From: kay.mann@enron.com
To: savagep@gtlaw.com
Cc: barshk@gtlaw.com, reetzr@gtlaw.com
Date: 2001-08-16 14:30:26+00:00
Subject: RE: Pompano motion to dismiss

Thanks for the very helpful email.  What do you think of our chances of fending off Broward County's intervention?  Seems like a judge would be likely to let them in, with the thought that they can always dismiss them later.  I guess I've never seen a motion to intervene denied, but then again, I've never seen this kind of motion to intervene.

Kay

-----Original Message-----
From: SavageP@gtlaw.com [mailto:SavageP@gtlaw.com]
Sent: Thursday, August 16, 2001 8:53 AM
To: Mann, Kay
Cc: BarshK@gtlaw.com; ReetzR@gtlaw.com
Subject: RE: Pompano motion to dismiss


PRIVILEGED AND CONFIDENTIAL ATTORNEY CLIENT COMMUNICATION

Kay:

Thank you for all the emails, welcome back, and I'm glad you are back.
Anything I say here is subject to Kerri's approval / modification.  In
response to your concerns:

1.	Pompano / Broward Intervention.  I do not believe resisting
intervention by Broward is a waste of time and money.  They have more
resources and better lawyers than the municipalities and have a greater
capability to beat up on us along the way and at the hearing.  The only
benefit I know of allowing them in is there has been some discussion of
raising and litigating the Broward permitting authority question in the DOAH
proceeding.  If you wanted to do that, however, you could do so in the
Deerfield case where Broward is an established party.


2.	Pompano / Appeal of Denial of Motions to Dismiss.  Taking this
appeal could constitute a waste of time and money.  I am an appellate lawyer
by trade and know that the standard for review of the denial of a motion to
dismiss is extremely deferential and nearly impossible to overturn on
appeal.  The only upside of taking the appeal is that it would delay the
Pompano proceeding, which could possibly be beneficial if the Deerfield
proceeding progressed to a successful conclusion in the meantime.  Our
standing arguments in the motions to dismiss are well-researched and
well-preserved so the lion's share of the work for the appellate brief is
done if you decided to do it.


3.	Pompano / Planned Motion to Strike.  Our next move in the DOAH
proceedings was to work with Martha at DEP on a joint motion to strike
certain of the claims in the petitions that were clearly and obviously way
off base.  For instance, there is an allegation about NEPA requirements
which is absolutely irrelevant to DEP air permit issuance.  The goal here is
to seek to narrow the issues for the hearing and for discovery.  This may be
something you want to stop in the interest of cost containment.  It is a way
to get a second bite at dismissing some of the claims and it presents an
opportunity for us and DEP to present a unified front on something, finally.
I will defer to Kerri on what she advises on the motion to strike.      


Let me know if I can provide anything further to help in your supervision of
our DOAH efforts, 


Paul C. Savage
Greenberg Traurig, P.A.
ph. (305) 579-0720
fax (305) 961-5720
savagep@gtlaw.com


-----Original Message-----
From: Mann, Kay [mailto:Kay.Mann@ENRON.com]
Sent: Wednesday, August 15, 2001 5:50 PM
To: savageP@gtlaw.com
Subject: Pompano motion to dismiss


I'm working my way through emails, and see that we lost on our motion to
dismiss.  You mentioned in your email to Steve a discussion regarding
whether to appeal that decision.  Please send me a brief email regarding
that discussion.

Please make sure you copy on any emails to Steve.  

Thanks,

Kay


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