Town of Ogden Dunes v. United States Dep't of Interior, 2:20-CV-34-TLS-JEM

CourtUnited States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
Writing for the CourtTHERESA L. SPRINGMANN, JUDGE
PartiesTOWN OF OGDEN DUNES, et al., Plaintiffs, v. UNITED STATES OF AMERICA DEPARTMENT OF INTERIOR; DAVID BERNHART, in his official capacity as Secretary of the Department of Interior; NATIONAL PARK SERVICE; DAVID VELA, in his official capacity as Acting Director of the National Park Service; PAUL LABOVITZ, Park Superintendent, Indiana Dunes National Park, in his official capacity; UNITED STATES ARMY CORPS OF ENGINEERS; LIEUTENANT GENERAL TODD T. SEMONITE, Commanding General of the U.S. Army Corps of Engineers, in his official capacity, Defendants.
Docket Number2:20-CV-34-TLS-JEM
Decision Date10 March 2022

TOWN OF OGDEN DUNES, et al., Plaintiffs,
v.

UNITED STATES OF AMERICA DEPARTMENT OF INTERIOR; DAVID BERNHART, in his official capacity as Secretary of the Department of Interior; NATIONAL PARK SERVICE; DAVID VELA, in his official capacity as Acting Director of the National Park Service; PAUL LABOVITZ, Park Superintendent, Indiana Dunes National Park, in his official capacity; UNITED STATES ARMY CORPS OF ENGINEERS; LIEUTENANT GENERAL TODD T. SEMONITE, Commanding General of the U.S. Army Corps of Engineers, in his official capacity, Defendants.

No. 2:20-CV-34-TLS-JEM

United States District Court, N.D. Indiana, Hammond Division

March 10, 2022


OPINION AND ORDER

THERESA L. SPRINGMANN, JUDGE

The Town of Ogden Dunes, Indiana, sits at the south shore of Lake Michigan. After decades of beach erosion, the waters of Lake Michigan have reached the Town's shoreline protection system, which is comprised of sheet piling, stone toe, and revetment. The Town has unsuccessfully sought permits from the Army Corps of Engineers (Corps) and the National Park Service (NPS) to reinforce this system. Concerned by the rising waters and the alleged imminent failure of the shoreline protection system, the Plaintiffs filed this lawsuit, seeking declaratory and injunctive relief to prevent imminent and permanent harm to their shoreline along Lake Michigan. Under the Administrative Procedures Act, the Plaintiffs challenge the Defendants' authority to regulate the proposed reinforcement of the shoreline protection system, allege that

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the Defendants' actions have been arbitrary and capricious, and ask the Court to require the Corps to make a decision on the Town's permit application. Since the lawsuit was filed, the Plaintiffs, by stipulation of the parties, were granted emergency permits to perform the first stage of work to reinforce the shoreline protection system, and the Court has held regular status conferences with the parties regarding the emergency work. This matter is now before the Court on the Defendants' fully briefed Motion to Dismiss [ECF No. 45], which the Court grants in part and denies in part.

PROCEDURAL AND FACTUAL BACKGROUND

The following facts are taken from the Amended Complaint, the documents referenced in the Amended Complaint, and relevant statutes.[1]

A. Establishment of the Indiana Dunes National Park

In 1966, Congress established the Indiana Dunes National Lakeshore (Lakeshore). Pub. L. No. 89-761, 80 Stat. 1309 (1966). In 1976, Congress expanded the Lakeshore's boundaries with a new boundary map titled “Boundary Map, Indiana Dunes National Lakeshore, ” dated September 1976, and bearing the number “626-91007.” Pub. L. No. 94-549, 90 Stat. 2529 (1976); 16 U.S.C. § 460u (1976).[2] The Senate Report describes the effect of the new 1976 Boundary Map as “revis[ing] the boundaries of the Lakeshore from 8, 329.8 acres to 11, 231.8

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acres, including in the new boundary 2, 766.08 acres of additional land and 542 acres of submerged land and water area extending 300 feet into Lake Michigan.” S. Rep. 94-1189, at 6 (1976), reprinted in 1976 U.S.C.C.A.N. 5629, 5630 (emphasis added).

In compliance with the 1976 statute, the Secretary of the Interior published a “detailed description [of] the boundaries of Indiana Dunes National Lakeshore” in the Federal Register titled “Indiana Dunes National Lakeshore, Boundary Description.” 43 Fed.Reg. 2240, 2240-03 (Jan. 16, 1978); see 16 U.S.C. § 460u-2 (1976). Two portions of the 1976 Boundary Description of “Parcel 3” are relevant to the instant motion. See Boundary Description, 43 Fed.Reg. at 2243.

The Defendants cite the portion identifying the northern boundary of the Lakeshore north of Ogden Dunes:

. . . said west line being the county line between Lake County and Porter County, Ind.; thence north along said west line to the northwest corner of said Section 34; thence continuing north along the west line of Section 27, Township 37 North, Range 7 West, Second Principal Meridian and along said west line prolonged northward to a point in Lake Michigan, said point being 300 feet north of the south shore of Lake Michigan; thence easterly parallel to and 300 feet north of the south shore of Lake Michigan to a point 3 600 feet west of the east line of Section 25, Township 37 North, Range 7 West, Second Principal Meridian; thence southerly to the point where the south shore of Lake Michigan meets the west edge of Burns Waterway; thence continuing southerly along said west edge of Burns Waterway to the south line of said Section 25; thence westerly along said south line to the point of beginning

Id. (emphasis added).

The Plaintiffs cite the language immediately following, which “excepts” from the Lakeshore's boundaries “an area within the corporate limits of Ogden Dunes.” Id. The exception describes those corporate limits, including the Town's northern boundary:

thence northerly along said west line of said lane and along the west line of Parcel B in said subdivision and along the west line of an alley that is platted West of Lot 239 in said Ogden Dunes Third Subdivision to a point, said point being the intersection of the last described line and the north line of said Lot 239 extended southwesterly; thence northeasterly along a line, said line described as being 150

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feet northwesterly of and parallel to the north edge of Shore Drive in Ogden Dunes, to the east line of Section 26, Township 37 North, Range 7 West, Second Principal Meridian; thence south along said east line to the point of beginning

Id. (emphasis added).

Both the 1976 and 1992 Boundary Maps of the Lakeshore demarcate the corporate limits of Ogden Dunes as well as the northern boundary of the Lakeshore 300 feet north of the shoreline in Lake Michigan. See Defs.' Ex. 1, ECF No. 46-1; Defs.' Reply Exs. 1, 2, ECF Nos. 64-1, 64-2. In 2019, the Lakeshore became the Indiana Dunes National Park (Park). See Pub. L. No. 116-6, § 115(a)(1), 133 Stat. 13, 232 (2019).

B. The Ogden Dunes Lakefront

The Town of Ogden Dunes is effectively surrounded by the Park. The Town owns approximately 4, 630 feet of lake frontage on Lake Michigan. Am. Compl. ¶ 28, ECF No. 57. A shore protection system (sheet piling, stone toe, and revetment) installed in the 1980s and 1990s, with riparian rights, protects the Town infrastructure, including Town-owned dunes, beach access ways, roads, utilities, and private homes. Id. at ¶¶ 1, 28. The Ogden Dunes shoreline has completely eroded to the extent that the steel wall and stone protection are now totally exposed to Lake Michigan. Id. at ¶ 1.

The primary cause of the erosion is the presence of four man-made structures to the east built in the 1960s, 1970s, and 1980s that extend into Lake Michigan, disrupting the littoral drift of sand and sediment westerly that previously replenished the Ogden Dunes shoreline with approximately 194, 000 cubic yards of sand annually. Id. at ¶¶ 1, 30-33. In 1984, the Corps entered a consent decree to secure funding for beach nourishment mitigation related to the Burns Small Boat Harbor when the sand previously placed by the Corps had eroded. Id. at ¶ 37. A February 2017 study by the Corps confirmed that, dating back to the 1960s, the “Burns

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Waterway Harbor in Portage [has] disrupted sediment littoral flow from Michigan shorelines to . . . the Ogden Dunes Beach.” Id. at ¶ 38.

C. Construction of the Town's Shoreline Protection System

In 1984 through 1986, the Town consulted with the Corps and the Indiana Department of Natural Resources (IDNR) to develop a Shore Protection Policy that included designs for sheet piling, stone toe, and revetment; the plan was approved on February 2, 1987. Id. at ¶ 39. The shore protection system was installed above the ordinary high-water mark (OHWM). Id. From 1984 through 1986, sheet piling that measured approximately 14 to 25 feet in height was placed 19 to 25 feet north of private property, on Town property, along the shoreline in the dunes for approximately 2, 415 of the 4, 700 linear feet of Ogden Dunes that borders Lake Michigan. Id. at ¶ 40. Stone toe protection was placed on approximately 440 linear feet of the sheet piling. Id. From 1994 to 1998, additional sheet piling was placed 19 to 25 feet north of private property, on Town property, along the shoreline and above the OHWM, covering approximately 1, 405 of the 4, 700 linear feet of Ogden Dunes that borders Lake Michigan. Id. at ¶ 41. Stone toe protection was placed on approximately 1175 linear feet of the sheet piling. Id. In 1998, stone revetment was placed 25 feet north of private property, on Town property, along the shoreline, covering approximately 715 of the 4, 700 linear feet of Ogden Dunes that borders Lake Michigan.

To address the sand starvation of the Ogden Dunes shoreline, the Corps issued a permit to the State of Indiana in 1997 to install a steel wall of sheet piling north of 2 through 16 Shore Drive, below the OHWM. Id. at ¶ 42. The NPS joined in support of the restoration of this failed system and requested the use of stone toe protection. Id.

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D. Erosion at the Ogden Dunes Shoreline

In 2000, according to a consent decree, the Corps placed 143, 000 cubic yards of sand on the Portage Lakefront Beach in the Park. Id. at ¶ 44. This sand mobilized into the littoral flow and provided an ample beach north of Ogden Dunes for many years. Id. However, the Corps subsequently failed to comply with the consent decree, causing the Ogden Dunes beach to suffer from sand starvation again. Id. By 2009, the east end of Ogden Dunes was exposed. Id.

The dune and beach north of Ogden Dunes has eroded such that the only protection left from the waters of Lake Michigan is the metal sheet piling installed in the 1980s and 1990s located on Town property. Id. at ¶¶ 1, 36, 43. At least one section of the sheet piling has experienced a partial...

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