Helping Others Maintain Environmental Standards v. A.J. Bos ( 2010 )

Nos. 2-09-1283 & 2-10-0162 cons. Filed: 12-22-10
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
HELPING OTHERS MAINTAIN ) Appeal from the Circuit Court
ENVIRONMENTAL STANDARDS, ) of Jo Daviess County.
LEROY BEHRENS, LAUREL BEHRENS, )
MARY JO BURKE, JUANITA CROPPER, )
JEFFREY GRAVES, DEAN B. HICKS, )
KATHLEEN M. HICKS, STEVE )
HOLESINGER, WILL LIBERTON, LORI )
RUNKLE, and RICHARD RUNKLE, )
)
Plaintiffs-Appellees, )
)
v. ) No. 08--CH--42
)
A.J. BOS, TRADITIONS INVESTMENTS, )
LLC, and THE DEPARTMENT OF )
AGRICULTURE, ) Honorable
) Kevin J. Ward,
Defendants-Appellants. ) Judge, Presiding.
______________________________________________________________________________
HELPING OTHERS MAINTAIN ) Appeal from the Circuit Court
ENVIRONMENTAL STANDARDS, ) of Jo Daviess County.
LEROY BEHRENS, LAUREL BEHRENS, )
MARY JO BURKE, JUANITA CROPPER, )
JEFFREY GRAVES, DEAN B. HICKS, )
KATHLEEN M. HICKS, STEVE )
HOLESINGER, WILL LIBERTON, LORI )
RUNKLE, and RICHARD RUNKLE, )
)
Plaintiffs-Appellants, )
)
v. ) No. 08--CH--42
)
A.J. BOS, TRADITIONS INVESTMENTS, )
LLC, and THE DEPARTMENT OF )
Nos. 2--09--1283 & 2--10--0162 cons.
AGRICULTURE, ) Honorable
) Kevin J. Ward,
Defendants-Appellees. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE BOWMAN delivered the opinion of the court:
Plaintiffs, Helping Others Maintain Environmental Standards (HOMES), Leroy Behrens,
Laurel Behrens, Mary Jo Burke, Juanita Cropper, Jeffrey Graves, Dean B. Hicks, Kathleen M. Hicks,
Steve Holesinger, Will Liberton, Lori Runkle, and Richard Runkle, sought to halt the construction
of a "megadairy" by defendants A.J. Bos and Traditions Investments, LLC (collectively Bos).
Plaintiff HOMES is a not-for-profit corporation that was organized to oppose the livestock facility's
construction. The remaining plaintiffs are individuals living in the general vicinity of the proposed
dairy in Nora, Illinois. After Bos obtained approval from defendant the Department of Agriculture
(Department) to begin construction, plaintiffs brought suit against Bos and the Department. The
Department moved to dismiss the counts against it, and its motion was granted. Plaintiffs obtained
a preliminary injunction against Bos, effectively halting construction of the livestock facility, but they
were subsequently denied a permanent injunction. In appeal No. 2--10--0162, plaintiffs argue that:
(1) they have standing to seek judicial review of the Department's approval to begin construction, (2)
the trial court erred in a number of its evidentiary rulings, and (3) the trial court's denial of a
permanent injunction is against the manifest weight of the evidence. We allowed the Illinois chapter
of the Sierra Club, the Illinois Council of Trout Unlimited, and the Prairie Rivers Network to file a
joint amicus curiae brief in support of plaintiffs. In appeal No. 2--09--1283, which has been
consolidated with plaintiffs' appeal, Bos argues that the trial court erred in denying his motion to
dissolve the preliminary injunction and that he is entitled to damages. We affirm the trial court's
judgment in all respects.
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I. BACKGROUND
A. Bos Obtains Departmental Approval
On October 31, 2007, Bos filed with the Department notices of intent to construct two
livestock management facilities. The proposed dairies were named "Tradition North" and "Tradition
South" and were located in Nora Township, Jo Daviess County. Each dairy would have 6,850
"animal units" in the form of dairy cows and calves.1 The Tradition South dairy's plans, as amended,
proposed to use three livestock waste holding ponds, one with dimensions of 300 by 855 by 20 feet;
the second 760 by 850 by 20 feet; and the third 400 by 400 by 20 feet. Bos sought the Department's
approval of the dairies pursuant to the Livestock Management Facilities Act (Livestock Act) (510
ILCS 77/1 et seq. (West 2008)).
In accordance with the Livestock Act, the Department sent notice of the intent to construct
to the Jo Daviess County Board (Board), and the Board requested that the Department hold an
informational meeting on the proposed construction. See 510 ILCS 77/12(a) (West 2008); 8 Ill.
Adm. Code §900.403 (Conway Greene CD-ROM June 2002). At the meeting, the Department was
required to receive evidence on the following eight siting criteria: whether (1) registration and
livestock waste management plan certification requirements were met by the notice of intent to
construct; (2) the design, location, or proposed operation would protect the environment by being
consistent with the Livestock Act; (3) the location minimized incompatibility with the area's character
by being zoned for agriculture or complying with the Livestock Act's setback requirements; (4) if the
facility was in a 100-year flood plain or an environmentally sensitive area (defined as a karst area or
1
A milking dairy cow is 1.4 animal units while a young dairy cow is 0.6 animal units. 510
ILCS 77/10.10 (West 2008).
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with aquifer material within five feet of the bottom of the waste facility), the proposed construction
standards were consistent with protecting the area's safety; (5) the owner or operator submitted plans
to minimize the likelihood of environmental damage from spills, runoff, and leaching; (6) odor control
plans were reasonable and incorporated odor reduction technologies; (7) traffic patterns minimized
the effect on existing traffic flow; and (8) construction of the facility was consistent with community
growth, tourism, recreation, or economic development through compliance with applicable zoning
and setback requirements. 510 ILCS 77/12(d) (West 2008).
The informational meeting took place on January 10, 2008, and the public was allowed to ask
questions and make comments. See 510 ILCS 77/12(a) (West 2008). On January 31, 2008, the Jo
Daviess County Development and Planning Committee voted to recommend to the Board that the
proposed dairies did not meet all eight siting criteria. On February 11, 2008, the Board found that
five of the eight siting criteria had not been met and voted 11 to 5 to recommend that the Department
not approve the dairies. See 510 ILCS 77/12(b) (West 2008) (the county board shall submit an
advisory, nonbinding recommendation to the Department as to whether the proposed facility meets
the eight siting criteria). However, on May 30, 2008, the Department ruled that it was "more likely
than not" that the Livestock Act's provisions had been met regarding the Tradition South facility, and
it approved its construction. See 510 ILCS 77/12.1 (West 2008) (if the Department determines that
it is "more likely than not" that the Livestock Act's provisions have been met, construction of the
facility may proceed). Bos was subject to inspection by the Department before, during, and after
construction. 510 ILCS 77/13(g) (West 2008); 8 Ill. Adm. Code §900.505 (Conway Greene CD-
ROM June 2002). Bos did not subsequently pursue approval of the Tradition North facility.
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One of the main controversies surrounding the approval of the Tradition South dairy was
whether it was in a "karst area" under the Livestock Act. The Livestock Act defines "karst area" as
"an area with a land surface containing sinkholes, large springs, disrupted land drainage, and
underground drainage systems associated with karstified carbonate bedrock and caves or a land
surface without those features but containing a karstified carbonate bedrock unit generally overlain
by less than 60 feet of unconsolidated materials." 510 ILCS 77/10.24 (West 2008). "Karstified
carbonate bedrock" is defined as "a carbonate bedrock unit (limestone or dolomite) that has a
pronounced conduit or secondary porosity due to dissolution of the rock along joints, fractures, or
bedding plains." 510 ILCS 77/10.26 (West 2008). Under administrative regulations, if the "proposed
livestock waste handling facility is to be located within an area designated as 'Sink hole areas' on
'Karst Terrains and Carbonate Rocks of Illinois', IDNR-ISGS Illinois Map 8"2 (Map 8), or if soil
samples from within 20 feet of the livestock waste handling facility boundaries indicate that the waste
handling facility is in a "karst area," additional inspections and tests are required (35 Ill. Adm. Code
§§506.302(b), (g) (Conway Greene CD-ROM June 2002)). If a livestock waste handling facility is
in a karst area, the waste facility must be designed to prevent seepage of waste into groundwater (510
ILCS 77/13(b)(2) (West 2008); 35 Ill. Adm. Code §506.312(a) (Conway Greene CD-ROM June
2002)) and is to be constructed using a rigid material such as concrete or steel (35 Ill. Adm. Code
§506.312(b), amended at 25 Ill. Reg. 14883, eff. November 15, 2001. However, the facility's owner
or operator may receive the Department's permission to "modify or exceed these standards in order
to meet site specific objectives." 35 Ill. Admin. Code §506.312(c), amended at 25 Ill. Reg. 14883,
eff. November 15, 2001. In such a situation, the owner or operator must demonstrate that the
2
The dairy site is not in a sinkhole area according to Map 8.
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modification is at least as protective of the groundwater, surface water, and structural integrity of the
waste facility as are the regulation's requirements. 35 Ill. Adm. Code §506.312(c), amended at 25
Ill. Reg. 14883, eff. November 15, 2001. No livestock waste facility may be constructed within 400
feet of a natural depression in a karst area. 510 ILCS 77/13(b)(2) (West 2008); 35 Ill. Adm. Code
§506.302(g)(1) (Conway Greene CD-ROM June 2002).
B. Plaintiffs File Suit
On June 3, 2008, plaintiffs filed a petition with the Department, seeking reconsideration or
a stay of the construction approval. The Department responded that plaintiffs did not have standing
to challenge its administrative decision.
Also on June 3, 2008, plaintiffs filed a five-count complaint against defendants in the trial
court. Count I was directed against both defendants. It alleged individual plaintiffs' concerns
regarding ground water contamination and air pollution from the facilities. It alleged that the bedrock
underlying and surrounding the dairy sites was made up of "Galena Group Carbonate Rock" with
karst features, which constituted a karst aquifer, meaning that it was highly susceptible to
groundwater contamination by the seepage of animal waste. Count I alleged that Bos's proposed
waste handling ponds were not going to be constructed using a rigid material such as concrete or
steel, but rather compacted soil, and would therefore leak. It further alleged that the Livestock Act's
requirements for minimum setback distances from residences had not been met. See 510 ILCS
77/35(c) (West 2008). Count I sought a declaratory judgment that the livestock facilities were in
violation of the Livestock Act; a declaratory judgment that the Department's decision that Tradition
South complied with the Livestock Act was "unlawful, illegal and void"; and preliminary and
permanent injunctions enjoining Bos from constructing and operating the livestock facilities.
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The remaining counts were directed against Bos. Count II alleged public nuisance based on
noise, offensive odors, groundwater contamination, increased vehicle traffic, interference and
annoyance impairing the use of plaintiffs' property, inconvenience, injury to health, diminution in
property values, and damage to the area's reputation. Count II further alleged that the dairies would
violate plaintiffs' state constitutional right to a healthful environment and would constitute public
nuisances pursuant to statute. Count II sought an order temporarily restraining Bos from proceeding
with construction of the facilities; preliminary and permanent injunctions enjoining Bos from
constructing and operating the facilities; and a declaration that the operation was a nuisance.
Count III alleged common-law public nuisance and count IV alleged common-law private
nuisance. Both sought the same relief as count II. Count V alleged common-law continuing trespass
and contained many of the same allegations as the nuisance counts. It also requested the same relief,
except that it requested a declaration that the operation was a continuing trespass.
Further on June 3, 2008, the trial court denied plaintiffs' emergency motion for a temporary
restraining order. On June 26, 2008, plaintiffs filed a motion requesting certiorari review of the
Department's administrative decision allowing construction to begin on Tradition South and
requesting a stay of construction.
On October 20, 2008, after conducting evidentiary hearings, the trial court granted plaintiffs
a preliminary injunction against Bos. It found that all of the witnesses testified credibly at the hearing
but that plaintiffs' witnesses' testimony was more directly related to the issue of whether a nuisance
or trespass was likely to stem from the operation of the Tradition South dairy. In contrast, Bos's
witnesses were interested parties because they were employed by Bos for the project, and their
testimony was directed more toward compliance with the Livestock Act than the likelihood of
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nuisance or trespass from the facility's operation. The trial court found that: plaintiffs had made a
prima facie showing of a fair question about the existence of their claimed right not to be subject to
nuisance or trespass by the proposed dairy; groundwater contamination from the proposed facility
would constitute a substantial future harm; the facility presented a high probability of a public and
private nuisance by creating an environment injurious to the health and welfare of surrounding citizens
and the public at large; plaintiffs therefore had no adequate remedy at law and irreparable harm was
likely to result without a preliminary injunction; the circumstances led to a reasonable belief that
plaintiffs would be entitled to the relief sought; and the balance of hardships between Bos's right to
lawful use of his property and the health and safety of plaintiffs and the public favored the issuance
of a preliminary injunction. Bos was enjoined from operating a "concentrated proposed livestock
management facility" as defined by statute, stabling more then 199 cows, and using any aboveground
or in-ground waste storage structures or runoff holding ponds for livestock waste.
On December 3, 2008, plaintiffs added count VI to their complaint. Count VI was directed
at both defendants and sought declaratory judgments that the Tradition South dairy: was in violation
of the Environmental Protection Act (415 ILCS 5/1 et seq. (West 2008)), the Illinois Groundwater
Protection Act (415 ILCS 55/1 et seq. (West 2008)), and the Livestock Act and would constitute a
public nuisance. Plaintiffs further sought a declaration that the Department's decision allowing
construction of the facility was "unlawful, illegal and void." Plaintiffs also requested preliminary and
permanent injunctions enjoining Bos from constructing and operating the facilities.
On December 17, 2008, the Department filed a combined motion under section 2--619.1 of
the Code of Civil Procedure (Code) (735 ILCS 5/2--619.1 (West 2008)) to dismiss plaintiffs' claims
against it. The Department attacked the format of the complaint under section 2--615 of the Code
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(735 ILCS 5/2--615 (West 2008)), arguing that it alleged multiple causes of action in a single count.
The Department alternatively argued that the complaint should be dismissed under section 2--619 of
the Code (735 ILCS 5/2--619 (West 2008)) because plaintiffs lacked standing to bring their claims
against it. The Department referred to its contemporaneously filed response to plaintiffs' motion for
writ of certiorari. In the response, the Department argued that plaintiffs' request for certiorari should
be denied because it was brought as a motion rather than as a petition. The Department further
argued that plaintiffs lacked standing to challenge the Department's decision because they were not
parties to the administrative proceeding. Bos later joined in the Department's motion to dismiss.
On January 15, 2009, the trial court denied plaintiffs' motion for a writ of certiorari and granted
the Department's section 2--619 motion to dismiss the claims against it, contained in counts I and VI. As to
Bos, the trial court also granted the section 2--619 motion to dismiss counts I and VI, except it denied the
motion with respect to plaintiffs' request for a declaratory judgment that the dairy would constitute a public
nuisance. The trial court further granted the section 2--615 motion to dismiss the complaint but provided
plaintiffs leave to file an amended complaint.
Plaintiffs filed a three-count, first amended complaint on February 3, 2009. The complaint did not
name the Department as a defendant or list any claims against it. Count I contained largely the same
allegations as the original count, and it sought a declaratory judgment that the proposed livestock
facilities would constitute a public nuisance. Count II sought a declaratory judgment that the
proposed livestock facility would constitute a private nuisance, and count III sought a declaratory
judgment that the facility would constitute a continuing trespass. All three counts sought preliminary
and permanent injunctions enjoining Bos from constructing and operating the facility.
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Later in February 2009, Bos sought removal of the case to federal court on the basis that there
was a diversity in citizenship because the Department was no longer a party to the action. The federal
court denied removal on the ground that the counts against the Department were involuntarily
dismissed.
On May 13, 2009, Bos moved to dismiss the first amended complaint. On June 2, 2009, the
trial court orally granted the motion in part, and it gave plaintiffs leave to file a second amended
complaint. Plaintiffs filed that complaint on June 11, 2009. Plaintiffs' second amended complaint
renamed the Department as a defendant and added Traditions Investments, LLC, as a defendant.
Count I sought a declaratory judgment that the proposed facility (Tradition South) would constitute
a public nuisance; count II sought a declaratory judgment that it would constitute a private nuisance;
count III sought a declaratory judgment that it would constitute a continuing trespass; and count IV
sought preliminary and permanent injunctions enjoining Bos from constructing and operating the
dairy. Counts V and VI were listed as former counts I and VI of plaintiffs' original complaint. The
counts stated that they had been dismissed on January 15, 2009, and count VI specifically stated that
it was being repled for purposes of appeal.
On October 16, 2009, Bos filed a motion to dissolve the preliminary injunction, arguing that
plaintiffs' experts' claims were unsupported by fact and rose only to the level of speculation and
conjecture. The trial court denied the motion on November 10, 2009.
C. Trial
A trial on the permanent injunction took place from November 23, 2009, to December 10,
2009. We summarize the voluminous trial testimony in an unpublished portion of this opinion.
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D. Trial Court's Ruling
The trial court issued a written judgment on December 15, 2009, stating as follows. In order
to obtain a permanent injunction, plaintiffs had to prove by a preponderance of the evidence that it
was highly probable that the operation of Bos's livestock facility would constitute a public nuisance,
a private nuisance, or a trespass. Individual plaintiffs who testified expressed concern that the dairy
would emit light, noise, odor, dust, and other airborne particles, and would generate traffic, so as to
constitute a nuisance or trespass. Although their "allegations and concerns [may have been]
understandable, they [were] not competent evidence of prospective nuisance or trespass and [did] not
contribute to overcoming the burden of proof."
The trial court's judgment further stated that the competent evidence plaintiffs presented
showed that the gist of their claims was that the waste containment pond liners were inadequately
designed because they did not take into consideration that the proposed facility's site was underlain
by karst. Therefore, the contaminants would allegedly leak into the surface water, groundwater, and
an underlying aquifer, and move into plaintiffs' wells and public waterways. This evidence primarily
came from Samuel Panno and Peter Huettl. Numerous exhibits showed that Huettl relied heavily on
Panno's opinions to form his own opinions. However, on cross-examination, Panno admitted that
a site-specific investigation was needed for a thorough geological assessment of a site. Panno further:
"admitted that there were a number of tests which could have been performed which would
provide a more definitive indicator of the presence of karst, including ground water chemistry
evaluation, well monitoring, and dye tracing. These tests were not performed because of their
expense. Mr. Panno also admitted that he never examined rock corings from the site and
never sought bacterial well data for the area. He admitted that these things were not
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prohibitively expensive, he could have done them, and he should have done them as they
would have been informative as to the question of karst."
Plaintiffs' evidence was otherwise vague as to the specific types of alleged contaminants, their
concentrations, and their release mechanisms.
The trial court stated that in contrast, Bos's experts' opinions were based on regional and site-
specific investigations. David Trainor and Brett Naugle examined rock corings, and Naugle
considered well data. Naugle concluded that there was no evidence of karstified carbonate bedrock
at the site. Trainor concluded that the site did not have any karst features, the facility design would
protect the environment, and any releases from the waste holding ponds would be minimal and would
not migrate. The trial court concluded that Bos's evidence should be given greater weight, meaning
that plaintiffs did not prove by a preponderance of the evidence that it was highly probable that the
livestock facility would lead to a public or private nuisance, or trespass. The trial court therefore
entered judgment for Bos. Plaintiffs timely appealed.
II. ANALYSIS
We preliminarily address plaintiffs' motion, ordered taken with this case, to strike Bos's
statement of facts. Plaintiffs argue that, contrary to Supreme Court Rules 341(h)(6) and (i) (210 Ill.
2d Rs. 341(h)(6), (i)), Bos's statement of facts is argumentative and conclusory. While we agree that
Bos's recitation of facts contains some conclusory statements and highlights only evidence favorable
to Bos, the facts included are supported by the record and serve to supplement plaintiffs' two page
statement of facts in their appeal. Accordingly, we deny plaintiffs' motion.
A. Standing to Seek Review of Department's Administrative Decision
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Turning to the merits, plaintiffs first argue that they have standing to seek judicial review of
the Department's administrative act of finding that it was "more likely than not" that the Tradition
South facility met the Livestock Act's provisions, which allowed Bos to begin construction of the
dairy. Plaintiffs argue that at stake is their health, welfare, safety, property, and way of life, as well
as those of future generations. Plaintiffs maintain that they adequately alleged that allowing the dairy
would result in a specific, legally cognizable injury to their personal interests as well as to their
constitutional right to a healthful environment. Plaintiffs note that the Livestock Act provides that
it is the state's public policy to "maintain an economically viable livestock industry *** while
protecting the environment for the benefit of both the livestock producer and persons who live in the
vicinity of a livestock production facility." 510 ILCS 77/5(b) (West 2008). Plaintiffs argue that the
Department violated numerous statutory and regulatory requirements by approving Tradition South,
including, among others: that livestock waste handling facilities in a karst area be designed to prevent
seepage of stored material into groundwater (510 ILCS 77/13(b)(2) (West 2008)); minimum setback
distances (510 ILCS 77/35(c)(4) (West 2008)); that livestock management facilities not contain
streams within their boundaries (35 Ill. Adm. Code §501.402(a) (1991)); and that such facilities have
adequate odor control methods and technology so as not to cause air pollution (35 Ill. Adm. Code
§501.402(c)(3) (1991)).
Defendants argue that plaintiffs have forfeited their claims against the Department, because plaintiffs
amended their complaint after the counts against the Department were dismissed but did not reallege the
dismissed counts or name the Department as a party. The Department states that plaintiffs never served it
with any amended complaints, nor did it receive notice of any subsequent court hearings on the matter.
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Plaintiffs counter that their final amended complaint incorporated the claims dismissed by the trial court on
January 15, 2009, thereby preserving them for review.
The record shows that plaintiffs did not include the Department as a party in their first amended
complaint, nor did that complaint allege any claims against it. However, the record also shows that plaintiffs'
second amended complaint, which ended up being their final complaint, named the Department and
referenced the dismissed counts. Therefore, the question before us is whether plaintiffs forfeited their
claims against the Department by not including the Department in their first amended complaint, or whether
plaintiffs could preserve the claims by including the Department in their final amended complaint.
Our supreme court has stated that once a party files an amended pleading, he forfeits any objection
to the trial court's rulings on former complaints. Boatmen's National Bank of Belleville v. Direct Lines, Inc., 167
Ill. 2d 88, 99 (1995). Our supreme court has also stated that "[w]here an amendment is complete in itself and
does not refer to or adopt the prior pleading, the earlier pleading ceases to be a part of the record for
most purposes, being in effect abandoned and withdrawn." Bowman v. County of Lake, 29 Ill. 2d 268, 272
(1963). While these general propositions appear to support defendants' position, our supreme court has
also more directly stated that "allegations in former complaints, not incorporated in the final amended
complaint, are deemed waived." (Emphasis added.) Foxcroft Townhome Owners Ass'n v. Hoffman Rosner
Corp., 96 Ill. 2d 150, 155 (1983); see also Zurich Insurance Co. v. Baxter International, Inc., 173 Ill. 2d 235,
243 (1996) (appellate court erred in addressing issues not raised in the "final version" of the plaintiff's
complaint); Boatmen's National Bank of Belleville, 167 Ill. 2d at 99 (where the plaintiffs' "final amended
complaint" did not incorporate certain allegations, the plaintiffs waived objections to the trial court's dismissal
of prior complaints). In Foxcroft, our supreme court explained that the purpose of this rule is the efficient
and orderly administration of justice, in that the trial court can expect that a case will go to trial on
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the claims in the final amended complaint, thereby allowing it to be aware of the points in issue and
properly rule on trial objections. Foxcroft, 96 Ill. 2d at 154. Our supreme court stated that while a
defendant would be disadvantaged if a plaintiff were allowed to proceed to trial on different issues
in different complaints, there was "no undue burden in requiring a party to incorporate into its final
pleading all allegations which it desires to preserve for trial or review." (Emphases added.) Foxcroft, 96
Ill. 2d at 154. Accordingly, we conclude that by reincorporating the dismissed counts into their final
complaint, plaintiffs preserved them for review.
Although the Department argues that it never received service on the amended complaints or
subsequent proceedings, the Department has not cited any authority for the proposition that such service
was required for plaintiffs to preserve their claims, thereby forfeiting the argument for review. 210 Ill. 2d R.
341(h)(7); Hirsch v. Optima, Inc., 397 Ill. App. 3d 102, 108 (2009) (failure to cite authority results in forfeiture
of arguments). Bos cites Ryan v. School District No. 47, 267 Ill. App. 3d 137, 141-42 (1994), for the
proposition that plaintiffs were required to serve the Department with a new summons, but that case relates
to an amended complaint filed after a voluntary dismissal, which is not what occurred here.
The Department argues that even if plaintiffs preserved the claims they repled in the second
amended complaint, they did not replead a count seeking certiorari review of the Department's decision and
have therefore forfeited that issue on appeal. However, plaintiffs brought the certiorari request as a motion,
and the trial court ruled on it as a motion. When the trial court enters a final order, all prior nonfinal orders
become appealable (Hampton v. Cashmore, 265 Ill. App. 3d 23, 25 (1994)), and here plaintiffs specifically
referenced the denial of the motion for certiorari in their notice of appeal. Further, the motion requested
that the trial court rule that their complaint was legally sufficient to warrant treatment as a complaint for
certiorari. Even otherwise, courts have also held that a complaint improperly seeking review of an
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administrative decision under the Administrative Review Law (735 ILCS 5/3--101 et seq. (West 2008)) or
through a declaratory judgment should be treated as a petition for a writ of certiorari. Chicago Title Land
Trust Co. v. Board of Trustees, 376 Ill. App. 3d 494, 501 (2007). Accordingly, we conclude that plaintiffs
sufficiently preserved the certiorari issue for review.
Turning to the merits, defendants argue that plaintiffs lacked standing to seek administrative review
of the Department's decision because they were not parties of record in the administrative proceeding
before the Department. Lack of standing is an affirmative defense that the defendant has the burden to
plead and prove (Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 252 (2010)), and it may be asserted
in a motion to dismiss under section 2--619(a)(9) of the Code (735 ILCS 5/2--619(a)(9) (West 2008);
International Union of Operating Engineers, Local 148 v. Illinois Department of Employment Security, 215 Ill.
2d 37, 45 (2005)). We review de novo the grant of a motion to dismiss under section 2--619. Doe A.
v. Diocese of Dallas, 234 Ill. 2d 393, 396 (2009).
Plaintiffs challenge the Department's administrative decision that the Tradition South facility "more
likely than not" met the provisions of the Livestock Act, which entitled Bos to begin construction of the facility.
The Illinois Constitution gives courts jurisdiction to review administrative decisions "as provided by law." Ill.
Const. 1970, art. VI, §§6, 9. Whether a court may review an agency's action is a question of statutory
construction. Outcom, Inc. v. Illinois Department of Transportation, 233 Ill. 2d 324, 332 (2009). Often, the
agency's enabling statute expressly provides for review under the Administrative Review Law. Outcom, Inc.,
233 Ill. 2d at 333. If the enabling statute does not adopt the Administrative Review Law or provide for
another form of review, and the statute does not bar review or call for unreviewable agency discretion, review
may be obtained by a common-law writ of certiorari. Outcom, Inc., 233 Ill. 2d at 333. Here, the Livestock Act
does not provide for review under the Administrative Review Law but also does not limit review. The relevant
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administrative regulation states that the Department's decision of whether it is more likely than not that
the Livestock Act's provisions have been met becomes final on the date of the decision. 8 Ill. Adm.
Code §900.407(f), amended at 27 Ill. Reg. 18553, 18555, eff. November 25, 2003. It further states
that the "procedure for stay or reconsideration of any final Department decision by the Department
shall be as provided for in the Department's administrative rules." 8 Ill. Adm. Code §900.407(f),
amended at 27 Ill. Reg., 18553, 18555, eff. November 25, 2003. The relevant rule gives a
"respondent" 30 days from the date of the decision to request that the Department reconsider or stay
its decision. 8 Ill. Adm. Code §1.114 (1992). Thus, neither the Livestock Act nor the Department's
regulations provide for review under the Administrative Review Law or prohibit judicial review,
meaning that judicial review is possible through a writ of certiorari.
The Department does not dispute that certiorari review is applicable to its decision but rather
argues that plaintiffs do not have standing to seek review. We agree. The right to review
administrative decisions is limited to those who were both parties of record to the agency proceeding
and aggrieved by the agency's decision. Williams v. Department of Labor, 76 Ill. 2d 72, 78-79
(1979); Kemp-Golden v. Department of Children & Family Services, 281 Ill. App. 3d 869, 873-77
(1996) (mother of child who was allegedly abused by his father did not have standing to seek judicial
review of agency's decision to expunge the "indicated" report of abuse against the father, even though
the mother testified at the administrative hearing). Here, nothing in the Livestock Act gives plaintiffs
status as parties of record. Plaintiffs argue that such a restriction is limited to review under the
Administrative Review Law. However, "[c]ircuit courts 'do not possess greater authority to review
actions by agencies whose final decisions are reviewable through common-law methods than the
courts have when statutory procedures apply,' " and the standards of review are "essentially the
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same." Outcom, Inc., 233 Ill. 2d at 336-37, quoting Dubin v. Personnel Board, 128 Ill. 2d 490, 498
(1989). Thus, the standing requirement would be the same whether the agency decision were reviewed
under the Administrative Review Law or pursuant to a writ of certiorari.
Plaintiffs rely on Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462 (1988), to support
standing. There, the plaintiffs filed suit against the Illinois Housing Development Authority (IHDA) for
approving mortgage financing for a housing rehabilitation project. Greer, 122 Ill. 2d at 470-71. They alleged
that the approval violated the IHDA's statutory duty to promote economic heterogeneity. Greer, 122 Ill. 2d
at 485. The IHDA argued that the plaintiffs lacked standing to challenge its funding of the project and its
approval of the tenant-selection plan. Greer, 122 Ill. 2d at 487. The supreme court disagreed, stating that
"standing in Illinois requires only some injury in fact to a legally cognizable interest," which the plaintiffs
satisfied by alleging a diminution in their property values. Greer, 122 Ill. 2d at 492-94. Plaintiffs here argue
that they similarly alleged a decrease in property values, as well as injury to other legally cognizable interests.
However, Greer is distinguishable from this case because it involved a "nonadjudicatory administrative
decision[]" (Greer, 122 Ill. 2d at 501) by a "body politic and corporate" (Greer, 122 Ill. 2d at 477) rather than
an agency's quasi-judicial decision as to whether a party has satisfied specific statutory factors. That is,
nothing in Greer overruled the general requirement that a party seeking review of an agency's decision (which
is typically quasi-judicial) must have been a party of record to the agency's proceeding and aggrieved by the
agency's decision. See Williams, 76 Ill. 2d at 78-79.
Plaintiffs also cite article XI of the Illinois Constitution (Ill. Const. 1970, art. XI). Section 1 of article
XI provides that it is the state's public policy and each person's duty "to provide and maintain a healthful
environment for the benefit of this and future generations. The General Assembly shall provide by law for
the implementation and enforcement of this public policy." Ill. Const. 1970, art XI, §1. Section 2 states, "Each
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person has the right to a healthful environment. Each person may enforce this right against any party,
governmental or private, through appropriate legal proceedings subject to reasonable limitation and
regulation as the General Assembly may provide by law." Ill. Const. 1970, art. XI, §2. While section 2 refers
to individuals being able to enforce their right to a healthful environment, that section did not create any new
causes of action but instead eliminated the need to show a special injury as is traditionally required in
environmental nuisance cases. City of Elgin v. County of Cook, 169 Ill. 2d 53, 85 (1995); see also Glisson v.
City of Marion, 188 Ill. 2d 211, 228 (1999). Thus, article XI does not provide plaintiffs with an independent
basis to seek review of the Department's decision. See NBD Bank v. Krueger Ringier, Inc., 292 Ill.
App. 3d 691, 698 (1997) (the plaintiffs could not bring an environmental claim under the Illinois
Constitution alone but rather needed a cognizable cause of action).
Plaintiffs further argue that they are entitled to a declaration of their rights with respect to the
Department's administrative decision that Tradition South "more likely than not" met the Livestock Act's
provisions. A declaratory judgment action requires: (1) a plaintiff with a tangible, legal interest; (2)
a defendant with an opposing interest; and (3) an actual controversy between the parties concerning
such interests. 735 ILCS 5/2--701 (West 2008); Country Mutual Insurance Co. v. D&M Tile, Inc., 394 Ill.
App. 3d 729, 733 (2009). However, a writ of certiorari, rather than a declaratory judgment action, is the
proper means to challenge an administrative decision to which the Administrative Review Law does not apply.
Chicago Title Land Trust Co., 376 Ill. App. 3d at 501; Alicea v. Snyder, 321 Ill. App. 3d 248, 252-53 (2001).
Regardless, the court's authority to review an agency's decision would be the same whether the review were
through a declaratory judgment or a writ of certiorari (Outcom, Inc., 233 Ill. 2d at 336-37, and we have
determined that plaintiffs do not have standing to seek such review.
B. Implied Right of Action
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Plaintiffs argue that if parties like them cannot enforce the legislative limitations on the Department's
ability to grant permits to construct livestock facilities like the proposed megadairy, nobody can. We examine
this argument in conjunction with plaintiffs' argument that a private right of action may be implied under the
Livestock Act against both Bos and the Department.
This court has said that the Livestock Act does not contain any mechanism to prevent or punish
violations of its provisions, nor did it create any remedy, either public or private, for such violations. Nickels
v. Burnett, 343 Ill. App. 3d 654, 661 (2003). This statement is not accurate to the extent that the Livestock
Act does provide for various penalties, including monetary penalties and orders to cease operation, for:
beginning construction without filing notice with the Department (510 ILCS 77/11(d) (West 2008)); failing to
construct a livestock waste lagoon in accordance with the construction plan and Department
recommendations (510 ILCS 77/15(f) (West 2008)); violating waste lagoon inspection requirements (510 ILCS
77/16 (West 2008)); not reporting the release of 25 gallons or more of animal waste into the water (510 ILCS
77/18 (West 2008)); failing to prepare and maintain a waste management plan (510 ILCS 77/20(g) (West
2008)); and violating odor control requirements (510 ILCS 77/25 (West 2008)).
It is true that the Livestock Act contains no explicit language providing a private remedy. Still, a
private right of action may be implied from a statute if: (1) the plaintiff is a member of the class for
whose benefit the legislature enacted the statute; (2) the statute was designed to prevent the plaintiff's
injury; (3) a private right of action is consistent with the statute's underlying purpose; and (4) implying
a private right of action is necessary to provide an adequate remedy for violations of the statute.
Fisher v. Lexington Health Care, Inc., 188 Ill. 2d 455, 460 (1999). A court should use caution in
implying a private right of action, because, in doing so, it is assuming the policy-making authority
more appropriately exercised by the legislature. Moore v. Lumpkin, 258 Ill. App. 3d 980, 989
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(1994). In determining whether a private right of action exists, we focus primarily on the legislature's
intent in enacting the statute, which is best ascertained from the statute's language. Moore, 258 Ill.
App. 3d at 989. The interpretation of a statute is a question of law, which we review de novo. In
re J.L., 236 Ill. 2d 329, 339-40 (2010).
Section 5 of the Livestock Act is entitled "Policy" and states:
"(a) The General Assembly finds the following:
(1) Enhancements to the current regulations dealing with livestock production
facilities are needed.
(2) The livestock industry is experiencing rapid changes as a result of many
different occurrences within the industry including increased sophistication of
production technology, increased demand for capital to maintain or expand
operations, and changing consumer demands for a quality product.
(3) The livestock industry represents a major economic activity in the Illinois
economy.
(4) The trend is for larger concentration of animals at a livestock management
facility due to various market forces.
(5) Current regulation of the operation and management of livestock
production is adequate for today's industry with a few modifications.
(6) Due to the increasing numbers of animals at a livestock management
facility, there is a potential for greater impacts on the immediate area.
(7) Livestock waste lagoons must be constructed according to standards to
maintain structural integrity and to protect groundwater.
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(8) Since a majority of odor complaints result from manure application,
livestock producers must be provided with an educational program that will enhance
neighbor awareness and their environmental management skills, with emphasis on
management of livestock wastes.
(b) Therefore, it is the policy of the State of Illinois to maintain an economically viable
livestock industry in the State of Illinois while protecting the environment for the benefit of
both the livestock producer and persons who live in the vicinity of a livestock production
facility." (Emphasis added.) 510 ILCS 77/5 (West 2008).
We initially note that a case relied on by plaintiffs, Citizens Opposing Pollution v. ExxonMobil
Coal U.S.A., No. 5--09--0207 (September 24, 2010), is not helpful to our analysis. There, the
appellate court held that the trial court erred in dismissing a count on the basis that the Water Use
Act of 1983 (Water Use Act) (525 ILCS 45/1 et seq. (West 2008)) provided no private right of
action, because section 8.05 of the Surface Coal Mining Land Conservation and Reclamation Act
(225 ILCS 720/8.05 (West 2008)), also at issue in the case, specifically allowed for such enforcement
actions. Citizens Opposing Pollution, slip op. at 18. But here, the Livestock Act does not explicitly
provide for a private right of action.
We now consider the four factors to determine whether a private right of action may be
implied in light of section 5 in conjunction with the entire Livestock Act. Regarding the first factor,
plaintiffs are members of a class for whose benefit the statute was enacted, in that the statute's policy
provision specifically references protecting the environment for the benefit of people living near the
livestock facility. Still, this factor is tempered in that this is not the only class the legislature intended
the statute to benefit; the legislature also sought to protect the environment for the livestock
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producer's benefit. Regarding the second factor, the types of injuries that plaintiffs allege will occur,
such as groundwater contamination and excessive odors, are the types of injuries that the Livestock
Act was designed to prevent. However, on the third factor, implying a private right of action is not
consistent with the statute's underlying purpose. "Where broad discretion is given to an agency, it
negates the implication that there was legislative intent to create a private right of action." Moore,
258 Ill. App. 3d at 996. The Livestock Act gives citizens some input through informational meetings
but ultimately gives the Department the discretion to determine whether is it more likely than not that
the statutory provisions have been met, as required for construction of the livestock facility to
commence. See 510 ILCS 77/12.1 (West 2008). Inspections and violation determinations are also
left to the Department. Implying a private right of action would strongly undermine the Department's
authority, contrary to the legislature's intent. See Moore, 258 Ill. App. 3d at 998 ("an implied private
right of action is inconsistent with the legislature's purpose to establish a regulatory scheme [to
protect against contagious diseases] under the direction of the Department of Public Health").
We similarly conclude that the fourth factor is not satisfied. A private right of action will be
implied only where there is a clear need to uphold and implement the public policy of the statute by
providing an adequate remedy for a violation of the statute. Abbasi v. Paraskevoulakos, 187 Ill. 2d
386, 393 (1999); see also Fisher, 188 Ill. 2d at 464 (a private right of action will be implied only
where the statute would, as a practical matter, otherwise be ineffective). Here, livestock operators
are subject to the fines discussed earlier, as well as orders to cease operations, for violations of the
Livestock Act's provisions. See Rekosh v. Parks, 316 Ill. App. 3d 58, 74 (2000) (the Funeral
Directors and Embalmers Licensing Code (225 ILCS 41/1--1 et seq. (West 1998)) provided for
disciplinary actions and fines, so its remedies were not so deficient as to require implying a private
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right of action); NBD Bank, 292 Ill. App. 3d at 697 (the Illinois Environmental Protection Act (415
ILCS 5/1 et seq. (West 1996)) provided for prosecution by the State and allowed contribution claims
against third-party violators, so there was no need to imply a private right of action).
Further, the Livestock Act specifically states that nothing in it "shall be construed as a
limitation or preemption of any statutory or regulatory authority under the Illinois Environmental
Protection Act [(415 ILCS 5/1 et seq. (West 2008))]." 510 ILCS 77/100 (West 2008). We have
recognized that the Livestock Act does not preempt other statutory and common-law causes of
action, such as nuisance. Nickels, 343 Ill. App. 3d at 661. Thus, while the Livestock Act does not
allow an individual to file suit in an attempt to enforce its provisions, it also does not prohibit the
individual from using other statutory or common-law causes of action to challenge the construction
of a livestock facility. Our supreme court has held that where a common-law action effectively
implemented a statute's underlying policy, a private right of action was unnecessary. See Abbasi, 187
Ill. 2d at 395-96 (a common-law negligence action effectively implemented the policy behind the Lead
Poisoning Prevention Act (410 ILCS 45/1 et seq. (West 1996)), so it was not necessary to imply a
private right of action).
As this court recognized, a party attempting to construct a livestock facility "could gain
complete Departmental approval and permission in his endeavors, and yet still have those endeavors
halted *** should his operations run afoul of other statutory or common-law prohibitions." Nickels,
343 Ill. App. 3d at 661-62. That is precisely what occurred here, as in spite of the Department's
approval allowing Bos to begin construction, plaintiffs were able to pursue their common-law claims
against Bos, obtain a preliminary injunction effectively preventing construction of the livestock
facility, and have a full trial on their right to a permanent injunction. Based on the penalties the
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Livestock Act provides for noncompliance and the availability of related common-law actions, a
private right of action is not necessary as an enforcement mechanism for the Livestock Act.
Plaintiffs relatedly argue that the trial court failed to consider violations of numerous statutory
and regulatory provisions as evidence of statutory nuisance. Plaintiffs' argument is without merit,
as the trial court allowed evidence related to statutory and regulatory requirements as evidence of the
standard of care required. We consider the trial court's final ruling in conjunction with plaintiffs'
argument that its decision was against the manifest weight of the evidence.
C. Evidentiary Rulings
Plaintiffs next challenge a number of the trial court's evidentiary rulings. They argue that the
trial court erred in: (1) refusing to allow into evidence public records and Illinois State Geological
Survey records; (2) refusing to allow plaintiffs to read Bos's sworn answers to interrogatories into
evidence; (3) refusing to allow plaintiffs' rebuttal evidence; (4) excluding plaintiffs' expert medical
evidence; (5) not considering plaintiffs' lay opinion evidence as competent to contribute toward
overcoming the burden of proof; and (6) refusing to allow evidence from the hearing on the
preliminary injunction at the hearing on the permanent injunction. We discuss these evidentiary
rulings in an unpublished portion of this opinion.
D. Trial Court's Denial of Permanent Injunction
Plaintiffs' final argument is that the trial court's ruling denying them a permanent injunction
is against the manifest weight of the evidence. A party seeking a permanent injunction, which serves
to maintain the status quo indefinitely (Alpha School Bus Co. v. Wagner, 391 Ill. App. 3d 722, 743-
44 (2009)), must show that he has a clear and ascertainable right that needs protection, there is no
adequate remedy at law, and he will suffer irreparable harm if injunctive relief is not granted (Kopchar
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v. City of Chicago, 395 Ill. App. 3d 762, 772 (2009)). A court considering injunctive relief should
also balance the equities. County of Kendall v. Rosenwinkel, 353 Ill. App. 3d 529, 538 (2004). It
is the trier of fact's role to resolve conflicts in the evidence, assess witnesses' credibility, and
determine the weight to be given to their testimony. Prairie Eye Center, Ltd. v. Butler, 329 Ill. App.
3d 293, 298-99 (2002). A trial court's factual findings will not be reversed unless they are against
the manifest weight of the evidence. Prairie Eye Center, Ltd., 329 Ill. App. 3d at 299. We typically
apply the abuse-of-discretion standard to review a trial court's decision of whether to grant a
permanent injunction. See Rosenwinkel, 353 Ill. App. 3d at 541. But cf. O'Donnell v. City of
Chicago, 363 Ill. App. 3d 98, 104 (2005) (issuance of a permanent injunction is generally reviewed
under a manifest-weight-of-the-evidence standard). However, where a trial court's decision regarding
a permanent injunction is based on pure questions of fact, such as here, we will not reverse its
decision unless it is against the manifest weight of the evidence. Hasco, Inc. v. Roche, 299 Ill. App.
3d 118, 126 (1998).
Plaintiffs alleged claims of public nuisance, private nuisance, and trespass. Regarding public
nuisance, plaintiffs cite section 47--5(3) of the Criminal Code of 1961 (720 ILCS 5/47--5(3) (West
2008)), which states that it is a public nuisance to "corrupt or render unwholesome or impure the
water of a spring, river, stream, pond, or lake to the injury or prejudice of others." Plaintiffs argue
that they alleged and established that the dairy would constitute a public nuisance in violation of
section 47--5(3) by leaking substantial amounts of animal waste into the groundwater and corrupting
the water of a stream. Bos rightly points out that only the State's Attorney may prosecute public
nuisances as criminal offenses. Jamison v. City of Zion, 359 Ill. App. 3d 268, 272 (2005). However,
plaintiffs would still have a common-law claim of public nuisance. Donaldson v. Central Illinois
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Public Service Co., 199 Ill. 2d 63, 101 (2002), overruled on other grounds, In re Commitment of
Simons, 213 Ill. 2d 523, 530 (2004).
A public nuisance is something that negatively affects the public's health, safety, or morals,
or causes substantial annoyance, inconvenience, or injury to the public. Village of Wilsonville v. SCA
Services, Inc., 86 Ill. 2d 1, 21-22 (1981). The elements of public nuisance are: (1) the existence of
a public right; (2) the defendant's substantial and unreasonable interference with that right; (3)
proximate cause; and (4) injury. City of Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351, 369
(2004). A private nuisance is the substantial invasion of a person's interest in the use and enjoyment
of his land. In re Chicago Flood Litigation, 176 Ill. 2d 179, 204 (1997). The invasion must be
substantial, intentional or negligent, and unreasonable. In re Chicago Flood Litigation, 176 Ill. 2d at
204. Whether particular conduct constitutes a nuisance is determined by the conduct's effect on a
reasonable person. In re Chicago Flood Litigation, 176 Ill. 2d at 204. A "nuisance must be physically
offensive to the senses to the extent that it makes life uncomfortable." Dobbs v. Wiggins, 401 Ill.
App. 3d 367, 375-76 (2010).
Here, the alleged nuisance was prospective because the dairy had not yet been built. A
plaintiff may seek injunctive relief for a prospective nuisance. Village of Wilsonville, 86 Ill. 2d at 25.
A " 'defendant may be restrained from entering upon an activity where it is highly probable that it will
lead to a nuisance, although if the possibility is merely uncertain or contingent he may be left to his
remedy after the nuisance has occurred.' " Village of Wilsonville, 86 Ill. 2d at 26, quoting W. Prosser,
Torts §90, at 603 (4th ed. 1971). The plaintiff must show by a preponderance of the evidence that
the defendant's operation is a prospective nuisance. Village of Wilsonville, 86 Ill. 2d at 14.
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The type of invasion that constitutes a nuisance differs from the type of invasion that
constitutes a trespass. " 'A nuisance is an interference with the interest in the private use and
enjoyment of the land, and does not require interference with the possession' " whereas a " 'trespass
is an invasion of the interest in the exclusive possession of land, as by entry upon it.' " In re Chicago
Flood Litigation, 176 Ill. 2d at 204, quoting Restatement (Second) of Torts §821D, Comment d, at
101 (1979). Trespass can occur through a negligent or an intentional act. Lyons v. State Farm Fire
& Casualty Co., 349 Ill. App. 3d 404, 410 (2004).
As the trial court pointed out, plaintiffs' claims were largely based on allegations that, if the
Tradition South dairy were allowed to be constructed and operated according to Bos's plans,
contaminants from the livestock waste holding ponds would leak through the clay liners to karstified
carbonate bedrock below, reaching the groundwater and aquifer below the ponds and polluting
plaintiffs' wells and the public waterways. Peter Huettl provided expert testimony regarding the
permeability of the clay liner and the soil underneath the liner. However, he admitted that he believed
that it was never appropriate to use an unprotected clay liner for an animal waste holding pond, and
he acknowledged that he had been involved in the design of only two animal waste containment liners.
He also testified that he did not do a site-specific analysis or take into account information from the
three test pits on the site. Most importantly, Huettl testified that he relied on Samuel Panno's reports
in forming his opinion that the waste material would reach the groundwater, thus making Panno's
testimony that there was karstified carbonate bedrock below the Tradition South site a crucial
component of plaintiffs' case.
Panno testified that his opinion was based on LiDAR (laser) imagery, examination of aerial
photographs, and field investigations. He used the LiDAR imagery to find linear features that could
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indicate fractures in the carbonate rock, and he testified that one lineament went through a waste
holding pond. However, Panno admitted that lineaments were just an interpretative tool to indicate
where to look for more information. Panno testified that one aerial photograph showed what
appeared to be a spring on the site, but he admitted that he did not know for sure what it was and that
LiDAR imagery and aerial photographs from the 1940s did not show that surface feature. The
information Panno relied on from his field investigations largely came from areas outside of the
proposed dairy site, and nothing was tied directly to the footprints of the waste holding ponds.
Panno further testified that water tests of the area well showed elevated levels of sodium
chloride, which could indicate the susceptibility of the karst aquifer, but he admitted that similar levels
of sodium chloride had been found in wells in non-karst areas. He also agreed that in karst areas
there was a causal connection between septic systems and wells contaminated with bacteria, but he
did not test the wells near the proposed dairy for bacteria, even though it would have been a "good
idea." Notably, lay witness testimony indicated that the well water was currently potable, with no
known bacterial contaminations. Panno also admittedly did not perform many tests for karst that he
thought Bos should have done, such as measuring stream flow, performing groundwater chemistry
evaluations, installing monitoring wells, and conducting dye tracing. He did not look at rock corings
from the site even though he admitted that it would not have been costly and that he probably should
have. Panno also acknowledged that a karst hydrologist performed a chemistry test from flowing
water on the site but found no evidence of karstified carbonate bedrock. Panno agreed that the most
appropriate way to determine the suitability of a site for a proposed use required a site-specific
analysis, which he did not do here.
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Plaintiffs also relied on the preliminary-injunction-hearing transcript of Lester Johnson's
testimony, but that testimony also lacked in-depth site-specific considerations. Johnson opined that
dye tracing was the best method for determining the presence of karst, and it is undisputed that
plaintiffs did not do such a test here. C. Pius Weibel testified in rebuttal that weathered or highly
weathered limestone was present in five of the rock corings and one of the borings, and the presence
of such limestone at that depth meant that the bedrock was karstic. However, Panno contradicted
this testimony when he stated that not all highly weathered limestone or fractured carbonate bedrock
was karstified carbonate bedrock.
In addition to the types of sources relied on by plaintiffs' experts, Bos's expert Brett Naugle
observed the actual rock coring process and analyzed the corings. He further lab-tested them and
determined that the rock materials were not limestone. Bos's expert David Trainor also looked at the
corings and considered information from the excavation of the ponds. Plaintiffs argue that Trainor
testified, among other things, that: the soil borings showed different types of soil under the holding
ponds; the drain systems were designed to drain into a stream that leads to the Apple River; and it
is not prudent engineering practice to locate a manure pond on top of a stream. However, Trainor
testified on redirect examination that although the soils from the borings were different, they were
uniform because the material was clay and generally the same across the entire footprint. He also
testified that the perimeter drain system was designed to carry liquid from where the water table
broke out of the ground, rather than directly from the ponds themselves. Regarding an alleged stream
on top of the waste holding pond, Terry Feldman testified that there was a tile-fed ditch3 in the
3
As we stated in an unpublished portion of this opinion, agricultural drain tile is sometimes
used to allow rainwater to flow off of land. See McGoey v. Brace, 395 Ill. App. 3d 847, 852 (2009).
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footprint of one of the containment ponds. He also testified that Bos had received permission to
move the ditch, and when construction was completed, no portion of the ditch would remain in the
pond's footprint.
At oral argument, plaintiffs argued that, geologically, karst is a regional concept and extends
from the Mississippi River to Freeport. Plaintiffs maintained that when the legislature enacted the
Livestock Act, it intended that additional safety precautions be taken in karst areas. According to
plaintiffs, karst is not a site-specific concept, and drilling a few three-inch tubes into some portions
of the site is not sufficient to verify the site's safety. Plaintiffs argued that Map 8 shows that all of Jo
Daviess County is in a karst region and that therefore one has to build according to karst standards,
including using steel for waste pond liners.
The very regulations that plaintiffs rely on defeat their argument here. The regulations refer
to sinkhole areas on Map 8 as automatically requiring additional inspections and tests, rather than
heightening requirements for everything in a "karst region" on Map 8, which would include all of Jo
Daviess County. 35 Ill. Adm. Code §506.302(g) (Conway Greene CD-ROM June 2002). The
proposed dairy is not in a sinkhole area on Map 8. The regulations also require additional inspections
and tests if the soil sampling results "indicate the proposed livestock waste handling facility is to be
located in a karst area." 35 Ill. Adm. Code §506.302(g) (Conway Greene CD-ROM June 2002). The
reliance on limited sinkhole areas and site-specific sampling shows that the Department was not using
large-scale regional designations to define karst areas. Even if it were, every livestock waste handling
facility in a karst area does not necessarily have to be made of steel or concrete, as the owner or
operator may seek to "modify" the standards if the modification protects the ground and surface
water and the structural integrity of the waste facility. 35 Ill. Adm. Code §506.312(c), amended at
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25 Ill. Reg. 14883, eff. November 15, 2001. Notably, even Panno agreed that a site-specific analysis
is the best way to determine a site's suitability for a proposed use.
In the end, the trial court was faced with testimony from credentialed, experienced experts
who arrived at opposite conclusions as to whether there was evidence of karstified carbonate bedrock
on the proposed dairy site. As stated, it is the trier of fact's role to resolve conflicts in the evidence,
assess witnesses' credibility, and determine the weight to be given to their testimony. Prairie Eye
Center, Ltd., 329 Ill. App. 3d at 298-99. The record supports the trial court's finding that Bos's
expert witnesses, unlike plaintiffs' expert witnesses, conducted more site-specific analysis in arriving
at their conclusions that there was no evidence of karstified carbonate bedrock below the containment
ponds. Accordingly, we cannot say that the trial court's decision, that plaintiffs failed to show that
there was a high probability of groundwater contamination and were not entitled to a permanent
injunction on that basis, is against the manifest weight of the evidence.
Plaintiffs argue that there was evidence that toxic silage leachate has invaded and will continue
to invade Steve Holesinger's property. Holesinger testified that a stream from the proposed dairy's
leachate containment pond entered the stream running through his property. Huettl testified that
silage leachate was overflowing from its containment pond area and creating an erosion gully.
However, plaintiffs' evidence on this issue was based purely on visual observation, and there was no
testing to show that the alleged overflow contained silage leachate or if so, in what concentration.
Accordingly, the trial court's failure to find that plaintiffs had proven trespass from toxic silage
leachate is not against the manifest weight of the evidence.
Plaintiffs also argue that Holesinger's residence is within 2,490 feet of the proposed dairy,
contrary to the Livestock Act's minimum setback distance for an occupied residence. To any extent
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that the setback distances are arguably relevant to plaintiffs' nuisance claims, we address this issue.
As stated, the construction of a statute is a question of law, which we review de novo. In re J.L., 236
Ill. 2d at 340. The primary rule of statutory construction is to give effect to the legislature's intent,
which is best determined by the statutory language's plain and ordinary meaning. In re J.L., 236 Ill.
2d at 339. Under the Livestock Act, a livestock facility that has 50 or more but less than 1,000
animal units must maintain a minimum setback distance of one-quarter of a mile from the nearest
occupied residence. 510 ILCS 77/35(c)(3) (West 2008). One mile is 5,280 feet (Webster's Third
New International Dictionary 1433 (1986)), so one-quarter of a mile is 1,320 feet. For a livestock
facility that has 1,000 or more but less than 7,000 animal units, the minimum setback for an occupied
residence "shall be increased 220 feet over the minimum setback of ¼ mile for each additional 1,000
animal units over 1,000 animal units." 510 ILCS 77/35(c)(4)(B) (West 2008). In this case, Tradition
South planned to have 6,850 animal units. This number consists of 5 "additional 1,000 animal units
over 1,000 animal units," so the setback would be one-quarter of a mile (1,320 feet) plus 5 x 220 feet
(1,100 feet). Thus, the total required setback from an occupied residence would be 2,420 feet,
meaning that Holesinger does not live within the minimum setback distance.
We further conclude that the trial court's finding that plaintiffs did not prove prospective
nuisance or trespass through individual plaintiffs' testimony about light, noise, traffic, and air pollution
is also not against the manifest weight of the evidence. Plaintiffs expressed concerns about these
issues but provided few, if any, facts to overcome their burden of proof. They also sought to
introduce expert testimony through Doctors Gorelick and Netzel on harmful emissions that the dairy
would emit, but the trial court sustained Bos's objection to their qualifications to offer such testimony,
and we conclude that it did not abuse its discretion in doing so. Plaintiffs did testify about their
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familiarity with cow odors from living on or near farms and/or owning cows themselves. In an
agriculturally zoned area, homeowners should reasonably expect some odors consistent with
agricultural operations. See Woods v. Khan, 95 Ill. App. 3d 1087, 1090 (1981). Still, agricultural
smells can reach a point where they overwhelmingly interfere with homeowners' rights to enjoy their
property. See Woods, 95 Ill. App. 3d at 1090. Here, plaintiffs' testimony regarding odors was based
on small-scale dairies and did not take into account the manner in which Bos planned to process the
animal waste, including use of an anaerobic digester4 and holding ponds, or Bos's odor control plan,
which included planting trees. Accordingly, the trial court's denial of an injunction based on odors
was also not against the manifest weight of the evidence.
E. Bos's Appeal
We now move on to Bos's appeal, which has been consolidated with plaintiffs' appeal. Bos
argues that the trial court erred in denying his motion to dissolve the preliminary injunction halting
construction of Tradition South. Bos argues that he is therefore entitled to damages under section
11--110 of the Code (735 ILCS 5/11--110 (West 2008)), which allows the court to assess damages
for the wrongful issuance of a temporary restraining order or a preliminary injunction. Bos argues
that the trial court should have granted his motion because plaintiffs grossly overstated their case at
the preliminary stages, withheld exculpatory evidence from the trial court, "and successfully
maintained their charade until *** Bos could undo it through discovery, the use of the Freedom of
Information Act, and cross-examination at trial." Bos argues that the true issue on appeal is not
4
As stated in an unpublished portion of this opinion, an anaerobic digester is an airless tank
in which bacteria break down organic waste, such as manure, and produce methane as a byproduct.
See Joseph Oat Holdings, Inc. v. RCM Digesters, Inc., 665 F. Supp. 2d 448, 451 n.2 (D.N.J. 2009).
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whether the trial court itself erred in making its underlying rulings, but rather whether plaintiffs should
bear the costs associated with their conduct.
Before addressing the merits of Bos's appeal, we consider plaintiffs' motion to dismiss, which
we ordered taken with this case. Plaintiffs argue that we should dismiss Bos's appeal pursuant to the
Citizen Participation Act (Act) (735 ILCS 110/1 et seq. (West 2008)). The purpose of the Act is to
counter " 'Strategic Lawsuits Against Public Participation' " (SLAPPs), which have been used "as a
means of intimidating, harassing, or punishing citizens and organizations for involving themselves in
public affairs." 735 ILCS 110/5 (West 2008). The Act's purpose is to eliminate SLAPPs and protect
citizen participation in public affairs by: (1) immunizing individuals from lawsuits based on acts taken
in furtherance of their rights to free speech and to petition government; (2) creating an accelerated
legal process to dispose of SLAPPs; and (3) providing attorney fees and costs to parties who prevail
on motions under the Act. Wright Development Group, LLC v. Walsh, No. 109463, slip op. at 9-10
(October 21, 2010).
Bos argues, among other things, that: (1) plaintiffs forfeited any reliance on the Act because
they did not raise the issue in the trial court, and (2) the Act does not allow plaintiffs to initiate such
a motion in the appellate court. We agree. Generally, a party who does not raise an issue in the trial
court forfeits the issue and may not raise it for the first time on appeal. In re Marriage of Culp, 399
Ill. App. 3d 542, 550 (2010); see also Enterprise Recovery Systems, Inc. v. Salmeron, 401 Ill. App.
3d 65, 76 (2010) (motion under the Act was an affirmative defense, and the defendant could not raise
the defense in the trial court after judgment was entered). Moreover, the Act does not contemplate
a party bringing the motion for the first time on appeal. The Act refers to discovery and a hearing
and decision on the motion within 90 days, as well as to a clear and convincing standard for ruling
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on the motion. 735 ILCS 110/20 (West 2008). These procedural mechanisms and the evidentiary
standard clearly pertain to the trial court rather than the appellate court. See Koffski v. Village of
North Barrington, 241 Ill. App. 3d 479, 483 (1993) (a party "should not be permitted to utilize a
procedural mechanism enacted by the legislature and designed for use in the trial court as a means
to obtain the dismissal of an appeal"). Accordingly, we deny plaintiffs' motion to dismiss.
Plaintiffs further argue that we lack jurisdiction over Bos's appeal because Bos did not timely
file a notice of appeal. Bos filed the motion to dissolve the preliminary injunction on February 6,
2009, and he filed a supporting memorandum on October 16, 2009. The trial court denied Bos's
motion to dissolve the preliminary injunction on November 10, 2009, and Bos filed a notice of
interlocutory appeal on December 10, 2009, within the 30-day period required under Supreme Court
Rule 307(a) (Official Reports Advance Sheet No. 7 (April 8, 2009), R. 307(a), eff. March 20, 2009).
Plaintiffs base their jurisdictional argument on responses Bos filed in November and December 2008
to motions filed by two separate groups of former individual plaintiffs who sought to voluntarily
dismiss themselves from the case. Bos objected to the dismissal of those plaintiffs on the ground that
he would otherwise have a statutory right to damages against them if the preliminary injunction were
later dissolved.5 He also argued that voluntary dismissal would constitute an automatic dissolution
of the preliminary injunction. In his prayers for relief, Bos requested that if the trial court granted the
motions for voluntary dismissal, it also dissolve the preliminary injunction and award him damages.
Because the trial court granted the motions for voluntary dismissal, plaintiffs argue that the trial court
5
In a memorandum in support of a request for bond, Bos asserted damages of $15,000 to
$16,000 per day in lost sales; $1.2 million from prepurchased animal feed; and demobilization costs
of over $20,000.
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implicitly denied Bos's requests to dissolve the preliminary injunction and that the denial was
appealable at that time.
Plaintiffs' argument is without merit. Bos's 2008 requests to dissolve the preliminary
injunction were made in response to motions for voluntary dismissal filed by individual plaintiffs, and
the trial court granted the motions without comment on whether Bos was entitled to dissolution of
the preliminary injunction. Accordingly, Bos could not have sought review of the issue at that time.
Rather, he appropriately and timely appealed from the trial court's November 2009 order explicitly
denying his actual motion to dissolve the preliminary injunction.
Plaintiffs also argue that Bos's appeal is moot because the ruling on the preliminary injunction
merged into the ruling on the permanent injunction, and the preliminary injunction can no longer be
dissolved. See Keefe-Shea Joint Venture v. City of Evanston, 364 Ill. App. 3d 48, 60 (2005) ("[a]n
interlocutory injunction becomes functus officio when the case is disposed of on the merits"); Puleo
v. McGladrey & Pullen, 315 Ill. App. 3d 1041, 1044 (2000) (preliminary injunctions are limited in
duration and do not extend beyond the conclusion of the action). "An appeal is considered moot
where it presents no actual controversy or where the issues involved in the trial court no longer exist
because intervening events have rendered it impossible for the reviewing court to grant effectual relief
to the complaining party." In re J.T., 221 Ill. 2d 338, 349-50 (2006).
Here, Bos filed a motion to dissolve the preliminary injunction because, among other things,
he sought to obtain damages under section 11--110. Such damages may be obtained only if the trial
court dissolves the preliminary injunction before the case is disposed of on the merits (735 ILCS
5/11--110 (West 2008)) and determines that it was wrongfully issued (Rochester Buckhart Action
Group v. Young, 394 Ill. App. 3d 773, 776-77 (2009)). The trial court denied Bos's motion to
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dissolve on November 10, 2009, before its December 15, 2009, final judgment denying the permanent
injunction on the merits. Under Rule 307(a)(1), Bos could appeal as a matter of right from the order
refusing to dissolve the preliminary injunction. Official Reports Advance Sheet No. 7 (April 8, 2009),
R. 307(a)(1), eff. March 20, 2009. If Bos had not timely appealed from that order, the order would
constitute a final order that the preliminary injunction was properly granted and become the law of
the case. See Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc., 94 Ill. 2d 535, 544 (1983);
Pasquinelli v. Village of Mundelein, 257 Ill. App. 3d 1057, 1068 (1994). However, Bos appealed on
December 10, 2009, within 30 days of the trial court's denial of his motion to dissolve. Thus, Bos
preserved his right to contest the trial court's ruling. See Rochester Buckhart Action Group, 394 Ill.
App. 3d at 779.
We now turn to the question of whether the trial court erred by denying Bos's motion to
dissolve. A preliminary injunction serves to preserve the status quo until the case's merits have been
decided. Ziller v. Rossi, 395 Ill. App. 3d 130, 139 (2009). A plaintiff seeking a preliminary
injunction must show: (1) a clear right or interest needing protection; (2) no adequate remedy at law;
(3) that irreparable harm will occur without the injunction; and (4) a reasonable likelihood of success
on the merits of the underlying action. Ziller, 395 Ill. App. 3d at 139. The plaintiff does not carry
the same burden of proof as is required to prevail on the ultimate issue, but rather must make a prima
facie case that there is a fair question about the existence of the claimed right and that circumstances
reasonably indicate that the plaintiff will be entitled to relief on the merits. Ziller, 395 Ill. App. 3d at
139.
Section 11--108 of the Code allows a party to move to dissolve a preliminary injunction. That
section provides: "A motion to dissolve an injunction may be made at any time before or after answer
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is filed. Upon a motion to dissolve an injunction after answer is filed the court shall decide the motion
upon the weight of the evidence." 735 ILCS 5/11--108 (West 2008). Whether to dissolve a
preliminary injunction is within the trial court's discretion. Stoller v. Village of Northbrook, 162 Ill.
App. 3d 1001, 1008 (1987); see also Ford Motor Credit Co. v. Cornfield, 395 Ill. App. 3d 896, 903
(2009) ("In interlocutory appeals, the trial court's decision to grant or deny the relief requested is
generally reviewed under an abuse of discretion standard"). To dissolve a preliminary injunction, the
defendant must show that the trial court abused its discretion in issuing the injunction because the
plaintiff did not present a fair question as to the legal rights involved. Ziller, 395 Ill. App. 3d at 140.
The ultimate grant or denial of the permanent injunction does not dictate whether the preliminary
injunction should have been dissolved. That is, a preliminary injunction may have been wrongfully
issued even if the plaintiff successfully obtains a permanent injunction, and, conversely, a preliminary
injunction may rightfully have been issued even if the permanent injunction is denied. Schien v. City
of Virden, 5 Ill. 2d 494, 503 (1955). A trial court possesses the inherent authority to review, modify,
or vacate an interlocutory order at any time until it enters a final judgment. Doe v. Department of
Professional Regulation, 341 Ill. App. 3d 1053, 1059 (2003).
In ruling on the motion to dissolve, the trial court stated as follows in relevant part. It entered
the preliminary injunction after the parties had presented a significant amount of evidence, albeit when
little discovery had been conducted by the parties. Bos's arguments that Panno did not conduct every
test available to him, that his methodology was flawed, and that his ultimate opinion was sheer
speculation were issues to be resolved at trial, and the preliminary injunction was issued to maintain
the status quo until that point.
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On appeal, Bos argues that the motion to dissolve should have been granted based on e-mails
that Bos obtained showing that, during the preliminary injunction stage, Panno withheld evidence
about precise scientific methods to test for karst and falsely passed himself off as an objective witness
when he was actively colluding with HOMES and its members to overstate their case. More
specifically, Bos argues that e-mails show that Panno did not conduct any ground-penetrating-radar
or low-frequency-radar testing on the dairy site despite his discussions of such tests with colleagues
in e-mails and "the availability of discovery tools and months of opportunity to do so." Panno
similarly did not install test wells or use tracers. Bos also notes that Panno had an e-mail exchange
with Weibel about a test to determine whether there was a "gaining" or "losing" stream to show
evidence of karst, but Panno never performed such a test. E-mails also showed that Panno was aware
of Eric Peterson's tests finding that nothing in the water samples definitively identified the area as
karst. Bos further argues that Panno's visits to the area and the site proved that he was not objective,
in that his property inspections were arranged through HOMES and the organization directed him
to various places where there was allegedly evidence of karst.
Bos additionally argues that even if the trial court found the foregoing information insufficient,
evidence at trial "shed a new light on HOMES and Panno." Bos references Panno's admission that
he received potential trial questions and answers from HOMES's leader Matthew Alschuler. Also,
Bos argues that although Panno, a senior scientist for the Illinois State Geological Survey, stated that
he had been asked to get involved in the case by the Attorney General's office, Panno agreed that the
office later determined that it should not be involved in the case, a fact he did not mention in his
reports. Bos recites the full range of testimony brought out on Panno's cross-examination, including:
that his research showed that there was a relationship between bacterial contamination from septic
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systems and the existence of karst, but he did not test any of the wells around the proposed dairy for
such contamination; that he was aware of many tests for karst that he did not conduct; that he had
experience with a clay pond liner that did not achieve breakthrough after 14 years; that he had worked
with Alschuler to gather physical evidence; and that he did not have direct evidence of karstified
carbonate bedrock under the containment ponds. Bos argues that Panno should have disclosed all
of these things to the trial court during the preliminary injunction proceedings and after the entry of
the preliminary injunction, but that he did not. Bos argues that the trial court's ruling denying the
permanent injunction shows that HOMES and Panno had no real basis to support their claims, and
Bos argues that he is entitled to damages.
We conclude that the trial court did not abuse its discretion in denying Bos's motion to
dissolve the preliminary injunction. While Panno admitted at trial that various tests could be done
to indicate the presence of karst, he also testified that the Geological Survey had very little resources
to spend, to the extent that staff would drive 10 hours round trip and do 10 hours of fieldwork in one
day because there was no money to stay overnight in a hotel. When asked why he did not get funding
from plaintiffs for tests, Panno replied that it was "not something we do." Thus, while there was
certainly communication occurring between Panno and plaintiffs, the fact that Panno did not ask them
to pay for tests shows a degree of independence not acknowledged by Bos. Further, Panno testified
that although he received a list of potential questions and answers from Alschuler, he had not "used"
it for anything. When asked why he did not tell Alschuler to stop contacting him, Panno replied that
he was a public servant and was supposed to respond to e-mails and phone calls. When asked if he
thought the communication might create the appearance of impropriety, Panno testified that he was
not a lawyer and that this was his first involvement with litigation regarding his work. Panno also
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testified that Bos never invited him to inspect the farm or offered any testing equipment. Panno's
explanations are reasonable and are not contradicted by the record.
Panno further testified that the Board had asked him to write a report on the site and that the
Attorney General's office then requested that he write a more extensive report. Contrary to Bos's
argument, Panno's reports and testimony did not imply that he was involved on behalf of the Attorney
General's office, but rather explained how he became involved in the case. Panno never claimed at
the preliminary injunction hearing that he had utilized all possible methods to determine the presence
of karst, but rather he offered an opinion based on the evidence he had that he felt was reliable. As
stated, plaintiffs were not required to prove their case at the preliminary injunction stage but rather
needed only to present a "fair question" as to the legal rights involved. Ziller, 395 Ill. App. 3d at 140.
At trial, Panno testified that while there was no direct evidence of karstified carbonate bedrock
beneath the site, there was a lot of indirect evidence leading to that conclusion. Panno was clearly
a karst expert who had authored numerous articles on the subject, and weaknesses in his opinion that
the dairy site was underlain by karst were brought out in cross-examination. The fact that Bos
ultimately prevailed does not mean that Panno's opinion was baseless, and the trial court acted within
its discretion in denying Bos's motion to dissolve the preliminary injunction.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the circuit court of Jo Daviess County.
Affirmed.
O'MALLEY and HUDSON, JJ., concur.
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