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National Park Service and Dunes Acres group reach temporary accord in Cowles Bog tree cutting dispute

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By KEVIN NEVERS

The Coalition to Protect Cowles Bog has agreed to withdraw its motion for a preliminary injunction against what it calls the “clear cutting” of some 3,400 trees in the Cowles Bog site at Indiana Dunes National Lakeshore, after the National Park Service (NPS) agree to remove no trees from the easternmost portion of the project area.

The Coalition’s amended complaint, filed in the hope of scuttling the whole project, remains on the table, however.

On Jan. 16, the Coalition and NPS jointly filed a stipulation, under which the Coalition will withdraw—without prejudice—its petition for a preliminary injunction, in exchange for which NPS agreed to two conditions:

•NPS will forbear from cutting any trees along the easternmost strip of the project area, immediately west of Mineral Springs Road, before March 1, without providing the Coalition and the court 14 days’ notice. In other words, NPS will leave, for the moment, a screen of trees along the west side of the road leading in to Dune Acres.

•NPS will also maintain the number of staff assigned on a daily basis to this project “at a level no higher than the highest number of employees assigned per day in December 2012”: that is to say, 12.

Work on what the NPS has termed the “restoration” of the 15 acres in Cowles Bog began soon after NPS issued a “Finding of No Significant Impact” on Nov. 13, 2012. NPS has said that it intends to restore the bog to the condition in which it appear to groundbreaking ecologist Henry Cowles when he studied the site early in the 20th century. That work includes the removal of tree cover and understory vegetation, to which numerous Dune Acres residents objected during the public-comment period.

On Dec. 11, the Coalition—including listed plaintiffs Terry Grimm and Robert and Cheryl Evans—filed suit in the U.S District Court for the Northern District of Indiana, seeking a temporary restraining order and preliminary injunction.

On Dec. 12, U.S. District Judge Joe Van Bokkelen denied the motion on procedural grounds.

The Coalition amended the complaint in a filing of Dec. 28. That filing seeks a preliminary injunction, on the one hand; and on the other, a declaration that NPS’ “actions, findings, reports, and other decisions” with respect to the Cowles Bog restoration are “in excess of statutory authority, arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with the law.”

Among other things, the Coalition alleges that NPS, in violation of the National Environmental Policy Act (NEAP), suppressed research, “thus depriving the public and decision makers of critical information”; utilized “inaccurate and misleading information within their (Environmental Assessment) which makes that document and related findings and decisions invalid”; and suppressed public comments which “conflicted” with their plan.

On Jan. 3, NPS filed its response to the Coalition’s complaint. In that filing NPS denies the Coalition’s specific arguments and maintains the following:

•That NPS did, in fact, review an “appropriate number of alternatives.” In any case, “courts have held that agencies do not necessarily violate NEPA even when they evaluate only the proposed alternative and the no-action alternative.”

•That the Environmental Assessment did not “promote” inaccurate data. “NPS considered relevant evidence, came to a reasoned conclusion based on its expertise, and explained its conclusion. That conclusion, therefore, is entitled to deference.”

•That NPS suppressed no research. “Nothing in NEPA requires either that an (environmental assessment) include all underlying studies or that any agency circulate all studies for public comment and review.”

•That NPS suppressed no public comment. “(O)pposition to a project does not make a project ‘highly controversial’ for NEPA purposes or otherwise indicate that NPS violated NEPA.”

•That the Coalition has demonstrated no “irreparable” harm. “NPS specifically examined concerns of Dune Acres residents about the possibility of sound transmission”—following the removal of the trees—and after conducting a noise study found “that there will be no increase in sound transmission due to the project.”

•That even a short-term delay caused by a temporary injunction would force NPS to release from employment 15 temporary and subject-to-furlough workers. “Thus, an injunction would have an immediate adverse effect on these employees and their families.”

 

Posted 1/25/2013