Judge rules against wetland-busting farmers
The respondents face fines plus restoration or creation of new wetlands
MUNCIE — Two East Central Indiana farmers who destroyed alleged wetlands without first obtaining permits have lost important rulings in their long-standing legal battles with the Indiana Department of Environmental Management.
In two separate cases, Chief Environmental Law Judge Mary Davidsen recently upheld IDEM Commissioner’s Orders requiring Edwin Blinn Sr. and Larry Yeley to either restore the wetlands or create new ones elsewhere.
Larry and Carol Yeley, of McCordsville, bulldozed, burned and buried 12 acres of apparent forested wetlands in Delaware County, south of Yorktown, for crop production 16 years ago.
Eight years ago, Edwin Blinn Sr., of Grant County, mechanically cleared more than 20 acres of purported forested wetlands between Upland and Van Buren, also for row crops.
Neither had obtained the necessary permit as part of a state program to promote a net gain in high-quality, isolated wetlands and to assure that mitigation will offset the loss of isolated wetlands.
The judge also upheld a $26,750 civil penalty that IDEM had imposed on Blinn, but she reduced a proposed $14,205 penalty against the Yeleys to $12,500.
For years, the two enforcement cases have remained the subject of costly legal appeals in the state of Indiana’s Office of Environmental Adjudication, awaiting final rulings by Judge Davidsen. The outcomes can be appealed to a state civil court.
The judge’s recent decision regarding Yeley was a “findings of fact, conclusions of law and order” but not a “final order.” That is because a status conference has been scheduled for July 31 to determine whether, and how, the parties might elect to address the applicability of Indiana Senate Enrolled Act 389 to the final determination of Yeley’s challenge.
The Blinn ruling was a final order. His attorneys, Christopher Bayh and Mark J. Crandley, Indianapolis, did not respond to a request for comment.
Blinn’s Republican allies in the state Legislature in 2021 cited his ongoing legal woes with IDEM to help justify a controversial bill (SEA 389) to repeal a state law regulating "isolated wetlands"— those not federally protected. It’s the law that required Blinn and Yeley to obtain permits from IDEM before adversely impacting wetlands.
However, the final version Gov. Eric Holcomb signed into law ultimately preserved the program with some major modifications.
Representatives of IDEM and the Indiana Department of Natural Resources testified against SEA 389, warning that destruction of wetlands, sometimes known as nature’s sponges, would exacerbate flooding throughout the state. Wetlands also serve as rest stops for migratory birds; as habitat for plants and wildlife, including fish and fowl; bird-watching venues; as places to hunt and fish; as nature’s kidneys in trapping agricultural and other waste; and as storm water entry points that recharge groundwater supplies.
Indiana Farm Bureau and the Indiana Builders Association, representing the state’s home builders, testified in favor of the bill, whose 100 or so opponents included the Hoosier Environmental Council, The Nature Conservancy, Indiana Association of Soil and Water Conservation Districts, Ducks Unlimited, Quail Forever, Pheasants Forever, Indiana Native Plant Society, Indiana Wildlife Federation, League of Women Voters, Indiana Lakes Management Society, Indiana Sportsman’s Roundtable, Indiana Forest Alliance and Save the Dunes.
Yeley’s attorney, Frank J. Deveau, Indianapolis, this week told me: “Both farmers lost. It is appealable” but “we are still digesting, so it’s too soon for us to comment. Needless to say, we are very disappointed.”
In addition to disputing whether the Yeley site was a wetland, Deveau also had raised with the judge the issue of hardship for his client, noting Mr. Yeley’s advanced age, the death of Mr. Yeley’s wife, and the financial impact of compliance.
Meanwhile, Blinn “has a good-faith belief that the site was not a wetland, has made long-time contributions to environmental stewardship, Hoosier farming, and the community, and has stated the potential for economic distress,” the judge wrote. “However, the court is denied equitable powers and regulatory authority to consider these matters into its decision.”
In an interview in 2021, Blinn told me he was prepared to fight to the Indiana Supreme Court, if necessary, to expose the state's "Gestapo" tactics, even though he could have bought another farm with all the money he's already spent on lawyers. He feels as though IDEM is treating his alleged wetland as though it were as important as Hoosier author Gene Stratton-Porter's Limberlost Swamp.
At the time I interviewed him, Blinn still had a highly visible semi-trailer parked near his home farm — along Ind. 18 between Interstate 69 and the city of Marion — plastered with a banner reading, "Trump 2020, From the Deplorables." I recall from the last time I drove past it that the banner now reads, “Trump 2024.”
To identify a site as a wetland requires confirmation of at least two of the three diagnostic factors. The three factor are prevalence of hydrophytic or water-loving vegetation; predominance of hydric soil (soils that are impacted by ground or surface water to support hydrophytic vegetation), and wetland hydrology (ground or surface water that inundates or saturates soils sufficiently to support a prevalence of hydrophytic vegetation).
Based on “substantial evidence,” the Blinn site had sufficient hydric soils and hydrology to meet the definition of a wetland, the judge ruled, citing facts including the water table, saturation, inundation visible on aerial imagery, oxidized rhizospheres on living roots, and poorly drained Pewamo soil, a type predominant in Indiana’s wetlands.
IDEM failed to meet its burden of proving that the site had the required wetland vegetation. The inspection had been conducted in winter, when vegetation species and volumes were less than during full growing season, and IDEM correctly did not examine piles of tree debris, as the original location of the downed trees could not be traced to the site with sufficient certainty.
At the Yeley site, JFNew, a consultant hired by the Yeleys, concluded in 2008 that their property “contained approximately 11.82 acres of forested or formerly forested wetlands.” The conclusion was reached by a team that included “a botanist, certified professional soil scientist, and senior wetland delineator,” the judge noted in her ruling.
To contest JFNew, Yeley had hired another consultant, but that was in 2018, “ten years after the site had been mechanically cleared by Respondent Yeley and delineation was complete,” the judge went on. The second consultant’s review “was therefore limited by his having to rely upon after-the-fact documentation and a disturbed site.” The second review also “was significantly impeded by Respondent Yeley’s site activity in 2008 and prior, and by Respondent Yeley’s subsequent site use for crops.”
The second consultant asserted that any former wetlands on the site were not as big as IDEM had determined. Another one of that consultant’s arguments was that the site “seemed to become drier over time, not wetter as one would assume” given the removal of trees.
“Usually in a forested wetland system, you take the trees down, the watering system increases, and this is due because — this happens because wetland trees, like any other tree, take up a lot of water,” the consultant testified, adding that when a forest wetland is impacted, there is usually more water, not less, and more wetland plants.
During its inspection of the site (the dry season of July 2008), JFNew had found water standing in holes where trees had been removed. That team also had observed hydrophytic plants and solids along with wetland hydrology — three points where the soil was saturated.
In an 18-page ruling, the judge, an appointee of the governor, cited “substantial evidence” that IDEM had met its burden of proving that Yeley had “caused an unpermitted discharge of dredged or fill material into a wetland” in violation of Indiana law — and that the agency had properly required Yeley to achieve compliance by either removing the dredged or filled material through restoration of the site or by obtaining a permit for off-site mitigation.
The “substantial evidence” standard requires a lower burden of proof than the preponderance test, yet more than the scintilla of the evidence test.
The judge also cited “substantial evidence” in upholding IDEM’S enforcement case against Blinn.
“IDEM is pleased that the judge upheld the Commissioner’s Order,” IDEM spokesman Barry Sneed said in an email. “The Office of Environmental Adjudication provides citizens an opportunity to request an independent, impartial review of a decision that IDEM has made. An environmental law judge reviews the decision to determine if IDEM made the correct decisions according to Indiana statutes and rules.”
Further reading:
Click here to find the Blinn, aka Bankview Farm, decision, which will be available soon.
To obtain a copy of the Yeley ruling, which won’t be posted online, contact the Office of Environmental Adjudication here
Previously, in Greater Muncie:
No end in site to state vs. farmers wetland dispute
From The Star Press
State, farmer still battling over wetland destruction
Seth,
Preserving wetlands is a noble and necessary effort to naturally remove environmental imbalances introduced into the soil. Legislation that both protects the environment and preserves the rights of the property owners must be fair. However, "fair" is in the minds of the politicians in control at the time such legislation is designed and enacted. I think (not sure about this) there is some property tax relief or rebate or similar incentive for property owners who designate a portion of their property as wetlands??? If so, all the more reason to ensure the law is fair and not provide another tax dodge scheme.
Thanks for banging the keys and giving us a detailed account of this issue, presenting both sides of this seemingly simple yet complicated issue. Your journalistic efforts and style of reporting are sorely missed in this area...everywhere actually. Please keep enlightening us about such issues that otherwise would be unknown.