                          NO. 4-10-0704             Filed 12/23/10

                      IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT


CLINTON LANDFILL, INC.,                   )    Appeal from
          Plaintiff-Appellant,            )    Circuit Court of
          v.                              )    Piatt County
MAHOMET VALLEY WATER AUTHORITY,           )    No. 09CH55
          Defendant-Appellee.             )
                                          )    Honorable
                                          )    John P. Shonkwiler,
                                          )    Judge Presiding.


           JUSTICE MYERSCOUGH delivered the judgment of the court,

with opinion.

           Justices Steigmann and Pope concurred in the judgment

and opinion.

                              OPINION

           Plaintiff, Clinton Landfill, Inc., is in the process of

seeking the necessary permits for a chemical-waste landfill.       In

July 2010, plaintiff filed a motion for a preliminary injunction

against defendant, Mahomet Valley Water Authority.     Plaintiff
sought to enjoin defendant from contesting or being involved in

plaintiff's permitting process on the basis that defendant lacked

the authority to do so.   The trial court denied plaintiff's

motion for a preliminary injunction.

           Plaintiff appeals, arguing it established all the

requirements for a preliminary injunction.     We disagree and

affirm.   Plaintiff is essentially seeking to bar defendant, a

governmental entity, from expressing an opinion to another
governmental entity regarding a matter adverse to its

stewardship.    This it cannot do.

                            I. BACKGROUND

            Plaintiff operates Clinton Landfill No. 3, which is

located in an area known generally as the Mahomet Valley Water

District.    Defendant is a water authority established pursuant to

the Water Authorities Act (Act) (70 ILCS 3715/1 through 27 (West

2008)).   The Act provides for the incorporation of a contiguous

territory as a water authority.      70 ILCS 3715/1 (West 2008).    A

water authority is governed by a board of three trustees.      70

ILCS 3715/3 (West 2008).    The Act details the powers of the

board, which include inspecting wells, regulating the use of

water through a period of actual or threatened shortage,

supplementing the water supply, and levying and collecting a

general tax.    See 70 ILCS 3715/6 (West 2008).    A water authority

also has additional powers with respect to any area acquired for

reservoir purposes.    70 ILCS 3715/14 (West 2008).    The board may

select "an engineer, an attorney[,] and such other employees as

they deem expedient who shall serve during the pleasure of the

board."   70 ILCS 3715/4 (West 2008).

            At some unspecified time, plaintiff began the process

of obtaining permits for a chemical-waste landfill through the

Illinois Environmental Protection Agency (IEPA) and the United

States Environmental Protection Agency (USEPA).      The chemical-

waste landfill would be located within a portion of Clinton

Landfill No. 3.


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          In November 2009, defendant held a special meeting,

during which the trustees voted to "become involved in contesting

[plaintiff's] permit application" and to retain counsel.    In

December 2009, counsel for defendant asked the IEPA to extend the

deadline for the filing of public comment.    In January 2010,

counsel for defendant made requests, pursuant to the Freedom of

Information Act (5 U.S.C. §552 (2006))), upon the IEPA and USEPA.

Defendant also hired a consultant to review data and evaluate

whether defendant should participate in plaintiff's pending

permit process.

          In December 2009, plaintiff filed suit against

defendant.    In March 2010, after the initial complaint was

dismissed, plaintiff filed a first amended complaint against

defendant, seeking (1) a declaration that defendant lacked the

authority to contest plaintiff's permit applications or be

involved in plaintiff's permitting process and (2) a preliminary

and permanent injunction barring defendant from contesting

plaintiff's permit applications or being involved in plaintiff's

permitting process.    Plaintiff alleged defendant was a non-home-

rule entity that possessed only those powers specifically

conveyed by the constitution or by statute.    Plaintiff alleged

neither the constitution nor the Act vested defendant with the

power to expend funds to oppose the chemical-waste landfill or

engage in the permitting process.    (Plaintiff ultimately conceded

defendant had the statutory authority to hire attorneys and

engineers.)


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            Although plaintiff had obtained the IEPA permit in

January 2010, the USEPA permitting process was still ongoing.     In

fact, the IEPA permit specifically noted that plaintiff would be

able to accept polychlorinated biphenyl (PCB) wastes if the USEPA

"permits the [chemical-waste unit] as a 'chemical waste

landfill.'"

            In April 2010, plaintiff filed a motion for summary

judgment.    Plaintiff asserted defendant lacked the authority to

oppose the chemical-waste landfill or to engage in the permitting

process because, as a non-home-rule entity, defendant only had

those powers granted to it by the constitution or by statute.

Following a hearing, the trial court denied plaintiff's motion on

the basis that questions of fact remained.

            On July 13, 2010, plaintiff filed a motion to

reconsider the denial of the motion for summary judgment and a

motion for a preliminary injunction.     In the motion for a

preliminary injunction, plaintiff sought to preliminarily enjoin

defendant from (1) filing written public comment with the USEPA,

although the time for public comment had not yet commenced; (2)

offering oral public comment at the as-yet unscheduled USEPA

hearing; (3) seeking leave to intervene in the USEPA proceedings;

and (4) attempting to appeal an eventual grant of a permit.

            Plaintiff alleged it had a right to seek a permit

without unlawful interference.    Plaintiff also alleged it had no

adequate remedy at law and would suffer irreparable harm if

defendant participated in the permitting process.     Plaintiff


                                 - 4 -
claimed that defendant, as a local governmental unit, might

unduly influence the USEPA.   Plaintiff asserted it was likely to

succeed on the merits and that the benefits of granting the

preliminary injunction outweighed any injury to defendant.

Plaintiff sought the preliminary injunction until such time as a

hearing on the merits of the amended complaint could be heard.

          In its response in opposition to the motion for a

preliminary injunction, defendant noted that on July 22, 2010,

its retained engineer, KPRG and Associates, Inc., submitted a

report to the USEPA identifying a number of "serious concerns and

failures with [plaintiff's] permit application."    Specifically,

the report noted that "domestic and municipal water supply wells

that produce water from both the glacial sediments and Mahomet

Aquifer establish that human[s] are potential receptors of

contaminants released from the Clinton Landfill."   (At the

hearing, the parties agreed that the time for public comment had

not yet commenced when defendant submitted the report.)    In its

response, defendant also argued (1) plaintiff had no right that

needed protection; (2) plaintiff would not suffer any harm absent

an injunction; (3) plaintiff had an adequate remedy at law,

namely the trial; (4) plaintiff was unlikely to succeed on the

merits because defendant had the statutory power to submit public

comment; and (5) the benefits of denying the preliminary

injunction outweighed any injury to plaintiff.   Defendant further

asserted it was charged with protecting the water quality and the

water supply for the Mahomet Valley and was statutorily mandated


                               - 5 -
to ensure an adequate drinking supply.

           On August 19, 2010, the trial court held the hearing on

the motion for a preliminary injunction.    During the hearing, the

court noted defendant had filed a report with the USEPA but

agreed with plaintiff, without explanation, that the case was not

moot.   Also during the hearing, the court expressed concern that

plaintiff's request was broad and asked plaintiff about its

irreparable harm, noting that plaintiff could mitigate

defendant's actions by having its own engineer refute defendant's

engineer's report.   The court ultimately concluded:

           "Counsel, I just do not see the extreme

           existence of an emergency in this case.   So

           on that basis, I know that you don't have to

           prove that you are entitled to the relief you

           seek in this, but I still--the court believes

           that it's such an extraordinary remedy.   I

           think what's requested is so broad, that the

           court is going to deny your motion for

           injunctive relief."

           This interlocutory appeal followed.

                             II. ANALYSIS

           This court initially notes that the case was set for

trial on November 1, 2010.    However, according to the trial

court's docket entry, the court, on its own motion, vacated that

setting.   A new trial date has not been set.    See N B D Highland

Park Bank, N.A. v. Wien, 251 Ill. App. 3d 512, 520, 622 N.E.2d


                                 - 6 -
123, 130 (1993) (court may take judicial notice of public

documents).   Therefore, the trial on the merits of plaintiff's

amended complaint has not yet occurred.

          On appeal, plaintiff argues it was entitled to a

preliminary injunction because it established all of the

requirements for a preliminary injunction.     Defendant asserts the

claim is not ripe and that plaintiff did not demonstrate the

factors required for a preliminary injunction.

     A. Standard of Review Is De Novo for Questions of Law
             and Otherwise Is an Abuse of Discretion

          A preliminary injunction preserves the status quo until

the merits of the case are decided.      Citadel Investment Group,

LLC v. Teza Technologies LLC, 398 Ill. App. 3d 724, 733, 924

N.E.2d 95, 103 (2010).    The remedy is an extraordinary one and

should be granted only in situations of extreme emergency or

where serious harm would result if the preliminary injunction was

not issued.     In re Marriage of Slomka, 397 Ill. App. 3d 137, 143,

922 N.E.2d 36, 40 (2009).    At the preliminary-injunction stage of

proceedings, "controverted facts on the merits of the case are

not decided."     Hartlein v. Illinois Power Co., 151 Ill. 2d 142,

156, 601 N.E.2d 720, 727 (1992).

          To obtain a preliminary injunction, the moving party

must show "(1) a clearly ascertained right in need of protection,

(2) irreparable injury in the absence of an injunction, (3) no

adequate remedy at law, and (4) a likelihood of success on the

merits of the case."     Mohanty v. St. John Heart Clinic, S.C., 225

Ill. 2d 52, 62, 866 N.E.2d 85, 91 (2006).     The trial court may

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also deny a preliminary injunction where the balance of hardships

does not favor the moving party.    Bollweg v. Richard Marker

Associates, Inc., 353 Ill. App. 3d 560, 572, 818 N.E.2d 873, 883

(2004).   The party seeking a preliminary injunction must raise a

fair question as to each element required to obtain the injunct-

ion.   See People ex rel. Klaeren v. Village of Lisle, 202 Ill. 2d

164, 177, 781 N.E.2d 223, 230 (2002) ("[o]n appeal, we examine

only whether the party seeking the injunction has demonstrated a

prima facie case that there is a fair question concerning the

existence of the claimed rights"), superceded by statute on other

grounds as stated in Dunlap v. Village of Schaumburg, 394 Ill.

App. 3d 629, 639, 915 N.E.2d 890, 899 (2009).   "In balancing the

equities, the court should also consider the effect of the

injunction on the public."    Kalbfleisch v. Columbia Community

Unit School District Unit No. 4, 396 Ill. App. 3d 1105, 1119, 920

N.E.2d 651, 664 (2009).

          This court generally reviews a trial court's grant or

denial of a preliminary injunction for an abuse of discretion.

Lifetec, Inc. v. Edwards, 377 Ill. App. 3d 260, 268, 880 N.E.2d

188, 195 (2007).   "A trial court abuses its discretion only when

its ruling is arbitrary, fanciful, or unreasonable, or when no

reasonable person would adopt the court's view."    People ex rel.

Madigan v. Petco Petroleum Corp., 363 Ill. App. 3d 613, 634, 841

N.E.2d 1065, 1082 (2006).    Where, however, a court does not make

any factual findings and rules on a question of law, our review

is de novo. Mohanty, 225 Ill. 2d at 63, 866 N.E.2d at 91 (stating


                                - 8 -
that "whether injunctive relief should issue to enforce a

restrictive covenant not to compete in an employment contract

depends upon the validity of the covenant, the determination of

which is a question of law" and reviewing that determination de

novo).

         B. Trial Court Did Not Err or Abuse Its Discretion
         in Denying the Motion for a Preliminary Injunction

           The trial court did not err by denying plaintiff's

motion for a preliminary injunction.   Plaintiff failed to raise a

fair question (1) of the likelihood of success on the merits, (2)

of a clearly ascertained right in need of protection, (3) of

irreparable harm, or (4) that the balance of hardships favored

plaintiff.

           First, plaintiff did not raise a fair question that

plaintiff was likely to succeed on the merits.   The parties agree

defendant is a non-home-rule unit of local government.   As a non-

home-rule unit, defendant possesses only those powers "expressly

granted, powers incident to those expressly granted, and powers

indispensable to the accomplishment of the declared objects and

purposes of the municipal corporation."   Pesticide Public Policy

Foundation v. Village of Wauconda, 117 Ill. 2d 107, 112, 510

N.E.2d 858, 861 (1987) (citing Consumers Co. v. City of Chicago,

313 Ill. 408, 411-12, 145 N.E.114, 116 (1924), 1 J. Dillon,

Municipal Corporations §237 (5th ed. 1911)).

           Under the Act, defendant is essentially charged with

regulating and maintaining the water supply.   See, e.g., 70 ILCS

3715/6 (West 2008) (setting forth the powers of the board,

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including inspecting wells; requiring data concerning the supply,

withdrawal, and use of water; regulating the use of water during

a shortage; and supplementing the existing water supply).   The

powers incident to doing so necessarily include, among other

things, expressing an opinion about activities that may affect

the area's water supply.   In fact, at oral arguments, counsel for

plaintiff conceded finding no authority for bringing such a

claim.   This is not surprising, given that such claim is without

merit.

          Second, this court finds, as a matter of law, that

plaintiff did not raise a fair question whether it had a clearly

ascertainable right to prevent allegedly unauthorized entities

from making public comment or otherwise becoming involved in a

USEPA permit procedure.

          Third, the trial court did not abuse its discretion to

the extent it found that plaintiff failed to make a fair showing

of irreparable harm.   See, e.g., Kalbfleisch, 396 Ill. App. 3d at

1116, 920 N.E.2d at 661 (finding the trial court did not abuse

its discretion by finding irreparable harm).   Some courts have

held that irreparable harm exists only where a party has no

adequate remedy at law.    See, e.g., Hensley Construction, LLC v.

Pulte Home Corp., 399 Ill. App. 3d 184, 190, 926 N.E.2d 965, 971

(2010) ("irreparable harm[] 'occurs only where the remedy at law

is inadequate'") (quoting Franz v. Calaco Development Corp., 322

Ill. App. 3d 941, 947, 751 N.E.2d 1250, 1256 (2001)).   Such

approach appears to combine the irreparable-harm factor with the


                               - 10 -
no-adequate-remedy-at-law factor.

          This court concludes that those factors are separate.

See, e.g., Bollweg, 353 Ill. App. 3d at 577, 818 N.E.2d at 887

(noting a party need not show an injury beyond repair or

compensation in damages; transgressions of a continuing nature

may also demonstrate irreparable injury).   For instance, in

Slomka, 397 Ill. App. 3d 137, 922 N.E.2d 36, the appellate court

examined the irreparable-harm factor and inadequate-remedy-at-law

factor separately.   In its examination of the irreparable-harm

factor, the appellate court found the petitioner failed to allege

facts supporting irreparable harm and found the case did not

represent the type of extreme emergency situation that posed

serious harm.   Slomka, 397 Ill. App. 3d at 144-45, 922 N.E.2d at

42 (involving father's attempt to obtain a preliminary injunction

to bar the mother from taking the children to therapy).

          Similarly here, plaintiff alleged only the possibility

that defendant, as a unit of government, might unduly influence

the USEPA in the permit process.    The alleged harm articulated by

plaintiff does not represent the type of extreme emergency

situation that poses serous harm.   "A preliminary injunction is

an extraordinary remedy and is generally employed only in matters

of great injury, and then only with the utmost care and caution."

Charles P. Young Co. v. Leuser, 137 Ill. App. 3d 1044, 1052-53,

485 N.E.2d 541, 547 (1985).

          Finally, this court concludes the trial court did not

abuse its discretion by finding the balance of the hardships did


                              - 11 -
not favor plaintiff and plaintiff did not make a fair showing of

irreparable harm. See, e.g., Bollweg, 353 Ill. App. 3d at 572,

818 N.E.2d at 883 (applying the abuse-of-discretion standard

where the trial court heard conflicting expert testimony and

balanced the benefits of granting the preliminary injunction

against the hardship the defendant might suffer as a result);

Kalbfleisch, 396 Ill. App. 3d at 1116, 920 N.E.2d at 661

(reviewing for an abuse of discretion the trial court's finding

on irreparable harm).

           The balance of hardships does not favor granting the

preliminary injunction.   The potential harm of not allowing

defendant to participate, if so authorized, outweighs the

potential harm to plaintiff if defendant does participate in the

permit process.   Plaintiff can respond to any issues or

information defendant may raise before the USEPA.   As the parties

noted, the time for public comment has not yet commenced,

although defendant had submitted a report to the USEPA.    The

merits of the case will be decided at trial.   Defendant's

potential interest in protecting the water supply outweighs

plaintiff's interest in preventing a governmental entity from

commenting on or becoming involved in plaintiff's permitting

process.   Moreover, the effect an injunction would have on the

public also favors the denial of plaintiff's motion for a

preliminary injunction.   Consequently, the court did not abuse

its discretion by denying the preliminary injunction here.




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                           III. CONCLUSION

            For the reasons stated, we affirm the trial court's

judgment.

            Affirmed.




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