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MILLER (VOL II), GREGORY10/10/2008

Johns Pendleton Court Reporters 800 562-1285

2 (Pages 84 to 87)

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1 REPRESENTING THE PLAINTIFFS:2 BRUNO & BRUNO3 (BY: JOSEPH M. BRUNO, ESQUIRE)4 (BY: FLORIAN BUCHLER, ESQUIRE)5

855 Baronne Street6 New Orleans, Louisiana 701137 504-525-13358 - AND -9 ELWOOD C. STEVENS, JR., APLC

10 (BY: ELWOOD C. STEVENS, JR., ESQUIRE)11 1205 Victor II Boulevard12 Morgan City, Louisiana 7038013 - AND -14 MCKERNAN LAW FIRM15 (BY: ASHLEY E. PHILEN, ESQUIRE)16 8710 Jefferson Highway17 Baton Rouge, Louisiana 70809

18 225-926-123419 - AND -20 ANDRY LAW FIRM21 (BY: KEA SHERMAN, ESQUIRE)22 610 Baronne Street23 New Orleans, Louisiana 7011324 504-586-889925

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1 REPRESENTING THE UNITED STATES OF AMERICA:

2 UNITED STATES DEPARTMENT OF JUSTICE,

3 TORTS BRANCH, CIVIL DIVISION

4 (BY: ROBIN SMITH, ESQUIRE)5 (BY: CONOR KELLS, ESQUIRE)

6 P.O. Box 888

7 Benjamin Franklin Station

8 Washington, D.C. 20044

9 202-616-4289

10

11 REPRESENTING THE U.S. ARMY CORPS OF ENGINEERS.

12 CORPS OF ENGINEERS, OFFICE OF COUNSEL

13 (BY: RITA TROTTER, ESQUIRE)

14 7400 Leake Avenue

15 New Orleans, Louisiana 70118-3651

16 504-862-2843

1718 ALSO PRESENT:

19 ANDRE LAGARDE, ESQ.

20 CHARLES SUTTON, ESQ.

21 DARCY DECKER, ESQ.

22 TIANA CHRISTOPHER, ESQ.

23 R. SCOTT HOGAN, ESQ.

24

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1 PRESENT VIA I-DEP:23 SCOTT GASPARD, ESQ.4 NICK DIETZEN, ESQ.

5 ELISA GILBERT, ESQ.6 BRENDAN O'BRIEN, ESQ.7

8 VIDEOGRAPHER:9 KEN HART

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1 E X A M I N A T I O N I N D E X23 EXAMINATION BY: PAGE

45 MR. BRUNO ................................896 E X H I B I T I N D E X7

8 EXHIBIT NO. PAGE9 Exhibit 45 ...............................172

10 Exhibit 46 ...............................17711 Exhibit 47 ...............................18112 Exhibit 48 ...............................21013 Exhibit 49 ...............................21214

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3 (Pages 88 to 91)

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1 S T I P U L A T I O N2 IT IS STIPULATED AND AGREED by and3 among counsel for the parties hereto that the4 deposition of the aforementioned witness may be

5 taken for all purposes permitted within the6 Federal Rules of Civil Procedure, in accordance7 with law, pursuant to notice;8 That all formalities, save reading9 and signing of the original transcript by the

10 deponent, are hereby specifically waived;11 That all objections, save those as to12 the form of the question and the responsiveness13 of the answer, are reserved until such time as14 this deposition, or any part thereof, is used15 or sought to be used in evidence.16

17

18 * * *192021

22 JOSEPH A. FAIRBANKS, JR., CCR, RPR,23 Certified Court Reporter in and for the State24 of Louisiana, officiated in administering the25 oath to the witness.

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1 GREGORY MILLER2 U.S. Army Corps of Engineers New Orleans3 District offices, 7400 Leake Avenue, New

4 Orleans, Louisiana 70118-3651, a witness named5 in the above stipulation, having been first6 duly sworn, was examined and testified on his7 oath as follows:8 EXAMINATION BY MR. BRUNO:9 Q. Mr. Miller, I know it's been days for

10 you but it seems like months for me, since11 we've been in many, many hours of deposition,12 since we last met. I think where we were was13 we were talking about the requirement of law14 that the Corps of Engineers consult with other15 agencies in connection with certain projects,16 and I think we were at the point where I was

17 asking you what the -- what coordination the18 Corps had done before submission of the project19 to the Congress for approval. And you had20 requested an opportunity to read the letter21 from the Secretary of the Army, which of course22 is the project. And I think -- is that your23 best memory of where we were with this thing?24 A. I don't really recall.25 Q. Okay. Well, do you recall a request

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1 to read the --2 A. Yes.3 Q. You remember that stuff.4 A. I do.

5 Q. And do you remember the purpose for6 which you had asked to read the letter?7 A. I don't remember the exact questions8 that led up to the --9 Q. Okay. All right. Have you read the

10 letter?11 A. I have.12 Q. Okay. Well, can you tell me what13 coordination there was between the United14 States Army Corps of Engineers and any other15 agency which -- including the Secretary of the16 Interior, Louisiana Department of Wildlife and17 Fisheries, in particular, and any other

18 agencies?19 A. The document that you've given me20 shows coordination with parts of -- other parts21 of the government through the, um -- at least22 apparently at the time what was called the23 Bureau of the Budget, through the Executive24 Office of the President. It also shows25 coordination with the Governor of the State of

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1 Louisiana.2 Q. Okay. Does it show coordination with3 the United States Department of the Interior?

4 A. It shows coordination through the5 Executive Office of the President, and the6 President being the Chief of the Executive7 Branch would have secretaries, including the8 Secretary of the Interior.9 Q. Where do you see that, sir?

10 A. On Page 2 of the document.11 Q. Okay. Page 2? What's the --12 A. Comments of the Bureau of the Budget,13 Executive Office of the President.14 Q. All right. And where -- is there a15 particular sentence that you're relying on?16 A. Again, saying that if it came through

17 the Executive Office of the President, then18 you're talking about the President being in19 charge of all the various departments. There20 is no specific reference here to the Secretary21 of the Interior, but it the Executive Office of22 the President.23 Q. Well, is there any reference to the24 United States Fish and Wildlife Service?25 A. No.

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4 (Pages 92 to 95)

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1 Q. All right.2 A. Not in this particular report.3 Q. Okay. Is there any reference to the4 Louisiana Department of Wildlife and Fisheries?

5 A. Um -- not specifically that I have6 read, but there is reference to -- not7 reference, there is provision in the comments8 of the Governor of the State of Louisiana.9 Q. And that would be at Page 3? Is that

10 what you're were --11 A. That's correct. On the bottom, a12 letter from Governor of Louisiana Jimmy Davis,13 in support of the project.14 Q. Okay. Have you encountered any15 documents which would suggest that the16 Louisiana Department of Wildlife and Fisheries17 was opposed to this project?

18 A. There are documents where the19 Department of Wildlife and Fisheries provided20 comments on the various potential routes, but21 not -- by my recollection, not in opposition to22 the project in general, just some of the23 particular routes. In fact, they took it24 further -- it might be better if we went to the25 specific documents, but took it further and

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1 actually recommended a route for the channel.2 Q. Okay. Now, on that point about the3 route, is there a recommended route which is

4 contained in the project documents as submitted5 to the Congress for approval?6 A. Yes.7 Q. And where are you looking, sir?8 A. On Page 4 of the report of the Chief9 of Engineers.

10 Q. Okay. And where are you reading?11 A. That would be in Paragraph 3 of the12 Report of the Chief where he says, I recommend,13 and then it reads and shows the particular14 route recommended in this report.15 Q. All right. And is that the route that16 was actually utilized by the Corps?

17 A. I believe so. In general. It18 doesn't, um -- it doesn't provide any latitude19 and longitude type coordinates, it's more20 general reference to geographic areas.21 Q. Right. Well, in particular it says,22 um -- first of all, it describes the channel23 width and depth and length, right? That24 certainly is what was utilized by the Corps.25 A. That's correct.

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1 Q. Okay. And then it says, um -- it2 curves from a point south of the Intracoastal3 Waterway at Michoud, southeasterly to and along4 the south shore of Lake Borgne and through the

5 marshes to and across Chandeleur Sound to6 Chandeleur Island at or north of Errol Island7 thence increasing gradually to a width of8 600 feet and depth of 38 feet in the Gulf of9 Mexico with protective jetties at the entrance,

10 a permanent retention dike through Chandeleur11 Sound and a wing dike along the islands as12 required, a turning basin at the landward end13 of the seaway canal 36 feet deep, 1,000 feet14 wide, 2,000 feet long in the connecting15 channel, 36 feet deep and 500 feet wide16 extending westerly along the Gulf Intracoastal17 Waterway from the turning basis to the

18 Industrial Canal, including construction of the19 highway bridge with appropriate approaches to20 the Louisiana state highway.21 Does that, in fact, generally describe22 the route that was used by the Corps?23 A. I'd have to say I'm not exactly sure24 where Errol Island is. That's what I'm saying.25 I don't see lat and longitude here, which is

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1 one of the ways we would reference things2 today. Also another reference point would be3 channel miles, and I don't see that. I could

4 go and try to learn where Errol Island is and5 tell you, but in general this does describe the6 route that --7 Q. Okay. That's fine.8 A. -- at this point in time is9 recommended.

10 Q. All right. Now is this the route -- I11 think you told me that the Louisiana Department12 of Wildlife and Fisheries has endorsed -- maybe13 I got it wrong. Did they endorse a particular14 route or reject a particular route? I forgot15 what you told me.16 A. I don't believe I said either one of

17 those.18 Q. You said something about the Louisiana19 Department of Wildlife and Fisheries.20 A. Well, there are documents that -- the21 Department of Wildlife and Fisheries22 recommended that the channel be constructed a23 certain route.24 Q. All right. And is this route the25 route that they recommended?

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5 (Pages 96 to 99)

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1 THE WITNESS:2 Could I get the binders with the3 general design memorandum?4 MR. SMITH:

5 Uh-huh.6 MR. KELLS:7 I think this one has all of them.8 A. I'll make reference to a letter9 from --

10 (Off the record.)11 EXAMINATION BY MR. BRUNO:12 Q. Okay. Are you in 1A? Or are you13 in --14 A. I am in, um -- Design Memorandum15 Number 2, June 1959.16 Q. Got you. Okay. And page, please?17 A. Well --

18 Q. Or just give me a route --19 A. I'm in Appendix 3.20 MR. KELLS:21 You can give him a Bates number,22 too, if you want.23 MR. BRUNO:24 Unfortunately I don't have a25 Bates numbered copy, so -- I

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1 appreciate your effort, but.2 MR. SMITH:3 Just for the record, why don't we

4 give the Bates number.5 A. It's EDP-023-000000783.6 EXAMINATION BY MR. BRUNO:7 Q. That's Appendix 3, right?8 A. Yes.9 Q. Okay. And is it a report or a letter?

10 A. Well, this is a letter contained in11 the design memorandum.12 Q. All right. And we identified it by13 Bates number, but it's a letter from --14 A. The State of Louisiana Wildlife and15 Fisheries Commission --16 Q. Okay.

17 A. -- March, 1959. Um -- Paragraph 318 reads, it's our opinion based on the fish and19 wildlife resources of the overall area, and20 without the benefit of biological studies or21 general engineering date that Route D would be22 the best alignment of the three alignments23 suggested.24 If you refer in the design memorandum25 there's a map that's referred to as Plate 2.

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1 Q. Is it still in the appendix,2 Mr. Miller?3 A. No, it's in the report.4 Q. Okay. I'm with you.

5 A. It's about Page 39 in the report.6 Q. Plate 2. Yes, sir, I'm with you.7 A. Okay. That depicts routes that are8 lettered, references this Route D. In general,9 Route D follows the description of the Chief of

10 Engineers report, with the one caveat that I'm11 not sure of the location of Errol Island.12 Q. Okay. I'm trying to follow you there,13 because if you'll notice, and tell me if I'm14 reading this incorrectly, but if we go near15 Lake Borgne, I see two routes that seem to be16 roughly parallel to one another.17 A. That's right.

18 Q. Okay. Do you know which one -- there19 is one that's closer to Lake Borgne and one20 that's further away, for lack of a better21 descriptor. Do you know which is which? And22 it seems to me that the one that's closer to23 Lake Borgne is a broken line and the one that's24 further away from Lake Borgne is a solid line.25 A. I cannot really tell from just the

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1 map, the black and whites. I could spend some2 time reading -- I'm sure it's probably better3 described in the text part, but the general

4 point is that the Wildlife and Fisheries5 Commission recommended a certain route that is6 generally in the same location as the route7 recommended in the report of the Chief of8 Engineers.9 Q. Okay. All right. Well, you'll

10 recall, though, that my question was about11 coordination before the project was submitted12 to Congress. This is 1959, so clearly this is13 a post-authorization engagement between the14 Wildlife and Fisheries and the Chief. Right?15 A. That's right.16 Q. Okay. All right. So have you

17 encountered any documents that predated the18 submission to the Congress that would have19 described conversations or correspondence20 between the Louisiana Wildlife and Fisheries21 Commission and the Corps?22 A. I believe, and this is just from23 memory, um -- that there was participation at24 one of the public hearings. But I'd have to go25 back and check that for sure, if it was

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6 (Pages 100 to 103)

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1 representative of the state in general or if it2 was specifically the Wildlife and Fisheries3 Commission.4 Q. If you go down in Appendix 3 just a

5 few pages -- maybe this will help, maybe it6 won't -- it's entitled Report to the United7 States Army Engineer District New Orleans on8 the Possible Biological Effects of Various9 Proposed Routes of the Mississippi River Gulf

10 Outlet by Gordon Gunther.11 A. What page number?12 Q. It's in Appendix 3.13 MR. SMITH:14 Just a couple pages after the one15 you were referencing before.16 EXAMINATION BY MR. BRUNO:17 Q. In fact, I would say that it --

18 MR. SMITH:19 Why don't you just read for the20 court reporter the Bates number there.21 THE WITNESS:22 It's EDP-023-000000785.23 EXAMINATION BY MR. BRUNO:24 Q. All right. So you found it?25 A. Yes.

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1 Q. Okay. It doesn't have a date2 unfortunately. Do you have any sense of its3 date --

4 A. I do not.5 Q. -- through reviewing the document?6 They talk about letters dated 30 July '58.7 A. Just on a quick glance it looks like8 it says January 8th, 1959 on Page 9.9 Q. You're on Page 9. Okay. Okay.

10 That's at end of the letter, all right. So11 this is a post-authorization document, as well.12 And there's a comment here about the Louisiana13 Fish and Wildlife Commission proposal. And it14 says here that, in the middle, this proposal15 has the disadvantage --16 A. Do you have a page number for me?

17 Q. Page 8. I'm sorry. You see where it18 says the Louisiana Wildlife and Fisheries19 Commission proposal?20 A. Yes.21 Q. This proposal has the disadvantage22 that it traverses water in an area of soupy,23 uncompacted sediments and will be very hard to24 hold without virtually complete retaining dikes25 along both sides.

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1 Do you know what they're referencing2 there?3 A. This is in reference to an earlier4 recommended route from the Department of

5 Wildlife and Fisheries that would have gone6 through the -- at least portions of the open7 waters of Lake Borgne.8 Q. Okay. And that's why the discussion9 of the difficulty of keeping the channel open

10 because of the high probability of silting,11 right?12 A. I assume that was the opinion of13 Gordon Gunter, yes.14 Q. Okay. Do you know who Gordon Gunther15 was?16 A. I sure don't.17 Q. Okay. Go to Page 6. Mr. Gunther

18 reports again on one general criticism of the19 channel should be discussed and it's been20 stated by some officials of the Louisiana21 Wildlife and Fisheries Commission that the deep22 channel will permit and enhance the23 encroachment of high salinity water into low24 salinity areas where it will cause considerable25 damage such as killing out the freshwater

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1 marsh, the oysters, et cetera. However, no one2 else seems to be greatly disturbed by the3 possibility, and neither am I, because the

4 chances seem rather remote.5 Do you know if the Corps considered6 the potential effect of high salinity in the7 selection of this route?8 MR. SMITH:9 Which route, Joe?

10 MR. BRUNO:11 Oh, this route is the route --12 according to this document seems to be13 the route that's the subject of the --14 the same one as the, um -- was15 selected. It says here --16 EXAMINATION BY MR. BRUNO:

17 Q. At Page 5 it talks about the area18 involved. And in the beginning it says, the19 proposed canal starts at a point where it20 connects with the Inner Harbor Navigation21 Canal. It says it runs due east five miles22 from this point on to where the channel will23 connect with waters of the open gulf. Several24 alternate routes have been considered and25 proposed by various groups of interest along

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7 (Pages 104 to 107)

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1 the Mississippi and Louisiana coast, as well as2 one state government and one branch of the3 federal government.4 So clearly they're describing all

5 those routes that you pointed us to in that6 Plate Number 2. Right?7 A. Well, it looks like the report is8 submitted to the Corps from Gordon Gunther and9 he goes through a number of different, um --

10 proposals, I guess, from the State of11 Mississippi, the one from the Department of12 Wildlife and fisheries from Louisiana, and he13 makes various comments about --14 Q. Right.15 A. -- either one.16 Q. Well, let's see if we can do it this17 way: It seems like, and I want to make sure

18 I've got this correct, but the plate that you19 referred to, Plate Number 2, talks about20 routes, but insofar as the route from the21 Industrial Canal to about Bayou La Loutre,22 there isn't a great deal of difference between23 those two routes. Is that accurate?24 A. I would agree with that.25 Q. Okay. And then when you start seeing

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1 the real big difference is when you go from2 Bayou La Loutre to the gulf. And that's where3 you see Route E, D, project document location

4 and Route B. Right?5 A. Yeah. In general, you know, they're6 different routes, and one goes northeast, one7 goes southeast and some go south southeast.8 Q. Right. But I'm trying to see if I can9 just kind of coordinate this with the document.

10 In the letter to the Congress, the11 chief describes a particular route that's very12 similar to what's described on Plate 2 without13 being, as you pointed out, terribly particular14 in terms of lat and longitude. Right?15 A. Right.16 Q. Okay. And then if you go to Paragraph

17 Number 17 of the report of the Board of18 Engineers in the same letter -- in the actual19 letter to the Congress -- you see Paragraph 17?20 A. I do.21 Q. Okay. It says, the board is of the22 opinion that the exact location of the outlet23 to the gulf and the alignment of the seaway24 should be determined after more complete25 studies of sand movement, wave action, local

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1 currents are made in cooperation with the beach2 erosion board. Hence, if the improvement is3 authorized, ample provision should be made for4 modification of the location and alignment of

5 the canal should further studies show that a6 more suitable location is available. So am I7 correct in gathering that the chief describes a8 route that's generally described in Table 2 of9 the general design memorandum? I'm sorry.

10 Plate 2, not Table 2. And that the board is11 saying, he needs discretion to finalize with12 precision the financial location.13 Is that a reasonable conclusion to14 draw from these documents?15 A. Well, in general, with the one caveat16 that I'm not sure of the precise location of17 Errol Island, that is what this document says,

18 and it is what the report of the Board of19 Engineers for Rivers and Harbors also said.20 Q. Precisely.21 A. It should be noted, though, that this22 is a report from the chief from 195123 referencing the need for potentially more24 studies, and that's exactly what happened25 through the process of the design memorandum.

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1 Q. And that frankly was going to be my2 next question. And that would explain, would3 it not, why after the authorization you have

4 this dialogue about the precise location of5 certain portions of the channel, because the6 authorization gave the chief that discretion to7 more precisely locate the channel within the8 framework of what you see on Plate 2. Right?9 A. Do we have the wording of the

10 authorization of the channel?11 Q. Yes. It's in evidence. It's --12 MR. SMITH:13 Oh. You mean the law itself?14 THE WITNESS:15 The law that authorized.16 EXAMINATION BY MR. BRUNO:

17 The actual law says --18 MR. SMITH:19 Generally in accordance with.20 MR. BRUNO:21 We will stipulate that it says22 generally in accordance with.23 A. Yes.24 EXAMINATION BY MR. BRUNO:25 Q. So that's a reasonable conclusion.

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8 (Pages 108 to 111)

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1 A. He would generally have that2 discretion, yes.3 Q. So the dialogue that we're talking4 about between the Louisiana department of

5 fisheries and to whatever extent there was with6 the Department of Interior, that occurred7 after -- at least what you're aware of occurred8 after the authorization. So can I conclude9 that we really do not know what if any

10 interaction there was before the project was11 submitted to Congress with regard to12 consultation and/or communication between the13 Department of the Interior, the Department of14 Wildlife and Fisheries -- the Louisiana15 Department of Wildlife and Fisheries and the16 like? We just don't know.17 A. I don't agree with that.

18 Q. Okay. Your last answer was you don't19 agree, and I thought you were going to tell me20 what the basis of your disagreement was.21 A. You asked me a question, I said no I22 don't agree with that.23 Q. And what is the basis for the24 disagreement?25 A. The document in one of the binders

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1 that I've reviewed is Mississippi River Gulf2 Outlet 30 September 1946, Serial 18, has a3 number at the bottom of the Page

4 AIN-112-000000575.5 Q. Okay. I'm with you.6 A. Review of Report of the Mississippi7 River Gulf Outlet and the Mobile to New Orleans8 Intracoastal Waterway. They make preference to9 Page 38, Paragraph 80, coordination with other

10 agencies.11 Q. Okay.12 A. It says, the Director of the Louisiana13 Department of Public Works, designee for the14 Governor for Louisiana, has full concurrence15 with the findings presented to the President of16 the New Orleans Tidewater Development

17 Association, also concurs but favors18 construction priority for the outlet channel19 and preference to the lock and access channel.20 And the Chief of Engineers of the Board of21 Commissioners for the Port of New Orleans22 advises that plan is substantially that23 proposed by that agency.24 Q. Okay. And so what is this document25 that you're reading from? So what is this

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1 document?2 A. Well, this is a report --3 Q. Okay.4 A. -- from 1956. And your line of

5 questions references whether there was6 coordination prior to the authorization or7 prior to the Chief of Engineers report.8 Q. Yeah. I know. I'm wanting to9 understand what is the genesis of this

10 document? Mine says not for public release, on11 the first page. So it's just --12 A. From a read of the document, it13 appears that it was produced by the Offices of14 the Division of Engineers of the Lower15 Mississippi Valley Division, Vicksburg,16 Mississippi.17 Q. Okay.

18 A. Meaning the Corps of Engineers.19 (Off the record.)20 EXAMINATION BY MR. BRUNO:21 Q. All right. So this is a report22 generated by the Mississippi Valley engineers23 office, I guess?24 A. Yeah. That is how I read it.25 Q. Okay. Now, if you look at Figure 1 in

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1 that same document, which unfortunately, it's a2 Bates Number 649 -- you see there's a variety3 of outlets proposed. There is an E1, E2, 3,

4 E4, E5 and E7 -- E6?5 A. Uh-huh. (Nods affirmatively.)6 Q. Do you know which of those routes is7 endorsed by the folks that you just -- the8 paragraph that you just referenced?9 A. I'm not sure I'm following you.

10 You're talking about Paragraph 80?11 Q. Yes. You say, in Paragraph 80, you12 say that they agree, and I mean unless I'm13 missing something here this report has a14 proposal about at least seven different routes.15 So I'm just trying to figure out if what's16 being endorsed by the Department of Public

17 Works is the idea that there be a channel and18 that those routes are acceptable, or are they19 approving a particular route?20 A. I apologize, I just want to get this21 right.22 Q. No. That's okay.23 A. It looks like to me from Paragraph 8024 that we're talking about the State of25 Louisiana, at least through the Governor 's

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9 (Pages 112 to 115)

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1 designee, the Department of Public Works,2 concurring with the recommendation of the3 President of the Tidewater Development4 Association, also notes prior reference to --

5 excuse me, also, the Board of Commissioners for6 the Port of New Orleans which earlier in the7 report there's reference to the desired8 improvements, talks about the public hearing9 that was held in 1943, and the Board of

10 Commissioners of the Port of New Orleans11 proposing a deep draft outlet channel from the12 Industrial Canal to the gulf east of the13 Chandeleur Islands.14 Q. Okay. That's fine. Just for15 completeness, my copy of those document which16 is Bates numbered has all these lines through a17 variety of pages. Do you know if this is an

18 actual final version of this document?19 A. I do not know that.20 Q. Okay. All right. Now, does the21 project as described in the letter from the22 Secretary of the Army, which is House Document23 245, does it describe whether or not included24 in the project is foreshore protection or some25 kind of protection for the shores of the

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1 channel?2 A. It does make reference to protective3 jetties and a permanent retention dike.

4 Q. That's at the gulf, though, isn't it?5 A. Um -- well, not at the gulf, in6 Chandeleur Sound.7 Q. Okay. So does that mean that the8 Congress was authorized to put -- the Congress9 authorized the Corps to include in the design

10 protection of the banks, including jetties,11 rock dikes and the like, as you've just12 described to us?13 A. Well, the authorization from Congress,14 um -- in 1956 reads substantially in accordance15 with the recommendation of the Chief of16 Engineers --

17 Q. Right.18 A. -- in this report.19 Q. So you would agree with me that the20 chief had the authority to install rock21 protection on the shores, including jetties I22 think is what you said, if he felt it was23 necessary, right?24 A. I think in general he had the25 authority to build the project in accordance

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1 with this report, which included provisions for2 some jetty work. I can't tell you at the time3 whether there were reports, you know, design4 reports or funding appropriated and things like5

that for it.6 Q. Okay. Well, maybe if we look at7 Design Memorandum Number 1A it will help us8 answer that question. In particular, at9 Page -- once again, Page 7. I'm looking at

10 Design Memorandum Number 1A, channel mile 63.7711 to mile 68.85.12 Are you with me?13 A. Yes.14 Q. And do you see there where it says15 channel protection, Paragraph 16? Okay? Are16 you there?17 A. Yes.

18 Q. Okay. You see where it says no19 channel protection is recommended initially;20 however, erosion due to wave wash in open areas21 can be expected in the upper part of the22 channel slope where the peat and highly organic23 clays are exposed. It says, protection for24 this area can be provided if and when the need25 for it becomes necessary.

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1 So doesn't that support the view that2 the chief had the authority to install slope3 protection or channel protection if he felt it

4 was warranted?5 MR. SMITH:6 Joe, you've already covered this7 with a previous witness. You asked8 this very question of a previous9 witness. This is a 30(b)(6) of the

10 Corps of Engineers.11 MR. BRUNO:12 No, I didn't. Not only that, you13 told me that I was limited to the14 reconnaisance report and this is all I15 could talk about. Obviously, we're16 not talking about the reconnaissance

17 report and I don't have any18 recollection of any other witness that19 I asked the question to, and it really20 doesn't matter.21 MR. SMITH:22 It does matter, Joe.23 MR. BRUNO:24 No. This subject includes this25 issue.

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10 (Pages 116 to 119)

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1 MR. SMITH:2 You can't ask the same question3 of multiple witnesses in a 30(b)(6)4 deposition.

5 MR. BRUNO:6 I don't believe that I'm asking7 the same question. And I'm certainly8 not going to take your word for it.9 Your memory can't be any better than

10 mine. We've been sitting through11 countless hours of depositions. I12 don't remember ever asking this13 question, and I am specifically14 talking about the subject that this15 person is designated for.16 MR. SMITH:17 No, he's not designated to tell

18 you whether the chief was authorized19 to install shoreline protection along20 the MRGO, and that's what you just21 asked him.22 In fact, you've covered this23 multiple times. The testimony you've24 received is that as long as it served25 the purpose of the project they were

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1 allowed the put the channel.2 MR. BRUNO:3 Are you instructing him not to

4 answer?5 MR. SMITH:6 No, I'm not. I'm telling you7 you've already gotten testimony on8 that.9 MR. BRUNO:

10 Let's just go through it. You11 know what? It would take three12 seconds to get an answer. I have to13 go through all this foolishness with14 you every time. I could be well15 beyond.16 MR. SMITH:

17 It's not -- look was gone into in18 great detail already.19 MR. BRUNO:20 Then make your objection so we21 can move on. Okay? Just note it.22 MR. SMITH:23 Objection. Asked and answered.24 MR. BRUNO:25 Father enough.

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1 MR. SMITH:2 This witness is not prepared to3 talk about whether or not Chief of4 Engineers was authorized or the Corps

5 was able to install shoreline6 protection wherever it felt like as a7 result of Paragraph 16 in DM8 Number 1A. He can give you his9 opinion, but the Corps is not going to

10 be bound by whatever he says.11 MR. BRUNO:12 Paragraphs 7, Paragraphs 11, all13 speak to this issue.14 MR. SMITH:15 He can give you his opinion. It16 will be just his opinion.17 MR. BRUNO:

18 That's your objection. I'd like19 an answer.20 EXAMINATION BY MR. BRUNO:21 Q. Do you remember the question,22 Mr. Miller?23 A. Vaguely.24 Q. Okay. Then --25 MR. SMITH:

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1 Objection. Vague.2 EXAMINATION BY MR. BRUNO:3 Q. The general design memorandum says,

4 protection for this area can be provided if and5 when the need for it becomes necessary.6 Doesn't that imply the chief had the7 authority, if he thought it appropriate, to8 include channel protection within the authority9 given him by Congress?

10 A. I'm not -- I don't know that I agree11 with that. I don't think that's what this12 report says. I think what it means is from an13 engineering perspective that you could build14 protection if it became necessary in this area.15 It's a design memorandum. It's not the Chief16 of Engineers.

17 Q. That's fine. So what it says, though,18 does it not, is that the chief is recognizing19 that there's the potential need for channel20 protection, right?21 MR. SMITH:22 Objection. Assumes facts not in23 evidence. Calls for speculation.24 EXAMINATION BY MR. BRUNO:25 Q. Isn't that true?

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1 A. Your question is about the chief, and2 this is a report from the district engineer. I3 don't see in the report that it was signed by4 the chief.

5 Q. Isn't the general design memorandum6 not a general design memorandum until it's7 approved by the U.S. Army Corps of Engineers in8 some fashion pursuant to its policy, its rules9 and its regulations?

10 MR. SMITH:11 Objection. Vague.12 EXAMINATION BY MR. BRUNO:13 Q. You can answer.14 A. Oh. This is a report of the Army15 Corps of Engineers.16 Q. Exactly. Can I accept it as a report17 of the Army Corps of Engineers?

18 A. Yes. But your question was about, you19 know, the beliefs of the chiefs or the ability20 of the chiefs.21 Q. Well, when I'm referring to the chief,22 I'm talking about the United States Army Corps23 of Engineers, right? He's the guy. He's where24 the buck stops. He's the person who represents25 the Corps, isn't that true?

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1 A. Yes.2 Q. Okay. All right. So the fact of the3 matter is, this general design memorandum is

4 the statement by the United States Army Corps5 of Engineers about how miles 63.77 to mile6 68.85 should be built, right? Isn't that true?7 A. Yes.8 Q. All right. And this document9 recognizes that the channel can erode its

10 banks. That is a potential of the channel.11 Isn't that a fact as indicated by this12 document?13 A. I think it would be better just to14 read exactly what it says. It says, erosion15 due to wave wash in open areas can be expected16 in the upper part of the channel slope.

17 Q. Okay. What does that mean?18 MR. SMITH:19 Objection. Calls for20 speculation.21 A. I think it means exactly what it says.22 Erosion due to wave wash in open areas can be23 expected in the upper part of the channel24 slope.25 MR. SMITH:

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1 Joe, if you tell him which word2 you don't understand maybe he could3 help you.4 MR. BRUNO:

5 That's what I was about to do.6 Thank you very much.7 (Off the record.)8 EXAMINATION BY MR. BRUNO:9 Q. M. Miller, Paragraph 9 of the notice

10 of deposition says, evaluations by the Corps11 regarding erosion of the banks of the MRGO from12 wave wash of vessels traversing the MRGO. And13 you're the designee. Okay? So that's why I'm14 asking you. You're the man. It says, erosion15 due to wave wash.16 What's wave wash?17 MR. SMITH:

18 Sorry. Is this an evaluation?19 MR. BRUNO:20 Yeah.21 MR. SMITH:22 This is before the thing was ever23 built. How could it be an evaluation?24 MR. BRUNO:25 Well, you went to go through an

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1 explanation of the meaning of the word2 evaluation now? We'll do that, too.3 We'll be here until January.

4 MR. SMITH:5 I withdraw my objection.6 EXAMINATION BY MR. BRUNO:7 Q. What's wave wash?8 A. In my words, the wash of waves, um --9 on the shoreline.

10 Q. What's erosion?11 A. Erosion is, um -- retreat of a12 shoreline or, um -- the conversion of some13 shore body or, um -- in this particular case14 it's probably, um -- clays, in this case,15 according to this.16 Q. All right. Does it mean that the wave

17 wash removes a piece of land from the shore so18 that you have less shore than you had before19 this erosion thing?20 A. You're talking about the general21 definition of erosion or what we mean in this22 particular --23 Q. What you mean right here. Right here24 in this sentence.25 A. It means the upper part of the channel

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1 slope can erode, it can, um -- if there was an2 area of dirt --3 Q. It moves that area of dirt.4 A. Yes.

5 Q. So the surface width of the channel6 gets wider, right? That's what it says, right?7 A. I think it would be better just to8 stick to what it says exactly.9 Q. We are sticking to what it says

10 exactly. I'm trying to understand --11 A. No, you said it gets wider. It12 doesn't say that in here.13 Q. Well, does erosion due to wave wash14 cause the channel to become wider? That's the15 question.16 A. It could be that the erosion actually17 occurs underwater and that you're actually

18 eroding parts of the bottom of the channel or19 the side slope of the channel and it actually20 does not widen the top part of the channel.21 Q. Okay. Then help me understand what is22 meant when they say can be expected in the23 upper part of the channel slope, then.24 A. Well, I was hoping that we had it25 shown on a drawing so we could just point to

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1 it.2 Q. I'm sorry. Hoping what was shown on3 the drawings?

4 A. I was hoping that we had shown the,5 um -- labeled the slope on this drawing so it6 would be easier for everyone to just look at.7 Q. Let's make it easy for us. What's8 channel slope?9 A. It's the, um -- the angle from the

10 bottom of the channel to the top.11 Q. Okay. And we remember that the12 authorized bottom depth of the channel was13 500 feet, right? I'm sorry. Bottom width of14 the channel was 500 feet, right?15 A. Yes.16 Q. 36-foot depth. And there's a channel

17 slope described of 2 on 1, I think?18 A. I don't believe the authorization has19 the, um -- the slope angle defined.20 Q. Okay. I think you may find it in the21 design memorandum. Page 4.22 A. I'm sorry. I apologize for being23 literal, but you said the authorization. It24 doesn't reference --25 Q. Well, the general design memorandum

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1 comes from the authorization, doesn't it?2 A. Yes. The work is done based on the3 authority we have.4 Q. That's fine. Okay. That's all right.

5 So the chief had the authority to design the6 channel slope, and he selected a channel side7 slope of 1 on 2. Isn't that true?8 A. I don't know.9 Q. Page 4.

10 A. Yes. Page 4. Channel slope.11 Q. 1 on 2.12 A. I apologize.13 Q. No problem. So now we know what the14 channel slope is. It's the side of the15 channel. And we know it's angle, it's a 1 on16 2. We know its depth.17 Now, the next question is, what's the

18 upper part of that slope versus the lower part19 of that slope? Can you give me any guess as to20 what that might refer to?21 MR. SMITH:22 Objection. Calls for23 speculation.24 MR. BRUNO:25 I'm sure it does on the part of

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1 the Corps. Maybe we should bring in2 somebody who's more able to answer the3 question.

4 EXAMINATION BY MR. BRUNO:5 Q. Do you know what upper versus lower6 means?7 A. Take a look at this drawing.8 Q. Show me.9 A. This is the slope right here.

10 Q. Okay. Fair enough. Just tell me11 where you are and I'll follow it.12 A. Listen, there's no reason for you to13 insult me. Okay? Ask me a question, I'll try14 to answer it the best I can.15 Q. I have to tell you something. I'm the16 one that feels insulted. I'm asking you what

17 upper means is, and you tell me you don't know18 what upper is.19 A. I didn't say I didn't know what upper20 was.21 Q. Then tell me what upper means.22 A. I'm pointing to --23 MR. SMITH:24 Why are you harassing him, Joe?25 MR. BRUNO:

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1 You know why I'm asking the2 question.3 EXAMINATION BY MR. BRUNO:4 Q. What does upper mean, Mr. Miller? I

5 not trying to insult you, I'm trying to ask a6 simple question.7 A. Upper is above or on top.8 Q. Fine. Look, we only have about four9 thousand pieces of paper that say that the MRGO

10 erodes its channel bank and it makes it wider.11 Why do we have to play this game?12 That's exactly what's in this piece of paper in13 1957. That's all I'm trying to confirm. It's14 no big deal.15 MR. SMITH:16 Then why do you keep asking the17 same question over and over again?

18 MR. BRUNO:19 Because I can't get an answer.20 MR. SMITH:21 You don't need this witness to22 tell you that. You've got that in the23 record already. You just said that.24 MR. BRUNO:25 If I don't need it, why is it so

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1 difficult? If you've got such a lock2 of this case, if you're going to win3 this case, if you're going to win it

4 on discretionary function, if you're5 going to win it on -- why is it so6 difficult to answer such a simple7 question? What is erosion? What does8 it mean? Does erosion make the9 channel width get wider? Can't get an

10 answer to that. I mean, come on. We11 all know where we're going.12 MR. SMITH:13 You already have testimony to14 that effect in this.15 MR. BRUNO:16 Then why is it so difficult to

17 get the answer?18 MR. SMITH:19 Why do you have to keep going20 over the same question?21 MR. BRUNO:22 Because I can't get an answer to23 a simple question.24 MR. SMITH:25 Joe, I'll bet you've got that

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1 very answer in this transcript --2 MR. BRUNO:3 I want it from this witness.4 MR. SMITH:

5 -- from prior witnesses. You're6 not entitled to it from every witness7 we put up.8 MR. BRUNO:9 I never said I was.

10 MR. SMITH:11 Then stop asking the same12 question.13 MR. BRUNO:14 You designated this witness for15 this subject. I'm tied by your16 designation. Remember yesterday --17 MR. SMITH:

18 You've already asked the19 question, Joe, and you got an answer.20 MR. BRUNO:21 You wouldn't let me ask a single22 question beyond the reconnaissance.23 You said, Joe, this guy is designated24 for reconnaissance and nothing else, I25 am going to instruct the witness not

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1 to answer. You recall you did that2 four of five times.3 MR. SMITH:

4 Let's take a break.5 MR. BRUNO:6 That's a good idea.7 (Brief recess.)8 EXAMINATION BY MR. BRUNO:9 Q. Mr. Miller, I really had no intention

10 of insulting you. That's not what I'm here11 for.12 A. Got you.13 Q. Let's try it -- it's clear, is it not,14 that Paragraph 16 of the design memo reflects15 that the Corps did an evaluation as to whether16 or not -- I'm sorry. The Corps did an

17 evaluation about wave wash and its relationship18 to erosion of the banks of the MRGO. Let's19 just be real general. Right? That's what this20 is describing.21 A. Yes. It's an evaluation of the22 engineering needs for this section of the23 channel.24 Q. For channel slope protection. All25 right. And I want to -- they're concluding

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1 that you can expect some erosion from wave wash2 in the upper part of the channel slope where3 there's peat and highly organic clays which are4 exposed, to be precise.

5 A. That's what they're saying. That's6 what it says.7 Q. Okay. Now, and they're saying8 protection can be provided, if needed. Right?9 And the need is based upon whether or not

10 there's erosion going on. Is that a fair11 conclusion?12 A. It says, protection for this area can13 be provided if and when the need for it becomes14 necessary.15 Q. Right. What I'm trying to understand16 is, help me understand the need. In other17 words, when does erosion reach the point that

18 protection is necessary? And I basically took19 that same sentence and inverted it in asking20 that question. So just when is it necessary?21 A. Well, I'm reading the paragraph and22 putting it in context. It says, um -- it is23 presumed that sufficient rights-of-way will be24 furnished by local interests to preclude use of25 channel protection or that additional

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1 rights-of-way will be furnished when the need2 arises.3 It's going further to say, the reach

4 covered by this report lies in the proposed new5 harbor development area and the construction of6 slips, wharves, piers and other structures will7 probably provide for some channel protection8 that may be required.9 Q. Right. And I read that to mean that

10 they're accepting the fact that you're going to11 erode away the right-of-way but there will be a12 problem when you reach the point where you are13 new eroding away land that you don't own. Did14 I get that wrong?15 A. Well, I'm not sure that's what they're16 saying. I think they're saying, you know, when

17 the need arises. It doesn't make a18 determination that the need is there now.19 Q. No, I know that. But what's curious20 to me is it says, when the need arises, it21 says, that additional rights-of-way will be22 furnished. So I'm thinking to myself, okay,23 you've got a right-of-way, meaning you can24 build the channel, and you have this right to25 build the channel, and you own -- the

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1 right-of-way extends to the shoreline. Now,2 when that shoreline gets washed away and you're3 going to the line of your right-of-way, or4 perhaps over the line of your right-of-way,

5 then they're saying that's when you may need6 this channel protection.7 Is that a fair conclusion?8 A. Well, I would just again just read9 what the report says. Um -- protection can be

10 provided if and when the need for it becomes11 necessary. No channel protection is included12 in the overall cost of the project. It's13 presumed that sufficient rights-of-way will be14 furnished by local interests to preclude use of15 channel protection.16 Q. All right. Well, would need include a17 concern for health and safety of the human

18 environment; would that be an appropriate way19 to define need?20 A. I don't know. And I especially don't21 know in the context of what they're saying here22 in the design memorandum. I think this is more23 of an engineering, um -- give me a second.24 I'll read the purpose statement.25 Q. Sure.

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1 A. Presentation of pertinent information2 and data.3 Q. Sorry. Where are you, sir?

4 A. I'm sorry. I'm in Paragraph 4,5 Page 2, just the purpose of this particular6 document. So I don't know that other than in7 an engineering -- assessment of the engineering8 data that they were looking at other --9 especially the -- you said the human --

10 Q. -- health and safety of the human11 environment is the particular phrase that I12 used in my question.13 A. I don't know.14 Q. Okay. Well, certainly the Corps, if15 it was apprised that the erosion of the banks16 may implicate the health and safety of the

17 human environment, the Corps would recognize18 that as an appropriate basis for a need for19 shore protection. That's a fair conclusion,20 right? That's the way the Corps operates.21 A. Yes.22 Q. Okay. All right. And just to kind of23 follow through, there is -- you know, you were24 right, this design memo only regards about five25 miles. Okay? Remember?

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1 A. No.2 Q. 63.77 to 68.85. 1A. Remember the3 front page?4 A. Yes. Yes.

5 Q. Now, in fairness to you, let's just6 take a quick peek at the design memo for the7 remainder of the -- the next section of the8 channel, which is 1B. If you don't have it,9 I've got it right here.

10 A. I have it.11 Q. Okay. And this is Mile 39.1 to Mile12 63.77, right?13 A. Yes. Point 0.14 Q. I'm sorry. Did I say it wrong? Mile15 31.01 to Mile 63.77. And just for the Court,16 the lower mile is closer to the gulf and the17 larger mile is closer to the IHNC. Right?

18 A. It is today, and I just want to verify19 that that was the case then.20 Q. That's fair.21 A. Yes. That's correct.22 Q. All right. Now, and I just want to23 point out that at Page 5 of this document we24 see -- and I'm sorry. The question would be,25 would you agree that the same paragraph appears

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1 regarding the need for channel protection? And2 it's at Paragraph 19.3 A. I just want to back up for a second.

4 We were talking -- you asked me a question5 about a document. I thought the document we6 were talking about before we took a break was7 Design Memorandum 1A.8 Q. It was.9 A. Okay. Okay. Just to make sure.

10 Q. And now we're switching. In fairness11 to you, we're switching to a new document. Now12 we're talking about 1B, which is a different13 section of the channel.14 A. Just from a quick read, it doesn't15 have all of the sentences in it. The last16 sentence in, um --

17 Q. All right. Let me just catch up to18 you.19 A. The last sentence in Paragraph 16 of20 Design Memorandum 1A is not included in21 Paragraph 19 of Design Memorandum Number 1B.22 Q. Okay. Right. Well, okay. I hadn't23 read that and didn't question you on it, but24 you're absolutely correct. I'm trying to avoid25 asking the same questions again. That's why

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1 I'm doing this.2 A. Okay.3 Q. But Paragraph 16 of Design Memo 1-A4 and Paragraph 19 of 1B are identical with the

5 exception that the sentence the reach covered6 by this report lies in the proposed new harbor7 development area and the construction of slips,8 wharves, piers and other structures will9 probably provide for some channel protection

10 that may be required. That's the difference.11 A. Yes.12 Q. And that's because in Reach 1 -- and I13 don't know if you and I have -- do you know14 what Reach 1 refers to? In these many, many15 depositions -- I don't even know if we invented16 it or it came from you guys, but we are17 referring to Reach 1 as that section between

18 the IHNC where it coexists with the inner19 harbor waterway. Okay? And then where it20 veers off and goes south, we refer to that part21 as Reach 2.22 A. Okay.23 Q. Are you familiar with those -- the use24 of those phrases?25 A. I've seen it designated a number of

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1 ways, but I know where you're talking about2 right now.3 Q. All right. So Reach 1 is 1A and Reach

4 2 is 1B, correct?5 A. Is your Reach 2 below Bayou La Loutre6 or is it just to Bayou La Loutre?7 Q. Well, you're correct, 1B includes only8 a portion of Reach 2.9 A. Okay.

10 Q. So we're talking about the same thing.11 A. Right. Okay.12 Q. And so what I was driving at is, the13 proposed new harbor development that they're14 talking about here is in Reach 1.15 A. Okay. Yes.16 Q. And that's why the sentence obviously

17 doesn't appear in the 1B design memo, because18 there's no harbor development there.19 Okay. Do you agree?20 A. I just wanted to be careful. I think21 there is a portion of this reach that does have22 harbor development planned in it. So I'm not23 sure you're 100 percent accurate there. It's24 the portion in the vicinity of the Michoud,25 um -- canal.

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1 Q. The Michoud canal is not in Reach 2,2 though, is it? That's the point.3 A. Well, I thought that --4 Q. Reach 1 is --

5 A. The design memorandum 1A went up to6 the highway.7 Q. No, I said it was coexistent with the8 Inner Harbor -- I'm sorry. Gulf Intracoastal9 Waterway. But that's okay, it's not a terribly

10 important issue. Let's move on.11 If you look at Page 8 of the design12 memo, they have a section use of other13 agencies. Do you know why that's there? And14 I'm asking you the question because you're15 designated to talk about the coordination16 between other agencies, okay? So that's why17 I'm asking it.

18 Why do you care what these other19 people have to say about your design memo for20 1B?21 A. Well, it's part of project22 coordination. You know, you may have one23 activity that affects another. The highway is24 a good example of that here.25 Q. Okay. Well, if you look at Paragraph

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1 Number 35, the U.S. Department of Interior,2 Wildlife -- the U.S. Department of Interior,3 Fish and Wildlife Service in particular, on

4 Page 9, it says, the report which outlines the5 existing conditions concluded that sufficient6 data are not available upon which to predict7 the effects of the project and recommends8 extensive environmental and model studies be9 made covering a period of several years and

10 costing upwards of five hundred thousand11 dollars exclusive of the model. Subsequent12 conferences and discussions have demonstrated13 that the model study is impractical and it has14 been eliminated. Tentative agreement has been15 reached on a plan for submission of interim16 fish and wildlife reports covering sections of

17 the channel, such reports to contain18 recommendations for remedial measures for19 protection of fish and wildlife values. The20 amount of $64,400 is tentatively made available21 to the service in fiscal year 1959 for the22 studies on a reimbursable basis.23 Okay. First of all, I'm a little24 confused as to who's giving the money and who's25 getting the money, the 64 grand.

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1 A. The Corps of Engineers is providing2 funds for the fish and wildlife service to,3 um -- conduct studies of the project area.4 Q. Okay. All right. And do you know

5 what it is about the channel that the Fish and6 Wildlife Service believes may negatively impact7 fish and wildlife resources?8 A. I thought -- there's really not a lot9 of specifics here, but it does say probable

10 effects the channel will have on fish and11 wildlife values of the area traversed.12 Q. Where are you, sir?13 A. I'm sorry. Paragraph 35, Page 8.14 Q. Yeah. I meant probable effects. I15 just was trying to figure out what are those16 probable effects, if you know?17 A. Well, they're -- you know, they're

18 recommendations that are here, let's see, 119 through 9. They relate to the placement's of20 spoil, the discharge of water, the exclusion21 of, um -- spoil from Bayou Villere. I guess22 it's a concern. They said, if future studies23 reveal that fish and wildlife habitat north24 east of the channel alignment is deteriorating,25 the dike could be constructed. Um -- we

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1 also --2 Q. Where --3 A. -- you know, measured retention dikes

4 in order to minimize the dispersal of spoil5 material. So those measures are designed to6 address the concerns that they have. I would7 imagine that there is -- excuse me, I don't8 imagine. There is a letter that would have9 detailed those -- or a report that would have

10 detailed those concerns in specific.11 Q. All right. Can I conclude from this12 that the Corps had the authority to build dikes13 if it was necessary to protect fish and14 wildlife resources, based upon what I'm reading15 here in Paragraph 35?16 MR. SMITH:

17 Objection. Calls for18 speculation.19 A. This Paragraph 35 lists the things20 that the Fish and Wildlife Service is asking21 for. It has a concluding paragraph that says,22 um -- these -- paraphrasing, these23 recommendations, except for Number 7 which is24 the one the references construction of a dike,25 um -- are generally incorporated in the plans

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1 and specifications of the initial contract for2 excavation of this reach. It states that that3 recommendation, Number 7, which is for the4 construction of a dike, be considered further

5 when it becomes apparent that work on the6 northeast side of the right-of-way is necessary7 to prevent losses.8 EXAMINATION BY MR. BRUNO:9 Q. Exactly. So that's why I asked the

10 question. So I'm trying to figure out, if the11 Corps determines that the channel is causing12 damage to fish and wildlife as is suggested may13 be -- may be a possibility, in Number 7, does14 the Corps have the authority to build that15 dike? It sounds like they do.16 A. Based on my read, yes, I would think17 we would.

18 Q. Okay. And just 33, just to round it19 out, that's the State of Louisiana Wildlife and20 Fisheries Commission, and they're talking --21 this is -- we've talked about this with other22 witnesses before, I do remember this, that the23 wildlife and fisheries really didn't want to24 have the channel go through Lake Borgne. Do I25 take the last sentence really to be the Corps'

Page 145

1 response, experience indicates that channels2 should be sited through land cuts or provided3 with effective barriers in shallow, exposed

4 coastal lakes and sounds. The route adopted5 makes maximum use of land cuts and traverses a6 minimum length of shallow sound crossing of the7 routes considered. Would you agree that's the8 Corps' response to the Louisiana Wildlife and9 Fisheries' concern?

10 A. Yes.11 Q. Okay. And the Corps is recognizing --12 A. Well, I'm sorry. That is the Corps'13 response to the Wildlife and Fisheries14 Commission recommendation of a route, um --15 through open water of Lake Borgne, not16 necessarily all of --

17 Q. No, no. I know. That's exactly what18 I'd said. I said, we've had testimony in other19 depositions that we don't want to go through20 again that the Wildlife and Fisheries21 Commission for the state of Louisiana opposed a22 land route and wanted to go through the lake.23 That's where they wanted to put the channel.24 And I just wanted to confirm that the last25 sentence is the Corps' response to that

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1 proposition, and I think we agree that it is.2 A. To that, yes.3 Q. All right. And the Corps is saying4 that channels should be sited through land cuts

5 or they have to be provided with effective6 barriers in shallow exposed coastal lakes or7 sounds. Right? That's the Corps' position.8 A. Yes.9 Q. All right. And then finally, just to

10 confirm, at Page 11, the full project width is11 500 feet. That is, and that refers to the12 bottom. I just want to get that confirmation.13 A. Yes.14 Q. Okay. All right. And again, just for15 completeness, now we look at Design Memorandum16 1C, which is Mile 0 to Mile 36.43, which is17 Bayou La Loutre. And I just want to confirm at

18 Page 7 we have the same paragraph about channel19 protection at Paragraph 17.20 A. Not the same paragraph. It is a21 paragraph on channel protection, um -- it is22 similar but not the same.23 Q. What's the difference?24 A. Um --25 Q. I wasn't comparing it to reach 1, now.

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1 We've already got that done. The second --2 A. Well, there's specific reference to3 marsh that's not in the earlier one, and to,

4 um -- passing ships.5 Q. Oh, I see. Instead of saying the6 upper slope, they're saying along -- they're7 saying along the upper portion of the route in8 the marsh area can be expected where peat --9 there's a little bit of change in the sentence

10 there.11 A. Yes.12 Q. Do you know why -- can you explain why13 there would be a difference in that, that14 little slight difference in language there?15 A. I don't know the specifics, no. I16 don't know why.

17 Q. Okay. That's fine. That's fine. All18 right. If we move to Design Memo Number 2,19 just for context, do you know what Design Memo20 2 does that 1 and 1A, 1B and 1C don't?21 A. This Design Memorandum 2, um -- is the22 determination -- or review of the engineering23 information and determination of the route,24 um -- from Bayou La Loutre to the Gulf of25 Mexico.

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1 Q. Okay. So this is what confirms the2 final decision as the route, right? That's the3 only real difference?4 A. Well, that segment of the route, yes.

5 Q. Okay. Because at Page 9 -- and in6 fact Page 9 will tell us exactly what the7 departure from the project plan are.8 A. Yes. Paragraph 18 under the heading9 departures from project document plan.

10 Q. All right. Would you look at11 Paragraph 17.12 A. Okay.13 Q. You see there where it says a dike on14 the north side of the channel from -6 feet15 contour to the -20 feet contour is included in16 the project but its construction will be17 deferred until justified by actual channel

18 maintenance experience?19 A. Yes.20 Q. Do you know where that is?21 A. It says in the sentence above that22 retention dikes extending from the shoreline to23 the 6-foot depth contour.24 Q. Is that in the gulf?25 A. I believe this is where the channel

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1 enters Chandeleur Sound. It doesn't say it2 specifically, but -- give me one second and3 I'll look at the map and see if we -- it

4 doesn't say Chandeleur Sound, but I believe5 that is where --6 MR. SMITH:7 Greg, go the Paragraph 35 and I8 think you'll see it.9 A. Yeah. Yeah. Chandeleur Sound.

10 EXAMINATION BY MR. BRUNO:11 Q. Okay. All right. Let's move to12 General Design Memorandum Number 2, Supplement13 Number 4. This one is entitled Foreshore14 Protection.15 You with me?16 A. Yes.

17 Q. What is the purpose of this design18 memorandum?19 A. I'll read from Paragraph 2. Purposes20 are to present the basis for inclusion of21 foreshore protection in the Mississippi River22 Gulf Outlet project, the location of such23 project and revised cost estimate for the24 overall MRGO project.25 Q. Okay. Now, I need to understand the

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1 parlance of the Corps. Is this a modification2 of the project, or is this still the3 original -- within the original project4 authorization? There's a Paragraph 1 which is

5 entitled authority.6 A. (Nods affirmatively.)7 Q. And it says that the Mississippi River8 Gulf Outlet navigation improvement was9 authorized by the River and Harbor Act approved

10 29 March 1956, Public Law 455, 84th Congress,11 Second Session. The Act and description of12 the project as recommended by the Chief of13 Engineers in House Document Number 245, 81st14 Congress, First Session, are given in detail.15 In Mississippi River Gulf Outlet Louisiana16 Design Memorandum Number 2, General Design,17 dated 30 June 1959 and approved 16th

18 September 1959. So does that help us19 understand what the authority is of the Corps20 to do the foreshore protection as described by21 this supplement Number 4?22 A. I'm not sure about your question in23 that this is a modification. I cannot tell24 from reading this. It does mention the word25 modification in Paragraph 2, but that is in

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1 reference to the Chalmette area plan, which is2 part of the Lake Pontchartrain and Vicinity3 Project, not the Mississippi River Gulf Outlet.

4 Q. Right. Okay. Well, using the word5 authority as the Corps uses the word authority,6 and I'm assuming that's why they use the word7 authority in Paragraph 1, in this document the8 Corps is indicating what it believes its9 authority is to do foreshore protection, isn't

10 that true?11 A. Yes.12 Q. Okay. And it's interesting because13 they're not only citing the statutory authority14 but they're also citing the General Design15 Memorandum Number 2. Right? Isn't that true?16 Isn't that what they're saying there?

17 A. Yeah. They're stating that the18 authority is the Act of Congress.19 Q. Okay. As well as the general design20 memorandum.21 A. That's how it's written, yes.22 Q. Okay. And does the General Design23 Memorandum Number 2 subsume General Design24 Memorandums 1A, B and C?25 A. I only went to Newman High School.

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1 What does the word subsume mean?2 Q. Include.3 A. It would -- they would be referenced.4 They're sequential over time.

5 Q. Of course. All right. And what I'm6 driving at, and this is kind of tying back, you7 know, from my previous questions about the8 paragraphs that deal with foreshore protection9 and the like: The Corps recognized that it had

10 the authority to install foreshore protection11 if it thought it appropriate. That's basically12 what is indicated by this paragraph Number 1.13 Right?14 A. Well, I think this paragraph is just15 stating that the authority for the MRGO project16 is -- are those documents.17 Q. Well, actually --

18 A. You know, there the Public Law 455 and19 the House document.20 Q. Actually, this is the authority for21 the Design Memorandum Number 2, General22 Supplement Number 4. Right?23 A. Well, I think it's just stating that24 the MRGO navigation program was authorized by25 the River and Harbor Act, March 1956.

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1 Q. Okay. Fine. What is the authority,2 then, for the Corps to do Design Memorandum3 Number 2 General Supplement Number 4? What is

4 the authority for this design memo, if it's not5 in Paragraph 1?6 A. But -- it is the authority for this7 design memorandum.8 Q. Thank you. Okay. Now, this design9 memorandum is a design memorandum for foreshore

10 protection. And I know you've read this, and11 hopefully we don't have to go through it in12 detail, but generally the Corps recognized that13 wave wash from vessels was eroding the14 shoreline in the area where they'd begun15 building the Lake Pontchartrain and Vicinity16 Hurricane Protection levee. Isn't that true?

17 A. Could you just state it one more time18 for me? I was just trying to read.19 Q. Sure. The foreshore protection that's20 contemplated here, let's talk about where it's21 supposed to be put. It's supposed to be put on22 the south bank of the MRGO along that portion23 of the MRGO that is contiguous to where they24 had started building -- they didn't finish --25 the Lake Pontchartrain and Vicinity Hurricane

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1 Protection Levee.2 A. It is in reference to foreshore3 protection along the south bank of the MRGO in4 the area of the Chalmette loop portion of the

5 Lake Pontchartrain and Vicinity Project.6 Q. And the reason why they're putting7 foreshore protection there is because the Corps8 recognized that wave wash from vessels passing9 by was eroding the shoreline and it could

10 potentially damage those levees, isn't that11 true?12 A. Yes.13 Q. Okay. Now, the levees are there to14 prevent -- are there to preserve the health and15 safety of the human environment, isn't that16 true?17 A. I'm not familiar with the wording of

18 the authorization, but in general public safety19 is the purpose of those types of projects.20 (Off the record.)21 EXAMINATION BY MR. BRUNO:22 Q. Just one more question before we23 break, I just want to connect the dots here.24 So the installation of foreshore protection at25 that location was intended to minimize the

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1 impact on the health and safety of the human2 environment. That's why they chose to do it3 right there. Isn't that true?

4 A. I think the purpose is to keep the5 levee from being eroded by, as it references,6 wind generated and vessel generated waves.7 Q. All right. And you would agree that8 that would --9 A. I guess I'm just hung up on -- because

10 I don't know what the terminology in the11 authorization is. You're saying human health12 and safety.13 Q. Right. It's not a trick question. It14 has nothing to do with authorization. I'm just15 asking you to recognize, or if you do, levees16 are there to keep people from getting hurt by

17 hurricanes. So it's obviously their health and18 safety. Right?19 A. Yes.20 Q. And so the logical connection is, if21 you preserve the levee you're preserving the22 health and safety of human beings in the given23 environment.24 A. Yes.25 Q. Okay.

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1 MR. BRUNO:2 Let's break for lunch.3 (Lunch break.)4 EXAMINATION BY MR. BRUNO:

5 Q. All right. I want to see if we can6 sort of establish some understanding with7 regard to Paragraph 2 of the notice which is8 what you're here to talk about. That9 paragraph, you'll remember, and I'll just read

10 it to you again. The Army Corps' analysis11 and/or evaluations of any modifications to the12 MRGO deemed necessary to address the impacts on13 the health and safety of the human environment.14 By the way, that's where that phrase came from.15 That's why I was using that, to keep it16 consistent with the paragraph.17 I want to talk a little bit about

18 modifications to the MRGO. Okay? Because19 we've had many other depositions about what you20 can and cannot do -- the Corps can and cannot21 do. And as I look at the General Design Memo22 Number 2, Supplement Number 4, okay, and we go23 to a memo done by Thomas Bowen, Colonel, Civil24 Engineering District Engineer --25 A. Do you have a page number?

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1 Q. No, it's -- let's see. If you go to2 the back --3 A. Oh, I have it. Thomas Bowen.

4 Q. You got it? It's dated 26 May '66?5 A. No, this is a November letter. Yes.6 Q. All right. If you look at Paragraph7 Number 5, this principle is in no wise8 comparable. Just ignore that, okay? I'm not9 going to ask you a question about that. What I

10 want to understand is, the principle of taking11 action to correct an unforeseen condition which12 has been brought on by the functioning of a13 project. You see that there?14 A. Yes.15 Q. All right. In the context of16 Paragraph 2, which is what you've been

17 designated to talk about, the modification18 component, what I'd like to understand is what19 action can the Corps take to correct an20 unforeseen condition which has been brought on21 by the functioning of a project? And I'm happy22 to limit that question to, you know, the23 business of those kinds of conditions that are24 deemed necessary to address impacts on the25 health and safety of the human environment.

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1 Okay?2 First, do you understand the question?3 A. Let me paraphrase from you. You want4 to know what actions can the Corps take to

5 modify a project in which an unforeseen6 condition --7 Q. Exactly.8 A. -- is brought on.9 Q. To put it in context, which you've

10 determined will -- could impact the health and11 safety of the human environment. That's the12 question. You're right.13 There's no Bates number, this is the14 General Design Memo Number 2, Supplement15 Number 4, Foreshore Protection, which I know is16 in this somewhere. I don't know whether it has17 a number.

18 A. I don't know at the time of this, in19 terms of 1966, but we do today have the ability20 to reevaluate projects under certain standing21 authorities. So, um -- we also have multiple22 authorities that may be specifically directed23 at certain, um -- conditions associated with24 projects we have already built.25 Q. Okay.

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1 A. I don't know at the time in 19662 whether we had those same authorities.3 Q. Okay.

4 A. I would imagine -- I would say that5 you can see in the documents that when they --6 they would make reports on the annual operation7 and maintenance of the channel, and in some8 cases they may note something that has9 happened. This particular memo, where you've

10 asked me this language, is not really related11 to that subject, though. You're just12 interested in the general aspect of it.13 Q. Well, as you can see from this memo,14 and the reason why I chose this memo in15 particular is because this is a series of memos16 that go back and forth about foreshore

17 protection and, in particular, which project18 should pay for that foreshore protection. And19 that's why I'm wondering if back in 1966 the20 Corps would have authority to correct an21 unforeseen condition which has been brought on22 by the functioning of a project.23 A. I don't know the date of, for example,24 the 216 authority which would, um -- enable us25 to look at a project and re evaluate it.

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1 Q. Okay.2 A. It's something we can find out just3 by --4 Q. Fair enough. But you don't think this

5 is 216 authority, I guess, by your answer.6 A. I think it would say it -- no, I don't7 think it's 216. It should say it.8 Q. It would say it. All right. So let9 me ask you the next logical question. What is

10 216 authority? And I know you don't know the11 precise date, but, you know, the about date.12 A. I don't know the date. We can look it13 up. I can get someone to look it up for us.14 Q. Okay. We'll do that on a break. I15 know you like to be precise, and that's fair to16 you. What is 216 authority?17 A. It gives us the authority to

18 re evaluate a project, to re evaluate the19 original premise for its development, changed20 conditions, um -- needed updates, that kind of21 thing.22 Q. Okay.23 A. Um --24 Q. All right. I gather when you say 21625 that's referring to a particular --

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1 A. Section of -- yeah.2 Q. Well, is it a statute or regulation?3 A. It's a -- I believe it's a section

4 under one of the Water Resource Development5 Acts, but -- that's what I believe.6 Q. Okay. All right. The 216 authority7 that you're alluding to -- and again, remember,8 we're talking about the phrasing used here by9 Colonel Bowen. He's talking here about taking

10 action to correct. Does 216 authority allow11 you to take action and correct, or is it merely12 another one of those study options?13 A. It's a study and reporting option that14 you would report that, um -- for Congressional15 action to --16 Q. Okay. All right. So then in that

17 sense it's different from whatever it is that18 Colonel Bowen is talking about. Because 21619 doesn't give you the power to act, it gives you20 the power to study. Fair?21 A. Right. Correct.22 Q. Okay. All right. Okay. Now, in23 order for us to -- in order for me to ask you24 questions about these subjects I want to see if25 we can really narrow the scope of what we're

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1 talking about. Okay?2 A. Okay.3 Q. And that is, I'd like to see if we can4 learn from you what exactly are the problems

5 associated with the MRGO that relate to the6 environment. Okay? Since that's what we're7 here to talk about. First, we have talked a8 little bit about the erosion of the banks.9 Does the Corps regard that to be a -- an

10 environmental problem?11 A. Yes.12 Q. Okay. Let's next talk about salinity.13 Okay? Before there was any issue about14 erosion, back when the channel was originally15 being designed, did the Corps recognize that16 there was a potential to increase salinity17 levels along the length of the channel -- start

18 there, and then we'll move on.19 MR. SMITH:20 Objection. Asked and answered.21 MR. BRUNO:22 From him?23 MR. SMITH:24 No, prior witnesses.25 MR. BRUNO:

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1 I know. But Robin, I told you,2 I'm trying to set up a framework so3 that I can ask him other questions

4 without having to retread old ground.5 EXAMINATION BY MR. BRUNO:6 Q. You can answer.7 A. Yes. In the development of the8 project, the Corps was aware of concerns9 related to salinity.

10 Q. All right. And the concern was that11 it might increase the salinity levels in those12 bodies of water that were actually connected to13 the MRGO, isn't that true?14 MR. SMITH:15 Objection.16 EXAMINATION BY MR. BRUNO:

17 Q. In particular Lake Pontchartrain.18 MR. SMITH:19 Objection. Vague. Asked and20 answered.21 A. I'd have to go back and look about22 Lake Pontchartrain itself.23 EXAMINATION BY MR. BRUNO:24 Q. Yeah.25 A. But in general, in the project area,

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1 um -- there was communication between the Corps2 of Engineers and other agencies dealing with3 one factor which is salinity.4 Q. Right. I'm thinking in particular of

5 the Seabrook lock project, which was, depending6 upon what papers you read, either a MRGO7 project or a Lake Pontchartrain project, but8 all of the documents seem to suggest that one9 of the major reasons why it was contemplated

10 was to block saltwater intrusion into the lake.11 Is that accurate?12 A. Yeah. Do we have the documents about13 that particular project? I can look at them14 quickly and --15 (Off the record.)16 EXAMINATION BY MR. BRUNO:17 Q. (Tendering.)

18 A. It says, um -- Page 1, bottom of the19 page, um -- it's referencing the recommended20 protection plan.21 Q. Right.22 A. A dual purpose navigation lock in the23 Inner Harbor Navigation Canal at Seabrook for24 control of hurricane inflows into the lake as25 well as to limit objectionable salinity

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1 intrusion into the lake.2 Q. Okay. So --3 A. One thing I'll just be careful about

4 here is I don't know if -- this report appears5 prior to when I think the authorization date of6 the project is. So this --7 Q. Which one are you talking about?8 A. I'm sorry. This 21 November 19629 Interim Survey Report, Lake Pontchartrain

10 Louisiana and Vicinity.11 Q. Right. Yeah. I don't think I was12 referencing any particular date. I just meant13 in general.14 A. Well, meaning -- the concerns being15 that this is a report that was submitted before16 the authorization. I don't know what -- the

17 authorized project may not have had that lock18 for that purpose.19 Q. And I was n't asking about20 authorization, I was just asking about21 knowledge. That's all we're talking about now22 is knowledge. Okay? It has nothing to do with23 authorization. I'm just trying to -- see, I'm24 trying to limit the scope of the environmental25 issues so that I can ask about coordination and

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1 all this other business.2 A. Uh-huh.3 Q. So the Corps was aware of the4 potential for increased salinity in the

5 Mississippi River GO channel as early as6 whatever that was, 1961 or '62?7 A. And before this.8 Q. Sure. Okay. Now, the next issue was9 at some point the Corps learned that because of

10 the deterioration of the banks of the MRGO as a11 result of erosion, this water with its12 increased salinity was able to enter into the13 marshes. Isn't that correct?14 A. Yes.15 Q. Okay. And the increased salinity16 levels caused the death of freshwater trees,17 marsh vegetation and swamp vegetation. Isn't

18 that true?19 A. Well, the habitats in the area changed20 from in some cases low salinity conditions to21 higher salinity conditions.22 Q. And that caused the death of those23 trees and/or vegetation that were previously24 surviving on freshwater?25 MR. SMITH:

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1 Objection. Vague.2 EXAMINATION BY MR. BRUNO:3 Q. Isn't that true?

4 MR. SMITH:5 Asked and answered.6 A. Um -- it's a general statement, so7 it's problematic because there are types of8 vegetation that can grow in multiple salinity9 ranges.

10 EXAMINATION BY MR. BRUNO:11 Q. Sure. I didn't say all, I just said12 some.13 A. Okay. Um -- yes, it did convert marsh14 from one salinity habitat type to another.15 Q. All right. So I'm trying to see if we16 can just globally talk about the environmental

17 impact, the negative environmental impact of18 the MRGO. And if we can agree that it is19 essentially, number one, the erosion of the20 banks, the widening of the canal; number two,21 the fact that it provided a pipeline, if you22 will, for increased salinity into the channel23 itself; and number three, that with the24 increased salinity and the loss of the25 shoreline protection and the opening of the

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1 shores into the marsh saltwater was able to2 intrude and change the character of the marsh3 from fresh to salt and from low salt to high4 salt. That generally covers the environmental

5 impact of the MRGO, doesn't it?6 MR. SMITH:7 Objection. Compound.8 A. Those -- these are three factors that9 would be, you know, considered environmental

10 problems associated with the channel.11 EXAMINATION BY MR. BRUNO:12 Q. Well, these are the major ones. I'm13 sure I haven't listed them all. But I mean,14 can you think of any other major environmental15 issue that has been discussed within the Corps16 over these last forty years that the Corps has17 associated with the MRGO?

18 MR. SMITH:19 Objection. Vague.20 A. No.21 EXAMINATION BY MR. BRUNO:22 Q. Okay. Now, we'll now return to those23 newspaper articles. Here you go, 18, 19 and24 21. (Tendering.)25 A. Oh, wonderful. Here we go.

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1 Q. Yeah. I know I'm going to strain your2 eyes. 18 was the July 4th, '58 -- which number3 is that?

4 A. I have 21.5 Q. That's 21? Okay. All right. Now, I6 think we talked a little bit about this, and7 you'll forgive me because I can't remember8 every single question that I may have asked, so9 just bear with me. But this reports on a

10 meeting between the tidewater channel -- and11 we've already established what that was -- and12 a Colonel Lewis who was a representative of the13 Corps. Right?14 A. Yes.15 Q. Okay. And here he's asked16 specifically whether or not the channel may

17 increase storm tide -- it says, Colonel18 Lewis -- I'm in the five paragraphs in the19 first column. Colonel Lewis was questioned by20 Edwin Roy on the effects of storm tides in the21 parish after the channel construction. Colonel22 Lewis relied that preliminary studies show that23 with a 20-foot storm tide in Chandeleur Sound24 there will only be a one-foot effect in the25 channel.

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1 Okay. First of all, does the Corps2 regard the fact that there may be an increase3 in the storm tide of whatever amount to be an4 impact on the health and safety of the human

5 environment?6 MR. SMITH:7 Objection. Vague as to time.8 MR. BRUNO:9 This is as of July 4, 1958.

10 MR. SMITH:11 Objection. Calls for12 speculation.13 A. I don't know at the time.14 EXAMINATION BY MR. BRUNO:15 Q. Okay. Can we agree that the Corps16 represented to the Tidewater Channel at that17 time that there were not going to construct a

18 project that was going to present hazardous19 conditions? That's the paragraph right above20 that.21 MR. SMITH:22 Objection. Calls for23 speculation.24 A. It's hard to read, but it looks like25 his quote is following, um -- some questioning

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1 by one of the other attendees about --2 EXAMINATION BY MR. BRUNO:3 Q. Building bridges, yeah.

4 A. -- bridge construction. Right.5 Q. Okay. So I don't think you answered6 my question, which is, can we agree that the7 Corps represented to the Tidewater Channel8 Committee that they were not going to construct9 a project that was going to present hazardous

10 conditions?11 MR. SMITH:12 Objection. Calls for13 speculation.14 A. You know, assuming the commander --15 excuse me, the Colonel is quoted correctly,16 that's exactly what he says, we're not going

17 the construct a project that is going to18 present hazardous conditions. But the context19 of that is unclear and, you know, I assume it's20 related to the bridge discussion above.21 Q. Okay. Let's go to the next newspaper22 article. I have one dated January 16, '59.23 How did I mark that? Can you give me the24 number? January 16, '59.25 A. I don't have one with January 16th,

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1 1959.2 Q. All right. Let me mark this thing as3 Exhibit Number 45. This is a copy of the4 St. Bernard Voice, January 16th, '59. It is

5 the U.S. Engineers and Dock Board Answer 546 Questions Anent Mississippi River Gulf Outlet.7 I guess they spelled that wrong in the headline8 of the newspaper.9 (Exhibit 45 was marked for

10 identification and is attached hereto.)11 MR. BRUNO:12 That's what it says.13 MR. SMITH:14 That's a word.15 (Off the record.)16 THE WITNESS:17 You going to let us in on what it

18 means?19 MR. SMITH:20 In it means concerning.21 MR. BRUNO:22 Thank you, Robin.23 EXAMINATION BY MR. BRUNO:24 Q. It says, late in December a25 fact-finding meeting was held between the

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1 Council 's executive committee and2 representatives of agencies involved. Present3 was Colonel William Lewis, planning coordinator

4 for the Corps, dock board representatives and5 the like.6 I don't remember, did you answer my7 question about whether increasing the tides8 would present -- I don't recall if I got an9 answer to that.

10 (Off the record.)11 EXAMINATION BY MR. BRUNO:12 Q. All right. So on Page 2 of this13 article there's a question, what will prevented14 hurricane and storm waters from flooding up the15 channel and inundating the upper parish and the16 marshland? And the answer was, no appreciable

17 change in hurricane tides are anticipated due18 to construction of the channel.19 Okay. So given that we agree that20 this is a potential -- this could potentially21 impact the health and safety of the human22 environment, what evaluation if any did the23 Corps do in 1959 or before to enable them to24 answer the question the way they did when they25 say no appreciable change in hurricane tides

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1 are anticipated due to construction of the2 channel? What do you need?3 A. Can we have the, um -- the4 pre-authorization documents? I don't know --

5 I'm going see if I can find it.6 Q. That's fair.7 A. I just -- in reading this quickly I8 don't see anything, so I'm not able to answer9 the question. I don't know.

10 Q. All right. So you don't know one way11 or the other because there are no documents12 that would help you answer the question, right?13 A. Well, not in front of me.14 Q. Okay. Do you think there are any15 other document that you might be able to review16 to answer the question?17 A. There could be. I'm not aware of any

18 specific document.19 Q. Okay. Well, we will just ask if you20 find some, just tell Robin about it.21 Okay, let's move onto the next one.22 Let's see. It says, have any studies been made23 to determine whether or not the marshland will24 subside and disappear due to the channel25 waters? Answer: And E, by the way, refers to

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1 the Corps of Engineers. No studies are2 necessary as the channel waters will not make3 the marshlands subside or disappear.

4 A. What number are we looking at?5 Q. We're looking at the same exhibit, and6 we went -- you need to go to the middle column,7 and it's Question Number 23. I'm sorry. 33.8 A. And the question is -- it says -- in9 the answer right at the time no.

10 Q. No, my question to you is, what11 information allowed the Corps of Engineers to12 take that position that no study was necessary?13 What is that based on?14 A. I guess that it's the basis on the15 information available at the time.16 Q. All right. Well, can we agree that no

17 study was made to determine whether or not the18 channel waters would cause the marshlands to19 subside or disappear?20 MR. S

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