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Glisson v. City of Marion

October 21, 1999

JOSEPH M. GLISSON, APPELLEE, V. THE CITY OF MARION ET AL., APPELLANTS.


The opinion of the court was delivered by: Justice Bilandic

-Agenda 13-March 1999.

delivered the opinion of the court:

Plaintiff, Joseph M. Glisson, filed a complaint for declaratory and injunctive relief in the circuit court of Williamson County against defendants, the City of Marion, Illinois, and its mayor, Robert Butler. Plaintiff's complaint sought a declaration that defendants' construction of a dam and reservoir on Sugar Creek, located in Williamson and Johnson Counties of Illinois, violates the Illinois Endangered Species Protection Act (520 ILCS 10/1 et seq. (West 1998)). The complaint alleged, inter alia, that the project will destroy the habitat for two species that Illinois lists as threatened and endangered, resulting in the elimination of those species from the area in violation of the Act. Plaintiff also sought to enjoin defendants from constructing such a project on Sugar Creek. The circuit court granted defendants' motion to dismiss plaintiff's complaint for lack of standing. The appellate court reversed, holding that plaintiff has standing to pursue an action against defendants. 297 Ill. App. 3d 841. Defendants filed a petition for leave to appeal, which this court allowed. 177 Ill. 2d R. 315. We also allowed the Sierra Club, Defenders of Wildlife, and the Environmental Law and Policy Center of the Midwest leave to file a joint brief as amici curiae in support of plaintiff. 155 Ill. 2d R. 345. For the reasons that follow, we reverse the judgment of the appellate court and conclude that plaintiff lacks standing to bring this action against defendants.

BACKGROUND

The City of Marion has a water supply problem. In the past, the City has drawn most of its water from Marion City Lake. The City's requirement of 1.7 million gallons per day of water far exceeds Marion City Lake's capacity of 1.1 million gallons per day. Furthermore, the raw water from Marion City Lake is of poor quality, requiring substantial chemical treatment to render it suitable for human consumption. The City proposed to solve its shortage of water by constructing a dam and reservoir on Sugar Creek, located approximately seven miles southeast of Marion. The result would be a lake that is approximately 2,500 feet wide and 20,000 feet long, and a reservoir that is capable of supplying 8.9 million gallons of water per day.

Because Sugar Creek is a navigable water of the United States, the City was required to obtain a permit pursuant to section 404 of the Clean Water Act of 1977 (33 U.S.C. §1344 (1988)), which requires anyone seeking to discharge dredged or fill materials into the navigable waters of the United States to obtain a permit from the United States Army Corps of Engineers (Corps). In 1989, the City submitted an application to the Corps for a permit to construct the dam and reservoir on Sugar Creek.

The Corps prepared an environmental assessment of the project pursuant to the National Environmental Policy Act (NEPA) and its related regulations. 42 U.S.C. §4332(2)(C) (1994); 40 C.F.R. §1501.4 (1998). Copies of that assessment were provided to various federal and state agencies, including the Illinois Department of Conservation (Department). The Department recommended that the City enter into formal consultation with the Department pursuant to the provisions of the Illinois Endangered Species Protection Act (520 ILCS 10/11(b) (West 1998)). The City subsequently met with the Department to discuss the potential impact of the construction project on threatened and endangered species in the project area. The Department later concluded that the City had completed the consultation process and that "[n]o additional Discussions regarding endangered and threatened species" were required before the project could begin. The Corps concluded that the proposed project would create no significant environmental impact and, therefore, that no environmental impact statement was required. Thus, the Corps issued a permit to the City.

A group of plaintiffs filed suit in federal district court challenging the issuance of the permit. The district court determined that the permit was not properly issued because the Corps had not prepared an environmental impact statement pursuant to NEPA (42 U.S.C. §4332(2)(C) (1994)) before issuing the permit. Simmons v. United States Army Corps of Engineers, No. 91-4188-JLF (S.D. Ill. June 25, 1992) (Simmons I). The district court thus vacated the permit.

The Corps subsequently prepared both an environmental impact statement and a supplemental environmental impact statement, which concluded that the project would be "environmentally sustainable." The Corps then issued a second permit to the City. A group of plaintiffs challenged the issuance of the second permit. The district court ruled against the plaintiffs (Simmons v. United States Army Corps of Engineers, No. 96-4246-JPG (S.D. Ill. Dec. 18, 1996) (Simmons II)), and they appealed. The United States Court of Appeals for the Seventh Circuit held that the Corps improperly issued the second permit because the Corps failed to comply with its duty under NEPA to consider all reasonable alternatives in the environmental impact statement. Simmons v. United States Army Corps of Engineers, 120 F.3d 664 (7th Cir. 1997) (Simmons II). The Court of Appeals therefore reversed the district court in Simmons II and remanded the cause to the district court with directions to vacate the second permit issued by the Corps.

While the litigation challenging the second permit was pending before the Court of Appeals, plaintiff in this case filed a complaint for declaratory and injunctive relief. Plaintiff claimed that construction of the dam and reservoir violates sections 3 and 11(b) of the Illinois Endangered Species Protection Act (520 ILCS 10/3, 11(b) (West 1998)) because it will destroy the essential habitat of two species listed as threatened and endangered by Illinois, namely the least brook lamprey and the Indiana crayfish, and thereby will eliminate the species from the area. Plaintiff further claimed that he would suffer "intense harm" as a result of the dam and reservoir project because he is a naturalist who enjoys and uses Sugar Creek for "food gathering, recreation, spiritual, and educational activities," and because his lifestyle is "intertwined with and dependent on the natural world in general and Sugar Creek." Plaintiff requested that the circuit court (1) enter an order declaring that the dam and reservoir project violates the Illinois Endangered Species Protection Act, and (2) enjoin defendants from constructing the dam and reservoir.

Defendants filed a motion to dismiss plaintiff's complaint pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1998)), arguing, inter alia, that plaintiff lacks standing to sue under the Illinois Endangered Species Protection Act. In defendants' memorandum of law in support of the motion to dismiss, defendants argued that plaintiff does not allege any legally cognizable interest in the conservation, preservation or protection of the threatened or endangered species that would allegedly be harmed by the dam and reservoir project. According to defendants, plaintiff's interest is not in protecting the two species at issue, but rather, in opposing the construction of the dam and reservoir.

During a hearing on both the City's motion to dismiss and plaintiff's motion for a preliminary injunction, plaintiff responded to defendants' claim of lack of standing by contending that article XI, section 2, of the Illinois Constitution of 1970 provides plaintiff with standing to pursue an action against the City.

After considering the parties' arguments, the circuit court granted defendants' motion to dismiss. The circuit court therefore ordered plaintiff's complaint dismissed for plaintiff's lack of standing as a private citizen to pursue an action against defendants for violation of the Illinois Endangered Species Protection Act. The circuit court determined that plaintiff has no direct standing to enforce the Act as an individual because the Act is implemented by the Illinois Department of Natural Resources and enforced by the Attorney General. *fn1 The circuit court noted that since 1989, when the dam and reservoir project was first proposed, two governors and three attorney generals have served the state, and none chose to contest the City's project. The circuit court also determined that article XI, section 2, of the Illinois Constitution does not accord plaintiff standing to enforce the Act. The circuit court reasoned that, while article XI, section 2, apparently authorizes plaintiff to sue to preserve human health in appropriate circumstances and subject to legislative restriction, it does not grant plaintiff the right to file suit to protect endangered and threatened species. Rather, the protection of endangered and threatened species is delegated by statute to administrative agencies of the state and federal government.

Plaintiff appealed to the appellate court, which initially determined that the appeal was not moot because defendants were still pursuing a permit for the construction of the dam and reservoir. The appellate court also held that plaintiff has standing to pursue an action against defendants. 297 Ill. App. 3d 841. The appellate court determined that the test for whether a plaintiff has standing to maintain an action for a violation of a statute is whether the plaintiff has alleged an injury in fact to a legally cognizable interest. The court further stated that article XI, section 2, of the Illinois Constitution provides that each person has the right to a healthful environment, and that this provision creates a legally cognizable interest. The court then found that defendants failed to demonstrate that plaintiff's right to a healthful environment did not include the right to protect endangered or threatened species. Consequently, defendants failed to demonstrate that the destruction of the least brook lamprey and the Indiana crayfish was not an infringement of plaintiff's right to a healthful environment. Thus, defendants failed to prove that plaintiff suffered no injury to any legally cognizable interest, and as a result, defendants failed to prove that plaintiff lacked standing. The court concluded that plaintiff has standing, under article XI, section 2, of the Illinois Constitution, to sue defendants to seek declaratory and injunctive relief for violations of the Illinois Endangered Species Protection Act. The court, however, noted that it did not decide whether plaintiff's complaint states a cognizable cause of action. The court therefore reversed the judgment of the circuit court and remanded the case for further proceedings.

ANALYSIS

The issue before this court is whether plaintiff has standing to maintain an action against defendants for an alleged violation of the Illinois Endangered Species Protection Act (520 ILCS 10/1 et seq. (West 1998)).

As noted, this appeal arises from the circuit court's order granting defendants' section 2-619(a)(9) motion to dismiss plaintiff's complaint for lack of standing. Section 2-619(a)(9) permits involuntary dismissal where "the claim asserted *** is barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2-619(a)(9) (West 1998). The phrase "affirmative matter" refers to something in the nature of a defense that negates the cause of action completely or refutes crucial Conclusions of law or Conclusions of material fact contained in or inferred from the complaint. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 486 (1994). Lack of standing is an "affirmative matter" that is properly raised under section 2-619(a)(9). Cf. Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 494 (1988) (holding that lack of standing is an "affirmative" defense). An order granting this type of motion to dismiss is given de novo review on appeal. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993). Accordingly, we conduct de novo review of the circuit court's dismissal of plaintiff's complaint on the ground of lack of standing and consider whether dismissal was proper as a matter of law.

The doctrine of standing is designed to preclude persons who have no interest in a controversy from bringing suit. The doctrine assures that issues are raised only by those parties with a real interest in the outcome of the controversy. See People ex rel. Hartigan v. E&E Hauling, Inc., 153 Ill. 2d 473, 482 (1992). This court has set forth the general principle that standing requires some injury in fact to a legally cognizable interest in Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 492 (1988). The claimed injury may be actual or threatened, and it must be (1) distinct and palpable; (2) fairly traceable to the defendant's actions; and (3) substantially likely to be prevented or redressed by the grant of the requested relief. Greer, 122 Ill. 2d at 492-93. Moreover, in the context of an action for declaratory relief, there must be an actual controversy between adverse parties, and the party requesting the declaration must possess some personal claim, status or right that is capable of being affected by the grant of such relief. Greer, 122 Ill. 2d at 493.

In setting forth the requirements for standing, this court in Greer rejected federal principles on standing by declining to adopt the "zone- of-interests" test as an additional requirement for standing. Greer, 122 Ill. 2d at 491-92. The zone-of-interests test, which arises in cases where it is alleged that injury is due to the violation of a statute, requires that the interest asserted by the plaintiff lies within the zone of interests sought to be protected by the statute in question. Greer, 122 Ill. 2d at 489. In rejecting the zone-of-interests test, we criticized the test for confusing the issue of standing with the merits of the suit. Greer, 122 Ill. 2d at 492.

Defendants in this case argue that we should adopt the test for standing that was set forth in Lynch v. Devine, 45 Ill. App. 3d 743 (1977), as an additional requirement for standing. We reject the Lynch test for the same reason we rejected the zone-of-interests test in Greer. The Lynch test provides that, where the suit alleges injury due to violation of a statute, the doctrine of standing requires that the plaintiff be a member of the class designed to be protected by the statute, or one for whose benefit the statute was enacted, and to whom a duty of compliance is owed. Lynch, 45 Ill. App. 3d at 748. This test is similar to the zone-of-interests test. Both tests require a consideration of the underlying purposes of the statute at issue so as to determine whether the plaintiff was among its intended beneficiaries such that the statute was designed to protect the plaintiff's interest. Both the zone-of-interests test and the Lynch test improperly confuse standing with the merits of the underlying suit. For the reason set forth in Greer, we therefore refuse to expand the requirements for standing to include the additional requirements set forth in Lynch.

Having set forth the requirements for standing, we now consider them in light of plaintiff's complaint. We must determine whether plaintiff's claimed injury is an injury in fact to a legally cognizable interest. Plaintiff alleges that construction of the dam and reservoir on Sugar Creek violates the Illinois Endangered Species Protection Act by destroying the essential habitat of ...


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