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Sierra Club v. Kenney

OPINION FILED DECEMBER 18, 1981.

SIERRA CLUB ET AL., APPELLEES,

v.

DAVID KENNEY ET AL., APPELLANTS.



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Jersey County, the Hon. Howard Lee White, Judge, presiding.

JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:

The local chapter of the Sierra Club brought suit in the circuit court of Jersey County to enjoin the Illinois Department of Conservation from logging or inviting bids for logging a portion of Pere Marquette State Park. The circuit court refused to issue the injunction but held up the Department's proposal for logging pending a review of the plans of the successful bidder. A divided appellate court reversed, holding that there was no statutory authority for the proposal; it enjoined the cutting of trees in State parks. (90 Ill. App.3d 230.) This court granted leave to appeal under Rule 315 (73 Ill.2d R. 315). The appellate court's analysis was correct, but the result it reached must be modified.

Pere Marquette State Park was established in 1932 near the confluence of the Illinois and Mississippi rivers. At the time the action was started, the park's 7,743 acres made it the largest State park in Illinois. The area the Department proposed logging is in the Camden Hollow section of the park. The main recreational feature of that area is hiking and equestrian trails.

Camden Hollow, like much of the park, has been subject to many wildfires in the past. In 1974, an accidental man-made fire partially burned 345 acres of Camden Hollow. The terrain is rugged, and the fire damage was heavier higher up on the ridges. No immediate steps were taken in the burn area, and the natural process of regeneration began. The burn area, like much of the park, consists of oak and hickory trees, with a scattering of other species like maple, ash and elm. By the time the suit was heard, a rich new growth of young trees and other vegetation had joined the trees that survived the fire to fill the burn area.

In 1978, following a change in Department of Conservation policy, the Division of Forestry proposed that, for the first time in any Illinois State park, a commercial timber harvest and sale be carried out in the burn area. The Master Management Plan that was developed for Pere Marquette State Park at the same time labels the burn area as part of the Natural Resource Zone of the park. The plan calls for developing that zone by rehabilitating areas damaged by fire (with emphasis on the 1974 burn area), by grazing and by intensive logging.

The logging proposal had four listed purposes: salvage (of dead or injured trees to permit the use of wood fiber in the form of lumber or firewood that might otherwise go to waste), sanitation (to remove fire-damaged trees that are more susceptible to insects or disease), rehabilitation (to create conditions favorable for the growth and regeneration of the oak-hickory climax forest) and wildlife habitat/improvement (to create small openings and cover for game and to increase the eventual output from the remaining trees).

The proposal noted that delay in cutting would result in a substantial loss of wood fiber and the inherent revenue. It postulated that giving the remaining trees more light would increase their growth rate, that increased growth could be obtained through selective harvesting, and that this was desirable for healthy forest development.

The proposed logging was to be carried out by a commercial operator, who would bid for the right to remove trees marked in advance by the Department. In a marking guide drawn up to facilitate the selection of trees to be cut down, the listed objectives of the Department were salvage, sanitation and rehabilitation. The marking guide stated that wood-fiber production was not a management objective on the site. Trees that were injured by fire, insects or disease, or were susceptible to such injury, were to be marked for logging, provided they were merchantable. But, unsalvageable trees were to be left standing because of the potential value to wildlife. The Department proposal foresaw further cutting of timber that had no commercial value by an organization like the Youth Conservation Corps.

Initially marked for cutting were 1,973 trees, or 1% of the trees in the burn area. Of these, 18% were dead; another 60% were live trees to be removed because of damage from the 1974 fire. The remaining 22% were to be logged because they were "economically mature," although three-fourths of these had also suffered slight damage in the fire.

Three hundred forty-eight dead trees were marked for logging in the burn area; 862 dead trees were left unmarked because they were unmerchantable. Of the 1,625 live trees marked, only 1.7% would die each year. If not logged under the Department's plan, though, only 7.1% of those living trees could be salvaged after they died. Ninety additional dead standard trees were later marked for cutting as well.

On August 28, 1978, the Division of Forestry announced a timber sale of the 2,063 trees. The sale was by sealed bid only; specifications for the maintenance of logging and park roads, for firebreaks and for erosion control were mandated. The bids were scheduled to be accepted on October 18, 1978, but the Sierra Club brought this suit before the bid date.

A hearing was held in which photographs of the area were presented by both sides. The trial judge also personally toured the area to be logged. At the hearing, David Kenney, the Director of the Department of Conservation, testified that the purpose of the operation was salvage, sanitation, the safety of those using the park, and the improvement of the park by hastening the regenerative process. The logging was to be handled by commercial sale because the Department did not have the manpower to do the job itself. The successful bidder would pay the Department for the right to log the park and then could sell the wood to recover costs. Kenney was unaware of plans to log any other State parks.

Allen S. Mickleson, the State Forester, and as such in charge of the Division of Forestry, testified that the proposed logging would speed up the natural processes of rehabilitating the burn area. Like Director Kenney he identified the purposes of the logging as salvage, sanitation, rehabilitation, and safety. In his opinion as a forester, the Department's plan was conservative forestry.

Mickleson said that 30 acres of the burn area were excluded from the sale because of the steep terrain or the lack of serious fire damage. The burn area, in his opinion, had been devastated.

Protection for the delicate ecosystem of the burn area was built into the contract for the logging. Water bars were required on skid trails, skidding of logs could only be uphill, and rubbertired, not tracked, vehicles were required. Mickleson admitted that some of the smaller growth in the area would have to be taken out to accommodate equipment and to build staging yards to store the logs before they were driven out of the park. ...


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