A group of Dunes Acres residents calling themselves the Coalition to Protect
the Cowles Bog Area has filed suit in federal court against the National
Park Service (NPS), seeking to stop what it calls the “clear cutting” of
some 3,400 trees in this area of Indiana Dunes National Lakeshore.
The suit was filed by the Coalition on Tuesday in the Hammond Division of
the U.S. District Court for the Northern District of Indiana. Joining as
plaintiffs are Terry Grimm and Robert and Cheryl Evans. Named in the suit
are U.S. Secretary of the Interior Kenneth Salazar, National Lakeshore
Superintendent Constantine Dillon, and NPS botanist Dan Mason.
Work on what NPS has termed the “restoration” of the 25-acres in Cowles Bog
began soon after NPS issued a “Finding of No Significant Impact” (FONSI) on
Nov. 13, although NPS did not actually announce that finding until Dec. 3.
NPS has said it intends that work to restore the bog to the condition in
which it appeared to groundbreaking ecologist Henry Cowles when he studied
it early in the 20th century. That work includes the removal of tree cover
and understory vegetation, to which numerous Dune Acres residents objected
during the public-comment period.
The Coalition’s suit is specifically seeking a temporary restraining order
and preliminary injunction on four grounds.
The Coalition’s first argument: that in submitting its environmental
assessment under the National Environmental Policy Act (NEPA), it presented
an inadequate range of alternatives: (1) no action; (2) the clearing of 97
percent of the trees in the 25-acre parcel; and (3) the clearing of 99
percent of the trees.
“There is no practical difference between 99 percent and 97 percent tree
removal,” the suit states. “These alternatives are essentially the same,
which violates Director’s Order No. 12 that specifies that reasonable
alternatives be presented.”
The Coalition cites three “misrepresentations” in the NPS environmental
First: that assessment conveyed the “impression that the 25 acres in the
Cowles Bog Unit Area (were) unsold swamp land that was granted to the State
of Indiana by the U.S. government in 1850.” In fact, the suit states, the
parcels specifically involved in the “planned clear cutting” were purchased
by private persons, including Joseph Bailly, in 1837.
The second “misrepresentation”: the whole point of the project is to
“restore” the area to “conditions like those experienced by Henry Cowles and
his students, with a similar viewshed and a natural landscape under natural
processes,” according to the environmental assessment. But, the suit states,
Cowles did not bring his students to the area until 1913 and well before
that year—between 1890 and 1906—one Peter Peterson had built a house on the
project site and was farming it. “Thus, using the well-known name of Henry
Cowles to link the project area to a ‘natural landscape under natural
process’ when in fact that property was a farm with a farm house built on it
The third “misrepresentation”: although the environmental assessment
references an 1830 survey 13 times, the assessment does not—“surprisingly,”
in the word of suit—use the actual survey and notes. “Instead, an
interpretation of the survey and surveyor’s notes were used,” the suit
states. “This interpretation appears to omit the detail contained in the
original surveyor’s notes and introduces a greater possibility of error.”
The Coalition also alleges that NPS suppressed research in its environmental
assessment. That assessment—dated March 2012—specifically describes the area
to be clear-cut as “a mosaic of wet and mesic prairie with the presence of a
few scattered trees.”
However, on Sept. 26, 2012—six months later—NPS “changed its official
position,” in its Concern Statements and Responses, which document notes the
following: “We can now visualize that the transition between the mesic oak
dominated communities to the south and the marsh prairie to the north, had a
zone of pin and swamp white oak and other species.”
According to the suit, the “source of the newly released information
relating to the timbered corner section and pin oaks” is a report partially
prepared by NPS botanist Dan Mason—named in the suit—two years ago, on Oct.
“The information in this October 2010 report did not appear in the March
2012 environmental assessment, nor would it support the environmental
assessment’s preferred alternative,” the suit states. “This information was
apparently suppressed until now.”
Finally, the Coalition alleges that NPS suppressed responses from the public
which conflicted with the preferred alternative.
Although, for instance, the FONSI states that a March 31, 2012, meeting in
Dune Acres had around 35 people in attendance, the “actual number was at
least two and perhaps three times that number,” according to the suit.
“This miscount by itself would not be so distortive if (NPS) has not also
misstated the number of total responses that were received during the
comment period,” the suit states.
Thus, while NPS in Concern Statements and Responses cites a total of 74
responses—35 of which were in support, 39 expressive of concern—NPS did not
include in the total a petition signed by 98 persons.
In general, the suit alleges on the part of NPS foot-dragging, after
plaintiff Cheryl Evans filed a Freedom of Information Act (FOIA) request for
key documents. Although FOIA requires federal agencies to provide requested
records within 20 days of a request, the suit states, Evans did not receive
requested documents until 61 working days after her FOIA filing and not
until after she had filed an FOIA suit in federal court.
The suit also alleges one other incident of NPS foot-dragging. “Although
(NPS was) well aware that their project was highly controversial with the
local community, (NPS) did not issue a news release about receiving approval
to proceed with the project until 20 days after receiving the FONSI, which
was only five days before (NPS) began clear-cutting the trees,” the suit