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Page 1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
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.
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)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
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)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
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)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
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.
12 (Pages 42 to 45)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
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
13 (Pages 46 to 49)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
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)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
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)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
EARLY J. RUSH, III May 9, 2008
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)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
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)
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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?