Sierra Club v. Kenney

412 N.E.2d 970, 90 Ill. App. 3d 230, 45 Ill. Dec. 388, 1980 Ill. App. LEXIS 3915
Appellate Court of Illinois·Decided November 14, 1980·No. No. 15977·Published·Cited by 2 cases

Opinions

Mr. JUSTICE CRAVEN

delivered the opinion of the court:

The defendants, the Illinois Department of Conservation and its director, David Kenney, invited bids from commercial loggers for the cutting, logging and harvesting of 2,063 trees located on a 345-acre tract in Pere Marquette State Park, which was the site of a fire in 1974. This action was brought to challenge the legality of defendants’ plan to selectively harvest these trees and requested that defendants be permanently enjoined from cutting, logging and harvesting trees in State parks. The trial court denied the injunction as requested, but did enjoin defendants from proceeding with the present plan of allowing commercial loggers to cut the trees until certain court-imposed conditions were met.

Dr. James Fralish, an expert on behalf of plaintiffs, testified that the subject area is presently in a state of recovery, with many of the trees killed in the fire sprouting from the base to heights of 6 to 8 feet. Fire is an ecological factor in a forest, as it stimulates the growth of a forest by releasing needed nutrients. Dead, standing trees are natural to a forest area and comprise the wildlife habitat for woodpeckers and other birds. A commercial timber harvest refers to a cutting of trees for a profit. The removal of trees disrupts an area’s natural character. The use of heavy equipment during a logging operation tears up the soil, causes erosion and damages young vegetation. In Dr. Fralish’s opinion, defendants’ proposed plan for Pere Marquette State Park constitutes a commercial timber harvest.

Defendant Kenney testified that the purposes of the proposed cutting were salvage, sanitation, safety and improvement by hastening the regenerative processes. The Department does not have the personnel to perform the work, and does expect to recover the cost of removing the trees by selling them. Allen Mickelson, State forester, characterized the plan as one to improve the forest through rehabilitation. The primary uses of the area in question are recreational pursuits, including hiking, horseback riding, nature study and hunting. Some dead trees will be left for birds and other animals. Mickelson considers the planned cutting to be consistent with good forestry, and conservative compared to practices employed in State forests or on private lands. The four-year delay between the fire and the starting of this operation was partially a result of a policy change concerning State parks within the Department of Conservation, one from pure preservation or recreation to balanced programs involving multiple uses. Mickelson noted that there is an energy shortage and there is a demand for wood.

No similar requests for commercial bids to cut trees in State parks have ever been made. Selective cutting involves cutting individual trees according to some plan and does cause some damage to the surroundings.

The trial judge viewed the area on May 3,1979. The court found that defendants have the statutory authority to seek bids and let contracts for the plan to selectively harvest these trees but enjoined defendants from cutting except through its own employees until certain conditions were met to safeguard the area and its use by the public.

The issue presented in this appeal is whether the Department of Conservation has the authority to engage in commercial cutting, logging and harvesting of trees in State parks. Resolution of this issue requires an analysis of the specific provisions of “An Act in relation to the acquisition, control, maintenance, improvement and protection of State parks and nature preserves” (hereinafter State Parks and Nature Preserves Act) (Ill. Rev. Stat. 1977, ch. 105, par. 465 et seq.) and the general powers conferred upon the Department of Conservation, enumerated in the Civil Administrative Code (Ill. Rev. Stat. 1977, ch. 127, pars. 63al through 63bl).

As trustees for the public, the Department of Conservation is entrusted with the care, control, supervision and management of all State parks (Ill. Rev. Stat. 1977, ch. 105, par. 465) pursuant to certain legislatively mandated purposes and objectives (Ill. Rev. Stat. 1977, ch. 105, par. 466). The objective relevant to the case at hand charges the Department of Conservation with the duty of preserving large forested areas for recreational use different from that given by typical city parks, so that these areas may remain unchanged by civilization, so far as possible, and be kept for future generations. (Ill. Rev. Stat. 1977, ch. 105, par. 466(3).) In maintaining State parks, the Department shall conserve the natural character as distinguished from artificially landscaping them (Ill. Rev. Stat. 1977, ch. 105, par. 467). The Department is empowered to contract with any agency, organization or individual consistent with the purposes and the powers granted it in the State Parks and Nature Preserves Act (Ill. Rev. Stat. 1977, ch. 105, par. 468(6)). It is in light of the above-stated provisions that the Department’s authority to commercially harvest trees in State parks must be examined.

Defendants refer us to, and the trial court found, authority for the proposed plan under the provisions of the Civil Administrative Code (Ill. Rev. Stat. 1977, ch. 127, pars. 63a 1 through 63bl). Section 63a26 of that Act gives the Department of Conservation the power to sell surplus agricultural products grown on land owned by the Department, when such products cannot be used by the Department. The court below concluded that cutting, logging and harvesting of trees constitutes the sale of an agricultural product. We disagree. The term “agriculture” is defined as the art or science of cultivating the ground, and its broad use does include farming, horticulture and forestry. (County of Lake v. Cushman (1976), 40 Ill. App. 3d 1045, 1048, 353 N.E.2d 399, 402; People ex rel. Pletcher v. City of Joliet (1926), 321 Ill. 385, 388-89, 152 N.E. 159, 160.) But even when this broad definition is applied to the context of cutting trees in State parks, it is clear that such trees are not “agricultural products” as intended by this section. In our opinion, surplus agricultural products refers to products actually grown by the Department, such as crops of timber grown in State forests. We believe it is of particular significance that the State Forest Act authorized the Department of Conservation to sell timber grown in State forests (Ill. Rev. Stat. 1977, ch. 96½, par. 5906). No comparable authorization exists in the State Parks and Nature Preserves Act.

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Sierra Club v. Kenney, 412 N.E.2d 970, 90 Ill. App. 3d 230, 45 Ill. Dec. 388, 1980 Ill. App. LEXIS 3915 (Ill. Ct. App. 1980).

412 N.E.2d 970 (Sierra Club v. Kenney) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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