Huggett v. Department of Natural Resources

Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan

Opinion
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________

FILED JULY 17, 2001

WALLACE A HUGGETT and HUGGETT

SOD FARM, d/b/a MICHIGAN

CRANBERRY COMPANY,

Plaintiffs-Appellants,

v No. 113463

DEPARTMENT OF NATURAL RESOURCES,

Defendant-Appellee.

________________________________

BEFORE THE ENTIRE BENCH

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, MCL 324.30304, because it is a

farming activity that is not subject to the permit

requirements under the farming activities exemption provided

by MCL 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, MCL

324.30305(2)(j), or the existing farming exemption to the

requirements, MCL 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.

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, MCL 24.201 et seq., see MCL

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 MCL 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 NW2d 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 MCL

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 910 (2000). We

now affirm.

Part 303 of the Natural Resources and Environmental

Protection Act governs activities in wetlands.1 See MCL

324.30301 et seq. Most importantly, MCL 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.

1
Formerly, the Wetland Protection Act, MCL 281.701 et

seq., governed activities in wetlands. The act was repealed

by 1995 PA 59, but its provisions were recodified as part 303

of the Natural Resources and Environmental Protection Act.

See MCL 324.30301 et seq. (1994 PA 451). Because the

recodified provisions are the same as those provided by the

original act, which was in effect when this case was filed, we

will simply refer to the current provisions.

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 wetland 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 NW2d 164 (1999). Statutory

construction presents questions of law, which are reviewed de

novo. Id. at 413.

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

disagree.

When a statute uses a general term followed by specific

examples included within the general term, as the farming

activities exemption does, the canon of statutory construction

ejusdem generis applies. See Belanger v Warren Bd of Ed, 432

Mich 575, 583; 443 NW2d 372 (1989). This canon gives effect

to both the general and specific terms by “treating the

particular words as indicating the class, and the general

words as extending the provisions of the statute to everything

embraced in that class, though not specifically named by the

particular words.” Id., quoting 2A Sands, Sutherland

Statutory Construction (4th ed), § 47.17, p 166. In light of

the specific terms, the general term is restricted to include

only things of the same kind, class, character, or nature as

those specifically enumerated. See Sands Appliance Servs, Inc

v Wilson, 463 Mich 231, 242; 615 NW2d 241 (2000).

Under § 30305(2)(e), farming activities are generally

exempt from the wetland permit requirements, but, as

mentioned, that subsection specifically exempts “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.” These specific examples of farming activities

relate to the operation, improvement, expansion, and

maintenance of a farm, or to the actual practice of farming.2

Under the canon of ejusdem generis, then, the general

exemption for farming activities can include activities not

specifically listed in § 30305(2)(e), but the activities must

2
We note that harvesting for the production of forest

products seems to relate to the general exemption for

lumbering activities.

be of the kind, class, character, or nature of operating a

farm or practicing farming. The activities plaintiffs seek to

exempt, however, are not in the kind, class, character, or

nature of operating a farm.

To reiterate, absent a permit, part 303 prohibits the

following activities in wetlands: (a) depositing or permitting

the placing of fill material in a wetland; (b) dredging,

removing, or permitting the removal of soil or minerals from

a wetland; (c) constructing, operating, or maintaining any use

or development in a wetland; or (d) draining surface water

from a wetland. See MCL 324.30304. Nevertheless, a permit is

not required to engage in farming, horticulture, silviculture,

lumbering, or 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.

As is apparent, some of the activities allowed under §

30305 overlap with the activities prohibited under § 30304.

For example, § 30304 prohibits draining surface water from a

wetland, while § 30305 allows minor drainage. To make both

sections viable, 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. See MCL 324.30301(b).3 However,

other activities allowed under § 30305, for example, seeding

and harvesting, present no such overlap with the prohibitions.

When there is no overlap, a person, or his successor, seeking

to engage in farming, horticulture, silviculture, lumbering,

or ranching activities can do so without the restrictions

imposed by the wetland permit requirements.

With this balanced reading of part 303, some cases may

leave room for debate whether drainage activities become more

than “minor drainage.” However, no such debate is possible in

this case. Plaintiffs’ 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.

Our conclusion that the farming activities exemption does

not extend to plaintiffs’ proposed activities is further

supported by other provisions of the wetland permit

exemptions. Subdivision 30305(2)(g) exempts “[c]onstruction

or maintenance of farm or stock ponds,” and § 30305(2)(i)

exempts “[c]onstruction or maintenance of farm roads” in

certain instances. Were plaintiffs correct that the general

farming activities exemption encompasses all activities

3
“Minor drainage” is statutorily defined to mean

“ditching and tiling for the removal of excess soil moisture

incidental to the planting, cultivating, protecting, or

harvesting of crops or improving the productivity of land in

established use for agriculture, horticulture, silviculture,

or lumbering.”

necessary for farming, including constructing a farm, then

these subdivisions would be surplusage because they would be

subsumed by the general farming activities exemption. We must

avoid an interpretation that renders any part of a statute

surplusage, see MCI, supra at 414, so the general farming

activities exemption cannot exempt construction from the

wetland permit requirements. Rather, the farming activities

exemption covers only activities in the same kind, class,

character, or nature as those activities enumerated in

§ 30305(2)(e), and the aspects of plaintiffs’ proposed

activities that are construction, for example constructing a

pumping station and an airstrip, are not such activities.

Though the Court of Appeals came to the correct

conclusion in this case, we disagree with certain of its

reasoning. First, the farming activities exemption is not

limited to “land in established use for agriculture,” as that

Court concluded. 232 Mich App at 195. Though the Legislature

did condition certain use exemptions on the uses having been

in existence, see § 30305(2)(f) (structures in existence on

October 1, 1980); § 30305(2)(h) (existing, established, and

constructed drains); § 30305(2)(n) (dikes and levees in

existence on October 1, 1980); § 30305(3) (wetland drained

before and continuously since October 1, 1980), it did not so

condition the farming activities exemption. Thus, when

considering whether an alleged farming activity is exempted

from the wetland permit requirements, the inquiry is not

whether the land in question was in established use for

farming activities, but whether the activity is of the same

kind, class, character, or nature as the specific activities

that relate to operating a farm listed in § 30305(2)(e). If

so, even if the activity was not previously established, it

will fall within the exemption for farming activities and the

wetland permit requirements will not apply. Second, the Court

of Appeals relied on federal law to reach its conclusion. See

232 Mich App 194-195. 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.

In sum, the activities necessary to establish and operate

plaintiffs’ proposed cranberry farm do not fit within §

30305(2)(e)’s farming activities exemption. Once constructed,

certain aspects of the proposed farm may involve exempted

activities, but many of the activities necessary to establish

and operate the proposed farm do not. We, therefore, move on

to consider whether the proposed cranberry farm is within the

other exemptions to the wetland permit requirements that we

directed the parties to address.

B. THE PRODUCTION AND HARVESTING DRAINING EXEMPTION

When we granted leave, we directed the parties to address

the applicability of § 30305(2)(j). This subdivision exempts

“[d]rainage 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,”

but not if the wetland is “contiguous to a lake or

stream, . . . or to a wetland 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.” Though this might exempt

certain aspects of plaintiffs’ proposed cranberry farm if it

were constructed, as plaintiffs concede, activities other than

drainage, for example certain construction and filling that

are not otherwise exempted from the wetland permit

requirements, are necessary to have the farm constructed.

Thus, § 30305(2)(j) does not exempt the proposed farm from the

wetland permit requirements.4 We, therefore, proceed to

consider the last exemption we ordered the parties to address.

C. THE EXISTING FARMING EXEMPTION

Our grant order also directed the parties to address the

applicability of § 30305(3). This subsection exempts from the

permit requirements activities in wetland that was drained for

farming before October 1, 1980, and has continued to be

drained as part of an ongoing farming operation. Although

plaintiffs’ land was a peat farm before plaintiffs purchased

it, they have conceded that the cranberry farm was not an

ongoing activity in a wetland drained for farming before

October 1, 1980. Hence, this subsection also does not exempt

4
We note that plaintiffs’ land is adjacent to Lake 16.

However, the trial court did not make a finding whether the

land is “contiguous” to Lake 16 as that term is used in

§ 30305(2)(j), which is defined in administrative rules

promulgated by the Department of Natural Resources. See 1999

AC, R 281.921; see also MCL 324.30319(1) (directing the DNR to

promulgate rules to enforce part 303). Therefore, we do not

consider whether plaintiffs’ land could fall into the

exception to the draining exemption.

the proposed farm from the wetland permit requirements.

D. THE WETLAND PERMIT REQUIREMENTS APPLY

Absent an applicable exemption or a wetland permit,

§ 30304 generally prohibits placing fill material in, removing

soil from, construction in, or draining surface water from a

wetland. Plaintiffs’ proposal to build a cranberry farm in a

wetland entails such activities, yet does not fall within the

statutory exemptions to the wetland permit requirements. For

plaintiffs to proceed with their proposal, they will have to

obtain a wetland permit from defendant. Although defendant

has denied plaintiffs a permit, part 303 provides plaintiffs

the right to request a hearing on the denial, which is

ultimately subject to judicial review. See § 30319. As

mentioned, plaintiffs have already begun these procedures, and

because there is no statutory exemption, we leave plaintiffs

to any remedies that they may be able to garner through these

procedures.

III

In conclusion, the farming activities exemption does not

exempt all activities necessary to farm, but only those

specifically listed in the exemption, or activities of the

same kind, class, character, or nature as the listed

activities. Because the activities necessary to establish and

operate plaintiffs’ proposed cranberry farm do not fit within

that exemption, or the production and harvesting draining

exemption, or the existing farming exemption, plaintiffs’

proposal is subject to the wetland permit requirements.

Defendant has already denied plaintiffs a permit, so

plaintiffs are left with the procedures for appealing from

denials of permits. The judgment of the Court of Appeals is

affirmed.

CORRIGAN , C.J., and WEAVER , KELLY , TAYLOR , YOUNG , and MARKMAN ,

JJ., concurred with CAVANAGH , J.

Huggett v. Department of Natural Resources

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