                                                                              FILED
                                                                         Feb 21 2019, 9:03 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Curtis T. Hill, Jr.                                        James D. Johnson
      Attorney General of Indiana                                Blair M. Gardner
                                                                 Jackson Kelly PLLC
      Frances Barrow                                             Evansville, Indiana
      Deputy Attorney General
      Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Commissioner of the Indiana                                February 21, 2019
      Department of Environmental                                Court of Appeals Case No.
      Management,                                                18A-MI-1379
      Appellant-Petitioner,                                      Appeal from the Vanderburgh
                                                                 Superior Court
              v.                                                 The Honorable Leslie C. Shively,
                                                                 Judge
      Eagle Enclave Development,                                 Trial Court Cause No.
      LLC,                                                       82D01-1707-MI-3721
      Appellee-Respondent.



      Najam, Judge.


                                         Statement of the Case
[1]   The Commissioner of the Indiana Department of Environmental Management

      (“IDEM”) appeals the trial’s court denial of its Indiana Trial Rule 12(B)(6)

      Court of Appeals of Indiana | Opinion 18A-MI-1379 | February 21, 2019                       Page 1 of 16
      motion to dismiss counterclaims filed by Eagle Enclave Development

      (“Eagle”). IDEM presents a single issue for our review, namely, whether the

      trial court erred when it denied IDEM’s motion to dismiss.


[2]   We reverse and remand with instructions.


                                  Facts and Procedural History
[3]   Eagle owns and operates a development in Evansville. Eagle obtained a permit

      in order to remove vegetation and soil and to discharge storm water associated

      with the construction of its development. Between September 30, 2013, and

      June 17, 2014, IDEM conducted four inspections of Eagle’s development site.

      During those inspections, IDEM observed that Eagle had violated Indiana law

      when it failed to minimize sedimentation to off-site areas. Specifically, IDEM

      observed thick sediment deposits in an off-site pond owned by an individual

      named Barbara Bolin. As a result of the violations, IDEM issued a Notice of

      Violation to Eagle on July 30, 2014.


[4]   In order to resolve the violations, Eagle and IDEM entered into an Agreed

      Order on January 23, 2015. Pursuant to the terms of the Agreed Order, Eagle

      agreed to “submit a plan including the specific actions [Eagle] will take to

      remove any sediment attributable to the activities at the Site from the off-site

      pond owned by Barbara Bolin.” Appellant’s App. Vol. II at 28. Eagle also

      agreed to include in the plan a schedule for implementation and completion of

      all required actions. The Agreed Order further provided:



      Court of Appeals of Indiana | Opinion 18A-MI-1379 | February 21, 2019     Page 2 of 16
              In the event IDEM determines that any plan submitted by
              [Eagle] is deficient or otherwise unacceptable, [Eagle] shall revise
              and resubmit the plan to IDEM in accordance with IDEM’s
              notice. After three (3) submissions of any plan by [Eagle], IDEM
              may modify and approve any plan and [Eagle] must implement
              the plan, as modified by IDEM.


      Id. at 29. And, “[i]n recognition of the settlement reached,” Eagle agreed to

      “waive[] any right to administrative or judicial review of this Agreed Order.”

      Id. at 27.


[5]   Eagle then had two studies conducted in order to determine the amount of

      sediment in the Bolin pond that was attributable to Eagle’s actions. Based on

      those studies, Eagle concluded that only an “inconsequential” amount of

      sediment in the Bolin pond had come from Eagle’s development. Id. at 36.

      Accordingly, on June 1, 2016, Eagle wrote a letter to IDEM in which Eagle

      asked IDEM to modify the Agreed Order. Specifically, Eagle requested that

      IDEM remove the requirement for Eagle to dredge the pond. In exchange,

      Eagle offered to donate property to IDEM in order to act as a buffer to control

      runoff from Eagle’s development. IDEM responded that Indiana law does not

      establish a threshold amount of sediment runoff that constitutes a violation but,

      rather, the mere fact that sediment was discharged from the site was sufficient

      to be a violation. Because sediment had left Eagle’s property and entered the

      Bolin pond, and because “[t]he requirement to remove the sediment from the

      off-site pond is necessary to remediate . . . the violations,” IDEM denied

      Eagle’s request to modify the Agreed Order. Id. at 39.


      Court of Appeals of Indiana | Opinion 18A-MI-1379 | February 21, 2019      Page 3 of 16
[6]   Thereafter, Eagle filed a petition for review with the Office of Environmental

      Adjudication (“OEA”) in which Eagle requested the OEA to declare the waiver

      provision of the Agreed Order void for lack of notice and to find that IDEM’s

      denial of Eagle’s modification request was an abuse of agency discretion. Eagle

      then filed a motion for partial summary judgment. In response, IDEM filed a

      motion to dismiss Eagle’s petition or, in the alternative, enter summary

      judgment for IDEM. The OEA granted IDEM’s motion to dismiss and cross-

      motion for summary judgment. As to Eagle’s first claim, the OEA concluded

      that Eagle’s appeal of the wavier provision of the Agreed Order was not timely.

      As to Eagle’s second claim, the OEA concluded that IDEM’s letter denying

      Eagle’s request to modify the Agreed Order was not a reviewable order under

      the Indiana Administrative Order and Procedures Act (“AOPA”). And the

      OEA determined that Eagle’s June 1, 2016, request to modify the Agreed Order

      “should be considered [Eagle’s] first proposal” required by the Agreed Order.

      Id. at 47.


[7]   In light of the OEA’s findings and conclusions, IDEM considered Eagle’s

      request for modification as its first proposed plan. IDEM then informed Eagle

      that its plan was deficient because the proposal did not describe the actions

      Eagle would take to remove sediment from the Bolin pond. In response, Eagle

      proposed a second plan to IDEM. In the second plan, Eagle again stated that

      any sediment discharge from its development site to the Bolin pond was

      “insignificant” and requested that IDEM remove the requirement that Eagle




      Court of Appeals of Indiana | Opinion 18A-MI-1379 | February 21, 2019    Page 4 of 16
      dredge the pond. Id. at 53. Eagle again proposed donating a portion of its

      property to serve as a buffer to control runoff.


[8]   IDEM then filed a petition for civil enforcement of the Agreed Order.1 In that

      petition, IDEM asserted that Eagle had failed to comply with all of the terms

      and conditions of the Agreed Order. Specifically, IDEM asserted that Eagle

      had “failed to comply with paragraph 6 of the Order Section of the Agreed

      Order by submitting a plan that includes actions to be taken to remove any

      sediment attributable to the activities at the Site from the off-site pond owned

      by Barbara Bolin.” Id. at 19. IDEM asked the court to order Eagle to comply

      with the Agreed Order.


[9]   Eagle filed its response and affirmative defenses. In addition, Eagle asserted

      three counterclaims against IDEM. First, Eagle claimed that IDEM had failed

      to provide adequate notice to Eagle that it had agreed to waive its right to seek

      judicial or administrative review of the Agreed Order, which notice was

      required by AOPA. Eagle asserted that IDEM’s failure to provide adequate

      notice of the waiver provision rendered that provision void. Second, Eagle

      claimed that IDEM’s denial of Eagle’s June 1, 2016, request to modify the

      Agreed Order was an appealable order under AOPA and that it was an abuse of

      agency discretion for IDEM to deny Eagle’s request. And, third, Eagle




      1
        Indiana Code Section 4-21.5-6-1 provides that, in addition to any other remedy provided by law, the
      attorney general in the name of the state at the request of a state agency “may apply for a court order in a
      circuit or superior court to enforce an order issued under this article by a verified petition for civil
      enforcement.”

      Court of Appeals of Indiana | Opinion 18A-MI-1379 | February 21, 2019                               Page 5 of 16
       contended that IDEM does not have jurisdiction over the pond because it is

       privately owned.


[10]   IDEM filed a motion to dismiss Eagle’s counterclaims under Indiana Trial Rule

       12(B)(6). In its motion to dismiss, IDEM contended that the trial court should

       dismiss Eagle’s first counterclaim because Eagle had waived its right to seek

       administrative and judicial review of the Agreed Order and that Eagle’s first

       counterclaim was simply an attempt to renegotiate the terms of the Agreed

       Order. IDEM contended that Eagle’s second counterclaim must fail because

       IDEM’s letter rejecting Eagle’s proposed modification was not an appealable

       order as it did not alter the effectiveness of the Agreed Order or otherwise

       “determine a legal right, duty, privilege, immunity, or other legal interest.” Id.

       at 80. Rather, IDEM asserted that all of Eagle’s duties were established in the

       Agreed Order and that the letter was “merely a statement or clarification by

       IDEM regarding what was already determined and agreed to in the Agreed

       Order[.]” Id. Finally, IDEM asserted that the trial court must dismiss Eagle’s

       third counterclaim because Eagle had waived any right to administrative or

       judicial review of the Agreed Order, because Eagle is “far past” the thirty-day

       deadline to seek judicial review of the order, and because Eagle had waived the

       question of IDEM’s jurisdiction by failing to raise it before the OEA. Id. at 82.

       Following a telephonic hearing, the trial court denied IDEM’s motion to

       dismiss. The trial court certified its order for interlocutory appeal, which we

       accepted.




       Court of Appeals of Indiana | Opinion 18A-MI-1379 | February 21, 2019     Page 6 of 16
                                       Discussion and Decision
[11]   IDEM contends that the trial court erred when it denied IDEM’s Indiana Trial

       Rule 12(B)(6) motion to dismiss Eagle’s counterclaims. 2 As the Indiana

       Supreme Court has stated:


               We review de novo the trial court’s grant or denial of a motion
               based on Indiana Trial Rule 12(B)(6). Babes Showclub v. Lair, 918
               N.E.2d 308, 310 (Ind. 2009). Such a motion tests the legal
               sufficiency of a claim, not the facts supporting it. Charter One
               Mortgage Corp. v. Condra, 865 N.E.2d 604, 604 (Ind. 2007).
               Viewing the complaint in the light most favorable to the non-
               moving party, we must determine whether the complaint states
               any facts on which the trial court could have granted relief. Id. at
               604-05.


       Caesars Riverboat Casino, LLC v. Kephart, 934 N.E.2d 1120, 1122 (Ind. 2010).


                                                Counterclaim One

[12]   IDEM first contends that the trial court erred when it denied IDEM’s motion to

       dismiss Eagle’s first counterclaim, which claimed that the waiver provision of

       the Agreed Order was void for lack of notice. Specifically, IDEM asserts that

       the trial court should have dismissed Eagle’s first counterclaim because Eagle

       had raised the same issue before the OEA and received an adverse judgment

       but did not seek judicial review of that judgment. Eagle agrees and




       2
         IDEM also filed a motion to stay discovery pending the outcome of its motion to dismiss, which motion
       the trial court denied at the same time it denied IDEM’s motion to dismiss. However, IDEM makes no
       argument on appeal that the trial court erred when it denied IDEM’s motion to stay discovery.

       Court of Appeals of Indiana | Opinion 18A-MI-1379 | February 21, 2019                         Page 7 of 16
       acknowledges that its first counterclaim is improper because the OEA’s

       judgment “became final” when Eagle did not seek review of that judgment.

       Appellee’s Br. at 12. Accordingly, Eagle “now abandons this claim” and agrees

       that it should be dismissed. Id. We therefore need not address IDEM’s

       contention that the trial court erred when it denied IDEM’s motion to dismiss

       Eagle’ first counterclaim for lack of notice.


                                                Counterclaim Two

[13]   IDEM next contends that the trial court erred when it did not dismiss Eagle’s

       second counterclaim, which asserted that IDEM’s August 12, 2016, letter

       denying Eagle’s request to modify the Agreed Order was a final order under

       AOPA and that it was an abuse of agency discretion for IDEM to deny Eagle’s

       request. IDEM specifically asserts that Eagle is precluded from asserting that

       counterclaim because Eagle had raised the same issue before the OEA and had

       received an adverse judgment but did not timely seek judicial review of that

       judgment. In essence, IDEM contends that Eagle is using the second

       counterclaim as an indirect and improper means to belatedly seek judicial

       review of an issue that had already been adjudicated by the OEA. We must

       agree.


[14]   Here, Eagle voluntarily entered into the Agreed Order in which it agreed to

       submit a plan that included the specific actions Eagle would take to remove the

       sediment attributable to its actions from the pond. After Eagle had conducted

       tests and determined that only an “inconsequential” amount of sediment was

       attributable to its actions, Eagle requested that IDEM modify the Agreed Order.
       Court of Appeals of Indiana | Opinion 18A-MI-1379 | February 21, 2019   Page 8 of 16
       Appellant’s App. Vol. II at 36. When IDEM declined to modify the Agreed

       Order, Eagle filed a complaint with the OEA in which it alleged that IDEM’s

       denial of the modification request was an abuse of agency discretion. But the

       OEA concluded that IDEM’s letter denying Eagle’s request was not a

       reviewable order under AOPA as the letter did not order Eagle to take any

       action.


[15]   On April 27, 2017, the OEA issued its order in which it concluded that IDEM’s

       letter was not a reviewable order under AOPA. A final order of the OEA’s

       environmental law judge “is subject to judicial review under IC 4-21.5-5.” Ind.

       Code § 13-30-3-7 (2018). And Indiana Code Section 4-21.5-5-4(b)(1) provides

       that a person who “fails to . . . timely petition for review of an order . . . has

       waived the person’s right to judicial review[.]” Indeed, the OEA’s order

       indicated that it “is a Final Order subject to Judicial Review consistent with the

       applicable provisions of I.C. § 4-21.5. Pursuant to I.C. § 4-21.5-5-5, a Petition

       for Judicial Review of this Final Order is timely only if it is filed . . . within

       thirty (30) days . . . .” Appellant’s App. Vol. II at 47. There is no dispute that

       Eagle did not timely file a petition for judicial review of that order.

       Accordingly, Eagle waived its right to seek judicial review of the OEA’s order.


[16]   Still, Eagle asserts that it is not precluded from raising its second counterclaim

       because the OEA’s decision “was not final as to the ultimate question—whether

       IDEM arbitrarily denied its requested modification—that Eagle . . . prematurely

       sought to answer.” Appellee’s Br. at 14. Eagle is correct that the OEA did not

       reach the merits of its claim. But the OEA concluded that it was not able to

       Court of Appeals of Indiana | Opinion 18A-MI-1379 | February 21, 2019         Page 9 of 16
       reach the merits of Eagle’s claim because IDEM’s letter was not a reviewable

       order under AOPA. As discussed above, the OEA’s decision was a final order

       subject to judicial review. If Eagle believed that the OEA was incorrect and

       that IDEM’s letter was a reviewable order, Eagle should have challenged the

       OEA’s order by seeking judicial review. But Eagle did not, which rendered the

       OEA’s conclusion that IDEM’s letter was not a reviewable order under AOPA

       final. Because Eagle waived its right to seek judicial review of the OEA’s order,

       Eagle cannot now raise that same issue in a counterclaim before the trial court.

       The trial court therefore erred when it denied IDEM’s motion to dismiss

       Eagle’s second counterclaim.3


                                                Counterclaim Three

[17]   Finally, IDEM contends that the trial court erred when it did not dismiss

       Eagle’s third counterclaim, which asserted that IDEM does not have

       jurisdiction over the pond. Specifically, IDEM contends that the trial court

       erred when it denied IDEM’s motion to dismiss that counterclaim because

       Eagle had waived the issue of IDEM’s jurisdiction when Eagle had failed to

       raise that issue before the OEA. In essence, IDEM asserts that the trial court




       3
          To the extent that Eagle asserts that IDEM “opened the door” to Eagle’s second counterclaim when IDEM
       filed the petition for civil enforcement after Eagle had only submitted two proposed plans, Eagle has not cited
       any authority to support its position that that counterclaim is properly before the trial court despite the fact
       that Eagle did not timely seek judicial review of the OEA’s order. Appellant’s Br. at 17.

       Court of Appeals of Indiana | Opinion 18A-MI-1379 | February 21, 2019                             Page 10 of 16
       should have dismissed Eagle’s third counterclaim because Eagle had failed to

       exhaust its administrative remedies.4


[18]   Our Supreme Court has addressed whether the issue of jurisdiction can be

       raised without having completed the administrative process. In Indiana

       Department of Environmental Management v. Twin Eagle LLC, a developer filed a

       declaratory judgment action in which it sought to prevent IDEM from

       enforcing state laws against its project. 798 N.E.2d 839, 842 (Ind. 2003).

       IDEM responded and filed a motion to dismiss the developer’s action due to

       the developer’s failure to exhaust its administrative remedies, and both parties

       filed motions for summary judgment. Id. The trial court concluded that

       Indiana’s environmental laws did not give IDEM regulatory authority over

       private ponds or isolated wetlands and granted the developer’s motion for

       summary judgment. Id. at 843.


[19]   IDEM appealed to the Indiana Supreme Court and asserted that the trial court

       lacked subject matter jurisdiction over the developer’s claim because the

       developer had failed to exhaust its administrative remedies. Id. The Indiana

       Supreme Court reiterated the “value of completing administrative proceedings

       before resorting to judicial review.” Id. at 844. But the Court went on to state

       that, “generally, if an action is brought upon the theory that the agency lacks




       4
          IDEM makes no argument in its brief on appeal that the waiver provision of the Agreed Order precludes
       Eagle from asserting its third counterclaim. Indeed, IDEM acknowledges that Eagle could have “raised this
       issue in its OEA appeal.” Appellant’s Br. at 16.

       Court of Appeals of Indiana | Opinion 18A-MI-1379 | February 21, 2019                        Page 11 of 16
       the jurisdiction to act in a particular area, exhaustion of remedies is not

       required.” Id.


[20]   Nonetheless, the Court also stated that, in order for IDEM to have the authority

       to regulate specific waters, the body of water at issue must fall under the

       statutory definition of “waters.” Id. at 846. The Court further noted that the

       statutory term “waters” does not include a private pond, which is “a body of

       water wholly upon the land of a single owner or group of owners and not

       connected with any public waters of the state.” Id. (citing Trowbridge v. Torabi,

       693 N.E.2d 622, 627 (Ind. Ct. App. 1998)). And the Court held that whether

       the developer’s project “involves ponds within this definition” was a fact issue

       “for administrative determination in the first instance.” Id. at 846-47. The

       Court further stated that, even if the developer were correct and the particular

       waters at issue were not subject to regulation, “the proper forum to address this

       fact sensitive issue is through the administrative process.” Id. at 845.


[21]   Accordingly, while the Twin Eagle Court stated that the exhaustion of

       administrative remedies is generally not required if the action is brought under

       the theory that an agency lacks jurisdiction, it is clear that that exception only

       applies where the question of the agency’s jurisdiction presents a pure question

       of law. Thus, where the question of an agency’s jurisdiction turns on a question

       of fact, resort to the administrative process is still a condition precedent to

       judicial review.




       Court of Appeals of Indiana | Opinion 18A-MI-1379 | February 21, 2019      Page 12 of 16
[22]   Our Court addressed a similar issue in Outboard Boating Club of Evansville, Inc., v.

       Indiana State Department of Health, 952 N.E.2d 340 (Ind. Ct. App. 2011). In

       Outboard Boating Club, the owners of two private boat club facilities received

       notices from the Indiana State Department of Health (“ISDH”) that the clubs

       were in violation of a provision of Indiana law applicable to campgrounds. Id.

       at 342. The clubs filed a declaratory judgment action asserting that ISDH

       lacked jurisdiction to regulate their facilities because the facilities were not

       “campgrounds” within the statutory definition. Id. ISDH filed a motion to

       dismiss in which it alleged that the trial court lacked subject matter jurisdiction

       to hear the case because the clubs had failed to exhaust their administrative

       remedies. Id. The trial court granted ISDH’s motion to dismiss. Id.


[23]   On appeal, the clubs asserted that the trial court erred when it concluded that it

       lacked subject matter jurisdiction because the clubs were not required to

       exhaust their administrative remedies since their action challenged ISDH’s

       jurisdiction to regulate their facilities. Id. at 344. This Court stated that “the

       clubs d[id] not argue that the ISDH lack[ed] general authority to regulate

       campgrounds. Rather, they argue[d] that their facilities [were] outside the

       ISDH’s regulatory jurisdiction because they d[id] not fall within the regulatory

       definition of campgrounds.” Id. at 346. Because the clubs did not question

       ISDH’s general authority over campgrounds but, instead, challenged ISDH’s

       authority over a particular campground, this Court held that the club’s question

       of ISDH’s jurisdiction “over a particular site is precisely the type of fact

       sensitive issue the Twin Eagle court concluded should be resolved in the first

       Court of Appeals of Indiana | Opinion 18A-MI-1379 | February 21, 2019      Page 13 of 16
       instance by the administrative agency.” Id. at 345. Accordingly, this Court

       concluded that the clubs were required to exhaust their administrative remedies

       before the trial court could hear the action. Id. at 347.


[24]   Here, Eagle asserts that it did not need to exhaust its administrative remedies

       before raising counterclaim three to the trial court because that counterclaim

       raised the question of IDEM’s jurisdiction. But Eagle does not challenge

       IDEM’s general authority to regulate waters. Rather, Eagle contends that the

       particular water at issue is not subject to IDEM’s jurisdiction. To support its

       assertion that IDEM does not have jurisdiction over the pond, Eagle cites

       Indiana Code Section 13-11-2-265(a), which defines “waters” as “(1) the

       accumulation of water, surface or underground, natural and artificial, public

       and private; or (2) a part of the accumulations of water.” Eagle also cites to

       Indiana Code Section 13-11-2-265(b)(2), which specifically excludes “a private

       pond” from the definition of “waters.” Eagle then contends that, because the

       Bolin pond is privately owned, it is not a “water” subject IDEM’s jurisdiction.

       IDEM responds that the “Bolin pond is not a private pond because it is

       connected with public waters of the state.” Reply Br. at 9.


[25]   The parties’ arguments demonstrate that, as in Outboard Boating Club, here the

       question is not whether IDEM has the general authority to regulate waters but

       whether the Bolin pond is a private pond or whether the pond is connected to

       public waters of the State. Eagle’s question of IDEM’s jurisdiction “over a

       particular site is precisely the type of fact-sensitive issue the Twin Eagle court

       concluded should be resolved in the first instance by the administrative

       Court of Appeals of Indiana | Opinion 18A-MI-1379 | February 21, 2019      Page 14 of 16
       agency.” Outboard Boating Club of Evansville, Inc., 952 N.E.2d at 345. Because

       the question of whether the Bolin pond is subject to IDEM’s jurisdiction is one

       of fact and not one of law, “the proper forum to address this fact sensitive issue

       is through the administrative process.” Twin Eagle, 798 N.E.2d at 845.

       Accordingly, Eagle was required to raise the question of IDEM’s jurisdiction to

       the administrative agency before it could raise it to the trial court. See Outboard

       Boating Club of Evansville, Inc., 952 N.E.2d at 347. Because Eagle did not raise

       the factual issue of IDEM’s jurisdiction to the administrative agency first, Eagle

       has not preserved for the trial court’s review Eagle’s claim that IDEM lacks

       jurisdiction over the Bolin pond. The trial court therefore erred when it denied

       IDEM’s motion to dismiss Eagle’s third counterclaim.


                                                     Conclusion

[26]   In sum, we need not address IDEM’s contention that the trial court erred when

       it did not dismiss Eagle’s first counterclaim as Eagle has abandoned that

       counterclaim. We hold that the trial court erred when it denied IDEM’s

       motion to dismiss Eagle’s second counterclaim because the OEA had already

       adjudicated that issue and because Eagle failed to timely seek judicial review of

       the OEA’s order. We also hold that the trial court erred when it denied

       IDEM’s motion to dismiss Eagle’s third counterclaim because Eagle has not

       preserved the question of IDEM’s jurisdiction for the trial court’s review as it is

       a fact-sensitive question that must be raised for the first time before the

       administrative agency. Accordingly, we reverse the trial court’s order denying



       Court of Appeals of Indiana | Opinion 18A-MI-1379 | February 21, 2019     Page 15 of 16
       IDEM’s motion to dismiss, and we remand with instructions for the trial court

       to dismiss Eagle’s three counterclaims.5


[27]   Reversed and remanded with instructions.


       Pyle, J., and Altice, J., concur.




       5
         Throughout its brief, Eagle asserts that IDEM wrongly filed its petition for civil enforcement. Specifically,
       Eagle contends that IDEM was bound by the Agreed Order and the OEA’s decision, which both precluded
       IDEM from filing its petition before Eagle submitted its third plan. Eagle also asserts that IDEM should
       have filed a declaratory judgment action instead of the petition for civil enforcement. However, Eagle did
       not raise either of those issues in the trial court. “It is well settled that we generally will not address an
       argument that was not raised in the trial court and is raised for the first time on appeal.” Leatherman v. State,
       101 N.E.3d 879, 885 (Ind. Ct. App. 2018). Accordingly, we will not consider Eagle’s arguments that IDEM
       improperly filed its petition or that IDEM should have instead filed a declaratory judgment action.

       Court of Appeals of Indiana | Opinion 18A-MI-1379 | February 21, 2019                               Page 16 of 16
