Huggett v. Department of Natural Resources

Decision Date17 July 2001
Docket NumberDocket No. 113463, Calendar No. 3.
Citation464 Mich. 711,629 N.W.2d 915
PartiesWallace A. HUGGETT and Huggett Sod Farm, d/b/a Michigan Cranberry Company, Plaintiffs-Appellants, v. DEPARTMENT OF NATURAL RESOURCES, Defendant-Appellee.
CourtMichigan Supreme Court

D. Haywood & Associates, P.C., (by David J. Haywood and Mark A. Cooley), Lansing, for the plaintiffs-appellants.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, A. Michael Leffler, Assistant in Charge, and Stephen F. Schuesler and S. Peter Manning, Assistant Attorneys General, Lansing, for the defendant-appellee.

MICHAEL F. CAVANAGH, J.

This case requires us to decide whether plaintiffs' proposed activities to build and operate a commercial cranberry farm in a wetland is exempt from the statutory wetland permit requirements, M.C.L. § 324.30304, because it is a farming activity that is not subject to the permit requirements under the farming activities exemption provided by M.C.L. § 324.30305(2)(e). We conclude that the farming activities exemption is not so broad that it encompasses plaintiffs' proposal. Also, the proposed cranberry farm does not fall within the production and harvesting draining exemption to the wetland permit requirements, M.C.L. § 324.30305(2)(j), or the existing farming exemption to the requirements, M.C.L. § 324.30305(3), that we ordered the parties to address. Therefore, plaintiffs must obtain a wetland permit to proceed with the proposed cranberry farm. Accordingly, we affirm the judgment of the Court of Appeals.

I

The facts of this case surround plaintiffs Wallace Huggett and Huggett Sod Farm's proposal to build a commercial cranberry farm on land in Cheboygan County. Plaintiff Huggett acquired the 325-acre parcel, all but forty-seven acres of which is wetland, after a mortgage on the property was assigned to him and he foreclosed the mortgage. Before plaintiff acquired the parcel, which abuts Lake 16, the parcel had been the site of a peat farm. After acquiring title, plaintiffs proposed to build a 200-acre commercial cranberry farm on the land. To create beds in which cranberries could grow, the proposed farm entailed placing fill material in wetland areas, excavating and removing soil from wetland areas, building dikes and culverts; digging irrigation ditches; and constructing a reservoir and pumping station, roads, and an airstrip.

In 1990, plaintiff Huggett contacted defendant Department of Natural Resources to determine whether he needed a wetland permit to proceed with the proposed cranberry farm. Defendant advised him that he did, and plaintiffs applied for a permit later that year. However, defendant denied the application. Plaintiffs then requested a contested case hearing under the Administrative Procedures Act, M.C.L. § 24.201 et seq., see M.C.L. § 324.30319(2) (allowing requests for hearings under the Administrative Procedures Act), and although the case was docketed for a hearing, no such hearing occurred after over a year. Plaintiffs thus filed this action seeking a declaration that their proposed cranberry farm is not subject to the wetland permit requirements because it is a farming activity exempted from the requirements by M.C.L. § 324.30305(2)(e). All administrative proceedings have been abeyed for this litigation.

After several hearings, and after addressing matters no longer pertinent to this case, the trial court granted plaintiffs the declaration they sought. The trial court's final judgment and order held that plaintiffs' proposed cranberry farm is a farming activity exempt from the wetland permit requirements. That order stated that the farming activities exemption "includes all activities necessary to commence and to continue farming in a commercially viable manner and to bring land into agricultural production."

Defendant appealed. The Court of Appeals reversed on the exemption issue, reasoning that "the farming exemption was intended to apply to land in established use for agriculture, and was not intended to refer to new farming activities...." 232 Mich.App. 188, 195, 590 N.W.2d 747 (1998). Because plaintiffs wanted to establish a new farm rather than continue an existing farm, the Court of Appeals concluded that plaintiffs must obtain a wetland permit. Plaintiffs appealed that conclusion, and this Court granted leave, limited to whether the Court of Appeals correctly interpreted the farming activities exemption. Also, we ordered the parties to address the applicability of M.C.L. § 324.30305(2)(j) and (3), which concern draining wetland that is contiguous to a lake or stream and farming that has been in existence since 1980, respectively. 463 Mich. 911, 620 N.W.2d 305 (2000). We now affirm.

II

Part 303 of the Natural Resources and Environmental Protection Act governs activities in wetlands.1 See M.C.L. § 324.30301 et seq. Most importantly, M.C.L. § 324.30304 prohibits certain acts in wetlands:

Except as otherwise provided by this part or by a permit obtained from the department [of Natural Resources] under [other sections of NREPA part 303], 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.

However, part 303 also provides that certain activities are not subject to § 30304's prohibitions. Section 30305 sets forth permissible uses of a wetland, and states in pertinent part:

(2) The following uses are allowed in a wetland without a permit subject to other laws of this state and the owner's regulation:

* * *

(e) Farming, horticulture, silviculture, lumbering, and ranching activities, including plowing, irrigation, irrigation ditching, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices. Wetland altered under this subdivision shall not be used for a purpose other than a purpose described in this subsection without a permit from the department.

(f) Maintenance or operation of serviceable structures in existence on October 1, 1980 or constructed pursuant to this part of former Act No. 203 of the Public Acts of 1979.

(g) Construction or maintenance of farm or stock ponds.

(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:

(i) An existing private agricultural drain.

(ii) That portion of a drain legally established ... which has been constructed or improved for drainage purposes.
(iii) A drain constructed pursuant to other provisions of this part ...
(i) Construction or maintenance of farm roads, ... if the roads are constructed and maintained in a manner to assure that any adverse affect on the wetland will be otherwise minimized.
(j) Drainage necessary for the production and harvesting of agricultural products if the wetland is owned by a person who is engaged in commercial farming and the land is to be used for the production and harvesting of agricultural products. Except as otherwise provided in this part, wetland improved under this subdivision after October 1, 1980 shall not be used for nonfarming purposes without a permit from the [DNR]. This subdivision shall not apply to a wetland which is contiguous to a lake or stream, or to a tributary of a lake or stream, or to a wet land that the department has determined by clear and convincing evidence to be a wetland that is necessary to be preserved for the public interest, in which case a permit is required.

* * *

(n) Operation or maintenance, including reconstruction of recently damaged parts, of serviceable dikes and levees in existence on October 1, 1980 or constructed pursuant to this part or former Act No. 203 of the Public Acts of 1979.

* * *

(3) An activity in a wetland that was effectively drained for farming before October 1, 1980 and that on and after October 1, 1980 has continued to be effectively drained as part of an ongoing farming operation is not subject to regulation under this part.

To determine whether the activities necessary to establish and operate plaintiffs' proposed cranberry farm are permissible uses exempted from the wetland permit requirements, we must construe both the prohibitions and exemptions in part 303 to make both viable. When construing statutes, our primary task is to discern and give effect to the Legislature's intent. We begin by examining the statutory language, which provides the most reliable evidence of that intent. If the statutory language is clear and unambiguous, then we conclude that the Legislature intended the meaning it clearly and unambiguously expressed, and the statute is enforced as written. No further judicial construction is necessary or permitted. See In re MCI, 460 Mich. 396, 411, 596 N.W.2d 164 (1999). Statutory construction presents questions of law, which are reviewed de novo. Id. at 413, 596 N.W.2d 164.

A. THE FARMING ACTIVITIES EXEMPTION

Plaintiffs contend that the activities necessary to establish and operate their proposed cranberry farm are not subject to the wetland permit requirements under § 30305(2)(e)'s farming activities exemption. That section exempts farming activities, and provides a list of several types of farming activities that begins with the term "including." Plaintiffs argue that by beginning the list with "including," the Legislature intended that the listed activities would serve only as examples of the types of exempted farming activities. The farming activities exemption, plaintiffs reason, "includes all of the activities necessary for farming." Plaintiffs thus conclude that they can engage in all the activities necessary to establish and operate their cranberry farm without a wetland permit. We disag...

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