Free Motion to Dismiss - Rule 12(b)(1) - District Court of Federal Claims - federal

Case 1:99-cv-04451-ECH

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

JOHN H. and MARY E. BANKS, et al., Plaintiffs,
VS.

Civil Action No. 99-4451 L

Emily C. Hewitt UNITED STATES OF AMERICA, Defendant,

ERROL L.

& SUSAN H. STONE,

as Trustees of the Susan H. Plaintiffs,
VS.

04-277L (Consolidated) UNITED STATES OF

PAGE 1 TO 94 The Deposition of GAIL L. CHAPMAN, Taken at i00 Main Street, St. Joseph, Michigan, Commencing at 3:08 p.m., Thursday, March 16, 2006, Before Lori S. Johns, CSR 1097

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I Would that help? 2 THE WITNESS: No. I don't think 3 there's anything on there, I don't see anything on 4 there. 5 MR. EHRET: Do you think there 6 could be a date on the back? 7 THE WITNESS: Nope. I sure learned 8 my lesson to date pictures. Well, here's Karen again, 9 and what's this one say, '69, that says '69. Here we 10 are sitting in front of the wall, that's '69, too. 11 I've even forgotten the question. 12 BY MR. PETRIE: 13 Q. I'm trying, we're trying to locate some 14 kind of a picture A. Oh. The high water naark. 15 16 Q. -- that would be taken somewhere in the 17 vicinity of when you bought the property that, from 18 the content of the picture, it would allow you to 19 apply that defnfition of ordinary high water mark. 20 A. Well, you know, the only pictures I have 21 are the pictures that were taken from the lot side. 22 And God help me, I didn't take a picture over the 23 dunes. Q. What were you thinking, realizing that -24 25 A. Yeah. Here, Iookit. Well, this is one.

1 can tell? 2 A. This was February - oh, I have a date on 3 it. February, does it say '69? Can I steal 4 Q. Some two, three years after you bought the 5 property?. 6 A. Well, this is '70, but you can see there 7 was vegetation on both sides. 8 Q. Certainly. Absolutely. 9 A. Boy. 10 Q. And I appreciate your efforts to look 11 through here, and I don't want to suggest you stop if 12 you think you might come across something that would 13 help you define that ordinary high water mark 14 contemporaneous. 15 A. Well, it's kind of an iffy term but who 16 tells you your high water mark when you buy property. 17 Q. I can appreciate the difficulty in what 18 you're now attempting to do. Okay. 19 A. It's a moot point. I don't know how to i 20 answer that. 21 Q. Fair enough. 22 A. Let's see. Here's some people, here's the 23 property next to us. You can see what's on the 24 hillside there. 25 Q. Yes, ma'am.

65 63 1 A. You're going to get natural grasses, 1 They were putting the foundation of our house is back 2 anything that grows in the dunes, you're going to have 2 here, you can see some vegetation, ta-ta-ta. This is 3 cottonwood trees. 3 the first road that, roadway the bulldozer first going Q. Let me change gears yet again, if I may. 4 4 into building our house in '67. You can see how 5 But I don't want to stop you if you'd like to continue 5 wooded that part of the property was. 6 to look at those photos. 6 Q. Yes. From the lot side, yes. 7 A. No. Go ahead. 7 A. Yes. And here's some, some, this would be 8 Q. My question goes to what kind of efforts, 8 on our neighbor's property, there's vegetation g~owing 9 if any, are you aware of over the years where the 9 there. You know, the stuffthat grows on the foredune 10 Corps has undertaken efforts to address the erosion 10 is beach grass. 11 that's been, that the properties, the shoreline has 11 Q. Yes, ma'am. 12 experienced there south of the St. Joe harbor down 12 A. And cottonwood trees. We have a giant 13 cottonwood tree down there now that has since grown up 13 through where you live? 14 A. Seems to me one year they put in something 14 that we didn't plant: 15 artificial? Was it rocks, in south St. Joe? I don't 15 Well, this, well, here's some 16 think that was very effective. I think they moved. 16 vegetation on the side, see, but we planted dunes 17 Because people were wondering what can you put in the 17 grass on all of this. 18 water. Can you put in this artificial grass that 18 Q. Okay. 19 Frank Lahr, I think, put in? People were concerned. 19 A. Here you can see another, well, see, you 20 can see what this dune looked like, it was dunes grass 20 Land was disappearing, baekyards were disappearing, 21 people were losing property, people were moving 21 on it. That's the vegetation that was on there. 22 houses. Why didn't we have the beach that we used to 22 Q. Yes, ma'am. 23 A. Or some cottonwoods, but they're all along 24 the beach. 25 Q. What year was that picture taken, if you 23 have. Michigan is a resort area, people come here for 24 our beaches. Where are our beaches. 25 Q. Any other efforts by the Corps that you 17 (Pages 62 to 65 COURTREPORTERNET.COM (800) 960-1861

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1 your property?. 1 remember that they undertook to address erosion being 2 A. No. I think people were just wondering 2 experienced by the shores? 3 what would happen, not in relationship to your own 3 A. You know what, I don't think very much of 4 property. And that was quite a few years ago, as I 4 the Corps, because it seems like what they do is just 5 recall. 5 protect government interests. They don't care about 6 Q. Yes, ma'am. You and your husband at some 6 individual property owners. They, the Corps, in 7 point in time decided to bring the lawsuit? 7 quotes, I think they seem to think that the most 8 A. Uh-huh. 8 important thing in the area is the navigation of big 9 Q. That we're now asking you questions about, 9 beats coming in and out of the piers, and the rest of 10 correct? 10 the people be damned. If it's going to hurt your 11 Would it be fair for me to 11 property, they don't even consider it. 12 understand that you and your husband spent some fmte 12 Is there ever a Corps report that 13 thinking about whether or not to even bring the 13 tells you what the side effects are going to happen? 14 lawsuit? 14 What about in Louisiana about these levees that are 15 A. Well, we were wondering what we could do to 15 not properly constructed and it's flooded the whole 16 protect our property, and other people were doing the 16 place. The Corps really made a mistake there. Without-17 same thing. You know, we have quite an expenditure 17 Q. 18 here. 18 A. I think so. 19 Q. I noted that when you listed the cost. 19 Q. Without wanting to either quibble or take 20 exception with your perception, 'cause I respect the 20 A. And it stopped us from completing our house 21 for a long time, because every summer, or every other 21 opinion you hold, even ifI might not see it the same 22 way, do I take your answer te mean that you're not 22 summer, we were doing sometlfmg on the front of the 23 aware of any other efforts by the Corps? 23 property. 24 A. To stop erosion? 24 Q. Yes, ma'am. 25 A. On the lakeside. 25 Q. To address erosion there, yeah. Stop 67 1 emsion or to address it in some manner. 2 A. The only ttfmg I can think of is I think 3 they dropped, put some large boulders or rocks or 4 something in south St. Joe at one time. And I 5 wondered if that, I'm trying to remember where that 6 would have been. If it would have been just south of 7 town where the Mansion Grille is now. I'm not sure. 8 But I don't think it was very effective. I think they 9 were trying to stop -- I don't know what they were 10 laying to do. 11 Q. Okay. 12 A. It didn't work, though, I don't think, 13 because we continued to have erosion. 'Cause we don't 14 have any ~nd, we don't have any sand flowing along 15 the shores. We've got structures that are out there. 16 Q. Do you recall approximately when the Corps 17 placed those rocks there in the location that you've 18 described? 19 A. No, I couldn't. Pd have to go back into 20 the newspapers and check and do something. I don't 21 have any date to recall that, but I know that was one 22 of their projects. 23 Q. When they undertook the placement of those 24 rocks, did the thought cross your mind that as a 25 result of that effort it might in some manner benefit 18 (Pages 66 to 69) COURTREPORTERNET.COM (800) 960-1861
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1 Q. So, Fm not sure I heard your response to 2 my question, which was: Did you and your husband 3 spend some time thinking about whether or not to bring 4 the lawsuit before you actually did? 5 A. No. I thought, I ~ink when we heard about 6 it and we were advised that other people were going to 7 enter into it, we decided that would be something that 8 we would undertake, too. 9 Q. The idea of bringing a lawsuit, had it 10 occurred to you before you heard about other people 11 filing the lawsuit? 12 A. Well, not really. We were just terribly 13 concerned about what was happening in front of us and 14 where would we get the money each summer to do that. 15 Because, as you know, looking back at our, our total 16 output on this thing, we've got more in that seawall 17 mad all the things that we've done over the years than 18 most people have in a home. And we had, we had 19 children to put through college. 20 Q. I'm doing that now myself, so I can 21 understand what that's like. 22 A. And we had to go to the bank, and we're 23 still young then. I'll be 69 now, and Fve spent so 24 much time climbing over these walls and going down 25 ladders to get into the water. We have, if you could

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