Attorney General ex rel. Dept. of Natural Resources v. Huron County Road Com'n, Docket Nos. 147255

• Decision Date: 04 August 1995
• Docket Number: Docket Nos. 147255,159839
• Citation: 212 Mich.App. 510,538 N.W.2d 68
• Parties: ATTORNEY GENERAL of the State of Michigan ex rel. DEPARTMENT OF NATURAL RESOURCES, Plaintiff-Appellant, v. HURON COUNTY ROAD COMMISSION, Vernon L. Rounds and Philp and Branch Drain Drainage District, Defendants-Appellees. ATTORNEY GENERAL of the State of Michigan ex rel. DEPARTMENT OF NATURAL RESOURCES, Plaintiff-Appellant, v. HURON COUNTY ROAD COMMISSION, Huron County Drain Commission and Philp and Branch Drain Drainage District, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 68

538 N.W.2d 68

212 Mich.App. 510

ATTORNEY GENERAL of the State of Michigan ex rel. DEPARTMENT

OF NATURAL RESOURCES, Plaintiff-Appellant, v. HURON COUNTY ROAD COMMISSION, Vernon L. Rounds and Philp and Branch Drain Drainage District, Defendants-Appellees.

ATTORNEY GENERAL of the State of Michigan ex rel. DEPARTMENT

OF NATURAL RESOURCES, Plaintiff-Appellant, v. HURON COUNTY ROAD COMMISSION, Huron County Drain Commission and Philp and Branch Drain Drainage District,

Defendants-Appellees.

Docket Nos. 147255, 159839.

Court of Appeals of Michigan.

Submitted April 4, 1995, at Lansing.

Decided Aug. 4, 1995, at 9:00 a.m.

Released for Publication Oct. 10, 1995.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Thomas J. Emery and Stephen M. Rideout, Assistant Attorneys General, for plaintiff.

Hubbard, Fox, Thomas, White & Bengston, P.C. by Geoffrey H. Seidlein, Lansing, for defendants.

Before CORRIGAN, P.J., and MARKEY and ERNST, ^* JJ.

CORRIGAN, Presiding Judge.

Plaintiff appeals as of right the dismissal of its complaint for injunctive and declaratory relief in these consolidated cases. The complaint alleged that a drainage project in the Philp Drain Drainage District in Huron County violated the Wetland Protection Act (WPA), M.C.L. § 281.701 et seq.; M.S.A. § 18.595(51) et seq., the Inland Lakes and Streams Act (ILSA), M.C.L. § 281.951 et seq.; M.S.A. § 11.475(1) et seq., and the Michigan Environmental Protection Act (MEPA), M.C.L. § 691.1201 et seq.; M.S.A. § 14.528(201) et seq. Docket No. 147255 concerns the WPA and ILSA claims, and Docket No. 159839 involves the MEPA claim. Plaintiff voluntarily dismissed the other counts of the complaint. We affirm.

I. UNDERLYING FACTS AND PROCEDURAL HISTORY

The Philp Drain, a six- or seven-mile stretch of Willow Creek in Huron County, was designated as a drain in 1896. The drain had not been improved since its establishment, except by private individuals. The drain serves 21,000 acres, ninety percent of which is agricultural. It is also an outlet for eleven other established drains in Huron County. The Michigan Department of Natural Resources (DNR) owns about 3,000 acres in this district, two-thirds of which is rented to farmers.

In 1988, local farmers petitioned to improve the Philp Drain. The drain was choked with weeds, stagnant, full of silt, and dirty. The fish were dying. One farmer described the Philp running through his land as a "5,000 gallon cesspool." The farmers principally were concerned with the flooding of the Rapson area, an agricultural area on the banks of Willow Creek, but downstream from the Philp Drain. The Rapson flooding was blamed on the Philp's slow drainage rate and its lack of an adequate outlet. Another concern was flooding in areas serviced by other county drains that emptied into the Philp. These drains were inoperable because the Philp was in such poor condition and draining so slowly that the outlets of the other drains were "lower" than the Philp. Thus, they could not empty into the Philp. Moreover, the farmers noted that the flooding not only damaged crops, it was also dangerous. The flooding backed up the farmers' drain tiles, causing underground drainpipes to blowout under pressure and gouge treacherous two-foot-deep holes in the farmland.

Upon the filing of this petition, a board of determination was convened in February 1989 to determine the necessity of the proposed project. Notice of this meeting was sent to every landowner within the drainage district, including the DNR. At the hearing, the board determined that the proposed improvement was necessary and conducive to the public health, convenience, and welfare. Two landowners challenged this determination in the circuit court and lost. The DNR did not join this challenge or file its own challenge. The board was reconvened a month later to add new lands to the drainage district. Again, all landowners, including the DNR, were notified of this meeting.

On the basis of the board's determination, defendant Vernon Rounds, the Huron County Drain Commissioner, proposed to extend the Philp Drain downstream, and to add a 1200-foot enclosed branch near Rapson to alleviate flooding in that area. The project entailed dredging and deepening the drain. The finished drain would span thirteen miles.

Rounds and other representatives of the drain commission met with DNR and United States Fish and Wildlife Service representatives on several occasions. The first of these meetings occurred in September 1989. There was conflicting testimony regarding whether Rounds was told that the county would have to apply for permits under the WPA or the ILSA. County representatives recalled that the DNR assured them that a wetlands permit would not be needed for this project. However, the DNR representatives recalled that they informed the drain commission that a wetlands permit would be needed. In any event, Rounds never applied for or received a permit from the DNR for the project.

In 1991, before the project commenced, the board held two other meetings and also arranged the sale of $1.5 million in bonds to finance the project. The DNR, as a landowner in the district, was notified of these events. After the funds were raised, final notice was sent in June 1991 to all landowners, including the DNR, before work on the drain began.

Plaintiff filed a complaint for injunctive and declaratory relief on July 12, 1991, ten days before construction on the project was to begin. The complaint alleged in part that the proposed drain violated the WPA, the ILSA, and the MEPA. The court conducted an evidentiary hearing on July 16, 1991, on plaintiff's motion for a preliminary injunction. It conditionally granted plaintiff's motion, provided that plaintiff posted sufficient security to pay costs incurred by defendants as a result of plaintiff's undue delay in seeking the injunction. Plaintiff, however, did not post the security. Consequently, the court entered an order denying plaintiff's motion. Plaintiff's application for leave to appeal to this Court was denied.

Plaintiff subsequently moved for summary disposition of counts I (WPA) and II (ILSA) of the complaint. The trial court conducted a lengthy evidentiary hearing. The court held that defendants' activities fell under exceptions to the permit requirements of both the WPA and the ILSA. The court therefore ordered summary disposition in favor of defendants of counts I and II of plaintiff's complaint.

Plaintiff then moved for summary disposition of the MEPA claim. Another evidentiary hearing was held, after which the court ruled that plaintiff failed to establish a prima facie case under the MEPA. Accordingly, it granted summary disposition for defendants of this count. By this time, the drain project had been completed.

Although the trial court technically heard these issues on plaintiff's motions for summary disposition, it also held extensive evidentiary hearings and made detailed findings of fact. Accordingly, we consider the disposition below as though a bench trial had been conducted. The trial court's factual findings will be reviewed for clear error, Arco Industries Corp. v. American Motorists Ins. Co., 448 Mich. 395, 410, 531 N.W.2d 168 (1995), and its legal rulings will be reviewed de novo. Madison v. Detroit, 08 Mich.App. 356, 358, 527 N.W.2d 71 (1995). Since plaintiff has no right to a jury trial on equitable actions for injunctive relief, Ins. Comm'r. v. Accident Fund, 173 Mich.App. 566, 586, 434 N.W.2d 433 (1988), and a court sitting in equity has broad powers, Rasheed v. Chrysler Corp, 445 Mich. 109, 133-134, 517 N.W.2d 19 (1994), we find that plaintiff suffered no prejudice in the trial court's treatment of this matter. Any error that may have occurred was harmless.

II. WETLAND PROTECTION ACT

The primary purpose of the WPA is to ensure that wetland habitats are preserved and protected. Harkins v. Dep't. of Natural Resources, 206 Mich.App. 317, 321, 520 N.W.2d 653 (1994). The act requires that the DNR issue a permit before a landowner uses land in a manner that affects a wetland as defined under the act. Id. Exemptions from the permit requirement are provided in § 6 of the act. The exemption at issue in this case requires no permit for:

(h) Maintenance, operation or improvement which includes straightening, widening, or deepening of the following which is necessary for the production or harvesting of agricultural products:

* * * * * *

(ii) That portion of a drain legally established pursuant to the drain code of 1956 ... which has been constructed or improved for drainage purposes. [MCL 281.706(2)(h)(ii); MSA 18.595(56)(2)(h)(ii). Emphasis added.

The trial court never definitively ruled that wetlands existed in the area of the Philp Drain, although the parties sharply disputed this issue during the evidentiary hearing. Rather, the trial court assumed that wetlands were present, but found the drain project was exempted from the permit requirement under the noted exception. It noted that the Philp Drain served two functions: it served as a drain for the surrounding farmland and as an outlet for other county drains that emptied into it. The court found that both sides' testimony established that the drain was not currently fulfilling these functions. It also determined from the testimony that the project was necessary to alleviate flooding in the area. Thus, it held that the project, including dredging Willow Creek both within the established Philp Drain and downstream from the established drain, as well as constructing the 1,200-foot extension branch, constituted maintenance and improvement of an existing drain. Therefore, the project fell within the exception to the WPA's permit requirement. Plaintiff argues on appeal that the lower court misinterpreted the exception, particularly the words "maintenance, operation or improvement."

A fundamental rule of statutory construction is that the Legislature is...