Item L1* 1:30 P.M. CLOSED SESSION *
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 3/16/11 - MAR Division: County Attorney
Bulk Item: Yes No XX Staff Contact Person: Bob Shillinger, 292 -3470
AGENDA ITEM WORDING:
An attorney -client closed session in the matter of Florida Key Deer, National Wildlife Federation, et.
al. v FEMA & USFWS (United States District Court, S . Florida No 90- 10037- CX- MOORE).
ITEM BACKGROUND:
This is the litigation involving inclusion of many properties on a list for which FEMA subsidized
insurance is prohibited. The County filed a Motion to Intervene which was denied. On 2/16/11, the
BOCC approved filing an appeal in this matter.
Under F.S. 286.011(8), the subject of the closed session will be confined to settlement negotiations or
strategy sessions related to litigation expenditures. Participating at the closed session will be the County
Commissioners, County Administrator Roman Gastesi, County Attorney Suzanne Hutton, Chief
Assistant County Attorney Bob Shillinger, Assistant County Attorneys Susan Grimsley and Derek
Howard and a court reporter.
PREVIOUS RELEVANT BOCC ACTION:
2/16/11 BOCC approved Attorney -Client Closed Session for 3/16/11 @ 1:30 p.m. in Marathon
2/16/11 BOCC approved filing an appeal
CONTRACT /AGREEMENT CHANGES:
N/A
STAFF REC0MAMNDATIONS:
N/A
TOTAL COST: Court Reporter costs INDIRECT COST: BUDGETED: Yes No
DIFFERENTIAL OF LOCAL PREFERENCE:
COST TO COUNTY: Court Reporter Costs SOURCE OF FUNDS:
REVENUE PRODUCING: Yes _ No xx AMOUNT PER MONTH Year
APPROVED BY: County Atty X OMB/Purchasmg Risk Management
DOCUMENTATION: Included Not Required X
DISPOSITION: AGENDA ITEM #
Revised 2/05
BOARD OF COUNTY COMMISSIONERS
County of Monroe Mayor Holly Merrill Raschein,District 5
Mayor Pro Tem James K.Scholl,District 3
The Florida Keys Craig Cates,District 1
., Jl Michelle Lincoln,District 2
Robert B.Shillinger,County Attorney** David Rice,District 4
Pedro J.Mercado,Sr.Assistant County Attorney**
Cynthia L.Hall,Sr.Assistant County Attorney**
Derek V.Howard,Sr.Assistant County Attorney** Office of the County Attorney
Christine Limbert-Barrows,Assistant County Attorney** I I11 12'Street,Suite 408
Peter H.Morris,Assistant County Attorney ** Key West,FL 33040
Patricia Fables,Assistant County Attorney (305)292-3470 Office
Joseph X.DiNovo,Assistant County Attorney** (305)292-3516 Fax
Kelly Dugan,Assistant County Attorney
Christina Cory,Assistant County Attorney
Nathalia Archer,Assistant County Attorney
**Board Certified in City,County&Local Govt.Law
January 17, 2024
Kevin Madok, CPA
Clerk of the Court, 16'Judicial Circuit
Monroe County Courthouse
500 Whitehead Street
Key West, FL 33040
In Re: Florida Key Deer, et al. v. Fugate, et al., Case No.: 90-cv-10037,U.S.District Court,
Southern District of Florida
Dear Mr.Madok:
Please find attached scans of five transcripts of the attorney-client closed sessions held before the Monroe County
Board of County Commissioners on:
March 16, 2011;
April 20, 2011;
June 15,2011;
October 19, 2011; and,
December 14, 2011,
in connection with the above-referenced litigation. The litigation has concluded;under Fla.Stat.286.011(8),the
transcripts may be made part of the public record once litigation has ended.
Thank you for your assistance in this matter. Please contact me if you have any questions.
Sincerely
Digitally signed by Cynthia L.Ball
DN:cn-Cynthia L Nall,o-Monroe
County UOCC,ou,email-hall-
@� cynthiaC monroecounty-tl.gov,
_us
Date:2024.01.1615:56:06 05'00'
Cynthia L.Hall
Senior Assistant Monroe County Attorney
Attachments: Scans of Closed Session Transcripts dated 03/16/2011; 04/20/2011; 06/15/2011; 10/19/2011, and
12/14/2011
BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY
ATTORNEY-CLIENT CLOSED SESSION
WEDNESDAY, MARCH 16, 2011 1
3 : 35 - 4 : 14 p.m. COPY
Re : Florida Key Deer, National Wildlife Federation, et al .
v. FEMA & USFWS, United States District Court, S . D.
Florida No . 90-10037-CIV-MOORE
COUNTY COMMISSIONERS :
Heather Carruthers, Mayor
Kim Wigington, County Commissioner
David Rice, County Commissioner
George Neugent, County Commissioner
Sylvia J. Murphy, County Commissioner
STAFF:
Suzanne A. Hutton, County Attorney
Robert B . Shillinger, Chief Assistant County Attorney
Derek Howard, Assistant County Attorney
Susan Grims1ey, Assistant County Attorney
Roman Gastesi, County Administrator
TRANSCRIPT OF PROCEEDINGS
Proceedings of the Board of County Commissioners
of Monroe County Attorney-Client Closed Session, at the
Marathon Government Center, 2798 Overseas Highway,
Marathon, Monroe County, Florida, on the 16th day of March,
2011, commencing at approximately 3 : 35 p.m. and concluding
at approximately 4 : 14 p.m. , as reported by Susan L.
McTaggart, Court Reporter and Notary Public, State of
Florida at Large .
All Keys Reporting
Olde Town Centre 600 Whitehead Street
9701 Overseas Highway Suite 206, 2nd Floor
Marathon Key West
305-289-1201 305-294-2601
All Keys Reporting-Court Reporters-(305)289-1201
Locations in Key Largo,Marathon&Key West
2
P R 0 C E E D I N G S
2 MS . HUTTON: A closed attorney-client session
3 pursuant to Section 286 . 011 , Subsection 8 , Florida
4 Statutes, will now be held. It is estimated the
5 meeting will take approximately thirty minutes . The
6 persons attending the meeting will be the County
7 Commissioners, maybe County Administrator Roman
8 Gastesi, he ' s left the room so I 'm not sure, County
9 Attorney Suzanne Hutton, Chief Assistant County
10 Attorney Bob Shillinger, Assistant County Attorneys
11 Susan Grimsley and Derek Howard, and a certified
12 court reporter .
13 Since the law prohibits any other person from
14 being present at the closed session, the
15 commissioners, County Administrator, attorneys for
16 the County, and the court reporter will now remain
17 in this meeting room, and all other persons are
18 required to leave the room. When the closed session
19 is over, we will reconvene and reopen the public
20 meeting .
21 MAYOR CARRUTHERS : The open session is now
22 closed, and the closed session is now open .
23 MS , HUTTON : For the record, this meeting is
24 being held upon the request of County Attorney
25 Suzanne Hutton, who announced at a prior BOCC
All Keys Reporting—Court Reporters—(305)289-1201
Locations in Key Largo,Marathon&Key West
3
1 meeting held on February 16, 2011, that I needed
2 advice in the matter of Florida Key Deer, National
3 Wildlife Federation, et al . v. FEMA and U . S . Fish
4 and Wildlife Service, U . S . District Court, Southern
5 District Florida, No . 90-10037-CIV-MOORE . At that
6 meeting the board approved holding today' s closed
7 session and public notice was given through public
8 announcement of the meeting at the February 16, 2011
9 BOCC meeting and through publication of the March
10 16, 2011 BOCC meeting agenda on the County' s
11 website .
12 For the record and the benefit of the court
13 reporter, each of us will state our name and
14 position, starting with the Commission .
15 COMMISSIONER WIGINGTON : Kim Wigington,
16 District 1, County Commissioner .
17 COMMISSIONER RICE : David Rice, District 4 ,
18 County Commission .
19 MAYOR CARRUTHERS : Heather Carruthers, County
20 Commission, District 3 .
21 COMMISSIONER NEUGENT : George Neugent, County
22 Commissioner, District 2 .
23 COMMISSIONER MURPHY : Sylvia Murphy, District
24 5, County Commissioner .
25 MS . HUTTON : Suzanne Hutton, County Attorney.
All Keys Reporting—Court Reporters—(305)289-1201
Locations in Key Largo,Marathon&Key West
. I E : Bob Shillinger, Chief
2 Assistant County Attorney.
3 MR. HOWARD: Derek Howard, Assistant County
Attorney.
5 MS . I S Susan G i sley, Assistant County
Attorney.
7 MS . O : For the record, we can only be
discussing settlement e otiations and strategy
related to litigation expenditures . You cannot take
10 decisiveaction at this meeting . We can only
11 provide information and you can provide direction t
12 the attorneys . Any decisions the board makeswould
13 be done in an open meeting.
14 And I 'm going to turn this over to Mr .
15 Shillinger .
16 MR. SHIN : Good afternoon . This i ,
17 tay' s case that we ' re going to talk about, the
18 ability to have a closed session is because we have
19 filed an appeal of Judgeoo ' decision in the Key
20 Deer case, his decision denying our motion to
1 intervene . Now, there ' s a couple of collateral
22 issues that we might e able to touch upon in the
23 context of the issues that we ' re allowed to talk
24 about, which is strategy related to litigation
25 expenditures and settlement negotiations . But we
All Keys Reporting—Court Reporters—(305)289-1201
Locations in Key Largo,Marathon&Key West
5
1 are at the very beginning of the appeal, so if I try
2 and direct the conversation back to the context of
3 the appeal, that ' s the reason why I 'm doing this,
4 because we have to kind of stay within that box in
5 order to have a legal executive session here . So
6 our typical attorney-client session admonitions,
7 anything said here is privileged. The court
8 reporter is taking it down. It only gets disclosed
9 at the end of the case, it can only be compelled to
10 be disclosed at the end of the case, and we would
11 ask that you refrain from voluntarily disclosing
12 outside of these walls what was discussed here, and
13 it can be construed as malfeasance if you do .
14 For the record, the County Administrator has
15 joined us and he is on the notice and is permitted
16 by law to be in here . So just for the record, he ' s
17 here . That would be Roman Gastesi .
18 All right . Again, these are the limits on a
19 closed session, settlement negotiations and strategy
20 discussions related to litigation expenditures .
21 The current posture : Judge Moore denied our
22 motion to intervene in the case between the
23 environmental groups on behalf of the Key Deer and
24 the other critters and the two federal agencies,
25 Fish and Wildlife Service and FEMA, on January llth .
All Keys Reporting—Court Reporters—(305)289-1201
Locations in Key Largo,Marathon&Key West
6
1 Because the federal government is a party, under the
of
2 Federal Rules of Procedure we had sixty days to file
3 an appeal . We did that last week. This is our
4 second trip to the llth Circuit on this type of
5 motion . Judge Moore denied our motion to intervene
6 back in November of 2005 or December of 2005 .
7 When that case went up, and this is the reason
a we think we have at least, you know, some measure of
9 hope for success in taking this appeal, is that the
10 llth Circuit, while they affirmed the denial of our
11 original motion, they did so without prejudice for
12 us to file a new one . They basically invited us to
13 file a new motion to intervene when the RPAs were
14 being considered again . When we attempted to do
15 that we were shut out . So we think that we want to
16 get it back in front of them and perhaps they would
17 give Judge Moore some direction as to you really
18 should consider what they have to say and at least
19 let them sit at the table .
20 In the larger context of the appeal, we have
21 two options that are important to consider, one of
22 which we ' ll ask for direction later at the close of
23 the meeting when we get back into open session . The
24 first one would be a motion to stay the
25 implementation of the biological opinion .
All Keys Reporting—Court Reporters—(305)289-1201
Locations in Key Largo,Marathon&Key West
7
1 Essentially when you take an appeal you have the
on of asking the court to stop the effectiveness
of the order that ' s being implemented. So we ' re
going o ask you, assuming that that ' s a course o
direction you ' d like us to go in, for the
authorization to try and stop the implementation of
7 the biological opinion and the RPAs through a motion
o stay.
9 The second context in which we can talk about
10 today and some of the collateral issues is in the
11 context of appellate mediation . The 11th Circuit
12 has a mandatory appellate mediation program. It ' s
13 mandatory that you show up. It ' s not necessarily
14 mandatory that you settle . But so we have an
15 opportunity and some leverage, at least some points
16 of entry, so we can raise some of our concerns with
7 that .
18 So I think that keeps us within the context of
19 what we can talk about today .
20 More on the motion for stay. What we would
21 required to post is an appellate cost bond, it
22 shouldn ' t be terribly expensive, but just to cover
23 the appellate costs in the event we ' re unsuccessful .
24 Again, if the District Court denies it we can see
the stay at the llth Circuit, as well . So when w
All Keys Reporting V Court Reporters--(305) -11
Locations in Key Largo,Marathon&Key West
8
1 get back to the open session, assuming you all want
2 to go in that direction, we ' ll ask for that
3 authorization .
4 1 already gave you the highlights on appellate
5 mediation . It ' s a forum to raise our concerns with
6 the RPAs .
7 COMMISSIONER NEUGENT : Bob, should we listen to
8 your complete presentation?
9 MR. SHILLINGER: If you ' ve of questions, jump
10 in.
11 COMMISSIONER NEUGENT : Does this have any kind
12 of civil rights, constitutional rights associated
13 with it in going through the appeal process?
14 MR. SHILLINGER: Well, the appeal would be
is limited at this juncture to solely whether or not we
16 should have been allowed to intervene or not, and so
17 if we ' re successful on appeal it would come back and
18 Judge Moore would be forced to at least listen to
19 what we had to say and let us into the case . And he
20 could reach the very same decision he ' s already
21 reached.
22 MAYOR CARRUTHERS : And then we have another
23 decision to make whether to appeal that or whether
24 to file a separate suit?
25 MR. SHILLINGER: Separate suit . Well, we could
All Keys Reporting—Court Reporters—(305)289-1201
Locations in Key Largo,Marathon&Key West
9
1 file a separate suit now, but I can ' t get too far
2 into that in this closed session other than to talk
3 about the general issues that we might want to raise
4 in appellate mediation, because we would be raising
5 the same issues in the suit that we would be
6 bringing forward and pointing out the weaknesses in
7 the federal government ' s overall picture in the
8 mediation .
9 Now, understand, the appeal is limited to
10 whether or not we should have intervened or not .
11 MAYOR CARRUTHERS : Should have been allowed to
12 intervene .
13 MR. SHILLINGER: Should have been allowed to
14 intervene . The issues that could be settled could
15 be global there, but if the federal government wants
16 to stick to the narrow issues of the appeal it ' s
17 going to be a very, very, very short mediation .
18 COMMISSIONER NEUGENT : But it ' s almost, going
19 back to my civil rights that may go into
20 constitutional rights, it almost seems to me like
21 we ' ve been disallowed due process .
22 MR. SHILLINGER: Absolutely. And I think that
23 would be part of the argument that we would raise in
24 the mediation, is say, look, you can either consider
25 these issues now and fix it or we can deal with it
All Keys Reporting—Court Reporters—(305)289-1201
Locations in Key Largo,Marathon&Key West
10
1 in a separate arena or possibly at the end of the
2 day back in front of Judge Moore .
3 COMMISSIONER RICE : Bob, one of the things I
4 wonder about, and maybe I 'm just thinking crazy
5 here, because the fact that we did not intervene
6 means that as we operate today we do not have a
7 court order directed at Monroe County from Judge
8 Moore .
9 MR. SHILLINGER: Right .
10 COMMISSIONER RICE : Do we want to put ourselves
11 in a position where we ' re under his to or not? I
12 guess that ' s my question .
13 MR. SHILLINGER: Well, we ' re under the
14 effective thumb of him by virtue of the conditions
15 that are being imposed on us .
16 COMMISSIONER RICE : I understand that .
17 MR. SHILLINGER: But that was the question that
18 we went back and forth on . Do we move to intervene
19 and be subject to the jurisdiction of the court, or
20 don ' t we? Well, they had the party without us,
21 they' ve come up with the terms of our conditions
22 that we need to live under if we ' re going to
23 continue to enjoy the benefits of the National Flood
24 Insurance Act, assuming we don ' t fight and overturn
25 elsewhere, so we have all of the burdens of being a
All Keys Reporting—Court Reporters—(305)289-1201
Locations in Key Largo, Marathon&Key West
11
1 party but none of the benefits .
2 MAYOR CARRUTHERS : And I think when we were
3 discussing this we thought if we didn ' t intervene,
4 if we didn ' t at least try to get into the party, we
5 would have less standing to, you know, have our own
6 party .
7 R. SHILLINGER: Right .
8 COMMISSIONER RICE : I thought that was the
9 answer, but I just wanted to hear it .
10 COMMISSIONER NEUGENT : And the guy that ' s of
11 the hatchet, whether you want to use the masculine
12 or the female gender here, is FEMA, who is saying
......... 13 you will do this or we ' ll take you out of the
14 National Flood Insurance Program.
15 MR. SHILLINGER: Yes .
16 COMMISSIONER NEUGENT : So we ' ve of to fight
17 this battle some way.
18 MR. SHILLINGER: Well, yeah . And so this is
19 what we ' re trying to do, is outline where we think
20 we can go, where we think we should go . And, again,
21 trying to keep it within the context of what we ' re
22 legally allowed to talk about here and the context
23 of the appeal . The only time we can kind of stray
24 from that issue is when we ' re talking about
25 settlement, and that settlement would come through
All Keys Reporting—Court Reporters—(305)289-1201
Locations in Key Largo, Marathon&Key West
12
1 the appellate mediation. So I think we can have
2 some discussion of the collateral issues, but we
3 can ' t go so far afield that we get into a complete
4 discussion of the collateral lawsuit because that ' s
5 not a pending action, and in order to have an
6 executive session you have to have a pending action .
7 This is our pending action that we have .
8 OR CARRUTHERS : Who is the mediator?
9 MR. SHILLINGER: It would be assigned by the
10 court at a later date . We wouldn ' t have a clue as
11 to who it of be until it gets assigned, though if
12 memory serves me correctly, they use Joe Unger a
13 lot, who was a former -- I can ' t remember his
14 position. But he is a well-respected mediator . I
15 mean, he was either a judge, I think he was a
16 circuit court judge in Dade County. He may have
17 been a federal judge at one point, as well .
18 And again, it ' s possible to raise these
19 additional issues in the mediation, but there ' s no
20 guarantees that the feds will consider them. And,
21 you know, we raise the point, you either consider
22 these now or we face the suit separately.
23 MAYOR CARRUTHERS : Well, what would those be?
24 R. SHILLINGER: Well, here ' s what they would
25 be . We would, essentially our strongest claim would
All Keys Reporting-Court Reporters-(305)289-1201
Locations in Key Largo,Marathon&Key West
13
1 be that the settlement agreement violated, the
2 process of enacting it violated the Administrative
3 Procedures Act in a number of ways . They did
4 rule-making by settlement agreement . They did not
5 go through published comments, notice, opportunity
6 to be heard. They acted in an arbitrary and
7 capricious manner. They failed to consider X, Y, Z,
8 and that of be our ability to implement, our
9 legal ability to implement what they' re asking us to
10 do as well as our financial ability. But it needs
11 to really be that they failed to consider legal
12 impediments and not just we don ' t like it or it
13 would be expensive . It would have to be
14 prohibitively expensive for us to make that case .
15 We could also make the argument under the Endangered
16 Species Act that there ' s been some unlawful
17 delegation of Fish and Wildlife and FEMA' s duties .
18 They ' re basically transferring their duties onto us .
19 We ' re not charged with that duty under the law.
20 They are . There is a Federal Unfunded Mandates
21 Statute . My real brief review of it leads me to
22 conclude it probably doesn ' t work for us, but I ' d
23 want to look at it a little closer . I seem to
24 recall reading there has to be a hundred million
25 dollar per year impact in order to trigger the
All Keys Reporting—Court Reporters—(305)289-1201
Locations in Key Largo,Marathon&Key West
1
1 provisions of the act .
2 MAYOR S : Why haven ' t we used that for
wastewater?
. SHILLING hundred million e year?
5 MAYOR C U : Well, the total cost is nine
hundred and thirty-eight milli n . We ' ve been doing
7 it since ' .
8 MR. SHILLING Well, that ' s a state mandate
versus a federal mandate .
10 MAYOR UTH : But the state mandate comes
11 from Clean Water Act . I mean, it ' s all
12 connected, right?
13 MR. S II G Well, we may end up there .
14 All right . So if the mediation fails or as a
15 companion strategy what we could suggest and we
16 would tell FEMA in the context of a mediation
17 session that we ' re intending to file a separate suit
18 in the U . S . District Court for the District of
19 Columbia . by there and not here? It gets us out
20 of Judge ooe ' s courtroom. Judge oe ' s had this
1 case for twenty years . He ' s twice turned us down in
22 our attempts to get into the case . I think he ' s
23 tired of the case . He doesn ' t want to deal with it
24 anymore . The feds may try to get it backin front
25 of Judge Moore by moving it to the Southern Second.
All Keys Reporting—Court Reporters—(305)289-1201
Locations in Key Largo,Marathon&KeyWest
15
1 COMMISSIONER NEUGENT : Speaking for myself, I
2 understand and I 'm not opposed to the Endangered
3 Species Act, and I don ' t know where it ' s been
4 pointed out that we are the violators of the
5 Endangered Species Act .
6 MR. SHILLINGER: Violators or enforcers?
7 COMMISSIONER NEUGENT : Enforcers are the
8 violators, and it appears to me that the lawsuit was
9 brought against FEMA and U. S . Fish and Wildlife for
10 not abiding by what the rules were within the
11 Endangered Species Act .
12 MR. SHILLINGER: Yes .
13 COMMISSIONER NEUGENT : And it ' s almost like the
14 old pictures of the cartoon where the rumble ' s going
15 on and there ' s a big dust cloud and a hand reaches
16 out and grabs somebody and pulls the into the
17 ongoing rumble . Hell, we didn ' t even get pulled
18 into the rumble . We just of beat up for something
19 that I still am yet to see how we get punished for
20 the lawsuit between FEMA and U . S . Fish and Wildlife
21 from the plaintiffs in the case . Maybe I don ' t need
22 to understand that . But I can ' t see how we get
23 punished for something that they, that the
24 plaintiffs said that the other guys did.
.......... 25 R. SHILLINGER: The other guys weren ' t doing.
All Keys Reporting—Court Reporters—(305)289-1201
Locations in Key Largo, Marathon&Key West
16
1 COMMISSIO EUGENT: Weren ' t doing .
2 MR. SHILLINGER; And they weren ' t doing enough.
3 COMMISSIONER NEUGENT : Well, FEMA was providing
4 subsidized, i . e . federal dollars to provide
5 insurance for more growth and development that was
6 destroying habitat under the Endangered Species Act,
7 which is a violation .
8 MR. SHILLINGER: Right .
9 COMMISSI EUGENT : Where do we get drug
10 into this other than what took place without us?
11 And again, I go back to we ' re being punished without
12 a --
13 MR. SHILLINGER: A point of entry?
14 COMMISSIONER UGENT : Due process .
15 MR. SHILLINGER: Well, and that would be part
16 of our claim that we would raise in a collateral
17 proceeding . We haven ' t been able to raise that in
18 the main case because we ' ve been shut out at
19 intervention time . I mean, what they ' re fighting
20 over is the administration of a federal program that
21 happens to be administered in this area and so we
22 get the collateral fallout of how that program has
23 been redesigned through litigation.
24 S . HUTTON: And I think this relates back to
25 several months ago when Fish and Wildlife came and
All Keys Reporting—Court Reporters—(305)289-1201
Locations in Key Largo, Marathon&Key West
17
1 made a presentation to you as to what new rules
2 we ' re going to have to live under and it was a lot
3 for us to deal with and I remember, I think it was
4 Commissioner Murphy, saying I appreciate your coming
5 here and having the guts to stand up here and
6 deliver the message but it ' s not a good message .
7 And I think you, Commissioner Neugent, said once
8 again her we are being forced to bear the cost of
9 your program.
10 MR. SHILLINGER: Right . So you ' re getting no
11 arguments from us . There ' s no good answer other
12 than, you know, to why we weren ' t allowed in and why
13 we are receiving the burdens but never allowed to
14 participate in the litigation . I mean, that has
15 confounded, and every lawyer that I ' ve talked to
16 about this case in looking for counsel to help us
17 with this case has reached that same observation.
18 COMMISSIONER NEUGENT : And you gave us a list
19 of options to deal with and one of the options was,
20 and I paraphrase, go pound sand. We ' re not going
21 to --
22 MR. SHILLINGER: We ' re not going to take your
23 stinking rules and we ' re going to, and run a risk of
24 getting kicked out of the National Flood Insurance
25 Program.
All Keys Reporting—Court Reporters—(305)289-1201
Locations in Key Largo,Marathon&Key West
18
1 COMMISSIONER NEUGENT : I don ' t disagree with
2 the Endangered Species Act and all that that
3 entails, but you ' re not going to force us to do
4 that . Then the next shoe to drop would be for FEMA
5 to send us a letter and say that we ' re going to pull
6 you out . At that point in time does that put us in
7 a better situation to attack FEMA for of
8 something that ' s unjust?
9 MR. SHILLINGER: I think we would need to try
10 and attack the rules first before we attack their
11 punishing us for not following the rules, if you get
12 what I 'm saying . We don ' t want to waive the
13 argument of the rules don ' t work by just ignoring
14 them.
15 COMMISSIONER NEUGENT : Okay. This is the last
16 time I 'm of to say this, but we were not sued by
17 the plaintiffs .
18 R. SHILLINGER: Yes . Correct . And we may
19 have to sue on our own to get that or we may have
20 to, keep it within the context of our closed
21 session, we may have to raise these issues in the
22 appellate mediation that this is really our main
23 concern .
24 COMMISSIONER NEUGENT : The two guys that got
25 sued then said, well, let ' s screw Monroe County.
All Keys Reporting—Court Reporters—(305)289-1201
Locations in Key Largo,Marathon&Key West
19
1 MAYOR CARRUTHERS : Let Mikey eat it . He ' ll try
2 anything . Right?
3 MR. SHILLINGER: That ' s probably a better
4 analogy than the one I was floating earlier .
5 MAYOR CARRUTHERS : But what you need from us
6 today is a determination about whether or not
7 through this mediation process we are going to
6 request a stay of the enforcement?
9 MR. SHILLINGER: That ' s one thing . And the
10 other thing is going to be how we want to handle the
11 outside counsel issue, and I 'm going to get to that
12 in a minute .
13 MAYOR CARRUTHERS : Do you want us to to them
14 one at a time? I mean, let ' s talk about the stay.
15 MR. SHILLINGER: Sure . And I think that ' s part
16 of Christine ' s presentation in her Growth Management
17 to is the four options . One of the is do we
18 implement, do we not implement, do we fight in
19 litigation, or do we go through a hybrid path where
20 we sue the in litigation and we try to implement?
21 Well --
22 MAYOR CARRUTHERS : Speaking for myself, if
23 we ' re going to litigate and if we ' re appealing you
24 don ' t say, well, only sort of. You ask for the
25 stay. You don ' t implement now, because what we ' re
All Keys Reporting—Court Reporters—(305)289-1201
Locations in Key Largo,Marathon&Key West
2
1 saying is it ' s an unreasonable burden, we can ' t
abide by it, and that ' s why we ' re walking down this
3 path . That ' s my opinion .
COMMISSIONER NEUGENT : I ' in agreement with
5 you.
COMMISSIONER HY: And once we begin to do
7 something --
8 COMMISSIONER IGI t looks like it ' s not
unreasonable if we ' re doing it .
10 MAYOR CARRUTHERS : Exactly. So it looks like
11 acquiescence .
12 COMMISSIONER : If we can do it for two
13 months we can do it for two years, is the way
14 they' re going to look at it .
15 MR. SI I G . Okay, Well, I think we have
16 our direction, but we ' ll ask you to formalize that
17 back when we come back into open session .
18 MAYORCAR RS : And the second thing is
19 outside counsel?
20 MR. SHILLING ER: Right . And, you know, you can
1 do it in-house, and you have Derek and I ande can
22 put aside everything else that we ' re working on and
23 work on this for a while . We would need to get --
24
Derek ' s admitted in the District of Columbia but not
25 in the U. S . District Court for the District of
All Keys Reporting—Court Reporters—(3 ) -121
Locations in Key Largo,Marathon&Key West
21
I Columbia . That ' s just a paperwork thing . For me it
2 would be a little bit more because I 'm admitted in
3 Maryland, then I ' d have to be admitted in federal
4 court in Maryland and then bounce into D. C. But we
5 could do that licensing-wise .
6 Or we could go to outside counsel . And I ' ve
7 talked to seven different firms, five of which have
8 expressed an interest . The two that took a pass on
9 it, one, we floated it by Richard Grosso at the
10 Environmental Law Center . In light of the board' s
11 resolution in January where you basically took a
12 position asking the federal government not to issue
13 new flood insurance in the Endangered Species
14 habitat, that was something that was very
15 interesting to the environmental groups and
16 something they had been pushing for a while, but
17 Richard took a pass on this because he ' s consulted
18 with the plaintiffs in this case and he thought that
19 there were too many conflicts . And while he may be
20 sympathetic, quite frankly the plaintiffs may be
21 sympathetic to our approach here, there was too many
22 conflicts for him to get into that .
23 The other was Mike Burke, who represented us
24 the first time around on the appellate issue . He ' s
25 our general liability counsel for the Florida League
All Keys Reporting—Court Reporters—(305)289-1201
Locations in Key Largo,Marathon&Key West
22
1 of Cities, he has the best rates of anybody in town,
2 but he ' s an insurance defense . He says this is not
3 within our wheelhouse . You ' d probably be better
4 served going someplace else .
5 So, you know, we ' ve looked at our normal and
6 we ' ve looked outside . I ' ve got a little bit of
7 information on each one, and we can approach this in
8 one of two ways . We can either, if you want to, I
9 mean, I ' ve got a clear one in my mind who I think
10 would best serve us, but in fairness to all of them
11 1 of a real quick thumbnail approach from them.
12 They haven ' t given an in-depth presentation . We
13 could bring this issue back in April and if you
14 wanted to hear presentations from any of the
15 interested counsel that wanted to .
16 COMMISSIONER MURPHY : We want to know who
17 you ' re interested in .
18 MR. SHILLINGER: All right . I ' ll get to that .
19 So I 'm doing these in alphabetical order, just
20 so no one thinks that we ' re playing favorites .
21 COMMISSIONER WIGINGTON : Before you start, are
22 you telling us that you prefer not to do this? You
23 prefer outside counsel?
24 MR. SHILLINGER: Yes . I think with what we
25 have going on right now it would be a tremendous
All Keys Reporting—Court Reporters—(305)289-1201
Locations in Key Largo, Marathon&Key West
23
1 hardship for us to try and attempt to do this on our
2 own . This is such a big picture issue that you want
3 to bring in people that have done it before .
4 MAYOR CARRUTHERS : Yeah. I was going to say, I
5 think there are two other, at least two other issues
6 besides your workload. One is that we may be able
7 to take advantage of expertise in this realm and
8 experience in this realm that we don ' t have by using
9 outside counsel .
10 MR. SHILLINGER: Right .
11 MAYOR CARRUTHERS : And the second is we don ' t
12 want our County staff to tick off too much anybody
13 else that we have to deal with over time, so we
14 might want somebody else who can be more of a pit
15 bull than we would want to be ourselves .
16 COMMISSIONER WIGINGTON : Could you rank the in
17 the order of pit bulls, please?
18 MR. SHILLINGER: Connections and competence is,
19 in my mind is --
20 MAYOR CARRUTHERS : The two things .
21 COMMISSIONER NEUGENT : Bob, you made a comment
22 about dollars, and I 'm just going to go back to a
23 previous decision that a previous commission, and I
24 don ' t know, I think Rice might have been on the
25 commission when it was presented and I think it
All Keys Reporting—Court Reporters—(305)289-1201
Locations in Key Largo,Marathon&Key West
24
1 ought to be presented to this commission also, I
2 think we ought to take dollars out of the equation
3 and get the best person that we feel like that is
4 going to represent us than discuss the dollars .
5 That ' s my feelings . And that was the position that
6 a previous commission took also .
7 MR. SHILLINGER: Right . When we went to
8 outside counsel .
9 MAYOR CAR RS : And we have to balance this
10 against what the potential liability is, and we ' re
11 never going to get anywhere near that dollar figure,
12 so I completely agree with you .
13 COMMISSIONER MURPHY: But I think that ' s what
14 he ' s going for anyway .
15 COMMISSIONER NEUGENT : Well, you did in up
16 dollars a while ago, and I think that should be out
17 of the equation.
18 MR. SHILLINGER: Well, but it ' s a consideration
19 of how you get there, so at least --
20 COMMISSIONER RICE : Well, we aren ' t getting
21 there .
22 MR. SHILLING Let ' s get there . Let ' s have
23 the discussion and then see where we go .
24 For the record, all of the interested outside
25 counsel have recommended pursuing the appeal, just
All Keys Reporting—Court Reporters—(305)289-1201
Locations in Key Largo,Marathon&Key West
25
........ so you know, and I didn ' t put that in each of their
2 slides . One, it keeps the option open . They all
3 cite, you know, we ' ve all read the same language
4 from the llth Circuit . We see that as at least an
5 invitation and a point of entry, and the option for
6 appellate mediation . So we ' re all on the same page
7 there . So that ' s not rocket science .
8 Quite frankly, the standard of review in the
9 issue on appeal, it ' s unclear whether we ' re going to
10 be under a de novo review --
11 MAYOR CARRUTHERS : Which means?
12 MR. SHILLINGER: -- or use of discretion .
.................. 13 We get a do-over.
14 MAYOR CARRUTHERS : Okay.
15 MR. SHILLINGER: If the court interprets that
16 we had the right to intervene as opposed to the
17 option, you know, we were, permissively had the
18 ability to intervene, if we had the right to
19 intervene it would be under a de novo standard. if
20 it ' s the second, less powerful one, which is
21 permissive intervention, then it ' s just an abuse of
22 discretion standard, and then we ' re all but sunk
23 because essentially the test is no person in their
24 right in would rule the way that Judge Moore
25 ruled, and that ' s a pretty hard burden to meet .
All Keys Reporting—Court Reporters—(305)289-1201
Locations in Key Largo,Marathon&Key West
26
1 MAYOR CARRUTHERS : I don ' t think so .
2 MR. SHILLINGER: It ' s not impossible .
3 COMMISSIONER RICE : Depends on who you ask.
4 MR. SHILLINGER: But the first time this came
5 up on the appeal they affirmed our, the denial of
6 our motion to intervene, so that indicates to us
7 that they viewed it as permissive . So candidly I
8 think our ultimate chance on appeal is, the value of
9 the appeal is what else it brings, the mediation,
10 the point of entry, the ability to hold a closed
11 session . That necessarily may be the actual --
12 MAYOR CARRUTHERS : And the stay.
............. 13 MR. SHILLINGER: -- outcome of it .
14 And the stay. Absolutely.
15 All right . Getting to the firms, we have the
16 first one, Ackerman Senterfitt . International firm.
17 Michael McMahon is out of Orlando . He litigates,
18 you know, complex land use cases . The other partner
19 that they would bring in is a former general counsel
20 for the Army Corps of Engineers . So some pretty
21 topnotch talent . They were the most hesitant about
22 recommending going forward with litigation, so I 'm
23 not necessarily --
24 MAYOR CARRUTHERS : Move on .
25 R. SHILLINGER: Yeah . And their rate was,
All Keys Reporting—Court Reporters—(305)289-1201
Locations in Key Largo,Marathon&Key West
27
1 this is their government rate, is a little high.
2 Gray Robinson expressed an interest . And very,
3 very capable, competent counsel, very
4 well-credentialed, but all of their experience is in
5 the state level government, not dealing with the
6 federal government, with the exception, you know, in
7 the context of being general counsel for the DEP
8 Mary Smallwood dealt with federal environmental
9 issues . But she ' s not from the federal government .
10 They recommended explicitly that we file a
11 declaratory judgment on the applicability of the
12 judgment to a non-party, Monroe County. Well, that
13 issue is pretty clear . If we wanted to stay in the
14 program and keep receiving the benefits of the
15 National Flood Insurance Program we ' re bound by that
16 decision unless we can knock out that decision
17 another way. Their rates are what they are . We
18 have a current contract with the We could get
19 them up and running right away.
20 Hogan & Lovells . Patrick Raher is the person
21 who brought the team together . He is based out of
22 their Washington, D.C . office . He has a home in Key
23 West . He has extensive experience in agency
24 rule-making and agency litigation . Douglas Wheeler,
25 former Department of Interior assistant secretary in
All Keys Reporting—Court Reporters—(305)289-1201
Locations in Key Largo,Marathon&Key West
29
1 charge of Fish and Wildlife many moons ago but still
2 a very, you know, high-level guy. He ' s the one at
3 the 675 an hour rate, which is his discounted
4 government rate . But the real gem in this group is
5 Adam Siegel . He was with the Department of
6 Justice ' s environmental litigation unit . He was the
7 trial partner of Mark Brown, who is the lawyer for
8 the federal government in the Key Deer case . So he
9 and Mark already have a relationship, have litigated
10 similar cases together . He was not involved in this
11 case, so he has no ethical conflicts about handling
12 it, but someone who knows the other side ' s play book,
13 has been in their trenches . At three fifteen an
14 hour, that is his reduced rate . But that ' s
15 something very worthy of consideration. They were
16 very flexible on at least discussing how they might
17 be able to handle some of the physical aspects . For
18 example, they' re all open to having our input and
19 having Derek and I work on some of the issues to
20 reduce the cost . They went so far as to say we ' ll
21 carve out an office for Derek. He can park himself
22 here in Washington, D. C. in between his home in West
23 Virginia and his school in Maryland. And he happens
24 to be in D . C . a couple of days a week anyway . So
25 that was one aspect . They also talked about
All Keys Reporting—Court Reporters—(305)289-1201
Locations in Key Largo,Mamthon&Key West
29
1 budgeting certain aspects of the case . You know, we
2 can give you a budget, this is how much for the
3 complaint and this is how much we of go to go
4 this far . So we could take it in pieces and see how
5 big a swallow we of have to swallow to go how far
6 we want to go . Like I said, Mr . Siegel was Mark
7 Brown ' s trial partner at the Department of Justice
8 in the environmental unit, and so he has been in the
9 trenches with him and knows how he thinks through
10 his cases .
11 MAYOR CARRUTHERS : If I 'm seeing that they
12 recommend litigation and lobbying and they' re also
13 possible pro bono, it makes me believe that they' re
14 enthusiastic about the potential .
15 MR. SILT GE Absolutely. And Mr . Wheeler,
16 he ' s the higher price person, he came up with some
17 concepts on how we could suggest that the Fish and
18 Wildlife and FEMA reword the biological opinion that
19 would --
20 Can you explain that? I mean, it would
21 basically narrow the impact on it in a way that is
22 more consistent with what he thought the Endangered
23 Species Act should read? Is that --
24 MR. HOWARD: Right .
25 MR. SHIL NGER: Did I get it down to my level
All Keys Reporting—Court Reporters—(305)289-1201
Locations in Key Largo,Marathon&Key West
30
1 enough that I understood it?
2 So they also, they have a Miami office .
3 They' re willing to charge us state rates for their
4 work. So this is the one that was most appealing to
5 staff .
6 Stearns Weaver expressed an interest . You know
7 John Herin, he ' s the Marathon City Attorney .
8 COMMISSIONER MURPHY: And Isla morada .
9 MR. SHILLINGER: He used to be Isla morada when
10 they were first incorporated. Then he went over to
11 Stearns Weaver .
12 Mark Soloff is one of their litigators . I ' ve
13 worked with him on some land use cases . Good, solid
14 litigators .
15 COMMISSIONER WIGINGTON : Is there another
16 choice?
17 MR. SHILLINGER: Tew Cardenas was the other
18 one . They approached us . They ' re very interested
19 in the case . Their headliner would be Mr . Lehtinen,
20 who used to be the U . S . Attorney. Experienced civil
21 and environmental litigator, environmental on behalf
22 of the Miccosukees and some Everglades restoration
23 issues . Santiago Echemendia and then Claude — ,
24 who would really do the heavy lifting, and he ' s at
25 the lower end of the pay scale . I mean, we have an
All Keys Reporting—Court Reporters—(305)289-1201
Locations in Key Largo,Marathon&Key West
31
I interesting issue with respect to the fact that
2 obviously Mr . Lehtinen is married to our
3 representative . There has been at least some
4 concern that she may have to to working on our
5 issues if we hired him in litigation . Now, they ' ve
6 given me assurance, at least Dexter ' s given me
7 assurance that that ' s not an issue . I know the
8 Mayor had a conversation with --
9 Did you have one with both?
10 MAYOR CARRUTHERS : Both of them.
11 MR. SHILLINGER: And what was the response?
12 MAYOR CARRUTHERS : Well, Ileana didn ' t believe
13 that it would be a problem at all, and Dexter
14 didn ' t, either . He felt, he had made an argument
15 that he works on the judicial side and she works on
16 the legislative side . It wouldn ' t be an issue .
17 However, we do know that in the Miccosukee issue
18 when they needed to have federal legislation to
19 determine that there was a reservation within the
20 park that Ileana would not sign on to that because
21 Dexter was involved in the litigation . So, you
22 now, but I have to take the at their or that
23 they don ' t perceive a conflict .
24 MR. SHILLINGER: They don ' t perceive a
25 conflict .
All Keys Reporting—Court Reporters—(305)289-1201
Locations in Key Largo,Marathon&Key West
32
CARRUTHERS : But if they do and others
2 don ' t, it ' s a different issue .
3 MR. SHILLINGER: And it may not be an ethical
4 legal conflict, but it may be a public relations
5 political one that later on she may decide that,
6 better to back off .
7 COMMISSIONER MURPHY : Can you go back to --
8 COMMISSIONER WIGINGTON : The third one?
9 COMMISSIONER MURPHY: There you go . I just was
10 curious . I didn ' t even look at the names when you
11 were doing this before .
12 MR. SHILLTNGER: Hogan and Lover?
......... 13 So what next? Well, after we have the Growth
14 Management discussion item, I think we ' re pretty
15 clear we ' re going to get direction to seek a stay.
16 If we ' re unsuccessful we ' ll go to the 11th Circuit
17 and seek it, and if not then we ' ll come back and
18 decide what to do then .
19 And then how do you want to proceed on the
20 outside counsel issue? Do you want to hear
21 presentations of these interested firms, do you want
22 to --
23 COMMISSIONER WIGINGTON: No .
24 MR. SHILLINGER: -- just go forward and us to
25 bring back a contract with one of the firms in
All Keys Reporting—Court Reporters—(305)289-1201
Locations in Key Largo,Marathon&Key West
33
1 April?
2 COMMISSIONER WIGINGTON : I don ' t see the point
3 in letting someone even have one idea of what we ' re
4 thinking about doing . So we have enough
5 information. I think it ' s a no-brainer for number
6 three . And try to get it pro bono .
7 R. SHILLINGER: And what they said was they
8 might be able to reduce their rates --
9 COMMISSIONER NEUGENT : You get what you pay
10 for. That ' s all I would say.
11 COMMISSIONER MURPHY: You said don ' t worry
12 about money.
13 COMMISSIONER UGENT : Yeah . That ' s why I 'm
14 saying pro bono doesn ' t excite me at all .
15 My question is for Derek. Once again I ' ll go
16 to who I perceive as the smart people . And Derek,
17 who would you agree, I mean, can you rank some of
18 these guys? That one Bob said that might even want
19 to or with you, and I think that would be a great
20 idea that if you ' re in the mix of the discussion of
21 what the hell ' s of on, because we have a
22 relationship with you where we don ' t have a
23 relationship with any of these people that have been
24 suggested.
.............. 25 MR. HOWARD: I was very impressed with Hogan .
All Keys Reporting—Court Reporters—(305)289-1201
Locations in Key Largo,Marathon&Key West
34
............ 1 1 joined Bob in that conversation . I thought that
2 they got the bigger picture, they took a very
3 holistic approach to our issues, they were creative,
4 they thought outside the box, and they did seem very
5 excited by the issues that are presented, and
6 certainly I think that they' re the most credentialed
7 and capable to, you know, charge forward on these
8 issues . I think it ' s very important with the
9 agencies that we ' re dealing with to go with a D. C .
10 firm, and they have the relationships with the
11 agencies that we ' ll be dealing with in this
12 litigation as well as, you know, future litigation .
13 For me it ' s a clear choice . I would go with Hogan .
14 COMMISSIONER NEUGENT : Very good. I like that .
15 MAYOR CARRUTHERS : In the interest of
16 disclosure, I suggested that firm to Bob because
17 Patrick Raher was very helpful to FIRM years ago
18 when we first started getting together because he
19 does have a home here and he ' s a friend of someone
20 who was on our board and he like organized the first
21 satellite conference calls we had with the Florida
22 delegation in D.C . to help start to put pressure on
23 this issue . So I know that they have some
24 connections . And I like the fact that somebody
25 actually owns property here, too .
All Keys Reporting—Court Reporters—(305)289-1201
Locations in Key Largo,Marathon&Key West
35
1 COMMISSIONER G T : I much prefer having an
employee step up and do something, cae I can
vote to fire his ass .
IPlus the fact that he may
enjoy coming down here . He has some investment
the community.
7 MAYOR CARRUTHERS : He won ' t have to pay for a
hotel .
S II EAll right . Well, do you want
10 to give us that directionc in the open session?
11 COMMISSIONER I G 0 : Y .
12 MS . HUTTON : Are you ready to close the close
r
_,.,.;,,,,. 13 session?
14 MAYOR CARRUTHERS : The closed session is
15 closed.
16 (Proceedings concu e a : 14 . )
1
1
19
20
21
22
23
2
. 25
All Keys Reporting--Court Reporters--(305)289-1201
Locations in Key Largo,MarathonKey West
ifs
1 C E R T I F I C A
2 STATE OF FLORIDA �
COUNTY OF MONROE
I, Susan L. McTaggart, Court Reporter and Notary
Public, State of Florida at Large, do hereby certify that
6 was authorized to and did report by stenotype the
7 proceedings in the above-entitled matter, and that the
transcript is a true record of said rccee in s .
Dated this 2th day of March, 2011 .
1
Susan L. McTaggart, Court Reporter
1
13
5
16
17
1
1
2
1
23
22
25
All Keys Reporting-Court Reporters-( 5
Locations in Key Largo,Marathon&KeyWest