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Two from Mid-Michigan Challenge the Constitutionality of Michigan 'Part 303' Wetlands Laws
https://olcplc.com/public/media?1742775554
On behalf of a Saginaw County property owner and a Bay County business owner, Outside Legal Counsel PLC has filed a federal lawsuit challenging the constitutionality of Michigan's wetlands laws. According to the civil rights attorney bringing the suit, "this unfair law must be struck and totally redesigned from the ground up."The complaint, filed with the US District Court sitting in Lansing, asks a federal judge to strike down certain provisions of Part 303 of the Natural Resources and Environmental Protection Act. The suit alleges that Michigan's "wetlands laws" violate the Eighth and Fourteenth Amendments to the US Constitution. Most notably, Part 303 is alleged to be written so "vaguely" that it fails to "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited." By being such, the law is accused of being void for vagueness - a constitutional doctrine that protects citizens from unclear and vaguely written laws. This state agency regularly seeks to impose fines of hundreds of thousands of dollars or more.
The lawsuit also challenges the secret inspection process used by state wetland officials when permissionlessly entering private property without warrants. Last week, another federal judge ruled one of the same inspectors also being sued in this case for similar Fourth Amendment violations can proceed forward.
"It is not that wetlands are unimportant or that reasonable and clear regulations are unwelcomed," states attorney Philip L. Ellison from the law firm of Outside Legal Counsel in Hemlock. "It is that this particular law is written so vaguely and has such drastic fines that it violates key constitutional protections and must be struck down."
Michigan currently has approximately 6.5 million acres of wetlands but many are located on properties owned by private citizens and businesses. The wetland statute requires a permit (without clarity of what is needed for that permit) if a property has a "bog, swamp, or marsh, inundated or saturated by water at a frequency and duration sufficient to support, and that under normal circumstances does support, hydric soils and a predominance of wetland vegetation or aquatic life." What constitutes a "bog, swamp, or marsh" is unclear. As is land with hydric soils with wetland vegetation or aquatic life having predominance.
EGLE regularly extracts massive cash payments from those who were simply ignorant of the wetlands law. At the same time, EGLE does not maintain a list of parcels or properties actually containing wetlands, despite Michigan law requiring such.
According to Ellison, state officials treat even a "disturbance" of a wetland a violation that can result in fines of up to $10,000 per day plus thousands or millions of dollars in restoration costs.
"If such a drastic obligation exists, the law needs be absolutely clear and it currently is not," explains Ellison.
One of the two plaintiffs in the case is Joshua Wenzlick, a Tittabawassee Township resident whose family recently testified about the horrifying experience with Michigan's wetland regulators from the Michigan Department of Environment, Great Lakes, and Energy (formerly known as the DEQ). The pond dispute was highlighted by local media. Several legislators were surprised by the report and even Josh's brother became emotional when sharing the stress this legal threat has caused. EGLE is seeking fines for a less than one acre pond that is alleged not to be covered by the wetlands law.
The other plaintiff is Paul Satkowiak. The long-time owner of a local excavation company is actively and vigorously defending himself from false allegations made by the state environmental regulatory agency for simply placing dirt and fill on an undeveloped parcel of property in Bay County's Mount Forest Township. Regular farm field soil is being mischaracterized by EGLE as "industrial waste" but is actually nothing more than regular dirt from Bay County farm fields.
State officials have tried to smear Satkowiak's good time with false press releases. He too is seeking to use this federal lawsuit to end EGLE's misuse of the Michigan wetland law.
The federal case has been assigned to federal Chief Judge Hala Y. Jarbou.
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