2019-05-09 Harvey - Trial Testimony Day 4 (Vogler, Muic, Thomas, Soares) - FULL

1 IN THE UNITED STATES COURT OF FEDERAL CLAIMS
2
3
4 IN RE: UPSTREAM ADDICKS AND ) Master Docket No.
5 BARKER (TEXAS) FLOOD-CONTROL ) 17-9001L
6 RESERVOIRS. )
7 _________________________________)
8
9
10 Courtroom 11B
11 BOB CASEY UNITED STATES COURTHOUSE
12 515 Rusk Street
13 Houston, Texas 77002
14 Thursday, May 9, 2019
15 9:00 a.m.
16 Trial Volume 4
17
18
19 BEFORE: THE HONORABLE CHARLES F. LETTOW
20
21
22
23
24
25 DAVID M. LEE, RMR, CCR
803
Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 5/9/2019
1 APPEARANCES:
2 ON BEHALF OF THE PLAINTIFFS (IN RE UPSTREAM ADDICKS
3 AND BARKER (TEXAS) FLOOD-CONTROL RESERVOIRS:
4 BURNS CHAREST, L.L.P.
5 BY: DANIEL H. CHAREST, ESQ.
6 LYDIA A. WRIGHT, ESQ.
7 LARRY VINCENT, ESQ.
8 900 Jackson Street
9 Suite 500
10 Dallas, Texas 75202
11 (469) 444-5002
12 dcharest@burnscharest.com
13 lwright@burnscharest.com
14 lvincent@burnscharest.com
15
16 IRVINE & CONNER, L.L.C.
17 BY: CHARLES W. IRVINE, ESQ.
18 MARY CONNER, ESQ.
19 4709 Austin Street
21 (713) 533-1704
22 charles@irvineconner.com
23 mary@irvineconner.com
24
25
For The Record, Inc.

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1 APPEARANCES CONTINUED:
2 WILLIAMS, KHERKHER, HART, BOUNDAS, L.L.P.
3 BY: EDWIN A. EASTERBY, ESQ.
4 8441 Gulf Freeway
5 Suite 600
7 (713) 230-2200
8 aeasterby@williamskherkher.com
9
10 DUNBAR HARDER, P.L.L.C.
11 BY: LAWRENCE G. DUNBAR, ESQ.
12 10590 West Office Drive
13 Suite 2000
15 (713) 782-4646
16
17 VB ATTORNEYS
18 BY: VUK VUJASINOVIC, ESQ.
19 6363 Woodway Drive
20 Suite 400
22 (713) 224-7800
23 vuk@vbattorneys.com
24
25

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2 ON BEHALF OF THE DEFENDANT:
3 UNITED STATES DEPARTMENT OF JUSTICE
4 ENVIRONMENT & NATURAL RESOURCE DIVISION
5 BY: WILLIAM SHAPIRO, ESQ.
6 501 I Street
7 Suite 9-700
8 Sacramento, California 95814
9 (916) 930-2207
10 william.shapiro@usdoj.gov
11
14 BY: KRISTINE S. TARDIFF, ESQ.
15 53 Pleasant Street
16 Fourth Floor
17 Concord, New Hampshire 03301
18 kristine.tardiff@usdoj.gov
19
20
21
22
23
24
25

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4 BY: LAURA DUNCAN, ESQ.
5 601 D Street, N.W.
6 Third Floor
7 Post Office Box 7611
8 Washington, D.C. 20044
9 (202) 305-0466
10 (202) 305-0506 (Facsimile)
11 laura.duncan@usdoj.gov
12
13 UNITED STATES ARMY CORPS OF ENGINEERS
14 GALVESTON DISTRICT, OFFICE OF COUNSEL
15 BY: JAMES E. PURCELL, ESQ.
16 2000 Fort Point Road
17 Suite 369
18 Galveston, Texas 77550-1229
19 (409) 766-3822
20 james.e.purcell@usace.army.mil
21
22
23
24
25

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1 I N D E X
2
3 Witness: Direct: Cross: Redir: Recross: Vr Dire:
4 Vogler 811
5 Johnson-Muic 822 853 909
6 Thomas, III 916/945 1006 1053 943/949
7 951
8 Soares 1066 1095 1110
9
10 E X H I B I T S
11 Number: Marked: Admitted:
12 Joint:
13 4 857
14 9 857
15 10 857
16 28 896
17 33 877
18 35 908
19 98 823
20 99 823
21 101 824
22 102 824
23 128 977
24 134 979
25 263 1068

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1 E X H I B I T S (Continued)
3 Plaintiffs':
4 20 1040
5 56 825
6 74 835
7 84 833
8 707 1025
9 1338 1052
10 1406 847
11 1644 1014
12 1658 1044
13 1904 812
14 2036 1072
15 2036-16 1074
16 2036-17 1074
17 3000 1036
18
19 Defendant's:
20 45 903
21 50 887
22 64 904
23 84 894
24 86 882
25 94 873

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3 Defendant’s:
4 95 875
5 149 901
6 152 900
7 153 899
8 255 973
9 649 989
10 705R 1102
11 795 1109
12 800 867
13 801 867
14 841 1097
15 842 1097
16 895 (first page) 940
17 896 (first two pages) 950
18 896 (page 4) 956
19
20 Soares’:
21 7 1084
22 49 1086
23 54 1091
24 56 1090
25 58 1087

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3 Soares’:
4 59 1092
5 63 1089
6 64 1089
7 70 1086
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

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1 Houston, Texas
2 May 9, 2019
3 9:01 a.m.
4
5 P R O C E E D I N G S
6 IN OPEN COURT:
7 THE COURT: Please be seated.
8 Good morning.
9 Mr. Vogler, welcome back.
10 THE WITNESS: Thank you.
11 THE COURT: Mr. Amistead.
12 MS. TARDIFF: Your Honor, I don't think we
13 finished up yesterday, but we pass the witness.
14 MARK VOGLER,
15 called as a witness herein, having been previously
16 duly sworn, was examined by counsel and testified as
17 follows:
18 REDIRECT EXAMINATION
19 BY MR. EASTERBY:
20 Q. Mr. Vogler, yesterday there was some
21 discussion about these two channels that flow on to
22 government-owned land.
23 Do you recall that?
24 A. Yes, sir.
25 Q. And Matt, can you put up DX868 which was

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1 admitted into evidence?

2 As I believe, we established yesterday,
3 Mr. Vogler, these channels do extend on to
4 government-owned land; correct?
5 A. That's correct.
6 Q. Okay. Matt -- actually, Mr. Vogler, let me
7 hand you what's been marked for identification as
8 Plaintiffs Exhibit 1904.
9 A. (Witness complies.)
10 Q. And 1904 is a Department of the Army easement
11 for right-of-way, Bates stamped USACE II 01394010.
12 Do you see that?
13 A. Yes, sir.
14 Q. And do you see -- are you familiar with this
15 easement, Mr. Vogler?
16 A. I believe this is the easement for Willow
17 Fork of Buffalo Bayou inside of the Corps' property.
18 Q. Yes, sir. Are you familiar with it?
19 A. I have read it, yes, sir.
20 MR. EASTERBY: We offer Plaintiffs' Exhibit
21 1904.
22 MS. TARDIFF: No objection.
23 THE COURT: Admitted.
24 (Plaintiffs' Exhibit 1904 was received
25 in evidence.)

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1 Q. BY MR. EASTERBY: And Mr. Vogler, it appears

2 to me that this easement was signed by Erwin D.
3 Cooper on or about May 6th of 1986; correct?
4 A. Yes, sir.
5 Q. So Mr. Vogler, is it your understanding that
6 Fort Bend County has a responsibility of maintaining
7 that tributary?
8 A. Yes, sir.
9 Q. Including the area that's on government-owned
10 land?
11 A. Yes, sir.
12 Q. And since Harvey, has Fort Bend County
13 removed sediment from that channel, including the
14 government-owned land portion?
15 A. We just started.
16 Q. Why has it taken this long to get that work
17 started?
18 A. Well, we were removing dirt outside the
19 reservoir. Somebody calls the Corps of Engineers on
20 us and said we were in violation of the Clean Waters
21 Act. We were only doing maintenance work, and we
22 claim that that was exempt under the Clean Waters Act
23 from a 404 permit requirement. The enforcement
24 division at the Galveston District disagreed with
25 that and said they needed to investigate us. We

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1 asked if we could get the investigation on the work

2 that we were doing, running concurrently with an
3 environmental review, that would allow us to go
4 inside the reservoir and do work within there. The
5 enforcement division had said no, they couldn't do
6 it, and that we were in violation. Nothing else
7 could be done until the violation was resolved.
8 Several months later, after we contacted
9 our Congressman and expressed our concerns with that,
10 they changed their attitude and then they began to do
11 an environmental assessment to be done for the work
12 we were proposing within the reservoir boundary, and
13 that was completed, and we finally got permission to
14 go into the reservoir and we got a contractor working
15 there now.
16 Q. Yes, sir. We were out there yesterday on a
17 site visit, and we looked at Willow Fork diversion
18 channel, which seemed to be a bit elevated, but both
19 of those eventually come into the same place within
20 the reservoir; right?
21 A. Yes, sir.
22 Q. Is it correct that if there is sediment in
23 that channel it reduces its outflow capacity?
24 A. It does restrict its ability to convey flows
25 into the reservoir.

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1 Q. And any estimation as to when the work will

2 be completed?
3 A. Six months.
4 Q. Yes, sir.
5 Now yesterday, counsel showed you
6 Defense Exhibit 137, admitted as conformed, and could
7 you put up, please, Matt, the page that's FB503?
8 So it states on this page, Mr. Vogler,
9 from the drainage district, "Provide approval letter
10 from Willow Fork Drainage District engineer with
11 statement that outfall drainage capacity is available
12 for this plat."
13 Do you see that?
14 A. Yes, sir.
15 Q. And then it says, "The plat shall have the
16 engineer's seal and signature."
17 Do you see that?
18 A. Yes, sir.
19 Q. What does outfall drainage capacity mean?
20 A. That there is downstream capacity for flows
21 that this development or section of the development
22 would be creating and putting into this outfall
23 channel.
24 Q. And having an engineer's seal and signature
25 on the plat, what does that signify, given your

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1 experience and knowledge as a Professional Engineer?

2 A. That signifies that the design of that
3 subdivision and all its infrastructure were done in
4 good standing, good standings according to
5 engineering protocol.
6 Q. All right. So Mr. Vogler, assume with me, if
7 you would, that those channels just stopped at
8 government-owned land. They didn't continue at all,
9 they just stopped right there. Do you think they'd
10 have adequate outfall capacity if that was the case?
11 MS. TARDIFF: Objection; calls for
12 speculation.
13 MR. EASTERBY: He's an engineer.
14 THE COURT: I'm sorry, Mr. Easterby.
15 I'm sorry. I want to use your first
16 name as your last name, but in any event,
17 Mr. Easterby, would you rephrase your question,
18 please? It's a hypothetical. And allow the witness
19 to answer it based on his prior context. But go
20 ahead and rephrase the question.
21 MR. EASTERBY: Yes, sir.
22 Q. So we saw in the prior exhibit the language
23 about -- the statement about outfall drainage
24 capacity is available; correct?
25 A. Yes, sir.

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1 Q. If those channels just stopped at

2 government-owned land and didn't go in any further,
3 do you believe it would have adequate outfall
4 drainage capacity for that kind of design?
5 MS. TARDIFF: Same objection.
6 THE COURT: Overruled.
7 THE WITNESS: If it would not have adequate
8 capacity for that design, we would have required the
9 developer to do additional detention/retention or
10 something. We couldn't approve the plat based on
11 that circumstance or the example you just gave me.
12 Q. BY MR. EASTERBY: Now, Mr. Vogler, after the
13 Tax Day storm in 2016, were you and the drainage
14 district kind of out and about in these areas that
15 are around Barker Reservoir after that storm?
16 A. Yes, sir, we were working in there to try to
17 remove the silt.
18 Q. Did you hear about any structure flooding in
19 any of those subdivisions that are adjacent to Barker
20 after the Tax Day 2016 storm?
21 MS. TARDIFF: Objection; hearsay.
22 THE COURT: If you will substitute "know
23 about" for "hear," Mr. Easterby, you may ask the
24 question.

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1 Q. Mr. Vogler, do you know of any structure

2 flooding in the residences that are adjacent to the
3 Barker Reservoir after that Tax Day 2016 storm?
4 A. No, sir.
5 Q. Are you aware of any time prior to Harvey
6 there's been structure flooding in those areas?
7 A. Not as a result of the capacity of Willow
8 Fork or the diversion channel being constricted, no,
9 sir.
10 Q. Okay. Yesterday there was some discussion
11 about Joint Exhibit 46.
12 Can you please put that up, Matt?
13 This is that Kelliwood Courts section 1
14 plat; is that correct?
15 A. Yes, sir.
16 Q. And I think it's dated in 1992.
17 A. Yes, sir.
18 Q. And then we saw in JX49 the letter from
19 Mr. Gerken dated March 22nd, 1993; correct?
20 A. Yes, sir.
21 Q. So Mr. Vogler, is it correct that Fort Bend
22 County Drainage District learned of the increased
23 pool elevations after it had first platted that
24 Kelliwood subdivision we just looked at?
25 A. Yes, sir.

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1 Q. And what does that mean? It's already been

2 platted. Has there been any work done or do you
3 know?
4 A. I don't know what it progressed to the point
5 when the plat was approved, but I do know that once
6 we approved the plat and all the numbers were
7 established on the plat, that is our only chance to
8 establish requirements for minimum slab requirements
9 and drainage requirements for that subdivision.
10 Q. All right. You can't go back in time and
11 redo it?
12 A. We can't go retroactively, no, sir.
13 Q. And so is it correct that Fort Bend County
14 Drainage District learned of those increased
15 elevations from its own independent investigation?
16 A. Once we heard the information from
17 Mr. Crocker, we did investigate and found out that
18 that was in fact the case, yes, sir.
19 Q. So that -- that information about the
20 increased elevations did not come from the Corps of
21 Engineers?
22 A. No, sir.
23 MR. EASTERBY: Mr. Vogler, thank you very
24 much for being here today. I appreciate you've got
25 some work to do, so I will pass the witness at this

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1 time.
2 THE COURT: Ms. Tardiff. We still have the
3 open issue of the admissibility of JX49.
4 MR. EASTERBY: Your Honor, she passed the
5 witness, so I assume it's off the table.
6 THE COURT: No, it's not.
7 MS. TARDIFF: Your Honor, we're not looking
8 to revisit JX49 at this point, if you give me one
9 moment to confirm.
10 THE COURT: Say again?
11 MS. TARDIFF: I'm sorry, your Honor. We are
12 satisfied with the exhibits we got in yesterday, so
13 we are not looking to revisit Joint Exhibit 49, but
14 give me one minute, please.
15 THE COURT: Yes. Let me just note for the
16 record that I do allow recross sometimes after
17 redirect, Mr. Easterby.
18 MR. EASTERBY: So she gets another chance,
19 but I don't?
20 THE COURT: That can happen, depending on
21 what happens.
22 MR. EASTERBY: I'm just making sure I was
23 understanding what the Court said.
24 MS. TARDIFF: Your Honor, I have no further
25 questions, so that resolves that issue.

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1 THE COURT: May the Court excuse Mr. Vogler?

2 MS. TARDIFF: Yes, your Honor.
3 THE COURT: Mr. Vogler, thank you very much,
4 and especially for coming back this morning. It's
5 really appreciated.
6 MR. EASTERBY: Thank you, Mr. Vogler.
7 THE COURT: Mr. Charest.
8 MR. CHAREST: Plaintiffs would call Paula
9 Johnson-Muic.
10 THE COURT: I take it this is a double barrel
11 surname; is that correct?
12 MR. CHAREST: Yes, sir. Yes, sir.
13 THE COURT: Ms. Johnson-Muic, am I saying
14 that halfway correctly?
15 THE WITNESS: Johnson-Muic.
16 THE COURT: Muic. Okay.
17 If you will approach Mr. Charest, just
18 get a little beyond him, and raise your right-hand to
19 be sworn as a witness.
20 Ms. Johnson, if you would please, in
21 your testimony, tell the truth insofar as you
22 possibly can, and the whole truth, so help you God?
23 THE WITNESS: I will.
24 THE COURT: Thank you.
25 PAULA JOHNSON-MUIC,

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1 called as a witness herein, having been first duly

2 sworn, was examined by counsel and testified as
3 follows:
4 DIRECT EXAMINATION
5 BY MR. CHAREST:
6 Q. Good morning, Ms. Johnson-Muic.
7 A. Good morning.
8 Q. We're going to do some blocking and tackling
9 first to get some things in the record. So right off
10 the bat, can you just tell the Court first about your
11 job with the Corps?
12 A. Yes, sir.
13 My name is Paula Johnson-Muic, and I'm
14 the chief of real estate for the Southwestern
15 Division of the Corps of Engineers in Dallas, Texas.
16 Q. And the area of your work includes the
17 Addicks and Barker dams and reservoirs; correct?
18 A. Yes, sir.
19 Q. And you were the Corps' representative for
20 the United States during your deposition in this
21 case?
22 A. Yes, sir.
23 Q. And specifically you would relate as it
24 pertains to real estate issues?
25 A. Yes, sir.

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1 Q. Great.
2 If you wanted to see them, you can see
3 them, but let me put up on the screen Joint Exhibits
4 98 and 99, which are boundary surveys that we
5 discussed during the deposition.
6 Do you recall these?
7 A. Yes, sir.
8 Q. All right. And is it right to say that the
9 Joint Exhibit 98 and 99 are the most recent boundary
10 surveys of government-owned lands in and around the
11 Addicks and Barker reservoirs?
12 A. Yes, sir, to my knowledge, they are.
13 MR. CHAREST: Your Honor, we offer Joint
14 Exhibit 98 and 99 into evidence.
15 MS. DUNCAN: No objection.
17 MR. CHAREST: Am I correct that there is no
18 objection?
19 THE COURT: I'm sorry. Admitted.
20 (Joint Exhibits 98 and 99 were received
21 in evidence.)
22 Q. BY MR. EASTERBY: Thank you.
23 The next two are Joint Exhibits 101 and
24 102, please. And these are, Ms. Johnson-Muic, the
25 metes and bounds descriptions that we reviewed during

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1 your deposition.
2 Do you recall that, ma'am?
3 A. Yes.
4 Q. And are these the most recent metes and
5 bounds descriptions for in and around the Addicks and
6 Barker reservoirs on government-owned land?
7 A. To my knowledge, yes.
8 MR. CHAREST: Great.
9 We would offer, your Honor, Joint
10 Exhibits 101 and 102 into evidence.
13 (Joint Exhibits 101 and 102 were
14 received in evidence.)
15 MR. CHAREST: Thank you.
16 THE COURT: You may proceed.
18 The next Exhibit is 56. I'm sorry
19 Upstream Plaintiffs' 56.
20 Q. Could you zoom in on the title, please, Matt?
21 Ma'am, in your capacity involving real
22 estate for the Corps, are you familiar with this
23 document?
24 A. Yes, I am.
25 Q. All right. And describe generally for the

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1 Court what it is, please.

2 A. This is a chapter from a real estate handbook
3 and engineering regulation, which is a policy
4 document in the Corps of Engineers. In this
5 particular chapter, it is about civil works projects
6 as well as full federal projects.
7 MR. CHAREST: You might pull the mic closer
8 to you. Thank you very much.
9 Q. And the civil works projects would cover the
10 Addicks and Barker dams and reservoirs; correct?
11 A. Yes, sir, it's a civil works project.
12 Q. All right.
13 MR. CHAREST: Your Honor, we offer
14 Plaintiffs' 56 into evidence.
17 (Plaintiffs' Exhibit 56 was received in
18 evidence.)
19 Q. BY MR. CHAREST: All right. Thank you.
20 Am I right to say that the government
21 has no fee title in any of the test properties?
22 A. I'm sorry, could you repeat that?
23 Q. The government owns no property interests in
24 any of the 13 test properties that are before the
25 Court today?

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1 A. Yes; that's correct.

2 Q. And that's true for fee interest? There is
3 no fee interest?
4 A. Yes, there is none.
5 Q. The government owns no easements in direct
6 or -- I'm sorry, permanent or temporary; correct?
7 A. Correct.
8 Q. And the government owns no -- no fee title of
9 any lands outside those government-owned lands that
10 we saw within the Addicks and Barker reservoirs; is
11 that correct?
12 A. Yes.
13 Q. And similarly, the government owns no
14 easement, permanent or temporary, outside of the
15 government-owned lands, but within the extent of the
16 Addicks and Barker reservoirs?
17 MS. DUNCAN: Objection. I think it's vague
18 as to what the reservoir is in relation to
19 government-owned lands. That hasn't been
20 established.
21 THE COURT: Sustained.
22 Mr. Charest, you're going to have to
23 define the reservoir.
24 MR. CHAREST: Okay. Let me try to do a
25 different tack there then.

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1 Q. Aside from the government-owned lands that

2 were depicted in Joint Exhibits 98 and 99, does the
3 government own any property interest upstream of the
4 Addicks and Barker reservoir -- Addicks and Barker
5 dams?
6 A. No, we do not.
7 Q. Okay. With respect to the governmental
8 decision to impound runoff water on private land, is
9 it true to say that the government does not acquire
10 property interests everywhere that the government
11 actually puts water?
12 A. Well, I don't know what you mean by the first
13 part there. The government's decision to impound
14 land -- or water.
15 Q. Do you agree that, generally, that we,
16 meaning the Corps, do not acquire property interests
17 everywhere we -- the Corps -- put water?
18 A. I'm having troubling with what you mean by
19 "we put water."
20 Q. I'm reading from your testimony, so I'm just
21 trying to see if -- do you remember saying those
22 words to me during the deposition?
23 A. I don't remember those exact words.
24 Q. Do you remember talking about the decision of
25 whether or not the Corps can put water on private

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1 property that it does not own?

2 A. I remember you asking that, yes.
3 Q. And do you deny that you said those words to
4 me?
5 MS. DUNCAN: Objection.
6 THE WITNESS: No, I just don't remember those
7 exact words.
8 We do not acquire land everywhere that
9 water goes. But I can't speak to who puts the water
10 there. That's beyond my ability.
11 Q. BY MR. CHAREST: Can you play number 6,
12 please, Matt?
13 MS. DUNCAN: Objection. Improper
14 impeachment.
15 I don't think we've established what
16 exactly was asked and what has not been answered at
17 this point.
18 THE COURT: The Court actually agrees,
19 Ms. Duncan.
20 Mr. Charest.
21 MR. CHAREST: Sure. Okay.
22 Q. My question is, ma'am, is that you've taken
23 the position saying that you think that the Corps can
24 place water on property, and it needs a legal opinion
25 to do so. I want to know the basis for you thinking

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1 that the Corps can place water on property at all.

2 A. Well, I don't know what you mean by the Corps
3 placing water, but I think what you're asking me is
4 everywhere water goes, something we have to acquire
5 property for, and I would answer that no.
6 Q. Okay. And when the Corps -- in the
7 deposition you knew what I meant by placing water;
8 right? Or you didn't ask me that question at least;
9 correct?
10 A. I may not have, yes.
11 Q. All right. So now that we understand what
12 we're talking about, we're talking about water being
13 retained by a dam built by the Corps. Are we on the
14 same page? Do you understand that's what I'm asking
15 about?
16 A. Well, here's my struggle. When the water
17 goes places, I don't know if it's because of the dam
18 or for some other reason, so I'm having trouble with
19 that part of your question.
20 Q. You are now, but you didn't then; right?
21 A. Well, I don't remember what I said exactly
22 during the deposition.
23 Q. Okay. Do you agree --
24 THE COURT: Mr. Charest, would you ask
25 Ms. Johnson-Muic the exact same question you asked at

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1 the deposition?
2 MR. CHAREST: Yes, sir.
3 Q. I will do the exact same thing.
4 I want to know what base -- what is the
5 basis for the Corps to even think the Corps can place
6 water on private property in the first place. Tell
7 me the answer, please.
8 A. When a project is analyzed, we analyze where
9 we believe the project will go because -- the water
10 will go because of the project. And wherever it
11 goes, that equates to the taking of someone's
12 property, and we acquire that property. If it is not
13 to the level of taking, then we do not acquire that
14 property. That is the analysis that we use.
15 Q. You say it "rises to the level of a taking,"
16 meaning that's the Corps' assessment of the legal
17 condition at the time; correct?
18 A. Right.
19 Q. So it's the Corps' guess as to what the
20 courts will ultimately do; correct?
21 A. Well, we have certain parameters in which we
22 have to buy the land, where physical structures go,
23 lands we know will be under water, things such as
24 that. But where you're talking about low frequencies
25 or other kinds of issues like that, those are all

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1 factors that go into the analysis of whether we must

2 acquire something or not, as a matter of law.
3 Q. When you say "as a matter of law," you're
4 talking about a matter of the Corps' view of
5 balancing the risk of the flood versus its view of
6 the likelihood of being held to be -- held to have
7 taken that property by a Court; correct?
8 A. Well, I wouldn't phrase it that way. I think
9 we're looking at how, over time, it's been
10 established that certain lands need to be acquired
11 applying that standard to our project.
12 Q. And the determinations of whether or not to
13 place water on private property, or may, after an
14 analysis -- the determinations of whether or not to
15 place water on private property are made after the
16 analysis that you're talking about; correct?
17 A. I don't know.
18 Q. Okay. Do you remember saying to me that the
19 determinations that we're talking about are made
20 after an analysis, based on facts, the law, and many
21 other factors and policies?
22 A. I mean after that analysis we decide what to
23 acquire, and then if the project is authorized, we
24 construct it.
25 Q. But fundamentally, the decision to place

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1 water on property is not one the Corps does by

2 mistake in the situation of an upstream reservoir;
3 correct?
4 A. I'm not part of that decision, so I'm not
5 sure I know how to answer that.
6 Q. Okay.
7 Prior to 1953, the government followed a
8 policy of acquiring fee title to most reservoir lands
9 up to the top of the flood control pool, which it
10 defined as the highest level that could be flooded as
11 a result of the project as designed; correct?
12 A. Can you tell me what you're reading from?
13 Q. My notes.
14 A. Oh.
15 Well, prior to 1953, we did not have
16 written policy. At least we couldn't find any
17 written policy at the time this project was done.
18 Q. So you and I talked about a policy
19 located -- Matt, show 84, please.
20 You've seen this document before; right,
21 ma'am?
22 A. Is there a date on this?
23 Q. There is a date on the bottom right-hand
24 corner that says February 3rd, 1969.
25 A. You may have shown this to me during my

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1 deposition.
2 Q. Right, and we discussed it.
3 A. I think so.
4 Q. And it addresses land acquisition policies
5 that were in place by the Corps; correct?
6 A. I believe it does, yes.
8 Plaintiffs' 84 into evidence.
12 evidence.)
13 Q. BY MR. CHAREST: All right.
14 Turn, Matt, to page 5 of the text, the
15 top paragraph.
16 Can you read the first sentence to
17 yourself and confirm whether you have any information
18 whatsoever to refute what the GAO says the Corps'
19 policy was prior to 1953?
20 A. No.
21 Q. Thank you. And you were the person that, on
22 behalf of the Corps, testified as to all of the
23 policies that the Corps had in place throughout the
24 history of time; correct? For this case?
25 A. I guess I was.

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1 Q. Yes, ma'am. All right.

2 In the original construction of the
3 Addicks and Barker dams, the government's decision to
4 acquire less than the design pool level was based on
5 a cost/benefit analysis done by the government;
6 correct?
7 A. Could you repeat that? I missed the first
8 part.
9 Q. In the original construction of the Addicks
10 and Barker dams, the government's decision to acquire
11 less than the designed pool level was based on a
12 cost/benefit analysis by the government; correct?
13 A. I think that was part of the reason why, yes.
14 Q. I'm sorry?
15 A. I think that was part of the reason why, yes.
16 Q. Part of the reason.
17 And in the original construction of the
18 Addicks and Barker dams, the government accepted the
19 risk of inundating private land when it set the
20 original takings line for the Addicks and Barker
21 reservoirs; correct?
22 A. Yes.
23 Q. And every decision to not acquire lands when
24 you're talking about land upstream of a dam involves
25 accepting risk of flooding to some extent; correct?

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1 At least to the extent the dam could hold water to

2 that level.
3 A. Yes.
4 Q. At the time upstream land acquisition in the
5 Addicks reservoir -- let me start again, because I
6 mispronounced a word for you.
7 At the time of the upstream land
8 acquisition at the Addicks reservoir, the government
9 paid an average of just over $94 an acre for the land
10 it acquired; correct?
11 A. I assume you're reading that from one of the
12 documents. I don't remember that dollar amount.
13 Q. Okay. Matt, 17, please. Actually just put
14 up Plaintiffs' 74, please.
15 And turn, if you would, Matt to --
16 Well, first off, do you remember talking
17 about this document during your deposition, ma'am?
18 A. Yes, sir.
20 Plaintiffs' 74 in evidence.
24 evidence.)
25 Q. BY MR. CHAREST: Turn if you would, Matt, to

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1 USACE224397.
2 And the average price for the
3 reservoirs, which is the middle column, the 9422, and
4 the next one down for Barker, Ms. Johnson-Muic.
5 You see on the screen up to the right,
6 Matt. Now down. There. 94 there, and then 8178.
7 Ms. Johnson-Muic, on the screen you will
8 see the average value for Addicks and the land
9 associated with Addicks and Barker reservoirs, and
10 read those into the record, please.
11 A. Sir, this is the first appraisal, so these
12 are planning estimates. Is that what you're asking
13 me to read?
14 Q. Did the Corps -- was the average value,
15 meaning the per acre value for Addicks $94 an acre
16 for the reservoirs portion. That's my question to
17 you.
18 A. In the planning stage, yes.
19 Q. Okay. Do you recall me asking that question
20 to you in your deposition?
21 A. Yes.
22 Q. And you recall answering differently than you
23 are today?
24 A. No, sir.
25 Q. Matt, please.

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1 MS. DUNCAN: Objection. Can I get a page and

2 line?
3 THE COURT: I'm sorry, say again.
4 MS. DUNCAN: Can I get a page and line of the
5 deposition, please?
6 THE COURT: Just a moment. Did you ask
7 exactly the same question?
9 THE COURT: All right. You may do so.
10 MR. CHAREST: It's page 75, lines 11 to 14.
11 THE COURT: Tell Ms. Duncan.
12 Thank you.
13 Mr. Charest, I think we're ready.
14 Q. BY MR. CHAREST:
15 (Reading:
16 "The average value, meaning the per
17 acre value for Addicks was $94 an acre;
18 right? For the reservoir portion?"
19 THE WITNESS: "$94.22"
20 Q. BY MR. CHAREST: And 22 cents; right?
21 A. That's true in the gross appraisal. I don't
22 think that's what you asked me today.
23 Q. I literally read what I asked you.
24 MS. DUNCAN: Objection, your Honor.
25 THE COURT: Ms. Duncan.

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1 MS. DUNCAN: On the page before, this

2 document that Mr. Charest was asking Ms. Johnson-Muic
3 about in the deposition was identified as a gross
4 appraisal. So the question Ms. Johnson was asked in
5 the deposition has to be taken in the context in
6 which they were asked.
7 THE COURT: I think -- thank you. I think we
8 have the context.
9 Mr. Charest, you may proceed.
11 Q. And even for the gross appraisal for Barker,
12 the average price per acre was almost $82 an acre;
13 correct?
14 A. Yes, in this gross appraisal, yes, sir.
15 Q. Thank you.
16 At the time of the upstream land
17 acquisition in Addicks and Barker reservoirs, the
18 government noted a definitely rising trend in real
19 estate prices in the vicinity of Houston; correct?
20 A. Yes.
21 Q. Tell the Court, if you would, whether you're
22 familiar with ETL-1110-2-22, with respect to land
23 acquisition policy.
24 A. I believe you showed me that document at the
25 deposition.

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1 Q. Can you tell the Court what it is generally?

2 A. It is an engineering technical letter.
3 Q. That talks about?
4 A. Hydrologic policy guidance on reservoir
5 projects, and how they determine the land to be
6 acquired.
7 Q. All right. And there's no question about the
8 applicability of ETL-1110-2-22 to the Addicks and
9 Barker dams in your understanding; correct?
10 A. I've read file documentation that says that
11 it was applicable, yes, once it was issued, which I
12 believe was 1970.
13 Q. Okay. Do you remember answering differently
14 than you have today in your deposition to the
15 question I just asked you?
16 A. No.
17 Q. Okay.
18 Lines 97 to 11, and 97, 17. Please play
19 them, Matt?
20 MS. DUNCAN: Just one moment.
21 THE COURT: Just a moment.
22 Ms. Duncan.
23 MS. DUNCAN: What were those page numbers.
24 MR. CHAREST: 97, 11 to 17.
25 THE COURT: Mr. Charest, you're taking the

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1 position that the answer today is different from that

2 Ms. Johnson-Muic gave during the deposition?
4 THE COURT: Is it different and consistent or
5 contrary?
6 MR. CHAREST: It's different in that now all
7 of a sudden she's remembering that there was a time
8 limit of its applicability, when no one remembered
9 that before, sir.
11 MS. DUNCAN: I'll simply note that in the
12 deposition, when this portion was played --
13 The testimony on the prior two pages of
14 the deposition makes clear that Ms. Johnson-Muic was
15 talking about a document dated 1970, and it was
16 printed in 1970.
17 MR. CHAREST: No, but that's not what it says
18 at all. Neither did she, and you can do that on
19 cross I think.
20 MS. DUNCAN: If this portion is going to be
21 played, we ask for completeness, that we start on the
22 prior page, starting with page 96, to include that
23 information.
24 THE COURT: All right. We shall do that.
25 Cover the prior page as well.

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1 MS. DUNCAN: Start at page 96 line 12.

3 THE WITNESS: I mean, it's applicable to the
4 projects in question when it became effective in
5 1970, yes.
6 THE COURT: Do we need to read more or have
7 more?
8 MR. CHAREST: I think that's enough.
9 The point is, when it came into play, it
10 was effective as to Addicks and Barker dam as well.
11 And I think if there is any question about that, I'm
12 happy to keep doing this, but that's the point.
13 THE COURT: I think that's part of the
14 difficulty we are having.
15 MR. CHAREST: Okay, but then we do need to
16 play the whole thing, sir, because --
17 THE COURT: Let's do that.
18 (A video recording was played as
19 follows:)
20 Q. Flip to USACE327012 if you would,
21 please.
22 A. Okay.
23 Q. And the title of that section is
24 hydraulic criteria for acquisition of
25 reservoir land; right?

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1 A. Yes.
2 Q. And then in terms of the
3 applicability, to the extent there is any
4 questions about whether or not this applies,
5 and whether or not it's a legal opinion, it
6 says expressly that the criteria contained
7 therein are applicable to what?
8 A. Criteria contained herein are
9 applicable to all types of storage
10 reservoirs constructed by the Corps of
11 Engineers offices in the Southwestern
12 Division.
13 Q. And the Addicks and Barker
14 reservoirs are storage reservoirs
15 constructed by the Corps of Engineers'
16 offices in the Southwestern Division; right?
17 A. I would say they fit into all types
18 of, yes.
19 Q. Have you seen this document before?
20 A. Not that I remember.
21 Q. But there's no question about its
22 applicability to the dams in your
23 understanding; right? Since we just read
24 it. Now let's talk about -- right? I mean
25 that's the question; right?

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1 A. Yes, that's what it appears to be,

2 any reservoir in the --
3 (The video recording concluded.)
4 MR. CHAREST: And she goes on to finish, "in
5 the Southwest Division," so it does apply to dams.
6 Thank you.
7 Q. Ma'am, in your understanding on behalf of the
8 Corps as a representative, the Corps' general land
9 acquisition policies apply to all projects subject to
10 exceptions and being granted as necessary or
11 appropriate; correct?
12 A. From the time they're issued, yes.
13 Q. Do you remember me asking you that question
14 before, ma'am?
15 A. Not that exact question, no.
16 Q. Do you remember saying to me in response to a
17 question about the applicability of policy to
18 projects that it is the Corps' general policy to
19 apply to all, and then exceptions are granted as
20 necessary and/or appropriate without mentioning
21 anything about timing.
22 Do you remember testifying like that
23 back in the deposition?
24 A. I don't, but I trust that you're reading from
25 the record.

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1 Q. All right. So now you have a new memory that

2 the timing of the issuance governs the applicability
3 of regulations?
4 A. Well, it's not a new memory.
5 Q. It is just one that was not expressed before
6 when you gave me your testimony fully and truthfully?
7 MS. DUNCAN: Objection. This is improper
8 impeachment. We don't know the question that was
9 asked and in the context.
10 MR. CHAREST: She admitted that she changed
11 her answer, so I don't need to impeach her.
12 THE COURT: Well, let's just stop.
13 You're saying basically her answer today
14 is inconsistent, not only inconsistent, but contrary
15 to what Ms. Johnson-Muic testified previously.
16 MR. CHAREST: I believe that she's adding an
17 element to her answer that was not in the prior
18 answer.
19 THE COURT: That might be an explanatory
20 element.
21 MR. CHAREST: It's -- I would say
22 inconsistent, then, because all of the questions were
23 very much about that these regulations apply, and the
24 answers were "geographically, yes." And then if
25 there was an incompletion there, in my view, that's

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1 inconsistent, because now all of a sudden there is a

2 timing element that's been added for the trial.
3 THE COURT: The time element is important.
4 Ms. Duncan.
5 MS. DUNCAN: Yes, your Honor. I need to know
6 where he's looking at in the transcript to understand
7 what he's talking about. As you know, often
8 questions are progressive, in that the time elements
9 that are geographic elements, and follow-up questions
10 are asked, so a page and line would be helpful.
11 MR. CHAREST: The page and line number I'm
12 referring to are 248, 17, to 294, 2.
13 Q. The question is, and I'll read it, and you
14 can answer it as best you can:
15 "Q. Is it the Corps' practice in terms
16 of application of land acquisition policy to
17 pick and choose which reservoirs conform to
18 the policy? Or is it the Corps' practice
19 that the policy should apply as best as
20 possible, wholesale, to all of the
21 projects?"
22 MS. DUNCAN: Objection, your Honor.
23 Mr. Charest is not asking about timing.
24 THE COURT: That might be so, but the
25 question itself is not objectionable.

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1 Ms. Johnson-Muic, you may answer.

2 THE WITNESS: Can you repeat it?
3 Q. BY MR. CHAREST:
4 "Q. Is it the Corps' practice in terms
5 of application of land acquisition policy to
6 pick and choose which reservoirs conform to
7 the policy? Or is it the Corps' practice
8 that the policy should apply as best as
9 possible, wholesale, to all of the
10 projects?"
11 A. We don't pick and choose, so I would say we
12 apply it uniformly, consistently.
13 Q. Thank you.
14 Can you show me Exhibit -- we'll skip
15 that one.
16 Exhibit 1406, please, Matt.
17 I've put before you in 1406. It was
18 produced by the Corps, and the subject line is
19 Buffalo Bayou and Tributaries, Texas, Addicks and
20 Barker Reservoir, special report of flooding, and it
21 talks about land acquisition policies in paragraphs
22 2a and 2b.
23 Do you see that, ma'am?
24 A. Yes, I do.
25 MR. CHAREST: Offer Exhibit 1406 into the

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1 record.
5 in evidence.)
6 Q. BY MR. CHAREST: Thank you.
7 It's true to say that the Corps
8 understood that, in 1992, that the land acquired
9 would not accommodate the maximum flood storage,
10 ma'am?
11 A. So this is correspondence from the division
12 engineer to the district, and it definitely states
13 here in paragraph 2 that you have up for me, that
14 "Urbanization of privately-owned land that borders
15 the government-owned land has resulted in the
16 erection of structures within the maximum pool zone.
17 Homeowners were largely unaware of their situation."
18 Q. And you're not aware of anything that would
19 suggest that that statement is untrue; correct?
20 A. Not that I know of, no.
21 Q. And just to take the legalese out of this, or
22 the engineer speak out of it, when we're talking
23 about the erection of structures within the maximum
24 pool line, you're talking about homes and businesses,
25 of human beings that live on the property that they

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1 purchased; correct?
2 A. I don't know for sure what the author was
3 referring to.
4 Q. You don't know that the structures that were
5 being erected in the maximum pool zone were the homes
6 and businesses of human beings?
7 A. I'm certain some of them were residences,
8 yes.
9 Q. We talked about the 216 report, which is in
10 the record as Joint Exhibit 52. Show that document
11 on the screen, please.
13 A. Yes, sir.
14 Q. All right. Is it right to say that -- well,
15 for sure in the 216 report, the government decided
16 not to acquire any additional upstream properties?
17 A. Yes.
18 Q. And after the 216 report, the government has
19 not even evaluated the possibility of buying upstream
20 private property within the Addicks and Barker
21 reservoirs; correct?
22 A. To my knowledge, no.
23 Q. Well, you say "no." What I said is correct;
24 right?
25 A. That we have not produced any other studies

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1 to acquire private land, yes, to my knowledge, we

2 have not.
3 Q. Okay. And we went through a whole series of
4 times throughout history, from the '40s, all up
5 through the '70s and the '80s and '90s, up to the 216
6 report of different opportunities or evaluations that
7 the Corps made about whether or not to buy upstream
8 properties.
9 Do you recall those discussions?
10 A. There were a number of studies, yes.
11 Q. Right. And in each case, the '70s, the '80s,
12 the '90s, and the 216 report, the government
13 evaluated the option to acquire more land upstream,
14 within the Addicks and Barker reservoirs, to address
15 the risk of inundation of private property by water
16 retained from the Addicks and Barker dams, and at
17 each decision the government rejected that option
18 based on a cost/benefit analysis performed by the
19 Corps; correct?
20 A. In the reports that -- excuse me, that
21 evaluated land, ultimately those options were
22 screened out due to the economics of the project,
23 yes.
24 Q. The economics of the project meaning that the
25 risk of flooding upstream properties was not worth

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1 the money it would cost to acquire those properties

2 to the government as an investment; correct?
3 A. No, sir, that would only be part of the
4 analysis.
5 Q. The decision was that it was not -- to
6 acquire the upstream properties was not a good enough
7 investment for the government; right?
8 A. No, sir, the actual project that would
9 include the land acquisition was ruled out as not
10 able to have a federal investment, so economics are
11 much more than just the land cost.
12 Q. What's the main driver of the economics
13 behind the land -- behind acquiring the land, other
14 than the land costs?
15 A. It is the economics of the project, sir,
16 not -- and the land is just a small piece of that.
17 Q. The decision is whether or not to acquire
18 land. What other costs are we talking about, other
19 than acquiring the land?
20 A. Construction costs. So usually the
21 acquisition of land is only a piece of the larger
22 construction project. So there are many costs, and
23 many benefits that are analyzed in the economics.
24 Q. You know the dams have already been built;
25 right?

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1 A. Yes.
2 Q. So what construction are you talking about,
3 ma'am?
4 A. The dam safety works.
5 Q. I'm talking about the decision of whether or
6 not to acquire more upstream property without regard
7 to dam safety.
8 A. I'm not aware there was ever a study that
9 only looked at land acquisition.
10 Q. So the government --
11 A. It was always looked at as an element of dam
12 safety construction work.
13 Q. It was always looked at in conjunction
14 with --
15 A. With another construction project, yes.
16 Q. Right. So the government has never looked at
17 the question of whether or not it could acquire more
18 upstream property in order to avoid the risk of
19 flooding these private properties; correct?
20 A. Not as a single path forward, no.
21 Q. Right.
22 And the government has never allocated
23 any money to the Corps to acquire additional upstream
24 properties in the history of the dams; right?

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1 Q. And that's true all the way up to the

2 watershed, whether Addicks and Barker and Cypress
3 Creek watershed, the government has never allocated
4 any money to acquire any properties to reduce the
5 risk of flooding to the people in the upstream area;
6 correct?
7 A. We do not have authorization or
8 appropriation; that's correct.
9 Q. And with respect to the authorization and
10 appropriation, the Corps has never asked for that
11 money either, has it?
12 A. Hasn't asked for that money for what?
13 Q. To acquire any additional properties upstream
14 of the government-owned lands, from the edge of the
15 government-owned lands up to the Addicks and Barker
16 watersheds and all the way up to Cypress Creek.
17 A. No, I don't think that there have been any
18 reports to Congress on that.
19 Q. So I'm right that the Corps has never asked
20 for that money; right?
22 Q. And despite knowing full well that thousands
23 and thousands of people lived in homes on private
24 property within the flood zone of the Addicks and
25 Barker reservoirs upstream, and knowing well that

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1 those areas were subject to inundation by water

2 impounded behind the Addicks and Barker dams, the
3 Corps never sought authorization to buy more;
4 correct?
5 A. Yes, we couldn't justify it according to the
6 OMB requirements.
7 MR. CHAREST: No further questions.
8 THE COURT: Ms. Duncan, cross-examination.
9 It's actually direct examination.
10 MS. DUNCAN: Yes, your Honor, one moment.
11 THE COURT: Of a friendly witness.
12 Thank you, Ms. Tardiff.
13 MS. DUNCAN: Your Honor, do you mind if I
14 stand at this lower podium?
15 THE COURT: No.
16 MS. DUNCAN: I am quite short.
17 THE COURT: You're not, but in any event, as
18 long as you speak into the microphone, you're
19 perfectly fine.
20 MS. DUNCAN: Thank you.
21 May I proceed?
22 THE COURT: Yes.
23 CROSS-EXAMINATION
24 BY MS. DUNCAN:
25 Q. Ms. Johnson-Muic, I would like to follow up

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1 on the last question that Mr. Charest asked you.

2 You responded by referencing an OMB
3 process. What did you mean by that?
4 A. Well, the Office of Management and Budget
5 sets the economic parameters for federal investment
6 in civil works projects. And so when we do a study,
7 we look to comply with those requirements.
8 Q. I'd like to take a step back and ask you just
9 a little more about your background, and a little
10 more about the history of Addicks and Barker.
11 Ms. Johnson-Muic, how long have you been
12 with the Army Corps of Engineers?
13 A. Almost 29 years.
14 Q. Now you told us that you were the Chief of
15 Real Estate for the Southwestern Division. How long
16 have you served in that role?
17 A. Approximately 10 years.
18 Q. And before your role as Chief of Real Estate,
19 what did you do for the Corps?
20 A. Well, I've always been in the real estate
21 office for the Corps, but a couple years in a staff
22 position at Southwestern Division, Real Estate.
23 And then I worked 15 years in the
24 Pittsburgh District, Corps of Engineers' real estate
25 office.

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1 Q. And Ms. Johnson-Muic, what is your

2 educational background?
3 A. I have a Bachelor's Degree from Penn State,
4 and I have a juris doctorate degree from the
5 Dickinson School of Law.
6 Q. Are you a licensed attorney?
7 A. I am.
8 Q. And do you serve in an attorney role for the
9 Corps of Engineers?
10 A. No, I do not.
11 Q. Generally speaking, who at the Corps makes
12 the determination about how much land to acquire at a
13 reservoir project?
14 A. Typically it's a group of individuals from
15 different backgrounds, but primarily it's
16 engineering, technically driven.
17 Q. And then who actually goes out and acquires
18 the land?
19 A. The real estate office for full federal
20 projects.
21 Q. And how does the real estate group know what
22 land to acquire?
23 A. Well, what we would call an acquisition line,
24 or a taking line is set, based on the
25 engineering -- in the case of a reservoir project,

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1 based on the hydrology for the project. And

2 typically we would see -- and the engineering
3 department transferring that information to real
4 estate.
5 Q. And then once real estate gets that
6 information, then how does it know what lots to go
7 out and buy?
8 A. So we take that information and tie it to the
9 ground by performing a land survey, and setting
10 boundaries, and then writing legal descriptions from
11 there, and then performing our appraisal values and
12 then going out and negotiating.
13 Q. When did the transactions to acquire the land
14 behind the dams take place?
15 A. They started in the early 1940s, '41 and '42,
16 and then continued through 1951.
17 Q. And did the Corps acquire the land behind the
18 dams in fee?
19 A. Yes, sir.
20 Q. And was that land purchased voluntarily or
21 condemned?
22 A. It was a combination of both. There was some
23 purchases and some condemnations.
24 Q. I would like to turn your attention to Joint
25 Exhibits 4, 9, and 10.

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1 MS. DUNCAN: Your Honor, these are all in

2 Joint Exhibit binder 1, but we'll have them up on the
3 screen. They are not large documents.
4 Q. Ms. Johnson-Muic, are you familiar with Joint
5 Exhibits 4, 9, and 10?
6 A. Yes, I am.
7 Q. Okay. And what are these documents?
8 A. This is a series of correspondence about the
9 taking line for the Barker Reservoir.
10 Q. Okay. And where did these documents come
11 from?
12 A. The Corps of Engineers project historical
13 files.
14 MS. DUNCAN: Your Honor, the United States
15 offers Joint Exhibits 4, 9, and 10 into evidence.
16 MR. CHAREST: No objection.
18 Admitted.
19 (Joint Exhibits 4, 9 and 10 were
21 Q. BY MS. DUNCAN: Ms. Johnson-Muic, let's start
22 with Joint Exhibit 4. It's there in your binder, and
23 it's now up on the screen.
25 Q. What is in this document? Or what is this

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1 document?
2 A. This is correspondence to the Chief of
3 Engineers in Washington, D.C. from 1940 -- February
4 of 1942, referencing the taking line for Barker
5 Reservoir.
6 Q. I'd like to direct your attention to
7 paragraph 3, and the subparagraph within it.
8 What's being discussed in paragraph 3?
9 And where does that paragraph underneath it come
10 from?
11 A. This is an excerpt from the Definite Project
12 Report in 1940, paragraph 54, where it's describing
13 the proposed land acquisition for Addicks and Barker
14 at an elevation three feet above the pools that would
15 be produced by the -- I think that's a 1935 storm.
16 It's a little bit hard to read, but I believe that's
17 1935.
18 Q. Let's turn to Joint Exhibit 9. Can you tell
19 us about this document?
20 A. Yes.
21 This is also correspondence. Same
22 project. It is signed by the -- it's to the Chief of
23 Engineers, forwarded from the division office. Also
24 dated February of 1942.
25 Q. Okay. And what's being discussed in

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1 paragraph 1?
2 A. Well, they are forwarding the district
3 engineers a basic letter to get the taking line for
4 Barker Reservoir approved.
5 Q. Okay. And let's -- I'd like to turn your
6 attention to paragraph 2 of this document. What's
7 being discussed in this paragraph?
8 A. The division office is telling the
9 headquarters that the acquisition limits for the
10 upstream portion of the reservoir -- they enclosed a
11 map -- is defined by the 98.3 contour line. And they
12 further go on to say that since future inundations
13 may be infrequent, the purchase of a flowage easement
14 may prove to be expedient and economical.
15 Q. To what lands is that statement about future
16 inundations being infrequent? To what lands is that
17 referring?
18 A. They are referring to the upstream lands at
19 Barker Reservoir.
20 Q. And up to the 98.3 contour line?
21 A. Yes, ma'am.
22 Q. I'd like to turn your attention to Joint
23 Exhibit 10.
25 Q. What's being discussed in this document?

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1 A. This is the approval coming back from the

2 Chief of Engineers, approving the taking line that
3 was submitted from the district for the Barker
4 Reservoir.
5 Q. Now, did you tell us that the lands that the
6 Corps acquired upstream of each of the reservoirs or
7 dams required a fee?
8 A. Yes. There were a couple of minor
9 exceptions, but it was almost all fee.
10 Q. And when the Corps buys land in fee, does it
11 allow people to build homes on that land?
12 A. No.
13 Q. If the Corps had purchased land beyond the
14 lines at which it did purchase, if it purchased fee
15 beyond that, could the Plaintiffs in this case have
16 built homes on that land?
17 A. No.
18 Q. Are there policies that guide -- now,
19 Mr. Charest asked you a bit about Corps policy, so
20 let me ask you a few follow-ups in that vein.
21 Are there policies that guide the Corps'
22 real estate acquisitions in reservoir projects?
23 A. Yes, there are.
24 Q. Do Corps real estate acquisitions comply with
25 the policies in place at the time of acquisition?

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1 A. Yes, they did.

2 MR. CHAREST: Objection, your Honor, lack of
3 foundation. She doesn't know what policies even
4 applied back in the '50s, so to the extent the
5 question relates to back when the Addicks and Barker
6 dams were built. She's not in a position to answer
7 that question.
8 THE COURT: The objection is overruled. It
9 was a general question, and she got a general answer.
10 Q. BY MS. DUNCAN: Ms. Johnson-Muic, can you
11 remind us of your answer?
12 MS. DUNCAN: Your Honor, I missed the answer
13 with the objection. May I ask the question again?
14 THE COURT: Well, you got the answer -- you
15 did ask the question, you also got an answer, but you
16 may ask it again. I'll give you the three strikes.
17 You're only at two.
18 MS. DUNCAN: I apologize. I did not hear the
19 answer.
20 Q. Ms. Johnson, do Corps real estate
21 acquisitions comply with real estate policies in
22 place at the time of acquisition?
23 A. Yes, they do.
24 Q. Are there ever any exceptions?
25 A. On occasion, yes.

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1 Q. Can you describe what that is?

2 A. Well, if we were proposing a project where we
3 needed, or thought there was a good reason to deviate
4 from policy, we would have to request from higher
5 authority the ability to get an exception.
6 Q. Did you find any documented exceptions of
7 real estate policy related to the Corps' original
8 acquisition at Addicks and Barker?
9 A. No, I did not.
10 Q. And when a new real estate policy goes into
11 place, how does it apply to projects that already
12 exist?
13 MR. CHAREST: Objection, your Honor. This is
14 a legal conclusion I think.
15 THE COURT: I'm sorry. Say it again,
16 Mr. Charest, in the microphone.
17 MR. CHAREST: I guess it is vague because I'm
18 not sure exactly -- if this is, again, a general
19 question, then we can get a general answer, as long
20 as it doesn't pertain to these dams. I don't care.
21 But if they're talking about these dams, then I need
22 to know that that's what the question is.
23 THE COURT: It is a general question. You
24 probably will get a general answer. We'll find out.
25 THE WITNESS: So if a new policy comes out,

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1 and we have an existing project, the new policy isn't

2 really addressed unless we're working under authority
3 on -- to do a new study of that project. And then we
4 would apply it moving forward.
5 Q. BY MS. DUNCAN: Okay. When Mr. Charest was
6 asking you questions, I believe that you testified
7 that policies apply from the time they are issued.
8 What did you mean by that?
9 A. Well, the policies, our policies and rules
10 under which we operate change all the time, and they
11 typically do not state on the face of them that they
12 are retroactive to all existing projects that have
13 already been constructed. They apply from the date
14 of issuance forward for anything new that we're
15 proposing to do, to which they apply.
16 Q. Ms. Muic, are you familiar with the term
17 outgrant.
18 A. Yes, ma'am.
19 Q. And what is an outgrant?
20 A. We use that term to describe real estate
21 transactions from the government to a third party for
22 use of federal lands.
23 Q. Are there outgrants at the Addicks and Barker
24 reservoir projects?
25 A. Yes, there are.

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1 Q. Can you provide some examples of the types of

2 outgrants that exist out at the Addicks and Barker
3 reservoir projects?
4 A. Yes.
5 They may be used for utility corridors,
6 pipelines, park and recreational use, and we also
7 have them for drainage ditches.
8 Q. Approximately how many outgrants are for
9 drainage at the Addicks and Barker reservoirs?
10 A. Approximately 29.
11 Q. I would like to turn your attention to
12 Defendant’s Exhibit 801 and 800.
14 Q. Ms. Johnson-Muic, do you recognize these
15 exhibits?
16 A. Yes, I do.
17 Q. And what are these exhibits?
18 A. These are map exhibits that reflect the
19 federal fee land holdings at Barker and Addicks
20 reservoir.
21 Q. All right. What else do they reflect?
22 A. Also on the maps you'll see some purple
23 lines. Those outline some of the outgrant
24 instruments that we were just discussing.
25 Q. Okay. Where did these maps come from?

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1 A. Well, these were prepared in the Galveston

2 District by a mapping cartographer.
3 Q. And do you know how they were prepared?
4 A. Yes.
5 They were based on the AECOM land survey
6 and the legal description from those fee lands, and
7 then also the purple lines were created based on the
8 actual easement and outgrant instruments and the
9 legal descriptions inside of those.
10 Q. Have you ever asked your staff to map a real
11 estate instrument in the manner that the easements
12 are mapped on Plaintiffs' Exhibit 800 and 801?
13 A. Yes, I have.
14 Q. And did you review these maps as they were
15 being created?
16 A. Yes, ma'am.
17 Q. Do you have confidence that this map
18 accurately depicts the approximate location of the
19 easements depicted on these exhibits?
20 A. Yes, ma'am.
22 offers Defendant’s Exhibit 800 and 801 into evidence.
23 MR. CHAREST: No objection, your Honor.
24 THE COURT: The Court has a couple of
25 questions about them before any decision on

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1 admissibility or not.
2 May I ask?
3 MS. DUNCAN: Yes, your Honor.
4 THE COURT: There are a couple of colors,
5 green, and a sort of tan color, Ms. Johnson-Muic.
6 What do those represent on each map?
7 THE WITNESS: Well, these are layers that
8 you're seeing, so that sort of tan opaque is a layer
9 over the top of the green, so the outline of the tan,
10 in combination with the green, is the total fee
11 lands. The green, for example, at Barker Reservoir,
12 represents a park area.
13 THE COURT: And what does the tan represent?
14 THE WITNESS: Well, those are the fee
15 land -- our fee lands. It's just a layer over the
16 top of. So in total, the tan color plus the green,
17 the outline of those represents the outline of our
18 fee boundary.
19 THE COURT: Why did you distinguish the areas
20 in color?
21 THE WITNESS: It's just a mapping technique.
22 In order for you to be able to see the water
23 underneath in the blue, you see some areas in blue
24 there, there is some streams and waters, so they
25 color them this way so you can see the various layers

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1 to get more detail.

2 THE COURT: All right. Admitted.
3 When I say admitted, both DX800 and
4 DX801 are admitted.
6 (Defendant’s Exhibits 800 and 801 were
8 Q. BY MS. DUNCAN: Ms. Johnson-Muic, I'd like
9 to -- let's zoom into Defendant's Exhibit 801 and
10 talk just a little bit more about how to read these
11 maps.
12 Can you tell us about the labels on
13 these maps?
14 A. Yes.
15 So each of the purple areas are labeled,
16 for example, at the bottom of this map, FB0025589, is
17 a reference to Fort Bend County, and that number
18 matches the Bates number on the easement instrument.
19 Q. Okay. And then how about the names with
20 addresses? What are those?
21 A. Those are the test properties that were
22 identified on the maps.
23 Q. Okay. And where did the information about
24 test properties come from?
25 A. From government counsel.

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1 Q. Now, can you remind us again what are the

2 items outlined in purple on this map?
3 A. Yes.
4 Each of those represents an outgrant.
5 The ones that we begin with FB are Fort Bend related,
6 and then the ones that start with Harris are from
7 Harris County.
8 Q. And what is the purpose of the outgrants
9 depicted on Defendant’s Exhibit 801 and 800.
10 A. Those all represent drainage easements for
11 drainage facilities or channels.
12 Q. Okay. Now who are the types of entities that
13 have requested outgrants for drainage into Addicks
14 and Barker reservoirs?
15 A. Typically these are either the counties
16 themselves or possibly drainage districts.
17 Q. And generally speaking, why do these entities
18 ask for drainage outgrants into Addicks and Barker
19 reservoirs?
20 A. Generally these are all related to -- it's
21 their only option for draining water from upstream
22 lands that they wish to develop, or in some cases
23 that were already developed.
24 Q. Okay. What is the process for the Corps to
25 execute an outgrant?

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1 A. Well, when we get a request and it comes into

2 the District office, it goes through quite a lengthy
3 review from technical experts in engineering and
4 operations in terms of how it will impact the federal
5 project, both from an engineering functional
6 standpoint and an operational standpoint. It's then
7 determined whether or not the government can allow
8 the requested use. Typically, we only do that if it
9 doesn't have an adverse impact to the federal
10 project, or if there is no other alternative for the
11 problem that the requester is trying to address.
12 Q. And after that analysis occurs, then what
13 happens?
14 A. Well, if the answer is yes, we are going to
15 permit this use of federal lands, then there is a
16 whole compliance set of activities that have to go
17 on. There has to be an establishment of compliance
18 with the National Environmental Policy Act.
19 You have to do regulatory review and
20 permitting process, and after all that is done, and
21 we're still at a "yes," then the real estate office
22 engages to actually execute an instrument.
23 Q. You mentioned the National Environmental
24 Policy Act. Is that also known as NEPA?
25 A. Yes.

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1 Q. Does the real estate division and district in

2 Galveston maintain documents for outgrants reflecting
3 the process that you just described?
4 A. Yes, we do.
5 Q. And what sorts of documents would be included
6 in those files?
7 A. Well, we would include it as a part of our
8 administrative record, all of the review I just
9 described leading up to granting the outgrant, as
10 well as any correspondence with the requester for
11 additional information, plans and drawings in some
12 cases, and then there would be -- after the outgrant
13 is issued, additional correspondence over the life of
14 the outgrant for its administration.
15 Q. What types of administration would occur
16 after an outgrant is executed?
17 A. Well, the outgrant instrument -- easements in
18 this case -- indicate that the grantee of the county
19 or the drainage district has the responsibility to
20 construct these facilities in compliance with the
21 Corps' requirements, and to operate and maintain them
22 within those requirements as well. So there might be
23 periodic inspections and sometimes the need to do
24 maintenance work, and there would be correspondence
25 in our file that addresses all of that.

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1 Q. Okay. And who maintains the real estate

2 files for outgrants for -- excuse me -- for drainage
3 outgrants for the reservoirs?
4 A. The Galveston District of the Corps of
5 Engineers, Real Estate office.
6 Q. And if you wanted to learn about the
7 background and purpose of the drainage outgrants at
8 Addicks and Barker, what documents in the real estate
9 files can you look at?
10 A. Well, it would include the NEPA compliance
11 documents, like the EA, the regulatory permit, any of
12 the correspondence back and forth between the
13 requester and the Corps that would explain the
14 nuances and details of the proposed projects. All of
15 that correspondence would be in our files to read
16 through.
17 Q. Now using Defendant’s Exhibit 800 and 801,
18 I'd like to ask you some more details about the
19 easements depicted on these maps.
20 MS. DUNCAN: To facilitate that, your Honor,
21 I have loose copies of the two maps that might make
22 it easy to cross-reference as we're going through.
23 May I approach?
24 THE COURT: Yes.
25 Q. BY MS. DUNCAN: Ms. Johnson-Muic, looking at

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1 Defendant's Exhibit 801, at the most southern

2 easement outlined in purple labeled FB0025589, I'd
3 like to ask you some questions about that. To do so,
4 let's turn to Defendant’s Exhibit 94, bearing Bates
5 FB0025589.
7 THE COURT: This is 54?
8 MS. DUNCAN: This is 94.
9 THE COURT: 94. Sorry.
10 Q. BY MS. DUNCAN: Ms. Johnson-Muic, are you
11 familiar with this document?
12 A. Yes, I am.
13 Q. What is this document?
14 A. This is an easement for right-of-way for a
15 diversion channel on the Buffalo Bayou and
16 Tributaries project at Barker Dam, granted by the
17 Army to the Willow Fork Drainage District for a
18 period of 50 years.
19 Q. And what is the stamp and signature at the
20 bottom of the page?
21 A. This is a stamp and signature from the County
22 Clerk's office, where this easement is recorded in
23 their deed book records.
25 offers Defendant’s Exhibit 94 into evidence.

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3 (Defendant’s Exhibit 94 was received in
4 evidence.)
5 Q. BY MS. DUNCAN: Ms. Johnson-Muic, can we turn
6 to the page ending 5594.
7 Ms. Johnson-Muic, who signed this
8 document and when?
9 A. This is signed by the Chief of Real Estate in
10 the Galveston District in May of 1986, and also by
11 the President of the Board of Directors for the
12 Willow Fork Drainage District, also May of 1986. And
13 by the Fort Bend County Drainage District in May of
14 1986.
15 Q. I'd like to turn your attention now to the
16 page ending in 5601.
18 I'm sorry, can you repeat the page
19 number.
20 Q. 5601.
22 Q. Ms. Johnson-Muic, what's shown on this page?
23 A. This is a letter to the President of the
24 Willow Fork Drainage District dated April of 1986.
25 Q. Is this letter part of the recorded

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1 instrument?
2 A. Yes, it is.
3 Q. Does Exhibit C speak to the purpose of the
4 outgrant?
5 A. Yes, it does. It says that the United States
6 recognizes that the purpose of the easement is to
7 permit construction of the drainage channel, thereby
8 facilitating the development of certain lands
9 upstream of Barker Reservoir. And it goes on to say
10 without construction of the diversion channel,
11 frequent flooding would render these upstream lands
12 undevelopable.
13 Q. Please turn to the page ending in 5602 and
14 5603, the next two pages.
15 Who signed this letter and when?
16 A. This letter was signed by the Chief of Real
17 Estate in the Galveston District in May of 1986, and
18 also by the Willow Fork Drainage District and the
19 Fort Bend County Drainage District, both in May of
20 1986.
21 Q. If we look back to the Barker map,
22 Defendant’s Exhibit 801, let's talk about the next
23 easement moving upward on the map ending with the
24 label -- or sorry, with the label FB0025604. And to
25 do that, let's turn to Defendant’s Exhibit 95.

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2 Q. Are you familiar with Defendant’s Exhibit 95?
3 A. Yes, ma'am.
4 Q. What is Defendant’s Exhibit 95?
5 A. This is an easement, also from the Department
6 of Army for channel improvements at the Barker Dam,
7 issued to Fort Bend County for a term of 50 years.
8 Q. And what is the signature and stamp at the
10 A. This is from the Fort Bend County Clerk.
11 This document is recorded in the public deed records.
13 offers Defendant’s Exhibit 95 in evidence.
17 evidence.)
18 Q. BY MS. DUNCAN: Ms. Johnson-Muic, turning to
19 the page ending in 5609, can you tell us who signed
20 this document and when?
21 A. Yes, this is signed by the Chief of Real
22 Estate for the Galveston District in May of 1986, and
23 also by Fort Bend County in May of 1986.
24 Q. I'd now like to turn your attention to the
25 page ending in 5621.

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2 Q. What is this document? Or what is this page?
3 A. This is a letter to the drainage district
4 manager and engineer from April of 1986 regarding
5 this easement.
6 Q. Okay. How similar, if at all, is this to
7 Exhibit C from Defendant’s Exhibit 94 that we just
8 discussed?
9 A. It's almost identical.
10 Q. Ms. Johnson-Muic, are you familiar with
11 documents that describe the physical condition of the
12 area before these two outgrants were granted?
13 A. Yes, I am.
15 Exhibit 33.
19 THE COURT: If you can accommodate it, if
20 this would be the last exhibit we address before our
21 morning break.
22 MS. DUNCAN: I'll tell you, your Honor, there
23 is this one and then one more, and then we hit a good
24 stopping point.

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1 MS. DUNCAN: Would that work?

2 THE COURT: Yes.
4 Q. Ms. Johnson-Muic, are you familiar with this
5 document?
6 A. Yes, ma'am.
7 Q. And what is this document?
8 A. This is an environmental assessment out of
9 Fort Bend County for the Cinco Ranch development, and
10 it's dated October of 1984.
11 Q. Where did this document come from?
12 A. It was produced by Turner, Collie & Braden,
13 Incorporated, a consulting engineer firm.
14 Q. But where was this document kept?
15 A. Oh, this is from our Galveston District real
16 estate historical files.
18 offers Joint Exhibit 33 into evidence.
19 MR. CHAREST: No objection as to the
20 admissibility of the document. I have some questions
21 about her ability to talk about it.
22 THE COURT: All right. We'll cover that in
23 due course.
24 Admitted.
25 (Joint Exhibit 33 was received in

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1 evidence.)
2 Q. BY MS. DUNCAN: I'd like to turn your
3 attention to page 0430.
5 Q. Can you tell us what's being discussed in
6 this section?
7 A. It's entitled "need for the project."
8 Q. Okay. And what is the need described for the
9 project?
10 A. It's discussing the proposed Cinco Ranch
11 development along the western boundary of the Barker
12 Reservoir, and it says that, "A total of 2410 acres
13 of Cinco Ranch properties are within the 100-year
14 floodplain of Willow Fork and its tributaries, and
15 the proposed project -- "
16 THE COURT: Let's just read the rest of it,
17 Ms. Johnson-Muic, the parenthetical.
18 THE WITNESS: Oh.
19 "A total of 2410 acres of Cinco Ranch
20 property is within the 100-year floodplain of Willow
21 Fork and its tributaries, including the Barker
22 Reservoir flood pool. And the project that's being
23 analyzed or proposed will allow for the 100-year
24 flood flows to be discharged into the reservoir and
25 remove approximately 1740 acres of the proposed

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1 development from the 100-year floodplain."

2 Q. BY MS. DUNCAN: And can you read the first
3 two sentences for us?
4 A. "The topography of much of the land in this
5 area is nearly level, and as a result, land areas
6 adjacent to, and upstream of the Barker Reservoir,
7 are subjected to frequent flooding events. These
8 flooding events are reported in existing literature,
9 Harris County Flood Control District, 1983."
10 Q. I would now like you to turn to the page
11 ending in Bates 0448, and this is the USACE Bates
12 number, not the depo Bates number.
13 And particularly the section labeled
14 wetlands.
15 What is described in this section?
16 MR. CHAREST: Your Honor, objection.
17 I guess it's a limited objection. If
18 she's just going to keep reading the document, I
19 don't object, but if she's going to have her go into
20 what wetlands are or how this all works together,
21 then I object to her as a foundational point, because
22 she doesn't know anything about this.
23 THE COURT: Well, she does know because this
24 document is from the real estate file. That's the
25 extent of it.

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1 MR. CHAREST: If she's reading it, that's

2 fine, but if she's going to say, and I believe it's
3 true and these other things, then I object.
4 THE COURT: Well, Mr. Charest, we haven't
5 gotten there yet.
6 MR. CHAREST: Very well.
7 Q. BY MS. DUNCAN: Ms. Johnson-Muic, what's
8 described in this section?
9 A. It's describing the straightening of Willow
10 Fork in the 1950s, where they cut off many of the
11 original meander bends, and how the areas are now
12 adjacent to the realigned channel and their riparian
13 oxbow wetlands.
14 It also discusses how there are a few
15 isolated wetted depressions that are saturated --
16 persistent emergent wetlands that are saturated to
17 seasonally flooding, and may be on -- well, I won't
18 read the rest of those words in. It's very
19 technical.
20 Q. BY MS. DUNCAN: And Ms. Johnson-Muic --
21 THE COURT: Well, except that they're talking
22 about saline soils; right?
23 THE WITNESS: Yes, sir.
25 THE WITNESS: Waller-Katy complex soils.

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2 familiar with the map that shows where the outgrants
3 we've just described are located in relation to
4 nearby developments?
5 A. Yes, ma'am.
6 Q. I'd like to turn your attention to
7 Defendant’s Exhibit 86.
9 MS. DUNCAN: Your Honor, may I approach to
10 hand the witness a pointer?
11 THE COURT: Yes.
12 Q. BY MS. DUNCAN: Defendant’s Exhibit 86.
15 document?
16 A. Yes, ma'am.
18 A. The Galveston District real estate files.
20 A. This goes with the document we just looked
21 at. It's a Cinco Ranch floodplain map on the Willow
22 Fork alignment.
23 Q. And what is the date in the bottom-right
24 corner?
25 A. It's dated December of 1984.

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3 MR. CHAREST: Without objection.
4 THE COURT: I'm sorry?
6 THE COURT: It's already admitted.
7 MR. CHAREST: Then I definitely don't object.
8 MS. DUNCAN: Your Honor, I do not show 86 as
9 already in evidence.
10 THE COURT: Unfortunately, I have it.
11 Oh, I see what -- never mind. I made a
12 mistake in my annotation. Just a moment. I have to
13 go back and look.
14 It's admitted.
16 evidence.)
17 Q. BY MS. DUNCAN: Ms. Johnson-Muic, looking to
18 the bottom-right corner of this document, what is the
19 title and who is the author of the document?
20 A. It's titled Cinco Ranch Floodplain Management
21 for Willow Fork Alignment, and the author is the
22 Turner, Collie & Braden, Incorporated.
23 Q. I want you to provide just a very high level
24 overview of what's shown in this map, and to do so, I
25 think we also need to read the legend in the bottom

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1 left corner.
2 Can you just pull up the legend, and
3 Ms. Johnson-Muic, could you tell us what's described
4 in the legend?
5 A. Yes.
6 Well, there are a number of different
7 lines shown on this map, and the legend depicts each
8 of them. It includes the Cinco Ranch boundary in
9 sort of a hashed line, and it also includes the
10 Barker Reservoir 100-year elevation.
11 Q. Ms. Johnson-Muic, using your pointer, can you
12 show us exactly where on the map -- not exactly,
13 approximately where on the maps those lines fall?
14 A. So this line here (indicating)
15 represents -- this line here is the Cinco Ranch
16 development line. You can see it going up here
17 (indicating). And then the reservoir line is right
18 in here (indicating). It goes over here and up
19 (indicating).
20 So it's basically on the outside of the
21 Cinco Ranch development line in many places.
22 MR. CHAREST: Your Honor, can I just, for
23 point of record, when we're talking about reservoir
24 land, can we just define what that means? So we're
25 real clear what we're talking about?

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1 THE COURT: You will be able to ask those

2 questions on redirect -- I say re -- but she is an
3 adverse witness. It is your redirect, or recross in
4 a sense.
5 MR. CHAREST: Yes.
6 MS. DUNCAN: Your Honor, I don't have any
7 more questions about this document, and this is a
8 good stopping point.
9 THE COURT: All right, Mr. Charest, do you
10 mind if we take a morning recess?
11 MR. CHAREST: Of course.
12 THE COURT: Ms. Johnson-Muic, may we do so?
13 THE WITNESS: Yes.
14 THE COURT: Thank you. We shall.
15 LAW CLERK: All rise. Court is now in
16 recess.
17 (Recess: 10:37 a.m. - 10:56 a.m.)
19 Ms. Duncan and Mr. Charest and
20 Ms. Johnson-Muic, if you would allow me to correct a
21 mistake I made this morning at the outset.
22 I was talking about the fact that I
23 think I misstated that JX49 had not been admitted.
24 That's wrong. JX49 had been admitted. It was JX48
25 that we had discussions about and that had not been

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1 admitted.
2 Does that change your view, Ms. Tardiff?
3 MS. TARDIFF: So, your Honor, you said JX48
4 had not been admitted; correct?
5 THE COURT: That's correct.
6 We had the discussion about the
7 foundation for the admissibility of JX48 as an
8 ancient document.
9 MS. TARDIFF: Correct.
10 And so when we did come back we moved
11 for admission of that this morning.
12 THE COURT: You did not.
13 MS. TARDIFF: We did not.
14 THE COURT: But I misstated what had happened
15 by reference to those two exhibit numbers, and I
16 wanted to make sure that you --
17 MS. TARDIFF: But you do have Joint Exhibit
18 47 in; correct?
20 JX47 is in and JX49 is in. JX48, if I
21 recall correctly, is the letter from the drainage
22 district, is not.
23 MS. TARDIFF: Correct, your Honor.
24 That's consistent with our record, and
25 that's fine.

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1 THE COURT: It might be consistent, but I'm

2 offering you a chance to revisit your decision not to
3 go forward and seek admission of JX48.
4 MS. TARDIFF: Your Honor, we're fine with the
5 record we have.
6 Thank you.
7 THE COURT: Mr. Easterby, are you fine?
8 MR. EASTERBY: I will accept counsel's --
9 what I consider to be a stipulation that Joint
10 Exhibit 48 is not being offered into evidence and is
11 not in evidence.
12 THE COURT: Right; it is not.
13 MR. EASTERBY: Thank you, Judge.
15 I'm sorry, Ms. Duncan, that we had that
16 little excursion during your examination, but let's
17 proceed.
19 Q. Ms. Johnson-Muic, if we turn back to the
20 Barker map, Defendant’s Exhibit 801, I would like to
21 ask you some questions about the next easement on the
22 map -- move me upward -- labeled Harris0001080, and
23 to do that, I'd like to turn to Defendant’s Exhibit
24 50, which is also Bates-stamped Harris0001080.

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1 THE COURT: This is DX60; is that correct?

2 MS. DUNCAN: No, sir, DX50.
3 THE COURT: 50.
4 MS. DUNCAN: Yes, sir.
7 familiar with this document?
8 A. Yes, I am.
10 A. This is an Army easement outgrant for a
11 drainage ditch on Barker dam area that's being
12 granted to the Harris County Flood Control District
13 for a period of 50 years.
14 Q. And what is the signature and stamp at the
16 A. It's a certified copy from the County Clerk's
17 office where it's recorded in the deed of records.
23 evidence.)
24 Q. BY MS. DUNCAN: Ms. Johnson, if you would
25 turn to the page ending in 1083.

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2 Q. And once you're there, can you tell us who
3 signed this page of the document and when?
4 A. Yes, that was signed by the Corps of
5 Engineers' Real Estate Division chief in the district
6 in June of 1976.
7 Q. Okay. And if you can turn to the page ending
8 in 1086.
10 Q. Can you tell us what's reflected on this
11 page?
12 A. This is a record from the county
13 commissioner's motion that was seconded where the
14 drainage easement from the Army in the Barker
15 Reservoir for a period of 50 years was accepted by
16 the Director of the Flood Control District.
17 Q. Are you familiar with documents or projects
18 in the area of this easement?
19 A. Yes.
20 Q. I would like to turn your attention to
24 document?
25 A. Yes, I am.

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2 A. From the Galveston District real estate
3 historical project files.
5 A. This is a finding of no significant impact
6 for the drainage easements proposed at Kelliwood to
7 South Willow Fork Creek at the Barker Reservoir.
8 Q. And if you look two pages in, what is
9 included in this document?
10 A. This is the environmental assessment.
11 Q. And how does it relate to the document we
12 discussed on the first page of the exhibit?
13 A. Well, this supports the finding of no
14 significant impact. These are all NEPA compliance
15 documents.
16 MR. CHAREST: Your Honor, the objection is to
17 her view of what the internal workings of the
18 document are, which isn't even in evidence. I don't
19 think she has foundation to talk about how the
20 document works. It's in her files, but it doesn't
21 mean she knows what they mean, say, or do.
22 THE COURT: Mr. Charest, the Court accepts
23 that, but essentially, she is someone who is very
24 familiar with, and probably has a lot to do with
25 keeping the Corps' real estate files for the

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1 Galveston District.
2 The Court will accept the evidence for
3 what it is. Thank you.
4 MR. CHAREST: Yes, your Honor.
7 THE COURT: Let's just clarify the date.
8 This is what appears to be 12-18-95; is
9 that correct?
11 THE COURT: What was the date of DX50?
12 You may tell me, Ms. Duncan.
13 MS. DUNCAN: DX50 was 1976.
14 So, your Honor, there's some additional
15 questions to explain how this relates to the easement
16 we just discussed.
17 THE COURT: Before the Court admits DX130, I
18 would like that explanation, please.
19 Q. BY MS. DUNCAN: Ms. Johnson-Muic, I asked you
20 a moment ago if you were familiar with documents from
21 projects in the area of the easement described in
22 DX50, and you said yes. Is this one of those
23 documents?
24 A. Yes.
25 Q. Okay. And can you describe how it relates?

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1 A. This is related to management and continuing

2 maintenance and construction of the storm water
3 drainage easements within the Barker Reservoir.
4 Q. Okay. And if you look to the second
5 paragraph of the first page of this document, does it
6 describe the proposed plan that the exhibit
7 references?
8 A. It does.
9 It says the proposed plan consists of
10 the construction of one drainage channel between an
11 84-acre tract of property to be developed by the
12 Kickerillo Companies in the Harris County Flood
13 Control District easement for unit T103-00-00.
14 Q. Okay. Is this a project that will drain into
15 the easement at DX50?
16 A. Yes, it is. It talks about maintenance of
17 the easement that's for an already existing improved
18 drainage area.
19 MS. DUNCAN: Your Honor, with that context,
20 the United States would offer Exhibit DX50.
21 THE COURT: Mr. Charest.
22 MR. CHAREST: No objection to the
23 admissibility of the document.
24 Again, as to the subject matter of the
25 testimony that will follow, we'll have to see how it

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1 goes.
2 THE COURT: All right. Admitted.
3 (Defendant’s Exhibit DX50 was received
4 in evidence.)
5 Q. BY MS. DUNCAN: Ms. Johnson-Muic, in this --
6 in the first page of Defendant’s Exhibit 130, is the
7 need for the project described?
8 A. Yes, ma'am.
9 It says that a no-action alternative is
10 unacceptable because drainage of the tracts totaling
11 131 acres is necessary to prevent flooding.
12 Q. I would like to turn your attention to 9659.
14 Q. Ms. Johnson-Muic, in the second and third
15 paragraphs, can you tell us what is described?
16 A. It's describing that the only viable
17 alternative for storm water, to be effectively and
18 efficiently removed from the subject property, is to
19 obtain easements to construct the drainage channels.
20 MR. CHAREST: Your Honor, I object again.
21 If she's reading and interpreting the
22 document, then her document -- there's no foundation
23 that says she knows anything about drainage at all.
24 She's reading and just kind of summarizing for the
25 Court.

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1 THE COURT: Mr. Charest, the Court accepts

2 that possibility.
3 But on the other hand, the document has
4 been admitted, and she's testifying, I take it,
5 really, as someone who is familiar with the files for
6 the easement.
7 MR. CHAREST: Well, if I may be permitted
8 some voir dire on that, sir, I don't think that's
9 accurate, and I don't think it's been established,
10 sir.
11 THE COURT: You can seek the testimony of
12 Ms. Johnson-Muic further on redirect.
15 Q. BY MS. DUNCAN: If we turn back to
16 Defendant’s Exhibit 801, I'd like to ask you about
17 the last easement depicted on this exhibit, labeled
18 Harris 0001088, and to do that, I'd like to turn your
19 attention to Defendant’s Exhibit 84.
21 Q. And for this exhibit, it might be helpful to
22 put pages 1 and 2 on the screen.
23 Ms. Johnson-Muic, are you familiar with
24 this document?
25 A. Yes, I am.

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2 A. This is an Army easement for channel -- a
3 diversion channel in Barker dam, granted to the
4 Harris County Flood Control District for a period of
5 50 years.
6 Q. And what is the stamp and signature at the
8 A. It's stamped as a certified copy from the
9 County Clerk, where it's recorded in the public deed
10 records.
12 offers Exhibit 84 into evidence.
14 THE COURT: What is the date of the document,
15 please?
16 Q. BY MS. DUNCAN: Ms. Johnson-Muic, can
17 you -- if you turn to page 1093, can you tell us who
18 signed the document and when, and in particular to
19 address Judge Lettow's question?
20 A. Yes. It's been signed by the Galveston
21 District Corps of Engineers' real estate chief, and
22 it's dated 24 October 1983.
25 evidence.)

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2 familiar with documents that speak to the need for
3 this project?
4 A. Yes, ma'am.
6 Exhibit 28.
9 document?
10 A. Yes, ma'am.
11 Q. And where did this document come from?
12 A. From the Galveston District real estate
13 historical files.
15 A. This is a document prepared by Harris County
16 Flood Control District in February of 1983,
17 discussing the proposed improvements for Mason Creek
18 at Barker Reservoir.
21 MR. CHAREST: I think it's Joint Exhibit 28,
22 but no objection.
23 MS. DUNCAN: Excuse me, I apologize. You're
24 right, Joint Exhibit 28.

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2 evidence.)
3 Q. BY MS. DUNCAN: Ms. Johnson-Muic, can I turn
4 your attention to the page ending in 2967?
6 Q. And specifically to the bottom section on
7 this page titled "Need for Project."
8 Can you tell us what the need for the
9 project was described to be?
10 MR. CHAREST: Objection; again, foundation.
11 She's not been asked to read the
12 document this time. Now she's actually asking for
13 her own opinion, which she has no basis to give.
15 Q. BY MS. DUNCAN: Ms. Johnson-Muic, what is
16 described in this document as the need for the
17 project?
18 A. The document describes an August of 1981
19 severe flooding that occurred in the Nottingham
20 Country subdivision that's located along Mason Creek,
21 upstream from the Barker Reservoir.
22 Then it goes on to say that the existing
23 Mason Creek channel within the Barker Reservoir is
24 inadequate -- extremely inadequate to convey existing
25 flood flows, which resulted in damaging backwater

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1 effects on existing subdivisions upstream of Barker

2 Reservoir.
3 And the proposed channel improvement
4 project will allow the existing condition 100-year
5 flood flows to be discharged into the reservoir with
6 non-damaging backwater effects.
7 Q. The next section is titled "Alternatives
8 Considered."
9 Can you tell us -- can you describe what
10 the document says in regard to the alternatives
11 considered and how they relate to the flooding you
12 just described?
13 A. The document describes three alternatives;
14 one taking no action at all, one improving the
15 present channel, and then one where they would
16 realign the channel. And it describes how the
17 channel realignment alternative would result in the
18 least amount of environmental damage and the best
19 improved flood protection of the upstream existing
20 developments.
21 Q. And if we turn back to the first alternative
22 considered, A, what is stated in relation to
23 flooding?
24 A. It says that, "However, the reduction of
25 upstream flooding would not occur with the no-action

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1 alternative, and the whole purpose of the project is

2 to reduce the flooding potential," and that's why
3 this alternative was not selected.
4 Q. Ms. Johnson-Muic, now turning to Defendant’s
5 Exhibit 800, the Addicks map.
6 I'd like to ask you about the easement
7 on the west side of this map titled Harris0001055.
8 And to do so, I'd like to turn your attention to
9 Defendant’s Exhibit 53 [sic], bearing the Bates
10 Harris0001055.
12 Did you say Defendant’s Exhibit 53?
13 Q. 153.
16 Defendant’s Exhibit 153?
17 A. Yes, ma'am.
18 Q. And what is this exhibit?
19 A. This is an easement for a bypass channel
20 located at the Addicks dam, granted by the Army to
21 the Harris County Flood Control District in Harris
22 County for a term of 50 years.

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1 THE COURT: What is the date of the document?

2 MS. DUNCAN: We'll turn to that right now,
3 your Honor.
4 Q. Ms. Johnson-Muic, can you turn to page 1062,
5 and can you tell us when this document was signed and
6 by whom?
7 A. Yes.
8 It was executed by the Chief of Real
9 Estate in the Galveston District on April 28th of
10 2000, and also executed by the Harris County Flood
11 Control District County Judge in April of 2000.
14 evidence.)
16 familiar with documents that speak to the purpose of
17 this easement?
18 A. Yes.
23 document?
24 A. Yes, ma'am. This is a finding of no
25 significant impact for the Bear Creek diversion

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1 channel.
3 A. From the real estate historical files in the
4 Galveston District.
5 Q. What is the date of this document?
6 A. March 14th of 2000.
12 evidence.)
13 Q. BY MS. DUNCAN: Can I turn your attention to
14 the last paragraph and tell us what is described
15 there?
16 A. Yes, it states that the no-action alternative
17 was considered but concluded as unacceptable to
18 allow -- it's unacceptable to allow the continuation
19 of out-of-banks flooding of populated areas around
20 Bear Creek outside of government-owned land. The
21 diversion channel is the least damaging improvement
22 to drainage along the stream corridor from an
23 environmental standpoint.

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2 Q. Are you familiar with this document?
3 A. Yes.
5 A. This is the environmental assessment for the
6 proposed Bear Creek bypass channel.
7 Q. And what is the date of this document?
8 A. It has a revised date of February 2000.
10 A. From the Galveston District Project real
11 estate office, historical files.
17 evidence.)
18 Q. BY MS. DUNCAN: Ms. Johnson-Muic, please turn
19 to page 5228.
21 Q. And particularly the section at the top
22 titled "Alternatives." Can you tell us what the
23 document describes?
24 A. It states that there are no feasible or
25 economical alternatives that exist, and the proposed

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1 bypass channel would convey the storm water flow in

2 the most efficient manner.
3 Q. Ms. Johnson-Muic, turning back to Defendant’s
4 Exhibit 800.
6 Q. If we look to the -- moving northeast on the
7 map, if we look to the easement labeled
8 Harris0001073, I would like to ask you about that
9 easement, and to do so, let's turn to Defendant’s
10 Exhibit 45.
12 Q. Ms. Johnson-Muic, take a look at this
13 document. Are you familiar with it?
14 A. Yes, I am.
16 A. This is an Army easement for a drainage ditch
17 at the Addicks dam from the Secretary of the Army,
18 granted for a term of 50 years to the Harris County
19 Flood Control District.
20 MS. DUNCAN: The United States offers
21 Defendant’s Exhibit 45 into evidence.
23 THE COURT: What is the date of the document?
24 Q. BY MS. DUNCAN: Yes, your Honor.
25 Ms. Johnson-Muic, can you turn to the

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1 page ending in 1077?

2 A. Yes.
3 Q. And what is the date of the signed easement
4 and who signed it?
5 A. It's been signed by the Chief of Real Estate
6 Division for the Corps of Engineers, Galveston
7 District, on 16 May of 1973.
10 evidence.)
11 Q. BY MS. DUNCAN: Ms. Johnson-Muic, turning to
12 the first page of this document, what's reflected on
13 this first page?
14 A. This is a Harris County Commissioner's
15 document that reflects the item being on their
16 agenda, and actually reflects the vote for and
17 against, and shows that the drainage easement was
18 approved.
20 documents that speak to how the drainage easement
21 that we just discussed functioned after it was built?
22 A. Yes.

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2 document?
3 A. Yes.
5 A. This is a letter from Vinson & Elkins Law
6 Firm to the Galveston District real estate chief
7 dated July of 1979.
8 Q. And what is it in relation to?
9 A. It's in relation to the easement related to
10 the Harris County Flood Control District in 1973.
12 A. The Galveston District real estate historical
13 office.
19 evidence.)
20 Q. BY MS. DUNCAN: Ms. Johnson-Muic, does the
21 letter indicate who is responsible for maintenance of
22 the outgrant?
23 A. Yes, it does.
24 Q. And who is that?
25 A. It indicates that the Harris County Flood

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1 Control District is responsible for maintenance, and

2 this letter is essentially a notification to the
3 district of their intent to maintain the drainage
4 district or drainage ditch.
5 Q. And does the letter speak to why the
6 maintenance is needed?
7 A. Yes.
8 It indicates that it needs to be cleaned
9 out of debris, silt, and removal of trees, in order
10 to restore the ditch to its design configuration.
11 Q. And if we turn to the second paragraph, does
12 the letter speak to what happened while the ditch was
13 not maintained?
14 A. Yes, it indicates that the ditch has been
15 blocked to the point that several houses in the
16 district have been flooded recently, and the other
17 1400 homes in the district have been endangered.
18 Q. Ms. Johnson-Muic, I'd like to turn your
19 attention back to Defendant’s Exhibit 800.
20 Let's look at the last easement on this
21 map, labeled Harris0001101, and that is -- and to do
22 that, I'd like to turn to Defendant’s Exhibit 91.
25 document?

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1 A. Yes.
3 A. This is an easement for right-of-way for
4 channel improvements at the Addicks dam, granted by
5 the Army to Harris County for a period of 50 years.
6 Q. And I'll note for the record that the Bates
7 number is falling off the page, but it reads
8 Harris0001101.
9 Ms. Johnson-Muic, if you turn to the
10 page ending in 1106, can you tell us who signed this
11 document and when?
12 A. Yes.
13 This was signed by the Chief of Real
14 Estate in the Galveston District, January 24th of
15 1986, and also signed by a representative of Harris
16 County on January 14th of 1986.
22 evidence.)
24 familiar with documents that speak to the need for
25 this project?

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1 A. Yes.
3 Exhibit 35.
6 document?
7 A. Yes, I am.
9 A. This is a memorandum from the chief of the
10 design branch in the Galveston District dated July
11 10 -- or July 30th of 1985.
13 A. The Galveston District real estate historical
14 files.
15 Q. And are you familiar with the documents that
16 come behind the first page?
17 A. Yes.
18 Q. And how do they relate to the document on the
19 first page?
20 A. Well, they're additional correspondence about
21 proposed improvements over the Langham and Horsepen
22 Creek.
24 offers Joint Exhibit 35 into evidence.

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3 evidence.)
4 Q. Ms. Johnson-Muic, if you turn to the page
5 ending in 3239, and that's the USACE Bates number.
6 I would like to direct your attention to
7 the middle section titled "Need for Project."
8 What does the document describe as the
9 need for this project?
10 A. It states that in August of 1981 major
11 flooding occurred from a storm which produced
12 approximately 10 inches of rain in 36 hours, which
13 approximates a 25-year event, and that the Langham
14 and Horsepen Creeks rose out of their banks and
15 flooded property outside of the reservoir boundary,
16 including several homes in the Bear Creek Village
17 subdivision.
18 In the project they're proposing, the
19 channel realignment, will allow the ultimate
20 condition 100-year flood flows to be discharged into
21 the reservoir with non-damaging backwater effects.
22 MS. DUNCAN: Your Honor, may I have a moment
23 to confer with my co-counsel?
24 THE COURT: Yes.
25 (Counsel confer.)

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1 MS. DUNCAN: No further questions.

2 We pass the witness.
3 THE COURT: All right. Thank you.
4 Mr. Charest, redirect.
7 BY MR. CHAREST:
8 Q. Ms. Johnson-Muic, you're not an expert in
9 drainage, are you?
10 A. No, sir.
11 Q. All right. So you've been reading and
12 summarizing a series of documents for us; right?
13 A. Yes.
14 Q. Without providing any additional substance to
15 those documents based on your personal experience or
16 knowledge; correct?
17 A. Correct.
18 Q. You didn't have any involvement with any of
19 the events that transpired in any of the documents
20 that you've read to the Court and summarized to the
21 Court with respect to any of those easements and
22 drainage ditches; correct?
23 A. Not personally, no.
24 Q. Right.
25 When you said the only option was to

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1 allow channelization in a way that was described,

2 that's you talking without any real understanding of
3 what options were available or not available;
4 correct?
5 A. I was reading what the authors said in the
6 instrument.
7 Q. Well, there was one moment where you said
8 there was no other option without reference to a
9 document, but I want to be real clear: Anytime you
10 say there was no other option, it's not based on your
11 personal knowledge. It's based on your
12 interpretation of the documents; correct?
13 A. Yes.
14 Q. Great.
15 Then you were not here in Court
16 yesterday when Mr. Vogler from the Fort Bend County
17 Drainage District said other options were available,
18 were you?
19 A. No, I was not here.
20 Q. Okay. All of the work that was done with
21 respect to any of those drainage ditches was done by
22 entities that are not the United States; correct?
23 A. Can you repeat that?
24 Q. Sure.
25 The government granted an easement at

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1 the request of non-US federal entities; correct?

2 A. Yes, sir.
3 Q. And it was the non-US federal entities that
4 did the work to dig the ditches and actually allow
5 the drainage to proceed; correct?
6 A. Yes, sir, and without -- under the outgrants,
7 that's their responsibility.
8 Q. And that work is not part of the Buffalo
9 Bayou project that we're talking about here in this
10 case; correct?
11 A. No.
12 Q. No?
13 A. It's not part of the federal project.
14 Q. Thank you.
15 Now with respect to your testimony about
16 policies, your testimony about any policy that
17 governed the Corps in connection with the '40s is
18 based, again, only on your review of documents and
19 your interpretation of those documents; correct?
20 A. I didn't understand part of what you said in
21 connection with --
22 Q. So we're shifting gears.
23 Now we're going to talk about policies;
24 all right?
25 In connection with all of your testimony

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1 about what policies did or did not exist, and what

2 they were or were not around the '40s, that's
3 entirely based on your reading of historical
4 documents and interpreting them here for the Court
5 today; correct?
6 A. Yes, it is.
7 Q. Right.
8 So you don't have any personal knowledge
9 of that; right?
10 A. No, sir.
11 Q. Right.
12 And it's not like you're some sort of
13 savant that can go back in time and -- seer, you're
14 not some sort of seer that can go back in time and
15 know what everyone had in their hearts and minds;
16 right?
17 A. I'm not.
18 Q. So you are reading the same documents that
19 the Court is, as I am, into the record?
20 A. Yes.
21 Q. And your testimony about the later
22 applicability of the regulations, particularly in the
23 '70s and the '80s and '90s, and particularly the
24 ETL-1110-2-22, that's also based on your
25 interpretation of what was happening back then, and

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1 your sort of application of what you believe is going

2 on now in the Corps to what probably happened back
3 then; correct?
4 MS. DUNCAN: Objection; vague.
6 THE WITNESS: Yes.
7 Q. BY MR. CHAREST: Because you weren't there in
8 the '90s and '80s and '70s when these regulations
9 were coming out; right?
10 A. I was not.
11 Q. And you agree with me that the people that
12 were living in that time would have a better
13 understanding of whether or not ETL-1110-2-22 was
14 applicable or not; correct?
15 A. Yes.
16 Q. Right.
17 Please give me Exhibit 44,
18 Plaintiffs' -- sorry.
19 Yeah, Plaintiffs' Exhibit 44.
20 Flip, if you would, to --
21 Well, first, so the Court can see what
22 we're looking at.
23 All right. So that's -- we're looking
24 at Plaintiffs' 0044.
25 Now, please turn to USACE570695, and

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1 show me paragraph 6 if you would, please.

3 Q. And highlight the second sentence of the
4 paragraph, please.
5 Ms. Johnson-Muic, you're really good at
6 reading documents. Can you read that for us, please.
7 A. The highlighted section says, "Acquisition of
8 upstream real estate to the SPF pool elevation plus
9 freeboard is necessary to comply with ETL-1110-2-22."
10 MR. CHAREST: No more questions, your Honor.
11 Wait; I'm sorry. One more.
12 Q. What's the date of that document, ma'am?
13 Zoom out on that.
14 A. Could you make that a little bigger? I mean
15 down further.
16 Q. It's right in front of you.
17 A. No, I have to read it first, because I...
18 MR. CHAREST: May I approach?
19 THE WITNESS: It appears this was dated 17
20 October 1980.
21 Q. BY MR. CHAREST: All right. So this is what
22 the Corps was saying about the applicability of
23 ETL- --
24 THE COURT: It's actually October 1980.
25 MR. CHAREST: Actually, for the record --

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1 THE WITNESS: What did I say?

2 I'm sorry, yeah, it's 17 October 1980,
3 and it's authored by the division engineer.
4 MR. CHAREST: Good enough for me.
5 Thank you.
6 MS. DUNCAN: No further questions.
7 THE COURT: All right. May the Court excuse
8 Ms. Johnson-Muic?
10 MR. CHAREST: Yes.
12 Ms. Johnson-Muic, you are excused, and
13 thank you very much for coming. Thank you very much
14 for testifying.
15 I take it you're based in Galveston?
16 THE WITNESS: Dallas.
17 THE COURT: In Dallas.
19 THE COURT: Okay. Thank you.
21 MR. CHAREST: If I may, with respect to
22 housekeeping, I think the next person back on the
23 docket is Mr. Thomas.
24 THE COURT: Mr. Thomas, you got a reprieve.
25 I'm not sure it was a restful one, because you knew

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1 you were coming back.

2 Welcome back.
3 THE WITNESS: Thank you, sir.
4 THE COURT: Mr. Shapiro, you may proceed.
5 MR. SHAPIRO: Thank you, your Honor.
6 CROSS-EXAMINATION
7 BY MR. SHAPIRO:
8 Q. Good morning, Mr. Thomas.
9 Mr. Thomas, when last we spoke, we were
10 up to about 1992 or so, and I think we had just
11 discussed, just for the record, a document PX1213,
12 which was a June 23rd, 1992, document, in which the
13 Corps' Public Affairs Office had approved a public
14 notice regarding the possibility of upstream flooding
15 to numerous media outlets.
16 Do you recall that document?
17 A. Yes.
18 Q. I want to turn to now what has been marked as
21 MR. SHAPIRO: May I approach, your Honor?
22 THE COURT: Yes.
23 What is the number again, please?
24 MR. SHAPIRO: This is Defendant’s Exhibit
25 895. I'm going to bring a copy to your Honor.

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2 MR. EASTERBY: Is this a new exhibit?
3 MR. SHAPIRO: It is.
4 MR. EASTERBY: Your Honor, I would certainly
5 object inasmuch as this was not included in their
6 exhibit list.
8 MR. SHAPIRO: It is not on our exhibit list,
9 your Honor, and I can explain why.
10 THE COURT: Well, that would be interesting.
11 Let's do that first.
12 MR. SHAPIRO: Your Honor, this was originally
13 labeled as PX1167 on Plaintiffs' exhibit list, which
14 was filed in January. We filed our exhibit list in
15 April, on April 4th, and we explicitly stated in our
16 exhibit list that we reserved the right to use any
17 exhibit on Plaintiffs' exhibit list.
18 Plaintiffs filed an amended exhibit list
19 on April 23rd, and the same document was listed again
20 as PX1167.
21 Last Friday, on May 3rd, Plaintiffs sent
22 us an amended list which made several changes,
23 including the removal of several hundred documents.
24 When we asked why they were filing a
25 revised amended list, they stated in an e-mail that

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1 it was thought to remove some duplicates.

2 That wasn't the case with respect to
3 this document, so we had to label this as a new
4 defense exhibit.
5 THE COURT: Well, I'm sure the Plaintiffs, as
6 well as the defense, have had to accommodate the time
7 limitations for trial.
8 Let's hear from Mr. Easterby.
10 And another reason for the removal of
11 this, and I will fully take ownership of that
12 decision, is it is a compilation of handwritten
13 notes. I mean, I don't even think you can call this
14 one document. But it's a bunch of handwritten notes,
15 and as I read the pretrial order, it was going to be
16 very difficult to get these kinds of documents
17 admitted because it's got handwritten notes and
18 annotations throughout it.
19 So it's not on their exhibit list; it's
20 got all these handwritten notes and annotations on
21 it; and for that reason, we would object to it being
22 admitted into evidence.
23 THE COURT: Well, we haven't gotten that far.
24 We really haven't gotten to foundation.
25 But on the other hand, the Court accepts

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1 that it may be proper, but whether or not it's

2 admitted is another matter.
3 I accept the fact that it was removed
4 just before trial from Plaintiffs' list and the
5 defense might have relied on the fact that it was on
6 a list.
7 MR. SHAPIRO: That is correct, your Honor.
8 And as I stated in our April 4th exhibit
9 list filing, we explicitly stated we reserve the
10 right to use any exhibit on Plaintiffs' list.
11 THE COURT: All right.
12 MR. SHAPIRO: Mr. Thomas, what is the --
13 THE COURT: Mr. Easterby.
14 MR. EASTERBY: The objection stands, your
15 Honor, but if you would like to allow some attempt or
16 opportunity to say he's familiar with this
17 handwriting, and he can recognize it and all that, go
18 for it.
19 THE COURT: Well, we'll find out.
20 Q. BY MR. SHAPIRO: Mr. Thomas, what is the
21 title of this document?
22 A. "Addicks and Barker Reservoirs Section 216
23 Study, Coordination Meeting, Harris County Flood
24 Control District/Corps of Engineers, 16 June 1994."
25 Q. Now, just to reorient ourselves, are you

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1 aware of any Section 216 study that was going on, on

2 or about June 16th, 1994?
3 A. Yes, sir.
4 Q. And what was that, sir?
5 A. It refers to the Reconnaissance Report that
6 we were talking about.
7 Q. Is that the 1995 Reconnaissance Report that
8 you testified about when you were answering questions
9 from Plaintiffs' counsel?
10 MR. EASTERBY: Objection; leading.
11 THE WITNESS: That is the 1995 Reconnaissance
12 Report that we talked about.
13 Q. BY MR. SHAPIRO: There are -- what would you
14 understand this first page to be, Mr. Thomas?
15 MR. EASTERBY: Your Honor, before he starts
16 asking those kinds of questions, I think he's got to
17 try to get it into evidence.
18 MR. SHAPIRO: I'm not asking him to read the
19 document, I'm asking what he understands the first
20 page of this document to be.
21 THE COURT: That question is allowable.
22 MR. EASTERBY: Understood.
23 THE WITNESS: A list of attendees.
24 Q. BY MR. SHAPIRO: And as an employee of the
25 Corps, have you ever attended meetings?

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1 A. Yes, sir.
2 Q. And are there sometimes a list of attendees
3 that looks similar to what you're seeing here on this
4 first page?
5 A. Yes.
6 Q. And tell me how an attendee list works.
7 MR. EASTERBY: Your Honor, is he saying that
8 this witness is familiar with that process back in
9 1994? Or that the witness attended this alleged
10 meeting?
11 THE COURT: He's not on the attendee list,
12 and I haven't heard anything that would indicate
13 familiarity with the coordination meeting that might
14 be the subject of the first page.
15 MR. SHAPIRO: Well, your Honor, I mean, it's
16 been established that Mr. Thomas was not employed by
17 the Corps at the time.
18 This is an ancient document dated June
19 16th, 1994.
20 It is, as we'll see in a minute -- I'll
21 proffer to the Court that it is signed by individuals
22 that were working for the Corps at that time, which I
23 believe this witness may be able to identify.
24 THE COURT: Well, we'll find out. We need to
25 go further.

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1 Q. BY MR. SHAPIRO: Mr. Thomas, do you recognize

2 any of the acronyms in the -- that are included on
3 this page?
4 A. Yes, sir.
5 Q. And can you tell the Court what acronyms you
6 might recognize?
7 MR. EASTERBY: Is he referring to the
8 handwritten notations under office?
9 THE COURT: Undoubtedly.
10 Let's find out, Mr. Easterby.
11 MR. SHAPIRO: If I could, Plaintiffs have
12 stipulated to the authenticity of this document. The
13 authenticity is not in dispute. This was a
14 Plaintiffs' exhibit.
15 THE COURT: Mr. Shapiro, you made your point.
16 Let's just go forward. We're taking
17 extra time here.
18 Q. BY MR. SHAPIRO: You stated that you
19 recognized some of the acronyms on that first page?
20 A. Yes, sir.
21 Q. Which ones do you recognize?
22 A. SWG.
23 Q. What is that?
24 A. The acronym for the Galveston District.
25 Q. Of the Army Corps of Engineers?

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1 A. Yes, sir.
2 Q. And go ahead if you could.
3 A. The PL-P is the planning section and the
4 planning division at the time.
5 PM-G, I believe, was the programs
6 branch.
7 PM-J, the project management branch.
8 Q. Of the Corps?
9 A. All of the Corps so far; yes, sir.
10 The EE-EP was the engineering division.
11 I'm not sure about the EP.
12 The ED-HD was the engineering division,
13 and it was the H & H branch or section at the time.
14 The HCFD -- HCFCD is the Harris County
15 Flood Control District.
16 Q. And on the first line, are you able -- or
17 excuse me, the first column, are you able to
18 recognize or can you read any of those names?
19 A. Some of them.
20 Q. That first one, what does that one say to
21 you?
22 MR. EASTERBY: Your Honor, I have to renew my
23 objection. He's just reading the handwritten
24 notations. He just said he didn't -- he wasn't sure
25 about PM-J. There is no legend on this. How is he

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1 able to divine what these PL-P and PM-J mean? I

2 don't see how he can possibly know that.
3 MR. SHAPIRO: There is a legend on it. It is
4 Addicks and Barker Reservoir Section 216 Study,
5 Coordination Meeting, Harris County Flood Control
6 District/Corps of Engineers.
7 THE COURT: One of the problems that's going
8 to arise is not with the first page, it's going to
9 arise with respect to the subsequent pages, because
10 the Court understands Mr. Shapiro to be invoking or
11 potentially invoking Rule 901(b)(8). He has to
12 establish certain foundational requirements for the
13 admissibility of an ancient document.
14 We're just beginning that process.
15 Let's proceed.
16 Q. BY MR. SHAPIRO: Do you recognize any of
17 those names, sir?
18 A. Yes, sir.
19 Q. Which ones do you recognize?
20 A. So, like, Jerry Pool is first.
21 Q. And who is that?
22 A. He worked -- I think he was a planning lead
23 at the time. I've seen some letters that he wrote.
24 Q. What organization did Mr. Pool work for?
25 MR. EASTERBY: Your Honor, lack of

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1 foundation. I mean, how does he know this? Where is

2 the foundation that he knows who Jerry M. Rule is or
3 Pool, whatever that says.
4 THE COURT: Pool.
5 Well, he has just said that he knows.
6 We'll take it a step at a time. This is going to be
7 a process.
8 Let's continue with the process.
9 Q. BY MR. SHAPIRO: You stated you recognize
10 Mr. Pool's name?
11 A. Yes, sir.
12 Q. And where have you seen that before?
13 A. On other letters.
14 And also talked to other people in the
15 district that knew Mr. Pool.
16 Q. And, again, what office did he work in?
17 A. I think he was a planning lead.
18 Q. With the Army?
19 A. The planning office.
20 Q. With the Army Corps of Engineers?
21 A. With the Galveston District of the Army Corps
22 of Engineers.
23 Q. Do you recognize any of the other names on
24 this?
25 A. Yes, sir.

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1 Q. And who else do you recognize?

2 A. So Richard Tomlinson. His last name is
3 T-o-m-l-i-n-s-o-n. I believe he was a project
4 manager at the time.
5 Mike Bragg. Last name B-r-a-g-g. He
6 was an engineer at the time.
7 William Wise, W-i-s-e, I think he was a
8 project manager at the time.
9 I also knew him personally.
10 Gerald Dunaway was a hydraulic engineer
11 at the time. His last name is D-u-n-a-w-a-y. And I
12 also knew him personally.
13 I think that is it.
14 Q. Have you attended meetings with the Harris
15 County Flood Control District?
16 A. Yes, sir.
17 Q. And have you ever signed an attendee list
18 similar to the one we're seeing here on the first
19 page?
20 A. Yes, sir.
21 Q. Is it sometimes the case that during meetings
22 of this sort, individuals will make handwritten
23 notes?
24 MR. EASTERBY: Your Honor, I mean I want a
25 running objection on this at least. Mr. Thomas was

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1 probably in college when this meeting occurred, and

2 for him to say he's familiar with protocol for
3 signing the sheets, or to have any knowledge of what
4 transpired in here through handwritten notes, there's
5 no way he can recognize the handwriting of these
6 individuals.
7 MR. SHAPIRO: If I could, your Honor.
9 MR. EASTERBY: They may have written
10 something when he was in college.
11 THE COURT: What was that, Mr. Easterby?
12 MR. EASTERBY: That he could recognize the
13 handwriting of individuals.
14 THE COURT: He might, possibly. That's quite
15 possible. '94, to the Court, is not that long ago.
16 I'm sorry. Everybody has their own
17 perspective on these things.
18 MR. EASTERBY: I would like to at least have
19 a running objection to this.
20 THE COURT: You have. It's allowed.
21 MR. EASTERBY: Thank you, your Honor.
22 MR. SHAPIRO: And, your Honor, I think the
23 Court can take judicial notice of what an attendee
24 list is and how that operates.
25 THE COURT: I'm familiar with the process.

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1 MR. SHAPIRO: Unfortunately, I think we

2 probably all are.
3 THE COURT: Well, I wouldn't say that.
4 Everyone in the courtroom might be, but it's
5 possible.
6 Q. BY MR. SHAPIRO: During these meetings with
7 Harris County Flood Control District, have you ever
8 seen individuals take handwritten notes during the
9 meetings?
10 A. Yes, sir.
11 Q. And have you done so yourself?
12 A. Yes, sir.
13 Q. And what is -- what is your practice after
14 you take handwritten notes? What would you do with
15 that document?
16 A. Currently I write it into an electronic file
17 and save the electronic file.
18 Q. And do you save it -- do you save that --
19 that -- the documents somewhere, either the
20 handwritten notes themselves or the electronic file
21 nowadays?
22 A. I do.
23 Q. And does that -- where do you keep that?
24 A. So it depends on the meeting. Either on my
25 personal computer for some items that are only

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1 related to some things specific to me, or into a file

2 for any project-related notes that we set up a filing
3 system for every project, and then we have a folder
4 for meetings, and we'll save notes in there
5 routinely.
6 Q. And have you seen -- you're familiar with at
7 least some of the documents that are housed at the
8 Army Corps of Engineers in Galveston, are you not?
9 A. Yes, sir.
10 Q. And have you seen handwritten notes from
11 various meetings over time?
12 A. Yes, sir.
13 Q. Are they normally saved at the Army Corps of
14 Engineers?
15 A. Yes, sir.
16 Q. Do you see on the first page there's a Bates
17 number at the bottom that starts with USACE?
18 A. Yes, sir.
19 Q. Does that mean that this document was found
20 in the files at the US Army Corps of Engineers?
21 A. Yes, sir.
22 Q. And turned over to Plaintiffs in accordance
23 with our discovery obligations?
24 A. Yes, sir.
25 Q. If you could turn to the second page.

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1 Do you see some handwritten notes there?

2 A. Yes, sir.
3 Q. What would you think those would be?
4 MR. EASTERBY: Your Honor, I've got to renew
5 the objection.
6 Pursuant to Federal Rule of Evidence
7 901(b)(2), there has been no foundation laid that
8 this witness has any knowledge or understanding about
9 the handwriting that is on this to be genuine or to
10 be associated with any particular individual. He's
11 not a handwriting expert, and there is no way he can
12 say he recognizes the handwriting of these folks from
13 back in '94. That's crazy.
14 THE COURT: Well, we'll find out.
15 Q. BY MR. SHAPIRO: What would you imagine that
16 to be?
17 MR. EASTERBY: Imagine?
18 THE COURT: That's not going to do it.
19 Q. BY MR. SHAPIRO: Well, what do you
20 think -- as you sit here now and look at that page,
21 what do you understand that to be?
22 A. It looks like meeting notes taken during a
23 meeting.
24 Q. And do you have any idea, sir, looking at
25 this, what meeting it might relate to?

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1 A. It does have the title of the meeting, as

2 well as the date and time on the top of the page.
3 Q. And does that -- does that date, time, and
4 title correlate to the typed date and time on the
5 first page?
6 A. Yes, sir.
7 THE COURT: Excuse me, Mr. Easterby.
8 MR. EASTERBY: I mean, Judge, this has got
9 about six objections we could lodge against it beyond
10 what I already have, but it's also hearsay.
11 If they are going to offer these
12 handwritten notes for the proof of the matter
13 asserted, they have to get a witness in here who was
14 at this meeting. Maybe Mr. Long could do it, because
15 I think he was back around in those days, I don't
16 know, but Mr. Thomas was not.
17 And for him to start reading into the
18 record these handwritten notes, which there's been no
19 foundation laid that he can recognize, is improper.
20 THE COURT: Well, first of all, he's not
21 reading it into the record.
22 But second of all, we don't know who
23 made the handwritten notes. That's a significant
24 part of the problem.
25 We suspect that this is all part of one

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1 compilation of meeting notes from a meeting that was

2 held on June 16th, 1994, but we're going to have a
3 lot of trouble knowing.
4 We'll find out. We'll take it a step at
5 a time.
6 MR. EASTERBY: Yes, your Honor.
7 MR. SHAPIRO: If I could, your Honor, we're
8 not offering to show that the substance of the
9 document is true.
10 We are not offering it for the truth of
11 the matter asserted, so the hearsay objection
12 is -- should be rejected.
13 In addition, it is an ancient document.
14 MR. EASTERBY: It would be helpful to know
15 what it is being offered for.
16 THE COURT: Well, we'll find out. We really
17 will.
19 THE COURT: I hope. At some point. It might
20 be sometime in the future.
21 Q. BY MR. SHAPIRO: Mr. Thomas, I know it's not
22 your handwriting, but are you a handwriting expert,
23 sir?
24 A. I am not.
25 Q. Despite that, do you know or do you have any

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1 understanding of whose notes these might be on the

2 second page?
3 A. I do not.
4 Q. If you look at the -- towards the back, if
5 you look at the page ending in 836.
7 Q. During meetings of this kind, are there
8 sometimes with the Harris County Flood Control
9 District -- will the Corps sometimes, in your
10 experience, provide written materials to facilitate
11 discussion?
12 A. Yes, sir.
13 Q. And what do you understand the document on
14 page 836 to be?
15 A. So, it looks like a timeline related to the
16 dams.
17 Q. And does this look like something that the
18 Army Corps of Engineers would have prepared?
19 MR. EASTERBY: Your Honor, note for the
20 record it has no Corps of Engineers letterhead on it
21 or nothing to indicate it was prepared by the Army
22 Corps of Engineers.
23 Q. BY MR. SHAPIRO: Let's look at the next page,
24 on page 838.
25 Now, I want you to ignore the

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1 handwritten information. Do you recognize what is on

2 that page?
3 MR. EASTERBY: Well, that's not part of this
4 same thing. I --
6 MR. EASTERBY: There is a timeline, and now
7 he's on a separate page. That's not the timeline.
8 Q. BY MR. SHAPIRO: Do you recognize what's on
9 that page?
10 THE COURT: Just I moment, Mr. Shapiro.
11 What are we trying to do?
12 MR. SHAPIRO: Your Honor, I'm trying to lay a
13 foundation that these were materials that were
14 submitted to the attendees to this meeting back in
15 1994. That's the only purpose.
16 MR. EASTERBY: So the purpose is to try to
17 show that the entirety of DX895 was submitted to
18 everybody on the first page?
19 There is no way this witness can do
20 that, your Honor. They can't even establish this
21 compilation is one document.
22 MR. SHAPIRO: Your Honor, this strikes me as
23 not a difficult evidentiary problem here. What we
24 have here is a document that is titled. It is dated
25 on the first page. It is an ancient document. There

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1 is -- it is stored in the Corps' office. It is

2 Bates-numbered. It's been given to Plaintiffs, and
3 Plaintiffs have already conceded its authenticity.
4 That's a very key point.
5 MR. EASTERBY: Incorrect.
6 MR. SHAPIRO: That is not in dispute.
7 THE COURT: Let's stop a minute.
8 If the Court were a trial lawyer and
9 doing this, the Court would call a custodian of
10 documents and say this was a compilation bound
11 together or somehow together in the file, and this
12 was reflective of this particular meeting.
13 But we don't have -- I don't think
14 Mr. Thomas is in a position to do that.
15 Now, we can get over those problems on a
16 step-by-step basis, but we have to do it on a
17 step-by-step basis.
18 MR. SHAPIRO: Mr. Thomas has testified that
19 documents of this type are normally kept in the
20 normal course of the Corps' business.
21 THE COURT: And that's helpful, but we don't
22 know about this particular document.
23 MR. SHAPIRO: Well, your Honor, if I could,
24 the way these documents were produced to Plaintiffs
25 was, an enormous amount of documents were prepared

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1 and kept in a room down at the Galveston office.

2 Those were then scanned and provided to Plaintiffs in
3 this form, and so this is one document that was
4 provided to Plaintiffs. It was stored in the Corps'
5 offices as one document and provided to the
6 Plaintiffs as one document.
7 MR. EASTERBY: So counsel is trying to
8 testify as a custodian, your Honor, but they need a
9 custodian to prove that up.
10 I would note that if you look at
11 USACE314839, it's dated October 29th, 1993. This is
12 supposedly a meeting that's from '94.
13 MR. SHAPIRO: Well, that's correct, and your
14 Honor, that's because this is definitely one of the
15 handouts that was made at that meeting.
16 MR. EASTERBY: Oh, really? How could they
17 prove that?
18 THE COURT: Please, please. I almost never
19 raise my voice, but I'm tempted.
20 I'll stop in a minute, but I'm just
21 looking at page -- I don't see a number
22 unfortunately. It's the back of 831. It's a little
23 suspicious, because it shows 30 June meeting, 9:30
24 a.m. That's what I see.
25 It's a little difficult in the

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1 circumstances to piece all of this together.

2 MR. SHAPIRO: I'm sorry. I'm not seeing that
3 page, your Honor.
4 THE COURT: It's not numbered.
5 MR. EASTERBY: It's 832, your Honor, I
6 believe that you're referring to.
7 THE COURT: It is?
9 THE COURT: I don't see that number.
10 MR. EASTERBY: Well, the table is obscuring
11 it.
12 THE COURT: It's over on the side, and it's
13 got a hole-punch right next to it. It is 832.
14 MR. SHAPIRO: Your Honor, that's correct.
15 That's part of the handwritten notation. I read it
16 the same way, referring to a meeting that, according
17 to that date, would follow this meeting, which
18 occurred on June 16th, 1994.
19 THE COURT: Well, part of the reason we're
20 fussing with this, and the Court has skimmed part of
21 it, is that it apparently relates to the
22 non-government-owned land and the sufficiency of the
23 non-government -- or of the government-owned land to
24 contain the reservoir that would be formed by the
25 impoundment. And there is some calculations in here,

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1 and the question is whether or not this all relates

2 to preparatory steps for the 216 report.
3 Can you help out? When was the 216
4 Report actually issued?
5 Q. BY MR. SHAPIRO: Do you know the answer to
6 that, sir?
7 A. The Reconnaissance Report?
8 Q. Right.
9 What year was it?
10 A. 1995, late October. 1995.
11 MR. EASTERBY: And Judge, to your point about
12 the calculations, I'm sitting here taking notes right
13 now. I promise you I would not share that with the
14 other side, so that doesn't mean that anything in
15 this was disclosed or provided to flood control or
16 any of the other attendees.
17 THE COURT: I'm tempted to ask the parties if
18 they can stipulate the preparatory meeting was held
19 on 16 June '94, as a precursor to the actual
20 development of the Reconnaissance Report that was
21 issued a year later.
22 MR. EASTERBY: If they have some other means
23 of doing that other than this document, I'm sure we
24 could.
25 THE COURT: Could we stipulate to that and

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1 stop fussing with the document?

2 MR. SHAPIRO: I think that's a fair
3 resolution, as they would rely not on the handwritten
4 notations, but just on the typed notations.
5 THE COURT: Mr. Easterby, can you stipulate
6 to that?
7 MR. EASTERBY: So the stipulation is that
8 there was a meeting in mid-June of '94, and that's
9 it?
10 THE COURT: As a preparatory meeting to the
11 complete -- or development and completion of the
12 Reconnaissance Report which was issued the following
13 year.
14 MR. EASTERBY: Unfortunately, your Honor, I
15 think that goes too far. This is a coordination
16 meeting, and that's all it says.
17 THE COURT: I accept the amendment,
18 coordination meeting in contemplation of a
19 Reconnaissance Report on June 16 that was issued the
20 subsequent year.
21 MR. SHAPIRO: Yes, your Honor, we agree with
22 that. It was done as part of the preparation of the
23 report.
24 THE COURT: Do you agree with that,
25 Mr. Easterby?

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1 MR. EASTERBY: If that is it and this exhibit

2 does not come into evidence, and we get past it, yes.
4 We shall.
5 MR. SHAPIRO: Can we admit the exhibit, and
6 the Court will not take notice of the handwritten
7 materials, if that will get the first page without
8 the notation on it?
9 THE COURT: We can take the first page as
10 evidence of the attendees at such a coordination
11 meeting. We'll take the first page only.
12 MR. SHAPIRO: Thank you.
13 MR. EASTERBY: And, your Honor --
14 THE COURT: DX895 is admitted, limited to the
15 first page.
16 MR. EASTERBY: Fair enough, Judge.
17 Thank you.
18 (Defendant’s Exhibit 895 (first page)
19 was received in evidence.)
20 MR. SHAPIRO: I want to show you one more
21 exhibit.
22 And then perhaps, your Honor, we could
23 take our lunch break?
24 THE COURT: Oh, I'm sorry. I didn't realize
25 we were running over. We were having such an

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1 interesting time.
2 Q. BY MR. SHAPIRO: If we could turn, please, to
3 JX50.
5 Q. We're going to move ahead slightly in time.
6 That was a June 16th, 1994, meeting, and
7 now we're going to look a few weeks later.
8 JX50, do you recognize -- what is this,
9 Mr. Thomas?
10 A. So this is a letter from Mr. Donald VanSickle
11 with Espey, Huston & Associates.
12 Q. What's the date?
13 A. July 20, 1994.
14 Q. Where did it go?
15 A. To the planning division, plan formulation
16 branch of the Galveston District of the Army Corps of
17 Engineers.
18 Q. And can you tell what this letter was in
19 reference to?
20 A. It's in reference to a notice given on June
21 29th, 1994.
22 MR. EASTERBY: Your Honor, hold on.
23 He's reading from the document. It has
24 not been admitted into evidence.
25 I hate to keep doing this, but this,

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1 again, looks like some kind of compilation. The

2 first page, July 20th, '94. Second page, July 18th,
3 '94, and then there is some July 12th, '94, pertinent
4 data elevations. So this could not possibly be one
5 document.
6 And it is also hearsay, so we would
7 object on that basis.
8 THE COURT: Mr. Shapiro.
9 MR. SHAPIRO: We can take it one document at
10 a time. This was, again, a document that was
11 collected together in the reading room that was made
12 available to Plaintiffs as one document.
14 Q. BY MR. SHAPIRO: So the first -- we'll just
15 focus on this first page.
16 What do you understand this to be, then?
17 A. I understand that they are asking to be on a
18 mailing list for future announcements.
19 MR. EASTERBY: Your Honor, I'm sorry, but
20 it's got to be admitted before he starts reading from
21 the document.
22 THE COURT: He is not reading from it. He is
23 just indicating what he understands it to be. It's
24 not apparent to me that Mr. Thomas is the witness
25 that can essentially sponsor this particular

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1 document. We'll find out.

2 Q. BY MR. SHAPIRO: Mr. Thomas, you testified
3 this was directed to the planning division, plan
4 formulation branch within the Galveston District for
5 the Army Corps of Engineers.
6 Do you know what that is?
7 A. Yes, sir.
8 Q. What is that?
9 A. That's an office in the Galveston District at
10 the time that leads planning studies like the 1995
11 Recon Report.
12 Q. And there is a Bates number at the bottom of
13 this. Is that another USACE document?
14 A. Yes, sir.
15 Q. What does that indicate to you, sir?
16 A. That the we -- the U.S. Army Corps of
17 Engineers -- produced this for this case.
18 Q. And was this a document that was kept in the
19 normal course of the Army Corps' business?
20 A. Yes, sir.
22 MR. EASTERBY: Your Honor, one voir dire
23 question, if I may?
24 THE COURT: Yes.
25 VOIR DIRE EXAMINATION

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1 BY MR. EASTERBY:
2 Q. Mr. Thomas, is there still a plan formulation
3 branch at the Galveston District?
4 A. There is not.
5 It has moved to the Regional Planning
6 Environmental Center as part of our regional offices
7 now.
8 Q. So it's not in Galveston at all; right?
9 A. They have employees there, but the office
10 itself does not belong to the Galveston District.
11 Q. And when did that planning division of the
12 Galveston District cease to be there?
13 A. Maybe five or six years ago now. I forget
14 the exact time.
15 MR. EASTERBY: There is no foundation, Judge.
16 THE COURT: Let's just stop a minute.
17 It's not apparent that this document
18 goes to any real issue in the case, Mr. Shapiro.
19 MR. SHAPIRO: Well, your Honor, if I could
20 make a proffer.
21 THE COURT: Yes.
22 MR. SHAPIRO: We're about to see the June
23 29th, 1994, note.
24 THE COURT: All right. Let's do that.
25 MR. SHAPIRO: Do you want to look at that

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1 first?
2 THE COURT: Yes.
3 MR. SHAPIRO: Yes, sir.
4 THE COURT: Unless you want to take a lunch
5 break and take this afterwards.
6 MR. SHAPIRO: Perhaps I could just introduce
7 this document.
9 MR. SHAPIRO: May I approach?
10 THE COURT: Yes.
11 MR. SHAPIRO: Your Honor, this is a second
12 document that was removed -- removed by Plaintiffs on
13 Friday, immediately before trial from their
14 witness -- their exhibit list.
15 This, like the other one we just looked
16 at, was on their original exhibit list filed in
17 January. Their amended exhibit list was filed in
18 April, and removed on Friday, immediately before
19 trial.
20 MR. EASTERBY: Okay. And for the record --
21 THE COURT: We'll entertain it, but let's
22 focus on what it actually shows.
24 CROSS-EXAMINATION (CONT'D)
25 BY MR. SHAPIRO:

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1 Q. We've labeled this as Defendant’s Exhibit

2 896, and Mr. Thomas, if you could please turn to the
3 second page?
4 MR. EASTERBY: Your Honor, the first page,
5 July 11th, '94, is some letter written to the
6 Department of the Army. It has no enclosure. It has
7 no attachment. And then the next page is some public
8 announcement, and then there is a newspaper article.
9 MR. SHAPIRO: If I could.
10 THE COURT: I understand that. I can see
11 that, Mr. Easterby.
12 MR. SHAPIRO: We're going to start with the
13 attachment first.
15 Q. BY MR. SHAPIRO: I'm going to refer to it, as
16 it says, the document appearing on page ending 093.
17 Do you see that, sir?
18 A. Yes, sir.
19 Q. And what is this?
20 A. It is a public announcement for the Corps'
21 reevaluation of the Addicks and Barker reservoirs.
22 Q. And what is the date?
23 A. The date at the top is 29 June 1994.
24 Q. And then you see next to that date there is a
25 stamp of some kind. What does that say?

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1 A. It says, "Received HC Engineering, July 7,

2 1994."
3 Q. And is this on some sort of letterhead?
4 A. It is on Galveston District standard
5 letterhead.
6 Q. Do you recognize that letterhead?
7 A. Yes, sir.
8 MR. SHAPIRO: Your Honor, I move the
9 admission of this page first. This is Defendant’s
10 Exhibit 896, page ending 093.
11 MR. EASTERBY: Your Honor, I don't think he's
12 laid a foundation that this really was publicly
13 announced.
14 Oh, it also -- thank you.
15 It says "Received HC Engineering." Is
16 that at the Corps?
18 If you want voir dire you may ask about
19 it, because this could be a document --
20 MR. EASTERBY: I'm sorry, Judge.
21 THE COURT: -- that falls under 901(d)(8).
22 Federal Rule of Evidence 901(d)(8).
23 MR. EASTERBY: I'm not clear what this is
24 being offered for, to be honest with you.
25 THE COURT: We'll find out.

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1 Mr. Easterby.
2 MR. EASTERBY: Well, I'm maintaining the
3 objection until we know what it's being offered for.
4 THE COURT: I take it it's being offered for
5 the substance of the document; that is, a public
6 announcement.
7 MR. EASTERBY: Exactly.
8 Where's the foundation that there was a
9 public announcement?
10 MR. SHAPIRO: I could respond to that,
11 because the witness has already provided that
12 testimony.
13 MR. EASTERBY: I think the witness should
14 respond to that.
15 MR. SHAPIRO: If I could say, the witness
16 said it has a marking "HC Engineering."
17 THE COURT: Go forward.
18 Q. BY MR. SHAPIRO: If you turn back to the
19 first page. What does that appear to be, sir?
20 A. HC Engineering would be the Harris County
21 Engineering Department.
22 Q. And what is on this first page ending 092?
23 A. The seal of Harris County Engineering
24 Department. This is their letterhead, it appears.
25 Q. And without reading the document, what is

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1 this document relating to?

2 A. The mailing list for the reevaluation study.
3 Q. And do you see a reference there to a public
4 announcement made on June 29th, 1994?
5 A. I do.
6 Q. And does it appear that that public
7 announcement is attached --
8 A. It does.
9 Q. -- to this letter?
10 MR. SHAPIRO: I'd move the admission of this
11 document.
13 MR. EASTERBY: Your Honor, one question on
14 voir dire, if I may?
15 THE COURT: Yes.
16 VOIR DIRE EXAMINATION
17 BY MR. EASTERBY:
18 Q. Mr. Thomas, are you saying that you're
19 familiar with the Harris County Engineering receiving
20 stamp back in the July 1994 time period?
21 A. No, sir.
22 MR. EASTERBY: Thank you.
23 I still object, your Honor.
24 THE COURT: The first two pages of DX896 are
25 admitted under the rule of evidence -- Federal Rule

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1 of Evidence cited, but the Court draws a line at just

2 the first two pages.
3 The Court refuses to issue or enter into
4 evidence an article from the Washington Post.
5 MR. CHAREST: Just on principle?
6 THE COURT: I don't know about that.
7 MR. SHAPIRO: I think it's actually the
8 Houston Post. You might want to reconsider that,
9 your Honor.
10 THE COURT: Well, you're right.
12 THE COURT: Even so, I'm sorry.
13 You've got what you wanted, Mr. Shapiro,
14 the first two pages.
16 (Defendant’s Exhibit 896 (first two pages)
17 were received in evidence.)
18 MR. SHAPIRO: Now would be time for a quick
19 break.
20 THE COURT: Just let me make a note.
21 Anyway, DX -- just to recap, DX896 is
22 admitted insofar as the first two pages of the
23 document.
24 All this is fascinating, but it's time
25 for lunch. May we take a lunch?

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2 THE COURT: Mr. Thomas, another break for
3 you.
4 We're in recess for an hour.
6 recess.
7 (Recess: 12:15 p.m. - 1:26 p.m.)
9 Mr. Shapiro, you may proceed.
12 BY MR. SHAPIRO:
13 Q. Mr. Thomas, I want to finish our discussion
14 about what has been marked as Defendant’s Exhibit
15 896. If you could turn to the second page of that
16 public announcement.
18 Q. Could you read the second paragraph, please.
19 A. "The preliminary 18-month reconnaissance
20 phase of this study is funded by the federal
21 government. The Harris County Flood Control District
22 is the local sponsor for the activities, and has
23 agreed to participate in design and construction if
24 favorable project modifications are indicated.
25 Public meetings will be scheduled in the West Houston

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1 project area as the reconnaissance study progresses,

2 to assure public preferences are included and
3 considered."
4 Q. And in the third paragraph, would you read
5 that last sentence, please?
6 A. "There is a potential that flooding from rare
7 events could occur upstream from the reservoir lands
8 as a result."
9 Q. And as a result of?
10 A. Of prolonged impoundments upstream.
11 Q. Thank you.
12 I want to turn now to the last page of
13 this document, which is the one ending in Bates
14 number 095.
16 Q. What is this?
17 MR. EASTERBY: Your Honor, I understood only
18 the first two pages of DX896 have been admitted.
19 THE COURT: That's true.
20 MR. SHAPIRO: I concur.
21 Q. What is on this page, sir?
22 A. This is a request from Cary R. Gilbert to be
23 placed on a mailing list for future meeting
24 announcements.
25 Q. And can you tell what, without reading the

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1 document, or reading from the words on the document,

2 could you tell what it is in reference to?
3 MR. EASTERBY: Your Honor, my objection is
4 we've gone through this probably too many times. 896
5 is the first two pages, that's it.
7 MR. SHAPIRO: I disagree, your Honor. I'm
8 attempting to move on to this page, your Honor.
9 THE COURT: Oh, all right.
10 THE WITNESS: It's in reference to the -- the
11 efforts that led to the 1995 Reconnaissance Report.
12 Q. BY MR. SHAPIRO: What's the date of this
13 document?
14 A. July 7, 1994.
15 Q. So where was this sent?
16 A. The Galveston District Corps of Engineers,
17 Planning Division.
18 MR. SHAPIRO: I move the admission of this
19 page of the document.
20 MR. EASTERBY: Judge, I renew the objections
21 for the same reasons as before. It was the first two
22 pages, and now he's trying to get in the fourth page.
23 I don't believe I need to restate all the objections
24 I made at such length, so I would just ask that this
25 last page be excluded.

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1 THE COURT: I don't see the relevance of the

2 last page.
3 MR. SHAPIRO: It is the same relevance as the
4 first page, your Honor. It shows that the public
5 announcement was actually transmitted to the public,
6 which is an issue Plaintiffs apparently have not
7 believed may not have occurred. It just proves that
8 it did occur and that it was a public announcement.
9 THE COURT: The first page does that.
10 MR. SHAPIRO: Yes, your Honor.
11 THE COURT: Why do we need the fourth page?
12 MR. SHAPIRO: Well, it shows not only did it
13 go to Harris County, which is the first page, but it
14 went to other individuals as well. It was publicly
15 announced at that time. That's what it proves.
16 MR. EASTERBY: Your Honor, I renew the
17 objection. Counsel testifying like that I think is
18 improper, so we would ask again, as per, I thought,
19 the stipulation we reached, and maybe that was the
20 prior one, but DX896 comprises the first two pages,
21 and that's it.
22 MR. SHAPIRO: We can call this the next in
23 line, your Honor. But it's not -- I'm not exactly
24 sure what the objection is, but the hearsay
25 objection, we're not offering it for the proof of

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1 whether this individual actually requested this or

2 for the truth of the matter asserted, it's just for
3 the notice of the public announcement.
4 THE COURT: We have that established by the
5 first page and the second page. My inclination is
6 not to admit it, because we actually have no idea who
7 the author is and who the entity is, it is just a
8 public notice.
9 MR. SHAPIRO: We established that it was made
10 publicly available.
11 THE COURT: Yes.
12 MR. SHAPIRO: Because if I can make a
13 proffer, your Honor.
14 THE COURT: Yes.
15 MR. SHAPIRO: This is one of several letters
16 like this that prove beyond a shadow of a doubt that
17 it was made publicly available.
18 MR. EASTERBY: Objection.
19 Come on, Judge, that's argument. He's
20 making an argument in the middle of his examination
21 of a witness who is on the stand.
22 THE COURT: This is of such minimal
23 relevance. Nonetheless, the Court will admit the
24 fourth page as well as the first and second page, so
25 I will amend the prior order in this respect.

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1 MR. EASTERBY: Understood, Judge.

2 (Defendant’s Exhibit 896, page 4, was
4 MR. SHAPIRO: Thank you, your Honor. And
5 just so the record is complete, I would like to get
6 in a few of the other letters that indicate that it
7 was made publicly available.
8 THE COURT: That's cumulative. The Court
9 will not allow that.
11 THE COURT: This record is going to be
12 complicated enough.
13 MR. SHAPIRO: Just for the record, I'm going
14 to make a proffer as to what the exhibit number is.
15 THE COURT: Which?
16 MR. SHAPIRO: That I would have offered.
17 THE COURT: I thought we were talking about
18 DX896, pages 1, 2 and 4.
19 MR. SHAPIRO: Yes, your Honor, but there is
20 another exhibit that has additional indicia that the
21 notice was made public. I understand the Court's
22 ruling, I'm not trying to challenge the Court, I just
23 wanted to make a proffer as to what that exhibit
24 would be.

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1 MR. EASTERBY: Respectfully, I suggest that

2 if counsel wants to make a proffer or offer of proof,
3 the time to do that is not when the witness is on the
4 stand, but after he's done.
5 THE COURT: Well, but this is irrelevant to
6 Mr. Thomas' testimony as the Court understands it.
7 So you don't have a prejudicial aspect
8 to the proffer at this point. The Court will take
9 the proffer now.
11 I would have offered JX50 at pages 083,
12 084, 090, 091, as evidence of similar letters showing
13 that the notice that we've looked at, and the public
14 announcement was in fact distributed to the public.
15 THE COURT: And you might even get a
16 stipulation as to that. We're talking about the
17 public announcement that under page 2 of DX896 was
18 actually issued on 29 June 1994; is that correct?
20 THE COURT: Can we stipulate to that to avoid
21 the proffer, Mr. Easterby?
22 MR. EASTERBY: I'm sorry, your Honor?
23 THE COURT: Not to the admissibility of these
24 additional pages of JX50, but just that the
25 announcement was actually made.

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1 MR. EASTERBY: Which announcement?

2 THE COURT: The one that is the second page
3 of DX896.
4 MR. EASTERBY: Your Honor, that's acceptable.
5 THE COURT: Thank you. Done.
6 Does that eliminate the proffer,
7 Mr. Shapiro?
8 MR. SHAPIRO: I'd still like the proffer to
9 be there. I understand the Court's ruling, but I
10 appreciate that, your Honor.
12 Q. BY MR. SHAPIRO: Okay. We're going to move
13 on to an exhibit that should already be in evidence.
14 JX52. This is the Reconnaissance Report.
16 Q. And this document is already in evidence, so
17 if you could turn, please, to the second page of this
18 document ending 109.
20 Q. In the first paragraph, what information does
21 that relay? I think you can just paraphrase.
22 A. So it's talking about the number of copies
23 that are submitted. It's indicating where they might
24 go, and it's notifying headquarters of the intent to
25 publish a public notice.

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1 Q. Was it typical when documents like the

2 Reconnaissance Report were prepared for the Corps to
3 make this type of document available to the public?
4 A. Yes, sir.
5 Q. I want to turn to page 109.
6 Excuse me, 136.
8 Q. And the bottom of that paragraph before
9 "Planned Scope of Work," if you could read the last
10 two sentences, please. The impoundment.
11 A. "The impoundments were the highest levels
12 reported and the rainfall was roughly estimated to
13 have a recurrence frequency of about once in 30 to 40
14 years. The recent events indicate a potential for
15 future flooding problems."
16 Q. Do you have an understanding of what that is
17 referring to in terms of recent events?
18 A. The 1992 pool of record.
19 Q. Could you turn, please, to page 137 under
20 "Actual Scope of Work Performed." Does it provide
21 there a frequency statistic for when water may leave
22 the government-owned land at Addicks and Barker?
23 A. It does.
24 Q. What does it state?
25 A. For Addicks it states once, a frequency of

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1 about once in 250 years, and for Barker it states a

2 frequency of about once in 70 years.
3 Q. If water goes off the government-owned land,
4 does that necessarily mean that it's inundating homes
5 upstream?
6 A. No, sir.
7 Q. Are the homes -- well, explain why that is,
8 please.
9 A. The homes -- the first floor elevation of the
10 homes were above the elevation of the
12 Q. Turn, please, to the page ending 15 -- excuse
13 me, 151.
15 Q. And can you just identify what portion of the
16 Reconnaissance Report this is, please.
17 A. So this is labeled as an information and
18 status report on the Addicks and Barker reservoirs,
19 29 October 1993.
20 Q. You indicated earlier that it was your
21 understanding that the 1992 special report, which we
22 looked at in some length with Mr. Easterby, that was
23 attached to the 1995 Reconnaissance Report?
24 A. Yes, sir.
25 Q. And if you turn, please, to the page ending

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1 159?
3 Q. What is this?
4 A. This is the first page of the special report
5 on flooding dated May 1992.
6 Q. And are the remainder of the pages of the
7 1992 report included on the document that was
8 publicly released?
9 A. They are.
10 Q. Mr. Easterby asked you whether the
11 government-owned land at Barker extends to the
12 hundred-year flood elevation.
13 Do you recall those questions?
14 A. Yes, sir.
15 Q. And I looked at the transcript. I believe
16 you answered that it depends on the analysis.
18 A. Yes, sir.
19 Q. What did you mean by that?
20 A. I meant it depends specifically on which
21 documented analysis that you're looking at. Some of
22 them say 100, and some of them say less than 100.
23 Q. Does estimating a 100-year flood elevation
24 require some exercise of engineering judgment?
25 A. Yes, sir.

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1 Q. Does it depend on whatever information might

2 then be available?
3 A. It does.
4 Q. As new information comes in, might it change?
5 A. It does.
6 Q. You mentioned sometime when you were
7 testifying a BB & T study, if I heard you correctly.
8 A study about the Barker government-owned land.
9 Maybe it's an ongoing study?
10 A. Oh, the current resiliency study.
11 Q. Has that study been completed?
12 A. It has not been completed.
13 Q. When we were looking at the Reconnaissance
14 Report, or when you were looking at it with
15 Mr. Easterby, one of the options that was available
16 was flood warning and evacuation plans.
17 Do you recall that testimony?
18 A. Yes, sir.
19 Q. And I believe you stated that those types of
20 plans are deferred to locals; is that correct?
21 A. I think so.
22 Q. What did you mean by that?
23 A. I mean that the state and local governments
24 have the authority for evacuations for those
25 projects.

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1 Q. You mentioned that there's an ongoing section

2 216 study right now.
3 A. Yes, sir.
4 Q. And are public meetings -- have public
5 meetings been held about that study?
6 A. They have.
7 Q. And will -- do you know if additional public
8 meetings will be held?
9 A. They will be.
10 Q. And you said earlier that it is also
11 considering a no-action alternative.
12 A. It is.
13 Q. And why is that?
14 A. It's required as part of our NEPA process and
15 part of good engineering.
16 Q. If the Corps had adopted plan 1, which was
17 the degrading of the ends of the reservoirs -- or
18 excuse me, the ends of the dams, when that plan was
19 considered decades ago, what impact would that have
20 had on the amount of water going downstream during
21 Hurricane Harvey?
22 MR. EASTERBY: Objection, your Honor,
23 incomplete hypothetical and he has not been proffered
24 as an expert to answer that kind of a question.

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1 THE WITNESS: So I don't remember the exact

2 numbers or the exact elevations, but had we lowered
3 the ends of the dams, more water would have flown
4 around or had greater discharge into lower Buffalo
5 Bayou watershed.
6 Q. And would that have caused additional
7 flooding downstream, on properties downstream of the
8 dams?
9 A. It would have.
10 Q. What if the Corps had just, during Hurricane
11 Harvey, just never closed the gates? What impact
12 would that have had on downstream properties during
14 MR. EASTERBY: Same objection, your Honor. I
15 mean if he's quantified the differences in the pool
16 elevations associated with that change in operations,
17 we have seen nothing on that in the discovery in this
18 case from this witness or from the Corps of
19 Engineers.
21 MR. SHAPIRO: Well, I believe this is within
22 Mr. Thomas' bailiwick. This is something he deals
23 with every day. I'm not asking for a specific
24 number; I'm just asking.
25 THE COURT: In other words, you're suggesting

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1 that Mr. Thomas is qualified to answer on a

2 qualitative basis, not a quantitative basis?
3 MR. SHAPIRO: Exactly.
4 THE COURT: We'll find out.
5 You may answer.
6 Q. BY MR. SHAPIRO: If the Corps during
7 Hurricane Harvey -- if the Corps left the gates open
8 and never closed them, what impact would that have
9 had on downstream properties?
10 A. So had we had the gates opened the entire
11 time, we would have had an earlier peak and a
12 discharge coinciding probably with higher discharges
13 downstream, so it could have led to increased
14 flooding downstream.
15 Q. What if the Corps had just at that moment
16 somehow removed the dam, blown it up? What impact
17 would that have had on downstream properties?
18 A. It would have been very damaging downstream,
19 and that's in reference to the flood damages
20 preventive analysis where we simulate something like
21 that, and it had many billions of dollars in damage.
22 Q. At that moment when Hurricane Harvey hit, did
23 the Corps have any other options if it wanted to do
24 everything it possibly could think of to minimize
25 flooding on the upstream properties?

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1 A. You mean other than -- no, sir.

2 Q. You were asked a couple questions about three
3 pages of a large document that is admitted as JX94.
5 Q. Do you recall that testimony?
6 A. Yes, sir.
7 Q. If you look at the next document, JX95, I
8 think it's the same document, but just a better copy,
9 and I would like to use that in some of this
10 questioning, if that's okay with your Honor. It is
11 the same document, just the pictures are better
12 quality.
13 MR. EASTERBY: Which Exhibit is he talking
14 about?
15 MR. SHAPIRO: 95.
16 MR. EASTERBY: JX.
17 THE COURT: We have JX94 admitted.
18 MR. SHAPIRO: This came to my attention after
19 the questioning had been going on. I apologize.
20 THE COURT: Let's just take it as a surrogate
21 for JX94.
22 MR. EASTERBY: Assuming they are identical,
23 your Honor, I don't know that they are, but if
24 counsel is representing that, that's good enough for
25 me.

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1 MR. SHAPIRO: My understanding is they are.

2 I think we can hopefully work out the details.
3 Q. You were asked to read off some definitional
4 terms on a brochure on one page of this document.
5 Do you recall that testimony?
6 A. Yes, sir.
7 Q. And then you were asked whether that said
8 anything about water that might go on to
9 neighborhoods upstream of the dams.
11 A. Yes, sir.
12 Q. And I just want to talk about some of the
13 other pages in this lengthy document.
14 If you turn, please, to the page ending
15 216.
17 Q. What does this appear to be?
18 A. A news release related to the Addicks and
19 Barker project.
20 Q. And if you look at the second to the last
21 paragraph, what does it state there about the
22 possibility of public meetings?
23 A. It says the public meetings will also address
24 flooding issues upstream of Addicks and Barker.
25 Q. Okay. And if we now turn to the page ending

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1 147.
3 Q. What is this labeled as?
4 A. Addicks and Barker Dam Safety Overview.
5 Q. And who -- it's -- the name Colonel Weston is
6 on there, Commander. Do you know who that is?
7 A. He was the district commander at the time.
8 Q. And this is a PowerPoint presentation. Can
9 you please turn to the page ending 162?
11 Q. This is one of the slides in that PowerPoint
12 flood presentation; is that correct?
13 A. It is.
14 Q. And what does it state here about additional
15 flood risks?
16 A. It talks about exceeding the reservoir
17 capacity due to the large or extreme storms or series
18 of storms, and then it talks about the excess
19 reservoir pool, either related to the auxiliary
20 spillways or the areas adjacent to the reservoirs.
21 Q. And do you have an understanding what that
22 means, areas adjacent to the reservoir?
23 A. It's shown on the very next slide actually.
24 It is the areas upstream of the government-owned
25 land.

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1 Q. Let's look at that slide ending in 163. What

2 is depicted there in this document that was shown in
3 the public meeting?
4 A. So this is the Addicks Reservoir, and the
5 black line indicating the government-owned land, and
6 it's got a yellow line showing the extent of the
7 100-year level, it's got a green polygon for the
8 Tropical Storm Allison. It's got a pink line labeled
9 flood control, which appears to be estimated as a 1
10 in 1200-year return period, and then it's got an
11 orange outline for the probable maximum flood, noted
12 as about three times Tropical Storm Allison.
13 Q. Do some of those storms -- do some of those
14 storms you just identified -- do some of those colors
15 for the storms you just identified go beyond
16 government-owned land?
17 A. Yes, sir.
18 Q. If you turn to the next page, 164.
20 Q. What's that?
21 A. So this is Barker Reservoir. It's a similar
22 figure. It's got a black line showing the limits of
23 the government-owned land. The yellow line showing
24 the 100-year return period. The green polygon for
25 Tropical Storm Allison, a pink polygon labeled as

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1 flood control, estimated at 1 in 6,000 years, and

2 then an orange polygon representing the probable
3 maximum flood within an approximate three times
4 Tropical Storm Allison.
5 Q. And some of those pools that are colored,
6 according to what you just described, exceed
7 government-owned lands and go into private properties
8 upstream of the reservoirs?
9 A. Yes, sir.
10 Q. Okay. You were asked about a surveying
11 effort that took place in 2003, and we don't need you
12 to look at it, but it's PX61.
14 A. Yes, sir.
15 Q. And the document you were shown referred to a
16 surveying effort related to the 25-year storm event.
17 A. It did say that.
18 Q. And then you were shown some graphics. We
19 can look at one of those just on the screen. It's
20 PX2289, if we have that. Or I can just hold it up.
21 I think we got this in paper form.
22 This is PP -- excuse me -- PX2289.
23 If I may approach, your Honor?
24 THE COURT: Yes.
25 Q. BY MR. SHAPIRO: Does the red colored areas

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1 on that exhibit appear to relate to what you would

2 characterize as a 25-year storm for that reservoir?
3 A. No, sir.
4 Q. And why do you say that?
5 A. Because their location this far upstream in
6 some cases, you could compare it to the figures that
7 we just looked at for some estimates of return
8 period.
9 Q. And I just want to show you PX2290 and
10 PX2292.
12 Q. And same question for those. Do those appear
13 to depict a 25-year storm at Addicks or Barker?
14 A. No, sir.
15 Q. And why do you say that?
16 A. For the same reason. The locations are far
17 upstream and beyond where the 25-year pool level has
18 been indicated.
19 Q. You were asked several questions yesterday
20 about whether the Corps has ever considered buying
21 all the land up to the elevation that would be
22 created by the standard design flood or spillway
23 design flood pool.
24 Do you recall those?
25 A. Yes, sir.

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1 Q. And why has the Corps not done that?

2 A. So far, we haven't either been authorized or
3 appropriated to do it, and we haven't completed a
4 study that met the requirements to recommend doing
5 that.
6 Q. Does it have anything at all to do with the
7 probability of such a storm?
8 A. So especially in the '95 Recon Report, where
9 we really had this question come up, the economics
10 didn't justify that because the likelihood of
11 flooding at those levels was so low that the risk
12 ends up being a very small number, and it doesn't
13 exceed cost because of the infrequency of the storms
14 that caused those pool levels.
15 Q. And are you familiar with the -- the
16 probability or frequency return interval of the
17 spillway design flood storm?
18 A. Yes, sir.
19 Q. And if we could look, please, at DX255.
21 Q. Mr. Thomas, do you recognize this document?
22 A. It is the dam safety modification report. It
23 looks like these are the engineering appendices.
24 Q. And what is the date of this document?
25 A. May 2013.

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1 Q. Who prepared it?

2 A. U.S. Army Corps of Engineers.
3 Q. Is there information -- what kind of
4 information, just in general terms, is included in
5 this?
6 A. In this engineering appendix there will be
7 all kinds of information about engineering design,
8 engineering analysis. There is an H&H analysis. All
9 kinds of engineering information.
10 Q. Is this a document that is kept in the normal
11 course of business by the Corps?
12 A. Yes, sir.
13 MR. SHAPIRO: I move the admission of DX255.
14 MR. EASTERBY: No objection, your Honor.
15 THE COURT: Give me a minute.
16 Q. BY MR. SHAPIRO: Turn please --
19 evidence.)
20 Q. BY MR. SHAPIRO: If you turn please to page
21 ending 070.
23 Q. Does that include information that -- about
24 the probable maximum flood occurrence at Addicks?
25 A. It does.

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1 Q. And what does it say?

2 A. It says the adopted -- adopted probable
3 maximum flood probability was determined to be 5.6
4 times 10 to the minus 6 at elevation 115.
5 Q. What does that mean?
6 A. That means the likelihood of occurrence is
7 essentially 5.6 in a million.
8 Q. And so what does that -- is it possible to
9 translate that into something akin to a hundred-year
10 storm or a 200-year storm?
11 A. You can, so you would just divide that
12 number -- divide one by that number. I don't think
13 my little calculator will do it, but I think it's
14 somewhere in the 150 to 100,000 to 200,000 year
15 period or range.
16 Q. If I told you it was about 178,000, does that
17 sound about right?
18 A. Sounds about right.
19 Q. If you turn to page 074?
21 Q. And before we move past that, at that point,
22 what would that mean? Suppose it is a 1 in 178,000
23 year storm, what would that mean?
24 A. Really it just means that it's very unlikely.
25 When you get to that big of a number, it's hard to

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1 say, you know, does that mean it's going to happen

2 this year or next year. Essentially that means it's
3 our theoretical maximum limit for a flood, meaning
4 it's the worst thing that can happen, and not likely.
5 Q. If you turn to page 074, does it include
6 similar information about the likely return of the
7 PMF, or return interval PMF at Barker?
8 A. It does.
9 Q. And what does it say about that?
10 A. It says for Barker it was determined to be a
11 7.4 times 10 to the minus 6 at elevation 108.
12 Q. And again, what would -- how would that sort
13 of translate into a type of storm?
14 A. The same way as the Addicks storm. The very
15 infrequent storm at the theoretical upper limit.
16 Q. And if I told you it was a 1 in 135,000-year
17 storm, would that sound about right?
18 A. Sounds about right.
19 Q. During the site visit the Court had the
20 opportunity to see the outlet structures on the dams,
21 both the existing ones and the ones that are under
22 construction. Just so we have a record on this, when
23 is that construction expected to be completed?
24 A. Next year.
25 Q. And was that construction ongoing during

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1 Hurricane Harvey?
2 A. It was.
3 Q. Once that is completed, will that work change
4 the possibility of flooding on upstream properties?
5 A. It will not.
6 Q. Once it's changed, will that work change the
7 possibility of flooding on downstream properties?
8 A. It will not.
9 Q. Will it -- would that work change the SPF or
10 SDF calculations?
11 A. I should clarify.
12 It will not change the risk of -- it
13 won't change the way that they operate, but it will
14 reduce the risk of dam failure.
15 Q. Okay. Will it change the SPF or SDF
16 calculations?
17 A. It will not.
18 Q. We're going to turn to Hurricane Harvey in a
19 minute here, but I want to talk just briefly about
20 the 2016 Tax Day flood.
21 Are you familiar with that storm?
22 A. Yes, sir.
23 Q. If you would turn, please, to JX128.
25 Q. Do you recognize what this document is?

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1 A. Yes, sir.
2 Q. What is this?
3 A. This is a new pool of record report after the
4 Tax Day flood.
5 Q. How are you familiar with it?
6 A. I've read it.
7 Q. And do you recognize the name on the front?
8 A. Yes, sir.
9 Q. The report that is attached, if you turn to
10 the second page, do you recognize the author of the
11 report?
12 A. Yes, sir.
13 Q. What's the date of this document on the first
14 page?
15 A. 13 May 2016, on the first page.
16 MR. SHAPIRO: I move the admission of JX128.
17 MR. EASTERBY: No objection, your Honor.
20 evidence.)
21 Q. BY MR. SHAPIRO: What kind of information,
22 just in general, is included in this report?
23 A. Generally it talks about the structural
24 components of the project and how they perform and
25 makes recommendations for repairs or improvements.

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1 Q. And does it state -- if you go to that page

2 ending 227?
4 Q. What does it say -- excuse me.
5 In the first paragraph, does it indicate
6 how high the peak pool reached during the 2016 Tax
7 Day storm?
8 A. It does.
9 Q. And what were those peak pools?
10 A. For Addicks it was 102.65 feet. For Barker,
11 it was 95.2 feet.
12 Q. And how did those peak pool elevations
13 compare to the elevation of the government-owned
14 land?
15 A. So at Addicks it's about 3-10ths of a foot
16 below, and Barker is about 2-10ths of a foot above.
17 Q. Did those pools that were dropped by the 2016
18 Tax Day storm, did those pools extend far enough to
19 -- upstream of the reservoir to inundate any
20 structures?
21 A. I don't believe they inundated any homes or
22 property, or any structures.
23 Q. And I want to look briefly at JX134.

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1 A. This is the fiscal year 2016 Annual Water

2 Control Reports.
3 Q. And does this also include a summary of the
4 2016 Tax Day storm?
5 A. Yes, sir.
6 Q. Who prepared this document?
7 A. This is a division document, so it's prepared
8 by our division office and the Galveston District
9 provides input for our projects.
10 Q. And are you familiar with this document?
11 A. Yes, sir.
12 MR. SHAPIRO: I move the admission of JX134.
13 MR. EASTERBY: No objection.
14 THE COURT: It's admitted.
16 evidence.)
17 Q. BY MR. SHAPIRO: Let's talk now about the
18 Corps' operations during Hurricane Harvey. Did the
19 Corps declare an emergency during that storm?
20 A. Yes, sir.
21 Q. And describe what that means, please?
22 A. Essentially that's the process for standing
23 up our Emergency Operations Center and notifying our
24 headquarters, et cetera, so we can start to prepare
25 for emergency management activities.

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1 Q. Who declared the emergency?

2 A. Colonel Zetterstrom.
3 Q. If you could turn, please, to JX110. This is
4 the water control manual.
6 Q. When you talked about this document with
7 Mr. Easterby, you were asked -- well, let me back up.
8 I think you were shown the Emergency
9 Action Plan by Mr. Easterby, which is JX118. As I
10 recall, you were asked whether the Corps had ever
11 declared an emergency level 1 or emergency level 2 or
12 emergency level 3.
13 Do you remember those questions?
14 A. Yes, sir.
15 Q. And what you stated was that, no, the Corps
16 did not, because we had already declared an emergency
17 before this; is that correct?
18 MR. EASTERBY: Objection; leading.
19 MR. SHAPIRO: I'm just trying to orient us
20 here.
21 THE COURT: All right. The Court will allow
22 the question even though it is leading.
23 Q. BY MR. SHAPIRO: Do you remember that?
24 A. Yes, sir.
25 Q. Okay. So did the Corps announce an emergency

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1 level 1 or 2 or 3?
2 A. There was no kind of formal declaration that
3 said that.
4 Q. Okay. And when you said -- when you
5 testified before that "we had already declared an
6 emergency," what did you mean by that?
7 A. So declaring the emergency essentially stands
8 up our Emergency Operations Center, so we had done
9 that, and so there was -- there wasn't a need to make
10 another formal declaration of an emergency.
11 Q. But did you follow the Emergency Action Plan?
12 A. We did.
13 Q. Okay. Now we're going to turn to the water
14 control manual, JX110, which should be in front of
15 you?
17 Q. Is this a public document?
18 A. It is.
19 Q. And how can the public access it today?
20 A. The internet at the website
21 water.usace.army.gov.
22 Q. Is this water control manual still in effect?
23 A. It is.
24 Q. And was it in effect during Hurricane Harvey?
25 A. Yes, sir.

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1 Q. Did the Corps comply with this water control

2 manual during Hurricane Harvey?
3 A. Yes.
4 Q. There was a discussion yesterday about -- a
5 portion of this document that talks about balancing
6 the pools between the two reservoirs.
8 A. Yes, sir.
9 Q. And can you explain what that means?
10 A. Essentially while we're trying to drain the
11 reservoirs, we want to try to maintain a similar
12 amount of storage in each one, so that we don't
13 increase the risk by perhaps leaving one full and
14 draining the other one. We want a similar amount of
15 risk in each reservoir.
16 So as we're making releases, both are
17 controlled by the same downstream control point, so
18 we just balance the amount of water that we release
19 to keep them at about the same amount of storage
20 within about 20 percent of each other.
21 Q. And did you follow those guidelines during
23 A. Yes, sir. They really applied during the
24 drawdown plan. They were part of that.
25 Q. That may not be clear. Did they apply or did

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1 they not apply?

2 A. They do apply but not during surcharge
3 releases.
4 Q. So let's talk about the surcharge releases
5 just briefly. If you turn to the page ending 339?
7 Q. And can you explain to the Court how the
8 induced surcharge regulations work?
9 A. Essentially we're watching the pool levels
10 and we're measuring them off those gauges that we
11 talked about Monday or Tuesday, and once we reach
12 these elevations, which are 101 feet on Addicks, and
13 94.9 feet on Barker, then we start to make releases
14 in accordance with the plates 7-03 and 7-04, which
15 are some curves that tell us what gate settings to
16 make, dependent on the rate of pool rise.
17 Q. And so why don't we just look at one of those
18 curves. I think if you turn back to the page ending
19 435.
21 Q. Excuse me. 436.
23 Q. It should be way in the back. As it's being
24 looked at, you have it in front of you. Just give me
25 a second.

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1 MR. SHAPIRO: I'm sorry, your Honor. If we

2 could have just a minute.
3 (Counsel confer off the record.)
4 Q. BY MR. SHAPIRO: Okay. Close.
5 Okay. We've got the graphic on the
6 screen now.
7 A. Would it be possible to rotate it?
8 All right. Okay.
9 Q. I'm sorry, because we had a break, we're
10 looking at the page ending 436. Can you explain what
11 we're seeing?
12 A. Okay. So the vertical axis on the left side
13 of the graph is the pool elevation in feet relative
14 to NAVD. The horizontal axis is discharged in cubic
15 feet per second. That's the bottom horizontal axis.
16 THE COURT: Which dam is this, please?
17 THE WITNESS: This is Barker dam, sir.
18 The top horizontal axis is
19 showing -- it's got the labels for each of these
20 black lines that are kind of vertical or tilted a
21 little bit, and what those show is five conduits
22 operating with the gate open. So what that means is
23 that this first line that says .5, that means that
24 you would open all five conduits a half a foot. This
25 one that says four, you would open all four

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1 conduits -- all five conduits four feet. And

2 essentially these slashed lines are what's telling
3 you how much opening to make.
4 The kind of curved horizontal lines are
5 indicating the rate of rise, so the way that you
6 would use this is you would read up whatever pool
7 levels you're at, and then you read across to
8 whatever rate of rise you're at, or if you're above
9 the rate of that rise, let's say you go all the way
10 over to the number 7 opening, and that's how much
11 gates -- that's the gate setting you would make, so
12 I'll give you an example here.
13 If you were at 100 feet pool elevation,
14 and the rate of rise was 1.5, and you would see that
15 you're a little less than a half a gate foot for all
16 of the conduits. If your rate of rise was .3 at 100
17 feet, you would go all the way over until you got to
18 the .3 line, so you never get there, so you stop
19 right here at the 7 gate feet.
20 Q. When you're measuring rate of rise, how is
21 that done?
22 A. It's a comparison of the pool level over the
23 last hour.
24 Q. Okay. And where does the Corps get that
25 information?

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1 A. From the USGS gauges located at the outlet

2 works that we looked at last time.
3 MR. SHAPIRO: And your Honor, I think
4 Mr. Ciliske pointed one of those out to us.
5 THE COURT: He did.
6 Q. BY MR. SHAPIRO: Is this the graph that the
7 Corps was -- well, were you involved in sort of
8 assessing how to respond to the flood pools during
9 Hurricane Harvey?
10 A. Yes, sir.
11 Q. And where were you at the time?
12 A. At the dams, near the Barker dam at the
13 Addicks project office, and then where we relocated
14 to after that flooded.
15 Q. And were you -- were you looking at this
16 graph in order to determine how to operate Barker?
17 A. Yes, sir.
18 Q. And did you use this graph in order to
19 determine what gates and how many gates to open?
20 A. Yes, sir.
21 Q. And did you follow the procedure set forth in
22 the water control manual in regard to induced
23 surcharge operations?
24 A. Yes.
25 Q. Is there a similar -- I think there is a

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1 similar graphic for the Addicks on the page

2 proceeding, ending 435?
4 Yes, sir.
5 Q. And is the process to determine the amount of
6 the induced surcharge releases for Addicks similar to
7 what you described for Barker?
8 A. Yes, sir.
9 Q. What is the purpose of the induced surcharge
10 operation?
11 A. The purpose is to optimize the use of the
12 available storage and to protect the integrity of the
13 dams.
14 Q. Yesterday, again, when you were discussing
15 PX25, which was the new pool of record document dated
16 October 27th, 2017, you testified that during the
17 storm there was a concern about dam failure.
19 A. Yes, sir.
20 Q. Why do you say that? Why do you say that?
21 A. So these are the highest risk dams in the
22 Corps of Engineers' inventory, and we had previously
23 done a risk assessment which led us to replace the
24 outlet works, so there is risk associated with
25 running the outlet works, and there is risk

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1 associated with the embankments on some locations,

2 and there is risks associated with using emergency
3 spillways, and we were going into a new pool of
4 record. So there was a lot of risk.
5 Q. When you say -- did I hear you right? You
6 said it was the highest risk dam?
7 A. These are. These are the highest risk dams
8 in the Corps of Engineers' inventory in the United
9 States.
10 Q. I want to show you DX649.
12 Q. Do you recognize this document?
13 A. Yes, sir.
14 Q. What is this?
15 A. This is a timeline that we put together after
16 the storm, maybe in the first year after the
17 hurricane, where we kind of tried to note down some
18 things and when they occurred, just to kind of have a
19 timeline of when things happened.
20 Q. You used the subject "we." Were you involved
21 in the process of preparing this document?
22 A. Yes, sir.
23 Q. And are you familiar with it?
24 A. Yes, sir.
25 MR. SHAPIRO: I move the admission of DX649.

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1 MR. EASTERBY: No objection.

4 evidence.)
5 Q. BY MR. SHAPIRO: I want you to, if you could,
6 just look at the first page of this document and I
7 just want to sort of walk through the -- a few of the
8 major incidents that occurred.
9 On the first page, when did the Corps
10 close the gates at the outlet structure?
11 A. August 25th, 2017, at 2100.
12 Q. And why did the Corps do that?
13 A. To reduce flooding downstream,
14 flooding -- the predictions had reached a point, the
15 rainfall had reached a point where we needed to close
16 the gates.
17 Q. And when it had reached a point, what do you
18 mean? What point had it reached?
19 A. So it had reached a point where we couldn't
20 prevent Piney Point -- the gauging station at Piney
21 Point from exceeding the 2000 CFS limit, so we closed
22 ahead of that so that we wouldn't cause additional
23 flooding downstream.
24 Q. Where is Piney Point?
25 A. It's 8 or 10 miles downstream of the outlets.

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1 Q. And why is that important? Or is that

2 important for regulating these reservoirs?
3 A. It is the downstream control point, so during
4 our normal operations, our goal there is to limit
5 releases so it never exceeds 2000 CFS.
6 Q. And the decision to close the gate, was that
7 consistent with the water control manual?
8 A. Yes, sir.
9 Q. At some point during the storm, we talked
10 about making induced surcharge releases. But before
11 that, were the pools -- was rain falling and inflows
12 coming into the reservoirs?
13 A. It was.
14 Q. And was that causing the flood pools behind
15 the dams to grow?
16 A. Yes, sir. So after we closed the gates, they
17 started to rise at that point.
18 Q. And at what point did you -- did the Corps
19 decide to initiate the surcharge release operations?
20 A. That's on the next page. It was the very
21 early morning around midnight on the 28th of August,
22 2017.
23 Q. And what are you seeing on that page?
24 A. Where it says starting immediately. The
25 date's actually wrong. It says 8-28, 2336, but we

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1 started that morning about midnight 15.

2 Q. Okay. So midnight on what day?
3 A. On the 28th.
4 Q. Thank you.
5 And did you initiate the surcharge
6 operations at the same time for both the reservoirs?
7 A. Approximately.
8 Q. After you initiated the -- I'm using you, I
9 mean the Corps. After the Corps initiated surcharge
10 operations, was water then leaving the reservoirs and
11 going downstream?
12 A. It was.
13 Q. And did the pools -- what happened to the
14 pools at that point? Did they start to reduce?
15 A. No, sir, they continued to rise.
16 Q. Why is that?
17 A. Because the inflows from the storm were still
18 at that point greatly exceeding the outflows from the
19 outlets.
20 Q. Okay. And then when did the pools -- when
21 did the reservoirs reach peak pool?
22 A. So I'll go over to the fifth page of that.
23 It says at 4:15 in the morning of August 30th for
24 Barker, and 7:00 a.m. on the morning of August 30th
25 for Addicks.

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1 Q. And you're looking at the fifth page?

2 A. Yes, sir.
3 Q. Thank you.
4 Okay. And then after the peak pools
5 were reached, what happened next?
6 A. So the next thing, the next big thing was we
7 started to reduce the amount that we were releasing
8 as the pools started to fall.
9 Q. Is that sometimes called a drawdown
10 procedure?
11 A. That is what we call it.
12 Q. And can you explain that?
13 A. So essentially in the water control manual,
14 it just says once you reach this elevation, you just
15 close the gates back to their normal settings.
16 But what we found was that really that
17 wasn't -- it wasn't comprehensive enough. We needed
18 to have a staged drawdown so that we wouldn't have a
19 risk of having a rapid drawdown failure, so that's
20 where if the water were to come off the toe very
21 quickly, that soil will just fall as it gets too much
22 water. So we basically put a plan that it would
23 reduce -- reduce the amount of releases over time, so
24 it didn't have the rapid drawdown failure on the dam,
25 or on the downstream infrastructure as well.

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1 Q. And is that discussed in the water control

2 manual to attempt to minimize damage to the
3 downstream channel?
4 A. Yes, sir.
5 Q. And do you still have the water control
6 manual in front of you? Perhaps I can just give you
7 my copy.
8 I think that's the page of the water
9 control manual ending in Bates 342. What does it say
10 about rapid changes of rate of release?
11 A. It says, "Change in release rates will be
12 accomplished in a manner which minimizes damage to
13 the downstream channel. Every reasonable precaution
14 will be made to prevent, if possible, bank sloughing,
15 undercutting, excessive erosion, and danger to human
16 and animal lives."
17 Q. So what was the peak pool reached at Addicks
18 during Hurricane Harvey?
19 A. So I don't have it written it down. It was
20 109.1, I believe.
21 Q. And had the pool ever reached that high
22 before?
23 A. It had not.
24 Q. What was the previous peak?
25 A. It was 102.65 I think.

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1 Q. And when did that occur?

2 A. Tax Day flood.
3 Q. In 2016?
4 A. Yes, sir.
5 Q. And so in terms of volume, how does the
6 Hurricane Harvey volume of the peak pool compare with
7 the 2016 storm?
8 A. It's about double.
9 Q. And what about at Barker? Do you recall the
10 peak elevation at Barker?
11 A. It was 101.59 or '6.
12 Q. And had the pool ever reached that high at
13 Barker?
14 A. It had not.
15 Q. What was the previous peak at Barker?
16 A. 95.2 I think, during Tax Day.
17 Q. In 2016?
18 A. Yes, sir.
19 Q. And how does the volume of water that was
20 pooled at Tax Day compare with the volume of water
21 during Hurricane Harvey?
22 A. Harvey was again about double the storage
23 compared to Tax Day.
24 Q. Prior to Hurricane Harvey, had the flood pool
25 from either reservoir ever left government-owned land

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1 and flooded the interior of any homes upstream of the

2 dams?
3 A. No, sir.
4 Q. Prior to Hurricane Harvey, had the pool ever
5 left government land at all?
6 A. Yes, sir.
7 Q. But I take it the flood pool just did not
8 inundate any structures?
9 A. Yes, sir.
10 Q. I want to talk now about the main embankments
11 or the physical structures on the dam, which we saw
12 on a site visit yesterday.
13 How did the elevation of the flood pool
14 levels during Hurricane Harvey compare with the
15 elevations on the main embankments?
16 A. So it was lower than the elevation on the
17 main embankments. At Addicks it reached the end of
18 natural ground, but did not get high enough to even
19 go up over the spillway, the emergency spillway. And
20 on Barker it did not reach the natural ground at the
21 end of the dam.
22 Q. So did water flow over the main embankments
23 on either dam?
24 A. No, sir.
25 Q. You discussed earlier how the main

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1 embankments were changed in the 1980s.

2 A. Yes, sir.
3 Q. And how were they changed?
4 A. So the main embankments were raised during
5 the '80s.
6 Q. And do you recall how high they were raised?
7 A. I would say three or four feet each, or in
8 that range.
9 Q. And did that change the raising of the main
10 embankments, did that impact the size of the flood
11 pool held by the dam during Hurricane Harvey?
12 A. It did not.
13 Q. Why do you say that?
14 A. Because in neither case the water didn't get
15 high enough to reach its previous peak or current
16 crest.
17 Q. So even if the embankments had not been
18 raised, would the pool of water behind the dam still
19 have been left lower than the embankments?
20 A. Yes, sir.
21 Q. We talked about the emergency spillways, and
22 we saw the emergency spillway at Addicks when we were
23 out there yesterday. Those are at the ends of the
24 dams?
25 A. Yes, sir.

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1 Q. And how does the height of the emergency

2 spillways compare with the height of the main
3 embankments?
4 A. It's lower than the height of the main
5 embankments.
6 Q. I think you answered this, but so the record
7 is clear, did the water flow over the emergency
8 spillways during Hurricane Harvey?
9 A. No, sir.
10 Q. You discussed some earlier changes to the
11 emergency spillways.
13 A. Yes, sir.
14 Q. And I think you testified that there's some
15 roller compacted concrete that was added?
16 A. Yes, sir.
17 Q. Were the spillways also raised?
18 A. They were not.
19 Q. And why did the Corps add the concrete?
20 A. To prevent erosion during a big flood, so
21 that they wouldn't erode away and fail during a large
22 flood.
23 Q. So adding the concrete on the emergency
24 spillways did not change the previous elevation?
25 A. It did not.

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1 Q. And did that change, adding the roller

2 compacted concrete on the emergency spillways, did
3 that impact the size of the flood pool behind either
4 dam during Hurricane Harvey?
5 A. No, sir.
6 Q. Why do you say that?
7 A. Because again, the water didn't rise high
8 enough to actually flow over the spillway.
9 THE COURT: The Court has a question. May I
10 ask Mr. Thomas now?
11 Mr. Thomas, were you actually physically
12 present to see whether or not flows from the
13 emergency spillways occurred at either Addicks or
14 Barker?
16 Q. BY MR. SHAPIRO: And can you describe that,
17 please.
18 A. So I inspected both dams personally most
19 days, but certainly on the days of the peak pools,
20 and I was able to visually verify that -- I went to
21 the end of Addicks where the water was flowing, so we
22 were taking pictures of that all throughout. So we
23 had pictures when if first peaked and then its
24 maximum, and then watched it flow around the ends, so
25 I was there and walked out to the end --

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1 THE COURT: Ordinarily I wouldn't do this,

2 but I would just note that Mr. Thomas' testimony this
3 afternoon is inconsistent with Captain Ciliske's
4 testimony yesterday.
5 MR. SHAPIRO: I don't recall that, your
6 Honor.
7 THE COURT: I do.
8 MR. EASTERBY: That's correct, your Honor. I
9 believe Captain Ciliske said 2000 CFS.
10 THE COURT: We don't need to go into the
11 details but I just note that for the record.
12 MR. SHAPIRO: If I could, your Honor, I'm not
13 sure --
14 THE COURT: You can look at the transcript
15 and you'll find it.
16 Q. BY MR. SHAPIRO: When you were out there,
17 what do you recall seeing in terms of the quantity of
18 water going around the ends?
19 A. Well, we would probably -- we tried to
20 estimate it. It's hard to estimate, because it is
21 such a long area that was flowing, it's not just
22 flowing right there. So I think we estimated a few
23 hundred to a thousand CFS, in that range, and you
24 could see it, so you're standing on the edge of the
25 spillway and you see it flowing around the end of it.

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1 I think we showed a picture of that

2 yesterday, so there was a picture shown.
3 Q. Yesterday Mr. Lindner talked about the ABEC
4 Group. Are you familiar with that?
5 A. Yes, sir.
6 Q. And what is the ABEC Group?
7 A. It's the Addicks and Barker emergency
8 coordination team. It's a group of local agencies
9 that have an interest in what's happening with the
10 reservoirs and they routinely meet to prepare for
11 emergencies.
12 Q. And who was -- what entities are part of
13 ABEC?
14 A. The Corps of Engineers, the Harris County
15 Flood Control District, the Fort Bend County, the
16 Offices of Emergency Management of those entities,
17 and there's -- there's some others on the e-mail
18 distribution that I forget the names of.
19 Q. And how does the Corps coordinate with the
20 ABEC team members?
21 A. Certainly they have phone calls and e-mails
22 that are routinely shared with ABEC as situations
23 change at the dam. Then we have in-person meetings.
24 I'm not sure if they have them monthly or quarterly
25 now. We have in-person meetings.

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1 Q. For what purpose?

2 A. To essentially build relationships and then
3 to practice for emergencies.
4 Q. Was ABEC created before Hurricane Harvey?
5 A. It was.
6 Q. And during Hurricane Harvey, did the Corps
7 share information with other ABEC entities?
8 A. Yes, sir.
9 Q. And what kind of information was shared among
10 the ABEC team members?
11 A. Forecasts, discussion of operational
12 decisions, information about flooding and the
13 conditions in the area.
14 Q. During the storm, did the Corps order any
15 evacuations either upstream or downstream of the two
16 reservoirs?
17 A. No, sir.
18 Q. And why not?
19 A. Again, we talked about earlier the state and
20 local governments have the evacuation authority.
21 MR. SHAPIRO: If I could have a minute, your
22 Honor.
23 THE COURT: Yes.
25 MR. SHAPIRO: I'm struggling with -- I don't

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1 want to leave the Court with the impression that

2 Mr. Ciliske was giving the Court bad information.
3 I'm doing my best to think what he might have said
4 that was inconsistent.
5 THE COURT: We don't need commentary,
6 Mr. Shapiro.
7 Q. BY MR. SHAPIRO: Mr. Thomas, when you were
8 out there on the emergency spillways, did you see any
9 water flowing over the emergency spillways?
10 A. Only at the toe, so the spillway slopes down
11 to the ground, as you saw, and there is a concrete
12 apron down there, so over the concrete apron maybe,
13 right at the very toe. The peak water depth was
14 about a foot deep over the ground, and as we showed
15 you the elevations of the spillway, they were more
16 than one foot above the ground.
17 Q. BY MR. SHAPIRO: Mr. Ciliske did testify that
18 the concrete spillway on the emergency -- the
19 concrete on the emergency spillway is designed to not
20 fail with approximately two feet of water on top. Is
21 that approximately correct?
22 A. Right, it's designed not to fail at the
23 spillway design flood.
24 Q. But did that happen, to your understanding?
25 Did any water go over the concrete spillway?

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1 A. No water went over the crest of the emergency

2 spillways.
3 Q. Okay. The crest is the top part that I'm
4 sure you were standing on.
5 There was also some testimony that -- on
6 a street -- if you're at the Addicks emergency
7 spillway, there is a building of some sort right next
8 to it. Are you familiar with that?
9 A. Yes, sir.
10 Q. And beyond that are there some roads?
11 A. Yes, sir.
12 Q. And do you know whether water was flowing
13 down the roads?
14 A. It was.
15 Q. And how do you know that?
16 A. We drove over there.
17 Q. And did you see water flowing along the
18 roads?
19 A. Yes, sir.
20 Q. So was that water coming out of the reservoir
21 and going? Or was it just flowing from elsewhere?
22 A. By the time I got there, it was just kind of
23 sitting there, so...
24 Q. If you --
25 THE COURT: The Court would just note the

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1 testimony is still inconsistent.

2 MR. SHAPIRO: I don't know what to say, your
3 Honor.
4 THE COURT: Well, the transcripts of
5 yesterday and today will say what they say. It is
6 what it is.
7 MR. SHAPIRO: Yeah, I -- well...
8 Q. If you heard that there was more water going
9 around the ends of the dam than what you testified
10 to, would you still be confident in your answer that
11 you gave here today?
12 A. Yes, sir.
13 Q. And why would you be confident in your
14 answer?
15 A. I was there. We had someone stationed at the
16 end of the dam, so we had -- certainly had a history
17 and photographs.
18 Q. And do you know Mr. Ciliske?
19 A. Yes, sir.
20 Q. Are you his supervisor?
21 A. No, sir.
22 Q. But you are the -- what is the -- you are the
23 chief of the -- of the --
24 A. I'm in the engineering and construction
25 division, and Mr. Ciliske is in the operations

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1 division.
2 Q. And when you say operations division, what is
3 that?
4 A. That's just another group inside our
5 district. We're split into a number of divisions and
6 that division focuses on operating projects, so they
7 operate the reservoirs and floodgates and things like
8 that. They have the Park Rangers, who Mr. Ciliske
9 leads.
10 Q. Mr. Ciliske is in charge of the Park Rangers
11 at the facility?
12 A. Yes, sir.
13 Q. And I have another question now about the
14 predecisional timeline, DX93. There is a reference
15 there in a couple of the notations to a group
16 Flood-DLL. Do you know what that is? Do you know
17 what that reference refers to?
18 A. During the event we set up e-mail
19 distribution lists so that people who are emergency
20 responders in some way can all get the same e-mails
21 at the same time.
22 Q. In looking at the first page of this, one of
23 the entries from 8-26 says there's a forecast, and it
24 goes on and says, "Immediately began discussing with
25 whole Flood-DLL list."

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1 Do you see that?

2 A. Yes, sir.
3 Q. And so who was on that Flood-DLL list?
4 A. Emergency management, water control,
5 operations, mostly it's internal to USACE, so I don't
6 think they had anyone else at USACE on the list. I
7 think they had -- I think the commander may have been
8 on the list. Basically everyone that was interested
9 in those decisions kept being added to that list, so
10 the list actually changed over time, but in general
11 it was everyone related to the reservoirs and the
12 entire flood effort.
13 MR. SHAPIRO: Thank you, Mr. Thomas.
14 THE COURT: Mr. Easterby, redirect of an
15 adverse witness.
17 BY MR. EASTERBY:
18 Q. Mr. Thomas, I'd like to show you what's been
19 marked for identification as Plaintiffs' Exhibit
20 1957.
21 Can you please put that up, Matt?
22 And is this a PowerPoint that the Corps
23 of Engineers prepared and showed to the public after
24 Harvey?
25 A. After Harvey?

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1 Q. I'm sorry. Is it a PowerPoint that the Corps

2 of Engineers prepared and showed to the public at
3 some point?
4 A. It looks like it.
5 Q. Okay.
6 MR. EASTERBY: We would offer to admit
7 Plaintiffs' Exhibit 1597.
8 MR. SHAPIRO: I don't think it's been
9 established this is the correct individual for this.
10 THE COURT: I'm sorry, I can't hear.
11 MR. SHAPIRO: It's not been established that
12 that is the correct individual, so foundation.
14 Q. BY MR. EASTERBY: Okay. Mr. Thomas, have you
15 ever been involved in any of the presentations to the
16 public?
17 A. Certainly at none of the presentations that
18 occurred during this time period. There was...
19 Q. My question was have you ever been involved
20 in a presentation that was with the public?
21 A. I have been.
22 Q. Okay. Have you been involved in
23 presentations with the first responders?
24 A. Yes, sir.
25 Q. Have you seen this PowerPoint before?

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1 A. I'm not sure.

2 Q. Okay. Mr. Thomas, within the Corps, who
3 typically does these kinds of presentations? Would
4 that be Mr. Long?
5 A. He frequently does give presentations with
6 this title and this kind of content.
7 Q. And in your position, do you ever review
8 these types of PowerPoints to make sure they're
9 accurate and correct?
10 A. Sometimes.
11 MR. EASTERBY: Your Honor, we move to admit
13 MR. SHAPIRO: Object; foundation.
15 MR. EASTERBY: Okay. We'll move on.
16 Q. All right. Mr. Thomas, I'm going to try to
17 start at the end of Mr. Shapiro's examination and
18 work backwards, so I believe you said that the water
19 control manual is available today on the Corps'
20 website.
21 A. As far as I know it's available today.
22 Q. It's correct that prior to Harvey it was not
23 available on the Corps' website?
24 A. My understanding is it was available prior to
25 Harvey.

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1 Q. Really?
2 A. That's my understanding.
3 Q. So it's your understanding that you didn't
4 have to make a Freedom of Information Act request to
5 get the water control manual prior to Harvey?
6 A. Yes, sir.
7 In fact, during the storm that question
8 came up, and so I went to the website to go find it
9 myself to make sure it was there during the storm.
10 Q. Did you look before the storm to see if it
11 was there?
12 A. I did not.
13 Q. So prior to Harvey making landfall August
14 25th, 2017, you can't say that the water control
15 manual was publicly available on the website, can
16 you?
17 A. I never personally verified it before that
18 day.
19 Q. Understood.
20 So when you said these are the highest
21 risk dams in the country?
22 A. Highest risk Corps of Engineers dams.
23 Q. And does that also mean that they have a high
24 risk of submerging upstream homes from the runoff
25 that's impounded by the embankments?

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1 A. So the risk that's driving their high rating

2 is associated with the potential for failure and the
3 downstream consequences.
4 Q. There is also a risk of submerging upstream
5 homes from the runoff that's impounded by the
6 embankments?
7 A. Yes, sir.
8 Q. And would you say that they're the highest
9 risk Corps of Engineers dams in the country on that
10 score?
11 A. Say again?
12 Q. Would you say they are the highest risk Corps
13 of Engineers dams in the country on that score;
14 submerging the upstream homes with the impounded
15 runoff?
16 A. Like I said, that's not what's driving it.
17 The risk is driven by the downstream life loss.
18 Q. Right. The Corps operates and uses the dams
19 such that the concern is not about upstream life loss
20 or property damage; true?
21 A. I wouldn't say that's true.
22 Q. You wouldn't say that's true?
23 A. I would say there's concern about it, I
24 just -- yeah, I would say there was concern about
25 upstream risk.

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1 Q. They're not operated to give any flood

2 mitigation benefit protection to upstream; right?
3 A. Correct.
4 Q. And it's true that you're not aware of any
5 other Corps of Engineer dams in the entire country
6 where the Corps decided to only buy a fraction of
7 what it needs to store the runoff impounded by the
8 project; right?
9 MR. SHAPIRO: Well, object to the form of the
10 question. It's vague and it's not clear that this
11 witness has the foundation to answer that.
13 THE WITNESS: Can you say it again, please?
14 Q. BY MR. EASTERBY: You're not aware of any
15 other Corps of Engineers dam in the country where the
16 government decided to buy only a fraction of what its
17 project needs to store the runoff impounded by the
18 embankments.
19 A. I think that's untrue.
20 Q. Really?
21 What's -- what's the other dam that has
22 a worse situation than Addicks and Barker with
23 regards to the upstream submersion issue?
24 A. I really don't have the details on all the
25 other dams related to the upstream inundation risk,

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1 but other dams do have the risk of flooding

2 properties upstream during extreme events.
3 Q. But you can't tell me any of those dams today
4 can you?
5 A. I can tell you one.
6 Q. Okay. Tell me.
7 A. Lewisville, Lake Lewisville.
8 Q. And where is that located?
9 A. It's in the Dallas, Texas area.
10 Q. Is that upstream area full of residents?
11 A. I'm not -- not as many as here.
12 Q. How many residents are within the reservoir
13 pools of the Lewisville project, Mr. Thomas?
14 A. I don't know.
15 Q. A hundred?
16 A. I don't know.
17 Q. How do you know it's less or more or -- if
18 you don't know, how do you know enough to answer the
19 question?
20 A. So we have meetings amongst our division with
21 dam safety officers, where we talk about general
22 kinds of problems. And so I'm not an expert on the
23 other dams in the Corps of Engineers, but the other
24 dam safety officers indicated that they had a similar
25 kind of risk, but with less homes than ours.

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1 Q. Okay. Other than Lewisville, any other ones

2 that you know of where the government decided not to
3 buy enough property to contain all the runoff
4 impounded by its embankments?
5 A. I can't remember any names right now.
6 Q. So is Lewisville also within the Southwest
7 District, or Division, I mean?
8 A. Yes, sir.
9 Q. Just those two; huh?
10 A. Well, like I said, I haven't gone back and
11 researched the other dams to give you this
12 information.
13 Q. Okay. So I'd like to show you what's been
14 marked for identification as Plaintiffs' Exhibit
15 1644.
17 Q. You'll recall when I spoke to you
18 first -- oh, I've got a copy for you, Mr. Thomas.
19 There you go.
20 When I spoke to you initially, I asked
21 you about an e-mail you sent on August 30th, 2017,
22 after you took that helicopter tour.
24 A. Yes, sir.
25 Q. Is this that e-mail?

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1 A. I believe so.
2 Q. And we would move to admit Plaintiffs'
3 Exhibit 1644.
4 MR. SHAPIRO: No objection.
7 in evidence.)
8 Q. BY MR. EASTERBY: Okay. And here again, your
9 recommendation was to seek federal funding to buy all
10 of the property in the Addicks and Barker reservoirs
11 and in the surcharge corridor; correct?
12 A. Correct.
13 Q. And Mr. Thomas, why did you make that
14 recommendation?
15 A. Part of my job is reducing flood risk, and I
16 would love to reduce the flood risk at Addicks and
17 Barker.
18 Q. Would you love to reduce the risk of the
19 upstream homes being submerged by the government's
20 pool?
21 A. I would like to see the upstream flood risk
22 reduced.
23 Q. And is this something that's going to be
24 pursued out of this Buffalo Bayou and Tributary
25 resiliency study that's ongoing?

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1 A. Yes, sir.
2 Q. But of course we have that no-action
3 alternative on the table, too, don't we?
4 A. We do.
5 Q. Okay. So counsel for the government showed
6 you defense Exhibit 255, which was Chapter 11
7 engineering out of the dam safety modification.
9 A. Yes, sir.
10 Q. And you talked about the exceedance
11 probabilities?
12 A. Yes, sir.
13 Q. So the pools that resulted from the dams
14 impounding all that runoff during Harvey, those pools
15 were greater than a standard project flood; right?
16 A. Right.
17 Q. So isn't the probability of that occurring
18 basically one, inasmuch as it's already happened?
19 A. So the probabilities that you see are annual
20 recurrence intervals, so the probability that we're
21 talking about is the probability of it occurring one
22 or more times in any given year.
23 Q. It's already happened, Mr. Thomas; true?
24 A. It has happened.
25 Q. I'd like to show you what's been admitted as

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1 Joint Exhibit 95.

3 Q. This is that Addicks and Barker upstream
4 meeting summary report we talked about a couple days
5 ago.
7 A. Yes, sir.
8 Q. And I believe that we established a few days
9 ago that -- let's see -- 143 people attended those
10 meetings?
11 A. Yes, sir.
12 Q. And did the Corps of Engineers try to get the
13 word out about these meetings before the meetings
14 occurred?
15 A. So let's look. I don't remember.
17 Mr. Easterby, Mr. Thomas, Mr. Shapiro,
18 we do not have JX95 admitted. We do have JX94
19 admitted and I understand they are the same document.
20 I hope that is so.
21 MR. EASTERBY: I do as well, your Honor, and
22 candidly I'd prefer to work off of 94 because I have
23 reviewed that one at length.
24 THE COURT: All right. Let's use 94.
25 Mr. Shapiro.

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1 MR. SHAPIRO: Your Honor, the reason I was

2 using 95 is because the picture quality is just
3 better. I think substantively it is the same thing
4 is my understanding. I'm told, though, by Katrina
5 that perhaps there is a page difference, but this
6 seems like something we can work out among counsel.
7 THE COURT: We're going to take 94.
8 MR. EASTERBY: Yes, sir. Thank you, your
9 Honor.
10 Q. Mr. Thomas, turn with me if you would to the
11 page that's Bates stamped USACE594476?
13 I've got it.
14 Q. So I asked you if the Corps attempted to get
15 the word out about these meetings.
17 A. Yes, sir.
18 Q. And this states -- that's an example yard
19 sign advertising the February 24th, 2010, meeting;
20 right?
21 A. Yes, sir.
22 Q. And do you see that little sign over there?
23 A. Yes, sir.
24 Q. Can you read it?
25 A. Yes, sir.

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1 Q. Really? What does it say?

2 A. Well, it's also shown on 594475, so you can
3 read it.
4 Q. Oh, it's a little bit bigger. Was that some
5 kind of extent of the advertising?
6 A. Well, this is before my time, so I went back
7 and looked at 594370, and it at least
8 mentioned -- what does it say here?
9 It was in local newspapers, so there was
10 at least that extra, and there were formal letters of
11 invitation sent to a lot of different people here and
12 homeowners, it says landowners and homeowners'
13 associations, so that seems okay.
14 Q. Right. I mean the Corps actually, I think,
15 sent some letters out to some specific homeowners
16 that live adjacent to the dams.
17 A. So I don't remember exactly who they went to.
18 Like I said, I wasn't working on this at the time.
19 Q. But again, the Corps never sent any letter
20 out saying you live within the pool area of Addicks
21 and Barker. That never happened.
22 A. Not that I'm aware of.
23 Q. Look with me if you would at USACE594435.
25 Q. And is this a slide from one of the

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1 PowerPoints that was shown to the public?

2 A. It looks that way.
3 Q. Does it look to you like it's representing to
4 the public that the hundred-year flood pool in Barker
5 would be contained within government-owned land?
6 A. It does show the hundred-year pool inside
8 Q. And that's not accurate, is it?
9 A. Like I said, it depends on the analysis that
10 you look at.
11 Q. So it depends on the analysis that you look
12 at, Mr. Thomas. Is it correct that during Harvey,
13 you had Michael Kauffman calculate the amount of rain
14 that it would take to fill Addicks and Barker to
15 government-owned land?
16 A. Probably.
17 Q. And who is Mr. Kauffman?
18 A. He's one of our hydraulic engineers.
19 Q. Is he also the CWMS -- C-W-M-S administrator
20 for the district?
21 A. He is.
22 Q. And what does the CWMS administrator do?
23 A. Well, he administers the Corps water
24 management system, which essentially he's maintaining
25 that forecast system, making sure it's operational

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1 and routinely running forecasts.

2 Q. Okay. If he made that calculation about how
3 much rain it would take to fill the reservoirs, I
4 trust you would believe he was competent and
5 qualified to do so?
6 A. Yes, sir.
7 Q. I think we're going to see Mr. Kauffman in a
8 few days, so I'll leave those questions to him.
9 So Mr. Thomas, you said a number of
10 times that the Corps leaves it to the counties to
11 warn the public and issue any evacuation plans;
12 right?
13 A. Yes, sir.
14 Q. So in the '95 Recon Report, one of the
15 options on the table was for the Corps to develop a
16 plan to warn the public and issue evacuation notices;
17 correct?
18 A. That was the plan.
19 Q. It's not as if the Corps or the federal
20 government lacks the authority to do that if it wants
21 to; right?
22 A. I'm not sure.
23 Q. Well, the fact that it was considered as one
24 of the options in the '95 Recon Report, would that
25 suggest to you that it is within the federal

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1 government's power to do so if it wants to?

2 A. Well, certainly evacuation planning is within
3 the authority of the study, but I'm not sure who
4 would have had actually been issuing the evacuation
5 orders in whatever plan they came up with.
6 Q. I mean certainly the Corps of Engineers, if
7 it wanted to, could, I don't know, send out a press
8 release when it knew or predicted that water was
9 going to leave government-owned land and submerge
10 thousands of homes?
11 A. Yes, sir.
12 Q. And it's correct that the Corps of Engineers
13 knew about that on August 25th, 2017; true?
14 A. I believe that was when the first forecast
15 showed pools leaving government-owned land.
16 Q. And the Corps of Engineers did not issue a
17 press release at that time alerting the public that
18 we project that we will be submerging thousands of
19 homes behind the reservoirs; correct?
20 A. Correct.
21 Q. Is it correct that the Corps of Engineers did
22 not issue a press release saying that upstream homes
23 had been submerged until they'd been submerged?
24 A. I don't remember if it's in any of the other
25 press releases or not.

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1 Q. You're not aware of the Corps of Engineers or

2 the government issuing a press release or public
3 notice prior to August 30th alerting or warning the
4 upstream folks that you're going to be submerged by
5 our reservoir pool; true?
6 A. There were press releases, I just don't
7 remember the content.
8 Q. I'm talking about the Corps of Engineers
9 press releases?
10 A. Like I said, I didn't bring the whole history
11 of the press releases with me.
12 Q. I think we can talk to Colonel Zetterstrom
13 about that, so for the sake of time, I will move on.
14 Was Captain Ciliske present at the north
15 end of the Addicks auxiliary spillway during Harvey?
16 A. He was present. I don't remember how much
17 time he spent at the north end of the spillway.
18 Q. So as between Captain Ciliske and yourself,
19 who do you think would have better information as to
20 the amount of flow that went around the north end of
21 the Addicks auxiliary spillway?
22 A. The amount?
23 Q. Sure. In cubic feet per second. I think he
24 said 2000. I think you said it's 300 or 500. As
25 between the two of you, who do you think has better

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1 information on that subject?

2 A. Probably me.
3 Q. So you testified in response to the
4 government lawyer's question that there were homes in
5 Bear Creek Village in the 1850s?
6 A. That's what I read in that report.
7 Q. So there were actually homes there before the
8 dams were built; right?
9 A. There may have been.
10 Q. Is it correct, Mr. Thomas, that the Buffalo
11 Bayou and Tributaries project as we have defined it
12 in your testimony over these many days is the only
13 federal project affecting the upper Buffalo Bayou
14 watersheds?
15 A. I think that's true.
16 Q. And those watersheds again are the Addicks
17 watershed, Barker watershed, and that portion of
18 Cypress Creek that flows into Addicks?
19 A. Yes, sir.
20 Q. So it's just Addicks dam and structures,
21 Barker dam and structures, and those 7-1/2 miles of
22 improved channel downstream.
23 A. I should clarify my last answer: Only
24 federal USACE-led civil works projects.
25 Q. And you're not aware of any other federal

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1 flood detention or flood control projects in the

2 upper Buffalo Bayou watersheds; true?
3 A. True.
4 Q. Look with me, if you would, at what's been
5 admitted as Plaintiffs' Exhibit 707?
7 Q. This is the standard project flood
8 determination engineering -- what is -- let me start
9 from the top.
10 This is engineering manual 110-2-1411;
11 correct?
12 A. Yes, sir.
13 Q. Standard Project Flood Determination.
14 A. Yes, sir.
15 THE COURT: What exhibit are you examining or
16 involved with?
17 MR. EASTERBY: I'm sorry, Judge, I think I
18 misspoke. It's Plaintiffs Exhibit 707. And if I
19 said something differently, I said --
20 THE COURT: Well, you said it was previously
21 admitted. I have that as not having been previously
22 admitted.
23 MR. EASTERBY: Oh, I apologize, your Honor.
24 Q. Mr. Thomas, you're familiar with this
25 engineering manual; correct?

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1 A. Yes, sir.
2 MR. EASTERBY: We move to admit Plaintiffs'
3 Exhibit 707.
7 evidence.)
8 Q. BY MR. EASTERBY: And this is the Corps
9 regulation that prescribes how to go about
10 establishing a standard project flood.
11 A. It certainly was. I don't remember if it's
12 been superseded or not.
13 Q. All right. Look with me at page 2, if you
14 would.
16 Q. It has a -- look with me at USACE000497, if
17 you would.
19 Q. Okay. If you could zoom in, Matt, up there
20 on the standard project storm portion.
21 And I believe it states, "The standard
22 project storm estimate for a particular drainage area
23 should represent the most severe flood-producing
24 rainfall, depth area, duration, relationship," and I
25 won't try to pronounce that, how do you say that?

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1 Isohyetal?
2 A. That's what I say. I don't know if it's
3 right either.
4 Q. "Of any storm that's considered reasonably
5 characteristic of the region in which the drainage
6 basin is located"; correct?
7 A. Correct.
8 Q. And if you look down to subparagraph C, it
9 says, "The term region, as used above, is construed
10 to include the areas surrounding the given basin in
11 which storm-producing factors are substantially
12 comparable; i.e., the general area within which
13 meteorological influences and topography are
14 sufficiently alike to permit adjustment of storm data
15 to a common basis of comparison with a practical
16 degree of reliability"; correct?
17 A. Correct.
18 Q. So as I understand it, it's saying that
19 region is an area where things are comparable enough
20 to produce large storms; right?
21 A. I think partially, not just large, but the
22 same kind of storm in any other locations in the
23 region. Like you couldn't, for example, take a storm
24 from Hawaii and apply it here in Texas and expect to
25 have the same kind of result.

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1 Q. Sure, but you could take storms that occurred

2 in the Gulf Coast area of Texas and apply them, could
3 you not?
4 A. Exactly.
5 Q. Like Claudette?
6 A. Yes.
7 Q. Allison?
8 A. Yes.
9 Q. The Hearne storm of 1899?
10 A. Yes, sir.
11 Q. That was only 90 miles away; right?
12 And so as I understand it, the way that
13 you get a standard project flood is you route the
14 standard project storm estimate to come up with the
15 standard project flood; is that correct?
16 A. Correct.
17 Q. So that would mean that routing the Hearne
18 storm or Claudette or Allison would be a valid basis
19 to come up with the standard project flood?
20 A. Well, maybe. So you look at this
21 iteratively, where you decide what's reasonably
22 characteristic of the region. So you look at more
23 current guidance, and it will talk about the standard
24 project flood having a recurrence interval between 1
25 and 200 or 1 in 1000. So you have to look at each

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1 storm and make a decision about what's reasonably

2 characteristic.
3 Q. As I look at this 103 specification of a
4 standard project storm, I don't see it talking about
5 recurrence interval?
6 A. Right. That's why I said in more recent
7 documentation it talks about recurrence interval.
8 Q. And this is back from 1965?
9 A. Yes, sir.
10 Q. And it's correct that the Corps of Engineers
11 calculated a standard project flood for Addicks and
12 Barker in 1965?
13 A. There's certainly one presented in the '60s
14 and '70s.
15 Q. I believe well prior to that; isn't that
16 right?
17 A. There were.
18 Q. But the standard project flood that the Corps
19 used was not based on the 1899 Hearne storm, was it?
20 A. No, not in the '50s at least.
21 Q. It was based on the 1935 storm; right?
22 A. Well, it was closer than the 1935 storm.
23 Q. Right. And that was 15 inches of rain?
24 A. Average over the basin, yes, sir.
25 Q. And the Hearne storm was, what, about 30, 31

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1 inches?
2 A. Yes, sir.
3 Q. And the Hearne storm was used as the design
4 storm in the original design for these reservoirs;
5 correct?
6 A. Correct.
7 Q. So the Hearne storm really should be the
8 standard project flood storm, according to this
9 policy; true?
10 A. Untrue.
11 Q. Untrue?
12 A. That's not true.
13 Q. It's reasonably characteristic of a storm
14 that could be produced in this region; yes?
15 A. So we did this analysis, right, in the '40s,
16 and we made that determination, and certainly we
17 decided at the time that the Hearne storm was the
18 higher theoretical limit, and that something less
19 would be like a standard project flood. So that was
20 a decision we made at the time.
21 Q. Right. It was a decision you all made, but
22 according to this engineering manual, the standard
23 project storm is supposed to be the largest one
24 that's reasonably characteristic of the region;
25 correct?

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1 A. Yes, sir.
2 Q. And that region includes the areas we just
3 described. It includes Hearne; yes?
4 A. Yes, sir.
5 Q. But the Corps just decided to use a smaller
6 storm; yes?
7 A. No, sir.
8 Q. No?
9 A. No, sir.
10 Q. All right. We'll leave it at this: You'd
11 agree with me that per this manual, the Hearne storm
12 qualifies as a standard project storm; yes?
13 A. No, sir.
14 Q. It's in the region; yes?
15 A. It is in the region.
16 Q. It happened.
17 MR. SHAPIRO: Your Honor, I think we're
18 plowing the same ground, so I'll object.
19 THE COURT: We are.
20 MR. SHAPIRO: Asked and answered.
21 THE COURT: We haven't passed the three
22 strike point, though.
23 MR. EASTERBY: I made my point, Judge, I'll
24 move on.
25 THE COURT: Mr. Easterby, it is probably time

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1 for our afternoon break. Do you mind taking a break

2 at all?
3 MR. EASTERBY: Not at all.
4 THE COURT: Mr. Thomas, do you mind?
5 THE WITNESS: No, sir.
7 MR. SHAPIRO: No, your Honor.
8 THE COURT: All right. We are in recess for
9 15 minutes.
11 recess.
12 (Recessed from 3:10 p.m. - 3:30 p.m.)
14 Mr. Easterby, you may proceed.
15 MR. EASTERBY: Thank you, your Honor.
16 Q. Mr. Thomas, do you recall giving some
17 testimony a few minutes ago about the Lewisville dam
18 up in the Dallas area?
19 A. Yes, sir.
20 Q. Okay. I'd like to show you what's been
21 marked for identification as Exhibit 2298.
22 Just so everybody knows, this is new,
23 and I will be using if for impeachment.
24 Mr. Thomas, that is a Corps of Engineers
25 managed project; correct?

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1 A. Yes, sir.
2 Q. And the front page of 2298 says "Guidelines
3 for property owners adjacent to public land";
4 correct?
5 A. Yes, sir.
6 THE COURT: Mr. Easterby, I am sorry to
7 interrupt, but we already have an Exhibit PX2298 can
8 we make this PX2299?
9 MR. EASTERBY: Your Honor, let's go with
10 3000, I slipped one in as well.
11 THE COURT: All right. Let's do 3000.
12 Q. BY MR. EASTERBY: This is dated August 8th,
13 2006?
14 A. Yes, sir.
15 Q. What is the elevation of the conservation
16 pool as stated on this document?
17 A. 522 feet, mean sea level.
18 Q. What is this elevation of the uncontrolled
19 spillway as per this document?
21 Q. And what about the elevation of the flowage
22 easement?
24 Q. Does that indicate to you that the government
25 got flowage easements five feet above the elevation

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1 of the uncontrolled spillway at the Lewisville dam?

2 A. It appears.
3 Q. And you know what a flowage easement is;
4 right?
5 A. Yes, sir.
6 Q. It has over here "flowage easement land" on
7 the right-hand column. Do you see that?
8 A. Yes, sir.
9 Q. It says, "Perpetual flowage easements
10 estates, such as those the government holds over
11 property owned by others in the Lewisville Lake area
12 grant the government full, complete, and perpetual
13 right, power, privilege, and easement to occasionally
14 overflow, flood and submerge lands in connection with
15 the operation and maintenance of the lake"; yes?
16 A. Yes, sir.
17 Q. And it also has here the uses of public land
18 which are prohibited. Do you see all those? The
19 second column on the bottom.
20 A. Oh, yes, sir.
21 Q. So in simple terms, when the Corps of
22 Engineers has a flowage easement, you can't have
23 personal property there, can you?
24 A. No, sir.
25 Q. You can't have any vessels there; right?

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1 A. Yes, sir.
2 Q. Number 5 on the right column, can't construct
3 buildings; right?
4 A. Yes, sir.
5 Q. And that's because they're going to get
6 submerged in the course of the project's operation;
7 right?
8 A. They could.
9 Q. Yeah.
10 I mean, if the water is held back
11 enough, it gets high enough, it's going to submerge;
12 right?
13 A. Yes, sir.
14 Q. Top of the second column, government-owned
15 public land. Do you see that?
16 A. Yes, sir.
17 Q. Well, Mr. Thomas, you stated previously, I
18 think, that in Lewisville Lake that there were some
19 structures that were at risk of being submerged by
20 the reservoir pool?
22 Q. Does this make you believe that your
23 understanding might have been mistaken?
24 A. Not necessarily.
25 I'm going off of a discussion at a dam

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1 safety meeting, so I'm assuming the pool must get

2 higher than 537 feet, but I haven't done a detailed
3 study on this, just what I heard in the meeting.
4 Q. Sure.
5 On the left-hand side, first column, it
6 says "Private exclusive use of public land is not
7 permitted"; correct?
8 A. Correct.
9 Q. And that would include the areas that are
10 burdened by the flowage easement that the government
11 secured and paid for in the Lewisville area; correct?
13 MR. SHAPIRO: That assumes facts not in
14 evidence.
15 THE COURT: What is the fact not in evidence?
16 That the government didn't pay for the easement?
17 MR. SHAPIRO: That there was any compensation
18 paid for.
19 THE COURT: All right. Mr. Easterby, I think
20 you can ask the question in a different way.
21 You might have been doing it. Wait a
22 minute.
23 MR. EASTERBY: Well, let me take it this
24 direction, your Honor, if I may.
25 Q. It's correct, Mr. Thomas, that with regard to

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1 the neighborhoods behind Addicks and Barker that are

2 occupied by many of the folks that are sitting over
3 here in the jury box, the government never got any
4 flowage easements; correct?
5 A. Correct.
6 Q. Never even tried; true?
7 A. I don't know if there was an attempt at that
8 or not. I don't know of one.
9 Q. And if the government had, those easements
10 would have prohibited the building of residential
11 homes; true?
12 A. Correct.
13 MR. EASTERBY: So we move to admit this as
14 Plaintiffs' Exhibit 3000, your Honor.
15 MR. SHAPIRO: Objection; I don't think he's
16 actually been impeached by this document.
17 MR. EASTERBY: Excuse me, your Honor.
18 THE COURT: Well, that's true.
19 On the other hand, there are caveats
20 expressed that make some of this inconsistent, so the
21 Court will admit it, but it's really of very limited
22 evidentiary value.
24 in evidence.)
25 MR. EASTERBY: Okay. I'll move on, Judge.

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1 Q. Now Mr. Thomas, you testified that with

2 regard to the Tax Day storm of 2016, there were no
3 structures flooded by the reservoir pool. Do you
4 recall that?
5 A. Yes, sir.
6 Q. And you're obviously knowledgeable on that
7 issue.
8 A. Yes, sir.
9 Q. You've reviewed internal district documents
10 on that issue; correct?
11 A. Some.
12 Q. You've discussed that issue with the water
13 control team; correct?
14 A. Yes, sir.
15 Q. Including Mr. Maglio who is the head of the
16 water control team; yes?
17 A. Yes, sir.
18 Q. Now Mr. Thomas, you recall the Emergency
19 Action Plan's water impact tables?
20 A. Yes, sir.
21 Q. Matt, could you put up JX118, please, and go
22 to USACE019883.
23 019883 should be E-2.
24 MR. CHAREST: JX118. JX118.
25 MR. EASTERBY: It's right towards the end.

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1 It's E-2, 019883.

2 One more up. There you go.
3 Okay. If you would, Matt, zoom into the
4 bottom portion at the -- about the 101.2 elevation.
5 Q. And it states here that at 101.2, the first
6 stream is flooded upstream; right?
7 A. Yes, sir.
8 Q. And that's before the government-owned land
9 elevation; yes?
10 A. Yes, sir.
11 Q. So it's correct that the rising reservoir
12 pool will actually flood those upstream streets
13 before the pool gets beyond government-owned land;
14 right?
15 MR. SHAPIRO: Objection; that's vague as to
16 what he means by "those upstream streets."
17 THE COURT: Substitute "some" for "those,"
18 and I think that will work. Let's do that.
20 Q. It's correct that the rising pool will flood
21 the first street before that pool exceeds
22 government-owned land; right?
23 A. Correct.
24 Q. And you know why that is; correct?
25 A. I believe so.

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1 Q. And that's because a rising reservoir pool

2 impedes the drainage from those subdivisions; right?
3 A. It can back up the drainage.
4 Q. And it's correct that during the Tax Day
5 event, that's exactly what happened; right?
7 Q. All right. Let me show you what's been
8 marked for identification as Plaintiffs' Exhibit 20.
10 Q. Twenty is a document entitled "Not for Public
11 Release." Do you see that?
12 A. Yes, sir.
13 Q. It's Bates-stamped USACE207223; correct?
14 A. I can't read the 23 on this one, but correct.
15 Q. I went to the second page and counted back
16 one, but you know this was produced by the district;
17 right?
18 A. Correct.
19 Q. And this is a document that we discussed in
20 your deposition; correct?
21 A. Correct.
22 Q. And based on your prior testimony about your
23 knowledge and discussions on the Tax Day event, I
24 would move to admit Plaintiffs' Exhibit 20 into
25 evidence.

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2 Honor.
3 THE COURT: Yes.
4 MR. SHAPIRO: Can we just get a proffer on
5 what this is in response to?
6 MR. EASTERBY: I'll be happy to.
7 Q. So you testified in response to the
8 government lawyer's questions that there were no
9 structures flooded during Tax Day because of rising
10 reservoir pools; right?
11 A. Correct.
12 MR. EASTERBY: It's in response to that.
16 evidence.)
17 Q. BY MR. EASTERBY: Okay. Number one, "not for
18 public release" means you're not going to show this
19 to the public; correct?
20 A. Correct.
21 Q. Look down, if you would, to the current issue
22 paragraph only, the first page, please.
24 Q. It says here that one cause of the upstream
25 flooding was the restricted drainage from

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1 neighborhood storm water management systems that

2 drain into Addicks reservoir; right?
3 A. Correct.
4 Q. The restriction was due to the elevated
5 reservoir pools; correct?
6 A. Correct.
7 Q. And it says up here at the top that rising
8 waters from Addicks did flood neighborhood streets
9 outside of government-owned property. Homes upstream
10 of Addicks were not flooded by rising reservoir
11 pools; right?
12 A. Correct.
13 Q. So are you all making a distinction between
14 homes that are flooded by this backwater effect
15 caused by the rising reservoir pool, as opposed to
16 the pool itself?
17 A. I'm not sure what analysis was done for this
18 document.
19 Q. I mean, this is talking about homes being
20 flooded behind Addicks associated with the Tax Day
21 storm; correct?
22 A. Correct.
23 Q. And it's talking about that being due to the
24 restricted drainage from the rising reservoir pool;
25 correct?

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1 A. Correct.
2 Q. That's backwater; right?
3 A. It could be.
4 Q. Well, it is, isn't it?
5 A. As described here.
6 Like I said, I'm not sure what analysis
7 went into this before they wrote it down.
8 Q. And when you say "as described here," you're
9 talking about this Corps-of-Engineers-produced
10 document that says "not for public release"?
11 A. Correct.
12 Q. And the reason why there is restricted
13 drainage is because those inflows are being held back
14 by the government's embankments; yes?
15 A. In some cases.
16 Q. So wouldn't it be true, then, that that
17 structure flooding, at least in part, was due to
18 those backwater effects?
19 A. Like I said, I'm not sure what analysis went
20 into this. I don't know.
21 Q. Well, I mean, you have full faith and
22 confidence in your water control team, don't you?
23 A. Yes, sir.
24 Q. No reason to doubt the accuracy of the
25 conclusions reached here?

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1 A. I don't know what analysis went into these

2 conclusions. I'm not sure if it's a discussion that
3 is based on just talking about it, or if they did an
4 analysis that I just haven't looked at.
5 Q. And Mr. Thomas, it's correct that the Corps
6 never made any disclosure to the folks that live
7 behind Addicks in the Bear Creek Village area about
8 this backwater condition we've been discussing;
9 right?
10 A. I'm not sure that's true.
11 Q. Oh, the Corps disclosed that the structure
12 flooding during Tax Day was in part caused by the
13 restricted drainage from the rising reservoir pools?
14 A. I don't know.
15 Q. And if it did that, I suppose we'd have seen
16 a press release?
17 A. Maybe. Maybe it was discussed in a public
18 meeting. I'm not sure.
19 Q. Well, I mean, I'm sure you agree with me that
20 a not-for-public-release document would not be shown
21 at a public meeting?
22 A. Right.
23 Q. During Harvey, there was some suggestions
24 about how to potentially mitigate some of the
25 submersion that was going to happen in the upstream

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1 areas adjacent to government-owned land; correct?

2 A. Correct.
3 Q. And do you recall sending an e-mail back on
4 August 26th, 2017, to Colonel Zetterstrom and others?
5 A. I might if you show it to me.
6 Q. Sure.
7 Let me hand you what's been marked for
8 identification as 1658. Plaintiffs' 1658.
9 This is an e-mail that you sent August
10 26th, 2017, at 4:48 p.m., re Addicks Barker; correct?
11 A. Correct.
12 Q. And you appear to be responding to Michael
13 Zalesak?
14 A. Correct.
15 Q. Z-a-l-e-s-a-k; right?
16 A. Right.
17 MR. EASTERBY: We move to admit Plaintiffs'
18 Exhibit 1658.
22 in evidence.)
23 Q. BY MR. EASTERBY: So he writes to you
24 initially -- and you need to turn the page -- and he
25 says, "My thought is..." Go down one more, if you

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1 would, Matt. "Sandbags behind the reservoir area are

2 an almost impossible mission, as the water just backs
3 up in the creeks that flow to Addicks and Barker";
4 right?
5 A. Correct.
6 Q. Meaning that water is going to back up and
7 push out of those incoming tributaries, and sandbags
8 are not going to help; right?
9 A. Say again?
10 Q. That means that the water is going to back up
11 in those incoming tributaries, and sandbags would not
12 help; right?
13 A. I think the way I took his meaning was that
14 the water is flowing in from many different
15 locations, and there wasn't some way to build a
16 sandbag wall. It's just too big an area.
17 Q. So when he says, "As water just backs up in
18 the creeks that flow to Addicks Barker," you didn't
19 understand that to mean that water just backs up into
20 creeks that flow to Addicks/Barker?
21 A. I think in the context, that's what he
22 explained.
23 Q. Well, I mean, that's exactly what he said;
24 right?
25 A. Right.

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1 Q. I mean, that's backwater?

2 A. Right.
3 Q. I mean that could easily cause a creek to
4 come out its bank, couldn't it?
5 A. If the pool levels were high enough.
6 Q. Sure.
7 And the Corps has never done any kind of
8 backwater envelope analysis on any of those
9 tributaries, has it?
10 A. Not that I know of.
11 Q. In response to his second point, you say
12 "Agreed. Would have to do each house. There's no
13 easy solution there. Seems impractical"; right?
14 A. Correct.
15 Q. That means you have to literally go and put
16 sandbags around every individual house to keep the
17 water out?
18 A. Correct.
19 Q. And of course that wasn't done.
20 A. It was not.
21 Q. Okay. Let's talk about what was introduced
22 as Plaintiffs' Exhibit 87.
23 And I would direct you to -- just for
24 the record, this is the environmental assessment
25 spillway design flood dated November 1981; right?

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1 A. Yes, sir.
2 Q. And this was the time period when the Corps
3 was considering that plan 1 of degrading the ends of
4 the dams; right?
5 A. Correct.
6 Q. And ultimately that's not the plan they
7 pursued; yes?
8 A. Correct.
9 Q. They went with plan 5B which we discussed
10 enough to not have to repeat; yes?
11 A. Yes, sir.
12 Q. So let's look, if we could, at USACE012909?
13 And up here at 5.04, it says, "The
14 inadequacy of government-owned land upstream of the
15 reservoir embankments to contain the water from the
16 standard project flood was recognized in the original
17 design of the reservoirs"; yes?
18 A. Correct.
19 Q. And I believe in response to the government
20 lawyer's questions, you said you thought that was
21 wrong.
22 A. In terms of what the standard project flood
23 was in the 1940s and '50s.
24 Q. Because you say that's that 15-inch 1935
25 storm; right?

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1 A. That's similar to what was identified in the

2 '55 regulation manual.
3 Q. As opposed to the Hearne storm, which had
4 about 30 inches; correct?
5 A. I think at this time in these reports they
6 were saying that the 1935, plus 50 percent was the
7 SPF, but that's what they're referring to when they
8 say SPF there.
9 Q. Irrespective, I think you're saying you
10 disagree with what is stated in this historical
11 document?
12 A. Right, based on the documents we looked at.
13 Q. Right.
14 And this is the one that was sent to the
15 public?
16 A. It was.
17 Q. And it says that it was considered at the
18 time to be a limited problem because the land's
19 primary use at that time was for agricultural
20 purposes, and any damages that might occur would be
21 infrequent and relatively minor; correct?
22 A. Correct.
23 Q. "Consequently, this land was not acquired by
24 the federal government"; yes?
25 A. Correct.

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1 Q. Big difference between submerging coastal

2 prairie and somebody's domicile or their home; yes?
3 A. Correct.
4 Q. Counsel showed you a newspaper article which
5 was marked as Defense Exhibit 71.
6 If we could see that, please, Matt.
7 It doesn't have a date on it; yes?
8 A. Correct.
9 Q. And it's got this map up here; right?
10 A. Correct.
11 Q. So the plan that's being discussed is to
12 lower the ends of the embankments; yes?
13 A. Correct.
14 Q. That would mean the pool would be smaller;
15 yes?
16 A. Correct.
17 Q. And it doesn't say anything on there about
18 government-owned land, does it?
19 A. It does show government-owned outlined with
20 the hash area.
21 Q. It doesn't say anything on there about
22 government-owned land, does it?
23 A. It does not show that label in the figure.
24 Q. And if you're going to lower the
25 embankments -- and let's say you're an engineer or

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1 somebody who really understands this stuff -- you

2 would expect those pools to be smaller; right?
3 A. Correct.
4 Q. So you really don't know if what's depicted
5 here is showing the pools that would result from as
6 is, or with plan 1 in effect with the ends of the
7 dams lowered, do you?
8 A. I don't remember if it says or not in the
9 article.
10 Q. Well, I'll tell you what. I'll let the
11 government's lawyer tackle that if I'm mistaken.
12 Let me turn your attention to
13 Plaintiffs' Exhibit 105, which I believe has been
14 admitted.
15 This is from March of 1986?
16 A. Correct.
17 Q. If you would, turn with me to USACE681861.
19 Q. So by '86, plan 5B has been approved; yes?
20 A. Correct.
21 Q. And it says at the bottom of 3.9, "On 14
22 March 1985, a news release by Galveston District
23 informed the public of the selected plan which could
24 be implemented for a permanent solution to resolving
25 the dam safety problem at Addicks and Barker dams";

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1 yes?
2 A. Correct.
3 Q. "The draft environmental assessment is the
4 public document to inform the public of the proposed
5 selected plan to ensure the safety of the dams"; yes?
6 A. Correct.
7 Q. And have you ever seen that 14 March '85
8 newspaper clipping?
9 A. I don't know.
10 Q. Is that one of the ones that Mr. Trahan kept
11 these many years?
12 A. I don't remember.
13 Q. Mr. Thomas, do you think those releases did a
14 good job of informing the public about dam safety and
15 the Corps' various activities?
16 A. I don't know.
17 Q. Well, you really have no idea, do you?
18 A. I do not know.
19 Q. The best evidence for that would be the
20 actual historical documents; correct?
21 A. I don't know that much about it either.
22 Q. Well, let's look at what's been marked for
23 identification as Plaintiffs' Exhibit 1338.
24 1338 is an April 12th, 1985, memo;
25 subject: Buffalo Bayou and Tributaries, Texas,

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1 Addicks and Barker dams, Dam Safety Assurance Design

2 Conference; correct?
3 A. Correct.
4 Q. And it's signed by Mr. Trahan; correct?
5 A. It has his initials on the right, it looks
6 like, somebody's initials.
7 Q. I'll direct your attention to the very bottom
8 right there. It's got his name right there.
9 A. Right.
10 Q. And that's the fellow you were talking to and
11 looking at those newspaper clippings with; right?
12 A. It is.
13 MR. EASTERBY: Okay. Your Honor, we move to
14 admit upstream or Plaintiffs' Exhibit 1338.
15 MR. SHAPIRO: Can I have a minute, your
16 Honor?
17 THE COURT: Yes.
21 in evidence.)
22 Q. BY MR. EASTERBY: Let's turn to USACE476211,
23 public involvement.
24 Please zoom that in, Matt.
25 "A news release on 14 March 1985 has

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1 received essentially no reaction from the public to

2 date"; correct?
3 A. Yes, sir.
4 Q. Would that indicate to you that the public
5 didn't seem to have much information or at least no
6 reaction to that news release about plan 5B?
7 MR. SHAPIRO: Objection; foundation,
8 speculation.
9 THE COURT: Sustained on the latter ground.
10 MR. EASTERBY: What was the latter ground?
11 THE COURT: Speculation.
12 MR. EASTERBY: Speculation.
13 Q. Well, you don't have any reason to dispute
14 what's written in this historical document authored
15 by Mr. Trahan, do you?
16 A. No, sir.
17 MR. EASTERBY: Your Honor, that's all I have.
18 I'll pass the witness.
20 Recross, which is actually of a friendly
21 witness, so it's as if it were redirect, Mr. Shapiro.
23 RECROSS-EXAMINATION
24 BY MR. SHAPIRO:
25 Q. Mr. Thomas, if you could please turn to

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3 Q. Yeah, 1644?
4 A. I have it.
5 Q. Mr. Thomas, you were asked a few questions
6 about this document. I just want to look at your
7 e-mail and have you explain what your intention was.
8 In your second paragraph there, which is
9 the third sentence, you state, "Your list, too"?
10 A. So during this period, there was a request
11 going around for potential federal projects for
12 supplemental funding to help reduce flood risk for
13 the whole State of Texas. And so I was replying back
14 to Edmond Russo and Colonel Zetterstrom, and they
15 already had a list, and so I was just adding to their
16 list of projects, most of which were ultimately
17 funded on some level.
18 Q. Who is Mr. Russo?
19 A. Dr. Russo is the district deputy engineer for
20 programs and project management. He's our lead
21 civilian who engages on getting new projects
22 essentially.
23 Q. So it sounds from your explanation that a
24 list of some sort was being compiled?
25 A. Correct.

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1 Q. And what was the purpose of that list?

2 A. To provide for our partners as they sought
3 federal funding to reduce flood risk.
4 Q. And then the next sentence is the one that
5 your attention was drawn to regarding purchasing
6 property. What was your intention by adding that to
7 this e-mail?
8 A. To encourage our partners to request funding
9 to reduce flood risk for the upstream areas of
10 Addicks and Barker.
11 Q. Was your suggestion here in this e-mail just
12 to add that as an alternative on the list?
13 A. Yes, and basically to do the whole study to
14 find the optimum way to reduce that flood risk, but I
15 termed it in terms of buying property.
16 Q. You were asked a few questions about the --
17 the rate of water that was going around the end of
18 Addicks dam to the north of Addicks dam. Do you
19 recall those questions?
20 A. Yes, sir.
21 Q. And is there a gauge in that location that
22 measures the amount of water that goes around the
23 northern end of Addicks?
24 A. No, sir.
25 Q. And so how does one make an assessment of

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1 what the flow rate is?

2 A. So we had some modeling done at the time, and
3 it had an estimate in there, and then we had visual
4 observations, so it's not a very accurate estimate.
5 I don't think we were able to measure it.
6 Q. And have you seen sort of a range of possible
7 flow rates?
8 A. I have seen a range of flow rates discussed.
9 Q. The amount -- whatever that amount was,
10 whatever that flow rate was, was that the reason that
11 the induced surcharge releases were made?
12 A. No, sir.
13 Q. Whatever that flow rate was, did that have
14 any impact on reservoir operations during Hurricane
15 Harvey?
16 A. No, sir.
17 Q. And whatever that flow rate was, did it have
18 any impact on the size of the flood pools that you
19 were measuring at Addicks or Barker?
20 A. I don't think so.
21 Q. If we could turn, please, while we're in this
22 same binder here, to PX1658.
25 Honor.

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2 Q. BY MR. SHAPIRO: You were asked several
3 questions about this document, but only about the
4 first two options. Do you recall those questions?
5 A. Yes, sir.
6 Q. Was there also a third option?
7 A. Yes, sir.
8 Q. And what was that, if you turn to the second
9 page?
11 Sorry for the interruption.
12 Please proceed, Mr. Shapiro.
13 Q. BY MR. SHAPIRO: On the second page, there is
14 a third option suggested there.
15 A. Yes, sir, talking about essentially releasing
16 more water out of one or both reservoirs.
17 Q. And what was your response -- back to the
18 first page -- with respect to that option?
19 A. It was long, but essentially it was that is a
20 way to make more space, but we would have to violate
21 the Water Control Manual to do it, and then we talked
22 more in detail.
23 Q. And you also say in that second sentence
24 underneath point three, "If we do this, we may flood
25 downstream."

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1 A. Yes, sir.
2 Q. "And violate the Water Control Manual."
3 A. Yes, sir.
4 Q. Are you familiar with the term zero-sum game?
5 A. Yes, sir.
6 Q. Is this an example of that?
7 A. It is.
8 Q. How so?
9 A. In this case, because everybody was already
10 flooding, it was either flood more downstream and
11 less upstream, or flood more upstream and less
12 downstream, depending on how we balanced the water in
13 the case that there would have been more capacity
14 available to release.
15 Q. And when Hurricane Harvey struck, did
16 you -- did the Corps have any other option to avoid
17 that situation?
18 A. I don't think so.
19 Q. I want to turn, please, to Plaintiffs'
20 Exhibit 707.
22 Q. And if we turn, please, to the page ending
23 497, you were asked several questions which was
24 asking -- several of which asked you whether perhaps
25 the Corps had miscalculated the standard project

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1 flood back in the 1930s. Do you recall those

2 questions?
3 A. Yes, sir.
4 MR. EASTERBY: Your Honor, I believe that
5 misstates the prior testimony and prior questions. I
6 object on that basis.
7 THE COURT: The objection is sustained, but
8 the introduction of a topic is not, if that makes any
9 sense.
11 Q. Do you recall answering questions from
12 Mr. Easterby on this page?
13 A. Yes, sir.
14 Q. And did those questions pertain to the
15 original estimate or calculation of the standard
16 project flood?
17 A. Yes, sir.
18 Q. And just to remind us, was a standard project
19 flood -- was that even a term of art when these
20 projects were designed?
21 A. It was not included in the 1940 design
22 documents.
23 Q. And why is that?
24 A. I don't know that they were using it in the
25 industry or not.

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1 Q. Okay. But if -- do you think that the Corps

2 used the wrong storm when it was determining the --
3 when it was designing these reservoirs?
4 A. No, sir.
5 Q. And you seem to be disagreeing with
6 Mr. Easterby's suggestion that the Corps should have
7 used a different storm when calculating the
8 equivalent of a standard project flood.
9 A. Okay.
10 Q. Do you think the Corps' analysis back in the
11 '30s was incorrect?
12 A. I don't have any reason to think it was
13 incorrect.
14 Q. And do you think the storm it used, the 1935
15 storm, was the storm that would fit the definition
16 here of the standard project flood?
17 A. I think that was a reasonable determination
18 by the district back then.
19 Q. You were focusing on the reasonably
20 characteristic language. What does that mean to you
21 in terms of the standard project flood determination?
22 A. They're looking for a storm that's large, but
23 not the worst ever, because if they designed for the
24 worst ever, they wouldn't be able to afford all the
25 projects; right? So a lot of these projects are

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1 built for a bad storm, but not the worst ever, and
2 we design against the worst ever to help avoid these
3 catastrophes that might occur because of the project.
4 Q. And what catastrophe might happen here if the
5 Corps built the dam too small?
6 A. If the Corps designed them not to survive
7 that larger storm and a larger storm occurred, it's
8 possible that they could have filled all the way up
9 and catastrophically failed and that would have been
10 much worse than having the project alone.
11 Q. If I can ask you to turn, to, please, DX71.
13 Q. Your attention was drawn to the picture
14 there. Can you -- if you look underneath that
15 picture, do you see sort of a description of what the
16 shaded area is intended to depict?
17 A. Yes, sir.
18 Q. What does it say?
19 A. "The shaded portions of map indicate areas
20 that would be affected by overflow from Addicks and
21 Barker reservoirs in an extreme storm such as the one
22 which struck in the Alvin area in 1979."
23 Q. And there was some question about whether
24 what is depicted here is with plan 1 in place or
25 without plan 1 in place. Do you recall that

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1 question?
2 A. Yes, sir.
3 Q. If it included -- which would be a bigger
4 footprint, with plan 1 or without plan 1?
5 A. Without, I believe.
6 Q. And that would be sort of the current status
7 of the reservoirs when this document was published?
8 A. Yes, sir.
9 Q. And why do you say that it would be a bigger
10 flood footprint without plan 1?
11 A. I -- because it would hold water back longer
12 before it started to spill.
13 Q. And --
14 A. I should clarify that: By bigger, I mean
15 bigger behind the reservoirs.
16 Q. Thank you.
17 If we turn, please, to PX20.
19 THE COURT: PX20?
21 THE WITNESS: I have it.
22 Q. BY MR. SHAPIRO: There were a few questions
23 you were asked about the 2016 storm.
24 A. Yes, sir.
25 Q. And your attention was drawn to the -- the

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1 causes for the -- the upstream structures that

2 were -- that were flooded.
3 A. Yes.
4 Q. And what does this document say about the
5 possible causes of that?
6 If I may approach, your Honor, I may be
7 able to direct the witness.
8 THE COURT: Yes.
9 THE WITNESS: Sorry about that. Second
10 paragraph from the bottom, "One cause of the upstream
11 flooding was restricted drainage from neighborhood
12 storm water management systems that drain into
13 Addicks reservoir. The restriction was due to the
14 elevated reservoir pools. A second cause was the
15 restriction/redirection of inflows on Langham Creek
16 by a local bridge. A third cause was the rainfall
17 runoff from neighboring Cypress Creek overflowing
18 into the Addicks watershed."
19 Q. Continue.
20 A. "Each of these impacts were due to runoff
21 draining into the Addicks reservoir as opposed to
22 rising waters from Addicks reservoir."
23 Q. And then if we turn to the second page,
24 please.

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1 Q. If we can zoom in on that.

2 Does it -- what does it discuss in terms
3 of next steps?
4 A. So first, SWG is coordinating with Harris
5 County Flood Control District to advance a Section
6 216, 3-by-3-by-3 feasibility study of the Addicks and
7 Barker reservoir dam system before identifying
8 recommendations for improved flood risk management
9 addressing the aforementioned concern.
10 Q. And just before you go on, you mentioned when
11 you were responding to some of Plaintiffs' counsel's
12 questions, you're not sure what analysis went into
13 this document; am I correct?
14 A. Yes, sir.
15 Q. And would you anticipate that a more fulsome
16 analysis was anticipated to be -- to take place at a
17 later date?
18 A. Oh, we are doing that now, sir.
19 Q. And has that analysis been completed?
20 A. Not yet, sir.
21 MR. SHAPIRO: Thank you, Mr. Thomas.
22 THE COURT: Mr. Shapiro, have you finished
23 examining Mr. Thomas on redirect or recross?
25 THE COURT: Mr. Thomas is the government

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1 representative.
2 May I excuse Mr. Thomas as a witness?
5 THE COURT: Mr. Thomas, you are excused.
6 You may stay in the courtroom or not, if
7 you wish.
8 Thank you for your interrupted testimony
9 over several days.
11 MS. WRIGHT: Your Honor, if I may, the
12 Plaintiffs call Elisio Soares.
13 THE COURT: And you are?
14 MS. WRIGHT: Lydia Wright for the Plaintiffs.
15 THE COURT: And you are?
16 MS. WRIGHT: Wright.
17 THE COURT: Like the weather, that had me
18 really confused.
19 THE WITNESS: Soares.
20 THE COURT: Mr. Soares, would you raise your
21 right hand to be sworn as a witness.
22 Mr. Soares, you swear in this trial that
23 the testimony you shall give shall be the truth, the
24 whole truth, and nothing but the truth, so help you
25 God?

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1 THE WITNESS: I do.

3 ELISIO SOARES,
4 called as a witness herein, having been first duly
5 sworn, was examined and testified as follows:
6 DIRECT EXAMINATION
7 BY MS. WRIGHT:
8 Q. Good afternoon, Mr. Soares.
9 A. Good afternoon.
10 Q. Mr. Soares, you are one of the test property
11 plaintiffs in this case; is that right?
12 A. Correct.
13 Q. What do you do for a living?
14 A. I'm sorry?
15 Q. What do you do for a living?
16 A. I'm a purchasing manager.
17 Q. For which company?
18 A. Petrobras.
19 Q. Do you hold any degrees?
20 A. Yes, I hold a bachelor's degree.
21 Q. From what university?
22 A. University of Phoenix.
23 Q. And where do you live, Mr. Soares?
24 A. I live in Katy at 20526 Indian Grove Lane.
25 Q. Is that in Harris County?

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1 A. Yes.
2 Q. And were you living on Indian Grove Lane
3 during Harvey?
4 A. Yes, I was.
5 Q. Was your property flooded during Harvey?
6 A. Yes, it did.
7 Q. Are you married, Mr. Soares?
8 A. Yes. My wife's name is Ana Soares.
9 Q. And do you have any children?
10 A. Yes, I have Susanna, who is a 27-year-old,
11 and Raphael, who is 23 years old.
12 Q. And about how long have you lived in the
13 Houston area?
14 A. Approximately 30 years.
15 Q. And where are you from originally?
16 A. Brazil.
17 Q. Let's talk about your home on Indian Grove
18 Lane. Do you own that property?
19 A. Yes, I do.
20 Q. Is it your primary residence?
21 A. Yes, it is.
22 Q. When did you purchase your home?
23 A. In 2001.
24 Q. About 17 years ago?
25 A. Yes.

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1 Q. Does my math add up?

2 At this point we'll hand you Joint
3 Exhibit 263.
4 You can see it on the screen as well.
5 Do you recognize this document?
6 A. Yes.
7 Q. What is this?
8 A. It's Deed of Trust.
9 Q. Is this the Deed of Trust for your home on
10 Indian Grove Lane?
11 A. Yes.
12 MS. WRIGHT: At this point we offer Joint
13 Exhibit 263.
16 Admitted.
18 evidence.)
19 Q. BY MS. WRIGHT: Mr. Soares, please describe
20 for the Court your property on Indian Grove Lane.
21 A. It is a single family home, four bedrooms,
22 two-and-a-half bath, and a swimming pool, and
23 landscaping, and in a cul-de-sac.
24 Q. Is it in a subdivision?
25 A. In a subdivision, Cinco Ranch Equestrian

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1 Village.
2 Q. Do you know whether Cinco Ranch Equestrian
3 Village is a deed-restricted community?
4 A. Yes, it is restricted to residential homes to
5 keep the property nice and safe.
6 MS. WRIGHT: At this point, we're going to
7 review some aerial imagery that was taken by the
8 National Oceanic and Atmospheric Association on
9 August 30th.
10 The parties have stipulated -- have
11 entered a stipulation of facts, that's number 116
12 with respect to the website where these images are
13 housed, and per the Court's -- per our understanding
14 of the Court's instructions at the pretrial
15 conference, I would tender -- this is Upstream
16 Exhibit 2036, which is the native placeholder for the
17 website, and I'll also furnish to the Court at this
18 time Upstream 2036-16, and Upstream 2036-17, which
19 are enlargements from that website.
20 If I may approach.
21 THE COURT: Yes.
22 MS. TARDIFF: Counsel, do you have copies for
23 us?
24 MS. WRIGHT: I do.
25 Q. Okay. Mr. Soares, looking at Upstream

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1 2036-16, do you recognize this image?

2 A. Yes, I've seen it before.
3 Q. Can you describe to the Court what we're
4 looking at here?
5 MS. TARDIFF: Your Honor, I just have a short
6 objection as to foundation in terms of the date of
7 the document and the witness' familiarity on that
8 date.
9 THE COURT: Yes, exactly.
10 Q. BY MS. WRIGHT: If you turn, please, to the
11 native placeholder, which is Upstream 2036. You will
12 see a website on that placeholder. It is the first
13 document in your packet.
14 Matt, could you please put on the
15 website?
16 Mr. Soares, have you ever visited this
17 website?
18 A. I'm sorry. One more time.
19 Q. Have you ever visited this website?
20 A. I'm sorry.
21 What's that?
22 Q. Have you ever visited this website?
23 A. Yes, yes.
24 Q. When was the most recent time that you
25 visited this website?

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1 A. I visit this website after Harvey.

2 MS. WRIGHT: And the parties have stipulated
3 that this is a website that is maintained by NOAA,
4 and the aerial imagery on this website is publicly
5 available on NOAA's web page, along with the
6 metadata.
7 And the parties have stipulated that the
8 imagery includes aerials for certain areas upstream
9 and downstream of Addicks and Barker Dam, taken on
10 August 30th, 2017.
11 And, your Honor, we will furnish the
12 Court with a thumb drive with the data from this
13 website, but for now, we'll only be discussing the
14 two blowups of Mr. Soares' property.
15 MS. TARDIFF: And your Honor, my objection
16 was not to the authenticity of the NOAA aerial
17 photographs, it was more the foundation with respect
18 to the witness and his familiarity with the condition
19 of the property on the date of the photo.
20 THE COURT: Let's just start at the
21 beginning.
22 This is as of 8-30-17; is that correct?
23 Would both parties agree with that?
24 This is an aerial -- essentially part of
25 an aerial video?

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1 MS. WRIGHT: Yes, this data was taken during

2 a NOAA flyover of the area on August 30th, 2017.
3 Your Honor, really, we would like to admit into
4 evidence Upstream 2036.
5 THE COURT: Ms. Tardiff, do you agree under
6 the stipulation that this is acceptable?
7 MS. TARDIFF: We certainly don't stipulate to
8 the authenticity of the document, and the NOAA
9 photograph, my objection was foundation with respect
10 to this witness and the date and whether he was on
11 his property on the date.
12 THE COURT: Well, we can find that out in due
13 course.
14 But let's first of all admit the video
15 through the thumb drive and the stipulation, so that
16 is done. PX2036 is admitted.
18 in evidence.)
19 MS. WRIGHT: Thank you.
20 And I'll also add, your Honor, to
21 Ms. Tardiff's point, that it's not relevant whether
22 the Plaintiff was on the property at this time or
23 not. This is a publicly available website.
24 THE COURT: Let's find out.
25 Q. BY MS. WRIGHT: Mr. Soares, turning to

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1 Upstream 2036-16, we just started talking about this.

2 What is this an image of, if you know?
3 A. I see my neighborhood filled with Harvey
4 floodwaters, and I could see my house where it says
5 Soares.
6 Q. And turning to Upstream 2036-17, what is this
7 an image of, if you know?
8 A. It is another aerial view of my house with
9 Harvey floodwaters on my street and on my property,
10 and also on my neighbors' property. It is similar to
11 the other image.
12 Q. And to your knowledge, is this an accurate --
13 are these accurate images of your home and your
14 neighborhood?
15 A. Yes.
16 MS. TARDIFF: The objection is to foundation
17 as to the date.
18 THE COURT: That objection is overruled.
19 I take it what you're really after,
20 Ms. Tardiff, is where Mr. Soares was on the relevant
21 date?
22 MS. TARDIFF: Yes, your Honor.
23 THE COURT: We can cover that in due course.
24 MS. WRIGHT: Your Honor, we move to admit
25 Upstream 2036-16 and Upstream 2036-17.

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1 THE COURT: And those are images taken from

2 the video; is that correct.
3 MS. WRIGHT: That's correct.
4 THE COURT: The NOAA video?
5 MS. WRIGHT: They were taken on August 30th,
6 2017, as part of the NOAA flyover.
9 (Plaintiffs' Exhibits 2036-16 and
10 2036-17 were received in evidence.)
11 Q. BY MS. WRIGHT: Mr. Soares, let's discuss
12 your home on Indian Grove Lane.
13 Why did you decide to make your home
14 there?
15 A. Because of the Katy, that region, Katy Cinco
16 Ranch, in a good area with a good school district and
17 very nice neighborhoods.
18 Q. And what was it about that particular house
19 that made you want to purchase it?
20 A. Okay. It was a new construction, like I
21 said, in a safe area, in a cul-de-sac, and in an area
22 that we liked.
23 Q. Did you expect your property value to
24 increase over time?
25 A. Yes, yes, we did, because in that school

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1 district, like I said, in that area, the properties

2 there are very good properties. Safe area, very good
3 schools, and with time, we expected that we would
4 stay in the home, pay it off, and possibly retire
5 there.
6 Q. When you bought your house in 2001, did you
7 know certain parts of Harris and Fort Bend County
8 flooded before?
9 A. Yes, I heard that in general low-lying areas
10 of the county had flooded, but my area, my property
11 had never flooded before.
12 Q. Were you concerned that your property might
13 flood?
14 A. No.
15 Q. Why not?
16 A. Because my closing documents didn't disclose
17 any flooding situation, plus we've been there 17
18 years and never seen any flooding on my property.
19 Q. Is your property located in a FEMA flood
20 zone?
21 A. No, it's not.
22 Q. How did you know that?
23 A. Because my closing documents said that it was
24 not in a flood zone.
25 Q. Before Harvey, had you ever seen storm water

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1 go above the curb in your neighborhood?

2 A. No.
3 Q. Have you ever carried flood insurance on your
4 property?
5 A. Yes, initially, in the first year we bought.
6 After Allison, I had flood insurance, but after one
7 year, I did not renew because we were not in a
8 floodplain.
9 Q. Is it accurate that you didn't think you
10 needed to carry flood insurance?
11 A. I'm sorry?
12 Q. Is it accurate that you didn't think that you
13 needed to carry flood insurance?
14 A. That's accurate, yes.
15 Q. Do you currently carry flood insurance on
16 your house at Indian Grove Lane?
17 A. Yes, now I have. Now I know that it can
18 flood again, yes.
19 Q. Are you aware that your home is within Barker
20 Reservoir?
21 A. Again.
22 Q. You're aware that your home is inside Barker
23 Reservoir?
24 A. No, no, if we were aware, we would not have
25 purchased that residence.

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1 Q. When did you first learn your home was inside

2 Barker Reservoir?
3 A. We learned after Harvey.
4 Q. When did you first learn that the government
5 would use your house to store storm water as part of
6 its operation of Barker Reservoir?
7 A. After Harvey.
8 Q. Before you purchased your property in 2001,
9 what did you know about Addicks and Barker?
10 A. Nothing.
11 Q. Had you ever seen a sign for Addicks and
12 Barker?
13 A. After I bought the home I did see signs, but
14 I didn't understand exactly what that referred to
15 exactly.
16 Q. Before you bought your house, did you know
17 that the reservoir extends beyond government-owned
18 land?
19 A. Say again?
20 Q. Before you bought your house, did you know
21 that the reservoir extends beyond government-owned
22 land?
23 A. That's the reason I heard that it was called
24 reservoir. Everybody referred to it as Bush Park, a
25 park with amenities.

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1 Q. So you thought you were living near a park?

2 A. Yes. We thought we were next to a park, not
3 a reservoir.
4 Q. Did the government ever ask your permission
5 to store storm water in your home?
6 A. No, not at all.
7 Q. Did the government ever take out a flooding
8 easement or flowage easement over your home?
9 A. No.
10 Q. Did you get any deals or a price reduction on
11 your home for its proximity to Barker Dam?
12 A. Nothing.
13 Q. Let's look at what has been previously marked
14 and admitted as Defendant’s Exhibit 139.
16 Q. Mr. Soares -- Mr. Soares, there's been
17 testimony in this case regarding the plat of Cinco
18 Ranch Equestrian Village, and that's the plat that
19 you're looking at now. Have you seen this before?
20 A. I saw this during my deposition.
21 Q. Was that the first time that you've seen this
22 plat?
23 A. Yes, the first time.
24 Q. And your deposition was in -- your deposition
25 in this lawsuit?

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1 A. In this case, yes.

2 Q. After Harvey?
3 A. After Harvey, yes.
4 Q. Did you receive a copy of this plat in your
5 closing documents when you bought your home?
6 A. No. No. No.
7 Q. On this plat in very small print -- I don't
8 know if you'll be able to read it.
9 Can you zoom in?
10 A. It's impossible.
11 Q. It is very small.
12 It says, "This subdivision is adjacent
13 to Barker Reservoir and is subject to extended
14 controlled inundation under the management of the
15 U.S. Army Corps of Engineers." Do you see that on
16 your plat?
17 THE COURT: I'm sure for Mr. Soares it's no.
19 Q. BY MS. WRIGHT: Take my word for it that it's
20 there.
21 Do you know what that means?
22 A. It says the subdivision is next to a
23 reservoir and is subject to control of the U.S.
24 government. I don't think that I'm next -- adjacent
25 to it.

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1 Q. Could you just repeat what you said so that

2 we get the full sentence on the record please? You
3 said you don't think you're adjacent?
4 A. Yeah, I don't think I'm adjacent or next to
5 it.
6 Q. You understand that your home is inside the
7 reservoir?
8 A. Yes.
9 Q. And when did you first come to that
10 understanding?
11 A. After Harvey.
12 Q. Where were you, Mr. Soares, when Harvey hit
13 Houston?
14 A. I was in New York City with my family.
15 Q. And what were you doing there?
16 A. We were traveling on vacation.
17 Q. Can you describe to the Court, please, how
18 you made it back to Katy?
19 A. Flights had all been canceled for several
20 days, so we flew to Austin, Texas, which was the
21 closest we could fly, and then we learned from our
22 neighbor that our subdivision was flooded. I rented
23 a car to drive to try to get to see my subdivision,
24 but I was advised that only it was acceptable to by
25 boat, so we stopped on the way and bought a kayak.

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1 Q. You bought a kayak on your way to Houston?

2 A. Yes.
3 Q. Were you able to drive up to your house when
4 you arrived here?
5 A. No, I wasn't.
6 Q. And apologies if you said this, but the date
7 you arrived at your house, do you recall what date
8 you arrived at your house?
9 A. The date -- for the first time I assessed my
10 home by boat was on August 31st.
11 Q. We're going to look now at some photos that
12 you took during this event. They are in the binder
13 in front of you, and I'll also display them on the
14 screen, if we could.
15 Mr. Soares, this has been marked Soares
16 Exhibit 7. Do you recognize this photograph?
17 A. I do.
18 Q. What is this an image of?
19 A. It's Harvey water on the street where the
20 people were getting into the boats.
21 Q. Did you take this photograph?
22 A. I don't remember if it was me or my wife.
23 Q. But that's your street?
24 A. Right.
25 Q. Is that your street?

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1 A. It's in the area. I don't think it's my

2 street.
3 THE COURT: Ms. --
4 MS. WRIGHT: Wright, yes.
5 THE COURT: Is this the identification that
6 the parties have proposed for photographs, in other
7 words the witness with a number?
8 MS. WRIGHT: I believe so, yes.
9 THE COURT: So we're talking about Soares 7?
10 MS. WRIGHT: Yes.
11 THE COURT: Ms. Tardiff, is that convention
12 acceptable?
13 MS. TARDIFF: In terms of the exhibit
14 numbering?
15 THE COURT: Yes.
16 MS. TARDIFF: I think that's the way
17 Plaintiffs have numbered theirs, so.
18 THE COURT: All right. We don't have an
19 exhibit number. We just have a name and a number.
20 MS. WRIGHT: Yes, your Honor.
21 The exhibit is actually marked with a
22 sticker that says Soares 7.
23 THE COURT: I understand.
24 MS. WRIGHT: We move to admit Soares 7.
25 MS. TARDIFF: Your Honor, the objection is,

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1 it's not clear about the place of the photograph yet.

2 THE COURT: Mr. Soares, Ms. Wright, could you
3 clarify, please?
4 Q. BY MS. WRIGHT: Could you please explain to
5 the Court exactly what we're looking at here?
6 A. Okay. This -- there was an area where they
7 were loading the boats near the school where we
8 parked, and I don't remember for sure if that's --
9 because I do see people there in the boats and the
10 water, and that's where the water was at the lower
11 level, which is where we -- people were getting into
12 the boats, so we were going back to the area where
13 they were loading the boats. People were getting
14 into the boats.
15 Q. Is this where you launched your kayak?
16 A. Yes, it was around that area. Near the
17 school.
18 MS. WRIGHT: We move to admit this exhibit
19 into the record.
20 MS. TARDIFF: Can we get the name of the
21 school, just so we have some kind of location marker
22 for where the photograph is?
23 THE COURT: Exactly. The relationship of the
24 school to Mr. Soares' home.
25 THE WITNESS: Okay. Yes.

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1 We parked our car on the McMeans Junior

2 High on West Highland Parkway. And from there I
3 launched the kayak.
4 MS. WRIGHT: We move to admit Soares 7 into
5 the record.
8 (Soares Exhibit 7 was received in
9 evidence.)
10 Q. BY MS. WRIGHT: Please tell the Court about
11 these two images, if you know. Describe --
12 MS. TARDIFF: I'm sorry. Is this still
13 Soares 7?
14 MS. WRIGHT: Excuse me. Thank you.
15 On the left we're looking at Soares 70,
16 Exhibit 70. And on the right, Soares Number 49.
17 Again, these are in your binder, and
18 they are on the screen.
19 THE COURT: So we're dealing with two
20 photographs, Soares 70 and Soares 49.
21 MS. WRIGHT: Yes, your Honor.
22 Q. Can you please describe to the Court what
23 these photographs depict if you know?
24 A. Okay. The photo on the left is my son
25 helping to launch the kayak where we parked the car

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1 at McMeans Junior High. We picked up the kayak, and

2 we were about to launch in that same area where
3 people were loading the boats. I sat in the kayak,
4 and he pushed me, and I started paddling towards my
5 house.
6 Q. And is that you wearing the white baseball
7 hat in both photos?
8 A. Pardon?
9 Q. Is that you wearing the white baseball hat in
10 both photos?
11 A. Yes, I am the one in the blue shirt and the
12 white cap, yes.
13 Q. And the photo on the right, where was that
14 taken?
15 A. Okay. That was my wife who came on the motor
16 boat. She's standing on the stoop of the house, and
17 I'm leaving to go back, so she took that picture of
18 me.
19 Q. So Exhibit 49 is a photograph of your house
20 and you kayaking away from your house?
21 A. Yes.
22 MS. WRIGHT: We move to admit Exhibits 70 and
23 49 into the record.
25 THE COURT: Soares 70 and Soares 49 are

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1 admitted.
2 (Soares Exhibit 70 and Soares Exhibit 49
4 Q. BY MS. WRIGHT: What did you observe when you
5 arrived to your property by kayak on August 31st?
6 A. Okay. Everything was soaked. The furniture
7 was soaked. It was a mess. The water from the kayak
8 had a strong smell, and it was sewage water. That
9 was the kind of smell.
10 We also found inside the house the
11 smell, mold, because the house had been closed for a
12 few days with that water inside, so I saw my
13 backyard. The pool was covered with this dirty water
14 as well.
15 Q. You said you smelled mold. Did you also
16 notice mold growing inside your house?
17 A. Yes, I did.
18 Q. Do you know the depth of storm water inside
19 your house?
20 A. My estimation is less than a foot. I didn't
21 measure exactly.
22 Q. Do you know about how long the storm water
23 was in your home?
24 A. I estimate four days.
25 Q. Please describe to the Court what this

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1 photograph -- which is Soares Exhibit 58. Please

2 describe what this photo is.
3 A. Yes, that's from the moment we started
4 gutting the house with assistance from volunteers.
5 We start to pile up everything on the curb for
6 pickup, and I see the insulation, drywall, wood from
7 the floor and some of our property also is there.
8 Q. Why did you have to remove insulation and
9 drywall?
10 A. Because everything was soaked and it
11 was -- we could see mold starting to grow, so we
12 wanted to get rid of it as soon as possible.
14 We move to admit Soares 58.
18 evidence.)
19 Q. BY MS. WRIGHT: Turning now to Soares Exhibit
20 64 and Soares Exhibit 63. Please describe to the
21 Court what these photos depict, if you know.
22 A. Okay. The photo on the right is our dining
23 room without insulation and without drywall, and very
24 wet studs, and we were -- and the other one on the
25 left is our entrance hallway, and you can see through

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1 the garage and, again, without the drywall being

2 removed, the flooring being removed, the insulation,
3 and we're in the process of drying the wet studs and
4 floor.
5 Q. So did these images -- Exhibit 64 and Exhibit
6 63, these are inside your home?
7 A. Yes.
8 Q. And do you know when these were taken?
9 A. When?
10 Q. Yes.
11 A. When? When we started gutting was early
12 September. It was around September. I'd say
13 September 5th. That sounds right, when we finished
14 gutting and started drying was around the first week
15 of September.
16 Q. And what area of your home are these
17 photographs, Exhibit 64 and 63 depicting?
18 A. I'm sorry.
19 What now?
20 Q. What area or what room in your home are these
21 photographs depicting?
22 A. Okay. The one on the right is the dining
23 room, and the one on the left is the entrance
24 hallway. The door would be on the right when you
25 first enter the home.

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1 Q. So Exhibit 64 is the entranceway inside your

2 house, and Exhibit 63 is the dining room; is that
3 correct?
4 A. Yes.
5 MS. WRIGHT: We move to admit Soares 63 and
6 64.
9 (Soares Exhibit 63 and Soares Exhibit 64
11 Q. BY MS. WRIGHT: Mr. Soares, this is Exhibit
12 56, Soares 56. What does this photograph depict?
13 A. That's our living room after -- we're still
14 in the process of gutting the home. We had church
15 volunteers come help us, and they offered free help,
16 because we couldn't do all of this major work
17 ourselves, and we didn't know how to do it properly,
18 so we were able to get helpers to come and assist us.
19 Q. Do you know why they are wearing masks on
20 their faces?
21 A. Again.
22 Q. Do you know why the workers in this
23 photograph are wearing masks on their faces?
24 A. Yes, because the air inside was dusty and
25 moldy.

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1 Q. Were you able to salvage any furniture from

2 the first floor of your home?
3 A. Everything we had had to be put out. It was
4 touched by this water, contaminated by dirty water.
5 There was bacteria that FEMA put out on the list was
6 fleshing-eating bacteria, so we were concerned. No,
7 we did not want to be exposed to that.
8 MS. WRIGHT: We move to admit Soares Exhibit
9 56.
13 evidence.)
14 Q. BY MS. WRIGHT: Let's discuss Soares Exhibit
15 54. What is this photograph of, if you know?
16 A. Things, furniture and other belongings that
17 we have to get rid of because of the contaminated
18 dirty flood water.
19 Q. These are the -- this is furniture from
20 inside your home?
21 A. Yes. Yes. We moved the living room
22 furniture there. Most of that is living room
23 furniture that we put on the curb as well, because it
24 had been soaked by that water.
25 MS. WRIGHT: We move to admit Soares Exhibit

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1 54.
5 evidence.)
6 Q. BY MS. WRIGHT: Soares Exhibit 59, do you
7 recognize this photograph?
8 A. Yes. It's a washer and dryer we had to move
9 out, and when we start moving, they were very heavy,
10 and we could see that there was flood water inside
11 them.
12 Q. There was flood water inside your washer and
13 dryer?
14 A. Yes.
15 Q. Did the storm water damage any of your other
16 appliances?
17 A. Yes. The same thing with the refrigerator.
18 We had to put it out. Stove. Dishwasher. Freezer.
19 We had a freezer in the kitchen, same thing. So we
20 had -- all those we had to get rid of. They're gone.
21 Q. Did the storm water damage any of your other
22 personal property?
23 A. Yes, everything that was inside the home on
24 the first floor and the garage, everything, even
25 things like family mementos, pictures from my

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1 childhood, my wife's childhood, everything that came

2 in contact with that water, fishing gear, all sorts
3 of stuff that we had in the garage, everything had to
4 go.
5 Q. Were you able to replace what was damaged?
6 A. No, they are gone forever.
7 Q. Mr. Soares, where did you stay when you
8 returned to Houston -- excuse me. I'm sorry.
9 MS. WRIGHT: We move to admit Soares 59.
10 THE WITNESS: Yes, we stayed with friends.
11 MS. WRIGHT: I'm sorry.
12 One moment.
16 evidence.)
17 Q. BY MS. WRIGHT: Go ahead, Mr. Soares.
18 Where did you stay when you returned to
19 Houston on August 31st?
20 A. We stayed with friends in a downstream area
21 of the reservoir. We stayed for two weeks.
22 Q. And what did you do after those two weeks?
23 A. We moved into the second story of the home.
24 We improvised there a living area with a camping
25 style kitchen.

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1 Q. Who lived with you on the second floor of

2 your home?
3 A. My wife and my two children.
4 Q. What was that experience like?
5 A. It was difficult. We couldn't cook properly,
6 so we gave up on cooking and started to buy pizza.
7 We ate a lot of pizza. Everything is expensive, you
8 know. We have a family of four, and you start eating
9 out a lot, so it was difficult. A lot of people in a
10 small area, it was stressful.
11 Q. How long did you live on the second floor
12 with your family?
13 A. From the time we moved into the house -- I
14 think it was mid-September -- until mid to late
15 January when they basically finished renovating the
16 kitchen and master bathroom and bedroom downstairs.
17 Q. And at that point you were able to use the
18 first floor as well?
19 A. Yes, we could start living on the first
20 floor, although the home was not completed.
21 Q. When was the property back to its pre-Harvey
22 condition?
23 A. Around May 2018.
24 Q. This may sound like an odd question, but were
25 you able to use and enjoy your house in the normal

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1 and customary manner during and after Harvey?

2 A. No, we were not. First floor was
3 uninhabitable. The pool in the backyard was
4 unusable.
5 Q. And today, are you able to use and enjoy your
6 home in the normal and customary manner?
7 A. Yes, but we always have this fear that this
8 can happen any time again, and we can lose everything
9 again, and we can't go through this same ordeal
10 again.
11 Q. Mr. Soares, you're making a claim under the
12 Fifth Amendment takings clause.
13 What do you understand that to mean?
14 A. The Fifth Amendment, what I understand to
15 mean?
16 Q. The takings clause.
17 A. What I understand -- to me, is if the
18 government takes something from me, I would get
19 compensated for it, and I think we lost a lot in this
20 case.
21 Q. What specifically did the government take
22 from you after Harvey?
23 A. What?
24 Q. What did the government take from you during
25 Harvey?

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1 A. Okay. It took our home. We couldn't use it

2 for months. It took our personal property, our --
3 our things that our family values that are gone
4 forever, and ultimately our peace of mind that this
5 home can -- we can go through it again, all this, in
6 a moment, and that is a lot for us.
7 Q. If you knew in 2001 what you know today,
8 would you still have decided to make your home on
9 Indian Grove Lane?
10 A. Definitely not.
11 Q. Why not?
12 A. Because we couldn't imagine living in a house
13 that we knew was going to flood in time.
14 MS. WRIGHT: Thank you very much.
15 I'll pass the witness.
16 Well, actually before I do that, can we
17 just confirm that Upstream 2036-16 and 17 were
18 admitted?
19 THE COURT: Yes.
21 THE COURT: Ms. Tardiff.
23 BY MS. TARDIFF:
24 Q. Good afternoon, Mr. Soares.
25 A. Good afternoon.

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1 MS. TARDIFF: Your Honor, before I begin to

2 ask Mr. Soares a few follow-up questions, we do want
3 to point out for the record that the parties' joint
4 stipulations of fact, which is ECF document 211, does
5 have a number of stipulations of fact as to
6 Mr. Soares. They are on page 8 of that document,
7 paragraphs 50 to 55. We'll just pull that up so you
8 can take a quick look.
9 Q. So Mr. Soares, I just want to ask a few
10 follow-up questions just about the location of your
11 property.
12 We did have an opportunity to visit the
13 property with the Judge yesterday, so thank you for
14 that. The road that runs behind your property, is
15 that Westheimer Parkway?
16 A. Yes.
17 Q. And let's look at a few maps just again to
18 give us our location.
19 We're going to turn first to Defendant’s
20 842, and we'll pull that right up on the screen for
21 you, sir.
22 And so Mr. Soares, you had pointed out
23 the location of your property on an aerial photograph
24 before. Does this map show the location of your
25 property on Indian Grove Lane in Katy?

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1 A. Yes, it is.
2 MS. TARDIFF: Your Honor, we move Defendant’s
3 842.
4 MS. WRIGHT: No objection.
7 evidence.)
8 Q. BY MS. TARDIFF: We're going to look at 841
9 just one back in the notebook. It's also on the
10 screen.
11 And, sir, does this map, which has an
12 aerial image, also accurately show the location of
13 your property on Indian Grove Lane?
14 A. I think so, yeah.
15 MS. TARDIFF: We would move to admit
16 Defendant’s 841.
20 evidence.)
21 Q. BY MS. TARDIFF: Mr. Soares, you identified
22 the deed by which you bought your property, which is
23 Joint Exhibit 263, so we'll pull that back up.
24 And we're going to turn first to the
25 page number at the bottom, which is Soares page 21 in

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1 the right-hand corner, and we'll pull that up on the

2 screen for you, sir.
3 And in the center, under -- there's a
4 heading, "transfer of rights in the property."
5 And at the bottom of what we've
6 enlarged, it says "legal description attached hereto
7 and made part hereof." Do you see that language?
8 Did I read that correctly, Mr. Soares?
9 A. Yes.
10 Q. And we're going to turn next to page Soares
11 34, which is towards the back, and, again, we'll pull
12 this up on the screen.
13 And Mr. Soares, are those the signatures
14 of you and your wife on this page on the deed?
15 A. Yes.
16 Q. Thank you, sir.
17 And then we're going to turn to page 36,
18 Soares 36, in the same document.
19 And we had previously seen an indication
20 in the deed that the legal description was attached
21 to the deed. On this page it reads as a legal
22 description, "Lot 7, in block 1, of Cinco Ranch
23 Equestrian Village, section 3, a subdivision
24 according to the map or plat thereof recorded in
25 slide number 1919-A of the plat records of Fort Bend

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1 County, Texas, and filed under the clerk's file

2 number U-10331 at film code number 431025 of the map
3 records, Harris County, Texas."
4 Did I read that correctly, sir?
5 A. Yes.
6 Q. Mr. Soares, after you learned your property
7 had flooded, did you apply to FEMA for disaster
8 assistance?
9 A. What was that?
10 Q. Did you apply to FEMA, the Federal Emergency
11 Management Agency, for assistance?
12 A. Yes, after Harvey.
13 MS. WRIGHT: Your Honor, I'm going to object
14 on relevance grounds. This is the liability phase of
15 the trial, so whether -- how Mr. Soares did or did
16 not finance the repairs of his house is not relevant.
17 THE COURT: Ms. Tardiff.
18 MS. TARDIFF: Your Honor, this issue goes to
19 severity under Arkansas Game and Fish.
20 THE COURT: I'll allow limited questions,
21 only the subject.
22 MS. TARDIFF: Very well, your Honor.
23 We're going to turn to Defendant’s 705R.
24 And for the record, your Honor, there is
25 some exhibits with an R notation, which means that

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1 privileged or Privacy Act information has been

2 redacted from the copy in your records.
3 Q. Mr. Soares, I'm going to have you turn to the
4 second page of this document, so if you turn -- flip
5 it over -- there you go.
6 The picture at the bottom, FEMA
7 005939 -- and Mr. Soares, do you recognize this as a
8 copy of your application for disaster assistance from
9 FEMA or with FEMA?
10 A. It looks like it.
11 Q. And up at the top, item number 6 indicates
12 the application date of August 30th, 2017; is that
13 correct?
14 A. I'm sorry. Where is that?
15 Q. I'm up at the top, and we highlighted it on
16 the screen.
17 A. Yes, that's correct.
18 Q. So August 30th, 2017, is the application
19 date; correct?
20 A. Correct.
21 Q. And if I recall your testimony earlier, is
22 August 30th the date that you also returned to
23 Houston from New York City and then Austin?
24 A. Uh-huh.
25 Q. Okay. So were you able to apply online? Or

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1 did you go into a disaster assistance center?

2 A. I applied online.
3 MS. TARDIFF: You Honor, we would move to
4 admit DX705-R. I would note on the cover we do have
5 a certificate of authenticity from FEMA that these
6 are the business records associated with the
7 application. I don't intend to ask Mr. Soares about
8 the entirety of this, just a few documents that he
9 would be familiar with.
10 MS. WRIGHT: And we would object for the
11 reasons previously stated that this is the liability
12 phase of the trial, and so these documents are not
13 relevant.
14 THE COURT: Let me just clarify with
15 Ms. Tardiff. You're asking to admit how much of
16 DX705-R?
17 MS. TARDIFF: Well, we have another witness
18 next week who will cover some additional information
19 on this with Mr. Soares.
20 THE COURT: With Mr. Soares? You said with
21 Mr. Soares?
22 MS. TARDIFF: The portion I look to discuss
23 with Mr. Soares would be from the cover through FEMA
24 5955. That's the portion he would be familiar with.
25 THE COURT: One thing we're going to do is

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1 not going -- one thing we're not going to do is go

2 into detail on these, or we'll take forever at trial.
3 MS. TARDIFF: And I just have a couple of
4 quick questions.
5 THE COURT: All right. How long is the
6 document itself?
7 MS. TARDIFF: Oh, and the portion I'm -- I
8 think there's just a couple of letters in here that I
9 had a few questions on.
10 THE COURT: Ms. Wright.
11 MS. WRIGHT: We maintain our objection that
12 this document is not relevant.
13 THE COURT: I'm going to allow it. I'm going
14 to admit it, but we'll have a limitation on the time.
15 (Defendant’s Exhibit 705-R was received
16 in evidence.)
17 Q. BY MS. TARDIFF: Mr. Soares, after you filed
18 this application with FEMA, did you receive some FEMA
19 disaster assistance?
20 A. Yes, I did.
21 Q. And I'm going to have you turn to FEMA 5949,
22 and we'll pull that up on the screen as well.
23 This letter dated August 30th, 2017, the
24 same date of your application, indicates that you're
25 eligible for $500 in critical needs assistance. And

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1 Mr. Soares, did you receive that payment?

2 A. Yes, I did.
3 MS. WRIGHT: Your Honor, again we object to
4 this line of questioning. Receipt of a check from
5 FEMA does not go to severity of the interference.
6 THE COURT: On the other hand, the fact that
7 Mr. Soares was approved by FEMA is important. The
8 amount of check and the date of the check is not.
9 It's irrelevant.
10 MS. TARDIFF: And, your Honor, the date and
11 the amount -- I actually disagree that the amount is
12 not relevant when we talk about the severity of
13 interference.
14 THE COURT: You really have to work to
15 convince me that a check for $500 is relevant.
16 MS. TARDIFF: There is more than $500, your
17 Honor.
18 THE COURT: There might be, but let's get at
19 it concisely and crisply and adeptly.
20 Q. BY MS. TARDIFF: Mr. Soares, I'm going to
21 have you turn to the next page in that document
22 beginning on FEMA 5952.
23 Mr. Soares, the letter indicates you
24 were found eligible for a total of $12,592.35 in
25 disaster assistance. That's broken down in a couple

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1 categories. Sir, did you receive that?

2 A. Yes, I did.
3 MS. TARDIFF: Thank you.
4 MS. WRIGHT: Your Honor, I don't know if I
5 should stay on my feet throughout this line of
6 questioning.
7 THE COURT: Please don't. We'll take this
8 question, but we're not going to take many more.
10 MS. TARDIFF: I think I have questions on
11 just one more part of this, your Honor.
12 I may not even need the document. I am
13 going to go back to one more.
14 Q. On the initial application, sir, which is the
15 second page of the document, FEMA 5939, and if we
16 could enlarge the box number 25 at the bottom, and
17 Mr. Soares, in this box, there's a listing of other
18 sources for disaster aid that you were referred to.
19 Do you see that there?
20 A. Yes.
21 Q. And the last of those items was tax
22 assistance. Do you see that?
23 A. Yes.
24 Q. And Mr. Soares, did you see that tax
25 assistance and take a tax deduction for uninsured

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1 disaster losses to your home or personal property

2 from Harvey?
3 THE COURT: Ms. Wright.
4 MS. WRIGHT: Objection, your Honor. It's the
5 same objection: This is not relevant to the
6 liability phase.
7 THE COURT: I'll allow one question on the
8 subject, Ms. Tardiff.
9 You may answer, Mr. Soares.
10 THE WITNESS: Can you repeat the question?
11 Q. BY MS. TARDIFF: Sure.
12 There was a referral here for tax
13 assistance, and my question, sir, and I think we
14 talked about this at your deposition, did you take a
15 tax deduction related to Harvey for uninsured
16 disaster-caused losses to either your home or
17 personal property?
18 A. You mean during tax time?
19 Q. Yes.
20 A. Yes.
22 And Mr. Soares, you said you bought your
23 home as new construction in 2001; correct?
24 A. Yes.
25 Q. And that was at a time, at least to my

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1 recollection, it was before we all had smartphones

2 with maps on them; is that right?
3 A. (Witness nods.)
4 Q. And did you use in Houston -- I've seen the
5 Key Maps that people use to actually find streets in
6 all these subdivisions. Are you familiar with Key
7 Maps?
8 Are you familiar with the Key Maps?
9 A. Key Maps? The book, you mean?
10 Q. Yes.
11 A. Yeah, I haven't seen one of those in a book.
12 Q. But before -- before we had phones with maps,
13 is that what you used to find streets in Houston?
14 A. (No audible response.)
15 Q. I'm going to have us turn to Defendant’s
16 Exhibit 795.
17 We've got the cover sheet there, and I'm
18 just going to have you turn to the next page. There
19 is not a page number on it, but at the top it says,
20 "Key Map, Houston-Harris County Atlas." And is this
21 the 2002, 43rd edition?
22 A. Yes.
23 MS. WRIGHT: I'm sorry, your Honor. I don't
24 think the foundation has been established that the
25 witness has actually seen this.

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1 THE COURT: Well, it has for the point that

2 this is relevant. So the Court will overrule the
3 objection.
4 Q. BY MS. TARDIFF: We're going to turn to page
5 486 of the key map and, actually, we'll pull up 486
6 and 487 at the same time, and we'll put them side by
7 side since they match up.
8 I think that's fine.
9 So, Mr. Soares, you've identified your
10 property on a couple of maps for us. On this one,
11 I'm going to have us scroll down to the bottom half.
12 It's going to be boxes S through Z. There we go.
13 So, on the left-hand side, if we can focus in on the
14 bottom third of that map.
15 And we'll -- Mr. Soares, we'll blow it
16 up on the screen here to make it a little easier to
17 read.
18 There we go.
19 And Mr. Soares, you have indicated that
20 Westheimer Parkway is the road that runs behind your
21 house; right?
22 A. Correct.
23 Q. And on this map, the street marked Indian
24 GRV. Do you see that? Do you see that on the map?
25 A. Yes.

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1 Q. And based on the other street names around

2 that, is that Indian Grove Lane where your home is?
3 A. Yes.
4 Q. And to the --
5 THE COURT: Where is this on the map?
6 Mr. Soares might be able to see it, but
7 I don't.
8 MS. TARDIFF: We can blow it up a little
9 more. Let's blow up box T there. There we go.
10 That's a little better.
11 Q. So the yellow, the double yellow line there
12 with the red running through it, that's Westheimer
13 Parkway; is that correct?
14 A. Yes.
15 Q. And below that. You see Indian GRV, and
16 that's Indian Grove, and Mr. Soares, you live at the
17 end of that cul-de-sac at the end of Indian Grove
18 Lane; is that correct?
19 A. Correct.
20 Q. And if we -- if we scan back out, let's
21 capture P, Q, T, and U, that four-block set. The map
22 to the left, I'm sorry. Page 486.
23 And Mr. Soares, can you see the language
24 under Q that starts with "Barker Reservoir"? It
25 says, "Barker Reservoir Flood Control Pool Elevation

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1 107"?
2 A. Yes, I see that.
4 MS. TARDIFF: Your Honor, I have no further
5 questions.
6 We would move to admit Defendants 795
7 though.
8 MS. WRIGHT: Your Honor, clarifying question.
10 You may ask a clarifying question on
11 redirect, but let's sort through what to do with
12 DX795.
13 MS. WRIGHT: The -- it has not been
14 established that the witness has seen this or saw it
15 before he purchased his home.
16 THE COURT: Well, he said he was familiar
17 with it. That's enough.
18 THE WITNESS: I've never seen this.
19 THE COURT: The rest you may cover on
20 redirect.
22 THE COURT: Okay. Admitted.
24 evidence.)
25 MS. TARDIFF: Thank you, your Honor.

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1 THE COURT: Redirect, Ms. Wright.

2 MS. WRIGHT: Matt, if you could please put
3 that same image up, that's Defendant’s Exhibit 795,
4 page 487.
6 BY MS. WRIGHT:
7 Q. Mr. Soares, did you look -- did you see this
8 map at any point before you bought your home in 2001?
9 A. No, I didn't.
11 That's it.
12 We're finished.
13 THE COURT: Ms. Wright, do you have anything
14 further?
15 MS. WRIGHT: Nothing further.
16 Thank you.
17 THE COURT: May I excuse Mr. Soares?
18 MS. WRIGHT: Yes, sir.
19 THE COURT: All right. Mr. Soares, you are
20 excused. Thank you for coming, and thank you for
21 testifying this afternoon.
22 Since it's about 5:15, where do we go
23 from here, Mr. Charest?
24 MR. CHAREST: Our next witness will be
25 Catherine Popovici.

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1 THE COURT: Say again.

2 MR. CHAREST: My next witness is Catherine
3 Popovici.
4 We're happy to hear her or start her and
5 finish tomorrow.
6 THE COURT: Let's start tomorrow. We're
7 closing up.
8 Is that satisfactory, Mr. Shapiro?
10 THE COURT: All right. We'll do that.
11 Thank you.
12 We're in recess for the evening.
13 We'll reconvene at 9:00 in the morning.
15 recess.
16 (The proceedings adjourned at 5:13 p.m.)
17
18
19
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22
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24
25

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1 C E R T I F I C A T E
2
3 I, DAVID M. LEE, do hereby certify that
4 the foregoing pages constitute a full, true, and
5 accurate transcript of the proceedings had in the
6 foregoing matter, all done to the best of my skill
7 and ability.
8 WITNESS my hand this 10th day of May
9 2019.
10
11 s/David M. Lee
12 DAVID M. LEE, RMR, CRR
13
14
15
16
17
18
19
20
21
22
23
24
25

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1 ADMITTED EXHIBITS
2
3 JX PAGE DESCRIPTION
4 4 857 2/7/1940 Memorandum from Lt. Col.
5 regarding Taking Line, Barker
6 Reservoir
7 9 857 2/24/1942 Memorandum from Berrigan
8 regarding Taking Line, Barker
9 Reservoir
10 10 857 3/13/1942 Memorandum from O'Brien
11 approving Taking Line, Barker
12 Reservoir
13 28 896 2/17/1983 Report on Proposed
14 Improvements to Mason Creek, Barker
15 Reservoir, prepared by Harris County
16 Flood Control District
17 33 877 10/1/1984 Environmental Assessment of
18 Proposed Willow Fork Diversion
19 Channel and Rechannelization of
20 Willow Fork within Barker Reservoir
21 35 908 7/30/1985 Memorandum from Armstrong
22 regarding Final Environmental
23 Assessment for Langham and Horsepen
24 Creeks
25

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1 98 823 9/1/2010 AECOM Boundary Survey -

2 Addicks
3 99 823 9/1/2010 AECOM Boundary Survey -
4 Barker
5 101 824 9/30/2010 Addicks Reservoir Metes and
6 Bounds Description
7 102 824 9/30/2010 Barker Reservoir Metes and
8 Bounds Description
9 128 977 5/11/2016 Report of Performance, New
10 Pool of Record for Addicks and Barker
11 Dams
12 134 979 6/1/2017 US Army Corps of Engineers
13 FY 2016 Annual Water Control Report
14 263 1068 Deed
15
16 PX PAGE DESCRIPTION
17 20 1040 Narrative of non-breach flood risks
18 56 825 05/01/98 Engineer Regulations
19 405-1-12 - Real Estate Roles and
20 Responsibilities for Civil Works
21 74 835 03/21/42 Report of Gross Appraisal
22 84 833 02/03/69 Review of Policies and
23 Practices for Acquiring Land for
24 Reservoir Projects
25

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1115
Trial
1 707 1025 3/1/1965 EM 1110-2-1411 Standard

2 Project Flood Determination
3 1338 1052 3/29/1985 Dam Safety Design
4 Conference
5 1406 847 6/30/1992 Special Report of Flooding
6 1644 1014 8/30/2017 Thomas email re Surcharge
7 Corridor
8 1658 1044 8/26/2017 Thomas email re Addicks
9 Barker
10 1904 812 5/5/1986 Fort Bend Drainage Easement
11 for Willow Fork
12 2036 1072 DOJ Intial Disclosures (1-30-2018),
13 https://storms.ngs.noaa.gov/storms/ha
14 rvey/index.html#10/29.6797/-95.4540
15 2036-16 1074 Images from DOJ Intial Disclosures
16 (1-30-2018), https://storms.ngs.noaa.
17 gov/storms/harvey/index.html#10/
18 29.6797/-95.4540
19 2036-17 1074 Images from DOJ Intial Disclosures
20 (1-30-2018), https://storms.ngs.noaa.
21 gov/storms/harvey/index.html#10/
22 29.6797/-95.4540
23 3000 1036 Guidelines for property owners
24 adjacent to public land
25

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1116
Trial
1 DX PAGE DESCRIPTION
2 45 903 06/07/1973 Recorded Harris County
3 Commissioners' Approval of Bear Creek
4 Subdivision Drainage Easement
5 50 887 07/01/1976 Recorded Drainage Ditch
6 Easement for Tributary 52.9 to
7 Buffalo Bayou
8 64 904 7/31/1979 Letter from Schenke (Vinson
9 & Elkins) to Cooper (USACE) re HCFCD
10 intent to maintain drainage ditch in
11 easement
12 84 894 06/04/1984 Recorded Drainage Easement
13 for Mason Creek
14 86 882 12/1/1984 Topographical map of Willow
15 Fork Alignment
16 94 873 06/02/1986 Recorded Easement for
17 Right of Way for Willow Fork
18 Diversion Channel
20 Right of Way for Willow Fork
22 149 901 2/8/2000 Comments and EA related to
23 Bear Creek Bypass Channel
24 152 900 3/14/2000 FONSI for Bear Creek

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1117
Trial

2 Right of Way for Bear Creek Bypass
3 Channel
4 255 973 May 2013 Appendix 11 of USACE's Dam
5 Safety Modification Report,
6 "Engineering Analyses and
7 Determination of Compliance with
8 Essential USACE Guidelines"
9 649 989 Predecisional Hurricane Harvey
10 Timeline
11 705R 1102 FEMA Disaster Assistance Records for
12 Elisio Soares, with Certificate of
13 Authenticity (Redacted)
14 795 1109 Key Map - Houston, Harris County
15 Atlas, 2002, 43rd Edition
16 800 867 Map displaying easements for Addicks
17 Reservoir
18 801 867 Map displaying easements for Barker
19 Reservoir
20 841 1097 Map - Overhead aerial view of Soares
21 property location
22 842 1097 Map - Streetmap view of Soares
23 property location
24
25

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1118
Trial
1 895 940 Addicks and Barker Reservoirs Section

2 (first page) 216 Study, Coordination Meeting,
3 Harris County Flood Control
4 District/Corps of Engineers, 16 June
5 1994."
6 896 950 June 29, 1994, Public announcement
7 (first two pages) for the Corps' reevaluation of the
8 Addicks and Barker reservoirs
9 896 956 June 29, 1994, Public announcement
10 (page 4) for the Corps' reevaluation of the
11 Addicks and Barker reservoirs
12
13 SOARES PAGE DESCRIPTION
14 7 1084 Photo - Street Flooding
15 49 1086 8/31/2017 Photograph of property
22 70 1086 8/31/2017 - near McMeans Junior High
23 School on Westheimer Parkway.JPG
24
25

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

2019-05-09 Harvey - Trial Testimony Day 4 (Vogler, Muic, Thomas, Soares) - FULL

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2019-05-09 Harvey - Trial Testimony Day 4 (Vogler, Muic, Thomas, Soares) - FULL

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1 IN THE UNITED STATES COURT OF FEDERAL CLAIMS

For The Record, Inc.

For The Record, Inc.

For The Record, Inc.

For The Record, Inc.

For The Record, Inc.

For The Record, Inc.

For The Record, Inc.

For The Record, Inc.

For The Record, Inc.

1 admitted into evidence?

For The Record, Inc.

1 Q. BY MR. EASTERBY: And Mr. Vogler, it appears

For The Record, Inc.

1 asked if we could get the investigation on the work

For The Record, Inc.

1 Q. And any estimation as to when the work will

For The Record, Inc.

1 experience and knowledge as a Professional Engineer?

For The Record, Inc.

1 Q. If those channels just stopped at

For The Record, Inc.

1 Q. Mr. Vogler, do you know of any structure

For The Record, Inc.

1 Q. And what does that mean? It's already been

For The Record, Inc.

For The Record, Inc.

1 THE COURT: May the Court excuse Mr. Vogler?

For The Record, Inc.

1 called as a witness herein, having been first duly

For The Record, Inc.

For The Record, Inc.

For The Record, Inc.

1 Court what it is, please.

For The Record, Inc.

1 A. Yes; that's correct.

For The Record, Inc.

1 Q. Aside from the government-owned lands that

For The Record, Inc.

1 property that it does not own?

For The Record, Inc.

1 that the Corps can place water on property at all.

For The Record, Inc.

For The Record, Inc.

1 factors that go into the analysis of whether we must

For The Record, Inc.

1 water on property is not one the Corps does by

For The Record, Inc.

For The Record, Inc.

1 Q. Yes, ma'am. All right.

For The Record, Inc.

1 At least to the extent the dam could hold water to

For The Record, Inc.

For The Record, Inc.

1 MS. DUNCAN: Objection. Can I get a page and

For The Record, Inc.

1 MS. DUNCAN: On the page before, this

For The Record, Inc.

1 Q. Can you tell the Court what it is generally?

For The Record, Inc.

1 position that the answer today is different from that

For The Record, Inc.

1 MS. DUNCAN: Start at page 96 line 12.