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

Case 1:99-cv-04451-ECH

ROBERT KANE, MARCH 03, 2006

Document 172-11

Filed 02/26/2007

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Page 1 Page 3 1 IN THE UN/q~D STATES COURT OF FEDERAL CLAIMS 1 PRESENT: (Continued) 2 2 3 JOHNH. andMARYE. BANKS,) 3 UNITED STATES DEPARTMENT OF JUSTICE, 4 ERROL L. and SUSAN H. STONE, ) 4 ENVIRONMENT & NATURAL RESOURCES DMSION 5 as Trustees of the SUSAN H. ) 5 GENERAL LITIGATION SECTION, 6 STONE TRUST, et al., ) 6 (999 18th Street, 7 Plaintiffs, ) No. 9%4451 7 Suite 945, North Tower, 8 vs. ) Consolidated with 8 Denver, Colorado 80202, 9 UNITED STATES OF AMERICA, ) No. 04-277L 9 303-312-7327), by: 10 Defendant. ) 10 MR. TERRY M. PETRIE, 11 11 -and12 The deposition of ROBERT KANE, called 12 U.S. ARMY CORPS OF ENGINEERS, 13 for examination, taken pttrsuant to the Federal 13 (477 Michigan Avenue, Room 659, 14 Rules of Civil Procedure of the United States 14 Detroit, Michigan 48231-1027, 15 District Courts pertaining to the taking of 15 313-226-2215), by: 16 depositions, taken before NICOLE SCOLA, CSR 16 MR. GARY W. SEGREST, 17 No. 084-004524, a Notary Public within and for the 17 Assistant District Counsel 18 County of DuPage, State of Illinois, and a 18 Detroit District, 19 Certified Shorthand Reporter of said state, 19 appeared on behalf of the Defendant. 20 10th Floor, 155 NorthWacker Drive, Chicago, 20 21 Illinois, on the 3rd day of March, A.D. 2006, at 21 22 12:34 p.r~ 22 23 23 REPORTED BY: NICOER M. SCOLA, CSIL RPR, 24 24 C.S.R. Certificate No. 84-4524. Page 2 Page 4 1 (WHEREUPON, the witness was duly 2 sworn.) 3 ROBERT KANE, 4 called as a witness herein, having been first duly 5 sworn, was examined and testified as follows: 6 EXAMINATION 7 BY MR. PETRIE: 8 Q. Good 'afternoon, sir. How are you? Just fine. Thank you. 9 A. 10 Q. Good. Again, I appreciate you taking the time to come here today. 11 12 A. My pleasure. 13 Q. Have you ever been deposed before? 14 A. No, 1 have not. 15 Okay. Baptism, 1 guess, of sorts then. Q. 16 A. Yes. Let me give you a couple of thoughts to 17 Q. 18 consider during the course of it. One is that if 19 you don't understand the question that I ask, let 20 me know. I'll try to rephrase it, restate it so 21 that, hopefully, it makes sense to you. 22 A. Uh-huh. Q. The second thought for you is, like all 23 24 of us, a lot of times when we engage in 1 (Pages 1 to 4) ESQUIRE DEPOSITION SERVICES - CHICAGO 312.782.8087 800.708.8087 FAX:312.704.4950

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MR. JOHN B. EHRET, (20860 Greenwood Drive, Olympia Fields, Illinois 60461, 708-748-8975), appeared on behalf of the Plaintiffs John H. and Mary E. Banks and the Deponent;

EXHIBIT 9

Case 1:99-cv-04451-ECH

Document 172-11
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Filed 02/26/2007

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ROBERT KANE, MARCH 03, 2006 1 before -- how much longer in time before this was 1 time when the wave breaker was installed? 2 the wave breaker installed, if that refreshes your 2 A. I have some photos of my neighbors. MR. EHRET: Why don't you write a little note 3 memory? 3 4 A. I would say the wave breaker probably 4 on there with an arrow. 5 was installed in '88 then. 5 BY MR. PETRIE: 6 Q. Approximately? Q. Do you have a picture of your wind -6 7 A. Uh-huh, yes. 7 or, your wave break? Q. And the reminisce of whatever is left 8 8 A. Partial in 1989. 9 of it, is it -- is that -- it went by the boards Q. Okay. Sir, is this the one in the 9 10 here four years ago or is that the third revetment 10 lower left-hand comer? 11 wall that you lost four years ago? A. Yes. This is my neighbor's, the : 11 12 A. You're saying two different things. I 12 McKay's at the time, revetment wall. Mine -13 think-Q. You're pointing to the photo 13 14 Q. Yes, sir. 14 immediately to the right -15 A. The one wave breaker -15 A. Correct. 16 Q. Yes, sir. 16 Q. Of the one that has the date 8-6-89? A. The wave breaker was the first to go. 17 17 A. Correct. 18 Q. Okay. 18 MR. EHRET: Can I interject a question, 19 A. Okay. Then the revetment wall went. 19 Counsel? 20 Q. Which of the four revetment walls then MR. PETRIE: Let's go off the record. 20 21 went after the wave breaker? (WHEREUPON, discussion was had 21 22 A. Probably the second one. 22 off the record.) Q. Could you give me some sense in time 23 23 BY MR. PETRIE: when the wave breaker wall -24 24 Q. Sir, we have marked, or will have
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1 1 marked as Exhibit 48, this page that has four 2 2 photos on it, and we've been looking at two photos 3 on that page, one with the handwritten date 8-6-89 3 4 4 beneath it, which depicts what you call a wave 5 5 breaker, which is in the background of the 6 6 photograph behind two young children. 7 7 Your kids perhaps? 8 8 A. My daughter. 9 9 Q. Okay. Your daughter, the one on the 10 10 right then. ll 11 Then the photograph to the right, which 12 12 also depicts a wave breaker, is this on the McKay 13 13 property? 14 14 A. Yes, it would be. McKay's have three 15 15 lots, if you will, three basic lots. 16 16 Q. So, apparently, at least as of 17 August 1989, you had the wave breaker in place? 17 18 18 Do you recall -19 19 A. Not. Obviously, it's not the whole 20 20 wave breaker because it was removed -21 21 Q. Yes. Some of it was removed? 22 A. Yes. 22 23 23 Q. And I was wanting to ask, if you could 24 24 tell with seeing this photograph, how much

A. Went? Q. Yes, sir. A. Probably 1988 or '89. Q. The fourth revetment wall, when did it -- it's still in place? A. Yes. Q. When did you install it approximately? A. Two to three years ago. Wasn't it? MR. EHRET: I can't help you. BY THE WITNESS: A. I'm thinking two to three years ago because we had to do an enormous amount of consmaction once again for a deck, stairs, another deck. BY MR. PETRIE: Q. Yes, sir. I'm going to ask this question focussing on two different periods of time. I'm going to ask you first as it relates to the period of time before you bought your property in 1978. What I'm wanting to know is whether or not you have had any kind of an awareness of the Corps undertaking efforts to address the erosion
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ESQUIRE DEPOSITION SERVICES - CHICAGO 312.782.8087 800.708.8087 FAX:312.704.4950

Case 1:99-cv-04451-ECH ROBERT KANE, MARCH 03, 2006 02/26/2007 Document 172-11 Filed
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1 folks were down there on the beach taking 1 problem for property owners in the shoreline that 2 they reside along there south of the St. Joseph 2 photographs while you rented property? 3 Harbor? 3 A. It might have been when we rented 4 A. Was I aware of any -4 property. We had, you know, homeowners up there 5 Q. Yes, sir. 5 with beach access. So this is my wife and my 6 A. -- that the Corps came to -6 mother-in-law walking along the beach 7 Q. Made any kind of efforts to -7 (indicating). So it was probably before we bought 8 A. I'm not aware of any. 8 our property, obviously. 9 Q. -- address erosion in that stretch of 9 Q. Property in 1978. Okay. That's the 10 the shoreline south of St. Joseph Harbor? 10 only clarification I needed to follow up on. 11 A. I'm not aware of any. 11 Thank you. 12 Q. Same question focussing on that point 12 MR. PETRIE: No other questions for Mr. Kane. 13 in time when you bought your property up through 13 THE WITNESS: I'm free? 14 the present: Have you had any kind of an 14 MR. PETRIE: Not quite, sir. 15 awareness of the Corps having any kind of a 15 EXAMINATION 16 program or efforts to address the erosion there 16 BY MR. EHRET: 17 along the shoreline south of the harbor? And I'm 17 Q. I have two pictures I've shown you 18 talking that stretch of the shoreline down through 18 previously, and they're dated in April 1975, and 19 where the property owners such as yourself live. 19 one of them shows your house at the left side with 20 A. None. You're asking me if I was ever 20 the word Kane 18 at the bottom left-hand comer. 21 contacted by the Corps or -21 The second one shows your house in the 22 Q. Not if you were contacted, just simply 22 bottom right-hand side, but without your name on 23 if you had any kind of an awareness -23 it. The nearest name is McKay's name, but it's 24 A. No. 24 the same date?
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1 Q. -- of that kind of a program? 1 MR. EHRET: Could we mark these. 2 A. No. 2 (WHEREUPON, certain documents 3 Q. Or efforts to address that kind of 3 were marked Deposition 4 erosion? 4 Exhibit Nos. 49-50, for 5 A. No. 5 identification, as of 3-03-06.) 6 MR. PETRIE: I'd like to take a break, if I 6 BY MR. EHRET: 7 could, please. 7 Q. Looking at the exhibit that's been 8 THE WITNESS: Absolutely. 8 numbered 49 with your house identified in the MR. PETRIE: Thank you. 9 9 left-hand side. There's a wall that I can see 10 (WHEREUt~N, a short recess was 10 there. Now, is that the fourth wall that you 11 had.) l I referred to in your discussion? 12 BY MR. PETRIE: 12 A. Yes. 13 Q. Just one last point to clarify, and 13 Q. So that has survived so far? 14 this is from Exhibit 45. 14 A. Yes. 15 Sir, this is the one that had the two 15 Q. And is that a stairway I see that goes 16 photographs, 1976 and 1978. 16 up and over that wall? 17 A. Uh-huh. 17 A. Yes. There's stairs here (indicating). 18 Q. And I'm wanting to focus more on the 18 There's a deck, a lower deck here, and then stairs 19 one that's dated 1976 because I know that you did 19 leading up to the -- what used to be a cement 20 rent property out there before you bought the 20 patio is now a deck patio because half of that is 21 property in 1978. 21 lost. 22 So I was trying to determine whether or 22 Q. Maybe because of the shadows, I could 23 not that photograph that has the date of 1976, was 23 see in Exhibit 50 that lower deck and the upper 24 it indeed taken in 1976 at which point in time you 24 patio more clearly; is that correct?

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12 (Pages 45 to 48 ESQUIRE DEPOSITION SERVICES - CHICAGO 312.782.8087 800.708.8087 FAX:312.704.4950

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