0001 1 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA 2 MACON DIVISION 3 4 CAUTION MACON, INC., ET AL, ) ) 5 Plaintiffs, ) 5:99-CV-383-2 (DF) ) JANUARY 6, 2000 6 vs. ) MACON, GEORGIA ) BEFORE THE HONORABLE 7 CITY OF MACON, GEORGIA, ET AL,) DUROSS FITZPATRICK ) 8 Defendants. ) ______________________________) 9 10 11 PRELIMINARY INJUNCTION HEARING VOLUME II 12 13 APPEARANCES: 14 FOR THE PLAINTIFF: 15 RICHARD N. HUBERT, ESQUIRE CHAMBERLAIN, HRDLICKA, WHITE, WILLIAMS & MARTIN 16 NINTH FLOOR 191 PEACHTREE STREET, N.E. 17 ATLANTA, GEORGIA 30303 18 FOR THE DEFENDANT FEDERAL HIGHWAY ADMINISTRATION: 19 JAMES C. THOMASON, ESQUIRE 20 61 FORSYTH STREET, S.W. SUITE 17T26 21 ATLANTA, GEORGIA 30303 22 H. RANDOLPH ADERHOLD, ESQUIRE U.S. ATTORNEY'S OFFICE 23 MIDDLE JUDICIAL DISTRICT. P. O. BOX U 24 MACON, GEORGIA 31202 25 0002 1 2 3 FOR THE DEFENDANT GEORGIA DEPARTMENT OF TRANSPORTATION: 4 CATHY COX-BRAKEFIELD, ESQUIRE 5 STATE OF GEORGIA DEPARTMENT OF LAW 40 CAPITOL SQUARE, S.W. 6 ATLANTA, GEORGIA 30334-1300 7 JOHN DRAUGHON, ESQUIRE SELL & MELTON. 8 P. O. BOX 229 MACON, GEORGIA 31202-0229 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0003 1 P-R-O-C-E-E-D-I-N-G-S 2 THE COURT: Good morning, ladies and gentlemen. 3 Mr. Hubert. 4 MR. HUBERT: Your Honor, we would offer Exhibit 53 5 under the provisions of the Rules of Federal Procedure 803 6 dealing with hearsay, particularly Subsection 8 and Subsection 6 7 as well. And I believe we were dwelling on 6 yesterday at the 8 conclusion of business, and you asked me to examine our position 9 on that document. And our position is that it would be 10 admissible under either of those provisions. 11 THE COURT: All right. Well, I tell you what I'm 12 going to do; I'm going to reserve ruling on that and I will give 13 you a ruling later this morning. 14 MR. HUBERT: Very well, sir. 15 THE COURT: I want to do a little more study on it. 16 Q. (BY MR. HUBERT) As relates to Plaintiffs' Exhibit No. 53, 17 just identify that document, then, for the record. You did 18 receive that, you recall, and it is a communication from whom, 19 please? 20 A. It is from Jim Marshall. And the way I received it is 21 through the Middle Georgia Historical Society, and I'm the 22 secretary of it. 23 Q. When you received document 53, it did have the attachments 24 that are stated on this document at this time; is that correct? 25 A. Yes. 0004 1 Q. And that was the letter of September 1, which is made 2 reference in a footnote and the letter of November 13th, which 3 is made reference to in the document itself. 4 A. Right. 5 Q. From the mayor, correct? Now, what if anything did you do, 6 Ms. Rivers, as a result of receiving Plaintiffs' 53? 7 A. Well, let's see, I'm trying to get the time line straight. 8 At that time I went and I called Mark Edwards up at SHPO, 9 and he, well, he was gone, you know, at that time, if I've got 10 the dates right. He had already moved on to Washington. And he 11 -- I'm kind of scared because I don't know about hearsay. 12 Yesterday you said not to say what other people had said. But 13 he had told me that he had written that letter -- 14 MR. ALMAND: May it please the court, I would object 15 to the hearsay. 16 THE WITNESS: Okay. 17 MR. HUBERT: Wait just a minute. 18 THE WITNESS: Okay, I'm trying. 19 THE COURT: All right. Well, Mr. Hubert, she 20 obviously just can't quote hearsay. 21 MR. HUBERT: I don't know what she was going to say 22 your Honor. I can't -- 23 THE COURT: Let me just give -- maybe this will help. 24 THE WITNESS: Okay, that is what I did, yesterday. It 25 is hard -- 0005 1 THE COURT: All right, if someone tells you something 2 and that leads you to do something else, or to take further 3 action or do something, then that, you are allowed to testify as 4 to what you did based on the information you got. 5 THE WITNESS: Okay. 6 THE COURT: You follow me? 7 THE WITNESS: Okay. Well, then, eventually -- 8 Q. (BY MR. HUBERT) Wait a minute, please, ma'am. 9 Ms. Rivers. 10 A. Okay. 11 Q. You will get my question, and if you will, just respond to 12 my question and then we'll go forward? 13 A. All right. 14 Q. After you got the letter, which was P-53 from Jim Marshall 15 to Mark Edwards, what was the next thing that you did, or the 16 next event that occurred, please, ma'am? 17 A. All right. The event, I did contact SHPO in Atlanta and 18 tried to get the people that were in SHPO at that time, the new 19 people, Richard and Ray, to come down to Macon. 20 Q. Okay. Now, did you talk to anyone at the Georgia DOT about 21 the Heard School? 22 A. No. I talked directly to the people at SHPO. 23 Q. All right. Did you consider the Heard School as being 24 eligible as a historic property for the Register of Historic 25 Places? 0006 1 A. Yes, I thought it was. 2 Q. And when you, after you had the folks come down, had the 3 exchange of letters that we have talked about in 53 and 4 otherwise, did anything else happen, Ms. Rivers, as relates to 5 actually having the properties examined and placed on the 6 Register of Historic Places? 7 A. Yes, sir. Richard Luce wrote a letter to David Studstill 8 and, asking for a request for reconsideration. 9 Q. All right. Now, Ms. Rivers, who is David Studstill? 10 A. Okay. State Environmental Location Engineer, Georgia 11 Department of Transportation. 12 Q. All right. And what did you ask of him? 13 A. Okay. Now, I didn't ask anything of him. Ray Luce, the 14 new head of SHPO, asked him to reconsider her school for the 15 National Register. 16 Q. All right. 17 A. And here is the letter, if you -- 18 Q. All right. Now, let me ask you -- 19 A. Okay. 20 Q. I show you a document previously identified as Plaintiffs' 21 Exhibit 59, please, ma'am. Tell me what that document is? 22 A. This is the same letter that I have a copy right here. Ray 23 Luce's letter and Richard Clous' letter. Because he is actually 24 the one that is survey unit manager. 25 Q. All right. Now, Richard Klous -- 0007 1 A. Well, he is -- 2 Q. Listen to my question, please, ma'am. Richard Clous is 3 whom, please? 4 A. Survey and register unit manager. 5 Q. All right -- 6 A. Deputy State Historic Preservation Officer. He determines 7 in part what goes on the register. 8 Q. Did he take Mr. Mark Edward's place? 9 A. No. 10 Q. At SHPO? 11 A. No. Ray Luce took his place. He is the interim. But this 12 is the man that works with him that works with the register. 13 Q. All right. Did Mr. Clous, or not, come to Macon and visit 14 the site? 15 A. They both did. 16 Q. When he visited the site was he in your presence, ma'am? 17 A. Yes. 18 Q. And did you do it in your automobile with him in the car 19 with you? 20 A. Yes, yes, yes. 21 Q. Now, as a result of Plaintiffs' 59, does it show you as 22 receiving a copy of that? 23 A. Yes. 24 Q. As well as myself? 25 A. Yes. 0008 1 Q. All right. Now, the purpose and intent of P-59? What did 2 you seek to accomplish by P-59? 3 A. This letter -- well, he was, Richard, was asking that Heard 4 School be reconsidered to be on the National Register. He goes 5 on to say that he thought that Heard School had been altered in 6 such a way, originally, that it was not eligible. But once he 7 came down here and looked at it, he realized that he thought it 8 would qualify. 9 Q. Now, would you place this in time for the court, just a 10 little bit? Is this after the FONSI has issued and is this 11 after the road is being considered to be built, based on the 12 environmental assessment in FONSI, or is it before, please, 13 ma'am? 14 A. Well, this Heard School was left out of the studies that 15 went into the FONSI. 16 Q. Do you conclude from that that the study was appropriate, 17 ample and carefully done? 18 A. No, sir. I think that things were left out that should 19 have been considered. There are other things listed here 20 besides even Heard School. 21 Q. All right. Were there properties other than the Heard 22 School that from a historical perspective you were asking to be 23 reconsidered? 24 A. Yes. There was a church, Liberty United Methodist Church 25 and Cemetery; and it says that formed the center of a disbursed 0009 1 rule community called Rutland. And he goes on to say that it 2 appeared to us that this assemblage of buildings and sites might 3 form a small National Register eligible historic district. 4 Q. All right. Now, can you state for the court whether you 5 examined the environmental assessment document, and were any of 6 those historic places within that document and discussed in that 7 document, please, ma'am? 8 A. I read it but I did not see them in there. 9 Q. All right. Now, your purpose and intent was to accomplish 10 what goal, Ms. Rivers, please, ma'am, with your historic 11 interest? What were you trying to do? 12 A. Well, I just wanted them to ride out there and look and see 13 what they thought, you know. They are the experts, to see if 14 they thought they would be eligible, and they said, they just 15 didn't have any idea that those places were there and that they 16 were that significant, and that, indeed, they thought they would 17 than be eligible. That is what they said. 18 Q. What changes, if any, were made to the environmental 19 assessment or the FONSI? 20 A. Well, I'm not aware of any. 21 Q. Did the effort to have new properties placed on the 22 Register of Historic Places have any significant impact that you 23 know at all on either the environmental assessment or the FONSI 24 that was issued in this case? 25 A. I am not aware of any. 0010 1 Q. Do you consider you have been successful in getting those 2 places to be considered, in part of your efforts in addition to 3 others? 4 A. I don't know how it is going to turn out. I mean, they 5 have written this letter and they of said, you know, that they 6 are eligible. I'm hoping that it will turn out well. 7 Q. Do you know if the roadway has been changed, the planned 8 design of the roadway has been changed in anyway to accommodate 9 the historic properties' consideration that was there before? 10 A. Well, I believe it is my understanding that it was 11 narrowed, you know, in and out shaped. But that is all I know, 12 you know. I don't know how it is going the turn out in the end. 13 Q. All right. And have you seen those properties recently? 14 A. Not recently. 15 Q. When is the last time you looked at the property? 16 A. The last time I went out and really looked at them was with 17 them. 18 Q. Have you been by the properties to see that there is any 19 construction going on or that the properties are in any way 20 being desecrated as a result of construction going on? 21 A. I have not. I haven't gone out there and looked. I have 22 heard, but that is hearsay. 23 Q. Is it your understanding that you are entitled to some 24 protection of those properties under what is called a 106 25 designation? Do you know what a 106 designation is? 0011 1 A. Yes. 2 Q. Would you tell the court what your understanding of a 106 3 protection designation is. 4 A. Well, Section 106 gives protection to the properties that 5 have federal funding used on them. And there was -- 6 MR. HUBERT: Excuse me, Ms. Rivers, just a minute. 7 I am sorry, judge, there was a witness we just called 8 for this morning. He inadvertently stepped in the room. 9 Q. (BY MR. HUBERT) I'm sorry, Ms. Rivers. Now, you were 10 explaining to the court what your understanding was of the 106 11 protection? 12 A. Well, it was a study that was done for properties that have 13 federal funding used, and -- go ahead. 14 Q. Well, are those properties being protected now? 15 A. Not to my knowledge. There was a Section 106 review done 16 but the properties were left out. And I read, you know, what 17 was there, but I didn't see them there. 18 Q. All right. If the properties were left out, what is your 19 opinion of the study in terms of its thoroughness, integrity and 20 appropriateness in terms of describing the historic properties 21 along the route of Houston Road, in your opinion? 22 A. I think it is inadequate. 23 Q. Do you have any information at all that the inadequacy of 24 the study was acknowledged by anyone in city government or in, 25 at the state level, please, ma'am? 0012 1 A. Okay. Well, to that particular project, no. But to the 2 program as a whole, yes. 3 Q. Can you tell me what that knowledge that you have is? What 4 you base your opinion on, please. 5 A. I'm trying to figure out how to do this without having 6 hearsay. 7 All right. Well, of course -- can I talk about 8 conversations with -- 9 Q. Just tell us how you know it, please, ma'am. 10 A. Through conversations and letters from Mark Edwards who 11 used to be the head of SHPO. 12 Q. Do you have any information that letters and communication 13 from Mark Edwards were in fact suppressed at the state level, 14 Ms. Rivers? 15 A. Yes. 16 Q. Asked not to be sent? 17 A. Yes. 18 MR. ALMAND: If it please the court, I would object to 19 that. That would be pure hearsay. 20 MR. HUBERT: I don't know if it would or not, judge. 21 We are talking about bad faith under the footnote of the 83 F.3d 22 cite that you gave us yesterday. That is an admission against 23 interest, set forth in written documents and it is an admission 24 against interest, and the witness is here to testify as to it as 25 well. And it is, I think, admissible, your Honor, on that 0013 1 basis. We would ask it be considered on that basis. 2 THE COURT: Well, hearsay by any other name is still 3 hearsay. And I think that it may, you know, it may be an 4 admission. It may be helpful, but you have got to get it in 5 evidence some way. And it appears to me that it is classic 6 hearsay. 7 MS. BRAKEFIELD: Your Honor, as an attorney for the 8 Georgia Department of Transportation, I feel compelled to make 9 sure the record is clear that if there is any admission in that 10 document that was not sent by the Georgia Department of Human, 11 of Natural Resources, that that is not an admission against 12 interest, whether hearsay or not, against the Georgia Department 13 of Transportation. 14 There has been no evidence by this witness or anyone 15 else that any official at the Georgia Department of 16 Transportation, nor does the document that the court is 17 reserving whether to admit or not, referring in any way by any 18 action of the Georgia Department of Transportation, which is the 19 state party defendant in this case. Not the Georgia Department 20 of Natural Resources. And we would object to its admissibility 21 on that basis, just for the record. Thank you, your Honor. 22 MR. HUBERT: Well, if I may respond to that. The 23 Georgia Department of Transportation is the agency that is 24 responsible for the creation of these documents to be submitted 25 to the Federal Highway Administration. And in that regard they 0014 1 do have responsibility and they are directly and purposely 2 responsible for any bad faith failure to deliver a document that 3 describes the historic property as being deliberately left off 4 the analysis for the environmental impact statement or the EA in 5 this case. 6 And it, the fact is that this witness can testify to 7 it, and we have got document 53 that goes into it, and it falls 8 directly within that area where the court said it would receive 9 testimony. 10 THE COURT: All right. Well, I don't think I need to 11 hear anymore about this right now. I am not going to allow it 12 in on a hearsay basis. And I will consider your -- 13 MR. HUBERT: Very well. 14 THE COURT: We'll do that at a break. I will deal 15 with this question. So let's move on. 16 MR. HUBERT: All right, sir. 17 Q. (BY MR. HUBERT) Did you, in your opinion, Ms. Rivers, 18 achieve the acknowledgment by the state environmental, I mean 19 the State Historic Preservation Officers that these properties 20 were and should have been included in the environmental 21 assessment study? 22 A. Most definitely. 23 Q. All right. Thank you. 24 MR. HUBERT: That is all. 25 CROSS-EXAMINATION 0015 1 BY MS. BRAKEFIELD: 2 Q. Ms. Rivers, my name is Cathy Cox-Brakefield. I'm a Senior 3 Assistant Attorney General for the State of Georgia. I 4 represent the Georgia Department of Transportation in this case 5 and I have just a few questions for you. 6 A. Okay. 7 Q. I take it from your testimony, Ms. Rivers, that you are 8 unaware of a subsequent Section 106 review that led to a revised 9 memorandum of understanding with the State Historic Preservation 10 Officer and the DOT, the Federal Highway Administration and 11 local officials? 12 A. I'm not aware that that went into the FONSI. 13 Q. My question is, you were unaware of such an agreement; is 14 that correct? 15 A. I'm not aware that that made it into any decision having to 16 do with Houston Road. 17 Q. That is my question. You were not aware, one way or the 18 other, about such a subsequent Section 106 review, are you? 19 A. I am aware that -- 20 Q. Ms. Rivers, let me see if I can help you. My understanding 21 of your testimony to Mr. Hubert is that you were not aware of 22 whether or not your actions and all the activities that you have 23 discussed led to any further review of any further changes. Did 24 I misunderstand you or was that your testimony? 25 A. No, that is not my testimony. I am aware that all the 0016 1 paperwork that had been done should be in in order for the roads 2 construction to have begun. If there is anything else floating 3 around there, why are we not seeing it? 4 Q. Have you asked for any copy of the subsequent 106 review? 5 A. If a subsequent 106 review exists, they should have given 6 it to us. We have been at every single road improvement meeting 7 for two years asking for these things. 8 Q. Have you made any request of the Federal Highway 9 Administration or of the Georgia Department of Transportation 10 for such a subsequently created federal document? 11 A. I assume if it existed, then it would have been in with the 12 paperwork that would have been needed for the road to be 13 constructed. 14 Q. My question was, have you asked the federal or state 15 officials for such a document, directly? 16 A. My answer is, I don't believe it exists, because if it 17 existed they would have brought it forward and showed it to us. 18 THE COURT: Ms. Rivers, let me step in here. If she 19 asks you a question that can be answered yes or no, go ahead and 20 say yes or no. Then give your explanation. You can give any 21 follow-up you want to. But if you don't start with a yes or no, 22 we are going to be going back and forth like a tennis game, back 23 and forth, back and forth. 24 A. Okay. 25 Q. (BY MS. BRAKEFIELD) My understanding is you do not believe 0017 1 such a document exists. Is that your testimony? 2 A. No, I don't believe it exists. 3 Q. All right. Thank you. 4 A. All right. 5 Q. I take it, then, Ms. Rivers, that you are unaware of what 6 changes were made in the project in the vicinity of the John 7 Heard School, as a result of the meetings that you have 8 discussed with the State Historic Preservation Officers and 9 yourself? 10 MR. HUBERT: Your Honor, may I say, if this is a 11 document, then the highest and best evidence of the document 12 would be that which the witness should be accorded a right to 13 look at and determine whether she knows it or not. She is 14 asking her about a document or some written representation, the 15 highest and best evidence of which would be the document itself. 16 MS. BRAKEFIELD: Your Honor, I'm sure the document 17 will be admitted by the appropriate witness. 18 MR. HUBERT: That won't do, your Honor, that won't do. 19 THE COURT: Well, if you are asking her to state 20 whether or not a certain document contains certain language, 21 then I think you need to show the document. 22 MS. BRAKEFIELD: Your Honor, I did not intend to. If 23 my question suggested that I did, let me try to reword it. 24 THE COURT: Do it again. 25 Q. (BY MS. BRAKEFIELD) Ms. Rivers, with regard to the 0018 1 project, not any document, but the project as it is to be 2 constructed, are you aware, one way or the other, of whether any 3 changes were made to the project plan for construction after 4 your activities that you have discussed on direct? 5 MR. HUBERT: Your Honor, again, I must ask that to the 6 extent that it asks if certain changes have been made to an 7 existing document, and it is in a document, that that document 8 would be the highest and best evidence. I object to it. 9 THE COURT: Well, I will overrule that objection. I 10 think it is a fair question. Answer the question, please. 11 Q. (BY MS. BRAKEFIELD) Did you understand my question? 12 A. Originally you were asking if another section -- 13 Q. No, we have moved on to the project itself. Not the 106 14 review. Are you aware, one way or the other, of whether any 15 changes have been made to the idea about how the project is 16 going to be constructed as a result of your activities that you 17 discussed on direct? 18 A. I am aware that they said that they may possibly do 19 something, but I have not seen any evidence that anything better 20 exists. 21 Q. Have you asked for such documents, again? 22 A. I know that the people of Houston Road have asked over and 23 over again. 24 Q. Have you personally asked, Ms. Rivers? 25 A. No, I have not asked for those documents. 0019 1 Q. Thank you very much. 2 A. Thank you. 3 THE COURT: Anything further? 4 MR. ALMAND: No, your Honor. 5 MR. HUBERT: I have one quick question. 6 MR. ADERHOLD: I have one 7 CROSS-EXAMINATION 8 BY MR. ADERHOLD: 9 Q. You testified, I believe, Ms. Rivers, a moment ago that No. 10 53, the letter that the court has under consideration that you 11 identified but hasn't come into evidence, did not have an 12 attachment to it when you saw it? Do you remember that 13 testimony? 14 A. Did not have an attachment? I have seen all the letters. 15 Q. Yes, ma'am, but No. 53 -- 16 A. I don't have it here, I'm not sure what you are talking 17 about. 18 Q. I just want to clarify. No. 53, I believe you said it did 19 not have the attachments when you -- 20 A. No. I said it did have attachments. I have seen all of 21 these. They have all come to me and I have seen them all. 22 Q. Yes, ma'am, but when you got the first letter, did it have 23 all the attachments that are with it now? 24 A. I saw them at different times and I saw them together. 25 THE COURT: Let me -- let me say something. 0020 1 THE WITNESS: Okay. 2 THE COURT: Because I have got to rule on 53. It 3 appears to me that if what has been designated as Exhibit 53, in 4 reality, is documents that may have come at different times. 5 Now, I think we need to separate them, call it 53-A, B and C, 6 whatever. But I want to know, for the purpose of my ruling, if 7 she got all of it at one time. 8 MR. HUBERT: All of it at one time, judge, all 9 attached and all set forth in these principal document making 10 reference to the other document -- 11 MR. ALMAND: Your Honor, I object to his testifying. 12 THE COURT: Yes, I agree. Only the witness can 13 testify, Mr. Hubert. 14 MR. HUBERT: Judge, I thought you directed the 15 question to me. I apologized. 16 THE COURT: Well, no, I was making a suggestion. I 17 was saying that I thought that it should be separated because it 18 was my understanding that it came at different times, and, of 19 course, you are not a witness, so I can't take what you say as 20 being evidence. So let's move on. 21 MR. ADERHOLD: That was the reason for my question and 22 if the court has identified that, I have nothing else. Thank 23 you. 24 MR. HUBERT: Judge, I must say that I think that the 25 question misinterpreted the testimony. Ms. Rivers has never 0021 1 testified -- 2 THE COURT: Well, you have got her on redirect. You 3 ask Ms. Rivers. 4 Q. (BY MR. HUBERT) Ms. Rivers, you have document 53 in front 5 of you on the witness stand; is that correct? 6 A. Yes, sir. 7 Q. Did you ever testify in this courtroom that those documents 8 were not attached together when you saw it and were separate 9 documents? 10 A. No. 11 Q. Do you believe that Mr. Aderhold misunderstood your 12 testimony? 13 A. Yes, yes, I saw this and it was together. I have seen 14 these things altogether, yeah. 15 Q. Did you receive them all together when you got them? 16 A. It is my understanding that I received them all together. 17 Mark Edwards sent these things to us, to the, a copy of these 18 things from Washington after he left. And after I talked to him 19 on the phone, it is hard to say, because I can't tell the 20 story. But -- 21 Q. All right. The question to you is a simple one, and that 22 is document 53, which you are holding, has attachments to it. 23 Does your recollection, and plumb your recollection for us, 24 please, ma'am, does your recollection admit of the fact that 25 they were received altogether or were they separately coming 0022 1 into your hands and you attached them later? 2 A. Together. 3 MS. BRAKEFIELD: Your Honor, I have just one follow-up 4 on recross. 5 THE COURT: All right. 6 RECROSS-EXAMINATION 7 BY MS. BRAKEFIELD: 8 Q. Ms. Rivers, you testified about the first part of No. 53 9 yesterday, that you received the carbon copy that was addressed 10 to the Middle Georgia Historical Society as its secretary. Do 11 you recall that testimony? The confidential memo from the 12 mayor. You testified you received that in your capacity at the 13 historical society; is that correct? 14 A. Yes, ma'am. 15 Q. When you received that copy at the historical society, were 16 or were not the attachments with it? 17 A. I'm going to have to read it for just a minute. 18 Q. That is fine. 19 A. I believe they were together. It has been a long time ago 20 but I believe they were together. 21 Q. So your testimony is today you believe they were, but are 22 you sure? 23 MR. HUBERT: Your Honor, I will object to that. She 24 implies that her testimony today, by the question, is different 25 from her testimony. Otherwise, she was on the stand yesterday 0023 1 afternoon, and I think the question should be stricken as an 2 argumentative question that misstates the fact. 3 THE COURT: No, I am confused myself as to what -- I 4 thought yesterday she testified that she got them at different 5 times. I guess only the court reporter can definitely solve 6 that, but -- 7 Q. (BY MS. BRAKEFIELD) My last question, Ms. Rivers, is, are 8 you sure the attachments were there when you received the first 9 copy of Mayor Marshall's memo? 10 A. When I received -- 11 MR. HUBERT: Asked and answered judge. 12 THE COURT: No, we are going to take a break. I'm 13 going to ask the court reporter to find her testimony from 14 yesterday so we can solve that. 15 MS. BRAKEFIELD: Thank you, your Honor. 16 THE COURT: All right, we'll be in recess. 17 MR. ADERHOLD: I believe I heard her say it this 18 morning, judge, that she had gotten them, that they were not 19 attached. I think it came in this morning's testimony earlier. 20 MR. ALMAND: It was yesterday. 21 THE WITNESS: Oh, okay, maybe -- 22 MR. HUBERT: Let me just say this, judge; she was on 23 the stand late yesterday afternoon and this matter was discussed 24 about Exhibit 53. That is when it first came up, that I know 25 of, and Exhibit 53 was attached the entire time. 0024 1 THE COURT: All right. Well, we are going to look 2 back and see what you can find. We will be in recess. 3 (Recess) 4 THE COURT: I don't believe, this is not a final 5 ruling but I don't believe this document is admissible under 6 either 806, 803-6 or 8. I'm having my law clerk do some further 7 research. But it is, under 803-6, the whole basis of 803-6 is 8 that business records are kept routinely, and without any 9 conscious decision about whether to keep the document or not 10 keep the document. The routineness of business records is what 11 makes them admissible, without any further authentication. The 12 witness' organization is not an addressee. 13 MR. HUBERT: Yes, sir, judge, it is a copy, they show 14 it to the historic society. Ms. Kitty, whatever her name is, is 15 the head of the historic society. Each one of those documents 16 is addressed to the historic society. This witness received 17 that document as secretary of the historic society. 18 And aside from that, judge, I just don't want the 19 court to be misinformed about that. In my opinion, your Honor, 20 the document does go as a matter of routine from the mayor's 21 office -- 22 THE COURT: Well, if she, if her organization is shown 23 as an addressee -- now, let's -- wait a minute. Okay. I do see 24 a copy to Kitty Oliver. 25 THE WITNESS: I am her secretary. 0025 1 THE COURT: Right. Okay. Well, I -- I did not, 2 yesterday, during the testimony, I did not get this. It was not 3 clearly established, to me, at least, maybe I missed something. 4 Now, let me ask a question regarding this. I'm 5 holding here a letter, a memorandum of, confidential memorandum 6 to Lonice Barrett, commissioner of the DNR and others from the 7 mayor, Jim Marshall, regarding a letter from Mark Edwards, 8 director of the State Historic Preservation Office. The date of 9 this memorandum is March 1 of '99. 10 THE WITNESS: Yes, sir. 11 THE COURT: This shows a copy -- 12 THE WITNESS: It was sent -- 13 THE COURT: Don't get ahead of me. 14 THE WITNESS: Okay. 15 THE COURT: To Ms. Kitty Oliver of the Middle Georgia 16 Historical Society. 17 THE WITNESS: Yes, sir, I'm her secretary. That is 18 why I got them separately and together. That is why I was 19 confused. You see, the one that is dated September 1 -- 20 THE COURT: Wait a minute. You are getting ahead of 21 me. 22 THE WITNESS: Okay. 23 THE COURT: All right. So I think that this 24 memorandum is a business record, and the witness, as secretary, 25 would be able to authenticate it. 0026 1 Now, the letter dated November 13, 1998, to Mayor 2 Marshall from Lonice Barrett, a four-page letter that is right 3 behind this confidential memorandum, now -- 4 THE WITNESS: I don't have a copy of that one. 5 THE COURT: Well, you tell me when you received this. 6 THE WITNESS: Okay. Let's see -- all right. 7 THE COURT: Does your -- 8 THE WITNESS: This is, this was just out of my file. 9 I didn't have the official thing. 10 THE COURT: All right. 11 THE WITNESS: Okay. 12 THE COURT: The question I need to know -- 13 THE WITNESS: I got them, this one -- okay, let me 14 explain it to you. I got this, separately. 15 THE COURT: Wait a minute. You are ahead of me. 16 THE WITNESS: That was back in time, that is why I 17 keep going back to it, because it was the letter that was signed 18 by Mark Edwards and sent to me. So I got that, okay. That was 19 September 1. Then I got one on September 1st. This came and 20 then this came and then this letter from the mayor, this 21 confidential memo came. But then these were attached to it. So 22 I got them separately and attached. 23 THE COURT: But separately, you got -- 24 THE WITNESS: Separately I got each of them. As 25 secretary I got this. It was sent to me, and this -- little 0027 1 blurred, but that is me right there. And then later on, you see 2 the mayor attached them and sent them. That is why I was 3 getting confused. 4 THE COURT: Well, they do, Mr. Almand, they do show 5 that a copy of each of these documents went to Middle Georgia 6 Historical Society, and if they received them in the normal 7 course of mail, then it seems to me like they could be a 8 business record. 9 MR. ALMAND: May it please the court, the Business 10 Records Act includes more than the fact that a business office 11 received a letter. There are other requirements under the 12 Business Records Act. I have not seen a showing that is 13 mandated by -- 14 THE COURT: All right -- 15 MR. ALMAND: -- the Business Records Act. 16 THE COURT: Let -- go ahead. 17 MR. ALMAND: -- are that the declarant and the records 18 had knowledge to make accurate statements. That is showing that 19 has got to be made. That the declarant reported statements 20 contemporaneously with the actions which were the subject of the 21 reports that, the declarant made the record in the regular 22 course of the business activity and that such records were kept 23 regularly by the business. 24 Now, if you look at this memo from Mayor Marshall, I 25 find that most interesting. Because in the third paragraph of 0028 1 the memo, that is the first memo on the exhibit, it says, I 2 attach a copy of a letter that was never sent. It is dated 3 November 13th and addressed to me with copies to most of you. 4 Now, if the letter was never sent, your Honor, then 5 there is no way that that is a letter that was sent and received 6 in the regular course of business . 7 THE COURT: But let me say this: It is not whether 8 Mayor Marshall sent it or received it. It is whether or not the 9 Middle Georgia Historical Society sent it or received it. 10 MR. ALMAND: No, your Honor, the letter he is 11 referring to is a letter of November 13th. That letter is 12 addressed to Mayor Marshall and it was signed by Mark Edwards. 13 THE COURT: All right. 14 MR. ALMAND: And what it says is, I will attach a copy 15 of a letter that was never sent. Now, if Mr. Edwards never sent 16 that letter to Mayor Marshall -- 17 THE COURT: Well, let me ask you this: How did Mayor 18 Marshall get it if he never sent it? 19 MR. ALMAND: Your Honor, what I understand, after 20 Mr. Edwards left the office and went to Washington he mailed 21 copies to everybody. It has got to be sent in the regular 22 course of business, not just bootleg copies sent, or after you 23 quit your job. There has got to be testimony that establishes 24 all of that, and we have not heard any testimony other than this 25 witness, that is rather confused, that as secretary to the Macon 0029 1 Historical Society these letters came to her office. It just 2 takes more, under the business records act. 3 THE COURT: 803-6, a memorandum report, record, et 4 cetera, of any act, et cetera, made or near the time by and from 5 transmitted by a person with knowledge, if kept in the regular 6 course of regular conducted business activities, and if it was a 7 regular practice of that business activity to -- 8 The business that is at issue here is Middle Georgia 9 Historical Society. And if Mr. Hubert can touch the bases on 10 number 6, and you have to establish each item of number 6, I am 11 going to admit it. Okay. 12 Q. (BY MR. HUBERT) Ms. Rivers, do you receive, in the 13 ordinary course of business at the historical society, letters 14 from public officials dealing with historic preservation issues? 15 A. Sure, yeah. 16 Q. And in each case there is a reference on P-53. Do you have 17 P-53? 18 A. I just have my copy. 19 Q. With reference to your copy? 20 A. Okay. 21 Q. On the second page there, under where it says, mayor's 22 secretary notes? 23 A. Yes, sir. 24 Q. It shows there, it shows Ms. Kitty Oliver with the Middle 25 District of Georgia Historical Society, and the secretary's note 0030 1 says that she attaches other letters from the mayor. 2 How and in what way did you get those letters? 3 A. That is how I got it together. I was just saying to the 4 judge here -- 5 THE COURT: Mr. Hubert, this is getting unnecessarily 6 complicated. What you need to do -- each one of these letters 7 shows the historical society as a recipient, by copy. What you 8 need to do is follow the requirements of 803-6 and deal with 9 each of these letters. This business of whether they were 10 attached together or not attached together is irrelevant, if 11 they received them individually. 12 Q. (BY MR. HUBERT) You received each of these letters in the 13 ordinary course of business. Were they kept in a file 14 established for the historic records? 15 A. Yes, sir. 16 Q. And do those files, are they maintained in a regular course 17 of business? 18 A. Yes. 19 Q. For the business of the historical society? 20 A. Definitely. 21 Q. Is there any reason whatsoever that you have to suspect 22 that these letters are in any way out of the ordinary or not 23 contain any information that is not given to you strictly in the 24 ordinary course of business? 25 A. No, they just seem like ordinary letters like would he get 0031 1 all the time. 2 Q. Anything that indicates that they should be received with 3 suspect information or a source of information that is -- 4 THE COURT: You are getting far afield. Mr. Hubert 5 you are just making it more complex. 6 Listen to me. Ms. Rivers. 7 THE WITNESS: Okay. 8 THE COURT: You have testified they were kept in the 9 regular course of business and it was the regular practice of 10 your, the historic society to keep these documents, right? 11 THE WITNESS: Yes, sir. 12 THE COURT: All right. Who is the custodian of these 13 documents? 14 THE WITNESS: Myself and Kitty Oliver. 15 THE COURT: All right. I think that they are 16 admissible under 803-6. The question, there is one word in 17 803-6 that says, unless the source of information or the method 18 of circumstances of preparation indicate lack of 19 trustworthiness. That may go to Mr. Almand's objection to the 20 one letter that says this is a letter that was never sent. I'm 21 just going to have to to deal with that and see -- it may be 22 that it does not meet the test of trustworthiness. But I'm 23 going to leave that open for now. Let's move on. 24 MR. ALMAND: May it please the court, may I make one 25 additional objection? That is just a pure old question of 0032 1 relevance. We are here today about Houston Road. Those letters 2 do not deal with Houston Road. 3 THE COURT: Well, see, I won't know that unless I read 4 them, and if they are not admissible I'm not going to read 5 them. I am the fact-finder and -- 6 Q. (BY MR. HUBERT) Does this property deal with Houston Road? 7 A. In this, this, this deals with the program. And Houston 8 Road is part of the road improvement program. So, yes. 9 Q. Does it deal with Heard School on Houston Road? 10 A. In that way it does. Because it is showing improprieties 11 in the system. 12 Q. The Hampton House, is Hampton House on Houston Road, did it 13 deal with Hampton House? 14 A. In that way it does, sir. 15 Q. Have you talked to Mark Edwards before, during and since 16 these letters were sent? 17 A. Yes. I have talked to Mark Edwards many times. 18 Q. Don't go into his conversation, but you have talked to him? 19 A. I have talked to him. 20 Q. Is there anything in your conversation with Mark Edwards 21 that indicates that the substance of these letters were 22 untrustworthy in any way? 23 MR. ALMAND: Your Honor, that is hearsay. 24 THE COURT: It is hearsay. Objection sustained. 25 MR. HUBERT: Comes in as an exception, because it 0033 1 would deal with an admission against interest. 2 THE COURT: I sustained the objection to the 3 question. 4 MR. HUBERT: That is all I have of this witness, your 5 Honor. 6 THE COURT: All right. 7 MR. ALMAND: Nothing further from the county and city, 8 your Honor. 9 THE COURT: All right. You may go down. 10 MR. HUBERT: Please come down. 11 THE COURT: Call your next witness. 12 MR. HUBERT: Your Honor, we would call -- would you go 13 get Mayor Marshall. I subpoenaed Mayor Marshall, judge, in the 14 interest of clearing some of this up, and he has agreed to 15 appear this morning. 16 THE COURT: All right 17 18 JAMES CREEL MARSHALL, 19 having been first duly sworn, was examined and testified as 20 follows: 21 DIRECT EXAMINATION 22 BY MR. HUBERT: 23 Q. Mr. Mayor, I'm Richard Hubert. I don't believe we have met 24 except this morning, and I would like for you to introduce 25 yourself to the court, please. 0034 1 A. I am Jim Marshall. 2 Q. All right, would you spell your full name for the record. 3 A. J-A-M-E-S, C-R-E-E-L, M-A-R-S-H-A-L-L. 4 Q. All right. Where do you reside? 5 A. 586 Orange Street, Macon, Georgia. 6 Q. And were you recently mayor of the City of Macon? 7 A. I was. 8 Q. Yes, sir. Do you hold that office today? 9 A. No, I don't. 10 Q. What are you doing today, sir? What is your occupation or 11 profession today? 12 A. Well, I'm looking around for a job. 13 Q. I understand. 14 A. No, I teach at Mercer University. 15 Q. And what do you teach at Mercer, sir? 16 A. Law. 17 Q. All right, sir. And could we know what particular subjects 18 of the law school you teach? 19 A. Now or in the past? 20 Q. Well, today is what we are interested in? 21 A. Well, the school is not in session at the moment. I will 22 be teaching a court called Advising Small Businesses, this 23 spring. 24 Q. All right. Now, Mr. Mayor, may I ask you to look at a 25 document which I believe has been previously exhibited to you as 0035 1 Plaintiffs' Exhibit 53: 2 I will ask you, sir, to examine the document and tell me if 3 you are familiar with the document? 4 A. Yes, I am. 5 Q. All right. As relates to the first document that indicates 6 that you, it is under the name of a confidential memorandum. 7 Who is the author of that document, please? 8 A. I am. 9 Q. All right, sir. Can you tell me, did you dictate this 10 document in an airplane? 11 A. My recollection is that I dictated it as I was driving to 12 the airport to Atlanta in my truck. 13 Q. Okay. 14 A. And I just dictated it to my secretary, who typed it as I 15 dictated it. 16 Q. Were you on the telephone? 17 A. Yes, I was. 18 Q. Okay. There -- 19 A. That is my recollection. 20 Q. There shows some copies here to Justice, Shipping, Battin 21 and Oliver. Did you ask that those copies be sent to those 22 people or was that a matter of routine and in the normal course 23 that they got copies of this kind of correspondence? 24 A. No. This memorandum was not intended to be sent to Bo 25 Shipping, Maryel Battin or Kitty Oliver. It was intended to be 0036 1 sent to Larry Justice as a member of the executive committee of 2 the road improvement program. The memo is addressed to Lonice 3 Barrett, commissioner of DNR, Ben Porter, who I think at that 4 time was the chairman of DNR, executive committee members of the 5 road improvement program, and there, at that time, there were 6 five individuals who were executive committee members. I was 7 one. Van Ethridge who was and is the local manager for the road 8 improvement program. John Comer, Joe Popper who were attorneys 9 for the road improvement program, and Pope Langstaff was the 10 city attorney. Those were the only individuals who were 11 supposed to get a copy of this. 12 Q. And can you explain, then, how these copies were sent to 13 these people? 14 A. It was only after I returned from our trip that I 15 discovered that this memorandum had been sent to additional 16 individuals. And it was simply a mistake that was made by my 17 secretary. 18 As I recall, she explained that she copied the individuals 19 who were listed as, as, to be copied. The individuals who were 20 listed somewhere in another letter that were receiving copies of 21 the other letter. I think the letter that she was referring to 22 was Mark Edwards' letter to me. Some letter to me by Mark 23 Edwards. 24 Q. All right. Is there anything in the first letter, a 25 memorandum that you dictated, addressed to Barrett, Porter, 0037 1 Ethridge, Comer, Popper and Langstaff that is in error, 2 incorrect or subsequently you discovered is not accurate, sir? 3 A. I read this this morning, after you gave me a copy of it, 4 and I didn't see anything in it that, to me, seemed inaccurate. 5 Q. Would you explain to the court how you came to possess the 6 letter dated November 13, 1998, addressed to you from Mark R. 7 Edwards, that appears without signature on document P-53? 8 A. I had received some prior correspondence from Mark Edwards, 9 who was, at that time, the executive director or director, I'm 10 not quite sure what his title was, of the Historic Preservation 11 Division of the Department of Natural Resources. That letter 12 had said that he and his department were concerned about the 13 impact of the road improvement program on historic properties. 14 I can't recall the details other than that. It was something to 15 that effect. And that he and his department would volunteer 16 their services to the road improvement program and the City of 17 Macon to assist us in evaluating the impact of the road 18 improvement program on historic properties. 19 I sent a letter back to him saying that we certainly, we 20 being the road improvement program and the city, we certainly 21 intended to be sensitive to those kinds of issues and that if 22 his department could offer us some assistance, we would 23 certainly welcome that assistance. And that I thought probably 24 the best way to proceed would be for him to speak directly with 25 Van Ethridge about these issues, and that perhaps he and Van 0038 1 Ethridge, or he and whoever, Van, should decide to get together 2 to discuss the issues. 3 So I sent that letter back with copies to the road 4 improvement program members and others. There was nothing 5 secret about that. 6 Sometime shortly before this memo was dictated, I received 7 a telephone call from Jack Samons, who is a professor at Mercer 8 University who has been interested in the road improvement 9 matters. He said he had talked with Mark Edwards and that Mark 10 Edwards had told him that he had authored a letter to be sent to 11 me that he was not permitted to send, and that that had prompted 12 his resignation from DNR. 13 Q. Did he say who had directed him not to send the letter? 14 MR. ALMAND: Your Honor, that is hearsay. 15 THE COURT: Pardon? 16 MR. ALMAND: That is pure hearsay. 17 THE COURT: It is hearsay. 18 MR. HUBERT: Your Honor, it comes in -- 19 THE COURT: Mr. Hubert, we, it is, the truth of the 20 matter is what is at issue here. The conversation is hearsay. 21 Objection sustained. 22 MR. HUBERT: Your Honor, may I speak to that just a 23 moment? My position is that this explains the course of 24 conduct. Therefore, it comes as an exception to the hearsay 25 rule. It is an admission against interest. That is, it, under 0039 1 either one of those, and it explains the public record as well. 2 THE COURT: You know, it seems to me that if the only 3 basis for an admission against interest, that that would not 4 make it admissible in spite of being hearsay. It can show 5 subsequent conduct. If you, if the witness would base it on, 6 say, because of this conversation I did thus and so, that is 7 classic hearsay. 8 MR. HUBERT: Your Honor, the document, we have 9 established is admissible. What I want to do is let this 10 witness explain a course of conduct in connection with the 11 document, which I think is important for the court to 12 understand. I believe this does. 13 THE COURT: Well, he can rely on the, on this 14 conversation only to the extent that it is necessary to show 15 subsequent conduct. 16 MR. THOMASON: We would object to it because it is 17 also irrelevant, because it is the Secretary of the United 18 States Department of Transportation and Federal Highway, the 19 only proper defendant here, against whom any admission or 20 anything else in the hearsay exception would be important. 21 If he wants to chase our tails to some other defendant 22 who is not, for whom the court does no have jurisdiction, we can 23 spend a whole lot of time doing that, but it is not the least 24 bit relevant to any decision you are required to make, whether 25 the secretary, environmental document is adequate, under our 0040 1 regulations. 2 The internal workings of the government of the State 3 of Georgia is hardly relevant to the inquiry this court has to 4 make. 5 MR. ALMAND: Judge, additionally, I, Mr. Hubert said 6 we have already established admissibility of this letter. That 7 is the one issue the court has reserved for ruling, is the 8 admissibility of the 1113 letter. We have not established that 9 as Mr. Hubert says. 10 Further, your Honor, admission against interest goes 11 to a party. The Department of Natural Resources, Mark Edwards 12 or Lonice Barrett are not parties to this case. Therefore, it 13 can, under no stretch of the imagination, be an admission 14 against interest. 15 And the explanation on conduct; only unless the 16 testimony is needed to explain the conduct, now, can you admit 17 hearsay. Then only for limited purposes. And I would suggest 18 to the court that in terms of explaining conduct, we know that 19 Mayor Marshall wrote the letter because of a conversation. That 20 is all that was necessary. We don't have to go into the details 21 of the conversation or of the letter to explain the conduct of 22 Mayor Marshall in writing the letter. He has explained why he 23 wrote it. That is all that is necessary. That is not an issue, 24 it is not in contention why he wrote it. 25 MR. HUBERT: The mayor can only respond to a question 0041 1 put to him when he is asked to explain what caused a certain 2 event to take place. 3 Now, judge, first of all, in response to this, we are 4 dealing with agents, representatives and persons assigned to do 5 certain things in connection with the environmental documents in 6 this case. And there is an agency relationship that means that 7 what they do is in fact the act under a basis of agency and 8 respondeat superior to the government. 9 THE COURT: Well, you make quite a leap with that 10 statement. I mean, you have got to show that, you know, you 11 have got to prove the agency. I'm just not at all comfortable 12 in making a ruling that makes the DNR, head of the DNR or, much 13 Mr., the other gentleman. 14 MR. HUBERT: Mark Edwards, who is State Historic 15 Preservation Officer, a part of the DNR, yes, sir. 16 THE COURT: I am willing to hear testimony regarding 17 what some of these people said, but I'm not going to admit it as 18 an admission against any party in this case. Because they are, 19 I think Mr. Almand's observation is correct. It is not a 20 party. 21 The objection is sustained. Let's move on. 22 Q. (BY MR. HUBERT) Mr. Mayor, if you will, without going into 23 the substance of the conversation with Mr. Russell, only to the 24 extent that it actually explains your conduct and how you dealt 25 with it on a limited basis; would you tell us how you came to be 0042 1 in possession of this document and what you did with the 2 document, which is attached to P-53, as the November 13, 1998 3 letter? 4 A. Now, you referred to my conversation with Mr. Russell. You 5 mean Mr. Samons? 6 Q. I'm sorry. I misspoke myself. Mr. Edwards, Mark Edwards, 7 yes, I believe that was a reference to -- 8 A. Well, I did have a conversation with Mark Edwards. At the 9 time that Mr. Almand objected I was referring to my conversation 10 with Jack Samons, and I was about to say what Samons said 11 Edwards said. 12 Q. Okay. Double hearsay. 13 A. Right. 14 Q. I understand. Without going into that, then, except to 15 explain your course of conduct. 16 A. Well, in any event, as a result of my conversation with 17 Professor Samons, I wound up talking with Mark Edwards who was 18 then in Washington. And I'm not quite sure exactly what you 19 want me to say about my conversation with Mark Edwards, except 20 that I was startled and alarmed by what he had to say. I took 21 notes. 22 This was the afternoon before or the day, the very day that 23 we were leaving. And I drove to, as I was driving to Atlanta I 24 was doing a lot of different things before getting on the 25 plane. And among those things, I dictated this memo using notes 0043 1 that I had jotted down from my conversation with Mark Edwards. 2 Because I thought it was something that individuals to whom the 3 memo was addressed needed to know. I thought it was something 4 that was going to come up. 5 Q. And the omission of certain historic information and the 6 apparent refusal of the department to let the, Mark Edwards send 7 the letter; did that bother you and concern you, sir? 8 MR. ALMAND: May it please the court, that is getting 9 right back into the hearsay, again. 10 THE COURT: Well, the question about the refusal of 11 the department to let him send the letter. Where does that 12 information come from? 13 MR. HUBERT: I believe it is alluded to in the letter 14 itself, judge. I mean, the question is what kind of misconduct 15 went on here, and what kind of bad faith was shown in the 16 formulation of the historic documents that should have been -- 17 THE COURT: Well, you know, there are witnesses who 18 have firsthand knowledge of it, of these events. But I'm just 19 not sure that Mr. Marshall is in a position to testify regarding 20 these events, unless he gives hearsay. 21 MR. HUBERT: Mr. Marshall was the author of this 22 letter in which he talks about, judge, something that concerns 23 him about this process. He brought it to the attention of the 24 authorities that should have corrected it. 25 THE COURT: Well, the letter is -- is this the one 0044 1 that says that it was, should not, was never sent? 2 MR. HUBERT: Yes, sir. Well, this is the memo which 3 refers to the letter that says it was never sent. 4 THE COURT: I have admitted all of this into evidence 5 as a business record, as received by the Middle Georgia 6 Historical Society, as one of their business records, over the 7 objection of the defendant, who says that it, that I should have 8 relied on the mayor's office and the business in question. 9 The only thing that gave me any pause in this was the 10 further 803-6 that deals with trustworthiness. And Mr. Marshall 11 has said, I don't have -- you know, one of the things that I 12 usually get is a separate set of all the documents. In fact, I 13 think Ms. Donihoo notified everybody to that. I don't have the 14 documents, so I have to borrow documents from everybody. 15 Let me see -- I attach a copy of a letter that was 16 never sent. And I mean, you know, what I would like to know is 17 what the mayor knows about this document that can help me 18 resolve the trustworthiness question of this November 13th 19 letter. But I'm not -- I'm not going to let him go behind the 20 letter and testify what somebody told him about what he really 21 meant about the letter, or whatever. 22 MR. HUBERT: It is precisely, your Honor, that course 23 of conduct. And the motive for the course of conduct -- 24 THE COURT: I'm not going to let you do it. 25 Q. (BY MR. HUBERT) All right. Tell me what you did, Mr. 0045 1 Marshall. 2 A. After talking with Professor Samons, I asked Professor 3 Samons if he had a copy of the letter that Professor Samons 4 referred to, which is the letter the judge is referring to 5 attached to this memo. Professor Samons said yes, he did. I 6 said, may I have a copy of it? He said, I will have to check 7 with Mr. Edwards to determine whether or not you can have a copy 8 of it. 9 I think either Mr. Edwards or Mr. Samons faxed a copy of it 10 to the mayor's office. And then I had a conversation with 11 Mr. Edwards about that letter. At the time I had the 12 conversation with Mr. Edwards about the letter that we refer to 13 now as having never been sent, which is two or three pages long 14 and is attached to this memo -- 15 Q. November 13th letter. You might need to refer to the 16 document the judge just gave you back. 17 A. I will try to make this as clear as I can. At the time I 18 had my telephone conversation with Mr. Edwards, I had not had an 19 opportunity to go through the November 13, the document dated 20 November 13th referred to as the letter that was never sent. I 21 hadn't had an opportunity to read it in any detail. It is 22 fairly lengthy. But I did talk to Mr. Edwards about this 23 letter. And he confirmed that he had drafted it and that he had 24 been told not to -- 25 MR. ALMAND: May it please the court, that is the 0046 1 hearsay I'm objecting to. 2 THE COURT: I'm not sure that is hearsay. It is a 3 conversation that the witness had with someone. He was as, he 4 was a party to this conversation. And the objection is 5 overruled. 6 MR. ALMAND: May I be heard, your Honor, on that? 7 THE COURT: Yeah. 8 MR. ALMAND: The classic definition of hearsay is 9 repeating the comments of someone that is not present in the 10 courtroom to testify about that themselves. So Mayor Marshall 11 is testifying -- 12 THE COURT: A conversation of what somebody told him 13 outside the courtroom about some other event. This is the 14 event, is the conversation he had with Mr. Edwards. 15 MR. ALMAND: May it please the court, it is not, 16 hearsay, is not about some other event. It is about the 17 conversation with someone outside the courtroom. And this is 18 classic hearsay when he says, I talked to Mark Edwards a year 19 ago and he told me. 20 THE COURT: But he is not -- I will allow him to 21 testify about his conversation with Mark Edwards. If Mark 22 Edwards, now, when he gets into what Mark Edwards told him about 23 some other event, then you get into hearsay. But his 24 conversation -- he can testify about his conversation with Mark 25 Edwards as good as Mark Edwards can testify about his 0047 1 conversation with the mayor, if Mark Edwards was on the stand. 2 MR. ALMAND: Well, your Honor, then it does get into 3 some other event because he was fixing to say -- 4 THE COURT: I have already ruled. Let's move on. 5 Q. (BY MR. HUBERT) All right, sir, just tell us about the 6 conversation with Mr. Edwards that prompted you to do some act 7 or referring from doing some act? 8 A. The best evidence that I can think of concerning my 9 conversation with Mark Edwards, is what I wrote, or what I 10 dictated, rather, in this memo dated March 1, 1999, which is 11 listed as Plaintiffs' Exhibit 53. I dictated this memo very 12 shortly after I had finished the conversation with Mark Edwards, 13 and I used some handwritten scribbled notes in order to, in 14 order -- wherever there are quotes in here about what Mark 15 Edwards said to me, those quotes came from handwritten notes 16 that I had taken during our conversation. 17 Q. Do you, by chance, have those notes today? 18 A. No. 19 Q. You know where they are? 20 A. Oh, I'm sure they are in some recycled bin, you know. By 21 now, hopefully, some new paper somewhere. 22 Q. Very well. Let's conclude by letting me ask you the, there 23 is a letter dated September 10, 1998, attached to this document 24 P-53 which purports to be a letter from you. I would like for 25 you to examine that letter and tell us if you are the author of 0048 1 that letter and was it directed to Mr. Mark Edwards? 2 A. Yes, I was the author of this. That is my signature. And 3 this is a letter that I sent to Mark Edwards. I referred to 4 this letter earlier as my reply to a letter that he had sent to 5 me. And in this letter I invite him to get to together with Van 6 Ethridge to move the process forward with him helping with us 7 with the historic impact analysis. 8 Q. Tell us in a few well chosen sentences, Mr. Mayor, exactly 9 what was the purpose of, what was this endeavor all about that 10 prompted P-58 and the attachments attached to it. Excuse me, 11 P-53 and attachments attached. 12 A. What do mean by that, endeavor. The road program 13 generally? 14 Q. Yes. I'm trying to get just what was your intent, 15 motivation and purpose. 16 A. In preparing this memorandum that was dictated by me on the 17 way to the airport and sent to Lonice Barrett, Ben Porter, 18 executive committee members, our lawyers and our manager; what 19 was my purpose in doing that? 20 Q. Yes. 21 A. I was concerned about what I had learned from Professor 22 Samons and then Mr. Edwards, and I wanted other members of the 23 road improvement program and Commissioner Barrett and Mr. Porter 24 and our lawyers to know what Mr. Edwards had said to me. 25 Because I specifically asked Mr. Edwards if he, was he saying 0049 1 this to other people. And the answer was yes. And I said, if 2 you were called to testify, would you say the same thing. He 3 said, yes. So I thought our lawyers and the key players needed 4 to know what Mr. Edwards was saying. I thought that was 5 important. 6 Q. Thank you, Mr. Mayor. 7 MR. HUBERT: He is with you. 8 CROSS-EXAMINATION 9 BY MS. BRAKEFIELD: 10 Q. Professor Marshall, my name is Cathy Cox-Brakefield. I'm 11 Senior Assistant Attorney General for the State of Georgia, and 12 I represent the Georgia Department of Transportation in this 13 case. And I have just a couple of short questions for you 14 First of all, Professor Marshall, there are no copies, 15 there are no addressees on any of these letters that are either 16 Georgia Department of Transportation officials or Federal 17 Highway Administration officials, are there? 18 MR. HUBERT: The document speaks for itself, your 19 Honor. It is a hearsay objection, I mean a best evidence rule. 20 THE COURT: I think he can go ahead and answer the 21 question. 22 A. DOT -- 23 Q. (BY MS. BRAKEFIELD) Georgia Department of Transportation 24 or federal highway officials, are any of them listed as either 25 addressees on copies on any of these letters? 0050 1 A. I don't know the relationship between DNR and DOT 2 concerning historic preservation matters, analysis, that sort of 3 thing. So I don't, I can't, there is some sort of bleed-over 4 between the two. But I don't see anybody listed here that as 5 addressees or, I see the National Park Service. But I don't see 6 anybody listed here that I know to be an employee of DOT, either 7 federal or state. 8 Q. Thank you. I take it by your comments prior to your 9 response to my question, that you are not aware of what the 10 relationship or possible bleed-over might be from DNR to the 11 state DOT? 12 A. No. 13 Q. That therefore you would have no direct knowledge of 14 whether or not anyone at DOT ever received is this document. 15 The Georgia DOT. 16 A. That is correct. 17 Q. And, finally, I would ask you to take all the time you need 18 to do this, Professor Marshall; there are a number of road 19 projects that are mentioned by name throughout each of these 20 letters. Would you please look through the documents and tell 21 me whether or not the Houston Road Project, which was a Bibb 22 County project, as I understand stand it, and not within the 23 city limits, and correct me if I'm wrong about that; is that 24 project anywhere in any of these documents mentioned by name? 25 Take all the time you need to do that. I know you may need a 0051 1 moment. 2 A. This may be the first time -- well, okay. It is mentioned 3 by name as opposed to just general references to the road 4 improvement project program. 5 Q. Yes, sir, that is my question, mentioned by name. Or let 6 me add to that; is there any historic property that, to your 7 knowledge, is located on Houston Road, among the historic 8 properties that are referenced? 9 A. Edwards' letter references having met with representatives 10 of Moreland Altobelli and Intown Macon Neighborhood Association 11 individuals, as well as the executive director of the Heritage 12 Foundation. Those are not individuals that had actively been 13 involved in the Houston Road stuff. 14 Q. Have you completed your review of the document? 15 A. I am not as quick as you. 16 Q. That is fine. Take all the time you need. 17 A. The letter appears, Edwards', the letter that was never 18 sent, appears to be referring principally to the Intown Historic 19 District and the impact of the road improvement program upon 20 that historic district. It talks generally about the impact of 21 roads programs on historic resources. I don't see a reference 22 to Houston Road or historic resources along Houston Road in that 23 letter. 24 Q. So the answer to my question is, no, there is no reference 25 by name to Houston Road; is that correct? 0052 1 A. I need to look at the September 1 -- 2 Q. That is fine. Go right ahead. 3 A. There is no specific reference to Houston Road. 4 Q. In any of the documents; am I right? 5 A. That is right. 6 Q. Thank you, Mr. Marshall. 7 MS. BRAKEFIELD: Your Honor, based on this witness' 8 response to my questions on cross-examination, I would move to 9 strike this witness' entire testimony and P-53 in its entirety 10 as being irrelevant to this case. 11 This issue before this court is a question of specific 12 responses to the environmental process on the Houston Road 13 Project, which this testimony and this document has no bearing 14 on. It is regarding projects within the City of Macon, which is 15 a different jurisdiction than Bibb County where this project is 16 located. It is not directed to any Bibb County official. The 17 witness has no information that this was ever presented to the 18 federal or state departments of transportation, and it has no 19 bearing on the court's decision in this case. Thank you. 20 THE COURT: I will take that motion under advisement. 21 Move on. 22 MR. THOMASON: For the record, I said for the record, 23 may the secretary also be heard as joining in with the state's 24 motion? 25 THE COURT: Maybe it would be appropriate, Mr. Hubert, 0053 1 you want to speak to that before we go on with 2 cross-examination? 3 MR. HUBERT: I do, your Honor. And that is if, I may, 4 I intend to ask this witness about a person called Mark Ethridge 5 on redirect examination, with Moreland Altobelli. Moreland 6 Altobelli is -- Van Ethridge, excuse me. Moreland Altobelli is 7 the agents for the DOT, which in turn is the agent for the 8 Federal Highway Administration for the compilation and 9 development of this environmental assessment. 10 And it is all of a straight line progression. This is 11 a roads program, your Honor, which includes one of the things, 12 the relevancy is -- 13 THE COURT: You're too close to that microphone now. 14 MR. HUBERT: I'm sorry, sir. The relevancy is that 15 there is -- we contend that this is a global problem; that it 16 should have been addressed globally. And it is relevant to your 17 decision as to whether or not it will be a segmented or global 18 analysis that is required. 19 THE COURT: Let me say, I do think that this is an 20 issue that I'm going to have to deal with eventually in this 21 case, is, on the one hand you say that I should take all of the 22 different projects under the roads program as a whole, and the 23 defendants say no it should be considered, Houston Road Project 24 should be considered separately from the others. And there is 25 no sense in us getting into any argument on that today, because 0054 1 we, there will be plenty of time for that. But I'm just parking 2 that information on the back side of my mind and leave it there, 3 and we don't need to deal with it. I will put it out. Okay. 4 So let's go ahead. 5 CROSS-EXAMINATION 6 BY MR. ALMAND: 7 Q. Mr. Marshall, if I understood you correctly, is, you 8 learned that the letter of November 13th, the letter that was 9 never sent, in a phone, in a conversation you had with Jack 10 Samons? 11 A. That is my recollection, yes. 12 Q. And Jack Samons is a law professor at Mercer University? 13 A. That is right. 14 Q. He was not, at that time, employed by either the state or 15 federal or city government? 16 A. I don't think so. 17 MR. HUBERT: Your Honor, excuse me. I object to that 18 on the grounds of competency. There is no basis or foundation 19 laid that this witness is competent to know how Mr. Samons is 20 employed in each and every aspect of his professional life. 21 THE COURT: I mean, that is a matter for redirect. It 22 seems to me that he is a professor at the law school, Mr. Samons 23 is a professor at the law school. He may well know. Go ahead. 24 Objection overruled. 25 Q. (BY MR. ALMAND) All right. Now, you, as regards the 0055 1 November 13th letter, you said that you received it, either from 2 Mark Edwards or from Mr. Samons, but you are not sure which one 3 of them sent that to you; is that correct? 4 A. I don't have a clear recollection of whether it was Jack 5 Samons or Mark Edwards who sent the letter. I have a clear 6 recollection of my conversation with Mark Edwards about the 7 letter. 8 Q. Now, this conversation with Mark Edwards took place 9 somewhere around March 1 of 1999, the date of your memo; is that 10 correct? 11 A. That is correct. 12 Q. Now, the letter of November 13th was dated, well, it is 13 dated November 1998, some four months after the purported date 14 of the letter. 15 A. Pardon me? 16 Q. I guess I was making an observation more than asking a 17 question? 18 MR. HUBERT: I believe, your Honor, that the witness 19 is entitled to a question not a statement. It prompts the 20 witness. 21 THE COURT: That is right. 22 MR. HUBERT: But it is improper. 23 THE COURT: I know, but he caught it and he attempted, 24 I think he was in the process of correcting it. 25 MR. ALMAND: I was, your Honor. 0056 1 THE COURT: Go ahead. 2 Q. (BY MR. ALMAND) Now, Mr. Marshall, in, was it your 3 understanding, in March, or about March of 1999, Mr. Edwards was 4 in Washington, D.C. at that time? 5 A. He was in Washington. I called him there. 6 Q. Right. And he was no longer an employee, to your 7 knowledge, of the Department of Natural Resources, was he? 8 A. He specifically said he was not. 9 MR. ALMAND: Well, your Honor, based on this testimony 10 I would make a move, then, to exclude 53 because, particularly, 11 that letter of November 13th, because based on this, it is not a 12 business record that was sent in the normal, ordinary course of 13 business as the rule requires. 14 Mr. Edwards, at the time, was a nonemployee in 15 Washington that had a letter that was never sent, and at a 16 request, either he or Mr. Samons or somebody, sent that letter 17 to Mayor Marshall. 18 Now, under any stretch of the imagination, that would 19 not qualify under the Business Records Act. 20 THE COURT: Well, that is the one that says this 21 letter was never sent. Isn't that correct? 22 MR. ALMAND: Yes, sir, that is the November 13th 23 letter, your Honor. 24 THE COURT: All right. Yeah. That is the one that I 25 reserved ruling on because of the trustworthiness requirement. 0057 1 And I'm still reserving ruling. 2 MR. ALMAND: Okay 3 REDIRECT EXAMINATION 4 BY MR. HUBERT: 5 Q. Mayor Marshall, did you understand that the letter drafted 6 by Mr. Mark Edwards was drafted while he was an employee of the 7 Department of Natural Resources, the division dealing with 8 historic preservation and historic -- was he assistant of the 9 historic preservation officer at that time? 10 A. He was the director of the historic preservation division 11 at the time he drafted the letter. 12 Q. Thank you, sir 13 RECROSS-EXAMINATION 14 BY MR. ALMAND: 15 Q. One further follow-up question. He did not send that to 16 you as Mayor of Macon while he was head of the director of 17 historic preservation, did he? 18 A. No, he didn't send it to me at that time. 19 MR. ADERHOLD: No further questions. 20 MR. HUBERT: Your Honor, the letter was never sent, 21 and we know the reason why it wasn't sent. 22 THE COURT: Well, I understand that the mayor got the 23 letter through other sources, and after the conversation with 24 Mr. Samons. 25 If there is nothing further, we'll excuse the mayor. 0058 1 MR. HUBERT: Mr. Mayor, you may be excused with my 2 thanks, sir. 3 THE WITNESS: Thank you. 4 THE COURT: Call your next witness. 5 MR. HUBERT: At this time we would call Ms. Varnadore 6 7 DEBORAH L. VARNADORE, 8 having been first duly sworn, was examined and testified as 9 follows: 10 DIRECT EXAMINATION 11 BY MR. HUBERT: 12 Q. Ms. Varnadore, would you state your full name and spell it 13 for the court reporter, please? 14 A. Deborah L. Varnadore. V-A-R-N-A-D-O-R-E. 15 Q. All right, where do you reside, please? 16 A. 6671 Crisswood Drive. 17 Q. And can you tell me what relationship is your house in 18 terms of geographical description to Houston Road? 19 A. My house is east of Houston Road, down stream. 20 Q. Can you tell me what your concern has been as relates to 21 the Houston Road Project? 22 A. My major concern is, I was afraid that if they widened 23 Houston Road to five lanes that I would get more drainage that, 24 at a faster rate of speed than I have been getting for the past 25 12 years. 0059 1 Q. Would you explain to the court, exactly what the nature of 2 the concern is in terms of your past activity with the drainage 3 issue? 4 A. Well, I have gone to various meetings concerning drainage. 5 I met with county officials, DOT, Federal Highway 6 Administration. I have met with county commissioners. I have 7 talked to people at EPA, just anybody that I could talk to that 8 would listen to me, so I could voice my concerns about the 9 drainage in our area. 10 Q. And has your house actually been affected with overflowing 11 of water and flooding? 12 A. Yes, it has. 13 Q. Ms. Varnadore, have you on occasion had to initiate legal 14 action? 15 A. Yes. 16 Q. Tell me what the nature of that was and who it was brought 17 against? 18 A. It was brought against Bibb County. It was because our 19 house was flooded in 1994, and the actual lawsuit was concerning 20 the damages that we received from the flood of 1994. 21 Q. All right. Now, ma'am, I will ask you, was that matter, 22 without going into detail, was that matter successfully 23 concluded? 24 A. It was concluded, yes. 25 Q. All right. Now, can you tell me, and no lawsuit exists 0060 1 today in your individual names against any I entity dealing with 2 the drainage problem. 3 A. No, it does not. 4 Q. You are still concerned, or not, with the drainage problem? 5 A. I am still concerned today. 6 Q. All right. Would you state what, in what manner and method 7 did you bring this environmental issue to the attention of the 8 authorities who had something, some ability to do something 9 about it? 10 A. Well, I have talked to county engineers, and I tried to go 11 through the chain of command, because I have always felt that 12 was the proper protocol. So I started at a local level. That 13 was with the county engineers, county commissioners. Then I 14 went to, I did make some phone calls to the EPA because of some 15 things that I had read, some ads I had read in the paper, and I 16 was trying to find some information on. Then I went to the 17 state DOT. As a matter of fact, I have talked to Ms. Cora Cook 18 at the State Department of Transportation since 1994 concerning 19 the drainage in our area. And that was before the vote in 1994, 20 the referendum vote. Then I was put in contact with Ms. Lauri 21 Schrader at the Federal Highway Administration, and I voiced my 22 concerns to her. 23 Q. Now, did you understand the dimensions of this roadway, the 24 size of it? 25 A. At what time? 0061 1 Q. At any time, did you have the, form an opinion as to how 2 this roadway, what the size was and how it would affect you? 3 A. Yes, sir. 1994 it was stated that it would be widened to 4 24-foot lanes. It is now a 22-foot lane. And then when I went 5 to the final road improvement program meeting, it stated that it 6 would go from 22 feet to 70 feet from sidewalk to sidewalk. 7 Q. Was that a substantial, in your mind, a substantial -- 8 A. Yes. 9 Q. What did it mean in terms of your property or your 10 circumstances? 11 MR. ALMAND: If it please the court, I would object. 12 I am probably just objecting for the record only, but this lady 13 is no hydrologist. She doesn't know what the effect of the 14 construction would be. 15 MR. HUBERT: Certainly not a hydrologist, but she is a 16 person who has had water in her house. 17 THE COURT: I will let her testify as to the facts of 18 what happened. She can't give expert testimony, just lay 19 testimony. 20 Q. (BY MR. HUBERT) Tell us what the purpose was of your 21 activity, as relates to both the water and the size of the 22 roadway. 23 A. Well, my purpose was to try to make the county aware, the 24 road improvement officials aware that the water problems out 25 there were of major concern, not only to me, but to a lot of 0062 1 people. And I asked the questions on many occasions, you know, 2 what would they do with the water. And my answer, the answer 3 that was given to me was, well, you will still get the same 4 water that you got before. 5 Q. Can you tell me if that is satisfactory? 6 A. No, it is not. I felt like the water should be stopped 7 before it came to us. And the way that I saw the road plans at 8 the meetings, there was a pipe that goes under the road, it is 9 right there at the corner store, the corner of Liberty Church 10 Road. It will go up under the road and go directly down into 11 one of the main drainage channels that will, you know, flow 12 through the neighborhoods and back through the back of my house. 13 Q. Would it affect you or not, in your opinion? 14 A. Not directly but indirectly. But it will, it will affect 15 many other people very quickly and very directly. 16 Q. Can you tell me, is there any information in the studies 17 that you have seen, reports that you have seen that indicate 18 this problem is being analyzed in the way that you think is 19 truthful, accurate and appropriate? 20 A. Well, there have been many studies in my area done. But it 21 seems like when the studies were done, Bibb County seemed to 22 have ignored them. I mean, there were recommendations made of 23 things that could be done to correct the drainage situation in 24 our area, and they have never been, some of the things have 25 never been done. 0063 1 Q. Can you tell me, did you have a hydrology study done 2 yourself? 3 A. Yes, I did. 4 Q. Was it in connection with the lawsuit? 5 A. Yes, it was. 6 Q. Have the improvements that were recommended in that 7 hydrology study been discussed, incorporated in or talked about 8 by the authorities involved in this case? 9 A. They had been discussed. Some of the improvements that 10 were suggested in conjunction with the detention ponds had not 11 been done, and that was improving the channels, main channels 12 around the neighborhood. Those have not been done to date. 13 Q. Do you regard the analysis of the water problem in your 14 direct area as being appropriate, accurate, and a partial or 15 total solution to the problem? 16 A. I don't think it is a total solution, no. 17 Q. Is it, does it ameliorate the situation? 18 A. The detention pond helps a certain portion of the drainage 19 basin. 20 Q. What effect, if any, would the road have if it moves from a 21 two-lane to five-lane road. 22 A. Well, okay, I'm sorry. If you widen a road from two lanes 23 to five lanes, of course, you are removing natural foliage and 24 trees and grass and leaves and everything else that would slow 25 the water done. And to me, after having lived out there, and I 0064 1 know how the water goes; the water, if there is pavement there, 2 will only run faster. So it will get there to us at a faster 3 rate. And it is already swift. 4 Q. All right. Now, tell me, have you discussed these issues 5 with Moreland Altobelli? 6 A. Yes, I have. 7 Q. Tell me what those discussions entailed, please, and who 8 you talked with? 9 A. At the community meeting in 1998 I talked to Shari 10 Williamson, I talked to Van Ethridge, I taked to Robin Webb, I 11 talked to Tommy Barnes, who is with Moreland Altobelli. And at 12 the time I went up to Tommy Barnes he had stated, unwittingly, I 13 think, that he had been warned that there was some people that 14 were in a lawsuit, and to try to stay away from them. And I 15 explained to him I was one of those people, but I was still 16 concerned with the drainage. 17 Q. And did you have an occasion to talk to Mr. Bob Fountain 18 about the study of those issues addressed therein? 19 A. Yes, I have. 20 Q. Can you tell me, have you discussed the matter with 21 Mr. Walter Kulash? 22 A. Yes, I have. 23 Q. What was the purpose, to what result did those 24 conversations come to some finality or some conclusion at all? 25 A. Well, Mr. Kulash, you know, I think understood our plight, 0065 1 and of course his hands were tied. 2 MR. ALMAND: If it please the court, I object to that 3 testimony, what Mr. Kulash understood or hands being tied. 4 MR. HUBERT: Your Honor, she is entitled to give her 5 impression. It is clear it is simply an impression. It is not 6 for the truth, it is for her impression. 7 THE COURT: Well, I don't, she can, she can testify 8 that he appeared to understand, but she can't go on and delve 9 into his mental processes. 10 Q. (BY MR. HUBERT) Without going into his state of mind, can 11 you tell us what reaction or what response he made to you that 12 gave you any idea as to whether he was receptive or not? 13 A. He was receptive to our plight, yes, sir. 14 Q. Did he do anything? 15 A. No. I mean, he was not allowed to, by Bibb County. 16 MR. ALMAND: May it please the court, that is the part 17 I object to. 18 THE COURT: Well, I think that is something that is 19 objectionable. I'm going to sustain. 20 MR. HUBERT: Of course, your Honor, we are without a 21 jury, and it seems to hold us pretty close on a question like 22 that. 23 THE COURT: Well, you know, you have got to set a 24 limit somewhere. 25 MR. HUBERT: Yes. 0066 1 THE COURT: I'm trying, I understand the witness is a 2 lay witness who has a real concern in this, but we have got to 3 have some sort of a guideline. But move on. 4 Q. (BY MR. HUBERT) All right. Tell us what if anything did 5 Mr. Bob Fountain do? 6 A. I went to a public works meeting, and I think it was in 7 September of 1998, after we had had our community meeting, and I 8 voiced my concerns at that meeting. And I have the minutes to 9 that meeting where I voiced my concerns about the five-lane of 10 Houston Road and how it would affect the drainage. 11 And he stated to me that another flood study was being done 12 to help alleviate the flooding problems in the drainage basin 13 area. 14 Q. Did you learn at that time that an environmental assessment 15 was being prepared? 16 A. I saw an environmental assessment at the roads program 17 meeting. But I was told that that was the only copy that they 18 had, and I could not remove it. So I did sit there and try to 19 look at it as best I could. But I had never seen one before. 20 Q. Did it address the problem that you were concerned with? 21 A. It did not address it. 22 Q. Did your efforts to make them address that problem ever 23 come to any fruition, at all? 24 A. No. 25 Q. Can you tell me, have you contacted Mr. David Grachen? 0067 1 A. Yes. 2 Q. And Lauri Schrader? 3 A. Yes. 4 Q. When did you contact them? 5 A. I contacted them approximately around the end of September 6 1998. 7 Q. All right. Are you familiar with certain executive orders 8 dealing with the water problem? 9 A. Vaguely, yes. 10 Q. Tell us what that executive order is, please? 11 A. The Executive Order 11988. 12 Q. And what does that executive order do in terms of your 13 particular situation, Ms. Varnadore? 14 A. Well, it is something that the government has, or the 15 president signed, that would help alleviate flooding in areas. 16 It would try its best to keep people from flooding and keep 17 human life and property intact. 18 Q. Did you bring the content and the language that provides 19 protection to people like you under Executive Order 11988 to the 20 attention of the authorities? 21 A. Well, it was really funny, because the way I found out 22 about it was, it was advertised in the paper in 1996, when they 23 were going to build the detention pond, that it was Executive 24 Order 11985. And I searched franticly trying to find a 11985, 25 and our attorney for a lawsuit even wrote a letter to Bibb 0068 1 County stating that no information could be found on a 11985. I 2 found it again in my records after a couple of years. So I 3 started trying to find it. I thought this might be something 4 that would help me understand, you know, what was going on. 5 Then I found out there is no such thing as a 11985. It is a 6 11988; and David Grachen, he sent a copy of the executive order 7 to us through the mail. 8 Q. Did you get it from the, I mean, from the Department of 9 Natural Resources? 10 A. Got it from, got it from Federal Highway Administration or 11 EPA. 12 Q. All right. Now, that executive order directs all federal 13 agencies to reduce the risk of flood loss? 14 MR. ALMAND: If it please the court, I would like the 15 witness' testimony as to her knowledge, not Mr. Hubert's. 16 MR. HUBERT: Well, maybe I fall just short of what 17 happened as to Mr., my opposing counsel here, Mr. Almand. 18 THE COURT: Ask the question. 19 MR. HUBERT: I will withdraw that. 20 Q. (BY MR. HUBERT) Tell what you say the Executive Order 21 11988 does, please, ma'am? 22 A. Okay. Hold on. Basically, it is a real detail. There is 23 a booklet that I have that is about this thick (indicating) and 24 it basically states that it directs all federal agencies to 25 reduce the risk of flood loss, minimize the impact of floods on 0069 1 human safety, health and welfare. 2 Q. All right. Can you tell us today if there has been any 3 action taken consistent with that executive order, in your 4 property or in the environmental assessment? 5 A. I don't believe so. 6 Q. Can you tell me if Ms. Schrader talked about a package of 7 those documents which she was going to submit to anyone for 8 incorporation in the environmental assessment? 9 A. Yes, she did. 10 Q. Did they ever appear or occur in the executive, in that 11 environmental assessment? 12 A. I'm sorry, repeat the question. 13 Q. Did that package, any of the contents of that package, ever 14 appear at the environmental assessment, that you can see? 15 A. No, not in the environmental assessment. 16 Q. Has it been used in any way that you know of? 17 A. I do know that Ms. Schrader and Cora Cook received the 18 documents. Ms. Schrader told us that -- on December 10th we had 19 a meeting at Kroger, and they came to talk with the community. 20 And we had already mailed them a packet, which I have part of 21 right here. We had already mailed them the package, and she 22 told us -- 23 Q. Wait a minute, Ms. Varnadore. May I ask you not to refer 24 to a conversation. We don't get anywhere that way. Just tell 25 us if the conversation occurred and what, what you did and what 0070 1 you understood as a result of that. 2 A. Okay. We were requested to make, have our concerns sent in 3 a question form, which we did. Which I did. I sent a letter to 4 the Federal Highway Administration and to Georgia DOT, and that 5 was about January 5, 1999. 6 Q. All right. Now, January 5, 1999, you are aware, or not, 7 that there was in existence, an environmental assessment? 8 A. I was vaguely aware that I had looked at a booklet at the 9 public meeting. 10 Q. Did you have any availability to get the document in your 11 hand, take it home or take a copy of it home and review it and 12 peruse it carefully? 13 A. Not on the day of the meeting. 14 Q. When you wrote your letter, January 5, 1999, did you 15 understand that that document was a concluded document and 16 couldn't can changed, or was it a document where you still had 17 some input into it? 18 A. I didn't know. 19 Q. Did you of have, at that time, the document in your hand? 20 A. I, I did not have it in my hands. But we had just received 21 it. The first time that we talked to the Federal Highway 22 Administration, I think Ms. Meggs had received it somewhere 23 around October, September or October -- maybe it is October of 24 1998. 25 Q. When you understood what was in the document relevant to 0071 1 your concerns, did it adequately deal with them, in your 2 opinion? 3 A. No. 4 Q. Were you trying to get additional information to them on 5 January 5, 1999? 6 A. Yes, I was. 7 Q. Did you see any results of that effort? 8 A. No. Not even until today. 9 Q. Did you write to anyone else in government? 10 A. I wrote to Governor Roy Barnes. 11 Q. When did you do that? 12 A. I think that was May 3, 1999. 13 Q. Did you get a response from Governor Barnes? 14 A. No, I did not. 15 Q. Can you tell us if you learned anything based on that 16 attempted interchange, whatsoever, from his office or anyone 17 else? 18 A. No. 19 Q. Did you find it unresponsive? 20 A. I found the whole process unresponsive. 21 Q. Did you recently see Ms. Cook of the MAT Program in 22 February and March of 1999? 23 A. Yes, I did. 24 Q. And what did you do at that time? 25 A. I asked her when I was going to get the answer to my 0072 1 questions. And I explained to her that I needed to have the 2 answers in writing, again, and she explained that they weren't 3 that easy to answer, and that she would have to get a 4 hydrologist to look at the situation. 5 Q. Has anyone ever said that they have had a hydrologist study 6 done out there? 7 A. They have said that there was another hydrology study 8 available. But we have asked for it on several occasions and 9 have never received it. 10 Q. Have you of asked for the hydrology study and been refused 11 a copy? 12 A. Yes. I was told it wasn't there. 13 Q. Have you ever asked for a copy of the hydrology study and 14 was told they couldn't release it because the county hasn't paid 15 for it yet? 16 A. Yes, I have. 17 Q. Can you tell me, as of January 6, 2000, have you had any 18 written response to any of your requests whatsoever? 19 A. No, I have not. 20 Q. Now, have there been any other contacts at all, contacts at 21 all? 22 A. Just -- no, not that I can recall. 23 Q. Now, can you tell us basically what do you understand, what 24 did you understand the widening of Houston Road to be in the 25 referendum? 0073 1 A. It was my understanding that it would be widened from 22 2 feet to 24 feet, in 1994. 3 Q. Okay. And did you vote the referendum? 4 A. Yes, I did. 5 Q. Did you get that information from the ballot itself? Or 6 where did you get the information? 7 A. I got the information from a meeting that I attended at the 8 Porter Ellis Community Center in October of 1994 that I 9 attended, that Moreland Altobelli distributed, stating the 10 projects, you know, how they would be done in the whole 11 community. I also read newspapers. 12 Q. Okay. 13 MR. HUBERT: You can find the next document that I 14 will offer the witness at Bates pages 26 to 39 and 23 through 25 15 of the document I gave you. 16 Q. (BY MR. HUBERT) I show you a document previously identified 17 as Plaintiffs' Exhibit No. 25. Can you tell us what that 18 document is, please? 19 A. This is the document that they provided to the public at 20 the Macon, Bibb County Road Improvement Program at the Porter 21 Ellis Community Center on October, I think it is October 5. 22 Q. Do you recognize the document? 23 A. Yes. 24 Q. Is that a document you read and relied on? 25 A. Yes, I did. 0074 1 Q. I show you a document that has been previously identified 2 as Plaintiffs' Exhibit No. 34. Do you hold it in your hand? 3 A. Yes, I do. 4 Q. What is that document, please? 5 A. It is the resolution for the Bibb County Board of 6 Commissioners to adopt the 1 percent sales tax. 7 Q. And did you, how did you come by a copy of this, or did you 8 have it? 9 A. I did not have it. Someone provided it for me. 10 Q. What is the document, please? 11 A. It states that, how the Macon, Bibb County Road Improvement 12 Program would be handled as far as minorities' participation, 13 and the location, extent of the project should be funded by the 14 special local options sales tax as approved by the voters. 15 Q. Is it a resolution? 16 A. Yes, it is. 17 Q. Is this a resolution that comports with your understanding 18 of what the tax was to be used for and how you voted? 19 A. Right. 20 Q. All right. Now, I show you a document previously 21 identified as P-25. Do I have the number correct? 22 A. Yes. 23 Q. Tell us what that document is. 24 A. This is the same document. It is the one that Moreland 25 Altobelli -- 0075 1 Q. I have already asked you about that document, correct? 2 A. Yes. 3 Q. I'm sorry. 4 Now, can you tell me, has the road been changed from the 5 time that that resolution was asserted and given to you in terms 6 of its physical dimensions? 7 A. Yes. 8 Q. Tell us how and in what way? 9 A. It was increased from, at the time of the resolution they 10 told us they were going to increase it to 24-foot lanes, which 11 would be two 12-foot lanes. And now they are going to increase 12 to it five lanes. And that would be 70 feet, with sidewalks on 13 each side. 14 Q. Are there sidewalks on both sides or just one side? 15 A. On both sides. 16 Q. Would you have voted for the local option sales tax had you 17 known the size it is presently designed to be built for? 18 A. No, I would not. 19 Q. Do you feel the resolution was accurate in terms of 20 informing you and the tax paying citizens as to what the project 21 was? 22 A. Yes, at the time I did, yeah. Yes. 23 Q. As in terms of what is being built, was it accurate? 24 A. Right, yes. 25 Q. Being built, is it accurate? 0076 1 A. As being bit now? No, to me it is not. 2 MR. HUBERT: She is with you. 3 THE COURT: We will take a short break now. Ten 4 minutes. 5 (Recess) 6 THE COURT: All right, let's resume. 7 MR. ADERHOLD: We have no cross for this witness, if 8 your Honor please. 9 MS. BRAKEFIELD: No cross for the state. 10 MR. ALMAND: No cross. 11 THE COURT: All right. You are excused. 12 MR. HUBERT: Thank you. Your Honor, at this point we 13 would call Ms. Marilin Meggs. 14 15 MARILIN R. MEGGS, 16 having been first duly sworn, was examined and testified as 17 follows: 18 DIRECT EXAMINATION 19 BY MR. HUBERT: 20 Q. Would you state for the court your full name, and spell it 21 please? 22 A. Marilin R. Meggs, M-A-R-I-L-I-N R M-E-G-G-S. 23 Q. Where do you reside Ms. Meggs? 24 A. 6564 Chriswood Drive in Macon, Georgia. 25 Q. What do you do for a living? 0077 1 A. I'm a homemaker. 2 Q. Have you had an interest in -- well, first, identify where 3 your property is and your residence as relates to the Houston 4 Road Project. 5 A. I'm down hill from Houston Road. I will give you a 6 sequence. Houston Road is here, followed by Liberty Church, 7 followed by Bevin. I am the lowest point on Chriswood Drive. 8 Q. Can you tell us, have you had any concerns with water? 9 A. Yes, sir, I have. In '94 the entire lower portion of my 10 home was demolished. I had over seven feet of water in my 11 residence. I lost about everything I had. 12 Q. And did you initiate a legal action as relates to that 13 problem? 14 A. Eventually I initiated a legal action. But prior to 15 initiating any legal action, I went through all the avenues that 16 I could find, as a citizen, to provide some kind of relief. 17 Those avenues included hazard mitigation. I had an application 18 in for hazard mitigation. That was denied, because my property 19 was not affected by any natural body of water. What I mean by 20 that is, that my house is not bordered by a river, lake, stream 21 or dam. Therefore, I was denied hazard mitigation funds. 22 I then apply for CBDG Grant funds. I tried to do this on 23 my own, and I was told that that is a thing that is done through 24 the county now. 25 So the county engineer's office was handling that, as well 0078 1 as Lidia Davis and Ralph Nix at another agency in Macon. And I 2 helped provide information for that. 3 And at that point in time, I believed that the Chriswood 4 detention pond was going to resolve my problem. And I attended 5 all the meetings for that money. And I was working with the 6 county in conjunction to secure the grants. And I believed at 7 that point in time that my property might be safe. 8 However, I discovered, after the thing was under 9 construction, and my home almost flooded seven more times, that 10 it was necessary to get an attorney and, yes, I did pursue 11 litigation. 12 Q. Did you resolve that matter prior to the suit? I mean, 13 prior to going before a jury? 14 A. I never got to a jury, Mr. Hubert. 15 Q. Did you resolve it before that time? Did you settle your 16 case. 17 A. The case was settled, but the important part, to me, about 18 that, was that problem resolution was never a part of my court 19 case. The only thing that we were going to trial to determine 20 was the amount of damage. Problem resolution was never a part 21 of the deal. That was not an opportunity that was available to 22 me. 23 Q. Can you tell me if the, if part of the settlement dealt 24 with the construction of a detention pond? 25 A. Part of my personal settlement? 0079 1 Q. Yes. 2 A. No, sir, not, not exactly. 3 Q. Has a detention pond been built? 4 A. Yes, sir. 5 Q. Does it alleviate the problem? 6 A. Well, you know, you can look at any model you want to look 7 at. But I'm a layperson, and I have done some videos as to what 8 it has done to my property, specifically, and has it eliminated 9 the problem for me. And I feel like I'm still in substantial 10 danger. 11 And I really can't answer questions like that because I'm 12 not a hydrologist. But I can avail myself of any information 13 that you can get through public records laws. 14 Q. Yes. And have you attempted to do that? 15 A. Yes, sir, and it is not just my opinion that it has not 16 eliminated the problem. It is, it is the opinion of several 17 professionals. And I do have some records here to indicate 18 that. 19 Q. Have you sent off, under the Open Records Act of the 20 Freedom of Information Act, for information about the water 21 problem in your area? 22 A. Yes, I have. 23 Q. Let me ask you, are you familiar with the environmental 24 assessment that has been prepared in this case? 25 A. Yes, I am. 0080 1 Q. And are you aware that it has been accepted, finally? 2 A. Pardon me? 3 Q. Are you aware whether or not it has been accepted, 4 finally? 5 A. It has a cover letter on it dated 8-17 that says it has 6 been accepted. 7 Q. 8-17 of what year, please, ma'am? 8 A. '98, Finding of No Significant Impact. 9 Q. Did you review that document? 10 A. Yes, sir. 11 Q. Have you read it? 12 A. Yes, sir. 13 Q. Does it deal with your problem? 14 A. I think there were two sentences regarding flood plains in 15 the document. 16 Q. Do you feel like it discussed any solution or alleviation 17 of the problem that you are experiencing there? 18 A. No, sir. The document states there is no problem. 19 Q. Can you tell me if you anticipate a problem based on a 20 two-lane road? 21 A. I have a problem that exists today with a two-lane road, 22 yes, sir. 23 Q. Do you anticipate any further problems with a five-lane 24 road? 25 A. I don't see how it can get better. 0081 1 Q. Have you had a hydrologist report prepared on your own? 2 A. Yes, sir, I have. 3 Q. Let me ask you to -- I show you a document previously 4 identified as Plaintiffs' Exhibit 24. What is that document, 5 please? 6 A. This is a document prepared in my former court case against 7 the county by Albert Holler, that is a hydrological 8 investigation of Watershed 10 which is the drainage basin which 9 affects my property. 10 Q. All right. Did you give a copy of this or has the, anyone 11 with the government, in preparing the environmental assessment, 12 ever had knowledge of this report? 13 A. The summation page was sent, a package. 14 Q. Has anyone of asked you for this report? 15 A. No, sir. 16 Q. Is any part of this report incorporated in the 17 environmental assessment? 18 A. No, sir, not that I am aware of. 19 Q. Is it made reference to? 20 A. No, sir. 21 Q. Has the environmental assessment made reference to any 22 hydrology study? 23 A. I want to be careful with may answers. I want to make sure 24 that I'm not speaking out of turn. But I have references marked 25 in my copy for anybody that has one. The only references I 0082 1 could find were on page 30. Two sentences. One on wetlands, 2 the proposed project corridor has been surveyed with respect to 3 jurisdictional wetland involvement. Says no jurisdictional 4 wetlands were found. 5 The only other sentence I could find relating to this 6 problem was a survey of the project corridor for flood plains as 7 required by Executive Order 119988 identified no crossings of a 8 hundred-year-flood plain. I'm reading directly from the 9 document. Construction of the project would not require the 10 placement of fill material in a flood plain. 11 And, Mr. Hubert, I have read it front to back about eight 12 times, between yesterday and today alone, and that is the only 13 reference I can find of water in this document. 14 Q. Is there any statement in this environmental assessment as 15 to how they were going the deal with the executive order 16 problem? 17 A. There is a reference made to the executive order. But it 18 doesn't discuss any kind of resolution. There is no need to. 19 Because according to their findings, the flood plains were going 20 to be impacted. So it is a kind of -- 21 Q. Ms. Meggs, do you live in a flood plain area? 22 A. A portion of my property is in a flood plain. 23 Q. Are you in a FEMA area? 24 A. A portion of my lot is in a FEMA designated flood plain, 25 yes, sir. 0083 1 Q. And how many times have you flooded out? 2 A. Since I have lived in the house, there has been water 3 inside my home to a depth of seven feet, once. Prior to my 4 ownership of the house, and as a result of my litigation and 5 talking to people in the area, I became aware that my house had 6 flooded previously, and I did obtain testimony from a gentleman 7 that lived across the street, who also provided pictures of my 8 residence under water. So, to my knowledge, there has been 9 water in my home twice. 10 Q. Can you tell me if the environmental assessment in any way 11 deals with that problem, and if it doesn't, is that problem 12 ignored in terms of your reading of that assessment? 13 A. Yes, sir, it is completely ignored. 14 Q. Does it adequately deal with the environmental factors 15 surrounding your home and your residence? 16 A. Well, no, it doesn't. But I think that is stating it 17 rather mildly. That would be to assume that only my residence 18 was affected. In my research and the work that I helped do on 19 grant applications, I found 17 homes in my area alone that have 20 been identified as having had water problems. And as a result 21 of community meetings, I talked to 45 different home owners that 22 have identified water as a problem in some form of the other, 23 that live in our project area. 24 By the project area, I mean, from Echeconnee Creek, which 25 is the border between Bibb County and Houston County, and it is 0084 1 on this end, and Hartley Bridge Road on this end. And the 2 reason I state this magnitude of area is because one of the 3 studies done for the county explains that my property alone 4 receives 1,180 acres of runoff. 5 Q. Have you attempted to bring any of this to the attention of 6 those who were preparing the environmental assessment? 7 A. I have brought it to the attention of people that were 8 involved in the preparation of the environmental assessment. 9 Q. After the publication of the environmental assessment, did 10 you do anything to try to get it amended or relooked at or 11 further investigated? 12 A. Yes, sir, I did. But, again, how I got this thing I think 13 is important to the court. I don't know how roads work, so I 14 made it my job to find out what processes were supposed to 15 occur. 16 There was a notice that was published in the paper -- I do 17 have a copy of it somewhere here -- prior to our final road 18 meeting on Houston Road, which was held on July 7th of 1998. It 19 stated that an environmental document was available for review. 20 It gave both a mailing address and a telephone number. I called 21 the number. I was told the document had not been printed but it 22 would be available for review at the public meeting. 23 Q. Did you go to the public meeting? 24 A. Yes, sir. 25 Q. Did you ask for the document? 0085 1 A. Yes, sir. 2 Q. Was it available? 3 A. It was there. I have never seen an environmental 4 assessment, and you were not allowed to remove it. I couldn't 5 sit down at any one place -- I could look at it but it was, I 6 think, on a chain, actually. And a number of people could 7 review it, and I could look at it. 8 I was then told that the document would be, any documents 9 at the road meeting would be available on Roth Avenue, that is a 10 local DOT office. And I went there to again review the 11 document. They didn't have it. They told me the only copy was 12 available at the offices in Moreland Altobelli. 13 I went to Moreland Altobelli. They did make the document 14 available to me, but I could only copy select pages. In other 15 words, if I was interested in a select thing, I could get a copy 16 of that specific thing. 17 Quite frankly, I have never seen one, and I'm not 18 intelligent enough to digest that thing and memorize it word for 19 word and find out what I might need to know, in one sitting. So 20 at that time I was basically concerned with the fact that it had 21 not been reviewed historically. 22 We copied information relating to the historic property, 23 and I moved on. But then I became aware that there were a 24 number of things that were contained in here, or should be 25 contained in here, that I should familiarize myself with. So I 0086 1 asked for the entire document. I was told that Moreland 2 Altobelli had one copy and, again, that I could copy select 3 pages. 4 I asked who else got a copy of this thing, where does it 5 go, where does it come from, who does this, who does this? That 6 is when I became involved in telephone calls to federal 7 highway. Specifically, to David Grachen of the Federal Highway 8 Administration and a Ms. Lauri Schrader. 9 Q. All right. Let me ask you; did you communicate in any way 10 directly with the Federal Highway Administration to see this 11 document before it was signed and approved, or after or at any 12 time while it was being prepared? 13 A. No, sir. This thing was finished in August. 14 Q. All right. Have you sought to communicate with them to get 15 them to relook at this area where you were concerned, since the 16 document has been prepared? 17 A. Yes, sir. After Mr. Grachen FedExed the document to me on 18 a weekend, because I had not been able to get access to it in 19 any other way, I reviewed it thoroughly. And I called him with 20 a number of concerns. Subsequently, I showed this document to a 21 number of people in the community. Mr. Hayes then received a 22 copy, and if I'm not mistaken, Moreland Altobelli delivered a 23 copy to him. 24 And the first place we presented it, it was in an executive 25 committee meeting after we had this thing three days. I 0087 1 prepared a synopsis of what I didn't understand about it, and it 2 was presented to the executive committee. And that was in, I 3 believe, October of '98. 4 Q. You talking being executive committee of what body? 5 A. Roads improvement program. 6 Q. All right. 7 A. And -- 8 Q. That was a body officially designated to have input from 9 the citizens? 10 A. Yes, sir. 11 Q. Did you get any response? 12 A. No. No, I did not. So we decided that since -- well, I'm 13 sorry, I guess we did. I just didn't like the response. What 14 we were told pretty much was that this was a DOT and federally 15 funded project, and that that kind of thing was out of the hands 16 of local people at that particular time. 17 So I decided then that what we should do is go back to 18 federal highway. Because it was my understanding that this was 19 not a local thing any longer. Mr. Hayes, myself and a number of 20 citizens, got together everything that we could find that we 21 thought they should have been aware of prior to doing an 22 environmental assessment. Here is my copy. It is not entirely 23 complete, because I had to pull a lot of things out of here to 24 send to state senators as well, but it is a pretty complete 25 version. And we sent this off to the federal highway. We sent 0088 1 it to both Lauri Schrader, we sent to it David Grachen, to Bob 2 Lawlly (sic) of Georgia DOT, and it was in two boxes. It was 3 FedExed to them. This was before Thanksgiving. 4 We had many subsequent phone calls with Ms. Schrader, and 5 we let them know that not only was Houston Road having problems 6 like this, a lot of other projects were as well. 7 Subsequently, the federal highway and DOT officials came to 8 Macon in December of '98. They heard concerns from 17 different 9 neighborhoods. And they said they were overwhelmed by this. In 10 here I have documentation from CBDG Grants that states our area 11 has excessive flooding -- 12 Q. Excuse me, Ms. Meggs, you are holding in your hand a 13 document that has not been identified. But what is the 14 document? It is a compilation of -- 15 A. What I sent to the, what we sent to the Federal Highway 16 Administration, Georgia DOT. 17 Q. Would you describe it 8 by 11 paper, approximately a half 18 inch thick? 19 A. It is a little bit more than that. 20 Q. All right. 21 A. And this is just the environmental stack. There was 22 another stack. 23 Q. All right. Go ahead. 24 A. As a result of that, and their subsequent visit to Macon, 25 we were asked to do yet more things. We were asked to put this 0089 1 wealth of information into question form. We did that. I have 2 a copy of those questions as well. Those questions included an 3 analysis of the 2015 plan. 4 And how I felt like this environmental assessment deviated 5 from that 2015 plan and what was defined in it from our area. 6 There were 32 questions that I submitted to federal highway. 7 Again, a copy was sent to Georgia DOT. I guess my point, 8 Mr. Hubert, is I never received a response to question one. Not 9 one. 10 Q. Are you satisfied with the responsiveness of those two 11 agencies as relates to the environmental matters that affects 12 your property? 13 A. No, sir, I'm not. And the confusing thing to me is, nobody 14 is responsible for this road. Locally they are not responsible 15 because it is in the hands of Georgia DOT. Georgia DOT is not 16 responsibility because it is in the hands of Federal Highway 17 Administration. Federal Highway Administration says drainage is 18 a local issue. 19 And I finally, after all of this, my last conversation with 20 Mr. Grachen, as you can well understand, I was somewhat 21 frustrated. I said, Mr. Grachen, what do I, as a citizen, have 22 to do to get this thing looked at again? And I have objections, 23 I have them, I can show them to you, your Honor, things that are 24 contradictory in here, things that I don't understand. I 25 submitted them to every government agency. Including some not 0090 1 involved with the road improvement program. As a matter of 2 fact, I had meetings with HUD because I thought they might have 3 some money in our roads. I could document that as well. 4 Mr. Grachen's final answer to me was, that I should either 5 get a state senator, to tell him to do this thing over, or I 6 should hire an attorney and get an injunction. Before you were 7 even contacted, Mr. Hubert, I contacted three state senators who 8 received this same package. 9 MR. HUBERT: She is with you. 10 MR. ADERHOLD: Nothing from the United States, your 11 Honor. 12 MS. BRAKEFIELD: Nothing for the state, your Honor. 13 MR. ALMAND: Was it your intention to introduce P-24? 14 MR. HUBERT: Yes, I planned to introduce 24. I 15 planned to introduce 24. I offer 24. 16 MR. ALMAND: all right. I have some questions, your 17 Honor, before I respond to that. 18 CROSS-EXAMINATION 19 BY MR. ALMAND: 20 Q. Ms. Meggs, I look at Plaintiffs' Exhibit 24 and I notice it 21 is entitled Hydrologic Investigation July 1994 Flood; is that 22 correct? 23 A. I believe so. I don't have -- yes, I do have it. 24 Q. All right. This was prepared by Albert G. Holler on the 25 date of May 21st of 1996; is that correct? 0091 1 A. Yes, sir, uh-huh, that is correct. 2 Q. Now, this was prepared in connection with the lawsuit you 3 had filed because of the damage you had suffered in the '94 4 flood, wasn't it? 5 A. It was signed as a result of the damage five homeowners 6 sustained, not just me. 7 Q. Now, this hydrologic investigation dated May 21, 1996 does 8 not discuss in any way any increased runoff that may occur 9 because of construction activities on Houston Road, does it? 10 A. Well, I guess it depends on how you want to read a drainage 11 study. It certainly does describe in the executive summary, 12 where the points of reference began at Houston Road, that all 13 the culverts were undersized, inadequate and could not carry 14 drainage that existed currently. 15 Q. Ms. Meggs, the question was, I said increased runoff that 16 might be occasioned by the construction that was now being 17 planned for Houston Road, was not discussed as part of this 18 survey, was it? 19 A. No, sir, there was no awareness we were getting a five-lane 20 road on May 21st. 21 MR. ALMAND: I have no further questions. I would 22 object to this Exhibit -- 23 MR. HUBERT: Your Honor, I haven't offered it yet. 24 Perhaps he can hold his objection. 25 THE COURT: All right. It hasn't been offered. Is 0092 1 there anything further of this witness? 2 MR. HUBERT: You may come down. 3 THE COURT: All right. You are excused. 4 THE WITNESS: I believe this is yours, sir. 5 THE COURT: Call your next witness. 6 7 DOUGLAS A. HAYES, 8 having been first duly sworn, was examined and testified as 9 follows: 10 DIRECT EXAMINATION 11 BY MR. HUBERT: 12 Q. Introduce yourself to the court and spell your last name? 13 A. Douglas A. Hayes, H-A-Y-E-S. 14 Q. Where do you live, Mr. Hayes? 15 A. I live at 6694 Chriswood Drive, Macon, Georgia. 16 Q. And what do you do for a living? 17 A. I am an architect. 18 Q. All right, sir. And do you have a business in which you 19 perform that, firm, where you perform the services of architect 20 services? 21 A. I am a principal in the firm of Hayes, Michael & 22 Associates. 23 Q. All right. Where is that business located? 24 A. It is located at 151 South Houston Lake Road, Warner 25 Robins, Georgia. 0093 1 Q. All right. And tell us just how long you have been engaged 2 in the practice of architecture? 3 A. I graduated from Southern Technical Institute in 1996. 4 Since that time I have worked for a number of firms. Became 5 registered in 1978, and I opened my own practice in 1981. 6 Q. All right. Tell me when you graduated, again. I may have 7 misheard it. When did you graduate? 8 A. 1966. 9 Q. 1966. All right. Can you tell me, during that period of 10 time, have you had occasion to deal with land and property 11 issues of an environmental nature? 12 A. My practice is rather diverse. We do anything from land 13 planning assessment of properties for clients, development of 14 master plans, some limited subdivisions, some road analysis, 15 and, in general, land planning architectural practice. 16 Q. Have you worked for state and local government? 17 A. Yes, sir. 18 Q. Have you worked for private development companies? 19 A. Yes, sir. 20 Q. And have you worked for residential development? 21 A. Very little residential but some subdivision. 22 Q. Now, tell me if, in the normal course of your occupation 23 and services that you render, are you dealing with questions of 24 an environmental nature such as water problems or soil problems, 25 air problems or anything of that sort, sir? 0094 1 A. We touch on those issues. At the time there is a need for 2 professional assistance, we hire, consulting engineers to 3 address those issues, and then we review their data. 4 Q. And what has been your experience in working with roads or 5 the development of roads and streets, sir? 6 A. We have done some subdivision site planning. We have done 7 road systems within several hundred acres of properties that we 8 have been, had clients for. We have made these roads 9 interconnect to state and federal highways and have been through 10 the analysis of the drainage, the other issues that are typical 11 with those. 12 Q. Do you deal, on a regular basis, with state and local 13 governments in the federal and state highway departments? 14 A. We deal some with state highway, some with state and 15 federal. Most of our dealings with the state highway department 16 is connections into their road systems. 17 Q. How about state and local zoning boards and development 18 offices? 19 A. We deal with those on a regular basis. 20 Q. Now, have you done any work for governmental authorities, 21 development authorities or industrial development authorities? 22 A. Yes, sir. 23 Q. Now, can you tell me, do you belong to any societies, 24 professional organizations or entities that promote further 25 education and development in your field? 0095 1 A. Well, as a requirement of registration, we regularly have 2 to attend continuing education classes in various fields in 3 order to maintain the registration. And we are -- 4 Q. When was the last time you attended one, Mr. Hayes? 5 A. Sometime toward the end of last year. Because it probably 6 was August or September. 7 Q. And you hold a registration number what? Professional 8 registration number. 9 A. My Georgia registration number is 3443. I'm also 10 registered in Florida, South Carolina, North Carolina, Tennessee 11 and Alabama. 12 Q. And does the scope of your work take you into all of those 13 states? 14 A. We have worked in all of those states, yes, sir. 15 Q. All right. 16 MR. HUBERT: Your Honor, I propose, under the federal 17 rules, to offer Mr. Doug Hayes as an expert witness in the 18 matter, as relates to issues of road and consequences of road 19 building that would occur in the type of construction we are 20 talking about on the Houston Road Project. 21 MR. ADERHOLD: May it please your Honor, while Mr. 22 Hayes may be a fine architect, I'm not convinced he should be 23 qualified as an expert for testimony on the roads project known 24 as Houston Road. 25 MR. HUBERT: I submit him for voir dire, your Honor. 0096 1 THE COURT: Yes. 2 VOIR DIRE EXAMINATION 3 BY MR. ADERHOLD: 4 Q. Mr. Hayes, we have met before. You know I represent the 5 government, federal defendants in this case. 6 A. Yes, sir. 7 Q. What experience have you had in your practice dealing with 8 road construction, please, sir, such as the Houston Road 9 Project? 10 A. All of our work where we make attachments into the highway 11 system involve anything from a minor driveway entrance to 12 extended road connections that are required by DOT. 13 Q. What specific education and training do you have in that 14 connection? 15 A. It is, part of our general practice in architectural 16 practice is some of the courses we have taken and some of the 17 experience we have gained. 18 Q. What other road projects have you, state or public road 19 project, have you designed? 20 A. State road projects? 21 Q. Yes? 22 A. I have done no state road projects. 23 Q. Have you done any public road projects of any kind? 24 A. We have done road projects for layouts in subdivisions. 25 Q. But for, for one such as Houston Road, which is a public, 0097 1 state or federal connector? 2 A. I have not done any. 3 Q. Have you ever done hydrologic studies for a system such as 4 the Houston Road Project? 5 A. No, sir. 6 Q. I believe you testified that when you get into a question 7 of soil or water or air you touch on these but you customarily 8 farm those out to other experts? 9 A. That is correct. 10 Q. Is that correct? 11 MR. ADERHOLD: If your Honor please, I don't believe 12 this witness is competent to testify as to the Houston Road 13 Project construction. 14 MS. BRAKEFIELD: Your Honor, I join that objection on 15 behalf of the Georgia Department of Transportation. 16 MR. ALMAND: Your Honor, I would have a few voir dire 17 questions myself, if I might. 18 THE COURT: All right. Go ahead. 19 VOIR DIRE EXAMINATION 20 BY MR. ALMAND: 21 Q. Mr. Hayes, you mentioned that you have experience with 22 roads and subdivisions. What size subdivisions have you been 23 involved in construction of roads? 24 A. Probably as much as a hundred, hundred fifty acres. 25 Q. Hundred fifty what? 0098 1 A. Acres. 2 Q. All right. When you are building roads for subdivisions, 3 they have certain specifications that are required based upon 4 local ordinances or local rules; isn't that true? 5 A. That is correct. 6 Q. As to the size, the depth of the pavement, all those kind 7 of things? 8 A. That is correct. 9 Q. Now, also, public highways, federal and state highways also 10 have specifications and rules and requirements, do they not? 11 A. That is correct. 12 Q. And they are much different from those that you are 13 involved in with putting a road in a 150-acre subdivision, 14 aren't they? 15 A. That is correct. But when we do connections to DOT 16 right-of-ways, we become involved in those types of surfaces, 17 the basis, the primers, et cetera. 18 Q. Now, Mr. Hayes, the traffic volume on a major federal 19 highway or state highway is different from what you would find 20 as traffic volume in a 150-acre subdivision, isn't it? 21 A. In some case. 22 Q. And they have different beginning and ending points, don't 23 they? 24 A. Yes, sir. 25 Q. All right. 0099 1 MR. ALMAND: No further questions. I would join in 2 the motion. Objection to his lack of qualifications. 3 MR. HUBERT: Your Honor, the question is, as stated in 4 Rule 702, what is the standard that is to be applied. And we 5 submit that if there is scientific, technical or other 6 specialized knowledge which will assist the trier of fact to 7 understand the evidence or determine the facts in issue, the 8 witness qualified as an expert, by knowledge, by skill, by 9 experience, training or education, may testify thereto in the 10 form of an opinion or otherwise. 11 It is clear that a person, who has held a certificate 12 in as many states as Mr. Hayes has, has been practicing since 13 1966, has his own firm and has been acquainted with roads, 14 developments of all sorts, private, public and has worked for 15 state, local entities and dealt with federal and state highway 16 administrations, can impart to the court, I presume, some 17 information that would assist the trier in fact in dealing with 18 a matter which is of the technical and scientific breadth of an 19 environmental study. 20 And I submit to you that among the people available to 21 the court to testify about such things, a professional engineer, 22 well qualified just by fact of his education, much less his 23 training, skill and other matters that come to his attention in 24 the ordinary course of his work. We deal with it occasionally. 25 He deals with it consistently on a recurring basis. That gives 0100 1 him a specialized basis to testify. I would offer him and ask 2 the court to permit him to testify. 3 THE COURT: Well, I see, as I said yesterday, Rule 4 702, the Advisory Committee notes say the rule is broadly based, 5 and I think the objection goes to the weight of the testimony 6 not to the competency of it. I will, as a fact finder here, I 7 will be always aware that his experience of building roads such 8 as highways, is very, very limited. Actually, I don't think he 9 has built any highways. But he is, he has a familiarity. He 10 has training in the area. And he has some experience in the 11 area of building roads. 12 So I'm going to allow him to testify as an expert, and 13 I will weigh his testimony based on the matters that the 14 defendants have raised. 15 And with that we are going to break for lunch. Be 16 back at 1:15. 17 (Lunch Recess) 18 THE COURT: All right. You may resume. 19 MR. HUBERT: Thank you, your Honor. 20 Q. (BY MR. HUBERT) Mr. Hayes, may I ask you what your 21 familiarity is, if any, with the Houston Road Public Improvement 22 as part of the Macon, Bibb County Road Improvement Project? 23 A. I have been a resident of that area for nearly 50 years. I 24 have ridden the road numerous times. I have studied the EAS. I 25 have done numerous personal analysis of the road system in south 0101 1 Bibb County. So I feel very familiar with it. 2 Q. All right. Would you tell us, describe the road and its 3 circumstances before the referendum vote. 4 A. The road, as it presently exists, and before the referendum 5 vote, was a substandard two-lane highway that originally was 6 U.S. 41 from Maine to Miami, is what it was categorized as. 7 Q. Is it an urban road, suburban road, rural road? What kind 8 of road is it? 9 A. In my opinion it is a rural road. 10 Q. What is the density of the population along that area? 11 A. There are numerous houses. There are churches. The area 12 presently is developed as low density residential. 13 Q. What is the speed limit along that area? 14 A. It is 45. 15 Q. All right. Now, can you tell me what changes, if any, are 16 likely to occur that will, to the Houston Road thoroughfare 17 from, I guess Allen Road to Sardis Church Road, a 3.2 mile 18 section there, that is likely to affect the community and the 19 area and the environment in that area? 20 A. Well, actually, the road presently exists from the 21 intersection of Highway 247, and it is planned, at present, to 22 Sardis, Walden Road. Recently in a meeting at the roads 23 planning and a public meeting in the county, it was determined 24 that there may be even a further extension of that road to 25 interconnect to the Sardis interchange. 0102 1 Q. Is there any study of that being done? 2 A. Yes, sir, there is. 3 Q. Is it incorporated in the environmental assessment here? 4 A. No, sir, it is not. 5 Q. All right. Is the environmental assessment an ongoing 6 process, to your knowledge, or do you know? 7 A. Well, it is dated August 18, 1998, which, from all I can 8 understand, it has been concluded. But since that time there 9 has been the question about Heard School, and I was told by Van 10 Ethridge that they have made some adjustments to the road in 11 order to preserve the historic character of Heard School, the 12 cemetery at Liberty Methodist Church. 13 Q. Well, is that anywhere documented in the environmental 14 assessment? 15 A. No, sir, it is not in there. I have not seen evidence of a 16 public meeting or any questions being asked of the public as to 17 the changes in the right away. 18 Q. All right. Can you tell us how many lanes exist there now? 19 A. It is presently a substandard two-lane highway. 20 Q. And do you know what is projected for that area? 21 A. Yes, sir. At present it is projected to be a divided 22 median four-lane with a flush 14-foot median, two 12-foot-wide 23 north and southbound lanes, with some changes in the width of it 24 as it bypasses the historic area. 25 So it is going to have some shape as it moves up and down 0103 1 the 3.2 mile stretch. 2 Q. How about sidewalks? Will there be sidewalks connected 3 with with it? 4 A. Yes, sir. 5 Q. Both sides or one side? 6 A. It is my understanding that they are on both sides. 7 Q. Can you tell me, is that the, is that the same road that 8 you voted on in the referendum? 9 A. No, sir, it is not. 10 Q. Was it described in the referendum as a two-lane or 11 five-lane road? 12 A. It was actually described as an improved two-lane highway. 13 And had I known that there was going to be a change I would have 14 never voted positively for the referendum. 15 Q. All right, sir. Let me just ask you; do you have, is there 16 information about what is called Gatt Road being eliminated with 17 the resurfacing of the Walden extension? 18 A. Actually, that is a part of the total roads improvement 19 project. What was presented in some of the documentation, were, 20 of course, the 60 or so projects that are involved. One of 21 them, of course, was Houston Road as the two-lane, and the other 22 was what was called the Gatt Road Project, which was a 23 connection from Sardis Church and its interchange with the 24 interstate over to Highway 247. 25 And just prior to the vote, there was information listed in 0104 1 the paper that that project had been eliminated. And it was my 2 understanding that the reason that was done was to help ensure 3 that the referendum would be passed. 4 Q. Could you look at the document previously identified as 5 Plaintiffs' Exhibit 49 and tell me, tell me what that document 6 is, please? 7 A. It is a letter from Mr. Joseph Polladi, state urban design 8 engineer, to me. And it involves where I had asked, requested 9 of him some information about the road, why it had changed in 10 scope. 11 Q. Without going into it just tell me the date of it? 12 A. The date of it is April 2, 1999. 13 Q. Did this response answer your questions as relates to those 14 issues? 15 A. No, it did not. 16 Q. Okay. Can you tell me, do you have a chart, or board, that 17 illustrates what we are dealing with and the circumstances 18 before the referendum and the road was designed, and the road as 19 it is presently designed? 20 A. Yes, sir, I have a series of charts. And I, at some point, 21 would like to at least share them. 22 Q. Okay. Would you step up and let's identify the chart. 23 Please tell us the number of the chart in the back, what 24 the chart reveals. 25 MS. BRAKEFIELD: Your Honor, while he is coming to the 0105 1 chart, I don't want to interrupt at any time during his 2 testimony. Even under the court's ruling, as an expert, I do 3 not think there has been any testimony to lay a foundation for 4 transportation planning, even if the court agrees that he could 5 testify about the building of roads. So I would like to have a 6 continuing objection to any testimony that relates to 7 transportation planning during this testimony. Thank you, sir. 8 THE COURT: Well, that is noted and I don't, I haven't 9 qualified him as an expert in transportation planning. He is an 10 architect. He has had experience in building roads, mostly in 11 subdivisions. I look at Rule 702 as a fairly broad rule and I'm 12 going to let him testify, as I said earlier. It is not a 13 question of confidence but a question of credibility. 14 MR. HUBERT: Your Honor, we would -- 15 MR. ALMAND: We would also join in that objection. 16 THE COURT: All right. 17 Q. (BY MR. HUBERT) Mr. Hayes, take your first chart there and 18 tell us the number on it and tell us what it depicts. 19 A. The number on it is No. 67. 20 Q. All right. What is that chart, please, sir? 21 A. In an effort for me to understand the road system in the 22 area that I live in and, truthfully, hold very dearly to my 23 heart, I needed to have the self-confidence of what was 24 occurring in the area. And just by the basis of the planning 25 which I do every day of my life, I had to take a look at what 0106 1 the road system is, what it could be and what my thoughts were 2 about how it would impact my life. 3 This first board represents the area that occurs generally 4 from what we refer to as the Seven Bridges to the Houston, Peach 5 County lines. It goes over to Interstate 75 and to the Warner 6 Robins Highway, commonly known as Highway 247. And I did an 7 analysis of all of the roads in that area, or at least the major 8 roads, looking at some of the drainage basins, because, 9 obviously, living on Chriswood Drive, I'm well aware of the 10 drainage problems that have occurred over the years. And I 11 wanted to interject that into my analysis. 12 Q. Point out Chriswood Drive, please. 13 A. Chriswood Drive occurs right in this area right here, just 14 off of Liberty Church Road. And it is adjacent to the railroad 15 track which actually forms the dam for the drainage basin that 16 we referred to earlier. 17 This board also took into account existing traffic counts 18 in place. And what I did was take the DOT planning and zoning 19 traffic counts that have been in place since 1984, and put the 20 latest traffic counts that were available. 21 And the one thing I want you to understand is, that 22 everything I have done involved documents that I was able to 23 secure. Most of this represents information that I can put my 24 hands on, and other than my proposed analysis of the road system 25 represents what is there and information that anyone -- well, I 0107 1 won't say that because I have had some difficulty in obtaining 2 information. But the best I could do in getting information. 3 MR. ALMAND: If it please court, may I request an 4 objection that the witness answer questions as opposed to -- 5 MR. HUBERT: We are content with that. 6 THE COURT: Wait until he finishes the objection. All 7 right. 8 MR. ALMAND: Your Honor, the objection is, I request 9 Mr. Hubert pose questions and the witness answer the questions, 10 not the attorney moves to say what he wants to say. In a few 11 minutes he made all kinds of statements that are not responsive 12 to the question and many of them are objectionable. 13 THE COURT: All right. Properly, the examination 14 should be question answer, question answer. There should be no 15 volunteered information other than just what is necessary to 16 answer the question. Go ahead. 17 Q. (BY MR. HUBERT) Mr. Hayes, tell us, is there, is the 18 information that you have on that chart, information that 19 carries traffic counts that you believe to be accurate and 20 reflect the actual conditions there? 21 A. The traffic counts that are shown here are pulled directly 22 from the traffic counts provided by the Macon, Bibb County 23 Georgia DOT. The trend is pretty level for the last, '84 to 24 '97. 25 Q. All right. Do you have another board? 0108 1 A. Yes, sir. 2 Q. You have told us what we need to know on that chart, sir? 3 A. Yes, sir, I would, at some point, like to elaborate a 4 little bit on the traffic counts, but I don't think this is the 5 appropriate time. 6 Q. We'll get to the traffic counts in a moment. If you would 7 let us see the other board, please. 8 Give us the number of that board and tell us what the 9 purpose of that board is and who it is prepared for? 10 A. This is No. 68. 11 Q. All right. 12 A. Now, all of these boards were prepared for presentation to 13 the community. They have been presented to the technical 14 advisory committee, the executive committee, the public works 15 committee of Bibb County government. So they have been utilized 16 for the community to present their cases to our concerns about 17 Houston Road. 18 Q. All right. And what does that particular board deal with 19 in terms of graphically showing the environment, topography, or 20 just what does it show? 21 A. It takes a little elaboration, your Honor, to explain this. 22 THE COURT: So long as it is necessary to give an 23 answer to elaborate a little, you can do that. My instructions 24 had to do with volunteered information that is not necessary to 25 the answer. 0109 1 A. What I will try to accomplish with this board was to 2 actually analyze the property uses that presently exist in our 3 portion of the county. And taking those to look at how the 4 traffic flowed and where the outlets were for the various 5 streets. I was concerned if an overemphasis had been provided 6 on Houston Road, and I wanted to make sure that as I looked at 7 the development, and obviously living there, understanding the 8 traffic flow, making sure that the traffic flowed in the 9 direction that I followed and other members of the community 10 followed. And I have worked with the community in creating 11 these boards trying to get as much public input as possible. 12 Q. (BY MR. HUBERT) All right, sir. Now, I would like to 13 direct your attention to the traffic information as relates to 14 traffic counts. 15 Do you find that there is a disparity, or not, in the 16 traffic count information available in the EA and your studies, 17 sir? 18 A. Well -- 19 MR. ALMAND: Now, may it please the court, again, on 20 the question of qualification, I have heard nothing to say that 21 this man is a traffic engineer or traffic expert or any training 22 or experience, and qualified to do traffic counts. 23 THE COURT: You are going to need to do some 24 foundation here. 25 MR. HUBERT: Your Honor, I will do a foundation with 0110 1 the notion that a person, seems to me, develops plans and 2 presents them to planning departments -- 3 THE COURT: We are wasting time now. 4 MR. HUBERT: I understand. 5 THE COURT: Go ahead and lay a foundation and then he 6 can testify. 7 Q. (BY MR. HUBERT) State what information you have and use 8 regularly that deals with traffic counts and how you deal with 9 them, sir. 10 A. Traffic counts are done in a couple of ways. One is they 11 are physically taken on the ground. The other is they are 12 projections given as to what will occur with traffic counts. 13 Q. All right. Tell us what use you make of them, if you do, 14 in your profession and your activities, occupationally, every 15 day? 16 A. Actually, in every day practice, we have very little use of 17 traffic counts. What I did in this situation was not try to act 18 as a traffic engineer or create traffic counts. What I did was 19 analyze the traffic counts that were provided in both the 20 Georgia DOT slash planning and zoning traffic counts and the 21 traffic counts that were ultimately used to make the decision on 22 whether Houston Road would be sent to construction or whether it 23 would have to have further evaluation. 24 Q. Do architects use those traffic counts in the fashion that 25 you are using them in their practice, Mr. -- and do you do the 0111 1 same thing? 2 A. Well, we have to have a semblance of traffic counts to 3 determine how big roads need to be, how big driveways need to 4 be, the number of driveways that are involved. 5 Q. All right, sir. You did not do the actual traffic 6 engineering or traffic counting yourself, did you? 7 A. I did not. 8 Q. And you don't hold yourself out as a traffic engineer? 9 A. I have never. 10 Q. Okay. Tell us what you learned from the traffic count, 11 sir? 12 MR. ALMAND: May it please the court, same objection. 13 That is no qualification of this man as an expert. He admits 14 that he is no expert in traffic engineering. What he is 15 undertaking to do is analyze data prepared with no background 16 for doing so. The fact he may use traffic data to design 17 150-acre road or to figure out where he is going to put a 18 driveway along a highway does not make him qualified to analyze 19 traffic counts. 20 MR. HUBERT: Your Honor, the notion you have to be a 21 traffic engineer to refer to traffic counts is not very well 22 founded, I believe, and common sense or in the law, or in the 23 brues (sic) of evidence. Of course, you can use a compilation 24 of information without being an expert in that information. 25 That is all a traffic count is, a compilation of information. 0112 1 THE COURT: All right, objection is overruled. Go 2 ahead. 3 Q. (BY MR. HUBERT) How did you use them, sir? 4 A. What I did, and that will show up in graphic form a little 5 bit later in some of the boards, but the decision that was 6 utilized by the executive committee to make the final decision 7 on Houston Road is called the Post-Buckley traffic counts. What 8 it did was take actual traffic counts, do projections, and, 9 well, actually, it took 98 existing on-ground traffic counts. 10 And then it projected from that point. 11 What I discovered, as I looked at the Post-Buckley traffic 12 counts, is from the year 1997 to the year 1998, the traffic 13 counts in some places increased as much as 40 percent in one 14 year from '97 to '98. They increased as much as 400 percent in 15 some cases from 1997 to '98. 16 As I look back across the graph provided by DOT and 17 planning and zoning, this was very, very inconsistent with what 18 had occurred. And beyond that, I analyzed the growth that was 19 projected by Post-Buckley, which was approximately, I think, 1.2 20 percent. And the traffic counts, with a growth of 1.2 percent, 21 jumped as much as 40 up to 400 percent increases. Which was 22 very irrational. 23 Q. Can you tell me if the DOT's traffic counts agree with the 24 Post-Buckley report? 25 A. The DOT traffic counts that I have available to me end in 0113 1 1997. The Post-Buckley traffic counts begin in 1998. The 2 discrepancy of 40 to 400 percent occurred in the year from 1997 3 to 1998. And -- 4 Q. In Bibb County, do they have traffic counts that accord 5 with that? 6 A. They are synonymous with the DOT traffic counts. 7 Q. What does that indicate, if any anything, to you? 8 A. It indicates to me that there is some very poor 9 information. There was poor modeling, or that the traffic 10 counts were not reviewed because they, their, they could not 11 increase that much in one year. 12 Q. All right. Now, tell me, is the Post-Buckley traffic, is 13 that one of many reports that have come out with the same 14 results and has the public seen those results? 15 A. I have basically only seen the Post-Buckley traffic 16 counts. I have been told by the technical advisory committee 17 and the executive committee that there have been numerous 18 traffic counts done. But the only ones that were provided to me 19 were the Post-Buckley. And those are the ones that the decision 20 process was based on. 21 Q. Have they been available to the public? 22 A. They were presented at an executive committee meeting and 23 some copies were distributed to the public. 24 Q. Can you tell me about any, did you prepare a board or do we 25 have a chart dealing with the drainage issues? 0114 1 A. I have a little bit of information here that deals with 2 drainage. If I could get another board up. 3 Q. Yes, please. Just designate what the board is. 4 A. This board is No. 69. Now, it serves a multitude of uses. 5 It serves the use of showing the general zoning in the area. 6 That being either residential, commercial, and a great deal of 7 undeveloped, unused land that is presented in the 2015 8 comprehensive plan. 9 And that is another basis that I have used to provide my 10 data, is the plan that is a public instrument that plans out for 11 what the community will be doing over the next 15 years. And 12 this is updated on a, not an annual basis but a periodic basis. 13 And what this board shows is that there are discrete 14 drainage areas and wetlands that occur in this area. And these, 15 again, were taken in the 2015 comprehensive plan. One of the 16 wetlands comes near the airport. It crosses Walden Road. It 17 crosses the railroad track at the dam that is created by the 18 railroad track, and then it comes back in behind Ms. Meggs and 19 Ms. Varnadore's home, and then eventually crosses the Houston 20 Road just north of this interaction with Sardis Church Road and 21 slightly south of Liberty Church Road. And then there is 22 another finger of the wetlands that crosses up on Sardis Church 23 Road. And this shows the wetland's area. And, also, you can 24 depict here that the major detaining pond that was built was 25 right in this area. 0115 1 Q. Mr. Hayes, can I ask you, is a chart like that, or any map 2 or plat of a similar nature, provided in the environmental 3 assessment? 4 A. No, sir. 5 Q. Can you tell me if that chart or plat would be helpful to a 6 decision maker as to what the effect of this road will be on? 7 A. This would be of some help. There, of course, would be a 8 great deal more information that would have to be put together. 9 Q. Does that chart depict what will happen down stream as 10 relates to the flooding and impact? 11 A. It shows the routing that the water will follow. 12 Q. Was the down stream impact flooding shown in the 13 environmental assessment, sir? 14 A. The only statement, or the few statements I saw was that 15 the flood plain did not cross Houston Road. 16 Q. Is that information correct, as you understand it? 17 A. Well, it is not, when I developed the information from the 18 2015 plan. That clearly shows the flood plain crossing Houston 19 Road. 20 THE COURT: Let me ask a question. Which one of those 21 is Houston Road. Which road are we talking about? 22 THE WITNESS: This is Houston Road and its 23 intersection with 247. Then it follows this line, eventually 24 crosses into Houston County, crosses the Industrial Highway and 25 then becomes Houston Lake Road and Houston County. 0116 1 THE COURT: Where does this project end, where does 2 the 3.2 males end? 3 THE WITNESS: The 3.2 miles starts here and ends at 4 this point. 5 THE COURT: What intersection is that? 6 THE WITNESS: That is the intersection of Sardis, 7 Walden and Houston Road. 8 Q. (BY MR. HUBERT) Mr. Hayes, can I draw your attention to 9 something called the Mike Windom Study. Are you familiar with 10 the Mike Windom Study? 11 A. Yes, sir, I have briefly looked at it. Especially the 12 letter. 13 Q. All right. Can you tell me if -- have we got a number for 14 that? 15 I show you a document identified as 65. Drawing your 16 attention to 65, what information, if any, did that document 17 supply you in terms of any of the work you did? 18 A. I did not have this document at the time I created any of 19 my work. 20 Q. Has it caused you to change your conclusion, opinions or 21 graphs and charts in any way? 22 A. Actually, it has reinforced some of the things I have been 23 saying for a year and a half. 24 Q. Can you tell me what use was made of that study, if any? 25 A. As far as I know, it has never been used. I don't find any 0117 1 information in the environmental assessment that refers to 2 this. 3 Q. Who authorized the Mike Windom Study and asked that it be 4 done? 5 A. The letter that I'm referring to here, it is addressed to 6 Mr. Tad Russell with Macon, Bibb County Road Improvement 7 Program. 8 Q. Has that document ever seen the light in terms of the 9 public or any official document that you know of? 10 A. I do not know. 11 Q. Can you tell me if you know of any reason why it would not 12 be used in an environmental assessment or an assessment of what 13 kind of job was done in the environmental assessment? 14 A. What is addressed in this letter is very critical to the 15 environmental assessment, and some of the flooding that is 16 occurring in the area. 17 Q. All right, sir. Now, let me ask you to address yourself or 18 draw to your attention some of the safety issues. Do you have a 19 chart that shows where the, any of the issues are as relates to 20 automobile accidents or safety issues are concerned? 21 A. There are a couple of things that I have requested 22 information on. And one of them has been this intersection at 23 the northern end of Houston Road. And my concern has been how 24 two roads program would address that intersection. Now, I have 25 a picture of that that I, that illustrates much better what I'm 0118 1 trying to show here. 2 Q. Let me have the photograph, please. 3 A. It is on the stand. 4 Q. All right, sir. 5 A. This photograph, your Honor, shows a -- 6 Q. Please identify it by number. 7 A. Excuse me. It is Plaintiffs' Exhibit 71. 8 Q. All right. You are looking at P-71, which purports to be a 9 photograph? 10 A. It is a photograph of -- 11 THE COURT: Let me stop you a second. Has counsel 12 seen all of these? Show them. Let's get them in evidence 13 before we go on. 14 Q. (BY MR. HUBERT) While you are doing that, I wonder if you 15 would respond to a few questions, in the interest of time? 16 Who took the photographs, sir? 17 A. I took those photographs. 18 Q. Can you tell me when you took the photographs? 19 A. Those photographs were taken at least a year or a year and 20 a half ago. 21 Q. And do they now, and did they at that time, accurately 22 depict that which they purport to represent? 23 A. Yes, sir. 24 Q. Is there anything that was done in terms of taking those 25 photographs that would represent distorted or photography, or 0119 1 trick photography or anything of that sort? 2 A. No, sir. 3 Q. Okay. Did you have them developed? 4 A. Yes, sir, I did. 5 Q. And do you rely on them in your professional judgment to 6 make an assessment of what has happened in this case? 7 A. Yes, sir. 8 Q. Okay. Can you tell me, sir, what the, what the photograph 9 that you were -- 10 MR. ADERHOLD: Here is the one in question. 11 THE COURT: Do we have any objections to these 12 photographs? 13 MS. BRAKEFIELD: Some of them, your Honor, but not the 14 one in particular, other than it is outside the project. So we 15 would contend it is not relevant to the matter before the 16 court's consideration. It is what it purports to be, I think, 17 but it is outside the scope of this project. 18 Q. (BY MR. HUBERT) Let me show you, I place back in your hand 19 P-71. As it relates to P-71, tell me what that represents. 20 A. This photograph represents the intersection northbound of 21 Houston Road and Highway 247, which occurs at this location. 22 Q. All right, what does it show to you as it represents any 23 safety concern? 24 A. Well, obviously the reason I took this photograph is 25 because I traveled this road. And what it depicts to me and has 0120 1 been for years, a very unsafe condition. Because the road goes 2 under a bridge with two bridge abutments on either side. It 3 makes a turn. Then it interconnects, which I think right now is 4 a six-lane highway at, not a 90-degree intersection, but a much 5 different intersection where you cannot see southbound until you 6 are almost out into the northbound lanes of the Warner Robins 7 highway. 8 Q. How many traffic lanes are there, sir? 9 A. There is one, presently. 10 Q. Is there any blindness? 11 A. Oh, yes, yes. You cannot see until you are completely 12 under the bridge and out into the intersection itself. And the 13 Warner Robins Highway is a 55 miles an hour six-lane divide 14 medium highway. 15 Q. Does any statement, report, or assessment that you have 16 seen, contend that that is a safe intersection or -- 17 MS. BRAKEFIELD: I'm sorry -- 18 MR. HUBERT: Excuse me, I will withdraw it. Let me 19 rephrase it. 20 Q. (BY MR. HUBERT) What if anything -- how in any way has 21 that intersection been addressed in the environmental 22 assessment? 23 MS. BRAKEFIELD: Your Honor, my objection to this 24 question is that this is outside the scope of this project and, 25 therefore, by its very location was not addressed in any way in 0121 1 this document. And such a question, we admit it was not 2 addressed, but it is irrelevant to this project. 3 MR. HUBERT: We would like an opportunity to connect 4 it up with the project and show its close proximity and how it 5 has to affect the project, sir. 6 THE COURT: Well, is it at that intersection where the 7 project begins? 8 MS. BRAKEFIELD: Your Honor, this location, so far as 9 I understand it, and the witnesses will testify, but it is 10 outside the limits of the construction project that is at issue 11 before the court. 12 Q. (BY MR. HUBERT) Explain where it is -- 13 THE COURT: I will allow -- I'm not sure that it is 14 relevant but I'm not sure that it is not. So go ahead. I will 15 listen to it. 16 A. The relevancy that I see is that it is outside the 17 project. That is the biggest question that I have raised in 18 this whole process. And the reason it is so relevant is the 19 fact that you are going to stop two northbound lanes about a 20 hundred yards short of this bridge abutment, expect cars going 21 north to merge into one lane and then transition under this 22 bridge into a six-lane highway. 23 And I will be quite honest with you. I have asked the 24 state why this was not considered. And have been told that it 25 will be, one day, but we are going ahead with the project as it 0122 1 is. And I am gravely concerned for my family and my personal 2 safety with this unsafe issue. 3 Q. (BY MR. HUBERT) Can you tell me if any other safety issues 4 were addressed, unaddressed or addressed unsatisfactorily, in 5 terms of the assessment, environmental assessment? 6 A. I really kind of pinpointed this and have not analyzed any 7 of the other issues. 8 Q. Let me ask you, do you need further photographs? 9 While you are looking at that, may I ask you to relate back 10 to the Windom Study and tell me what the date of the Windom 11 Study was. 12 A. May the 18th of 1998. 13 Q. And when was the date of the environmental assessment? 14 A. August 18, I think, 1998. 15 Q. The Windom Study was an extant document and existed at the 16 time of the environmental assessment and was not referred to? 17 A. Yes, sir. According to these dates. 18 Q. All right. Do you need any further photographs to 19 illustrate that chart or bring any safety issues before the 20 court? 21 A. The only -- 22 MR. ALMAND: May it please the court, I object to that 23 question, again, giving the witness free reign to say what he 24 wants to say. I think we need a specific question and answer. 25 MR. HUBERT: Legal objection, your Honor. If the 0123 1 objection is that it gives the witness free right to say what he 2 needs to say, I would like to know how and in what way that is 3 an improper question. 4 THE COURT: Well, you asked him if there was any other 5 document or photograph he needs to bring before the court. Was 6 that the question? 7 MR. ALMAND: Yes. 8 MR. HUBERT: Dealing with the safety issue, relevant 9 to the safety issue. 10 THE COURT: I think it is a fair question. 11 Overruled. 12 MR. HUBERT: All right. 13 Q. (BY MR. HUBERT) Please look at the documents there and 14 tell me, do you have another safety issue document in that 15 stack? 16 A. No, sir. 17 Q. Now, may I ask you to address the issue of the business 18 impact of this roadway as planned in the direct community there, 19 and do you have a chart that illustrates that? Give us the 20 number of the chart? 21 A. This chart is No. 70. Effectively, what this chart does, 22 is look at the 2015 comprehensive plan and address the issue of 23 where future development, as well as existing development, is 24 occurring. 25 The area that I'm involved in that has some concern. There 0124 1 is a day care center that occurs in the Houston Road area that, 2 at this point, is losing all but about 25 feet of its front yard 3 in the process, and is struggling to determine how to resolve 4 the issue of staying in business. 5 There is also a tire store on this north end that is very 6 close to the existing right-of-way, and from information from 7 them, they are going to have to close because they do not have 8 access to their facility. Which is contrary to statements made 9 in the environmental analysis that -- 10 THE COURT: Wait a minute, you are volunteering. Just 11 answer the question. 12 THE WITNESS: Okay. I'm sorry. 13 Q. (BY MR. HUBERT) Is there a, still unresolved issues as 14 relates to the effect on those businesses? 15 A. I know for a fact Children's Friend is unresolved at this 16 point. Because they are one of my clients. 17 Q. All right. How about the tire store? 18 THE COURT: Now, you can't speculate. You can't 19 guess, you know, just, you have got to have knowledge, actual 20 knowledge to testify. 21 A. I know that they have a going out of business in their 22 window. That is the information I have. 23 Q. (BY MR. HUBERT) Let me draw your attention to the 24 environmental effect of increasing the size of this roadway from 25 two to five lanes. What do you anticipate will be the 0125 1 consequence of that, sir, in terms of the ecology? 2 A. That, that is a very, very detailed question, Mr. Hubert. 3 Let me just briefly -- 4 THE COURT: Let me step in here. You ask him about 5 what it would do to the ecology. Ecology of what? And then if 6 it is what I'm thinking you are asking him, he has not shown any 7 expertise in that field. I mean, it may be beyond -- we have 8 rather loose guidelines about experts, but I don't believe that 9 he can get involved in -- 10 MR. HUBERT: I will rephrase the question. 11 THE COURT: All right. 12 Q. (BY MR. HUBERT) Do you see any adverse effect on trees, 13 foliage, vegetation or on the area of soil that may be laid bear 14 by a five-lane road going in from what is now a two-lane road, 15 sir? 16 THE COURT: Why don't you ask him -- that was a very 17 leading question -- why don't you just ask him what effect would 18 it have on the surrounding countryside or something like that? 19 Q. (BY MR. HUBERT) What effect would it have on the 20 surrounding countryside? 21 A. Presently, in some of these pictures, some of these 22 pictures depict what presently exists in the area. 23 Q. All right. Let's identify them, please, sir, if that is 24 the case. 25 A. No. 78. 0126 1 THE COURT: All right, now, wait a minute. We have 2 got a whole bunch of pictures here and we haven't -- I 3 understand there are some objections, and I guess we need to get 4 these into evidence before we start. 5 MR. HUBERT: Your Honor, I'm going to identify them. 6 I would like to identify them, and when I get ready to offer 7 them -- 8 THE COURT: Wait a minute. He can't testify about 9 them until they are in evidence. 10 MR. HUBERT: Just to identify them, judge, is all I 11 was going to do. Just let him identify them. If they 12 accurately depict that which they purportedly depict and the 13 subject matter they are to deal with, and then when it gets time 14 to admit them I was going to admit them subject to objection. 15 THE COURT: Well, are you going to ask him if all of 16 these pictures are accurate depictions of what they are supposed 17 to represent? 18 MR. HUBERT: That is correct. 19 THE COURT: All right. 20 Q. (BY MR. HUBERT) I would like for you to go down and list 21 the numbers, Mr. Hayes, of those pictures, so I can ask you, in 22 gross, who took the pictures and what they depict. 23 A. No. 74. 24 Q. All right. 25 THE COURT: Why don't you ask, did he take all the 0127 1 pictures? 2 MR. HUBERT: Yes, sir. 3 THE COURT: Why don't you ask him if he took all the 4 pictures, and they are accurate, and that this includes numbers 5 blank through blank. We need to save time. We are running out 6 of time. We are going to run out of time. But, nevertheless, 7 go ahead. 8 Q. (BY MR. HUBERT) Just read off the numbers, please, sir, 9 quickly. 10 A. Seventy-four, 75, 73, 72 and 78. 11 Q. Did you take those pictures? 12 A. Yes, sir. 13 Q. Do they accurately depict that which they purport to 14 represent? 15 A. Yes, sir. 16 Q. And what subject matters do they deal with, generally? 17 A. They show the right-of-way along Houston Road, which is a 18 canopy tree right-of-away. 19 MR. ADERHOLD: Just for clarification; when were they 20 made? 21 THE COURT: Yeah. 22 Q. (BY MR. HUBERT) When were they made, sir? 23 A. They were made sometime in '98. I couldn't tell you when. 24 MS. BRAKEFIELD: Can we see just those, judge? I 25 think we saw a whole bunch more and we'll make whatever 0128 1 objections we have and move on. 2 THE COURT: Yeah. Go ahead. 3 MS. BRAKEFIELD: No objections, your Honor, from the 4 state. 5 MR. ADERHOLD: No objections from the government. 6 MR. ALMAND: I don't have any questions on the 7 authenticity at this time. There may be some on other issues at 8 the time he goes to admit them. Which I understand he has not 9 admitted them yet. 10 MR. HUBERT: If there is -- 11 THE COURT: We are going to question about them now. 12 MR. HUBERT: No, I was going to admit them and leave 13 it alone, judge. 14 THE COURT: Okay. 15 MR. HUBERT: I move the admission of 72, 73, 75, 74 16 and 78. 17 MR. ALMAND: If it please the court, the objection I 18 had goes back to the points the court made at the very beginning 19 of this hearing in terms of what evidence would be admissible 20 under the APA. And the court settled that out and points were 21 made by the Eleventh Circuit case referring to the Ninth Circuit 22 and I object that these pictures don't go to anything that comes 23 under that rationale the court explained at the beginning of the 24 trial. 25 THE COURT: The pictures are taken within the 3.2 0129 1 miles, or not? 2 MR. HUBERT: Yes, sir. 3 THE COURT: They are taken within the 3.2 miles. 4 THE WITNESS: Yes, sir. 5 THE COURT: Let's, let me refocus on what we are here 6 to decide. 7 The question is whether or not the environmental 8 assessment was properly done or whether it was capricious and 9 arbitrary. I can't think of any other way to get to that 10 question without letting the plaintiffs point out where they 11 think it is capricious or arbitrary. If I can, if I just limit 12 them to saying, well, here is, here is the report, and we don't 13 think it is properly done. That doesn't show me anything. I 14 feel like I have got to let them -- 15 I'm not, just because I am admitting this evidence of 16 their view of things doesn't mean that I am going to sit down 17 and decide which one of these plans I would prefer or which one 18 of these plans anybody else would prefer. But I've got to have 19 some point of reference here. So I am going to let the pictures 20 in and then we will just take up the evidence as we come to it. 21 MR. HUBERT: All right, sir. 22 Q. (BY MR. HUBERT) As relates to the environmental issues, 23 Mr. Hayes, are there any other environmental issues that you 24 regard as unresolved by the environmental assessment? 25 A. Well, I am, the flooding issue, as far as I am concerned, 0130 1 is not resolved. The flood plain problems with the road are not 2 resolved, the best I understand it. The intersection, whether 3 it is a part of the project or not, is not resolved. The size 4 of the road is a real question that I don't think was properly 5 considered in the alternatives. 6 Q. All right. Can I ask you to turn to the questions of 7 procedures. And that is, Mr. Hayes, can you state whether or 8 not, in your attempt to obtain information, the governmental 9 agencies involved, have been responsive and sensitive to the 10 need to supply information to the citizens? 11 A. They have not been responsive. 12 Q. Does that concern you, sir? 13 A. It really does. 14 Q. Aside from the letter that you wrote to Mr. Palladi in 15 response back; have you gotten any other responses from any of 16 the governmental -- 17 MR. ALMAND: Your Honor, are we through with the 18 charts so the witness can take the stand again and I can go back 19 and sit down? 20 THE COURT: Do you want to deal with these charts 21 anymore. 22 MR. HUBERT: I don't think so. 23 THE COURT: Go back and take the stand if we are not 24 going to deal with the charts anymore. 25 Q. (BY MR. HUBERT) He is asking you, did you have any other 0131 1 communication in writing, Mr. Hayes, to the responsible 2 governmental entities in which you got a written response other 3 than Plaintiffs' 49? 4 A. I received a letter from, I received a letter with someone 5 at Morland Altobelli discussing the traffic count that was in 6 possible error at the intersection of Houston Road and Hartley 7 Bridge Road. And the conversation basically was that this was 8 an error in the traffic count book, and they would do some 9 further evaluation to determine what the correct figures should 10 be. 11 Q. Has any change occurred in the environmental assessment 12 from, any information that you have brought to their attention? 13 A. No, sir. 14 Q. Have you learned what it takes to get a change in the 15 environmental assessment? 16 A. I haven't learned yet. 17 Q. Is it likely that you think anything you can do would cause 18 them to change their assessment? 19 A. No, sir. I do not. 20 THE COURT: I believe that is speculation there. 21 MR. HUBERT: Judge, if you want to exclude it, it is 22 his opinion and impression. 23 THE COURT: All right. 24 MR. HUBERT: He is with you. 25 MR. ADERHOLD: No questions from the government, if 0132 1 your Honor please. 2 MR. ALMAND: I have very few, your Honor. 3 THE COURT: All right. 4 CROSS-EXAMINATION 5 BY MR. ALMAND: 6 Q. Mr. Hayes, in preparing for your testimony today, or 7 preparing for the opinions that you have expressed through these 8 charts; did you consider and are you familiar with Technical 9 Advisory Memo T6640.88? 10 A. No. 11 Q. Have you reviewed the requirements of the Code of Federal 12 Regulations of 771101 through 119? 13 A. No, sir, I have not. 14 Q. All right, now, Mr. Hayes, you pointed out that the 15 Post-Buckley study, you found to be flawed because you found 16 errors between 40 and 400 percent. 17 Now, would you tell me specifically where, in the 18 Post-Buckley study, did you find those alleged errors? 19 A. It is item 3789 in the data that was provided at the 20 beginning of the testimony. It shows increases from 1997 to 21 1998 -- 22 Q. Excuse me. May I see what you are looking at? 23 A. It is in that big book we provided, on page 379. 24 Q. Just to make sure am I looking at the same thing you are 25 looking at. 0133 1 A. Yes, sir. 2 Q. All right. All right. Now, who prepared the Houston Road, 3 who prepared 379, as you are calling it? 4 A. The base document, without the items with clouds on it, was 5 done by Post-Buckley. The clouded items that are shown in the 6 notes that are in freehand were prepared by me. 7 Q. All right. Now, so I can understand this, and let's mark 8 this so the court can understanding what we are talking about. 9 We need to have an exhibit number on this. 10 MR. ALMAND: Your Honor, I will just label this, as I 11 have two clients, Defendants' Bibb M, Bibb Macon 1. 12 Q. (BY MR. ALMAND) Let me hand you what I have marked, and 13 let me borrow yours. 14 Now, the numbers that are handwritten on there are numbers 15 that you put on there; is that correct? 16 A. That is correct. 17 Q. But the underlying chart came from where? 18 A. It came from the Post-Buckley report that was presented to 19 the executive committee as the traffic counts that was the 20 decision making entity that allowed them to vote to proceed with 21 Houston Road. 22 Q. All right. Now, and I notice on the underlying chart there 23 is printed on there numbers, 8600, 2000, 1800; what do those 24 numbers represent? 25 A. I am sorry -- 0134 1 Q. In looking at the exhibit you have printed numbers? 2 A. Yes. 3 Q. 1800 and then a little later, 8800. You see that? 4 A. Yes, sir, 1800 and 8800. 5 Q. All right. Then on Hartley Bridge Road you have got 6 numbers 11,800 and 8,200; is that correct? 7 A. That is correct. 8 Q. Those numbers came from Post-Buckley? 9 A. That is correct. 10 Q. Now, above each one of those numbers you have a handwritten 11 number? 12 A. Yes, sir. 13 Q. That is the number you put on there? 14 A. Yes, sir. 15 Q. Where did that number come from? 16 A. That number represents the increase that occurred from 1997 17 to 1998. In other words, the 8800 that you see there, the 18 number to the left of it that is referred to as 7,000, the 19 Post-Buckley report indicates there were 7,000 additional cars 20 that occurred at that point on Sardis Church Road from the 21 planning and zoning slash DOT traffic counts for the previous 22 year. In other words, there were seven thousand more cars at 23 that location in '98 over 1997. 24 Q. All right, sir. So the 7,000, explain to me again what 25 does the number 7,000, handwritten in there by, you mean? 0135 1 A. The planning and zoning slash DOT traffic counts for 1997 2 were 1800 cars. The Post-Buckley 1998, and it says existing 3 1998 average daily traffic count, shows it to be 8800, which is 4 an increase of 7,000 cars from 1997 to 1998 at that particular 5 part of the road. 6 Q. All right. Would that be the case with each one of these 7 numbers that you put in there, would that be the same 8 explanation? 9 A. Yes, sir. 10 Q. Okay. Now, Mr. Hayes, you begin, you testified somewhat 11 concerning the issue of drainage. Let me ask you this: Since 12 1994 there has been constructed a very substantial drainage 13 detention pond on the west side of Houston Road; is that 14 correct? 15 A. That is correct. 16 Q. All right. And that drainage pond was constructed, or 17 growing out of a lawsuit that was filed by many of the residents 18 of Chriswood? 19 A. I don't know that for a fact. 20 Q. The purpose of that detention pond was to alleviate or 21 resolve flooding problems that exists in the Chriswood area, 22 wasn't it? 23 A. It was done to resolve part of the problems. There is more 24 than one drainage area that comes into Chriswood. That happens 25 to be one of the, I know of one of the three that I know of that 0136 1 comes into the Chriswood area. 2 Q. All right. Are you aware of any studies that have been 3 done that addresses the question of increased runoff because of 4 the construction of Houston Road, or proposed construction of 5 Houston Road? 6 A. The Mike Windom report that we talked about a few minutes 7 ago addresses a need for an additional detention facility on 8 Houston Road to control the water runoff from the five-lane 9 road. 10 Q. You read that in the Mike Windom report, Mr. Hayes? 11 A. Yeah, in the letter. 12 Q. Did Mr. Windom recommend the construction of an additional 13 detention pond to control the runoff from the construction on 14 Houston Road? 15 A. What, and if I had that in my hand, I would read exactly 16 what it says to you. 17 MR. HUBERT: Let the record show I have handed him 18 P-65. It is not in the big book, it is a P-65, a separate 19 document identified outside the larger P-1 book that we 20 provided. 21 Q. (BY MR. ALMAND) You want to point out -- 22 A. It says on page 2, the next to the last paragraph, the last 23 sentence of that paragraph, it says, based on this fact I 24 recommend that a storm water detention facility be constructed 25 at the site in conjunction with the widening and improvements of 0137 1 Houston Road. 2 Q. Which site is he speaking of? 3 A. If you will look on the very next page, which is a map. It 4 shows a site that is marked, site, on the right-hand side, about 5 the middle of the page. 6 Q. Okay. And you are speaking of the area on the map that 7 says the word, S-I site? 8 A. It says, S-I-T-E, site. 9 Q. Okay, thank you you. 10 MR. ALMAND: I have no further questions, your Honor. 11 MS. BRAKEFIELD: I have nothing on behalf of the state 12 your Honor. 13 MR. ADERHOLD: We have already announced no questions, 14 judge. 15 REDIRECT EXAMINATION 16 BY MR. HUBERT: 17 Q. You are looking at Plaintiffs' Exhibit 65? 18 A. Yes, sir. 19 Q. And that is the Tribble/Richardson, Inc., called the Windom 20 Study? 21 A. Yes, sir. 22 Q. Do you know of any efforts to try to get that study from 23 the firm of Tribble & Richardson? 24 A. In our meetings in the community, one of our members tried 25 to obtain that study from the county. And they were told they 0138 1 could not obtain that study because it had not been paid for. 2 Q. That is, Tribble & Richardson had not been paid? 3 A. That is correct. 4 Q. Do you connect in any way, Mr. Hayes, the fact that this 5 recommends another detention pond with a sudden inaccessibility 6 of this study for general publication to the public at large -- 7 THE COURT: Mr. Hubert, now listen to me. When I am 8 about to call you down, I don't expect you to keep talking. You 9 are leading in the most flagrant way. I mean, that, that 10 sounded more like closing argument to me, than a question. 11 We'll be in recess for 15 minutes. I have a pretrial 12 conference I have to attend to. It may be a few minutes 13 longer. Won't be any longer than 20 minutes. 14 (Recess) 15 THE COURT: Now, let's talk about time. I have to 16 leave Macon by 5:00 today to go to Atlanta. I have something 17 that I have got to do tonight in Atlanta. Tomorrow morning we 18 are going to pick a jury in a case that is going to start on 19 Monday. But I will be, after we pick that jury, I will be free 20 and we can resume this hearing and hopefully complete it, if we 21 are not through with it today. We'll find the time to hear 22 whatever witnesses are necessary. 23 All right. Let's proceed. Mr. Hubert. 24 MR. HUBERT: Yes, sir. Thank you, your Honor. 25 Q. (BY MR. HUBERT) Have you done anything to bring to the 0139 1 attention of the authorities in this case, Mr. Hayes, plans to 2 alleviate the drainage problems that exist out there that you 3 have raised in your chart, sir? 4 A. I think there are a couple of things I could show you, if I 5 could go -- 6 MR. ALMAND: May it please the court, I hesitate to 7 interrupt, but I did not go into this on cross. I think 8 redirect goes only to the matters covered on cross. 9 THE COURT: That is true. 10 MR. HUBERT: Drainage is what I had reference to, 11 judge. He went into drainage. 12 MR. ALMAND: All I asked him was a question about a 13 report. Show me in the report where his testimony came from. 14 THE COURT: I think he is right. I don't believe -- I 15 have got to be a real stickler on redirect and recross, because 16 if you don't, the witnesses never get off the stand. So -- you 17 can only base your redirect on what he brought up on cross. 18 MR. HUBERT: Your Honor, in trying to comply with your 19 ruling, it is, I am certain that we talked about drainage 20 issues, and whether or not we had the last report on the 21 drainage issue available to the public. And I, my question is, 22 whether he has done anything else to bring the drainage issues 23 to the public -- 24 THE COURT: Well -- 25 MR. HUBERT: I think it is within the area, judge. Is 0140 1 what I'm saying, in all due respect. 2 THE COURT: Mr., I don't want to stop and find out 3 what question Mr. Almand asked, but -- 4 Mr. Almand, what question did you ask him? 5 MR. ALMAND: Your Honor, I asked him to refer me, in 6 the Mike Windom report, where it was he found the statement 7 about the fact that a detention pond was necessary. He showed 8 me that and I stopped. All I asked him was to show me in the 9 report, the Exhibit 65. 10 THE COURT: Regarding the retention pond. 11 MR. ALMAND: Yes, sir. 12 THE COURT: All right. I'm going to allow one 13 question on that, because that does -- but go ahead. 14 Q. (BY MR. HUBERT) Would it help you to refer to the chart? 15 A. Yes, sir. 16 Q. Tell me what the chart shows and how it would help. 17 A. I'm referring to chart No. 73. What this chart shows is 18 some possible alternatives that the community developed in an 19 effort to help resolve the road system, and potentially some of 20 the drainage issues that presently exist in the area. 21 Effectively, what we did was reduce Houston Road to a 22 two-lane, which would drastically reduce the amount of 23 impervious material and pretty much let it follow its same 24 course, with modifications to bring it up to a standardized 25 roadway system. 0141 1 Then we took the Industrial Highway and made it an improved 2 four-lane which is an area, in an area beyond the drainage 3 problem that presently exists, and allows us to divert the 4 traffic on that side and keep from impacting the drainage system 5 that is on this side of the outlet of the drainage basin. 6 MR. ALMAND: If it please the court, that is not even 7 responsive to the question. His question was so general you 8 can't tell what the answer is going to be. But that is clearly 9 beyond anything I went into owning cross-examination. Other 10 roads, other alternatives. 11 MR. HUBERT: Your Honor, what we, what we are dealing 12 with in response to this is whether or not important drainage 13 information was given to the governmental authorities. We had a 14 report which had important site information that apparently was 15 not brought to them before the assessment was made, and this 16 information, which was brought to them before the assessment was 17 made, was so eliminated. That is the purpose of the testimony 18 and it is relevant notwithstanding the objection. 19 THE COURT: I believe he has answered your question. 20 And I said there would be one question. So that is it. 21 MR. HUBERT: He is with you. 22 MR. ALMAND: No further questions. 23 THE COURT: All right. No further questions. You may 24 step down. 25 MR. HUBERT: Mr. Hayes, you come down. Your Honor, 0142 1 with that we would introduce our documentary evidence and rest 2 on behalf of the plaintiffs in this case. 3 THE COURT: All right. 4 MR. HUBERT: I believe we have introduced and have 5 introduced, subject to the, subject to your, the court's further 6 determination on Exhibit 53, that document in evidence and the 7 court has reserved ruling on the November 11. 8 We have moved the admission of No. 5, Plaintiffs' 9 Exhibit 5, which is identified by Mr. Kulash as nothing more 10 than his vitae, and I think there is no objections to that. 11 MR. ADERHOLD: No objections from the government, your 12 Honor. 13 THE COURT: All right. 14 MR. ALMAND: Your Honor, the only, can I just have a 15 standing objection as to any of these exhibits that go beyond 16 the purposes outlined in the case for which evidence can be 17 received in this type of case? 18 MR. ADERHOLD: Likewise, we have that same 19 observation. 20 THE COURT: It is so noted. 21 MR. HUBERT: Your Honor, we move the admission of the 22 hydraulic study by Albert Holler, identified as Plaintiffs' 23 Exhibit 24, documents prepared by the defendants in this case. 24 MR. ADERHOLD: No objections. 25 MS. BRAKEFIELD: Your Honor, I do object to that 0143 1 document. The witness testified it was prepared for her. There 2 was no foundation laid by the witness that prepared it. It is 3 hearsay. I would strongly object to the admission of that 4 document into evidence. 5 THE COURT: Let me see it. I will reserve ruling on 6 it. I will note the defendant's objection to Plaintiffs' 7 Exhibit 24. This is, 24 is what we are talking about. 8 MR. ALMAND: May I add an additional grounds? The 9 fact that this was prepared in November, sometimes in 1996, way 10 before the Houston Road Project was even thought of in terms of 11 the present size. It does not deal with Houston Road in any 12 way. 13 THE COURT: Well, I'm still going to reserve ruling. 14 I have some real concern about it, but I will reserve ruling on 15 it. 16 MR. HUBERT: Plaintiffs' 25, your Honor, is the Macon, 17 Bibb County Special Purpose Local Option Sales Tax Program, 18 identified as August 1 document 1994. 19 MR. ADERHOLD: If your Honor please, I think we 20 objected to that on relevancy basis. 21 THE COURT: Let me see it. 22 MS. BRAKEFIELD: Your Honor, what was the number of 23 that document? 24 THE COURT: This is 25. 25 MS. BRAKEFIELD: Thank you, sir. 0144 1 THE COURT: I'm going to admit that. 2 MR. HUBERT: Thirty-four, your Honor, is a resolution 3 for the local options sales tax dated November 1, 1994. 4 MR. ALMAND: Same objection, your Honor. 5 MS. BRAKEFIELD: Same objection. 6 MR. ALMAND: Relevance. 7 MR. HUBERT: If the option is not, its account of this 8 complaint, your Honor, that the resolution and the option 9 misdescribed the project absolutely. And we think it is 10 relevant. Ask it be admitted. 11 THE COURT: I can't see any real relevance. It deals 12 with minority participation. I don't see what that has got to 13 do with it. Deals with a disparate study relative to 14 utilization of minority business enterprise. I'm not going to 15 admit this. 16 MR. HUBERT: It is possible that is the wrong 17 resolution. At any rate, moving along in the interest of time, 18 if I can see that, please, ma'am? 19 Forty-nine, your Honor, is the Palladi letter to Mr. 20 Hayes. Move its admission. 21 THE COURT: I will admit that. 22 MR. HUBERT: Fifty-nine, your Honor, is the Georgia 23 Department of Natural Resources' Studstill letter from Richard 24 Clous. Studstill being with DOT, Clous being with the 25 Department of Natural Resources, discussing the historical 0145 1 property. 2 MS. BRAKEFIELD: Your Honor, I object to that. I have 3 no recollection of any witness has ever identified that document 4 or it was ever authenticated in any way. 5 MR. HUBERT: It was 59, judge; is that right? 6 THE COURT: Fifty-nine. That is the first I have seen 7 of it. 8 MR. HUBERT: Suzan Rivers identified the document. 9 MS. BRAKEFIELD: Not according to my notes. 10 THE COURT: It was identified, was not admitted. Is 11 it tendered? 12 MR. HUBERT: Yes, it was intended to be admitted. The 13 way I, the fashion I'm doing now, I'm trying to get all the 14 evidence in. My purpose was to identify it, hold it and admit 15 everything at the same time. 16 THE COURT: All right. I will allow it. 17 MR. HUBERT: Sixty-five, your Honor, is the 18 Tribble/Richardson report involving the drainage problems. That 19 is the second site, your Honor. 20 MS. BRAKEFIELD: No objection. 21 THE COURT: Admitted. 22 MR. HUBERT: Sixty-eight is the FONSI, your Honor; and 23 69 is the full environmental assessment. 24 THE COURT: All right. I assume there is no 25 objections to either 68 or 69. 0146 1 MR. ADERHOLD: I presume they are the ones we attached 2 to our motion to dismiss. 3 MR. HUBERT: Can't say that. It is the one I was 4 given. 5 MR. ALMAND: Your Honor, subject to that being a 6 correct copy, or no pages are missing, there was one attached to 7 the motion to dismiss, as long as that has all the pages, we 8 have no problem with it. 9 MR. HUBERT: We found page 3, your Honor, had been 10 missing from the document that was supplied us and we supplied 11 it, I think, in the document. 12 THE COURT: Well, okay. I admit a copy of the 13 environmental assessment which is dated May 20th of '98 by Mr. 14 Driehaup in August 17th of '98, again, by Mr. Dreihaup, assuming 15 all the pages are there. 16 MR. ADERHOLD: That is fine. 17 THE COURT: Also, 68, which is the FONSI. 18 MR. HUBERT: Your Honor, we move admission of 19 Plaintiffs' Exhibit 70, which is the memorandum from a group of 20 CAUTION members to Shackelford and Dreihaup dealing with the, 21 well, the myriad of issues here of the environmental 22 assessment. I believe this document was identified by Mr. 23 Fischer. 24 MS. BRAKEFIELD: Your Honor, I had objected earlier, 25 but I would renew my objection on this as to the relevance on 0147 1 this. It in no way mentioned the Houston, Bibb, EA or the 2 project, specifically, Mr. Fischer admitted on cross. 3 THE COURT: Let me see it. I'm having a hard time 4 seeing the relevance of this document. It is a letter from 5 members of CAUTION to Mr. Shakelford, Mr. Dreihaup objecting to 6 certain things. I'm going to admit it for whatever it is 7 worth. I'm not sure. 8 MR. HUBERT: This process has a public input and 9 public hearing aspect to it, your Honor. It is relevant, we 10 suggest, your Honor. Sixty-seven, 68, 67-C, 68-C and 69-C and 11 73-C are 8 by 11 representations of the charts. 12 THE COURT: All right. 13 MR. HUBERT: It is admitted just for the purpose of a 14 convenient way to make reference to it. 15 MR. ALMAND: Can I have those numbers again? Would 16 you read the numbers again. 17 THE CLERK: Sixty-seven-C, 68-C, 69-C, 73-C. 18 THE COURT: They are admitted. 19 MR. ALMAND: Your Honor, I would just like to note my 20 objection to those. 21 THE COURT: All right, objection is noted. 22 MR. HUBERT: Eighty-two, Plaintiff's 82 is the same as 23 Defendant's DM No. 1, is the traffic study analysis with the 24 handwritten clouded, in cloud figures thing that we looked at, 25 your Honor. We move admission of that document. 0148 1 THE COURT: Well, I'm not sure that it will prove 2 helpful but, then, again, I'm not sure it won't. I will admit 3 it. 4 MR. ALMAND: I would like the record to reflect, that 5 that was the exhibit that we identified as our Exhibit DM-1 and 6 he has also added his number 82 to it. I have no objections to 7 it. 8 THE COURT: All right. 9 MR. HUBERT: Your Honor, 53 is also contained here, 10 which is the document that you -- 11 THE COURT: Plaintiffs' Exhibit 53. 12 MR. HUBERT: I believe this is the -- 13 THE COURT: I reserved ruling on that. 14 MR. HUBERT: Your Honor -- 15 MR. ALMAND: Your Honor, did you rule on the November 16 13 letter in Plaintiffs' 53 yet? Is that tendered? 17 THE COURT: I have a copy of a letter which was never 18 sent. I am inclined to disallow it. I just don't see how it 19 fits into any exception to the hearsay rule. But what I'm going 20 to do is reserve ruling on it until I have some more time to 21 think about it, and then I will rule on it. You will be 22 informed. 23 MR. HUBERT: If the court please, the photographs here 24 are 74, 75, 73, 72 and 78. I believe they were admitted before, 25 but we need to offer them now, formally. 0149 1 THE COURT: I have already admitted them. 2 MR. HUBERT: Okay. Seventy-one, does that show 3 admitted as well? 4 THE COURT: It is also admitted. 5 MR. HUBERT: Okay. 6 MS. BRAKEFIELD: Your Honor, 71 was the one we 7 objected to, just for the record. 8 THE COURT: That is the one that showed the 9 interchange off the property. 10 MS. BRAKEFIELD: Yes. 11 THE COURT: I will admit it for what it is worth. 12 MR. HUBERT: Your Honor, the, in order that 13 Plaintiffs' 34 be what I believe properly considered, I believe 14 you rejected 34. And 34 has some area that looks like it is 15 marked out. I would draw the court's attention that that is not 16 a marked out area. That is simply highlighted. That was put on 17 the document that makes it appear like that. 18 This does deal with the local option tax and the right 19 to be approved by voters. And it is deceptive in some sense, 20 since the minority participation doesn't have any highlighting 21 at all, and I would like the court to at least reexamine that 22 and see if that document cannot be received with that 23 explanation. 24 THE COURT: I will admit it for what its worth. 25 MR. HUBERT: Finally, judge, I have one unique problem 0150 1 to present here. I have been offered as a courtesy copy of a 2 document, I presume it is to be offered in defendants' part of 3 the case, being, marked Defendant's Exhibit 4. This purports to 4 be an addendum to the environmental assessment of no effect. 5 Particularly as relates to John Heard Elementary School. 6 Today, and at this moment, a few moments ago, is the 7 first time I have been aware of this July 1999 document. I 8 think this document, which was planned to be offered by the 9 defendants, would be helpful for us to know that they did amend 10 this document since it was offered before. This is the first 11 time I was aware of any amendment to it. And I submit that 12 perhaps with the agreement of both parties we could let the 13 court have that, and I call on them to ask if they will let the 14 court see this document. 15 MR. THOMASON: We have no objections to him seeing 16 it. Are you going to offer it? 17 MR. HUBERT: I will offer it is a joint exhibit on my 18 own. Because its existence came to my attention moments ago. 19 MR. ALMAND: May we have just a moment, your Honor. 20 THE COURT: Yes. 21 MR. THOMASON: If your Honor please, we, when we met 22 in October, Mr. Almand identified all of the additional 16 23 documents that dealt with the evaluation of the potentially 24 historic properties out on Houston Road. So he perhaps just 25 does not remember we identified those. 0151 1 THE COURT: Well, the question -- my only question is, 2 is it, do you tender it or not tender it? 3 MR. THOMASON: If we got to the defendants' case, it 4 would be a defendants' exhibit. 5 THE COURT: Well -- 6 MR. THOMASON: I gave it to him in advance as a 7 courtesy. 8 MR. HUBERT: He did that, your Honor, and I saw it -- 9 THE COURT: You want to wait to let them tender it? 10 MR. HUBERT: I want you to have enough to argue the 11 motion, judge. There will be motions, I'm sure. I want you to 12 have this at hand to argue the motion. 13 THE COURT: All right. It is being tendered. Any 14 objections? 15 MR. ADERHOLD: We are not going to object to our own 16 material. 17 THE COURT: It is admitted. Plaintiffs' exhibit. 18 All right, is that it, now? 19 MR. HUBERT: With that, your Honor, the plaintiff 20 would rest. 21 THE COURT: All right. Plaintiff has rested. You 22 ready to proceed? 23 MR. ADERHOLD: If your Honor, please, we -- 24 THE COURT: Now, if you have got motions I want you to 25 hold them. You going to move for a motion to -- 0152 1 MR. ADERHOLD: The preliminary injunction be denied. 2 Of course, we intended to make such a motion. Just for 3 information and for housekeeping purposes, if those motions were 4 not heard by the court, I presume the federal defendants would 5 go first. We have a witness that we would put up. We 6 anticipate that witness will take approximately an hour on 7 direct and cross would, I expect be at least an hour. Given 8 that, and given the lateness of the day and the court's 9 announcement that it needs to be dismissed around five -- 10 THE COURT: Well, what my suggestion about where we go 11 from here is that, that rather than me, you make a long 12 complicated motion and me wrestle with that motion, that you 13 make your motion and I will, it has been made and then go ahead 14 with your, with the witnesses you want to present. Because I 15 just feel like that I don't want to -- time is very important. 16 I have got all next week committed. I have got all the next two 17 weeks committed. I don't want to spread this out. I want to go 18 ahead and hear whatever evidence there is to hear. And I feel 19 like that I am going to want you to put up your witnesses. 20 MR. ADERHOLD: All right, sir. With that direction, 21 we will, the government will refrain from making a motion. I 22 presume the other defendants will have any comments they have 23 and we'll procedure proceed with our first witness. 24 THE COURT: Right. What I'm saying is, you made a 25 motion. I will reserve ruling on the motion. 0153 1 MR. ADERHOLD: Okay, great. Thank you. 2 THE COURT: Mr. Thomason. 3 MR. THOMASON: Yes, sir. 4 THE COURT: I assume each of you make a motion to deny 5 the injunction. Is that what -- what I hear? 6 MR. ALMAND: Yes, your Honor. 7 THE COURT: All right, and that you will -- well, go 8 ahead and maybe give me a brief outline of the basis, and then I 9 will probably reserve ruling on the motion until I have heard 10 the defendants' side. 11 MR. THOMASON: May it please the court, on behalf of 12 the Secretary of the United States Department of Transportation, 13 we would in fact move that this court deny the motion for 14 preliminary injunction. It is, it is clear, even after several 15 days of testimony and argument, it is clear that the United 16 States Department of Transportation, a federal agency, is the 17 only proper defendant before this court. 18 The only statutory asserted violations are that of 19 NEPA, which is reviewable under the APA, Administrative 20 Procedures Act. That act clearly applies only to federal 21 agencies. And there is ample decisional authority to that 22 effect, recently decided in the Sixth Circuit, that it reaches 23 only the federal defendants. 24 So we would maintain there is no extant, cognizable, 25 justiciable issues under NEPA against the state or county or 0154 1 city. 2 It is clear to, the proper focus is the, my agency's 3 environmental approval of the construction, of the document 4 which led to the construction of Houston Road. And that is what 5 is, all the case law is clear, too. The court's inquiry is 6 limited to that. You look, you are to look at that, please, 7 sir, under the considerable or substantial deference to the 8 agency's expertise and its role; and its role is a policy 9 maker. 10 It is clear that the court, even the court may not 11 substitute its judgment for that of the Secretary. While you 12 may have questions, as any court has had if you have read any of 13 the decisions, nevertheless, unless it is arbitrary or 14 capricious, or not according to law, then the court cannot 15 substitute its judgment for that. 16 You have to look no further than Walter Kulash, the 17 plaintiffs' expert witness. Your Honor asked him directly to 18 tell you if he thought the, my agency's environmental documents, 19 final agency decision, was arbitrary, capricious and not 20 according to law; and he did not do so. He would not do so. 21 The questions you asked of him, their only expert 22 witness. However sincere and concerned the rest of them are, it 23 is a stretch to call any of them experts in the areas in which 24 they purported to testify. 25 There is no question that Mr. Kulash is an expert, and 0155 1 he would, I think it is a fair characterization of his 2 testimony, simply substitute his judgment for the methods and 3 means of highway planning and the development of individual 4 projects, and would substitute what he would think is better 5 methodology and better means and practice for that of the 6 Secretary. 7 He talked always in terms of state of the art. Then 8 we have, as you would remember from your practice in the days in 9 this court, for all of us in the industry there are daily 10 practices, best practices and state of the art. State of the 11 art is measured against an arbitrary and capricious and lawful 12 standard. It doesn't meet that. He would impose a standard on 13 the Secretary that even courts would not impose, and certainly 14 Congress has not imposed. It isn't a sliding scale that makes 15 us move with the times and move with every new innovative 16 thought that somebody might have. 17 Industry and prudent planners and engineers change 18 their methods, as lawyers do. We don't read the same law, same 19 law books. I mean, it is a growing, it is not static, and they 20 move in their engineering practices and methodology for safety, 21 for efficiency, to be prudent to prudently husband the public 22 purse. 23 But even he would not tell you that what we have done 24 is arbitrary or capricious. And for that alone, I think you 25 should deny the motion for preliminary injunction against the 0156 1 Secretary. 2 If you look at the Eleventh Circuit standards, they 3 must meet all four tests. We have had testimony as to the first 4 three. There is no likelihood of success on the merits that 5 they have shown. Their arguments go, really, to the local 6 program, and I think it is a fair characterization of their 7 purported experts that they are frustrated by the process, 8 unable to get what they consider access, and they cannot 9 persuade the city and local authorities to their point of view. 10 That does not make my agency's decision arbitrary and 11 capricious. 12 There is no irreparable harm other than, there has 13 been no showing of irreparable harm. The kinds of problems 14 with, that are preexisting are in fact preexisting. The NEPA 15 and the document clearly speak to making the build alternative 16 out there, the lanes, the five-lane project that is to be built, 17 leaves it in a status quo entity. Makes it no worse, no 18 better. That is a reasonable thing, because we, as the cases 19 talk, the federal highway is neither a land use nor a zoning 20 agency. Consequently, it is not a flood control agency. 21 The document on itself shows clearly that they have 22 looked at what was on the land, the natural environment; took 23 its measure and are building a project to the current acceptable 24 standard. And there is no harm other than a dissatisfaction 25 with the result of an orderly and proper administrative 0157 1 process. 2 And then there is, public interest would in fact favor 3 continuation of the project. The final agency action has been 4 available for more than a year. The state awarded its contract 5 prior to this litigation being initiated. 6 It seems to me that to come in here now and to urge 7 that we stop construction and reopen it, to take into 8 consideration yet other alternatives, is a meaningless, and 9 empty gesture. Even Mr. Kulash would tell you that within the 10 five lanes to two lanes no-build, there are simply other things 11 he would like to see considered under his methodology and 12 practice, but he wouldn't tell you that that is a better result 13 or that is the result that would be mandated if we reopened 14 this. 15 Now, if that is, if that is their expert testimony, I 16 don't think you can say, quite frankly, sir, that it meets the 17 burden set on them by the Eleventh Circuit that you are to 18 exercise. And the motion for preliminary injunction, that is 19 due to be denied, sir. Thank you. 20 MR. ALMAND: May it please the court, about 30 seconds 21 additional to what he said. 22 I certainly adopt the motion, but I would also say, 23 your Honor, on the question of irreparable harm, it has not been 24 established. I would say to the contrary, Mr. Kulash would not 25 testify that the road, as presently designed, was wrong or bad. 0158 1 All he said was, he didn't know and we didn't show him enough 2 alternatives. So there has been no testimony from Mr. Kulash on 3 that. He wouldn't even opine on that feature. So it is way 4 fall short of any showing of irreparable harm. 5 THE COURT: Thank you, Mr. Almand. 6 MS. BRAKEFIELD: Your Honor, the state joins the 7 motion. 8 THE COURT: All right. Well, there are some, I take 9 the motion seriously. I mean, when I said that I didn't 10 particularly want to hear a motion now, I didn't mean that I 11 don't think there are some serious issues here concerning the 12 environmental assessment and how it can be attacked, that I'm 13 going to have to give some thought to. But I do want to, I'm 14 going to reserve, obviously, I'm not going to rule on this today 15 or tomorrow. I'm going to rule on it as soon as I can get my 16 thoughts together. And it will probably be sometime in the next 17 ten days or so. I doubt if it will be before then. 18 But, if the defendants have some evidence they wish to 19 put up, I am reserving ruling on your motion, and if you have 20 witnesses you want to call, I would be glad to, you can begin 21 now or we can, if they are going to take -- how long, what are 22 we talking about? Two hours? 23 MR. ADERHOLD: Judge, that is what I was getting to. 24 I anticipate the government's witness, if we were to go first, 25 would take an hour or so on direct and probably as much on 0159 1 cross. As a matter of convenience to us, we would like to begin 2 tomorrow after you instruct the jury rather than go off today. 3 THE COURT: All right. We'll recess until tomorrow at 4 1:30 and we will resume with the intention of completing all of 5 the evidence tomorrow. 6 MR. ADERHOLD: At 1:30. 7 THE COURT: One-thirty. 8 MR. HUBERT: Can we know how many witnesses they 9 intend to -- is there one witness? 10 MR. ADERHOLD: The government has one witness. I 11 cannot tell you about the others. 12 MS. BRAKEFIELD: I expect one, your Honor, at the 13 present time, possibly two. But most likely one. Very short. 14 Fifteen, 20 minutes at the most. 15 THE COURT: All right. Well, we'll, I have got to, I 16 have got to wind this up tomorrow. We will go as late tomorrow 17 afternoon as necessary to get it done, within reason, of course. 18 MR. ALMAND: We will have three or four witnesses, 19 your Honor, I'm not sure how many, but three, most likely 20 three. 21 THE COURT: Well, so maybe we won't get through 22 tomorrow. All right, I tell you what we are going to do: We 23 will start tomorrow at 1:30 and go until it is time to stop, and 24 if we are not through hearing witnesses, we will come back as 25 soon as we can, which I hope will be one day next week. Because 0160 1 although this case is supposed to take a full week, I doubt if 2 it will. But we'll get this evidence wrapped up as soon as we 3 can. That is about all I can say. 4 MR. ADERHOLD: Thank you, your Honor. 5 THE COURT: All right. Be in recess until tomorrow at 6 1:30. 7 (End of day's proceedings) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25