fear that we will lose focus

21 as to what is at issue in this case, and to a certain

22 degree I think that your point is well taken with

23 respect to understanding exactly what is in that

24 original plan and conducting discovery to test the

25 validity of the assumptions and conclusions that are

1 included in it, and I certainly do not mean to preclude

2 you from inquiring of witnesses as to what additional

3 studies have been conducted or what additional inquiry

4 has been conducted regarding the issues that are in the

5 SWIM plan and what new theories or conclusions they

6 have reached since the time they have met and

7 participated in the development of the original SWIM

8 plan, but I think my concern is that if we start

9 getting into specific issues regarding the conceptual

10 design and how that came about, it's really going to

11 sidetrack preparations for the final hearing in this

12 case.

13 I think that I'm very concerned that we have a

14 short time frame to get ready for the hearing, and

15 we can't lose focus of what this case is all about.

16 MR. HYDE: Well, I understand and appreciate

17 that concern on your part. I really think you should

18 really be directing that question, however, to the

19 other side, because I think they're the ones being

20 disingenuous to you in creating a different focus to

21 this proceeding.

22 But let's assume for the moment that the central

23 focus of this proceeding is, as you have repeatedly

24 ruled, the adopted plan. Well...

25 HEARING OFFICER: Well, I haven't repeatedly ruled

1 that. It is what I have been repeatedly told, and

2 I have nothing before me to go to the contrary.

3 MR. HYDE: Okay. Well, however you want to

4 characterize it it is clear this is what is at issue

5 in this proceeding at this time, and assuming that to be

6 the case then I think we are entitled to develop

7 through discovery a counter case as to that plan, and

8 any legitimate means that we can use to develop that

9 counter theory I think is appropriate for a discovery

10 mechanism, as long as it is relevant or reasonably

11 calculated to lead to relevant information.

12 We're not trying to rechange the focus of these

13 proceedings. We think in a funny sense it's really the

14 other side that's trying to do that, but the problem

15 here is we've got an adopted plan that has manifest

16 faults to it, and one of the primary ways that we can

17 demonstrate that is through discovery into the

18 mediated technical plan and its prodigy, which are

19 not privileged, or inadmissible under any set of

20 circumstances.

21 So we should be able to inquire into that, and

22 we should be able to develop our theory of the case

23 as to why the adopted plan is faulty for hydro period

24 and other related reasons. That's all we're trying to

25 do here.

1 I don't think it's changing the focus of this

2 proceeding at all. I recognize fully there is a

3 relatively short period of time left available to us,

4 and I think that short period of time is frankly a

5 rather artificial one that's been imposed on us in part

6 by the other side and by the legislative directive

7 to the contrary, but I think that really sort of misses

8 the point.

9 This is our discovery effort, and I think we

10 should be entitled to do discovery we want, and the

11 discovery we want should be directed towards our

12 developing our theories of the case, and this is a

13 very, very probative, relevant, and we hope in the

14 final analysis will be a very persuasive argument to be

15 laid before you.

16 HEARING OFFICER: But, Mr. Hyde, I mean, the

17 SWIM plan clearly anticipates that the strategies for

18 dealing with the Everglades will be an ongoing effort,

19 that it will include ongoing scientific studies and

20 continual efforts to refine strategies set forth

21 within the SWIM plan.

22 MR. HYDE: I agree with you entirely. That's

23 what we're doing here, dealing with that ongoing

24 study effort. That's what we have in this February 15th

25 document, a reflection of the latest ongoing study

1 by the District.

2 HEARING OFFICER: Well, I guess my point is for

3 purposes of this litigation what we are focusing on

4 is the plan that was adopted in March, 1992, and we

5 have to deal with the specifics of that plan and the

6 science that's involved in that plan and determine

7 whether or not that plan stands on its own.

8 So I just have some concern whether we get of

9 into ongoing studies and the scientific basis for some

10 alternate theories that may or may not be adopted by

11 the District ultimately which is going to cause us

12 to lose sight of what's involved in this case.

13 MR. HYDE: Well, I understand what you're saying,

14 Mr. Menton, but when you talk about ongoing studies

15 I think it's well to remember we are dealing here

16 with a Section 120.57 proceeding, a de novo proceeding,

17 and the facts were not rendered static as of the date

18 of adoption of that plan in 1992.

19 There's been a whole bunch that occurred ever

20 since that time, a whole bunch of new evidence

21 that has been generated and developed by all sides to

22 the case.

23 So we are all dealing with ongoing, an ongoing

24 development of the facts. It's one of the problems my

25 side has in this case, that it's been a constantly

1 moving target, and I think that if anything this

2 February 15th document is additional evidence of that

3 fact.

4 I think again it misses the point, because our

5 primary concern here is to develop our theory of the

6 case, and it is a legitimate vehicle to effectuate

7 discovery of these or related documents.

8 We are trying to persuade you why it's wrong, and

9 we think there are some fairly damning admissions in

10 these documents, and we think that even if those

11 documents may themselves be technically inadmissible

12 we can still generate a lot of information that will be

13 considered by you to be admissible, and I understand

14 your concern about losing the focus of this proceeding,

15 but again I urge you to remember that this is a

16 discovery process. We are entitled to develop the case

17 as best we see fit as it is framed by the pleadings,

18 and I think that the limit on our discovery should be

19 solely that which is provided by Rule 1.280, which

20 speaks to the discovery of relevant evidence and other

21 evidence which may be inadmissible at trial that is

22 reasonably calculated to lead to discoverable evidence.

23 HEARING OFFICER: Okay. Let me ask you this

24 question. Has this issue come up in any of the

25 depositions that have been taken over the last six

1 weeks or so? Has there been any specific objections

2 raised during the depositions or any questions which

3 have not been answered because it deals with it or

4 any questions that haven't been asked?

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

6 if I may.

7 Yes, we have a whole series of questions because

8 of our understanding of your ruling at the last hearing

9 we have not been asking relative to what is in this

10 conceptual design document and theretofore what's in

11 the mediated technical plan.

12 We understood you to rule we could not take

13 discovery on it, and we have not tried. I think there

14 may be one or two instances where one or two lawyers

15 did try, and there was objection.

16 HEARING OFFICER: Well, you know, I don't have a

17 problem in asking, in your asking witnesses what ongoing

18 studies they have conducted or whether they have

19 reached any new conclusions other than what's set forth

20 in the plan if it's framed in those terms.

21 I guess what I have a problem with is when we

22 start getting into specific questions regarding

23 participation in the development of this technical

24 mediated plan or the conceptual design or whatever

25 document results from the ongoing efforts, and I don't

1 think that, you know, I think you should be able to

2 phrase questions to witnesses...

3 MR. HYDE: We don't want to recreate the

4 settlement process or the discussions that went on in

5 that. We're not trying to develop that. We're not

6 trying to bring it forward to you either directly or

7 indirectly.

8 What we are trying to develop, and maybe I haven't

9 made this point clear, is a technical case that may be

10 arising out of some of these same discussions.

11 I mean, as you have noted, it is an ongoing

12 process. Even during the settlement discussion

13 process the District didn't just sit on its hands. It

14 kept thinking about other things it could do to I

15 presume improve its adopted plan, and that's why you

16 see such documents as the February 15th, 1994, document.

17 What we're trying to get at there are technical

18 things. We're not trying to get at the politics of it.

19 We're not trying to present to you the settlement

20 process so you can somehow derive some prejudice from

21 that. That would be foolish on our part, and we

22 don't want to do that.

23 What we're just trying to do is get at the

24 technical merits of the case. If, for example, the

25 settling rate that the stormwater treatment areas are

1 going to be designed for has changed, then we should

2 be able to get at that.

3 If the District has concluded that, for example,

4 they have not given adequate attention to hydro period,

5 we should be able to get at that and prove that portion

6 of the case.

7 I'm sure there are other areas that just don't

8 immediately come to me that may have at one time or

9 another been discussed in the settlement process, but

10 merely because something has been discussed in the

11 settlement process doesn't prevent the opposing party

12 from offering evidence of that at trial if you can

13 obtain it from some other forum, and if we can develop

14 from another witness, for example, that the adopted

15 plan is inadequate because it does fail to deal with

16 hydro period then we should be able to present that to

17 you, even if that grew out of a discussion or an

18 interrogation that dealt with in whole or in part the

19 mediated technical plan.

20 Now, for example, in the schedule next week is

21 the primary architect of the February 15th, 1994,

22 conceptual design that we filed today, his name is

23 Gaylon Miller, I think he's going to be able to tell us

24 a great deal about that plan, about the adopted plan,

25 and about his new conceptual design, and I think that

1 we will hear from that deposition some rather probative

2 evidence that if your present ruling were in effect

3 we might not be able to develop at all, because

4 someone might argue that in some way, shape, or form

5 it grew out of the mediation process and thereby is

6 inadmissible, not only inadmissible but privileged.

7 HEARING OFFICER: Well, Mr. Hyde, I don't think

8 my prior ruling ever spoke to those issues that you're

9 discussing.

10 I don't think the mere fact that there is a

11 discussion in the technical mediated plan or any of

12 its offshoots of some certain scientific problem or

13 resolution of a problem that that automatically

14 precludes it from discovery or admissibility at the

15 final hearing in this case.

16 That's not what I ruled at all, and maybe the

17 problem here is you are taking an overly broad

18 interpretation of what I said.

19 I said simply that the plan itself was not at

20 issue, the technical mediated plan was not at issue in

21 this case, and it was developed in the context of

22 settlement negations entirely, and consequently I

23 don't think it's going to be admissible at the final

24 hearing, and I don't think the process by which it was

25 developed are relevant or purposes of resolving the

1 dispute that's before us.

2 MR. HYDE: Well, I think maybe we have misunderstood

3 each other. Arguably the process by which it was

4 developed is not before us, and I'll accept that, but

5 I do think that the technical underpinning of the

6 conceptual, the technical mediated plan are before us,

7 and even if they weren't before us as a result of the

8 mediated technical plan discussions certainly they

9 are now before us in a nonprivileged, clearly admissible

10 document dated February 15, 1994.

11 HEARING OFFICER: Well, the technical provisions of

12 the technical mediated plan are not before us. They

13 only come before us if you can raise them within the

14 context of the SWIM plan that's being challenged in

15 this case.

16 MR. HYDE: I agree, and I'm not trying to dispute

17 you in that regard.

18 Really the technical underpinnings, really, but

19 those technical underpinnings, it's really fallacious

20 to link them to the mediated technical plan as

21 if they have no separate life of their own.

22 They do have a separate life. They were things

23 that were discussed before the settlement process ever

24 was contemplated by anyone and have been discussed since

25 that time.

1 HEARING OFFICER: Okay. Well, let me hear from

2 any of the other petitioners who want to speak on this

3 issue before I hear from the District and the federal

4 government.

5 Mr. Green or Mr. Perko?

6 MR. PERKO: On behalf of the Cooperative we have

7 no objection to the League's motion. As you know, we

8 originally filed a motion to strike references to the

9 technical mediated plan, because we do not believe that

10 plan is at issue in this proceeding.

11 However, to the extent that the technical

12 underpinnings of the plan are relevant to the

13 current SWIM plan before you, we believe those facts

14 should be discoverable, and we will decide if it's

15 admissible at the hearing. But we have no objection

16 to the League's motion.

17 We do maintain our position that the technical

18 mediated plan itself is not at issue in this proceeding.

19 HEARING OFFICER: Okay. How about from the

20 District or DER?

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

22 Nettleton for the District.

23 Before I respond totally I'd just like to take

24 issue with Mr. Hyde's continuing characterization

25 that the current SWIM plan does not address hydro period

1 and did not comply with the statute.

2 So that is obviously something that will be

3 dealt with at the final hearing. We do not agree

4 with that concept.

5 HEARING OFFICER: Okay.

6 MR. NETTLETON: It seems they are trying to walk

7 a very fine razored edge here in attempting to use

8 the technical mediated plan without endorsing it to

9 somehow suggest that that's a better plan but at the

10 same time they won't endorse it as a better plan.

11 So with that in mind I'd like to just say first

12 of all because of the press of things going on in this

13 case and related cases we have not had an opportunity

14 to file a formal response to it, but we would for the

15 record adopt the arguments that we presented in our

16 renewed motion to strike and motion for protective

17 order that was filed in October of 1992.

18 With regard to the discovery in the federal

19 settlement agreement we believe that these issues

20 are identical in essence. We believe that the

21 discovery concerning the technical mediated plan would

22 be wholly improper...

23 HEARING OFFICER: What about the way Mr. Hyde

24 was just characterizing it in terms of trying to

25 address it within the scope of the technical underpinnings

1 rather than with respect to the process by which it

2 came about? What's the problem...

3 MR. NETTLETON: Mr. Hearing Officer, I don't know

4 what that means. I don't know how you start doing

5 discovery into the technical underpinnings of the

6 technical mediated plan without discussing

7 how it was developed.

8 HEARING OFFICER: Well, again I agree with you if

9 you phrase it in terms of the technical mediated plan,

10 but I guess my point is that Mr. Hyde should not be

11 precluded from inquiring of witnesses regarding specific

12 scientific issues simply because they are included

13 within the technical mediated plan. Would you agree

14 with that?

15 MR. NETTLETON: I agree with that.

16 HEARING OFFICER: Okay.

17 MR. NETTLETON: I don't have any problem with

18 that. What I have a problem with is what we see coming

19 down the road, which has been highlighted by Mr. Hyde,

20 coming up I guess in Gaylon Miller's deposition next

21 week, who was, who developed not only the conceptual

22 design for what's included in the SWIM plan but also

23 for the technical mediated plan.

24 And I just think this is going to sidetrack this

25 proceeding greatly. As has been stated, the technical

1 mediated plan is not part of the current SWIM plan and

2 has not been adopted by the District as part of its

3 SWIM plan and therefore is not at issue in this

4 proceeding.

5 HEARING OFFICER: Mr. Nettleton, what is going to

6 sidetrack this proceeding? I mean, what specifically

7 is it that you're concerned about that is going to

8 sidetrack the proceeding?

9 MR. NETTLETON: Well, I have a couple of concerns on

10 sidetracking the proceeding. It deals with the

11 ability to get this case to trial without doing an

12 enormous amount of discovery on collateral issues

13 which are not really relevant to the proceeding.

14 HEARING OFFICER: I agree with you, but I guess

15 as we're sitting here talking I'm wondering whether

16 there is even a dispute that needs to be resolved.

17 It seems to me as I understood what Mr. Hyde

18 was saying a minute ago that he is not seeking to

19 inquire regarding the processes by which the technical

20 mediated plan was developed and that the inquiries

21 that he will be conducting will be framed within the

22 scope of the SWIM plan that is at issue in this case,

23 and if it's framed within that context where's the

24 problem?

25 MR. NETTLETON: Again, Mr. Hearing Officer, I

1 am not exactly sure what he means by that, and what

2 you're saying, I don't have a problem with him asking

3 questions of a technical nature that relate to that

4 current SWIM plan, because they happen to also be

5 involved in the technical mediated plan.

6 What I'm concerned about is getting into a long

7 process of discovery, of Gaylon Miller and additional

8 witnesses from the District or otherwise, that deal

9 with the technical mediated plan, what it provides

10 for so far as hydro period, so far as phosphorus

11 reductions, so far as STAs, so far as all of the

12 programs that are set forth in there that are not

13 exactly the same as what's in the SWIM plan.

14 They are part and parcel of the same genre, but

15 they are still STAs, and we're still dealing with

16 phosphorus reduction, hydro period relationships, and

17 so forth.

18 But I just don't see how you can get into, I don't

19 know what they're asking for is the problem, and I do

20 have a problem with them doing discovery into the

21 mediated plan because we think it is contrary to the

22 spirit and policy, and I'm happy to address that if you'd

23 like me to.

24 HEARING OFFICER: I don't think we need to get into

25 that. Let me just say we're talking in the abstract

1 about issues that probably are not right for resolution

2 right now, and I have hopefully expressed my concerns,

3 that I don't want the discovery in this case to be

4 sidetracked into a long and lengthy discourse on the

5 development of the technical mediated plan or the

6 specifics of the technical mediated plan.

7 I think the discovery that's conducted in this

8 case has to be directed towards the provisions of the

9 SWIM plan that's at issue in this case, which is the

10 plan adopted in March of 1992, and if the discovery is

11 framed along those lines then I think it's reasonably

12 calculated to lead to admissible evidence and is

13 permissible.

14 And those are the parameters within which I think

15 the discovery should be constructed.

16 If you get into specific issues or disputes during

17 the course of the depositions I will be around next

18 week, and it might be easier then when we get into

19 specifics to deal with this, rather than talking

20 in the abstract like we have today.

21 MR. HYDE: Mr. Menton, this is Bill Hyde. I think

22 that you can see what you just suggested is consistent

23 with the numbered paragraph two on page six of my

24 pleading.

25 I think that that ought to be the operative

1 test for determining whether an inquiry can be made.

2 Now I think you are also right in saying we really

3 are dealing with an abstract, and it's really hard

4 to figure out what will be objectionable and what

5 isn't until the questions are asked.

6 It's a good general test that's been articulated

7 on page six, and I think that ought to be our operative

8 way of looking at it.

9 MR. KILLINGER: Mr. Menton, could I break in?

10 This is Lee Killinger.

11 HEARING OFFICER: Okay.

12 MS. PONZOLI: Mr. Hearing Officer...

13 HEARING OFFICER: Mr. Killinger, and then Ms.

14 Ponzoli I gathered also wanted to say something.

15 MS. PONZOLI: Yes, sir.

16 MR. KILLINGER: All right.

17 HEARING OFFICER: All right. Go ahead,

18 Mr. Killinger.

19 MR. KILLINGER: I recognize you may have already

20 ruled, but I have to go on record.

21 I think we're dealing with the nose of the camel

22 under the tent situation here, and I really have

23 serious doubts that when we get into the context of a

24 deposition that the questions are going to be limited

25 to the context of the present SWIM plan.

1 I think they are going to try to go as far afield

2 as they can until they are yanked back by opposing

3 counsel in this sparring match about who is going

4 to dare to call the Hearing Officer to call it on

5 this, and I think it's a dangerous precedent to set.

6 I think it discourages settlement discussions in

7 general as to what they're going to be used for later

8 on.

9 HEARING OFFICER: Mr. Killinger, what are you

10 suggesting that I do then?

11 MR. KILLINGER: I think that any inquiry into the

12 settlement negotiations or the prior settlement

13 negotiations ought to be expressly precluded.

14 I think the law provides that they shouldn't be

15 inquiring into it. It goes against the policy of

16 encouraging settlement negotiations.

17 HEARING OFFICER: Well, I think I have already

18 said if they start talking about what happened during

19 the settlement process that that's not an appropriate

20 issue for discovery.

21 MR. KILLINGER: It is a produce of settlement

22 discussions, and they will want to go into the

23 substance of the document, which I think is tantamount

24 to the same thing.

25 MS. PONZOLI: Mr. Menton, I have a specific

1 example.

2 HEARING OFFICER: Okay.

3 MS. PONZOLI: Dr. Maffei is one of the federal

4 scientists, and in his deposition notice and request

5 for documents, and you understand a request for documents

6 in this case means just anything, it covers the

7 universe, they have asked for any and all documents

8 relating to mediation or settlement negotiations

9 between the various parties to the Everglades SWIM

10 challenge proceeding.

11 That is asking for everything that was generated

12 during the last year of mediation.

13 I think that the lessons for settlement among major

14 opposing parties would be horrible if that type of a

15 request were allowed to be fulfilled and we were forced

16 to produce those very large number of documents and then

17 create privileged lists for those things that went

18 between an attorney and the client or were work

19 product.

20 You are really creating not something that will

21 sidetrack this, but it will derail it, because we

22 are on another major tangent.

23 I like Mr. Nettleton can live with the

24 industries asking people, you know, their theories on

25 hydro period, does the SWIM plan do this, you know,

1 whatever those underpinnings are.

2 I agree that's a hard line of inquiry to shut

3 down, and I can live with that, but to ask me to

4 produce all of my mediation and settlement documents

5 is just fundamentally wrong.

6 And we have as I tried to point out to you, we

7 have a very difficult time getting the discovery on

8 the SWIM plan presently completed on the schedule that

9 we have, and I think that we feel it's extremely

10 important to go forward with the hearing in a prompt

11 way, and so if I'm understanding, you're saying that

12 document request is improper, but a question regarding

13 hydro period would be acceptable. Is that accurate?

14 HEARING OFFICER: I think that's an appropriate

15 interpretation.

16 MS. PONZOLI: Okay. Well, with that...

17 HEARING OFFICER: I guess what I'm trying to find

18 out in the abstract is how can we craft some guidelines

19 that everybody can live by, and that's what I was trying

20 to get from Mr. Killinger, and I'm open to suggestions

21 as to how we can do that.

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

23 Nettleton again.

24 I think one point from the mediation which bears

25 on this to some extent, and, I mean, it's not like we

1 didn't think of this ahead of time, the first draft of

2 the settlement agreement, which didn't contain headings

3 or outlines, contained one full text section, and I

4 drafted that section in anticipation of this very

5 problem arising, and I don't have it in front of me,

6 but someone may have it.

7 It provided that nothing in any of the drafts of

8 the settlement agreement could be used in litigation or

9 discovery and expressly stated that because it was in

10 a draft did not mean it represented a position of a

11 party, either the drafting party or any other party.

12 It was presented for purposes of discussion only, and

13 I believe variations of that particular comment or

14 provision were contained in everybody's draft that came

15 out after that, and I would also point out that the

16 technical mediated plan was a part of that settlement

17 agreement, Appendix A of that settlement agreement, and

18 incorporated by reference.

19 So I think this whole line of inquiry, getting to

20 the technical mediated plan and so forth, is in fact

21 contrary to what we understood going into the

22 mediation was going to be available for discovery

23 afterwards.

24 HEARING OFFICER: Getting back to Ms. Ponzoli's

25 point, I don't think it's proper to try to get the

1 specific documents from witnesses that were used as

2 part of the settlement negotiations in the mediation

3 effort, but to the extent that there were ongoing

4 studies that were being conducted by the witnesses and

5 are continuing today I think it is appropriate, and the

6 petitioners ought to have an opportunity to inquire

7 as to what those studies are and what conclusions

8 they have reached, if any, and how that may alter the

9 original positions that were taken by the witness in

10 connection with the development of the SWIM plan at

11 issue.

12 If it's framed within that context, then I don't

13 have any problem with the inquiry.

14 MS. PONZOLI: Mr. Menton, may we also do some

15 of the, they used different scientists for settlement

16 discussion in some cases. I think that's going to

17 require our adding witnesses. They used different

18 negotiators to agree to some of these things, concepts.

19 It would appear that we're going to need to go and

20 interview those people and get their thoughts, because

21 they used different teams. There was some overlap.

22 I mean, some mediators were certainly there, but...

23 HEARING OFFICER: I mean, Ms. Ponzoli, do you

24 really need that? I mean, your SWIM plan is going to

25 rise and fall on your own witnesses, isn't it?

1 MS. PONZOLI: Well, I think in a compromise

2 they agreed that certain things would work that they're

3 not agreeing presently will work.

4 MR. HYDE: Mr. Menton, I think that's a

5 mischaracterization of what my side may or may not have

6 agreed to, and I would like to reiterate here that we

7 are not seeking to reconstruct for your purposes the

8 settlement discussions and settlement agreement or the

9 potential settlement agreement that was unfortunately

10 not reached among and between the parties.

11 Again we are just trying to get at the technical

12 underpinnings. We do not want to be precluded from

13 asking questions of any listed witness or appropriate

14 witness and be told that we can't get an answer to a

15 specific question simply because that's a subject

16 that may have been brought up or discussed in the

17 settlement process.

18 This would be an inappropriate limitation on our

19 powers of inquiry. That's what we're trying to seek

20 through the motion here today.

21 We do not want to be absolutely precluded from

22 that kind of inquiry. We do recognize your ruling

23 about admissibility, and we do recognize we don't

24 want to offend any public policy attached to the

25 Section 90.408, but we have some pretty important public

1 policies on our side, too, and one of them, the most

2 important is the ability to discovery and develop our

3 theory of the case, and I think that when all is said

4 and done the comments you have heard from opposing counsel

5 are aimed at frustrating that exercise on our part.

6 We're trying to discover their case, and it's

7 an appropriate area of inquiry.

8 HEARING OFFICER: All right, let me see if I can

9 summarize this. We're kind of...

10 MR. HYDE: It's a parade of horribles for you

11 here that is not necessarily the case. I think our

12 discovery or inquiries when all is said and done has

13 been very appropriate and limited, and frankly given

14 how little time we have left to us and the small

15 amount of time we have per witness I doubt very much

16 we could be abusive even if we wanted to be.

17 HEARING OFFICER: Okay, let's see if we can

18 summarize where we are.

19 Mr. Hyde, I agree with you that if you inquire

20 of witnesses, the fact that some particular area of

21 inquiry may have been addressed within the mediated,

22 technical mediated plan is not in and of itself a

23 basis for directing that witness not to respond to the

24 question.

25 Okay? On the other hand I do not believe that, or

1 let me rephrase that.

2 I think that your inquiry needs to be focused in

3 terms of the plan that's at issue in this case, which

4 is the March, 1992, plan, and you need to avoid

5 getting sidetracked into the particulars of the

6 technical mediated plan and which plan is better,

7 etcetera, because we're not litigating which plan is

8 better. We're litigating whether or not the SWIM

9 plan of March, '92, meets the statutory parameters.

10 So you need to keep your inquiry focused in that

11 regards, and I think that's the best we can do in the

12 abstract now.

13 MR. HYDE: I understand that ruling, and I'm

14 satisfied with it. Our intent all along has been

15 to try to prove why the adopted plan is a bad plan.

16 We think we can do that. That's all we want to do.

17 HEARING OFFICER: All right.

18 MS. PONZOLI: Mr. Menton, are we clear that such

19 a request as we read off for you is foreclosed?

20 HEARING OFFICER: Right, in terms of trying to

21 deal specifically with the efforts of developing a plan

22 within the scope of mediation. I think the settlement

23 negotiations and the compromises that may have been

24 offered by the various parties we don't need to get

25 into those specific issues. I think it has to be geared

1 towards the SWIM plan adopted in March, 1992.

2 Now to the extent witnesses are involved in

3 ongoing scientific studies and efforts, then they are

4 subject to discovery regarding those ongoing efforts.

5 I guess that's where the crux of the problem is

6 coming in here, what is ongoing scientific efforts, and

7 what is settlement negotiations, and I think those

8 conflicting issues are sometimes difficult to resolve

9 in the abstract.

10 I hope I have given some parameters as to what is

11 appropriate. If it gets down to specifics and it

12 can't be worked out, then, you know, it's appropriate

13 to give me a call, and we'll try to work it out

14 within the context of a particular question or set of

15 documents.

16 MR. BURGESS: Mr. Menton, this is Rick Burgess.

17 So I have, because I am going to be taking the

18 deposition of Gaylon Miller next week, and just so

19 I have some direction, we did file the conceptual

20 design documents for a reason.

21 Page one, the first sentence of the Executive

22 Summary document, points out that it is intended upon

23 acceptance and approval to modify certain elements

24 of the current proposed SWIM plan for the Everglades.

25 I would like to inquire of Mr. Miller next week

1 with respect to this specific document how the

2 document modifies certain elements of the pending

3 SWIM plan.

4 Do I understand from your ruling I cannot inquire

5 into the modifications, because they were ongoing

6 studies since the SWIM plan and culminated in a

7 February 15th, 1994, document which is several months

8 post the collapse of the mediated plan discussions?

9 HEARING OFFICER: Well, you know, this gets back

10 to the second issue that I had raised when we started

11 the conference call today.

12 The whole idea of this parallel development of

13 another plan during the course of litigation on the

14 original plan is very problematic, and I have a real

15 hard time understanding exactly, I'm simply not privileged

16 to what all efforts are ongoing outside of the scope of

17 this litigation, but if we refer to this conceptual

18 design, that there is a specific intent to modify or

19 amend the SWIM plan, and yet I don't know when that's

20 supposed to occur, whether it's going to occur within the

21 scope of this litigation or at some latter point in

22 time and whether there would be creation of a new

23 point of entry to challenge modifications that are done

24 in connection with this conceptual design or what, and

25 that was the second issue that I was getting to.

1 I don't know, Mr. Nettleton or Ms. Ponzoli, if

2 you can give me any further clarification in that

3 regard.

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

5 Nettleton.

6 Let me first of all state I had not even seen this

7 conceptual design that Mr. Burgess is talking about.

8 I can't speak directly to its content, but from

9 his comment just then it indicates that it would be

10 intended to modify the SWIM plan if the document is

11 accepted, which obviously has not occurred at this

12 point.

13 It is my understanding that that document may

14 have been created for the purposes of current bills

15 that are pending before the Legislature which may have

16 some effect, but at this point they have no bearing

17 on the litigation or the current SWIM plan.

18 You had mentioned early on it appears those are

19 moving on a parallel track, and that is probably

20 accurate. There are efforts going on that I'm not

21 aware of, but I would point out what was not filed

22 with you is that there is another report I understand

23 issued by Gaylon Miller and Burns and McDonald dated

24 February 4, 1994, which is an update of the conceptual

25 design actually in the SWIM plan, so to suggest that

1 this particular document that's been filed before you

2 is an evolution of the SWIM plan is not an accurate

3 depiction. What it is as I understand it is an

4 evolution of what developed during the technical

5 mediated discussions.

6 There is a separate conceptual design related

7 directly to the SWIM plan concepts of the STAs, and that

8 has now been updated within the last month as well.

9 MS. PONZOLI: I think that's accurate, Mr. Menton.

10 This is Ms. Ponzoli. I was unaware of this document

11 also, but the League did provide me with a copy of it.

12 I guess you have one, too, and the Executive Summary

13 says in the second paragraph, "The only substantive

14 difference between the conceptual plan presented

15 herein and that developed by the technical mediation

16 group is in the geographic location of one of the six

17 stormwater treatment areas included in the plan."

18 It is my understanding this conceptual design is

19 the conceptual design for the technical mediated

20 plan, and I guess you get back to the fundamental

21 question it's hard for you, and you're not the only

22 one it's hard for, I have to tell you, because some

23 of the litigators are chewing through their fingers

24 on this, the technical mediated plan, evidently there

25 is a movement afoot for the Legislature to somehow

1 legislate...

2 MR. PERKO: I'm going to object to this

3 discussion. I don't think it's relevant to the current

4 SWIM plan. It relates to the activities outside this

5 forum.

6 HEARING OFFICER: Mr. Perko, is that who that

7 is?

8 MR. PERKO: Yes, sir.

9 HEARING OFFICER: Okay. I agree if we get into

10 specifics of it, but I think in terms of trying to

11 crystallize the discovery dispute and understand

12 exactly where we are, if we're talking about

13 procedurally the status of the different plans, I

14 think it's permissible.

15 MS. PONZOLI: Well, that is my understanding.

16 I am not involved in that, so that's my understanding,

17 and if this document I guess as Mr. Nettleton has

18 indicated was created towards that effort, there are a

19 large number of people who believe that this conceptual

20 design and technical mediated plan certainly do all

21 the things that the first SWIM plan did and more, and

22 of course in a perfect world the people on the other

23 end of this phone conversation would say yes, and we

24 would not need to come before you every week.

25 HEARING OFFICER: Well, let me ask you,

1 Ms. Ponzoli, and you, Mr. Nettleton, what is your

2 position going to be next week when Mr. Burgess seeks to

3 inquire of Gaylon Miller regarding his participation

4 in the development of this conceptual design?

5 MS. PONZOLI: That question that you just framed

6 would seem to go to the settlement development.

7 I guess Mr. Miller does what people ask him to do,

8 so I don't know. Maybe Mr. Nettleton had better

9 handle that. I'm not sure the United States is going

10 to be saying that much. I think it will be more the

11 District.

12 HEARING OFFICER: Okay, Mr. Nettleton?

13 MR. NETTLETON: Well, from my understanding of your

14 ruling, Mr. Hearing Officer, they are not entitled to

15 inquire into the development of the technical mediated

16 plan, along with Mr. Burgess who just said he intended

17 to inquire into discussions between the conceptual

18 design of the mediated plan versus the conceptual design

19 for the SWIM plan, and I don't necessarily see that as

20 a problem. I see it's a red herring. I'm not

21 exactly sure where it's going.

22 I'd have to probably hear it in context to determine

23 whether I would think it would be objectionable under

24 your ruling.

25 MS. PONZOLI: I think that's the better or the

1 worse argument that Mr. Menton was referring to

2 before, which was better or which was worse.

3 I don't know. This is very difficult.

4 MR. HYDE: Well, it is a problem to deal with

5 in the abstract, but the document is dated

6 February 15th, 1994. My understanding is settlement

7 discussions that Ms. Ponzoli refers to in her

8 response to our motion did fail and failed

9 approximately three months ago.

10 This is a very recent document. It is along the

11 lines, Mr. Menton, of what you said we could inquire

12 of the witnesses as to what they have been doing, what

13 other studies or what other work efforts, since the

14 SWIM plan.

15 HEARING OFFICER: That's where I want to see your

16 inquiry directed.

17 MR. HYDE: That's where it would be. The statement

18 that I raised in Mr. Miller's statement that this

19 document, the February 15th document, is designed to

20 modify certain elements of the SWIM plan.

21 I want to inquire over the whole length and

22 breadth of how this document that he drafted and

23 modified...

24 HEARING OFFICER: No, no. Wait a minute. Now

25 you're getting beyond the scope of what I think is

1 pertinent, because if you want to go into how this

2 conceptual design modified what's in the SWIM plan,

3 then you're getting sidetracked. That's where I think

4 we're beginning to waste time.

5 If you want to go through the aspects of this

6 plan, that expand upon what's in the SWIM plan, or if

7 you believe that there are inconsistencies and you want

8 to ask him why he changed his opinion, then you can

9 inquire into that, but in terms of going into aspects

10 of this conceptual design that were not addressed

11 and are not part of the original SWIM plan, then

12 that's something that I don't think we need to get into,

13 because the SWIM plan is either going to stand on its

14 own feet or it's not.

15 MR. BURGESS: I think I understand your ruling.

16 I think I'm entitled under your ruling to ask him how

17 this document modifies what is in the pending SWIM

18 plan and in his opinion how this document proves or

19 disproves the adequacy of what is in the pending

20 SWIM plan.

21 HEARING OFFICER: I think probably the appropriate

22 way to frame your questions to him is what has he been,

23 what was his involvement in the development of the

24 SWIM plan in 1992, what has been his continuing

25 involvement, and has he reached any conclusions that

1 are different or contrary to what was set forth in the

2 March, 1992, SWIM plan, and what he intends to testify

3 to at the final hearing in this case.

4 MR. BURGESS: Okay.

5 HEARING OFFICER: Again it's hard to deal with

6 some of these discovery issues in the abstract.

7 I will be around next week so you can call me and we

8 can try to get a little bit more specific about it if

9 we need to.

10 I just want to emphasize that the discovery in

11 this case has to be geared towards the 1992 SWIM plan,

12 because that's the plan that's at issue, and while

13 there may be some talk about substituting or modifying

14 that SWIM plan, until those events occur we have to

15 deal with the plan before us.

16 If and when such modifications or amendments take

17 place, then we'll address those at that point in time

18 and determine what if any efforts are necessary.

19 All right. Any other issues we need to take up

20 today?

21 MR. HYDE: I don't think so.

22 HEARING OFFICER: Mr. Hyde, does this give you

23 enough to go on in terms of your discovery

24 preparations?

25 MR. HYDE: I think so. Hopefully we won't have a

1 need to come back for any further, more specific

2 questions.

3 My concern was simply that your previous ore tenus

4 ruling could be read to constitute a blanket

5 preclusion of inquiry, and that's my concern primarily.

6 I think you clarified it sufficiently to make it

7 not that way.

8 HEARING OFFICER: Okay. All right. Nothing

9 further today?

10 All right. We have the next hearing scheduled for

11 March 14th, I believe, is that correct, at 10 o'clock?

12 MR. HYDE: Yes.

13 HEARING OFFICER: Okay. Very good.

14 MR. HYDE: Thank you.

15 (WHEREUPON, THE HEARING WAS CONCLUDED AT

16 3:34 P.M.)

17 * * * * *

1 CERTIFICATE OF REPORTER _______________________

2 STATE OF FLORIDA )

3 COUNTY OF LEON )

4 I, SUE HABERSHAW JOHNSON, Certified Court Reporter,

5 Registered Professional Reporter, and Notary Public in and for

6 the State of Florida at Large:

7 DO HEREBY CERTIFY that the foregoing hearing was

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

9 my shorthand notes were thereafter reduced to typewriting

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

11 through page 48, are a true and correct record of the

12 proceedings.

13 I FURTHER CERTIFY that I am not a relative,

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

15 relative or employee of such attorney or counsel.

16 CERTIFIED THIS 2ND DAY OF MARCH, A.D. 1994,

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

STATE OF FLORIDA )

19 SS

STATE OF LEON )

21 The aforesaid instrument was acknowledged

22 before me this 2nd day of March, 1994, by SUE HABERSHAW

23 JOHNSON, who is personally known to me.

CHRISTINE WHEELER

25 Notary #AA711091