                                                                        Feb 24 2016, 9:01 am




ATTORNEYS FOR APPELLANTS                                   ATTORNEY FOR APPELLEE
Allison Wells Gritton                                      Benjamin J. Church
Wooden McLaughlin LLP                                      Assistant Corporation Counsel
Indianapolis, Indiana                                      Office of Corporation Counsel
                                                           Indianapolis, Indiana
Rosemary G. Spalding
Sharon A. Hilmes                                           ATTORNEYS FOR AMICI CURIAE
Spalding & Hilmes, PC
                                                           Jo Angela Woods
Indianapolis, Indiana
                                                           Indiana Association of Cities &
ATTORNEYS FOR AMICI CURIAE                                 Towns and Indiana Municipal
ACLU OF INDIANA, CITIZENS                                  Lawyers Association
ACTION COALITION OF INDIANA,                               Stephen C. Unger
AND COMMON CAUSE INDIANA                                   Bradley M. Dick
Gavin M. Rose                                              Bose McKinney & Evans LLP
ACLU of Indiana                                            Indianapolis, Indiana
Jennifer Washburn
Citizens Action Coalition, Inc.
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Graphic Packaging Int’l, Inc.;                             February 24, 2016
Rock-Tenn Converting Co. and                               Court of Appeals Case No.
Cathy Weinmann,                                            49A04-1504-PL-165
Appellants-Plaintiffs,                                     Appeal from the Marion Superior
                                                           Court
        v.                                                 The Honorable Cynthia J. Ayers,
                                                           Judge
City of Indianapolis and the City                          Trial Court Cause No.
of Indianapolis Public Works,                              49D04-1409-PL-29775
Appellees-Defendants


Court of Appeals of Indiana | Opinion 49A04-1504-PL-165 | February 24, 2016                    Page 1 of 19
      Baker, Judge.


[1]   In 2012, the City of Indianapolis amended a contract with the company that

      provides city residents with waste disposal services. The amendment went

      above and beyond the provisions of services, however, as it required the

      construction and maintenance of a $45 million facility. By including provisions

      related to the design, construction, and maintenance of this new facility, the

      amendment fell under the purview of section 4 of the Waste Disposal Statute,

      which requires, among other things, public bidding and public participation in

      the process. That did not occur. Therefore, the contract is void for failing to

      comply with the statute.


[2]   Graphic Packaging International (Graphic Packaging), Rock-Tenn Converting

      Co. (Rock-Tenn), and Cathy Weinmann (collectively, the Plaintiffs) appeal the

      trial court’s order granting summary judgment in favor of the City of

      Indianapolis (the City) and the City of Indianapolis Board of Public Works (the

      Board) (collectively, the Government) on the Plaintiffs’ complaint against the

      City. The Plaintiffs argue that the trial court erred by concluding that:

                 (1)      there is no private right of action to raise these claims
                          against the City under

                          (a)      the Waste Disposal Statute;1




      1
          Ind. Code ch. 36-9-31.



      Court of Appeals of Indiana | Opinion 49A04-1504-PL-165 | February 24, 2016     Page 2 of 19
                          (b)      the Public Lawsuit Statute;2 or
                          (c)      the Uniform Declaratory Judgment Act;3

                 (2)      the Plaintiffs do not have standing under

                          (a)      traditional standing analysis; or
                          (b)      the public standing doctrine; and

                 (3)      the contract at issue does not violate the Waste Disposal
                          Statute.


      We find that the Plaintiffs have a right of action under the Waste Disposal

      Statute, that they have standing under the public standing doctrine, and that the

      contract at issue violates the Waste Disposal Statute as a matter of law.

      Therefore, we find that the trial court erred by awarding summary judgment in

      favor of the Government, reverse that judgment, and remand with instructions

      to enter summary judgment in favor of the Plaintiffs.


                                                      Facts     4




[3]   In late 1985, the City entered into a contract (the Original Agreement) with

      Massburn, Inc., the predecessor of Covanta Indianapolis, Inc. (Covanta), for

      the disposal of solid waste through waste-to-energy incineration technology. As

      part of the Original Agreement, Covanta agreed to receive and dispose of all

      acceptable solid waste provided to it by the City. The service was to be



      2
          Ind. Code ch. 34-13-5.
      3
          Ind. Code ch. 34-14-1.
      4
        We held oral argument in Indianapolis on February 10, 2016. We thank counsel for the parties and amici
      for their excellent written and oral presentations.

      Court of Appeals of Indiana | Opinion 49A04-1504-PL-165 | February 24, 2016                   Page 3 of 19
      performed at a facility designed, constructed, owned, maintained, and operated

      by Covanta. Construction of the facility began in 1985, and it was fully

      operational in 1989.


[4]   In 2008, the City and Covanta amended the Original Agreement (the First

      Amendment). The First Amendment extended the term of the contract until

      2018, with two optional five-year extensions available. The First Amendment

      also required the City to deliver a certain volume of waste to Covanta or pay a

      penalty (a “put or pay” contract).


[5]   On August 6, 2014, the Government approved another amendment to the

      Original Agreement (the Second Amendment). The Board did not hold a

      public meeting or follow a public bidding process before approving the Second

      Amendment. Among other things, the Second Amendment makes the

      following changes to the Original Agreement:


           Covanta is entitled to design, construct, and operate an advanced
            materials recovery center (the ARC Facility) for the recovery of certain
            materials from the waste stream that may be suitable for recycling.
           Covanta has exclusive right to the City’s waste for another ten years,
            extending the contractual term to December 31, 2028.
           There is no minimum recyclable recovery requirement on Covanta.
           There is no longer a “put or pay” provision in the agreement.
           The City must pay 70% of Covanta’s taxes for the ARC Facility, up to $4
            million.
           If the City were to expand its clean recycling options, it would face
            significant liquidated damages.
           If the current subscription curbside recycling program were to collect 5%
            more recyclables per year than the year prior to the opening of the ARC
            Facility, then the City’s portion of revenue will decrease.

      Court of Appeals of Indiana | Opinion 49A04-1504-PL-165 | February 24, 2016   Page 4 of 19
           The City is prohibited from working with the private sector to improve
            recycling programs for the next fourteen years.

[6]   The recyclable materials recovered and processed through the ARC Facility will

      be subject to a collection method whereby there is no source separation and

      trash and recyclables are mixed together (Dirty Recycling). In other words,

      consumers will place all trash and all recyclables into the same collection

      containers; the materials collected will then be sorted at the ARC Facility into

      recyclables and non-recyclables. Dirty Recycling results in a significantly

      higher rate of recovered materials that are not suited for use in manufacturing

      recycled materials than a program that does not mix recyclables with trash

      (Clean Recycling). Furthermore, glass will not be recovered for recycling at the

      ARC Facility. Waste that is not separated for recycling will be incinerated; the

      resulting ash will be sent to a landfill.


[7]   Graphic Packaging and Rock-Tenn (collectively, the Recycling Companies) are

      corporations engaged in the business of manufacturing and selling paperboard

      and folding cartons. The Recycling Companies purchase recycled paper and

      paperboard for the manufacture of their products. These companies will not be

      purchasing recycled material originating from the ARC Facility, as the material

      will not meet quality specifications due to contamination. In other words, the

      ARC Facility will reduce the amount of materials in the market that meet their

      needs. Rock-Tenn potentially would have bid on or responded to a Request for

      Proposal for a recyclables recovery facility for the City if the City had followed




      Court of Appeals of Indiana | Opinion 49A04-1504-PL-165 | February 24, 2016   Page 5 of 19
      public bidding procedures. The final plaintiff, Cathy Weinmann, is a citizen of

      Indianapolis.


[8]   On September 5, 2014, the Plaintiffs filed a complaint against the Government,

      challenging the validity of the Second Amendment and the procedure by which

      it was awarded. The Government filed a motion to dismiss and for summary

      judgment; the plaintiffs objected to dismissal and filed a cross-motion for

      summary judgment. Following briefing and oral argument, the trial court

      granted summary judgment5 in favor of the Government on April 6, 2015. In

      pertinent part, the trial court found that (1) none of the Plaintiffs had standing;

      (2) even if the Plaintiffs had standing, the Government was not required by the

      Waste Disposal Statute to engage in a competitive bidding or a request for

      proposal proceeding; and (3) the term of the contract does not exceed forty

      years in contravention of the Waste Disposal Statute. The Plaintiffs now

      appeal.6




      5
        To the extent that the trial court styled its ruling as a grant of the Government’s motion to dismiss the
      complaint, we note that because affidavits and other materials were attached to the motion to dismiss, it is
      treated as one for summary judgment pursuant to Indiana Trial Rule 56. Bellows v. Bd. of Comm’rs of Cnty. of
      Elkhart, 926 N.E.2d 96, 113-14 (Ind. Ct. App. 2010).
      6
        We would be remiss if we did not acknowledge that on the day of oral argument in this case, local media
      reported electronically that Mayor Hogsett and Covanta have agreed to a ninety-day suspension of the
      Second Amendment for the possible purpose of renegotiation. E.g., Hayleigh Colombo, Hogsett Suspends
      Ballard Pact With Covanta for Recycling Plant, INDIANAPOLIS BUSINESS JOURNAL,
      http://www.ibj.com/articles/57159-hogsett-suspends-ballard-pact-with-covanta-for-recycling-plant (last
      visited February 11, 2016). The case is not moot because the contract was merely suspended rather than
      terminated; therefore, we still held oral argument and are issuing a decision on the merits.

      Court of Appeals of Indiana | Opinion 49A04-1504-PL-165 | February 24, 2016                       Page 6 of 19
                                     Discussion and Decision
                                       I. Standard of Review
[9]    Our standard of review on summary judgment is well established:

               We review summary judgment de novo, applying the same
               standard as the trial court: “Drawing all reasonable inferences in
               favor of . . . the non-moving parties, summary judgment is
               appropriate ‘if the designated evidentiary matter shows that there
               is no genuine issue as to any material fact and that the moving
               party is entitled to judgment as a matter of law.’” Williams v.
               Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). . . .


               . . . And “[a]lthough the non-moving party has the burden on
               appeal of persuading us that the grant of summary judgment was
               erroneous, we carefully assess the trial court’s decision to ensure
               that he was not improperly denied his day in court.” McSwane v.
               Bloomington Hosp. & Healthcare Sys., 916 N.E.2d 906, 909-10 (Ind.
               2009) (internal quotation marks omitted).


       Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). This appeal also calls for us

       to interpret statutes and contractual language, each of which are pure questions

       of law to which we apply a de novo standard of review. E.g., Meyer v. Beta Tau

       House Corp., 31 N.E.3d 501, 513 (Ind. Ct. App. 2015) (statutes); Lily, Inc. v. Silco,

       LLC, 997 N.E.2d 1055, 1064 (Ind. Ct. App. 2013) (contracts), trans. denied. The

       parties agree that there are no issues of fact to be determined here.


                                 II. Right of Action/Standing
[10]   First, we must consider whether the Plaintiffs have a valid cause of action;

       second, whether they have standing to bring that cause of action. Whether a
       Court of Appeals of Indiana | Opinion 49A04-1504-PL-165 | February 24, 2016   Page 7 of 19
       statute creates a private right of action is a pure question of law. Howard Reg’l

       Health Sys. v. Gordon, 952 N.E.2d 182, 187 (Ind. 2011). Whether a party has

       standing is also a pure question of law. Bellows, 926 N.E.2d at 113-14.


                                          A. Right of Action
[11]   Although the parties analyze and debate multiple potential causes of action, we

       find one dispositive: the Waste Disposal Statute. Indiana Code section 36-9-

       31-4(d) governs the validity of contracts awarded pursuant to section 4 of the

       Waste Disposal Statute.7 Section 4 provides that “[a]n action to contest the

       validity of the contract awarded or the procedure by which it was awarded must

       be brought within thirty (30) days following the award of the contract. After

       that date, the contract is incontestable for any cause.” I.C. § 36-9-31-4(d).


[12]   The Government argues that subsection (d) does not create a new cause of

       action; instead, “it is nothing more than a time limit or statute of limitations

       within which to bring a lawsuit asserting a cause of action already provided for

       under Indiana law.” Appellees’ Br. p. 7. According to the Government,

       because the Waste Disposal Statute imposes a duty that benefits the public,




       7
        As fully explained below, we find that the Second Amendment falls under section 4 of the Waste Disposal
       Statute.



       Court of Appeals of Indiana | Opinion 49A04-1504-PL-165 | February 24, 2016                   Page 8 of 19
       rather than a private interest, no private cause of action should be inferred from

       the statute. Blanck v. Ind. Dep’t of Corr., 829 N.E.2d 505, 509 (Ind. 2005).8


[13]   The Government concedes, however, that the Waste Disposal Statute does not

       contain an enforcement mechanism. If the legislature had included an

       enforcement mechanism, there would be a clear indication that there was no

       intent to create a private right of action. E.g., Stulajter v. Harrah’s Ind. Corp., 808

       N.E.2d 746, 748 (Ind. Ct. App. 2004) (holding that “[w]e have consistently held

       that a private cause of action will not be found where the legislature has

       expressly provided for enforcement of a statute”). As there is no enforcement

       mechanism, the Government’s interpretation of the statute would render

       subsection (d) entirely meaningless. Therefore, this interpretation is untenable.


[14]   The plain language of subsection (d) references an “action to contest the

       validity of the contract awarded or the procedure by which it was awarded[.]”

       I.C. § 36-9-31-4(d). It further puts in place a thirty-day time limit for bringing

       such an action. Id. To say that this language does not create a private cause of

       action would be to ignore multiple sentences written and passed by the General

       Assembly. We decline to do so, and find that subsection (d) clearly creates a




       8
         In support of its contention that the Waste Disposal Statute confers a public benefit, the Government points
       to the public bidding provisions of the statute. We note our incredulity that the Government makes this
       argument given that the Government’s failure to abide by those public bidding requirements is one of the
       central issues in this litigation.

       Court of Appeals of Indiana | Opinion 49A04-1504-PL-165 | February 24, 2016                       Page 9 of 19
       right of action to challenge contracts, as well as the procedures used to award

       those contracts, awarded under section 4 of the Waste Disposal Statute.


                                                 B. Standing
[15]   The parties debate both traditional standing and public standing with respect to

       the right of the Plaintiffs to pursue their claims in this case. We will turn

       immediately to public standing, as we believe that doctrine provides the best fit

       for this litigation.


[16]   The public standing doctrine applies in cases where public, rather than private,

       rights are at issue and in cases that involve the enforcement of a public rather

       than a private right. State ex rel. Cittadine v. Ind. Dep’t of Transp., 790 N.E.2d 978,

       980 (Ind. 2003). Although the Government argues that persons invoking public

       standing must have something more than a generalized interest to have

       standing, our Supreme Court disagrees. In Cittadine, our Supreme Court held

       as follows:


            “the public standing doctrine eliminates the requirement that the
             [plaintiff] have an interest in the outcome of the litigation different from
             that of the general public,” id.;
            “‘when a case involves enforcement of a public rather than a private right
             the plaintiff need not have a special interest in the matter,’” id. (quoting
             Schloss v. City of Indianapolis, 553 N.E.2d 1204, 1206 n.3 (Ind. 1990)).

       Here, the Government concedes that this case involves matters of public

       interest. Pursuant to the plain language of Cittadine, therefore, the Plaintiffs




       Court of Appeals of Indiana | Opinion 49A04-1504-PL-165 | February 24, 2016   Page 10 of 19
       here need not have any special interest in the matter beyond that of the general

       public.


[17]   The public rights sought to be enforced by the Plaintiffs in this case are

       contained within the language of the Waste Disposal Statute. Specifically, they

       point to the sections of the statute regarding public bidding, public hearings,

       and public review. According to the Plaintiffs, they “have standing under the

       public standing doctrine as citizens and taxpayers who are challenging the

       approval of a contract in violation of the public’s right to participate in that

       process, which right is created by the Waste Disposal Statute.” Appellants’ Br.

       p. 38. We agree. Indeed, if these Plaintiffs do not have standing to seek to

       enforce this statute, we are left wondering who would. Once again, if we were

       to adopt the Government’s analysis, we would essentially render meaningless

       an entire subsection of a statute. As members of the public, these Plaintiffs

       have an interest in ensuring that their government complies with the law, and

       the Waste Disposal Statute in no way limits who is entitled to file a cause of

       action seeking to enforce it. Therefore, we find that they have standing to raise

       these claims.


                  III. Compliance with Waste Disposal Statute
[18]   The parties argue about whether the Second Amendment ran afoul of the

       Waste Disposal Statute by (1) failing to comply with public bidding/review

       procedures; and (2) executing a contract that exceeds the forty-year limit put in

       place by the statute.


       Court of Appeals of Indiana | Opinion 49A04-1504-PL-165 | February 24, 2016   Page 11 of 19
                                A. Public Review Procedures
[19]   Contracts entered into pursuant to Indiana Code section 36-9-31-4(a) must be

       executed “in accordance with the requirements and conditions of this section.”

       Included among the requirements and conditions of that section are the public

       bidding, request for proposals, and public notice/comment/hearing provisions.

       It is undisputed that the Government did not comply with any of those

       provisions in executing the Second Amendment. The parties disagree,

       however, about whether the Second Amendment falls under the purview of

       section 4.


[20]   Indiana Code section 36-9-31-4(a) provides that the Government is entitled to

       enter into contracts or agreements regarding “the design, construction,

       operation, financing, ownership, or maintenance of a facility for waste

       disposal[.]” The Government and its amici argue that the Second Amendment

       falls under the purview of section 3, rather than section 4, of the Waste

       Disposal Statute, contending that the Second Amendment is merely a waste

       disposal service contract rather than a construction contract:

               Indianapolis contracted with Covanta to have Covanta sort
               recyclables out of waste and then dispose of the remaining
               garbage. This is a service. To provide this service, Covanta will
               build the ARC. But this does not make the Second Amendment
               a contract for the construction of the ARC.


       Govt. Amici Br. p. 20.




       Court of Appeals of Indiana | Opinion 49A04-1504-PL-165 | February 24, 2016   Page 12 of 19
[21]   We disagree with the Government’s interpretation of the Second Amendment.

       It is readily apparent that the Second Amendment falls squarely within section

       4 inasmuch as it contemplates the design, construction, operation, financing,

       ownership, and maintenance of the ARC Facility—a waste disposal facility.

       Indeed, Covanta was required by the Second Amendment to design, engineer,

       construct, and operate the ARC Facility. As such, the Second Amendment falls

       under the purview of section 4. While the provision of services is also a part of

       the Second Amendment, we decline to ignore the contractual requirement for

       the construction of a multi-million dollar facility. In no way do we intend to

       curtail the ability of local governments to enter into waste disposal service

       contracts under section 3. We merely hold that when a contract goes well

       above and beyond the provision of services by requiring the construction of a

       massive facility, it walks and quacks like the proverbial section 4 duck we deem

       it to be.


[22]   At oral argument, counsel for the Government and its amici argued that because

       the ARC Facility would be owned by Covanta, rather than the City, the

       contract would not fall under section 4. Initially, we note that section 4 is not

       limited to government-owned facilities. Furthermore, to adopt this

       interpretation would be to permit the City to make an end-run around the

       requirements of the Waste Disposal Statute, which we decline to do. We also

       echo the Plaintiffs’ amici, who point out that


               of course a private corporation is responsible for designing,
               constructing, and managing a waste disposal facility once it

       Court of Appeals of Indiana | Opinion 49A04-1504-PL-165 | February 24, 2016   Page 13 of 19
               enters into a contract with a public entity to design, construct,
               and manage that facility. And the fact that the decision to create
               the facility might have originated with the private corporation—
               motivated, at least in part, by a desire to increase profits—simply
               underscores the importance of an open and transparent decision-
               making process.


       Pl. Amici Br. p. 20 (emphasis original). We find the fact that the ARC Facility

       would be owned by Covanta is a distinction without a difference under section

       4.


[23]   In its order, the trial court found that the more general section 3 of the Waste

       Disposal Statute, as opposed to the more specific section 4, governs the Second

       Amendment. Section 3 sets forth the general powers and duties of the Board,

       which includes provision of waste disposal services. I.C. §§ 36-9-31-3(3), -3(5).

       The trial court reasoned that because the terms of section 3 do not require

       compliance with the provisions of section 4, the Government was not required

       to engage in a competitive bidding or a request for proposal proceeding. We

       disagree with this approach, as it allows the more general language to prevail

       over the more particular and protective language of section 4, which violates

       well-established rules of statutory construction. E.g., Nordman v. N. Manchester

       Foundry, Inc., 810 N.E.2d 1071, 1074 (Ind. Ct. App. 2004) (noting that a

       “statute dealing with a subject in a specific manner controls over the statute

       dealing with the same subject in general terms”). This interpretation essentially

       renders section 4 superfluous. For contracts that are for the design,

       construction, operation, financing, ownership, or maintenance of a facility for


       Court of Appeals of Indiana | Opinion 49A04-1504-PL-165 | February 24, 2016   Page 14 of 19
       waste disposal, the specific provisions of section 4 must take priority over the

       general powers provisions of section 3.


[24]   In a final attempt to escape the provisions of section 4, the Government argues

       that because the Second Amendment “constituted only an amendment to a

       contract already properly bid out,” appellees’ br. p. 13, they were not required

       to comply with section 4. The Government insists that the City could not have

       bid out the ARC Facility or have chosen who was to construct it because the

       City was merely granting Covanta the permission as a landlord to build its own

       facility.


[25]   The plain language of the statute says otherwise. Section 4 explicitly applies to

       amendments:

               Before or after the expiration or termination of the term or
               duration of any contract or agreement entered into or granted
               under this section, the board, in accordance with the requirements
               and conditions of this section, may from time to time enter into
               amended, extended, supplemental, new, or further contracts or
               agreements with the same or any other person for any purpose
               referred to in this section.




       Court of Appeals of Indiana | Opinion 49A04-1504-PL-165 | February 24, 2016   Page 15 of 19
       I.C. § 36-9-31-4(a) (emphases added). Therefore, the fact that the Second

       Amendment was simply an amendment of a properly bid contract does not

       remove it from the purview of the requirements of section 4.9


[26]   Finally, as a matter of public policy, the Waste Disposal Statute has, in the

       words of the Plaintiffs, a worthy theme of “a transparent, public process that

       allows competition and public review and input.” Appellants’ Br. p. 36. The

       Government concedes that public bidding laws are beneficial and that

       transparency is a worthy goal. Here, the process was wholly opaque. The

       citizens of this City have a right to debate whether the Second Amendment

       ultimately benefits the City. Had the policy of public input and transparency

       been honored, the citizens of this City would have had the chance to learn

       about and provide input regarding the Dirty Recycling process. They have the

       right to have their say, especially when a multi-million-dollar, multi-decade

       contract affecting one and all is involved. Quite simply, the process here did

       not comport with public policy.




       9
         The Government amici argue that the Home Rule Act relieves the Government from the requirements of
       the Waste Disposal Statute. Ind. Code ch. 36-1-3. But the Home Rule Act provides that “[i]f there is a . . .
       statutory provision requiring a specific manner for exercising a power, a unit wanting to exercise the power
       must do so in that manner.” Ind. Code § 36-1-3-6(a). Here, section 4 of the Waste Disposal Statute requires
       a specific manner for entering into contracts relating to waste disposal facilities in Indianapolis, and even
       under the Home Rule Act, the Government must abide by its terms. Moreover, section 25 of the Waste
       Disposal statute explicitly states that “[a]s to facilities acquired, constructed, modified, operated, or leased
       under this chapter, and the collection of wastes under this chapter, it is not necessary to comply with other
       statutes concerning the acquisition, construction, modification, use, and maintenance of facilities or the
       collection of waste by cities . . . .” It is apparent that the legislature intended the Waste Disposal Statute to
       require local governmental entities to abide by its provisions. Therefore, the Home Rule Act does not
       provide cover to the Government in this case.


       Court of Appeals of Indiana | Opinion 49A04-1504-PL-165 | February 24, 2016                         Page 16 of 19
[27]   When taking a step back and viewing the Second Amendment as a whole, it is

       readily apparent that it is far more than a waste disposal services contract.

       Therefore, section 4 applies. As section 4 applies, the public bidding, request

       for proposals, and public notice/comment/hearing provisions should have been

       followed. They were not. Consequently, the Second Amendment is void and

       the Plaintiffs are entitled to summary judgment as a matter of law.


                                       B. Length of Contract
[28]   Finally, we note that Indiana Code section 36-9-31-3(5) provides that contracts

       or agreements relating to the collection, disposal, or recovery of byproducts

       from waste may not exceed forty years. In late 1985, the City entered into the

       Original Agreement. The Second Amendment extended that agreement until

       2028—a total period of forty-three years.


[29]   The trial court found that the effective start date for the contract term was the

       date the facility was fully operational and receiving waste from the

       Government, which the trial court found occurred on January 1, 1989.

       Therefore, according to the trial court, the Second Amendment did not violate

       the forty-year limit as the contract term began in 1989 rather than in 1985.


[30]   But the Original Agreement was undisputedly executed in 1985. And

       beginning in 1985, the parties had contractual obligations—including meeting

       financial obligations, issuing bonds, obtaining permits, designing the facility,

       meeting construction schedules, completing a lease agreement, facility testing,

       etc. Furthermore, the Original Agreement required the City to deliver a

       Court of Appeals of Indiana | Opinion 49A04-1504-PL-165 | February 24, 2016   Page 17 of 19
       specified amount of waste to the facility before the effective date, and the City

       agreed to pay penalties if it failed to do so. Therefore, the “effective date” 10 in

       the contract merely defines future trigger points in the contract rather than

       being synonymous with the actual start date of the contract for purposes of the

       forty-year time limit. The Plaintiffs note that the prohibition against any

       contract or agreement exceeding forty years “is broader than a prohibition

       against a contract for operating a facility at full capacity for over 40 years. It is

       immaterial that under the agreement the facility contracted for was not capable

       of processing acceptable waste at full capacity until some later date.”

       Appellants’ Br. p. 41.11 As the Second Amendment exceeded the statutory

       forty-year time limit, it is void for this reason as well.


                                                   Conclusion
[31]   In sum, we find and hold as follows:


                (1) the Waste Disposal Statute creates a right of action that does
                not limit who is entitled to enforce it;




       10
          In addition to the “Effective Date,” the Original Agreement contains other defined dates: the Acceptance
       Date, Construction Date, Contract Date, First Closing, Scheduled Acceptance Date, etc. But the contract
       itself commenced on the date it was entered into.
       11
          Government amici state in a footnote that the First Amendment was not an amendment of the Original
       Agreement, but was instead a renegotiated and restated contract. Govt. Amici Br. p. 9 n.1. Amici contend,
       therefore, that the forty-year clock was reset in 2008 and that the Second Amendment does not run afoul of
       the time limitation. But amici do not fully develop this contention, and the Government does not raise this as
       an issue. Instead, the Government assumes that the First Amendment was just that—an amendment of the
       Original Agreement that did not reset the forty-year clock. In any event, we note that it does not pass the
       straight face test to argue that the government could “amend” its contracts in perpetuity without ever falling
       afoul of the forty-year time limit. This argument is unavailing.

       Court of Appeals of Indiana | Opinion 49A04-1504-PL-165 | February 24, 2016                     Page 18 of 19
               (2) the Plaintiffs have standing to bring such an action under the
               public standing doctrine;


               (3) section 4 of the Waste Disposal Statute applies to the Second
               Amendment;


               (4) the provisions of section 4 relating to public participation and
               transparency were not followed;


               (5) the contract exceeds the maximum length allowed by statute;
               and


               (6) as a result of failure to comply with section 4, the Second
               Amendment is void.


[32]   The judgment of the trial court is reversed and remanded with instructions to

       enter summary judgment in favor of the Plaintiffs.


       Bradford, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 49A04-1504-PL-165 | February 24, 2016   Page 19 of 19
