Indy's 'Black Mountain' at center of long-running legal fight

You won’t find Black Mountain on any map of Indianapolis.

But you can learn plenty about the dubious Hoosier landmark in court records. They detail a series of legal fights over the manmade mound of fine, black sand that has plagued a small, east-side neighborhood for more than 15 years.

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It’s a tale intertwined with many familiar themes: the decline of Indiana’s manufacturing economy, greed, lax enforcement of environmental regulations, bankruptcy, broken promises and a heap of finger-pointing.

The saga of Black Mountain, however, is a story waiting for an ending.

A new ruling by the Indiana Court of Appeals could help hasten that conclusion — and a potentially happy one, at that, for beleaguered neighbors.

But only time will tell how the final chapter reads.

In the often-scathing 15-page order issued May 16, a three-judge appellate panel upheld a 2016 Marion Superior Court decision that directed the property owner, a corporation called FLM LLC, to bring the industrial dump site into compliance with city environmental regulations.

The judges also took both the city and FLM to task for their slow response to addressing the 2-acre dome left behind by International Recycling Inc., which leased the site in the 3500 block of East Washington Street from FLM. The recycler went bankrupt after DaimlerChrysler, its only customer, stopped paying IRI to haul away used sand from Chrysler’s now-shuttered Indianapolis foundry.

“We are concerned, as the citizens of Indianapolis should be,” Judge John G. Baker wrote, “that it took the city so long to step in more forcefully and that, despite winning a nearly $2 million judgement from IRI’s insurer, FLM has not done what needs to be done to remedy the situation.”

A spokeswoman for the city said she could not talk about the ruling because of the pending litigation, and an attorney for FLM did not respond to IndyStar's request for comment. But it’s likely the dispute will land back in court before neighbors finally get to see Black Mountain vanish the same way it was created — one truckload at a time. That’s because removing the more than 100,000 tons of sand is estimated to cost as much as $3.5 million, according to court records, and FLM claims it isn’t responsible and doesn’t have the money.

What happens next remains as murky as the water pooled around the base of Black Mountain, spawning a plague of mosquitoes that makes it nearly impossible for residents along South Ewing Street to enjoy typical summer activities in their yards. And the prospect of waiting even longer for a resolution doesn't sit well with them. 

"I'm not happy with it at all," said Roberta Hillery, whose home backs up to Black Mountain. "I've been fighting it for years. It's downgraded my property value. I can't have my grandchildren over to play because of this. I can't have a family gathering like a barbecue. I can't do none of that. I can't fix the back of my house because the sand blows and it just hits the back of the house."

When Hillery and her family moved into their home in the mid-1980s, Black Mountain didn't exist. The eight-acre site that is home to the giant pile "was real nice," said Hillery's adult daughter, Roseann Hillery. "It was a cement block and brick company, and it was well maintained."

All that changed after FLM leased a portion of the property to International Recycling Inc. in 1999. For the next three years, a steady stream of trucks rolled in and dumped sand onto the ever-growing heap. For a while, according to court records, IRI combined some of the sand with stone and removed the mixture from the property for use as backfill in construction projects.

But after losing its contract with Chrysler in the fall of 2002, court records show IRI stopped paying its rent and abandoned the site. The company later filed for bankruptcy. There were no assets available to pay for removal of the mountain of sand left behind by IRI.

That's when the lawsuits, citations and finger pointing started.

FLM sued IRI and DailmerChrysler, and later the recycling company's Cincinnati-based insurance provider.

The city first cited FLM in 2004, ordering the pile removed, but didn't push enforcement. That same year, the Indiana Department of Environmental Management issued violation notices to the automaker, FLM and IRI, but put enforcement on hold while the legal cases moved through the courts.

In 2007, a judge ordered the bankrupt recycling firm to clean up the pile and pay a $45,000 fine. But that proved fruitless. The following year, a Marion County judge ruled IRI's insurance company was not liable for cleaning up Black Mountain.

The court of appeals reversed the 2008 ruling in 2013, finding the insurer was liable, and in July 2013 the trial court released $1.7 million from the insurance company to FLM. The next month, the Metropolitan Development Commission of Marion County filed a lawsuit asking the court to make FLM bring the property into compliance within 120 days.

In May 2016, Marion Superior Judge Cynthia Ayers' court issued an order finding Black Mountain violated height restrictions, did not have a required drainage permit and "altered the land in a manner that does not conform to the existing topography," which also is a code violation. The court again ordered FLM to remove the sand — but, as with past rulings, FLM appealed and nothing happened at the site.

The most recent legal development was last month's Court of Appeals ruling that again ordered FLM to remove Black Mountain. And the judges blasted FLM for taking the insurance money in 2013, but not doing any clean-up at the site. Instead, according to court records, FLM used the money to repay itself $495,000 for lost rent, $686,741 for attorney fees and $9,234 for environmental consulting.

"It has had four years of possession of $1.7 million — with another $750,000 held by the insurance litigation trial court — and has not used a dime to make the mountain smaller," Baker wrote in the order.

The court of appeals ruling also called FLM's claim that it cannot afford to remove Black Mountain "outrageous."

"We are, frankly, stunned," the order says. "A lack of ability to pay does not constitute a defense to a parking ticket or virtually any civil claim we can think of, much less to a lawsuit regarding an environmental scourge contained on the defendant's own property."

Such a claim, the court of appeals order concluded, "does not come close to passing the proverbial straight face test."

The Metropolitan Development Commission has filed a motion in Marion Superior Court requesting yet another compliance hearing, but as of this past week the court had not acted on the request.

For now, the pile of sand covering an area the size of two football fields looms just yards off of East Washington Street, between Rural Street and Sherman Drive. At its apex, Black Mountain towers more than 50 feet above the surrounding land. While the environmental nuisance is mostly hidden from public view by two sets of railroad tracks and a jumble of trees and brush, it remains a daily headache for long-suffering neighbors.

"I'm fed up," Roberta Hillery said this past week as she lamented life in the shadow of the huge sand pile slowly creeping onto her property.

"I don't know what to do. I've been to the city. I have been to the state. They have done nothing for me. It's like I don't exist. They know about the Black Mountain but they don't know about me."

Tim Evans is IndyStar's consumer advocate. Contact him at tim.evans@indystar.com or (317) 444-6204. And follow him on Twitter: @starwatchtim.