Helping Others Maintain Envtl. Standards v. Bos

• Citation: 346 Ill.Dec. 789,406 Ill.App.3d 669,941 N.E.2d 347
• Decision Date: 22 December 2010
• Docket Number: Nos. 2–09–1283,2–10–0162.,s. 2–09–1283
• Parties: 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.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.
• Court: United States Appellate Court of Illinois

406 Ill.App.3d 669

941 N.E.2d 347

346 Ill.Dec. 789

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.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.

Nos. 2–09–1283

2–10–0162.

Appellate Court of Illinois, Second District.

Dec. 22, 2010.

Donald Q. Manning, McGreevy Williams P.C., Rockford, Thomas J. Nack, Nack, Richardson & Kurt, Galena, for A.J. Bos, Tradition Investments, LLC.David D. Albee, Jr., Galena, for Laurel Behrens, Leroy Behrens, Mary Jo Burke, Juanita Cropper, Jeffrey Graves, Helping Others Maintain Environmental Standards, Dean B. Hicks, Steve Holesinger, Will Liberton, Lori Runkle, Richard Runkle.Lisa Madigan, Attorney General, Michael A. Scodro, Solicitor General, Brett E. Legner, Assistant Attorney General, Chicago, for Illinois Department of Agriculture in No. 2–10–0162.Danielle J. Diamond, Diamond & LeSueur, P.C., McHenry, James N. Saul, James N. Saul, LLC, Madison, WI, for Amici Curiae Illinois Chapter of Sierra Club, Illinois Council of Trout Unlimited, Prairie Rivers Network in No. 2–10–0162.Justice BOWMAN delivered the opinion of the court:

[346 Ill.Dec. 794 , 406 Ill.App.3d 670] 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.¹ 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

[346 Ill.Dec. 795 , 941 N.E.2d 353]

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, nonbinding 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 CD–ROM 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” ² (map 8), OR IF SOIL SAMPLES FROM WITHIN 20 feet of the livestock waste

[346 Ill.Dec. 796 , 941 N.E.2d 354]

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 ...