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Statute of Limitation on State Wetland Laws and Federal Clean Water Act

Author: LegalEase Solutions 

Introduction

Our client, Renaissance Recycling, is a metal recycling facility in Michigan. In 1996, Renaissance obtained a permit to fill three acres of state regulated wetlands pursuant to MCLA 324.30301 of the Michigan Natural Resources and Environmental Protection Act. The Michigan Department of Environmental Quality (MDEQ), which implements the State Wetland Law, has alleged in a Notice of Violation sent in June 2005 that Renaissance violated the State Wetland Law by filing State regulated wetlands beyond that allowed in the underlying permit. Renaissance contends that any filling was completed not later than June of 1997. It is also their contention that the wetlands were used as part of their operations yard, and that MDEQ has visited the site several times from 1997 till June of 2005 without raising the issue of any wetland fill beyond that originally permitted

Questions Presented

  1. Can MDEQ prosecute for civil or criminal fines or penalties based upon the alleged wetland fill beyond what was originally permitted? Can they now seek injunctive relief to force removal of the fill material beyond that which was originally permitted?
  2. Can US EPA prosecute now for civil or criminal fines or penalties based upon the alleged wetland fill beyond what was originally permitted? Can they now seek injunctive relief to force removal of the fill material beyond that which was originally permitted?

Short Answers

  1. No, MDEQ cannot prosecute for civil or criminal fines or penalties for the alleged wetland fill beyond what was originally permitted and cannot seek injunctive relief to force removal of the fill material beyond that which was originally permitted because it is barred by MCL §  600.5813.
  2. US EPA may prosecute for civil or criminal fines or penalties for the alleged wetland fill beyond what was originally permitted. Injunctive relief is not subject to 28 U.S.C. § 2462 as it is an equitable remedy and an action for injunction will not be subject to the 5 year limitation. Hence US EPA may seek injunctive relief to force removal of the fill material beyond that which was originally permitted.

Discussion

STATE LAW

Renaissance obtained a permit to fill three acres of state regulated wetlands pursuant to MCLA 324.30301. All the fillings were completed not later than June, 1997. Michigan Department of Environmental Quality (MDEQ), which implements the State Wetland Law, has alleged in a Notice of Violation sent in June 2005 that Renaissance violated the State Wetland Law by filing State regulated wetlands beyond that allowed in the underlying permit. The power of MDEQ to issue such a notice flows from MCL §  324.30315.

MCL §  324.30315 reads as follows:

  • 324.30315. Violation; order requiring compliance; civil action.

Sec. 30315. (1) If, on the basis of information available to the department, the department finds that a person is in violation of this part or a condition set forth in a permit issued under section 30311 or 30312, 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).

(2) An order issued under subsection (1) shall state with reasonable specificity the nature of the violation and shall specify a time for compliance, not to exceed 30 days, which the department determines is reasonable, taking into account the seriousness of the violation and good faith efforts to comply with applicable requirements.

The Attorney General may initiate a civil action on the request by MDEQ under MCL § 324.30316.

MCL § 324.30316 reads as follows:

Sec. 30316. (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.

(3) A person who willfully or recklessly violates a condition or limitation in a permit issued by the department under this part, or a corporate officer who has knowledge of or is responsible for a violation, is guilty of a misdemeanor, punishable by a fine of not less than $2,500.00 nor more than $25,000.00 per day of violation, or by imprisonment for not more than 1 year, or both. A person who violates this section a second or subsequent time is guilty of a felony, punishable by a fine of not more than $50,000.00 for each day of violation, or by imprisonment for not more than 2 years, or both.

The power of MDEQ to initiate an action against alleged permit violators emanate from the above Sections.   There is no statute of limitations specified in the Natural Resources and Environmental Protection Act (NREPA), MCLS §   324.30301 et seq.; while MCLS §  324.30316 provides for the commencement of a civil action by the Attorney General to seek appropriate relief, including injunctive relief for permit violations, it does not state a period of limitation for bringing such actions.

The Court of Appeals in AG v. Harkins, 257 Mich. App. 564 (2003), discussed the issue of limitation in detail. In this case State Attorney General filed an action seeking an injunction to require the defendant lake-front property owner to restore wetlands and lake bottom that the State alleged he had filled or dredged in violation of a modified permit. This action was commenced eight years after the wetlands were altered. Defendant argued that MCL § 600.5813 which prescribes a 6 year limitation period bars Plaintiffs Claim. The court noted that there is no applicable statute of limitations set forth in the NREPA. While MCL 324.30316 provides for the commencement of a civil action by the Attorney General to seek appropriate relief, including injunctive relief for permit violations, it does not state a period of limitations for bringing such actions.

MCL §  600.5813 reads as follows:

Sec. 5813. All other personal actions shall be commenced within the period of 6 years after the claims accrue and not afterwards unless a different period is stated in the statutes.

The court in Harkins, supra, went on to explain a personal action and held:

Black’s Law Dictionary (6th ed) defines “personal action” as follows: “In civil law, an action in personam seeks to enforce an obligation imposed on the defendant by his contract or delict; that is, it is the contention that he is bound to transfer some dominion or to perform some service or to repair some loss.” See also 1 Am Jur 2d, Actions, §  32, p 744 (“Personal actions are those brought for the recovery of personal property, for the enforcement of a contract or to recover for its breach, or for the recovery of damages for an injury to the person or property.”)

Section 5813 applies “equally to all actions whether equitable or legal relief is sought.” MCL 600.5815.

Here, plaintiff brought a civil action against defendant, an individual who allegedly failed to comply with portions of Part 303 of the NREPA. Plaintiff’s injunctive action to require defendant to restore the wetland comes within the meaning of a “personal action” as defined in §  5813, because it seeks to “repair some loss.” Actions brought by the Attorney General on behalf of government departments are deemed personal actions. See Great Lakes Gas Transmission Co v State Treasurer, 140 Mich. App. 635, 650; 364 N.W.2d 773 (1985).

 Id at 570.

The court further held:

The Revised Judicature Act specifies that §  5813 is the general statute of limitations  applying to “all other personal actions . . . unless a different period is stated in the statutes.” This Court has held that “a civil cause of action arising from a statutory violation is subject to the six-year limitation period found in §  5813, if the statute itself does not provide a limitation period.” DiPonio Constr Co v Rosati Masonry Co, Inc.,246 Mich. App. 43, 56; 631 N.W.2d 59 (2001). There being no period of limitations expressly applicable to actions brought under the NREPA, the general limitation provisions of § 5813 apply.

 Id at 570, 571.

Accordingly the court in Harkins affirmed the trial court’s decision that the six-year period of limitations set forth in MCL 600.5813 barred plaintiff’s injunctive action to enforce the permit and restore the wetlands in question.

Having determined that a six year period of limitation would apply for any action under NREPA the court in Harkins went on to determine when the claim accrued. The court held:

The accrual provision in MCL 600.5827 provides that “the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results.” Here, plaintiff granted defendant the modified permit on March 15, 1988. Defendant completed his work on the property in 1988. Plaintiff filed the instant action on March 28, 1996. Plaintiff alleges that defendant violated the modified permit issued to him on March 15, 1988. Consequently, more than six years passed between the time the purported violation occurred in 1988 and the time the claim was filed on March 28, 1996.

We find unpersuasive plaintiff’s claim that the limitations period was tolled by defendant’s continuing wrongful acts. “The continuing-wrongful-acts doctrine states that ‘where a defendant’s wrongful acts are of a continuing nature, the period of limitation will not run until the wrong is abated; therefore, a separate cause of action can accrue each day that defendant’s tortious conduct continues.'” Jackson Co Hog Producers v Consumers Power Co, 234 Mich. App. 72, 81; 592 N.W.2d 112 (1999), quoting Horvath v Delida, 213 Mich. App. 620, 626; 540 N.W.2d 760 (1995). However, “a continuing wrong is established by continual tortious acts, not by continual harmful effects from an original, completed act.” Horvath, supra at 627 (emphasis in original). Defendant is alleged to have committed a wrongful act in 1988, when he developed his property in a way that plaintiff now claims violated the modified  permit. Once defendant developed the property in question, his alleged wrongful conduct ceased. The effects of the work defendant performed on the property in 1988 are the basis of this 1996 suit. These effects resulted from a noncontinuous act, the property development, which occurred in 1988. Consequently, we conclude that defendant’s actions simply do not fall within the ambit of the continuing wrongful acts doctrine and plaintiff’s reliance on this doctrine is misplaced.

Id at 572, 573.

Renaissance obtained the permit in the year 1996 to fill three acres of state regulated wetland. The work was completed not later than June, 1997. The alleged wrongful conduct ceased on June, 1997. The effects of the work Renaissance performed on the property in 1997 are the basis for this cause of action. Applying the precedent established in Harkins, supra, the Limitation period would commence in June 1997 and would end at June 2003. Any subsequent action by MDEQ for civil fines/penalties and for injunctive relief would be specifically barred by MCL §  600.5813.

FEDERAL LAW

 33 USCS § 1344 provides for Permits for dredged or fill material. Apart from general permits, it also includes provisions for permitting State administration, determination of State’s authority to issue permits under State program, withdrawal of approval of the State and so on. 33 USCS § 1319 provides for enforcement. This section provides for imposition of fines and penalties and injunctive relief. The power of the US Environmental Protection Agency (EPA) to commence actions against alleged violators emanates from the above provisions.

There is no statute of limitations in the Clean Water Act (CWA). CWA does not establish a limitation period within which EPA must commence a civil action. Hence the general statute of limitation governs any such action.

The statute of limitations provision set forth at 28 U.S.C. 2462 applies only to actions in which the government is seeking civil fines, penalties or forfeiture. It requires the government to bring such actions within five years after the cause of action has accrued. This statute states in pertinent part:

‘Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued if, within the same period, the offender or the property is found within the United States in order that proper service may be made thereon.’  28 U.S.C. 2462.

It is generally accepted by most federal circuit courts that the 5 year period of limitation will bar any action for initiating civil actions and for the imposition of fines and penalties. But this does not bar EPA’s claims for injunctive relief to require restoration or mitigation of the filled wetlands.

United States v. Telluride Co., 146 F.3d 1241 (10th Cir., 1998), is a leading case in this area and most of the other circuits, have followed this case. The Government sought civil monetary penalties and injunctive relief under 33 U.S.C. § 1319 for the Corporation’s illegal filling of approximately forty-five acres of wetlands.  In its request for injunctive relief, the Government sought to enjoin the Corporation from discharging additional material, and to require the Corporation to restore damaged wetlands to their prior condition or create new wetlands to replace those that could not be restored. The Corporation filed a motion for partial summary judgment contending these claims were barred by the five-year statute of limitations in 28 U.S.C. § 2462.  The Government conceded § 2462 applied to its claim for civil penalties, but argued the statute did not bar its claims for injunctive relief. The district court disagreed, applying the concurrent remedy rule to hold § 2462 barred the Government’s claims for injunctive relief. The court interpreted the concurrent remedy rule as providing when legal and equitable relief are available concurrently, and a statute of limitations bars the concurrent legal remedy, the court must withhold the equitable relief. Consequently, because § 2462 barred the Government’s claims for legal relief, civil monetary penalties, the court held § 2462 barred its claim for injunctive relief and granted the Corporation’s motion for partial summary judgment, dismissing all of the Government’s claims for relief for wetlands illegally filled. On Appeal the Court reversed the District Courts Judgment and held:

We interpret §  2462 narrowly because “an action on behalf of the United States in its governmental capacity … is subject to no time limitation, in the absence of congressional enactment clearly imposing it.” E.I. DuPont de Nemours & Co. v. Davis, 264 U.S. 456, 462, 68 L. Ed. 788, 44 S. Ct. 364 (1924). In addition, “statutes of limitation sought to be applied to bar rights of the government, must receive a strict construction in favor of the government.” Id.

Id at 1244,1245.

The Corporation made claims as to why the restorative injunction in this case is a civil fine, penalty, or forfeiture, pecuniary or otherwise, barred by § 2462. The Government also maintained that the plain language of §  2462 does not apply to claims for equitable relief. The Corporation contended that the remedial action of injunction is a penalty and thus would fall under the ambit of § 2462.  The Court disagreed stating:

We agree that actions for equitable relief typically are not actions for penalties or fines. See Hartford-Empire Co. v. United States, 323 U.S. 386, 435, 89 L. Ed. 322, 65 S. Ct. 373 (1945) (“relief in equity is remedial, not penal”). We also do not ignore that, historically, “statutes of limitation are not controlling measures of equitable relief.” Holmberg v. Armbrecht, 327 U.S. 392, 396, 90 L. Ed. 743, 66 S. Ct. 582 (1946).

***

Consistent with our definition, the restorative injunction in this case is not a penalty because it seeks to restore only the wetlands damaged by Telco’s acts to the status quo or to create new wetlands for those that cannot be restored. The injunction does not seek compensation unrelated to or in excess of the damages caused by Telco’s acts.

Id at  1245-1246.

The Government disputed the district court’s application of the concurrent remedy rule to bar its equitable claims and concluded that the concurrent remedy rule was not applicable:

In its order, the district court relied on United States v. Windward Properties, Inc., 821 F. Supp. 690, 693 (N.D. Ga. 1993), which applied the concurrent remedy rule in a similar context, holding § 2462 barred the Government’s claims for legal and equitable relief. However, the Windward decision was expressly abrogated by the Eleventh Circuit in United States v. Banks, 115 F.3d 916, 919 (11th Cir. 1997), cert. denied, 139 L. Ed. 2d 752, 118 S. Ct. 852 (1998). In a case that involved the identical issue, the Banks Court rejected the concurrent remedy rule’s application to the Government when it seeks equitable relief in its enforcement capacity under the traditional principles of construction discussed above. Id. Specifically, the Banks Court refused to apply the concurrent remedy rule based on the principles that a suit by the United States in its governmental capacity is not subject to a time limitation unless Congress explicitly imposes one and “‘any statute of limitations sought to be applied against the United States “must receive a strict construction in favor of the Government.”‘” Id. (quoting United States v. Alvarado, 5 F.3d 1425, 1428 (11th Cir. 1993)). For the same reasons applied in Banks, we conclude the concurrent remedy rule does not bar the Government’s claims for equitable relief.

Id at 1248, 1249.

In United States V American Elec. Power Serv.Corp., 137 F. Supp. 2d 1060 (S.D.Ohio 2001), the Citizens brought an action under Section 304(a)(3) of the Clean Air Act [“CAA”], 42 U.S.C. §  7604(a)(3), seeking redress for the Defendants’ alleged violations of the Prevention of Significant Deterioration [“PSD”] and New Source Review [“NSR”] provisions of the Act. The Citizens alleged the following: that the Defendants have violated the CAA by making modifications to their plants without obtaining pre-construction permits; that they have failed to install the best available control technology  [“BACT”] or to comply with the lowest achievable emissions rate [“LAER”] and obtain necessary pollutant offsets; and that their plants emit pollutants in violation of applicable BACT and LAER standards.. The Citizens sought injunctive relief, civil penalties, attorneys’ fees and costs under the Act. The Defendants contended that the claim for injunctive relief is barred by 28 U.S.C. § 2462. The Court held:

The statute, by its terms, applies only to suits for civil penalties. While the doctrine of laches may prevent injunctive relief, statutes of limitations historically do not control measures of equitable relief. See Holmberg v. Armbrecht, 327 U.S. 392, 396, 90 L. Ed. 743, 66 S. Ct. 582 (1946). This Court concludes that the statute of limitations does not bar the claim.

The Defendants also argue that the Citizens’ request for injunctive relief amounts to a penalty for purposes of § 2462 and thus, must be limited. The Defendants assert that “an order requiring the Defendants to install billions of dollars worth of controls” is “purely punitive relief.” (Defendants’ Motion to Dismiss EPA and Intervenor Complaints at 27). This Court disagrees with such a blanket assertion. As stated by the Tenth Circuit in United States v. Telluride, 146 F.3d 1241 (10th Cir. 1998), this Court is not convinced that the request for injunctive relief to remedy past conduct changes the remedial nature of the relief. Clearly, the nature and/or extent of injunctive relief may well change because of the lapse of time. Further, relief may be dependent upon whether a particular modified source is still being operated. Such issues, however, must await resolution on the merits. The Court cannot conclude, at this juncture, that all injunctive relief is necessarily punitive in nature. To the extent the Defendants seek such a determination, the motion is not well-taken.

Id at 1067, 1068.

Accordingly, it appears that an action brought by US EPA for civil fines/penalties will be subject to the 5 year limitation period as prescribed by 28 USC § 2462, but the power of the US EPA to bring about action seeking injunctive relief is an equitable action and will not be subject to the statute of limitations.

Having determined the applicability of 28 USC § 2462 to injunctions and civil fines/penalties, the next step would be to determine when the cause of action arises for purposes of tolling the limitation period. The federal circuits are divided in their opinion with regard to this.  Some courts have held that the violation is continuing in nature because of adverse impacts from an un-removed fill and also because of subsequent discovery by EPA whereas others have been more reluctant to expand the breadth of this doctrine to the point of vitiating this underlying limitation period.

In United States v. Reaves, 923 F. Supp. 1530 (M.D. Fla 1996), The Defendant excavated material from a creek on his property to create a canal and discharged the material as fill over approximately 17 acres of the creek to create fast land, and the Plaintiff sought both injunctive relief and civil penalties against him for the unpermitted discharge of dredged or fill materials into wetlands on the site, in violation of the CWA and the RHA. The Defendant filed a motion for summary judgment, contending that the action was not brought within five years of the alleged violation as required by 28 U.S.C.S. § 2462, and thus was time-barred. The Plaintiff contended that the action was brought within five years of the violation under the correct interpretation of § 2462. The Government contended that the Defendant’s unlawful actions constitute a continuing violation of the CWA, as long as the illegal fill remains in place, therefore, the limitations period under section 2462 has not yet begun to run. Secondly, Plaintiff argued that, even if the claim is deemed to have accrued for purposes of section 2462, the correct date of claim accrual is the date when the Government first knew, or had reason to know, that illegal fill activity had occurred. The Government contended the date they first learned of the violation was on December 6, 1989, the date a Corps biologist first observed the results of the fill activity and determined that it had been conducted in violation of the CWA and the RHA and hence complaint was filed within the five-year period. Finally, the Government contended its claim for injunctive relief is a separate claim for relief that is not subject to the statute of limitations in section 2462. The Government’s position was that even if a claim for civil penalties is barred, the United States is entitled under the CWA and the RHA to full restoration of the navigable waters unlawfully filled by Reaves.  The Court held that as each day the violations continues that it constitutes an additional day of violation, and as such is a continuous violation to which the statute of limitations in 28 U.S.C. § 2462 has not yet begun to run. Id. at 1533-1534.  The court held:

Similarly, the Court finds in this case that Defendant’s unpermitted discharge of dredged or fill materials into wetlands on the site is a continuing violation for as long as the fill remains. Accordingly, the five-year statute of limitations under 28 U.S.C. §  2462 has not yet begun to run on the Government’s claims either for civil penalties or injunctive relief. This finding is consistent with the remedial purposes of the CWA and RHA.

Id. at 1534.

 The court denied the landowner’s motion, concluding that the violation was a continuing one for as long as the fill remained in the creek, and thus the statute of limitations had not yet begun to run on the government’s claims. Id.

However the D.C. Circuit took the opposite position.  In  3M Co. v. Browner, 17 F.3d 1453 (D.C. Cir. 1994), The Environmental Protection Agency (EPA) assessed civil penalties under § 16(a)(2)(A) of the Toxic Substances Control Act (TSCA), 15 U.S.C.S. § 2615(a)(2)(A), for petitioner’s several violations of the TSCA, 15 U.S.C.S. §§ 2601-2629 in the eight years preceding the complaint. Petitioner argued that 28 U.S.C.S. § 2462 barred proceedings to impose penalties for petitioner’s violations five years prior to the EPA’s complaint. An EPA Administrative Law Judge and the EPA Chief Judicial Officer ruled that § 2462 did not apply to TSCA cases. On appeal, the court held that § 2642 did apply to TSCA cases, and that the claims accrued at the time of violation and not when discovered by EPA.  Id. at 1462.  The court analyzed the legislative history and the meaning of the word “accrued” contained in §2462 and concluded that Congress could not have intended the word to incorporate any discovery of violation, rather that a claim accrues at the moment a violation occurs.  Id.  The court concluded:

As the Fifth Circuit put it in Core, a “review of [cases under §  2462] clearly demonstrates that the date of the underlying violation has been accepted without question as the date when the claim first accrued, and, therefore, as the date on which the statute began to run.” 759 F.2d at 482.

Id at 1462.

The court concluded that EPA could not assess civil penalties against petitioner for any violations of TSCA allegedly committed more than five years before EPA commenced its proceeding. The case was remanded for further proceedings consistent with the court’s opinion.

Similarly in United States SEC v. Harden, 2006 U.S. Dist. LEXIS 2681 (W.D. Mich 2006), the Plaintiff Securities and Exchange Commission filed a Motion to Strike Defendants Defense of Statute of Limitations.  The Court held:

First, as explained by the Ninth Circuit in S.E.C. v. Rind, 991 F.2d 1486, 1490 (9th Cir. 1993) (citing cases), the Commission itself (with one exception) is not subject to either limitation periods or equitable laches which would limit its rights to sue to recover monies on behalf of investors damaged by securities fraud.  Notwithstanding, there is one exception to this rule which is created by a general statute of repose which is specifically applicable to civil penalties sought by the federal government-28 U.S.C. § 2462. This statute, in light of its wording, has been applied by federal courts to limit actions brought by federal agencies, including the S.E.C., to assess monetary penalties.

Id. at 4 (Emphasis Added). Importantly the court also stated that §2462 “is not subject to equitable extensions, such as due to delayed discovery, fraudulent concealment or the interest of “public policy” nor “subject to extension on the ground that multiple violations constitute a single “continuing violation.”  Id. (Emphasis Added).   The Court clearly held in the above case that for the recovery of monetary penalties by a federal agency, the statute of limitations in 28 U.S.C. § 2462 would apply.

As discussed in 3M Co, 28 U.S.C. § 2462 is not subject to equitable extensions due to delayed recovery, interest of public policy nor to multiple violations constitute a single continuing violation.  Thus courts have generally strictly construed 28 U.S.C. § 2462 and held that the cause of action would be deemed to accrue when the actual violation occurs and not when it is discovered. The alleged filling of wetlands by Renaissance ended in June 1997. The cause of action would have been deemed to accrue from that time onwards. Pursuant to 28 U.S.C. § 2462, the period of limitation ends by June 2002. The US EPA may be barred from taking the position that the violation was continuous.

In the case at hand, the area in contention has been continuously used as part of the operations yard by Renaissance. MDEQ has visited the site several times from 1997 until June of 2005 without raising the issue of any wetland fills beyond that originally permitted. This may give rise to a defense of equitable laches.

In United States V. Hobbs, 736 F. Supp. 1406 (E.D. Va 1990), action was brought by the United States seeking injunctive relief and the imposition of civil penalties against the defendants for placing fill materials into waters of the United States without first seeking a permit from the United States Army Corps of Engineers.  The Court first discussed as to when the cause of action accrues for monetary penalties and held:

Title 28 U.S.C. §  2462 requires commencement of suit for civil penalties within five years from the date when the claim first accrued.  Defendants maintain that the claims against them first accrued when they actually physically ditched and drained their property. Defendants’ Brief at 4.  However, it has been held that accrual, for statute of limitations purposes under the CWA, occurs not “when the violations actually occurred, but when the reports that document[] those violations [are] filed with the E.P.A.”

Id at 1409,1410.

 The Court further discussed the availability of injunctive relief to the Plaintiff and held generally that the limitations period set forth in §2462 applies only to suits for civil penalties not for suits in equity.  Id. at 1410.  The Court stated that while the statute of limitations does not apply to suits in equity, the doctrine of laches does apply:

Instead, the doctrine of laches governs the availability of equitable relief. Statutes of limitations serve the purpose of protecting litigants against claims made stale by the passage of time. Laches, on the other hand, has as its chief concern not the issue of time but the inequity of allowing a claim to be enforced.  Laches will justify dismissal of a suit in equity if a plaintiff has not diligently pursued the case and “where the plaintiff[‘s] ‘lack of diligence is wholly unexcused; and both the nature of the claim and the situation of the parties was such as to call for diligence.'”

 Id at 1410.  In Hobbs, supra, the court ultimately concluded that laches did not prevent plaintiff’s claim for injunctive relief as nothing in the record showed any lack of diligence by the plaintiff in commencing of the action.  Id.  This differs starkly from the facts in the case at hand.  The government visited the wetlands a number of times and failed to note any non-adherence on those visits. The government had a duty to report overfill on the visits, and its silence in doing so shows lack of diligence.  Thus the doctrine of laches may be made applicable here. The nature of the claim and the situation of the parties were such as to call for diligence. Having visited the site a number of times the government was aware of the alleged extra fill and could have initiated prosecution at that point of time. Failure to do so would clearly show the lack of diligence on part of the government in initiating action when the situation was within their knowledge and any subsequent action after the lapse of 7 years if allowed would  arguably be highly inequitable.

Conclusion

MDEQ cannot prosecute for civil or criminal fines or penalties for the alleged wetland fill beyond what was originally permitted and cannot seek injunctive relief to force removal of the fill material beyond that which was originally permitted because it is specifically barred by MCL §  600.5813.

US EPA may prosecute for civil fines and penalties and injunctive relief. Although 28 USC § 2462 is the applicable statute of limitation for purposes of civil fines/penalties, it has its limitations. A claim filed after the period of limitation will not be accepted, but as to the question of when a claim accrues for tolling the period of limitation under 28 USC § 2462, the Circuit courts are divided on this issue. The Western District in United States SEC v. Harden has construed 28 USC § 2462, to not be subject to extension on the ground that multiple violations constitute a single “continuing violation.   As far as injunctive relief is concerned there is no limitation applicable as it is an equitable remedy, but Renaissance may rely on the doctrine of laches as enunciated in United States V. Hobbs to thwart a claim for injunctive relief.