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Smith v. Department of Natural Resources

Court of Appeals of Illinois, Fifth District

July 10, 2015

MARIE SMITH, MARK DONHAM, VITO MASTRANGELO, SAM STEARNS, TABITHA TRIPP, NATHAN CZUBA, ANNETTE McMICHAEL, and SOUTHERN ILLINOISANS AGAINST FRACTURING OUR ENVIRONMENT (SAFE), an Illinois Not-for-Profit Corporation, Plaintiffs-Appellants,
v.
THE DEPARTMENT OF NATURAL RESOURCES, an Illinois State Agency, MARC MILLER, Director of Natural Resources, PAT QUINN, Governor of the State of Illinois, and JESSE WHITE, Secretary of State of the State of Illinois, Defendants-Appellees

Appeal from the Circuit Court of Madison County. No. 14-CH-711. Honorable Barbara L. Crowder, Judge, presiding.

For Appellants: Penni S. Livingston, Livingston Law Firm, Fairview Heights, IL; Natalie Laczek, Riverside, IL; Vito A. Mastrangelo, Mt. Vernon, IL.

For Appellees: Lisa Madigan, Attorney General, State of Illinois, Carolyn E. Shapiro, Solicitor General, Brett E. Legner, Deputy Solicitor General, Chicago, IL.

JUSTICE WELCH delivered the judgment of the court, with opinion. Justices Schwarm and Moore concurred in the judgment and opinion. Honorable Thomas M. Welch, J. Honorable S. Gene Schwarm, J., and Honorable James R. Moore, J., Concur.

OPINION

WELCH, JUSTICE.

[¶1] The plaintiffs, Marie Smith, Mark Donham, Vito Mastrangelo, Sam Stearns, Tabitha Tripp, Nathan Czuba, Annette McMichael, and Southern Illinoisans Against Fracturing Our Environment (SAFE), sought a preliminary injunction to prevent the implementation of the rules adopted by the defendant, the Illinois Department of Natural Resources (IDNR), under the Hydraulic Fracturing Regulatory Act (Hydraulic Fracturing Act or Act) (225 ILCS 732/1-1 et seq. (West Supp. 2013)). The circuit court of Madison County entered an order denying the complaint for preliminary relief. For the reasons which follow, we affirm the decision of the circuit court.

[¶2] The plaintiffs are individual landowners from various counties in Illinois as well as SAFE, an Illinois not-for-profit corporation with its registered office in Johnson County, Illinois. The plaintiff landowners anticipate that hydraulic fracturing will occur in their locales. Most of the plaintiff landowners own the mineral rights in their land.

[¶3] Fracking is an oil and/or gas operation that uses vertical and horizontal wellbores together with large amounts of water, chemical additives, pressure, and explosive charges to reach and extract oil and gas from underground. The Hydraulic Fracturing Act applies to all wells in which high-volume horizontal hydraulic fracturing operations are planned, have occurred, or are occurring in Illinois. 225 ILCS 732/1-20 (West Supp. 2013). The Act was signed into law on June 17, 2013. Section 1-130 of the Hydraulic Fracturing Act (225 ILCS 732/1-130 (West Supp. 2013)) grants the IDNR the authority to adopt rules that may be necessary to accomplish the purposes of the Act.

[¶4] On November 15, 2013, the IDNR published its first notice of its proposed rules for the Hydraulic Fracturing Act pursuant to the general rulemaking provisions of the Illinois Administrative Procedure Act (Administrative Procedure Act) (5 ILCS 100/5-40 (West 2012)) and scheduled two public hearings, the first for November 26, 2013, in Chicago, and the second for December 3, 2013, in Ina. After receiving requests for further public hearings, the IDNR scheduled three additional hearings as follows: December 5, 2013, in Effingham; December 17, 2013, in Decatur; and December 19, 2013, in Carbondale. The Effingham hearing was thereafter rescheduled for December 16, 2013.

[¶5] Following the public hearings and the receipt of 38,000 public comments and 43,000 pages of written comments, the IDNR submitted its revised proposed rules to the Joint Committee on Administrative Rules (JCAR), which is a legislative committee that has authority over the adoption of rules. The submission of the revised proposed rules to JCAR commenced the second notice period pursuant to section 5-40(c) of the Administrative Procedure Act (5 ILCS 100/5-40(c) (West 2012)). As part of the second notice period, the IDNR published its response to the public comments. Attached to the revised proposed rules was a listing of over 200 sources that the IDNR reviewed in order to prepare the revised proposed rules.

[¶6] The second notice period was set to expire by default 45 days after it had commenced. On September 16, 2014, JCAR voted to extend the second notice for another 45 days. On November 6, 2014, JCAR voted to adopt the proposed rules. On November 10, 2014, the plaintiffs filed a nine-count " complaint for declaratory judgment and preliminary and permanent injunction."

[¶7] According to the complaint, the IDNR administrative regulations were invalid as the IDNR had failed to comply with the required statutory rulemaking procedures in the following manner: (1) the IDNR did not include a summary of the proposed rules in its regulatory agenda prior to the first notice period in violation of section 5-60 of the Administrative Procedure Act (5 ILCS 100/5-60 (West 2012)) and failed to state its reason in writing for not doing so, along with the facts that form the basis for that reason; (2) the IDNR failed to comply with section 5-40(b) of the Administrative Procedure Act (5 ILCS 100/5-40(b) (West 2012)) by not giving sufficient notice of the public hearings; (3) the IDNR failed to make available an agency representative to respond to general questions from the public regarding the agency's proposal and the rulemaking process in violation of section 5-40(b) of the Administrative Procedure Act (5 ILCS 100/5-40(b) (West 2012)); (4) the IDNR violated section 5-40 of the Administrative Procedure Act (5 ILCS 100/5-40 (West 2012)) by denying some citizens admittance to the public hearings, by not allowing some citizens to speak during the hearings, and by setting a predetermined time allotment of two hours at the hearings; (5) the IDNR failed to disclose, in its first notice, any published studies, published reports, or underlying data that was used in drafting the proposed rules or failed to use any published studies, published reports, or underlying data in drafting the proposed rules; (6) the IDNR provided false statements in its first notice when it indicated that other documents were not incorporated into the rules by reference, in violation of section 5-75 of the Administrative Procedure Act (5 ILCS 100/5-75 (West 2012)) and when it indicated that the rulemaking did not affect units of local government; (7) the IDNR violated the " spirit and purpose" of the Administrative Procedure Act by not publishing the transcript of the public hearings on its website until August 29, 2014; (8) the IDNR's cumulative violations of the Administrative Procedure Act deprived the plaintiffs of their rights under the Administrative Procedure Act; and (9) the IDNR violated section 1-97 of the Hydraulic Fracturing Act (225 ILCS 732/1-97 (West Supp. 2013)) by failing to submit a statutorily required report to the General Assembly by February 1, 2014.

[¶8] Also, on November 10, 2014, the plaintiffs filed a motion for preliminary relief, seeking a preliminary injunction to enjoin the defendants from adopting and filing the administrative regulations approved by JCAR and to prohibit the Secretary of State from publishing them. The motion alleged that the rules were " incomplete, inadequate, and invalidly enacted" and, as such, would cause " irreparable harm to the Plaintiffs and other members of the public who were deprived of an adequate opportunity to participate in the development of the proposed rules as required under [the Act]."

[¶9] The motion further alleged that the plaintiffs had no other adequate remedy under the law or in equity to correct the deficiencies with the rulemaking, and that they would suffer harm to their rights as Illinois citizens and landowners unless the defendants were prohibited from publishing the rules. Accordingly, the motion requested the following relief: (1) a finding that the IDNR failed to comply with multiple mandatory statutory rulemaking procedure requirements under the Administrative Procedure Act, which rendered the rules invalid; (2) the entry of an order prohibiting the ...


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