PEOPLE OF THE STATE OF ILLiNOIS
)
VED
CLERK’S OFFICE
NOTICE OF FILING
To:
Bradley Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph
Chicago, Illinois 60601
Jeffrey W. Tock
Harrington, Tock & Royse
Huntington Towers, Suite 601
201 West Springfield Avenue
P.O. Box 1550
Champaign, Illinois
61824-1550
Jane E. McBride
Assistant AttorneyGeneral
Environmental Law Bureau
Office ofthe Illinois AttorneyGeneral
500 South Second Street
Springfield, Illinois 62706
PLEASE TAKE NOTICE that on December 22, 2004, we filed with the Illinois Pollution
Control Board the attached Respondent Murphy Farms, Inc.’s Reply In Support of its Motion To
Dismiss Second Amended Complaint, copies ofwhich are hereby served upon you.
Respectfully submitted,
MURPHY FARMS, INC.
Dated: December 22, 2004
Charles M. Gering
McDermott, Will & Emery
227 West Monroe Street
Chicago, Illinois 60606
(312) 372-2000
7
By:
(~ ~
~
One ofits attorneys
“
DEC 22 200’s
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF ILUNOIS
ST/\TE
PoIiut~0flControl Board
)
Complainant,
)
)
v.
)
)
THE HIGHLANDS, L.L.C., et al.,
)
)
Respondents.
)
PCB No. 00-104
(Enforcement)
(THIS FILING IS MADE ON RECYCLED PAPER)
CERTIFICATE OF SERVICE
I, the undersigned attorney, certify that on December 22, 2004, I served the foregoing
Notice ofFiling and attached Respondent Murphy Farms, Inc.’s Reply In Support ofits Motion
To Dismiss Second Amended Complaint, by U.S. Mail with proper postage prepaid upon:
Bradley Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph
Chicago, Illinois 60601
Jane E. McBride
Assistant Attorney General
Environmental Law Bureau
Office ofthe Illinois Attorney General
500 South Second Street
Springfield, Illinois 062706
Jeffrey W. Tock
Harrington, Tock & Royse
Suite 601
Huntington Towers
201 West Springfield Avenue
P.O. Box 1550
Champaign, Illinois 61824-1550
CH199 4369423-1.047331.0013
Charles M. Gering
(THIS FILING IS MADE ON RECYCLED PAPER)
~~~VED
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR~LCnY~S
OFFICE
PEOPLE
OF
THE STATE OF ILLINOIS,
~~22
S~1~OFILLtNOIS
Complainant,
Pol
ut~o
n Control Board
v.
No. PCB No. 00-104
(Enforcement)
THE HIGHLANDS, LLC, an Illinois
limited liability corporation, and MURPHY
FARMS, iNC., (a division ofMURPHY-
BROWN, LLC, a Delaware limited
liability corporation, and SMITHFIELD
FOODS, INC., a Virginia corporation),
Respondents.
RESPONDENT MURPHY FARMS, INC.’S
REPLY IN SUPPORT
OF ITS MOTION TO DISMISS SECOND AMENDED COMPLAINT
In its response to Murphy’s motion to dismiss, the State has not contradicted any ofthe
facts set forth in the Affidavit ofDouglas C. Lenhart (the “Lenhart Affidavit”) filed in support of
Murphy’s motion. Instead, the State has argued that Murphy’s contract with Highlands provided
a
theoretical
basis for Murphy to control the management ofHighlands’ farm, and that inquiries
made by Mr. Lenhart relating to siting issues (some ofwhich did not relate to Highlands’ farm)
suggest that Murphy may have been involved in siting the farm. These conclusory assertions,
based entirely on speculation and unsupported by any specific allegations ofconduct on
Murphy’s part which caused or allowed pollution at Highlands’ farm, are comparable to those in
the complaint and provide no basis for the Board to deny Murphy’s motion to dismiss.
It is undisputed that Murphy had no ownership interest in Highlands’ farm. Undisputed
facts set forth in the Lenhart Affidavit demonstrate that Murphy had no ability to control
Highlands’ operation of the farm, and that Murphy did not exercise sufficient control over the
operation ofthe farm to cause or allow pollution at the site. Moreover, even if the State’s
conclusory assertions in its response brief concerning Murphy’s ability to control operation of
(THIS FILING IS MADE ON RECYCLED PAPER)
the farm were true, the State has not identified any conduct on Murphy’s part which constituted
actual control ofthe operation ofHighlands’ farm, and, more importantly, the State has offered
no basis for the Board to conclude that any such conduct caused or allowed the alleged pollution
at Highlands’ farm.
There is no evidence, or even an allegation, that Murphy controlled whatever actions of
Highlands caused the pollution at the site which was alleged in Count I ofthe complaint.
Similarly, Murphy had no role in the land application ofwaste which is the basis ofCount II, and
cannot be held liable for any violations allegedly resulting from that activity. Thus, Murphy’s
motion to dismiss should be granted.
In evaluating Murphy’s motion to dismiss, the Board is to focus on whether the
allegations in the complaint regarding Murphy’s conduct support the State’s claims that Murphy
caused or allowed pollution at Highlands’ farm. Conclusions of material fact, in the absence of
supporting allegations of specific facts, are not enough to avoid dismissal. One ofthe purposes
ofa motion to dismiss pursuant to Section 2-6 19 of the Code ofCivil Procedure is to dispose of
easily proved issues of fact before trial.
Krilich v. Am. Nat ‘1 Bank & Trust Co.,
334 Ill. App. 3d
563,
570, 778 N.E.2d 1153, 1160 (2nd Dist. 2002). When a Section 2-619 motion raises
affirmative matter which negates the plaintiff’s cause of action completely or when it refutes
crucial conclusions ofmaterial fact that are unsupported by allegations ofspecific facts, the
motion should be granted.
American Health care Providers, Inc. v. Cook County, 265
Iii. App.
3d 919, 922, 638 N.E.2d 772, 775 (1st Dist. 1994). Facts set forth in an affidavit supporting a
motion to dismiss which are not contradicted by a counter-affidavit are to be taken as true despite
contrary unsupported allegations in the complaint.
Krilich,
334 III. App. 3d at 572, 778 N.E.2d
at
1162.
-2-
(THIS FILING IS MADE ON RECYCLED PAPER
I.
THE STATE’S ARGUMENTS CONCERNING MURPHY’S ALLEGED
CONTROL OF HIGHLANDS’ OPERATIONS
ARE
BASED ENTIRELY ON
SPECULATION
The State does not dispute that Murphy had no ownership interest in Highlands’ farm.
With respect to Murphy’s conduct relating to the alleged pollution at Highlands’ farm, the State
repeatedlypoints out that Murphy owned the hogs that Highlands raised at its farm, and that
Murphy provided feed, medication, and other supplies used in raising those hogs. The State has
not identified a single act on Murphy’s part which allegedly led to the pollution at issue other
than Murphy’s ownership of hogs and its provision ofsupplies used in raising those hogs. These
acts are insufficient to establish the claims asserted in the State’s complaint.
The State has not offered any evidence, or even an allegation, that Murphy took any
actions that caused the alleged pollution at Highlands’ farm. Moreover, there is no evidence that
Murphy actually controlled the allegedlywrongful acts of Highlands which caused the pollution.
Murphy’s unexercised but alleged theoretical right to control Highlands’ operations is
insufficient, as a matter oflaw, to establish Murphy’s liability for the alleged pollution.
To establish Murphy’s liability, the State must identify the specific conduct that caused
the alleged pollution, and prove that Murphy actually, rather than theoretically, controlled those
acts.
See Phillips Petroleum Co. v. Pollution Control Bd.,
72 Iii. App. 3d 217, 220-21, 390
N.E.2d 620, 623 (2nd Dist. 1979). The State has not done so. The State’s arguments are based
on conclusory assertions for which the State offers no factual basis, and the State has not
provided any evidence establishing that Murphy controlled the acts that resulted in the alleged
pollution.
The State discusses numerous theories regarding ways in which Murphy
could have
exercised control over Highland’s operations, but provides no specific allegations countering the
-3-
(THIS FILING IS MADE ON RECYCLED PAPER
Lenhart Affidavit with respect to anything that Murphy actually did. For example, the State
argues that the provisions ofMurphy’s contract with Highlands reserved unto Murphy the right
to provide management procedures and required Highlands to take measures that Murphy
deemed necessary to provide for the herd. Even assuming that Murphy provided management
procedures and that Highlands was required to take measures that Murphy deemed necessary to
provide for the herd (which the complaint does not specifically allege and which the State has
not established through counter-affidavit), the State has neither identified any such management
procedures or measures, nor explained how any such management procedures or measures
caused or allowed pollution at Highlands’ facility.
The State also discusses Murphy’s provision of training to Highlands’ employees, and
suggests that this training indicates that Murphy controlled the operation ofHighlands’ facility.
However, the State has not established, or even alleged, that Highlands’ operation of its farm was
consistent with any training that may have been provided by Murphy. Indeed, the training
referenced in the State’s brief was “farrowing training” according to the memorandum from
Douglas Lenhart which was attached to the affidavit ofJane E. McBride; farrowing training
relates to the birth ofyoung pigs, not to any issue concerning waste treatment orwaste
management. More importantly, the State does not identify any element ofsuch training which
caused or allowed pollution at Highlands’ facility.
Similarly, the State’s discussion of Murphy’s agreements with Highlands concerning the
financial management of Highlands’ farm offers no basis for the Board to conclude that Murphy
controlled the operation ofthe farm. The addendum referenced at page
5
ofthe State’s response
brief expressly indicates that it relates to adjustments to the contract between Murphy and
Highlands. It is certainly not unusual for one making payments pursuantto a contract to require
-4-
(THIS FILING IS MADE ON RECYCLED PAPER
information concerning how the money is being spent. More importantly, however, the State has
not identified any way in which the financial issues discussed in its brief relate to Highlands’
operations that allegedly caused pollution at the site, and the State included no allegations
concerning those issues in its complaint.
The State discusses Mr. Lenhart’s communications with regulators concerning siting
issues, but most ofthose communications related to a proposed facility other than Highlands’
farm. Specifically, the State indicates at page 6 ofits briefthat most ofMr. Lenhart’s siting
inquiries concerned a facility proposed for Peoria County, not the Highlands facility which is
located in Knox County. Even if Mr. Lenhart contacted regulators with respect to the Highlands
facility, however, such inquiries do not establish that Murphy exercised, or had the ability to
exercise, control over Highlands’ siting decisions. Murphy certainly had an interest in ensuring
that Highlands’ siting decisions were consistent with Illinois law; thus, there was good reason for
Mr. Lenhart’s inquiries concerning siting issues. However, the State’s unsupported conclusion
that Mr. Lenhart’s inquiries indicate that Murphy controlled, or had the ability to control, the
siting of Highlands’ farm (which the complaint does not allege) is entirely speculative and does
not provide the basis for the Board to deny Murphy’s motion.
Finally, the State discusses Murphy’s alleged role in the selection ofthe waste treatment
technology originally in place at Highlands’ farm, and unspecified modifications ofthe waste
treatment system. The State argues that there was a relationship between Murphy and Bion, the
company that provided the waste treatment technology initially used at Highlands’ farm, and that
the State believes that Murphy “had a significant role” in the installation and use ofHighlands’
waste treatment system. State’s Brief, p. 10. Based on this unsupported assertion concerning
Murphy’s role in the installation and use of Highlands’ waste treatment system, the State argues
-5-
(THIS FILING IS MADE ON RECYCLED PAPER
that Murphy “participated in the control ofhow its waste was to be handled at The Highlands
facility.”
Id.
Although it offers no evidence in support of this argument and identifies no
particular aspect ofwaste handling at Highlands’ farm which Murphy supposedly controlled, the
State goes on to argue that Murphy was involved in land application ofwaste because “lJand
application is a part and parcel ofthe waste handling system utilized at The Highlands.”
Id.,
pp.
10-11. The State provides no factual support for any ofthese conclusions. The State does not
even argue, much less provide facts that establish, that Murphy controlled, or had the ability to
control, Highlands’ selection ofwaste treatment technology or its modification of the waste
treatment system.
The State’s arguments concerning what Murphy theoretically could have done pursuant
to its agreement with Highlands constitute nothing more than speculation, and do not establish
that Murphy actually controlled the acts that resulted in the alleged pollution. This is particularly
clear in connection with the State’s argument at pages 7-8 ofits brief concerning Murphy’s
supposed ability to control ventilation in Highlands’ barns. The State first asserts that because
Murphy had the right under its agreement with Highlands to provide management procedures for
the care ofits breeding herd, Murphy “had sole control of the management ofall procedures for
the care and productivity of the hogs.
. . .“
State’s Brief, p. 7. This is an enormous leap of logic
for which the State offers absolutely no support. Based on this insupportable premise, the State
goes on to argue without any evidentiary support that “it is obvious that Respondent Murphy
ultimately had the final say as to the rate ofventilation in the facility.
. . .“
State’s Brief, pp. 7-8.
Not only is this not obvious, as the State argues, it is also squarely inconsistent with the Lenhart
Affidavit.
-6-
(THIS FILING IS MADE ON RECYCLED PAPER
The State has not identified any basis, and none exists, to support its argument that
Murphy controlled the ventilation of Highlands’ barns at any time, or, indeed, that Murphy
controlled any other aspect of Highlands’ operation. Nevertheless, the State’s unsupported
argument concerning ventilation is the only argument included in the State’s brief with respect to
any specific alleged conduct on Murphy’s part. Like its other arguments concerning what
Murphy
might have done,
the State’s argument is based entirely on speculation. All of the
State’s speculative arguments should be rejected.
II.
THE STATE HAS NOT CONTRADICTED THE FACTS SET FORTH IN THE
LENHART AFFIDAVIT BY COUNTER-AFFIDAVIT OR OTHERWISE
Murphy filed the Lenhart Affidavit in support ofits motion to dismiss, and the State has
not contradicted the facts set forth in that affidavit by counter-affidavit or by any other means.
The Lenhart Affidavit established that Highlands’ farm was operated entirely by Highlands, and
that Highlands (1) determined where the farm would be sited, (2) owned and maintained the
land, buildings, and other structures on the farm, (3) employed the workers who ran the farm,
and (4) had unfettered control ofthe operation ofthe farm. Lenhart Affidavit, paras. 5-7. In
addition, the Lenhart Affidavit stated that no Murphy employees worked at Highlands’ farm, and
that Highlands employed management personnel and workers to operate its farm.
Id.,
paras. 6-7.
The Lenhart Affidavit further set forth that Murphy made recommendations concerning
husbandry and developmental issues relating to animal care, but that Highlands determined
whether it would follow those recommendations and, indeed, sometimes deviated from
Murphy’s recommendations.
Id.,
para. 7. The Lenhart Affidavit stated that Highlands controlled
all aspects ofthe operation ofits farm.
Id.
Finally, the Lenhart Affidavit establishes that
Highlands selected the waste treatment systems used at the farm and controlled the land
-7-
(THIS FILING IS MADE ON RECYCLED PAPER
application process, and that Murphy was not involved in any way with land application of waste
material from Highlands’ farm.
Id.,
paras. 7-9.
The State has not contradicted any of these facts by counter-affidavit or otherwise, and
the facts set forth in the Lenhart Affidavit therefore must be taken as true for purposes ofthe
Board’s consideration ofMurphy’s motion to dismiss.
See Krilich,
334 Ill. App. 3d at 572, 778
N.E.2d at 1162. The unsupported conclusory allegations in the complaint and the speculative
arguments in the State’s brief concerning what Murphy might have done, or what it could have
done, do not contradict the facts in the Lenhart Affidavit, and provide no basis forthe Board to
reject Murphy’s motion to dismiss.
Id.
The affidavits filed with the State’s brief do not contain facts that contradict those in the
Lenhart Affidavit. The affidavit ofJane E. McBride provides only the foundation for certain
documents. The affidavit ofBruce Yurdin (the “Yurdin Affidavit”) includes information
concerning communications between Douglas Lenhart and Mr. Yurdin relating to waste
treatment issues, but does not assert, much less prove, that Murphy selected, or had the ability to
select, the waste treatment technology used at the farm. The affidavit ofEric 0. Ackerman (the
“Ackerman Affidavit”) includes certain facts concerning inquiries made by Douglas Lenhart
with respect to siting requirements. As discussed above, however, most ofthe inquiries did not
relate to Highlands’ farm. To the extent that Mr. Lenhart made inquiries relating to Highlands’
farm, there was good reason for Mr. Lenhart’s inquiries: Murphy had an interest in ensuring that
Highlands sited its farm, where Murphy’s pigs would be raised, consistent with the requirements
of Illinois law. The fact that Mr. Lenhart made those inquiries does not indicate that Murphy
controlled, or had the ability to control, siting of Highlands’ farm.
-8-
(THIS FILING IS MADE ON RECYCLED PAPER
The remainder ofthe Yurdin Affidavit and the Ackerman Affidavit consist of
unsupported conclusions purportedly based on information and belief and, in the case of the
Yurdin Affidavit, a hearsay description ofa telephone conversation which allegedly took place
between Mr. Lenhart and a colleague ofMr. Yurdin. Supreme Court Rule 191, which sets forth
requirements for affidavits filed in support ofRule 2-619 motions, states that such affidavits:
shall be made on the personal knowledge ofthe affiants; shall set
forth with particularity the facts upon which the claim,
counterclaim, or defense is based;.
. .
and shall not consist of
conclusions but offacts admissible in evidence.
.
Courts applying the requirements of Rule 191 to affidavits filed in support of Rule 2-619
motions have held that conclusions set forth in such affidavits should be ignored.
See Robidoux
v. Olzphant,
201 Ill. 2d 324, 335 (2002) (“Supreme Court Rule 191 is specific in mandating that
affidavits cannot consist of conclusions but must set forth facts admitted in evidence.”);
Fabiano
v. City ofPalos Hills,
336 Ill. App. 3d 635, 650 (1st Dist. 2002) (holding that Rule 191(a) should
be construed according to the plain and ordinary meaning ofits language such that “a court must
disregard conclusions in affidavits..
.
.“).
Moreover, affidavits based on information and belief
cannot contradict facts set forth in affidavits based on personal knowledge.
Allied American Ins.
Co. v. Mickiewicz,
124 Iii. App. 3d 705, 708-709 (1st Dist. 1984) (finding that counter-affidavits
consisting of allegations based on information and belief are insufficient to rebut an affidavit
consisting of positive averments offact based upon an affiant’s personal knowledge). Thus, the
portions~ofthe Yurdin Affidavit and the Ackerman Affidavit consisting of conclusions, and the
portions based on information and belief, cannot contradict the facts set forth in the Lenhart
Affidavit, and should be ignored.
The State raises the issue ofdiscovery several times in its brief (see,
e.g.,
State’s Brief,
p. 10), and states that the affidavits presented with its brief establish that without discovery, the
-9-
(THIS FILING IS MADE ON RECYCLED PAPER
merits of Murphy’s Rule 2-619 motion cannot properly be assessed (State’s Brief, p. 24). The
State, however, misses the point ofthe Rule 2-619 motion, which was intended as a means of
resolving easily proved issues offact before trial.
See Krilich v. Am. Nat ‘1 Bank & Trust Co.,
334 III. App. 3d 563, 570, 778 N.E.2d 1153, 1160 (2nd Dist. 2002). Where, as here, the party
opposing the motion does not file counter-affidavits that contradict the facts set forth in an
affidavit supporting the movant’s motion, those facts are taken as true.
Id.,
334 Iii. App. 3d at
572, 778 N.E.2d at 1162.’
Because the State has not contradicted the facts set forth in the Lenhart Affidavit, the
Board must take those facts as true for purposes of evaluating Murphy’s motion to dismiss.
Based on those uncontroverted facts, the State’s claims against Murphy should be dismissed.
III.
The State’s Authorities Are Inapposite
To support its claim under Section 9(a) ofthe Illinois Environmental Protection Act (the
“Act”), Illinois law clearly requires that the State demonstrate that Murphy actually controlled
the acts that caused the pollution or “was at least in control ofthe premises on which the
pollution occurred.”
Phillz~sPetroleum Co. v. Pollution Control Board,
72 Ill. App. 3d 217,
220-21, 390 N.E.2d 620, 623 (2nd Dist. 1979). None ofthe authorities relied on by the State
support its assertion that Murphy’s theoretical right to control care ofthe hogs at Highlands’
farm is sufficient to hold Murphy liable for alleged pollution caused by Highlands.
The State argues that the court’s reasoning in
People v. McFalls,
313 Ill. App. 3d 223,
728 N.E.2d 1152 (3rd Dist. 2000), supports its claims against Murphy in Count I ofits
To the extent that the State believed that facts contradicting those in the Lenhart Affidavit
were unavailable to the State because the facts were known only to individuals whose affidavits
the State could not procure because ofhostility or otherwise, Supreme Court Rule 191(b)
provides a detailed mechanism for requesting an opportunity to engage in discovery with respect
to the crucial facts. The State did not follow that procedure.
-10-
(THIS FILING IS MADE ON RECYCLED PAPER
complaint. That case, however, provides no support for the State’s claims. In
McFalls,
the court
addressed claims not under Section 9(a) ofthe Act, but under the open dumping prohibitions set
forth in Section 21 ofthe Act. The defendant in that case had dumped various waste materials
on certain real property, then argued that it could not be liable under Section 21 ofthe Act
because it did not own or control the real estate where it had dumped those wastes. The court
found that it was reasonable for those who dumped the wastes to be held liable for the cost of
restoring the property they had damaged through their disposal practices.
Id.,
313 Iii. App. 3d at
228, 728 N.E.2d at 1156.
In
McFalls,
the defendant’s dumping ofwaste material on the property at issue
constituted “open dumping” under Section 21, and resulted in pollution on the property. In
contrast, the State has not identified a single act on Murphy’s part which resulted in pollution at
Highlands’ farm in violation ofSection 9(a) ofthe Act. Murphy’s ownership ofthe hogs raised
at Highlands’ farm is not sufficient to support the State’s claims against Murphy in Count I of
the complaint.
The State also presents a lengthy quote from
Perkinson v. Pollution Control Board,
187
Ill. App. 3d 689, 543 N.E.2d 901 (3rd Dist. 1989), although it presents no argument concerning
the court’s analysis in that case.
Perkinson
involved a situation in which it was undisputed that
the defendant was in control of lagoons and land from which pollution discharges occurred.
Given that the defendant clearly had control ofthe land and the structures from which the
pollution occurred, that case has no application here, given that the State has presented no facts
establishing that Murphy controlled the operations at Highlands’ farm. Similarly, the State’s
discussion of
Sierra Club, Inc. v. Tyson Foods, Inc.,
299 F. Supp. 2d 693 (W. Dist. Ky. 2003)
provides no support for the State’s claims given that (1) the
Tyson
case involved alleged
—11—
(THIS FILING IS MADE ON RECYCLED PAPER
CERCLA and EPCRA violations, not violations ofthe Act, and (2) the State conceded that
Tyson’s arrangement with its growers is not identical to the arrangement that existed between
Murphy and Highlands (State’s Brief, p. 16).
The State’s criticism ofMurphy’s reliance on nuisance principles is entirely misplaced.
As the State observed in its brief, the standard applicable to air pollution claims under
Section 9(a) ofthe Act is whether there has been “unreasonable interference with the enjoyment
of life or property.” State’s Brief, p. 18. The standard applied in common law nuisance cases is
virtually identical to this standard.
See, e.g., Koistad v. Rankin,
179 Ill. App. 3d 1022, 1032, 534
N.E.2d 1373, 1380 (4th Dist. 1989) (“Any unreasonable, unwarranted, or unlawful use ofone’s
property such that another’s use and enjoyment of his property is invaded by a material
annoyance, inconvenience, discomfort, or hurt is a nuisance.” citation omitted). It is true that
the Board is not authorized to proceed against common law nuisance claims, but given that the
standard applicable to such cases is virtually identical to the standard that applies with respect to
claims under Section 9(a), Murphy’s assertion that similar principles apply to the resolution of
such claims is accurate.
After asserting that nuisance principles do not apply to this matter, the State nevertheless
discusses at length
Nickels v. Burnett,
343 Ill. App. 3d 654, 798 N.E.2d 817 (2nd Dist. 2003). In
the
Nickels
case, the trial court granted a preliminary injunction to prevent a prospective
nuisance. In that case, however, the plaintiffs had presented extensive evidence showing a
substantial likelihood ofpotential harm to their health and property values.
Id.,
343 Iii. App. 3d
at 656, 798 N.E.2d at 820. For unexplained reasons, the defendants chose not to controvert the
plaintiffs’ evidence.
Id.,
343 III. App. 3d at 663, 798 N.E.2d at 826. The court reviewed the trial
court’s grant ofthe requested preliminary injunction pursuant to an abuse ofdiscretion standard
-12-
(THIS FILING IS MADE ON RECYCLED PAPER
and, given that the only evidence in the record was that offered by the plaintiffs, the court found
that the trial court had not abused its discretion in issuing the preliminary injunction.
The State argues that the
Nickels
case establishes that “plaintiffs in this state have
presented sufficient showings ofpotential harm and substantial certainty that the harms would
occur should a large number ofhogs be established in a given location, to uphold the grant of
injunctive relief prohibiting construction and operation of facilities housing large numbers of
hogs.” State’s Brief, p. 23. This is a significant overstatement of the holding in the
Nickels
case,
in which the court merely found that the trial court had not abused its discretion in issuing a
preliminary injunction where the only evidence before the court was that submitted by the
plaintiffs. The
Nickels
case does not support the State’s argument, which suggests that under no
circumstances may a large number ofhogs be located at a farm in Illinois. This position squarely
conflicts with the court’s holding in
Village of Goodfield v. Jamison,
188 Ill. App. 3d 851, 544
N.E.2d 1229 (4th Dist. 1989) (which is unaffected by the court’s decision in
Nickels),
as well as
with the comprehensive regulatory scheme for facilities housing large numbers ofanimals set
forth in the Livestock Management Facilities Act, 510 ILCS 77, which contemplates facilities
precisely like Highlands’ farm.
The uncontroverted facts concerning Murphy’s activities relating to Highlands’ farm
clearly demonstrate that there is no basis for the State’s claims against Murphy in Count I of the
complaint. The State’s speculation concerning what Murphy might have done provides no legal
basis for those claims. Consequently, those claims should be dismissed with prejudice.
IV.
Count II Must Be Dismissed Because Murphy Was Not Involved With Land
Application ofWaste Material
The only allegation in the complaint concerning Murphy’s conduct with respect to the
violations alleged in Count II of the complaint is that Highlands and Murphy applied waste
-13-
(THIS FILING IS MADE ON RECYCLED PAPER
material from Highlands’ farm on land in the vicinity ofthe farm. That simply is not true, as the
uncontroverted Lenhart Affidavit makes clear. The fact ofthe matter is that Murphy had no role
whatsoever in the land application ofwaste at Highlands’ farm at any time.
Count II is based on allegations concerning land application ofwaste material on June 18,
2002, which resulted in runoffthat killed fish in a nearby creek. The State has offered no
evidence that Murphy exercised any control over the land application ofthat waste.
Consequently, the State has not established a legal basis for its claims against Murphy in Count
II of its complaint, and those claims should be dismissed with prejudice.
CONCLUSION
The speculative arguments the State has raised in response to Murphy’s motion to
dismiss do not cure the fatal flaws present in the State’s complaint. The State has offered no
evidence that any act on Murphy’s part caused the alleged pollution on which the complaint is
founded.
Based on the uncontroverted facts established through the Lenhart Affidavit, the State’s
claims against Murphy in Counts I and II ofthe complaint cannot stand. For these reasons,
Murphy respectfully requests that the Board dismiss Counts I and II with prejudice to the extent
that those counts relate to Murphy.
Dated: December 22, 2004
MURPHY FARMS, iNC.
By:~ ~
One of Its Attorne~’ys
,‘.
Charles M. Gering
(_.__._
)
McDermott Will & Emery LLP
227 West Monroe Street
Chicago, IL 60606-5096
312.372.2000
Facsimile: 312.984.7700
CH199 4405605-1.047331.0013
-14-
(THIS FILING IS MADE ON RECYCLED PAPER
