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Page 1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
REPORTED BY:
JOSEPH A. FAIRBANKS, JR., CCR, RPR
CERTIFIED COURT REPORTER #75005
Page 3 Page 5
1 - and - 1 EXAMINATION INDEX
2 THE GILBERT FIRM, LLC 2
3 (BY: ELISA TARA GILBERT, ESQUIRE) 3 EXAMINATION BY: PAGE
4 (BY: BRENDAN R. O'BRIEN, ESQUIRE) 4
5 325 East 57th Street 5 MR. MEUNIER .................................7
6 New York, NY 10022 6 EXHIBIT INDEX
7 212-286-8503 7
8 - and - 8 EXHIBIT NO. PAGE
9 WIEDEMANN & WIEDEMANN 9 Exhibit G.M. 1 ..............................13
10 (BY: KAREN WIEDEMANN, ESQUIRE) 10 Exhibit G.M. 2 ..............................95
11 821 Baronne Street 11 Exhibit G.M. 3 .............................103
12 New Orleans, Louisiana 70113 12 Exhibit G.M. 4A ............................221
13 504-581-6180 13 Exhibit G.M. 4B ............................221
14 14
15 REPRESENTING THE UNITED STATES OF AMERICA: 15
16 UNITED STATES DEPARTMENT OF JUSTICE, 16
17 TORTS BRANCH, CIVIL DIVISION 17
18 (BY: JESSICA SULLIVAN, ESQUIRE) 18
19 (BY: MICELE GREIF, ESQUIRE) 19
20 (BY: KARA MILLER, ESQUIRE) 20
21 (BY: SARA SOJA, ESQUIRE) 21
22 P.O. Box 888 22
23 Benjamin Franklin Station 23
24 Washington, D.C. 20044 24
25 202-616-4289 25
2 (Pages 2 to 5)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
GREGORY MILLER 4/16/2008
Page 6 Page 8
1 STIPULATION 1 A. I'm a senior project manager in our
2 IT IS STIPULATED AND AGREED by and 2 coastal restoration office.
3 among counsel for the parties hereto that the 3 Q. What are the duties and
4 deposition of the aforementioned witness may be 4 responsibilities of that position?
5 taken for all purposes permitted within the 5 A. I'm a team leader for a number of
6 Federal Rules of Civil Procedure, in accordance 6 different coastal restoration projects, under
7 with law, pursuant to notice; 7 several programs, several federal programs: The
8 That all formalities, save reading 8 Coastal Wetlands Planning, Protection and
9 and signing of the original transcript by the 9 Restoration Act; Louisiana Coastal Area;
10 deponent, are hereby specifically waived; 10 Louisiana Coastal Protection and Restoration
11 That all objections, save those as to 11 Authority; um -- the Mississippi River Gulf
12 the form of the question and the responsiveness 12 Outlet Deep Draft Deep Draft De-authorization
13 of the answer, are reserved until such time as 13 Study; Mississippi River Gulf Outlet Ecosystem
14 this deposition, or any part thereof, is used 14 Restoration Effort, and an emerging project
15 or sought to be used in evidence. 15 called the Violet Diversion.
16 16 Q. How long have you worked for the Corps
17 17 of Engineers?
18 * * * 18 A. Approximately eight years.
19 19 Q. And who was your immediate supervisor?
20 20 A. Mr. Troy Constance.
21 21 Q. What is his job title?
22 JOSEPH A. FAIRBANKS, JR., CCR, RPR, 22 A. It's chief of the coastal restoration
23 Certified Court Reporter in and for the State 23 office.
24 of Louisiana, officiated in administering the 24 Q. And then to whom would he report? Who
25 oath to the witness. 25 is his supervisor?
Page 7 Page 9
1 GREGORY B. MILLER 1 A. Mr. Tom Podany. He's the Chief of the
2 724 Harrison Avenue, Metairie, Louisiana 70005, 2 Protection and Restoration Office.
3 a witness named in the above stipulation, 3 Q. Do you supervise people here at the
4 having been first duly sworn, was examined and 4 Corps in your day-to-day work?
5 testified on his oath as follows: 5 A. I do.
6 MS. SULLIVAN: 6 Q. Who are the people that you supervise?
7 Federal Rules of Civil Procedure 7 Well, let me ask you this: How many people do
8 and the CMOs that are in place. 8 you have supervisory authority, direct
9 EXAMINATION BY MR. MEUNIER: 9 supervisory authority over?
10 Q. Good morning, Mr. Miller. I'm Jerry 10 A. I have direct authority over one
11 Meunier. I represent some of the plaintiffs in 11 individual, one vacant position, and
12 this case. 12 approximately ten or so contract employees.
13 Would you state your name and address, 13 Q. Who is the one individual currently
14 please. 14 here over whom you have supervisory authority?
15 A. I'm Gregory Miller. You want my home 15 A. Ms. Annette Chioma.
16 address? 16 Q. And what is her job position?
17 Q. Yes. 17 A. She's a project manager in the coastal
18 A. 471 Fairway Drive, New Orleans, 18 restoration office.
19 Louisiana 70124. 19 Q. And you say there's another position
20 Q. And you're employed by whom, sir? 20 that's currently vacant over which you would
21 A. The Army Corps of Engineers. 21 have supervision?
22 Q. How long have you worked for the Army 22 A. Yes.
23 Corps of Engineers? 23 Q. What's the title for that position?
24 A. Approximately eight years. 24 A. It's also a project management
25 Q. What's your current job position? 25 position.
3 (Pages 6 to 9)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
GREGORY MILLER 4/16/2008
Page 10 Page 12
1 Q. Okay. How long has that position been 1 Q. Okay. Give me some idea of the
2 vacant? 2 programs that you've recently attended through
3 A. Um -- about four months. 3 the sponsorship of the Corps. What subject
4 Q. Who occupied the position before it 4 areas have been discussed?
5 became vacant? 5 A. Project management professional
6 A. Ms. Cenceria Dalcourt. 6 certification.
7 Q. Tell me a little bit about the 7 Q. Professional certification in what
8 contract positions over which you have 8 area?
9 supervision. Who are they and which 9 A. Project management.
10 contractors are involved? 10 Q. In project management?
11 A. They're all project management 11 A. Yes, sir.
12 positions. 12 Q. But your field of specialization, if
13 You need to know the individual names; 13 you will, is wetlands and coastal erosion? Is
14 is that what you're looking for? 14 that correct?
15 Q. Well, can you name the companies 15 A. Yes, sir.
16 involved in respect to the contracts? 16 Q. So is it fair to say these programs
17 A. They work for a partnership firm 17 that you attend deal with project management in
18 called Evans-Graves that supplies project 18 those specific areas?
19 management support to the Corps of Engineers. 19 A. Well, that was just the last one that
20 Q. Where is Evans-Graves office, 20 I attended. But in general, yeah, they're
21 headquarters office? 21 usually focused on coastal issues, either
22 A. I don't know. 22 locally or nationally.
23 Q. So it's that one entity for whom these 23 Q. Okay. We have been given what appears
24 various contract people work that you 24 to be a summary of your education and
25 supervise? 25 background, et cetera. You've had a chance to
Page 11 Page 13
1 A. That's right. 1 look at this, I suppose.
2 Q. So they all work for the same company, 2 A. Yes, sir.
3 Evans-Graves, as far as you know? 3 Q. Is this current and up to date in all
4 A. As far as I know. That's right. 4 respects, as far as you know?
5 Q. Okay. What's the extent of your 5 A. Relatively, yes.
6 formal education? 6 Q. All right.
7 A. Um -- I have a Master's degree in 7 MR. MEUNIER:
8 marine affairs from the University of Rhode 8 Let me attach as Miller Number 1
9 Island. 9 the witness' background and
10 Q. Do you hold any additional 10 educational summary.
11 certificates that you've obtained since getting 11 (Exhibit G.M. 1 was marked for
12 your Master's? 12 identification and is attached hereto.)
13 A. No. 13 EXAMINATION BY MR. MEUNIER:
14 Q. Do you periodically attend, either 14 Q. Give me some idea, Mr. Miller, of your
15 through the Corps' sponsorship or otherwise, 15 work experience between the time you got your
16 seminars or training programs in your field? 16 Master's and joining the Corps of Engineers,
17 A. Yes. 17 you said roughly what, seven years ago?
18 Q. How often does that happen? 18 A. About eight years ago.
19 A. Roughly once a quarter, maybe. 19 Q. Or eight years ago.
20 Q. Okay. And are these held locally or 20 A. I worked, um -- after finishing my
21 at different places throughout the country? 21 Master's for the National Marine Fisheries
22 A. Various. 22 Service.
23 Q. Are they sponsored by the same entity 23 Q. That's a federal agency?
24 or by different entities? 24 A. Yes.
25 A. Different organizations. 25 Q. Okay. And how long did you work for
4 (Pages 10 to 13)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
GREGORY MILLER 4/16/2008
Page 14 Page 16
1 them? 1 Corps in various projects prior to joining
2 A. Well, at various stages, but after 2 them, is that true?
3 finishing graduate school for approximately 3 A. That is true.
4 five years. 4 Q. Have you always had the same job title
5 Q. All right. And is that called the 5 or position since you've been with the Corps?
6 NMFS? 6 A. No. I, um -- worked originally in the
7 A. Yes. 7 regulatory office here at the district, and
8 Q. And what was your job position or your 8 then approximately six months or so after that
9 job positions with NMFS? 9 became a project manager in our coastal
10 A. A fishery biologist. 10 restoration office, and have held essentially
11 Q. And is that an equivalent to a marine 11 that same position since that time.
12 biologist? Or is there any distinction between 12 Q. Now, are you aware that you've been
13 the two? 13 listed as a witness in this case, the case of
14 A. It's just a position title but, yeah, 14 Robinson and other versus the Corps of
15 roughly equivalent. 15 Engineers?
16 Q. Okay. Just in general, what were your 16 A. I suppose that's why I'm here.
17 job responsibilities for those five years as a 17 Q. Right. And are you aware that the
18 fisheries biologist? 18 subject matter that's been designated for your
19 A. In several different roles, um -- for 19 witness testimony is wetlands?
20 the National Marine Fisheries Service. One was 20 A. I'm just here to answer questions.
21 primarily focused on habitat restoration, 21 Q. Yes, sir. But were you aware before I
22 similar to the work that I do here at the Corps 22 just said that that that's how your subject
23 now. Other roles were Endangered Species Act, 23 area is designated on the witness list?
24 conservation efforts on Pacific salmon, 24 A. I wasn't, actually. There are a
25 Atlantic salmon, see turtles, whales, marine 25 number of different, um -- I guess reasons for
Page 15 Page 17
1 mammal protection. Here in Louisiana I worked 1 me to be here.
2 for the National Marine Fisheries Service here 2 Q. Well, that's what I wanted to unpack a
3 in Louisiana, as well, on habitat conservation, 3 little bit, because wetlands is a little broad.
4 basically review of wetlands development 4 Is it your understanding that the
5 permits, dredge and fill permits, as well as 5 testimony you will offer in this case deals
6 work on coastal restoration project 6 with the relationship between the MRGO and the
7 development. 7 wetlands in general?
8 Q. The five-year period when you worked 8 MS. SULLIVAN:
9 for the NMFS was both here in Louisiana and 9 Objection.
10 elsewhere? 10 But you can answer.
11 A. Yes, sir. 11 A. Um -- I guess, you know, I'm here
12 Q. For how long during that period were 12 because -- I believe that I'm here because of
13 you working outside of Louisiana? 13 my work on the MRGO and also some coastal
14 A. Approximately two to three years. 14 restoration experience.
15 Q. And then for the other couple of years 15 EXAMINATION BY MR. MEUNIER:
16 you were here in Louisiana? 16 Q. When you say work on the MRGO, why
17 A. Yeah. About two and a half years, I'd 17 don't you tell me what you mean by that.
18 say. 18 A. I have been the project manager for
19 Q. In the more recent period you were 19 the reevaluation of the MRGO navigation
20 here in Louisiana. 20 project, as well as the project manager for the
21 A. That's right. 21 deep draft de-authorization of the navigation
22 Q. What did you do after leaving the 22 channel.
23 NMFS? 23 Q. Is that the extent of your work on the
24 A. I joined the Corps of Engineers. 24 MRGO?
25 Q. Now, you have been working with the 25 A. In addition, I've developed, through
5 (Pages 14 to 17)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
GREGORY MILLER 4/16/2008
Page 18 Page 20
1 various teams, some coastal restoration 1 Q. Well, did you talk to Mr. Naomi in
2 projects on the channel. Or adjacent to the 2 anticipation of giving your deposition today?
3 channel, I guess. 3 A. No.
4 Q. Okay. So your understanding about 4 Q. All right. Well, I'm curious as to
5 your role as a witness here is that your 5 what -- when did you meet with Mr. Naomi?
6 testimony will deal with your work as a project 6 A. I believe it was last Thursday, but
7 manager for the reevaluation of the MRGO, 7 I'm not sure. He and I work together on a
8 correct? 8 daily basis.
9 A. That's correct. 9 Q. Yeah. He's a friend of yours?
10 Q. It also will deal with your work as a 10 A. And he was in the office, and --
11 project manager for the deep draft 11 Q. Did you discuss your expected
12 de-authorization? 12 testimony either in this case or in the
13 A. That's correct. 13 deposition today?
14 Q. Or maybe it wasn't as project manager, 14 A. No. Not mine.
15 but your work in connection with the deep draft 15 Q. You discussed his?
16 de-authorization of the MRGO? 16 A. Yeah. He talked about it.
17 A. No, I am the project manager. 17 Q. Did that discussion with Mr. Naomi
18 Q. As the project manager. All right. 18 bear on any of the work you've done in the
19 And thirdly, you mentioned the fact that you 19 areas you mentioned that your testimony
20 have conducted certain coastal restoration 20 pertains to, namely, the reevaluation of the
21 projects for areas adjacent to the MRGO. 21 MRGO, the deep draft de-authorization, or the
22 A. That's right. 22 coastal restoration projects?
23 Q. Are there any other areas besides 23 A. No.
24 those three where you have done work with the 24 Q. Let me begin, Mr. Miller, with just
25 MRGO as to which you believe you will be giving 25 some general terms.
Page 19 Page 21
1 testimony? 1 What is the distinction, if any,
2 A. Not that I'm aware of. 2 between marsh and wetlands?
3 Q. Have you reviewed any documents in 3 A. Well, I guess in general marsh is a
4 connection with getting ready for your 4 type of wetland.
5 deposition today? 5 Q. Marsh is a type of wetland?
6 A. No. 6 A. Yes.
7 Q. Have you had any meetings with 7 Q. What's your definition of wetlands?
8 individuals, than counsel for the United States 8 A. I guess I don't have a formal
9 or Corps of Engineers, in order to get ready 9 definition, um -- but essentially, it's an area
10 for your deposition? 10 that, um -- that is affected by water, that
11 A. Um -- 11 typically can support, um -- either -- I guess
12 Q. And you don't have to look to counsel 12 the technical term is hydrophytic vegetation.
13 for your answers on this. Unless there is an 13 Q. You have spell that for me.
14 objection, you can proceed. 14 A. It's H-Y-D-R-O-P-H-Y-T-I-C, I believe.
15 A. Thank you. I've talked to, um -- I 15 But essentially, those are plants that are
16 talked to Al Naomi. He's a friend of mine, and 16 adapted to live in water.
17 he, um -- I believe was here recently, as well. 17 Q. Okay. So it's an area affected by
18 Q. He gave a deposition recently. 18 water which can support hydrophytic vegetation.
19 A. (Nods affirmatively.) 19 A. Right. And there's an entire, um --
20 Q. Anyone else, again besides counsel, 20 area of science devoted to the definition of
21 that you've met with in connection with getting 21 the wetland, and I wouldn't even pretend to be
22 ready for your deposition? 22 able to start listing all of the different
23 A. Well, I wouldn't call it getting 23 aspects of that.
24 ready. You know, as I mentioned, they're 24 Q. All right. But you know more about it
25 colleagues and friend of mine. 25 than I do, so I'm interested in what -- is that
6 (Pages 18 to 21)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
GREGORY MILLER 4/16/2008
Page 22 Page 24
1 your definition? When you think of wetlands, 1 tidally influenced. You have prairie marshes
2 is that what your definition of it would be? 2 outside of Louisiana, for example.
3 A. Yeah. 3 Q. Is the marsh that is found adjacent to
4 Q. Okay. 4 the route and course of the MRGO the type of
5 A. Sure. It depends on who I'm talking 5 marsh that you have just described?
6 to. If it's a school kid -- 6 MS. SULLIVAN:
7 Q. You're talking to a school kid now. 7 I'm going to object because I
8 A. No, I didn't mean that. 8 think it's a little vague.
9 Q. No, for purposes of this, that would 9 Is there a particular area you're
10 be a basic -- 10 talking about, or the entire MRGO?
11 A. Yeah, in general, when we talk to the 11 MR. MEUNIER:
12 public that's typically how we would describe. 12 Just what I said.
13 Q. Now, you say marsh is a type of 13 MS. SULLIVAN:
14 wetland. What do you mean way that? 14 Okay.
15 A. Well, wetland is I guess an 15 A. Could you repeat it for me, please?
16 overarching term, and marsh would fall 16 EXAMINATION BY MR. MEUNIER:
17 underneath that in the sense that there are 17 Q. All right. Is the marsh that you've
18 different types of wetlands. There's flooded 18 just talked about found along the route or
19 forest -- outside of Louisiana there are types, 19 course of the MRGO?
20 prairie pothole, for example. 20 A. Yes.
21 Q. I'm sorry? 21 Q. And the wetlands, as you've described
22 A. Prairie pothole wetlands. 22 it, are also found along the course and route
23 Q. Okay. 23 of the MRGO, correct?
24 A. You know, we have a lot of riverine 24 A. Yes.
25 flooded forests, swamp, and then tidal 25 Q. Is it fair to say that there are
Page 23 Page 25
1 wetlands. And within tidal wetlands there are 1 thousands of acres of marsh and wetlands
2 various types, as well. So that's -- my point 2 adjacent to and along the route of the MRGO?
3 is wetland is the overarching term. Marsh is a 3 MS. SULLIVAN:
4 general term that falls underneath that. 4 Objection.
5 Q. Okay. Give me your just general, 5 But you can answer.
6 simple, basic definition of marsh as a type of 6 A. I think that's fair to say. It
7 wetlands as opposed to other types of wetlands. 7 depends on how you draw the definition of
8 How would you define marsh? Other 8 around it, but yes, that's fair.
9 than the fact that it's a type of wetland, I 9 EXAMINATION BY MR. MEUNIER:
10 mean. 10 Q. I mean, it depends on what I mean by
11 A. Based on, you know, our experience 11 adjacent is what you're saying.
12 here, we typically define marsh as -- it's not 12 A. Well, sure.
13 a forested area, it's a, um -- especially in 13 Q. Okay. Yeah. Well, is it fair to say
14 most of the work that I do, it's a tidally 14 that there are thousands of acres of wetlands
15 influenced vegetated, um -- you know, wetland. 15 and marsh which are immediately adjacent to the
16 Q. Okay. 16 route and course of the MRGO?
17 A. You said not to use wetland, but it 17 A. Yes.
18 is. 18 Q. Would you agree that those areas of
19 Q. Okay. So a marsh would be an open, 19 marsh and wetlands that are immediately
20 that is not forested, tidally influenced area 20 adjacent to the MRGO serve a valuable purpose?
21 of wetlands. 21 MS. SULLIVAN:
22 A. For the area -- 22 Objection, but --
23 Q. For Louisiana. 23 EXAMINATION BY MR. MEUNIER:
24 A. -- that I've done most of my work in. 24 Q. Let me say serve one or more valuable
25 You also have freshwater marsh that's not 25 purposes.
7 (Pages 22 to 25)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
GREGORY MILLER 4/16/2008
Page 26 Page 28
1 A. I believe they do, yes. 1 system.
2 Q. Would you agree that one of the things 2 A. I believe that wetlands and marshes in
3 that makes those wetlands and marsh areas 3 that area are part of a system, um -- and in
4 valuable is that they serve as a buffer or 4 the sense that there are storms that impact
5 barrier against hurricane storm surges? 5 that system, there is a role that they play in
6 A. In terms of what; in other words, are 6 that.
7 they between one area and another, or do 7 Q. And the role that they play in the
8 they -- I'm not sure I understand what you're 8 system has to do with serving as a buffer or
9 looking for. 9 barrier against surge, true?
10 Q. All right. Let me try to make myself 10 Is that what you mean by a role,
11 more clear. I realize this is a broad 11 Mr. Miller?
12 question. We're talking about a large area of 12 A. I guess what I'm worried is that
13 thousands of acres of marsh and wetland that's 13 you're trying to get me to make -- or you're
14 immediately adjacent to the MRGO. I understand 14 asking me if I can place a magnitude of that
15 that. You've acknowledged that that territory, 15 value.
16 that marsh and wetland adjacent to the MRGO, 16 Q. Not asking that right now.
17 does serve valuable purpose. 17 A. Not yet at least. Um --
18 A. That's right. 18 Q. Well, I'm sensing you're hesitant to
19 Q. My question is if one of the valuable 19 do that.
20 purposes served by the marshes and wetlands 20 A. Because I don't want to answer
21 that we find along the MRGO, if one of the 21 something that's outside of my technical field.
22 valuable purposes is serving as a barrier or 22 Q. I understand. And this is a general
23 buffer, or a natural protection against storm 23 question. And really, I was really trying to
24 surges and hurricanes. 24 follow up and understand a little bit more
25 MS. SULLIVAN: 25 clearly, when you say the role they play in the
Page 27 Page 29
1 Objection. It's vague. 1 system, I'm just trying to clarify for the
2 But you can answer. 2 record that you're specifically talking about a
3 A. I believe that wetlands play a role in 3 role they play in connection with serving as a
4 the system. 4 natural barrier against storm surge. Because
5 EXAMINATION BY MR. MEUNIER: 5 that was my question.
6 Q. All right. 6 A. I believe they do. Um -- and I'll
7 A. Um -- the idea of value might get into 7 explain it in the layman terms.
8 a technical area that I can't really, um -- 8 Q. Okay.
9 that I don't have the expertise in to answer. 9 A. I think it's more valuable, if you
10 Q. So you think that -- or you agree that 10 will, to have something there than to have
11 these marshes and wetlands that we're talking 11 nothing there, in that sense, um --
12 about adjacent to the MRGO play a role in the 12 Q. So that by being there, one of the
13 system. 13 functions they perform is to serve as some
14 A. That's correct. 14 barrier or protection against surge.
15 Q. And the role that you are talking 15 MS. SULLIVAN:
16 about is that they serve, to the extent they 16 I'm going to object. Just make
17 are there, as a barrier or protection against 17 it continuing to this line of
18 storm surge and hurricanes. 18 questioning.
19 MS. SULLIVAN: 19 But if you can answer that, go
20 Objection. I don't think he said 20 ahead.
21 that. 21 A. There is some value to that.
22 But you can answer. 22 EXAMINATION BY MR. MEUNIER:
23 EXAMINATION BY MR. MEUNIER: 23 Q. Okay. Now, I've asked this in the
24 Q. I didn't say you said it. I'm asking 24 present tense, I realize, so let me elaborate
25 if that's the role you say they play in the 25 on the questioning a little bit in terms of the
8 (Pages 26 to 29)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
GREGORY MILLER 4/16/2008
Page 30 Page 32
1 time reference. 1 A. I believe the answer -- the channel,
2 Do you agree that the MRGO, over the 2 um -- construction and operation and others has
3 years that it's been in existence, has, because 3 had an effect on the amount of wetlands out
4 of saltwater intrusion, diminished the amount 4 there. Um -- there are also a number of other
5 of marsh and wetlands along certain areas 5 factors involved in wetland loss and coastal
6 adjacent to the course of the MRGO? 6 erosion in that area. Um -- again, I'm kind of
7 MS. SULLIVAN: 7 reluctant in terms of the, um -- connection to
8 I'm going to object on the 8 surge. Um -- I just don't know that I have the
9 grounds of him being produced as a 9 technical expertise to make that valuation
10 fact witness today and that this is 10 there. I do believe -- as you asked me, I do
11 sort of -- we're getting into areas 11 believe there's a role, I do believe there is
12 that are opinion-based. Just as long 12 an impact.
13 as that's clear on the record. 13 EXAMINATION BY MR. MEUNIER:
14 But if you can answer that, go 14 Q. Right.
15 ahead. 15 A. But in terms of, um -- especially
16 A. Could you state it again for me, 16 comparatively surge, I don't know that I have
17 please? 17 the, um -- technical expertise to make that
18 EXAMINATION BY MR. MEUNIER: 18 call.
19 Q. All right. Do you agree that the MRGO 19 Q. All right. You made the comment that
20 over the years that it's been in existence has 20 you weren't sure about the reference to
21 had the effect of diminishing the amount of 21 saltwater intrusion in my question about the
22 marsh and wetland in the areas adjacent to the 22 effect of the MRGO on diminished wetlands and,
23 MRGO because of saltwater intrusion? 23 in turn, barriers and protection against surge.
24 A. I do, to some extent. 24 What was your concern about my
25 Q. Okay. Do you believe that to the 25 connecting saltwater intrusion to the question?
Page 31 Page 33
1 extent the MRGO has had the effect of 1 A. In general, um -- the presence of the
2 diminishing wetland and marshes adjacent to the 2 channel allows saltwater intrusion, and the
3 MRGO it, because of that, has diminished the 3 result of that is not necessarily a loss of
4 extent of natural barriers and protection 4 wetlands, it can be a transition from one
5 against storm surge? 5 wetland type to another. Um -- that was my --
6 MS. SULLIVAN: 6 Q. Uh-huh.
7 I have a continuing objection. 7 A. -- my caution there.
8 But you can go ahead. 8 Q. Do you mean by that that the MRGO, by
9 A. I don't know that the saltwater 9 introducing saltwater obviously into the areas
10 intrusion aspect of that is really associated 10 through which it courses, has had the effect of
11 with it. 11 converting adjacent marsh and wetland from
12 EXAMINATION BY MR. MEUNIER: 12 freshwater marsh and wetland to saltwater marsh
13 Q. Let's take saltwater intrusion out of 13 and wetland?
14 the question. My question is, you acknowledge 14 A. That's right, in general. And other
15 that the MRGO has had the effect of diminishing 15 types, as well.
16 the amount of wetland and marshes along the 16 Q. Now, what is the effect of saltwater
17 course of the MRGO, correct? 17 on bald cypress?
18 A. I do. 18 MS. SULLIVAN:
19 Q. All right. Because of that, do you 19 Objection. That's vague.
20 agree that the MRGO has had the effect of 20 But if you can answer.
21 reducing the amount of natural barrier and 21 A. I'm not a botanist, so I really can't
22 protection against storm surge? 22 give you a direct answer in terms of --
23 MS. SULLIVAN: 23 EXAMINATION BY MR. MEUNIER:
24 Objection. 24 Q. How about an indirect answer? I
25 You can answer. 25 mean --
9 (Pages 30 to 33)
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GREGORY MILLER 4/16/2008
Page 34 Page 36
1 A. I can give you a scientific -- 1 you know, it's connected, um -- you know, it's
2 Q. You're a marine scientist, right? You 2 part of the system in that sense. Um -- and
3 know the effects of saltwater on vegetation, 3 then, you know, I want to be careful. I said
4 don't you? 4 thriving. I don't know if there's some formal
5 A. I think I know where you're going, but 5 definition of that, but the trees are there and
6 I can also take you to places that are directly 6 they're alive.
7 adjacent to or connected to the MRGO and 7 Q. Okay. You don't have any basis to
8 cypress is thriving, so I don't know -- 8 compare how they're doing today with how
9 Q. Without telling me where I'm going, 9 they've done in previous years.
10 I'm trying to find out what you know. So my 10 A. No.
11 question is if you think saltwater helps 11 Q. So is it your testimony -- we'll move
12 support cypress, then that's your answer. 12 on, but is it your testimony that you don't
13 A. That's not what I said. And no, I 13 know the relationship between saltwater
14 don't think that. 14 intrusion and the viability of the tree we call
15 Q. Well, you made a reference to where 15 the bald cypress? Is that your testimony?
16 saltwater -- I mean where bald cypress is 16 A. I guess I was just trying to be
17 thriving. 17 careful about a blanket statement in that
18 A. No, a specific location. 18 sense. Um -- I can -- as I say, I can think of
19 Q. Because of saltwater? 19 areas where there are trees, cypress trees,
20 A. I'm just showing you that there is an 20 affected by saltwater that are growing and
21 area of cypress wetlands that is affected by 21 alive. Um --
22 saltwater from the MRGO, and the cypress is 22 Q. But in general, as a witness who's
23 fine. 23 going to testify about wetlands, isn't it true,
24 Q. Bald cypress? 24 Mr. Miller, that saltwater is not good for the
25 A. I don't know -- I'm not sure of the 25 bald cypress tree?
Page 35 Page 37
1 species. 1 MS. SULLIVAN:
2 Q. What area are you talking about where 2 Objection. Vague.
3 you think cypress is fine despite saltwater 3 EXAMINATION BY MR. MEUNIER:
4 intrusion? 4 Q. Would you agree with that general
5 A. There's several locations, um -- in 5 statement?
6 St. Bernard Parish at the outfall of some 6 A. I agree.
7 drainage pumping stations. 7 Q. Would you agree with the general
8 Q. And when is the last time you were at 8 statement that saltwater is not good for
9 that area? 9 tupelo?
10 A. Sunday afternoon. 10 MS. SULLIVAN:
11 Q. For what purpose? 11 Objection.
12 A. I went fishing. 12 A. I'm not sure.
13 Q. Okay. Did you take pictures? 13 EXAMINATION BY MR. MEUNIER:
14 A. No. 14 Q. Now, you indicated in answer to my
15 Q. And you observed cypress, although 15 previous question that you were aware of the
16 you're not sure it was bald cypress, thriving 16 relationship between the MRGO 's existence and
17 in an area where there was saltwater? Is that 17 the reduction in the amount of marsh and
18 your testimony? 18 wetland in areas adjacent to the MRGO, correct?
19 MS. SULLIVAN: 19 A. That's right.
20 Object. Asking him to speculate. 20 Q. For how long a period of time have you
21 But if you know the answer -- 21 been aware of that?
22 EXAMINATION BY MR. MEUNIER: 22 A. I guess about fifteen years. Ten to
23 Q. This is not speculation. Based on 23 fifteen years, somewhere in that time frame.
24 what you observed when you were out there. 24 Q. So your awareness of that covers the
25 A. Well, I didn't test the water, but, 25 entire period of time you've worked for the
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1 federal government. 1 Q. You so you didn't have any government
2 A. Not quite. 2 employment while you were in college.
3 Q. You have eight years here and five 3 A. No. No.
4 years with the NMFS? 4 Q. Then between '90 and getting your
5 A. You asked me, I believe, about my 5 Master's in '95, what was your work experience?
6 experience from after I graduated from -- after 6 A. I worked in, um -- Everglades National
7 I earned my Master's degree. I didn't tell you 7 Park. I was a biological technician, um -- did
8 about experience prior to that because you 8 field work in Florida Bay, and lab work at the
9 didn't ask. 9 facility in the park.
10 Q. Oh. You had federal government 10 Are you interested in durations or --
11 experience -- employment, rather, prior to 11 Q. Well, I'm interested in -- the way we
12 getting your Master's. 12 got here was my asking you to date for me your
13 A. That's correct. 13 initial awareness of the fact that there have
14 Q. All right. Let's go back to that. 14 been a loss of wetlands and marshes adjacent to
15 I'm sorry. What was your work experience prior 15 the MRGO, and I asked you if that awareness
16 to getting your Master's? 16 covered your entire thirteen-year period of
17 A. How far back do you want me -- 17 employment with NMFS and the Corps, and I think
18 Q. Well, you got your BS in 1990 and your 18 you indicated, well, I had some prior
19 Master's in '95. 19 government employment.
20 A. That's right. 20 A. Right. Right. I can just run that
21 Q. Did you work while you were in 21 through.
22 college? 22 Q. Why don't you run through it, yeah.
23 A. I did. 23 A. After I worked in Everglades National
24 Q. You did? 24 Park, um -- I was hired as a biological
25 A. I did. 25 technician at the National Marine Fisheries
Page 39 Page 41
1 Q. What was your employment when you were 1 Service lab in Panama City, Florida.
2 at the University of Alabama getting your 2 Q. Uh-huh.
3 bachelor of science? 3 A. Began lab work and field work, um --
4 A. I worked, um -- I assume mostly 4 all fisheries related, not wetlands.
5 technical -- professionally relevant? You 5 Um -- I also, after going -- starting
6 don't want to know about my bartending? 6 graduate school, worked for the National Marine
7 Q. I don't need to know about your 7 Fisheries Service in their habitat conservation
8 bartending days, right. 8 office in Baton Rouge, which is where I
9 A. Um -- I was a student worker at the 9 eventually also worked in the late nineties.
10 Dauphine Island Sea Lab in Alabama for one 10 Q. And that was for whom? I'm sorry.
11 summer. 11 A. National Marine Fisheries Service.
12 Q. All right. What was your job 12 Q. Okay. All right. So let's gets back
13 responsibility? 13 to the relationship between the MRGO and loss
14 A. I worked in the library at the sea 14 of wetlands.
15 lab. 15 When did you first become aware of the
16 Q. You did research? 16 relationship between the existence of the MRGO
17 A. I was -- not really, no. 17 and the loss of the -- of marsh and wetlands in
18 Q. Okay. 18 areas adjacent to the MRGO?
19 A. I would, um -- put books back on the 19 A. I guess that would be around 1993.
20 shelf and pull journal articles and such for 20 Q. And how did you first become aware of
21 professors and things like that. 21 that relationship?
22 Q. All right. Did you do reading on 22 A. I don't recall specifically, but part
23 wetlands and coastal restoration and 23 of my job in that office was coastal
24 conservation? 24 restoration, um -- you know, planning --
25 A. Not at that time. No. 25 assessing areas of the coast and trying to plan
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1 for restoration projects and, um -- part of the 1 recollection that I have, or is it --
2 area that I worked in was, um -- Orleans and 2 EXAMINATION BY MR. MEUNIER:
3 St. Bernard, um -- the wetland around the MRGO. 3 Q. No. No. I'm asking a broader
4 Q. Uh-huh. When you became aware and 4 question, about the discussions that you had on
5 continued to have awareness of the fact that 5 this subject dating back to the mid to late
6 the MRGO was associated with wetlands and marsh 6 nineties. I realize I'm capturing a number of
7 loss, did you have communications with fellow 7 different discussions, or I may be, so I mean
8 workers in the federal government about that 8 this to apply to all those discussions. In
9 fact? 9 those discussions that you personally have been
10 MS. SULLIVAN: 10 part of, do I assume correctly that there's
11 Objection. 11 been reference to both the economic advantages
12 EXAMINATION BY MR. MEUNIER: 12 of the MRGO as a navigational channel and the
13 Q. Was it the subject of professional 13 environmental disadvantages of the MRGO?
14 discussion, I should say? 14 MS. SULLIVAN:
15 A. You know, it was fifteen years ago. 15 Objection.
16 Q. I know I'm covering a long period of 16 You can answer.
17 time. 17 A. In general, and specifically much more
18 A. Yeah. I would assume there -- the 18 recently, um -- our discussions, if you will,
19 types of discussions we would have had in the 19 have been focused on assessing both the
20 office, and with others in the field, would 20 navigation benefits as well as, um -- you know,
21 have been about how to restore wetlands in that 21 problems or opportunities in terms of wetlands
22 area. That was really the focus of the work. 22 loss and wetlands restoration --
23 Q. Uh-huh. 23 Q. Well -- I'm sorry.
24 A. It's really been the focus of the work 24 A. -- um -- if the focus is more on he
25 that I've done the majority of my career. 25 earlier discussions --
Page 43 Page 45
1 Q. Uh-huh. Right. In attending to the 1 Q. Uh-huh.
2 issue of restoration of wetlands, particularly 2 A. -- um -- there was a recognition of
3 specifically in the areas where there have been 3 the navigation aspect of this channel, as well
4 loss of wetlands adjacent to the MRGO, do you 4 as others in Louisiana, um -- in terms of
5 recall having a discussions with colleagues in 5 opportunities for, um -- protecting wetlands as
6 the federal government about the possibility of 6 well as opportunities to restore wetlands. So,
7 closing the MRGO? 7 you know, for quite some time in terms of
8 MS. SULLIVAN: 8 looking at it, and especially in terms of my
9 Objection. 9 experience, much more so recently in terms of
10 You can answer. 10 the role of looking at the assessment of both
11 A. I do. 11 navigation and coastal wetlands.
12 EXAMINATION BY MR. MEUNIER: 12 Q. Uh-huh. In your employment, both with
13 Q. When is the earliest date that you can 13 the NMFS And the Corps, I want to cover both
14 recall having discussions with colleagues about 14 periods for a moment, have you been called on
15 the closure of the MRGO? 15 to offer your personal belief as to whether it
16 A. I would think sometime in the mid to 16 would be advisable to close the MRGO because of
17 late nineties. 17 its environmental impact on wetlands and marsh?
18 Q. I assume in those discussions it was 18 MS. SULLIVAN:
19 recognized that there were navigational 19 Objection.
20 benefits of the MRGO that needed to be weighed 20 A. Could you repeat it for me, please?
21 against environmental disadvantages of the 21 EXAMINATION BY MR. MEUNIER:
22 MRGO. True? 22 Q. In connection with your employment
23 MS. SULLIVAN: 23 with both agencies, have you been called on to
24 Objection. 24 offer your personal belief as to whether it
25 A. Is your question focused at the first 25 would be advisable to close the MRGO because of
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1 its environmental impact on marsh and wetlands? 1 that -- and it sort of depends on what you
2 A. Not my personal belief, no. 2 define as closing the MRGO. But, um -- I
3 Q. No one has ever asked you that. 3 believe based on a number of factors,
4 A. They have not asked me what do I -- 4 economics, wetlands, um -- public opinion, a
5 Q. Yeah. 5 number of factors, that closing the channel is
6 A. -- believe? 6 a good plan, a good option.
7 Q. Yeah. Like Greg, you're a wetlands 7 EXAMINATION BY MR. MEUNIER:
8 guy, what do you think? Something like that. 8 Q. How long have you held that personal
9 That's never been asked of you before? 9 opinion?
10 A. In the professional context or 10 MS. SULLIVAN:
11 personal relations outside of -- 11 It's a continuing objection.
12 Q. All right. Well, let's deal first 12 Go ahead.
13 with the professional. 13 A. Probably fifteen years.
14 In connection with your official 14 EXAMINATION BY MR. MEUNIER:
15 duties and responsibilities as a government 15 Q. And I want to make sure I understand
16 employee for those agencies, have you ever been 16 before we move on. You've had that opinion for
17 invited or called on to express that belief or 17 fifteen years, but you've never been asked by
18 position as to whether it would be advisable to 18 anyone within either the NMFS or the Corps of
19 close this channel because of its environmental 19 Engineers to express your opinion on that
20 impact on wetland and marsh? 20 subject; is that true?
21 MS. SULLIVAN: 21 A. No --
22 Objection. 22 MS. SULLIVAN:
23 But you can answer. 23 Go ahead?
24 A. I don't know that I've been asked 24 A. Not my personal opinion.
25 directly, personally, Mr. Miller, what do you 25 EXAMINATION BY MR. MEUNIER:
Page 47 Page 49
1 think we should do? 1 Q. Okay. Did you ever reduce that
2 Q. Okay. 2 opinion to a written form in the way of a
3 A. I have been asked about, um -- you 3 letter, E-mail, memo of any kind, prior to
4 know, our assessment, if you will, of all the 4 Hurricane Katrina?
5 various aspects or components of the issue of 5 A. No. Not that I recall, I guess.
6 the MRGO. 6 Q. Okay. Have you ever expressed that
7 Q. Well, do I take it from that answer 7 opinion to your friend Mr. Naomi?
8 that you have been asked to be part of an 8 MS. SULLIVAN:
9 assessment of the environmental impact of the 9 Objection.
10 MRGO on wetlands and marsh? 10 You can answer.
11 A. Yes. 11 A. No.
12 Q. Okay. And I want to ask you about 12 EXAMINATION BY MR. MEUNIER:
13 that, but let me go back to the other question. 13 Q. Is today, April 16, 2008, the first
14 Do you have, as someone who has worked 14 time you've ever expressed that opinion in your
15 in wetlands conservation, et cetera, and based 15 more official capacity as a federal government
16 on your professional training and experience, 16 employee?
17 do you have a belief today as to whether it 17 MS. SULLIVAN:
18 would be advisable to close the MRGO because of 18 Same objection.
19 its environmental impact on marsh and wetlands? 19 A. I guess the trouble I'm having with
20 MS. SULLIVAN: 20 this is the idea of a personal opinion versus a
21 Objection. It's calling for 21 professional, um -- assessment under a set of
22 opinion testimony. Again he's being 22 rules and presentation of, you know,
23 produced as a fact witness. 23 information about a subject, and then a
24 But you can answer the question. 24 recommendation. That, to me, is different than
25 A. I believe based on a number of factors 25 a personal opinion. That's -- I guess that's
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1 why I'm having a little trouble with your 1 coastal area plan that had components or
2 questions. 2 features that protected the shoreline of the
3 Q. Fair enough. All right. Well, let's 3 MRGO to stop erosion, and shipping and other
4 clarify that. I understand your concern about 4 vessels would still be able to utilize the
5 it. 5 channel under that condition, with limits to
6 It is your personal opinion, and I 6 the amount of erosion it would have.
7 gather it has been for a number of years, you 7 We've also developed plans without
8 said I think fifteen years, that all things 8 taking navigation off of the channel for
9 considered it would be advisable to close the 9 additional restoration of wetlands anyone area.
10 MRGO because of its environmental impact on 10 Q. All right. So if I understand you
11 marsh and wetlands. True? Talking about your 11 correctly, your professional judgment leads you
12 personal opinion now. 12 to be able to see ways in which the MRGO could
13 A. I believe so, yes. 13 remain open and efforts could continue to
14 Q. Now, let me ask you to put on another 14 protect wetland and marshes.
15 hat. And now we're talking about your 15 A. Correct.
16 professional judgment. I'm not talking about 16 Q. And you acknowledge those ways and
17 Greg Miller the individual citizen, now, I'm 17 means of doing that. But my question is
18 talking about Greg Miller the wetlands 18 slightly different.
19 official, if you will, with these government 19 It is your professional judgment,
20 agencies. 20 isn't it, that the MRGO has had an adverse
21 Is it your professional judgment that 21 impact on the marsh and wetland areas adjacent
22 it would be advisable to close the MRGO because 22 to the channel?
23 of, among other things, its environmental 23 MS. SULLIVAN:
24 impact on the marsh and wetlands in areas 24 Objection.
25 adjacent to the channel? 25 If you can answer it.
Page 51 Page 53
1 MS. SULLIVAN: 1 A. I believe that, yes.
2 Objection. Again calling for an 2 EXAMINATION BY MR. MEUNIER:
3 opinion. And it's vague. 3 Q. Okay. Given that, do you have a
4 But if you can answer go ahead. 4 professional judgment as to whether it would be
5 A. In my professional experience, um -- 5 advisable to close the MRGO?
6 the work that I've done has looked at this in a 6 MS. SULLIVAN:
7 number of ways, and I did see ways that the 7 Objection.
8 channel could remain open in that sense for 8 A. Yes. I do.
9 navigation and still be -- and still have, 9 EXAMINATION BY MR. MEUNIER:
10 um -- economic benefits and no impact -- or a 10 Q. What is that judgment?
11 diminished impact on wetlands. No continuing 11 MR. LUPO:
12 impact on wetlands. I've seen it that way, and 12 It's potentially a deliberative
13 I've also seen it, um -- in terms of, um -- you 13 process, so I need to clarify what
14 know, the economic, um -- status of it, if you 14 exactly you asked him.
15 will, and the long-term, um -- you know, the 15 MR. MEUNIER:
16 long-term impact to wetlands if certain, um -- 16 I asked him whether he had a
17 certain steps weren't taken. In other words, 17 professional judgment, given the
18 my point from a professional standpoint is, I 18 environmental impact of the MRGO on
19 could work with the channel open for 19 marsh and wetland, as to whether it
20 navigation, or closed, and focus on how to 20 would be advisable to close the MRGO.
21 protect wetlands in either case. And I've done 21 EXAMINATION BY MR. MEUNIER:
22 that. 22 Q. I didn't ask what it was, I just asked
23 EXAMINATION BY MR. MEUNIER: 23 whether you had such a judgment on that issue.
24 Q. Uh-huh. 24 MR. LUPO:
25 A. We have a, um -- we had a Louisiana 25 Can I ask you to clarify your
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1 question in the sense are you asking 1 Q. Right.
2 him as someone with a Master's in 2 A. But in terms of professional
3 whatever, fisheries, or whether as 3 assessment, you know, it's been a topic of
4 someone employed with the Corps as a 4 consideration for a decade or longer -- at
5 project manager? 5 least in my involvement for a decade or longer.
6 MR. MEUNIER: 6 Q. The topic being whether to close the
7 Well, let's break it up. 7 MRGO.
8 EXAMINATION BY MR. MEUNIER: 8 A. Correct.
9 Q. Let's ask it first based upon your 9 Q. Right. So this has been the topic of
10 role, your capacity as a -- 10 discussion and deliberation both within the
11 MR. LUPO: 11 NMFS And the Corps, in your experience, working
12 With his Master's degree he's not 12 for both agencies?
13 employed with the Corps as a fisheries 13 A. Yes.
14 scientist. 14 Q. And in connection with that, did I
15 THE WITNESS: 15 understand your earlier testimony to be that no
16 That's right. 16 one has ever asked you what your professional
17 MR. LUPO: 17 judgment is as to that question of closure? Is
18 And so in that sense he cannot 18 that true?
19 answer professionally. There's other 19 A. Professionally?
20 people at the Corps who would analyze 20 Q. Yeah.
21 it from that perspective. 21 A. No, I've definitely --
22 MR. MEUNIER: 22 Q. You have been asked that.
23 Well, I don't know if I 23 A. Sure.
24 understand the objection because, you 24 Q. All right. So I need to go back, now,
25 know, he can tell me either yes or no 25 and ask you, have you formed a professional
Page 55 Page 57
1 in answer to whether he has the 1 judgment, and again, growing out of these
2 judgment. 2 discussions on this topic -- both in your years
3 (Off the record.) 3 with NMFS and the Corps, have you formed a
4 EXAMINATION BY MR. MEUNIER: 4 professional judgment as to that question of
5 Q. Let's try to clarify things, 5 closure?
6 Mr. Miller. I've tried, because of your 6 MS. SULLIVAN:
7 concerns about whether you were speaking from 7 Objection.
8 the standpoint of personal opinion or whether 8 You can answer.
9 you were speaking from the standpoint of what 9 A. I have. I thought I had answered that
10 I'm calling your professional experience, and I 10 but, yeah.
11 don't really still understand the distinction 11 EXAMINATION BY MR. MEUNIER:
12 there, but -- 12 Q. Yeah. And your judgment is that it
13 A. Well, I can explain it to you if you 13 should be closed?
14 want. 14 A. Well, again, my judgment is that I can
15 Q. Okay. Good. 15 look at it from a number of ways. I can look
16 A. I've never been asked, what do you 16 at it in terms of ways to operate the channel,
17 think, Greg, what should we do? 17 um -- and help, um -- prevent erosion as well
18 Q. Uh-huh. 18 as do restoration in that area, um -- and I can
19 A. Personally what do you think? I never 19 see it from other ways, as well, to close the
20 been that, which I believe was what your 20 channel to navigation and continue to pursue
21 question was. 21 restoration opportunities. I can see it both
22 Q. Yeah. We've covered that. I think 22 ways. And I've had, um -- that professional
23 today is the first time anyone asked you that. 23 opinion over, um -- you know, the course of
24 A. No, in terms of -- yeah. Yeah. 24 time that I've worked with it.
25 Personal opinion. 25 Q. So the question is -- I understand you
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1 see both sides, but the question is closure or 1 I don't know that it's as clear cut as, um --
2 no closure, whether or not. And my question to 2 as I think you've asked it.
3 you is, have you formed a professional judgment 3 Q. Yes, sir. And I really -- the
4 as to whether or not it should be closed? Is 4 question was meant to either be yes or no.
5 it your answer that your judgment is either 5 A. I probably made it more difficult than
6 way, that is, that it doesn't matter? I'm not 6 you wanted. I'm sorry.
7 sure I understand the answer. 7 Q. So in answer to my question whether
8 MS. SULLIVAN: 8 you have or have not formed a professional
9 Objection. I don't know if the 9 judgment on the issue of the closure of the
10 question is clear. 10 MRGO due to its environmental impact on wetland
11 EXAMINATION BY MR. MEUNIER: 11 and marshes, is the answer no, that you don't
12 Q. Well, you've told us you see both 12 have a judgment as to whether it should or
13 sides. My question is, do you have a 13 should not be closed?
14 professional judgment -- have you formed one, 14 MS. SULLIVAN:
15 given both sides of the question, as to whether 15 Objection.
16 it would be advisable to close the MRGO? 16 A. I have a, you know, a professional and
17 MS. SULLIVAN: 17 a personal judgment on that.
18 Objection. 18 EXAMINATION BY MR. MEUNIER:
19 A. I guess I look at -- you know, I'm 19 Q. And what is that?
20 trying to make sure that you understand that I 20 A. Well, my personal opinion is that,
21 can look at this either way, that the issue of 21 yes, it should be closed. My professional
22 whether the channel is open or closed is not 22 opinion is that based on economics and a number
23 necessarily, um -- it's not that clear-cut in 23 of other factors, the channel should be closed.
24 the sense that there are ways to still do the 24 Q. Okay. All right. Good.
25 work that I do whether that channel is open for 25 A. That's also the recommendation of the
Page 59 Page 61
1 navigation or closed. 1 Chief of Engineers.
2 EXAMINATION BY MR. MEUNIER: 2 Q. Yes, I know. Yeah. Now, and you
3 Q. I understand. 3 coauthored the de-authorization report, didn't
4 A. And I see that, and I think in 4 you?
5 Louisiana, and there are examples from other 5 A. I don't know about coauthored, but I
6 parts of the coast, that that's exactly how we 6 led the development of it.
7 have to look at things because there are 7 Q. Maybe they're giving you more credit,
8 factors that are not controlled by the programs 8 but I thought that's what the designation said.
9 in which, um -- you know, I do the majority of 9 Okay. When, talking about date and
10 my work. 10 time, now, did you form -- initially form that
11 Q. Uh-huh. 11 professional judgment?
12 A. For example, the programs that are 12 MS. SULLIVAN:
13 directed for coastal restoration don't -- they 13 I'm going to object again. I
14 don't necessarily -- they don't, in general, 14 think that's been asked and answered.
15 control the decision about navigation economics 15 I'm not certain, though.
16 or presentation of that information in the 16 Go ahead if --
17 sense -- and the reason I'm trying to show you 17 A. Is the question a professional
18 this is that, you know, our role, especially in 18 judgment?
19 terms of a project manager, is to serve a 19 EXAMINATION BY MR. MEUNIER:
20 number of different customers. We do hurricane 20 Q. Yes. We've covered personal. We're
21 protection work, navigation work, I do system 21 on professional now.
22 restoration. In order to be successful in 22 A. And it's in terms of my work for the
23 terms of implementing a project, you have to 23 Corps of Engineers? Is that --
24 balance all of that. And that's my -- I guess 24 Q. Well, let me ask it this way: Did you
25 that's the reason I've tried to show you that. 25 have that professional judgment that it should
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1 be closed prior to coming to work for the Corps 1 Q. Okay. Again, I want to pinpoint, if I
2 of Engineers? 2 can, when you formed the professional opinion
3 A. Not professionally, because I wasn't 3 that considering all these things it would be
4 asked. But personally, yes. 4 advisable to close the MRGO. And you've told
5 Q. So you formed that professional 5 me that you don't believe you formed this
6 judgment since coming to work for the Corps of 6 judgment before coming to the Corps of
7 Engineers? 7 Engineers, that it's been formed since you've
8 A. Yeah. And I guess to -- it's sometime 8 been with the Corps of Engineers, and I think
9 within the last I believe five years or so. 9 you also told me, just trying to get us to a
10 Q. All right. Let me try to get a little 10 point where we can move on, that -- did you say
11 bit more specific than that. 11 for five years?
12 Did you form that professional 12 A. That's right.
13 judgment five years ago? 13 Q. That you've had this judgment? Is
14 MS. SULLIVAN: 14 that --
15 Objection. 15 A. Within the last five years. Yes.
16 A. The way -- from a professional 16 Q. Within the last five years. Did you
17 standpoint, the way it was framed was in the 17 have this judgment --
18 issue of how to restore and protect wetlands. 18 A. And the point is --
19 And that's why I was showing you the -- there 19 Q. Yeah.
20 are ways to protect and restore wetlands with 20 A. -- that from a professional standpoint
21 the channel open and with it closed. 21 it depends upon what I've been asked to do.
22 EXAMINATION BY MR. MEUNIER: 22 Q. Yeah.
23 Q. Right. I understand. You approached 23 A. If I've been asked to develop a plan
24 this issue from the standpoint of wetlands and 24 to de-authorize the channel --
25 coastal conservation, I guess. 25 Q. Right.
Page 63 Page 65
1 A. Well, from a number of approaches, 1 A. -- that's one approach to it. If it
2 navigation economics and, um -- public opinion, 2 is to develop plans to protect wetlands or
3 and environmental, um -- 3 restore wetlands, the channel is -- you know,
4 Q. Let's be clear. Professionally, your 4 the fact that the channel is open is a part of
5 expertise or training or experience is in the 5 that existing condition that you have to work
6 area of wetlands conservation and coastal 6 with.
7 protection, not economics -- 7 Q. Sure. In other words, the formation
8 A. That's correct. 8 of this professional judgment that it should be
9 Q. -- right? 9 closed is driven, is it not, by, in some way,
10 A. Right. But as a project manager, 10 by what you're asked to do --
11 especially in formulating a study -- 11 A. Correct.
12 Q. You got to look at everything. 12 Q. -- and what projects you're working
13 A. -- you know, we don't look at things 13 on --
14 from just a single point -- 14 A. Correct.
15 Q. I got you. 15 Q. -- and what your mission is within
16 A. -- it involves a number of different 16 each project? I understand there are a number
17 technical areas. 17 of forces at play here.
18 Q. I understand. So you approach it with 18 A. Uh-huh.
19 training and experience specifically in 19 Q. But somehow or another, in the
20 wetlands issues, but then as project manager 20 combination of all those factors of what you
21 asked to form a professional judgment on this 21 were asked to do and what projects you were
22 subject, you have to take into account things 22 attending to, you formed a professional
23 like economics and, if you will, non 23 judgment during -- within the last five
24 environmental factors. 24 years --
25 A. That's correct. 25 A. Uh-huh.
17 (Pages 62 to 65)
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Page 66 Page 68
1 Q. -- that the MRGO should be closed. 1 MRGO has had an adverse impact on freshwater
2 MS. SULLIVAN: 2 marsh and wetland areas adjacent to the
3 Objection. 3 channel?
4 EXAMINATION BY MR. MEUNIER: 4 MS. SULLIVAN:
5 Q. True? 5 Objection.
6 MS. SULLIVAN: 6 A. Yes.
7 You can answer. 7 EXAMINATION BY MR. MEUNIER:
8 A. Yes. 8 Q. And you agree with me, don't you, that
9 Can I have one minute? 9 these freshwater marsh and wetland areas have
10 (Brief recess.) 10 played a role, historically, in a system of
11 EXAMINATION BY MR. MEUNIER: 11 natural protection against storm surge?
12 Q. Mr. Miller, I think when we took a 12 MS. SULLIVAN:
13 break I was hoping to finish up that area about 13 Objection.
14 professional judgment by asking if you could be 14 A. I just want to be careful not to get
15 a little bit more specific about the time when 15 outside of my professional area.
16 you initially formed that professional judgment 16 EXAMINATION BY MR. MEUNIER:
17 on closure. You've told me the judgment you 17 Q. Uh-huh.
18 have on that professionally was formed within 18 A. Um -- I'm not sure I can answer
19 the last five years is what you said. 19 that -- you asked in terms of historical and
20 A. (Nods affirmatively) 20 the role and -- I believe you said the system?
21 Q. Can you be more specific and tell me 21 Q. All right. Well, I was trying to
22 when you initially, or for the first time, 22 capture, frankly, some of your earlier
23 formed that professional judgment on closure? 23 testimony. When we earlier talked about
24 MS. SULLIVAN: 24 wetland and marsh as a natural barrier or
25 Objection. 25 protection against storm surge, I thought you
Page 67 Page 69
1 A. I don't really recall other than it's 1 told me that you acknowledged that wetland and
2 been within that time period. 2 marsh played a role, is the way you put it, in
3 EXAMINATION BY MR. MEUNIER: 3 the system.
4 Q. Is it fair to say that you formed that 4 A. That's correct.
5 professional judgment before Hurricane Katrina? 5 Q. All right. So I was trying to honor
6 A. Yes, that was only almost three years 6 your phraseology here. And so I'm just going
7 ago, so yeah. 7 back to make sure we're on the same page when
8 Q. Okay. Let me, before we move on, 8 we talk about this, that I mean freshwater
9 clarify one thing. I know we talked earlier 9 marsh and wetland.
10 about the definition of wetlands and marsh, and 10 So my question is, do you acknowledge
11 I've been asking you questions dealing with the 11 that freshwater marsh and wetland adjacent to
12 MRGO 's environmental impact on adjacent 12 the MRGO has played a role in the system of
13 wetlands and marsh. 13 affording a natural protection against storm
14 You understand that my questions about 14 surge?
15 the MRGO 's impact on adjacent wetland and 15 MS. SULLIVAN:
16 marsh deals with freshwater wetlands and marsh 16 Objection.
17 adjacent to the MRGO; you understand that? 17 A. I do. But being careful not to make a
18 MS. SULLIVAN: 18 judgment in terms of a value, um -- of one
19 Objection. 19 wetland type versus the other in the way you
20 A. Um -- I didn't until you just -- if 20 asked it.
21 that's what you're saying. 21 EXAMINATION BY MR. MEUNIER:
22 EXAMINATION BY MR. MEUNIER: 22 Q. All right. So you don't have a
23 Q. All right. Well, let me make sure 23 position on the extent of the role, but you
24 we're on the same page. 24 would agree that freshwater marsh and wetland
25 You agree with me, don't you, that the 25 adjacent to the MRGO has played a role in
18 (Pages 66 to 69)
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Page 70 Page 72
1 affording a natural barrier against hurricane 1 EXAMINATION BY MR. MEUNIER:
2 storm surge. 2 Q. All right. So you can say the answer
3 MS. SULLIVAN: 3 is yes, based on what you reviewed and read.
4 Objection. 4 A. Yes, sir.
5 EXAMINATION BY MR. MEUNIER: 5 Q. Do you have any reason, from your
6 Q. True? 6 professional experience or background, to
7 A. Yes, I believe so. 7 question that?
8 Q. We're going to stay one more moment on 8 A. No.
9 this terminology today. 9 Q. Do you have familiarity with this
10 Do you know what I mean when I refer 10 document entitled Louisiana Coastal Protection
11 to freshwater forested wetland? 11 and Restoration Technical Report dated
12 A. I don't necessarily know what you 12 February 2008 issued by the Army Corps of
13 mean, but I know -- 13 Engineers New Orleans District?
14 Q. Okay. I should ask you what -- 14 A. I do.
15 A. In terms of coastal Louisiana, I know 15 Q. What was your role, if any, in
16 what forested wetlands are. 16 connection with this report?
17 Q. Freshwater forested wetlands. 17 A. I am senior project manager on the
18 A. Yes, I believe so. 18 project management team putting together the
19 Q. Did freshwater forested wetlands exist 19 technical report.
20 in the area where the MRGO runs its course 20 Q. Okay. Just in general terms, what
21 prior to the time the MRGO existed? 21 precipitated this report or what caused this
22 MS. SULLIVAN: 22 report to be issued?
23 Objection. 23 A. An Act of Congress.
24 A. I believe so. 24 Q. Can you be more specific about that?
25 EXAMINATION BY MR. MEUNIER: 25 Do you know what Act of Congress it was?
Page 71 Page 73
1 Q. Did these freshwater forested wetlands 1 A. It's --
2 that existed prior to the MRGO serve as a 2 Q. It's in here.
3 natural protection against storm surge? 3 A. Yeah. I don't recall the public law
4 MS. SULLIVAN: 4 number.
5 Objection. 5 Q. Okay. We won't go there.
6 A. I don't -- I don't know in the sense 6 A. Good.
7 that, um -- I don't know of any information 7 Q. When were you, Greg Miller, first made
8 that would document level or magnitude of that 8 aware that you were going to be involved as
9 role. Um -- I'll go back to the concept of a 9 project manager with this matter?
10 system, um -- in that the wetlands on the coast 10 A. Um -- November 2005.
11 all play a role in a system that's valuable, 11 Q. Is this report, and I'm showing you
12 um -- in terms of, you know, ecology and 12 the first written report -- I think I have an
13 economics and storms and, um -- the recreation 13 extra copy, let me give you this one since that
14 and everything, so, yes, I do believe that. 14 one has got markings on it -- is this report
15 EXAMINATION BY MR. MEUNIER: 15 that I'm handing you the first written report
16 Q. Okay. Has the MRGO, because of 16 issued in connection with the project?
17 saltwater intrusion, diminished the extent of 17 A. No, it's not.
18 fresh forested wetland in areas adjacent to the 18 Q. What was the first report? Or when
19 MRGO? 19 was the first report issued?
20 MS. SULLIVAN: 20 A. July of 2006.
21 Objection. 21 Q. And were there any further iterations
22 A. If you're asking in terms of, you 22 of the report after July, 2006, prior to this
23 know, what have I read about it, yes, that's 23 February 2008?
24 right. Have I done any work to document that 24 A. There are, um -- drafts of this report
25 or otherwise? No, I have not. 25 that, um -- prior to February.
19 (Pages 70 to 73)
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Page 74 Page 76
1 Q. Okay. How many? 1 Q. Okay.
2 A. There are drafts of the report and 2 A. Um -- plan formulation atlas, a
3 there are also additional components of the 3 progress report that the Assistant Secretary --
4 study that were -- and I want to make the 4 Q. Which is not public yet.
5 distinction here -- 5 A. No, sir.
6 Q. Okay. 6 Q. Okay. So yeah, my question was, I was
7 A. -- the other components of the study 7 talking about between July of '06 and February
8 were released publicly. There's a plan 8 of '08, have there been any other drafts of a
9 formulation atlas, it's a series of maps of the 9 technical report that have been prepared in
10 coast and, um -- portrays population and 10 connection with this project?
11 existing levees and wetlands and transportation 11 A. Yes.
12 infrastructure. Um -- then there are drafts of 12 Q. And you've mentioned a plan
13 this report itself that were circulated for 13 formulation atlas.
14 independent technical review as well as review 14 A. That's correct.
15 within the Corps of Engineers, um -- and there 15 Q. What else?
16 is a, um -- a progress report that was 16 A. A progress report.
17 developed for the Assistant Secretary of the 17 Q. I thought -- Oh. That's been prepared
18 Army that I believe is not publicly available 18 but not made public yet.
19 yet. So those are the components that there 19 A. The progress report. That's right.
20 are in addition to this draft and the July 20 Q. Okay.
21 preliminary technical report. 21 A. And then drafts of this, um -- that
22 Q. Other than the July -- I think -- did 22 you have in front of you and that you gave to
23 you say July of '06? 23 me.
24 A. Yes, sir. 24 Q. All right. That's really what I was
25 Q. All right. In July, '06, the first 25 trying to understand better. How many drafts
Page 75 Page 77
1 draft of the technical report issued; true? 1 of this February '08 document have preceded it?
2 A. The July '06 document is -- if you 2 A. I don't recall. Um -- maybe three.
3 read the legislation, it requires two 3 Three or four, maybe. I mean, writing is an
4 reportings. One is a preliminary technical 4 iterative effort, you know, so.
5 report to Congress, the other is a final 5 Q. Uh-huh. Do these prior drafts still
6 technical report to Congress. 6 exist in some format, to your knowledge?
7 Q. Uh-huh. 7 A. Sure.
8 A. The preliminary technical report, July 8 MR. MEUNIER:
9 '06 -- 9 I'm not trying to substitute for
10 Q. Uh-huh. 10 a normal Rule 34 request, but I just
11 A. -- was -- you know, was delivered to 11 want to make a note on the record that
12 Congress. 12 plaintiffs would like to obtain and
13 Q. Uh-huh. And then between that and 13 would seek to obtain the prior drafts
14 this February 2008 report, what other technical 14 of this technical report.
15 reports have issued? Or drafts of technical 15 A. Can I take a break for one second?
16 reports? 16 MR. MEUNIER:
17 A. Well, issued is a different, um -- 17 Sure.
18 Q. Then created. Let's put it that way. 18 (Brief recess.)
19 A. Okay, I'll go through it again. The 19 EXAMINATION BY MR. MEUNIER:
20 plan formulation atlas. 20 Q. I just have a couple of questions
21 Q. I thought that was different from the 21 about this. Turn, if you will, to Page 53.
22 technical report. 22 MR. MEUNIER:
23 A. It's a component. 23 And I'm sorry, counsel, I only
24 Q. It's a component of. 24 have one extra copy.
25 A. It's a component of. 25 MS. SULLIVAN:
20 (Pages 74 to 77)
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Page 78 Page 80
1 That's okay. 1 concerned, the written report, what was your
2 EXAMINATION BY MR. MEUNIER: 2 role? I'm talking about the preparation of the
3 Q. Page 53 of the February 2008 draft of 3 actual document.
4 the Louisiana Coastal Protection and 4 A. For this -- you know, the draft, um --
5 Restoration Technical Report. 5 here, I wrote some pieces of it. I helped
6 A. Okay. 6 manage the production of it by other, um --
7 Q. What role, if any, did you play in the 7 technical members, um -- but, um -- and some
8 language that appears under the caption coastal 8 editing, but not a -- my role is more in the
9 restoration measures and alternatives? 9 development and production by others than
10 A. I don't think I played any role in 10 drafting.
11 this. 11 Q. Than the writing?
12 Q. You didn't contribute to the language 12 A. In some cases I would write pieces of
13 that appears under that heading? 13 things, but in most cases it was, um -- helping
14 A. If I did, I don't remember. 14 make sure the team met schedules and had
15 Q. Okay. Fair enough. 15 information they needed or resources they need
16 A. It doesn't look like my writing. And 16 in order to prepare the report.
17 I write every day. 17 Q. There's a table of contents. I wonder
18 Q. All right. Well, I guess I should ask 18 if you could tell me -- just in summary, brief
19 you, just generally, what was your role as 19 fashion, identify for me the sections that you
20 project manager for this particular matter? 20 personally had a hand in writing.
21 What was your responsibility? 21 A. Um -- Sections 1, 2, 9 and 10.
22 A. You mean the study, not the 22 Q. And do I understand correctly,
23 paragraphs, right? 23 Mr. Miller, that you also reviewed and edited
24 Q. For the study, what was your role as 24 other sections?
25 project manager? 25 A. That's correct.
Page 79 Page 81
1 A. Um -- I helped write the project 1 Q. Okay. So the final product, the final
2 management plan, I helped assemble the team, 2 written report, is one over which you generally
3 um -- I ran, along with five other project 3 had the opportunity to make changes as you saw
4 managers, because of the magnitude of this, the 4 fit.
5 day-to-day work of the team. 5 A. Yes.
6 Q. Uh-huh. 6 Q. Okay.
7 A. And a lot of, um -- status reporting 7 A. To clarify, make changes, mostly in
8 about progress being made on the study, in 8 editorial nature, not in any technical -- you
9 terms of the management of the effort. And 9 know, the information in the report is produced
10 then the, um -- public, um -- public 10 by technical elements of our team.
11 involvement process, public meetings under the 11 Q. Okay. There's a discussion at Page 14
12 National Environmental Policy Act, worked with 12 of the report about what's called Myth 3,
13 the media to inform them about the study, and 13 namely, that the 100-year storm surge will only
14 then stakeholder groups. 14 occur once every hundred years.
15 Q. Just so we're clear, a stakeholder 15 Do you see that?
16 group, what do you mean by that? 16 A. I do.
17 A. In general, it's anyone that has an 17 Q. Did you write this portion?
18 interest in the development and outcome of a 18 A. No. I didn't.
19 study that we conduct. Um -- in the sense of 19 Q. Do you have, Mr. Miller, expertise or
20 this, because it's so broad, it's essentially 20 training in regard to the prediction of storm
21 everyone, um -- local government, the 21 surges? Or the modeling of storm surges?
22 environmental organizations, business groups, 22 A. No, no technical expertise, no.
23 um -- general, you know -- landowners, 23 Q. So you rely on others for that
24 citizens, levee boards, et cetera. 24 discussion, don't you?
25 Q. Okay. Insofar as the report is 25 A. That's right.
21 (Pages 78 to 81)
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Page 82 Page 84
1 Q. Okay. And that would include the 1 A. Yes. I hope so.
2 discussion here about this so-called myth of 2 Q. Last time you checked. At least he
3 the 100-year storm surge? 3 was this morning.
4 A. That's right. 4 A. I don't know what he did last night.
5 Q. There's a statement at the very bottom 5 Q. Right. Right. What's his job
6 of the page, after discussing why that's a 6 position or title?
7 myth, that the 100-year storm surge will only 7 A. Um -- I don't know his official title.
8 occur every hundred years, the statement is 8 He's, um -- he's a chief of one of the sections
9 that within a given period of a hundred years, 9 up there, I believe.
10 the 100-year storm actually has a 63 percent 10 Q. And then if you would, turn to
11 chance of occurring. 11 Page 53. I think we referenced this earlier,
12 From your testimony I know you didn't 12 the heading Coastal Restoration Measures and
13 come up with that conclusion. Correct? 13 Alternatives. Do you see that?
14 A. I did not. 14 A. I do.
15 Q. Someone else did. 15 Q. And I think you've indicated that you
16 A. That's right. 16 did not write this section of the report,
17 Q. Do you know who did, on the team that 17 although you would have had the opportunity to
18 you were working with? 18 review it?
19 A. I don't know the individual, no. 19 A. That's right.
20 Q. Do you know the group? Can you help 20 Q. Do you agree with the statement at the
21 my identify the group? 21 beginning of the section that coastal features
22 A. I believe it's from, um -- some of our 22 are the first line of defense against hurricane
23 team at the Engineering Research and 23 surge and waves?
24 Development Center, I believe. And I -- that's 24 MS. SULLIVAN:
25 just my recollection. 25 Objection.
Page 83 Page 85
1 Q. The Engineering Research and 1 A. I do.
2 Development Center, is that a part of the Corps 2 EXAMINATION BY MR. MEUNIER:
3 of Engineers organization? 3 Q. Do you know what is meant here by the
4 A. It is. 4 phrase coastal features? Is there a glossary?
5 Q. So this is not contract personnel, 5 A. There is an illustration. I don't
6 these would be federal government employees? 6 know what page it's on. Page 50.
7 Or I should ask, would it be federal government 7 Q. I'm sorry. Page what?
8 employees who came up with this part of the 8 A. Page 50 there is an illustration.
9 report? 9 Q. All right. You're referring to Figure
10 A. Um -- most likely, or contractors 10 5-1 on Page 50?
11 working for the Corps. 11 A. That's correct.
12 Q. Okay. But you don't know the names of 12 Q. The coastal features would include all
13 the specific individual involved? 13 of the, um -- the language in green print in
14 A. No, I don't. 14 that box?
15 Q. Well, can you tell me who the 15 A. (Indicating.)
16 supervisor or leader of that particular team 16 MS. SULLIVAN:
17 was? For this project. 17 His is not color.
18 A. I believe Edmond Russo, but I'm not 18 EXAMINATION BY MR. MEUNIER:
19 sure. There are lots of pieces of this -- 19 Q. All right. Well, you tell me what are
20 Q. Okay. 20 the coastal features identified in Figure 5-1.
21 A. -- working -- 21 A. Um -- the offshore, the shelf, barrier
22 Q. Did you finish? 22 islands, the sound, um -- marsh land bridge and
23 A. I am. 23 natural ridge.
24 Q. Is Mr. Russo still employed at the 24 Q. Now, we haven't used that phrase yet;
25 Corps of Engineers? 25 marsh land bridge. What does that mean?
22 (Pages 82 to 85)
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Page 86 Page 88
1 A. I don't know if there's a formal 1 of the coastal features, how does that land
2 definition. It's, um -- essentially, it's an 2 feature or coastal feature serve as a defense
3 area of marsh that connects two pieces of land, 3 against hurricane surge?
4 either dry land or some other feature. 4 MS. SULLIVAN:
5 Q. In this case, what are the two -- you 5 Same objection.
6 want to show it on the -- 6 A. It's really -- it's a very general
7 A. I was just going to see if I could. 7 term used in restoration planning. It would be
8 Q. Would it be easier to look at it on 8 very site specific to be able to answer your
9 that map, show me, or give me an example of a 9 question.
10 marsh land bridge using that -- 10 EXAMINATION BY MR. MEUNIER:
11 A. We don't have a map that shows it. 11 Q. Uh-huh.
12 Q. Would this show it? 12 A. You'd have to -- we'd have to show you
13 A. No, it doesn't. 13 one and, um -- it depends on where it is and
14 Q. Would that map show a marsh land 14 the type of habitat there, and then, um -- you
15 bridge -- 15 know, how it would function in terms of the
16 A. No. 16 whole system there.
17 Q. -- Mr. Miller? No? So by definition, 17 Q. Uh-huh. Well, marsh land bridges, can
18 a marsh land bridge refers to an area of marsh 18 they be either freshwater or saltwater marsh
19 between two land masses, is that what your 19 land bridges?
20 definition is? 20 A. Yes.
21 A. Roughly. Like I said, I don't know 21 Q. Do freshwater marsh land bridges
22 that there really is a technical definition for 22 typically support tree growth, plant growth?
23 it. It's a term used in the field, um -- um -- 23 MS. SULLIVAN:
24 I don't -- you know, but that's a good 24 Objection. Speculation.
25 definition. 25 If you know the answer --
Page 87 Page 89
1 Q. Are you familiar with the Bayou La 1 A. I don't know.
2 Loutre ridge? 2 EXAMINATION BY MR. MEUNIER:
3 A. I am. 3 Q. You don't know?
4 Q. Is that a marsh land bridge? 4 A. I'd have to, again, go to a site
5 A. No. 5 specific, um -- we'd have to go to a certain
6 Q. In Figure -- if you turn back, please, 6 location in order to answer that.
7 to the figure you called our attention to, 7 Q. Well, the paragraph I was referring to
8 Figure 5-1, in that illustration, in the box 8 at Page, um -- the first paragraph, again,
9 there, what are the two land masses that are 9 Page 53 under the heading Coastal Restoration,
10 being connected by the marsh land bridge? 10 Measures and Alternatives, states that
11 A. Well, this figure is a cross-section, 11 sustaining the integrity of the -- pronounce
12 so it doesn't show connectivity in that sense. 12 that word for me -- estuarine environments in
13 Q. How does a marsh land bridge operate 13 coastal Louisiana, it goes on to say, is
14 as one of the coastal features that provides 14 critical to ecological health as well as surge
15 the first line of defense against hurricane 15 and wave reduction.
16 surge and waves? 16 Do you see that?
17 MS. SULLIVAN: 17 A. I do.
18 Objection. 18 Q. In what way is sustaining the
19 A. Um -- you know, collectively, it's 19 integrity of those environments in coastal
20 part of a system of features, both natural and 20 Louisiana critical to surge and wave reduction?
21 manmade, that form a system, um -- that has an 21 MS. SULLIVAN:
22 effect on hurricane surge. 22 Objection. I think we've been
23 EXAMINATION BY MR. MEUNIER: 23 through this. It seems like he
24 Q. All right. My question is, just for a 24 doesn't have that information. This
25 minute isolating the marsh land bridge as one 25 isn't his area of expertise.
23 (Pages 86 to 89)
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Page 90 Page 92
1 But if you can answer that, go 1 heading Coastal Restoration Measures and
2 ahead. 2 Alternatives that you disagree with, based upon
3 MR. MEUNIER: 3 your professional training, your experience,
4 Well, he reviewed the report, had 4 the discharge of your job responsibilities with
5 an opportunity to edit it, I'm going 5 the Corps?
6 to assume for purposes of my question 6 MS. SULLIVAN:
7 he understands what's in it. He's the 7 Objection.
8 project leader for this. So, you 8 A. I agree with it.
9 know -- 9 EXAMINATION BY MR. MEUNIER:
10 EXAMINATION BY MR. MEUNIER: 10 Q. Let me now pay some attention to the
11 Q. At any time, Mr. Miller, if I ask a 11 next paragraph, if you will. And this one
12 question that you don't know the answer to, you 12 references preliminary month model analyses of
13 need to tell me. Okay? 13 storm surge levels and wave magnitudes.
14 A. Can you ask your question again for 14 You see that?
15 me? 15 A. I do.
16 Q. Okay. Why is it that sustaining the 16 Q. Do you know what model analyses are
17 integrity of the estuarine environments in 17 referred to here?
18 coastal Louisiana is critical to surge and wave 18 A. I do. Um -- but not -- I do know what
19 reduction? 19 models they're talking about, yes.
20 A. I can give you a general answer that 20 Q. What models are they referring to?
21 those features make up parts of the system, the 21 A. I believe that this is in reference to
22 wetland system across the state. I can't give 22 the -- what's called the ADCIRC model.
23 you an answer in terms of the, um -- the level 23 Q. Let's make sure we understand for the
24 or how it becomes critical in that sense in 24 record the letters you're using there. Ad?
25 terms of surge reduction, it's outside of my 25 A. Add, A-D, circ is C-I-R-C, which y'all
Page 91 Page 93
1 technical area. 1 find probably detailed in more fashion here in
2 Q. You would agree that the existence of 2 the report somewhere.
3 trees in, for example, a freshwater marsh area 3 Q. Okay.
4 would serve to break up wave action in a 4 A. I just don't know what page reference.
5 hurricane storm surge, wouldn't you? 5 And also probably some wave modeling, and I
6 MS. SULLIVAN: 6 don't know the technical -- I don't recall the
7 Objection. 7 technical name of that work.
8 A. Without knowing to what level, I think 8 Q. But all of the model analyses referred
9 that is true. 9 to here would be contained within this draft
10 EXAMINATION BY MR. MEUNIER: 10 report?
11 Q. Okay. 11 A. That's right.
12 A. But I can't give you a technical 12 Q. Okay. And you know that one is the
13 judgment on the level or degree to which that 13 ADCIRC model, and you think there are some wave
14 would occur. 14 models, as well.
15 Q. I understand. I'm not asking you the 15 A. That's right.
16 extent to which or the degree to which, but you 16 Q. Okay. And the statement is made that
17 understand and agree that trees in a freshwater 17 these model analyses of storm surge levels and
18 marsh would have the effect of reducing, to 18 wave magnitudes -- and again, I'm referring to
19 some extent, storm surge. 19 the first sentence here in that paragraph --
20 MS. SULLIVAN: 20 demonstrate the potential value of coastal
21 Objection. 21 features to lowering storm damage risk.
22 A. Yeah. I agree. 22 You agree with that?
23 EXAMINATION BY MR. MEUNIER: 23 A. Yes.
24 Q. Is there anything in this first 24 Q. And is that true because the presence
25 paragraph that we've been looking at under the 25 of coastal features, including forested marsh
24 (Pages 90 to 93)
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Page 94 Page 96
1 wetlands, freshwater marsh and wetlands, do 1 identification and is attached hereto.)
2 serve and play a role in the reduction of storm 2 EXAMINATION BY MR. MEUNIER:
3 surge and wave action? 3 Q. Let me now turn attention to the
4 MS. SULLIVAN: 4 document which is entitled Mississippi River
5 Objection. 5 Gulf Outlet Deep Draft De-authorization Interim
6 A. I don't know if I would segregate it 6 Report to Congress by the Corps of Engineers
7 down to just the habitat types that you 7 dated December 2006.
8 mentioned. I think the sentence, um -- is 8 Are you familiar with that document?
9 talking collectively about all coastal 9 A. Yes, I am.
10 features. 10 Q. Before I go there, I want to cover one
11 EXAMINATION BY MR. MEUNIER: 11 other subject real quickly.
12 Q. And those are the ones we talked about 12 Is it true that you have made a report
13 earlier, and you identified them in Figure5-1. 13 to Congress, or made a report to Congress in
14 A. That's right. 14 2006, regarding the feasibility of Category 5
15 Q. There's a collective contribution. 15 hurricane protection?
16 A. That's correct. 16 A. You're asking me personally?
17 Q. But one of the features that does 17 Q. Yeah.
18 contribute are the marsh land bridge features? 18 MS. SULLIVAN:
19 Correct? 19 Or the Corps, I think --
20 A. Yes. 20 EXAMINATION BY MR. MEUNIER:
21 Q. And one of the features that 21 Q. Well, I'm not suggesting the report
22 contributes would be the presence of trees in 22 was titled report by Gregory Miller.
23 freshwater forested wetland and marshes? 23 Have you been part of or a participant
24 Correct? 24 in an Army Corps of Engineers report to
25 A. Yes. 25 Congress in 2006 regarding the feasibility of
Page 95 Page 97
1 MS. SULLIVAN: 1 Category 5 hurricane protection?
2 Objection. 2 A. Feasibility is the word that's going
3 That's okay. 3 to trip me up here.
4 A. Yes. 4 Q. Okay.
5 EXAMINATION BY MR. MEUNIER: 5 A. But we did prepare a report for
6 Q. Now, the final reference I want to 6 Congress in 2006 on, um -- south Louisiana
7 make is to that concluding sentence in that 7 hurricane protection.
8 same paragraph. And again, this is sort of a 8 Q. All right. And is it referenced in --
9 repetition, but I want to make sure you agree 9 A. It is.
10 with the way this is phrased. It says, thus, 10 Q. It's referenced in Miller Number 2?
11 sustaining the integrity of the estuarine 11 A. If that's what you want to call it,
12 environments in coastal Louisiana is a key 12 sure.
13 component of a comprehensive storm risk 13 Q. I'm sorry. In the 2008 draft report?
14 reduction strategy for the region. 14 A. Yes.
15 Do you agree with that statement? 15 Q. For the record, just state where that
16 A. Yes. 16 2006 report to Congress is referenced.
17 Q. All right. I'd like to turn now to 17 A. The first reference is in the
18 another document. 18 authority itself on Page 3, which is where
19 (Off the record.) 19 Congress called for the production of that
20 MR. MEUNIER: 20 report in 2006.
21 We're going to mark for 21 Q. Uh-huh.
22 attachment as Miller Number 2 the 22 A. Give me a minute and I'll see if I can
23 February 2008 draft report that we've 23 find that.
24 been referring to. 24 Q. Okay.
25 (Exhibit G.M. 2 was marked for 25 A. Um -- Page 2, Paragraph 3.
25 (Pages 94 to 97)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
GREGORY MILLER 4/16/2008
Page 98 Page 100
1 Q. Could you read it for us? 1 Q. Was your role in the July 2006 report
2 A. This technical report expands on 2 the same as in this February 2008 report in
3 information presented in the LACPR preliminary 3 terms of those sections you wrote versus those
4 technical report that was submitted to Congress 4 sections you edited or reviewed?
5 in July, 2006 as well as the April, 2007 LACPR 5 That's poorly asked. Let me ask it
6 plan formulation atlas. The LACPR preliminary 6 this way: Were there sections of the July 2006
7 technical report and plan formulation atlas are 7 report which you wrote yourself?
8 available on line at www.lacpr.usace.army.mil. 8 A. Yes.
9 Q. So, there was a written July 2006 9 Q. Were there other sections which you
10 report to Congress, which is expanded upon in 10 didn't write but which you reviewed and edited?
11 this 2008 report, according to what you've just 11 A. Yes.
12 read, correct? 12 Q. Okay. Did the July 2006 report
13 A. That's correct. 13 contain within it the same language that we
14 Q. All right. And what was the title of 14 were referring to earlier that appears at
15 the 2006 written report? 15 Page 50 on coastal restoration?
16 A. Um -- LACPR preliminary technical 16 MS. SULLIVAN:
17 report to Congress, I believe. 17 Objection.
18 Q. When we were talking earlier about the 18 EXAMINATION BY MR. MEUNIER:
19 prior drafts that led up to this 2008 document, 19 Q. If you know?
20 was that what you were talking about when you 20 A. I don't know.
21 said there was a July, 2006 draft of a 21 Q. Oh. It's at Page 53, the paragraphs
22 technical report? 22 we went over about coastal features and effect
23 A. I don't know if I said draft. I said 23 on storm surge, et cetera. Let me ask it more
24 there's a July 2006 preliminary technical 24 generally.
25 report. 25 Was that topic discussed in the
Page 99 Page 101
1 Q. All right. When I was questioning you 1 July 2006 report to Congress?
2 earlier about the 2008 report and I asked about 2 MS. SULLIVAN:
3 earlier drafts or documents that led up to it, 3 Objection.
4 you talked about something in July of 2006. Is 4 EXAMINATION BY MR. MEUNIER:
5 this what you were talking about, the reference 5 Q. The topic being the role of coastal
6 here? 6 features in regard to storm risk reduction
7 A. That's right. That's right. 7 strategy and surge and wave reduction.
8 MR. MEUNIER: 8 MS. SULLIVAN:
9 And I think we made a record of 9 Objection.
10 our request for prior drafts of this 10 A. I believe so, but I -- (Nods
11 2008 document. I want to be specific 11 affirmatively.) I believe so.
12 about requesting, and we'll follow up 12 EXAMINATION BY MR. MEUNIER:
13 in writing, we'd like to request a 13 Q. Okay.
14 copy of the July 2006 preliminary 14 MR. MEUNIER:
15 report that Mr. Miller is now talking 15 I feel I have to do this for the
16 about. 16 record, and that is reserve the right
17 MR. MARSHALL: 17 to supplement this deposition with
18 I just want to point out there's 18 questioning about the July 2006 report
19 a website listed in there where it's 19 which we don't have. I'm not saying
20 available. 20 plaintiffs intend to do it, I'd just
21 MR. MEUNIER: 21 like to make that reservation
22 Okay. That makes it available to 22 expressed for the record.
23 some people, not necessarily me. But 23 EXAMINATION BY MR. MEUNIER:
24 I guess we'll -- 24 Q. Now, you were, Mr. Miller, the
25 EXAMINATION BY MR. MEUNIER: 25 co-author? I think earlier you questioned my
26 (Pages 98 to 101)
JOHNS PENDLETON COURT REPORTERS 800 562-1285
GREGORY MILLER 4/16/2008
Page 102 Page 104
1 use of that, but what role did you play in the 1 wrote.
2 preparation of the December 2006 document 2 A. Right. Understand, it's a team
3 dealing with the deep draft de-authorization of 3 effort, too.
4 the MRGO? 4 Q. Yeah.
5 A. I am the senior project manager for 5 A. People may have written pieces of it,
6 the deep draft de-authorization. The role I 6 and, you know, I helped assemble parts of it or
7 play is, um -- team leader, and in terms of the 7 wrote an outline. Um -- parts of introduction
8 report, um -- helping to manage the draft, 8 and background, um -- I'd have to see the text
9 um -- the preparation of the drafts and then 9 just to see if I recall, um -- specifically
10 the final report, and the clearance of that 10 which. Um -- parts of the present conditions.
11 report for delivery to the Congress. 11 Um -- the plan formulation section. Option 2B,
12 Q. And do I take it that there were 12 Option 3, Option 2C. Shoreline protection. I
13 sections of that report which you personally 13 think -- I'd have to see it, but I believe I
14 wrote, and other sections which you did not 14 wrote the introduction part of the systems
15 write but reviewed and edited? 15 evaluation. And then parts of the results and
16 A. That's correct. 16 conclusions.
17 Q. Okay. Do you have a copy of that 17 Q. Okay. Explain to me when and how you
18 de-authorization interim report? 18 first became involved in the process that led
19 MR. MEUNIER: 19 to this de-authorization report.
20 Does anyone on the other side of 20 A. I believe it was at the direction of
21 the table have that? 21 Col. Wagenaar. I don't actually recall
22 MS. SULLIVAN: 22 specifically.
23 Don't have a hard copy, no, not 23 Q. Who?
24 today. 24 A. Col. Wagenaar.
25 EXAMINATION BY MR. MEUNIER: 25 Q. What's his position?
Page 103 Page 105
1 Q. I've got some questions about it, and 1 A. He was the district engineer.
2 unfortunately I only have one copy, so we'll 2 Q. Okay. Can you tell me when in time or
3 try to work through to the lunch break on this, 3 approximately when in time Col. Wagenaar first
4 and if we really find the going hard because 4 approached you and asked you to get involved in
5 we're sharing a copy we'll get a copy made. 5 this?
6 I suppose for completeness we should 6 A. The summer of 2006.
7 go to the table of contents, and I want to ask 7 Q. Summer of 2006?
8 you the same question I asked you with respect 8 A. Right.
9 to the 2008 report, which is, which sections of 9 Q. This phrase de-authorization, do I
10 the de-authorization report of 2006 did you 10 understand correctly that that is part of a
11 actually write as opposed to reviewing and 11 standard process or series of steps taken to
12 editing? And I'll hand you Pages VIII and IX, 12 remove Congressional authorization for a
13 which are the table of contents. 13 project?
14 (Exhibit G.M. 3 was marked for 14 MS. SULLIVAN:
15 identification and is attached hereto.) 15 Objection.
16 A. I had an extensive role in all of it. 16 EXAMINATION BY MR. MEUNIER:
17 EXAMINATION BY MR. MEUNIER: 17 Q. You understand my question?
18 Q. More specifically, did you write all 18 A. In this particular case, that's the
19 of it? 19 language that the Congress used. They called
20 A. No. 20 for that effort, and it's titled exactly what
21 Q. I'm trying to again distinguish 21 they asked for.
22 between the sections that you actually wrote 22 Q. Okay. So by an Act of Congress, there
23 and the others which you edited. 23 was a direction given to the Corps to study the
24 A. The executive summary. 24 de-authorization of the MRGO?
25 Q. Now, wait. These are the sections you 25 A. That's right. I'd have to look at the