Town of Avon v. West Cent. Conservancy Dist., 32S05–1104–PL–217.

• Decision Date: 22 November 2011
• Docket Number: No. 32S05–1104–PL–217.,32S05–1104–PL–217.
• Citation: 957 N.E.2d 598
• Parties: 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).
• Court: Indiana Supreme Court

957 N.E.2d 598

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).

No. 32S05–1104–PL–217.

Supreme Court of Indiana.

Nov. 22, 2011.

[957 N.E.2d 600]

J. Christopher Janak, Paul D. Vink, Stephen C. Unger, Daniel L. Taylor, Indianapolis, IN, Attorneys for Appellant.

Bette J. Dodd, Joseph P. Rompala, Jo A. Woods, Indianapolis, IN, Attorneys for Amici Curiae Indiana Association of Cities

[957 N.E.2d 601]

& Towns and Indiana Municipal Lawyers Association.

Alan M. Hux, Gayle A. Reindl, John D. Papageorge, Mark J. Crandley, Nicholas K. Kile, Indianapolis, IN, Attorneys for Appellees.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 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

[957 N.E.2d 602]

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.

Standard of Review

Summary judgment is appropriate when the moving party demonstrates that there are no genuine issues of material fact with respect to a given issue or element of a claim. Ind. Trial Rule 56(C); Dugan v. Mittal Steel USA, Inc., 929 N.E.2d 184 (Ind.2010). Once the moving party satisfies this burden, the non-moving party must designate appropriate evidence to demonstrate the actual existence of a genuine issue of material fact. Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267 (Ind.2009). A court must construe all designated evidence and reasonable inferences in favor of the non-moving party, and resolve all doubts against the moving party. Id.

On appellate review of a grant or denial of summary judgment, we examine the same framework. Where the facts are undisputed and the dispute is only as to a matter of law, our review is de novo. Freidline v. Shelby Ins. Co., 774 N.E.2d 37 (Ind.2002). We reverse if the law has been incorrectly applied to the facts. Wagner v. Yates, 912 N.E.2d 805 (Ind.2009).

I. Is the White Lick Creek Aquifer a “Watercourse”?

All parties agree that a critical determination in this case is whether the White Lick Creek Aquifer is a “watercourse” for the purposes of Indiana law.

Some time back, we defined a watercourse to mean “a channel cut through the turf by the erosion of running water, with well-defined banks and bottom, and through which water flows, and has flowed immemorially, not necessarily all the time, but ordinarily, and permanently for substantial periods of each year.” N.J., Ind. & Ill. R.R. Co. v. Tutt, 168 Ind. 205, 211, 80 N.E. 420, 422–23 (1907). The Court of Appeals has observed that the determination of whether a particular body of water is a watercourse is based on the applicable facts. See, e.g., Birdwell v. Moore, 439 N.E.2d 718, 721 (Ind.Ct.App.1982). No particular fact is immediately conclusive in the determination, including whether the watercourse has a defined bed and banks. See id. What we examine most closely is the substantial existence, unity, regularity, and dependability of the water's flow along a distinguishable course. See Long v. IVC Indus. Coatings, Inc., 908 N.E.2d 697 (Ind.Ct.App.2009).

The Indiana Code does provide that the term watercourse “includes lakes, rivers, streams, and any other body of water.” Ind.Code § 36–9–1–10 (2007). The parties disagree as to whether an aquifer may be properly categorized as “any other body of water” under this definition. Avon contends that the word “any” dictates an expansive scope for this provision, and the provision applies to “ ‘each,’ ‘every,’ and ‘all’ bodies of water, wherever located.” (Appellant's Br. at 12.) If true, this definition would include all aquifers.

The Township and WCCD, on the other hand, urge that we apply the doctrine of ejusdem generis in interpreting this provision. (Appellee Township's Br. at 20–21; Appellee WCCD's Br. at 21.) For example, WCCD argues that “any other body of water” means “only those bodies of water

[957 N.E.2d 603]

that ‘are of like kind ... to those designated by the specific words,’ that is, bodies of water that, like lakes, rivers, and streams, have defined banks, a bottom, and a channel—such as, for example, brooks or creeks.” (Appellee WCCD's Br. at 23.)

We think that Avon's suggested interpretation paints with too broad a brush. This interpretation would blur, and possibly wash away, the legal line between watercourses and bodies of surface water—a line to which Indiana courts have consistently held. See, e.g., Tutt, 168 Ind. at 210–11, 80 N.E. at 423 (comparing mere surface water, even when gathered in channels and conveyed away, with a watercourse); see also Birdwell, 439 N.E.2d at 721 (common enemy doctrine applies to surface water but not water in a watercourse). We therefore concur with the analytical approach taken by the Township and WCCD, although we think it leads to a different conclusion.

A proper application of ejusdem generis would interpret “any other body of water” as including “things as are of like kind or class to those designated by the specific words.” Drake v. Mitchell Cmty. Sch., 649 N.E.2d 1027, 1030 (Ind.1995) (quoting Thompson v. Thompson, 259 Ind. 266, 275–76, 286 N.E.2d 657, 662–63 (1972)). Here, that “class” is “watercourses.” Those watercourses specifically designated by the statute are “lakes, rivers, [and] streams.” Ind.Code § 36–9–1–10. For questions such as the one before us, we think this leads to examination of the characteristics (like defined boundaries, flow, and historic existence) of the listed items as compared to those of the Aquifer.

As we discussed above, our state's common-law definition of watercourse has consistently held that whether a body of water has defined banks, bottom, and channel is not conclusive in determining if that body of water is a watercourse. We hold that the phrase “any other body of water” in Indiana Code § 36–9–1–10 refers to any other body of water satisfying our common-law definition of a watercourse. While that body of water's similarity to a lake, stream, or river would be informative, it would not be dispositive. This interpretation reflects the fact-specific nature of the inquiry and comports with our presumption that when the Legislature appears to modify the common law by statute, “it is aware of the common law and that its intention is to not change the common law beyond what the express terms of its enactments and fair implications allow.” Midtown Chiropractic v. Ill. Farmers Ins. Co., 847 N.E.2d 942, 947 (Ind.2006).

We turn then to the White Lick Creek Aquifer. Nothing in the common-law definition of a watercourse presumptively excludes subterranean water merely because it is subterranean. See Gagnon v. French Lick Springs Hotel Co., 163 Ind. 687, 696, 72 N.E. 849, 851–52 (1904); see also Wiggins v. Brazil Coal & Clay Corp., 452 N.E.2d 958, 963 (Ind.1983) (addressing “lost water that percolates the soil below the surface of the earth, in hidden recesses, without a known channel or course ” (emphasis added)); Bump v. Sellers, 54 Ind.App. 146, 150, 102 N.E. 875, 877 (1913) (“Counsel for appellee have contended that the waters sought to be drained were underground or percolating waters and not governed by the law relating to natural water courses. It is mainly a question of fact and a matter of proof as to whether the waters drained were a natural water course.”). The distinction between the “lost water” of Wiggins and an underground watercourse is no different than the distinction between surface water and a surface watercourse.

[957 N.E.2d 604]

To begin, we note that the Indiana Code defines an aquifer, for purposes of its Water Resource Management Statutes, as “an underground geologic formation that: (1) is consolidated or...