The hearing on the temporary restraining order/preliminary injunction (it became unclear over the 4 days of hearings whether the hearing was on a TRO or a PI) being sought by the Illinois Dept. of Natural Resources (IDNR) against the Big Creek Drainage District over the "Diehl Dam" ended yesterday with a ruling reserved by the court. The Drainage District removed the dam in April at the direction of the permit and lease holders, the Citizen's Committee to Save the Cache (CCTSC). Another briefing will occur on the issues of whether or not the Drainage district should be granted a directed verdict for failure to meet their burden of proof in the need and reason for the injunction, and whether or not the IDNR's request should be denied because they did not file a verified complaint.

As the 4 days of hearings progressed, which began early in October, a facinating story unfolded of the IDNR working behind the scenes, using bureaucratic short cuts, truth fudging, hiding information from the top levels of the agency, and ignoring their own policies to avoid public disclosure of their activities, to undo and redo leases, legal agreements, and to avoid having to face the environmental problems that has been caused by the sustained high water from the Diehl dam since 1982.

The story of the battle of authorities between the IDNR and the Drainage District goes back to the early 1980s. In 1982, the CCTSR obtained a permit to place a dam across the Cache channel on Diehl's property, to hold water in the Buttonland swamp, a national natural landmark, state natural area, and home of some of the oldest trees east of the Mississippi. It was felt at that time that such a structure was necessary to hold water in the swamp because of impacts that drainage, clearing, agriculture, and other developments near the Cache were having on the important ecology of the area.

Two of the main players in having the dam installed, and speaking up locally for preservation of the remaining wetlands, were landowner Dave Diehl, after which the dam is named, and his close friend and lifelong resident of the Cache area, A. E. Corzine, who owns land just a few hundred yards from the Diehl property. The two of them together, with several other locals, took up the cause locally for protecting what was left of the Cache wetlands. Rural Southern Illinois, at that time, (and even today, to an extent) was not the center of "green" politics. To buck the local Drainage District, with it's elected officials and tax base, was controversial. But, these locals were supported by the IDNR and some academics, who viewed the swamp as important.

After the Diehl Dam was installed, in the mid 1980s, the Drainage District sought to remove it, legally and physically. The IDNR leased the dam from the CCTSC for $1 and defended the lawsuit with Illinois taxpayer dollars when the CCTSC didn't have the resources to defend the dam in court. The Drainage District could not obtain the needed legally authorization to remove the dam, and a detailed settlement was drawn up which came to be known as the "Declaration of Duties." I believe that was in 1986.

That agreement spelled out certain obligations of the IDNR, the Drainage District, and Dave Diehl. It also set forth an expiration date. Over the years, the agreement has expired several times, but each time it was renewed. The last expiration, 2006, though, remains unrenewed. This has released all of the parties to pursue their own interests and authorities in what to do about the current situation on the Cache.

Since those early years of the existence of the dam, Diehl entered into moderately lengthed leases for his property to the CCTSC, of which Diehl was a board member and Corzine president, specific to a small parcel of his land where the dam is located, and to A.E. Corzine as an individual for the entire property. However, in Oct. 2005, Mr. Diehl passed away, and while the leases conveyed the existing rights to heirs and assignees, Diehl's death would change things immensely. The land passed to the Diehl Family Trust. That trust has, according to testimony, 7 board members, including Diehl's son and sister. I don't know who else is on the trust.

While, according to Corzine, Diehl's intent in setting up the trust and giving him the lease until 2012 was to force a situation that would tie up the land so that little changes or developments could be made that would affect the environment of his property, which not only contained the dam, but contained some important wetlands adjacent to the main channel of the river, it appeared that the trust wasn't working as planned. During my earlier tenure as a member of the board of CCTSC, I met Dave Diehl on several occasions, and spoke to him in detail about his property and what he wanted. It was clear to me that he had the utmost of respect for Corzine and wanted him to be the "eyes and ears" of his property as he was for the most part, an absentee land owner, living in Centralia, Illinois, several hours to the north.

Notwithstanding that, the CCTSC, through Corzine, received a letter in March of this year giving the required 30 day notice that the Diehl family trust was terminating the lease with the CCTSC. It would come out later in testimony by former IDNR staff attorney, and now Chief Counsel for the Illinois Dept. of Veterans Affairs, Jack Price, an attorney that I have successfully gone against twice now and who I found, um, less than forthright, that within the last year, the IDNR quietly sought out key members of the Diehl family trust, met with them, told them who knows what, and convinced them to send the lease cancellation notice to the CCTSC.

After the 30 day cancellation notice was received by the CCTSC, the board approved removing the dam within the last 30 days. The CCTSC had already lowered the dam twice during the last 4 years, and had sent numerous letters to just about everyone telling them that they were going to do it. In fact, the IDNR Region 5 Natural Heritage director, Jody Shimp, wrote in an email disclosed in court that he was aware that Corzine had actually said in the week before the dam was removed, at a public meeting of the Drainage District, that he was going to have the dam removed. Yet, during most of the hearing, the IDNR acted like they were "caught offguard." What a bunch of bull!

The reason the dam was being removed was because of excessive hardwood tree mortality in the swamp and along the swamp edge due to the sustained high water. Corzine had documented this carefully over years. The IDNR tried to act like they didn't know what he was talking about, and that there couldn't be such a problem. But, a letter was produced by the attorney for the Drainage District, written in 1981 to the IDNR, in which the U.S. Fish and Wildlife Service, commenting on the possibility of installing a dam on the Cache, had expressed concerns for the impact of sustained high water on tree mortality. In fact, the USFWS had recommended a permit condition in which culverts with flap gates would be required to be installed in the bottom of the dam, and would be open during the summer months every 2 years, to allow drawdown of the swamp to facilitate tree regeneration. The IDNR had written back saying they didn't want to drawdown the swamp water level every two years. Instead, they thought that a monitoring program for tree mortality, in which any findings of excessive tree mortality would trigger permit modifications or revocations, would be adequate to protect the trees. In fact, however, the IDNR testified that no such monitoring had ever been done.

But when Director of the IDNR's Offrice of Water Resources, Loren Wobig, was asked if he was aware of any monitoring reports submitted by Corzine, he said no. The record had already showed that Corzine had written any number of letters and made phone calls, both through the CCTSC and personally, about the tree mortality that he was observing in the swamp and on the edges, for many years. Deputy Director of the IDNR, Leslie Skrow, tesified repeatedly that she didn't know details about what was going on. She testified that she didn't know who she had talked to on her staff and who had told her what. It was obvious that either the top staff didn't want to know or weren't being told what was going on at the bottom of the bureacracy.

In fact, several years ago, local "naturalist" for the IDNR, Mark Guetersloh, had written a "white paper" in which he, for the most part, ridiculed Corzine's idea that the trees were dying because of sustained high water. Instead, he hypothesized that the mortality was due to the record flooding on the Mississippi in 1993 which backed up water into the Cache system. Since I knew about that paper, I was surprised when I heard Guetersloh testify on the stand that he didn't think there was that much tree mortality, although he also testified that he had never gone out and looked with Corzine. He said the tree mortality that he saw looked pretty normal.

The hearing ended with the judge reserving his ruling. I have no idea how he is going to rule. He listened attentively to hours of testimony, as did I and other paid bureaucrats and a few other interested parties on the IDNR side of the room. But I have to compliment the judge on working hard and trying to be fair. I sat with A.E. Corzine on the Drainage District side.

But make no mistake about it. This is a lose-lose situation. If the dam stays in, there will continue to be unacceptable impacts. If it comes out, there will be impacts. The problem is that the IDNR does not want the swamp to dry out at all in the late summer and fall as it would interfere primarily with duck hunting. To a lesser extent, but still importantly, it interferes with canoeists who like to canoe the area in the fall.

But these interests shouldn't dominate ecological concerns. There is a great need for drawdown in the swamp, and the damage to old hardwood trees on the swamp ridges, which typically had dried out during summer and fall months but had stayed wet now for over 2 decades, is severe. Overcup oak trees that the CCTSC had cored after they died were hundreds of years old, indicating that the swamp had dried out periodically hundreds of years ago, as it takes dry conditions to germinate bottomland oaks.

The IDNR has handled this poorly. This could have been resolved informally a long time ago, but arrogant officials from the IDNR want all the power to make unchallenged decisions on the area, and that attitude brought forth this conflict. Hopefully it will be resolved in a way that makes the IDNR deal honestly and on a equal footing with other parties. Their arrogance and quest for power is wasting time, wasting taxpayers' dollars, and not benefitting the environment at all....more to come......