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Frenchik v. Dean

OPINION FILED JANUARY 20, 1976.

FRED FRENCHIK ET AL., APPELLANTS,

v.

ANTHONY T. DEAN ET AL., APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Francis T. Delaney, Judge, presiding.

MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:

The plaintiffs, Fred Frenchik, Gaetano Terranova, and Seafood Council of Illinois, Inc., filed a complaint in the circuit court of Cook County against the Illinois Department of Conservation and its Director, Anthony T. Dean, to enjoin enforcement of the Department's Administrative Order No. 78. The order, which stated that it was issued pursuant to section 1.4 of the Illinois Fish Code of 1971 (Ill. Rev. Stat. 1973, ch. 56, par. 1.4), was adopted in May, 1975, to become effective on July 1. It imposed an annual harvest quota on commercial fishing for bloater chub and yellow perch, two species of fish which are the subject of commercial fishing in Lake Michigan.

The two individual plaintiffs are full-time commercial fishermen who for many years have fished the Illinois waters of Lake Michigan for chub. The Seafood Council is an association whose members include other commercial fishermen who fish those waters, as well as Chicago area wholesalers and dealers handling fish. While Administrative Order No. 78 sets a quota for both chub and perch, it is alleged that the major part of the catch of the individual plaintiffs is chub, and the complaint in this case relates to the chub quota alone.

The complaint was filed on June 25, 1975, five days before Administrative Order No. 78 was to become effective, and the plaintiffs moved for a preliminary injunction. The defendants voluntarily withheld implementation of the order until the motion was heard on July 22. After the hearing, the trial judge denied the plaintiffs' motion and they appealed to the Appellate Court for the First District. The appeal was brought here under Rule 302(b). This court stayed the effective date of the administrative order pending disposition of the appeal. The stay order was vacated following oral argument of the case on September 26.

Paragraphs 1 and 2 of Administrative Order No. 78 provide:

"Quota

1. An annual harvest quota of 30,000 pounds of bloater chubs and 431,000 pounds of yellow perch will be allowed.

Limited Entry

2. A maximum of three active full-time eligible commercial fishery crews will be permitted to fish as determined by a public lottery held by the Department of Conservation."

Succeeding paragraphs of the order establish various requirements, such as size, type and condition of equipment, past compliance with required harvest reports, and an undertaking to permit fishery biologists to obtain data as to the fish caught.

The lottery for the 1975-1976 fishing season was held shortly before the hearing on the plaintiffs' motion. The defendants divided the chub quota and the perch quota equally among the three entrants who were successful in the drawing. The president of the corporate plaintiff, himself a commercial fisherman, and one of the individual plaintiffs were two of the three winners. Each thereby became eligible for a license entitling him to catch 10,000 pounds of chub and about 143,000 pounds of perch during the period ending March 31, 1976, the date on which licenses for resident commercial fishermen will expire under section 5.8 of the Fish Code (Ill. Rev. Stat. 1973, ch. 56, par. 5.8).

The plaintiffs alleged in their complaint, and the defendants admit, that the 1973 catch of chub was approximately 400,000 pounds. This catch would have been shared in by the score or so of part or full-time fishermen who fish for chub in Lake Michigan. The plaintiffs assert that the total quota of 30,000 pounds would not support even a single commercial fishing operation, that there are no other species of fish available for commercial harvesting in sufficient numbers to support a profitable operation, and that the plaintiffs and other commercial fishermen will in consequence be forced to go out of business. Testimony given at the hearing on the motion for a preliminary injunction by the two individual plaintiffs and the president of the corporate plaintiff supported these allegations. The witnesses also testified that they would be unable to maintain a profitable operation on the basis of an individual share of 10,000 pounds of chub per year. The defendants do not dispute the hardship which the plaintiffs will suffer under the administrative order.

In its order denying plaintiff's motion for a preliminary injunction, the trial court made the following findings: "The chub in Lake Michigan are on the verge of extinction. The plaintiffs will suffer some economic injury as a result of the administrative order. Hardship will fall on the fishing resources of Illinois if the administrative order is preliminarily enjoined or temporarily restrained. Further, all present and future Lake Michigan commercial fishermen will suffer greatly in future years if the chub become extinct."

The genesis of Administrative Order No. 78 was explained in testimony given by defendant Dean and by two expert witnesses, a fisheries research biologist and a supervisor with the Wisconsin Department of Natural Resources. The testimony was that samplings of the chub population in Lake Michigan during the years 1960 through 1972 had disclosed a drastic and continuing decline in the number of chub. In the spring of 1974 State officials in charge of conservation for Illinois, Michigan, Wisconsin, and Indiana established a group called the Lake Michigan Technical Committee to review the chub situation and to prepare recommendations. The report of the committee, made in July, 1974, concluded that a continuation of ...


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