Free Motion for Sanctions - Rule 37 - District Court of Federal Claims - federal

EXHIBIT L TO PLAINTIFFS' MEMORANDUM IN SUPPORT OF MOTION FOR SANCTIONS

Case 1:01-cv-00201-VJW

Document 148-14

Filed 02/23/2006

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UNITED STATES COURT OF FEDERAL CLAIMS ) CAROL AND ROBERT TESTW UIDE, ta. ) e l , ) Pli tfs an if, ) v . ) ) ) THE UNITED STATES OF AMERICA, ) ) Dee d n . fn a t ) _____________________ ____________________

No 0 - 0 L . 12 1 Ho o a l Vit rJ W os i n r b e co . lk

DEFENDANT UNITED STATES'SUPPLEMENTAL RESPONSETO PLAINTIFFS'INTERROGATORIES NOS. , , , , , , , 1 2 3 4 5 6 8 AND 1 0 Defendant, the United States of America, b and throu h its u y g ndersig cou , ned nsel hereb su pements its resp y pl onses to P aintiffs'I l nterrog atories Nos. , 2 3 4 5 6 8 and 1 , , , , , , 1 .Defendant incorp 0 orates b reference its p iminarystatement and obections to y rel j instru ctions, as welas the obections to each I l j nterrog atory as set forth in its initial , resp onses. Su p e n a Re p n et In e r g t r Nu e 1 p lme t l s o s o tr o a o y mb r In e r g t r Nu e 1W ith resp to the fou tr o a o y mb r ect rteen p erties now desig rop nated for the first trial these p in roceeding identifythe fol s, l owingfor each p erty rop : ( whether y contend that p to the rel a) ou rior ocation of F A- 8aircraft to Oceana / 1 the p erties were ex osed to a noise l el ov or eq iv ent to the noise l el rop p ev ab e u al ev after the rel ocation and, if so, state the date or dates of su ex osu and the p ch p re recise b for asis y r contention; ou ( )for each su date or dates identified ab e, state the decib l el l el in b ch ov elev or ev s terms of the hig hest singe noise ev l ents, the freq encyof the hig u hest singe noise ev l ents, the dbl l eland the SEL l el aircraft noise to which each of the p erties was dn ev , ev of rop ex osed for each y b inningwith the first y j aircraft op p ear eg ear et erated at Oceana to p resent; ( if y contend that anynoise l el anyp c) ou ev for eriod ab e constitu a tak of ov ted ing an av ation easement with resp to anyof the p erties, p ide the date of tak ; ig ect rop rov ing and

Case 1:01-cv-00201-VJW

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Filed 02/23/2006

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(d) for each date provided above, state the number of touch and go operations and the number of field carrier landing practices performed at Oceana, and the type of aircraft involved for each year. Supplemental Response to Interrogatory Number 1 Defendant restates the objections asserted on February 22, 2005. Based on information and belief, and without waiving the objections asserted on February 22, 2005, Defendant provides the following supplemental response: Number 1( the expert report of Dr. Sanford Fidell addresses, and states the a) basis for, the DNL in the past at each of the eleven test properties. Number 1( Based b) on information and belief, the highest SEL events and the frequency of those events can be ascertained from the Noisemap data sets that we will be producing to plaintiffs. To the extent that the phrase " SEL level of aircraft noise to which each of the properties the was exposed"seeks information different from the highest SEL events and the frequency of those events, the request is too vague and ambiguous for Defendant to respond. Number 1( To the extent that noise level as measured by DNL at the test plaintiffs' c) properties at the time of the alleged taking is evidence of a taking, the test plaintiffs' properties have historically been exposed to comparable or higher DNL noise levels as reflected in Dr. Fidell's report. Defendant notes, however, that noise level alone is insufficient to establish a taking. Number 1( Based on information and belief, the d) types of operations performed at NAS Oceana as reflected in noise studies can, to the extent that they are not directly addressed in those studies, be ascertained from the Noisemap data sets that we will be producing to plaintiffs. The type of aircraft is addressed in the studies. With regard to your request in your September 7 letter for " list of beginning th a and end document numbers for all material previously produced to plaintiffs that you

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Case 1:01-cv-00201-VJW

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have given to your expert," we have previously provided you with a CD of documents (identical to that provided to Dr. Fidell), as well as his expert report. In a follow-up correspondence on September 1, 2005, we provided plaintiffs with a detailed description of the contents of the CD, including bates numbers and document identification numbers. We will be producing the noise data sets that were provided to Dr. Fidell for his analysis. With regard to your request that we produce "electronic copies of all documents not previously produced to plaintiffs in accordance with plaintiffs' imaging specifications," to the extent that you are requesting we re-produce documents already produced, Defendant objects. Supplemental Response to Interrogatory Number 2 Interrogatory Number 2 With respect to any avigation easement recited as having been taken in response to Interrogatory Number 1, state the factual basis for determining the date on which the avigation easement was allegedly taken. Supplemental Response to Interrogatory Number 2 Defendant restates the objection asserted on February 22, 2005. Defendant is currently investigating the issue. Defendant incorporates by reference its response to Interrogatory No. 1 above. Supplemental Response to Interrogatory Number 3 Interrogatory Number 3 With respect to any avigation easement, which you allege has been or was taken and identified in response to the preceding interrogatories, please state: (a) the fair market value of the avigation easement as of the date that you allege that the easement was taken; (b) the factual basis for determining the fair market value of the avigation easement you claim was taken; (c) the fair market value of each such property on the date on which you claim the avigation easement was taken; (d) The factual basis for determining the fair market value of such property interest on the date you claim the avigation easement was taken; and (e) whether the value of the property interest, either at the time that the avigation easement was allegedly taken, or at any subsequent time, has been prepared.

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Case 1:01-cv-00201-VJW

Document 148-14

Filed 02/23/2006

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Supplemental Response to Interrogatory Number 3 Defendant is still investigating the issue of when any prior avigation easements were taken as a result of prior aircraft operations. Defendant has not conducted an appraisal of the test case plaintiffs' properties before 19 9 9. Supplemental Response to Interrogatory Number 4 Interrogatory Number 4 With respect to any studies performed by or for the government and any analysis of the noise contours surrounding Oceana in 19 7, state 9 which, if any, noise contour each of the properties was in for each day of the year. If you contend that no noise contours were calculated for any of the properties for that year, identify any noise study or analysis done for that year that identifies noise levels affecting the fourteen designated properties. For each, identify the db ldn level single event and SEL level of noise for each property. Supplemental Response to Interrogatory Number 4 Without waiving the objections asserted on February 22, 2005, Dr. Sanford Fidell's expert report identifies the DNL experienced at the test plaintiffs' properties in 19 7. Based on information and belief, 9 SEL data can be ascertained from the Noisemap data sets that we will be producing to plaintiffs. Plaintiffs request for "an SEL noise analysis . . . for the entire area surrounding NAS Oceana . . ." and "specifically for the test case plaintiffs" is too vague and ambiguous for Defendant to respond. Supplemental Response to Interrogatory Number 5 Interrogatory Number 5 For any study or analysis performed by or for the government comparing jet noise levels and operational levels at Oceana prior to the relocation of F/A 18CD aircraft to Oceana with jet noise levels after the relocation, state the following: (a) the identity of any period when any of the fourteen designated properties were exposed to higher noise levels than after relocation; (b) the type of aircraft operating at such time period or periods and the decibels generated by such aircraft in every configuration and phase of operation (i.e. departures, arrivals, down wind breaks, touch-and-go operations, field carrier landing practices, power settings, and aircraft control configuration); (c) the total number and type of operations during each such period; and (d) the identification by date and author of each study done from which your conclusions were drawn.

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Case 1:01-cv-00201-VJW

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Filed 02/23/2006

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The foregoing UNITED STATES' SUPPLEMENT RESPONSE TO PLAINTIFFS' INTERROGATORIES NOS. 1, 2, 3, 4, 5, 6, 8, AND 10 were prepared under oath by the following person, who hereby certifies that these answers comply with RCFC 26(g).

/s/ CDR Dominick Yacono CDR Dominick Yacono, J AGC, USN Commander Navy Region, M id-Atlantic, Code (00LE) 1510 Gilbert Street Norfolk, VA 23511-2737

October 18, 2005 Date

Dated: October 18, 2005

Respectfully submitted,

/s/ Steven D. Bryant Steven D. Bryant Kelle Acock Trial Attorneys General Litigation Section Environment and Natural Resources Division United States Department of J ustice 601 D Street, NW Washington, DC 20004 Of Counsel: Robert J Smith . M ary S. Raivel Navy Litigation Office 720 Kennon Street SE, Bldg. 36 Washington, DC 20374

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