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EARLY J.

RUSH, III May 9, 2008

Page 1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

IN RE: KATRINA CANAL BREACHES CIVIL ACTION


CONSOLIDATED LITIGATION
NO. 05-4182
"K" (2)
PERTAINS TO: MRGO-ROBINSON JUDGE DUVAL
FILED IN: 05-4181, 05-4182, MAG. WILKINSON
05-5237, 05-6073, 05-6314,
05-6324, 05-6327, 05-6359,
06-0225, 06-0886, 06-1885,
06-2152, 06-2278, 06-2287,
06-2824, 06-4024, 06-4065,
06-4066, 06-4389, 06-4634,
06-4931, 06-5032, 06-5155,
06-5159, 06-5161, 06-5162,
06-5260, 06-5771, 06-5786,
06-5937, 07-0206, 07-0621,
07-1073, 07-1271, 07-1285

Videotaped Deposition of
EARLY J. RUSH III,
814 Kenilworth Parkway, Baton Rouge, Louisiana
70808, taken in the offices of the Russell B.
Long Federal Building, 777 Florida Street,
Suite 208, Baton Rouge, Louisiana 70801, on
Friday, the 9th day of May, 2008.

JOHNS PENDLETON COURT REPORTERS 800 562-1285


EARLY J. RUSH, III May 9, 2008
Page 2 Page 4
1 APPEARANCES:
2
1 STIPULATION
3 BRUNO LAW FIRM 2
(BY: JOSEPH M. BRUNO, ESQ.
4 FLORIAN BUCHLER, ESQ.) 3 It is stipulated and agreed by and between
855 Baronne Street
5 New Orleans, Louisiana 70113
4 counsel for the parties hereto
6
ATTORNEYS FOR PLAINTIFFS LIAISON
COUNSEL
5 that the deposition of the aforementioned
7 6 witness is hereby being taken under the
SHER, GARNER, CAHILL, RICHTER, KLEIN &
8 HILBERT
7 Federal Rules of Civil Procedure, for all
9
(BY: MEGAN DUPUY, ESQ.)
909 Poydras Street
8 purposes, in accordance with law;
Suite 2800 9 That the formalities of reading and
10 New Orleans, Louisiana 70112
ATTORNEYS FOR PLAINTIFFS 10 signing are specifically not waived;
11
12 MCCRANIE, SISTRUNK, ANZELMO, HARDY,
11 That the formalities of certification and
MAXWELL & MCDANIEL 12 filing are specifically waived;
13 (BY: GREG KOURY, ESQ.)
3445 North Causeway Blvd. 13 That all objections, save those as to the
14 Suite 800
Metairie, Louisiana 70002
14 form of the question and the responsiveness of
15 ATTORNEYS FOR THE BOARD OF 15 the answer, are hereby reserved until such
COMMISSIONERS FOR THE
16 ORLEANS LEVEE DISTRICT 16 time as this deposition, or any part thereof,
17
(ALSO PRESENT) 17 may be used or sought to be used in evidence.
18 DUPLASS, ZWAIN, BOURGEOIS, MORTON, 18
PFISTER & WEINSTOCK
19 (BY: JOSEPH E. BEARDEN, III, ESQ.) 19 * * * *
Suite 2900 20
20 3838 North Causeway Boulevard
Metairie, Louisiana 70002 21 ROGER D. JOHNS, RDR, CRR, Certified Court
21 ATTORNEYS FOR THE BOARD OF
COMMISSIONERS FOR THE LAKE BORGNE 22 Reporter for the State of Louisiana,
22 BASIN LEVEE DISTRICT
(ALSO PRESENT)
23 officiated in administering the oath to the
23 24 witness.
24
25 25
Page 3 Page 5
1 APPEARANCES CONTINUED: 1 INDEX
2
UNITED STATES DEPARTMENT OF JUSTICE 2
3 CIVIL DIVISION 3 PAGE
TORTS BRANCH
4 (BY: KEITH LIDDLE, ESQ. 4 Number 2................................... 49
RICHARD STONE, ESQ.) 5 Colonel Rush 1 and 2....................... 58
5 Post Office Box 888
Benjamin Franklin Station 6 PET-016856, 857, 858, 859, 860, 861....... 102
6 Washington, D.C. 20044 7 PET-016000000904, 905, and 906............ 103
ATTORNEYS FOR UNITED STATES
7 8 3......................................... 104
8 BURGLASS & TANKERSLEY 9 Number 4.................................. 104
(BY: LUCIE THORNTON, ESQ.)
9 5213 Airline Drive 10 PET-0111042 and 1043...................... 115
Metairie, Louisiana 70001 11 5......................................... 120
10 ATTORNEYS FOR JEFFERSON PARISH LEVEE
DISTRICT
12 6......................................... 120
11 13 VRG-3418 and 19........................... 120
12
VIDEOTAPED BY:
14 NOP-8-1532 to NOP-8-1596.................. 120
13 Ken Hart 15 NPM-36-302 in seriatim to 306............. 122
Hard Video of Louisiana
14
16 7......................................... 124
15 17 NRG-8-1008, 9, 10......................... 127
REPORTED BY:
16 ROGER D. JOHNS, RMR, CRR, RDR, CSR
18 AIN-179000001467 through 1490............. 128
Certified Court Reporter 19 Number 8.................................. 133
17 State of Louisiana 20 VRG-76-764 in seriatim to 773............. 147
18
19 21 VRG-76-765................................ 148
20 22 AFW-321-395 to 402........................ 148
21
22 23
23 24
24
25 25

2 (Pages 2 to 5)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
Page 6 Page 8
1 VIDEO OPERATOR: 1 Q. Okay. So you're familiar with the
2 This is the videotaped deposition 2 process?
3 of Early J. Rush III. This deposition 3 A. Yes.
4 is being taken at the offices of the 4 Q. All right. You know from time to
5 United States District Court located 5 time my learned opponents may interpose an
6 at 777 Florida Street, second floor, 6 objection to form or otherwise and, of course,
7 in Baton Rouge, Louisiana. Today's 7 that's to preserve for the record only the
8 date is March 9, 2008. The Court 8 objection. You still are required to answer
9 Reporter is Roger Johns with Johns 9 unless you are instructed by Counsel not to
10 Pendleton. 10 answer, which will provoke a nasty phone call
11 Would Counsel please introduce 11 with the Judge. But in any case, that's how
12 themselves. 12 we'll proceed. Okay?
13 MR. LIDDLE: 13 A. I understand.
14 Keith Liddle on behalf of the 14 Q. All right, sir. What is your
15 United States. 15 current employment?
16 MR. STONE: 16 A. Retired.
17 Richard Stone, United States. 17 Q. Good for you. And you were employed
18 MS. DUPUY: 18 by the United States Army Corps of Engineers,
19 Megan Dupuy on behalf of the 19 were you not?
20 Plaintiffs, just observing. 20 A. Yes, I was an officer in the U.S.
21 MS. THORNTON: 21 Army Corps of Engineers.
22 Lucie Thornton, for Jefferson 22 Q. So you were in the Army.
23 Parish, just observing. 23 A. Yes.
24 MR. KOURY: 24 Q. Okay. Why don't we just get a sense
25 Greg Koury, OLD. 25 of -- After you retired from the Army, did you
Page 7 Page 9
1 MR. BEARDEN: 1 have any employment?
2 Joseph Bearden, East Jefferson 2 A. Yes, I worked for about four years
3 Levee District, Lake Borgne Basin 3 here in Baton Rouge.
4 Levee District, just also present, not 4 Q. Okay. Well, let me learn just a
5 participating. 5 little bit about that. What did you do in
6 MR. BRUNO: 6 Baton Rouge after you retired?
7 And Joe Bruno, Plaintiffs Liaison 7 A. I was executive vice president of
8 Counsel. 8 Odom Offshore Surveys and we were involved in
9 VIDEO OPERATOR: 9 engineering support for the oil industry
10 Thank you. 10 offshore.
11 Would the Court Reporter please 11 Q. All right. Did that company have
12 swear in the witness. 12 any contracts with the Corps of Engineers?
13 EARLY J. RUSH III, 13 A. They had one contract associated
14 814 Kenilworth Parkway, Baton Rouge, Louisiana 14 with doing surveys along the condition of the
15 70808, after being duly sworn, did testify as 15 banks along the Mississippi River.
16 follows: 16 Q. Did you have a role in that?
17 EXAMINATION BY MR. BRUNO: 17 A. No.
18 Q. Colonel, good morning. 18 Q. And I should have made my question
19 A. Good morning. 19 perhaps more clear. By "role", I mean did you
20 Q. My name is Joseph Bruno as I 20 perform any of the work or services in
21 indicated before we started. We're here to 21 connection with the evaluation of the banks?
22 ask you a few questions today. 22 A. No.
23 Have you ever given a deposition 23 Q. Okay. Now, let's go backwards.
24 before? 24 Where did you graduate from college?
25 A. Yes. 25 A. I graduated from the U.S. Military

3 (Pages 6 to 9)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
Page 10 Page 12
1 Academy in 1953. I was commissioned as a 1 I worked there in the Facility Engineer
2 second lieutenant in the Army Corps of 2 Office; at that time it was called Post
3 Engineers. And I received a Bachelor of 3 Engineer. And again, it was a training type
4 Science degree, unspecified. 4 tour.
5 Q. Was it always your choice to be in 5 Q. What were you training to be or to
6 the Corps of Engineers? You always had that 6 do?
7 interest in engineering? 7 A. To function in the various functions
8 A. Yes, it was. 8 that the Corps of Engineers did.
9 Q. It was? And how does one -- You 9 Q. Okay. Well, we have come to learn
10 know, you're in the Army obviously. How does 10 that there are a variety of functions,
11 one get appointed to or assigned to the Corps 11 including engineering as well as operations,
12 of Engineers? Is that through an election 12 planning, real estate, and the like. Were you
13 process or are you selected for that work? 13 being trained for a particular area or
14 Help me understand that, if you don't mind. 14 specialty, I guess?
15 A. Cadets are allowed to pick their 15 A. Not at that time, no.
16 branch of service in the Army and at that time 16 Q. General training?
17 it was given out in accordance with your -- 17 A. It was a general type of training.
18 your cadet rank. 18 Q. How long in New Jersey?
19 Q. In other words, you would indicate 19 A. I was there for another year.
20 an interest in the Corps and by rank the slots 20 Q. One more year. Okay. Then from New
21 would be filled up? 21 Jersey where did you go?
22 A. Yes, there were a certain number of 22 A. I went to Princeton University to
23 slots that were allotted to the Corps of 23 graduate school, and I was there for a year;
24 Engineers at that time. We had 49 people that 24 and upon completion of that year I was awarded
25 went into the Corps of Engineers. 25 a Master of Science in engineering.
Page 11 Page 13
1 Q. All right. 1 Q. Okay. And from Princeton?
2 A. That was out of a class of 512. 2 A. I went back to Fort Belvor, Virginia
3 Q. Okay. Where did you work when you 3 to the Engineer School. This was the Engineer
4 first began your association with the Corps of 4 Officer Advanced Course. Again, a career type
5 Engineers? 5 of development and schooling for engineer
6 A. The first thing I did was go to the 6 officers.
7 Engineer Officer Basic Course at Fort Belvor, 7 Q. All right. Was that training in the
8 which all new engineer officers did at that 8 science of engineering or was it, rather, on
9 time, and then I was assigned to Korea for 9 the management side?
10 sixteen months where I served in three 10 A. Both. It was broad engineering as
11 different construction battalions. 11 well as management.
12 Q. How long were you in Korea? 12 Q. All right. After Virginia, sir,
13 A. Sixteen months. 13 where did you go?
14 Q. And when you returned, where did you 14 A. After Virginia I went to -- back to
15 go? 15 Fort Dix.
16 A. I went to the New York District in 16 Q. Okay.
17 Manhattan. That was a training type tour. 17 A. And there I was with an engineer
18 Q. Okay. 18 construction battalion for two years and I was
19 A. And I was called a military 19 a company commander and the operations
20 assistant. 20 officer, the S-3 as we were called.
21 Q. How long did you stay in New York? 21 Q. All right. So where did you go from
22 A. A little over a year. 22 your second stint in New Jersey to?
23 Q. One year. Okay. And then from New 23 A. I went to Hawaii.
24 York where did you go? 24 Q. Hawaii. Wow. You went all over the
25 A. I went to Fort Dix, New Jersey, and 25 place.

4 (Pages 10 to 13)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
Page 14 Page 16
1 A. Well, a little bit. 1 and I was the year man, so to speak, for
2 Q. What did you do in -- 2 development of the 1973 military construction
3 A. In Hawaii, initially I was at Fort 3 program for the Army. That was two years.
4 Shafter, which was the Headquarters for U.S. 4 Q. And then from there?
5 Army Pacific, and I was with the Post Engineer 5 A. There, I went to the Army War
6 type facility or organization there. Then I 6 College at Carlisle, Pennsylvania. Again, an
7 was selected to take over as the engineer at 7 Army school for senior officers. And I was
8 Tripler Army Hospital. The first job was like 8 there for one year, graduated in 1973.
9 about six months, I think; and then I was the 9 Q. Okay. And from there?
10 engineer at Tripler for about two and a half 10 A. From there I went back to Washington
11 years. 11 D.C. area, and at that time I was assigned to
12 Q. Okay. From Hawaii? 12 the Civil Works Directorate at the Engineer
13 A. I went to Fort Levenworth, Kansas, 13 Headquarters in D.C., and I was there for two
14 to the Commanding General Staff College, which 14 years.
15 again was another military school; and I was 15 Q. Now, the Civil Works, that's the
16 there for one year. 16 civil side of the Army as it relates to the
17 Q. Okay. And then from Levenworth? 17 United States Army Corps of Engineers
18 A. Well, from Levenworth I went to the 18 construction projects, is it not?
19 U.S. Military Academy and I taught in the 19 A. Mission, yes. That's the other
20 Engineering Department there for four years. 20 mission of -- other than military type
21 That was from 1964 to 19- -- or 1965 to 1969. 21 construction.
22 Q. What did you teach? 22 Q. And how closely did you work with
23 A. I taught engineering. 23 the head of the Civil Works Division? Did you
24 Q. Was it just broad engineering or was 24 interact with him?
25 it structural? 25 A. Yes, I did.
Page 15 Page 17
1 A. It was structural engineering, steel 1 Q. Did you have an opportunity to
2 design, and a little bit into concrete and 2 understand how the head of the Civil Works
3 soils. 3 interacted with Congress?
4 Q. You did some soils work? 4 A. I saw that operation and I dealt
5 A. A little bit, yeah. 5 with Congress myself at that time.
6 Q. A little bit soils? 6 Q. All right. In this case, as you
7 A. Just a little bit. 7 know -- Well, let me ask you this question.
8 Q. Did you teach anything about 8 Do you really have any understanding about
9 under-seepage and its potential dangers? 9 what this litigation regards? Has anybody
10 A. No. 10 told you what this case is about?
11 Q. Okay. So from your teaching 11 A. I understand that now we're kind of
12 assignment where did you go? 12 focusing on the Mississippi River Gulf Outlet
13 A. I went to Vietnam. 13 --
14 Q. All right. 14 Q. All right.
15 A. Again, I was in the facilities 15 A. -- in the New Orleans District.
16 management type of operation for seven months 16 Q. Okay. We'll come back to that in a
17 there at a headquarters and then I went to 17 minute. Let me just finish out your resume.
18 command an engineer construction battalion for 18 After you left Washington in the Civil Works,
19 six months, building roads and bridges in the 19 where did you go?
20 Delta region of Vietnam. 20 A. I went to New Orleans.
21 Q. All right. After you left Vietnam 21 Q. You were in New Orleans.
22 where did you go? 22 A. And I was there from 1975 -- August
23 A. From Vietnam I came back to the 23 of '75 until August of '78.
24 States and I was assigned in Washington, D.C. 24 Q. Okay. And you came in after the
25 on the Army staff in the Logistics Department 25 General; right?

5 (Pages 14 to 17)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
Page 18 Page 20
1 A. After General Heiberg. 1 A. I believe it was filed after I got
2 Q. I mean currently the General. 2 there.
3 A. Yes. 3 Q. All right. General Heiberg
4 Q. He wasn't a General -- 4 indicated to us that it was that litigation
5 A. He was a Colonel and he had to leave 5 that caused the Corps to make the switch from
6 the District because he had been selected to 6 the barrier plan to the High Level Plan. My
7 be a Brigadier General and they needed a 7 first question to you is, and I am just going
8 replacement, and I went to replace him. 8 to ask you to assume that what I have told you
9 Q. All right. Let me just round out 9 is true unless you know it to be false -- And
10 then your career after you left New Orleans 10 I guess before I even go there, let me ask you
11 until your retirement. 11 if you know that to be true.
12 A. That's getting close. 12 MR. LIDDLE:
13 Q. Good. That's good. You have been 13 Objection, vague, ambiguous. I'm
14 around. 14 also going to object at this point, a
15 A. I went to Fort Polk, Louisiana and I 15 continuous objection if that's all
16 was the facilities engineer there; and I 16 right with you, all --
17 retired from that job in February 1st of 1980. 17 MR. BRUNO:
18 Q. Okay. So you retired in '80? 18 Oh, yes, absolutely. You know
19 A. Yes, I did. 19 that.
20 Q. Okay. Let's see where we start. 20 MR. LIDDLE:
21 When you arrived in New Orleans, what did you 21 -- questions -- to all questions
22 do to get some understanding of the projects 22 dealing --
23 that the New Orleans District office was 23 MR. BRUNO:
24 managing? 24 About discretion --
25 A. Well, after I got there I met with 25 MR. LIDDLE:
Page 19 Page 21
1 my staff and was briefed on all of the things 1 -- with the hurricane protection
2 that were going on. I did have a little bit 2 systems.
3 of a briefing from then Colonel Heiberg. 3 MR. BRUNO:
4 Before I went down to New Orleans, I had gone 4 Right.
5 around and talked with some of the 5 MR. LIDDLE:
6 congressional folks from Louisiana that were 6 That's no longer part of this.
7 in Washington as a courtesy type call. 7 MR. BRUNO:
8 Q. All right. Were you briefed about 8 And as I told Richard, I
9 the MRGO? 9 understand where you're coming from,
10 A. No. Not that I recall. 10 but we're about to be hit with a
11 Q. How about the Lake Pontchartrain and 11 motion for summary judgment on
12 Vicinity Hurricane Protection Project? 12 discretionary function and so I
13 A. Yes. 13 believe it's relevant to the issue of
14 Q. All right. What information did you 14 the breadth of the discretion that the
15 gather about the status of that project when 15 Corps believes it has with regard to
16 you took the helm of the District office there 16 any particular project. So without
17 in New Orleans? 17 arguing it, I recognize that you are
18 A. Well, the work was going on relative 18 interposing an objection to any and
19 to different components of the project, and 19 all questions that relate in any way
20 the environmental impact statement related to 20 to the hurricane protection project.
21 that project had been filed and ultimately we 21 But that's why I am asking. Just as a
22 got into litigation. 22 courtesy to you.
23 Q. Was the litigation filed when you 23 MR. LIDDLE:
24 got there, do you remember, or was it filed 24 Okay. And I'll also object for
25 after you got there? 25 this particular question vague and

6 (Pages 18 to 21)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
Page 22 Page 24
1 ambiguous. 1 Orleans and its environs and to keep the surge
2 MR. BRUNO: 2 from a major hurricane from getting into Lake
3 Well, I'd be mad at you if you 3 Pontchartrain.
4 left that out. 4 Q. All right. In other words, when a
5 MR. LIDDLE: 5 hurricane approaches, it's got to approach
6 That doesn't surprise you. 6 from the Gulf; correct?
7 EXAMINATION BY MR. BRUNO: 7 A. It can.
8 Q. We have a contest to see how many 8 Q. Okay. And that would push water
9 objections they can make to any one particular 9 landward which necessarily increases the level
10 question. I think the most they have gotten 10 of the water; we call that surge; correct?
11 up to is about six. So we're nowhere near the 11 A. Yes.
12 record. 12 Q. Okay. And when that happens, of
13 But anyway, my first question to 13 course, as a natural -- because you're pushing
14 you, sir, is it true or not true, as far as 14 it in to land, it's going to go into Lake
15 you know -- and if you don't know, it's okay 15 Borgne; and from Lake Borgne into Lake
16 -- that the reason why the United States Army 16 Pontchartrain; and obviously from Lake
17 Corps of Engineers switched from what is known 17 Pontchartrain into the city?
18 as the barrier plan to the High Level Plan was 18 MR. LIDDLE:
19 because of this environmental litigation that 19 Objection.
20 was filed regarding the environmental impact 20 EXAMINATION BY MR. BRUNO:
21 study? 21 Q. Is that reasonably accurate?
22 MR. LIDDLE: 22 MR. LIDDLE:
23 The same objection. 23 Objection, vague, ambiguous.
24 THE WITNESS: 24 THE WITNESS:
25 The only thing I can say is that 25 Could you repeat the question?
Page 23 Page 25
1 in December of 1977, the Federal Judge 1 EXAMINATION BY MR. BRUNO:
2 said that the Corps had to stop the 2 Q. Yes. I am just trying to get -- I
3 hurricane protection project, all 3 am just trying for the record to establish the
4 aspects of it. 4 context of barrier. A hurricane comes, it
5 EXAMINATION BY MR. BRUNO: 5 pushes water landward; the water, as it goes
6 Q. Right. 6 landward, is going to go into Lake Borgne; and
7 A. However, in the early part of 1978 7 from Lake Borgne into Lake Pontchartrain; and
8 we were allowed to continue work on levee type 8 from Lake Pontchartrain into the city.
9 construction only. But nothing related to the 9 MR. LIDDLE:
10 barriers themselves. 10 Objection, vague, ambiguous.
11 Q. And for the record, so that one who 11 THE WITNESS:
12 may not be familiar with barrier, High Level, 12 The barriers were to prevent
13 would you explain for us what was the barrier 13 water from getting into Lake
14 plan? 14 Pontchartrain.
15 A. Well, the barrier plan was a 15 EXAMINATION BY MR. BRUNO:
16 combination of structures and levees around 16 Q. Exactly. And that's where I was
17 Lake Pontchartrain and the City of New Orleans 17 going.
18 and the barriers themselves were a structure 18 The expectation was if you put a
19 at the Rigolets and Chef Menteur and at 19 barrier there, you keep the surge out of the
20 Seabrook. 20 lake and thereby you decrease the level of the
21 Q. Okay. Could you explain for us what 21 surge in the lake in a hurricane event; is
22 was intended -- what the role of the barrier 22 that right?
23 at the Rigolets was to be in the context of 23 A. Yes.
24 hurricane protection? 24 Q. Okay. And the barrier plan had
25 A. It was to protect the City of New 25 components that required the building of

7 (Pages 22 to 25)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
Page 26 Page 28
1 levees, and that's what your reference was to 1 sir, if you wanted to get the authority to do
2 what you could continue to do. Right? 2 a study of other types of protection?
3 A. Yes. 3 A. It would have needed the further
4 Q. Okay. The barrier component was the 4 approval from higher headquarters and from the
5 building of these barriers in the marsh at the 5 Congress.
6 Rigolets; is that right? 6 Q. Okay. And, in fact, you so
7 A. Say that again? 7 testified, did you not, when asked that very
8 Q. The barrier was the building of 8 question by Senator John Breaux?
9 these structures, if you will, in the marsh at 9 A. I don't remember testifying.
10 the Rigolets? 10 Q. Okay. I can't believe it. You had
11 A. Rigolets and Chef Menteur. 11 such an excellent memory for everything else,
12 Q. Right. Okay. So that's the part 12 I thought --
13 that the Judge stopped. 13 A. Well, would you be more specific
14 A. Yes. 14 about the testifying?
15 Q. Okay. Now, what did you all do, if 15 Q. Well, did you -- Do you recall
16 anything, in response to the order to stop 16 appearing before the Congress of the United
17 building the barrier? 17 States?
18 MR. LIDDLE: 18 A. No.
19 Objection, vague, ambiguous. 19 Q. At all?
20 THE WITNESS: 20 A. The Congress? No.
21 Initially we stopped work. 21 Q. A subcommittee?
22 EXAMINATION BY MR. BRUNO: 22 A. A subcommittee, yes.
23 Q. Okay. Then did you do anything 23 Q. Okay. Well, that would be -- That's
24 else? 24 fine. Fair enough. Fair enough.
25 MR. LIDDLE: 25 Did you recognize that that
Page 27 Page 29
1 Objection, vague, ambiguous. 1 committee was representing the Congress of the
2 THE WITNESS: 2 United States?
3 After we got the go ahead to 3 A. Yes, I did.
4 continue on the levee raising, we did 4 Q. Okay. But you make a distinction
5 that. 5 between the committee and the Congress?
6 EXAMINATION BY MR. BRUNO: 6 A. Well, yes.
7 Q. You did levees. All right. Did you 7 Q. That's fair. I just wanted it just
8 not also conduct some evaluations or studies 8 for the record so that we, you and I, get on
9 about other methods of protection that could 9 the same page.
10 be put in place of the barrier plan? 10 All right. Did you testify before
11 A. Not that I recall at that time. 11 a committee of the Congress of the United
12 Q. Okay. At any time until you left? 12 States more than once in your career?
13 A. That's what I am saying. 13 A. Yes.
14 Q. Oh, I'm sorry. Okay. So when you 14 Q. All right. How many times?
15 answered that question, you were saying up 15 A. Well, I don't recall how many
16 until you left in '78. 16 times. Some of those were associated with the
17 A. Yes. 17 military construction aspect when I was
18 Q. All right. As the District 18 working on the military construction program.
19 Commander, what authority, if any, did you 19 Q. All right. How many times did you
20 have to direct that District office to 20 testify before a committee or subcommittee of
21 evaluate other potential means of protection? 21 either house of the Congress while serving as
22 That is, other than the barrier plan. 22 the Commander of the New Orleans District
23 A. I had no authority to do that at the 23 office?
24 time. 24 A. I only recall the one time.
25 Q. Okay. Where would you have gone, 25 Q. The one time.

8 (Pages 26 to 29)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
Page 30 Page 32
1 A. In 1978. 1 versus the if you remember whether it was true
2 Q. Do you know, sir, why you were 2 or false. When you were there, did you have
3 called to testify -- 3 the opinion, I think you have already
4 MR. LIDDLE: 4 expressed this, that you had to -- the
5 Objection, vague, ambiguous. 5 District, the Corps would have to go back to
6 EXAMINATION BY MR. BRUNO: 6 Congress to get authorization in order to
7 Q. -- before that subcommittee? 7 switch from the barrier plan to the High Level
8 A. Just that it was related to the 8 Plan.
9 hurricane protection project. 9 A. I didn't have to look at it that way
10 Q. All right. How did the request -- 10 during -- during the time that I was there.
11 Well, let me ask you, was it a request for you 11 Q. All right. But you've already told
12 to testify or did you see an opportunity to 12 me this morning that it was -- it is your view
13 testify and elect to -- 13 today that if you wanted to study alternate
14 A. I don't remember how that came 14 methods of providing hurricane protection,
15 about, frankly. 15 that you would have to get authorization;
16 Q. All right. Do you remember what the 16 right?
17 name of the committee or subcommittee was? 17 A. I believe that, yes.
18 A. No, I don't. 18 Q. All right. Can you share with me
19 Q. Okay. Do you remember what the 19 the process? In other words, what would one
20 subject matter was? 20 do as the District Commander if one had
21 A. The hurricane protection project. 21 reached the conclusion, "Well, look, I feel
22 Q. All right. And do you know why 22 the need to study a different plan"? How
23 there was an investigation? 23 would you initiate that process? A letter, a
24 MR. LIDDLE: 24 phone call? And to whom would these --
25 Objection, vague, ambiguous. 25 A. Usually the process would be
Page 31 Page 33
1 THE WITNESS: 1 initiated by the local entities, such as the
2 No, I don't. 2 state for the local governmental agencies or
3 EXAMINATION BY MR. BRUNO: 3 others that had an interest in doing it
4 Q. All right. Do you -- And I may have 4 another way.
5 asked you this. I don't know. Do you 5 Q. Well, I've heard that before, but I
6 remember your testimony? I don't know if I 6 continually get confused by that, because I am
7 asked you that or not. 7 trying to know what is it that makes the Corps
8 A. Not in specifics, no. 8 do something? In other words, I could knock
9 Q. All right. But do you generally 9 on your door, but you don't have to answer
10 remember being asked whether or not you had 10 it. What is it that the local entities do
11 the opinion that the Corps would have to go 11 that persuades the Corps to respond?
12 back to Congress to seek an authorization to 12 MR. LIDDLE:
13 switch from the barrier plan to some other 13 Objection, vague, ambiguous.
14 plan? 14 EXAMINATION BY MR. BRUNO:
15 A. I don't recall being asked that. 15 Q. And I know that's a broad and
16 Q. Okay. Do you recall whether or not 16 general question, but I don't know how to ask
17 that was your opinion when you served as the 17 it any other way at this point.
18 Commander of the District office? 18 MR. LIDDLE:
19 A. No, I did not at that time. 19 Objection, vague, ambiguous.
20 Q. You don't remember, or it wasn't 20 THE WITNESS:
21 your opinion? 21 The local entities would approach
22 A. My opinion is that -- Say the 22 their Congressional representatives
23 question again. 23 and by that avenue such a process
24 Q. I'm sorry. I don't mean to confuse 24 could be initiated.
25 you, but this -- There's the memory part 25 EXAMINATION BY MR. BRUNO:

9 (Pages 30 to 33)
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EARLY J. RUSH, III May 9, 2008
Page 34 Page 36
1 Q. All right. Well, and if they -- so 1 Q. Okay. Well, I know this is not
2 that the Congressmen or the Senator could do 2 within your time frame. Okay? But I just
3 something to move the Corps to do something. 3 want to use this as an example because I am
4 Is that what you're saying to me? 4 trying to understand this process, and I am
5 A. It could ask the Corps to do 5 having a really tough time understanding. I
6 something and -- 6 have here something that's entitled "The
7 Q. All right. Now, could a -- if a 7 Mississippi River Gulf Outlet St. Bernard
8 congressman, a lone congressman, if that lone 8 Parish Louisiana Bank Erosion Reconnaissance
9 congressman wanted the Corps to do something, 9 Report" dated February, 1988. Okay?
10 what would he do -- 10 Have you ever seen this document?
11 MR. LIDDLE: 11 A. No.
12 Objection. 12 Q. I didn't think so. But you are
13 EXAMINATION BY MR. BRUNO: 13 familiar with reconnaissance reports, are you
14 Q. -- to communicate to the Corps that 14 not, as the District Commander? Not this one,
15 he wanted something done? 15 but just the idea of a reconnaissance.
16 MR. LIDDLE: 16 A. I don't recall that term at all.
17 Objection, vague, ambiguous. 17 Q. All right. At page 2 of this
18 THE WITNESS: 18 document it says "Study authority" and it says
19 I don't know. 19 "The study was authorized by resolution
20 EXAMINATION BY MR. BRUNO: 20 adopted 23 September, 1982 by the Committee on
21 Q. Okay. If you received a letter from 21 Public Works and Transportation of the United
22 Congressman Livingston asking you to evaluate 22 States House of Representatives at the request
23 an alternate plan for hurricane protection, 23 of Representative Robert Livingston, Jr.,
24 that is, other than barrier, would that be 24 Louisiana First Congressional District. The
25 sufficient for you to act? 25 resolution is as follows", and it says
Page 35 Page 37
1 MR. LIDDLE: 1 "Resolved by the Committee on Public Works
2 Objection, vague, ambiguous. 2 and Transportation, the House of
3 THE WITNESS: 3 Representatives of the United States, that the
4 No, I don't think so. 4 Board of Engineers for Rivers and Harbors is
5 EXAMINATION BY MR. BRUNO: 5 hereby requested to review the report of the
6 Q. Okay. Well, is there some written 6 Chief of the Engineers on the Mississippi
7 procedure within the Corps that I could look 7 River Gulf Outlet Louisiana published as House
8 at that would allow me to understand, you 8 document 245, 82nd Congress, first session and
9 know, what would be the process that would -- 9 other pertinent reports, with a view to
10 that I would utilize as a citizen to persuade 10 determining whether, in light of extensive
11 the Corps to do something, anything? 11 erosion which has been occurring in St.
12 A. I don't know whether that exists or 12 Bernard Parish along the unleveed banks of the
13 not at this stage. 13 Gulf Outlet channel, any modifications to the
14 Q. All right. In fact, sir, while you 14 recommendations contained therein are
15 were the Commander what kinds of things would 15 advisable at this time with reference to the
16 you have responded to that would have 16 feasibility of bank protection measures."
17 originated from Congressmen, Senators, the 17 Now, I know that you don't know
18 Congress or subcommittees thereof? 18 anything about this document. But I am just
19 MR. LIDDLE: 19 curious to know about the process. Here we
20 Objection, vague, ambiguous 20 have not an act of Congress, but we have a
21 EXAMINATION BY MR. BRUNO: 21 resolution by a committee on the house side
22 Q. Can you give me some sense of that? 22 that says go do something. What I am curious
23 A. The only way that I could respond is 23 to know is would this be enough for you to act
24 if I had been given funds in order to make a 24 in your role as District Commander?
25 study of some sort. 25 MR. LIDDLE:

10 (Pages 34 to 37)
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EARLY J. RUSH, III May 9, 2008
Page 38 Page 40
1 Objection, vague, ambiguous. 1 We await the funding.
2 THE WITNESS: 2 EXAMINATION BY MR. BRUNO:
3 It would give authority to make 3 Q. And how are you told that you have
4 the study. 4 funding? How does that information get
5 EXAMINATION BY MR. BRUNO: 5 communicated to you?
6 Q. Okay. But you still need funding. 6 A. Comes in the Federal budget.
7 A. Yes. 7 Q. Okay. And how does that trickle
8 Q. This doesn't give you funding, does 8 down to the District Commander's office?
9 it? 9 A. Through channels from the Chief's
10 A. No. 10 office through the Division office to the
11 MR. LIDDLE: 11 District.
12 Objection, vague, ambiguous. 12 Q. All right. Well, how do you get --
13 EXAMINATION BY MR. BRUNO: 13 Do you get a memo that says "Colonel Rush,
14 Q. Before I go further, while you were 14 you're now authorized to conduct this study"
15 the District Commander of the New Orleans 15 and then there's a description of the study?
16 District, do you recall having received 16 Is that how it works?
17 resolutions like this directing you to study 17 A. I don't remember the mechanism
18 anything? 18 itself as to the, you know, paperwork
19 A. I don't remember any specific ones, 19 associated with it.
20 no. 20 Q. All right. But you -- And you can
21 MR. LIDDLE: 21 recall no -- there's no regulations or written
22 Objection, vague, ambiguous. 22 procedures that govern this process, right, at
23 EXAMINATION BY MR. BRUNO: 23 least that you --
24 Q. Did you initiate any studies during 24 A. I don't remember them.
25 your tenure as the District Commander? 25 Q. Well, you were in the Civil Works
Page 39 Page 41
1 A. Probably did, but I don't recall 1 Division for two years and you had a lot of
2 them. 2 interaction with Congress.
3 Q. That's fine. Again, I am not so 3 MR. LIDDLE:
4 much concerned about the specific evaluation. 4 Objection, vague, ambiguous.
5 I am more concerned about the process. I am 5 EXAMINATION BY MR. BRUNO:
6 trying to get some handle on what this process 6 Q. Right?
7 is. So am I correct in drawing the conclusion 7 A. Specific Congressmen, yes.
8 that you would, as the District Chief, respond 8 Q. All right. Which specific
9 to a resolution by a committee of the House? 9 Congressmen did you interact with?
10 At least that much? Would you respond to this 10 A. My responsibilities were within the
11 resolution? 11 Missouri River Division and the North Central
12 MR. LIDDLE: 12 Division.
13 Objection, vague. 13 Q. Okay. Was there a person assigned
14 THE WITNESS: 14 to the Lower Mississippi River Valley
15 If funding were available, yes. 15 Division?
16 MR. LIDDLE: 16 A. Yes, there was.
17 Objection, vague, ambiguous. 17 Q. All right. So there would have been
18 EXAMINATION BY MR. BRUNO: 18 a person who would have been responsible for
19 Q. All right. So what do you -- Is it 19 the Congressmen and Senators within that Lower
20 your job, once you get a resolution like this, 20 Mississippi Valley Division; right?
21 is it your job to go get the funding or do you 21 A. Interaction, if required, yes. In
22 simply await the funding? 22 support of the Division Engineer and the
23 MR. LIDDLE: 23 Districts wherever, you know, the Congressmen
24 Objection, vague, ambiguous. 24 were responsible.
25 THE WITNESS: 25 Q. All right. So that if I am a

11 (Pages 38 to 41)
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EARLY J. RUSH, III May 9, 2008
Page 42 Page 44
1 Congressman from Mississippi, I would know who 1 politics were played, you knew how the process
2 the go-to guy was in the Civil Works Division; 2 worked between -- That is, as it relates to
3 right? 3 the connection between the Congress and the
4 A. They usually would, yes. 4 Corps of Engineers, you were up there, you saw
5 Q. And likewise, you, when you 5 it work, and you brought that experience to
6 communicated with these folks, they would know 6 the office of the District Commander in New
7 who you were and what your role was with 7 Orleans; right?
8 regard to the Corps of Engineers' work 8 A. I knew that I would be interacting
9 projects? 9 with the Congressional delegations.
10 A. Yes. 10 MR. LIDDLE:
11 Q. Okay. I see. I got you. That 11 Objection, vague, ambiguous
12 helps me. So obviously -- Well, did you, when 12 compound, your last question.
13 you were in the Civil Works, do you recall 13 EXAMINATION BY MR. BRUNO:
14 some of these types of resolutions being sent 14 Q. All right. Sir, when you received
15 to the Corps of Engineers with regard to that 15 notice of the injunction, what did you
16 division -- 16 appreciate your obligation, if any -- I am not
17 A. No, I don't. 17 suggesting you had an obligation -- was with
18 Q. -- to study think or study that? 18 regard to communicating with the Congress
19 MR. LIDDLE: 19 about that fact?
20 Objection, vague, ambiguous. 20 MR. LIDDLE:
21 THE WITNESS: 21 Objection, vague, ambiguous.
22 No, I don't. 22 THE WITNESS:
23 EXAMINATION BY MR. BRUNO: 23 I don't recall that I had any
24 Q. All right. While you were at the 24 obligation at that time to do that.
25 Civil Works Division, and I just have to ask 25 EXAMINATION BY MR. BRUNO:
Page 43 Page 45
1 this, I know that you had nothing to do with 1 Q. Fair enough. Did you in fact
2 Lower Mississippi River Valley, did you have 2 communicate with the Congress about the fact
3 any information about issues related to the 3 of the injunction?
4 MRGO? 4 A. I don't know whether I did or not.
5 A. No. 5 Q. All right. What was your
6 Q. Okay. How about the Lake 6 understanding of your obligation relative to
7 Pontchartrain and Vicinity Hurricane 7 the Civil Works Division? Did you feel
8 Protection Project? 8 compelled to report the fact of the injunction
9 A. No. 9 to them?
10 Q. Okay. But certainly when you became 10 MR. LIDDLE:
11 the Commander of the District office in New 11 Objection.
12 Orleans you came armed with the experience 12 THE WITNESS:
13 that you had obtained working in that position 13 Most certainly was reported up
14 in Civil Works; right? 14 the line, the result of the court
15 MR. LIDDLE: 15 case.
16 Objection, vague, ambiguous. 16 EXAMINATION BY MR. BRUNO:
17 THE WITNESS: 17 Q. I understand. So that you would
18 I was prepared. 18 have reported to whom?
19 EXAMINATION BY MR. BRUNO: 19 A. Division Engineer.
20 Q. You were prepared. You knew the 20 Q. Okay. And obviously he did whatever
21 game, if you will? 21 he had to do?
22 MR. LIDDLE: 22 MR. LIDDLE:
23 Objection, vague, ambiguous. 23 Objection, vague, ambiguous.
24 EXAMINATION BY MR. BRUNO: 24 THE WITNESS:
25 Q. Didn't you? You knew how the 25 I assume.

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Page 46 Page 48
1 EXAMINATION BY MR. BRUNO: 1 A. I don't know what you mean by
2 Q. Now, do you know what he did? 2 "completed".
3 A. No. 3 Q. Well, let me ask you this way. I
4 Q. Would you have an expectation, sir, 4 have learned through a variety of depositions
5 that the Corps of Engineers would have 5 that we have been taking in the case that your
6 reported the fact of the injunction to the 6 District office is divided into a series of
7 Congress? 7 branches or divisions or departments. I have
8 MR. LIDDLE: 8 forgot what they're called. There's an
9 Objection, vague, ambiguous. 9 Engineering Group, there's an Operations
10 THE WITNESS: 10 Group, there's a Project Planning Group, and
11 I don't know whether they did or 11 each of these groups has obviously varying
12 not. 12 responsibilities, but it was my understanding
13 EXAMINATION BY MR. BRUNO: 13 that projects that hadn't yet been completed
14 Q. No, no, that wasn't my question. I 14 would be within the control of the Projects
15 said would you have had an expectation that 15 Group. Once they were completed, then they
16 the Corps would have reported the fact of the 16 were turned over to the Operations Group for
17 injunction to the Congress? 17 maintenance and operation. That's what I mean
18 MR. LIDDLE: 18 by "completed". Does that make any sense?
19 Objection, vague, ambiguous. 19 A. Yes, I believe so.
20 EXAMINATION BY MR. BRUNO: 20 Q. All right. And let me just show you
21 Q. That's the question. 21 what I am using and what I have used in the
22 A. I don't know. 22 past, and again I know this is not pertinent
23 Q. Now, we have already established as 23 to your time frame, but it's all I got. It's
24 the District Commander you were responsible 24 an organizational chart that was in existence
25 for certain projects that were completed and 25 when Colonel Wagenaar was the Commander, which
Page 47 Page 49
1 certain projects that were in construction. 1 is 2005, way after your time. Okay?
2 Right? 2 A. Way after.
3 A. Yes. 3 Q. And I guess, sir, what I want to
4 Q. Okay. One of those projects was the 4 learn is whether or not the way the office was
5 MRGO; right? 5 organized in '05 looked anything like the way
6 A. Yes. 6 your office was organized when you were there
7 Q. And, of course, you may not have 7 between '75 and '78.
8 been briefed, but while serving as the 8 A. Okay.
9 District Commander you learned of its 9 Q. So I am going to show you -- and
10 existence? Isn't that true? 10 this is a document which we have previously
11 A. Yes. 11 marked and attached to the Clay deposition as
12 Q. Okay. The Corps is responsible for 12 Number 2. Take a look at that and it's a good
13 flood control projects as well as navigation 13 time to take a break so you can have a moment
14 projects; right? 14 to look at that.
15 A. Yes. 15 VIDEO OPERATOR:
16 Q. Okay. I want to talk about 16 Off the record.
17 navigation projects in particular. Okay? Do 17 (Recess.)
18 you recall whether or not the MRGO was a 18 VIDEO OPERATOR:
19 navigation project or some other kind of 19 Back on the record.
20 project? 20 EXAMINATION BY MR. BRUNO:
21 A. Navigation. 21 Q. All right, Colonel. You had a
22 Q. Navigation. All right. And do you 22 chance to briefly look at this. Not study it
23 recall, sir, during your tenure whether or not 23 in detail, I know.
24 it was considered by your office to have been 24 A. Right.
25 a completed project? When you got there. 25 Q. But what I am really most interested

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EARLY J. RUSH, III May 9, 2008
Page 50 Page 52
1 in was the page 2. And that is where there's 1 Q. Okay.
2 an indication, as of '05, that there was an 2 A. That was going on, and still is.
3 Engineering Division, a Real Estate Division, 3 Q. And the Lake Pontchartrain and
4 a Contracting Division, a Planning Programs 4 Vicinity Hurricane Protection Project, it's
5 and Project Management Division, a 5 still going on, too, even today.
6 Construction Division, and an Operations 6 A. Yes, it is, yes.
7 Division. Was your office organized like 7 MR. LIDDLE:
8 this? 8 Objection, vague, ambiguous.
9 A. Essentially, yes. 9 EXAMINATION BY MR. BRUNO:
10 Q. Okay. You had an Engineering 10 Q. Unfortunately for us. So it goes.
11 Division? 11 MRGO, was MRGO a completed
12 A. Yes. 12 project?
13 Q. Did you have a Real Estate Division? 13 A. My sense tells me yes.
14 A. Yes, we did. 14 Q. Okay.
15 Q. Did you have a Contracting Division? 15 A. Whether technically it was, I can't
16 A. I don't remember that specific term, 16 say.
17 but maybe we did. 17 Q. All right. Do you recall whether or
18 Q. All right. How about a Planning 18 not you had within your command an Op Manager
19 Programs and Project Management Division? 19 for the MRGO?
20 A. Yes. 20 A. I don't recall having one.
21 Q. Okay. I think somebody, I forgot, 21 Q. Because there is one on this --
22 may have indicated that back in the day, that 22 A. I saw one on the chart.
23 division may have been a component of some 23 Q. Right. Did you in your structure,
24 other division? Or was it a standalone for 24 your organizational structure, have an Op
25 you? 25 Manager for any standalone project? And I ask
Page 51 Page 53
1 A. It stood alone when I was there. 1 that because I am looking at this one here and
2 Q. That's fine. Construction Division? 2 it see it has a -- there's an Atchafalaya Op
3 A. Yes. 3 Manager, a Mississippi River Baton Rouge to
4 Q. And Operations Division? 4 Gulf Manager, Calcasieu River Manager, a Gulf
5 A. Yes. 5 Intracoastal Waterway Manager. It seems like
6 Q. Okay. Now, all of that to get us 6 --
7 through this business of what's completed or 7 A. We weren't organized that way.
8 not. Okay? When does a project fall within 8 Q. That's what I was driving at. How
9 the ambit of the responsibility of the 9 was your Operations Division organized when
10 Operations Division? 10 you were the Commander, sir?
11 A. Essentially when a project was 11 A. Well, we had our Emergency
12 completed. 12 Operations. We had our Permitting Programs
13 Q. Okay. Then I have to ask you now, 13 within the Operations Division. We did
14 since you asked me, what does "completed" 14 dredging under the Operations Division. And
15 mean? 15 that was essentially it --
16 A. Well, for example, in a lock and 16 Q. Okay.
17 dam, you build a lock, the lock becomes 17 A. -- that I remember.
18 operational -- 18 Q. All right. Now, are you aware as to
19 Q. Right. 19 whether or not there are any regulations which
20 A. -- once everything is done. 20 govern what it is that the District Commander
21 Q. Got you. 21 is supposed to do relative to a completed
22 A. Many of the projects that we had 22 project?
23 there in the District were ongoing because 23 MR. LIDDLE:
24 they just were not completed, such as 24 Objection, vague, ambiguous.
25 Mississippi River Tributaries project. 25 THE WITNESS:

14 (Pages 50 to 53)
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EARLY J. RUSH, III May 9, 2008
Page 54 Page 56
1 Not that I recall. 1 project to do foreshore protection of the -- I
2 EXAMINATION BY MR. BRUNO: 2 guess you would call it the western bank of
3 Q. All right. If I give you this 3 the MRGO at Reach 2 -- Withdraw. Let me get
4 descriptor, ER1110-2-100, I am not asking you 4 you oriented to place and time. I am not
5 to memorize -- tell me what it is, the words 5 going to do that to you.
6 of the standard are, but are you familiar with 6 Are you familiar with the Reach 1
7 engineering, or these ERs, engineering 7 and Reach 2 descriptors?
8 standards? 8 A. No, I am not.
9 A. I kind of remember that they 9 Q. All right. Well, we have been
10 existed. 10 generally describing -- I have got these maps
11 Q. Okay. Do you remember whether or 11 in front of you. This is a satellite photo.
12 not there were any engineering or ER standards 12 Are you able to, by looking at these satellite
13 which governed what the District Commander was 13 photos, get a general understanding of what's
14 supposed to do relative to a completed 14 depicted herein?
15 project? 15 A. Yes.
16 A. I don't recall it. 16 Q. All right. Do you see on these
17 Q. All right. Let me ask you this, 17 satellite photos the MRGO?
18 sir. Do you know whether or not the District 18 A. Yes, I do.
19 Commander of the New Orleans office, within 19 Q. All right. Can you just point to
20 the time frame of '75 to '78 while you were 20 the MRGO for me?
21 the Commander, had an obligation to conduct 21 A. (Indicating).
22 periodic inspections to assess and evaluate 22 MR. BRUNO:
23 the performance and safety of a particular 23 You can't get that, huh?
24 project during its operation or its operating 24 EXAMINATION BY MR. BRUNO:
25 life? 25 Q. Forgive me for doing this to you. I
Page 55 Page 57
1 A. Well, the only thing that I remember 1 am going to hold it up for the picture.
2 being involved in was annual inspections of 2 A. (Indicating).
3 the levees along the various waterways. 3 Q. All right. And that's the -- That's
4 Q. All right. Well, as regards the 4 what goes down south.
5 MRGO in particular, let me ask the same 5 Now, for my questions, we have
6 question. Did you believe that the District 6 been referring to the point of the MRGO which
7 office had any obligation to periodically 7 originates in the Inner Harbor Navigation
8 inspect the MRGO for the purposes of assessing 8 Canal and goes to the point at which it
9 and evaluating the performance and safety of 9 branches off into its own canal off of the
10 the MRGO during its operating life? 10 Intracoastal Waterway as Reach number 1.
11 A. We probably did, but I don't 11 Okay?
12 remember, you know, specifically getting 12 Reach number 2 we're describing as
13 involved in that. 13 the point at which it branches off and ends at
14 Q. Okay. Were you ever put on notice 14 the land. And then Reach number 3 is out in
15 of any particular issues related to the MRGO 15 the water, out in the Gulf.
16 -- 16 So when I refer to Reach 2 for the
17 A. I don't remember -- 17 purposes of the questions, I am talking about
18 Q. -- generally? 18 from this point to this point (indicating).
19 A. -- any. 19 Okay?
20 Q. None. Okay. Did anybody ever tell 20 A. (Witness nods head affirmatively.)
21 you that there was a problem with bank erosion 21 Q. Then when I refer to -- Are you
22 associated with the MRGO? 22 familiar with whether or not there was any
23 A. Not that I recall during my tour 23 hurricane protection structures along the
24 there. 24 banks of the MRGO?
25 Q. Do you have any knowledge of a 25 A. No, I don't.

15 (Pages 54 to 57)
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Page 58 Page 60
1 Q. So when you were the District 1 MR. STONE:
2 Commander, did you know that there was a 2 Thank you.
3 hurricane protection levee along Reach 2, that 3 EXAMINATION BY MR. BRUNO:
4 is, from where the MRGO branches off of the 4 Q. All right. Where was I? I want to
5 IWW and moves south up until I guess that's -- 5 talk a little bit about budgets and money,
6 did we decide that was called Violet? 6 spending money. The Corps of Engineers had a
7 A. I don't recall it. 7 budget for the dredging of the MRGO while you
8 Q. All right. So I guess then that you 8 were the District Commander; right?
9 have no recollection of any effort by the 9 A. Yes.
10 Corps of Engineers to provide bank erosion 10 Q. Okay. And you had a budget to
11 protection along either side of the bank? 11 operate and maintain the MRGO generally;
12 A. No, I don't. 12 right?
13 Q. Okay. 13 A. I believe so.
14 MR. LIDDLE: 14 Q. Okay. During your tenure as the
15 Joe, can we have these marked? 15 District Commander, can you recall any
16 MR. BRUNO: 16 instances where there was a need to build
17 Sure. Yes, we can. 17 foreshore protection anywhere in the
18 MR. BUCHLER: 18 District?
19 We can give him a copy. 19 MR. LIDDLE:
20 MR. BRUNO: 20 Objection, vague, ambiguous.
21 We'll just mark these as Colonel 21 THE WITNESS:
22 Rush 1 and 2. Which we can do. 22 What do you mean by "foreshore
23 MR. LIDDLE: 23 protection"?
24 Okay. 24 EXAMINATION BY MR. BRUNO:
25 MR. BRUNO: 25 Q. Okay. My understanding of
Page 59 Page 61
1 And we'll attach them. We'll 1 "foreshore protection", and I may be wrong
2 attach them. 2 about this, is when wave action, from a
3 MR. STONE: 3 variety of causes, causes the bank of the
4 We'd like a copy, too. 4 channel or the river or the whatever to fall
5 MR. BRUNO: 5 away. There is a method of protection that
6 (Counsel hands document to 6 can be employed to keep that from occurring.
7 Counsel.) 7 One of those methods of protection is to just
8 MR. STONE: 8 put big old blocks of concrete and put it on
9 Appreciate it. 9 the shore, at least as I understand it. Are
10 MR. BRUNO: 10 you familiar with that kind of an issue?
11 No charge. 11 A. Well, --
12 MR. STONE: 12 MR. LIDDLE:
13 You said these were updated? 13 Objection, vague, ambiguous.
14 MR. BUCHLER: 14 THE WITNESS:
15 Yes. 15 -- on the Mississippi River we
16 MR. STONE: 16 put in bank protection in places to
17 From old? Is this like from -- 17 prevent erosion and --
18 MR. BUCHLER: 18 EXAMINATION BY MR. BRUNO:
19 The mile markers are. 19 Q. Okay.
20 MR. BRUNO: 20 A. -- and degradation of the levee
21 I know. On that one? 21 itself.
22 MR. BUCHLER: 22 Q. All right.
23 Yes. 23 A. This was articulated concrete
24 MR. BRUNO: 24 mattresses.
25 They're yours. No charge. 25 Q. Okay. Well, let's talk about the

16 (Pages 58 to 61)
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EARLY J. RUSH, III May 9, 2008
Page 62 Page 64
1 river then, the Mississippi River. The Corps 1 Okay.
2 did put some bank protection in place; right? 2 MR. BRUNO:
3 A. Yes. 3 This is the end of tape one.
4 Q. Was that a part of the maintenance 4 We're going off the record.
5 budget or was that a capital outlay? 5 (Whereupon a discussion was held
6 A. I don't recall. 6 off the record.)
7 Q. All right. Well, tell me this. 7 VIDEO OPERATOR:
8 What discretion did you have as the District 8 This is the beginning of tape
9 Commander to spend money on things like bank 9 two. We're now back on the record.
10 protection? 10 EXAMINATION BY MR. BRUNO:
11 MR. LIDDLE: 11 Q. All right. If your operations
12 Objection, vague, ambiguous. 12 manager in charge of the MRGO felt it
13 THE WITNESS: 13 important to install bank protection on the
14 Not really discretion. It had to 14 MRGO banks, what is the process that he would,
15 be a justified need. 15 or the procedure that he would use in order to
16 EXAMINATION BY MR. BRUNO: 16 get that accomplished?
17 Q. Okay. 17 MR. LIDDLE:
18 A. And also, you know, costs associated 18 Objection, vague, ambiguous.
19 with it. 19 THE WITNESS:
20 Q. Tell me how that works if you will. 20 I don't think he could.
21 I mean, you get a sum of money every year; 21 EXAMINATION BY MR. BRUNO:
22 right? 22 Q. Okay. Why is that?
23 A. No. 23 A. Wouldn't have the authority to do
24 Q. You don't? All right. How does the 24 so.
25 money come to your District office? 25 Q. All right. And why not?
Page 63 Page 65
1 A. By budgeting within the District for 1 A. Because it wasn't authorized within
2 specific requirements. 2 the original project.
3 Q. All right. Well, how does that 3 Q. What wasn't?
4 information come to you? 4 A. The work that you're suggesting.
5 A. Through the staff. 5 Q. Okay.
6 Q. All right. 6 A. The bank protection.
7 A. And engineering analyses. 7 Q. Oh, I understand. So you do now
8 Q. What I am trying to learn is, do you 8 have a recollection of the original
9 start with a number and you say "Colonel, I 9 authorization of the MRGO?
10 have got --" "Colonel, we have X numbers of 10 A. No, I don't.
11 dollars to spend on maintenance this year" and 11 Q. Well, how do you know then that the
12 then you just cut it up? Is that how it 12 original authorization excluded bank
13 works? 13 protection?
14 A. No. 14 A. I don't.
15 MR. LIDDLE: 15 Q. Okay. I am confused. How do you
16 Objection, vague, ambiguous. 16 then reach the conclusion that he had no
17 THE WITNESS: 17 authorization to request money for bank
18 You start the other way. You 18 protection?
19 start with the requirement and then go 19 A. I guess I was hypothesizing like you
20 for the money. 20 were.
21 Q. Okay. 21 Q. Explain to me how you got there.
22 VIDEO OPERATOR: 22 A. I don't know whether that was
23 Excuse me, Mr. Bruno. I need to 23 authorized or not.
24 change tapes. 24 Q. Okay.
25 MR. BRUNO: 25 A. Just don't know.

17 (Pages 62 to 65)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
Page 66 Page 68
1 Q. I guess I am confused. When we talk 1 Q. Generally they don't. Isn't that
2 about this business of authorization, okay, we 2 true?
3 know we have got to build the thing and we 3 A. I don't know.
4 tell the Congress what we're going to build 4 MR. LIDDLE:
5 and the Congress says "Build it" and we have a 5 Objection, vague, ambiguous.
6 general description of what it is that we're 6 EXAMINATION BY MR. BRUNO:
7 building. Otherwise, you can't know what's 7 Q. Have you ever seen a project
8 within the authorization and what's outside of 8 document that includes a description of the
9 the authorization. Don't you agree? 9 maintenance components?
10 MR. LIDDLE: 10 A. Not to my recollection.
11 Objection, vague, ambiguous. 11 Q. Right.
12 THE WITNESS: 12 A. Not that that means that it was
13 Project authority would describe 13 there or wasn't there.
14 what you can do. 14 Q. Right. Well, I mean the point is
15 EXAMINATION BY MR. BRUNO: 15 that generally it's not there. Isn't that
16 Q. All right. Well, I guess what I am 16 true?
17 asking you fundamentally is how do you figure 17 MR. LIDDLE:
18 out what you're authorized to do? 18 Objection. Objection, vague,
19 MR. LIDDLE: 19 ambiguous.
20 Objection, vague, ambiguous. 20 THE WITNESS:
21 EXAMINATION BY MR. BRUNO: 21 I don't know.
22 Q. As the District Commander of the New 22 EXAMINATION BY MR. BRUNO:
23 Orleans office relative to the MRGO, what is 23 Q. Well, you can't know what
24 the procedure by which you would learn what 24 maintenance issues you're going to face until
25 you're authorized to do and what you're not 25 you actually put the thing in operation.
Page 67 Page 69
1 authorized to do? 1 Isn't that reasonable?
2 A. That would be in the project 2 MR. LIDDLE:
3 documents as they were developed for that 3 Objection, vague, ambiguous.
4 project and were approved by Congress. 4 EXAMINATION BY MR. BRUNO:
5 Q. All right. Well, you have talked 5 Q. Is that reasonable?
6 about two documents. You have talked about 6 A. Well, a navigation project, you
7 project documents and a Congressional 7 could probably foresee that you might need
8 approval, which in my mind are two different 8 dredging.
9 piece of paper. 9 Q. Exactly. You might foresee that you
10 A. I think they're the same. 10 may need dredging, but you certainly did not
11 Q. They're the same? Okay. So that 11 know how much dredging you might need; right?
12 the Congressional approval is where you would 12 MR. LIDDLE:
13 go? 13 Objection, vague, ambiguous.
14 A. Yes. 14 THE WITNESS:
15 Q. And the Congressional approval 15 That would have to be determined
16 drives the project documents; right? 16 at the time.
17 A. Yes. 17 EXAMINATION BY MR. BRUNO:
18 Q. All right. I'm with you. Now, does 18 Q. Sure. And, in fact, one of the
19 the authorization have anything in it about 19 things that you learned as the District
20 maintenance? 20 Commander of the New Orleans District was that
21 MR. LIDDLE: 21 the MRGO required a whole lot more dredging
22 Objection, vague, ambiguous. 22 than was contemplated by the original
23 THE WITNESS: 23 authorization. Isn't that true?
24 I don't recall. 24 A. I don't know that that's the case.
25 EXAMINATION BY MR. BRUNO: 25 Q. You don't know if that's the case.

18 (Pages 66 to 69)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
Page 70 Page 72
1 In terms of dredging then, in 1 A. I don't know.
2 terms of how much dredging was within your 2 Q. All right. Assume for the sake of
3 authority, if -- and please just accept this 3 this question that the authorization says 500
4 to be accurate -- the original authorization 4 feet. It says it, black and white. Does the
5 for the MRGO channel provides for a 500 foot 5 Corps have the discretion to make it 600?
6 bottom width, with a one-on-two slope and a 36 6 A. I don't know, Mr. Bruno.
7 foot depth, did the Corps have the authority 7 Q. All right. Would you agree or
8 to dredge to 40 feet? 8 disagree that bank erosion on a channel that
9 MR. LIDDLE: 9 was dredged by the United States Army Corps of
10 Objection, vague, ambiguous. 10 Engineers was an undesirable outcome?
11 THE WITNESS: 11 MR. LIDDLE:
12 I don't remember what -- whether 12 Objection, vague, ambiguous.
13 we had an allowance beyond the 13 THE WITNESS:
14 authorized depth. Perhaps a little 14 It could be.
15 bit, but maybe not. I don't know. 15 EXAMINATION BY MR. BRUNO:
16 EXAMINATION BY MR. BRUNO: 16 Q. All right. And that's because the
17 Q. All right. Well, most of these 17 Corps has a right-of-way within which it has
18 authorizations have this little dangling 18 the right to dredge and build the channel.
19 participle that says "within the discretion of 19 And certainly the Corps would agree, would it
20 the United States Army, the Chief of the 20 not, that you don't want the banks to erode to
21 Corps". Right? I mean that's in it? 21 the point where they're actually going in or
22 A. I don't know. 22 beyond the right-of-way?
23 Q. You don't know that either? 23 MR. LIDDLE:
24 MR. LIDDLE: 24 Objection, vague --
25 Objection, vague, ambiguous. 25 EXAMINATION BY MR. BRUNO:
Page 71 Page 73
1 THE WITNESS: 1 Q. Isn't that reasonable?
2 I don't know that. 2 MR. LIDDLE:
3 EXAMINATION BY MR. BRUNO: 3 Objection, vague, ambiguous,
4 Q. Well, in order to learn the limits 4 compound.
5 of your discretion, what do you do as the 5 THE WITNESS:
6 District Commander? 6 I don't know.
7 MR. LIDDLE: 7 EXAMINATION BY MR. BRUNO:
8 Objection, vague, ambiguous. 8 Q. Well, if I owned a piece of property
9 THE WITNESS: 9 and I gave the Corps a right-of-way of ten
10 I don't remember. And I don't 10 feet to build something and the Corps, because
11 know -- 11 of what it's built, caused damage, caused my
12 EXAMINATION BY MR. BRUNO: 12 property to fall into the water beyond the ten
13 Q. Okay. 13 feet, wouldn't the Corps regard that as a
14 A. -- at this time. 14 problem?
15 Q. All right. Can you share with me 15 MR. LIDDLE:
16 whether or not the Corps -- Let's assume that 16 Objection, vague, ambiguous.
17 the authorized bottom width was 500 feet. 17 THE WITNESS:
18 Could the Corps dredge it to 600 feet? 18 We'd probably have to do
19 MR. LIDDLE: 19 something to, you know, do something
20 Objection, vague, ambiguous. 20 about that.
21 EXAMINATION BY MR. BRUNO: 21 EXAMINATION BY MR. BRUNO:
22 Q. The bottom width. 22 Q. Well, I mean, let's put it in
23 A. I don't know. 23 perspective. Let's say I've got a camp and I
24 Q. Would that be within the discretion 24 have built a house, which we call a camp,
25 of the Army Corps? 25 probably a shack, along the banks of the MRGO

19 (Pages 70 to 73)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
Page 74 Page 76
1 because I like to go hunting and fishing, 1 Q. You wouldn't?
2 killing a little duck every now and then, and 2 A. No.
3 the first year I see the bank is 25 foot from 3 Q. After having served in the Office of
4 my front doorstep and the next year it's five 4 Civil Works, would you feel compelled to tell
5 feet from my front doorstep; that would -- the 5 the Congress?
6 Corps would recognize that to be a problem, 6 MR. LIDDLE:
7 would it not? 7 Objection, vague, ambiguous.
8 MR. LIDDLE: 8 THE WITNESS:
9 Objection, vague, ambiguous. 9 No.
10 THE WITNESS: 10 EXAMINATION BY MR. BRUNO:
11 I don't know whether we would 11 Q. Why not?
12 or not. 12 A. I think that if a constituent had
13 EXAMINATION BY MR. BRUNO: 13 that problem he would be reporting it through
14 Q. All right. Well, you don't know. 14 his channels to the Congress.
15 A. No, I don't. 15 Q. All right. So it's the
16 Q. All right. So there's the 16 constituent's --
17 possibility that the loss of land to the point 17 A. At least.
18 where the bank moves from 25 feet from 18 Q. -- problem -- In fairness to you,
19 somebody's front door to five feet may not be 19 it's the constituent's problem, not your
20 a problem? 20 problem; right?
21 MR. LIDDLE: 21 MR. LIDDLE:
22 Objection, vague, ambiguous. 22 Objection, vague, ambiguous.
23 THE WITNESS: 23 THE WITNESS:
24 Don't know. 24 To do something about it, yes.
25 EXAMINATION BY MR. BRUNO: 25 EXAMINATION BY MR. BRUNO:
Page 75 Page 77
1 Q. Okay. I am just trying to see if we 1 Q. Okay.
2 can be reasonable, within the realm of reason 2 MR. BRUNO:
3 here, and you tell me you don't know. 3 Let me have that testimony.
4 A. I don't know. 4 EXAMINATION BY MR. BRUNO:
5 Q. All right. Well, how about this? 5 Q. I am wondering then if you would
6 If you, as the District Commander, reached the 6 agree with a gentleman by the name of Accardo
7 conclusion that bank erosion was a problem to 7 who echoed that similar sentiment. I am going
8 the point where you had to do something, let's 8 to ask you the question that I asked him and I
9 just leave that alone, what I am curious to 9 am going to read to you his response and just
10 know is what could you do? 10 ask if you agree.
11 MR. LIDDLE: 11 Before I get there, I have got to
12 Objection, vague, ambiguous. 12 ask one more question. As the District
13 THE WITNESS: 13 Commander, did you have any understanding that
14 Nothing. 14 wetlands and marsh and trees provided a
15 EXAMINATION BY MR. BRUNO: 15 hurricane buffer?
16 Q. Nothing? 16 A. Yes.
17 A. I don't think so. 17 Q. Was that something you knew? You
18 Q. Well, could you -- could you -- do 18 knew that?
19 you -- would you feel compelled to report it 19 A. Yes, I did.
20 up the line? 20 Q. Okay. And would you agree that
21 MR. LIDDLE: 21 marsh is good because it provides a buffer?
22 Objection, vague, ambiguous. 22 MR. LIDDLE:
23 EXAMINATION BY MR. BRUNO: 23 Objection, vague, ambiguous.
24 Q. At least? 24 THE WITNESS:
25 A. No. 25 I do agree.

20 (Pages 74 to 77)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
Page 78 Page 80
1 EXAMINATION BY MR. BRUNO: 1 Q. And I can show it to you.
2 Q. Okay. And would you agree that the 2 A. I don't really know what he is
3 destruction of the marsh is the destruction of 3 saying.
4 a hurricane buffer? 4 Q. That's fine. All right. Here's my
5 MR. LIDDLE: 5 question to him. "We allege in our lawsuit,"
6 Objection, vague, ambiguous. 6 which is what we're all here about, "that the
7 THE WITNESS: 7 MRGO caused the erosion of the marsh, caused
8 It depends. 8 the death of trees and swamp and things like
9 EXAMINATION BY MR. BRUNO: 9 that, and in that sense reduced the capacity
10 Q. Okay. Why? What does it depend 10 of the marsh to act as a buffer for surge."
11 on? I'm sorry. 11 That's what we allege. It doesn't mean it's
12 A. The extent of damage. 12 true; it means that's what we're trying to
13 Q. But it may reach the point where it 13 prove. Okay? You with me? So I ask him,
14 could reduce the buffer; right? 14 "What I am trying to figure out is, does the
15 A. It would have to be pretty 15 Corps really have any interest in
16 extensive, yes. 16 ascertaining, first, whether or not they, as
17 Q. All right. Well, here's what Mr. 17 they continued to dredge this MRGO, they were
18 Accardo says. 18 in fact contributing to the loss of the
19 A. Who is Mr. Accardo? 19 buffer?" That's my question to him. Here's
20 Q. He is the Operations Manager for the 20 his answer. "We were doing what Congress told
21 MRGO -- 21 us to do. The authorization, the channel was
22 A. Okay. 22 authorized for navigation purposes. The
23 Q. -- as of -- I don't know what date. 23 navigation industry needed that channel to
24 MR. BRUNO: 24 exist. So," and he is still saying this, it's
25 Help me. I think he's on the 25 his answer, "it was not whether I felt we were
Page 79 Page 81
1 chart. No, this is Russo. 1 hurting the marsh or the Project felt they
2 EXAMINATION BY MR. BRUNO: 2 were hurting the marsh, it was irrelevant.
3 Q. I'm sorry, he was the head of the 3 Congress of the United States says 'You will
4 whole division. I apologize, sir. I don't 4 dredge that channel and provide project
5 know -- 5 dimensions for the navigation industry.' It
6 MR. BRUNO: 6 was not anybody within Operations to question
7 When was that? I want to be fair 7 and say 'But we're destroying the marsh.'" Do
8 with the witness. Do you remember? 8 you agree with that statement?
9 MR. BUCHLER: 9 MR. LIDDLE:
10 Right now. 10 Objection, vague, ambiguous, --
11 EXAMINATION BY MR. BRUNO: 11 THE WITNESS:
12 Q. Right now, he's today the head of 12 Yes, I do.
13 the Operations Division. Okay? So that 13 MR. LIDDLE:
14 you'll have context. He says "Marsh is good 14 -- compound. And I'll object to
15 because it provides a buffer for any area 15 your question to Mr. Accardo, too, if
16 that's located inland from the Gulf of 16 no one objected to it.
17 Mexico." Do you agree with that? 17 MR. BRUNO:
18 A. Yes. 18 And I will give you that. All
19 Q. He said "It may not be worth, from a 19 right.
20 real estate standpoint, a subdivision where 20 EXAMINATION BY MR. BRUNO:
21 you have a house, but the value of marsh is 21 Q. Okay. So in your mind, the Corps is
22 good." Do you agree with that? 22 a builder, the Corps' job is to build it, and
23 MR. LIDDLE: 23 that's where the obligation ends; right?
24 Objection, vague, ambiguous. 24 MR. LIDDLE:
25 EXAMINATION BY MR. BRUNO: 25 Objection, vague, ambiguous,

21 (Pages 78 to 81)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
Page 82 Page 84
1 compound. 1 MR. LIDDLE:
2 THE WITNESS: 2 Objection, vague, ambiguous.
3 We do what we have been told to 3 THE WITNESS:
4 do. 4 If it's within the authority
5 EXAMINATION BY MR. BRUNO: 5 that's been given to the Corps
6 Q. All right. And you do not 6 relative to the project, yes.
7 understand that what you have been told to do 7 EXAMINATION BY MR. BRUNO:
8 includes making certain that your projects 8 Q. Okay. So is it your testimony that
9 don't damage other folks' property? That's 9 in order for the Corps to accept the
10 not what you have been told to worry about; 10 responsibility of not damaging somebody else's
11 right? 11 property, that the authorization by Congress
12 MR. LIDDLE: 12 has to say that?
13 Objection, vague, ambiguous. 13 MR. LIDDLE:
14 THE WITNESS: 14 Objection, vague, ambiguous.
15 I don't know how to answer that. 15 EXAMINATION BY MR. BRUNO:
16 EXAMINATION BY MR. BRUNO: 16 Q. Is that what you're telling me?
17 Q. How come? 17 A. I think so.
18 A. I just don't. 18 Q. Okay. That's fine.
19 Q. Well, -- 19 I'm going to show you Public Law
20 MR. LIDDLE: 20 9483, August 13, 1968, Section 110. I am
21 Maybe because it's vague and 21 going to read it to you and then I'll show it
22 ambiguous. 22 to you. "The Secretary of the Army --" No,
23 MR. BRUNO: 23 it's 111. I'm sorry. "The Secretary of the
24 I don't -- 24 Army, acting through the Chief of the
25 EXAMINATION BY MR. BRUNO: 25 Engineers, is authorized to investigate,
Page 83 Page 85
1 Q. Is it vague? 1 study, and construct projects for the
2 A. Kind of. 2 prevention or mitigation of shore damages
3 Q. It's kind of vague? Is it 3 attributable to Federal navigation works. The
4 ambiguous? 4 cost of installing, operating, and maintaining
5 A. A little. 5 such projects shall be borne entirely by the
6 Q. A little? Well, we'll try again 6 United States. No project shall be
7 then. That's all. I'll keep trying until I 7 constructed without specific authorization by
8 get it right. 8 Congress if the estimated first cost exceeds
9 Would you agree with me that if a 9 $1 million."
10 channel is eroding, it might damage somebody's 10 Okay? Let me show it to you. And
11 property? 11 my first question is going to be, have you
12 MR. LIDDLE: 12 ever heard of such a thing?
13 Objection, vague, ambiguous. 13 MR. LIDDLE:
14 EXAMINATION BY MR. BRUNO: 14 And I am going to object, vague,
15 Q. I'm sorry, withdraw. 15 ambiguous to that question.
16 If a channel is eroding its banks 16 EXAMINATION BY MR. BRUNO:
17 because the banks are gone, that there is the 17 Q. Have you ever heard such a thing as
18 potential to damage property owned by folks 18 vague and ambiguous? He's pushing the
19 along that bank? Would you agree with that? 19 envelope.
20 A. It could happen. 20 MR. LIDDLE:
21 Q. It could happen. All right. All I 21 Such a thing, yes.
22 am asking you to tell me, so I have some 22 EXAMINATION BY MR. BRUNO:
23 understanding, is, does the Corps have any 23 Q. This thing. This thing. This
24 responsibility to do what it can, what it can 24 thing.
25 to keep that damage from occurring? 25 MR. LIDDLE:

22 (Pages 82 to 85)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
Page 86 Page 88
1 So you're asking him "have you 1 authorizing statute in order for him
2 ever seen this document"? 2 to be directed as to what to do. So
3 MR. BRUNO: 3 it's no longer a legal question. It
4 Heard or seen of this thing. I 4 now becomes an explanation of what the
5 guess it's compound, huh? 5 District Commander does or does not
6 MR. LIDDLE: 6 do.
7 You mean, what you just read to 7 MR. LIDDLE:
8 him? 8 Well, you're --
9 MR. BRUNO: 9 MR. BRUNO:
10 Yes. 10 In particular it also describes
11 MR. LIDDLE: 11 what he believes is his discretion and
12 Has he ever heard what you just 12 what -- I'm sorry, it also defines his
13 read or seen what you just read? 13 understanding of what his discretion
14 EXAMINATION BY MR. BRUNO: 14 is or is not. So it's not a legal
15 Q. Here's the statute. Yes. It is a 15 question at all. It's, rather, asking
16 component of a statute, an authorization 16 him to interpret this document in
17 statute I might point out, authorizing 17 terms of what he does as the District
18 statute. 18 Commander of the New Orleans office.
19 A. No. 19 That's the question.
20 MR. LIDDLE: 20 MR. LIDDLE:
21 What section did you read again, 21 I think then the proper first
22 Joe? 22 question should be "Have you seen this
23 MR. BRUNO: 23 and did you interpret this and when
24 111. 24 you were the District Engineer". It
25 EXAMINATION BY MR. BRUNO: 25 seems to me you're giving him a
Page 87 Page 89
1 Q. You may want to read it for yourself 1 statute, have no idea if he's ever
2 to make certain that I read -- You want to 2 seen it --
3 highlight it? It might make it easier to 3 MR. BRUNO:
4 read, because that big, fat print is just 4 No, I think he already said he
5 difficult to read. 5 hadn't seen it.
6 MR. LIDDLE: 6 THE WITNESS:
7 (Writing). 7 I hadn't seen it.
8 THE WITNESS: 8 MR. BRUNO:
9 Okay. I have read it. 9 No, we have already gotten that.
10 EXAMINATION BY MR. BRUNO: 10 MR. LIDDLE:
11 Q. All right. Would you agree with me, 11 So you're asking him to interpret
12 sir, that that's an authorizing statute? 12 a statute.
13 A. To a degree. 13 MR. BRUNO:
14 Q. Why do you say "to a degree"? 14 No, I'm not. Because he hasn't
15 A. Because it has limitations on it. 15 seen it is not my fault. It certainly
16 Q. Okay. What's the limitation? 16 seems -- In fact, --
17 A. It says -- 17 MR. LIDDLE:
18 MR. LIDDLE: 18 Let's just stop. The same
19 And I am going to object to the 19 objection.
20 extent that these questions ask for 20 MR. BRUNO:
21 legal interpretations of the statute. 21 -- one would suggest --
22 MR. BRUNO: 22 MR. LIDDLE:
23 Well, sorry, that doesn't work, 23 The same objection.
24 because the witness has already told 24 MR. BRUNO:
25 me that he has to see and read the 25 -- that he should have seen it,

23 (Pages 86 to 89)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
Page 90 Page 92
1 but that's a whole another issue. 1 A. I don't think so under that
2 MR. LIDDLE: 2 circumstance. Because the project would have
3 The same objection. 3 to be developed by the investigation and the
4 MR. BRUNO: 4 study, and the recommendation for the total
5 Fine. 5 solution to the problem could probably cost
6 EXAMINATION BY MR. BRUNO: 6 more than $1 million.
7 Q. Anyway, Colonel, maybe I'm wrong, 7 Q. Would you agree that that statute
8 but that statute seems to authority the United 8 evidences an intent on the part of the
9 States Army Corps of Engineers to protect the 9 Congress to suggest -- I'm sorry, it evidences
10 shores of any navigable -- I mean any 10 an intent on the part of the Congress to
11 navigation project. Wouldn't you agree? If 11 provide protection to the shorelines of
12 it wants to. 12 navigation projects built by the United States
13 A. It says -- 13 of America?
14 MR. LIDDLE: 14 MR. LIDDLE:
15 Objection, vague, ambiguous. 15 Objection, vague, ambiguous, and
16 THE WITNESS: 16 for all of these again that calls for
17 -- the Secretary of the Army 17 a legal conclusion.
18 acting through the Chief can authorize 18 THE WITNESS:
19 to investigate, study, and construct 19 Just that it relates to it.
20 projects for navigation or mitigation 20 That's the only thing I can say.
21 of shore damages. 21 EXAMINATION BY MR. BRUNO:
22 EXAMINATION BY MR. BRUNO: 22 Q. All right. Well, we at least agree
23 Q. It means he can. He -- Right? 23 that the words of this statute relate to the
24 A. He could study it. 24 shores of navigation works. At least you give
25 Q. He could? 25 me that; right?
Page 91 Page 93
1 A. Could study it. 1 MR. LIDDLE:
2 Q. So he's got the discretion; right? 2 The same objections.
3 A. To study and investigate. 3 THE WITNESS:
4 Q. And construct. 4 The words are there.
5 A. Construct only with Congressional 5 EXAMINATION BY MR. BRUNO:
6 approval. 6 Q. Right. But are you giving me that,
7 Q. Only if it costs more than a million 7 or you're not?
8 bucks. 8 MR. LIDDLE:
9 A. It says "No construction shall be 9 The same objections.
10 constructed without approval of the Congress 10 THE WITNESS:
11 if cost is estimated over $1 million". 11 The thing is that I read what's
12 Q. Over a million. So the point is, 12 there.
13 the Chief has the discretion to spend $1 13 EXAMINATION BY MR. BRUNO:
14 million to protect the banks of navigation 14 Q. Do the words say that?
15 projects if he wants to. Isn't that true? 15 MR. LIDDLE:
16 A. No, I don't agree with that. 16 The same objections.
17 MR. LIDDLE: 17 THE WITNESS:
18 Objection, vague, ambiguous. 18 The word --
19 EXAMINATION BY MR. BRUNO: 19 EXAMINATION BY MR. BRUNO:
20 Q. All right. Why don't you agree with 20 Q. Do the words say that -- Do the
21 that? 21 words at least describe shore damages
22 A. Because the $1 million might only 22 attributable to Federal navigation works?
23 solve a part of the problem. And -- 23 Does it -- at least agree with me on that
24 Q. That's fine. But he's got authority 24 point?
25 to spend a million, doesn't he? 25 MR. LIDDLE:

24 (Pages 90 to 93)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
Page 94 Page 96
1 If you want him to look at words 1 After my time.
2 in that, maybe you should give him the 2 EXAMINATION BY MR. BRUNO:
3 document. 3 Q. Exactly. Colonel, I am going to
4 EXAMINATION BY MR. BRUNO: 4 show you a document that's entitled the United
5 Q. I will give it to you again. I want 5 States Army Corps of Engineers, Mississippi
6 to see if you will at least agree with me that 6 River Gulf Outlet Louisiana, General Design
7 statute describes the shores of navigation 7 Memorandum Number 2, Supplement Number 4,
8 projects. 8 foreshore protection, April, '68", and ask you
9 MR. LIDDLE: 9 if page 3, which I have got folded over with a
10 Objection, vague, ambiguous. 10 little tab, is your signature.
11 THE WITNESS: 11 A. Yes, it is my signature.
12 Again, I have to look at the 12 Q. All right, sir. Take just a moment
13 words in full context, "investigate, 13 to familiarize yourself with the document so I
14 study, and construct projects for the 14 can ask you a few questions if you just don't
15 prevention or mitigation of shore 15 mind.
16 damages attributable to Federal 16 MR. LIDDLE:
17 navigation projects". 17 Just the first three pages of the
18 EXAMINATION BY MR. BRUNO: 18 letter?
19 Q. All right. That's fine. Would you 19 MR. BRUNO:
20 agree with me that bank erosion along the MRGO 20 No, the whole document.
21 would be shore damage? 21 MR. LIDDLE:
22 MR. LIDDLE: 22 The entire document?
23 Objection, vague, ambiguous. 23 MR. BRUNO:
24 THE WITNESS: 24 The whole, entire document.
25 I don't know. 25 THE WITNESS:
Page 95 Page 97
1 EXAMINATION BY MR. BRUNO: 1 This is page 1. This is page 2.
2 Q. Okay. Fair enough. 2 EXAMINATION BY MR. BRUNO:
3 (Whereupon a discussion was held 3 Q. That came off of the Corps of
4 off the record.) 4 Engineers' website exactly as you see it.
5 EXAMINATION BY MR. BRUNO: 5 A. This is page 3. Okay. And then 4
6 Q. Let me show you this document, 6 is coming back from the Division to us. Then
7 Colonel. 7 this is us back to the Division. And this is
8 MR. LIDDLE: 8 back to us. This is back in 1968. '66.
9 Sorry. Before you start, could 9 '66. Kind of complicated.
10 we get the statute as an exhibit as 10 Q. I know. Believe me. I have tried
11 well? 11 to read them myself. It's sort of an
12 MR. BRUNO: 12 interesting method that the Corps uses to put
13 Sure. Can you make a copy? Do 13 these documents together.
14 they have a copy machine here? They 14 A. So what are you asking me?
15 have no water, no coffee. 15 Q. All right. The first question I
16 MR. LIDDLE: 16 have is, does this document refresh your
17 I hope so. They have a sink. 17 recollection in any way with regard to
18 MR. BRUNO: 18 foreshore protection?
19 They don't even have stalls in 19 A. No, it doesn't.
20 the bathroom, for crying out loud. 20 Q. Okay. Do you remember any of the
21 Please. It's a hell of a place. What 21 issues that are described in this document?
22 a country. Have gold-plated faucets 22 MR. LIDDLE:
23 in the New Orleans office, thank you 23 You're talking about the entire
24 very much. 24 40 page document?
25 THE WITNESS: 25 MR. BRUNO:

25 (Pages 94 to 97)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
Page 98 Page 100
1 Well, yes, because he signed the 1 THE WITNESS:
2 document, which readopts the old 2 I don't know.
3 document, yes. 3 EXAMINATION BY MR. BRUNO:
4 MR. LIDDLE: 4 Q. All right. In paragraph two it says
5 Because we've, just for the 5 "Design changes".
6 record, we've -- he's had I'd say less 6 A. Yeah.
7 than five minutes to go through it. 7 Q. Right?
8 MR. BRUNO: 8 A. See, I believe the design memorandum
9 No, I understand that. And 9 is, you know, the bulk of that document that
10 that's why I am -- 10 you've got.
11 EXAMINATION BY MR. BRUNO: 11 Q. Right. That's the original one.
12 Q. All I had asked for was whether or 12 A. Yeah.
13 not you have any remembrance of this whole 13 Q. The bulk of the document is in fact
14 episode. 14 as you indicate, Colonel, the original design
15 A. I think this is mainly the pertinent 15 memo number 2.
16 part as to what was proposed (indicating). 16 A. Yeah, all the way back to '68.
17 MR. LIDDLE: 17 Q. Right. And then what we're looking
18 What was the question again, 18 at here is the change, is the supplement.
19 Joe? 19 A. A change.
20 EXAMINATION BY MR. BRUNO: 20 Q. A change.
21 Q. Okay. The question was, do you 21 A. A change.
22 remember any of the issues that would regard 22 Q. A change. There's more than one
23 this stack of papers which culminate in your 23 change. And it says that "In areas where,"
24 signature? 24 under the paragraph "Design changes alignment
25 A. I really don't. 25 1 and 2," it says "In areas where the Citrus
Page 99 Page 101
1 Q. Okay. That's fine. Thank you, 1 Back Levee second lift flood side stability
2 sir. 2 berm extends past the bank line of the
3 Okay. As you had pointed out, for 3 channel, it was necessary to incorporate the
4 reasons that only the Corps can explain pages 4 foreshore dike in the levee stability berm.
5 2 and 3 come after pages 4, 5, and 6. Would 5 Approval was received 7 June, 2076, letter
6 you agree with me that page 1 is dated 18 6 referred in paragraph 2-A above."
7 April, 1978? 7 Do you know what that means,
8 A. Yes. 8 "Approval was received by the 7 June, '76
9 Q. Okay. Now, it says here that the 9 letter referred to in paragraph 2-A", which
10 purpose of this letter report is to update the 10 says "Approval was received by letter dated 7
11 subject general design memorandum supplement. 11 June, '76, Lower Mississippi Valley
12 Can you tell me what is a general design 12 Engineering Division"? Do you know what that
13 memorandum supplement? 13 means.
14 A. That's the basis of engineering 14 MR. LIDDLE:
15 study done in the Engineering Division of the 15 Objection, vague, ambiguous.
16 District and comes up with the recommendation 16 THE WITNESS:
17 to solve a problem. 17 Well, that an approval came from
18 Q. All right. Now, the front page says 18 the higher headquarters of the
19 "General design memo 2" and then it says 19 District.
20 "Supplement number 4, foreshore protection". 20 EXAMINATION BY MR. BRUNO:
21 How can I figure out whether or not the 21 Q. All right. So if there's an
22 supplement is within the original 22 approval to go beyond an authorization, it
23 authorization of Congress? 23 comes from higher than your District office;
24 MR. LIDDLE: 24 right?
25 Objection, vague, ambiguous. 25 A. That did, yes.

26 (Pages 98 to 101)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
Page 102 Page 104
1 Q. Okay. I'm going to show you a 1 Yes. So this is going to be 3.
2 document which has a Bates number of 2 And then what's before the witness
3 PET-016856, 857, 858, 859, 860, 861. 3 we'll mark as Number 4.
4 MR. LIDDLE: 4 MR. LIDDLE:
5 Joe, I am just going to take this 5 I think he just wants you to look
6 off (indicating). 6 at this three-page letter.
7 MR. BRUNO: 7 THE WITNESS:
8 You got it? 8 Yeah.
9 EXAMINATION BY MR. BRUNO: 9 EXAMINATION BY MR. BRUNO:
10 Q. Let me show you this one, too, 10 Q. You got it?
11 because it might help you. 11 A. Yeah.
12 MR. BRUNO: 12 Q. All right. Well, I am showing you
13 You want to read that, Keith, the 13 these documents because the public notice that
14 numbers? 14 you signed dated 15, July '76 says "Foreshore
15 MR. LIDDLE: 15 dike construction is required in order to
16 Well, the -- 16 prevent further MRGO bank erosion which would
17 MR. BRUNO: 17 adversely affect the integrity of the adjacent
18 That letter there. 18 levee system". Do you see that? It's written
19 MR. LIDDLE: 19 there.
20 Oh, the Bates numbers? 20 A. Yes.
21 MR. BRUNO: 21 Q. Do you remember that?
22 Yes. 22 A. No. Just what I see there.
23 MR. LIDDLE: 23 Q. No memory of it today?
24 You want just this -- 24 A. Not really, no. You know, I did a
25 MR. BRUNO: 25 lot of those things.
Page 103 Page 105
1 Yes. 1 Q. Right. I understand. But would you
2 MR. LIDDLE: 2 agree that the documents suggest that the
3 -- three-page letter? 3 Corps recognized that there was a need to do
4 MR. BRUNO: 4 something to protect another structure from
5 Yes. 5 bank erosion on the MRGO?
6 MR. LIDDLE: 6 A. That is related to that thick
7 PET-016000000904, 905, and 906. 7 document --
8 Could we have that marked as well 8 Q. Yes.
9 as this? 9 A. -- on the design memorandum that you
10 MR. BRUNO: 10 just gave me. And actually, it's part of the
11 Yes. We will mark -- Can we get 11 sequence of actions that were described in
12 copies? Do you have a copy of this? 12 that three-page -- that other three-page
13 MR. BUCHLER: 13 letter.
14 No. 14 Q. It absolutely is.
15 MR. BRUNO: 15 A. Related to specific location.
16 The Bates number PET-16856 to 85- 16 Q. Right. But that's not the
17 861 will be marked as Colonel Rush 17 question. The reason I showed you all of this
18 Number -- 18 stuff was to see if it would jog your memory
19 MR. LIDDLE: 19 about the foreshore protection which you said
20 Are we on 4 or 5? 20 you didn't recall. These documents seem to
21 MR. BRUNO: 21 show that the Corps decided that there was a
22 I only have 2 in front of me. 22 need to put a dike along the north bank of the
23 MR. LIDDLE: 23 MRGO because the MRGO was eroding the bank.
24 Oh, that's 1-A and 1-B, okay. 24 A. In a specific Citrus location.
25 MR. BRUNO: 25 Q. Exactly. So is that true?

27 (Pages 102 to 105)


JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
Page 106 Page 108
1 A. Yes. That document. 1 EXAMINATION BY MR. BRUNO:
2 Q. All right. Now, and this document 2 Q. Fine. I am just asking if that
3 -- so clearly, therefore, at least in this 3 statement is true. True or false?
4 one little, tiny instance, would you agree 4 MR. LIDDLE:
5 with me that the Corps recognized that the 5 He's already testified he doesn't
6 MRGO was causing bank erosion? 6 remember. You know, asked and
7 MR. LIDDLE: 7 answered
8 Are you asking if the document 8 EXAMINATION BY MR. BRUNO:
9 suggests that? 9 Q. Would you sign a letter which
10 MR. BRUNO: 10 contained a false statement?
11 Yes. Absolutely. That's what I 11 A. No.
12 am asking. 12 Q. Of course not. So you're agreeing
13 THE WITNESS: 13 with me that this is a true statement; right?
14 I don't know that it did. 14 MR. LIDDLE:
15 EXAMINATION BY MR. BRUNO: 15 Objection, vague, ambiguous.
16 Q. All right. That what did? The 16 MR. BRUNO:
17 documents or the MRGO? 17 How is it vague to ask the
18 A. I think the cause of the -- of the 18 witness if this is a true statement?
19 problem was described in that design 19 MR. LIDDLE:
20 memorandum and I don't remember what the cause 20 The witness doesn't remember.
21 was. 21 He's already said that.
22 Q. Can you show me what you're 22 EXAMINATION BY MR. BRUNO:
23 referring to? (Counsel hands document to 23 Q. Do you want to follow the United
24 Witness.) 24 States Department of Justice --
25 Well, it's not going to be in the 25 MR. LIDDLE:
Page 107 Page 109
1 design memorandum. It's a supplement. 1 He's no following me.
2 A. Well, it says here "A change to the 2 EXAMINATION BY MR. BRUNO:
3 alignment of the foreshore dike was required 3 Q. -- attorney's suggestion that --
4 due to elimination of the borrow pit." And 4 MR. LIDDLE:
5 then it goes on to describe what would be 5 It's not a suggestion.
6 needed in order to satisfy that problem. 6 EXAMINATION BY MR. BRUNO:
7 Q. Okay. 7 Q. -- you should say that you don't
8 A. So it's -- you know, it's related to 8 know if a statement in a letter that you wrote
9 a specific thing. And that letter is a part 9 is true or false? Would you like to take that
10 of this -- of this action. 10 advice? Because --
11 Q. Well, you wrote this letter and you 11 MR. LIDDLE:
12 wrote these words. 12 Objection, vague, ambiguous,
13 A. Well, I signed that letter. I 13 argumentative comments.
14 didn't write them. They were prepared by my 14 EXAMINATION BY MR. BRUNO:
15 staff, but I concurred in what the staff 15 Q. -- I don't think I would, but I am
16 wrote. 16 not you.
17 Q. Well, is the statement true that 17 A. As I said, that is relating to a
18 "Foreshore dike construction is required in 18 specific problem.
19 order to prevent further MRGO bank erosion 19 Q. That's fine.
20 which would adversely affect the integrity of 20 A. It is not related to the whole MRGO.
21 adjacent levee system"? 21 Q. Never said it was. I am asking you
22 MR. LIDDLE: 22 if the statement is true. That's it.
23 Objection, vague, ambiguous. 23 Specific or otherwise, is it true?
24 THE WITNESS: 24 A. True as it relates to this public
25 In this specific location. 25 notice.

28 (Pages 106 to 109)


JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
Page 110 Page 112
1 Q. This public notice. All right. 1 Let's have the question.
2 Now, in this particular location, 2 MR. BRUNO:
3 it's true; right? 3 Let's read the question back.
4 A. Yes. 4 MR. LIDDLE:
5 Q. At this particular location the MRGO 5 Because we have no idea. The
6 is eroding the bank; isn't that true? 6 last or the last two.
7 A. Something eroded the bank, yes. 7 EXAMINATION BY MR. BRUNO:
8 Q. All right. Well, the something that 8 Q. Colonel? Which one would you like
9 eroded the bank, it says here was MRGO bank 9 to answer? Since Counsel suggests that
10 erosion. Right? That's what it says? 10 they're different, you pick one, you answer
11 MR. LIDDLE: 11 it, and then we'll answer the next one. We'll
12 Objection, vague, ambiguous. 12 go any way you want. We'll be here all week
13 EXAMINATION BY MR. BRUNO: 13 if you want to.
14 Q. And it also says that the dike is 14 A. What are the two questions?
15 going to prevent the erosion. Right? Isn't 15 Q. Well, I don't think there are two
16 that what it says here? 16 questions. Counsel thinks there's two
17 MR. LIDDLE: 17 questions. But let me ask you this question.
18 Are you -- If you want him to 18 Are you saying in that letter that the dike is
19 read the document and corroborate what 19 intended to prevent bank erosion on the MRGO?
20 you're saying -- 20 MR. LIDDLE:
21 MR. BRUNO: 21 And this letter being -- we still
22 Yes. 22 haven't marked this so --
23 EXAMINATION BY MR. BRUNO: 23 MR. BRUNO:
24 Q. Do that. I want you to tell me, 24 Yes, we have. It's Number 4.
25 since you signed it, if a person who is -- 25 MR. LIDDLE:
Page 111 Page 113
1 MR. LIDDLE: 1 Well, it's not marked.
2 Colonel Rush, listen. 2 MR. BRUNO:
3 EXAMINATION BY MR. BRUNO: 3 We have indicated on the record
4 Q. -- reading that sentence can fairly 4 that it's going to be marked after you
5 conclude that the dike is intended to prevent 5 make me a copy. It is marked for the
6 the erosion at that particular location. 6 record as 4.
7 MR. LIDDLE: 7 MR. LIDDLE:
8 Is that the question? 8 Okay.
9 MR. BRUNO: 9 MR. BRUNO:
10 Yes. 10 We gave a Bates number and we
11 MR. LIDDLE: 11 indicated that that Bates number was
12 Because that's different than 12 going to have a certain mark. That
13 what you just asked. 13 mark being Number 4.
14 MR. BRUNO: 14 MR. LIDDLE:
15 That's the question and that's 15 This is the July 15, 1976.
16 exactly what I just asked. 16 THE WITNESS:
17 MR. LIDDLE: 17 I will say that the letter of 18
18 No, before you asked him if this 18 -- 15 July, '76 is stating that this
19 document states, and then you read -- 19 foreshore dike construction is
20 presumably you read from it, and we 20 required in order to prevent further
21 can ask him. But let's have the 21 MRGO bank erosion which would
22 question. 22 adversely affect the integrity of the
23 EXAMINATION BY MR. BRUNO: 23 adjacent levee system. And that is
24 Q. Do you remember the question? 24 associated with the project location
25 MR. LIDDLE: 25 described in the paragraph above,

29 (Pages 110 to 113)


JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
Page 114 Page 116
1 which is the portion of the MRGO 1 all I have on that one.
2 between the Inner Harbor Navigational 2 MR. BRUNO:
3 Canal and Michoud Slip. 3 You want to -- Do you feel you
4 EXAMINATION BY MR. BRUNO: 4 need to attach this? Okay. And let
5 Q. Now, can you tell me whether or not 5 me have these back. We need to copy
6 from these documents the cost of that 6 some of this stuff.
7 foreshore protection dike, as it's referred 7 MR. STONE:
8 to, was paid out of the maintenance budget or 8 What do you need copies of?
9 whether it was a capital outlay? 9 MR. BRUNO:
10 A. I cannot tell you that. I don't 10 These two.
11 know. 11 MR. STONE:
12 Q. All right. Do you believe that the 12 He'll just hang on to them.
13 Corps could have built that dike with money 13 MR. BRUNO:
14 from its maintenance budget? 14 Let me just take a quick peek at
15 A. I don't know. 15 them. Now, the reason that's folded
16 Q. How would you find out? As the 16 over, Richard, is because that's the
17 District -- As the Commander of the District 17 document. Okay?
18 office, what would you do to figure that out? 18 MR. LIDDLE:
19 A. First of all, I'd have to have the 19 It's only the first three of this
20 money, and where the money came from would be 20 one (indicating). And that one
21 the source, you know. 21 entirely.
22 Q. All right. Well, if -- as the 22 (Whereupon a discussion was held
23 District Commander, you have already told me 23 off the record.)
24 you make the budget; right? 24 MR. LIDDLE:
25 A. Yes. 25 Is now a good time to take a
Page 115 Page 117
1 Q. Would you have put this in your 1 break.
2 maintenance budget or would you have requested 2 MR. BRUNO:
3 a capital outlay? 3 No, that's fine. We can take a
4 A. I don't recall. And I can't tell 4 break.
5 you at this stage 30 years later. 5 VIDEO OPERATOR:
6 Q. All right. Were you still District 6 Off the record.
7 Commander in February of '79? 7 (Whereupon a discussion was held
8 A. No. 8 off the record.)
9 Q. Let me just show you this letter 9 VIDEO OPERATOR:
10 just for completeness. PET-0111042 and 1043. 10 This is the beginning of tape 3.
11 A letter addressed by the St. Bernard Parish 11 We're back on the record.
12 Police Jury, at least it's addressed to you. 12 EXAMINATION BY MR. BRUNO:
13 And give me the date, Colonel. I forgot to 13 Q. Colonel, while we were off I gave
14 say it. 14 you some documents to look at just to give you
15 A. February 6, 1979. 15 a little heads up.
16 Q. Thank you. Is that letter familiar 16 Before I get there, I asked you if
17 to you, sir? 17 during your tenure as the District Commander
18 A. No. 18 of the New Orleans District office you were
19 Q. Okay. Do you recall any 19 aware of bank erosion. Let me ask you if you
20 communications from anybody making complaint 20 were made aware or were aware of any
21 about erosion on the banks of the MRGO while 21 deleterious effects of the MRGO.
22 you were the District Commander of the New 22 A. I don't recall any.
23 Orleans District office? 23 Q. Okay. And again, to be specific,
24 A. Not that I remember. 24 how about increased salinity of the waterways
25 Q. All right, sir. Thank you. That's 25 or marshes in the area? Is that --

30 (Pages 114 to 117)


JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
Page 118 Page 120
1 A. I don't recall that either. 1 MR. BRUNO:
2 Q. All right. Well, let me switch 2 Sure. This would be 5. No.
3 gears then to this dredging issue. Okay? We 3 This would be 6. And for the record,
4 had talked earlier this morning about the 4 VRG-3418 and 19 would be 6.
5 authorization as it relates to the depth of 5 EXAMINATION BY MR. BRUNO:
6 the channel, the width, et cetera. And I am 6 Q. The sentence "A controlling depth of
7 showing you a document there that you 7 34 feet exists in the bar channel of the
8 authored, I think, which seems to discuss that 8 MRGO." First, what is the bar channel?
9 issue. Does it? The business of the 9 A. That would be the entrance.
10 authorized depth of the channel. It's 10 Q. Okay. And controlling depth, you
11 highlighted in yellow. 11 don't know what that means relative to the
12 A. This letter -- This letter dated 19 12 authorization; right?
13 April, '76 talks about the project depth. 13 A. Not specifically, no.
14 Q. All right. Well, it talks more 14 Q. All right. Now, the next sentence
15 about the authorization, does it not? It says 15 says "This is the controlling depth for the
16 "the authorized depth". I don't have it in 16 entire MRGO project. Project depth is 38 feet
17 front of me, but that's my recollection. 17 in the bar channel and 36 feet elsewhere."
18 A. "Controlling depth" is what the 18 Can you explain to me why one sentence says 34
19 letter says. 19 and the second sentence says 38?
20 Q. Controlling depth. Well, what in 20 A. No, I can't.
21 your mind does controlling depth refer to? 21 Q. All right. Can you tell me what is
22 A. I don't know how to answer that. I 22 document Bates number NOP-8-1532 to
23 -- I -- To me, it would mean the depth to 23 NOP-8-1596?
24 which dredging would be accomplished. 24 A. It's a construction contract.
25 Q. All right. Isn't that the 25 Q. Are you sure?
Page 119 Page 121
1 authorized depth? 1 A. That's what it says.
2 A. I believe it would be synonymous, 2 Q. All right. It's a contract for
3 yes. 3 dredging.
4 Q. All right. So the authorization -- 4 A. Yes.
5 And it also, it's just I guess coincidental 5 Q. Was dredging considered construction
6 that the authorized depth is 36 feet, right? 6 by the Corps?
7 I mean, it happens to be the same. 7 A. I don't remember.
8 A. That's what it says. 8 Q. All right. But, in fact, that's a
9 Q. All right. 9 contract for dredging and the document says
10 MR. LIDDLE: 10 "Construction contract", doesn't it?
11 Objection, vague, ambiguous. 11 A. Say again?
12 EXAMINATION BY MR. BRUNO: 12 Q. The fact is that the papers before
13 Q. You know that the authorized depth 13 you are a contract for dredging and the papers
14 of the channel is 36 feet; right? 14 call it a construction contract. Isn't that
15 A. I don't know that, but it might be. 15 true?
16 Q. It might be. Well, why would you 16 A. Yes, it does.
17 use the words "controlling" then in that 17 Q. All right. Thank you.
18 letter? 18 MR. BRUNO:
19 A. I can't answer that. I don't know. 19 You want to mark this one?
20 Q. You don't know? May I have it 20 MR. LIDDLE:
21 back? 21 Sure.
22 A. (Witness hands document to Counsel.) 22 MR. BRUNO:
23 MR. LIDDLE: 23 This would be 7.
24 Could we have that marked as 24 MR. BUCHLER:
25 well, Joe? 25 No, 6. The one before should be

31 (Pages 118 to 121)


JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
Page 122 Page 124
1 5. Because we have 1, 2, 3, 4 over 1 alternative to the basic action"?
2 there. 2 A. I don't know.
3 MR. BRUNO: 3 Q. No clue?
4 Okay. That's 4. I'm sorry. So 4 A. No.
5 I misnumbered them. VRG-3418 is -- 5 Q. All right. This doesn't suggest
6 MR. BUCHLER: 6 that you all were considering closing the
7 5. 7 MRGO, does it?
8 MR. BRUNO: 8 MR. LIDDLE:
9 -- 5. And NOP-8-1532 is 6. 9 Objection, vague, ambiguous.
10 I've got work for you, Richard. 10 THE WITNESS:
11 Now you have a purpose. 11 I don't think so.
12 EXAMINATION BY MR. BRUNO: 12 MR. LIDDLE:
13 Q. Let me show you document NPM-36-302 13 Let's have that marked.
14 in seriatim to 306 and ask if you recall that 14 MR. BUCHLER:
15 document. 15 This is going to be 7.
16 A. I don't specifically remember the 16 MR. BRUNO:
17 document. 17 All right.
18 Q. Okay. Let me ask then if you 18 EXAMINATION BY MR. BRUNO:
19 remember the issue. First of all, you are a 19 Q. Colonel, are you aware of any
20 signatory to this document, are you not? 20 guidelines, be they written or not written,
21 A. Yes. 21 okay, that would regard what one should do if
22 Q. And the document is written in the 22 one proposes to dig holes near a levee or a
23 first person, "I". Does the "I" reference 23 flood protection structure?
24 you? 24 A. I don't remember them.
25 A. Yes. 25 Q. Okay. Do you recall that being at
Page 123 Page 125
1 Q. Okay. Thank you. And what would be 1 least an issue that required some further
2 the context of the Commander of the District 2 action?
3 office to issue something called a statement 3 A. Could require a permit.
4 of findings? Why would you do such a thing? 4 Q. A permit? By the Corps?
5 MR. LIDDLE: 5 A. Could be.
6 Objection, vague, ambiguous. 6 Q. Okay. And to whom would you refer
7 THE WITNESS: 7 that issue within your organization?
8 It's something that was required. 8 A. The Permit Branch in the Operations
9 EXAMINATION BY MR. BRUNO: 9 Division.
10 Q. By whom? 10 Q. All right. How about the
11 A. I don't recall. 11 Engineering Branch; would they have anything
12 Q. Do you have a sense that this is a 12 to do with that?
13 piece of paper that some regulation required 13 A. Yes, from the technical evaluation
14 you to prepare and file? Is that it? 14 standpoint.
15 A. I have no idea. 15 Q. All right. Generally did you,
16 MR. LIDDLE: 16 during your tenure, learn anything about the
17 Objection, vague, ambiguous. 17 difficulties, if any, in working in the soils
18 EXAMINATION BY MR. BRUNO: 18 of this, you know, of this area, MRGO, south
19 Q. Can you tell me what it means on 19 Louisiana in general?
20 page 2 when you say "Alternatives to the 20 A. In general.
21 proposed action consist of channel dimension 21 Q. What, if anything, did you learn in
22 alternatives and alternative procedures for 22 general about working in those soils?
23 the disposal of dredged material. The 'no 23 MR. LIDDLE:
24 action' alternative or cessation of 24 Objection, vague, ambiguous.
25 maintenance operations being the only 25 THE WITNESS:

32 (Pages 122 to 125)


JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
Page 126 Page 128
1 They're usually silt and/or clay 1 Q. That was before you looked at it,
2 deposits. They're subject to 2 though. I want you to at least look at it.
3 subsidence. 3 A. I still don't know.
4 EXAMINATION BY MR. BRUNO: 4 Q. You still don't know. All right.
5 Q. Was there any degree of difficulty 5 Fine.
6 associated with working in those soils that 6 MR. BUCHLER:
7 you understood as the Commander of the 7 We're still going to mark it
8 District office? 8 then, I guess?
9 MR. LIDDLE: 9 MR. BRUNO:
10 Objection, vague, ambiguous. 10 No, don't even mark it.
11 THE WITNESS: 11 EXAMINATION BY MR. BRUNO:
12 It depends on what the work is. 12 Q. Show you that. Do you know what
13 EXAMINATION BY MR. BRUNO: 13 that is?
14 Q. Right. Well, I mean, generally when 14 MR. BRUNO:
15 one compared working in the soils of south 15 What's the number there, Keith?
16 Louisiana to the working in the soils of New 16 MR. LIDDLE:
17 Jersey or other places where you did some 17 What do you want, just the --
18 work, and even Vietnam or Korea, was it more 18 MR. BRUNO:
19 or less difficult to work in the soils of 19 The speech.
20 south Louisiana? 20 MR. LIDDLE:
21 A. Special considerations in Louisiana. 21 The opening statement through --
22 Q. Just tell me what you mean by that. 22 MR. BRUNO:
23 A. To analyze the soil and what its 23 Well, I mean the whole thing.
24 capabilities were and such. 24 MR. LIDDLE:
25 Q. All right. Would you agree with me 25 -- the very end? It's
Page 127 Page 129
1 that it's much more difficult to work in the 1 AIN-179000001467 through 1490.
2 soils of Louisiana than most other places? 2 And he's asked you to look at --
3 MR. LIDDLE: 3 EXAMINATION BY MR. BRUNO:
4 Objection, vague, ambiguous. 4 Q. The speech.
5 THE WITNESS: 5 MR. LIDDLE:
6 It has unique problems. 6 This 1469.
7 EXAMINATION BY MR. BRUNO: 7 EXAMINATION BY MR. BRUNO:
8 Q. Okay. Which make it more 8 Q. I want to see if this will jog your
9 difficult? 9 memory at all, refresh your recollection at
10 A. Right. 10 all about the matters which are described in
11 Q. Take a look at NRG-8-1008, 9, 10, 11 the papers.
12 and my only question on this document is going 12 A. I don't remember this specifically.
13 to be there's a reference to the installation 13 Q. Well, there was a proposal to build
14 of warning devices on the Bayou Dupre control 14 a lock from the river to the MRGO. Do you
15 structure. I just want to know what that is, 15 recall that?
16 if you know. 16 A. Yeah.
17 A. I don't. 17 Q. Okay. And you gave an opening
18 Q. Okay. Did you read it? 18 statement about that at a public meeting, and
19 A. Yes. 19 those apparently are -- is the written copy of
20 Q. Oh, and it didn't -- I'm sorry. I 20 what you were to read to the folks. Is that
21 was waiting for you. 21 true?
22 A. For what? 22 MR. LIDDLE:
23 Q. To tell me what the warning devices 23 Objection, vague, ambiguous, and
24 were in your letter. 24 he's already answered that he doesn't
25 A. I said I didn't know. 25 recall.

33 (Pages 126 to 129)


JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
Page 130 Page 132
1 THE WITNESS: 1 location of that new lock and channel?
2 Say the question again? 2 A. I don't remember this at all.
3 EXAMINATION BY MR. BRUNO: 3 Q. The "this" that you're referring to
4 Q. Well, you have already told me that 4 --
5 you generally recall the fact that the Corps 5 A. This -- This map.
6 was contemplating building a channel from the 6 Q. Well, on that map would you agree
7 river to the MRGO with a lock. 7 that there is depicted a location for a new
8 A. That I recall. 8 channel and lock?
9 Q. You recall that part of it. 9 MR. LIDDLE:
10 A. Yes. 10 This map is hard to read. You
11 Q. And do you recall as part of that, 11 want to circle it and show him and ask
12 public hearings were held? Do you recall 12 him if that is where it is?
13 that? 13 EXAMINATION BY MR. BRUNO:
14 A. No, I don't specifically, no. 14 Q. Yes, I'll show you.
15 Q. All right. Would there have been 15 MR. LIDDLE:
16 public hearings held in connection with that 16 Let's do it with a pen so --
17 project? 17 We're going to have this marked and we
18 MR. LIDDLE: 18 want to know.
19 Objection, vague, ambiguous. 19 MR. BRUNO:
20 THE WITNESS: 20 (Writing).
21 There would be a public hearing. 21 EXAMINATION BY MR. BRUNO:
22 EXAMINATION BY MR. BRUNO: 22 Q. You see where I have made a circle?
23 Q. All right. And you conducted many 23 A. That's not the -- That's not the
24 public hearings while you were District 24 lock that I was thinking about.
25 Commander, didn't you? 25 Q. Where was the lock that you were
Page 131 Page 133
1 A. Yes, I did. 1 thinking about located?
2 Q. And were your remarks always -- were 2 A. The Industrial Canal.
3 they prepared in advance generally? 3 Q. Well, in your speech here you say --
4 A. Yes. 4 We have established this is your speech, that
5 Q. And is this one of those prepared 5 is, Exhibit Number -- 5?
6 remarks? 6 MR. BUCHLER:
7 A. I can assume that it is. 7 That's going to be 8.
8 Q. All right. Do you have a 8 EXAMINATION BY MR. BRUNO:
9 recollection as to why this alternate channel 9 Q. Number 8. In your speech, you say
10 was proposed? 10 --
11 A. The alternate channel? 11 MR. LIDDLE:
12 Q. Yes. 12 And I am going to object to that
13 A. Or the lock? 13 characterization. I don't think we
14 Q. Well, the alternate channel and the 14 have established -- He says he has no
15 lock. I just assumed that they were both one 15 memory of that speech.
16 and the same. 16 MR. BRUNO:
17 A. The lock -- The lock was to replace 17 No, he has established that these
18 the old Inner Harbor Navigation lock. 18 are prepared remarks and that they
19 Q. Right. But to replace that lock, 19 were his prepared marks. And they say
20 you had to first dig a channel. 20 what they say, don't they? I mean,
21 A. Probably. 21 you're not going to dispute the words.
22 Q. Well, that's -- Okay. Let me show 22 MR. LIDDLE:
23 you the map here. This is -- No, there's 23 I don't believe you have asked
24 nothing on it. Here's a map. 24 him if that document represents his
25 Does that map depict the proposed 25 remarks during that public hearing.

34 (Pages 130 to 133)


JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
Page 134 Page 136
1 My memory is he says "I don't 1 A. I thought they were.
2 remember". But he remembers the 2 Q. I thought you said that, too. So
3 general issue of the lock. 3 anyway, all of that to get to here.
4 MR. BRUNO: 4 These are prepared remarks for a
5 Well, no, no, no, let's not 5 hearing. It describes very clearly what the
6 testify. 6 prepared remarks are for. Right? I mean it
7 MR. LIDDLE: 7 says right on the front page, does it not?
8 Well, then ask a question. 8 MR. LIDDLE:
9 MR. BRUNO: 9 Objection, vague, ambiguous.
10 No, no, no. We have already got 10 Well, why don't you show him the
11 a record. Okay? And your memory of 11 document.
12 the record may be different from mine. 12 MR. BRUNO:
13 MR. LIDDLE: 13 I am showing him the document.
14 Well, let's ask a question. 14 He's looking at it.
15 MR. BRUNO: 15 MR. LIDDLE:
16 No, I already asked the 16 Why don't you let him hold it. I
17 question. You're suggesting the need 17 mean, --
18 for additional questions. 18 MR. BRUNO:
19 MR. LIDDLE: 19 Let him hold it?
20 Well, you started out by 20 EXAMINATION BY MR. BRUNO:
21 testifying by saying what we have 21 Q. Do you need to hold the document?
22 established. 22 That's fine. Take as long as you like. Okay?
23 MR. BRUNO: 23 Let's take another hour or two if you want.
24 And I have a record that I can 24 Look at the document, satisfy yourself that it
25 stand on. 25 is what it is, because I am not going to play
Page 135 Page 137
1 MR. LIDDLE: 1 this game about what it is or what it isn't.
2 That's fine, and he doesn't have 2 MR. BRUNO:
3 to say -- 3 And if we have to call the
4 MR. BRUNO: 4 Magistrate, I'll do it right now.
5 And he can answer the question or 5 Okay?
6 he can't answer the question. The 6 MR. LIDDLE:
7 only thing you can do is object to the 7 This is not an authenticity --
8 form of the question, nothing more. 8 MR. BRUNO:
9 You're making a speaking objection and 9 No, it is what it is. Okay? I
10 it's unfair and inappropriate. 10 mean, if he --
11 MR. LIDDLE: 11 MR. LIDDLE:
12 What's inappropriate is you 12 It's not an authenticity fight
13 testifying, telling him what was 13 here. He can't --
14 establish. 14 MR. BRUNO:
15 MR. BRUNO: 15 Then let him answer the
16 No, my question was simply -- My 16 question. Are you going to tell me
17 question which is this document, which 17 that the document is not authentic
18 the witness has already identified as 18 now?
19 prepared remarks, he already 19 MR. LIDDLE:
20 identified it as that. 20 I'm not testifying.
21 MR. LIDDLE: 21 MR. BRUNO:
22 That's what I object to. 22 Well, what are you saying? The
23 EXAMINATION BY MR. BRUNO: 23 document is authentic? Are you
24 Q. Well, did you not identify this as 24 telling me that document is not
25 prepared remarks for a public hearing? 25 authentic?

35 (Pages 134 to 137)


JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
Page 138 Page 140
1 MR. LIDDLE: 1 me it's authentic.
2 No. I'm not testifying. 2 MR. LIDDLE:
3 MR. BRUNO: 3 I haven't told you it was
4 If it's authentic, then I can 4 authentic. I haven't told you that.
5 rely on what it says. 5 MR. BRUNO:
6 MR. LIDDLE: 6 What's your objection?
7 It -- 7 MR. LIDDLE:
8 MR. BRUNO: 8 State the question.
9 It's produced by you. You 9 MR. BRUNO:
10 produced that to me. 10 No, what is your objection?
11 MR. LIDDLE: 11 MR. LIDDLE:
12 I am not -- I am not denying its 12 I don't know what the question is.
13 authenticity. 13 MR. BRUNO:
14 MR. BRUNO: 14 Well, then you need to -- Here,
15 If you're not denying its 15 take your time and read the record
16 authenticity, then I have the right to 16 here if you like.
17 rely on the words that are contained 17 EXAMINATION BY MR. BRUNO:
18 therein. 18 Q. You got it yet, Colonel? Can you
19 MR. LIDDLE: 19 and I agree what this is?
20 But the reflection -- 20 A. I believe that they're remarks that
21 MR. BRUNO: 21 were prepared for me for a public hearing.
22 And I have the right, therefore, 22 Q. All right. Fair enough. Can we
23 to ask this witness about a question 23 agree that these prepared remarks regard a
24 about the words that are contained 24 public meeting on the Mississippi River Gulf
25 therein. 25 Outlet new ship lock and connecting channels
Page 139 Page 141
1 MR. LIDDLE: 1 project? Can we agree on that?
2 Of course you do. 2 A. I don't remember it, but yes, I can.
3 MR. BRUNO: 3 Q. I understand. Counsel says it's
4 I have a right to ask this 4 authentic now. So -- And it's Tuesday, 29
5 witness what these words are, and he's 5 March, 1977. Right?
6 already testified that these words are 6 A. Yes.
7 a prepared remarks for a public 7 Q. You're still the District Commander;
8 hearing. Now, I have to tell you, if 8 right?
9 we keep this up I'll call the 9 A. Yes.
10 Magistrate. I'm not going to go this 10 Q. Okay. And it says on here that the
11 route. It is what it is, and you're 11 welcome is going to be done by Colonel Early
12 unnecessarily complicating and 12 J. Rush. It says right there on the front
13 confusing this record. 13 page. Right?
14 MR. LIDDLE: 14 A. Yes.
15 It's unclear whether you're 15 Q. Okay. And we got some opening
16 asking him to authenticate this 16 statement remarks and it says on this opening
17 document. 17 statement that "The existing lock, be it
18 MR. BRUNO: 18 judged obsolete and that it could no longer
19 I thought you said there was no 19 efficiently perform its function of passing
20 need to authenticate the document. 20 navigation due to its age and condition." Do
21 MR. LIDDLE: 21 you have any recollection of that being the
22 Yes, but it's unclear whether 22 feeling, your feeling at the time?
23 you're asking him to do it. 23 A. Industrial Canal lock, yes.
24 MR. BRUNO: 24 Q. Okay. Thank you, sir. Now, it says
25 I am not. You are. And you told 25 here that "Construction at the Industrial

36 (Pages 138 to 141)


JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
Page 142 Page 144
1 Canal site would be more expensive and cause 1 Objection, vague, ambiguous.
2 greater social and industrial dislocations, 2 MR. BRUNO:
3 but would solve the bridge and marine 3 Fine.
4 congestion problems and cause little 4 THE WITNESS:
5 ecological damage." Do you recall that being 5 Don't know.
6 the general feeling at the time? 6 EXAMINATION BY MR. BRUNO:
7 A. I really don't recall that, Mr. 7 Q. You don't know?
8 Bruno. 8 A. No.
9 Q. Fine. Fair enough. It says that 9 Q. No? No idea? So it would be
10 "It is envisioned that the Federal features 10 unreasonable to conclude that this speech that
11 of this work will consist of a new 150 foot 11 I just read refers to what I have circled on
12 wide by 1,200 foot long by 50 foot deep lock 12 this map; right? You don't know?
13 and its appurtenances, channels connecting the 13 A. I really don't know.
14 river to the Gulf Outlet, return levees and/or 14 Q. No clue. All right?
15 floodwalls as appropriate along the full 15 MR. LIDDLE:
16 lengths of the fore and tail bays, a navigable 16 Objection, vague, ambiguous.
17 flood gate to accommodate small boat access to 17 EXAMINATION BY MR. BRUNO:
18 the Violet Canal and bridges not to exceed a 18 Q. No problem. Would you agree with me
19 cost of $71.5 million." Now, doesn't that 19 that this map which shows a channel between
20 reflect that what's being discussed here is a 20 the river and the MRGO, all right, also shows
21 channel at the Violet location? 21 the construction of a hurricane protection
22 A. I really don't remember. 22 levee along the shore of Lake Borgne? Just
23 Q. All right. It says here "To 23 that that's what's there on the map?
24 resolution of the problem --" I'm sorry. 24 A. It's on the map.
25 "The major problem has been selecting a site 25 Q. Okay. Do you have any recollection
Page 143 Page 145
1 for the new lock." Do you recall that there 1 whatsoever about why this map contains an
2 was an issue as to where the new lock should 2 indication for a levee at the shore of Lake
3 be located? 3 Borgne?
4 A. Afraid I don't. 4 A. My only conclusion is that the map
5 Q. Okay. Well, is it fair for me to 5 is related to the -- the hurricane protection
6 conclude by reading the following, "The major 6 project.
7 problem has been selecting a site for the new 7 Q. All right. As an engineer, would
8 lock and it's currently believed that the 8 you agree with me that the Violet Canal, what
9 critical path to resolution of the problem 9 I am choosing to call the thing in the circle,
10 lies with the reduction of environmental and 10 has no connection with the hurricane
11 socio-economic impacts. The New Orleans 11 protection levees indicated on the map?
12 District site selection report has been 12 MR. LIDDLE:
13 reviewed by the Division Engineer who has 13 Objection, vague, ambiguous.
14 concurred in that there is not unanimous 14 THE WITNESS:
15 support at the local level for any of the 15 I don't know.
16 available sites. However, the Violet site, 16 EXAMINATION BY MR. BRUNO:
17 lower site, St. Bernard Parish, is cost 17 Q. All right. Can you envision why, if
18 effective, it will cause a minimum of social 18 in fact this map depicts the possible
19 disruption. While construction at this site 19 construction of a channel from the MRGO to the
20 will cause environmental damage, on balance it 20 river at Violet, can you think of any
21 is thought to be the most acceptable location 21 engineering reason why such a construction
22 for the project," could a reasonable reader of 22 would require the construction of a levee
23 this -- of these words conclude that this 23 along the shore of Lake Borgne? Can you
24 refers to a channel and lock at Violet? 24 imagine or think of any possible reason for
25 MR. LIDDLE: 25 that to be necessary?

37 (Pages 142 to 145)


JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
Page 146 Page 148
1 MR. LIDDLE: 1 A. No, I don't.
2 Objection, vague, ambiguous. 2 Q. Okay. In the first draft, which is
3 THE WITNESS: 3 at page VRG-76-765, it says "The time required
4 I don't know. The levee along 4 to complete a new environmental impact
5 Lake Borgne was to be a part of the 5 statement on the Lake Pontchartrain hurricane
6 hurricane protection project, the 6 protection project has to be evaluated" and it
7 barrier plan. 7 says "to accomplish studies to level of
8 EXAMINATION BY MR. BRUNO: 8 reliability we consider it necessary would
9 Q. Well, that's -- 9 require from 21 to 24 months." That's on this
10 A. And then how that tied in, you know, 10 page. Then in the other draft at page 2 it
11 relative to this lock thing, I don't know. 11 says "I agree with General Marshall's
12 Q. Right. 12 determination that 36 months will be needed to
13 A. I don't remember. 13 produce a revised environmental impact
14 Q. It's your recollection that the 14 statement". Do you have any reason, or do you
15 location of the levee on the barrier plan was 15 have any understanding as to why the numbers
16 along the shore of Lake Borgne? 16 are different between these two drafts?
17 A. I thought it was. 17 A. I don't have any idea of, you know,
18 Q. Okay. Wasn't that called the 18 why they would be different.
19 Chalmette area plan? That is, that really the 19 Q. I show you document number
20 barrier plan didn't even include Chalmette? 20 AFW-321-395 to 402. It appears to be a
21 It had its own plan? 21 transcript of testimony before Senator
22 A. I don't remember. 22 Stennis. Again, I am just showing it to you
23 Q. Okay. That's fine. 23 to see if it refreshes your recollection.
24 MR. BRUNO: 24 A. I don't remember this at all.
25 We mark these? Make some 25 Q. That's why I showed it to you
Page 147 Page 149
1 copies. 1 first. No memory? It seems to regard the
2 EXAMINATION BY MR. BRUNO: 2 MRGO.
3 Q. Let me show you this document. It 3 A. No memory -- No memory and it was
4 starts VRG-76-764 in seriatim to 773. 4 before I went to be the New Orleans District
5 A. So what's the question? 5 Engineer.
6 Q. All right. The first always is, do 6 Q. We see your name on there; right?
7 you recollect these documents at all? 7 A. I see it on there, but --
8 A. No, I don't. 8 Q. All right. I didn't make up these
9 Q. All right. Would you agree, though, 9 documents. I got them from the government
10 that this is a letter by you to HD -- I'm 10 just the way you see them.
11 sorry, HQDA which says "In accordance with 11 All right. That's fine. If you
12 your verbal request, enclosed is a draft reply 12 have no memory, you have no memory. It seems
13 to Congressman Livingston's letter to Major 13 to -- It seems to regard the MRGO and it seems
14 General Charles McGinnis. A copy of 14 to discuss this alternate route for a lock.
15 Congressman Livingston's letter is also 15 So if you have no memory, you don't.
16 enclosed"? That's what it is; right? 16 A. No memory at all on that.
17 MR. LIDDLE: 17 MR. BRUNO:
18 Objection, vague, ambiguous. 18 Okay. It's 12:00 o'clock. I
19 THE WITNESS: 19 keep my promise. Thank you.
20 That's what the letter says. 20 THE WITNESS:
21 EXAMINATION BY MR. BRUNO: 21 Well, thank you, sir.
22 Q. The letter says. I'm just curious 22 VIDEO OPERATOR:
23 to know if -- You'll see here there are two 23 Off the record.
24 drafts. Do you know which draft was sent to 24 * * *
25 HQ? 25

38 (Pages 146 to 149)


JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
Page 150
1
2 WITNESS'S CERTIFICATE
3
4 I, EARLY J. RUSH III, read or have
5 had the preceding testimony read to me, and
6 hereby certify that it is a true and correct
7 transcription of my testimony, with the
8 exception of any attached corrections or
9 changes.
10
11
_____________________
12 (Witness' Signature)
13 ____________
DATE SIGNED
14
15 DEPONENT PLEASE INITIAL ONE:
16
_____ Read with no corrections
17
18 _____ Read and correction sheet attached
19
20
DATE TAKEN: MAY 9, 2008
21
22
23
24
25
Page 151
1
2 REPORTER'S CERTIFICATE
3
4 I, ROGER D. JOHNS, RMR, RDR, CRR,
5 Certified Court Reporter, do hereby certify
6 that the above-named witness, after having
7 been first duly sworn by me to testify to the
8 truth, did testify as hereinabove set forth;
9 that the testimony was reported by me in
10 shorthand and transcribed under my personal
11 direction and supervision, and is a true and
12 correct transcript, to the best of my ability
13 and understanding; that I am not of counsel,
14 not related to counsel or the parties hereto,
15 and not in any way interested in the outcome
16 of this matter.
17
18
19
20 ROGER D. JOHNS
21 CERTIFIED COURT REPORTER
22 STATE OF LOUISIANA
23
24
25

39 (Pages 150 to 151)


JOHNS PENDLETON COURT REPORTERS 800 562-1285

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