Free Joint Status Report - District Court of Federal Claims - federal

Case 1:99-cv-04451-ECH

Document 183

Filed 04/06/2007

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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 OF AMERICA, ) ) 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 STATUS REPORT REGARDING SITE VISIT

Case 1:99-cv-04451-ECH

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Filed 04/06/2007

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Pursuant to this Court's order dated March 16, 2007, the parties file this joint status report, requesting that the Court visit the site that is the subject of this case. The parties have conferred and wish to inform the Court of the following: Date and Time Based upon the Court's suggestion, the parties agree that Sunday, June 3, 2007, would be an acceptable time for the Court to visit the site. As will be discussed below, the parties believe that the Court should visit several locations along the coastline, and that a boat tour would be beneficial to the Court's understanding of the site. Therefore, the parties request that the site visit commence at 10:30 a.m., to ensure sufficient time for the visit. Allocation of Expenses Subject to necessary approvals, the parties anticipate sharing the costs associated with the site visit, including boat rental and any other necessary transportation. Plaintiffs reserve the right to revisit the issue of whether the site visit should include a boat tour, in the event that it becomes cost prohibitive. Attendance and Participation The parties agree that counsel should play a minimal role in the site visit. While the attorneys representing the parties will be present, counsel agree to refrain from commentary or argument regarding the site. In the event that the Court poses questions to counsel, the parties agree that any response by counsel should address only the question and not use the occasion to advocate the merits of their client's case. The parties disagree with regard to whether experts should be present for the site visit. Defendant's Position: Defendant believes that the presence of experts could prove helpful

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Case 1:99-cv-04451-ECH

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to the Court, in identifying and explaining the geological and coastal conditions that the Court will encounter, in the event that the Court has questions during the visit. As with the attorneys, experts would be instructed to refrain from commentary unless asked specific questions by the Court, and in that event, would limit their responses to the specific questions asked. We believe that it will be more effective for the Court to be able to ask any questions contemporaneously, while standing on the coast and viewing the conditions that have prompted the questions, rather than wait until the experts testify, at which time the Court will no longer have the benefit of such visual cues. Additionally, given the continuous presence of attorneys for all parties during the site visit, there will be no danger of ex parte communication between the Court and either party's experts. Further, the presence of experts will not necessitate the presence of a court reporter. To the extent that the experts provide information to the Court during the site visit, and either party wishes to rely on any statements made by the experts, counsel may bring out the same information during direct or cross examination at trial. Plaintiffs' Position: Plaintiffs decline to have experts attend the field tour. We do not

consider the conditions (including weather) on a boat, bluff, dune or beach to be conducive for an evidentiary hearing or the recordation of such. Locations The parties are working together to develop a manageable itinerary for the site visit that would take the Court to a number of locations that are illustrative of the conditions present in the numerous properties at issue. The itinerary can be modified to include any specific areas that the Court may wish to view.

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Case 1:99-cv-04451-ECH

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Additional Issues Plaintiffs plan to compile a series of photographs to assist the Court during the site visit. Defendant is unable to take a position on the appropriateness of the photographs before viewing them. Counsel for the Banks Plaintiffs, Mr. Ehret, wishes to inform the Court that, due to physical limitations, he may not be able to accompany the Court for the portion(s) of the site visit that entail descending to the beach.

Dated: April 6, 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 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

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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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CERTIFICATE OF SERVICE I certify that I have served a copy of the JOINT STATUS REPORT REGARDING SITE VISIT" by electronic filing with the Unites States Court of Federal Claims on the 6th 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

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