As right-to-work protests echoed through the Indiana

Statehouse following Gov.

Mitch Daniels'

final State

of the State address

last week, The

Nature Conservancy

stepped forward to give the governor a pat on the back.

"Governor Daniels' announcement tonight about the

creation of the Bicentennial Nature Trust is the capstone of a truly

extraordinary conservation agenda for his administration," the group's

state director Mary


said in a news release issued after the address.

"From the establishment of Goose


in Greene County to his visionary Healthy Rivers Initiative to protect

and make accessible a hundred miles of floodplain along the Wabash River,

Governor Daniels has created a legacy that will be cherished by Hoosiers for

the next 200 years."

As a sequel to the statewide parks system the state

established on the 100th anniversary of its founding, Daniels said

his administration identified $20 million in existing state funding to

establish the trust meant to inspire additional private donations of money and

land "in a continuing statewide surge of conservation" as the state

nears its 2016 bicentennial.

The state's Bicentennial Commission, chaired by Lt.

Gov. Becky Skillman

and former U.S. Congressman Lee Hamilton, will oversee

the project.

Daniels noted that his administration plans to supervise the

conservation of more than 50,000 acres by the end of 2012. He offered the 8,064-acre

Goose Pond near Linton, Muscatatuck Bottoms, which targets

more than 25,000 acres, and the Wabash Corridor, which is set to protect more

than 43,000 acres along the Wabash


as highlights.

Regarding I-69, Daniels did not have much to say except that

it will soon be open from Evansville to Crane Naval Base.

Within the next few weeks and months, however, a group of

federal and administrative law judges will weigh in on several pending

complaints issues by the Hoosier

Environmental Council,

Citizens for Appropriate Rural Roads and scores of

property owners against the U.S. Department of Transportation, Federal Highway

Administration, Indiana Department of Transportation and Indiana Department of

Natural Resources.

[See the next page for a summary of the status, possible outcomes and jurisdiction on the ongoing cases.]


Here is summary of what the courts will consider:

CARR et al v. the

U.S. DOT, INDOT and the FHA

Cause No. 1:11-CV-1031-SEB-DML

The lawsuit takes the current set of I-69 environmental

impact studies to task, suggesting that they are based on outdated data and did

not take proper account of the region's fragile and porous karst terrain or the affected historic

and archaeological sites.

In addition, the suit alleges: "INDOT and FHWA and

their contractors have engaged in a pattern of entering onto private property

without permission or knowledge of the landowners for archaeological

investigations and removing artifacts from those private properties without

consent from or the knowledge of the landowners, in violations of State and

federal law."

The first third of the 63-page lawsuit introduces each of

the plaintiffs and outlines their personal concerns with the project. This

litany of complaints centers on the irreplaceable quality of life, place and

environment the plaintiffs enjoy on properties affected by the project, as well

as the environmental burden the highway's construction and operation would

place on local land, water and air resources.

The suit then moves into specific counts, charging violation

— and in some cases multiple violations — of the Clean Air Act,

Endangered Species Act, National Environmental Policy Act, the Administrative

Procedures Act and the Transportation Act.

"Plaintiffs have no adequate remedy at law," the

suit states. "Unless this Court grants the requested relief, the

defendants' actions will cause irreparable harm to the environment, to

plaintiffs' and their members' interests, and to the public in violation of

federal law and contrary to the public interest. No monetary damages or other

legal remedy could adequately compensate plaintiffs, their members or the

public for these harms."


U.S. District Court, Southern District of Indiana – Judge Sarah Evans


Current Status:

The court has scheduled a hearing on a Motion for Preliminary Injunction at 10

a.m. on Feb. 8 in Room #216 of the U.S. District Courthouse at 46 E. Ohio St.

in Indianapolis.

Possible Outcomes:

If granted, the motion would prevent further implementation of design,

construction or land acquisition until the trial is completed.

HEC v. U.S. Army

Corps of Engineers and INDOT

Cause No.


Construction on Section Three, ranging from Washington to

Newberry in southern Greene County, is ongoing, but not yet near completion.

HEC contends the Corps is in violation of the Clean Water

Act because it did not conduct an independent analysis of how the construction

will affect water crossings and wetlands. The federal and the state government

contend they are in compliance with the law.


U.S. District Court, Southern District of Indiana – Judge Larry J.


Current Status: Arguments

on a Motion for Summary Judgment will be heard at 2 p.m. on March 16 in Room

349 of the U.S. District Court in Indianapolis.

Possible Outcomes:

If granted, the motion would require the Corps to conduct an independent

analysis of environmental impacts. A victory for HEC could halt activity around

waterways until the Corp's independent review either validates or rejects the

existing plan. Another interpretation holds that the Clean Water Act's

requirements for evaluation of and selection of the least damaging alternative

may mean killing the project or using a different route.

HEC v. the Army Corps

of Engineers

Cause No.


The issues in the case are essentially the same as those

raised by HEC in the other federal case it brought against the Corps, but apply

to construction in the waterways of Section Two from Oakland City to


"The Corps basically just relied on the environmental

studies done by INDOT with no independent assessment," said Tim Maloney, HEC's senior policy director.

Rather than offer a critical analysis, Maloney said, "they

just rubberstamped what INDOT approved."

The Corps has yet to file its response.

Jurisdiction: U.S.

District Court, Southern District of Indiana

Current Status:

Complaint filed. Defense response due Jan. 17.

Possible Outcomes:

This decision will dictate what happens with Corps permit review process. See

previous case.

HEC and Property

Owners v. INDOT and the IDNR

Administrative Cause

Numbers: 11-067W and FW-25881

This complaint, which combined two separate complaints on

similar issues, questions the validity of flood plain construction permits on

the East Fork of the White River in Section Two. Among the issues petitioners

hope to debate: whether the construction "will cause unreasonable harm to

life, safety and property ..." They also claim construction approval was

given without securing flood easements and that the staged permitting pursued

by INDOT allowed construction to proceed before all easements were secure to

complete the project ... (which) "exceeds the Department's authority and is

therefore unlawful."


State administrative proceeding before an administrative law judge

Current Status: A

Jan. 18 conference call between the judge and the parties in

the case is expected to set a hearing date.

Possible Outcomes:

The administrative law judge could order the permit overturned or changes in

the permit to address the petitioners' objections.


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