Sierra Club v. Office of Mines and Minerals of the Department of Natural Resources ( 2015 )

Illinois Official Reports
Appellate Court
Sierra Club v. Office of Mines & Minerals, 2015 IL App (4th) 140405
Appellate Court THE SIERRA CLUB; PRAIRIE RIVERS NETWORK; and
Caption OPENLANDS, Plaintiffs-Appellants, v. THE OFFICE OF MINES
AND MINERALS of the Department of Natural Resources; THE
OFFICE OF REALTY AND ENVIRONMENTAL PLANNING of
the Department of Natural Resources; THE DEPARTMENT OF
NATURAL RESOURCES; MARC MILLER, Director of Natural
Resources in His Professional Capacity; and MISSISSIPPI SAND,
LLC, Defendants-Appellees.
District & No. Fourth District
Docket No. 4-14-0405
Filed March 5, 2015
Modified upon
denial of rehearing May 15, 2015
Decision Under Appeal from the Circuit Court of Sangamon County, No.
Review 12-MR-1021; the Hon. John P. Schmidt, Judge, presiding.
Judgment Affirmed.
Counsel on Mark Templeton and Mark Rohan, law student, both of University of
Appeal Chicago Law School, and Albert Ettinger, all of Chicago, and Eric M.
Schwing, of Springfield, for appellants.
Claire A. Manning (argued), of Brown, Hay & Stephens, LLP, of
Springfield, for appellee Mississippi Sand, LLC.
William P. Hardy (argued), of Hinshaw & Culbertson LLP, of
Springfield, and Russell R. Eggert, of Lathrop & Gage LLP, of
Chicago, for other appellees.
Panel JUSTICE TURNER delivered the judgment of the court, with opinion.
Presiding Justice Pope and Justice Steigmann concurred in the
judgment and opinion.
OPINION
¶1 Plaintiffs, the Sierra Club, Prairie Rivers Network, and Openlands, appeal the Sangamon
County circuit court’s April 16, 2014, dismissal of their first-amended petition for review of
the actions of defendants, the Department of Natural Resources (Department); the
Department’s Office of Mines and Minerals; the Department’s Office of Realty and
Environmental Planning; and Marc Miller, the Department Director (collectively,
Department defendants), in approving the surface-mining permit of defendant, Mississippi
Sand, LLC (Mississippi Sand). On appeal, plaintiffs assert they have standing to challenge
the Department defendants’ actions. We affirm.
¶2 I. BACKGROUND
¶3 A. La Salle County Board Proceedings
¶4 In September 2011, Mississippi Sand submitted an application for a zoning special-use
permit to the La Salle County department of environmental services and land use, seeking to
conduct mining operations on a site in La Salle County. In January 2012, the La Salle County
board approved a special-use permit for Mississippi Sand’s mining operations.
¶5 B. Department Proceedings
¶6 On February 16, 2012, Mississippi Sand applied to the Department’s Office of Mines and
Minerals for a 10-year surface-mining permit to extract silica from the St. Peter Sandstone
Formation, which is adjacent to the eastern entrance of Starved Rock State Park. With its
application, Mississippi Sand included a reclamation plan and a reclamation map, which
depicted its plans for restoring the land after completing the proposed open-pit mine.
Mississippi Sand also submitted an “affected area” map. Those documents were required by
section 5(e)(14) of the Surface-Mined Land Conservation and Reclamation Act (Mining Act)
(225 ILCS 715/5(e)(14) (West 2012)). The application also attached several other
documents, including an October 2011 threatened/endangered-species report for the area that
was prepared by Planning Resources, Inc. Another document indicated that, in June 2011,
Planning Resources, Inc., contacted the Department for use of the ecological compliance
assessment tool (EcoCAT). According to the document, “EcoCAT uses databases,
Geographic Information System mapping, and a set of programmed decision rules to
determine if proposed actions are in the vicinity of protected natural resources.” The other
documents show La Salle County had consulted with the Department before issuing the
special-use permit.
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¶7 Michael Falter, supervisor of operations of the mine safety and training division of the
Office of Mines and Minerals, forwarded Mississippi Sand’s permit application to Pat
Malone, a Department employee, for an endangered-species review. In a March 2012 e-mail,
Malone informed Falter Mississippi Sand’s surface-mining-permit application was reviewed
in accordance with section 11 of the Illinois Endangered Species Protection Act (520 ILCS
10/11 (West 2012)), section 17 of the Illinois Natural Areas Preservation Act (Preservation
Act) (525 ILCS 30/17 (West 2012)), and part 1075 of Title 17 of the Illinois Administrative
Code (17 Ill. Adm. Code 1075). The e-mail then noted consultation for this surface-mining
permit had been terminated.
¶8 Also in March 2012, a group of citizens sent Miller, the Department’s director, a letter
raising concerns about Mississippi Sand’s proposed mine near Starved Rock State Park.
Elliot Brinkman, as an employee of plaintiff Prairie Rivers Network, helped draft the
aforementioned citizen letter. (The affidavit of Brinkman was attached to plaintiffs’ motion
for summary judgment.) Plaintiffs Sierra Club and Openlands sent letters to the Illinois
Environmental Protection Agency regarding Mississippi Sand’s permit application.
Openlands indicated it had grave concerns about air and water pollution as well as the mine
impacting historical and cultural resources. Openlands also made a request for documents
related to the permit-approval process under the Freedom of Information Act (5 ILCS 140/1
et seq. (West 2012)). In July 2012, the Department responded to the aforementioned letters.
As to the citizen letter, Miller explained (1) the Department had carefully and seriously
reviewed the application material to ensure full compliance with the law and (2) why they
were not entitled to a public hearing under the Rivers, Lakes, and Streams Act (615 ILCS
5/4.9 et seq. (West 2012)). The acting director of the Department’s Office of Mines and
Minerals, Michael Woods, responded to Openlands’s and Sierra Club’s letters, addressing the
concerns raised by the organizations and noting the Department was committed to ensuring
the proposed mine operation is conducted within compliance of all applicable regulations.
Also in July 2012, the Department denied Openlands access to the documents regarding the
short- and long-term impact on the 13 statutory factors in the Mining Act (225 ILCS 715/5(g)
(West 2010)), the documents and data that formed the basis for the Department’s decision as
to those 13 factors, and the final documents evaluating the overall impact of the mine and
final consideration given to the 13 factors.
¶9 On June 4, 2012, the Department’s Office of Mines and Minerals completed a permit
review, analyzing Mississippi Sand’s permit application. The review concluded by stating the
Department had determined Mississippi Sand’s plan complied with the Mining Act (225
ILCS 715/1 et seq. (West 2012)) and its implementing regulations, and thus a permit would
be granted subsequent to Mississippi Sand providing the required reclamation bond and
permit fee. On November 13, 2012, the Department’s Office of Mines and Minerals issued
Mississippi Sand a surface-mining permit.
¶ 10 C. Circuit Court Proceedings
¶ 11 On December 12, 2012, plaintiffs filed their petition for review of an administrative
action. In addition to the Department, the Department’s Office of Mines and Minerals, the
Department’s Office of Realty and Environmental Planning, and Director Miller, the petition
also listed as defendants Woods, Falter, and Todd Rettig, as acting director of the Office of
Realty and Environmental Planning. Under an agreed order in March 2014, the trial court
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dismissed without prejudice Woods, Falter, and Rettig as defendants. In February 2013, both
the Department defendants and Mississippi Sand filed motions to dismiss plaintiffs’ petition.
The next month, plaintiffs sought leave to file their first-amended petition. Under an agreed
order, plaintiffs were granted leave to file their first-amended petition.
¶ 12 Plaintiffs’ first-amended petition contains five counts. Count I asserts Mississippi Sand
violated section 5(e) of the Mining Act (225 ILCS 715/5(e) (West 2010)) and applicable
administrative regulations by submitting an incomplete, inaccurate, and deficient reclamation
map, reclamation plan, and “affected area” map. The Department defendants violated the
Mining Act by approving the flawed reclamation map, reclamation plan, and “affected area”
map and then relying on them in the decision to approve the surface-mining permit. Count I
noted numerous errors in the aforementioned documents. Count I sought (1) a declaration
that the issuance of the mining permit was arbitrary and capricious because the Department
defendants did not follow proper procedures, (2) a declaration the Department defendants
could not grant the permit because Mississippi Sand did not present complete and accurate
plans and maps, and (3) the voiding of the permit.
¶ 13 Count II alleged the Department’s Office of Mines and Minerals violated the Mining Act
by failing to adequately consider the 13 statutorily required factors contained in section 5(g)
of the Mining Act (225 ILCS 715/5(g) (West 2010)). Count II sought (1) a declaration that
the issuance of the mining permit was arbitrary and capricious and not in accordance with the
law, (2) a declaration the Department defendants could not grant the permit without fully and
fairly considering the 13 statutory factors required by the Mining Act and implementing
regulations, and (3) the voiding of the permit.
¶ 14 Count III asserted the Department defendants violated the due-process rights of plaintiffs
and their members. Plaintiffs noted they participated in the agency proceeding to the best of
their ability but were hampered by the Department defendants’ refusal to provide necessary
information until after the mining permit was issued. They further noted the letters they sent
to the Department regarding Mississippi Sand’s permit application and argued those letters
were not meaningfully addressed. Additionally, plaintiffs contended their property interests
and the property interests of their members were at stake because the permit allowed
Mississippi Sand to engage in activities that would emit silica dust, which would endanger
the health, property values, and business assets of plaintiffs and their members. Plaintiffs
asserted they were entitled to (1) notice of the details of Mississippi Sand’s reclamation map,
reclamation plan, and “affected area” map and (2) a predecision hearing but did not receive
such. Additionally, plaintiffs assert that, if the Mining Act did not require notice or a
predecision hearing, it was unconstitutional as applied to them. Count III requested the
following declarations: (1) defendants violated plaintiffs’ and their members’ procedural
due-process rights, (2) plaintiffs and their members and supporters whose protected property
interests were endangered by the issuance of this mining permit were entitled to present their
concerns to the Department defendants at a predecision hearing, and (3) the Mining Act and
its implementing regulations as applied here violated plaintiffs’ procedural due-process
rights.
¶ 15 Count IV contended the Department defendants violated section 17 of the Preservation
Act (525 ILCS 30/17 (West 2012)) by failing to fulfill consultation requirements. Plaintiffs
argued defendants did not completely follow the administratively required process for
compliance with section 17 of the Preservation Act. They also asserted the Department’s
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Office of Realty and Environmental Planning did not provide a justification for the
termination of their consultation with the Office of Mines and Minerals, which again violated
section 17 of the Preservation Act. Last, plaintiffs argued the Office of Realty and
Environmental Planning relied on outdated and inaccurate information from the EcoCAT
database to complete the consultations regarding Mississippi Sand’s zoning-variance permit
and thus violated its duty to protect nature preserves and registered areas. Count IV requested
(1) a declaration that the issuance of the mining permit was arbitrary and capricious and not
in accordance with the law, (2) a declaration the Department defendants did not perform a
proper consultation under the Preservation Act, (3) a declaration the Department defendants
cannot rely exclusively or significantly upon EcoCAT for determining whether a valid record
of occurrence for a listed species or natural area exists within the vicinity of the proposed
action, (4) an order requiring the Department’s Office of Mines and Minerals to comply with
the consultation requirements set forth in the Preservation Act through the writ of mandamus,
and (5) the voiding of the permit.
¶ 16 Count V argued the totality of the circumstances illustrated in counts I, II, and IV showed
arbitrary and capricious conduct. Count V sought (1) a declaration that the issuance of the
mining permit was arbitrary and capricious and not in accordance with the law, (2) a
declaration the Department defendants could not grant the permit because Mississippi Sand
did not present complete and accurate plans and maps, (3) a declaration the Department
defendants could not grant the permit without fully and fairly considering the 13 statutory
factors required by the Mining Act and implementing regulations, (4) a declaration the
Department defendants did not perform a proper consultation under the Preservation Act, (5)
a declaration the Department defendants cannot rely exclusively or significantly upon
EcoCAT for determining whether a valid record of occurrence for a listed species or natural
area exists within the vicinity of the proposed action, and (6) the voiding of the permit.
¶ 17 Both the Department defendants and Mississippi Sand filed motions to dismiss plaintiffs’
first-amended complaint under both sections 2-615 and 2-619 of the Code of Civil Procedure
(735 ILCS 5/2-615, 2-619 (West 2012)). In November 2013, plaintiffs filed a motion for
summary judgment. In March 2014, both the Department defendants and Mississippi Sand
filed motions to strike portions of plaintiffs’ memorandum of law in support of their motion
for summary judgment and certain exhibits attached to the summary judgment motion. In
April 2014, plaintiffs filed a motion to supplement the administrative record provided by the
Department defendants.
¶ 18 On April 16, 2014, the circuit court held a hearing on all pending motions. After hearing
the parties’ arguments, the court granted defendants’ motions to dismiss, finding plaintiffs
lacked standing to bring their causes of actions against defendants. The court explained
plaintiffs were not a party under the statute. The court also noted the other pending motions
were rendered moot by its decision on the motions to dismiss.
¶ 19 On May 14, 2014, plaintiffs filed a timely notice of appeal in compliance with Illinois
Supreme Court Rule 303 (eff. May 30, 2008). Accordingly, this court has jurisdiction of this
appeal under Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994).
¶ 20 II. ANALYSIS
¶ 21 Plaintiffs argue they have standing to challenge the Department’s Office of Mines and
Minerals’ November 2012 issuance of a surface-mining permit to Mississippi Sand.
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Specifically, plaintiffs argue they have (1) standing under the supreme court’s decision in
Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 524 N.E.2d 561 (1988); (2)
a cause of action under the Administrative Review Law (735 ILCS 5/art. III (West 2012));
(3) a cause of action for review via a writ of certiorari, if they are not parties under the
Administrative Review Law; (4) a cause of action in mandamus under the Preservation Act
(525 ILCS 30/1 et seq. (West 2012)); and (5) a cause of action under the Illinois and United
States Constitutions for due-process violations during the application process for the
surface-mining permit. Defendants contend the circuit court’s dismissal was proper.
¶ 22 The standing doctrine seeks to ensure that issues are raised only by those parties with a
real interest in the outcome of the controversy. Wexler v. Wirtz Corp., 211 Ill. 2d 18, 23, 809
N.E.2d 1240, 1243 (2004). Under Illinois law, a lack of standing is an affirmative defense,
and thus the defendants bear the burden to plead and prove a lack of standing. Wexler, 211
Ill. 2d at 22, 809 N.E.2d at 1243. Where a plaintiff lacks standing, the proceedings must be
dismissed because the lack of standing negates the plaintiff’s cause of action. Wexler, 211 Ill.
2d at 22, 809 N.E.2d at 1243.
¶ 23 Defendants raised the issue of standing in the portion of their motions to dismiss brought
under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2012)). With a
section 2-619 motion to dismiss, we deem as true all well-pleaded facts, together with all
reasonable inferences that can be gleaned from the facts. Cooney v. Rossiter, 2012 IL
113227, ¶ 17, 986 N.E.2d 618. Moreover, courts interpret all of the pleadings and supporting
documents in the light most favorable to plaintiffs, as they are the nonmoving parties. See
Cooney, 2012 IL 113227, ¶ 17, 986 N.E.2d 618. This court reviews de novo a section 2-619
dismissal. Cooney, 2012 IL 113227, ¶ 17, 986 N.E.2d 618.
¶ 24 In this case, plaintiffs raise issues related to the Department defendants’ approval of a
surface-mining permit for Mississippi Sand. Section 13a of the Mining Act (225 ILCS
715/13a (West 2012)) provides “[a]ll final administrative decisions of the Department
hereunder shall be subject to judicial review pursuant to the provisions of the Administrative
Review Law.” Section 3-102 of the Administrative Review Law (735 ILCS 5/3-102 (West
2012)) states the following:
“Article III of this Act shall apply to and govern every action to review judicially a
final decision of any administrative agency where the Act creating or conferring
power on such agency, by express reference, adopts the provisions of Article III of
this Act or its predecessor, the Administrative Review Act. This Article shall be
known as the ‘Administrative Review Law’. In all such cases, any other statutory,
equitable or common law mode of review of decisions of administrative agencies
heretofore available shall not hereafter be employed.”
As our supreme court has explained, when the Administrative Review Law is applicable, it
eliminates any other statutory, equitable, or common-law remedies by which administrative
determinations had previously been reviewed. Marsh v. Illinois Racing Board, 179 Ill. 2d
488, 493, 689 N.E.2d 1113, 1116 (1997). “Specifically, the legislature designed the Review
Law ‘to channel into a single procedure the judicial review of the decisions made by
administrative agencies in particular cases.’ ” Marsh, 179 Ill. 2d at 493, 689 N.E.2d at 1116
(quoting People ex rel. Naughton v. Swank, 58 Ill. 2d 95, 102, 317 N.E.2d 499, 503 (1974)).
Moreover, “[t]he purpose of administrative review is ‘to make certain the agency has acted
within its judicial bounds defined by law, to guard those statutory and constitutional rights
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guaranteed to one subject to administrative action, and to ascertain whether the record
supports the order issued.’ ” Marozas v. Board of Fire & Police Commissioners, 222 Ill.
App. 3d 781, 791, 584 N.E.2d 402, 408-09 (1991) (quoting Edwards v. City of Quincy, 124
Ill. App. 3d 1004, 1012, 464 N.E.2d 1125, 1131 (1984)). Thus, any due-process claims are
inherent in an administrative-review action. Marozas, 222 Ill. App. 3d at 791, 584 N.E.2d at
408.
¶ 25 In their first-amended petition, plaintiffs' due-process, certiorari, and mandamus claims
were based on the Department defendants' actions during the permit-application process.
Specifically, as to the mandamus claim, it was included in count IV, which also sought
declaratory relief and the voidance of the permit based on the Department's handling of the
permit-application process. In this case, the mandamus claim is clearly part of the
administrative-review claims. Accordingly, the Administrative Review Law is plaintiffs' only
avenue of review in this case.
¶ 26 Additionally, we note that, even if petitioners' had separately raised the mandamus claim
in this case, the trial court's dismissal of it would still be proper. Under section 17 of the
Preservation Act (525 ILCS 30/17 (West 2012)), plaintiffs can seek only to have the agency
engage in the evaluation; no other remedy is available. McHenry County Defenders, Inc. v.
City of Harvard, 384 Ill. App. 3d 265, 281-82, 891 N.E.2d 1017, 1033 (2008). Here, the
record shows the Office of Mines and Minerals did do the evaluation, and petitioners only
take issue with the manner in which it was done. Since the evaluation had already been
completed, petitioners cannot state a cause of action for mandamus, seeking to compel the
Department to do something it had already done.
¶ 27 In Illinois, a long-standing general rule exists that “administrative review is limited to
parties of record before the administrative agencies and then only when their rights, duties or
privileges are adversely affected by the decision.” (Emphasis added.) Board of Education of
Roxana Community School District No. 1 v. Pollution Control Board, 2013 IL 115473, ¶ 20,
998 N.E.2d 1256 (hereinafter, Roxana); see also Williams v. Department of Labor, 76 Ill. 2d
72, 78, 389 N.E.2d 1177, 1179 (1979); Winston v. Zoning Board of Appeals, 407 Ill. 588,
593, 95 N.E.2d 864, 868 (1950). Moreover, we note the term “party of record” is also used in
section 3-107(a) of the Administrative Review Law (735 ILCS 5/3-107(a) (West 2012)),
which specifically requires “the administrative agency and all persons, other than the
plaintiff, who were parties of record to the proceedings before the administrative agency
shall be made defendants.” (Emphasis added.) Plaintiffs contend the above rule sets forth the
requirements for a cause of action under the Administrative Review Law and not standing.
Regardless of labels, the aforementioned rule is clearly a threshold requirement that plaintiffs
must satisfy for review under the Administrative Review Law, which, as we explained, is
plaintiffs’ only means of review.
¶ 28 Plaintiffs argue Greer is the applicable case to determine standing and not the
long-standing rule. In Greer, 122 Ill. 2d at 492, 524 N.E.2d at 574-75, our supreme court
found “standing in Illinois requires only some injury in fact to a legally cognizable interest.”
Specifically, the claimed injury, which may be actual or threatened, must be (1) distinct and
palpable, (2) fairly traceable to the defendant’s actions, and (3) substantially likely to be
prevented or redressed by the grant of the requested relief. Greer, 122 Ill. 2d at 492-93, 524
N.E.2d at 575. Plaintiffs emphasize the standing test in Greer did not contain any “party”
requirement.
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¶ 29 However, the Greer decision gives no indication it was brought under the Administrative
Review Law. In Greer, 122 Ill. 2d at 470, 524 N.E.2d at 564, the plaintiffs filed suit against
the Illinois Housing Development Authority (Housing Authority) for approving mortgage
financing for a housing-rehabilitation project. They alleged (1) the approval violated the
Housing Authority’s statutory duty to promote economic heterogeneity and sought a
declaratory judgment the Housing Authority not proceed with the funding, (2) the Housing
Authority’s actions did not comply with statutory mandates and were arbitrary, and (3) the
Housing Authority failed to give any consideration to statutory requirements for economic
integration; and plaintiffs requested the issuance of a common law writ of certiorari based on
all of the alleged facts. Greer, 122 Ill. 2d at 485-86, 524 N.E.2d at 571-72. Thus, the facts of
Greer do not indicate the plaintiffs brought the suit under the Administrative Review Law. In
fact, in addressing standing, the supreme court referred to the plaintiffs’ suit as a challenge to
the legality of a governmental action. See Greer, 122 Ill. 2d at 487-88, 524 N.E.2d at 572-73.
The Greer court never addressed the applicability of the Administrative Review Law.
Additionally, in the supreme court’s later decision in Glisson v. City of Marion, 188 Ill. 2d
211, 217, 720 N.E.2d 1034, 1038 (1999), where it applied the standing test set forth in Greer,
the plaintiff did not file a petition for administrative review. Thus, we agree with the Second
District that nothing in Greer overruled the general requirement a party seeking review of an
administrative agency’s decision must have been a party of record to the agency’s
proceeding. See Helping Others Maintain Environmental Standards v. Bos, 406 Ill. App. 3d
669, 683, 941 N.E.2d 347, 361 (2010).
¶ 30 Accordingly, the issue is whether plaintiffs were a party of record. Plaintiffs argue they
were based on the (1) dictionary definition of “party,” (2) fact the Department responded to
their letters regarding the permit application, and (3) structure of the Mining Act. Defendants
argue this court should look to the language of the Mining Act, which does not grant
plaintiffs party status.
¶ 31 Plaintiffs’ first argument is irrelevant. As noted above, the supreme court has used the
term “parties of record” (Roxana, 2013 IL 115473, ¶ 20, 998 N.E.2d 1256), and so does the
Administrative Review Law (735 ILCS 5/3-107(a) (West 2012)). Thus, whether plaintiffs are
parties under a general definition does not determine whether they are “parties of record.”
¶ 32 Plaintiffs next argue they are parties of record because the Department responded to their
letters and those responses were included in the administrative record submitted by the
Department in this case. However, plaintiffs were not the only ones that submitted letters to
the Department regarding this permit. In March 2012, a group of dozens of citizens sent
Miller a letter voicing concerns about Mississippi Sand’s permit application, and Miller
responded. While plaintiffs attached those documents to their first-amended complaint, the
administrative record does not contain those letters. The administrative record also lacks the
letters sent by plaintiffs Sierra Club and Openlands. Since the administrative record lacks the
complaint letters and at least one response to the complaint letters, we disagree with plaintiffs
the mere fact the responses by the Department’s Office of Mines and Minerals to plaintiffs’
letters were included in the administrative record makes them parties of record in Mississippi
Sand’s permit-application proceedings.
¶ 33 Last, we turn to the language of the Mining Act. Under sections 5(f) and 17(f)(3) of the
Mining Act (225 ILCS 715/5(f) (West 2010); 225 ILCS 715/17(f)(3) (West 2012)), a public
hearing on a permit application can only take place when the county board of a county to be
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affected under a proposed permit has requested a public hearing. As in this case, when a
public hearing is not requested by said county board, then sections 5(g) and 17(f)(3) of the
Mining Act (225 ILCS 715/5(g) (West 2010); 225 ILCS 715/17(f)(3) (West 2012)) allow
only written comment from the county board. In support of their argument, plaintiffs cite the
following language from section 5(f) (225 ILCS 715/5(f) (West 2010)): “procedural rules
shall include provisions for reasonable notice to all parties, including the applicant, and
reasonable opportunity for all parties to respond by oral or written testimony, or both, to
statements and objections made at the public hearing. County boards and the public shall
present their recommendations at these hearings.” However, as stated, this case did not
involve a public hearing, and thus the aforementioned language does not apply here. We find
the language of the Mining Act provides that, when a county board has not requested a public
hearing, the general public has no statutory right to comment on the permit-application
process. Moreover, we decline to infer the public has a right to participate in
permit-application proceedings under the Mining Act where another permit-application
statute expressly allows for such participation and the Mining Act does not. See 225 ILCS
720/2.04(d) (West 2012). When the affected county board does not request a public hearing
under section 5(f), the legislature did not provide for the involvement of any other parties
besides the affected county board in the permit-application process. Accordingly, under the
language of the Mining Act, plaintiffs are not parties of record to Mississippi Sand’s
permit-application process.
¶ 34 Plaintiffs further argue case law demonstrates that party status is not limited to just those
entities expressly named as parties. In support of their argument, they cite this court’s
decision in Kemp-Golden v. Department of Children & Family Services, 281 Ill. App. 3d
869, 667 N.E.2d 688 (1996), claiming an analysis of the plaintiff’s participation in that case
would have been unnecessary if one could not be a party unless the statute explicitly
provided for party status. In Kemp-Golden, 281 Ill. App. 3d at 877, 667 N.E.2d at 693, this
court rejected several of the plaintiff’s arguments, including her claim “her participation in
the administrative hearing amounted to de facto intervention to which no one objected and,
consequently, vested her with party status.” The plaintiff had filed the report of abuse and
testified as a witness at the administrative hearing, as she was required to do by statute (325
ILCS 5/10 (West 1994)). Kemp-Golden, 281 Ill. App. 3d at 877, 667 N.E.2d at 693-94. This
court was simply addressing one of the plaintiff’s arguments when it addressed the plaintiff’s
role at the administrative hearing. Even if the extent of participation in the administrative
process was a consideration in determining party status, the plaintiff’s participation in
Kemp-Golden was significantly greater than the plaintiffs’ roles in this case, and thus it does
not support plaintiffs’ position.
¶ 35 Plaintiffs also cite Williams, noting that even when a person is not explicitly granted a
role in the proceeding, the person may still be a party. There, in March 1977, the Board of
Review of the Department of Labor found the claimant was ineligible for unemployment
benefits. Williams, 76 Ill. 2d at 75, 389 N.E.2d at 1178. By way of a supplemental
proceeding that began in November 1977, the Board of Review of the Department of Labor
granted the claimant’s attorney’s request for approval of his attorney fees at a reduced
amount. Williams, 76 Ill. 2d at 75-76, 389 N.E.2d at 1178. Our supreme court noted the
claimant was clearly a party to the Board’s decision that denied him unemployment benefits
and found he was also a party to its decision that limited the fee of his attorney. Williams, 76
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Ill. 2d at 79, 389 N.E.2d at 1180. This case cuts against plaintiffs’ position because it shows
the importance of being a named party in the initial proceedings.
¶ 36 Since plaintiffs were not parties to the administrative decision that they seek to review,
we find plaintiffs cannot seek review of the Department’s decision to approve Mississippi
Sand’s surface-mining permit. Accordingly, the trial court properly dismissed plaintiffs’ first
amended petition for review.
¶ 37 III. CONCLUSION
¶ 38 For the reasons stated, we affirm the Sangamon County circuit court’s dismissal of
plaintiffs’ first amended petition for review.
¶ 39 Affirmed.
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