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Scattering Fork Drainage Dist. v. Ogilvie

MAY 2, 1974.

SCATTERING FORK DRAINAGE DISTRICT ET AL., PLAINTIFFS-APPELLANTS,

v.

RICHARD B. OGILVIE ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Douglas County; the Hon. FREDERICK S. GREEN, Judge, presiding.

MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 5, 1974.

Plaintiffs-Appellants Scattering Fork Drainage District in the County of Douglas and State of Illinois, a body politic and corporate, Bruce T. Williams, and John Warfel, appeal from a judgment of the circuit court of Douglas County which dismissed each count of their amended complaint with prejudice. The trial judge's ruling and the reasons in support thereof are embodied in the record in the form of a comprehensive written opinion. It appears that he found that each count of the complaint failed to state a cause of action upon which injunctive relief could be based. The trial judge stated at the conclusion of the opinion, "Plaintiffs' theories are ingenious; however, the Court believes the complaint to be insufficient to allege any reason why the named officials should be enjoined from executing the proposed agreement." (Emphasis added.)

The complaint in question consists of nine counts. Each of these counts have, in common, the following factual averments: The Congress of the United States, by virtue of Public Law 89-298, approved Oct. 27, 1965, authorized the construction of a water reservoir project, to be known as the Lincoln Reservoir, to be located on the Embarras River and which would be spread over portions of the Counties of Coles, Douglas and Cumberland. The Act authorized the United States Corps of Engineers to enter into an agreement with the State of Illinois whereby the Corps would construct the reservoir. Congress will not provide funding for the project until the State of Illinois enters into an agreement with the Federal government concerning the subjects of water supply and recreation as they relate to the project. The State must also agree to make certain financial commitments in order to receive Federal funds.

Each count of the complaint asserts that the described agreements would violate the Constitution of the State of Illinois and infringe other rights of the plaintiffs. Plaintiffs allege that they have no adequate remedy at law, that they will suffer irreparable damage and seek an injunction restraining defendants from entering into the agreements with the Federal Government.

The State of Illinois enabling legislation concerning the Lincoln Reservoir is to be found in the following statutes: Public Act 76-2540, Laws of Illinois, page 1040, which provides in pertinent part:

"Section 1. The Department of Public Works and Buildings is designated as the State agency to work with the Federal Government toward development of the Lincoln Reservoir Project on the Embarras River in general conformity with the provisions of `Interim Report No. 2, Wabash River Basin Comprehensive Study, Indiana, Ohio and Illinois', prepared by the Louisville District, U.S. Army Corps of Engineers. The Department shall work in close cooperation with other units of State government toward rapid implementation of the project.

Section 2. The Department is authorized to enter into agreements with the Federal Government to provide for financial contributions toward the water supply, recreation, and stream flow regulation aspects of the multiple purpose Federal project, subject to the appropriation of funds by the General Assembly and the approval of the Governor.

Section 6. No contract may be entered into, nor any obligation incurred for any expenditure from the appropriation made by this Act without the approval in writing of the Governor."

Ill. Rev. Stat. 1971, ch. 19, par. 1111, provides:

The Department of Conservation is authorized to enter into and carry out agreements with any agency of the United States Government to insure the performance of the items of non-federal participation involved in the acquisition of land, development, operation and maintenance of improvements of the Lincoln Reservoir on the Embarras River for the purpose of making certain portions of it suitable for public outdoor recreation utilization, including the management of fisheries and wildlife, as set forth in House Document No. 298, First Session, 89th Congress of the United States of America."

The Department of Transportation is successor to the Department of Public Works and Buildings. Ill. Rev. Stat. 1971, ch. 19, sec. 126d, provides:

"In the execution of the powers herein granted and the duties vested in the Department of Transportation, it may, when so authorized and directed by the General Assembly, co-operate and enter into agreements with the proper agencies of the United States government, Municipal corporations of this State, political subdivisions and persons and associations, for the formulation of plans, and for the construction of any and all improvements for the control of destructive floods, and for the conservation, regulation, development and utilization of water, waterways, and water resources in the State of Illinois. Such agreements may assign to the several cooperating agencies particular projects or portions of projects for the purposes herein stated and may provide for joint understandings for said purposes and for contributions to execute any work agreed upon with any other of the above mentioned agencies in the State of Illinois to carry out the provisions of the Act."

The plaintiff in Counts I, II and III of the complaint is the Scattering Fork Drainage District, organized under provisions of the Illinois Drainage Code (Ill. Rev. Stat. 1971, ch. 42).

The plaintiff in Counts VII, VIII and IX is John Warfel who is the owner of 80 acres of land situated in Douglas County.

The plaintiff in Counts IV, V and VI is Bruce Williams whose status is alleged to be that of a citizen of the State of Illinois and a resident of Douglas County.

The various counts of the complaint may be summarized as follows:

Count I. Scattering Fork Drainage District alleges that execution of the agreements would result in the construction of the reservoir by the Corps of Engineers, that frequent artificial flooding would ensue causing damage to this plaintiff's drains and property, and further that the agreements cannot be entered into without consent of this plaintiff.

Count II. Scattering Fork Drainage District further alleges under Illinois law modification or destruction of this plaintiff's drains may not be accomplished by any entity other than plaintiff without consultation with plaintiff or an adjudication by a court that such other entity acts with legal authority in performing such modifications or destruction.

Count III. Scattering Fork Drainage District further claims that the agreements will require the State of Illinois to insulate the Federal Government from water damage claims resulting from construction of the project and limit the liability of the State of Illinois to the District since the ensuing damages will be compensable under Federal law which provides for less compensation than does the law of the State of Illinois.

Count IV. Plaintiff Bruce Williams claims that the Embarras River "* * * is unique economically, ecologically, aesthetically and recreationally and constitutes a valuable asset of the people of the State of Illinois, is irreplaceable, and constitutes part of the healthful environment of the people * * * including plaintiff." That plaintiff has "as a citizen of Illinois, a general property right to and interest in a healthful environment which includes preservation of the Embarras River as it presently exists generally and a particular right and interest because plaintiff hunts game and wildlife whose survival * * * is dependent entirely upon continued existence of the said river as it presently exists and because plaintiff will not be able to continue said activities of recreation if defendants act as they are planning to * * *."

Count V. Plaintiff Bruce Williams alleges that the property rights and interests (described in Count IV, supra) are within the protection of the Environmental Control Act of Illinois (Ill. Rev. Stat. 1971, ch. 111 1/2, sec. 1001 et seq.) and that defendants have failed to comply with the provisions of the Act and threaten future lack of compliance.

Count VI. Plaintiff Bruce Williams alleges that his property rights (described in the above summary of Count IV) cannot be destroyed, modified or damaged without either consultation with the plaintiff or a valid adjudication by a court of competent ...


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