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

Case 1:99-cv-04451-ECH
Andrew Bodnar

Document 172-19

Filed 02/26/2007

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April 28, 2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

ANDREW C. BODNAR and CHRISTINE M. ZAHL-BODNAR,

Plaintiffs, vs No. 05-1381 L Judge Emily Hewitt

THE UNITED STATES,

Defendant.

The deposition of ANDREW BODNAR, a witness in the above-entitled cause, taken before Kim Sing, Shorthand Reporter and Notary Public in and for the County of Van Buren, State of Michigan, at 728

Pleasant Street, St. Joseph, Michigan, on the 28th of April, 2006, commencing at about 2:15 p.m.

Reported for Moretti & Murphy Reporting By Kim Sing, CSR-2263, CP-RPR

Moretti & Murphy Reporting

800-536-0804 / 269-343-0118

EXHIBIT 17

Case 1:99-cv-04451-ECH
Andrew Bodnar

Document 172-19

Filed 02/26/2007

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April 28, 2006
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moment? We have an automobile alarm going off, and I think it's Andy Bodnafs, so, we are offthe

record, okay?.
MR. PETRIE: Yes, no problem. (A short break was taken.) MR. EHRET: Back on the record. (BY MR. PETRIE): Thank you. Mr. Bodnar -Yes, sir. -- the address you live at is what? It's now considered 2400 Lake Ridge Path, St. Joseph, Michigan. Is that the property that is involved in this lawsuit that you have brought? Yes. When did you buy that property? In 1989. Did you have a month or anything like that that goes with the year? No. MR. EHRET: If yon hold on a second, I can get it for you. John Ehret speaking. Let's come back to that. I will fred it. MR. PETRIE: That is t-me. Mr. Bodnar, has anyone else, for instance, your wife, did she also have tide to the property?
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1 Q When you first moved back to the St. Joseph area, did you live on the shore? 2 3 A No. I bought a house down off one of the channels 4 off the river. s Q Did you live in that house until you bought this 6 property here on Lake Ridge Path in 1989? 7 A Pardon me? 8 Q The place that you bought when you first moved to 9 St. Joseph in 1986, did you live in that place i0 until 1989 when you bought the property on Lake ii Ridge Path? 12 A Yes, that's correct. 13 Q Did you have any kind of awareness of erosion for 14 the shore line south of St. Joseph Harbor before 15 you bought the property in 1989? 16 A Well, I mean, I knew about it. I knew that the -17 you know, what I read in the paper. I didn't 18 really -- wasn't that involved in it or that 19 interested in it at that point, particularly 20 because I didn't live on the lake. i21 Q I understand. Can you tell me what kind of 122 awareness you did have, even if it was limited? Again, before 1989. 123 124 A Well, I knew it was an issue and it was somewhat of 12s a problem. I don't think I knew the degree of the
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1 A She does now or her name is on it. 2 Q About when did she have her name placed on the 3 title? 4 MR. EHRET: That, again, I can give you 5 exactly. John Ehret speaking. But I need to do 6 some research. 7 MR. PETRIE: That is fine. 8 Q Mr. Bodnar, when you bought the property, were you 9 married at that time? i0 A No.
ii Q Iflmayask, when did you get married? 12 A 1998, July2ud. That l can remember. 13 Q Okay. Prior to buying the property in 1989, did

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problem at that point. problem, can you give me some sense of what you understood it to be then? Well, I - I knew that there were people that for one reason or another were losing some of their property. I really didn't -- you know, until I actually rived there, I really didn't give it too much thought. Okay. And, again, these questions are focused on what your knowledge was before you bought the property. MR. EHRT: That is a telephone going off. qhis is John Ehret, so, we are fixing that. MR. PETRIE: Can we go offthe record? (A discussion was held offthe record.) MR. PETRIE: Let's go back on the record. Mr. Bodnar, you mentioned that you had some understanding people were losing property before you bought yours in 1989. Did you have any awareness that some people had lost homes to the shore? Uh, I don't think I realized that it was to that extent until, actually, I had bought my house. Didn't do very much research, I guess.
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14 you live in the area there in St. Joseph? 15 A Yes, Idid. 16 Q Can you give me some idea of your involvement or 17 familiarity with that area? I mean, is it, for 18 example, where you grew up or you moved there at 19 some point in time? How does that play out? 2 0 A I grew up in Niles, Michigan, which is south of 21 here 30 miles or so, and I lived there until 22 approximately 1979, at which point I moved to the 23 Detroit area, and I lived there until almost -24 well, 1986, January, when I moved back to the St.

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Moretti & Murphy Reporting

Case 1:99-cv-04451-ECH
Andrew Bodnar

Document 172-19

Filed 02/26/2007

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April 28, 2006 (Pages l0 to 13)

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When you bought your property, did you do any kind 1 2 of research into erosion problems that the property 3 had itself experienced? 4 Not much because when I bought that house the sea wall was fully intact in the back, and there was 5 mature growth and grass and it looked like it 6 wasn't a problem. 7 8 What did you -- did the fact that there was a sea 9 wall, did that suggest anything to you about the 10 possible problem of erosion? ii Well, yes, obviously, it was a problem at some 12 point, and I didn't really know at that point if it was related to trends or -- or, you know, what 13 14 exactly required the sea walls over the years. You know, it's hard to remember what you thought 15 16 about back 17 years ago. Did you at some point in time come to understand 17 3. 8 why the sea wall was required? 3. Uh, within -- after a few years of living there, I did, yes. 20 And what happened after a few years? 22. 22 Well, the sea wall started deteriorating, and it was a little hard to tell because you couldn't get 23 down to it, but it was apparent that it was 24 starting to lean back, and my neighbor's sea wall 25
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just got bits and pieces from what people told me, and I talked to some -- I did try to tall to some people that were familiar with repairing the sea wall. That was my initial thought, was to try to get that repaired, and most of the people said at that point that it was already beyond repair because the water depth on the outside of the sen wall was so deep that there really wasn't too much that could be done at that point. Q What I would like to do, sir, is to go back to the point in time when you bought the property in 1989, and what I would like us to do is come forward in time through the present. And I would like you to describe for us the -- basically what kind of problems you experienced with your property as it relates to erosion, what, if anything, you did at that point in time to address it, and what kind of understanding you had about what was causing the 9 problem. Does that make sense? A Okay. That is a long question. Q I beg your pardon? A That is a long question. Q You see, I'm basically wanting to go through chronologically from the time you owned the property to have you relate to us the problems that
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was being slowly taken down by the water. Who were those neighbors? At that point, Craig Okonski had part of his sea wall that was still there. At the time that you bought the property, sir, did you have any discussions with either the people you bought the property from or perhaps a real estate agent about any issues or problems with erosion? No. "Ilae house was empty. It Was -- someone had been transferred. It had been empty for a long time, and I don't recall talking to the realtor about the erosion issue. You mentioned, sir, that you did not know exactly at the time you bought the property why the sea wall was required but then, again, after several years you came to understand why. Did you ever form any kind of an understanding about what was required or what was causing the erosion? Well, as the sea wall was getting worse, I think we started -- I started doing some research on it. My situation is that running a business on a hands-on basis, my time outside of that business is very limited, so, I only had so much time to do that research. Back then, they didn't have the internet like they do now, and, so, basically 1

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you experienced with erosion, and at that juncture, at each of those points in time, ask you if you can describe forus what you did to address the problem that had occurred, and also to describe for us what your thoughts were about what was causing the erosion. Maybe you didn't think anything. Maybe you talked to people and they in turn shared ideas with you and so forth. Whatever the facts are is what I am trying to understand there, okay? Well, I will try to reconstruct it. I mean, it's hard for me, after knowing what I know now, to go back and remember what I thought at the time but, obviously, at the time I bought the place, I didn't think it was that much of an issue because the sea wall was intact, the greenery was intact. There were trees going almost all the way up to the edge of the -- well, there were trees that went up to the edge of the bluff, and you know, there were other sea walls adjacent to mine that were deteriorated. Mine was fully intact. I guess I looked at that thinking, well, that -- if the sea wall is in good shape, then I should be in good shape. The -- having lived on the river for three years, I saw cycles up and down of the water level,
800-536-0804 / 269-343-0118

Moretti & Murphy Reporting

Case 1:99-cv-04451-ECH
Andrew Bodnar

Document 172-19

Filed 02/26/2007

Page 4 of 8
April 28, 2006 (Pages 14 to 17)

Page 14 1 2 3 4 5 6 7 8 9 10 11 12 3. 3 3.4 15 16 17 3. 8 3. 9 20 2 3. 22 23 24 25 and I guess at that point I think I probably looked at that as the cause of the erosion, with the cycles going up and down. I didn't really put too much thought into it, I'm sure at that point. Q Okay. Now, what you have described, sir, suggests to me that later, at some different point in time, you came to think that possibly this was not a matter of just cycles going up and down, is that correct? A Yes. Q Okay. When we get to that point in time when you came to some different understanding, please be sure to let us know. A Well, uh, during the process, as my sea wall was slowly deteriorating and going away, there was some meetings that were held. There was a meeting at the college where one of the -- I don't know what they called it back then, DEQ or DNR or Army Corps or -- I guess somebody from the Army Corps was there to explain and help understand what was going on. I am not sure -- really sure what their goal was; it was so long ago. But what time I had permitted -- obviously, I just bought a business. I was spending, you know, 80, 90 hours a week running the business, so, my time was limited and Page 15 1 2 3 4 my information I gathered as I could, bits and pieces. So, I am sure 1 could have been more diligent in that respect, but my first priority was my business, and that is what I was doing. Okay. May 1 ask about that meeting at the college. Was that a meeimg at Lake Michigan College? Yes. And about what point in time do you place that meeting? Uh, well, I am not really sure if that was prior to the bluff-- my bluff disappearing or just after it. I am not really -- I don't remember, honestly. And do you -- let me ask you several questions that might help us focus on when that meeting at Lake Michigan College occurred. What years did you start or buy your own business? 1986. Okay. So, obviously, I assume this is a meeting that occurred after that then? Yes. Do you recall about what year it was that you lost your bluff?. Uh, I think it was spring of'97. Okay. Do you recall it -- in conjunction with that act that, you're not sure whether this meeting was i 2 3 4 5 6 7 8 9 10 3. 3. 2 3. 3 14 15 3. 6 17 3. 8 3. 9 20 21 22 23 24 25

Page 16 just -- was before or after? A I don't remember which direction it was, no. Q Was it approximately the same time as when you lost your bluff?. A I am really not sure. Q Okay. That's fine. Well then, do you recall what kind of problems your property had incurred before losing the bluff?. A Well, it was -- it was a systematic deterioration of the sea wall, and it was clear even from above I that the water kept digging deeper and deeper in front of the sea wall and the sea wall kept laying down more and more, and then eventually it just -it fell down; and once it fell down, the water came over; then it made short work of the bluff and -Q And at what point in time then did you decide or come to some understanding that what was occurring with your property was not just, as you put it earlier, cycles going up and down? A Well, I don't -- I think I pretty much thought it was cycles even at that point until I started, you know, talking to some of the other neighbors and then also doing a bit more research and reading about it, and then I don't remember huge amounts of the meeting at the college, but I do remember, you Page 17 know, other people talking about their problems there and that, you know, it was indicated that the lake has its own natural level of equilibrium that it's going to seek, and it's going to keep on coming no matter what you do and was being, you know, discouraged to do anything to prevent the lake coming further into our property, and the only other thing I did remember at the time was that the Army Corps guy made a comment that they admitted that the problem with the erosion was possibly a third of their responsibility that was related to closing up of the piers. Q Okay. So, ifI understand you correctly, at this meeting at Lake Michigan College, somebody from the Corps of Engineers addressed the audience, right? A Yes, that's correct. Q And you recall this person in some manner acknowledging that the Corps had some responsibility for the erosion that people's properties were experiencing? A Yes, I do recall that statement. Q And you recall him indicating it was somewhere about in the amount of a tlftrd? A That's correct. Q Okay. And what happened after you lost the bluff 800-536-0804 / 269-343-0118

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Moretti & Murphy Reporting

Case 1:99-cv-04451-ECH
Andrew Bodnar

Document 172-19

Filed 02/26/2007

Page 5 of 8
April 28, 2006 6 (Pages 18 to 21)

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1 SO, waiting here for a minute. 1 to your property, any further erosion? 2 MR. EHRET: Let me interject here in an effort 2 A Well, up until the point I lost it, I had been 3 to assist. We do have some exhibits which show -3 trying to figure out or talking to different 4 are you there? 4 contractors that could possibly come in to help me 5 MR. PETRIE: I am. repair the sea wall before that happened. As it 5 6 MR. EHRET: Show the condition of the bhiffat 6 got progressively worse, that became less and less 7 the approximate time of purchase and also a permit, 7 possible, and then it was almost just a matter of a uh, request. Excuse me. I have to consult with my 8 short week or two when that went down, that a large 8 9 client. We're off the record for a second. portion of the bluffwent in, and at that point, it 9 10 MR. PETRIE: That's fine. 10 was probably within 20, 30 feet of my house, and 11 immediately thereatter I contacted the State to see (A discussion was held off the record.) 11 12 Q (BYMR. PETRIE): Mr. Bodnar, when you lost the what I needed to do to get a permit to do some work 12 13 bluff, was that in the spring of'97? 13 to try to restore the bluff-- or not restore it 14 A Yes. 14 but to put something in to prevent the rest of the 15 Q Was that as a result of a storm? 15 erosion or to slow down the erosion, I guess. 16 A I don't - I don't believe there was a storm. I 16 Q Would it be fair for us to understand, sir, that don't recall, but I don't think there was anything 17 whenever it was that this meeting at Lake Michigan 17 18 particularly unusual. 18 College occurred, that certainly at least at that 19 Q Youjustrememberthebluffbeinglostatthat 19 point in time you came to an understanding that 20 point in time? 20 problems that your property was experiencing was 21 A Well, I remember having a tree company out on a something more than just simply cycles of the lake 21 22 Friday because the three trees that -- the three 22 going up and down? large oaks that were at the end of the property 2 3 A Yes, that would -- would be about the time flame 2 3 24 were very close to the bluff and it looks -- they 24 that I realized that that was the case, maybe even 25 looked like they were undercut, so, I was going to 25 a little after, l~m not even sure that even before
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1 that I knew that there were other issues. Okay. What did you do with that information? Did 2 3 you do anything as a result of learning that 4 possibly something else other than the cycles of 5 the lake was causing the erosion to your property? 6 I didn't do anything with that information other 7 than hire people to bring out riprap and put down 8 to the -- at the bluff to try to protect my 9 property. I0 Q At this point in time that you're describing where 11 you had people bring out riprap and so forth, had 12 you suffered a fairly significant amount of loss of 13 property in your mind? 14 A At that point, the distance -- when I bought the 15 Q property, the shortest point from my house to the 16 -- to the edge oftbe bhiff was a hundred, hundred 17 and five feet, something like that, and that same 18 comer when the erosion really chomped in, in that short amount of time, it was somewhere in the 20 to 19 20 30 feet range, so, I lost a large amount quickly. 21 About what point in time is this that you're 22 A speaking just so that we've got some understanding 23 of what point of time this is? 24 This is spring of '97. 25 I am being silent on my end here just pondering,

have somebody come out on Monday and cut them down because I thought if-- when that bhiffgoes, it's going to take a lot of land with it. And, so, I talked to -- I don't remember who it was, but I do remember having somebody out, and then Sunday morning when I got up to look out the bathroom window, those trees were gone, and they had fallen down to the bottom of the bhiff and took a large amount of property with it. Sir, this might seem fairly obvious, but it was only after you lost the bhiff that you then had the various efforts involving riprap and so forth? Is that a correct understanding on my part? Yes. Okay. The meeting at Lake Michigan College, I asked you what you did with that information, and one of the things you mentioned was the idea of going out and getting the fiprap. And, so, I am coming back to that to see if that in some manner refreshes your memory as to when that meeting at Lake Michigan College occurred. I don't think I said that at the meeting I got the idea of putting riprap down. I said that other people had been talking about losing their bluff, and they were lalking about the impact of closing 800-536-0804 / 269-343-0118

Moretti & Murphy Reporting

Case 1:99-cv-04451-ECH
Andrew Bodnar

Document 172-19

Filed 02/26/2007

Page 6 of 8
April 28, 2006 (Pages 22 to 25)

Page 22 1 2 3 4 5 6 7 8 9 l0 ll 12 13 14 the pier and what that had on the property south of the pier, but I don't know, honestly, when that -whether that was before or after the trees and the bluff disappeared. Prior to the bluff disappearing, I was trying to find a contractor that could come out and repair the sea wall, even at the point that it was laying down, because in my mind that was the best solution to protect the bluff. And then once the bluff was down, at that point it was obvious the only thing I could do was to put riprap down to protect from the water further coming into the property. I'm sorry, but I don't know -- I can't pinpoint the time of the meeting at the college. I can appreciate that, and there is certainly no need to apologize. Would you feel comfortable, for example, in placing that meeting as occurring, say within a year, plus or minus a year of when you lost the bluff as an example of trying to place it -- trying to place it in time? I would say it's most likely that it would be in that time period, yes. Do you recall - now this is going to really test your memory. Do you recall the name of the Army Corps of En~neers person who spoke at this meeting Page 23 1 2A at Lake Michigan College? Uh, I don't. I -Do you recall anything that the person might have said about the type of work they do for the Corps? Well, he was the -- I think the area representative or seemed, if I remember right, a lot of people in the audience knew him, and he was -- if I remember, had pretty long hair, maybe a ponytail or something like that, maybe a beard. I am not a hundred percent sure but that is -- I think he was out subsequently at some point. I wasn't there, but my wife said there was a guy that was out when they were putting the rocks in the hole out by our properly, and I think it was -- may have been the same person. I really I'm sorry. I really can't pinpoint that. I am just kind of going by what I thought - I know he struck me at the point when I saw him that I wouldn't have pictured him in that position, I guess. Sure. From his appearance. Sir, are you aware of any effort by the Army Corps of Engineers to address erosion problems in the vicinity there south of St. Joseph Harbor? 1 2 3 4

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Well, if you want to classify me as a lazy homeowner, that is probably most accurate or distracted or busy with other activities that I consider more important because what I know about that is basically my neighbor to my south is - has got more free time than I do, and on occasions when I had a time to talk with him, he would fill me in on what was going on and, really, my knowledge about what transpired, I guess, really came in the last few years after being more aware of what appears to be the problem. If you look at the erosion pattern that transpired in front of my house, my neighbor immediately to the north, his sea wall was completely gone. His neighbor to the north still had his sea wall intact. So, the water came in and gouged out his property, continuing to my property. At the south part of my property, where my sea wall was still partially intact, that was the north part of the Wilschke property, and right immediately south of my sea wall, there was another big gouge-in area. And, so, as I put two and two together and you look along the coast line, you can see that every time there's something that sticks out, there is something that gouges out in behind Page 25

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it. And, so, the more I read in the paper and learned from the neighbors, I guess things made more sense to me as far as what's causing the problem. 5 Q The name of your neighbor to the south, sir? 6 A Roger Wilschke. 7 O I can understand from your description here your 8 recitation about how your knowledge increased. 9 Did you have any understanding of efforts by the i0 Corps to address the problems of erosion that ii property owners were experiencing there south of 12 the St. Joseph Harbor? 13 A Well, I really didn't pay attention to it. I lalow 14 they were pumping sand out of the river into the 15 lake. Whether that had any benefit or not, I 16 didn't really -- it didn't really correlate with me 17 at the point. I have since that time, before 18 getting involved in this, I did go to a number of 19 meetings where John was present and had made 2O presentations and attempted to explain, you know, 21 the importance of the sand being fed down the 22 shoreline, and that makes a lot of sense to me. 23 And just looking back in retrospect and seeing the 24 patterns of erosion and so forth, that seemed to 25 make logical sense to me. 800-536-0804 / 269-343-0118

Moretti & Murphy Reporting

Case 1:99-cv-04451-ECH
Andrew Bodnar

Document 172-19

Filed 02/26/2007

Page 7 of 8
April 28, 2006 8 (Pages 26 to 29)

Page 26 i 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Sir, you had referred to a gentleman by the name of John. Is that Mr. Ehret? A Yes, uh-huh. Q The knowledge that you had about how the Corps was pumping sand out of the lake and, as you put it, that didn't really correlate with you, in light of that, did those efforts by the Corps have any impact on when you decided to bring this lawsuit? A No. I thought they were just working with dredging the fiver. I didn't think that there was any point or goal of aiding in the lake restoration. Q Sir, when we spoke with Dr. Okonsld a couple of days ago, he mentioned receiving a letter from Mr. Ehret in December of 1998 talking about a possible lawsuit. Did you receive a similar letter? A Yes, I believe I did. Q And do you recall what that letter discussed? A You know, roughly the issues about the shoreline disappearing and what -- I think what the people on the shoreline felt was the cause and that they felt at that point that this was the closing up of the pier that was largely due to the erosion problems we were having. That is my -Q You didn't join the lawsuit or any kind of an effort to bring a lawsuit at that point in time, Page 27 3_ 2 3 4 5 6 7 8 9 10 312 13 14 15 16 17 18 19 20 21 22 23 24 1 did you? 2 A No. 3 Q Why is that? 4 A Well, I think I got one letter and probably put it 5 on my dresser with piles of other things that I 6 don't have time to read, and I think at that point 7 the water level was lower than normal, and I hate S to go back to my business situation, but I am very 9 active in my business and there is high and low 10 spots of the economy, and although -- even though 11 3- things are high, my work level is generally -- the 12 number of hours makes it very difficult for me to 13 do other things and to follow through. 14 I think at one point I did talk to my neighbor 15 to the south and he said it was already too late 16 when I asked him about it, I think the following 17 spring. And then subsequent to that, several 18 times, you know, we tried to get into it, but each 19 tune I had talked to John he said it was already 20 too late and he was obligated not to add additional 21 people. 22 Q I see that you filed suit in this case in December 23 of 2005, is that fight? 24 That's correct. A Q Why did you wait until December of 2005 to bring 25 1 3 4 5 6 7 8 9 i0 ii 12 13 the lawsuit?

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2 A Well, I am not really sure. I guess I had more
time to get involved with it at the time; and as I looked at the situation and the lake, it keeps progressively getting worse and worse, and it appears t~om the top that there isn't any sand let~ anymore even at the edge of the bluff, and I just feel like something needs to be done to correct the situation, and I really wasn't sure if-- if my getting involved would help it or not, but I thought that because of the situation of our property was right in the middle of some of the worst areas, it might be beneficial. 3-4 Q I have one last question for you, sir. Going back 3-5 to that meeting at Lake Michigan College, did you 16 attend that meeting with Dr. Okonski? 3-7 A I don't remember. 3-8 MR. PETRIE: I have no other questions at this 19 time, sir. 2O EXAMINATION 21 BY MR. EHRET: 22 Q John Ehret speaking here, and I would like to ask a 23 few questions, Mr. Bodnar. When discussing the 24 gentleman from the Corps, you said that he came to 25 your property at the time they were putting rocks Page 29 in the hole. Can you describe what you mean by rocks in the hole? A Uh, well, they had a big barge out there with some big boulders, and they were placing them in the lake, and later I found out that it was an effort to try and fill an area that had been -- I don't know how that hole was created exactly, washed out or what, but it was -- I believe it was an area of sand that had been washed out and it was just dirt or clay or whatever just below the lake, and they were trying to fill that in so that it would prevent, I would assume, further -- further problems. Q And you indicated that you had received a letter from me, and did you ever receive a letter from a law finn by the name of Straub, Seaman & Allen? A Yes, Idid. Q Do you have that letter in your file there? A Maybe. You can see why l have a secretary. Q I see now you are looking through your file, and it's just like my file; it's not jumping out at you. Do you remember, while you are looking, who signed that letter? A Uh, I assume it was John Donahue possibly. I found the envelope. I don't have the letter. 800-536-0804 / 269-343-0118

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Moretti & Murphy Reporting

Case 1:99-cv-04451-ECH
Andrew Bodnar

Document 172-19

Filed 02/26/2007

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April 28, 2006 12 (Pages 42 to 45)

Page 42 1 2 3 4 5 1 MR. PETRIE: John. 2 MR. EHRET: Yes. 3 MR. PETRIE: If-- if that's the survey, that 4 is Exhibit 5. 5 MR. EHRET: I'm sorry. You're correct. 6 Do you recognize that? 7 Yeah, it's -- it was probably purt of the survey; I 8 assume probably when I bought the property or 9 somewhere in that neighborhood. It's dated 10 12-7-88, which would be - I said I bought the 11 house in '89. It might have been at the end of'88 12 and then I moved in in '89. I had about six months 13 of work done on it before I moved in. I don't know 14 the exact date. 15 And does that - does that survey purport to 16 represent the condition of the property or the size 17 of the property approximately at the time you 18 purchased? 19 MR. PETRIE: Lack of foundation, objection. (BY MR. EHRET): Do you recall having ordered this 2 0 21 survey? 22 I don't, no. MR. EHRET: Okay. Since it's a public 23 24 document, I am going to ask that it be entered and 25 we can take up the authentication later because I Page 43 1 drink it will be helpful to you. I am not going to 1 have him identify the remainder of these documents 2 2 3 because they're - they're self-authenticating and 3 4 having come from the DEQ and the Army Corps; and in 4 5 5 the interest of expediting, unless you have some 6 6 questions of your own, I have no further 7 7 questions. 8 MR. PETRIE: The only comment I have, John, is 8 9 9 that the mere attaching of an exhibit to the record 1o 10 does not really advance anything unless there is 13_ 11 some testimony associated with the contents of the 12 12 exhibit; but if you don't want to ask questions 13 13 about the exhibit, that is fme. 14 MR. EHRET: Well, I believe that we can retrace 14 15 15 our steps here and relate these documents to your 16 questions. 16 17 17 MR. PETRIE: Well, you know, ultimately, the 18 18 testimony has to come from the deponent, so, it's 19 your choice. 18 20 20 MR. EHRET: Well, we can go through this and 21 21 it's going to constitute nothing more than Mr. Bodnar reading back what is on these documents. 22 22 23 MR. PETRIE: It's your choice how you want to 23 24 24 handle it. 25 Q (BY MR. EHRET): Are all these documents, Exhibits2 5 Moretti & Murphy Reporting

Page 44 1 through 8, these are documents that were in your files? A Yes. Q Correct? A Correct. Q And you brought them here today? A Yes. Q And do you remember receiving each and every one of these documents? Well, let's start with Exhibit 1. Did you receive Exhibit 1 ? A Iamsureldid. Q Yeah. A I don't remember to '97 getting the mail but, you know. Q Okay. But it was in your file? A Yes. Q Anditisa-A I am sure I received it. Q And it's from the Army Corps of Engineers and it is signed by John C. Cramblet. Do you recognize the document now? A Yes, I -- I remember now that at the time l think we required three different permits to proceed with what we were going to do. This was the permit from the Army Corps of Engineers, and then there is also Page 45 one from the State of Michigan. Q You are referring to what's marked as Exhibit 2? A Right, from the DEQ. Q And would you describe Exhibit 2, please. A Uh, this is the -- it says: "This permit is granted under the provisions of the Natural Resources and Environmental Protection Act 451 PA 1994 specifically Part 325 Great Lakes Submerged Lands," and this describes what we propose to do as far as replace -- or placing riprap at the -- on the bluff to protect the shoreline. Do you want me to read this? Q Sure. Go ahead and read it. A "Place approximately 500 cubic yards of clean concrete riprap and large concrete blocks along approximately 280 feet of shoreline below the ordinary high water mark, another 9700 cubic yards of concrete riprap fill will be placed above the ordinary high water mark. All work shall be completed in accordance with the attached revised plans dated July 18th, 1997." Q So, there are plans attached to this document. Do you recall -- I mean, is that correct? A Yes. Q And did you prepare those plans? 800-536-0804 / 269-343-0118

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