APPEAL from the Circuit Court of Saline County; the Hon.
MICHAEL J. HENSHAW, Judge, presiding.
JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:
JUSTICE WELCH delivered the opinion of the court:
Rehearing allowed and supplemental opinion filed January 27, 1982.
This case presents several fundamental issues in the law of administrative review in Illinois. It arises in the context of the denial of an application for a strip-mining permit under the Surface-Mined Land Conservation and Reclamation Act (Ill. Rev. Stat. 1979, ch. 96 1/2, par. 4501 et seq.) (the Act).
Sahara Coal Company operates several coal mines in Southern Illinois, including its 500-acre No. 6 mine in Saline County. Aware that the supply of coal in the existing mined area was running out, Sahara contemplated expanding its operations to a neighboring 189-acre tract, most of which is owned outright by Sahara. As required by the Act (Ill. Rev. Stat. 1979, ch. 96 1/2, pars. 4504, 4506), Sahara applied to the Illinois Department of Mines and Minerals on March 8, 1979, for a surface-mining permit. Additional information requested by the Department was supplied by Sahara.
The County Board of Saline County did not ask that a public hearing be held on Sahara's application. As the Act does not contemplate a hearing in the absence of the county board's request, none was held in this case. (Ill. Rev. Stat. 1979, ch. 96 1/2, par. 4506(f).) The Department did, however, solicit and accept expert opinions from its staff, from people associated with the Sahara proposal, and from independent sources. (Ill. Rev. Stat. 1979, ch. 96 1/2, par. 4506(g).) A thick volume of scientific data was amassed, and, acting upon this information, the Department denied Sahara's application in a letter of October 31, 1979, giving reasons for the decision. Ill. Rev. Stat. 1979, ch. 96 1/2, par. 4506(g).
Sahara brought suit for administrative review in the Circuit Court of Saline County. There, it was held that the Department's denial of the application was against the manifest weight of the evidence in the administrative record compiled by the Department. The court directed the immediate issuance of a strip-mining permit. An appeal has been taken to this court by the Department, which argues that: (1) the circuit court had no jurisdiction to review the denial of Sahara's application, (2) the court improperly limited the administrative record which was submitted to it by the Department, (3) the court should not have reversed the decision of the Department, and (4) the court should not have acted to grant the permit. As the arguments presented in the Department's brief proceed in a logical sequence, we will deal with them in that order.
Section 13a of the Act (Ill. Rev. Stat. 1979, ch. 96 1/2, par. 4516) proclaims that "[a]ll final administrative decisions of the Department hereunder shall be subject to judicial review pursuant to [the Administrative Review Act, Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.]" An administrative decision is defined in the Administrative Review Act as "any decision, order or determination of any administrative agency rendered in a particular case, which affects the legal rights, duties or privileges of parties and which terminates the proceedings before the administrative agency." Ill. Rev. Stat. 1979, ch. 110, par. 264.
The Department argues that "[a]t first blush, it would appear under these statutory provisions that [Sahara] has properly proceeded under the Administrative Review Act. However, an examination of the statutory language and the case law interpreting the statutory language reveals that the Administrative Review Act is not the appropriate remedy in this case. The reason for this is clear, the words in Section 1 of the Administrative Review Act, [Ill. Rev. Stat. 1979, ch. 110, par. 264] `which terminates the proceedings before the administrative agency,' contemplate an administrative process which presents an issue for hearing and disposition by an impartial trial agency."
Sahara responds by noting that if the General Assembly intended to preclude judicial review in cases such as this, "such intent must be made specifically manifest, and persuasive reason must exist to believe such was the legislative purpose. * * * Only upon a showing of clear and convincing evidence of contrary legislative intent should the courts> restrict access to judicial review." (Klein v. Fair Employment Practices Com. (1975), 31 Ill. App.3d 473, 478, 334 N.E.2d 370, 374.) Sahara suggests that the provisions of the Administrative Review Act show that a full hearing is not necessary for judicial review.
For example, according to Sahara, section 9(a) of the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 272(a)), requires the complaint in administrative review to "specify whether the transcript of evidence, if any, or what portion thereof, shall be filed by the agency as part of the record." Under section 9(b) (Ill. Rev. Stat. 1979, ch. 110, par. 272(b)), the agency must file an original or copy of "the entire record of proceedings under review, including such evidence as may have been heard by it * * *." And, sections 12(f) and 12(g) (Ill. Rev. Stat. 1979, ch. 110, pars. 275(1)(f), 275(1)(g)) confer certain powers on the circuit court "where a hearing has been held by the agency."
The language of the Surface-Mined Land Conservation and Reclamation Act and the Administrative Review Act do not support the Department's claim that a hearing is a prerequisite to judicial review of its decisions on strip-mining applications. Nor do the cases cited by the Department as authority for that proposition provide such support.
In both People ex rel. Vestuto v. O'Connor (1953), 351 Ill. App. 539, 115 N.E.2d 810, and Roosevelt-Wabash Currency Exchange, Inc. v. Fornelli (1977), 49 Ill. App.3d 896, 364 N.E.2d 449, a "proceeding" which may be the subject of judicial review was described as "an administrative process which presents an issue for hearing and disposition by an impartial third agency." In Vestuto, a discharged police officer brought a mandamus action to compel his reinstatement. The court held that the suit was not barred by the officer's failure to proceed under the Administrative Review Act because the police commissioner's peremptory order of dismissal was not a "proceeding" which could be reviewed under that act.
In Roosevelt-Wabash, it was held that a neighboring business did not have standing to challenge the issuance of a community currency exchange license to a competitor. The court stated in dicta that even if the neighboring currency exchange had that standing, the act of granting a currency exchange license was not a "proceeding" which could be the subject of judicial review. Under the Community Currency Exchange Act (Ill. Rev. Stat. 1979, ch. 16 1/2, par. 30 et seq.), the Director of the Illinois Department of Financial Institutions is not required to prepare and keep on file a written order pertaining to his initial action on an application for a license. (Ill. Rev. Stat. 1979, ch. 16 1/2, par. 34.1.) If an applicant objects to the denial of his application, or if a license is revoked, then a hearing must be held and findings must be made. (Ill. Rev. Stat. 1979, ch. 16 1/2, pars. 40, 45.) These latter "proceedings" may then be scrutinized under the Administrative Review Act. Ill. Rev. Stat. 1979, ch. 16 1/2, par. 52.1.
In contrast, the Surface-Mined Land Conservation and Reclamation Act requires that the Department's approval of an application "be based upon the advice of technically trained foresters, agronomists, economists, engineers, planners and other relevant experts having experience in reclaiming surface-mined lands * * *." When no hearing is requested, the Department "shall consider written testimony from county boards" and "shall immediately serve copies of such written testimony on the applicant and give the applicant a reasonable opportunity to respond by written testimony." If the applicant's proposals are rejected, the Department "shall issue a statement of its reasons for its determination and shall make such statement public." Ill. Rev. Stat. 1979, ch. 96 1/2, par. 4506(g).
• 1 It is readily seen that, while the Community Currency Exchange Act permits an applicant to act as an advocate only after his initial application is denied, or if his license is revoked, the Surface-Mined Land Conservation and Reclamation Act allows the applicant to assume that role from the beginning. Moreover, the Director of the Department of Mines and Minerals must compile a record to support his decision on the application. No such record need be maintained by the Department of Financial Institutions, and no order to confirm its decision need be made, until the initial application is denied or a license is revoked. The presence of the adversary process and an administrative record at all stages of the strip-mining permit application convinces us that this is an administrative process which "presents an issue for hearing," even though neither the applicant nor witnesses may appear before the Department. We hold that the decision of the Department of Mines and Minerals to grant or deny a strip-mining permit under the Surface-Mined Land Conservation and Reclamation Act is reviewable under the Administrative Review Act whether or not any type of "hearing" is ever held.
As its second assignment of error, the Department asserts that the circuit court improperly limited the record before it. More than six months after the suit was brought in the Circuit Court of Saline County and approximately six months after it had filed an "Administrative Record," the Department moved to supplement that record. Some of the material sought to be inserted consisted of memoranda made by Department personnel ...