Free Response to Supplemental Brief - District Court of Federal Claims - federal

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 1 of 92

Exhibit 100

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 2 of 92
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
- - - -

------

- X

3 RESOURCE INVESTMENTS, INC.,

4 and LAND RECOVERY, INC.,
"

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5 6

Plaintiffs,
v.
No. 98-429L

7 UNITED STATES OF AMERICA,

8 Defendant.
9

------

- - - -

- X

10

Washington, D.C.

-.
. "

11
12 13

Tuesday, June 8, 1999

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Deposition of COLONEL DONALD T. WYNN, a
witness herein, called for examirtation by counsel

14 for Plaintiffs in the above-entitled matter,

15 pursuant to notice, the witness being duly sworn
16 by DONNA McCALLEY, a Notary Public in and for the

17 District of Columbia, taken at the offices of

18 Heller, Ehrman, White & McAuliffe, 815
19 Connecticut Avenue, N.W., Washington, D.C., at

20 9:05 a.m., Tuesday June 8, 1999, and the
21 proceedings being taken down by Stenotype by

22 DONNA McCALLEY, and transcribed under her

23 direction.
24

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25

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~ DEFENDANT'S ~;)EXHIBIT

~ ERSON REPORTING COMPANY, INe.
(202)289.2260 18001 FOR DEPO

1111 14th ST" N,W" 4th FLOOR I WASHINGTON, D,C" 20005

DSJ 000847

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 3 of 92

.~.
2

1 2
3

APPEARANCES:

On behalf of the Plaintiffs:
DANIEL D. SYRDAL, ESQ.

4

5
6

JONATHAN M. PALMER, ESQ.

Heller, Ehrman, White & McAuliffe

7
8
9

6100 Columbia Center
701 Fifth Avenue

Seattle, Washington
(202) 447-0900

98104-7098

10 11

?i

12 13
1.4

On behalf of the Defendant:
ANN D. NAVARO, ESQ,

u. S. Department of Justice
Environment and Natural

15 16 17 18 19

Resources Division
Post Office Box 663

Washington, D. C.
(202) 305-0462

20044-0663

20 21
22
23

24
,

25
ALDERSON REPORTING COMPANY, INC.
12021289-2260 18001 FOR DEPO

t

1111 14th ST" N, W" 4th FLOOR f WASHINGTON, D,C" 20005

DSJ 000848

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 4 of 92

.~
1 2
3

237 there in the middle of the page that says: Dan
talks about the Sarasota County, Florida, just

got the county landfill okayed, project purpose
wasn't challenged?

4
5 6 7
8

A. Yeah, I see that.
Q. Still doesn't kick anything off?

A. I'm sorry, no, it doesn't.
Q. On page 1320, it has you indicating
that soon there' I I be some resources freed up as
the racetrack was the number-one priori ty and

9

10 11
12
"--'0\

that after that process, things might go faster,
I guess.

Do you recall that discussion?

), ~.

13 14

A.

I don't recall the discussion in the

meeting, but I remember that we had been working
especially in the environmental section very

15 16
17 18
i 9

intensely on the - - on the EISwith regards to
the racetrack.

And presumably that caused a

slippage in availability of resources to service
the EIS work, the landfill.

20 21
22
23 24

Q. So that could have been at least part
of the reason for the time slippage was that need

for those resources on another proj ect.

A. That's a possibility, yes.
Q. How did -- under your watch, how did
those prioritization decisions get made?
ALDERSON REPORTI:\G CO:\IPANY, INC.
12021289-226018001 FOR DEPO

25
,

1111 14th ST" N,W" 4th FLOOR f WASHINGTON, D,C" 20005

DSJ 000849

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 5 of 92

-2 3 8

1

A. That's an interesting question.
Q. Thank you.
A. Generally I had a monthly meeting with
my chief of regulatory and he would go over all the permits that -- permit actions that were
available, and at that particular point in time,

2
3

4 5 6 7
8 9
i 0

if one permit or another needed more resources or

attention and there was a conflict between
resources availability, we would talk about it,

and I would make a call which one was more

11

important.

Generally, as I recall, that didn't

.-:1

12 13 14 15 16

have to happen, but the environmental section only had a limited number of people that could
review an EIS and write EISs, and so if we had a
couple major EISs going through at the same time,

you would have to make a decision as to which one
was more important at that particular point.
Q.

17
18 19 20

Okay.

And did you make that decision
come i

21
22

serve or which one affected more people or which one the staff liked better or how did you do t ha t?
A.
Q.

based on

first
Yes.

first

23 24 25
'i

A.

All of the above? All of the above.

I

I

cannot

remember if there was -- no, I do remember there
ALDERSON REPORTL'iG CO\IPANY, INC.
12021289-2260 18001 FOR DEPO

."

1111 14th ST., NW" 4th FLOOR I WASHINGTON, D,C" 20005

DSJ 000850

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 6 of 92

,~
1
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239
wasn't an explicit criteria.
It was in my

judgment what is the most critical at this
particular point to apply resources to,
Q.

4
5

So why

do you recall why you decided

it was more critical to apply resources to a

6
7
8

racetrack EIS than a solid waste EIS for Pierce

County?
A. I'm not sure I remember the sequenc ing
I want to say I think the summer before I arrived,

9

of it,

The racetrack EIS was kicked off

10 11
...-)

but I'm not positive of that.
that was

And I know that

12
13 14

had the same level of scrutiny that
But when I got in, the

the landfill did.

poli tical process and the man process was

15
16

scrutinizing the racetrack very intensely at that
particular point, so that received priority.

17
18

Q. So it was primarily the fact that the
political process was more hot and burning for
the racetrack than it was for LRI?

19 20 21 22
23 24

A. I'm not sure that was the only factor.
I think also what information was coming available, what we could do with that

information, how we could incorporate it, you

know, where - - where could we move the process

25
_.

along fastest by put t ing resources into it.
ALDERSO:' REPORTI:\G CO:\IPANY, INC.
12021289-226018001 FOR DEPO

It

1111 14th ST., NW" 4th FLOOR I WASHINGTON, D,C" 20005

DSJ 000851

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 7 of 92

'-,
240
1 2
3

was a very subjective judgment.

Q. In this, on page 1320, it says -- at
least I indicated the original schedule called
for a one-month turnaround after we submitted the
.,-"

4 5 6 7
8

preliminary draft EIS.

See that?

It says Dan

there.
A. Yes.
Q. And do you recall how long that
turnaround actually was?

9

10

A. No, I don't.
Q. If I ask you to assume that it -- the
preliminary draft EIS was submitted in November of 1994, it would have been substantially longer
than a month, wouldn't it?

11

-:'

12
13

L

14 15
16 17 18 19
2b

A. Yes, as I recall, it was.
Q. And that could be as a result of this
resource conflict with the racetrack.

A. Yes.
Q. Do you recall when the racetrack
applied for its permit -- made its permit

21 22
23

application?

A. No, I don't.
Q. Would it be -- do you recall that it
was substantially later than LRI did?

24 25

A. I would presume it was.
ALDERSON REPORTI:\G COMPANY, INC.
(202)289-2260 (8001 FOR DEPO

1111 14th ST., NW., 4th FLOOR I WASHINGTON, D,C" 20005

DSJ 000852

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 8 of 92

~.
1 2
3

241

Q. Do you believe that that should have
any bearing as to which application gets

resources?
A.
"

4

I believe it has a bearing on it.

I'm

5
6

not sure it's the only factor.
Q.

Right.

How about the factor of which
Is that

7
8 9

proj ect would affect more people?

something that should be also considered?

A. Yes, it is.
Q. And that I take it would also point in
the direction of LRI as opposed to the

10

11 12
,=-",

racetrack?
A. Conceivably.

)'

13
14

Q. Does it also make a difference that one
of the projects was for a stated, according to the Corps, a public purpose, to supply a needed service to a full county as opposed to another

15 16 17 18

proj ect' s purpose of supplying recreational time
to the folks?

19
20

A. That would also have an impact.

21
22 23 24

Q. And given those kind of factors, is the
only countervailing one that was used to give the
resources first to the racetrack this political
pressure one?

25

A. I don't remember the exact details of
ALDERSON REPORTING cO:\IPAN, INC.
12021289-2260 18001 FOR DEPO 1111 14th ST" N,W" 4th FLOOR I WASHINGTON, D,C" 20005

DSJ 000853

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 9 of 92

,~
1 2 3 4 5
6

242 it, but a scenario that might have happened is
that the EIS for the racetrack came in before the

EIS for the landfill, in which case that would

have been on a first-come, first-serve basis. We
got the EIS to review and we did the EIS review
for the racetrack and then the one for the

7
8 9

landfill.
Q.

Okay.

But you don't know if that was

the case or not.
A. I do not know if that was the case or

10 11 12
/1""..

not.
Q. If that were the case but it were
caused by the fact that the Corps didn't decide

)..

13

14 15
16

to do an EIS for three and a half years, would
that affect that judgment?
I mean, an applicant

can't very well do an EIS until the Corps

17 18 19

suggests they want it?
A.

Yes.

I'm not sure what question you're

asking me.

20
21 22
23

Q. Well, if a factor is that relative
in should that factor be somewhat offset by the relative timing of when the Corps decided to do an EIS?
came

timing of when the EISs

24
25
.'

A. Well, that's a possibility, but then
there's also the possibility you never know when
ALDERSON REPORTING CO\IPANY, INC.
12021289-2260 18001 FOR DEPO

1111 14th ST" N,W., 4th FLOOR I WASHINGTON, D,C" 20005

DSJ 000854

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 10 of 92

-1 2
3

243
your EIS is going to be finished because it's a
fairly involved process.

So if you put your team

working on one EIS, it's extremely inefficient to
take them off that EIS, put them on another EIS

4
5 6 7 8 9

that comes in and then take them off -- when you

have that finished up then put them back on the
original one because of the - - of the knowledge

basis and coming up to speed. Again we're
speculating here

10 11
.~...
)..

Q. Right.
A.
- - what the real facts were.

But I

12
13

would say that from an efficiency standpoint
trying to use limited resources, again we're
speculating, I would have said okay, if we're

14 15 16 17
18

already working on this EIS, we're just going to continue to finish that and then we'll get on
this next one.

Q. Okay, now you had worked closely with
Mr. Mueller on these kind of decisions, I take

19 20

it?
A. Yes.
Q. Did he make a recommendation to you?
Was that his normal practice as to which, how you
should allocate those resources?

21
22 23 24 25
0'-

A. We basically, as I recall it, we would
ALDERSON REPORTING COMPANY, INC.
12021289-2260 18001 FOR DEPO

1111 14th ST" NW., 4th FLOOR I WASHINGTON, D.C" 20005

DSJ 000855

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 11 of 92

Exhibit 101

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 12 of 92

l~~..-,..r,.

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

RESOURCE INVESTMENTS, INC., and LAND RECOVERY, INC.,

) ) )
)

Plaintiffs,
v.
UNITED STATES OF AMERICA,

) ) ) ) ) ) ) r

No. 98-429L

Defendant.

~(Q ic)1

DEPOSITION UPON ORAL EXAMINATION OF JAMES DAVID GREEN
VOLUME I

'1\...,1
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.

Thursday, June l7, 1999
9:00 a.m.

701 Fifth Avenue, Suite 6100
Seattle, Washington

Reported by Mar1is J. DeJongh, CCR, RPR

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;; DEFENDANT'S

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MARLIS J. DeJONGH & ASSOCIATES 1218 THIRD AVENUE, SUITE 1122, SEATTLE, WA gR101

206-583-8711 DSJ 000856

Case 1:98-cv-00419-LB Document 184-3 Filed 12/22/2006 Page 13 of 92 DEPOSITION OF JAMES D. GREEN, VOLUME I; 6/17/99
2

1

APPEARANCES
For the Plaintiffs:
DANIEL D. SYRDAL, Esq. and JONATHAN M. PALMER, Esq. HELLER EHRMAN WHITE & McAULIFFE 701 Fifth Avenue, Suite 6100 Seattle, Washington 98104-7098

2

3
4

5
6 7

For the Defendant:
8 9

ANN D. NAVARO, Esq. U. S. DEPARTMENT OF JUSTICE P.O. Box 663 Washington, D.C. 20044-0663

10 11 12

and
SIRI NELSON, Esq. U. S. ARMY CORPS OF ENGINEERS P.O. Box 37551 Seattle, Washington 98124-3755

)

13
14

Court Reporter:

MARLIS J. DeJONGH, CCR, RPR 1218 Third Avenue, Suite 1122 Seattle, Washington 98101

15

16
17
18

Also Present:

AARON SCHUTT

19

20

21
22 23
24

25
)

,/

MARLIS J. DeJONGH & ASSOCIATES 1218 THIRD AVENUE, SUITE 1122, SEATTLE, Wl An..,,,,

206-583-8711

DSJ 000857

Case 1:98-cv-00419-LB Document 184-3 Filed 12/22/2006 Page 14 of 92 DEPOSITION OF JAMES D. GREEN, VOLUME I; 6/17/99

168
1 2

question.

If you had to look at it from the

applicant's perspective, RRI' s perspective rather

3
4

than the basic purpose of somehow getting some waste

taken care of, RRI wouldn't get any money out of it

-."'._r'

,

5 6 7 8

if somebody else hauled Pierce County waste over to
Klickitat County and put it in Rabanco's landfill,

would they?
A.
That's where we may be going around in circles.

9

That's why we tried to determine the, the county's

10

role in this, and the Supreme Court has ruled, and

11
12 13
14

we agreed with them in this, that this is a county
responsibility, and we decided that the purpose, at

least as the Corps saw it, could be achieved through
long

haul.

15 16
17 18

Q.

But it couldn't be achieved by RRI in a practicable
way from RRI' s perspective, could it?

A.

I can't necessarily agree with that.

I don't know

what, whether you i re able to compete with them or

19

not.
Q.

20
21 22

Is it fair to say that the Corps determined that in fact the Rabanco longhau1 alternative, that existing
landfill was a practicable alternative?
i ;. '_~' -':' _~~"J-

23
24

A. Q.

Yes.
Do you believe that RRI had any ability to purchase,

F~~l~~

25

manage, or otherwise control the Rabanco landfill in

MARLIS J. DeJONGH & ASSOCIATES 1218 THIRD AVENUE, SUITE 1122, SEATTLE, WA 98J~"

206-583-8711

DSJ 000858

Case 1:98-cv-00419-LB Document 184-3 Filed 12/22/2006 Page 15 of 92 DEPOSITION OF JAMES D. GREEN, VOLUME I; 6/17/99

169
1 2 3
4

Klickitat County?

A. No.
Q. Then how would RRI get any revenue or achieve any
private economic goals through that alternative, the

5
6 7 8 9

Rabanco al terna ti ve?

A. We were looking at this from the perspective of the
county in terms of practicable costs, not from the
perspecti ve of RRI.

Q. Now, and I think we have finally gotten to that
issue. And how is looking at this from the
perspective of the county as opposed from the perspective of the applicant consistent with this
guidance that we have just read from John Studt

10 11

( ~
'-..-./

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12

13
14

which says it has to be from the applicant's
perspective and practicable

15 16
17

and available to the

applicant, and from the directive we have seen from
Maj or Hatch

which says it has to be practicable and

18

available to the applicant, and the purpose and need
have to be the applicant's purpose and need?

19 20 21
22

MS. NAVARO: I obj ect to that. I think he
testified there was subsequent guidance.

A. These are -- this is a fairly unique circumstance.
It's very similar to a state highway department who

23
24

wants to build a highway but they require their

25
')

contractors to build, to get the permits. Clearly

MARLIS J. DeJONGH & ASSOCIATES 1218 THIRD AVENUE, SUITE 1122, SEATTLE, WL

1"1"1"""'

206-583-8711

DSJ 000859

Case 1:98-cv-00419-LB Document 184-3 Filed 12/22/2006 Page 16 of 92 DEPOSITION OF JAMES D. GREEN, VOLUME I; 6/17/99

170
1 2 3
4

al terna ti ves aren't available to the contractor,
just as they are not in your case as a contractor.

But we still have to look at alternatives that are
available to the state highway department.
In this

5
6 7
8

case we're looking at it similarly to the county.
RRI is a contractor.
Q.
(By Mr. Syrdal)

So let me ask you this.

If I ask

you to assume that in fact the county doesn't

9

control the waste and that RRI and/or LRI will be

10
11
12

handling this waste independent of any contract with
the county, doesn't that put the kibosh on that

analysis because it doesn't require any contractor

,'...'. ')

13
14

relationship.
A. Well, I just go back to the State Supreme Court
saying this is a public project and the ultimate

15

16
17
18

responsibili ty of disposing of solid waste is the county's. I f they chose to go through contract,
they can, and that's the position we took. I
recognize we don't agree on that.

19

20 21 22 23
24

Q. Now, I understand your position on the Supreme Court

decision.

It was, however, was it not, saying that

it was a public project for purposes of determining whether alternatives had to be evaluated under SEPA?
Is that right?

25

A. That was part of it.
MARLIS J. DeJONGH & ASSOCIATES

,
,

)

1218 THIRD AVENUE, SUITE 1122, SEATTLE,

206-583-8711

WA 0.011"1

DSJ 00859A

Case 1:98-cv-00419-LB Document 184-3 Filed 12/22/2006 Page 17 of 92 DEPOSITION OF JAMES D. GREEN, VOLUME I; 6/17/99

171
1 2

Q.

It never said, did it, that the county in fact

controlled the waste and could do with it what it

3
4

will?
A.
It says it was the county's responsibility, I

5
6 7

believe.
Q. A.

To plan for and what to do with the waste, right?

Yes.
And

8 Q.
9

10

in fact did the Corps ever review RCW 70.95, the Solid Waste Act of the State of Washington that the Court was talking about in that case?
Do you recall reviewing the provisions that LRI

11
12

A.
Q.

We may have. I don't recall.

f)
'-". .' 'Y', '

13
14

cited to the Corps that say the county is legally

prohibited under state law from collecting waste in
the unincorporated areas?

15

16
17

A.
Q.

No, I don't.

Wouldn't that be an important factor if the county
is legally prohibited from even collecting or
dealing with this waste?

18

19 20 21 22
Q.

A.

It would seem inconsistent with the Supreme Court
ruling to me.

And in fact wouldn't it cause you to question, if
you knew that fact and considered it, wouldn't it cause you to question the Corps' interpretation of

23
24

25

tha t Supreme Court ruling?

)
MARLIS J. DeJONGH & ASSOCIATES

1218 THIRD AVENUE, SUITE 1122, SEATTLE, WA 9Rl ni

206-583-8711 DSJ 000860

Case 1:98-cv-00419-LB Document 184-3 Filed 12/22/2006 Page 18 of 92 DEPOSITION OF JAMES D. GREEN, VOLUME I; 6/17/99

172
1

MS. NAVARO: Object to that as calling for
a legal conclusion and making a variety of

2 3
4

assumptions that have not been established. If
you're asking for his personal opinion, fine.

5 6
7 8

A. I don't know.

Q. (By Mr. Syrdal) Well, you just told me, did you
not, that your decision was based on the fact the

Supreme Court put the responsibility on the county
for handling waste.

9

10 11
12
""--~, .

A. We were headed that direction long before the
Supreme Court ruling. They just reinforced the
direction we were moving.

")

13 14

Q. I want you to assume the state law says the county
cannot collect waste in the unincorporated areas,

15 16
17 18

okay. Under that assumption, would your view of
that issue have changed?

A. It may have.
Q. So if that assumption proves true, could your
treatment of this practicable alternatives issue be
in error?

19 20 21 22

A. I don't know.
Q. Now, do you know John Studt?

23
24

A. Yes.
Q. And does he have anything to do with Corps policy?

25

A. He's the chief of the regulatory branch. Certainly
MARLIS J. DeJONGH & ASSOCIATES

\
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1218 THIRD AVENUE, SUITE 1122, SEAT7'T.R WII aR101

206-583-8711 DSJ 000861

Case 1:98-cv-00419-LB Document 184-3 Filed 12/22/2006 Page 19 of 92 DEPOSITION OF JAMES D. GREEN, VOLUME I; 6/17/99

173
1 2 3
4

he does.

Q. So he should be fairly familiar with policy and
things like this memorandum we just went over that

he drafted?
A. Yes.

5
6
7 8

Q. Now if it was his testimony -- let me back up.
You indicated that you gave Ms. McNeill several
references to, I never know how to say, Hatch Watch,

9

headquarters, decision documents on elevation cases,

10 11
12
,

right?
A. Yes.
Q. One of the ones you relied on was Old Cutler Bay,

13
14

....)

wasn't it?
A. I believe so.
Q. And do you know whether or not Mr. Studt had
anything to do with Old Cutler Bay and that decision

15 16
17
18

documen t ?

A. No.
Q. If Mr. Studt testified that based on Old Cutler Bay

19

20
21 22

that a proj ect had to be economically viable to the
applicant, the particular applicant, would that be
inconsistent with your view of that decision?

23
24 25

MS. NAVARO: Object to this question.
Your characterization of Mr. Studt's testimony is not supported by any records before him and

)
MARLIS J. DeJONGH & ASSOCIATES 1218 THIRD AVENUE, SUITE 1122, SEATTLE, WA 98101

206-583-8711

DSJ 000862

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 20 of 92

Exhibit 1 02

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 21 of 92

i;'.--l , j,

IN THE UNITED STATES COURT OF FEDERA CLAIMS

RESOURCE INVSTMENTS, INC. , and LA RECOVERY, INC. ,

) ) )

Plaintiffs,
v.
UNITED STATES OF AMRICA,

) )
) ) ) ) )

No. 98-4291

Defendants.

~(Q~W

DEPOSITION UPON ORA EXAINATION OF
AN ROBERTA UHRICH
Monday, September 20, 1999
8:35 a.m.

'0)/

;

Heller Ehrman White & McAuliffe
701 Fifth Avenue
Suite 6100

Seattle, Washington

Laurie E. Heckel, CSR, RPR Court Reporter CSR License No. HE-CK-EL-E386DM
~ DEFENDANT'S
~ $T EXHIBIT
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Marlis DeJongh & Associates (206) 583-8711

DSJ 000863

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 22 of 92
2

APPEARCES
.--~,

1
2 3

Monday, September 20, 1999 Seat tIe, Washington

APPEARANCES
For the Plaintiffs:

4 5
6

JONATHA M. PALMER, Esq. HELLER EHRM WHITE & McAULIFFE
701 Fifth Avenue Suite 6100

Seattle, Washington 98104-7098

(206) 447-0900 '

7
8

For the Defendants:

LORI CARIAN, Esq.
U. S DEPARTMENT OF JUSTICE P. O. Box 663 Washington, D.C. 20044-0663 (202) 305-0436

9

10 11 12 13 14 15 16

For the Defendants:

S IRI NELSON, Esq.
U. S. AR CORPS OF ENGINEERS
P. O. Box 3755 Seattle, Washington 98124-3755
(206) 764-6834

17
18 19 20

21 22 23 24 25

j
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DSJ 000864

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 23 of 92
32

AN ROBERTA UHRICH - By Mr. Palmer

(

1 2
3

A
Q

Uh-huh.
Do you recall how you ultimately resolved that

question?
A

4
5 6

I do not. That would have been left up to Jim, I
think, at that point.

Q

You mentioned that it took awhile or it took some time
to resolve the alternatives evaluation.

7
8

A
Q

Uh-huh.
And you mentioned one issue is you believe the Corps
requested information, and it took time to -- to get

9

10

11
12

that information back from the applicant. Are there
other issues with respect' to the alternatives analysis

13

that you think contributed to the length of time that
it took to evaluate the alternatives?
A

\

14 15

I would say just the general complexity of the case,

16
17

the fact that the district engineer determined that an
EIS was needed, and it takes time to do an

18
19
Q

environmental impact statement.
Do you remember anything about the decision to do an

20 21 22
23
A
Q

EIS?
I don't really.

What about - - what, if anything, do you recall about

the general complexity of the case that would have led
to difficulty in doing the alternatives evaluation?
A

24

25
"

Well, an alternatives evaluation is predicated on what

)

Marlis DeJongh & Associates (206) 583-8711

DSJ 000865

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Document 184-3

Filed 12/22/2006

Page 24 of 92

AN ROBERTA UHICH - By Mr. Palmer

33

\

1
2 3

is called the basic proj ect purpose. And I remember

that Jim had difficulty, and the section had

difficulty in getting RII, I guess, to concur with our
stated project purpose.
Q

4
5 6 7
8 9

Anything else you recall about that issue?

A
Q

About which issue? I'm sorry.

Fair enough. About the issue of what was it about the
general complexity of the case that led to
difficulties in completing the alternatives

10

evaluation.
A

11
12 13
\ ,

I don't think I can think of anything other than what

you've stated.
Q

Okay. You had general oversight, a general oversight
function with respect to the project managers --

14
15 16
A
Q

Uh-huh.

- - in particular; is that right?
Uh-huh, uh-huh.
And also other staff that might have been working on
the permit?

17 18 19 20

A
Q

A

Yes, we had at that time another staff person called

21
22
23
Q

an environmental analyst.
Who was that?
A

It would have varied. Which point in time are you
asking about?

24

25

Q

If you can think of more than one environmental

'--.0'.;

.

Marlis DeJongh & Associates (206) 583-8711

DSJ 000866

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Document 184-3

Filed 12/22/2006

Page 25 of 92

AN ROBERTA UHRICH - By Mr. Palmer

51

1
2 3 4 5
6

Q

Yeah. Could you just read it.

A
Q

Okay. Okay.
There are actually two letters stapled together in

this exhibit. One of them is a January 2nd, 1991
letter from Polly Lord and Jamie Hartley. The other
is a November 15, 1990 letter from Leslie Nellermoe to

7 8
9

Pat Cagney. Look at Exhibit 91

MS. CAIAN: And feel free to take your time
and review the whole document.

10

THE WITNSS: Yeah. I'm going to read the older

11
12
13
)

first.
(Witness reviewing document.)
Q

(By Mr. Palmer) Have you had a chance to review that?
Yes, I have.

14 15 16 17 18

A
Q

Let's start with the earlier letter first which is the

November 15th, 1990 letter to Mr. Cagney. This letter
encloses the final environmental impact statement from
the - - or the draft environmental impact statement

19
20

that was completed under the State Environmental

Protection Act.
A
Q

21
22 23 24 25

Okay.
Is it typical in a project of this size for a state

environmental impact statement to be done in addition
to a federal environmental impact statement?

MS. CARIAN: Object, calls for speculation.

Marlis DeJongh & Associates (206) 583-8711

DSJ 000867

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Document 184-3

Filed 12/22/2006

Page 26 of 92
52

AN ROBERTA UHRICH - By Mr. Palmer
I

,

1
2 3

THE WITNESS: ,Yeah. I was going to say it's
I don't know the answer to that. I would have to

speculate.
MR. PALER: Okay.
THE WITNESS: And I don't know.

4
5 6

Q (By Mr. Palmer) Is it helpful to the Corps to review a
state SEPA environmental impact statement as part of

7
8 9

the application materials in learning about the

proj ect?

10

A That would depend on the adequacy and accuracy of the
state EIS. We've had some that are very helpful.
We've had others that are not helpful at all.

11
12 13 14

Q Do you recall receiving the state environmental impact
statement in this case, in this project?

15 16

A I don't recall receiving it myself personally or
seeing it.

17 18
19

20 21 22
23 24

Q When I say, you, do you recall the Corps receiving it? A No. Q Do you recall your staff reviewing it? A I would not have been that involved at the - - that's a
detail and oversight over either Cagney or Mowrey that I wouldn't have done. I wouldn't have been moni toring
them to see if they were reading something like this.
So I don't know.

25

Q Do you as a matter of practice, if a letter like this

Marlis DeJongh & Associates (206) 583-8711

DSJ 000868

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 27 of 92
53

AN ROBERTA UHRICH - By Mr. Palmer

I

\

1

November 15, 1990 letter were to come in addressed to
a project manager, would that be routed to you?
A

2
3

In those days, it would have been routed through

4
5

generally speaking, it would have been routed through
the chief's in-box, the section chief's in-box.
Q

6
7 8 9

So it would have been - - I'm sorry.
But not always.

A
Q

And is there --

A

So I don't recall seeing this one. I do vaguely
remember this letter.

10 11 12
13
"

I don't recall this one.

Q

And by, this, you're saying the one you recall?

A

I'm sorry. The one I'm referring to I don't recall
seeing, the one dated November 15, 1990.
I do vaguely

14

remember seeing the January 2nd letter, but not this
one, not the November one.
Q

15 16 17 18
19
A

Is there -- what I'm trying to get at is it standard

procedure to route correspondence through the section
chief's office or through your desk?
That would have been standard procedure at that time,
but it was not necessarily always followed.
Q

20

21
22 23

A
Q

Okay. Has the standard procedure changed -Not -over time?

24 25

A

It has, I believe. I don't know what it is now
because I've been away for whatever, over a year. I

'"

Marlis DeJongh & Associates (206) 583-8711

DSJ 000869

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 28 of 92
54

AN ROBERTA UHICH - By Mr. Palmer

1
2 3
Q

don't honestly know what it is now. There have been
changes over time, yes.

You i II see that this November 15th letter also
Ms. Nellermoe makes reference to the fact that the
review of this proj ect is on a tight schedule. And

4
5 6

I i II quote directly. She says, As you know, a review

7
8

of this proj ect is on a tight schedule. In order to
maintain the schedule the FEIS must be mailed by the
Planning Department on November 27th.

9

10 11 12
13
A
Q

Do you recall early on that the applicant wanted
to get this project application processed as
expeditiously as possible?

I don i t recall that, no.
Let i s look at the January 2nd, 1991 letter.
Uh-huh.
And it references in the second paragraph that on
November 19th, 1990, Pat Cagney conducted a site
visitation and he approved the proposed wetlands
delineations with the possible exception of

14

15
16

A
Q

17
18

19 20

approximately 1.3 acres in the middle of a wet pasture
area in the northeast area of the parcel.

21
22 23

My first question is, Mr. Cagney visited the site

November 19th, 1990. The application was submitted in

24
25

August of 1990. Is that a typical span of time
between submission of the application and site visit

Marlis DeJongh & Associates (206) 583-8711

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Document 184-3

Filed 12/22/2006

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AN ROBERTA UHICH, - By Mr. Palmer

55

I '.

1
2 3

delineation in your opinion?
A
Q

At that point in time, it was typical.

We had -.

Okay.

4
5 6

A
Q

- - high workload.
And why did you have high workload at that point in
time, if you recall?

7
8

A
Q

I don't recall. I just know it was high.
And you'll notice that in this letter, Ms. Lord, who
later became Ms. McNeill states that, quote, We are

9

10

willing to acquiesce the Corps' expertise and will
include the new 1.3 acres as part of the wetlands on

11
12 13
\,
')

this site.
A
Q

Uh-huh.
So Ms. Lord accepted Mr. Cagney's delineation; is that

14 15

correct?

16
17 18 19 20
Q

MS. CAIAN: Obj ect, calls for speculation.
THE WITNESS: I don't know. I mean, I think her
words are plain.

(By Mr. Palmer) Let me rephrase my question. Is there
anything additional that the applicant would need to
do after this point in terms of reaching a wetlands

21
22 23 24
A
Q

delineation determination -Okay.
if you accept what this letter says as true?

25

MS. CAIAN: Obj ect, that calls for

'- '
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DSJ 000871

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AN ROBERTA UHICH - By Mr. Palmer

56

1,

1
2 3

speculation as well.

THE WITNSS: Yeah. I don't know because, see,
I'm not sure - - other than this map, I don't know what

4
5 6

would have come with it. Generally, they mark up maps
in the field, and whether this map sufficed for

Mr. Cagney or not, I don't know. The fact that she
agrees with his call doesn't mean it still isn't the
burden of the applicant to send the final revised map.
Q

7
8 9

(By Mr. Palmer) So what would need to happen after the

10

applicant and the Corps reached general agreement on
the delineation is the applicant must send the final
revised map; is that right?
A
Q

11
12 13

That's correct.
And then you have a formal delineation. Is that how
it works?

,

)

14

15
16
A

The closure point would be the Corps writing a memo

17
18 19 20

for record that states what the status is. In other
words, that we received information on such and such a date" that a site visit was conducted on such and such
a date so that that's a matter of record, and then any

21 22
23

resolutions that occurred. And then the maps are
attached and any data sheets are attached. And that
then becomes a matter of record.
Q

24 25

Okay.
I would call that the -- the legal -- the legal

A

Marlis DeJongh & Associates (206) 583-8711

DSJ 000872

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 31 of 92
73

AN ROBERTA UHRICH - By Mr. Palmer

\

.

1 2
3

out in March of 1992, do you have any recollection at all of concerns on behalf of the applicant that the
application was not being processed expeditiously?

4
5 6

MS. CAIAN: Obj ect as vague.
THE WITNSS: Let me ask you this: As expressed
by letters or phone calls or other communication to

7 8
9

the district?
MR. PALMER: I'll take whatever. Any
recollection at all.

10

THE WITNESS: I don't. I don't. In other
words, it is often typical that applicants will call
the section chief repeatedly if they feel we're not

11
12
13 14 15 16

being timely. And I honestly don't recall one way or
the other whether that occurred in this case or not.
I just -- I don't know.

Q (By Mr. Palmer) You don i t recall any telephone calls
from Polly Lord, Polly McNeill?

17 18 19 20 21 22
23

A I remember getting phone calls from her periodically.
What the periodicity was, I don't know, to use your
term, how frequent that was.

Q Sorry for that horribly A Yeah, but I don't recall them being very frequent. I
don 't. It does not stand out in my mind that I was
being beat up by the agent, which occurs sometimes.

24 25

Q Do you have any recollection of conversations with

Marlis DeJongh & Associates (206) 583-8711

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74

1 2
3

your proj ect managers, Mr. Cagney or Mr. Mowrey, in
which you encouraged them to move the process along?
A

I do not have recollection of discussions like that.

4 5
6
Q

I mean, I deferred, as was appropriate, an awful lot
to the people doing the work.

That time frame from August, 1990 to March, 92, does
that strike you as a - - in any way an unusually long

7
8 9

period of time before public notice would be issued in
a project like this?
A
Q

10

Not necessarily, no, it doesn't.
So that would not --

11
12
13

A
Q

Yeah.
I'm sorry. Go ahead and answer the quest ion.

14

A

Well, going where you're going, yeah, that in and of
itself wouldn't -- the time alone would not be an
indicator that something was taking too long, no, no.

15
16

17
18 19

Q

Just have you take a look at a document that's been
marked already as Exhibit 57.
(Witness reviewing document.)

20

Q

Have you had a chance to look at those?

21
22 23

A

Yeah. Let me finish Page 2 here. MS. CAIAN: Take your time and ,read the
whole document.

24 25

THE WITNSS: Yeah, I'm doing that.
(Witness reviewing document.)

Marlis DeJongh & Associates (206) 583-8711
DSJ 000874

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Document 184-3

Filed 12/22/2006

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AN ROBERTA UHICH - By Mr. Palmer

75

(
\

1
2 3
Q

THE WITNSS: Okay.
(By Mr. Palmer) Exhibit 57 is a set of handwritten

notes with an attached cost summary. Are those your
handwritten notes?
A
Q

4 5
6 7 8 9

This looks like my handwriting, yes, it does.
These notes are dated 13, July, 1992.

A
Q

Uh-huh.
And I think that says Coordination Meeting - RRI at
the top.

10

A
Q

Yes.
Is that right?
Yes, uh-huh.

11
12
13
\.

A
Q

Do you have any recollection of this meeting?
Oh, some recollection.
If you look at --

14 15

A
Q

16 17
18

A

Can I ask or, I mean, can I ask -- I don't know. If
this was held at the county, then I think I know which
this meeting was, but

19 20

Q

Your guess is as good as mine. I would tell you if I

knew.
A
Q

21
22
23 24

I'll do my best. Okay.
What recollection, if any, do you have of this

meeting?
A

Okay. I am speculating. I think this is notes - - I
think these are notes from a meeting with the county.

25

.

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104

I \

1
2 3 4 5 6

A

I was not personally aware the project was per se

serving a public need, other than Pierce County was

somehow involved. If you're asking about the period
of time when it went to notice, can you rephrase what you mean about what I understood when it went to

notice?
Q

7
8 9

Well, the question was, the reason for this
inquiry is - - my understanding of the reason for this

inquiry is that you and other people that were

10

invol ved in this proj ect with the Corps understood or
believed that this project was serving a public need,

11
12 13
\

and therefore, you wanted to get to the bottom of the
identity of the applicant and who the applicant was
representing; is that fair?
A

\

I

14

15 16

I think that 1 s fair. And my vague recollection,

because this is not crystal clear, is that the
questions in that regard came up subsequent to the notice, that they were not elucidated prior to the
to going to notice, and I don't know why.
Q

17
18

19

20 21
22 23 24 25

So you don i t believe that you understood that this

project would serve a public need prior to going to

notice?
A

I do not believe there was confusion on that point
prior to notice.

,Q

Do you recall what created the confusion between the

\.

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AN ROBERTA UHRICH - By Mr. Palmer

105

1
2
3

time of public notice and the time of this letter?

A There were several things, and I don't recall them in
their specificity, but I do know there was several

4
5 6

things.

Q Now, the project purpose is the second basic criterion
that that the colonel asks for clarification on. And
in particular, Colonel Cunningham redefines or

7
8 9

proposes a retool of the definition of the basic

project purpose and the overall project purpose than
that that was laid out in the public notice; is that

10 11
12 13
/
ì

right?

A Right, right.
Q

Now, I i m going to ask you the same question.

14 15 16

Isn't it - - isn i t it unusual to - - isn't it unusual to

change the project purpose after a project has already
gone out to public notice?

17
18

A It would not have been at that time. We were in the
process of better understanding the elevation
guidance, and if in fact any RGL' s came out on the

19 20

issue of project purpose, and when the public notice

21
22 23 24 25

came out, even then, we -- our protocol at that time

to say, here's the purpose per applicant. That's why the little, per applicant, is in parens because it's -- it's not the Corps, the
in the district was

,

government, making an assertion that this is the

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Filed 12/22/2006

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AN ROBERTA UHICH - By Mr. Palmer

106

(

1
2 3 4 5 6 7 8

purpose. It is the applicant i s assertion as to

purpose.
So in this period of time where we were better
understanding our own headquarters policy on the

matter, it would not have been unusual to have had a
different project purpose for the 404 (b) (1) evaluation

than was put on the public notice. And I do not know
what the current status is because I haven i t done

9

notices since I left in 97.
Q

10

So it's not unusual - - it would not have been unusual

11
12

at that time to institute a new project purpose for
the one that was already included in the public

"

'/\

13 14 15 16
A

notice?
That i S correct. There would have been others that
would have occurred on, and I can't give you

examples. It might have occurred on the Weyerhaeuser
one. I think it's quite possible that it did, that we
crafted our own for that one.
Q

17
18

19 20

And the reason for that is that there was new Corps guidance or elevation papers that came out in the time
period between public notice and the date of this
letter that changed the Corps

21
22 23

that changed your

understanding at the district as to what -- as to what
that project purpose should be?

24 25
,
,

MS. CAIAN: Obj ect, vague, confusing.

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107

/

1
2
3

THE WITNESS: No - - yeah, that, I cannot tell

you. Again, because I was not in charge of the
day-to-day management of the proj ect. I am not sure
at what point we began to ask the project purpose question, whether it was before this or if this was

4
5 6

the first time. I'm just saying it is not illegal.
It is not improper for the Corps to state it
differently than is stated in the public notice.
That's okay.

7 8
9

10 11 12
"ì

Q (By Mr. Palmer) If the Corps had undertaken to define
the project purpose according to its understanding

before public notice went out, that would have saved
quite a bit of time, wouldn't it have?

13

14

MS. CAIAN: Object, calls for speculation.
THE WITNESS: I don't know. Truly, I don 't

15 16

know. Even without her objection, I don't know. I

17
18

don't.

Q (By Mr. Palmer) The public notice in this case was
issued in March of 1992, went out, received comments,

19
20

and then in December of 1992, the colonel proposed

21
22
23

here to change the proj ect purpose. Now, if I asked
you to assume that -- that the project purpose issue

was resolved before public notice went out, that you
can't tell me whether that would have saved time or

24

25

not?

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108

1
2 3

MS. CAIAN: Obj ect, asked and answered.
THE WITNESS: Yeah, I can't.
It is typical to
begin the 404 (b) (1) evaluation after the public

4 5
6

comment has come in, after the comment period is

over.

I vaguely seem to recall that this went more

than a 30 -day comment period so that - - I don't know

7
8 9

when it ended, but it was sometime in the early summer
that the comment period ended, and because of the
volume, the huge volume of comments that came in,

10 11
12 13

we -- the staff needed to read and evaluate them and
get a sense of what the concerns and issues were.

And it i S at that point that you begin to write
the 404 (b) (1) evaluation, is after the comments come

14 15 16

in.

It is not prior to going to notice or at notice

that you begin to write that. So this is not, truly
in my view,

coming to the grappling

with this issue
in

17
18

and whether or not we could use the stated purpose

the public

notice as our premise

to write the

19
20

404 (b) (1), it would not be unusual for it to come up

at this point in time in this process because the
large number of comments that they had to read and

21
22 23
Q

assimilate. And for this case it's -(By Mr. Palmer) Explain to me how the comments that

24 25

came in after public notice would in this case change
the Corps' opinion or change your opinion as to what

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(

1
2
3

processing the permit?

MS. CARIAN: Obj ectiön, misleading.
THE WITNSS: That's not a term I would put on
it. I do recall that we had to respond to
congressional inquiries periodically, as do we on

4 5
6

other projects. And it is the case that when we
respond to a congressional inquiry, it is the project manager who sits down and drafts at least the initial

7
8 9

response. That person may not do the final, but they
at least draft the initial. So to the extent that
they are spending time working on replying to a

10

11
12
13
"

congressional inquiry, they are in fact not working on
any of their other proj ects . They i re responding to

)

14

inquiries.
Q

15 16
17

(By Mr. Palmer) Do you recall making the

taking whoever's advice that was that we don't know in the message and making the applicant aware that any
time spent responding to congressional inquiries or other inquiries of politicians would further delay the

18 19 20

proj ect?

21
22 23 24 25
Q

MS. CARIAN: Objection, question is
confusing.
THE WITNSS: Yeah, that is a confusing. Well,
I am confused.

(By Mr. Palmer) Well, what are you confused about?

Marlis DeJongh & Associates
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(

-,

1
2
3

A

You i re drawing a conclusion in your question saying
that by responding, we therefore automatically delay
the proj ect . Some decisions may be delayed by

4
5
6

multiple requests to reply to congressional
inquiries. I don i t know that that i s true that they

all would, and I don't know that that's true in this

7
8
Q

case.
Well, I was just taking this statement at face value,

9

which says -A
Q

10 11 12 13

Okay. I wouldn i t do that myself.
-- instead, and he gives as an example, When Steve is

helping to develop, adjust, justify and refine a
schedule, he is not evaluating the revised draft EIS.
Someone needs to tell the applicant that.
A
Q

\~.)

14

15

Okay.
And my question is just based on this, did someone
tell the applicant that to the extent that Mr. Martin

16 17
18

is working on the schedule, he i s not working on the
EIS?
A

19
20

Okay. I don i t know. It is quite possible they did.
It is typical of the kind of thing we would tell
applicants then, and we do tell them now.

21 22
23
Q

Let me ask you to take a look at Exhibit 43. For the
record, this is dated 3 November 1995.
(Witness reviewing document.)

24
25

Marlis DeJongh & Associates (206) 583-8711

DSJ 000882

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 41 of 92

AN ROBERTA UHICH - By Mr. Palmer

198

(

1 2
3

A
Q

Okay.
Do you recognize this document?
I don't recall seeing it, no.

A
Q

4
5 6 7
8

Do you know what it is? Do you have an understanding
as to what it is?

A
Q

It is a fact sheet.

Under what circumstances does the Corps district
generate a fact sheet?

9

A
Q

Tyically, for briefing managers.
And you would expect these to be accurate; is that

10
11 12
13
)

correct?
A
Q

One would hope, yes.

Do you know who
drafted this one?

do you have a belief as to who

14 15 16
A

Actually, I don't. I can tell that it was not our
office because this is not our code or is it our

17
18

code? No, it i S not our code. This is some other

division, it looks like, authored it. I would have no clue. I would have no belief as to who would have
done it.
Q

19 20 21
22
23

If you look at the -- it appears to be, at least the

stated purpose of the fact sheet is a pre-brief of the

North Pacific Division Commander for a meeting
requested by Pierce County scheduled for November 7th.

24
25
,.

And one must assume that's November 7th, 1995 since

\
Marlis DeJongh & Associates (206) 583-8711

DSJ 000883

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 42 of 92

AN ROBERTA UHICH - By Mr. Palmer

199

(

1

the document is dated November 3rd, 1995. Stated--

2
3

you'll look -- you i II see in paragraph (g) there are
various causes for delays that have been written. And
No. 1 states, The proj ect was shuffled between proj ect

4
5
6

managers between the first 1.5 years due to employees
leaving and one having two heart attacks.

7
8

Is it your understanding that that shuffling between project managers was a cause of delay?
A
Q

9

Actually, no. I would take issue with that statement.

10
11 12 13

What about No.3, another cause for delay is the fact
that, Technical support was diverted to the Auburn

Race Track application for several months - leaving
only the project manager to work on the landfill

\.

)

14

application.
Do you agree with that?
A

15 16

To be honest, I don't know. I don i t recall when
Auburn Race Track was occurring relative to this one.
What about number - - if you listed as a cause for

17
18
Q

19 20

delay disagreements with the applicant and the county
as listed above and on the adequacy and the tone of

21
22 23
24
A
Q

the NEPA document, specifically, on the adequacy and
tone of the NEPA document, do you recall disagreements
on those issues being cause for delay?

Yes. I remember that being discussed.
And specifically, who do you remember discussing that?

25
.1

Marlis DeJongh & Associates (206) 583-8711

DSJ 000884

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 43 of 92

Exhibit 1 03

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 44 of 92

. -.t; '.

i

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

RESOURCE INVESTMENTS, INC., and LAND RECOVERY, INC.,

)

)
)

Plaintiffs,
v.
UNITED STATES OF AMERICA,

) ) )
) )

No. 98-429L
,

Defendant.

) )
)

(g(Q (?)1

DEPOSITION UPON ORAL EXAMINATION OF

STEPHEN MARTIN, PH. D.
,

''!

)

Monday, November 8, 1999
9:00 a.m.

701 Fifth Avenue, Suite 6100 Seattle, Washington

Reported by Mar1is J. DeJongh, CCR, RPR

., ,.,;o..

z DEFENDANT'S ~ EXHIBIT 1 103 !i
'"

~

-~J

~

MARLIS J. DeJONGH & ASSOCIATES 1218 THIRD AVENUE, SUITE 1122, SEATTLE, WA n01 fì1

206-583-8711

DSJ 000885

Case 1:98-cv-00419-LB Document 184-3 Filed 12/22/2006 Page 45 of 92 DEPOSITION OF STEPHEN MARTIN, PH. D.; 11/8/99
2
i

1

APPEARANCES
For the Plaintiffs:

2
3
4

5
6 7 8 9

JONATHAN M. PALMER, Esq. HELLER EHRMAN WHITE & McAULIFFE 701 Fifth Avenue, Suite 6100 Seattle, Washington 98104-7098

For the Defendant:

LORI CARAMANIAN, Esq. U. S. DEPARTMENT OF JUSTICE P.O. Box 663 Washington, D.C. 20044-0663

and
SIRI NELSON, Esq. U. S. ARMY Corps OF ENGINEERS P.O. Box 37551 Seattle, Washington 98124-3755

10
11 12 13
14

Court Reporter:

MARLIS J. DeJONGH, CCR, RPR 1218 Third Avenue, Suite 1122 Seattle, Washington 98101

15 16
17

18

19 20 21 22

23
24

25

MARLIS J. DeJONGH & ASSOCIATES 1218 THIRD AVENUE, SUITE 1122, SEATTLE, WA 98101

206-583-8711 DSJ 000886

Case 1:98-cv-00419-LB Document 184-3 Filed 12/22/2006 Page 46 of 92 DEPOSITION OF STEPHEN MARTIN, PH. D.; 11/8/99
30
1

A.

I don't

recall saying that, but if it's in

Ann 's

2
3 4

notes, then I probably did. But I would have to review this in context of the entire schedule. I
can't recall whether -- I can't put this in context

5
6
7 8

wi th other dates.
Q. If you look down at the third bullet up from the
bottom on that same page, it states, there's a
statement attributed to Kirk, quote, if County were
Applicant, we'd ask if they could condemn land.

9

10 11 12
\

Will we make that a requirement of the private
Applicant, close quote.

Do you recall the issue of condemnation coming

13
14

up during your, during the period that you were
working on the EIS?

15 16
17 18

A. Vaguely, yes.

Q. What, if anything, do you recall about that issue?
A. That it was an issue.
Q.
Do

you

recall if

it

was

--

an

issue to

whom?

19

A. Q.

To

20
21 22

the applicant and to the Corps. Do you recall anything about what made that an issue?

A. No, sir.
Q. So you have, your testimony is that you have no
recollection of this meeting that took place on

23
24

25

May 24, '95 other than what you've mentioned? No

MARLIS J. DeJONGH & ASSOCIATES 1218 THIRD AVENUE, SUITE 1122, SEATTLE, WA 9R101

206-583-8711

DSJ 000887

Case 1:98-cv-00419-LB Document 184-3 Filed 12/22/2006 Page 47 of 92 DEPOSITION OF STEPHEN MARTIN, PH.D.; 11/8/99

31
1

independent recollection, I should say.

2
3
4

A. Would you please restate that.
Q. Is it your testimony then that you have no
independent recollection of what occurred at the
May 24, 1995 meeting?
A.

5
6 7 8

Correct.

If you had not shown me this, I would have

had no recollection.

I do now recall the subj ect

9

matter. Q. And what is your recollection now that you recall

10
11 12
,

it?
A. 1'm just, I agree with what Ann -- I agree that

Ann's notes are accurate. That 's. . .

13 14 15

)

Q. Do you recall at any point being pulled off the RII
project because you were needed on the Auburn
racetrack EIS?

16
17 18

A. I would have to say no.
Q. You did work on the Auburn racetrack EIS?

A. Yes, sir.
Q. But you don't recall being instructed to devote
your energies to that as opposed to the RII

19

20
21 22 23 24

application?

A. I don't recall.
Q. Do you recall the schedule for the -- do you recall
that the schedule date for the, the scheduled
proj ected date for the completion of the draft EIS

25

MARLIS J. DeJONGH & ASSOCIATES

1218 THIRD AVENUE, SUITE 1122, SEATTLE, WA 981 ni

206-583-8711 DSJ 000889

Case 1:98-cv-00419-LB Document 184-3 Filed 12/22/2006 Page 48 of 92 DEPOSITION OF STEPHEN MARTIN, PH.D.; 11/8/99

32
1 2

was extended several times during the proj ect? Any
recollection about that?

3
4

A. I recall something of that nature but I can't
remember if there was, what the extension was or
when it was, or any of the specifics.

5
6 7
8 9

Q. Do you recall any delays cropping up in the, during
the time that you were working on the federal EIS
for the RII proj ect, anything that you would

characterize as a delay?

10
11 12 13
i

A. As a delay?
Well, considerable amount of time was spent in
obtaining acceptable information from the
consul tanto

14

Q. What in particular can you think of?
A. What I recall is the alternatives analysis and some
of the resources and impact, resource impacts were
not quite acceptable, it needed reworking.

15

16
17 18

Q. Can you think of anything -- can you be more

19

specific?

20
21 22 23
24

A. Not without going into the record.
Q. So if you were to review the record you would be
able to figure out specifically what caused the
delay or the delays, that you recall?

A. Well, rephrase -- could you repeat that?
Q. Sure.

25

MARLIS J. DeJONGH & ASSOCIATES

1218 THIRD AVENUE, SUITE 1122, SEATTLE, WA 98J 01

206-583-8711 DSJ 000890

Case 1:98-cv-00419-LB Document 184-3 Filed 12/22/2006 Page 49 of 92 DEPOSITION OF STEPHEN MARTIN, PH. D.; 11/8/99

33
1 2 3
4

MR. PALMER: Could you read that back.
(Pending question read by the

court reporter.)
A. Yes.
Q.
(By Mr. Palmer)

5 6
7 8

So you i ve mentioned the cause of

delays as being, one, the inadequacy of information
concerning the alternatives analysis.
Is that

fair?

9

A. As I recall.
Q. And then also, inadequacy of information that was
produced by the consultant concerning resource

10
11

12

impacts?
A. It's incomplete information rather than inadequate.

)

13
14

Q. And can you think of any specific instances of where
you were unable to obtain complete information from
the consultant on resource impacts?

15

16
17 18

A. No.
Q. What do you mean in particular by resource impacts?

19

A. Proj ect impacts on resources due to the construction
and operation of the project on fish and wildlife,
air quality, noise, et cetera.

20
21 22

Q. Would you, do you recall that the information
presented, that the information presented in the

23
24 25

various drafts of the EIS that were given to you by
the consultant were presented in a biased manner?

MARLIS J. DeJONGH & ASSOCIATES 1218 THIRD AVENUE, SUITE 1122, SEATTLE, WA 98101

206-583-8711

DSJ 000891

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 50 of 92

Exhibit 104

Case 1:98-cv-00419-LB
"-'

Document 184-3

Filed 12/22/2006

Page 51 of 92
1

l

.1

1

UNITED STATES COURT OF FEDERA CLAIMS

2 --- -. --. --..- - -. - -- - - - - .-- - - - -- - - --... - - - - - - --. - - - - -. - - - -3

RESOURCE INVESTMNTS, INC., and

)

4
5 6

LA RECOVERY, INC. ,

)

Plaintiffs,
vs.
UNITED STATES OF AMRICA,

)

)

No. 98-419L

7
8

)

Defendant.
-

)

CC(QfPV

9 ---- ----..- -- - --- ------ - - --- - - - - - - --..-- - - - - - -- - - - - ---. --10 Deposition Upon Oral Examination Of

11 BILL LEONAR
- ~"~1.

12
í,'

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -10:05 a.m.

13 14 15 16

October 25, 1999

4735 E. Marginal Way South
Seattle, Washington

17
18
19

20

21
22
-.

z DEFENDANT'S
¡ ST EXHIBIT

23

l 1 o~

i

24

i

,-- --1-

25 REPORTED BY: Keri A. Aspelund, RPR, CCR AS-PE-LK-A412QF

DSJ 000892

SEATTLE DEPOSITION REPORTERS (206) 622 - 6661

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 52 of 92
2

1 APPEARCES:
2 For the Plaintiffs: DANIEL D. SYRDAL, ESQ.
3

Heller, Ehrman, White & McAuliffe

4
5 6

600 Columia Center
701 Fifth Avenue

Seattle, Washington 98104-7098
For the Defendant:

7
8

AN D. NAVARO, ESQ.

u. S. Department of Justice
-

9

Environment and Natural Resources

10

Division
601 Pennsylvania Avenue NW, Room 854
Post Office Box 663
Washington, D. C. 20044 - 0663

11
12

13 14 15 16 17 18 19

and

SIRI

NELSON, ESQ.

U.S. Army Corps of Engineers
4735 East Marginal Way South
PO Box 3755

Seattle, Washington 98124-3755

20 For the Department of Ecology:

21 JOAN M. MACHiORO, ESQ.

22 Assistant Attorney General
23 629 Woodland Square Loop SE

24 PO Box 40117
25
Olympia, Washington 98405-0117
SEATTLE DEPOSITION REPORTERS (206) 622-6661
DSJ 000893

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 53 of 92
8

BILL LEONAR, 10-25-99
1 2

representative of the shore1ands program.

Q.

Were you aware before today that LRI and RII

3 had designated you as a potential witness for the trial

4 of this case?
5

A.

Well, yeah" when I was notified that I would be

6 called to be deposed anyway.
7

Q.

But no one from LRI or Heller Ehrman contacted

8 you about it?
9

A.
Q.

No.
Could you sumarize briefly for me what you

10

11 might be able to testify to at trial in terms of what
12 your broad involvement was with the 304th Street project?
I ,,'

13

A.

Sure. My involvement was to provide technical

14 expertise on the 401 Water Quality Certification. The

15 technical expertise that I provided was in assessing what
16 the proj ect impacts would be to wetlands that would occur

17 and have been occurring now at the site, and what - - and
18 speak to the adequacy of any proposed mitigation that LRI

19 would present. Those pieces of informtion would then
20 lead to my making a recommendation to our 401 Water

21 Quality Certification people as to whether to issue,
22 deny, or issue with conditions the 401 Water Quality
23 Certification. That's kind of the big picture of what my

24 role was.
"

25

Q.

And ultimately did you make a recommendation?

SEATTLE DEPOSITION REPORTERS (206) 622-6661

DSJ 000894

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 54 of 92
9

BILL LEONAR, 10-25-99
1 2
3

A. I did.
Q. What was your recommendation?
A. My recommendation was to approve the 401 Water
Quality Certification with a series of conditions. The
conditions essentially required that the mitigation plan,
the Wetland Mitigation Plan that LRI' s consultants had

4
5
6

7
8 9

prepared would be required as a condition of the Water

Quality Certification. So, all these different
components that were discussed in the 'plan would become a

10 11
12

condition that they be implemented. And I think we had
some additional conditions that spoke to specific

elements of the plan, so it was a bit redundant, but given the scope of this project, we wanted to be as sure

)

13

14
15 16

as we could be that we were spelling out exactly what our
expectations were.

So, that - - all right, and I should mention

17 18
19

another thing, and you let me know if I'm getting off target here, but when the Water Quality Certification
disappeared, when it was ruled by federal courts that there was no 404 Permit, there was another aspect to my
involvement, which was essentially playing the same role
through the 90.48 Water Quality Order.

20

21
22
23

Q.

And
And

24

A.

that's that's

a recent order? a recent order, and 1'11

let

it go

25

at that.
DSJ 000895

SEATTLE DEPOSITION REPORTERS (206) 622-6661

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 55 of 92
10

BILL LEONAR, 10-25-99
1

Q.

So, your role in the recent order, and I'm

2 sorry, what numer did you?
3

A. Q.

90.48.
And is that a regulation, 90. 48?

4
5 6

THE WITNESS: That's an RCW, correct?

MS. MACHIORO: You need to answer the

7 question.
8

Q.

The 90.48 is the designation for a regulation?

9

A.

Yes.

10 Q. And your role in that recent order was again to
11 provide technical support?
12 13
A.
Q.

Yes.
And to make recommendations as to what

14 conditions should be put in the order?
15 16
A.
Q.

Exactly.
You mentioned the scope of the proj ect; was

17 this, in your experience, a particularly complicated

18 proj ect?
19

A.
Q.

Absolutely.
And what were the reasons for that?
Well i the scale of the proj ect, for one. I

20

21

A.

22 mean, I haven't looked at the plan or any of the
23 paperwork on this for some time, but somewhere on the

24 order of 22 acres of wetland fill. At the time I was 25 working on it, it would have been - - at the time it was
DSJ 000896

SEATTLE DEPOSITION REPORTERS (206) 622-6661

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 56 of 92

BILL LEONAR, 10-25-99
1 2
3

11

being proposed and reviewed, I made the comment that it

would be the single largest wetland fill ever permitted
in the state of Washington, so from that standpoint, we

4
5
6

devoted a lot of time and attention to this project to

make sure it was being done properly. So, in essence the
scale of the impacts were fairly extraordinary.

7
8

Q. Do you recall what year you first heard about
this project and started working on it?

9

A. I believe it was - - it was éither 1989 or '90,
somewhere in that time period.

10

11
12 13

Q. And did you work on the project all the way
through the certification and then the recent order?

A. Well, I'm no't sure I understand your question
exactly.

14
15

Q. Did you work on the project continuously, let's
take first through the 1996 certification?

16 17
18 19

A. I did and I didn't. Let me explain that. I
did have involvement from 1989, when the permit first
came in the door, it may have even been before the actual

20

permit came in the door, we scheduled some site visits

21
22 23 24
".

out to look at the site. I was not the lead person at
that point in time. There were a couple of other people

who were designated leads in my unit. Subsequently, the
person who was

in charge left the agency, and I inherited

25

it as my proj ect at that point in time, and I'll guess
DSJ 000897

SEATTLE DEPOSITION REPORTERS (206) 622-6661

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 57 of 92
12

BILL LEONAR, 10-25-99
1
2 3

that the year was about 1991, somewhere in that time

frame. From that point on, I worked continuously on the
project through to the point in which we issued the
certification, and actually beyond, because I worked on
it again through this 90.48 order I referred to.

4
5
6

Q. You mentioned the lead on the project; were you
in charge of the project for Ecology?

7 8 9

A. I was in charge of the wetland aspects of the

proj ect . The lead person there were different people
in charge of different aspects of the proj ect. We had our hydrologist in charge of looking at groundwater or

10

11
12
)

potential groundwater impacts. I was the lead for
looking at wetland impacts and what mitigation steps

13

14 could be taken on the wetland aspects. We had another 15 person who was the lead on kind of the permit issues, the 16 person that actually compiled all the technical
17 recommendations from myself and from Cris Matthews, who

18 you're going to hear from this afternoon, and compiled
19 that into a Water Quality Certification. We also had a
20 couple of other folks involved, Sue Mauermann kind of

21 represented kind of our - - who is our Southwest Regional
22 23
Office director, she was kind of the team leader

representing the agency. So, there was no, I guess I
would say there was no absolute single leader in commnd
and control of all activities. We functioned as a team.

24
',-.

)

25

SEATTLE DEPOSITION REPORTERS (206) 622 - 6661

DSJ 000898

Case 1:98-cv-00419-LB

Document 184-3

Filed 12/22/2006

Page 58 of 92
13

BILL LEONAR, 10-25-99
1
2 3

Q. What about Maria Peeler, what were her

responsibilities?
A. Well, Maria was one of several people who
actually worked on the Water Quality Certification. The
person I referred to as kind of compiling the comments

4 5
6

from people with different expertise. She was the last
person, and I believe the person that actually prepared
the certification, but there were a few people along the

7
8

9

way who performed that same function representing that

10 11 12
13

group.
Q. Who were the other people?
A. Oh, the first person was Rick Vining, I believe
there was another woman, who is no longer with the agency, Pat Trerice worked on it for a bit, Tom Luster worked on it some, and Maria may have been the last, so
there were, from what I recollect, four different people,

14
15

16

17 18
19

and Maria was only involved for the last year perhaps.

Q. Did Tom Luster also work on the 90.48 order?

A. Yes.

20

Q. Was he kind of the lead on the 90.48 order?
A. Well, again, we operated as a team the whole
way through, and including that process, so Tom was an
important person in there, but I would not say he was the

21
22
23

24
I

lead. H