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Weyland v. Manning

January 07, 2000

FRANCENE WEYLAND AND RUSSEL WEYLAND, PLAINTIFFS-APPELLANTS,
v.
BRENT MANNING, EX OFFICIO DIRECTOR OF THE DEPARTMENT OF NATURAL RESOURCES, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of McHenry County. No. 97--MR--138 Honorable Haskell M. Pitluck, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Bowman

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Plaintiffs, Russel and Francene Weyland, appeal from the trial court's order denying their request for declaratory judgment and dismissing their complaint against the Department of Natural Resources (Department). The sole issue presented is whether the trial court correctly found that the Department did not violate the requirements of section 220.600(a)(9) of the Illinois Administrative Code (Code) (1 Ill. Adm. Code §220.600(a)(9)(1994)). For the following reasons, we affirm the judgment of the trial court.

To facilitate our discussion of the facts and law applicable to this case, we begin with a brief overview of administrative rulemaking. Administrative rulemaking involves a three-step process. The first step, known as the first notice period, gives notice of the proposed rule and provides the public an opportunity to comment. Under section 5--40(b) of the Illinois Administrative Procedure Act (Act) (5 ILCS 100/5--40(b) (West 1994)), the public has 45 days from the date the notice is published in which to comment. If the agency proposing a rule receives a request for a public hearing during the first 14 days of the first notice period from 25 interested persons, the agency is required to hold a public hearing. 5 ILCS 100/5--40(b)(5) (West 1994).

At the end of the first notice period, the agency must submit certain information to the Joint Committee on Administrative Rules (JCAR) in a document called a second notice. 5 ILCS 100/5--40(c) (West 1994). JCAR is a bipartisan, bicameral legislative support services agency that reviews proposed and existing rules as well as agencies' compliance with the rulemaking process. 25 ILCS 130/1--5, 130/2--1 (West 1998).

The second notice period is also known as the legislative review period. R. Kane, Specific Rulemaking Procedures in Illinois, in Illinois Administrative Law §5.19 (Ill. Inst. For Cont. Legal Educ. 1991). During this time, JCAR reviews the second notice submitted by the agency. The Code sets forth certain requirements that a second notice must meet in order for JCAR to accept it. 1 Ill. Adm. Code §220.600 (1994). If the second notice is not satisfactory, JCAR may reject it. 1 Ill. Adm. Code §220.600(a) (1994). After reviewing the second notice materials, JCAR may submit questions to the agency concerning the rulemaking. 1 Ill. Adm. Code §220.700(b) (1994). Upon completion of its review, JCAR will file either a certification of no objection, a statement of recommendation that the agency pursue some further action, a statement of objection to the proposed rule, or a statement prohibiting the filing of a proposed rule. 1 Ill. Adm. Code §220.1000 (1994).

The third and final step is adoption of the rule. An agency may file a proposed rulemaking for adoption after (1) the second notice period has expired, (2) the agency has received a certification of no objection from JCAR, or (3) the agency has responded to a statement of objection from JCAR. 1 Ill. Adm. Code §220.1100 (1994).

Turning to the facts of this matter, the record reveals that plaintiffs opposed a rule promulgated by the Department pertaining to Griswold Lake, a 144-acre body of water located in McHenry County. In 1972, the Department's predecessor, the Illinois Department of Conservation, enacted a rule restricting the use of motors greater than 10 horsepower on Griswold Lake. This rule remained in effect until May 1995, when the Department removed the restriction. Soon after lifting the restriction, the Department received petitions from citizens asking that the restriction be reinstated. In July 1995, the Department proposed an emergency rule prohibiting the use of motors greater than 10 horsepower on Griswold Lake.

Plaintiffs own property on Griswold Lake. After the Department lifted the horsepower restriction, they purchased boating equipment with greater than 10-horsepower motors. Consequently, they opposed reinstating the rule because it would prohibit them from using their new equipment on Griswold Lake.

A public hearing on the proposed emergency rule took place on July 17, 1995. Plaintiff Francene Weyland attended the hearing and voiced her opposition to the proposed rule. In August 1995, the Department announced its intention to permanently prohibit the use of motors greater than 10 horsepower. The Department published notice of the proposed permanent rule on September 8, 1995.

By letter dated October 5, 1995, plaintiffs' attorney requested a public hearing on the proposed rule. The Department denied that request.

On October 23, 1995, plaintiffs, through their attorney, submitted a letter to the Department containing 23 comments, criticisms, and suggestions in opposition to both the proposed rule and the Department's denial of their request for a hearing. The gist of plaintiffs' letter was that the Department should limit the use of motors greater than 10 horsepower to certain times of the day and certain areas of the lake rather than impose a blanket ban on such motors.

JCAR recommended that the Department meet with interested Griswold Lake residents and try to reach an agreement on the horsepower restrictions. A meeting took place on November 16, 1995. Plaintiffs' attorney was among those present at the meeting. No agreement was reached.

JCAR received and accepted the Department's second notice on November 22, 1995. The Department adopted the rule prohibiting the use of motors greater than 10 horsepower on Griswold Lake, which went into effect ...


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