Glisson v. City of Marion

720 N.E.2d 1034, 188 Ill. 2d 211, 242 Ill. Dec. 79, 49 ERC (BNA) 1708, 1999 Ill. LEXIS 979
CourtIllinois Supreme Court
DecidedOctober 21, 1999
Docket86160
StatusPublished
Cited by242 cases

This text of 720 N.E.2d 1034 (Glisson v. City of Marion) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Glisson v. City of Marion, 720 N.E.2d 1034, 188 Ill. 2d 211, 242 Ill. Dec. 79, 49 ERC (BNA) 1708, 1999 Ill. LEXIS 979 (Ill. 1999).

Opinions

JUSTICE BILANDIC

delivered the opinion of the court:

Plaintiff, Joseph M. Glisson, filed a complaint for declaratory and injunctive relief in the circuit court of Williamson County against defendants, the City of Marion, Illinois, and its mayor, Robert Butler. Plaintiffs complaint sought a declaration that defendants’ construction of a dam and reservoir on Sugar Creek, located in Williamson and Johnson Counties of Illinois, violates the Illinois Endangered Species Protection Act (520 ILCS 10/1 et seq. (West 1998)). The complaint alleged, inter alla, that the project will destroy the habitat for two species that Illinois lists as threatened and endangered, resulting in the elimination of those species from the area in violation of the Act. Plaintiff also sought to enjoin defendants from constructing such a project on Sugar Creek. The circuit court granted defendants’ motion to dismiss plaintiffs complaint for lack of standing. The appellate court reversed, holding that plaintiff has standing to pursue an action against defendants. 297 Ill. App. 3d 841. Defendants filed a petition for leave to appeal, which this court allowed. 177 Ill. 2d R. 315. We also allowed the Sierra Club, Defenders of Wildlife, and the Environmental Law and Policy Center of the Midwest leave to file a joint brief as amici curiae in support of plaintiff. 155 Ill. 2d R. 345. For the reasons that follow, we reverse the judgment of the appellate court and conclude that plaintiff lacks standing to bring this action against defendants.

BACKGROUND

The City of Marion has a water supply problem. In the past, the City has drawn most of its water from Marion City Lake. The City’s requirement of 1.7 million gallons per day of water far exceeds Marion City Lake’s capacity of 1.1 million gallons per day. Furthermore, the raw water from Marion City Lake is of poor quality, requiring substantial chemical treatment to render it suitable for human consumption. The City proposed to solve its shortage of water by constructing a dam and reservoir on Sugar Creek, located approximately seven miles southeast of Marion. The result would be a lake that is approximately 2,500 feet wide and 20,000 feet long, and a reservoir that is capable of supplying 8.9 million gallons of water per day.

Because Sugar Creek is a navigable water of the United States, the City was required to obtain a permit pursuant to section 404 of the Clean Water Act of 1977 (33 U.S.C. § 1344 (1988)), which requires anyone seeking to discharge dredged or fill materials into the navigable waters of the United States to obtain a permit from the United States Army Corps of Engineers (Corps). In 1989, the City submitted an application to the Corps for a permit to construct the dam and reservoir on Sugar Creek.

The Corps prepared an environmental assessment of the project pursuant to the National Environmental Policy Act (NEPA) and its related regulations. 42 U.S.C. § 4332(2)(C) (1994); 40 C.ER § 1501.4 (1998). Copies of that assessment were provided to various federal and state agencies, including the Illinois Department of Conservation (Department). The Department recommended that the City enter into formal consultation with the Department pursuant to the provisions of the Illinois Endangered Species Protection Act (520 ILCS 10/11(b) (West 1998)). The City subsequently met with the Department to discuss the potential impact of the construction project on threatened and endangered species in the project area. The Department later concluded that the City had completed the consultation process and that “[n]o additional discussions regarding endangered and threatened species” were required before the project could begin. The Corps concluded that the proposed project would create no significant environmental impact and, therefore, that no environmental impact statement was required. Thus, the Corps issued a permit to the City.

A group of plaintiffs filed suit in federal district court challenging the issuance of the permit. The district court determined that the permit was not properly issued because the Corps had not prepared an environmental impact statement pursuant to NEPA (42 U.S.C. § 4332(2)(C) (1994)) before issuing the permit. Simmons v. United States Army Corps of Engineers, No. 91— 4188 — JLF (S.D. Ill. June 25, 1992) (Simmons I). The district court thus vacated the permit.

The Corps subsequently prepared both an environmental impact statement and a supplemental environmental impact statement, which concluded that the project would be “environmentally sustainable.” The Corps then issued a second permit to the City. A group of plaintiffs challenged the issuance of the second permit. The district court ruled against the plaintiffs (Simmons v. United States Army Corps of Engineers, No. 96— 4246 — JPG (S.D. Ill. December 18, 1996)), and they appealed. The United States Court of Appeals for the Seventh Circuit held that the Corps improperly issued the second permit because the Corps failed to comply with its duty under NEPA to consider all reasonable alternatives in the environmental impact statement. Simmons v. United States Army Corps of Engineers, 120 F.3d 664 (7th Cir. 1997) (Simmons II). The Court of Appeals therefore reversed the district court in Simmons II and remanded the cause to the district court with directions to vacate the second permit issued by the Corps.

While the litigation challenging the second permit was pending before the Court of Appeals, plaintiff in this case filed a complaint for declaratory and injunctive relief. Plaintiff claimed that construction of the dam and reservoir violates sections 3 and 11(b) of the Illinois Endangered Species Protection Act (520 ILCS 10/3, 11(b) (West 1998)) because it will destroy the essential habitat of two species listed as threatened and endangered by Illinois, namely the least brook lamprey and the Indiana crayfish, and thereby will eliminate the species from the area. Plaintiff further claimed that he would suffer “intense harm” as a result of the dam and reservoir project because he is a naturalist who enjoys and uses Sugar Creek for “food gathering, recreation, spiritual, and educational activities,” and because his lifestyle is “intertwined with and dependent on the natural world in general and Sugar Creek.” Plaintiff requested that the circuit court (1) enter an order declaring that the dam and reservoir project violates the Illinois Endangered Species Protection Act, and (2) enjoin defendants from constructing the dam and reservoir.

Defendants filed a motion to dismiss plaintiffs complaint pursuant to section 2 — 619 of the Code of Civil Procedure (735 ILCS 5/2 — 619 (West 1998)), arguing, inter alla, that plaintiff lacks standing to sue under the Illinois Endangered Species Protection Act.

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Cite This Page — Counsel Stack

Bluebook (online)
720 N.E.2d 1034, 188 Ill. 2d 211, 242 Ill. Dec. 79, 49 ERC (BNA) 1708, 1999 Ill. LEXIS 979, Counsel Stack Legal Research, https://law.counselstack.com/opinion/glisson-v-city-of-marion-ill-1999.