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

Case 1:99-cv-04451-ECH

Document 172-18

Filed 02/26/2007

Page 1 of 3

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

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.

~Action 04-277L (Consolidated)

UNITED STATES OF

/
PAGE 1 TO 47 The Deposition of ROGER WILSCHKE, Taken at I00 Main Street:, St. Joseph, Michigan, Commencing at 4:00 p.m., Wednesday, March 15, 2006, Before Lori S. Johns, CSR 1097.

COURTREPORTERNET.COM (800) 960-1861 EXHIBIT 16

Case 1:99-cv-04451-ECH

Document 172-18
34

Filed 02/26/2007

Page 2 of 3

36 1 Photograph 1 Q. Can you, so you're using the iron 2 WAS MARKED BY THE REPORTER 2 breakwater as a point of reference? 3 FOR IDENTIFICATION 3 A. Yes. 4 BY MR. PETRIE: 4 Q. Does the location of the iron breakwater, 5 Q. Sir, are you aware of any efforts by the 5 in your mind, does that equate to the location of 6 Corps to address the erosion problems that various 6 where the ordinary high water mark itself was -7 landowners, such as yourself, have experienced south 7 A. No. 8 of the St. Joe harbor? 8 Q. -- at that time? 9 A. At one time, but that was before we moved 9 A. Yes. 10 Q. Can you describe those for me, please? 10in. 11 A. We spoke earlier about them bringing barges Okay. Are you able, using it nonetheless 11 Q. 12 of rocks over to fill holes in the lake, and I think 12 as a reference, to give us some sense of where the 13 at different times when they dredged the river, they 13 ordinary high water mark was? 14 tried to funnel the sand back into the Silver beach 14 A. Yes. 15 Q. Vis-a-vis where that iron breakwater was 15 area. 16 Q. Any other efforts by the Corps that you are 16 located? 17 aware of?. 17 A. This was the iron breakwater. 18 Q. Okay. You're looking at a photo for me? 18 A. Not in our area, no. 19 A. And this is the edge of the iron breakwater 19 Q. I apologize again. I was going to ask you 20 what time frame would you place the Corps bringing the 20 here (indicating). 21 barges over? 21 Q. Yes, sir. 22 A. I think it was like six years ago, but rm, 22 A. And we moved in, our beach went out 231 just don~t remember. 23 approximately this close, and now. 24 Q. The location of where they were placing the 24 Q. A little bit beyond the breakwater? 25 A. And now it's back here. That's how I use 25 rocks and so forth, about how far is that from your 35 1 that as a reference. 2 Q. And just so we're able to capture that, 3 let's go ahead, if we could, and mark that as Exhibit 4 74. As I understand your description, correct me if 5 I'm wrong, you're placing where you're property 6 extended to a time you bought it as more lakeward? 7 A. Oh, yes. 8 Q. The lakeward side of that iron breakwater 9 that we see in this picture? 10 A. Yeah. 11 Q. Is that right, sir? 12 A. Yes. 13 Q. Can you, if you recall, can you give us an 14 estimate of how much further lakeward your property 15 was located, the edge of it, at the time you bought 16 it, vis-a-vis where we see this iron breakwater today? 17 A. Probably 30 or 40 feet. It was almost out 18 there. 19 Q. And again, this is a photo that you took 20 this last weekend? 21 A. Yes. 22 Q. Thank you. MR. PETRIE: If we could, please, 23 24 mark that as Exhibit 74. 25 DEPOSITION EXHJBIT 74 10 (Pages 34 to 37) COURTREPORTERNET.COM (800) 960-1861 37 1 property?. 2 A. It was about four, maybe live properties 3 north, and then maybe 200 feet out into the lake. 4 Q. Did you have any understanding, when they 5 were doing this, as to whether or not that effort by 6 the Corps in some manner was going to address or help 7 the erosion that you were experiencing'? 8 A. No, I had no idea. 9 Q. How about on the Corps' efforts when they 10 dredged the river, over what period of time were those 11 kind of efforts undertaken that you know about? 12 A. From time to time, Congressman Upton gets a 13 project down here to open up the channels in the river 14 so the ships can come in, and that's when they would 15 try to put the sand around the pier down on the beach. 16 In fact, they run them over the pier out to the beach. 17 Q. Do you have any understanding or knowledge 18 about why the Corps dredges the harbor? 19 A. To deepen the channel so that the ships can 20 come in. 21 Q. Do you have any understanding about whether 22 or not that effort to dredge the channel and then to 23 place the sand was intended to provide some kind of 24 relief or address the erosion problems that property 25 owners experienced?

3

Case 1:99-cv-04451-ECH

Document 172-18

Filed 02/26/2007

Page 3 of 3

38 1 A. I think that was secondary. The nffm 2 concern was to open up the channel so that the, the 3 rocks, and the different ships that come into the 4 harbor bere can get in. 5 Q. Do you have any understanding about whether 6 or not that effort, as you put it, the secondary sort 7 ofpurposo to address erosion, do you have any 8 understanding whether, or belief, that that kind of 9 effort in some manner was going to assist in 10 addressing the erosion your property was experiencing? 11 A. No. 12 Q. Just so that I'm clear, no, you don't have 13 any idea or no, it wasn't? 14 A. I don't think it was enough sand out of the 15 river to come all the way down to my property, which 16 is approximately seven miles south of St. Joe. 17 Q. Have you, at some point in time, up through 18 the point in time that you filed the lawsuit, did you 19 reach an understanding or belief that the Corps, at 20 least in part, was responsible for the erosion your 21 property was incurring? 22 A. I believe they were involved in it, yes. 23 Q. Can you give me some idea as to when you 24 reached that conclusion in your own mind, 25 approximately, what point in time are we talking 39 1 about? 2 A. Sometime before I filed the lawsuit. 3 Q. Okay. Are you able to peg it -4 A. No. 5 Q. -- to any general point in time 1990, 1995'? 6 Hard to say on that? 7 A. Hard to say. Q. Okay. The various efforts that you've 8 9 described here that you had some understanding that 10 the Corps was taking that in some manner was 11 addressing erosion, the barging, the dredging of the 12 river, did those efforts by the Corps in any manner 13 delay you or keep you from bringing the lawsuit? 14 MR. EHRET: If you remember. 15 A. I don't -- say that, please. 16 BY MR. EHRET: 17 Q. Sure. In other words, at some point in 18 time, you formed a belief that the Corps was a part or 19 responsible of the, for the erosion your property was 20 experiencing. What I'm trying to get a sense of is, 21 in your mind, as you're thinking through whether or 22 not to bring a lawsuit, whether or not these kind of 23 efforts by the Corps had the effect of having you hold 24 off from bringing a lawsuit? 25 A. No.

40 1 Q. And thafs, if I understand your answers 2 here correctly, is because, at least in your mind, 3 those efforts were not going to address the erosion 4 your property had experienced? 5 A. Right. They did not. 6 Q. What I'd like to do, sir, is take a break 7 and mypractice is when I get out of questions, I ask 8 Mr. Segrest here if I've overlooked anything, and what 9 I'd like to do is do precisely that, and ifI have a 10 few follow along ones, I might, and then John here 11 will have an opportunity to ask you some follow on 12 questions as well. Okay. MR. PETRIE: If we may, let's take 13 14 a break. ! 5 (Recess had from 4:57 to 5:02 p.m:) MR. PETRIE: Let's go back on the 16 17 record. THE WITNESS: Yes. 18 19 BY MR. PETR~: 20 Q. Sir, I had just one last thought I wanted 21 to cover with you, make sure I am clear about your 22 tmderstandmg about what was happening with your 23 property. You've described for us, and I appreciate 24 it, your effort to describe the various types of 25 losses caused by erosion to your property, and what I 41 1 wanted to ask you in light of that was: Whether you 2 had any sense that this was a temporary toss, these 3 kind of losses that you were having, that over time, 4 in some manner, the land, the shoreline would be 5 restored, or were you of the understanding that as 6 you'd go out there and you see the slippage and so 7 forth, that this was permanent Joss to your property? 8 A. It's a complex question. 9 Q. Yes. 10 A. Each time you see a loss like this, --

ll

Q. Right.

12 A. -- you hope it's the last one. 13 Q. Yes. 14 A. I have a friend that lives down the lake, 15 Bert Pearson. He also is an engineer, and he says 16 that sand, at rest or repose, takes a 65-degree angle. 17 So if you have erosion and it falls down and gets 18 washed away and everything, fmally when it reaches 65 19 degrees it will stop slipping. That would be the end 20 of it, but it never ends. 21 What's happening is like if you 22 have a pile of sand on your property, and a guy comes 23 with a fire hose and starts hitfmg it, it keeps just 24 washing away, and it's really not erosion. Erosion is 25 a natural process that occurs over hundreds of years

11 (Pages 38 to 41) COURTREPORTERNET.COM (800) 960-1861