Dep't of Envtl. Quality v. Sancrant

• Decision Date: 24 June 2021
• Docket Number: 351904
• Citation: 337 Mich.App. 696,976 N.W.2d 874
• Parties: DEPARTMENT OF ENVIRONMENTAL QUALITY, Plaintiff-Appellee, v. Gary SANCRANT and Tonya Sancrant, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

337 Mich.App. 696

976 N.W.2d 874

DEPARTMENT OF ENVIRONMENTAL QUALITY, Plaintiff-Appellee,

v.Gary SANCRANT and Tonya Sancrant, Defendants-Appellants.

No. 351904

Court of Appeals of Michigan.

Submitted June 8, 2021, at Lansing.

Decided June 24, 2021, at 9:10 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Elizabeth Morrisseau, Assistant Attorney General, for the Department of Environmental Quality.

Fraser Trebilcock Davis & Dunlap, PC, Lansing (by Michael H. Perry ) for Gary and Tonya Sancrant.

Before: Jansen, P.J., and M. J. Kelly and Ronayne Krause, JJ.

Jansen, P.J.

In this case involving the Natural Resources and Environmental Protection Act (the NREPA), MCL 324.101 et seq. , defendants, Gary Sancrant (Gary) and Tonya Sancrant (Tonya), appeal as of right a judgment for plaintiff, the Department of Environmental Quality,¹ entered following a bench trial. We affirm.

I. BACKGROUND

Defendants, a married couple, live and work in West Branch but own property, including a hunting cabin, in Schoolcraft County in the Upper Peninsula. A road—often referred to in the record as the "easement road"—exists on defendants’ property; it allows defendants and their neighbors to reach their respective cabins. It is undisputed that defendants had many problems with their neighbors and did not like that the easement road passes very close to defendants’ cabin.

The central issue in this case is that Gary installed a new road, and in doing so, he dredged from a wetland and placed fill in a wetland, contrary to Part 303 of the NREPA—specifically, MCL 324.30304. Plaintiff theorized that Gary installed the new road solely because of the neighbor issues,² although Gary claimed that he also needed the new road because the easement road was being repeatedly flooded by beavers. Gary pleaded guilty to a misdemeanor for violating the statute, but the plea agreement did not require restoration of the wetland. Plaintiff commenced this action and obtained an order of restoration and a fine. Defendants contend on appeal that, in light of Gary's criminal matter, the restoration order was barred by principles of double jeopardy, collateral estoppel, and res judicata. They also contend that the trial court erred by finding Tonya liable after the bench trial because she was not involved in building the road and did not "permit" Gary to build it under the language of MCL 324.30304(a) and (b).

II. DOUBLE JEOPARDY

First, defendants argue that plaintiff's lawsuit and the wetland-restoration order violated Gary's double-jeopardy protections. We review this constitutional issue de novo. People v. Miller , 498 Mich. 13, 16-17, 869 N.W.2d 204 (2015).

MCL 324.30304 states:

Except as otherwise provided in this part or by a permit issued by the department under this part and pursuant to part 13, 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.^[3]

MCL 324.30316 states, in part:

(1) The attorney general may commence a civil action for appropriate relief, including injunctive relief upon request of the department under section 30315(1). An action under this subsection may be brought in the circuit court for the county of Ingham or for a county in which the defendant is located, resides, or is doing business. The court has jurisdiction to restrain the violation and to require compliance with this part. In addition to any other relief granted under this section, the court may impose a civil fine of not more than $10,000.00 per day of violation. A person who violates an order of the court is subject to a civil fine not to exceed $10,000.00 for each day of violation.

(2) A person who violates this part is guilty of a misdemeanor punishable by a fine of not more than $2,500.00.

* * *

(4) In addition to the civil fines and 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.^[4]

Gary pleaded guilty to a misdemeanor violation of MCL 324.30304 on the basis of the building of the road in the wetland. The Schoolcraft County Prosecutor stated that he was only seeking a suspended sentence and fine and was not seeking restoration. The prosecutor said that the building of the road

shouldn't have been done [the] way it was, but I understand why it was done.... If the [Department of Environmental Quality], who I've spoken with, wishes to get restoration ..., they have options through the Attorney General's office, through the Court of Civil Claims, and stuff in Lansing, and or [sic] the option of filing here. But that's up to them. But from my perspective, I don't think that's the appropriate direction to proceed on this case....

The district court imposed a three-month suspended sentence⁵ and ordered Gary to pay $1,000, as well as a "state fee" of $125 and a probation oversight fee.

Defendants contend that, in light of these criminal proceedings, a double-jeopardy violation occurred. The United States Constitution and the Michigan Constitution protect a person from being twice placed in jeopardy for the same offense. U.S. Const., Am. V ; Const. 1963, art. 1, § 15. Interpretations of the federal double-jeopardy clause also apply to the state double-jeopardy clause. See Miller , 498 Mich. at 17 n. 9, 869 N.W.2d 204. "The prohibition against double jeopardy provides three related protections: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense." People v. Nutt , 469 Mich. 565, 574, 594, 677 N.W.2d 1 (2004).

Defendants contend that the restoration order violated the protection against multiple punishments for the same offense.⁶ Double-jeopardy protections only apply to multiple criminal punishments. Hudson v. United States , 522 U.S. 93, 99, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997). This Court has stated that "the constitutional provision against double jeopardy is not violated when a civil penalty serves a purpose distinct from any punitive purpose." People v. Artman , 218 Mich. App. 236, 246, 553 N.W.2d 673 (1996). One consideration is whether the Legislature has designated a particular penalty as civil or criminal. See generally Dawson v. Secretary of State , 274 Mich. App. 723, 733, 739 N.W.2d 339 (2007). Defendants contend that MCL 324.30316 facially designates a restoration order as a criminal punishment. This is not the case, however. The statute provides for both civil actions, in Subsection (1), and criminal actions, in Subsection (2), and then, in Subsection (4), it indicates that "the court"—i.e., the civil or criminal court—can issue an order of restoration. MCL 324.30316.

Accordingly, an order to restore can be issued in either a criminal or a civil proceeding, and here, it was issued in a civil proceeding. In addition, an order to restore a wetland has been historically viewed as an equitable remedy. See Dep't of Environmental Quality v. Gomez , 318 Mich. App. 1, 32, 896 N.W.2d 39 (2016). Black's Law Dictionary (11th ed.) defines "equitable," in part, as "[e]xisting in equity; available or sustainable by an action in equity, or under the rules and principles of equity." It defines "equity," in part, as "[t]he body of principles constituting what is fair and right; natural law[.]" Black's Law Dictionary (11th ed.). It seems clear that the purpose of an order to restore issued in a civil proceeding is not punitive in nature but is related to ecological concerns and restoring the environment to what is "fair and right."

In Hudson , 522 U.S. at 99-100, 118 S.Ct. 488, the United States Supreme Court set forth the following factors to analyze when determining whether a remedy in a civil case should be considered a punishment for double-jeopardy purposes:

(1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment—retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned. [Citation, quotation marks, and brackets omitted.]

As for Factor (1), the restoration order did not involve a "disability" or "restraint" approaching something like imprisonment. See id. at 104, 118 S. Ct. 488. It involved an affirmative action, but the action was merely to restore the wetland to its original state. Regarding Factor (2), there is no indication that a restoration order has historically been regarded as a punishment; instead, it has been viewed, as noted, as an equitable remedy. Gomez , 318 Mich. App. at 32, 896 N.W.2d 39. Regarding Factor (3), a restoration order does not come into play only on a finding of scienter. As for Factor (4), while a restoration order could promote the traditional "punishment" goal of deterrence, deterrence can promote both criminal and civil purposes. Hudson , 522 U.S. at 105, 118 S.Ct. 488. In Hudson , the Court stated that the sanctions at issue in that case (a banking case) served to promote the stability of the banking industry; it added, "To hold that the mere presence of a deterrent purpose renders such sanctions ‘criminal’ for double jeopardy purposes would severely...