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

Case 1:99-cv-04451-ECH

Document 172-17

Filed 02/26/2007

Page 1 of 2

Deposition of Leonard Smith 1 1 2 3 4 vs. 5 6 7 8 9 I0 ii 12 13 14 15 16 17 18 The Deposition of: 19 LEONARD SMITH 2O 21 22 23 Reported by: 24 25 Taken on Behalf of the Defendant MAY 17, 2006 THE UNITED STATES OF AMERICA, Defendant. EUGENE J. FRETT, Individually and as trustee of the Victor J. Horvath and Frances B. Horvath Trust, and DONNA P. FRETT, Plaintiffs, vs. THE UNITED STATES, Defendant. No. 05-1353L Judge Emily Hewitt THE UNITED STATES Defendant. OF AMERICA, No. 99-4451 L IN THE UNITED STATES COURT OF FEDERAL CLAIMS JOHN H. and MARY E. BANKS, et al, Plaintiffs,

STONE, ERROL L. & SUSAN H.., in their own right and as Trustee of SUSAN H. STONE TRUST and the ERROL L. STONE TRUST, Plaintiffs, vs.

No. 04-277 L Judge Emily Hewitt

MEMRA SURLES, CCR Post Office Box 315 Summertown, TN 38483-0315 (931) 964-3306 / (31) 388-9888

Bamks v. United States of America EXHIBIT 15

Case 1:99-cv-04451-ECH

Document 172-17

Filed 02/26/2007

Page 2 of 2

Deposition of Leonard Smith

34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 i8 19 20 2l 22 23 24 25 Q. Yes, sir. Did you ever regain that foredune and the trees? Obviously, you wouldn't regain the trees once they were lost, but did you ever regain the foredune? A. No, we didn't. Q. Did you ever reach a point in time where you concluded that we're never going to regain tbat foredtme? A. I don't think I Q. Consciously, have you ever tbougbt about that? A. No, I don't think. It's gone; I never thought about it coming back, really. Q. The pause that's occurrhlg right now is ]list me taldng a look through some of my notes. Let me change the line of questinning to another area, and that involves your understanding or I~owledge about efforts by the United States or, more specifically, the U.S. Army Corps of Engineers to address or remedy problems of erosion south of the St. Joseph Harbor. Do you have any understanding or awareness of those ldnd of efforts bythe Corps? A. No, I don't either way, sorry to say. Q. That's f'me, sir. Let me ask it a little bit more specifically. Are you aware that the Corps of 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Engineers had a program for a period of time in which they dumped sedlment off the shore there close to the shorenne for ti~e purpose of nourishing tile shoreline? Do you have an awareness of that program? A. I do have an awareness of that, but not -- my answer is, yes, I do. Q. Can you tell me what your awareness of that program was? A. I would see barges come and drop sand off. But to finish the question, and maybe it isn't going to help here, but it should, this would be in front of my house in Indiana, so I'm assuming they were doing the same tiling in Michigan, although [ didn't know about that. Q. Sure; okay. A. But I know they did it in Indiana, because I would see when they do dredging, they would bring the barges along the lake front and drop sand there once in a while. Actually, I don't know if that

36 1 not that kind of thlng was being actually done there in 2 the vicinity of your property south of the St. Joseph 3 Harbor? 4 A. No, I don't. 5 Q. How about maybe not in the vicinity of 6 your property itself, but between your property going 7 north to the St. Joseph Harbor itself, are you aware of 8 any kind of efforts to do that in that span of the 9 shoreline? A No, I wasn't. But if they did, I'm 10 11 happy. 12 Q. I appreciate that. I can appreciate 13 that. So given your lack of awareness, thell, about 14 that kind of a program or the vicinity south of the 15 St. Joseph Harbor to include your property, would it be 16 correct for me to understand that the existence of that 17 ldnd of a program, one which you did not have an 18 awareness of, did not in some manner weigh in on when 19 you decided to bring this lawsuit? 20 A. Read that back to me again. 21 Q. I beg your pardon? 22 A. I was asking her to read that back again. Q. Sure. Or if you can or if you'd like, 23 24 I'd be glad to restate it, because it was a fairly long 25 question.

37 1 A. Oh, okay. 2 Q. Let me go ahead and try to restate it. 3 Sir, you brought this lawsuit in 2000, and what I'm 4 trying to get an idea of is, given the fact that you 5 didn't have an awareness of an army program there south 6 of the St. Joseph Harbor to nourish the beach, that did 7 not, then, affect when you brought your lawsuit; is 8 that ri#lt? 9 A No, it didfft affect it. I didn't know 10 about it, so the question - no, 1 guess. 11 Q. So it's kind of hard for it to have an 12 impact on when you decided to bring your lawsuit If you 13 aren't aware ofit? 14 A. Pd ght; yes. 15 Q. Give me another moment here, sir. 1 want 16 to check my notes. 17 (Short break.) 18 MR. PETRIE: Mr. Smith, I have no 19 other questions lbr you at tiffs point. Mr. 20 Ehret? 21 MR. EHRET: I have a few, 22 ***** 23 EXAMINATION 24 BY MR. EHRET 25 Q. When you used to walk as a young boy~ you

20 was the Army Corps of Engineers, but I remember them 21 dredging out the harbor and then they would dump the 22 sand on the lake. To be candid, I don't know that the 04 23 Army Corps of Engineers did that, but I know i was 24 being done. 25 Q. Do you have any awareness of whether or t

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