Save the Valley, Inc., et al. v. Indiana-Kentucky Electric Corporation and Indiana Department of Environmental Management

FOR PUBLICATION
 
ATTORNEY FOR APPELLANTS:    ATTORNEYS FOR APPELLEE,
     Indiana-Kentucky Electric Corporation:
MICHAEL A. MULLETT    
Mullett Polk & Associates, LLC     ANTHONY C. SULLIVAN
Indianapolis, Indiana     BRYAN G. TABLER
     Barnes & Thornburg, LLP
ATTORNEYS FOR AMICUS CURIAE:    Indianapolis, Indiana

HOWARD A. LEARNER    ATTORNEYS FOR APPELLEE,
SHANNON FISK    Indiana Department of
Environmental Law and Policy Center     Environmental Management:
Chicago, Illinois
STEVE CARTER
WILLIAM R. GROTH     Attorney General of Indiana
Fillenwarth Dennerline Groth & Towe
Indianapolis, Indiana      JOBY JERRELLS
     Deputy Attorney General
    Indianapolis, Indiana

 
     IN THE COURT OF APPEALS OF INDIANA SAVE THE VALLEY, INC., HOOSIER ) ENVIRONMENTAL COUNCIL, INC., and ) CITIZENS ACTION COALITION OF ) INDIANA, INC., ) ) Appellants-Respondents-Defendants, ) ) vs. ) No. 49A04-0312-CV-610 ) INDIANA-KENTUCKY ELECTRIC ) CORPORATION, ) ) Appellee-Petitioner-Plaintiff, ) ) INDIANA DEPARTMENT OF ) ENVIRONMENTAL MANAGEMENT, ) ) Appellee-Petitioner. )
    APPEAL FROM THE MARION SUPERIOR COURT
    The Honorable Michael D. Keele, Judge
    Cause No. 49F12-0307-MI-2024 and 49F12-0307-PL-2327

 
 
    March 31, 2005

 
    OPINION ON REHEARING - FOR PUBLICATION
 
BARNES, Judge

We grant the Appellees' petitions for rehearing; however, we affirm our opinion in all regards. We issue this opinion on rehearing to address an argument raised by IKEC for the first time in its petition for rehearing and to clarify the issue of the trial court's subject matter jurisdiction.
IKEC argues in its petition for rehearing, "OEA did not have before it a petition meeting the requirements of the Statute within the 15-day deadline and thus did not acquire jurisdiction over the case." IKEC's Petition for Rehearing p. 12. It does not appear, however, that IKEC made this argument in its appellate brief. Any question that has not been argued in the briefs on appeal cannot be raised for the first time in a petition for rehearing. Holmes v. AC & S, Inc., 711 N.E.2d 1289, 1290 (Ind. Ct. App. 1999), trans. denied. The petition is to be confined to those issues that were properly presented in the initial appeal and which were overlooked or improperly decided. Id. at 1291. Accordingly, IKEC waives this issue.
IKEC also asserts that the trial court had subject matter jurisdiction for a number of reasons that were not addressed in our opinion. To the contrary, however, because the Appellants had associational standing to seek administrative review and the OEA had jurisdiction over the case, it necessarily follows that the trial court was without subject matter jurisdiction and that the Appellees must comply with AOPA procedures for seeking judicial review.

NAJAM, J., and SULLIVAN, J., concur.