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Judge rejects Dune Acres residents' lawsuit against NPS over tree cutting

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By KEVIN NEVERS

A federal judge has quashed the attempt of a Dune Acres group to halt the cutting of some 3,400 trees in the Cowles Bog area, part of the National Park Service’s plan to restore Cowles Bog to a “wet-mesic prairie,” the condition in which it appeared to groundbreaking ecologist Henry Cowles when he studied it early in the 20th century.

In his July 2 decision, U.S. District Court Chief Judge Philip Simon ruled first that--contrary to the assertion of the Coalition to Protect the Cowles Bog Area--NPS does have the authority to implement its plan to “restore” Cowles Bog’s 25 acres to wet-mesic prairie; and second that NPS did comply with the National Environmental Policy Act and the Administrative Procedures Act, in that its initial Environmental Assessment (EA) of the project was neither biased nor misleading.

Lack of Authority?

Simon begins his ruling with a close reading of the enabling legislation which originally established Indiana Dunes National Lakeshore. Two clauses in particular are key, Simon states: one which gives the Secretary of the Interior “such statutory authorities” necessary “for the conservation and management of natural resources” in the park; and one which states that, in order for the National Lakeshore to be “permanently preserved in its present state, no development or plan for the convenience of visitors shall be undertaken therein which would be incompatible with the preservation of the unique flora and fauna or the physiographic conditions now prevailing.”

As Simon notes, the “most vexing problem of statutory interpretation” is the reconciliation of those two clauses, the one which gives the Secretary of the Interior a “hugely expansive grant of authority” and the other which “constrains” that authority.

In the end, Simon accepts NPS’s reading, namely, that the Secretary’s authority is constrained specifically only when a development or plan “for the convenience of visitors” is on the table. And Simon rejects the Coalition’s reading, namely, that “the phrase ‘permanently preserved in its present state’ essentially trumps all other language.”

To the Coalition’s reading, in fact, Simon applies a reductio ad absurdum: that to accept the Coalition’s reading “means that the Secretary would have to manage those resources in a very specific way--to preserve the entire Lakeshore in its 1966 condition as if it were permanently frozen in time.

“If that were the case, wouldn’t the Secretary have to make individualized decisions as to every flower, shrub, tree, etc. to ensure that the Lakeshore looks exactly as it did in 1966?” Simon poses the problem. “That is an absurdity of course. . . . Interpreting the statute to require that the 1966 conditions be preserved on each of the more than 6,000 acquired parcels (since 1967) would mean that the park must ascertain the 1966 condition of every tract, regardless of when it was added to the park or acquired by NPS, and manage each piece according to that condition, instead of managing the park as a whole.”

NPS Compliance?

With the respect to the Coalition’s second assertion--that NPS was arbitrary and capricious and failed to comply with the National Environmental Policy Act--Simon first observes that his jurisdiction is limited to a very narrow window: not whether NPS’ plan is “unwise” but whether it is “uninformed.”

“So, for example, in the context of this case, reasonable people might think that cutting down 3,400 trees to establish a wet-mesic prairie doesn’t sound like a terrific idea (The neighbors certainly don’t think it is),” Simon remarks. But then he cites case law.

“(I)n the context of NEPA, a court is prohibited from ‘substitut(ing) its judgment for that of the agency as to the environmental consequences of its actions.’ In fact, ‘(t)he only role’ for a court in applying the arbitrary and capricious standard in the NEPA context ‘is to ensure that the agency has taken a “hard look” at environmental consequences.’”

The Coalition’s specific allegations--that restoration of Cowles Bog was a predetermined outcome; that NPS failed to consider a range of reasonable alternatives to the plan; and that the EA was rife with inaccuracies, deficiencies, and misrepresentations--Simon rejects in turn.

Thus, the fact that, in 2009, a Cowles Bog proposal for review was accepted for funding does not mean that NPS had committed itself to the project, Simon states. “(S)imply applying for a general pool of federal funds that could be withdrawn at any moment hardly constitutes an ‘irreversible and irretrievable commitment of resources.’”

Thus, to the Coalition’s argument that the range of alternatives was not sufficiently wide--no action, cutting down 99 percent of the trees, or cutting down 97 percent--Simon replies that NPS need only consider those alternatives which would actually implement the plan.

“Here, the entire stated purpose of the project is to restore the area to a wet-mesic prairie, and because a significant tree canopy prevents such a restoration, all of the reasonable alternatives have to involve the cutting of the vast majority of the trees.”

Thus, the Coalition’s view of the EA as inaccurate and deficient Simon finds to have no merit. References in the EA to the Indiana Swamp Act of 1850 and to Henry Cowles, for instance, are hardly even “flyspecks,” Simon states, citing case law. “Calling these flyspecks is an insult to the comparative enormity of flyspecks.”

Conclusion

Simon concludes his ruling this way. “Let me reiterate that NEPA only prohibits uninformed, not unwise, agency action. Whatever (the Coalition’s) view on the wisdom of the Park Service’s decision, the court cannot remotely conclude that the EA is ‘uninformed’ as it relates to the restoration of Cowles Bog. As such, the Park Service’s preparation of the EA and its decision to issue a (Finding of No Significant Impact) were neither ‘arbitrary’ nor ‘capricious.’”

 

Posted 7/10/2013