Rondigo v. Twp. of Richmond

Citation641 F.3d 673
Decision Date28 July 2011
Docket NumberNo. 09–2185.,09–2185.
PartiesRONDIGO, L.L.C., a Michigan limited liability company; Dolores Michaels, aka Nicolina A. Michaels; Renee Michaels, Plaintiffs–Appellees,v.TOWNSHIP OF RICHMOND, et al., Defendants,andWayne Whitman; Steven Mahoney; Teresa Seidel; Matthew Flechter and Anne Hokanson, in their individual capacities, Defendants–Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

OPINION TEXT STARTS HERE

ARGUED: C. Adam Purnell, Office of the Michigan Attorney General, Lansing, Michigan, for Appellants. Cindy Rhodes Victor, The Victor Firm, PLLC, Troy, Michigan, for Appellees. ON BRIEF: C. Adam Purnell, Office of the Michigan Attorney General, Lansing, Michigan, for Appellants. Cindy Rhodes Victor, The Victor Firm, PLLC, Troy, Michigan, for Appellees.Before: McKEAGUE and STRANCH, Circuit Judges; MAYS, District Judge. *

OPINION

McKEAGUE, Circuit Judge.

Plaintiffs Rondigo, LLC and Dolores Michaels operate a farm in Richmond Township, Michigan. In 2006, Richmond Township officials became concerned about composting operations at the farm. Eventually, these concerns led to inspections and regulatory actions by State of Michigan officials and a state court action to prohibit composting at the site. In January 2008, plaintiffs filed a 54–page, six-count complaint in federal court, asserting various state and federal claims against Richmond Township and its Supervisor, a citizens coalition, numerous individual citizens, and several state officials. The district court granted the state officials' motion to dismiss all claims against them except the equal protection claim. Because the ruling on the state defendants' motion to dismiss is a denial of qualified immunity on the equal protection claim, the state defendants have appealed this interlocutory ruling under the collateral order doctrine. They contend plaintiffs' complaint does not contain sufficient fact allegations to make out a valid claim for denial of equal protection. For the reasons that follow, we agree and therefore reverse the denial of qualified immunity to the state defendants.

I. FACTUAL AND PROCEDURAL BACKGROUND1

Plaintiff Rondigo, LLC (Rondigo) is a Michigan limited liability company which conducts business and has its principal place of business in Macomb County, just northeast of Detroit. Rondigo is owned by plaintiff Dolores Michaels. Since 2004, Rondigo and Dolores Michaels (“the Rondigo plaintiffs) have operated a farm on a 72–acre parcel of property on 32 Mile Road in Richmond Township. On February 17, 2006, the Rondigo plaintiffs received confirmation from the Michigan Department of Agriculture (“MDA”) that their operations at the Richmond Township location were determined to meet the Michigan Agriculture Environmental Assurance Program (“MAEAP”) cropping system requirements, verifying their compliance with cost-effective pollution prevention practices and environmental regulations. MAEAP verification is significant in that it represents a verification, based on the applicant's disclosures, that farm operations comply with generally accepted agricultural and management practices (“GAAMPs”). Compliance with GAAMPs provides immunity under state law from suit or liability for maintaining a public or private nuisance. M.C.L. § 286.473(1).

Once this MAEAP verification was obtained, Rondigo consulted with Richmond Township Supervisor Gordon Furstenau in relation to its proposed nutrient management plan, which would include on-farm composting. Rondigo applied for and, on February 24, 2006, was granted a drain permit by the Macomb County Department of Public Works, allowing extension of a driveway on the Richmond Township property to facilitate on-farm composting. The same day, however, Rondigo also received a stop work order from Township Supervisor Furstenau.

Because the stop work order was nonspecific, Rondigo sought explanation, but did not receive satisfaction. “Clarification” came in the form of a March 7, 2006 letter from Wayne Whitman, MDA Environmental Manager, to Supervisor Furstenau, confirming that Rondigo's proposal to conduct composting activities at the Richmond Township site would necessitate updating the plan that had been submitted to MDA for MAEAP verification. Meanwhile, Richmond Township had commenced action against Rondigo in state court, seeking to enjoin further work on the driveway extension. Twp. of Richmond v. Rondigo, LLC, No. 06–1054–CZ (Macomb Cir.Ct.).

While this state court litigation was pending, in the Summer of 2006, state regulatory authorities began receiving citizen complaints from Richmond Township about the 32 Mile Road operation. In response to these complaints, MDA Resource Analyst Joe Kelpinsky conducted an inspection of the 32 Mile Road property on October 18, 2006. He found no non-compliance with GAAMPs, but suggested there could be a need for a compost management plan. Subsequently, by letter dated October 30, 2006, MDA Environmental Manager Wayne Whitman advised Rondigo of the need to submit a compost operations plan, or letter of intent to develop a plan, by December 18, 2006. Another citizen complaint of odors coming from the 32 Mile Road operation was received by MDA on November 9, 2006. This led to another MDA inspection of the property on November 17, 2006, by Stephen Mahoney, who also detected no excessive odors.

On February 5, 2007, following yet another complaint-responsive site inspection on January 10, Mahoney sent a letter to Rondigo recommending certain actions. Mahoney identified the observed stockpiling of leaves at the site as being inconsistent with GAAMPs. Further, Mahoney identified three specific deficiencies in various plans submitted by Rondigo to MDA in January. The documents submitted consisted of a revised site plan, updated nutrient management plan and compost operations plan. The plans are comprehensive. The deficiencies identified by Mahoney appear to be minor and easily correctable, but they reflect concern about the high water table in the area and the potential impact of composting on groundwater.

Rondigo could not move the stockpiled leaves, however, because the temporary restraining order issued by the Macomb Circuit Court prohibited the work on the driveway that was prerequisite to moving the leaves. Nonetheless, Mahoney sent another letter to Rondigo, dated April 12, 2007 and actually mailed on April 17, requiring the leaves be removed by April 19. The letter confirmed that the revised plans received by MDA “addressed proper composting at the Rondigo facility,” but showed “a seasonal high water table of less than two feet below the ground surface for nearly all of the proposed composting area identified in your Site Plan and at the current staging area where yard waste (leaves) have been placed on your property.” R. 1, Complaint ex. 26. “For this reason,” the letter continued, “MDA has determined that your facility does not conform to the Generally Accepted Agricultural and Management Practices (GAAMPs).” To bring the property into conformance with GAAMPs, Rondigo had to remove all yard waste from the property by April 19, or the matter would be referred to the Michigan Department of Environmental Quality (“MDEQ”) for pollution investigation. Consistent with Mahoney's letter, Rondigo also received a letter from Janice Wilford, MAEAP Program Manager, also dated April 12 and mailed on April 17, advising that the MAEAP verification would be withdrawn unless the leaves were removed by April 19.

Finding itself “between leaves and a hard place,” Rondigo filed an emergency motion in the pending state court action on April 19, 2007. The state court conducted a conference in chambers and secured MDA's agreement not to take any action in relation to the 32 Mile Road property until after a ruling issued on Rondigo's pending motion to lift the temporary restraining order so that it could remove leaves from the property. On May 8, 2007, the Macomb Circuit Court issued an order temporarily lifting the restraining order for a period of fourteen days (i.e., through May 22, 2007) “to enable [Rondigo] to move the leaves and be in compliance with the proposed site plan submitted to the MDA.” R. 1, Complaint ex. 32. Yet, MDA was not content to wait and see whether Rondigo actually removed the leaves by May 22. Inasmuch as the Macomb Circuit Court had issued its ruling, thus releasing MDA from its agreement to withhold action, Whitman, by letter dated May 17, 2007, advised Rondigo that the matter was being referred to MDEQ because MDA had not received confirmation that the leaves had been removed. Then, by letter dated June 8, 2007, Rondigo was advised that the MAEAP verification was being withdrawn, for the reasons set forth in Whitman's letter, until the operation was brought back into compliance with GAAMPs.

The Rondigo plaintiffs allege that these two letters fail to give notice specifically of how their operations failed to conform to GAAMPs. Yet, Whitman's letter clearly states that the 32 Mile Road farm was deemed to be out of compliance with GAAMPs because MDA had not received confirmation that yard waste, which was deemed to threaten groundwater because of the seasonal high water table in the area, had been removed. Still, even though the Rondigo plaintiffs clearly knew they had to remove the stockpiled leaves to satisfy MDA, and even though they had managed to secure an order temporarily lifting the restraining order so they could remove the leaves, the complaint is devoid of any averment that the leaves were in fact moved.

Further, plaintiffs complain of the ensuing MDEQ inspection of the property by Tracy Kecskemeti on June 21, 2007. According to her interoffice notes, Kecskemeti found four large leaf piles on site, but she noted that the property was very dry at the time and there did not appear to be any runoff from this area to surface waters. She also...

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