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Indiana Forest Alliance v. McDonald

United States District Court, S.D. Indiana, Indianapolis Division

January 13, 2017

ROBERT A. MCDONALD Secretary of Veterans Affairs, U.S. DEPARTMENT OF VETERANS AFFAIRS, RONALD E. WALTERS Interim Under Secretary for Memorial Affairs, National Cemetery Association, NATIONAL CEMETERY ASSOCIATION, Defendants.



         Plaintiffs, who the Court will collectively refer to as the Indiana Forest Alliance (“IFA”), challenge Defendants' purchase of and proposed plan to use a heavily-wooded section of Crown Hill Cemetery for a cemetery expansion project to build columbaria to house the remains of Veterans (the “Project”) as part of Crown Hill National Cemetery.[1] IFA argues that the process Defendants used to analyze the environmental effects of the Project on the 14.75 acres of land at issue (the “Property”) violated the National Environmental Policy Act (“NEPA”). IFA seeks judicial review of that process under the Administrative Procedures Act (“APA”), and it asks for a preliminary injunction to stop Defendants from beginning to clear trees on the Property.

         For the reasons that follow, the Court denies IFA's request for a preliminary injunction. IFA overlooks the limited scope of this Court's administrative review, overstates the impact of the Project, and minimizes or even disregards the extensive process the Defendants utilized to solicit feedback and determine the environmental impact of the Project on the Property. Additionally, despite bearing the burden to support its injunction request, IFA assumes the public interest element of the analysis in its favor-without proof-and completely ignores that Crown Hill National Cemetery is currently at capacity and cannot accept additional Veterans for burial. IFA also ignores that Defendants reviewed the environmental impact of the Project after soliciting feedback pursuant to NEPA and made the decision to move forward with the Project after issuing a comprehensive analysis and making the report available to the public in various ways. IFA improperly asks this Court to second-guess that decision, which it cannot do within the context of administrative review. Because IFA has not met its burden to prove that a preliminary injunction is appropriate, its request must be denied.


         Preliminary Injunction Standard

         “To obtain a preliminary injunction, the moving party must show that its case has ‘some likelihood of success on the merits' and that it has ‘no adequate remedy at law and will suffer irreparable harm if a preliminary injunction is denied.'” Stuller, Inc. v. Steak N Shake Enters., Inc., 695 F.3d 676, 678 (7th Cir. 2012) (quoting Ezell v. City of Chi., 651 F.3d 684, 694 (7th Cir. 2011)). “If the moving party meets these threshold requirements, the district court ‘must consider the irreparable harm that the nonmoving party will suffer if preliminary relief is granted, balancing such harm against the irreparable harm the moving party will suffer if relief is denied.'” Stuller, 695 F.3d at 678 (quoting Ty, Inc. v. Jones Grp., Inc., 237 F.3d 891, 895 (7th Cir. 2001)). “The district court must also consider the public interest in granting or denying an injunction.” Stuller, 695 F.3d at 678.

         “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). “Preliminary relief is properly sought only to avert irreparable harm to the moving party.” Chicago United Indus., Ltd. v. City of Chicago, 445 F.3d 940, 944 (7th Cir. 2006). Because the merits of the underlying litigation are not at issue at this stage, “‘the reluctance to disturb the status quo prior to trial on the merits is an expression of judicial humility . . . [that] enables the court to stay relatively neutral in the underlying legal dispute.'” Id. at 945-46 (quoting O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 1012 (10th Cir. 2004)).



         The United States Department of Veterans Affairs (the “VA”) oversees the National Cemetery Administration (the “NCA”), which is “responsible for the interment of deceased servicemembers and veterans.” 38 U.S.C. § 2400. The VA may purchase additional land as needed for national cemeteries. 38 U.S.C. § 2406.

         To better meet the burial needs of Veterans, the NCA began an Urban Initiative to establish new columbaria-only cemeteries in five urban locations, including Indianapolis. [Filing No. 26 at 3 (citing Statement of NCA Deputy Under Secretary Glenn Powers (“The Powers Statement”) (available at (last visited Jan. 12, 2017)).] The goal of the Urban Initiative is to alleviate time and distance challenges for deceased Veterans' families to allow for a more convenient burial option. [Filing No. 26 at 3 (citing The Powers Statement).]

         As part of the Urban Initiative, the VA sought to purchase 14.75 acres of land to expand the current Crown Hill National Cemetery in Indianapolis.[2] [Filing No. 20-6 at 24.] In December 2013, the NCA solicited the opinions of eleven state and federal agencies as part of the early coordination phase of the environmental review process. [Filing No. 20-6 at 13-25.] These entities included the Indianapolis Metropolitan Planning Organization, the Indiana Department of Environmental Management, the Indiana Department of Natural Resources, the Natural Resources Conservation Service based in Indianapolis, the Environmental Geology Section of the Indiana Geological Survey, the Indiana Department of Transportation, the National Park Service, the United States Department of Housing and Urban Development, the United States Fish and Wildlife Service, the Federal Highway Administration, and the United States Army Corps of Engineers. [Filing No. 20-6 at 22-23.] The Early Coordination Packet specifically identified the Property sought for the cemetery expansion Project. [Filing No. 20-6 at 24.] It included pictures of the area and described the location as “heavily wooded with numerous shagbark hickory, oak, and cottonwood trees (among others) comprising the overstory. There is a dominance of invasive honeysuckle shrubs as well.” [Filing No. 20-6 at 24.] The Early Coordination Packet described the Project as follows:

• Vegetation removal: There will be both clear cutting and selective removal of trees. There will be removal of portions of the forested areas to create an entrance and roadway system to accommodate the construction of columbarium walls, a main flagpole area, and a small public information/restroom building. Tree removal will take place in areas where the cemetery development will occur. The cemetery will be developed in phases. with each phase accommodating approximately 10 years of cremations capacity. Existing forested areas will be removed as each phase of development occurs: there will be some tree buffers and forested areas that are left undisturbed to retain the character and serenity of the site.
• The national veteran burial grounds cemetery planned for this site does not include any type of in ground burials: it is to be developed for aboveground columbarium niche walls.

[Filing No. 20-6 at 24.] Recipients of the Early Coordination Packet were asked to respond within thirty days, although extensions could be accommodated. [Filing No. 20-6 at 25.]

         In response to the Early Coordination Packet, the NCA received multiple responses. [See Filing No. 20-22 at 50-53 (summary of responses).] For example, the United States Department of Fish and Wildlife Services (“USFWS”) responded on December 27, 2013, noting that the Project was within the range of two types of federal endangered bats. [Filing No. 20-6 at 35.] USFWS concluded that the Project “will not eliminate enough habitat to affect this species, ” but it asked that “tree-clearing be avoided during the period April 1 - September 30” to “avoid incidental take from removal of an occupied roost tree.” [Filing No. 20-6 at 35.] As long as tree-clearing was avoided during the identified period, USFWS concluded that “the proposed project is not likely to adversely affect this listed species.” [Filing No. 20-6 at 35.]

         The Indiana Department of Natural Resources (“IDNR”) responded on January 14, 2014. [Filing No. 20-22 at 51.] It stated that “no protected plants or animals have been documented in the vicinity of the proposed project area.” [Filing No. 20-22 at 51.] It did, however, express “concern for the significant impact to resident wildlife and migratory birds due to the loss of breeding and stop-over habitat.” [ Filing No. 20-22 at 51.] IDNR provided several recommendations for avoidance, minimization, and mitigation. [Filing No. 20-22 at 51.]

         The Indiana Department of Environmental Management (“IDEM”) responded on December 16, 2013. [Filing No. 20-22 at 52.] It stated that there had been a previous wetland delineation on the site and that a new survey would be necessary. [Filing No. 20-22 at 52.] It also noted that “previous development proposals of the property generated public outcry from surrounding neighborhoods.” [Filing No. 20-22 at 52.]

         In February 2014, ASC issued a report concluding that the cemetery expansion Project would be a “categorical exclusion” not necessitating an environmental assessment (“EA”). [Filing No. 20-6.] ASC specifically acknowledged that prior proposed construction projects on the site had involved private residential development and resulted in public controversy. [Filing No. 20-6 at 4.] It concluded that the Project “is an appropriate use of the property that is unlikely to garner public controversy given that it is within the existing Crown Hill Cemetery grounds.” [Filing No. 20-6 at 4.]

         On June 19, 2015, an updated wetland survey was prepared for the Property. [Filing No. 20-4.] It concluded that there were “no identified national wetlands in the vicinity of the project area” per USFWS. [Filing No. 20-4 at 3.] Rather, three isolated wetlands-each less than one acre in size-were identified on the Property. [Filing No. 20-4 at 4-7.] The wetland survey concluded that “[e]very effort should be taken to avoid impacts to these aquatic resources.” [Filing No. 20-4 at 8.]

         Despite ASC's conclusion that an EA was not necessary, a draft EA was prepared on June 27, 2015. [Filing No. 20-10; see also Filing No. 20-19 at 1 (email indicating that because “public involvement is an important aspect of this project and should be considered, ” VA officials wanted to pursue an EA instead of a categorical exclusion for the proposed Project).] The EA analyzed two alternatives-the proposed action of the VA purchasing the Property for the Project or a “no action” alternative of not purchasing the Property. [Filing No. 20-10 at 4.] The EA analyzed various considerations between the proposed action and the no action alternative, including environmental consequences, cultural resources, wildlife and habitat, land use, geology, community services, and the cumulative impacts. [Filing No. 20-10 at 5-6 (summary table of impact analysis).] Ultimately, the EA concluded that “no significant impacts would be associated with the Proposed Action.” [Filing No. 20-10 at 11.]

         Copies of the draft EA were placed at the Central Branch of the Indianapolis Public Library, the College Avenue Branch of the Indianapolis Public Library, and at Crown Hill Cemetery. [Filing No. 20-33 at 6.] Additionally, the following Notice of Availability was published in the Indianapolis Star newspaper from July 22, 2015 until August 1, 2015:

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         [Filing No. 20-33 at 6.]

         No comments or requests to extend the public comment period were received following the Notice of Availability of the draft EA. [Filing No. 26 at 6.] On September 8, 2015, the VA and NCA issued the final EA and a Finding of No Significant Impact (“FONSI”). [Filing No. 20-36.] The following Notice of Availability regarding the EA and FONSI was published in the Indianapolis Star newspaper from September 12, 2015 until September 21, 2015:

         (IMAGE OMITTED)

         [Filing ...

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