                                                                         FILED
                                                                    Dec 16 2016, 8:19 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James R. Williams                                         Gregory F. Zoeller
Matthew L. Kelsey                                         Attorney General of Indiana
DeFUR • Voran, LLP
Muncie, Indiana                                           Andrea E. Rahman
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

The Board of Commissioners of                             December 16, 2016
Union County, Indiana,                                    Court of Appeals Case No.
Appellant-Plaintiff,                                      81A01-1603-PL-696
                                                          Appeal from the Union Circuit
        v.                                                Court
                                                          The Honorable Brian D. Hill,
Brandye Hendrickson, in her                               Special Judge
official capacity as                                      Trial Court Cause No.
Commissioner of the Indiana                               81C01-1507-PL-118
Department of Transportation,
and the State of Indiana,
Appellees-Defendants.




Barnes, Judge.




Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016                  Page 1 of 20
                                               Case Summary1
[1]   The Board of Commissioners of Union County (“the County”) appeals the

      dismissal of its complaint against Brandye Hendrickson, in her official capacity

      as Commissioner of the Indiana Department of Transportation (“INDOT”),

      and INDOT itself (collectively “INDOT”). We reverse and remand.


                                                       Issues
[2]   The restated issues before us are:


              I.       whether this court is reviewing the dismissal of a
                       complaint under Indiana Trial Rule 12(B)(6) or the
                       granting of summary judgment under Indiana Trial Rule
                       56;


              II.      whether the trial court properly concluded that the County
                       lacked standing to seek a declaratory judgment against
                       INDOT; and


              III.     whether the trial court properly concluded that the County
                       lacked standing to seek an injunction against INDOT.


                                                       Facts
[3]   The facts as alleged by the County are that, in 2010 or 2011, INDOT performed

      construction and repair work on State Highway 27 in the County. The County



      1
        We heard oral argument in this case on November 3, 2016, at the University of Notre Dame School of
      Law. We thank counsel for their helpful arguments and for making the trip to South Bend. We also thank
      the administration, faculty, and students of the School of Law, as well as members of the St. Joseph County
      bar and judiciary, for their hospitality.

      Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016                     Page 2 of 20
      had no involvement in this roadwork project. During the project, INDOT

      allegedly damaged septic systems on the properties of three private landowners

      in the County as a result of improper or negligent work. This damage “may

      impact other properties and may implicate a broader public health and safety

      concern for Union County . . . .” App. p. 25. The County asked INDOT to

      investigate and remedy these problems, but INDOT failed to do so.


[4]   On July 31, 2015, the County filed a declaratory judgment and injunctive relief

      action against Hendrickson and INDOT. The County sought an order

      “declaring state highway 27 and any associated storm drain the responsibility of

      INDOT and not Union County . . . .” Id. Additionally, it sought an order

      “compelling INDOT to immediately remedy any and all negligent and/or

      improper construction and repair work that resulted in septic and/or public

      health issues . . . .” Id. at 26.


[5]   INDOT filed a motion to dismiss, asserting that the County lacked standing to

      sue. As part of its response to the motion to dismiss, the County filed an

      affidavit from its Sanitarian, Ron Parker. Parker stated in the affidavit, “Upon

      information and belief, The Highway Repair has resulted in raw sewage

      flowing outside appropriate septic and drainage systems. This poses a public

      health and safety risk for Union County, Indiana and proximately caused

      violations of the local health code.” Id. at 47.


[6]   Two weeks after the County filed its response and Parker’s affidavit, INDOT

      filed a motion for an extension of time to file a reply in support of its motion to


      Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016   Page 3 of 20
      dismiss. However, on the same day INDOT filed that motion, the trial court

      granted INDOT’s motion to dismiss, agreeing that the County lacked standing

      to bring suit. The trial court did not indicate whether it considered Parker’s

      affidavit, nor was a hearing held on the motion to dismiss. The County filed a

      motion to correct error. In response, INDOT requested that Parker’s affidavit

      be stricken in addition to the motion to correct error being denied. The trial

      court denied the motion to correct error, without expressly ruling on the motion

      to strike Parker’s affidavit. The County now appeals.


                                                   Analysis
                  I. Motion to Dismiss versus Motion for Summary Judgment

[7]   The first issue we address is whether we are reviewing the dismissal of a

      complaint under Indiana Trial Rule 12(B)(6) or whether INDOT’s motion to

      dismiss was converted to a Trial Rule 56 motion for summary judgment when

      the County included Parker’s affidavit with its response to INDOT’s motion.

      Trial Rule 12(B) states in part:

              If, on a motion, asserting the defense number (6), to dismiss for
              failure of the pleading to state a claim upon which relief can be
              granted, matters outside the pleading are presented to and not
              excluded by the court, the motion shall be treated as one for
              summary judgment and disposed of as provided in Rule 56. In
              such case, all parties shall be given reasonable opportunity to
              present all material made pertinent to such a motion by Rule 56.


[8]   This case is somewhat similar to Carrell v. Ellingwood, 423 N.E.2d 630 (Ind. Ct.

      App. 1981). In that case, there was a 12(B)(6) motion to dismiss a will contest

      Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016   Page 4 of 20
      as untimely. The plaintiffs filed a response to the motion that included an

      affidavit. On the same day the response was filed and without notice to the

      movant, the trial court entered an order expressly “dismissing” the will contest

      as untimely and noting that the plaintiffs had filed an affidavit in their response

      to the motion to dismiss. On appeal, this court held that it was error for the

      trial court to apparently consider the affidavit in ruling on the motion to dismiss

      without providing the other party a reasonable time to present additional

      materials to the court for its consideration. Carrell, 423 N.E.2d at 634.

      However, this court went on to address, on the merits, whether summary

      judgment in favor of the will contest defendant was properly granted; after

      considering the affidavit, the court held that it was not and reversed. Id. at 636;

      see also Lanni v. National Collegiate Athletic Ass’n, 989 N.E.2d 791, 797 (Ind. Ct.

      App. 2013) (holding trial court abused its discretion in converting 12(B)(6)

      motion to dismiss into motion for summary judgment). A trial court’s failure to

      give explicit notice of its intended conversion of a motion to dismiss to one for

      summary judgment is reversible error if a party is not afforded a reasonable

      opportunity to respond to the introduction of evidence and that party is thereby

      prejudiced. Azhar v. Town of Fishers, 744 N.E.2d 947, 950-51 (Ind. Ct. App.

      2001).


[9]   Here, the trial court never stated whether it was considering Parker’s affidavit

      when ruling on the motion to dismiss; on the other hand, it never expressly

      excluded the affidavit from consideration, even after INDOT asked the trial

      court to strike it from the record as part of its response to the County’s motion


      Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016   Page 5 of 20
       to correct error. Additionally, the trial court’s ultimate ruling was that it was

       dismissing the complaint. It did not state that it was granting summary

       judgment to INDOT, and it gave no indication that it considered Parker’s

       affidavit when making its ruling.


[10]   At oral argument, counsel for the County conceded that INDOT was not given

       an adequate opportunity to respond to Parker’s affidavit. We conclude that it

       was erroneous for the trial court to proceed to rule on the motion to dismiss

       without clarifying whether it was considering the affidavit, and if so to provide

       INDOT an opportunity to respond in accordance with the summary judgment

       rules. However, unlike in Carrell, we believe that in the present case it would be

       inappropriate to proceed to review this case as a grant of summary judgment,

       particularly given the fact that the trial court stated that it was dismissing the

       complaint, not granting summary judgment, and because it did not expressly

       state that it was considering Parker’s affidavit. Instead, we will review this case

       purely as a 12(B)(6) dismissal and assume that the trial court “excluded”

       Parker’s affidavit from consideration. As such, we will not consider Parker’s

       affidavit in our review. On remand, either party may file for summary

       judgment if they so choose.


[11]   A motion to dismiss for a plaintiff’s alleged lack of standing may be brought

       under Indiana Trial Rule 12(B)(6) for failure to state a claim upon which relief

       can be granted. Thomas v. Blackford County Area Bd. Of Zoning Appeals, 907

       N.E.2d 988, 990 (Ind. 2009). When ruling upon a 12(B)(6) motion, the

       allegations of the complaint must be taken as true. Id. A successful motion to

       Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016   Page 6 of 20
       dismiss for lack of standing must establish that the lack of standing is apparent

       on the face of the complaint. Id. The standard of review for a ruling on a

       12(B)(6) motion to dismiss is de novo, and this court owes no deference to the

       trial court’s decision. Bellows v. Board of Comm’rs of County of Elkhart, 926

       N.E.2d 96, 110 (Ind. Ct. App. 2010).


                                          II. Declaratory Judgment

[12]   The County sought two different forms of relief, and different principles apply

       to each of them. First, the County sought an order “declaring state highway 27

       and any associated storm drain the responsibility of INDOT and not Union

       County, Indiana.” App. p. 25. INDOT contends that, by this language, the

       County is seeking a preemptive determination that it cannot be held liable to

       any private landowners for damage to their property caused by the highway

       repair project. We disagree and conclude the County was entitled to seek

       declaratory relief on this matter.


[13]   The Declaratory Judgment Act states that trial courts may “declare rights,

       status, and other legal relations whether or not further relief is or could be

       claimed.” Ind. Code § 34-14-1-1. The Act further provides:

               Any person interested under a deed, will, written contract, or
               other writings constituting a contract, or whose rights, status, or
               other legal relations are affected by a statute, municipal
               ordinance, contract, or franchise, may have determined any
               question of construction or validity arising under the instrument,
               statute, ordinance, contract, or franchise and obtain a declaration
               of rights, status, or other legal relations thereunder.


       Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016   Page 7 of 20
       I.C. § 34-14-1-2.2 Additionally, the enumeration of certain types of relief in

       parts of the Act, such as section 2, “does not limit or restrict the exercise of the

       general powers conferred in section 1 of this chapter in any proceeding where

       declaratory relief is sought, in which a judgment or decree will terminate the

       controversy or remove an uncertainty.” I.C. § 34-14-1-5.


[14]   INDOT suggests in part that the County merely is seeking to shift liability to

       INDOT for any potential lawsuits related to the release of sewage along the

       highway and that is not a proper use of a declaratory judgment action. It is true

       that a party cannot seek a declaratory order determining their liability to third

       parties. See Union Fed. Sav. Bank v. Chantilly Farms, Inc., 556 N.E.2d 9, 11 (Ind.

       Ct. App. 1990). The proper venue for determining such liability is in any suit

       brought by the third party. Id.


[15]   Here, however, the County was not seeking any express declaration of its

       liability to any third parties, unlike in Chantilly Farms. The ultimate effect of

       any declaration regarding responsibility for State Highway 27 is beyond the

       scope of the present action. Rather, the County’s request for declaratory

       judgment may be viewed as akin to a dispute regarding ownership of or title to

       real property, which is an appropriate matter for resolution by declaratory

       judgment. See Baxter v. Baxter, 138 Ind. App. 24, 27, 195 N.E.2d 877, 879




       2
         A “person” is defined as “any person, partnership, limited liability company, joint stock company,
       unincorporated association, or society, or municipal or other corporation of any character whatsoever.” I.C.
       § 34-14-1-13. INDOT makes no argument that the County is not a “person” under this definition.

       Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016                     Page 8 of 20
       (1964). Additionally, aside from the matter of possible liability to any

       particular third-party private property owners for septic field leakage, a

       declaration of responsibility for State Highway 27 and its drainage would clarify

       which governmental unit must arrange and pay for any necessary repairs to the

       road and drainage system. See Chanley v. State, 596 N.E.2d 933, 934 (Ind. Ct.

       App. 1992) (“The State and all counties have a common law duty to exercise

       reasonable care in the design, construction, maintenance, and repair of

       highways and roads within their control”), trans. denied.


[16]   The State also contended at oral argument that the County failed to state an

       adequate declaratory judgment claim because it did not precisely specify what

       “writing” its claim was based upon with respect to responsibility for State

       Highway 27. First, we would note that to the extent there would be a lack of

       clarity as to a writing that governed State Highway 27, that would be a matter

       for resolution later in the proceedings, if indeed no such writing could be

       located, and not a reason for dismissal of the complaint. Second, the

       Declaratory Judgment Act clearly states that trial courts may grant declaratory

       relief, even if a matter does not strictly fall within one of the stated statutory

       parameters for such relief. See I.C. § 34-14-1-5.


[17]   Finally and perhaps most importantly, it appears to us that there should be a

       relatively simple way of determining responsibility for State Highway 27. We

       note that under Indiana Code Section 8-23-4-2(a), INDOT shall designate

       which roads constitute the state highway system. INDOT has responsibility for

       those streets and roads that make up the state highway system. I.C. § 8-23-1-40.

       Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016   Page 9 of 20
       Additionally, the INDOT commissioner “shall at all times maintain maps of

       Indiana, which must show all the highways that constitute the state highway

       system, the arterial and local highway systems of each county, and the arterial

       and local street systems of each municipality.” I.C. § 8-23-4-6. According to

       these and other highway-related statutes, it should be possible to determine and

       issue a declaration as to who bears responsibility for State Highway 27 and its

       drainage system. We reverse the dismissal of the County’s request for a

       declaratory judgment to that effect.


                                             III. Injunctive Relief

[18]   Next, we address the separate issue of whether the County had standing to

       pursue injunctive relief against INDOT compelling it “to immediately remedy

       any and all negligent and/or improper construction and repair work that

       resulted in septic and/or public health issues . . . .” App. at 26. There does not

       appear to be any prior reported case in which a locality has attempted to sue a

       State entity for negligently causing some kind of physical harm within the

       locality. The standing requirement is intended to assure that litigation will be

       actively and vigorously contested. State ex rel. Cittadine v. Indiana Dep’t of

       Transp., 790 N.E.2d 978, 979 (Ind. 2003). “It focuses on whether the

       complaining party is the proper person to invoke the court’s power.” Id. Under

       the general standing rule, “only those persons who have a personal stake in the

       outcome of the litigation and who show that they have suffered or were in

       immediate danger of suffering a direct injury as a result of the complained-of

       conduct will be found to have standing.” Id. “It is generally insufficient that a

       Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016   Page 10 of 20
       plaintiff merely has a general interest common to all members of the public.”

       Id.


[19]   We further note that the standard for obtaining injunctive relief is different than

       the standard for obtaining a declaratory order. A party may seek equitable

       injunctive relief if monetary damages are too speculative to quantify. City of

       Gary ex rel. King v. Smith & Wesson Corp., 801 N.E.2d 1222, 1246-47 (Ind. 2003).

       If a party suffers purely economic injury and there is an adequate remedy at

       law, injunctive relief should not be ordered. Indiana Family & Soc. Servs. Admin.

       v. Walgreen Co., 769 N.E.2d 158, 162 (Ind. 2002). A party seeking an injunction

       generally bears the burden of proving an injury that is certain and irreparable if

       the injunction is denied. Ferrell v. Dunescape Beach Club Condominiums Phase I,

       Inc., 751 N.E.2d 702, 713 (Ind. Ct. App. 2001). The County here additionally

       was seeking a mandatory injunction, which is an injunction “‘that orders an

       affirmative act or mandates a specified course of conduct.’” City of Gary v.

       Majestic Star Casino, LLC, 905 N.E.2d 1076, 1082 n.6 (Ind. Ct. App. 2009)

       (quoting BLACK’S LAW DICTIONARY 800 (8th ed. 2004)), trans. denied. The

       principles behind mandatory and prohibitory injunctions are similar, although

       courts generally are more reluctant to grant mandatory injunctions. Crossman

       Communities, Inc. v. Dean, 767 N.E.2d 1035, 1040 (Ind. Ct. App. 2002).


[20]   INDOT generally argues, in part, that, unless the County can show some injury

       to property that it owns, as opposed to property owned by private parties, it

       cannot have standing to make any claims with respect to septic system leaks

       allegedly caused by INDOT’s negligence. Without such a showing, INDOT

       Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016   Page 11 of 20
       asserts that the County has not suffered a “direct injury” as required to establish

       standing. See Cittadine, 790 N.E.2d at 979. INDOT asserts that only directly-

       affected property owners could sue. It certainly is true that there is no

       allegation of any property directly owned by the County having been affected

       by INDOT’s purported negligence. We do not believe, however, that this

       precludes the County from having standing to seek this injunction.


[21]   In its ruling against the County, the trial court relied upon Jacob Weinberg News

       Agency, Inc. v. City of Marion, 163 Ind. App. 181, 322 N.E.2d 730 (1975). The

       County claims that case in fact supports a finding that it has standing here. In

       that case, a wholesale distributor of pornographic magazines sought to enjoin a

       local ordinance from going into effect that would have been enforced against

       retailers of those magazines but not the wholesaler. The wholesaler argued that

       such enforcement would impact its sales and its First Amendment rights. The

       trial court dismissed the wholesaler’s complaint for lack of standing because the

       ordinance would not be enforced directly against the wholesaler. This court

       reversed, holding that the wholesaler, although not subject directly to

       enforcement of the ordinance, was entitled to bring the action in order to

       vindicate its own First Amendment rights. Weinberg, 163 Ind. App. at 190, 322

       N.E.2d at 735. The County relies on this case for the proposition that a party

       does not necessarily have to suffer a “direct injury” in order to have standing to

       bring a suit. However, it is readily distinguishable because there was an

       assertion that the wholesaler’s First Amendment rights were in fact being

       directly impacted by the ordinance. Here, the County is not asserting any


       Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016   Page 12 of 20
       comparable direct impact on a constitutional right, as opposed to a more

       general impact on the County’s citizens’ health.


[22]   Still, we conclude that assertion is sufficient to grant the County standing to

       seek an order compelling INDOT to repair roadwork that allegedly has the

       potential to impact public health and sanitation. Under Indiana’s Home Rule

       Act, it is intended that counties be granted “all the powers that they need for the

       effective operation of government as to local affairs.” I.C. § 36-1-3-2. A county

       may exercise any power it has so long as it is not expressly denied by the

       Indiana Constitution or a statute and it is not expressly granted to another

       entity. I.C. § 36-1-3-5. “Any doubt as to the existence of a power of a unit shall

       be resolved in favor of its existence.” I.C. § 36-1-3-3. It is well understood that

       counties “may regulate certain conduct . . . for the promotion of public health,

       safety, and welfare.” IND. LAW ENCYCLOPEDIA Counties, § 5 p. 202 (2008); see

       also I.C. § 16-20-2-2(a) (requiring counties to establish and maintain a local

       health department unless they elect to create a multi-county health department

       under Indiana Code Chapter 16-20-3). And, counties as units of government

       have the power to sue and be sued. I.C. § 36-1-4-3.


[23]   It is true that the Home Rule Act does not allow a county to “prevent a state

       agency from carrying out statutorily authorized actions.” Indiana Dep’t of

       Natural Res. v. Newton County, 802 N.E.2d 430, 433 (Ind. 2004). In Newton

       County, however, the specific question was whether a county could adopt

       ordinances purporting to trump the State’s authority to acquire land as

       permitted by statute, and our supreme court held that it could not. Id. Here,

       Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016   Page 13 of 20
       the County is not attempting to prevent INDOT from carrying out any activity;

       rather, it is alleging negligence in the manner in which INDOT carried out its

       road maintenance. This would generally be a proper subject for a lawsuit

       against INDOT. See Chanley, 596 N.E.2d at 934.


[24]   We also see no reason why the County would not have standing to make such a

       claim, although this is a unique lawsuit. One standing doctrine that is

       informative here would be the “public standing” doctrine. The public standing

       doctrine applies in cases where public rather than private rights are concerned

       and the enforcement of a public rather than a private right is involved.

       Cittandine, 790 N.E.2d at 983. The public standing doctrine is an exception to

       the general rule that a plaintiff must have a special interest in the outcome of

       litigation different from that of the general public. Id. at 980. Public standing

       principles may be applied to permit actions challenging various governmental

       activities. Id. at 982. In determining whether a plaintiff has shown the requisite

       degree of interest to enable it to maintain an action, courts rely upon the

       plaintiff’s status as a citizen interested in common with other citizens in the

       execution of the law. Old Utica Sch. Pres., Inc. v. Utica Twp., 7 N.E.3d 327, 331-

       32 (Ind. Ct. App. 2014), trans. denied. Even if public standing requirements are

       met, a plaintiff’s suit is still subject to various limitations, such as the Indiana

       Public Lawsuit Act or the requirement of exhaustion of administrative

       remedies. Cittadine, 790 N.E.2d at 983.


[25]   We are not aware of any case where one governmental entity invoked the

       public standing doctrine in order to sue another governmental entity. However,

       Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016   Page 14 of 20
       if the public standing requirements are met, it is unclear why this could not

       occur. In fact, a county arguably is more “public” and would have more

       incentive to vigorously litigate an issue affecting its citizens than would an

       individual private citizen. It has been said that, although a state may act as

       parens patriae on behalf of its citizens, “a county has no sovereign powers and

       cannot act as parens patriae, asserting the claims of its residents.” Bd. of

       Comm’rs of Howard Cty. v. Kokomo City Plan Comm’n, 263 Ind. 282, 295, 330

       N.E.2d 92, 101 (1975). However, later cases have found county standing to sue

       the State or one of its agencies with respect to interpretation of a statute or the

       constitutionality of a statute. See Newton Cty., 802 N.E.2d at 432-33; State ex rel.

       State Bd. of Tax Comm’rs v. Marion Superior Court, Civil Div., Room No. 5, 271 Ind.

       374, 377, 392 N.E.2d 1161, 1164-65 (1979). It is unclear why a county should

       not also have standing in order to file lawsuits attempting to safeguard the

       health and welfare of its citizens.


[26]   Another standing doctrine that is worth considering is associational standing.

       This court has adopted the test for associational standing formulated by the

       United States Supreme Court. That test provides that an “association” has

       standing to sue on behalf of its members if: “‘(a) its members would otherwise

       have standing to sue in their own right; (b) the interests it seeks to protect are

       germane to the organization’s purpose; and (c) neither the claim asserted nor

       the relief requested requires the participation of individual members in the

       lawsuit.’” Save The Valley, Inc. v. Indiana-Kentucky Elec. Corp., 820 N.E.2d 677,

       679–80 (Ind. Ct. App. 2005) (quoting Hunt v. Washington State Apple Advertising


       Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016   Page 15 of 20
       Comm’n, 432 U.S. 333, 344, 97 S. Ct. 2434, 2442 (1977)), aff’d on r’hg, trans.

       denied. “‘If in a proper case the association seeks a declaration, injunction, or

       some other form of prospective relief, it can reasonably be supposed that the

       remedy, if granted, will inure to the benefit of those members of the association

       actually injured.’” Id. (quoting Warth v. Seldin, 422 U.S. 490, 515, 95 S. Ct.

       2197, 2213 (1975)). This court also noted that associational standing promotes

       judicial economy and efficiency by allowing a single lawsuit and plaintiff and to

       avoid repetitive and costly independent actions. Id. at 680 (citing Connecticut

       Ass’n of Health Care Facilities v. Worrell, 508 A.2d 743, 747 (Conn. 1986)).


[27]   Save The Valley concerned a challenge by citizens’ groups to the granting of a

       coal ash landfill permit by the State Department of Environmental

       Management to a power station. Ultimately, this court held the citizens’ groups

       had standing to challenge the granting of the landfill permit. First, the groups’

       members resided, worked, and recreated in the area affected by the landfill, and

       those members would be negatively affected by it and its impact on

       groundwater. Id. at 682. Second, the groups’ aims were to protect the

       environment and advance members’ interest in energy and utility issues, and

       the landfill challenge was germane to those purposes. Id. Third, the groups

       were not seeking monetary damages on behalf of any members, which would

       have required individualized proof, but rather were only challenging the landfill

       permit’s issuance. Id.


[28]   Save the Valley was concerned specifically with judicial review of an

       administrative decision, which is not the case here. However, the associational

       Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016   Page 16 of 20
       standing doctrine as formulated by the Supreme Court did not arise in the

       context of an administrative proceeding and does not seem to necessarily be

       limited to such proceedings. In the Hunt case relied upon by Save the Valley, a

       Washington state agency that represented apple growers challenged the

       constitutionality of a North Carolina statute regulating apple marketing that

       was negatively impacting the apple growers. The Supreme Court held that the

       agency had standing to challenge the statute on behalf of its members, and its

       status as a state agency did not affect that standing. Hunt, 432 U.S. at 344, 97

       S. Ct. at 2442. The Supreme Court also noted the “indicia of membership in an

       organization” the agency possessed, such as that the members elected the

       agency’s directors, only members could serve with the agency, and the members

       alone financed its activities, including the costs of the lawsuit at issue. Id. at

       344-45, 97 S. Ct. at 2442. It also was irrelevant that apple growers were

       required to be members of the agency. Id. at 345, 97 S. Ct. at 2442.


[29]   The County is not an “association” in the traditional sense, as it is not a private

       entity. However, that was deemed irrelevant in Hunt. County residents also

       fund the County through taxes and elect County officials. The complaint here

       alleges that INDOT’s roadwork is threatening to cause environmental and

       health harms to County residents in the form of sewage contamination.

       Protecting the health, safety, and welfare of its citizens is a central purpose of

       the County’s activities. Also, the County is not seeking monetary damages

       from INDOT but only injunctive relief, which would benefit multiple citizens

       and does not require individualized proof. Finally, it would promote judicial


       Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016   Page 17 of 20
       economy and efficiency if the County were allowed to seek remediation of

       septic field damage and sewage leakage on behalf of multiple parties in one

       single lawsuit.3 It is logical to apply associational standing principles to this

       case.


[30]   One final case demonstrating that the County has standing here is King, which

       addressed the City of Gary’s lawsuit against gun manufacturers and dealers.

       The lawsuit sought damages and injunctive relief and made many claims

       against the manufacturers and dealers, including public nuisance and

       negligence. One argument made by the defendants in that case was that the

       City of Gary lacked standing to bring the suit. Our supreme court rejected this

       claim, stating the City of Gary met the standing requirement because it alleged

       “it was financially injured through the sale and use of negligently distributed

       firearms and by alleging a nuisance within its borders caused by the

       defendants.” King, 801 N.E.2d at 1248. Here, although the County is not

       seeking damages, it is alleging that INDOT’s activities have caused an

       environmental or public health risk within its boundaries, which is similar to

       the City of Gary’s claims against the gun manufacturers and dealers.


[31]   In sum, we hold that the County has alleged sufficient facts to allow it to have

       standing to seek injunctive relief against INDOT for negligently-performed




       3
         To that end, it also would be highly inefficient to follow INDOT’s suggestion that the County should first
       sue the private landowners, demanding that they repair the damaged septic fields on their properties, and that
       the landowners could then join INDOT in the lawsuit as a third-party defendant and seek damages for the
       cost of repair to their septic fields. We reject this proposed approach to this case.

       Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016                     Page 18 of 20
       roadwork that could cause environmental or public health concerns within the

       County. Even without considering Parker’s affidavit, it is reasonable to infer

       from the County’s complaint that damage to septic fields could negatively

       impact public health. Any doubts as to whether the County’s allegations are

       sufficiently detailed would be a matter for additional proceedings in this case,

       not for resolution by a motion to dismiss. See Trail v. Boys & Girls Clubs of

       Northwest Indiana, 845 N.E.2d 130, 135 (Ind. 2006) (stating that complaint must

       plead operative facts necessary to set forth an actionable claim but need not set

       out in precise detail the facts upon which the claim is based).4


                                                  Conclusion
[32]   We have reviewed this case as a Trial Rule 12(B)(6) dismissal of a complaint,

       not a granting of summary judgment, and accordingly have disregarded

       Parker’s affidavit in considering the merits of the trial court’s ruling. We hold

       that the trial court erred in dismissing the County’s action for declaratory

       judgment and injunctive relief against INDOT and that the County has

       standing to pursue those claims. We reverse and remand for further

       proceedings consistent with this opinion.


[33]   Reversed and remanded.




       4
        INDOT has not raised any other possible defenses to the County’s lawsuit at this time beyond the question
       of standing and the propriety of seeking declaratory judgment, and any speculation as to such possible
       defenses is beyond the scope of this opinion.

       Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016                   Page 19 of 20
Crone, J., and Pyle, J., concur.




Court of Appeals of Indiana | Opinion 81A01-1603-PL-696 | December 16, 2016   Page 20 of 20
