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STATE OF MICHIGAN 

COURT OF APPEALS 

DEPARTMENT OF ENVIRONMENTAL 

QUALITY, 

 Plaintiff-Appellee, 

FOR PUBLICATION 

November 17, 2016 

9:00 a.m. 

v No. 328033 

Ingham Circuit Court 

HERNAN F. GOMEZ and BETHANY M. 

GOMEZ, 

LC No. 13-001426-CE 

 Defendants-Appellants. 

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

PER CURIAM. 

 Defendants appeal as of right the trial court’s judgment—following a grant of summary 

disposition in favor of plaintiff on the issue of liability and a bench trial on remedies—ordering 

defendants to remove 1.2 acres of fill material that they 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 

below, 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 next to it which 

they decided 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. Upon arriving at the property, Smith observed “a cleared area with exposed” lightcolored 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 
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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, which informed defendants 

that an inspection of their property revealed that “fill material had been placed within wetland 

regulated under the authority of Part 303” of the Natural Resources and Environmental 

Protection Act (“NREPA”), and that “it appears that this activity was conducted in violation of 

Part 303” because the filling was performed without a permit. Smith also told defendants that 

the WRD “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 once 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 to assist them in the resolution of the 

alleged violation. In a February 11, 2011 letter, Dianne 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.” However, she 

explained that defendants intended to use the filled area for “farming and ranching activities” 

and, therefore, were not required to obtain a permit to fill the wetland under the corresponding 

exemption provided in Part 303 of the NREPA. 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 Part 303’s 

“farming and ranching exemption,” 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 because it determined there were factual issues relevant to whether 
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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 the DEQ’s action was time-barred under the applicable 

statute of limitations, as 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 applies, 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 defendant Hernan’s affidavit. 

Plaintiff DEQ disagreed, arguing that under Attorney General v Harkins, 257 Mich App 564; 669 

NW2d 296 (2003), the applicable statute of limitations for equitable actions to enforce Part 303 

is six years, and 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 six-year 

statute 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 Nat Res, 464 Mich 711; 629 NW2d 915 (2001), “clearly states that filling and dredging 

a wetland are prohibited activities that do not fit within the farming activities[.]” 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, both of whom were qualified as expert witnesses, Martin, 

who also was qualified as an expert witness, and defendant Hernan, the trial court ordered 

defendants to, inter alia, “[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 DEQapproved 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 
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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 trial court erroneously granted summary disposition in favor of 

plaintiff because their use of fill dirt to create a pasture was exempt as a farming or ranching 

activity from the wetland permitting requirements. We disagree. 

A. STANDARD OF REVIEW 

This Court reviews de novo a trial court’s grant or denial of summary disposition. 

Moraccini v Sterling Hts, 296 Mich App 387, 391; 822 NW2d 799 (2012). “A motion under 

MCR 2.116(C)(10) tests the factual sufficiency of the complaint.” Cannon Twp v Rockford Pub 

Sch, 311 Mich App 403, 411; 875 NW2d 242 (2015). When reviewing such a motion, this Court 

may only consider, in the light most favorable to the party opposing the motion, the evidence that 

was before the trial court, which consists of “the ‘affidavits, together with the pleadings, 

depositions, admissions, and documentary evidence then filed in the action or submitted by the 

parties.’ ” Calhoun Co v Blue Cross Blue Shield Michigan, 297 Mich App 1, 11; 824 NW2d 202 

(2012), quoting MCR 2.116(G)(5). Under MCR 2.116(C)(10), “[s]ummary disposition is 

appropriate if there is no genuine issue regarding any material fact and the moving party is 

entitled to judgment as a matter of law.” Latham v Barton Malow Co, 480 Mich 105, 111; 746 

NW2d 868 (2008). “There is a genuine issue of material fact when reasonable minds could 

differ on an issue after viewing the record in the light most favorable to the nonmoving party.” 

Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008). “This Court is 

liberal in finding genuine issues of material fact.” Jimkoski v Shupe, 282 Mich App 1, 5; 763 

NW2d 1 (2008). 

Questions of statutory interpretation are also reviewed de novo. Stanton v City of Battle 

Creek, 466 Mich 611, 614; 647 NW2d 508 (2002). 

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. [Huggett v 

Dep’t of Nat Res, 464 Mich 711, 717; 629 NW2d 915 (2001).] 

“Only when an ambiguity exists in the language of the statute is it proper for a court to go 

beyond the statutory text to ascertain legislative intent.” Whitman v City of Burton, 493 Mich 

303, 312; 831 NW2d 223 (2013). Additionally, “[w]hen construing a statute, a court must read it 

as a whole.” Klooster v City of Charlevoix, 488 Mich 289, 296; 795 NW2d 578 (2011). 
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B. ANALYSIS 

 The Natural Resources and Environmental Protection Act (“NREPA”), MCL 324.101 et 

seq., “is a comprehensive statutory scheme containing numerous parts, all intended to protect the 

environment and natural resources of this state.” People v Schumacher, 276 Mich App 165, 171; 

740 NW2d 534 (2007). Part 303 of the act, MCL 324.30301 et seq., “governs activities in 

wetlands.” Huggett, 464 Mich at 715.1 “At the federal level, the Clean Water Act (CWA) 

provides for the regulation and protection of wetlands, while Michigan’s wetland protection act 

. . . serves the same purpose for this state.” K & K Constr, Inc v Dep’t of Environmental Quality, 

267 Mich App 523, 530; 705 NW2d 365 (2005) (citation omitted). 

 MCL 324.30304 states: 

 Except as otherwise provided in this part or by a permit issued by the 

department[,2

] . . . 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. [MCL 324.30304(a)-(d).] 

“Fill material” is defined as “soil, rocks, sand, waste of any kind, or any other material that 

displaces soil or water or reduces water retention potential.” MCL 324.30301(1)(d). “However, 

part 303 also provides that certain activities are not subject to § 30304’s prohibitions.” Huggett, 

464 Mich at 715. In particular, MCL 324.30305(2) provides that, unless otherwise precluded by 

other state laws or “the owner’s regulation,” certain uses are allowed in a wetland without a 

permit. Defendants maintain that their filling of the wetland and subsequent growing of pasture 

grass are activities that fall under the exemption in MCL 324.30305(2)(e). During the time 

period relevant to this case,3

 MCL 324.30305(2)(e) provided that the following activities could 

 

1

 Part 303 is sometimes referred to as “the wetland protections act” or “the wetlands protection 

act.” See, e.g., People v Taylor, 495 Mich 923; 844 NW2d 707 (2014) (MARKMAN, J., 

concurring); K & K Constr, Inc v Dep’t of Environmental Quality, 267 Mich App 523, 530; 705 

NW2d 365 (2005); Huggett v Dep’t of Nat Res, 232 Mich App 188, 191; 590 NW2d 747 (1998), 

aff’d 464 Mich 711 (2001). See also Huggett, 464 Mich at 715 n 1. 

2

 The DEQ has “the authority, powers, duties, functions, and responsibilities under” the relevant 

provisions of the NREPA. Executive Order No. 2011-1. 

3

 The farming activities exemption was amended by 2013 PA 98, effective July 2, 2013, which 

added a subsection stating, in part, that “[b]eginning October 1, 2013, to be allowed in a wetland 

without a permit, these activities shall be part of an established ongoing farming[] [or] ranching . 

. . operation.” MCL 324.30305(2)(e)(i). 
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be conducted in a wetland without a permit: 

 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. [MCL 324.30305(2)(e), as 

amended by 1995 PA 59 (emphasis added).] 

In particular, defendants contend that their activities constituted “prepar[ation] and cultivat[ion 

of] the field for farming and ranching use,” so that their filling and cultivation of the wetland 

qualified under the exemption for farming- and ranching-related activities. 

 In Huggett, 464 Mich at 718-722, the Michigan Supreme Court interpreted the former 

version of the “farming activities exemption” at issue in this appeal. See id. at 718. Other than 

the opinion issued by this Court before the Supreme Court’s opinion in Huggett, see Huggett v 

Dep’t of Nat Res, 232 Mich App 188, 191; 590 NW2d 747 (1998), aff’d 464 Mich 711 (2001), 

we have found no other authority interpreting the “farming activities exemption.” While we 

recognize the factual distinctions between Huggett and the instant case, we believe that the 

reasoning utilized by the Huggett Court is directly applicable to the circumstances of this case. 

In Huggett, the plaintiffs sought to build a 200-acre cranberry farm on a 325-acre parcel 

of land, which included 278 acres of wetland. Id. at 713. In order to build the farm, the 

plaintiffs proposed “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.” Id. The plaintiffs maintained in the trial 

court and on appeal that their proposed activities qualified under the farming activities 

exemption and were not, therefore, “subject to the wetland permit requirements[.]” Id. at 713-

 While not directly relevant to the issues raised on appeal in this case, there appears to be 

some confusion regarding the effect of 2013 PA 98 that merits discussion. The “[e]nacting 

section 2” of 2013 PA 98 states as follows: 

Part 303 of the natural resources and environmental protection act, 1994 PA 451, 

MCL 324.30301 to 324.30327, is repealed effective 160 days after the effective 

date, as published in the federal register, of an order by the administrator of the 

United States environmental protection agency under 40 CFR 233.53(c)(8)(vi) 

withdrawing approval of the state program under 33 USC 1344(g) and (h). 

In Dep’t of Environmental Quality v Morley, 314 Mich App 306, 308 n 1; 885 NW2d 892 

(2015), this Court noted that “Part 303 was repealed by 98 PA 2013.” However, a close reading 

of the enacting section confirms that 2013 PA 98 did not repeal Part 303, but merely provided 

that the part will be repealed in the event that the EPA withdraws approval of Michigan’s 

program. Indeed, the Legislature amended various sections of Part 303 through 2013 PA 98 and 

expressly repealed MCL 324.30325. It would be nonsensical for the Legislature to make 

amendments to Part 303 and also repeal it in the same act. 
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714. The plaintiffs argued that the list of exempt farming activities under MCL 324.30305(2)(e) 

was not exhaustive, contending that “[t]he farming activities exemption . . . includes all of the 

activities necessary for farming.” Id. at 718 (quotation marks omitted). 

The Michigan Supreme Court, however, concluded that “[t]hese specific examples of 

farming activities [under MCL 324.30305(2)(e)] relate to the operation, improvement, 

expansion, and maintenance of a farm, or to the actual practice of farming.” Id. at 719. 

Accordingly, although activities not specifically listed in the statute may be covered by the 

farming activities exemption, “[u]nder the canon of ejusdem generis,[4] . . . the activities must be 

of the kind, class, character, or nature of operating a farm or practicing farming.” Id. at 719. 

Notably, in “constru[ing] both the prohibitions and exemptions in part 303 to make both viable,” 

Huggett, 464 Mich at 717, the Court recognized that “some of the activities allowed under § 

30305 overlap with the activities prohibited under § 30304,” Huggett, 464 Mich at 720. The 

Court cited, as an example, MCL 324.30304’s prohibition of draining and MCL 324.30305’s 

allowance of “minor drainage.” Huggett, 464 Mich at 720. “To make both sections viable,” the 

Court reasoned, “we must read the allowance for minor drainage only to allow drainage that fits 

within the definition of ‘minor drainage,’ or, in other words, only to allow drainage that is 

inconsequential.” Id. 

Ultimately, the Supreme Court found that “[t]he activities [the] plaintiffs seek to exempt . 

. . are not in the kind, class, character, or nature of operating a farm.” Id. More specifically, it 

later reiterated that the “[p]laintiffs’ proposed activities unquestionably amount to more than 

‘minor drainage’ and also entail filling and dredging in a wetland, which are prohibited 

activities. These activities, then, do not fit within the farming activities exemption to the wetland 

permit requirements.” Id. (emphasis added). Based on this reasoning, we conclude that 

defendants’ acts of filling the wetland in this case were prohibited acts that did not fall under the 

farming activities exemption. See id. 

However, we recognize that the specific question raised by defendants in this appeal 

differs, to a certain extent, from the question raised in Huggett. Here, defendants conceptualize 

the issue as whether the placement of fill material in a wetland in order to grow grass thereon 

constitutes “ ‘cultivating’ the land, as that term is used in Part 303,” or is at least “of ‘the same 

kind, character or nature’ as cultivating, as allowed by Huggett.” Stated differently, we 

understand defendants’ claim as arguing, in essence, that their placement of fill material 

constitutes “cultivating” under MCL 324.30305(2)(e) and is, therefore, a limited exception to the 

prohibition against filling in MCL 324.30304(a), similar to the way that “minor drainage” under 

MCL 324.30305(2)(e) is a limited exception to the prohibition against draining surface water 

from a wetland in MCL 324.30304(2)(d). We disagree that defendants’ act of adding fill 

material to the wetland constitutes “cultivating,” or something similar to cultivation, which is 

exempted from the permit requirements pursuant to MCL 324.30305(2)(e). 

 

4

 The canon of ejusdem generis restricts “the general term . . . to include only things of the same 

kind, class, character, or nature as those specifically enumerated.” Huggett, 464 Mich at 718-

719. 
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“Cultivating” is not defined for purposes of Part 303 or elsewhere in the NREPA. See 

MCL 324.30301. Accordingly, it is appropriate to consult a dictionary to determine its plain and 

ordinary meaning. Epps v 4 Quarters Restoration LLC, 498 Mich 518, 529; 872 NW2d 412 

(2015). Merriam-Webster’s Collegiate Dictionary (11th ed) defines “cultivate” as “to prepare or 

prepare and use for the raising of crops”, “to loosen or break up the soil about (growing plaints),” 

“to foster the growth of [vegetables],” and “to improve by labor, care, or study.” Based on these 

definitions, it appears that the plain and ordinary meaning of “cultivating” involves preparing, 

improving, or tilling soil already present in a given growing area, and all of these activities are of 

the “kind, class, character, or nature of operating a farm or practicing farming.” See Huggett, 

464 Mich at 719. Accordingly, we conclude that defendants’ extensive depositing of dirt in the 

area does not fulfill the plain and ordinary meaning of “cultivating,” as defendants’ actions were 

not intended to accomplish any of those goals. 

Additionally, we acknowledge, without deciding, that it is possible that some actions that 

may appear at first glance to constitute “filling” prohibited under § 30304 could be permitted as 

“cultivating” under the farming activities exemption. In particular, defendants argue that the 

placement of manure on farmland constitutes filling, but would be allowed as a farming activity 

under MCL 324.30305(2)(e). Notably, however, “fill material” is defined for purposes of Part 

303 as “soil, rocks, sand, waste of any kind, or any other material that displaces soil or water or 

reduces water retention potential.” MCL 324.30301(1)(d) (emphasis added). To resolve the 

overlap between MCL 324.30304 and MCL 324.30305 concerning draining, the Huggett Court 

applied “a balanced reading” of those sections to only allow “inconsequential draining” to be 

conducted without permit. Id. at 720 (emphasis added). Analogously, we conclude that even if 

“cultivating” may encompass some limited placement of fill material in a wetland, this permitted 

act must be balanced with the express prohibition of fill materials which displace water or soil or 

reduce the wetland’s ability to retain water. See MCL 324.30301(1)(d); MCL 324.30304(a); 

MCL 324.30305(2)(e). 

Accordingly, although placing certain materials, such as manure, on a wetland in order to 

cultivate the land may qualify under the farming activities exemption, we cannot conclude that 

defendant’s extensive placement of soil and other materials in this case qualifies under the 

exemption, especially given the definition of “fill material” in MCL 324.30301(1)(d). It is 

apparent from the documentary evidence in the record that there was no genuine issue of 

material fact that defendants’ extensive filling of the approximately 1.6-acre area5

 was distinct 

from activities routinely performed in “the operation, improvement, expansion, and maintenance 

of a farm [or ranch], or to the actual practice of farming [or ranching],” see Huggett, 464 Mich at 

719, especially because it completely changed the character of the vast majority of that 1.6-acre 

area so that it is now an upland meadow surrounded by wetland, except for the very small 

portions of the area that still qualify as wetland despite the filling.6 See Allison, 481 Mich at 

 

5

 As further discussed infra, the trial court concluded that only 1.2 acres of the total area filled 

was subject to relief under the statute of limitations. 

6

 There is no dispute that the filled area was no longer a wetland. However, the parties dispute 

the effect of the filling on the entire 145-acre wetland complex. 
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425; Calhoun, 297 Mich App at 11. Cf. MCL 324.30305(2)(e), as amended by 2012 PA 247 

(now MCL 324.30305(2)(e)(iii)) (“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”.) (emphasis added).

Thus, we find that the trial court correctly determined that defendants’ filling activities 

required a permit and properly granted summary disposition in favor of plaintiff pursuant to 

MCR 2.116(C)(10).7

III. STATUTE OF LIMITATIONS 

 Defendants argue that the trial court erred by denying their motion for summary 

disposition pursuant to MCR 2.116(C)(7) because plaintiff’s complaint was barred by both the 

applicable statute of limitations and the doctrine of laches. We disagree. 

A. STANDARD OF REVIEW 

This Court reviews de novo both the applicability of a statute of limitations, Attorney Gen 

v Harkins, 257 Mich App 564, 569; 669 NW2d 296 (2003), and the trial court’s ruling on a 

motion for summary disposition, Kincaid v Cardwell, 300 Mich App 513, 522; 834 NW2d 122 

(2013). “Summary disposition under MCR 2.116(C)(7) is appropriate when the undisputed facts 

establish that the plaintiff’s claim is barred under the applicable statute of limitations.” Kincaid, 

300 Mich App at 522. “Generally, the burden is on the defendant who relies on a statute of 

limitations defense to prove facts that bring the case within the statute.” Id.

When reviewing a motion under MCR 2.116(C)(7), this Court must accept all 

well-pleaded factual allegations as true and construe them in favor of the plaintiff, 

unless other evidence contradicts them. If any affidavits, depositions, admissions, 

or other documentary evidence are submitted, the court must consider them to 

determine whether there is a genuine issue of material fact. If no facts are in 

dispute, and if reasonable minds could not differ regarding the legal effect of 

those facts, the question whether the claim is barred is an issue of law for the 

court. However, if a question of fact exists to the extent that factual development 

could provide a basis for recovery, dismissal is inappropriate. [Dextrom v 

Wexford Co, 287 Mich App 406, 428-429; 789 NW2d 211 (2010) (citations 

omitted).] 

 

7

 For similar reasons, the trial court properly denied defendants’ earlier motion for summary 

disposition pursuant to MCR 2.116(C)(8). See Diallo v LaRochelle, 310 Mich App 411, 414; 

871 NW2d 724 (2015) (“A motion for summary disposition under MCR 2.116(C)(8) tests the 

legal sufficiency of a complaint.”) (quotation marks and citation omitted); Diem v Sallie Mae 

Home Loans, Inc, 307 Mich App 204, 210; 859 NW2d 238 (2014) (“Summary disposition under 

MCR 2.116(C)(8) is appropriate where the complaint fails to state a claim on which relief may 

be granted.”) (quotation marks and citation omitted). 
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B. ANALYSIS 

1. APPLICABLE STATUTE OF LIMITATIONS 

 Pursuant to MCL 324.30315(1): 

If, on the basis of information available to the department [of environmental 

quality], the department finds that a person is in violation of this part or a 

condition set forth in a permit issued under section 30311 or 30312, the 

department shall issue an order requiring the person to comply with the 

prohibitions or conditions or the department shall request the attorney general to 

bring a civil action under section 30316(1). 

Under MCL 324.30316(1), if the department so requests, “[t]he attorney general may commence 

a civil action for appropriate relief, including injunctive relief[.]” The NREPA does not provide 

a statute of limitations for enforcement actions. Harkins, 257 Mich App at 570. 

 “Statutes of limitations are found at Chapter 58 of the Revised Judicature Act (RJA), 

MCL 600.5801 et seq.” Peabody v DiMeglio, 306 Mich App 397, 404; 856 NW2d 245 (2014). 

In Harkins, 257 Mich App at 569-570, we concluded that the attorney general’s civil action 

seeking restoration of a wetland following violations of Part 303 of the NREPA “comes within 

the meaning of a ‘personal action’ as defined in [MCL 600.]5813” for two reasons: “it seeks to 

‘repair some loss,’ ” and “[a]ctions brought by the Attorney General on behalf of government 

departments are deemed personal actions.” (Citation omitted.) MCL 600.5813 provides that 

“[a]ll other personal actions shall be commenced within the period of 6 years after the claims 

accrue and not afterwards unless a different period is stated in the statutes.” Accordingly, given 

the absence of a statute of limitations in the NREPA, we reasoned: 

While MCL 324.30316 provides for the commencement of a civil action by the 

Attorney General to seek “appropriate relief, including injunctive relief” for 

permit violations, it does not state a period of limitations for bringing such 

actions. The Revised Judicature Act specifies that § 5813 is the general statute of 

limitations applying to “[a]ll other personal actions . . . unless a different period is 

stated in the statutes.” This Court has held that “a civil cause of action arising 

from a statutory violation is subject to the six-year limitation period found in § 

5813, if the statute itself does not provide a limitation period.” DiPonio Constr 

Co v Rosati Masonry Co, Inc, 246 Mich App 43, 56; 631 NW2d 59 (2001). There 

being no period of limitations expressly applicable to actions brought under the 

NREPA, the general limitation provisions of § 5813 apply. [Harkins, 257 Mich 

App at 570-571.] 

Thus, we concluded that the six-year statute of limitations under MCL 600.5813 applied to 

plaintiff’s civil action against the defendant, which sought restoration of the wetland. Id. at 570-

572. 

 Defendants attempt to distinguish Harkins from this case, emphasizing that Harkins only 

addressed § 5813’s application to equitable actions and the Harkins Court was not confronted 

with the argument that MCL 600.5809(2) applies to claims for civil penalties. However, MCL 
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600.5815 states, in relevant part, that “[t]he prescribed period of limitations shall apply equally 

to all actions whether equitable or legal relief is sought.” MCL 600.5815. See also Harkins, 257 

Mich App at 570 n 3 (quoting MCL 600.5815). Thus, even though Harkins focused on the 

period of limitations for equitable relief, under MCL 600.5815, the limitation period for an 

action does not hinge on the type of relief sought. Therefore, a necessary implication of Harkins 

is that all enforcement actions under Part 303 are governed by the six-year period of limitations 

under MCL 600.5813. Moreover, in Harkins, 257 Mich App at 568, the DEQ was seeking civil 

fines in addition to a restoration order, the same relief that plaintiff sought in this case. Thus, we 

reject defendants’ claim that Harkins is distinguishable and apply the holding therein as binding 

precedent. See MCR 7.215(C)(2), (J)(1). 

Further, even assuming, arguendo, that Harkins is not controlling, defendants’ argument 

that MCL 600.5809(2) is the correct statute of limitations has no merit. MCL 600.5809(2) 

provides, “The period of limitations is 2 years for an action for the recovery of a penalty or 

forfeiture based on a penal statute brought in the name of the people of this state.” Defendants 

characterize the instant action as being “based on a penal statute brought in the name of the 

people of this state” because a state agency, the DEQ, has brought this action through the 

attorney general and is seeking a penalty. However, the Michigan Supreme Court has 

recognized that MCL 600.5809(2) “applies in the criminal context,” meaning that it “applies 

only to civil forfeiture actions based on a penal statute.” People v Monaco, 474 Mich 48, 55; 

710 NW2d 46 (2006). No criminal statute or criminal action brought in the name of the people 

of this state is at issue here.8

 Further, when viewed in context, it is clear that the phrase “an 

action for the recovery of a penalty or forfeiture” refers to an action to recover a penalty or 

forfeiture that already has been assessed, i.e., a noncontractual money obligation, not an action 

to impose a penalty. See Sweatt v Dep’t of Corrections, 468 Mich 172, 179-180; 661 NW2d 201 

(2003) (stating that statutory terms are not construed in a vacuum; rather, they must be read in 

context). Accordingly, we reject defendants’ claim that the statute of limitations under MCL 

600.5809(2) is applicable here.9 

 

8

 Although there are provisions providing for criminal liability under MCL 324.30316, 

defendants were not held criminally liable in this case. 

9

 We also reject defendants’ reliance on the Michigan Department of Environmental Quality 

Land and Water Management Division Compliance and Enforcement Guidance Manual, which 

was proffered in the trial court, as a “guideline” that is binding on plaintiff with regard to the 

applicable statute of limitations. As explained supra, we recognized in Harkins—which was 

decided more than two years after the manual was issued, according to trial testimony and the 

date on the manual’s cover—that the NREPA does not include a statute of limitations for 

enforcement actions and “the general limitation provisions of § 5813 apply.” 

Further, there is no indication that the manual constitutes a “guideline” that is binding on 

the agency pursuant to MCL 24.203(7) (formerly MCL 24.203(6)). This Court has recognized 

that in order to promulgate a guideline under the Administrative Procedures Act, the agency 

must follow a specific procedure. See In re Pub Serv Com'n for Transactions Between Affiliates, 

252 Mich App 254, 265; 652 NW2d 1 (2002); Faircloth v Family Indep Agency, 232 Mich App 
-12- 

2. PLAINTIFF’S COMPLIANCE WITH THE STATUTE OF LIMITATIONS 

 Next, defendants contend that even if the six-year statute of limitations under MCL 

600.5813 applies, plaintiff’s complaint is barred because its claim accrued more than six years 

before the complaint was filed in December 2013. We reject defendants’ argument. 

MCL 600.5827 provides, “Except as otherwise expressly provided, the period of 

limitations runs from the time the claim accrues.” Generally, a “claim accrues at the time the 

wrong upon which the claim is based was done regardless of the time when damage results.” Id. 

Plaintiff filed suit on December 19, 2013, and conceded in the trial court that it was time-barred 

from seeking enforcement of any violation occurring between 2005 and 2007. The trial court 

limited its judgment accordingly, ordering defendants to restore the 1.2 acres of wetland “into 

which fill material was placed after December 19, 2007.” 

However, defendants maintain that plaintiff’s claim accrued in 2005 when they first

placed fill dirt in the wetland, and they suggest that allowing plaintiff to enforce violations that 

occurred after 2007 invokes the “continuing violations” doctrine—also known as the “continuing 

tort” or “continuing wrong” doctrine—which was abrogated by Garg v Macomb Co Community 

Mental Health Servs, 472 Mich 263, 284; 696 NW2d 646 (2005), amended 473 Mich 1205

(2005). We disagree. 

Under the continuing violations doctrine, “[w]here a defendant’s wrongful acts are of a 

continuing nature, the period of limitation will not run until the wrong is abated; therefore, a 

separate cause of action can accrue each day that defendant’s tortious conduct continues.” 

Harkins, 257 Mich App at 572 (quotation marks and citation omitted; alteration in original); see 

also Garg, 472 Mich at 278-282. However, the Michigan Supreme Court has concluded that 

“the ‘continuing violations’ doctrine is contrary to Michigan law” and “has no continued place in 

the jurisprudence of this state.” Garg, 472 Mich at 284, 290. Even though Garg was a 

discrimination case involving a three-year statute of limitations, “[t]he holding of Garg does not 

appear limited to discrimination cases; rather, the Court applied the plain text of the limitations 

and accrual statutes” in this state. Terlecki v Stewart, 278 Mich App 644, 655; 754 NW2d 899 

391, 403 n 6; 591 NW2d 314 (1998), citing MCL 24.203(6) (now MCL 24.203(7)) and MCL 

24.224. Defendants have provided no evidence that such a process was followed before the 

manual was issued here, and we have found no indication that such a process was followed. See 

MCL 24.224. Rather, the relevant documents suggest that the contrary is true. The manual 

explains, “This manual describes the process and procedure for the Land and Water Management 

Division enforcement and compliance program, and implements the Department of 

Environmental Quality Compliance and Enforcement Policy, 04-003,” and a revised version of 

DEQ Compliance and Enforcement Policy 04-003 states at the top, “This document is intended 

to provide guidance to staff to foster consistent application of the DEQ’s compliance and 

enforcement processes and procedures. This document is not intended to convey any rights to 

any person nor itself create any duties or responsibilities under the law. This document and 

matters addressed herein are subject to revision.” (Emphasis added.) Further, Smith testified at 

trial that the DEQ division that promulgated the manual no longer exists, and that the manual is 

no longer in use by the DEQ. 
-13- 

(2008). Accordingly, we have held that the continuing violations doctrine is no longer viable in 

Michigan. See Rusha v Dept of Corr, 307 Mich App 300, 313 n 9; 859 NW2d 735 (2014); 

Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich App 264, 

285-286; 769 NW2d 234 (2009); Terlecki, 278 Mich App at 655. 

 At first glance, it may appear that plaintiff’s claims in this case are based on the nowoverruled doctrine. However, an examination of Garg reveals that plaintiff’s claims were not 

based on that doctrine. 

In Garg, the plaintiff filed suit in 1995 claiming unlawful retaliation under the Civil 

Rights Act, MCL 37.2101 et seq. Garg, 472 Mich at 270. She alleged, among other things, that 

she was denied multiple promotions after filing a grievance in 1987. Id. at 270, 277. The Court 

reasoned that MCL 600.5805, which sets forth the statute of limitations for tort actions, and 

MCL 600.5827, which pertains to claim accrual, do not “permit[] a plaintiff to recover for 

injuries outside the limitations period when they are susceptible to being characterized as 

‘continuing violations.’ To allow recovery for such claims is simply to extend the limitations 

period beyond that which was expressly established by the Legislature.” Id. at 281-282. The 

Court held “that a person must file a claim under the [CRA] within three years of the date his or 

her cause of action accrues, as required by § 5805(10).” Id. at 284. Applying the three-year 

statute of limitations to the plaintiff’s claims in Garg, the Court ruled that “plaintiff’s claims of 

retaliatory discrimination arising from acts occurring before June 21, 1992, are untimely and 

cannot be maintained.” Id. at 286. 

 Thus, under Garg, each alleged violation of the statute was a separate claim with a 

separate time of accrual. This Court came to the same conclusion in Tarlecki, explaining that, 

under Garg, whether a claim is timely is determined by the statute of limitations applicable to 

that claim, and that a “claim accrue[s] ‘[e]xcept as otherwise expressly provided . . . at the time 

the wrong upon which the claim is based was done regardless of the time when damage results.’ 

” Tarlecki, 278 Mich App at 657, quoting MCL 600.5827. As such, the fact that some of a 

plaintiff’s claims accrued outside the applicable limitation period does not time-bar all of the 

plaintiff’s claims. See Garg, 472 Mich at 286; Tarlecki, 278 Mich App at 657-658. 

Here, defendants violated Part 303 each time they deposited fill material in the wetland. 

See MCL 324.30304(a). Thus, even though plaintiff could not seek enforcement of the 

violations that occurred before December 19, 2007, it was not barred from initiating an 

enforcement action for the violations that occurred within the limitations period. Thus, the trial 

court properly concluded that plaintiff’s claims arising from acts occurring after December 19, 

2007, were not time-barred. 

3. DOCTRINE OF LACHES 

 Lastly, defendants argue that the doctrine of laches bars plaintiff’s claims. We disagree. 

“The doctrine of laches is triggered by the plaintiff’s failure to do something that should 

have been done under the circumstances or failure to claim or enforce a right at the proper time.” 

Attorney Gen v PowerPick Club, 287 Mich App 13, 51; 783 NW2d 515 (2010). However, the 

doctrine is only “applicable in cases in which there is an unexcused or unexplained delay in 
-14- 

commencing an action and a corresponding change of material condition that results in prejudice 

to a party.” Pub Health Dep’t v Rivergate Manor, 452 Mich 495, 507; 550 NW2d 515 (1996). 

See also Knight v Northpointe, 300 Mich App 109, 114; 832 NW2d 439 (2013) (“If a plaintiff 

has not exercised reasonable diligence in vindicating his or her rights, a court sitting in equity 

may withhold relief on the ground that the plaintiff is chargeable with laches.”); Tenneco Inc v 

Amerisure Mut Ins Co, 281 Mich App 429, 457; 761 NW2d 846 (2008) (“For laches to apply, 

inexcusable delay in bringing suit must have resulted in prejudice.”). “The defendant has the 

burden of proving that the plaintiff’s lack of due diligence resulted in some prejudice to the 

defendant.” Twp of Yankee Springs v Fox, 264 Mich App 604, 612; 692 NW2d 728 (2004). The 

Michigan Supreme Court previously stated that when a party files their claim within the relevant 

period of limitation, “any delay in the filing of the complaint was presumptively reasonable, and 

the doctrine of laches is simply inapplicable.” Michigan Ed Employees Mut Ins Co v Morris, 

460 Mich 180, 200; 596 NW2d 142 (1999). But this Court has held that courts may apply the 

doctrine of laches to bar actions at law, even when the statute of limitations established by the 

Legislature has not expired. Tenneco, 281 Mich App at 457. 

 In this case, it is likely that plaintiff did not “exercise[] reasonable diligence” in pursuing 

its rights.10 See Knight, 300 Mich App at 114. However, defendants have not identified any 

prejudice that would justify application of the doctrine of laches. See Yankee Springs, 264 Mich 

App at 612. Defendants assert that due to plaintiff’s delay, the filled area is now “a cultivated 

and stabilized field of pasture grass.” However, they do not explain how the presence of a 

stabilized field of pasture grass demonstrates that plaintiff’s delay caused “a corresponding 

change of material condition that result[ed] in prejudice to [defendants].” Rivergate Manor, 452 

Mich at 507 (emphasis added); see also Twp of Yankee Springs, 264 Mich App at 612. For 

example, they identify no additional expense or harm that they have incurred, or that they will 

incur, related to the pasture grass that has resulted exclusively from plaintiff’s delay. Instead, 

they essentially argue that laches should apply because the area was successfully converted into 

something of a different nature during the period of plaintiff’s delay. Cf. PowerPick Club, 287 

Mich App at 51 (“The defense, to be raised properly, must be accompanied by a finding that the 

delay caused some prejudice to the party asserting laches and that it would be inequitable to 

ignore the prejudice so created.”). Moreover, defendants had notice from plaintiff that it may 

assert its rights at any time, and they continued growing pasture grass on the field at their own 

risk. 

Most importantly, however, defendants are not entitled to assert the equitable defense of 

laches because they came before the trial court with unclean hands. PowerPick Club, 287 Mich 

 

10 Plaintiff sent a violation notice to defendants in December 2010 and ordered them to restore 

the area within 30 days, or within a time frame mutually agreed upon by the parties. After 

defendants asserted that they were exempt from the wetland permitting requirements, plaintiffs 

warned defendants in February 2011 that “if the site is not restored, . . . this violation may be 

referred for escalated enforcement action.” Subsequently, one of plaintiff’s employees visited 

the property once a year in 2011, 2012, and 2013, and observed that restoration efforts had not 

begun. It is unclear why plaintiff waited until the end of 2013 to file an enforcement action. 
-15- 

App at 50-52. “Our Supreme Court has observed that a party who has ‘acted in violation of the 

law’ is not ‘before a court of equity with clean hands,’ and is therefore ‘not in position to ask for 

any remedy in a court of equity.’ ” Id. at 52. As explained earlier in this opinion, defendants 

violated Part 303 of the NREPA each time they deposited fill material in the wetland. See MCL 

324.30304(a). Thus, the trial court properly concluded that the doctrine of laches does not bar 

plaintiff’s claim in this case. 

IV. RESTORATION RULING 

 Next, defendants contend that the trial court erred in ordering them to restore the area of 

the wetland on which fill material was deposited after December 19, 2007. We disagree. 

A. STANDARD OF REVIEW 

The parties do not dispute that “the trial court’s factual findings are reviewed for clear 

error.” Canjar v Cole, 283 Mich App 723, 727; 770 NW2d 449 (2009). “A finding of fact is 

clearly erroneous when no evidence supports the finding or, on the entire record, this Court is left 

with a definite and firm conviction that a mistake has been made.” King v Michigan State Police 

Dep’t, 303 Mich App 162, 185; 841 NW2d 914 (2013). However, the parties dispute the 

standard of review applicable to the trial court’s restoration order in light of contradictory 

caselaw. Defendants assert that a restoration order constitutes equitable relief that is reviewed de 

novo, while plaintiff argues that a restoration order is injunctive relief that is reviewed for an 

abuse of discretion. We agree with plaintiff. 

 First, the applicable statute affords the trial court significant discretion in fashioning a 

remedy for a violation of Part 303. MCL 324.30316(4) provides:

In addition to the 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. [Emphasis 

added.] 

“[T]he term ‘may’ presupposes discretion and does not mandate an action.” In re Weber Estate, 

257 Mich App 558, 562; 669 NW2d 288 (2003). Accordingly, when “may” is used in the statute 

or court rule authorizing the action at issue, “review for an abuse of discretion is appropriate.” 

Detroit Edison Co v Stenman, 311 Mich App 367, 385 n 8; 875 NW2d 767 (2015). 

 Likewise, based on the relevant caselaw, we agree with plaintiff that the abuse of 

discretion standard applicable to injunctive relief is the applicable standard of review for the trial 

court’s restoration ruling. We previously recognized that an order to restore a wetland “is 

essentially a mandatory injunction that historically has been considered an equitable remedy[.]” 

People v Keeth, 193 Mich App 555, 562; 484 NW2d 761 (1992). Both this Court and the 

Michigan Supreme Court have repeatedly stated that a trial court’s decision to grant injunctive 

relief is reviewed for an abuse of discretion. See, e.g., Pontiac Fire Fighters Union Local 376 v 

City of Pontiac, 482 Mich 1, 8; 753 NW2d 595 (2008); Martin v Murray, 309 Mich App 37, 45; 

867 NW2d 444 (2015); Janet Travis, Inc v Preka Holdings, LLC, 306 Mich App 266, 274; 856 
-16- 

NW2d 206 (2014).11 “An abuse of discretion occurs when the court’s decision falls outside the 

range of reasonable and principled outcomes.” Ypsilanti Charter Twp v Kircher, 281 Mich App 

251, 273; 761 NW2d 761 (2008). 

B. ANALYSIS 

As onerous as the remedy may seem, the trial court did not abuse its discretion when it 

ordered defendants to restore the filled area. 

 

11 Other cases have indicated that a trial court’s imposition of an injunction is reviewed de novo. 

See, e.g., Williamstown Twp v Hudson, 311 Mich App 276, 289; 874 NW2d 419 (2015). The 

confusion seems to arise from the fact that an injunction is an equitable remedy, see Terlecki, 

278 Mich App at 663, and the fact that equitable relief is generally reviewed de novo, McDonald 

v Farm Bureau Ins Co, 480 Mich 191, 197; 747 NW2d 811 (2008) (“When reviewing a grant of 

equitable relief, an appellate court will set aside a trial court’s factual findings only if they are 

clearly erroneous, but whether equitable relief is proper under those facts is a question of law 

that an appellate court reviews de novo.”). 

However, we located no recent Michigan Supreme Court cases indicating that a trial 

court’s imposition of an injunction is reviewed de novo. The most recent Supreme Court case 

that we could find that seemed to even suggest de novo review was School District for City of 

Holland, Ottawa & Allegan Cos v Holland Ed Ass’n, 380 Mich 314, 319; 157 NW2d 206 (1968). 

And, in reviewing the caselaw as a whole, it is clear that injunctive relief is carved out from the 

general rule that equitable relief is reviewed de novo and is, instead, reviewed for an abuse of 

discretion. See Pontiac Fire Fighters, 482 Mich at 8; Michigan Coal of State Employee Unions 

v Michigan Civil Serv Com'n, 465 Mich 212, 217; 634 NW2d 692 (2001); Martin, 309 Mich App 

at 45; Barrow v Detroit Election Com’n, 305 Mich App 649, 662; 854 NW2d 489 (2014) (“We 

review for an abuse of discretion a circuit court’s decision whether to grant injunctive relief.”); 

Wayne Co Retirement Sys v Wayne Co, 301 Mich App 1, 25; 836 NW2d 279 (2013) (“The 

decision whether to grant injunctive relief is discretionary, although equitable issues are 

generally reviewed de novo, with underlying factual findings being reviewed for clear error.”), 

vacated in part on other grounds 497 Mich 36 (2014); Cipri v Bellingham Frozen Foods, Inc, 235 

Mich App 1, 9; 596 NW2d 620 (1999). 

Notably, we acknowledged the competing standards of review in Cipri, 235 Mich App at 

9, while reviewing a trial court’s denial of a request for a restoration order under the Michigan 

Environmental Protection Act (“MEPA”): 

Lastly, equitable issues are reviewed de novo, although the findings of fact 

supporting the decision are reviewed for clear error. Webb v Smith (After 

Remand), 204 Mich App 564, 568; 516 NW2d 124 (1994). However, “[t]he 

granting of injunctive relief is within the sound discretion of the trial court, 

although the decision must not be arbitrary and must be based on the facts of the 

particular case.” Holly Twp v Dep’t of Natural Resources, 440 Mich 891[, 891; 

487 NW2d 753] (1992); see also Wayne Co Dep’t of Health v Olsonite Corp, 79 

Mich App 668; 699-700, 706-707; 263 NW2d 778 (1977). 

We ultimately determined that “the trial court did not abuse its discretion in denying plaintiff’s 

claim for equitable relief under the MEPA.” Cipri, 235 Mich App at 10 (emphasis added). 
-17- 

1. TRIAL COURT’S FINDINGS AND REASONING 

“Injunctive relief is an extraordinary remedy that issues only when justice requires, there 

is no adequate remedy at law, and there is a real and imminent danger of irreparable injury.” 

Janet Travis, Inc, 306 Mich App at 274. We consider the following factors in determining 

whether a trial court abused its discretion by issuing a permanent injunction: 

(a) the nature of the interest to be protected, (b) the relative adequacy to the 

plaintiff of injunction and of other remedies, (c) any unreasonable delay by the 

plaintiff in bringing suit, (d) any related misconduct on the part of the plaintiff, (e) 

the relative hardship likely to result to defendant if an injunction is granted and to 

plaintiff if it is denied, (f) the interests of third persons and of the public, and (g) 

the practicability of framing and enforcing the order or judgment. [Id. (quotation 

marks and citation omitted).] 

See also Kernen v Homestead Dev Co, 232 Mich App 503, 514; 591 NW2d 369 (1998). 

Additionally, “[c]ourts balance the benefit of an injunction to a requesting plaintiff against the 

damage and inconvenience to the defendant, and will grant an injunction if doing so is most 

consistent with justice and equity.” Id. at 274-275. 

A close examination of the trial court’s findings reveals that the court took into 

consideration—albeit not explicitly—these factors in determining that restoration of the wetland 

was warranted. Accordingly, for the reasons explained below, the trial court’s reasoning and 

conclusion were not outside the range of principled outcomes. See Ypsilanti Charter Twp, 281 

Mich App at 273. 

The trial court first stated that it was not persuaded that the area at issue was in the 

process of returning to a wetland. The court based this finding on its review of photographs 

proffered by both parties during the trial, particularly photographs clearly showing that 

defendants had filled the site and that pasture grass had been planted—two facts never disputed 

by defendants. Additionally, Martin had testified that only 0.4 acres of the area, at most, would 

revert back to wetland over time. Accordingly, the trial court’s finding was not clearly 

erroneous, and it plainly supported its conclusion that restoration was necessary to protect the 

public’s interest in preserving wetlands under the statute. See King, 303 Mich App at 185. 

 Next, the trial court found that defendants’ violation of the statute was not intentional and 

acknowledged defendants’ argument that restoration was unwarranted since the filled area had 

been improved because they “creat[ed] an upland area inside this wetland” that included various 

forms of wildlife. The court, however, concluded that such a consideration was not relevant to 

whether restoration is proper in this case, explaining, “I think what it comes down to is the Act 

has to be enforced. There’s no provision in there that . . . says that it’s all right for me to fill in a 

wetland if it’s going to improve it.” The trial court’s conclusion that this fact weighed in favor 

of ordering restoration, regardless of defendants’ intent, is supported by the statute, see MCL 

324.30316, and was not outside the range of principled outcomes. See Ypsilanti Charter Twp, 

281 Mich App at 273. 

 The trial court then determined that the parties’ potential settlement discussions regarding 
-18- 

the possibility of a “conservatory easement” were not relevant to its determination of whether 

restoration was proper. It also acknowledged the contradictory testimony regarding the 

prevalence of narrow-leaf cattails in the filled area, and whether that type of cattail constituted an 

invasive species that is harmful to the wetland. It ultimately concluded that it “was not 

convinced that there was really an invasive species issue either.” 

On appeal, defendants argue that because the filled area was previously dominated by 

narrow-leaf cattails, a nonnative species, it was improper for the trial court to order them to 

restore the area with native species, thereby making “the filled wetland better than it was 

before.” However, it is important to note that neither of the parties were certain as to which 

species were present in the wetland before it was filled, and there was conflicting testimony 

provided by defendants’ expert and plaintiff’s experts as to whether the area was previously 

dominated by narrow-leaf cattails and whether such cattails are harmful. Martin, defendants’ 

expert, testified that the filled area was dominated by narrow-leaf cattails based on her review of 

aerial photographs and her observations of the surrounding wetlands, although she thought there 

were “probably” other wetland species present. Plaintiff’s experts testified to the contrary, 

opining—based on aerial photographs, wetland samples, and other evidence—that the filled 

expanse was “a pretty diverse area” including “a number of different habitat types,” such as 

“large patches” of cattails as well as a mixture of assorted vegetation, including one section 

“dominated by shrubs.” There also was conflicting testimony about whether narrow-leaf cattails 

would be problematic to the restoration project or would render the restoration project futile. 

However, in determining whether a finding was clearly erroneous, we must give deference “to 

the trial court’s superior ability to judge the credibility of the witnesses who appeared before it.” 

Ambs v Kalamazoo Co Rd Comm’r, 255 Mich App 637, 652; 662 NW2d 424 (2003); see also 

MCR 2.613(C). Given the factual disputes below, the trial court’s finding that there was not “an 

invasive species issue” was not clearly erroneous. See King, 303 Mich App at 185. 

Furthermore, the trial court had the authority to order defendants “to restore as nearly as 

possible the wetland that was affected by the violation to its original condition immediately 

before the violation.” MCL 324.30316(4). Given the uncertainty regarding the wetland’s 

original condition, the trial court did not exceed its authority under Part 303 by ordering 

defendants to “[r]e-establish wetland vegetation in the restoration area by applying a DEQapproved native wetland plant seed mix and planting native Michigan species of wetland 

shrubs.” 

 Next, the trial court determined that the wetland had been “compacted,” and found that 

this fact was relevant to its consideration of whether the fill material should be removed. At 

trial, defendants’ counsel expressed doubt regarding Smith’s testimony on behalf of the DEQ 

that there were two to three feet of fill material throughout the filled area, based on the fact that 

only two soil borings were conducted within the area. However, plaintiff’s witnesses provided 

clear testimony regarding the depth of the fill and the heavy fill material that made further soil 

boring impossible. Thus, the court’s finding on this matter was not clearly erroneous. See King, 

303 Mich App at 185. 

 The trial court then noted that “[t]here was discussion concerning the statute of whether 

or not the loss of the wetland could deprive the state” of certain benefits, but the court “did not 

consider those to be requirements . . . because it was undisputed that the property had already 
-19- 

been designated as a wetland.” The statute to which the court was referring is MCL 324.30302, 

which sets forth the Legislature’s findings regarding wetland benefits. The experts who testified 

in this case disagreed regarding the benefits that the filled area previously provided, but the trial 

court seemed to presume that the wetland provided one or more of the benefits identified by the 

Legislature because the area already had been designated as a wetland. Nonetheless, given the 

fact that both parties acknowledged that the filled area provided some benefit, even though they 

disputed the types of benefits and the extent of the benefits, the trial court did not clearly err in 

concluding that restoration of the wetland would be beneficial given its designation as a wetland. 

See King, 303 Mich App at 185. 

However, defendants argue on appeal that the trial court should have considered the 

specific effects of the filing on the surrounding wetland complex. Specifically, they contend that 

“the wetland complex in which [they] placed fill dirt is not rare or imperiled, the fill has not 

affected any endangered or threatened species, and has not materially lessened the capacity of 

the wetland complex to function.”12 Likewise, they assert that restoring the filled area would 

impose a disproportionate burden on them because “the placement of fill dirt on 11⁄2 acres to 

make this pasture . . . has not had any significant impact on the 145[-]acre wetland complex.” 

Defendants rely on the wetland assessment report—prepared by their expert using methodology 

that had not previously been used to analyze a filled wetland area that was not observed prior to 

the filling—which concluded that restoration of the wetland would not materially improve the 

benefits provided by the entire 145-acre wetland complex. To the contrary, Kolhoff testified on 

behalf of the DEQ that “the fill eliminated the wetland . . . . It’s gone; it was a functioning 

wetland that was ponded. It had habitat value; it possibly had storm water value, it had water 

storage, water recharge, pollution control value and those values are gone.” Kolhoff conceded 

that the area was “a small part of a larger complex,” but explained that “it occupied a unique 

location compared to the rest of the wetland complex and it provided a different function than the 

remaining wetland would.” He also noted that this case involves “a significant fill as far as a 

permit issue is concerned,” because an “acre and a half is a substantial impact” for purposes of 

issuing permits or reviewing violations. Consistent with his testimony, it was undisputed that 

more than one acre of wetland was filled, which constitutes “a major project” for permitting 

purposes. See MCL 324.30306(3)(c)(i). Thus, on this record, the trial court was justified in 

concluding that restoration was warranted, and this conclusion was not outside the range of 

principled outcomes. See Ypsilanti Charter Twp, 281 Mich App at 273. 

Furthermore, the trial court expressly recognized the burden that restoration would place 

 

12 MCL 324.30301(k), as amended by 2009 PA 120, identifies various wetland types as falling 

within the “rare and imperiled wetland” category. Although whether a wetland was “rare and 

imperiled” may seem significant, the phrase only appears in one other Part 303 section, MCL 

324.30304b, which pertains to permits issued by the United States Army Corps of Engineers. 

MCL 324.30304b(1)(b)(i). Moreover, there was conflicting testimony regarding whether the 

area at issue previously was a rare and imperiled wetland as an “inundated shrub swamp,” and 

Kolhoff testified that “scrub-shrub areas like that typically can house a number of threatened or 

endangered or imperiled species.” 
-20- 

on defendants, but weighed this fact against the potential precedential effect of allowing 

defendants to destroy a wetland and expand their usable property without any recourse: 

So I understand that that leaves the [defendants] in a difficult spot in that the 

property has been filled, [sic] there’s the cost associated with reclearing the 

property[,] but if I did not order restoration that means that the [defendants] would 

in essence add an additional property to their land by filling this wetland. 

Likewise, it later stated, “The Court is . . . cognizant of the impact of this decision[,] but I believe 

that for the precedence value the Court cannot say that the [defendants] should not have to 

restore the property in this matter.” In so stating, the trial court implicitly recognized plaintiff’s 

and the public’s interest in ensuring that violations are remedied and prevented, and that 

individual citizens are not incentivized to violate the law, and infringe upon the public’s interest 

in preserving wetlands, in light of a likelihood that their actions will not be punished. 

 In sum, the trial court’s findings were not clearly erroneous, as it necessarily had to make 

credibility determinations given the conflicting evidence. See MCR 2.613(C); Ambs, 255 Mich 

App at 652. Under the circumstances, the restoration order was not an abuse of discretion, as the 

court’s ruling was not “outside the range of reasonable and principled outcomes.” Ypsilanti 

Charter Twp, 281 Mich App at 273. 

2. DEFENDANTS’ ADDITIONAL ARGUMENTS REGARDING 

THE RESTORATION ORDER 

Defendants argue that this Court should consider factors identified in cases applying the 

Michigan Environmental Protection Act (“MEPA”), Part 17 of the NREPA, MCL 324.1701 et 

seq., to determine whether the restoration order was warranted in this case. See Kernen, 232 

Mich App at 507. The MEPA provides, in relevant part, that 

[t]he attorney general . . . may maintain an action in the circuit court having 

jurisdiction where the alleged violation occurred or is likely to occur for 

declaratory and equitable relief against any person for the protection of the air, 

water, and other natural resources and the public trust in these resources from 

pollution, impairment, or destruction. [MCL 324.1701(1).] 

Because “virtually all human activities can be found to adversely impact natural resources in 

some way or another,” factors were developed to determine “whether the impact of a proposed 

action on wildlife is so significant as to constitute an environmental risk and require judicial 

intervention.” City of Portage v Kalamazoo Co Rd Comm’r, 136 Mich App 276, 280-282; 355 

NW2d 913 (1984). See also Nemeth v Abonmarche Dev, Inc, 457 Mich 16, 31; 576 NW2d 641 

(1998); Preserve The Dunes, Inc v Dep’t Of Environmental Quality & Technisand, Inc, 264 

Mich App 257, 262 n 3; 690 NW2d 487 (2004). The MEPA factors identified by defendants 

“are not mandatory, exclusive, or dispositive,” Preserve the Dunes, 264 Mich App at 262 

(quotation marks and citation omitted), and they were developed given the need for “the courts to 

give precise meaning to” the statutory language of Part 17 of the NREPA, Portage, 136 Mich 

App at 281-282. Because those factors were developed without considering the statute at issue 

in this case, MCL 324.30316, we must refrain from deviating from the clear text of the statute 
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and interjecting judicially crafted meaning into the words written by the Legislature and signed 

into law by the Executive. See Huggett, 464 Mich at 717. Accordingly, we decline to consider 

those factors, and we cannot conclude that the trial court abused its discretion by failing to 

consider those elements, especially because there is no legal authority mandating or suggesting 

their application in cases arising under Part 303. See Robinson v City of Lansing, 486 Mich 1, 

15; 782 NW2d 171 (2010) (“[I]t is well established that we may not read into the statute what is 

not within the Legislature’s intent as derived from the language of the statute.”) (quotation marks 

and citation omitted); In re Keyes Estate, 310 Mich App 266, 272; 871 NW2d 388 (2015) 

(“When the Legislature includes language in one part of a statute that it omits in another, this 

Court presumes that the omission was intentional.”). 

 Defendants also cite cases denying or reversing restoration orders under the federal 

CWA. According to one of the cases cited by defendants, the Eighth Circuit determines whether 

a restoration order is appropriate by considering whether the order 

(1) is designed to confer maximum environmental benefit, (2) is practical and 

feasible from an environmental and engineering standpoint, and (3) takes into 

consideration the financial resources of the defendant, and (4) includes 

consideration of defendant’s objections. [US v Huseby, 862 F Supp 2d 951, 966 

(D Minn, 2012).] 

Again, while the trial court could have considered these factors when deciding whether to order 

restoration, it would be inappropriate for us to conclude that consideration of these factors is 

mandatory when determining whether a restoration order is warranted for purposes of Part 303 

when the Legislature did not so restrict the trial court’s discretion. 

More generally, however, we reject defendants’ reliance on federal law as a basis for 

reversal. In Huggett, the Michigan Supreme Court rejected this Court’s reliance, in determining 

the scope of the farming activities exemption, on the “analogous, similarly worded” provisions 

of the CWA and its belief that the WPA was intended to “be consistent with, and at least as 

stringent as,” the CWA. See Huggett v Dep’t of Nat Res, 232 Mich App 188, 194-195; 590 

NW2d 747 (1998). The Supreme Court stated, “[T]he Court of Appeals relied on federal law to 

reach its conclusion. Because we can discern the Legislature’s intent on this question from the 

wetland provisions themselves, we need not concern ourselves with federal law in this case. For 

these reasons, we disagree with these aspects of the Court of Appeals opinion.” Huggett, 464 

Mich at 722 (citations omitted). Similarly, the Michigan Supreme Court noted in Garg, 472 

Mich at 282, “While federal precedent may often be useful as guidance in this Court's 

interpretation of laws with federal analogues, such precedent cannot be allowed to rewrite 

Michigan law.” There is no indication in the statute at issue that trial courts are required to 

consider specific factors before ordering restoration of a wetland, or that we are required to 

consider specific factors when reviewing a trial court’s order of restoration on appeal. 

Accordingly, we reject defendants’ reliance on federal caselaw in this case given the extensive 
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discretion13 under MCL 324.30316(4) for the trial court to order restoration of the wetland. 

V. CIVIL FINE 

Defendants next argue that the trial court erroneously ordered them to pay a $10,000 fine. 

Given the trial court’s stated reasons for imposing the fine pursuant to MCL 324.30316(1), the 

extensive discretion afforded under the statute, and our standard of review, we cannot conclude 

that the trial court abused its discretion. 

A. STANDARD OF REVIEW 

MCL 324.30316(1) states that “[i]n addition to any other relief granted under this section, 

the court may impose a civil fine[.]” Again, “the term ‘may’ presupposes discretion and does not 

mandate an action.” In re Weber Estate, 257 Mich App at 562. Accordingly, we conclude that 

the trial court’s imposition of a civil fine under Part 303 is reviewed for an abuse of discretion. 

See Detroit Edison Co, 311 Mich App at 385 n 8.

B. ANALYSIS 

In relevant part, MCL 324.30316(1) provides that “[i]n 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.” As discussed above, defendants violated the NREPA by placing fill material in a 

wetland without a permit. Thus, under Part 303 of the NREPA, the trial court was authorized to 

impose a maximum fine of $10,000 per day. 

 In its ruling on the record, the trial court first stated that plaintiff had requested the 

imposition of a $50,000 fine and expressly noted that the statute authorized up to $10,000 per 

day, “which is high.” The court then considered the fines that it had ordered in “some other 

cases . . . where there was of course just blatant disregard of the Department’s orders and total 

lack of cooperation.” Accordingly, it determined that a total fine of $10,000 was appropriate in 

this case. The court stated, “I think the violation occurred in 2008[,] [s]o we’ve got a lot of years 

there.” Accordingly, it concluded that it would characterize the fine as $2,000 per year from 

2010 through 2015, presumably in light of the fact that defendants first received notice of their 

violation, and were first ordered to remedy the violation, in 2010. In so reasoning, the trial court 

only considered a portion of defendants’ ongoing violation of Part 303. Additionally, when 

divided per diem, based on the limited time frame established by the court, the fine imposed was 

 

13 Notably, the Legislature specified numerous criteria for plaintiff to consider when determining 

whether to approve a permit for a prohibited activity under MCL 324.30304, including many of 

the factors advanced by defendants on appeal. See MCL 324.30311. The fact that the 

Legislature could have but chose not to provide such guidance for trial courts determining 

whether to undo prohibited activities in fashioning a remedy further suggests that a trial court has 

discretion. See In re Keyes Estate, 310 Mich App at 272 (“When the Legislature includes 

language in one part of a statute that it omits in another, this Court presumes that the omission 

was intentional.”). 
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only approximately $5.50 per day, as opposed to the $10,000 per day fine authorized by statute. 

Thus, the trial court’s imposition of a fine of $10,000 in total was not an unprincipled outcome, 

especially, as defendants emphasize, in light of the lack of evidence that they acted in willful 

defiance of the law. See Ypsilanti Charter Twp, 281 Mich App at 273. 

 Defendants again rely on federal law to show that the fine was outside the range of 

principled outcomes, but this reliance is misplaced. Two of the cases cited by defendants, US v 

Bay-Houston Towing Co, Inc, 197 F Supp 2d 788 (ED Mich, 2002), and Catskill Mountains 

Chapter of Trout Unlimited, Inc v City of New York, 244 F Supp 2d 41 (ND New York, 2003), 

rev’d in part and remanded by 451 F3d 77 (2nd Cir, 2006), applied § 1319 of the CWA. 

Defendants focus on § 1319(d), which provides, in relevant part: 

In determining the amount of a civil penalty the court shall consider the 

seriousness of the violation or violations, the economic benefit (if any) resulting 

from the violation, any history of such violations, any good-faith efforts to 

comply with the applicable requirements, the economic impact of the penalty on 

the violator, and such other matters as justice may require. [33 USC 1319(d).] 

The Michigan Legislature did not direct courts to consider these such factors when imposing 

civil fines under MCL 324.30316(1), and we may not read such a requirement into the statute. 

Cf. Garg, 472 Mich at 282; Huggett, 464 Mich at 722. 

 In the other case cited by defendants, US v Bradshaw, 541 F Supp 880, 883 (D Maryland, 

1981), the statutory section under which the government sought a civil penalty is not readily 

apparent. The district court simply determined that it was “unnecessary to impose any [civil 

penalties] because the [d]efendant immediately ceased his activities upon notice of a possible 

violation.” Id. Here, however, the trial court had the discretion to reach the conclusion that it 

did. Notably, the statute at issue, MCL 324.30316(1), does not limit the trial court’s discretion 

by preventing it from imposing a fine in situations where the violators immediately ceased their 

illegal activities, as defendants claim they did. Further, even if defendants did cease their illegal 

activities, they failed to remedy their violation before the DEQ initiated this action seeking 

restoration of the wetland and other relief, which was three years after the DEQ first notified 

them of their violative activities. 

 We also disagree with defendants that the penalty-related provisions in the Michigan 

Department of Environmental Quality Land and Water Management Division Compliance and 

Enforcement Guidance Manual admitted below establish that the trial court abused its discretion 

in this case. As previously explained, there is no evidence indicating that the manual constitutes 

a guideline that is binding on plaintiff.14 Likewise, there is no indication in the statute that the 

Legislature intended for the trial court’s discretion to be limited by any provisions in a 

compliance manual, assuming that it was in effect during the events at issue in this case. 

 

14 See the discussion in footnote 9. 
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VI. CONCLUSION 

Defendants have failed to establish that any of their claims raised on appeal warrant 

relief. 

Affirmed. 

/s/ Michael J. Riordan 

/s/ Patrick M. Meter 

/s/ Donald S. Owens