The First U.S. Rights-Of-Nature Symposium

The Community Environmental Legal Defense Fund (CELDF) sponsored a terrific conference yesterday– The First U.S. Rights-Of-Nature Symposium at Tulane Law School in New Orleans.

The video is posted on the CELDF’s website at

If rivers, forests, species, and ecosystems had enforceable legal rights, perhaps we’d be preserving, instead of systematically destroying them.


Perhaps we should apply the “Viking way” to improve judicial decisions about our air, land. and water?


Historian Neil Oliver authored an interesting 2013 book The Vikings— A New History which described a legal system in ancient Iceland controlled by a single elected “law speaker”, but also voted upon by all free men. Here’s the   pertinent excerpt:

“The Iceland Althing met for 15 days every year, at the time of the summer solstice, and one of the most important tasks was the election of the sogumadhr—the law speaker. For a society without a written language, memory was key, and the man who could recite the law acted with the authority of a judge.  A written body of laws emerged in Iceland eventually—called , inexplicably, the Gregas or Grey Goose law—but at first the whole lot of it was learned by heart and remembered by just one man at a time.

Each party to a dispute… agreed to accept whatever judgement was handed down. As well as the wisdom of the law speaker, decisions depended upon the votes of all free men. In a system that was essentially one man, one-vote, majority and consensus were all.

By the time the German historian Adam of Bremen came to write about the ways of the Icelanders in the second half of the eleventh century, he was able to say: “They have no king, only the law.”

Civilizations and legal systems have advanced since those times.  We no longer live in small groups and villages and relationships have become more complex.

Nevertheless, it’s interesting to muse about what results might be  produced if judges’ decisions would be subject to popular ratification.  For instance, what if U.S District Court’s chief judge Jane Magnus-Stinson’s January, 2017 ruling denying the requested injunction (seeking an order to temporarily stay the planned destruction of the mature woods at Crown Hill cemetery in Indianapolis) had been subject to popular review and vote?  Would her ruling have been sustained?  Would the people have allowed the destruction of the mature woods to needlessly proceed?  Not very likely.  Not if they were adequately educated about the issues, the facts, and the alternatives, as well as the appealing prospect of the emerging legal doctrine of the inherent rights of nature.

Perhaps we should consider amending our judicial procedures to follow the Viking system to provide for popular review, especially in cases of natural heritage and ecological protection and sustainability.

Crown Hill Cemetery’s board of old-line elites says it feels unfairly put-upon by environmentalists  —  “Cry me a river!”

Following the welcome decision by the VA, announced in May, to relocate its columbaria cemetery, it’s reported that the Crown Hill board of directors is supposedly greatly irked that their destructive plan was rebuffed, i.e. reversed by the VA.  They claim they “feel beaten-up”.  Part of their victim-card-playing angst, if not merely ego-driven resentment over receiving another community black-eye, is that the opposition (the ad hoc Alliance of Crown Hill Neighbors and other organizations and individuals) to their destructive plan was conducted by unruly environmentalists sharing a populist/communitarian, and nature-oriented philosophy. Such an indignity and affront to these smug politically-connected elites who are long accustomed to getting their way in Indianapolis.

Some Crown Hill board members have also cried that they believe their private property rights were trammeled. That’s the same-ol’ baloney that their then-attorney, Steven Mears, unsuccessfully argued before the Metropolitan Development Commission in March, 2007 when their private commercial development petition was denied.  However, they conveniently neglect to mention that they operate an IRS-designated tax-exempt entity. They pay no Federal or state corporate income or sales tax nor local real estate taxes.  Yet the Board has operated in a demonstrably anti-public way, such as little public transparency and egregious violation of public water management requirements. Also, cemetery plans and policies appear to be greatly influenced by Gibraltar Remembrance Services, LLC which is a private contractor for cemetery services (via a 2007 management agreement).  Curiously, Gibraltar was described by the cemetery’s president (Keith Norwalk) late last year as the cemetery’s “parent company”. Exactly how Gibraltar transitioned from a vendor of services in 2007 to the “parent company” of Crown Hill in 2016 remains a mystery to the general public. If it’s true.

It’s apparent that the check & balance supplied by two of our Congressional representatives (Sen. Donnelly and Rep. Carson) was instrumental in “persuading” the VA and Crown Hill to agree to move the location a few hundred feet to the east to an open field.  Previously neither entity had shown any interest in such a compromise with the community which had not only proposed the better site (in the same cemetery) but also a bona fide offer of purchase from an established local conservation trust.

I bumped into one of the Crown Hill board members (Gordon Wishard) at a restaurant in February.  We had a brief, civil conversation, but he couldn’t pass up the opportunity to pointedly remind me, with typical attorney smugness, of Federal District Court’s chief judge Jane Magnus-Stinson’s January ruling denying our petition for temporary injunction against the VA.  Fortunately for the forest and the community, that unduly deferential-to-the-administrative-agency ruling was later rendered moot by the legislator-derived resolution in May (forged by the work of Sen. Donnelly and Rep. Carson) between the VA and Crown Hill to simply move the planned cemetery a few hundred feet to the east.  Thank goodness for the responsiveness and concern of these two legislators— a needed check on the increasingly deferential judiciary which is slouching towards Nineveh (the former Assyrian city which turned to dust after outstripping its natural resources) by rulings which degrade our natural environment.

So, to the poor-me laments from the poor beleaguered board and management of Crown Hill cemetery/Gibraltar, I reply: “Cry me a river!”



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