Free Motion for Summary Judgment - District Court of Federal Claims - federal

Case 1:95-cv-00650-LSM

Document 120-4

Filed 02/06/2008

Page 1 of 5

EXHIBIT B

Case 1:95-cv-00650-LSM
Albert Buchter

Document 120-4

Filed 02/06/2008

Page 2 of 5
October 29, 2007

Aled Aloisi v. United States of America

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
ALFRED

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ALOISI,

et al.,
)
) )

)

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Plaintiffs,
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vs.
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UNITED STATES OF AMERICA,
)

No. 95-650L

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)

Defendants.
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) )

DEPOSITION OF ALBERT BUCHTER
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Monday, October 29, 2007
9:30 a.m.

Reported. By :

CRAIG W. WOOD, RPR, CSR No. 9789

CRAG WOOD REPORTING
Reddig, Californa --- (530) 244-0789

Case 1:95-cv-00650-LSM
Albert Buchter

Document 120-4

Filed 02/06/2008

Page 3 of 5
October 29,2007
Page 4

Alfred Aloisi v. United States of America
Page 2

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APPEARCES
3
4 For the Plaintiffs:

1 BE IT REMEMBERED tht on Monday, October 29, 2 2007, conencing at the hour of9:30 a.m, of said
3 day, at the offces of Klamth Nationa Forest, 1312

5 FOLEY & LANER
Washington Harbour
6 3000 K Sttt, N.W., Suite 500

4 Failane Road, Yreka Caiforna, pefore me, Crag W.

5 Wood, a Cerfied Shortand Reporter in and for the

Washington, DC 20007-5101
7 (202) 295-4017

7 ALBERT BUCHR,

6 State of Californa, there personaly appeared

BY: LAWRCEG.McBRIE
8
9 For the Defendant:

8 who, being fITst duly sworn by me to tell the tr,

10 DEPARTMNT OF JUSTICE
Environmental & Natul Resoures Division

10 ---000--11

9 wa exaed and testified as follows:
MR McBRIE: Lawrence G. McBride, Foley &

11 601 D Stret, N.W.
Washington, DC 20004
12 (202) 305-0238

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BY: BRUCE K. TRUBEN
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Ladner, for plaitis. Ths is a depsition in - the
caption of

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Also Prsent:
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Fred Aloisi
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~o-

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the case is Aloisi, A-l-o-i-s-i, et al., versus
Feder Clai.

United States, No. 95-560, in the Cour of

MR. ALOISI: It's 650.

MR McBRIE: All right. Yes?
MR Aloisi: It's 650 not 560.

MR McBRIE: Did I say 95-650?
MR ALOISI: . You said 560, it's 650. Excuse me. .

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MR McBRIE: And today is the deposition of AI
Buchter. Before we actuly sta with questions for Mr. Buchter, do you want to put yourelf on the record? MR. ÌRUBEN: Yes. Bruce Trauben representig defendat United States. And, also, I am -- I'l be
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Page 3

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1 objectg today. I'mnot Mr. Buchtets personal attorney,

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INEX
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2 but I'm here reresentig the defendat.

3 Also, I wated to state on the record, as we

EXAATION BY:
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Mr. McBride
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Page

4 discussed before going on the record, that all objections
5 as to admssibility will be preseived and we will be

6 objectig as to the fomm of questions which ca be .

Mr. Trauben
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7 cOlTected durg the course of the deposition.

Mr. McBride
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8 BY MR McBRIE: Th you, Mr. Trauben.
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Mr. Traube
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EXAATION
BY MR. McBRIE:
Q. I'd lie to go back over a few ground rues here,

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Mr. Buchter. Do you recall that I deposed you ten or 14 11 year ago?
A. Yes.

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EXHITS
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NO DOUMS WE MAD AS EXITS

deponent in the case, so we spent a long tie where I was leag the Forest Seivce, if you will, and learg who 20 wa in what position and all tht kid of stuff. So I'm
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going to be going back into some of those thgs.

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Q. You do recall that deposition.

In that deposition I th you were my fit

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-000-

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And Mr. Trauben could have an objection that some of these questions might have been asked and anwered, but
I'm going back into these thgs sort ofto tae us to the

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~::..~lif~~~~~~~..'..".na""-~~~~ç~~~'"~~~~~~~~-m'-..
CRIG WOOD REPORTING
Redding, Californa (530) 244-0789

points where I need to get to supplemental questions. And
_.

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2 (Pages 2 to 5)

Case 1:95-cv-00650-LSM
Albert Buchter

Document 120-4

Filed 02/06/2008

Page 4 of 5
October 29,2007
Page 76

Aled Aloisi v. United States of America
Page 74

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Q. You don't remember? A. Again, I'd have to speculate.

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Q. In fact, it says in the first paragrph that

"Forest Servce personnel included Al Buchter"?
A. Yes.

Q. And how far did tht envionmental assessment
get, if you recall? A. We did review on the ground. Whether it wa

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Q. That's you.

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complete, I would th that there was - there would have been questions that were geerted. And probably some
cOlTespondence back to Fred on clarfication of processes

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And what was the purpose of that field visit? A. In 1992, the forest was reviewing mines for
possible water contamination.
Q. Is this par of the

EA process?

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or whatever. Q. Are you speculatig now or ar you rememberig? A. I am speculatig. I know that there wa meetigs

A. Ths was not.
Q. If you look on the third page, under "Reconuendations." See reconuendations one through five

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on the grund.

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where I'm looking?
A. Okay.

Q. Fine. And any other recollection as opposed to 14 speculation about how far it got or what was done?
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A. No.

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envinmenta assessment or the initiation of the 20 envionmental assessment either in 1992 or in 1989.
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MR McBRIE: Mr. Trauben, I don't th we've
ever seen any file related to that. So I'll follow up with you in that regad that would constitute an

Q. And it says, "Those are our highest priority and are of prime importce for assessment of a Plan of 16 Operation and the NEPA process"?
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A. Yes.

Q. Do you see where I'm reading?
A. Yes.
Q. Is the EA par of the of

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the NEPA process?

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or-

Than you. I'm done. Do you have clarficaton

A. Yes.

MR TRUBEN: Yes. I' have some questions.
Bruce Trauben for the United States, just for the record.
Page 75

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Q. SO then was this site visit related to the NE A process?
A. This was separate from the NEP A process.

Q. Did it identify some information needs for the
Page 77

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NEP A process?
A. Yes.

EXAATION
BYMR TRAUBEN: Q. Mr. Buchter, can you take a look at Forest
Servce 110. Take a minute and take a look at that

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MR McBRIE: I'm going to object to form You're askig hi all "yes" or "no" questions. He's your
witness. Can you induce tesony intead of askig hi

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document.
A. (Reviewing document.)

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"yes~1 or "no" questions, please? Objeètion to form

BY MR. TRUBEN:
Q. And there's a list of items that were identified
tht Libert mig needed to provide. Do you see that

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Q. You don't have to read it all in detail, just famliare yourself with what it is.
A. Okay.

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Science

Q. For the record, that is a September 25, 1992,
memorandum. Addressed to Jay West, Fish and Eart"

list? A. Yes, I do.
Q. And, for an examle, if

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you look at the item

Staff Offcer. And it's signed by Polly Haessig, Cal
Conkin and Iuan de la Fuente. Is that what you're
looking at?

niner thee on the thd page, says, "Liber mig,

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A. Uh-huh.

Incorporated needs to provide engieerg design and map locations for roads, pits, ponds, mill sites and other 16 planed ear work and strctues for review." I read
tht cOlTectly?

Q. Is that FS-l 1O? Did you say "yes"?
A. Yes.

Q. Okay. And the subject is "Eddy Gulch Mines Field

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A. Yes.
Q. To your knowledge, were those engieerig plan

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Visit September 17, 1992." Do you see the subject line?
A. Vb-huh.
Q. That's cOlTect? "Yes"?

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submitted? A. My best COlTect recollection is no.

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A. Yes.

Q. Then on the last page, item nie -MR. McBRIDE': Is there a question out?
MR. TRUBEN: Yea. I'm Q. Says that, "The Plan of

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Q. And did you partcipate in that field visit?
A. Yes.
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still thg.
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Operations must estite

CRAG WOOD REPORTING
Reddig, Californa (530) 244-0789

Case 1:95-cv-00650-LSM
Albert Buchter

Document 120-4

Filed 02/06/2008

Page 5 of 5
October 29, 2007
Page 80

Alfred Aloisi v. United States of America
Page 78

1 the volumes of fie sedient and talings tht wil be
2 trped by the ponds and establish reclamtion sites for

1 Q. State law?

2 A. It's a state law for Californa. And that is a
3 specic person.
4 Q. I believe earlier you testified that the April

3 the sedit." . Do you know whether those estites were

4 submitted?
5 A. To the best of my recollection, no. They were
6 not submitted.
7 Q. Was there a need for an estite of

1,

5 1992 plan had a number of acres that were different from
6 acres that were proposed to be distubed in earlier plan.

volume of

Gulch? Was that 8 water tht would be used from the Eddy 9 one of the inonntion needs that were identified to
10 complete the NEP A process?

7 Do you recall tht testiony? 8 A. Yes.
9 Q. And I th that Mr. McBride elicited testiony

10 that the number of acres was actually less than the areas
11 of proposed distubance from the earlier plans. Do you

11 A. It would be requied because the east fork of
12 Eddy Gulch for a considerable porton of the yea produces
13 litte wate. So if 14 for milling 15 depletion of

12 recall that testiony?

you're going to be using that water
and power genertion, you'd have a complete

13 A. Yes.

14 Q. Is it a factor -- you can tell me, does it matter
15 where those acres are located withe project area?

the creek itself.

16 Q. To your knowledge, was an analysis of

the volume

16 A It would matter where they were located because
17 of the tye of clearces tht would be required. An area

17 of water usage for the Liber mie submitted?

18 A. Best of my recollection, no.
19 Q. And you would have needed that inormtion to
20 complete the NEP A process?

18 that would be cleared in a brush field doesn't have

21 A. Yes.
22 Q. Do you still have Libert Consolidated Mie tab
23 five? Le me put in front of you Libert Consolidated

19 anywhere near the concer of an area tht'd be cleared in 20 a -- an old growt forest. 21 Q. And that's because of what?

22 A. The distubance to habitat for the Spotted Owl.
23 Q. Were there Spotted Owls near the proposed

24 Mie tab five document, which is dated Febru 4, 1994. 25 There's a list of iteed activities on that
Page 79

24 proj ect?
25 A. There were some near the project.

Page 81

1 document. lbelieve you testified earlier that to haul 2 waste rock, which is item one, and the second half of that
4 ths not depend upon the location and situation of

1 Q. And you're not an expert on the Spotted Owl?

2 A. No.
3 Q. SO in connection with ths project, if -- what
4 would you do, if you had specific recollection, to inorm
5 yourelf of what could be done, what could not be done
6 with respect to the preSence of

3 page would have requied diggig. My question is, would the
5 wate rock?

. 6 MR. McBRIE: Objectionto form.

the Spottd OWL?

7 MR. TRUBEN: Wht's your objection? 8 MR. McBRIE: You're leading hi to a "yes" or
9 "no" question. Can you induce testiony rather th to

7 A. Wht I would requie from a proponent would be
8 where the project was located, what wa going to be done
~ as far as cleaces, new road constrction, excavation

10 ask a "yes" or "no" question?

11 MR. TRUBEN: I'll rephre.
12 Q. Whether or not the -- what would that depend 13 upon, whether to haul waste rock would requie diggg?
14 A. Well, if

10 pits, the specifcs on what kid of clearg would be 11 done. And then I would tae that inonntion and go to

12 the widlife biologist, give hi the inonntion, and then
13 he would conduct a undergrund sUley and a paper sUley

you're just hauling material, tht's

15 what they're authorized to do. It iners that it's going 16 to be dug and loaded on the trck. But they're authorized

14 and intiate consultation serce for potential for 15 imacts to the Spotted Owl or other related species. It's 16 not just the Spotted Owl that is of concer.

17 to haul.
18 Q. SO if

the waste rock is sitting on the surface of

17 Q. There are other species? 18 A. There are other species.
19 Q. What other species?

20 A. No.

19 the ground, would that require digging?

21 Q. Also, earlier you referred to SHPO. Do you 22 know SHPO refers to?

20 A. Specifics, I'm: not sure, but it would be both 21 aquatic species tht may be imacted and terrestral
22 species like Mollusks or plant species.
23 Q. And would that be done in-house inormly

23 A. State Historic Preservation Officer.

24 Q. Is that a state act?

25 A. It's--

24 between you and the wildlife biologist, the consultation?
25 A. The intial tag about it would be inorm,
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CRAG WOOD REPORTING
Redding, Californa (530) 244-0789