Item I2 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
THE cop
MEETING OF
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
ATTORNEY-CLIENT ATTORNEY-CLIENT CLOSED SESSION
R : FLORIDA YS DEER V. CRAIG FUGATE, et al .
OAS . , 7®O V
HELD AT :
THE COMMISSION CHAMBERS
2798 OVERSEAS I Y
MARATHON, FLORIDA 33050
WEDNESDAY, DECEMBER, 1 , 2011
2 : 1P.M . - P .M.
Commissioners Present
MAYOR DAVID RICE
MAYOR PRO TEM KIMIOI O
COMMISSIONER HEATHER CARRUTHERS
COMMISSIONER GEO OE NUGENT
COMMISSIONER Y VIA J. MURPHY
Staff Present
CHIEF ASSISTANT COUNTY ATTORNEY BOB S I LI O
COUNTY ATTORNEY SUZANNE 0
COUNTY ATTORNEY SUSAN GRIMSLEY
SPECIAL LITIGATION SPECIALIST PATRICK RAHER, ESQ.
COUNTY ADMINISTRATOR ROMAN CAST SI
,ALL KEYS REPORTING
Olde TowneCentre 600 Whitehead Street
701 Oversew Highway Suite 207-208 , 2nd Floor
Marathon, l ri Key West, Florida
305-289-12 3 5-294-26 1.
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.......... 1 a AYOR RICE: Public meeting is closed,
2 MS . HUTTON: As soon as Mr. Gabe is out of here .
3 I ' ll start reading. If you ' ll call the closed session to
4 order.
5 MAYOR RICE : Closed session is called to order.
6 MS . HUTTON : For the record, this meeting is being
7 held upon the request of the County Attorney Suzanne
8 Hutton, who announced at a BOCC special meeting ®® well,
9 actually, it was Assistant County Attorney at Cassel,
10 who announced at a BOCC special meeting held on
11 12/8/2011, that we needed advice in the matter of Florida
12 Key Deer versus Craig Fugate, et al ® , Case Number
13 90-10037CIV. At that meeting, the Board approved holding
14 today' s closed session and public notice was given
15 through public announcement at the meeting, at the
16 December 8th, BOCC special meeting and through
17 publication at the December 14th BOCR meeting agenda on
18 the County' s Web site .
19 For the record, and the benefit of the court
20 reporter, each of us will state our name and position
21 starting with the commission.
22 COMMISSIONER CARRUTHERS : Commissioner Heather
23 Carruthers, district three ®
24 COMMISSIONER WIGINGTON: Commissioner Kim Wigington,
25 district one .
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1 MAYOR RICE : Commissioner David Rice, district four.
2 COMMISSIONER NUGENT: Commissioner George Nugent,
3 district two.
4 COMMISSIONER MURPHY: Commissioner Sylvia Murphy,
5 district five ®
6 MS . HUTTON : Suzanne Hutton, county attorney.
7 MR GASTESI : Roman Gastesi, county administrator.
8 MS . GRIMSLEY: Susan Grimsley, assistant county
9 attorney.
10 MR. SHILLINGER: Bob Shillinger, chief assistant
11 county attorney® And let me introduce Patrick Raher,
12 from the law firm of Hogan & Lovells, our outside counsel
13 on this case .
14 S ® HUTTON : Just as a reminder, we will only be
15 discussing negotiations and strategy relating to
16 litigation expenditures . We can not take any deceive
17 action at this meeting. We can only provide information
18 and you can provide direction to the attorneys ® Any
19 decisions the Board makes concerning this case must be
20 done in a meeting open to the public.
21 And I 'm going to turn this over to Mr. Shillinger.
22 MR. SHILL Its GER: Good afternoon. First of all, I
23 handed you two documents . For the record, I handed the
24 commissioners two documents, before, as we were starting .
25 I 've also handed two copies ®® copies of each document to
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......... 1 the court reporter for inclusion in the record.
2 These are background items which you will be able to
3 take with you and refer to later . The one that is a
4 memorandum from Christine Hurley to me doesn ' t have the
5 colored County seal on the top . That is a time line of
6 various actions that have to place, as well as some
7 time lines under the A®- some deadlines, under the
8 biological opinion, things that are going to happen
9 within the next year, along with the time line on the
10 probation and suspension process . So that may help guide
11 you in your consideration today, as well as just as your
12 discussions, when you ' re out and about, or when you ' re in
13 consideration of the issues we have to talk to you about .
14 The other issue is, and I would liken it in, it ' s a
15 species cheat sheet, as to the different jurisdictions .
16 one of the questions that ' s been posed to us is, well,
17 how come if the other municipalities are adopting the
18 FEMA ordinances, well, why isn' t the County willing to
19 play all ®
20 If you look at the chart on the back, which I 've
21 stapled backwards on there, just so you can look at it
22 without folding it ® If you look across these columns,
23 you can see that the City of Key West only has to deal
24 with three of the species . The City of Layton only has
............. 25 to deal with one of them. The City of Marathon, three .
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1 Key Colony each, three . Islamorada has four ® But we
2 have to deal with all nine . And so the data, the chart
3 hasn ' t been laid out exactly the way I was hoping it
4 would be. And we may come up with a revised one .
5 But the point that we were trying to convey, to give
6 you the ammunition to convey, if you have discussions out
7 in public, is that for most of the species, and you can
8 see the ones that Mike has highlighted in yellow, we have
9 the overwhelming majority of the acreage that will be
10 affected by the biological opinion.
11 So it ' s a much bigger deal for the County. Bottom
12 line, this issue is a much bigger deal for the County
13 than it is for our brethren in the cities .
14 So, those are the two documents . You can read them
15 at your leisure . I will leave them with you. I will not
16 take the away, as we 've done in the past®
17 COMMISSIONER CARRUTHERS : So, Bob, can I ask a
18 question?
19 MR. SHILLINGER: Yes .
20 COMMISSIONER CARRUTHERS : Which column do we look at
21 to determine what the potential takings acres are, in
22 terms of our liability?
23 MR, SHILLINGER: You look at the --
24 COMMISSIONER RR 'HERS : Cumulative impact?
25 MR. SHILLINGER: The direct impact . That ' s the one
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1 that is County, that is subject to the NFIP. The
2 cumulative impacts are one ®® includes those additional
3 acres that are in, say, government ownership, or things
like that.
COMMISSIONER RR T RRS m Okay.
R. SHILLI R» And Mike Roberts would be the best
7 staff person to give you the details can all of this ®
O Mike and Christine, but ®® and Mike is the one who put it
9 together.
10 The other category at the end, which in of makes
11 the numbers work, includes, in the footnote, they believe
2 to be some State owned lands . They just they pulled
13 this out of GIS data. And they weren' t assigned parcel
4 numbers . So theyweren ' t able to actually target it to
15 which jurisdiction it fall in. So, that ' s why things
16 don ' t necessarily add up to a hundred percent .
17 All right. We ' re here today to discuss the lawsuit,
18 the appeal that we filed, of the decision to keep us out
19 of the lawsuit between the environmental laintiffs and
20 FEMA, and isWildlife .
1 As you know, we were shut out at the trial court
22 level , We have appealed that decision to the Eleventh
23 Circuit Court of Appeals, in Atlanta . The briefing is
24 completed. We ' re either waiting for the court to
„.. 25 schedule an oral argument or to issue an opinion. So
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I that we ' ve done the bulk of the work on the appeal, at
2 this point .
3 In the context of what we can talk about in a closed
4 session, settlement strategy, things like this . The
5 whole nut can be cured in a couple of different ways and
6 that ' s what we ' re here to talk about today.
I As we know, the Federal Government sent us a letter
8 December 2nd, basically, telling us, you have till
9 January 2nd to adopt our ®® January 12th to enact
10 ordinances to adopt our program, or you' re going to be
11 issued a suspension letter.
12 Part of the way we f..i,nd ourself in the position
13 today is because we ®® we have been trying to negotiate
1.4 the different path of doing this .
15 Mr . Raher can explain how, what we understand the
16 Federal Government decided to change its course and go
17 back to the original setup because FEMA saw the other
18 governments in the communities adopting this . That ' s why
19 we put together the chart so that you can see, it ' s
20 really no skin off their backs, for the to adopt, where
:21 we have much greater issues . And that ' s why we need to
22 continue the fight .
23 So we ' re coming to you with two suggestions . One,
24 in order to deal with the pending suspension letter that
25 we ®® Notice of -- Notice of Probation letter, that we
..............................................................................................
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I fully expect to get, in January, we foresee two options,
2 to deal with that and we actually are going to be
3 recommending a two-track approach.
4 The first option is to finally go ahead and file our
5 own suit in the U. S . District Court, for the District of
6 Columbia, which would challenge it on a number of
7 grounds, which I ' ll have at come up here and explain in
8 a minute .
9 The second option would be to start adoption process
10 of some ordinances that would implement something. Now
11 what that something is, we see that there ' s two
12 possibilities . One, we could call the half measures, a
13 bare minimum approach. The second option would be to
14 adopt ordinances the way we think they should be adopted;
is County staff® Which would put the burden of doing,
16 making the decisions, and making the permit calls, who
17 gets a permit, who doesn' t, on Fish & Wildlife.
18 It ' s kind of like throwing the tennis all and
19 everything else back on to their court® We don ' t think
20 either will be well received. But we think it would,
21 of options, either option would put FEMA in a more
22 difficult position than if we had adopted nothing ®
23 So, that ' s the basic outline of where we want to go
24 today. So let me call at up here and let him give you
25 his view of where we are, and answer some questions you
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........... 1 may have, and we ' ll come back with a recommendation.
2 Pat .
3 MR. RAHER: Thank you, Bob.
4 As Bob indicated, the County is currently in a
5 position where you could actually get the very decision
6 that we are hope ®® that we may have to get in separate
7 litigation.
8 The Eleventh Circuit case, totally briefed.
9 Everything is ready to go. The strategy that you adopted
10 and we implemented, caused the United States Government
11 and the plaintiffs, r® Morgenstern' s clients, not to
12 object to the County' s request to have this case sent
13 back to the judge, and stay the FEMA orders and consent
14 decree until the County has a chance to get its ordinance
15 issues discussed before the judge .
16 Now, I 'm sure Mr. Shillinger will let you know, this
17 judge is not the most understanding judge, when it comes
18 to Monroe County and your situation down here . So if
19 there ' s an opportunity not to be in his courtroom, that
20 would be fine, but we have that set up® And every
21 argument that I will discuss with you, in terms of a
22 separate lawsuit in Washington, D.C. , we are prepared to
23 make in the Eleventh Circuit remand.
24 Unfortunately, as a lawyer, we can not tell you when
25 the Eleventh Circuit will issue a decision. This is not
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1 the Supreme Court that they issue it at the end of the
2 year ® It could be six, nine months . It could be a year
3 from now®
4 As a result, we are looking at the second litigation
5 option. And that option is to bring a separate lawsuit,
6 in the District of Columbia, against FEMA, alleging that
7 they have a consent ecree ® That that consent decree
8 both violates the Endangered Species Act because it is
9 completely redefining the role of local government, land
10 owners, and what animals are covered.
11 And, secondly, that there is a violation of the
12 Federal Administrator Procedures Act because never one
13 was it notified to any government or any citizen in
14 Monroe County, that this would be a requirement, from now
15 on, to utilize property that ' s in private ownership®
16 And, it is not a case without risk® I would just
17 estimate that there is a 60 to 70 percent chance that a
18 judge in Washington, D. C. would transfer the case back
19 down to Florida.
20 The United States Government would argue very
21 strenuously that this case has been heard by a single
22 judge over a large period of time, number of years, very
23 complicated. And why should a judge outside of Florida,
24 in any way, try to get their hands around this kind of a
25 case .
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1 And, of course, if it comes back to Florida, then A,
2 the court system here would say, well, why should we
3 train a new judge on this ® We have a judge already® So
4 you can see the risks that we are taking, but we believe
5 there ' s an opportunity, no matter where this case lands,
6 for a motion for preliminary injunction against FEMA' s
7 action on the County, to be successful .
8 Now that will ®® to increase the chances of success,
9 in that litigation, we would want to attach to our
10 complaint, and motion, two critical sets of documents .
11 The first set of documents would be, Monroe County has
12 issued a regulation that has taken care of any
13 responsibility we have, with respect to the Endangered
14 Species Act and how we relate to FEMA. And that ' s what
15 Bob just described to you® There are two options there®
16 And the second piece of information we would like to
17 attach there, and we ' re not sure we can get it, but --
18 and that is that the FEMA decision on January 12th is
19 having an immediate impact . Insurance companies, banks,
20 property owners are having trouble ® People are asking
21 questions . Should they sell? Should they not sell? I 'm
22 fairly confident we will find that happening, anytime
23 that insurance is not going to be made available .
24 Those two sets of documents will enhance the
25 likelihood of a judge saying, FEMA, wait a minute . We
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1 can not allow you to go into this suspension proceeding
2 with this kind of damage, until we get these issues
3 straightened out .
4 And that is, basically, the structure we are at ®
5 And as Bob indicated, that would can we would need some
6 direction to, yes, prepare the alternative lawsuit,
7 understanding the risks . And number two, consider what
8 in of actions the County would take, in order to
9 support that kind of litigation and put FEMA in a very
10 difficult position.
11 MR. SHILLINGER: So, having laid out where we are,
12 do we have any questions the Board would like to ask us?
13 Any concerns we can address before we move on to asking
14 for your direction to go forward?
15 Yes ,
16 COMMISSIONER NUGENT : Bob, what I heard just
17 described to me, sounds like we ' re looking at defending
18 ourselves against the action that has been taken against
19 this very to protracted, extremely expensive course of
20 action . If that ' s --
21 MR. HI LEI If it plays itself out to the very
22 end, yea ®
23 COMMISSIONER NUGENT: And can you put a ballpark
24 number on that?
25 MR, SHILLINGER: It would be in the several hundred
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1 thousand dollar range .
2 COMMISSIONER NUGENT: That ' s all?
R. SHILLI E Well, I haven' t ®�
4 COMMISSIONER NUGENT: I mean, we 've already spent,
what, 200, 000?
R. SHILLIN ERcWe 've already spent ®® we 've
7 already spent $200, 000, getting to this position. We
would probably be m®
COMMISSIONER E So, we ' re looking at a half
10 million --
11
R. S ILLIN R: At least ®-
12 COMMISSIONER NUGENT : -- at the very, very least?
13 MR. SHILLI R. Yes . And probably, closer u
14 towards a million, if not more .
15 COMMISSIONER NUGENT: Yeah.
16 MR. SHILLI R. I mean, it -- you asked for a
17 ballpark. I 'm thinking on my feet here ,
18 COMMISSIONER NUGENT: Well, I like the ballpark from
19 the high end and if it ' s less --
20 MR. SHILLI Rm My ®®
21 COMMISSIONER NUGENT: Just, worst case scenario ®®
22 MR. SH LLINGERa Worst case scenario, we ' re i
23 for•
--
24 COMMISSIONER NUGENT : A milliondollars?
5 MR. SH LL ER® At least, yes .
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I COMMISSIONER CARRUTHERS : And this has been m® the
2 reason we are where we are today, and we of that letter
3 was because of what the municipalities, essentially, have
4 done to acquiesce to FEMA' s demands?
5 R. RAHER: That is correct, Commissioner
6 Carruthers ® The Commission had instructed us and the
7 County attorney to begin negotiations to resolve this
8 case ® And we carried that out and literally had an MOU
9 that each of you saw, I believe, individually, and we
10 took to the Federal Government . And they were very
11 close . They weren' t going to sign anything that we gave
12 them, verbatim, but very close to begin negotiating those
13 terms with us ®
14 And staff of FEMA said, well, you know, we haven' t
15 heard from these other municipalities . Why don' t we just
16 write their laws for the and see if anybody would accept
17 those . As it turns out, virtually, all of them have
18 accepted them, or modified them very, very slightly. And
19 so the FEMA staff said, wait a minute . by are we
20 negotiating something special from Monroe County? I
21 mean, the rest of these people just adopted regulations .
22 Let ' s just force Monroe County to do it.
23 And as Bob indicated to you on the chart, they don' t
24 really have a lot to lose, negotiating those pieces of
25 legislation, because there ' s not a great deal of expense
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1 or potential liability for a takings case ® They maybe
have an acre someplace, or, you know, few acres ® It ' s
not the vast amounts of property that you -m
COMMISSIONER GE T: What takes place ®®
R. SHILL GER® Or ®® or ®®
COMMISSIONER GE T : ®- in the interim, while we ' re
going through this litigation? So we would have to get
S an injunction against the federal judge to stop things in
dace, until this scenario unfolds?
10 ® : It ' s not an injunction against the
11 judge . It would be an injunction against FEMA saying you
12 can -®
13 COMMISSIONER GE T d Taking action. okay.
14 MR. RAHER; -® can not tape action.
15 MR. SHILLI ER; And leavingthe federal judge ' s
16 injunction in place .
17 COMMISSIONER NUGENT: So what if that doesn' t
18 happen?
19 MR. RAHER; Excuse me .
20 COMMISSIONER NUE T: What ®® what if the injunction
1 does not happen?
2 MR. Rm Well, then the option of passing your
23 own regulation would make ®® would put Monroe County in
24 the position of saying to FEMA, when it tried to enforce,
25 in May, they' ll try to enforce the order that they will.
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issue, or action they will notify you of, in January. We
2 would then say, wait® We have an ordinance ® We said,
for these 1, 300 pieces of property -® this is just an
example . For these 1, 300 pieces of property we will not
5 accept a building application until such time as Fish
Wildlife has told us that you can allow building on this
with the following conditions . We simply aren ' t going to
do it . It ' s ' s issue . It' s Fish & Wildlife ' s issue ®
You ' ve got to go do that ®
10 The Federal Government will go crazy® They' re not
11 even capable of handling things like that . Another
12 option would e to say, we will accept building permit
�............ 13 applications, but we will not deem them complete until
14 you come back to us with a statement from EEMA that says,
15 or Fish Wildlife, that says, you can build with these
16 conditions .
17 Now either one of those options will allow you to
18 say to FEMA, in May, you don' t write our regulations . We
19 are the county commissioners . we are an independent
20 government entity. We have written this regulation this
1 way, We are not Laayton, We are not anybody else that
22 just adopted your ' s ® .So if you want to enforce this
23 against us, you now have to go to court and say that our
4 language isn' t good enough for you®
25 Now that puts them in a very difficult position.
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1 And that would be option two, if we ' re unsuccessful in
2 the litigation.
3 COMMISSIONER NU GENT: Bob, we discussed offering to
4 FEMA, at the last closed session that we had ®®
R. SHILLING ER: October --
6 COMMISSIONER NUGENT : On -- on --
7 MR. SHILLIOGER: -A® September .
a COMMISSIONER NUGENT: ®® eliminating subsidized
9 flood insurance for new construction, on any of these
10 properties . Did that hit the table? Was that ever
11 discussed?
12 MR. SHILLINGER: We discussed that a few iterations
13 ago . And when we have broached that subject with FEMA,
14 basically, make the injunction permanent for those
15 parcels . FEMA has taken the position that they' re
16 enabling act doesn ' t allow them to do that . They have a
17 mandate to issue flood insurance, where, in a
18 community --
19 COMMISSIONER NUGENT : They can take it away from
20 everybody.
21 R. SHILLINGER: They can, yes .
22 COMMISSIONER UGENT: But they can' t focus on that?
23 R. SHILLINGER: That is --
24 COMMISSIONER NUGENT: Explain that to me . And not
25 really.
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I R. SHILLINGER: I feel your frustration because
2 that is the point that we have made in our meetings with
3 them, personally. They read the National Flood Insurance
4 Act as saying, thou shall offer flood insurance in an
5 eligible community, without discrimination, as long as
6 the community meets with all the conditions .
7 R. RARER: And they ®®
R. SHILLINGER: Except for those that have been
9 removed because they have a non-flood compliant property,
10 that type of thing .
11 COMMISSIONER WICI NGTON: And therein lies the
12 problem.
1 R. RAHER: Yes . And therein lies the problem. And
3 M
14 1 must tell you that, although I disagree with that
15 reading, I think it ' s an absurd reading of a federal
16 agency to look at its statute that way. It ' s not
17 absolutely crystal clear .
18 And the County' s legislative counsel in Washington
19 have actually been trying to work with your delegation to
20 get that clarified because it would take -- it would be a
21 very, very easy change to the statute . However, think
22 about what this means . You can ' t get anything through
23 Washington right now.
24 COMMISSIONER GENT: There are a lot of things
j/.............. 25 going on here . And I would hope, Suzanne, that
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1 somebody' s stacking all this up on the scales, as far as
2 what the cost is, probabilities . This would be the
3 approach I would take, if I were hiring them and paying
4 them out of my pocket . How much is this going to cost;
5 better than a scientific, wild-ass guess .
6 R. RAHER: Uh-huh.
7 COMMISSIONER UGENT : And what ' s the possibility of
a us prevailing in this . And I would add this other thing,
9 ladies . Whether it doesn ' t mean anything to you guys,
10 but you' re fixing to go through an election here,
11 shortly. And this is going to make front page news
12 through the whole election time frame .
13 And it doesn ' t matter one bit to you, but I 'm
14 bringing it up for you to be thinking about.
15 COMMISSIONER CARRUTHERS : Well, it ' s not going to
16 make me ®® keep me from doing what I think is the right
17 thing.
18 COMMISSIONER MURPHY: Thank you, Heather.
19 COMMISSIONER NUGENT: I don' t disagree with that --
20 COMMISSIONER MURPHY: I really would not --
21 COMMISSIONER NUGENT : -- but you tell me what the
22 right thing is to do.
23 COMMISSIONER CARRUTHERS : Well, I don' t think the
24 right thing to do is to roll over and say, sure, we ' ll
25 take that $65 million liability.
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1 COMMISSIONER I I TC3 m That ' s exactly what I was
2 going to say. Rolling over belly up and saying, we ' ll
3 take the 60 million over what I think sounds like a good
plan A or a good plan B.
COMMISSIONER So what if you spend a million
plus dollars on this, and we wind up right back where we
7 are today?
COMMISSIONERUL Y: I would rather not have the
coming election thrown into any discussion we have .
10 COMMISSIONER ilk . That ' s fine . I just brought
1 it up®
12 COMMISSIONERII T d And if we go through plan
13 and plan B, it will be coming back right around where we
14 are right now, today. Then we are ®® and we rake a
15 decision based on that ® But I would regret forever, and
16 feel like I had failed as a representative of people who
17 live in this county, if I didn ' t try everything to
18 prevent that .
19 And I think it ' s ®® plan and plan 13 sounds good to
20 me right now. And the election is not going to enter
21 into, I hope, our minds of making a decision of what ' s
2 going to be on the front page of the ®®
23 COMMISSIONER NUGENT: Definitely not going to eater
24 in your mind.
....,.....; 25 COMMISSIONER IGI G O e And we ' ve tape we 've
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1 taken stands and drawn a line in the sand recently,
several tires, that paid off for the citizens that live
3 here because federal and state agencies found out we
weren' t the m®
COMMISSIONER UR HY: Raggedy Ann.
6 COMMISSIONER C RRUT ERS : ®® ones they were dealing
7 with before that would roll over because they wanted to
S be reelected.
COMMISSIONER NUGENTs Let ' s back up a little bit
10 Exclude -® strike what I said.
11 COMMISSIONER UR HY: Thank you .
12 COMMISSIONER UGENT: I still go hack to, you ' re
13 talking about making those decisions and we don' t have, I
, 19 don' t think, all the information as far as what the
15 probabilities of success are here, how much money we ' re
16 going to spend on it . And I just, I personally, am not
17 going to go fight a fight that I know I can' t win from
18 the very beginning.
19 COMMISSIONER WIGI GTE Well, we don' t have to
0 spend. $60 million.
1 MS . HUTTG ® And Idon' t think you ' re going to ®®
22 you ' re not going to get a scientific evaluation of the
23 likelihood® Mr . Raher is very well versed in the law on
24 the Endangered Species Act . He can give you an educated
25 guess, but he ' s not going to be able to give you a
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1 very -- you know, here are all of these criteria and all
2 of these qualifications, and I throw them in the hopper
3 and I come out with a computation. He ' s not going to be
4 able to do that.
5 COMMISSIONER NUGENT: But here ' s the other
6 alternative, is that we avoid the cost of litigation, if
7 we put in place what has been asked and there ' s a finite
8 dollar established with that, based upon our Growth
9 Management director, of about $200, 000 a year.
10 MS . TTON : That ' s m® no. But that ' s only the
11 cost --
12 MAYOR RICE: And it ' s $65 million --
13 MS . HUTTON: That ' s only the cost of the enforcement
14 activity® That is not the cost of the liability for the
15 takings .
16 COMMISSIONER WIGINGTON: That ' s just staff talking.
17 MS . HUT TON: The takings . You now, remember back
is to when we talked about the A.Q. s and the $500 million
19 liability. This is not much different than that ®
20 MR CAST ESI : Can I ask a question --
21 MAYOR RICE: Yes, sir.
22 MR GASTESI : m® to the attorney and anybody that
23 might be answering this question. Is there a way to take
24 on the program, implement the program, without taking on
25 the liability, getting carved out of the liability?
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I COMMISSIONER CARRUTHERS : Well, that ' s what we ' re
trying to do
COMMISSIONER BSI T N ® Yeah
COMMISSIONER C RRUTHERS : -® by saying, we got -®
you }snow, you got to make sure you get that Fish
Wildlife stamp of approval first .
MS . UTT Yes .
COMMISSIONER RRUT Se And that ' s, essentially,
shifting the liability back to them.
10 MS . H TTO ® Put it back on them.
11 MR. SHILLINGER: Right . Right .
12 MS . HUTT N: See ® Right now, it ' s our regulation®
13 They haven ' t got a regulation that maces us do this
14 They' ve gat extortion that makes us do this
15 COMMISSIONER RRUT®HERS s Yeah. Exactly.
16 MR. S ILLI ERa And to ®- if we wanted to go no
17 litigation and jest make sure that FEMA did exactly what
18 FEMA wanted, which would ensure that we wouldn' t get
19 suspended, then we would adopt F ' s proposed regulation
20 and that would lead us, we believe, to incurring, not
1 only the reoccurring coat, but the liability.
22 What our proposal is to stop this suspension and
23 probation process, through litigation, as well as
24 undercut them, by corning up with an alternative to the
25 language that they' re proposing ® Which would, from the
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1 co rt ' s perspective, and quite frankly, probably from the
2 environmentalist ' s perspective, be better to have Fish &
3 Wildlife, the experts, looking at where this development
goes, than a Monroe County employee looking at it ®
e would you know, I can' t speak for the
environmentalist . Idon ' t speak for the
environmentalist, but Ir sure that they would much
S rather have a bureaucrat, paid by the Federal Government,
looking at this and making these permit decisions, than a
10 biologist and a planner paid for by Monroe County,
11 looking at where the development does ® Just because
12 there ' s probably a little more historical trust going on
13 there . nd they are the supposed experts in this field
14 COMMISSIONER CARRUTHE,RS : And, possibly,
15 objectivity, because, you know, we know everybody i
16 Monroe County®
17 MR. SHILLINGER: Right ® You take out the factor
18 that, you know, that ' s cousin Billy Bob' s property.
19 COMMISSIONER C Se Yeah.
20 MAYOR RICE: Bob, question. There is really no
1 possibility, as I understand it, that we could implement
22 these partial procedures, the regulations, as we feel
23 they should be written, unless we can stay all of these
24 actions; right?
........ 25 MR. I LI ERe We could just attempt to do that .
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I Adopt our ordinances and take our chances .
2 MAYOR RICE: Uh-huh.
3 COMMISSIONER WICI NGTON: They have no incentive
4 though.
5 E. SHILLINGER: But at that point, we ' re farther
6 down -- we ' re closer to the suspending of it ® November
7 6th is the suspension date. That ' s the real date. You
8 know, May 6th, May 10th, May 12th, whatever the date is .
9 It ' s in the outline . That ' s the beginning of probation,
10 you know. And leading into probation you get your press
11 releases to encourage people in the media to write about
12 this story. And to torque the citizens to come and bring
13 the pitchforks and torches to our doors .
14 They send letters to all of the policyholders saying
15 you' re going to be hit with a $50 surcharge . And so
16 that ' s meant to encourage, again, the pitchforks and
17 torches to come out and convince the community -® the
18 elected body to do what FEMA wants it to do.
19 Yes .
20 COMMISSIONER WIGINGTON: I think it ' s no coincidence
21 that we got a strongly worded letter® And I think that ' s
22 about as strongly worded as I 've ever read a letter
23 from --
24 MAYOR RICE: Yeah.
25 COMMISSIONER WICI NGTON: -- an agency. That the
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1 drop-dead date is the election day, in which the majority
2 of the commission -- for us . And I think they' re
3 scratching their heads saying, we know the down in
4 Monroe County, they' ll do anything to get reelected.
5 They've never run up against the majority of a
6 commission that would do the right thing, and draw a line
7 in the as for them.
8 And we really ®® we really have no expectation, or
9 could have any expectation, that they' ll accept what
10 we ' re proposing of the making the decision, if we don' t
11 go through with what I 'm calling plan A.
12 MR. SHILLINGER: Well, I don' t think that they were
13 that well organized in calculating. The date is really
14 based on --
15 MAYOR RICE: Court order®
16 MR. SHILLINGER: -- the feds .
17 COMMISSIONER NUGENT : The procedure --
18 MR. SHILLINGER: The feds made, you know, an
19 agreement in their RPA, that said, within 12 months of
20 the court ' s approval, the court picked whatever day the
21 court picked to approve it . So that started the one-year
22 time clock. So that expires on January 12, 2012 .
23 COMMISSIONER WIGIN GTE N : And I think they saw, here,
24 here ' s --
25 MR. SHILLINGER: They may have, but --
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I COMMISSIONER CAR . TI°iERE : Can I ask something?
2 COMMISSIONER N[ICE T: That ' s the other thing, Bob,
that I have a question for you. What happens if we don' t
get an injunction and they remove us from the National
Flood Insurance Program? And then you' re going to have
6 to explain to all the law abiding citizens, why we dial
7 this .
COMMISSIONER ICI GTCWe ' ll know whether we 've
gotten an injunction or not before they can remove us
10 from the ®®
11 MAYOR RICE: That ' s the question ®®
12 MR. HILL GER: Right
13 MAYOR RICE: -® we 've discussed before .
14 MR. SHILLINGER: You will get the injunction. You
15 will know the answer on the injunction.
16 COMMISSIONER NUGE T: I understand that.
7 MR. HILLI G R: And before the suspension date .
IB COMMISSIONER UGENT : So is that the time we blink?
19 MR. HILL2 R: If you don ' t have an injunction in
20 place stopping the suspension® and the legislative
:21 proposal ®®
22 COMMISSIONER NUGENT: So we then can ' t still go do
23 the right thing® then what?
24 COMMISSIONER IGI GTC : Well, but theydon' t have
25 any reason to remove us from the flood insurance program
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1 for this . This is pure extortion. This isn' t flood plain
2 management .
3 MAYOR RICE: Well, let me say something.
4 COMMISSIONER WIGINGTON: I mean, if we follow just
5 some kind of other --
6 MAYOR RICE: Can I point out something. Removing us
7 from the flood insurance program doesn ' t solve their
B problems ®®
COMMISSIONER WIGINGTON: No.
10 MAYOR RICE: ®® with the federal judge.
11 COMMISSIONER MURPHY: It makes it worse .
12 COMMISSIONER WI ON: It should.
13 COMMISSIONER NU GENT: And it doesn ' t it doesn' t
14 make it better for us either because the Endangered
15 Species Act still trumps anything that we have to do and
16 still have to do.
17 MR. SHILLINGER: And we ' re obligated to abide by the
18 Endangered Species Act®
19 COMMISSIONER CARRUTHERS : But we do so much in this
20 county already to abide by the Endangered Species Fact ®
21 MAYOR RICE: They recognize that .
22 COMMISSIONER CARRUTHERS : I wonder if anybody else
23 does .
24 MR. SH ILL INGRR® Let me --
25 COMMISSIONER CARRUTHERS : Can I ask ®® just make one
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1 comment. We need to make sure if ®® if -- tell me i
2 this is even legally possible . In our budgeting classes
3 for dealing with this, that the day after they send that
4 letter saying there ' s a $50 surcharge, we send a letter
that says, this is F ®® this is ghat we are trying to
6 save you from6We ' re trying to saga the taxpayers
7 from ®® I mean, $65 million, by 73, 000 people, how much
6 is that per person? You know, we ' re trying to save you
from having to pay this
10 So that ' s what this $50 surcharge is, just to
11 protect ourselves .
12 MR. HILLI CEHe I don't know if a letter would be
13 the way ®® you know, weld he the most efficient way, but
14 we can find that out in the media .
15 COMMISSIONER C RRUT all, I know, but a lot of
16 people don' t listen ®® trust me, there ' s a ton of people
17 that don' t pay any attention to the media®
113 MR. H LIN EH : I agree .
19 COMMISSIONER C RRUTHE a You know.
20 COMMISSIONER URP Y® What is going to happen when
1 people can not afford, on the market, flood insurance,
22 and already they' re in .financial straits and the banks
23 get stuck with the loan?
24 MAYOR RICE : Could I address that? Based on a
5 telephone call that I got from a banking institution
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1 that ' s very interested in what we ' re doing, and would
2 like to participate somewhat .
3 COMMISSIONER MURPHY e They' re probably ®®
MAYOR RICE: They' re already anticipating that, so.
COMMISSIONER M[ARE Y; They' re scared, aren ' t. they?
COMMISSIONER CARRUTH R ® Sure .
MAYOR RICE: And they' re saying, what ' s going to
happen is, we have customers who are on the ragged edge
now. When their flood insurance cast triples or
10 quadruples, or whatever it does, a great deal of property
11 is going to go into foreclosure . They are then going to
12 go into foreclosure on property which they accumulate and
,,.. 13 can ' t sell because they can ' t get flood insurance for it.
14 So that ' s -- they' re already concerned about that and
15 offered to work with us .
1.6 COMMISSIONER LUCENT ® And rightfully so. However, I
17 would point out, and it ' s written in very ,simple terms,
18 as far as the Endangered Species Act and also the
19 position that the judge has already taken, essentially
20 says, they don' t give a damn about that .
21 MAYOR RICE® I didn' t say anybody did, except the
22 bank. ylvi.a ' s question was, what ' s going to happen.
23 COMMISSIONER NUGENT: And I would say that they
24 don ' t give a damn.
25 COMMISSIONER URPHY: I think the banks are going to
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I bring a great deal of pressure to bear.
2 COMMISSIONER WIGINGTON : And the realtors should
3 because ®®
COMMISSIONER NUGENT: Read the Endangered Species
5 Act .
6 R. RAHER: If I might, let me make two comments .
7 The first one is, you all clearly understand the
8 consequences of this, as it moves along. The farther you
9 go along, without having success in court, in trying to
10 stop this, the greater the chances will become of getting
11 congressional action through your congressional
12 delegation because this is a precedent that has never
13 been implemented anywhere else in the United States .
14 And once it ' s implemented, once FEMA has this here,
15 they can go to Texas . They can go to Louisiana. They
16 can go to California . And those delegations will secure
17 that right away, loud and clear® And they' ll start . And
18 they will hear from the banks, and the realtors, and
19 everyone else .
20 So it ®® it ' s a game of chicken that we would not
21 recommend, but it is ®- it is something that ' s going
22 along .
23 COMMISSIONER WIGINGTON: And what they will hear is
24 that Sylvia Murphy, George Nugent, David Rice, Kim
25 Wigingtort, and Heather Carruthers are the ones that
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I rolled belly up.
2 R. RAHER: If -® if -- yes . If you go ahead --
3 COMMISSIONER WIGINGTON: And put the entire nation
4 in position .
5 COMMISSIONER NUGENT : They will hear that after --
6 they will hear that after we 've been removed from the
7 National Flood Insurance Program. And you will be
8 dealing with other things than it ever getting to who
9 rolled belly up.
10 MR. RAHER: The second issue I would like to bring
11 to your attention is, the Federal Government and FEMA
12 really don' t want to is a big political fight, in an
13 election year of their own. All right .
14 And so, how you craft any regulation that ' s trying
15 to put FEMA in a tough position, which we do recommend
16 you do, is going to be very, very critical . If it is
17 option A, which I call the simple one, which is just send
18 it back to FEMA. We ' re not going to do anything.
19 Everything goes to the Fish & Wildlife . All 13, 000 -- we
20 don' t want to see anything until FEMA tells us about it .
21 And this -- this will be rejected out of hand.
22 COMMISSIONER NUGENT : And let me just say this for
23 clarification. I 'm not on one side or the other of this
24 discussion.
25 COMMISSIONER WIGINGTON: I know.
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I COMMISSIONER NUGENT : The discussion is, let ' s get
2 everything on the table .
3 COMMISSIONER WIGINGTON: Right . Yeah.
4 COMMISSIONE UGENT: And everybody knows --
5 MR. RAHER: Right .
6 COMMISSIONER UGENT : ®® when we make a decision,
7 that okay, we fleshed it out as best we could.
8 MR. RAH ER: The second option which is, we ' re going
9 to accept your applications, but we ' re just going to
10 hold ®® they' re not complete until you take this to FEMA.
11 If we look at the list, and FEMA has told us, oh,
12 this is a piece of property we need to act on first,
............. 13 okay, because they are -- they have given Monroe County
14 and all the other jurisdictions a check list of keys .
15 And if ®® if Monroe County says, well, wait a minute. I
16 got -- Christine, I just looked at this whole list and
17 your piece of property is absolutely fine . They don' t
18 care . They' re saying, go ahead and give that person a
19 building permit, but you got to stick something in the
20 file® Who made that decision; how did you make it; so we
21 can come back and audit you, if the judge or these
22 environmentalists are concerned.
23 But, secondly, if it ' s -- if it doesn' t pass those
24 keys, then you have to go to Fish & Wildlife .
25 Well, that is a fairly minimal cost, according to
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I Christine and the staff because that ' s what they' re doing
2 already anyway. But both of your tier program and so
3 forth.
4 And number two, it makes it very tough for the
5 management of FEMA, when they go brief their political
6 appointees and their general counsel to say, well, you
7 know, Monroe County didn' t exactly -® didn' t enact what
8 we wrote for them, but they did enact something that
9 looks pretty much like that M.O. U. that we were just
10 about ready to sign with them. Do we really want to
11 create, in an election year, this kind of a problem, with
12 this regulation that they adopted, or are in the process
13 of adopting.
14 And that may actually get everybody out of this for
15 a cost much, much less than the litigation.
16 COMMISSIONER WIGINGTON: Is there a possibility that
17 if we rolled over belly up, did what they wanted us to
18 do, that at some point they could find that we didn' t
19 follow what they thought was proper, by issuing building
20 permits and fine us, put us on probation and remove us
21 from?
22 MR. AHER: Yes .
23 MR. SHILL INGER: Yes . Part of their program.
24 R. RARER: That ' s part of their program.
25 COMMISSIONER MURPHY: All right .
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I COMMISSIONER WIGINGTON: So we could ®® we could be
2 right back to square one, even if we rolled over belly
3 up, but no where to go then®
4 R. SHILLINGER: Right . And the other part of their
5 program is, as their lists change over time, they may
6 come up with new species habitat for these, or they may
7 find new species ®
8 COMMISSIONER CARRUTHERS : Yes ® The Key West
9 residence are . And they do a named --
10 R® SHILLINGER: Right. And that we have problems
11 with, constitutionally, having a legislative body open
12 the door for a future changing federal mandate to come
13 down, taking. You know, deciding in 2011 or 2012 and
14 accepting whatever Fish & Wildlife publishes in 2015 or
15 2020 . You can' t do that, legislative.
16 COMMISSIONER UGENT: The Endangered Species Act
17 puts these critters above human beings .
18 COMMISSIONER WIGINGTON : Everything® It ' s supreme.
19 It ' s above all, whether we agree with that or not ® But
20 what did we call that letter we got from them? What was
21 it? What was it?
22 COMMISSIONER UGENT: A letter from who?
23 COMMISSIONER WIGINGTON : FEMA.
24 COMMISSIONER NUGENT : How do you want to describe
25 it?
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COMMISSIONER WIGINGTON: It was it had a
2 nickname . What was it?
3 MR. SHIIaLINGER: That ' s the DCA --
4 MR
GAS TEST : The F- you letter. I call it the F-
you letter .
COMMISSIONER I I . Okay.
7 COMMISSIONER R Y; Yeah.
COMMISSIONER I I T Yeah® Well, our approach
should be F- you squared
to MAYOR RICE: F- you back?
11 COMMISSIONER Yeah.
12 MAYOR RICE: You knew, I ' t think we have ®®
13 COMMISSIONER IGIt GTO choice .
14 MAYOR RICE: ®® a good alternative, is the problem.
15 None of them are pleasant. None of them are guaranteed.
16 My personal feeling is, to roll over and play the game,
17 doesn' t buy us much. I think we ' re going to take a
18 screwing further down the road, if we do that .
19 COMMISSIONER RE' Y® And be sitting here waiting
20 for it ®®
21 COMMISSIONER WIGINGTON: Yeah.
22 COMMISSIONER [1 Ye ®® the whole time .
23 MAYOR RIGS: And I don' t like the risk that ®® I
24 don' t want to be a commissioner, or especially the mayor,
5 t the time that the National Inauranc r c�ra i
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I cancelled in Monroe County. And I don' t think any of us
2 want that . But we don ' t have any guarantees . It just
3 doesn' t matter which way we go. And I think the
4 two-prong approach is -- is probably the best shot we
5 got. Yeah. If we go through the whole shooting match,
6 it could cost a lot of money. If we don ' t go through it,
7 it could cost a lot more money.
8 And I have been assured by Bob ®®
COMMISSIONER MURPHY: Bob?
10 MAYOR RICE: That as we go through this, that we can
11 reverse our course if we need to stop the threat.
12 R. SHILLINGS R: We can always roll over and offer
13 your bellies .
14 MAYOR RICE: Roll over and --
15 COMMISSIONER WIGINGTON: I was only kidding.
16 MAYOR RICE : ®® ask the to tickle our belly.
17 COMMISSIONER WICI NGTON: You ' re of to get more
1B than that .
19 MAYOR RICE: And stop the process .
20 COMMISSIONER CARRUTHERS : is way you roll it
21 over .
22 MAYOR RICE: But I like the fact that you can ®® we
23 can, at some future point, if we are looking at the whole
24 process, we realize it ' s not going our way and the risk
25 is inevitable and unacceptable, we can say, ha, we were
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I just kidding, guys ® And we ' ll do this . of course we ' ll
2 do it . And Bob seems to feel --
3 MR. SHILLINGER: Yes .
4 MAYOR RICE: ¢® that that will allow them to say,
5 well, compliance is what we 've always wanted. They' re
6 saying they will comply. They' re going to work it out
7 where we can comply.
8 R. SHILLINGER: Yes .
9 MAYOR RICE: That ' s the safety valve.
10 COMMISSIONER WIGINGTON: And it ' s ®® it can not be
11 oblivious to a federal judge, or anybody else, that a
12 small community can not bear the cost of a federal
13 Endangered Species Act .
14 MAYOR RICE: The act itself says that doesn ' t
15 matter, but, okay.
16 COMMISSIONER WIGINGTON : Well --
17 MAYOR RICE: Did you write that?
is COMMISSIONER WIGINGTON: ®® maybe the act needs
19 changing .
20 MR. SHI NGER: Did you?
21 R. RAHER: No. No. I didn' t . But, unfortunately,
22 one of the fellows that ' s in my office did.
23 MAYOR RICE: I hope he didn ' t write that part.
24 COMMISSIONER WIGINGTON: Well, and now we ' re seeing
25 the intended consequences of some of it. So maybe the
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I act needs changing. Maybe this would cause that to
2 happen. That ' s all .
3 MAYOR RICE: I really think that this plan is the
4 best way we can go. And it is certainly not the route --
5 MR GASTESI : Can I ask a question about the
6 separation of powers . We discussed it a little bit, over
7 the weekend and stuff. Is that going to play into this
8 at all? Are we even going to mention that?
9 R. SHILLING ER: The separation of powers issue
10 that, you know, how can the Federal Government make a
.1.1 local government enact this legislatively.
12 MR GASTESI : Well, also, how can an agency, an
13 executive branch tell the legislative branch --
14 COMMISSIONER WIGINGTON: Yes .
15 MR GAT I ® ®® what to do?
16 MR. SHILLINGER: Right . Well, and it ' s the
1 1 condition of the grant of federal money, through a
1.8 federal legislative act, the National Flood Insurance
19 Act. And I hesitate to use the really rude and crude
20 analogy that I ' ve used in private sessions .
21 MR GASTESI : Use it. I love that . I love it. 1
22 think we all understand it well .
23 MR. SHILLINGER: I mean --
24 MR GASTESI : This is a good analogy.
25 MR. SHILLINGER: The National Flood Insurance
.... ......
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I policies, I mean, that is our crack. We have become
2 addicted to it . And Uncle Sam is the dealer . And if he
3 wants to continue to ®® if we want to continue to receive
4 that, he wants us to do some unsavory things for him,
5 which is, take on this liability. And it ' s the crack
6 whore analogy.
7 COMMISSIONER CARRUTHERS : That was it, George .
8 COMMISSIONER NUGENT: I don' t have flood insurance .
9 ® SHILLINGER: So, I mean, whenever the Federal
10 Government has a program where they' re issuing money,
11 they typically put strings on that money. And so the
12 case law for the last 50 years or so --
13 MR. RAHER: Uh-huh.
14 MR. SHILLINGER: -- has not found favor on that
15 separation of powers issue, based on -® not on that rude,
16 crude analogy, but on the concepts behind it® That if
17 you are accepting Uncle Sam' s money, then you have to
18 play by Uncle Sam' s rules ®
19 MR GASTESI : Thanks, Bob.
20 MR. SHILLINGER: You just wanted me to to about
21 crack whores in session today.
22 COMMISSIONER WIGINGTON: The court reporter is
23 having fun with that . I ' d sound that out.
24 MAYOR RICE: I feel like we have to discuss this
25 further before we give a head nod.
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1 MR. SHILLINGER: All right. So I think I understand
2 the direction we have . Our recommendation is to go
3 forward in a two-track approach. As soon as they issue
4 the suspension letter and we have a ripe claim, file an
5 action which seeks to stop the probation process . Halt
6 everything in place . It would leave Judge Moore ' s
7 injunction, with respect to the County, in place, but
8 also give Christine the direction to start drafting some
9 ordinances that we can put on a fast track and bring back
10 to you, that we think would implement the spirit of the
11 program, but shield us from liability.
12 COMMISSIONER MURPHY: We would begin to take the
13 applications?
14 MR., SHILLINGER: You would -- we ' re going to figure
15 that part out, based on some proposed law changes that
16 are coming our way, in state law® But it would be one of
17 the two. And we would draft the in a manner that would
18 shift as much of the responsibility for the decision
19 making process . And, therefore, the permitting decision
20 on whether it ' s a yes or a no, onto Fish & wildlife.
21 COMMISSIONER MURPHY: Fish & Wildlife.
22 COMMISSIONER WICI NGTON: And I for one, appreciate
23 the way that this is discussed. Every aspect of it and
24 somebody playing the devil ' s advocate, and bringing it to
25 the table, so. Because I think we ' re all on the same
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1 pace
2 MR GASTESIa But I think are need a media plan to
come out here ®
COMMISSIONER NUGENT : I would predict that we just
5 took m-
COMMISSIONER RPHY® Uh®huh
7 COMMISSIONER UGENT : m- the front page away from
the school board
COMMISSIONER URPHY: Good,
10 MAYOR RIG hat you said, could you say it again
11 MR GASTESI6 Yeah® We need a media plan coming out
12 of here because the media is expecting some kind o
13 report from this session.
„ 14 COMMISSIONER WIGINGT®N: I thought we just seat our
15 media plan, in what we can --
16 MR. SHILLI GERt Well, I mean, that ' s background
17 information to, you know, help you respond to concerns
18 But if you want to funnel all questions to me, I can --
19 COMMISSIONER CARRUTHERS ® I mean, maybe we should
0 just say, you know, we believe that there is a way for us
21 to comply without accepting the liability® And that ' s
2 the gray we ' re going to proceed.
23 MR GASTESI ® We ' re going to approach it that way.
4 hops doing to be on the radio for Friday?
25 COMMISSIONER RRUTHERS : So we ' re we ' re
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I complying with FEMA, but we ' re not accepting the
j
2 liability.
3 MR GASTESI : Whose turn is it, Friday, to be on the
4 radio? Your' s?
5 MS . HUTTON: And keep in mind, this is a closed
6 session.
7 COMMISSIONER MURPHY: Yeah.
8 S . HUTTON: is not a matter of public record yet .
9 So there ' s only so much you' re going to want to disclose .
10 And you' re not going to want to, necessarily, disclose
11 our actual strategy that we talked about .
12 MR. SHILLINGER: Right.
13 MR GASTESI : Right. Well, in terms --
14 COMMISSIONER MURPHY: It is a closed session.
15 COMMISSIONER CARRUTHERS : I think it ' s okay to say,
16 you know, we are interested in complying and maintaining
17, our flood insurance and we are not interested in
IB accepting the liability that ' s imposed upon us by the
19 Federal Government .
20 COMMISSIONER WIGINGTON: Is that okay?
21 MR. SHILLINGER: Yes .
22 S ® HUTTON : Uh-huh.
23 COMMISSIONER WIGINGTON : And use your psychology.
24 Make them look as bad as possible . Okay. Because --
25 COMMISSIONER MURPHY: David, use your psychology and
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I confuse the hell out of them.
2 MAYOR RICE: Well, actually, I have made some
3 comments to the press that are true comments . I mean, it
4 disappoints me, in my country, to be ®®
COMMISSIONER WIGINGTON: Held hostage .
6 MAYOR RICE: -- to see this kind of activity taking
7 place . And I can say that very honestly. And those of
a you who now me, know that I 'm not way over on the right,
9 where I usually talk like that . I just don' t . But I do
10 have an image, that this is not consistent with.
11 MR GASTESI : Right. Well, Bob, you want to put the
12 talking point that we can all --
13 R. SHILLINGER: Yes . You know, just talking
14 points .
15 MR GASTESI : Just stick to the talking points .
16 MAYOR RICE ® I think that you really need to get
17 that, before I go on the radio Friday.
18 MR. SHILLINGER: I will have it to you by Thursday
19 afternoon, I will .
20 COMMISSIONER WIGIN GTE N : Right . But, you know,
21 what ' s been in the newspaper so far, not one single phone
22 call to the office . You?
23 COMMISSIONER CARROJT No.
24 COMMISSIONER WIGINGTE Okay. Well --
25 S . HUTTO We ' re kind of getting off track here.
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I R . SHILLINGER: Okay. We need to wrap this up.
2 MS. HUTTON: All right. Okay® We 've of our
3 direction to proceed both with the litigation and
4 drafting of regulations . So I think that we ' re ready to
5 close the closed session. I don' t think there ' s any need
6 for any actual action.
7 COMMISSIONER CARRUTHERS : I have one question. In
8 the regula ®® the issue with the regulations that we ' re
9 going to prepare, we ' re going with option B, versus
10 option A? Which is, option B is, your application is not
11 complete until you have the sign off.
12 MS . HUTTON: Wait . No. Bob said that they've got
13 to look at some --
14 COMMISSIONER CARRUTHERS : Okay.
15 MS . HUTTON : -- pending litigation.
16 MR. SHILLINGER: There was a bill in the legislature
17 last year, which said you couldn' t hold up a county
18 permit -- a local permit, based on state or federal
19 regulations . So I want to see where that is . And see
20 what the language is, to make sure that we don' t start
21 down a path and then we have our legs cut out from under
22 us by the legislature . Or if it is of that way --
23 COMMISSIONER NUGENT: Is that the State?
24 MS . HUTTON: Yes .
25 MR. SHILLINGER: The State doing that .
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I COMMISSIONER WIGINGTON: So that ' s just to remove
2 liability? That ' s just to remove them from the
3 liability; right?
4 MR. SHILLING ER: I think that was the legislature
5 trying to be the friend to every developer, last year in
6 session.
7 COMMISSIONER WIGINGTON: Well, it also relieves them
8 from liability.
9 MR. HILLINGRR® Well, it may. Yes .
10 MS . HUTTON: Well, what he ' s saying is, before we
11 actually draft, or while we ' re drafting the
12 regulations --
13 R. HILLINGRR® We will have that m®
14 S . HUTTON: -- we will be looking at what is going
15 on at the state legislature to make sure that whatever we
16 present to you is not going to end up being moot because
17 the legislature passed something.
18 R. LLINGER: And if there is something that ' s
19 afloat, we can alert our Tallahassee lobbyist to say, and
20 put our message into that . So maybe we can carve an
21 exception out of FEMA.
22 COMMISSIONER WIGINGTON : Did the Keys lose their
23 flood insurance when they seceded from the union?
24 MR. SHILLINGER: No.
25 MS . HUTTON: I don' t think so .
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I MR, SHILLINGER: The window of secession was what, a
2 day„
COMMISSIONER HER c In the meantime, I think
4 we need to find s solution, a private solution to
5 hurricane insurance, in the Keys, period. Flood
wind.
® I I Yes .
6 MS . Okay. So if the Mayor will class the
9 closed session.
10 MAYORI will close the closed session.
11 MS . HUTTON :
12 MAYOR RICE: And take a short break.
13 MS . HUTTON: Okay.
4 (The attorney-client closed session was conclude at 3 ; 04
15 p.m, )
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............. CERTIFICATE
STATE OF FLORIDA,
COUNTY OF MONROE
I , Patricia A. Zischka, certify that I was
authorized to and did stenographica..I.I.y report the
foregoing proceedings and the transcript is a true
record.
Dated this 3rd day of January 2012 .
IV
Patricia A. Zischka
Al! Keys Reporting—Court Reporters—(305)289-1201
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