Property owners fight back against $25K daily wetland fines

Two Michigan men have asked a federal judge to strike down as unconstitutional a state law that restricts the way property owners may manage 6.5 million acres of land.

The men, Joshua Wenzlick of Freeland and Paul Satkowiak of Bay County, are represented by attorney Philip Ellison from the law firm Outside Legal Counsel in Hemlock.

The lawsuit names Phillip Roos, the director of the Michigan Department of Environment, Great Lakes, and Energy, Attorney General Dana Nessel and state inspector Brian Marshall as defendants.

Paul Satkowiak’s 15-acre property in Bay County is 10 miles away from any large body of water. State officials, though, say he violated wetland protection laws when he placed dirt on his Mount Forest Township property and built a barn there to store his excavation equipment.

State employees abuse the vague wetland statute that requires a permit if a property has a “bog, swamp, or marsh, inundated or saturated by water at a frequency and duration sufficient to support, and that under normal circumstances does support, hydric soils and a predominance of wetland vegetation or aquatic life,” Ellison told Michigan Capitol Confidential in a phone conversation.

Ellison first filed the lawsuit Feb. 10 and on March 23 he added Wenzlick, a man whom the environmental agency could fine up to $1.7 million for expanding a separate pond, CapCon reported in January.

The lawsuit, filed with the U.S District Court in Lansing, asks federal Chief Judge Hala Y. Jarbou to strike down certain provisions of Part 303 of Michigan’s Natural Resources and Environmental Protection Act for violating the U.S. Constitution.

Satkowiak’s “property is not on any body of water, or adjacent to, or nearby any body of water,” Ellison told CapCon. Yet, he said, state regulators claim it’s a wetland.

The suit alleges that Michigan's wetlands laws triggering fines of up to $25,000 daily violate the Eighth Amendment’s ban on excessive fines, as well as the Fourteenth Amendment.

“If you’re going to assess someone a fine of $25,000 a day, it’s really a criminal statute,” Ellison said. “It’s not like a parking ticket.”

Michigan has used the law to fine businesses $300,000 for allegedly violating wetland rules. The environmental agency doesn’t comment on pending litigation.

The lawsuit asks for Satkowiak’s case to be heard by a jury instead of a judge, a right the Sixth Amendment guarantees to individuals alleged to have committed a crime.

“Juries allow the average, everyday person to be a check on not just the government bringing the case, but the judge on the case too,” Ellison said. “Because the judge isn’t the one who makes the ultimate decision. It’s the citizenry.”

Part 303 of the Michigan law allows the environmental agency to hear complaints in an administrative court in Lansing or the local jurisdiction. The agency usually chooses Lansing.

The attorney said that he’s challenging the authority of state employees to enter private property without a warrant.

In March, a federal judge ruled that a separate lawsuit against environmental quality analyst Justin Smith and inspector Brian Marshall could proceed. The lawsuit accused Smith and Marshall of violating Satkowiak’s Fourth Amendment rights in March 2024 by trespassing on a separate piece of property he owns along M-13 just south of Pinconning.

“My office has sued six different EGLE officials for violating the Fourth Amendment over the last two years,” Ellison said.

The state must respond within 20 days of March 23, the date the lawsuit was amended.