                             Illinois Official Reports

                                    Appellate Court



             Sierra Club v. Office of Mines & Minerals, 2015 IL App (4th) 140405



Appellate Court         THE SIERRA CLUB; PRAIRIE RIVERS NETWORK; and
Caption                 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.


District & No.          Fourth District
                        Docket No. 4-14-0405


Filed                   March 5, 2015
Modified upon
denial of rehearing     May 15, 2015


Decision Under          Appeal from the Circuit Court of Sangamon County, No.
Review                  12-MR-1021; the Hon. John P. Schmidt, Judge, presiding.



Judgment                Affirmed.


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

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

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


     Panel                   JUSTICE TURNER delivered the judgment of the court, with opinion.
                             Presiding Justice Pope and Justice Steigmann concurred in the
                             judgment and opinion.


                                              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.


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¶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

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       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 map,
       reclamation plan, and “affected area” map and (2) a predecision hearing but did not receive
       such. Additionally, plaintiffs assert that, if the Mining Act did not require notice or a
       predecision hearing, it was unconstitutional as applied to them. Count III requested the
       following declarations: (1) defendants violated plaintiffs’ and their members’ procedural
       due-process rights, (2) plaintiffs and their members and supporters whose protected property
       interests were endangered by the issuance of this mining permit were entitled to present their
       concerns to the Department defendants at a predecision hearing, and (3) the Mining Act and
       its implementing regulations as applied here violated plaintiffs’ procedural due-process
       rights.
¶ 15       Count IV contended the Department defendants violated section 17 of the Preservation
       Act (525 ILCS 30/17 (West 2012)) by failing to fulfill consultation requirements. Plaintiffs
       argued defendants did not completely follow the administratively required process for
       compliance with section 17 of the Preservation Act. They also asserted the Department’s

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       Office of Realty and Environmental Planning did not provide a justification for the
       termination of their consultation with the Office of Mines and Minerals, which again violated
       section 17 of the Preservation Act. Last, plaintiffs argued the Office of Realty and
       Environmental Planning relied on outdated and inaccurate information from the EcoCAT
       database to complete the consultations regarding Mississippi Sand’s zoning-variance permit
       and thus violated its duty to protect nature preserves and registered areas. Count IV requested
       (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 did not perform a
       proper consultation under the Preservation Act, (3) a declaration the Department defendants
       cannot rely exclusively or significantly upon EcoCAT for determining whether a valid record
       of occurrence for a listed species or natural area exists within the vicinity of the proposed
       action, (4) an order requiring the Department’s Office of Mines and Minerals to comply with
       the consultation requirements set forth in the Preservation Act through the writ of mandamus,
       and (5) the voiding of the permit.
¶ 16        Count V argued the totality of the circumstances illustrated in counts I, II, and IV showed
       arbitrary and capricious conduct. Count V 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 because Mississippi Sand
       did not present complete and accurate plans and maps, (3) 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, (4) a declaration the
       Department defendants did not perform a proper consultation under the Preservation Act, (5)
       a declaration the Department defendants cannot rely exclusively or significantly upon
       EcoCAT for determining whether a valid record of occurrence for a listed species or natural
       area exists within the vicinity of the proposed action, and (6) the voiding of the permit.
¶ 17        Both the Department defendants and Mississippi Sand filed motions to dismiss plaintiffs’
       first-amended complaint under both sections 2-615 and 2-619 of the Code of Civil Procedure
       (735 ILCS 5/2-615, 2-619 (West 2012)). In November 2013, plaintiffs filed a motion for
       summary judgment. In March 2014, both the Department defendants and Mississippi Sand
       filed motions to strike portions of plaintiffs’ memorandum of law in support of their motion
       for summary judgment and certain exhibits attached to the summary judgment motion. In
       April 2014, plaintiffs filed a motion to supplement the administrative record provided by the
       Department defendants.
¶ 18        On April 16, 2014, the circuit court held a hearing on all pending motions. After hearing
       the parties’ arguments, the court granted defendants’ motions to dismiss, finding plaintiffs
       lacked standing to bring their causes of actions against defendants. The court explained
       plaintiffs were not a party under the statute. The court also noted the other pending motions
       were rendered moot by its decision on the motions to dismiss.
¶ 19        On May 14, 2014, plaintiffs filed a timely notice of appeal in compliance with Illinois
       Supreme Court Rule 303 (eff. May 30, 2008). Accordingly, this court has jurisdiction of this
       appeal under Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994).

¶ 20                                       II. ANALYSIS
¶ 21      Plaintiffs argue they have standing to challenge the Department’s Office of Mines and
       Minerals’ November 2012 issuance of a surface-mining permit to Mississippi Sand.

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       Specifically, plaintiffs argue they have (1) standing under the supreme court’s decision in
       Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 524 N.E.2d 561 (1988); (2)
       a cause of action under the Administrative Review Law (735 ILCS 5/art. III (West 2012));
       (3) a cause of action for review via a writ of certiorari, if they are not parties under the
       Administrative Review Law; (4) a cause of action in mandamus under the Preservation Act
       (525 ILCS 30/1 et seq. (West 2012)); and (5) a cause of action under the Illinois and United
       States Constitutions for due-process violations during the application process for the
       surface-mining permit. Defendants contend the circuit court’s dismissal was proper.
¶ 22        The standing doctrine seeks to ensure that issues are raised only by those parties with a
       real interest in the outcome of the controversy. Wexler v. Wirtz Corp., 211 Ill. 2d 18, 23, 809
       N.E.2d 1240, 1243 (2004). Under Illinois law, a lack of standing is an affirmative defense,
       and thus the defendants bear the burden to plead and prove a lack of standing. Wexler, 211
       Ill. 2d at 22, 809 N.E.2d at 1243. Where a plaintiff lacks standing, the proceedings must be
       dismissed because the lack of standing negates the plaintiff’s cause of action. Wexler, 211 Ill.
       2d at 22, 809 N.E.2d at 1243.
¶ 23        Defendants raised the issue of standing in the portion of their motions to dismiss brought
       under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2012)). With a
       section 2-619 motion to dismiss, we deem as true all well-pleaded facts, together with all
       reasonable inferences that can be gleaned from the facts. Cooney v. Rossiter, 2012 IL
       113227, ¶ 17, 986 N.E.2d 618. Moreover, courts interpret all of the pleadings and supporting
       documents in the light most favorable to plaintiffs, as they are the nonmoving parties. See
       Cooney, 2012 IL 113227, ¶ 17, 986 N.E.2d 618. This court reviews de novo a section 2-619
       dismissal. Cooney, 2012 IL 113227, ¶ 17, 986 N.E.2d 618.
¶ 24        In this case, plaintiffs raise issues related to the Department defendants’ approval of a
       surface-mining permit for Mississippi Sand. Section 13a of the Mining Act (225 ILCS
       715/13a (West 2012)) provides “[a]ll final administrative decisions of the Department
       hereunder shall be subject to judicial review pursuant to the provisions of the Administrative
       Review Law.” Section 3-102 of the Administrative Review Law (735 ILCS 5/3-102 (West
       2012)) states the following:
                “Article III of this Act shall apply to and govern every action to review judicially a
                final decision of any administrative agency where the Act creating or conferring
                power on such agency, by express reference, adopts the provisions of Article III of
                this Act or its predecessor, the Administrative Review Act. This Article shall be
                known as the ‘Administrative Review Law’. In all such cases, any other statutory,
                equitable or common law mode of review of decisions of administrative agencies
                heretofore available shall not hereafter be employed.”
       As our supreme court has explained, when the Administrative Review Law is applicable, it
       eliminates any other statutory, equitable, or common-law remedies by which administrative
       determinations had previously been reviewed. Marsh v. Illinois Racing Board, 179 Ill. 2d
       488, 493, 689 N.E.2d 1113, 1116 (1997). “Specifically, the legislature designed the Review
       Law ‘to channel into a single procedure the judicial review of the decisions made by
       administrative agencies in particular cases.’ ” Marsh, 179 Ill. 2d at 493, 689 N.E.2d at 1116
       (quoting People ex rel. Naughton v. Swank, 58 Ill. 2d 95, 102, 317 N.E.2d 499, 503 (1974)).
       Moreover, “[t]he purpose of administrative review is ‘to make certain the agency has acted
       within its judicial bounds defined by law, to guard those statutory and constitutional rights

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       guaranteed to one subject to administrative action, and to ascertain whether the record
       supports the order issued.’ ” Marozas v. Board of Fire & Police Commissioners, 222 Ill.
       App. 3d 781, 791, 584 N.E.2d 402, 408-09 (1991) (quoting Edwards v. City of Quincy, 124
       Ill. App. 3d 1004, 1012, 464 N.E.2d 1125, 1131 (1984)). Thus, any due-process claims are
       inherent in an administrative-review action. Marozas, 222 Ill. App. 3d at 791, 584 N.E.2d at
       408.
¶ 25        In their first-amended petition, plaintiffs' due-process, certiorari, and mandamus claims
       were based on the Department defendants' actions during the permit-application process.
       Specifically, as to the mandamus claim, it was included in count IV, which also sought
       declaratory relief and the voidance of the permit based on the Department's handling of the
       permit-application process. In this case, the mandamus claim is clearly part of the
       administrative-review claims. Accordingly, the Administrative Review Law is plaintiffs' only
       avenue of review in this case.
¶ 26        Additionally, we note that, even if petitioners' had separately raised the mandamus claim
       in this case, the trial court's dismissal of it would still be proper. Under section 17 of the
       Preservation Act (525 ILCS 30/17 (West 2012)), plaintiffs can seek only to have the agency
       engage in the evaluation; no other remedy is available. McHenry County Defenders, Inc. v.
       City of Harvard, 384 Ill. App. 3d 265, 281-82, 891 N.E.2d 1017, 1033 (2008). Here, the
       record shows the Office of Mines and Minerals did do the evaluation, and petitioners only
       take issue with the manner in which it was done. Since the evaluation had already been
       completed, petitioners cannot state a cause of action for mandamus, seeking to compel the
       Department to do something it had already done.
¶ 27        In Illinois, a long-standing general rule exists that “administrative review is limited to
       parties of record before the administrative agencies and then only when their rights, duties or
       privileges are adversely affected by the decision.” (Emphasis added.) Board of Education of
       Roxana Community School District No. 1 v. Pollution Control Board, 2013 IL 115473, ¶ 20,
       998 N.E.2d 1256 (hereinafter, Roxana); see also Williams v. Department of Labor, 76 Ill. 2d
       72, 78, 389 N.E.2d 1177, 1179 (1979); Winston v. Zoning Board of Appeals, 407 Ill. 588,
       593, 95 N.E.2d 864, 868 (1950). Moreover, we note the term “party of record” is also used in
       section 3-107(a) of the Administrative Review Law (735 ILCS 5/3-107(a) (West 2012)),
       which specifically requires “the administrative agency and all persons, other than the
       plaintiff, who were parties of record to the proceedings before the administrative agency
       shall be made defendants.” (Emphasis added.) Plaintiffs contend the above rule sets forth the
       requirements for a cause of action under the Administrative Review Law and not standing.
       Regardless of labels, the aforementioned rule is clearly a threshold requirement that plaintiffs
       must satisfy for review under the Administrative Review Law, which, as we explained, is
       plaintiffs’ only means of review.
¶ 28        Plaintiffs argue Greer is the applicable case to determine standing and not the
       long-standing rule. In Greer, 122 Ill. 2d at 492, 524 N.E.2d at 574-75, our supreme court
       found “standing in Illinois requires only some injury in fact to a legally cognizable interest.”
       Specifically, the claimed injury, which may be actual or threatened, must be (1) distinct and
       palpable, (2) fairly traceable to the defendant’s actions, and (3) substantially likely to be
       prevented or redressed by the grant of the requested relief. Greer, 122 Ill. 2d at 492-93, 524
       N.E.2d at 575. Plaintiffs emphasize the standing test in Greer did not contain any “party”
       requirement.

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¶ 29        However, the Greer decision gives no indication it was brought under the Administrative
       Review Law. In Greer, 122 Ill. 2d at 470, 524 N.E.2d at 564, the plaintiffs filed suit against
       the Illinois Housing Development Authority (Housing Authority) for approving mortgage
       financing for a housing-rehabilitation project. They alleged (1) the approval violated the
       Housing Authority’s statutory duty to promote economic heterogeneity and sought a
       declaratory judgment the Housing Authority not proceed with the funding, (2) the Housing
       Authority’s actions did not comply with statutory mandates and were arbitrary, and (3) the
       Housing Authority failed to give any consideration to statutory requirements for economic
       integration; and plaintiffs requested the issuance of a common law writ of certiorari based on
       all of the alleged facts. Greer, 122 Ill. 2d at 485-86, 524 N.E.2d at 571-72. Thus, the facts of
       Greer do not indicate the plaintiffs brought the suit under the Administrative Review Law. In
       fact, in addressing standing, the supreme court referred to the plaintiffs’ suit as a challenge to
       the legality of a governmental action. See Greer, 122 Ill. 2d at 487-88, 524 N.E.2d at 572-73.
       The Greer court never addressed the applicability of the Administrative Review Law.
       Additionally, in the supreme court’s later decision in Glisson v. City of Marion, 188 Ill. 2d
       211, 217, 720 N.E.2d 1034, 1038 (1999), where it applied the standing test set forth in Greer,
       the plaintiff did not file a petition for administrative review. Thus, we agree with the Second
       District that nothing in Greer overruled the general requirement a party seeking review of an
       administrative agency’s decision must have been a party of record to the agency’s
       proceeding. See Helping Others Maintain Environmental Standards v. Bos, 406 Ill. App. 3d
       669, 683, 941 N.E.2d 347, 361 (2010).
¶ 30        Accordingly, the issue is whether plaintiffs were a party of record. Plaintiffs argue they
       were based on the (1) dictionary definition of “party,” (2) fact the Department responded to
       their letters regarding the permit application, and (3) structure of the Mining Act. Defendants
       argue this court should look to the language of the Mining Act, which does not grant
       plaintiffs party status.
¶ 31        Plaintiffs’ first argument is irrelevant. As noted above, the supreme court has used the
       term “parties of record” (Roxana, 2013 IL 115473, ¶ 20, 998 N.E.2d 1256), and so does the
       Administrative Review Law (735 ILCS 5/3-107(a) (West 2012)). Thus, whether plaintiffs are
       parties under a general definition does not determine whether they are “parties of record.”
¶ 32        Plaintiffs next argue they are parties of record because the Department responded to their
       letters and those responses were included in the administrative record submitted by the
       Department in this case. However, plaintiffs were not the only ones that submitted letters to
       the Department regarding this permit. In March 2012, a group of dozens of citizens sent
       Miller a letter voicing concerns about Mississippi Sand’s permit application, and Miller
       responded. While plaintiffs attached those documents to their first-amended complaint, the
       administrative record does not contain those letters. The administrative record also lacks the
       letters sent by plaintiffs Sierra Club and Openlands. Since the administrative record lacks the
       complaint letters and at least one response to the complaint letters, we disagree with plaintiffs
       the mere fact the responses by the Department’s Office of Mines and Minerals to plaintiffs’
       letters were included in the administrative record makes them parties of record in Mississippi
       Sand’s permit-application proceedings.
¶ 33        Last, we turn to the language of the Mining Act. Under sections 5(f) and 17(f)(3) of the
       Mining Act (225 ILCS 715/5(f) (West 2010); 225 ILCS 715/17(f)(3) (West 2012)), a public
       hearing on a permit application can only take place when the county board of a county to be

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       affected under a proposed permit has requested a public hearing. As in this case, when a
       public hearing is not requested by said county board, then sections 5(g) and 17(f)(3) of the
       Mining Act (225 ILCS 715/5(g) (West 2010); 225 ILCS 715/17(f)(3) (West 2012)) allow
       only written comment from the county board. In support of their argument, plaintiffs cite the
       following language from section 5(f) (225 ILCS 715/5(f) (West 2010)): “procedural rules
       shall include provisions for reasonable notice to all parties, including the applicant, and
       reasonable opportunity for all parties to respond by oral or written testimony, or both, to
       statements and objections made at the public hearing. County boards and the public shall
       present their recommendations at these hearings.” However, as stated, this case did not
       involve a public hearing, and thus the aforementioned language does not apply here. We find
       the language of the Mining Act provides that, when a county board has not requested a public
       hearing, the general public has no statutory right to comment on the permit-application
       process. Moreover, we decline to infer the public has a right to participate in
       permit-application proceedings under the Mining Act where another permit-application
       statute expressly allows for such participation and the Mining Act does not. See 225 ILCS
       720/2.04(d) (West 2012). When the affected county board does not request a public hearing
       under section 5(f), the legislature did not provide for the involvement of any other parties
       besides the affected county board in the permit-application process. Accordingly, under the
       language of the Mining Act, plaintiffs are not parties of record to Mississippi Sand’s
       permit-application process.
¶ 34       Plaintiffs further argue case law demonstrates that party status is not limited to just those
       entities expressly named as parties. In support of their argument, they cite this court’s
       decision in Kemp-Golden v. Department of Children & Family Services, 281 Ill. App. 3d
       869, 667 N.E.2d 688 (1996), claiming an analysis of the plaintiff’s participation in that case
       would have been unnecessary if one could not be a party unless the statute explicitly
       provided for party status. In Kemp-Golden, 281 Ill. App. 3d at 877, 667 N.E.2d at 693, this
       court rejected several of the plaintiff’s arguments, including her claim “her participation in
       the administrative hearing amounted to de facto intervention to which no one objected and,
       consequently, vested her with party status.” The plaintiff had filed the report of abuse and
       testified as a witness at the administrative hearing, as she was required to do by statute (325
       ILCS 5/10 (West 1994)). Kemp-Golden, 281 Ill. App. 3d at 877, 667 N.E.2d at 693-94. This
       court was simply addressing one of the plaintiff’s arguments when it addressed the plaintiff’s
       role at the administrative hearing. Even if the extent of participation in the administrative
       process was a consideration in determining party status, the plaintiff’s participation in
       Kemp-Golden was significantly greater than the plaintiffs’ roles in this case, and thus it does
       not support plaintiffs’ position.
¶ 35       Plaintiffs also cite Williams, noting that even when a person is not explicitly granted a
       role in the proceeding, the person may still be a party. There, in March 1977, the Board of
       Review of the Department of Labor found the claimant was ineligible for unemployment
       benefits. Williams, 76 Ill. 2d at 75, 389 N.E.2d at 1178. By way of a supplemental
       proceeding that began in November 1977, the Board of Review of the Department of Labor
       granted the claimant’s attorney’s request for approval of his attorney fees at a reduced
       amount. Williams, 76 Ill. 2d at 75-76, 389 N.E.2d at 1178. Our supreme court noted the
       claimant was clearly a party to the Board’s decision that denied him unemployment benefits
       and found he was also a party to its decision that limited the fee of his attorney. Williams, 76


                                                   -9-
       Ill. 2d at 79, 389 N.E.2d at 1180. This case cuts against plaintiffs’ position because it shows
       the importance of being a named party in the initial proceedings.
¶ 36        Since plaintiffs were not parties to the administrative decision that they seek to review,
       we find plaintiffs cannot seek review of the Department’s decision to approve Mississippi
       Sand’s surface-mining permit. Accordingly, the trial court properly dismissed plaintiffs’ first
       amended petition for review.

¶ 37                                        III. CONCLUSION
¶ 38       For the reasons stated, we affirm the Sangamon County circuit court’s dismissal of
       plaintiffs’ first amended petition for review.

¶ 39      Affirmed.




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