Free Response - District Court of Federal Claims - federal

Case 1:99-cv-04451-ECH

Document 197

Filed 04/27/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________) ) STONE, ERROL L. & SUSAN H., ) In their own right and as Trustees of the ) Susan H. Stone Trust and the Errol L. Stone ) Trust, ) ) 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, ) ) Defendant. ) ) JOHN H. and MARY E. BANKS, et al.,

No. 99-4451 L Judge Emily C. Hewitt

No. 04-277 L Judge Emily C. Hewitt

No. 05-1353L Judge Emily C. Hewitt

JOINT RESPONSE TO COURT ORDER APRIL 20, 2007 RE: DATE OF 1999 REPORT

Case 1:99-cv-04451-ECH

Document 197

Filed 04/27/2007

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The parties file the following response to the Order filed April 20, 2007, in which the Court directed the parties to "provide the date of publication of the 1999 Report" referenced in Banks v. United States, 314 F.3d 1304, 1310 (Fed. Cir. 2003). That report is titled the "January 2000 FY-1999 Annual Report on the Section 111 Beach Nourishment Monitoring Report." Id. at 1307. As the attached declaration of James P. Selegean, United States Army Corps of Engineers, explains, he attempted to identify a date of publication for the document in early 2006 and was not able to find anything beyond the "Jan 2000" that appears on the cover of the report. Plaintiffs' attorney does not contest the facts as recited by Declarant James P. Selegean. There would be no basis upon which to make such a challenge at this point in time. Plaintiffs argue, however, that in the context of a "seeking for just compensation," it would be per se unjust to impute knowledge of an undated Corps Report which "in the normal course of business, is retained within H & H" as stated by declarant. Plaintiffs' knowledge of the facts are as stated in paragraph 8, page 3 of their March 21, 2007 Response to Defendant's Motion to Partially Dismiss. Plaintiffs state additional information might be forthcoming from testimony at trial by Charles L. Thompson and David L. Schweiger who are both listed for subpoena to appear.

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Case 1:99-cv-04451-ECH

Document 197

Filed 04/27/2007

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Dated: April 27, 2007

Respectfully submitted,

s/John B. Ehret by Terry M. Petrie John B. Ehret, Esq. 20860 Greenwood Drive Olympia Fields, IL 60461 Telephone: (708) 748-8975 Facsimile: (708) 748-7661 [email protected] Counsel for Banks plaintiffs

MATTHEW J. McKEOWN Acting Assistant Attorney General Environment and Natural Resources Division

s/Drew W. Marrocco by Terry M. Petrie Drew W. Marrocco, Esq. Sonnenschein Nath & Rosenthal LLP 1301 K Street, N.W. Suite 600, East Tower Washington, D.C. 20005 Telephone: (202) 408-6387 Facsimile: (202) 408-6399 [email protected] Counsel for Stone plaintiffs

s/Terry M. Petrie TERRY M. PETRIE Environment and Natural Resources Division U.S. Department of Justice 1961 Stout Street, 8th Floor Denver, CO 80294 Telephone: 303-844-1369 Facsimile: 303-844-1350 [email protected] Attorney for Defendant

s/Eugene J. Frett by Terry M. Petrie Eugene J. Frett, Esq. Sperling & Slater, P.C. 55 West Monroe Street Suite 3200 Chicago, Illinois 60603 Telephone: (312) 641-4874 Facsimile: (312) 641-6492 [email protected] Counsel for Frett plaintiffs

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Case 1:99-cv-04451-ECH

Document 197

Filed 04/27/2007

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CERTIFICATE OF SERVICE I certify that I have served a copy of the "JOINT RESPONSE TO COURT ORDER APRIL 20, 2007 RE: DATE OF 1999 REPORT " by electronic filing with the Unites States Court of Federal Claims on the 27th day of April, 2007 on: John Ehret, Esq. 20860 Greenwood Drive Olympia Fields, IL 60461 Counsel for Banks Plaintiffs **************** Drew Marrocco, Esq. Sonnenschein Nath & Rosenthal LLP 1301 K Street, NW Suite 600, East Tower Washington, DC 20005 Counsel for Stone Plaintiffs **************** Eugene J. Frett, Esq. Sperling & Slater, P.C. 55 West Monroe Street Suite 3200 Chicago, Illinois 60603 Counsel for Frett Plaintiffs ****************

s/Terry M. Petrie TERRY M. PETRIE