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.   

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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

Indianapolis

9-10-16

 

 

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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

8-27-17

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

https://indianaforestalliance.org/crownhillwoods/.

 

 

 

On Nature column– climate crisis imperils civilization

The following is an excellent column in The Herald Bulletin by Kevin Tungesvick, a co-founder of Heart of the River coalition

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On Nature column: Current climate spiral detrimental to our civilization

  • May 20, 2017

When I was born in 1968, the concentration of carbon dioxide in the atmosphere was approximately 322 parts per million (ppm). It has steadily risen throughout my lifetime, reaching 400 ppm on May 9, 2013, just a few weeks before my 45th birthday. On April 18 of this year, the concentration pushed through 410 ppm.

These figures compare to an approximate concentration of 280 ppm prior to the Industrial Revolution. While deforestation and other changes in land use have contributed significantly to this increase, the majority of this change has resulted from the burning of fossil fuels. Much of the carbon stored in these fuels has been sequestered underground since the Paleozoic era, long before the age of the dinosaurs. Releasing this carbon back into the atmosphere has profound consequences for our climate, our ecosystems and, most of all, for our civilization.

Carbon dioxide, along with water vapor, methane, ozone and a few other minor gases, are known as greenhouse gases for their ability to trap heat in the atmosphere. The sun bathes our planet in visible and ultraviolet light, warming the surface. The Earth radiates this energy back to space in the form of infrared radiation. Greenhouse gases have the ability to absorb some of this radiation and radiate it back toward Earth, warming the planet. In their absence, the average surface temperature of the Earth would be well below freezing. This science was theorized in the early to mid 1800s and began to be quantified in 1864 when John Tyndall found that water vapor, hydrocarbons and carbon dioxide strongly blocked the transmission of infrared radiation. The science of global warming from greenhouse gases is neither new nor controversial in scientific research.

Unfortunately, while some greenhouse gases are necessary to make the planet habitable, the current upward spiral in their concentrations will warm the planet in ways highly detrimental to civilization. The fact that 2014, 2015 and 2016 each broke the previous record for warmest global average temperature shows the warming process is accelerating. The laws of physics dictate this warming will continue as long as greenhouse gas concentrations continue to rise.

For the past several thousand years, the remarkably stable climate of the Holocene Epoch has allowed humankind to flourish. Steady temperatures and sea levels permitted the development of coastal cities and seafaring trade that facilitated the colonization of all of the habitable continents and islands. Sea level rise from the melting of the ice sheets on Greenland and Antarctica will combine with disruptive droughts and extreme weather to bring this prosperous era to a close by creating millions of climate refugees that will threaten geopolitical stability. The plummeting costs of renewable energy have given us the tools to avoid the worst of these disruptive effects. We must now implement these technologies without delay. It is our moral obligation to future generations.

Kevin Tungesvick, a lifelong resident of Madison County, is an avid naturalist and self-taught botanist. He is a founding director of Heart of the River Coalition.

VA now in review/recess mode– recalling Recessional

Since the March 6th direct protest action (site occupation) by a group named Crown Hill Woods Protectors, the Veterans Administration has been studying several alternative sites for its planned memorial cemetery in Indianapolis. This is a very positive turn of events and the Alliance of Crown Hill Neighbors and many other community groups are very hopeful that an accord can be reached which would save and permanently protect the forest ecosystem and also provide a suitable location for the planned columbarium.

I’ve always liked Rudyard Kipling’s famous poem Recessional and it seems appropriate for several reasons to recall it now– along with following commentary provided by Paul and Anne Ehrlich from their 2004 book One With Nineveh— Politics, Consumption, and the Human Future.   

Recessional by Rudyard Kipling, 1897

“God of our fathers, known of old—

Lord of our far-flung battle line—

Beneath whose awful hand we hold

Dominion over palm and pine—

Lord God of Hosts, be with us yet,

Lest we forget, lest we forget!

 

The tumult and the shouting dies—

The captains and the kings depart—

Still stands thine ancient sacrifice,

An humble and a contrite heart,

Lord God of Hosts, be with us yet,

Lest we forget, lest we forget!

 

Far call’d our navies melt away—

On dune and headland sinks the fire—

Lo, all our pomp of yesterday

Is one with Nineveh and Tyre!

Judge of the Nations, spare us yet,

Lest we forget, lest we forget!”

 

“Recessional,” Rudyard Kipling’s famous 1897 poem that refers to Nineveh’s fall, is a cautionary tale about pride and arrogance, itself written during the high tide of the British Empire.  Early civilizations, not just in Mesopotamia and Egypt but also elsewhere in the Middle East, Mesoamerica, and East Asia, were notoriously hierarchal, ruled over by people with enormous presumption.  This is attested by the abundant remains of pyramids and palaces created by the labor of thousands for the use of a tiny elite….

“The Greek word hubris best describes the kind of overweening pride, arrogance, and presumption memorialized in those Assyrian royal annals and the extensive bas-reliefs of Nineveh.  Of course, displays of hubris are not confined to ancient times, or to the region between the Tigris and the Euphrates, or even to the glory days of the British Empire.  …

“Hubris-based misuse of power, in our view, is a major reason why increased overpopulation and runaway consumption—driving forces in environmental deterioration—are not being adequately assessed or addressed….

“We think that all these assumptions show a lack of contact with reality. Collective hubris reinforces the desires of many of the most powerful segments of civilization, and it helps create collective denial.  It prevents people from seeing what society’s environmental choices mean for our children and grandchildren….

“Dealing with population, consumption, and power will not be easy.  But each day that we do nothing forecloses options for creating a better future, for avoiding Nineveh-like ecological suicide in our time.”

Source:  One with Nineveh— Politics, Consumption, and the Human Future,  Ehrlich, Paul and Anne, 2004

 

 

 

Read! Read!

 

A recent Facebook post by the Protectors of Crown Hill Woods supplied a video of a classic 1970 episode of Mayberry RFD (titled The Mayberry Road) which was spot-on in so many ways both obvious and subtle.  It featured a battle between the Mayberry Garden Club and the County Commission road-builders who planned a destructive short-cut designed to save time in the drive to Mount Pilot.  It’s a must see:

http://www.dailymotion.com/video/x1glp6x_mayberry-rfd-s02e19-the-mayberry-road_shortfilms

In making her woods preservation case, Aunt Bea points out to the Garden Club “this latest step in the desecration of our woodland areas” and she later makes an appeal to Sam Jones, the president of the Town Council.

After he balked, she incredulously asks “Sam, don’t you read?  Don’t you know there’s a battle raging on behalf of conservation – saving our natural resources?”  Scholarly Howard, the Town Clerk/Postmaster, then pitches in with a reference to supportive information he had recently read.

Of course, having read nothing about conservation issues, Sam is clueless about the case for preserving natural heritage and instead argues that progress reasonably requires the loss of a few trees.  Eventually however Aunt Bea prevails, after some civil disobedient direst action, and the planned road is re-aligned by the County to avoid destroying the woods—the classic “win-win” for each side.

I thought Aunt Bea’s remark about the importance of reading the current literature on conservation issues, although a subtle remark, was one of the important messages of the story and one of the main reasons that there is so much ignorance by public officials and the general public about the importance of preserving our natural heritage.  We are so fortunate, especially during the past couple of decades, to have such a great wealth of brilliant literature of place by such a wide variety of great writers and experts.  But are their works widely read?  Unfortunately, not enough!

I first became interested in environmental and place literature in the late 1980s after reading a book of essays (Where We Live—Essays about Indiana) published in 1989 by The Indiana Humanities Council (now Indiana Humanities).  Since then, the range of available titles about global environmental protection and good place-making have greatly expanded.  We can only hope that these books are being read by both conservation advocates and public officials who have the power and authority to act.

When my daughter was about 3 years old, she perched on my lap one evening as I read children’s stories to her.  After some time, I started to drift off to sleep whereupon she forcefully grabbed me with two fists by the shirt front at demanded that I “Read! Read!”.   It’s universal good advice—whether we’re reading bedtime stories or prescriptions on how to save our planet.

 

 

 

 

 

 

Ann Zwinger: Remembering Indiana and the White River

“When I think about growing up in Indiana, the image that comes most strongly to mind is that of the White River.  ……It took me a good many years to realize what the intimate presence of a river in your childhood means, and just what a rich heritage it is.  Or what the remembrance of a familiar countryside means…. The imprint of the Indiana landscape–the whole intermeshing of plant and landscape, of sky and earth, of people and place– is distinctively what I remember as the essence of Indiana…. perhaps that heritage doesn’t reveal itself until you’re older.  Until then you’re too busy growing up, and there is certainly the glee in leaving behind the familiar and undertaking the new.  But when you begin your own work, you have to dip back into the reservoir of your life and rediscover.  What was there, tucked away in memory, has become not mere nostalgia but a base upon which to proceed…. There seems to be something about looking into the natural world that brings satisfactions I don’t see very much elsewhere.  One reason for this must certainly be nature’s continual restoration and continual reaffirmation of a sense of logic.  Nature can indeed be capricious, but overall, nature is organized and has a place for everything  There is cause and effect, not always clear, but the more one studies, the more one becomes aware of a natural progression of events, a natural logic.   We need logic and structure in our lives; we need to be assured that this is after all a rational world.  It’s a thin reassurance if you base it upon the actions of the human species.   People don’t always perform rationally; nature does. The sun always rises in the east.

Ann Zwinger, Essay, Remembering Indiana, Audubon Magazine, Jan. 95