KTR00150

SAIA (VOL III), JOHN
10/2/2008
Page 1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN RE: KATRINA CANAL BREACHES CIVIL ACTION

CONSOLIDATED LITIGATION NO. 05-4182 K2
JUDGE DUVAL
PERTAINS TO: MRGO AND ROBINSON
(No. 06-2268)
(V O L U M E III)
Rule 30(b)(6) deposition of THE UNITED
STATES OF AMERICA, BY AND THROUGH THE UNITED
STATES ARMY CORPS OF ENGINEERS' DESIGNEE JOHN
SAIA, given at the U.S. Army Corps of Engineers
New Orleans District offices, 7400 Leake
Avenue, New Orleans, Louisiana 70118-3651, on
October 2nd, 2008.
REPORTED BY:
JOSEPH A. FAIRBANKS, JR., CCR, RPR
CERTIFIED COURT REPORTER #75005
Johns Pendleton Court Reporters 800 562-1285

10/2/2008
Page 2 Page 4
1 REPRESENTING THE PLAINTIFFS: 1 ALSO PRESENT:
2 BRUNO & BRUNO 2 DARCY DECKER, ESQ.
3 (BY: JOSEPH M. BRUNO, ESQUIRE) 3 TIANA CHRISTOPHER, ESQ.
4 (BY: FLORIAN BUCHLER, ESQUIRE) 4 JOHN BALHOFF, ESQ.
5 855 Baronne Street 5 BEN RODGERS, ESQ.
6 New Orleans, Louisiana 70113 6 JAIME CAMBRE, ESQ.
7 504-525-1335 7 KASSIE HARGIS, ESQ.
8 - AND - 8 KEA SHERMAN, ESQ.
9 THE GILBERT FIRM, LLC 9
10 (BY: ELISA T. GILBERT, ESQUIRE) 10 VIDEOGRAPHER:
11 (BY: BRENDAN R. O'BRIEN, ESQUIRE) 11 GILLEY DELORIMIER (DEPO-VUE)
12 325 E. 57th Street 12
13 New York, N.Y. 10022 13
14 212-286-8503 14
15 - AND - 15
16 ELWOOD C. STEVENS, JR., APLC 16
17 (BY: ELWOOD C. STEVENS, JR., ESQUIRE) 17
18 1205 Victor II Boulevard 18
19 Morgan City, Louisiana 70380 19
20 - AND - 20
21 MCKERNAN LAW FIRM 21
22 (BY: ASHLEY E. PHILEN, ESQUIRE) 22
23 8710 Jefferson Highway 23
24 Baton Rouge, Louisiana 70809 24
25 225-926-1234 25
Page 3 Page 5
1 REPRESENTING THE UNITED STATES OF AMERICA: 1 EXAMINATION INDEX
2 UNITED STATES DEPARTMENT OF JUSTICE, 2
3 TORTS BRANCH, CIVIL DIVISION 3 EXAMINATION BY: PAGE
4 (BY: ROBIN SMITH, ESQUIRE) 4
5 (BY: CONOR KELLS, ESQUIRE) 5 MS. GILBERT .................................7
6 P.O. Box 888 6 EXHIBIT INDEX
7 Benjamin Franklin Station 7
8 Washington, D.C. 20044 8 EXHIBIT NO. PAGE
9 202-616-4289 9 Exhibit 14 ................................48
10 10 Exhibit 15 ................................50
11 REPRESENTING THE U.S. ARMY CORPS OF ENGINEERS. 11 Exhibit 16 ................................68
12 CORPS OF ENGINEERS, OFFICE OF COUNSEL 12
13 (BY: JENNIFER LABOURDETTE, ESQUIRE) 13
14 7400 Leake Avenue 14
15 New Orleans, Louisiana 70118-3651 15
16 504-862-2843 16
17 17
18 REPRESENTING WASHINGTON GROUP INTERNATIONAL: 18
19 STONE PIGMAN WALTHER WITTMANN, L.L.C. 19
20 (BY: WILLIAM D. TREEBY, ESQUIRE) 20
21 546 Carondelet Street 21
22 New Orleans, Louisiana 70130 22
23 504-581-3200 23
24 24
25 25
2 (Pages 2 to 5)
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1 STIPULATION 1 impact statement.
2 IT IS STIPULATED AND AGREED by and 2 MR. SMITH:
3 among counsel for the parties hereto that the 3 Other than your lawyers.
4 deposition of the aforementioned witness may be 4 A. That's it. Because in 1976, most of
5 taken for all purposes permitted within the 5 the people that work here right now don't go
6 Federal Rules of Civil Procedure, in accordance 6 back that far. This is almost thirty years.
7 with law, pursuant to notice; 7 EXAMINATION BY MS. GILBERT:
8 That all formalities, save reading 8 Q. Are there any documents within the
9 and signing of the original transcript by the 9 Corps that you reviewed that would give you an
10 deponent, are hereby specifically waived; 10 insight into who those people were at the time?
11 That all objections, save those as to 11 A. No.
12 the form of the question and the responsiveness 12 Q. You didn't review any document.
13 of the answer, are reserved until such time as 13 MR. SMITH:
14 this deposition, or any part thereof, is used 14 Objection. Misstates his
15 or sought to be used in evidence. 15 testimony.
16 16 A. I don't recall.
17 17 EXAMINATION BY MS. GILBERT:
18 * * * 18 Q. You don't recall any documents, or you
19 19 don't recall the people?
20 20 A. Please restate that.
21 21 MR. SMITH:
22 JOSEPH A. FAIRBANKS, JR., CCR, RPR, 22 Objection. Compound question.
23 Certified Court Reporter in and for the State 23 (Whereupon the previous question was
24 of Louisiana, officiated in administering the 24 read back.)
25 oath to the witness. 25 MR. SMITH:
Page 7 Page 9
1 JOHN SAIA 1 Objection.
2 1195 Dominion Drive East, Mobile, Alabama 2 A. I looked at other documents other than
3 36695, a witness named in the above 3 the EIS.
4 stipulation, having been reminded that he was 4 EXAMINATION BY MS. GILBERT:
5 still under oath for the purpose of his 5 Q. Documents that would inform you as to
6 deposition, was examined and testified on his 6 who within the Corps in 1976 was involved in
7 oath as follows: 7 making the decisions about what information was
8 EXAMINATION BY MS. GILBERT: 8 included in the 1976 final environmental impact
9 Q. Mr. Saia, I just want to go back for a 9 statement.
10 couple of minutes over a few things. 10 A. I came across different names. I
11 MR. SMITH: 11 don't recall their names right at the moment,
12 I'm going to object. 12 no.
13 MS. GILBERT: 13 Q. As you sit here today, can you refer
14 Okay. That's fine. 14 me to any document that would give me the names
15 EXAMINATION BY MS. GILBERT: 15 of the individuals who had -- the actual
16 Q. The questions I have are relating to 16 individuals who were involved in making the
17 the final environmental impact statement. And 17 decisions about what information to include in
18 you've described a decision-making process and 18 the final environmental impact statement from
19 a series of people in the process of including 19 1976?
20 information in that document, and I'd like to 20 A. You could probably look at -- jeez,
21 know who you spoke to in preparation for your 21 that's -- no. The things I'm thinking of refer
22 deposition to determine the individuals who 22 to the original feasibility report. This --
23 were involved in that decision-making process. 23 that's not at issue on this. This is just the
24 A. For 1976? 24 operations. Um -- relative to just the
25 Q. For the 1976 final environmental 25 operations, no. I just referred to this
3 (Pages 6 to 9)
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Page 10 Page 12
1 report. 1 You answered the question.
2 Q. Can you list for me or identify for me 2 THE WITNESS:
3 the titles of the individuals who would have 3 Okay, fine.
4 been involved in 1976 in making the decisions 4 EXAMINATION BY MS. GILBERT:
5 about -- by title, not by individual name -- 5 Q. Turning your attention to the document
6 the title of the individuals who would have 6 that we closed off yesterday with, the
7 been responsible within the Corps for what 7 Mississippi River Gulf Outlet PM-R Proposal for
8 information to include in the final 8 Gaining National Environmental Policy Act
9 environmental impact statement in 1976? 9 Compliance for the Operations and Maintenance
10 MR. SMITH: 10 Program dated 4/11/2005. What does PM-R stand
11 Objection. Asked and answered. 11 for?
12 He testified in great detail about the 12 A. I believe that's the office that's
13 district engineer 's responsibility 13 re -- PM is the -- planning programs and
14 for what goes in the final EIS and the 14 project management division, and I believe the
15 draft EIS. 15 R relates to environmental branch.
16 EXAMINATION BY MS. GILBERT: 16 Q. R is environmental?
17 Q. Is the district engineer the only 17 A. Yes. Could you restate the document?
18 person who was involved in the decision, or did 18 Q. The Mississippi River Gulf Outlet PM-R
19 you describe a team of people? And you did not 19 Proposal for National Environmental Policy Act
20 give the actual titles of the people on the 20 Compliance for the Operation and Maintenance
21 team. 21 Program.
22 A. What I said, the decision is made -- 22 MR. SMITH:
23 you asked for a decision maker. It is the 23 It's Exhibit 13. Why don't we
24 district engineer. He has a whole staff of 24 just identify it as Exhibit 13?
25 people that he consults with. Now, you know, 25 EXAMINATION BY MS. GILBERT:
Page 11 Page 13
1 that would be a large group of people. 1 Q. Okay?
2 MR. SMITH: 2 A. Yes.
3 And we've already detailed it. 3 Q. What were the responsibilities of
4 EXAMINATION BY MS. GILBERT: 4 Mr. Boe in 2005?
5 Q. So you don't know as you sit here who 5 A. Um -- I wasn't here at that time;
6 the district engineer was in 1976? 6 however, I would imagine he was the section
7 A. I can walk out down the hall and find 7 chief -- one of the section chiefs in
8 out for you, if you wish. 8 environmental branch, which he is today and was
9 MR. SMITH: 9 at the time I was here.
10 Just answer the question. 10 Q. Did you speak to Mr. Boe about this
11 THE WITNESS: 11 document at all?
12 Sorry. 12 A. Yes, I did, briefly.
13 MR. SMITH: 13 Q. What did you speak to him about
14 The answer is? 14 regarding this document?
15 A. I don't know the name at that time. 15 A. Just briefly the contents of it, what
16 THE WITNESS: 16 he said, just reiterating some of the -- what's
17 Sorry. 17 stated in here. Other than that, nothing.
18 EXAMINATION BY MS. GILBERT: 18 Q. How would Mr. Boe have received the
19 Q. And in preparation for your deposition 19 task of preparing this proposal for gaining
20 did you not make any attempt to locate the 20 national compliance?
21 former district engineer who was in charge of 21 MR. SMITH:
22 drafting the 1976 final environmental impact 22 Objection. Assumes facts not in
23 statement? 23 evidence. Calls for speculation.
24 A. No. I can give you -- 24 EXAMINATION BY MS. GILBERT:
25 MR. SMITH: 25 Q. Would Mr. Boe have been tasked with
4 (Pages 10 to 13)
10/2/2008
Page 14 Page 16
1 the obligation of creating this document? 1 is a problem with the form of that
2 MR. SMITH: 2 question. So I stand by my objection.
3 Objection. Vague. 3 MS. GILBERT:
4 EXAMINATION BY MS. GILBERT: 4 Okay. I'll withdraw the question
5 Q. You can answer. 5 and I'll restate it.
6 A. I have no knowledge of that. 6 EXAMINATION BY MS. GILBERT:
7 Q. Is it among his responsibilities as 7 Q. How did the Corps create this
8 the secretary chief in the environmental branch 8 document?
9 in Planning Programs and Project Management 9 MR. SMITH:
10 Division of the New Orleans District to 10 Objection. Calls or the
11 evaluate whether or not projects or operation 11 speculation.
12 and maintenance programs are in compliance with 12 MS. GILBERT:
13 the National Environmental Policy Act? 13 He's here as the Corps.
14 A. It's the responsibility of the branch 14 MR. BRUNO:
15 chief to do that, and his boss. 15 Wait. Wait. Robin. Slow down.
16 Q. Do you know who the branch chief was 16 Slow down. That's not speculation.
17 at the time, in 2005? 17 Either he knows or he doesn't know.
18 A. I believe it was David Carney. 18 He's a 30(b)(6) witness.
19 Q. So then within the Corps, Mr. Carney 19 MR. SMITH:
20 would have been responsible to do this and he 20 My objection stands. Y'all can
21 would have assigned this task to Mr. Boe? 21 argue what you want with the Court. I
22 MR. SMITH: 22 have an objection. You can ask him
23 Objection. Calls for 23 the questions. I'll object.
24 speculation. 24 MR. BRUNO:
25 MS. GILBERT: 25 All right. If that's the way you
Page 15 Page 17
1 Robin, has this man been 1 want to play it.
2 designated to testify about this 2 A. Again, please restate the question.
3 document or not? I mean, this is a 3 EXAMINATION BY MS. GILBERT:
4 specific item on the 30(b)(6), a 4 Q. How would the Corps go about creating
5 specific item about this document. If 5 a document to evaluate the NEPA compliance of
6 he's not designated by the Corps to 6 the operation and maintenance program for the
7 testify about this document, who is? 7 Mississippi River Gulf Outlet?
8 Maybe Mr. Boe should be here. Maybe 8 A. This document? I don't know --
9 somebody from the Corps who is 9 MR. SMITH:
10 designated -- 10 No.
11 MR. SMITH: 11 Could we have the question read
12 Let me know when you're done. 12 back?
13 MS. GILBERT: 13 Listen to her question and answer
14 Is this man designated to speak 14 her question, please.
15 on behalf of the Corps regarding this 15 THE WITNESS:
16 document? Because that is two topics 16 Okay.
17 of the 30(b)(6) designation. 17 (Whereupon the previous question was
18 MR. SMITH: 18 read back.)
19 He is. And it's my job to object 19 A. If there was an issue, then it would
20 to questions that are improper as to 20 be reviewed by all parties. An issue would be
21 form. 21 raised, it would be considered, and ultimately
22 MS. GILBERT: 22 the district commander would make a decision on
23 Improper as to form. 23 a particular issue, if it's elevated to the
24 MR. SMITH: 24 district commander with input from the overall
25 Yes. And calls for speculation 25 team.
5 (Pages 14 to 17)
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Page 18 Page 20
1 EXAMINATION BY MS. GILBERT: 1 activities.
2 Q. So at what point would the Corps 2 Q. Would they have any obligation to
3 determine that it wanted to have an evaluation 3 participate in the NEPA compliance for the
4 of the NEPA compliance of operation and 4 operation and maintenance of the MRGO?
5 maintenance of the Mississippi River Gulf 5 A. They would, along with many others.
6 outlet? 6 Q. So this document was given to the
7 A. If issues arose from agencies or 7 operations division. Was it given to any of
8 others, or internally. It could be many 8 the others?
9 different ways. 9 A. I don't know.
10 Q. And if those issues arose, then the 10 Q. Who are some of the others that would
11 branch chief would have tasked somebody with 11 be responsible for the NEPA compliance of the
12 the obligation of conducting an analysis of the 12 operation and maintenance of the Mississippi
13 NEPA compliance of operation and maintenance of 13 River Gulf Outlet?
14 the Mississippi River Gulf Outlet? 14 A. Well, it's primarily operations would
15 A. Could have. I'm not sure. But it 15 be responsible. They're responsible for the
16 could be. 16 management of it. The district engineer is the
17 Q. Well, if an analysis of the NEPA 17 ultimate, like I said, but, um --
18 compliance of the operation and maintenance of 18 Q. And as you sit here today, the only
19 the Mississippi River Gulf Outlet was in fact 19 division that you know of within the Corps that
20 done, would that have been done because the 20 received this document was the operations
21 branch chief of environmental division asked 21 division?
22 one of his staff members to conduct it? 22 A. As far as I know. As far as I've
23 A. Not necessarily. It could happen many 23 been --
24 different ways. 24 Q. Do you know who within the operations
25 Q. What are some of those ways? 25 division received this document?
Page 19 Page 21
1 A. It could be an independent individual. 1 A. Um -- I believe she's retired. Um --
2 Q. So is it your testimony, then, that -- 2 I don't recall the name right at the moment.
3 or the Corps' testimony that Mr. Boe did this 3 Q. Is there anything that you can refer
4 of his own volition or that he was required to 4 to that would refresh your recollection as to
5 do it by his branch chief? 5 the name?
6 A. As far as I know it was done of his 6 A. Um -- yeah. I could probably refer to
7 own volition. 7 something.
8 Q. Do you know where this document 8 Q. What would it be?
9 ultimately went after it was completed? 9 A. Or ask someone.
10 A. Um -- it was provided to operations 10 Q. Is Linda Mathies somebody who --
11 division. 11 A. Mathies?
12 Q. What would the operations division do 12 Q. Mathies?
13 with such a document? 13 A. Yeah. Linda.
14 MR. SMITH: 14 Q. Is that the person?
15 Objection. Calls for 15 A. Yeah. That's correct.
16 speculation. 16 Q. And what was -- how do you say her
17 A. I don't have any idea what action they 17 name?
18 would take. 18 A. Mathies.
19 EXAMINATION BY MS. GILBERT: 19 Q. And what was Mathies' responsibility?
20 Q. What responsibilities would the 20 A. As I recall, she was in charge of the
21 operations division have for the NEPA 21 environmental aspects of operations and
22 compliance for the operation and maintenance of 22 maintenance in the O&M. Environmental
23 the Mississippi River Gulf Outlet? 23 compliance, I believe.
24 A. Um -- operations would be involved in 24 Q. Do you know when she retired?
25 the management of the operation and maintenance 25 A. As I understand, it was just recently.
6 (Pages 18 to 21)
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1 Q. Do you know how long she held that 1 Q. What are the dredging and shoreline
2 position? 2 protection features that are involved in the
3 A. No, I don't. But a number of years. 3 operation and maintenance of the MRGO?
4 Q. Do you know what if anything 4 MR. SMITH:
5 Ms. Mathies did with this document when it was 5 Objection. This witness is not
6 forwarded to her? 6 designated to address that topic.
7 A. I don't know what she did with it. 7 MS. GILBERT:
8 Q. Do you know whose handwriting is on 8 He's designated to address this
9 this specific copy of the document that we've 9 document, and that's the first
10 been provided? 10 sentence of this document.
11 A. I have no idea. 11 MR. SMITH:
12 Q. In preparation for your deposition, 12 If you know.
13 did you make any effort to speak with 13 A. It's what's part of the MRGO project,
14 Ms. Mathies regarding what she did when she 14 the channel and adjacent shoreline.
15 received this document? 15 EXAMINATION BY MS. GILBERT:
16 A. Yes, we did make an effort. 16 Q. Do you understand the distinction
17 Q. Did you have any occasion to speak 17 that's discussed here between hydraulic cutter
18 with her at all? 18 head dredging and hopper dredging?
19 A. No. 19 A. I know what a hopper dredge is. I
20 Q. What was the extent of the effort that 20 know what a -- basically what a cutter dredge
21 was made? 21 is. I don't get involved in that, but --
22 A. I believe there was contact via 22 Q. Are you aware of --
23 telephone, or attempt to. I'm not sure. 23 MR. SMITH:
24 Q. Did you make the effort or did 24 Counsel, if you're going to
25 somebody make that effort on your behalf? 25 pursue this I'm going to go to the
Page 23 Page 25
1 A. Um -- someone else made the effort. 1 Judge.
2 Q. And was that counsel, or was that -- 2 MS. GILBERT:
3 A. That was counsel. 3 Oh, you can, because this
4 Q. Okay. And as you sit here today, you 4 document is two topics --
5 have no idea whether or not Ms. Mathies was 5 MR. SMITH:
6 actually contacted. 6 You're going to pursue that?
7 MR. SMITH: 7 MS. GILBERT:
8 Objection. Asked and answered. 8 I absolutely am, because you
9 A. As I understand, she was contacted. I 9 designated him on this document --
10 don't know if there was discussion with her or 10 MR. SMITH:
11 anything like that, but the attempt was made to 11 Let me get the Magistrate on the
12 contact her. 12 phone.
13 EXAMINATION BY MS. GILBERT: 13 MS. GILBERT:
14 Q. In reviewing this document, it says 14 Go right ahead, because we've got
15 that the operation and maintenance program for 15 two topics --
16 the Mississippi River Gulf Outlet involves 16 MR. SMITH:
17 dredging of the channel and shoreline 17 You want this witness to tell you
18 protection features. Are you at all familiar 18 what a cutter head dredge is?
19 with the contents of the actual shoreline 19 MS. GILBERT:
20 protection features that are being described by 20 No, I want this witness to
21 Mr. Boe? 21 discuss this document.
22 MR. SMITH: 22 MR. SMITH:
23 Objection. Vague. Contents of 23 You're going to ask him what
24 the shoreline protection features? 24 every term in there is.
7 (Pages 22 to 25)
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1 I want him to discuss why those 1 final version of this document?
2 issues that in this document -- 2 A. Yes. There was.
3 MR. SMITH: 3 Q. And where is that document, if you
4 No, no. That's not what you 4 know?
5 asked him. If you're going to 5 A. There isn't.
6 continue to ask him what every feature 6 Q. There is none. And do you know if
7 described in that document is, I'm 7 this document was ever reviewed subsequent to
8 going to the Magistrate. Because he's 8 the 2005 date? The date on the document in
9 not going to sit here and answer those 9 2005, April.
10 questions. 10 MR. SMITH:
11 MS. GILBERT: 11 Objection. Reviewed by whom?
12 Robin, have you read this 12 MR. STEVENS:
13 document? It's four pages. Have you 13 Anyone.
14 read it? 14 MR. SMITH:
15 MR. SMITH: 15 Counsel, you're not asking the
16 Listen, whether I've read it or 16 questions.
17 not is none of your business. And if 17 MR. STEVENS:
18 you're going to ask him questions 18 I'm talking to you.
19 about every term in there I'm going to 19 MR. SMITH:
20 go to the Magistrate. I've had enough 20 You don't talk to me when you're
21 of this dilatory tactics. 21 sitting in the back of the room. I'm
22 MS. GILBERT: 22 defending this deposition and you're
23 How are you going to justify to 23 not a counsel taking this deposition.
24 the Magistrate -- 24 MR. STEVENS:
25 MR. SMITH: 25 No, I'm not. But I'm an attorney
Page 27 Page 29
1 You have asked question after 1 in this case and I'm an officer of
2 question -- 2 this court, and what you're doing is
3 MR. STEVENS: 3 disruptive and you're making this
4 Whoa, whoa, whoa, whoa, whoa. 4 deposition last two days. And if
5 One at a time, please. 5 anything I can do to aid this process,
6 MR. SMITH: 6 I'm going to step forward every time.
7 We have another witness scheduled 7 And if you want to get the Magistrate
8 to start at 9:30 and you're going 8 on the phone that will be fine because
9 through one by one asking him if he 9 you are the one who's being dilatory
10 knows what a cutter head dredge is and 10 and not us.
11 what a hopper dredge is? 11 Let the witness answer the
12 MS. GILBERT: 12 questions. Make your objection. You
13 Where is the first, um -- where 13 don't really have to make an
14 is the designation? 14 objection. They're all reserved until
15 EXAMINATION BY MS. GILBERT: 15 the time it's offered in evidence
16 Q. Do you know if there were any other 16 anyway. So all your objections are
17 iterations of this document? 17 nothing but a waste of time. So don't
18 A. I'm not aware. 18 tell me when I can't speak.
19 Q. Did you do a search to determine if 19 MR. SMITH:
20 there were any other iterations of this 20 You can't speak in this
21 document? 21 deposition.
22 A. I didn't do a search. 22 MR. STEVENS:
23 Q. I'm sorry? 23 I can speak as an officer of this
24 A. Go ahead. 24 court at any time. I not questioning
25 Q. Did you ask Mr. Boe if there was any 25 the witness, but I'm talking to you
8 (Pages 26 to 29)
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Page 30 Page 32
1 about your conduct here. You need to 1 representative, then say that and
2 let the witness answer the question or 2 we'll be happy to have a different
3 make an objection and it's preserved. 3 witness. I'd be delighted to talk to
4 You really don't even have to do that, 4 Mr. Boe. I'm not trying to trick the
5 but we're willing to let you do it if 5 Corps' witness, I just want to discuss
6 you wish. 6 this document with the witness that
7 Just let the witness answer. 7 the Corps has designated who is most
8 You're the one who's delaying thins. 8 knowledgeable about it. And if this
9 He's designated to respond to 9 is not the right witness why don't we
10 questions about this document. These 10 get that over with and say it on the
11 questions are regarding this document. 11 record and move on to another witness.
12 If he doesn't know, he's capable of 12 I'd be happy to do it.
13 saying he doesn't know. He's done it 13 Seriously, Robin, I'd be happy to
14 a bunch of times in the last two days. 14 do it if that's what you'd rather
15 Let him do it again. That's all we're 15 have. It's one document. Four pages.
16 asking you to do. 16 MR. SMITH:
17 MR. SMITH: 17 My objection stands. He can
18 Are you done? 18 answer the question. You want to
19 MR. STEVENS: 19 withdraw the question?
20 Yes. 20 MS. GILBERT:
21 MR. SMITH: 21 No, I don't want to withdraw the
22 Okay. Let's get on with the 22 question.
23 deposition then. 23 MR. SMITH:
24 MR. STEVENS: 24 Then he can answer the question.
25 Thank you. 25 You propound the questions, I'll state
Page 31 Page 33
1 EXAMINATION BY MS. GILBERT: 1 my objections.
2 Q. Are you aware of whether or not 2 MR. TREEBY:
3 environmental complaints had been obtained for 3 I think it's improper to argue
4 the use of hopper dredges in the inland reach 4 with objections, frankly. I think,
5 of the MRGO? 5 Elwood, you would agree with that.
6 MR. SMITH: 6 MR. STEVENS:
7 Objection. We have a witness 7 Yes.
8 scheduled to address dredging. This 8 A. Please restate the question.
9 witness is not designated to address 9 EXAMINATION BY MS. GILBERT:
10 that. He's designated to address the 10 Q. Are you aware of whether or not the
11 processes and the procedures for 11 Corps had obtained environmental compliance
12 obtaining NEPA compliance, not whether 12 with regard to the use of hopper dredging in
13 or not there was compliance with 13 the inland reach of the MRGO?
14 dredging. 14 A. No, not that issue.
15 MS. GILBERT: 15 Q. Are you aware of whether or not when
16 He's designated on this document 16 this document was drafted the Corps perceived
17 specifically. And this is the subject 17 that the NEPA compliance required that
18 of this document specifically. It's 18 supplemental environmental impact statements be
19 not like we pulled this document out 19 prepared regarding the methods used of dredging
20 of thin air. This was a designated, 20 in the MRGO?
21 Bates stamped, identified document in 21 MR. SMITH:
22 the topics. Two of the topics. And 22 Objection. Vague.
23 this is the substance of this 23 A. I can say during the period I was here
24 document. If you don't want this 24 that from 2000 to 2004 there was no issue
25 witness to be the designated 25 raised relative to an EIS being required, or a
9 (Pages 30 to 33)
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Page 34 Page 36
1 supplemental EIS. 1 document from one individual within the Corps.
2 EXAMINATION BY MS. GILBERT: 2 Q. And is this an internal document
3 Q. And at the time this document was 3 relevant to the operation and maintenance of
4 prepared did that opinion change? 4 the MRGO?
5 A. Um -- 5 A. It is an internal draft document
6 MR. SMITH: 6 prepared by an individual.
7 Objection. Vague. That opinion? 7 Q. Did he prepare it in his individual
8 EXAMINATION BY MS. GILBERT: 8 capacity or did he prepare it as a secretary
9 Q. Withdrawn. At the time this document 9 chief in the environmental branch of planning
10 was prepared in 2005, it is not the conclusion 10 programs or the project management division of
11 of Mr. Boe that a supplemental environmental 11 the New Orleans District of the, um -- Corps of
12 impact statement was in fact necessary for the 12 Engineers?
13 operation and maintenance of the MRGO? 13 MR. SMITH:
14 MR. SMITH: 14 Objection. Vague.
15 Objection. Calls for 15 A. He, as I understand, prepared it as an
16 speculation. 16 individual person in the Corps of Engineers.
17 EXAMINATION BY MS. GILBERT: 17 He's a branch -- a section chief.
18 Q. Withdrawn. Is it not true that the 18 EXAMINATION BY MS. GILBERT:
19 Corps when it prepared its document regarding a 19 Q. Is it the Corps' position he did this
20 proposal for gaining National Environmental 20 on his own time?
21 Policy Act compliance for the operation and 21 A. I don't know. I can't answer that.
22 maintenance program perceived the need to 22 Q. Is it the Corps' position that this
23 supplement its environmental impact statement? 23 was not done within his responsibilities as a
24 MR. SMITH: 24 secretary chief in the environmental branch in
25 Objection. 25 Planning Programs and Project Management
Page 35 Page 37
1 A. Not the Corps. 1 Division of the New Orleans District of the
2 MR. SMITH: 2 Army Corps of Engineers?
3 Objection. 3 A. He's a section chief in the
4 THE WITNESS: 4 environmental branch, he prepared this himself,
5 Sorry. 5 it is in draft form, and he may have done it on
6 MR. SMITH: 6 the job or outside, but that's, um -- you know,
7 Assumes facts not in evidence. 7 that's the situation.
8 EXAMINATION BY MS. GILBERT: 8 Q. Is there any document within the Corps
9 Q. You can answer the question. 9 or anything that you reviewed that would
10 MR. STEVENS: 10 support the contention that this was not a
11 He did. He said not the Corps. 11 document that was done in the ordinary course
12 EXAMINATION BY MS. GILBERT: 12 of business of the Army Corps of Engineers?
13 Q. Is it your position -- is it the 13 A. Restate that again, please.
14 Corps' position that the representations made 14 MS. GILBERT:
15 by the secretary chief of the environmental 15 Read it back.
16 branch in planning programs division and 16 (Whereupon the previous question was
17 project management division is not adopted by 17 read back.)
18 the Corps? 18 A. People come up, in the Corps of
19 MR. SMITH: 19 Engineers, with different ideas every day about
20 Objection. Vague as to 20 things.
21 representations made. 21 EXAMINATION BY MS. GILBERT:
22 EXAMINATION BY MS. GILBERT: 22 Q. Is that among their responsibilities?
23 Q. Is it your position that this document 23 A. It can be.
24 was not adopted by the Corps? 24 Q. Who is Mr. William Klein?
25 A. My position is this is a draft 25 A. William Klein works in environmental
10 (Pages 34 to 37)
10/2/2008
Page 38 Page 40
1 branch, and he prepares environmental 1 Q. Do you know what determinations went
2 statements and stuff like that. 2 into the decision of what constituted
3 Q. Have you had any occasion to speak to 3 significant?
4 Mr. Klein about the final environmental impact 4 A. I don't know what was in his mind. He
5 statement that was prepared in 1976 with regard 5 listed a whole bunch of EAs and different types
6 to the operation and maintenance of the MRGO? 6 of actions that were done.
7 A. No. 7 Q. And at what point in the history of
8 Q. Have you had any occasion or taken the 8 those EAs did the cumulative effect of those
9 opportunity in preparation for your deposition 9 changes become significant?
10 today to discuss with Mr. Klein his perception 10 MR. SMITH:
11 of this document that's been marked as 11 Objection. Calls for
12 Exhibit -- I don't know -- what was it marked 12 speculation. Also assumes facts not
13 as? 13 in evidence.
14 A. 13. 14 A. As far as I know, up to 1 January 2005
15 Q. 13? 15 there was no issue.
16 A. No. 16 EXAMINATION BY MS. GILBERT:
17 Q. Do you know how long Mr. Klein has 17 Q. And what happened on 1 January 2005?
18 been with the Corps? 18 A. I'm indicating at the time that I was
19 A. A number of years. He was here when I 19 here that there was no issue raised. This is
20 was here. 20 subsequent to that time.
21 Q. Is he still with the Corps? 21 Q. Have you reviewed or have you
22 A. Yes. 22 discussed with anyone documentation that
23 Q. Now, I asked you whether or not you 23 demonstrates that the district chief was
24 had reviewed any documentation that would 24 incorrect in his assessment that the cumulative
25 suggest that this document was not prepared in 25 effects of the individual changes in operation
Page 39 Page 41
1 the ordinary course of business, and I don't 1 and maintenance had become significant and
2 believe you answered that question. 2 necessitated a supplemental environmental
3 A. I have no idea. I mean, I assume it 3 impact statement?
4 was. 4 A. Could you please clarify for me
5 Q. I'll take that as a yes. 5 district chief, or --
6 And when this document was prepared in 6 Q. Mr. Boe.
7 the ordinary course of business it was the 7 A. Okay.
8 conclusion of the secretary chief that the 8 THE WITNESS:
9 cumulative effects of the changes to operation 9 Read the question over, please.
10 and maintenance were significant and 10 MS. GILBERT:
11 necessitated an environmental impact statement? 11 And substitute secretary chief
12 MR. SMITH: 12 for district chief, please.
13 Objection. Calls for 13 MR. SMITH:
14 speculation. 14 So are we propounding a new
15 A. Restate that, please. Or re-read it. 15 question, then?
16 (Whereupon the previous question was 16 MS. GILBERT:
17 read back.) 17 No, there's a question pending.
18 A. The section chief did indicate that an 18 MR. SMITH:
19 SEIS should be prepared. 19 But you're asking the court
20 EXAMINATION BY MS. GILBERT: 20 reporter to substitute one word for
21 Q. When you discussed this document with 21 another. That sounds like a different
22 Mr. Boe, did you learn at what point he 22 question to me. Are you going to
23 determined that the changes had become 23 stick with the original question or do
24 significant? 24 we have a new question?
25 A. Um -- no. Um -- 25 EXAMINATION BY MS. GILBERT:
11 (Pages 38 to 41)
10/2/2008
Page 42 Page 44
1 Q. It's the original question. Mr. Boe 1 2005 for use of shoreline protection materials?
2 is the name of person, the section chief. 2 A. I assume you're referring to that
3 (Whereupon the previous question was 3 master plan as three maps. No.
4 read back by the court reporter, substituting 4 Q. The master plan -- I'm sorry. Your
5 the words section chief for district chief.) 5 answer?
6 A. The answer would be no. 6 A. I think that you're referring to the
7 EXAMINATION BY MS. GILBERT: 7 statement although referred to as a master plan
8 Q. Mr. Saia, is it correct, then, that 8 the plan apparently consists of on only --
9 you have not spoken with anyone or reviewed any 9 consists only of three maps showing the ACM
10 documentation that would support the contention 10 will be placed along the south bank over the
11 that the Corps concluded that anything that 11 next twenty years.
12 Mr. Boe concluded in this letter or memo was 12 Q. The master plan for use of articulated
13 wrong? 13 concrete materials.
14 MR. SMITH: 14 A. I didn't know of a master plan. I
15 Objection. Vague. 15 knew about, um -- ACM.
16 A. I haven't gone over this with -- this 16 Q. Would the construction of channel --
17 memo with anyone except Mr. Boe and the 17 bank stabilization materials along the MRGO
18 attorneys. That's all. 18 constitute a change in the operation and
19 EXAMINATION BY MS. GILBERT: 19 maintenance of the MRGO?
20 Q. So you have no reason to believe that 20 A. Please state that again.
21 anyone at the Corps perceived that this was 21 (Whereupon the previous question was
22 incorrect. 22 read back.)
23 A. Correct or incorrect. 23 A. Depends on the situation. Could.
24 Q. You have no reason as a -- testifying 24 EXAMINATION BY MS. GILBERT:
25 here on behalf of the Corps, you have no 25 Q. What depends on the situation?
Page 43 Page 45
1 position on whether or not the substance of the 1 A. What the change is, or what you're
2 memorandum prepared by the section chief in 2 indicating would be the change.
3 environmental branch in Planning Programs and 3 Q. The change in one material for another
4 Project Management Division of the New Orleans 4 type of material in bank stabilization efforts.
5 District was incorrect. 5 A. A change is a change.
6 A. Neither, no. 6 Q. Would a change necessitate -- I mean,
7 Q. You have no position on that. Okay. 7 you've testified already that a change would
8 Are you aware of any efforts undergone 8 necessitate an evaluation of the operation and
9 by anyone in the Corps to prepare a 9 maintenance for the environmental impacts of
10 supplemental environmental impact statement 10 that change.
11 regarding the operation and maintenance of the 11 A. What I see in here what they did is,
12 MRGO as a result of the conclusions drawn by 12 for various types of actions environmental
13 Mr. Boe? 13 assessments were made.
14 A. No. 14 Q. How many times did you speak with
15 Q. Did you speak with Mr. Boe about what 15 Mr. Boe regarding this document?
16 considerations he evaluated in determining that 16 A. Couple times, maybe.
17 significant changes had taken place in the 17 Q. How long were the conversations,
18 operation and maintenance of the MRGO? 18 approximately?
19 A. No, just what he had stated in the, 19 A. Oh, not too long, maybe ten minutes.
20 um -- in this draft. 20 Q. Did you speak to him over the phone or
21 Q. Did you discuss with him at all the 21 did you speak with him in person?
22 shoreline protection plans that he evaluated in 22 A. In person.
23 this report? 23 Q. And he's still with this division of
24 A. No. Not specifically. 24 the Corps?
25 Q. Are you aware of a master plan from 25 A. Yes, he is.
12 (Pages 42 to 45)
10/2/2008
Page 46 Page 48
1 Q. Did he ever indicate to you that this 1 A. MVN is the district symbol. It is New
2 report was not accepted by the Corps for some 2 Orleans. I'm not sure of the D.
3 reason or that he was reprimanded for preparing 3 Q. Okay. It could be an error. I
4 this? 4 apologize.
5 A. He indicated that he had provided it 5 All right. And what is the district
6 to Linda Mathies. 6 symbol -- or is MVK a district symbol?
7 Q. And did he indicate to you that she 7 A. MVK is the district symbol for
8 said anything to him about having prepared 8 Vicksburg.
9 this? 9 Q. Okay. I'm going to give you a
10 A. Um -- as I recall, there was -- he 10 document that is dated May 31, 2005. It's an
11 just said there was no action taken. 11 E-mail.
12 (Off the record.) 12 (Exhibit 14 was marked for
13 EXAMINATION BY MS. GILBERT: 13 identification and is attached hereto.)
14 Q. Mr. Saia, who is Mr. Bruce Baird, if 14 MR. STEVENS:
15 you know? B-A-I-R-D. 15 May one of you let the witness
16 A. Oh. Baird. Um -- Bruce worked in the 16 have one of those?
17 environmental branch. 17 EXAMINATION BY MS. GILBERT:
18 Q. Do you know what his responsibilities 18 Q. Have you ever had -- have you had
19 were in 2005? 19 occasion the review this E-mail prior to your
20 A. He was under one of the section 20 deposition today?
21 chiefs, that is, one of the senior 21 A. No.
22 environmental staff. 22 Q. Does this document suggest that the --
23 Q. Do you know what section? 23 that Richard Boe was cc'd in a stream of
24 A. I don't. 24 communications regarding preparing an analysis
25 Q. Okay. 25 of NEPA compliance for --
Page 47 Page 49
1 A. There were three sections. 1 A. Could --
2 Q. What are the three sections? 2 Q. -- for the operation and maintenance
3 A. I don't have that information, you 3 of the MRGO?
4 know, right in front of me, ma'am. I don't 4 A. I need a few minutes to read this,
5 have the bar chart. There were three basic 5 please.
6 sections, one does archeology, one does EISs, 6 Q. Oh. I'm sorry.
7 and, um -- you know, it's -- I can't tell 7 MR. STEVENS:
8 you -- I don't recall which section he was 8 Let us know when you're ready.
9 under. He was under the branch which is 9 MR. SMITH:
10 responsible for the environmental activities, 10 Is the question essentially
11 recreational activities, et cetera. 11 whether he's cc'd on this email? Are
12 Q. Okay. Who is Edward Creef. 12 you asking him to agree with your
13 C-R-E-E-F? 13 characterization of the E-mail?
14 A. I don't know. 14 MS. GILBERT:
15 Q. Do you know who Susan Hennington is? 15 I'm asking him to agree with the
16 H-E-N-N-I-N-G-T-O-N? 16 characterization of the E-mail.
17 A. I don't recall her name. 17 I'm also giving you this one.
18 Q. Do you recall who Jeffrey Corbino 18 I'm going to premark it. It actually
19 C-O-R-B-I-N-O is -- was in 2005? 19 predates the one that Mr. Saia is
20 A. No. 20 looking at, and it's dated April 25th,
21 Q. What does the title acronym DMVN mean? 21 2005, but it's a string of E-mail
22 A. DMVN? 22 communications dating back to
23 Q. Yeah. 23 April 21st. From April 21st to
24 A. DMVN. MVN. 24 April 25. (Tendering.)
25 Q. MVN. 25 MR. STEVENS:
13 (Pages 46 to 49)
10/2/2008
Page 50 Page 52
1 Which is marked as Number 15. 1 A. Bruce was working in environmental as
2 (Exhibit 15 was marked for 2 an environmental resources type person. He
3 identification and is attached hereto.) 3 worked for Richard Boe. He's no longer
4 EXAMINATION BY MS. GILBERT: 4 employed here.
5 Q. Do you want to look at that one? 5 Q. Mr. Baird is no longer employed here?
6 (Off the record.) 6 A. No.
7 MR. STEVENS: 7 Q. And Mr. Russo, what is his position?
8 Okay, the time is now 11:11, and 8 A. Mr. Russo -- he works at ERDC, um --
9 we broke at 10:33 according to the 9 it's a research center for the Corps of
10 realtime transcript. So it's been -- 10 Engineers in Vicksburg, Mississippi.
11 10:23. So it's been -- 37 and 11 is 11 Q. Did you have occasion to reach
12 48 minutes? 48-minute break so the 12 Mr. Russo?
13 witness could review two E-mails and 13 A. No. We were not able to.
14 so that Mr. Smith could make a phone 14 Q. Do you know what Mr. Russo 's position
15 call. But, you know, the time has 15 was in 2005?
16 come to resume the deposition. I've 16 A. There is a discussion in Exhibit 15,
17 asked local counsel here, in-house 17 in the E-mail, that he wrote dated April 22nd,
18 counsel, Ms. Jennifer -- I can't tell 18 2005.
19 you her last name -- to go and get 19 Q. Does that discussion indicate what his
20 them so we can get started again. But 20 position was in 2005?
21 I think we've had more than enough 21 A. Could you clarify position?
22 time for the witness to review the 22 Q. Within the Corps.
23 exhibit presented to him and for 23 A. Oh, his -- okay. Um -- he indicates
24 Mr. Smith to make his phone call. 24 that he's, in the E-mail, the MRGO operations
25 Thank you very much. And again I 25 manager.
Page 51 Page 53
1 ask that we resume the deposition now. 1 Q. Who is Marietta Smith?
2 (Off the record.) 2 A. Based on the E-mails, Marietta Smith
3 MS. GILBERT: 3 works in the division office, it's indicated as
4 Back on the record, how long has 4 MVD.
5 the break been? 5 Q. Is that Vicksburg?
6 THE VIDEOGRAPHER: 6 A. Yes, it is.
7 From 10:23 to 11:14. 7 Q. Having reviewed these e-mails, do you
8 EXAMINATION BY MS. GILBERT: 8 now understand that this analysis of the
9 Q. You've had nearly an hour to review 9 proposal for gaining NEPA compliance had been
10 the three E-mails that I presented, during a 10 deliberated and considered among the two
11 break. Did you take the opportunity during 11 divisions Vicksburg and New Orleans?
12 that time to speak to anyone at the Corps other 12 MR. SMITH:
13 than your attorneys about the content of those 13 Objection. Vague.
14 E-mails? 14 A. I don't know if that document -- I'm
15 A. Um -- we did attempt to. 15 not sure.
16 Q. Who did you attempt to contact during 16 Could you repeat that?
17 the hour that you took to review these 17 (Whereupon the previous question was
18 documents? 18 read back.)
19 A. Um -- Bruce Baird. 19 A. Are you addressing Exhibit 134?
20 Q. Okay. 20 MR. SMITH:
21 A. He's on the -- and Edmond Russo. 21 Objection. Vague. "This
22 Q. Did you have occasion to speak to 22 analysis."
23 either of those gentlemen? 23 EXAMINATION BY MS. GILBERT:
24 A. No. 24 Q. The analysis that we have been
25 Q. What is Bruce Baird 's position? 25 discussing and has been marked previously as
14 (Pages 50 to 53)
10/2/2008
Page 54 Page 56
1 Exhibit 13 of a proposal for gaining NEPA 1 Exhibit 13 that we discussed earlier --
2 compliance for the operation and maintenance 2 A. Exhibit 13? Yes.
3 programs in the Mississippi River Gulf Outlet. 3 Q. Exhibit 13 -- Mr. Boe concluded that
4 A. Exhibit 13 is not explicitly discussed 4 despite the fact that EAs had been performed,
5 in Exhibit 15 or 14. Um -- it appears to be 5 that supplemental -- the cumulative effect of
6 similar related issues; MRGO. 6 the conduct on the environment necessitated, in
7 Q. Do you have any knowledge of any other 7 his opinion, supplemental environmental impact
8 analysis prior to April 11th, 2005 in which the 8 statements.
9 Corps analyzed its status of NEPA compliance 9 MR. SMITH:
10 with regard to the operation and maintenance of 10 Objection as to form.
11 the MRGO? 11 A. He states that.
12 A. Just that there were a number of other 12 EXAMINATION BY MS. GILBERT:
13 environmental documents such as EAs. 13 Q. Okay. So at that point -- at this
14 Q. Have you -- the EAs do not evaluate 14 point, Mr Boe has concluded, based on his
15 whether the operation and maintenance is in 15 review of the Corps' conduct, that they're not
16 compliance with NEPA, though, do they? 16 in compliance -- they're no longer in
17 A. They're related to the process that is 17 compliance with NEPA.
18 required by the Corps that they go through 18 MR. SMITH:
19 relative to responding to NEPA. 19 Objection. Calls for
20 Q. On the subject of whether or not the 20 speculation.
21 operation and maintenance of the MRGO has been 21 A. He says, the major points of this
22 performed in compliance with NEPA, are you 22 proposal is an supplemental EIS or SEIS needs
23 aware of any other undertaking in which the 23 be prepared for the O&M program for the MRGO.
24 Corps evaluated compliance with NEPA? Its 24 EXAMINATION BY MS. GILBERT:
25 performance in complying with NEPA. 25 Q. Does he also say that the cumulative
Page 55 Page 57
1 A. Please read that read back. 1 impact of all the changes that have already
2 (Whereupon the previous question was 2 occurred since the preparation of the 1976 EIS
3 read back.) 3 alone constitutes significant impacts on the
4 A. As I indicated, there were 4 environment?
5 environmental assessments prepared in 5 MR. SMITH:
6 compliance with NEPA as part of this project. 6 Is there some question about what
7 EXAMINATION BY MS. GILBERT: 7 the document says, counsel?
8 Q. My question to you, though, is are you 8 MS. GILBERT:
9 aware of any other undertakings within the 9 Well, I think we have a
10 Corps to evaluate the Corps' performance in 10 difference of opinion on it. I'm
11 complying with NEPA? Not whether or not they 11 trying to clarify whether or not this
12 did other documents, but whether or not those 12 is -- actually, we've got a question
13 other documents were actually satisfactory in 13 pending.
14 complying with NEPA. 14 MR. SMITH:
15 A. They are the documents to comply with 15 And the question is whether this
16 NEPA that were associated with MRGO. That is 16 document says something?
17 compliance. My understanding. 17 MS. GILBERT:
18 Q. My question, though, to you is are you 18 Uh-huh.
19 aware of any internal analysis that the Corps 19 MR. TREEBY:
20 undertook to evaluate its own processes and its 20 That's a joke.
21 own performance in preparing documents to keep 21 MR. SMITH:
22 the MRGO operation and maintenance in 22 Okay. We asked him about a
23 compliance with NEPA? 23 number of documents yesterday and
24 A. I'm not sure of your question. 24 whether they said things. Are we
25 Q. Okay. Well, Mr. Saia, turning to 25 going to continue to ask him whether
15 (Pages 54 to 57)
10/2/2008
Page 58 Page 60
1 documents say things or not? Because 1 EXAMINATION BY MS. GILBERT:
2 if we are, I'm going to go to the 2 Q. Other than EAs.
3 Magistrate. 3 A. There was, I'm sure, ongoing
4 MS. GILBERT: 4 discussions of NEPA requirements in pursuit of
5 Why, because of an hour for 5 this project and pursuit of all projects.
6 review -- 6 Q. Now, you've reviewed a series of
7 MR. SMITH: 7 E-mails that followed closely in time with the
8 I'm going to go to the Magistrate 8 report that we've just reviewed. The first one
9 because asking him whether a document 9 is dated -- the top E-mail is dated April 25th,
10 says something is a waste of time. 10 2005, chronologically, and the next one is
11 EXAMINATION BY MS. GILBERT: 11 dated May 31st, 2005. Now, the substance of
12 Q. Mr. Saia, let me withdraw the 12 the information that's contained in the
13 question. 13 April 25th, 2005, would you agree that the
14 Is it true that this document contains 14 substance of what is discussed with regard to
15 a critical analysis of the Corps' compliance 15 NEPA compliance of the MRGO operation and
16 with NEPA as it relates to the cumulative 16 maintenance is the same as the substance that
17 effects of operation and maintenance to date? 17 is discussed in the memorandum that we've
18 A. It includes Mr. Boe 's comments 18 marked as Exhibit 13?
19 relative to MRGO environmental compliance. 19 A. To some extent.
20 Q. And Mr. Boe 's comments are a critical 20 Q. Okay. Is there anything that you can
21 analysis of the Corps' compliance with NEPA 21 identify in either of these documents that
22 with regard to operation and maintenance? 22 suggests what precipitated the undertaking to
23 MR. SMITH: 23 evaluate NEPA compliance on the MRGO under the
24 Objection. Calls for 24 O&M program?
25 speculation. 25 A. Exhibit 15 discusses NEPA in
Page 59 Page 61
1 A. It includes Mr. Boe 's discussion of 1 relationship to MRGO, some actions relative to
2 environmental compliance for MRGO. 2 ACM, it also talks about the reevaluation of
3 EXAMINATION BY MS. GILBERT: 3 MRGO, it also talks about Louisiana Coastal
4 Q. And does Mr. Be conclude in this 4 Area studies and its relationship. Those are
5 report that has been disseminated that he 5 the type of discussions relative to
6 believes that the cumulative effects of the 6 environmental activities.
7 operation and maintenance of MRGO necessitated 7 Q. Are you aware of what the
8 a supplemental environmental impact statement? 8 environmental operating principles that would
9 MR. SMITH: 9 govern environmental sustainability of the O&M
10 Objection. Assumes facts in 10 program are?
11 evidence contrary to his prior 11 A. There's a list. I don't have it
12 testimony that this was not 12 immediately available with me. Um -- it was
13 disseminated. 13 published in like 2002 or so, of environmental
14 A. It includes a discussion of 14 operating principles. It was published by the
15 environmental compliance for operation and 15 chief 's office, and I believe there were about
16 maintenance of the MRGO. 16 seven items, something in that regard.
17 EXAMINATION BY MS. GILBERT: 17 Q. Where is that?
18 Q. With NEPA. 18 A. I don't recall offhand. We can get a
19 A. With NEPA, correct. 19 copy of one.
20 Q. Are you aware of any other undertaking 20 MS. GILBERT:
21 prior to 2005 in which the Corps evaluated its 21 I would call for the production
22 compliance with NEPA with regard to operation 22 of it.
23 and maintenance of the MRGO? 23 MR. SMITH:
24 MR. SMITH: 24 It's on the Internet, counsel.
25 Objection. Asked and answered. 25 You can look it up for yourself.
16 (Pages 58 to 61)
10/2/2008
Page 62 Page 64
1 MR. BRUNO: 1 Magistrate has so ordered.
2 Can you give us a little -- 2 MR. BRUNO:
3 MR. SMITH: 3 I'm issuing a separate request
4 Go to the website for the Army 4 for production of these documents.
5 Corps of Engineers, click on 5 Okay? We can take it up with the
6 publications, and search for 6 Magistrate.
7 environmental principles. 7 Why are you being so difficult?
8 MR. BRUNO: 8 MR. SMITH:
9 Okay. I'll do that right now. 9 Well, it might be because it's
10 EXAMINATION BY MS. GILBERT: 10 Thursday and we're still on the first
11 Q. After you've had an opportunity to 11 witness. Other than that, I'm in a
12 review these E-mails, do you now have an 12 great mood, Joe.
13 understanding of whether or not the subject of 13 MR. TREEBY:
14 NEPA compliance with regard to operation and 14 Well said.
15 maintenance of the MRGO was a topic under 15 MR. STEVENS:
16 consideration at the Corps in 2005? 16 Actually, in realtime it's still
17 A. Based on Exhibit 15, there appear to 17 Tuesday.
18 be discussions on going, principally between 18 MR. SMITH:
19 the division and the district, on aspects of 19 Elwood, you need to wind your
20 environmental compliance relative to MRGO as 20 watch.
21 related to LCA, related to conditional work on 21 EXAMINATION BY MS. GILBERT:
22 articulated concrete matting, um -- and as I 22 Q. All right. Do you have any knowledge
23 said, the reevaluation report. So there were a 23 of any other time -- do you have any knowledge
24 number of issues being discussed relative to 24 of any other projects between 1976 and 2005
25 the compliance. So those are ongoing 25 that would have necessitated the Corps'
Page 63 Page 65
1 discussions, apparently. That's what I see 1 evaluating NEPA compliance of operation and
2 here. 2 maintenance of the MRGO?
3 Q. Does that in any way affect your 3 A. Repeat that question.
4 interpretation of whether or not Mr. Boe took 4 (Whereupon the previous question was
5 it upon himself to prepare that document that 5 read back.)
6 we marked as Exhibit 13, or whether that was an 6 EXAMINATION BY MS. GILBERT:
7 undertaking within the Corps? 7 Q. I'll rephrase it. Between 1976 and
8 A. That was his undertaking, as I 8 2005, are you aware of any events that
9 indicated before. He prepared it. He prepared 9 precipitated the Corps evaluating its proper
10 that. 10 compliance with NEPA in regard to the
11 Q. Is Mr. Boe an engineer? 11 evaluation of operation and maintenance of the
12 A. No. 12 MRGO?
13 Q. No. Does Mr. Boe work in the 13 A. The evaluation of environmental
14 engineering department? 14 compliance is continual. There are many
15 A. No. 15 documents, um -- that relate to consideration
16 Q. Does he keep his time? Does he have 16 of environmental aspects, whether it be the EAs
17 to keep time? 17 that were prepared, the reconnaissance reports
18 A. Oh, yes. 18 that were done in relationship, the
19 MR. BRUNO: 19 reevaluation study as included in the LCA, it's
20 We call for the production of his 20 also included in the discussions of CWPPRA. So
21 billing records for this time period, 21 that there are a number of things.
22 Robin. 22 Environmental consideration is continual -- is
23 MR. SMITH: 23 constantly being evaluated.
24 There's not going to be any 24 Q. Are there any other documents similar
25 production of documents. The 25 to the document prepared in 2005 with regard to
17 (Pages 62 to 65)
10/2/2008
Page 66 Page 68
1 ACM reevaluation of MRGO, the LCA, in which 1 MR. SMITH:
2 other programs or other events -- 2 We've produced a few other
3 MR. SMITH: 3 documents, though.
4 Let her finish. 4 MR. BRUNO:
5 THE WITNESS: 5 I know you have.
6 Sorry. 6 EXAMINATION BY MS. GILBERT:
7 EXAMINATION BY MS. GILBERT: 7 Q. I'm going to give you a document
8 Q. -- precipitated an evaluation of the 8 that's been premarked as Exhibit 16.
9 Corps' satisfactory compliance with NEPA? 9 (Exhibit 16 was marked for
10 MR. SMITH: 10 identification and is attached hereto.)
11 Objection as to form. Vague. 11 MR. SMITH:
12 "Similar to." 12 Did you say there was just one
13 A. I'm not aware. 13 more question?
15 Q. So in the thirty years between the 15 Uh-huh.
16 time that the final environmental impact 16 EXAMINATION BY MS. GILBERT:
17 statement for the operation and maintenance of 17 Q. Mr. Saia, have you had an opportunity
18 the MRGO was prepared and 2005 when a 18 to review that E-mail?
19 recommendation that supplemental environmental 19 A. Just give me one more minute.
20 impact statements needed to be prepared, are 20 Okay.
21 you aware of any other time that anybody within 21 Q. Mr. Saia, are you aware of any action
22 the Corps questioned the Corps' satisfactory 22 that the Corps undertook in or around 2005 in
23 compliance with them? 23 response to the information contained in these
24 MR. SMITH: 24 E-mails that we have marked previously as
25 Objection as to form. Misstates 25 Exhibits 15 -- 14 and 15?
Page 67 Page 69
1 the evidence. 1 MR. SMITH:
2 A. I'm not aware. 2 Objection as to form. Vague.
3 (Off the record.) 3 "Any action."
4 MS. GILBERT: 4 MS. GILBERT:
5 Do you want the put that on the 5 I haven't finished the question.
6 record, though? 6 EXAMINATION BY MS. GILBERT:
7 MR. BRUNO: 7 Q. Are you aware of any action that the
8 Yes. 8 Corps undertook in around 2005 in response to
9 MS. GILBERT: 9 the information contained in these E-mails with
10 You can take an opportunity to 10 response to NEPA compliance of the operation
11 put that on the record now if you 11 and maintenance of the MRGO?
12 want. 12 MR. SMITH:
13 MR. BRUNO: 13 Same objection.
14 Just in response to -- 14 A. I'm not aware.
15 (Off the record.) 15 EXAMINATION BY MS. GILBERT:
16 MR. BRUNO: 16 Q. And I've given you a document that's
17 Robin, can we just agree that the 17 been marked as Exhibit 16, and that is an
18 time records were not on the -- what 18 E-mail dated March 1st --
19 did we call it -- the repository? 19 MR. SMITH:
20 MR. SMITH: 20 Which one is the last question?
21 We haven't produced the time 21 I thought you said you had one more
22 records for Richard Boe or anyone 22 question.
23 else. 23 EXAMINATION BY MS. GILBERT:
24 MR. BRUNO: 24 Q. -- 2007. And my question is the same:
25 All right. 25 As of March 1st, 2007, are you aware of any
18 (Pages 66 to 69)
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1 action that the Corps undertook with regard to 1 REPORTER'S CERTIFICATE
2 NEPA compliance of the operation and 2 I, JOSEPH A. FAIRBANKS, JR., CCR, RPR,
3 maintenance of the MRGO? 3 Certified Court Reporter in and for the State
4 A. I'm not aware. 4 of Louisiana, do hereby certify that the
5 Q. Okay. I have no further questions. 5 aforementioned witness, after having been first
6 MR. SMITH: 6 duly sworn by me to testify to the truth, did
7 Would you certify that for the 7 testify as hereinabove set forth;
8 record, please? 8 That said deposition was taken by me
9 9 in computer shorthand and thereafter
10 10 transcribed under my supervision, and is a true
11 11 and correct transcription to the best of my
12 12 ability and understanding.
13 13 I further certify that I am not of
14 14 counsel, nor related to counsel or the parties
15 15 hereto, and am in no way interested in the
16 16 result of said cause.
17 17
18 18
19 19
20 20
21 21
22 22
23 23 ____________________________________
24 24 JOSEPH A. FAIRBANKS, JR., CCR, RPR
25 25 CERTIFIED COURT REPORTER #75005
Page 71
1 WITNESS' CERTIFICATE
2
3 I, JOHN SAIA, do hereby certify
4 that the foregoing testimony was given by me,
5 and that the transcription of said testimony,
6 with corrections and/or changes, if any, is
7 true and correct as given by me on the
8 aforementioned date.
9
10 ______________ _________________________
11 DATE SIGNED JOHN SAIA
12
13 _______ Signed with corrections as noted.
14
15 _______ Signed with no corrections noted.
16
17
18
19
20
21
22
23
24
25 DATE TAKEN: October 2nd, 2008
19 (Pages 70 to 72)
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SAIA (VOL III), JOHN

IN RE: KATRINA CANAL BREACHES CIVIL ACTION

Johns Pendleton Court Reporters 800 562-1285

Johns Pendleton Court Reporters 800 562-1285

Johns Pendleton Court Reporters 800 562-1285

Johns Pendleton Court Reporters 800 562-1285

Johns Pendleton Court Reporters 800 562-1285

Johns Pendleton Court Reporters 800 562-1285

Johns Pendleton Court Reporters 800 562-1285

36:23 37:22 46:18 S signing 6:9 43:15 45:14,20,21 stream 48:23

Johns Pendleton Court Reporters 800 562-1285

Johns Pendleton Court Reporters 800 562-1285

2000 33:24 68 5:11

Johns Pendleton Court Reporters 800 562-1285

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