dissenting:
If the majority opinion had been the law in fifth century Greece, the Parthenon could not have been built. If it had been the law of the Galapagos Islands in the 19th century, Charles Darwin would not have been permitted to set foot thereon. Examples could be multiplied almost without number where civilization could have suffered immeasurably as a result of mindless atavism.
The difficulty with the majority position is that it fails to differentiate between State parks and nature preserves. The statute makes a plain distinction throughout and recognizes that they fulfill different functions. The very title of the statute demonstrated the different entities: “An Act in relation to the acquisition, control, maintenance, improvement and protection of State parks and nature preserves.” Nature preserves were added to the Act in 1963. Legislation concerning State parks, on the other hand, has been in existence at least since 1911.
The State Parks and Nature Preserves Act (Ill. Rev. Stat. 1977, ch. 105, par. 465 et seq.) (the Act) in section 1 requires that all parks be open to the people of this State. Section 2a requires that nature preserves be preserved and protected against modification resulting from occupation or development which would destroy their natural condition. Parks, therefore, are to be managed and made suitable for use by all the people. Nature preserves are to be somehow mummified so that the well-known prediliction of the proletariat for destruction and vandalism may be prevented. The Act makes the general distinction between conservation (parks) and preservation (nature preserves).
The majority overlooks and ignores critical language in the general powers given to the Department of Conservation in the Act concerning parks only. Section 2(3) requires that large forested areas in parks be preserved “for a recreation use different from that given by the typical city park” and that that area remain “unchanged by civilization, so far as possible, * * *." (Emphasis added.) Ill. Rev. Stat. 1977, ch. 105, par. 466(3).
The language plainly indicates to me that State parks will not have baseball diamonds, football fields, tennis courts, ice rinks, and swimming pools, but rather, picnic grounds, hiking trails, lookout towers, and observation points. The phrase, “so far as possible,” is a plain indication to me that the legislature knew that use by the public would be antithetical to a forest primeval. It therefore permitted modifications of the natural surroundings in parks, but reserved the pristine state for nature preserves.
I see no necessity to resort to the Civil Administrative Code in order to find authority in the Department to conduct logging in the park. Section 1 of the Act vests broad management powers in the Department and section 4(6) authorizes it to contract with anyone consistent with the purposes of the Act. The record in the trial court indicates that the Department had carefully considered what might be done with the burn area and had acted on the best advice it could obtain. By ordering the trial court to enter a permanent injunction, this court has made an unwarranted intrusion into the prerogatives of the executive branch of government and in effect has constituted the plaintiff in this suit as a shadow Department of Conservation, unelected and unappointed, responsible only to itself.
I am left with the distinct impression that the plaintiff’s concern is not so much for parks and trees, but with money. At oral argument plaintiff’s counsel indicated that its motive was to prevent any profit-making in State parks and that any profit from State parks was “suspect.” The majority apparently concurs, sub silentio, with its reference to “commercial exploitation.” The record does not bear this out. The Director of the Department testified without contradiction that there was no policy established to conduct commercial logging operations in State parks and the operation proposed in Pere Marquette came about as a result of shortage of department personnel and the hope of recovering at least part of the cost of rehabilitation by selling the logs. The unanswered question is whether there would have been any lawsuit at all if the logging in Pere Marquette were being done by the department itself.
I agree with the majority that the trial court was in error in imposing its own conditions on the logging operation. I strenuously disagree with the majority’s imposition of an injunction, especially after a pious recital of the doctrine of judicial restraint in the interference with the discretion of a public officer. The State parks will be given over to brambles, briars and buckeybrush.
I would vacate the trial court’s order imposing special conditions, and I would affirm its denial of injunctive relief.