A group of Dunes Acres residents calling themselves the Coalition to Protect the Cowles Bog Area has filed suit in federal court against the National Park Service (NPS), seeking to stop what it calls the “clear cutting” of some 3,400 trees in this area of Indiana Dunes National Lakeshore.

The suit was filed by the Coalition on Tuesday in the Hammond Division of the U.S. District Court for the Northern District of Indiana. Joining as plaintiffs are Terry Grimm and Robert and Cheryl Evans. Named in the suit are U.S. Secretary of the Interior Kenneth Salazar, National Lakeshore Superintendent Constantine Dillon, and NPS botanist Dan Mason.

Work on what NPS has termed the “restoration” of the 25-acres in Cowles Bog began soon after NPS issued a “Finding of No Significant Impact” (FONSI) on Nov. 13, although NPS did not actually announce that finding until Dec. 3. NPS has said it intends that work to restore the bog to the condition in which it appeared to groundbreaking ecologist Henry Cowles when he studied it 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.

The Coalition’s suit is specifically seeking a temporary restraining order and preliminary injunction on four grounds.

The Coalition’s first argument: that in submitting its environmental assessment under the National Environmental Policy Act (NEPA), it presented an inadequate range of alternatives: (1) no action; (2) the clearing of 97 percent of the trees in the 25-acre parcel; and (3) the clearing of 99 percent of the trees.

“There is no practical difference between 99 percent and 97 percent tree removal,” the suit states. “These alternatives are essentially the same, which violates Director’s Order No. 12 that specifies that reasonable alternatives be presented.”

The Coalition cites three “misrepresentations” in the NPS environmental assessment.

First: that assessment conveyed the “impression that the 25 acres in the Cowles Bog Unit Area (were) unsold swamp land that was granted to the State of Indiana by the U.S. government in 1850.” In fact, the suit states, the parcels specifically involved in the “planned clear cutting” were purchased by private persons, including Joseph Bailly, in 1837.

The second “misrepresentation”: the whole point of the project is to “restore” the area to “conditions like those experienced by Henry Cowles and his students, with a similar viewshed and a natural landscape under natural processes,” according to the environmental assessment. But, the suit states, Cowles did not bring his students to the area until 1913 and well before that year—between 1890 and 1906—one Peter Peterson had built a house on the project site and was farming it. “Thus, using the well-known name of Henry Cowles to link the project area to a ‘natural landscape under natural process’ when in fact that property was a farm with a farm house built on it is misleading.”

The third “misrepresentation”: although the environmental assessment references an 1830 survey 13 times, the assessment does not—“surprisingly,” in the word of suit—use the actual survey and notes. “Instead, an interpretation of the survey and surveyor’s notes were used,” the suit states. “This interpretation appears to omit the detail contained in the original surveyor’s notes and introduces a greater possibility of error.”

The Coalition also alleges that NPS suppressed research in its environmental assessment. That assessment—dated March 2012—specifically describes the area to be clear-cut as “a mosaic of wet and mesic prairie with the presence of a few scattered trees.”

However, on Sept. 26, 2012—six months later—NPS “changed its official position,” in its Concern Statements and Responses, which document notes the following: “We can now visualize that the transition between the mesic oak dominated communities to the south and the marsh prairie to the north, had a zone of pin and swamp white oak and other species.”

According to the suit, the “source of the newly released information relating to the timbered corner section and pin oaks” is a report partially prepared by NPS botanist Dan Mason—named in the suit—two years ago, on Oct. 22, 2010.

“The information in this October 2010 report did not appear in the March 2012 environmental assessment, nor would it support the environmental assessment’s preferred alternative,” the suit states. “This information was apparently suppressed until now.”

Finally, the Coalition alleges that NPS suppressed responses from the public which conflicted with the preferred alternative.

Although, for instance, the FONSI states that a March 31, 2012, meeting in Dune Acres had around 35 people in attendance, the “actual number was at least two and perhaps three times that number,” according to the suit.

“This miscount by itself would not be so distortive if (NPS) has not also misstated the number of total responses that were received during the comment period,” the suit states.

Thus, while NPS in Concern Statements and Responses cites a total of 74 responses—35 of which were in support, 39 expressive of concern—NPS did not include in the total a petition signed by 98 persons.

In general, the suit alleges on the part of NPS foot-dragging, after plaintiff Cheryl Evans filed a Freedom of Information Act (FOIA) request for key documents. Although FOIA requires federal agencies to provide requested records within 20 days of a request, the suit states, Evans did not receive requested documents until 61 working days after her FOIA filing and not until after she had filed an FOIA suit in federal court.

The suit also alleges one other incident of NPS foot-dragging. “Although (NPS was) well aware that their project was highly controversial with the local community, (NPS) did not issue a news release about receiving approval to proceed with the project until 20 days after receiving the FONSI, which was only five days before (NPS) began clear-cutting the trees,” the suit states.

Posted 12/12/2012