Dep't of Envtl. Quality v. Gomez, Docket No. 328033.

• Decision Date: 17 November 2016
• Docket Number: Docket No. 328033.
• Citation: 896 N.W.2d 39,318 Mich.App. 1
• Parties: DEPARTMENT OF ENVIRONMENTAL QUALITY v. GOMEZ.
• Court: Court of Appeal of Michigan — District of US

318 Mich.App. 1

896 N.W.2d 39

DEPARTMENT OF ENVIRONMENTAL QUALITY

v.GOMEZ.

Docket No. 328033.

Court of Appeals of Michigan.

Submitted Oct. 5, 2016, at Lansing.

Decided Nov. 17, 2016, at 9:00 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Matthew Schneider, Chief Legal Counsel, and Kelly M. Drake, Assistant Attorney General, for plaintiff.

Conlin, McKenney & Philbrick, PC, Ann Arbor (by Douglas G. McClure ), for defendants.

Before: RIORDAN, P.J., and METER and OWENS, JJ.

PER CURIAM.

Defendants, Hernan F. Gomez and Bethany M. Gomez, appeal as of right the trial court's judgment—following a grant of summary disposition in favor of plaintiff, the Department of Environmental Quality, on the issue of liability and a bench trial on remedies—ordering defendants to remove the 1.2 acres of fill material they had placed in a wetland on their property, to restore the area to its previous condition, and to pay a $10,000 civil fine. For the reasons stated in this opinion we affirm.

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 on the property 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. When they arrived 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, informing defendants that an inspection of their property revealed that "fill material had been placed within wetland regulated under the authority of Part 303 [MCL 324.30301 et seq. ]" of the Natural Resources and Environmental Protection Act (NREPA) [MCL 324.101 et seq. ], and that "it appears that this activity was conducted in violation of Part 303" because the filling was performed without a permit, contrary to MCL 324.30304.¹ Smith also told defendants that the WRD had "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 after 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, Asti Environmental, to assist them in the resolution of the alleged violation. In a February 11, 2011 letter, Dianne C. 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." She explained that because defendants intended to use the filled area for farming and ranching activities, they were not required to obtain a permit to fill the wetland under the corresponding exemption provided in Part 303 of the NREPA, MCL 324.30305(2)(e). Nonetheless, Martin indicated that defendants would be willing to enter into a conservation easement for approximately 18 acres of wetland on their property if plaintiff was amenable to such a resolution.

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 the "farming and ranching exemption" of Part 303, MCL 324.30305(2), 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 on the basis that 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 plaintiff's action was time-barred under the applicable statute of limitations, in that 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 applied, 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 Hernan's affidavit. Plaintiff disagreed, arguing that under Attorney General v. Harkins, 257 Mich.App. 564, 669 N.W.2d 296 (2003), the applicable period of limitations for equitable actions to enforce Part 303 is six years and that 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 statutory six-year period 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 that defendants admitted that they placed fill material in a wetland and that Huggett v. Dep't of Natural Resources, 464 Mich. 711, 629 N.W.2d 915 (2001), "clearly states that filling and dredging a wetland are prohibited activities that do not fit within the farming activities" exception. The court also found defendants' argument that they were cultivating the wetland unpersuasive because "in order to get any potential cultivating [they] had to fill and dredge and had to place materials in the site."

Subsequently, a two-day bench trial was held on the issue of remedies. After hearing testimony from Smith and Kolhoff, who were both qualified as expert witnesses, Martin, who also was qualified as an expert witness, and Hernan, the trial court ordered defendants to, "[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:

a. Remove all fill material from the restoration area described above;

b. 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;

c. 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;

d. Monitor the restoration area for five years after the date of completion; and

e. 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...