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COA affirms Avon ordinance invalid

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The Town of Avon’s attempt to regulate by ordinance a township and conservancy district’s ability to remove and sell groundwater located in a park failed because the ordinance violated Indiana law, the Indiana Court of Appeals held today.

The West Central Conservancy District was in the process of studying and attempting to provide a water supply based on the discovery of water aquifers under Washington Township’s Community Park when Avon enacted an ordinance to control and regulate taking of water from a watercourse. The ordinance gave Avon the exclusive right to control and regulate water within 10 miles of the town’s municipal limits and only the town could sell and distribute water. The ordinance defined watercourses, but the statute the ordinance relies on doesn’t mention groundwater, aquifers, or any water that is below ground.

The WCCD and township sued claiming the ordinance violated the Home Rule Act because only state agencies can regulate surface and groundwater. The trial court granted summary judgment in favor of WCCD and the township.

Avon can regulate watercourses, but its regulation in the instant case hinges on whether an aquifer is a “watercourse” under Indiana law. In Town of Avon v. West Central Conservancy District, et al., No. 32A05-1003-PL-149, the Court of Appeals upheld the lower court’s decision, finding aquifers are not considered a “watercourse” under Indiana Code Section 36-5-2-10.

“More particularly, the Park’s aquifers and groundwater are not lakes, rivers, or streams, and the definition of ‘watercourse' in Indiana Code section 36-9-1-10 necessarily includes only bodies of water like lakes, rivers, and streams. Indeed, the General Assembly would have simply used the term ‘water’ or even ‘aquifers’ or ‘groundwater’ in the Watercourse Statutes if it intended such a broad sweep,” wrote Chief Judge John Baker.

Because an aquifer is not a watercourse, Avon has no authority to restrict what the WCCD and township choose to do with the groundwater in the aquifers.

In addition, the appellate court held the Home Rule act doesn’t grant Avon the authority to regulate in accordance with its inherent police powers and the town lacks the authority to review, regulate, or impose duties on the WCCD or township’s exercise of power to sell the groundwater under the Park Resource Statute. Avon can’t interfere with WCCD and the township’s common law right to use the groundwater in its aquifers as it sees fits, wrote the chief judge.
 

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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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