NOTICE
2015 IL App (5th) 140583
Decision filed 07/10/15. The
text of this decision may be NO. 5-14-0583
changed or corrected prior to
the filing of a Peti ion for
Rehearing or the disposition of IN THE
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
MARIE SMITH, MARK DONHAM, ) Appeal from the
VITO MASTRANGELO, SAM STEARNS, ) Circuit Court of
TABITHA TRIPP, NATHAN CZUBA, ) Madison County.
ANNETTE McMICHAEL, and SOUTHERN )
ILLINOISANS AGAINST FRACTURING OUR )
ENVIRONMENT (SAFE), an Illinois Not-for-Profit )
Corporation, )
)
Plaintiffs-Appellants, )
)
v. ) No. 14-CH-711
)
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, ) Honorable
) Barbara L. Crowder,
Defendants-Appellees. ) Judge, presiding.
________________________________________________________________________
JUSTICE WELCH delivered the judgment of the court, with opinion.
Justices Schwarm and Moore concurred in the judgment and opinion.
OPINION
¶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
1
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
2
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
3
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
4
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 IDNR from adopting
or filing the regulations; and (3) the entry of an order prohibiting the Secretary of State
from publishing the regulations.
¶ 10 Thereafter, on November 14, 2014, the IDNR filed the adopted rules with the
Secretary of State pursuant to section 5-65 of the Administrative Procedure Act (5 ILCS
100/5-65 (West 2012)). The rules became effective when they were filed with the
Secretary of State. 5 ILCS 100/5-40(d) (West 2012).
5
¶ 11 On November 18, 2014, the defendants filed an objection to the plaintiffs' motion
for preliminary relief, arguing that the plaintiffs' request to enjoin adoption and filing of
the regulations was moot because the rules had been filed with the Secretary of State on
November 14, 2014, and had become effective on that date. The objection further argued
that the plaintiffs failed to demonstrate irreparable harm as required to obtain a
preliminary injunction in that they offered "nothing more than conclusory allegations that
they [would] suffer irreparable harm." Specifically, the objection argued that the
plaintiffs' argument with regard to irreparable harm was "based entirely on speculation"
in that the plaintiffs had not alleged any of the following facts: "that anyone has applied
or will apply for a permit to conduct horizontal high volume hydraulic fracturing on or
near any property" owned by them; that such an application for a permit would be
granted; and that even if such a permit existed, imminent harm would result to them or
their property. The objection argued that the plaintiffs failed to set forth "any basis to
conclude that the mere enactment of rules setting forth standards and procedures for
permitting and regulating hydraulic fracturing *** [would] cause any harm to [them], let
alone irreparable harm." (Emphasis in original.)
¶ 12 Furthermore, the objection argued that the plaintiffs failed to demonstrate an
inadequate remedy at law and that there was a likelihood of success on the merits. The
objection noted that section 1-50 of the Act (225 ILCS 732/1-50 (West Supp. 2013))
allowed any person having an interest that is or may be adversely affected by a hydraulic
fracturing permit application to request a public hearing. The objection further noted that
decisions on permit applications were subject to judicial review under the Administrative
6
Review Law (225 ILCS 732/1-53(d) (West Supp. 2013)). Therefore, the objection
argued that the plaintiffs failed to demonstrate that this procedure was inadequate to
address any alleged harms that they may suffer. With regard to the likelihood of the
success on the merits, the objection argued that the plaintiffs failed to demonstrate that
the IDNR violated the Administrative Procedure Act during the rulemaking process.
¶ 13 On November 18, 2014, a hearing was held on the plaintiffs' motion for
preliminary relief. At the hearing, the trial court accepted the facts pled in the complaint
as true for the purposes of the hearing. The court did not allow the presentation of
witnesses or affidavits and just accepted arguments of counsel. After hearing arguments,
the court took the matter under advisement.
¶ 14 On November 21, 2014, the trial court entered a written order denying the
plaintiffs' motion for preliminary relief. In its order, the court noted that the plaintiffs had
clearly stated that the request for the preliminary injunction was based solely on their
allegations "that mandatory procedural requirements governing how an agency adopts
rules were violated." The court concluded that it was "unable to determine whether the
IDNR allowed reasonable participation in a preliminary injunction hearing." The court
concluded that it was not clear, without discovery and further briefing, whether the IDNR
violated the Administrative Procedure Act during the rulemaking procedure.
¶ 15 Further, the trial court noted that the plaintiffs must establish the following
elements in order to be entitled to a preliminary injunction: they possess a clear right or
interest needing protection; they have no adequate remedy at law; irreparable harm will
result if the preliminary injunction is not granted; and there is a reasonable likelihood of
7
success on the merits. With regard to the first element, clear right or interest in need of
protection, the court noted that the plaintiffs are citizens of Illinois and therefore have an
interest in having the government comply with the applicable law. The court also noted
that the plaintiffs include landowners, mineral interest owners, and members of
communities where high-volume horizontal hydraulic fracturing would be permitted
under the rules. Accordingly, the court found that the plaintiffs have a clearly
ascertainable right.
¶ 16 As for the likelihood of success on the merits, the court noted that the plaintiffs
had alleged multiple violations by the IDNR in its rulemaking procedures. The court
then noted that the plaintiffs are not required to prove that they will win in order to meet
this element. Instead, they need only raise a fair question as to the likelihood of their
success on the merits.
¶ 17 With regard to irreparable harm, the court stated as follows:
"Plaintiffs failed to establish that they will suffer irreparable harm if the Secretary
of State publishes the adopted rules. IDNR through JCAR adopted the rules. The
rules will allow applications to be filed. Facts must be alleged with certainty as to
what harm the plaintiffs will incur. Conclusory allegations that some of the
plaintiffs have land near some areas where someone may file an application for a
permit do not state irreparable harm. No applications have been filed, let alone
granted. Plaintiffs have not established imminent harm or irreparable injury will
occur simply by the publishing of the rules."
¶ 18 Accordingly, the trial court concluded that the plaintiffs had not met their burden
8
of proof regarding irreparable injury and therefore it could not grant the preliminary
injunction. The plaintiffs appeal.
¶ 19 Initially, the defendants argue that the plaintiffs' requested interlocutory relief is
moot in that the relief requested in their motion for preliminary injunction, to prohibit the
IDNR from adopting or filing the revised regulations and to prohibit the Secretary of
State from publishing the regulations, has already occurred. The plaintiffs concede that
the regulations were adopted and published after their motion for preliminary relief was
filed. The defendants note that the plaintiffs are now asking this court in their appellate
brief (1) to enter injunctive relief that prohibits the use of the regulations until a decision
on the merits can be made and (2) to direct the defendants to publish a notice in the
Illinois Register that the regulations have been enjoined. The defendants argue that this
relief was not requested in the trial court, and therefore, has been forfeited.
¶ 20 The plaintiffs counter that their requested relief was not "so limited" as their
motion also requested that the trial court find that the IDNR had failed to comply with
mandatory rulemaking procedures and that the plaintiffs had shown the requisite
elements for the issuance of a preliminary injunction. In support of this position, the
plaintiffs point out that during the hearing, the defendants' counsel advised that the rules
had been filed by the IDNR and the plaintiffs noted that there were still several levels of
remedies available. The plaintiffs also argue that they have made it clear that
"prohibition of the use of the invalid rules" was the goal of the motion for preliminary
injunction and the lawsuit. After reviewing the record, we agree with the plaintiffs and
will address the issue of whether the plaintiffs have raised a fair question as to the
9
requisite elements for the issuance of a preliminary injunction.
¶ 21 The purpose of a preliminary injunction is to preserve the status quo until the
merits of the case are decided. City of Kankakee v. Department of Revenue, 2013 IL App
(3d) 120599, ¶ 17. A preliminary injunction is an extraordinary remedy that is applicable
only in extreme emergency situations where serious harm would result if not issued. Id.
To establish entitlement to a preliminary injunction, the plaintiff must demonstrate the
following: (1) a clearly ascertainable right in need of protection; (2) that they will suffer
irreparable harm if the injunction does not issue; (3) no adequate remedy at law for the
injury; and (4) the likelihood of success on the merits. People ex rel. Klaeren v. Village
of Lisle, 202 Ill. 2d 164, 177 (2002). The party seeking the injunction must raise a fair
question concerning the existence of the claimed right, i.e., a fair question as to the
existence of each element. Clinton Landfill, Inc. v. Mahomet Valley Water Authority, 406
Ill. App. 3d 374, 378 (2010).
¶ 22 At the preliminary injunction stage, the trial court should not consider contested
issues of fact, nor should it decide the merits of the case. Harper v. Missouri Pacific R.R.
Co., 264 Ill. App. 3d 238, 249 (1994). In general, an abuse of discretion standard of
review applies to the trial court's decision to grant or deny a preliminary injunction.
Clinton Landfill, 406 Ill. App. 3d at 378. A trial court abuses its discretion where its
ruling is arbitrary, fanciful, or unreasonable or where no reasonable person would adopt
the court's view. World Painting Co. v. Costigan, 2012 IL App (4th) 110869, ¶ 12. The
relevant question for the reviewing court is whether there was a sufficient showing made
to the circuit court to sustain its order. Scheffel Financial Services, Inc. v. Heil, 2014 IL
10
App (5th) 130600, ¶ 9.
¶ 23 However, where the trial court does not make any factual findings and instead
rules on a question of law, the standard of review is de novo. Clinton Landfill, 406 Ill.
App. 3d at 378. Furthermore, where an answer is not filed, an injunction must be
measured by the sufficiency of the complaint and all well-pleaded facts are to be taken as
true. McErlean v. Harvey Area Community Organization, 9 Ill. App. 3d 527, 529 (1972).
¶ 24 The plaintiffs first argue that the irreparable-harm element for the issuance of a
preliminary injunction should be presumed where the defendants failed to follow the
Administrative Procedure Act during the rulemaking process. The plaintiffs ask this
court to hold that "when the mandatory rulemaking provisions are violated, rendering the
rulemaking invalid, the result is irreparable harm to Illinois citizens, specifically, in this
case to the [p]laintiffs." In support of their position, they cite People ex rel. Sherman v.
Cryns, 203 Ill. 2d 264, 277 (2003), which states that where an injunction is sought by the
State or a governmental agency pursuant to express authorization of a statute, the
requisite elements necessary to obtain an injunction need not be satisfied. Instead, the
State or agency seeking the injunction only need to show that the statute was violated and
that the statute relied upon specifically allows for injunctive relief. Id. "The principle
underlying the willingness of the courts to issue statutory injunctions to public bodies to
restrain violations of a statute is that harm to the public at large can be presumed from the
statutory violation alone." People ex rel. Hartigan v. Stianos, 131 Ill. App. 3d 575, 580
(1985).
¶ 25 In response, the defendants argue that irreparable harm should not be presumed in
11
this case. The defendants note that the plaintiffs are not government agencies seeking to
enjoin a statutory violation nor does the Hydraulic Fracturing Act or the Administrative
Procedure Act expressly authorize actions to enjoin statutory violations. The defendants
acknowledge that the Administrative Procedure Act does expressly authorize challenges
to the adoption of regulations under section 5-35(b) of the Administrative Procedure Act
(5 ILCS 100/5-35(b) (West 2012)), but argue that the provision does not expressly
authorize actions to enjoin statutory violations. Accordingly, the defendants argue that
the rule set forth in Sherman is inapplicable to the present case, which was brought by
private parties to enjoin violations of statutes that do not expressly provide for such
actions.
¶ 26 After carefully reviewing the case law, we decline to extend the rule set forth in
Sherman to the present action. As noted by the defendants, the plaintiffs are private
parties, not the State or a government agency, seeking to enjoin alleged violations of the
Administrative Procedure Act, which does not expressly provide for injunctive relief for
statutory violations. Section 5-35(b) of the Administrative Procedure Act (5 ILCS 100/5-
35(b) (West 2012)) does expressly authorize challenges to the adoption of regulations on
the ground of noncompliance with the procedural requirements; however, this provision
does not explicitly provide for injunctive relief where the Administrative Procedure Act
has been violated. Accordingly, we will not extend the rule set forth in Sherman to this
case and, therefore, the plaintiffs' motion must establish a fair question as to the existence
of each element.
¶ 27 Because we conclude that the plaintiffs have failed to establish a fair question as to
12
the existence of irreparable harm, we will not address the remaining elements necessary
to obtain a preliminary injunction. See Smith Oil Corp. v. Viking Chemical Co., 127 Ill.
App. 3d 423, 431-32 (1984) (where the party seeking the injunction has failed to establish
a fair question as to the existence of irreparable harm, the issuance of an injunction is not
warranted). As previously explained, an injunction is only authorized where the party
seeking it has raised a fair question that, among the other requirements, he will suffer
irreparable harm without the granting of the injunction. Smith Oil Corp. v. Viking
Chemical Co., 127 Ill. App. 3d 423, 431 (1984). An alleged injury is irreparable where it
is of such nature that the injured party cannot be adequately compensated in damages or
when the damages cannot be measured by any certain pecuniary standard. Kalbfleisch v.
Columbia Community Unit School District Unit No. 4, 396 Ill. App. 3d 1105, 1116
(2009). "The requirement of the showing of imminent injury is not satisfied by proof of a
speculative possibility of injury and such relief will not be granted to allay unfounded
fears or misapprehensions." (Internal quotation marks omitted.) Smith Oil Corp., 127 Ill.
App. 3d at 431.
¶ 28 The plaintiffs argue that they have established a fair question as to irreparable
harm in that they "lack *** any opportunity to remedy the deficient, invalid rulemaking
before the rules are applied." The plaintiffs argue that the invalid rules will trigger the
permit application process under the Hydraulic Fracturing Act, which will result in the
approval of invalid permits for high-volume horizontal hydraulic fracturing operations
on, under, or near their property. Specifically, they argue that the irreparable harm is the
use of the invalid rules during the pendency of the litigation. The defendants counter that
13
the plaintiffs have only offered "conclusory and speculative allegations advancing
generalized grievances that fall far short of the required showing of immediate and
irreparable harm specific to them."
¶ 29 Here, the trial court did not allow the presentation of witnesses or affidavits and
instead relied on the arguments of counsel in making its decision. After hearing
arguments of counsel, the court concluded that the plaintiffs had failed to establish that
they will suffer irreparable harm if a preliminary injunction was not issued. The court
noted that in order to establish irreparable harm, facts must be alleged with certainty as to
what harm the plaintiffs will incur. The court concluded that "[c]onclusory allegations
that some of the plaintiffs have land near some areas where someone may file an
application for a permit do not state irreparable harm." The court noted that no
applications have been filed, let alone granted.
¶ 30 We agree with the trial court that the plaintiffs have not established a fair question
that they will suffer an imminent, cognizable harm as a result of the use of the allegedly
invalid rules during the pendency of the litigation. The plaintiffs' claims are too
speculative to justify the extraordinary relief afforded by the issuance of a preliminary
injunction. Therefore, we conclude that the plaintiffs have failed to raise a fair question
as to the existence of irreparable harm.
¶ 31 For the foregoing reasons, we affirm the judgment of the circuit court of Madison
County.
¶ 32 Affirmed.
14
2015 IL App (5th) 140583
NO. 5-14-0583
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_____________________________________________________________________________________
MARIE SMITH, MARK DONHAM, VITO MASTRANGELO, ) Appeal from the
SAM STEARNS, TABITHA TRIPP, NATHAN CZUBA, ) Circuit Court of
ANNETTE McMICHAEL, and SOUTHERN ILLINOISANS ) Madison County.
AGAINST FRACTURING OUR ENVIRONMENT (SAFE), )
an Illinois Not-for-Profit Corporation, )
)
Plaintiffs-Appellants, )
)
v. ) No. 14-CH-711
)
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, ) Honorable
) Barbara L. Crowder,
Defendants-Appellees. ) Judge, presiding.
_____________________________________________________________________________________
Opinion Filed: July 10, 2015
_____________________________________________________________________________________
Justices: Honorable Thomas M. Welch, J.
Honorable S. Gene Schwarm, J., and
Honorable James R. Moore, J.,
Concur
_____________________________________________________________________________________
Attorneys Penni S. Livingston, Livingston Law Firm, 5701 Perrin Road, Fairview Heights,
for IL 62208; Natalie Laczek, P.O. Box 232, Riverside, IL 60546; Vito A.
Appellants Mastrangelo, P.O. Box 1253, Mt. Vernon, IL 62864
_____________________________________________________________________________________
Attorneys Lisa Madigan, Attorney General, State of Illinois, Carolyn E. Shapiro, Solicitor
for General, Brett E. Legner, Deputy Solicitor General, 100 West Randolph Street,
Appellees 12th Floor, Chicago, IL 60601
_____________________________________________________________________________________