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Court of Appeals of Michigan.

DEPARTMENT OF ENVIRONMENTAL QUALITY, Plaintiff-Appellee, v. Gary SANCRANT and Tonya Sancrant, Defendants-Appellants.

No. 351904

Decided: June 24, 2021

Before: Jansen, P.J., and M. J. Kelly and Ronayne Krause, JJ. Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Elizabeth Morrisseau, Assistant Attorney General, for the Department of Environmental Quality. Fraser Trebilcock Davis & Dunlap, PC, Lansing (by Michael H. Perry) for Gary and Tonya Sancrant.

In this case involving the Natural Resources and Environmental Protection Act (the NREPA), MCL 324.101 et seq., defendants, Gary Sancrant (Gary) and Tonya Sancrant (Tonya), appeal as of right a judgment for plaintiff, the Department of Environmental Quality,1 entered following a bench trial. We affirm.


Defendants, a married couple, live and work in West Branch but own property, including a hunting cabin, in Schoolcraft County in the Upper Peninsula. A road—often referred to in the record as the “easement road”—exists on defendants’ property; it allows defendants and their neighbors to reach their respective cabins. It is undisputed that defendants had many problems with their neighbors and did not like that the easement road passes very close to defendants’ cabin.

The central issue in this case is that Gary installed a new road, and in doing so, he dredged from a wetland and placed fill in a wetland, contrary to Part 303 of the NREPA—specifically, MCL 324.30304. Plaintiff theorized that Gary installed the new road solely because of the neighbor issues,2 although Gary claimed that he also needed the new road because the easement road was being repeatedly flooded by beavers. Gary pleaded guilty to a misdemeanor for violating the statute, but the plea agreement did not require restoration of the wetland. Plaintiff commenced this action and obtained an order of restoration and a fine. Defendants contend on appeal that, in light of Gary's criminal matter, the restoration order was barred by principles of double jeopardy, collateral estoppel, and res judicata. They also contend that the trial court erred by finding Tonya liable after the bench trial because she was not involved in building the road and did not “permit” Gary to build it under the language of MCL 324.30304(a) and (b).


First, defendants argue that plaintiff's lawsuit and the wetland-restoration order violated Gary's double-jeopardy protections. We review this constitutional issue de novo. People v. Miller, 498 Mich. 13, 16-17, 869 N.W.2d 204 (2015).

MCL 324.30304 states:

Except as otherwise provided in this part or by a permit issued by the department under this part and pursuant to part 13, 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.[3]

MCL 324.30316 states, in part:

(1) The attorney general may commence a civil action for appropriate relief, including injunctive relief upon request of the department under section 30315(1). An action under this subsection may be brought in the circuit court for the county of Ingham or for a county in which the defendant is located, resides, or is doing business. The court has jurisdiction to restrain the violation and to require compliance with this part. In 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. A person who violates an order of the court is subject to a civil fine not to exceed $10,000.00 for each day of violation.

(2) A person who violates this part is guilty of a misdemeanor punishable by a fine of not more than $2,500.00.

* * *

(4) In addition to the civil fines and 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.[4]

Gary pleaded guilty to a misdemeanor violation of MCL 324.30304 on the basis of the building of the road in the wetland. The Schoolcraft County Prosecutor stated that he was only seeking a suspended sentence and fine and was not seeking restoration. The prosecutor said that the building of the road

shouldn't have been done [the] way it was, but I understand why it was done․ If the [Department of Environmental Quality], who I've spoken with, wishes to get restoration ․, they have options through the Attorney General's office, through the Court of Civil Claims, and stuff in Lansing, and or [sic] the option of filing here. But that's up to them. But from my perspective, I don't think that's the appropriate direction to proceed on this case․

The district court imposed a three-month suspended sentence 5 and ordered Gary to pay $1,000, as well as a “state fee” of $125 and a probation oversight fee.

Defendants contend that, in light of these criminal proceedings, a double-jeopardy violation occurred. The United States Constitution and the Michigan Constitution protect a person from being twice placed in jeopardy for the same offense. U.S. Const., Am. V; Const. 1963, art. 1, § 15. Interpretations of the federal double-jeopardy clause also apply to the state double-jeopardy clause. See Miller, 498 Mich. at 17 n. 9, 869 N.W.2d 204. “The prohibition against double jeopardy provides three related protections: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense.” People v. Nutt, 469 Mich. 565, 574, 594, 677 N.W.2d 1 (2004).

Defendants contend that the restoration order violated the protection against multiple punishments for the same offense.6 Double-jeopardy protections only apply to multiple criminal punishments. Hudson v. United States, 522 U.S. 93, 99, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997). This Court has stated that “the constitutional provision against double jeopardy is not violated when a civil penalty serves a purpose distinct from any punitive purpose.” People v. Artman, 218 Mich. App. 236, 246, 553 N.W.2d 673 (1996). One consideration is whether the Legislature has designated a particular penalty as civil or criminal. See generally Dawson v. Secretary of State, 274 Mich. App. 723, 733, 739 N.W.2d 339 (2007). Defendants contend that MCL 324.30316 facially designates a restoration order as a criminal punishment. This is not the case, however. The statute provides for both civil actions, in Subsection (1), and criminal actions, in Subsection (2), and then, in Subsection (4), it indicates that “the court”—i.e., the civil or criminal court—can issue an order of restoration. MCL 324.30316.

Accordingly, an order to restore can be issued in either a criminal or a civil proceeding, and here, it was issued in a civil proceeding. In addition, an order to restore a wetland has been historically viewed as an equitable remedy. See Dep't of Environmental Quality v. Gomez, 318 Mich. App. 1, 32, 896 N.W.2d 39 (2016). Black's Law Dictionary (11th ed.) defines “equitable,” in part, as “[e]xisting in equity; available or sustainable by an action in equity, or under the rules and principles of equity.” It defines “equity,” in part, as “[t]he body of principles constituting what is fair and right; natural law[.]” Black's Law Dictionary (11th ed.). It seems clear that the purpose of an order to restore issued in a civil proceeding is not punitive in nature but is related to ecological concerns and restoring the environment to what is “fair and right.”

In Hudson, 522 U.S. at 99-100, 118 S.Ct. 488, the United States Supreme Court set forth the following factors to analyze when determining whether a remedy in a civil case should be considered a punishment for double-jeopardy purposes:

(1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment—retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned. [Citation, quotation marks, and brackets omitted.]

As for Factor (1), the restoration order did not involve a “disability” or “restraint” approaching something like imprisonment. See id. at 104, 118 S. Ct. 488. It involved an affirmative action, but the action was merely to restore the wetland to its original state. Regarding Factor (2), there is no indication that a restoration order has historically been regarded as a punishment; instead, it has been viewed, as noted, as an equitable remedy. Gomez, 318 Mich. App. at 32, 896 N.W.2d 39. Regarding Factor (3), a restoration order does not come into play only on a finding of scienter. As for Factor (4), while a restoration order could promote the traditional “punishment” goal of deterrence, deterrence can promote both criminal and civil purposes. Hudson, 522 U.S. at 105, 118 S.Ct. 488. In Hudson, the Court stated that the sanctions at issue in that case (a banking case) served to promote the stability of the banking industry; it added, “To hold that the mere presence of a deterrent purpose renders such sanctions ‘criminal’ for double jeopardy purposes would severely undermine the Government's ability to engage in effective regulation of institutions such as banks.” Id. Similarly, in the present case, disallowing the restoration order would undermine plaintiff's goal of protecting wetlands. Concerning Factor (6), there is very clearly an alternative purpose, aside from punishment, to assign to a restoration order—i.e., the maintenance of wetlands and the maintenance of a healthy ecological environment. As for Factor (7), in Dawson, 274 Mich. App. at 736, 739 N.W.2d 339, the Court, in evaluating an assessed fine for a driving offense, stated that the fine was not excessive in light of the alternative goal of raising revenue. Here, the restoration order was not excessive in light of the alternative purpose of maintaining healthy wetlands.

Factor (5) could be viewed in defendants’ favor, because a violation of MCL 324.30316 is a crime. But in Hudson, 522 U.S. at 105, 118 S.Ct. 488, the Court stated: “[T]he conduct for which ․ sanctions are imposed may also be criminal (and in this case formed the basis for petitioners’ indictments). This fact is insufficient to render the money penalties and debarment sanctions criminally punitive, particularly in the double jeopardy context[.]” (Citations omitted.)

In sum, a review of all the factors and analogous caselaw reveals that the wetland-restoration order in the present civil proceeding did not violate the double-jeopardy protection against multiple punishments for the same offense.

Defendants also contend that plaintiff's lawsuit violated the protection against a second prosecution for the same offense after conviction. However, “[t]he prohibition against double jeopardy ․ protects against a second prosecution for the same offense after conviction[.]” Nutt, 469 Mich. at 574, 677 N.W.2d 1 (emphasis added). There was no second prosecution here. Plaintiff initiated a civil lawsuit after the criminal proceedings. Defendants refer to People v. Spicer, 216 Mich. App. 270, 548 N.W.2d 245 (1996), but that case is inapposite because it involved an analysis of whether two criminal prosecutions related to the same transaction, see id. at 273, 548 N.W.2d 245. Defendants’ reference to Bravo-Fernandez v. United States, 580 U.S. 5, 137 S. Ct. 352, 196 L. Ed. 2d 242 (1996), is similarly misplaced because that case involved whether the defendants could be criminally retried for certain issues, see generally 137 S. Ct. at 356-357.


Defendants contend that principles of collateral estoppel and res judicata indicate that Gary's criminal conviction barred the present lawsuit against Gary and the wetland-restoration order. We review these issues de novo. Pierson Sand & Gravel, Inc. v. Keeler Brass Co., 460 Mich. 372, 379, 596 N.W.2d 153 (1999); Barrow v. Pritchard, 235 Mich. App. 478, 480, 597 N.W.2d 853 (1999).

“Generally, for collateral estoppel to apply three elements must be satisfied: (1) a question of fact essential to the judgment must have been actually litigated and determined by a valid and final judgment; (2) the same parties must have had a full and fair opportunity to litigate the issue; and (3) there must be mutuality of estoppel.” Monat v. State Farm Ins. Co., 469 Mich. 679, 682-684, 677 N.W.2d 843 (2004) (quotation marks, citation, and brackets omitted).7 “Mutuality of estoppel requires that in order for a party to estop an adversary from relitigating an issue that party must have been a party, or in privy to a party, in the previous action. In other words, the estoppel is mutual if the one taking advantage of the earlier adjudication would have been bound by it, had it gone against him.” Id. at 684-685, 677 N.W.2d 843 (quotation marks, citations, and brackets omitted).

“Crossover estoppel, which involves the preclusion of an issue in a civil proceeding after a criminal proceeding and vice versa, is permissible.” Barrow v. Pritchard, 235 Mich. App. 478, 481, 597 N.W.2d 853 (1999). However, “there has never been anything close to a ringing endorsement of the concept by any Michigan court. Instead, the Supreme Court has cautioned against its use.” People v. Ali, 328 Mich. App. 538, 542, 938 N.W.2d 783 (2019) (emphasis omitted).

In In re Application of Indiana Mich. Power Co. to Increase Rates, 329 Mich. App. 397, 408, 942 N.W.2d 639 (2019), the Court stated that “[a] question has not been actually litigated until put into issue by the pleadings, submitted to the trier of fact for a determination, and thereafter determined.” (Quotation marks and citation omitted.)

As noted, the Schoolcraft County Prosecutor stated that, under the terms of the plea agreement, he was only seeking a suspended sentence and fine and was not seeking restoration. The prosecutor said that the building of the road

shouldn't have been done [the] way it was, but I understand why it was done․ If the [Department of Environmental Quality], who I've spoken with, wishes to get restoration ․, they have options through the Attorney General's office, through the Court of Civil Claims, and stuff in Lansing, and or [sic] the option of filing here. But that's up to them. But from my perspective, I don't think that's the appropriate direction to proceed on this case․

The issue of restoration of the wetlands was never subject to a determination by the district court because the prosecutor was not seeking restoration. Accordingly, under In re Application of Indiana Mich. Power Co., 329 Mich. App. at 408, 942 N.W.2d 639, defendants’ argument about collateral estoppel is not persuasive.8

As for res judicata, this doctrine

is employed to prevent multiple suits litigating the same cause of action. The doctrine bars a second, subsequent action when (1) the prior action was decided on the merits, (2) both actions involve the same parties or their privies, and (3) the matter in the second case was, or could have been, resolved in the first. This Court has taken a broad approach to the doctrine of res judicata, holding that it bars not only claims already litigated, but also every claim arising from the same transaction that the parties, exercising reasonable diligence, could have raised but did not. [Adair v. State, 470 Mich. 105, 121, 680 N.W.2d 386 (2004) (citation omitted).]

In general, “[t]o be in privity is to be so identified in interest with another party that the first litigant represents the same legal right that the later litigant is trying to assert.” Id. at 122, 680 N.W.2d 386. “The outer limit of the doctrine traditionally requires both a ‘substantial identity of interests’ and a ‘working functional relationship’ in which the interests of the nonparty are presented and protected by the party in the litigation.” Id. (citations omitted).9 Defendants contend that plaintiff and the Schoolcraft County Prosecutor were either the same parties or were in privity with one another.

In Baraga Co. v. State Tax Comm., 466 Mich. 264, 266-267, 645 N.W.2d 13 (2002), two townships entered into a consent judgment regarding a tax issue. Later, the State Tax Commission (STC) determined that certain tax exemptions allowed by way of the consent judgment were not, in fact, permissible, and litigation ensued. Id. at 268, 645 N.W.2d 13. The Court of Appeals concluded “that defendant [i.e., the STC] was in privity with the local units of government in regard to property tax appeals before the tribunal and, as such, the doctrine of res judicata applied to bind defendant to the terms of consent judgments entered by the Tax Tribunal in matters where defendant was not a party.” Id.

The Michigan Supreme Court, addressing the issue of res judicata, stated, “Courts have ․ generally found that no privity exists between state and federal governments, between the governments of different states, or between state and local governments.” Id. at 270, 645 N.W.2d 13 (quotation marks and citation omitted). The Court stated that “there may be specific circumstances under which the state may be bound by a judgment to which a subordinate political division was a party and the state was not, such as when the subordinate political subdivision is found to have been acting as a trustee for the state. Such circumstances are not present here.” Id. at 270-271, 645 N.W.2d 13. The Court indicated that the general definition of privity applicable to private parties does not apply to state subdivisions. See id. The Court went on to state:

[W]e fail to see, even using the definition of privity [for private parties] applied by the Court of Appeals, how the parties could have a “substantial identity of interests” and represent the same legal right when defendant is empowered to intervene if it concludes that municipalities have failed to place taxable property on the tax rolls and defendant is specifically charged with exercising general supervision over local assessors. [Id. at 272, 645 N.W.2d 13.]

It also stated:

Further, we reject the Court of Appeals reasoning that this is all somewhat academic because “[t]he townships secured that interest [the interest in proper payment of taxes] when they negotiated to have the KBIC make payments in lieu of the taxes that normally would have been assessed.” Whether the taxes effectively got paid is important, of course, but it is not to this alone that the statute is directed․ [D]efendant is charged with ensuring that all taxable properties are placed on the assessment rolls. Plaintiffs and defendant cannot be representing the same legal right or have a substantial identity of interests if the townships purposefully did not place taxable properties on the assessment rolls, an action that defendant is required to ensure. [Id. at 273, 645 N.W.2d 13 (citation omitted; first and second alterations in original).]

We find that Baraga is controlling in the present case. The most significant fact is that the Schoolcraft County Prosecutor was not acting as a trustee for plaintiff. Indeed, the prosecutor, as noted, explicitly stated that plaintiff could seek restoration of the wetland in a separate proceeding. If the prosecutor had been acting as plaintiff's trustee in setting forth the plea agreement, he would not have made this statement.

Moreover, MCL 324.30315(1) states, “If, on the basis of information available to the department, the department finds that a person is in violation of this part ․, 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).” (Emphasis added.) Again, MCL 324.30304 prohibits the placing of fill material in a wetland and prohibits dredging in a wetland. Plaintiff was required to take action to protect the wetland. This is further support for the finding that, under Baraga, plaintiff and the Schoolcraft County Prosecutor were not in privity for purposes of res judicata. The interests of plaintiff and the Schoolcraft County Prosecutor were not the same because plaintiff is specifically charged with protecting the environment and must take action if evidence of environmental damage is apparent, whereas the transcript of the plea proceeding makes clear that the prosecutor was more concerned with looking at Gary's subjective motivations in building the road.

Defendants contend that privity existed here under People v. Gates, 434 Mich. 146, 452 N.W.2d 627 (1990), overruled in part on other grounds by Monat, 469 Mich. 679, 677 N.W.2d 843 (2004). In Gates, which involved whether a finding of “no jurisdiction” in a child-protective proceeding applied in a criminal prosecution,10 the Court stated:

Although the named-party plaintiff in the instant case is the People of the State of Michigan, in practical terms the party against whom collateral estoppel is asserted is the Jackson County Prosecutor, who also represented the Department of Social Services in the probate court proceeding. Defendant argues that even though the Department of Social Services was the nominal party in the earlier proceeding, both the department and the prosecutor's office are creatures of the state and thus should be considered to be the same party. We agree. A functional analysis of the role of the prosecutor in both proceedings is appropriate in this case, and leads us to conclude that privity is sufficient to satisfy the “same party” requirement. [Id. at 156, 452 N.W.2d 627.]

We conclude that Gates is distinguishable because (1) Baraga, setting forth the test for privity between state and local governments, was issued after Gates and (2) the present case is different from Gates in that in Gates, the county prosecutor was the attorney in both cases. As discussed above, in the present circumstances, the Schoolcraft County Prosecutor had different aims than plaintiff and was not involved in the present lawsuit.

Defendants cite MCL 324.1705(3) to argue that Michigan has a public policy to avoid multiple actions for a violation of environmental laws. MCL 324.1705 states:

(1) If administrative, licensing, or other proceedings and judicial review of such proceedings are available by law, the agency or the court may permit the attorney general or any other person to intervene as a party on the filing of a pleading asserting that the proceeding or action for judicial review involves conduct that has, or is likely to have, the effect of polluting, impairing, or destroying the air, water, or other natural resources or the public trust in these resources.

(2) In administrative, licensing, or other proceedings, and in any judicial review of such a proceeding, the alleged pollution, impairment, or destruction of the air, water, or other natural resources, or the public trust in these resources, shall be determined, and conduct shall not be authorized or approved that has or is likely to have such an effect if there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety, and welfare.

(3) The doctrines of collateral estoppel and res judicata may be applied by the court to prevent multiplicity of suits.

It seems clear that Subsection (3) is designed to prevent a multiplicity of lawsuits in light of the broad language of Subsection (1). At any rate, even assuming, without deciding, that MCL 324.1705(3) applies to a violation of Part 303, all this subsection states is that collateral estoppel or res judicata “may be applied[.]” There may be some actions during which various plaintiffs have such a sharing of interests that the doctrines are, indeed, applicable. What the lower court did was analyze whether collateral estoppel or res judicata was applicable under the specific circumstances of the present case. Its finding that neither doctrine applied was not, as discussed, erroneous.


Defendants argue that the trial court erred by finding that Tonya “permitted” Gary to build the road within the meaning of MCL 324.30304.

“Findings of fact by the trial court may not be set aside unless clearly erroneous. A finding of fact is not clearly erroneous unless there is no evidence to support it or the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been committed.” Townsend v. Brown Corp. of Ionia, Inc., 206 Mich. App. 257, 263, 521 N.W.2d 16 (1994) (citations omitted). To the extent this issue involves statutory construction, review is de novo. Guardian Environmental Servs., Inc. v. Bureau of Construction Codes & Fire Safety, Dep't of Labor & Economic Growth, 279 Mich. App. 1, 5, 755 N.W.2d 556 (2008).

Once again, MCL 324.30304 states, in part:

Except as otherwise provided in this part or by a permit issued by the department under this part and pursuant to part 13, 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.

The trial court, in its findings after the bench trial, stated, “Having observed the witness testimony and assessed the credibility of both Defendants, the Court finds that Mrs. Tonya Sancrant permitted [Gary] to carry out acts prohibited under the NREPA. This is sufficient to subject her to liability under MCL 324.30304(a) and (b).”

Defendants contend that to “permit” something must be construed to mean assist or otherwise take an active role. However, this Court “accord[s] to every word or phrase of a statute its plain and ordinary meaning, unless a term has a special, technical meaning or is defined in the statute. In ascertaining the plain and ordinary meaning of undefined statutory terms, we may rely on dictionary definitions.” Guardian Environmental Servs., 279 Mich. App. at 6-7, 755 N.W.2d 556 (citations omitted).11 “Permit” is not defined in the statute, and there is no indication that it has a special, technical meaning. Merriam-Webster's Collegiate Dictionary (11th ed.) defines “permit,” in part, as “to consent to expressly or formally,” “to give leave,” or “to make possible[.]”

Defendants contend that under People v. Tenerowicz, 266 Mich. 276, 282, 253 N.W. 296 (1934), and People v. O'Hara, 278 Mich. 281, 301, 270 N.W. 298 (1936), “permit” must be interpreted as requiring affirmative action. The former case involved interpreting the words in an indictment in a criminal case involving the maintenance of “houses of ill fame.” Tenerowicz, 266 Mich. at 282, 253 N.W. 296. The Court was concerned with whether “the criminality of the acts contemplated by the conspirators [was] clear” in a criminal-conspiracy indictment using the word “permit.” Id. In O'Hara, the Court, relying on Tenerowicz, was again concerned with criminal scienter. O'Hara, 278 Mich. at 301, 270 N.W. 298. The trial court in the present case concluded that these criminal cases were inapposite in this civil strict-liability case. We agree that because the present case was a civil proceeding involving a strict-liability statute, the cases cited by defendants provide no basis for interpreting the word “permit” differently from its ordinary dictionary definition. At any rate, we note that in O'Hara, the Court interpreted “permit” as meaning “assist” or “enable.” Id. at 301, 270 N.W. 298. “Enable” is quite similar to the dictionary definition, noted above, of “make possible.”

Defendants contend that plaintiff presented insufficient evidence to demonstrate Tonya's liability. A review of pertinent evidence, however, fails to show clear error in the trial court's findings.

A friend of Gary's, Kurt Zettel, testified about loaning a miniexcavator and a bulldozer to Gary because Gary was working on a road. Zettel testified, “I told him when he told me he was going to build a road, I said, [i]t would be cheaper to bake your neighbors a pie” to try to make peace with them. Gary had told Zettel that he built the road to get the neighbors to stop using the easement road. Tonya testified that she was “leery” of the neighbors passing by close to the cabin on the easement road because it made her feel unsafe.

Gary stated that what led him to buy, from a timber company, the land on which the new road was situated 12 was the need to have a new road to eliminate problems with the easement road. He and Tonya bought this property; it was owned jointly by them, and Tonya stated that defendants had joint bank accounts.

As early as July 2010, Gary knew that he was going to be needing equipment, such as an excavator, to build the road because he was in the planning stages of buying the property from the timber company. Zettel testified about loaning Gary equipment in exchange for work that Gary did on Zettel's truck. An invoice demonstrates that Gary's business did some work for Zettel, and it states, “(No charge) Exchange for use of equipment—U.P. Cabin.” Zettel's signature on the invoice is dated July 23, 2010, and Zettel stated in his testimony that instead of paying for the work performed on his truck, he was going to loan equipment to Gary “over the next year or so.” Zettel stated that Gary borrowed Zettel's miniexcavator “probably [in] 2011” and “said he was working on a road up there.” Tonya admitted writing the invoice. Although she claimed that Gary told her to write it because he was busy and that she did not really understand it, the trial court's opinion makes clear that it did not find credible any allegations that Tonya had no knowledge of the building of the road. “This Court affords great deference to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it.” Lumley v. Bd. of Regents for Univ. of Mich., 215 Mich. App. 125, 135, 544 N.W.2d 692 (1996).

All this evidence supports a finding that Tonya gave leave to Gary for the building of the road and made possible Gary's building of the road on their jointly owned property. Indeed, the evidence supported that defendants bought the property jointly to attempt to address problems with their neighbors. There is no basis for a definite and firm conclusion that the trial court made a mistake in its findings. Townsend, 206 Mich. App. at 263, 521 N.W.2d 16.

Defendants contend that the theory of Tonya's having permitted Gary to build the road in the wetland was not alleged in the complaint. However, defendants set forth no authorities to support their argument that the complaint was inadequate. As stated in Wilson v. Taylor, 457 Mich. 232, 243, 577 N.W.2d 100 (1998), “[A] mere statement without authority is insufficient to bring an issue before this Court. It is not sufficient for a party simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position.” (Citation and quotation marks omitted.) At any rate, the complaint stated that “[d]efendants dredged and placed fill material in a regulated wetland on the [p]roperty without a permit or otherwise allowed by Part 303 of NREPA, in violation of MCL 324.30304.” Because the complaint was addressed to both defendants, we conclude that the complaint was adequate. In other words, plaintiff was alleging that together, by way of Gary's physical work and Tonya's permitting Gary to do that work, defendants, as a couple, “dredged and placed fill material in a regulated wetland” contrary to MCL 324.30304. MCR 2.111(B)(1) states that a complaint must contain “[a] statement of the facts, without repetition, on which the pleader relies in stating the cause of action, with the specific allegations necessary reasonably to inform the adverse party of the nature of the claims the adverse party is called on to defend.” The wording and the citation of MCL 324.30304 was adequate to inform defendants of the claim against Tonya.


I concur entirely with the majority's analysis and determination that this proceeding and order are not precluded by the 2018 criminal proceeding and misdemeanor judgment. I respectfully disagree with the majority that Tonya Sancrant can be found liable on this record. I would affirm as to Gary Sancrant and reverse as to Tonya.

I need not repeat most of the majority's discussion of the facts or the relevant law, because my disagreement pertains only to how the majority treats the word “permit” in the context of MCL 324.30304. As the majority observes, the word is not defined in the statute. The courts “generally give[ ] undefined terms their plain and ordinary meanings and may consult dictionary definitions in giving such meaning,” but those words must also be considered in context and “in light of the overall statutory scheme.” Honigman Miller Schwartz & Cohn LLP v. Detroit, 505 Mich. 284, 305-307, 952 N.W.2d 358 (2020). The statute unambiguously uses “permit” as a verb, which Merriam-Webster's Collegiate Dictionary (11th ed.) defines as “to let through,” “to let go,” “to consent to expressly or formally,” “to give leave,” “to make possible,” or “to give an opportunity.” I do not necessarily disagree with the majority that the criminal cases upon which defendants rely are of doubtful applicability to MCL 324.30304. I also do not disagree with the majority that permitting something does not require actively facilitating it.

However, presuming the statute imposes “strict liability,” under which an actor's mens rea is obviated, an actus reus remains mandatory. People v. Likine, 492 Mich. 367, 392-393, 823 N.W.2d 50 (2012). It is therefore not enough for Tonya to have known about the road construction and wetlands destruction, nor is it enough for Tonya to have benefited. Implicitly, it was necessary for Tonya to do something more than merely fail to intercede. Even if MCL 324.30304 imposes strict liability for a mere failure to act, the principle of strict liability is founded upon the defendant having the actual power to engage in that act. Likine, 492 Mich. at 393-398, 823 N.W.2d 50. Although Likine involved criminal penalties, I would find its reasoning equally applicable to a civil proceeding involving a nontrivial penalty. Therefore, “permitting” the placement of material in a wetland or the removal of material from a wetland under MCL 324.30304 necessarily requires, at a minimum, that the person had the realistic power to prevent that placement or removal.

Put simply, there is no evidence in this record that Tonya had the power to prevent Gary from engaging in the road-construction and wetlands- destruction project. Like the majority, I find no clear error in the trial court's findings that Tonya knew about the project and benefited from the project. Furthermore, it is inherently within the trial court's purview to evaluate the credibility of the witnesses who appeared before it. McGonegal v. McGonegal, 46 Mich. 66, 67, 8 N.W. 724 (1881); In re Loyd, 424 Mich. 514, 535, 384 N.W.2d 9 (1986). Nevertheless, “doubt about credibility is not a substitute for evidence of guilt.” People v. Wolfe, 440 Mich. 508, 519, 489 N.W.2d 748. Although the trial court correctly recognized that a husband and wife may both be found liable for violating the act, the trial court failed to note that in the case it cited, both the husband and wife engaged in filling the wetlands. DEQ v. Gomez, 318 Mich. App. 1, 6-8, 896 N.W.2d 39 (2016). There is no dispute here that Tonya was not physically involved in any of the construction or destruction, and being married to someone confers no right of control over that person.

It appears that the evidence in fact revealed that Tonya was not involved in Gary's project at all, with the sole exception of drafting an invoice for West Branch Collision at Gary's request. The invoice, proclaiming itself a “Statement & Repair Order” with a West Branch Collision letterhead, reflects that several repairs were performed on a truck owned by Kurt Zettel in exchange for “use of equipment – U.P. Cabin.” As the majority notes, this is a reference to Zettel having loaned Gary an excavator for construction of the road. As discussed, I take no issue with the trial court's credibility assessment and conclusion that Tonya understood the significance of the invoice. Nevertheless, Gary explained that West Branch Collision was his and his mother's business, not Tonya's. Tonya did some clerical work and ran errands for the shop, but also “t[ook] care of bowling and church stuff” while at the shop. There is no evidence Tonya had any control over Gary or how Gary ran his business; she was essentially just a scrivener. The invoice itself is merely a memorialization of a business decision made by Gary, and to hold otherwise would be the inverse of respondeat superior: holding a low-level employee liable for a decision made by the business owner.

Knowledge of an activity or proposal is a necessary prerequisite to being able to grant permission or to interfere with that activity or proposal. However, it is not enough. The Legislature can impose strict liability for a failure to act, but it cannot generally punish a person for failing to undertake an act, or failing to stop an act, that the person had no power to effectuate. The trial court made no finding that Tonya had any practical ability to prevent Gary's road-construction and wetlands-destruction project, nor would any such finding appear warranted on this record. Therefore, I am definitely and firmly convinced that the trial court made a mistake by imposing liability upon Tonya based on her mere knowledge of and benefit from the project. I would reverse as to Tonya.


1.   Plaintiff's name is now the Department of Environment, Great Lakes, and Energy. However, the final order being appealed contains plaintiff's prior name.

2.   Gary admitted that he wanted the neighbors to use the new road.

3.   A minor amendment of this statute enacted by way of 2018 PA 631, effective March 29, 2019, did not materially impact the language pertinent to the present appeal.

4.   The amendment of this statute enacted by way of 2018 PA 631 did not materially impact the language pertinent to the present appeal.

5.   The district court stated that, “at the end of 90 days, the [p]rosecutor will file a dismissal if there's [sic] no further violations.”

6.   Defendants are not making an argument about the fine imposed by the Ingham Circuit Court.

7.   There are some exceptions to the mutuality requirement. Id. at 687-688, 677 N.W.2d 843.

8.   In addition, as discussed infra in connection with res judicata, the parties were not the same in the criminal and civil proceedings.

9.   As discussed infra, these definitions of privity applicable to private parties are not necessarily applicable to divisions of the state.

10.   The Court ruled that the defendant's guilt or innocence was not determined in the child-protective proceeding and that collateral estoppel did not apply. Id. at 165, 452 N.W.2d 627.

11.   This rule of construction belies defendants’ argument that because the words surrounding “permit” in the statute involve affirmative action, “permit” must also involve affirmative action. The word is to be interpreted according to its plain meaning.

12.   Defendants acquired their various parcels of property over time.

Jansen, P.J.

M. J. Kelly, J., concurred with Jansen, P.J.

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