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

Case 1:99-cv-04451-ECH
Craig Okonski

Document 172-20

Filed 02/26/2007

Page 1 of 10
April 26, 2006

Page 1 IN THE UNITED STATES COURT OF FEDERAL CLAIMS CRAIG D. OKONSKI and CHERIE R. OKONSKI, Plaintiffs, vs. File No. 06-72 L Judge Emily Hewitt

THE UNITED STATES, Defendant.

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DEPOSITION OF CRAIG D. OKONSKI, D.P.M. Taken by the Defendant on the 26th day of April 2006, at Moretti & Murphy Reporting, 711 Pleasant Street, St. Joseph, Michigan, at 5:00 p.m. Reported by Cheryl A. Kirila, CSR-3667. APPEARANCES: For the Plaintiffs: JOHN B. EHRET Attorney at Law 20860 Greenwood Drive Olympia Fields, IL 60461 (708) 748-8975 For the Defendant by Telephone Conference Call: TERRY M. PETRIE United States Department of Justice Environment & Natural Resources Division General Litigation Section 999 18th Street, Suite 945 - North Denver, Colorado 80202 (303) 312-7327 Also Present by Telephone Conference Call: GARY SEGREST

Moretti & Murphy Reporting

800-536-0804

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269-343-0118

EXHIBIT 18

Case 1:99-cv-04451-ECH
Craig Okonski

Document 172-20

Filed 02/26/2007

Page 2 of 10
April 26, 2006 3 (Pages 6 to 9)

Page 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 1s 19 20 21 22 23 24 25

Page 8 purchased the property in 1986. We were married in 1997. And then after two children were born, on the advice of counsel, a trust was formed, and it was his advice to do the quit claim deed to my wife. Q Okay. I understand that sequence of events, and I appreciate that. A Sure. Q Then, if I'm correct then, there's no separate transaction between the time you bought the property and when it was placed in a trust in which your wife received an ownership interest in the property? A That's correct, there was no transaction that occurred. It was just on the advice of counsel as far as setting up our trust fund. 15 Q Okay. I understand. MR. EHRET: Can we go off the record for a second? 16 17 MR. PETRIE: Certainly. Go off the record. 18 (Discussion off the record) 19 MR. EHRET: Back on the record. 20 MR. PETRIE: Back on the record. Thank you. 2 1 Q Dr. Okonski, where did you grow up? What part of the 22 country did you grow up in? 2 3 A I grew up in the Detroit, Michigan, area. 24 Q Had you ever lived in the vicinity of St Joseph ever before 25 you bought the property in 1986? Page 9 1 A I moved to St. Joseph, Michigan, in 1985, I had been here 2 for one year. 3 Q Okay. Prior to moving, was it, I assume, employment related 4 reasons that brought you to St. Joe? 5 A Correct. 6 Q And prior to that point in moving in 1985, had you ever 7 visited the area, other than perhaps, you know, to find a 8 place to live and work and so forth'? 9 A Just primarily as you mentioned, just to -- you know, prior 10 to moving, just visiting the area maybe on two or three 11 occasions. 12 Q l want to talk about what your observations were about 13 erosion south of the St. Joseph harbor there in Michigan at 14 the time that you bought the property in 1986. Do you 15 follow the period of time I'm wanting to focus on? 16 A Correct. Yes. 17 Q And what I'm trying to get a sense of is what your knowledge 18 is or observations were of erosion along the shorefine there 19 in St. Joseph at the time you bought the property, okay? 2 0 A Okay. 2 1 Q So we're at that point in time when you bought the property 22 in 1986. At that point in time, sir, did you have any 23 understanding or observations about erosion along the 24 shoreline south of the St. Joseph harbor? 2 5 A I knew very little about the erosion. Of course, when 800-536-0804 / 269-343-0118 1 2 3 4 5 6 7 8 9 10 13_ 12 13 14

Q Second thought is that, as you are well acquainted, the
court reporter is taking down the testimony today and she needs a verbal response by you to questions. A Correct. Q And, finally, ifyouwanttotakeabreakduringthecourse of the deposition, please let me know. A Okay. Thank you. Q Certainly. Sir, at the beginning here Mr. Ehret wo.s relating some of the history associated with the property that you own there in St. Joseph. He indicated that you bought the property located at 3090 South Lake Shore Drive, St. Joseph, back in June 3rd, 1986, correct? A Correct. Q Do I understand that that address has been changed to 2425 Basswood Path, St. Joseph, Michigan? A Correct. Q Sir, he also mentioned that there is a quitclaim deed dated December 5, 2002, in which you and your wife Cherie -- does she pronounce her name Sherry, Cheryl or Shir-ee? A It is Cherie (Sherry). Q Okay. -- Cherie Okonski conveyed the deed or the property, a trust that is entitled the Cherie Okonski Trust, is that correct? A That is correct. Q Sir, in that chronology that Mr. Ehret recited, and you and Page 7

1 I have just now covered, he did not mention some type of 2 transaction in which the property which you bought in 1986 came to include your wife as an owner. Is thele some 3 4 transaction of that sort? 5 MR. EHRET: I don't have the record. 6 BY THE WITNESS: 7 A I guess I'm not exactly sure what you're asking. 8 BY MR. PETRIE: 9 Q Let me recite the facts, as I understand it, to date, i0 realizing I may be missing something here. As I understand ii it, you bought the property in 19867 12 A Correct. 13 Q And when you bought the property it was deeded to you, and 1.4 not you and your wife? 15 A Correct. 16 Q And then we have tiffs transaction in 2002 in which both of 17 you, you and your wit?, quit claimed the property through a 18 deed to the Trust. Do you follow where I'm headed? 19 A Yes. 20Q 21A 22 Q 23 24 25 A Do you understand? Yes. I'm trying to understand what transaction occurs from the time you bought the property in 1986, between that point and 2002 when your wife's name now appears on the deed. Sure. l can address that. lwassingleattbetimewbenl

Moretti & Murphy Reporting

Case 1:99-cv-04451-ECH
Craig Okonski

Document 172-20

Filed 02/26/2007

Page 3 of 10
April 26, 2006 4 (Pages i0 to 13)

Page i0 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 you're purchasing land, you know, on the lake, I guess, you know, you listen to what various people say in the area, and seemed like they were kind of mixed signals. But I believe this was the first pmpe~y I had ever owned after, you know, completing school and that. So, you know, kind of, I guess, an exciting time in that sense, and I really didn't know a whole lot about the erosion, per se. Q What did you know, and again focusing on that point in time? A You would have to say that I knew erosion was a problem, so to speak, a concern. The lot that I had purchased was, I believe, on record, or on the survey, at least from the east boundary to the shoreline was, I believe, somewhere in the vicinity of 600-feet deep. And I knew that there had been some loss, but I wasn't sure exactly how much, you know, and over what period of lime. So I knew that there was a concern about erosion. You know, you start talking to neighbors and other people and, you know, it was something that I guess my awareness was heightened, obviously, becoming a home owner. And as time went on I have, you know, looked into it, I guess, and sort of studied it a tittle more. So-Q Okay. Let's talk again just specifically about your property at the time yon bought it, okay? A Okay. Page ii

Page 12 1 a small comer of the foundation there when 1 purchased it. 2 Q When you say you're not sure when that occurred, do you have 3 any idea roughly, approximately, when? 4 A From what -- I really tried to find that out and find some 5 record of it, to some extent. I was even trying to go back 6 into the local newspaper, and probably just didn't put 7 enough lime into it. But 1 -- as I recall, sort of 8 mentioned they thought it was in the '60s, 1960's. 9 Q Okay, sir. Now, back on that thought you had that you 10 mentioned about how the, on the east -- how did you put it 11 -- the east line of die survey it indicated that the 12 property went back some 600 feet; the east line of the 13 property? 14 A Yes. That's where I would consider our property, you know, 15 commencing or starting at is the east boundary, and then 3_ 6 extending in a westward direction towards the end of the 17 bluff. That's the longest part of, you know, the property. 18 And then the width is. I believe, 117-feet wide. So -19 Q And on the survey you referred to it suggested that the 20 property went from the east boundary westward some 600 feet? 21 A Correct. 22 Q And at the time you bought the property it in fact was not 23 600 feet? 24 A Well, my understanding with ownership is that with riparian 25 rights that the boundary extends from the, you know, the Page 13 east most part where it commences, let's say -Yes, sir. -- to the point Where it meets the lake. Okay. And so I'm not sure what the -- you know. I could tell you what the distance was to the top of the bluff, which 1 believe was somewhere in the vicinity of 450 feet, but I'm not sure what then the distance to the lake would be from that point. Oftheblufftothelakeitself? Pardon me? From the bluff? Yes. Correct. From the bluff, from the top of the bluff where I would consider, you know, the usable property ending, in a sense, to where the lake starts. Do you have any sense of whether it was another 150 feet? At one point in time, you mean? Well, I understand that perhaps it was at one point in time. But what it was at the time you bought it. Oh, 1 see what you're saying. I would say that would probably be reasonable that it might have been, I guess, maybe an estimation, maybe 100 feet. Okay. One hundred feet, something like that. MR. EHRET: Let me interrupt here, Terry, please. 800-536-0804 / 269-343-0118

1 Q You indicated that you knew there had been some loss, and 1 2 2 you referred to a survey that suggested that the property 3 3 went back, or was some 600-feet deep on the east line of the 4 4 lot you purchased? 5 A Correct. 5 Now, I want to ask you a little bit more about your notion I6 s Q 7 of when you say there was some loss at that point in time, I7 8 and realizing that we are now 20 years later. 8 9 A Yes. 9 10 10 Q And realizing, too. that -- your ability to estimate what 11 that loss had been. Can you give us some idea, some 11 12 12 approximation as to how much loss the property had 13 13 apparently experienced 14 A Sure. 14 15 Q -- versus the 600 l~:et that the survey showed? 15 16 16 A Sure. When I purchased the property there was part of a 17 foundation on the very edge on the west end of the property, 17 18 18 so right at the edge of the bluff, and it was just a comer 3-9 19 of a foundation. 2O And as I started asking around I understood that 20 23. 21 at one point in time there was a home, that that part of the 22 22 foundation was part of a home that had been present there. 23 And I'm not sure exactly when that home was -- I believe it 2 3 became abandoned and a portion of that fell into the lake. 24 24 25 I'm not sure when that occurred. But there was, like I say, 25
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Case 1:99-cv-04451-ECH
Craig Okonski

Document 172-20

Filed 02/26/2007

Page 4 of 10
April 26, 2006 5 (Pages 14 to 17)

Page 14 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 It's Johrl Ehret speaking. Do I have your permission? MR. PETRIE: You sure do, John. MR. EHRET: There is a survey which is by Wightman & Associates and signed by John G. Kamer who is the elected cotmty surveyor at this time, and it's dated May 22nd, 1986. It was done for the NBD Mortgage Company. BY MR. PETRIE: Q Would that be the survey you are referring to, Dr. Okonski? A Yes, Ibeheveso. MR. EHRET: And I think this is on legal size and it indicates a scale of one inch equals 200 feet. And I think that the best way to answer your questions is for you to have a copy of this survey. MR. PETRIE: 1 appreciate that offer. 1 think I may just muddle through the line of questioning that 1 have. MR. EHRET: Right. I'm not suggesting you give that up, pm just saying that it would be -- if you had this it would help. MR. PETRIE: Yes, I agree. Thank you. Q Let me ask, Dr. Oknnski, at the time you bought the property were there any sort of shore protection devices or structures in place such as sea walls? A Yes, there was, sir. Q What would you say was in place at the time you bought it? A There was a metal seawall that was -- that spanned the Page 15 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 1 2 3 4 5 6 7 S 9 10 11 12 :L 3 14 15 16 17 18 19 20 21 22 23 24 25

Page 16 And, as I recall, the answer was there had not been any considerable erosion from the time the seawall was in place. Q Did the gentleman, the owner's son, volunteer or offer any observations about what had caused the erosion? A Not that I recall. Q Since you bought the properly in 1986, sir, has the property experienced any further erosion? A Yes, ithad. Q Can you tell us about that? A Sure. I don't know exactly when, but the -- over a period of time, I would guess maybe over ten years, the seawall deteriorated to a point where maybe we had -- we have, oh, ten percent of the seawall standing and the rest has now fallen, you know, either towards the lake or to the shoreline. And there was -- let's see, I believe I would say maybe 12 years ago we had a rather significant storm in December. And the vegetation that was on, present on the bluff at that time, which there was full vegetation -- in other words, we had a covering of green, I would say, you know, whether it was grasses, trees, plants, all the way across -- and after that storm the entire vegetation slid down to the edge of the lake. So over, I guess, in maybe, gosh, within a week's time or so. Page 17

1 Q Any way of estimating or describing the quantity, either in entire distance across the property. It was joined intact 2 feet or volume of the -from the -- both the north and south properties. 3A I would say at the furthest point that the erosion carried Q When you bought the property, sir, did you ask any questions 4 from the edge of the bluff. 1 would estimate, maybe 20 to of perhaps the person or the owner that you bought it from? 5 25 feet. Or if you were working through a realtor, did you ask the 6 Q How about any other loss to erosion besides the one that realtor any questions about erosion'? 7 you've described for us that came on the heels of that storm A I did discuss it some with the realtor, and very little with 8 12 years ago in December? the owner. She was a very elderly lady who was moving to There was some erosion prior to that time. The part of the Arkansas. I believe, and was sort of in poor health. But. 1 !9A I10 tbundation that I had mentioned earlier did fall into the mean, there was some discussion: I don't recall the exact xl bluff, you know -- or down the bluff, I should say. exchange. 3_2 And after that point there has been some erosion. But, you know, again, in talking with one or both 23 We have some edging that was put in all the way to the edge of them. you know, tiffs was an area that's historically had 14 of the bluff just tbr a flower bed, and that edging is now some erosion present, and I don't think, being in the 15 exposed. So it's aluminum edging that you'd put in to position probably either of them were in, they probably 16 distinguish between your plant beds, you know, where you didn't make it seem too -- too overly cautionary. 17 would place mulch, and then your lawn. And that was -- it Q Sir, did you ask either of them, or perhaps did they 18 was not quite to the edge of the bluff at that time, I would volunteer any inlormation about any thoughts about what was 19 guess back by maybe five feet or so, and now that is causing the erosion? 20 actually hanging over the bluff. So it is -- the aluminum A That 1 do not recall specifically with them, other than the 21 edging is kind of suspended, in a sense. fact 1 recall speaking with the owner's son on occasion, who 22 Q So -- and I'm offering this to make sure I'm correct, but if also lived there, just talking to him about the seawall and 23 I'm wrong you tell me. when the seawall was put in place. And I think if. you 24 A Okay. know, they had had any erosion from that point in time of 25 Q You're describing approximately another five feet of loss of any considerable amount.
800-536-0804 / 269-343-0118

Moretti & Murphy Reporting

Case 1:99-cv-04451-ECH
Craig Okonski

Document 172-20

Filed 02/26/2007

Page 5 of 10
April 26, 2006 6 (Pages 18 to 21)

Page 18 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 land? I would say five to maybe eight feet possibly, yes. Had any other loss to your property? That has been it pretty much that I can -- that I would say, yes, as far as the erosion is concerned. The erosion that you've described, sir, do you consider that a significant loss of property to erosion? The erosion that occurred as a result of the storm, I would say yes. How about the erosion that you described both prior to the storm as well as afterwards, do you consider that significant erosion? Well, l understand wben we bdilt the house the DEQ, wehad to have some kind of sign off letter, and I understand that historically in that area it's -- I'm not sure what time frame they are talking about -- but maybe four feet a year, which I found out when we built the house. And I'm not sure if that's accurate or not. But I guess any erosion I feel is, you know, disturbing in one sense, I guess. Sure. Relate to me again, please, what your understanding was at the time you bought the property regarding the loss of about four feet a year? That 1 didn't find out until we actually -- we built a new home in -- it was completed in 2000, January of 2000. Okay. Page 19 1 A So that was when 1 -- or just prior to, you know, the 2 completion of that, that was when -- 1 beheve it was 3 through someone in the DEQ that had mentioned the historical 4 erosion. Prior to that time I was not aware of that. 5 Q Okay. And just -- and I apologize, it may be very apparent 6 once I hear it, but what is DEQ? 7 A That's the Department -- it was the -- what was the tbrmer s name? It was the Department of DNR, the Department of Natural Resources. 9 z 0 Q That's a state agency'? 21 A lt is a state agency. And now it's the Department of 12 Environmental Quality. 13 Q Do you have any sense of whether the erosion that you had 14 experienced -- that your property has experienced -- is 15 permanent? That you're going to never get it back, that 16 land that you lost? 17 A I would say that's permanent, yes. 18 Q Sir, this lawsuit that you brought against the United States 19 alleges that the erosion your property has experienced the 20 Corps of Engineers is responsible because of the jetties 21 that they have constructed there in the St. Joseph harbor, 22 is that right? 23 A Yes. 24 Q At what point in time did you reach some kind of an 25 understanding, or the thought crossed your mind that Moretti & Murphy Reporting

Page 20 1 something other than the lake was responsible for the 2 erosion your properly was experiencing? 3 A Iwouldhavetosayitwasjustpriortothetimeof 4 building. As we were considering, you know, building a new 5 home and investing a fair amount of money, I guess we 6 started, you know, talking to more individuals. 7 A neighbor of ours who's a good friend, and he's 8 the neighbor immediately to the south, we conversed, and so 9 some of his knowledge or experience we, you know, would 10 discuss. And I guess, you know, it was really around that 11 rime, I would say, that we started, you know, looking more 12 heavily into, you know, what -- if we do build, what kind of 13 erosion we can expect. And, you know, what can be done to 14 try and -- and maybe not stop, but to prevent it. 15 In fact, the neighbor and I, Mr. Bodnar, Andrew Bodnar who I think is scheduled to be deposed on Friday -~ Q Yes, sir. 18 A -- we did hire a company to dump some rip rap over the 19 bluff, actually it was placed because they used an excavator 20 to try and place it strategically to try and -- t wouldn't 21 say stop erosion, but to try and reduce the effect of the 22 erosion. And I believe that was done in - boy, I'm going 23 to have to say somewhere around 1995 or so. 24 Q Okay. 25 A I don't have that information at my fingertips, but I'd say Page 21 1 somewhere around '95 we did hire a company to place a great 2 deal of the rip rap, or broken concrete, strategically in 3 the bluff to try and reduce the effect of erosion. 4 Q Now, sir, I want to go back to a question I asked because -5 A Yes. Q -- I think we got ourselves off track just a bit. 7 A Okay. 8 Q Not your fault. Ihadaskedyoutoseeifyouknewatsome 9 point in time in which you started thinking that something Z0 other than the lake and what the lake does. might be behind 12_ or explain or cause the erosion your property was experiencing. 12 13 And in responding to that question you then began 14 to describe the conversation and the experiences that you 15 had with Mr. Bodnar. 16 A Sure. 17 Q Is that, that relatiunship, that friendship, that talking 18 together, that the idea came to you that perhaps something 3_ 9 else was responsible? 20 A Yes. I brought a packet with me, and one of my -- I started 21 collecting different articles that dealt with erosion, and I 22 have several with me, one actually by the Army Corps of 23 Engineers from the Detroit District, but there's one that is 24 called a Great Lakes Erosion Fact Sheet. 25 Q Yes, sir. 800-536-0804 / 269-343-0118

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Case 1:99-cv-04451-ECH
Craig Okonski

Document 172-20

Filed 02/26/2007

Page 6 of 10
April 26, 2006 7 (Pages 22 to 25)

Page 22 1 A And it's through the Great Lakes H&H Branch in the Detroit 2 District. That is dated -- let's see -- February of '97. 3 And that was probably one of the -- I'm just, in answer to 4 your question -- one of probably the first articles I guess 5 that really discussed the erosion. 6 You know, you, obviously, when you live on the 7 lake you talk with different people, whether neighbors or 8 others that find out you live on the lake. But this was one 9 that addressed the different causes or types of erosion. l 0 Q Okay. And is it something within that article that made 11 you, along with other information, begin to believe that 12 maybe something else explained die erosion? 13 A Yes. Yes. There's a part in this -- again, this 'article which Mr. Ehret rm sure could fax to you, if that's 14 15 something you wanted at some point, but there's an article 16 that talks about littoral transport and sand supply. 17 Q Yes. 18 A And just reading part of the article here it says; "Coastal 19 erosion is part of a larger process known as littoral 20 lransport." And then it describes what littoral transport 21 is. 22 But it says; "Littoral transport occurs both along 23 die shoreline as well as into the lake and on the shore. 24 With respect to sand supply, a given length of coastline may 25 have a surplus, be in balance, or have a deficit in its sand Page 23 1 supply budget." 2 And so, I guess, through some articles that I read 3 concerning the erosion process that -- and I guess in terms 4 of, you know, what I think your question was was when 1 5 became aware of possibly of causes of erosion? Is that what 6 you were asking specifically? Or -7 Q Yes. I am trying to place you back in time to where you're 8 sitting there, living there, and you go out and you see 9 what's happening to your property. And whether or not the 10 wheels started turning in your head to say, hrmn, 1 wonder if 11 there's something else other than things like storms and 12 what the lake does day in and day out that explains or is 13 causing why my property is experiencing the kind of erosion 14 it has. 15 A Sure. 1 would say, in answer to your question, from 16 probably the time that that storm occurred and we started 17 the bluff preservation prqiect that we did with the rip rap, 18 up until the time that we started building there was 19 certaitdy probably a more earnest or heightened awarencss. 20 And, as I mentioned, 1 started a file on different articles, 21 some from the Army Corps. I have a paper of somebody who's 22 a Ph.D. that wrote an 'article on erosion in the Great Lakes. 23 She happens to live in Chicago now and is an attomey as 24 well as an environmental engineer. 25 And so I just started collecting articles on this, Moretti & Murphy Reporting 1 2 3 4 5 6 7 s 9 10 13. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Page 24 and I think that was that time period maybe in several years where my awareness was heightened as far as what are possible causes of erosion, and why our area was eroding somewhat more than maybe other areas. We have friends that live north of the north pier and I know from discussing with them, and they've been in die house for probably close to 20 years, their beach has been increased. So the sand supply or beach area in front of their home has been increased, whereas ours has been -has continued to diminish over time. Q So you place this heightened awareness where you started to contemplate other possible explanations for the erosion that your property experienced back to this December storm some 12 years ago, and you started to then collect articles and things of that nature? A Correct. Q So the December storm 12 years ago -- and I'm trying to think, does that mean 12 years ago from this coming December? Or is that 12 years from December 2005 going back? A l would say from the storm, which l would guess was in 1994, and maybe Andrew Bodnar could substantiate that time period, but I'd say from that time, 1994, until we started building -- let's see, we started our home in 1999 and then it was completed in 2000. So I would say, yeah, in those Page 25 tbur or five years probably preceding the building of our home, because we were, you know, building a, you know, which we thought and still feel a rather nice home, we were putting the money into it, that we had some obvious concerns about the erosion that was going to take place and had taken place and, you know, may continue certainly in the future. Q So starting in approximately December 1994 coming forward in time, when did you -- and I'm focusing on that heightened awareness on your part where you are over time becoming more aware of what is possibly causing erosion, the different possibilities. So if we come forward ti-om December 1994 when this heightened awareness on your part came into existence, at what point in time did the idea of the Corps possibly being a player, or involved in this come to your attention'? A At what time did the -- I'm sorry. Q ThepossibilityoftheCorps. A Oh, l see. Yes. Q When did that come to your attention? A Boy, I don't know, you know, exactly what year. But I have, for instance -- let's sec. 1 have a U.S. Army Corps of Engineers Great Lakes Water Level Fact Sheet dated January of 1987. 1 have the article I mentioned belbre that was from '97. But this last one I said, Great Lakes Water Level Facts was 1987. I have a U.S. Army Corps of Engineers, it's 800-536-0804 / 269-343-0118

Case 1:99-cv-04451-ECH
Craig 0konski

Document 172-20

Filed 02/26/2007

Page 7 of 10
April 26, 2006 8 (Pages 26 to 29)

Page 26 called Help Yourself, a Discussion of Erosion in The Great Lakes. You know, again, I don't know exactly when 1 started or became aware. You know, I think what happened primarily -- oh, this one article was, let's see, their printing was in 1973, and that was the Army Corps of Engineers Help Yourself, Discussion of Problems in The Great
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9 Q Yes, sir. I0 A -- and the revised edition was 1978. So I think what ii happened, I guess, is when we saw the seawall deteriorate, 12 slowly deteriorate, and then that storm occurred, it was 13 kind of a shock. And, you know, even though I did 14 understand that erosion occurs, you know, we saw the seawall 15 erode, we saw this huge storm that took all the vegetation, 16 and, you know, my original intention in purchasing the 17 property was some day to build a home on this because the 18 house that was present was a very small old home, but 19 obviously the property there was desirable because of the 20 view and that. 21 So over time we, you know, had to contemplate what 22 we thought, if anything, we could do to diminish the effect 23 of erosion, and what the effect of erosion was going to have 24 or impact on us in the future, you know, in the near future 25 and even in the, you know, far, the more extended future.
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been, let's see, a couple of professors from Western, as I recall, who were doing some type of research on bluff preservation. And both Andrew Bodnar and myself attended that meeting, and I would maybe defer to him if he has some idea of exactly when that was. But it was definitely prior to our building the home. So I would say that was -- would have been maybe in 1996, something like that. And it was -- so it was held in our area, and it was a request for, you know, to home owners as an informational meeting on erosion. I do also get the monthly -- either monthly or maybe quarterly mailing from the Army Corps as far as the lake levels. There's a pamphlet that l do receive. Q Okay. I appreciate your advising me of all of that information. At this meeting that you and Mr. Bodnar attended at Lake Michigan College, did the -- did any personnel from the Corps of Engineers address the atlendees? A Yes. Q What was the topic? Orwhatkindofpresentationdidthey provide? A As 1 recall the -- as I mentioned, I'm trying to think of what the third agency or group represented would have been. But there was a representative from the Army Corps. I believe there was a representative from -- whether it was DNR or DEQ at that time, they were present. And then these Page 29

prothssors from Western Michigan University. And what the} Q Yes, sir. And I understand that you completed the home in were talking about is, you know, as a broad category, January of 2000? erosion of the Great Lakes and erosion in our specific area A Correct. Q Sir, and let's use that event as perhaps a point in time in St. Joe. And the professors from Western were involved in some type of project where they were. as I recall. that will assist us in you perhaps placing at what point in burying some types of rock or something that would be buried time the idea crossed your mind that perhaps the Corps had out into the lake to see if that would change the wave something to do with the erosion your property was action. experiencing. Do you have some sense of whetfier that ide~. that And so I guess that my take from the meeting was IO possibility occurred to you betbre the new home was more involving the discusskm that they presented, whereas 1 ii didn't -- 1 don't know" that I gained a lot of insight from completed in January 2000? Or is it the understanding on 12 the Army Corps or from the DEQ, I think most of that was your part that occurred after the home was completed? 13 things that 1 had already read or heard of. A I would have to say it was prior to that time. Q Did you have an opportunity, sir, to ever approach thc Corps 14 Q Was the focus of the meeting to discuss ways that people 15 could try to preservc their property? and ask them in some manner, in writing or perhaps in 16 A 11 was sort of an inlbrmational meeting, and I believe there person, about the erosion problems the area was 17 was, yes, there was some discussion on, you know, experiencing, and cerlainly your property specifically? 18 preservation tecinuques. There may have been a pamphlet A There were -- let's see. There was a, I don't know if you 19 want to call it a symposium, but there was a meeting held that was handed out. And rm not sure, 1 have one pamphlet 2o in my file also called Low Cost Shore Protection, and 1 at, I believe it was Lake Michigan College which is in 21 don't know if that was one 1 had gotten or received at that Benton Harbor, I'm not sure when the date of that meeting 22 time, but it was -- I do have that in my possession, and 1 was. That was prior to our building the home in 2000. 23 can't say for sure. And that was attended, I believe, by a 24 Q Do you recall what the Corps of Engineers personnel, what representative from the Army Corps of Engineers. I think 25 they offered for the attendees? What was their talk about? there were three groups in attendance, and there might have 800-536-0804 / 269-343-0118

Moretti & Murphy Reporting

Case 1:99-cv-04451-ECH
Craig Okonski

Document 172-20

Filed 02/26/2007

Page 8 of 10
April 26, 2006 i0 (Pages 34 to 37)

Page 34 1 2 3 4 5 6 7 8 9 10 l1 12 13 14 15 16 17 18 19 2o 21 22 23 24 25 December 1 st of 1998 1 was made aware of the potential litigation. And then also we explored it again. In September of 2003 both Mr. Bodnar and myself did receive a letter from Attorney Donahue and because we were looking at that time to -- he has September 26th of 2003. Q Okay. A I think my recollection was when we received the December 1st, 1998 letter from Mr. Ehret, my recollection was that we had sent back because he had asked for a signed -- it says; "Please include me as a co-plaintiff. 1 agree to contribute to the cost of experts and so forth." And I had signed that dated December 28th of '98, but either the letter, I never sent it, or possibly a copy was sent, because I added a personal note about the -- when the meeting might be scheduled. But it was around the time that we were stamng to look into building our home, and discussion with builders, and just a busy time, and I'm not sure what occurred. I later found this letter in my file and I hadn't seen this letter probably for, you know, six-, seven years or so. Q When you -- the letter that you're referring to, the December 1 st, 1998 letter, do you have that there with you? A Ido, yes. Page 35 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 A Q A Q A Q A Q A 1 hadn't read the complete letter. Okay. There's another paragraph there? Yes. Which you then signed? Yes. Can you read that for us, please?

Page 36

The part where 1 signed the letter? Yes, sir. Okay. It says; "Please include me as co-plaintiff. I agree to contribute to the cost of experts, printing, mailing and court costs in an amount not to exceed $100 annually." And then I signed it. And I have dated 12-28-98. And then 1 wrote a personal note down at the bottom of it. It's a two-page letter. And it says; "Look for notice of a plaintiffs meeting." It has "Schulers" with question marks. "January" question marks. And I just wrote a personal note; "Please let me know about the meeting by phone if necessary, my phone number is 616-428-2970." Q Sir, it sounds to my ears way out here in Denver that you plaaned to join the lawsuit or to participate in a lawsuit back in December of '98, yet we didn't see you join the lawsuit, and actually file a lawsuit until this past JanuoYy 2006. What happened? How come you didn't bring the aclual lawsuit sooner? Page 37 A It was -- I know it was around the time when we were starting to make plans to build our home. I had been married just about a year at that point. 1 don't know if it was being newly married that changed some of our activities and we -- for some reason, I don't know if I just wasn't aware at the time of what was transpiring. That's my perception that I thought I had mailed this letter, and evidently 1 have the original in my hand, but 1 usually make copies of things and usually mail the original as we just do in our office as fitr as letters are concerned. Q Yes. sir. A And 1 thought that's what 1 had done, that I had signed the letter, made a copy and sent the original. But yet I have the original, it appears to be, in my hands and not a copy. It was to be mailed to John E. Dewane at Butzbaugh & Dewane at 811 Ship Street, P.O. Box 27, St. Joseph, Michigan. And 1 -- to my understanding, the copy had been mailed there. But I didn't hear of anything else, any correspondence regarding that, so I wasn't sure what had happened, if the lawsuit had been filed or if it was still in the discussion stages or what. And then as time went on, from that point we started getting pretty heavily into house plans, you know, with the builder. Q Yes, sir. You mentioned earlier here that you explored the 800-536-0804 / 269-343-0118

1Q
2 3A 4 5 6 7 8 9 I0 ii 12 13 14 Q 15 A 16 17 Q 18 A 19 2O Q 21 22 A 23 24 25 Q

1 ffI could trouble you, please, to read that to us and out 2 loud? 3 Sure. Dated December 1st, 1998. Addressed to me. The 4 Subject: Shoreline Residents versus U.S. Army Corps of 5 Engineers. "Some local riparian properly owners are preparing to sue the Army Corps of Engineers for ! 6 7 compensation for property losses and for the cost of prudent measures taken to protect property from further erosion. "The Corps activity in blocking (St. Joe piers) dredging (Channel). and disposal of sand causes riparian owners to lose beaches, dunes and bluffs to erosion. These activities constitute a Fifth Amendment taking of private property without just cause." Okay. And is that from Mr. Ehret? "Without just compensation." l said cause. "Private property without just compensation." 17 Okay. 18 I said cause and I was mistaken. That is from Mr. Ehret, 19 yes. 20 I think you indicated a minute ago that you signed 21 something? 22 I signed this letter, yes. I don't know if you want me to 23 read, there's probably about another paragraph and then 24 there's a place to sign it. 25 I'm sorry, I cut you off, you had not read the --

Moretti & Murphy Reporting

Case 1:99-cv-04451-ECH
Craig 0konski

Document 172-20

Filed 02/26/2007

Page 9 of 10
April 26, 2006 ii (Pages 38 to 41)

Page 38 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 idea of a lawsuit again in September of 2003, and you mentioned an attorney by the name of Donahue? A Yes, John M. Donahue. He's with Straub, Seaman & Allen. Q And do you have some kind of a letter there with you related to that? A I do. That's a rather lengthy letter. But at that point we had sent in a check for $500 to Stranb, Seaman & Allen regarding the lawsuit. I have a file number of 500.35567. Q Yes, sir. A And I can read -- would you like me to read the first part of it maybe, and it might just -Q How about can you tell me, apparently you decided not to actually bring the lawsuit at that point in time either, is that right? A Yes. Q Why is that? A Well, if I can just read a very small portion of the letter. Q Absolutely. A Okay. It's addressed to myself and my wife. "Dr. andMrs. Okonski, we have recently received a check from you made payable to Straub, Seaman & Allen, P.C., in the amount of $500. With that was your completed Prospective Chent Intake Form. Please be advised that we did not request these funds and the Prospective Client Intake Form is only that, 'Prospective.'" Page 39 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 He mentions that he is assisting Mr. Ehret on certain cases related to this. Again, this is a fairly lengthy letter. He says; "1 am hesitant to file any claims at this time, given the fact that the nmtter is currently on appeal. If the Supreme Court takes this appeal and reverses the lower appellate court, than any additional claims filed would ultimately -- would be untimely, as outside the statute of limitations." As I read this, and again it's a rather lengthy two-page typed letter, he mentions, let's see, "The law firm may be able to represent us and would require a $5.000 retainer fee." But, again, what I got from the gist of the letter at that time was to kind of sit tight and information would be forthcoming, whether a lawsuit -- or whether wc could join the lawsuit. And it says; "In fact, please feel free to contact me from time to time, should you desire to do so, as to the status of such continued interest you may have or the status of the pending appeal." This was something that both Mr. Bodnar and inyself had filed or -- you know, had sent a check with our Prospective Chent Intake Form. And my discussion was with Mr. Bodnar, he had spoke with Mr. Donahue and I was kind of getting secondhand information from Mr. Bodnar regarding this. And my -- again, my take on this was, well, we're not sure where this is at and whether you can join; my feeling 1 2 3 4 5 6 7 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

Page 40 was whether you can actually join the lawsuit at that point. So I didn't proceed any longer because that was my take on it at that time, correct or incorrect. Q I understand. Now, you brought Mr. Bodnar back into the picture here, and I was curious to know if you know whether Mr. Bodnar also had expressed an interest in filing a lawsuit back in towards the end of 1998 when you had received that letter from Mr. Ehret? A That I don't know. I can't speak to that time. I know that we both sent a check to the atiomeys, you know, Straub, Seaman & Allen -Q Yes, sir. A -- in 2003. We are personal friends, and so we, you know, would talk about this, as well as other matters, from time to time. But I don't recall specifically what the -- what his take was on this in '98. Like I say, that was -- that became a very busy time for us because we were starting to get pretty heavily into the planning of a house and an upcoming birth of a first child. Q Okay. Well, I understand that. Let me ask this. Why did you file the lawsuit here in January of 2006? What prompted you to do that? A My feeling was, you know, we had been looking into the causes of erosion, yon know, as I had mentioned, probably Page 41 more heavily since this storm which took, what I feel, is a fairly major portion of our bluff, and I'm going to say in 1994 up until the time we were building. And, you know, we weren't sure what our -- what actions we could take as far as. you know. legally. What we, you know, had looked into with Mr. Bodnar again, as I keep bringing him up and he'll probably do the same to me on Friday, unfortunately, but was that we would talk about, you know. what we can do to try and protect the shoreline. And when we initially explored different options when, after that storm, we found that the cost was very significant. We looked into several different methods of bluff preservation and, you know, I think to repair the seawall was extremely costly at the tune of. boy, 800 to a $1.000 a linear toot. and so we were looking at, you know, a really substantial cost. So 1 think in the back of my mind. at least, when we started looking at what was -- what options were available to us, when we knew that there was the possibility of a lawsuit, and then the lawsuit, you know, had been filed, and it was more a matter of I'm not a litigious person by nature, partly from personal, just my personal perspective and also being in the profession rm in, as you might anticipate. But we were not interested in some type of procuring a huge settlement, what we wanted was really 800-536-0804 / 269-343-0118

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Moretti & Murphy Reporting

Case 1:99-cv-04451-ECH
Craig Okonski

Document 172-20

Filed 02/26/2007

Page 10 of 10
April 26, 2006 12 (Pages 42 to 45)

Page 42 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 the interest in trying to really pursue funding just to protect the shoreline. You know, I think we would be happy if we had an intact seawall or some other type of preservation project. Again, we're not looking for a windfall, you know, as in winning the lottery, we're looking at just trying to preserve our home to pass this on, 1 guess, to our children and that sort of thing. Sir, let me change gears for a second here -Sure. -- and talk about what kind of understanding you have about any efforts by the Corps of Engineers to address erosion problems south of the St. Joseph harbor. Do you have any kind of awareness of those kinds of efforts by the Corps? ldonot, with the exception of my understanding there's dredging that occurs annually of removing sand from somewhere out in the lake and bringing it in to replenish the Silver Beach area, and I'm not sure how far that extends south, but I know it extends like into what is called Lions Park area. I know that the washing out of sand -- I had a -had a friend, and have friends that live down in the Lions Park area now, and 1 know it seems like in the winter a considerable amount of sand becomes washed out, and then m understanding was there was some type of contract or commitment by the Corps to replenish that sand. And so they Page 43 1 2 3 4 5 6 7 s 9 10 11 12 13 14 15 16 17 1S 19 20 21 22 23 24 25 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

Page 44 Q Sure does. I understand that. Sir, I'd like to take a break at this point and go off the record. A Okay. (A short break was taken) MR. PETRIE: Back on the record. Dr. Okonski, I have no other questions for you at this point. I would like to, if I could, please, John, for him to make a copy of that December 1998 letter that he has read and described for us, as well as the September 2003 letter that he described from the attorney Mr. Donahue; may we receive those? MR. EHRET: You certainly may. MR. PETRIE: Thank you. And with that, I will turn it over to you, John, if you have any questions for him. MR. EHRET: I do have some questions. CROSS EXAMINATION BY MR. EHRET: Q Okay. Dr. Okonski, you mentioned this Detroit District Great Lakes H&H Branch Fact Sheet, Erosion Fact Sheet, and it has a date of 2/97, and it appears to have four printed pages and a cover sheet, but there's no author. Are you aware of any author of this, other than the Detroit District Corps of Engineers? A No, I'm not. In fact, I'm no1 sure how I procured that, but Page 45

Q A Q

A

I do have it in my possession. would -- I think currently are dredging actually and And you seem to focus on one particular sentence, and I'll replenishing some of the sand for the beach area. 3 repeat it. And. if you would, please explain why it is that Q Have you ever believed that those dredging efforts and the 4 you focus on this -- well. it's two sentences. placement of the sediment, the sand on the Silver Beach, 5 "Littoral transport occurs both along the ever benefitted you and your property? 6 shoreline as well as into the lake and onto the shore. With A No. I would say probably the contrary. Just, you know, in respect to sand supply a given length of coastline may have thinking that, you know, sand is being removed from one 8 location -- I thought it was nice for the home owners that a surplus, be in balance, or have a deficit in its sand 9 supply budget." are down in the Silver Beach and the Lions Park area. but Could you explain what it is about that two probably wasn't a benefit to us. maybe detrimental. ll0 IlZ sentences that seemed to draw your attention during your Q Did that kind of activity by the Corps, dredging and so 12 deposition testimony? forth, and placing of the sand and the sediment on the 13 A Yes. I think when Mr. Petrie asked. I believe the question Silver Beach. did that ever cause you to hold up in bringing 14 was, 1 think, about my awareness of erosion and maybe why your own lawsuit? 15 consideration to filing the suit, and, as I believe I A I don't think I looked at it from that perspective. 1 16 think, you know, I had thought -- you know, again, I'm not mentioned, I had collected a lot of information over a 1V period of years regarding the erosion in the Great Lakes, typically a litigious person and had hoped that there might 18 and some specifically to this area, St. Joseph, or the, you be some type of federal grant or something on that order, a 19 know, southeast comer of Lake Michigan. And when I read mandate that would occur that would resolve in some type of 20 that fact sheet talking about the littoral drift and that, bluff preservation project. And maybe that was being too 21 that was smnething that I guess drew me to, or made some simple. But I think in my mind I -- you know, you kind of 22 connection with the lawsuit in its claim of the change in think, well, maybe things will sort of take care of 23 the littoral drift as a result of the construction of the themselves somehow without personal involvement. 24 jetties or piers, attd its effect on the erosion in our area. Q Yes, sir. 25 Q Now, at one point you mentioned erosion of four feet per A If that makes sense.

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800-536-0804 / 269-343-0118