                             Illinois Official Reports

                                    Appellate Court



             Smith v. Department of Natural Resources, 2015 IL App (5th) 140583



Appellate Court         MARIE SMITH, MARK DONHAM, VITO MASTRANGELO,
Caption                 SAM STEARNS, TABITHA TRIPP, NATHAN CZUBA,
                        ANNETTE McMICHAEL, and SOUTHERN ILLINOISANS
                        AGAINST FRACTURING OUR ENVIRONMENT (SAFE), an
                        Illinois Not-for-Profit Corporation, Plaintiffs-Appellants, v. 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, Defendants-Appellees.


District & No.          Fifth District
                        Docket No. 5-14-0583



Filed                   July 10, 2015



Decision Under          Appeal from the Circuit Court of Madison County, No. 14-CH-711;
Review                  the Hon. Barbara L. Crowder, Judge, presiding.



Judgment                Affirmed.



Counsel on              Penni S. Livingston, of Livingston Law Firm, of Fairview Heights,
Appeal                  Natalie Laczek, of Riverside, and Vito A. Mastrangelo, of Mt.
                        Vernon, for appellants.

                        Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro,
                        Solicitor General, and Brett E. Legner, Deputy Solicitor General, of
                        counsel), for appellees.
     Panel                    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 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 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


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     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 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
     (id.); (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 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.



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¶ 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).
¶ 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 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

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       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 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 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 requisite elements for the issuance of a preliminary injunction.


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¶ 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 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 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)

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       (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 (id.) 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 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. Id. at 431. 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 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.

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¶ 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.




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