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Case 1:17-cv-02134-TWP-TAB Document 1 Filed 06/20/17 Page 1 of 8 PageID #: 1

UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

BROWN COUNTY WATER UTILITY, INC.,

Plaintiff,

v. Civil Action No. 1:17-cv-2134

TOWN OF NASHVILLE, INDIANA AND CHARLES


KING, JANE GORE, ALISHA JACOBA, ARTHUR
OMBERG, AND DAVE RUDD, IN THEIR OFFICIAL
CAPACITIES AS NASHVILLE TOWN COUNCIL
MEMBERS,

Defendants.

COMPLAINT FOR INJUNCTIVE RELIEF

Brown County Water Utility, Inc. for its complaint against the Town of Nashville,

Indiana, and Nashville Town Council Members Charles King, Jane Gore, Alisha Jacoba, Arthur

Omberg, Dave Rudd (all named in their official capacities) states the following:

Parties & Jurisdiction

1. Plaintiff Brown County Water Utility, Inc. (Brown County Water) is a

federally-indebted rural not-for-profit corporation in the business of supplying water to

customers in and surrounding Brown County, Indiana.

2. Defendant Nashville, Indiana (the Town) is an Indiana municipality.

3. Defendants Charles King, Jane Gore, Alisha Jacoba, Arthur Omberg, and Dave

Rudd are all members of the Nashville Town Council and are sued here in their official

capacities.

4. This complaint alleges causes of action pursuant to 42 U.S.C. 1983 and 7 U.S.C.

1926(b). This Court, therefore, has federal question jurisdiction pursuant to 28 U.S.C. 1331.
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5. Venue is proper in this court pursuant to 28 U.S.C. 1391(b).

General Allegations

6. Brown County Water is a rural, not-for-profit water company and is an

association pursuant to 7 U.S.C. 1926(b).

7. Brown County Water has roughly 5,339 customers and serves the majority of

Brown County, essentially surrounding Nashville, as well as portions of Bartholomew County,

Johnson County, Morgan County, and Monroe County.

8. On December 17, 2010, Brown County Water incurred indebtedness with the

United States of America, acting by and through the Rural Development Agency of the United

States Department of Agriculture. That debt remains outstanding.

9. The area commonly known as Firecracker Hill, near Nashville, is within Brown

County Waters service area. This area is located near the intersection of Memorial Drive and

Old State Road 46.

10. Until recently, Firecracker Hill has been largely undeveloped.

11. The owners of Big Woods, Quaff On! Brewing Company and Hard Truth

Distilling Co. (hereafter Big Woods) purchased the Firecracker Hill property, in addition to

other nearby property, with plans to build an extensive event center, brewery, and distillery there.

See, e.g., http://www.bcdemocrat.com/2016/12/13/big_woods_keeps_on_growing/ (describing

the planned expansion). Big Woods also operates several other restaurants and brewing facilities

in central Indiana.

12. The Town recently annexed the approximately 93 acres commonly known as

Firecracker Hill near Nashville. A true and correct copy of the Annexation Ordinance, Town

of Nashville Ordinance 2017-02, is attached hereto as Exhibit A.

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13. The Town has contracted with Big Woods to provide water services to its

Firecracker Hill facilities. A true and correct copy of that contract is attached hereto as Exhibit

B.

14. The Big Woods facility at Firecracker Hill is expected to use a substantial amount

of water and will be a significant customer of its water service provider.

15. The Town and Brown County Water dispute which of them has the right to

provide water to Big Woods at Firecracker Hill.

16. Brown County Water is entitled to serve Big Woods at Firecracker Hill pursuant

to 7 U.S.C. 1926(b).

17. The Town, acting by and through the Town Council under color of state law, is

impermissibly attempting to curtail and limit Brown County Waters right to provide water to

customers within its service area, namely its right to provide water services to Big Woods

Firecracker Hill facilities.

18. Brown County Water has the ability and capacity to serve the Big Woods facility

at Firecracker Hill.

19. More specifically, Brown County Water has pipes in the ground that are

approximately 160 feet from the Big Woods property line.

20. Brown County Water currently serves a customer on property adjacent to the Big

Woods property.

21. Brown County Water could provide water to Big Woods within one week using

the two-inch pipe currently adjacent to the property. For the anticipated long-term usage by Big

Woods, Brown County Water has plans to upgrade to a six inch pipe, which would be able to

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provide up to 1,000,000 gallons per month. Brown County Water will be able to serve Big

Woods at this capacity before Big Woods September 2017 opening date.

Count I
(7 U.S.C. 1926(b) Violation)

22. Plaintiff alleges and incorporates by reference the allegations in the paragraphs

above.

23. 7 U.S.C. 1926(b) provides that [t]he [water] service provided or made

available through any [federally indebted] association shall not be curtailed or limited by

inclusion of the area served by such association within the boundaries of any municipal

corporation or other public body.

24. Brown County Water is an association within the meaning of 7 U.S.C.

1926(b).

25. Brown County Water has a qualifying outstanding USDA loan obligation within

the meaning of 7 U.S.C. 1926(b).

26. Brown County Water has made water service available to the Firecracker Hill

area in question. More specifically Brown County Water has pipes in the ground and has the

capacity to serve Big Woods at Firecracker Hill.

27. The Town is a public body or municipal corporation pursuant to 7 U.S.C.

1926(b).

28. The Towns actions, as described more fully above, are in violation of 7 U.S.C.

1926(b).

29. The Towns actions have and will continue to cause harm to Brown County

Water.

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Count II
(Injunctive Relief)

30. Plaintiff alleges and incorporates by reference the allegations in the paragraphs

above.

31. Brown County Water is likely to succeed on the merits of its 7 U.S.C. 1926(b)

claim.

32. The Towns actions have and will continue to cause harm to Brown County

Water.

33. Absent an injunction, Brown County Water has no remedy at law and faces

irreparable harm.

34. The balance of harm weighs in Brown County Waters interests.

35. An injunction is in the publics interests, as the Towns actions will cause harm to

the public, including Brown County Waters other customers.

36. Brown County Water is entitled to a preliminary injunction, later to be made

permanent, prohibiting the Town from encroaching on its service area, and more specifically

enjoining the Town from serving Brown County Waters rightful customer, Big Woods at

Firecracker Hill.

Count III
(Declaratory Judgment)

37. Plaintiff alleges and incorporates by reference the allegations in the paragraphs

above.

38. This claim is brought pursuant to 28 U.S.C. 2201 and 2202, seeking a

declaration of the rights and legal relations of the parties.

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39. As described herein, there exists an actual and genuine controversy between

Brown County Water and the Town as it relates to providing water service to Big Woods at

Firecracker Hill.

40. Pursuant to 28 U.S.C. 2201, Brown County Water requests and the Court may

now declare the rights and other legal relations of the parties. The Court may grant further

necessary or proper relief based on its declaratory judgment in this action pursuant to 28 U.S.C.

2202.

Count IV
(Civil Rights Violation)

41. Plaintiff alleges and incorporates by reference the allegations in the paragraphs

above.

42. The Town, acting under color of state law, is depriving Brown County Water of

its rights under federal law.

43. 42 U.S.C. 1983, therefore, provides a vehicle through which to pursue a 7

U.S.C. 1926(b) violation.

44. Brown County water is entitled to an award of attorneys fees pursuant to 42

U.S.C. 1988.

WHEREFORE, Brown County Water respectfully requests that the Court

a) enter judgment in its favor and against the Town;

b) declare that Section 1926(b) prohibits the Town from encroaching upon Brown

County Waters service area, specifically prohibiting the Town from providing

water service to Big Woods and the Firecracker Hill area;

c) enjoin the Town from providing water services to Big Woods at Firecracker Hill;

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d) award Brown County Water its attorneys fees and costs; and

e) award Brown County Water all other relief the Court deems just and proper.

Respectfully submitted,

Date: June 20, 2017 /s/ Harmony A. Mappes


Peter Campbell King (#5394-03)
CLINE, KING & KING, P.C.
675 Reves Way, Suite B, PO Box 250
Columbus, IN 47202-0250
T: (812) 372-8461
F: (812) 372-2544
pck@lawdogs.com

Harmony A. Mappes (#27237-49)


Justin R. Olson (#31450-49)
FAEGRE BAKER DANIELS LLP
300 N. Meridian St., Suite 2700
Indianapolis, IN 46204
T. (317) 237-0300
F. (317) 237-1000
Harmony.Mappes@FaegreBD.com
Justin.Olson@FaegreBD.com

Counsel for Plaintiff Brown County Water


Utility, Inc.

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Certificate of Service

I certify that on June 20, 2017, I filed a copy of the foregoing Complaint electronically.
A copy of this complaint will be served on the following entities and individuals by certified
mail:

TOWN OF NASHVILLE
200 Commercial Street
PO Box 446
Nashville, Indiana 47448

Charles Buzz King, President


Nashville Town Council
PO Box 1040
Nashville, IN 47448
bking@townofnashville.org

Jane Gore, Vice-President


PO Box 9
Nashville, IN 47448
jgore@townofnashville.org

Alisha Jacoba, Council Member


412 Wells Dr
Nashville, IN 47448-9567
agredy@townofnashville.org

Arthur Omberg, Council Member


PO Box 20
Nashville, IN 47448-0020
aomberg@townofnashville.org

Dave Rudd, Council Member


PO Box 503
Nashville, IN 47448
drudd@townofnashville.org

/s/ Harmony A. Mappes


Harmony A. Mappes