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Case 1:99-cv-04451-ECH

Document 172-10

Filed 02/26/2007

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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, and ERROL L. & SUSAN H. STONE,

as Trustees of the Susan H. Plaintiffs,
VS.

i}Action 04-277L (Consolidated)

UNITED STATES OF

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19 2O 21 22 23 24 25

PAGE 1 TO 96 The Deposition of MARC []EL MARIANI, Taken at i00 Main Street:, St. Joseph, Michigan, Commencing at 1:23 p.m., Wednesday, March 15, 2006, Before Lori S. Johns, CSR 1097

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Case 1:99-cv-04451-ECH

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76 1 A. Out into the lake. 1 which was: Do you recall when the idea the piers in 2 Q. And this is separate from what you were 2 St. Joseph harbor, you just kinda sparked the question 3 describing in the early'70s, I gather, ls this a 3 when you said that this period of time, '90 to '96, 4 separate episode of hearing the idea of the Corps 4 was a major period of time for people's concerns and 5 so forth. And with people's major concerns often 5 taking dredgings and placing them? 6 A. Taking dredgings was much later. 6 comes, I would think, voicing of ideas. 7 Q. Okay. 7 A. Yeah. But I'd be 8 Q. Would you place it in that period of time? 8 A. I think much later that I heard. 9 A. I'd be, you know, again, I don't know. It 9 Q. Can you give some sense -10 A. Well, I mean, I thought they always did it, 10 strikes me that when I heard it, it was like, Marc, 11 but then somebody clarified, oh, the reason they do 11 where have you been, that was done a long time ago 12 kind of comment to me. So to dnae when I learned it, 12 that is to help the beaches and build, and I said, 13 well, aren't they still doing the beach, building the 131 don't think, even though I can't do that, wouldn't 14 beach with the sand from that, and, well, no. They 14 tell me when it actually happened, so I don't, you 15 take some out into the lake and they dump it, and 15 know, I may have beard it in the '90s when this other 16 stuff was, you know, I probably had more conversations 16 that's also intended to, so where in the context that 17 occurred. But when you asked if I had any other, 17 between '90 and '96 because that's where I got hit 18 real hard, so I was probably asking more people, rm 18 those are the only three possible things I ever heard 19 the Corps of Engineers did pro or con toward beach 19 sure others got hit hard during those years, so it was 20 erosion. One was the beach building project, the con 20 probably more discussion. 21 would have been, was perceived by many and myself of 21 That's when the township had the 22 closing the piers, and the other one was dredging, and 22 meetings about building something. So it was, the 23 putting the dredgings out into the lake, but again, 23 issue was on the floor, so I'm sure I had more 24 conversations. Now, whether that was When I had that 24 that didn't surprise me because I thought that's 25 always what they thought with dredgings. You wouldn't 25 conversation, I don't know. 75 1 Q. You don't know? 2 A. No. And I didn't bother to research it, 3 either, obviously, because I'd know something here. I 4 mean, I didn't go on line or say I'm going to write to 5 the coalition and find out what they know about the 6 closing of the pier, call the Corps, call them up or 7 what. It just struck me that didn't you realize 8 they've closed off those piers and that's affecting 9 you was the conversation, and Pm like, oh, duh. So I 10 was out of the loop. So, don't know more. 11 Q. Any other awareness of efforts by the Corps 12 to address erosion problems for the property owners 13 such as yourself south? 14 A. Well, I guess heard vaguely somebody 15 mentioned that they were taking, they were taking 16 dredgings out of the river and taking them out and 17 dropping them in the lake with hopes of building 18 beach, building sandbars, something like that. That's 19 about the only other, but I thought they always did 20 that anyway. I mean, where else would they take the 21 dredgings. I mean, I know they were using them to 22 build beach, but. 23 Q. Do you recall roughly when it was that you 24 vaguely remember heating this idea of them taking 25 dredgings? And this is -20 (Pages 74 to 77) COURTREPORTERNET.COM (800) 960-1861 77 1 drop them in the river, I wouldn't think so. 2 Q. When you say pro-con, the three different 3 things that you described? 4 A. Yeah. Q. Can you characterize, vis-a-vis beach 5 6 building, pros and con, how from your vantage point 7 did you view each of those? 8 A. Well, I thought the beach building was 9 foolish, just because of my observations of what 10 happens south of any obstruction, you know. It's 11 going to take it right back out again. You have to 12 either get rid of that obstruction that's sticking out 13 or you have to put so darn much stuff here and just 14 count on yon're going to lose half of it every year 15 and you're going to have to rebuild it every year, and 161 think they did wind up rebuilding it every year, 17 which made me wonder, well, is this just a continual 18 effort to maintain or are they thinking at some point 19 this is going to be the cure all, because it just made 20 me wonder how many years can they do this. And why 21 are they doing this for just 20 people when all the 22 way down the beach there were people that were losing 23 beaches and had their houses at risk. Mine was far 24 enough back, I wasn't at risk, but, you know, here, 25 Surfside, the condos next to me, their pool was on the

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78 1 edge. Nobody was coming to them and putting sand in 2 to protect them. 3 Q. Did I understand fairly or accurately your 4 earlier testimony that you did not view the beach 5 building project as something that was, in some 6 manner, meaningfully addressing the erosion on yoltr 7 property? 8 A. No. Yes, you did, because my thought at 9 that, you know, my thought was in their foolhardiness, 10 maybe I would gain a little bit by only my theory that 11 it's going to gouge it out there and it's going to 12 dump it somewhere, but then I also put that in 13 perspective and said there's five miles of beach 14 between me and there, how much of this might I get, 15 and then I came to my, you know, senses and said if it 16 added one inch, it would be a lot, you know, that far 17 away. But again I thought, you know, then what would 18 you do that, you know, how many years are they going 19 to do this, and it's foolish anyway, because I think 20 I'm still in the area, if I had to speculate a theory, 21 that that pier is affecting beaches all the way down 22 probably to Michigan City, so if it's doing that, 23 okay, and you pile some sand here and that sand moves 24 down, that sand may stop in my place until the next 25 winds, but eventually it's going to wind up down here. 79 1 And I would sense it's going to get dumped at the end 2 of the lake, ifs not going to settle in any one place 3 here and stay there because the impact of this is 4 going to, the gonging is going to continue to occur 5 all the way down till the lake is no longer doing this 6 (indicating), and that's where the sand gets dumped. 7 For all I know, that's all the way over here on the 8 other side of the lake. 9 Q. So in some, you didn't see the Corps', in 10 some, you did not understand or view the Corps' beach 11 building project as something that was providing 12 relief to the erosion on your property was 13 experiencing? 14 A. No. 15 Q. Is that right? 16 A. P, Jght. 17 Q. You did not see it? 18 A. Did not. 19 Q. How about the dredging that you described 20 that you were aware that the Corps was doing 21 periodically in dumping sand, did you see that? 22 A. Out in the lake? 23 Q. Yeah. Didyouseethatasanykindof 24 meaningful or assistance to the erosion you were 25 experiencing?

80 1 A. No. 'Cause there was no, no, the one 2 thing, there was no tangible cause-and-effect thing 3 and I, I guess the gouging thing, I had some sense 4 about how that worked. I did not have a sense of if 5 you drop some sand here in the lake, where does that 6 sand wind up. I knew that if you put something out in 7 the lake, it takes it out from belfmd it. I don't 8 know if you drop sand where that, what that does, so I 9 had no theory or no 10 Q. In your, as you know or obvionsly you don't 11 know, you have to approximate, in the course of your 12 decision-making process leading up to bringing suit, 13 did either of those kind of efforts by the Corps 14 affect your decision as to whether or not to bring 15 suit? 16 A. No. 17 Q. It didn't have any effect -18 A. No. 19 Q. -- to make you hold off from bringing the 20 lawsuit? 21 A. No. 22 Q. Is that a no? 23 A. That's a no. 24 MR. PETRIE: Let's take a break. (Recess had from 3:22 to 3:24 p.m.) 25 81 MR. PETRIE: Why don't we go back 2 on the record. John, let's go back on the record. 3 BY MR. PETRIE: Q. Mr. Del Mariain, I wanted to ask just a 4 5 couple of follow-up areas. They both relate to the 6 idea that the piers being flow through that you've 7 described that you heard information about. And the 8 first area or line of inquiry I wanted to ask about 9 was: You've lived here for years and as a young man 10 growing up here. Did you ever have opportunity or the 11 occasion to actually walk down to tbe jetties and 12 observe them as you were growing up? 13 A. Yeah, I walked on the piers a few times. 14 Q. And is that something -15 A. Not often. 16 Q. I beg your pardon? 17 A. Not often, but I was on them a few times. 18 Q. During those occasions, did you ever notice 19 or observe whether or not the piers, from your vantage 20 point of looking at them, were flow through or not? 21 A. No. I never, some of the kids used to 22 drive offthe piers down there. I never found it to 23 be safe, so I never did that. And I don't recall 24 whether I noticed or when I might have noticed that 25 they seemed to have at one point have been cement, the 21 (Pages 78 to 81

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