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Illinois Dunesland Preservation Society v. Illinois Dep't of Natural Resources

November 25, 2008

ILLINOIS DUNESLAND PRESERVATION SOCIETY, AN ILLINOIS CORPORATION PLAINTIFF,
v.
THE ILLINOIS DEPARTMENT OF NATURAL RESOURCES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

In May of 2006, the Illinois Dunesland Preservation Society ("Dunesland") filed a complaint against the Illinois Department of Natural Resources ("IDNR") and a number of individuals, claiming that they violated Dunesland's First and Fourteenth Amendment rights by refusing to display, in display racks located in certain areas of Illinois Beach State Park (the "Park"), an informational pamphlet Dunesland prepared on how to avoid asbestos exposure at the Park. Plaintiff's four-count complaint seeks a declaratory judgment (Count I); injunctive relief (Counts II and III);*fn1 and monetary damages pursuant to 42 U.S.C. § 1983 (Count IV).

In August of 2006, Defendants moved to dismiss plaintiff's complaint under Fed. R. Civ. P. 12(b)(6) on the grounds that 1) plaintiff has no First Amendment right to require the IDNR to display Dunesland's pamphlet in the Park's display racks; 2) both IDNR and its agents are immune from § 1983 liability under the doctrine of sovereign immunity; and 3)plaintiff failed to allege that certain of the individual defendants were sufficiently involved in the alleged constitutional violations to support a § 1983 action. I granted defendants' motion in part, dismissing IDNR from the case and dismissing plaintiff's claims for damages and declaratory relief against the individual defendants in their official capacities. I denied the remainder of defendants' 12(b)(6) motion.

Before me now are cross-motions for summary judgment. Plaintiff seeks partial summary judgment on counts II-IV of its complaint, while defendants seek summary judgment on all counts. For the reasons explained below, plaintiff's motion is denied and defendants' motion is granted.

I.

Illinois Beach State Park is the most visited state park in Illinois. It is located in Lake County, bordering Lake Michigan on property owned by the State of Illinois. IDNR is the state agency responsible for operating the Park. At several locations throughout the Park, including locations referred to as the Park Office, the Gate House, the Interpretive Center (or Nature Center), the Marina, and the Lodge, IDNR makes available to visitors a variety of informational materials, which are displayed in and around racks or stands designed for this purpose.*fn2 These materials typically include visitor guides and maps; pamphlets about other Illinois State Parks; brochures describing local attractions and recreational activities; and health and safety information.

At times relevant to this action, Robert Grosso, who was the Park's Site Superintendent, and Julie Brewer, who worked in the Park Office, were generally responsible for populating the display racks with information they deemed of interest to Park visitors. Some of the information they selected came in the mail from the Illinois Department of Public Health, the Lake County Health Department, and the United States Department of Agriculture. Brewer obtained other literature by visiting sources outside the Park, such as the Lake County Convention Bureau.

IDNR did not have established policies or guidelines for selecting materials to include in Park displays. Grosso and Brewer used their discretion and common sense to select information they thought was appropriate and useful to Park visitors. Brewer testified that Grosso had the "ultimate decision" about which materials were displayed. She further stated that material "about the state park and about the general areas, special events" was generally acceptable, but not "garage sales, personal type things." In August of 2004, the Park displays contained, for example, information relating to: a local amusement park; a nearby shopping center; a Lake County recreation guide; train schedules to Chicago; an Illinois Department of Health pamphlet on E-coli; a Lake County Health Department flyer on Nile Virus; and a United States Department of Agriculture Pest Alert on the Emerald Ash Borer, among other materials.

Dunesland is an Illinois non-profit organization, incorporated in 1950, whose early members were instrumental in establishing the Park. Dunesland has supported and contributed to the Park since its inception, for example by developing educational programs for use at the Park's Interpretive Center and by producing texts describing the flora and fauna found in the Park. Over the years, IDNR has generally included these texts, as well as Dunesland's newsletters and membership applications among the informational materials on display for visitors.

In March of 2000, the Illinois Department of Public Health, the Illinois Environmental Protection Agency, and IDNR jointly developed a fact sheet to communicate information about the presence of asbestos containing material at the Park. From 2000 through some time before August 2004, this fact sheet was displayed at the locations identified in the complaint and at kiosks throughout the Park. At some point, however, the supply of these asbestos fact sheets ran out, and they were no longer displayed at the Park by August of 2004.

Dunesland created its own pamphlet (or flyer) with information on how to avoid asbestos exposure at the Park. On August 31, 2004, Dunesland sent a request to Robert Grosso that "IDNR display the public service flyers relating to asbestos and protecting the health and safety of the public." Specifically, Dunesland sought "to have IDNR display these handout flyers in the same areas where other informational and cautionary flyers and brochures are displayed." Grosso sent a fax to defendants Ascardis, Hickmann, Mayville, and Furr for guidance on Dunesland's request.

Hickmann, Furr, Yonkauski, and Mayville considered Dunesland's request, then instructed Grosso to inform Dunesland that IDNR would not display Dunesland's asbestos pamphlet in the requested display areas. Dunesland did not seek to distribute its flyer within the Park by any means other than inclusion in the display racks. No special permit or license is required to hand out pamphlets to Park visitors.

II.

Summary judgment is proper when the record reflects that there is no genuine dispute as to any material fact, and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp., v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of identifying undisputed facts in the record that it believes demonstrate the absence of a genuine dispute. Scaife v. Cook County, 446 F.3d 735, 739 (7th Cir. 2006). If the movant meets this burden, the non-moving party must then go beyond the pleadings and "set forth ...


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