INDIANA FOREST ALLIANCE et al v. MCDONALD et al
ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION - The Seventh Circuit has emphasized that "a preliminary injunction is an exercise of a very far-reaching power, never to be indulged in except in a case clearly demanding it." IFA has not met its burden to show that this is such a case. For the reasons detailed herein, the Court DENIES the 17 Motion for Preliminary Injunction. This matter will proceed with summary judgment briefing, although the Court asks the assigned Magistrate Judge to hold a conference with the parties to determine if the parties can reach an agreed resolution. (See Order.) Signed by Judge Jane Magnus-Stinson on 1/13/2017. (GSO)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANA FOREST ALLIANCE,
INDIANA INTERCHURCH CENTER,
VETERANS IN INDUSTRY AND ARTS,
KAPPA DELTA PI, INTERNATIONAL
HONOR SOCIETY IN EDUCATION,
MARY T. BOOKWALTER,
ROBERT A. MCDONALD Secretary of
U.S. DEPARTMENT OF VETERANS
RONALD E. WALTERS Interim Under
Secretary for Memorial Affairs, National
NATIONAL CEMETERY ASSOCIATION,
ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION
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
“Columbaria” are structures with wall niches that house cremated remains. See Oxford English
Dictionary Online, available at http://www.oed.com (last visited January 12, 2017). Crown Hill
National Cemetery is on property owned by the VA within the privately-owned Crown Hill
Cemetery. See National Cemetery Administration, Crown Hill National Cemetery information
page, available at http://www.cem.va.gov/cems/nchp/crownhill.asp (last visited January 12,
2017). Crown Hill National Cemetery is currently “closed to new interments.” Id.
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 http://docs.house.gov/meetings/vr/vr09/20131030/101410/hhrg-113-vr09-wstatepowersg-20131030.pdf (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:
To assist it with doing so, the VA and the NCA engaged ASC Group, Inc. (“ASC”)—a cultural
and environmental consultant. [See, e.g., Filing No. 20-6.] The Court will exclusively refer to the
VA and the NCA unless specific actions or recommendations by ASC are referenced.
[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 treeclearing 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. 206 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:
[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. 2036.] 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:
[Filing No. 20-33 at 3.]
The VA closed on the Property with Crown Hill Cemetery on September 21, 2015. [Filing
No. 20-5 at 1.] On December 7, 2016, IFA sued multiple Defendants, including the VA and the
NCA. [Filing No. 1.] It brings its action pursuant to NEPA, asking this Court to administratively
review the allegedly flawed process Defendants used to prepare the EA and issue the FONSI.3
[Filing No. 1 at 6.]
On December 21, 2016, IFA moved for a preliminary injunction, asking this Court to halt
Defendants’ plan to begin clearing trees on January 15, 2017 for the Project. [Filing No. 17; Filing
No. 18 at 3.] As Defendants point out in opposing the preliminary injunction request, they must
start clearing trees for the Project soon to avoid the roosting period of an endangered bat that begins
on April 1, 2017. [Filing No. 26 at 33.] The Court will now address the merits of IFA’s injunction
IFA asks this Court to enter a preliminary injunction in its favor and order Defendants not
to clear any trees on the Property from the date of the injunction forward. [Filing No. 17; Filing
No. 18.] Defendants object to that request. [Filing No. 26.] The Court will first set forth the scope
of its administrative review and then turn to the merits of the parties’ arguments.
Defendants do not challenge Plaintiffs’ standing to bring this action. Nevertheless, standing to
bring a NEPA challenge “should be examined even where, as here, the defendant does not dispute
it.” Indiana Forest Alliance, Inc. v. U.S. Forest Service, 325 F.3d 851, 855 (7th Cir. 2003). While
an alleged procedural injury is insufficient, allegations that plaintiffs use the property, that
defendants’ decision will diminish their use of the property, and that the alleged failure to permit
them to participate in public review caused them harm is enough to establish Article III standing.
See Ind. Forest, 325 F.3d at 855 (citing Rhodes v. Johnson, 153 F.3d 785, 787 (7th Cir. 1998)). In
their Complaint, Plaintiffs set forth lengthy allegations about how each of them use the Property
and will be affected by the plan to alter it. [Filing No. 1 at 7-15.] They also allege that none of
them had notice of the project before the FONSI was issued. [Filing No. 1 at 7-15.] The Court
finds Plaintiffs’ allegations sufficient to establish their standing at this time.
A. Limited Scope of Court’s Administrative Review
It is well-established that “review in federal court of decisions entrusted to administrative
agencies is deferential and thus very limited in scope.” Howard Young Med. Ctr. Inc. v. Shalala,
207 F.3d 437, 441 (7th Cir. 2000). The Court’s review of agency action under NEPA is governed
by the Administrative Procedures Act (“APA”). Highway J Citizens Grp. v. Mineta, 349 F.3d 938,
952 (7th Cir. 2003). “The APA instructs courts to set aside agency action only if it is ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with the law.’” Id. (quoting 5
U.S.C. § 706(2)(A)). To determine whether an agency action is arbitrary or capricious, the Court
“must consider whether the decision was based on a consideration of the relevant factors and
whether there has been clear error of judgment.” Ind. Forest All., 325 F.3d at 859 (citations
omitted). The Court reviews the administrative record and focuses “primarily on whether the
agency considered the relevant data and offered a satisfactory explanation for its action.” Howard,
207 F.3d at 441. The Court “look[s] only for a rational connection between the facts the agency
found and the decision it made[,]” and it is “not permitted to reweigh the evidence or to substitute
[its] own judgment for that of the administrative agency.” Id.
“In the context of NEPA, arbitrary and capricious review prohibits a court from
substitut[ing] its judgment for that of the agency as to the environmental consequences of its
actions.” Highway J, 349 F.3d at 953; see also Ind. Forest All., 325 F.3d at 859 (“If an agency
considers the proper factors and makes a factual determination on whether the environmental
impacts are significant or not, that decision implicates substantial agency expertise and is entitled
to deference.”). “In fact, the only role for a court in applying the arbitrary and capricious standard
in the NEPA context is to insure that the agency has taken a hard look at environmental
consequences.” Highway J, 349 F.3d at 953 (citations omitted). The hard look inquiry focuses on
the full administrative record at the time of the challenged decision. Id. at 958.
B. Likelihood of Success on the Merits
IFA challenges the process Defendants utilized to prepare the EA and issue a FONSI,
arguing that the process was arbitrary and capricious, an abuse of discretion, and not in accordance
with the law. [Filing No. 21 at 5.] Specifically, IFA contends that Defendants should have
prepared an environmental impact statement (“EIS”), that they failed to adequately notify the
public of the Project, and that they failed to take a hard look at alternatives.4 [Filing No. 21 at 526.] The Court will address IFA’s likelihood of success with regard to each of these arguments in
1) Decision to Prepare an EA rather than an EIS
IFA argues that Defendants should have prepared an EIS because the Project is a major
federal action that will significantly impact the quality of the human environment in the area.
[Filing No. 21 at 16.] It claims that the Project “will clear and transform virtually all of this old
growth Forest into a manicured combination of lawn, pavement, building, and cement” and that
Indianapolis “will lose the only native old growth hardwood forest that remains in the inner city.”
[Filing No. 21 at 17.]
In response, Defendants contend that the decision to prepare an EA rather than an EIS was
not arbitrary or capricious. [Filing No. 26 at 11-15.] They emphasize that the Project involves
less than 15 acres of land, that some tree buffers and forested areas will be left undisturbed, and
that they adequately considered the environmental impacts of the Project. [Filing No. 26 at 12-
IFA also argues that Defendants failed to consider the impact of the Project on wetlands on the
Property and that they purchased the Property before NEPA review was complete, but those
arguments will be addressed in the context of other arguments made by IFA.
Defendants also emphasize that IFA does not allege or present any new, significant
environmental impacts that were not already discussed in the EA. [Filing No. 26 at 13.]
“NEPA established a national policy of protecting the environment as a way of promoting
human health.” Rhodes v. Johnson, 153 F.3d 785, 787 (7th Cir. 1998) (citing 42 U.S.C. § 4321).
It also created the Council on Environmental Quality (“CEQ”), which promulgates regulations
related to NEPA that bind federal agencies. Rhodes, 153 F.3d at 787 (citing 42 U.S.C. § 4342).
The regulations promulgated by the CEQ are entitled to substantial deference. Ind. Forest All.,
325 F.3d at 856 (citing Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 372 (1989)).
The fundamental purpose of NEPA is to ensure that agencies consider the environmental
consequences of their actions before they act. Highway J, 349 F.3d at 958-59. NEPA does not
mandate particular results; it simply prescribes the necessary process. Id. at 953. “If the adverse
environmental effects of the proposed action are adequately identified and evaluated, the agency
is not constrained by NEPA from deciding that other values outweigh the environmental costs.”
One process required under NEPA is that all federal agencies must prepare an EIS for
“major Federal actions significantly affecting the quality of the human environment.” Ind. Forest
All., 325 F.3d at 856 (citing 42 U.S.C. § 4332(2)(C)) (emphasis omitted). But an agency is not
required to prepare an EIS if the proposed action will not significantly affect the environment. Ind.
Forest All., 325 F.3d at 856. The CEQ has promulgated regulations to establish procedures for
whether to prepare an EIS. Id. (citing 42 U.S.C. §§ 4341-4347; 40 C.F.R. §§ 1500.1-1517). If a
proposed action does not require an EIS but it is also not categorically excluded from the EIS
process, the agency must prepare an EA. Ind. Forest All., 325 F.3d at 856. An EA is a “concise
public document . . . that . . . [b]riefly provide[s] sufficient evidence and analysis for determining
whether to prepare an [EIS] or a [FONSI].” 40 C.F.R. § 1508.9(a). The purpose of an EA “is to
determine whether there is enough likelihood of significant environmental consequences to justify
the time and expense of preparing an [EIS].” Ind. Forest All., 325 F.3d at 856.
IFA has not established that Defendants’ decision to prepare an EA rather than an EIS was
arbitrary or capricious. The Project involves the purchase of less than 15 acres of land in a heavilywooded section of Crown Hill Cemetery and aims to expand the VA’s national cemetery by
building columbaria to house the remains of Veterans. An applicable regulation provides that the
VA is typically required to prepare an EA but not necessarily an EIS for the “[a]cquisition of land
from 5 to 50 acres for development of a VA national cemetery.” 38 C.F.R. § 26.6(c)(1)(ii). In
fact, the regulation further provides that development of 20 acres of land or less within an existing
cemetery is typically a “categorical exclusion . . . for which, therefore, neither an [EA] or an [EIS]
is required.” 38 C.F.R. § 26.6(b)(1)(vii). IFA completely ignores this regulation.
IFA also ignores that Defendants prepared an EA despite their environmental consultant’s
conclusion that the Project was a categorical exclusion for which neither an EA nor an EIS was
necessary. [Filing No. 20-6.] In December 2013, an Early Coordination Packet was sent to eleven
state and federal organizations to solicit feedback on the Project. [Filing No. 20-6 at 14-25.] The
environmental consultant analyzed the Project and the feedback and submitted a report to
Defendants on February 11, 2014, concluding that the Project qualified for a categorical exclusion
from the EA or EIS requirements. [Filing No. 20-6.] Nevertheless, Defendants wanted an EA to
be prepared because “public involvement is an important aspect of this project and should be
considered in the report.” [Filing No. 20-19 at 1.] That process took more than one year and,
ultimately, a comprehensive draft EA was completed on June 27, 2015. [Filing No. 20-10.] It
analyzed the effect of the Project on, among other things, the environment; wildlife and habitat;
land use; floodplains and wetlands; and community services. [Filing No. 20-10 at 4-6.] The EA
concluded “that no significant impacts would be associated” with the Project. [Filing No. 20-10
at 11.] An agency is not required to prepare an EIS if the proposed action will not significantly
affect the environment. Ind. Forest All., 325 F.3d at 856.
Ultimately, IFA’s argument rests on its fundamental disagreement with the Defendants’
ultimate conclusion that the Project will not significantly impact the environment. IFA essentially
contends that because it weighs the impact of the factors differently and finds the environmental
impact to be significant, an EIS should have been prepared. [Filing No. 21 at 16-21.] That is not
the standard to be applied. The fundamental purpose of NEPA is to ensure that agencies consider
the environmental consequences of their actions before they act, Highway J, 349 F.3d at 958-59,
but it does not mandate particular results, id. at 953. “If the adverse environmental effects of the
proposed action are adequately identified and evaluated, the agency is not constrained by NEPA
from deciding that other values outweigh the environmental costs.” Id. IFA concedes in its brief
that the EA “acknowledged . . . the undisturbed nature of this forest at least five times, and
acknowledged at least three times the unique nature of the greenspace in which this forest is
located.” [Filing No. 21 at 18.] That is exactly what NEPA requires an agency to do—consider
the environmental consequences of its actions before it acts.
Defendants considered the
environmental consequences identified by IFA—including that some trees on the Property would
be cut down—and made a determination that the environmental impact of the Project was not
significant. This decision “implicates substantial agency expertise and is entitled to deference.”
Ind. Forest All., 325 F.3d at 859.
IFA has not identified a substantial dispute as to the effects of the Project on the
environment, such that Defendants’ decision to proceed with the Project is arbitrary or capricious.
In fact, IFA’s position regarding the environmental impact of the Project is exaggerated. IFA
contends that the Project “will clear and transform virtually all of this old growth Forest into a
manicured combination of lawn, pavement, building, and cement.” [Filing No. 21 at 17.] But the
EA noted that the Project will use a “context sensitive design” to “provide protection, in perpetuity,
of many natural features in the woodland by retaining old growth trees.” [Filing No. 20-10 at 39.]
Moreover, since the FONSI issued, Defendants have met with IFA and other interested parties and
agreed to take additional steps to preserve the old growth trees with which IFA is concerned.
[Filing No. 26 at 15 (citing Filing No. 24-1).] Defendants have agreed to reroute planned roads
and fence lines to further minimize tree cutting and to preserve 70% of the trees on the Property
between 30 and 40 inches in diameter. [Filing No. 26 at 15 (citing Filing No. 24-1).] Although
IFA also argues that the EA fails to properly disclose the Project’s impact on wetlands, [Filing No.
21 at 22-24], an updated wetland survey was completed before the draft EA was issued, [Filing
No. 20-22 at 52], and the draft EA specifically mentioned “three isolated wetlands” on the Property
that would be “avoided, minimized, and/or mitigated for, as needed, based on the projected impacts
determined during the design phase[,]” [Filing No. 20-10 at 6]. The Court cautions IFA not to
make unsupported, exaggerated assertions in future filings.
For these reasons, the Court concludes that IFA has not met its burden to show that it has
some likelihood of success on its argument that Defendants acted arbitrarily or capriciously by
finding that the Project had no significant impact on the environment, such that an EIS was not
2) Public Participation
IFA emphasizes that Defendants only solicited the opinions of governmental agencies,
arguing that they erroneously failed to hold a public meeting before the draft EA was prepared.
[Filing No. 21 at 6-7.] IFA also challenges the sufficiency of the notices Defendants published in
the newspaper, arguing that the notices were intentionally vague because projects previou sly
proposed on the Property had been hotly contested. [Filing No. 21 at 12-15.]
In response, Defendants emphasize that they coordinated with almost a dozen state and
federal agencies to solicit feedback on the Project, made the draft EA available for more than thirty
days before issuing their final decision, and complied with NEPA’s public notice requirements.
[Filing No. 26 at 19.] They emphasize that the applicable CEQ regulations do not set forth specific
notice requirements and that an agency has “significant discretion” in determining how to comply
with NEPA’s public participation regulations. [Filing No. 26 at 20.] Although Defendants
acknowledge that previously private development projects proposed on the Property had been
hotly contested by the public, Defendants reasonably concluded that the cemetery expansion
Project would not generate such controversy “because it did not involve private residential and
business development, but is merely a continued use of the very thing the property is already zoned
for—cemetery use.” [Filing No. 26 at 22.] Defendants also emphasize the public benefit to
Veterans' families and that the Project’s design would create a peaceful, reflective environment.
[Filing No. 26 at 23.]
An agency that prepares an EA “shall involve environmental agencies, applicants, and the
public, to the extent practicable.” 40 C.F.R. § 1501.4; see also 38 C.F.R. § 26.9(a) (VA regulation
stating that during the preparation of environmental documents, the VA “shall include the
participation of environmental agencies, applicants, State and local governments and the public to
the extent practicable and in conformance with CEQ Regulations”). That said, the agency has
“significant discretion in determining” how to comply with NEPA’s public participation
regulations when preparing an EA. Coalition to Protect Cowles Bog Area v. Salazar, 2013 WL
3338491, at *13 (N.D. Ind. 2013) (citing Mich. Against Casinos v. Norton, 433 F.3d 852, 861
(D.C. Cir. 2006)).
Defendants solicited the opinions of almost one dozen state and federal agencies regarding
the cemetery expansion Project. [Filing No. 20-6 at 13-25.] IFA does not argue that they should
have solicited more agency opinions or that their failure to do so was arbitrary or capricious.
Instead, IFA focuses on Defendants’ failure to hold a public meeting before issuing the draft EA
and the allegedly insufficient notices Defendants published in the newspaper regarding the draft
EA and the FONSI. While IFA may have preferred a public meeting to be held, it does not cite
any authority requiring such a meeting before a draft EA is issued for public comment. [Filing
No. 21 at 10-15.] IFA argues, without citation to record evidence, that Defendants did not hold a
public meeting because of public controversy that had stalled previous development projects on
the Property. [Filing No. 21 at 19-21.] But the previous projects involved private residential and
business development, while Defendants’ Project is a continued use of the cemetery that the
Property is zoned for, which Defendants reasonably concluded the public would support because
of the benefits to Veterans and the public. [Filing No. 26 at 22-23.] Defendants’ rationale is
entitled to deference and is not arbitrary or capricious just because IFA disagrees with it.
The VA’s NEPA guidance guide confirms that Defendants had discretion to determine how
to involve the public with the draft EA:
Whether VA prepares a CATEX[ 5], EA, or EIS, each of these processes should
involve some form of public involvement. This could mean posting a CATEX on
a website, inviting the public to comment on an EA, conducting a public meeting,
or publishing a Notice of Availability for an EIS in the Federal Register.
CATEX is the abbreviation for categorical exclusion.
[Filing No. 20-27 at 10 (original emphasis).] The guide also provides that the public should be
given thirty days to comment on a notice of availability of a draft EA. [Filing No. 20-27 at 28.]
To provide notice to the public and solicit feedback, Defendants placed copies of the draft
EA 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,
a Notice of Availability was published in the Indianapolis Star newspaper from July 22, 2015 until
August 1, 2016. [Filing No. 20-33 at 6.] It provided that a draft EA for the “[p]roposed property
acquisition for cemetery expansion and development of Crown Hill National Cemetery in
Indianapolis, Marion County, Indiana” was available. [Filing No. 20-33 at 6.] It also provided for
a 30-day comment period. [Filing No. 20-33 at 6.] Defendants argue that the published Notice of
Availability was insufficient to convey that trees would be cut down for the Project. [Filing No.
20-33 at 6.] While the Notice of Availability of the draft EA did not reference that specific
environmental impact of the Project, IFA points to no requirement that a proposed project must be
described in a certain amount of detail.
Moreover, as IFA has conceded, the Project’s
environmental effect on the trees on the Property was referenced multiple times in the EA. [Filing
No. 21 at 18 (IFA’s brief conceding that the draft EA “acknowledged . . . the undisturbed nature
of this forest at least five times, and acknowledged at least three times the unique nature of the
greenspace in which this forest is located”).] Thus, IFA has not identified any additional evidence
or considerations it would have provided in response to the draft EA had the Notice of Availability
been more specific.
On September 8, 2015, more than thirty days after the Notice of Availability of the draft
EA was published, Defendants adopted the FONSI. [Filing No. 20-36.] A Notice of Availability
regarding the EA and FONSI was then published in the Indianapolis Star newspaper from
September 12, 2015 until September 21, 2015, providing a public comment period until October
13, 2015. [Filing No. 20-33 at 3.] That Notice of Availability specifically identified the Project
and the environmental impact as follows:
[Filing No. 20-33 at 3.] IFA criticizes this Notice of Availability for “fail[ing] to describe the
parcel or differentiate it from the other non-old growth wooded lands adjacent to the Forest and
inside the Crown Hill Cemetery.” [Filing No. 21 at 13.] IFA cites no authority for such a specific
description requirement in the Notice of Availability.
IFA argues that Defendants violated NEPA by closing on the Property before the public
comment period from the second Notice of Availability had closed. [Filing No. 21 at 15-16.] The
VA purchased the Property on September 21, 2015, which was twenty-two days before the public
comment period closed on October 13, 2015. [Filing No. 20-5 at 1.] This was not a NEPA
violation, as Defendants point out, because the applicable regulation merely requires “the
necessary environmental documents [to] be completed” before the purchase. 38 C.F.R. § 26.7(b).
Because the EA and the FONSI were completed before the VA’s purchase of the Property, NEPA
was not violated.
Alternatively, even if Defendants’ purchase of the Property before the expiration of the
thirty-day comment period was a NEPA violation, NEPA violations are subject to harmless error
review. See Miami Nation of Indians of Ind., Inc. v. U.S. Dep’t of the Int., 255 F.3d 342, 351 (7th
Cir. 2001) (holding that the doctrine of harmless error is applicable to review of administrative
decisions) (citing 5 U.S.C. § 706(2)(F)); see also United States v. Coalition for Buzzards Bay, 644
F.3d 26, 37 (1st Cir. 2011) (“NEPA violations are subject to harmless error review”); Webster v.
U.S. Dep’t of Agric., 685 F.3d 411, 432 (4th Cir. 2012) (same). IFA cites no evidence that
additional public comments were received between the purchase and the end of the public
comment period, much less any public comments addressing concerns about the Project that were
not already identified in the EA and FONSI.
For these reasons, the Court concludes that IFA has not met its burden to show that it has
some likelihood of success on the merits of its arguments regarding the adequacy of the public
notice provided or the timing of the VA’s purchase of the Property.
3) No Hard Look at Alternatives
IFA argues that Defendants erred by failing to adequately consider alternatives to the
Project other than just a “no action” alternative. [Filing No. 21 at 21-22.] While IFA concedes
that an EA “generally imposes less stringent requirements on an agency than an EIS, it is clear that
even an EA’s ‘hard look’ must include consideration of reasonable alternatives.” [Filing No. 21
In response, Defendants point out that NEPA does not contain a requirement regarding the
number of alternatives to be considered. [Filing No. 26 at 15-16.] They also emphasize the unique
attributes of the Property, which is already zoned for cemetery use and only one mile north of the
existing National Cemetery. [Filing No. 26 at 17.]
NEPA expressly states that “[n]o specific number of alternatives is required or prescribed”
for an EA. 36 C.F.R. § 220.7(b). Given this clear language, Defendants’ decision to consider only
a no action alternative in addition to the Project was not arbitrary or capricious. [Filing No. 2010.] The EA thoroughly analyzed the impact of the proposed action and the no action alternative.
[Filing No. 20-10 at 5-6.] With regard to the no action alternative, the EA took a hard look and
found as follows:
[Filing No. 20-10 at 19.]
IFA has not met its burden of proving that Defendants’ decision to only analyze a no action
alternative in addition to the proposed Project was arbitrary or capricious. This conclusion is
bolstered by the unique characteristics of the Property—namely, its proximity to an established
national cemetery and the fact it was already zoned for cemetery use. For these reasons, the Court
concludes that IFA has not proven a likelihood of success on the merits on this argument.
C. Irreparable Harm and Adequacy of Remedy at Law
By seeking a preliminary injunction, IFA carries the burden to establish that it has “no
adequate remedy at law and will suffer irreparable harm if a preliminary injunction is denied.”
Stuller, 695 F.3d at 678. IFA does not present any evidence or argument on this point, instead
summarily concluding that because the Project would involve cutting down trees, “[t]his
announced plan alone satisfies the second and third prong of the test for granting” the injunction
request. [Filing No. 21 at 4.]
In response, Defendants contend that IFA has not established irreparable harm because it
has not submitted any evidence that imminent, irreparable harm is likely to occur before the Court
rules on the merits of the case.
[Filing No. 26 at 29.]
While Defendants concede that
environmental injury can by its nature be permanent and not adequately remedied with money,
Defendants emphasize that the Project will not involve cutting down all of the trees on the Property
and that since the FONSI was issued, Defendants have met with IFA and agreed to changes to
preserve 70% of the trees on the Property between 30 and 40 inches in diameter. [ Filing No. 26
at 29-30.] Finally, Defendants point out that NEPA is aimed at making sure decision-makers take
environmental factors into account, but it does not strictly foreclose a project with an
environmental impact. [Filing No. 26 at 30-31.]
“Environmental injury, by its nature, can seldom be adequately remedied by money
damages and is often permanent or at least of long duration, i.e., irreparable.” Michigan v. U.S.
Army Corps of Engineers, 667 F.3d 765, 788 (7th Cir. 2011) (citations omitted). For preliminary
relief to be granted, however, the irreparable harm must also be likely and “be more than a mere
possibility that the harm will come to pass.” Id.
The Court is puzzled by IFA’s assumption that because the Project will result in trees being
cut down, IFA need not present any evidence or develop an argument on the irreparable harm
factor. This is particularly troublesome because the Project’s environmental impact is not nearly
as significant as IFA alleges. The EA stated that the Project will use a “context sensitive design”
to “provide protection, in perpetuity, of many natural features in the woodland by retaining old
growth trees.” [Filing No. 20-10 at 39.] Moreover, Defendants have met with IFA since the
FONSI and further modified the Project to save 70% of the larger trees on the Property.
It is undisputed, however, that some trees on the Property will be cut down for the Project
and that Defendants plan to begin doing so on January 15, 2017. Defendants must start their work
soon to complete it by April 1, 2017, so that they do not interfere with the roosting period of an
endangered bat in the area. Given these undisputed facts and that summary judgment briefing will
not be completed until the end of March 2017, [Filing No. 9 at 3], the Court concludes that without
an injunction, it is likely that IFA will suffer some irreparable harm for which there is not an
adequate remedy at law before the merits of the case are decided.
D. Effect of Findings
The Court only proceeds to the balancing phase of the analysis if a plaintiff satisfies all
requirements of the “threshold phase” for obtaining a preliminary injunction. Girl Scouts, 549
F.3d at 1086. Here, the Court has found that IFA has failed to carry its burden on one of the
threshold requirements for obtaining injunctive relief—namely, that it has some likelihood of
success on the merits of its claims. Thus, the Court “must deny the injunction.” Id. (holding that
if the Court determines that the moving party has failed to demonstrate any one of the threshold
requirements, “it must deny the injunction”) (citing Abbott Labs. v. Mead Johnson & Co., 971 F.2d
6, 19 (7th Cir. 1992) (holding that a plaintiff’s failure to demonstrate one of the threshold elements
“dooms a plaintiff’s case and renders moot any further inquiry”)).
Even if the Court did proceed to the balancing phase of the analysis, injunctive relief still
would be denied because “[t]he district court must also consider the public interest in granting or
denying an injunction.” Stuller, 695 F.3d at 678. IFA completely ignores the public interest
portion of the injunction analysis and apparently assumes that the public has no interest in the
Project proceeding. It is clear from the record, however, that the public—here, at the very least,
families of deceased Veterans—does have an interest in the Project proceeding because it will
create burial space for Veterans who have served our country and the current national cemetery in
Indianapolis is at capacity. While some trees would be cut down to facilitate the Project, IFA
ignores that 70% of the larger trees will remain and that the Project will result in a solemn space
surrounded by nature that the public can enjoy. IFA’s failure to acknowledge any of the pu blic
interests that compete with its position is unacceptable and would result in an adverse finding if
the Court reached the balancing phase of the analysis, given that IFA bears the burden of proving
that the injunction it seeks is necessary.
The Seventh Circuit has emphasized that “a preliminary injunction is an exercise of a very
far-reaching power, never to be indulged in except in a case clearly demanding it.” Girl Scouts,
549 F.3d at 1085. IFA has not met its burden to show that this is such a case. For the reasons
detailed herein, the Court DENIES the Motion for Preliminary Injunction. [Filing No. 17.] This
matter will proceed with summary judgment briefing, although the Court asks the assigned
Magistrate Judge to hold a conference with the parties to determine if the parties can reach an
Electronic Distribution via CM/ECF:
W. Russell Sipes
THE SIPES LAW FIRM
Shelese M. Woods
UNITED STATES ATTORNEY’S OFFICE
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