Intense, incessant citizen pressure our only salvation

For the record– serial failures by myriad public agencies and private entities to protect Crown Hill’s woods confirms Richard Ottinger’s Earth Day profundity about the importance of citizen pressure–

At the behest of two congressional representatives (Rep Carson and Sen Donnelly), in May, 2017 the VA and Crown Hill announced an agreement to correct their unfortunate mistake by relocating the VA’s planned cemetery to an adjacent open field, thus sparing the woods and finally validating the protests and intense work of many hundreds of citizens over 8 months to persuade the various deciders about the value of the endangered woodland.  This agreement followed a series of failures by public agencies and several private entities over those months.  To record and memorialize, here is a list of the entities– most of whom/which failed to properly serve and protect both the public interest and the interest of the plants and animals at the site.  Limited space dictates that it’s primarily just a listing without detail explaining the various failures.

  1. Crown Hill Board of Directors and executive management, Gibraltar Remembrance Services, LLC
  2. The Veterans Administration/National Cemetery Administration
  3. The authors of the September, 2015 Final Environmental Assessment— ASC Group/Indianapolis, Enfuse Environmental of Pine beach, New Jersey, and Concourse Federal Group (all are VA contractors)
  4. Indiana Department of Natural Resources/Division of Forestry
  5. Indiana Department of Environmental Management/Office of Water Quality
  6. The National Environmental Policy Act, the federal Administrative Procedures Act, and local land use/environmental plans
  7. Federal judge Jane Magnus-Stinson, ruling to deny protesters’ sought-after injunction
  8. Indianapolis Mayor Joe Hogsett (initially balked, causing much citizen angst, but finally stepped up)
  9. Rep. Andre Carson (initially balked, causing much angst, but finally stepped up)
  10. City Councilor Joseph Simpson (defiantly oppositional to protesters throughout)
  11. Butler-Tarkington Neighborhood Association leadership (board president Clark Kirkman— the only Board member voting to oppose saving the woods
  12. Print organizations– The Indianapolis Star and Indy Midtown magazine (a private commercial publication) – minimal coverage (by the Star) and biased/ distorted yellow journalism promoting the pro-forest destruction position of the VA, Crown Hill, and Midtown, Inc. (by Indy Midtown magazine)

Rep. Richard Ottinger’s statement (From his speech at the first Earth Day in Washington, D.C) certainly rings true today, considering the thousands of hours of citizen advocacy which had to be applied to save Crown Hill’s north woods:

“Intense, incessant citizen pressure is the only thing that will save us.  We must assume that we are surrounded by rapacious developers, callous industrialists, inept public agencies, and insensitive politicians, and that our only salvation is in our two hands.”  Richard L. Ottinger, U.S. Representative, speech, Aril 22, 1970

Equally resonant is P.J. O’Rourke’s question:  “Our government: what the %^&* do they do all day, and why does it cost so goddamned much money”?  (Parliament of Whores)


Finally!– a check on agency misfeasance

Finally!— a check by a branch of our government on agency misfeasance

On March 10th, two of Indiana’s Congressional representatives wrote a letter to the VA which was highly critical of the VA’s failure to sufficiently consult the community as it willfully pushes its unnecessarily destructive cemetery plan toward construction.

Congressman Carson and Senator Donnelly lambasted the agency, expressing their “profound disappointment” for its poor outreach which has cause great tumult in the community.

It’s refreshing to see legislators who are willing to apply critical oversight on a bureaucracy run amok.  Too often, lawmakers merely defer to the executive branch, and the administrative agencies which it controls, even when the excesses or failures are egregious or even malicious.

And too often, the courts defer to agencies under the legal doctrine of presumption of administrative expertise.  In their wide discretion, judges conveniently say that they are loathe to substitute their judgement for that of the officials who are presumed to be expert.  Or unless an elusive “clear error” is found.

The Carson/Donnelly rebuke of the VA stands in stark contrast to the willful and irrational position of City-County Councilor Joe Simpson who has adamantly declined to support the community— even though the nearby neighborhoods have voiced their strong opposition to the VA plan.  When pressed for an explanation, Simpson defiantly declares only that “I’m a Veteran!” as if that is a pertinent or satisfactory explanation for his repudiation of the positions of several neighborhood organizations in his district and his support of a remarkably and unnecessarily destructive VA plan.  Many local veterans are strongly opposed to the VA’s plan and are actively engaged in the battle against it.  Some have recently participated in civil disobedience.  Simpson’s opposition based only upon his military service background reminds of Samuel Johnson’s 1775 observation that “Patriotism is the last refuge of the scoundrel”.  (Johnson was not indicting patriotism in general, only false patriotism).

Perhaps, in the future, the true reason for Simpson’s blind obeisance to the VA and Crown Hill will become known.

The Donnelly/Carson letter only mentions failure of outreach and does not specifically cite the VA’s failure to consider site alternatives— although this glaring failure is likely implied in their exhortations about community involvement.

The Alliance of Crown Hill Neighbors appreciates the efforts of Congressman Carson and Senator Donnelly to right the VA’s wrongs.


VA cemetary plan declares war on community coherence 9-2-16

Veterans cemetery plan at Crown Hill declares war on community coherence and a priceless urban forest

Wendell Berry’s 2005 book The Way of Ignorance extols the virtue of coherence in communities— that condition which is generally characterized by higher-order social and cultural values which seem to be increasingly under assault in America.

Berry laments the general destructiveness of the industrial economy, and we’ve often witnessed its anti-nature, anti-social effects. Most recently in Indianapolis, a large tract of woods, wetlands, and wildlife habitat at 86th and Meridian was wantonly destroyed, during the spring nesting season, by a Texas-based housing developer.  In many parts of Indianapolis, the only remaining undeveloped tracts are low-lying and wooded and comprise the scant remaining natural fabric of our community.  These natural areas, sometimes called “refugia” by ecologists, have too often become the target of the industrial economy which is always searching for “raw land” to develop.

Crown Hill cemetery and the Department of Veterans Affairs are contributing parties to this  destruction.  Their plan for a 15-acre national veteran’s columbaria cemetery for above-ground internment of cremated remains would cut the heart out of a tract of virgin forest along West 42nd Street. This would be completely unnecessary because several common-sense and likely lower-cost alternatives are apparent.  None of the obvious less destructive alternatives were evaluated by either Crown Hill or the VA and none were presented for public consultation.

Berry writes: “The most forceful context of every habitat now is the industrial economy that is doing damage to all habitats. We can’t preserve neighborliness, or charity, or peacability, or an ecological consciousness, or anything else worth preserving, at the same time we maintain an earth-destroying economy”.

In defense of its destructive plan, Crown Hill is quick to assert that the property is properly zoned for cemetery use.  It claims, for that reason, that there should be no objection or debate about the appropriateness of a veteran’s cemetery on the forested tract.  The VA’s project manager, the Army Corps of Engineers/Louisville district, has also stated that dubious claim.  Unfortunately however, in Indianapolis, our system of zoning almost never protects natural areas unless they are existing public parks.  In his book’s essay, The Purpose of a Coherent Community, Berry appropriately condemns the earth’s “ruthless exploiters who are claiming everywhere their ‘right’ to plunder, waste, corrupt and destroy the great possessions that have been given to us on the condition only of our devoted care”.

The VA should immediately re-open the public review process for this plan, invite wide public input, and fairly consider all practicable alternatives. The public trust and community coherence depend on it.


Memo to the VA

In addition to the August 28th post, I’ve prepared 5 other opinion pieces during the past year in which the work has unfolded to save the 15-acre heart of the Crown Hill north woods. I’ll post these windy pieces which I hope have helped to educate and persuade our policy-makers to reconsider the destruction of the woods.   


Memo (9-10-16) to the Department of Veterans Affairs:  Destroying the Crown Hill woodland is not creation of beauty— it’s the destruction of Creation

“..the human response to grief is creation, often the creation of beauty.  “We have art” philosopher Friedrich Nietzsche wrote, “in order not to die of the truth”.  After a friend dies, there is a compassionate letter written, a casserole made, a coffin crafted from cherry wood, a tree planted.”… And humans sometimes respond to grief by turning to the comfort and reassurance of the natural world: its peace:  the steady surge and flow of the sea on sand, water slipping over stones.  Sorrow is part of the Earth’s great cycles, the surge from living to dying to life again.  Maybe this is why grief can make a deeper connection to the currents of life and so connect, somehow, to sources of solace and courage.’

Kathleen Dean Moore, Great Tide Rising—Towards Clarity and Moral Courage in a Time of Planetary Change, 2016  p. 221

Cutting down a pre-settlement remnant forest habitat (the Creation) and replacing it with hardscape is not “the creation of beauty”, rather its antithesis.   Nor is it a way to gain comfort from grief by having the opportunity to connect with Nature.  A new cemetery on the selected site would all but destroy the natural attributes and appeal of the area.

While removal of the woodland would not assuage (but arguably exacerbate) the grief of loss of loved ones or fallen warriors, it would cause great grief and sense of loss (and actual physical loss) to the community.

Ms. Moore’s book is focused on climate change which is rapidly and significantly disrupting climate, weather patterns, oceans, and habitats worldwide.  Yet the Veterans Affairs Department’s two supposedly justifying documents (the Environmental Assessment and the Finding of No Significant Impact) are silent on climate change (deforestation is among the contributing causes of global warming and the looming global climate crisis).

It’s sadly ironic that the continuing “death by a thousand cuts” to the greenscape of Indianapolis, and to the worldwide climate via global warming, is being driven by the VA’s desire to create columbaria buildings for the cremated remains of military veterans.

As environmental writer Dr. Barry Sanders reminds us in The Green Zone—The Environmental Costs of Militarism, 2009, “.. the most obvious point, one to which thousands of scientists worldwide call our attention: the threat is not to the survival of the economy.  It is to the survival of the planet itself.  I am reminded here of Pogo’s famous line: ‘We have met the enemy and he is us.”

Clarke Kahlo





Slouching towards Nineveh

 Our Federal District Court: Slouching towards Nineveh – is undue judicial deference to administrative power subordinating the public and natural interest?

In One With Nineveh— Politics, Consumption, and the Human Future, authors Paul and Anne Ehrlich remind that the once grand and green Assyrian city of Nineveh in Mesopotamia disappeared as a partial result of the decline of its resource base, including deforestation. This was referred to as “ecological suicide” by Jared Diamond (in his The Collapse of Civilizations).  One hopes that our more educated, complex civilization is not also headed in that direction. However, current indications continue to give pause and the attempts to preserve the north woods at Crown Hill Cemetery are a case in point.

On January 13, 2017, U. S. Second District Chief Judge Jane Magnus-Stinson issued an order denying Plaintiffs’ Motion for a preliminary injunction against the Veterans Administration which had been previously filed by several parties aligned with the Alliance of Crown Hill Neighbors and the Indiana Forest Alliance. The Judge’s 26-page order resoundingly rebuffs and dismisses the claims and concerns of the plaintiffs. Much of her rationale for denying the injunction was based on case law precedent sustaining the appropriateness of judicial deference to the administrative agencies.

Fortunately, the department of veterans Affairs VA, with a newly-appointed Secretary (David Shulkin) and the encouragement of two Indiana legislators, decided in May to modify its cemetery plan by selecting another nearby (adjacent) non-forested site, thus avoiding the destruction of the mature forest and its inhabitants.

I was one of the eight plaintiffs in the lawsuit and was disappointed in the Court’s adverse decision.  In the intervening period, I’ve been ruminating about it and reading two books by an expert on administrative law.   Columbia law Professor Philip Hamburger is critical of the administrative state and to excessive legal deference to administrative agencies.  See The Administrative Threat (2016) and Is Administrative Law Unlawful (2014).

It’s important to note that Judge Magnus-Stinson is a widely respected jurist, and our Judiciary is entitled to high respect.  It’s a vital element of our constitutional system based on separation of powers and checks and balances.  In our constitutional republic, the courts have an important role to, in effect, hold the other two branches in check.

Because I have no legal education, I’m reluctant to substitute my judgement and personal opinions for that of a respected chief judge, her appointed magistrate, and their legal staffs who are trained legal analysts.  Yet, I believe there are reasonable questions to be asked about the decision— at least from the point of view of a forest- and public-interest preservation-minded lay person. As Edward Abbey reminds, “Where the means of communication fall within the control of a tightly centralized monopoly, free speech becomes a meaningless gesture, a useless privilege When and if the opportunity does come, one must make the most of it or betray thy neighbors and thyself.”  (Source: Vox Clamantis in Deserto, A Voice Crying in the Wilderness, 1989)

Also, there are related questions about the two pieces of federal legislation which supposedly provide protection for the environment (National Environmental Policy Act– NEPA) and for the interests of citizens challenging agency actions (the Administrative Procedures Act — APA).  Those questions are for another time, but in general, the concerns which seem most pertinent are 1) why did NEPA provide no protection for the woods in this case?  2)  why does the APA provide such limited scope of review, and 3) and why, according to the decision’s cited judicial precedents and the standards of review provided by the APA, is supposed “substantial agency expertise entitled to judicial deference”, i.e. not to be re-evaluated by a court?

The larger overarching question for me is:  if the Plaintiffs had such a weak legal case, according to the decision’s cited principles of law and case law precedents, and its dismissive, critical language about the merits of Plaintiffs’ cause, why did the VA reverse itself in May and select the very (less-impacted) site which one of the Plaintiffs had recommended (in a meeting w/ Crown Hill) on August 10, 2016)?

But for the intervention of Senator Donnelly and Congressman Carson, following the judge’s decision, and the fortuitous independent review of new VA Secretary Shulkin, the woods would now be mostly gone.  Why did the law not provide protection for these woods?

It’s expertise notwithstanding, the judiciary, like everyone else, is subject to potential bias. And in the VA case, the prevailing party was a government agency which might have received favored treatment.  As professor Hamburger observes:

“In court cases, there are two types of questions, those of law and those of fact.  The combination of these two types of deference – to an agency’s interpretation and to its record— is therefore especially disturbing. It means that, where the government is a party, there is systematic judicial bias in favor of the government on both the law and the facts”.   The Administrative Threat by Philip Hamburger

He further addresses the potential for systematic, institutional judicial bias.

“But this judicial deference is unconstitutional.  One problem is the judicial abandonment of independent judgement. When judges defer to agency interpretations, they depart from their judicial office or duty, under article III of the Constitution to exercise their own independent judgment  … The judges therefore cannot defer to an agency’s interpretation without abandoning their duty—indeed their very office— as judges.

But this is not all; it gets worse.  When the government is a party to a case, the doctrines that require judicial deference to agency interpretation are precommitments in favor of the government’s legal position, and the effect is systematic judicial bias.  Of course, this is an institutional rather than personal predisposition, but it is therefore all the more systematic in favoring the most powerful of parties.” (emphasis added)

Professor Hamburger’s more comprehensive 2014 book provides elaboration of judicial deference, and makes interesting reading.  In one summarizing statement (in the chapter titled Return to Deference), he writes: “Whereas once judges heard independent actions against executive officers, they now are the final participants in an appeals process that oversees administrative agencies.  The result is that administrators feel liberated from the constraints of law and judges feel bound to make the administrative system work”.

This is so right-on!   Over the years, I’ve seen many examples of either administrative law judges, state circuit and Federal courts basically, in my lay opinion,  just sign off on the arbitrary actions of the agencies, excusing their abrogation of duty by saying that the (the Courts) decline to substitute their judgement for that of the agency..  

Judge Magnus-Stinson cites much authority and case law supporting the Court’s deference in the VA case.  Her ruling gives the impression of careful conformance to the Constitution and the rule of law, and it might well be just that.  However, from my perspective, whether or not institutional bias was present, her denial of the injunction is arguably another example of the increasing and excessive power of the administrative state which seems less and less to be subject to judicial control and more and more apt to destroy our remaining natural heritage, as our culture continues its seemingly inexorable slouching towards Nineveh.

Clarke Kahlo


Updates– the “damn dam” and Crown Hilll woods in Indianapolis

I haven’t posted in a while, so here’s a brief update.

There is no news on the planned dam and reservoir in Madison County.  Apparently, the CED is still studying a revised plan and trying to line up supporters and funding.  In February, the Indiana Finance Authority told the CED that there were no discretionary monies available for the project.  Perhaps the CED has been lobbying Washington DC.  Although, the news today of the astonishing, catastrophic flooding in Texas will likely make funding for a new dam an even harder sell.  .

Crown Hill woods:  A tremendous victory for the survival of the woods was achieved in May when the Veterans Administration announced that it had reached agreement with Crown Hill Cemetery to relocate the planned cemetery expansion.  They selected the site immediately to the east of the 15-acre tract of woods which is mostly open field.  This is the same area which we pointed out to Crown Hill president Keith Norwalk in a meeting on August 1th.  His specious reply was that they had rejected that site initially “because the neighborhood didn’t want an eyesore”   Total bald-faced baloney.

From what we are told, Crown Hill and the VA are currently finalizing the deal and that construction would start this fall.

I will be posting more on this.  More info about it on the website of the Indiana Forest Alliance