Department of Environmental Quality v. Hernan F Gomez ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
DEPARTMENT OF ENVIRONMENTAL FOR PUBLICATION
QUALITY, November 17, 2016
9:00 a.m.
Plaintiff-Appellee,
v No. 328033
Ingham Circuit Court
HERNAN F. GOMEZ and BETHANY M. LC No. 13-001426-CE
GOMEZ,
Defendants-Appellants.
Before: RIORDAN, P.J., and METER and OWENS, JJ.
PER CURIAM.
Defendants appeal as of right the trial court’s judgment—following a grant of summary
disposition in favor of plaintiff on the issue of liability and a bench trial on remedies—ordering
defendants to remove 1.2 acres of fill material that they placed in a wetland on their property, to
restore the area to its previous condition, and to pay a $10,000 civil fine. For the reasons stated
below, we affirm.
I. FACTUAL BACKGROUND
In 2002, defendants purchased approximately 54 acres of property in Green Oak
Township, Michigan, with the intention of constructing a home and an adjoining “working
ranch” with horses. After building the house, defendants selected an area of land next to it which
they decided to convert into a horse pasture. However, in order to make the land suitable for
“pasture seed,” they believed that “top soil” needed to be added. Accordingly, they placed “fill
dirt” in the area between May 2005 and December 2010.
While reviewing aerial photographs in an unrelated matter, Justin Smith, an
environmental quality specialist for the Department of Environmental Quality (“DEQ”),
happened to notice what “looked like . . . a filled wetland area” on defendants’ property. Later,
he and Thomas Kolhoff, a district representative for the DEQ and the Water Resources Division
(“WRD”), conducted an onsite investigation of defendants’ property in fall 2010, during which
they sampled the vegetation and the soil, photographed the site, and identified the filled area’s
boundary. Upon arriving at the property, Smith observed “a cleared area with exposed” light-
colored soil, “no vegetation,” and “some remnant of remaining wetlands that were not filled”
nearby. He specifically observed “a section of cattails 30 feet wide” and “another small section
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that was not filled, that was basically . . . shrub swamp,” which “was inundated with
approximately six inches of water.” Kolhoff performed four or five “soil borings” and attempted
to perform more, but he “couldn’t get through the fill,” which included either “broken concrete
or thick gravel.”
Smith issued a DEQ “violation notice” on December 2, 2010, which informed defendants
that an inspection of their property revealed that “fill material had been placed within wetland
regulated under the authority of Part 303” of the Natural Resources and Environmental
Protection Act (“NREPA”), and that “it appears that this activity was conducted in violation of
Part 303” because the filling was performed without a permit. Smith also told defendants that
the WRD “determined that a permit would not have been approved for this project,” and that
defendants were required bring their property into compliance with Part 303 within 30 days by
restoring the site to a wetland. According to defendants, they did not deposit additional fill
material on their property once they received the violation notice, but they “continued thereafter
to merely plant and nurture pasture grass seed on the land on which fill had already been
deposited.”
Defendants hired an environmental consulting firm to assist them in the resolution of the
alleged violation. In a February 11, 2011 letter, Dianne Martin, “the Director of Resource
Assessment and Management” at the firm, informed the WRD that “[a]pproximately 1.4 acres of
wetland on the property were filled over the course of the last several years.” However, she
explained that defendants intended to use the filled area for “farming and ranching activities”
and, therefore, were not required to obtain a permit to fill the wetland under the corresponding
exemption provided in Part 303 of the NREPA. Nonetheless, Martin indicated that defendants
would be willing to enter into a conservation easement for approximately 18 acres of wetland on
their property if plaintiff was amenable to such a resolution.
In a letter dated February 18, 2011, Smith informed defendants that the WRD had
received Martin’s letter and that “the WRD vehemently disagree[d]” that a permit was not
required for defendants’ activities. Accordingly, he informed defendants that “if the site is not
restored . . . this violation may be referred for escalated enforcement action.” Subsequently,
when Kolhoff visited defendants’ property once per year in 2011, 2012, and 2013, and Smith
visited the site in March 2013, they each observed that restoration efforts had not begun.
On December 19, 2013, plaintiff initiated an action in the Ingham Circuit Court seeking
“injunctive relief to remedy . . . the filling of a wetland without a permit in violation of Part 303
(Wetlands Protection) of the [NREPA].” Plaintiff requested that the court order defendants to
restore their property “to the state that existed prior to the unauthorized and unlawful activities”
and to pay a civil fine of not more than $10,000 for each day of the Part 303 violation.
In February 2014, defendants moved for summary disposition pursuant to MCR
2.116(C)(8), arguing that they were entitled to judgment as a matter of law because no factual
development would alter the fact that their filling of the wetland qualified under Part 303’s
“farming and ranching exemption,” which, in their words, “allows a person to undertake
activities that bring a wetland into a previously non-established farming or ranching use” without
acquiring a permit. Plaintiff disagreed that the exemption applied. The trial court denied
defendants’ motion because it determined there were factual issues relevant to whether
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defendants’ activities fulfilled the exemption.
In September 2014, defendants again moved for summary disposition, arguing that it was
proper under MCR 2.116(C)(7) because the DEQ’s action was time-barred under the applicable
statute of limitations, as an action for the recovery of a penalty must be brought within two years
after the claim accrues. Alternatively, defendants argued that even if a six-year limitations
period applies, the action still would be barred because plaintiff’s claim accrued when defendants
first placed fill material in the wetland in 2005, as established by defendant Hernan’s affidavit.
Plaintiff DEQ disagreed, arguing that under Attorney General v Harkins, 257 Mich. App. 564; 669
NW2d 296 (2003), the applicable statute of limitations for equitable actions to enforce Part 303
is six years, and it was undisputed that defendants placed fill material in the wetland in 2008,
2009, and 2010. However, plaintiff conceded that it could not seek enforcement for the portion
of the wetland that was filled by defendants between 2005 and 2007. After hearing oral
argument, the trial court denied defendants’ motion, concluding that, under Harkins, the six-year
statute of limitation applied to plaintiff’s claims. The court also held “that each plac[ement] of
fill materials or dirt in the wetlands created its own accrual date for the six-year statute of
limitations,” and that there was no dispute that “this action existed within six years.”
In the meantime, plaintiff filed a cross-motion for summary disposition on liability
pursuant to MCR 2.116(C)(10), arguing that there was no genuine issue of material fact that
defendants placed fill material in a wetland without a permit and that their activities did not
constitute “cultivating” under the farming exemption. The trial court granted plaintiff’s motion,
noting that defendants admitted that they placed fill material in a wetland and that Huggett v
Dep’t of Nat Res, 464 Mich. 711; 629 NW2d 915 (2001), “clearly states that filling and dredging
a wetland are prohibited activities that do not fit within the farming activities[.]” The court also
found defendants’ argument that they were cultivating the wetland unpersuasive because “in
order to get any potential cultivating [they] had to fill and dredge and had to place materials in
the site.”
Subsequently, a two-day bench trial was held on the issue of remedies. After hearing
testimony from Smith and Kolhoff, both of whom were qualified as expert witnesses, Martin,
who also was qualified as an expert witness, and defendant Hernan, the trial court ordered
defendants to, inter alia, “[r]estore the approximately 1.2 acres of wetlands on [their property]
into which fill material was placed after December 19, 2007 . . . to the condition that existed
prior to the unauthorized and unlawful placement of fill material.” The restoration activities
ordered by the court were as follows:
a. Remove all fill material from the restoration area described above;
b. After the fill material is removed, address compaction of the wetland soils in
the restoration area to allow the soils to return to the original grade;
c. Re-establish wetland vegetation in the restoration area by applying a DEQ-
approved native wetland plant seed mix and planting native Michigan species of
wetland shrubs;
d. Monitor the restoration area for five years after the date of completion; and
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e. Implement invasive species monitoring and control measures in the
restoration area for five years after the date of completion.
Before commencing the restoration, defendants were required to prepare and submit a restoration
plan to plaintiff no later than June 30, 2016. The trial court also ordered defendants to pay a civil
fine of $10,000.
II. WHETHER DEFENDANTS’ CONDUCT QUALIFIES AS A “FARMING”
OR “RANCHING” ACTIVITY
Defendants argue that the trial court erroneously granted summary disposition in favor of
plaintiff because their use of fill dirt to create a pasture was exempt as a farming or ranching
activity from the wetland permitting requirements. We disagree.
A. STANDARD OF REVIEW
This Court reviews de novo a trial court’s grant or denial of summary disposition.
Moraccini v Sterling Hts, 296 Mich. App. 387, 391; 822 NW2d 799 (2012). “A motion under
MCR 2.116(C)(10) tests the factual sufficiency of the complaint.” Cannon Twp v Rockford Pub
Sch, 311 Mich. App. 403, 411; 875 NW2d 242 (2015). When reviewing such a motion, this Court
may only consider, in the light most favorable to the party opposing the motion, the evidence that
was before the trial court, which consists of “the ‘affidavits, together with the pleadings,
depositions, admissions, and documentary evidence then filed in the action or submitted by the
parties.’ ” Calhoun Co v Blue Cross Blue Shield Michigan, 297 Mich. App. 1, 11; 824 NW2d 202
(2012), quoting MCR 2.116(G)(5). Under MCR 2.116(C)(10), “[s]ummary disposition is
appropriate if there is no genuine issue regarding any material fact and the moving party is
entitled to judgment as a matter of law.” Latham v Barton Malow Co, 480 Mich. 105, 111; 746
NW2d 868 (2008). “There is a genuine issue of material fact when reasonable minds could
differ on an issue after viewing the record in the light most favorable to the nonmoving party.”
Allison v AEW Capital Mgt, LLP, 481 Mich. 419, 425; 751 NW2d 8 (2008). “This Court is
liberal in finding genuine issues of material fact.” Jimkoski v Shupe, 282 Mich. App. 1, 5; 763
NW2d 1 (2008).
Questions of statutory interpretation are also reviewed de novo. Stanton v City of Battle
Creek, 466 Mich. 611, 614; 647 NW2d 508 (2002).
When construing statutes, our primary task is to discern and give effect to the
Legislature’s intent. We begin by examining the statutory language, which
provides the most reliable evidence of that intent. If the statutory language is
clear and unambiguous, then we conclude that the Legislature intended the
meaning it clearly and unambiguously expressed, and the statute is enforced as
written. No further judicial construction is necessary or permitted. [Huggett v
Dep’t of Nat Res, 464 Mich. 711, 717; 629 NW2d 915 (2001).]
“Only when an ambiguity exists in the language of the statute is it proper for a court to go
beyond the statutory text to ascertain legislative intent.” Whitman v City of Burton, 493 Mich.
303, 312; 831 NW2d 223 (2013). Additionally, “[w]hen construing a statute, a court must read it
as a whole.” Klooster v City of Charlevoix, 488 Mich. 289, 296; 795 NW2d 578 (2011).
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B. ANALYSIS
The Natural Resources and Environmental Protection Act (“NREPA”), MCL 324.101 et
seq., “is a comprehensive statutory scheme containing numerous parts, all intended to protect the
environment and natural resources of this state.” People v Schumacher, 276 Mich. App. 165, 171;
740 NW2d 534 (2007). Part 303 of the act, MCL 324.30301 et seq., “governs activities in
wetlands.” Huggett, 464 Mich. at 715.1 “At the federal level, the Clean Water Act (CWA)
provides for the regulation and protection of wetlands, while Michigan’s wetland protection act
. . . serves the same purpose for this state.” K & K Constr, Inc v Dep’t of Environmental Quality,
267 Mich. App. 523, 530; 705 NW2d 365 (2005) (citation omitted).
MCL 324.30304 states:
Except as otherwise provided in this part or by a permit issued by the
department[,2] . . . a person shall not do any of the following:
(a) Deposit or permit the placing of fill material in a wetland.
(b) Dredge, remove, or permit the removal of soil or minerals from a
wetland.
(c) Construct, operate, or maintain any use or development in a wetland.
(d) Drain surface water from a wetland. [MCL 324.30304(a)-(d).]
“Fill material” is defined as “soil, rocks, sand, waste of any kind, or any other material that
displaces soil or water or reduces water retention potential.” MCL 324.30301(1)(d). “However,
part 303 also provides that certain activities are not subject to § 30304’s prohibitions.” Huggett,
464 Mich. at 715. In particular, MCL 324.30305(2) provides that, unless otherwise precluded by
other state laws or “the owner’s regulation,” certain uses are allowed in a wetland without a
permit. Defendants maintain that their filling of the wetland and subsequent growing of pasture
grass are activities that fall under the exemption in MCL 324.30305(2)(e). During the time
period relevant to this case,3 MCL 324.30305(2)(e) provided that the following activities could
1
Part 303 is sometimes referred to as “the wetland protections act” or “the wetlands protection
act.” See, e.g., People v Taylor, 495 Mich. 923; 844 NW2d 707 (2014) (MARKMAN, J.,
concurring); K & K Constr, Inc v Dep’t of Environmental Quality, 267 Mich. App. 523, 530; 705
NW2d 365 (2005); Huggett v Dep’t of Nat Res, 232 Mich. App. 188, 191; 590 NW2d 747 (1998),
aff’d 464 Mich. 711 (2001). See also Huggett, 464 Mich. at 715 n 1.
2
The DEQ has “the authority, powers, duties, functions, and responsibilities under” the relevant
provisions of the NREPA. Executive Order No. 2011-1.
3
The farming activities exemption was amended by 2013 PA 98, effective July 2, 2013, which
added a subsection stating, in part, that “[b]eginning October 1, 2013, to be allowed in a wetland
without a permit, these activities shall be part of an established ongoing farming[] [or] ranching .
. . operation.” MCL 324.30305(2)(e)(i).
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be conducted in a wetland without a permit:
Farming, horticulture, silviculture, lumbering, and ranching activities,
including plowing, irrigation, irrigation ditching, seeding, cultivating, minor
drainage, harvesting for the production of food, fiber, and forest products, or
upland soil and water conservation practices. Wetland altered under this
subdivision shall not be used for a purpose other than a purpose described in this
subsection without a permit from the department. [MCL 324.30305(2)(e), as
amended by 1995 PA 59 (emphasis added).]
In particular, defendants contend that their activities constituted “prepar[ation] and cultivat[ion
of] the field for farming and ranching use,” so that their filling and cultivation of the wetland
qualified under the exemption for farming- and ranching-related activities.
In Huggett, 464 Mich. at 718-722, the Michigan Supreme Court interpreted the former
version of the “farming activities exemption” at issue in this appeal. See id. at 718. Other than
the opinion issued by this Court before the Supreme Court’s opinion in Huggett, see Huggett v
Dep’t of Nat Res, 232 Mich. App. 188, 191; 590 NW2d 747 (1998), aff’d 464 Mich. 711 (2001),
we have found no other authority interpreting the “farming activities exemption.” While we
recognize the factual distinctions between Huggett and the instant case, we believe that the
reasoning utilized by the Huggett Court is directly applicable to the circumstances of this case.
In Huggett, the plaintiffs sought to build a 200-acre cranberry farm on a 325-acre parcel
of land, which included 278 acres of wetland. Id. at 713. In order to build the farm, the
plaintiffs proposed “placing fill material in wetland areas, excavating and removing soil from
wetland areas, building dikes and culverts; digging irrigation ditches; and constructing a
reservoir and pumping station, roads, and an airstrip.” Id. The plaintiffs maintained in the trial
court and on appeal that their proposed activities qualified under the farming activities
exemption and were not, therefore, “subject to the wetland permit requirements[.]” Id. at 713-
While not directly relevant to the issues raised on appeal in this case, there appears to be
some confusion regarding the effect of 2013 PA 98 that merits discussion. The “[e]nacting
section 2” of 2013 PA 98 states as follows:
Part 303 of the natural resources and environmental protection act, 1994 PA 451,
MCL 324.30301 to 324.30327, is repealed effective 160 days after the effective
date, as published in the federal register, of an order by the administrator of the
United States environmental protection agency under 40 CFR 233.53(c)(8)(vi)
withdrawing approval of the state program under 33 USC 1344(g) and (h).
In Dep’t of Environmental Quality v Morley, 314 Mich. App. 306, 308 n 1; 885 NW2d 892
(2015), this Court noted that “Part 303 was repealed by 98 PA 2013.” However, a close reading
of the enacting section confirms that 2013 PA 98 did not repeal Part 303, but merely provided
that the part will be repealed in the event that the EPA withdraws approval of Michigan’s
program. Indeed, the Legislature amended various sections of Part 303 through 2013 PA 98 and
expressly repealed MCL 324.30325. It would be nonsensical for the Legislature to make
amendments to Part 303 and also repeal it in the same act.
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714. The plaintiffs argued that the list of exempt farming activities under MCL 324.30305(2)(e)
was not exhaustive, contending that “[t]he farming activities exemption . . . includes all of the
activities necessary for farming.” Id. at 718 (quotation marks omitted).
The Michigan Supreme Court, however, concluded that “[t]hese specific examples of
farming activities [under MCL 324.30305(2)(e)] relate to the operation, improvement,
expansion, and maintenance of a farm, or to the actual practice of farming.” Id. at 719.
Accordingly, although activities not specifically listed in the statute may be covered by the
farming activities exemption, “[u]nder the canon of ejusdem generis,[4] . . . the activities must be
of the kind, class, character, or nature of operating a farm or practicing farming.” Id. at 719.
Notably, in “constru[ing] both the prohibitions and exemptions in part 303 to make both viable,”
Huggett, 464 Mich. at 717, the Court recognized that “some of the activities allowed under §
30305 overlap with the activities prohibited under § 30304,” Huggett, 464 Mich. at 720. The
Court cited, as an example, MCL 324.30304’s prohibition of draining and MCL 324.30305’s
allowance of “minor drainage.” Huggett, 464 Mich. at 720. “To make both sections viable,” the
Court reasoned, “we must read the allowance for minor drainage only to allow drainage that fits
within the definition of ‘minor drainage,’ or, in other words, only to allow drainage that is
inconsequential.” Id.
Ultimately, the Supreme Court found that “[t]he activities [the] plaintiffs seek to exempt .
. . are not in the kind, class, character, or nature of operating a farm.” Id. More specifically, it
later reiterated that the “[p]laintiffs’ proposed activities unquestionably amount to more than
‘minor drainage’ and also entail filling and dredging in a wetland, which are prohibited
activities. These activities, then, do not fit within the farming activities exemption to the wetland
permit requirements.” Id. (emphasis added). Based on this reasoning, we conclude that
defendants’ acts of filling the wetland in this case were prohibited acts that did not fall under the
farming activities exemption. See id.
However, we recognize that the specific question raised by defendants in this appeal
differs, to a certain extent, from the question raised in Huggett. Here, defendants conceptualize
the issue as whether the placement of fill material in a wetland in order to grow grass thereon
constitutes “ ‘cultivating’ the land, as that term is used in Part 303,” or is at least “of ‘the same
kind, character or nature’ as cultivating, as allowed by Huggett.” Stated differently, we
understand defendants’ claim as arguing, in essence, that their placement of fill material
constitutes “cultivating” under MCL 324.30305(2)(e) and is, therefore, a limited exception to the
prohibition against filling in MCL 324.30304(a), similar to the way that “minor drainage” under
MCL 324.30305(2)(e) is a limited exception to the prohibition against draining surface water
from a wetland in MCL 324.30304(2)(d). We disagree that defendants’ act of adding fill
material to the wetland constitutes “cultivating,” or something similar to cultivation, which is
exempted from the permit requirements pursuant to MCL 324.30305(2)(e).
4
The canon of ejusdem generis restricts “the general term . . . to include only things of the same
kind, class, character, or nature as those specifically enumerated.” Huggett, 464 Mich. at 718-
719.
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“Cultivating” is not defined for purposes of Part 303 or elsewhere in the NREPA. See
MCL 324.30301. Accordingly, it is appropriate to consult a dictionary to determine its plain and
ordinary meaning. Epps v 4 Quarters Restoration LLC, 498 Mich. 518, 529; 872 NW2d 412
(2015). Merriam-Webster’s Collegiate Dictionary (11th ed) defines “cultivate” as “to prepare or
prepare and use for the raising of crops”, “to loosen or break up the soil about (growing plaints),”
“to foster the growth of [vegetables],” and “to improve by labor, care, or study.” Based on these
definitions, it appears that the plain and ordinary meaning of “cultivating” involves preparing,
improving, or tilling soil already present in a given growing area, and all of these activities are of
the “kind, class, character, or nature of operating a farm or practicing farming.” See Huggett,
464 Mich. at 719. Accordingly, we conclude that defendants’ extensive depositing of dirt in the
area does not fulfill the plain and ordinary meaning of “cultivating,” as defendants’ actions were
not intended to accomplish any of those goals.
Additionally, we acknowledge, without deciding, that it is possible that some actions that
may appear at first glance to constitute “filling” prohibited under § 30304 could be permitted as
“cultivating” under the farming activities exemption. In particular, defendants argue that the
placement of manure on farmland constitutes filling, but would be allowed as a farming activity
under MCL 324.30305(2)(e). Notably, however, “fill material” is defined for purposes of Part
303 as “soil, rocks, sand, waste of any kind, or any other material that displaces soil or water or
reduces water retention potential.” MCL 324.30301(1)(d) (emphasis added). To resolve the
overlap between MCL 324.30304 and MCL 324.30305 concerning draining, the Huggett Court
applied “a balanced reading” of those sections to only allow “inconsequential draining” to be
conducted without permit. Id. at 720 (emphasis added). Analogously, we conclude that even if
“cultivating” may encompass some limited placement of fill material in a wetland, this permitted
act must be balanced with the express prohibition of fill materials which displace water or soil or
reduce the wetland’s ability to retain water. See MCL 324.30301(1)(d); MCL 324.30304(a);
MCL 324.30305(2)(e).
Accordingly, although placing certain materials, such as manure, on a wetland in order to
cultivate the land may qualify under the farming activities exemption, we cannot conclude that
defendant’s extensive placement of soil and other materials in this case qualifies under the
exemption, especially given the definition of “fill material” in MCL 324.30301(1)(d). It is
apparent from the documentary evidence in the record that there was no genuine issue of
material fact that defendants’ extensive filling of the approximately 1.6-acre area5 was distinct
from activities routinely performed in “the operation, improvement, expansion, and maintenance
of a farm [or ranch], or to the actual practice of farming [or ranching],” see Huggett, 464 Mich. at
719, especially because it completely changed the character of the vast majority of that 1.6-acre
area so that it is now an upland meadow surrounded by wetland, except for the very small
portions of the area that still qualify as wetland despite the filling.6 See Allison, 481 Mich. at
5
As further discussed infra, the trial court concluded that only 1.2 acres of the total area filled
was subject to relief under the statute of limitations.
6
There is no dispute that the filled area was no longer a wetland. However, the parties dispute
the effect of the filling on the entire 145-acre wetland complex.
-8-
425; Calhoun, 297 Mich. App. at 11. Cf. MCL 324.30305(2)(e), as amended by 2012 PA 247
(now MCL 324.30305(2)(e)(iii)) (“Wetland altered under this subdivision shall not be used for a
purpose other than a purpose described in this subsection without a permit from the
department”.) (emphasis added).
Thus, we find that the trial court correctly determined that defendants’ filling activities
required a permit and properly granted summary disposition in favor of plaintiff pursuant to
MCR 2.116(C)(10).7
III. STATUTE OF LIMITATIONS
Defendants argue that the trial court erred by denying their motion for summary
disposition pursuant to MCR 2.116(C)(7) because plaintiff’s complaint was barred by both the
applicable statute of limitations and the doctrine of laches. We disagree.
A. STANDARD OF REVIEW
This Court reviews de novo both the applicability of a statute of limitations, Attorney Gen
v Harkins, 257 Mich. App. 564, 569; 669 NW2d 296 (2003), and the trial court’s ruling on a
motion for summary disposition, Kincaid v Cardwell, 300 Mich. App. 513, 522; 834 NW2d 122
(2013). “Summary disposition under MCR 2.116(C)(7) is appropriate when the undisputed facts
establish that the plaintiff’s claim is barred under the applicable statute of limitations.” Kincaid,
300 Mich. App. at 522. “Generally, the burden is on the defendant who relies on a statute of
limitations defense to prove facts that bring the case within the statute.” Id.
When reviewing a motion under MCR 2.116(C)(7), this Court must accept all
well-pleaded factual allegations as true and construe them in favor of the plaintiff,
unless other evidence contradicts them. If any affidavits, depositions, admissions,
or other documentary evidence are submitted, the court must consider them to
determine whether there is a genuine issue of material fact. If no facts are in
dispute, and if reasonable minds could not differ regarding the legal effect of
those facts, the question whether the claim is barred is an issue of law for the
court. However, if a question of fact exists to the extent that factual development
could provide a basis for recovery, dismissal is inappropriate. [Dextrom v
Wexford Co, 287 Mich. App. 406, 428-429; 789 NW2d 211 (2010) (citations
omitted).]
7
For similar reasons, the trial court properly denied defendants’ earlier motion for summary
disposition pursuant to MCR 2.116(C)(8). See Diallo v LaRochelle, 310 Mich. App. 411, 414;
871 NW2d 724 (2015) (“A motion for summary disposition under MCR 2.116(C)(8) tests the
legal sufficiency of a complaint.”) (quotation marks and citation omitted); Diem v Sallie Mae
Home Loans, Inc, 307 Mich. App. 204, 210; 859 NW2d 238 (2014) (“Summary disposition under
MCR 2.116(C)(8) is appropriate where the complaint fails to state a claim on which relief may
be granted.”) (quotation marks and citation omitted).
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B. ANALYSIS
1. APPLICABLE STATUTE OF LIMITATIONS
Pursuant to MCL 324.30315(1):
If, on the basis of information available to the department [of environmental
quality], the department finds that a person is in violation of this part or a
condition set forth in a permit issued under section 30311 or 30312, the
department shall issue an order requiring the person to comply with the
prohibitions or conditions or the department shall request the attorney general to
bring a civil action under section 30316(1).
Under MCL 324.30316(1), if the department so requests, “[t]he attorney general may commence
a civil action for appropriate relief, including injunctive relief[.]” The NREPA does not provide
a statute of limitations for enforcement actions. Harkins, 257 Mich. App. at 570.
“Statutes of limitations are found at Chapter 58 of the Revised Judicature Act (RJA),
MCL 600.5801 et seq.” Peabody v DiMeglio, 306 Mich. App. 397, 404; 856 NW2d 245 (2014).
In Harkins, 257 Mich. App. at 569-570, we concluded that the attorney general’s civil action
seeking restoration of a wetland following violations of Part 303 of the NREPA “comes within
the meaning of a ‘personal action’ as defined in [MCL 600.]5813” for two reasons: “it seeks to
‘repair some loss,’ ” and “[a]ctions brought by the Attorney General on behalf of government
departments are deemed personal actions.” (Citation omitted.) MCL 600.5813 provides that
“[a]ll other personal actions shall be commenced within the period of 6 years after the claims
accrue and not afterwards unless a different period is stated in the statutes.” Accordingly, given
the absence of a statute of limitations in the NREPA, we reasoned:
While MCL 324.30316 provides for the commencement of a civil action by the
Attorney General to seek “appropriate relief, including injunctive relief” for
permit violations, it does not state a period of limitations for bringing such
actions. The Revised Judicature Act specifies that § 5813 is the general statute of
limitations applying to “[a]ll other personal actions . . . unless a different period is
stated in the statutes.” This Court has held that “a civil cause of action arising
from a statutory violation is subject to the six-year limitation period found in §
5813, if the statute itself does not provide a limitation period.” DiPonio Constr
Co v Rosati Masonry Co, Inc, 246 Mich. App. 43, 56; 631 NW2d 59 (2001). There
being no period of limitations expressly applicable to actions brought under the
NREPA, the general limitation provisions of § 5813 apply. [Harkins, 257 Mich
App at 570-571.]
Thus, we concluded that the six-year statute of limitations under MCL 600.5813 applied to
plaintiff’s civil action against the defendant, which sought restoration of the wetland. Id. at 570-
572.
Defendants attempt to distinguish Harkins from this case, emphasizing that Harkins only
addressed § 5813’s application to equitable actions and the Harkins Court was not confronted
with the argument that MCL 600.5809(2) applies to claims for civil penalties. However, MCL
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600.5815 states, in relevant part, that “[t]he prescribed period of limitations shall apply equally
to all actions whether equitable or legal relief is sought.” MCL 600.5815. See also Harkins, 257
Mich. App. at 570 n 3 (quoting MCL 600.5815). Thus, even though Harkins focused on the
period of limitations for equitable relief, under MCL 600.5815, the limitation period for an
action does not hinge on the type of relief sought. Therefore, a necessary implication of Harkins
is that all enforcement actions under Part 303 are governed by the six-year period of limitations
under MCL 600.5813. Moreover, in Harkins, 257 Mich. App. at 568, the DEQ was seeking civil
fines in addition to a restoration order, the same relief that plaintiff sought in this case. Thus, we
reject defendants’ claim that Harkins is distinguishable and apply the holding therein as binding
precedent. See MCR 7.215(C)(2), (J)(1).
Further, even assuming, arguendo, that Harkins is not controlling, defendants’ argument
that MCL 600.5809(2) is the correct statute of limitations has no merit. MCL 600.5809(2)
provides, “The period of limitations is 2 years for an action for the recovery of a penalty or
forfeiture based on a penal statute brought in the name of the people of this state.” Defendants
characterize the instant action as being “based on a penal statute brought in the name of the
people of this state” because a state agency, the DEQ, has brought this action through the
attorney general and is seeking a penalty. However, the Michigan Supreme Court has
recognized that MCL 600.5809(2) “applies in the criminal context,” meaning that it “applies
only to civil forfeiture actions based on a penal statute.” People v Monaco, 474 Mich. 48, 55;
710 NW2d 46 (2006). No criminal statute or criminal action brought in the name of the people
of this state is at issue here.8 Further, when viewed in context, it is clear that the phrase “an
action for the recovery of a penalty or forfeiture” refers to an action to recover a penalty or
forfeiture that already has been assessed, i.e., a noncontractual money obligation, not an action
to impose a penalty. See Sweatt v Dep’t of Corrections, 468 Mich. 172, 179-180; 661 NW2d 201
(2003) (stating that statutory terms are not construed in a vacuum; rather, they must be read in
context). Accordingly, we reject defendants’ claim that the statute of limitations under MCL
600.5809(2) is applicable here.9
8
Although there are provisions providing for criminal liability under MCL 324.30316,
defendants were not held criminally liable in this case.
9
We also reject defendants’ reliance on the Michigan Department of Environmental Quality
Land and Water Management Division Compliance and Enforcement Guidance Manual, which
was proffered in the trial court, as a “guideline” that is binding on plaintiff with regard to the
applicable statute of limitations. As explained supra, we recognized in Harkins—which was
decided more than two years after the manual was issued, according to trial testimony and the
date on the manual’s cover—that the NREPA does not include a statute of limitations for
enforcement actions and “the general limitation provisions of § 5813 apply.”
Further, there is no indication that the manual constitutes a “guideline” that is binding on
the agency pursuant to MCL 24.203(7) (formerly MCL 24.203(6)). This Court has recognized
that in order to promulgate a guideline under the Administrative Procedures Act, the agency
must follow a specific procedure. See In re Pub Serv Com'n for Transactions Between Affiliates,
252 Mich. App. 254, 265; 652 NW2d 1 (2002); Faircloth v Family Indep Agency, 232 Mich App
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2. PLAINTIFF’S COMPLIANCE WITH THE STATUTE OF LIMITATIONS
Next, defendants contend that even if the six-year statute of limitations under MCL
600.5813 applies, plaintiff’s complaint is barred because its claim accrued more than six years
before the complaint was filed in December 2013. We reject defendants’ argument.
MCL 600.5827 provides, “Except as otherwise expressly provided, the period of
limitations runs from the time the claim accrues.” Generally, a “claim accrues at the time the
wrong upon which the claim is based was done regardless of the time when damage results.” Id.
Plaintiff filed suit on December 19, 2013, and conceded in the trial court that it was time-barred
from seeking enforcement of any violation occurring between 2005 and 2007. The trial court
limited its judgment accordingly, ordering defendants to restore the 1.2 acres of wetland “into
which fill material was placed after December 19, 2007.”
However, defendants maintain that plaintiff’s claim accrued in 2005 when they first
placed fill dirt in the wetland, and they suggest that allowing plaintiff to enforce violations that
occurred after 2007 invokes the “continuing violations” doctrine—also known as the “continuing
tort” or “continuing wrong” doctrine—which was abrogated by Garg v Macomb Co Community
Mental Health Servs, 472 Mich. 263, 284; 696 NW2d 646 (2005), amended 473 Mich. 1205
(2005). We disagree.
Under the continuing violations doctrine, “[w]here a defendant’s wrongful acts are of a
continuing nature, the period of limitation will not run until the wrong is abated; therefore, a
separate cause of action can accrue each day that defendant’s tortious conduct continues.”
Harkins, 257 Mich. App. at 572 (quotation marks and citation omitted; alteration in original); see
also Garg, 472 Mich. at 278-282. However, the Michigan Supreme Court has concluded that
“the ‘continuing violations’ doctrine is contrary to Michigan law” and “has no continued place in
the jurisprudence of this state.” Garg, 472 Mich. at 284, 290. Even though Garg was a
discrimination case involving a three-year statute of limitations, “[t]he holding of Garg does not
appear limited to discrimination cases; rather, the Court applied the plain text of the limitations
and accrual statutes” in this state. Terlecki v Stewart, 278 Mich. App. 644, 655; 754 NW2d 899
391, 403 n 6; 591 NW2d 314 (1998), citing MCL 24.203(6) (now MCL 24.203(7)) and MCL
24.224. Defendants have provided no evidence that such a process was followed before the
manual was issued here, and we have found no indication that such a process was followed. See
MCL 24.224. Rather, the relevant documents suggest that the contrary is true. The manual
explains, “This manual describes the process and procedure for the Land and Water Management
Division enforcement and compliance program, and implements the Department of
Environmental Quality Compliance and Enforcement Policy, 04-003,” and a revised version of
DEQ Compliance and Enforcement Policy 04-003 states at the top, “This document is intended
to provide guidance to staff to foster consistent application of the DEQ’s compliance and
enforcement processes and procedures. This document is not intended to convey any rights to
any person nor itself create any duties or responsibilities under the law. This document and
matters addressed herein are subject to revision.” (Emphasis added.) Further, Smith testified at
trial that the DEQ division that promulgated the manual no longer exists, and that the manual is
no longer in use by the DEQ.
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(2008). Accordingly, we have held that the continuing violations doctrine is no longer viable in
Michigan. See Rusha v Dept of Corr, 307 Mich. App. 300, 313 n 9; 859 NW2d 735 (2014);
Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich. App. 264,
285-286; 769 NW2d 234 (2009); Terlecki, 278 Mich. App. at 655.
At first glance, it may appear that plaintiff’s claims in this case are based on the now-
overruled doctrine. However, an examination of Garg reveals that plaintiff’s claims were not
based on that doctrine.
In Garg, the plaintiff filed suit in 1995 claiming unlawful retaliation under the Civil
Rights Act, MCL 37.2101 et seq. Garg, 472 Mich. at 270. She alleged, among other things, that
she was denied multiple promotions after filing a grievance in 1987. Id. at 270, 277. The Court
reasoned that MCL 600.5805, which sets forth the statute of limitations for tort actions, and
MCL 600.5827, which pertains to claim accrual, do not “permit[] a plaintiff to recover for
injuries outside the limitations period when they are susceptible to being characterized as
‘continuing violations.’ To allow recovery for such claims is simply to extend the limitations
period beyond that which was expressly established by the Legislature.” Id. at 281-282. The
Court held “that a person must file a claim under the [CRA] within three years of the date his or
her cause of action accrues, as required by § 5805(10).” Id. at 284. Applying the three-year
statute of limitations to the plaintiff’s claims in Garg, the Court ruled that “plaintiff’s claims of
retaliatory discrimination arising from acts occurring before June 21, 1992, are untimely and
cannot be maintained.” Id. at 286.
Thus, under Garg, each alleged violation of the statute was a separate claim with a
separate time of accrual. This Court came to the same conclusion in Tarlecki, explaining that,
under Garg, whether a claim is timely is determined by the statute of limitations applicable to
that claim, and that a “claim accrue[s] ‘[e]xcept as otherwise expressly provided . . . at the time
the wrong upon which the claim is based was done regardless of the time when damage results.’
” Tarlecki, 278 Mich. App. at 657, quoting MCL 600.5827. As such, the fact that some of a
plaintiff’s claims accrued outside the applicable limitation period does not time-bar all of the
plaintiff’s claims. See Garg, 472 Mich. at 286; Tarlecki, 278 Mich. App. at 657-658.
Here, defendants violated Part 303 each time they deposited fill material in the wetland.
See MCL 324.30304(a). Thus, even though plaintiff could not seek enforcement of the
violations that occurred before December 19, 2007, it was not barred from initiating an
enforcement action for the violations that occurred within the limitations period. Thus, the trial
court properly concluded that plaintiff’s claims arising from acts occurring after December 19,
2007, were not time-barred.
3. DOCTRINE OF LACHES
Lastly, defendants argue that the doctrine of laches bars plaintiff’s claims. We disagree.
“The doctrine of laches is triggered by the plaintiff’s failure to do something that should
have been done under the circumstances or failure to claim or enforce a right at the proper time.”
Attorney Gen v PowerPick Club, 287 Mich. App. 13, 51; 783 NW2d 515 (2010). However, the
doctrine is only “applicable in cases in which there is an unexcused or unexplained delay in
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commencing an action and a corresponding change of material condition that results in prejudice
to a party.” Pub Health Dep’t v Rivergate Manor, 452 Mich. 495, 507; 550 NW2d 515 (1996).
See also Knight v Northpointe, 300 Mich. App. 109, 114; 832 NW2d 439 (2013) (“If a plaintiff
has not exercised reasonable diligence in vindicating his or her rights, a court sitting in equity
may withhold relief on the ground that the plaintiff is chargeable with laches.”); Tenneco Inc v
Amerisure Mut Ins Co, 281 Mich. App. 429, 457; 761 NW2d 846 (2008) (“For laches to apply,
inexcusable delay in bringing suit must have resulted in prejudice.”). “The defendant has the
burden of proving that the plaintiff’s lack of due diligence resulted in some prejudice to the
defendant.” Twp of Yankee Springs v Fox, 264 Mich. App. 604, 612; 692 NW2d 728 (2004). The
Michigan Supreme Court previously stated that when a party files their claim within the relevant
period of limitation, “any delay in the filing of the complaint was presumptively reasonable, and
the doctrine of laches is simply inapplicable.” Michigan Ed Employees Mut Ins Co v Morris,
460 Mich. 180, 200; 596 NW2d 142 (1999). But this Court has held that courts may apply the
doctrine of laches to bar actions at law, even when the statute of limitations established by the
Legislature has not expired. Tenneco, 281 Mich. App. at 457.
In this case, it is likely that plaintiff did not “exercise[] reasonable diligence” in pursuing
its rights.10 See Knight, 300 Mich. App. at 114. However, defendants have not identified any
prejudice that would justify application of the doctrine of laches. See Yankee Springs, 264 Mich
App at 612. Defendants assert that due to plaintiff’s delay, the filled area is now “a cultivated
and stabilized field of pasture grass.” However, they do not explain how the presence of a
stabilized field of pasture grass demonstrates that plaintiff’s delay caused “a corresponding
change of material condition that result[ed] in prejudice to [defendants].” Rivergate Manor, 452
Mich. at 507 (emphasis added); see also Twp of Yankee Springs, 264 Mich. App. at 612. For
example, they identify no additional expense or harm that they have incurred, or that they will
incur, related to the pasture grass that has resulted exclusively from plaintiff’s delay. Instead,
they essentially argue that laches should apply because the area was successfully converted into
something of a different nature during the period of plaintiff’s delay. Cf. PowerPick Club, 287
Mich. App. at 51 (“The defense, to be raised properly, must be accompanied by a finding that the
delay caused some prejudice to the party asserting laches and that it would be inequitable to
ignore the prejudice so created.”). Moreover, defendants had notice from plaintiff that it may
assert its rights at any time, and they continued growing pasture grass on the field at their own
risk.
Most importantly, however, defendants are not entitled to assert the equitable defense of
laches because they came before the trial court with unclean hands. PowerPick Club, 287 Mich.
10
Plaintiff sent a violation notice to defendants in December 2010 and ordered them to restore
the area within 30 days, or within a time frame mutually agreed upon by the parties. After
defendants asserted that they were exempt from the wetland permitting requirements, plaintiffs
warned defendants in February 2011 that “if the site is not restored, . . . this violation may be
referred for escalated enforcement action.” Subsequently, one of plaintiff’s employees visited
the property once a year in 2011, 2012, and 2013, and observed that restoration efforts had not
begun. It is unclear why plaintiff waited until the end of 2013 to file an enforcement action.
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App at 50-52. “Our Supreme Court has observed that a party who has ‘acted in violation of the
law’ is not ‘before a court of equity with clean hands,’ and is therefore ‘not in position to ask for
any remedy in a court of equity.’ ” Id. at 52. As explained earlier in this opinion, defendants
violated Part 303 of the NREPA each time they deposited fill material in the wetland. See MCL
324.30304(a). Thus, the trial court properly concluded that the doctrine of laches does not bar
plaintiff’s claim in this case.
IV. RESTORATION RULING
Next, defendants contend that the trial court erred in ordering them to restore the area of
the wetland on which fill material was deposited after December 19, 2007. We disagree.
A. STANDARD OF REVIEW
The parties do not dispute that “the trial court’s factual findings are reviewed for clear
error.” Canjar v Cole, 283 Mich. App. 723, 727; 770 NW2d 449 (2009). “A finding of fact is
clearly erroneous when no evidence supports the finding or, on the entire record, this Court is left
with a definite and firm conviction that a mistake has been made.” King v Michigan State Police
Dep’t, 303 Mich. App. 162, 185; 841 NW2d 914 (2013). However, the parties dispute the
standard of review applicable to the trial court’s restoration order in light of contradictory
caselaw. Defendants assert that a restoration order constitutes equitable relief that is reviewed de
novo, while plaintiff argues that a restoration order is injunctive relief that is reviewed for an
abuse of discretion. We agree with plaintiff.
First, the applicable statute affords the trial court significant discretion in fashioning a
remedy for a violation of Part 303. MCL 324.30316(4) provides:
In addition to the penalties provided under subsections (1), (2), and (3), the court
may order a person who violates this part to restore as nearly as possible the
wetland that was affected by the violation to its original condition immediately
before the violation. The restoration may include the removal of fill material
deposited in the wetland or the replacement of soil, sand, or minerals. [Emphasis
added.]
“[T]he term ‘may’ presupposes discretion and does not mandate an action.” In re Weber Estate,
257 Mich. App. 558, 562; 669 NW2d 288 (2003). Accordingly, when “may” is used in the statute
or court rule authorizing the action at issue, “review for an abuse of discretion is appropriate.”
Detroit Edison Co v Stenman, 311 Mich. App. 367, 385 n 8; 875 NW2d 767 (2015).
Likewise, based on the relevant caselaw, we agree with plaintiff that the abuse of
discretion standard applicable to injunctive relief is the applicable standard of review for the trial
court’s restoration ruling. We previously recognized that an order to restore a wetland “is
essentially a mandatory injunction that historically has been considered an equitable remedy[.]”
People v Keeth, 193 Mich. App. 555, 562; 484 NW2d 761 (1992). Both this Court and the
Michigan Supreme Court have repeatedly stated that a trial court’s decision to grant injunctive
relief is reviewed for an abuse of discretion. See, e.g., Pontiac Fire Fighters Union Local 376 v
City of Pontiac, 482 Mich. 1, 8; 753 NW2d 595 (2008); Martin v Murray, 309 Mich. App. 37, 45;
867 NW2d 444 (2015); Janet Travis, Inc v Preka Holdings, LLC, 306 Mich. App. 266, 274; 856
-15-
NW2d 206 (2014).11 “An abuse of discretion occurs when the court’s decision falls outside the
range of reasonable and principled outcomes.” Ypsilanti Charter Twp v Kircher, 281 Mich. App.
251, 273; 761 NW2d 761 (2008).
B. ANALYSIS
As onerous as the remedy may seem, the trial court did not abuse its discretion when it
ordered defendants to restore the filled area.
11
Other cases have indicated that a trial court’s imposition of an injunction is reviewed de novo.
See, e.g., Williamstown Twp v Hudson, 311 Mich. App. 276, 289; 874 NW2d 419 (2015). The
confusion seems to arise from the fact that an injunction is an equitable remedy, see Terlecki,
278 Mich. App. at 663, and the fact that equitable relief is generally reviewed de novo, McDonald
v Farm Bureau Ins Co, 480 Mich. 191, 197; 747 NW2d 811 (2008) (“When reviewing a grant of
equitable relief, an appellate court will set aside a trial court’s factual findings only if they are
clearly erroneous, but whether equitable relief is proper under those facts is a question of law
that an appellate court reviews de novo.”).
However, we located no recent Michigan Supreme Court cases indicating that a trial
court’s imposition of an injunction is reviewed de novo. The most recent Supreme Court case
that we could find that seemed to even suggest de novo review was School District for City of
Holland, Ottawa & Allegan Cos v Holland Ed Ass’n, 380 Mich. 314, 319; 157 NW2d 206 (1968).
And, in reviewing the caselaw as a whole, it is clear that injunctive relief is carved out from the
general rule that equitable relief is reviewed de novo and is, instead, reviewed for an abuse of
discretion. See Pontiac Fire Fighters, 482 Mich. at 8; Michigan Coal of State Employee Unions
v Michigan Civil Serv Com'n, 465 Mich. 212, 217; 634 NW2d 692 (2001); Martin, 309 Mich. App.
at 45; Barrow v Detroit Election Com’n, 305 Mich. App. 649, 662; 854 NW2d 489 (2014) (“We
review for an abuse of discretion a circuit court’s decision whether to grant injunctive relief.”);
Wayne Co Retirement Sys v Wayne Co, 301 Mich. App. 1, 25; 836 NW2d 279 (2013) (“The
decision whether to grant injunctive relief is discretionary, although equitable issues are
generally reviewed de novo, with underlying factual findings being reviewed for clear error.”),
vacated in part on other grounds 497 Mich. 36 (2014); Cipri v Bellingham Frozen Foods, Inc, 235
Mich. App. 1, 9; 596 NW2d 620 (1999).
Notably, we acknowledged the competing standards of review in Cipri, 235 Mich. App. at
9, while reviewing a trial court’s denial of a request for a restoration order under the Michigan
Environmental Protection Act (“MEPA”):
Lastly, equitable issues are reviewed de novo, although the findings of fact
supporting the decision are reviewed for clear error. Webb v Smith (After
Remand), 204 Mich. App. 564, 568; 516 NW2d 124 (1994). However, “[t]he
granting of injunctive relief is within the sound discretion of the trial court,
although the decision must not be arbitrary and must be based on the facts of the
particular case.” Holly Twp v Dep’t of Natural Resources, 440 Mich. 891[, 891;
487 NW2d 753] (1992); see also Wayne Co Dep’t of Health v Olsonite Corp, 79
Mich. App. 668; 699-700, 706-707; 263 NW2d 778 (1977).
We ultimately determined that “the trial court did not abuse its discretion in denying plaintiff’s
claim for equitable relief under the MEPA.” Cipri, 235 Mich. App. at 10 (emphasis added).
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1. TRIAL COURT’S FINDINGS AND REASONING
“Injunctive relief is an extraordinary remedy that issues only when justice requires, there
is no adequate remedy at law, and there is a real and imminent danger of irreparable injury.”
Janet Travis, Inc, 306 Mich. App. at 274. We consider the following factors in determining
whether a trial court abused its discretion by issuing a permanent injunction:
(a) the nature of the interest to be protected, (b) the relative adequacy to the
plaintiff of injunction and of other remedies, (c) any unreasonable delay by the
plaintiff in bringing suit, (d) any related misconduct on the part of the plaintiff, (e)
the relative hardship likely to result to defendant if an injunction is granted and to
plaintiff if it is denied, (f) the interests of third persons and of the public, and (g)
the practicability of framing and enforcing the order or judgment. [Id. (quotation
marks and citation omitted).]
See also Kernen v Homestead Dev Co, 232 Mich. App. 503, 514; 591 NW2d 369 (1998).
Additionally, “[c]ourts balance the benefit of an injunction to a requesting plaintiff against the
damage and inconvenience to the defendant, and will grant an injunction if doing so is most
consistent with justice and equity.” Id. at 274-275.
A close examination of the trial court’s findings reveals that the court took into
consideration—albeit not explicitly—these factors in determining that restoration of the wetland
was warranted. Accordingly, for the reasons explained below, the trial court’s reasoning and
conclusion were not outside the range of principled outcomes. See Ypsilanti Charter Twp, 281
Mich. App. at 273.
The trial court first stated that it was not persuaded that the area at issue was in the
process of returning to a wetland. The court based this finding on its review of photographs
proffered by both parties during the trial, particularly photographs clearly showing that
defendants had filled the site and that pasture grass had been planted—two facts never disputed
by defendants. Additionally, Martin had testified that only 0.4 acres of the area, at most, would
revert back to wetland over time. Accordingly, the trial court’s finding was not clearly
erroneous, and it plainly supported its conclusion that restoration was necessary to protect the
public’s interest in preserving wetlands under the statute. See King, 303 Mich. App. at 185.
Next, the trial court found that defendants’ violation of the statute was not intentional and
acknowledged defendants’ argument that restoration was unwarranted since the filled area had
been improved because they “creat[ed] an upland area inside this wetland” that included various
forms of wildlife. The court, however, concluded that such a consideration was not relevant to
whether restoration is proper in this case, explaining, “I think what it comes down to is the Act
has to be enforced. There’s no provision in there that . . . says that it’s all right for me to fill in a
wetland if it’s going to improve it.” The trial court’s conclusion that this fact weighed in favor
of ordering restoration, regardless of defendants’ intent, is supported by the statute, see MCL
324.30316, and was not outside the range of principled outcomes. See Ypsilanti Charter Twp,
281 Mich. App. at 273.
The trial court then determined that the parties’ potential settlement discussions regarding
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the possibility of a “conservatory easement” were not relevant to its determination of whether
restoration was proper. It also acknowledged the contradictory testimony regarding the
prevalence of narrow-leaf cattails in the filled area, and whether that type of cattail constituted an
invasive species that is harmful to the wetland. It ultimately concluded that it “was not
convinced that there was really an invasive species issue either.”
On appeal, defendants argue that because the filled area was previously dominated by
narrow-leaf cattails, a nonnative species, it was improper for the trial court to order them to
restore the area with native species, thereby making “the filled wetland better than it was
before.” However, it is important to note that neither of the parties were certain as to which
species were present in the wetland before it was filled, and there was conflicting testimony
provided by defendants’ expert and plaintiff’s experts as to whether the area was previously
dominated by narrow-leaf cattails and whether such cattails are harmful. Martin, defendants’
expert, testified that the filled area was dominated by narrow-leaf cattails based on her review of
aerial photographs and her observations of the surrounding wetlands, although she thought there
were “probably” other wetland species present. Plaintiff’s experts testified to the contrary,
opining—based on aerial photographs, wetland samples, and other evidence—that the filled
expanse was “a pretty diverse area” including “a number of different habitat types,” such as
“large patches” of cattails as well as a mixture of assorted vegetation, including one section
“dominated by shrubs.” There also was conflicting testimony about whether narrow-leaf cattails
would be problematic to the restoration project or would render the restoration project futile.
However, in determining whether a finding was clearly erroneous, we must give deference “to
the trial court’s superior ability to judge the credibility of the witnesses who appeared before it.”
Ambs v Kalamazoo Co Rd Comm’r, 255 Mich. App. 637, 652; 662 NW2d 424 (2003); see also
MCR 2.613(C). Given the factual disputes below, the trial court’s finding that there was not “an
invasive species issue” was not clearly erroneous. See King, 303 Mich. App. at 185.
Furthermore, the trial court had the authority to order defendants “to restore as nearly as
possible the wetland that was affected by the violation to its original condition immediately
before the violation.” MCL 324.30316(4). Given the uncertainty regarding the wetland’s
original condition, the trial court did not exceed its authority under Part 303 by ordering
defendants to “[r]e-establish wetland vegetation in the restoration area by applying a DEQ-
approved native wetland plant seed mix and planting native Michigan species of wetland
shrubs.”
Next, the trial court determined that the wetland had been “compacted,” and found that
this fact was relevant to its consideration of whether the fill material should be removed. At
trial, defendants’ counsel expressed doubt regarding Smith’s testimony on behalf of the DEQ
that there were two to three feet of fill material throughout the filled area, based on the fact that
only two soil borings were conducted within the area. However, plaintiff’s witnesses provided
clear testimony regarding the depth of the fill and the heavy fill material that made further soil
boring impossible. Thus, the court’s finding on this matter was not clearly erroneous. See King,
303 Mich. App. at 185.
The trial court then noted that “[t]here was discussion concerning the statute of whether
or not the loss of the wetland could deprive the state” of certain benefits, but the court “did not
consider those to be requirements . . . because it was undisputed that the property had already
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been designated as a wetland.” The statute to which the court was referring is MCL 324.30302,
which sets forth the Legislature’s findings regarding wetland benefits. The experts who testified
in this case disagreed regarding the benefits that the filled area previously provided, but the trial
court seemed to presume that the wetland provided one or more of the benefits identified by the
Legislature because the area already had been designated as a wetland. Nonetheless, given the
fact that both parties acknowledged that the filled area provided some benefit, even though they
disputed the types of benefits and the extent of the benefits, the trial court did not clearly err in
concluding that restoration of the wetland would be beneficial given its designation as a wetland.
See King, 303 Mich. App. at 185.
However, defendants argue on appeal that the trial court should have considered the
specific effects of the filing on the surrounding wetland complex. Specifically, they contend that
“the wetland complex in which [they] placed fill dirt is not rare or imperiled, the fill has not
affected any endangered or threatened species, and has not materially lessened the capacity of
the wetland complex to function.”12 Likewise, they assert that restoring the filled area would
impose a disproportionate burden on them because “the placement of fill dirt on 1½ acres to
make this pasture . . . has not had any significant impact on the 145[-]acre wetland complex.”
Defendants rely on the wetland assessment report—prepared by their expert using methodology
that had not previously been used to analyze a filled wetland area that was not observed prior to
the filling—which concluded that restoration of the wetland would not materially improve the
benefits provided by the entire 145-acre wetland complex. To the contrary, Kolhoff testified on
behalf of the DEQ that “the fill eliminated the wetland . . . . It’s gone; it was a functioning
wetland that was ponded. It had habitat value; it possibly had storm water value, it had water
storage, water recharge, pollution control value and those values are gone.” Kolhoff conceded
that the area was “a small part of a larger complex,” but explained that “it occupied a unique
location compared to the rest of the wetland complex and it provided a different function than the
remaining wetland would.” He also noted that this case involves “a significant fill as far as a
permit issue is concerned,” because an “acre and a half is a substantial impact” for purposes of
issuing permits or reviewing violations. Consistent with his testimony, it was undisputed that
more than one acre of wetland was filled, which constitutes “a major project” for permitting
purposes. See MCL 324.30306(3)(c)(i). Thus, on this record, the trial court was justified in
concluding that restoration was warranted, and this conclusion was not outside the range of
principled outcomes. See Ypsilanti Charter Twp, 281 Mich. App. at 273.
Furthermore, the trial court expressly recognized the burden that restoration would place
12
MCL 324.30301(k), as amended by 2009 PA 120, identifies various wetland types as falling
within the “rare and imperiled wetland” category. Although whether a wetland was “rare and
imperiled” may seem significant, the phrase only appears in one other Part 303 section, MCL
324.30304b, which pertains to permits issued by the United States Army Corps of Engineers.
MCL 324.30304b(1)(b)(i). Moreover, there was conflicting testimony regarding whether the
area at issue previously was a rare and imperiled wetland as an “inundated shrub swamp,” and
Kolhoff testified that “scrub-shrub areas like that typically can house a number of threatened or
endangered or imperiled species.”
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on defendants, but weighed this fact against the potential precedential effect of allowing
defendants to destroy a wetland and expand their usable property without any recourse:
So I understand that that leaves the [defendants] in a difficult spot in that the
property has been filled, [sic] there’s the cost associated with reclearing the
property[,] but if I did not order restoration that means that the [defendants] would
in essence add an additional property to their land by filling this wetland.
Likewise, it later stated, “The Court is . . . cognizant of the impact of this decision[,] but I believe
that for the precedence value the Court cannot say that the [defendants] should not have to
restore the property in this matter.” In so stating, the trial court implicitly recognized plaintiff’s
and the public’s interest in ensuring that violations are remedied and prevented, and that
individual citizens are not incentivized to violate the law, and infringe upon the public’s interest
in preserving wetlands, in light of a likelihood that their actions will not be punished.
In sum, the trial court’s findings were not clearly erroneous, as it necessarily had to make
credibility determinations given the conflicting evidence. See MCR 2.613(C); Ambs, 255 Mich
App at 652. Under the circumstances, the restoration order was not an abuse of discretion, as the
court’s ruling was not “outside the range of reasonable and principled outcomes.” Ypsilanti
Charter Twp, 281 Mich. App. at 273.
2. DEFENDANTS’ ADDITIONAL ARGUMENTS REGARDING
THE RESTORATION ORDER
Defendants argue that this Court should consider factors identified in cases applying the
Michigan Environmental Protection Act (“MEPA”), Part 17 of the NREPA, MCL 324.1701 et
seq., to determine whether the restoration order was warranted in this case. See Kernen, 232
Mich. App. at 507. The MEPA provides, in relevant part, that
[t]he attorney general . . . may maintain an action in the circuit court having
jurisdiction where the alleged violation occurred or is likely to occur for
declaratory and equitable relief against any person for the protection of the air,
water, and other natural resources and the public trust in these resources from
pollution, impairment, or destruction. [MCL 324.1701(1).]
Because “virtually all human activities can be found to adversely impact natural resources in
some way or another,” factors were developed to determine “whether the impact of a proposed
action on wildlife is so significant as to constitute an environmental risk and require judicial
intervention.” City of Portage v Kalamazoo Co Rd Comm’r, 136 Mich. App. 276, 280-282; 355
NW2d 913 (1984). See also Nemeth v Abonmarche Dev, Inc, 457 Mich. 16, 31; 576 NW2d 641
(1998); Preserve The Dunes, Inc v Dep’t Of Environmental Quality & Technisand, Inc, 264
Mich. App. 257, 262 n 3; 690 NW2d 487 (2004). The MEPA factors identified by defendants
“are not mandatory, exclusive, or dispositive,” Preserve the Dunes, 264 Mich. App. at 262
(quotation marks and citation omitted), and they were developed given the need for “the courts to
give precise meaning to” the statutory language of Part 17 of the NREPA, Portage, 136 Mich
App at 281-282. Because those factors were developed without considering the statute at issue
in this case, MCL 324.30316, we must refrain from deviating from the clear text of the statute
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and interjecting judicially crafted meaning into the words written by the Legislature and signed
into law by the Executive. See Huggett, 464 Mich. at 717. Accordingly, we decline to consider
those factors, and we cannot conclude that the trial court abused its discretion by failing to
consider those elements, especially because there is no legal authority mandating or suggesting
their application in cases arising under Part 303. See Robinson v City of Lansing, 486 Mich. 1,
15; 782 NW2d 171 (2010) (“[I]t is well established that we may not read into the statute what is
not within the Legislature’s intent as derived from the language of the statute.”) (quotation marks
and citation omitted); In re Keyes Estate, 310 Mich. App. 266, 272; 871 NW2d 388 (2015)
(“When the Legislature includes language in one part of a statute that it omits in another, this
Court presumes that the omission was intentional.”).
Defendants also cite cases denying or reversing restoration orders under the federal
CWA. According to one of the cases cited by defendants, the Eighth Circuit determines whether
a restoration order is appropriate by considering whether the order
(1) is designed to confer maximum environmental benefit, (2) is practical and
feasible from an environmental and engineering standpoint, and (3) takes into
consideration the financial resources of the defendant, and (4) includes
consideration of defendant’s objections. [US v Huseby, 862 F Supp 2d 951, 966
(D Minn, 2012).]
Again, while the trial court could have considered these factors when deciding whether to order
restoration, it would be inappropriate for us to conclude that consideration of these factors is
mandatory when determining whether a restoration order is warranted for purposes of Part 303
when the Legislature did not so restrict the trial court’s discretion.
More generally, however, we reject defendants’ reliance on federal law as a basis for
reversal. In Huggett, the Michigan Supreme Court rejected this Court’s reliance, in determining
the scope of the farming activities exemption, on the “analogous, similarly worded” provisions
of the CWA and its belief that the WPA was intended to “be consistent with, and at least as
stringent as,” the CWA. See Huggett v Dep’t of Nat Res, 232 Mich. App. 188, 194-195; 590
NW2d 747 (1998). The Supreme Court stated, “[T]he Court of Appeals relied on federal law to
reach its conclusion. Because we can discern the Legislature’s intent on this question from the
wetland provisions themselves, we need not concern ourselves with federal law in this case. For
these reasons, we disagree with these aspects of the Court of Appeals opinion.” Huggett, 464
Mich. at 722 (citations omitted). Similarly, the Michigan Supreme Court noted in Garg, 472
Mich. at 282, “While federal precedent may often be useful as guidance in this Court's
interpretation of laws with federal analogues, such precedent cannot be allowed to rewrite
Michigan law.” There is no indication in the statute at issue that trial courts are required to
consider specific factors before ordering restoration of a wetland, or that we are required to
consider specific factors when reviewing a trial court’s order of restoration on appeal.
Accordingly, we reject defendants’ reliance on federal caselaw in this case given the extensive
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discretion13 under MCL 324.30316(4) for the trial court to order restoration of the wetland.
V. CIVIL FINE
Defendants next argue that the trial court erroneously ordered them to pay a $10,000 fine.
Given the trial court’s stated reasons for imposing the fine pursuant to MCL 324.30316(1), the
extensive discretion afforded under the statute, and our standard of review, we cannot conclude
that the trial court abused its discretion.
A. STANDARD OF REVIEW
MCL 324.30316(1) states that “[i]n addition to any other relief granted under this section,
the court may impose a civil fine[.]” Again, “the term ‘may’ presupposes discretion and does not
mandate an action.” In re Weber Estate, 257 Mich. App. at 562. Accordingly, we conclude that
the trial court’s imposition of a civil fine under Part 303 is reviewed for an abuse of discretion.
See Detroit Edison Co, 311 Mich. App. at 385 n 8.
B. ANALYSIS
In relevant part, MCL 324.30316(1) provides that “[i]n addition to any other relief
granted under this section, the court may impose a civil fine of not more than $10,000.00 per day
of violation.” As discussed above, defendants violated the NREPA by placing fill material in a
wetland without a permit. Thus, under Part 303 of the NREPA, the trial court was authorized to
impose a maximum fine of $10,000 per day.
In its ruling on the record, the trial court first stated that plaintiff had requested the
imposition of a $50,000 fine and expressly noted that the statute authorized up to $10,000 per
day, “which is high.” The court then considered the fines that it had ordered in “some other
cases . . . where there was of course just blatant disregard of the Department’s orders and total
lack of cooperation.” Accordingly, it determined that a total fine of $10,000 was appropriate in
this case. The court stated, “I think the violation occurred in 2008[,] [s]o we’ve got a lot of years
there.” Accordingly, it concluded that it would characterize the fine as $2,000 per year from
2010 through 2015, presumably in light of the fact that defendants first received notice of their
violation, and were first ordered to remedy the violation, in 2010. In so reasoning, the trial court
only considered a portion of defendants’ ongoing violation of Part 303. Additionally, when
divided per diem, based on the limited time frame established by the court, the fine imposed was
13
Notably, the Legislature specified numerous criteria for plaintiff to consider when determining
whether to approve a permit for a prohibited activity under MCL 324.30304, including many of
the factors advanced by defendants on appeal. See MCL 324.30311. The fact that the
Legislature could have but chose not to provide such guidance for trial courts determining
whether to undo prohibited activities in fashioning a remedy further suggests that a trial court has
discretion. See In re Keyes Estate, 310 Mich. App. at 272 (“When the Legislature includes
language in one part of a statute that it omits in another, this Court presumes that the omission
was intentional.”).
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only approximately $5.50 per day, as opposed to the $10,000 per day fine authorized by statute.
Thus, the trial court’s imposition of a fine of $10,000 in total was not an unprincipled outcome,
especially, as defendants emphasize, in light of the lack of evidence that they acted in willful
defiance of the law. See Ypsilanti Charter Twp, 281 Mich. App. at 273.
Defendants again rely on federal law to show that the fine was outside the range of
principled outcomes, but this reliance is misplaced. Two of the cases cited by defendants, US v
Bay-Houston Towing Co, Inc, 197 F Supp 2d 788 (ED Mich, 2002), and Catskill Mountains
Chapter of Trout Unlimited, Inc v City of New York, 244 F Supp 2d 41 (ND New York, 2003),
rev’d in part and remanded by 451 F3d 77 (2nd Cir, 2006), applied § 1319 of the CWA.
Defendants focus on § 1319(d), which provides, in relevant part:
In determining the amount of a civil penalty the court shall consider the
seriousness of the violation or violations, the economic benefit (if any) resulting
from the violation, any history of such violations, any good-faith efforts to
comply with the applicable requirements, the economic impact of the penalty on
the violator, and such other matters as justice may require. [33 USC 1319(d).]
The Michigan Legislature did not direct courts to consider these such factors when imposing
civil fines under MCL 324.30316(1), and we may not read such a requirement into the statute.
Cf. Garg, 472 Mich. at 282; Huggett, 464 Mich. at 722.
In the other case cited by defendants, US v Bradshaw, 541 F Supp 880, 883 (D Maryland,
1981), the statutory section under which the government sought a civil penalty is not readily
apparent. The district court simply determined that it was “unnecessary to impose any [civil
penalties] because the [d]efendant immediately ceased his activities upon notice of a possible
violation.” Id. Here, however, the trial court had the discretion to reach the conclusion that it
did. Notably, the statute at issue, MCL 324.30316(1), does not limit the trial court’s discretion
by preventing it from imposing a fine in situations where the violators immediately ceased their
illegal activities, as defendants claim they did. Further, even if defendants did cease their illegal
activities, they failed to remedy their violation before the DEQ initiated this action seeking
restoration of the wetland and other relief, which was three years after the DEQ first notified
them of their violative activities.
We also disagree with defendants that the penalty-related provisions in the Michigan
Department of Environmental Quality Land and Water Management Division Compliance and
Enforcement Guidance Manual admitted below establish that the trial court abused its discretion
in this case. As previously explained, there is no evidence indicating that the manual constitutes
a guideline that is binding on plaintiff.14 Likewise, there is no indication in the statute that the
Legislature intended for the trial court’s discretion to be limited by any provisions in a
compliance manual, assuming that it was in effect during the events at issue in this case.
14
See the discussion in footnote 9.
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VI. CONCLUSION
Defendants have failed to establish that any of their claims raised on appeal warrant
relief.
Affirmed.
/s/ Michael J. Riordan
/s/ Patrick M. Meter
/s/ Donald S. Owens
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