Department of Environmental Quality v. Eric Kirby & Sons LLC, 351285

In 2013 David Schmidt (Eric Kirby & Sons, LLC) purchased a 120-acre Arenac County parcel and filled/altered wetlands to expand farmable land without obtaining permits despite multiple DEQ warnings.
Kirby’s expert conceded 3.29 acres were regulated wetlands; the trial court found 6.21 acres of wetland on the property and nearly five acres were illegally impacted.
The DEQ sued in Ingham Circuit Court seeking injunction, restoration, and civil penalties; the court ordered restoration and assessed fines of $168,000 (Part 303), $6,250 (Part 31), and $2,500 (Part 91).
Kirby moved to change venue to Arenac County and later asserted a right to a jury; the court denied the venue change and found Kirby had waived any jury right by not timely demanding and paying for a jury.
The court permitted the DEQ to file a 31‑page combined summary‑disposition motion (over the 20‑page default limit); Kirby’s late response and failure to seek extensions factored into the court’s rulings.
The $168,000 Part 303 fine was based on the DEQ penalty matrix for a multi‑day violation (1,814 days); the court characterized the DEQ’s calculation as forgiving and concluded the fine was not an abuse of discretion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Change of venue	Ingham is proper and DEQ’s choice should be afforded deference	Most witnesses and the property are in Arenac/Bay Counties so venue should move for convenience	Denied — Kirby failed to make a persuasive showing of inconvenience; court’s denial not clearly erroneous
Jury trial right	Kirby waived jury by not filing a demand or paying the fee	7th Amendment preserves right to civil jury trial in this matter	Denied — Kirby waived; federal 7th Amendment jury claim does not create a state-court right post‑Morley
Motion page‑limit & related evidentiary rulings	DEQ requested leave to exceed page limit and timely filed its longer brief	Excess brief violated MCR 2.119 and tainted subsequent rulings (fruit of poisonous tree)	Denied — trial court acted within discretion to allow longer brief; Kirby’s late response and stipulations control exclusion rulings
Fine assessment under Part 303	DEQ’s penalty matrix supports $168,000 given multi‑day violation, acreage, and impact	Fine excessive compared to other cases	Affirmed — court did not abuse discretion; matrix, length of violation, size of impact, and recalcitrance support fine

Dimmitt & Owens Financial Inc v Deloitte & Touche (ISC), LLC, 481 Mich 618 (2008) (clear‑error standard for reviewing venue denials)
Chilingirian v City of Fraser, 182 Mich App 163 (1989) (plaintiff’s venue choice receives deference; movant must show persuasive inconvenience)
Dep’t of Environmental Quality v Morley, 314 Mich App 306 (2015) (Seventh Amendment does not create a federal constitutional right to a jury in state‑court civil NREPA actions)
Dep’t of Environmental Quality v Gomez, 318 Mich App 1 (2016) (discusses Part 303 fine calculations and review for abuse of discretion)
Maldonado v Ford Motor Co, 476 Mich 372 (2006) (articulating abuse‑of‑discretion standard)