Tag: jim olson

Jim Olson & Dave Mahan on Natural Resources Stewardship

 

 

A Conversation About Climate and Conservation

In this video produced by Joe VanderMeulen for NatureChange, Phil Ellis, Executive Director of the Grand Traverse Regional Community Foundation, moderates as two of Northern Michigan’s most respected and experienced environmental leaders discuss the challenges and choices facing our region.

FLOW’s own Jim Olson and Dr. Dave Mahan, former Associate Director of the Au Sable Institute of Environmental Studies, offer their insight on this important issue. A must watch.

Click here to see more like this.

 

 

The Great Lakes are no place for fish farming, but there might be one nearby

The waters of the Great Lakes are held in trust by the state as a shared public commons for the benefit of citizens for navigation, boating, fishing, health and sustenance. The courts of all eight Great Lakes states have recognized this principle, which means the states must manage these waters as a trustee for the benefit of all citizens to prevent interference with these public purposes – a duty of stewardship.

Net-pen fish-farming in the Great Lakes poses a major interference with existing protected riparian and public uses of these hallowed waters – landowners, fishermen, boaters, tourists, and citizens. Private fish farming would displace and interfere with the public trust in these waters.

 

Click here to read Jim Olson’s full guest commentary on bridgemi.com!

 

Nestlé resistance in the Detroit Metro Times

Nestlé has been aiming to pump more water out of Michigan.  Near Evart, the company is attempting to expand and greatly increase the withdrawal amount to 400 gallons per minute, which equates to 576,000 gallons per day.Michael Jackman, from the Detroit Metro Times, writes that there may be “rough water ahead” for Nestlé. Many people are unhappy with their actions. Read more here.

 

Press Statement: Today’s Approval of the Waukesha Diversion Application

On behalf of FLOW (For Love of Water), Jim Olson released the following statement regarding today’s decision on the Waukesha Diversion Application.

“For better or worse, the Compact governors’ decision approving Waukesha’s diversion is done. There were a number of loose provisions that pointed to a bad precedent where a community’s water system doesn’t even straddle the Basin divide. It will all depend on the details, the amendments and conditions made part of the decision.  This remains a serious matter and as we have done so far, FLOW will dig in and evaluate these conditions and make sure they are strictly interpreted and enforced.  When it comes to the Great Lakes and the duties of government to protect their integrity, there is no room for mistakes or relaxation.  It would have been better for the public to be able to see and comment on these amendments and conditions.  For the moment, all we can do is review them after the fact. The key to this and future decisions is to make sure they meet the standards for exceptions like Waukesha’s request as a community in a straddling county.  These standards are the beacons by which the Great Lakes will be protected from diversions and exports. They must burn bright and respected.  The public trust duty of the governors to protect the integrity of these waters from one generation to the next is first and foremost.”

There is No Legal Authority for Commercial Fish Farming in Great Lakes Waters

The Great Lakes are not and cannot be a “gold mine” for any private person or corporation. They are owned by the State in public trust for each citizen. The Supreme Courts of Michigan, the U.S. and other states have ruled for more than 120 years that public trust bottomlands and waters cannot be transferred or occupied or subordinated for primarily private gain. Not the DEQ, not private interests, not the Governor, not the legislature, not even the courts can violate this principle. Moreover, given the environmental effects and the fact that feasible and prudent on-land alternatives exist, fish farming the Great Lakes would violate basic environmental law standards. So it’s time for the fish farming industry to stop promising “gold mines” for the Great Lakes.  They are not legal, they cannot be approved.  Land is for farms, the Great Lakes are for navigation, fishing, swimming, drinking water, sustenance, and recreation, aquatic life, and our own quality of life. There is no authority for private development of aquaculture CAFOs or any water farms in the Great Lakes, so the debate over environmental impacts is a waste of time. Moreover, because there are on-land alternatives, they must be done or shown to be totally unfeasible and not prudent. If anything, on-land fish farming is feasible and prudent.

Public Comments to MI DNR, DEQ, and DARD on Aquaculture in the Great Lakes and Tributaries of Michigan

Aquaculture –often in the form of networks of enclosed pens that exclusively occupy a large area of surface water and underlying bottomlands—raises substantial legal, environmental, aquatic resource, and water use impact issues. Specifically, the use of public waters and bottomlands for the occupancy and operation of concentrated fish production raises a number of grave concerns, including: (1) exclusion of public access and other uses, (2) likely impacts from wastes and nutrient loading, (3) escaped fish pumped with antibiotics, and (4) interference with rights of boating, fishing, swimming, and other forms of paramount public uses that are protected by the public trust doctrine.

By definition concentrated aquaculture or fish farms that occupy surface and deeper water areas and occupy or are anchored or supported by bottomlands of the Great Lakes are subject to the common law public trust doctrine. Accordingly, any decision involving enclosed, pen concentrated fish-farming operations must be framed through the standards set forth under the public trust doctrine. This comment outlines the public trust framework critical to any state decision involving aquaculture in the Great Lakes and connected navigable waterways. Read the full comments here.

FLOW’s Pioneering Work on Right to Water, Commons and Public Trust Join the Mainstream

The launch of FLOW’s new website comes at the same time FLOW’s work (beginning back in 2009 when Terry Swier, President of Michigan Citizens for Water Conservation, my brother Eric Olson, Ted Curran, and a few others, saw the need to educate leaders and the public on the overarching  principle known as the public trust doctrine)  has been recognized by the most highly regarded body in the Great Lakes Basin—the International Joint Commission.  As part of a 15-year review of its efforts to protect the waters of the Great Lakes Basin, in January of this year, the IJC issued a landmark recommendation that the states, provinces, and countries implement the public trust framework as a “backdrop principle” to safeguard the integrity of the Great Lakes in the 21st century.   The launch also comes at the end of the second year of teaching the new water and sustainability course at Northwestern Michigan College’s Water Studies Institute.   This past week, the students heard a wrap-up lecture on the unifying principle of the course and water policy in the future—the framework for problem solving under the commons and public trust doctrine in water.[1]

What does this mean?  It means that FLOW’s vision, work,  and our supporters are at the forefront of efforts to educate and help leaders, citizens, businesses, and our communities address the systemic threats that face the Great Lakes region – and beyond—including climate change and water levels, invasive species, algal blooms, diversions and excessive and wasteful losses of water, exports, intensive aquaculture farming on the surface of public trust waters, and crude oil transport in, over, or near the Great Lakes. As highlighted by the IJC in a recent public opinion poll, fully eighty-five percent of citizens in the Basin put their concern for the Great Lakes at the top of their list – that’s 34 million out of the 40 million people who live in the Basin.  But the problem is we need to understand what we can do about the systemic threats to the Basin, and what principles will lead us there.  At FLOW we think the most fundamental principle is the public trust doctrine.

What is the public trust doctrine?

The public trust doctrine (as recounted by Traverse Magazine’s editor Jeff Smith in an article on FLOW’s pioneering work when he created the by-line name for this BLOG – H2Olson) is a background principle connected to the Great Lakes and other bodies of water.  It holds that these waters are held by the state as trustee and must be managed and protected for the benefit of the legal beneficiaries of this public trust – the 40 million citizens in the Great Lakes Basin.  It imposes a legally enforceable duty on government and leaders to affirmatively and perpetually take action to prevent harm or impairment to these waters, their ecosystem and public uses that depend on them – navigation, fishing, boating, swimming, drinking water, and sustenance.  It prohibits any person or entity – public or private – to enclose or transfer these waters for a primarily private purpose – these waters are held for the public. It means no public or private person can measurably impair the integrity of the quality and quantity of these waters from one generation to the next.  It means all of us share, collectively and individually, a right to water as beneficiaries of this trust.

Why public trust principles?

Before the victorious court decision curtailing Nestlé’s bottled water exports from Michigan, the common law prohibited diversions or exports that diminished the flow or level of a lake or stream.—this means the very heart or integrity of a stream or lake cannot be impaired.   After the decision, this “non-diminishment” standard was weakened in favor of a “substantial harm” test that arguably would allow water exports, diversions and losses from the waters of the Great Lakes.  In effect, the court left the door open for foreign and domestic interests outside the Basin to claim the right to divert or use large quantities of water, and if challenged, potentially seek damages or other relief in private tribunals under the auspices of NAFTA or other trade agreements – possibly even the recent TPP.  Moreover, the Great Lakes Compact diversion ban left the door open for water prospectors to package raw water in any sized container (not just bottles) and ship water out of the Basin as a “product.”  The Compact also exempted diversions for public water supplies in communities that straddle the Basin, like the ongoing controversy over Waukesha, Wisconsin’s request for water  that looks more like a plan to grow communities outside the basin that meet current public need for water.   These and other events have sounded the horn for caution and action.

FLOW’s public trust vision converges with the human shift toward saving and promoting the “common good.”

In 2011, FLOW convened a conference to address systemic threats to the Great Lakes that fall outside water laws from the 20th century.  In 2012, FLOW with the Council of Canadians presented an in-depth study to the International Joint Commission, a binational body charged under a 1909 treaty to protect the Great Lakes.  The study urged the IJC to adopt a new overarching principle based on the ancient pubic trust doctrine:  This doctrine charges government, as trustee for citizen-beneficiaries, with a perpetual duty to prevent impairment or private control of water, as a commons, from one generation to the next.

From 2013 through 2015, FLOW submitted additional reports with the IJC and other governments to demonstrate how this this game-changing principle would address threats to water as a commons and human right. FLOW launched public presentations, a new water policy course with Northwestern Michigan College, and recommended solutions to address algal blooms, extreme water levels, climate change, invasive species, and recent scientific and policy reports that called for removal of oil in a pipeline in the Straits of Mackinac.

Since 2011, we’ve witnessed massive algal blooms shut down Toledo and Monroe’s water supplies and destroy fishing in Lake Huron.  We’ve seen law and high swings in water levels exacerbated by climate change effects.  We’ve seen the shut-offs of water  that services thousands of  Detroit residents and families, the Flint water crisis and exposure of thousands of innocent children and people to lead poisoning.   We see continuing in action on the time-bomb of shipping crude oil in or near the Straits or other waters of the Basin.  We see efforts to legalize private occupancy of acres of public waters and bottomlands of the Great Lakes to operate concentrated fish farms, when farming belongs on land and the surface of the Great Lakes belongs to the public.

In summer 2015, FLOW submitted a report on the IJC’s 15-year review of protecting the Great Lakes.  FLOW demonstrated how public trust principles would act as a backstop against known and unknown threats to the Great Lakes.  In January, 2016, FLOW’s work took a giant step forward.  As noted at the outset, the IJC issued a landmark recommendation that the states, provinces, and countries implement the public trust framework as a “backdrop principle” to safeguard the integrity of the Great Lakes!

Recently, in his encyclical letter on climate and our earth’s predicament, Pope Francis captured the awareness and reality of a world faced with massive loss of water, soil, and social and economic injustice.  He pointed out two ethical principles: Protect the common good and do so from one generation to the next.   All other endeavor, including economic, must honor and respect these principles.

What we are excited about at FLOW is, we find ourselves lockstep with the solutions to crises and threats to water here and elsewhere because the public trust doctrine in water brings legal principle to ethical principles to  promote the common good.

[1] For those readers who want to gain a general understanding of FLOW’s work and the commons and public trust framework,  watch the wrap-up lecture and discussion at the NMC’s WSI 230 water and sustainability class. https://ensemble.nmc.edu/Watch/Xa45Sfy9

 

Some Thoughts for the New Year: Common Home and Common Principles – Living and Working for the Common Good

 

Jim Olson FLOW Founder

 

 

By Jim Olson

President, FLOW For Love of Water, Traverse City

Attorney, Olson, Bzdok & Howard, P.C., Traverse City

 

 

 

 

When I look back over the past year, I can’t help but feel hope in the common goodness of people and communities.

I say this not without heart felt and serious concern about events in the world that point in the opposite direction – despair: increasing violence from guns, war, and sweeping droughts and floods, causing death and dislocation of millions of people and children, global warming and the push-back from unprecedented storms and extreme weather that compound drought, floods, landslides, which in turn destabilize countries like Syria fomenting conflict and conditions for ISIS. To paraphrase Circle of Blue senior journalist Keith Schneider, “The earth is angry and she’s fighting back.”

Closer to home, Detroit water shut-offs continue despite the devastating impact on the poor who can’t afford to pay a normal water bill, let alone the $100 a month or more claimed by the Detroit Water Board. State leaders finally stop denying the Flint water-crisis more than a year after residents demanded help, that its children and residents were exposed to high levels of lead from the city’s public water system. The problem is more endemic than Detroit or Flint, since both crises grew out of the unbridled power of Governor Snyder’s emergency manager law to usurp the power of city assets and revenues to pay debts regardless of the impacts to citizens. Flint’s emergency manager thought only of economic expediency in turning off water supplied from Detroit, and tapping into the filthy, polluted Flint River. Then there is the continual threat from the flow of oil in the aging, nearly 63-year old Line 5 pipeline under the Straits; the harm from a release or leak would be so catastrophic, the risk is unacceptable to everyone; yet the flow of oil continues without immediate temporary measures while state officials continue to study it as if it was an “issue,” and not the clear and imminent endangerment of the Great Lakes and the Straits of Mackinac – the fact is there is enough capacity within the pipeline system in the Great Lakes without Line 5 endangering the Straits.

So why the hope? Other events have happened this past year that point to a new way of understanding and, perhaps, solving many of the threats that we face in the world and our communities.

First, Pope Francis issued his encyclical on climate change and the environment, connecting the reality of our excessive consumptive materialism, global inequality, poverty, ecological and community devastation, and violence that follows. He carefully documented that our way of seeing and doing, our post-modern god of the law of free markets and legally justified greed, our fragmented attempts at dishing out money to help the poor are not working. He says this because we are living a material, market place illusion, and not in harmony with the reality that the earth is our “common home,” and that if we do not share its gifts and respect its inherent natural limits, earth’s water, weather, soil, and the biological diversity on which all life depends will continue to worsen to even greater extremes. He points to a new paradigm, a framework in which we work and live with the understanding that a body of water, whether ocean, Grand Traverse Bay, or Lake Chad, are a commons, part of the gift of earth as commons to all. If we do this, not only with water, but the ridge lines and forests, the beauty and land that are home to our relationships, our cities, the neighborhoods within our towns, the soils beneath our feet, the air we breathe, then we will begin to reshape our life around truth and the given limits of nature, and this will guide our living, our way of life, or economy, full and rich with newly directed creative and sustainable opportunities and entrepreneur ship.

Second, amidst a world of conflicts, from Syria to the Ukraine, from our own cities, to Nigeria, Sudan, and Afghanistan, and in the aftermath of the mass murders from extreme terrorists in Parrs, the nations of the world cooperated: leaders of large and small, developed and developing, or undeveloped countries, recognized the responsibility to each other, agreed to something, the world temperature will not rise more 2 degrees, and maybe less. While it is not law yet, if taken implemented, it will help stave off global calamity greater than two world wars last century, by reducing the irreparable damage we face from climate change and global warming. There is hope in the agreement that we stop denying and see the mounting harm and set a goal that through hard-work and common sacrifice offers a way out of an unthinkable alternative for people everywhere.

Third, we witnessed the bridging of differences by our Supreme Court in precedent setting cases that demand human dignity for marriage between two people, human rights to housing and water for the poor without access, as wells as the genuine search for a common goal to address wasteful and harmful water rights in the middle of the historical California droughts.

Fourth, our political debate heating up even before the 2016 presidential election has pointed to something more than the old, increasingly polarized beliefs in market economy, through money at wars and problems, rather than considering the root of the problem might be the way we are looking at them. Regardless of my own or others’ political persuasion, there is a fresh voice in Bernie Sanders, laying out the case for a community based on sharing of wealth, taking care of neighbors, and our neighborhood, what Pope Francis calls our “common home,” and at the same time helping with services to the poor, respecting and honoring diversity, and encouraging new business innovation. We have been trapped in this country in a red and blue, right and left, straight-jacket of false ideology, rather than identifying those things that are essential to every one of us and providing for them as principle of our country—the common good.

Fifth, then Michael Moore comes out with his latest film Where to Invade Next? Good God, here we have the message that we here in the USA had the idea, come up with the ideas, of common good, yet go in the opposite direction of individualized competition based on a law of the jungle called free markets. Everything is about profit and money and bottom line. The world is not a corporation, it is a commons in which corporations organizations are simply a means, not an end.

Do we really have a choice? Our common home and communities are simultaneously local and global. It’s not just act locally, think globally, or act globally, think locally. It’s all of this and more. If we don’t act, for example, on climate change, or understand that climate change is not just an energy issue but about water and food, if we don’t move toward a renewable economy within a few years, small island countries will literally disappear, rainforests and biodiversity will disappear, coastal cities and other areas will increasingly flood and fail from even more extreme storm events or the day-to-day failure to change, adapt and embrace resilient cooperation—the common good. All one has to do is read through “4 Degrees Turn Down the Heat: Climate Extremes, Regional Impacts, and the Case for Resilience,” a report published by renown scientists and even sponsored by the more conservative World Bank. The picture is not pretty, and it would it is ignorant, even immoral, at this time in history not to act, even out of self-interest, for this common good.

So I end this year and start the next with hope. At FLOW, the Great Lakes and Water Policy Center, here in Traverse City, and other organizations throughout the region, we have chosen as a mission and goal to protect the waters of the Great Lakes basin as a commons with principles, known as the public trust doctrine, that require government as trustee and people as beneficiaries, to work together to respect and protect water and community that depend on it from impairment. Private control of public waters and other public commons has always been prohibited; this is because some things essential to all of us are common to all of us. If we don’t protect the commons, we undermine the air, water, community and neighborhoods where we live. To work and live toward the common good is to work for the commons and at the same time work for yourself, family and friends. To not work for the common good, is to continue the long, slow, or perhaps not so slow, disintegration that leads to destruction of the earth, water, air, community, people, and leads to a world violent and unsafe.

It is hopeful and reassuring to see positive events pointing toward this new way of seeing, understanding and doing – living and working for the protection and sustainability of our common home and the common good. They are one and the same. Here’s to another hopeful New Year.

 

 

 

Court Confirms 45 Miles of Lake Michigan Shoreline Owned by State Under Public Trust

Court Confirms Indiana’s 45-Mile Shoreline on Lake Michigan Owned and Held by State for Public Recreation Under Public Trust Doctrine

By Jim Olson[1]

 

Another state court confirms that the 3,200 miles of Great Lakes shoreline are owned by states in public trust for citizens to enjoy for walking, swimming, sunbathing and similar beach and water related activities on public trust lands below the Ordinary High Water Mark (“OHWM”).[2]

When Indiana was carved out of the Northwest Territories and joined the United States in 1816, the State took title in trust for all waters of Lake Michigan and all land below the OHWM along the state’s 45-mile shoreline.Map of Indiana Shoreline with Counties

In 2012, the lakefront owners on Lake Michigan  in Long Beach, Indiana, filed a lawsuit against the town of Long Beach, claiming they owned all of the land to the waters’ edge. Lakefront owners asked the trial court judge to prohibit any interference with their private property by town residents and the city who used the beach as public for walking, sunbathing, swimming, and picnicking  since the town was incorporated. A group of local residents and homeowners organized into the Long Beach Community Alliance (“LBCA”),  and intervened in the dispute to defend their public right of access for walking and recreation over the wide strip of white sugar sand between the shoreline and the retaining walls and yards of the lakefront owners. The Alliance for the Great Lakes (“AGA”) headquartered in nearby Chicago, and Save the Dunes (“STD”), a nonprofit organization dedicated to protecting the dunes on Indiana’s shoreline, also intervened to protect the interests of their members who were citizens of Indiana and used and enjoyed the Lake Michigan shore.

In late December 2013, the trial judge ruled that the lakefront landowners could not interfere with the town or residents’ efforts to pass ordinances recognizing the land below the OHWM belonged to the state and was held in public trust for residents and citizens of Indiana.[3]

Not satisfied, the lakefront owners appealed to the Indiana Court of Appeals. In 2014, the appellate court recognized the trial judge’s ruling below, but remanded the matter back to the trial court for a more comprehensive decision on the State’s title and the public trust in the shoreline.[4] The court reasoned that the State of Indiana had not been made a party in the local suit, a prerequisite for a court ruling on a landownership and pubic trust shoreline dispute.

Another lakefront owner pressed forward with a related new lawsuit, again claiming ownership to the waters’ edge, based on their deeds that, they argued, gave them title to the waters’ edge, even if that meant their title cut off the rights of citizens of Indiana to the shoreline below the OHWM. This time the state was named a defendant, and the LBCA, AGA, and STD once more intervened.

It’s common knowledge that Lake Michigan water levels have fluctuated about 6 feet between highs and lows since the federal government started keeping records in 1860. In the late 1980s, the water levels and wave action threatened the lakefront owners’ retaining walls and homes. In 2013, the year the first court ruling came down, the water levels were so low, the distance from the waters’ edge to the lakefront owners’ retaining walls was wider than the length of a football field.

Longbeach, Ind Shoreline photo

While the knowledge may not be so common for many citizens, the U.S. Supreme Court and the courts of states abutting the Great Lakes have routinely ruled that each state took title to the waters and lands of the Great Lakes up to the OHWM. In 1892, the U.S. Supreme Court ruled that all of the Great Lakes’ waters and bottomlands to this ordinary high water mark are owned by the states in trust for all citizens.[5]  The Illinois legislature deeded one square mile of Lake Michigan on Chicago’s waterfront to the Illinois Central Railroad company for an industrial complex. However, the Supreme Court voided the deed, and found that the public trust in these lands and waters is inviolate and could not be sold off, alienated, or even legislated away.

Despite this history, lakefront owners the Gundersons, pushed for exclusive ownership of the beach to exclude residents from the beach between their homes and the waters’ edge.  The State of Indiana Department of Natural Resources, LBCA, AGA, and STD defended public ownership and the residents and citizens’ right to use the public trust shoreline for walking, swimming, sunbathing, and similar water-related recreational activities.

On July 24,  2015, LaPorte County Judge Richard Stalbrink wrote a near text-book-perfect decision on the public trust doctrine and ruled against the lakefront owners in favor of the state, LBCA, AGA, and STD,  confirming that the beach below the ordinary high water mark to the waters’ edge belongs to the state and is subject to a paramount public trust that cannot be interfered with or impaired by lakefront owners.[6]

First, Judge Stalbrink followed the Supreme Court cases holding that the state obtained title to the waters and bottomlands to the OHWM when it joined the Union in 1816. Second, Stalbrink ruled that this beach land below the OHWM was held in trust for public walking, swimming, fishing access, and other public recreational uses. Third, the Court confirmed that Indiana’s definition of the OHWM was proper, given that the definition takes into account the physical characteristics that define a permanent shoreline as reasonable evidence of the public portion of the shoreline.  Finally, Judge Stalbrink recognized that because water levels of Lake Michigan fluctuate, the width of the beach is subject to change, but that there is always a paramount right of the public to access the beach for proper public trust recreational activities.

As Judge Stalbrink observed near the end of his decision, ”Private lot owners cannot impair the public’s right to use the beach below the OHWM for these protected purposes. To hold otherwise would invite the creation of a bach landscape dotted with small, private, fenced and fortified compounds designed to deny the public from enjoying Indiana’s limited access to one of the greatest natural resources in this State.”[7]

 

(Author’s End Note: See rulings by the Michigan Supreme Court in 2005. Glass v Goeckel, 473 Mich 667, 703 N.W. 2d. 58 (2005), Ohio Supreme Court in Merrill v Ohio Department of Natural Resources, 130 Ohio St. 3d 30, (2011) (on remand before Court of Common Pleas, Lake County, Ohio for factual determination of OHWM); the Gunderson decision upholding public trust in Long Beach should control the decision in the companion case, LBLHA, LLC v Town of Long Beach et al., supra note 2, on remand to the Laporte County trial court).

[1]President and Founder, Flow for Love of Water.

[2]See Melissa Scanlan, Blue Print for a Great Lakes Trail, Vermont Law School Research Paper No. 14-14 (2014).  (Professor Scanlan proposes walking trail within public trust lands and without interference with riparian use based on public trust doctrine in the Great Lakes); James Olson, All Aboard: Navigating the Course for Universal Adoption of the Public Trust Doctrine, 15 Vt. J. E. L. 135 (2014) (Author documents the application of the public trust doctrine in all eight Great Lakes states and two provinces of Canada).

[3]LBLHA, LLC  v Town of Long Beach et al., Cause No. 46C01-1212-PL-1941. (The author, Jim Olson, discloses that he was one of the attorneys, along with Kate Redman, Olson, Bzdok & Howard, P.C., Traverse City, Michigan, in this case for the Long Beach Community Alliance in favor of public trust in shoreline).

[4]LBLHA, LLC v Town of Long Beach et al., 28 N.E. 3d. 1077 (2014). The Indiana Court of Appeals remanded to the trial court to add the State of Indiana as a party; this case will not proceed in same fashion as the Gunderson case discussed in this paper, which was decided by the same LaPorte County trial court.

[5]Illinois v Illinois Central Railroad, 146 US 387 (1892).

[6]Gunderson v State et al., LaPorte Superior Court 2, Cause No. 46D02-1404-PL-606, Decision, July 24, 2015, 22 pps. (Judge Stalbrink, Richard, Jr.); Indiana Law Blog, Ind. Decisions, July 28, 2015 http://indianalawblog.com/archives/2015’07/ind_decisions_m_709.html.; see also U.S. v Carstens, 982 F Supp 874, 878 (N.D. Ind. 2013).

[7]Id., Indiana Law Blog, at p. 3.