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Thursday, July 20, 2006

Ind. Decisions - "Appellate court reverses DeKalb logjam decision"

"Appellate court reverses DeKalb logjam decision" is the headline to a story today by Angela Mapes in the Fort Wayne Journal Gazette, about a Court of Appeals ruling Tuesday in the case of Izaak Walton League of America, Inc. & Cedar Creek Wildlife Project, Inc. v. DeKalb County Surveyor's Office & Indiana Department of Natural Resources. (Access the ILB summary here - third case.) Some quotes from the story:

Environmental activists this week won a victory over the removal of logjams in DeKalb County, a victory they hope may lead to changes on a statewide level.

The Indiana Court of Appeals ruled Tuesday that a petition for judicial review of a permit issued for the removal of logjams on the creek, filed by the Izaak Walton League of America and the Cedar Creek Wildlife Project, should not have been dismissed last year.

The trial court dismissed the petition based on arguments that the environmental groups had not provided adequate records for judicial review. The appellate court overturned that ruling this week and ordered the case be sent back to the trial court.The case dates to 2001, when the Department of Natural Resources issued a permit to the DeKalb County surveyor’s office to remove two logjams from Cedar Creek.

Logjams can cause the water to change course, deposit sediment and swell over its banks, the surveyor said at the time.

The Izaak Walton League, the Cedar Creek group and four individuals filed a petition for judicial review of the permit, claiming the DNR had not considered the cumulative effects of granting the logjam renewal permit, as required by state law.

While the case was pending, the logjams in question were removed.

In 2003, an administrative law judge with the Natural Resources Commission ruled – after a hearing months earlier – that the DNR may not have considered cumulative effects and ordered the permit be sent back to the DNR for further review.

The environmental groups petitioned again in 2004 for judicial review in Allen Circuit Court, after the Natural Resources Commission acknowledged the DNR had not considered the cumulative effects but also had not invalidated the permit to remove the logjams.

Mary Anna Feitler, president of the DeKalb County chapter of the Izaak Walton League, said the case is worth pursuing even though the logjams in question were removed several years ago.

The issue is broader than Cedar Creek, she said.

“It’s important to get on the record that cumulative effects have to be considered in any future work, and to make the DNR do something about it,” Feitler said.

[More] See also this July 19th analysis of the decision by attorney Marty Lucas of BigEastern.com. He concludes:
It seems that this issue: whether a permit issued by DNR without proper consideration of cumulative effects must therefore be invalidated, will now be considered by the trial court on judicial review.

So, at long last, here's the bottom line. Cumulative effects are a big deal. Most of the environmental degradation issues facing Indiana's waterways are the product of a million little hurts, not one big disaster. I hope that DNR will begin to more seriously and systematically consider cumulative effects, and quit fighting against people who point out that they have a responsiblity to do this.

Posted by Marcia Oddi on July 20, 2006 06:58 AM
Posted to Indiana Courts