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IN THE UNITED STATES COURT OF FEDERAL CLAIMS No. 99-4451 L c/w 04-277 L, 05-1353 L, 05-1381 L, 06-72 L JOHN H. BANKS, MARY E. BANKS, et. al. ) ) Plaintiffs ) v. ) ) THE UNITED STATES OF AMERICA ) ) Defendant. ) ) ) EUGENE J. FRETT, Individually and as Trustee of ) the Victor J. Horvath and Frances B. Horvath Trust ) and DONNA P. FRETT, ) ) Plaintiffs, ) v. ) ) THE UNITED STATES OF AMERICA ) ) Defendant. )

No. 99-4451 L Judge Emily C. Hewitt

No. 05-1353 L Consolidated

PLAINTIFFS' OPENING POST TRIAL BRIEF

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TABLE OF CONTENTS
Page ACRONYMS OR ABBREVIATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF QUESTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv STATEMENT OF CASE ­ GENERAL ZONE OF INFLUENCE OF THE NAVIGATIONAL STRUCTURES. . . . . . . 1 WAVES, ENERGY, LITTORAL DRIFT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 SHELTERING EFFECT OF PIERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 THE PIERS (IM) PERMEABLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 REMOVAL OF MATERIAL FROM THE LITTORAL SYSTEM . . . . . . . . 11 EFFECTIVENESS OF BEACH NOURISHMENT PROGRAM . . . . . . . . . . 11 SIX PLAINTIFFS TESTIFIED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Marsha Wineberg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dick Marzke . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Don Miller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Gail Chapman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Bob Melcher . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Carole Ehret . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PLACEMENT OF DREDGED MATERIAL . . . . . . . . . . . . . . . . . . . . . . . . DREDGING, POLLUTION AND MITIGATION . . . . . . . . . . . . . . . . . . . . LAKE MICHIGAN IS RECEDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DAMS, JETTIES AND SAND SUPPLY . . . . . . . . . . . . . . . . . . . . . . . . . . . ST. JOSEPH RIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . WHAT DIFFERENCE DOES IT MAKE? . . . . . . . . . . . . . . . . . . . . . . . . . SUMMARY STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . 14 14 15 16 16 17 19 22 25 26 27 28 31

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

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ACRONYMS OR ABBREVIATIONS USED IN PLAINTIFFS' POST TRIAL BRIEF ACOE CERC CHL CSEB DDC-DPR DPR FERC HQUSACE ................................... .................................... ................................... ................................... ................................... ................................... ................................... ................................... Army Corps of Engineers Coastal Engineering Research Center Coastal Hydraulics Lab Coastal Structures and Evaluation Board Detroit District Corps Detailed Project Report Section 111 Detailed Project Report Federal Energy Regulatory Commission Headquarters U. S. Army Corps of Engineers ("Sponsored" PX24) LZ MCCP MDEQ NOAA OHWM PZ PX23 ................................. ................................... ................................... ................................... .................................. .................................. ................................... Littoral Zone Monitoring Completed Coastal Projects Michigan Department of Environmental Quality National Oceanic and Atmospheric Administration Ordinary High Water Mark Plaintiffs' Zone Technical Report CERC-96-10 June 1996 Geological Effects on Behavior of Beach Fill and Shoreline Stability for Southeast Lake Michigan Technical Report CHL-97-15 July 1997 Effectiveness of Beach Nourishment on Cohesive Shores, St. Joseph, Lake Michigan Steel Sheet Piling United States Geological Survey National Oceanic and Atmospheric Administration Waterways Experiment Station ("Conducted" PX94) Zone of Influence

PX24

....................................

SSP USGS-NOAA

.................................. .............................

WES ZOI

................................. ...............................

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TABLE OF AUTHORITIES Page No. Banks v. U.S., 314 F.3d 1304 (Fed. Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Dolan v. City of Tigard, 512 U.S. 373 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Kaiser Aetna v. U.S., 444 U.S. 164 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Nollan v. California Coastal Commission, 483 U.S. 825 (1987) . . . . . . . . . . . . . . . . . . . 35-36 Owen v. U.S., 851 F.2d 1404 (Fed. Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Peterman v. Michigan Dept. of Natr'l Resources,446 Mich 177, 521 N.W. 2d 499 (1994) . . 44 Pitman v. U.S., 457 F.2d 975 (Ct. Cl.1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Ridge Line Inc. v. U.S., 346 F.3d 1346 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Tamulion v. State Waterways Commission, 50 Mich. App. 60, 212 N.W. 2d 828 (1973) . . 45 Tahoe - Sierra Preservation Council v. Tahoe Regional Planning, 535 U.S. 302 (2002) . . . 38 United States v. Dickinson, 331 U.S. 745 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 United States v. General Motors Corp., 323 U.S. 373 (1945) . . . . . . . . . . . . . . . . . . . . . . . . . 37 United States v. Virginia Electric and Power Co., 365 U.S. 624, 628 (1961) . . . . . . . . . . . . 44 STATUTES River and Harbor Act P.L. 90-483 Section 111 Navigation & Navigable Waters P.L. 106-180 33 USCA 426i U.S.C.A. Constitutional Fifth Amendment Title 28 U.S.C. 1491 Tucker Act

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QUESTIONS 1. littoral zone? 2. 3. Did the dams on the St. Joseph River block river sand from the littoral zone? Did the configuration of the shore perpendicular structures at St. Joseph direct Did the piers at St. Joseph Harbor remove some or all littoral material from the

the river sand out of the littoral zone? 4. Did Section 111 River and Harbor Act of 1968 effectively place beach sand in

the littoral zone? 5. If the PX68 1834 survey recommendation of Lt. Berrien for the configuration of

the harbor had been followed, would all the littoral material and all the river sediment have stayed in the littoral zone? 6. Is the net littoral drift in the area south of St. Joseph in the plaintiffs' zone from

the north to the south? 7. Is the lake bed south of St. Joseph in the plaintiffs' zone composed of cohesive

material (clay) covered by glacial till? 8. Does it really make any difference if it (lake bed) is clay or sand as long as the

navigational structure at St. Joseph is a total barrier to littoral drift? 9. Does downcutting have the same effect as lake bed lowering on the prospective

erosion along the shore?

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ZONE OF INFLUENCE OF THE NAVIGATIONAL STRUCTURES 1. Charles Lyle Thompson, Ron Erickson and Larry Parson led a two-day tour of

invitees. Their brochure describes "the reach of coastline under the influence of the federally maintained navigation structures at St. Joseph Benton Harbor" PX 113-2 Great Lakes Coastal Geology and Coastal Engineering , Southeastern Lake Michigan. 2. The 1973 Detroit District Corps Detailed Project Report (DDC-DPR) (PX 93

Plate 17 - GOV0976) definition of zone of influence shows the erosion zone extends to 20,900 feet south from the St. Joseph Harbor. 3. PX 113-2 of day two dated 1 May 1994 extends this definition to the Warren

Dunes on the south, saying that, "Day two . . . we will focus on the reach of coastline under the influence of the federally maintained navigation structures at St. Joseph Harbor." Earlier the field trip is laid out as being . . . "from about two miles north of St. Joseph to the vicinity of Grand Mere Lakes." The southerly boundary is about the same as that covered by the USGSNOAA Bathymetry Difference Map shown in PX33-23 Figure 11, namely 42" north latitude. 4. The caption on Figure 11 states:

Difference in depth between NOAA 1945-46 and 1991 surveys. Warm colors show erosion; as much as 4 vertical meters of lake bed have been removed by erosion south of St. Joseph. 5. PX33 is a Cooperative Undertaking by the USGS-NOAA Office for Mapping and

Research dated May 1992. The body of the MAPPING PROJECT at PX33-10 states as follows We suggest that the wave-induced currents scour the lake floor resulting in erosion of the till * and generation of coarse lag deposits. This process appears to be more active off Shoreham, where historically coastal bluff (Buckler 1981) and lake bed (fig. 11) erosion have been severe. The harbor jetties to the north of this area have effectively trapped some of the southerly littoral drift which 1

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has resulted in a sediment starved nearshore area to the south; sand cover, therefore, is not sufficient to protect the till * from erosion. * USGS-NOAA considers the shore is till from St. Joseph to New Buffalo. 6. All three of the authors of the PX 113 (30 April 1994 - Great Lakes Coastal

Geology and Coastal Engineering, Southeastern Lake Michigan) attended the PX 33 (May 1992 U.S. Great Lakes Shoreline Mapping Project WORK SHOP on March 17, 1992 - Undertaken by USGS and NOAA). Ron Erickson Charles Thompson Larry Parson PX33-39 PX33-41 PX33-41

The WORKSHOP was a one day event held March 17, 1992 at Western Michigan University at Kalamazoo, Michigan. 7. It is significant that Larry Parson co-authored both PX23 and PX24 with Dr.

Robert B. Nairn. PX23 page vi (Preface) identifies Larry E. Parson as being employed by the Coastal Structures Evaluation Branch (CSEB) of the Waterways Experiment Station's (WES) Coastal Engineering Center (CERC) located at Vicksburg, Mississippi (described in PX23 on Back of Cover Page). The Preface page vi states that "The Investigation summarized in this report was conducted by the U. S. Army Engineer Waterways Experiment Station's (WES's) Coastal Engineering Center (CERC) and was selected for study and funded by the Monitoring Completed Coastal Projects (MCCP) program. 8. WES, CERC, Larry E. Parson and Dr. Andrew Morang (also CSEB and co-

author with Dr. Nairn of PX23) are not shown to have joined with Dr. Nairn in his May 2006

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litigation report. Nor was WES involved in the funding. According to his testimony 1327:1 18 Dr. Nairn was paid $1,000,000 by the Department of Justice. 9. During Dr. Guy Meadows' expert trial testimony (51: 21through 54:22) he

answered questions about the USGS-NOAA depth difference map shown on PX33-23 Figure 11. That map showed as much as 4 meters vertical removal of lake bed between 1945-46 and 1991 in certain areas south of St. Joseph to Grand Mere. 10. Dr. Guy Meadows testified that he considered the erosion rate would have

continued in the years from 1991 to the present (15 years). The rate was calculated at 4 meters divided by 45 years to be 3.5 inches per year or about 53 inches. That amount of erosion would be added to existing erosion. At 54: 17 And if those areas - if the sediment is continued, not to be supplied from the north, then the length of the area that is eroding will continue to expand because the only source is eroding of the bottom once the sediment supply from both the north and from the shoreline is shut off. WAVES, ENERGY, LITTORAL DRIFT 11. The 1973 Detail Project Report, PX93, page 12, paragraph 29, states:

Wave data plotted according to direction and duration at Muskegon, figure 1, represent the closest available data for the St. Joseph area, Muskegon being 75 miles north of St. Joseph. These data indicate that the ratio of wave energy directed downcoast (to the south derived from waves WNW through NNE) to wave energy directed upcoast (to the north from waves SSW to W) is about 2 to 1 for the full year. 12. Meadows transcript 47:13 to 47:18

There is also a significant fraction that moves a substantial distance away that is not accounted for. There is no practical way. If you take a large quantity of sand and distribute it over a large part of the bottom of Lake Michigan, it is indistinguishable with any surveying technique.

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PX115 and PX93-39a Figure 7 demonstrate Dr. Meadows' point. 13. The 1975-1984 U.S. ACOE Interim Monitoring Report, St. Joseph Harbor

(PX32) was prepared as a supplement to the Section 111 Detailed Project Report (DPR) dated May 1973 (per PX32, page 1, paragraph "Purpose"). It adopted the Section 111 DPR determination "that the annual wave energy towards the south is about twice that directed toward the north" (PX32, page 5). The net southward direction of drift would also be expected from the Section 111 DPR conclusion that annually twice as much wave energy is directed south as compared to wave energy directed north . . . . . The Section 111 DPR determined the net littoral transport interrupted by the harbor structure to be 110,000 cubic yards per year based on available topographic and hydrographic data for the period of 1907 to 1971. (Note: The above is a mathematical statement that Southbound Wave Energy SB equals 2 times Northbound Wave Energy NB . It also states that SB - NB = 110,000 cy/year. Detroit District Corps documentation adheres to this principle as late as January 2000 in the Section 111 Annual Monitoring Report for FY 1999) (PX41 page 4). 14. yards. Table 2 (PX41) has a last column captioned "Cumulative Shortfall" which shows 327,000 cy for St. Joseph Harbor as of FY 1999. PX23 page 9 provides WAVE CLIMATE data based on hindcasting information for 27 years in the St. Joseph area. PX32-5 was for a 3-year period. The predominate direction of wave approach is from the southwest. (PX23-9) Mean Wave Height (2.62 ft) times period * 4.0 sec. Table 2 column captioned "Authorized Average Quantity" states 110,000 cubic

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2.6 squared x 4.0 = 27.04, An indication of relative wave energy (PX23-E1) * A period is the time period from wave to wave. The predominate wave energy approaches from the north and northwest. (PX23-9) Mean Wave Height (3.92 ft.) times period 4.8 sec. 3.9 squared x 4.8 = 73 An indication of relative wave energy (PX23-E1) This Ratio of Energies calculates to 2.7 with the southbound energy dominating the northbound energy even more than was expressed by the Section 111 DPR (PX93-12) and adopted by the Monitoring Report (PX32-5). 15. PX 24 is the Effectiveness of Beach Nourishment on Cohesive shores, St.

Joseph, Michigan "conducted by the U. S. Army Engineer Waterways Experiment Station (WES)." PX2 - v., PX24-17 states that "net transport values . . . fall in the range of approximately 70,000 to 80,00 m3/yr (91,555 cy/yr to 104,640 cy/yr.)." 16.
3

Further on Page 17, "the southward directed transport component ranges from
3

375,328 m (490,929 cy/yr) at Line R8 (PX24-18 and 19) to 170,794 m /yr (223,398 cy/yr at R14." 17. Still on PX24-17 the Effectiveness Report settled on using values for the

important southward directed transport component which ranged from 159,500 m3/yr (208,626 cy/yr) at line R9 to 79,900 m3/yr (104,500 cy/yr at Line R14. This range of values corresponds more closely to the 84,000 m3/yr (110,000 cy/yr) which was estimated by USACE

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(1973) to be trapped on the north side of the harbor. One would expect similar values for profiles located north of the harbor. (R8 is just south of the jetties. PX24-19) SHELTERING EFFECT OF PIERS 17a. 1322:3 - 22. 17b. PX Summary TAB 7.4 (1322: 3-22) shows uniform southbound "net beach PX94-19, PX Summary Tab 7.3 shows 110,000 cy/y southbound at St. Joseph

drift" on the southeastern Lake Michigan shore based on E. B. Hands ` actual observations of displaced river mouths and sand accumulations updrift. 18. PX24-17 states "Sediment trapped on the north side of the harbor is derived

entirely from the southward directed transport component (i.e., waves from the south have little or no effect on the sediments trapped in the shadow of the north jetty)." 19. PX24-60 states . . . bathymetry comparison showed that the lake bed north of

R8 (about 1575 feet south of piers) was stable or accretional. This area is in the lee of the harbor jetties and any sand transported into this zone is effectively trapped (i.e., because of sheltering from northerly wave attacks). THE PIERS (IM) PERMEABLE 20. which states: The initial section of the north pier constructed in 1836 was the first structure built in the area. This pier consisted of an impermeable wooden crib and extended for a distance of 1,023 feet, from the United States Coast Guard Station lakeward to what is now the angle point in the north pier. Dr. James P. Selegean (647:10-15) testified from PX132 -18 Paragraph 50

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21.

During cross examination by attorney Ehret, Dr. Selegean testified from PX

136 as to the condition of the pier in 1865 (29 years later) COMMENTS PROCEEDING FROM LAKEWARD TO LANDWARD
Partially decayed Decayed Considerably decayed Decayed Very badly decayed Badly decayed Very badly decayed Halfway or 450 feet New pier New pier About 200 feet Very much decayed and broken Considerably decayed Considerably decayed and very little stone Decayed - very little stone 12' wide 30' wide 14' wide

ù

24' wide

Lake bottom on south about 1 ft. above lake bottom on north for 1/2 the length measured from lakeward to landward. 22. Based on Dr. Selegean's advice during trial plaintiffs have focused on the

alphabetically dimensioned pier drawing provided as part of PX93 - Plate 2 and the PX93 Plates 3, 4 and 5 which show stone filled crib substructure along the entire length of both piers with dimensions and dates of modifications or repairs. Drawings are dated 1968, 1963 and 1962 respectively (i.e., 3, 4, 5)

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1 SUB S T R 2 SUPE R S T R 1931 1931 1931 1931 1931 3 REPAI R SSP ENC W I D T H

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ALPHABETICAL

Feet Length

COMMENTS

A1 A3 A2 A3 A4

40 161 107 401 171

A B Elbow or Angle Point

576 354

1903 1903 1903 1905 1903 1884 1893 1880. 1 1893 1903

1952 1961 1953 1961 1963

35' 36' 35' 36' 36'

1931 1825.9 1931

X

30' 24' º Elbow or Angle Point

SUBTOTAL

1,810 1836 1836 1927 1836 --1927 1836 --1919

C

96

1961

24'

OLD CRIB

D

279

1961 1961

50' 24'

OLD CRIB

E SOUTH PIER F1 F G H I J K L

573

3851 5971 3761 4261 3191 287 351 170

1903 {1934 " 1903 1934 1903 1925 1900 1927 1899 1941 1899 1941 1924 1941

1963 X X X X X X X

36' 36' 24' 24' N A N A N A N A UNREPAIRED UNREPAIRED UNREPAIRED UNREPAIRED UNREPAIRED UNREPAIRED OLD CRIB UNREPAIRED OLD CRIB

NOTE:

1 = SUBSTRUCTURE

2 = SUPER STRUCTURE 3 = REPAIRED STEEL SHEET PILING ENCASEMENT

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23.

PX24-27. The investigations conducted by Waterways Experimental Station

(WES) and the Coastal Hydraulics Lab (CHL) touches the permeability issue and was discussed in Dr. Nairn's trial testimony (1291, 2) cross examination. His testimony seemed to raise a question as to when the steel encasement took place. The afore going sectional tabulation is an attempt to consider that. 24. Based on Nairn's statement at PX24-27 page 8 that:

Landward of the channel entrance, the harbor jetties due to their sheet-pile construction, were assumed to be complete barriers to alongshore transport. On its face the quote would seem to give us an end point in time at which we can assume as Nairn did that the jetties were effectively complete barriers to alongshore sand transport. That leaves a large gap in time from May 1973 when the DDC-DPR was dated and the time when PX24 was released. 25. There is a PX58, however, which has been admitted into evidence as an

Environmental Impact Statement for rehabilitation of the north and south piers along sections A, B, and H by installing steel sheet piling on both sides of the existing structures, backfilling with stone, placing a concrete cap with new handrails, and placing toe stone 26. A is 576 ft., B is 354 ft. and H is 426 ft. Based on A1, A2 and A3 which were

30 feet wide, before encasement and were 36 feet wide afterwards, we would expect the encased A, B and H to have put on 6 feet in width after steel encasement. 27. Retired Corps Physical Scientist Charles L. Thompson testified on June 5, 2007.

His PX113 Figure 9 still shows no steel encasement of Section A, but at PX113-4 the tour 9

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guide authors offer some helpful information, dated 30 April 1994. "In the past, the jetties were wooden, rock-filled cribs that transmitted a significant amount of wave energy. In addition, the lower crest elevation of the original jetties allowed wave overtopping, further reducing wave energy." 28. Richard A. Voss testified that as a 10 - year old (1946-1956) he used to swim

under the north pier. (789:9, 790:10). 29. Plaintiff Carole L. Ehret, Page 29, presented a PX Summary TAB 1, pages 29-

30, showing rotted/shattered wooden seawall shore protection dated 4-15-98 after only 12 years in service. 30. Physical Scientist Charles L. Thompson testified (446-451) that he typed the 21

June 1994 MEMORANDUM FOR RECORD (PX 61-2) which recorded a panel answer to a Shoreham, MI resident's question. Q. "Does the Corps feel the 110,000 cubic yards per year is addressing 30%

of the erosion?" A. "There is no way of knowing. The only answer that can be given is that

the DPR stated that the harbor structure is blocking 30% of the littoral material coming from the north and that placing 110,000 cubic yards per year would replace the lost material." 31. During his testimony (467:10 - 468: 25) Charles L. Thompson indicated that

steel encasement of jetties would be a form of sand sealing (468:4-9). PX114 - 1 through 8 addresses at least a dozen sand sealing successes. REMOVAL OF MATERIAL FROM THE LITTORAL SYSTEM 32. Charles Thompson testified (436:15- 438:18) that he authored PX41 which is the

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FY 1999 Monitoring Report. That report states as follows at the last two paragraphs of PX 41 Page 3. For most of the federal harbors, the removal of sand from the littoral transport system has been occurring from the time of construction; in some cases for over one hundred years. Mitigation programs only began several decades ago. At several of the older harbors, it is theorized that this long period of sand removal from the littoral system may have created an enormous deficit in the sand supply, triggering lake bed downcutting that may have contributed to the creation of areas of severe and continuing erosion. EFFECTIVENESS OF BEACH NOURISHMENT PROGRAM In simple terms, any adverse effects associated with the federal harbor structures is the result of the disruption of littoral processes; specifically the removal of material from the littoral system. The beach nourishment program is designed to mitigate this disruption by replacing that material. 32a. Charles L. Thompson testified 418: 2-4 that he authored most or all of PX32

entitled INTERIM MONITORING REPORT for St. Joseph Harbor Michigan FOR THE PERIOD 1975 - 1984. PX32-17 states: For the entire period 1975 to 1984, the net direction of sediment transport was to the north. The result indicates the combined effort of wind direction and wind energy was more out of the southwest than for the long-term average which indicates a long-term net drift to the south. PX32-21 states: Based on the hindcast sediment transport, the net drift for April 1977 to November 1984 period was 1,850 cy/yr to the north. ARGUMENT - COMMENT: This indicates a total lack of effectiveness of the nourishment

program. None of the sand would have reached the plaintiffs' zone. Even worse is the fact that all the sand would be removed from the littoral system because of the presence of the piers in their shore perpendicular position as opposed to the

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PX68 position planned by Lt. Berrien in 1834. That would have been about 80" south of the present azimuth of 290".. The CORPS REPORT PX24 - 79 says that the jetties at St. Joseph act ". . . as a total littoral barrier, trapping all sediment reaching this area from either the north or the south. 33. PX24 -79 Nairn states:

. . . the combination of the long jetties and the deep navigation channel act as a total littoral barrier, trapping all sediment reaching this area from either the north or the south. 34. PX24-27 Nairn states:

Landward of the channel entrance, the harbor jetties due to their sheet - pile construction were assumed to be complete barriers to alongshore transport. 35. During his testimony 1332:3-10 Dr. Robert B. Nairn was asked to review the

1834 Survey of St. Joseph Harbor by Lt. Berrien showing the river discharge about 80o south of its present location (PX68) and an A, B, C pier extended off the sand spit: Q. If the southward plan by Lt. Berrien had been adopted, then all of the river sediment and all of the littoral drift would have remained in the littoral zone. Isn't that true? A. Yes. 36. Dr. Guy A. Meadows of the University of Michigan testified as follows:

Pages 161-4 through 162-21 Q. Would you turn to Exhibit Number 24, page 79 please. The second from the last - second from the bottom paragraph, the last sentence, would you read that please. A. `The bypassing analysis showed that the combination of the long jetties and the deep navigation channel x is a total littoral barrier trapping all sediment reaching the area from either the north or the south.' Q. Would you refer to paragraph or to page 18 and Table 3. A. Yes, sir. Q. And the nearest profile to the jetty would be Number 8. Is that correct? 12

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A. That's correct. Q. And the transport positive-the note at the bottom of the table says the positive number is transport to the south. Positive transport is south. A. That's correct. Q. So the south transport at Profile 8 is 375,328, is that correct? A. That's correct. Q. And what is the transport from the north, which is the minus number? A. Minus 306,278. Q. So if Dr. Nairn, if you follow his indication that this would be trapping all sediment reaching this area from the north or south, in order to get the total amount of trapping you would add those two numbers together, wouldn't you? A. Yes. Q. And just using the first three digits, what would you come up with? A. 681,000 cubic yards. Q. So that would be the amount trapped at the piers? A. Yes. Q. And that would be taken out of the littoral system, would it not? A. Yes. Q. And is there any reason to believe that this report is any worse than the post -litigation report, or any better? A. No, sir. Q. So that you would look at them both as being equal? A. Yes. SIX PLAINTIFFS TESTIFIED 37. The six Plaintiffs who testified are listed below, arranged as their property is

located from north to south with approximate distances in feet from the St. Joseph piers. Also shown are the PSummary Tab Ames Aerial Photo Number used to identify the individual plaintiffs' property. Plaintiff's Name Marsha Wineberg Dick Marzke Don Miller Gail Chapman Bob Melcher Distance to Piers 19,200 ft. 24,400 ft. 33,200 ft. 34,000 ft. 38,000 ft. Identification Number of Ames Aerial Photo 61/60 50/49 32/31 30 18

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Plaintiff's Name Carole Ehret 38.

Distance to Piers 41,600 ft.

Identification Number of Ames Aerial Photo 12

Marsha Weinberg was the first and northernmost plaintiff to testify. She testified

(241:15 through 255:16) that she and her husband (now deceased) had purchased the property in about 1975. Since purchase, she has lost about 210 feet of lakefront, about 100 feet deep and 85 feet in elevation including about 10 mature trees. Ms. Wineberg is about 19,200 feet from the piers in St. Joseph. She is located within the Section 111 Corps designated erosion zone and zone of influence (Z0I) PX93 Plate 17 GOV0976. (Please note: Plate 17 shows the Z0I ends south of the St. Joseph piers by the sum of 6000', 5500', 4100', 2800', and 2500', equaling 20,900 feet.) 39. Ms. Wineberg used PX Summary Tab 4 photos 61 and 60 to identify/locate her

property and describe the Corps Section 111 feeder beach and her own shore protection consisting of 52/54 four-foot cube concrete blocks. The Corps feeder beach was gone in two years and the erosion has continued with the Michigan Department of Environmental Quality (MDEQ) (P X Summary Tab 8 - PX135) establishing new setback requirements by their February 9, 2007 letter. The MDEQ has not responded to her request to reduce the 30-year setback from 275 feet and the 60-year setback from 535 feet. 40. Dick Marzke (Transcript dated June 7, 2007 - 886:1-25 through 893:16 )

identified his property through PX Summary Tab 4 page 50 and a supplemental aerial photo from 1977. a. he recently sold his property (about 2003) which he bought in 1969. At

that time there was a complete bluff with trees to the bottom, intact seawall and stairs to 14

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the beach with sand. b. he now lives about a mile north of the jetties on the shoreline. There are

no shore protections for his property. His neighbors also have no shore protection. c. he had moved his 1969 house back from the bluff. This required that he

tear down two other smaller houses which blocked the way. The house he moved was identified by the red roof. There was no pool as there is now. d. the original full width of his bluff had vegetation and trees to lake level.

A clear line of trees marked the southerly parcel line for his property. e. The PX Summary Tab 4 Page 50 showed that he had lost the majority of

the vegetated bluff during his ownership. f. 41. he had no beach and no lake access at the time he sold.

Don Miller testified that: a. b. c. he had owned his property since the sixties. he had a 200-foot wide beach in those days. his home was originally about 50 feet from the edge of the bluff

`which had about 70 very tall trees between the house and the bluff. The trees are gone. He has a large photo in his living room where he could count the trees. d. he tried numerous shore protection systems, including steel sheet

piling, back filling, landscaping and boulderizing. e. f. he worked his systems with neighbors to the south. PX Summary Photo Tab 4 Numbers 32/31 shows his property

condition in September of 2005 by Aerial Photo. Mr. Miller referred to Tab 4 Photos 32/31 to identify his property and show his shoreline boulderization. 15

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g. 42.

Miller still owns his property.

Gail Chapman referred to PX Summary Tab 3 Pages 1-25: a. first located her property just south of Miller - PX Summary Tab 4 Page 30. b. PX Summary Tab 4 - 30 showed the present inundated boulderized

condition of her property. c. PX Summary Pages Chapman 2 through 21 showed the various stages of

shore protection attempted by Don and Gail Chapman, including poured stepped concrete wall, Z wall, bulldozer , backfilling, steel sheet piling, Polyx filter cloth, wood pilings, and 3 to 4 ton boulders. d. showed even currently having no sand beach with the lake at near all time

low conditions. e. explained having a Masters in Library Science from the University of

Michigan and assisting Ehret in researching the early history of the St. Joseph Harbor including the piers and the button factories upstream of St. Joseph on the river. f. being an inveterate beach comber in hunt of fossils and Indian artifacts of all

ages and button factory debris uncovered by the disappearing littoral sand. 43. Bob Melcher by use of his photos and tabulated HISTORY OF EROSION

ACTIVITIES PX Summary Melcher Cover 1 through photos 1 - 16 showed: a. Aerials he purchased from 1971 when he bought his land and built on his

property. Photos 1 & 2. b. c. d. sand bag protection 1989 wood wall protection 1983 2nd wood wall 1985 and 1986 16

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e. f. 43a.

destroyed wood wall 1997 (Photos 11 and 12) new vinyl wall in 1997 (Photos 13 and 14

AT THE REQUEST OF EHRET, Melcher photos 15-20 show annual sand piles

east of Lake Street which borders Silver Beach (south fillet). Winter blown sand. 44. Carole Ehret testified (738:6). She presented family beach photographs (almost all

taken by her) PX Summary pages 1 through 40. The object of her presentation was to document the condition of the beach from 1925 to the present. a. Pages 1, 2, 3 (1948), 4 (1948), 5, 6 (1952) 7 (1952 high lake level chart), 8

(1958), 9 (1960) with loss line drawn in), 10 (1968) 11 (Lake levels graph), 12 (Julie Ehret on pump house cover - now all gone) (1970), 13 (1972) 14 (1973 - foredune largely gone), 15 (1984) shows new wood wall - large tree down), 16 (1985-foredune all gone, main dune about 30% gone), 17 (1986 - Cunat/Gregule cottages teetering ), 18 (1987 - Elms at brink), 19 (2-8-87 Chicago), 20 (lake level chart), 21 (1987 - looking south from Ehret to Cunat, Gregule and Dr. Bunker), 22 (1988 - same seawall back stays added), 23-27 (1994 1997 shows same wood seawall, 29 (4-15-1998 -- 5' x 10' sand bags behind wall , very badly decayed wood wall), 30 (9-13-98, new stairs, main dune slumping, sand bags in front of decayed wood wall), 31 (old well head/point -- cobble/rock lake bed), 32, 33 (cobble rock beach -- 5-16-06), 34, 35 (till like compressed clay -- 11/18/06 -- looks like PX 113 - Figure 14), 36, 37, 38 (10-3-05 -- tree root incased in compressed clay - root carbon dated by Carole Ehret - 6000 years through Geologist Shabica Ph.D) and 39, 40 (10-8-05 shows attempt by Carole to ignite - beach stuff (755:15). b. Carole testified to being a 1953 University of Michigan graduate with basic 17

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geology education. c. Carole Ehret presented a few fossils, pearl button factory debris and Indian

artifacts from her large collection. She stated her recent findings along the shoreline are much more frequent since the sand has disappeared. d. Carole ascribed the new fossiliferousness of the Grand Mere shoreline to the

loss of Grand Mere foredune(s) described in PX77-68 which was largely read into the record. A modern foredune ridge (pl. V.A.; pl. XIX, A) can be traced almost continuously from the Covert Ridge headland on the north to the southern extremity of the embayment. In places it reaches an elevation of 610 feet or about 30 feet above the lake, but on the whole it stands a little above or a little below the 600 foot contour (pl. 1). The windward slope (pl. IV. A) is generally between 10 and 15 degrees, except where cut by waves. Nearly everywhere on the lee side of the foredune the slope is between 20 and 30 degrees passing into a depression which may be as much as 10 feet deep. However, in many places the foredune is built against the base of a bluff cut in higher and older dunes to the landward, and the depression and lee slopes are absent. A double foredune ridge is in several places along the embayment. The most notable example is between the outlet (North Lake to Lake Michigan) and the Nipissing beach on the north. There, two well developed foredunes parallel each other having a maximum depression of 15 feet between them (pl. 1). The older, landward foredune shows a distinctly older and more continuous covering of vegetation. The foredune stands as a distinct ridge where it crosses the mouths of modern blow-outs. Examples are the bar west of North Lake, and in the areas of modern blowing (pl. XX, B; pl. XIX, A) between Weco beach and the State Park entrance. However, the foredune ridges tend to bend landward wherever they cross these openings. Dunes, other than foredunes, are forming on a large scale at several places in the embayment at the present time. At 766:5 Carole testified that the foredune is gone. e. PX77 is entitled State of Michigan Department of Conservation, Geological 18

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Survey Division, Occasional Papers for 1946. It was published "in compliance with Act No. 65 of 1869 as amended by Act No. 179 of 1871 as Part of the Annual Report of the Geological Survey Division. It is authored by Dr. Glenn C. Tague of Western Reserve University. f. Carole Ehret identified and explained PX74Y, 74Z and 74AA which are

Aerial Photos taken by Clete Brummel in 1986. Carole bought the photos from Clete. She explained that the photos show from north to south: 74Z Ehret's with Cunat's two cottages going down (including the Donahue house built in 1917). 74Y Ehret with Cunat, Cunat, Gregule and Gregule just at or over the dune bluff edge. 74AA Bunker's with installation of 30-foot steel sheet piling underway. PLACEMENT OF DREDGED MATERIAL 45. PX 115 is an aerial photo showing a diverted stream of littoral sediment particles

northbound from the south pier at St. Joseph. Knowing (from the summation of the alphabetical section lengths) that the north pier is 1,810 feet long from the angle point (or elbow) to the lakeward end, we can scale the length of the visible stream to be about 3000 feet. This would be measured from the end of the south pier to the lakeward end of the visible stream. The lakeward end of the visible stream of sediment particles scales to about 3600 feet from shore. 46. It is reasonable to conclude that the vast majority of the stream of particles does not

fall into the dredging zone. 47. Dean King is a dredging contractor who testified at trial on June 5, 2007. PX116

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summarizes a blow back instance in April 2005 where the King Company re-dredged the same sand it had dredged and slurry pumped to Lions Park. Northbound weather, which immediately followed the slurry pumping, forced the same area to be re-dredged. King testified that his contracts with the Corps for dredging had no weather provision requiring slurry pipe nourishment of Lions Park only when the waves were southbound. 48. PX23-9, the Corps' 1996 Report, describes the wave climate at St. Joseph as being

predominately directed from the southwest. 49. PX41-4 is the Corps' Annual Report on the Section 111 Beach Nourishment

Monitoring Program. The Corps admits on paragraph 3 of PX41-4 that it is not capable of forecasting alongshore transport direction for any year. 50. Dr. Chrzastowski testified on June 4, 2007 Page 171:18-25 that the coastline at St.

Joseph was a wave dominated coast, i.e., the waves have the greatest influence on the shore. At 172:6-9 he declares that there is a net southerly direction of sediment movement. 51. Dr. Chrzastowski went on however to explain that a zone of drift divergence

exists at Lions Park where the St. Joseph Dredging Records supplied by Dr. Selegean for the Corps, DX 34, show dredged sand deposited every year since 1975. Please see Chrzastowski's June 4, 2007 testimony starting at Page 181, Lines 4-25 where he states: . . . That section of shore at the feeder beach actually has better exposure to waves from the southwest. Because, if you stand there at the feeder beach and look in a southwesterly direction you're looking across several miles of open water, If you're looking in a northwesterly direction, you're looking at a relatively short distance and the jetties are right there. So what happens is, is that location, any sediment that's along the shore has a near equal opportunity of moving either northwards or southwards, depending on what the wave approach is at any given time. Using that site as a feeder beach is problematic because the purpose of a feeder beach is to provide sand to the downdrift shore to compensate for any littoral transport that has been blocked by the jetties. To be a hundred percent 20

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effective, in other words, to get all of the sediment to the downdrift shore, that you're intending to put to the downdrift shore, you want to make sure that you get that sediment to a zone that has a net transport in the southerly direction, the feeder beach, as I've just described, doesn't have that because it's in what's called the zone of drift divergence. It's a zone where there's near equal opportunity for sediment going either north or south. Page 182, Lines 1-25 Now, what's the evidence for sediment going north? Well, that's the first site that we went in on our field trip yesterday. The fillet that has accumulated against the south jetty has a sediment source coming from only one direction . You can't get any sediment from the north because the jetties block transport from the north. The only direction that that fillet on the south jetty can get the sand from is sand coming from the south. The fact that we have a fillet there, the fact that reports have talked about how it has grown with time and also how it's essentially reached an equilibrium indicate that a sufficient supply of sediment has been available from the south to build that beach and create the beach that we see today. If we go southward from the south jetty and look for the source area, where could that sand be coming from. If we go, let's just say three miles to the south, we can identify that clearly is not a source area for the sand coming to the south fillet beach for two reasons: one, it happens to be a revetment, which is -- that's one issue. But the other, the important issue is that there's clearly southerly transport when we get far away from the south jetty. If we keep looking for where this change takes place between north transport and south transport, the indicators on the ground of where that occurs is in the area of Lions Park. Page 183, Lines 1-25 At Lions Park, if we think about our field trip, here we were looking at a place where we know that the Corps has provided multitude inputs of sand. And yet, if you look at the condition of the shoreline there, there's an erosional escarpment along the beach. In other words, the beach comes along at a level, is coming along at a level towards the water, and then there's a near vertical face. We saw that. And there was rock exposure along the shore between the groins. The series of groins is what's called the groin field. And those groin fields weren't holding any sand (emphasis added). So the area is an area of net erosion. That's okay for the purpose of dispensing the sand from the feeder beach. But the problem is that some of that sand is moving north instead of south. We've compromised the effectiveness of the beach nourishment effort. And there's no benefit for any sand from that site moving northwards. As a matter of fact, it may actually be a detriment. Because, as reported in Exhibit 24 and -- well, let's just say as reported in Exhibit 24 there's-- there's indication that sand from the feeder beach actually goes to the south fillet, moves along the south jetty, and ends up being deposited at the entrance to the harbor. So having any northward transport from the feeder beach potentially, under certain wave conditions has the potential of moving sand back into the harbor entrance and has to be dredged again. If the Page 184, Lines 1 through 24 21

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beach nourishment program was a hundred percent effective, you would want to be putting all the beach nourishment sand somewhere south of where it's being placed at present. That was my conclusion from my expert report and that's also a recommendation in Exhibit 24. Q. Would you put your finger on that place where that recommendation is made in 24. A. I'm looking at Exhibit 24, page 88 of Exhibit 24. At the middle of the page there's a bold heading. Recommendations for Future Monitoring. If we look at the paragraph that just precedes that, the paragraph reads `It would be much more effective to place the entire annual allotment of beach nourishment, or at least the trucked coarse sediment, south of lines R22 or R23, where it would be 100 percent effective in supplying the downdrift shores.' The paragraph goes on -- should I continue? Q. Please. A. `The erosion problems in the study area could be addressed with site specific solutions. With this action the implementation of further shoreline structures to the south of line 22 to counteract the increased erosion may be avoided.' Q. And you agree with that? A. I agree fully with that. DREDGING, POLLUTION AND MITIGATION 52. Defendant's dredging records were presented in tabular form going from 1900 to

2004. Ninety-four (94) individual years were recorded. Nine (9) were marked "unknown" as to quantity and placement location. Total (by attorney Ehret) for 94 years was 8,027,781 cy/yr. This gives an average 85,401 cy/yr which when multiplied by 73 years not considered by defendant adds 6,234,273 cy more removed from the littoral zone. 53. Fourteen (14) years show a total of 402,739 cy placed outside the littoral zone on

Whirlpool Corp. property located about 3000 feet upstream on the PAW PAW River from its junction with the St. Joseph River (Placement location can be found on PX113 Figure 8).

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54.

WHIRLPOOL PLACEMENTS -- taken from DX34 page 2. 38,735 1978 39,279 1979 24,359 1980 25,069 1981 36,036 1982 17,010 1984 15,466 1985 14,564 1986 24,227 1987 10,225 1991 29,464 1992 30,696 1997 23,109 1999 79,498 2001 TOTAL 407,739 cy Material washed downstream to the mouth of the flared entrance channel which is

55.

used as beach fill is not polluted. All materials lakeward of pier segment "J" shown on PX93 Plate 2 (GOV 0908) are classified non-polluted (PX 93-52 Paragraph 92). 56. Coarse trucked material started to be placed on feeder beaches in 1986. Corps

Report PX 24-6 recites the following coarse (abt. 2 mm) non-beach material: 1986 1987 1988 1991 1993 1995 120,220 m3 51,527 m3 51,527 m3 63,651 m3 45,821 m3 43,350 m3 376,096 m3 = 491,993 cubic yards

56a.

PX32-17 MONITORING REPORT "For the entire period 1975 to 1984, the net

direction of sediment transport was to the NORTH."

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DREDGING DATA TAKEN FROM DX 34 Year Volume Dredged Cubic Yards 54,378 94,105 181,097 128,227 147,412 116,264 90,836 152,931 128,570 127,010 148,483 329,580 457,807 605,319 721,583 812,419 965,350 1,093,920 1,220,930 BUT FOR the jetties placements in the LZ would stay there and nourish the beaches. BECAUSE of the jetties all material is trapped, diverted or otherwise removed from the LZ Cumulative Totals Cubic Yards Comments

1975 1976 1977 1978 1979 1780 1981 1982 1983 1984

56b. 1997 CORPS REPORT PX24-79, " . . . the combination of the long jetties and the deep navigation channel acts as a total littoral barrier, trapping all sediment reaching this area from either the north or the south. 56c. 1997 CORPS REPORT PX 24-27. "Landward of the channel entrance, the harbor jetties due to their sheet-pile construction, were assumed to be complete barriers to alongshore transport." ARGUMENT: Dredging placements in the LZ from 1975 to 1984 were not contributions to the net littoral drift to plaintiffs. They were removals from the LZ because of the jetties. 57. Mean size material from the nearshore north and south of the harbor is 0.21mm

and 0.233 mm respectively, (PX93-10paragraph 26(a) (2). Coarse material cobble/rock being used is about 10 times as large (i.e., about 2.0 mm) (PX 23-2 and 5). 58. PX41-4 states at paragraph 4) "The beach nourishment material should have the 24

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same physical characteristics (composition, gradation, etc.) as the material found on the beach and nearshore. PX113-5 says "This material is much coarser than natural beach sand, with a gradation that ranges from fine sand to gravel several inches in diameter." LAKE MICHIGAN IS RECEDING 59. Plaintiff Carole Ehret testified that she took elementary geology in her first year

at the University of Michigan. She stated that she was taught that the Great Lakes were receding, averaging 20 feet every hundred years (1,000 feet in 5000 years) 60. This comports with what Dr. Grahame Larson testified to at page 1052:9 to

1055:11. Summarizing, since 5000 years ago Lake Michigan has been going down about 10 to 15 feet (1052:19). 61. Receding is further documented by PX93-8 (1973) paragraph 24

Geomorphology. The highest beach is 60 feet above the present level of Lake Michigan and can be traced from Sheboygan, Wisconsin, southward around the Lake Michigan Basin and northward to Ludington, Michigan. The waters at this stage and at decreasing stages to about the 18-foot level above present levels drained southwestward through the Chicago Outlet\. Following the 18-foot level, the ice border retreated farther north uncovering the Straits of Mackinac and joined the waters of the Michigan Basin with the lakes of the Superior and Huron Basins as well as exposing a lower outlet to the east. This outlet reduced the level of the Lake Michigan Basin to about 10 feet above the present level. An uplift occurred in the northern portion of the basin at this level during the ice retreat, resulting in an outflow through both the Chicago Outlet and the Straits. However, drainage to the east being in glacial till eroded rapidly and lowered the water level below the Chicago Outlet carrying the discharge of the Superior, Michigan and Huron lake basins. Subsequent stages of rising and falling lake levels reduced the Lake Michigan Basin to present levels and outline. (emphasis added) 62. In 1958 the Receding of Lake Michigan is documented in the same words by

PX132-25 (Geomorphology). The words are not repeated here because of redundancy. 63. PX130 dated January 2005 is a Dr. Nairn Report which "established that there has 25

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been a long-term trend toward lower water levels on Lake Huron-Michigan." (PX130-13) At PX130 vii the Report addresses the erosion of the St. Clair River Channel which is the outlet for Lake Michigan-Huron that controls the level of those lakes. He concludes that "the rate of erosion over the last 50 years is unprecedented even on a geologic time scale." The summary section of the Report at PX130 states: The reduction in level difference is continuing. Between 1860 and present the drop has been approximately 80 cm (2.6 feet). This drop represents a irreversible decline in the long-term average lake levels without compensation measures. COMMENT: The lowering of Lake Michigan contradicts the theory of a naturally eroding shore. As does the Dr. Larson statement at 1055: 1-12 that the Grand Mere dune formation is accretion. The geomorphology statements of PX93 and PX132 puts the CORPS' position on record. The plaintiffs cannot rest assured that based on lake level lowering they can escape erosion because the dominant factor is lake bed lowering caused by sand deprivation. This lets the lake advance shoreward even though the lake level is going down. DAMS, JETTIES AND SAND SUPPLY 64. Dr. Grahame Larson - defendant's expert geologist - at 1039: 3-20. Q. A. Q. Littoral drift is transport. That's right. Not erosion. So if you block the littoral drift, the sand keeps going in one

direction and no re-supply comes from the other direction. Isn't that true? A. That is true.

Ehret then asked Dr. Larson to read from PX101 which was an article he wrote in 2001 entitled "Origin and Evolution of the Great Lakes." PX101-537 reads as follows: The sand in the shorezone is then moved along the shore by waves and offshore currents in longshore transport (Lawrence 1994) 26

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However, two recent types of human intervention have seriously reduced the supply of sand to the shore zone and facilitated the loss of sand to deeper water: (1) dams on rivers that are tributary to the Great Lakes, and most importantly (2) jetties and other engineering structures at river mouths (Omohundro 1973, Shabica and Pranschke (1994). The effects of damming tributaries is obvious -- sediment settles out in the relatively still waters of inland reservoirs and is not allowed to be transported to the Great Lakes shore. Jetties function differently. They are engineering structures erected at river mouths, resembling two long walls that border both sides of the river and extend from the river banks and mouth, just inland of a harbor, to relatively deep waters in the lake proper, Jetties affect beach replenishment by diverting sand and other sediments that move along the shore by lake processes, into deep water (Bush et al 1996). Once there, these sediments can no longer be transported to the beach by waves and are therefore permanently lost from the beach system. For this reason, coastal erosion is often most severe near harbor structures rather than at more "open" coasts. Folger et al 1994. Shabica and Pranschke (1994). Dredging of river mouths for shipping and boating purposes can facilitate further transport of sand and sediment into deep water. Once the main source of sand to the beach system, river mouths and harbors have now become sites of beach impoverishment. Thus, shoreline erosion or retrogression, a natural process, has been much more dominant than has shoreline progradation (Powers 1958) and should be considered, when development along the always variable Great Lakes shorelines is contemplated. ST. JOSEPH RIVER 65. Jay Wesley is fisheries manager of southwest Michigan inland lakes and streams

including the St. Joseph River and southern Lake Michigan. He has a masters degree in Natural Resources Management from the University of Michigan. 66. He described the St. Joseph River as starting about 210 miles upstream at Baw

Beese Lake which is over 1,000 feet elevation. It discharges 4,598 CFS into Lake Michigan at less than 600 feet elevation. Transcript 900:1-25. The river flows across glacial till moraines made up of sands and gravels. "Most of the St. Joseph River proper flows through old channels that were formed by old glacial river systems . . . through what's called glacial outwash material which is typically sandy." 27

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67.

At 907: 9-25 Wesley states that "The Berrien Springs Dam on the St Joseph River The

is not regulated by the FERC; it has a permit issued by an Act of Congress in 1906."

Army Corps of Engineers exercises jurisdiction for navigation on the St. Joseph River up to Berrien Springs. 68. Wesley had reviewed plans to dredge the St. Joseph River and pump sand to the

Southwest Regional Airport, but did not know if the program was operational. If it were, he believes that he would be involved." 911:1-25. WHAT DIFFERENCE DOES IT MAKE 69. 199:6-11. 70. Lineback and Gross from the Illinois Geological Survey plus Meyer from the Dr. Chrzastowski said "as far as I know it's all glacial till" in plaintiffs' zone.

University of Wisconsin Geology Department say it is all glacial till in plaintiffs' zone PX96-10 Figure 5. They say further that Wadsworth Till is identical to "onshore till from Lake Border Moraines." PX96-8. 71. PX113-2 was discussed with Charles Thompson at 455:1-8 where he

identified a large outcropping of shale near Lakeside Michigan but everywhere else in Berrien County, "the bedrock is covered with a blanket of glacial till and unconsolidated lacustrine and eolian sediments." 72. NOAA-USGS, PX33-10 Figure 11, Charles Thompson 415:18-25 "The harbor

jetties to the north of this area have effectively trapped some (*) of the southerly littoral drift which has resulted in the sediment starved near shore area to the south. Sand cover, therefore is not sufficient to protect the till from erosion." At 416:1-8 Thompson agreed with this statement. (*) The use of the word "some" by NOAA-USGS adds to the weight of the idea 28

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that the piers were not trapping large quantities until the steel encasement was completed.. 73. Dr. Grahame Larson, however, armed with well diggers logs from an average

about 50 feet above the lake and up to 5000 feet inland from shore (1046:6-18 and 1071:1-24) challenges the findings of direct scientific recorded evidence by NOAA-USGS that there is glacial till. He recognized downcutting, however in PX33-10 Figure 11 in his testimony at 1036:19-25. 73A. Dr. Larson could have easily verified the source of the material washing up on

the Grand Mere beaches by taking a ride in his 17 foot boat with the "thing that allows me to look down into the water." 871:13-17. 74. In the SO WHAT ? department the downcutting phenomenon associated with

the presence of glacial till as opposed to sand make no difference to Charles Thompson. At 461:1-3 he considers lake bed lowering and downcutting to be the same. 75. Dr. Nairn admits that with a total barrier updrift you would lose sand and the result

would be lowering of the lake bed 1295:12-16. (WITH OR WITHOUT DOWNCUTTING AND WITH OR WITHOUT GLACIAL TILL). 76. Dr. Meadows says at 54:18-24 "if the sediment is continued, not to be supplied

from the north, then the length of the area that is eroding will continue to expand because the only source is to erode the bottom once the sediment supply from both the north and from the shoreline is shut off;" 76A. phenomenon. COMMENT/ARGUMENT So plaintiffs submit the weight of the evidence shows the lake bed in the PZ to be glacial till; in addition: 29 At 54:25 - 55:6 he considered downcutting and lake bed lowering as related

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a. b. c. d. photographs. e.

we have held it in our hands. PX Summary 1 pages 34,35. it doesn't burn like peat. PX Summary 1 pages 39, 40 it looks like till. PX113 Figure 14. it can be seen under the water. PX Summary Tab 4, Passim aerial

it could easily have been verified by 17' boat with a see through "thing"

which Dr. Larson has (871:12-19). BUT SO WHAT? 77. No evidence exists that downcutting and lake bed lowering have a different

ultimate effect on the erosion of the shore since the lowering allows the lake to move landward even if it is at almost an all-time low level. Witness the condition at Notre Dame Path where the water is up on the seawalls even with the lake level so low. (Field Trip: Summary Tab 4 pages 28, 29, 30 and 31). Nairn, however, thinks he has to "explain away" his prior admission: THE CRITICAL POINT TO UNDERSTANDING THE EVOLUTION OF COHESIVE SHORES IS THAT THE SHORELINE RECESSION OR ASSOCIATED PROBLEMS UNDERMINING OF SHORE-BASED STRUCTURES COULD NOT CONTINUE WITHOUT ONGOING DOWNCUTTING OF THE NEARSHORE LAKE BED. THE LONG TERM AVERAGE RATE AT WHICH THE BLUFF OR SHORELINE RECEDES ON A COHESIVE SHORE IS GOVERNED BY THE RATE AT WHICH THE NEARSHORE PROFILE IS ERODED OR DOWNCUT. These same words are repeated almost exactly in the following: PX 23-11 (dated 6-96) PX107-17 (dated 4-97) PX24-8 (dated 7-97) 1268:24 - 1269:6 June 3, 2007 and PX

and

SUMMARY STATEMENT OF THE CASE 78. Until this litigation, the Army Corps had repeatedly endorsed the fact that the 30

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structures at St. Joseph had interrupted, dredged or diverted 110,000 cubic yards per year of sand over the years and that amount was considered to be 30% of the total annual loss to the littoral zone (PX 93-32, 43, 44, 46, 58, 59) (PX 115-4) (PX 23-2) (PX24-5, 17) (PX 41-4). This concept was adopted by the Federal Circuit in Banks v. U.S., 314 F.3d 1304 at 1306 (Fed. Cir. 2003). 79. PX61-2 and pages 449, 450 of the Charles Thompson transcript discuss the

CORPS' village hall answer that the "harbor structure is blocking 30% of the littoral material coming from the north and that placing 110,000 cy/yr would replace this lost material." 80. Since 1836, the piers at St. Joseph had always been of open top, rock filled

wooden crib construction (PX 136 Selegean testimony 677-686, PX93 ­ plates 3,4, 5). This document has reviewed in detail for the repair history of the piers (Table of Pier Sections - page 8 herein). 81. PX58 indicates extensive (930 feet on the north side and 426 feet on the south side

in about 1988) steel sheet pile encasement AND CAPPING WITH CONCRETE. 82. Decay is so prevalent in water-wood construction that PX136, 679:9-12 says

"considerably decayed, very little stone" and "decayed, very little stone." 83. temporary. 84. seawall. 85. Scaling the piers at the mouth, shows that the south pier is about 200 feet short of Carole Ehret's PX Summary pages 29, 30 shows her rotted, shattered wooden Contractor Dean King stated at 338:18-339:6 that wood rots and that's why it is

the north (PX115). 86. The best explanation for the contradictory information about net littoral drift is

that the CORPS felt that only 30% of the sand was being blocked because of the decayed 31

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condition of the piers and that 110,000 cy/yr would make up for it. Plaintiffs have no reason not to accept this explanation. 87. Some time after PX58 was issued, the steel encasement was completed and the

CORPS' official position was declared in PX24-79 and 27 to be that the piers were a total barrier trapping all sediment reaching this area from either the north or the south. The CORPS' official position has not changed. PX24 was conducted by the highest CORPS scientific entity (WESCERC), and sponsored by its highest authority (HQUSACE). 88. The finding by the Monitoring Group of the DDC in PX32-17 was that "For the

entire period 1975 to 1984, the net direction of sediment transport was to the north." The Monitoring Group had stated that "annually twice as much wave energy is directed south as energy directed north." Also they found "the net littoral transport interrupted by the harbor

structures to be 110,000 cy/yr." PX32-5 and 420:4 through 422:21. 89. DX20 is the best picture of the fillets at St. Joseph. A simple measurement

indicated that the south triangle fillet is 2" x 1", whereas the north fillet is 5½" x1 ¾." The plan view areas are 1 square inch to 4.8 square inches. 90. Dr. Meadows, at 44:1 through 45:25 stated that "the transport from the north is far

greater than the transport from the south" but did not quantify it. 91. Dr. Meadows stated that to determine how much material was being removed from

the littoral zone (LZ), it would be proper to add the northbound littoral transport to the southbound littoral transport. In addition, you would have to add whatever has been moved out beyond the depth of closure - a lost resource. (44:4-45:1 Meadows)

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THE ARGUMENT 92. The United States Supreme Court made four rulings in United States v. Dickinson,

331 U.S. 745 (1947) which bear upon the facts of this case. a. At page 750 the Court states: ". . . payment need only be made for what is

taken but for all that the Government takes it must pay." The holding directs that all the material removed from the littoral system must be compensated for. The net littoral drift, which the CORPS uniformly acknowledged (until this litigation) was 110,000 cy/yr (84,000 m3 /yr) for 163 years, must be compensated for. Nairn's May 2006 Litigation Report did not include the gross combination of updrift fillet and downdrift fillet retention and diversion. In addition, it ignores the river sand which is the main source of sand for the beaches (PX101-537). The St. Joseph River valley is uncontestedly lo