In the Matter of:

Upstream Addicks and Barker (Texas) Flood-Control

Reservoirs

September 13, 2019

Trial
Vol. 11

Condensed Transcript with Word Index

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1 IN THE UNITED STATES COURT OF FEDERAL CLAIMS 1 APPEARANCES CONTINUED:
2 2
3 IN RE: UPSTREAM ADDICKS AND ) Master Docket No. 3 WILLIAMS, KHERKHER, HART, BOUNDAS, L.L.P.
4 BARKER (TEXAS) FLOOD-CONTROL ) 17-9001L 4 BY: EDWIN A. EASTERBY, ESQ.
5 RESERVOIRS. ) 5 8441 Gulf Freeway, Suite 600
6 _________________________________) 6 Houston, Texas 77017
7 7 (713) 230-2200
8 8 aeasterby@williamskherkher.com
9 Courtroom 5 9
10 Howard T. Markey National Courts Building 10 VB ATTORNEYS
11 717 Madison Place, N.W. 11 BY: VUK VUJASINOVIC, ESQ.
12 Washington, D.C. 12 6363 Woodway Drive, Suite 400
13 Friday, September 13, 2019 13 Houston, Texas 77057
14 10:00 a.m. 14 (713) 224-7800
15 Trial Volume 11 15 vuk@vbattorneys.com
16 16
17 BEFORE: THE HONORABLE CHARLES F. LETTOW 17 ON BEHALF OF THE DEFENDANT:
18 18 UNITED STATES DEPARTMENT OF JUSTICE
19 19 ENVIRONMENT & NATURAL RESOURCE DIVISION
20 20 BY: WILLIAM SHAPIRO, ESQ.
21 21 501 I Street
22 22 Suite 9-700
23 23 Sacramento, California 95814
24 24 (916) 930-2207
25 Susanne Bergling, RMR-CRR-CLR, Reporter 25 william.shapiro@usdoj.gov

3140 3142
1 APPEARANCES: 1 APPEARANCES CONTINUED:
2 2
3 ON BEHALF OF THE PLAINTIFFS (IN RE UPSTREAM ADDICKS 3 UNITED STATES DEPARTMENT OF JUSTICE
4 AND BARKER (TEXAS) FLOOD-CONTROL (RESERVOIRS): 4 ENVIRONMENT & NATURAL RESOURCE DIVISION
5 BURNS CHAREST, L.L.P. 5 BY: KRISTINE S. TARDIFF, ESQ.
6 BY: DANIEL H. CHAREST, ESQ. 6 53 Pleasant Street
7 LYDIA A. WRIGHT, ESQ. 7 Fourth Floor
8 LARRY VINCENT, ESQ.9 8 Concord, New Hampshire 03301
9 900 Jackson Street 9 kristine.tardiff@usdoj.gov
10 Suite 500 10
11 Dallas, Texas 75202 11 UNITED STATES DEPARTMENT OF JUSTICE
12 (469) 444-5002 12 ENVIRONMENT & NATURAL RESOURCE DIVISION
13 dcharest@burnscharest.com 13 BY: LAURA DUNCAN, ESQ.
14 lwright@burnscharest.com 14 MAYTE SANTA CRUZ, ESQ.
15 15 601 D Street, N.W.
16 IRVINE & CONNER, L.L.C. 16 Third Floor
17 BY: CHARLES W. IRVINE, ESQ. 17 Post Office Box 7611
18 4709 Austin Street 18 Washington, D.C. 20044
19 Houston, Texas 77004 19 (202) 305-0466
20 (713) 533-1704 20 (202) 305-0506 (Facsimile)
21 charles@irvineconner.com 21 laura.duncan@usdoj.gov
22 22
23 23
24 24
25 25

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1 APPEARANCES CONTINUED: 1 PROCEEDINGS
2 2 - - - - -
3 UNITED STATES ARMY CORPS OF ENGINEERS 3 THE COURT: Please be seated.
4 GALVESTON DISTRICT, OFFICE OF COUNSEL 4 Good morning.
5 BY: JAMES E. PURCELL, ESQ. 5 ALL COUNSEL: Good morning, Your Honor.
6 2000 Fort Point Road 6 THE COURT: The case before the Court this
7 Suite 369 7 morning is the Upstream Addicks and Barker (Texas) Flood
8 Galveston, Texas 77550-1229 8 Control Reservoir case, Number 17-9001.
9 (409) 766-3822 9 Mr. Charest, Mr. Irvine, would you introduce
10 james.e.purcell@usace.army.mil 10 yourselves and your colleagues, please, as counsel for
11 11 the 13 test properties.
12 12 MR. CHAREST: Yes, sir. Daniel Charest for the
13 ALSO PRESENT: 13 Upstream Plaintiffs. Next to me is Charles Irvine, and
14 Matt Boles, IT, Plaintiff 14 going around the table, we have Vuc Vujasinovic, Armi
15 Dawn Miller, IT, Defendant 15 Easterby --
16 16 MR. EASTERBY: Good morning, Your Honor.
17 17 MR. CHAREST: -- Lydia Wright, Larry Vincent, and
18 18 our colleague, Matt Boles, who is our AV tech who is
19 19 going to help us today.
20 20 THE COURT: Welcome.
21 21 And, Mr. Shapiro, would you introduce yourself as
22 22 counsel for the Government and introduce your colleagues
23 23 as well.
24 24 MR. SHAPIRO: Good morning, Your Honor. Bill
25 25 Shapiro with the United States Department of Justice.

3144 3146
1 INDEX 1 With me is Kris Tardiff with the Department of Justice.
2 2 MS. TARDIFF: Good morning, Your Honor.
3 CLOSING ARGUMENT PAGE 3 THE COURT: Welcome.
4 MR. CHAREST 3146, 3296 4 MR. SHAPIRO: Dawn Miller, Mayte Santa Cruz --
5 MS. WRIGHT 3209 5 MS. SANTA CRUZ: Good morning, Your Honor.
6 MR. EASTERBY 3220 6 MR. SHAPIRO: -- Laura Duncan.
7 MR. VUJASINOVIC 3225 7 And from the U.S. Army Corps of Engineers, Office
8 MR. SHAPIRO 3229, 3315 8 of Counsel, James Purcell.
9 9 MR. PURCELL: Good morning, Your Honor.
10 10 THE COURT: Good morning.
11 11 We are here for a closing argument in the
12 12 upstream case, and with that, because the Plaintiffs
13 13 have the burden of proof, Mr. Charest, would you begin.
14 14 MR. CHAREST: May it please the Court, Your
15 15 Honor.
16 16 THE COURT: I will say the Court has looked at
17 17 the briefs and has looked at everything except all of
18 18 the most recent filing yesterday or -- well, it was
19 19 yesterday, late, on the motion for -- by the Plaintiffs
20 20 to supplement the record. So I have not quite finished
21 21 that.
22 22 But go ahead, Mr. Charest.
23 23 MR. CHAREST: Well, that was my first question,
24 24 was more a point of order. Does the Court want to
25 25 address those evidentiary issues or just get right to

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1 the closings here? 1 built the Addicks and Barker Dams, the Buffalo Bayou
2 THE COURT: The Court will defer acting on those 2 project, for the sole purpose of -- and I'll quote from
3 motions. There are a couple of motions, one by the 3 Joint Exhibit 5, the Definite Project Report -- "for the
4 Government to correct the trial record and the other by 4 protection of the City of Houston, Texas, and the
5 the Plaintiffs to supplement the trial record, and the 5 Houston ship channel." The sole beneficiary of this
6 Court will defer those until the disposition of the 6 project is the properties downstream of the dams.
7 merits of the case. 7 That's confirmed in testimony by both Mr. Long and
8 MR. CHAREST: Very well, sir. I do intend to 8 Mr. Thomas, and the documents go on on that at length.
9 refer to the two documents during this closing. 9 In the Water Control Manual, at page 7-4, it
10 THE COURT: That's fine. 10 says -- and I'll read the quote to the Court -- "In
11 MR. CHAREST: Thank you, sir. 11 keeping with the primary objective of flood control for
12 THE COURT: They are before the Court. 12 Addicks and Barker Reservoirs, the general plan for the
13 MR. CHAREST: Thank you. 13 reservoir regulation, will be to operate the reservoirs"
14 And there was one -- this is a -- I will make an 14 -- that's the upstream area -- "in a manner that will
15 oral motion as an agreed point. We noted that in the 15 utilize, to the maximum extent possible, the available
16 transcript, sir, on page 2960, at line 22, to 2961, line 16 storage to prevent the occurrence of damaging stages on
17 4, there's a reference to Micu 0016, Micu 16, and it 17 Buffalo Bayou" -- that's the downstream area -- "within
18 should have been Micu 61. The numbers are inverted, and 18 the limits placed by the constraints of the project
19 we didn't note that the first time around, and I believe 19 operations," meaning they will store as much water as
20 that's unopposed, to change that in the record. 20 physically possible upstream to protect those homes
21 MR. SHAPIRO: That's correct. We do not oppose 21 downstream, and that's by design, by operation exactly
22 that. 22 what happened in this case here.
23 THE COURT: All right. Thank you, Mr. Shapiro. 23 The other point to understand is that the Corps,
24 We will take that into account. 24 because it's a congressional mandate, cannot change
25 MR. CHAREST: Thank you, sir. 25 those operations without going back to Congress. So

3148 3150
1 Well, first, before we begin, sir, I want to just 1 even -- and that's cutting ahead to later on in the
2 note for the record and for everyone that may be 2 argument, but if Harvey happened again today, the Corps
3 listening at home that it is nearly, almost to the day, 3 would do the exact same steps. There is no discretion
4 two years since we filed the first upstream case under 4 allowed. They would have done the same thing because
5 the Micu case, and while people that are not involved in 5 that is the congressional mandate.
6 litigation would think that two years is a long time, I 6 The second key point, the overarching point on
7 would commend everybody here, both sides and the Court, 7 this is the operating design, the operating concept of
8 and thank the Court for getting us here so quickly. 8 the dam, which was to impound stormwater on private
9 And I want to recognize also, as the Court had me 9 property as part of the reservoir that was designed for
10 introduce everybody, we had an excellent team together 10 the dam of this size.
11 for the Plaintiffs, both here in the courtroom and the 11 Could you do the graphic, please? What do I need
12 folks, particularly the trial paralegals, back at home 12 to do here? Thank you.
13 in the office. I want to recognize them. 13 So when the Corps designed the dam, it used as
14 THE COURT: I'm struck by the fact that this 14 its design storm the Hearne Storm from 1899, which was
15 courtroom is so much smaller than the one in Houston 15 35.1 inches of rain over 104 hours. Rather than acquire
16 that we are probably a little cramped from your 16 sufficient land to occupy -- to allow that storm pool to
17 perspective, Mr. Charest. 17 occupy government-owned land, the Government used the
18 MR. CHAREST: Well, I will try not to sit in 18 1935 storm to decide where to draw the takings line.
19 Mr. Shapiro's lap when he's doing his argument. 19 And so --
20 So the core point, the two central tenets that I 20 THE COURT: Well, that poses a question --
21 think in this case that are important to understand from 21 MR. CHAREST: Yes, sir.
22 the beginning all the way through the end are these: 22 THE COURT: -- because the 1940 final design
23 number one, the purpose of the dam, and number two, the 23 appeared to take the lesser storm. The Court was well
24 operating concept of the dam. 24 aware of the Hearne Storm and the volume of water,
25 By congressional mandate, the Corps of Engineers 25 rainfall, and so on that would be generated by such a

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1 storm.
2 MR. CHAREST: Well, that's not entirely right,
3 sir. I think for the building of the dam, the design of
4 the dam, the Government used the Hearne Storm. For the
5 acquisition of land -- a separate question -- it used
6 the 1935 storm. So it wasn't that it built the dam that
7 was big enough for the 1935 storm. It built the dam
8 that was big enough for the Hearne Storm and intended to
9 occupy water for the Hearne Storm.
10 THE COURT: I thought it built the dam under the
11 1935 storm criteria plus three feet.
12 MR. CHAREST: No, sir. That was only for the
13 land acquisition decision.
14 THE COURT: Ah.
15 MR. CHAREST: That is not for the dam design --
16 the dam design. The design storm for the size of the
17 structure was absolutely the Hearne Storm, and that's
18 the -- that's the -- not that this is a fault issue, but
19 that was where the -- that decision is what imposed on
20 the private property the risk of flooding,
21 fundamentally, because when you build the dam, a
22 structure -- here we go, I don't really need to point
23 there, but it's okay -- when you build a structure big
24 enough for the Hearne Storm but you only buy land for a
25 smaller storm, you have, by design and intent, exposed
3153
1 THE COURT: The Government would take the
2 position that the eighties enhancement to the
3 impoundments, if you will, or the dams themselves did
4 not actually raise the effective level of the pool
5 behind the dams because the spillways -- the auxiliary
6 spillways on each footing at the ends of the dams were
7 not actually increased. They were hardened but not
8 increased. Is that correct?
9 MR. CHAREST: That is definitely the Government's
10 position, and, in fact, liability in this case and what
11 I'm talking about here doesn't necessarily depend on the
12 increase in size of the dam, because what that did was
13 it posed additional risk between, say, like that red
14 line and the top of the gray line, and the fact is the
15 Hearne Storm was roughly the equivalent of the Harvey
16 storm.
17 So that additional work doesn't matter so much in
18 terms of our case, but what does matter for our case was
19 the addition of the gates, which absolutely imposed more
20 water upstream, closing several gates, and the
21 additional flow on the gates that are -- that were
22 openable.
23 And so the bulwarks of the side and the increase
24 in the structure, making the structure bigger, doesn't
25 necessarily impose more water, because the water didn't

3152 3154
1 these private properties to flooding risk. 1 quite get to that level except at the northern part of
2 And the point that the Court asked -- let me see 2 -- I think it was Addicks we saw. And the part that
3 if I have it here. It's in the Definite Project Report 3 went around there we don't think is all that relevant
4 where they talk about the size of the storm being the 4 vis-à-vis the pool height, but the decision to change
5 Hearne Storm for the structure, and then they make a 5 the gates from one that would just deflect -- hold
6 second decision, okay, but for the land, we are only 6 water, detain it, and let it pass through to one that
7 going to use the 35 plus three feet. So you're right 7 would stop water and hold it for an extended period of
8 about that, but it's not the size part. It's only the 8 time, that was a key decision that the Corps made that
9 land part. 9 did impose even more risk on the upstream properties.
10 THE COURT: Thank you. 10 Does that address your question?
11 MR. CHAREST: Yes, sir. 11 THE COURT: Yes.
12 And then going forward, through different 12 MR. CHAREST: All right.
13 modifications to the structure, including putting gates 13 THE COURT: At some point I will want to ask
14 in and -- this is not working, Matt -- okay, including 14 about the -- well, I think of the sinkage, actually, of
15 putting gates on the outlets, building up the auxiliary 15 the land in this area, because it appeared to change the
16 spillways, and making the main body of the structure 16 elevations somewhat, especially of the footing areas on
17 higher, number one; deciding to restrict the outflow 17 the fringe or the sides of the dam. Is that correct?
18 over time from -- to now just a max of 2000 cubic feet 18 MR. CHAREST: The subsidence question? Is
19 per second, number two; and number three, learning more 19 that -- are you talking about subsidence and its effect?
20 about storm science and how to build a more safe dam, 20 THE COURT: Yes.
21 the Government effectively raised even the level from 21 MR. CHAREST: Well, again, I think -- I am
22 the Hearne Storm up to what we now in the modern day 22 getting over my skis in terms of hydrology here, to be
23 call the spillway design flood, and still imposing risk 23 sure, but my understanding is that the amount of water
24 on top of more private properties. Again, that's the 24 that passed around the northern part of Addicks was
25 operating concept. 25 immaterial in terms of the overall pool level, and so

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1 while the Government did note subsidence and we had some
2 conflicting testimony from the government, you know,
3 witnesses about how much water was going around the
4 corner there, from our perspective, we treated that as
5 if it didn't exist, because it didn't affect the pool
6 fundamentally.
7 If the dam had gone higher and had gone over the
8 spillways as designed in terms of, like, emergency
9 releases and that sort of thing, if a flood had gone
10 higher, then the exact height or not of those -- of the
11 shoulders of the dam would be much more relevant, but
12 since it went up to the lip but not over, it's less
13 relevant in our view from the perspective of the impact
14 of the dam.
15 THE COURT: Thank you.
16 MR. CHAREST: Yes, sir.
17 And so going back to the operating concept, by
18 only acquiring land for the 1935 storm but building a
19 dam that was much higher and effectively even higher
20 than that, the Government accepted the risk as part of
21 its operating design that it would flood private
22 property as part of a dam, a permanent structure within
23 the contour lines that it was designed to hold. And
24 it's a really important -- I'm glad you asked the
25 question, because it's really important. The dam from
3156
1 its day-one inception was designed to hold the Hearne
2 Storm, that red space there, which means that every
3 private home within that contour line was within the
4 expected result of this dam.
5 And Ms. Johnson-Muic quoted --
6 THE COURT: Well, I don't know about expected.
7 It depends on the frequency of such storms. It was
8 certainly conceptually possible.
9 MR. CHAREST: Sure, sure, yeah, and the -- well,
10 we can talk about that. I'll take that up right now if
11 you like, Your Honor, and we can go to Exhibit B from
12 the documents we moved to admit, and they looked at that
13 exact question about whether meteorologically it was --
14 the proper -- was it valid, a valid construct to move
15 the Hearne Storm over the Addicks and Barker watersheds.
16 THE COURT: The Hearne Storm, if the Court
17 recalls correctly, was about 90 miles away on the Gulf.
18 Is that right?
19 MR. CHAREST: That's correct, yes, sir.
20 And if you, Matt, if you go to page -- where are
21 we, 5? Page 5, please, of the doc, which is 250.
22 At the bottom they start -- yeah, right there --
23 they start talking about whether or not it's a valid use
24 of the Hearne Storm -- whether using the Hearne Storm
25 was valid for the design, again, of a structure.
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1 Now, the Government will tell you, well, they're
2 thinking about a different structure, and, therefore,
3 these documents are irrelevant. Well, the -- what
4 the -- the form of the structure doesn't really affect
5 the meteorology is our point, and so when they are
6 talking about the details behind the storm and learning
7 about whether this type of storm is valid to use for a
8 design storm in the area, we think these documents are
9 relevant, which is an issue for --
10 THE COURT: The documents, as the Government
11 points out, seem to relate to a proposal by the Harris
12 County Flood Control District. Is that correct?
13 MR. CHAREST: That is correct, sir. The Harris
14 County Flood Control District -- I'm going to -- to
15 answer that question, I'll switch to Exhibit A, please,
16 if you would, Matt, and turn to page 14, Bates number
17 14.
18 Basically the documents were rejecting a proposal
19 by the Harris County Flood Control District to use a
20 smaller design storm, but at the bottom, the Corps says
21 that such a rainfall, talking about the Hearne Storm, is
22 considered as likely to occur with a frequency of once
23 every 50 years, and by contrast, the rainfall, to the
24 extent of the Authority's assumption, is believed likely
25 to occur only once every 14 years.
3158
1 And so they're rejecting the Authority's view
2 because they thought it was not frequent enough, and the
3 Corps at that time believed that the Hearne Storm would
4 be with a frequency of every 50 years. And by the way,
5 if you do the math, you go from Hearne in 1899, then you
6 have Allison and then Claudette and then Harvey, so they
7 underreported it. They underexpected it, actually,
8 because you have four storms of that size in 70 years --
9 no, sorry, a hundred years.
10 So that's the -- to respond to the Authority,
11 that's what the Authority was doing, and the Corps
12 rejected it because the storm that they thought was more
13 valid was the Hearne Storm. Again, to your question
14 about is it conceptually possible, it was more than
15 conceptually possible. They said it was the largest
16 probable storm to come into the area, and that's the
17 point, the largest probable storm.
18 And going back, if you would, Matt, to Exhibit B.
19 Just cut to the chase, on page 7 at the top, the
20 top paragraph, the conclusion -- after having looked at
21 different aspects of three different criteria that they
22 determined were necessary to evaluate in order to
23 determine whether or not to use this storm, the
24 conclusion was that a great -- the great storms -- the
25 occurrence of a great storm like the Hearne Storm and
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1 the susceptibility of the Buffalo Bayou area to a storm
2 as great as the 1899 storm must be considered in
3 designing any flood control works in the Houston area,
4 because Buffalo Bayou is -- to quote the Corps --
5 "susceptible" to a storm like the Hearne Storm,
6 susceptible meaning, of course, likely to bear.
7 So that's the notion of -- you know, the
8 Government wants to imbue the issue of foreseeability
9 with this periodicity question. That's, I think, an
10 argument we don't have to undertake, because in my
11 view -- and I think the law supports it -- if you build
12 a permanent structure designed to hold back water, as we
13 showed, to the level of the Hearne Storm, and it never
14 rains, then there's no -- then that event has never
15 happened, but the intended consequence, the first step
16 under Ridge Line, the intended consequence is that the
17 dam was designed to hold back that water, and when the
18 rain comes, it does exactly what it was designed to do,
19 fills the water up within the contour lines that the
20 engineers that built it expected and planned for it to
21 happen.
22 Harvey was not a situation where the water was
23 rushing over the top, wild, out of control. It was,
24 literally, by the book and as planned, and that's an
25 important thing to remember. The Corps keeps talking
3160
1 about, oh, well, we had, you know, a zero-sum game and
2 this big emergency, but there was no emergency. They
3 never actually invoked the Emergency Action Plan, number
4 one; and number two, they had been planning for this
5 event for 70 years, and when it happened, they followed
6 the book and went by the book.
7 And so the notion of it was unprecedented, well,
8 we'll talk about that in just a second, but that's -- it
9 was well within their design scope, and they had a plan
10 for it, and they executed the plan, and they would do it
11 again the exact same way tomorrow.
12 And going back to where I am on the operating
13 concept, Ms. Johnson-Muic agreed in trial to these
14 questions (as read):
15 "QUESTION: In the original construction of the
16 Addicks and Barker dams, the government accepted the
17 risk of inundating private land when it set the original
18 takings line for the Addicks and Barker reservoirs,
19 correct?
20 "ANSWER: Yes.
21 "QUESTION: And every decision thereafter --
22 we're talking about not to acquire lands when you're
23 talking about upstream land of a dam -- involved
24 accepting a risk of flooding to some extent. At least
25 to the extent the damn can hold water to that level.
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1 "ANSWER: Yes."
2 So that's the Corps' land purchase person talking
3 about the way they view the setting of the takings line.
4 If you set the takings line below the design level of
5 that dam, you, the Corps, accept the risk that you will
6 flood above it, and that's what they did here. That was
7 the operating concept of this dam.
8 THE COURT: Well, let's talk a little bit about
9 the fact that the actual dams and attendant facilities
10 were not precisely built under the 1940 specifications.
11 There were a couple of elements that were elided.
12 MR. CHAREST: Yes, sir. So that's a great point
13 and one I think I probably glossed over, but you're
14 exactly right. In connection with having originally
15 just sluice gates in the dam construction, the overall
16 project itself was designed to have these dams
17 effectively be funnels, if you will, that will then put
18 water into channels that will do -- would transit the
19 water around Houston.
20 Those additional plans were never completed, and
21 instead they converted these dams which were not built
22 to do -- not built to retain water in the way they were
23 into retention dams.
24 THE COURT: There also was the elimination of
25 a -- I think of it as a levee, but in any event, a
3162
1 barrier for Cypress Creek on the north end of Addicks,
2 and at a given point with a given rainfall, the
3 testimony was uniform that Cypress Creek would overflow
4 into Addicks, and that happened during Harvey. It
5 happened presumably during other storms as well. To
6 what extent did that affect what was going on respecting
7 Harvey?
8 MR. CHAREST: Well, you know, it -- you are
9 absolutely correct about the Cypress Creek and the
10 hydraulic effect of Cypress Creek overflowing into
11 Addicks reservoir, and that had happened before, and it
12 did happen in Harvey, and will happen in every major
13 storm that tests the boundaries of these dams. So
14 that's absolutely something to take into consideration.
15 By eliminating the -- by eliminating the levee
16 that was going to be built for Cypress Creek, what the
17 Corps did, if I remember correctly, was they added
18 another foot of takings to the Addicks Dam to just sort
19 of make up for the difference. That's my memory.
20 Someone can correct me? Oh, I'm right. That's my
21 memory of that.
22 And so the Corps did something to address the
23 lack of the levee --
24 THE COURT: So they increased the amount of
25 government-owned land to take that into account. They
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1 did it at some point in the forties, presumably.
2 MR. CHAREST: Correct, sir, when they did the
3 land acquisition. They did not do a second round of
4 acquisition. There was one round of acquisition, but by
5 the time they did the acquisition of land, they knew the
6 Cypress Creek levee wasn't happening, and so they
7 purchased a little more land to just -- and so instead
8 of 1935 plus three feet, it was 1935 plus four feet, I
9 think, is my memory of it.
10 But the other aspects of the dam, the overall
11 Buffalo Bayou project as originally developed and the
12 parts that were removed absolutely put more pressure on
13 the dams, meaning made the dams susceptible to carrying
14 more and more water behind them and, therefore, imposing
15 more and more water upstream.
16 And so had, for example, the dams been built as
17 designed, the retention aspect of the Addicks and Barker
18 Dams would not have been -- would not have been used so
19 much and the --
20 THE COURT: Just to clarify the point, I take it
21 the channel that was to carry water from the dams south
22 of Houston to the Gulf, but avoiding Buffalo Bayou and
23 the downtown Houston area and the ship channel entirely,
24 I take it that that wasn't built? What was the reason
25 it wasn't built?
3164
1 MR. CHAREST: The best information we have on
2 that, sir, is that the dam was built around the time of
3 World War II, and it just was a budgetary issue
4 fundamentally. That's my -- I don't know that we have
5 very solid facts on that, but that's my understanding
6 based on inferences from the documents, and we don't
7 contest that.
8 I mean, and what's a really good point actually
9 to make more generally, we are not making the argument
10 that the Government should have done X, Y, or Z. The
11 Government does what the Government does, and we just
12 live with it. You know, we, the landowners, the
13 property owners, suffer the consequence of the
14 Government's decision, but we're not here telling the
15 Government you should have done X, Y, or Z. This is not
16 a tort case at all.
17 So our position, Your Honor, is that,
18 fundamentally, that design concept of when you build a
19 dam sufficient to hold back Hearne and water comes in
20 effectively the same size as Hearne and floods private
21 property that was not previously condemned, that is
22 enough for the foreseeability inquiry. Under Ridge
23 Line, it's intentional or foreseeable. There is words
24 about predictability. In my mind, all these tests, they
25 may have a little bit of varying inferences, you know,
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1 in terms of what word you want to use, but because there
2 is obviously a man-made dam, it was from the original
3 plan to use these spaces as additional storage capacity,
4 I have no question that we -- and they knew about the
5 Hearne Storm back in '38 and earlier used it as the
6 reasonable, expected largest storm in the area. To me,
7 there's no question about whether you do foreseeability,
8 intent, you know, predictability. That's our argument.
9 The Government has a few counter-attacks to that,
10 the first one being a single flood. They keep urging,
11 look, there is only one flood ever happened, and,
12 therefore, you can't -- you can't call it a taking.
13 I've looked at Stockton and Quebedeaux to say that
14 that's incorrect.
15 Stockton says that one actual flooding is enough
16 when the property is upstream of the dam, like us, below
17 the contour line to which the dam is designed to impound
18 water, like us, even if there has been but what
19 flooding, because the result is only that which the
20 engineers intended the dams to achieve.
21 So when the engineers, back in 1938, '39, '40,
22 all the way to the -- when they finished construction,
23 drew this dam out. They had the design storm in mind.
24 How much water will this dam hold? Draw a line. This
25 is where we're going to go. Rather than purchase water
3166
1 to that level, they went down to the '35 storm and
2 purchased only there, and that's that gap which is their
3 fundamental operating concept that we're talking about
4 when we're talking about Stockton.
5 In Quebedeaux, it says effectively the same
6 thing. "On the same basis, it's conceivable that a
7 takings might lie when the Defendant, using a permanent
8 structure like the Addicks and Barker Dams, purposefully
9 floods a property but once and expressly reserves the
10 right to do so in the future. In this instance, it's
11 conceivable that Defendant's actions may be viewed not
12 as a 'isolated invasion' but, rather, as reserving a
13 flowage easement or the affected property." That's
14 Quebedeaux.
15 And so that's what we think our cases are about,
16 is that you have a permanent structure that has proven
17 already that it is capable of putting federally retained
18 waters on private property -- for the benefit, by the
19 way, of downstream -- and it's done it once, we've seen
20 storms like this in the area, we know that the
21 Government new about storms like this when it built the
22 dam and built the dam for storms like this.
23 And so for us the single-flood theory -- first
24 off, the Supreme Court's already told everybody that
25 seems to care that there's no hard and fast rules, it's
7 (Pages 3163 to 3166)
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3167
1 all a multifactor test, and we should know that anyway,
2 so we should reject the single-flood theory anyway, but
3 even if it did happen, if there was such a thing, we
4 still satisfy it because of the intentionality around
5 the dam and the foreseeability around the water.
6 And so I'm going to -- from here, having -- I was
7 supposed to do that very quickly, but those two key
8 points, I am going to try to walk through the Ridge Line
9 and Arkansas Game & Fish factors to try and flesh those
10 out.
11 THE COURT: You seem to treat Ridge Line and
12 Arkansas Game & Fish as having different tests. That is
13 not necessarily so.
14 MR. CHAREST: In fact, I was literally going to
15 say the same thing. When I sat down getting ready for
16 this, I put the Arkansas Game & Fish factors on one side
17 and I put the Ridge Line factors on the other side, and
18 what someone on my team described looked like a mad
19 scientist, I circled them and connected the dots, and I
20 think that you're exactly right. I think they are --
21 they are asking the same thing.
22 I think analytically they might be different
23 because Ridge Line is more seriatim and Arkansas Game &
24 Fish is a multifactor kind of balance, but
25 fundamentally, I'm a trial lawyer, I think about facts,
3168
1 and the facts that we've proven satisfy both of those
2 tests completely. So that's -- I agree with you, Your
3 Honor, that they are effectively the same type of test.
4 So we talked already significantly about
5 foreseeability and the -- you know, taking is
6 foreseeable if it's the direct, natural, probable result
7 of the government action. Similarly, the intentionality
8 of effects, both the Ridge Line and the Arkansas Game &
9 Fish factors. And as I've said now probably five times,
10 you know, when you build a dam designed to hold back
11 water and the water comes and it holds back water, there
12 is no one that should be surprised by that. There is
13 not any foreseeability issue. It was intended. It was
14 the predictable result and not incidental.
15 When I think about Ridge Line, that's my kind of
16 teaching -- when the light went off in my head with the
17 water flowing off the parking lot into the neighboring
18 complex, whatever it was, and, you know, that was a
19 government action, and maybe it was foreseeable, but it
20 wasn't intentional. It wasn't the -- it was an
21 incidental effect of the government taking or the
22 government action.
23 Our situation is as if, well, we were underneath
24 that parking lot and they just bulldozed us down and put
25 tar over top of us. You know, that was the intentional
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1 part of what the Government did. They used our
2 property. They used the private property of upstream
3 homes as a water -- as a detention pond to prevent
4 flooding downstream.
5 We talked a little bit already about the
6 periodicity, so I am going to rehash that a little bit,
7 but the -- I think those 1938 documents end the
8 question, but even if those don't come in the record,
9 the --
10 THE COURT: I don't necessarily think it makes
11 any difference whether it's a 50-year storm or a
12 775-year storm, because it happened in the Hearne case,
13 and it came close in a couple of these others,
14 Claudette, Allison, the Tax Day, and so on. Houston and
15 the Gulf area is susceptible to those kinds of storms.
16 Now, they have increased in frequency over the
17 past couple of decades, there's no doubt about that.
18 Whether it's climatological or not is another matter.
19 We don't need to go into that in this case.
20 MR. CHAREST: Well, I completely agree with you,
21 sir. I would just say that when I first saw the two A
22 and B documents about -- I call them Exhibit A and
23 Exhibit B sometimes in my brain -- but the first one
24 that talks about the 50-year periodicity, I thought that
25 was -- oh, my God, that's amazing, right? But the
3170
1 second one I think is actually more relevant, because it
2 stops and it looks at the meteorological steps and it
3 does an evaluation of is this type of storm likely to
4 happen over top of this very water shed? And over a
5 multipage analysis, it says yes.
6 Now, the result of that is in the Definite
7 Project Report they say, oh, we are going to use the
8 Hearne Storm to build the dam, but we're going to use
9 this other one -- this other one to set the takings
10 line. But when the Corps is making that decision, it's
11 with the knowledge that, you know, years ago, they've
12 already determined that the 1899 Hearne Storm is the
13 storm that is likely to happen. It's a big storm,
14 likely to happen within the area. So for me, again,
15 that's a -- that component of foreseeability is --
16 THE COURT: Let's talk a little bit about the
17 fact that the Corps, starting in about '70 or '72,
18 seemed very well aware of that possibility --
19 MR. CHAREST: Absolutely.
20 THE COURT: -- and they tried to address it
21 through a set of steps.
22 MR. CHAREST: Did you say you want me to try and
23 address it through a set of steps or the Corps did?
24 THE COURT: The Corps tried to address it through
25 a set of steps.
8 (Pages 3167 to 3170)
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1 MR. CHAREST: Oh, well, absolutely. So, like,
2 we've talked a lot -- this is the next question really
3 on my chart, so we're in sync here, but the other issue
4 that the Corps says is, oh, you only have to look at the
5 time of -- you only can look at the foreseeability at
6 the time of the construction. I don't think that's
7 right for a couple different reasons. I'm not sure
8 legally that's right anyway, but even factually, if you
9 are looking at the foreseeability, when the Corps took
10 actions, we have to remember the dams were built in
11 1945-ish, around there, and then they were modified over
12 time, and every one of those modifications is another
13 government action that imposes more and more threat on
14 the land.
15 So I think you're right to look at when they
16 decided to restrict the flow, when they imposed -- when
17 they installed the gates and when they raised the
18 embankments. In every one of those steps, the
19 foreseeability of this action should be re-evaluated.
20 Even if you only look at the time of the government
21 action, you have multiple facets of the government
22 action over time.
23 It wasn't like they built the dams and walked
24 away. They stayed over them over time and they operated
25 them consistently over time, so I think that
3172
1 foreseeability question, even if it needs to be tied to
2 a factual sort of event, that we still have the ability
3 to look over time.
4 THE COURT: Well, there's a question of
5 foreseeability in terms of the property owners
6 themselves. I think that's part of the Government's
7 point. If you buy a home on a property that you know is
8 susceptible to flooding, they're suggesting that
9 essentially eliminates government liability.
10 MR. CHAREST: That is definitely an argument
11 we've heard, but it's flawed for a bunch of different
12 reasons, both legally and factually.
13 Legally, there's no, like, assumption of the risk
14 concept in takings that I'm aware of, and I've learned
15 from the best, and so fundamentally this knowledge --
16 this notion of, like, oh, you came to the danger is
17 not -- is not one that the law recognizes as a defense
18 for the Government.
19 But even if you went past that and said, well,
20 what did they know? Does it affect the reasonable
21 investment-backed expectation? In this case --
22 THE COURT: Now, the reasonable investment-backed
23 expectations would not necessarily apply in this case
24 because it's a physical taking. What would apply is the
25 fact that you have to take a look at the character of
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1 the land at issue under Arkansas Game & Fish. It's a
2 little bit different.
3 MR. CHAREST: Yeah, and/or the expected use under
4 Ridge Line.
5 THE COURT: Right, exactly. They're the same.
6 MR. CHAREST: In my mind -- yeah, I agree. So we
7 spilled some ink talking about why reasonable
8 investment-backed expectation does not apply here under
9 Preseault and those types of authorities. I'm not going
10 to re-urge that here, the Court has seen the briefing,
11 but for me, again, as a fact lawyer, we've achieved all
12 of those -- we've ticked off all of those boxes, okay?
13 And so on that point, in terms of what the
14 Plaintiffs knew and expected and wanted to -- and wanted
15 to get from their land, I mean, one of the purposes --
16 well, just so the Court's aware, I'm going to kick over
17 to Ms. Wright and Mr. Easterby and Mr. Vujasinovic
18 the -- as apply to each Plaintiff's -- you know, just a
19 little vignette for each one, so I am not going to
20 get -- I am going to kind of stay at the top level for
21 the whole group.
22 But one of the points I wanted the Court to be
23 aware of or to recognize from the -- from the site visit
24 was not just visiting the homes themselves but driving
25 in and out of those neighborhoods, because I remember
3174
1 personally, when I drove in those neighborhoods and
2 drove around there, it was -- aside from the fact that
3 the place had been wrecked by the flood, it was just
4 like any other neighborhood.
5 You know, it's not like some backwater shanty or
6 a house that's on stilts on a beach in a place that
7 expects to be flooded. There is no way the people that
8 lived there -- you go around, you see the churches and
9 the schools and Starbucks and little shops and homes
10 everywhere in these gated communities, and there's no --
11 I defy anyone to say -- someone just drop in there and
12 say, yeah, this is a place that probably will flood;
13 this is a place I expect to flood.
14 If you -- you don't need to believe me to
15 recognize that. You know because of their actions.
16 When they buy a home, where they place their family,
17 their most valuable possessions, probably their biggest
18 investment in that area, it's not because they're
19 risk-takers. It's because they don't know about the
20 risk.
21 And so this notion of, oh, they knew about it,
22 first off, factually, the Government so failed to prove
23 that -- sorry, it was -- you know, leave aside the
24 expert getting kicked out, but I think the record was,
25 what, it was 160 people or something ever attended those
9 (Pages 3171 to 3174)
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3175
1 meetings when you're talking about 70 years of
2 effectively -- I won't say the word intentional, but
3 obfuscation about what the dams really do.
4 Every single Plaintiff testified under oath,
5 truthfully, uncontroverted, that they did not know about
6 that risk of being flooded by -- not street flooding
7 and, you know, maybe the bayou -- maybe the bayou
8 overtops --
9 THE COURT: Well, it was interesting, because it
10 appeared to the Court that the streets were actually
11 designed to carry stormwater.
12 MR. CHAREST: Another thing that I learned, yeah.
13 THE COURT: And I was fascinated by that, because
14 the homes themselves, by local ordinance or whatever it
15 is, had to be built higher than the street level.
16 MR. CHAREST: Exactly right. So, then -- and
17 then so the notion that you might have heard people talk
18 about, oh, you know, we know Houston's flood-prone or
19 there's this whole section in the brief about Houston's
20 flood-proneness, but the very point of that is when you
21 go to these neighborhoods and you see there's drainage
22 ditches and -- it's not a place that you would expect to
23 flood from a pool of water being imposed and impounded
24 onto your land, and that's -- it's a different type of
25 flooding that people might have been aware of generally
3176
1 about Houston's flood-prone.
2 And I think you're exactly right about the
3 streets. I didn't know that either, and once you
4 understand that the streets are part of the conveyance
5 system, it all kind of falls together.
6 But to loop back to the Court's first question
7 about the knowledge of the homeowners and the
8 foreseeability of a flood from there, the record is very
9 clear, as applied to these particular 13, there's no
10 knowledge about that, and the notion that there should
11 be some sort of objective standard of everybody knew,
12 you just need to drive through the neighborhood, as the
13 Court did, and see that that's not true.
14 And you can look at that by -- you can support
15 that by these Plaintiffs' very actions of buying a home
16 in that area, putting their families up and all of their
17 worldly belongings in a place that they now know -- did
18 not then know -- is subject to flooding. So it's -- I
19 understand their job is to try to find every defense.
20 That one I find the most troubling, to be frank.
21 Now, going back to the prior question from the
22 Court about the foreseeability from the Government's
23 perspective along the time --
24 Matt, can you show me opening slide number 9,
25 please.
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1 The Court will recall Plaintiffs' 46 established
2 what we call the modern takings line, and what
3 Dr. Bedient did was he plotted that modern takings line
4 in yellow on both of these images, which are PDX 6 and
5 PDX 7. So that line was established in the eighties --
6 1980, in fact -- by the Corps when it was evaluating
7 whether or not it could or should buy more property and
8 what to do about the risk of flooding that it was
9 imposing on this nongovernment-owned land.
10 And I pointed out -- first off, I think it's just
11 remarkable that the takings line would have prevented
12 the flooding from Harvey if it had been enacted. That's
13 just -- you can't not notice that.
14 But more importantly, from the question of
15 foreseeability, this is the Government using its own
16 math and science and its own details and data to
17 determine whether it should have set the taking line in
18 1980, meaning there's no question whatsoever that it's
19 foreseeable that the flooding would have occurred to
20 least to that yellow line, and every one of the test
21 property Plaintiffs and, in fact, the entire Harvey
22 flood pool is within that takings line, and that cannot
23 go without notice.
24 And then we have another one that I think is just
25 critical, Plaintiffs' 1597.
3178
1 Matthew, show me 31, please.
2 And this is, as the Court will recall, a
3 spreadsheet developed by the Corps talking about the
4 likelihood of storms occurring, and at the top one,
5 these are facts where they're informing the people, the
6 attendees at the meeting -- by the way, this is not a
7 public meeting. This is a meeting with other emergency
8 responders, not just regular citizens. "They are
9 capable of putting the development underwater. This
10 would require a major storm, but storms have occurred
11 near our area that would have caused flooding off
12 government-owned land in the Addicks and Barker
13 Reservoir."
14 Then go to 47, Matt, if you would. This is the
15 conclusion.
16 "They've never flooded off government-owned land,
17 but after seeing the potential for flooding from the two
18 storms presented" -- and that's Allison and Claudette,
19 the study they did -- "we know it can and probably will
20 happen at some point in time." That's 2009, all right?
21 So the reason the Corps wants you to focus on the
22 Corps' knowledge -- the reason the Government wants you
23 to focus on the Corps' knowledge back at the time the
24 dams were constructed is because it's a little harder to
25 just show absolutely they knew, because in 2009,
10 (Pages 3175 to 3178)
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3179 3181
1 absolutely they knew, but I think that the documents, 1 out of 13 of the test properties was due to the
2 the fact of construction using the Hearne Storm, and the 2 pool-induced flooding, the government-induced flooding.
3 recognition that the Hearne Storm could have happened 3 And under Sponenbarger, because the maximum level
4 over the watershed is enough, and I submit that it is 4 of flooding was induced by the Government, that is
5 enough. 5 enough for liability. And you don't have to believe me
6 And this to me, just to close out the 6 on Sponenbarger. The Government uses Sponenbarger in
7 foreseeability discussion, proves that the flooding is 7 the downstream case as an offensive weapon against the
8 not incidental or accidental. It was just a matter of 8 Downstream Plaintiffs saying, oh, look, they can't prove
9 time, and the Corps knew that from the beginning, that 9 that the maximum level was due to the Government and,
10 it -- from the beginning when it built, through the 10 therefore, they're out. The fact is both experts agree
11 middle when it modified, and at the time of Harvey, when 11 that the maximum level of flooding, which is the pool
12 it actually enacted its plan and followed it out, the 12 flood throughout the upstream area, was because of the
13 Corps intended to impose water upstream on private 13 government-induced pool flooding.
14 property because that's the design concept. 14 Now, check down from there. If we have to go
15 Can you play the video, please, which is 15 beyond and say eliminate all other causes, every other
16 Plaintiff's 2176, two excerpts. 16 cause, we can still do that. For 10 out of the 13 of
17 (Video played:) 17 the test properties, both experts, both sides agree that
18 "With that being said, this area is designed to 18 the only source of flooding was the pool, so that means
19 hold that water, if necessary. It's unfortunate for 19 only three are in dispute factually, and those three are
20 you-all, but that's how it's designed." 20 Burnham, Giron, and Micu.
21 "Did we know you would have five foot of water in 21 The Court will recall that Giron and Micu both
22 your home? We knew that if we got this event, there 22 live in the -- in Barker and on the south side of Barker
23 would be homes with water in them, yes." 23 on water courses that are fed by Buffalo Bayou. One is
24 (Video concluded.) 24 on Upper Buffalo Bayou and the other one is on -- excuse
25 MR. CHAREST: So that's the Government's 25 me --

3180 3182
1 spokesman, the Corps' spokesman saying we knew, because 1 THE COURT: Or that feed into Buffalo Bayou.
2 they did know. 2 MR. IRVINE: Willowford.
3 Unless the Court has any questions about 3 MR. CHAREST: Willowford, thank you.
4 foreseeability, I am going to turn to the but for 4 Well, the Buffalo Bayou comes in and splits
5 causation analysis. 5 between Upper Buffalo Bayou and the Willowford diversion
6 THE COURT: Yes. We ought to talk about riverine 6 channel, and they go into Barker, yes, sir.
7 flooding and the difference between Dr. Nairn and Dr. -- 7 THE COURT: Well, I was thinking about whatever
8 Bedient or Bedient. 8 it is, Langham Creek or whatever it is?
9 MR. CHAREST: Bedient, yes, sir. 9 MR. CHAREST: Langham Creek is on the top of
10 THE COURT: Bedient. I will get it right 10 Addicks --
11 eventually. 11 THE COURT: Right.
12 MR. CHAREST: Yes, I am happy to talk about that 12 MR. CHAREST: -- and what we're talking -- and
13 next. 13 Buffalo Bayou, the actual water course, is on the bottom
14 Causation, as the Court's aware, requires a but 14 of Barker.
15 for causation, meaning looking at the result with the 15 THE COURT: Okay.
16 government project and whether, without the government 16 MR. CHAREST: So we'll talk about those three in
17 project, the same or more flooding would happen. 17 some detail here for the Court.
18 As I said, I remember this distinctly when we 18 What Dr. Bedient did was he had looked at
19 talked about the opening, the Court, of course, expects 19 different types of flooding, evaluated the effect of
20 the Plaintiffs' expert to say all 13 test properties 20 those floodings on the 13 test properties and
21 flooded because of and only because of the government 21 throughout, and determined that those localized -- that
22 action. What was surprising to me when I saw the 22 those other two types of flooding did not cause flooding
23 report -- and I think surprising to the Court when you 23 at the test property locations.
24 heard it -- was that the Government's own witness 24 So for street flooding --
25 conceded that the maximum level of flooding across 13 25 Matt, can you show me Plaintiffs' 526, which is

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1 Dr. Bedient's report, at 48?
2 For the street flooding, the Court -- well, the
3 Court already noted that the streets are designed to
4 carry water, and really what it is is I think it's maybe
5 a five-year storm or a two-year storm goes down the
6 drains and up to a hundred-year storm is conveyed by the
7 streets, okay? And it's also not just a level. We have
8 to think about it in terms of what time interval are we
9 talking about. So it's a hundred-year storm on a
10 one-hour interval? Yeah, yes.
11 And so what Dr. Bedient did was he looked and saw
12 what -- we can look at the top one and see the color
13 code for 100-year is red, and we look at the bottom
14 chart and the one-hour interval, and none of the
15 reported rains within the area are above the 100-year
16 flood.
17 And so based on that, Dr. Bedient concluded that
18 there was no localized drainage, because the local
19 street conveyance that -- remember, Mr. Vogler was the
20 first one to talk about it, about flowing along the
21 streets? That conveyance was sufficiently robust to
22 deal with -- to deal with localized flooding like that,
23 to convey the water outward.
24 Now, Dr. Nairn, by contrast, didn't even look at
25 localized flooding. His model literally had no
3185
1 the place where it falls to somewhere else, all right?
2 And then the second type of flooding you'll think
3 about is the riverine flooding, where now it's, having
4 been conveyed to a main tributary, do those tributaries
5 come out of banks at all and impose flooding as that
6 swell of water goes down into what is the reservoir?
7 So that first lump you'll see on the hydrographs
8 is that localized and/or riverine flood, so water coming
9 down and building up on the ground and then being
10 conveyed out through the drainage systems.
11 And for the most -- I mean, for all of them --
12 well, I'll use the ones that are uncontested so it's
13 just easier. You can look at Dr. Nairn's model and the
14 first chart will come up, it will come up, and then you
15 will see a big spike like this (indicating), and the
16 question was, well, did the first one rise to the level
17 of first floor or not? That was the, you know, the 10
18 out of the 13 kind of thing we're talking about.
19 For 10 of the 13, even his model couldn't put
20 water inside the house, all right? And for only three
21 out of 13, his model put water inside of the house on
22 the first lump. Everyone had water and much more water
23 on the second hump, all right?
24 So I think there was one witness where that was
25 drawn out more -- I forget which one it was, frankly --

3184
1 drainings at all, and so the ability for the water to go
2 into subterranean drains and move away was ignored by
3 Dr. Nairn. And so what does that do? It has the effect
4 of, just in whatever amount, increasing the amount that
5 is held in those neighborhoods, and that's an important
6 consideration, because that's going to -- that theme
7 will come up again later.
8 THE COURT: Well, there was one property, just to
9 help clarify the testimony, where there was street
10 flooding, and then the flooding went down, and then the
11 pool flooding came and it went back up again. There was
12 about a 24-hour hiatus there.
13 MR. CHAREST: So I think that --
14 THE COURT: I don't know which property it was,
15 though. Do you recall?
16 MR. CHAREST: I think that probably was most of
17 the properties, frankly, sir, because what you had -- if
18 you look at the hydrographs for all of these places,
19 you'll see one lump and then a big lump, all right? And
20 that first lump is -- this is -- again, I keep thinking
21 about how much I've learned about rain, but when I first
22 started thinking about rain, I'd think about the rain
23 that falls on my head, on my rooftop, and lays in my
24 yard, okay? That is the type of rain that we're talking
25 about for localized flooding. Does it get conveyed from
3186
1 but talking to each one of them, and even in their
2 depositions, the fact is everyone would have seen water
3 come up, even up over the curb, but that's part of the
4 natural -- the designed plan for the water conveyance
5 through the streets, because remember, you don't own up
6 to the sidewalk, you own somewhere back, and that V -- I
7 don't have a graphic for it --
8 THE COURT: No, I understand.
9 MR. CHAREST: Yeah, you're with me. All right.
10 So Dr. Bedient, again, he confirmed that the
11 rainfall wasn't sufficient to over -- to put a
12 surcharged condition on the localized drainage, but he
13 did more. He went and did the -- he visually observed,
14 as the Court saw, the elevation difference between the
15 street and the home levels. He talked -- he had
16 eyewitness accounts. He reviewed -- he read the
17 deposition testimony of all the witnesses.
18 They talked about they didn't have water during
19 the rain period, but the water came when the rain
20 stopped, and that's really the overarching theme you'll
21 hear when you talk to these flood victims, is that it
22 rained really heavy and the water got high in the
23 streets, and then it went down a bit. And then we
24 thought we were in the clear, but then here it comes.
25 And that's the -- the "here it comes" is the pool

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3187 3189
1 backing up. So it's not rain that's falling on my head. 1 there's an embankment along the channel.
2 It's water that's being detained by the dam and being 2 MR. CHAREST: That's exactly right.
3 forced back up onto this private property, and that's 3 THE COURT: -- of Langham Creek. That's what the
4 when the sun is out and we're still getting flooded and 4 Court remembers.
5 everyone didn't understand why. And that's why. 5 MR. CHAREST: Well, the creek that's going past
6 Now, as to riverine flooding, give me -- 6 the airport is Bear Creek, but the -- but you're
7 Can you show me the Bedient -- the slides 4 and 7 right --
8 5? 8 THE COURT: Whatever it is.
9 We talked about how Dr. Bedient used the FEMA 9 MR. CHAREST: -- there was an embankment along
10 flood maps, which are the result of a U.S. Corps -- you 10 there --
11 know, a Corps of Engineers modeling on how and where you 11 THE COURT: Sorry. I apologize.
12 can extend -- you can measure flood levels. 12 MR. CHAREST: No, I just want to make sure that
13 And go to the next one, too, please. 13 we're all clear. I don't want to be called as being
14 Just so -- so what Dr. Bedient did was he had the 14 wrong.
15 flood profiles that are based on those maps, and he 15 But we know from visual observations and from the
16 picked a spot where there was a gauge, you know, the 16 testimony of Stacy Lesikar, who was there with her feet
17 hundred-year flood, the 500-year flood, and wherever the 17 on the ground and took videos, that during the peak
18 Harvey gauge was, and then interpolated it down to the 18 level of Bear Creek going past, you saw the water
19 location of the house and concluded that, as to every 19 rushing past, coming up and hitting that little berm,
20 one of the sources of riverine flooding, none of them 20 and not going over top, and then the testimony also was
21 affected the test properties, because all of the 21 that when the water did come, it came across the field
22 riverine flooding -- before the rivers were impacted by 22 from the south, right, because that was the water
23 the dams, by the pool backing up, none of the them were 23 advancing up over the pool.
24 high enough to reach the -- to reach the home 24 And so while Dr. Bedient's step-by-step approach
25 structures. And that's fundamentally what he did. 25 didn't really work for the airport because the airport

3188 3190
1 He did -- he used not the FEMA maps but the 1 was so large, we can -- he concluded, because of these
2 profile from Tax Day for the folks up at Langham, 2 other factors, that it did not flood from riverine
3 because that was a more recent -- a more recent set of 3 flooding.
4 data, and there had been some work done on the Langham 4 THE COURT: All right. Thank you for correcting
5 tributary that post-dated the FEMA maps, and so he 5 the Court.
6 conceded that was the better -- 6 MR. CHAREST: Yes, sir. Well, sorry to -- assist
7 THE COURT: The Court remembers that testimony 7 the Court. How is that?
8 especially with regard to the airport. Is that correct? 8 THE COURT: Correcting works.
9 MR. CHAREST: The airport was -- we spent some 9 MR. CHAREST: So going back to -- and so then the
10 time talking about the airport, because according -- 10 other way that Dr. Bedient confirmed that there was no
11 that's not what I was talking about. So to answer your 11 riverine flooding was he looked at the AECOM report.
12 question quickly, no. 12 Can you just show the cover of it, Matt, so
13 The discussion that we had about the airport was 13 we all recall?
14 his approach didn't quite fit the airport because what 14 The LOE, Exhibit Number 7, which we looked at
15 he does is he pegs the spot of the property, and then 15 specifically for Lakes on Eldridge but also the
16 because -- and he uses that to interpolate along the 16 tributaries in and around at Turkey Creek and Langham
17 way. 17 Creek, and confirmed that there was -- while there was
18 Go to the prior slide, Matt, if you would. 18 water in the streets, the streets worked as intended and
19 If I may, so you see he had the gauge, and you 19 conveyed the water away into the pool, and it wasn't
20 pick the number, and then you go down and interpolate 20 until the pool backed up and got to the -- got to the
21 down to where the location is. Are you with me? But 21 private property that Langham Creek and Turkey Creek and
22 the problem was the airport's location was so large that 22 the streets of Lakes on Eldridge were, in fact,
23 his methodology showed the house -- the slabs being 23 affected. And so that was another confirming source
24 below the water level there at -- 24 that Dr. Bedient used.
25 THE COURT: Well, it was, because there was -- 25 Now, by contrast, rather than using the existing

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1 Corps-developed maps and data and ground truth
2 observations and gauges that are run by the Government,
3 Dr. Nairn did the opposite. Dr. Nairn made a model and
4 used his model to run a hypothetical storm and measure
5 what that would look like, and it's important to start
6 from the beginning about what we're talking about with
7 these models.
8 The model is very precise insofar as it will give
9 you to the -- you know, the nth degree of decimal
10 points, but that doesn't mean it's accurate. Dr. Nairn
11 admitted during the voir dire portion of his testimony
12 that the average rate of error for the model was plus or
13 minus a foot, all right? On top of that, he said that
14 when he measured his errors, there were half a foot to
15 1 1/2 foot errors throughout the model; 40 observations
16 exceeded 1.1 feet; ten exceeded two to three feet
17 variation between his model and observed locations,
18 observed heights.
19 And that's just talking about how good a model
20 is, and models like this are not used -- wow, already --
21 models like this -- I mean, they can use them for
22 whatever they want to, but typically they're used for
23 theoretical, trying to learn, if we do this or that,
24 what will happen?
25 THE COURT: I was going to say, they're
3192
1 predictive in a sense.
2 MR. CHAREST: Correct, correct. They're not -- I
3 think it's a misapplication of the model -- we talked
4 about it at length within our team -- whether to model
5 or whether use actual observed date, and we determined
6 to use actual observed data.
7 The other issue that I think on a global level
8 that we have with Dr. Nairn's model is the key inputs,
9 and I will put it this way. It's our position that the
10 water model, the rainfall aspect of the model -- which,
11 remember, he had to go and change the source code of the
12 program to even allow it to use that type of water
13 input -- was overstated, meaning it cherry-picked --
14 rather than using gauges from within the Addicks and
15 Barker watershed from what is, the testimony was, the
16 best water moderating system in the world -- in the
17 country, he used pickle jars, right, but he also used
18 data from 30 miles away where the rain was much more
19 intense and then carried that rainfall into the data
20 that he used over the Addicks and Barker watershed.
21 So our view is that there was too much water too
22 soon under Dr. Nairn's model, and that bears out -- and
23 I will tell you why it bears out in a second, but the
24 other aspect -- so you have too much water coming in,
25 and then on the other side of it, where the private
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1 property hits government-owned lands, remember for his
2 no-project run, he filled in those channels, so
3 effectively walled off the ability of the water to get
4 out of the neighborhoods and into the property, into the
5 government-owned land.
6 And so when you put too much water in and don't
7 let it get out, the -- you don't have to be a
8 hydrologist to know you're going to have too much water
9 in the neighborhoods, and that's what happened, all
10 right? And even with that, you can only put water on
11 three people's houses anyway.
12 So I'll talk about Micu and Giron first because
13 they're both together. I keep doing the map from my
14 perspective, and I should do it from your perspective.
15 They're both together along the Upper Buffalo Bayou.
16 And so the first point there is Dr. Nairn's model
17 overstated the amount of water in Upper Buffalo Bayou by
18 three feet. Now, why is that important?
19 Again, we say he had too much water too early,
20 and remember, we went through and we went through every
21 one of the main tributaries coming into Buffalo Bayou.
22 You remember the exercise, I think, Your Honor. And
23 every time Dr. Nairn -- there was only one, by the way,
24 that matched, which was Mason Creek. The only other
25 inlet to -- the major inlet into Barker Reservoir is
3194
1 Upper Buffalo Bayou.
2 So he got one correct, and we know that Barker
3 Reservoir was overfilled at the time of the peak by a
4 foot and a half, which is a lot of water for that whole
5 entire reservoir. So if all the water coming in one
6 major tributary was correct and the other one is
7 overstated by three feet, that makes sense, because that
8 additional volume of water has to come in somewhere, and
9 there it is.
10 Dr. Nairn's response was multifaceted and quite
11 interesting. First, even though every other time there
12 was a conflict with a gauge in his model he said the
13 gauge was correct, for this one, he says, oh, my model's
14 correct and the gauge is wrong. Now, we all -- we
15 talked a long time about the size of the hole, the
16 bottom of the tube, and the bits of cork, and I think we
17 all had some fun with that testimony, but what I -- what
18 I realized after sort of the fog of the battle was over
19 was the Government had the person in charge of those
20 gauges on the stand and chose not to ask that person
21 anything about that particular gauge and instead left it
22 to Dr. Nairn to dream up an error that we don't think
23 actually existed, and certainly he doesn't have any
24 facts to support it, to say that the gauge was wrong and
25 he was right.
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3195
1 You know, and I just want to -- that, to me -- I
2 was like, oh, I really should have said that before, so
3 I'm saying it now. There's -- if they thought the gauge
4 was really wrong, they could have asked -- is it
5 Fitzgerald?
6 MR. IRVINE: East.
7 MR. CHAREST: East, Mr. East, about that, and
8 they did not, and I think that's really relevant.
9 And so you have this overstated amount of water
10 coming in, and what Dr. Bedient did was he noted the
11 difference between the gauge and the model level, and he
12 said, okay, well, then, to correct that, I just need to
13 drop it down by three feet to true the model to reality,
14 and if I do that same correction and you apply it to
15 both Micu and Giron, guess what? No flooding. So if
16 you take away that overstated three feet and follow the
17 contours down, you take away the impact downstream on
18 these folks.
19 And then the other thing we did was we said,
20 well, what really happened, right? We had the videos.
21 Can you show me Giron 32, please -- 3002, please?
22 Dr. Nairn's model said that the home had
23 structural flooding at noon, August 27th. This picture
24 was taken on -- in the morning of August 28th. There's
25 no flooding, right? And so the reality -- the facts
3197
1 locations, and only the Government-imposed water flooded
2 these properties, because that's what the facts show.
3 Now, the only other person that's out there is
4 Ms. Burnham. You will remember Ms. Burnham with the
5 home tours thing, which I had never heard of before, but
6 you will remember her. She's up by Langham Creek, and
7 the biggest concern we have -- well, there's two, but
8 this is really the effect of the second sort of "thumb
9 on the scale" point that I made earlier, where
10 Dr. Nairn's model was to block off the tributaries as
11 they come in, and you have Langham Creek coming in right
12 by Bear Creek, the neighborhood, and in Dr. Nairn's
13 model, there's effectively a wall right there, and that
14 has the effect of bouncing all the water back into
15 the -- pushing the water into the neighborhoods and, we
16 say, elevating the amount of riverine flooding in his
17 model that he then called "true riverine flooding."
18 Can you show, Matt, PDX 13 and 14 to explain what
19 I'm talking about here? So I'll try this again. Here
20 we are. No, there? There I am, the red dot.
21 If you look here along -- this is the hydro --
22 this is the topographic map -- thank you, you-all --
23 that shows the channels as they actually exist, and once
24 you understand how to read it, it's not that hard, but
25 the blue and the purple show a depth of 28 -- an

3196 3198
1 defy Dr. Nairn's model. 1 elevation of 28.5 meters, and the green, which is sort
2 And, again, can you show me Micu 59, the video, 2 of the fields, and unmodified, is in the vicinity of
3 please? 3 31 1/2. So you have a roughly nine meter, ten foot or
4 Before you play it, Dr. Nairn's model says Micu 4 so channel -- did I do that -- three meter, ten foot or
5 had water in her home in the evening of the 27th, August 5 so channel, that runs past Bear Creek right here, and
6 27th. This video was taken in the morning at 9:55, 6 that's Ms. Burnham's home right there by the star.
7 August 28th. 7 THE COURT: So Bear Creek is the one on the left,
8 (Video played; no dialogue.) 8 and Langham is the one on the right? Is that correct?
9 MR. CHAREST: The Court will recall that in order 9 MR. CHAREST: So it's -- no, not exactly.
10 to prove this video up, we had to bring in Ms. Micu's 10 Langham Creek and the Horsepen is right here. This is
11 son, Christian, and he testified under oath both that 11 the Horsepen-Langham convergence, and this is all
12 the video was valid but also that there had not been any 12 channelization in here. The neighborhood of Bear Creek
13 water in his home before that time. So we know from 13 is this area here, sir (indicating).
14 someone who was in the house, who took a video the next 14 THE COURT: I put them together in the trial.
15 morning, that there was not water, so we know that 15 I'm sorry about that. Obviously, I have to
16 Dr. Nairn's model is wrong. 16 differentiate.
17 And, of course, it's allowed to be wrong, because 17 MR. CHAREST: No worries.
18 it's already three feet too high. It's plus or minus a 18 So Bear Creek is a neighborhood and Langham Creek
19 foot, has other one-foot variations, and is a predictive 19 runs past it, all right? So what Dr. Nairn did in his
20 thing that's not intended to show to that level of 20 model -- do you see where it goes abruptly from blue to
21 accuracy what really happened. 21 green right here where the red dot is (indicating)?
22 But the facts are, as proven in the Court, that 22 That -- what he did was he allowed a ten or more foot
23 Micu and Giron did not flood at the time that Dr. Nairn 23 channel, many feet wide, to come and just hit a wall,
24 said they did, and the Court should conclude that there 24 and that -- sorry?
25 was no other source of flooding at all at these two 25 (Counsel conferring.)

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1 MR. CHAREST: Yeah, and that effectively pushed
2 the water that was coming in here through his model, it
3 had nowhere to go, and so it flows out in his model
4 north and south, south being important for Ms. Burnham,
5 because it --
6 THE COURT: Where is the Burnham property
7 relative to -- -
8 MR. CHAREST: That red dot that I'm trying to
9 circle here, right here. There (indicating), the red
10 dot.
11 THE COURT: The Court was concerned about that
12 because Ms. Burnham testified that her house flooded to
13 some extent, not nearly as much, as a result of the Tax
14 Day flood that occurred about a year earlier.
15 MR. CHAREST: Yes, sir. That's correct. Well,
16 the Tax Day -- the Court may recall the testimony, the
17 rain that happened on Tax Day -- again, we learned a lot
18 about rain -- was much more intense in terms of the
19 intensity of rain, the amount per hour, but also much
20 more localized. And so our understanding is that the
21 Tax Day flood was a combination of riverine and possibly
22 a little -- at least being affected by the pool coming
23 back. That's what the Corps documents indicated. But
24 it was not -- it was a much more localized issue that
25 happened in the Bear Creek area off Langham.
3200
1 But let's go to the next -- let me see where we
2 are here. Yeah, 608 at 136. Thank you. Just zoom in
3 to that -- perfect.
4 So the key point to take away here is the blue
5 line is Dr. Nairn's model with the regular -- with
6 Harvey as it was, channels in place, stand in place,
7 everything, and his own model, without affecting the
8 channels, shows that her home does not have structural
9 flooding, because the structure level is this green
10 line, and the blue line is Harvey. So it comes close
11 but does not get into their home under his own model
12 there.
13 Are you with me?
14 THE COURT: Yes.
15 MR. CHAREST: The purple line is what he says
16 happens when you take away the dam, but not just take
17 away the dam, but he also filled in those channels, and
18 the effect of that is to raise -- you see right here,
19 these two first peaks? -- to raise the first peak, which
20 should not be affected by anything, because that's
21 before the dam water hits it, and raises it to a level
22 that imposes structural flooding on Ms. Burnham.
23 And so when we asked him during the trial, well,
24 what if you just left the channels as they were? How
25 does your model work? Oh, I didn't report that
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1 upstream. Well, we know you didn't report that upstream
2 because of what it shows, and what it shows is on
3 Exhibit 3005, and this is the report in the downstream
4 case when he runs the same model but with the channels
5 in place as they actually are, not counterfactually,
6 but, in fact, as they are, and Ms. Burnham, no flooding
7 above level one.
8 What that means is, as we saw in the blue -- on
9 the blue line in the prior chart, that first bump in the
10 hydrograph, it gets close, but it does not flood her
11 structure, and, therefore, we're able to just
12 eliminate -- and what we should do -- eliminate riverine
13 flooding as a cause. And if that's not enough to
14 convince the Court, we also have the LOE report, which
15 is LOE 007, pages 23 and 24, which is a very detailed
16 study, and the conclusions -- you have the summary of
17 results, and the conclusions were that Langham Creek did
18 not overtop as a result of local overflow.
19 This is an independent set of engineers doing a
20 study for LOE, but because LOE is near Langham Creek, it
21 evaluated both of them, and it said it was only the
22 Harvey flood pool held back by the dams that caused
23 flooding and over -- and the eventual overtopping of
24 those banks, but not riverine overtopping but, rather,
25 the pool coming up and getting in. So if Dr. Nairn had
3202
1 not closed the channels, his model would not have put
2 water on Ms. Burnham.
3 And Dr. Bedient confirmed, using the same
4 methodology that he had from the beginning, that
5 Ms. Burnham's home would not flood, and the LOE report
6 also shows that she would not flood. I think the Court
7 should conclude that, in fact, there was no other source
8 of flooding other than water held back by the
9 Government's dams.
10 That is the discussion on but for unless the
11 Court has any more questions on that.
12 THE COURT: (Indicating no.)
13 MR. CHAREST: Thank you.
14 I'll turn then to severity, substantial invasion,
15 and that sort of thing, and, again, I'm going to try and
16 just take a very high-level view and then pitch it over.
17 I feel like I've gone a little longer than expected, but
18 here we are.
19 Under Ridge Line and also, as the Court pointed
20 out, there was an aspect of intentionality under
21 Arkansas Game & Fish, the next steps, I'm sorry, are
22 whether or not -- Ridge Line will say that if the
23 Government appropriated a benefit from its action or
24 preempted property owners' rights, then that will get to
25 a taking, so I want to focus on the "appropriate a
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1 benefit" aspect of that issue.
2 Over the lifetime of these dams, the Government
3 has used the availability of these private properties as
4 a -- call it a reserve tank of storage. Until Harvey,
5 arguably, it had never used that area before, certainly
6 not to the extent of Harvey, but that's -- if you
7 look -- if you do the math from the water impact tables,
8 that's 78, almost 7900 acres of property in Addicks and
9 almost 7000 -- over 7000 acres of property in Barker,
10 for roughly almost 15,000 acres of land that it had in
11 its -- in between the government-owned land and the
12 spillway design flood that it had on effective reserve
13 as part of the reservoir and never paid these owners a
14 penny, never compensated them for their availability.
15 Now, the question, can you bring a claim for the
16 availability? I'm not going to worry about that yet
17 because we have the actual event of Harvey, and in
18 Harvey, the Government used 7000 of those acres, private
19 property, 7000 acres, roughly half of what it had on
20 reserve, and it used those properties to store
21 stormwater for the benefit of avoiding damages
22 downstream. There is no clearer thing than that
23 happened.
24 The Government put water on 7000 acres it did not
25 own in order to prevent damage downstream, and it
3204
1 worked, which is the other part. That's the
2 "appropriate a benefit" aspect of it. The Government,
3 by its own records, saved nearly $7 billion of damages.
4 That's net, okay? That's -- consider the damage
5 upstream and the damage that happened in the -- along
6 the surcharged corridor, still $7 billion --
7 And, Matt, can you show me Exhibit 228, please,
8 at USAC8694, 95?
9 Nearly $7 billion of flood damages prevented as a
10 result in just Harvey alone, all right?
11 And then show me also, if you would, Plaintiffs'
12 168.
13 Remember the discussion about this? There's some
14 13,000 structures downstream, all those little green
15 dots, that did not flood because of the dams. There is
16 a very clear benefit that the Government received --
17 appropriated -- by its use of these upstream properties.
18 Now, turning to the character of the land, we
19 talked a little bit about the neighborhood -- unless the
20 Court has more questions about that? I'm sorry, you're
21 still looking. I'm sorry.
22 We talked about the neighborhood. This is,
23 again, where people build their -- you know, house their
24 families, build their lives, and you have the invasion,
25 a physical invasion of detained storm runoff water.
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1 It's a physical invasion. The pool -- the water was
2 pooled on their property for days, and it absolutely
3 deprived the people of their -- and the owners of their
4 customary use of the property and destroyed property in
5 addition.
6 It was a fundamental eviction, if you will, of
7 their property. And I want to point out, in terms of
8 duration, our view is it's not just the time that the
9 water was on the property, because many people, when
10 they -- most people, when they came back, could not move
11 back right into their property. They had to remediate.
12 They had to -- you know, the Court saw on her own
13 property where the strips of walls were still removed.
14 That was, when I first came down -- well,
15 actually, when I first came down to the area, there was
16 still just muck everywhere and just piles of trash, and
17 then you would just see more and more houses and a new
18 pile of trash because they just took out another
19 four-foot section of wall. House by house by house,
20 people rebuilding.
21 And until the house is back up into shape, we say
22 that's the amount of the -- that's the duration of the
23 taking, because the person should have a reasonable
24 amount of time to rebuild and repair the damage that was
25 done before they can be seen to have reclaimed the
3206
1 property from the taking.
2 And then, lastly, there's two more points I want
3 to make on severity. Number one, we had an expert on
4 severity, the Court will recall, or two, I guess, Randy
5 Bell and Matt Deal, who talked about the -- that because
6 of the fact of flooding -- leave aside the structural
7 damage and leave aside the personal property that was
8 lost, but because of the fact of flooding, these
9 homeowners will suffer a depreciation in value of their
10 homes, and the teaching shows that roughly it's 30
11 percent.
12 It was a preliminary study. He said it was not
13 exact, but the impact of 30 percent he concluded was
14 severe, and the reasons were -- and among those reasons
15 were because most people have even less than that in
16 terms of equity in their home, and to lose what is, in
17 effect, your biggest investment in your entire
18 portfolio, your biggest -- the biggest thing that you
19 own, the thing you're the proudest of, your home, to
20 lose the equity value of that cannot be anything other
21 than severe.
22 And interestingly -- and that applies to every
23 single property that flooded, whether they had water in
24 their home or not. So like specifically Ms. Popavicio,
25 I point out she's the only one of the 13 test properties
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1 that did not have structural flooding, but she
2 absolutely will feel the effect of this flood because of
3 the impact on her home property -- on her home value.
4 And I will point out that the Government had and
5 paid a lot of money for an expert to counter Dr. Bell
6 and Mr. Diehl. He sat in the courtroom the entire
7 trial, and then he went home. They didn't even bring
8 him up because it was so obvious that he could not rebut
9 what Mr. Bell and Mr. Diehl said.
10 And the last point on this notion of, like, the
11 overall impact, I don't know if the Court's aware, but
12 Texas recently passed a law, and it's effective I think
13 September 1, 2009, that now requires sellers to disclose
14 whether or not the property is in a pool of a Corps
15 reservoir.
16 And I'd ask the Court to take judicial notice,
17 but, Matt, put up the -- it's the -- the citation is SB
18 339 HB 3815, and it's the Texas Property Code, Section
19 5.008(b), "Seller's Disclosure Notice."
20 Page 5 shows -- go back to page 5, if you would,
21 Matt. I'm sorry.
22 Page 5 shows that the disclosure -- you need to
23 check now, are you in a reservoir -- and go down in 20
24 and 21 -- are you in or partly in a flood pool or in a
25 reservoir? These are required disclosures now when
3208
1 people are trying to sell this property, lines 20 and
2 21.
3 And then on page 6, the law defines a flood pool
4 as being an area adjacent to a reservoir that lies above
5 the normal maximum operating level of the reservoir that
6 is subject to controlled inundation under the management
7 of the United States Army Corps of Engineers.
8 And it designs a reservoir as a means of water
9 impoundment project operated by the United States Army
10 Corps of Engineers that is intended to retain water or
11 delay the runoff of water in a designated surface area
12 of land.
13 Now, this is a new law in Texas that I don't know
14 if the people that enacted it understand what it means
15 to the homeowners, but now every person that tries to
16 sell their home has to say, yes, I'm not -- even if I
17 didn't flood, I'm subject to flooding, and if they
18 don't, it's a failure of the disclosure that they can
19 get sued on later. And so imagine the effect on home
20 prices that this is going to have for everyone within
21 this reservoir.
22 Now, that's the -- I know "stigma" is a dirty
23 word, and I'm not saying it's a stigma, but this is a
24 market -- an effect that will have market effect on the
25 property value, absolutely, and this happened after
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1 Mr. Bell did his analysis. So I would suspect that 30
2 percent is probably a ceiling, not a floor now in terms
3 of the type of harm they can suffer.
4 Unless the Court has issues or questions about
5 what I have talked about, I would like to pitch it over
6 to Ms. Wright to talk about the individuals and their
7 case-specific criteria in terms of impact.
8 THE COURT: Thank you, Mr. Charest.
9 Ms. Wright?
10 MS. WRIGHT: Good morning, Your Honor. Lydia
11 Wright for the Plaintiffs.
12 THE COURT: Good morning.
13 MS. WRIGHT: Your Honor, the Plaintiffs have
14 satisfied their burden of proof under the Ridge Line
15 test, and we'll also go over the Arkansas Game & Fish
16 test.
17 First, there's no dispute that for 10 of the 13
18 test properties, the pool was the sole cause of
19 inundation, and there's no dispute that the pool was the
20 cause of maximum inundation for the Micu, Burnham, and
21 the Giron properties, and as Mr. Charest already
22 discussed, for those three properties, Dr. Bedient
23 demonstrated at trial at that, in fact, the pool was the
24 sole cause of inundation for those three.
25 There's also no dispute that each of the 13 test
3210
1 property Plaintiffs owned or, in the case of the
2 Hollands, leased their property, and the record is also
3 clear that each Plaintiff was deprived of the customary
4 use of their property during Harvey and that that
5 resulted because of the physical invasion of the
6 Government's stormwater behind the dams.
7 Kulwant Sidhu is a retired engineer living in San
8 Jose, California. In 2005, he bought 29 condominiums on
9 Aspenglen Drive as a retirement investment. He and his
10 wife planned to rely on the rental income for their
11 retirement, and that's what they did until Harvey.
12 Unit 603, which is a downstairs unit, was
13 inundated by about eight inches of floodwater, and that
14 lingered for about four days. As a result, the tenant
15 in unit 603 terminated her lease, she said, "based on
16 the uninhabitable condition of the property due to
17 floodwaters caused by the Addicks Reservoir." And,
18 indeed, the condo was uninhabitable.
19 Mr. Sidhu had to hire contractors to remove all
20 the Sheetrock, the insulation, the cabinets, the
21 flooring, the doors. He had to replace the appliances.
22 It took him a full year to renovate unit 603 so that he
23 could rent it again, and during that entire period, he
24 was deprived of the rental income from that property.
25 Elisio Soares and his wife, Anna, bought their
18 (Pages 3207 to 3210)
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3211
1 home on Indian Grove Lane in 2001. They chose to live
2 in the Cinco Ranch neighborhood because they wanted to
3 send their kids to the Katy School District, to the Katy
4 schools, which are among the best in the region. They
5 expected to pay off their home, and they wanted to
6 retire there.
7 Mr. Soares was in New York with his family when
8 Harvey hit, and they made it back to Katy on August
9 31st. When they did, the storm water was still so high
10 in their neighborhood that he had to buy a kayak to
11 access his property, and when he finally got there, he
12 testified that everything was soaked. The furniture was
13 soaked. The water smelled like sewage. Mold was
14 growing inside the Soares home because about eight
15 inches of storm water had been stagnant inside for days.
16 With the help of church volunteers, the Soares
17 family gutted their home down to the studs, but
18 everything that touched storm water had to be removed
19 and thrown out and replaced, and everything that was
20 contaminated by mold also had to be removed. That
21 included furniture, appliances, family mementoes.
22 The first floor of the Soares house was
23 completely uninhabitable for about five months, and
24 during that time, the entire family, four people, lived
25 upstairs, cooking on a camp stove and relying on
3213
1 the kitchen appliances, the furniture, family mementoes,
2 and the same is true for all of the Winds' neighborhood.
3 This is Sunbright Court, and you can see the piles of
4 debris that folks have put out on the curb.
5 It took two or three days for the storm water to
6 drain from inside the Winds' home, and it took 11 months
7 for the family to repair their home so that they could
8 move back in. And during those 11 months, they lived in
9 a small garage apartment all together. At trial,
10 Mr. Wind described the influenced and its aftermath as
11 "one of the most traumatic experiences of his life."
12 Scott Holland retired from the Fort Bend County
13 Police Force in 2009 after nearly 25 years of service.
14 He was injured in the line of duty and became disabled.
15 Mr. Holland and his wife lived on Wingleaf Drive since
16 2002. It was a rental, but the Hollands took a great
17 deal of pride in their property, and they spent a
18 significant amount of money renovating it and -- a
19 significant amount of time and money investing in their
20 property. They hoped to own it someday.
21 When Harvey hit, Mr. Holland was in the hospital
22 recovering from surgery to remove his kidney, and he was
23 recuperating at home on August 28th when his wife took
24 this photo from their front door.
25 (Photo displayed.)

3212 3214
1 takeout. It took nine months for the family to return 1 MS. WRIGHT: The Hollands were evacuated by
2 their house to its preflood condition. 2 paramedics later that same day, along with their four
3 At trial, Mr. Soares said, "I fear that this can 3 dogs. Two of those dogs later died.
4 happen any time again. We can lose everything again. 4 Mr. Holland had to lay down on the bottom of the
5 We can't go through this same ordeal again." 5 flood boat, the rescue boat, so that his sutures
6 Kurt and Jean Wind have lived on Sunbright Court 6 wouldn't rupture. The family was put on a Metro bus and
7 for about 30 years. Sunbright Court is a quiet 7 shuttled to five different shelters, but each was full.
8 cul-de-sac in a deed-restricted community, and that was 8 It took them well past midnight until they could find an
9 important to the Winds because their daughter is 9 open bed.
10 visually impaired. 10 Mr. Holland returned to his home by boat a few
11 The Winds evacuated on August 28th before storm 11 days later because he wanted to secure the firearms that
12 water inundated their home, and the streets were still 12 he had left over from his police days, and this is what
13 impassable when they returned on August 30th. Mr. Wind 13 he found:
14 and his son were able to reach their home first by 14 (Video played.)
15 walking through waist-deep storm water and then 15 "This is a few days, a few days after. It's gone
16 eventually catching a ride on a rescue boat, and this is 16 down some. It's -- now we got about ten inches of
17 what they saw. 17 water, so we went from about three feet to ten -- ten
18 (Photograph displayed.) 18 inches, but we don't have much left anymore. It's nice,
19 MS. WRIGHT: When they finally entered their 19 the TV floated back on the cushion. I tried to save
20 house, the storm water was still ankle-deep, and a surge 20 some stuff, but it doesn't seem like it's going -- it
21 protector was smoldering in Mr. Wind's study. The 21 went very well. Oh, well, nothing like being old and
22 floodwater had wicked up the walls and behind the 22 starting over."
23 cabinets. The furniture and the rugs on the first floor 23 (Video concluded.)
24 were ruined, and, like everybody else, everything had to 24 MS. WRIGHT: Mr. Holland testified that the storm
25 be gutted, removed, demolished, replaced. That included 25 water inside his home was thick. It stained his hands.

19 (Pages 3211 to 3214)

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1 The stench reminded him of his experience retrieving a
2 dead body from the water. Nothing on the first floor
3 was salvageable.
4 The Hollands never moved back home. They
5 couldn't afford to rebuild and they still can't afford
6 to replace most of the personal property that was lost.
7 Today they live in a 210-square-foot RV in Cleveland,
8 Texas. At trial, Mr. Holland said that the flood taught
9 him what it meant to lose everything.
10 The Lakes on Eldridge Community Association is a
11 homeowners association. It was formed to provide
12 amenities to the community, like volleyball courts,
13 swimming pools. It has a clubhouse with a workout room
14 and a lounge that's used by members for birthday parties
15 and wedding receptions.
16 Susan Strebel is the secretary of LOE's board.
17 She took this photo from her kayak. During Harvey, the
18 Government stored about six inches of storm water inside
19 the clubhouse, and as a result, all of the clubhouse
20 furniture had to be repaired or replaced.
21 In the caterer's kitchen, the upper cabinets were
22 salvageable, but everything else had to be demolished,
23 removed. The fitness equipment was a total loss. The
24 pool was totally submerged, and it took about eight
25 months to reopen after Harvey. Storm water covered the
3216
1 sand volleyball court and the tennis courts, and both
2 were damaged as a result.
3 The 749 homes in the LOE community were unable to
4 use the clubhouse complex for about eight months after
5 Harvey, and LOE is still dealing with the economic
6 losses that were caused by the physical invasion of the
7 Government's storm water during Harvey.
8 Energy companies were once a reliable source of
9 rental income for LOE, but after Harvey, several
10 companies have removed LOE from their preferred renter
11 list because they're concerned about the next flood.
12 Ms. Strebel testified that most people were
13 shocked to find out that the Government could store
14 floodwater on their properties, and in her words, "LOE
15 faces a serious problem because our property values are
16 forever lost because we're in a floodplain. Our peace
17 of mind is gone forever."
18 Catherine Popovici has lived on Parsons Green
19 Court since 2003. The Popovicis have five children, and
20 they, like many of the other test property Plaintiffs,
21 wanted to send their kids to the Katy Public Schools,
22 and, in fact, their kids could walk to their elementary
23 school from home.
24 The Popovicis stayed home during Harvey. They
25 weren't worried about flooding because, like many of the
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1 other test properties, their house had never flooded
2 before; their property had never flooded before. The
3 storm passed on August 27th, and Ms. Popovicci thought
4 that the worst was over, but she was wrong.
5 By about noon on the 29th of August, the
6 floodwater had risen over her curb. It had risen
7 actually up her lawn and was about two inches up her
8 slab. By 4:30 p.m. that same day, the storm water had
9 risen about 3 1/2 inches up her slab, and at this point
10 Ms. Popovicci started to worry that her home was going
11 to flood, so -- but she was confused about why the water
12 was rising because it wasn't raining.
13 So the family started rolling up their carpets
14 and moving their furniture. They made a makeshift
15 kitchen on the second floor and boiled water for
16 drinking. By 6:15, storm water was just a few inches
17 from entering the Popovici home, and the Popovici family
18 was lucky because this is as high as it got. The water
19 never entered their home, but they were not able to
20 leave their neighborhood, not even in their four-wheel
21 drive truck, until September 1st.
22 The physical invasion of the Popovici property
23 lasted for five days, and even though storm water never
24 entered her home, as Mr. Charest said, the Popovici
25 family, like everybody else, will have to disclose to
3218
1 future buyers that their property now has a history of
2 flooding, and as of September 1st, 2019, because of the
3 new Texas law, they will also have to disclose that
4 their property's located inside a reservoir. This
5 resulting diminution in property value is probably the
6 most severe impact that the Popovicis have faced.
7 Ms. Micu has owned her home on Canyon Park Drive
8 since 2012. Like many of the other Plaintiffs, she
9 wanted access to the Katy School District, and she
10 wanted to live in a deed-restricted community because it
11 was nice and safe for her to raise her kids.
12 The Government took this photograph of Ms. Micu's
13 house in 2003 or 2004 when they did a first-floor
14 elevation survey. As a result of that survey, the
15 Government knew that Ms. Micu's house was one of the
16 thousands that they would inundate with storm water.
17 The Government never told Ms. Micu that fact.
18 Ms. Micu and her younger children evacuated to
19 Dallas before Harvey hit, but her oldest son, Christian,
20 stayed home, and he took this photograph on August 28th
21 from their front door.
22 (Photograph displayed.)
23 MS. WRIGHT: He evacuated later that day by
24 walking through the streets of his neighborhood in
25 chest-deep water. Ms. Micu's husband, Oscar, returned
20 (Pages 3215 to 3218)
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3219 3221
1 to Canyon Park Drive -- returned to Canyon Park Drive on 1 water was in there for seven or eight days, and after
2 September 1st. As you can see, he couldn't -- he could 2 the floodwaters had receded, the character of that
3 only access the home by kayaking down the streets. 3 neighborhood had changed so much that she actually felt
4 Ms. Micu returned home on September 5th. She 4 like she was forced to leave. Her house got broken
5 described this photograph of her kitchen at trial. She 5 into. She described it as a "zombi apocalypse," as I
6 said: "That's the wall that we used to measure how tall 6 recall, at trial. And so she sold the house in January
7 our kids are. Those are the cabinets and the water 7 of 2018 for less than half what she paid for it three
8 line, and the floor is all covered in mud and dirt." 8 years prior.
9 Like everyone else, the Micu family had to remove 9 There's Ms. Burnham in her front yard, and it
10 everything that touched floodwater and everything that 10 kind of addresses the scope of severity to her home and
11 was contaminated by mold. They undertook extensive 11 to her personal property, and there's the interior.
12 efforts to remediate mold, including running 12 (Photograph displayed.)
13 dehumidifiers and fans for months on end. They also 13 MR. EASTERBY: Do you have any more questions on
14 pulled up all the floor tiles to clean underneath, but 14 Ms. Burnham, Your Honor?
15 Ms. Micu's home was inundated by two feet of storm water 15 THE COURT: No.
16 for about ten days, and the damage was severe. 16 MR. EASTERBY: Okay. Moving to Mr. Giron, he
17 The family was deprived of the customary use of 17 purchased this house back in 2005. He was living in
18 their home for about a year while they remediated all of 18 California. He could have chosen to live anywhere. He
19 the damage. They still own the property, but Ms. Micu 19 chose Katy specifically because the realtor told him, in
20 doesn't feel safe there anymore with young children. 20 30 years, they had had no flooding. He was concerned
21 Her son Christian lives there now. He keeps a kayak in 21 about Houston a bit because he thought it was a place
22 the house in anticipation of the next time the 22 that had hurricane bombs, so he wanted to be further
23 Government stores stormwater there. 23 west and a little bit further away from the threat of
24 Mr. Easterby will now discuss the next group of 24 those kinds of storms. So to that character issue,
25 Plaintiffs. 25 there had never been any flooding in the Cinco Ranch

3220 3222
1 MR. EASTERBY: Good morning, Your Honor. 1 area prior to Harvey. I think that was undisputed
2 THE COURT: Good morning. 2 testimony at trial.
3 MR. EASTERBY: Turning to Ms. Burnham, she 3 Again, he was one of the properties that the
4 purchased the house on Four Season Drive on December 4 Corps of Engineers had gone out in 2003 or 2004 and
5 31st, 2014, intending that it be her forever home. She 5 taken a first-floor elevation so they would know exactly
6 actually borrowed the money for the purchase from her 6 who would be flooded by their reservoir pools, and those
7 mother, and she specifically chose that location because 7 were put into evidence for Addicks and Barker and for
8 it was on a cul-de-sac. 8 Barker, Harris, and Fort Bend County.
9 She got about five feet of water during Harvey. 9 As Mr. Charest already addressed, the record
10 I know the Court had some questions about Tax Day 10 evidence reflects that there was no flooding in the
11 flooding. Her testimony was on that event she had about 11 Giron house on August 28th, 2017, and that, in fact, the
12 three feet of water that came in very rapidly and left 12 water did not even get to the threshold of his music
13 very rapidly. To that point, I think it is significant 13 room. That's that white door you see on the left there,
14 that the flows on Langham Creek during Tax Day were 14 that picture that's Giron 19, on the next day, August
15 substantially higher than they were during Harvey. 15 29th, 2017.
16 And I would direct the Court to Plaintiffs' 16 (Photograph displayed.)
17 Exhibit 138, which was the USGS characterization of 17 MR. EASTERBY: Again, he had catastrophic damage
18 stream flows during Harvey, which indicated that Langham 18 to the house, outside and in. All the hardwoods had to
19 Creek during Harvey was only 9000 cubic feet per second, 19 be ripped up. And most significantly, he was living in
20 which was equivalent to about a 20-year storm, and 20 a FEMA trailer from January of 2018 until shortly after
21 that's what Mr. East testified to. So for that reason, 21 trial, about June of 2019. As far as I know, that house
22 we believe Harvey was a much different storm than Tax 22 today still remains in that mucked-out condition that
23 Day with respect to the flooding of Ms. Burnham's 23 Your Honor saw during the site inspection. So for the
24 property. 24 Giron family, this continues.
25 The damage to her house was catastrophic. The 25 Moving ahead to the Stewart family, the Stewart

21 (Pages 3219 to 3222)

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1 family bought that property, oh, 34 years ago. The
2 purpose was the good schools, a good place to raise a
3 family. They're in the Bear Creek Village area behind
4 Barker.
5 And can you turn the sound up on this one, Matt?
6 This one I think is really significant, just
7 speaking to the notion that people had any knowledge or
8 awareness that they were in an area that was at risk to
9 project-induced flooding.
10 (Video played.)
11 "I never thought I'd be riding in the street on a
12 boat. This is just unbelievable."
13 (Video concluded.)
14 MR. EASTERBY: That was their evacuation on
15 August 29th.
16 We presented evidence at trial that there was no
17 water in the house prior to the evacuation. Thereafter,
18 they had to muck out to four feet and then do
19 substantial renovations, which exhausted their life
20 savings. In fact, they had to sell their lake house to
21 pay for the renovations that were completed about March
22 of 2018. So as most of the folks in this trial, the
23 period of displacement was about six months.
24 Let's see. And one of the things I thought was
25 significant at trial was when I asked Mr. Stewart what
3224
1 was taken from you and asked him if the damage was
2 permanent, he really reflected and addressed it to this
3 picture, where you see the house, the drywall, all the
4 personal property out on the front yard, because now
5 it's garbage. It's permanently destroyed.
6 Moving to the Turney family, that green house you
7 see in the background is the Turney house on Red Willow.
8 It is very close to government-owned land in the Addicks
9 Reservoir area. Interestingly, it's one of the houses
10 that's not on any FEMA flood insurance rate map flood
11 zone. It's not depicted in any flood zone at all.
12 But notwithstanding that, you see it got about
13 six feet of water during Harvey, and Turney had lived
14 there for many years prior to Harvey. His daughter-in-
15 law, Margie, had taken possession of the house in 2010.
16 You can see the high water mark, the mold. It was
17 totally destroyed inside and mucked out to eight feet.
18 And then we see his grandson, Jaden, assisting in
19 the work of repairing the damage from the project-
20 induced flooding.
21 And, lastly, speaking to the West Houston Airport
22 Corporation's terminal property, Woody Lesikar probably
23 has the most history in the Addicks Reservoir of any
24 witness at trial. He had been out there since the
25 sixties, and you might recall he had had some
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1 discussions with the Corps about extending the runway
2 into government-owned land. In those interactions,
3 there was never any discussion or disclosure about
4 project-induced flooding.
5 We, I think, proved at trial that the source of
6 the floodwaters was exclusively from the Addicks
7 Reservoir pool. We excluded Bear Creek because of Stacy
8 Lesikar's video she took on the banks of Bear Creek that
9 Your Honor may recall and Mr. Charest addressed. And as
10 you can see here, on August 30th, which was the max
11 depth of the pool, they had about eight inches of water
12 within the terminal building, and the entire airport
13 property was completely inundated, with the exception of
14 a little bit of the runway, in connection with the
15 project-induced flooding. So they were down for about
16 five days, although it took them over a year to get
17 their property fully restored.
18 If Your Honor has no questions, I will turn it
19 over to Mr. Vujasinovic for the Banker property.
20 THE COURT: Thank you. Thank you, Mr. Easterby.
21 MR. VUJASINOVIC: Good morning, Your Honor.
22 THE COURT: Good morning.
23 MR. VUJASINOVIC: Thank you.
24 I'll address Todd and Christina Banker. They
25 bought their home about ten years before Harvey. They
3226
1 lived in it as their primary residence for that entire
2 time with their daughter, who was eight years old at the
3 time of Harvey. It was a 3700-square-foot home in a
4 subdivision called Kelliwood. It's on the -- kind of
5 the southern part of Barker. It's a deed-restricted
6 community. They paid about $440,000 for it.
7 Although the Bankers were fairly young, their
8 intent was for this to be their retirement home. Katy,
9 the area where it's located, was growing, and they
10 expected some real appreciation with the property at the
11 time that they purchased it.
12 They did not have flood insurance. They had no
13 idea the home was subject to any kind of an inundation
14 or that it was located in an area of a government
15 reservoir. Mr. Banker testified they wouldn't have
16 purchased the home if they had known that.
17 Mr. Banker testified that on Monday, the 28th of
18 August, early in the morning, they evacuated their home
19 in a kayak. His wife had been watching Jeff Lindner,
20 the Harris County meteorologist on TV, talking about
21 what was going to happen. And so they got in a kayak
22 with their eight-year-old daughter at the time and their
23 dog, and they got out of the neighborhood.
24 They were allowed to go back into their
25 neighborhood about a week later, and Mr. Banker
22 (Pages 3223 to 3226)
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3227 3229
1 testified to Your Honor at trial that his entire home, 1 Mr. Charest?
2 the first floor was covered in what he called a muddy 2 MR. CHAREST: That's fine for the Plaintiffs,
3 sludge, it was filthy, and it smelled poorly. 3 sir. Thank you.
4 The water got up to a little over one foot in 4 THE COURT: Is that fine with you, Mr. Shapiro?
5 their home, which is undisputed, that all of that water 5 MR. SHAPIRO: Yes, Your Honor.
6 in this case at the Bankers' home was solely caused by 6 THE COURT: All right, thank you. We are in
7 the rising pool. They were out of their home, and 7 recess for, let's say, eight minutes.
8 initially they lived in a hotel for about a week, and 8 (Court in recess.)
9 then they had to move in with Mr. Banker's parents. 9 THE COURT: Please be seated. Welcome back.
10 They had to remove four-foot of drywall 10 Mr. Shapiro, you may proceed. Sorry for the
11 throughout their -- the first floor of their home, as 11 delay, but it seemed prudent to take a break.
12 you can see on Banker 24-C. Like so many flood victims, 12 MR. SHAPIRO: Thank you, Your Honor. May it
13 the bankers ended up with a huge pile of what used to be 13 please the Court.
14 their family belongings sitting out in their front yard, 14 The Court should reject Plaintiffs' claims for
15 waiting to be picked up by the trash trucks. 15 the reasons that we set forth in our post-trial brief,
16 They spent a lot of money and had extensive work 16 and given the length of the post-trial briefing, I want
17 done to be able to get their home to where it was 17 to focus my attention today on approximately four points
18 livable again, and so about seven months after Harvey is 18 which I think will respond to most, if not all, of the
19 when they were able to move back in and live in their 19 arguments that Mr. Charest made this morning.
20 home. 20 First of all, this was a one-time flood that
21 Finally, Mr. Banker was asked at trial, Your 21 occurred during a historically large storm and, as such,
22 Honor, about -- you know, as he sees it, what was taken 22 Plaintiffs' claims are properly characterized as tort
23 from him, and he said peace of mind, number one. Number 23 claims and should be rejected for a lack of
24 two, he said uncertainty of the future. And third is 24 jurisdiction.
25 this family was hardest hit because their daughter has 25 Second, I want to discuss why the trial evidence

3228 3230
1 special needs. She will never be able to care for 1 shows that the Police Power Doctrine applies here.
2 herself in her life. 2 Third, I want to spend a few minutes talking
3 And so Todd and Christina Banker had been saving 3 about the causation argument, that was an issue that
4 money to care for their daughter. They had saved up 4 came up with Mr. Charest, and particularly the issue of
5 enough for, like, 10 or 11 years of care for their 5 the upstream outgrants including the channels upstream.
6 daughter once they were gone, and that took them about 6 And then, finally, I want to emphasize a few
7 18 or 19 years to accumulate, and so that's a huge hit 7 points relevant to the multifactor test set forth in the
8 to their family, that they're not going to be able to 8 Arkansas Game & Fish Commission test.
9 take care of their daughter as they had planned to do. 9 First, the parties appear to agree that the
10 That's all I had on behalf of the Bankers, Your 10 distinction between a tort and a taking is the test set
11 Honor. If you have any questions, I'm happy to answer 11 forth in the Ridge Line case, and that requires
12 them. 12 Plaintiff to show, first, that the Government either
13 THE COURT: Thank you. No, that's fine. Thank 13 intended to invade a protected property interest or that
14 you, Mr. Vujasinovic. 14 the invasion was the direct, natural, or probable result
15 MR. VUJASINOVIC: Thank you. 15 of an authorized activity; and that, second, the
16 MR. CHAREST: With that, Your Honor, the 16 Government's activity was sufficiently substantial to
17 Plaintiffs are done with our closing argument unless the 17 justify a takings remedy.
18 Court has any questions. We rely on the briefing for 18 There was some discussion with Mr. Charest, based
19 the remainder of the points. 19 on the Court's question, as to whether Arkansas Game &
20 THE COURT: Thank you. 20 Fish posed an identical test. It's our view it is not
21 Mr. Shapiro, what the Court would suggest is we 21 identical. There may be some overlap. The same facts
22 take a seven- or eight-minute break, and then we 22 may influence both of the tests, but I'll try to point
23 reconvene for about an hour, and then we might have to 23 that out when I get to the Arkansas Game & Fish merits
24 take a break for a delayed luncheon before we begin 24 test, that we think it's a different analysis.
25 again. 25 But in regard to the Ridge Line test, first,

23 (Pages 3227 to 3230)

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1 throughout their reply and then again this morning with
2 Mr. Charest --
3 THE COURT: Let's talk about that for just a
4 minute, because the Court really doesn't see any
5 difference.
6 MR. SHAPIRO: Yes, Your Honor.
7 THE COURT: Do you see a difference?
8 MR. SHAPIRO: Yes, Your Honor. So the Ridge Line
9 test, according to the Federal Circuit, set forth a
10 two-part test, the foreseeability and the substantiality,
11 and as we read that case, it is designed to distinguish
12 between what could be characterized as a Fifth Amendment
13 taking versus what should be brought as a tort under the
14 Federal Tort Claim Act.
15 The Arkansas Game & Fish Commission test sets
16 forth a merits-based, multifactor test, which set forth
17 a variety of other factors, including reasonable
18 investment-backed expectations, that should be assessed
19 in a temporary flooding situation like existed in
20 Arkansas Game & Fish and that Plaintiffs argue exists
21 here.
22 So it -- one is a -- the Ridge Line test is
23 distinguishing between torts and takings, and Arkansas
24 Game & Fish, if you get past the Ridge Line test and the
25 Court characterizes this claim as a taking, it could be
3232
1 viewed as and analyzed as a taking rather than a tort,
2 and then we believe that the Court would need to assess
3 the merits of that claim under Arkansas Game & Fish.
4 THE COURT: Well, the Court views Arkansas Game &
5 Fish as essentially an elaboration of Ridge Line,
6 because the tort/taking distinction was at issue in
7 Arkansas Game & Fish as well, just as in Ridge Line.
8 MR. SHAPIRO: We see it as a different analysis
9 entirely, Your Honor. What Arkansas Game & Fish is
10 talking about is a merits-based analysis based on the
11 character of Plaintiffs' property, the reasonable
12 investment-backed expectations at the time of
13 Plaintiffs' purchase, a variety of different factors
14 that are outlined in that case. That need only be
15 analyzed if the Court concludes that, under Ridge Line,
16 this case could be brought as a Fifth Amendment taking.
17 So I certainly agree with the Court that some of
18 the same facts would inform the two tests, but in our
19 view, they are separate. And if -- again, if the Court
20 concludes this could be analyzed as a Fifth Amendment
21 taking, it would still need to go through the Arkansas
22 Game & Fish test.
23 THE COURT: Well, that's true, but we're dealing
24 with a liability set of contentions respecting 13 test
25 properties, bellwethers, if you will, and so we're
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1 dealing with a merits situation as well as jurisdiction.
2 MR. SHAPIRO: Yes, Your Honor.
3 THE COURT: Okay.
4 MR. SHAPIRO: Our point, though, is that the
5 Plaintiffs' claim fails under both of those tests. So
6 because Plaintiffs' claims fail under Ridge Line, the
7 Court need not go any farther. The Court should reject
8 Plaintiffs' claims because they failed to meet the
9 standard set forth in Ridge Line. Only if the Court
10 were to conclude differently, that they have satisfied
11 the elements in Ridge Line, need it analyze the
12 merits-based analysis under Arkansas Game & Fish.
13 THE COURT: Well, the Court modestly disagrees
14 with you, because the Supreme Court had the torts/
15 takings distinction, which is jurisdictional, before it
16 as well as the merits in Arkansas Game & Fish, but I
17 think it's immaterial insofar as the tests, as you point
18 out, overlap, if not -- if are not completely congruent.
19 MR. SHAPIRO: Well, we certainly do agree -- we
20 don't agree that they are congruent. We do agree
21 that --
22 THE COURT: Well, they aren't congruent, but --
23 MR. SHAPIRO: -- some of the facts could
24 certainly inform both of the analyses.
25 THE COURT: Yes.
3234
1 MR. SHAPIRO: But stepping back to the Ridge
2 Line, which we see as a preliminary analysis,
3 Plaintiffs, as they did this morning and in their reply
4 brief, make a pitch that the Corps intended to place
5 floodwater on the upstream properties, but that is
6 incorrect and not supported by the trial evidence.
7 We certainly agree that the documents -- and
8 Mr. Thomas at trial testified -- that the project exists
9 to provide some flood protection to the downstream
10 areas, and the Corps operates the project with the
11 intent of protecting those downstream properties, but
12 that does not mean that the Corps intends to flood
13 upstream properties, and despite Mr. Charest's attempts
14 at trial to get Mr. Thomas to say that, Mr. Thomas I
15 think did his best to answer honestly that the Corps
16 does not have that intent. There's no intent there, and
17 Plaintiffs' arguments to the contrary are not evidence.
18 These reservoirs, as the Court is aware, are
19 normally dry, but when they are in operation, the flood
20 pools stay below the government-owned land during normal
21 operations, and for more than 70 years after construction,
22 the flood pools never impacted the upstream properties.
23 So I think despite using the word repeatedly -- the word
24 "intent" repeatedly in their briefing, what Plaintiffs
25 appear to really be saying is that the Corps knew that
24 (Pages 3231 to 3234)
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Upstream Addicks and Barker (Texas) Flood-Control Reservoirs
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1 upstream property was a remote possibility and that, in
2 their view, that is sufficient to show actual intent.
3 That is incorrect.
4 Knowing something might physically occur during a
5 massive storm does not show that that result is
6 intended, and I think that's consistent with the
7 discussion that Mr. Thomas gave when he was pressed on
8 this question by Plaintiffs' counsel on cross.
9 Plaintiffs also fail to prove foreseeability.
10 When the Corps planned and built the reservoirs in the
11 1940s, at that time, the 1935 storm was the largest
12 storm to hit these watersheds during the period of
13 record, and that's set forth in Joint Exhibit 5, the
14 1940 Definite Report.
15 The Court understood and believed that the 1935
16 storm was the worst storm that was reasonably
17 characteristic of these basins. That is transcript at
18 page 97, the testimony of Mr. Thomas. So given that
19 understanding, the Corps bought more than enough land
20 upstream of the reservoirs to accommodate the flood pool
21 that would be created by that 1935 storm, and that made
22 good sense, because at that time the upstream properties
23 were undeveloped and the Corps anticipated that a storm
24 of the size of the 1935 storm was likely to occur
25 several times during the life of the project.
3236
1 The Corps foresaw at that time that it owned
2 enough property upstream to accommodate the flood pool
3 expected during the worst storm it believed was
4 reasonably characteristic of the basin, plus an
5 additional three feet as a buffer, and the Court will
6 recall that that was the testimony that the Corps, at
7 that -- in the 1940s, bought more than enough land to
8 accommodate that 1935 storm, then considered the worst
9 storm reasonably characteristic of the basin.
10 And that situation did not change for decades, so
11 in the 1955 Reservoir Regulation Manual, for example --
12 that's DX 25 -- that document shows that the
13 government-owned land boundary was bigger than the
14 standard project flood boundary. What that means is the
15 Government owned more land than the flood pool expected
16 during the worst storm believed reasonably
17 characteristic of the basin.
18 Mr. Charest, during his comments this morning,
19 tried to focus on the addition of the gates at the
20 conduits in the 1960s, and that certainly happened, but
21 even after those gates were added, it remained the case
22 that the Corps still owned more land upstream of the
23 reservoirs, enough -- more than enough land upstream of
24 the reservoirs to accommodate the flood pool expected
25 during the worst storm considered reasonably
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1 characteristic of the basin. That is JX 16, where it
2 shows that the government-owned land exceeded the size
3 of the standard project flood.
4 So, yes, the Corps knew that the 1899 Hearne
5 Storm had occurred in a different watershed, set 90
6 miles away as the Court noted, and it believed that was
7 the worst storm that could physically occur. It made
8 the prudent decision back in the 1940s to build the dam
9 large enough so that it would not fail during that
10 storm; that is, it treated that 1899 Hearne Storm as the
11 design storm, which later the terminology became the
12 spillway design storm.
13 But the Corps understood that to be a rare event
14 in these watersheds, and so in an 18 -- excuse me, a
15 1989 memorandum, which was admitted into evidence as
16 PX 2284, just as an example, the Corps estimated the
17 return frequency of the spillway design flood to be a
18 1000 to a 1500-year flood event. And, of course,
19 Hurricane Harvey also was a historically large storm for
20 this region and for the United States as a whole.
21 We presented at trial the only trial evidence
22 about the size and the rarity of Hurricane Harvey. So
23 Mr. Kappel testified that Hurricane Harvey, when it
24 struck the area in 2017, had an average annual
25 exceedance probability of a 775-year storm and an
3238
1 850-year storm in the two watersheds.
2 And then Mr. Lindner with Harris County Flood
3 Control District testified that Harris County was a
4 record-setting rainfall event and that the evidence was
5 that Harris County had estimated Hurricane Harvey to be
6 a 5000-year event in Harris County. That's Defendant's
7 Exhibit 737.
8 Plaintiffs did not offer any contrary evidence at
9 trial, and, in fact, Dr. Bedient, who was Plaintiffs'
10 expert witness on this issue, testified that the Corps
11 "would be hard-pressed to have foreseen a storm like
12 Hurricane Harvey would hit the Addicks and Barker
13 watersheds back in the 1940s." That's page 2029 of the
14 transcript.
15 And if we look back at his expert report -- and
16 if we can maybe pull that up, that's PX 526. And this
17 is, I think, PDF page 40, Figure 9.
18 Plaintiffs' own expert report includes a graphic
19 showing that Hurricane Harvey was a greater than
20 1000-year storm in the region. Dr. Bedient testified at
21 trial that back in the 1940s -- and I think the Court
22 alluded to this with some questioning with Mr. Charest
23 this morning -- back in the 1940s, storms in the upper
24 watersheds were smaller as compared to the storms that
25 have impacted the area in more recent years, and he
25 (Pages 3235 to 3238)
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1 testified that the Corps did not expect the weather to
2 change. That's the trial evidence, and the parties
3 agreed with that trial evidence. So a storm like
4 Hurricane Harvey was physically possible but incredibly
5 remote.
6 Despite this, in Plaintiffs' reply brief and in
7 Mr. Charest's closing this morning Plaintiffs now appear
8 to be taking the position that, well, maybe Hurricane
9 Harvey was neither rare nor unexpected, but the trial
10 record does not support that assertion. We saw this
11 morning and we saw in Plaintiffs' most recent filing
12 that they spend a fair amount of time talking about
13 these two new documents that they've included in their
14 motion to re-open the record, and they -- they treat
15 those documents as sort of a smoking gun, that, oh,
16 well, the Corps thought that the 1899 storm -- Hearne
17 Storm was a 50-year storm.
18 We filed an opposition to Plaintiffs' motion, and
19 I want to just briefly address the substance of that, if
20 I could, Your Honor. Plaintiffs -- those two documents
21 do not address the Addicks and Barker Dams and
22 reservoirs. They instead address a different flood
23 control proposal called the Triple Corridor Plan. That
24 plan -- it's not an early name for the Buffalo Bayou
25 Tributaries Project or the Addicks and Barker
3240
1 Reservoirs. It was a different plan that Congress did
2 not authorize and the Corps did not construct.
3 It involved a different proposed method for
4 draining the floodwaters compared to the project that
5 was actually designed and constructed, and it appeared
6 to be made up of ten different storage areas and then
7 some cross-country drainage channels rather than the two
8 reservoirs that were actually built. The documents that
9 Plaintiffs are seeking to re-open the record to admit
10 are preliminary in nature, and they appear to be part of
11 an iterative review and analysis process. Both of the
12 documents involve some analyses were generated at the
13 district level for submission for higher level reviewers
14 and decision-makers.
15 Plaintiffs submit, though, that the documents
16 show definitively that these -- that the Corps thought
17 that the Hearne Storm was a one-in-50-year storm back in
18 the forties, but that's incorrect. The actual planning
19 documents for the project, JX 7, show that the Corps
20 thought the 1899 Hearne Storm, they treated it as the
21 design storm and said that it produced "the greatest
22 depth of rainfall over a large area of record in the
23 United States," and that it could happen in these
24 watersheds but was not likely to happen.
25 The reference to 50 years in the new documents
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1 likely relates to the planning horizon for the proposed
2 project, the Triple Corridor Plan, not an effort to
3 actually estimate an annual exceedance probability for
4 the 1899 Hearne Storm, and we discussed this in our
5 opposition, including Mr. Thomas' declaration, which
6 we've submitted in the -- in case the Corps admits --
7 the Court admits those documents.
8 As Mr. Thomas explains, the industry standard at
9 the time these documents were written was to design
10 projects with a 50-year planning horizon. So that
11 50-year reference in the historic documents likely
12 refers to the 50-year planning horizon, not an attempt
13 to actually calculate a recurrence interval.
14 And as we show in the 18 -- excuse me, the 1989
15 memorandum, PX 2284, that was actually admitted at
16 trial, the Corps in 1989 stated that the spillway design
17 flood was a 1000- to a 1500-year event.
18 The idea that the Corps thought back in the 1940s
19 that the 1899 Hearne Storm was a one-in-50-year storm
20 just doesn't make any sense and conflicts with the trial
21 evidence from Dr. Bedient that the Hurricane Harvey,
22 which Plaintiffs say is equivalent to the 1899 Hearne
23 Storm, Dr. Bedient testified that the Corps would have
24 been hard-pressed to predict Hurricane Harvey. And as
25 we showed a minute ago, his expert -- own expert report
3242
1 shows that Hurricane Harvey was over a 1000-year event
2 in areas near the water -- areas near the reservoirs.
3 Harris County thought this was a 5000-year storm.
4 Mr. Kappel thought this was an 850-year storm.
5 Mr. Thomas testifies in his declaration that the Hearne
6 Storm was between a one-in-500 to a one in-a-thousand-
7 year storm back in the 1940s. The idea that this
8 somehow is a smoking gun and shows that Hurricane Harvey
9 was a one-in-50-year storm just doesn't make sense and
10 conflicts with all of the trial data on this point.
11 To return back to the foreseeability question,
12 foreseeability has to have some meaning. Simply knowing
13 that a particular result is a remote, possible result
14 does not necessarily mean it was the direct, natural, or
15 probable result, and I think the Moden case from the
16 Federal Circuit makes that point. There's a difference
17 between causation and foreseeability, and as the Court
18 noted, an idea that something is conceptually possible
19 doesn't necessarily mean that it is foreseeable. The
20 relevant probabilities associated with Hurricane Harvey
21 are so incredibly remote that foreseeability has not
22 been shown.
23 In response to the arguments that I've just made
24 and the arguments that are set forth in our post-trial
25 brief, Plaintiffs make a couple of points. One is they
26 (Pages 3239 to 3242)
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1 make an argument that, well, maybe foreseeability should
2 not be tied to the 1940s, that maybe it should be
3 measured at various times. A couple of responses to
4 that.
5 First, that position is really inconsistent with
6 the complaint that the Plaintiffs have filed here. If
7 you look back at the complaint, what Plaintiffs are
8 really complaining about here includes the construction
9 of the project, obviously the major federal action that
10 brings us here today. So Plaintiffs have pled their
11 claim based in part on the construction and the
12 operation of the project.
13 THE COURT: Let's address the fact that the
14 project, as designed in the final design, was not
15 actually built. There are a couple of elements that
16 were deleted or elided.
17 MR. SHAPIRO: Yes, that is correct. That, in our
18 view, does not change the foreseeability question, Your
19 Honor. There were certain elements as the Court noted,
20 for example, the upstream levee that was not
21 constructed. The Corps -- as the Corps -- as the Court
22 understands, the Corps bought additional land to try to
23 accommodate that, and after they completed the
24 construction that was limited, after they completed that
25 construction, the Corps still thought that they owned
3244
1 enough land upstream of the reservoirs to accommodate
2 the worst storm considered reasonably characteristic of
3 the basin.
4 That was true in the 1940 Definite Report. That
5 was true in 1955 in the Reservoir Regulation Manual.
6 And, critically, it was also true in the 1962 Reservoir
7 Regulation Manual, after the Corps had already
8 constructed gates on all of the conduits. Still, even
9 after that, the Corps understood, it foresaw that it
10 owned enough land upstream of the reservoirs to
11 accommodate the largest pool that was reasonably
12 expected -- reasonably characteristic of the basin.
13 That's what the standard project flood is, and if you
14 look back at those, we include those graphics in our
15 post-trial brief. The Corps understood that its
16 government-owned land exceeded the standard project
17 flood at each of those instances.
18 One other point and then I'll move on.
19 Mr. Charest here this morning kept talking about, in his
20 closing, focusing on the design of the project and the
21 construction of the project. He used the phrase "from
22 the day-one inception, the Corps should have foreseen
23 this." We disagree with that, but I think what that
24 sort of underscores is that Plaintiffs remain focused on
25 the construction of the project, the important
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1 government action for purposes of this case. That's
2 when foreseeability should be analyzed in our view.
3 So what changed? Why -- why -- when did this
4 change? And this came up I think in a roundabout way
5 with some questioning -- some answers from Mr. Charest.
6 Until 1977 or so, the Corps thought that it owned enough
7 property upstream of the reservoirs to accommodate the
8 pool that would be created by the worst storm reasonably
9 characteristic of the basin. So what changed in the
10 seventies?
11 It was not some new construction effort. It was
12 not some physical addition to the project. Mr. Charest,
13 sort of in a few of his closing remarks, tried to throw
14 in the gates being added and maybe the main embankments
15 being added. That's a red herring. That had nothing to
16 do with what changed in the 1970s.
17 What changed in the 1970s was instead a better
18 understanding of engineering principles and
19 meteorological science. That's in the 1977 hydrology
20 report, and it's after the publication of the 1977
21 hydrology report that for the first time the Corps
22 understands that the government-owned land is -- will no
23 longer accommodate the standard project flood, the flood
24 that's expected during the worst storm reasonably
25 characteristic of the basin. It's after the improved
3246
1 science. It's after the improved understanding of
2 meteorological principles. It's not after some physical
3 change to the project like the raising of the
4 embankments, which came in the 1980s.
5 Another point about the timing of when
6 foreseeability should be measured. You know, adoption
7 of Plaintiffs' position -- I think this became clear
8 from Mr. Charest's comments today -- but adoption of
9 Plaintiffs' position that, well, maybe foreseeability
10 should be measured at sort of a -- I don't know, a
11 decades-long period rather than when the primary
12 government action took place would really turn the
13 relevant government action into an inaction.
14 So throughout their reply and in Mr. Charest's
15 comments this morning, Plaintiffs complain that the
16 Corps knew that upstream flooding was physically
17 possible, it considered purchasing additional land
18 upstream, and the survey came up this morning, it
19 surveyed the upstream properties in the 2000s, and it
20 decided not to act. But the Federal Circuit's decision
21 in St. Bernard Parish and other cases make clear that
22 inaction cannot support a takings claim.
23 So one result of Plaintiffs' argument about
24 foreseeability is that the Court is all of a sudden
25 being asked to focus on inaction rather than action, and
27 (Pages 3243 to 3246)
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3247
1 here the relevant action dates back to the 1940s.
2 THE COURT: St. Bernard Parish, though, actually
3 talks about government actions having pluses and
4 minuses, doesn't it?
5 MR. SHAPIRO: It does. It does talk about that.
6 I think that issue has come up in the trial court's
7 decision of -- in Ideker as well.
8 THE COURT: Yes, exactly.
9 MR. SHAPIRO: But that's not --
10 THE COURT: In this particular case, things were
11 not static with the final design in 1940. Things
12 happened. Parts were not built. Certainly the United
13 States was at war in World War II, and there undoubtedly
14 were good reasons for it. Nobody questions that, but
15 there were a set of changes that occurred since then.
16 MR. SHAPIRO: Right. So at what point, then --
17 so I understand the Court's question, and I -- but at
18 what point, then, and why does it become apparent to the
19 Court -- to the Corps, the Army Corps of Engineers, that
20 it does not own enough land to accommodate the most --
21 the worst storm considered reasonably characteristic in
22 the basin? It's not -- it's not because the Corps
23 didn't build the entire thing.
24 THE COURT: "Reasonably characteristic" is, in
25 your argument, a term of art.
3249
1 THE COURT: -- considerations.
2 MR. SHAPIRO: That's what happened in 1977, that
3 the Corps publishes the 1977 hydrology report, which
4 demonstrates now the government-owned land is not
5 capable of holding the entire standard project flood,
6 not because the Corps didn't build the entire project,
7 not because the Corps added gates to the conduits, but
8 because there was a better understanding of meteorology,
9 there was a better understanding of engineering, and
10 that testimony is clear from Mr. Thomas at trial.
11 The next argument that is made in Plaintiffs'
12 reply brief and came up with Mr. Charest in response to
13 a couple of questions is their argument that what we're
14 arguing here is somehow contradictory, that on the one
15 hand we're arguing, well, the Hurricane Harvey was not
16 foreseeable, yet we are also arguing in a different
17 context that Plaintiffs knew or should have known of the
18 possibility of flooding on their property. And
19 Plaintiffs -- I think Mr. Charest said this today or at
20 least suggested it, that those both can't be right, that
21 that must be contradictory, but there is no
22 contradiction, because Hurricane Harvey truly was
23 unprecedented, the trial is evidence is clear --
24 THE COURT: Well, it wasn't a sense of the Hearne
25 Storm. It was about the same, as a matter of fact, just

3248 3250
1 MR. SHAPIRO: It is, Your Honor, and it's 1 in a different location.
2 discussed by several of the witnesses at trial and some 2 MR. SHAPIRO: In a different location. It --
3 of the documents as well, about what a standard project 3 that's certainly correct, Your Honor. It certainly was
4 flood is. 4 in a different location. The Hearne Storm had occurred
5 THE COURT: Right. 5 90 miles away in a different -- a different watershed.
6 MR. SHAPIRO: So it's not -- it doesn't -- that 6 THE COURT: Right.
7 change does not occur because the Corps only had funding 7 MR. SHAPIRO: Yes. But it was unprecedented in
8 due to the war to build part of the project. And how do 8 the sense that a storm of that magnitude had never hit
9 I know that? Because you look at the 1955 Reservoir 9 the United States before. That was the largest storm to
10 Regulation Manual where it actually considers this 10 hit the United States. That's the trial evidence. It
11 question. What is the government-owned land boundary 11 was, according to Harris County, a 5000-year storm.
12 and what is the standard project flood? And the 12 THE COURT: Well, whether it's 885 years or 775
13 government-owned land boundary is big enough to 13 years or 8000, it still had occurred in the Gulf. Well,
14 accommodate the standard project flood. 14 anyway, we'll pass over that.
15 THE COURT: We can talk about the standard 15 MR. SHAPIRO: Yes, and the -- you know, I see the
16 project flood, but we also have talked about the 16 Court's point, and that's why the Corps built the two
17 spillway design storm, right? 17 dams not to fail during a storm of that size. That
18 MR. SHAPIRO: Yes, sir. Yes, and as we discuss 18 doesn't change the fact, though, that Hurricane Harvey
19 in our post-trial brief and what became clear at trial, 19 was still a unprecedented storm and not foreseeable --
20 the Corps made the reasonable decision to build the dams 20 THE COURT: Well, it was for the location, not
21 not to fail during a larger storm. That's what the 21 necessarily for the Gulf region of Texas.
22 spillway design flood is. 22 MR. SHAPIRO: Well, it -- I appreciate what the
23 THE COURT: Right. As you say, it's a 23 Court is saying. I think the trial evidence is that
24 combination of engineering and meteorologic -- 24 over the five-year -- the five-year window of -- that
25 MR. SHAPIRO: In 1977, that's right. 25 Hurricane Harvey impacted these areas, it was an

28 (Pages 3247 to 3250)

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1 unprecedented storm.
2 THE COURT: Well, we can talk about Claudette,
3 Allison, and the Tax Day storm, and we almost have a
4 buildup of storms, so the climatic conditions appear to
5 have changed as well, or maybe it's just better
6 measurement. Who knows?
7 MR. SHAPIRO: Yes. And I think that is
8 consistent with Dr. Bedient's testimony, that the
9 weather has changed, maybe the measuring of weather --
10 it's certainly true that the measuring of weather has
11 changed, and that change in weather, according to
12 Dr. Bedient, Plaintiffs' own expert, was not foreseen by
13 the Corps when these projects were built in the 1940s.
14 But back to the contradiction to Plaintiffs'
15 claim we're making, in our view, Hurricane Harvey was
16 unprecedented, it was not foreseen, but it is also true
17 that Plaintiffs knew or should have known of the
18 possibility that their properties might flood in a large
19 storm.
20 Plaintiffs' error in this regard is that they're
21 conflating foreseeability, which should be measured back
22 in the 1940s, when the Government actually acted, with
23 the merits-based, reasonable investment-backed
24 expectations of the Arkansas Game & Fish multifactor
25 test, which pretty clearly should apply when the
3252
1 Plaintiff acquired his or her property.
2 So because they are measured at different times,
3 there's no contradiction here, and as we make clear in
4 our post-trial memorandum, in our view -- and I think
5 it's clear from the trial testimony -- there was
6 sufficient public information when Plaintiffs bought
7 their properties that Plaintiffs had no reasonable
8 expectation that their properties would never flood, and
9 I'll return to that when we get to the Arkansas Game &
10 Fish multifactor test.
11 I'll just note that -- I'll put a placeholder for
12 this so I don't forget. The Court --
13 THE COURT: I won't let you forget, Mr. Shapiro.
14 MR. SHAPIRO: The Court had suggested that
15 perhaps the Government is arguing that reasonable
16 investment-backed expectations -- you didn't use this
17 phrase -- was sort of a "get out of jail free" card, and
18 that if they had no reasonable investment-backed
19 expectations, therefore, their claim necessarily must
20 fail. That is not the argument we set forth in our
21 briefing.
22 Instead, what we are saying is that reasonable
23 investment-backed expectations is one of the factors
24 that the Court must consider when going through the
25 Arkansas Game & Fish factors and is relevant. It's
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1 certainly a very important aspect, and, in our view,
2 Plaintiffs have not shown that they had any reasonable
3 expectation that their properties would not -- would
4 never flood.
5 THE COURT: Well, they had expectations. You're
6 questioning whether or not those expectations were
7 reasonable.
8 MR. SHAPIRO: Yes, Your Honor.
9 THE COURT: Thank you.
10 MR. SHAPIRO: So just to finish up this
11 discussion, I want to try to tackle one more issue that
12 we talked about a little bit and that Mr. Charest
13 brought up, is the modifications that -- to the project
14 that occurred in the 1980s, and they make this point in
15 their reply brief, and I think it's at page 15, that,
16 well, maybe the Court should be looking at
17 foreseeability at a different time because the Corps
18 modified the reservoirs.
19 And the three examples they give in their reply
20 brief are that after the reservoirs were constructed in
21 the 1940s, the United States reviewed and updated the
22 relevant hydrology. Second, the Corps re-evaluated the
23 dam safety risks. And third, Plaintiffs go back to
24 this -- to the modifications -- the physical
25 modifications to the dam, which included raising the
3254
1 main embankments.
2 So for the first two points, yes, the Corps -- as
3 the Corps has to do, the Corps reviewed and updated the
4 relevant hydrology, it re-evaluated the dam safety risk,
5 and that analysis showed in the 1977 hydrology report
6 that the -- the Corps anticipated for the first time
7 that the standard project flood pool would exceed the
8 government-owned land boundaries. But, again, that was
9 30 years after the project was constructed, 30 years
10 after foreseeability should be measured.
11 And for the Plaintiffs' last point about the main
12 embankments, the Corps made modifications to the dams.
13 They did raise the main embankments in the 1980s. What
14 Plaintiffs -- excuse me, what Mr. Charest said was that
15 liability -- hopefully I'm not misquoting him, but
16 here's what I wrote -- liability doesn't -- in their
17 view does not depend on the raised embankments. We
18 agree, and that -- the reason that is is because the
19 issue of the main embankments is not relevant to what
20 happened during Hurricane Harvey, and that is because
21 the trial evidence on this showed -- and it was
22 undisputed -- that those actions, the raising of the
23 main embankment, did not increase the size of the flood
24 pools that were created during Hurricane Harvey.
25 So if you look at -- I think it's page 8 of
29 (Pages 3251 to 3254)
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3255 3257
1 Plaintiffs' reply brief, they appear to concede that the 1 protection from a dam failure.
2 flood pools were lower than the elevation of the main 2 THE COURT: That's exactly right.
3 embankments. So the flood pools that actually were 3 MR. SHAPIRO: Exactly. But because the flood
4 generated by Hurricane Harvey never reached the top of 4 pool never reached a level that caused it to go over
5 the main embankments. In fact, they never reached the 5 that, it --
6 top of the old embankments. 6 THE COURT: Well, I think it did, actually, on
7 THE COURT: What they did actually -- well, any 7 the north end of Addicks, but we had conflicting
8 changes or modifications didn't appear to change the 8 testimony on that particular point.
9 elevation of -- I think of it as the spillways on the 9 MR. SHAPIRO: I'll address that very briefly --
10 ends of the arms of the dams. Is that correct? They 10 THE COURT: All right, if you need to.
11 just hardened the arms of the dams. 11 MR. SHAPIRO: I don't think it matters, but just
12 MR. SHAPIRO: Yes, that is correct. 12 so we're clear --
13 THE COURT: Right? 13 THE COURT: I'm not sure it does either.
14 MR. SHAPIRO: That's correct. 14 MR. SHAPIRO: -- the water never reached a level
15 THE COURT: Okay. 15 where it went over the hardened auxiliary spillways. It
16 MR. SHAPIRO: So before, you will recall we stood 16 went around it.
17 on the spillways -- 17 THE COURT: We had one witness who testified it
18 THE COURT: We did. 18 did and another who testified it went around to the
19 MR. SHAPIRO: -- and we saw where the -- I think 19 north through a warehouse that existed there. So there
20 they called it roller-compacted concrete is located at 20 is conflict in the testimony.
21 the end of the Addicks Dam where we stood -- 21 MR. SHAPIRO: My understanding is that it did
22 THE COURT: But we talked a little bit about 22 not. It went around and --
23 elevations and subsidence and things like that, and the 23 THE COURT: Right, I understand.
24 Court is still not explicit on the elevations because of 24 MR. SHAPIRO: -- that was the testimony.
25 the possibility of subsidence, but I don't know if we 25 Regarding subsidence, I don't think that is an

3256 3258
1 need to go there. 1 issue that the Court needs to address. It sounded like
2 MR. SHAPIRO: Yes. I'll address that in a 2 Mr. Charest agreed with that.
3 moment, but just to stick with the roller-compacted 3 So, in short, the Plaintiffs did not show that
4 concrete, I think -- well, I'm sure what the trial 4 the Corps intended to place water on these properties,
5 evidence on that was was that before the 5 to invade the trial properties, and they failed to show
6 roller-compacted concrete was added, the Corps dug 6 that the invasion was the natural, direct, or probable
7 down -- I'm not going to use the right terminology -- 7 result of a government action.
8 but they dug down into the preexisting embankments and 8 THE COURT: So you essentially concede causation
9 then put the roller-compacted concrete in place, so that 9 but not foreseeability.
10 the net result was you had the embankments at a 10 MR. SHAPIRO: Well, I will talk about causation
11 particular elevation that was just dirt, and as a result 11 at least with respect to the three properties. We do
12 of this roller-compacted concrete addition, it remained 12 have an argument with respect to those three properties.
13 at the exact same elevation, but instead of being dirt, 13 THE COURT: Right, okay.
14 it's now roller-compacted concrete. That didn't change 14 MR. SHAPIRO: Before I turn to that, though, I'll
15 the elevation or change the size of the flood pool that 15 move on to the next Ridge Line requirement, which is
16 could be held back during a large storm. 16 Ridge Line requires that a plaintiff show that the
17 THE COURT: Right. 17 Government's interference with the property interest was
18 MR. SHAPIRO: And it certainly had no impact 18 substantial and frequent enough to rise to the level of
19 during Hurricane Harvey, because -- 19 a taking. So, I mean, again, it's our view that is a
20 THE COURT: It just changed the flow 20 separate analysis than Arkansas Game & Fish. It is the
21 characteristics of the pool itself. You weren't relying 21 second part of the test to determine whether the Court
22 necessarily only on gates. You were relying on the 22 has jurisdiction to reach the merits question.
23 hardened, if you will, spillways at the ends of the arms 23 THE COURT: I would just point out that Arkansas
24 of the dam. 24 Game & Fish focuses on the character of the land at
25 MR. SHAPIRO: It provided some additional 25 issue, which is about the same thing.

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1 MR. SHAPIRO: Understood.
2 This was a single flood, an extraordinary
3 circumstance, the largest recorded rainfall event in
4 U.S. history, and isolated invasions like this, a
5 single-flood event, are not the kind of interference
6 that rise to the level of a constitutional violation.
7 So Plaintiffs first argue that despite the fact
8 that they base their claim on a single flooding event
9 during Hurricane Harvey, that the Court should conclude
10 that flooding is inevitably recurring, and that is
11 obviously a term that appears in much of the cases that
12 the parties cite.
13 So, for example, Plaintiffs cite the Cress case
14 in their post-trial brief for the position that
15 permanent liability is no different in kind from
16 intermittent but inevitably recurring overflows, but the
17 problem with Plaintiffs' argument here is that there was
18 no evidence that flooding of this kind is inevitably
19 recurring. Predicting if and when flooding like this
20 might occur again on these properties from a Hurricane
21 Harvey-like event requires mere guesswork.
22 And I don't want to keep repeating myself, but
23 the probability that another Hurricane Harvey hits this
24 area and causes flooding like occurred in 2017 during
25 the life of a Plaintiff or during the life of
3260
1 Plaintiffs' ownership of any property interest is
2 extraordinarily low given the trial testimony on this.
3 Harris County is 5000 years. Mr. Kappel, focusing on
4 the two watersheds at issue, it was a 775- or 850-year
5 storm. And, again, Dr. Bedient's own expert report says
6 it's greater than a thousand-year storm in the area
7 around these two watersheds.
8 So Plaintiffs do not cite any case where flooding
9 was found to be inevitably recurring based on one flood
10 in a 70-year period given these types of probabilities,
11 and the cases that the parties do rely on that have
12 actually evaluated the issue have held that far more
13 likely events do not constitute inevitably recurring
14 flooding.
15 So, for example, the Fromme case, the United
16 States Court of Claims found that flooding that "can
17 reasonably be expected to recur at intervals of about
18 once in every 15 years on the average lacks the future
19 prospect of intermittent and frequent floodings which
20 the Supreme Court mentions in the Cress case.
21 There is a case, Bryant, which is at 216 Court of
22 Claims 409. The Court there found that flooding
23 occurring every 30 years "does not satisfy the proof
24 required to show that the government action has, in
25 effect, taken an easement over Plaintiffs' property."
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1 North County Hydroelectric Company, the Court
2 held that two floodings, maybe 20 years apart, did not
3 constitute inevitably recurring flooding. B. Amusement
4 Company held that one flooding did not constitute a
5 taking.
6 Plaintiffs have failed to show that this is
7 inevitably recurring flooding based on the fact that
8 there has been one flood and the likelihood of this
9 occurring again is remote given the trial evidence on
10 the recurrence interval for this storm.
11 So in their reply brief, then, Plaintiffs -- and
12 I think today -- Mr. Charest tries to make a pitch that,
13 well, maybe we don't need to show inevitably recurring,
14 that maybe the United States should be strictly liable
15 for a one-flood event. And in the reply brief -- and I
16 think this morning -- they rely on the case Stockton vs.
17 United States for the proposition that one flood might
18 be sufficient and rise to the level of a taking,
19 particularly here where the property is located upstream
20 of the dam, but this is a very different case.
21 So in Stockton, the Corps had constructed a dam
22 on the Arkansas River and began to allow it to fill to
23 its maximum level of 597 feet. So unlike the Addicks
24 and Barker Reservoirs, which are dry dams and not
25 normally full of water, the dam at issue in Stockton was
3262
1 intended to retain water at that level consistently and
2 repeatedly, and unlike in Addicks and Barker Reservoirs,
3 where Plaintiffs' properties had experienced flooding
4 once in 70 years and then only during the massive
5 Hurricane Harvey event, the Stockton court based its
6 conclusion on the fact that water levels at the dam had
7 reached the maximum 597 feet three times in three years
8 and that the United States "admitted that in the future
9 the 597-foot level will be reached, on average, once
10 every eight years." That is not even remotely
11 comparable to the 800-year storm that is Hurricane
12 Harvey that's at issue here.
13 So, in short, Plaintiffs have failed to show the
14 second part of the Ridge Line tort versus taking test.
15 They have failed to show that the interference was
16 substantial and frequent enough to rise to the level of
17 a taking.
18 Finally, Ridge Line requires that Plaintiffs
19 prove that an invasion must appropriate a benefit to the
20 Government at the expense of the property owner or at
21 least sort of preempt Plaintiffs' ownership for an
22 extended period of time rather than merely inflict an
23 injury that reduces its value.
24 So Plaintiffs argue that the Government --
25 because the project performed as intended, that must
31 (Pages 3259 to 3262)
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3263
1 indicate that there was some government benefit that
2 was acquired here, but the fact that the downstream
3 properties experienced less flooding does not describe
4 an invasion that benefits the Government at the expense
5 of the property owner. It describes instead a situation
6 where, during an enormously large storm, where the
7 United States had no alternative action available to it,
8 where some private properties were going to flood no
9 matter what the United States did, some property owners
10 benefited more than other property owners. That is not
11 the type of appropriation of a benefit for the
12 Government that somehow benefited federal land or
13 produced some other governmental benefit.
14 Plaintiffs also argue, well, maybe the
15 Government -- this is at page 20 of their reply -- well,
16 maybe the Government can't complain of this because this
17 was a condition that it made when it constructed these
18 reservoirs. So Plaintiffs again go back to inaction,
19 the Corps repeatedly rejected the idea of acquiring
20 property that would have prevented upstream flooding,
21 but, again, those types of nonactions do not state a
22 claim for a takings claim, and even if true, that would
23 not demonstrate that the invasion benefited the
24 Government at the expense of the Plaintiffs.
25 And, finally, the flooding here did not preempt
3264
1 Plaintiffs' ability to enjoy the property for an
2 extended period of time. The floodwaters stayed on the
3 properties for -- for most of the properties for less
4 than four days, far shorter than the length of ownership
5 of the property and far shorter than the length of other
6 cases examining the issue. And this is a separate
7 question really from the damage that occurred. We're
8 talking about the length of actual invasion, and that
9 was for most properties less than four days.
10 Well, Plaintiffs make a point of this. Well,
11 they couldn't get back to their house and couldn't make
12 the repairs necessary for a much longer period of time.
13 That focuses on the wrong -- excuse me, the wrong time
14 period, because it -- the government action here, as
15 alleged in the complaint, is the invasion by placing
16 water on these properties. It would be incorrect to
17 focus on the longer period of time that the Plaintiffs
18 are relying on because the Government has no control
19 over the amount of time it might take any particular
20 landowner to make repairs to his home. Those repairs
21 might be delayed for reasons that have nothing at all to
22 do with Addicks and Barker-related flooding.
23 Hundreds of thousands of people, millions of
24 people in the Houston area were impacted by Hurricane
25 Harvey, and the fact that, in a massive storm that
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1 affects so many people, it might take longer than
2 Plaintiffs would have liked to make the necessary
3 repairs and move back into their homes is not a result
4 of what the Government did; it's the result of a massive
5 storm occurring. So, here, the proper duration should
6 be measured as the length of time that floodwater is
7 inside the homes, and, again, that for most properties
8 was less than four days.
9 I'll just mention damage here, and we'll return
10 to this in a few minutes, but the damage that did occur
11 was repairable. So we went through every trial property
12 on Plaintiffs' side during their closing showing
13 photographs of damaged interiors, but what is important
14 to recognize is that all of those repairs have been made
15 or could be made for one or two of the properties.
16 Everything that occurred here was repairable and placed
17 back to the condition that existed before the storm.
18 So, I mean, Plaintiffs' real complaint is that
19 they had to pay for those repairs, but that type of
20 consequential injury is not an appropriation of a
21 benefit to the United States. It is, instead, as the
22 Ridge Line Court says, an action that merely inflicts an
23 injury that reduces its value, and as that Court makes
24 clear, that's not enough to rise to the level of a
25 taking.
3266
1 In addition, Plaintiffs' argument ignores
2 entirely the substantial monetary and other support
3 already provided by FEMA and the other federal agencies
4 that was discussed at trial, as well as the substantial
5 financial support that's anticipated in the future. So,
6 in short, the basis of Plaintiffs' claim that a flood
7 control project caused a single flood during a large and
8 rare storm and resulted in repairable harm, that is a
9 claim that should be brought as a tort, if at all, not
10 as a claimed violation of the Fifth Amendment. So the
11 Court should dismiss the claim because the Court lacks
12 jurisdiction over it.
13 Before I move on, I just want to stop and make
14 one point just to underscore it at this point before I
15 talk about the next issue. As I mentioned, in our view,
16 the Court need go no further, that the Plaintiffs' claim
17 fails as a matter of law under the Ridge Line test.
18 Plaintiffs are arguing that a single flood with the
19 remote possibility of another -- that another Hurricane
20 Harvey might strike the area again at some uncertain
21 point in the future should be evaluated as a
22 permanent -- a permanently recurring-type taking, and we
23 disagree with that argument.
24 But if the Court agrees, it should then evaluate
25 our other arguments, including assessing the merits of
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3267 3269
1 Plaintiffs' claims under the Arkansas Game & Fish 1 the property [sic] on the upstream property, and keeping
2 factors, and if liability is ultimately found on the 2 the gates open might have reduced the flooding on some
3 theory that Plaintiffs are espousing here, the Court 3 of the upstream properties, but it would have increased
4 should find that the interest taken is a permanent flood 4 the flooding on the downstream properties. That is the
5 easement over these properties. 5 very definition of a no-win situation. It is the
6 I've been talking for a while. Do you want to 6 definition of a zero-sum game. There, you help one
7 take our lunch break now, Your Honor, before I move on 7 group, and you hurt the other. You hurt one group, you
8 to my next point? 8 help the other.
9 THE COURT: It's actually up to the parties. I'm 9 THE COURT: Well, let me just stop for a moment.
10 willing to take it at any convenient time. I'm not 10 The Corps actually took credit for benefiting the
11 going to ask you how much more you have. I won't do 11 downstream properties, and it basically netted out the
12 that. 12 damage on the upstream side and said there was a net
13 Mr. Charest, do you have a view? 13 benefit to the community as a whole of, I don't know, $7
14 MR. CHAREST: From the Plaintiffs' perspective, 14 billion, or whatever it was, not quite, maybe $6.8
15 we are ready to keep going until we're done. We don't 15 billion, right?
16 need to stop. 16 MR. SHAPIRO: Yes, that -- I was actually going
17 THE COURT: Mr. Shapiro, what is your -- 17 to mention that fact, because that came up with
18 MR. SHAPIRO: Why don't I try to get through my 18 Mr. Charest.
19 next argument, and then we can take a break. 19 THE COURT: Okay. Well, it did, but --
20 THE COURT: All right. Let's do that. 20 MR. SHAPIRO: And that is true. The Corps'
21 MR. SHAPIRO: So before I talk about Arkansas 21 operation here, when presented with a no-win situation,
22 Game & Fish, I want to address a more preliminary issue, 22 they did the best they could under those circumstances,
23 and that is that liability is foreclosed here because 23 and the result of that was the saving of a significant
24 the Corps' actions were an exercise of government power 24 amount of dollars, 7 billion according to the document
25 to prevent loss of life and mitigate unavoidable damages 25 that Mr. Charest referenced, and as well as protecting

3268 3270
1 to private properties. 1 the safety and lives of the downstream property owners,
2 So in cases like Miller vs. Schoene and Mugler 2 and that is certainly correct.
3 vs. Kansas, a destruction or seizure of property is not 3 THE COURT: Well, certainly, there really was a
4 generally viewed as a compensable taking so long as the 4 benefit. Let's not ignore that fact in all the other
5 Government is acting to protect public health or safety. 5 problems with the damage upstream. The dams worked as
6 So the case law that interprets this says that the 6 expected and as designed, and the -- and they were
7 distinction between an exercise of the police power, as 7 operated under that set of constraints and conditions as
8 it's sometimes known, and a constitutional taking has 8 well and produced a significant benefit to the community
9 been characterized since the Mugler Court as "whether 9 as a whole.
10 the government action operates to secure a benefit for 10 MR. SHAPIRO: Exactly.
11 or to prevent a harm to the public," and that's a case 11 THE COURT: Right.
12 called Morton Thiokil, 4 Claims Court 625. 12 MR. SHAPIRO: That is the very definition in our
13 And then other courts, like Patty vs. U.S., 13 view of the application of the police power. That's
14 136 Fed. Cl. 211, say that when assessing this, to try 14 what the -- that's what it requires, Your Honor. It
15 to determine whether government action constitutes an 15 requires that -- what cases like Mugler vs. Kansas say
16 exercise of the police power, the relevant inquiry 16 is that a government action that might destroy a
17 should be on the character of the Government's action in 17 property cannot generally be viewed as a compensable
18 light of the particular circumstances of the case. 18 taking so long as the Government is acting to protect
19 So here the trial evidence showed why this 19 public health or safety.
20 doctrine applies. When Hurricane Harvey struck, the 20 THE COURT: Well, one of the problems with the
21 Corps found itself in a no-win situation, and we 21 application of the police power theories or the
22 characterized that correctly at trial and in our 22 necessity doctrines of this case has to do with intent
23 post-trial briefing as a zero-sum game scenario. 23 and foreseeability, but we will pass over that.
24 Keeping the gates at the dams closed may have helped the 24 MR. SHAPIRO: Well, I may turn to that as I go
25 downstream property owners, but it would have increased 25 through the rest of my argument on this point. I think

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1 one point that Plaintiffs tried to obfuscate, though,
2 here is this truly was a zero-sum game situation. They
3 make an argument that it wasn't, but the evidence at
4 trial was that it was, and that came from Mr. Thomas, it
5 came from Dr. Nairn, and, tellingly, it came from
6 Plaintiffs' own expert, Dr. Bedient, who at page -- if I
7 have the page number correct -- 2096 agreed that this
8 was a zero-sum game situation.
9 And it was, because no matter what the Corps did
10 in the moment of Hurricane Harvey, upstream properties
11 were going to flood, downstream properties were going to
12 flood, and you try to help one, you hurt the other.
13 That was the reality of the situation the Corps faced in
14 light of that historic storm.
15 THE COURT: Well, except that the dams retained a
16 lot of water even on government-owned land, and that
17 protected downstream anyway.
18 MR. SHAPIRO: That's true, yes.
19 THE COURT: We can't ignore that.
20 MR. SHAPIRO: That is certainly correct.
21 So despite what Dr. Bedient testified at trial
22 and what the actual trial evidence was, that, yes, this
23 was a zero-sum game, Plaintiffs say, well, this doesn't
24 apply because -- and this is page 1 of their reply --
25 well, the Corps had "already determined and planned to
3272
1 protect the downstream property owners at the expense of
2 those upstream" and that the Corps "made no emergency
3 decision that were contrary to the Water Control
4 Manual." That's Plaintiffs' language. So I want to
5 address those.
6 First of all, the idea that this was not a
7 zero-sum game, again, it contradicts all of the trial
8 evidence on this point, including the opinion of
9 Dr. Bedient. Second, the fact that the Corps followed
10 the Water Control Manual does not mean that the Police
11 Power Doctrine does not apply. This is so because the
12 evidence showed that no matter what the Corps did,
13 upstream and downstream properties were going to flood,
14 and decreasing flooding on one group would increase the
15 flooding on the other, and vice versa.
16 And why is that? Because Hurricane Harvey was a
17 massive storm, and it created historically large,
18 dangerous flood pools which had never occurred before in
19 the history of the project. And given that extreme
20 circumstance, the Corps did what it could to protect the
21 public health, properties, and save lives, and that is
22 what cases like Miller vs. Schoene require.
23 So, in addition, Plaintiffs' argument ignores the
24 fact that, first of all, the Water Control Manual did
25 not just magically appear out of thin air. The
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1 decision-making that Plaintiffs claim is lacking is
2 built into the Water Control Manual, about how to
3 operate during and make operational decisions
4 during storms.
5 So the Corps did go through that analysis. It's
6 not -- there's no requirement for application of the
7 Police Power Doctrine that the Corps make an
8 instantaneous decision that it hasn't thought through
9 before.
10 In addition, the Water Control Manual is a
11 guidance document. The Corps is not bound to follow it.
12 Mr. Charest said that, well, there's no discretionary
13 decision-making here during Hurricane Harvey. That is
14 incorrect. In their reply brief, Plaintiffs make the
15 same point. They argue that the Government "did not
16 make a single discretionary decision regarding the
17 operation of the gates during Harvey." That is wrong.
18 Mr. Thomas explained that the Corps did exercise
19 its discretion with regard to the draw-down plan as it
20 reduced the releases from the reservoirs during the
21 storm, and that's page 178 of the trial evidence. And
22 contrary to Plaintiffs' argument, the trial evidence
23 also showed that the Corps did consider its options when
24 Hurricane Harvey struck in order to decide what it was
25 going to do.
3274
1 So we can look at Plaintiff's Exhibit 1658, if we
2 can put it on the screen. Plaintiff's Exhibit 1658 is
3 an August 26th, 2017, email which copied several people,
4 including -- this one came from Mr. Thomas, and in this
5 document, the Corps is discussing several proposed
6 alternative actions, including placing sandbags at
7 various places or maxing out flows from the reservoir.
8 Oh, if we can go back up to the top.
9 And Mr. Thomas responds to those proposals, and
10 at trial he discussed some of the internal discussions
11 about how the project should be operated, but in this
12 email response, he explains that if the Corps -- maybe
13 the Corps could release more water faster, but if it did
14 that, it would flood downstream properties more. And
15 the sandbag idea was not feasible, although it was given
16 some consideration, but -- and then also Mr. Thomas
17 mentions in this email that even if the Corps did
18 increase releases, that would not "guarantee that we
19 don't flood upstream houses." So the Corps did consider
20 its options. It did not robotically follow some set
21 operational criteria.
22 And then, finally, Plaintiffs argue that the
23 Police Power Doctrine cannot apply here because this was
24 not an emergency, but the word "emergency" does not
25 appear in the Miller vs. Schoene decision. The Miller
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3275 3277
1 court instead states that "When forced to such a choice, 1 the Plaintiffs repeatedly quote the line from Armstrong,
2 the state does not exceed its constitutional powers by 2 the Supreme Court case from the 1960s, that the takings
3 deciding upon the destruction of one class of property 3 clause is "designed to bar government from forcing some
4 in order to save another which, in the judgment of the 4 people alone to bear public burdens which in all
5 legislature, is of greater value to the public." And 5 fairness and justice should be borne by the public as a
6 that is this situation. 6 whole," but what they seem to forget is that theirs were
7 The United States, as Mr. Charest underscored in 7 not the only properties to flood during Hurricane
8 his comments, the calculations show that it was almost a 8 Harvey.
9 $7 billion net savings as a result of the operation of 9 As we argue this case, in this particular moment,
10 the reservoirs. Now, is that the right decision? Is it 10 and you can see sitting back here -- at least he was
11 the wrong decision? I am but a mere Department of 11 here at one point -- one of the downstream Plaintiffs'
12 Justice trial attorney. I don't know. I'm not the one 12 counsel is here to see how this goes, but as we are
13 that has to make those decisions, but Congress did, and 13 arguing this case, there is another set of Plaintiffs
14 the Corps followed those directives, and its actions 14 whose properties are located downstream of the
15 saved properties and it saved lives, and that is enough 15 reservoirs, hundreds of properties, who argue that the
16 to show that the Police Power Doctrine applies. 16 Court should have kept more water behind the reservoirs.
17 Even if emergency -- even if an emergency 17 They're taking exactly the opposite position than
18 situation is required, as Plaintiffs incorrectly argue, 18 Plaintiffs here are taking, whereas Plaintiffs here are
19 this was an emergency. Mr. Thomas explained that 19 arguing that the Corps should have released more water
20 Colonel Zetterstrom issued a general emergency around 20 from the reservoirs.
21 August 25th which covered dam safety. That's page 118 21 Plaintiffs were not --
22 to 119 of the trial transcript. 22 THE COURT: I'm not sure they're arguing that in
23 He explained that the Corps followed emergency 23 this particular case.
24 level one and emergency level two, as set forth in the 24 MR. SHAPIRO: I appreciate the Court's comments,
25 Emergency Action Plan, and we can take a look at that. 25 but I think effectively that's what they must be

3276 3278
1 That's JX 118. 1 saying --
2 So this is the page ending in 19817 and 18, and 2 THE COURT: Well --
3 we're showing both here on the screen, and what these 3 MR. SHAPIRO: -- that the Corps took their
4 describe is emergency level one activities that the 4 property by retaining water that should not have been
5 Corps should be taking in certain emergency situations, 5 retained on their property.
6 when, for example, there's seepage; and then emergency 6 THE COURT: I don't know about "should not have
7 level two, when there is a -- the pool has developed 7 been retained." That's part of the problem.
8 even further, and here, as the Court knows, there was 8 MR. SHAPIRO: Well, if the Corps had not done
9 water going around the end of the -- the northern end of 9 what it did and it had kept the gates open, the trial
10 Addicks. So the Court was following emergency action 10 evidence is very clear that the downstream properties
11 one, emergency action two, because Colonel Zetterstrom 11 would have flooded more.
12 had already declared an emergency situation, and this, 12 THE COURT: Exactly, but that is not necessarily
13 in fact, was an emergency situation. I think the 13 the Plaintiffs' argument in this case.
14 President of the United States also declared this as an 14 MR. SHAPIRO: Understood.
15 emergency situation, as did the Governor of Texas. 15 The point I want to make, though, is that the
16 The Corps activated the Addicks and Barker 16 Plaintiffs were not singled out to bear some public
17 Emergency Coordination Team once the size of the storm 17 burden. Plaintiffs upstream flooded, Plaintiffs
18 became clear, further indication that this was an 18 downstream flooded, Plaintiffs far away from the
19 emergency -- a growing emergency situation. Mr. Thomas 19 reservoir flooded. So in Harris County's 2018 Federal
20 explained at trial that there was a risk of dam failure 20 Report, which is admitted into evidence as DX 737, that
21 during the storm because this was the largest storm to 21 notes that 4.7 million people were impacted by Hurricane
22 ever hit the upper watersheds in the history of the 22 Harvey in Harris County.
23 projects, and that's page 119 to 120 of Mr. Thomas' 23 This was an emergency situation. The Corps acted
24 testimony. 24 to reduce and mitigate unavoidable harms to the public.
25 So as I complete my discussion of this doctrine, 25 The effect of the Corps' actions, as Mr. Charest

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3279 3281
1 underscored, was to save a net -- according to that one 1 Your Honor, I want to turn now to the causation
2 document -- was to save a net of approximately $7 2 question. So in order to prove causation under the
3 billion. Plaintiffs' properties were damaged as part of 3 St. Bernard Parish line of cases, the Court needs to
4 that action to protect public health and safety, and 4 compare what actually happened with what would have
5 under established Supreme Court precedent that we cite 5 happened in the absence of any federal action. So when
6 in our brief and that I've discussed here today, their 6 we started this case, we had to ask ourselves, what
7 claims cannot succeed as a Fifth Amendment takings 7 would this have looked like if the project had not been
8 claim. 8 constructed?
9 So with that, Your Honor, this might be a good 9 Well, what that would mean is that there would be
10 break point for a lunch if the Court is willing. 10 no dam, there would be no reservoirs, and it would also
11 THE COURT: Let's do that. Let's take about 55 11 mean that the Corps would not have granted the easements
12 minutes for luncheon. We'll come back at -- reconvene 12 to allow upstream developers to move water off of the
13 at 2:00 if that's satisfactory. 13 upstream properties into the nonexistent reservoirs.
14 Mr. Shapiro? 14 So when one considers the no-project scenario,
15 MR. SHAPIRO: Yes, Your Honor. 15 one has to remove those upstream channels that the Corps
16 THE COURT: Mr. Charest? 16 granted through the outgrants because those simply would
17 MR. CHAREST: Of course, sir. 17 not exist in the no-project world.
18 THE COURT: We'll do it. 18 So we can look at -- Dawn, please -- Defendant's
19 (Lunch recess, 1:05 p.m. to 2:00 p.m.) 19 Exhibit 800 and 801, which is just two exhibits that
20 20 were introduced at trial that show the location of the
21 21 outgrants that were made, and that -- and the testimony
22 22 showed that those outgrants allow water to move off of
23 23 the upstream properties and move water into the two
24 24 reservoirs.
25 25 So Plaintiffs did not consider the impacts of

3280 3282
1 AFTERNOON SESSION 1 those outgrants, and so really they have failed to meet
2 (2:02 p.m.) 2 their burden of proof with regard to causation with
3 THE COURT: Please be seated. Welcome back. 3 respect to the burdened Micu and Giron properties, which
4 We are encouraged by the people who are listening 4 Dr. Nairn's analysis showed would have flooded if the
5 in Houston to ask that counsel speak clearly enough and 5 Corps had not granted -- had not built those projects in
6 within reasonable proximity to the microphone so they 6 sort of the no-project scenario, tied together with the
7 can hear as well. 7 testimony of Mr. Hooper, who showed that the amount of
8 MR. CHAREST: Yes, sir. 8 flooding, although less under the no-project run, the
9 THE COURT: All right. Mr. Shapiro, you may 9 amount of damage would have been effectively the same in
10 continue. 10 the no-project run for those properties.
11 MR. SHAPIRO: Yes, sir. Is this the microphone 11 I think that Burnham provides the easiest
12 here? 12 property to describe this. As I think Plaintiffs'
13 THE COURT: Yes. 13 counsel said during their closing, correctly -- and I
14 MR. SHAPIRO: Okay. There's a red button on it. 14 think this was Mr. Easterby -- the Burnham property
15 Do I need to -- is it -- maybe it's off? I don't know. 15 flooded three feet during the Tax Day Storm. The
16 THE COURT: Lawrence, can you check? I don't 16 Burnham property is located in the hundred-year
17 think the -- 17 floodplain and was located in the hundred-year
18 LAW CLERK: It's live. It's live. 18 floodplain when Hurricane Harvey hit. So, I mean, the
19 THE COURT: Okay. 19 idea that the Burnham property, just to take the
20 Mr. Shapiro, you may proceed. 20 example, is going to flood during an 850-year storm, I
21 MR. SHAPIRO: Thank you, Your Honor, and I will 21 mean, should not be a surprise to anyone.
22 do my best to try to project, so -- 22 It was with regard to this property, in
23 THE COURT: You're fine. In your ordinary voice, 23 particular, that we tried to focus or I tried to focus
24 you're fine. 24 at trial to get -- to try to understand what Dr. Bedient
25 MR. SHAPIRO: Thank you. 25 had actually done in his analysis, and we focused on

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1 this property, in particular, because this was where
2 Dr. Bedient -- this was a situation where Dr. Bedient
3 changed his expert testimony the day before trial
4 started when we got a new expert report which had
5 different numbers for the Bedient [sic] property and a
6 few of the others.
7 We have now seen a hundred -- at least a hundred
8 pages of post-trial briefing from Plaintiffs, and even
9 this morning, the explanation of what calculation
10 Dr. Bedient did in order to reach whatever conclusion he
11 might have reached with regard to the Bedient [sic]
12 property, in particular, remains unclear.
13 We've made responses to the other arguments that
14 Plaintiffs have made with regard to the expert analyses
15 in our post-trial brief, and we discussed Dr. Nairn's
16 testimony as well as Dr. Bedient's testimony, and I want
17 to leave most of those questions, just we will rely on
18 our briefing for that, but there were a couple points
19 that Mr. Charest brought up during his closing that I
20 want to touch on.
21 So, first of all, Mr. Charest said that the error
22 rate in Dr. Nairn's report was one foot. He may have
23 misspoken at one point and said it was three feet. That
24 is really a bit misleading. Dr. Nairn testified that
25 one of the runs, the actual Harvey run, at one point in
3284
1 time had a -- was overpredicting by approximately a
2 foot, but that is not true for the no-project run, and
3 it's not true for the other runs that Dr. Nairn did.
4 For the no-project run, if I have my number
5 correct, Dr. Nairn's modeling effort was more precise.
6 It was in the neighborhood of 0.3 feet. So the one foot
7 that Plaintiff -- that Mr. Charest has repeated during
8 his closing, that's simply not the fact for the
9 no-project run.
10 Second, Mr. Charest testified -- argued that
11 Dr. Nairn had used bad information about the weather and
12 that he had, according to Plaintiffs, wrongly relied on
13 the analysis that was conducted by Mr. Kappel regarding
14 the weather analysis and the rainfall analysis. He
15 claimed that Mr. Kappel had picked selective data
16 sources.
17 The trial testimony on this was clear.
18 Mr. Kappel used more rainfall sources, as is the
19 standard approach in efforts like this, and so he used
20 the state-of-the-art data that was available. He was
21 correct to use as many different data sources as he
22 could because the rainfall at different areas was not
23 the same; it was spatially variable. And so
24 Mr. Kappel's analysis incorporates that and reflects
25 that, and his analysis was state of the art according to
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1 standard methodology, and Dr. Nairn's use of that data
2 was also correct.
3 And then, finally, Mr. Charest pointed to the
4 Upper Buffalo Bayou gauge, which he claims Dr. Nairn
5 wrongly said was reading data erroneously, but this
6 really can't be a disputed issue given the trial data on
7 this point. Unlike the other gauges in this area, this
8 gauge did not show an early peak during the early part
9 of the storm when there was a great deal of rainfall.
10 The field notes for this Upper Buffalo Bayou
11 gauge show that the crest gauge pipe was impacted by
12 vegetation, and that's Plaintiff's Exhibit 155. And
13 after the fact, it is correct that the United States --
14 the USGS did release a correction for this gauge. So
15 the USGS -- Mr. Charest claimed, well, why didn't we ask
16 any questions to the USGS witness? Well, Plaintiffs
17 didn't ask any questions to Mr. East either.
18 And it remains a fact, as was demonstrated at
19 trial, that USGS, in fact, did issue a correction to
20 this gauge. So USGS knew that there was some kind of
21 issue going on with this. What Dr. Nairn explained at
22 trial was one explanation of why that might be, and that
23 was the vegetation that was noted in the field notes,
24 PX 155. Our other arguments with regard to Dr. Nairn's
25 and Dr. Bedient's reports are set forth in our memo.
3286
1 But I want to turn back now to the outgrant issue
2 and why Plaintiffs believe that the Court should just
3 ignore the outgrant issues. As we read their briefing,
4 they've offered three reasons. First, they argue that
5 the outgrants are not federal projects, and they argue
6 that at page 31 of their reply. But what that ignores
7 is that the Corps issued those outgrants, they exist
8 only because the project exists, and they are physically
9 located on federal property. But for the project, these
10 federal easements would not exist. So as we detail in
11 our post-trial brief at pages 16 and 17, in a table
12 there, the federal justification for those channels is
13 precisely because of the flood control benefits that
14 those provide to upstream properties.
15 Second, Plaintiffs argue that the outgrants were
16 irrelevant because they were never intended to provide
17 upstream protection against project-induced flooding,
18 but the outgrants themselves show that the outgrants
19 were granted by the Corps to allow water to flow from
20 the upstream properties more quickly into the
21 reservoirs. So the documents make clear that without
22 those outgrants, several of the properties would have no
23 alternative way of moving water off of the property, and
24 that leads to Plaintiffs' last point.
25 They make the argument that the easements were
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3287
1 not essential to the upstream development, and they make
2 the point in their reply brief that Ms. Johnson-Muic's
3 allegation that the outgrants were the only means to
4 drain upstream areas is simply not true, but
5 Ms. Johnson-Muic was simply testifying to what the
6 documents themselves say, and she correctly noted that
7 several of the outgrants documented that those outgrants
8 were the only viable alternative available to reduce
9 flooding.
10 So, for example, DX 130 stated that draining into
11 the reservoir was the only viable alternative and
12 necessary to prevent flooding. DX 94 and DX 95 both
13 state that without the outgrants, frequent flooding
14 would render these upland -- upstream lands
15 undevelopable. And DX 152 states that the only feasible
16 and economic option to reduce flooding was construction
17 of a bypass channel on government lands. So,
18 Ms. Johnson-Muic's testimony is fully consistent with
19 the documents that she was tasked with interpreting at
20 trial.
21 Finally, I want to turn to the Arkansas Game &
22 Fish factors. So if the Court does reach the merits of
23 Plaintiffs' claims, it should reject those claims under
24 the multifactor test articulated in Arkansas Game &
25 Fish. So there has been some dispute from Plaintiffs
3289
1 multifactor test in our brief. It's on length, and we
2 tried to address -- well, we do address each of the
3 properties individually. So I am not going to spend the
4 time to respond to the comments by other counsel on
5 Plaintiffs' side today. That's all set forth in our
6 brief in regard to each of the individual properties,
7 but I do want to focus just on a few of the Arkansas
8 Game & Fish factors.
9 First, the character of the Plaintiffs' land. So
10 that is one of the factors that Arkansas Game & Fish
11 identifies. The upstream properties flooded because
12 homes -- for the most part anyway, homes were built
13 decades after the reservoir's construction in areas
14 subject to controlled inundation, so within an area that
15 would flood under certain large storms.
16 So the character of Plaintiffs' property at the
17 time they bought it, their property, and the time --
18 excuse me, at the time that the takings accrued was in a
19 location that has always been prone to flooding during
20 large storms, located behind a federal reservoir that
21 could, under extreme storm conditions, impound large
22 pools that might impact those properties. That is the
23 character of Plaintiffs' property.
24 Duration is one of the elements that the Court is
25 to consider under Arkansas Game & Fish, and there's a

3288 3290
1 about whether the Arkansas Game & Fish multifactor test 1 dispute between the parties about how to measure the
2 applies. I mean, what Arkansas Game & Fish says is that 2 duration, which I've touched on earlier. The
3 government-induced flooding of limited duration may be 3 appropriate time period is the time period that the
4 compensable in some circumstances but that the Court 4 water is inside the property, and I've explained this
5 must "weigh carefully the relevant factors and 5 before, but just to highlight this point, the reason for
6 circumstances of each case." 6 that is is if that is the government action -- according
7 So what we hear Plaintiffs arguing is that the 7 to Plaintiff, placing water on the upstream
8 Court should just ignore the Arkansas Game & Fish 8 properties -- the amount of time it might take
9 factors and apply a per se taking rule because this 9 Plaintiffs to get the necessary materials to complete
10 involves a physical taking, but Arkansas Game & Fish 10 their repairs depends on a variety of issues that have
11 also dealt with a physical takings claim. It was a 11 nothing to do with the Federal Government, including the
12 temporary, recurring flooding situation, and as Your 12 fact that Hurricane Harvey had widespread impacts across
13 Honor knows, the Court -- 13 the Houston area.
14 THE COURT: And as you know, Mr. Shapiro. 14 And it also depends on decisions -- individual
15 MR. SHAPIRO: Yes, Your Honor. 15 decisions made by the individual property owners about
16 -- where you held, Your Honor, that the 16 how and when to make repairs to individual properties.
17 Commission's property experienced six years of repeated 17 Those are questions that are outside the government
18 inundation as a result of the Corps' deviations from the 18 action and point to the fact that the duration should be
19 Water Control Manual. So acceptance of Plaintiffs' 19 measured as of -- for the length of time that the
20 position here would result in a bizarre anomaly. The 20 water's inside the property. When addressing this,
21 Supreme Court -- 21 Mr. Charest said, well, he thought that the duration
22 THE COURT: The Court is not going to do that. 22 should be measured as, you know, much longer, perhaps
23 Let's go forward. 23 months or years, but I didn't hear him cite a single
24 MR. SHAPIRO: Very good. 24 case that would support that position.
25 We discuss the merits of our Arkansas Game & Fish 25 Severity is another element, and we discussed

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1 this in our briefing. Mr. Charest said that, well, the
2 Government did not call a -- one of our expert -- our
3 potential experts to rebut testimony that was provided
4 by Bell and Deal at trial, and he attempted to derive
5 some sort of negative inference from --
6 THE COURT: The Court will not do that.
7 MR. SHAPIRO: -- our decision on -- thank you.
8 The reason we don't need to rebut that testimony,
9 Your Honor, is that that was not compelling in any way.
10 What that testimony was was a -- was raw data,
11 unadjusted; it was not an appraisal; there was no
12 adjustments made by Bell or Deal; and, tellingly, it was
13 not property-specific at all. So one could look at that
14 information and draw no conclusions about any particular
15 property.
16 THE COURT: Is this argument affected by the
17 recently passed Texas statute?
18 MR. SHAPIRO: There is no evidence about that
19 that was presented at trial --
20 THE COURT: No, but the Court can and must take
21 judicial notice of the new statute.
22 MR. SHAPIRO: Well, what I heard Mr. Charest say
23 was that -- and I'm going to try -- I'm going to quote
24 him directly -- "Imagine what is going to happen to
25 prices as a result of having to, according to
3292
1 Mr. Charest, having to make this notification based on
2 this new Texas law." Well, asking the Court to imagine
3 is not evidence, so that's the problem with this
4 argument. He's asking you to just imagine that maybe
5 there's going to be a reduction in the price as a result
6 of something the Federal Government did not do,
7 something the -- apparently the state has done,
8 according to him, that's going to require certain
9 disclosures. That's not something that we have done.
10 It's something that the state is requiring.
11 THE COURT: Well, the Court would not do that.
12 We are not at the damages stage of this case. We are
13 still at liability, though we're talking about severity
14 in terms of the overall generic impact, right?
15 MR. SHAPIRO: Yes, correct. So this new statute
16 that Mr. Charest raises for the first point -- for the
17 first time in his closing argument, it's not relevant
18 for purposes of determining the severity. And even if
19 it were, it's not something that the Federal Government
20 did; it's something that another governmental body has
21 done. And beyond that, it sounds like, from
22 Mr. Charest's description of it, what it requires is
23 some sort of disclosure of the fact that the property
24 might be behind the reservoir. Well, that has always
25 been the case. I don't know the details of the state
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1 law because this wasn't part of the briefing.
2 I want to turn to the reasonable investment-
3 backed expectations, which is identified by the Supreme
4 Court as a relevant consideration. So as we discussed
5 in our post-trial brief, sufficient information existed
6 at the time of each of the Plaintiffs' acquisitions that
7 they knew or should have known about the possibility of
8 upstream flooding. So Plaintiffs -- and, again, today
9 Mr. Charest says, well, the landowners testified
10 uniformly that they didn't have subjective knowledge
11 that their properties might flood, and they repeat that
12 in the reply, for example, at page 22. But reasonable
13 investment-backed expectations are measured as an
14 objective test, not a subjective test.
15 And so here today and then also in their
16 briefing, they make the argument, well, the Court didn't
17 allow Dr. Galloway to testify, therefore, we didn't --
18 we failed to make our showing with regard to reasonable
19 investment-backed expectations, but that's incorrect.
20 We relied on the wealth of data that was available in
21 the public sphere to the landowners and other members of
22 the public that revealed and showed the possibility of
23 upstream flooding.
24 Mr. Charest talked about, well, driving around,
25 certainly he would not have the feeling that maybe these
3294
1 properties would flood, but our position doesn't rest on
2 what one attorney might think about when he's driving
3 through a reservoir. It depends on what is in the trial
4 evidence, and that was replete with information that
5 supports our position.
6 For example, the publicly available maps showing
7 the possibility of upstream flooding that had been
8 available for years and decades; public discussions
9 about upstream flooding risks in the 1980s and 1990s;
10 the Corps' discussion of the possibility of upstream
11 flood risks with developers in the 1980s and 1990s; the
12 written warning language included in the four Bend
13 County subdivision plats by the early 1990s; Harris
14 County Flood Control District's warning about flooding
15 risk; the March 1992 flood pool that demonstrated the
16 possibility of upstream flooding; the 1995
17 Reconnaissance Report which publicly discussed the
18 possibility of upstream flooding; the 1996 Harris County
19 Flood Control District Public Report that discussed the
20 possibility of upstream flooding and that was discussed
21 in the local newspaper, The Houston Chronicle; and
22 public meetings in 2009 and 2010 that also discussed the
23 possibility of upstream flooding.
24 Plaintiffs repeatedly say that how could they
25 have possibly expected their properties to flood, but
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3295
1 just to take one example, many of the properties were in
2 or near the 500-year flood hazard zone using the FEMA
3 flood maps. They are part of the record and have been
4 long available to the public. How can anyone claim
5 surprise that their properties flooded when a 775-year
6 or 850-year storm, like Hurricane Harvey, happened?
7 For those reasons, Plaintiffs have failed to meet
8 their burden of proof under the Arkansas Game & Fish
9 multifactor test, and that provides an additional reason
10 why the Court should reject their claims. Our
11 post-trial memorandum -- I won't call it a brief --
12 memorandum discusses our remaining arguments, and we'll
13 rest on those with respect to those other issues.
14 THE COURT: You're kind in not calling it a
15 brief.
16 MR. SHAPIRO: I do want to close just by
17 returning to a fact that really should not be disputed,
18 that flooding on private properties in 2017 occurred
19 because Hurricane Harvey dropped a massive amount of
20 rainfall after it stalled and lingered over the Addicks
21 and Barker watersheds. The Supreme Court in Arkansas
22 Game & Fish called its decision "modest" and "not one
23 that augurs a deluge of takings liability." The case
24 that Plaintiffs are pursuing here runs afoul of that
25 characterization.
3296
1 The idea that the Fifth Amendment should be used
2 to pay for repairs from a one-time flooding event
3 stemming from a flood risk reduction project constructed
4 decades before Plaintiffs' acquisition, which resulted
5 in repairable damage, in a situation where the Corps had
6 no viable alternative ways to prevent flooding on
7 private properties, during the largest storm in the
8 recorded history of the United States, is an extreme
9 position, and it's one that should be rejected by the
10 Court.
11 So for those reasons, Your Honor, and for the
12 additional reasons set forth in our briefing,
13 Plaintiffs' claims should be rejected and judgment
14 entered in favor of the United States.
15 THE COURT: Thank you, Mr. Shapiro.
16 MR. SHAPIRO: Thank you, Your Honor.
17 THE COURT: Mr. Charest, a response or any reply?
18 MR. CHAREST: Yes, sir. Thank you.
19 We sort of ended that discussion where it began,
20 and it's just really telling. The Government keeps
21 saying the homes flooded because of the rain. The homes
22 flooded because of the dams, not because of the rain.
23 If the rain had fallen and the dams weren't there, that
24 water would have gone past these homes and done terrible
25 damage downstream. That's what would have happened but
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1 for the dams, and that's what the expert work showed.
2 So the notion that it's the rain's fault, not the dams'
3 fault, just does not lie. That's literally what the
4 experts proved.
5 First off, both of them agree that the maximum
6 level was only because of the dams. Ten out of the 13,
7 they both agree that the rain would have passed on by
8 these homes and done no harm whatsoever. So what
9 they're -- only three are in dispute, and factually, we
10 have the better of it by far, but the facts in this
11 case, the trial proved that the rain would have fallen
12 but for the dams and gone down and gone into downtown
13 Houston and Buffalo Bayou and into the ship channel.
14 The Government took the decision long ago to
15 protect those downstream areas by building the Addicks
16 and Barker Dams, and that is --
17 And, Matt, can you give me the slide from the
18 opening, Number 5, please?
19 The decision to do so was literally the exercise
20 of the governmental authority. It was the imposition of
21 the risk of and later -- later recognition of the risk
22 of damage -- well, I will just read it to you.
23 "The Takings Clause is 'designed to bar
24 Government from forcing some people alone'" -- that's
25 the upstream Plaintiffs here -- "'to bear the public
3298
1 burdens which, in all fairness and justice, should be
2 borne by the public as a whole.'"
3 So the Government's decision was to take that
4 potential damage for all downstream, put it all into a
5 tight package, and impose it directly on the upstream
6 Plaintiffs, and that -- and the Government can make that
7 decision. It's not for me to say that's right or wrong,
8 but it did that decision. It is the quintessential
9 exercise of a Fifth Amendment power.
10 But the corresponding portion of that is the
11 owners of those private properties are entitled to
12 compensation. It's as simple as that. This really is a
13 very simple case. Because the Government physically
14 takes possession of an interest in property for a public
15 purpose, it, therefore, has a categorical duty to
16 compensate the owner. That is the law.
17 So let's talk about the points that the
18 Government made today. First we heard from the -- an
19 old rendition of "the one-time flood hits here." The
20 Government's view on one-time flood literally runs
21 counter to Stockton and Quebedeaux, and they're focused
22 on periodicity, in particular. Quebedeaux already
23 addresses this.
24 THE COURT: Well, let's talk a little bit about
25 whether or not it was a one-time flood.
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3299
1 MR. CHAREST: Sure.
2 THE COURT: As the trial record was developed, it
3 appeared that the rainfall amounts in Harvey were
4 roughly or almost exactly equivalent to those that fell
5 in the Hearne Storm. Is that right or wrong?
6 MR. CHAREST: That is correct, sir. That is
7 exactly correct. The amount of rain that fell --
8 there's -- you know, over time and intensities and
9 locations, but fundamentally, in terms of the big
10 picture, the amount of rain that fell in Hearne is the
11 same amount of rain that fell over the watershed in
12 Harvey.
13 THE COURT: A different watershed.
14 MR. CHAREST: Well, it's a different watershed,
15 but the reason I say "over the watershed" with that
16 inflection is because we keep seeing this from the
17 Government, like the sort of periodicity games. They
18 say, well, Harvey was unprecedented. If you hear what
19 they say next, they say in -- you know, over the
20 watershed, unprecedented over the watershed. So they
21 want to zoom in to just the watershed and say that this
22 amount of rain has never happened before here. That is
23 a true statement.
24 But when you're talking about unprecedented or
25 impossible to occur over top of a watershed, you don't
3301
1 THE COURT: Yes.
2 MR. CHAREST: That's exactly right.
3 And so they keep -- they also started the
4 argument with we didn't -- the Corps didn't intend to
5 flood anybody. Well, that's like saying I intend to
6 hold the gun in my hand and I intend to pull the
7 trigger, but I don't intend to shoot you. I mean, they
8 intended to build the dam, there is no mistaking that;
9 they intended to retain water -- detain water with the
10 dam, no mistaking that; and they intended, if that level
11 of storm happened, to put stormwater onto private
12 properties.
13 They just were hoping maybe that the storm
14 wouldn't happen, but that's not -- that doesn't address
15 intent in terms of a legal question, and we have to
16 remember the testimony in the trial, sir, was that the
17 dams operated "as intended." And Mr. Long said that it
18 was by design and intent they imposed water on the
19 private property, all right? I think I have that quote
20 here. Where am I at? Well, anyway, that's what he
21 said.
22 And going further on than that, we talked about,
23 again, they built a dam to hold the 1899 Hearne Storm
24 but only purchased enough land to deal with the 1935
25 storm. The decision to only buy the 1935 storm level

3300 3302
1 look at just the watershed; you look at the surrounding 1 amount of land was not because of unlikelihood of the
2 region. In Harvey, the amount of rain that fell over 2 event happening but, rather, to save money. It was a
3 the watershed during Harvey was not an unprecedented 3 cost-benefit analysis that they looked at and said we
4 event. You have Hearne, you have Allison, you have 4 don't need to make that expenditure, and that's in Joint
5 Claudette, you have a whole bunch of ones that come in 5 Exhibit 5. It's the Definite Project Report.
6 very close, and you have the 1938 document, the Exhibit 6 They knew the Hearne Storm was out there, and
7 B document, going through the meteorology, explaining 7 they knew that the Hearne Storm should be used to plan
8 why it makes sense to understand that Hearne likely 8 for any storm event that happened in the Gulf Coast
9 could happen over the watershed. 9 area, but they decided to save money and not spend the
10 And by comparison, though, when they say Harvey 10 additional amount that was necessary to buy the land
11 was the largest rainfall ever, they're talking about 11 that would cover that reservoir.
12 areas not over the watershed. Now they zoom out and 12 THE COURT: Do you agree that the test on
13 say, oh, yeah, we had these massive amounts of rain. 13 foreseeability is reasonably foreseeable?
14 Also true, but not accurate, because it's true to say 30 14 MR. CHAREST: Yes, sir. Yes, sir.
15 miles or so the east, there was a massive amount of rain 15 THE COURT: Okay.
16 from Harvey, but that rainfall did not occur over the 16 MR. CHAREST: I would also -- I would
17 watershed. The amount that was over the watershed was 17 counterweight that with saying we can also get there by
18 the Hearne Storm level, not the massive amount, largest 18 proving intent, which we absolutely have, and I think
19 ever. 19 it's reasonably foreseeable anyway, but fair enough.
20 THE COURT: Well, if the Court recalls correctly, 20 And in this case, I would even say one more thing, it
21 the area to the east was close to the Gulf. 21 was foreseen, okay? They looked at the Hearne Storm and
22 MR. CHAREST: Yes, sir. 22 said this is the type of storm -- a very bad storm --
23 THE COURT: Right. I think I remember that. 23 but the type that we can anticipate would happen here,
24 MR. CHAREST: That's exactly right. If you look 24 all right?
25 at a map, it's that dark, dark blue on the right. 25 What else? We have -- again, we talked about the

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1 unprecedented nature and the sort of word games that are
2 going on there. On the foreseeability aspect, with
3 respect to, again, the Definite Project Report --
4 Matt, can you give me Joint Exhibit 5 at 17 of
5 the report? It's 129518 for the Bates.
6 This says, "The acquisition to this design
7 storm" -- they're calling the storm -- that's the Hearne
8 Storm -- "is considered advisable as a future
9 development of the entire area appears probable" --
10 talking about the development of the land and houses --
11 "and which can be expected to occur at least once in the
12 life of the project," which is a 50-year project
13 horizon. "Flooding damages may be expected to exceed
14 greatly the present value of the land."
15 Are you with me? All right.
16 So that shows that the engineers understood that
17 when this dam is filled by the design storm, the Hearne
18 Storm, which is reasonably expected to occur in the --
19 over this watershed, then you are going to fill it up to
20 the -- the reservoir will fill to that contour line.
21 And I'd refer the Court to -- I would refer the
22 Court to the Cotton Land Company case, and they're
23 talking about foreseeability, and this is what the Court
24 had to say about foreseeability: "If engineers had
25 studied the question in advance, they would, we suppose,
3304
1 have predicted what occurred."
2 These engineers did study in advance and predict
3 what ultimately did occur. They knew that dam would
4 hold this much water, it was built to hold this much
5 water, and when the storm that happened -- that they
6 knew would happen -- did happen, the intended event of
7 that happened, whether they wanted to flood people or
8 not.
9 I think we got -- I think the Court obtained some
10 concessions there that there was definitely a benefit to
11 the Government. I'm glad to hear that. We heard the --
12 oh, this notion that the damage was replaceable. Those
13 are -- okay, I'll start with legally. Legally, those
14 are old takings cases that aren't really what the law is
15 anymore about if it's replaceable it's not a taking, but
16 the notion that the Government can impose storm water on
17 a private property in a home that causes the
18 destruction -- a massive amount of destruction and just
19 walk away because it could be repaired, that's not --
20 that's not the law, and it's a good thing that's not the
21 law, because that's an inappropriate position to take, I
22 think, frankly.
23 Okay, the police power. I would first just point
24 out that the Court has dealt with the police power
25 argument on -- as a legal basis. Quoting from this
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3305
1 Court's motion to dismiss, "It was not that the
2 Government had to respond to Tropical Storm Harvey as an
3 emergency that necessitated the flooding of private land
4 but, rather, that the design of the dams and the
5 Government's procedures for operating them all put in
6 place well before Harvey arrived." And that's what I've
7 been saying before and would be consistent with what the
8 Court had previously ruled.
9 This is not an emergency like a fire or some sort
10 of liquid, you know -- well, you know, that's a wrong
11 description, but since it's a fluid, I will go with that
12 one -- something that didn't require real-time
13 consideration. Obviously, they are paying attention to
14 it real time, but it's not, like, sort of a decision
15 made at the edge of a knife, all right? This is a plan
16 that the Government had in place for 80 years which it
17 executed to a T.
18 And I'll remind the Court, the testimony was that
19 the dams operated as intended. They were proud of how
20 the dams operated. They reported and said, "Look at us,
21 we did a good job. We protected downtown Houston." And
22 that's fine. We do not take issue with that
23 governmental decision, but the imposition of that harm
24 on our Plaintiffs' properties is what deserves
25 compensation because of the -- because of the
3306
1 appropriation of their land for the benefit of others.
2 That's the fundamental nature behind the Fifth
3 Amendment.
4 The zero-sum game, look, before the Government
5 imposed itself on Buffalo Bayou, the water would have
6 flowed past these properties and gone downstream. It is
7 the one that changed "the game" -- to the extent you can
8 call it a game -- and imposed the risk upstream by
9 building the dams. And so the decision to lift the
10 gates or not lift the gates has never been part of our
11 case, is not and has not been. We have 25 miles of dam,
12 and the gates are some several hundred feet wide. They
13 couldn't have lifted the gates and avoid what they did
14 because the dams are so big and because the dams are
15 designed to hold the water.
16 And, again, there's talk -- you know, we saw one
17 email where they evaluated decisions, but they rejected
18 those other choices because the Water Control Manual was
19 in place. Richard Long testified that there was no
20 change from the Water Control Manual, and he had never
21 seen in his 40 years with the Corps a change from the
22 Water Control Manual.
23 And then this reference to, oh, well, they were
24 in sort of a soft emergency --
25 Can you put up Joint Exhibit 118, please, page
42 (Pages 3303 to 3306)
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3307
1 20?
2 This is a flow chart -- and just show me that
3 chart, if you would, please.
4 This flow chart talks about the different stages
5 of, you know, readiness and preparedness. The
6 Government never got past that stage two extended watch.
7 The testimony was from Mr. Thomas that stage one -- the
8 level one emergency was not specifically declared, and
9 the level two and level three were not declared.
10 Now, "not specifically declared," I don't know
11 exactly what that means, but the facts and the evidence
12 were that no special steps or no steps were taken
13 outside of the Water Control Manual. They did not
14 proceed under the Emergency Action Plan. So this notion
15 of, like, we don't know what to do and we're just caught
16 in a bind here, it's a bind that the Government put
17 themselves in, and it's not -- and it's a bind that went
18 exactly as the Government planned. Hold the water back,
19 protect downstream, and cross your fingers and hope
20 upstream survives, at best.
21 All right, now the outgrants -- well, I guess we
22 will talk about just generally -- sorry, just generally
23 causation. There's a couple points here I want to be
24 real clear on. I'm understanding the Government's
25 argument to be that the failure -- quote unquote -- as
3308
1 it were, to consider the outgrants mean that Dr. Bedient
2 somehow didn't return the land to a pregovernmental
3 action condition.
4 THE COURT: If he did that, it was in connection
5 with riverine flooding. That's what we're talking
6 about.
7 MR. CHAREST: Yes, sir, that's exactly right, and
8 I guess what we'd say there is, first off, Dr. Nairn
9 didn't do that either, by the way. Remember, Dr. Nairn
10 had the fully developed channels coming in to just a
11 wall. The notion that that's what the but for world
12 would look like is -- it's implausible, okay?
13 The more likely result of what the but for world
14 would look like was that if there was a channel on one
15 side of government-owned land -- and imagine the
16 Government didn't own it -- that channel probably would
17 continue onward, which is the world as Dr. Bedient saw
18 it, all right? So the but for world would have channels
19 that would drain outside of the neighborhoods, at a
20 minimum. So the use of that -- the artificially filling
21 in the channels by Dr. Nairn is unsupported and wrong,
22 frankly.
23 But I want to be real clear. I don't think the
24 Government's arguing -- and I think they waived it or
25 said they were not going to bring it during the pretrial
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1 conference -- that we should have evaluated the relative
2 benefits of these in terms of flow -- flood control
3 projects, because that's beyond even -- I don't think
4 they've even gone that far, but the facts are the
5 Government themselves, their witnesses have testified
6 that there is only one flood control project that
7 affects the -- that is an example of the Government
8 trying to affect the flood or not flooding within
9 upstream, Buffalo Bayou, and onward.
10 The Buffalo Bayou project is the only project
11 that affects flooding or not flooding for those people,
12 and the Government's witnesses said that the outgrants
13 were not -- I repeat, "not" -- part of the project.
14 That was Johnson-Muic's testimony under oath. She's the
15 land person, the person in charge of real estate. Those
16 are not part of the project.
17 And everybody said, you have Thomas and you have
18 Long both saying that the project was run, and, in fact,
19 did not confer any upstream flood mitigation benefits.
20 So the notion that these channels should be considered
21 as flood mitigation benefits, the facts don't support it
22 at all. And so our view is that the channelization or
23 not doesn't really come into play, into this discussion,
24 because what we're talking about is the federal action.
25 At the most you can say that the Federal
3310
1 Government was involved was the granting of an easement
2 to allow the trenching. The trenching, the digging, the
3 movement of the dirt that affects the flow of the water
4 was done by the local governments, not the Federal
5 Government. And so for that reason, I think the whole
6 outgrants and channelization argument is -- it's a non
7 sequitur, because we're supposed to be looking at the
8 federal project.
9 And to the extent you're talking about in terms
10 of causation, the way the world would have been but for
11 the project, if there was no project, these properties
12 would have been developed and the channels would
13 continue, and you heard that from Vogler, fundamentally.
14 People were going to find a way to develop this land,
15 and that's what Mr. Vogler said, and there was no
16 benefit for flood mitigation from those channels.
17 Now, as to the attempted defense of Dr. Nairn, I
18 was absolutely correct when I said that Dr. Nairn said
19 that he had a plus or minus one foot error rate on his
20 own model. It's in the record at 2685, line 12, until
21 2685, line 15, and I'll read the quote:
22 "QUESTION: In terms of error rate for your
23 model, sir, on average, you have plus or minus one foot,
24 sometimes better, sometimes not as good, correct?
25 "ANSWER: Correct."
43 (Pages 3307 to 3310)
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3311
1 That's what he said because that's what he said
2 in his deposition, and this is the one time when his
3 deposition and his trial testimony matched up.
4 That means from the jump, all of Dr. Nairn's
5 numbers are plus or minus a foot, okay? And then you
6 look at, as applied, how it looks to real world checks,
7 which is what we did, and -- you know, and you can -- we
8 can argue about the gauge, and I'm going to talk about
9 the gauge in a second, but you can't argue about the
10 pictures that show there's no flooding when Dr. Nairn
11 said they had been flooded. I mean, there's just no
12 comparison there.
13 And on the point of the gauge, Matt, can you
14 bring up Plaintiffs' 155?
15 We heard the Government talk about how the
16 record -- the evidence in the record was that the gauge
17 is malfunctioning and, you know, it had been reported as
18 being -- I don't know what he said, problematic or
19 whatever. Here's what the -- here's the report that was
20 taken a month after the storm, okay? So who knows what
21 happened in the month prior. The comment -- that's all
22 it was, was a comment -- was that there was vegetation
23 around the pipe, the crest stage gauge.
24 Importantly, you see the part where it says,
25 "Gauge" -- sorry, vent condition is the top, that's the
3312
1 top of the vent that's open. Intake condition, open.
2 Remember, the way these work is just as long as you have
3 flow at the bottom and flow at the top, the water level
4 will match the water level outside. So the report that
5 he's saying shows error I think just says there was
6 vegetation but that both the vent and the intake were
7 open.
8 I would have done a better job with this if I had
9 even understood that they thought this was a problem and
10 didn't learn about it on the stand, but we got them
11 anyway. So there it is. That gauge was working fine.
12 Just like every other gauge that disagreed with Nairn,
13 the gauge was right and Nairn was wrong.
14 THE COURT: Well, the vegetation, if it affected
15 the intake, would impede the flow to some extent, but it
16 wouldn't affect necessarily the level.
17 MR. CHAREST: Exactly, unless it was, like,
18 watertight and on top and bottom, like you can take a
19 straw and lift of the water out of a glass, but that's
20 not -- I don't think even Dr. Nairn thinks that that was
21 the case.
22 THE COURT: All right.
23 MR. CHAREST: As long as the vent and the intake
24 are open, which the record shows that they were, the
25 thing was working.
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3313
1 All right. The last point or the last topic was
2 Arkansas Game & Fish. The discussion was about
3 duration, and the argument was that, you know, the time
4 the people are out of their home had -- and I am going
5 to do my best to quote the other side here -- "nothing
6 to do with the government action." I would say that's
7 like aside from the -- you know, aside from that,
8 Mr. Lincoln, how was the play?
9 The water in their homes -- the water destroyed
10 their homes, and the notion that -- the fact that their
11 water -- their home was destroyed had nothing to do with
12 the government action I just can't get my head around.
13 Obviously the disruption of the home has everything to
14 do with the government action. It is the result of the
15 government action.
16 The -- I think I got taken to task for using the
17 word "imagine" what will happen when this Texas law
18 gets -- not just enacted, but, you know, people start
19 trying to sell their homes, and I guess the Court can
20 infer from the existence of that law what will happen.
21 It's an obvious result. People are going to sell their
22 homes, and they are going to have to say, "I'm in a
23 flood zone now," which when they bought it they didn't
24 know: I'm in an area that can be flooded because of the
25 Corps' action." That's absolutely a part of the
3314
1 substantiality here.
2 And the last topic is this reasonable
3 investment-backed expectation. We heard a list of
4 things that were supposed to put the public at general
5 on notice. Well, the Court rejected properly the expert
6 testimony, such as it was, of Mr. Galloway. The list of
7 things that he thought were relevant the Government just
8 pushed into their brief anyway, and we heard the list
9 was maps. I think they're talking about quad maps, but
10 I'm not really sure, so I guess that means everyone has
11 an obligation to go check their quad map to see if
12 you're living inside a government pool or not.
13 There was -- the next reference was public
14 discussions --
15 THE COURT: I will just say, when the Court
16 bought a property, a rural property, the Court did check
17 the quad map first.
18 MR. CHAREST: Well, after some years on the
19 Bench, I suspect you might, right?
20 THE COURT: Right.
21 MR. CHAREST: Then he's talking about public
22 meetings. I think the record was, what, 150 people, 180
23 people, whatever it was attended those meetings.
24 Discussions between the Corps and the developers,
25 I thought that was a doozy, as if the people that are
44 (Pages 3311 to 3314)
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3315 3317
1 buying these properties are getting told that by 1 games, but his argument that Hurricane Harvey was un --
2 anybody. 2 was not unprecedented is not evidence. What is is
3 The Fort Bend plats, we talked about that with 3 what's in the trial record, including the testimony of
4 Mr. Long, and I think the Court remembers how the plat 4 Plaintiffs' own expert, Dr. Bedient, who at page 2030
5 language themselves -- the plat language itself isn't 5 was asked:
6 even accurate, because it says you're adjacent to a 6 "QUESTION: Considered over the whole of Harris
7 place that can be subject to inundation, not in a place 7 County, you believe that Hurricane Harvey was likely the
8 that is subject to inundation. So if you're looking at 8 single largest storm in the history of the United
9 a plat that is, you know, what, four feet long, looking 9 States?"
10 at the 17th out of 30 entries on the commentary on the, 10 To which Dr. Bedient testified:
11 you know, the lower left of the plant and that you never 11 "ANSWER: I do."
12 see in a closing anyway, and you pull out your 12 That's part of the trial testimony about the
13 microscope and look at the language, you're still being 13 rarity of the Hurricane Harvey storm.
14 misled. 14 Mr. Charest then talked about replaceable, our
15 That's the quality of information the Government 15 argument that the damages that occurred here were all
16 is relying on. It's not enough, and you absolutely can 16 repairable. He -- as I understood his argument, he said
17 infer, Your Honor, from your experience, both in seeing 17 that, well, those cases that talk about repairable
18 these test case properties and being in the neighborhood 18 damages are old cases and no longer good law. I'm not
19 itself, that is not a place that you would expect to be 19 sure what he's talking about there, but what I'm talking
20 flooded. 20 about is comparing what happened here with the situation
21 That's all I have, sir. 21 that the Supreme Court considered in Arkansas Game &
22 THE COURT: Thank you, Mr. Charest. 22 Fish in 2013, the last time the Supreme Court issued a
23 Mr. Shapiro? 23 decision on this.
24 MR. SHAPIRO: Thank you, Your Honor. 24 In that case, the United States had made the
25 Mr. Charest started talking about the fact that 25 argument that the Commission's property had been subject

3316
1 this was -- the flooding occurred only because of the
2 government action, had nothing at all to do with the
3 storm. I'll just say, it seems like an obvious point
4 that but for Hurricane Harvey, no homes would be --
5 would have been impacted in the Harris County area, and
6 all of us would be sitting at home right now, not here
7 today in front of Your Honor.
8 Plaintiffs -- Mr. Charest started and sort of
9 finished on causation, and that's not surprising given
10 the case that they've presented, but that is not the
11 only defense that we've raised here. Causation is
12 certainly one of the issues that the Court needs to
13 grapple with here, but that is -- the fact that they may
14 be able to show causation with respect to ten of these
15 properties does not mean that the Government is,
16 therefore, automatically liable. Causation is one of
17 many issues that we've raised in our briefing.
18 Mr. Charest then quoted the Armstrong decision in
19 the context of Arkansas Game & Fish, to which we've
20 already responded. Mr. Charest then provided some
21 comments about how the downstream properties were saved
22 by the Government's action. Again, that is a good
23 summary of why the Police Power Doctrine applies here
24 and precludes recovery.
25 Mr. Charest then accused us of playing some word
3318
1 to flooding in the past and that the damage there was no
2 different. The Supreme Court -- excuse me, the Federal
3 Circuit disagreed with that and said the following on
4 page 1374:
5 "The trial Court found that the change in the
6 flooding pattern effected a wholesale change in the
7 ability of the management area to support timber
8 harvesting in a wildlife preserve of the sort that the
9 Commission had historically maintained."
10 Further, at page 1375:
11 "The Commission's property rights in this case as
12 depriving the Commission of 'the customary use of the
13 management area as a forest and wildlife preserve.'"
14 So Plaintiffs have consistently quoted part of
15 that quotation, the customary use, but what they fail to
16 recognize is what the Federal Circuit is talking about
17 here is the trial court's decision -- Your Honor's
18 decision in that case -- that "the repeated floodings
19 had deprived the Commission from being able to use the
20 management area as a forest and wildlife preserve."
21 That's a quote from the Supreme Court decision.
22 That is not comparable to the situation here.
23 The flooding that occurred certainly had impacts.
24 Plaintiffs have pulled them all out, pulled out all the
25 stops here today, and we've seen the pictures of the

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3319
1 damage that occurred to these homes, but the type of
2 damage that occurred in Arkansas Game & Fish, where
3 there was a wholesale change in the way that property
4 could be used, just does not exist here, and the Court
5 saw that for itself when it saw that the damages that
6 occurred have all been repaired or are capable of being
7 repaired. So this is a very different situation.
8 Mr. Charest then referred to Joint Exhibit 5. I
9 think he was pointing to paragraph -- excuse me, PDF
10 page 19 and 20, pointing to language about the -- within
11 the Definite Project Report, which he thought supported
12 his position, but what he was actually quoting was
13 related to the White Oak Reservoir, not the Addicks and
14 Barker Reservoir, and if the Court looks at that same
15 document, JX 5 at paragraph 54, which is PDF 29, that's
16 the language that refers to the Addicks and Barker
17 Reservoir, and it says that acquisition of -- up to the
18 1935 storm, plus three feet, was advisable.
19 Mr. Charest then turned back to the emergency
20 question, and I have just two responses to that,
21 quickly. First of all, that is not a requirement in
22 order to apply the police power or any other doctrine;
23 and secondly, Plaintiffs seem to be hung up on the fact
24 that only one emergency declaration was made by Colonel
25 Zetterstrom. The fact is that Colonel Zetterstrom did
3321
1 infer a fact that is often true after a hurricane
2 strikes, which is that very often the real estate market
3 bounces back, and people move on with their lives,
4 forgetting about the possibility of -- that their homes
5 might flood in the future. That, Your Honor, is why
6 subjective knowledge of flooding in the future is the
7 improper standard.
8 And I'll close with that, that the law is very
9 clear that reasonable investment-backed expectations
10 does not depend on a subjective standard. It depends on
11 an objective standard. And the record, again, is
12 replete, as we discussed in our post-trial brief about
13 the outreach efforts and the public documents that were
14 in the public sphere when each of these Plaintiffs
15 bought these properties, that upstream flooding was
16 possible.
17 So with that, Your Honor, we would again request
18 that the Court reject Plaintiffs' claims and enter
19 judgment in favor of the United States.
20 THE COURT: All right. Thank you, Mr. Shapiro.
21 Throughout this case, the Court has been
22 impressed with the ability and perspicacity, if I can
23 use that word, of counsel in anticipating a set of
24 issues and developing them, not only in the briefing
25 pretrial but in the trial preparation and actual conduct

3320 3322
1 issue an emergency declaration, and the Corps did, in 1 of the trial and in the post-trial briefing.
2 fact, follow level one and level two emergency 2 I hope never again to see briefs in a range of
3 procedures as set forth in the Emergency Action Plan. 3 the length of these. I hope it's a one-time event. My
4 There was testimony at trial on why that was, and 4 eyesight will just not stand for anything more than
5 Mr. Thomas explained that no further emergency 5 this, but I do thank counsel for the extensive and
6 declaration was needed, and that's in the trial record. 6 capable presentation of the case. With that, the case
7 Mr. Charest then turned to the error rate issue 7 is submitted. Thank you very much.
8 and claimed that what he said about a one-foot error in 8 (Whereupon, at 3:01 p.m., the proceedings were
9 Dr. Nairn's report was accurate. We talked about this 9 concluded.)
10 issue in our post-trial brief at page 68 and 69, and 10
11 what we say there is that Dr. Nairn's model does 11
12 overpredict in one area, for one of the runs, a one-foot 12
13 error, but Plaintiffs' assumption that that one-foot 13
14 error, therefore, propagates through all of the other 14
15 hypotheticals is just simply an error, and we talk about 15
16 this at page 69, where Dr. Nairn testified that his 16
17 model prediction in the no-project run, at that -- the 17
18 area being discussed and the point in time was within 18
19 0.36 feet. And that's page 2769 to 2770 in the trial 19
20 record. 20
21 And then, finally, Mr. Charest returned to his 21
22 word, "imagine" what the loss in property value might be 22
23 as a result of this Texas statute which wasn't part of 23
24 the trial record. He said, well, if you don't imagine, 24
25 maybe infer. Well, I mean, we can ask the Court to 25

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3323
1 CERTIFICATE OF TRANSCRIBER
2
3
4 I, Susanne Bergling, court-approved transcriber,
5 certify that the foregoing is a correct transcription
6 from the official digital sound recording of the
7 proceedings in the above-titled matter.
8
9
10
11 DATED: 09/18/2019 s/Susanne Bergling
12 SUSANNE BERGLING, RMR-CRR-CLR
13
14
15
16
17
18
19
20
21
22
23
24
25

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[3324]

A acquire 3150:15 3264:8 3271:22 3298:23 3188:13,14 3189:6

a.m 3139:14 3160:22 3283:25 3321:25 addressing 3290:20 3189:25,25
ability 3172:2 acquired 3252:1 added 3162:17 adjacent 3208:4 3224:21 3225:12
3184:1 3193:3 3263:2 3236:21 3245:14 3315:6 airport's 3188:22
3264:1 3318:7 acquiring 3155:18 3245:15 3249:7 adjustments allegation 3287:3
3321:22 3263:19 3256:6 3291:12 alleged 3264:15
able 3201:11 acquisition 3151:5 Addicks 3139:3 admit 3156:12 Allison 3158:6
3212:14 3217:19 3151:13 3163:3,4 3140:3 3145:7 3240:9 3169:14 3178:18
3227:17,19 3228:1 3163:4,5 3296:4 3149:1,12 3154:2 admits 3241:6,7 3251:3 3300:4
3228:8 3316:14 3303:6 3319:17 3154:24 3156:15 admitted 3191:11 allow 3150:16
3318:19 acquisitions 3293:6 3160:16,18 3162:1 3237:15 3241:15 3192:12 3261:22
above-titled 3323:7 acres 3203:8,9,10,18 3162:4,11,18 3262:8 3278:20 3281:12,22
abruptly 3198:20 3203:19,24 3163:17 3166:8 adoption 3246:6,8 3286:19 3293:17
absence 3281:5 act 3231:14 3246:20 3178:12 3182:10 advance 3303:25 3310:2
absolutely 3151:17 acted 3251:22 3192:14,20 3203:8 3304:2 allowed 3150:4
3153:19 3162:9,14 3278:23 3210:17 3222:7 advancing 3189:23 3196:17 3198:22
3163:12 3170:19 acting 3147:2 3224:8,23 3225:6 advisable 3303:8 3226:24
3171:1 3178:25 3268:5 3270:18 3238:12 3239:21 3319:18 alluded 3238:22
3179:1 3205:2 action 3160:3 3239:25 3255:21 aeasterby@willia... alone' 3297:24
3207:2 3208:25 3168:7,19,22 3257:7 3261:23 3141:8 alternative 3263:7
3302:18 3310:18 3171:13,19,21,22 3262:2 3264:22 AECOM 3190:11 3274:6 3286:23
3313:25 3315:16 3180:22 3202:23 3276:10,16 affect 3155:5 3157:4 3287:8,11 3296:6
accept 3161:5 3243:9 3245:1 3295:20 3297:15 3162:6 3172:20 amazing 3169:25
acceptance 3288:19 3246:12,13,25 3319:13,16 3309:8 3312:16 Amendment
accepted 3155:20 3247:1 3258:7 addition 3153:19 afford 3215:5,5 3231:12 3232:16
3160:16 3260:24 3263:7 3205:5 3236:19 afoul 3295:24 3232:20 3266:10
accepting 3160:24 3264:14 3265:22 3245:12 3256:12 aftermath 3213:10 3279:7 3296:1
access 3211:11 3268:10,15,17 3266:1 3272:23 AFTERNOON 3298:9 3306:3
3218:9 3219:3 3270:16 3275:25 3273:10 3280:1 amenities 3215:12
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accounts 3186:16 3254:22 3267:24 3170:20,23,24 3302:12 3299:7,10,11,22
accrued 3289:18 3274:6 3275:14 3225:24 3239:19 agreed 3147:15 3300:2,15,17,18
accumulate 3228:7 3278:25 3239:21,22 3160:13 3239:3 3302:1,10 3304:18
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3320:9 actual 3161:9 3289:2,2 3301:14 ahead 3146:22 analyses 3233:24
accused 3316:25 3165:15 3182:13 addressed 3222:9 3150:1 3222:25 3240:12 3283:14
achieve 3165:20 3192:5,6 3203:17 3224:2 3225:9 air 3272:25 analysis 3170:5
achieved 3173:11 3235:2 3240:18 addresses 3221:10 airport 3188:8,9,10 3180:5 3209:1

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3325]

3230:24 3232:8,10 3234:25 3239:7 3163:23 3165:6 3252:20 3258:12 3155:24 3195:4
3233:12 3234:2 3240:10 3251:4 3166:20 3169:15 3259:17 3266:1,23 3200:23 3223:25
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appear 3230:9 3158:16 3159:1,3 3249:11,13 asked 3152:2 3225:10 3226:18

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3326]

3274:3 3275:21 3207:20 3211:8 3239:25 3261:24 3190:10,24 benefits 3263:4

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3159:17 3160:12 3163:17 3166:8 3278:16 3297:25 3263:1,11,13 3253:12 3255:22
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3168:10,11 3176:6 3181:22 3182:6,14 bed 3214:9 3269:13 3270:4,8 bits 3194:16
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3201:22 3202:8 3238:12 3239:21 3187:7,9,14 benefiting 3269:10 3201:8,9 3300:25
3205:10,11,21

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3327]

board 3215:16 3286:11 3287:2 buildup 3251:4 cabinets 3210:20 3241:6 3242:15
boat 3212:16 3214:5 3289:1,6 3293:5 built 3149:1 3151:6 3212:23 3215:21 3245:1 3247:10
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3279:6 3283:15 3306:9 C 3232:16 3236:21 3259:24 3304:17
C 3145:1

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3328]

ceiling 3209:2 3230:5 3240:7 3196:9 3198:9,17 checks 3311:6 3284:15 3285:15
central 3148:20 3281:15 3286:12 3199:1,8,15 cherry-picked 3320:8
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certainly 3156:8 character 3172:25 3228:16 3229:1,2 3218:18 3219:20 3260:22 3267:1
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changed 3221:3 3146:13,14,22,23 3315:22,25 3316:8 circumstances 3308:23 3321:9
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3306:7 3151:15 3152:11 Charest's 3234:13 cite 3259:12,13 CLERK 3280:18
changes 3247:15 3153:9 3154:12,18 3239:7 3246:8,14 3260:8 3279:5 Cleveland 3215:7
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3198:23 3287:17 3167:14 3169:20 3140:17 3145:13 claim 3203:15 3179:6 3200:10
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3308:16 3172:10 3173:3,6 3140:21 3233:5 3243:11 3295:16 3300:6,21
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3198:12 3309:22 3179:25 3180:9,12 3183:14 3185:14 3252:19 3259:8 closed 3202:1
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channels 3161:18 3184:13,16 3186:9 chase 3158:19 3266:9,11,16 closing 3144:3
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3201:4 3202:1 3192:2 3195:7 3314:11,16 claimed 3266:10 3239:7 3244:20

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3329]

3245:13 3265:12 3318:19 conceded 3180:25 conduits 3236:20 considers 3248:10

3282:13 3283:19 Commission's 3188:6 3244:8 3249:7 3281:14
3284:8 3292:17 3288:17 3317:25 conceivable 3166:6 confer 3309:19 consistent 3235:6
3315:12 3318:11 3166:11 conference 3309:1 3251:8 3287:18
closings 3147:1 communities concept 3148:24 conferring 3198:25 3305:7
clubhouse 3215:13 3174:10 3150:7 3152:25 confirmed 3149:7 consistently 3171:25
3215:19,19 3216:4 community 3212:8 3155:17 3160:13 3186:10 3190:10 3262:1 3318:14
Coast 3302:8 3215:10,12 3216:3 3161:7 3164:18 3190:17 3202:3 constitute 3260:13
code 3183:13 3218:10 3226:6 3166:3 3172:14 confirming 3190:23 3261:3,4
3192:11 3207:18 3269:13 3270:8 3179:14 conflating 3251:21 constitutes 3268:15
colleague 3145:18 companies 3216:8 conceptually 3156:8 conflict 3194:12 constitutional
colleagues 3145:10 3216:10 3158:14,15 3257:20 3259:6 3268:8
3145:22 Company 3261:1,4 3242:18 conflicting 3155:2 3275:2
Colonel 3275:20 3303:22 concern 3197:7 3257:7 constraints 3149:18
3276:11 3319:24 comparable concerned 3199:11 conflicts 3241:20 3270:7
3319:25 3262:11 3318:22 3216:11 3221:20 3242:10 construct 3156:14
color 3183:12 compare 3281:4 concessions 3304:10 confused 3217:11 3240:2
combination compared 3238:24 conclude 3196:24 Congress 3149:25 constructed 3178:24
3199:21 3248:24 3240:4 3202:7 3233:10 3240:1 3275:13 3240:5 3243:21
come 3158:16 comparing 3317:20 3259:9 congressional 3244:8 3253:20
3169:8 3184:7 comparison 3300:10 concluded 3179:24 3148:25 3149:24 3254:9 3261:21
3185:5,14,14 3311:12 3183:17 3187:19 3150:5 3263:17 3281:8
3186:3 3189:21 compelling 3291:9 3190:1 3206:13 congruent 3233:18 3296:3
3194:8 3197:11 compensable 3268:4 3214:23 3223:13 3233:20,22 construction
3198:23 3247:6 3270:17 3288:4 3322:9 connected 3167:19 3160:15 3161:15
3279:12 3300:5 compensate 3298:16 concludes 3232:15 connection 3161:14 3165:22 3171:6
3309:23 compensated 3232:20 3225:14 3308:4 3179:2 3234:21
comes 3159:18 3203:14 conclusion 3158:20 CONNER 3140:16 3243:8,11,24,25
3164:19 3168:11 compensation 3158:24 3178:15 consequence 3244:21,25
3182:4 3186:24,25 3298:12 3305:25 3262:6 3283:10 3159:15,16 3245:11 3287:16
3200:10 complain 3246:15 conclusions 3201:16 3164:13 3289:13
coming 3185:8 3263:16 3201:17 3291:14 consequential contaminated
3189:19 3192:24 complaining 3243:8 Concord 3142:8 3265:20 3211:20 3219:11
3193:21 3194:5 complaint 3243:6,7 concrete 3255:20 consider 3204:4 contentions 3232:24
3195:10 3197:11 3264:15 3265:18 3256:4,6,9,12,14 3252:24 3273:23 contest 3164:7
3199:2,22 3201:25 complete 3276:25 condemned 3164:21 3274:19 3281:25 context 3249:17
3308:10 3290:9 condition 3186:12 3289:25 3308:1 3316:19
commend 3148:7 completed 3161:20 3210:16 3212:2 consideration continue 3280:10
comment 3311:21 3223:21 3243:23 3222:22 3263:17 3162:14 3184:6 3308:17 3310:13
3311:22 3243:24 3265:17 3308:3 3274:16 3293:4 CONTINUED
commentary completely 3168:2 3311:25 3312:1 3305:13 3141:1 3142:1
3315:10 3169:20 3211:23 conditions 3251:4 considerations 3143:1
comments 3236:18 3225:13 3233:18 3270:7 3289:21 3249:1 continues 3222:24
3246:8,15 3275:8 complex 3168:18 condo 3210:18 considered 3157:22 contour 3155:23
3277:24 3289:4 3216:4 condominiums 3159:2 3236:8,25 3156:3 3159:19
3316:21 component 3170:15 3210:8 3244:2 3246:17 3165:17 3303:20
Commission 3230:8 concede 3255:1 conduct 3321:25 3247:21 3303:8 contours 3195:17
3231:15 3318:9,12 3258:8 conducted 3284:13 3309:20 3317:6,21 contractors 3210:19

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3330]

contradiction 3158:3,11 3159:4 3191:1 3222:8 3226:20 3190:4,5,7,8

3249:22 3251:14 3159:25 3161:5 correct 3147:4,21 3238:2,3,5,6 3191:25 3196:9,22
3252:3 3162:17,22 3153:8 3154:17 3242:3 3250:11 3196:24 3198:7,14
contradictory 3170:10,17,23,24 3156:19 3157:12 3260:3 3261:1 3199:6,11,11,16
3249:14,21 3171:4,9 3177:6 3157:13 3160:19 3278:22 3294:13 3200:14 3201:14
contradicts 3272:7 3178:3,21 3179:9 3162:9,20 3163:2 3294:14,18 3316:5 3202:6,11,12,19
contrary 3234:17 3179:13 3187:10 3188:8 3192:2,2 3317:7 3204:20 3205:12
3238:8 3272:3 3187:11 3199:23 3194:2,6,13,14 County's 3278:19 3206:4 3207:16
3273:22 3207:14 3208:7,10 3195:12 3198:8 couple 3147:3 3209:4,8,12
contrast 3157:23 3222:4 3225:1 3199:15 3243:17 3161:11 3169:13 3212:6,7 3213:3
3183:24 3190:25 3234:4,10,12,15 3250:3 3255:10,12 3169:17 3171:7 3216:1,19 3220:2
control 3145:8 3234:25 3235:10 3255:14 3270:2 3242:25 3243:3,15 3220:10,16
3149:9,11 3157:12 3235:19,23 3236:1 3271:7,20 3284:5 3249:13 3283:18 3221:15 3225:20
3157:14,19 3159:3 3236:6,22 3237:4 3284:21 3285:2,13 3307:23 3225:22 3228:13
3159:23 3238:3 3237:13,16 3292:15 3299:6,7 course 3159:6 3228:18,20,21
3239:23 3264:18 3238:10 3239:1,16 3310:18,24,25 3180:19 3182:13 3229:4,6,8,9,13,14
3266:7 3272:3,10 3240:2,16,19 3323:5 3196:17 3237:18 3231:3,4,7,25
3272:24 3273:2,10 3241:6,16,18,23 correcting 3190:4,8 3279:17 3232:2,4,4,15,17
3286:13 3288:19 3243:21,21,22,25 correction 3195:14 courses 3181:23 3232:19,23 3233:3
3294:14,19 3244:7,9,15,22 3285:14,19 court 3139:1 3145:3 3233:7,7,9,13,13
3306:18,20,22 3245:6,21 3246:16 correctly 3156:17 3145:6,6,20 3233:14,22,25
3307:13 3309:2,6 3247:19,19,22 3162:17 3268:22 3146:3,10,14,16 3234:18 3235:15
controlled 3208:6 3248:7,20 3249:3 3282:13 3287:6 3146:16,24 3147:2 3236:5 3237:6
3289:14 3249:6,7 3250:16 3300:20 3147:2,6,10,12,12 3238:21 3241:7
convenient 3267:10 3251:13 3253:17 corresponding 3147:23 3148:7,8 3242:17 3243:13
convergence 3253:22 3254:2,3 3298:10 3148:9,14 3149:10 3243:19,21
3198:11 3254:3,6,12 corridor 3204:6 3150:20,22,23 3246:24 3247:2,8
converted 3161:21 3256:6 3258:4 3239:23 3241:2 3151:10,14 3152:2 3247:10,19,24
convey 3183:23 3261:21 3263:19 cost-benefit 3302:3 3152:10 3153:1 3248:5,15,23
conveyance 3176:4 3268:21 3269:10 Cotton 3303:22 3154:11,13,20 3249:1,24 3250:6
3183:19,21 3186:4 3271:9,13,25 counsel 3143:4 3155:15 3156:6,16 3250:12,20,23
conveyed 3183:6 3272:2,9,12,20 3145:5,10,22 3156:16 3157:10 3251:2 3252:12,13
3184:25 3185:4,10 3273:5,7,11,18,23 3146:8 3198:25 3161:8,24 3162:24 3252:14,24 3253:5
3190:19 3274:5,12,13,17 3235:8 3277:12 3163:20 3167:11 3253:9,16 3255:7
convince 3201:14 3274:19 3275:14 3280:5 3282:13 3169:10 3170:16 3255:13,15,18,22
cooking 3211:25 3275:23 3276:5,16 3289:4 3321:23 3170:20,24 3172:4 3255:24 3256:17
Coordination 3277:19 3278:3,8 3322:5 3172:22 3173:5,10 3256:20 3257:2,6
3276:17 3278:23 3281:11 counter 3207:5 3173:22 3175:9,10 3257:10,13,17,23
copied 3274:3 3281:15 3282:5 3298:21 3175:13 3176:13 3258:1,8,13,21,23
core 3148:20 3286:7,19 3296:5 counter-attacks 3176:22 3177:1 3259:9 3260:16,20
cork 3194:16 3301:4 3306:21 3165:9 3178:2 3180:3,6 3260:21,22 3261:1
corner 3155:4 3314:24 3320:1 counterfactually 3180:10,19,23 3262:5 3265:22,23
Corporation's Corps' 3161:2 3201:5 3181:21 3182:1,7 3266:11,11,16,24
3224:22 3178:22,23 3180:1 counterweight 3182:11,15,17 3267:3,9,17,20
Corps 3143:3 3267:24 3269:20 3302:17 3183:2,3 3184:8 3268:9,12 3269:9
3146:7 3148:25 3278:25 3288:18 country 3192:17 3184:14 3186:8,14 3269:19 3270:3,11
3149:23 3150:2,13 3294:10 3313:25 County 3157:12,14 3188:7,7,25 3270:20 3271:15
3154:8 3157:20 Corps-developed 3157:19 3213:12 3189:3,4,8,11 3271:19 3275:1

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3331]

3276:8,10 3277:2 created 3235:21 D.C 3139:12 3153:3,5,6 3220:14,23

3277:16,22 3278:2 3245:8 3254:24 3142:18 3160:16 3161:9,16 3222:14 3251:3
3278:6,12 3279:5 3272:17 Dallas 3140:11 3161:21,23 3282:15 3283:3
3279:10,11,16,18 credit 3269:10 3218:19 3162:13 3163:13 day-one 3156:1
3280:3,9,13,16,19 creek 3162:1,3,9,10 dam 3148:23,24 3163:13,16,18,21 3244:22
3280:23 3281:3 3162:16 3163:6 3150:8,10,13 3165:20 3166:8 days 3205:2 3210:14
3286:2 3287:22 3182:8,9 3189:3,5 3151:3,4,6,7,10,15 3171:10,23 3175:3 3211:15 3213:5
3288:4,8,13,14,21 3189:6,18 3190:16 3151:16,21 3178:24 3187:23 3214:11,12,15,15
3288:22,22 3190:17,21,21 3152:20 3153:12 3201:22 3202:9 3217:23 3219:16
3289:24 3291:6,6 3193:24 3197:6,11 3154:17 3155:7,11 3203:2 3204:15 3221:1 3225:16
3291:16,20,20 3197:12 3198:5,7 3155:14,19,22,25 3210:6 3239:21 3264:4,9 3265:8
3292:2,11,11 3198:10,12,18,18 3156:4 3159:17 3248:20 3250:17 dcharest@burnsc...
3293:4,16 3295:10 3199:25 3201:17 3160:23 3161:5,7 3254:12 3255:10 3140:13
3295:14,21 3201:20 3220:14 3161:15 3162:18 3255:11 3261:24 dead 3215:2
3296:10,15,17 3220:19 3223:3 3163:10 3164:2,19 3268:24 3270:5 deal 3183:22,22
3298:24 3299:2,13 3225:7,8 3165:2,16,17,23 3271:15 3296:22 3206:5 3213:17
3300:20,20,23 Cress 3259:13 3165:24 3166:22 3296:23 3297:1,6 3285:9 3291:4,12
3301:1 3302:12,15 3260:20 3166:22 3167:5 3297:12,16 3301:24
3303:21,22,23 crest 3285:11 3168:10 3170:8 3301:17 3305:4,19 dealing 3216:5
3304:9,24 3305:8 3311:23 3187:2 3200:16,17 3305:20 3306:9,14 3232:23 3233:1
3305:18 3308:4 criteria 3151:11 3200:21 3237:8 3306:14 dealt 3288:11
3312:14,22 3158:21 3209:7 3253:23,25 3254:4 dams' 3297:2 3304:24
3313:19 3314:5,15 3274:21 3255:21 3256:24 danger 3172:16 debris 3213:4
3314:15,16,20 critical 3177:25 3257:1 3261:20,21 dangerous 3272:18 decades 3169:17
3315:4,22 3316:12 critically 3244:6 3261:25 3262:6 Daniel 3140:6 3236:10 3289:13
3317:21,22 3318:2 cross 3235:8 3275:21 3276:20 3145:12 3294:8 3296:4
3318:5,21 3319:4 3307:19 3281:10 3301:8,10 dark 3300:25,25 decades-long
3319:14 3320:25 cross-country 3301:23 3303:17 data 3177:16 3188:4 3246:11
3321:18,20,21 3240:7 3304:3 3306:11 3191:1 3192:6,18 December 3220:4
court's 3166:24 Cruz 3142:14 damage 3203:25 3192:19 3242:10 decide 3150:18
3173:16 3176:6 3146:4,5 3204:4,5 3205:24 3284:15,20,21 3273:24
3180:14 3207:11 cubic 3152:18 3206:7 3219:16,19 3285:1,5,6 decided 3171:16
3230:19 3247:6,17 3220:19 3220:25 3222:17 3291:10 3293:20 3246:20 3302:9
3250:16 3277:24 cul-de-sac 3212:8 3224:1,19 3264:7 date 3192:5 deciding 3152:17
3305:1 3318:17 3220:8 3265:9,10 3269:12 DATED 3323:11 3275:3
court-approved curb 3186:3 3213:4 3270:5 3282:9 dates 3247:1 decimal 3191:9
3323:4 3217:6 3296:5,25 3297:22 daughter 3212:9 decision 3151:13,19
courtroom 3139:9 cushion 3214:19 3298:4 3304:12 3226:2,22 3227:25 3152:6 3154:4,8
3148:11,15 3207:6 customary 3205:4 3318:1 3319:1,2 3228:4,6,9 3160:21 3164:14
courts 3139:10 3210:3 3219:17 damaged 3216:2 daughter-in- 3170:10 3237:8
3215:12 3216:1 3318:12,15 3265:13 3279:3 3224:14 3246:20 3247:7
3268:13 cut 3158:19 damages 3203:21 Dawn 3143:15 3248:20 3272:3
cover 3190:12 cutting 3150:1 3204:3,9 3267:25 3146:4 3281:18 3273:8,16 3274:25
3302:11 Cypress 3162:1,3,9 3292:12 3303:13 day 3148:3 3152:22 3275:10,11 3291:7
covered 3215:25 3162:10,16 3163:6 3317:15,18 3319:5 3169:14 3188:2 3295:22 3297:14
3219:8 3227:2 damaging 3149:16 3199:14,16,17,21 3297:19 3298:3,7
3275:21 D damn 3160:25 3214:2 3217:8 3298:8 3301:25
cramped 3148:16 D 3142:15 3144:1 dams 3149:1,6 3218:23 3220:10 3305:14,23 3306:9
3145:1

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3332]

3316:18 3317:23 deluge 3295:23 3203:12 3237:11 develop 3310:14 3256:13 3310:3
3318:17,18,21 demolished 3212:25 3237:12,17 developed 3163:11 dirty 3208:22
decision-makers 3215:22 3240:21 3241:9,16 3178:3 3276:7 disabled 3213:14
3240:14 demonstrate 3243:14 3244:20 3299:2 3308:10 disagree 3244:23
decision-making 3263:23 3247:11 3248:17 3310:12 3266:23
3273:1,13 demonstrated 3248:22 3301:18 developers 3281:12 disagreed 3312:12
decisions 3273:3 3209:23 3285:18 3303:6,17 3305:4 3294:11 3314:24 3318:3
3275:13 3290:14 3294:15 designated 3208:11 developing 3321:24 disagrees 3233:13
3290:15 3306:17 demonstrates designed 3150:9,13 development 3178:9 disclose 3207:13
declaration 3241:5 3249:4 3155:8,23 3156:1 3287:1 3303:9,10 3217:25 3218:3
3242:5 3319:24 Department 3159:12,17,18 deviations 3288:18 disclosure 3207:19
3320:1,6 3141:18 3142:3,11 3161:16 3163:17 dialogue 3196:8 3207:22 3208:18
declared 3276:12,14 3145:25 3146:1 3165:17 3168:10 died 3214:3 3225:3 3292:23
3307:8,9,10 3275:11 3175:11 3179:18 Diehl 3207:6,9 disclosures 3207:25
decreasing 3272:14 depend 3153:11 3179:20 3183:3 difference 3162:19 3292:9
deed-restricted 3254:17 3321:10 3186:4 3231:11 3169:11 3180:7 discretion 3150:3
3212:8 3218:10 depends 3156:7 3240:5 3243:14 3186:14 3195:11 3273:19
3226:5 3290:10,14 3294:3 3270:6 3277:3 3231:5,7 3242:16 discretionary
Defendant 3141:17 3321:10 3297:23 3306:15 different 3152:12 3273:12,16
3143:15 3166:7 depicted 3224:11 designing 3159:3 3157:2 3158:21,21 discuss 3219:24
Defendant's deposition 3186:17 designs 3208:8 3167:12,22 3171:7 3229:25 3248:18
3166:11 3238:6 3311:2,3 despite 3234:13,23 3172:11 3173:2 3288:25
3281:18 depositions 3186:2 3239:6 3259:7 3175:24 3182:19 discussed 3209:22
defense 3172:17 depreciation 3206:9 3271:21 3214:7 3220:22 3241:4 3248:2
3176:19 3310:17 deprived 3205:3 destroy 3270:16 3230:24 3232:8,13 3266:4 3274:10
3316:11 3210:3,24 3219:17 destroyed 3205:4 3237:5 3239:22 3279:6 3283:15
defer 3147:2,6 3318:19 3224:5,17 3313:9 3240:1,3,6 3290:25 3293:4
defines 3208:3 depriving 3318:12 3313:11 3249:16 3250:1,2 3294:17,19,20,22
Definite 3149:3 depth 3197:25 destruction 3268:3 3250:4,5,5 3252:2 3320:18 3321:12
3152:3 3170:6 3225:11 3240:22 3275:3 3304:18,18 3253:17 3259:15 discusses 3295:12
3235:14 3244:4 derive 3291:4 detail 3182:17 3261:20 3283:5 discussing 3274:5
3302:5 3303:3 describe 3263:3 3286:10 3284:21,22 discussion 3179:7
3319:11 3276:4 3282:12 detailed 3201:15 3299:13,14 3307:4 3188:13 3202:10
definitely 3153:9 described 3167:18 details 3157:6 3318:2 3319:7 3204:13 3225:3
3172:10 3304:10 3213:10 3219:5 3177:16 3292:25 differentiate 3230:18 3235:7
definition 3269:5,6 3221:5 detain 3154:6 3198:16 3253:11 3276:25
3270:12 describes 3263:5 3301:9 differently 3233:10 3294:10 3296:19
definitively 3240:16 description 3292:22 detained 3187:2 digging 3310:2 3309:23 3313:2
deflect 3154:5 3305:11 3204:25 digital 3323:6 discussions 3225:1
defy 3174:11 3196:1 deserves 3305:24 detention 3169:3 diminution 3218:5 3274:10 3294:8
degree 3191:9 design 3149:21 determine 3158:23 dire 3191:11 3314:14,24
dehumidifiers 3150:7,14,22 3177:17 3258:21 direct 3168:6 dismiss 3266:11
3219:13 3151:3,15,16,16 3268:15 3220:16 3230:14 3305:1
delay 3208:11 3151:25 3152:23 determined 3158:22 3242:14 3258:6 displacement
3229:11 3155:21 3156:25 3170:12 3182:21 directives 3275:14 3223:23
delayed 3228:24 3157:8,20 3160:9 3192:5 3271:25 directly 3291:24 displayed 3212:18
3264:21 3161:4 3164:18 determining 3298:5 3213:25 3218:22
deleted 3243:16 3165:23 3179:14 3292:18 dirt 3219:8 3256:11 3221:12 3222:16

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3333]

disposition 3147:6 3287:6,19 3321:13 3201:25 3202:3 3227:10 3206:17 3207:2

dispute 3181:19 dog 3226:23 3207:5 3209:22 due 3181:1,9 3208:19,24,24
3209:17,19,25 dogs 3214:3,3 3238:9,20 3241:21 3210:16 3248:8 3260:25 3278:25
3287:25 3290:1 doing 3148:19 3241:23 3251:8,12 dug 3256:6,8 effected 3318:6
3297:9 3158:11 3193:13 3260:5 3271:5,6 Duncan 3142:13 effective 3153:4
disputed 3285:6 3201:19 3271:21 3272:9 3146:6 3203:12 3207:12
3295:17 dollars 3269:24 3282:4,24 3283:2 duration 3205:8,22 effectively 3152:21
disruption 3313:13 door 3213:24 3283:2,10,15,16 3265:5 3288:3 3155:19 3161:17
distinction 3230:10 3218:21 3222:13 3283:22,24 3284:3 3289:24 3290:2,18 3164:20 3166:5
3232:6 3233:15 doors 3210:21 3284:5,11 3285:1 3290:21 3313:3 3168:3 3175:2
3268:7 doozy 3314:25 3285:4,21,24,25 duty 3213:14 3193:3 3197:13
distinctly 3180:18 dot 3197:20 3198:21 3293:17 3308:1,8 3298:15 3199:1 3277:25
distinguish 3231:11 3199:8,10 3308:9,17,21 DX 3236:12 3278:20 3282:9
distinguishing dots 3167:19 3310:17,18 3311:4 3287:10,12,12,15 effects 3168:8
3231:23 3204:15 3311:10 3312:20 effort 3241:2
district 3143:4 doubt 3169:17 3317:4,10 3320:9 E 3245:11 3284:5
3157:12,14,19 downstairs 3210:12 3320:11,16 E 3143:5 3144:1 efforts 3219:12
3211:3 3218:9 downstream 3149:6 drain 3213:6 3287:4 3145:1,1 3284:19 3321:13
3238:3 3240:13 3149:17,21 3308:19 earlier 3165:5 eight 3210:13
3294:19 3166:19 3169:4 drainage 3175:21 3197:9 3199:14 3211:14 3215:24
District's 3294:14 3181:7,8 3195:17 3183:18 3185:10 3290:2 3216:4 3221:1
ditches 3175:22 3201:3 3203:22,25 3186:12 3240:7 early 3193:19 3224:17 3225:11
diversion 3182:5 3204:14 3234:9,11 draining 3240:4 3226:18 3239:24 3226:2 3229:7
DIVISION 3141:19 3263:2 3268:25 3287:10 3285:8,8 3294:13 3262:10
3142:4,12 3269:4,11 3270:1 drainings 3184:1 easement 3166:13 eight-minute
doc 3156:21 3271:11,17 3272:1 drains 3183:6 3260:25 3267:5 3228:22
Docket 3139:3 3272:13 3274:14 3184:2 3310:1 eight-year-old
doctrine 3230:1 3277:11,14 draw 3150:18 easements 3281:11 3226:22
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doctrines 3270:22 downtown 3163:23 drew 3165:23 3220:21 3285:17 3285:17 3308:9
document 3236:12 3297:12 3305:21 drinking 3217:16 3300:15,21 elaboration 3232:5
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documented 3287:7 3185:13 3186:10 3218:7 3219:1,1 3220:1,3 3221:13 elementary 3216:22
documents 3147:9 3187:9,14 3189:24 3220:4 3221:16 3222:17 elements 3161:11
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3164:6 3169:7,22 3192:22 3193:16 drop 3174:11 economic 3216:5 elevating 3197:16
3179:1 3199:23 3193:23 3194:10 3195:13 3287:16 elevation 3186:14
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3240:15,19,25 3196:16,23 dry 3234:19 effect 3154:19 3256:11,13,15
3241:7,9,11 3197:10,12 3261:24 3162:10 3168:21 elevations 3154:16
3248:3 3286:21 3198:19 3200:5 drywall 3224:3 3182:19 3184:3 3255:23,24
3197:8,14 3200:18

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3334]

elided 3161:11 3201:19 3208:7,10 3232:5 3258:8 3250:23 3254:21 3237:14 3241:14
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eliminate 3181:15 3303:16,24 3304:2 3279:5 3261:9 3268:19 3289:18 3318:2
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ends 3153:6 3255:10 especially 3154:16 3148:10 3166:24 3241:3 3253:3 3314:3
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3146:7 3148:25 ESQ.9 3140:8 3237:21 3238:4,8 excluded 3225:7 expected 3156:4,6
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3165:21 3187:11 essentially 3172:9 3249:23 3250:10 excuse 3181:24 3173:3,14 3202:17

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3335]

3211:5 3226:10 3157:24 3160:24 3168:9 3190:2 3223:3 3224:6 fell 3299:4,7,10,11
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extent 3149:15 3321:1 3222:24,25 3223:1 3320:19 fire 3305:9
factors 3167:9,16,17

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3336]

firearms 3214:11 five 3168:9 3179:21 3272:13,18 3201:6,13,23 flooring 3210:21

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3258:24 3267:1,22 3248:12,14,16,22 3181:18 3182:19 3234:5 3265:6 3191:14,15 3194:4
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3288:2,8,10,25 3252:8 3253:4 3183:2,22,25 3221:2 3225:6 3198:22 3227:4
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3295:8,22 3313:2 3255:3 3256:15 3185:2,3,5 3187:6 floor 3142:7,16 3310:19,23 3311:5
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fit 3188:14 3263:8 3266:6,7 3195:23,25 3215:2 3217:15 Force 3213:13
fitness 3215:23 3266:18 3267:4 3196:25 3197:16 3219:8,14 3227:2 forced 3187:3
Fitzgerald 3195:5 3271:11,12 3197:17 3200:9,22 3227:11 3221:4 3275:1

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3337]

forcing 3277:3 3240:18 funding 3248:7 3154:5 3161:15 glass 3312:19

3297:24 forward 3152:12 funnels 3161:17 3171:17 3236:19 global 3192:7
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foreseen 3238:11 3258:18 3260:19 3232:3,4,7,9,22 generic 3292:14 3155:3,17 3157:14
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form 3157:4 full 3210:22 3214:7 3289:8,10,25 3222:11,14,24 3191:25 3193:8
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forties 3163:1 3299:9 3310:13 gates 3152:13,15 3304:11 3288:22 3289:3
3153:19,20,21

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3338]

3291:23,23,24 3268:15 3270:16 3282:5 3286:19 happen 3159:21 3238:5,6 3242:3

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hands 3214:25

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3339]

head 3168:16 3187:24 3196:18 3179:22 3186:15 3250:3 3253:8 3163:23 3169:14
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high 3186:22 3174:16 3176:15 3243:19 3248:1 3161:19 3163:22 hydrographs

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3340]

3184:18 3185:7 impede 3312:15 3215:18 3217:7,9 individuals 3209:6 instantaneous

hydrologist 3193:8 implausible 3308:12 3217:16 3225:11 induced 3181:4 3273:8
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impassable 3212:13

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3341]

interiors 3265:13 3293:13,19 3314:3 3222:20 3226:19,21 3162:8 3164:4,12

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January 3221:6 3215:17 3219:21

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3342]

Kulwant 3210:7 3197:11 3198:8,10 lays 3184:23 3175:15 3180:25 line 3147:16,16
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3188:2,4 3189:3 lay 3214:4 3166:1 3173:20 3238:2 livable 3227:18
3190:16,21 3197:6

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3343]

live 3164:12 3315:9 lucky 3217:18 maps 3187:10,15 3262:7 3297:5

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3314:17

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3344]

memo 3285:25 3209:20 3218:7,17 3195:11,13,22 3226:18 3229:19 3142:15

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N.W 3139:11

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3345]

need 3150:11 3286:16 3299:22 3160:7 3172:16 3265:10 3299:25 3304:14 3317:18
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3248:7 3259:20

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3346]

3274:21 overfilled 3194:3 3271:24 3273:21 parties 3215:14 performed 3262:25

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outreach 3321:13 3322:8 particular 3176:9 3277:4 3278:21 3265:13
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3290:17 3307:13 page 3144:3 3247:10 3256:11 3304:7 3309:11 3252:17
3308:19 3312:4 3147:16 3149:9 3257:8 3264:19 3310:14 3313:4,18 physical 3172:24
outward 3183:23 3156:20,21 3268:18 3277:9,23 3313:21 3314:22 3204:25 3205:1
overall 3154:25 3157:16 3158:19 3282:23 3283:1,12 3314:23,25 3321:3 3210:5 3216:6
3161:15 3163:10 3207:20,20,22 3291:14 3298:22 people's 3193:11 3217:22 3245:12
3207:11 3292:14 3208:3 3235:18 particularly percent 3206:11,13 3246:2 3253:24
overarching 3150:6 3238:13,17 3148:12 3230:4 3209:2 3288:10,11
3186:20 3253:15 3254:25 3261:19 perfect 3200:3 physically 3149:20
3263:15 3271:6,7

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3347]

3235:4 3237:7 3148:11 3173:14 3259:17 3260:1,25 3280:3 3281:18 3191:10 3206:2
3239:4 3246:16 3177:21 3181:8 3262:3,21 3264:1 3297:18 3306:25 3228:19 3229:17
3286:8 3298:13 3209:11,13 3210:1 3265:12,18 3266:1 3307:3 3230:7 3242:25
pick 3188:20 3216:20 3218:8 3266:6,16 3267:1 pled 3243:10 3254:2 3283:18
picked 3187:16 3219:25 3228:17 3267:14 3271:6 plotted 3177:3 3298:17 3307:23
3227:15 3284:15 3229:2 3231:20 3272:4,23 3273:22 plus 3151:11 3152:7 police 3213:13
pickle 3192:17 3234:3,24 3235:9 3277:11 3278:13 3163:8,8 3191:12 3214:12 3230:1
picture 3195:23 3238:8 3239:7,20 3279:3 3282:12 3196:18 3236:4 3268:7,16 3270:13
3222:14 3224:3 3240:9,15 3241:22 3286:24 3287:23 3310:19,23 3311:5 3270:21 3272:10
3299:10 3242:25 3243:6,7 3288:19 3289:5,9 3319:18 3273:7 3274:23
pictures 3311:10 3243:10 3244:24 3289:16,23 3293:6 pluses 3247:3 3275:16 3304:23
3318:25 3246:15 3249:17 3296:4,13 3305:24 point 3143:6 3304:24 3316:23
pile 3205:18 3249:19 3251:17 3311:14 3317:4 3146:24 3147:15 3319:22
3227:13 3252:6,7 3253:2 3320:13 3321:18 3148:20 3149:23 pond 3169:3
piles 3205:16 3213:3 3253:23 3254:14 plan 3149:12 3160:3 3150:6,6 3151:22 pool 3150:16 3153:4
pipe 3285:11 3258:3 3259:7,13 3160:9,10 3165:3 3152:2 3154:13 3154:4,25 3155:5
3311:23 3260:8 3261:6,11 3179:12 3186:4 3157:5 3158:17 3175:23 3177:22
pitch 3202:16 3262:13,18,24 3239:23,24 3240:1 3161:12 3162:2 3181:11,13,18
3209:5 3234:4 3263:14,18,24 3241:2 3273:19 3163:1,20 3164:8 3184:11 3186:25
3261:12 3264:10,17 3265:2 3275:25 3302:7 3172:7 3173:13 3187:23 3189:23
place 3139:11 3266:18 3267:3 3305:15 3307:14 3175:20 3178:20 3190:19,20
3174:3,6,12,13,16 3271:1,23 3273:1 3320:3 3193:16 3197:9 3199:22 3201:22
3175:22 3176:17 3273:14 3274:22 planned 3159:20,24 3200:4 3205:7 3201:25 3205:1
3185:1 3200:6,6 3275:18 3277:1,13 3210:10 3228:9 3206:25 3207:4,10 3207:14,24 3208:3
3201:5 3221:21 3277:18,18,21 3235:10 3271:25 3217:9 3220:13 3209:18,19,23
3223:2 3234:4 3278:16,17,17,18 3307:18 3230:22 3233:4,17 3215:24 3225:7,11
3246:12 3256:9 3281:25 3283:8,14 planning 3160:4 3242:10,16 3227:7 3235:20
3258:4 3305:6,16 3284:12 3285:16 3240:18 3241:1,10 3244:18 3246:5 3236:2,15,24
3306:19 3315:7,7 3286:2,15 3287:25 3241:12 3247:16,18 3244:11 3245:8
3315:19 3288:7 3290:9 plans 3161:20 3250:16 3253:14 3254:7 3256:15,21
placed 3149:18 3293:8 3294:24 plant 3315:11 3254:11 3257:8 3257:4 3276:7
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placeholder 3252:11 3298:6 3316:8 plats 3294:13 3266:14,14,21 pool-induced
places 3184:18 3318:14,24 3315:3 3267:8 3270:25 3181:2
3274:7 3319:23 3321:14 play 3179:15 3196:4 3271:1 3272:8 pooled 3205:2
placing 3264:15 Plaintiffs' 3176:15 3309:23 3313:8 3273:15 3277:11 pools 3215:13
3274:6 3290:7 3177:1,25 3180:20 played 3179:17 3278:15 3279:10 3222:6 3234:20,22
plaintiff 3143:14 3182:25 3204:11 3196:8 3214:14 3283:23,25 3285:7 3254:24 3255:2,3
3175:4 3210:3 3220:16 3229:14 3223:10 3286:24 3287:2 3272:18 3289:22
3230:12 3252:1 3229:22 3232:11 playing 3316:25 3290:5,18 3292:16 poorly 3227:3
3258:16 3259:25 3232:13 3233:5,6 Pleasant 3142:6 3304:23 3311:13 Popavicio 3206:24
3284:7 3290:7 3233:8 3234:17 please 3145:3,10 3313:1 3316:3 Popovicci 3217:3,10
Plaintiff's 3173:18 3235:8 3238:9,18 3146:14 3150:11 3320:18 Popovici 3216:18
3179:16 3274:1,2 3239:6,11,18 3156:21 3157:15 pointed 3177:10 3217:17,17,22,24
3285:12 3246:7,9,23 3176:25 3178:1 3202:19 3285:3 Popovicis 3216:19
Plaintiffs 3140:3 3249:11 3251:12 3179:15 3187:13 pointing 3319:9,10 3216:24 3218:6
3145:13 3146:12 3251:14,20 3195:21,21 3196:3 points 3157:11 portfolio 3206:18
3146:19 3147:5 3254:11 3255:1 3204:7 3229:9,13 3167:8 3173:22 portion 3191:11

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3348]

3298:10 precise 3191:8 prevent 3149:16 3216:15 3259:17 3282:5 3286:5

posed 3153:13 3284:5 3169:3 3203:25 3278:7 3292:3 3309:3
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possession 3224:15 prediction 3320:17 primary 3149:11 process 3240:11 3149:6 3152:1,24
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possessions 3174:17 3196:19 principles 3245:18 3263:13 3270:8 3181:1,17 3182:20
possibility 3170:18 preempt 3262:21 3246:2 profile 3188:2 3184:17 3187:21
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possible 3149:15,20 pregovernmental private 3150:8 3170:7 3180:16,17 3234:5,11,13,22
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possibly 3199:21 3240:10 3267:22 3166:18 3169:2 3240:4,19 3241:2 3258:11,12
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post-dated 3188:5 preparedness 3203:3,18 3263:8 3244:25 3245:12 3264:9,16 3265:7
post-trial 3229:15 3307:5 3268:1 3295:18 3245:23 3246:3 3265:15 3267:5
3229:16 3242:24 Preseault 3173:9 3296:7 3298:11 3248:3,8,12,14,16 3268:1 3269:3,4
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3252:4 3259:14 3303:14 3304:17 3305:3 3254:7,9 3262:25 3271:11 3272:13
3268:23 3283:8,15 presentation 3322:6 probabilities 3266:7 3272:19 3272:21 3274:14
3286:11 3293:5 presented 3178:18 3242:20 3260:10 3274:11 3280:22 3275:15 3277:7,14
3295:11 3320:10 3223:16 3237:21 probability 3237:25 3281:7 3286:8,9 3277:15 3278:10
3321:12 3322:1 3269:21 3291:19 3241:3 3259:23 3296:3 3302:5 3279:3 3281:13,23
potential 3178:17 3316:10 probable 3158:16 3303:3,12,12 3282:3,10 3286:14
3291:3 3298:4 preserve 3318:8,20 3158:17 3168:6 3309:6,10,10,13 3286:20,22 3289:3
power 3230:1 preserve.' 3318:13 3230:14 3242:15 3309:16,18 3310:8 3289:6,11,22
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3270:13,21 pressed 3235:7 probably 3148:16 3319:11 3294:1,25 3295:1
3272:11 3273:7 pressure 3163:12 3161:13 3168:9 project- 3224:19 3295:5,18 3296:7
3274:23 3275:16 presumably 3162:5 3174:12,17 project-induced 3298:11 3301:12
3298:9 3304:23,24 3163:1 3178:19 3184:16 3223:9 3225:4,15 3305:24 3306:6
3316:23 3319:22 pretrial 3308:25 3209:2 3218:5 3286:17 3310:11 3315:1,18
powers 3275:2 3321:25 3224:22 3308:16 projects 3241:10 3316:15,21
precedent 3279:5 pretty 3251:25 problem 3188:22 3251:13 3276:23 3321:15

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3349]

property 3150:9 property's 3218:4 3277:4,5 3278:16 3307:16 3314:4 3154:1 3188:14
3151:20 3155:22 property-specific 3278:24 3279:4 putting 3152:13,15 3194:10 3269:14
3164:13,21 3291:13 3293:21,22 3294:8 3166:17 3176:16 quotation 3318:15
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3166:18 3169:2,2 3239:23 3297:25 3298:2,14 PX 3237:16 3238:16 3159:4 3277:1
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3177:21 3179:14 proposed 3240:3 3321:13,14 3307:25 3310:21
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3187:3 3188:15 proposition 3261:17 publicly 3294:6,17 quad 3314:9,11,17 quoted 3156:5
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3199:6 3202:24 protect 3149:20 pull 3238:16 3301:6 Quebedeaux quoting 3304:25
3203:8,9,19 3268:5 3270:18 3315:12 3165:13 3166:5,14 3319:12
3205:2,4,4,7,9,11 3272:1,20 3279:4 pulled 3219:14 3298:21,22
3205:13 3206:1,7 3297:15 3307:19 3318:24,24 question 3146:23 R
3206:23 3207:3,14 protected 3230:13 Purcell 3143:5 3150:20 3151:5 R 3145:1
3207:18 3208:1,25 3271:17 3305:21 3146:8,9 3154:10,18 rain 3150:15
3210:1,2,4,16,24 protecting 3234:11 purchase 3161:2 3155:25 3156:13 3159:18 3184:21
3211:11 3213:17 3269:25 3165:25 3220:6 3157:15 3158:13 3184:22,22,24
3213:20 3215:6 protection 3149:4 3232:13 3159:9 3160:15,21 3186:19,19 3187:1
3216:15,20 3217:2 3234:9 3257:1 purchased 3163:7 3165:4,7 3169:8 3192:18 3199:17
3217:22 3218:1,5 3286:17 3166:2 3220:4 3171:2 3172:1,4 3199:18,19
3219:19 3220:24 protector 3212:21 3221:17 3226:11 3176:6,21 3177:14 3296:21,22,23
3221:11 3223:1 proud 3305:19 3226:16 3301:24 3177:18 3185:16 3297:7,11 3299:7
3224:4,22 3225:13 proudest 3206:19 purchasing 3246:17 3188:12 3203:15 3299:10,11,22
3225:17,19 prove 3174:22 purple 3197:25 3230:19 3235:8 3300:2,13,15
3226:10 3230:13 3181:8 3196:10 3200:15 3242:11 3243:18 rain's 3297:2
3232:11 3235:1 3235:9 3262:19 purpose 3148:23 3247:17 3248:11 rained 3186:22
3236:2 3245:7 3281:2 3149:2 3223:2 3258:22 3264:7 rainfall 3150:25
3249:18 3252:1 proved 3225:5 3298:15 3281:2 3301:15 3157:21,23 3162:2
3258:17 3260:1,25 3297:4,11 purposefully 3166:8 3303:25 3310:22 3186:11 3192:10
3261:19 3262:20 proven 3166:16 purposes 3173:15 3317:6 3319:20 3192:19 3238:4
3263:5,9,10,20 3168:1 3196:22 3245:1 3292:18 questioning 3238:22 3240:22 3259:3
3264:1,5 3265:11 proves 3179:7 pursuing 3295:24 3245:5 3253:6 3284:14,18,22
3268:3,25 3269:1 provide 3215:11 pushed 3199:1 questions 3160:14 3285:9 3295:20
3269:1 3270:1,17 3234:9 3286:14,16 3314:8 3180:3 3202:11 3299:3 3300:11,16
3272:1 3275:3 provided 3256:25 pushing 3197:15 3204:20 3209:4 raining 3217:12
3278:4,5 3282:12 3266:3 3291:3 put 3161:17 3163:12 3220:10 3221:13 rains 3159:14
3282:14,16,19,22 3316:20 3167:16,17 3225:18 3228:11 3183:15
3283:1,5,12 provides 3282:11 3168:24 3185:19 3228:18 3247:14 raise 3153:4
3286:9,23 3288:17 3295:9 3185:21 3186:11 3249:13 3283:17 3200:18,19
3289:16,17,23 proving 3302:18 3192:9 3193:6,10 3285:16,17 3218:11 3223:2
3290:4,15,20 proximity 3280:6 3198:14 3202:1 3290:17 3254:13
3291:15 3292:23 prudent 3229:11 3203:24 3207:17 quickly 3148:8 raised 3152:21
3298:14 3301:19 3237:8 3213:4 3214:6 3167:7 3188:12 3171:17 3254:17
3304:17 3314:16 public 3178:7 3222:7 3252:11 3286:20 3319:21 3316:11,17
3314:16 3317:25 3216:21 3252:6 3256:9 3274:2 quiet 3212:7 raises 3200:21
3318:11 3319:3 3268:5,11 3270:19 3298:4 3301:11 quintessential 3292:16
3320:22 3272:21 3275:5 3305:5 3306:25 3298:8 raising 3246:3
quite 3146:20 3253:25 3254:22

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3350]

Ranch 3211:2 3189:25 3195:2,4 3199:16 3206:4 recurring 3259:10 reject 3167:2
3221:25 3195:8,20 3196:21 3221:6 3224:25 3259:16,19 3260:9 3229:14 3233:7
Randy 3206:4 3197:8 3223:6 3225:9 3236:6 3260:13 3261:3,7 3287:23 3295:10
range 3322:2 3224:2 3231:4 3255:16 3261:13 3288:12 3321:18
rapidly 3220:12,13 3234:25 3243:5,8 recalls 3156:17 recurring-type rejected 3158:12
rare 3237:13 3239:9 3246:12 3264:7 3300:20 3266:22 3229:23 3263:19
3266:8 3270:3 3282:1 receded 3221:2 red 3153:13 3156:2 3296:9,13 3306:17
rarity 3237:22 3283:24 3285:6 received 3204:16 3183:13 3197:20 3314:5
3317:13 3295:17 3296:20 receptions 3215:15 3198:21 3199:8,9 rejecting 3157:18
rate 3191:12 3298:12 3304:14 recess 3229:7,8 3224:7 3245:15 3158:1
3224:10 3283:22 3309:23 3314:10 3279:19 3280:14 relate 3157:11
3310:19,22 3320:7 realtor 3221:19 reclaimed 3205:25 reduce 3278:24 related 3319:13
raw 3291:10 reason 3163:24 recognition 3179:3 3287:8,16 relates 3241:1
re-evaluated 3178:21,22 3297:21 reduced 3269:2 relative 3199:7
3171:19 3253:22 3220:21 3254:18 recognize 3148:9,13 3273:20 3309:1
3254:4 3290:5 3291:8 3173:23 3174:15 reduces 3262:23 release 3274:13
re-open 3239:14 3295:9 3299:15 3265:14 3318:16 3265:23 3285:14
3240:9 3310:5 recognizes 3172:17 reduction 3292:5 released 3277:19
re-urge 3173:10 reasonable 3165:6 Reconnaissance 3296:3 releases 3155:9
reach 3187:24,24 3172:20,22 3173:7 3294:17 refer 3147:9 3273:20 3274:18
3212:14 3258:22 3205:23 3231:17 reconvene 3228:23 3303:21,21 relevant 3154:3
3283:10 3287:22 3232:11 3248:20 3279:12 reference 3147:17 3155:11,13 3157:9
reached 3255:4,5 3251:23 3252:7,15 record 3146:20 3240:25 3241:11 3170:1 3195:8
3257:4,14 3262:7 3252:18,22 3253:2 3147:4,5,20 3306:23 3314:13 3230:7 3242:20
3262:9 3283:11 3253:7 3280:6 3148:2 3169:8 referenced 3269:25 3246:13 3247:1
read 3149:10 3293:2,12,18 3174:24 3176:8 referred 3319:8 3252:25 3253:22
3160:14 3186:16 3314:2 3321:9 3210:2 3222:9 refers 3241:12 3254:4,19 3268:16
3197:24 3231:11 reasonably 3235:16 3235:13 3239:10 3319:16 3288:5 3292:17
3286:3 3297:22 3236:4,9,16,25 3239:14 3240:9,22 reflected 3224:2 3293:4 3314:7
3310:21 3244:2,11,12 3295:3 3299:2 reflects 3222:10 reliable 3216:8
readiness 3307:5 3245:8,24 3247:21 3310:20 3311:16 3284:24 relied 3284:12
reading 3285:5 3247:24 3260:17 3311:16 3312:24 regard 3188:8 3293:20
ready 3167:15 3302:13,19 3314:22 3317:3 3230:25 3251:20 rely 3210:10
3267:15 3303:18 3320:6,20,24 3273:19 3282:2,22 3228:18 3260:11
real 3226:10 reasons 3171:7 3321:11 3283:11,14 3261:16 3283:17
3265:18 3305:14 3172:12 3206:14 record-setting 3285:24 3289:6 relying 3211:25
3307:24 3308:23 3206:14 3229:15 3238:4 3293:18 3256:21,22
3309:15 3311:6 3247:14 3264:21 recorded 3259:3 regarding 3257:25 3264:18 3315:16
3321:2 3286:4 3295:7 3296:8 3273:16 3284:13 remain 3244:24
real-time 3305:12 3296:11,12 recording 3323:6 region 3211:4 remainder 3228:19
reality 3195:13,25 rebuild 3205:24 records 3204:3 3237:20 3238:20 remained 3236:21
3271:13 3215:5 recovering 3213:22 3250:21 3300:2 3256:12
realized 3194:18 rebuilding 3205:20 recovery 3316:24 regular 3178:8 remaining 3295:12
really 3151:22 rebut 3207:8 3291:3 recuperating 3200:5 remains 3222:22
3155:24,25 3157:4 3291:8 3213:23 regulation 3149:13 3283:12 3285:18
3164:8 3171:2 recall 3177:1 3178:2 recur 3260:17 3236:11 3244:5,7 remarkable 3177:11
3175:3 3183:4 3181:21 3184:15 recurrence 3241:13 3248:10 remarks 3245:13
3186:20,22 3190:13 3196:9 3261:10 rehash 3169:6 remediate 3205:11

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3351]

3219:12 3265:19 3290:10 require 3178:10 3275:10 3277:15 results 3201:17

remediated 3219:18 3290:16 3296:2 3272:22 3292:8 3277:16,20 retain 3161:22
remedy 3230:17 repeat 3293:11 3305:12 3281:10,13,24 3208:10 3262:1
remember 3159:25 3309:13 required 3207:25 3286:21 3301:9
3162:17 3171:10 repeated 3284:7 3260:24 3275:18 residence 3226:1 retained 3166:17
3173:25 3180:18 3288:17 3318:18 requirement RESOURCE 3271:15 3278:5,7
3183:19 3186:5 repeatedly 3234:23 3258:15 3273:6 3141:19 3142:4,12 retaining 3278:4
3192:11 3193:1,20 3234:24 3262:2 3319:21 respect 3220:23 retention 3161:23
3193:22 3197:4,6 3263:19 3277:1 requires 3180:14 3258:11,12 3282:3 3163:17
3204:13 3300:23 3294:24 3207:13 3230:11 3295:13 3303:3 retire 3211:6
3301:16 3308:9 repeating 3259:22 3258:16 3259:21 3316:14 retired 3210:7
3312:2 replace 3210:21 3262:18 3270:14 respecting 3162:6 3213:12
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remind 3305:18 3304:15 3317:14 rescue 3212:16 3229:18 3289:4 retrieving 3215:1
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renovate 3210:22 3152:3 3170:7 3225:7 3226:15 result 3156:4 ride 3212:16
renovating 3213:18 3180:23 3183:1 3236:11 3244:5,6 3165:19 3168:6,14 Ridge 3159:16
renovations 3223:19 3190:11 3200:25 3248:9 3274:7 3170:6 3180:15 3164:22 3167:8,11
3223:21 3201:1,3,14 3278:19 3287:11 3187:10 3199:13 3167:17,23 3168:8
rent 3210:23 3202:5 3235:14 3289:20 3292:24 3201:18 3204:10 3168:15 3173:4
rental 3210:10,24 3238:15,18 3294:3 3302:11 3210:14 3215:19 3202:19,22
3213:16 3216:9 3241:25 3244:4 3303:20 3319:13 3216:2 3218:14 3209:14 3230:11
renter 3216:10 3245:20,21 3249:3 3319:14,17 3230:14 3235:5 3230:25 3231:8,22
reopen 3215:25 3254:5 3260:5 reservoir's 3289:13 3242:13,13,15 3231:24 3232:5,7
repair 3205:24 3278:20 3283:4,22 reservoirs 3139:5 3246:23 3256:10 3232:15 3233:6,9
3213:7 3294:17,19 3302:5 3140:4 3149:12,13 3256:11 3258:7 3233:11 3234:1
repairable 3265:11 3303:3,5 3311:19 3160:18 3234:18 3265:3,4 3269:23 3258:15,16
3265:16 3266:8 3312:4 3319:11 3235:10,20 3275:9 3288:18,20 3262:14,18
3296:5 3317:16,17 3320:9 3236:23,24 3291:25 3292:5 3265:22 3266:17
repaired 3215:20 reported 3183:15 3239:22 3240:1,8 3308:13 3313:14 riding 3223:11
3304:19 3319:6,7 3305:20 3311:17 3242:2 3244:1,10 3313:21 3320:23 right 3146:25
repairing 3224:19 Reporter 3139:25 3245:7 3253:18,20 resulted 3210:5 3147:23 3151:2
repairs 3264:12,20 reports 3285:25 3261:24 3262:2 3266:8 3296:4 3152:7 3154:12
3264:20 3265:3,14 request 3321:17 3263:18 3273:20 resulting 3218:5 3156:10,18,22

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3352]

3161:14 3162:20 3172:13 3174:20 3284:3 3295:24 3239:10,11 3185:2,23 3192:23

3166:10 3167:20 3175:6 3177:8 3298:20 3320:12 3255:19 3306:16 3197:8 3217:15
3169:25 3171:7,8 3223:8 3254:4 runway 3225:1,14 3308:17 3319:5,5 3220:19 3229:25
3171:15 3173:5 3276:20 3294:15 rupture 3214:6 saying 3180:1 3230:15 3253:22
3175:16 3176:2 3296:3 3297:21,21 rural 3314:16 3181:8 3195:3 3258:21 3262:14
3178:20 3180:10 3306:8 rushing 3159:23 3208:23 3234:25 3272:9 3284:10
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3257:2,10,23 robust 3183:21 3215:22 SB 3207:17 3224:12,16,18
3258:13 3267:20 roller-compacted San 3210:7 scale 3197:9 3225:10 3227:12
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risen 3217:6,6,9 3284:2,4,9 3269:23 se 3288:9 3313:21
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risk 3151:20 3152:1 runoff 3204:25 saw 3154:2 3169:21 3229:9 3280:3 send 3211:3 3216:21
3152:23 3153:13 3208:11 3180:22 3183:11 second 3150:6 sense 3192:1 3194:7
3154:9 3155:20 runs 3198:5,19 3186:14 3189:18 3152:6,19 3160:8 3235:22 3241:20
3160:17,24 3161:5 3201:4 3283:25 3201:8 3205:12 3163:3 3170:1 3242:9 3249:24
3212:17 3222:23

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3353]

3250:8 3300:8 3233:2,4,19,23 3240:19 3241:14 3287:4,5 3320:15 3151:16 3152:4,8

separate 3151:5 3234:1 3243:17 3258:3,5,16 single 3165:10 3153:12 3158:8
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3292:18 3262:13 3266:6 Sidhu 3210:7,19 3275:18 3276:12 soon 3192:22
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3145:25 3146:4,6 3187:7 3190:12 3222:19 situations 3276:5 3229:10 3307:22
3147:21,23 3195:21 3196:2,20 Similarly 3168:7 six 3215:18 3223:23 3311:25
3228:21 3229:4,5 3197:2,18,25 simple 3298:12,13 3224:13 3288:17 sort 3155:9 3162:18
3229:10,12 3231:6 3204:7,11 3230:12 simply 3242:12 sixties 3224:25 3172:2 3176:11
3231:8 3232:8 3235:2,5 3240:16 3281:16 3284:8 size 3150:10 3194:18 3197:8

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3354]

3198:1 3202:15 3248:17,22 3287:13 3292:7,10 stop 3154:7 3266:13 3241:4,19,19,23

3239:15 3244:24 spillways 3152:16 3292:25 3267:16 3269:9 3242:3,4,6,7,9
3245:13 3246:10 3153:5,6 3155:8 state-of-the-art stopped 3186:20 3244:2 3245:8,24
3252:17 3262:21 3255:9,17 3256:23 3284:20 stops 3170:2 3247:21 3248:17
3282:6 3291:5 3257:15 stated 3241:16 3318:25 3248:21 3249:25
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3305:9,14 3306:24 Sponenbarger states 3139:1 3240:6 3251:19 3256:16
3316:8 3318:8 3181:3,6,6 3141:18 3142:3,11 store 3149:19 3260:5,6 3261:10
sound 3223:5 spot 3187:16 3143:3 3145:25 3203:20 3216:13 3262:11 3263:6
3323:6 3188:15 3208:7,9 3237:20 stored 3215:18 3264:25 3265:5,17
sounded 3258:1 spreadsheet 3178:3 3240:23 3247:13 stores 3219:23 3266:8 3271:14
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source 3181:18 3281:3 3260:16 3261:14 3150:18,23,24 3276:17,21,21
3190:23 3192:11 Stacy 3189:16 3261:17 3262:8 3151:1,4,6,7,8,9 3282:15,20 3285:9
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sources 3187:20 3307:6,7 3311:23 3285:13 3287:15 3152:20,22 3300:18 3301:11
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spatially 3284:23 3322:4 stayed 3171:24 3162:13 3165:5,6 storms 3156:7
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3302:9 3191:5 3304:13 Stewart 3222:25,25 3220:20,22 stream 3220:18
spent 3188:9 3313:18 3223:25 3229:21 3235:5,11 Strebel 3215:16
3213:17 3227:16 started 3184:22 stick 3256:3 3235:12,16,16,21 3216:12
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3321:14 3283:4 3301:3 stilts 3174:6 3236:8,9,16,25 3141:21 3142:6,15
spike 3185:15 3315:25 3316:8 Stockton 3165:13 3237:5,7,10,10,11 3175:6,15 3182:24
spilled 3173:7 starting 3170:17 3165:15 3166:4 3237:12,19,25 3183:2,19 3184:9
spillway 3152:23 3214:22 3261:16,21,25 3238:1,11,20 3186:15 3223:11
3203:12 3237:12 state 3263:21 3262:5 3298:21 3239:3,16,17,17 streets 3175:10
3237:17 3241:16 3275:2 3284:25 stood 3255:16,21 3240:17,17,20,21 3176:3,4 3183:3,7

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3355]

3183:21 3186:5,23 3257:25 3310:7 3314:4 table 3145:14 3258:10 3266:15

3190:18,18,22 substance 3239:19 Supreme 3166:24 3286:11 3267:21 3298:17
3212:12 3218:24 substantial 3202:14 3233:14 3260:20 tables 3203:7 3298:24 3306:16
3219:3 3223:19 3230:16 3277:2 3279:5 tackle 3253:11 3307:22 3311:8,15
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strike 3266:20 3266:2,4 3295:21 3317:21 3150:23 3153:1 talked 3168:4
strikes 3321:2 substantiality 3317:22 3318:2,21 3156:10 3162:14 3169:5 3171:2
strips 3205:13 3231:10 3314:1 surcharged 3186:12 3162:25 3163:20 3180:19 3186:15
struck 3148:14 substantially 3204:6 3163:24 3172:25 3186:18 3187:9
3237:24 3268:20 3220:15 sure 3154:23 3156:9 3195:16,17 3200:4 3192:3 3194:15
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structural 3195:23 3184:2 3189:12 3256:4 3202:16 3207:16 3209:5 3248:16
3200:8,22 3206:6 succeed 3279:7 3257:13 3277:22 3228:9,22,24 3253:12 3255:22
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structure 3151:17 sued 3208:19 3317:19 3265:1 3267:7,10 3302:25 3315:3
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3152:13,16 3206:9 3209:3 surge 3212:20 3279:11 3282:19 talking 3153:11
3153:24,24 sufficient 3150:16 surgery 3213:22 3290:8 3291:20 3154:19 3156:23
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3157:2,4 3159:12 3235:2 3252:6 3295:5 3304:21 3305:22 3160:22,23 3161:2
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structures 3187:25 3230:16 3180:23 3316:9 3196:6 3222:5 3182:12 3183:9
3204:14 suggest 3228:21 surrounding 3300:1 3224:1,15 3227:22 3184:24 3185:18
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T 3139:10 3305:17

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3356]

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3216:20 3217:1 3164:24 3167:12 3247:10,11 Thiokil 3268:12 threshold 3222:12

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3357]

throw 3245:13 3293:8,15 3298:18 3239:14 3214:19 3236:19 3220:3

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For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3358]

uncontested uniform 3162:3 3201:1,1 3204:5 value 3206:9,20 3232:1 3268:4

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valuable 3174:17 3198:23 3205:19

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3359]

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3150:24 3151:9 3272:3,10,24 3171:3 3182:12 3319:13 3188:4 3189:25
3153:20,25,25 3273:2,10 3274:13 3184:24 3185:18 whole.' 3298:2 3200:25 3224:19
3154:6,7,23 3276:9 3277:16,19 3187:4 3189:13 wholesale 3318:6 3227:16 3297:1
3155:3 3159:12,17 3278:4 3281:12,22 3191:6 3201:11 3319:3 3312:2

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3360]

worked 3190:18 Y 3319:25,25 130 3287:10 3244:4 3247:11

3204:1 3270:5 Y 3164:10,15 zombi 3221:5 136 3200:2 3268:14 1940s 3235:11
working 3152:14 yard 3184:24 zone 3224:11,11 1374 3318:4 3236:7 3237:8
3312:11,25 3221:9 3224:4 3295:2 3313:23 1375 3318:10 3238:13,21,23
workout 3215:13 3227:14 zoom 3200:2 138 3220:17 3241:18 3242:7
works 3159:3 yeah 3156:9,22 3299:21 3300:12 14 3157:16,17,25 3243:2 3247:1
3190:8 3173:3,6 3174:12 3197:18 3251:13,22
world 3164:3 0 15 3253:15 3260:18 3253:21
3175:12 3183:10
3192:16 3247:13 3186:9 3199:1 0.3 3284:6 3310:21 1945-ish 3171:11
3281:17 3308:11 3200:2 3300:13 0.36 3320:19 15,000 3203:10 1955 3236:11
3308:13,17,18 year 3199:14 0016 3147:17 150 3314:22 3244:5 3248:9
3310:10 3311:6 3210:22 3219:18 007 3201:15 1500-year 3237:18 1960s 3236:20
worldly 3176:17 3225:16 3242:7 03301 3142:8 3241:17 3277:2
worried 3216:25 years 3148:4,6 09/18/2019 3323:11 152 3287:15 1962 3244:6
worries 3198:17 3157:23,25 3158:4 155 3285:12,24 1970s 3245:16,17
worry 3203:16 1 3311:14 1977 3245:6,19,20
3158:8,9 3160:5 1 3191:15 3207:13
3217:10 3170:11 3175:1 1597 3177:25 3248:25 3249:2,3
worst 3217:4 3271:24 16 3147:17 3237:1 3254:5
3212:7 3213:13 1.1 3191:16
3235:16 3236:3,8 3221:8,20 3223:1 3286:11 1980 3177:6,18
3236:16,25 3237:7 1/2 3191:15 3198:3 160 3174:25 1980s 3246:4
3224:14 3225:25 3217:9
3244:2 3245:8,24 3226:2 3228:5,7 1658 3274:1,2 3253:14 3254:13
3247:21 1:05 3279:19 168 3204:12 3294:9,11
3234:21 3238:25 10 3181:16 3185:17 17 3286:11 3303:4
wouldn't 3214:6 3240:25 3250:12 19817 3276:2
3226:15 3301:14 3185:19 3209:17 17-9001 3145:8 1989 3237:15
3250:13 3254:9,9 3228:5
3312:16 3260:3,18,23 17-9001L 3139:4 3241:14,16
wow 3191:20 10:00 3139:14 178 3273:21 1990s 3294:9,11,13
3261:2 3262:4,7 100-year 3183:13,15 17th 3315:10
wrecked 3174:3 3262:10 3288:17 1992 3294:15
Wright 3140:7 1000 3237:18 18 3228:7 3237:14 1995 3294:16
3290:23 3294:8 1000- 3241:17
3144:5 3145:17 3305:16 3306:21 3241:14 3276:2 1996 3294:18
3173:17 3209:6,9 1000-year 3238:20 180 3314:22 1st 3217:21 3218:2
3314:18 3242:1
3209:10,11,13 yellow 3177:4,20 1899 3150:14 3219:2
3212:19 3214:1,24 104 3150:15 3158:5 3159:2
yesterday 3146:18 11 3139:15 3213:6,8
3218:23 3170:12 3237:4,10 2
3146:19 3228:5
written 3241:9 York 3211:7 3239:16 3240:20 2:00 3279:13,19
3294:12 118 3275:21 3276:1 3241:4,19,22 2:02 3280:2
you-all 3179:20 3306:25
wrong 3189:14 3197:22 3301:23 20 3207:23 3208:1
3194:14,24 3195:4 119 3275:22 19 3222:14 3228:7 3261:2 3263:15
young 3219:20 3276:23
3196:16,17 3217:4 3226:7 3319:10 3307:1 3319:10
3264:13,13 12 3310:20 1935 3150:18 20-year 3220:20
younger 3218:18 120 3276:23
3273:17 3275:11 3151:6,7,11 2000 3143:6
3298:7 3299:5 Z 129518 3303:5 3155:18 3163:8,8 3152:18
3305:10 3308:21 Z 3164:10,15 13 3139:13 3145:11 3235:11,15,21,24 2000s 3246:19
3312:13 zero-sum 3160:1 3176:9 3180:20,25 3236:8 3301:24,25 2001 3211:1
wrongly 3284:12 3268:23 3269:6 3181:1,16 3182:20 3319:18 2002 3213:16
3285:5 3271:2,8,23 3185:18,19,21 1938 3165:21 2003 3216:19
wrote 3254:16 3272:7 3306:4 3197:18 3206:25 3169:7 3300:6 3218:13 3222:4
Zetterstrom 3209:17,25 1940 3150:22 2004 3218:13
X 3275:20 3276:11 3232:24 3297:6 3161:10 3235:14 3222:4
X 3144:1 3164:10,15 13,000 3204:14 20044 3142:18

For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019

[3361]

2005 3210:8 28 3197:25 4 3147:17 3187:7 6 3177:4 3208:3 800 3281:19

3221:17 28.5 3198:1 3268:12 6.8 3269:14 800-year 3262:11
2009 3178:20,25 28th 3195:24 3196:7 4.7 3278:21 6:15 3217:16 8000 3250:13
3207:13 3213:13 3212:11 3213:23 4:30 3217:8 600 3141:5 801 3281:19
3294:22 3218:20 3222:11 40 3165:21 3191:15 601 3142:15 8441 3141:5
2010 3224:15 3226:17 3238:17 3306:21 603 3210:12,15,22 850-year 3238:1
3294:22 29 3210:8 3319:15 400 3141:12 608 3200:2 3242:4 3260:4
2012 3218:8 2960 3147:16 409 3143:9 3260:22 61 3147:18 3282:20 3295:6
2013 3317:22 2961 3147:16 440,000 3226:6 625 3268:12 885 3250:12
2014 3220:5 29th 3217:5 3222:15 444-5002 3140:12 6363 3141:12
2017 3222:11,15 3223:15 46 3177:1 68 3320:10 9
3237:24 3259:24 469 3140:12 69 3320:10,16 9 3176:24 3238:17
3274:3 3295:18 3 47 3178:14 9-700 3141:22
2018 3221:7 3 3217:9 4709 3140:18 7 9:55 3196:6
3222:20 3223:22 3:01 3322:8 48 3183:1 7 3158:19 3177:5 90 3156:17 3237:5
3278:19 30 3192:18 3206:10 3190:14 3204:3,6 3250:5
2019 3139:13 3206:13 3209:1 5 3204:9 3240:19 900 3140:9
3218:2 3222:21 3212:7 3221:20 5 3139:9 3149:3 3269:13,24 3275:9 9000 3220:19
202 3142:19,20 3254:9,9 3260:23 3156:21,21 3187:8 3279:2 916 3141:24
2029 3238:13 3300:14 3315:10 3207:20,20,22 7-4 3149:9 930-2207 3141:24
2030 3317:4 3002 3195:21 3235:13 3297:18 70 3158:8 3160:5 94 3287:12
2096 3271:7 3005 3201:3 3302:5 3303:4 3170:17 3175:1 95 3204:8 3287:12
21 3207:24 3208:2 305-0466 3142:19 3319:8,15 3234:21 3262:4 95814 3141:23
210-square-foot 305-0506 3142:20 5.008(b) 3207:19 70-year 3260:10 97 3235:18
3215:7 30th 3212:13 50 3157:23 3158:4 7000 3203:9,9,18,19
211 3268:14 3225:10 3240:25 3203:24
216 3260:21 31 3178:1 3198:3 50-year 3169:11,24 713 3140:20 3141:7
2176 3179:16 3286:6 3239:17 3241:10 3141:14
22 3147:16 3293:12 3146 3144:4 3241:11,12 717 3139:11
224-7800 3141:14 31st 3211:9 3220:5 3303:12 72 3170:17
228 3204:7 32 3195:21 500 3140:10 737 3238:7 3278:20
2284 3237:16 3209 3144:5 500-year 3187:17 749 3216:3
3241:15 3220 3144:6 3295:2 75202 3140:11
23 3201:15 3225 3144:7 5000 3260:3 7611 3142:17
230-2200 3141:7 3229 3144:8 5000-year 3238:6 766-3822 3143:9
24 3201:15 3296 3144:4 3242:3 3250:11 77004 3140:19
24-C 3227:12 3315 3144:8 501 3141:21 77017 3141:6
24-hour 3184:12 339 3207:18 526 3182:25 77057 3141:13
25 3213:13 3236:12 34 3223:1 3238:16 775 3250:12
3306:11 35 3152:7 3166:1 53 3142:6 775- 3260:4
250 3156:21 35.1 3150:15 533-1704 3140:20 775-year 3169:12
25th 3275:21 369 3143:7 54 3319:15 3237:25 3295:5
2685 3310:20,21 3700-square-foot 55 3279:11 77550-1229 3143:8
26th 3274:3 3226:3 59 3196:2 78 3203:8
2769 3320:19 38 3165:5 597 3261:23 3262:7 7900 3203:8
2770 3320:19 3815 3207:18 597-foot 3262:9
27th 3195:23 3196:5 39 3165:21 5th 3219:4 8
3196:6 3217:3 8 3254:25
4 6 80 3305:16

For The Record, Inc.

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