Showdown coming in civil court as

injunction ordered against township

SALINE CO.—Machinations on the part of Peabody Coal supporters, in concert with a Saline County public official, have managed to close the embattled Cottage Grove Road in Cottage Township on the east side of the county.

In what was believed to be a dead issue as of June 29, a hearing was held by Saline County engineer Jeff Jones on July 17 at the Saline County Detention Center after a petition movement was launched by Peabody miners in opposition to the decision reached on the road by those in charge of it, this decision made by newly-appointed Cottage Township Road Commissioner Jeff Karns.

The problem is that Karns was appointed to replace former road commissioner Tim Tuttle, in an illegal meeting held by the township board on June 11. And because the meeting—which was held without an agenda, thus making it in violation of Illinois’ Open Meetings Act—was illegal, that makes Karns’ appointment invalid…and that, in turn, makes the subsequent decision Karns made on June 29 also invalid.

Because Karns’ decision to keep the road (which Peabody wants to take over in order to further access mining in the area) open is immaterial, the petitions the miners submitted and escalated the situation to the point of a public hearing are also invalid.

And that, in its turn, also makes everything that occurred at the July 17 public hearing null and void…meaning that Jones’ decision to close the road in favor of Peabody is moot.

Residents of Cottage Township, as well as miners from Peabody Coal (in gray/green at the door) flooded the small courtroom at the Saline County Detention Center on Thursday, July 17, for a 5 p.m. hearing to determine whether Cottage Grove Road, greatly desired by Peabody for access (and potentially for the coal under the road) to mining in Cottage Township, would be closed to local traffic. The hearing was not a meeting of the township board and could not be stopped by a petition filed that day by Disclosure staff.

Illegal meeting reported, matter pursued anyway

Having reported the illegal June 11 meeting to both the Saline County State’s Attorney’s office and to the Illinois Attorney General on the Open Meetings Act violation via email on June 12, Disclosure believed that one or both of the entities would take action against the Cottage Township board and ask them to do a “do-over”—hold a meeting, with an agenda, and re-appoint Karns properly to the position.

That didn’t happen. When Karns made his June 29 decision to keep the road—which is a main artery between new Illinois Route 13 and old Route 13, the latter of which was already given over to Peabody by the county, and which is a main access for residents of Rocky Branch Road—open for residents, it didn’t appear that there would be any more action on it, as the township road commissioner is THE ultimate authority as regards roads not under the purview of the county’s highway department.

However, Peabody’s legal minds went to work and learned that according to 605 ILCS 5/6-311, members of the community, including those directly affected by a road closure as well as those affected only indirectly, can file a petition “up the ladder,” to the county engineer, who can take testimony from the individuals petitioning and basically holding a “trial” of sorts in a public hearing, and after hearing testimony, the engineer can issue his opinion on road closure.

That’s what Peabody rallied to do, resulting in the setting of a hearing for July 17.

The straw that broke the camel’s back

When Disclosure’s Angela Howser learned of the hearing, it was first presented to her as another “meeting” of the Cottage Township board…and while Disclosure staff searched for an agenda for this meeting, Howser prepared her own motion to stop whatever meeting was going to occur on the evening of the 17th.

In the petition for injunctive relief, Howser iterated that the June 11 meeting, and as far as can be ascertained, every other meeting Cottage Township has held for years, was being done so without an agenda.

On June 11, when Board Trustee Judy Kellen protested the holding of the meeting without an agenda, she was told by other members that they were proceeding, stating at that juncture, “Nobody would do anything about it anyway.”

The petition was filed on the morning of July 17, and Judge Todd Lambert signed off on it at 1:45 p.m. The Temporary Restraining Order enjoined and prohibited Cottage Township from holding any public meeting on the 17th, and prohibited them from holding any meeting after that date without first complying with the mandates of the Open Meetings Act. A hearing was set for July 25 to determine whether a preliminary injunction should be issued, beyond the temporary injunction.

Cottage Township clerk Kevin Wintizer was served with the paperwork. Because the meeting on the evening of July 17 was not an official meeting of the township, it could go forward as planned.

However, the stage was set for the undoing of anything that went on at the hearing.

Argument, off the bat

Jones opened the hearing at 5 p.m., telling those in attendance that his decision would be based on two criteria: Will the vacation of the road be in the public and economic interest; and will land owners residing within two miles of the road in question be able to access their property in a reasonable manner and be able to access their fields to work.

Before the meeting was even off of the ground, Jennifer Dumbris, a resident of Cottage Township, spoke up, telling Jones that she was in objection to the hearing, as there was no posted notice. Jones stopped briefly, then continued as though he had not heard Dumbris. She continued to protest, and Jones told her that if she continued he may have to take action, ignoring her objection based on legality. When he welcomed her to leave, she told him that she needed documentation on why she was being ejected, and Jones backed down, saying that may happen as the meeting proceeded. She was allowed to stay, but the hearing continued on, despite her objection.

(As a point of clarification, there WAS no public notice posted at any location, including the one on the doors to the small courtroom in the SCDC, which sits outside the state’s attorney’s offices. The only notice was a vague tiny legal, appearing in the classifieds section of the Harrisburg paper which circulation is equally-tiny, this appearing on July 8 in the little-read paper. That was all the “notice” citizens had of the very important hearing…and while Jones maintains that that notice was all that was required as his civic duty to notify taxpayers, Disclosure is checking with legal counsel as of press time to see if a public notice needed to have been on the doors to the chambers where the hearing was actually to be held, 48 hours in advance of the hearing just as public meetings, under the OMA, are to be.)

Petitioner-parties go first

The hearing speakers consisted of three parties: Those who had petitioned for this review hearing, those who lived within two miles of the proposed-closed road and may be affected, and those who have other business, such as farming, in the area. Each group consisted of three people, all of which would be given 10 minutes to speak; they would be open to cross examination from the other speakers, who could call a witness to speak to their points of views. All speakers would be allowed to address the crowd.

The petitioner party was the first to speak, starting with Max Hayne. Hayne was sworn in, and proceeded to talk about his feelings on the matter, saying that he had moved to this area because of the mining job opportunities. Hayne held the opinion that the mining company coming to Saline County could only be a benefit to the community, saying “I see it as a win-win deal.”

During cross-examination, Hayne stated that he did not use Cottage Grove Road very frequently, and that he did not have any complaint with the blasting going on periodically in the area, an activity which has caused great concern for Cottage Township residents in the past (see January 2014 edition). Other members of the speaker’s panel claimed they had heard him complain about blasts before, but Hayne denied it.

Hayne calls witness Brazinski

Hayne called Frank Brazinski to speak as a witness, and he was sworn in.

Brazinski stated that Peabody had offered to the township $15,000 per year, which would increase to $30,000 per year after coal trucks cease crossing the road intersection for one full calendar year. Additionally, these payments would increase as more roads are relinquished to the company’s purposes, and closed to public traffic, as there are four other roads that are being considered in the area south of new Route 13.

During cross examination, Brazinski claimed that he had no idea how much coal was under the roads, which Cottage Township Trustee Don Porter said amounted to around 30 million dollars worth of coal under the three main roads. Also, Porter asked Brazinski if had any idea how much tax revenue would be lost by the county after Peabody’s operations were done in around five years’ time, to which Brazinski responded that he did not know. Porter estimated that it would be around $20,000 a year in lost revenue, as the land would not be taxable as it would not be farm land, and it would not have any residences on it.

What’s more, Brazinski admitted that the road being vacated was not necessary to mining operations. If it were vacated, it would become a haulage road for massive off-road haul trucks. Peabody had already established a backup plan to hire semi trucks to do the hauling, so by extension there would in fact be more Saline County jobs created if the road was not granted to the company.

Lastly, Brazinski would not say exactly why Peabody would not put in writing when the roads would be replaced, as the company had promised. He did state, however, that the mining would not be completed till 2019 at the earliest, then there would be a one to two year term of reclamation, followed by a five to seven year term of getting the bonds on the land released by the state. Therefore, it could conceivably be past the span of life for many of the Cottage Township residents, which are, for the most part, elderly citizens.

Miners’ part in the petition

The panel of citizens then continued to make their points on the matter, bouncing back in forth between the panel of three citizens who wanted the road closed, and the panel of six who wished for it to remain open. The resounding points that were made had dramatic impact.

One finding, after hearing from most of those who were there to speak, was that each of the three who wished for the road to be closed—and had filed a petition which had lead to the hearing—were all Peabody miners, as suspected from the outset but was proven in “court.”

For those who did not wish for the road to be closed, points of mention included that, with all of these access roads being shut off, emergency services would take much longer to reach those in the township who were in need. Also, how would the farmers and outer businesses like Tyson Chicken, who use those roads, justify the cost of having to go many more miles to haul out their products? The speakers argued that it made no fiscal sense to those who would be bringing sustainable financial value to the area’s operations, and in fact would be detrimental, all for the sake of a five-year operation that would forever render the land useless.

‘Raping the Cottage Township Community’

But, those who opposed the road being left open continued making no points that would seem to the average listener as having carried more weight than the comments of the residents.

One speaker, Paul Winters, even made only the comments that he had raised a family in the area, and that he wished the best for the community, but gave no REASON why he had petitioned to have the road closed.

Perhaps the boldest statement, however, came when it was implied that Peabody is “raping the Cottage Township Community.”

Petitioners for closure, from right to left, Max Hayne, Paul Winter and Jeff Guard.

They have been told “NO” by the community in hundreds of ways, it was pointed out, and yet, Peabody kept pushing themselves further and further into a community that has no intention of welcoming them.

That point couldn’t have been clearer than viewing the two petitions on the matter, one in favor of the closure, and one against. The petition for the closure had three signatures. The petition against the closure held 54 valid signatures. These petitions were entered into the record as evidence.

Yet, all of the many ways that the citizens had proven the value of the road to the community held no weight, as Jones announced his ruling, at about 8:30 p.m. that night, that the community would be better off if the road were closed.

Showdown coming

Disclosure intends to follow through with the injunction request, and has more material that will be filed.

Howser intends to request of the judge in the case, at the July 25 hearing, to declare all activity taken from the June 11 township meeting null and void.

So the do-overs might be massive.

But there’s little doubt that Peabody will have something waiting in the wings; however, Illinois Open Meetings Act is the law…and even with Peabody’s machinations behind the scenes and massive amounts of money for legal presence, the law in the state is something that cannot be easily undone.