Dep't of Env't v. Brotherton
| Decision Date | 12 January 2023 |
| Docket Number | 359401 |
| Parties | DEPARTMENT OF ENVIRONMENT, GREAT LAKES, AND ENERGY, Plaintiff-Appellant, v. ROBERT L. BROTHERTON, Defendant-Appellee, and PETER COROGIN and DANA COROGIN, Defendants. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Mackinac Circuit Court LC No. 2017-008039-CE
Before: SHAPIRO, P.J., and BORRELLO and YATES, JJ.
In this environmental dispute involving the alleged placing of fill material and improper construction of a logging road in wetlands, plaintiff Department of Environment, Great Lakes and Energy[1] appeals as of right the trial court's judgment, following a bench trial, finding that one of the two sites involved was not a wetland and that the logging road constructed by defendant Robert Brotherton in the other site was exempt from the wetland permit requirement because it was a forest road that had minimal adverse impacts on the wetland. In challenging the trial court's decision plaintiff also argues that the trial court erred in denying its earlier motion for partial summary disposition. For the reasons set forth in this opinion, we reverse the trial court's summary disposition ruling only with respect to the pole barn site, remand the matter for an entry of an order granting summary disposition in plaintiff's favor only with respect to Brotherton's violation of MCL 324.30304 by his activities on the pole barn site, and affirm the trial court's ruling following the bench trial with respect to the logging road.
This case arises from a dispute over whether Brotherton constructed a road in a wetland and placed additional fill material to build a pole barn and related improvements in a wetland without obtaining the necessary permits from plaintiff pursuant to Part 303 of the Natural Resources and Environmental Protection Act (NREPA), MCL 324.30301 et seq., involving the protection of wetlands.
Kristina Wilson, who was employed by plaintiff, was the first person to observe the alleged unauthorized activity on Brotherton's property in June 2014. According to Wilson, she was responding to an unrelated complaint in the area when she saw a "new road" that had been constructed near the shoreline of South Manistique Lake in what Wilson referred to as "regulated wetland." Wilson took photographs that were admitted into evidence at trial. Wilson's first picture showed the "new fill placement" for the road, located within 500 feet of South Manistique Lake. Wilson did not observe a permit posted on the site that would have indicated that the activities had been authorized by plaintiff. Wilson posted a Notice of Violation on a tree on the property indicating that the observed activities violated Part 303 of the NREPA. Because Wilson's coworker, Ryan McCone, was responsible for the area where the property was located, Wilson put McCone's contact information on the Notice of Violation.
McCone, who was employed by plaintiff as a quality analyst at the time, was contacted by Brotherton as a result of the posted Notice of Violation. McCone met with Brotherton on the subject property on August 1, 2014. Brotherton indicated that he had constructed the road to harvest a stand of cedar trees at the west end of the new logging road. Based on this visit to the property, McCone completed a standard Wetland Determination Data Form. McCone explained, "This is a form where information collected at a sample point in the field is recorded for use in determining whether this site that -- that's the sampled site that's representative of the area is wetland or not." McCone determined that the area surrounding the new logging road was a wetland because all three necessary components of a wetland-hydric soil, wetland hydrology, and hydrophytic vegetation-were present.
McCone further concluded that Brotherton had constructed the new logging road[2] without minimizing its impact on the wetland area. McCone noted that the new fill for the road had "buried the wetland" and that he found a non-native, invasive species of upland plant growing in the fill. He also stated that the road was approximately 200 feet from the lake, was wider than necessary based on his observation of the width of the tracks from the equipment driving on the road, that the fill was too deep, and that the new road had been built parallel to a pre-existing "two track" road that had previously been created for logging. Additionally, McCone expressed concern that the culverts under the road were not properly embedded in the soil and that plastic culverts were used rather than steel culverts. Culverts serve to allow an unimpeded path for surface water that would normally drain across a wetland area to continue to flow through the fill used to create the road. Functional culverts prevent the road from acting as a dam. McCone was concerned that the weight of the fill used for the road, along with heavy equipment driving on the road, would crush the plastic culverts and prevent them from functioning properly.
At some point in late 2014 or early 2015, Wilson viewed an aerial image of the area surrounding the road that showed that fill had also been placed in an area south of the new logging road. Wilson stated that she was not aware of this additional area of fill before she viewed this areal image. On April 29, 2015, Wilson conducted an onsite investigation of the newly discovered additional fill area, which contained a pole barn, septic field, and driveway.[3] She estimated that the driveway was approximately 240 to 270 feet long. Based on her investigation, Wilson determined the site was situated in a wetland.
The pole barn was on property owned by defendants Peter and Dana Corogin, and the driveway ran from Brotherton's property to the pole barn. According to Peter's affidavit, he had purchased this property from Brotherton on August 14, 2014, after Brotherton "cleared the land, placed the fill for the pole barn, the septic field, and the lay-down area around the future site of the pole barn." Peter averred, "Other than negotiating the purchase price for the property and the price of Mr. Brotherton's performing the pre-purchase activities, I did not have any involvement with any activity on the property prior to August 14, 2014." After closing on the property, Peter hired other contractors to construct the pole barn. Peter stated that these contractors obtained any necessary permits. Peter averred that Brotherton never informed him that "the site of the pole barn or any other portion of the purchased property was a regulated wetland." Peter further averred that he did not know that his property was regulated wetland until he received the July 6, 2015 notice of violation from plaintiff and that "[t]hroughout the process of planning and constructing the pole barn neither I nor the contractors I hired understood that a Wetland Permit was necessary."
In 2017, plaintiff initiated this civil action against Brotherton and the Corogins in the Ingham Circuit Court. Plaintiff sought injunctive relief and civil fines for the filling of a wetland and for maintaining a use in a wetland without a permit in violation of Part 303 of the NREPA. The complaint alleged that Brotherton had not complied with a March 11, 2015 Order to Restore issued by plaintiff that required Brotherton to remove the unauthorized fill material and restore the wetland to its original grade with respect to the logging road that had been built without first obtaining a Part 303 permit from plaintiff. The complaint alleged that Brotherton placed fill material on his property to create the driveway leading to the Corogins' pole barn. Additionally, the complaint alleged the Brotherton was the contractor responsible for placing the fill material on the Corogins' property related to the pole barn, septic system, and driveway. Brotherton also allegedly installed the septic system and a well on the Corogins' property. The complaint further alleged that Brotherton and the Corogins had failed to comply with August 25, 2016 orders to restore the wetland relative to the pole barn, septic system, and driveway area.
Brotherton's subsequent motion to change venue to Mackinac County, where the subject property is located, was granted. The Corogins reached a settlement agreement with plaintiff, and the matter was dismissed with prejudice as to the Corogins.[4] The case remained pending with respect to Brotherton. Based on the settlement with the Corogins, plaintiff was not seeking removal of the pole barn, septic system, or driveway leading to the pole barn. With respect to the pole barn site,[5] plaintiff was seeking to hold Brotherton liable for a fine regarding those activities.
The matter eventually proceeded to trial. At the beginning of trial, the court ruled that it would rely on the version of Part 303 of the NREPA as it existed in 2014 at the time of the underlying events and not as subsequently amended.[6]
Plaintiff called McCone to testify as an expert in the field of wetland science and the administration and application of Part 303. McCone testified that during his August 1, 2014 visit to the property, he walked the length of the approximately 1,420-foot long road and observed the vegetation. McCone determined that the predominate vegetation consisted of species that tended to grow in wet conditions such as yellow birch, red maple, quaking aspen, a type of bulrush that was very indicative of wetland conditions, a wetland species of fern, and cattail. McCone stated that he found "muck soils, which are an organic hydric soil common in wetlands," at several places "across this site." He could identify this soil by its dark color the presence of algae, and "cracking" in the soil. McCone testified that he determined there was wetland hydrology because he found...
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