No. 328033
STATE OF MICHIGAN COURT OF APPEALS
November 17, 2016
FOR PUBLICATION; Ingham Circuit Court; LC No. 13-001426-CE
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,
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 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
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 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
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:
- Remove all fill material from the restoration area described above;
- 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;
- 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;
- Monitor the restoration area for five years after the date of completion; and
- 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
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).
B. ANALYSIS
The Natural Resources and Environmental Protection Act (“NREPA“),
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.”
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
The plaintiffs argued that the list of exempt farming activities under
The Michigan Supreme Court, however, concluded that “[t]hese specific examples of farming activities [under
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
“Cultivating” is not defined for purposes of Part 303 or elsewhere in the NREPA. See
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
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
425; Calhoun, 297 Mich App at 11. Cf.
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).]
B. ANALYSIS
1. APPLICABLE STATUTE OF LIMITATIONS
Pursuant to
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
“Statutes of limitations are found at Chapter 58 of the Revised Judicature Act (RJA),
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
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
Further, even assuming, arguendo, that Harkins is not controlling, defendants’ argument that
Next, defendants contend that even if the six-year statute of limitations under
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 (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,
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 Terlecki, 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.’ ” Terlecki, 278 Mich App at 657, quoting
Here, defendants violated Part 303 each time they deposited fill material in the wetland. See
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 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
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
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
IV. RESTORATION RULING
Next, defendants contend that the trial court erred in ordering them to restore
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.
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; 856NW2d 206 (2014).11 “An abuse of discretion
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.
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
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
The trial court then determined that the parties’ potential settlement discussions regarding
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
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.”
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
been designated as a wetland.” The statute to which the court was referring is
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,
Furthermore, the trial court expressly recognized the burden that restoration would place
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
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,
[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,
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
discretion13 under
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
A. STANDARD OF REVIEW
B. ANALYSIS
In relevant part,
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
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
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
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.
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
Notes
Further, there is no indication that the manual constitutes a “guideline” that is binding on the agency pursuant to
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).