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.
I
The facts of this case surround plaintiffs Wallace
Huggett and Huggett Sod Farm’s proposal to build a commercial
cranberry farm on land in Cheboygan County. Plaintiff Huggett
acquired the 325-acre parcel, all but forty-seven acres of
which is wetland, after a mortgage on the property was
assigned to him and he foreclosed the mortgage. Before
plaintiff acquired the parcel, which abuts Lake 16, the parcel
had been the site of a peat farm. After acquiring title,
plaintiffs proposed to build a 200-acre commercial cranberry
farm on the land. To create beds in which cranberries could
grow, the proposed farm entailed placing fill material in
wetland areas, excavating and removing soil from wetland
areas, building dikes and culverts; digging irrigation
ditches; and constructing a reservoir and pumping station,
roads, and an airstrip.
In 1990, plaintiff Huggett contacted defendant Department
of Natural Resources to determine whether he needed a wetland
permit to proceed with the proposed cranberry farm. Defendant
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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
3
(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.
II
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.
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(c) Construct, operate, or maintain any use or
development in a wetland.
(d) Drain surface water from a wetland.
However, part 303 also provides that certain activities are
not subject to § 30304's prohibitions. Section 30305 sets
forth permissible uses of a wetland, and states in pertinent
part:
(2) The following uses are allowed in a
wetland without a permit subject to other laws of
this state and the owner’s regulation:
* * *
(e) Farming, horticulture, silviculture,
lumbering, and ranching activities, including
plowing, irrigation, irrigation ditching, seeding,
cultivating, minor drainage, harvesting for the
production of food, fiber, and forest products, or
upland soil and water conservation practices.
Wetland altered under this subdivision shall not be
used for a purpose other than a purpose described
in this subsection without a permit from the
department.
(f) Maintenance or operation of serviceable
structures in existence on October 1, 1980 or
constructed pursuant to this part of former Act No.
203 of the Public Acts of 1979.
(g) Construction or maintenance of farm or
stock ponds.
(h) Maintenance, operation, or improvement
which includes straightening, widening, or
deepening of the following which is necessary for
the production or harvesting of agricultural
products:
(i) An existing private agricultural drain.
(ii) That portion of a drain legally
established . . . which has been constructed or
improved for drainage purposes.
(iii) A drain constructed pursuant to other
provisions of this part . . .
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(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
6
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
7
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.
8
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
9
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.”
10
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
11
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
12
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.
13
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
14
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.
15