Photograph by Brian Garvey

This mature tulip poplar on Phil Wisniewski's property is in the proposed I-69 right of way. A Monroe County judge gave INDOT permission to survey and test private property owned by Phil and his wife Karen and other property owners in the county.

Trees have already started falling on some of the land at the heart of an I-69 ruling in Monroe Circuit Court last week.

Republican Monroe Circuit Judge Frances G. Hill on March 22 gave the Indiana Department of Transportation (INDOT) what it asked for: a permanent injunction requiring seven local landowners to let INDOT contractors cut trees and otherwise damage their properties.

INDOT argued it needed to carry out hydraulic and other investigative work to apply for needed state and federal permits and finish designing a Monroe County stretch of I-69.

A state law does permit such investigations by INDOT or its authorized representatives, but the four sets of property owners argued that the state had failed to comply with several conditions set by the law.

For instance, they noted that the statute does not specifically authorize the tree-cutting that INDOT says it needs to do in order to get equipment in to drill bore holes.

Dodging that arrow, INDOT claimed that because the statute specifically permits "leveling," the "leveling" of trees was therefore authorized. Trees would be pushed down or, INDOT allowed, "possibly cut with chain saws."

Although the statute does authorize "any other work necessary to carry out the survey or investigation," the landowners said the Legislature would not have intended to authorize tree cutting. They cited Indiana court rulings that considered cutting a tree to be a "taking" of property. That in turn would obligate the state to go through condemnation proceedings before cutting.

INDOT attacked that argument with a barrage of other court precedents.

Ruling for INDOT, Hill -- a judge known more for her work in family and juvenile law than property law -- decided that INDOT had complied with the statute authorizing such investigations.


Within hours of a county judge clearing the way, INDOT began bulldozing Lisa Swoape's property in Monroe County.

If she happens to be wrong about that, she said, then there was another reason for granting the INDOT request for an injunction: "irreparable harm will result" if it could not get "immediate access" to the land.

That is because the state had agreed to refrain from cutting trees larger than 3 inches in diameter between April 1 and November 15. During that period, the Indiana bat emerges from hibernation, gives birth, mates, then returns to hibernation.

Delaying the construction process for that long, the judge ruled, would subject INDOT and Indiana taxpayers to "substantial breach of contract claims" (an assumption the landowners' lawyer questioned).

Moreover, she said, the citizens of Indiana would be denied "a safer roadway" -- the official justification for I-69.

As part of her court order, Hill committed INDOT to remediating damage, such as filling in boreholes. She did not suggest how felled trees could be remediated, saying only that INDOT will leave the trees they have cut down on the property unless the property owners want them removed.

In a statement issued after the ruling, the Tokarskis said the landowners "were prohibited from testifying about or submitting as evidence photos of damage caused by the bulldozing and core drilling on other properties. The damages that have occurred include deep rutting in the ground, severe erosion, runoff into the karst sinkholes and bore holes left uncovered or improperly covered. In one case no remediation of the site was done for over six months."

Judge Hill estimated the work would take "approximately 3-4 weeks" and issued her order granting INDOT a permanent injunction on March 22 -- just a little over one week before the deadline for cutting the trees.


Trees fell immediately upon INDOT's incursion onto Swoape's land.

Contractors were out the very next day cutting.

The landowners were defending land they had all lived in for more than 30 years. They are Lynne Bergh, Phillip and Karen Wisniewski, Mary Lisa Swoape, Cora Elizabeth Young, and Thomas and Sandra Tokarski. The Tokarskis have been the prime movers behind Citizens for Appropriate Rural Roads, which has fought I-69 for more than 20 years.

Whatever the weight of legal arguments on both sides, it is clear that these landowners' concept of land ownership differs from INDOT's. INDOT assured the court that it was not "significantly interfering with the Defendants' property rights since they retain complete ownership and possession of their respective properties."

But for these landowners, "property" is more than a space on a map.

In his testimony to the court, Tom Tokarski said the woods are "a work of art ... a complex ecosystem," and that work of art "would all be destroyed by the core drilling and the kinds of activities that would go on in this woods."

CARR is now waiting judgment on another legal action: a lawsuit filed in U.S. District Court asking for an injunction ordering INDOT to stop construction of the highway.

Carol Polsgrove can be reached at ccpolsgrove@gmail.com.


For an electronic copy of these defendants' post trial brief, setting forth their arguments in detail, email "Thomas & Sandra Tokarski" at carr@bluemarble.net.