Indiana DNR latest organization to take City of New Albany to court

NEW ALBANY, Ind. (WAVE) – The Indiana Department of Natural Resources (DNR) is the latest organization taking the city to court.

On Thursday, DNR told WAVE it had filed both a motion for a temporary restraining order (TRO) and a complaint for preliminary and permanent injunction. Both essentially act as orders to stop and reverse the City of New Albany’s actions placement of a rock fill at the base of the Providence Mill Dam, actions which the state has said were illegal.

On Aug. 4, New Albany Mayor Jeff Gahan put pen to paper, issuing an executive order declaring a state of emergency at the Providence Mill Dam and authorizing work to be done at the dam.

The order was written and signed two days after the mayor announced to the media that the “emergency maintenance” was already happening. In that Friday press release, the mayor said the maintenance was “another example of (the city’s) commitment to safe recreation.”

When we asked DNR for comment on the project last Friday, we were told the city did not have a permit for the work and they were working to gather more information. Soon after, DNR stepped in. Communications Director Holly Lawson told us the city still has not applied for a permit.

DNR first issued a ticket to Mayor Gahan on Aug. 5. Two days later, the legal battle began.

The basis for both of DNR’s legal filings are essentially the same.

DNR alleged the city’s work on the dam is in direct violation of Indiana’s Flood Control Act, which essentially bans unpermitted changes to a floodway that would restrict it or be a danger to life, property or the environment.

City attorney Shane Gibson told DNR the mayor acted with emergency authority and did not need a permit. In his executive order, Mayor Gahan cites both a city and state code. One allows him to declare a local disaster emergency, while the other defines what that disaster is. The mayor relies on the last definition of Indiana Code 10-14-3 that defines the disaster is “any other public calamity requiring emergency action.”

On that note DNR disagrees, citing state law that allows agencies under the governor to step in and change orders in emergency situations not consistent with the rules and regulations of the state agency.

DNR emphasizes their assertion that the city intentionally circumvented state law by failing to get a permit ahead of construction, and if the actions were allowed to continue or remain in effect, it “flagrantly disregards potential adverse effects on the floodway.”

DNR has asked a judge to order work on the rock fill at the base of the dam to be stopped and removed all together.

The mayor’s actions come amid concerns over the dam’s safety, only heightened after 14-year-old Andre Edwards, Jr. died while swimming in May. A tort claim has been filed against the city as a result of Edwards’ death, joining ongoing litigation by River Heritage Conservancy, currently in dispute with the city on the removal of the dam.

WAVE first tried asking for comment on this story from Mayor Gahan in person on Wednesday. We also submitted questions to both the mayor and Michael Hall, the mayor’s media contact. The questions went unanswered.

With new litigation in the mix, WAVE again attempted to get comment from the mayor with a visit to City Hall. At 3:15 on a Friday afternoon none of the city’s top officials were at work, including the mayor, Hall or City Attorney Shane Gibson.

Security at the front door told WAVE they had all left for the day. City Hall closes at 4 p.m