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Filed: 8/9/2018 2:53 PM

IN THE
INDIANA COURT OF APPEALS
CAUSE NO. 18A-PL-01849

ALCOA FUELS, INC., )


ALCOA WARRICK LLC, and )
LIBERTY MINE, LLC, ) Appeal from the
) Warrick Superior Court
Appellants (Plaintiffs below), )
)
v. )
) Trial Court Cause No:
CITY OF BOONVILLE, INDIANA, ) 87D02-1801-PL-116
)
Appellee (Defendant below), )
)
RON NELSON, CHARLES JONES, ) Special Judge
and ) Hon. Carl A. Heldt
SAVE OUR HOMES, LLC, )
)
Appellees (Intervenors )
below). )

VERIFIED EMERGENCY MOTION TO ACCEPT IMMEDIATE


JURISDICTION OF INTERLOCUTORY APPEAL

The trial court allowed the City of Boonville to exercise jurisdiction over a

coal mine project located entirely outside the City’s borders. The City’s exercise of

jurisdiction beyond its territorial boundaries immediately and irreparably injures

Appellants Alcoa Fuels, Inc. and Alcoa Warrick LLC (collectively “Alcoa”), including

by threatening Alcoa’s ability to make aluminum and employ hundreds in its

Warrick County facilities. In addition to being a territorial overreach, the City’s

action is preempted by State and federal law. State regulators charged with

overseeing coal mining in Indiana have already approved the project, which
complies with the governing State and federal coal mining regulations. Yet the

City’s ordinance would override those laws and replace them with the City’s own

attempt to halt the mine project. None of Alcoa’s operations are within the City

limits. But the City’s ordinance impinges on Alcoa’s ability to obtain the coal needed

for its energy-intensive operations in Warrick County. As the trial court found,

Alcoa has no legal remedy for the injuries the City’s ordinance would inflict on

Alcoa. Pursuant to Ind. Appellate Rule 56(A), Alcoa respectfully requests that the

Supreme Court accept immediate jurisdiction of Alcoa’s interlocutory appeal of the

trial court’s order denying in part Alcoa and Liberty Mine LLC’s motion for a

preliminary injunction (the “Order”) to promptly resolve the immediate and

significant harm to Alcoa and address the matters of public interest raised by this

appeal.

BACKGROUND

The Ordinance

The City enacted an ordinance (the “Ordinance”) that creates a moratorium

on mining not just within the City’s borders, but in areas surrounding it. 1 The

Ordinance does so through three operative provisions. Section 1 of the Ordinance

imposes a “moratorium” on the removal of “coal, gas, oil, or other minerals.”

(Ordinance § 1.) This prohibition applies within the City as well as “areas within

three (3) miles outside its corporate boundaries.” (Id.) It bans mining in this

territory, including the area three miles outside the City. (Id.)

1 A copy of the Ordinance is attached as Exhibit A.

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Section 2 of the Ordinance purports to impose a second “moratorium” on

mining or blasting within 1,000 feet of “any of the City’s utility infrastructure.”

(Ordinance § 2.) Again, the Ordinance states this prohibition extends to any area

within three miles of its corporate boundaries. (Id.)

Section 3 of the Ordinance purports to prohibit “industrial uses of

watercourses” unless both the City’s mayor and its city council give prior written

permission. (Ordinance § 3.) The Ordinance does not list the circumstances that

would lead the City to give the required permission. (Id.) The Ordinance includes

mining in its definition of an “industrial” use of a watercourse. (Id.) The “uses” the

Ordinance prohibits include removing water from a watercourse for mining,

diverting water from a watercourse for mining, and discharging fluids or other

byproducts from a mine. (Id.) These activities are necessary for mining. (Complaint

¶ 92.) Because the Ordinance defines an “industrial” use of a watercourse to include

mining, Section 3 of the Ordinance impedes mining in areas where it applies.

(Complaint ¶ 48; Ordinance § 3.) The Ordinance extends the watercourse

prohibition to three miles beyond the City’s border. (Id.)

The Ordinance, if applied, would effectively cease activity otherwise

authorized in permits issued by State regulators. (Order ¶¶ 54-57.) It contains no

exception for State-authorized activities. (Ordinance §§ 1-3.)

Alcoa’s Operations

Alcoa maintains extensive operations in Warrick County. These facilities

include an aluminum smelter, rolling mill, and ingot plant, all of which are owned

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and operated by Alcoa Warrick LLC (the “Warrick Operations”). Alcoa also

maintains a power plant that provides power and other utility services to Alcoa’s

operations. (Order ¶¶ 5-6.) None of the Warrick Operations are within the City. (Id.)

The Warrick Operations (and the smelter in particular) are an energy-

intensive manufacturing operation that makes and processes aluminum. (Id.) Alcoa

requires a readily available source of coal nearby to successfully and predictably

maintain its operations in Warrick County. (Id.) Absent readily available energy,

the Warrick Operations (and the many jobs it provides) would be imperiled. (Id.)

Alcoa sells aluminum in a global market. (Id.) The cost of electricity is a

critical element of production, and high energy costs harm the ability of any

aluminum plant to remain viable against global competitors. (Id.)

The Mining Permit

Coal mining has been a feature of life in Warrick County for decades. (Order

¶ 4.) Liberty Mine LLC’s affiliated entities have mined coal in Warrick County for

at least the past 20 years, and its current mining work includes an operation known

as the Liberty Mine. The Liberty Mine employs over 100 people on a full-time basis,

and extracts coal owned by Alcoa for use in generating power for the Warrick

Operations. (Complaint ¶¶ 19-21.)

Alcoa owns the rights to coal deposits within Warrick County but outside of

the City, and has contracted with other property owners in Warrick County (but

outside the City) to remove coal from their property for a royalty. (Order ¶ 2.)

Alcoa and Liberty need to obtain coal from these deposits in order to satisfy

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the coal needs of the Warrick Operations.

On February 28, 2012, Liberty obtained a surface mining permit (“Permit S-

366”) from the Indiana Department of Natural Resources (“DNR”), allowing Liberty

to mine coal in Warrick County but outside the City. No part of the permitted area

is or has ever been in the City. Liberty continues mining coal today under that

permit, and does so pursuant to contracts with Alcoa Fuels and to provide fuel for

the Warrick Operations. (Complaint ¶¶ 29-30.)

In March of 2017, Liberty applied for an amendment to Permit S-366 to

expand its mining to include an area referred to as the “Liberty Mine South Field,”

which lies to the south of the current Liberty operations. (Complaint ¶¶ 31-32.)

The Liberty Mine South Field is entirely outside the corporate limits of the

City, comes no closer than 2,500 feet to the City’s corporate limits, contains no

residences, and includes no City municipal utility infrastructure or facilities.

(Complaint ¶¶ 34-37.)

The purpose of the amendment, designated as “Permit S-366-2”, is to allow

Liberty to extract coal in the Liberty Mine South Field pursuant to the contract

between Liberty and Alcoa. (Id.) The DNR approved Permit S-366-2 on January 4,

2018. This approval expanded Liberty’s permit area to include the Liberty Mine

South Field. (Complaint ¶ 33.) Under the conditions set out in Permit S-366-2,

Liberty may not engage in blasting or removal of overburden at any point within

the Liberty Mine South Field closer than 0.9 miles from the closest point along the

City’s corporate limits, and the vast majority of all blasting activity will occur

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substantially farther than one mile from the City’s corporate limits. (Complaint ¶¶

38-39.) The Ordinance, by contrast, extends the parameter for blasting to three

miles around the City’s borders. (Ordinance § 2.)

The City filed an administrative appeal of Permit S-366-2 on February 1,

2018. The permit remains in effect, and the administrative appeal is ongoing.

The Ordinance prevents the mining activity that the DNR authorized by

Permit S-366-2.

The Order

After unsuccessfully attempting to resolve the issues through mediation and

settlement discussions, Alcoa and Liberty Mine challenged the Ordinance and

sought a preliminary injunction. On July 9, 2018, the trial court entered the Order

and held that:

 Section 1 of the Ordinance unlawfully prohibited any mining within

three miles of the City in violation of Indian’s zoning requirements and

exceeded the City’s powers under the Home Rule Act;2

 Section 2(b) of the Ordinance lawfully allowed the City to prohibit the

use of blasting for mining outside the City’s borders; and

 The City could limit the use of watercourses for mining under Section 3

of the Ordinance.3

2 The trial court also enjoined a similar extraterritorial provision that


prevented mining within 1,000 feet of the City’s utility infrastructure located
outside the City’s borders. (Ordinance § 2(b).)

3 A copy of the Order is attached as Exhibit B.

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ARGUMENT

Under Appellate Rule 56(A), “the Supreme Court may, upon verified motion

of a party, accept jurisdiction over an appeal that would otherwise be within the

jurisdiction of the Court of Appeals upon a showing that the appeal involves a

substantial question of law of great public importance and that an emergency exists

requiring a speedy determination.” Id. The Order satisfies both prongs of Rule

56(A). The Order raises questions of law appropriate for resolution under Rule 56(A)

because it expands the power of local governments outside their territorial

boundaries and does so in ways that contradict and impinge on regulation by both

State agencies and another local government. Second, an emergency exists that

requires prompt adjudication because the Order prohibits necessary mining

activities, threatening the viability of the Warrick Operations despite the State’s

prior approval of the mining project. The Ordinance threatens the lifeblood of the

Warrick Operations. As already found by the trial court, the Order leaves Alcoa

without any recourse for more than $100 million in injuries that potential

enforcement of the Ordinance would inflict. (Order § 103.) The Court should grant

jurisdiction to ensure a prompt resolution of this appeal in order to resolve these

important questions of law and prevent significant harm to the Warrick Operations.

I. The Order Raises Substantial Questions Of Public Law Regarding


The Power Of Municipalities To Regulate Outside Their Borders.

The Order implicated important issues of law when it granted the City the

power to undercut a mining project that: (1) is already approved by State regulators

charged with overseeing mining under controlling State and federal laws; and (2)

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will occur wholly outside the City’s borders. The Order allowed the City to target

the mine by prohibiting Alcoa and Liberty Mine from making use of nearby

watercourses (a necessary part of the mining process) and by curtailing blasting

near the City’s utility infrastructure. This appeal therefore addresses three

substantial questions of law: (1) whether the City may regulate watercourses and

blasting despite existing federal and State regulation of both activities, including a

State-issued mining permit and required water permits; (2) whether the Order gave

municipalities a new form of extra-territorial power over mining that is not

authorized by the Home Rule Act; and (3) whether the City usurped the existing

regulation of watercourses by Warrick County.

A. The Ordinance Impermissibly Interferes With State And


Federal Regulation.

Under the Home Rule Act, a local government may not “regulate conduct that

is regulated by a state agency, except as expressly granted by statute.” Ind. Code §

36-1-3-8(a)(7). The Ordinance’s prohibition on the use of watercourses in mining

and its extraterritorial regulation of blasting violate this preemption provision in

the Home Rule Act by purporting to prevent activities expressly authorized by State

agencies. Id.

The City’s attempt to regulate watercourses contradicts at least four State or

federal permitting programs that control the use of watercourses for surface mining:

 Indiana’s implementation of the federal Surface Mining Control

and Reclamation Act (“SMCRA”) imposes a duty on permittees

to minimize disturbance of groundwater and surface water,

8
including a requirement to “treat[]drainage to reduce toxic

content that adversely affects downstream water upon release to

watercourses,” Ind. Code 14-34-11-1(9).

 The Indiana Department of Environmental Management

(“IDEM”) must issue a water quality certification under Section

401 of the Clean Water Act (“CWA”). This certification under

the CWA ensures that a proposed activity governed by the Act

will comport with its water quality standards.

 IDEM also must issue a National Pollution Discharge

Elimination System permit that will govern what substances the

Plaintiffs may discharge into any given watercourse and in what

amounts.

 The Army Corps of Engineers issues its own permit under

Section 404 of the CWA that also governs discharges into

watercourses.

The permit for the Liberty Mine South Field itself regulated the impact the

mine has on local watercourses. It expressly determined that “after extensive

review of all available information, coal processing waste disposal will not have an

adverse impact upon the hydrologic balance at this site.” (Permit p. 18.)

These State and federal regulations preempt the City’s attempt to impose its

own restrictions on the use of watercourses outside the city because they conflict

with already controlling state and federal regulations. Ind. Code § 36-1-3-8(a)(7).

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“‘An impermissible conflict with state law will be found if the Ordinance seeks to

prohibit that which a statute expressly permits.’” Indiana Dep’t of Natural

Resources v. Newton County, 802 N.E.2d 430, 433 (Ind. 2004) (quoting Hobble v.

Bashman, 575 N.E.2d 693, 697 (Ind. Ct. App. 1991)). That is precisely what the

Ordinance does by preventing a mine operation already approved by the State.

While the Court has previously determined that the DNR’s general oversight

of aquifers did not preempt a town’s regulation of withdrawals from aquifers, it has

never allowed a local government body to override the express permitting decisions

of a State agency. Compare Town of Avon v. W. Cent. Conservancy Dist., 957 N.E.2d

598, 607 (Ind. 2011) with Newton County, 802 N.E.2d at 433. The Avon case did not

involve an activity expressly permitted by the State. In Avon, the DNR had the

authority to identify aquifers that could not be tapped by those hoping to use the

underground water. Avon, 957 N.E.2d at 608. But the DNR had not actually

exercised that power in regard to the aquifer at issue in Avon. If it had, the case

would have had a different result. Id. Nothing in Avon—or any of this Court’s other

cases—allows local governments to override the decisions of State regulators to

issue permits. Avon, 957 N.E.2d at 607-08. The Home Rule Act itself expressly

forbids this type of local regulation of State and federal matters by divesting cities

of “[t]he power to regulate conduct that is regulated by a state agency, except as

expressly granted by statute.” Ind. Code § 36-1-3-8(a)(7).

The Order also upheld the City’s ability to regulate the “blasting” used in

surface mining. But that activity is also expressly allowed by the permit issued by

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the DNR. The General Assembly gave the DNR the power to regulate surface

mining under SMCRA. The governing statutes impose a host of conditions on a

surface mine permittee. These conditions extend over all aspects of surface mining

and expressly include determining the conditions under which blasting may occur.

See Ind. Code § 14-34-10-2; Ind. Code § 14-34-11-1; Ind. Code § 14-34-12-1, et seq.

Permit S-366-2 expressly governs whether, when, where, and how Liberty

may engage in blasting. (Complaint ¶¶ 38-39.) It says that Liberty may engage in

blasting so long as it does not occur closer than 0.9 miles from the closest point

along the City’s corporate limits. (Complaint ¶¶ 38-39.)

The Ordinance purports to take away the permission granted by the permit

by extending the area to three miles from the City’s border. (Ordinance § 2(b).) The

Home Rule Act prevents the City from “regulat[ing] conduct that is regulated by a

state agency, except as expressly granted by statute.” Ind. Code § 36-1-3-8(a)(7).

This City cannot purport to overrule the DNR’s permitting decision in favor of its

own blasting criteria.

Immediate appeal to this Court is therefore necessary to resolve the

substantial conflict between State and local law countenanced by the Order.

B. The City Cannot Ban Mining Indirectly By Creating An Over-


Expansive Prohibition On The Use Of Watercourses.

In addition to its intrusion on State regulation, the Ordinance is an

impermissible attempt to ban mining outside the City’s borders. The trial court

enjoined those parts of the Ordinance that directly banned mining outside the City’s

boundaries. (Order p. 31.) It did so because the City cannot create zones where

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mining may occur without following the required steps for promulgating a zoning

ordinance (a process the City ignored in enacting the Ordinance). (Order ¶¶ 32-33.)

This Court expressly held as much in City of Carmel v. Martin Marietta Materials,

Inc., 883 N.E.2d 781, 786-87 (Ind. 2008) (“When dictating what type of land use is

permitted and where, a unit must employ the zoning process and follow the 600

Series Procedures.”).4

The City seeks to circumvent this Court’s earlier holding in Carmel by using

watercourses as a stalking horse. The Ordinance purports to regulate the use of

“watercourses” as part of mining and to do so outside the City’s borders. This

language purports to prevent any withdrawal of water from a watercourse or

discharge of material into a watercourse for an “industrial use,” which is defined to

include mining. (Ordinance § 3.)

This provision of the Ordinance is another thinly veiled mining ban. It has

the purpose and effect of impermissibly regulating mining outside the City’s

borders. Mining cannot occur without access to any watercourse. The Ordinance

restricts the “industrial” use of watercourses, which includes using a watercourse to

engage in mining, which effectively prohibits mining. (Complaint ¶ 48; Ordinance §

3.)

The City cannot do by proxy what it cannot do directly. It cannot use a

purported regulation of watercourses as an end-around to the restrictions on its

4 In Carmel, the municipality made no attempt to regulate outside its own


borders. That case therefore did not address whether a municipality may engage in
extraterritorial regulation of mining. Similarly, there was no state permitting
requirement for the quarry at issue in Carmel. See id. at 786-87.

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municipal powers under the Home Rule Act and the Carmel case. Because the City

cannot prohibit mining directly, it may not do so by including mining as an

“industrial use” of a watercourse and prohibiting that industrial use.

C. Even If Local Regulation Was Permissible, Warrick County Has


Exclusive Jurisdiction Over Watercourses In Its Borders.

The City’s attempt to regulate watercourses ignores the existing regulation of

this precise issue by Warrick County. In 2006, Warrick County passed a series of

ordinances addressing watercourses within the county. See Warrick County Code §§

53.09, 53.10, & 53.05. These legitimate ordinances regulate the same matters as the

Ordinance. They limit discharges into a watercourse. See Warrick County Code §

53.09. They prevent landowners from allowing any material into a watercourse if “it

would pollute, contaminate, or significantly retard the flow of water through the

watercourse.” Warrick County Code § 53.10. And the Warrick County ordinances

provide that “[n]o person shall discharge or cause to be discharged into the storm

drainage system or watercourses any materials, including but not limited to

pollutants or waters containing any pollutants that cause or contribute to a

violation of applicable water quality standards, other than stormwater.” Warrick

County Code § 53.05.

While the City dismisses these restrictions as a “stormwater” ordinance, they

apply to any discharge into a watercourse. They are not limited to Warrick County’s

stormwater system.

If any local entity retains authority to regulate the mine’s use of

watercourses, it is Warrick County. By passing its own watercourse ordinances,

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Warrick County took exclusive jurisdiction over the watercourses within its

territory (and outside the City). The Home Rule Act does not allow two units to

exercise the same power over the same subject at the same time. Ind. Code § 36-1-3-

5. “Under Indiana law, there cannot be two municipal corporations for the same

purpose with coextensive powers of government extending over the same territory.”

Ryan Homes, Inc. v. Town of Cumberland, 742 F.2d 1115 (7th Cir. 1984). One must

prevail over the other.

This Court has resolved this type of conflict by giving exclusive jurisdiction to

the entity that first exercised jurisdiction over a territory. See City of N. Vernon v.

Jennings Northwest Reg’l Utils., 829 N.E.2d 1, 2 (Ind. 2005); see also Town of

Merrillville v. Merrillville Conservancy Dist., 649 N.E.2d 645 (Ind. Ct. App. 1995).

Since 2006, Warrick County has regulated watercourses within its

jurisdiction. It decided to exercise that power by limiting certain discharges into

watercourses. It declined to impose additional regulations and allows entities like

Alcoa and Liberty to withdraw water from watercourses. Once it exercised

jurisdiction over the watercourse, Warrick County alone had the right to make that

decision. City of N. Vernon, 829 N.E.2d at 2. By being first-in-time, Warrick County

gained the exclusive power to decide what restrictions are appropriate (and which

are not) for Warrick County’s watercourses.

The Ordinance is a second-in-time attempt to undo Warrick County’s choices

by imposing additional requirements on the use of the County’s watercourses. The

City cannot override the powers of another unit of government. Ind. Code § 36-1-3-5.

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The City lost any power to regulate watercourses outside its own borders once

Warrick County gained jurisdiction. The Court should therefore grant transfer to

avoid the conflict between the ordinances of two different bodies of local

government.

II. This Appeal Requires Expedited Treatment Because Of The


Immediate, Irreparable Harm The Ordinance Imposes On Alcoa.

Alcoa requires the Court’s expedited review of the case because of the

irreparable injury Alcoa faces if the City is allowed to enforce its Ordinance. Alcoa

requires a ready source of coal from the Liberty Mine to carry out its Warrick

Operations. (Order ¶¶ 4-6.) As the trial court determined, the Warrick Operations

are energy intensive. (Id.) The Warrick Operations need coal to supply the energy

needed to make aluminum. (Id.) Without a supply of coal readily available and

close-at-hand, Alcoa cannot ensure the continued viability of the Warrick

Operations. (Id.) The Warrick Operations contain several heavy industrial facilities,

including aluminum smelter, rolling mill, and ingot plant. These facilities compete

in a globally competitive market for aluminum. (Id.) The cost of energy is a primary

factor in Alcoa maintaining a competitive position in that global market. (Id.)

Alcoa’s facilities would be imperiled if the City severs their key supply of coal.

(Order ¶¶ 5-6.) This threatens the viability of the Warrick Operations. As the trial

court found, the potential injuries to the Warrick Operations exceed $100 million.

(Order ¶ 103.)

Alcoa has no legal remedy for the harms the Ordinance imposes on it because

of the immunities that shield the City from civil liability. Again, the trial court held

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as much: “Without a preliminary injunction, the Plaintiffs face months without

being able to put their property to a use already approved by the DNR. Because of

government immunities and other barriers to suit, the Plaintiffs cannot simply seek

damages for Boonville’s decision to handcuff Alcoa from putting its land to this

permitted use and Liberty from exercising its contractual rights.” (Order ¶ 102.)

The only protection Alcoa has is a preliminary injunction. The trial court

granted that relief only in part. It failed to entirely enjoin the enforcement of the

Ordinance and prevent the accompanying injuries to Alcoa. Prompt resolution of

the appeal is needed to prevent the irreparable harm the trial court identified but

did not enjoin.

CONCLUSION

Because the Order raises questions of law that require prompt and final

resolution by the appellate courts, as well as and the immediate threat of significant

irreparable injury, Alcoa respectfully requests that the Court accept jurisdiction

over Alcoa’s appeal of the Order.

Respectfully submitted,

s/Mark J. Crandley
E. Sean Griggs (Atty. No. 17716-49)
Mark J. Crandley (Atty. No. 22321-53)
BARNES & THORNBURG LLP
11 South Meridian Street
Indianapolis, Indiana 46204
Telephone: (317) 236-1313
Facsimile: (317) 231-7433
Email: sgriggs@btlaw.com
Email: mcrandley@btlaw.com

16
John Henderson (Atty. No. 31148-82)
STOLL KEENON OGDEN PLLC
One Main Street, Suite 201
Old National Bank Building
Evansville, Indiana 47708
Telephone: (812) 759-3802
Facsimile: (812) 759-3898
Email: John.Henderson@skofirm.com

Attorneys for Plaintiffs Alcoa Fuels, Inc. and


Alcoa Warrick LLC

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VERIFICATION

Pursuant to Indiana Appellate Rule 340:), I verify LhaI. Lhe Facts set, forth in

the foregoing Verified Motion are true and correct.

@JJL
Adam Ticman

18
WORD COUNT CERTIFICATE

I verify that this motion contains no more than 4,200 words as calculated by

the word processing program used to create it, which was Microsoft Word XP.

s/Mark J. Crandley

19
CERTIFICATE OF FILING AND SERVICE

I hereby certify that on this 9th day of August, 2018, the foregoing was filed
with the Clerk of the Court of Appeals.

I also certify that on this 9th day of August, 2018, the foregoing was served
upon the following in accordance with Rule 24 by United States mail, postage
prepaid:

Clerk Court Reporter

Clerk, Warrick Superior Court Court Reporter


1 County Square Warrick Superior Court
Boonville, Indiana 47601 1 County Square
Boonville, Indiana 47601

Trial Court Judge

Hon. Carl A. Heldt


825 Sycamore Street
Evansville, Indiana 47708

Counsel of Record

Mark Phillips Dirck H. Stahl


301 West Main Street 20 NW. First Street
P.O. Box 427 P. O. Box 916
Boonville, Indiana 47601 Evansville, Indiana 47706

Stephen C. Unger S. Anthony Long


Andrew M. McNeil 415 E Main St, Boonville, Indiana 47601
Bose McKinney & Evans LLP
111 Monument Circle, Suite 2700
Indianapolis, Indiana 46204

s/ Mark J. Crandley

DMS 13066701v1

20
ORBINANCE NUMBER 2017- Q3

CITY (m BoomzLLE, INDIANA

AN ORDINANCE CQNCERNING MININQ ACTIVITIES AND


WATERCOURSES IN AND AROUND THE CITY 0F BOONVILLE
WHEREAS, the City of Boonville (“City”) seeks to protect the public health, safety, ané
Weifaze fifths community; and

WHEREAS, the City has ?men advised of numerous hazards and concea'ns associated
with mining reiated activities near the City and ifs utjiity 'mfrastructure, including but not limitaéi
t0 property damage, dust, noise, impacts 0n watercourses, existing. older mine shafts Eocatefi
beneath homes and property, anci the éanger of hazardous materials stored in such existing
mines; and

WHEREAS, the City furiher seeks £0 protect the igng—Lerm future and growth of the
City, as well as ensure the viability of fume aconomic development ofthe area; and

WHEREAS, in addiziga to its genera] police power and home rule authoriéy, azad as a

nen—exhaustive list, the City 31213 the express authority to regulate conduct er file use 0f property
that might endanger the public health, safety, 0r welfare, mgulaie the exeavation, mining,
drilling, and other movement 0r removal of earth 13510“: greumi level, regulam the taking of

wazer 0r introduction 0f any substance 11110 a watsrcourse, regulate the introduction of any

subsiance or odor into the air, 0r any generatiez; of sound, and/or adop£ regulations to protect the
City’s atility infrastructure; and

'WHEREAS, the City may and c2663 proviée utility service and exercise regulatory
authority beyond its Gerporate boundaries; and

WHEREAS, {he City previously passed Resoiution which supports the


2017-9,
protection of existing residential and commercial deveiopments from adversa surface and
underground mmmg grid {racking effects both within and outside 0f the City’s boundaries; and

WHEREAS, the City desires to ensure an adequate oppm’tunity for propsxty owner and
community input, arid for {he City t0 study and develop such additional reguiatiens as my be
appropriate to ensure ihe adequate protection of the interests 0f the City and fihe residences,
landowners, and businesses of the greater Boonvills cormmmity, from activities that may
negativcly impact the City, its infrastructure and cicvekapment, property mines, and quality of
life; and

WHEREAS, the City wishes £0 restrict astivié‘ies, regardless of whether related direcfiy
or indirectly to mining operations, that pose a threat ta the public health, safety, and welfare of
the City, its regédems, its in fzastructurq and the surrounding community,

NOW, THEREFORE, BE 1T ORDAINED by the City 0f Boerwille, Indiana that:

Exhibit A
Section l. MORATORIUM ON MINING

(A) Pending further Ordinance 0f the Council, no person, firm or cmporation shall
minc 0r remove coal, gas, oil or ether minerals {ram Within {ha earporate Iimiis 0f the City 0r in
areas within éhree (3) miies outside its corporate boundaries
by either stripping, open pit, auger,
undergmunds mom and pillar, Eongwail, eut—ancl—filL block shaft, sublevei, barehole, vertical
cram, slope 0r deep mine method 0f removing coal and minerals, fracking, or of drilling for gas,
oil 0r other energy materials by any commercially known means whatsoever (coflectively
“Mining”).

(B) In addition t0 the general penaities provided by Ordinance, the City is further
authorized to take whatever injunctive relief is necessary to enjoin and restrain the
afbmmenfionfid Mining.

(C) There is hereby excepted from the prohibitions in this Section: (a) Mining that
may b3 necessary 30 as {o prepare ground far the construction 0f buildings OI fiWBHiags thereon,
if such bufidings 0r dwellings could not be constructed without the re'meval 0f the subjzicem Gr

lateral shafts, rhea sueh Mining is permissible; and (b) Mining pursmm to and to the exteni 0f a
valid, complete, 'finai, and nomappeaiabie permit, issued by the Etaéfiana Bepartment 0f Natural
Resources or U3, Office of Surface Mining Reclamation and Enforcement, and existing and
continuously in use as 0f Nevmbar 29, 20] 7,

Section .2. MORATOJUIUM 0N MINING OR BLASTING NEAR UTELI’E‘Y


INFRASTRUCTURE AND STRUCTURES

(A) Pending further Ordinance of the Council, no person, firm, or corporaticm shail
conduct or engage in Mining within one-thousand (1,000) feet 0f any of the City’s utility
infrastructure, including but not limited t0 utiliiy wells, tram:
facilities, or distributéen andfor

collection facifities (collectively “Utility Infrastmctufi’), 0r Within onc~thousand (1,060) feet 0f


any residential or commercial structure. The provisiens 0f this subsection shall apply Within the
City and wizhin three {3} miles ofthe City‘s boundaries.

(B) Pending further Ordinance 0f the Caumil, no person, firm? or corporation shall,
within oneuthousand (1,800) faet of any of the City’s Utility Infrasgxuctm'e or any resicfefitiai 0r
commercial structure, conduct or engage in blasting 0r {33,6 use 0f fixpiosives in the excavation of
iand 0r removal 0f materials from m: below the surface of the earth, without the written
permission 0f the Mayor and approval 0f the Council. The provisions of this suiasection shall
apply within the City and Wizijin three (3) miles 0f the City’s boundaries.

(C) In additien to the general penalties provided by Ordinance, fi’m City is further
aathorized to take whatever injunctive relief is necessary ti} ezijein and restrain the
aforementioned Mizaéng, blasting, 0r use 0f explosives within the City 01' Withizz three (3} miles 0f
the Ciiy’s baundaries.
Exhibit A
Section 7. Severabiiity. The pmvisions, terms, prohibitions, territory, and extent 0f this
Ordinance arc scwzrable. In the even: any one or more of the provisiorzs contained in this
Ordinance should be heid invalid, iiiegai, or unenformabla in any respect, the validity, 1egality,
and enforceability of ihe remaining provisions contaified herein shall 39%: in any way be affected
0r impaired and shall remain in fizii force and cffeci, and in Eieu Ofeach provisicm that is found t0
be iilegai, invalid, or unexfiomeable, a provision wiii be added as a part of this Ordinance that is
as similar {a the illegal, invalid, 0r unenforceable provision as may be possible agd be legal,
valid, and enforceable.

Supersediag Clause. A11 prior ordinances or parts thereof in cegflict with


Section 8.

the terms and conditions of this Ordinance are hereby repeaicd ané replaced to the extent of the-
conflict.

Section 9. Effective Date‘ This Ordinance shall be in fizlfi fore: and effect from and
passage as provided by applicable law, and shall expire on December
after its 1, 20'i8, unless

extended, amended, or replaced by .filfiher ordinance pfior to such expiration date.

?assed and adeptcd this lg day 0f Mt; anmf.’ a


2017-

COMMON COUNCIL OF THE CITY 0F


BOONVILLE, INDIANA

ATTEST.
TAMMY ORUFF
.

‘‘‘‘‘‘

Q- {lhcfiz mgr‘a-H p)
Presiffing Offi/Jé f Councii

Cierk- reasurer cwéfi {Ex 117a w (f


Prescntmi by me 1:0 the Mayor 0f the City ofBoouvill-s this clay of , 20A,
at I m.

TAMMY BORUFF, CEarkwTreaSurer

Signed and approved by me tha Mayor 0f the Ci’iy 0f Boonvilic on {his ti? day 0f
= ,20 g2 at§. ofim
$0

335482
STATE OF INDIANA ) IN THE WARRICK SUPERIOR COURT
) SS:
COUNTY OF WARRICK ) CAUSE NO. 87D02-1801-PL-000116

ALCOA FUELS, INC.,


ALCOA WARRICK LLC, and
LIBERTY MINE, LLC,

Plaintiffs,

V. Hon. Carl A. Heldt, Special Judge

CITY OF BOONVILLE, INDIANA,

Defendant.

FINDINGS OF FACT. CONCLUSIONS OF LAW. AND PRELIMINARY


INJUNCTION

This matter comes before the Court on the Plaintiffs’ motion for preliminary

injunction. The Court held a hearing and heard argument on April 25, 2018. The

Court, having taken this mfitter under advisement, and being duly advised, now

enters its Findings of Fact, Conclusions 0f Law and Injunction precluding Defendant

the City of Boonvflle from enfofcing Sections 1 and 2(A) of its Ordinance 2017-23

outside its territorial borders while this matter remains pending.

FINDINGS 0F FACT

1. Plaintiffs Alcoa Fuels, 1110., Alcoa Warrick LLC (collectively “Alcoa”),

and Liberty Mine, LLC (“Liberty”) seek a preliminary injunction to prevent the City

of Boonvflle from enforcing Ordinance 2017—23 outside the territorial borders of the

City. Neither Alcoa nor Liberty request relief related to the enforcement 0f the

ordinance Within Boonville.

Exhibit B
2. Alcoa owns the rights to coal deposits within Warrick County but outside

of Boonville, and has also contracted With other property owners in Warrick County

(but outside Boonvflle) t0 remove coal from their property for a royalty. (Complaint

‘IHI 12-15.)

3. Alcoa Fuels, Inc. supplies fuel t0 the Warrick Power Plant, which in turn

provides power and other utility service t0 Alcoa’s operations in Warrick County (the

“Warrick Operations”) including Alcoa’s aluminum smelter, rolling mill, and ingot

16-
plant, all of Which are owned and operated by Alcoa Warrick LLC. (Complaint 1H]

18.)

4. Liberty’s affiliated entities have mined coal in Warrick County for at

least the past 20 years, and its current mining work includes an operation known as

the Liberty Mine. The Liberty Mine employs over 100 people on a full-time basis,
and

extracts coal owned by Alcoa for use in generating power for the Warrick Operations.

(Complaint 1W 19-21.)

5. The Warrick Operations, and the smelter in particular, compose an

energy-intensive manufacturing operation that makes and processes aluminum, and

Alcoa requires a readily available source of coal nearby t0 successfully maintain


its

operations in Warrick County. (Complaint 1H} 22—23.)

6. Aluminum production is a globally competitive business in Which the

cost of electricity is a critical element of production, and energy costs specifically

impact the Viability 0f any particular smelter to operate against global competitors.
(Complaint 1W 22-23.)

7. On February 28, 2012, Liberty obtained a surface mining permit

(“DNR”),
(“Permit 8—366”) from the Indiana Dep artment of Natural Resources

Boonville. Liberty
allowing Liberty to mine coal in Warrick County but outside

continues mining coal today under that permit, and does so pursuant
to contracts

the Warrick Power Plant. (Complaint 29-


With Alcoa Fuels and t0 provide fuel for 1H}

30.)

8. In March 0f 2017, Liberty applied for an amendment to Permit 8-366 t0

expand its mining to include an area referred t0 as the “Liberty Mine South Field,”

which lies t0 the south of the current Liberty operations. (Complaint 1H] 31-32.)

amendment, designated as “Permit 8-366-2”, is to


9. The purpose 0f the

allow Liberty t0 extract coal in the Liberty Mine South Field


pursuant to the contract

between Liberty and Alcoa Fuels. (Complaint 1H] 31-32.)

10. The DNR approved Permit S-366—2 on January 4, 2018, thus expanding
Liberty’s permit area to include the Liberty Mine South Field. (Complaint TI 38.)

11. Boonville filed an administrative appeal of Permit S-366—2 0n February

1, 2018. The permit remains in effect and the appeal is ongoing.

12. The Liberty Mine South Field is entirely outside the corporate limits 0f

comes no closer than 2,500 feet t0 Boonville’s corporate limits, contains n0


Boonville,

residences, and contains no Boonville municipal utility infrastructure 0r facilities.

(Complaint 1W 34-37.)

13. With the exception of a small area in its northwest corner, the Liberty
entirely within the Extraterritorial Ordinance Area.
Mine South Field falls

(Complaint 11 33).

Warrick County exercises zoning jurisdiction over all unincorporated


14.

(Complaint fl 71.)
areas under the Warrick County Comprehensive Zoning Ordinance.

15. This includes the Liberty Mine South Field, which is under Warrick

County’s zoning jurisdiction. (Id.)

16. To the extent any matter set forth in the Court’s Conclusions 0f Law

incorporates and adopts


below also constitutes a Finding of Fact, the Court hereby

such matter as part 0f its Findings of Fact.

CONCLUSIONS OF LAW

1. Parties seeking a preliminary injunction generally must show by a

preponderance 0f the evidence that:

o they have a reasonable likelihood 0f success on the merits;

o their remedies at law are inadequate, causing irreparable harm

pending resolution 0f the substantive action;

o the threatened injury t0 the movants outweighs any potential

harm t0 the non—movants from the grant of the injunction; and

o the public interest would n01: be disserved by issuance of the

injunction.

Sadler v. State ex rel. Sanders, 811 N.E.2d 936, 945-46 (Ind. Ct. App. 2004).

2. The requirement to show a likelihood 0f success on the merits does not

mean the Plaintiffs must prove their case. See Pinnacle Healthcare, LLC v. Sheets, 17
N.E.3d 947, 953 (Ind. Ct. App. 2014). An injunction hearing is not a trial. See id. The

Plaintiffs must only show that they have a “reasonable likelihood 0f success at trial

by establishing a prima facie case.” Id. at 955.

3. The Ordinance that Alcoa challenges recites public health, safety, and

welfare concerns, Ordinance, p. 1, and then sets forth three prohibiting sections,

generally: (1) a moratorium on new mining activities; (2) a moratorium on mining

and blasting activity Within 1,000 feet of any of the City’s utility infrastructure or any

residential 01' commercial structure; and (3) a moratorium on new industrial uses 0f

a watercourse. Ordinance p. 2-3.

4. Each of these protections is applicable Within the City and Within three

miles of the City’s boundaries. Id.

5. The Ordinance also contains a severability provision in Section 7, which

any one 0r more 0f the provisions contained in this Ordinance


says, “[i]n the event

should be held invalid, illegal, 01' unenforceable in any respect, the validity, legality,

and enforceability of the remaining provisions contained herein shall not in any way

be affected 0r impaired and shall remain in full force and effect.”

6. The Indiana Supreme Court has adopted a severability test as follows:

A statute bad in part is not necessarily void in its entirety. Provisions within

the legislative power may stand if separable from the bad. But a provision,
inherently unobjectionable, cannot be deemed sep arable unless it appears both
that, standing alone, legal effect can be given t0 it and that
the legislature
intended the provision t0 stand, in case others included in the act and held bad
should fall.

Paul Stieler Enters., Inc. v. City of Evansville, 2 N.E.3d 1269, 1278-79 (Ind.
2014). “[I]f one section of a city ordinance 01' legislative act can be separated from the

other sections and upheld as valid, it is the duty 0f the court t0 do so.” Hobble by &

Through Hobble v. Basham, 575 N.E.2d 693, 699 (citing Smith v. George, 108 N.E.

949 (Ind. 1914)).

7. To determine the legislative intent, a "court must ask “whether or not

the Legislature would have passed the statute had it been presented Without the

Kuebel, 172
invalid features.” Paul Stieler Enters., 2 N.E.3d at 1279 (quoting State
v.

N.E.2d 45, 50 (1961)). “The presence of a severability clause provides legislative

guidance as t0 what portions 0f a statute remain in force if we declare any portion of

that statute” invalid. Id. In fact, “[t]he inclusion of a severability clause creates a

presumption that the remainder of the Act may continue in effect. The absence 0f a

severability clause creates the opposite presumption: the Le gislature intends the Act

an entirety or not at all.” Id. (quoting Ind. Educ. Emp’t Relations


t0 be effective as

Bd. v. Benton Cmty. Sch. Corp, 365 N.E.2d 752, 762 (1977)).

8. Here, the intent of the Boonville City Council is plain on the face of the

stand—alone
Ordinance. Its three prohibiting clauses are set forth in separate,

sections. See Ordinance §§ 1—3. With the severability clause in Section 7, the Boonvflle

City Council made clear its intent for each of these regulations — and each portion 0f

each regulation — to stand 0n its own, independent of whether any other provision

stood or failed. Because 0f the presumption that applies when a severability clause is

present, the plaintiffs had to demonstrate some basis upon Which the Court could

conclude that Boonville intended its tripartite ordinance t0 be an all-or-nothing


proposition. They did not. Consequently, if any part of the Ordinance is found invalid,

it cannot impact the Court's consideration 0f the remaining provisions.

9. In light of this severability provision, the Court Will address each section

0f the Ordinance sep arately.

ORDINANCE SECTION 1

10. Section 1(A) of the Ordinance specifically provides:

Pending further Ordinance of the Council, n0 person, firm 01' corporation


shall mine 0r remove coal, gas, oil or other minerals from Within
the
corporate limits of the City or in areas Within three (3) miles outside its
or
corporate boundaries by either stripping, open pit, auger, crater, slope
01' of drilling for
deep mine method 0f removing coal and minerals, fracking
gas, oil 0r other energy materials by any commercially known means
whatsoever (collectively, “Mining”).

11. Section 1 of the Ordinance is void because it would be an unlawful and

ineffective attempt to zone property outside Boonvflle’s borders.

12. Supreme Court and subsequent Court 0f Appeals cases have made clear

that if the exercise 0f power under the Public Health Statute amounts t0
an attempt

must proceed as a zoning ordinance. See City of Carmel v. Martin


at zoning, it

Marietta Materials, Ina, 883 N.E.2d 781, 786 (Ind. 2008); see also Rogers Group,
Inc.

v. Tippecanoe County, 52 N.E.3d 848 (Ind. Ct. App. 2016).

13. The Indiana Supreme Court has required municip alities t0 comply with

zoning laws if the local ordinances have the effect of restricting the areas where

mining may occur. Martin Marietta, 883 N.E.2d at 787. (dictate land use permitted

and Where)

14. Under Martin Marietta, when a city attempts to zone mining (regardless
0f Whether it admits it is engaged in zoning), it must comply with Indiana zoning laws

regardless of the police power t0 regulate the “public health.” Id.

In Martin Marietta, the Supreme Court concluded that the


Carmel
15.

ordinance was noit a zoning ordinance only because it set regulatory conditions in

Which mining could occur and did not dictate the location Where mining was allowed

01‘ forbidden. Id.

an ordinance (even one purporting to arise


16. But it also determined that

What
under the Public Health Statute) would be a void attempt t0 zone if it “dictate[s]

type 0f land use was permitted and where.” Id. at 786.

17. “In determining whether an ordinance constitutes an act of zoning, it is

important to focus upon the practical effect of the ordinance.” Sagamore Park v. City

of Indianapolis, 885 F. Supp. 1146, 1150 (S.D.


Ind. 1994) (citing Triple G Landfills,

Inc. v. Board of Comm’rs, 977 F.2d 287, 292 (SD. Ind. 1992)).

define
18. In looking at the practical effect of an ordinance, Indiana cases

land use from


zoning t0 include “those ordinances that limit or exclude a particular

an entire municipality or county.” Triple G Landfills, Inc. v. Board of Comm’rs, 7'74

F. Supp. 528, 533 (SD. Ind. 1991).

19. The test applies even when the ordinance does not entirely ban a

particular type 0f activity but purports to restrict certain land


uses t0 certain areas.

See Board of Comm’rs v. Town & Country Utilities, Ina, 791 N.E.2d 249, 255 (Ind.

G Landfills, Inc. v. Board of Comm’rs, 774 F. Supp. 528, 533-


Ct. App. 2003); Triple

use as a
34 (SD. Ind. 1991); Sagamore, 885 F.Supp. at 1150 (prohibition on
satellite
gaming facility struck down; “Likewise, the Moratorium is an act of zoning.

as a twofold request, its effect is


Regardless of Whether Defendants characterize it

permitted t0 locate in the


the same: for a 90~day period no satellite facilities will be

C—4 District. The essence of the Moratorium seems to be preserving the status quo in

an act 0f zoning”).
the face 0f a previously untested land use. This is clearly

ordinance
20. In the Martin Marietta case, the Court determined that the

how mining could be done, not where it could occur. As


at issue addressed issues of

described by the Supreme Court, the Carmel ordinance:

o “addresses water and air pollution,”

o “lateral support t0 prevent collapse of underground tunnels,”

o “uncontrolled movement 0f loose material,”

o “perimeter fencing to keep out unauthorized persons,”

o “blasting practices and the handling of explosives to minimize the

risk 0f injury 01' property damage.”

Martin Marietta, 883 N.E.2d at 783.

21. The Carmel ordinance did not, in the Court’s View, prevent owners from

restrict it to certain areas. It only set certain parameters for


using land for mining 01‘

Carmel. Martin
how mining could be conducted regardless 0f where it occurred within

Marietta, 883 N.E.2d at 785.

22. The Supreme Court recognized that an ordinance that did create

rules
restrictions on the location 0f mining would be a zoning ordinance subject t0 the

0n how municipalities must enact zoning ordinances:


“When dictating what type of
g process and follow
land use is permitted and where, a unit must employ the zonin

but not required to, uSe


the 600 Series Procedures. But beyond that, a unit may,
is

the zoning process to regulate mining.” Id. at 787.

mining as a matter of zoning, as its own zoning


23. Boonvifle itself treats

“use.” For purposes 0f zoning within its limits,


code identifies mining as a zoned

certain zones.
Boonvflle zones “mining” as a use appropriate for only

There was also n0 extraterritorial regulation of


mining in Martin
24.

d Carmel’s borders. The Supreme


Marietta, as the ordinance did not extend beyon

Statute allowed for extraterritorial


Court did not examine whether the Public Health

specific Mining Statute prevented


regulation 0f surface mining 0r whether the

extraterritorial regulation of mining by cities and towns.

25. Relying on Martin Marietta, the Court 0f Appeals has recently

invalidated an ordinance that impermissibly


attempted to zone mining in Rogers

Group, 52 N.E.3d at 849-51.

in Rogers barred “new quarries Within two


26. The invalidated ordinance

miles 0f residential areas.” Id. at 849.

The Court 0f Appeals held that the prohibition 0n quarries within two
27.

e
miles 0f residential areas was a zoning ordinance, as it “would most definitely confin

areas (two miles from ‘1'esidentia1


a certain class of use (quarries) to designated

is ‘quintessential
areas’). This, as our Supreme Court said in Martin Marietta,

zoning’” because it dictates what type 0f land use 1's permitted and Where. Id. at 851

(citing Martin Marietta, 883 N.E.2d at 787).

10
Boonville’s Ordinance has the same effect. It confines a certain class of
28.

border or 1,000 feet 0f


use (mining) t0 designated areas (three miles from
the city’s

zoning.” Id.
utility infrastructure). This amounts to an attempt at “quintessential

ds that the
29. The Rogers case distinguiéhed Martin Marietta 0n the groun

or restrict mining to specific areas


Carmel ordinance “did not ban mining completely

in the city.” Id. at 851. Instead, the Carmel ordinance “merely regulated how mining

What type of land use is


was to be conducted, Whereas a zoning ordinance ‘diqtat[es]

883 N.E.2d at 786—87).


permitted and Where [.}”’ Id. (quoting Martin Marietta,

“Because the Carmel ordinance did not ban or permit mining citywi
de
30.

was not a zoning ordinance, and the


or confine it to particular parts of the city, it

Id. (citing
noncompliance With the 600 Series Procedures was
irrelevant.”
city’s

Martin Marietta, 883 N.E.2d at 786—87).

Section 1 0f the Ordinance that Boonville promu


lgated does precisely
31.

may regulate in the


What Rogers prohibited. Regardless of any claim that Boonville

0f “public health,” established Indiana law preve


nts it from using this power t0
name
es for the enactment of zoning
evade the responsibilities the Genera] Assembly impos

the effect of zoning property, a


provisions. If a “public health” ordinance has

municipality must follow zoning procedures. Roger


s Group, 52 N.E.3d at 851.

32. Here, Section 1 of Boonvifle’s Ordinance is an improper attempt at

zoning because it purports t0 dictate Where mining may occur.

Ordinance an attempt to zone property


33. The fact that Section 1 0f the is

renders it void in four different respects.

11
First, Boonvflle did not engage in the appro
priate process for enacting
34.

a’s zoning code. See IND. CODE


a zoning ordinance under the “600 Series” 0f Indian
§

The Home Rule Act states that When there is a specific manner
36-7-4—600, et seq.

a must exercise the power in that manner. Ind. Code § 36-


for exercising a power, city

1-3—6.

To enact a zoning ordinance, the 600 Series required Boonville


to:
35.

refer the Ordinance t0 the plan commission having jurisdiction in

order for the plan commission to prepare the Ordinance

consistent with the re quirements of the enabling


statutes and the

local comprehensive plan;

t0 interested
provide notice to the public by publication and

parties directly as t0 the subject matter 0f the


Ordinance, the

place of a
geographic area affected, and the date, time, and

sche duled public he aring;

conduct the public hearing, at which any person must


be allowed

to give evidence for 01' against the proposal;

allow the plan commission to make an advisory decision according

t0 statutorily required criteria; and

have the plan commission certify the proposal t0 Boonville’s

1e gislative body.

IND. CODE §§ 86-7-4—601, -602, -603,


~604 & —605.
before could adopt
Boonville needed t0 take all these mandatory steps
it
36.

12
a valid zoning ordinance.

steps the 600 Series


37. Boonville followed none of these mandatory

requires to enact a valid zoning ordinance. Compl


aint 1W 70, ’76.

Boonville’s failure t0 use the zoning process rende


rs Section 1 0f the
38.

& Country, 791 N.E.2d at 255; Triple G, 774 F.


Supp. at 533-
Ordinance void. Town

Court stated in the Martin


34; Sagamore, 885 F.Supp. at 1150. As the Supreme

a number 0f explicit procedural


Marietta case, “the General Assembly has set forth

powers and Martin Marietta


requirements for local units 0f government to exercise
its

mandates 0f the statutes as t0 the enactment of


is certainly correct that the

be valid.” Martin Marietta, 888


ordinances must be followed for those ordinances t0

N.E.2d at 784 (emphasis added).

required for zoning


39. Second, Boonville did not engage in the process

outside its territorial boundaries.

To extend zoning jurisdiction beyond its borders, Boonville would have


40.

CODE 36-7-4—205(f) ofits decision


to: (1) provide notice t0 Warrick County under IND. §

does not) t0 exercise zoning


(if it provides municip a1 services t0 the area) or desire (if it

and enact a zoning ordinance that


jurisdiction in the unincorporated territory; (2)

the first order of business in


claims zoning rights in any such areas, Which
is

CODE 36—7-4-601(a) and (b) is t0 declare


establishing a zoning ordinance under IND. §

the jurisdictional territory.

Boonville has taken none 0f these steps. Instead,


Boonville’s own zoning
41.

does not extend outside its borders. Boonvflle Zoning Ordinance


code states that it

18
2.1060, 2.1096, & 2.1217.

erritorial land use


42. Boonville has expressly chosen not to exercise extrat

to zone outside its borders and


jurisdiction. It has taken none of the required steps

outside Boonville’s
has never enacted an ordinance that “designates” territory

borders as “the geographic area over which [its] plan commission shall exercise

jurisdiction.” IND. CODE § 36—7-4-601.

iction over the


43. Third, Warrick County already exerts zoning jurisd

territory at issue. (Complaint {I 71.) That jurisdiction cannot be unilaterally usurped

by Boonvflle. (Id.)

g ordinances that
44. Fourth, the General Assembly expressly forbids zonin

“prevent, outside 0f urban areas, the complete use and alienation of any mineral

resources or forests by the owner 0r alienee of


them.” IND. CODE § 86-7-4—1103(c).

45. An “urban area” is defined as “all lands and lots within the corporate

used for residential purposes


boundaries of a municipality, any other lands lots
01'

Where there are at least eight (8) residences within any quarter mile square area, and

lots that have been or are planned for residential areas contiguous to
other lands 01‘

the municipality.” IND. CODE § 36—7-4—1103(b).

46. The Liberty Mine South Field is not located in an urban area.

Complaint 1[
79.

Boonville asserts that this statute only applies to


ordinances enacted
47.

under Indiana’s zoning code. Boonville asserts it enacted the Ordinance under the

as previously discussed, the


Public Health Statute, not Indiana zoning law. But

14
Indiana’s zoning law, including
Ordinance is an attempt at zoning that is governed by

36-7-4—1103(b). Boonville cannot re-characterize its attempt t0 zone as


IND. CODE §

when was required t0 apply the procedures 0f


arising through a different statute it

Indiana zoning law to enact the Ordinance.

ORDINANCE SECTION 2

48. Section 2(A) 0f the Ordinance specifically provides:

or corporation
Pending further Ordinance 0f the Council, no person, firm,
housa nd (1,000) feet 0f any of
shall conduct or engage in Mining within one—t
d to utility wells,
the City’s utility infrastructure, including but not limite
ies (collectively,
treatment facilities, 0r distribution and/or collection facilit
feet of any
“Utility Infrastructure”), or within one—thousand (1,000)
residential or commercial structure. The provis
ions 0f this subjection shall
of the City’s boundaries.
apply within the City and Within three (3) miles

49. Section 2(B) of the Ordinance specifically provides:

or corpo ration
Pending further Ordinance of the Council, no person, firm,
of the city’s Utilit y
shall, within one—thousand (1,000) feet of any
ure, conduct or engage
Infrastructure or any residential or commercial struct
or removal of
in blasting or the use of explosives in the excavation of land
ut the written
materials from or below the surface of the earth, Witho
permission of the Mayor and approval of the Council.
The provisions 0f this
three (3) miles of the City’s
subsection shall apply within the City and Within
boundaries.

in
50. Section 2(A) is a lesser-included regulation 0f the conduct regulated

Section 1 0f the Ordinance and is void for the same reasons that Section 1 is void.

to Section 2(B) is whether


51. The first question the Court must address as

Boonville has the authority to exercise its powers in the manner set forth in that

section of the Ordinance outside its boundaries.


The Court concludes that Boonville

is so authorized.

n relative t0 the
52. In addition to Boonville’s extraterritorial authorizatio

15
Public Safety Statute, Indiana Code § 36-9-2—18 authorizes a local unit to establish,

and maintain water and sewer utility services within its


provide, regulate,

corporate boundaries. Under the Home


boundaries and up to four miles outside its

Rule Act, Boonville has “all powers granted it by statute” ~ such as exercising utility

— and “all other powers necessary 01' desirable in the conduct of its
jurisdiction

That Within
even though not granted by statute.” IND. CODE § 36-1-3-4(c). is,
affairs,

provide extraterritorial utility service is the power t0 protect


Boonville’s power to

potential effects 0f the plaintiffs’


the Utility Infrastructure from actual, feared, 0r

mining operations. The plaintiffs argue that the


blasting operations attendant t0 its

does not include such drag along


express grant 0f extraterritorial utility authority

se n0 such power is enumerated. This


rights as protecting the infrastructfire becau

antithetical to the Home Rule Act, Which provides that “the


argument, however, is

.” IND.
omission of a power from such a list does not imply that units lack that power

CODE§ 36-1-3-4(c). A unit’s ability t0 protect its infrastructure is inherently


and it is not Within the power of the court t0 question
“necessary” and “desirable,”

wisdom 0r motives in doing so. See Town ofAvon v. W. Cent.


Boonville’s

Conservancy Dist, 957 N.E.2d at 605.

2(B)’s limitation on blasting was


53. The second question is Whether Section

was not. Section 2(B) is presumed


a zoning ordinance. The Court concludes that
it

ed in Boonville’s
valid, Town ofAvon, 957 N.E.2d at 607, and any doubt must be resolv
the Supreme Court in the
favor. Martin Marietta, 883 N.E.2d at 784. As explained by

dictates “What type of land


Martin Marietta case, a quintessential zoning ordinance

16
applies into
permitted and where” and “divides the jurisdiction t0 which
it
use is

several districts, specifying the use or uses of land


permitted in each.” Martin

d). Section 2(B) 0f the


Marietta, 883 N.E.2d at 787 (internal Citations omitte

Ordinance does not do that; instead, it simply creates a 1,000-f00t buffer between any

blasting activity and the City’s Utility Infrastructure


01' any commercial 01‘ residential

structure. Notably, Carmel’s ordinance, Which was not a zoning ordinance, included

Retail ordinance imposed a


regulations on blasting. Id. at 782. And, the Uniontown

1,000-f00t buffer “from those Whom the ordinances were designed to protect.” 950

N.E.2d at 338. There is no substantive distinction between the buffer in Uniontown

Retail and the buffer here. Section 2(B) is a valid exercise 0f Boonville’s powers,

it is not a
express and implied, t9 regulate, protect, and maintain utilit
y services;

zoning ordinance.

t With state law.


54. Section 2(B) does not create an impermissible conflic

“An impermissible conflict With state law W111 be found if the Ordinance seeks to

s.” Indiana Dep’t of Natural Res. v.


prohibit that which a statute expressly permit

to occupy
Newton County, 802 N.E.2d 430, 433. However, if the state has not chosen

governments may "impose


an area to the exclusion of municipal regulation, local

additional, reasonable regulations, and supplement burdens imposed by non—penal

consistent With the statutory


state law, provided the additional burdens are logically

purpose.” Id.; see also Hobble, 575 N.E.2d at 697, and Yater
v. Hancock County

Planning Comm’n, 614 N.E.2d 568, 575 (Ind. Ct. App. 1993).

14-84-12-1, et seq., addresses blasting, which is the


55. Indiana Code §

17
subject matter of Section 2(B). Nothing in the
Ordinance’s provisions that limit

re frustrates the purposes 0f


blasting Within 1,000 feet 0f any Utility Infrastructu

ional, reasonable regulations,


these provisions. At most, Section 2(B) addresses “addit

state law” that “are logically


and supplement burdens imposed by non-penal

Dep’t of Natural Rea, 802 N.E.2d


consistent with the statutory purpose.” See Indiana

at 433; Hobble, 575 N.E.2d at 697. There is n0 basis upon Which Section 2(B) of the

“would leave large areas 0f this


Ordinance can be preempted, and to find otherwise

field wholly unregulated -


and unregulable [sic].” Town ofAvon, 957 N.E.2d at 608.

56. The fact that DNR requires a permit for coal mining does not, ipso facto,

§ 36-1—3-8(a)(7).
It is commonplace
render Section 2(B) invalid under Indiana Code

to regulate the same conduct, a fact that has been


for both state and local agencies

both recognized and approved 0f by our appellate courts


on several occasions. See,

regulation of watercourse not


e.g., Town of Avon, 957 N.E.2d at 607 (municipal

preempted by DNR regulation of watercourses); Board of Com’rs v. Town & Country


(landfill operator had to
Utilities, Ina, 791 N.E.2d 249, 256-57 (Ind. Ct. App. 2003)

); Hendricks Co. Bd. of


comply With both state permitting process and county zoning
could
Zoning Appeals v. Barlow, 656 N.E.2d 481, 485 (Ind. Ct. App. 1995) (county

restrict possession of Wild or exotic animals despite parallel state licensing program

relating to same); Yater, 614 N.E.2d at 576 (county


ordinance restricting access t0

highways was valid despite the state’s right to d0 the same).


state

there must be a statement of intent by


57. To preempt all local regulation,

tion at the state level must be


the General Assembly t0 occupy the field or the regula

18
no room for additional local regulation. Given the
so comprehensive that there is

relative to utility service and


express extraterritorial grant of statutory authority

in the statutory scheme 0f


dangerous conduct, neither exists in this case. Nothing

DNR’S regulations suggests that local governments are powerless to place any

is not preempted.
restrictions 0n blasting activities. Section 2(B)

plaintiffs failed to establish a reasonable


58. The Court concludes that the

likelihood of success 0n the merits With respec


t t0 Section 2(B) 0f the Ordinance.

failed in that element, the plaintiffs are


not entitled t0 a preliminary
Having

injunction with respect to Section 2(B) of the Ordin


ance.

ORDINANCE SECTION 3

59. Section S(A) 0f the Ordinance provides:

or corporation
Pending further Ordinance of the Council, no person, firm
corporate
shall,Within the City or Within three (3) miles outside 0f its
divert water from a
boundaries, Withdraw water from a watercourse,
(including but not
watercourse, or discharge fluids 01' other byproducts
limited to water previously withdrawn 0r diverted
from the watercourse and
part 0f 0r in conjunction
recycled 01‘ reintroduced into the watercourse), as
course Use”),
With industrial operations (collectively “Industrial Water
Whether 01' not such industrial operations are Mining 0r
Mining related
val 0f the
activities,Without the written permission of the Mayor and appro
Council.

60. Again, the first question is Whether Boonvifle has the authority t0

manner set forth in Section 3(A) 0f the Ordinance outside


exercise its powers in the

is so authorized.
its boundaries. The Court concludes that Boonville

61. Under the Indiana Code, governmental units “may establish, vacate,

19
CODE 36-9-2-8. Within that authority,
maintain, and control watercourses.”1 IND. §

units can do the following: (1) “change the channel of, dam, dredge, remove an

obstruction in, straighten, and Widen a watercourse,” IND. CODE § 36-9-2-9; (2)

“regulate the taking of water, 0r causing 01' permitting water to escape, from a

te conduct that might “affect the flow


watercourse,” IND. CODE § 36-9—2-10; (3) regula

0f water in a watercourse,” IND. CODE § 36-9—2—11; (4) “regulate the introduction 0f

CODE § 86—9—2-12; and


into a watercourse 0r onto its banks,” IND.
(5)
any substance

CODE § 36-9-2—13. This express authority


“purify the water in a watercourse,” IND.

extends to 10 miles outside a unit’s corporate boundaries


. IND. CODE § 36-9-2—19.

this municipal authority over


And, the Indiana Supreme Court has determined that

watercourses is not preempted by DNR. Town ofAvon, 957 N.E.2d at 608.

plain that Boonville has the authority t0 regulate


watercourses
Consequently, it is

at 605-06.
as set forth in Section S(A) of the Ordinance. See id.

argued that Boonville cannot exercise its expressly


62. The plaintiffs

es because Warrick County


authorized extraterritorial jurisdiction over watercours

es. The Court disagl‘ees.


already has an existing regulation 0n watercours

68. The Warrick County ordinance is a storm water ordinance, not an

ordinance regulating industrial uses 0f watercourses.


Although there may be some

overlap, regulating storm water discharge and regulating the industrial use of

ent statutes, IND. CODE § 36-9-


watercourses are different things falling under differ

no longer includes an
1
A “watercourse” includes “lakes, rivers, streams, and any other body ofwater,” but

underground aquifer or water in an underground aquifer. IND. CODE 1


§ 36-9—1— 0.

2O
first~in-time rules d0 not apply When dealing With
2; IND. CODE. § 8-1.5—5, and

d the other. Town of


different subjects and neither the City nor County has preclude

1019 (Ind. Ct. App. 2013). Even


Newburgh v. Town of Chandler, 999 N.E.2d 1015,

rms that not exclusive of other local


the County’s storm water ordinance confi
it is

14, Section 21 (codified at 53.19 of Warrick


laws. Warrick County Ordinance 2006-
§

County Code).

by the plaintiffs are


64. The Warrick County storm water ordinances cited

ose and intent 0f that


codified in Chapter 53 0f the county code. The stated purp

welfare 0f the citizens 0f


chapter “is t0 provide for the health, safety, and general

storm water discharges to the storm


Warrick County through the regulation of

as required by federal and


drainage system to the maximum extent practicable

state law.” Warrick County Code § 53.01. Warrick County regulates the

“to
introduction 0f pollutants into the muni
cipal separate storm sewer system

Pollutant Discharge Elimination System


comply with requirements of the National

County requires all industrial


To that end, Warrick
(NPDES) permit process.” Id.

permit. Id. at 53.07.


NPDES permit holders to comply with the provisions of the
§

applies to “all water entering the stor


m drainage system generated 0n
The chapter

lands,” Id. at § 53.08, and the “storm drainage


any developed and undeveloped

defined as “publicly—owned facilities by


Which storm water is collected
system” is

53.02. Within that scope, the county


code also directs
and/or conveyed...” Id. at §

free 0f trash, debris, excessive vegetati


on or other
landowners to keep watercourses

would pollute, contaminate, 0r significantly impede the flow 0f water


obstacles that

2.1
through the watercourse. Id. at § 53.10. Finally, the code confirms that it does not

the City: “The remedies listed in


preclude regulation by other local agencies such as

available under any applicable


the chapter are not exclusive 0f any other remedies

federal, state or local law and it is Within the discretion of the authorized

enforcement agency t0 seek cumulative remedies.” Id.


at § 53.19

s tension
65. Nothing in Section 3(A) of the Ordinance conflicts or cause

am. Boonville, in a proper


With Warrick County’s storm water management progr

declared a moratorium on new


exercise 0f its extraterritorial watercourse authority,

uses of a watercourse that “would Withdraw water


from a watercourse, divert water

other byproducts as a part of or in


from a watercourse, 0r discharge fluids 01‘ . . .

or not the industrial 0p erations


conjunction With industrial operations, whether

related t0 Mining 01’ Mining related activities,” if within the City’s boundaries 0r

boundaries. Ordinance § 8(A). This moratorium on


within three miles outside its

Industrial Watercourse Use has nothing to do With Warrick County’s storm

drainage system requirements 0r its NPDES permitting process, and by its plain
rt to exert exclusive occupation
terms the Warrick County ordinance does not purpo

0f the field.

this, the
66. When two units exercise their authority nonexclusively like

and the
question is Whether the objects and purposes of Warrick County Code

unit’s exercise of statutorily


Ordinance are in conflict such that allowing each

Home Rule Act. See Ryan Homes,


conferred powers would be inconsistent with the

Inc. v. Town of Cumberland, 742 F.2d 1115, 1118 (7th Cir. 1984) (in determining

22
complies with the governing State and federal coal mining regulations. Yet the

City’s ordinance would override those laws and replace them with the City’s own

attempt to halt the mine project. None of Alcoa’s operations are within the City

limits. But the City’s ordinance impinges on Alcoa’s ability to obtain the coal needed

for its energy-intensive operations in Warrick County. As the trial court found,

Alcoa has no legal remedy for the injuries the City’s ordinance would inflict on

Alcoa. Pursuant to Ind. Appellate Rule 56(A), Alcoa respectfully requests that the

Supreme Court accept immediate jurisdiction of Alcoa’s interlocutory appeal of the

trial court’s order denying in part Alcoa and Liberty Mine LLC’s motion for a

preliminary injunction (the “Order”) to promptly resolve the immediate and

significant harm to Alcoa and address the matters of public interest raised by this

appeal.

BACKGROUND

The Ordinance

The City enacted an ordinance (the “Ordinance”) that creates a moratorium

on mining not just within the City’s borders, but in areas surrounding it. 1 The

Ordinance does so through three operative provisions. Section 1 of the Ordinance

imposes a “moratorium” on the removal of “coal, gas, oil, or other minerals.”

(Ordinance § 1.) This prohibition applies within the City as well as “areas within

three (3) miles outside its corporate boundaries.” (Id.) It bans mining in this

territory, including the area three miles outside the City. (Id.)

1 A copy of the Ordinance is attached as Exhibit A.

2
and operated by Alcoa Warrick LLC (the “Warrick Operations”). Alcoa also

maintains a power plant that provides power and other utility services to Alcoa’s

operations. (Order ¶¶ 5-6.) None of the Warrick Operations are within the City. (Id.)

The Warrick Operations (and the smelter in particular) are an energy-

intensive manufacturing operation that makes and processes aluminum. (Id.) Alcoa

requires a readily available source of coal nearby to successfully and predictably

maintain its operations in Warrick County. (Id.) Absent readily available energy,

the Warrick Operations (and the many jobs it provides) would be imperiled. (Id.)

Alcoa sells aluminum in a global market. (Id.) The cost of electricity is a

critical element of production, and high energy costs harm the ability of any

aluminum plant to remain viable against global competitors. (Id.)

The Mining Permit

Coal mining has been a feature of life in Warrick County for decades. (Order

¶ 4.) Liberty Mine LLC’s affiliated entities have mined coal in Warrick County for

at least the past 20 years, and its current mining work includes an operation known

as the Liberty Mine. The Liberty Mine employs over 100 people on a full-time basis,

and extracts coal owned by Alcoa for use in generating power for the Warrick

Operations. (Complaint ¶¶ 19-21.)

Alcoa owns the rights to coal deposits within Warrick County but outside of

the City, and has contracted with other property owners in Warrick County (but

outside the City) to remove coal from their property for a royalty. (Order ¶ 2.)

Alcoa and Liberty need to obtain coal from these deposits in order to satisfy

4
substantially farther than one mile from the City’s corporate limits. (Complaint ¶¶

38-39.) The Ordinance, by contrast, extends the parameter for blasting to three

miles around the City’s borders. (Ordinance § 2.)

The City filed an administrative appeal of Permit S-366-2 on February 1,

2018. The permit remains in effect, and the administrative appeal is ongoing.

The Ordinance prevents the mining activity that the DNR authorized by

Permit S-366-2.

The Order

After unsuccessfully attempting to resolve the issues through mediation and

settlement discussions, Alcoa and Liberty Mine challenged the Ordinance and

sought a preliminary injunction. On July 9, 2018, the trial court entered the Order

and held that:

 Section 1 of the Ordinance unlawfully prohibited any mining within

three miles of the City in violation of Indian’s zoning requirements and

exceeded the City’s powers under the Home Rule Act;2

 Section 2(b) of the Ordinance lawfully allowed the City to prohibit the

use of blasting for mining outside the City’s borders; and

 The City could limit the use of watercourses for mining under Section 3

of the Ordinance.3

2 The trial court also enjoined a similar extraterritorial provision that


prevented mining within 1,000 feet of the City’s utility infrastructure located
outside the City’s borders. (Ordinance § 2(b).)

3 A copy of the Order is attached as Exhibit B.

6
will occur wholly outside the City’s borders. The Order allowed the City to target

the mine by prohibiting Alcoa and Liberty Mine from making use of nearby

watercourses (a necessary part of the mining process) and by curtailing blasting

near the City’s utility infrastructure. This appeal therefore addresses three

substantial questions of law: (1) whether the City may regulate watercourses and

blasting despite existing federal and State regulation of both activities, including a

State-issued mining permit and required water permits; (2) whether the Order gave

municipalities a new form of extra-territorial power over mining that is not

authorized by the Home Rule Act; and (3) whether the City usurped the existing

regulation of watercourses by Warrick County.

A. The Ordinance Impermissibly Interferes With State And


Federal Regulation.

Under the Home Rule Act, a local government may not “regulate conduct that

is regulated by a state agency, except as expressly granted by statute.” Ind. Code §

36-1-3-8(a)(7). The Ordinance’s prohibition on the use of watercourses in mining

and its extraterritorial regulation of blasting violate this preemption provision in

the Home Rule Act by purporting to prevent activities expressly authorized by State

agencies. Id.

The City’s attempt to regulate watercourses contradicts at least four State or

federal permitting programs that control the use of watercourses for surface mining:

 Indiana’s implementation of the federal Surface Mining Control

and Reclamation Act (“SMCRA”) imposes a duty on permittees

to minimize disturbance of groundwater and surface water,

8
“‘An impermissible conflict with state law will be found if the Ordinance seeks to

prohibit that which a statute expressly permits.’” Indiana Dep’t of Natural

Resources v. Newton County, 802 N.E.2d 430, 433 (Ind. 2004) (quoting Hobble v.

Bashman, 575 N.E.2d 693, 697 (Ind. Ct. App. 1991)). That is precisely what the

Ordinance does by preventing a mine operation already approved by the State.

While the Court has previously determined that the DNR’s general oversight

of aquifers did not preempt a town’s regulation of withdrawals from aquifers, it has

never allowed a local government body to override the express permitting decisions

of a State agency. Compare Town of Avon v. W. Cent. Conservancy Dist., 957 N.E.2d

598, 607 (Ind. 2011) with Newton County, 802 N.E.2d at 433. The Avon case did not

involve an activity expressly permitted by the State. In Avon, the DNR had the

authority to identify aquifers that could not be tapped by those hoping to use the

underground water. Avon, 957 N.E.2d at 608. But the DNR had not actually

exercised that power in regard to the aquifer at issue in Avon. If it had, the case

would have had a different result. Id. Nothing in Avon—or any of this Court’s other

cases—allows local governments to override the decisions of State regulators to

issue permits. Avon, 957 N.E.2d at 607-08. The Home Rule Act itself expressly

forbids this type of local regulation of State and federal matters by divesting cities

of “[t]he power to regulate conduct that is regulated by a state agency, except as

expressly granted by statute.” Ind. Code § 36-1-3-8(a)(7).

The Order also upheld the City’s ability to regulate the “blasting” used in

surface mining. But that activity is also expressly allowed by the permit issued by

10
mining may occur without following the required steps for promulgating a zoning

ordinance (a process the City ignored in enacting the Ordinance). (Order ¶¶ 32-33.)

This Court expressly held as much in City of Carmel v. Martin Marietta Materials,

Inc., 883 N.E.2d 781, 786-87 (Ind. 2008) (“When dictating what type of land use is

permitted and where, a unit must employ the zoning process and follow the 600

Series Procedures.”).4

The City seeks to circumvent this Court’s earlier holding in Carmel by using

watercourses as a stalking horse. The Ordinance purports to regulate the use of

“watercourses” as part of mining and to do so outside the City’s borders. This

language purports to prevent any withdrawal of water from a watercourse or

discharge of material into a watercourse for an “industrial use,” which is defined to

include mining. (Ordinance § 3.)

This provision of the Ordinance is another thinly veiled mining ban. It has

the purpose and effect of impermissibly regulating mining outside the City’s

borders. Mining cannot occur without access to any watercourse. The Ordinance

restricts the “industrial” use of watercourses, which includes using a watercourse to

engage in mining, which effectively prohibits mining. (Complaint ¶ 48; Ordinance §

3.)

The City cannot do by proxy what it cannot do directly. It cannot use a

purported regulation of watercourses as an end-around to the restrictions on its

4 In Carmel, the municipality made no attempt to regulate outside its own


borders. That case therefore did not address whether a municipality may engage in
extraterritorial regulation of mining. Similarly, there was no state permitting
requirement for the quarry at issue in Carmel. See id. at 786-87.

12
Warrick County took exclusive jurisdiction over the watercourses within its

territory (and outside the City). The Home Rule Act does not allow two units to

exercise the same power over the same subject at the same time. Ind. Code § 36-1-3-

5. “Under Indiana law, there cannot be two municipal corporations for the same

purpose with coextensive powers of government extending over the same territory.”

Ryan Homes, Inc. v. Town of Cumberland, 742 F.2d 1115 (7th Cir. 1984). One must

prevail over the other.

This Court has resolved this type of conflict by giving exclusive jurisdiction to

the entity that first exercised jurisdiction over a territory. See City of N. Vernon v.

Jennings Northwest Reg’l Utils., 829 N.E.2d 1, 2 (Ind. 2005); see also Town of

Merrillville v. Merrillville Conservancy Dist., 649 N.E.2d 645 (Ind. Ct. App. 1995).

Since 2006, Warrick County has regulated watercourses within its

jurisdiction. It decided to exercise that power by limiting certain discharges into

watercourses. It declined to impose additional regulations and allows entities like

Alcoa and Liberty to withdraw water from watercourses. Once it exercised

jurisdiction over the watercourse, Warrick County alone had the right to make that

decision. City of N. Vernon, 829 N.E.2d at 2. By being first-in-time, Warrick County

gained the exclusive power to decide what restrictions are appropriate (and which

are not) for Warrick County’s watercourses.

The Ordinance is a second-in-time attempt to undo Warrick County’s choices

by imposing additional requirements on the use of the County’s watercourses. The

City cannot override the powers of another unit of government. Ind. Code § 36-1-3-5.

14
as much: “Without a preliminary injunction, the Plaintiffs face months without

being able to put their property to a use already approved by the DNR. Because of

government immunities and other barriers to suit, the Plaintiffs cannot simply seek

damages for Boonville’s decision to handcuff Alcoa from putting its land to this

permitted use and Liberty from exercising its contractual rights.” (Order ¶ 102.)

The only protection Alcoa has is a preliminary injunction. The trial court

granted that relief only in part. It failed to entirely enjoin the enforcement of the

Ordinance and prevent the accompanying injuries to Alcoa. Prompt resolution of

the appeal is needed to prevent the irreparable harm the trial court identified but

did not enjoin.

CONCLUSION

Because the Order raises questions of law that require prompt and final

resolution by the appellate courts, as well as and the immediate threat of significant

irreparable injury, Alcoa respectfully requests that the Court accept jurisdiction

over Alcoa’s appeal of the Order.

Respectfully submitted,

s/Mark J. Crandley
E. Sean Griggs (Atty. No. 17716-49)
Mark J. Crandley (Atty. No. 22321-53)
BARNES & THORNBURG LLP
11 South Meridian Street
Indianapolis, Indiana 46204
Telephone: (317) 236-1313
Facsimile: (317) 231-7433
Email: sgriggs@btlaw.com
Email: mcrandley@btlaw.com

16
VERIFICATION

Pursuant to Indiana Appellate Rule 340:), I verify LhaI. Lhe Facts set, forth in

the foregoing Verified Motion are true and correct.

@JJL
Adam Ticman

18
Distribution to all counsel of record

DMS 12287227v2

32