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)
SAINT BERNARD PARISH GOVERNMENT
)
AND OTHER OWNERS OF REAL PROPERTY
)
IN SAINT BERNARD PARISH OR THE

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LOWER NINTH WARD OF THE CITY OF
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NEW ORLEANS,
)



)



)



)



)



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)

UNITED STATES OF AMERICA,
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________________________________________________)




Plaintiffs,


v.




















Defendant.













































No. 05-1119 L

Judge Susan G. Braden









Case 1:05-cv-01119-SGB Document 192 Filed 05/18/12 Page 1 of 71

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

UNITED STATES’ RESPONSES TO PLAINTIFFS’ PROPOSED FINDINGS OF FACT



Defendant United States submits respectfully this response to proposed findings of fact

Plaintiffs submitted in association with their post-trial memorandum. See Pls.’ Proposed

Findings of Fact, filed Apr. 13, 2012 (ECF No. 184-1). By responding to Plaintiffs’ proposed

findings, the United States does not concede that any fact included herein is relevant to the legal

elements Plaintiffs must prove to succeed on their takings claims. The United States included a

discussion of all the material facts germane to the legal elements Plaintiffs must prove in its

opening post-trial memorandum. See U.S.’ Post-Trial Mem. at 3-24, filed Apr. 13, 2012 (ECF

No. 181) (U.S.’ Mem.”). Despite the voluminous documentary evidence Plaintiffs now seek to

introduce into the record, the factual background pertinent to the legal issues in this matter is

limited and largely undisputed.



Nor does the United States’ response constitute a waiver of its objections to the

admissibility of any materials cited herein. The United States preserves and re-asserts all the

general and specific evidentiary objections made at trial and in the United States’ previous

 

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Case 1:05-cv-01119-SGB Document 192 Filed 05/18/12 Page 2 of 71

filings. See, e.g., Joint Submission of Exs. Offered Into Evidence, filed Mar. 23, 2012 (ECF No.

178) (“Joint Exhibit List”); U.S.’ Mot. to Exclude Robinson Material Not Independently

Admissible in this Action, filed Dec. 5, 2011 (ECF No. 157) (“United States’ Motion to

Exclude”).1



A.

1.


2.


3.

4.

5.

6.

7.

8.







The United States responds to Plaintiffs’ proposed findings of fact as follows:

Geography

Agreed. The United States notes, however, that this proposed finding of fact is offered
without support from the trial record. The document cited in support of this finding was
not referenced or introduced at trial in this matter.

The United States objects to this proposed finding of fact. Plaintiffs’ proposed finding is
offered without support from the trial record. The documents cited in support of this
finding were not referenced or introduced at trial in this matter.

Agreed. The United States notes, however, that this proposed finding of fact is offered
without support from the trial record. The document cited in support of this finding was
not referenced or introduced at trial in this matter.

Agreed.

Agreed.

Agreed.

Agreed.

The United States agrees that in 1965, Congress passed the Flood Control Act of 1965,
Pub. L. No. 89-298, 79 Stat. 1073, authorizing the construction of a hurricane protection
system for the Lake Pontchartrain vicinity. See 79 Stat. at 1077. The remainder of this
proposed finding of fact is offered without support from the trial record. At trial,
Plaintiffs introduced and discussed only limited excerpts of SPX.169, stating that “[t]his
document again, Your Honor, we’re providing excerpts because it’s a very lengthy
document.” Tr. of Trial (“Tr.”) at 825:25 to 826:2 (Colatriano). Plaintiffs introduced
only pages ES-11 (Tr. at 826-27); ES-12 (Tr. at 827-28); 3-14 (Tr. at 828-29); and 3-8
(Tr. at 1048). The portion of SPX.169 upon which this proposed finding rests was not
referenced or introduced at trial in this matter.

                                                            
1 By referencing these filings as illustrative, the United States does not waive objections made in any other filings in 
these proceedings. 

 

2















9.

10.

11.

Case 1:05-cv-01119-SGB Document 192 Filed 05/18/12 Page 3 of 71

The United States objects to this proposed finding of fact. Plaintiffs’ proposed finding is
offered without support from the trial record. The documents cited in support of this
finding were not referenced or introduced at trial in this matter. As discussed in the
United States’ response to Plaintiffs’ proposed finding number eight, Plaintiffs
introduced and discussed only limited excerpts of SPX.169. The portion of SPX.169
upon which this proposed finding rests was not referenced or introduced at trial in this
matter. This proposed finding also purports to rest on SPX.220, Robinson JX-285, and
PX 98.2. These materials were not referenced or introduced at trial in this matter.

Agreed.

The United States objects that this proposed finding is simply a recitation of Dr. Kemp’s
erroneous opinion about the MRGO’s supposed influence on storm surge during
Hurricane Katrina, and an unsupported extension of that opinion to all “major storms.”
For the reasons discussed at trial, Dr. Kemp’s opinion that the MRGO is responsible for
flooding during Hurricane Katrina is flawed; moreover, because Dr. Kemp (like all of the
plaintiffs’ experts in Robinson) relied solely on an analysis of Hurricane Katrina, there is
no basis to extend that opinion to any other storm. This proposed finding also cites a
“Post-Authorization Change Report,” identified as SPX.146. This document was not
referenced or introduced at trial in this matter. For the reasons stated in the United
States’ Motion to Exclude and the Joint Exhibit List, this document is not part of the trial
record, and the United States objects to Plaintiffs’ reliance upon it here. Furthermore,
Plaintiffs’ selected quotation from this document is cited out of context and distorts the
meaning of this document.



B. Plaintiffs


12.

13.

14.

15.

16.

1. Robin Plaintiffs

Agreed.

Agreed.

Agreed.

Agreed.

The United States objects that this proposed finding is offered without support from the
trial record. The United States did not object to admission of the documents (SPX.1012
or SPX.1156) upon which this finding is based, but those documents do not indicate
when Plaintiff Edward Robin, Sr. acquired any property.

17.

The United States objects that this proposed finding is offered without support from the
trial record. The United States did not object to admission of SPX 1156, upon which this

 

3

Case 1:05-cv-01119-SGB Document 192 Filed 05/18/12 Page 4 of 71

finding is based, but that document does not indicate when Plaintiff Edward “Pete”
Robin, Jr. acquired any property.

Agreed.

Agreed.

Agreed.

Agreed.

Agreed.

The United States objects to proposed fact number twenty-three. Yscloskey
Developments #5, LLC is not a named Plaintiff to this action, and its property ownership
interests are not relevant to any element of Plaintiffs’ Fifth Amendment takings claims.

Agreed.

Agreed.

The United States opposes this proposed finding of fact. This proposed finding is
incomplete and misleading to the extent that it implies that Plaintiff Robin suffered
permanent damages as a result of Hurricane Katrina. Robin did testify that Hurricane
Katrina destroyed structures on this property, but there is no evidence that flood waters
from Hurricane Katrina, or the possibility of future flooding, prevented Robin from
rebuilding on this property.

The United States agrees that Brad Robin’s testimony supports this statement. But the
proposed finding of fact is not relevant to Plaintiffs’ claims, which are premised upon the
alleged uncompensated taking of a flowage easement. The Court has already ruled that
Plaintiffs are entitled to recover, if at all, for the impact to their land, not for the alleged
frustration of business opportunities. See St. Bernard Parish v. United States, 88 Fed. Cl.
528, 549 (2009) (dismissing Plaintiffs’ claims for “‘lost benefits’ and ‘profits’ of
Plaintiffs’ ‘commercial ventures’”). In addition, there is no evidence that flood waters
from Hurricane Katrina, or the possibility of future flooding, prevented Robin Seafood
from rebuilding the wholesaling part of its business.

The United States agrees that Brad Robin’s testimony supports this statement.

The United States opposes this proposed finding of fact. This proposed finding is offered
without support from the trial record. At the indicated page of the trial transcript (Tr. at
651), Robin testified that Hurricane Katrina resulted in thirty inches of water in his home,
not that his residence was destroyed.

4



























18.

19.

20.

21.

22.

23.

24.

25.

26.

27.

28.

29.

 

Case 1:05-cv-01119-SGB Document 192 Filed 05/18/12 Page 5 of 71

The United States agrees that Brad Robin’s testimony supports this statement.

The United States agrees that Brad Robin’s testimony supports this statement.

The United States agrees that Brad Robin’s testimony supports this statement.

The United States agrees that Brad Robin’s testimony supports this statement.

The United States agrees with the first sentence of this proposed finding. The United
States opposes the remainder of this proposed finding of fact. Brad Robin testified that
when Hurricane Betsy passed, his house did not flood; Robin then agreed with the
statement that “water levels c[a]me up in the area,” stating “Correct. It came up eight
feet.” Tr. at 625:17-19 (Robin). In the indicated page of the transcript, he did not testify
that water reached “eight feet at the Robins’ property in the Shell Beach area,” as this
proposed finding asserts.

The United States opposes this proposed finding of fact. This proposed finding is
incomplete and misleading. Robin testified that Hurricane Ivan coincided with “six feet
of water on our road.” Tr. at 626:25. By “our road,” Robin referred to the “road in
Yscloskey,” not a road Robin owned, as this proposed finding suggests.

The United States opposes this proposed finding of fact. This proposed finding is
incomplete and misleading. Robin testified that Hurricane Lili coincided with “six feet of
water on our road.” Tr. at 626:10 (Robin). By “our road,” Robin referred to the “road in
Yscloskey,” not a road Robin owned , as this proposed finding suggests.

The United States opposes this proposed finding of fact. This proposed finding is
incomplete and misleading. Robin testified that by “northeast” wind, he meant a wind
originating in the southeast and moving in a northwest direction. See Tr. at 654:19-655:2
(Robin) (discussing DX-1). As discussed in the United States’ Post-Trial Brief, this
testimony is inconsistent with the testimony of Plaintiffs’ expert, Dr. Kemp, and instead
confirms the expert testimony of Dr. Britsch that the “main hydraulic connection to the
Gulf is through [backchannel] waterways, not through the MRGO.” U.S.’ Mem. at 73-74
(quoting Tr. at 987:7-10 (Britsch)).

Plaintiffs’ proposed finding thirty-seven is also incorrect. In the pages indicated, Robin
did not testify that flooding during non-storm sustained winds started flooding his
property “by approximately 2002,” as this proposed finding of fact states. Instead, Robin
agreed with Plaintiffs’ counsel that this new phenomenon has been happening “now more
often than it did before the passage of [Hurricane] Katrina.” Tr. at 647:23-25; see also
Dep. of Brad Robin at 48 (Oct. 13, 2010) (“B. Robin Dep.”) (“Q: And how long have
you noticed that condition? A: Prior to Katrina, it [i.e., flooding] wasn’t that normal.
Now, it’s just – if we have a northeast wind, we have water on the property and the road.
Q: And so you said prior to Katrina it wasn’t that normal. I mean, is that a pretty definite
break? I mean, before 2005 you almost never saw that condition? A: You seen it several

5













30.

31.

32.

33.

34.

35.

36.

37.



 

Case 1:05-cv-01119-SGB Document 192 Filed 05/18/12 Page 6 of 71

times, but not as much as you see now. As we – what I’m trying to say is it’s getting
worser [sic] as it goes along.”). Robin’s observation that flooding got worse after
Hurricane Katrina is consistent with Robin’s other testimony that Hurricane Katrina
dramatically impacted the physical landscape surrounding his properties. See id. at
631:15-18 (Robin) (discussing destruction of ridges, trees and shrubbery during
Hurricane Katrina); id. at 650:2-651:8 (Robin) (describing loss of trees and shrubbery
after Hurricane Katrina).

The United States objects that this proposed finding is incomplete and misleading.
Robin testified that if there is a “northeast wind for three days . . . we got water on our
property.” Tr. at 647:21-22 (Robin). In addition, Robin testified that the extent of
flooding differs on other factors too: “How much – depending on the tide that come in –
northeast wind, you might have six inches on the property, in some cases, a foot in others.
The further you get away from the road where the land gets lower, you get more water.”
B. Robin Dep. at 48:19-24.

The United States opposes this proposed finding of fact which the evidence cited does not
support. At the transcript page indicated, Robin did not testify how long flood waters
typically remain on his property after the wind stops.

The United States objects that this proposed finding is misleading and lacks support in
the trial record. On the transcript pages indicated, Robin did not testify that flooding
during low-wind events can cause flooding that blocks access to his properties or covers
the properties with water. Rather, on the pages indicated, Robin spoke specifically about
Tropical Storm Lee, a storm that caused flooding in numerous states. The fact that
Tropical Storm Lee coincided with floods on certain properties including, as Plaintiffs
emphasized at trial, a property approximately five miles from the MRGO, see Tr. at
641:5-6 (Robin), demonstrates nothing about the alleged impact of the MRGO.

The United States objects that this proposed finding of fact is incomplete and misleading.
Robin did not testify about stronger winds “necessitating a faster evacuation,” as this
proposed finding of fact states. On the indicated pages, he did not use the word
“evacuation” at all – he simply stated that if the wind “gets into the 15 to 20 or gusts, then
you know you got less time to get out of there [as compared to 8 to 15 mile-an-hour
winds].” B. Robin Dep. at 49:9-12.

The United States objects that this proposed finding is misleading and notes that the trial
record contradicts the proposed finding. At the transcript pages indicated, Robin did not
testify that the frequency of non-storm flooding has increased since 2002. Instead, Robin
agreed with Plaintiffs’ counsel that this new phenomenon has been happening “now more
often than it did before the passage of [Hurricane] Katrina.” Tr. at 647:23-25 Robin); see
also B. Robin Dep. at 48 (“Q: And how long have you noticed that condition? A: Prior to
Katrina, it [i.e., flooding] wasn’t that normal. Now, it’s just – if we have a northeast
wind, we have water on the property and the road. Q: And so you said prior to Katrina it
wasn’t that normal. I mean, is that a pretty definite break? I mean, before 2005 you
almost never saw that condition? A: You seen it several times, but not as much as you

6







38.


39.

40.

41.

42.

 

Case 1:05-cv-01119-SGB Document 192 Filed 05/18/12 Page 7 of 71

see now. As we – what I’m trying to say is it’s getting worser [sic] as it goes along.”).
This testimony – that flooding got worse after Hurricane Katrina – is consistent with
Robin’s other testimony that Hurricane Katrina dramatically impacted the physical
landscape surrounding his properties. See id. at 631:15-18 (Robin) (discussing
destruction of ridges, trees and shrubbery during Hurricane Katrina); id. at 650:2-651:8
(Robin) (describing loss of trees and shrubbery after Hurricane Katrina).

The United States objects that this proposed finding is misleading; the documents cited
do not support the proposed finding. At the first transcript page cited, Tr. at 598, Robin
testified that he owns undeveloped properties in Hopedale and Delacroix. He testified
that he never attempted to develop the Hopedale property, but he had “built [it] up with
material . . . mud and stuff like that.” Tr. at 598:16-21. Robin offered no testimony that
he placed this material on this property in response to flooding the MRGO caused or that
the material was even intended to prevent flooding. Robin offered no testimony to
support Plaintiffs’ assertion that “the flooding continues” on this property.

With respect to the Delacroix property, Robin testified that he “put a little bit of landfill”
there. Tr. at 598:25 (Robin). Robin offered no testimony that he placed this material on
this property in response to flooding the MRGO caused , or that the material was even
intended to prevent flooding. Robin offered no testimony to support Plaintiffs’ assertion
that “the flooding continues” on this property.

At the second transcript page indicated, Robin testified that he “raised [the RV park
property] probably three foot, three and a half foot.” Tr. at 633:16-17 (Robin). The only
testimony that “the flooding continues” is Robin’s testimony about Tropical Storm Lee.
As discussed above in reply to Plaintiffs’ proposed finding number forty-two, that
testimony about Tropical Storm Lee demonstrates nothing about the alleged impact of the
MRGO, and is entirely irrelevant to this lawsuit.

The United States objects that this proposed finding of fact is incomplete and misleading,
and the documents indicated do not support the proposed finding. In the trial transcript
pages indicated, Robin testified that during Tropical Storm Lee one of his properties – the
RV park – was flooded by three feet of water, and an empty field, which Robin does not
own, “looked like a lake.” Tr. at 635:11-14 (Robin). The photographs cited in support of
this proposed finding purport to show flooding Tropical Storm Lee caused. One of the
photographs depicted water on a road in a location approximately four miles from
Robin’s seafood processing facility. See Tr. at 636:20-21 (Robin) (discussing SPX-
1053A). Another photograph depicted property approximately five miles from the
MRGO. See id. at 641:5-6 (Robin) (discussing SPX-1053H). Robin did not provide any
testimony suggesting that any of the photographs depicted any of his properties. Also, as
discussed above in reply to Plaintiffs’ proposed finding number forty-two, Robin’s
testimony about Tropical Storm Lee demonstrates nothing about the alleged impact of the
MRGO.



7




43.

44.



 

Case 1:05-cv-01119-SGB Document 192 Filed 05/18/12 Page 8 of 71

2. Plaintiff PSSI

The United States agrees with the first sentence of this proposed finding of fact. The
United States objects that the second sentence of this proposed finding is incorrect and
the record materials cited do not support the proposed finding. At the trial transcript
pages indicated, Rod Willhoft explained that Port Ship Service, Inc. (“PSSI”) acquired
the property on Paris Road in the early 1980s. See Tr. at 841:12-13 (Wilhoft). Willhoft
did not discuss flooding on that property. At the deposition transcript pages indicated,
Willhoft discussed the frequency of gate operations, not flooding events. See Dep. of
Port Ship Serv., Inc. at 39-40 (taken Oct. 20, 2010) (“PSSI Dep.”).

Agreed.

Agreed.

Agreed.

Agreed.

Agreed.

Agreed.

The United States objects that this proposed finding is incomplete and misleading.
Willhoft testified that “We have a small levee on one side of the property” intended to
protect the property “from just normal tidal flooding.” Tr. at 842:4-9 (Whilhoft). There
is no evidence that the levee was constructed because of the MRGO or was ever intended
to protect against storm surge resulting from hurricanes, like Hurricane Katrina, or
tropical storms, like Tropical Storm Lee.

Agreed.

The United States agrees that Willhoft testified that repairs to the PSSI facility on Paris
Road “probably took at least two years, I would imagine. The timeframe’s a little hard to
remember now exactly.” Tr. at 844:25-845:2 (Wilhoft). There is no evidence that the
length of time necessary to repair the PSSI facility was extended due to standing water or
inevitably recurring flooding on this property.

The United States objects that this proposed finding is incomplete and misleading. When
asked to explain at what point in time he started noticing “more flooding and faster
flooding,” Willhoft answered “It just seems – it just seems to accelerate as the years go
on. I don’t have a pinpoint date for that really.” PSSI Dep. at 30:2-9. Willhoft then
clarified: “I don’t know if I would say [that there has been a pattern since he’s owned the
property], but in recent years, it’s been much worse. I don’t remember it flooding from
normal tidal flooding way back when. I mean, there might have been a couple isolated

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45.

46.

47.

48.

49.

50.

51.

52.


53.

54.

55.

 

Case 1:05-cv-01119-SGB Document 192 Filed 05/18/12 Page 9 of 71

incidents, but I’m not sure.” Id. at 30:14-19. When asked for a ballpark date – “are we
talking five, ten, fifteen, how many years?” – Willhoft responded “Ten years.” Id. at
30:20-23. Furthermore, at trial, PSSI described only a single flood on the Paris Road
property after Hurricane Katrina, explaining that Tropical Storm Lee resulted in some
flooding on this property. See Tr. at 847:17-848:3 (Willhoft).

The United States objects that this proposed finding of fact is incomplete and misleading.
When asked to describe the impacts of flooding on the property on Paris Road, Willhoft
explained that “it depends on the extent of the flooding. Sometimes you can drive on the
property, you know, in a foot of water or so. Sometimes it’s too deep to drive through
unless, you know, you’ll get water in your vehicle.” PSSI Dep. at 36:13-18. Further, at
trial, PSSI described only a single flood on the Paris Road property after Hurricane
Katrina, explaining that Tropical Storm Lee resulted in some flooding on this property.
See Tr. at 847:17-848:3 (Willhoft).

The United States objects that this proposed finding is incomplete and misleading.
Willhoft testified that “We have a small levee on one side of the property” intended to
protect the property “from just normal tidal flooding.” Tr. at 842:4-9 (Wilhoft). Willhoft
also testified that “I have a bulkhead in the front of the property.” PSSI Dep. at 34:10-11.
There is no evidence that the levee was constructed because of the MRGO, or that was
ever intended to protect against storm surge resulting from hurricanes, like Hurricane
Katrina, or tropical storms, like Tropical Storm Lee.

The United States agrees that Willhoft did so testify, but his testimony demonstrates why
Plaintiffs’ claim fails on the merits. He testified that after storms, “large sections of [the
marsh] disappear and just become water.” PSSI Dep. at 48:13-14. According to
Willhoft, the deterioration of marsh adjacent to his property “was highly accelerated
when Hurricane Katrina came through.” Id. at 47:23-24. If Willhoft is correct, his
testimony suggests that Hurricane Katrina and not the MRGO caused this flooding. See
U.S.’ Mem. at 75. In addition, the evidence proved at trial that a 1947 hurricane caused
much of the wetlands loss in the area of Bayou Bienvenue. See SPX.704 at 106; Britsch
Test. at 12 (DX-208, Fig. 2); id. at 29:5-7 (“[L]arge areas of land loss north of the 40
Arpent Levee near Bayou Bienvenue were attributed to erosion during a 1947
hurricane.”).  

Agreed.

The United States opposes this proposed finding of fact. The proposed finding is
incomplete and misleading. Willhoft testified that he has observed an acceleration in
how often the floodgates are closed. See Tr. at 847:7-11 (Wilhoft); PSSI Dep. at 39:19-
20. When asked when this change started, Willhoft explained that “I think it has
progressed over the years, but it’s definitely worse since Katrina and some of the other[]
[hurricanes].” PSSI Dep. at 40:2-4 (Wilhoft). As explained in the United States’ Post-
Trial Brief, if Willhoft is correct, his testimony suggests that Hurricane Katrina, and not
the MRGO, caused this alleged flooding. See U.S.’ Mem. at 75.

9









56.

57.


58.

59.

60.

 









Case 1:05-cv-01119-SGB Document 192 Filed 05/18/12 Page 10 of 71

Agreed.

Agreed. Tropical Storm Lee caused flooding throughout Louisiana and in numerous
other states, not just on PSSI’s property. The fact that Tropical Storm Lee coincided with
floods on certain properties demonstrates nothing about the alleged impact of the MRGO.

3. Tommaseo Plaintiffs

Agreed.

The United States objects that this proposed finding of fact because the trial record does
not support the proposed finding. At the cited deposition transcript page, Tommaseo did
not say anything about flooding during an eastern wind. Plaintiffs likely intended to cite
page fifty-eight of Tommaseo’s deposition. If so, this proposed finding of fact is
incomplete and misleading. At page fifty-eight of his deposition, Tommaseo stated that
winds of some unknown strength would flood his property “[s]ix inches, eight inches.”
Dep. of Tommoso Tommaseo at 58:13-18 (Oct. 18, 2010) (“Tommaseo Dep.”). Notably,
Tommaseo also stated that this type and degree of flooding has occurred regularly from
the time he acquired the property in the late 1990s. Id. at 58:24-59:2. There is no
evidence that this flooding results from the MRGO, but even if there was, the six-year
statute of limitations bars this claim. This testimony provides another reason why the
Court should reject Plaintiffs’ claim.

The second sentence of this proposed finding of fact misrepresents Tommaseo’s
testimony, and is incomplete and misleading. At the indicated page of his deposition,
Tommaseo offered the following explanation of why he thinks this property floods more
after Hurricane Katrina:

I think it’s [i.e., flooding] more now. Yes, because of the BP

A:
situation, I mean, just because we’ve been going town there more
frequently during that time.

So you’ve been down there more frequently, so you personally

Q:
have experienced it more often?

A:

Yes, uh-huh.

Do you have any other independent reason to believe that it is

Q:
occurring more often or it’s simply that you’re observing it more often?

A:

Just observing it more often.

Tommaseo Dep. at 61:14-62:1. The fact that Tommaseo sees more flooding now simply
because he visits the property more often now further demonstrates why the Court should

10

61.

62.




63.

64.

 

Case 1:05-cv-01119-SGB Document 192 Filed 05/18/12 Page 11 of 71

reject his claim. Even if Tommaseo’s observation was accurate, his testimony suggests
that Hurricane Katrina and not the MRGO caused this flooding. See U.S.’ Mem. at 75.

Agreed.

Agreed.

The United States opposes this proposed finding of fact. The United States renews and
re-asserts its objection to the admission of all evidence related to properties not listed in
Plaintiffs’ operative complaint. See U.S.’ Mot. to Exclude (1) All Evidence Relating to
Props. Not Identified in the Third Am. Compl., & (2) All Evidence Related to Props. Pls.
Did Not Own at the Time Pls. Assert their Claims Accrued, filed Nov. 23, 2011 (ECF
No. 150). Several of the properties listed in this proposed finding of fact relate to these
inadmissible documents.

The United States opposes this proposed finding of fact. The United States renews and
re-asserts its objection to the admission of all evidence related to properties not listed in
Plaintiffs’ operative complaint. See id. Several of the properties listed in this proposed
finding of fact relate to these inadmissible documents.

Agreed.

Agreed.

Agreed.

Agreed.

Agreed.

The United States agrees that Tommaseo testified that he “had water approximately four
feet inside” his house, but not “four to six feet of water,” as this proposed finding of fact
states. Tommaseo Dep. at 36:10-11.

Agreed. But there is no evidence that the length of time Mr. Tommaseo was unable to
live in his home was extended due to standing water or inevitably recurring flooding on
this property.

The United States objects that this proposed finding is misleading. Tommaseo testified
that Hurricane Katrina damaged several of his properties, but some of this damage was
clearly unrelated to flood water. For example, when discussing his properties on Delille
and Standard Streets, Tommaseo described the damage “on the roofs [due to] a lot of
wind damage. On the inside, all the furniture and everything was just everywhere like in
my house. Things were floating around everywhere – in my house I’m talking about. As

11























65.

66.

67.

68.

69.

70.

71.

72.

73.

74.

75.

76.

 

Case 1:05-cv-01119-SGB Document 192 Filed 05/18/12 Page 12 of 71

far as the rental properties, I [don’t] know whether it was floating or not, but things were
rearranged and mud was still inside the houses.” Tommaseo Dep. at 168:7-13.

The United States objects that this proposed finding is incomplete and misleading.
Tommaseo testified that Hurricane Katrina destroyed houses on these properties. And in
the very next sentence of his deposition, which Plaintiffs do not cite, Tommaseo testified
that he has rebuilt houses on each of these properties. Tommaseo Dep. at 90:23-24.

Agreed.

Agreed. But there is no evidence that the length of time Mr. Tommaseo was unable to
operate Rocky and Carlo’s restaurant was extended due to standing water or inevitably
recurring flooding on this property.

Agreed.

The United States objects that this proposed finding is incomplete and misleading.
Tommaseo testified that he did not have to obtain any new permits because he was
“grandfathered” in. Tommaseo Dep. at 39:1-3. Although the testimony is irrelevant to
Plaintiffs’ takings claims, after conferring with counsel during his deposition, Tommaseo
testified that he understood current building codes require a house to be raised four feet.
See id. at 39:12. Tommaseo did not testify that any federal agency requires any type of
building permit or that any federal agency enforce the new building code he alleges, as
this proposed finding of fact states.

The United States objects that this proposed finding is incomplete and misleading. At the
trial transcript page indicated, Tommaseo was asked whether he “ever went down to the
Shell Beach, Yscloskey area “prior to the construction of the MRGO?” Tr. at 182:6-7
(Zelaya). Tommaseo answered “No.” Id. at 182:11 (Tommaseo). Tommaseo stated that
the first time he went there was in the late 1970s. See id. at 182:12-14.

Agreed.

Agreed.

4. Plaintiffs Steven and Cynthia Bordelon

The United States objects that this proposed finding of fact is incomplete and misleading.
During his deposition, Stephen Bordelon (“Bordelon”) testified that he could not
remember when he acquired the property known as 3024 Lakewood Drive, Violet, St.
Bernard Parish. Dep. of Steven Bordelon at 13:22-14:1 (Oct. 14, 2010) (“Bordelon
Dep.”). SPX.911 indicates that Bordelon and his wife, Cynthia Bordelon nee Bacala,
acquired this property on January 27, 1993.

12



















77.

78.

79.

80.

81.

82.

83.

84.



85.

 

86.

87.

88.

89.

90.

91.

92.




93.

94.

Case 1:05-cv-01119-SGB Document 192 Filed 05/18/12 Page 13 of 71

The United States agrees that SPX.912 indicates that Steve’s Mobile Home & R.V.
Repair, Inc. (“Steve’s”) acquired the property known as 3209 East Judge Perez Drive,
Meraux, St. Bernard Parish, on July 20, 1999.

Agreed.

Agreed.

The United States agrees that Bordelon testified that he was not allowed to return to the
area for approximately one month after Hurricane Katrina. Bordelon Dep. at 17:21-22.
There is no evidence that the federal government prevented the Bordelons’ return, as this
proposed finding of fact might suggest. Instead, Bordelon testified that it was St. Bernard
Parish – not the federal government – that was granting passes, and, therefore, apparently
restricting access to this area. See id. at 18:1-2.

Agreed. This proposed finding of fact, however, is not relevant to Plaintiffs’ Fifth
Amendment takings claims.

The United States objects that the trial record does not support this proposed finding of
fact. At the cited page of his deposition transcript, Bordelon testified about his house, not
his business’s property. The proposed finding is also incomplete and misleading.
Bordelon testified that although the business property suffered significant damage during
Hurricane Katrina, the facilities of Steve’s RV were restored to the same operational
capacity they had before the hurricane. Bordelon Dep. at 30:4-9.

Agreed. But there is no evidence that the length of time Bordelon was prevented from
returning this property to full operations was extended due to standing water or inevitably
recurring flooding on this property.

5. Plaintiffs Gwendolyn and Henry Adams

The United States agrees that, according to SPX.1039, Plaintiff Gwendolyn Adams
acquired the property identified as 2414 Deslonde St. on May 25, 1994.

The United States objects that the record does not support this proposed finding of fact.
Plaintiff Gwendolyn Adams testified that when she returned to check on her property
after Hurricane Katrina, she “ believe[d] it was November, but [was] not sure.”
Deposition of Henry & Gwendolyn Adams at 17:11-12(Oct. 15, 2010) (“Adams Dep.”).
When asked when she was able to access the house, Plaintiff Gwendolyn Adams
responded: “Right now, I can’t really say. It’s unfortunate, but I’ve had a couple of
seizures since that time and those dates are not with me, so I cannot tell you that.” Id. at
18:1-4.

95.

Agreed.

 

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Case 1:05-cv-01119-SGB Document 192 Filed 05/18/12 Page 14 of 71

96.

97.




98.


99.

Agreed. But this proposed finding of fact ignores the fact that Plaintiff Adams rebuilt her
home in the same location as the original structure. Adams Dep. at 20:3-10.
Consequently, neither the flood waters resulting from Hurricane Katrina or any other
storm, nor the risk of inevitably recurring flooding has hindered the Adams from
rebuilding a home on this property. See U.S. Mem. at 24.

The United States objects that this proposed finding of fact is inaccurate, misleading and
has no support in the trial record. Plaintiff Gwendolyn Adams did not testify that she
faced new building restrictions and elevation requirements “based on MRGO flooding
and the threat of future MRGO flooding,” as this proposed finding of fact falsely claims.
Adams testified that when she rebuilt the house “there were many stipulations in
rebuilding,” including rebuilding to a higher elevation with deeper pilings. Adams Dep.
at 14:23-15:9. There is no evidence that the United States imposed these new
restrictions, as this proposed finding of fact wrongly suggests, and there is no evidence
that these restrictions were adopted due to “MRGO flooding” or to protect against a
supposed threat of “future MRGO flooding.”

6. Plaintiff St. Bernard Parish Government

The United States objects that this proposed finding of fact improperly asserts a
contention of law that the trial record contradicts. None of the properties involved in this
case have experienced inevitably recurring flooding, and Plaintiffs failed to show that any
property flooded during any event (including during Hurricane Katrina) as a result of
construction or maintenance of the MRGO. As a factual matter, representatives of St.
Bernard Parish testified that the Parish has records of only one flooding event post-
Hurricane Katrina, and that this flooding incident took place outside the federal hurricane
protection system. See U.S.’ Mem. at 17 & n.9; Tr. at 144:1-23 (Walsh).

The United States opposes this proposed finding of fact. The United States renews and
re-asserts its objection to the admission of all evidence related to properties not listed in
Plaintiffs’ operative complaint. See ECF No. 150. Several of the properties listed in this
proposed finding of fact relate to these inadmissible documents.

100. Agreed.

101. Agreed.

102. Agreed.

103. The United States objects that this proposed finding is misleading. Further, to the extent

that the proposed finding suggests that either federal government action or Hurricane
Katrina floodwaters physically blocked Walsh’s return to St. Bernard Parish for two
weeks following that storm, the trial record does not support the proposed finding. Walsh
testified that she “came back to the Parish Government to secure some files about two
weeks later. . . .” Tr. at 118:7-9 (Walsh).

 

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Case 1:05-cv-01119-SGB Document 192 Filed 05/18/12 Page 15 of 71

104. Agreed.

105. Agreed.

106. The United States objects because the record does not support this proposed finding. At

the trial transcript pages cited, Walsh testified only that “a lot of those records were
destroyed from what I understand.” Tr. at 119:19-20 (Walsh). Walsh also preserved
certain Parish records which she authenticated and testified about during trial. See id. at
140-145.

107. Agreed

108. The United States opposes this proposed finding of fact, which is vague and misleading

to the extent it suggests that St. Bernard Parish was unable to rebuild following Hurricane
Katrina. As proven at trial, St. Bernard Parish received approximately $7.1 million in
flood insurance payments and, with the exception of work remaining on a municipal
wastewater treatment plant, St. Bernard Parish expected the construction phase of the
recovery program to be complete by the end of 2011. Dep. of Michelle Walsh at 40:17-
21 (Jan. 13, 2011); Dep. of Craig P. Taffaro, Jr. at 71:13-18 (Jan. 13, 2011).

109. The United States agrees that Walsh testified that the government complex was

“completed entirely [in] 2010” and that in “2009, I believe people started moving back
into the complex.” Tr. at 127:8-10 (Walsh).

110. The United States agrees that Walsh testified that flooding from Hurricane Katrina

affected the fire stations in St. Bernard Parish.

111. The United States agrees that Ms. Walsh testified that flooding from Hurricane Katrina

affected Parish-owned buildings outside the federal hurricane protection system.

112. Agreed.

113. Agreed.

114. The United States agrees that Walsh testified that she did not return to her home

following Hurricane Katrina until “six weeks later.” Tr. at 122:18-19 (Walsh). The
United States objects that this proposed finding is misleading to the extent that it suggests
federal government action or Hurricane Katrina floodwaters physically blocked Walsh
from returning to her home for this length of time, which is a contention the trial record
does not support. In addition, Ms. Walsh’s residence is not part of this lawsuit.

115. Agreed.

 

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Case 1:05-cv-01119-SGB Document 192 Filed 05/18/12 Page 16 of 71

116. The United States objects that this proposed finding of fact is not relevant to any element

of Plaintiffs’ Fifth Amendment takings claims.


C. Wetlands as Surge Buffers

117. The United States objects that this proposed finding of fact is incomplete and misleading.
In his several depositions, Greg Miller testified that, as general proposition, wetlands and
marshes may, in some situations, play a role in providing a natural protection against
storm surges and hurricanes. See Dep. of Greg Miller at 26-27 (Apr. 16, 2008). But
Miller explained he could not quantify the magnitude of storm surge reduction wetlands
might play in the area around the MRGO, or in any area. Id. at 28; see also Dep. of Greg
Miller at 69:3-7 (Feb. 10, 2011) (“It is too generalized of a question because there are too
many other factors that go into the characteristics of the storm, the location of it, the
location within the system. . . .”). Miller explained that he was not aware of any attempt
to quantify a particular acreage of wetlands in this area with a corresponding storm surge
reduction. See id. at 67:4-9. Dr. Kemp observed that the buffering impact of wetlands
does not conform to a precise formula and “varies from storm to storm.” Tr. at 292:7-8
(Kemp). Further, at trial, Plaintiffs offered no evidence demonstrating the difference the
environmental impacts resulting from the MRGO might have had on storm surge in any
storm other than Hurricane Katrina. And Plaintiffs’ evidence with respect to Hurricane
Katrina was flawed.

In addition, some of the citations offered in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard these citations.

118. Agreed. But Plaintiffs offered no evidence concerning what difference the environmental
impacts resulting from the MRGO might have had on storm surge during any storm other
than Hurricane Katrina. And Plaintiffs’ evidence with respect to Hurricane Katrina was
flawed in the several ways discussed in the United States’ post trial brief. See U.S.’
Mem. at 41-61. In addition, Dr. Kemp observed that the buffering impact of wetlands
does not conform to a precise formula and “varies from storm to storm.” Tr. at 292:7-8
(Kemp).

119. The United States objects that this proposed finding is incomplete and misleading. As

the Plaintiffs’ citation indicates, Dr. Britsch did not express an opinion specific to
wetlands, but instead testified that “in general, land areas serve as storm buffers and
influence the hydrology.” Britsch Test. at 24:18-22. Dr. Britsch then testified “that most
of the land loss experienced in the St. Bernard Delta is unrelated to the MRGO.” Id. at
25:5-6.

120. The United States objects that this proposed fact finding is incomplete and misleading.
The storm surge reduction estimate was not an attempt to measure storm surge reduction
relevant to any particular property or this geographic area. There is no evidence in the
trial record that this estimate is relevant to any Plaintiffs’ property. In addition, some of
the citations offered in support of this finding were not referenced or introduced at trial in

16

 













Case 1:05-cv-01119-SGB Document 192 Filed 05/18/12 Page 17 of 71

this matter. For the reasons stated in the United States’ Motion to Exclude and the Joint
Exhibit List, these materials are not part of this trial record, and the Court should
disregard these citations. Furthermore, as discussed in the United States’ Post-Trial
Brief, the trial record establishes that the most significant portion of the land loss in the
St. Bernard Delta occurred during the construction of the MRGO, or immediately
thereafter. Def.’s Post-Trial Br. at 77 n.31. Plaintiffs failed to present any technical or
scientific evidence explaining how the condition which they allege is the cause of
flooding on their properties could exist for decades, but not actually result in increased
flooding on their properties until an undefined time within six years of the filing of their
lawsuit.

121. The United States objects that this proposed finding of fact is incomplete and misleading.
The storm surge reduction estimate was not an attempt to measure storm surge reduction
relevant to this geographic area, but instead was apparently based on data from Calcasieu
Lake and from the Grand Chenier marsh. See Kemp Written Test. at 231 n. Fig. 6.58.
There is no evidence in the record that this estimate is relevant to any of Plaintiffs’
properties. The trial record establishes that the most significant portion of the land loss in
the St. Bernard Delta occurred during the construction of the MRGO, or immediately
thereafter. See U.S.’ Mem. at 77 n.31. Plaintiffs failed to present any technical or
scientific evidence explaining how the condition which they allege is the cause of
flooding on their properties could exist for decades, but not actually result in increased
flooding on their properties until an undefined time within six years of the filing of their
lawsuit.

122. The United States objects that some of the documents cited in support of this finding

were not referenced or introduced at trial in this matter. These materials are not part of
the trial record, and the Court should disregard these citations. The United States further
objects that Plaintiffs presented no expert analysis concerning whether or to what extent
the “quality of wetlands” affected storm surge during any storm event other than
Hurricane Katrina, and presented no evidence showing how or whether the quality of any
wetlands adjacent to Plaintiffs’ properties has impacted flooding on those properties.

123. The United States objects that this proposed finding is offered without any support from

the trial record. The documents cited in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of the trial record, and the
Court should disregard this proposed finding.


124. The United States opposes this proposed finding of fact, which is offered without any
support from the trial record. The documents cited in support of this finding were not
referenced or introduced at trial in this matter. These materials are not part of the trial
record, and the Court should disregard this proposed finding.



Furthermore, the trial record establishes that the most significant portion of the land loss
in the St. Bernard Delta is unrelated to the MRGO, see Britsch Direct Testimony at 25:4-
6, and occurred before the construction of the MRGO, or immediately thereafter, see

17

 

Case 1:05-cv-01119-SGB Document 192 Filed 05/18/12 Page 18 of 71

U.S.’ Mem. at 77 n.31. Plaintiffs failed to present any technical or scientific evidence
explaining how the condition which they allege is the cause of flooding on their
properties could exist for decades, but not actually result in increased flooding on their
properties until an undefined time within six years of the filing of their lawsuit.

D. MRGO’s Destruction of Wetlands



125. The United States objects that this proposed finding is offered without any support from

the trial record. The documents cited in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of the trial record, and the
Court should disregard this proposed finding.


126. The United States agrees that Plaintiffs have accurately quoted a portion of SPX.1154.

That draft document’s estimate that MRGO “resulted in the conversion of 19,400 acres of
wetlands and 4,750 acres of shallow open water to deep open water or spoil,” which is
sourced to a 1999 EPA-commissioned study, see SPX.1154 at 1-13 (citing USACE,
Habitat Impacts of the Construction of the MRGO (1999)), is, in the explicit language of
the report itself, “especially speculative,” and conflicts with the more precise results of
the peer-reviewed land loss study Dr. Britsch presented in his direct testimony. See Tr. at
971:23-974:11 (Britsch). Dr. Britsch’s peer-reviewed study, which the plaintiffs’ experts
in Robinson affirmatively relied upon , was not challenged during trial in this case. Dr.
Britsch’s more precise study calculates that only 7,087 acres out of 103,870 acres of land
lost in the St. Bernard Delta from 1932-2001 is attributable to MRGO.

In addition, the United States objects that certain of the documents cited in support of
Plaintiffs’ proposed finding were not referenced or introduced at trial in this matter.
These materials are not part of this trial record, and the Court should disregard these
citations.

127. The United States objects that this proposed finding of fact, which asserts that the United

States did foresee the “environmental consequences of the MRGO” is irrelevant to any
element of Plaintiffs’ Fifth Amendment takings claims. Plaintiffs must prove not that the
United States could have foreseen a potential set of circumstances in which indirect
effects of the MRGO might exacerbate storm surge in the region; Plaintiffs must instead
prove that inevitably recurring flooding (not ecological changes in nearby wetlands or
alleged increased storm surge during one particular storm) is the direct, natural, or
probably result of construction or operation of the MRGO. This proposed finding is also
offered without any support from the trial record. The documents cited in support of this
finding were not referenced or introduced at trial in this matter. These materials are not
part of this trial record, and the Court should disregard this proposed finding.



1. Initial Construction of MRGO Destroyed Wetland Buffer


128. The United States agrees that the MRGO was constructed through wetlands in the 1950s.
But Plaintiffs’ admission is one of several reasons why the Court should reject Plaintiffs’

 

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Case 1:05-cv-01119-SGB Document 192 Filed 05/18/12 Page 19 of 71

claims. The unrebutted evidence establishes that the most significant portion of the land
loss in the St. Bernard Delta occurred before the construction of the MRGO, or
immediately thereafter. See U.S.’ Mem. at 77 n.31 (citing DX-208, Fig. 2, at 9).
Plaintiffs failed to present any technical or scientific evidence explaining how the
condition which they allege is the cause of flooding on their properties could exist for
decades, but not actually result in increased flooding on their properties until an
undefined time within six years of the filing of their lawsuit.

In addition, certain of the documents cited in support of this finding were not referenced
or introduced at trial in this matter. These materials are not part of the trial record, and
the Court should disregard these citations.

129. The United States does not disagree that MRGO was cut through wetlands, but objects
that there is no support in the trial record or the supporting citations offered here for the
assertion that MRGO’s location “maximized wetland destruction and resulting flooding
on Plaintiffs’ properties” or resulted in any flooding on Plaintiffs’ properties at all. In
addition, certain of the materials cited in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of the trial record, and the
Court should disregard these citations.

2. Erosion of MRGO’s Banks Destroyed Wetland Buffer


130. The United States opposes this proposed finding of fact. The first sentence of this
proposed finding of fact is offered without citation, and therefore is offered without
support from the trial record. Furthermore, all but three of the documents cited in support
of this finding – Robinson JX-195, Estopinal’s trial testimony, and Dr. Kemp’s written
testimony – were not referenced or introduced at trial in this matter. All of the cited
documents (except for these three) are not part of this trial record, and the Court should
disregard these citations.







 

In addition, Robinson JX-195 demonstrates conclusively that the vast majority of the
MRGO channel widening occurred well before 1985. See Robinson JX-195 at pdf. 132-
35. Plaintiffs failed to present technical or scientific evidence explaining how the
condition which they allege is the cause of flooding on their properties could exist for
decades, but not actually result in increased flooding on their properties until an
undefined time within six years of the filing of their lawsuit.

131. The United States opposes this proposed finding of fact. This proposed finding is offered
without any support from the trial record. The documents cited in support of this finding
were not referenced or introduced at trial in this matter. These materials are not part of
this trial record, and the Court should disregard this proposed finding.

In addition, Robinson JX-195 demonstrates conclusively that the vast majority of the
MRGO channel widening occurred well before 1985. See Robinson JX-195 at pdf. 132-
35. Plaintiffs failed to present technical or scientific evidence explaining how the
condition which they allege is the cause of flooding on their properties could exist for

19











Case 1:05-cv-01119-SGB Document 192 Filed 05/18/12 Page 20 of 71



decades, but not actually result in increased flooding on their properties until an
undefined time within six years of the filing of their lawsuit.

Further, the figures referenced in paragraph 131 are misleading and inaccurate. As Dr.
Britsch testified at trial, the measurements presented in these figures, and which purport
to be calculations of MRGO-caused erosion, improperly incorporate pre-existing water
bodies and exaggerate the extent of the erosion actually resulting from the expansion of
MRGO’s borders. See Tr. at 974:12-978:3 (Britsch).

132. The United States objects that the trial record does not support this proposed finding. All

but one of the documents cited in support of this finding – SPX.163 – were not
referenced or introduced at trial in this matter. All of the cited documents (except for
SPX.163) are not part of this trial record, and the Court should disregard these citations.

133. The United States objects that the trial record does not support this proposed finding. All
but one of the documents cited in support of this finding – Dr. Kemp’s trial testimony at
244:3-18 – were not referenced or introduced at trial in this matter. All of the cited
documents (except for Dr. Kemp’s trial testimony at 244:3-18) are not part of this trial
record, and the Court should disregard these citations.

134. The United States objects that the trial record does not support this proposed finding.

The documents cited in support of this finding were not referenced or introduced at trial
in this matter. These materials are not part of this trial record, and the Court should
disregard this proposed finding. The United States further objects that its purported
“acknowledgement” of the effect of ship wakes on the MRGO is not a fact relevant to
any element of Plaintiffs’ Fifth Amendment takings claims.

135. The United States opposes this proposed finding of fact. All but one of the documents

cited in support of this finding – Willhoft’s trial testimony at 839-40 – were not
referenced or introduced at trial in this matter. All of the cited documents (except for
Willhoft’s trial testimony at 839-40) are not part of this trial record, and the Court should
disregard these citations. In addition, Plaintiffs acknowledge the statements cited in
proposed finding 135 are statements of individuals or entities “outside the government”
and therefore constitute inadmissible hearsay. The United States further objects that the
effect of ship wakes on the MRGO is not a fact relevant to any element of Plaintiffs’
Fifth Amendment takings claims.

136. The United States opposes this proposed finding of fact. In contrast to this proposed

finding of fact, in the pages of the trial testimony cited, Dr. Britsch testified that a
shoreline loss measurement purporting to measure the erosion attributed to the MRGO
was, in several cases, “exaggerated because it incorporates some previous water bodies.”
Tr. at 976:25-977:1 (Britsch). When asked “if someone used that calculation to represent
the acreage of land that was lost due to dredging and erosion by the MRGO, what would
your view be of that?” Dr. Britsch answered “it could exaggerate that number.” Id. at
977:23-978:2 (Britsch).

 

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Case 1:05-cv-01119-SGB Document 192 Filed 05/18/12 Page 21 of 71



3. Corps’ Failure to Construct Foreshore Protection


137. The United States objects that this proposed finding is offered without any support from

the trial record. The documents cited in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. The United States further objects that the
Corps’ alleged prediction of “dramatic widening” of the MRGO is not a fact relevant to
any element of Plaintiffs’ Fifth Amendment takings claims.

138. The United States objects that this proposed finding is offered without any support from

the trial record. The documents cited in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. The United States further objects that this
proposed finding of fact is not relevant to any element of Plaintiffs’ Fifth Amendment
takings claims.

139. The United States objects that this proposed finding is offered without any support from

the trial record. The documents cited in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. The United States further objects that this
proposed finding of fact is not relevant to any element of Plaintiffs’ Fifth Amendment
takings claims.

140. The United States objects that this proposed finding is offered without any support from

the trial record. The documents cited in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. The United States further objects that this
proposed finding of fact is not relevant to any element of Plaintiffs’ Fifth Amendment
takings claims.

141. The United States objects that this proposed finding is offered without any support from

the trial record. The documents cited in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. The United States further objects that this
proposed finding of fact is not relevant to any element of Plaintiffs’ Fifth Amendment
takings claims.

142. The United States objects that this proposed finding is offered without any support from

the trial record. The documents cited in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. The United States further objects that this
proposed finding of fact is not relevant to any element of Plaintiffs’ Fifth Amendment
takings claims.

 

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Case 1:05-cv-01119-SGB Document 192 Filed 05/18/12 Page 22 of 71

143. The United States objects that this proposed finding is offered without any support from

the trial record. The documents cited in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. The United States further objects that this
proposed finding of fact is not relevant to any element of Plaintiffs’ Fifth Amendment
takings claims.

144. The United States objects that this proposed finding is offered without any support from

the trial record. The documents cited in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. The United States further objects that this
proposed finding of fact is not relevant to any element of Plaintiffs’ Fifth Amendment
takings claims.

145. The United States objects that this proposed finding is offered without any support from

the trial record. The documents cited in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. The United States further objects that this
proposed finding of fact is not relevant to any element of Plaintiffs’ Fifth Amendment
takings claims.

146. The United States objects that this proposed finding is offered without any support from

the trial record. The documents cited in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. The United States further objects that this
proposed finding of fact is not relevant to any element of Plaintiffs’ Fifth Amendment
takings claims.

147. The United States objects that this proposed finding is offered without any support from

the trial record. The documents cited in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. The United States further objects that this
proposed finding of fact is not relevant to any element of Plaintiffs’ Fifth Amendment
takings claims.

148. The United States objects that this proposed finding is offered without any support from

the trial record. The documents cited in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. The United States further objects that this
proposed finding of fact is not relevant to any element of Plaintiffs’ Fifth Amendment
takings claims.

149. The United States objects that this proposed finding is offered without any support from

the trial record. The documents cited in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the

 

22























Case 1:05-cv-01119-SGB Document 192 Filed 05/18/12 Page 23 of 71

Court should disregard this proposed finding. The United States further objects that this
proposed finding of fact is not relevant to any element of Plaintiffs’ Fifth Amendment
takings claims.

150. The United States objects that this proposed finding is offered without any support from

the trial record. The documents cited in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. The United States further objects that this
proposed finding of fact is not relevant to any element of Plaintiffs’ Fifth Amendment
takings claims.

151. The United States objects that this proposed finding is offered without any support from

the trial record. The documents cited in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding.

4. Saltwater Intrusion Destroyed Wetland Buffer


152. The United States opposes this proposed finding of fact. All but one of the documents

cited in support of this finding – SPX.1154 – were not referenced or introduced at trial in
this matter. All of the cited documents (except for SPX.1154) are not part of this trial
record, and the Court should disregard these citations. Further, the estimate of wetlands
loss presented in the draft Ecosystem Restoration Study is, in the explicit language of the
report itself, “especially speculative,” and conflicts with the more precise results of the
peer-reviewed land loss study Dr. Britsch presented in his direct testimony. See Tr. at
971:23-974:11 (Britsch) (discussing SPX.1154 at 1-13) (citing USACE, Habitat Impacts
of the Construction of the MRGO (1999)). Dr. Britsch’s peer-reviewed study, the
plaintiffs’ experts in the Robinson relied upon affirmatively was not challenged during
trial in this case. Dr. Britsch’s more precise study calculates that only 7,087 acres out of
103,870 acres of land lost in the St. Bernard Delta from 1932-2001 is attributable to
MRGO.

In addition, the fact that the United States intends to initiate a comprehensive ecosystem
restoration plan – as set forth in SPX.1154 – provides another reason why the Court
should reject Plaintiffs’ claims because the ecological situation is now vastly different
from the ecological situation upon which Plaintiffs’ experts based their analysis. See
U.S.’ Mem. at 59.

153. The United States agrees that Dr. Britsch provided the cited expert opinion in the

Robinson matter. The parties agree, however, that any increase in salinity resulting from
the MRGO – even if shown to be causally-related to increased flooding on Plaintiffs’
properties – occurred decades ago. See, e.g., Pls.’ Proposed Findings of Fact at 61, Fig. 4
(noting increase in 1962). Like Plaintiffs’ argument about the increased conveyance
capability the MRGO allegedly poses, and like Plaintiffs’ argument about the MRGO’s
alleged impact on wetlands, Plaintiffs failed to present technical or scientific evidence

 

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explaining how an increase of salinity could exist for decades, but not actually result in
increased flooding on their properties until an undefined time within six years of the
filing of their lawsuit.

154. The United States objects that all but two of the documents cited in support of this

finding – Dr. Britsch’s trial testimony at 961:21-22 and SPX 1154 – were not referenced
or introduced at trial in this matter. All of the cited documents (except for Dr. Britsch’s
trial testimony at 961:21-22 and SPX.1154) are not part of this trial record, and the Court
should disregard these citations.



The United States agrees that any increase in salinity resulting from the MRGO – even if
shown to be causally-related to increased flooding on Plaintiffs’ properties – occurred
decades ago. Like Plaintiffs’ argument about the increased conveyance capability the
MRGO allegedly poses, and like Plaintiffs’ argument about the MRGO’s alleged impact
on wetlands, Plaintiffs failed to present technical or scientific evidence explaining how an
increase of salinity could exist for decades, but not actually result in increased flooding
on their properties until an undefined time within six years of the filing of their lawsuit.


155. Agreed. But the graph provides another reason why the Court should reject Plaintiffs’

claims. The graph demonstrates that any increase in salinity resulting from the MRGO –
even if shown to be causally-related to increased flooding on Plaintiffs’ properties –
occurred decades ago. Like Plaintiffs’ argument about the increased conveyance
capability the MRGO allegedly poses, and like Plaintiffs’ argument about the MRGO’s
alleged impact on wetlands, Plaintiffs failed to present technical or scientific evidence
explaining how an increase of salinity could exist for decades, but not actually result in
increased flooding on their properties until an undefined time within six years of the
filing of their lawsuit.

156. Agreed. But the proposed finding of fact provides another reason why the Court should

reject Plaintiffs’ claims because it demonstrates that any increase in salinity resulting
from the MRGO – even if shown to be causally-related to increased flooding on
Plaintiffs’ properties – occurred decades ago. Like Plaintiffs’ argument about the
increased conveyance capability the MRGO allegedly poses, and like Plaintiffs’
argument about the MRGO’s alleged impact on wetlands, Plaintiffs failed to present
technical or scientific evidence explaining how an increase of salinity could exist for
decades, but not actually result in increased flooding on their properties until an
undefined time within six years of the filing of their lawsuit. In addition, the fact that the
salinity levels have decreased since closure of the MRGO in 2009 provides another
reason why the Court should reject Plaintiffs’ claims because the ecological situation is
now vastly different from the ecological situation upon which Plaintiffs’ experts based
their analysis. See U.S.’ Mem. at 59.

157. The United States objects that all but three of the documents cited in support of this

finding – SPX.163, Dr. Britsch’s trial testimony at 899:2-6 and 937:21-23, and SPX.1154
– were not referenced or introduced at trial in this matter. All of the cited documents

 

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(except for SPX.163, Dr. Britsch’s trial testimony at 899:2-6 and 937:21-23, and
SPX.1154) are not part of this trial record, and the Court should disregard these citations.

In addition, the proposed finding of fact provides another reason why the Court should
reject Plaintiffs’ claims because it demonstrates that any increase in salinity resulting
from the MRGO – even if shown to be causally-related to increased flooding on
Plaintiffs’ properties – occurred decades ago. Like Plaintiffs’ argument about the
increased conveyance capability the MRGO allegedly poses, and like Plaintiffs’
argument about the MRGO’s alleged impact on wetlands, Plaintiffs failed to present
technical or scientific evidence explaining how an increase of salinity could exist for
decades, but not actually result in increased flooding on their properties until an
undefined time within six years of the filing of their lawsuit

158. Agreed. The United States objects, however, that all but one of the documents cited in
support of this finding – Robinson JX-195 – were not referenced or introduced at trial in
this matter. All of the cited documents (except for Robinson JX-195) are not part of this
trial record, and the Court should disregard these citations. In addition, the testimonial
statements to which Plaintiffs cite represent inadmissible hearsay.

159. Agreed. However, the United States objects that all but one of the documents cited in

support of this finding – Robinson JX-195 – were not referenced or introduced at trial in
this matter. All of the cited documents (except for Robinson JX-195) are not part of this
trial record, and the Court should disregard these citations.



160. The United States objects that all but one citation offered in support of this finding – Dr.
Kemp’s trial testimony at 263:6-264:3 and 521:22-25 – were not referenced or introduced
at trial in this matter. All of the offered citations (except for Dr. Kemp’s trial testimony
at 263:6-264:3 and 521:22-25) are not part of this trial record, and the Court should
disregard these citations.

161. The United States opposes this proposed finding of fact, which the trial record does not

support and which mischaracterizes the pre-MRGO environment in the St. Bernard
Polder. The first sentence of this proposed finding of fact is offered without citation, and
therefore is offered without support from the trial record. The remainder of this proposed
finding of fact is offered without any support from the trial record. The documents cited
in support of this finding were not referenced or introduced at trial in this matter. These
materials are not part of this trial record, and the Court should disregard this proposed
finding. In addition, several of the documents referenced are the product of non-parties,
and therefore represent inadmissible hearsay.

This proposed finding also contradicts the actual evidence presented at trial, which
proved that the St. Bernard Polder was a net land loss environment before the MRGO’s
construction, that significant wetlands loss in the Golden Triangle area adjacent to the
most populous part of the Polder took place before the MRGO and was the result of
natural forces, and that a combination of land loss, subsidence, and sea level rise is

 

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largely responsible for changes in the tides and flooding in the region. See Britsch Test.
at 3, 12-19, 29.

162. Agreed. But the proposed finding of fact provides another reason why the Court should
reject Plaintiffs’ claims because it demonstrates that any “changes to the area” – even if
shown to be causally-related to increased flooding on Plaintiffs’ properties – occurred
decades ago. Plaintiffs failed to present technical or scientific evidence explaining how
these “changes to the area” could exist for decades, but not actually result in increased
flooding on their properties until an undefined time within six years of the filing of their
lawsuit.


163. Agreed. But the proposed finding of fact provides another reason why the Court should

reject Plaintiffs’ claims. Robin testified that “since Katrina[,] there’s no more ridges.
There’s no more trees. It’s plain.” Tr. at 631:18-20 (Robin). This testimony suggests
that these changes to the geographic features are likely the result of natural forces –
primarily Hurricane Katrina – not the MRGO. See U.S.’ Mem. at 75.

164. The United States opposes this proposed finding of fact, an assertion of technical opinion

which was none of the experts in this case addressed. Further, all but two of the
documents cited in support of this finding – SPX.163 and SPX.1154 – were not
referenced or introduced at trial in this matter. All of the cited documents (except for
SPX.163 and SPX.1154) are not part of this trial record, and the Court should disregard
these citations. In addition, several of the documents referenced are the product of non-
parties, and therefore represent inadmissible hearsay.

165. The United States opposes this proposed finding of fact, an assertion of technical opinion

which was none of the experts in this case addressed, and which the trial record
contradicts. The trial evidence proved that the St. Bernard Polder was a net land loss
environment before the MRGO’s construction, that significant wetlands loss in the
Golden Triangle area adjacent to the most populous part of the Polder took place before
the MRGO as a result of natural forces, and that a combination of land loss, subsidence,
and sea level rise are largely responsible for changes in the tides and flooding in the
region. See Britsch Test. at 3, 12-19, 29. Furthermore, all but three of the citations
offered in support of this finding – SPX.1154, Dr. Kemp’s trial testimony, and
Estopinal’s trial testimony – were not referenced or introduced at trial in this matter. All
of the cited materials (except for SPX.1154, Dr. Kemp’s trial testimony, and Estopinal’s
trial testimony) are not part of this trial record, and the Court should disregard them.

166. The United States objects that this proposed finding is offered without any support from

the trial record. These materials are not part of this trial record, and the Court should
disregard this proposed finding. The statements quoted in the proposed finding also
represent inadmissible hearsay. Further, this proposed finding, which concerns the
United States’ purported knowledge of the effects of salinity upon freshwater wetlands is
not relevant to any element of Plaintiffs’ Fifth Amendment Takings claims.

 

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Case 1:05-cv-01119-SGB Document 192 Filed 05/18/12 Page 27 of 71

167. The United States objects that this proposed finding is offered without any support from

the trial record. The documents cited in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. Further, this proposed finding, which
concerns the United States’ purported knowledge of the effects of salinity upon
freshwater wetlands is not relevant to any element of Plaintiffs’ Fifth Amendment
Takings claims.

168. The United States objects that this proposed finding is offered without any support from

the trial record. The documents cited in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. Further, these out-fo-court statements of
non-parties represent inadmissible hearsay. In addition, this proposed finding, which
concerns the United States’ purported knowledge of the effects of salinity upon
freshwater wetlands is not relevant to any element of Plaintiffs’ Fifth Amendment
Takings claims.

169. The United States objects that this proposed finding is offered without any support from

the trial record. The documents cited in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. Further, this proposed finding, which
concerns the United States’ purported knowledge of the effects of salinity upon
freshwater wetlands is not relevant to any element of Plaintiffs’ Fifth Amendment
Takings claims.

170. The United States objects that this proposed finding is offered without any support from

the trial record. The documents cited in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. Further, this proposed finding, which
concerns the United States’ purported knowledge of the effects of salinity upon
freshwater wetlands is not relevant to any element of Plaintiffs’ Fifth Amendment
Takings claims.


E.

Scope of MRGO’s Destruction of Wetland Buffer

171. The United States objects that this proposed fact finding is vague, misleading, and
overstates the role of the MRGO in causing land loss in the St. Bernard Polder. Dr.
Britsch’s peer-reviewed study, which the plaintiffs’ expert in Robinson relied upon
affirmatively, and was not challenged during trial in this case, calculates that only 7,087
acres out of 103,870 acres of land lost in the St. Bernard Delta from 1932-2001 is
attributable to MRGO. Further, all but one of the documents cited in support of this
finding – SPX.704 – were not referenced or introduced at trial in this matter. All of the
cited documents (except for SPX.704) are not part of this trial record, and the Court
should disregard these citations.

 

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Case 1:05-cv-01119-SGB Document 192 Filed 05/18/12 Page 28 of 71

In addition, this proposed finding of fact is one of several reasons why the Court should
reject Plaintiffs’ claims. The unrebutted evidence established that the most significant
portion of the land loss in the St. Bernard Delta occurred during a time contemporaneous
with the construction of the MRGO, or immediately thereafter. See U.S.’ Mem. at 77
n.31. Plaintiffs failed to present any technical or scientific evidence explaining how the
condition which they allege is the cause of flooding on their properties could exist for
decades, but not actually result in increased flooding on their properties until an
undefined time within six years of the filing of their lawsuit.

172. The United States objects that this proposed finding is offered without any support from

the trial record. The documents cited in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. In addition, Mr. Gagliano’s out-of-court
statements constitute inadmissible hearsay. Finally, this proposed finding, which
concerns the United States’ purported knowledge of the effects of the MRGO on
wetlands is not relevant to any element of Plaintiffs’ Fifth Amendment Takings claims.

173. The United States objects that this proposed finding is offered without any support from

the trial record. The documents cited in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. In addition, the conclusions of the Coast
2050 report and Mr. Gagliano’s out-of-court statements constitute inadmissible hearsay.

174. The United States objects that this proposed finding is offered without any support from

the trial record. The documents cited in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. In addition, out-of-court statements cited
constitute inadmissible hearsay.

175. The United States agrees that Dr. Britsch testified that of 103,870 acres lost in the St.

Bernard Delta since 1932, only 7,087 acres– approximately seven percent – was directly
attributable to the MRGO.

176. Agreed.

177. The United States objects that this proposed finding of fact is inaccurate. The trial record

thoroughly contradicts the proposed finding. Contrary to the proposed finding of fact,
when Dr. Britsch was asked about the significance of the pre-MRGO land loss, he
testified that:


I think the relevance of the 1932 data being on this map is to show
that land loss was occurring prior to the construction of the MRGO
as part of the natural process of the destruction of deltaic systems.
So I think it does serve a purpose to illustrate that land loss didn’t
just start occurring when the MRGO was constructed. It was

 

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Case 1:05-cv-01119-SGB Document 192 Filed 05/18/12 Page 29 of 71

occurring prior to the MRGO and it’s going to continue on into the
future. It’s a natural process.


Tr. at 915:10-18 (Britsch). Plaintiffs’ assertion that “Dr. Britsch was unable to explain
the significance of comparing losses caused by the MRGO since 1958 with losses caused
by other processes since 1932” is wrong.

In addition, all but one of citations offered in support of this finding – Dr. Britsch’s trial
testimony – were not referenced or introduced at trial in this matter. None of the cited
materials (except for Dr. Britsch’s trial testimony) are part of this trial record, and the
Court should disregard these citations.

178. The United States agrees that Dr. Britsch presented land loss maps focusing on a smaller
area for his expert report in Robinson. This was entirely appropriate. The Robinson case
concerned different Plaintiffs, related to properties located in different locations, and
focused on different legal issues. As Dr. Britsch explained at trial, the underlying land
loss study he performed focused more broadly on the entire Louisiana coast and pre-dates
this litigation. See Tr. at 895:16-896:7 (Britsch); id. at 979:4-9 (Britsch). Dr. Britsch
presented a larger area for the Court’s consideration in this case because “it does a good
job of illustrating the location of the property that we’re talking about in relation to the
St. Bernard delta as a whole.” Id. at 979:15-19 (Britsch). Dr. Britsch explained that “this
area is experiencing a lot of land loss, some of which is related to MRGO, but most of
which is not. Lots of erosion, lots of shoreline loss, very close proximity to large open
bodies of water.” Id. at 979:18-22 (Britsch). “[B]ecause the Plaintiffs’ properties were
spread out over quite a large area,” Dr. Britsch appropriately “wanted to make sure [he]
incorporated areas that [he] thought were influencing the tides and the water levels in
those areas.” Id. at 979:22-980:1 (Britsch).


179. The United States objects that this proposed finding is incomplete and misleading. Dr.

Britsch stated that he participated in the work that ultimately is reflected in some portions
of the MRGO Ecosystem Restoration Plan Draft EIS – the “geologic input.” Tr. at
931:21-932:2 (Britsch). Dr. Britsch clarified that he did not agree the MRGO caused all
of the loss of swamp and marsh habitats discussed in the cited document. See id. at
933:23-24 (Britsch). In addition, all but one of the documents cited in support of this
finding – Dr. Britsch’s trial testimony – were not referenced or introduced at trial in this
matter. All of the cited documents (except for Dr. Britsch’s trial testimony) are not part
of this trial record, and the Court should disregard these citations.

180. Agreed.

181. Agreed. Dr. Britsch testified at trial that the calculations of loss presented in the Draft
EIS vacillate between a discussion of “land converting to water” and “habitat loss.” Tr.
at 938:21-23 (Britsch). To the extent that the Draft EIS presents calculations of actual
land loss, it draws from a 1999 EPA-commissioned study that on its face acknowledges
that its “very rough estimates” of loss are, in the explicit language of the report itself,

 

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“especially speculative.” See SPX.1154, Appendix V (USACE, Habitat Impacts of the
Construction of the MRGO (1999)); see also SPX.0773 at 52 (“The estimate of increased
land loss is especially speculative”). These speculative estimates made for purposes of
justifying broad environmental remediation projects are contradicted by the precise
results of the peer-reviewed land loss study Dr. Britsch presented in his direct testimony,
and upon which the Robinson Plaintiffs’ relied in their trial presentation in that matter.
See Tr. at 972:14-974:11.

182. Agreed. As Dr. Britsch pointed out at trial, the 1999 EPA-commissioned study presents
only “very rough estimates” of loss that are, in the explicit language of the report itself,
“especially speculative.” See SPX 1154, Appendix V (Habitat Impacts of the
Construction of the MRGO (USACE, 1999); see also SPX 0773 at 52 (“The estimate of
increased land loss is especially speculative”). The precise results of the peer-reviewed
land loss study Dr. Britsch presented in his direct testimony -- the study the plaintiffs’
experts in Robinson relied upon affirmatively -- contradict these speculative estimates
made for purposes of justifying broad environmental remediation projects. See Tr. at
972:14-974:11 (Britsch).

183. The United States objects that this proposed finding of fact relies entirely upon

documents that were not referenced or introduced at trial, and are therefore not part of the
trial record in this case. The Court should disregard this proposed finding for that reason.
The United States also notes that several of the documents cited in this paragraph refer to
estimates of “habitat conversion,” which is not land loss, and which estimates are not
comparable to Dr. Britsch’s calculations of land converted to water. See, e.g., Tr. at
951:9-24 (Britsch). Finally, each of these third-party documents represent inadmissible
hearsay which the Court may not consider.

184. The United States objects that this proposed finding of fact is incomplete and misleading.
When questioned about saltwater intrusion, Dr. Britsch stated that “saltwater intrusion . . .
leads to habitat change and may contribute somewhat to land loss, but that was more of a
habitat change thing we were talking about in the previous trial [i.e., the Robinson case].”
Tr. at 906:23-907:1 (Britsch). Dr. Britsch’s focus in this case was on land loss, as
opposed to habitat change, because “that’s what is most important in affecting the
hydrology of the area.” Id. at 907:1-4 (Britsch).

185. Agreed.

186. The United States objects to this proposed finding of fact. The trial record thoroughly
contradicted this proposed finding. Dr. Britsch agreed that the widening of the MRGO
was responsible for a certain amount of erosion and land loss immediately adjacent to the
channel. See Britsch Test. at 20:13-15. But Dr. Britsch’s peer-reviewed land loss study,
conducted years before litigation in this case commenced, determined that the majority of
the total land loss occurring in the St. Bernard Delta resulted from several other non-
MRGO processes, and has been accelerating over time since long before the MRGO was
constructed. See id. at 3-4, 6-25; DX 208, Fig. 2. Plaintiffs’ experts did not perform any

 

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Case 1:05-cv-01119-SGB Document 192 Filed 05/18/12 Page 31 of 71

work or present any opinions that are contrary to Dr. Britsch’s land loss work. Indeed,
the plaintiffs in the Robinson matter, whose trial presentation the Plaintiffs here rely on
heavily, did not criticize but instead adopted and relied upon Dr. Britsch’s land loss work
in that case. See Robinson JX-195 at 5-1 (“The data for landloss calculations were
derived from multiple USACE landloss maps by Britsch and Dunbar”).

187. The United States objects that this proposed finding of fact is incomplete and misleading

in that it suggests that the cited 1972 report contradicts Dr. Britsch’s trial opinion. Dr.
Britsch did not present expert opinions about the destruction of habitat, and discussed
subsidence in terms of its effect on flooding. Specifically, Dr. Britsch opined that the
combination of subsidence and sea level rise are critical factors that expose Plaintiffs’
low elevation properties to the possibility of flooding. See, e.g., Tr. at 991:10-17
(Britsch) (“In the sense that the land is sinking and sea levels are rising, I estimated a half
a foot in the last 50 years. Half a foot may not seem like a lot of change, but in areas that
are only slightly above sea level, a half a foot can make the difference between whether
your land is flooded or not. So that can be a big difference.”).

188. The United States agrees that Dr. Britsch did not attempt to quantify habitat change in the

St. Bernard Polder. The United States observes that Plaintiffs, who bear the burden of
proof in this case, did not provide any expert analysis on this issue. Dr. Britsch did
observe that the calculations in the Draft MRGO Ecosystem Restoration Study
Environmental Impact Statement were self-described as “estimates,” and were not
comparable to the scientific work that underlies his calculations of land loss. See Tr. at
972:7-973:21 (Britsch). The Draft Environmental Impact Statement also relies upon the
speculative conclusions of a 1999 EPA-commissioned study which states that “it is
difficult to know the exact location of habitats 35 years ago” and that its “estimate of
increased land loss is especially speculative.” SPX.773 at 45, 52.

Separately, the assertion that Dr. Britsch was part of the “project delivery team that
verified the accuracy of the draft EIS’s estimates,” is inaccurate and misleading. Dr.
Britsch testified that he provided geologic input to that draft report. See Tr. at 932:2.
Plaintiffs’ citation to the trial transcript at 941:13-16 provides only Plaintiffs’ counsel’s
assertion, and not Dr. Britsch’s agreement, that Dr. Britsch was involved in “verifying”
the “quantification of MRGO impacts.” Dr. Britsch did not agree that he was involved in
verifying the calculations in the draft EIS, which are drawn from a 1999 EPA-
commissioned report that Dr. Britsch was not involved with. See id. at 942:11-18
(Britsch); 943:12-22 (Britsch).

189. The United States objects that this proposed finding is offered without any support from

the trial record. The documents cited in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. In addition, each of these third-party
documents represent inadmissible hearsay that the Court may not consider.

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F.

MRGO Funnel

190. The United States objects that all but one of the citations offered in support of this finding

– Dr. Kemp’s trial testimony – were not referenced or introduced at trial in this matter.
All of the cited documents (except for Dr. Kemp’s trial testimony) are not part of this
trial record, and the Court should disregard these citations. In addition, the third party
statements that Plaintiffs cite constitute inadmissible hearsay.


191. The United States objects that all but one of the citations offered in support of this finding

– Dr. Kemp’s trial testimony – were not referenced or introduced at trial in this matter.
All of the cited documents (except for Dr. Kemp’s trial testimony) are not part of this
trial record, and the Court should disregard these citations. In addition, the third party
statements that Plaintiffs cite constitute inadmissible hearsay.

192. The United States opposes this proposed finding of fact. The United States objects that

all but two of the citations offered in support of this finding – the citations to Dr. Kemp’s
trial testimony and SPX.479 – were not referenced or introduced at trial in this matter.
All of the cited materials (except for Dr. Kemp’s trial testimony and SPX.479 (offered as
Robinson JX-195)) are not part of this trial record, and the Court should disregard these
citations.

This proposed finding of fact is also one of several reasons why the Court should reject
Plaintiffs’ claims. To the extent the MRGO acts as a “funnel,” that has been the case
since the construction of the MRGO, or immediately thereafter. Plaintiffs failed to
present any technical or scientific evidence explaining how the condition which they
allege is the cause of flooding on their properties could exist for decades, but not actually
result in increased flooding on their properties until an undefined time within six years of
the filing of their lawsuit.


193. The United States objects that this proposed finding is offered without any support from

the trial record. The documents cited in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. In addition, the third party statements that
Plaintiffs cite constitute inadmissible hearsay.



This proposed finding of fact is also one of several reasons why the Court should reject
Plaintiffs’ claims. To the extent the MRGO acts as a “funnel,” that has been the case
since the construction of the MRGO, or immediately thereafter. Plaintiffs failed to
present any technical or scientific evidence explaining how the condition which they
allege is the cause of flooding on their properties could exist for decades, but not actually
result in increased flooding on their properties until an undefined time within six years of
the filing of their lawsuit.


194. The United States opposes this proposed finding of fact. Plaintiffs’ arguments related to
the alleged funnel effect cannot prove a takings claim because the funnel effect condition

 

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no longer exists. Plaintiffs’ expert, Dr. Kemp, explained that, in analyzing his alleged
funnel effect on storm surge in New Orleans, Reach 1 of the MRGO was critical because
it connected Lake Pontchartrain and Lake Borgne hydrologically and therefore allowed
surge from both lakes to theoretically enter the Industrial Canal. See Tr. at 251:12-19
(Kemp). But Dr. Kemp conceded that, with the construction of the surge barrier in 2011,
that hydrological connectivity has been cut off. See id. at 252:15 (Kemp); id. at 253:3
(Kemp) (opining that the surge barrier “would make the Dutch proud”). In other words,
Plaintiffs admit that the funnel effect on which their claim is premised has been redressed
and is no longer a factor in flooding within the hurricane protection system.



This proposed finding of fact is also one of several reasons why the Court should reject
Plaintiffs’ claims. To the extent the MRGO acts as a “funnel,” that has been the case
since the construction of the MRGO, or immediately thereafter. Plaintiffs failed to
present any technical or scientific evidence explaining how the condition which they
allege is the cause of flooding on their properties could exist for decades, but not actually
result in increased flooding on their properties until an undefined time within six years of
the filing of their lawsuit.


195. The United States objects that this proposed finding is offered without any support from

the trial record. The documents cited in support of this finding were not introduced at
trial in this matter. These materials are not part of this trial record, and the Court should
disregard this proposed finding. In addition, the third party statements that Plaintiffs cite
constitute inadmissible hearsay.

The United States opposes this proposed finding of fact. Plaintiffs’ arguments related to
the alleged funnel effect cannot prove a takings claim because the funnel effect condition
no longer exists. Plaintiffs’ expert, Dr. Kemp, explained that, in analyzing his alleged
funnel effect on storm surge in New Orleans, Reach 1 of the MRGO was critical because
it connected Lake Pontchartrain and Lake Borgne hydrologically and therefore allowed
surge from both lakes to theoretically enter the Industrial Canal. See Tr. at 251:12-19
(Kemp). But Dr. Kemp conceded that, with the construction of the surge barrier in 2011,
that hydrological connectivity has been cut off. See id. at 252:15 (Kemp); id. at 253:3
(Kemp) (opining that the surge barrier “would make the Dutch proud”). In other words,
Plaintiffs admit that the funnel effect on which their claim is premised has been redressed
and is no longer a factor in flooding within the hurricane protection system.

This proposed finding of fact is also one of several reasons why the Court should reject
Plaintiffs’ claims. To the extent the MRGO acts as a “funnel,” that has been the case
since the construction of the MRGO, or immediately thereafter. Plaintiffs failed to
present any technical or scientific evidence explaining how the condition which they
allege is the cause of flooding on their properties could exist for decades, but not actually
result in increased flooding on their properties until an undefined time within six years of
the filing of their lawsuit.



 

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Case 1:05-cv-01119-SGB Document 192 Filed 05/18/12 Page 34 of 71

196. The United States opposes this proposed finding of fact. Dr. Suhayda conceded that this

calculation constituted a previously undisclosed expert opinion. See Tr. at 723:4-10
(Suhayda). This testimony is inadmissible. U.S.’ Mem. at 69 n.30.

The proposed finding of fact is also inaccurate, as Dr. Suhayda’s calculation does not
relate to the actual MRGO or speak to the MRGO’s alleged role in causing flooding on
Plaintiffs’ properties. Dr. Suhayda’s calculation is based on hypothetical dimensions of
the MRGO, not particular measurements of the channel at or near any Plaintiff’s property
and incorporates hypothetical values for the hydraulic variables. See Suhayda Test. At
27 n.8. The calculation does not measure increased flooding on Plaintiffs’ properties, but
instead merely purports to state how much water a channel with the hypothetical
dimensions Dr. Suhayda assumes might potentially carry. See Tr. at 722:23-25
(Suhayda) (describing footnote eight as a “conveyance calculation” which “doesn’t talk
about actual flooding”). The calculation does not demonstrate how and if water will
leave the MRGO channel and migrate onto Plaintiffs’ properties. See id. at 722:23-24
(Suhayda) (“[T]his doesn’t talk about actual flooding.”). Nor does the calculation
provide any support for the conclusion that the MRGO has caused, or will cause, flooding
on Plaintiffs’ properties. See id. at 723:1-3 (Suhayda) (acknowledging that his
calculation does not attempt to prove what flooding might be). See also id. at 1077:13-21
(Resio) (emphasizing that conveyance can increase without an increase in surge
elevation); id. at 494:19-25 (Kemp) (agreeing that increased surge and conveyance does
not necessarily mean increased flooding).

This proposed finding of fact is also one of several reasons why the Court should reject
Plaintiffs’ claims. To the extent the MRGO acts as a “funnel,” that has been the case
since the construction of the MRGO, or immediately thereafter. Plaintiffs failed to
present any technical or scientific evidence explaining how the condition which they
allege is the cause of flooding on their properties could exist for decades, but not actually
result in increased flooding on their properties until an undefined time within six years of
the filing of their lawsuit.

197. The United States objects to this proposed finding which the trial record does not support.

Apart from Dr. Britsch’s trial testimony, all of the cited materials were not referenced or
introduced at trial in this matter. All of the cited documents (except for Dr. Britsch’s trial
testimony) are not part of this trial record, and the Court should disregard these citations.
In addition, the third party statements that Plaintiffs cite constitute inadmissible hearsay.









 

In addition, Plaintiffs’ citation of Dr. Britsch’s trial testimony is incomplete and
misleading. In the transcript pages upon which this proposed finding of fact is based, Dr.
Britsch was asked whether “a bit of rain or a bit of wind, everything else held equal”
would “create some flooding in an area like this.” Tr. at 982:16-18 (Britsch). Dr. Britsch
answered “Certainly. In an area where you’re living or that’s slightly above or near sea
level, slight [fluctuations] in the tide or due to winds or storms make a big difference in
the amount of flooding in the land area.” Id. at 982:19-23 (Britsch).

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Dr. Britsch was then asked if it would “make a difference to that phenomenon whether or
not there was a shipping channel in the area?” Tr. at 982:24-983:1 (Wilson). Dr. Britsch
answered: “Obviously the shipping channel may contribute to the speed at which tides
come in and out, but again, this area was tidal before. It experienced fluctuations due to
across Lake Borgne storms and all the hydrologic influence due to all the land loss that
occurred prior to MRGO.” Id. at 983:2-7 (Britsch).

Finally, Plaintiffs’ arguments related to the alleged funnel effect cannot prove a takings
claim because the funnel effect condition no longer exists. Plaintiffs’ expert, Dr. Kemp,
explained that, in analyzing his alleged funnel effect on storm surge in New Orleans,
Reach 1 of the MRGO was critical because it connected Lake Pontchartrain and Lake
Borgne hydrologically and therefore allowed surge from both lakes to theoretically enter
the Industrial Canal. See Tr. at 251:12-19 (Kemp). But Dr. Kemp conceded that, with
the construction of the surge barrier in 2011, that hydrological connectivity has been cut
off. See id. at 252:15 (Kemp); id. at 253:3 (Kemp) (opining that the surge barrier “would
make the Dutch proud”). In other words, Plaintiffs admit that the funnel effect on which
their claim is premised has been redressed and is no longer a factor in flooding within the
hurricane protection system.

198. The United States objects that all but one of the citations offered in support of this finding

– SPX.705 – were not referenced or introduced at trial in this matter. All of the cited
documents (except for SPX.705) are not part of this trial record, and the Court should
disregard these citations. In addition, all of these third-party statement represent
inadmissible hearsay.

199. The United States objects to the proposed finding as irrelevant. The conclusions of the

Bretschneider and Collins study, conducted before the construction of the hurricane
protection system, do not relate to the elements of Plaintiffs’ takings claim. Even if the
MRGO contributed to an increase in surge elevation, if the final surge elevation does not
surpass the height of the hurricane protection system, any increase in surge has no effect
on flooding to Plaintiffs’ properties. See id. at 494:19-25 (Kemp). Dr. Kemp admits that,
even in situations where the combination of the MRGO and the protective levees might
contribute to higher storm surge, if the levees are built to an appropriate height, that
heightened surge does not translate necessarily into additional flooding; it is simply a
factor for which levee designers need to account. See id. at 257:15-258:1 (Kemp).

200. The United States objects to the proposed finding as irrelevant. The conclusions of the

Bretschneider and Collins study, conducted before the construction of the hurricane
protection system, do not relate to the elements of Plaintiffs’ takings claim. Even if the
MRGO contributed to an increase in surge elevation, if the final surge elevation does not
surpass the height of the hurricane protection system, any increase in surge has no effect
on flooding to Plaintiffs’ properties. See id. at 494:19-25 (Kemp). Dr. Kemp admits that,
even in situations where the combination of the MRGO and the protective levees might
contribute to higher storm surge, if the levees are built to an appropriate height, that

 

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heightened surge does not translate necessarily into additional flooding; it is simply a
factor for which levee designers need to account. See id. at 257:15-258:1 (Kemp).

201. The United States objects that all but one of the citations offered in support of this finding

– Dr. Kemp’s trial testimony – were not referenced or introduced at trial in this matter.
All of the cited materials (except for Dr. Kemp’s trial testimony) are not part of this trial
record, and the Court should disregard these citations. Plaintiffs did not present any
evidence establishing the alleged knowledge at trial, but even if true, this alleged
knowledge is irrelevant to the Court’s analysis. See Cary v. United States, 552 F.3d 1373
(Fed. Cir. 2009).

202. The United States objects to the proposed finding as irrelevant. The Corps of Engineers’
policy choices are not germane to the legal elements Plaintiffs must prove to establish a
taking. The legal framework in this case requires that the Court presume the government
action about which Plaintiffs’ complain was authorized. See Del-Rio Drilling Programs
Inc. v. United States, 146 F.3d 1358, 1362 (Fed. Cir. 1998) (“A compensable taking
arises only if the government action in question is authorized.”).

203. The United States objects to the proposed finding as irrelevant. The Corps of Engineers’
policy choices are not germane to the legal elements Plaintiffs must prove to establish a
taking. The legal framework in this case requires that the Court presume the government
action about which Plaintiffs’ complain was authorized. See Del-Rio Drilling Programs
Inc. v. United States, 146 F.3d 1358, 1362 (Fed. Cir. 1998) (“A compensable taking
arises only if the government action in question is authorized.”).

204. The United States objects to the proposed finding as irrelevant. The Corps of Engineers’
policy choices are not germane to the legal elements Plaintiffs must prove to establish a
taking. The legal framework in this case requires that the Court presume the government
action about which Plaintiffs’ complain was authorized. See Del-Rio Drilling Programs
Inc. v. United States, 146 F.3d 1358, 1362 (Fed. Cir. 1998) (“A compensable taking
arises only if the government action in question is authorized.”).


G. MRGO’s Promotion of Levee-Destroying Waves

205. The United States objects to the proposed finding which the trial record does not support.

The evidence proved conclusively that no Plaintiff’s property within the hurricane
protection system flooded on any occasion other than Hurricane Katrina. See U.S.’
Mem. at 12-24 (collecting testimony of all Plaintiffs concerning non-Katrina flooding).
In addition, the citations offered in support of this proposed finding are not part of the
trial record in this case, and the Court should disregard them.


206. The United States objects to the proposed finding which the trial record does not support.

Plaintiffs have conceded that their wave analysis is flawed and suffers from
methodological deficiencies. In addition, the proposed finding is irrelevant to the
elements Plaintiffs must prove to sustain a taking claim. “Taking a calculated risk, or

 

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even increasing a risk of a detrimental result, does not equate to making the detrimental
result direct, natural, or probable.” Cary, 552 F.3d at 1378.


207.

The United States objects that all but one of the citations offered in support of this finding
– Dr. Kemp’s trial testimony – were not referenced or introduced at trial in this matter.
The cited documents (except for Dr. Kemp’s trial testimony) are not part of this trial
record, and the Court should disregard these citations. In addition, the third-party
statements referenced constitute inadmissible hearsay which the Court may not consider.
The United States agrees that under some circumstances, “wave height increases with
water depth and ‘fetch’ – the expanse of water over which wind blows to generate
waves.”


208. The United States agrees that the construction and subsequent erosion of the MRGO
between 1958-2001 converted approximately 7,087 acres of land to open water. See
Britsch Test. at 20:13-15. The United States objects to the vague and misleading
assertion that “large waves” can propagate in the footprint of the MRGO. Plaintiffs lead
wave modeler in Robinson, Dr. Vriling, admitted that the wave modeling methodology
plaintiffs used in that case, and on which Plaintiffs rely here, overestimated the growth of
waves across the MRGO channel. See U.S.’ Mem. at 51-56.


209. The United States agrees that wave wash caused the MRGO to expand. Britsch Test. at

20:13-15. The trial record, however, does not support the assertion that the channel’s
fetch “increased dramatically.” Plaintiffs lead wave modeler in Robinson, Dr. Vriling,
admitted that the wave modeling methodology plaintiffs used in that case, and on which
Plaintiffs rely here, overestimated the growth of waves across the MRGO channel. See
U.S.’ Mem. at 51-56. And Dr. Britsch explained that the measurements underlying the
“2000 foot width” referenced in Dr. Kemp’s testimony are erroneously derived by
tacking onto the actual erosion measurements the measured width of waterbodies that
pre-date the construction of the MRGO. See Tr. at 974:12-978:3 (Britsch). In addition,
Robinson JX-195 demonstrates conclusively that the vast majority of the MRGO channel
widening occurred well before 1985. See Robinson JX-195 at pdf. 132-35. Plaintiffs
failed to present technical or scientific evidence explaining how the condition which they
allege is the cause of flooding on their properties could exist for decades, but not actually
result in increased flooding on their properties until an undefined time within six years of
the filing of their lawsuit.



In addition, the United States objects that all but one of the citations offered in support of
this finding – Dr. Kemp’s trial testimony – were not referenced or introduced at trial in
this matter. All of the cited documents (except for Dr. Kemp’s trial testimony) are not
part of this trial record, and the Court should disregard these citations.


210. The United States objects that this proposed finding is offered without any support from
the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the

 

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Court should disregard this proposed finding. This proposed finding is also entirely
irrelevant to the Plaintiffs’ Fifth Amendment takings claims.


211. The United States objects that this proposed finding is offered without any the trial

record. The citations offered in support of this finding were not referenced or introduced
at trial in this matter. These materials are not part of this trial record, and the Court
should disregard this proposed finding.

The United States further objects that the trial evidence did not demonstrate that the
MRGO “destroyed the defensive line of vegetation that once stood between the channel
and the levee.” Instead the evidence showed that most of the land loss in the area
between the Reach 2 levee and the MRGO took place before the construction of the
MRGO, and was primarily the result of a 1947 hurricane. See SPX.704 at 106; Britsch
Test. at 12 (DX 208, Figure 2); 29:5-7 (“[L]arge areas of land loss north of the 40 Arpent
Levee near Bayou Bienvenue were attributed to erosion during a 1947 hurricane.”).  
 
Furthermore, the United States agrees with Plaintiffs that any increase in salinity
resulting from the MRGO – even if shown to be causally-related to increased flooding
on Plaintiffs’ properties – occurred decades ago. Like Plaintiffs’ argument about the
increased conveyance capability posed by the MRGO, and like Plaintiffs’ argument
about the impact on wetlands, Plaintiffs failed to present technical or scientific evidence
explaining how an increase of salinity could exist for decades, but not actually result in
increased flooding on their properties until an undefined time within six years of the
filing of their lawsuit.


H. MRGO’s Promotion of Lateral Displacement

 

212. The United States objects that all but one of the citations offered in support of this finding
– Dr. Britsch’s trial testimony – were not referenced or introduced at trial in this matter.
The cited materials (except for Dr. Britch’s trial testimony) are not part of this trial
record, and the Court should disregard these citations. In addition, the out-of-court
testimonial statement that Plaintiffs reference constitutes inadmissible hearsay which the
Court may not consider. The United States agrees that the general rate of natural
subsidence in the St. Bernard Delta is approximately 5 to 6 millimeters per year.


213. The United States objects that this proposed finding of fact is irrelevant and misleading.
As Dr. Britsch testified at trial, the subsidence rate in the St. Bernard Delta is also higher
than many parts of Southeastern Louisiana, including the north shore of Lake
Ponchartrain, and the coast in the area of Grand Isle. See Tr. at 992:12-17 (Britsch). Dr.
Britsch also explained that subsidence rates are relevant to flooding “relative to the
elevation of the land features you’re talking about, or the property.” Id. at 992:19-21.
“Right on the edge of the delta . . . .with water a stone’s throw away,” “small changes in
relative sea levels have an impact.” Id. at 993:2-4 (Britsch).



 

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214. The United States objects that this proposed finding is offered without any support from
the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. The statements offered also represent
inadmissible hearsay which the Court may not consider.


215. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. Further, the testimonial statement that
Plaintiffs reference constitutes inadmissible hearsay which the Court may not consider.
Finally, the United States also objects that this proposed finding of fact is not relevant to
any element of Plaintiffs’ Fifth Amendment takings claims.


216. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. Further, the testimonial statements that
Plaintiffs reference constitutes inadmissible hearsay which the Court may not consider.
Finally, the United States also objects that this proposed finding of fact is not relevant to
any element of Plaintiffs’ Fifth Amendment takings claims.


217. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. Further, the testimonial statements that
Plaintiffs reference constitutes inadmissible hearsay which the Court may not consider.
Finally, the United States also objects that this proposed finding of fact is not relevant to
any element of Plaintiffs’ Fifth Amendment takings claims


218. The United States objects that all but one of the citations offered in support of this finding

– Mr. Estopinal’s trial testimony – were not referenced or introduced at trial in this
matter. All of the cited materials (except for Mr. Estopinal’s trial testimony) are not part
of this trial record, and the Court should disregard these citations. Further, Mr.
Estopinal’s Fed. R. Evid 701 lay testimony does not support the proposed scientific
conclusion that “dredging of the MRGO along the channel’s southern bank exacerbated
lateral displacement.” In addition, the testimonial statement that Plaintiffs reference
constitutes inadmissible hearsay which the Court may not consider. The United States
also objects that this proposed finding of fact is not relevant to any element of Plaintiffs’
Fifth Amendment takings claims.


219. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. Further, the testimonial statements that

 

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Plaintiffs reference constitute inadmissible hearsay which the Court may not consider.
The United States also objects that this proposed finding of fact is not relevant to any
element of Plaintiffs’ Fifth Amendment takings claims.


220. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. Further, the third-party statements that
Plaintiffs reference constitute inadmissible hearsay which the Court may not consider.
The United States also objects that this proposed finding of fact is not relevant to any
element of Plaintiffs’ Fifth Amendment takings claims.


221. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. Plaintiffs did not present any evidence
establishing the alleged knowledge at trial, but even if true, this alleged knowledge is
irrelevant to the Court’s analysis. See Cary v. United States, 552 F.3d 1373 (Fed. Cir.
2009).


222. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. Further, the testimonial statements that
Plaintiffs reference constitute inadmissible hearsay which the Court may not consider.
The United States also objects that this proposed finding of fact is not relevant to any
element of Plaintiffs’ Fifth Amendment takings claims.

The Flood Protection System (FPS)

I.


223. The United States agrees that the pre-Hurricane Katrina federal levee system could not

fully protect Greater New Orleans from flooding given certain storm conditions.
Residual risk exists with all protection systems. Regardless of theoretical risks, the trial
record conclusively establishes that no Plaintiff’s property within the hurricane protection
system flooded on any occasion other than Hurricane Katrina. See U.S.’ Mem. at 12-24
(collecting testimony of all Plaintiffs concerning non-Katrina flooding).


224. The United States objects that this proposed finding of fact, concerning the Corps’
“representations” regarding the adequacy of the pre-Hurricane Katrina federal levee
system, is irrelevant to any element of Plaintiffs’ Fifth Amendment takings claims.


225. The United States agrees with the statements asserted, but objects that this proposed

finding of fact is misleading and irrelevant to any element of Plaintiffs’ Fifth Amendment
takings claim. The trial record conclusively establishes that no Plaintiff’s property within
the hurricane protection system flooded on any occasion other than Hurricane Katrina.

 

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See U.S.’ Mem. at 12-24 (collecting testimony of all Plaintiffs concerning non-Katrina
flooding).


226. The United States objects that all but one of the citations offered in support of this finding

– PX 169 – were not referenced or introduced at trial in this matter. All of the cited
materials (except for PX 169) are not part of this trial record, and the Court should
disregard these citations. In addition, the United States objects that these proposed
findings of fact, which concern the Corps’ evaluation of the pre-Hurricane Katrina levee
system, are irrelevant to any element of Plaintiffs’ Fifth Amendment takings claim. The
trial record conclusively establishes that no Plaintiff’s property within the hurricane
protection system flooded on any occasion other than Hurricane Katrina. See U.S.’
Mem. at 12-24 (collecting testimony of all Plaintiffs concerning non-Katrina flooding).

The United States objects that all but one of the citations offered in support of this finding
– SPX.169 – were not referenced or introduced at trial in this matter. All of the cited
materials (except for SPX.169) are not part of this trial record, and the Court should
disregard these citations. In addition, the third-party statements that Plaintiffs reference
constitute inadmissible hearsay which the Court may not consider. Finally, the United
States objects that this proposed finding of fact is misleading and irrelevant to any
element of Plaintiffs’ Fifth Amendment takings claim. The trial record conclusively
establishes that no Plaintiff’s property within the hurricane protection system flooded on
any occasion other than Hurricane Katrina. See U.S.’ Mem. at 12-24 (collecting
testimony of all Plaintiffs concerning non-Katrina flooding).


228. The United States objects that this proposed finding is offered without any support from


227.

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. The United States also objects that this
proposed finding of fact is misleading, and mischaracterizes the sources cited, which do
not reflect the asserted “Government admission.”

In addition, Plaintiffs’ proposed finding provides one of several reasons why the Court
should reject Plaintiffs’ claims. As discussed in the United States’ Post-Trial Brief, the
proposition that the flooding that occurred during Hurricane Katrina was due to
inadequate levees supports the United States’ position, not Plaintiffs’ position. See U.S.’
Mem. at 65.






1. FPS Design Flaws


229. Agreed. The citations offered in support of this finding, however, were not referenced or

introduced at trial in this matter. For the reasons stated in the United States’ Motion to

 

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Exclude and the Joint Exhibit List, these materials are not part of this trial record, and the
Court should disregard this proposed finding.


230. The United States objects to the proposed finding, which is irrelevant to Plaintiffs’ Fifth

Amendment takings claim.

231. The United States objects that all but one of the citations offered in support of this finding

– SPX.169 – were not referenced or introduced at trial in this matter. All of the cited
materials (except for SPX.169) are not part of this trial record, and the Court should
disregard these citations. The United States also objects because the proposed finding is
irrelevant to Plaintiffs’ Fifth Amendment takings claim.

232. The United States objects to the proposed finding. The finding is irrelevant to Plaintiffs’

Fifth Amendment takings claim.

233. The United States objects that this proposed finding, as it bears on the Corps’ alleged
failure to improve the design of the pre-Hurricane Katrina levee system in response to
new information about storms, is irrelevant to any element of Plaintiffs’ Fifth
Amendment takings claim. In addition, the proffered citation to Dr. Kemp’s testimony
does not support the proposition advanced.
2. Standard Project Hurricane

234. Agreed. The United States objects that all but two of the citations offered in support of

this finding – Dr. Suhayda’s trial testimony and SPX 169 – were not referenced or
introduced at trial in this matter. All of the cited materials (except for Dr. Suhayda’s trial
testimony and SPX.169) are not part of this trial record, and the Court should disregard
these citations.


235. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding.


236. The United States objects that all but two of the citations offered in support of this
finding – Dr. Suhayda’s trial testimony and Dr. Resio’s trial testimony– were not
referenced or introduced at trial in this matter. All of the cited materials (except for Dr.
Suhayda’s trial testimony and Dr. Resio’s trial testimony) are not part of this trial record,
and the Court should disregard these citations. The United States also objects that the
Corps’ public statements regarding the adequacy of the pre-Katrina levee system are
irrelevant to any element of Plaintiffs’ Fifth Amendment takings claim.


237. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. The finding is also irrelevant to the
Plaintiffs’ Fifth Amendment takings claim.

 

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238. The United States objects that all but one of the citations offered in support of this finding

– SPX.169– were not referenced or introduced at trial in this matter. All of the cited
materials (except for SPX.169) are not part of this trial record, and the Court should
disregard these citations. The finding is also irrelevant to the Plaintiffs’ Fifth
Amendment takings claim.

239. The United States objects that all but two of the citations offered in support of this

finding – Dr. Suhayda’s trial testimony and SPX.169 – were not referenced or introduced
at trial in this matter. All of the cited materials (except for Dr. Suhayda’s trial testimony
and SPX.169) are not part of this trial record, and the Court should disregard these
citations. The finding is also irrelevant to the Plaintiffs’ Fifth Amendment takings claim.

240. The United States agrees that Plaintiffs have quoted Dr. Resio’s White Paper correctly.

The finding, however, is irrelevant to the Plaintiffs’ Fifth Amendment takings claim.

241. The United States objects to the proposed finding which is irrelevant to Plaintiffs’ Fifth

Amendment takings claim.

242. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. In addition, these materials constitute
inadmissible hearsay which the Court may not consider.

243. The United States agrees with the fact asserted in the first sentence of paragraph 243.
With respect to the remainder of the paragraph, the United States objects because the
citations offered in support of this finding were not referenced or introduced at trial in
this matter. These materials are not part of this trial record, and the Court should
disregard this proposed finding. The finding is also irrelevant to Plaintiffs’ Fifth
Amendment takings claim. The trial record conclusively establishes that no Plaintiff’s
property within the hurricane protection system flooded on any occasion before
Hurricane Katrina. See U.S.’ Mem. at 12-24 (collecting testimony of all Plaintiffs
concerning non-Katrina flooding).

244. The United States objects that all but one of the citations offered in support of this finding

– SPX.169 – were not referenced or introduced at trial in this matter. All of the cited
materials (except for SPX.169) are not part of this trial record, and the Court should
disregard these citations. The finding is also irrelevant to Plaintiffs’ Fifth Amendment
takings claim. The trial record conclusively establishes that no Plaintiff’s property within
the hurricane protection system flooded on any occasion before Hurricane Katrina. See
U.S.’ Mem. at 12-24 (collecting testimony of all Plaintiffs concerning non-Katrina
flooding).

245. The United States objects that all but one of the citations offered in support of this finding

– SPX.169 – were not referenced or introduced at trial in this matter. All of the cited
materials (except for SPX.169) are not part of this trial record, and the Court should
disregard these citations. The finding is also irrelevant to Plaintiffs’ Fifth Amendment

 

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takings claim. The trial record conclusively establishes that no Plaintiff’s property within
the hurricane protection system flooded on any occasion before Hurricane Katrina. See
U.S.’ Mem. at 12-24 (collecting testimony of all Plaintiffs concerning non-Katrina
flooding).

246. The United States objects that all but one of the citations offered in support of this finding

– SPX.169 – were not referenced or introduced at trial in this matter. All of the cited
materials (except for SPX.169) are not part of this trial record, and the Court should
disregard these citations. The finding is also irrelevant to Plaintiffs’ Fifth Amendment
takings claim. The trial record conclusively establishes that no Plaintiff’s property within
the hurricane protection system flooded on any occasion before Hurricane Katrina. See
U.S.’ Mem. at 12-24 (collecting testimony of all Plaintiffs concerning non-Katrina
flooding).

247. The United States objects that all but one of the citations offered in support of this finding

– SPX.169 – were not referenced or introduced at trial in this matter. All of the cited
materials (except for SPX.169) are not part of this trial record, and the Court should
disregard these citations. The finding is also irrelevant to Plaintiffs’ Fifth Amendment
takings claim. The trial record conclusively establishes that no Plaintiff’s property within
the hurricane protection system flooded on any occasion before Hurricane Katrina. See
U.S.’ Mem. at 12-24 (collecting testimony of all Plaintiffs concerning non-Katrina
flooding).

248. The United States objects that all but one of the citations offered in support of this finding

– SPX.169 – were not referenced or introduced at trial in this matter. All of the cited
materials (except for SPX.169) are not part of this trial record, and the Court should
disregard these citations. The finding is also irrelevant to Plaintiffs’ Fifth Amendment
takings claim. The trial record conclusively establishes that no Plaintiff’s property within
the hurricane protection system flooded on any occasion before Hurricane Katrina. See
U.S.’ Mem. at 12-24 (collecting testimony of all Plaintiffs concerning non-Katrina
flooding).

249. The United States objects that all but one of the citations offered in support of this finding

– SPX.169 – were not referenced or introduced at trial in this matter. All of the cited
materials (except for SPX.169) are not part of this trial record, and the Court should
disregard these citations. The finding is also irrelevant to Plaintiffs’ Fifth Amendment
takings claim. The trial record conclusively establishes that no Plaintiff’s property within
the hurricane protection system flooded on any occasion before Hurricane Katrina. See
U.S.’ Mem. at 12-24 (collecting testimony of all Plaintiffs concerning non-Katrina
flooding).

250. The United States agrees that the SPH turned out to be a stronger storm than originally
modeled. The Unites States objects to Plaintiffs’ reliance upon documents that are not
part of the trial record in this case, and asks that the Court disregard such citations. In
addition, the proposed finding is irrelevant to Plaintiffs’ Fifth Amendment takings claim.



 

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3. Use of the NGVD Vertical Datum

251. Agreed. The proposed finding, however, is irrelevant to Plaintiffs’ Fifth Amendment

takings claim.

252. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. The proposed finding is also irrelevant to
Plaintiffs’ Fifth Amendment takings claim.

253. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. The proposed finding is also irrelevant to
Plaintiffs’ Fifth Amendment takings claim.

254. The United States objects that all but two of the citations offered in support of this

finding – SPX.169 and Dr. Suhayda’s trial testimony – were not referenced or introduced
at trial in this matter. All of the cited materials (except for SPX.169 and Dr. Suhayda’s
trial testimony) are not part of this trial record, and the Court should disregard these
citations. The proposed finding is also irrelevant to Plaintiffs’ Fifth Amendment takings
claim.

255. The United States objects that all but two of the citations offered in support of this

finding – SPX.169 and Dr. Suhayda’s trial testimony – were not referenced or introduced
at trial in this matter. All of the cited materials (except for SPX.169 and Dr. Suhayda’s
trial testimony) are not part of this trial record, and the Court should disregard these
citations. In addition, the United States objects that this proposed finding of fact, which
concerns the Corps’ alleged knowledge of and policies regarding design deficiencies in
the pre-Hurricane Katrina federal levee system, is irrelevant to any element of Plaintiffs’
Fifth Amendment takings claims.

256. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. In addition, the United States objects that
this proposed finding of fact, which concerns the Corps’ alleged policies regarding design
deficiencies in the pre-Hurricane Katrina federal levee system, is irrelevant to any
element of Plaintiffs’ Fifth Amendment takings claims.

257. The United States objects that this proposed finding is offered without any support from

the trial record. These materials are not part of this trial record, and the Court should
disregard this proposed finding. In addition, the United States objects that this proposed
finding of fact, which concerns the Corps’ alleged policies regarding design deficiencies
in the pre-Hurricane Katrina federal levee system, is irrelevant to any element of
Plaintiffs’ Fifth Amendment takings claims.

 

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258. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. For the reasons stated in the United States’ Motion to
Exclude and the Joint Exhibit List, these materials are not part of this trial record, and the
Court should disregard this proposed finding. In addition, the United States objects that
this proposed finding of fact is irrelevant to any element of Plaintiffs’ Fifth Amendment
takings claims. In addition, the United States objects that this proposed finding of fact,
which concerns the Corps’ alleged policies regarding design deficiencies in the pre-
Hurricane Katrina federal levee system, is irrelevant to any element of Plaintiffs’ Fifth
Amendment takings claims.

259. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. In addition, the proposed finding is
irrelevant to any element of Plaintiffs’ Fifth Amendment takings claims.
4. Failure to Account for Subsidence and Degradation of the Wetlands

260. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. In addition, the proposed finding is
irrelevant to any element of Plaintiffs’ Fifth Amendment takings claims.

261. The United States objects that all but two of the citations offered in support of this

finding – SPX.169 and Dr. Suhayda’s trial testimony – were not referenced or introduced
at trial in this matter. All of the cited materials (except for SPX.169 and Dr. Suhayda’s
trial testimony) are not part of this trial record, and the Court should disregard these
citations. The proposed finding is also irrelevant to Plaintiffs’ Fifth Amendment takings
claim.

262. The United States objects that all but two of the citations offered in support of this

finding – SPX.169 and Dr. Suhayda’s trial testimony – were not referenced or introduced
at trial in this matter. All of the cited materials (except for SPX 169 and Dr. Suhayda’s
trial testimony) are not part of this trial record, and the Court should disregard these
citations.

Furthermore, the evidence at trial contradicts the assertion that the MRGO “destr[oyed]
the wetland buffer around Lake Borgne.” To the contrary, un-rebutted, peer-reviewed
study of land loss in the St. Bernard Delta demonstrates that the MRGO was responsible
for only a fraction of the land loss in the vicinity of Lake Borgne. See Britch Test. at
20:13-23 (citing 2001 USACE Land Loss Study). Indeed, un-rebutted evidence
demonstrates that most of the land loss in the immediate vicinity of the Reach 2 Levee
took place before the MRGO’s construction, much of it during a 1947 hurricane. See id.
at 12 (citing DX 208 Fig. 2); id. at 15:5-17:12.

 

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263. The United States agrees that subsidence is a feature for which levee designers must

account.
5. Construction of FPS from Highly Erodible Materials

264. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. The proposed finding is also irrelevant to
Plaintiffs’ Fifth Amendment takings claim.

265. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. The proposed finding is also irrelevant to
Plaintiffs’ Fifth Amendment takings claim.

266. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. The cited report also represents
inadmissible hearsay which the Court may not consider. Finally, the proposed finding is
irrelevant to Plaintiffs’ Fifth Amendment takings claim.

267. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. The cited material also represents
inadmissible hearsay which the Court may not consider. Finally, the proposed finding is
irrelevant to Plaintiffs’ Fifth Amendment takings claim.

268. The United States agrees that the original earthen levee that was built around St. Bernard
Parish did include sand. The United States otherwise objects to the proposed assertions
of fact in paragraph 268, and objects that Plaintiffs rely for these assertions upon
documents and testimony not part of the trial record in this case. Finally, the proposed
finding is irrelevant to Plaintiffs’ Fifth Amendment takings claim.
6. FPS Maintenance

269. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. The cited material also represents
inadmissible hearsay which the Court may not consider. Finally, the proposed finding is
irrelevant to Plaintiffs’ Fifth Amendment takings claim.

270. The United States objects to the first sentence of this proposed finding because it is
offered without citation. With respect to the remainder of the proposed finding, the

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United States objects that all but two of the citations offered in support of this finding –
Dr. Suhayda’s trial testimony and SPX.4 – were not referenced or introduced at trial in
this matter. All of the cited materials (except for Dr. Suhayda’s trial testimony and SPX
4) are not part of this trial record, and the Court should disregard these citations. The
United States notes that the Corps of Engineers’ maintenance of the levee system is
irrelevant to Plaintiffs’ Fifth Amendment takings claim.

271. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. The cited material also represents
inadmissible hearsay which the Court may not consider. Finally, the proposed finding is
irrelevant to Plaintiffs’ Fifth Amendment takings claim.

272. Agreed. The proposed finding, however, is irrelevant to Plaintiffs’ Fifth Amendment

takings claim.
7. Government’s Knowledge of Actual pre-Katrina Level of Flood Protection

273. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. In addition, the proposed finding is
irrelevant to Plaintiffs’ Fifth Amendment takings claim.

274. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. In addition, the proposed finding is
irrelevant to Plaintiffs’ Fifth Amendment takings claim.

275. The United States objects to the proposed finding of fact, which is irrelevant to Plaintiffs’

Fifth Amendment takings claim. In particular, to the extent the proposed finding
suggests otherwise, there is no evidence in the record, and no evidence exists, that the
United States ever collaborated with the LSU Hurricane Center because of its affiliation
with Dr. Kemp.

276. The United States objects that all but one of the citations offered in support of this finding

– Dr. Kemp’s trial testimony – were not referenced or introduced at trial in this matter.
All of the cited materials (except for Dr. Kemp’s trial testimony) are not part of this trial
record, and the Court should disregard these citations. In addition, the proposed finding
is irrelevant to Plaintiffs’ Fifth Amendment takings claim.

277. The United States objects that all but one of the citations offered in support of this finding

– SPX.169 – were not referenced or introduced at trial in this matter. All of the cited
materials (except for SPX.169) are not part of this trial record, and the Court should
disregard these citations. In addition, the proposed finding is irrelevant to Plaintiffs’
Fifth Amendment takings claim.

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278. The United States objects that all but two of the citations offered in support of this

finding – SPX.169 and Park’s trial testimony – were not referenced or introduced at trial
in this matter. All of the cited materials (except for SPX.169 and Park’s trial testimony)
are not part of this trial record, and the Court should disregard these citations. In
addition, virtually all of the referenced material represents third-party out-of-court
statements constituting inadmissible hearsay which they Court may not consider. Finally,
the proposed finding is irrelevant to Plaintiffs’ Fifth Amendment takings claim.

279. The United States agrees that Dr. Suhayda used information prepared in recent years to
conclude that the levees in place at the time of Katrina provided somewhat less than 20-
year protection. As discussed in the United States’ Post-Trial Brief, the proposition that
the flooding that occurred during Hurricane Katrina was due to inadequate levees
supports the United States’ position, not Plaintiffs’ position. See U.S.’ Mem. at 65.

280. The United States agrees that Dr. Resio testified that the “pre-Katrina hurricane

protection system provided much less than 200-year protection,” and that the level of
protection was “in the range” of 50 or 60s years.” Tr. at 1034:10-19 (Resio). As
discussed in the United States’ Post-Trial Brief, the proposition that the flooding that
occurred during Hurricane Katrina was due to inadequate levees supports the United
States’ position, not Plaintiffs’ position. See U.S.’ Mem. at 65.
MRGO and Katrina Flooding

J.
281. The United States agrees with the facts asserted in paragraph 281, but objects that

Plaintiffs refer to a document that is not part of the trial record in this case, and asks that
the Court disregard that citation.

282. The United States agrees that the lockmaster recorded the levels to which Dr. Kemp

testified. Hurricane Katrina was a massive of storm of historic proportions and raised
water levels throughout the entire Gulf of Mexico.

283. The United States agrees that federal hurricane protection levees breached during

Hurricane Katrina, and that breaches of the Reach 1 and Reach 2 portions of the levees
were the primary source of water that flooded the leveed portions of St. Bernard Polder.
The United States objects to Plaintiffs’ confusing reference to the opinions of “experts on
both sides,” which apparently refers to experts on “both sides” of the Robinson v. United
States matter. The United States also objects to Plaintiffs’ citation to documents and
evidence that are not part of the trial record in this case. In addition, the testimonial
statements Plaintiffs cite constitute inadmissible hearsay which the Court may not
consider.
284. Agreed.
285. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding.

 

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286. The United States agrees that there was significant flooding following the overtopping of
the Forty Arpent Levee, but objects that this proposed finding is based upon documents
that are not part of the trial record in this case. The documents Plaintiffs cite in support
of the proposed finding constitute inadmissible hearsay which the Court may not
consider.

287. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. These materials are not part of this trial record, and the
Court should disregard this proposed finding. Flooding through breaches in the IHNC is
also irrelevant to the Plaintiffs’ Fifth Amendment takings claim. Plaintiffs acknowledge
that the breach in the IHNC would have occurred with or without the MRGO. See Tr. at
582:15-20 (Kemp).

288. The United States objects to Plaintiffs’ vague and misleading assertion that “the St.

Bernard Polder is situated on some of the highest land in the area,” which the citation
supplied in paragraph 288 does not support. Dr. Kemp acknowledged that the small
portion of the St. Bernard Polder that he mapped -- the Lower Ninth Ward and the
Chalmette area of St. Bernard Parish -- has many areas with elevations several feet below
sea level, see Tr. at 220:19-24 (Kemp); Kemp Test. at 37, Fig. 2.8. Notably, neither Dr.
Kemp’s testimony nor his expert report contains any consideration of land elevations of
any other region within St. Bernard Parish or the Lower Ninth Ward, see Tr. at 225:7-20
(Kemp); id. at 227:5-14 (Kemp). In fact, Dr. Kemp has neither mapped nor considered
natural elevations of any areas east of Paris Road, where most of Plaintiffs’ properties are
located. See id. at 223:21-224:15 (Kemp).

Uncontradicted evidence introduced at trial demonstrates that the areas in St. Bernard
Parish and the Lower Ninth Ward immediately adjacent to the 40 Arpent Levee, where
flooding was the most severe during Hurricane Katrina, sit at elevations close to five feet
below sea level. See Britsch Test. at 26:12-27:11; DX 208, Fig. 13.

1. Plaintiffs’ Model

289. Agreed.
290. Agreed.
291. The United States objects to the proposed finding as incomplete. The SWAN wave

model on which Plaintiffs relied in Robinson was not the standard (default) version of the
source term combination suggested for use in the SWAN code. See Resio Test. at 22; Tr.
at 420:20-21 (Kemp) (explaining that the plaintiffs in Robinson used a version of “the
same [SWAN] model with a different source term”). Rather, it was a modified version of
the SWAN model that Andre J. van der Westhuysen, a coastal scientist at the Delft
University of Technology in the Netherlands, developed. See Resio Test. at 22-23. But
Dr. van der Westhuysen himself explicitly cautions against using this modified version of
the model for short-fetch scenarios, like the MRGO. See id. at 23 (citing Robinson DX-
1104, van der Westhuysen et al., Nonlinear Saturation-Based Whitecapping Dissipation

 

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in SWAN for Deep & Shallow Water, Coastal Eng’g 54 (2007), pp. 151-170, at 167 (“An
exception to these encouraging results is found over very short dimensionless fetches . . .
where the total spectral energy is significantly overestimated.”)

292. Agreed.
293. The United States acknowledges that the parties models attempted to represent

hydrodynamic phenomena under different scenarios, and that Dr. Kemp opined that
plaintiffs scenario 1 and 2C were the most pertinent to his personal analysis.

294. The United States acknowledges that Dr. Kemp testified consistent with the statements in

the proposed finding. The expert reports cited in the proposed finding represent
inadmissible hearsay upon which the United States may not rely.

295. The United States acknowledges that Dr. Kemp testified consistent with the statements in
the proposed finding. Dr. Kemp’s opinion related to the relationship between the MRGO
and the Chalmette levees, however, is irrelevant to Plaintiffs’ takings claim. The levees
have been replaced and the conditions Dr. Kemp studied no longer exist.

296. The record does not support the proposed finding. The methodology Plaintiffs used to

study levee runup and overtopping are not peer reviewed and have “no documented
successful applications to the problem of interest.” Resio Test. at 23 (quoting DX-193,
Ebersole, et al., Discussion of “Simulated Wave-Induced Erosion of the Miss. River-Gulf
Outlet Levees During Hurricane Katrina” by R. Storesund, R.G. Bea and Y. Huang;
Journal of Waterway, Port, Coastal, and Ocean Eng’g, Vol. 136, No. 3, May/June 2010,
pp. 177-189 at 1 (publication forthcoming)). Dr. Resio emphasized that he was unaware
of a single case other than the plaintiffs’ analysis prepared for litigation in Robinson,
“where a coastal engineer has used the methodology upon which Plaintiffs rely to predict
run-up and overtopping on a levee.” Resio Test. at 24.

297. The record does not support the proposed finding. The methodology Plaintiffs used to

study levee runup and overtopping are not peer reviewed and have “no documented
successful applications to the problem of interest.” Resio Test. at 23 (quoting DX-193,
Ebersole, et al., Discussion of “Simulated Wave-Induced Erosion of the Miss. River-Gulf
Outlet Levees During Hurricane Katrina” by R. Storesund, R.G. Bea and Y. Huang;
Journal of Waterway, Port, Coastal, and Ocean Eng’g, Vol. 136, No. 3, May/June 2010,
pp. 177-189 at 1 (publication forthcoming)). Dr. Resio emphasized that he was unaware
of a single case other than the plaintiffs’ analysis prepared for litigation in Robinson,
“where a coastal engineer has used the methodology upon which Plaintiffs rely to predict
run-up and overtopping on a levee.” Resio Test. at 24.

298. The United States objects to the proposed finding which the trial record does not support

and which is irrelevant to Plaintiffs’ Fifth Amendment takings claim. This argument
cannot prove a takings claim because the funnel effect no longer exists. Plaintiffs’
expert, Dr. Kemp, explained that, in analyzing his alleged funnel effect on storm surge in
New Orleans, Reach 1 of the MRGO was critical because it connected Lake
Pontchartrain and Lake Borgne hydrologically and therefore allowed surge from both

 

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lakes to theoretically enter the Industrial Canal. See Tr. at 251:12-19 (Kemp). But Dr.
Kemp conceded that, with the construction of the surge barrier in 2011, that hydrological
connectivity has been cut off. See id. at 252:15 (Kemp); id. at 253:3 (Kemp) (opining
that the surge barrier “would make the Dutch proud”).

In addition, the expert reports cited in the proposed finding represent inadmissible
hearsay upon which the United States may not rely.

299. The United States objects to the proposed finding which the trial record does not support
and which is irrelevant to Plaintiffs’ Fifth Amendment takings claim. Dr. Kemp admitted
that the plaintiffs’ experts in Robinson concluded that the breach in the IHNC would have
occurred with or without the MRGO. See id. at 582:15-20 (Kemp).

300. The United States acknowledges that Dr. Kemp offered testimony consistent with the

proposed finding, but the trial record does not support the finding. In addition, the expert
reports cited in the proposed finding represent inadmissible hearsay.

301. The record does not support the proposed finding. The methodology Plaintiffs used to

study levee runup and overtopping are not peer reviewed and have “no documented
successful applications to the problem of interest.” Resio Test. at 23 (quoting DX-193,
Ebersole, et al., Discussion of “Simulated Wave-Induced Erosion of the Miss. River-Gulf
Outlet Levees During Hurricane Katrina” by R. Storesund, R.G. Bea and Y. Huang;
Journal of Waterway, Port, Coastal, and Ocean Eng’g, Vol. 136, No. 3, May/June 2010,
pp. 177-189 at 1 (publication forthcoming)). Dr. Resio emphasized that he was unaware
of a single case other than the plaintiffs’ analysis prepared for litigation in Robinson,
“where a coastal engineer has used the methodology upon which Plaintiffs rely to predict
run-up and overtopping on a levee.” Resio Test. at 24.

Further, the figure cited in the proposed finding represents the overtopping rates the
plaintiffs’ experts in Robinson predicted at one point along the IHNC; the figure does not
represent overtopping rates at any other point in the St. Bernard Polder. The figure does
not, for example, provide any insight with respect to the MRGO’s impact on water levels
along any point of the Reach 2 of the MRGO. And as discussed above, because the
United States has installed a surge barrier that prevents storm surge from entering Reach
1, the figure does not provide any insight as to what water levels would be expected at
this precise location along the IHNC in the future. See id. at 252:11-15 (Kemp)
(acknowledging that the hydrological connectivity between Lake Borgne and Reach 1 has
been severed). Most important, Dr. Kemp’s choice of this particular reference point
along the IHNC is meaningless with respect to the Court’s causation inquiry during
Hurricane Katrina. Dr. Kemp admitted that the plaintiffs’ experts in Robinson concluded
that the breach in the IHNC would have occurred with or without the MRGO. See id. at
582:15-20 (Kemp). In sum, Plaintiffs admit that the breaching of the IHNC floodwall,
and the corresponding flooding of the Lower Ninth Ward during Hurricane Katrina,
would have occurred even if the MRGO had never been built.

 

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302. The record does not support the proposed finding. As discussed comprehensively in the

United States post-trial memorandum, Plaintiffs’ wave modeling is flawed and unreliable.
See U.S.’ Mem. at 51-56.

303. The record does not support the proposed finding. The methodology Plaintiffs used to

study levee runup and overtopping are not peer reviewed and have “no documented
successful applications to the problem of interest.” Resio Test. at 23 (quoting DX-193,
Ebersole, et al., Discussion of “Simulated Wave-Induced Erosion of the Miss. River-Gulf
Outlet Levees During Hurricane Katrina” by R. Storesund, R.G. Bea and Y. Huang;
Journal of Waterway, Port, Coastal, and Ocean Eng’g, Vol. 136, No. 3, May/June 2010,
pp. 177-189 at 1 (publication forthcoming)). Dr. Resio emphasized that he was unaware
of a single case other than the plaintiffs’ analysis prepared for litigation in Robinson,
“where a coastal engineer has used the methodology upon which Plaintiffs rely to predict
run-up and overtopping on a levee.” Resio Test. at 24.

304. The record does not support the proposed finding. The methodology Plaintiffs used to

study levee runup and overtopping are not peer reviewed and have “no documented
successful applications to the problem of interest.” Resio Test. at 23 (quoting DX-193,
Ebersole, et al., Discussion of “Simulated Wave-Induced Erosion of the Miss. River-Gulf
Outlet Levees During Hurricane Katrina” by R. Storesund, R.G. Bea and Y. Huang;
Journal of Waterway, Port, Coastal, and Ocean Eng’g, Vol. 136, No. 3, May/June 2010,
pp. 177-189 at 1 (publication forthcoming)). Dr. Resio emphasized that he was unaware
of a single case other than the plaintiffs’ analysis prepared for litigation in Robinson,
“where a coastal engineer has used the methodology upon which Plaintiffs rely to predict
run-up and overtopping on a levee.” Resio Test. at 24.

305. The record does not support the proposed finding. As discussed comprehensively in the

United States post-trial memorandum, Plaintiffs’ wave modeling is flawed and unreliable.
See U.S.’ Mem. at 51-56. In particular, the plaintiffs’ lead wave modeler in Robinson,
Dr. Vriling, admitted that modeling choices did cause the plaintiffs’ wave results to
overpredict wave strength in the MRGO channel during the peak period of Hurricane
Katrina.


306. The record does not support the proposed finding. The methodology Plaintiffs used to

study levee runup and overtopping are not peer reviewed and have “no documented
successful applications to the problem of interest.” Resio Test. at 23 (quoting DX-193,
Ebersole, et al., Discussion of “Simulated Wave-Induced Erosion of the Miss. River-Gulf
Outlet Levees During Hurricane Katrina” by R. Storesund, R.G. Bea and Y. Huang;
Journal of Waterway, Port, Coastal, and Ocean Eng’g, Vol. 136, No. 3, May/June 2010,
pp. 177-189 at 1 (publication forthcoming)). Dr. Resio emphasized that he was unaware
of a single case other than the plaintiffs’ analysis prepared for litigation in Robinson,
“where a coastal engineer has used the methodology upon which Plaintiffs rely to predict
run-up and overtopping on a levee.” Resio Test. at 24.

307. The record does not support the proposed finding. The methodology Plaintiffs used to

study levee runup and overtopping are not peer reviewed and have “no documented

 

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successful applications to the problem of interest.” Resio Test. at 23 (quoting DX-193,
Ebersole, et al., Discussion of “Simulated Wave-Induced Erosion of the Miss. River-Gulf
Outlet Levees During Hurricane Katrina” by R. Storesund, R.G. Bea and Y. Huang;
Journal of Waterway, Port, Coastal, and Ocean Eng’g, Vol. 136, No. 3, May/June 2010,
pp. 177-189 at 1 (publication forthcoming)). Dr. Resio emphasized that he was unaware
of a single case other than the plaintiffs’ analysis prepared for litigation in Robinson,
“where a coastal engineer has used the methodology upon which Plaintiffs rely to predict
run-up and overtopping on a levee.” Resio Test. at 24.

308. The trial record does not support the proposed finding. The methodology Plaintiffs used

to study levee runup and overtopping are not peer reviewed and have “no documented
successful applications to the problem of interest.” Resio Test. at 23 (quoting DX-193,
Ebersole, et al., Discussion of “Simulated Wave-Induced Erosion of the Miss. River-Gulf
Outlet Levees During Hurricane Katrina” by R. Storesund, R.G. Bea and Y. Huang;
Journal of Waterway, Port, Coastal, and Ocean Eng’g, Vol. 136, No. 3, May/June 2010,
pp. 177-189 at 1 (publication forthcoming)). Dr. Resio emphasized that he was unaware
of a single case other than the plaintiffs’ analysis prepared for litigation in Robinson,
“where a coastal engineer has used the methodology upon which Plaintiffs rely to predict
run-up and overtopping on a levee.” Resio Test. at 24.

309. Agreed. The United States objections, however, to Plaintiffs inclusion of material which

is not a part of the trial record and third-party statements that represent inadmissible
hearsay that the Court may not consider.

310. The trial record does not support the proposed finding. The citations offered in support of

this finding were not referenced or introduced at trial in this matter. With the exception
of Dr. Kemp’s testimony, these materials are not part of this trial record, and the Court
should disregard this proposed finding. In addition, the expert report and testimonial
statements that Plaintiffs cite constitute inadmissible hearsay that the Court may not
consider.

2. Dr. Resio’s Criticisms of Plaintiffs’ Model

311. The United States objects to the proposed finding which the record does not support. Dr.

Kemp did not disclose the facts and data necessary to confirm the nature of the wind
model used in association with the plaintiffs’ modeling in Robinson. Dr. Kemp’s
opinions related to, or based on, wind modeling, are inadmissible.

312. The United States objects to the proposed finding which the record does not support. Dr.

Kemp did not disclose the facts and data necessary to confirm the nature of the wind
model used in association with the plaintiffs’ modeling in Robinson. Dr. Kemp’s
opinions related to, or based on, wind modeling, are inadmissible.

313. The United States objects to the proposed finding as irrelevant to the Plaintiffs’ Fifth

Amendment takings claim. Because Dr. Kemp did not disclose the facts and data
necessary to confirm the nature of the wind model used in association with the plaintiffs’

 

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modeling in Robinson, Dr. Kemp’s opinions related to, or based on, wind modeling, are
inadmissible.

314. The United States objects to the proposed finding which the record does not support.
While the parties reached a general agreement regarding the surge heights during the
peak of the storm, the plaintiffs’ wave modeling in Robinson calculated a growth in
waves across the MRGO channel approximately two feet greater than the growth the
United States’ experts calculated. See Resio Test. at 7. As discussed comprehensively in
the United States post-trial memorandum, Plaintiffs’ wave modeling is flawed and
unreliable. See U.S.’ Mem. at 51-56.

315. The United States objects to the proposed finding which the record does not support. The

wind modeling in this case matters precisely because it does affect the surge and wave
results. In particular, the plaintiffs’ lead wave modeler in Robinson, Dr. Vriling, admitted
that modeling choices did cause the plaintiffs’ wave results to overpredict wave strength
in the MRGO channel during the peak period of Hurricane Katrina. See U.S.’ Mem. at
51-56. And unlike surge, for which the parties were able to calibrate their models to
observed and recorded values, there are no objective observations of wave heights, so the
results of wind modeling is of utmost importance to understanding the forces at play.
316. The United States objects to the proposed finding which the record does not support.
Because the features and characteristics of every hurricane are different, however, one
cannot generalize from one storm to another. See, e.g., Tr. at 292:7-10 (Kemp)
(observing that the buffering impact of wetlands does not conform to a precise formula
and “varies from storm to storm”); id. at 483:20-23 (Kemp). Further, the only situation
actually modeled for Hurricane Katrina incorporated levees with the heights and in the
conditions that existed in August 2005. See id. at 296:16-20 (Kemp) (conceding that
none of the modeling conducted in Robinson incorporated the levee system as it stands
presently). But because the physical features on the ground, both natural and man-made,
are significantly different today than they were in August 2005, plaintiffs’ modeling of
the Hurricane Katrina event in Robinson provides no insight into the likelihood of future
flooding within the levee system. Cf. id. at 274:7-18 (Kemp) (explaining that the
Hurricane Pam simulations conducted in 2004 used the best available approximation of
2004 topographical and physical features and agreeing that data representing other points
in time “wouldn’t have been helpful to assess risk in 2004”); id. at 430:2-14 (Kemp)
(agreeing that if the same storm were to attack areas with different geo-physical
characteristics, an observer could expect the storm to impact those areas differently).

Moreover, Dr. Kemp concedes that the conditions about which he was most concerned no
longer exist. In analyzing his alleged funnel effect on storm surge in New Orleans, for
example, Dr. Kemp indicated that Reach 1 of the MRGO was critical because it
connected Lake Pontchartrain and Lake Borgne hydrologically and therefore allowed
surge from both lakes to theoretically enter the Industrial Canal. See Tr. at 251:12-19
(Kemp). But Dr. Kemp concedes that, with the construction of the surge barrier, that
hydrological connectivity has been cut off. See id. at 252:15 (Kemp); id. at 253:3
(Kemp) (opining that the surge barrier “would make the Dutch proud”).

 

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317. The United States objects to the proposed finding which consists of inadmissible and
irrelevant evidence. Dr. Kemp admitted at trial that he did not perform this modeling,
that the modeling was not conducted for purposes of this case, and that the modeling
information did not appear in the expert report he submitted in this matter. See Tr. at
206:25-207:25 (Kemp). The Federal Circuit has cautioned against the admission of
“[c]onclusory expert reports, eleventh hour disclosures, and attempts to proffer expert
testimony without compliance with Rule 26,” Tokai Corp v. Easton Enters., Inc., 632
F.3d 1358, 1366 (Fed. Cir. 2011) (quoting Innogenetics, N.V. v. Abbott Labs., 512 F.3d
1363, 1376 n.4 (Fed. Cir. 2008)), and these modeling results should therefore be ruled
inadmissible. See Tr. at 209:13-17 (Barron) (objecting to admission of these previously
undisclosed models). But even were the Court to consider these model outputs, these
outputs do not provide any information that would allow the Court to draw a conclusion
related to the cause of flooding. Dr. Kemp admitted that his report does not contain any
analysis of the amount of flooding that would have occurred during these hurricanes
without the MRGO. See Tr. at 490:7-10 (Kemp); id. at 491:5-14 (Kemp) (conceding that
Dr. Kemp did not perform any modeling to compare the amount of flooding that would
have occurred during these storms with or without the MRGO).

318. The United States objects to the proposed finding because it is misleading and finds no
support in the trial record. See Tr. at 409:3-410:10 (Kemp) (explaining that the area in
which the MRGO was constructed was brackish marsh characterized by standing water
and coastal grass). At trial, Dr. Kemp admitted that Plaintiffs erred in failing to adjust
wind reduction variables over vegetation as that vegetation became submerged. See Tr.
at 281:17-19 (Kemp) (“Dr. Resio complained . . ., saying that [the vegetation] would go
under water and you shouldn’t apply a reduction once they go under water. He is right.
We shouldn’t have.”).

319. The United States objects to the proposed finding because it is misleading and finds no
support in the trial record. See Tr. at 409:3-410:10 (Kemp) (explaining that the area in
which the MRGO was constructed was brackish marsh characterized by standing water
and coastal grass). At trial, Dr. Kemp admitted that Plaintiffs erred in failing to adjust
wind reduction variables over vegetation as that vegetation became submerged. See Tr.
at 281:17-19 (Kemp) (“Dr. Resio complained . . ., saying that [the vegetation] would go
under water and you shouldn’t apply a reduction once they go under water. He is right.
We shouldn’t have.”).

320. The United States objects to the proposed finding because it is misleading and finds no

support in the trial record. Dr. Resio’s inability to understand the difference in wave
modeling is a reflection of Plaintiffs’ failure to disclose all the information necessary to
properly review their wave model. Further, at trial, Dr. Kemp admitted that Plaintiffs
erred in failing to adjust wind reduction variables over vegetation as that vegetation
became submerged. See Tr. at 281:17-19 (Kemp) (“Dr. Resio complained . . ., saying
that [the vegetation] would go under water and you shouldn’t apply a reduction once they
go under water. He is right. We shouldn’t have.”).

321. Agreed.

 

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322. The United States objects to the proposed finding because the trial record directly

contradicts it. As discussed in the United States’ post-trial memorandum, Dr. Kemp
misunderstands how fetch is calculated in wave models and inaccurately describes waves
in the MRGO as depth-limited. See U.S. ‘ Mem. at 53-54 & n. 22.

323. The United States objects to the proposed finding because the trial record directly

contradicts it. When the plaintiffs in Robinson re-ran their wave models using the default
source term, they observed that wave growth across the MRGO channel was reduced by
approximately a third. See Kemp Test., Ex. 7, at 16; U.S.’ Mem. at 55.

324. Agreed.
325. The United States objects to the proposed finding as irrelevant to Plaintiffs’ Fifth

Amendment takings claim.

326. The United States objects to the proposed finding as irrelevant. The response to which

Plaintiffs refer is not a part of the trial record in this case.

327. The United States objects to the proposed finding as being irrelevant to Plaintiffs’ Fifth

Amendment takings claim. The United States has no burden of proof in this case and
Plaintiffs may not reverse the burden of proof by referencing evidence the United States
presented in another case involving distinct legal and factual elements.

328. The United States objects to the proposed finding as being irrelevant to Plaintiffs’ Fifth

Amendment takings claim. The United States has no burden of proof in this case and
Plaintiffs may not reverse the burden of proof by referencing evidence the United States
may have presented in another forum.
3. IPET and URS Models

329. Agreed.
330. Agreed. The proposed finding of fact, however, is irrelevant to Plaintiffs’ Fifth

Amendment takings claim.

331. The United States objects to the proposed finding which the trial record directly

contradicts. The evidence demonstrates conclusively that Plaintiffs’ SWAN modeling in
Robinson suffers from numerous methodological flaws and produced unreliable results
that overestimate the growth of waves across the MRGO. See U.S.’ Mem. at 51-56.

4. The Government’s Model

332. The United States objects to the proposed finding as being irrelevant to Plaintiffs’ Fifth
Amendment takings claim. Because the conditions the parties modeled in Robinson no
longer exist, those modeling efforts are not probative with respect to the MRGO’s alleged
impact on flooding on Plaintiffs’ properties. Further, the United States has no burden of
proof in this case and Plaintiffs may not reverse the burden of proof by referencing
evidence the United States may have presented in another forum.

 

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333. The United States objects to the proposed finding as inaccurate and misleading. The

United States acknowledges that it calibrated its modeling results in Robinson to account
for objective, observed high-water marks; there is no evidence in the trial record,
however, indicating that this calibration was “arbitrary” or not in accord with standard
modeling practice. Further, because the conditions the parties modeled in Robinson no
longer exist, those modeling efforts are not probative with respect to the MRGO’s alleged
impact on flooding on Plaintiffs’ properties. Critically, the United States has no burden
of proof in this case and Plaintiffs may not reverse the burden of proof by referencing
evidence the United States may have presented in another forum.

334. The United States objects to the proposed finding because the material referenced in it is
not part of the trial record in this case. The material also consists of inadmissible hearsay
which the Court may not consider.

335. The United States objects to the proposed finding because, with the exception of Dr.

Kemp’s testimony, the material referenced in the proposed finding is not part of the trial
record in this case and should be disregarded. In addition, the third-party statements
referenced constitute inadmissible hearsay which the Court may not consider. Further,
because the conditions the parties modeled in Robinson no longer exist, those modeling
efforts are not probative with respect to the MRGO’s alleged impact on flooding on
Plaintiffs’ properties. Critically, the United States has no burden of proof in this case and
Plaintiffs may not reverse the burden of proof by referencing evidence the United States
may have presented in another forum.

336. The United States objects to the proposed finding because, with the exception of Dr.

Kemp’s testimony, the material referenced in the proposed finding is not part of the trial
record in this case and should be disregarded. In addition, the testimonial statements
referenced constitute inadmissible hearsay which the Court may not consider. Further,
because the conditions the parties modeled in Robinson no longer exist, those modeling
efforts are not probative with respect to the MRGO’s alleged impact on flooding on
Plaintiffs’ properties.

337. The United States objects to the proposed finding because none of the material referenced

in the proposed finding is part of the trial record in this case and therefore should be
disregarded. In addition, the testimonial statements referenced constitute inadmissible
hearsay which the Court may not consider. Further, because the conditions the parties
modeled in Robinson no longer exist, those modeling efforts are not probative with
respect to the MRGO’s alleged impact on flooding on Plaintiffs’ properties. Critically,
the United States has no burden of proof in this case and Plaintiffs may not reverse the
burden of proof by referencing evidence the United States may have presented in another
forum.

338. The United States objects to the proposed finding because none of the material referenced

in the proposed finding is part of the trial record in this case and therefore should be
disregarded. In addition, the testimonial statements referenced constitute inadmissible
hearsay which the Court may not consider. Further, because the conditions the parties
modeled in Robinson no longer exist, those modeling efforts are not probative with

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respect to the MRGO’s alleged impact on flooding on Plaintiffs’ properties. Critically,
the United States has no burden of proof in this case and Plaintiffs may not reverse the
burden of proof by referencing evidence the United States may have presented in another
forum.

339. The United States objects to the proposed finding because the material referenced in the

proposed finding is not part of the trial record in this case and therefore should be
disregarded. Further, because the conditions the parties modeled in Robinson no longer
exist, those modeling efforts are not probative with respect to the MRGO’s alleged
impact on flooding on Plaintiffs’ properties. Critically, the United States has no burden
of proof in this case and Plaintiffs may not reverse the burden of proof by referencing
evidence the United States may have presented in another forum.

340. The United States objects to this proposed finding which the trial record directly

contradicts. Dr. Resio explained that the 200-meter grids were capable of accurate
predicting wave activity. See Resio Test. at 18-22. Further, the United States has no
burden of proof in this case and Plaintiffs may not reverse the burden of proof by
referencing evidence the United States may have presented in another forum.

341.

The United States objects to the proposed finding to the extent that it suggests that Dr.
Resio’s direct testimony and cross-examination testimony are contradictory. Dr. Resio
acknowledged the same one-foot wave growth across the MRGO in both examinations.

342. The United States objects to the proposed finding as irrelevant to Plaintiffs’ Fifth

Amendment takings claim. The United States has no burden of proof in this case and
Plaintiffs may not reverse the burden of proof by referencing evidence the United States
may have presented in another forum.
K. MRGO and Non-Katrina Flooding Inside Levees

343. The United States agrees that Hurricane Rita made landfall on September 23, 2005 and
that it was larger than the SPH. The United States object to Plaintiffs’ reliance upon a
document not part of the trial record in this case and asks that the Court disregard this
citation.

344. The United States agrees that at the time Hurricane Rita struck, the pre-Hurricane Katrina

federal hurricane protection system was fundamentally compromised and even a
moderate hurricane was likely to flood Plaintiffs’ unprotected properties.

345. The United States agrees that Hurricane Rita caused flooding in the St. Bernard Polder.
The United States objects to Plaintiffs’ assertion that “many of the properties inside the
levee system that are at issue in this case flooded,” which is a statement the citations
offered does not support, and which finds no support in the trial record. Dr. Kemp’s
unscientific guesses concerning whether certain inside-the-levee properties flooded
before or after Hurricane Katrina, see Kemp Test. at 254-267, are contradicted by the
testimony of the Plaintiffs themselves who testified uniformly that no Plaintiff property
within the hurricane protection system flooded on any occasion other than Hurricane

 

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Katrina. See U.S.’ Mem. at 12-24 (collecting testimony of all Plaintiffs concerning non-
Katrina flooding).

The United States further objects to Plaintiffs’ reliance upon SPX.335, which is a
document outside the trial record in this case, and asks that the Court disregard such
citation.

346. The United States objects to this proposed finding, which the trial record directly

contradicts. Dr. Kemp’s unscientific guesses concerning whether certain inside-the-levee
properties flooded before or after Hurricane Katrina, see Kemp Test. at 254-267 &
Exhibit 8, are inconsistent with the testimony of the Plaintiffs themselves who testified
uniformly that no Plaintiff property within the hurricane protection system suffered
flooding on any occasion other than Hurricane Katrina. See U.S.’ Mem. at 12-24
(collecting testimony of all Plaintiffs concerning non-Katrina flooding).

L. MRGO and Non-Katrina Flooding Outside Levees
347. The United States objects to the assertion that the pre-Hurricane Katrina federal levee

system provided “limited protection to Plaintiffs’ properties inside the levees,” which the
trial record directly contradicts. Plaintiffs testified uniformly that no Plaintiff property
within the hurricane protection sytem suffered flooding on any occasion other than
Hurricane Katrina. See U.S.’ Mem. at 12-24 (collecting testimony of all Plaintiffs
concerning non-Katrina flooding).

The United States agrees that the Plaintiff properties located outside the pre-Hurricane
Katrina federal levee system received no flood protection benefit from that system.

348. The United States objects to this proposed finding of fact which the cited documents do

not support and which is inconsistent with the trial record.

As discussed in the United States’ Post Trial Brief, Plaintiff Robin did not testify that
MRGO has caused increased flooding on his property, but instead specifically identified
Hurricane Katrina as the event that exacerbated the wind-driven flooding he described.
See Tr. at 647:17-648:11 (Robin); id. at 631:15-20 (“all the bayous had ridges where
they had trees and some kind of shrubberies that would protect the wind from getting in
and moving the tides,” but “since Katrina[,] there’s no more ridges. There’s no more
trees. It’s plain.”). Plaintiff Bordelon also testified that it was Hurricane Katrina that
caused increased wind driven flooding on his properties outside the federal levee system.
See SPX.531 (Bordelon Dep. Test.) at 18:1-12.

At trial, Dr. Suhayda acknowledged that his opinion that “MRGO contributes
significantly to flooding” outside the federal hurricane protection system was not based
on an assessment of any measurements, data, or modeling. See U.S.’ Mem. at 68-70. Dr.
Suhayda admitted that these properties would flood even if the MRGO had not been
built, and he conceded that he did not quantify the frequency or extent of that flooding.
Id. at 69.

 

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The United States objects to Plaintiffs’ citation to SPX.1128, which is not part of the trial
record, and in any event, does not support the fact finding proposed in paragraph 348.

349. The United States objects that this proposed fact finding is not supported by the

documents cited, none of which attribute flooding upon any particular Plaintiff properties
to “MRGO’s destruction of buffering wetlands.” The United States also objects to
Plaintiffs’ citation to SPX 1100 which is not part of the trial record in this case. See
United States’ Motion to Exclude, dated Dec. 5, 2011 (ECF #157); Joint Exhibit List,
dated Mar. 23, 2012 (ECF #178).

350. The United States agrees that the MRGO provides a means of conveyance for water to

travel from the Gulf of Mexico to the Bayou Yscloskey area. The trial record also
demonstrates that water traveling from the direction of Breton Sound is easily blown
through back channels and open water bodies southeast of Bayou Yscloskey and that this
route provides the main hydrological connection to the Gulf of Mexico. See Britsch Test.
at 30-31; Tr. at 985:22-987:12 (Britsch) (the area around Bayou Yscloskey “is so open to
the Breton Sound that the main hydraulic connection to the Gulf is through these
waterways, not through the MRGO and this minor connection, one little bitty channel
right here. The dominant influence over this area [is] tides coming from the southeast.”).

In addition, this proposed finding of fact is one of several reasons why the Court should
reject Plaintiffs’ claims. As discussed in the United States’ Post-Trial Brief, to the extent
the MRGO creates a conveyance potential, that has been the case since the construction
of the MRGO, or immediately thereafter. Plaintiffs failed to present any technical or
scientific evidence explaining how the condition which they allege is the cause of
flooding on their properties could exist for decades, but not actually result in increased
flooding on their properties until an undefined time within six years of the filing of their
lawsuit.

351. The United States agrees that Dr. Britsch did not testify that there was “no hydrological

connection” between the MRGO and the area of Hopedale and Bayou Yscloskey.
However, Dr. Britsch did testify that the area of Bayou Yscloskey “is so open to the
Breton Sound that the main hydraulic connection to the Gulf” is through backwater
channels southeast of the MRGO, and “not through the MRGO” itself. Tr. at 985:22-
987:12 (Britsch). He also testified that “the dominant influence over [the Bayou
Yscloskey] area [is] tides coming from the southeast.” Id.

352. The United States agrees that Plaintiff Robin testified that Yscloskey channel has

widened over time. The United States otherwise objects to paragraph 352, which is
apparently based upon the opinion of Dr. Kemp. Dr. Kemp admitted at trial that he did
not perform any analysis to determine how much wider, if at all, Bayou Yscloskey
channel is now relative to its pre-MRGO width. Tr. at 443:12-445:15 (Kemp).

353. The United States objects to this proposed finding of fact, which assumes proof of

“frequent flooding of properties outside the levees.” No such proof is established in the
documents cited, nor was proof of MRGO-related floods outside the federal hurricane

 

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protection system adduced at trial. In addition, the United States objects to Plaintiffs’
citation to SPX 1115 and SPX 1117 which are not part of the trial record in this case.
354. The United States objects to the assertion that the Corps has “observed that the MRGO
increases surge during smaller wind events,” which is not supported by the documents
cited. The United States also objects to Plaintiffs citation to SPX 732, which is not part
of the trial record in this case. See United States’ Motion to Exclude, dated Dec. 5, 2011
(ECF #157); Joint Exhibit List, dated Mar. 23, 2012 (ECF #178).

355. The United States objects to this proposed finding of fact, which is contradicted by the

trial record. Dr. Britsch provided unrebutted testimony at trial that MRGO does not
contribute to flooding in the area of Delacroix. Britsch Test. at 30-31.

356. The United States agrees that MRGO creates a hydrological connection between Lake

Borgne and the communities in close proximity to Bayou Yscloskey. The United States
objects to Plaintiffs’ assertion that this connection alone is sufficient to prove that “the
MRGO’s impact on properties around Bayou Yscloskey” has been to cause frequent and
inevitable flooding on Plaintiffs’ properties, which is a finding that Dr. Kemp performed
no analysis to establish. See U.S.’ Mem. at 68.
M.

Closure of the MRGO

357. The United States agrees that “many persons, organizations, and Government agencies

have called for” MRGO’s closure. The United States objects to the remainder of
paragraph 357, including Plaintiffs’ citation to documents outside the trial record in this
case. See United States’ Motion to Exclude, dated Dec. 5, 2011 (ECF #157); Joint
Exhibit List, dated Mar. 23, 2012 (ECF #178).

358. Agreed.
359. Agreed.
360. Agreed.
361. The United States objects that this proposed finding of fact is misleading and irrelevant to

any of the elements of Plaintiffs’ Fifth Amendment takings claims. The cited testimony
of Dr. Kemp, which faults the rock dam for not blocking the connection between New
Orleans and Lake Borgne, ignores Dr. Kemp’s concession at trial that as of June 1, 2011,
a surge barrier has been installed which does block that connection. See Tr. at 252-253
(Kemp).

362. The United States agrees that the rock dam helps prevent high salinity water from moving
up the MRGO from the Gulf of Mexico, and that it has reduced salinity levels in the Lake
Borgne ecosystem. The United States objects to the remainder of paragraph 362,
including Plaintiffs’citation to a document outside the trial record in this case. See
United States’ Motion to Exclude, dated Dec. 5, 2011 (ECF #157); Joint Exhibit List,
dated Mar. 23, 2012 (ECF #178).

 

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363. The United States objects that Plaintiffs presented no trial evidence establishing any
specific incidents of flooding that would not have taken place absent the MRGO rock
dam closure. The United States further objects to Plaintiffs’ citation to SPX 1057, which
is not part of the trial record in this case. See United States’ Motion to Exclude, dated
Dec. 5, 2011 (ECF #157); Joint Exhibit List, dated Mar. 23, 2012 (ECF #178).

364. The United States objects that Plaintiffs presented no trial evidence establishing any
specific incidents of flooding that would not have taken place absent the MRGO rock
dam closure.

365. The United States objects that Plaintiffs presented no trial evidence establishing any
specific incidents of flooding that would not have taken place absent the MRGO rock
dam closure. Furthermore, as Dr. Britsch testified at trial, water flows back and forth
from Breton Sound through backchannels and waterbodies southeast of the MRGO. Tr.
at 985:22-987:12 (Britsch). Accordingly, as Plaintiff Robin testified, instead of flowing
out of the MRGO channel, any water that makes its way into the MRGO is “making it’s
way out in different areas.” Tr. at 645:18-19 (Robin). The United States further objects
to Plaintiffs’ citation to documents outside the trial record in this case. See United States’
Motion to Exclude, dated Dec. 5, 2011 (ECF #157); Joint Exhibit List, dated Mar. 23,
2012 (ECF #178).

366. The United States objects that this observation by Dr. Kemp does not “confirm” any
instance of flooding on any Plaintiff property that would not have taken place in the
absence of the MRGO rock dam closure.

367. The United States objects that this proposed finding of fact is not supported by the

proffered testimony of Dr. Kemp, which contradicts the Plaintiffs’ own testimony that it
is wind from the southeast that raises water levels on their properties — not wind from
across Lake Borgne. Compare Kemp Test. at 250 (“Winds from the south and southwest
tend t o lower water levels at Shell Beach, while northeast winds tilt the Lake level higher
along the south shore”) with Tr. at 646:26 (Robin) (clarifying that wind moving
northwesterly from the Gulf of Mexico is the wind that he calls a “northeast wind,” and
which puts water on his property); id. at 654:6-655:2 (Robin) (authenticating the
handwritten arrow on DX 1 demonstrating that wind moving northwest from the Gulf
causes water to flow onto his property); DX 1. Furthermore, Dr. Kemp’s evaluation of
this issue is flawed, and demonstrates nothing about any potential role of the rock dam in
regards to flooding events on properties outside the levees.
N.

The Hurricane and Storm Damage Risk Reduction System (HSDRRS)

368. The United States agrees that following Hurricane Katrina, Congress has authorized the

Hurricane and Storm Damage Risk Reduction System, and that it is projected to cost
more than $14 billion. The United States objects that the rest of this proposed fact
finding is argumentative, and relies upon documents not part of the trial record in this
case. See United States’ Motion to Exclude, dated Dec. 5, 2011 (ECF #157); Joint
Exhibit List, dated Mar. 23, 2012 (ECF #178).

 

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369. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. For the reasons stated in the United States’ Motion to
Exclude and the Joint Exhibit List, these materials are not part of this trial record, and the
Court should disregard this proposed finding.

370. Agreed. However, the United States objects to Plaintiffs’ citation to documents

document not part of the trial record in this case. See United States’ Motion to Exclude,
dated Dec. 5, 2011 (ECF #157); Joint Exhibit List, dated Mar. 23, 2012 (ECF #178).

371. Agreed. However, the United States objects to Plaintiffs’ citation to documents

document not part of the trial record in this case. See United States’ Motion to Exclude,
dated Dec. 5, 2011 (ECF #157); Joint Exhibit List, dated Mar. 23, 2012 (ECF #178).
372. The United States agrees that HSDRRS’s design heights account for relative sea level
rise expected to occur over the project’s 50 year lifetime. The United States objects to
the assertion that HSDRRS accounts for “MRGO-caused” lateral displacement which is
not supported by the proffered citations. The United States further objects to Plaintiffs’
citation to PX 1114, which is not part of the trial record in this case. See United States’
Motion to Exclude, dated Dec. 5, 2011 (ECF #157); Joint Exhibit List, dated Mar. 23,
2012 (ECF #178).

373. The United States agrees with this proposed finding of fact, except for the word

“supposedly.” The United States objects to Plaintiffs’ citation to Robinson trial materials
which are not part of the trial record in this case. See United States’ Motion to Exclude,
dated Dec. 5, 2011 (ECF #157); Joint Exhibit List, dated Mar. 23, 2012 (ECF #178).

374. Agreed. However, the United States objects to Plaintiffs’ citation to Robinson trial

materials which are not part of the trial record in this case. See United States’ Motion to
Exclude, dated Dec. 5, 2011 (ECF #157); Joint Exhibit List, dated Mar. 23, 2012 (ECF
#178).

375. The United States agrees that the HSDRRS will provide much more robust flood

protection to properties inside the HSDRRS system. The United States objects to the
remainder of paragraph 375 which is not supported by any evidence presented at trial.

1. Level of Protection the HSDRRS Provides

376. Agreed. However, the United States objects to Plaintiffs’ citation to Robinson trial

materials which are not part of the trial record in this case. See United States’ Motion to
Exclude, dated Dec. 5, 2011 (ECF #157); Joint Exhibit List, dated Mar. 23, 2012 (ECF
#178).

377. Agreed. However the United States objects to Plaintiffs’ citation to SPX 303 which is

not part of the trial record in this case. See United States’ Motion to Exclude, dated Dec.
5, 2011 (ECF #157); Joint Exhibit List, dated Mar. 23, 2012 (ECF #178).

 

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378. Agreed. However the United States objects to Plaintiffs’ citation to SPX 1163-1166

which are not part of the trial record in this case. See United States’ Motion to Exclude,
dated Dec. 5, 2011 (ECF #157); Joint Exhibit List, dated Mar. 23, 2012 (ECF #178).

379. The United States objects to this proposed finding, which is argumentative and

contradicts Dr. Kemp’s assessment that the HSDRRS system provides Greater New
Orleans with “the best perimeter defense in its history.” Tr. at 481:22-25 (Kemp).

380. The United States objects to this proposed finding of fact, which is unsupported by any
evidence in the trial record. Plaintiffs’ expert Dr. Kemp testified to the contrary that the
HSDRRS system was based upon “robust analysis” and provided no technical analyses
suggesting that the current system provides less than 100 year protection. Tr. at 481:8-14
(Kemp). Indeed, Dr. Kemp agreed that the HSDRRS system provides Greater New
Orleans with “the best perimeter defense in its history.” Tr. at 481:22-25 (Kemp).
Plaintiffs presented no evidence to contradict the analysis undertaken by the Corps. The
United States further objects to Plaintiffs’ citation to materials outside the trial record in
this case. See United States’ Motion to Exclude, dated Dec. 5, 2011 (ECF #157); Joint
Exhibit List, dated Mar. 23, 2012 (ECF #178).

381. The United States objects to this proposed finding of fact, which is unsupported by any
evidence in the trial record. Plaintiffs’ expert Dr. Kemp testified to the contrary that the
HSDRRS system was based upon “robust analysis” and provided no technical analyses
suggesting that the current system provides less than 100 year protection. Tr. at 481:8-14
(Kemp). Indeed, Dr. Kemp agreed that the HSDRRS system provides Greater New
Orleans with “the best perimeter defense in its history.” Tr. at 481:22-25 (Kemp).
Plaintiffs presented no evidence to contradict the analysis undertaken by the Corps. The
United States further objects to Plaintiffs’ citation to materials outside the trial record in
this case. See United States’ Motion to Exclude, dated Dec. 5, 2011 (ECF #157); Joint
Exhibit List, dated Mar. 23, 2012 (ECF #178).

382. The United States objects to this proposed finding of fact, which is unsupported by any
evidence in the trial record. Plaintiffs’ expert Dr. Kemp testified to the contrary that the
HSDRRS system was based upon “robust analysis” and provided no technical analyses
suggesting that the current system provides less than 100 year protection. Tr. at 481:8-14
(Kemp). Indeed, Dr. Kemp agreed that the HSDRRS system provides Greater New
Orleans with “the best perimeter defense in its history.” Tr. at 481:22-25 (Kemp).
Plaintiffs presented no evidence to contradict the analysis undertaken by the Corps. The
United States further objects to Plaintiffs’ citation to materials outside the trial record in
this case. See United States’ Motion to Exclude, dated Dec. 5, 2011 (ECF #157); Joint
Exhibit List, dated Mar. 23, 2012 (ECF #178).

383. Agreed.
384. The United States objects to this proposed finding of fact, which is unsupported by any
evidence in the trial record. Plaintiffs’ expert Dr. Kemp testified to the contrary that the
HSDRRS system was based upon “robust analysis” and provided no technical analyses
suggesting that the current system provides less than 100 year protection. Tr. at 481:8-14

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(Kemp). Indeed, Dr. Kemp agreed that the HSDRRS system provides Greater New
Orleans with “the best perimeter defense in its history.” Tr. at 481:22-25 (Kemp).
Plaintiffs presented no evidence to contradict the analysis undertaken by the Corps. The
United States further objects to Plaintiffs’ citation to materials outside the trial record in
this case. See United States’ Motion to Exclude, dated Dec. 5, 2011 (ECF #157); Joint
Exhibit List, dated Mar. 23, 2012 (ECF #178).

385. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. For the reasons stated in the United States’ Motion to
Exclude and the Joint Exhibit List, these materials are not part of this trial record, and the
Court should disregard this proposed finding.

386. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. For the reasons stated in the United States’ Motion to
Exclude and the Joint Exhibit List, these materials are not part of this trial record, and the
Court should disregard this proposed finding.

2. Dr. Suhayda’s Calculation of Level of Protection in Place Prior to

HSDRRS

387. Agreed.
388. The United States agrees that Dr. Suhayda did so testify. But this proposed finding
provides one of several reasons why the Court should reject Plaintiffs’ claims. As
discussed in the United States’ Post-Trial Brief, Dr. Suhayda’s opinion that the flooding
that occurred during Hurricane Katrina was due to inadequate levees supports the United
States’ position, not Plaintiffs’ position. Def.’s Post-Trial Br. at 65 In addition, the
United States notes the Dr. Resio stated that pre-Hurricane Katrina federal levees system
provided a level of protection “in the range of 50 or 60s years.” Tr. at 1034:10-19
(Resio).

389. The United States agrees that Dr. Suhayda concluded that the design SWL “are

consistently about 1.6 times the design SWL.” Suhayda Written Testimony at 17.

390. The United States acknowledges that Dr. Suhayda offered the opinion described in the

proposed finding of fact.

391. The United States agrees that Dr. Suhayda testified that “conservatively speaking, the

pre-Katrina flood protection system provided quite a bit less than 20 year protection for
areas of St. Bernard Parish and the Lower Ninth Ward situated inside the flood protection
system. In addition, this analysis assumes that the pre-Katrina levees would not have
failed or breached during the 20 year flood event.” Suhayda Written Testimony at 19.
But Dr. Suhayda offered no analysis or conclusions about “front-side erosion caused by
waves propagated in the MRGO” as this proposed finding claims, so the proposed finding
of fact is wrong.

 

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392. The United States objects to Plaintiffs’ characterization of what the “Corps itself has
determined” with respect to the “true” 100-year protection offered by the HSDRRS
system, which is a vague and argumentative statement irrelevant to any element of
Plaintiffs’ Fifth Amendment takings claims. The United States agrees that the HSDRRS
system relies upon conservative calculations, and that it provides 100-year protection to
properties within the system in the St. Bernard Polder.

393. The United States agrees that Dr. Suhayda calculated these numbers based on his analysis

of recent data, applied to pre-Katrina levee heights. As discussed in the United States’
Post-Trial Brief, Dr. Suhayda’s opinion that the flooding that occurred during Hurricane
Katrina was due to inadequate levees supports the United States’ position, not Plaintiffs’
position. Def.’s Post-Trial Br. at 65.

394. The United States agrees that Dr. Resio has concluded that the pre-Hurricane Katrina

federal levees system provided a level of protection “in the range of 50 or 60s years.” Tr.
at 1034:10-19 (Resio). As discussed in the United States’ Post-Trial Brief, Dr. Suhayda’s
opinion that the flooding that occurred during Hurricane Katrina was due to inadequate
levees supports the United States’ position, not Plaintiffs’ position. Def.’s Post-Trial Br.
at 65.

395. The United States agrees with the first sentence of paragraph 395. The United States,
however, objects that this proposed finding, which seeks to parse the predicted level of
storm protection offered by the pre-Hurricane Katrina levee system, is irrelevant to any
element of Plaintiffs’ Fifth Amendment takings claims. The trial record established
conclusively that no Plaintiff property inside the pre-Hurricane Katrina levee system
flooded on any occasion other than Hurricane Katrina. See U.S. Op. Post-Trial Br. (ECF
# 181) at 12-24 (collecting testimony of all Plaintiffs concerning non-Katrina flooding).
3. Government Acknowledgments of Level of Protection Prior to HSDRRS
396. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. For the reasons stated in the United States’ Motion to
Exclude and the Joint Exhibit List, these materials are not part of this trial record, and the
Court should disregard this proposed finding. In addition, the United States objects that
this proposed finding is irrelevant to any element of Plaintiffs’ Fifth Amendment takings
claims. The trial record established conclusively that no Plaintiff property inside the pre-
Hurricane Katrina levee system flooded on any occasion other than Hurricane Katrina.
See U.S. Op. Post-Trial Br. (ECF # 181) at 12-24 (collecting testimony of all Plaintiffs
concerning non-Katrina flooding).

397. The United States objects that this proposed finding is irrelevant to any element of

Plaintiffs’ Fifth Amendment takings claims. The trial record established conclusively
that no Plaintiff property inside the pre-Hurricane Katrina levee system flooded on any
occasion other than Hurricane Katrina. See U.S. Op. Post-Trial Br. (ECF # 181) at 12-24
(collecting testimony of all Plaintiffs concerning non-Katrina flooding).

 

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398. The United States objects that this proposed finding is irrelevant to any element of

Plaintiffs’ Fifth Amendment takings claims. The trial record established conclusively
that no Plaintiff property inside the pre-Hurricane Katrina levee system flooded on any
occasion other than Hurricane Katrina. See U.S. Op. Post-Trial Br. (ECF # 181) at 12-24
(collecting testimony of all Plaintiffs concerning non-Katrina flooding). In addition, as
discussed in the United States’ Post-Trial Brief, Dr. Suhayda’s opinion that the flooding
that occurred during Hurricane Katrina was due to inadequate levees supports the United
States’ position, not Plaintiffs’ position. Def.’s Post-Trial Br. at 65.

399. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. For the reasons stated in the United States’ Motion to
Exclude and the Joint Exhibit List, these materials are not part of this trial record, and the
Court should disregard this proposed finding. In addition, the United States objects that
this proposed finding is irrelevant to any element of Plaintiffs’ Fifth Amendment takings
claims. The trial record established conclusively that no Plaintiff property inside the pre-
Hurricane Katrina levee system flooded on any occasion other than Hurricane Katrina.
See U.S. Op. Post-Trial Br. (ECF # 181) at 12-24 (collecting testimony of all Plaintiffs
concerning non-Katrina flooding).

400. The United States objects that all but one of the citations offered in support of this finding

– Dr. Resio’s trial testimony – were not referenced or introduced at trial in this matter.
For the reasons stated in the United States’ Motion to Exclude and the Joint Exhibit List,
all of the cited materials (except for Dr. Resio’s trial testimony) are not part of this trial
record, and the Court should disregard these citations.

401. The United States agrees with this proposed finding, but objects that all but one of the

citations offered in support of this finding – SPX 8 – were not referenced or introduced at
trial in this matter. For the reasons stated in the United States’ Motion to Exclude and the
Joint Exhibit List, all of the cited materials (except for SPX 8) are not part of this trial
record, and the Court should disregard these citations.

402. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. For the reasons stated in the United States’ Motion to
Exclude and the Joint Exhibit List, these materials are not part of this trial record, and the
Court should disregard this proposed finding. In addition, the United States objects that
this proposed finding is irrelevant to any element of Plaintiffs’ Fifth Amendment takings
claims. The trial record established conclusively that no Plaintiff property inside the pre-
HSDRRS levee system flooded on any occasion other than Hurricane Katrina. See U.S.
Op. Post-Trial Br. (ECF # 181) at 12-24 (collecting testimony of all Plaintiffs concerning
non-Katrina flooding).

403. The United States agrees with this proposed finding, but objects that all but one of the

citations offered in support of this finding – SPX 8 – were not referenced or introduced at
trial in this matter. For the reasons stated in the United States’ Motion to Exclude and the
Joint Exhibit List, all of the cited materials (except for SPX 8) are not part of this trial

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record, and the Court should disregard these citations. In addition, the United States
objects that this proposed finding is irrelevant to any element of Plaintiffs’ Fifth
Amendment takings claims. The trial record established conclusively that no Plaintiff
property inside the pre-HSDRRS levee system flooded on any occasion other than
Hurricane Katrina. See U.S. Op. Post-Trial Br. (ECF # 181) at 12-24 (collecting
testimony of all Plaintiffs concerning non-Katrina flooding).

404. The United States agrees these witnesses did so testify. However, this proposed finding

is irrelevant to any element of Plaintiffs’ Fifth Amendment takings claims. The trial
record established conclusively that no Plaintiff property inside the pre-HSDRRS levee
system flooded on any occasion other than Hurricane Katrina. See U.S. Op. Post-Trial
Br. (ECF # 181) at 12-24 (collecting testimony of all Plaintiffs concerning non-Katrina
flooding). In addition, as discussed in the United States’ Post-Trial Brief, Dr. Suhayda’s
opinion that the flooding that occurred during Hurricane Katrina was due to inadequate
levees supports the United States’ position, not Plaintiffs’ position. Def.’s Post-Trial Br.
at 65.

405. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. For the reasons stated in the United States’ Motion to
Exclude and the Joint Exhibit List, these materials are not part of this trial record, and the
Court should disregard this proposed finding.

406. The United States objects that this proposed finding is offered without any support from

the trial record. The citations offered in support of this finding were not referenced or
introduced at trial in this matter. For the reasons stated in the United States’ Motion to
Exclude and the Joint Exhibit List, these materials are not part of this trial record, and the
Court should disregard this proposed finding.

O. MRGO Ecosystem Restoration Plan
407. The United States objects that the proposed ecosystem restoration plan is not aimed
solely at restoring wetlands “that the MRGO destroyed.” The Draft Environmental
Impact Statement Plaintiffs cite states that its purpose is to remedy “natural flow and
drainage patterns,” impacted by “a complex levee system throughout the area, drainage
channels, pipelines and other utilities, roadways,” in addition to navigation channels,
including the MRGO. SPX 1154 at ES-1-2, S.2.

408. Agreed.
409. The United States agrees that the currently proposed MRGO Ecosystem Restoration Plan

includes a freshwater diversion component that would divert freshwater from the
Mississippi River into the marsh areas surrounding Lake Borgne, and that it would
operate year-round at 1000 cfs, except during the months of April and May, when it
would operate at 7,000 cfs. SPX 1154 at 2-41.

410. Agreed. However, The United States further objects to Plaintiffs’ citation to several

documents which are not part of the trial record in this case. See United States’ Motion

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to Exclude, dated Dec. 5, 2011 (ECF #157); Joint Exhibit List, dated Mar. 23, 2012 (ECF
#178).

411. The United States agrees that the MRGO Ecosystem Restoration plan recommends the
construction of marsh creation projects in the Golden Triangle, Shell Beach, Hopedale
and Delacroix areas. The United States objects to Plaintiffs’ citation to SPX 131 and
SPX 206 which are not part of the trial record in this case. See United States’ Motion to
Exclude, dated Dec. 5, 2011 (ECF #157); Joint Exhibit List, dated Mar. 23, 2012 (ECF
#178).

412. The United States agrees that the restoration of wetlands in the area of Lake Borgne may

have positive impacts on reducing storm surge, but notes that the stated goals of the
MRGO Ecosystem Restoration plan in the Draft Environmental Impact Statement cited
by Plaintiffs are to “address the current trend of degradation of the Lake Borgne
ecosystem, support Nationally significant resources, provide a sustainable and diverse
array of fish and wildlife habitats, provide infrastructure protection, and make progress
towards a more sustainable ecosystem.” SPX 1154 at ES-7. The United States further
objects to Plaintiffs’ citation to several documents which are not part of the trial record in
this case. See United States’ Motion to Exclude, dated Dec. 5, 2011 (ECF #157); Joint
Exhibit List, dated Mar. 23, 2012 (ECF #178).





























 

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Submitted respectfully this 18th day of May, 2012,





















































































































































































IGNACIA S. MORENO
Assistant Attorney General

s/ Mark S. Barron
MARK S. BARRON, Trial Attorney
JOSHUA P. WILSON, Trial Attorney
United States Department of Justice
Environment & Natural Resources Division
Natural Resources Section
Post Office Box 663, Ben Franklin Station
Washington, DC 20044-0663
Telephone: 202.305.0490
Facsimile: 202.305.0506
[email protected]
[email protected]

WILLIAM J. SHAPIRO, Trial Attorney
United States Department of Justice
Environment & Natural Resources Division
Natural Resources Section
501 I Street, Suite 9-700
Sacramento, California 95814
Telephone: 916.930.2207
Facsimile: 916.930.2210
[email protected]

OF COUNSEL:

FRED R. DISHEROON
Special Litigation Counsel
United States Department of Justice
Environment & Natural Resources Division
Washington, DC

Counsel for the United States

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