Free Motion to Amend Pleadings - Rule 15 - District Court of Federal Claims - federal

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MOTION AND INCORPORATED MEMORANDUM EXHIBIT 2

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ROCCO TOMMASEO, ET AL. PLAINTIFFS VERSUS 1:05-CV-1119 SGB HON. SUSAN G. BRADEN

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (ATTORNEYS FOR THE DEFENDANT, THE UNITED STATES) REPORTED BY: CATHY RENEE POWELL, CCR PROFESSIONAL SHORTHAND REPORTERS (504)529-5255 U.S. DEPARTMENT OF JUSTICE (BY: FRED R. DISHEROON, ESQUIRE MARK T. ROMLEY, ESQUIRE) 601 D STREET, NW WASHINGTON, D.C. 20044-0663 THE UNITED STATES, DEFENDANTS

VIDEOTAPED DEPOSITION OF EDWARD ROBIN, SR., 2324 FOREST LAWN HIGHWAY, YSCLOSKEY, LOUISIANA 70085, TAKEN IN THE OFFICES OF F. GERALD MAPLES, P.A., 902 JULIA STREET, NEW ORLEANS, LOUISIANA 70113, ON THE 13TH DAY OF JUNE, 2007. APPEARANCES: F. GERALD MAPLES, P.A. (BY: CARLOS A. ZELAYA II, ESQUIRE) 902 JULIA STREET NEW ORLEANS, LOUISIANA 70113 (ATTORNEYS FOR THE PLAINTIFFS, ROCCO TOMMASEO, ET AL.)

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VIDEOGRAPHER: BRIAN SOILEAU PROFESSIONAL SHORTHAND REPORTERS

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Exhibit No. 14 * * * ALSO PRESENT: GEOFF WEBSTER JENNIFER A. LABOURDETTE

EXAMINATION INDEX EXAMINATION BY MR. ZELAYA: .......... EXAMINATION BY MR. DISHEROON: ....... EXAMINATION BY MR. ZELAYA: .......... * * * 4 32 49

INDEX OF EXHIBITS ..................... 43

Map of Violet Canal with locations marked by Mr. Robin.

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THE VIDEOGRAPHER: Today is the thirteenth day of June, 2007. 11:05. The time is approximately

This is the videotaped deposition of

Edward Robin, Senior, taken at the offices of F. Gerald Maples, located at 902 Julia Street, New Orleans, Louisiana, for the case entitled "Rocco Tommaseo, et al. versus the United States," in the United States Court of Federal Claims, Case 1:05-cv-1119 SGB. Will counsel please introduce themselves and which parties they represent. MR. ZELAYA: Carlos Zelaya of F. Gerald Maples, P.A., on behalf of the plaintiffs. MR. DISHEROON: Fred Disheroon with the United States Department of Justice, for the United States, and with me is Mark Romley, R-O-M-L-E-Y, also with the Department of Justice, for the United States. * * *

EDWARD ROBIN, SR., having been first duly sworn as a witness, was examined and testified as follows:

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EXAMINATION BY MR. ZELAYA: Q. Good morning, Mr. Robin. Would

you please state your full name and current address for the record? A. Sr., Full name is Edward John Robin,

2324 Forest Lawn Highway, St. Bernard,

Louisiana 70058. Q. And can you just give us some

rough idea of where that address is on Forest Lawn Highway in St. Bernard Parish? A. Q. All the way down in Yscloskey. That is basically in the

eastern-most portion of St. Bernard Parish? A. Q. Right. Mr. Robin, what is your background

in terms of where you have lived during the course of your life; where were you born and where did you grow up? A. I was born in New Orleans, but

raised in Yscloskey all my life. Q. A. Q. A. Q. And how old are you, sir? Eighty-one. What is your date of birth? Three-9-26. Are you married?

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A. Q. A. Q.

I was. Do you have any children? Nine. What have you done for your

profession in the course of your life? A. All my life, I have been a

fisherman and a trapper. MR. DISHEROON: Excuse me. MR. ZELAYA: Trapper. THE WITNESS: Trapped muskrats, otters, coons. EXAMINATION BY MR. ZELAYA: Q. What type of commercial fishing Did he say trapper?

have you done? A. Practically everything. Shrimp,

crabs, oysters. Q.

Mostly oysters now.

And when did you enter into that

profession, at what age? A. Q. Thirteen. And have you engaged in that

profession basically your entire life since that point? A. Yes.

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Q.

In addition to doing commercial

fishing as your livelihood, do you ever have occasion to fish recreationally? A. Q. A. Q. Oh yeah, very much. Hopefully more so now than before? More now, right. Would you say, sir, that you are

familiar with the waterways in Lower St. Bernard Parish? A. Q. Quite a bit, yes. And do you, in fact, have a

familiarity with the Mississippi River Gulf Outlet? A. Q. Yes, I have. Is there another name by which

people refer to the MRGO? A. Q. Just the channel, gulf channel. And do they pronounce it "Mister

Go," when they are referring to the Mississippi River Gulf Outlet? A. Q. Right. I just wanted to establish that

convention, because sometimes I may refer to the M-R-G-O, or the MRGO, and I'm talking about the Mississippi River Gulf Outlet. Is

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that okay? A. Q. Right. Are you familiar with that

channel, sir? A. Q. Very much. Do you have a recollection of when

that channel was constructed? A. I would say in late '65, or

something like that, maybe a little later when it was completed. Q. Okay. Were you familiar with the

area of where the MRGO is now located prior to the construction of the MRGO? A. Q. Right. What was the general geography of

that area, what type of land was it before the MRGO was constructed? A. Before the MRGO, well, they had a

lot of hills with nice trees and cypress trees, oak trees. there. Q. A. Q. A. Were there cypress swamps? Oh, yeah. Did it also contain marshlands? Right, yes. You had levees all up in

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Q.

Did you ever have occasion to

enter into those marsh areas? A. Q. trapping? A. Q. That's where I done my trapping. Have you basically resided in St. Oh, yeah. Is that where you did your

Bernard Parish from the time of the construction and completion of the MRGO until the present day? A. Q. Yes. Has that geographic area we have

talked about changed over that period of time? A. Q. Quite a bit, yes. Quite a bit.

Can you describe those changes,

what you have observed? A. Before, they used to have levees

down there with trees and high grass and everything, which would stop the surf from coming from the outside and the Gulf. would protect the wind and that too. As of today, there is no more levees, they are gone. has sunk. Seems like the land All they It

All the trees is gone.

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got left is stumps, because they're dead. Q. A. Q. What about the marsh grasses? Marsh is the same way. What about the wildlife that you

used to trap? A. That's gone. The muskrats is In

gone, they have very few otters left. other words, it don't pay you to trap

because there is not enough animals to trap anyway. Q. When you describe levees in the

area by the trees, are you referring to manmade levees or something different? A. No. Well, some of it was manmade,

yes, by digging out the canals and making a levee. And that's where the trees grow But all of that

from, the cypress trees.

was considered because of having sweetwater and that's how it grew. more sweetwater. Q. When you say "sweetwater," what Today, there's no

are you referring to? A. Brackish water and sweetwater

is -- that's where the trees and that will grow from. Trees do not grow in saltwater.

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The marshlands that they had, the marsh that they had had cypress trees naturally caused from sweetwater. Now, when the saltwater

came in there, that's what killed it off. Q. that area? A. the MRGO. Q. And are you familiar with the Most of it came in since they dug How did the saltwater come into

length of the MRGO, where it originates in the city -A. Q. Parish? A. Q. Yes. And prior to the construction of Oh, yes. -- and where it exits St. Bernard

the MRGO, was there any such direct channel from Lower St. Bernard where you are into the City of New Orleans? A. Q. A. Q. At that time, no. Okay. Not before the channel. I'm going to talk about a slightly

different geographic area in Chalmette, where the -- the intersection of Paris Road

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and the Mississippi River Gulf Outlet. you familiar with that area? A. Q. Very much. At this point, as we sit here

Are

today, how are you able to cross the Mississippi River Gulf Outlet? A. Q. A. Before? Now. Today. Is there a bridge?

They got the Green Bridge, what we

call the Green Bridge that goes over the Intracoastal Canal. Intracoastal Canal. Q. Is basically the location where The MRGO goes into the

that bridge is, what you refer to as the Green Bridge, is that where the Mississippi River Gulf Outlet intersects with the Intracoastal Canal? A. Q. Right. And those channels then converge

and lead into the City of New Orleans? A. Q. Right. In that area along Paris Road,

what was it like before the construction of the Mississippi River Gulf Outlet? A. It was all cypress trees. It was

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all cypress trees and marsh and hills. Levees. Q. A. What is that area like today? It's -- it's all gone now. The

only thing they got there is a couple of willow trees. The cypress trees is gone. The animals that used to

The marsh is gone.

be there before, they're not there. Q. Okay. Now, I want to go back to

the time of the construction of the Mississippi River Gulf Outlet, which I think you identified was in the mid-'60s or so. A. Q. Yes. In that period of time, did you

have occasion to observe when the MRGO was being constructed, as they were actually digging out the channel? A. Q. Yes. And at the time of the original

construction, how wide was the Mississippi River Gulf Outlet? A. When they started digging, it was I think it was about 40 feet

500 feet wide. deep. Q.

And do you know how wide it is

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now, at that same location you were referring to? MR. DISHEROON: Excuse me. I'm entering an

objection to your use of the term "width," because you are apparently using a different definition than that contained in the project authorization; that you are just speaking about the physical width of the top of the waterway and you are tying it to the project, which we do not believe is appropriate. But, just so it is clear on the record what you are asking him about. MR. ZELAYA: I will try to clarify that in case you are confused, Mr. Disheroon. EXAMINATION BY MR. ZELAYA: Q. Mr. Robin, when you just answered

my question about the width of the MRGO, tell me what you were referring to as the width. A. How wide it is from one beacon to You got the port beacon From one beacon

the other beacon.

and you got the starboard.

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to the other beacon was 500 feet wide. Q. And has that width that you

referred to changed over the years? A. Very much. The beacons is still

500 feet apart, but the land that's ate up equals about 1,500, maybe 2,000 feet in places. Q. Now, have you noticed a change in

the reference to those beacons and their distance to the shore? A. Beach. Quite a bit. Especially Shell

One beacon was on land and now I

would say it is about a thousand feet out in the water, maybe more. Q. To your knowledge, has that beacon

been physically moved, did somebody pick it up and move it? A. Q. A. Q. No. Okay. No. Now, you have talked about the

loss of the marsh grasses and the cypress trees, and what have you observed in terms of the saltwater that led to the death of those swamp environments?

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A. about. Q.

I don't recall what you're talking

Well, have you seen the actual

loss of vegetation? A. Oh, yeah. Yeah. Quite a bit.

You go right now and see what they've It is all dead trees, and then

got left.

they got stumps from the trees, the roots, but all the grass and all that, and trees, that's all dead. Q. Now, has that change in the

existence of the swamp trees and the grasses that you have described, is that something that happened, like, you went to bed one night and you woke up the next day and it was suddenly different, or was that something that happened gradually, over time? A. No, that happened gradually, over What I have noticed, too, now, that

the land -- the land has been sinking, especially where I live at. Where I live

at, down below, we used to have a baseball field right behind the house. cars and that back there. We drove our

Today, when we

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get a good northeast wind blowing and an east wind, it is one lake. Q. When you referred to a northeast

wind that blows, are you referring to a hurricane or just regular weather? A. No, just regular weather. Just

regular -- anytime they got an east wind blowing or a north wind blowing and you come down there, you are going to see what I'm talking about. On normal tide, it's dry, but when the northeast wind comes in, it's going to be nothing but water. Q. So, that land, where is that land

located you are describing? A. Q. Right behind my home. And is that more susceptible now

to flooding than it was before? A. Q. Right, right. Now, have you noticed a change in

the frequency and the duration of that flooding that you have just described for the past -- since, say, 2000? MR. DISHEROON: I'm going to object to your use of

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the term "flooding" unless you define it, as what the witness seemed to refer to was simply the tidal influence, and not what you would typically consider a flood. EXAMINATION BY MR. ZELAYA: Q. Mr. Robin, I will ask you to use

your words and describe for me what you have seen in terms of the water entering this land, as you just described. I'm not trying

to put words in your mouth, but you tell me what you perceive that to be. A. now? Q. A. Yes, sir. Before, it would take a little What, the water coming in there

hurricane or bad weather to come in and flood the ground. Today, you don't have to

have no hurricane, all you have to have is strong northeast winds and east winds and it is all flooded. More so now. Q. I'm going to ask you to direct It wasn't like that before.

your attention to the passage of Hurricane Lili. Do you remember when Hurricane Lili

passed in 2002?

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A. Q.

Yes, yes. Was there flooding as you have

described associated with the passage of Hurricane Lili? A. flooding. Q. A. Q. Yes, there was flooding. Not that much. Okay. But there was flooding. Now, using that as a point of It was

reference for time, has the flooding as you have described and the intrusion of water gotten worse since the passage of Hurricane Lili? A. Q. A. Q. Very much, yes. Has it occurred more frequently? Yes. And has it been a greater amount

of water that has entered the land? A. Q. Much more. Now, with reference to the passage

of Hurricane Ivan, do you recall that hurricane in 2004? A. Q. Yes. Was there an influx of water

associated with that hurricane?

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A. Q.

Yes. Comparing the water in 2004 from

Hurricane Ivan to the water with Hurricane Lili, which one was worse? A. Q. A. Q. In '4. 2004? Yes. And you are referring to Hurricane

A. Q.

Right. I'm going to turn to an even more

recent event, the passage of Hurricane Katrina. I'm sure you remember the passage Would you tell us where

of that hurricane.

you were when Hurricane Katrina passed Louisiana? A. For all the hurricanes that they

have had, I have never left from Yscloskey. I stood in my boats in every hurricane that they had except Katrina. I moved all my

boats up the Violet Canal behind the locks. Q. When you refer to your boats, are

you referring to your commercial fishing vessels? A. Right. My oyster boats.

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Q.

And you relocated those for

Katrina where? A. Q. In the Violet Canal. And tell me what happened as the

storm passed. A. I stood with all of my boats. One

of my sons stood in his house, my other son stood in his house, and my other son stood in their house. And their homes is one on

Judge Perez, one is in Poydras, and the other one is in South Lake. Q. Let me interrupt you a moment.

Whose house was in Poydras? A. Q. A. Brad and Don's. And those are two of your sons? Right. Only one son stood.

MR. DISHEROON: Could you get the location of those areas, those names? proximity to his residence? MR. ZELAYA: I will try. Poydras is a Where they are in

location, just so you understand. MR. DISHEROON: I know, but I don't know where it

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is in relation to where he is. THE WITNESS: It is on Highway 46. MR. DISHEROON: That was my point. EXAMINATION BY MR. ZELAYA: Q. Is Poydras closer to the City of

New Orleans than Yscloskey? A. Q. Oh, yeah. And is Poydras closer to Chalmette

than Yscloskey? A. Q. Yes. But Poydras is between Chalmette

and Yscloskey, correct? A. Q. Right. And you said it is on Louisiana

Highway 46? A. Q. Highway? A. Right. Right. Which is also known as St. Bernard

MR. ZELAYA: Mr. Disheroon, does that help you get a better reference? MR. DISHEROON:

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As to that one, yes, but he mentioned two other locations, the other sons. MR. ZELAYA: I'm going to get to those right

EXAMINATION BY MR. ZELAYA: Q. You also talked about your son's Is that correct?

property on South Lake. A. Q. A. Q. Right.

And whose property is that? That is Chris'. And where is that property located

relative to either Yscloskey or Poydras? A. Q. That is right off of Judge Perez. And Judge Perez is a main

thoroughfare through St. Bernard Parish? A. Q. property. A. Q. A. Right. And you referred to another Where was that one? Pete's. Where is Pete's property located? Pete's is right off of Judge

Perez, closer to Yscloskey, though. Q. Okay.

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MR. ZELAYA: This may help. I have a little

map that will give us some quick references. EXAMINATION BY MR. ZELAYA: Q. Mr. Robin, take a look at this

Can you locate Yscloskey on the map? A. Q. Yes. If you would, just put an

underline under where Yscloskey is located. And can you locate Poydras on the If you would underline that. And you said that the other houses of Chris and Pete were between Poydras and Yscloskey. A. Is that correct? Pete's house is -- Pete's house

should be around here. Q. Would you just put an "X"

approximately where Pete's house is located. A. Q. That's it, right there. And if you would put a "P" above

that "X", so we will know you were referring to Pete. Okay. Now, you said your sons

were located in their respective homes when the hurricane passed, but you were on the

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family fishing vessel, correct? A. Q. day. A. The only one I could keep in touch Right. I was on the boat.

Now, tell me what happened that

with through telephone would be my son Don. Don was in Poydras. My son Pete that was

in -- off of Judge Perez, I couldn't communicate with him, and I couldn't communicate with Chris, but Don could communicate with them. So, all during the night, I kept in touch with him and he kept in touch -- we kept in touch with one another. Q. Okay. Now, what happened in the

early morning of 29 August 2005? A. Okay. The hurricane -- the lights I had the At

went out at 4:00 in the morning.

TV on at all times watching the weather. 4:00, the lights went out. When the

hurricane comes, it comes from the northeast. After the eye passes, the wind

comes from the southeast. That morning, at 4:00, when the lights went out, that's when I called my son

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up, Don, and asked him how things was going. He said, "Dad," he said, "everything is gone." He said, "Looks like," he said,

"that it's calming down." I said, "No, honey, it's not calming down. It's calming down now because

the eye is over us," I said, "but watch when it switches." I said, "When it switches,

it's going to come stronger." Mind you, I told them since they didn't want to stay in the boat with me, I told them to make sure that they put an outboard motor by each one of their houses, because you never know what might happen. Around daylight is when I was in the boat. I never did sleep all during the When I looked to the

night, naturally.

highrise, the bridge, I seen about -- to me, it looked like about a 5- or 6-foot swell coming down the canal. MR. DISHEROON: Excuse me, what bridge are you referring to? EXAMINATION BY MR. ZELAYA: Q. What bridge are you describing?

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A.

The bridge that goes over the The highrise. We call it the

Violet Canal. highrise. Q.

Is that the bridge that crosses

the Violet Canal on Judge Perez Drive? A. On Judge Perez, right. Right on

Judge -- that's where we had the boats tied, right there by the bridge. MR. DISHEROON: Could he locate that on the map, please? EXAMINATION BY MR. ZELAYA: Q. Can you see the area where the

bridge would be located that you are describing? A. I would say the bridge would be

about right here. Q. A. Right about the "T" in Violet? Where it says "Violet" there, I would say about right here is where Because this is the

the bridge should be.

outlet that goes into the MRGO. Q. And if you could, just draw a

circle where you just referenced. A. Where the bridge was?

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Q.

Yes, sir.

And I'm just going to

write in the word "Bridge." A. Q. Okay. Okay. You said you looked toward

the bridge and you saw water? A. To me, it liked like, I don't

know, 5 or 6 feet, a swell that was coming. When I seen it -- I had my truck behind the levee. When I seen it coming, I

run for my truck to run it on top of the levee, thinking I would save it. About the

time I got to the truck and got it back to the levee, when I got to the truck, I was up to here in water (indicating). Q. The boats --

When you were referring to the

height of the water, you said right at above the level of your waist; is that what you were referring to? A. When I got out of the truck, the

water was up to here on me (indicating). The boats was already on top of the levee. Now, mind you, before that swell came in there, or the surge, whatever you want to call it, it was about 4 feet below. By the time I got out of the truck and got

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to the levee, it was about 5 feet up on top already. All the boats was up there. I got to the boat, and on the side of the boat we got what we call a bumper, to stop one boat from hitting the other, with a rubber tire on it. I made a pass at the

rubber tire and I missed it the first time. And then, when the boat came back on me again, that's when I grabbed it. Q. At this point, were you walking or

swimming or what were you doing? A. I was up to here in water I was swimming, trying to get Finally, I

(indicating).

to that tire to get on my boat.

grabbed it and I climbed on the boat. When I climbed on the boat, I looked for my truck. My truck wasn't there. Three days

I never seen the truck no more. later is when I seen the truck. Q.

Let me interrupt you a moment.

When you described the wall of water that was 5 or 6 feet high that was approaching you, was that coming from the direction of the MRGO? A. Right, right. Yes.

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Q.

And how long of a period of time

was it from the time you first observed that wall of water until you got to your boat? A. minutes. Q. I'm going to now direct your Shoot, man. Minutes. A matter of

attention to just a month later, approximately in September of 2005, when another hurricane passed through Louisiana. A. Q. Rita. That was Hurricane Rita. Do you

recall that? A. Q. A. Q. Yes. Where were you for Hurricane Rita? I was in Baton Rouge. Did you have occasion to return to

Lower St. Bernard? A. Q. Yes. And did you observe flooding

associated with the passage of Hurricane Rita? MR. DISHEROON: Could you clarify when, that is, how long after Rita he was there? MR. ZELAYA:

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I will get there. MR. DISHEROON: All right. MR. ZELAYA: And you will certainly have your turn, Mr. Disheroon, as well. MR. DISHEROON: Well, it would just be easier if you would do it now. EXAMINATION BY MR. ZELAYA: Q. You were about to describe for me

the flooding that you associated with Hurricane Rita. A. It was about the same thing, maybe

Now, when was it that you made

these observations, or when did you come back to St. Bernard? And we're talking

about after Hurricane Rita. A. six days. After Katrina, I stood on the boat Rita hit just about the month -That's when Rita

25 days to a month after. hit.

If Rita would have took the same path as Katrina, there wouldn't have been

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nothing left. Q. And how long after Rita hit was it

before you returned to St. Bernard, when you saw that flooding the second time? A. Q. A. I think it was a couple of weeks. Okay. They didn't leave us come back,

and all our boats was tied up with nobody on it. Q. Did you return to St. Bernard in

the period of time between the passages of Hurricane Katrina and Rita? A. Q. No. Okay. I came back after Rita. When you came back after

Rita, there was still flooding? A. Q. Oh, yeah, yes. Okay. Very much.

Now, has that flooding that

you have described associated with the passage of Hurricanes Katrina and Rita, has that interfered with the use of you and your family's property down in St. Bernard? A. Oh, yeah. Up until right now. We

still -- up until right now, everything is still all messed up. We ain't got

nothing -- I mean, we ain't got nothing down

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there at all. Q. And finally, Mr. Robin, you said

that now, as you sit here today, when a nor'easter comes through, or a bad weather event, a strong wind, that you still observe the water influx as you described earlier? A. ever. Q. Okay. When was the last time you Quite a bit. More so now than

observed that type of event? A. Q. Last week. So, that was just a week ago from

when we are sitting here? A. When that hard north wind was

blowing and all that, when they predicted high tides and so forth, that was all flooding. MR. ZELAYA: Okay. Thank you, sir. I don't

have any further questions. witness. EXAMINATION BY MR. DISHEROON: Q.

I tender the

Mr. Robin, I'm Fred Disheroon. I

I'm an attorney for the United States. have a few questions to ask you.

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Did you do any work on the MRGO when it was being constructed, or you just observed what went on? A. Q. No, sir. Okay. How often did you observe

the work in the construction of that project? A. Q. I don't understand. How many times, or over what

period of time did you observe construction going on? A. Q. A. Looking at them working and that? Yes. Well, like a fisherman, I would be

going in and out all different times, you know. times. Q. Okay. You had referred to the I mean -- God only knows how many

condition that existed before the project, and you think the project was finished around 1965 or shortly thereafter. correct? A. Q. I think so, yeah. Around '65. Is that

And when I say, "the project," I

mean the MRGO project.

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A. Q.

I would say so. You referred to digging some

canals that had caused -- that had connections with levees. canals were those? A. Okay, like the canal that they What types of

call Bayou La Loutre, that was -- before they dug the channel, that used to be one of our routes going out to the Gulf, was going through Bakers, going through St. Malo, Bayou La Loutre. That was the only canals

that was leading out to the Gulf. Q. And because of the nature of the

land around where you live, you needed the canals in order to get out, did you not? A. Q. Yes, sir. Okay. Because in its natural

condition, you wouldn't have been able to drive boats through? A. Q. Oh, yeah. Okay. Oh, yeah.

And these were privately

dug canals or government or -A. Some of them was privately dug, Naturally, a

some of them was just natural.

canal is usually started -- if you don't dig

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it -- it's usually started from a little ditch, what we call. And then, after years

of passing through it and that, naturally, it gets wider and deeper. that came in there. Q. Okay. And you referred to that And that's where

some of the levees were the result of digging these canals. A. Q. Right. Is that right?

Some of the --

They had just taken the dirt and

piled it along the side? A. Right. In other words, they dug

the canal to get it deeper, and they would take the mud and put it on both sides. Naturally, that formed a levee. And because

of the sweetwater at the time, that's where the cypress trees came up from, the oak trees and willow trees, and that's what built the levee up. It also built a

barricade for bad weather and wind for us. Q. To your knowledge, did the Army

Corps of Engineers have anything to do with the construction of any of those levees that you referred to before the MRGO project? A. I don't believe, no.

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Q.

And to be clear, when you talk

about sweetwater, is that the same thing people normally refer to as freshwater? A. Q. Freshwater. As opposed to salty water coming

from the Gulf? A. Q. Yes, sir. Okay. Now, after the construction

of MRGO, you said there was a gradual change in the trees and the vegetation and the marshes. Can you sort of describe how that I mean, did it commence almost

progressed?

immediately after it was constructed, and what did you notice over the time? A. Well, it took a little while to --

as the ships started passing through there and more traffic started passing through there, naturally, that's what started eating it up. wider. Q. And that was in a couple of years, That's where it started to get more

A. started.

Yeah.

Couple of years after it You could see

You could see it.

it year after year.

And it was developing

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more and more. Q. Physically, can you distinguish

between freshwater on the ground and saltwater? Is there any way that you can

tell just by looking at it, I mean, other than tasting it? A. Well, you can look at it by the

vegetables that is growing. Q. A. The vegetation? The vegetation that's growing And if there is any

there, you can tell.

saltwater that's coming in, plenty saltwater coming in, you are going to see where it's dying. growing. If it was freshwater, it would be But by this here, it would be

dying, and you can notice it. Excuse me. (Witness's cell phone rang.) EXAMINATION BY MR. DISHEROON: Q. Did you begin to observe that

shortly after the project was constructed, that there were changes in the vegetation? A. Q. dying out? Yes, sir. That the freshwater vegetation was

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A. Q.

Yes. Did you see changes in the amount

of the elevations of the land where it was -- you said it was -A. Q. A. Q. It was sinking. There was sinking, subsidence? Yes. Are there any oil wells or

platforms, any type of oil exploration anywhere in your area? A. At that time, they never had too Now they got a

many oil wells around it. lot of oil wells.

Lake Borgne hadn't had Now they got a lot

any wells in it at all.

of wells all over Lake Borgne, all over in the marsh on the outside. Q. Yes, sir.

So, could you sort of describe for

us over what period of time you saw these changes taking place? became evident to you. I mean, when it Was it five or ten

years, I mean, before it was obvious what was going on? MR. ZELAYA: Object to the form of the question. Which changes are we discussing

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now, the vegetation or the oil wells? MR. DISHEROON: I'm sorry. vegetation. EXAMINATION BY MR. DISHEROON: Q. A. Changes in vegetation. Yeah, every year, you could see a Yes. As years passed on, I'm back to the

difference in it.

you could see it more and more and more. Q. You described the beacons -- when

you were asked about the width of the channel, you described the beacons. A. Q. Yes, sir. And you said those have not

changed over the years, they are still where they were from the beginning? A. Right. The beacons is still there

and the width between the two of them is still the same. Q. A. different. Q. Right. But from the beacon to the land is That ate up on both. Right. But the actual area where

ships pass is still the area between the beacons, correct?

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A. beacons. Q.

The ships would pass between two

Right.

The ships don't go outside

the beacons; they would run aground, wouldn't they? A. Q. No. They would run aground.

Can you tell me, roughly, the You have described the growth, And I know it

width area?

but how deep is the water?

may vary, but how deep is the water in those areas outside the beacons? A. shallower. Outside the beacons, naturally, is I would say between the two Maybe 35 feet in some Maybe

beacons, it varies.

places, maybe 40 feet in some places. 30 feet.

Now, on the outside of the beacon, When you go on the outside of the

beacon, either way, on the right-hand side of the beacon going out or on the left-hand side of the beacon going out, from the beacon to the land, I would say maybe 10 feet to 15 feet. gets shallower. Q. Okay. You mentioned Shell Beach. And as it goes further, it

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Is that a location near where you live? A. Q. please? First, could you point out on the map where Shell Beach is? if you would. A. Shell Beach now is right on the Just put an "S", Yes, sir. Okay. Could I see the map,

MRGO, the channel. Q. A. Yes. Before, Shell Beach was on the And when they dug the channel,

lake, okay?

they took all the people from Shell Beach and they moved it on this side of the channel. Q. A. Q. A. On the -So, it's -On the inside of the channel? Right. So that's why they call

this here, now, they call that Shell Beach. But the original Shell Beach was right here, right by the lake. Q. A. Okay. But when they dug the MRGO, they

moved everybody from over here and put them

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over there. Shell Beach. Q.

That is why they called that

Did they move them because the

construction was coming through where Shell Beach had been? A. Q. Yes, sir. At the time the MRGO was finished,

say, in '67 or so, how far was your residence from Lake Borgne in terms of, you know, you had land between you and the lake? A. Well, they used to have a

beacon -- the beacon was on the land. Before they cut the channel, the beacon was on the land. The railroad used to run all The railroad track.

the way to the beacon.

Now, the beacon is in the same place, but it's about a thousand feet out in the water. Q. Okay. And that is still part of

Lake Borgne? A. Q. A. That is Lake Borgne, yes, sir. Okay. And right here is where the Fort Okay?

is at, Fort Beauregard. Q. A. Okay.

That was way on land.

Way on

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land.

Land all the way around.

Now, it's

out in the water. Q. And how long has it been out in

the water, going back from the present time? A. It has been some time, because

what they done, they put a set of jetty rocks all the way around it to preserve it, to keep it as a monument. Q. Was that done as a part of the

MRGO project? A. Q. Yes, sir. Because they anticipated this

would happen? A. I would say that. I think they

put them rocks in there -- I would say about three or four years ago. Q. Okay.

MR. DISHEROON: Are you going to make that an exhibit? MR. ZELAYA: Yes. EXAMINATION BY MR. DISHEROON: Q. You referred to the baseball park

behind your house --

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A. Q.

Yes, sir. -- and you said that you now get

water whenever the wind is blowing from the northeast. Is that water coming in from

Lake Borgne, the tide? A. That water mostly is coming from

Black Bay, what we call. Q. A. I'm sorry? Black Bay. Excuse my expression,

but the right name is Nigger Lake, and recently, they put it Black Bay. But that's

where the water comes from when -- and from Lake Borgne, too. Naturally, it comes from

Lake Borgne, from the channel, and it also comes from Black Bay. Today, when the water comes up, it is all one Gulf. nothing but water. Q. A. Q. It is all Gulf. It's

Before, it wasn't.

So, there is no -No levees. Yes. Essentially, Lake Borgne is

right in your backyard? A. Right. Behind my backyard was a

big levee with the oak trees planted on it and the cypress trees. And that was one

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protection of stopping the water from coming in, and from the wind, too. nothing. Q. Okay. And was that a levee that Today, there is

the Corps of Engineers built when they built MRGO? A. Q. A. No, sir. Where did that levee come from? That was -- well, that was a

little before my time, I guess. Q. your -A. Yes. That was just natural. That Okay. It was there prior to

was natural. Q. Okay. So, it was not a

man-built -A. Q. A. No, sir. -- it was a natural structure? Well, at one time, which was

before my time, too, they had sugarcane fields back there, they had rice fields all over. Q. A. Q. It was all high land. And it is all gone now? Yes, sir. And how long has it been gone?

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A. Q. A. Q. A. Q.

Quite some time. What number of years would you -I couldn't tell you. Over ten years? Oh, yeah. Yeah. Much so. Yeah.

You referred to the Green Bridge

area that is the conjunction of the MRGO and the Intracoastal Waterway. You said that

area, before the MRGO, had been freshwater vegetation and all? A. Q. Yes, sir. Now, the Intracoastal Waterway was

already there, was it not? A. Q. Yes. You were referring to the area

where the MRGO was located? A. Q. Yes, sir. But the bridge comes across the

Intracoastal Waterway, does it not? A. Bridge. Q. A. Yes. That is the one that goes across That is what they call the Green

the Intracoastal Canal. Q. It doesn't go across MRGO?

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A. Q.

Right. So, the area you were describing

there was the area that the navigation project came through? A. Q. Yes, yeah. Okay. Now, you were discussing

where you were during Hurricane Katrina, and you said the boats were on top of the levee. Which levee were you referring to there? A. That is the levee on both sides of The levee where my boats

the Violet Canal.

was at would be on the west levee, west side. Violet Canal is the east side, they And there is a levee on the I was on the west side. When I'm referring to the boats on top of the levee, that's where they went. They were on top of it. Q. A. The water just took the -The water come up; naturally, we We couldn't stop it.

got a levee. west side.

couldn't hold it back. Q.

How high overall did the water get

that came through there, do you know, the height? A. They had homes there -- I would

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have to say that maybe 15 feet or higher. All you could -- after it was over, all that was sticking out was some roofs of the houses were sticking out. there wasn't no roof. Q. Some of them,

Everything was under.

And how high were the levees that

your boats were on? A. Where my boat was at, at normal

tide, is about 6 feet high. Q. over -A. Q. levees? A. Q. Right. Just came right through, but the That much more over. So, they completely overtopped the So, the water was that much

levees didn't do much good? A. Didn't do no good at all. If I

wouldn't have been on the boats, we would have lost them all, because it pushed everything on top of the levee, behind the levee. And as the water went down, that's

when I moved all the boats out to the middle of the channel. them. If not, we would have lost

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Q.

Yes.

Good thinking.

MR. DISHEROON: I have nothing further. very much, Mr. Robin. EXAMINATION BY MR. ZELAYA: Q. Mr. Robin, I would like to clarify Thank you

some of the additional markings you placed on this map. The first point of reference is where you have underlined Yscloskey. Is

that basically where your home is located? A. Q. Yes. And then, you circled the word

"Beach" where it says, "Old Shell Beach." Is that circle the current location of Shell Beach? A. Yes. It is about right here. That's the canal that That's it right now,

Right on the water. goes straight across.

where Shell Beach is right now. Q. And I'm just going to mark that as

"Current Shell Beach." A. Q. Okay. And you have another dot here that

you referred to earlier as the old location

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of Shell Beach on Lake Borgne. marking is that? A.

Which

Right -- this right here.

That's

where the beacon is at now. Q. The beacon? I'm going to mark --

just mark that as "Beacon," so we have it referenced. Is that correct, is that where you identified the beacon? A. Q. Right. Okay. Is this other dot the old

Shell Beach location? A. right. Q. Okay. Now, the area between the That would be the old Shell Beach,

beacon and the shore, at the time of the original construction of the MRGO, that was dry land? A. Q. water. A. That was land. And today, it is covered with Correct? Right. Okay, here, from Shell

Beach, the old Shell Beach, they used to have the road that ran all the way to St. Malo. They had the road. Highway with

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light poles and everything on it.

Today,

them light poles is anywhere from 500 to 1,000 feet out in the lake. That's happened

from the time that they dug the ship channel until now. All of that is eaten up. Where it used to be a road, you can go out there and see it now. The

pilings is still there, which they cut them and they left them sticking out maybe about 4 or 5 feet. So, there is a row of piles

from Shell Beach all the way to St. Malo. That's where the road was. You can go out

there and see that, that part there, how much it is eaten up. Q. We were talking earlier about the

water -- Mr. Disheroon asked you about the water that comes behind your house. When

you are referring to behind your house where the baseball field used to be, can you mark where that would be? A. Yeah. It comes in through here.

Comes in through Black Bay. Q. Just put a marking where the

baseball field used to be. A. It's got to be right behind the

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house. here. Q. then.

It's got to be in this area right in

We will go ahead and mark that

Where you have the word "Yscloskey" underlined, if that's your house, where would the baseball field be relative to that? A. it. Q. A. Q. Just put an X there. It should be about right here. I'm just going to mark that as It would be right in the back of

"Baseball Field." And is the MRGO between the baseball field or your house and Lake Borgne? In other words, if you wanted to go

from your house to Lake Borgne, would you have to cross the MRGO? A. Q. A. Q. Borgne. A. Yes. Yes, I would have to cross No. No? If -Going from your house to Lake

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the MRGO. Q. A. Q. Okay. Yeah, I would have to cross it. Just trying to get those

references. And we have talked about the Green Bridge at Paris Road. A. Q. Okay. Could you just mark where that

would be located? A. here. Q. A. Just put a circle there. Let's see. Let me get this. The Green Bridge has got to be

That's got to be it there, because here's the MRGO here, it runs into the Intracoastal here. Q. That's the Green Bridge right there. I'm just going to mark that as

Green Bridge. Now, how far is it, approximately, in miles from your house in Yscloskey to the Green Bridge, if you know? A. Q. About 15 miles, I imagine. Okay. Now, when you said you made

observations about the change in the

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vegetation in the cypress swamps as the saltwater moved in, did it take longer for the cypress swamps and the marshes to die closer to the Green Bridge as opposed to by your house in Yscloskey? A. Yeah, yeah. Ours died much before

the Green Bridge. Q. How long was it before it got to

the Green Bridge where the vegetation started dying, was it a matter of months, days or years? A. No. It had to be years.

MR. ZELAYA: Thank you, sir; that's all I have. I would like to offer, introduce and file this exhibit as Exhibit 14, continuing the numbers that were in use in yesterday's deposition. Thank you. THE VIDEOGRAPHER: This deposition is ended; it is 12:00. (Which concluded the deposition.)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 _________________________ 15 16 17 18 19 20 21 22 23 24 25 PLEASE INDICATE ( ) NO CORRECTIONS ( ) CORRECTIONS; ERRATA SHEET(S) ENCLOSED ROBIN EDWARDS, SR. I have read or have had the foregoing testimony read to me and hereby certify that it is a true and correct transcription of my testimony with the exception of any attached corrections or changes. WITNESS' CERTIFICATE

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ___________________________________ 23 CATHY RENEE' POWELL, CCR Certified Court Reporter 24 25 I, Cathy Renee' Powell, Certified Court Reporter, do hereby certify that the above-named witness, after having been first duly sworn by me to testify to the truth, did testify as hereinabove set forth; That the testimony was reported by me in shorthand and transcribed under my personal direction and supervision, and is a true and correct transcript, to the best of my ability and understanding; That I am not of counsel, not related to counsel or parties hereto, and not in any way interested in the outcome of this matter. REPORTER'S CERTIFICATE