I will need to step out for just a moment. have an communication from my client to be able to

Transcription

1 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS MR. WGNER: Good morning, Your onor. hank you for your patience. Just for an update: he parties have participated in discussions. I will need to step out for just a moment. have an communication from my client to be able to convey to plaintiffs' counsel. E COUR: MR. WGNER: But because it takes a little bit of time and we want to make sure it was written properly, I beg F I the court's indulgence to allow me to work with the client to get assent and finalized while the first witness of the afternoon is being heard. E COUR: MR. WGNER: hat's fine. I think counsel has agreed that we 0 should probably go through that witness and any another witness through the break, and then we'll see what happens at that time. I intend to review that break. Is that sufficient? E COUR: MR. WGNER: MR. EBBU: Sure. hank you, Your onor. Your onor, the plaintiffs call John Wood, please. E CLERK: Please come this way. and raise your right hand. JON WOOD, Stand right there VING BEEN FIRS DULY SWORN, ESIFIED S FOLLOWS: F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

2 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS E CLERK: the record. E WINESS: E COUR: E WINESS: Please be seated. Please state your full name, and spell your last name for Do you want middle name? Not necessary. John Wood. nd what was the second part? E COUR: E WINESS: W-o-o-d. 0 MR. EBBU: Compound question, Mr. Wood. F Sorry. Inside lawyer joke. Spell your last name. DIREC EXMINION BY MR. EBBU: reside. I live in ood River, Oregon. nd how long have you lived there? Since '. waterways in the state of Washington? nd have you taken a series of photographs documenting the investigation that you've done? Please tell us where you Good afternoon, Mr. Wood. nd are you a member of the Friends of the Columbia Gorge? nd have you undertaking any investigations of coal in F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

3 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS Will you tell us the first -- or the date on which you did an investigation? Strike that. Did you take an investigation along the waterways that run north from the Columbia River to Seattle -- north of Seattle -- the north of Vancouver, going towards Seattle? Yes? F Showing you what's marked as Plaintiffs' Exhibit 0 -- and that will come up on your screen here momentarily -- sir, is this a picture that you took? nd is that a picture of your hand? It is. nd do you know where that picture was taken, sir? I believe that's the Lewis River. ll right. taken? hat's coal. nd how do you know, or believe, at least, that that's coal? nd do you know the date that this picture was I believe that's / of. nd what, sir, is in your hand? It's not a rock normally found there. It's under tracks F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

4 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS crossed by coal trains, and it breaks apart very easily when you crush it, unlike the similar-looking basalt and other rocks that run along the river. picture of? hat is a railroad trestle. because the court has seen a lot of these through other witnesses, but let's see what we can do here. nd the picture of the structure above you, what is that a F I'm going to try to go through these fairly quickly So that's the first a picture in Exhibit. 0 Is this another picture of the Lewis River? I believe that is, yes. nd what is that a picture of, sir? hat's looking down into water and identifying coal about, oh, within a foot or inches from the surface of the water. coal -- what you believe to be coal? If you would with your finger, would you circle the (Witness complies.) here. ctually, it's hard to tell with the glare on this screen, but there might be others. River? nd does this picture depict coal, too? ll right. nd is this another picture taken at the Lewis F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

5 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS nd just circle a couple of examples of coal that you see. (Witness complies.) nd is this another picture of the Lewis River? Uh-huh. t the Lewis River? E COUR: E WINESS: You have to say "yes" or "no." the same place? nd is that more coal in the water at F (By Mr. ebbutt) My finger is wide. Well, I mean, you know, within arm's reach, yes. Different picture of a different piece of coal? Uh-huh -- yes. Yes? 0 nd again,, same area of Lewis River under the train trestle, a different picture of coal? nd is that in the water itself? hat is on a block of basalt, which -- I can't remember whether that's actually holding the trestle or not. picked those out of the water and put them there for a photo. where the rock is? But I Did you pick them out of the water right next to Yes, yes. MR. EBBU: Your onor, move into evidence Plaintiffs' Exhibit. F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

6 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS MS. MORGN: E COUR: Objection on relevance. Overruled. It will be admitted. (Exhibit admitted.) (By Mr. ebbutt) nd, sir, the same day you visited other areas. nd Plaintiffs' Exhibit, where was this picture taken? Is that true? You already testified to that. F Well, it's either at the confluence of the Coweeman and 0 the Cowlitz, which is kind of an estuary area, or the Kalama River. I -- I can't remember. MS. MORGN: o have -- Your onor, objection. he parties agreed to narrow the scope of this case by limiting the discovery to 0 water bodies, and neither the Kalama or the Coweeman River is in the agreement. MR. EBBU: hat was for standing purposes. We agreed -- we stipulated that we would not present of -- specific evidence about discharge into certain waterways through witnesses that had been identified. I'll pass -- E COUR: MR. EBBU: hat's true. Sustained. We'll check on the Kalama and Coweeman, whether those are part of the stipulation and we'll get back to that if anything changes. hank you. F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

7 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS (By Mr. ebbutt) Sir, did you take pictures -- besides the Kalama River, the Coweeman River, and the Lewis River, did you take pictures of coal at other rivers that same day? can't recall without seeing them. would help refresh your recollection of exactly where pictures were taken? he Cowlitz and -- oh, man, I need my notes. F I have some notes and you have them, but I don't have the Would they help with the testimony today? bsolutely. E COUR: One at a time, please. over one another. You can't speak She can't take that down. E WINESS: MR. EBBU: Your onor, may I approach? I gave you notes. ones that I gave you. I just Do you have some notes that you gave me earlier today that 0 (By Mr. ebbutt) Sir, do you have those notes before you? Plaintiffs' Exhibit, where were those pictures taken? hose were taken at the outle River. Yes, I do. MS. MORGN: Objection, Your onor. he outle is not included in the water bodies. E COUR: Is that correct, counsel? F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

8 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS MR. EBBU: E COUR: Yes, Your onor. My apologies. Sustained. (By Mr. ebbutt) Sir, did you take some pictures along the Puget Sound? Is that the same day that you took the pictures of the other places? nd Exhibit, where were those pictures taken? 0 hese were at Solo Point. of. along Puget Sound. nd you took these pictures? Yeah. nd what is depicted in FOCG 00? hat's coal, and cement or some kind of a block that I put it on. did you pick it up and put it there? can see the mark made by when I scraped it along the rock to break it up into pieces. Where did you pick the coal up from? I picked it up it from -- well, it was wet, and that is a tidal area, and it was down -- not actually in the water at F It's precise name I'm not sure But it's Solo Point Road, which ends in a little park Was that coal there when you took the picture of it, or No. I picked it up and put it there. nd, actually, you F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

9 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS the time, but it was wet, in wet sand and surrounded by seaweed. Where was the tide that day? he tide at the time was fairly low. incoming as well. where you picked up the coal? number of degrees to your right, that would have been where I I think it was nd is Picture 0 a picture of the Solo Point Beach, If you were to turn a hat is an establishing shot. F 0 picked it up. something? Can you circle for us -- is there coal in that picture? Can you circle for us what you believe to be coal? (Witness complies.) nd, sir, moving to, what do you believe that to be a picture of? I picked it up. picture. nd was that within the tidal zone? Oh, yeah, definitely. rocks that were above it. nd, is that on the same beach, a close-up of hat's my hand holding coal, found pretty much right where I don't think I moved my feet to take that here were barnacles all over the F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

10 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS 0 nd, again is that you there, sir? nd is that within the tidal zone? Uh-huh, yes. nd what do you have in your hand? Coal. nd, what is that a picture of? hat is coal I have not touched. 0 Definitely. nd, at the risk of another leading question, that is a train, isn't it? Well, among other things. Yes? hat shows the proximity to the train to -- well, let me ask you: picked up the coal depicted in the photos in this series, Exhibit? You may. I picked up the coal that we've been seeing right around in this area here, which is within one car length -- one cole car length, or whatever those are. hopper car. F nd was that within the tidal zone? ow close to the train tracks were you where you Can I draw on the screen? hose are some kind of But anyway, within -- it's right there. F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS It's

11 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS probably two-thirds or so of the length of a car from the track, and so it's six or eight feet of vertical. are depicted in that day? that area. car keys in, so I wasn't wandering down the beach or anything. nd did you pick up coal in any other places that I believe all of the coal I picked up was right around in My friend had locked her It was a windless area. F ll right., a picture, again, in the same area? 0 nd was that within the tidal zone? nd please circle what you believe to be coal. (Witness complies.) nd is another picture you took? nd what is shown in that picture? little crab. MR. EBBU: MS. MORGN: E COUR: ll right. Your onor, I'd like to move into evidence Exhibit. Objection, relevance. Overruled. It will be admitted. (Exhibit admitted.) (By Mr. ebbutt) nd what's depicted in that picture? F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

12 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS hat's a baggie of coal that I picked up, and I put it in the bag and took a picture of it. hat's at the mouth at the White Salmon River on the sandbar in the Columbia Gorge -- Columbia River. taken? of, but I'm not certain. nd where is this picture taken, sir? nd do you know approximately when these pictures were data. F it's not on the notes. Let me see if I can -- no, It is on the metric -- on the camera 0 I believe that was, but I think it was in the winter he third photo in the series, is that the same place but from a different angle? was. nd what is the river in the background there? he Columbia River. of Mount ood in the top left. bag? I got that from the sandbar there. nd does the water ever, in your experience, come over the area where you picked up the coal? Yes, and the same coal. I was just trying to show where I nd I think you can see a little bit nd where did you get the cool that you placed into the Well, yes. F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

13 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS Is it fairly regularly that the water would be up higher, or -- Salmon River, which are now back to natural, but I think at that time it still had a dam on it, and also the level of the lake behind the Bonneville Dam on the Columbia. and goes, but it's not tidal. is that taken in the same general location? So it comes nd Picture in the Exhibit series, F ll right. It has to do with the flows of the White Well, yeah. nd what does Picture depict? hat's a -- it looks like about a handful of scattered coal dust right by my toe there. Will you circle that, please? (Witness complies.) nd, sir, where is Picture taken? hat was also under the trestle of the White Salmon River mouth. 0 he road actually is kind more or less over the left shoulder of the person with the camera, which is me, and you're seeing the railroad trestle there. picked up coal, is that depicted in the picture? No. Would that be on the other side of the bridge behind ll right. nd the sandbar that you were on when you F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

14 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS there? Rivers flows that way, and around the corner there is another big sandbar, and that's where this was picked up. River right, yeah. s you float out -- the White Salmon hank you. Sir, can you see coal in the picture that is? Not at this resolution. It's -- it breaks down into small pieces that are smaller, I think, than this camera and screen will allow me to detect it. F hat day, do you remember whether or not you saw coal in this area? was along on these rocks of riprap that are up here. But I can't recall whether I saw any down where I was walking down below. side around the corner. ll right. nd I can tell you for sure that it Oh, I definitely did. I know I had collected it on the other hank you. MR. EBBU: 0 Your onor, I move into evidence Plaintiffs' Exhibit. MS. MORGN: E COUR: Objection, relevance. Overruled. It will be admitted. (Exhibit admitted.) (By Mr. ebbutt) nd, sir, you have in front of you Plaintiffs' Exhibit. It's another series of F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

15 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS photographs. Did you say when or where? Where. Yeah. the lake out at Mosier's Incline. Upon looking at an atlas, it seems to be called Locke Lake. I've never heard anyone say that, so I can -- I can tell you that my notes say that they were in Objection, Your onor. Locke Lake is not in our agreement, stipulation. F Do you know where those photographs were taken? MS. MORGN: MR. EBBU: It's the Columbia River, Your onor. E WINESS: It is the Columbia River. E COUR: (By Mr. ebbutt) 0 Overruled. Go ahead. nd Locke Lake was a manmade creation after the locks were put in? east-west rail line, which is on a -- what do they call it? causeway? causeway. the rail line and put it on a more stable footing than the rocky slopes of the riverbank, and that's what separated the water from the Columbia River. ctually, it's -- it's the water that is north of the No. Pardon me. hey put it on a causeway to straightened out But it flowed -- I didn't mean to interrupt. But your understanding is the trestle, essentially, created Locke Lake; is that right? F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

16 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS ll right. If it's even a distinct water body, considering how loose and porous the rocks are. ll right. nd what is depicted in the first picture in the series of Plaintiffs' Exhibit? hat is sand and little goose footprints on -- and coal. nd, again, just quickly circle the coal. (Witness complies.) 0 hank you. F nd is this a picture of the same area? hat is exactly what I was trying to describe, yes. Where I took these pictures is kind of over there. nd this is the railway causeway. obvious culverts going out into the Columbia River, but that's where it gets its water, and its levels follow the Columbia's levels, as you can see by the shoreline. shoreline? mark along the shoreline? water line, but with the dams going up and down, sometimes it's a quite a bit higher than that, but not often enough to nd this lake here has no ll right. Can you see a high water mark along the Can you draw with your finger where you see the high water Well, to be specific, I can draw what appears to be a high F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

17 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS have actually left a mark on the wall. ll right. hat's ighway. nd is this another picture of coal in the same general location? footprints. general area? nd what do you see above that? Yes, same place. hat's the coal with more geese -- goose F nd the next picture,, is that more coal in the same Right here and here -- whoops. your finger to make it work. You have to move 0 ctually, this is a rock that I don't remember investigating, but if I were there I'd look at that one, too. also at Locke Lake? nd what is that a picture of? Coal in the water. not trestle. west down the beach, where I took that picture of the causeway, and then I turned to look north. call the Mosier's Incline, that cliff wall there. there's ighway in the foreground, Locke Lake in the nd the next picture in the series,, was that taken nd give us the perspective on this picture. If you recall the one where it showed the trestle -- or What do you call it? he causeway. I walked hat's what they nd then F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

18 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS direct foreground, and if I looked down I'd probably be standing in pebbles or rocks at this point. nd that's paragraph, for the record., was that taken out on the beach where you were walking? can't walk anymore. zone. s you move west, it becomes more rocky until you nd this is kind of in that transition here's a lot of coal in the picture. F ow far from the train tracks were you where you found 0 this coal? along the southern border of lake, which, actually, more or less is the causeway. know, it rises up -- can you go back a couple of pictures? It's easier to just show you. question. his was not terribly far, because the -- I was walking he causeway rises up behind -- you I'm going to just ask another question. he question is -- all right. Just listen to my his is a new question. ow far away -- the farthest point that day when you were investigating coal at Locke Lake, what was the farthest distance from the train track to where you saw coal? those were more like -- I don't know, maybe between 0 and 0 feet north, and I don't know what the vertical is, maybe 0 or feet from the tracks. I would say those first two pictures on the sand, because F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

19 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS When you say "vertical," you mean from top, down? Just -- yeah. Elevation? Yeah, yeah. Within 0 to 0, in that range, yeah. nd, is this a picture of more coal? Please circle the areas where you see coal. 0 (Witness complies.) ll right. nd is that your hand? If you were to draw -- Your onor, I move into evidence. E COUR: his, too, I think. nd, again,, is that more coal? MS. MORGN: F nd about 0 feet in horizontal -- MR. EBBU: Objection, relevance. Overruled. It will be admitted. (Exhibit admitted.) (By Mr. ebbutt) Sir, you have in front of you Plaintiffs' Exhibit. end of the causeway of Drano Lake where -- so it is the western end of unnel No., which is -- there is a series of five little tunnels through fingers of rock that the trains all go through. Where were those pictures taken? his is the western end -- no, sorry. It's the eastern here's drilled-out tunnels, and I think F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

20 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS there is five of them. area? nd the next picture, is that taken in the same general area? nd circle, if you would, where you see coal, if anywhere. (Witness complies.) 0 nd, again, were these all taken, as you testified earlier, around December of? vegetation. F he next picture, is that taken in the same general his one was probably not because of the condition of the I've been out there a lot of times, and I don't remember looking at just a photograph, when it was taken. all that metadata. drive. I do have ll right. It is in the witness room on a thumb hank you. nd, is that taken in the same general area? nd, again, circle if you will -- never mind. If it's got a plant on it, it's got coal under it. ll right. nd, where was this taken? hat's the -- yeah, same thing. Let's see. F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

21 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS What's the cement there in the picture? hat -- oh. west end of the causeway by unnel. top of that concrete? back -- if you can tell where the photographer is standing, behind me was where the train is, and that's the highway. hat's the causeway by unnel. It's the Does the train go, basically, up on the track that's on his is the roadway that you're seeing, and to the Let me show you another picture. F No. Does that give 0 you some more perspective on that? over here looking at that, I think, in the previous photo. between those two bridges? a combination of water coming in from the Columbia River and also coming down from the Little White Salmon River. fish hatchery is right up there. Same with? Uh-huh, yes. I was standing probably nd what is the name of the waterway you see hat's the same place. Yeah. he hat's the exit of Drano Lake, which is, actually, fed in nd is this a picture in the same location, 0? MR. EBBU: Your onor, I move into evidence Plaintiffs' Exhibit. MS. MORGN: Objection, relevance. F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

22 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS E COUR: dmitted. Overruled. (Exhibit admitted.) (By Mr. ebbutt) Sir, have you before you Plaintiffs' Exhibit. believe. that will help you. Oh, yeah. 0 Where is that? hat is the same -- it's west end of the causeway. two series of those photographs, and my notes are a little spongy here. Where were these pictures taken? hat's the same place, the west end of the causeway, I I'm not a hundred percent sure of that. Let me show you the next photograph. Yeah. I had F We're back there now. ll right. Maybe ll right. Is this picture taken on ighway? It drains directly to the water below. ow do you know that? Because I kicked stuff down in it. a -- well, I can't say I know it from an engineering standpoint. You know, it's -- it's Let's put it that way. But you have a roadway that collects water behind the jersey barrier that drains. ave you ever gone under the bridge? Yeah. recall if it actually lands directly in the water or on the You can under and look for it, but I just don't F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

23 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS riprap below it. Different angle, yeah, probably standing back a little ways, but you can see it right below the trains. nd were you alone that day? Well, it's hard to say on that day if I was alone. think I might have been with Peter Cornelison. there a number of times, too, and so -- nd, again, the wider-zoomed shot? I But I've been F nd had you taken photos there at times when you weren't 0 with Mr. Cornelison? ave you taken pictures of coal on that same bridge when you weren't with Mr. Cornelison? nd same with, same area? ll right. angle? is Peter in the background. hat's coal, too, by the way. I think these are all more or less in a sequence. Uh-huh, yes. ll right. nd is just the same thing, different nd, actually, if you wanted to know, that We did go that day together. hank you. 0, what is that a picture of, sir? hat is a train going by when I was taking photographs, and it just kind of shows where the track is relative to the road. F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

24 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS So was this photograph taken near where those other photographs were taken? most of the photographs that I have there. hat one? Yeah, that one. speed limit sign is there. Yeah, that's it. 0 Can you see coal in this picture? Yeah. combination of about two-thirds coal and one-third, you know, road sand or ballast stuff. Photograph 0? can see it down anywhere you want there. I think that's the same No. mile marker that's in I don't know if the F Go to the next one. ll the dust on the side of the road is kind of a Can you circle for us, if you will, where you see coal in his whole area here. nd then if you part the grass, you Is there a bird there in the picture amongst the coal? bird? Can you circle the bird, please? (Witness complies.) MR. EBBU: Your onor, I move into evidence Plaintiffs' Exhibit. MS. MORGN: E COUR: Objection, relevance. Overruled. It will be admitted. F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

25 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS (Exhibit admitted.) (By Mr. ebbutt) Sir, you have in front of you now Plaintiffs' Exhibit, which is a series of photos. you take this picture? I believe I did. nd do you know about the time frame you took this picture, or is this something that the metadata would tell us? ll of my metadata is available, and it was F Did submitted in discovery. numbers, I can't look it up. hank you. But now that we have exhibit 0 What is photograph with Bates No. FOCG 000 show, sir? east end of the White Salmon Bridge, at the mouth. trestle is the reflection in the water, and I believe that there is coal right here. photos might show that more close up. Oh, and there's a little bit more. hat's okay. hat is kind of an establishing shot of the riprap at the he nd I think some of the next ll right. 0, what does that picture depict? Coal in the water under the White Salmon trestle. Can you please circle the coal, please? F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

26 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS (Witness complies.) hank you. nd, again, is this more coal in your hand? Coal in the water at the White Salmon trestle. nd, again, same thing? Yeah. hand. have a yellow and gold ring. ll right. 0 nd where are you now, sir, in 0? his is the mouth of the White Salmon on the east bank. nd this is that sandbar you were asking about before. before, I was over here. that's that big sandbar we were discussing earlier. No, wait a second. hat might not have been my It looks like someone else's hand, because I don't So hen when you go around the corner, F Did you take that picture? Very good. Different day than the pictures you took that other time? riprap support structure that holds up the trestle, and every place that there is a little pocket, there is a little coal, as much as will fit in these pockets. out, it fills up again. I'm sure, yes. Yeah. nd 0, what does that depict, sir? Well, this is the water. his is the overhanging kind of nd when you take it F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

27 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS MS. MORGN: E COUR: MR. EBBU: Objection, speculation. Overruled. Your onor, I move into evidence Plaintiffs' Exhibit. MS. MORGN: E COUR: Objection, relevance. Overruled. It will be admitted. (Exhibit admitted.) (By Mr. ebbutt) Sir, you have in front of you a series of photographs labeled Plaintiffs' Exhibit. F he first 0 one, FOCG 000. Where were these pictures taken? to the actual unnel. in the photos we just looked at? No, that was the White Salmon River. his is the Little -- Little White Salmon. drain is where you can see it falling and also the where the Little White Salmon River goes. nd were -- is that the same general area depicted hese are at the east end of Drano Lake, so this is closer Drano Lake's western boundary is the causeway where the If you go down to the east end, which is upstream of the Columbia, you've got the tunnels, the beginning of the tunnels, and this one unnel is the first of five. Very good. F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

28 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS nd what's depicted in that picture? hat's a handful of coal I pulled out of that water below, and I sat on the rock to take a picture. Lake? because otherwise I would have been out in the river, which it would have been a bit of work to get to. nd the next picture, 0? 0 I believe those are the same rocks down here, with a better shot up. Same thing, 0, same area? coal. nd that water you're referring to is the water of Drano F nd, actually, those are the same little bits of ll right. ll four of those shots show the same handful of coal. Your onor, I move into evidence Plaintiffs' Exhibit. MS. MORGN: E COUR: Objection; relevance and cumulative. Overruled. E WINESS: another statement on that one? E COUR: MR. EBBU: It will be admitted. (Exhibit admitted.) It would have had been, his water here is found -- yes. MR. EBBU: (By Mr. ebbutt) Can I make another -- do you want No. No. Sir, did you take video as well at some F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

29 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS time? nd is this -- we just talked about Milepost, which I think was near the Little White Salmon, correct? I'm glad I got that right. Did you take this video? nd what does the video show? 0 Well, it's a coal train approaching from the east on a fairly calm day. MR. EBBU: MS. MORGN: E COUR: F Objection, Your onor, to the sound. Overruled. I'll play it. earsay. (By Mr. ebbutt) (Video is played.) If something is of particular import to you in this video, just let me know. we'll stop it and talk about it. E COUR: Just say stop, and Okay? Don't speak unless you're asking a question. MS. MORGN: Your onor, the speaking is in the video. E WINESS: E COUR: hat's not me. Oh, was it in the video? F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

30 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS E WINESS: E COUR: MR. EBBU: MS. MORGN: E COUR: admitted. Go ahead. I'll go ahead and play. Objection to the sound of the witness he objection is overruled. It will be Go ahead. (Exhibit admitted.) testifying in the video. (By Mr. ebbutt) Sir, you have your voice in the video; F 0 is that correct? nd you're describing what? Well, I was sitting in the car, waiting for a coal train, with my video, and then one came. hearing it hitting the car and thought I better get out and see how much I felt and how much I could see, you know, from not being in the car. know, it was just like stuff hitting you. nd I realized I was 0 nd could you feel it? nd describe that experience. It was a bit like hail or bits -- particles hitting, you MR. EBBU: hank you, sir. I have no further questions. I'd like to move into evidence, if I haven't already. F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

31 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS MS. MORGN: E COUR: Objection; hearsay to sound. I've already ruled on that, counsel. It is admitted. MR. EBBU: Your onor, at the risk of having your overruling just a presence-sense impression, I think it is above the hearsay -E COUR: It is not hearsay. he witness is on the MR. EBBU: hank you. stand and is subject to cross-examination. F CSS-EXMINION 0 BY MS. MORGN: Good afternoon, Mr. Wood. Good afternoon. Mr. Wood, you testified regarding photos and video of material you believe to be coal, correct? nd on most of these occasions, the material that you believed to be coal in the photograph, you had gone out looking for it; is that right? the identification of coal; is that correct? I don't know what "specialized knowledge" is. ave you ever studied geology? No. nd, Mr. Wood, you have no specialized knowledge regarding F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

32 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS nd you've never analyzed the chemical components of coal, have you? I'm aware of the chemical components of coal. But you've never analyzed them yourself? What is analyzed? ave you conducted any studies on the analysis of coal? What is studies? just answer the question. his is going to go a lot faster if you F E COUR: Well, nothing like going to school and being told that it's coal. laboratory analysis of any of the material that you believe to be coal in these photographs; is that right? From these, I can -- that's correct, yes. nd you also testified about the high water line in some of the photographs; is that right? high water mark; is that right? is in a school, no. Engineers in determining the ordinary high water mark? nd, Mr. Wood, you're not aware of any (By Ms. Morgan) 0 hat's correct. nd you have no specialized expertise in delineation of a From the standpoint of being told what the high water mark nd you've never been trained by the rmy Corps of No. F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

33 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS In the photographs that you testified about today, Mr. Wood, you'd never seen that material in those photographs get to be to the location of where you found it; is that right? No, that's not true. You testified about photographs in the White Salmon River -- Correct. -- is that correct? F nd in those photographs, had you seen the material get 0 to be to where it was at that time? Not in the White Salmon photos. hank you. You also testified about an area of the Columbia River, I believe you called it Locke Lake, and you hadn't seen that material get to be where it was in those photographs; is that right? the Lewis River; is that right? Correct. nd if you didn't see the material in the photographs get to be to where it was in those photos; is that right? Correct. nd you testified about a point in Puget Sound, Solo I did not see the material arrive there, no. nd you also testified about photographs that you took at F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

34 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS Point; is that right? nd you didn't get to see that material get to where it was in those photographs? No. E COUR: because I don't? E COUR: Yes, Your onor. Where is it? MR. EBBU: 0 It is just a little northeast of Olympia, maybe 0 miles. E COUR: (By Ms. Morgan) MR. EBBU: F Counsel, do you know where Solo Point is, hat's fine. nd, Mr. Woods, you testified about photographs you had taken at Drano Lake? Correct. nd in those photographs that you took, you hadn't seen that material get to be where it was; is that right? actually coming off of the train car? Not when you were there that day, the -- he material that was on the car was arriving during the Is that the video camera photo? No. Let's start with the photos. Yeah, that's correct. Now, in the video, Mr. Wood, could you see the material F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

35 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS video, and then being further moved by wind, and there was a white-painted surface. off the top of the train car? Now, in the video, could you see the actual material come E COUR: Counsel, I'm tempted to ask: Do you think it was sprinkled by the coal fairy? Go ahead. (By Ms. Morgan) vehicle? Mr. Wood, in that video, was that your F nd when was the last time you had washed that vehicle before that day? mm, I'm not sure. Mr. Wood, did you count the number of cars on the train as it went by? No. In that video, it doesn't show material that you believe to be coal entering the waterway, does it? around ; is that right? So that's nearly years? Uh-huh. 0 No, it doesn't. Now, Mr. Wood, you said you lived in ood River since E COUR: You have to say "yes." F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

36 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS E WINESS: (By Ms. Morgan) Sorry. I missed that one. nd in that time, you've seen typically about two BNSF coal trains a day go through the Gorge; is that right? Perhaps. So is it fair to say you've seen thousands of coal trains in your time in ood River? them, and I can see trains moving along the Washington shore F Well, I live across from the tracks, about two miles from 0 from Oregon frequently, and lots of them are coal trains. photos of these trains; is that right? metadata. coal in the state of Washington; is that right? water and on the grass on the sides of the tracks. earlier in this case; isn't that right? Yes, uh-huh. nd during that deposition, you were asked that same question; is that right? Uh-huh. nd at that time -- nd you testified that you go out trying to take video or I have gone out, and you can see the dates on the nd, Mr. Wood, you'd like to see BNSF stop transported I think I'd like to see them stop sprinkling it in the nd, Mr. Wood, during your -- you had a deposition taken F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

37 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS Sorry. nd at that time, you had testified that you wished to see BNSF stop transporting coal through the state of Washington; is that right? Now, Mr. Wood, this entire time that you've lived in the Gorge and attempted to take video and photos of trains, you've not taken any videos or photos that show material that you believe to be coal coming off a train and entering a F 0 water body; is that right? of the coal coming off the train was -- the train is, what, 00-something cars long? within about three car lengths of the water to my back, so this train is going by me, it's hitting me with coal, it's hitting my car with coal, and then right down- -- I hate to say "downstream," but it is downstream on the Columbia and also where the trains go, it goes over a trestle, which goes over a river, and then there's coal all down the slope and into the water. hat's not entirely correct, because the video that I took I'm he train is moving past me. So I'm taking a picture of coal coming off the train, it's hitting me, and then within a few train cars lengths, it goes over open water, and the idea that it couldn't also be going off there is -- is just ridiculous. But, Mr. Wood, you already testified that in that video F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

38 F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS you took, you couldn't see the material you believed to be coal going into the waterway -- to turn around and walk a little distance and look over into the water. that. coal being deposited in a way that can reasonably assumed also into the water at the same time. I didn't have the presence of mind when I took the video But if I had, I'm sure it would have captured So I think it is fair to say that that video shows F So it's accurate that you do not have a photo or a video 0 of material you believe to be coal going into a waterway? E COUR: MR. EBBU: E COUR: E COUR: Sorry? You may step down. MILES JONSON, E CLERK: VING BEEN FIRS DULY SWORN, ESIFIED S FOLLOWS: Please state your full name, and spell your last name for the record. E WINESS: MS. MSUMOO: ny redirect? You may step down. No further questions. Nothing, Your onor. ll right. E WINESS: hank you. MS. MORGN: Oh, that's accurate, yes. Miles Johnson, J-o-h-n-s-o-n. Your onor, if I may, one housekeeping matter. Mr. Johnson has bought a demonstrative exhibit with him F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

39 Miles Johnson - Direct today, and I wanted to provide opposing counsel the opportunity to see it before he begins testifying. E COUR: Sure. MS. MSUMOO: You can approach, if you wish. hank you. DIREC EXMINION BY MS. MSUMOO: Good afternoon, Mr. Johnson. Good afternoon. Could you please tell the court where you live? 0 I live at ood River, Oregon. nd how long have you lived there, sir? Roughly four years. Sir, what is your educational background? fter high school, I went to Whitman College in Walla Walla, Washington. environment studies. School, and I got my J.D. in. F I got a bachelor of arts in biology and E COUR: hen I went to Lewis and Clark Law Move closer to the microphone and keep your voice up. of Oregon? Yes, I am. nd any other state bars? I'm a member of the Washington Bar as well. nd are you a member of any federal district court bar (By Ms. Matsumoto) Sir, are you a member of the state bar F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

40 0 Miles Johnson - Direct associations? and the Eastern and Western Districts of Washington. nd are you employed at ood River? nd when did you begin working for Columbia Riverkeeper? In the fall of. What is your role with Columbia Riverkeeper? My job title is Clean Water ttorney. I'm admitted to practice in the District of Oregon F I work for Columbia Riverkeeper. So I litigate Clean 0 Water ct enforcement cases, and I also do legal and factual research. Riverkeeper's other campaigns. re you counsel in this case, sir? No, I'm not. re you a member of any of the other plaintiff organizations? No. Sir, have you seen BNSF coal trains traveling through the Columbia River Gorge? River Gorge? nd where have you observed coal? I've observed coal at orsethief Lake, at Spearfish Lake, nd some litigation work in support of Yes, I have. ave you observed coal in the waterways in the Columbia F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

41 Miles Johnson - Direct on the beach just upstream from the mouth of Drano Lake, and on the beach at the mouth of Rock Creek near Stevenson, Washington. you know that it was coal? your fist; chunks of jet black rock; lighter than the usual basalt that you see in the Columbia River Gorge, and when you pick it up, it just, you know, crumbles apart in your hand, nd when you observed this material in the water, how did F It was small to medium sized, sometimes even as big as and you can even run it together, and it just kind of disintegrates into a fine powder. the proximity to the railroad where the coal trains are. E COUR: E WINESS: E COUR: So that, in conjunction to ow big is ood River? I think it's about,000 people. 0 You'd think they're all here. (By Ms. Matsumoto) Sir, I'm showing you what's been marked as Exhibit, and this is page of the ECF. Do you recognize this image? Yes, I do. we call the mouth of Rock Creek, where Rock Creek enters the Columbia. locations where you observed coal, correct? nd could you just describe what is depicted? Yeah. his is an aerial or satellite photograph of what nd you earlier just testified this is one of the F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

42 Miles Johnson - Direct Correct. Can you, using the stylus, draw on the screen there where it was that you observed coal? Sure. nd can you also circle where the rail bridge is? (Witness complies.) nd in the area you circled where you said you saw coal, how did you access that area? (Witness complies.) F So there is this small public park right about here, or maybe farther upstream in the Columbia. In this picture the water level is much higher than -- or much more of the shore is covered than when we were there, so we went to that park and then walked kind of along the waterline down to Rock Creek. anyone? Riverkeeper's executive director and my boss; also John Wood and Dave LaLiberte. John Wood is a Riverkeeper member and volunteer. nd who is Dave LaLiberte? is is a scientific consultant. nd, sir, do you remember the date that you and Mr. Vandeneuvel, Mr. Wood, and Mr. LaLiberte visited the 0 I was accompanied by Brett Vandeneuvel, who is Were you accompanied by nd when you say "we," who is we? Who is John Wood? F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

43 Miles Johnson - Direct area depicted in this map, the Rock Creek area? was certainly in the winter. I couldn't tell you the exact day. different from what you experienced the day that you visited? and there were sandbars and kind of a sand spit at the mouth of the Rock Creek exposed that we were able to walk around I'm fairly certain it was January of. It was a -- it It was a nasty, rainy day, but nd you mentioned that the water that was shown here is When we were there, the water level was much lower, F Yeah. 0 on. occasionally may be covered, as depicted in this map here? water in this map. Rock Creek? of the dams, the water level in the Bonneville pool raises and lowers, you know, fairly regularly. Rock Creek area, did you take any photographs or videos? mostly because it seemed like the other three people were taking a lot of videos and pictures. Certainly the areas where we were are covered by Yeah. So were you able to walk on sandbars and surfaces that Do you know how often the water fluctuates in the area of Not precisely, although I know that, through the operation On the day that you and you three companions visited the You know, I don't think I personally did, and that was ave you seen any of the pictures or videos that those F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

44 Miles Johnson - Direct other three people took? MS. MSUMOO: Your onor, at this time I'd like to move to admit Exhibit, just page that's shown here. MR. SULLIVN: E COUR: No objection. dmitted. (Exhibit. admitted.) (By Ms. Matsumoto) Mr. Johnson, you said you had seen some other photographs and videos that your companions took F on the day of your visit to Rock Creek. MS. MSUMOO: Your onor, I'd like to play one of 0 those in full right now. have a few questions for Mr. Johnson, if that's acceptable to the court. E COUR: MR. SULLIVN: I've viewed these, and if you play the sound, I'm going to object to hearsay. by an individual not on the witness list. nd then I Go ahead. It's under a minute. E COUR: here is a voiceover You can't play the sound. MS. MSUMOO: We will mute the video. Mr. Johnson is depicted in one of the videos, and we'll be able to discuss the contents. E COUR: MS. MSUMOO: nd just as a housekeeping matter, this is Plaintiffs' Exhibit. F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

45 Miles Johnson - Direct (By Ms. Matsumoto) Mr. Johnson, do you recognize what is depicted in this video? Yes, I do. Can you describe, briefly, what was depicted? his is a video that was taken, I believe by Brett Vandeneuvel, of me standing and holding coal near the mouth of Rock Creek. Rock Creek, and then at the end it pans over and you can see Dave LaLiberte and John Wood standing right next to -- F You kind of get a couple of other shots of 0 standing fairly close to where we were collecting coal. seconds, there is an individual depicted. Is that what's up on the -- Yes, that's me. What is in your hand? It's a piece of coal. ow did you know it was a piece of coal? a piece of basalt would be, a piece of rock, and at the beginning there, you can see it kind of break apart as I break it. yards from the railroad causeway there. four of you were at Rock Creek? Is that you? nd I'll just note for the record that at frame three It is very black, kind of light in your hand, lighter than Yeah. nd as you can see, we're also maybe nd how much coal did you observe during the time that the F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

46 Miles Johnson - Direct I don't -- I don't quite know how to answer that question, other than to kind of describe what we saw there, and that was, you know, just kind of pieces of that size, some as big as your fist and some smaller than that, kind of scattered over this -- the sandbar area there and in the shallow water surrounding the sandbar. It wasn't like it was completely coating the ground, but you didn't have to walk around very far in any direction before you could just look down and see these chunks of coal. F I'm just forwarding through pages. Mr. Johnson, it may be difficult, but could you just 0 draw on the screen which waterways are depicted here? looking downstream. in general, is kind of the channel where Rock Creek comes out under that railroad bridge and joins the Columbia River. locations that are visible in this frame? sandbar area, both in the foreground and on the other side of the sandbar towards where Rock Creek was. around over there. obviously, in this video. So basically out here is the Columbia River, nd this -- this kind of waterway here, Sure. nd when you were observing coal, did you observe it from Yeah. I mean, there was coal kind of all over this Yeah, kind of all So the sandbar was accessible the day that you visited, ave you visited the Rock Creek area or seen the Rock F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

47 Miles Johnson - Direct Creek area when the sandbar is not visible? it's not visible. standing from the road, and I have not, you know, gone back to that specific spot. You know, I'm not sure I've specifically been there when It is very hard to see from where we were You know, I will say that that area is probably frequently covered by water, like we saw in that picture. this frame? F Mr. Johnson, could you please circle the rail bridge in nd it looks like you are still depicted in the frame in the lower corner there. 0 Could you again remind us about how far from the bridge was from where you all were observing coal in Rock Creek? would estimate that was oh, I don't know, 0 or 0 yards. railroad tracks? four people the day that you visited Rock Creek. From where I am in that picture to the bridge, I guess I nd from where you were standing, about how far were the Oh, maybe, I don't know, yards to the closest point. nd earlier, Mr. Johnson, you said you were in a group of Could you please identify the two individuals that are depicted in this frame? John Wood. Yeah. On the left is Dave LaLiberte, and on the right is F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS

48 Miles Johnson - Direct Could you please just draw a "D" under Mr. LaLiberte and a "J" under Mr. Wood? (Witness complies.) hank you. E COUR: What's happened with the frequency of coal trains as a result of the economic problems in the Wyoming coal fields? MR. WGNER: most definitely. Your onor, there has been a decline, he average may have been, at the beginning F 0 of the statutory period, closer to the three or four per day that has been discussed. now, I can't give you the precise date of when that would be, would be much closer to two. E COUR: he average closer to where we are (By Ms. Matsumoto) Mr. Johnson, what were Mr. Wood and Mr. LaLiberte doing while you were at Rock Creek? were. photographing coal. was also collecting samples of that coal to be analyzed. Did you see Mr. LaLiberte collecting samples? Yes, I did. Do you know about how many samples he collected at Rock Creek? hey were both walking around in the same area where we I think both of them were looking for, finding, and My understanding is that Dave LaLiberte I don't know that specifically. F - PER LOCL RULES, DO NO UOE FM OR C O FILINGS