Sierra Club v. Office of Mines & Minerals of the Dep't of Natural Res.

29 N.E.3d 1068

The SIERRA CLUB; Prairie Rivers Network ; and Openlands, Plaintiffs–Appellants

v.The OFFICE OF MINES AND MINERALS OF the DEPARTMENT OF NATURAL RESOURCES; The Office of Realty and Environmental Planning of the Department of Natural Resources; The Department of Natural Resources; Marc Miller, Director of Natural Resources in his Professional Capacity; and Mississippi Sand, LLC, Defendants–Appellees.

No. 4–14–0405.

Appellate Court of Illinois, Fourth District.

March 5, 2015.

Modified upon denial of rehearing May 15, 2015.

Mark Templeton and Mark Rohan, law student, University of Chicago Law School, and Albert Ettinger, all of Chicago, and Eric M. Schwing, Springfield, for appellants.

Claire A. Manning (argued), Brown, Hay & Stephens, LLP, Springfield, for appellee Mississippi Sand, LLC.

William P. Hardy (argued), Hinshaw & Culbertson LLP, Springfield, and Russell R. Eggert, Lathrop & Gage LLP, Chicago, for other appellees.

OPINION

Justice TURNER delivered the judgment of the court, with opinion.

¶ 1 Plaintiffs, the Sierra Club, Prairie Rivers Network, and Openlands, appeal the Sangamon County circuit court's April 16, 2014, dismissal of their first-amended petition for review of the actions of defendants the Department of Natural Resources (Department); the Department's Office of Mines and Minerals; the Department's Office of Realty and Environmental Planning; and Marc Miller, the Department Director (collectively, Department defendants), in approving the surface-mining permit of defendant, Mississippi Sand, LLC (Mississippi Sand). On appeal, plaintiffs assert they have standing to challenge the Department defendants' actions. We affirm.

¶ 2 I. BACKGROUND

¶ 3 A. La Salle County Board Proceedings

¶ 4 In September 2011, Mississippi Sand submitted an application for a zoning special-use permit to the La Salle County department of environmental services and land use, seeking to conduct mining operations on a site in La Salle County. In January 2012, the La Salle County board approved a special-use permit for Mississippi Sand's mining operations.

¶ 5 B. Department Proceedings

¶ 6 On February 16, 2012, Mississippi Sand applied to the Department's Office of Mines and Minerals for a 10–year surface-mining permit to extract silica from the St. Peter Sandstone Formation, which is adjacent to the eastern entrance of Starved Rock State Park. With its application, Mississippi Sand included a reclamation plan and a reclamation map, which depicted its plans for restoring the land after completing the proposed open-pit mine. Mississippi Sand also submitted an “affected area” map. Those documents were required by section 5(e)(14) of the Surface–Mined Land Conservation and Reclamation Act (Mining Act) (225 ILCS 715/5(e)(14) (West 2012)). The application also attached several other documents, including an October 2011 threatened/endangered-species report for the area that was prepared by Planning Resources, Inc. Another document indicated that, in June 2011, Planning Resources, Inc., contacted the Department for use of the ecological compliance assessment tool (EcoCAT). According to the document, “EcoCAT uses databases, Geographic Information System mapping, and a set of programmed decision rules to determine if proposed actions are in the vicinity of protected natural resources.” The other documents show La Salle County had consulted with the Department before issuing the special-use permit.

¶ 7 Michael Falter, supervisor of operations of the mine safety and training division of the Office of Mines and Minerals, forwarded Mississippi Sand's permit application to Pat Malone, a Department employee, for an endangered-species review. In a March 2012 e-mail, Malone informed Falter Mississippi Sand's surface-mining-permit application was reviewed in accordance with section 11 of the Illinois Endangered Species Protection Act (520 ILCS 10/11 (West 2012) ), section 17 of the Illinois Natural Areas Preservation Act (Preservation Act) (525 ILCS 30/17 (West 2012) ), and part 1075 of Title 17 of the Illinois Administrative Code (17 Ill. Adm.Code 1075). The e-mail then noted consultation for this surface-mining permit had been terminated.

¶ 8 Also in March 2012, a group of citizens sent Miller, the Department's director, a letter raising concerns about Mississippi Sand's proposed mine near Starved Rock State Park. Elliot Brinkman, as an employee of plaintiff Prairie Rivers Network, helped draft the aforementioned citizen letter. (The affidavit of Brinkman was attached to plaintiffs' motion for summary judgment.) Plaintiffs Sierra Club and Openlands sent letters to the Illinois Environmental Protection Agency regarding Mississippi Sand's permit application. Openlands indicated it had grave concerns about air and water pollution as well as the mine impacting historical and cultural resources. Openlands also made a request for documents related to the permit-approval process under the Freedom of Information Act (5 ILCS 140/ 1 et seq. (West 2012)). In July 2012, the Department responded to the aforementioned letters. As to the citizen letter, Miller explained (1) the Department had carefully and seriously reviewed the application material to ensure full compliance with the law and (2) why they were not entitled to a public hearing under the Rivers, Lakes, and Streams Act (615 ILCS 5/4.9 et seq. (West 2012)). The acting director of the Department's Office of Mines and Minerals, Michael Woods, responded to Openlands's and Sierra Club's letters, addressing the concerns raised by the organizations and noting the Department was committed to ensuring the proposed mine operation is conducted within compliance of all applicable regulations. Also in July 2012, the Department denied Openlands access to the documents regarding the short- and long-term impact on the 13 statutory factors in the Mining Act (225 ILCS 715/5(g) (West 2010)), the documents and data that formed the basis for the Department's decision as to those 13 factors, and the final documents evaluating the overall impact of the mine and final consideration given to the 13 factors.

¶ 9 On June 4, 2012, the Department's Office of Mines and Minerals completed a permit review, analyzing Mississippi Sand's permit application. The review concluded by stating the Department had determined Mississippi Sand's plan complied with the Mining Act (225 ILCS 715/1 et seq. (West 2012)) and its implementing regulations, and thus a permit would be granted subsequent to Mississippi Sand providing the required reclamation bond and permit fee. On November 13, 2012, the Department's Office of Mines and Minerals issued Mississippi Sand a surface-mining permit.

¶ 10 C. Circuit Court Proceedings

¶ 11 On December 12, 2012, plaintiffs filed their petition for review of an administrative action. In addition to the Department, the Department's Office of Mines and Minerals, the Department's Office of Realty and Environmental Planning, and Director Miller, the petition also listed as defendants Woods, Falter, and Todd Rettig, as acting director of the Office of Realty and Environmental Planning. Under an agreed order in March 2014, the trial court dismissed without prejudice Woods, Falter, and Rettig as defendants. In February 2013, both the Department defendants and Mississippi Sand filed motions to dismiss plaintiffs' petition. The next month, plaintiffs sought leave to file their first-amended petition. Under an agreed order, plaintiffs were granted leave to file their first-amended petition.

¶ 12 Plaintiffs' first-amended petition contains five counts. Count I asserts Mississippi Sand violated section 5(e) of the Mining Act (225 ILCS 715/5(e) (West 2010)) and applicable administrative regulations by submitting an incomplete, inaccurate, and deficient reclamation map, reclamation plan, and “affected area” map. The Department defendants violated the Mining Act by approving the flawed reclamation map, reclamation plan, and “affected area” map and then relying on them in the decision to approve the surface-mining permit. Count I noted numerous errors in the aforementioned documents. Count I sought (1) a declaration that the issuance of the mining permit was arbitrary and capricious because the Department defendants did not follow proper procedures, (2) a declaration the Department defendants could not grant the permit because Mississippi Sand did not present complete and accurate plans and maps, and (3) the voiding of the permit.

¶ 13 Count II alleged the Department's Office of Mines and Minerals violated the Mining Act by failing to adequately consider the 13 statutorily required factors contained in section 5(g) of the Mining Act (225 ILCS 715/5(g) (West 2010)). Count II sought (1) a declaration that the issuance of the mining permit was arbitrary and capricious and not in accordance with the law, (2) a declaration the Department defendants could not grant the permit without fully and fairly considering the 13 statutory factors required by the Mining Act and implementing regulations, and (3) the voiding of the permit.

¶ 14 Count III asserted the Department defendants violated the due-process rights of plaintiffs and their members. Plaintiffs noted they participated in the agency proceeding to the best of their ability but were hampered by the Department defendants' refusal to provide necessary information until after the mining permit was issued. They further noted the letters they sent to the Department regarding Mississippi Sand's permit application and argued those letters were not meaningfully addressed. Additionally, plaintiffs contended their property interests and the property interests of their members were at stake because the permit allowed Mississippi Sand to engage in activities that would emit silica dust, which would endanger the health, property values, and business assets of plaintiffs and their members. Plaintiffs asserted they were entitled to (1) notice of the details of Mississippi Sand's reclamation...