More on Day 1 of the Administrative Hearing on MFLs
The cast of characters:
Judge Bram Canter
MFL Challenger Paul Still
Lawyers for FDEP
Lawyers for SRWMD
Ed de la Parte, lawyer for JEA in Jacksonville
Ed de la Parte objected to the Ichetucknee Alliance’s witnesses because he was not provided a list of names except for John Jopling’s. It might have been one of the other lawyers who referred to Alliance members who had not yet arrived as “imaginary people.” Judge Canter exercised his discretion and allowed us to proceed with swearing in our members and giving them the chance to make statements. Although those statements will not be considered as official evidence, they were strong, moving, and spoke directly to the fact that the Ichetucknee and Lower Santa Fe Rivers are degrading at alarming rates.
Alisa Coe of Earthjustice gave the opening statement: This case is about the future of the rivers and springs, the largest concentration of springs in the world and the “iconic” Ichetucknee and Santa Fe Rivers. Groundwater withdrawals are causing declines that include low flows, decreased numbers of fish, and dead vegetation. MFLs were established to prevent this harm. We are challenging the regulatory portions of the rule, which do not account for increases in groundwater pumping and which render the recovery plan unworkable. In short: The MFL rule is aimed at the wrong target, prevents recovery, and will not even maintain the status quo.
In response to that statement and statements by the lawyers for FDEP and SRWMD, the judge ruled that we could proceed based on the argument that the “rule prevents recovery.”
Alisa Coe called Alliance President John Jopling to the witness stand. Jopling gave strong testimony on behalf of the river. He explained how and why the Alliance was formed and spoke to our mission as contained in our bylaws. One of the lawyers for “the other side” made the mistake of referring to the Alliance as a “club,” to which Jopling replied, “I’m not here on behalf of a club.” Imagine a cat hissing at someone and you will get a good image to go with that statement! (My opinion only.) My favorite quote from Jopling was this: “This rule is built upon a fiction that the present state of affairs was not caused by present consumptive uses…the rule makes the problem worse.”
Perhaps not surprisingly, Jopling was not cross-examined by the other lawyers.
Monica Reimer then called Tom Kiger, a hydrologist with SRWMD who worked on the recovery plan, and we were treated to objection after objection to the questions Reimer asked—objections that, amazingly, included the District and FDEP objecting to having their own documents (some of which are posted to their websites) admitted as evidence, including the Statement of Estimated Regulatory Costs (SERC) and SRWMD’s own 2010 Water Supply Assessment!
In both cases, the judge admitted the documents. About the water supply assessment, he remarked, “The agencies should be happy to have it used.” In almost every other case, the judge overruled the agencies’ lawyers’ objections.
Judge Canter was not, however, without criticism of the Earthjustice lawyers: “I don’t want battles about exhibits when the witness is right here.”
I believe it is fair to say that FDEP and SRWMD lawyers objected to 99.9 percent of the questions that Reimer asked. Judge Canter, while giving Reimer some coaching, allowed her to proceed. After this back-and-forth had gone on for quite a while, Ed de la Parte joined the agency lawyers at their table and began to offer his objections on behalf of JEA. Without fail, FDEP and SRWMD lawyers agreed with his objections.
The “other side” continued to press with questions about what is being challenged. Judge Canter: “I’m allowing the petitioner to challenge the recovery strategy.”
Given the non-stop objections, the judge stepped in to pick up the pace and began to ask questions of the witness himself. Discussions included the recovery strategy and the thresholds used to evaluate consumptive use permits.
The day concluded with Paul Still’s questioning of the witness. De la Parte then suggested that the judge impose time limits on the lawyers for direct questioning of witnesses, to which the judge replied, “I’ve never done that. I’m usually satisfied with badgering them (Note: meaning the lawyers, not the witnesses). I’m not going to do that.”