Formerly The Outspoken Sportsman

BY PAUL W. JACKSON / September 30, 2008

Source:  Michigan Farm News

It's just a little chunk of low property, a half-acre or less of cattails, sticky burrs and, after a five-inch rain, water.

But to Howard McCarter, his wife Amy and father-in-law Reuel Long, the little chunk of property might as well have a historical marker on it in tribute to the day the Dexter-area family fought the Michigan Department of Environmental Quality (DEQ) in court and won - without an attorney.

Possibly formed when N. Territorial Road was put in, the little property goes bone-dry every summer, said Howard, the third-generation family member to live on the four-acre parcel where Amy raises horses.

When water drains from farm fields via the private agricultural ditch dug by Donald and Nick Heller in the 1970s, it collects there, on the McCarter property, in a little depression that can easily and sensibly be defined as wet land. Nearer to Scully road, the McCarters in 2005 put in a three-foot diameter culvert designed only to allow Howard to take his tractor across the ditch without going onto the road. He covered the culvert with soil left from the ditch's last maintenance work, several years ago.

But the DEQ calls the property a stream, even after the local assistant prosecutor's argument did not convince 14A3 District Court Judge Richard E. Conlin, who said in his decision to clear Howard and Amy of criminal charges that he found "greater persuasive impact in the testimony of Donald Heller, Nick Heller and Reuel Long to the effect that the alleged stream is nothing more than an 'agricultural ditch,' which they dug many years prior."

With that definition of a stream out of play, the DEQ calls the property a "contiguous wetland," even though the Arms Creek tributary where the DEQ says McCarter's water runs is a half-mile away. The judge rejected that argument too, thus rejecting the DEQ's claim to authority over the property.

With that, the McCarters are free from a threatened multi-million-dollar fine from the DEQ, free from two misdemeanor counts of failing to get proper permits, and free from being forced to take out the culvert they placed in a ditch, remove (and haul away) topsoil, apply for permits and start the project all over again. Their two children don't have to worry anymore that their parents may lose their property and they'll all have to move in with Grandpa.

But even in victory, the McCarter's don't understand why the DEQ took them to court for improving their property when larger, damaging environmental issues are evident all around them.

"I work for the city of Ann Arbor," said Howard, the day after a five-inch rain blew in on Hurricane Ike. "They're pumping straight into the river now."

The difference is that the city has a permit. The McCarters did not.

Why no lawyer

The story began with a notice from Washtenaw County in the spring of 2006 that told the McCarters they needed a soil erosion permit for the work that was done the previous summer. So they got the permit, but were informed that they needed a DEQ permit to do the work. They applied and were denied. In February of 2007, the couple was given until June, 2007, to remove the drain or face prosecution. An environmental attorney, Howard said, advised them to take out the culvert.

"That lawyer told us we could not beat the DEQ, and told us to comply with them, spend thousands of dollars, and then ask again nicely," Howard said. "I'm convinced that, for the most part, environmental lawyers are not on our side. They're out there making trouble for people just like the DEQ."

After a letter from the DEQ demanding the culvert's removal, and after many long discussions about what to do when the Jackson District Office of the DEQ, through the local prosecutor, filed criminal charges, the McCarters and Long decided to do something they'd always believed was foolish. They decided to represent themselves.

"I've always agreed that a person who represents himself in court has a fool for a lawyer," Long said. "And we could have won with an attorney, but we'd still have lost, because Howard and Amy would have had to sell the property to pay the attorney fees. The attorneys all want to use billable hours while they get educated on the issue, and we felt the lawyer bills would have run at least $50,000. They would have spent $25,000 or more before they even went to trial. I would never advise anybody to represent themselves under normal circumstances, but when the choice you have is between paying a lawyer and letting the DEQ take control of your property, you really have no choice but to represent yourself. We were in a lose-lose situation. The only way to have a chance to win is represent yourself and hope the judge sees through what the DEQ is trying to do."

Obviously, it's difficult to discern motives of any state agency. But when Howard read the Land and Water Management Division's (LWMD) mission statement, he believed the DEQ was not being true to that mission. He cites the second sentence of the statement, which reads: "The mission of the LWMD is to promote the best use of these resources for their social and economic benefits while protecting the associated resource values, property rights, the environment, and public health and safety."

"Underline 'property rights,'" Howard said. "They didn't have any interest in protecting ours."

Part of the problem, said Mary VanderLaan, Jackson district supervisor for the LWMD, is confusion over terms.

"We have a guidance document (a 14-page manual written in 2003 from division Chief Mary Ellen Cromwell). But it does take time to understand it," she said. "In this case, we were trying to explain things in terms everyone can understand. We maintained that the property was a stream. We had several conversations with management about how the (private ag ditch) exemption (under the Clean Water Act) fits. We have no problem calling a ditch in a farmer's field a ditch because it drains ag land. But the McCarters are not engaged in ag. Also, they placed a culvert in the stream, and that's something we would not have permitted. It all goes back to whether we have jurisdiction, and the ag ditch exemption doesn't speak to a culvert."

That argument takes the McCarters back to definitions. Is their property a stream?

"Ms. VanderLaan told us that if there is rain water in it once a year, it is a stream," Long said. "This is dry all year, except in the spring, or after a weekend of heavy rain, but by her definition, every ditch is a stream. Every paved roadway is a stream. And if every ditch is a stream, there is no ag exemption under the law, and the DEQ has wiped out the statute. It makes no sense. Why would the legislature give an exemption to something that doesn't exist?"

After that conversation with VanderLaan, months passed. Letters were sent back and forth, and the McCarters sought help from the Mackinac Center for Public Policy, but it soon became clear that the case would not be solved out of court.

In January of this year, the McCarters received their summons. They were arraigned on criminal charges, and were told they faced up to $11.5 million in fines, assessed at $12,500 per day since the day the culvert went in, and a $2,500 fine each for violating wetlands. After delays from the local prosecutor, the court date was set for May 8.

The McCarters, absent an attorney, started preparing their case. They filed motions to dismiss the case and Howard, Amy said, spent most of his free time researching law. By the time the court date arrived, they were ready.

During the one-day trial, the DEQ case fell apart.

Their day in court

Environmental Quality Analyst James Sallee, who investigated the situation, was cross-examined by a nervous Amy McCarter.

"I was out of my comfort zone," she said. "And even afterward, I kept second-guessing myself, wondering if I should have asked different questions."

The McCarters called farmer Don Heller to the stand, who had earlier signed an affidavit in which he testified that the "wet area on the McCarter property is made up entirely of the terminal portion of our agricultural drainage ditch," and that all the "activities on the McCarter property were involved with maintaining our drainage ditch to support our farming operation and prevent flooding of the McCarter property."

Sallee, however, maintained that the area is a stream, and offered as evidence a single photograph which showed a ripple, which he said was evidence of stream flow.

Then, the assistant prosecutor, Patricia Reiser, brought out People's Exhibits 2 and 3, one of which the McCarters said was simply an aerial map with a blue line drawn on it from the McCarter property to the tributary of Arms Creek a half-mile west. In her closing arguments, Reiser argued that "one could think of the impact, or connection, with other waterways in terms of a dye test. If dye was placed in the wetland, it would work its way into the unnamed stream, to the Arms Creek tributary, to Arms Creek, and the Huron River. This 'thought experiment' illustrates the concern behind the laws."

Sallee, however, admitted, under Amy's and Howard's cross-examination, that a dye test was never performed, that he had not walked the length of the ditch and that, in fact, he had only inspected the property three times.

But, because he was the only expert to testify, Reiser said, his opinion trumped all others, and the DEQ had authority over the "stream" and the "wetland."

The judge, however, agreed with the McCarters, and found them not guilty of all criminal charges.

So is it all over? Maybe.

DEQ is watching

The DEQ still could bring a civil suit against the McCarters, although VanderLaan said, because of the number of civil cases from her division currently pending at the Attorney General's office, it would be a "low priority."

Reuel said the civil case is unlikely because the DEQ knows it has no case, and he believes the prosecutor and the DEQ should be embarrassed by bringing ridiculous charges against his daughter and son-in-law.

The DEQ, however, contends that such an action is good use of taxpayer money.

"We can't take everyone to court, so we have to pick and choose," VanderLaan said. "I signed off on the criminal enforcement in this case because there is a small group of people who fall off the radar, do work in their backyards, and the word gets out that if you're small potatoes, the DEQ doesn't care. Sure, the impact of (the McCarter's action) was small, but our action sends a message to small farmers that the DEQ still cares, even about the small stuff. And the message has been sent out that even though we lost, it doesn't mean we won't take someone else to court, and the next time, we may win."

That's the attitude, Long said, that needs to be corrected.

"The DEQ is stealing property," he said. "The DEQ is nothing more than domestic terrorists. What else do you call it when a government agency terrorizes a private citizen until he's at the point where the only choice he has is to spend lots of money on lawyers or give the DEQ total control of the property?"

Howard, Amy and Reuel said they're certainly proud to have defeated the DEQ, especially without an attorney, but they warn that lawsuits could happen to anyone, and call everyone to action.

"The lesson people can learn from this case it that you don't have to take it anymore," Howard said. Reuel goes further.

"We need farmers to fight this kind of thing to the point where we can lose, and get to an appeals court where a case can be won and be precedent-setting," he said. "And we need to vote politicians out who allow this to happen. If the legislature had anything at all going on (upstairs), they'd get this under control. And we need a governor who will tell the DEQ to protect the real rivers and streams of this state and get off the backs of citizens. It seems to me that with our state's economic issues, the DEQ would not have the budget to harass private citizens. So do your homework, defend yourself and fight."

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