KTR00079

LT. GENERAL ELVIN R.
HEIBERT, III 4/29/2008
Page 1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN RE: KATRINA CANAL BREACHES CIVIL ACTION

CONSOLIDATED LITIGATION NO. 05-4182 K2
JUDGE DUVAL
PERTAINS TO MAG. WILKINSON
(Robinson, No. 06-2268)
Deposition of LT. GENERAL ELVIN R.

"VALD" HEIBERG, III, P.E., U.S. ARMY (RETIRED),
given at the U.S. Department of Justice, Civil
Torts Branch, 1331 Pennsylvania Avenue, N.W.,
Room 8061 North, Washington, DC 20004, on April
29th, 2008.
REPORTED BY:
JOSEPH A. FAIRBANKS, JR., CCR, RPR
CERTIFIED COURT REPORTER #75005
JOHNS PENDLETON COURT REPORTERS 800 562-1285

LT. GENERAL ELVIN R. HEIBERT, III 4/29/2008
Page 2 Page 4
1 APPEARANCES: 1 STIPULATION
2 REPRESENTING THE PLAINTIFFS: 2 IT IS STIPULATED AND AGREED by and
3 BRUNO & BRUNO 3 among counsel for the parties hereto that the
4 (BY: JOSEPH M. BRUNO, ESQUIRE) 4 deposition of the aforementioned witness may be
5 855 Baronne Street 5 taken for all purposes permitted within the
6 New Orleans, Louisiana 70113 6 Federal Rules of Civil Procedure, in accordance
7 504-525-1335 7 with law, pursuant to notice;
8 8 That all formalities, save reading
9 REPRESENTING THE UNITED STATES OF AMERICA: 9 and signing of the original transcript by the
10 UNITED STATES DEPARTMENT OF JUSTICE, 10 deponent, are hereby specifically waived;
11 TORTS BRANCH, CIVIL DIVISION 11 That all objections, save those as to
12 (BY: RICHARD STONE, ESQUIRE) 12 the form of the question and the responsiveness
13 (BY: KEITH LIDDLE, ESQUIRE) 13 of the answer, are reserved until such time as
14 P.O. Box 888 14 this deposition, or any part thereof, is used
15 Benjamin Franklin Station 15 or sought to be used in evidence.
16 Washington, D.C. 20044 16
17 202-616-4289 17
18 18 * * *
19 REPRESENTING THE U.S. ARMY CORPS OF ENGINEERS. 19
20 CORPS OF ENGINEERS, OFFICE OF COUNSEL 20
21 (BY: MARTIN R. COHEN, ASSISTANT CHIEF 21
22 COUNSEL FOR LITIGATION) 22 JOSEPH A. FAIRBANKS, JR., CCR, RPR,
23 441 G STREET, N.W. 23 Certified Court Reporter in and for the State
24 Washington, DC 20314-1000 24 of Louisiana, officiated in administering the
25 202-761-8545 25 oath to the witness.
Page 3 Page 5
1 PARTICIPATING BY TELEPHONE: 1 LT. GENERAL ELVIN R. HEIBERG, III, P.E., U.S.
2 THOMAS P. ANZELMO, ESQ. 2 ARMY (RETIRED)
3 JOSEPH E. BEARDEN, III, ESQ. 3 930 S. Rolfe Street, Arlington, Virginia 22204,
4 CHARLES M. LANIER, JR., ESQ. 4 a witness named in the above stipulation,
5 5 having been first duly sworn, was examined and
6 VIDEOGRAPHER: 6 testified on his oath as follows:
7 MIA MARBURY 7 EXAMINATION BY MR. BRUNO:
8 (Rick Sanborn Video Productions) 8 Q. Good morning, sir. How are you?
9 9 A. I'm fine.
10 10 Q. Once again, my name is Joseph Bruno.
11 11 Glad to meet you.
12 12 General, if we may, I would like to
13 13 begin by learning a little bit about your
14 14 personal background, particularly your
15 15 training, your education.
16 16 I see that you graduated from the
17 17 Industrial College of the Armed Forces. Is
18 18 that correct?
19 19 A. Correct.
20 20 Q. Where is that?
21 21 A. That's in Fort McNair about six miles
22 22 from where we're sitting here. Maybe five.
23 23 Q. All right.
24 24 A. In other words, in D.C.
25 25 Q. What kind of a degree is that?
2 (Pages 2 to 5)
Page 6 Page 8
1 A. It isn't. It's just attendance for a 1 District, correct.
2 year. And you get a diploma when you finish, 2 Q. Okay. When did you first join the
3 but it's not a degree, per se. 3 United States Army Corps of Engineers?
4 Q. I see. Okay. 4 A. 1953.
5 A. Although I did get a degree at same 5 Q. Can you generally describe for me the
6 time with some extra studies from George 6 kind of work that you did between your
7 Washington. Those were concurrent. 7 graduation from college and your receipt of the
8 Q. You also received a civil engineering 8 Master's degree and your entry into the Corps
9 degree testimony Cornell. 9 of Engineers.
10 A. No. 10 A. Actually, I entered the Corps of
11 Q. No? 11 Engineers with my bachelor's degree in 1953,
12 A. MIT. 12 and I went off after some schooling that
13 Q. Okay. Got this wrong. I thought 13 lieutenants get, because I was a lieutenant
14 you -- well, you received a Master's, though. 14 then, to what's called troop duty. I did that
15 A. Yes. 15 in Korea. I worked with Corps of Engineers
16 Q. Where was that? 16 soldiers in Korea doing battlefield kind of
17 A. MIT. 17 stuff.
18 Q. MIT. All right. So you didn't go to 18 (Whereupon Thomas Anzelmo and Joseph
19 Cornell. I've got this wrong. 19 Bearden joined the deposition via telephone.)
20 A. I have a grandson there and my parents 20 EXAMINATION BY MR. BRUNO:
21 met there, but I did not did to Cornell. 21 Q. All right, General. Sorry for that
22 Q. All right. You graduated MIT. And it 22 break, but please help me understand, I've
23 was in the field of civil engineering? 23 always understood that within the U.S. Army
24 A. Yes. 24 Corps of Engineers there were folks who served
25 Q. And I don't know if this is correct, 25 on the military side, if you will, and then
Page 7 Page 9
1 but let me give it a stab: Also received a 1 there were civilian employees.
2 government and administrations Master's degrees 2 A. Right.
3 from George Washington? 3 Q. How does one get into the military
4 A. Yes. 4 side of the Corps?
5 Q. Is that accurate? 5 A. The military side is almost, not
6 A. Yes. 6 completely, exclusively uniformed personnel of
7 Q. Okay. Are you a licensed civil 7 the U.S. Army who are generally Corps of
8 engineer? 8 Engineers officers -- there might be a
9 A. My license has lapsed. I did get 9 scattering of others -- and they work with the
10 licensed in the state of Louisiana, but it has 10 Corps of Engineer troop units, companies,
11 lapsed now, I'm not paying the fees. Don't 11 battalions, groups, brigades, that are
12 need them. 12 supporting the rest of the Army. They are
13 Q. Okay. Well, we'll discuss that, then. 13 usually doing battlefield support work, what
14 Let's do it this way: I gather then 14 Corps of Engineer people do. And I did that,
15 you were licensed as a civil engineer when you 15 going back to what I did before. But let me
16 were located in the New Orleans office? 16 answer your question first.
17 A. Correct. 17 Then there's another part of the Corps
18 Q. Which was what, '72 to '75? 18 of Engineers in an organization called the U.S.
19 A. Um -- that's approximately right. It 19 Army Corps of Engineers, USACE for short,
20 was, jeez, a while ago. 20 U-S-A-C-E, which is headquartered here in
21 Q. Well, let's not worry about that. 21 Washington, D.C. and has offices scattered
22 A. I think I was '72 to '73, but it was 22 across the world called district offices, like
23 one year. It was about fourteen months. 23 the one we briefly talked about. The district
24 Q. That you were the District Commander? 24 offices are mostly civilian, about 95 percent
25 A. I was Commander of the New Orleans 25 Department of Army civilians. They work for
3 (Pages 6 to 9)
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1 the U.S. Army. In fact, Martin Cohen here at 1 battalions as lieutenant colonels or brigades
2 the table is one of those. And all the way up 2 as colonels, and so forth.
3 through the headquarters here. And the other 3 But also, there's a board that selects
4 5 percent or so are those same uniformed 4 the colonels and sometimes lieutenant colonels
5 offices who spent part of the time with troops, 5 for the smaller districts who or going to
6 part of the time doing other things, Pentagon 6 command those districts. So you don't just get
7 duty, ballistic missile defense in my case, and 7 a plain old assignment, you get selected by a
8 also in the U.S. Army Corps of Engineers, the 8 board and then get assigned after you're board
9 organization that is headquartered here and led 9 selected.
10 by a three-star general called the Chief of 10 Q. I see.
11 Engineers. 11 A. So I had to be board selected to go to
12 So the Chief of Engineers has 12 New Orleans.
13 responsibility to the Army for all those troop 13 Q. Well, when you first were assigned to
14 units, but he doesn't command them, except for 14 the Corps in I think you told me '53.
15 one battalion. But he's got staff 15 A. '53. And I went off the troop duty.
16 responsibility for them all over the Army. But 16 I was over there in January of '54, did troop
17 he commands that organization called the U.S. 17 duty with the division I was with for about a
18 Army Corps of Engineers, with its 42, 45 18 half of a year, and then the other year that I
19 districts, something like that these days. 19 was there -- I was there in Korea for a year
20 Most of those districts have both civil 20 and a half -- was with an advisory group, and I
21 responsibilities, which is water resources 21 was advising Korean military engineer
22 which we're going to talk about. Some of them 22 battalions.
23 have exclusively civil responsibilities, like 23 Q. Now, did that come about because of
24 New Orleans district does. Some have both 24 your engineering background, or did you just
25 military and civil. And by military in the 25 express an interest in this area, or is that
Page 11 Page 13
1 district term, that means doing construction 1 what they told you to do and you did it?
2 for the U.S. Army, sometimes the Air Force, 2 A. Mostly, both ROTC and West Point there
3 sometimes the Navy, and sometimes even other 3 is some element of choice in what branch you go
4 countries as directed by the Pentagon. 4 in. At West Point, if you're at the bottom of
5 Q. I understand. 5 the class you get whatever is left, however,
6 A. That's the military side. 6 which is -- in my day which was infantry. Most
7 Q. So obviously one has to be in the 7 people preferred not to walk to war.
8 military in order to be assigned to the 8 Q. Right.
9 military side of th4e Corps of Engineers, 9 A. But in my day, usually the top portion
10 right? 10 of the class went in the Corps of Engineers,
11 A. Yes. Although occasionally those 11 meaning they selected the Corps of Engineers.
12 battalions out there will borrow a civilian 12 Q. So you selected the Corps.
13 from the USACE to do something specific like 13 A. I selected the Corps of Engineers and
14 going out and checking a dam. Those things 14 thereby went in --
15 happen all the time. The Corps works -- both 15 Q. And so you clearly had an interest in
16 the troop side and the USACE side work 16 engineering from your background in school, et
17 together. 17 cetera, right?
18 Q. I see. So I guess what I'm 18 A. Yes. But we all pretty much took the
19 fundamentally curious about is how does one who 19 same course. And I didn't really get my
20 is in the military get assigned to the U.S. 20 specific engineering until -- and we talked
21 Army Corps of Engineers; is that just merely an 21 about it earlier -- until a few years later
22 assignment like -- 22 when the Army sent me to MIT to get a civil
23 A. Yes. It is an assignment. There is a 23 degree. I also got a nuclear minor, so I
24 specific selection board for certain elements 24 became then competent to move on into the
25 of the U.S. Army, for who is going to command 25 professional ranks. By this time I was a
4 (Pages 10 to 13)
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1 fairly senior lieutenant. 1 New England District?
2 Q. Okay. All right. Now, so then I'm 2 A. No, not at all. In fact, there was a
3 confused. When you came back from Korea -- 3 brigadier general assigned there, and I was
4 A. Yes. 4 still a lowly lieutenant. There were about
5 Q. -- is that when you were a lieutenant? 5 five or six lieutenants, a handful of -- three
6 A. I was still a lieutenant. I was a 6 or four lieutenant colonels and colonels and
7 lieutenant during Korea. As a lieutenant, I 7 one brigadier general in that day. It's
8 went to Boston and was assigned to what is 8 slightly different today, but the same general
9 today called the New England District of the 9 thing goes on.
10 Corps of Engineers which is in Boston. 10 Q. Well, yes, but the folks today don't
11 Q. Okay. 11 have those ranks, do they?
12 A. When I was assigned to it, it was a 12 A. Now, today, the New England District
13 division. But it doesn't really make any 13 is a colonel 's command. And as I earlier
14 difference, we did the same things. 14 said, you have to be selected to be a district
15 Q. All right. What did you do in the New 15 commander before the Army, meaning the Corps of
16 England District office? 16 Engineers and the Army, can assign you to a
17 A. My first job was as a construction 17 district.
18 inspector, meaning the contracts -- the Corps 18 Q. Okay. How long did you stay in Boston
19 of Engineers districts do almost all their work 19 in the New England District?
20 through contracts with the contracting 20 A. Between Boston and Worcester, I was
21 community, whether it's design or construction, 21 there for probably a year and a half, I think.
22 or even some of the operations and maintenance 22 That's rough, but yes, about a year and a half.
23 work that the Corps districts do is done 23 Q. All right. So I guess we're somewhere
24 through contracts. So the Corps of Engineers 24 around '55, '56?
25 civilians and military that are there are 25 A. Yes. '55, '56.
Page 15 Page 17
1 deeply involved with overseeing the contracts. 1 Q. Where did you move to from Boston?
2 Both the awarding of them, but also overseeing 2 A. I stayed in Boston and was assigned to
3 them to make sure they do the right thing. So 3 be a student at MIT.
4 I was a construction inspector part of the time 4 Q. That's when you did the --
5 in Worcester, part of the time in Boston, 5 A. I did my advanced work as a civil and
6 overseeing contracts that were cleaning up 6 a nuclear engineer, yes.
7 after a huge disaster which was a tremendous 7 Q. Okay. And when you completed that
8 flood that had hit New England and parts of New 8 work, where did they send you?
9 York, and we were doing the cleanup work that 9 A. Um -- I went to Fort Belvoir, which is
10 the federal government does after a disaster 10 right close to Washington, D.C. here, which was
11 like that. 11 then the home of both the engineers school and
12 Oh, and then after that, the temporary 12 the engineer research and development
13 folks that had been lent, in my case there was 13 laboratory.
14 a colonel that was lent by the Kansas City 14 Q. How long there?
15 District, he was called the area engineer at 15 A. Um -- one or two years. Somewhere in
16 Worcester, and then all those temporary folks 16 that arena.
17 went back home. They went back to school, they 17 Q. And what were you doing?
18 went back to their districts -- their normal 18 A. First I was working on nuclear weapons
19 districts, and so the handful of lieutenants 19 for a few months, and then I was assigned to --
20 that was left took over their jobs. So I 20 as the head of the camp sentry office. It was
21 replaced a colonel as the area engineer. 21 a project building an under snow camp out in
22 Q. Okay. 22 the middle of the Greenland icecap, and I was
23 A. And oversaw the same contracts that 23 in charge of all of the design for that, except
24 he'd been overseeing. 24 for the nuclear power plant that went out there
25 Q. So you were the senior engineer at the 25 to power it. I was not responsible for that
5 (Pages 14 to 17)
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1 part. But all the barracks, the living 1 Q. Okay. And what did you do in Germany?
2 conditions, the water supply, the sewerage and 2 A. A year of troop duty again, with an
3 electricity and power and heat and all that, it 3 infantry division facing the Ruskies, who were
4 was my responsibility for designing that. And 4 then the bad guys, across the divide, and then
5 then I went out there for a couple of trips to 5 a year at the division headquarters as a staff
6 help start getting it built under the snow in 6 officer, specifically aide-de-camp to the
7 Greenland. That was my main job after the camp 7 commanding general. That's the guy that helps
8 sentry project office during my time here. 8 the general to remember where he has to go
9 MR. STONE: 9 next.
10 Sir, I would just caution you 10 And then the last year as the
11 that if there was anything that you 11 operations officer -- actually an infantry
12 were working on nuclear wise that was 12 job -- operations officer of a mechanized
13 secret or in any way protected at that 13 infantry brigade.
14 time, it might still be so I would ask 14 Q. We're about 1960?
15 that you not speak to any of that. 15 A. Now we're in the early sixties.
16 MR. BRUNO: 16 Q. Okay.
17 I'm certain that the general 17 A. Yes.
18 knows -- 18 Q. All right. From Germany, then?
19 THE WITNESS: 19 A. Then I went to Fort Leavenworth,
20 The general has forgotten it all. 20 Kansas. By this time I was a major and I was
21 EXAMINATION BY MR. BRUNO: 21 assigned there for the next level of schooling
22 Q. I don't suspect you need to be 22 that the Army sent me to, which was a full year
23 reminded about any need for secrecy, sir, but 23 at the Command and General Staff College.
24 in any case of course we'll respect counsel 's 24 That's not engineer, that's all branches. Now
25 admonishment. Particularly something built in 25 they're preparing you for jobs that are beyond
Page 19 Page 21
1 1958. Because if you guys are still using that 1 branch assignments, too.
2 today then I have a problem. 2 Q. Uh-huh. Well, it appears to me that
3 Okay. So, from there where did you 3 you were on a track for promotion from early on
4 go, sir? 4 in your career.
5 A. I went to -- I was assigned to school 5 A. Yeah, but I was pretty much with my
6 there. This is my second schooling at the 6 colleagues. I was not running ahead of the
7 engineers school, called the advanced course -- 7 pack, and I certainly wasn't behind it, I was
8 the first one that I mentioned right after I 8 with the pack.
9 graduated from West Point was called the basic 9 Q. I see. Okay.
10 course -- to learn more about what engineer 10 All right. So after that assignment,
11 officers are supposed to know as they continue 11 what was next?
12 to rise. And that sort of taught me all the 12 A. Let's see. Um -- I went to West Point
13 things I was supposed to know up through 13 to join the faculty there. And we had
14 lieutenant colonel and colonel. 14 mentioned -- you had mentioned earlier my first
15 That's the way the Army still works 15 George Washington degree, which was in
16 today -- 16 government. I had gotten that while I was at
17 Q. Uh-huh. 17 Fort Belvoir at night.
18 A. -- pretty much. And so I went to that 18 Q. Uh-huh.
19 school, and then was assigned to Germany. 19 A. And I did that so that I could go to
20 By this time I -- while I was up in 20 West Point and teach government and politics.
21 the icecap I got promoted to captain, so by 21 I didn't want to teach engineering at West
22 this time I was a captain. 22 Point, I wanted to expand, A; B, I also knew
23 Q. Okay. All right. For how long were 23 that senior Corps of Engineers officers
24 you in Germany? 24 probably need the political and government kind
25 A. Three years. 25 of work more than they need the engineering
6 (Pages 18 to 21)
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1 because you're surrounded by engineers. 1 which is the top level of colleges that the --
2 Q. Right. 2 the industrial college is all branches. And so
3 A. So those were my motives. So I taught 3 I went there with Navy officers and Air Force
4 for three years there, political science and 4 officers, Marines and foreign service officers,
5 government. 5 right here at Fort McNair, for a year.
6 Q. All right. 6 Q. And then where did you go next?
7 A. Leaving the military academy, by this 7 A. Um -- I was assigned to -- that's when
8 time I was a lieutenant colonel, and I was an 8 I went to New Orleans.
9 associate professor in what's called the 9 Q. That was in '72.
10 department of social sciences. Most 10 A. That would have been -- I think '72.
11 universities would say political science. 11 I might be wrong by a year, but yes.
12 Q. Okay. All right. And from there. 12 Q. Was New Orleans the first assignment
13 A. And from there, I was assigned to 13 that puts you directly -- well, let's see. I
14 Korea -- excuse me, to Vietnam. I'm sorry. To 14 guess not. You had that experience in Boston,
15 Vietnam. We were then fighting in Vietnam, and 15 so you had done some work with a district
16 I was and signed again to an infantry division, 16 office.
17 which was my lot in life when I went to troops, 17 A. Right. Yes. And also with the Office
18 and I commanded the infantry divisions called 18 of Emergency Preparedness and other things, I
19 the combat engineering battalion which directly 19 had a pretty good acquaintance with the
20 supported the fighting. Did that for a year. 20 district family of the Corps of Engineers.
21 Q. One year? 21 Q. All right. So, you walked into the
22 A. Yep. 22 New Orleans District office as the Commander?
23 Q. All right. When you returned from 23 A. Yes. Immediately took over when I got
24 Vietnam, where did you go? 24 there.
25 A. Um -- you'd think the more recent ones 25 Q. Okay. All right. And the structure
Page 23 Page 25
1 would come quicker, but they don't. Sorry I 1 of the office -- we don't have a -- I don't
2 didn't bring a résumé along. It would help me. 2 have one of these organizational charts for
3 Q. Yeah. And I have some things, but 3 '72, but I just want to sort of get a sense of
4 they're not -- I have the website materials, 4 how the office was organized when you were in
5 which obviously are at least mistaken with 5 charge.
6 regard to Cornell, but this is sort of 6 A. Sure. Okay.
7 incomplete. 7 Q. What we have as a reference point, to
8 A. I came back and I joined the Executive 8 be fair you to, is a chart that was in use when
9 Office of the President in a small office 9 Colonel Richard Wagenaar was the commander in
10 called -- it wasn't small -- a relatively small 10 2005.
11 office, although it was U.S. wide, called the 11 A. Okay.
12 Office of Emergency Preparedness. Today, that 12 Q. And the way this seems to have --
13 office has been renamed and changed a lot, but 13 A. It's pretty much -- pretty much that's
14 it's the same office and is now called FEMA. 14 what I took over.
15 Q. Yeah. 15 Q. Because they have an engineering
16 A. And I was the essentially the chief of 16 division --
17 staff to the director, the boss of OEP. 17 A. Yes.
18 Q. How long did you serve in that role? 18 Q. -- they have a real estate division --
19 A. About a year, if I remember right, it 19 A. Yes.
20 could have been a little bit longer, until I 20 Q. -- a contracting division; a planning,
21 was sent off to school again. 21 programs and project management division, which
22 Q. Okay. And where did you go to school 22 we have learned is a new title --
23 this time? 23 A. Yes.
24 A. And this time, we talked about it 24 Q. It was --
25 earlier, I went to the industrial college, 25 A. But it was then -- when I went down
7 (Pages 22 to 25)
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1 there, I was the first one to have a planning 1 A. That is correct.
2 division. It was invented, and in fact I think 2 Q. And Ohio River Division, obviously,
3 it was the first district or one of the first 3 is -- it's not a district office.
4 two or three districts to have a planning 4 A. It has districts under it.
5 division. Before that, that had been 5 Q. Under it. And if one were to compare
6 underneath engineering. But I went and I had a 6 the Ohio River Division to the division which
7 planning division, and it was brand new for the 7 contains the New Orleans District office, that
8 Corps of Engineers at that time. 8 would be what division?
9 Q. I see. And an operations division? 9 A. That's the Mississippi -- it was then
10 A. Yes. A construction division should 10 called the Lower Mississippi Valley Division.
11 show there. 11 It is now the Mississippi Valley Division.
12 Q. And there's a construction division. 12 Same place, it's in Vicksburg, Mississippi, and
13 And that's all the divisions that are 13 it also has -- it might have more than four
14 shown here. 14 districts now, when they did some reorganizing.
15 A. Well, there are some smaller offices. 15 But in my day it had four districts. The most
16 Did you mention the office of counsel? Small 16 southernmost was mine, which was New Orleans.
17 but important. 17 Q. All right. Now, again this may be
18 Q. Well, they show that on a different 18 wrong, General, but it's indicating about three
19 page. There is an office of counsel, there's 19 years in that position. Is that --
20 an internal review office, there's a safety, 20 A. I was three directors, yes. That's
21 security and occupational health office, 21 correct.
22 there's the public affairs office. But the 22 Q. Three years in Ohio.
23 operating divisions -- 23 A. Yes.
24 A. Yes. 24 Q. Okay. All right. And then you moved
25 Q. -- that is, the folks who were 25 from the Ohio River Division to the position of
Page 27 Page 29
1 primarily doing the work of the district 1 the Director of Civil Works?
2 office -- 2 A. No. I was moved from Cincinnati,
3 A. Right. 3 Ohio, to Heidelberg, Germany, and my title was
4 Q. -- were the engineering, the real 4 Department Chief of Staff (Engineer), of the
5 estate, those guys -- 5 office that's called USAREUR (U.S. Army in
6 A. Yes. 6 Europe).
7 Q. -- and contracting. 7 Q. How long there?
8 A. That's fair. 8 A. A year.
9 Q. All right. Now, and you were there -- 9 Q. One year. Okay.
10 now, I obviously have this wrong. This 10 And what did you do in Germany?
11 information that I have is showing that you 11 A. I was in charge of all engineering
12 were there for more than one year, but you were 12 matters as a staff officer that the Army said
13 there only for one year. 13 grace over, telling the -- for example, there
14 A. Any about fourteen months, right. 14 is an engineer division, like Ohio and like
15 Q. Fourteen months. 15 Vicksburg was, making sure that they, through
16 A. Yes. 16 their district level work, they did the
17 Q. All right. And then from there, you 17 contracts -- because we were the customer. We
18 went to -- 18 made sure that the Corps of Engineers did their
19 (Charles Lanier joined the deposition 19 job for us. And the engineer was the guy that
20 in progress via telephone.) 20 watched over that.
21 EXAMINATION BY MR. BRUNO: 21 Q. When you returned to the United States
22 Q. Did you move from the New Orleans 22 from Germany, is that when you moved into the
23 District to the Ohio River Division? 23 Director of Civil Works?
24 A. Yes. 24 A. Director of Civil Works, correct.
25 Q. At least that's accurate. 25 Q. And that was about '79 to '82?
8 (Pages 26 to 29)
Page 30 Page 32
1 A. Sounds right. 1 ever since.
2 Q. Okay. About three years? 2 Q. Okay. And you are currently employed
3 A. In fact, that is exactly right. Yes. 3 by what firm?
4 Three years. 4 A. Whoever I get as a consultant. I'm an
5 Q. Hopefully some of this information is 5 independent consultant. I work for various
6 accurate. 6 firms.
7 A. Yeah. You got that right. 7 Q. I'm sorry. So you have your own
8 Q. What did you do, sir, as the Director 8 consulting firm.
9 of Civil Works? 9 A. I do.
10 A. Civil works is the term that USACE, 10 Q. And are you its sole employee?
11 the Army Corps of Engineers, uses to mean the 11 A. I'm the sole employee. Occasionally
12 water resource projects of the Corps, as 12 I'll pick up someone for a particular project
13 opposed to the military construction, et 13 but, yes.
14 cetera, of the Corps of Engineers. So I was in 14 Q. All right. Now, General, you are
15 charge of all the water resources for the Corps 15 aware of the litigation that's pending in the
16 of Engineers underneath the Chief of Engineers. 16 New Orleans Courts regarding the U.S. Army
17 Q. And then you were promoted to become 17 Corps of Engineers, are you not?
18 Deputy Chief of the Engineers in '82? 18 A. Generally.
19 A. Well, I considered it a demotion, but 19 Q. Okay. What do you understand to be
20 yes. 20 the subject of whatever litigation that you are
21 Q. Okay. Sorry. 21 aware of?
22 A. It is -- 22 MR. STONE:
23 Q. One never knows these things. 23 Objection.
24 A. It is still a two star job, but it's 24 EXAMINATION BY MR. BRUNO:
25 the guy that stands to the right of the Chief 25 Q. Oh. He's going to object from time
Page 31 Page 33
1 of Engineers and fills in for him when he's 1 the time; otherwise, they're going to fire him.
2 gone. It's probably one of the most boring 2 He --
3 jobs I had. 3 A. I he objects I'll shut up.
4 Q. Well, it obviously groomed you so that 4 Q. Well, that's not the way it works.
5 you could then become the chief in '84. 5 You are required to answer the question even
6 A. Right. 6 though there is an objection lodged.
7 Q. And you were the chief for about four 7 The purpose of him making the
8 years? 8 objection is so that when we use this in
9 A. For exactly four years. Almost 9 Court --
10 exactly four years, yes. 10 A. Uh-huh.
11 Q. All right. And then you left the 11 Q. -- he will ask the judge to strike the
12 Corps in '88? 12 question or the answer, depending upon what the
13 A. I did. 13 objection is.
14 Q. All right. 14 A. Okay.
15 A. By retiring from the Army. 15 Q. So he's preserving his right to
16 Q. And I don't really want to walk 16 object --
17 through all the many years that have passed 17 A. Okay.
18 since '88, but can you give us a sense of what 18 Q. -- rather than indicating to you not
19 you've been doing since you retired. 19 to answer.
20 A. Primarily -- well, I ran a couple of 20 A. Okay. Say the question again.
21 companies, one in Delaware for a couple of 21 Q. Is that fair?
22 years, one in Charlotte for three years, that 22 MR. STONE:
23 did engineering and environmental work. I was 23 That's fair.
24 the CEO of each of those. And then I came back 24 A. Say the question again, please.
25 here to Washington and I've been a consultant 25 EXAMINATION BY MR. BRUNO:
9 (Pages 30 to 33)
Page 34 Page 36
1 Q. I said, now, General, you're aware of 1 how, sir, would you characterize the
2 the litigation that's pending in the New 2 relationship between the Congress of the United
3 Orleans Courts regarding the U.S. Army Corps of 3 States and the United States Army Corps of
4 Engineers -- 4 Engineers with regard to a project like the
5 A. And I said generally. 5 MRGO, as we call it?
6 Q. And you said, generally. And I said, 6 A. I'll answer that a couple of ways;
7 okay, may I learn what is your understanding of 7 one --
8 that? 8 Q. All right.
9 MR. STONE: 9 A. -- the Congress passes the laws, those
10 Objection. 10 are usually authorization laws backed up by
11 MR. BRUNO: 11 appropriations legislation that direct the
12 And Richard registered an 12 federal government to do certain things. Many
13 objection. 13 of those are through the Corps of Engineers and
14 A. I understand there are -- not only the 14 that's the part you're talking about. But
15 Corps but I thought I understood there were 15 the -- the second part is, the relationship of
16 other federal agencies, levee boards and so 16 the Corps to the Congress is the same as other
17 forth, also involved in it. I'm not clear at 17 federal agencies, when a congressman, senator,
18 all in what way they are involved, and I've 18 representative, or even the staffs of those
19 made a point of not getting into it. So I 19 people, calls a federal employee, it might be a
20 really don't know. 20 Corps of Engineers guy, person, there's an
21 EXAMINATION BY MR. BRUNO: 21 expectation that he'll get -- he, they, will
22 Q. All right. Fine. So, all right, then 22 get listened to and answers will be given
23 you can't know what particular structures or 23 truthfully. That's the way I would put it.
24 geographic locations are the subject of these 24 The Corps of Engineers does a lot of
25 lawsuits. 25 that, but so do or federal agencies. I don't
Page 35 Page 37
1 A. I know generally some of the things 1 think there is anything specific to the Corps.
2 that are at issue. I have talked to both Corps 2 Q. Yes. There are certainly a variety of
3 of Engineers -- I've talked to counsel, both 3 agencies that may well find themselves in a
4 Corps of Engineers and DOJ. 4 similar circumstances, but here's what is what
5 Q. All right. Well, to cut to it, you 5 causes me concern: We know, for example, that
6 know that one of the things that we are 6 in the case of the MRGO the Congress asked the
7 primarily interested in is a project which has 7 Corps to tell it how to build a channel to
8 been variously referred to as the Mississippi 8 connect the Gulf of Mexico to the Port of New
9 River Gulf Outlet. 9 Orleans, generally. Isn't that true?
10 Are you familiar with that project? 10 A. Far as I know, yeah. Most of that
11 A. Yes. 11 happened before I got there, but yes.
12 Q. Okay. Now, you have, in the course of 12 Q. No, I understand. I didn't mean to
13 answering some of my questions, talked about 13 suggest that you presided over that.
14 the fact that sometimes the Corps is a 14 A. Yes.
15 customer, to use those words. I'm just 15 Q. Again, I'm just trying to get a sense
16 wondering if in the context of a project like 16 of this relationship. So in terms of where to
17 the Mississippi River Gulf Outlet, is it fair 17 put it, how big to make it, how deep to make
18 for me to characterize the United States Army 18 it, isn't the Congress relaying on the Corps
19 Corps of Engineers as a consulting engineer to 19 for its technical expertise? Or does the
20 the Congress of the United States? 20 Congress, based upon all these many years of
21 A. Um -- I don't think that's fair. I've 21 your experience in working with the Congress,
22 never seen it quite like that, no. 22 have access to some other technical expertise
23 Q. All right. What, then, is the role of 23 in order to guide it in deciding whether to
24 the United States Army Corps of Engineers -- or 24 build or not build a channel like this MRGO?
25 perhaps I should better ask it, what, sir -- 25 MR. STONE:
10 (Pages 34 to 37)
Page 38 Page 40
1 Objection. Compound. Witness 1 it.
2 may not have personal knowledge. 2 Q. Of course not. And so -- all right.
3 A. And I really don't know with respect 3 I only, in fairness to you, wanted you to see
4 to MRGO exactly how that worked. It sometimes 4 it before I attempted to ask you any questions.
5 works differently from project to project, but 5 But this document is entitled
6 yes, the Corps of Engineers does, when they're 6 engineering and design, engineering and design
7 asked questions -- well, first -- let me go 7 for civil works projects dated 31 August 1999.
8 back. The part that we're missing here is the 8 Recognize obviously drafted after you left and
9 fact that usually the Congress will come to the 9 retired from the Corps.
10 Corps in various ways. First will be a 10 But it talks about a process. And I'm
11 direction to do a plan -- planning a project. 11 just curious to know if the process described
12 And that's where the Corps puts together its 12 here has any relationship with your
13 technical expertise, maybe get a contractor to 13 understanding about how these things come into
14 help it, to provide the planning for the 14 play. And it talks about, for example, a
15 project in compliance with whatever the 15 feasibility report. Is that a term or a
16 direction is from the Congress in the law. 16 phrase --
17 Then later, the next step, if the 17 A. Yes.
18 Congress agrees or looks at it or decides, then 18 Q. -- that has some meaning to you?
19 they'll direct the Corps to go ahead -- direct 19 A. Yes. That's that first element that I
20 the federal government to go ahead and build 20 talked about.
21 it, and the Corps is usually the one that's -- 21 Q. Right. And that's why I'm pulling
22 almost always the one that does water resource 22 this out, General, because I wanted to see if I
23 projects that we're talking about. So that's 23 could reference this to some document. And in
24 part two. 24 fact, back when you were working in the Corps,
25 Q. All right. 25 there were documents, maybe not similar to
Page 39 Page 41
1 A. And then again, the third part, and 1 this, but documents that described the process
2 it's all three of these are important, and they 2 by which the Corps would design projects for
3 go one by one, usually take years if not 3 presentation to the Congress.
4 decades to get there, the third part is that 4 A. Sure.
5 then the appropriations come. 5 Q. Okay. Now, so I'm gathering from your
6 Q. Well, there's a pretty specific 6 response that the feasibility -- well, let me
7 process that describes what you just told me. 7 ask you this first question: What is the
8 A. Uh-huh. 8 proper description of this phase, is it a
9 Q. And in fact I don't know if it was 9 feasibility report, a feasibility
10 written down when you were there, but at 10 investigation? You see what I'm driving at?
11 least -- let me show you this document and see 11 How should I characterize this process?
12 if you've ever seen anything like this. 12 A. The feasibility report, probably the
13 (Tendering.) After you look at it then we'll 13 easiest way would be the feasibility report
14 identified for the record. 14 system will come out with a direction from the
15 MR. STONE: 15 Congress, the Corps will scratch its head and
16 So the only question you have 16 come up with what it thinks is responsive to
17 pending is has he seen this document 17 what the Congress is looking for, the answers
18 or anything like it. 18 that they're looking for, and then will go back
19 MR. BRUNO: 19 with the feasibility report which gets blessed
20 That's right. Otherwise you'd 20 up the system, meaning the Corps of Engineers
21 object and say it's compound. 21 system, and provided to the Congress.
22 A. I haven't seen this. It's a 1999 -- 22 Q. All right. Is it fair for me to
23 EXAMINATION BY MR. BRUNO: 23 characterize the process in this way: Congress
24 Q. Right. 24 says to the Corps, we're thinking about
25 A. -- document, and nor have I studied 25 building an X, I want you to go study it, tell
11 (Pages 38 to 41)
Page 42 Page 44
1 me if it's feasible, can we do this. 1 Q. I'm not trying to sneak up on you and
2 Is that fair? 2 suggest that you were there when you weren't.
3 A. That's parts of it. Yes. 3 A. All right.
4 Q. All right. What else? What's the 4 Q. I'm not going to do that to you. I
5 other part? 5 want you to please be comfortable with that.
6 A. The other expectation is that there 6 I'm trying to learn generally -- you
7 will be something in the feasibility report 7 were the commander, and that's why I'm asking
8 that will address the benefit/cost ratio. Does 8 you these questions. I'm trying to get the
9 the taxpayer get its money's worth, is how 9 perspective, frankly, of the guy who was in
10 Heiberg puts it? 10 charge. Okay? And that's why I'm asking you
11 Q. Now, would that include an evaluation 11 these questions and not somebody who's, you
12 of whether or not whatever it is that's 12 know, a clerk at the New Orleans District
13 contemplated by the Congress might cause damage 13 office.
14 to other folks? 14 A. Okay.
15 A. Yeah. 15 MR. STONE:
16 Q. I mean, clearly if you're doing a 16 That's very expensive. These
17 cost-benefit analysis, at least in my world, 17 transcripts are very expensive, Joe.
18 I'm just trying to see if the way I 18 Just ask him the questions.
19 characterize it would be reasonable for you, 19 MR. BRUNO:
20 and that is, when you do something like 20 I'm sorry. I don't understand.
21 building a house, which is probably an 21 MR. STONE:
22 experience a lot of folks have had, you have in 22 Just going on like that on the
23 mind a picture of what you might like to have, 23 record, you're creating a record here
24 but there are constraints like can I afford it, 24 that we're all having to pay for.
25 how's large is my lot, how big a house can I 25 Just ask him the questions. I would
Page 43 Page 45
1 put on the lot that I've got, what's the best 1 appreciate it.
2 way to, you know, get the good views, and 2 MR. BRUNO:
3 whether or not when I'm doing this house am I 3 All right. Well, I'm just trying
4 going to create for myself some kind of a 4 to -- I appreciate that, too.
5 liability, perhaps through pile driving or, you 5 EXAMINATION BY MR. BRUNO:
6 know, blocking my neighbor's views, things like 6 Q. But I just want the general to
7 that. So I'm curious to know whether in your 7 understand where I'm coming from so that you
8 view the cost-benefit analysis would include a 8 won't think I'm trying to trick you or pull
9 consideration of the potential for creating a 9 some wool over your eyes. It's not what's
10 liability in building this thing that may be 10 going on here at all.
11 contemplated by the Congress. 11 And I really am anxious to understand
12 MR. STONE: 12 if cost-benefit analysis -- I mean, would you
13 Object to form. 13 agree with me that if you build something that
14 A. You know, and I've never really 14 creates a liability, that's a cost?
15 thought of it that way so I have difficulty 15 A. I don't use the term cost quite that
16 answering that. I'm not sure. 16 way. For example, environmental aspects, it's
17 EXAMINATION BY MR. BRUNO: 17 a cost -- I guess you could use that. That's
18 Q. All right. Well, would there be -- I 18 stretching the word cost, though. And
19 mean, you've certainly participated in either 19 environmental liability is something that has
20 drafting or reviewing feasibility reports. 20 to do with the environment, and that's
21 A. Yes. 21 certainly -- that is a part of it, if that's
22 Q. Okay. 22 what you're asking.
23 A. But not that one. 23 Q. Right. Well, maybe my terms are too
24 Q. Oh, I know. We got that, General. 24 broad. Does the Corps have any interest at all
25 A. Okay. 25 when it conducts a feasibility study in
12 (Pages 42 to 45)
Page 46 Page 48
1 assessing whether or not the proposed project 1 Q. All right. So that -- is that all
2 is going to damage the environment? 2 feasibility reports or are they -- does that
3 A. Yes. 3 process -- is that process a process which is
4 Q. Let's ask that it way. 4 used based upon the size of the project?
5 A. Yes. 5 A. Um -- far as I can -- in general, it's
6 Q. So the Corps is interested in whether 6 all of them, as far as I know.
7 or not the particular project may damage the 7 Q. All of them. All right. So all
8 environment. 8 projects go through not only the district
9 A. Yes. 9 office, but it goes through regional, it goes
10 Q. Sure. Okay. All right. That's fair. 10 through the commander, and it goes to the
11 Now, it's one thing to have an interest, it's 11 Director of the Civil works. But by the
12 quite another to be sensitive to whether or not 12 time --
13 the project may damage the environment. Did 13 A. Not Director of Civil Works. Director
14 the Corps in the course of doing feasibility 14 of Civil Works works for the commander. It
15 reports ascertain -- or consider the potential 15 goes over to the political process in the
16 damage to the environment and make -- and 16 Pentagon, and that's the Assistant Secretary of
17 include that into the report so that the 17 the Army for Civil Works. He's a political
18 Congress would weigh that in considering 18 appointee of whoever the sitting president is.
19 whether to go forward after review of the 19 Q. Okay. Bottom line, though, is, by the
20 feasibility study? 20 time it reaches the Assistant Secretary of the
21 A. Talking about in general the 21 Army for Civil Works, what we have is the
22 feasibility report, yes, that's part of the 22 United States Army Corps of Engineers report on
23 process. The way you describe it, exactly how 23 the feasibility of a particular project.
24 that happened with respect to MRGO -- 24 A. Yes.
25 Q. You don't know. 25 Q. And that report will have considered
Page 47 Page 49
1 A. -- I don't know. 1 the potential for damage to the environment.
2 Q. All right. That's fine. 2 A. Yes.
3 A. I can't tell you. 3 Q. So that -- and let me ask you this:
4 Q. Now, what is the next phase? How does 4 Isn't it a fact that the reason why that's a
5 a project go from feasibility to -- let me ask 5 consideration in the feasibility report is so
6 it this way, General: What is the next level, 6 that the Congress can make a reasoned and
7 first? What's the right way to describe it? 7 intelligent judgment about whether to proceed
8 A. Well, for one, the Corps itself, first 8 to the next level?
9 Vicksburg in the case of New Orleans, and then 9 A. Yes.
10 the Corps headquarters in the case of the 10 Q. All right, sir. Would you agree with
11 headquarters of the Corps here in Washington, 11 me that if, for example -- I'm not saying it's
12 takes a look at it, and might agree or not 12 ever happened, but if the ball got dropped and
13 agree or have conversations with the district 13 the effect and the analysis of the effect on
14 staff, division staff, and so forth. So it's 14 the environment were just left out, then the
15 not done in a vacuum. The district just 15 Congress would not have a fair amount of
16 doesn't send it to the Congress. It doesn't 16 information with which to determine to move to
17 happen that way. 17 the next level. Wouldn't you agree?
18 Q. Right. 18 MR. STONE:
19 A. In fact, it ultimately goes through 19 Objection.
20 the Assistant Secretary of the Army for Civil 20 A. Sure. But I do agree with that.
21 Works, the political appointee in the Pentagon 21 EXAMINATION BY MR. BRUNO:
22 who overseas Corps of Engineers water resources 22 Q. Thank you. Now, what I had asked you
23 work. So I don't want to forget the fact that 23 earlier, and forgive me, I want to get a sense
24 all those manage the feasibility report as it 24 of the words so I can speed it along, despite
25 goes up. They might do some things to it. 25 counsel suggesting I'm delaying. I think if
13 (Pages 46 to 49)
Page 50 Page 52
1 we've got the right language, you and I, we'll 1 of the numbers that appear on these
2 move more quickly. 2 documents. The first document is
3 What is the way to describe the next 3 entitled --
4 level of the approval process? Feasibility was 4 MR. STONE:
5 one. What's the next level? 5 How about I just photocopy the
6 A. Next level would require a 6 first two or three pages and give it
7 Congressional action to authorize the project, 7 to the court reporter at the end of
8 meaning to authorize, presumably, the building 8 this, and he can attach that as an
9 of it if it's a construction project, which 9 exhibit.
10 most of them are. 10 MR. BRUNO:
11 Q. I don't mean to suggest that you're 11 I have no problem with that,
12 wrong, but I'm -- again, I'm looking at this 12 Richard. Let's to it later.
13 thing here, which is a 1999 document, but this 13 MR. STONE:
14 seems to describe a design phase before 14 Let's do it later. We'll do it
15 authorization. 15 off the record afterwards.
16 And so if this document is accurate, 16 MR. BRUNO:
17 does that represent a change from the way it 17 Sure.
18 was done, as you describe it, feasibility to 18 A. The role of the Board of Engineers,
19 authorization? 19 which we haven't discussed, part of the system,
20 A. Feasibility does not have the design 20 though, just to get away from our earlier
21 it. The feasibility report is only answering 21 conversations. This is mostly Board of
22 the questions that we discussed before. 22 Engineers. Well, I'm certainly not familiar
23 Q. Understood. 23 with this one.
24 A. The design goes next after the project 24 EXAMINATION BY MR. BRUNO:
25 is authorized. 25 Q. Sure, and I didn't --
Page 51 Page 53
1 Q. Okay. So the project is authorized by 1 A. When I was district engineer I
2 the Congress, and the authorization tells the 2 probably was, but that was ten million years
3 United States Corps of Engineers to do 3 ago.
4 something, right? 4 Q. And the only reason why I gave it to
5 A. Yes. 5 you was frankly only for the cover page. It
6 Q. Now, I have -- this is only for an 6 talks about a letter.
7 example. All right? I've got the '65 Lake 7 A. Yes.
8 Pontchartrain and vicinity authorization, and 8 Q. And I know that the authorizing
9 it refers to a letter from the Secretary of the 9 legislation says, okay, Corps, you're
10 Army which describes what it is that the Corps 10 authorized to build what's in that letter.
11 has developed to -- for the Congress to assess 11 A. Yes.
12 feasibility. I'll let you look at it. This is 12 Q. And what I was going to ask you, sir,
13 for frame of reference only. I know you didn't 13 was whether or not generally that's the way the
14 write it, I know you didn't -- 14 Congress does its authorization; the Corps
15 MR. STONE: 15 presents a letter --
16 For these two documents that 16 A. Yes.
17 you're dealing with, the one that 17 Q. -- and in this letter there's a
18 you've just been talking about and 18 description of what it says is feasible --
19 this one, can you give us a set of 19 A. Right.
20 Bates numbers for a reference so that 20 Q. -- and then the Corps -- I'm sorry,
21 we know how to find these later if 21 the Congress, if it says go ahead, tells the
22 you're not going to attach them? 22 Corps, okay, build what's in the letter.
23 MR. BRUNO: 23 A. The only thing you're missing in
24 Well, there are no Bates, 24 saying that, and it shows in here, is the role
25 Richard, but I'm happy to give you all 25 of the Secretary of the Army. And I talked
14 (Pages 50 to 53)
Page 54 Page 56
1 about the man actually -- the person actually 1 authorization bill.
2 handling that is the Assistant Secretary for 2 EXAMINATION BY MR. BRUNO:
3 Civil Works. 3 Q. Okay.
4 Q. All right. And I want to explain that 4 A. Now, the authorization bill itself
5 with you, but let me just finish this brief 5 might have other things in it.
6 line. 6 Q. I understand. In other words, what
7 A. But that's an extremely important part 7 you're saying there is, not only does the
8 of the process. 8 Congress have to approve the what, it's got to
9 Q. And that's why we're going to go back 9 write a check.
10 to it and I'm going to let you fully explain it 10 A. Well, that's the third part of the
11 to me. But the reason I'm asking this question 11 process that I discussed earlier. First comes
12 is, if I'm going to -- as a citizen, want the 12 the authorization.
13 know what has been authorized, what are you 13 Q. Okay.
14 going to build, Corps -- 14 A. And that's not the same as writing the
15 A. Uh-huh. 15 check. That's called the appropriations part
16 Q. -- is it fair for me to conclude that 16 of the process. Different committees --
17 the what is embodied in the letter that's 17 Q. Of course.
18 presented and approved by the Congress? 18 A. -- so forth.
19 MR. STONE: 19 Q. All right. So the authorization then
20 Objection. That calls for a 20 says, I direct to you go build this thing.
21 legal conclusion. 21 A. Right. But no money comes with it --
22 MR. BRUNO: 22 Q. No money.
23 I don't think it does, but. 23 A. -- so the Corps can't do anything yet.
24 EXAMINATION BY MR. BRUNO: 24 Q. Precisely. But in terms of simply
25 Q. I'm Joe Citizen, just wants to know 25 nothing more or less than understanding what it
Page 55 Page 57
1 what you're building. I don't think that's a 1 is that the Corps is authorized to do, it's in
2 legal conclusion at all. 2 the letter. Right?
3 MR. STONE: 3 A. Yes.
4 Well, actually Joe Citizen would 4 Q. All right. Now, before we go a step
5 read it, and then he would know 5 further, I would like or for you to explain to
6 whether the Corps was granted any 6 me the point that you said a moment ago was
7 authority to deviate in any way from 7 extremely important. And you gave me a
8 that, so -- 8 reference with not a whole lot more. You said
9 MR. BRUNO: 9 the Secretary of the Army, and I think I also
10 Then obviously it's not a legal 10 heard you say the board? Did you want to
11 conclusion, then, based upon what you 11 explain the role of those two entities?
12 just said. And that why I'm asking 12 A. Sure.
13 the question. 13 Q. And if you would, please do.
14 MR. STONE: 14 A. There was, at the time, a Board of
15 But you're asking the witness for 15 Engineers for Rivers and Harbors. The system
16 a legal conclusion. 16 is a little bit different now, and I can't
17 MR. BRUNO: 17 really address it because it happened after I
18 I'm not asking the witness for a 18 left. But the Board of Engineers for River and
19 legal conclusion. I'm asking the 19 Harbors consists of several of the generals of
20 witness, as a former Commander of the 20 the Corps from around the divisions that we've
21 U.S. Army Corps of Engineers, if the 21 spoken of earlier that make a report to the
22 letter which is approved by the 22 chief, that eventually goes -- that's what most
23 Congress is what it is that the Corps 23 of that is, the document you handed me, is the
24 is authorized to do. 24 report of the board, if I understood that
25 A. If the Congress then passes a 25 right, but it's the one that goes to the
15 (Pages 54 to 57)
Page 58 Page 60
1 Secretary of the Army, who then, through his 1 Just because counsel says the word legal,
2 Assistant Secretary for Civil Works, must do 2 that's his view --
3 their maneuvering in the politics of the world. 3 A. No.
4 And this is an extremely important part of it. 4 Q. -- that's not my view. I'm not asking
5 It involves the Office of Management and 5 for any legal anything. I'm asking for your
6 Budget, it involves the Executive Office of the 6 opinion as the Commander of the U United States
7 President. Ultimately, whatever goes to the 7 Army Corps of Engineers.
8 hill goes through the White House or the White 8 A. Along the lines both above the
9 House system. And so there's politics in those 9 commander, being the Army, the Office of
10 from the Army on forward. 10 Management and Budget, the White House, before
11 Q. Uh-huh. 11 it goes over, it can be jiggered.
12 A. And don't forget that. That can be -- 12 Q. Absolutely.
13 that can adjust the project, or it might even 13 A. Jiggered usually means send it back
14 turn off the project. 14 for improvements. That's the way it normally
15 Q. Of course. Okay. All right. So I 15 would happen.
16 think what you're sharing with me is that -- a 16 Q. Of course.
17 description of the how the letter makes its way 17 A. And so it won't get to the Congress
18 to the Congress and gets approved. Right? 18 until those things happen. So that's why I
19 A. Right. 19 keep going back to the extremely important part
20 Q. All right. But, that doesn't change 20 of what happens afterwards. If it's relatively
21 the character of the thing once it's approved; 21 straightforward, it probably sails right
22 in other words, once it succeeds -- once the 22 through. It might sail right through. What
23 politics plays out, and once the Congress says 23 happened with that particular one you're
24 this is what I want to you build, the letter 24 talking about, I don't know. I don't know that
25 becomes the directive to the Corps. Isn't that 25 much.
Page 59 Page 61
1 correct? 1 Q. Right. But that wasn't my question.
2 A. In my day, yes. 2 A. Okay.
3 Q. All right. Now -- so the big question 3 Q. My question wasn't how it got there.
4 then becomes what is the discretion of the 4 My question related to, okay, it's got there
5 Corps to not -- I'm sorry. What is the 5 and it's been approved.
6 discretion of the Corps to deviate from what's 6 A. If it gets all the approvals, then
7 contained in the letter? All right? That's 7 that's the way it will be authorized in most
8 what I would like to explore. 8 cases. Now, the Congress might not authorize
9 MR. STONE: 9 it.
10 Objection. 10 Q. Right.
11 EXAMINATION BY MR. BRUNO: 11 A. They might change their mind.
12 Q. You would agree with me that the 12 Q. Of course. But again, my question
13 Congress isn't a whole lot like anybody else 13 relates to an authorized project.
14 out there who after having authorized someone 14 A. Okay.
15 to do some work has some expectation that what 15 Q. Okay? The Congress has said, okay,
16 it authorized will be what is in fact done, if 16 you know what? I like the letter.
17 they write the check. Wouldn't you agree? 17 A. Do it.
18 MR. STONE: 18 Q. I approve the letter.
19 Objection. That's an incomplete 19 A. Do it.
20 and misleading hypothetical, and it 20 Q. Go do it.
21 calls for a legal conclusion. 21 A. It goes to something called the Water
22 A. And I can't give you the legalities of 22 Resource Development Act that gets passed every
23 it. 23 two or three years.
24 EXAMINATION BY MR. BRUNO: 24 Q. Okay. And the question I had asked
25 Q. And I'm not asking for any legalities. 25 you was whether or not it's reasonable for me
16 (Pages 58 to 61)
Page 62 Page 64
1 to conclude, very similar to -- again, I'm 1 it's fair to conclude that the Congress has an
2 using the owner of piece of land who hires an 2 expectation that the Corps of Engineers will
3 engineer/architect to build him a house. 3 build what is described by the letter.
4 Is it reasonable that the Congress 4 MR. STONE:
5 would expect the Corps to do what it said it 5 Objection.
6 was going to do as embodied by the letter that 6 A. In general, yes.
7 the Corps wrote? Is that reasonable? 7 EXAMINATION BY MR. BRUNO:
8 MR. STONE: 8 Q. Okay. Now, the word discretion
9 Objection. That lacks an 9 appears in the authorizing language, and it
10 important part of the foundation for a 10 also appears I think in the letter itself. I'm
11 question like that. The witness would 11 trying to learn a little bit about the breadth
12 have to know what the Congressional 12 of that discretion. Certainly you would agree
13 act stated. 13 with me that the Corps of Engineers doesn't
14 A. Yeah. 14 have the discretion simply to not build at all.
15 EXAMINATION BY MR. BRUNO: 15 A. If the funds have come and the
16 Q. Can you answer the question without 16 appropriation.
17 counsel suggesting answers? 17 Q. So I'm assuming the Congress has done
18 MR. BRUNO: 18 its part. Okay? They've authorized, they've
19 And you have you continue it, I'm 19 approved the letter, they have funded. And I'm
20 going to call the judge. 20 thinking to myself, the most extreme thing that
21 MR. STONE: 21 the Corps could do would be not to do it at
22 Call the judge. 22 all, if I was within the context of discretion.
23 MR. BRUNO: 23 So I'm wondering if that discretion,
24 You want me to? I will. You're 24 in your estimation, would include the
25 supposed to have a simple objection to 25 discretion just not to do it?
Page 63 Page 65
1 form, relevance, no speaking 1 A. No.
2 objections. Those are the rules. And 2 Q. Congress, I'm not doing this.
3 you didn't do that just now. 3 A. The Army and the Corps -- the
4 MR. STONE: 4 administration has to follow the law.
5 That's an objection to form. 5 Q. All right. Now, you, sir, have
6 MR. BRUNO: 6 written a letter to the editor about a switch
7 No, it's not. No, it's not. 7 from the barrier plan to the high level plan.
8 A. Restate the question, and I'll try. 8 And I'm sure you're familiar with that letter.
9 EXAMINATION BY MR. BRUNO: 9 A. (Nods affirmatively.)
10 Q. Okay. Thank you. All I'm trying to 10 Q. I'm also quite certain that you are
11 understand is this: The Congress in its 11 familiar with the fact that the 1965 Lake
12 authorizing legislation says, and I think the 12 Pontchartrain and Vicinity Hurricane Protection
13 words are, Mr. Secretary, you are authorized to 13 Act approved this letter which is on the table,
14 do what's contained in your letter, and I think 14 and it is House Document Number -- it's on here
15 the precise words are, substantially in accord 15 somewhere -- I guess it's not on this piece of
16 with. 16 paper. But that the Lake Pontchartrain plan
17 A. Right. That's the usual form. 17 was really two plans, one was the Lake
18 Q. That's pretty usual. I've seen it 18 Pontchartrain plan and the Chalmette plan.
19 about fifty times. 19 Lake Pontchartrain plan had, as its major
20 A. Yes. 20 feature, barrier to be constructed at the
21 Q. And what I'm wondering is whether or 21 Rigolets. Is that accurate?
22 not, just in terms of your -- you've been 22 MR. STONE:
23 there, you've worked with the Congress, you've 23 Objection. Vague and overly
24 worked with the president, you've been in the 24 broad.
25 room -- whether or not you can tell me whether 25 A. And you're working on my memory about
17 (Pages 62 to 65)
Page 66 Page 68
1 things that happened before I got there. 1 instructing the witness not to answer
2 EXAMINATION BY MR. BRUNO: 2 either.
3 Q. Right. 3 MR. BRUNO:
4 A. I probably knew them at the time, but 4 And I'm suggesting to you that
5 I don't today. That's just too long ago and 5 I'm not asking this question for
6 I'm too old. 6 anything that has to do with levee.
7 Q. All right. Well, do you remember when 7 Nothing. This is a question that
8 you wrote the letter to the editor? 8 relates to discretion which, with
9 A. That I remember. 9 respect, is all over and indeed is
10 Q. Okay. And when was that? 10 going to be the subject for a motion
11 A. I think it was last fall. 11 for summary judgment that you've told
12 Q. Last fall. 12 me you're going to file. So I'm
13 A. There should be a date on it. 13 addressing it.
14 Q. All right. And that letter made 14 MR. STONE:
15 reference to the barrier plan? 15 Well, we don't have to go any
16 A. Yes. 16 further. I understand your position
17 Q. And that letter made reference to the 17 here.
18 high level plan. 18 MR. BRUNO:
19 A. Yes. 19 All right.
20 Q. All right, sir. And what was your 20 EXAMINATION BY MR. BRUNO:
21 recollection of the barrier plan at the time 21 Q. A lot of legal mumbo-jumbo, General.
22 that you wrote the letter? 22 That's -- all this squabbling is something that
23 MR. STONE: 23 we do, that's what we get paid for, and so
24 Joe, I have to enter an objection 24 please ignore it. I just want to get your
25 here that this is really beyond the 25 knowledge, sir.
Page 67 Page 69
1 scope of this deposition. This 1 A. Okay. Let me say, I'm puzzled because
2 deposition is about MRGO and Robinson, 2 my letter to the editor that you referred to
3 and that part of the case has been 3 had nothing in it, in my mind, about MRGO, it
4 dismissed having to do with the 4 had to do only with the flood control issues of
5 barrier plan. 5 the best way to protect not only New Orleans,
6 EXAMINATION BY MR. BRUNO: 6 and I didn't say this as well as I probably
7 I think that's a one-word 7 could have in that letter that was written in a
8 objection; relevance. And that's all 8 hurry, but also the rest of the areas
9 that I will accept because that's all 9 threatened by a flood surge in Lake
10 that I have been admonished to say, 10 Pontchartrain.
11 and we're going both going to play by 11 Q. Right.
12 the same rules. 12 A. There's much beyond just New Orleans
13 MR. STONE: 13 that are affected way that.
14 I'll play by that rule. 14 Q. Oh, I know. I agree with you, sir,
15 Objection. Relevance. 15 100 percent. But in that letter, you say or
16 MR. BRUNO: 16 suggest, and I don't want to misquote you, that
17 All right. Got you. 17 you made a mistake.
18 EXAMINATION BY MR. BRUNO: 18 A. (Nods affirmatively.)
19 Q. Now, would you answer my question? 19 Q. And without even going there, the
20 MR. STONE: 20 reason why I'm asking the questions is because
21 But I need to talk to you about 21 it obviously indicates to me, and I'm just
22 something, the Oppenheimer case in the 22 reading what you wrote, that there was, A, an
23 supreme Court, you're not entitled to 23 opportunity for you to do A or B, you chose
24 take discovery on something that's 24 perhaps B over A, I don't know, I don't really
25 been dismissed. So I'm not 25 care, but it's that discretion component that I
18 (Pages 66 to 69)
Page 70 Page 72
1 want to understand a little bit better. Okay? 1 Q. No, no. I don't think so.
2 I honor you for having written that 2 So tell me, then, what were you
3 letter. As a citizen of the city and who lived 3 telling us in your letter about these two
4 through this mess, I respect it. So now, 4 plans?
5 though, as a lawyer, I just want to ask 5 A. What I was telling the reader of the
6 questions about this business of discretion. 6 letter is that I erred -- remember, the reason
7 And that's why I'm asking it. Okay? And I got 7 that the barrier plan stopped, at least the
8 the sense when I read the thing, well, maybe 8 major part of it which was the two gates, was
9 the general, you know -- did he have the -- 9 because a judge -- we haven't even talked about
10 could he pick one from Column A as opposed to 10 the Courts.
11 pick one -- was that something the general did 11 Q. No.
12 or not? You see, so anyway, that's all 12 A. But a judge had said, no further
13 background. 13 design on what was essential to the barrier
14 MR. STONE: 14 plan. And that was the part that the Corps had
15 Why don't you stop now and ask 15 not given up on, do we fight that farther, do
16 him a question. Okay? 16 we appeal? I mean, there's all sorts of things
17 MR. BRUNO: 17 the Corps can do --
18 Well, listen, you're the one who 18 Q. Right
19 made all the noise about relevance and 19 A. -- or the government can do in a case
20 so I feel compelled because the 20 like that. I decided we wouldn't fight the
21 witness is confused, and the witness 21 judge 's decision any further; therefore, we
22 has even told me, look -- 22 had to go to the high level plan, which doesn't
23 MR. STONE: 23 have anything to do with MRGO --
24 We've heard from you. Now let's 24 Q. All right. Well, but --
25 hear from the witness. 25 A. -- that I know about.
Page 71 Page 73
1 MR. BRUNO: 1 Q. That's fine. But you see, you just
2 Joe, why are you asking me these 2 said we went to one of the other. The high
3 questions about this barrier plan? 3 level plan was not articulated in the letter
4 EXAMINATION BY MR. BRUNO: 4 that we have already decided is the thing that
5 Q. I hope I've given you a reasonable 5 the Congress approved.
6 explanation, and I'm giving it to you, General, 6 Isn't that true?
7 because I respect you and I want you to know 7 A. Um -- I don't know. I don't -- I
8 where I'm coming from. 8 cannot answer that. Maybe it's because I just
9 So having said, that may I now ask 9 don't remember. But I don't know. I don't
10 you, sir, about the letter? 10 know how to answer your question.
11 A. Okay. 11 Q. Oh, okay. All right. You've just
12 Q. Now, first, I know it's a long time 12 said we went from one plan to the other.
13 ago, but you remember the barrier plan and you 13 Did I get that wrong? You said we
14 remember the high level plan, right? 14 went from barrier to high level.
15 A. Right. 15 A. Yes.
16 Q. Okay. And you remember that the 16 Q. Okay. And we went from barrier to
17 barrier plan was the plan authorized by the 17 high level because we didn't want to fight the
18 Congress. Right? 18 judge. Right?
19 MR. STONE: 19 A. That was my decision when I was chief,
20 Object to time frame. 20 yes.
21 MR. BRUNO: 21 Q. Okay. So where -- where was this high
22 In 1965. 22 level plan? Where could one go to look at it,
23 A. Far as I know, yeah. Maybe there's 23 read it, study it, understand what it was?
24 something I'm forgetting about it, but -- 24 A. Um -- I just don't know the answer to
25 EXAMINATION BY MR. BRUNO: 25 that question. Just too much time has passed
19 (Pages 70 to 73)
Page 74 Page 76
1 that I can answer that in any detail. 1 like that?
2 Q. Right. 2 A. Yes.
3 A. But there was a high level plan which 3 Q. That is, we're switching from barrier
4 involved building levees, flood walls and so 4 to the high level plan?
5 forth higher because Lake Pontchartrain cannot 5 A. Yes. Within the Director of Civil
6 be, the surge in Lake Pontchartrain cannot 6 Works job, which we talked about earlier, there
7 be -- 7 are elements that talk directly to both the
8 Q. Contained. 8 appropriations and authorization sides, meaning
9 A. -- contained. 9 the staffs, of the hill, and that's where it
10 Q. Because the barrier plan was intended 10 would have happened. I can't tell you that
11 to prevent the surge from entering the lake in 11 that's exactly what happened then, but that's
12 the first instance. 12 the way the system worked --
13 A. Yes. 13 Q. I understand.
14 Q. Obviously, if you don't build the 14 A. -- and that's how the Congress would
15 barrier, then you've got more surge in the 15 have been informed.
16 lake -- 16 Q. Right.
17 A. Yes. 17 A. And if the Congress had disagreed with
18 Q. -- and they're higher levees. 18 that I assure you I would have heard about it.
19 A. Right. 19 Q. Right. Would that have included some
20 Q. Okay. Now, what was your role in that 20 kind of a paper trial or was this all oral?
21 switch? 21 A. I don't know the answer to that. I
22 A. Um -- I was head of the Corps of 22 imagine so, but I couldn't advise you where to
23 Engineers, and the staff had brought let's quit 23 find it.
24 fighting this as a recommendation. I don't 24 Q. Okay. All right.
25 remember the specifics of how it got brought to 25 (Brief recess.)
Page 75 Page 77
1 me, I just remember it happened. And I said, 1 EXAMINATION BY MR. BRUNO:
2 okay. That means we have to build it higher -- 2 Q. Okay. General, just one or two more
3 Q. Right. 3 questions on that thing, and we'll move on.
4 A. -- if you don't have the flood surge 4 A. Okay.
5 gates. It's an either/or. It certainly was 5 Q. I just want to confirm the reason for
6 for the engineers. 6 the switch was your understanding that the only
7 Q. All right. I'm with you. So was it 7 option you had was tod-the fight the judge or
8 as simple as that? You just simply said, okay, 8 go to the high level plan. Did I summarize
9 you sign a piece of paper? I mean, what's the 9 that accurately?
10 process? 10 A. Yes.
11 A. Go forward with the high level plan. 11 Q. Okay. Was it your understanding that
12 Q. So that's an order that was issued 12 the reason why the judge -- I'm sorry. Did you
13 from you to the Corps; let's just do this. 13 have any understanding that the reason why the
14 A. De facto -- yes. That's correct. 14 judge had stopped the barrier plan was because
15 Q. Did you advise the Congress of the 15 he wanted the Corps to do an environmental
16 fact that you were doing that? 16 evaluation of the barrier plan?
17 A. I don't remember that but I'm 17 A. What I'm going to give you is
18 reasonably sure that we, the Corps of 18 secondhand, but my understanding was that he
19 Engineers, did. 19 was not sufficiently impressed with the Corps'
20 Q. Okay. Can you -- 20 environmental assessment, environmental impact
21 A. I didn't go over and say, hey, Mr. 21 statement, whatever form it had at that point,
22 Congress, I'm doing this. 22 and the reason he gave for stopping the design
23 Q. I know. I know. May I learn just the 23 was get a better environmental report, which
24 process? Do you recall what the process would 24 presumably we were working on, but.
25 have been for giving the Congress information 25 Q. Right.
20 (Pages 74 to 77)
Page 78 Page 80
1 A. I was gone then, so I don't know the 1 issue in MRGO that there was concern that there
2 details, because this is all happening down in 2 was some, um -- lessening of the depth,
3 New Orleans. 3 probably some sloughing along the sides. But
4 Q. All right. Okay. But the bottom 4 if you asked is that what was happening, I say
5 line, though, is that it was your decision and 5 I think that's what was happen. I really -- my
6 your decision alone to make. Once you said 6 memory is not very good on that.
7 okay, let's switch, it was done. 7 I did very little thinking about MRGO
8 A. Yes. 8 while I was down there in my fourteen months.
9 Q. Is that accurate? 9 MRGO was something that was working, by and
10 A. Yes. 10 large. I might have heard some stuff about it,
11 Q. All right. Do you know if there was 11 maybe moving appropriations around to do some
12 any other protocol or any other process that 12 dredging on it. I don't even remember that.
13 was required other than you just making the 13 So it wasn't that MRGO wasn't working or wasn't
14 call? 14 there, it was that it was not an issue on my
15 A. Probably there was conversations with 15 watch. We've already talked about the main
16 the assistant secretary 's office. I don't 16 issue on my watch was barriers.
17 remember that, but I can't imagine that at 17 Q. All right. Please forgive me. I had
18 least the director of civil works was saying, 18 a transcript of testimony that was given by a
19 here's what we're taking to Heiberg, do you 19 Mr. Accardo who was the operations manager of
20 have any problems with it. And he probably 20 the New Orleans District office, and I wanted
21 said no. But this is all probability. I don't 21 to ask you whether or not you agreed with his
22 know that. 22 assessment, and I can't find the transcript so
23 Q. Okay. 23 I'm going to have to paraphrase it.
24 A. But that would have happened. This 24 A. Say again the guy 's name.
25 didn't happen in a vacuum is what I'm saying. 25 Q. Accardo. A-C-C-A-R-D-O.
Page 79 Page 81
1 Q. All right. Now, let's talk about the 1 MR. STONE:
2 MRGO. First of all, given the fact that you've 2 Chris.
3 been away from the Corps for some time, let me 3 EXAMINATION BY MR. BRUNO:
4 ask you, did you have a current recollection of 4 Q. Chris Accardo.
5 what the MRGO is? 5 A. I do not remember the name.
6 A. Yes. 6 Q. And I'm not asking you whether you
7 Q. All right. And I've got some maps if 7 remember the name, I'm asking you whether or
8 you wanted your recollection refreshed, but 8 not this gentleman's accurately describing the
9 basically it's a channel as depicted on these 9 Corps' position on something.
10 maps. 10 A. Okay.
11 A. Right. 11 Q. Now, in this litigation, I will share
12 MR. BRUNO: 12 with you that our allegation is that the MRGO
13 And we can attach those, Richard, 13 was built in such a way as to allow its banks
14 if you'd like. I have an extra copy 14 to erode, and that because the banks eroded the
15 for you. 15 channel became wider, and that the location of
16 EXAMINATION BY MR. BRUNO: 16 the channel coupled with the erosion of the
17 Q. Or is it one? It's just an extension. 17 banks allowed salts water intrusion into the
18 It's one long -- so it's the whole channel. 18 marsh, killed certain components of the marsh,
19 A. Yep. 19 trees and the like.
20 Q. Now, can you recall, as you're sitting 20 Now, the first question I asked
21 here today, having any issues come up about 21 Mr. Accardo was whether or not he had a view as
22 that channel when you were either the Commander 22 to whether marsh, trees and land provided a
23 of the New Orleans District office or in any 23 buffer to hurricane surge, and he gave me his
24 other position up until you left? 24 answer.
25 A. I have a vague recollection of the 25 Do you, sir, have any opinion as to
21 (Pages 78 to 81)
Page 82 Page 84
1 whether or not trees and marsh and swamps can 1 But actually you want his opinion
2 provide a buffer to hurricane surge? 2 for the time he was at the Corps.
3 A. Yes, they can. 3 MR. BRUNO:
4 Q. Okay. Now, the Corps has recognized, 4 Yes.
5 before you left, that the MRGO was causing 5 A. When was Accardo making the statement?
6 erosion of its banks. Isn't that true? 6 EXAMINATION BY MR. BRUNO:
7 A. Say that one more time. 7 Q. A couple of weeks ago.
8 Q. All right. The Corps has confirmed 8 A. Yeah. Well, I don't remember anything
9 that the MRGO, because of the way it was 9 discussed like that what while I was involved
10 constructed, was eroding its banks. 10 in the Corps. I think -- now, I think there
11 A. If that statement was made by the 11 could well have been conversations afterwards
12 Corps, like the district, if that's what you 12 to get to that point, but I had nothing to do
13 mean by the Corps in this case, I do not 13 with it, and I'm not familiar with it.
14 remember that. I just don't remember it. 14 Q. Well, but that wasn't my question. I
15 Q. Okay. All right. That's fine. 15 was asking you your opinion as the Commander of
16 Because here's the question: I asked 16 the Corps.
17 Mr. Accardo whether or not in this opinion -- 17 A. When I was Commander of the Corps I
18 now, in fairness to you, his opinion, not 18 had no opinion on that at that time. I don't
19 yours, and he didn't bind the Corps, this is 19 believe we knew the things that were going to
20 his opinion -- whether the Corps had any 20 happen later on, if indeed they happened --
21 interest in the fact that the MRGO may have 21 Q. Okay.
22 been damaging the marsh and thereby reducing 22 A. -- is what I'm saying. It wasn't
23 the marsh 's ability to provide a hurricane 23 something we wrestled with, that I remember at
24 buffer. And his answer was that that was 24 all, on my watch.
25 irrelevant to the Corps, that the Corps' job 25 Q. All right. Are you saying that you
Page 83 Page 85
1 was to dredge that channel to a certain bottom 1 are not able to give me an opinion as to
2 width, a certain depth, a certain slope. And I 2 whether or not -- because this is the real
3 think he went on to say that the proof of that, 3 question: The real question is, does did Corps
4 in his mind, was that the Congress gave the 4 care -- if during its mandated dredging
5 Corps money every year to do just that. So 5 operations whether or not does it have any
6 what I'm curious to know, sir, is, you, as the 6 concern or interest in the potential for that
7 general in charge of the U.S. Army Corps of 7 dredging to cause damage to other people's
8 Engineers, would agree with Mr. Accardo 's 8 property?
9 assessment that the potential of the MRGO to 9 I'm going to ask you this as generally
10 destroy the marsh was irrelevant. 10 as I possibly can. Does the Corps have an
11 MR. STONE: 11 interest or does it have no interest in that
12 Objection, first. You're asking 12 potential?
13 him the assume for the sake of 13 MR. STONE:
14 argument that your -- 14 Objection. The witness is not
15 MR. BRUNO: 15 called as a 30(b)(6) witness here.
16 Rendition is factual. And I 16 MR. BRUNO:
17 apologize for not -- I mean, I had the 17 Oh, I know that.
18 transcript in my hands. 18 MR. STONE:
19 MR. STONE: 19 I'm not instructing him not to
20 That's okay. I just want to know 20 answer that question.
21 that you're just asking him the 21 MR. BRUNO:
22 basis -- 22 No, no. And I didn't mean to
23 MR. BRUNO: 23 suggest -- that's why I keep having to
24 Oh, yeah. Sure. 24 keep asking and asking and asking the
25 MR. STONE: 25 same question other again.
22 (Pages 82 to 85)
Page 86 Page 88
1 EXAMINATION BY MR. BRUNO: 1 before you left in order for it to have been
2 Q. Because I didn't suggest that you were 2 published in February of '88, right?
3 a 30(b)(6) witness. 3 A. I agree.
4 A. I don't know what 30(b)(6) means. 4 Q. Do you have any knowledge of this
5 Q. And why we go there is beyond me. You 5 Mississippi River Gulf Outlet, St. Bernard
6 were the man in charge, so I'm asking you as 6 Parish Bank Erosion Reconnaissance Report?
7 the man in charge during the time that you were 7 A. I may have at the time. I do not
8 in charge, General, whether you felt that if 8 remember.
9 the Corps had learned that dredging was 9 Q. Okay. All right. Now, it's my
10 damaging the environment, let's use those, that 10 understanding that the real estate report was
11 phrase, since you were more comfortable with 11 completed in '88 and another one was completed
12 that earlier today, that the Corps would take 12 in '94.
13 the position that it's not relevant, or would 13 A. Okay.
14 the Corps take the position that it is 14 Q. All right? Do you have any knowledge
15 relevant, when you were in charge? 15 as to why it never went to the next level?
16 A. When I was in charge everything was 16 A. None.
17 relevant, and certainly including that, yeah. 17 Q. Do you know what happened with this
18 Q. All right. Now, was there a process 18 real estate report?
19 in place whereby if that were occurring, 19 A. I do not.
20 because you've already told me the Corps 20 Q. Okay. Is it fair for me to conclude,
21 doesn't have any money, it's the Congress 21 based upon your previous testimony, that the
22 that's got the money, but in order for the 22 real estate report would be presented to the
23 Congress to spend the money the Congress has to 23 Congress?
24 be told of the need to spend money. Don't you 24 A. If it went through that system I
25 agree? 25 talked about. It doesn't go from the Corps to
Page 87 Page 89
1 A. Uh-huh. 1 the Congress, it goes from the Corps -- the
2 Q. All right. And you have to say yes 2 Assistant Secretary, da, da, da, da, da, to the
3 for the record. 3 Congress.
4 A. Yes. 4 Q. All right. Well, you're still there
5 Q. I'm sorry, General. Was there a 5 in '88. Do you remember whether or not this
6 process available to you at the time that you 6 report, the '88 reconnaissance report, was
7 were in charge to advise the Congress, look, 7 reviewed by you?
8 guys, you know, for example, this project here 8 A. I don't remember. Probably. No, I
9 in wherever, that you've authorized, we've 9 don't remember. I won't give you probably
10 built it, it turns out that, you know, we're 10 because I don't remember.
11 causing X which I find to be undesirable. You 11 Q. Sure. If you don't remember, you
12 guys, would you let me do something about it? 12 don't remember. That's fine.
13 Was there some kind of a process where you 13 Was it the process, that is, the
14 could do that? 14 process would have included a review by the
15 A. Yes, there was. But this conversation 15 commander, right?
16 didn't occur on my watch. 16 A. Could have included a review by the
17 Q. That was the next question. 17 commander. Commander could have been on a trip
18 A. We didn't know. 18 and his deputy did it. Or the Director of
19 Q. All right. Now, we've talked about 19 Civil Works thought it was within his authority
20 reconnaissance reports already. There was a 20 to send it straight on over. There were
21 reconnaissance report on bank erosion on the 21 different rules for when that happened. So I
22 MRGO -- 22 might not have seen it in any event.
23 A. Okay. 23 Q. Okay.
24 Q. -- dated February '88. Now, you left 24 A. But I sure don't remember seeing it.
25 in '88, but obviously this thing had to begin 25 Q. All right. Well, do you remember any
23 (Pages 86 to 89)
Page 90 Page 92
1 discussions about foreshore protection of the 1 so what are your options?
2 banks of the MRGO? 2 MR. STONE:
3 A. Don't remember. 3 Objection. Calls of the
4 Q. Do you remember a dialogue within the 4 speculation.
5 Corps about whether the cost of foreshore 5 A. Yeah.
6 protection should be borne by the MRGO project 6 EXAMINATION BY MR. BRUNO:
7 as opposed to the hurricane protection project? 7 Q. Well, what were your options back
8 A. No. 8 then? And maybe I'm confusing you. I don't
9 Q. All right. Do you remember that there 9 mean, when I say what are your options, dig a
10 was another component to this project, the 10 channel or not dig a channel, or put foreshore
11 navigation lock expansion? 11 protection or don't put foreshore protection, I
12 A. The inner harbor navigation lock? 12 mean, as the Corps with an authorized project
13 Q. Yes. 13 by the Congress, what discretion does the Corps
14 A. Yes. I do remember some of that. I 14 have to do anything? That's what I was really
15 remember there was a lot of discuss about that 15 asking.
16 while I was down there. 16 MR. STONE:
17 Q. Right. And was there some discussion 17 Objection. Overly broad.
18 about another channel being dug? 18 A. Yeah. Um -- could the Corps do
19 A. Not that I remember. 19 anything? Again, I think you're talking about
20 Q. That's fine. Do you remember a 20 the district. Um -- I don't know -- it would
21 discussion about building barriers along Lake 21 depend on what the anything is. I don't know
22 Borgne? 22 the answer. I can't even imagine what the
23 A. I do not. 23 answer would be. I do not remember discovering
24 Q. Did you, while you were at the New 24 that.
25 Orleans District office, or later, up until the 25 EXAMINATION BY MR. BRUNO:
Page 91 Page 93
1 point when you left, have any knowledge of the 1 Q. Well, again, I'm not talking about
2 saltwater intrusion issue as it relates to 2 MRGO. I'm just asking you based upon what
3 MRGO? 3 you've told me. You said we have saltwater
4 A. As it relates to MRGO, I don't 4 intrusion as a issue and there's a discussion.
5 remember. As a general -- but to be full about 5 A. Yeah.
6 it, as a general point, not just MRGO but lots 6 Q. Now, I have to imagine that you only
7 of other of the channels, some of them not done 7 have a discussion because there's some purpose
8 by the Corps, some of them done by the Corps, 8 in having a discussion in the first instance.
9 issue of saltwater intrusion was an issue that 9 Right?
10 we discussed and were concerned about, yes. 10 A. Right.
11 Q. All right. 11 Q. And so what are you discussing?
12 A. But with respect to MRGO, I don't 12 A. Well, for one, you're discussing an
13 remember that. 13 ability to understand something that's going on
14 Q. That's fine. Let's just talking about 14 that maybe you didn't predict --
15 it generally then. 15 Q. Okay.
16 What was the issue as you understood 16 A. -- in which case you might have to
17 it? 17 address it to the public, you might have to go
18 A. If there was saltwater intrusion, it 18 back and tell the Congress you forgot to do
19 could be causing problems that we might not 19 something, I suppose. But like I say, I do not
20 have anticipated when we put the feasibility 20 remember those kinds of discussions like you're
21 report together. 21 talking about on my watch.
22 Q. All right. That being so, what would 22 Q. Right. And I wasn't referring to the
23 be the potential responses by the Corps to 23 MRGO now. I was referring -- because you said
24 something that you didn't consider because you 24 to me, I thought, I don't have any recollection
25 didn't know about it but now you know about it, 25 about MRGO. But you said, in fairness to you,
24 (Pages 90 to 93)
Page 94 Page 96
1 I do recall discussions generally about 1 going to pull them is to see if it may jog your
2 saltwater intrusion in other locations. 2 memory on something.
3 A. Yes. And it could have included MRGO. 3 Do you remember a gentleman named
4 Q. Right. 4 Becnel?
5 A. That part I don't remember. I don't 5 A. No.
6 remember at all that it did include MRGO. But 6 Q. This is Bates Number NED 125-1000,
7 we did look at and consider and talk about and 7 1001, 1002, 3, 4, 5 and 6. Just take a quick
8 discuss, or we understood it, saltwater 8 peek. Again, it's got your name on it.
9 intrusion. And that wasn't just on my watch. 9 (Tendering.)
10 I mean, that goes on today. 10 MR. STONE:
11 Q. Right. And one of the things that the 11 Is there a question pending on
12 Corps may decide to do is to alert the Congress 12 this?
13 about something that it didn't know when it 13 MR. BRUNO:
14 designed it or presented it to the Congress but 14 No, because before I asked the
15 now has discovered the problem, right? 15 question I asked the General if this
16 A. That's correct. 16 document refreshed his recollection
17 Q. And what would be the purpose in so 17 about any of the subject matters
18 advising the Congress? 18 contained therein so I could --
19 A. To make sure they understand things 19 A. Yeah. I don't remember enough about
20 that weren't in compliance with what the 20 the subject matter. In fact, some of the
21 feasibility report might have said that 21 initials I don't even understand today. That
22 recommended the project. 22 was a note sent to me by my deputy, the
23 Q. All right. General -- so you'll know, 23 Lieutenant Colonel, and I just initialed it.
24 I'm looking at my outline because I don't want 24 So I knew the general subject, but -- and asked
25 to sit here and just test your memory. If you 25 a question about it. I don't dispute that
Page 95 Page 97
1 don't have a memory about a lot of different 1 that's mine.
2 things I'm not going to go through document by 2 EXAMINATION BY MR. BRUNO:
3 document. 3 Q. Oh, I'm not --
4 A. Thank you. 4 A. But do I remember it? No.
5 Q. I would prefer if we can shorten this. 5 Q. Okay. Let me show you another
6 Maybe if I've could just learn those subjects 6 document. This is a letter written by you, and
7 that you do recall. Again, we are here to 7 it is NED-125-994 to 999.
8 discuss the MRGO, and so can you share with me 8 I think that was just a draft that
9 what subjects you do recall, if any, about the 9 says not sent on it.
10 MRGO? 10 A. Yeah. So presumably this was one that
11 A. I gave you a for instance in our first 11 I signed and not --
12 tape that I am reasonably sure -- in other 12 Q. Right. Yeah.
13 words it's a faint memory -- that we did 13 A. It could conceivably have been signed
14 discuss the issues of the depth of MRGO, as we 14 by my deputy. That sometimes happened. So I
15 did with everything, the Gulf Intracoastal 15 don't know. But I probably signed it.
16 Waterway, the exit to the sea on the main stem. 16 Q. Okay.
17 We always discussed the depths that were 17 A. Incidentally, one thing we said
18 available to the shipping, because there was a 18 earlier that I need to correct, we were talking
19 safety issues concern and there was certainly 19 about when I was down there. It was clearly
20 an operational issue concern. So I imagine -- 20 '74 to '75. And I was first guessing a couple
21 I'm reasonably sure that we did discuss that. 21 of years earlier than that. So that's --
22 I have no direct memory of directly discussing 22 Q. No. You were right on. The only
23 it with respect to MRGO, but I probably did. 23 question was whether it was more than one year.
24 Q. Okay. I have just a few documents 24 A. Yeah. A couple months more than one
25 with your name on them, and the only reason I'm 25 year, but I think I said the wrong year at the
25 (Pages 94 to 97)
Page 98 Page 100
1 time. 1 Objection. Vague and overly
2 MR. STONE: 2 broad.
3 I believe he did, too. I believe 3 A. All I can do at this point -- like I
4 he said '72 to '73, and this shows 4 said, the subject matter discussed in that
5 it's '74 to '75. 5 letter is too detailed for me to -- it's either
6 A. Yeah. '74 to '75. But as long as we 6 too detailed or too far away from me to really
7 know that -- it's not an issue, I don't think. 7 remember this issues, but I would have said
8 EXAMINATION BY MR. BRUNO: 8 something like that. Or if I, me, would have
9 Q. Yeah. No, I don't think it was 9 said something like that, if there's clearly a
10 either. 10 difference in the way the project was
11 A. Now, do I remember signing that piece 11 authorized and/or the expense that we -- the
12 of paper? No. Do I remember the subjects? 12 cost of it, that we would have reported to the
13 Not much. 13 Congress probably in the feasibility report.
14 Q. Well, that's what I'm asking about, 14 Q. All right.
15 the subjects are this proposed alternate 15 A. And I'm making a guess there because I
16 channel. Do you have any recollection of that? 16 don't specifically remember that.
17 A. I do not. 17 Q. Right. Well, taking this off the
18 Q. All right. It says, the regulation of 18 table, under what circumstances do you believe
19 the salinity level of Lake Pontchartrain and 19 you would have to approach the Congress for
20 the reduction of existing high currents in the 20 approval if you wanted to modify a previously
21 Inner Harbor Navigation Canal, both of which 21 authorized project?
22 are required to mitigate the adverse effects of 22 MR. STONE:
23 the MRGO, necessitate a navigation lock and 23 Objection.
24 control structure complex somewhere in the IHNC 24 A. By the extent of the changes and the
25 between MRGO and Lake Pontchartrain. This 25 expense, which is what I just said.
Page 99 Page 101
1 complex is presently authorized Seabrook and a 1 EXAMINATION BY MR. BRUNO:
2 flood gate in the MRGO would not eliminate this 2 Q. All right. Well, is the extent a
3 requirement. 3 matter of degree?
4 No recollection of that? 4 In other words, sometimes --
5 A. Really not, no. 5 A. Yes.
6 Q. All right. Well, there is one 6 Q. Okay. Can you give me some --
7 sentence that I have to ask you about. It 7 A. There's a judgment there. And I
8 says, even if we could support the combined 8 was -- I and my folks that work with me were in
9 levee plan, and we cannot, the modifications 9 charge of making judgments on things like this,
10 involved are so broad in scope that 10 and our judgment was this was a major departure
11 Congressional action would be required to 11 from the original authorization.
12 authorize it. 12 Q. Okay. All right. I get it.
13 Can you help me understand that? What 13 So that when you determined that
14 is it about a particular project that would 14 the -- there's a level of departure --
15 require Congressional authorization? 15 A. Right.
16 MR. STONE: 16 Q. -- which in your judgment would
17 Objection. 17 suggest that you alert the Congress.
18 A. Yeah. And -- 18 A. Right.
19 EXAMINATION BY MR. BRUNO: 19 Q. Fair enough?
20 Q. Let me reask that question. 20 A. Yes.
21 What is it about a modification to a 21 Q. I show this to you perhaps because of
22 project that would require Congressional 22 its prescience. August 22, 1975. Letter by
23 authorization? That's what I'm asking you 23 you to the Honorable Edward Scoggin.
24 about based upon this sentence. 24 Take a quick look at this one.
25 MR. STONE: 25 A. Okay. Sounds like a letter I would
26 (Pages 98 to 101)
Page 102 Page 104
1 have written. 1 letter back.
2 Q. Right. Do you have a crystal ball? 2 EXAMINATION BY MR. BRUNO:
3 A. Yeah. That's one nobody drafted for 3 Q. Well, that's fine. And it wasn't a
4 me, I don't think. 4 question about the letter.
5 Q. All right. This is PET -- I'm not 5 A. Okay.
6 your what the distinction is between PET and 6 Q. This is document NED 011-552 in
7 NDR, put PET 0120-2833, 34, 35 and 36. 7 seriatim to 577. (Tendering.)
8 A. Okay. 8 A. I'm looking for Heiberg. Dates?
9 Q. Do you have -- I'm sorry. Okay 9 Okay. This is a briefing.
10 meaning you're done? 10 Q. Right. We know it's a briefing.
11 A. No, just asking him if -- I suspect I 11 Does it refresh your recollection in
12 never saw this letter. It was written after I 12 any way about the events?
13 had written his, and the way I wrote mine I'm 13 A. Well, I'm looking for the date, but
14 saying good-bye at the same time. So probably 14 obviously this is when I'm somewhere in
15 the next guy saw this letter, is my guess. I 15 Washington, I guess. But I'm not real clear on
16 don't remember specifically the date. But that 16 that. Like I say, I'm looking for a date.
17 was about the time I was leaving, so I might 17 January '80. So by this time -- that's on one
18 have just put it in the save this for my 18 of the documents, January '80. So by this time
19 successor box. 19 I'm Director of Civil Works. I'm in the water
20 Q. I understand. Does this refresh your 20 resource job up at the Corps of Engineers. I
21 recollection about any of the subjects or the 21 know Mr. Gianelli, and he was the Assistant
22 issue that are being talked about here? 22 Secretary of Army Civil Works at the time. But
23 A. Not really. Obviously, I was having a 23 again, the subject is the subject we've been
24 to-do with Scoggin there, but I just don't 24 talking about, barrier versus high level plan.
25 remember that, period. 25 Q. All right. Do you know, does this
Page 103 Page 105
1 Q. Do you remember what the to-do was 1 document -- well, you do recall that you were
2 about? 2 briefed about the subject, do you?
3 A. No. You know, I've read what he says 3 A. No, I see this that I was briefed
4 it's about. 4 about the subject. I don't recall the
5 Q. Well, he's opposed to the barrier 5 briefing.
6 plan, obviously. 6 Q. All right. And this document doesn't
7 A. Yes. 7 refresh your recollection that you were
8 Q. And do I gather that because it was 8 briefed.
9 the authorized plan that you felt compelled to 9 A. It doesn't refresh my memory that I
10 promote the plan? 10 was briefed, but the fact that I was probably
11 A. Yes. 11 briefed on this certainly fits the scene at the
12 Q. Is that reasonable? 12 time, yes.
13 A. Yes. 13 Q. All right.
14 Q. Okay. 14 A. But I'm not saying I remember the
15 MR. STONE: 15 briefing, because I don't.
16 Joe, was that -- that last 16 Q. That's fine, General.
17 question, was that meant to be at the 17 Do you have any recollection of an
18 time of that letter? 18 ongoing discussion within the Corps over
19 MR. BRUNO: 19 whether or not the Corps had the discretion to
20 Well, yeah. 20 go from barrier to the high level plan?
21 A. That's how I took it. 21 A. Although I don't recall it, I'm sure
22 MR. BRUNO: 22 that happened, yes.
23 I don't know how it could be at 23 Q. All right, sir. Well, let me just
24 any other time. 24 have that back and ask you -- we have already
25 A. Like I say, if I'm not sure I saw his 25 identified Mr. William R. Gianelli.
27 (Pages 102 to 105)

Page 106 Page 108
1 A. Right, who was mentioned in the 1 Q. All right. So this does nothing more
2 briefing. 2 but confirm that there's a dialogue going on
3 Q. Is it's Assistant Secretary of the 3 between the chief, the deputy chief and the
4 Army at that time. 4 assistant secretary.
5 A. He was. 5 A. Right.
6 Q. Okay. Is he your boss? 6 Q. All right. And as I say, you've
7 A. He's my boss for civil works matters. 7 already testified as to the resolution, you
8 My boss is the Chief of Engineers. 8 made the call that didn't have to go get
9 Q. Okay. 9 authorization from the Congress, you made the
10 A. But he's the boss of the Corps for 10 decision to switch. Right?
11 civil works matters, and I was the one normally 11 A. Well, that doesn't say --
12 discussing, for the chief, all things having to 12 MR. STONE:
13 do with water resources at the time. 13 Objection. I think that
14 Q. Okay. Well, as this regards the issue 14 mischaracterize the testimony here
15 of the switch from the high level plan to the 15 today.
16 barrier plan -- 16 A. Right. And it doesn't reflect what I
17 A. Right. 17 just saw. Gianelli is saying, prove it to me.
18 Q. -- and in view of your testimony that 18 So I got out of that.
19 that was a decision that you made while you 19 EXAMINATION BY MR. BRUNO:
20 were the Commander, is it not a fact that these 20 Q. Yeah. All I said was that -- I think
21 issues arose while -- 21 you're overreacting to the question. I said,
22 A. While I was the Commander of the 22 all this does is evidence that there was a
23 Corps. 23 discussion.
24 Q. Yeah. 24 A. Yes.
25 A. Not New Orleans. 25 Q. Okay?
Page 107 Page 109
1 Q. I said Commander of the Corps. 1 A. Yeah.
2 A. Yeah. Got it. Got it. 2 Q. Between the deputy --
3 Q. These issues were swirling around 3 A. The assistant secretary of civil works
4 while you were the Commander. 4 and the chief.
5 A. Right. And before. 5 Q. Yeah.
6 Q. And before. I show you this document. 6 A. Right.
7 A. This is three jobs before I was the 7 Q. That there was a discussion. And we
8 Commander. 8 know how it played out. You've already
9 Q. This document here. (Tendering.) 9 testified as the chief you decided you didn't
10 A. Now we're to '82. 10 need Congressional authorization. That's all
11 Q. '82. And you're deputy chief. 11 I'm confirming.
12 A. And at this time I'm deputy chief. 12 Isn't that true?
13 Okay. 13 A. No. As the chief I decided we'd quit
14 Q. All right. Do you recall that 14 pushing for the barrier plan and go to the high
15 Mr. Gianelli had expressed the view that the 15 level plan.
16 Corps would need Congressional authorization to 16 Q. Right.
17 switch? 17 A. As the chief, I don't remember how
18 A. Yes. That's what this says. 18 much of it -- and I think I said earlier, I am
19 Q. Right. 19 reasonably sure that we had to go over -- over
20 A. And incidentally, this one -- I wasn't 20 this with the secretary, and go up on the hill
21 the chief at the time, I was deputy chief, is 21 and explain that to them. I can't imagine that
22 initialed by the chief at the time, Joe 22 wasn't done. I don't have memory of how that
23 Bratton, and that looks like this signature. 23 was done, but we had instruments in my office
24 So yes, I would have seen it probably before he 24 of the Chief of Engineers to do that on a daily
25 did. 25 basis.
28 (Pages 106 to 109)

Page 110 Page 112
1 Q. All right. 1 Continuing objection to the fact
2 A. The Congress was not going to be 2 that you're seeking discovery in a
3 fooled by this or surprised by this. 3 case that's dismissed.
4 Q. Exactly. But I guess I want to 4 MR. BRUNO:
5 understand the meaning of some words. This 5 I have already explained it to
6 letter refers to re authorization. That's 6 you, and then when I explained it to
7 different from just telling the Congress what 7 you, you said I was talking too much.
8 you're doing, isn't it? 8 So I'm all out. Okay? I tried to
9 A. That is. 9 respond, and that's not acceptable,
10 Q. All right. Re authorization is a vote 10 and now you're just trying to
11 of the Congress. 11 interject some more words because I
12 A. Is formally going to the Congress and 12 know that you're trying to influence
13 say, we need another authorization, yes. 13 the witness, but I don't think this
14 Q. Exactly. So when I say you, when you 14 man --
15 were the Chief of the Engineers, decided that 15 MR. STONE:
16 you did not need to go to the Congress to 16 I'm not trying to influence the
17 obtain a re authorization in order to switch 17 witness.
18 from the barrier plan to the high level plan. 18 MR. BRUNO:
19 Isn't that true? 19 I don't think he's going to be
20 A. That's not what we talked about 20 influenced. Okay? From what I've
21 earlier. And I think that probably is true but 21 observed it's not going to work.
22 I'm not sure. All I'm telling -- all I related 22 Okay? So stop it.
23 was that yes, when I was the chief I did say, 23 MR. STONE:
24 okay, we're going to go to the high level plan. 24 And I'm entitled to tell you that
25 That didn't mean, okay, we're not going to tell 25 this is not an appropriate line of
Page 111 Page 113
1 the Congress or we're not going to have the 1 questions.
2 Congress bow to the change. 2 MR. BRUNO:
3 Q. And I didn't suggest that you did. 3 No. You're entitled to say
4 All I suggest was, within the meaning of the 4 objection. That's all you're entitled
5 definition of re authorization, you decided 5 to do is to say objection, relevance,
6 that you did not need to go to Congress to 6 and move on.
7 obtain a re authorization in order to make the 7 We're almost -- you know, this
8 decision to switch from the barrier to the high 8 foolishness just keeps us from
9 levee. 9 finishing. I'm so close to finishing
10 A. That's what I'm not accepting. I 10 it's silly.
11 don't know if that's what we decided or not. I 11 MR. STONE:
12 just know we decided that the Corps was going 12 Let me know when you're finished
13 to agree. Whether that went for a 13 and I'll state my position on the
14 re authorization or not, I have no memory of 14 record.
15 that. It could have even happened after my 15 MR. BRUNO:
16 watch. 16 You've already stated your
17 MR. STONE: 17 position on the record. You said
18 I've let this line of questions 18 irrelevant. And I said fine. In
19 run, and if you're not played out yet 19 fact, I said you don't have to say it
20 you can go ahead. But once again -- 20 anymore, I'll allow the record to
21 MR. BRUNO: 21 reflect that it's continuing.
22 Richard, it's noted for the 22 MR. STONE:
23 record. Please. It's noted and you 23 Then you understand my position.
24 can make it continuing. 24 MR. BRUNO:
25 MR. STONE: 25 I've understood your position for
29 (Pages 110 to 113)

Page 114 Page 116
1 quite some time now. And I think in 1 secretary's general counsel, who has a person
2 previous depositions I've said to you 2 who works with the assistant secretary, those
3 and your compadres, you don't have to 3 people would have been involved in this. And I
4 continually say the word objection, 4 don't know how they came out on it. If the
5 and when a party agrees that it's 5 secretary, meaning the assistant secretary, and
6 continuing it means you don't have to 6 the Office of Counsel and the Pentagon had
7 say it over and over and over again 7 said, hey, you got to go back for
8 because it's intended to just 8 authorization, we would have gone back for
9 interrupt the thought process of the 9 authorization. In the meantime, what I had
10 questioner and the witness. We all 10 signaled is, okay, we're going to lean in the
11 know that. 11 way of going with the high level plan, we're
12 EXAMINATION BY MR. BRUNO: 12 not going to fight this business of the barrier
13 Q. Now, wherever I was -- General, 13 plan any further. That's all that was, and
14 forgive me, I was so close to the end, and now 14 that's all my letter said.
15 I've been put off by counsel, which is 15 Q. Right. So who has the final
16 unfortunate. 16 decision-making authority to decide we go get
17 Let's see. Where was I? I want to 17 re authorization or we don't really need to; is
18 make sure that I didn't misunderstood you is 18 that the Secretary of the Army?
19 what I was doing. 19 A. That's the Secretary of the Army with
20 As you sit here today, do you recall 20 the OMB, and sometimes with somebody over in
21 whether or not the Corps sought a 21 the White House besides the OMB.
22 re authorization from the Congress in order to 22 Q. Okay. All right. General, what's a
23 switch from the barrier plan to the high level 23 post-authorization change? If you know.
24 plan? 24 A. Well, I can't give you a definition of
25 A. I do not. 25 it, but I know what it means to me is -- or
Page 115 Page 117
1 Q. Okay. All right. 1 what is meant to me is a change that's made
2 A. Either from what I saw here today or 2 after the authorization. It's a change of
3 from my memory of the matters at the time. 3 enough moment that it would require us going
4 Either way, I don't remember if we decided, we, 4 back to the Congress is what goes along with
5 that includes the assistant secretary, going 5 that. But I don't know that. I'm pretty sure
6 back to the Congress for -- we might have gone 6 that's what it is, but I'm giving you a Heiberg
7 back. I don't remember that, though. 7 guess right now.
8 Q. All right. Fair enough. But in terms 8 Q. That's fine. What, if you know,
9 of what you did or did not do, I need to 9 General, is a post-authorization change
10 clarify that. As the chief, what you did was 10 notification report?
11 you authorized the switch from the barrier plan 11 A. Something that goes to the Congress of
12 to the high level plan. Right? 12 the United States.
13 A. I authorized us moving ahead with 13 Q. Who writes it?
14 that. Whether it also required Congressional 14 A. Ultimately, probably the signature
15 authorization, further, is the point I made a 15 that goes over it would be either the Assistant
16 couple of times now, I don't know. That might 16 Secretary or the Secretary of the Army. But it
17 have been PS. 17 would be cleared through the Office of
18 Q. I understand. Who had the -- who 18 Management and Budget and the White House
19 ultimately has to decide whether Congressional 19 before it goes.
20 re authorization is necessary? Other than the 20 Q. All right. It's a?
21 Commander. 21 A. It's that important.
22 A. Right. 22 Q. And so clearly it's a writing.
23 Q. Other than the deputy chief. I'm 23 A. Yes.
24 sorry. Other than the Chief himself. 24 Q. Do you remember a John Wall?
25 A. The assistant secretary, the 25 A. Very well.
30 (Pages 114 to 117)

Page 118 Page 120
1 Q. And what was John Wall 's role at that 1 that you know everything that's in it and under
2 time? 2 it and that it's founded on. And that was
3 A. Well, it should say down at the bottom 3 always my concern about the high level plan
4 under his name. He was one of the Directors of 4 would involve levees that have more
5 Civil Works. 5 opportunities for failure, not less. The
6 Q. Right. But -- well, this letter at 6 higher you go, the broader the levee, the more
7 least says Major General? 7 likely you're going to have problems. That's
8 A. He was then Director of Civil Works, 8 exactly what I was referring to, that you
9 if he's Major General. He later became the a 9 wouldn't need to have such high protection if
10 three-star. 10 you had lower -- lower level levees.
11 Q. Right. Do you remember having seen a 11 Q. Sure.
12 post-authorization change notification report 12 A. That was part or my whole problem with
13 while you were the Chief? 13 the high level plan.
14 A. Don't remember that. You probably 14 Q. Well, the thing that's troubling is
15 have a date on that, so. 15 that the Corps, and IPET itself, takes the
16 Q. Um -- well, in fairness, I don't know 16 position that those levees didn't really fail,
17 that this is the report. It says, I have 17 they performed exactly as they were designed.
18 reviewed the. 18 A. Most of those along Pontchartrain did
19 A. Okay. 19 perform as designed.
20 Q. So it's referring to something else. 20 Q. Even the ones that fell apart
21 I can't tell whether -- all right. Just a few 21 performed as designed, because it was
22 more questions and I'll be done. 22 understood that there was no need for armoring
23 In your letter to the editor, you 23 the back side and that the levees were built to
24 refer to the engineering failures. 24 a certain height relative to an understanding
25 What were you referencing, General? 25 of what the standard project hurricane was, and
Page 119 Page 121
1 And I have it if you want to see it. 1 the water was simply higher than the height and
2 A. Yeah. I know. I know the letter. 2 that the levees then failed as they were
3 Q. You know the letter. 3 designed to fail.
4 A. The engineering failures would be 4 A. Let me say this about that: The Corps
5 failures of, um -- such as -- not only, but 5 of Engineers I am aware of, not as a Corps of
6 such as a flood wall leaking or pouring or 6 Engineers person, but the Corps of Engineers
7 whatever, or a levee leaking or failing. 7 had a couple of studies done. The most
8 That's what I was referring to. 8 important of those studies was called the IPET
9 Q. Were you suggesting in this letter 9 study, I don't even know what it stood for now,
10 that there were engineering failures that had 10 with participation by outsiders of the Corps,
11 anything at all to do with the flooding of New 11 by the association of civil engineers, American
12 Orleans during Hurricane Katrina? 12 Association of Civil Engineers, ASCE, American
13 A. That's what was in my mind when I 13 Society of Civil Engineers, and others, and
14 wrote that letter, yes. 14 those studies did show that there were some
15 Q. Do you think the Corps of Engineers 15 design failures. But my understanding of those
16 was responsible for those engineering failures? 16 is part of it was because there were things
17 A. Um -- I'm not equipped to handle that. 17 that happened under the ground that you
18 Yes, I think so, but -- but what do you mean by 18 probably would have a great deal of problem --
19 responsible? Meaning having to go out and pay 19 you can't point to someone and say, he did a
20 for it? No, I don't mean that. 20 failure.
21 Q. Oh, no, no. I mean in terms of the 21 Q. Right.
22 person who did the design that failed. That's 22 A. I don't think that was the case.
23 what I mean by responsible. 23 Q. All right.
24 A. Failures of a levee can be because you 24 A. But I'm saying all this from a
25 can never have a levee surveyed to the point 25 distance, because I've not been in the Corps of
31 (Pages 118 to 121)

Page 122 Page 124
1 Engineers since 1988. 1 REPORTER'S CERTIFICATE
2 Q. All right, General. Thank you very 2 I, JOSEPH A. FAIRBANKS, JR., CCR, RPR,
3 much for your time. I really appreciate it. 3 Certified Court Reporter in and for the State
4 A. Okay. 4 of Louisiana, do hereby certify that the
5 MR. STONE: 5 aforementioned witness, after having been first
6 After we go off the record let's 6 duly sworn by me to testify to the truth, did
7 talk about out the documents here. I 7 testify as hereinabove set forth;
8 would like to have come kind of -- 8 That said deposition was taken by me
9 MR. BRUNO: 9 in computer shorthand and thereafter
10 You can have whatever you want. 10 transcribed under my supervision, and is a true
11 MR. STONE: 11 and correct transcription to the best of my
12 Yeah. So we can just make a copy 12 ability and understanding.
13 of it. 13 I further certify that I am not of
14 14 counsel, nor related to counsel or the parties
15 15 hereto, and am in no way interested in the
16 16 result of said cause.
17 17
18 18
19 19
20 20
21 21
22 22
23 23 ____________________________________
24 24 JOSEPH A. FAIRBANKS, JR., CCR, RPR
25 25 CERTIFIED COURT REPORTER #75005
Page 123
1 WITNESS' CERTIFICATE
2 I, Elvin R. Heiberg, III, do hereby
3 certify that the foregoing testimony was given
4 by me, and that the transcription of said
5 testimony, with corrections and/or changes, if
6 any, is true and correct as given by me on the
7 aforementioned date.
8
9 ______________ _________________________
10 DATE SIGNED Elvin R. Heiberg, III
11
12 _______ Signed with corrections as noted.
13
14 _______ Signed with no corrections noted.
15
16
17
18
19
20
21
22
23 DATE TAKEN: April 29th, 2008
24
25
32 (Pages 122 to 124)


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LT. GENERAL ELVIN R.

HEIBERT, III 4/29/2008

IN RE: KATRINA CANAL BREACHES CIVIL ACTION

Deposition of LT. GENERAL ELVIN R.

JOHNS PENDLETON COURT REPORTERS 800 562-1285

27 (Pages 102 to 105)

28 (Pages 106 to 109)

29 (Pages 110 to 113)

30 (Pages 114 to 117)

31 (Pages 118 to 121)

32 (Pages 122 to 124)

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