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ATTORNEYS FOR APPELLANT J. Christopher Janak Paul D. Vink Stephen C. Unger Daniel L. Taylor Indianapolis, Indiana ATTORNEYS FOR AMICI CURIAE INDIANA ASSOCIATION OF CITIES & TOWNS AND INDIANA MUNICIPAL LAWYERS ASSOCIATION Bette J. Dodd Joseph P. Rompala Jo A. Woods Indianapolis, Indiana

ATTORNEYS FOR APPELLEES Alan M. Hux Gayle A. Reindl John D. Papageorge Mark J. Crandley Nicholas K. Kile Indianapolis, Indiana

FILED
Nov 22 2011, 1:26 pm

In the

of the supreme court, court of appeals and tax court

CLERK

Indiana Supreme Court
No. 32S05-1104-PL-217 TOWN OF AVON, Appellant (Defendant below), v. WEST CENTRAL CONSERVANCY DISTRICT, WASHINGTON TOWNSHIP, AND RONNIE AUSTIN, IN HIS OFFICIAL CAPACITY AS TRUSTEE AND PARK GOVERNOR, Appellees (Plaintiffs below).

Appeal from the Hendricks Superior Court, No. 32D04-0810-PL-40 The Honorable Mark A. Smith, Judge On Petition to Transfer from the Indiana Court of Appeals, No. 32A05-1003-PL-00149

November 22, 2011 Shepard, Chief Justice.

We consider here whether the White Lick Creek Aquifer is a watercourse under Indiana law and, if so, whether the Home Rule Act permits the Town of Avon to regulate another political unit`s attempt to withdraw water from the aquifer. We answer both questions in the affirmative, and further conclude that the Town of Avon`s proposed regulation is not preempted by statutes authorizing the Department of Natural Resources to regulate aquifers.

Facts and Procedural History

Washington Township and the West Central Conservancy District (WCCD) both own real property within the corporate boundaries of the Town of Avon. The Township owns a local community park, and WCCD owns 100 acres of land;1 their properties overlay an underground water supply known as the White Lick Creek Aquifer. As early as 2005, the Township and WCCD started exploring the possibility of drilling wells into the Aquifer in order to withdraw water and sell it to third parties. In 2008, Avon passed Ordinance No. 2008-8, which purports to exercise Avon`s power to establish, maintain, control, and regulate the taking of water, or causing or permitting water to escape, from a watercourse both inside and within ten (10) miles of the Town`s municipal limits.2 (Appellant`s App. at 11, 408.) The ordinance prohibits taking water from a

Some of WCCD`s land is outside Avon`s municipal limits, but within a ten -mile range of those limits. (Appellant`s App. at 386.)
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All parties spill a good deal of ink arguing Avon`s motives (both overt and ulterior) in enacting the ordinance, as well as the validity of the asserted rationales. However, [t]he rule is firmly settled in this State, that the courts will not inquire as to the reasonableness of an ordinance when power exists to pass it. Skaggs v. City of Martinsville, 140 Ind. 476, 478, 39 N.E. 241, 242 (1894). Nor will we inquire into the motives of members of a municipal council for the purpose of determining the validity of ordinances which are not contractual, but wholly legislative in character. Gardiner v. City of Bluffton, 173 Ind. 454, 460, 89 N.E. 853, 855 (1909). Here, the question presented is not why Avon passed the ordinance, or
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watercourse for retail, wholesale, or other mass distribution unless done by or on behalf of Avon. (Appellant`s App. at 11, 408.) The ordinance defines a watercourse as including lakes, rivers, streams, groundwater, aquifers, and/or any other body of water whether above or below ground. (Appellant`s App. at 12, 408.) Avon has relied on several Indiana Code sections governing a political unit`s powers with respect to watercourses (the Watercourse Statutes).3 The Township and WCCD subsequently filed complaints challenging the ordinance`s validity under Indiana`s Home Rule Act.4 Cross-motions for summary judgment followed. After a hearing, the trial court granted summary judgment for the Township and WCCD,5 and denied summary judgment for Avon. Avon appealed.

The Court of Appeals affirmed, concluding that summary judgment for the Township and WCCD was appropriate. Town of Avon v. W. Cent. Conservancy Dist., 937 N.E.2d 366 (Ind. Ct. App. 2010). We granted transfer, Town of Avon v. W. Cent. Conservancy Dist., 950 N.E.2d 1205 (Ind. 2011) (table), vacating that opinion. We now reverse.

whether it was wise to do so; the question is whether the ordinance is valid with respect to the Aquifer, the Township, and WCCD.
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Ind. Code

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