Parsons v. Walker, 12438

Citation28 Ill.App.3d 517,328 N.E.2d 920
Decision Date22 May 1975
Docket NumberNo. 12438,12438
PartiesA. R. PARSONS et al., Plaintiffs-Appellants, v. Daniel L. WALKER, successor in office to Richard B. Ogilvie, as Governor of the State of Illinois and as an ex officio member of the Board of Trustees of the University of Illinois and his successor in said offices, et al., Defendants-Appellees.
CourtUnited States Appellate Court of Illinois

George M. Covington, Chicago, Kenneth E. Baughman, Monticello, for plaintiffs-appellants; Steven N. Klein, Environmental Lawyers Clinic, Chicago, of counsel.

William J. Scott, Atty. Gen., Springfield, Jeffrey C. Taylor, Sp. Asst. Atty. Gen., Decatur, Franklin, Flynn & Palmer, Champaign, of counsel, John L. Franklin, Charles L. Palmer, Champaign, for defendants-appellees.

SIMKINS, Presiding Justice:

Plaintiffs, citizens of Piatt County, appeal from the dismissal of their first amended complaint seeking to enjoin the governor and other state officials and the trustees of the University of Illinois from entering into agreements with the United States government which would allegedly set into motion the construction of the Oakley Reservoir project on the Sangamon River. The plaintiffs present as issues: Whether the complaint stated a cause of action under article XI of the Illinois Constitution, S.H.A., giving all citizens the right to a healthful environment; whether plaintiffs as citizens have a cause of action against the University of Illinois officials for breach of a public trust by their action regarding Allerton Park; and whether plaintiffs have stated a cause of action under the Illinois Environmental Protection Act. (Ill.Rev.Stat.1973, ch. 111 1/2, 1001 et seq.) The trial court granted defendants' motion to dismiss plaintiffs' complaint and the issue here is whether that complaint stated a cause of action.

The Oakley Reservoir project was authorized by Congress in 1962. It is a fair summary of applicable federal law to say that after a flood control poroject is authorized, before any appropriations may be expended on construction, the state or responsible local governmental bodies must offer formal assurances to the Secretary of the Army that they will provide the necessary cooperation, and if such assurances are not given within five years after written request, the project is automatically deauthorized. (Flood Control Act, 33 U.S.C. § 701c; Flood Control Act of 1970, 42 U.S.C. § 1962d--5b(a); Water Supply Act of 1958, 43 U.S.C. § 390b(b).) On May 29, 1969, some of the defendants entered into a 'Memorandum of Agreement' agreeing to serve as local sponsor and provide the non-federal interest and assurances, with the University of Illinois agreeing to support 'actively and strongly development of the project and to participate in efforts to reinstitute regional support for the project.' On July 8, 1970, the Illinois General Assembly appropriated $75,000 for planning and data gathering in connection with the project. On May 26, 1971, the director of the Illinois Department of Public Works, pursuant to the above legislation, entered into an 'Assurance of Local Cooperation', stating in essence that the State of Illinois sought to furnish all assurances satisfactory to the federal government that it would provide necessary items of local cooperation and reciting a list of things which the state assured that it would perform.

After plaintiffs' original seven-count complaint was dismissed, the first amended complaint was filed incorporating those seven and adding two more counts. Briefly stated, Counts I and II alleged as grounds for an injunction that the defendant did not comply with procedures outlined in the Environmental Protection Act; Counts III and VIII are based on damage to an alleged property interest, with Count VIII expounding on the specific damages foreseen by plaintiffs by the construction of the reservoir; Counts IV and IX seek the injunction to reserve Allerton Park from destruction by the Oakley Reservoir project, again the later added Count IX particularizing the elements of destruction contemplated; Counts V and VI alleged that defendants have improperly spent Illinois tax money in dealing with the federal government in relation to the project, and that for defendants to enter into any future agreements with the federal government would be in violation of the separation of powers doctrine because the legislature must specifically determine every expenditure. Count VII appears to have been waived by the plaintiffs in the circuit court. In general, the complaint alleged that the proposed actions of defendants would irreparably damage the healthful environment of the plaintiffs, in violation of article XI, section 1, of the Illinois Constitution; that the proposed actions would result in the flooding and destruction of Allerton Park, a public park held in trust by the University of Illinois, thereby constituting a violation of a public trust by defendants; and, in addition, that the proposed actions of defendants would violate the Illinois Environmental Protection Act and the public policy of the State as expressed in that statutory provision, as well as article XI of the 1970 Constitution.

Defendants did not deny the allegations, but filed motions to dismiss on the grounds the plaintiffs had failed to state a cause of action. The trial court granted the motion to dismiss, saying that plaintiffs had not stated a cause of action under article XI of the Constitution because they were unable to provide specific medical or chemical evidence of the alleged danger to a healthful environment until such plans were finalized, and that plaintiffs had failed to state in what factual way their healthful environment would be damaged. In addition, the court found that the plaintiffs did not have standing to sue to prevent the destruction of Allerton Park because the park was held as a 'charitable trust' rather than a 'public trust' and that only the attorney general could bring an action for the enforcement of a charitable trust. The court said that if the injunction were granted now it would prevent plans and specifications 'of sufficient detail' to allow the Environmental Protection Agency to make intelligent decisions. The court found that section 1043 of the Environmental Protection Act was a reasonable limitation on the public right to sue to protect the environment as contemplated by article XI, section 2 of the Constitution. The court further found that section 1045 of the Environmental Protection Act giving plaintiffs access to the court to enforce the provisions of that Act did not apply since no complaint had ever been filed with the Environmental Protection Agency. In general, the court found that the plaintiffs had plleaded conclusions as to damage which might result in the future rather than facts. As to the University of Illinois' action with regard to Allerton Park, the court found the same prematurity problems and also pointed out that the indenture establishing the park gave the trustees power to sell with consent of particular officials and excused the other restrictions if governmental action (rather than private) affected the land.

Article XI of the 1970 Illinois Constitution provides in section 1 that it is the public policy of the state and the duty of each person to provide and maintain a healthful environment. Section 2 of the article states that 'Each person has the right to a healthful environment. Each person may enforce this right against any party, governmental or private, through appropriate legal proceedings subject to reasonable limitation and regulation as the General Assembly may provide by law.' The Committee on General Government Comments state that section 2 eliminates the judicially imposed restrictions that individuals have suffered 'special damage' in order to have standing to bring action to protect the environment. Plaintiffs contend that not only does this give them standing to seek the injunction in this suit, but also it has given them a cause of action. Defendants contend that the Environmental Protection Act (Ill.Rev.Stat.1973, ch. 111 1/2, 1001 et seq.) constitutes the 'appropriate legal proceedings' and 'reasonable limitations and regulations' of the General Assembly referred to in section 2 of the Constitution, and that at best, plaintiffs' action for an injunction is premature because plaintiffs have not exhausted the remedies provided by the Environmental Protection Act. If the plaintiffs were only seeking an injunction because of violation of the Environmental Protection Act, then it seems clear that section 1045(b) requires them to have first proceeded under section 1031 and reached an unfavorable conclusion. The counts founded on alleged violations of the Environmental Protection Act were properly dismissed for failure to exhaust that remedy.

As to the injunctions sought to prevent defendants from entering more agreements or cooperating further with the federal government, the initial problem is the sufficiency of such a complaint for an injunction due to the stringent requirements for this extraordinary remedy. It is well established that an injunction is an exceptional remedy which is not granted as a matter of course, but with great caution and only when plaintiff's right to such relief is clearly established. (Miollis v. Schneider, 77 Ill.App.2d 420, 222 N.E.2d 715). Among the general requirements when an injunction is sought are that the complaint state essential facts showing the plaintiff's cause of action (Illinois Pure Water Committee v. Yoder, 6 Ill.App.3d 659, 286 N.E.2d 155), and the facts alleged must establish that if the acts of the defendant are not enjoined, substantial injury will result to the plaintiff. (McGinty v. Skoog Const. Co., 52 Ill.App.2d 456, 202 N.E.,2d 112, abst.) It is not sufficient to allege injury or a mere apprehension or fear of injury, but rather the complaint must show that defendant has...

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