In May 2006, Hart Enterprises expanded a parking lot at its facility in Sparta, Michigan. Soon thereafter, the Michigan Department of Environmental Quality received a phone call complaining that the expanded lot was intruding into a wetland. Following inspections in 2006 and 2007, the MDEQ notified Alan Taylor, Hart Enterprises’ owner and president, that the MDEQ had concluded that his parking lot had been expanded into a wetland without a permit. The MDEQ stated that fill material had been placed “in approximately 0.25 acres of regulated wetland” and that “approximately 0.67 acres of regulated wetlands had been drained. ...” MDEQ directed Taylor to remove the parking lot, but he disagreed that there was a wetland on the property and did not comply.
Taylor was charged with violating the Wetlands Protection Part of the Natural Resources and Environmental Protection Act. One issue at trial was whether the area in question was subject to the permit requirement of the WPP/NREPA; Taylor claimed it was not a wetland, and hence not subject to the permit requirement, because it was not “contiguous to the Great Lakes or Lake St. Clair, an inland lake or pond, or a river or stream.” MCL 324.30301(p)(i). At issue was the definition of “contiguous”; the prosecution maintained that, under an MDEQ regulation, Rule 281.921(1)(b)(iii), a wetland is “contiguous” if it “is partially or entirely located within 500 feet of the ordinary high watermark of an inland lake or pond or a river or stream,” unless there has been a pre-land-use determination to the contrary by the MDEQ obtained by and at the expense of the affected property owner, which had not been done in Taylor’s case. A drain ran within 500 feet of the area in question, so, the prosecutor argued, the wetland was “contiguous” to a body of water. Taylor contended that there was no evidence the two were connected.
The trial judge instructed the jury to use the definition of “contiguous” in Rule 281.921(1)(b)(iii), and also ruled that Taylor could not challenge the presumption in the rule that a wetland is connected to any body of water within 500 feet. Taylor could challenge that presumption only in a pre-trial petition to the MDEQ, not in the lawsuit, the judge held. The jury convicted Taylor of depositing or permitting the placing of fill material in a wetland, MCL 324.30304(a), and constructing, operating, or maintaining any use or development in a wetland, MCL 324.30304(c), both of which are violations of the WPP/NREPA. He was ordered to pay $8,500 in fines and costs.
Taylor appealed to the circuit court, which affirmed his convictions, then to the Court of Appeals, which denied his application for lack of merit in the grounds presented. When Taylor appealed to the Supreme Court, the Court, in lieu of granting leave to appeal, directed the Court of Appeals to consider the case.
In an unpublished per curiam opinion, the Court of Appeals upheld Taylor’s convictions.
Taylor argued that Rule 281.921(1)(b)(iii) amounted to an unconstitutional delegation of legislative authority and that the rule’s definition of “contiguous” is incompatible with the WPP/NREPA, and with the ordinary meaning of “contiguous.” He also argued that the rule creates an unconstitutional presumption of contiguity that he was not allowed to rebut. The Court of Appeals acknowledged, “Defendant is correct that conclusive presumptions conflict with the overriding presumption of innocence and that they invade the fact-finding function of the jury.” But, as Hart Enterprises’ agent, Taylor “could have petitioned the MDEQ for a determination under R 281.921(1)(b)(iii).”
The appellate court also rejected Taylor’s argument that the trial court erred in instructing the jury to use the MDEQ rule’s definition of contiguity. “Defendant’s argument that the prosecutor was required to prove contiguity under the customary definition of the word is meritless where that term has been defined by Rule 281.921(1)(b). … the instruction properly tracked ‘contiguous’ as defined, and given a unique legal meaning, in R 281.921.”
The Court of Appeals also rejected Taylor’s argument that the trial court’s interpretations of the WPP/NREPA, and the rule, amounted to an unforeseeable change in the law that should bar retrospective application. “Defendant also argues that even if correct, none of the trial court’s interpretations of the W PP/NREPA and R 281.921(1)(b) can be applied here because only civil liability can be imposed based on a first-time interpretation of a statute or an administrative rule. However, People v Doyle, 451 Mich 93, 101, 113; 545 NW2d 627 (1996), provides that where an unambiguous statute is interpreted by the court for the first time, there is no unforeseeable change in the law precluding retroactive application. ...”
Taylor appealed. In an order dated May 3, 2013, the Supreme Court said it would hear oral argument in the case to determine whether to grant leave to appeal or take other action. The Court directed the parties to address “whether the trial court’s jury instructions expanded the definition of ‘contiguous’ beyond the reasonable scope of MCL 324.30301(1)(m)(i) and Mich Admin Code, R 281.921(1)(b)(ii), and, if so, whether that expansion constituted an unforeseeable judicial enlargement of a criminal statute that deprived the defendant of due process.”