2019_09_13 Closing Argument Transcript

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  In the Matter of: Upstream Addicks and Barker (Texas) Flood-Control Reservoirs September 13, 2019TrialVol. 11 Condensed Transcript with Word Index For The Record, Inc. 301) 870-8025 - - 800) 921-5555  TrialUpstream Addicks and Barker Texas) Flood-Control Reservoirs9/13/2019 301) 870-8025 - - 800) 921-5555For The Record, Inc. 1 (Pages 3139 to 3142) 3139 1  IN THE UNITED STATES COURT OF FEDERAL CLAIMS 23 IN RE: UPSTREAMADDICKS AND ) Master Docket No. 4 BARKER (TEXAS) FLOOD-CONTROL ) 17-9001L 5 RESERVOIRS. ) 6  _________________________________) 789  Courtroom5 10  Howard T. Markey National Courts Building 11  717 Madison Place, N.W. 12  Washington, D.C. 13  Friday, September 13, 2019 14  10:00 a.m. 15  Trial Volume 11 1617  BEFORE: THE HONORABLE CHARLES F. LETTOW 1819202122232425 Susanne Bergling, RMR-CRR-CLR, Reporter 3140 1 APPEARANCES: 23 ON BEHALF OF THE PLAINTIFFS (IN RE UPSTREAMADDICKS 4 AND BARKER (TEXAS) FLOOD-CONTROL (RESERVOIRS): 5  BURNS CHAREST, L.L.P. 6  BY: DANIEL H. CHAREST, ESQ. 7  LYDIA A. WRIGHT, ESQ. 8  LARRY VINCENT, ESQ.9 9  900 Jackson Street 10  Suite 500 11  Dallas, Texas 75202 12  (469) 444-5002 13 14 1516  IRVINE & CONNER, L.L.C. 17  BY: CHARLES W. IRVINE, ESQ. 18  4709 Austin Street 19  Houston, Texas 77004 20  (713) 533-1704 21 22232425 3141 1 APPEARANCES CONTINUED: 23  WILLIAMS, KHERKHER, HART, BOUNDAS, L.L.P. 4  BY: EDWIN A. EASTERBY, ESQ. 5  8441 Gulf Freeway, Suite 600 6  Houston, Texas 77017 7  (713) 230-2200 8 910  VB ATTORNEYS 11  BY: VUK VUJASINOVIC, ESQ. 12  6363 Woodway Drive, Suite 400 13  Houston, Texas 77057 14  (713) 224-7800 15 1617 ON BEHALF OF THE DEFENDANT: 18  UNITED STATES DEPARTMENT OF JUSTICE 19  ENVIRONMENT & NATURAL RESOURCE DIVISION 20  BY: WILLIAMSHAPIRO, ESQ. 21  501 I Street 22  Suite 9-700 23  Sacramento, California 95814 24  (916) 930-2207 25 3142 1 APPEARANCES CONTINUED: 23  UNITED STATES DEPARTMENT OF JUSTICE 4  ENVIRONMENT & NATURAL RESOURCE DIVISION 5  BY: KRISTINE S. TARDIFF, ESQ. 6  53 Pleasant Street 7  Fourth Floor 8  Concord, New Hampshire 03301 9 1011  UNITED STATES DEPARTMENT OF JUSTICE 12  ENVIRONMENT & NATURAL RESOURCE DIVISION 13  BY: LAURA DUNCAN, ESQ. 14  MAYTE SANTA CRUZ, ESQ. 15  601 D Street, N.W. 16  Third Floor 17  Post Office Box 7611 18  Washington, D.C. 20044 19  (202) 305-0466 20  (202) 305-0506 (Facsimile) 21 22232425  TrialUpstream Addicks and Barker Texas) Flood-Control Reservoirs9/13/2019 301) 870-8025 - - 800) 921-5555For The Record, Inc. 2 (Pages 3143 to 3146) 3143 1APPEARANCES CONTINUED:23 UNITED STATES ARMY CORPS OF ENGINEERS4 GALVESTON DISTRICT, OFFICE OF COUNSEL5 BY: JAMES E. PURCELL, ESQ.6 2000 Fort Point Road7 Suite 3698 Galveston, Texas 77550-12299 (409) 766-382210 PRESENT:14 Matt Boles, IT, Plaintiff 15 Dawn Miller, IT, Defendant16171819202122232425 3144 1 I N D E X23 CLOSING ARGUMENT PAGE4 MR. CHAREST 3146, 32965 MS. WRIGHT 32096 MR. EASTERBY 32207 MR. VUJASINOVIC 32258 MR. SHAPIRO 3229, 3315910111213141516171819202122232425 3145 1 P R O C E E D I N G S2 - - - - -3 THE COURT: Please be seated.4 Good morning.5 ALL COUNSEL: Good morning, Your Honor.6 THE COURT: The case before the Court this7morning is the Upstream Addicks and Barker (Texas) Flood8Control Reservoir case, Number 17-9001.9 Mr. Charest, Mr. Irvine, would you introduce10yourselves and your colleagues, please, as counsel for 11the 13 test properties.12 MR. CHAREST: Yes, sir. Daniel Charest for the13Upstream Plaintiffs. Next to me is Charles Irvine, and14going around the table, we have Vuc Vujasinovic, Armi15Easterby --16 MR. EASTERBY: Good morning, Your Honor.17 MR. CHAREST: -- Lydia Wright, Larry Vincent, and18our colleague, Matt Boles, who is our AV tech who is19going to help us today.20 THE COURT: Welcome.21 And, Mr. Shapiro, would you introduce yourself as22counsel for the Government and introduce your colleagues23as well.24 MR. SHAPIRO: Good morning, Your Honor. Bill25Shapiro with the United States Department of Justice. 31461With me is Kris Tardiff with the Department of Justice.2 MS. TARDIFF: Good morning, Your Honor.3 THE COURT: Welcome.4 MR. SHAPIRO: Dawn Miller, Mayte Santa Cruz --5 MS. SANTA CRUZ: Good morning, Your Honor.6 MR. SHAPIRO: -- Laura Duncan.7 And from the U.S. Army Corps of Engineers, Office8of Counsel, James Purcell.9 MR. PURCELL: Good morning, Your Honor.10 THE COURT: Good morning.11 We are here for a closing argument in the12upstream case, and with that, because the Plaintiffs13have the burden of proof, Mr. Charest, would you begin.14 MR. CHAREST: May it please the Court, Your 15Honor.16 THE COURT: I will say the Court has looked at17the briefs and has looked at everything except all of 18the most recent filing yesterday or -- well, it was19yesterday, late, on the motion for -- by the Plaintiffs20to supplement the record. So I have not quite finished21that.22 But go ahead, Mr. Charest.23 MR. CHAREST: Well, that was my first question,24was more a point of order. Does the Court want to25address those evidentiary issues or just get right to  TrialUpstream Addicks and Barker Texas) Flood-Control Reservoirs9/13/2019 301) 870-8025 - - 800) 921-5555For The Record, Inc. 3 (Pages 3147 to 3150) 3147 1the closings here?2 THE COURT: The Court will defer acting on those3motions. There are a couple of motions, one by the4Government to correct the trial record and the other by5the Plaintiffs to supplement the trial record, and the6Court will defer those until the disposition of the7merits of the case.8 MR. CHAREST: Very well, sir. I do intend to9refer to the two documents during this closing.10 THE COURT: That's fine.11 MR. CHAREST: Thank you, sir.12 THE COURT: They are before the Court.13 MR. CHAREST: Thank you.14 And there was one -- this is a -- I will make an15oral motion as an agreed point. We noted that in the16transcript, sir, on page 2960, at line 22, to 2961, line174, there's a reference to Micu 0016, Micu 16, and it18should have been Micu 61. The numbers are inverted, and19we didn't note that the first time around, and I believe20that's unopposed, to change that in the record.21 MR. SHAPIRO: That's correct. We do not oppose22that.23 THE COURT: All right. Thank you, Mr. Shapiro.24 We will take that into account.25 MR. CHAREST: Thank you, sir. 3148 1 Well, first, before we begin, sir, I want to just2note for the record and for everyone that may be3listening at home that it is nearly, almost to the day,4two years since we filed the first upstream case under 5the Micu case, and while people that are not involved in6litigation would think that two years is a long time, I7would commend everybody here, both sides and the Court,8and thank the Court for getting us here so quickly.9 And I want to recognize also, as the Court had me10introduce everybody, we had an excellent team together 11for the Plaintiffs, both here in the courtroom and the12folks, particularly the trial paralegals, back at home13in the office. I want to recognize them.14 THE COURT: I'm struck by the fact that this15courtroom is so much smaller than the one in Houston16that we are probably a little cramped from your 17perspective, Mr. Charest.18 MR. CHAREST: Well, I will try not to sit in19Mr. Shapiro's lap when he's doing his argument.20 So the core point, the two central tenets that I21think in this case that are important to understand from22the beginning all the way through the end are these:23number one, the purpose of the dam, and number two, the24operating concept of the dam.25 By congressional mandate, the Corps of Engineers 3149 1 built the Addicks and Barker Dams, the Buffalo Bayou2project, for the sole purpose of -- and I'll quote from3Joint Exhibit 5, the Definite Project Report -- for the4protection of the City of Houston, Texas, and the5Houston ship channel. The sole beneficiary of this6project is the properties downstream of the dams.7That's confirmed in testimony by both Mr. Long and8Mr. Thomas, and the documents go on on that at length.9 In the Water Control Manual, at page 7-4, it10says -- and I'll read the quote to the Court -- In11keeping with the primary objective of flood control for 12Addicks and Barker Reservoirs, the general plan for the13reservoir regulation, will be to operate the reservoirs 14-- that's the upstream area -- in a manner that will15utilize, to the maximum extent possible, the available16storage to prevent the occurrence of damaging stages on17Buffalo Bayou -- that's the downstream area -- within18the limits placed by the constraints of the project19operations, meaning they will store as much water as20physically possible upstream to protect those homes21downstream, and that's by design, by operation exactly22what happened in this case here.23 The other point to understand is that the Corps,24 because it's a congressional mandate, cannot change25those operations without going back to Congress. So 3150 1even -- and that's cutting ahead to later on in the2argument, but if Harvey happened again today, the Corps3would do the exact same steps. There is no discretion4allowed. They would have done the same thing because5that is the congressional mandate.6 The second key point, the overarching point on7this is the operating design, the operating concept of 8the dam, which was to impound stormwater on private9 property as part of the reservoir that was designed for 10the dam of this size.11 Could you do the graphic, please? What do I need12to do here? Thank you.13 So when the Corps designed the dam, it used as14its design storm the Hearne Storm from 1899, which was1535.1 inches of rain over 104 hours. Rather than acquire16sufficient land to occupy -- to allow that storm pool to17occupy government-owned land, the Government used the181935 storm to decide where to draw the takings line.19And so --20 THE COURT: Well, that poses a question --21 MR. CHAREST: Yes, sir.22 THE COURT: -- because the 1940 final design23appeared to take the lesser storm. The Court was well24aware of the Hearne Storm and the volume of water,25rainfall, and so on that would be generated by such a
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