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: MONDAY, APRIL 11, 1994

(10:02 A.M. - 10:36 A.M.)

LOCATION: HEARING ROOM 2,

21 DESOTO BUILDING

1230 APALACHEE PARKWAY

22 TALLAHASSEE, FLORIDA

23 REPORTED BY: SUE HABERSHAW JOHNSON

CERTIFIED COURT REPORTER

24 REGISTERED PROFESSIONAL REPORTER

NOTARY PUBLIC

1 APPEARANCES:

2 Representing Petitioners, Sugar Cane Growers

Cooperative of Florida, Roth Farms, Inc.,

3 and Wedgworth Farms, Inc.:

4 WILLIAM H. GREEN, ESQUIRE

GARY PERKO, ESQUIRE

5 CAROLYN RAEPPLE, ESQUIRE

GARY P. SAMS, ESQUIRE

6 ROBERT P. SMITH, ESQUIRE

Hopping, Boyd, Green & Sams

7 123 South Calhoun Street

P. O. Box 6526

8 Tallahassee, Florida 32314

(904-222-7500)

-and-

JEFFREY J. WARD, ESQUIRE (via telephone)

11 P.O. Box 666

Belle Glade, Florida 33430

12 (407-996-4724)

13 Representing Petitioners, Florida Sugar Cane

League, Inc., and United States Sugar

14 Corporation:

15 RICK J. BURGESS, ESQUIRE

WILLIAM L. EARL, ESQUIRE

16 Earl, Blank, Kavanaugh & Stotts

One Biscayne Tower, Suite 3636

17 Two South Biscayne Boulevard

Miami, Florida 33131

18 (305-358-3000)

19 Representing Respondent, South Florida Water

Management District:

PAUL L. NETTLETON, ESQUIRE

21 R. BENJAMINE REID, ESQUIRE

Popham, Haik, Schnobrick & Kaufman, Ltd.

22 400 International Place

100 Southeast Second Street

23 Miami, Florida 33131

(305-539-7222)

-and-

1 APPEARANCES, CONTINUED:

2 RUTH P. CLEMENTS, ESQUIRE (via telephone)

South Florida Water Management District

3 P. O. Box 24680 (33416-4680)

3301 Gun Club Road

4 West Palm Beach, Florida 33416

(407-686-8800)

Representing Intervenor, Miccosukee Tribe of

6 Indians:

7 DEXTER W. LEHTINEN, ESQUIRE (via telephone)

Spencer and Klein, P.A.

8 801 Brickell Avenue, Suite 1901

Miami, Florida 33131

9 (305-374-7700)

10 Representing Intervenor, The United States

of America:

THOMAS A. WATTS FITZGERALD, ESQUIRE

12 SUZAN HILL PONZOLI, ESQUIRE

Assistant United States Attorneys

13 Southern District of Florida

Third Floor

14 99 Northeast 4th Street

Miami, FL 33132-2111

15 (305-536-5477)

16 -and-

17 STEPHEN M. MACFARLANE, ESQUIRE (via telephone)

MIKE REED, ESQUIRE

18 United States Department of Justice

Environmental and Natural Resources Division

19 General Litigation Section

Room 879, 601 Pennsylvania Avenue

20 P.O. Box 663

Washington, D.C. 20044-0663

21 (202-272-4016)

1 APPEARANCES, CONTINUED:

2 Representing Intervenor, Florida Department

of Environmental Protection:

LEE M. KILLINGER, ESQUIRE

4 DONNA LA PLANTE, ESQUIRE

GARY S. SMALLRIDGE, ESQUIRE

5 Assistant General Counsel

Department of Environmental Protection

6 640 Twin Towers Office Building

2600 Blair Stone Road

7 Tallahassee, Florida 32399-2400

(904-488-9730)

* * * * *

INDEX

ITEM PAGE

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

HEARING CONCLUDED . . . . . . . . . . . . . . . . . . 29

CERTIFICATE OF REPORTER . . . . . . . . . . . . . . . 30

1 PROCEEDINGS

2 (WHEREUPON, THE HEARING COMMENCED AT 10:02 A.M.)

3 TELEPHONE OPERATOR: Mr. Macfarlane?

4 MR. MACFARLANE: Yes.

5 TELEPHONE OPERATOR: Ms. Clements?

6 MS. CLEMENTS: Yes.

7 TELEPHONE OPERATOR: Mr. Ward?

8 MR. WARD: Yes.

9 TELEPHONE OPERATOR: Dexter Lehtinen?

10 MR. LEHTINEN: Here.

11 TELEPHONE OPERATOR: Hearing Officer Menton?

12 HEARING OFFICER: Yes.

13 TELEPHONE OPERATOR: The reference number is

14 WR, as in William Robert, 34509, and if you need

15 further assistance call 1-800-232-1234.

16 HEARING OFFICER: Did somebody get the number?

17 COURT REPORTER: Yes, sir.

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

19 HEARING OFFICER: Okay. Thank you very much.

20 Let's start by getting a list of people on the phone

21 one more time. I think I got Mr. Macfarlane, Mr. Ward,

22 Mr. Lehtinen, Ms. Clements. Was there somebody else?

23 COURT REPORTER: No, sir.

24 HEARING OFFICER: Okay. We have a number of

25 people here in Tallahassee. Let's start by taking

1 appearances. For the League?

2 MR. BURGESS: Rick Burgess and Bill Earl for the

3 League.

4 HEARING OFFICER: Okay, for the Cooperative?

5 MR. GREEN: Bill Green, Bob Smith, Gary Sams,

6 Carolyn Raepple, Gary Perko.

7 HEARING OFFICER: For the Fruit and Vegetable

8 Growers? Is Mr. Cole here? Mr. Hoffman? Does anybody

9 know whether they wanted to participate?

10 MR. EARL: Mr. Hoffman told me, Mr. Menton, that

11 he was in consensus with our, with the other petitioners'

12 statement on the segmented issues, and he wanted that

13 conveyed.

14 HEARING OFFICER: Okay, and for the District?

15 MR. REID: Ben Reid and Paul Nettleton.

16 HEARING OFFICER: Okay, for the U. S. Government?

17 MS. PONZOLI: Suzan Ponzoli, Tom Fitzgerald, and

18 Michael Reed from the Department of Justice.

19 HEARING OFFICER: Okay, and for the Department of

20 Environmental Protection?

21 MR. LEE KILLINGER: Lee Killinger, with Donna

22 LaPlante and Gary Smallridge.

23 HEARING OFFICER: Anybody else need to state an

24 appearance?

25 Okay. This conference was set up this morning to

1 begin to finalize some of the preliminary matters

2 leading to the hearing in this case.

3 Let me just say that I happened to be over at

4 the Capitol last week on some unrelated matters and

5 saw a number of the same faces running around in the

6 halls of the Capitol, and obviously there have been

7 some reports in the media regarding some possible

8 legislation that would significantly impact upon this

9 case.

10 As I understand it there has been no legislation

11 passed, and I don't know what position the parties are

12 going to take so far as whether we are proceeding

13 ahead on a hearing schedule or whether we are waiting

14 the results of the Legislature or what. Why are you

15 all here?

16 MR. REID: Because we're not all there.

17 MR. FITZGERALD: It's Tallahassee. It's

18 springtime. We're trying to get over Duke's loss.

19 HEARING OFFICER: You had to bring that up, didn't

20 you?

21 MR. FITZGERALD: Ms. Ponzoli is wearing black

22 because of that.

23 MR. EARL: Speaking for the League and U. S. Sugar,

24 we are hopeful that the legislation will be resolved.

25 It's my understanding we're looking at probably

1 Wednesday before anything really can be started over

2 there, but we believe we ought to prepare, do our

3 pretrial, and set the hearing date and be prepared to

4 proceed in the event that doesn't work out.

5 HEARING OFFICER: Okay. Any different position

6 from Mr. Green?

7 MR. GREEN: No, sir.

8 HEARING OFFICER: Or the proponents of the SWIM

9 plan?

10 MR. KILLINGER: On behalf of the Department, I

11 don't know if this is a suggestion of potential

12 mootness. I think there is a strong likelihood

13 something will pass. I don't know we can use that as

14 something that would change what will go on here.

15 All we can do is go on the way we are going and see

16 what happens, but I think you are right, Bill, that

17 nothing can happen before Wednesday. As I understand

18 it the Senate comes back on Wednesday, and the House

19 comes back on Thursday. Until then it's in limbo.

20 HEARING OFFICER: Okay. Is there any sense at

21 this point discussing what the implications would be

22 if the legislation passes?

23 I had received a copy of something that passed out

24 of the Rules Committee in the Senate a couple of

25 weeks ago, and I don't know that it really is appropriate

1 for me to discuss that or not, but there were

2 certainly some aspects to that that I went through, and

3 it doesn't seem like that's what anybody wants to

4 talk about, you know.

5 MR. KILLINGER: I can discuss what's in the bill

6 that's being bounced around. I don't know what the

7 others feel, if it's an appropriate topic for discussion,

8 but I can talk about what's in it and what those

9 implications are.

10 The bill as it is presently written passed out

11 of the House Friday night before the Senate decided

12 to take a break would basically enact a SWIM plan by

13 statute in lieu of the document we have been litigating

14 about here.

15 It would provide the District would not take final

16 agency action on or propose final agency action about

17 the SWIM plan or the planning area specified, which

18 would cover this, until what's set forth in the Statute

19 is completed.

20 And the statute includes construction of stormwater

21 treatment areas, the DMC program, monitors, and

22 research, so I think the Statute if it is enacted

23 will clearly moot the proceeding out, because by

24 operation of law it will suspend the District's ability

25 to act on the SWIM plan document and take action about

1 it.

2 I think given there are some specific technical

3 and factual differences between what the legislation

4 would do and what this plan proposes the District

5 would also be amending its pending permit application

6 once they had a chance to go through the technical

7 nuances of doing that, and therefore the permitting

8 proceeding would also at least have to be suspended

9 and jurisdiction relinquished on that until that could

10 be done.

11 I think there's a specific date in the statute for

12 amendment on the permit application to conform with

13 what the Statute would require.

14 HEARING OFFICER: Would there still be the potential

15 of a hearing with respect to the permit aspect?

16 MR. KILLINGER: I think there might very well be,

17 depending on what challenges were filed when it's

18 ultimately amended and a new notice of intent comes

19 out, but as I said I think it would be down the road

20 several months before it could be completed, and I

21 think therefore what I am contemplating anyway if it

22 goes through is there would have to be a request made

23 to relinquish jurisdiction, because I would assume DOAH

24 would prefer not to have the matter just left until

25 that could be done.

1 It will be a substantial modification to some

2 aspects of it that would require more discovery and other

3 things more specific to the amendment.

4 HEARING OFFICER: Okay.

5 (WHEREUPON, MR. SMALLRIDGE LEFT THE HEARING ROOM.)

6 Now if the legislation passes Wednesday or

7 whatever I guess obviously the Governor has a certain

8 period of time within which to act on the bill, and I

9 don't know how that date comes into place with respect

10 to the hearing date we have scheduled and whether we are

11 going to be up to the date of the hearing wondering

12 what the Governor will do or not.

13 MR. KILLINGER: I don't think I can speak to that,

14 either. I don't know. It will obviously depend on

15 what came out of the Legislature and the Governor's

16 disposition on his signature. I can't speak on that.

17 HEARING OFFICER: I'm not trying to ask you to speak

18 for the Governor. I guess I'm trying to get an idea

19 as to whether or not there is any sense in proceeding

20 full speed until we see what happens in the next week.

21 MR. KILLINGER: Well, I would think that some,

22 given the significance of the legislation it would

23 probably be filed fairly quickly, assuming it's going

24 to be signed. Maybe if something passes out there

25 needs to be another conference or hearing or something

1 where we can try to decide what to do next, pending

2 the Governor's decision about signature on the bill.

3 Who's to say what amendments might be tacked on

4 between now and then that might change the whole

5 landscape of the thing.

6 Again it's gotten through, separate bills have

7 gotten through the Senate and the House and were

8 parallel, but they had substantive differences.

9 The House passed one out on its way back to the Senate.

10 I'm not sure what's going to happen to it.

11 If they pass it it will go to the Governor or

12 tack on some amendments, in which case it would have to

13 go back to the House, and the game of ping pong continues.

14 HEARING OFFICER: Well, I understand there's no

15 way of predicting what will come out of the Legislature.

16 I'm just wondering how much of an effort we should be

17 expending at this point in going forward if, I mean,

18 I just look around the room, and I can calculate how

19 much per hour we're running up here.

20 But you all have a better feel on that than I do.

21 We can proceed if that's the appropriate course.

22 MR. GREEN: Mr. Menton, I'd just like to make a

23 reflection without agreeing or disagreeing with the

24 legislation. I think based on the description you

25 might think I disagree with it, based on some earlier

1 statements I have made, which could be correct, but

2 we are kind of going through some practice bleeding

3 here potentially at the expense of our clients, who

4 have undergone tremendous expense, and I'm not suggesting

5 what should be done about it, but for example we have

6 people flying in from all over the place in preparation

7 for this hearing this week and next week while we're

8 running around in this rat cage, so to speak, and I

9 wish there were a better way to do that.

10 If the Legislature is going to moot out this

11 hearing, whether we agree with the legislation or not,

12 it doesn't make a lot of sense to go through this fire

13 drill.

14 If there were a way that it could be structured to

15 minimize the potential waste to my clients we would

16 appreciate that.

17 MR. KILLINGER: I just don't think, again I know

18 I'm not authorized to come in and request a continuation

19 of this. Our direction is to go ahead and proceed with

20 it. If the legislation passes we will go with it that

21 way.

22 I don't know if anybody at the table has any

23 authorization any different way, but I expect they

24 don't. I don't think anybody will have the ability to

25 say we suggest doing anything different than the present

1 schedule.

2 (WHEREUPON, MR. SMALLRIDGE ENTERED THE HEARING

3 ROOM.)

4 HEARING OFFICER: Okay. Any comments from the

5 District or anything else anyone wants...

6 MR. LEHTINEN: Mr. Hearing Officer, this is Dexter

7 Lehtinen.

8 HEARING OFFICER: Yes, sir.

9 MR. LEHTINEN: Since the Miccosukee Tribe has,

10 has been a traditional opponent of continuances, and we

11 also do oppose the legislation, but in all honesty

12 it would appear to the Miccosukee Tribe that it would

13 not be unfair for there to be some brief continuance.

14 We are an opponent of the legislation, but it does

15 appear that the Legislature, you know, is supportive of

16 it, and that it will pass, and the reason we are not

17 there today is that we do expect that it will have a

18 substantial effect on your proceedings, so I'll just

19 say for the record, you know, a several week delay in

20 light of the clear fact that the legal parameters may

21 change, you know, would not be opposed by the Tribe,

22 and it seems reasonable to not put people to the expense

23 of preparing for something that may change.

24 It may not eliminate it. It may be the permit

25 may come later and so forth, but in any event we would not

1 oppose the reasonable time needed to evaluate the

2 effects of any legislation that passes.

3 There's no hidden agenda there. It just seems

4 like the next couple of weeks would not be of great

5 value until you know what the legislation would say.

6 HEARING OFFICER: Okay. Let me get an update as

7 to where we stand. The discovery cutoff was last

8 Friday, and there were one or two matters that I

9 believe were continued over as a result of the

10 conference calls we had and the agreements of the

11 parties.

12 Where do we stand on the discovery and what

13 efforts do the parties expect are going to be necessary

14 in order to get this thing ready to go to hearing?

15 We are scheduled for the 25th. It seems to me

16 that it may be that we can save everybody a little bit

17 of time and expense and create a little breather in

18 here necessary until we see what the Legislature does.

19 If the Legislature doesn't pass something or if it

20 passes something that's vetoed or something we can

21 gear this thing up pretty quickly, given that we have

22 completed most of the discovery.

23 Where do we stand on discovery, and what other

24 efforts are outstanding to be done before we get to

25 hearing?

1 MR. BURGESS: Mr. Hearing Officer, there are

2 written discovery interrogatories and admissions that

3 we have served on other parties, I think the admissions

4 in an effort to streamline the hearing. There are some

5 authenticity admissions, and there are some more

6 substantive admissions. Those are pending, and responses

7 are due I believe on April 17 and April 20.

8 In addition, interrogatories are outstanding and

9 are either due or just overdue as of last Friday.

10 With resect to depositions, we believe U. S. Sugar

11 has set Dr. Reddy tomorrow and Wednesday. I believe

12 at our last hearing I brought that up and told you he

13 was under subpoena for those two days.

14 I don't know that we have any other...

15 MR. EARL: Dr. Davis has been offered, that was

16 the subject of some controversy, has been offered and

17 is available tomorrow if we proceed. Dr. Dennis is

18 available this Friday, I found that out this morning,

19 if we proceed at this time.

20 I don't know what other ones are...

21 MR. GREEN: I believe Dr. Shannon is available,

22 what, Friday?

23 MR. PERKO: (Nodding head.)

24 MR. GREEN: He will be available for continuation

25 of a deposition Ms. Ponzoli started, and Mr. Sams had an

1 item that's pending.

2 MR. SAMS: Mr. Hearing Officer, we had not brought

3 to a full conclusion the matter of the deposition of

4 Mr. McGee of EPA.

5 At the time we argued that motion before you

6 Ms. Ponzoli pointed out that the deposition taken about

7 a year ago of Dell Hicks of EPA, another EPA employee,

8 would appear to represent the agency's position on

9 the interrelationship between nutrient enrichment

10 and mercury contamination.

11 I spoke Friday with Ms. Ponzoli, and it's my

12 understanding that Dr. Hicks has reviewed that deposition

13 and his working hypothesis as he articulated it in his

14 deposition is still the working hypothesis of EPA on

15 that issue.

16 Subject to her confirming that we would not find

17 it necessary to go forward to seek either a further

18 deposition of Mr. McGee or Dr. Hicks.

19 HEARING OFFICER: Ms. Ponzoli?

20 MS. PONZOLI: We did speak by phone, and I have

21 had Mr. Hicks review his deposition, and he does adhere

22 to the hypothesis expressed in that deposition between

23 mercury and nutrients, and he had at that time indicated

24 that he might in a year or two years have more.

25 It's been a year. He does not. EPA is aggressively

1 collecting and analyzing data, but the hypothesis

2 has not changed.

3 MR. SAMS: May I speak to that? Because of that

4 I would withdraw the motion to compel Mr. McGee's

5 deposition.

6 HEARING OFFICER: Okay.

7 MR. GREEN: We had one other.

8 MS. RAEPPLE: Mr. Hearing Officer, there are

9 some pending depositions in the economics area.

10 When Dr. Luke gave his deposition he indicated he

11 may need to do some additional work, depending on what

12 came out with regard to alternatives through the

13 course of discovery.

14 It does appear there would be some additional work

15 he will be doing, and the Justice Department, Keith

16 Saxe asked if we could defer the deposition of their

17 economist until he had an adequate opportunity to

18 review. There's a lot of digital or computer data,

19 and so we have agreed to push off into the future the

20 deposition of Lonnie Jones and in addition Grace Johns,

21 who is the economist for the Water Management District,

22 as well as the wrapup of Dr. Luke's deposition, until

23 the future, and we would recognize it may take place

24 during the course of the hearing or during the break,

25 but we are in agreement on that.

1 As soon as Dr. Luke is complete, which should be

2 within the next couple of weeks, I will notify the

3 federal government and make him available, and we can

4 proceed.

5 We believe we will be able to do all of that

6 through agreement of parties.

7 HEARING OFFICER: Okay.

8 MR. PERKO: Mr. Menton, one other item relative

9 to Dr. Landing's documents. He's been advised you

10 have requested his position by Wednesday of this week.

11 He is meeting with FSU attorneys today and is

12 prepared to, will be prepared to provide his position

13 at that time.

14 HEARING OFFICER: Okay.

15 MS. PONZOLI: Will the be contacting me?

16 MR. PERKO: Yes, ma'am.

17 MS. PONZOLI: May I ask, Mr. Green, I didn't

18 understand about Dr. Shannon. Did you say he's

19 available now or will be available in the future?

20 MR. GREEN: I thought from Mr. Perko's Friday,

21 did we say...

22 MR. PERKO: Two weeks ago we said he was

23 available Friday.

24 MS. PONZOLI: I was never informed of that.

25 We need to figure out if I can do him Friday.

1 MR. GREEN: It could be arranged at your convenience

2 and his.

3 MS. PONZOLI: But he's finished?

4 MR. GREEN: I think he's ready, yes.

5 MR. EARL: Mr. Menton, we also as you are probably

6 aware of the pending motion in limine, it relates to

7 Mr. McVicker's deposition, but the broader issue I think

8 is the SWIM plan.

9 Perhaps there's something else which isn't directly

10 pending but I think you should be aware of it,

11 particularly if I catch the drift of your earlier

12 inclination.

13 It may become even consolidated into this proceeding,

14 and that is we just learned last Monday through a

15 deposition that on February 1st DEP issued a permit

16 to the Army Corps of Engineers on the S-10, S-11, and

17 S-12 sites. That's despite three written requests

18 to the Department and two written assurances back that

19 we would receive direct notice. We didn't receive

20 notice. It was issued. We don't know if it was

21 published.

22 No one else knew about it, at least not on

23 petitioners' side. It was issued on February 1st,

24 and that relates to the structure going into the

25 National Park along Water Conservation Area 2 and Water

1 Conservation Area 3. Those are the Corps on those

2 structures.

3 That is our view if we proceed, that needs to be

4 litigated at the same time as part of the same matter,

5 and the permit conditions are absolutely unique in

6 terms that there are no conditions to the permits.

7 They make a good faith effort to do whatever they

8 think is right.

9 HEARING OFFICER: These are District permits to

10 the Corps or what?

11 MR. EARL: To the Army Corps of Engineers, water

12 quality permits, purporting to be water quality

13 permits for the S-10, S-11, and S-12 from DEP.

14 HEARING OFFICER: From DEP?

15 MR. EARL: Yes. They are supposed to be as I

16 understand it the same sort for permits that we have

17 pending that DEP is going to issue that you just heard

18 about to the Water Management District, but they are

19 markedly different in terms of content and substance of

20 them.

21 HEARING OFFICER: Okay. Now I have never fully

22 understood what the District has done. The only

23 challenge that I have goes to the, quote, "A" permits,

24 and I know there were some "B" permits, too, and I

25 don't think anybody ever filed any challenges to the "B"

1 permits, as I recall.

2 MR. KILLINGER: The "B" permit has not been

3 issued. It is still in completeness/response type

4 stage.

5 HEARING OFFICER: Okay, and I have never quite

6 understood exactly what the difference is between the

7 "A" and the "B". As I understood the "A" it had to do

8 with the structures involved in the STAs?

9 MR. KILLINGER: Generally that's correct.

10 HEARING OFFICER: And the "B" has to do with the

11 other structures...

12 MR. KILLINGER: The remaining structures.

13 HEARING OFFICER: ...operated by the District?

14 MR. KILLINGER: What Mr. Earl is referring to is

15 the permit to the Army Corps of Engineers for operating

16 the "S" structures, S-10, S-11 and S-12.

17 Although I did get a call from Judy Kavanaugh

18 last week, I don't know if I have gotten a response

19 to it yet or not, and you all wanted to know about the

20 issuance of the permits. I don't know if that's

21 something that would be germane to get into those

22 in this proceeding or not.

23 HEARING OFFICER: I guess what he's doing is

24 he's laying the ground work for bringing this up if

25 we have to if we're going to go ahead. He's going to

1 try to consolidate a challenge to it with this

2 proceeding.

3 MR. KILLINGER: I'm not sure if that would be

4 appropriate at this time.

5 HEARING OFFICER: Probably if it did come up it

6 would be in connection with the permit challenge, which

7 we have already rolled over to later on anyway in the

8 course of events, so you would have an opportunity

9 to submit your position on that prior to, it's not

10 like we would start that April 25th.

11 MR. EARL: Correct.

12 HEARING OFFICER: Are these permits that are

13 issued to the Corps? Is there a similar permit that has

14 to be issued to the District for the same structure?

15 MR. EARL: As I understand, the same permit is

16 issued for the S-5A and S-6, S-7, and S-8. That's

17 the original Dexter Lehtinen lawsuit against the

18 state that the U. S. Attorney was about to get the

19 permits.

20 The settlement agreement to get DEP permits for

21 those structures, the settlement agreement, the District

22 agreed that they would get such permits, and that is

23 phase two of this hearing you've been talking about,

24 the Army Corps of Engineers signed something that

25 said, "We'll apply for permits, the same sorts of permits,"

1 and that's where that stands.

2 As I said, we have no notice, but those were

3 issued.

4 MS. PONZOLI: Mr. Menton, on behalf of the United

5 States, If it's any comfort to Mr. Earl, I was unaware

6 of those, but I would like to preserve for the United

7 States all objections to consolidating his permit

8 challenge to those in this particular case.

9 HEARING OFFICER: Certainly. My comments

10 certainly were meant only to say we will have an

11 opportunity to everybody to address those issues if we

12 need to, and I don't necessarily mean to imply I would

13 grant such a consolidation or that it's appropriate.

14 But it seems to me that since the permit phase of

15 the case is going to be much later anyway, we will

16 have ample opportunity to address those aspects of it.

17 I guess after hearing all of this stuff that's

18 going on here it seems obvious to me that we're in a

19 real critical phase here while we wait and see what

20 the Legislature does, if anything, and it does seem

21 like there would be a considerable amount of wasted

22 effort to going ahead and act like the Legislature is

23 not doing anything, when it clearly, a bill is passed

24 in both chambers, and it may be a matter of reconciling

25 the differences. I don't know exactly what those

1 differences are.

2 I have broken out obviously the next several

3 months for this hearing, so if we have to push the

4 start of the hearing back a couple of weeks in order to

5 save everybody a little bit of effort, probably everybody

6 could use the breathing time, and the opportunity to

7 regroup and gather their thoughts, so it's probably the

8 most prudent course at this time.

9 So I think maybe the best way to proceed is to have

10 those discovery issues that are still outstanding,

11 Dr. Reddy's deposition, Dr. Davis' deposition, Dr.

12 Dennis, Dr. Shannon, have the parties confer regarding

13 those to see whether they perhaps should be postponed

14 until next week, until we have a little clearer idea

15 of what the Legislature has done, if anything, and if

16 that's not possible then proceed and complete those

17 this week, just so we know that they're available, and

18 they can be done, and we won't have any remaining

19 discovery issues, and move the start of the hearing back

20 two weeks.

21 I think probably everybody could use the time

22 anyway. I think everybody else probably has the same

23 schedule plugged out that I do, so I don't think there

24 will be any conflicts from that perspective.

25 I think it's probably the best way to do it.

1 Maybe what we can do is set up a conference call

2 or another hearing next week to try to take stock

3 with what the Legislature has done and how it impacts

4 on the case.

5 I don't know that there really is any room for

6 dispute, at least in the drafts of the bills I have

7 seen with regard to the STA challenges. It seemed in

8 looking that the Statute it was pretty clear to me that

9 at least with a challenge before DOAH that there's

10 no longer a statutory basis for it if that legislation

11 passes.

12 So I don't know that the permit issue is quite as

13 clear as to what will happen and what the basis for

14 the challenges would be, but those are the issues

15 we can address if the legislation passes. Mr. Reid?

16 MR. REID: So we finish up the discovery we all

17 described to the extent it will be finished up now, and

18 basically would not have to take any other actions until

19 at least, say, next week when we reassess...

20 HEARING OFFICER: Right. I think the way we

21 should do this is maybe set up a day for the hearing. I

22 don't know what the Legislature is intending. They

23 are coming back Wednesday and Thursday, and they have

24 to wait 72 hours to pass out the budget.

25 MR. REID: Could I ask by Wednesday, not before

1 Wednesday? I'm tied up Monday and Tuesday.

2 HEARING OFFICER: I was going to suggest

3 Wednesday anyway. Why don't we try to set something

4 up for next Wednesday? I think we should be safe in

5 knowing that the Legislature has completed its business,

6 and we'll have a better opportunity to determine where

7 we stand.

8 As I indicated with respect to the discovery

9 issues, to the extent they can be rolled back to next

10 week it may be that they won't have to be completed

11 at all, and we can save everybody some effort, but if

12 there are problems with availability of witnesses or

13 if there's no agreement, then complete those.

14 For example, Dr. Reddy is scheduled for tomorrow.

15 If he is not going to be available next week or if

16 we're going to run into a problem before the start

17 of the hearing completing him, which would be two weeks

18 from the 25th...

19 MR. BURGESS: May 9th.

20 HEARING OFFICER: ...the ninth, then take him

21 tomorrow. But if he can be moved back, go with that,

22 and the same with the other witnesses as well.

23 MR. REID: Can I ask one question about the written

24 discovery? Should we move up the response, time for

25 filing?

1 HEARING OFFICER: Why don't we do that?

2 MR. REID: Two weeks?

3 HEARING OFFICER: Two weeks.

4 MR. REID: So whenever it's due we'll do it two

5 weeks later.

6 HEARING OFFICER: Why don't we do that? I know

7 that there are a number of other outstanding stipulations

8 and so forth. If the Legislature does not pass a

9 bill to obviate this proceeding, then I think next

10 Wednesday everybody ought to be prepared to show up

11 here and get down to the bottom line and get everything

12 worked out and ready to go.

13 MR. BURGESS: Ten a.m.?

14 HEARING OFFICER: At 10:00 a.m. next Wednesday.

15 MR. REID: When will the hearing date be?

16 MR. BURGESS: May 9th.

17 HEARING OFFICER: And I don't know if there are

18 any others.

19 I did have, there was one provision, I want to know

20 who will take the responsibility for the language in

21 this draft bill that I have. It's on page 15 of the

22 House Bill 2883. This has just been one that's stuck

23 in my brain, and it reads as follows, "The District

24 shall not delay implementation of the project beyond

25 the time delay caused by those circumstances and conditions

1 that prevent timely performance."

2 MR. EARL: Ms. Ponzoli demanded that.

3 (LAUGHTER.)

4 HEARING OFFICER: I want to know where that

5 came from.

6 MS. PONZOLI: I don't think you believe that.

7 MR. FITZGERALD: Mr. Hearing Officer, if I gave you

8 a name would you do it off the record, without the

9 other side calling that ex parte?

10 MR. GREEN: The person who drafted that is not in

11 the room.

12 MR. FITZGERALD: Exactly right.

13 HEARING OFFICER: Any other matters today? Does

14 that take care of what everybody thinks is appropriate

15 for now? Any objections that want to be voiced on the

16 record?

17 Okay. This is a record for the duration of the

18 hearings we have had in this case.

19 MR. FITZGERALD: We should have more like this.

20 HEARING OFFICER: Ten o'clock next Wednesday.

21 MR. FITZGERALD: Thank you, Your Honor.

22 (WHEREUPON, THE HEARING WAS CONCLUDED AT 10:36 A.M.)

23 * * * * *

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 29, 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 11TH DAY OF APRIL, 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 11th day of April, 1994, by SUE HABERSHAW

23 JOHNSON, who is personally known to me.

CHRISTINE WHEELER

25 Notary #AA711091