896 N.W.2d 39
Mich. Ct. App.2016Background
- Defendants purchased ~54 acres and placed fill dirt (2005–2010) to create a horse pasture, filling ~1.6 acres of an identified wetland. DEQ inspected in 2010, issued a violation notice, and concluded a permit would not have been approved. Defendants stopped adding fill after notice but seeded pasture grass.
- DEQ initiated enforcement in December 2013 seeking restoration and civil fines; DEQ conceded it could not seek relief for fill placed 2005–2007 due to limitations.
- Defendants moved for dismissal under MCR 2.116(C)(8)/(C)(10) arguing the farming/ranching exemption (cultivating) applied; the trial court denied (C)(8) and granted (C)(10) in favor of DEQ on liability (filling is prohibited and not cultivating).
- Bench trial on remedies: court ordered removal of fill and restoration of approximately 1.2 acres filled after Dec. 19, 2007, with monitoring and invasive-control for 5 years, and imposed a $10,000 civil fine.
- On appeal the Court of Appeals affirmed: (1) filling was not covered by the farming/ranching exemption including “cultivating”; (2) the six-year statute of limitations governed and barred only pre-2008 acts; (3) laches did not bar relief; (4) restoration and a discretionary fine were within the court’s authority and not an abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether filling the wetland qualifies under Part 303 farming/ranching exemption ("cultivating") | Filling was not "cultivating" and exceeded the exemption; prohibited without permit | Placement of fill to prepare pasture is "cultivating" or same kind and thus exempt | Filling is prohibited; extensive placement of fill is not "cultivating" under exemption (Huggett controls) |
| Applicable statute of limitations | Six-year period (MCL 600.5813) applies to Part 303 enforcement actions | Two-year penal recovery period (MCL 600.5809(2)) or accrual in 2005 bars suit | Six-year rule applies (Harkins controlling); DEQ may pursue violations occurring within six years prior to filing |
| Whether continuing-violation / accrual argument or laches bars relief | DEQ may enforce continuing violations within limitations; laches inapplicable | Claim accrued at first fill (2005) and laches/continuing-wrong should bar later enforcement | Each placement accrues separately; Garg rejects continuing-violation tolling; laches fails (no demonstrated prejudice and unclean hands) |
| Whether restoration order and $10,000 fine were proper remedies | Trial court may order restoration and discretionary fine under MCL 324.30316; remedial order reasonable | Restoration disproportionate, federal factors and agency guidance should limit relief; fine excessive | Restoration and modest $10,000 fine were within statutory discretion and not an abuse of discretion; federal factors not mandatory |
Key Cases Cited
- Huggett v. Dep’t of Nat. Res., 464 Mich 711 (Mich. 2001) (interpreting scope of the Part 303 farming/ranching exemption and holding filling/dredging exceed the exemption)
- Attorney Gen. v. Harkins, 257 Mich App 564 (Mich. Ct. App. 2003) (six-year statute of limitations under MCL 600.5813 governs Part 303 enforcement actions)
- Garg v. Macomb Co. Comm. Mental Health Servs., 472 Mich 263 (Mich. 2005) (abrogating the continuing-violations doctrine; each wrong accrues when committed)
- Pontiac Fire Fighters Union Local 376 v. City of Pontiac, 482 Mich 1 (Mich. 2008) (standard that injunctive relief is reviewed for abuse of discretion)
- K & K Constr., Inc. v. Dep’t of Env. Quality, 267 Mich App 523 (Mich. Ct. App. 2005) (context on state wetland protection and relation to federal CWA)