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Helping Others Maintain Environmental Standards v. A.J. Bos

December 22, 2010

HELPING OTHERS MAINTAIN ENVIRONMENTAL STANDARDS,
LEROY BEHRENS, LAUREL BEHRENS, MARY JO BURKE, JUANITA CROPPER,
JEFFREY GRAVES, DEAN B. HICKS, KATHLEEN M. HICKS, STEVE HOLESINGER, WILL LIBERTON, LORI RUNKLE, AND RICHARD RUNKLE, PLAINTIFFS-APPELLEES,
v.
A.J. BOS, TRADITIONS INVESTMENTS, LLC, AND THE DEPARTMENT OF AGRICULTURE,
DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Jo Daviess County. No. 08--CH--42 Honorable Kevin J. Ward, Judge, Presiding.

The opinion of the court was delivered by: Justice Bowman

HELPING OTHERS MAINTAIN ENVIRONMENTAL STANDARDS, LEROY BEHRENS, LAUREL BEHRENS, MARY JO BURKE, JUANITA CROPPER, JEFFREY GRAVES, DEAN B. HICKS, KATHLEEN M. HICKS, STEVE HOLESINGER, WILL LIBERTON, LORI RUNKLE, and RICHARD RUNKLE, Plaintiffs-Appellants, v. A.J. BOS, TRADITIONS INVESTMENTS, LLC, and THE DEPARTMENT OF AGRICULTURE, Defendants-Appellees.

Appeal from the Circuit Court of Jo Daviess County. No. 08--CH--42 Honorable Kevin J. Ward, Judge, Presiding.

JUSTICE BOWMAN delivered the opinion of the court: Plaintiffs, Helping Others Maintain Environmental Standards (HOMES), Leroy Behrens, Laurel Behrens, Mary Jo Burke, Juanita Cropper, Jeffrey Graves, Dean B. Hicks, Kathleen M. Hicks, Steve Holesinger, Will Liberton, Lori Runkle, and Richard Runkle, sought to halt the construction of a "megadairy" by defendants A.J. Bos and Traditions Investments, LLC (collectively Bos). Plaintiff HOMES is a not-for-profit corporation that was organized to oppose the livestock facility's construction. The remaining plaintiffs are individuals living in the general vicinity of the proposed dairy in Nora, Illinois. After Bos obtained approval from defendant the Department of Agriculture (Department) to begin construction, plaintiffs brought suit against Bos and the Department. The Department moved to dismiss the counts against it, and its motion was granted. Plaintiffs obtained a preliminary injunction against Bos, effectively halting construction of the livestock facility, but they were subsequently denied a permanent injunction. In appeal No. 2--10--0162, plaintiffs argue that:

(1) they have standing to seek judicial review of the Department's approval to begin construction, (2) the trial court erred in a number of its evidentiary rulings, and (3) the trial court's denial of a permanent injunction is against the manifest weight of the evidence. We allowed the Illinois chapter of the Sierra Club, the Illinois Council of Trout Unlimited, and the Prairie Rivers Network to file a joint amicus curiae brief in support of plaintiffs. In appeal No. 2--09--1283, which has been consolidated with plaintiffs' appeal, Bos argues that the trial court erred in denying his motion to dissolve the preliminary injunction and that he is entitled to damages. We affirm the trial court's judgment in all respects.

I. BACKGROUND

A. Bos Obtains Departmental Approval

On October 31, 2007, Bos filed with the Department notices of intent to construct two livestock management facilities. The proposed dairies were named "Tradition North" and "Tradition South" and were located in Nora Township, Jo Daviess County. Each dairy would have 6,850 "animal units" in the form of dairy cows and calves.*fn1 The Tradition South dairy's plans, as amended, proposed to use three livestock waste holding ponds, one with dimensions of 300 by 855 by 20 feet; the second 760 by 850 by 20 feet; and the third 400 by 400 by 20 feet. Bos sought the Department's approval of the dairies pursuant to the Livestock Management Facilities Act (Livestock Act) (510 ILCS 77/1 et seq. (West 2008)).

In accordance with the Livestock Act, the Department sent notice of the intent to construct to the Jo Daviess County Board (Board), and the Board requested that the Department hold an informational meeting on the proposed construction. See 510 ILCS 77/12(a) (West 2008); 8 Ill. Adm. Code §900.403 (Conway Greene CD-ROM June 2002). At the meeting, the Department was required to receive evidence on the following eight siting criteria: whether (1) registration and livestock waste management plan certification requirements were met by the notice of intent to construct; (2) the design, location, or proposed operation would protect the environment by being consistent with the Livestock Act; (3) the location minimized incompatibility with the area's character by being zoned for agriculture or complying with the Livestock Act's setback requirements; (4) if the facility was in a 100-year flood plain or an environmentally sensitive area (defined as a karst area or with aquifer material within five feet of the bottom of the waste facility), the proposed construction standards were consistent with protecting the area's safety; (5) the owner or operator submitted plans to minimize the likelihood of environmental damage from spills, runoff, and leaching; (6) odor control plans were reasonable and incorporated odor reduction technologies; (7) traffic patterns minimized the effect on existing traffic flow; and (8) construction of the facility was consistent with community growth, tourism, recreation, or economic development through compliance with applicable zoning and setback requirements. 510 ILCS 77/12(d) (West 2008).

The informational meeting took place on January 10, 2008, and the public was allowed to ask questions and make comments. See 510 ILCS 77/12(a) (West 2008). On January 31, 2008, the Jo Daviess County Development and Planning Committee voted to recommend to the Board that the proposed dairies did not meet all eight siting criteria. On February 11, 2008, the Board found that five of the eight siting criteria had not been met and voted 11 to 5 to recommend that the Department not approve the dairies. See 510 ILCS 77/12(b) (West 2008) (the county board shall submit an advisory, non-binding recommendation to the Department as to whether the proposed facility meets the eight siting criteria). However, on May 30, 2008, the Department ruled that it was "more likely than not" that the Livestock Act's provisions had been met regarding the Tradition South facility, and it approved its construction. See 510 ILCS 77/12.1 (West 2008) (if the Department determines that it is "more likely than not" that the Livestock Act's provisions have been met, construction of the facility may proceed). Bos was subject to inspection by the Department before, during, and after construction. 510 ILCS 77/13(g) (West 2008); 8 Ill. Adm. Code §900.505 (Conway Greene CDROM June 2002). Bos did not subsequently pursue approval of the Tradition North facility.

One of the main controversies surrounding the approval of the Tradition South dairy was whether it was in a "karst area" under the Livestock Act. The Livestock Act defines "karst area" as "an area with a land surface containing sinkholes, large springs, disrupted land drainage, and underground drainage systems associated with karstified carbonate bedrock and caves or a land surface without those features but containing a karstified carbonate bedrock unit generally overlain by less than 60 feet of unconsolidated materials." 510 ILCS 77/10.24 (West 2008). "Karstified carbonate bedrock" is defined as "a carbonate bedrock unit (limestone or dolomite) that has a pronounced conduit or secondary porosity due to dissolution of the rock along joints, fractures, or bedding plains." 510 ILCS 77/10.26 (West 2008). Under administrative regulations, if the "proposed livestock waste handling facility is to be located within an area designated as 'Sink hole areas' on 'Karst Terrains and Carbonate Rocks of Illinois', IDNR-ISGS Illinois Map 8"*fn2 (Map 8), or if soil samples from within 20 feet of the livestock waste handling facility boundaries indicate that the waste handling facility is in a "karst area," additional inspections and tests are required (35 Ill. Adm. Code §§506.302(b), (g) (Conway Greene CD-ROM June 2002)). If a livestock waste handling facility is in a karst area, the waste facility must be designed to prevent seepage of waste into groundwater (510 ILCS 77/13(b)(2) (West 2008); 35 Ill. Adm. Code §506.312(a) (Conway Greene CD-ROM June 2002)) and is to be constructed using a rigid material such as concrete or steel (35 Ill. Adm. Code §506.312(b), amended at 25 Ill. Reg. 14883, eff. November 15, 2001. However, the facility's owner or operator may receive the Department's permission to "modify or exceed these standards in order to meet site specific objectives." 35 Ill. Admin. Code §506.312(c), amended at 25 Ill. Reg. 14883, eff. November 15, 2001. In such a situation, the owner or operator must demonstrate that the modification is at least as protective of the groundwater, surface water, and structural integrity of the waste facility as are the regulation's requirements. 35 Ill. Adm. Code §506.312(c), amended at 25 Ill. Reg. 14883, eff. November 15, 2001. No livestock waste facility may be constructed within 400 feet of a natural depression in a karst area. 510 ILCS 77/13(b)(2) (West 2008); 35 Ill. Adm. Code §506.302(g)(1) (Conway Greene CD-ROM June 2002).

B. Plaintiffs File Suit

On June 3, 2008, plaintiffs filed a petition with the Department, seeking reconsideration or a stay of the construction approval. The Department responded that plaintiffs did not have standing to challenge its administrative decision.

Also on June 3, 2008, plaintiffs filed a five-count complaint against defendants in the trial court. Count I was directed against both defendants. It alleged individual plaintiffs' concerns regarding ground water contamination and air pollution from the facilities. It alleged that the bedrock underlying and surrounding the dairy sites was made up of "Galena Group Carbonate Rock" with karst features, which constituted a karst aquifer, meaning that it was highly susceptible to groundwater contamination by the seepage of animal waste. Count I alleged that Bos's proposed waste handling ponds were not going to be constructed using a rigid material such as concrete or steel, but rather compacted soil, and would therefore leak. It further alleged that the Livestock Act's requirements for minimum setback distances from residences had not been met. See 510 ILCS 77/35(c) (West 2008). Count I sought a declaratory judgment that the livestock facilities were in violation of the Livestock Act; a declaratory judgment that the Department's decision that Tradition South complied with the Livestock Act was "unlawful, illegal and void"; and preliminary and permanent injunctions enjoining Bos from constructing and operating the livestock facilities.

The remaining counts were directed against Bos. Count II alleged public nuisance based on noise, offensive odors, groundwater contamination, increased vehicle traffic, interference and annoyance impairing the use of plaintiffs' property, inconvenience, injury to health, diminution in property values, and damage to the area's reputation. Count II further alleged that the dairies would violate plaintiffs' state constitutional right to a healthful environment and would constitute public nuisances pursuant to statute. Count II sought an order temporarily restraining Bos from proceeding with construction of the facilities; preliminary and permanent injunctions enjoining Bos from constructing and operating the facilities; and a declaration that the operation was a nuisance.

Count III alleged common-law public nuisance and count IV alleged common-law private nuisance. Both sought the same relief as count II. Count V alleged common-law continuing trespass and contained many of the same allegations as the nuisance counts. It also requested the same relief, except that it requested a declaration that the operation was a continuing trespass.

Further on June 3, 2008, the trial court denied plaintiffs' emergency motion for a temporary restraining order. On June 26, 2008, plaintiffs filed a motion requesting certiorari review of the Department's administrative decision allowing construction to begin on Tradition South and requesting a stay of construction.

On October 20, 2008, after conducting evidentiary hearings, the trial court granted plaintiffs a preliminary injunction against Bos. It found that all of the witnesses testified credibly at the hearing but that plaintiffs' witnesses' testimony was more directly related to the issue of whether a nuisance or trespass was likely to stem from the operation of the Tradition South dairy. In contrast, Bos's witnesses were interested parties because they were employed by Bos for the project, and their testimony was directed more toward compliance with the Livestock Act than the likelihood of nuisance or trespass from the facility's operation. The trial court found that: plaintiffs had made a prima facie showing of a fair question about the existence of their claimed right not to be subject to nuisance or trespass by the proposed dairy; groundwater contamination from the proposed facility would constitute a substantial future harm; the facility presented a high probability of a public and private nuisance by creating an environment injurious to the health and welfare of surrounding citizens and the public at large; plaintiffs therefore had no adequate remedy at law and irreparable harm was likely to result without a preliminary injunction; the circumstances led to a reasonable belief that plaintiffs would be entitled to the relief sought; and the balance of hardships between Bos's right to lawful use of his property and the health and safety of plaintiffs and the public favored the issuance of a preliminary injunction. Bos was enjoined from operating a "concentrated proposed livestock management facility" as defined by statute, stabling more then 199 cows, and using any aboveground or in-ground waste storage structures or runoff holding ponds for livestock waste.

On December 3, 2008, plaintiffs added count VI to their complaint. Count VI was directed at both defendants and sought declaratory judgments that the Tradition South dairy: was in violation of the Environmental Protection Act (415 ILCS 5/1 et seq. (West 2008)), the Illinois Groundwater Protection Act (415 ILCS 55/1 et seq. (West 2008)), and the Livestock Act and would constitute a public nuisance. Plaintiffs further sought a declaration that the Department's decision allowing construction of the facility was "unlawful, illegal and void." Plaintiffs also requested preliminary and permanent injunctions enjoining Bos from constructing and operating the facilities.

On December 17, 2008, the Department filed a combined motion under section 2--619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2--619.1 (West 2008)) to dismiss plaintiffs' claims against it. The Department attacked the format of the complaint under section 2--615 of the Code (735 ILCS 5/2--615 (West 2008)), arguing that it alleged multiple causes of action in a single count. The Department alternatively argued that the complaint should be dismissed under section 2--619 of the Code (735 ILCS 5/2--619 (West 2008)) because plaintiffs lacked standing to bring their claims against it. The Department referred to its contemporaneously filed response to plaintiffs' motion for writ of certiorari. In the response, the Department argued that plaintiffs' request for certiorari should be denied because it was brought as a motion rather than as a petition. The Department further argued that plaintiffs lacked standing to challenge the Department's decision because they were not parties to the administrative proceeding. Bos later joined in the Department's motion to dismiss.

On January 15, 2009, the trial court denied plaintiffs' motion for a writ of certiorari and granted the Department's section 2--619 motion to dismiss the claims against it, contained in counts I and VI. As to Bos, the trial court also granted the section 2--619 motion to dismiss counts I and VI, except it denied the motion with respect to plaintiffs' request for a declaratory judgment that the dairy would constitute a public nuisance. The trial court further granted the section 2--615 motion to dismiss the complaint but provided plaintiffs leave to file an amended complaint.

Plaintiffs filed a three-count, first amended complaint on February 3, 2009. The complaint did not name the Department as a defendant or list any claims against it. Count I contained largely the same allegations as the original count, and it sought a declaratory judgment that the proposed livestock facilities would constitute a public nuisance. Count II sought a declaratory judgment that the proposed livestock facility would constitute a private nuisance, and count III sought a declaratory judgment that the facility would constitute a continuing trespass. All three counts sought preliminary and permanent injunctions enjoining Bos from constructing and operating the facility.

Later in February 2009, Bos sought removal of the case to federal court on the basis that there was a diversity in citizenship because the Department was no longer a party to the action. The federal court denied removal on the ground that the counts against the Department were involuntarily dismissed.

On May 13, 2009, Bos moved to dismiss the first amended complaint. On June 2, 2009, the trial court orally granted the motion in part, and it gave plaintiffs leave to file a second amended complaint. Plaintiffs filed that complaint on June 11, 2009. Plaintiffs' second amended complaint renamed the Department as a defendant and added Traditions Investments, LLC, as a defendant. Count I sought a declaratory judgment that the proposed facility (Tradition South) would constitute a public nuisance; count II sought a declaratory judgment that it would constitute a private nuisance; count III sought a declaratory judgment that it would constitute a continuing trespass; and count IV sought preliminary and permanent injunctions enjoining Bos from constructing and operating the dairy. Counts V and VI were listed as former counts I and VI of plaintiffs' original complaint. The counts stated that they had been dismissed on January 15, 2009, and count VI specifically stated that it was being repled for purposes of appeal.

On October 16, 2009, Bos filed a motion to dissolve the preliminary injunction, arguing that plaintiffs' experts' claims were unsupported by fact and rose only to the level of speculation and conjecture. The trial court denied the motion on November 10, 2009.

C. Trial

A trial on the permanent injunction took place from November 23, 2009, to December 10, 2009. We summarize the voluminous trial testimony in an unpublished portion of this opinion.

D. Trial Court's Ruling

The trial court issued a written judgment on December 15, 2009, stating as follows. In order to obtain a permanent injunction, plaintiffs had to prove by a preponderance of the evidence that it was highly probable that the operation of Bos's livestock facility would constitute a public nuisance, a private nuisance, or a trespass. Individual plaintiffs who testified expressed concern that the dairy would emit light, noise, odor, dust, and other airborne particles, and would generate traffic, so as to constitute a nuisance or trespass. Although their "allegations and concerns [may have been] understandable, they [were] not competent evidence of prospective nuisance or trespass and [did] not contribute to overcoming the burden of proof."

The trial court's judgment further stated that the competent evidence plaintiffs presented showed that the gist of their claims was that the waste containment pond liners were inadequately designed because they did not take into consideration that the proposed facility's site was underlain by karst. Therefore, the contaminants would allegedly leak into the surface water, groundwater, and an underlying aquifer, and move into plaintiffs' wells and public waterways. This evidence primarily came from Samuel Panno and Peter Huettl. Numerous exhibits showed that Huettl relied heavily on Panno's opinions to form his own opinions. However, on cross-examination, Panno admitted that a site-specific investigation was needed for a thorough geological assessment of a site. Panno further: "admitted that there were a number of tests which could have been performed which would provide a more definitive indicator of the presence of karst, including ground water chemistry evaluation, well monitoring, and dye tracing. These tests were not performed because of their expense. Mr. Panno also admitted that he never examined rock corings from the site and never sought bacterial well data for the area. He admitted that these things were not prohibitively expensive, he could have done them, and he should have done them as they would have been informative as to the question of karst."

Plaintiffs' evidence was otherwise vague as to the specific types of alleged contaminants, their concentrations, ...


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