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, MAY 9, 1994

(10:24 A.M. - 11:24 A.M.)

LOCATION: HEARING ROOM 3, 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.:

4 WILLIAM H. GREEN, ESQUIRE

GARY PERKO, ESQUIRE

5 Hopping, Boyd, Green & Sams

123 South Calhoun Street

6 P. O. Box 6526

Tallahassee, Florida 32314

7 (904-222-7500)

8 Representing Petitioners, Florida Sugar Cane

League, Inc., and United States Sugar

9 Corporation:

10 WILLIAM L. HYDE, ESQUIRE

Earl, Blank, Kavanaugh & Stotts

11 Suite 350

215 South Monroe Street

12 Tallahassee, Florida 32301

(904-681-1900)

13 -and-

14 RICK J. BURGESS, ESQUIRE (via telephone)

ROBERT BLANK, ESQUIRE (via telephone)

15 Earl, Blank, Kavanaugh & Stotts

One Biscayne Tower, Suite 3636

16 Two South Biscayne Boulevard

Miami, Florida 33131

17 (305-358-3000)

18 Representing Petitioners, Florida Fruit and

Vegetable Association, Lewis Pope Farms,

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

Farms, Inc.:

TERRY COLE, ESQUIRE

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

Suite C

22 2700 Blair Stone Road

Tallahassee, Florida 32301

23 (904-877-0099)

1 APPEARANCES, CONTINUED:

2 Representing Intervenor, The United States

of America:

SUZAN HILL PONZOLI, ESQUIRE

4 THOMAS A WATTS FITZGERALD, ESQUIRE

Assistant United States Attorney

5 Southern District of Florida

Third Floor

6 99 Northeast 4th Street

Miami, Florida 33132-2111

7 (305-536-5477)

8 -and-

9 MIKE REED, ESQUIRE (via telephone)

KEITH A. SAXE, ESQUIRE (via telephone)

10 United States Department of Justice

Environmental & Natural Resources Division

11 General Litigation Section

Room 879, 601 Pennsylvania Avenue

12 Washington, D.C. 20004

(202-272-4016)

Representing Intervenor, Florida Department of

14 Environmental Protection:

15 LEE M. KILLINGER, ESQUIRE

DONNA LA PLANTE, ESQUIRE

16 Assistant General Counsel

Department of Environmental Protection

17 640 Twin Towers Office Building

2600 Blair Stone Road

18 Tallahassee, Florida 32399-2400

(904-488-9730)

Representing Respondent, South Florida Water

20 Management District:

21 PAUL L. NETTLETON, ESQUIRE,

Schnobrick & Kaufman, Ltd.

22 400 International Place

100 Southeast Second Street

23 Miami, Florida 33131

(305-539-7222)

-and-

1 APPEARANCES, CONTINUED:

2 Representing Respondent, South Florida Water

Management District:

RUTH P. CLEMENTS, ESQUIRE

4 South Florida Water Management District

P. O. Box 24680

5 3301 Gun Club Road

West Palm Beach, Florida 33416-4680

6 (407-686-8800)

Representing Intervenor, Florida Wildlife

8 Federation:

9 DAVID GUEST, ESQUIRE (via telephone)

LORI ERICKSON, ESQUIRE (via telephone)

10 111 South Martin Luther King, Jr., Boulevard

Tallahassee, Florida 32302

11 (904-681-0031)

12 Representing the Intervenor, Miccosukee Tribe of

Indians:

ANGEL CORTINAS (via telephone)

Representing Florida Audubon Society:

CHARLES LEE, ESQUIRE (via telephone)

* * * * *

INDEX

ITEM PAGE

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

HEARING CONCLUDED . . . . . . . . . . . . . . . . . . 49

CERTIFICATE OF REPORTER . . . . . . . . . . . . . . . 50

1 PROCEEDINGS

2 (WHEREUPON, THE HEARING COMMENCED AT 10:24 A.M.,

3 AT WHICH TIME MS. CLEMENTS WAS ABSENT FROM THE CONFERENCE

4 CALL.)

5 TELEPHONE OPERATOR: Bob Blank?

6 MR. BLANK: Yes.

7 TELEPHONE OPERATOR: Thank you. Rick Burgess?

8 MR. BURGESS: Yes.

9 TELEPHONE OPERATOR: Thank you. Keith Saxe?

10 MR. SAXE: Yes.

11 TELEPHONE OPERATOR: Mike Reed?

12 MR. REED: Yes.

13 TELEPHONE OPERATOR: Thank you. Charles Lee?

14 MR. LEE: Yes.

15 TELEPHONE OPERATOR: Thank you. Sue Habershaw?

16 COURT REPORTER: Here.

17 TELEPHONE OPERATOR: Hearing Officer Menton?

18 HEARING OFFICER: Here.

19 TELEPHONE OPERATOR: I have a new ID Number for

20 your call if you need further assistance this morning,

21 WE, as in David, 09390, and to reach me, 1-800-232-1234,

22 and thank you for using AT&T. Have a nice day.

23 HEARING OFFICER: Thank you. Good morning. This

24 is Steve Menton in Tallahassee. Let me start by having

25 the parties who are present enter their appearances,

1 beginning with the League.

2 MR. HYDE: Bill Hyde on behalf of the League.

3 HEARING OFFICER: For the Coop?

4 MR. GREEN: Bill Green and Gary Perko.

5 HEARING OFFICER: Fruit and Vegetables?

6 MR. COLE: Terry Cole.

7 HEARING OFFICER: The Water Management District?

8 MR. NETTLETON: Paul Nettleton.

9 HEARING OFFICER: For the Department of

10 Environmental Protection?

11 MR. KILLINGER: Lee Killinger and Donna LaPlante.

12 HEARING OFFICER: For the United States Government?

13 MS. PONZOLI: Suzan Hill Ponzoli and...

14 COURT REPORTER: I'm sorry. I cannot hear who's

15 there with Ms. Ponzoli.

16 MS. PONZOLI: Tom Watts Fitzgerald.

17 TELEPHONE OPERATOR: Thank you.

18 HEARING OFFICER: Okay, for the intervenors

19 represented by the Sierra Club?

20 (Inaudible)

21 COURT REPORTER: I'm sorry. I could not hear that.

22 HEARING OFFICER: Legal Defense Fund.

23 MR. GUEST: David Guest and Laura Erikson.

24 HEARING OFFICER: Any other appearances that need

25 to be made?

1 MALE SPEAKER: (Inaudible) for the Miccosukee

2 Tribe.

3 HEARING OFFICER: You are here on behalf of

4 Mr. Lehtinen then?

5 MALE SPEAKER: Yes.

6 HEARING OFFICER: Okay.

7 MR. LEE: Florida Audubon Society. I'm Charles

8 Lee on behalf of the Florida Audubon Society.

9 HEARING OFFICER: Okay, any other appearances that

10 have to be made on the telephone?

11 Okay. This hearing was scheduled this morning to

12 review the status of the proceedings in view of the

13 Legislature's enactment of the Everglades Forever Act.

14 I have received a motion to dismiss as filed on

15 behalf of the Water Management District. That motion was

16 joined in by all parties except for the Cooperative and

17 the Audubon Society, is that correct?

18 Okay. I have received a response to the motion to

19 dismiss that was filed by the Cooperative this morning,

20 and, Mr. Green, as I read your response you do not

21 dispute the assertion that there is no jurisdiction at

22 the Division of Administrative Hearings to hear

23 challenges to the SWIM Plan that was enacted, and

24 essentially you have just preserved some objections

25 that you had, if I read your motion correctly?

1 MR. GREEN: That's correct, Your Honor, and we

2 felt it would be appropriate in light of the length of

3 these proceedings and the expenses that all of us went

4 through for all parties involved that we file depositions

5 in the record.

6 I'm not sure what the permit proceedings will do,

7 and in any event at some point we assume it will be

8 back to the Division, and we must preserve our work

9 product. That was the only other...

10 HEARING OFFICER: And we can do it in a little

11 more detail later on as to how we're going to handle

12 that and what we want to do.

13 I just want to get a reading to see if there was

14 anybody who was objecting to the position asserted by

15 the District that essentially the Division of

16 Administrative Hearings no longer has jurisdiction.

17 Mr. Lee?

18 MR. LEE: We would agree with the position of the

19 District. We think that the matter is moot as a result

20 of the legislation.

21 HEARING OFFICER: Okay. Just so that everybody is

22 clear, then in view of the fact that there is no

23 opposition stated and in view of my reading of the

24 legislation that's been enacted and signed by the

25 Governor I do not believe that I have any jurisdiction

1 to continue with the challenges to the SWIM plan,

2 which are Case Nos. 92-3038, -3039, and -3040. The

3 permitting cases we can discuss in a minute.

4 But, Mr. Nettleton, your motion I guess essentially,

5 you're seeking just an order of dismissal on the basis

6 it is moot? Is there any particular provisions that need

7 to be included you think within the scope of the order,

8 simply just cite the statute, so the District can have

9 it back?

10 MR. NETTLETON: I believe that's fine from our

11 standpoint, the proceeding for the legislation and the

12 facts filed, but we have not passed around a proposed

13 order.

14 I am happy to do that if you want to, add another

15 layer.

16 I don't have...

17 COURT REPORTER: Excuse me. This is the court

18 reporter. I'm having difficulty hearing you.

19 MR. NETTLETON: I don't have any specific provisions

20 in writing for the standard order dismissing the

21 proceeding provided by the legislation, the relinquishing

22 of jurisdiction.

23 HEARING OFFICER: Okay. Well, I can go ahead and

24 draft an order to that effect, or if there are any

25 parties that have any specific language that they feel

1 needs to be included. I think everybody is ready to

2 get it over with.

3 I'll go ahead and draft an order up dismissing

4 those three cases.

5 There are some loose ends that I felt needed to be

6 tied up and go to some of the matters that Mr. Green

7 has raised, in particular relating to some of the

8 discovery issues.

9 As I tried to think back on the course of the

10 proceedings over the last couple of years there were a

11 couple that I remembered in particular where some

12 objections on the privilege grounds that had to do with the

13 mercury and testing in the EAA, and I believe at that

14 point it was ultimately, the objections were removed on

15 that, if I'm not mistaken, so there's really no issue

16 that can be resolved in that area.

17 TELEPHONE OPERATOR: Excuse me. I have added to your

18 conference call Ms. Clements.

19 HEARING OFFICER: Okay. Welcome, Ms. Clements.

20 MS. CLEMENTS: Thank you.

21 HEARING OFFICER: We have discussed what to do

22 with the challenges to the SWIM Plan, and all parties

23 are in agreement there is no longer any jurisdiction

24 at the Division of Administrative Hearings, so I will do

25 an order dismissing those challenges.

1 We are now trying to figure out what some of the

2 loose ends are regarding discovery, etcetera.

3 The mercury issue, there is no need to do anything

4 with it. Dr. Landing and the EPRI materials, there was a

5 protective order that was done at one point and agreement

6 regarding some of the depositions.

7 I don't know if there are any particular protections

8 that need to be taken with respect to those depositions

9 and the information that was included in those. I don't

10 know. Ms. Ponzoli, do you have any...

11 MS. PONZOLI: I did not attend the actual

12 depositions, and I don't know if there were questions

13 about materials that we have not closed.

14 Maybe Mr. Green or Mr. Perko. I'm not aware that

15 there were any depositions with questions on those

16 documents.

17 MR. GREEN: I don't know.

18 MR. PERKO: Mr. Menton, I attended Dr. Landing's

19 deposition.

20 COURT REPORTER: Excuse me. Who is this speaking?

21 MR. PERKO: This is Gary Perko.

22 TELEPHONE OPERATOR: Thank you. And everyone needs to

23 speak up, because I do not have as good a speakerphone

24 as you have down at DOAH.

25 HEARING OFFICER: Okay, Mr. Perko, you were saying

1 that...

2 MR. PERKO: I don't recall any questions regarding

3 those patterns, but I would have to review the

4 depositions to make sure.

5 HEARING OFFICER: Okay. I just want to make sure

6 before I relinquish jurisdiction over this matter that

7 we can make sure those are resolved once and for all,

8 so do you want 10 days to look at those issues and then

9 let me know, and I'll withhold doing my order until I

10 get some word from you as to whether or not I need to

11 incorporate anything regarding those items?

12 Because as I remember it essentially the documents

13 that were being produced, they were going to be held by

14 the federal government and not be disclosed outside the

15 scope of these proceedings, and any depositions that

16 were going to be sealed or portions of those depositions

17 or whatever. They may not even have been transcribed.

18 I don't know.

19 But I just don't want anybody to get into trouble

20 with the protective order if we can void it, so

21 take a look at those and let me know if there's anything

22 that needs to be included in my order dismissing these

23 cases, and if I don't hear from you I'll just do the

24 order and assume there are no problems in that regard.

25 MS. PONZOLI: That's fine. The United States does

1 does...

2 COURT REPORTER: I'm sorry, I cannot hear you,

3 Ms. Ponzoli.

4 MS. PONZOLI: The United States does intend to

5 make its documents from these proceedings public, so if

6 the Cooperative or Dr. Landing has any portion of the

7 depositions they feel they need to have removed or

8 sealed, they should let us know about that, because they

9 will be turned over to the public.

10 MR. PERKO: Mr. Menton, in that regard the

11 Cooperative would be entering an objection to those

12 documents being public. I think...

13 COURT REPORTER: Is that Mr. Perko?

14 MR. PERKO: Yes, Mr. Perko. I was saying I think

15 it would be appropriate to make sure everyone has no

16 objection to making the material available. They made

17 objections in the first place.

18 HEARING OFFICER: And as I recall your agreement

19 was with EPRI rather than with the Cooperative, because

20 we kind of shortcut the proceeding to get this thing on

21 track so we could get ready for hearing.

22 MS. PONZOLI: Well, the agreement was with EPRI,

23 but it was also with Dr. Landing, so frankly I don't have

24 any problem with contacting EPRI, but so far as going

25 to Dr. Landing I would ask...

1 HEARING OFFICER: I think that's fine. Okay.

2 And if you need more than 10 days let me know.

3 MS. PONZOLI: That would be more than enough.

4 HEARING OFFICER: Okay. This may resolve it.

5 Those were the only two protective order type issues

6 that I could recall. Now there may have been more

7 that have slipped my memory.

8 MR. GREEN: There was an issue, I don't think it's

9 controversial, but an informal arrangement with regard to

10 computer models with respect to Infotech and Tetra Tech,

11 both of which we were protecting, and counsel informally

12 agreed to receive them and not copy them and distribute

13 them. We would like to get them back. Infotech is the

14 model I believe kept by the United States at this point,

15 and Tetra Tech by the District.

16 HEARING OFFICER: Mr. Nettleton?

17 MR. NETTLETON: I don't think that's a problem.

18 We agreed to turn them back in.

19 MR. FITZGERALD: Mr. Hearing Officer, along the line

20 of...

21 COURT REPORTER: I'm sorry, but I can't hear him.

22 MR. FITZGERALD: The intent of the United States

23 was to as soon as possible make them available to

24 researchers and the public, the benefit of the effort

25 that has been expended from the clients' perspective.

1 It's our understanding on the Tetra Tech model

2 the time was, the stipulation at that time of the model

3 was to other purposes, and the EPRI wanted it closed. As a

4 result...

5 COURT REPORTER: I'm sorry. I cannot hear.

6 MR. FITZGERALD: Still can't hear?

7 COURT REPORTER: No, sir, I cannot. You need to

8 get closer to the phone, please.

9 MR. FITZGERALD: As a result of the understanding

10 that developed with regard to the Tetra Tech model

11 it is closed, but as testified earlier we are desirous

12 of making the complete documentation in this case as

13 soon as possible available to the public in general,

14 whether it's scientific research...

15 And that may well settle part of the issue.

16 Dealing with this, I would just ask you consider

17 in that vein the model, further negotiations between the

18 United States and the company, manipulated or otherwise,

19 there was some identifying, so it will allow the

20 researchers to use the model we have, data provided by

21 Tetra Tech be public, so that my researchers would have,

22 we would be able to determine what in fact position

23 we are in. It's an accommodation...

24 COURT REPORTER: I cannot hear, sir.

25 MR. FITZGERALD: (Inaudible.)

1 MR. GREEN: I would respond we would consider that,

2 and we would like the models back first. It is the

3 clients' property. Our client doesn't with to cooperate

4 on scientific issues, but I think they should elect how

5 to do that, and this is their proprietary interest in

6 it, and i feel that our arrangement anticipated we would

7 seek it back.

8 MR. FITZGERALD: Mr. Hearing Officer, I think this

9 is true, but I don't think we are in a position to do

10 that. We can agree that absent agreement this is not

11 included in any public archive documents.

12 It's not to bring back something in discovery that

13 they were obligated to do any more than we would give

14 back the other exhibits. We are entitled to do so...

15 HEARING OFFICER: Okay. I don't remember this issue

16 coming up before me during the course of the discovery

17 process. It may have. I mean, I have already forgotten

18 a lot.

19 But I don't know that there was a protective order

20 that was ever entered. Was there a written agreement

21 between the parties?

22 MR. GREEN: No, Your Honor. Let me give you the

23 history briefly.

24 There was an earlier version of the model, and we

25 brought that to your attention, about a year the first

1 time around.

2 The parties agreed at hearing to , that we would

3 distribute the model to the District, DEP, and the

4 United States at that time, and I think it was 30 days,

5 and then we would receive it back. We didn't receive

6 it back.

7 The second time I thought we didn't take your time

8 up. Mr. Reid received that document at the deposition, and

9 we provided the District with the same courtesy.

10 We have claimed proprietary interest in this. Our

11 client paid for this dearly. If they want to share it

12 with the world I think it's their decision and not the

13 decision of the United States of America, because

14 I take this as a reneging on the understanding as I

15 heard it from Mr. Fitzgerald, and I was not involved

16 in the discussion in the first place. I would like to

17 ask Mr. Reid what his understanding was.

18 MR. FITZGERALD: Mr. Hearing Officer, I certainly

19 defer to Mr. Reed and his recollection, but I was not

20 proposing releasing anything to the public on that

21 model.

22 We certainly intend to honor the understanding of

23 that, and it would not be further discovery or released

24 outside the hands of the parties in this case, who had a

25 legitimate chance to review it. Their designated witnesses

1 utilized it. The issue was void absent any agreement.

2 The archives is not your problem. It's that

3 counsel just asked it be returned, and he's also saying

4 they plan to come back some time. It's not clear to

5 me that that obligation is there.

6 MR. GREEN: If we come back that would be

7 discoverable, and it would be part of the hearing

8 process.

9 This is the first time, I am offended by this, I hate

10 to use that word, the first time we have ever heard such

11 a conversation about the United States has a right to

12 hold this model in their possession without copying and

13 distributing it. It was supposed to be returned. It

14 is not right.

15 It was given under those understandings, and

16 that's our understanding, and I don't think it's fair

17 to our clients or to this process to allow this to go

18 further.

19 MR. NETTLETON: Mr. Hearing Officer, on behalf of

20 the District we did agree I believe to turn back our

21 copy of the model, but I should say that we also had

22 advised the Cooperative at the time that we did not

23 agree with their position as to the proprietary interest

24 in it, or that it was not, it was subject to some

25 protective order, and we thought it was discoverable

1 even including any later aspects.

2 We are running into a time deadline or were at

3 that time to go to hearing, and we needed it for that

4 understanding.

5 I prefer not to have to fight it out now, but I

6 just wanted to say that was our position, that it

7 was not protectible, but we agreed to turn it back.

8 HEARING OFFICER: Okay, Mr. Reed, did you have

9 anything you wanted to add on that?

10 MR. REED: Yes, Your Honor, we did receive that

11 tape with the understanding that it was being given to

12 us if we would give it back.

13 I think it's one of the things we can work out in

14 the 10 days to deal with the other issues.

15 HEARING OFFICER: Okay. Why don't we do that. I

16 mean, even if this case is coming to a close I'd

17 feel a lot better.

18 But, Mr. Green, I understand your point, and I also

19 understand what Mr. Nettleton is saying.

20 I know as we were dealing with the time pressures

21 there were a lot of issues that we deferred, but just

22 in order to reach some accommodation so we didn't have

23 to spend a lot of time arguing discovery issues.

24 If we need to set up a hearing, then I'll make a

25 ruling as to whether that is discoverable or not, and

1 I'll give you all an opportunity to brief it.

2 Talk to your clients and see if there's some

3 accommodation that can be reached there, and if not

4 we'll schedule another conference call and wind it up

5 that way if we have to.

6 But I don't think that they have necessarily raised

7 their or waived their right to claim that it was

8 discoverable and was part of the materials that

9 should have been produced.

10 Whether your client has a legitimate proprietary

11 interest, you certainly will have an opportunity to

12 argue that before I agree that they are going to be

13 able to keep it as part of their records of the

14 litigation process.

15 MR. GREEN: I'd like to state quite clearly for the

16 record that I appreciate your ruling, but Mr.

17 Nettleton and Mr. Reed just said they both agreed to

18 return it.

19 HEARING OFFICER: Well, I think Mr. Nettleton said

20 they agreed to return it but more as a way of avoiding

21 having to come through the motion practice and arguing

22 ad nauseam, given the time crunches that everybody

23 was under.

24 I don't think they have waived their rights. I

25 don't know exactly what transpired, but from what I'm

1 understanding from Mr. Nettleton they simply agreed to

2 do that in order to get it and get their experts working,

3 rather than as an acknowledgement that your position

4 was correct.

5 MR. GREEN: I would ask if they would do that.

6 HEARING OFFICER: All right, well, see if you can

7 work it out. If you can't let me know, and we'll set up a

8 conference call with regard to that.

9 Okay. Are there any other discovery issues anyone

10 wants to talk about or resolve?

11 MR. HYDE: Mr. Menton, this is Bill Hyde on behalf

12 of the League.

13 This is a rather minor matter that will probably

14 be concluded by the U. S. if they make them available,

15 but during the course of the entry and access to the

16 Refuge a good bit of samples were taken that were

17 ultimately processed by Dr. Ron Jones, and they were done

18 in a blind fashion.

19 We need to get the sampling efforts so we know

20 which phosphorus readings correspond with which sample

21 sites.

22 This is very important to us, as frankly it is to

23 all parties concerned, because that data will be part

24 of an ongoing baseline for the Refuge, which as you

25 know is in a very central issue in this. We'd like to

1 get for lack of a better term a key if you will for

2 that data sampling.

3 HEARING OFFICER: Mr. Ponzoli?

4 MS. PONZOLI: I believe that we have fully

5 responded to all of the various requests of Dr. Jones.

6 I think...

7 COURT REPORTER: I can't hear you. I'm sorry.

8 HEARING OFFICER: She can't hear.

9 MS. PONZOLI: This is Suzan Ponzoli. We have

10 fully responded to all of the League's requests to

11 Dr. Jones, and he has been deposed for numerous

12 extended periods of time.

13 This is, I believe we are being asked to enter a

14 document, and I expect their jurisdiction has been

15 extinguished, and we have no obligation to create any

16 documents. We have an obligation to create a document

17 when we were actually in the process of litigation.

18 If such a document exists, I have no problem.

19 They will obviously require the collection, and the

20 data came in through the collection.

21 One of the south Florida activities will be

22 proceeding with the collection, and it is available to

23 virtually anyone who wants to get it.

24 MR. BURGESS: Mr. Hearing Officer, this is Rick

25 Burgess. If I could address this point.

1 HEARING OFFICER: Let her finish first.

2 MS. PONZOLI: I don't believe there is any obligation

3 to create a document. I would object, given the

4 additional work assignments...

5 I have documents that I would very much like to have

6 from the Cooperative and other people, because I would

7 like to have them to know these things, but when it's

8 over it's over, and I believe it's over.

9 HEARING OFFICER: If I understand Mr. Hyde correctly

10 he's saying there were some samples that were taken on a

11 blind basis, and somewhere some of them would have had

12 to have had an ability to identify where the

13 particular samples were taken, so they could understand

14 the significance of the blind sampling.

15 MS. PONZOLI: But all those documents were turned

16 over. What they are saying is they can't locate the

17 appropriate document. I have no documents.

18 MR. BURGESS: Mr. Hearing Officer, if I may...

19 MS. PONZOLI: I gave them everything.

20 HEARING OFFICER: Okay, Mr. Burgess?

21 MR. BURGESS: Mr. Hearing Officer, if I may, this

22 is a very specific issue. It doesn't deal with Ron

23 Jones' deposition documents but rather the entry and

24 access order that was entered in December of 1992.

25 Pursuant to that order each side was to exchange

1 monthly water quality sampling results from the

2 Loxahatchee for the period of one year.

3 We, the League, sent ours to the United States.

4 The United States and Mr. Fitzgerald sent theirs to us.

5 However, the last month of sampling, in November of

6 1993, the United States began randomizing its sample

7 bottles, so no longer did Bottle No. 1 go with

8 Station No. 1, and instead we had 16 or 32 samples,

9 because there were replicates from the Loxahatchee that

10 did not correspond to the stations, making that one

11 month worth of data essentially useless for purposes of

12 establishing a 12-month baseline.

13 We're not asking the United States to create any

14 additional documents. We did not receive as part of the

15 entry and access data the key or index which would tell

16 us that Bottle A goes with Station 13, and I understand

17 the United States has offered to make all of the

18 science available to us.

19 However, this is a very discrete and specific

20 question or item that deals with the entry and access

21 information which was to be received on a monthly

22 basis.

23 There is correspondence on this point. We wrote

24 Mr. Fitzgerald on March 15 and again on April 18

25 requesting this key index.

1 HEARING OFFICER: You wrote to who? I'm sorry.

2 MR. BURGESS: Tom Fitzgerald.

3 HEARING OFFICER: I don't know if Dr. Jones was

4 doing the entry and access, or was it somebody else?

5 I would think that would be something that's readily

6 available.

7 MALE SPEAKER: Now Dr. Jones did not personally

8 collect the samples.

9 HEARING OFFICER: Okay.

10 COURT REPORTER: Who was that that just made that

11 question?

12 HEARING OFFICER: Mr. Fitzgerald.

13 COURT REPORTER: Thank you.

14 HEARING OFFICER: Can you check with whoever was

15 doing the actual testing and see if there is such a

16 document? There has to be a document. Otherwise

17 it's not worth anything.

18 MR. FITZGERALD: That's a pretty fair assumption.

19 HEARING OFFICER: Check and see if there is such a

20 document. I don't think you have to create a new

21 document if there wasn't one. If for some reason that

22 month's data is not worth anything, then that would

23 come out sooner or later.

24 But check on that, and within the 10 day time

25 period, and see if you can get an answer to Mr. Burgess.

1 I don't think there's really a matter of dispute

2 here. It's just a question of whether such document

3 exists.

4 MS. PONZOLI: In that same vein, Dr. Shannon's

5 final report was furnished to me in lieu of finishing

6 his deposition in the discovery, and on several

7 occasions Mr. Perko assured me that he would share that

8 final report.

9 MR. GREEN: Here it is. We've got it for you.

10 MS. PONZOLI: Oh, that's fine. It's the same

11 thing. It's either over, or it's not over. I mean...

12 HEARING OFFICER: Okay, why don't you give it to

13 her. I'm not trying to open any new doors. It's

14 turned into more than I thought this hearing would

15 be.

16 MR. FITZGERALD: Just to satisfy our curiosity...

17 MS. PONZOLI: Wait until I get the report.

18 HEARING OFFICER: I guess we will just have to end

19 this thing the way we began it.

20 MR. NETTLETON: Well, Mr. Hearing Officer, I didn't

21 plan to bring this up, I think you can do it informally,

22 but I was going to put it on the record.

23 I know we requested some information from the

24 League on their malleleuca initial data that the

25 District was interested in.

1 HEARING OFFICER: About which I know absolutely

2 nothing, but I'm certain that we will be forthcoming

3 with everything, and we'll get this resolved.

4 MR. NETTLETON: I certainly don't want to reopen

5 discovery, and I think we can handle that informally.

6 HEARING OFFICER: Well, I don't want to reopen

7 discovery, but I do think it's important we try to tie

8 up as many loose ends as possible before everybody

9 starts saying protective orders were violated or whatever.

10 On the one hand, you know, I joke about having to

11 go through all these things, but if it serves the

12 purpose I think it does then I think we need to

13 resolve as many of these as we can and hopefully avoid

14 disputes down the line.

15 Are there any other discovery issues we needed to

16 talk about?

17 MR. GREEN: Talk about, I just want to make a few

18 points briefly.

19 In whatever order you would issue we did have some

20 non-waiver language in our paragraph four on page six

21 of our response.

22 HEARING OFFICER: I just skimmed through your

23 response, because I just got it this morning.

24 MR. GREEN: It was not written with a final order

25 in mind, but I would just ask you if you would to look

1 at that when you issue your order to make sure you

2 cover it.

3 If you can address our concerns in this issue

4 we feel it's appropriate.

5 The last point in our paragraph five, 60 days,

6 whatever times, there are a lot of witnesses who haven't

7 signed their depositions, and of course you haven't

8 gotten to that point yet, but we think it would be

9 helpful if we memorialized the depositions, to have

10 them signed, and the parties file them.

11 HEARING OFFICER: Okay, there are two issues

12 there. The first deals with your paragraph four, where

13 are you asking me to include in my order of dismissal

14 some specific portion of your paragraph four here? And

15 if so I would I guess probably somebody would want to

16 object to that.

17 MR. GREEN: Non-waiver part, Your Honor, not

18 obviously, you are on your own.

19 MR. FITZGERALD: That's been a jurisdiction by the

20 Legislature...

21 COURT REPORTER: I'm sorry. I'm having great

22 difficulty hearing. Hello?

23 MR. FITZGERALD: It seems to us there is no such

24 thing as a little jurisdiction in an administrative

25 body. You have it, or you don't, and it appears to us.

1 there is only one order, and it's extremely limited

2 that's appropriate and legally available to be

3 entered, and that is to relinquish and identify this

4 in the pleadings.

5 I think you are correct to the extent that any party

6 wants to start dovetailing into that order their view of

7 what remains or what they may be able to do sometime in

8 the future or immediately, but it has no proper place.

9 The legal effect of the Legislature's action is

10 whatever, and this is not the right way.

11 It is important to sort that out, both what

12 you acknowledge and what I think we will acknowledge in

13 this hearing as easily identifiable in the course of

14 this action.

15 HEARING OFFICER: Well, I don't disagree with what

16 you're saying, but I do think that if there are

17 certain formalities that have to be followed within the

18 scope of the legal proceeding, for purposes of closing

19 out this case and sending it back to the District and

20 having them do a final order, that creates the

21 completion of the administrative process for purposes of

22 the appellate review if anybody wanted to seek that.

23 So I think there is an order that has to be done,

24 and exactly how that order is framed or worded is

25 open to discussion, and that's why we're here.

1 I understand your position that the Legislature

2 has intervened in this whole proceeding, and that's true,

3 but I think in order for the parties to protect whatever

4 appellate review they may seek, either on the

5 Constitutionality or whatever, that they have an

6 opportunity to suggest any way that is appropriate,

7 some language in the order of dismissal.

8 I don't think we are talking about whether I have

9 jurisdiction to enter an order granting access or any

10 additional discovery or anything like that, because I

11 think that would be clearly inappropriate, but in terms

12 of exactly how the order of dismissal reads so that

13 it satisfied whatever purposes may be necessary down the

14 road I'll give them an opportunity to suggest that.

15 I don't think that will necessarily do it, but I

16 think he has a right to suggest it, so the record is

17 clear and he doesn't have to go through four or five

18 file cabinets of documents to figure out where we are.

19 MR. KILLINGER: If I may for the record, this is

20 Lee Killinger, I think Mr. Green made it abundantly

21 clear for the record that his clients do not

22 intend to make a waiver. It's not appropriate to

23 incorporate that in the order from the Hearing

24 Officer, recommended order back to the Water Management

25 District, whereupon the Water Management District will

1 have to take some action, taking it up or not.

2 HEARING OFFICER: I don't think it's a question of

3 getting into the exact language that he's suggested, but

4 I guess what I was thinking in terms of drafting an order

5 of dismissal in this case is simply to state very

6 briefly this history of the proceedings. "We came over

7 here on such and such a date, we had a hearing scheduled,

8 and as a result of the legislation the hearing has been

9 motted and dismissed," and simply make clear in the order

10 of dismissal that there was never a hearing on the

11 merits of any of the challenges or any of the issues

12 that were raised.

13 I think that's all he's asking me to do.

14 MR. KILLINGER: I think that's different from what

15 he's asking you to do.

16 HEARING OFFICER: It may be, I agree with you it

17 may be a little bit different than the language that you

18 have, but to the extent that I was going to do it that's

19 the way I would do it.

20 MR. KILLINGER: If I may I'd like to object to

21 the discussion in paragraph five. I don't think it's

22 proper to deal on an evidentiary point, and I want to

23 object to it.

24 HEARING OFFICER: Well...

25 MS. PONZOLI: While you're doing that...

1 HEARING OFFICER: That was another issue I said

2 this morning in terms of what we are going to do.

3 At this point none of the depositions have been

4 filed with me, and that's been the way the whole

5 proceeding has worked, and, Mr. Green, I'm not sure exactly

6 what you want me to even, I don't know how I can do

7 that.

8 If I do an order of dismissal, the record is

9 closed, and the Clerk's Office is going to treat it

10 as a closed case, so anything that you send in to me

11 is simply going to go into the dead file and may get

12 transmitted to the District or may not.

13 I don't know.

14 MR. GREEN: That's why, Your Honor, we asked you

15 hold off issuing your order until it's rendered.

16 It's complicated by the fact you have a consolidated

17 permit proceeding, so it isn't entirely on these issues.

18 HEARING OFFICER: Well, I think, and that get us

19 to the permitting cases, which was the next issue we

20 were going to get to.

21 The permitting cases were never formally

22 consolidated. We talked about them extensively during

23 the course of these proceedings, but because the review

24 process was so different we never did an order of

25 consolidation, and we had talked about rolling over

1 some of the discovery and some of the testimony during

2 the course of the final hearing into the permitting

3 case, and I think there was a general consensus that

4 that would be done.

5 There are some questions in my mind in reviewing

6 the legislation as to exactly what the status of the

7 permitting cases are and what we do with them.

8 I did receive this morning Mr. Nettleton's, I

9 guess it was Mr. Killinger filed a motion to relinquish

10 jurisdiction regarding all of the permitting cases, and

11 I noted that motion indicates the parties want to study

12 that issue further.

13 I don't know if there is opposition to dismissing

14 the permitting cases or whether there's any benefit of

15 trying to keep those open or what, so I'm open to

16 suggestions in that regard.

17 I don't know that I fully understand what the

18 legislation impacts on the permitting cases is.

19 In that regard there is also the question that

20 Mr. Earl raised at one point regarding the DEP permits

21 to the Corps. He had suggested at one point he may

22 seek somehow to consolidate a challenge to those

23 permits, and I don't know where that stands.

24 No such motion has ever been filed, nor do I know if

25 any challenges have been filed.

1 MR. FITZGERALD: Mr. Hearing Officer, this is

2 Tom Watts Fitzgerald. Apparently Mr. Earl was somewhat

3 in error when he addressed that issue, because in

4 fact we've got a pending request for...

5 COURT REPORTER: I'm sorry. You're fading out.

6 MR. FITZGERALD: In fact, let me cut this short.

7 We have a pending request for consolidating, and as far

8 as I know there are no formal challenges pending at

9 this time. It will issue a consolidation of a potential

10 permit challenge, I think...

11 HEARING OFFICER: Okay, but, you say, permits haven't

12 been issued?

13 MR. FITZGERALD: We have been advised by our

14 clients that the time period...

15 COURT REPORTER: I can't hear him.

16 MR. FITZGERALD: ...that the time period elapsed,

17 and I would agree with the..., that no specific

18 challenge was filed.

19 HEARING OFFICER: Okay.

20 MR. HYDE: Mr. Menton, we are kind of mixing

21 things here. Let me just make a brief point here, and

22 I think this would probably explain some of your

23 assumptions.

24 There is dispute I guess or a potential dispute

25 as to whether appropriate and timely notice was given

1 to the League and the Cooperative regarding the total

2 issues of permits, and it may be at this time if we

3 decide not to pursue a challenge in the permits as

4 such, but that isn't what the issue is at this time

5 for the Department of Environmental Protection.

6 HEARING OFFICER: Okay, well, I simply raised

7 that, because I was trying to think through what was

8 going to happen with the permit, that one issue that I

9 had in the back of my mind, and that's been brought up,

10 but we haven't gotten it resolved.

11 I think that the two main issues we have to deal

12 with today are what to do about discovery with

13 respect to the permitting cases and also whether we deal

14 with the permitting cases generally.

15 Do I just dismiss those and send them back to the

16 District and let this start at zero?

17 I think there may be some benefit for all parties

18 concerned in terms of shortcutting the discovery process

19 on future challenges if some of that is rolled over,

20 but I don't know how we do it.

21 MR. KILLINGER: If I may, a suggestion to the

22 motion for jurisdiction, to give it back to the

23 Department, where it maintains itself until the

24 District makes a determination or it is done by

25 discovery whether they are going to pass the pending

1 applications that were filed.

2 Obviously if they withdraw the present applications

3 then there's nothing to challenge. All of those will

4 be dismissed.

5 If they seek to amend the permit application and

6 send it back over, that permit application if we do

7 it after reviewing it then I think a new notice of

8 intent will have to be given to the interested parties

9 and have a final petition.

10 If it is filed and sent over to the Department,

11 even if they amend it, I mean, I'm not sure it would be

12 at DOAH, but these are significantly dissimilar.

13 The criteria for issuances are different, and the

14 new bill from the old and the technical plan that is

15 embodies and incorporated...

16 COURT REPORTER: I'm having trouble hearing.

17 MR. FITZGERALD: Trouble hearing. The criteria for

18 issuance of the permits are different in the new

19 bill from the old, and that's the plan that's embodied

20 and incorporated in the new one, different in the

21 location and siting of the STAs are going to be

22 different, and the new intent will be substantially

23 different, and the bids will have to be substantially

24 different.

25 The appropriate thing to do would be to relinquish

1 jurisdiction back until the next stage occurs. We

2 don't know what it will be yet.

3 HEARING OFFICER: Okay, Mr. Nettleton or

4 Ms. Clements, do either of you have any light to shed

5 on what the District intends to do yet in that

6 respect?

7 MR. NETTLETON: I believe as Mr. Killinger stated

8 that the statute requires us by June 1st, which is about

9 three weeks from now, to amend or file a new

10 application.

11 I don't know that the District has made a

12 determination or the route they're going.

13 They're working on it now, and it's a question of

14 timing as much as anything else if they have to get it

15 done by June 1st, whether that will require amendments

16 of any new application.

17 We are beyond this point with the point it's

18 going.

19 I think the controlling point here is not whether

20 it is amending or confirming a new one, because as

21 Mr. Killinger said we are dealing with a different

22 animal now.

23 The statute that existed, the Douglas Act, the

24 interim permit issues are no longer applicable.

25 Our current statute requires the Department to issue this

1 new permit under the new criteria.

2 It will be a different agency action at that point

3 when they issue their notice of intent on that, and

4 everybody's rights will be preserved if there is a

5 challenge at that point.

6 I view it essentially as the proceedings in the

7 SWIM Plan, the procedurals are a little bit different,

8 but I don't think the substance is that much different.

9 So far as preserving discovery and so forth,

10 obviously we had hoped that would not occur, but if it

11 should occur I don't know that it's appropriate in

12 this proceeding, which my view has been rendered moot

13 by the legislation, to be filing some 100 or 200

14 depositions at DOAH to use at some hypothetical future

15 proceeding until we know what issues will be involved,

16 and the case law says how you use previous discovery

17 in other cases and the relevancy of the issues. It will

18 depend on the parties in the proceeding and represented

19 in this proceeding.

20 I think that has to be dealt with in the future

21 proceeding, if there is one.

22 MR. HYDE: This is Bill Hyde for the League. I

23 think that Paul makes a very good point here, and I

24 would have to say that my preliminary response to

25 Mr. Killinger's motion is I think it's well taken.

1 I think we are a somewhat different animal here,

2 which unlike the SWIM Plan which has been legislatively

3 decreed, the permit could well result in future

4 proceedings, and I think it's important to give us a

5 little bit of time here to analyze just what impact

6 this is going to have on the future proceedings to

7 address among other things this very issue of

8 preservation of evidence and use of evidence.

9 Let us have a little time to analyze that and

10 prepare an appropriate response to it.

11 HEARING OFFICER: Mr. Green?

12 MR. GREEN: I agree with Mr. Hyde that a little time

13 would be helpful, Your Honor.

14 One thing is troubling. The District hasn't

15 decided which way they want to go. I'm not sure why

16 they want to send this back to DEP before the

17 District has yet decided which way they want to go, and

18 the Legislature gave the District an option, and

19 until they decide to withdraw their application I'm

20 troubled by the notion that somehow the files should be

21 sent to DEP and sit there for a while, and maybe

22 come back over here again. I'm not sure that's

23 appropriate.

24 HEARING OFFICER: Mr. Nettleton, I understand

25 your position that the legislation has obviously changed

1 the nature of the STAs and has changed the review

2 process and criteria, and to be perfectly frank I'm

3 not sure I totally understand how it has changed and

4 how it would be applied.

5 I really don't have any problem doing it whatever

6 way, if there's an agreement between the parties as to

7 how we want to do it.

8 My only concern in raising this issue is that if

9 I were to simply dismiss the permit challenges that

10 that could somehow alter irrevocably the nature of

11 the future proceedings.

12 In other words, if I were to dismiss it, then

13 you've got a new case, and you've got to go through all

14 of this stuff about whether in discovery it has to be

15 turned over or not, whereas if it stays open you've

16 got the argument at least it's just a modification

17 proceeding and whatever happens in the discovery, it

18 happens.

19 But, you know...

20 MR. NETTLETON: Mr. Hearing Office, I think we

21 are going to have that issue in any case anyway,

22 whether it's new material or whether you put a new

23 case number on it or not.

24 So I don't think that saves anybody. Personally

25 I believe this will be a new notice of intent with new

1 points of entry, and that we will preserve everybody's

2 rights.

3 On part of the District determining whether they

4 are going to do it I don't think we are talking the

5 same thing here. The Legislature gave us an option of

6 which way we're going to do it, and it doesn't have...

7 HEARING OFFICER: Mr. Green just had to get his

8 one last little bard in there.

9 Well, all right, I think it's fair to give

10 Mr. Green and Mr. Hyde an opportunity to address the

11 issues that are raised there. I don't think there's

12 any urgency with respect to what we do on the other

13 permitting cases.

14 Like I say, I don't have a problem doing it

15 anyway. I'm just afraid if I were to simply do an order

16 dismissing it that that may force create the process

17 for the future case.

18 It may, your point may be right that there's no

19 way to avoid it, but you have an argument that there

20 are some things that can carry over if we do it within

21 the same case. It may not be the way the District

22 wants to go or may not even be a viable option.

23 MR. NETTLETON: Mr. Hearing Officer, I think in

24 drafting...

25 COURT REPORTER: Can you speak up just a little,

1 please?

2 MR. NETTLETON: I'm sorry. This is Paul

3 Nettleton. I think in drafting the motion that was

4 filed today by the Department that we were sensitive

5 to this issue, because we have been discussing it

6 informally and so forth with the various parties, and

7 I think what addresses that, I don't believe the motion

8 requests dismissal and relinquishment. I don't know if

9 that makes more difference or not on the substantive

10 detail.

11 HEARING OFFICER: I understand, and I'm not sure

12 it makes a difference, either. Hopefully no one will

13 ever have to argue it or brief it.

14 But I just didn't want to do something that was

15 going to renew one of the arguments that was made on

16 that issue.

17 So, and I think it's fair for them to have an

18 opportunity to respond to that motion. Certainly the

19 jurisdictional issue with respect to our permitting

20 cases are not as clearcut as it is with respect to the

21 SWIM Plan case.

22 So why don't we do this. I'll give them, Mr. Green

23 and Mr. Hyde, is 10 days enough to file a response to

24 the motion filed by the Department with respect to the

25 permitting cases, and it may be that you will look at it

1 and agree with the suggestion that Mr. Killinger has

2 made, and if so you can simply file something, or let

3 my office know that you agree with it, and we'll take

4 care of it that way.

5 If there are some issues we have to take up, those

6 cases are still pending, so we can deal with those as

7 we get your responses in.

8 Okay. Any other matters we need to discuss today?

9 MS. PONZOLI: Have you come to some...

10 COURT REPORTER: I can't hear you.

11 MS. PONZOLI: Excuse me. This is Suzan Ponzoli.

12 Have you come to some preliminary finding on the

13 filing of the depositions and the supporting documents?

14 HEARING OFFICER: I guess we did not resolve that,

15 did we? Mr. Green, did you want to argue that point a

16 little bit further? I think you...

17 MR. GREEN: Well, Your Honor, we're sort of in a

18 gray area, but our basic motivation is there has been

19 about two years in depositions among the parties, and

20 we ought to preserve that information the best way

21 possible.

22 And archive it I think of the depositions to be

23 filed unsigned. There may be questions of dotting

24 "I's" and crossing "T's", but I picked 60 days

25 because I thought it would give everybody a lot of

1 time. Then we would not be going through a fire drill.

2 We think it would be in the best interest of all

3 the parties. Frankly I'm a little surprised in light

4 of what Mr. Fitzgerald said that he wants the public

5 to have the benefit of all this information, so if we

6 could spend just a little time filing the depositions

7 and getting them in shape then I think that would be in

8 our best interests.

9 MALE SPEAKER: This is a procedure one can do.

10 All they are doing is...

11 COURT REPORTER: I'm sorry. I cannot hear.

12 MALE SPEAKER: (Inaudible.)

13 COURT REPORTER: I'm sorry. I cannot hear.

14 MR. GREEN: This is Mr. David Guest speaking.

15 MR. GUEST: (Inaudible.)

16 COURT REPORTER: I cannot hear at all.

17 MR. GUEST: (Inaudible.)

18 COURT REPORTER: Is this off the record?

19 MR. GUEST: No. This is Mr. Guest speaking.

20 COURT REPORTER: Thank you.

21 MR. GUEST: A lot of people have in this case.

22 I think this is an effort to get the record to be

23 judicially noted for another case, and it's not

24 called for by the rules.

25 You don't do that in any other circumstances. They

1 can be preserved by just keeping them in the file

2 cabinets. Everybody has a copy anyway, so there's no

3 rule for this.

4 HEARING OFFICER: Okay, I think Mr. Green has

5 raised two points. One is to make sure that the

6 depositions are signed by the parties that gave the

7 depositions, and I think there is a procedure, it shows

8 you how long I've been out of private practice, and

9 I don't remember exactly how long it is, but there's a

10 certain time period for which a deponent has to review

11 his deposition and make any corrections that are

12 necessary, and as I recall it's an automatic disqualifying

13 if they don't send it back within a certain time, isn't

14 that right?

15 MR. NETTLETON: Mr. Hearing Office, I think that's

16 kind of on a case-by-case basis. I don't think there's

17 a statute that says 10 days or 30 days.

18 the court reporter normally sends out a letter.

19 The complexity of this case and the number of

20 depositions, I don't think that's followed in practice.

21 What has been happening is the depositions on

22 experts and asking them to read them, there have not been

23 specific deadlines. The court reporter is saying if you

24 don't get it back...

25 My concern is having to call our experts up after

1 they have gone through that process. There was a

2 large segment right at the end that were being deposed,

3 and having them go back now and ask for additional

4 things for that purpose I don't think is the practice

5 of this case.

6 Now if it becomes relevant in some future

7 proceedings then you can do it, but I don't see why

8 we would want to do it at this point.

9 Secondly, the depositions as stated are going to be

10 publicly available, as you stated. They are available

11 now. They are available for anyone.

12 I don't see any reason to have to go through

13 that exercise of boxing up and filing hundreds of

14 depositions to DOAH.

15 HEARING OFFICER: That goes to Mr. Guest's second

16 point. I don't think our office is equipped to serve

17 as the archival for the Everglades, and to be perfectly

18 frank I don't know in fact in most instances when a

19 case is closed all that stuff would be discarded anyway,

20 so you would file it, and then we would get rid of it

21 as the case is closed, and it may be discarded, so in

22 terms of filing with us I don't think it's going to

23 serve the purpose that you're seeking. So...

24 MR. NETTLETON: Maybe just another point, maybe

25 to make them feel more comfortable.

1 From the District's standpoint, having been

2 involved in the discovery, they are certainly

3 interested in avoiding duplicative functions as much

4 as possible, and I think something along the lines can

5 be worked out.

6 HEARING OFFICER: So there may be that the

7 District can serve as the repository? That's probably

8 the more appropriate place anyway.

9 So what I can do is go ahead and do my order on

10 relinquishing jurisdiction, and if you would work out

11 something with Mr. Nettleton to put those in the

12 record with the District or whatever, because the

13 District has to do a final order anyway, even after

14 I do it, so they would generally just serve...

15 We would send all our exhibits if the case went

16 to hearing and there were all of these depositions in it,

17 I'd send them all to the District anyway, the ones

18 who would be holding a record on it.

19 MR. NETTLETON: I don't want to volunteer the

20 District for accepting tons of documents, either.

21 I was suggesting that the ones we already have

22 are public record, but I don't know that the District

23 has actually ordered every deposition or not. I think

24 we can work it out in future proceedings.

25 HEARING OFFICER: Okay. For purposes of this I

1 don't think that it's appropriate to be filing

2 depositions here, so I'll go ahead and do my order of

3 dismissal, and you can take whatever steps you think are

4 appropriate as the District level.

5 And if they are not willing to do it then I'm

6 not sure what your recourse will be.

7 In terms of signing of the depositions, I think

8 it does come back to the jurisdictional question. I

9 don't know that there's anything I can really do in

10 that regard, in view of what has happened in the

11 Legislature.

12 I don't recall how the process works. I have been

13 out of it for too long. And I always thought if they

14 hadn't signed or stated their objections on a certain

15 day the deposition was deemed to be accurate.

16 I'm not sure on that. I can't help you out on

17 that.

18 Okay. Any other issues? That's it, huh?

19 COURT REPORTER: Before they hang up I need to get

20 the name of the man representing the Miccosukee

21 Indians or the lady. I could not hear the name at all.

22 MR. CORTINAS: Angel Cortinos, A-n-g-e-l

23 C-o-r-t-i-n-a-s.

24 COURT REPORTER: Thank you.

25 HEARING OFFICER: Okay. No further issues today?

1 Okay.

2 Just to summarize, I will do an order dismissing

3 these proceedings. I'm going to wait 10 days just in

4 case there are some issues regarding the discovery

5 issues we talked about, and after 10 days I will do

6 an order and relinquish jurisdiction, sending it back

7 to the Water Management District with respect to the

8 challenges to the SWIM Plan.

9 On the permitting cases I will wait 10 days and

10 get responses from anybody interested in filing something

11 to address the issues raised by Mr. Killinger.

12 If anybody feels there's a need to further argue

13 that, request that in your response, because otherwise

14 I'll just take the motion and do an order, based upon

15 what I view is appropriate, so we don't have to do

16 any more of these conferences.

17 And I think that ties up all the issues that I

18 had. Any other matters to talk about? Okay. Thank you

19 very much.

20 (WHEREUPON, THE HEARING WAS CONCLUDED AT

21 11:24 A.M.)

22 * * * * *

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 49, 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 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 11th day of March, 1994, by SUE HABERSHAW

23 JOHNSON, who is personally known to me.

CHRISTINE WHEELER

25 Notary #AA711091