Ill. SC: Provision doesn't allow for judicial review of terms of mining permits

By Jessica M. Karmasek | Feb 16, 2012


SPRINGFIELD, Ill. (Legal Newsline) - In a unanimous ruling earlier this month, the Illinois Supreme Court said mining act permits are not subject to judicial review outside of the Administrative Review Law.

The Court filed its opinion Feb. 2.

The plaintiff, Citizens Opposing Pollution, brought a six-count amended complaint in Clinton County Circuit Court against defendants ExxonMobil Coal USA, d/b/a Monterey Coal Company, and the Illinois Environmental Protection Agency.

The not-for-profit citizens group alleged violations of the state's Mining and Water Use acts, resulting from a coal mine reclamation at Monterey's Mine No. 2, near Albers, Ill.

The circuit court dismissed the group's amended complaint with prejudice.

An appellate court later reversed the dismissal as to all five counts directed against Monterey, but modified the circuit court's order dismissing the sole count against the IEPA to be a dismissal without prejudice.

At issue is whether a citizen suit can brought under a section of Illinois' Surface Coal Mining Land Conservation and Reclamation Act to challenge site conditions at a coal mine reclaimed in accordance with permits previously approved by the state's Department of Natural Resources.

Also at issue is whether the state's Water Use Act allows a private right of action to challenge activity authorized by a mining permit.

The Court, in its Feb. 2 opinion, affirmed in part and reversed in part the judgment of the appellate court and affirmed the circuit court's order.

Justice Mary Jane Theis authored the Court's 17-page ruling.

The state's high court said it agreed with the circuit court that the citizen suit provision of the Mining Act, Section 8.05(a) -- read in light of the administrative review provision, Section 8.10 -- requires that the administrative review process is the "exclusive route" for the circuit court's review of the terms of a mining permit issued by the IDNR.

However, an action to compel compliance with the Mining Act for nonpermitted activity, or to enforce compliance with the terms of a permit, may be brought by way of an original action in the circuit court under section 8.05(a), the Court noted.

"Plaintiff does not challenge in its amended complaint Monterey's compliance with any provision contained in the revised permits issued by IDNR. Instead, plaintiff attacks the terms of those permits under which the reclamation work was completed as not complying with the Mining Act," Theis wrote.

"As previously recognized, a final administrative decision by IDNR authorizing a mining permit is a final administrative decision of the department that is subject to judicial review pursuant to the Administrative Review Law."

Section 3-103 of the Administrative Review Law provides that "(e)very action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected by the decision."

Section 3-102 of the law provides that "(u)nless review is sought of an administrative decision within the time and in the manner herein provided, the parties to the proceeding before the administrative agency shall be barred from obtaining judicial review of such administrative decision."

Don Langenhorst, who founded the citizens group in May 2008, did not seek timely judicial review of the provisions of the revised permits after they were approved in 2004, the Court said.

The group, therefore, cannot do so now under Section 8.05(a), the Court said.

The group also asserted that Section 8.10 does not preclude it from bringing its amended complaint under Section 8.05(a) because the "except that" language contained in the second clause of Section 8.10 authorizes a citizen suit to challenge permitted activity whenever site conditions do not comply with the Mining Act.

"We disagree and construe the second clause of section 8.10 as allowing a citizen suit under section 8.05(a), such as to enforce the provisions of a permit, or to challenge nonpermitted activity, without being impaired by any of the requirements of the Administrative Review Law," Theis wrote.

"Plaintiff's construction of section 8.10 would eviscerate and render meaningless the 'shall' provision contained in the first clause of the statute by making adherence to the Administrative Review Law entirely optional and nonbinding in the case of a final permit determination by IDNR.

"This interpretation would be inconsistent with the Administrative Review Law, which specifically requires prompt judicial review of such final administrative decisions."

The Court explained that its construction of the two sections is also supported by the "realities" of the mining permit process and judicial review of such regulatory decisions.

"IDNR's authority in the permit process, which the Legislature specifically delegated to the department, would be undermined if we were to interpret Section 8.05(a) as allowing a party to file an original cause of action in the circuit court challenging the terms of a mining permit," Theis wrote.

"Plaintiff's suggested construction of the statute would require the circuit court to determine such highly regulated mining operation and reclamation issues without an administrative record to review."

The plaintiff's construction of the statute would also impact legitimate reliance by a permittee, creating "significant uncertainty" by allowing the terms of a permit to be reopened and reconsidered at any time -- even years after a reclamation project has been completed in accordance with a permit, the Court said.

"We decline to conclude that the Legislature intended such an absurd result in enacting Section 8.05(a), which would not only call into question the finality of mining permit decisions throughout Illinois, but would undermine the role of IDNR in the permit process," Theis wrote.

The Court noted that the group's argument that Section 8.10 does not apply -- because the revised permits expired more than two years before it filed its original complaint -- does not change its determination.

"We find the trial court properly dismissed counts I through V of plaintiff's amended complaint with prejudice because those counts constitute a challenge to the provisions of the revised permits authorized by IDNR and could not be brought under Section 8.05(a) of the Mining Act," Theis wrote.

As to whether the appellate court erred in reversing the dismissal of the sixth count of the amended complaint against Monterey, the Court said it found "no statutory basis" to conclude the Water Use Act allows a private right of action to challenge conduct that is "specifically mandated" by the terms of a permit authorized by the IDNR.

The act states that it is in the public interest to better manage and conserve water, to establish a mechanism for restricting withdrawals of groundwater in emergencies, and to provide public notice of planned substantial water withdrawals from new points before water is withdrawn.

The group alleged in the sixth count of their amended complaint that Monterey failed to follow the rule of reasonable use under a section of the act, and sought injunctive relief.

"Plaintiff therefore seeks the same injunctive relief in count VI that we have already determined in the other five counts constitutes an attack on the terms of the permits that is not allowed under Section 8.05(a) of the Mining Act," Theis wrote.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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