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07/31/87 the People Ex Rel. Michael v. Big Creek Drainage

July 31, 1987

DEPARTMENT OF CONSERVATION, PLAINTIFF-APPELLEE

v.

BIG CREEK DRAINAGE DISTRICT NO. 2, DEFENDANT-APPELLANT (DAVID DIEHL, INTERVENOR)



Before the court was the 1986 report of the United States Department of Interior annual report to Congress on damage or threatened damage to the 561 National Natural Landmarks. As to the Lower Cache River the report stated:

APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

THE PEOPLE ex rel. MICHAEL WITTE, Director, Illinois

512 N.E.2d 62, 159 Ill. App. 3d 576, 111 Ill. Dec. 158 1987.IL.1100

Appeal from the Circuit Court of Pulaski County; the Hon. George Oros, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE KARNS delivered the opinion of the court. KASSERMAN and WELCH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KARNS

The People, on the relation of the Director of the Illinois Department of Conservation, brought this suit against Big Creek Drainage District No. 2 to enjoin it from undertaking any activities, other than minor maintenance involving less than $100 in expenditures and two man-hours' labor, in the Cache River Basin in Pulaski County without notice to the Department of Conservation and hearing pursuant to section 4-19 of the Illinois Drainage Code. (Ill. Rev. Stat. 1985, ch. 42, par. 4-19.) The complaint prayed for both preliminary and permanent injunctive relief.

After hearing, the circuit court of Pulaski County entered a preliminary injunction enjoining the Drainage District from removing a low water structure across the Cache River known as the Button Land Swamp Dam located on the land of intervenor, David Diehl, pending final determination of the cause. The District has perfected this interlocutory appeal under Supreme Court Rule 307(a). 107 Ill. 2d 307(a).

The Lower Cache River Natural Area, often referred to as the Button Land Swamp, encompasses a narrow, nine-mile area on either side of the Cache River in Pulaski County. The Department of Conservation owns 657 acres in the swamp, a natural area which displays its original, historic character, including native plants and animals. The swamp, a wetland, is a National Natural Heritage Landmark. It contains many endangered species of plants and animals. The area was described by Dr. Harris, professor of geology at Southern Illinois University as an abandoned valley, once part of the Ohio River.

Numerous expert witnesses testified on behalf of plaintiff regarding the uniqueness of the swamp. Perhaps the most impressive plants found in the swamp are the large cypress and tupelo trees, one being over 500 years old, the largest in this country. The rarest animal found in the swamp is the Indiana bat, listed on the Federal Endangered Species list, as is the river otter, also found in the swamp.

The significance of the swamp can be summarized in the words of Professor Brandon, chairman of the department of zoology at Southern Illinois University:

"The Cache River Valley is significant zoogeographically because it contains the last Illinois remnants of a once extensive gulf coastal plain pleistocene swampland and harbors some of the northernmost austroriparian habitats and associated fauna. This southern flood plain habitat is of extremely limited extent in Illinois today, but what remains is still relatively high quality. Many Illinois species of amphibians and reptiles more characteristic of the Gulf coastal plain reach the northern limit of their ranges in extreme Southern Illinois; for example, mole salamander, dusk salamander, bird voiced tree frog, green tree frog, narrow mouthed toad, and mud snake."

The structure in question is a low water dam constructed of rock, approximately three feet in height. It was built in 1982 by the Citizens to Save the Cache, a not-for-profit corporation, on the property of David Diehl with permission of the Army Corps of Engineers, but not the formal permission of defendant Drainage District, although with the knowledge of at least one commissioner and defendant's acquiescence until 1986. The Corps of Engineers has taken the position that it has no jurisdiction to interfere in the removal of the structure because it does not affect the "waters of the United States." In 1986 Diehl granted the Department of ...


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