Free Response - District Court of Federal Claims - federal

Case 1:99-cv-04451-ECH

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________) ) STONE, ERROL L. & SUSAN H., ) In their own right and as Trustees of the ) Susan H. Stone Trust and the Errol L. Stone ) Trust ) ) Plaintiffs, ) ) v. ) ) 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, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) ) JOHN H. and MARY E. BANKS, et al.,

No. 99-4451 L Judge Emily C. Hewitt

No. 04-277 L Judge Emily C. Hewitt

No. 05-1353 L Judge Emily C. Hewitt

DEFENDANT'S RESPONSE TO ORDER FILED JANUARY 10, 2007 Defendant respectfully provides the following response to the Court's order filed January 10, 2007. (Document No. 162). The Order directs defendant to file before January 16, 2007 at 3

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p.m., "a listing of all of the missing information to which plaintiffs are entitled but have not received." Id. Further, "[d]efendant shall also describe any outstanding tasks that it must complete in order to provide the necessary information to plaintiffs." Id. Here is a list of the missing information. Because the time and tasks necessary to produce the information varies, we have broken this list into three groups. 1. Group A The first group of information, set below in table format, comes from Dr. Nairn's declaration which was an exhibit to "Defendant's Response to Plaintiffs' Motion to Strike Dr. Robert B. Nairn's Expert Report." ("Defendant's Response") (See Document No. 155). See Exhibit 6 at App0066. Table 1a - Model: COSMOS (Longshore sand transport estimates) Model Input Data Volume

Deepwater wave data (from Baird Wave Hindcast ­ BWH) Lake level data

20 MB (8,000 pages) Part of deep-water data file 120 KB (72 pages) 1 line

Nearshore profile shapes

Sediment grain size

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Table 1b - Model: Baird Wave Hindcast (BWH) Model Input Data Volume

Wind data

3.8 MB (670 pages) 1.5 MB (300 pages) 1.9 MB (320 pages)

Fetch distances

Overwater measured wind and wave data

Table 1c - Models: HYDROSED and STWAVE (Nearshore wave transformation) Model Input Data Volume

Deepwater wave data (summary form from BWH output) Bathymetry

20 MB (8,000 pages) 1.78 MB (327 pages)

Table 1d -Model: HYDROSED (Bypassing and offshore diversion potential) Model Input Deepwater wave data (summary form from BWH output) Bathymetry River flow input (summary form) Sediment grain size Data Volume 20 MB (8,000 pages) 3.3 MB (600 pages) 1 line 1 line

Table 1e - Model: SWAT (Watershed sand transport) -3-

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Model Input Precipitation and Temperature

Data Volume 1.9 MB (360 pages) 13 MB (9,650 pages) 665 KB (240 pages) 5 MB (4,800 pages) 58 KB (22 pages)

Land Cover/Use

Topography

Soils Data

Dams

Table 1f - Model: RMA2-SED2D (River flow and sediment transport) Model Input Data Volume

Output from SWAT on flows and sediment 136 MB load Bathymetry (21,900 pages) 16.5 MB (1,000 pages) 100 KB (3 pages) Included with Bathymetry input file See Defendant's Response, Exhibit 6 at App0070-App0075. Dr. Nairn needs to complete the transfer of data to DVDs and send to undersigned counsel before it can be produced to plaintiffs. We anticipate receiving this information from Dr. Nairn by the close of January 19, 2007.

Lake level data

Sediment grain size

2.

Group B -4-

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The second group of information consists of data referenced within Dr. Nairn's tables listed above, most of which is available by accessing various internet websites. This information is either (1) raw data that was then re-formatted (it remained the same data but was in a significantly different structure) for input to the models as described for Group A, or (2) data that was used to calibrate or verify the various models but does not constitute input or output files for the models. A. USACE Monthly Lake Levels. This data is available at http://www.lre.usace.army.mil/_kd/go.cfm?destination=page&pge_id=1128. See Defendant's Response, Exhibit 6 at App0070, Table 1a at second row, fourth column. B. NDBC Buoy 45007 Wave and Wind Data. This data is available at http://www.ndbc.noaa.gov/station_page.php?station=45007. See Defendant's Response, Exhibit 6 at App0071, Table 1b at third row, fourth column. C. 1930 and 1948 bathymetry data sets.

See Defendant's Response, Exhibit 6 at App0072, Table 1c at second row, third column. D. Flow data for the following USGS gages (1991 to 1995): (1) (2) (3) (4) 04096900 04102500 04101800 04097500 (5) (6) (7) (8) 04097540 04101500 04099750 04100500.

This data is available at http://waterdata.usgs.gov/nwis. See Defendant's Response, Exhibit 6 at App0073, Table 1d at third row, fourth column.

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E.

Sediment Data for the following USGS gage (1979 to 1995): 04101500. This data is available at http://waterdata.usgs.gov/nwis/uv?04101500.

See Defendant's Response, Exhibit 6 at App0073, Table 1d at third row, fourth column. F. NOAA Precipitation Data for the following stations (1987 to 1995). (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12) (13) (14) (15) 12 0200 12 1739 12 3207 12 3418 12 4730 12 4782 12 4788 12 4918 12 5055 12 6416 12 7102 12 8187 12 9240 12 9271 20 0094 (16) (17) (18) (19) (20) (21) (22) (23) (24) (25) (26) (27) (28) (29) 20 0552 20 0710 20 0864 20 1122 20 1675 20 2250 20 2445 20 3504 20 3823 20 4244 20 5892 20 6020 20 7690 20 8184

This data is also available at http://dipper.nws.noaa.gov/hdsb/data/archived/legacy/dlytran.html. See Defendant's Response, Exhibit 6 at App0074, Table 1e at first row, fourth column.

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G.

NOAA Temperature Data for the following stations (1987 to 1995). (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) 12 0200 12 1739 12 3207 12 3418 12 4730 12 4782 12 7102 12 8187 12 9240 20 0552 20 0710 (12) (13) (14) (15) (16) (17) (18) (19) (20) (21) 20 0864 20 1675 20 2250 20 2445 20 3504 20 3823 20 4150 20 4244 20 7690 20 8184

This data is also available at http://dipper.nws.noaa.gov/hdsb/data/archived/legacy/dlytran.html. See Defendant's Response, Exhibit 6 at App0074, Table 1e at first row, fourth column. In order to produce the Group B information to plaintiffs, Dr. Nairn needs to complete the transfer of data to DVDs and send to undersigned counsel. We anticipate receiving this information from Dr. Nairn by the close of January 19, 2007. 3. Additional Documents Previously Disclosed but Not Provided Plaintiffs' motion to strike focuses on the computer modeling data used by Dr. Nairn. In responding to the Court's order, defendant includes a third group of information to make sure we are over inclusive, if anything, and to ensure no confusion. In exchanging Rule 26(a)(2)(B) expert disclosures, the parties had agreed to list the information considered by their experts in -7-

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forming their opinions in lieu of actually providing a copy. See Defendant's Response at 2. Dr. Nairn principally listed the information he considered in his report at Sections 5.1, References Cited (see Joint Record, Volume 1 of 4 at JR-0198 through 0201) and Section 5.2, References Considered (see Joint Record, Volume 1 of 4 at JR-0202 through 0213). For the most part, as explained in his declaration, Dr. Nairn did not list modeling data in Sections 5.1 and 5.2. Defendant's Response, Exhibit 6 at App0069-0070. This third group of information consists of copies of references listed in Sections 5.1 and 5.2. The list here does not replicate Sections 5.1 and 5.2 verbatim because it does not contain does entries which are computer modeling data (and which are addressed above) or items previously produced through discovery. Because of the length of this list, we have attached a copy of these items as Exhibit 1. The following tasks need to be done before these documents can be produced to plaintiffs: Dr. Nairn needs to order documents from this list that are not archived at his firm; copies of all documents are to be made and scanned to be converted into pdf files; the pdf copies will then be transferred to DVDs; and delivery of the DVDs to undersigned counsel. Dr. Nairn thinks the DVDs can be sent to undersigned counsel within three weeks. Dated: January 16, 2007 Respectfully submitted,

s/Terry M. Petrie TERRY M. PETRIE Environment and Natural Resources Division U.S. Department of Justice 1961 Stout Street, 8th Floor Denver, CO 80294 Tele: 303-844-1369 Fax: 303-844-1350 [email protected]

OF COUNSEL

HEIDE L. HERRMANN -8-

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Gary W. Segrest, Esq. Office of Counsel U.S. Army Corps of Engineers 477 Michigan Avenue, Room 659 Detroit, MI 48226

Environment and Natural Resources Division U.S. Department of Justice P.O. Box 663 Washington, D.C. 20044-0663 Telephone: 202-305-3315 Facsimile: 202-305-0274 [email protected] Attorneys for Defendant

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CERTIFICATE OF SERVICE I certify that I have served a copy of the "DEFENDANT'S RESPONSE TO ORDER FILED JANUARY 10, 2007" by electronic filing with the United States Court of Federal Claims on the 16th day of January, 2007 on: John Ehret, Esq. 20860 Greenwood Drive Olympia Fields, IL 60461 Counsel for Banks Plaintiffs **************** Drew Marrocco, Esq. Sonnenschein Nath & Rosenthal LLP 1301 K Street, NW Suite 600, East Tower Washington, DC 20005 Counsel for Stone Plaintiffs **************** Eugene J. Frett, Esq. Sperling & Slater, P.C. 55 West Monroe Street Suite 3200 Chicago, Illinois 60603 Counsel for Frett Plaintiffs ****************

s/Terry M. Petrie