A Citizen's Guide to Indiana

HB 1289 is a bill introduced by Rep. Ellington and passed by the House 63-27 which would impact a situation in Tippecanoe County. (For all I know, it’s specifically motivated by that situation). In fact, the more I read this legislation, the more breathtaking its scope seems. I’d welcome someone to talk me off of the ledge if I’m overstating its impact.

The bill expands the ability of mining companies to mine in flood plains and eliminates the ability of local government to regulate mining activity (except for a small exception having to do with roads). And, unless I’m missing something, it changes a definition but then proceeds to eliminate the use of that definition anywhere in the statute.

The bill has the euphemistic description of “local regulation of natural resource development” when, really, it’s not so much talking about developing natural resources as extracting them.

Rep. Ellington had a go at this issue last year with HB 1132-2017.  Last year, I wrote:

IC 36-7-4-1103 prohibits action by an area plan commission (the body more or less in charge of zoning regulations) that prevents “the complete use and alienation of any mineral resources or forests by the owner or alienee of them.” The mining companies can argue (and have argued) that this language is incredibly broad. Regulation of any kind at the local level is seen by them as precluded by this statute.

The exception, embedded in the current statute, is that this prohibition is effective only outside of “urban” areas. So people in “rural” areas are (if the mining company interpretation of the statute is to be believed) powerless to implement zoning regulations to keep noise levels down, prevent contamination of water quality, and generally avoid and mitigate the problems that go along with large scale mining operations.

In the statute “urban” is defined as an area with eight or more residences within a quarter mile square area. Rep. Ellington’s legislation would impose a 600% increase in the urban/rural threshold, increasing the number of residences from eight to fifty.

At the moment, the residential threshold goes up only to 20 rather than 8, but it’s still a significant expansion. Or it would be except that, as I read the legislation, it changes the definition of “urban areas” but goes on to delete the only reference to “urban areas” contained in the section. So the definition is changed, but the term is no longer used in the statute. (This appears to be the result of a sloppy committee amendment that changed the introduced version.)

And a new development this year is would be extremely relevant to the Rogers Group’s efforts to mine near the town of Americus in Tippecanoe County. The bill says that a plan commission and board of zoning appeals aren’t allowed to adopt a law that prevents the extraction of mineral resources in a flood plain. The latest development in that local saga was that the Tippecanoe County Board of Zoning Appeals rejected the Rogers Group’s request for a special exception that would allow it to mine in an area near the town of Americus. Local residents have strongly objected to the initiative. The Tippecanoe County BZA rejected the application due to the site’s impact on the flood plain of the Wabash River. The Rogers Group did not appeal that decision.

But, I think this legislation would open up an even older saga. Years ago, Carmel won a case that allowed it to regulate mining within the city limits.  This new legislation would seem to nullify Carmel’s mining ordinances and would permit mining interests to conduct mining operations in the city however they saw fit, so long as the impact on the roads wasn’t too great.

The legislation adds a new IC 36-7-39 that says that a unit of local government cannot regulate the extraction of mineral resources or the sale or removal of merchantable timber on private property. The only exception is that units can enforce regulations having to do with weight limits and damage to roads leading up to that private property. This legislation specifically overrides IC 36-7-2-6 which says that “A unit may regulate excavation, mining, drilling, and other movement or removal of earth below ground level.” So, in a sense, the discussion earlier in the bill that talks about urban and rural areas, is a bit of a head fake.

I’m a little surprised this passed the House so handily. I wonder if Representatives really understood what was going on here. Or, possibly I’m over-reading the scope of the legislation. I’d welcome correction if that’s the case. But, I know that — if passed — when mining companies take this new law to court, they’ll urge as broad an interpretation as possible.

I know that, on a superficial level, letting people do whatever they want on their own property has a great deal of appeal. But, when it comes to environmental matters, the fact is that the impact of people’s activity on their own land is not confined to that land. When the impact crosses boundary lines, it becomes the business of neighbors and the public. If people are forced to see, smell, and hear what’s happening on your property . . . if it affects their water, etc. then the activity is no longer private. Local government should have the ability to balance the interests of its citizens. The costs of private activity shouldn’t be externalized onto the public.

Sen. Alting is carrying SB 236 which would designate the Say’s Firefly as Indiana’s state insect. I talked about this back in 2016 in a post entitled “Fireflies, Pie, and Process.”  Back then, it got as far as an informal committee hearing in the House but no formal vote. Today, it received a formal hearing passed out of the Senate Committee on Public Policy with a unanimous vote.  This one is of particular interest to me because it’s local. It has been a project of West Lafayette elementary students.

All reports are that the kids and supporters did a great job in front of the committee.

“I’ve been here 20 years and never seen a presentation like today,” said Alting.

Based off facts and a lot of heart, Sen. Alting said the kids knocked it out of the park.

Tony Cook, reporter for the Indianapolis Star, tweeted

Watching one of the most impressive displays of legislative lobbying power I’ve ever seen: 10-year-old West Lafayette student is killing it advocating for Says Firefly to become Indiana’s official insect. https://t.co/sLE62LL3nT

— Tony Cook (@indystartony) January 31, 2018

The wind would seem to be at the students’ back. The Department of Education and Governor Holcomb are supporting the initiative. For the moment, they seem to have overcome a legislative environment where legislators felt they’d received blow back from their involvement in naming a state pie (but not, apparently, a state rifle). Back in 2016, I wrote:

Ultimately, however, the process for the students has more value than the actual passage of legislation getting the firefly named as state insect. Ms. Samudio’s response “there is always next year,” is definitely part of the process. For example, we have Daylight Saving Time because its enthusiasts ground away year after year until they were able to pass the law by the barest of margins. Also part of the process is realizing that the merit of your cause is not the only factor — there’s also the context in which legislators are operating. In this case, part of that context was having blow back from the sugar pie efforts some years earlier.

This isn’t going to change the world. But the kids make a good case. Most other states have a state insect. And, if we’re going to have one, Say’s Firefly is a good pick. Thomas Say was an early American entomologist who lived in New Harmony, Indiana in the early 19th century. And those of us who grew up in Indiana can certainly appreciate how much a part of summer those fireflies are.

So, good job by the West Lafayette kids. Hope they can keep this initiative moving.

Rep. Lehe has introduced HB 1427 which would license “naturopathic physicians.” With some exceptions, people would be prohibited from practicing naturopathic medicine without a license. Naturopathic medicine is defined as, “the prevention, diagnosis, and treatment of human health conditions, injury, and disease using patient education and naturopathic therapies and therapeutic substances recognized by the Council on Naturopathic Medical Education and approved by the medical licensing board.”

It includes mechanotherapy, articular manipulation, corrective and orthopedic gymnastics;  hydrotherapy;and  electrotherapy as well as  the practice of the material sciences of healing, including
nutrition, phytotherapy, treatment by natural substances, and external application.”

There are some broad exceptions to the application of the licensure requirement — for example, it doesn’t affect the ability of a health professional to practice within the scope of their license. It also doesn’t apply to a person treating themselves or their family. And, it doesn’t apply to “a person that sells and provides information about vitamins or herbs that the person offers for sale.”

Still, even if you accepted that “naturopathic” medicine is a legitimate discipline that can be practiced safely only by credentialed professionals (a contention that is very debatable), the definition is way too broad. As written, unless one of the exceptions applies, “only a licensed naturopathic doctor may practice naturopathic medicine.” “Naturopathic medicine” includes the material sciences of healing which includes nutrition. So, arguably, providing information about nutrition puts you in violation.

Back when I was drafting these things, it was my perception that it was the credentialing organizations mostly pushing for the licensure bills and they were going to profit by selling professional education classes. I suppose I don’t know that’s the case with this one, but I think it would be a solid guess.

The Hoosier State Press Association has an opinion column in the Courier Press objecting to proposed legislation that would result in annual government reports of receipts and expenditures being published online and would no longer require them to be published in the newspaper. It specifies HB 1004 by Rep. Siegrist (concerning cities and towns) and HB 1005 by Rep. Ziemke (concerning townships).

At the end of the year, local governments complete an annual report for their shareholders — taxpayers. For decades and decades, the state legislature has required that those reports be published in local newspapers. The information helps taxpayers determine whether their tax dollars have been spent wisely by elected officials.

As an initial matter, the “taxpayers are shareholders” metaphor rubs me the wrong way. There is tremendous overlap between citizens and taxpayers, but ultimately, citizenship is what confers an “ownership” stake in the country. Paying taxes is an incident of citizenship. The rights and duties we have flow from our status as citizens; not whether and how much we paid in taxes.

But that’s an aside. The thrust of the opinion piece is that posting the financial report on the Department of Local Government Finance website is “hiding” the information because lots of people read the newspaper (3 million a week!) while, the argument goes, not very many people go to the DLGF website.  I am very skeptical of the idea that significant numbers of people are poring over these financial reports buried away in the classifieds. The people who are reading these things in the papers are mostly, I would guess, the same people who would go the DLGF website to take a look.

I have to think that this is more about money, and the opinion is not being very forthright about the idea that this is about a source of revenue that newspapers do not want to lose. The newspapers are, after all, free to reprint the information from the DLGF if they want. If this is the sort of information that interests the 3 million readers per week touted by the opinion piece, skipping the publication fee would presumably be a small price to pay. The opinion piece tries to dismiss the cost of newspaper publication as an average of $167 per unit. (That number was for cities and towns. The best number the fiscal report came up with for townships was $300, but it indicated that number might be high.) However, I suspect that when you start adding up all of the units and publication costs, the money paid to these newspapers starts to add up.

To me, having a central location where you can find all of this information when you need it seems like it makes more sense than hoping you catch the edition of the newspaper where the annual financial report was published. And, yes, you could do both — but fundamentally, I just don’t think that many people are paying attention to these reports as they’re published in the newspaper. Regardless of whether my opinion is correct, the headline to this opinion is inflammatory: “Don’t let Indiana lawmakers operate in the shadows.” I think people of good will can disagree about whether local government financial reports are more readily found in the daily paper or in a central, online repository. But accusing these lawmakers of trying to let government “operate in the shadows” based on a proposed shift from local papers to a state website is simply unfair.

Sen. Stoops has introduced SB 400 concerning “ranked voting.” It’s a long piece of legislation, and the election code — Title 3 – is somewhat bewildering, so, full disclosure: I haven’t read it all. But, very generally, it allows cities, towns, and counties to provide for ranked voting in filling their offices.

The way ranked voting would work is that voters could rank some or all of the candidates, first choice, second choice, third choice, etc. The first time through, you give all the candidates their first choice votes. If a candidate gets a majority of the votes, that candidate wins and the counting stops. If no candidate gets a majority, you go to step 2. You eliminate the candidate with the fewest votes and then, for the ballots that selected that candidate as the first choice, you go to the second choice on those ballots and assign them to the remaining candidates. If no candidate has a majority at that point, you rinse and repeat until you get a majority.

The motive behind SB 155 concerning deceased voters is not a bad one, but with a subject like “deceased voters,” you’re going to invite people to make fun of it. I clearly couldn’t resist. Sen. Walker’s bill provides that, if a person casts an absentee ballot and then subsequently dies (making the vote very absentee), the person’s votes are valid and should be counted, notwithstanding the death.

Wanting to honor the wishes of the dead is laudable but, in my mind, I guess the point of an election is to determine the will of the governed. When someone has passed away, they are beyond the laws of man. And, so, to me, it seems reasonable to count the votes of only the living who will be subjected to the laws and governance of the person put in office. That said, I can’t imagine that this amounts to very many votes. And, death is the ultimate non-partisan issue. So, even though I lean against the legislation, I’m not going to get any heartburn if it passes.

The bill passed out of the Senate Elections Committee and will head to the floor of the Senate.

Sen. Raatz has introduced SB 172 mandating that high schools include computer science in their curriculum and creating a state computer science grant program and associated fund. I’m generally against state mandates for local school curriculum. But, if the state is going to impose requirements, computer science sounds like a good one.

The grant program would provide for the State to give money to universities and other institutions capable of training teachers to teach computer science. A grant fund is created but, at least in this bill, no money is placed in that fund. I don’t know if that would be in separate legislation or wait until the budget bill.

Current law states that sciences are a required part of any school corporation’s curriculum. The bill amends that provision to say that “sciences” includes (after June 30, 2021) “computer science.” It also states that:

(a) After June 30, 2021, each public school, including a charter school, shall offer at least one (1) computer science course as a one (1) semester elective in the public school’s curriculum at least once each school year for high school students. (b) After June 30, 2021, each charter school shall include computer science in the charter school’s science curriculum for students in kindergarten through grade 12.

The fiscal note suggests that this curriculum requirement could be satisfied by routing students to the Indiana Online Academy at a cost of $295 per student which the schools could either pay themselves or require students to pay. If the school has to hire teachers, the fiscal note estimates the cost of hiring each teacher as about $59,000.