e-Journal Summary

e-Journal Number : 61903
Opinion Date : 02/10/2016
e-Journal Date : 02/11/2016
Court : Michigan Court of Appeals
Case Name : Department of Envtl. Quality v. Morley
Practice Area(s) : Environmental Law, Litigation
Judge(s) : Per Curiam – Saad, Stephens, and O’Brien
Full Text Opinion

The Natural Resources & Environmental Protection Act (MCL 324.30301 et seq.) (Part 303); Plaintiff-Department of Environmental Quality’s (DEQ) motion to strike the defendant’s jury demand; Const. 1963, art. 1, § 14; State Conservation Dep’t v. Brown; MCL 324.30306; MCL 324.30316(1)-(4); Claim that federal law governs whether a defendant is entitled to a jury trial (rather than state law); U.S. Const. amend. VII & amend. XIV; McDonald v. City of Chicago; Hardware Dealers’ Mut. Fire Ins. Co. of WI v. Glidden Co.; McKinstry v. Valley Obstetrics-Gynecology Clinic, P.C.; Tull v. United States; Claim that DEQ witnesses were erroneously allowed to establish wetland jurisdiction (MCL 324.30301(m)) without a proper foundation; MRE 702; Gilbert v. DaimlerChrysler Corp.; Claim that the trial court ignored the portion of the definition of wetland that a wetland “is commonly referred to as a bog, swamp, or marsh”; Claim that certain exhibits were admitted without proper foundation; “Hearsay”; MRE 801(c); McCallum v. Department of Corrs.; Claim that the trial court’s order requiring defendant to cease all actions on the wetland constituted a judicial taking; U.S. Const. amend. V; Const. 1963, art. 10, § 2; Bevan v. Brandon Twp.; K & K Constr., Inc. v. Department of Envtl. Quality; Bond v. Department of Natural Res.; Schmude Oil, Inc. v. Department of Envtl. Quality; Claim that the DEQ improperly relied on the existence of an agricultural drain to determine that defendant’s property is a regulated wetland; Forfeited issue; Stein v. Braun Eng’g; In re Ruddell Estate


[This opinion was previously released as an unpublished opinion on 12/15/15.] The court affirmed the final order of the trial court granting judgment in favor of the plaintiff-DEQ. The DEQ filed a complaint against defendant seeking an injunction and civil fines for his “dredging, filling and draining of and maintaining a use on property alleged to be a wetland,” contrary to Part 303 that was in effect in 2009. After a bench trial, the trial court entered judgment for the DEQ, ruling “that 92.3 acres of defendant’s 106.5-acre property was wetland” and that he “violated Part 303 by dredging, filling, draining, and maintaining a use on 4.1 acres of the wetland, and ordering him to remove 4.1 acres of fill material, restore that acreage to its prior condition, cease all Part 303 violations, including farming on all acreage designated as wetland, and pay the DEQ a statutory fine of $30,000.” He argued on appeal that the trial court erred by granting the DEQ’s motion to strike his demand for a jury trial. “MCL 324.30306 prohibits a person from depositing fill, dredging soils from, maintaining any use or development on, or draining surface water from a wetland unless the DEQ issues a permit to do so. Under MCL 324.30316(1) and (4), a trial court may restrain a violation of MCL 324.30306, impose a civil fine, and order restoration of the affected wetland. Part 303 was enacted after ratification of the 1908 and 1963 Michigan Constitutions and there is no evidence that a cause of action based on Part 303 was known to Michigan’s legal system when the Constitution was adopted. Because wetland protection is not a cause of action known to the common law, but is instead a new cause of action created by statute, there is no constitutional right to a jury trial,” even though “the statute also provides for monetary damages[.]” Defendant argued that because the “DEQ’s claims against him would also be a misdemeanor crime subject to a fine if the state proved intent, the state was required to prove to a jury” that he “purposefully or voluntarily deposited or permitted the placement of fill material in a known regulated wetland. In addition to providing for a civil lawsuit, Part 303 also provides that a person who violates MCL 324.30306 is guilty of a misdemeanor and subject to a fine.” However, in this case the DEQ “only filed a civil action against defendant; it did not seek to criminally prosecute him.” Thus, it was irrelevant that the statute provides for criminal liability.

Full Text Opinion