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A Better Partnership
February 11, 2016

COA says that ordering a property owner to cease all activity on a designated wetland does not constitute a taking

An owner of land is presumed to have notice of the statutory ramifications of his or her land being designated as a wetland.  As a result, when a court orders a landowner to cease all activity on land properly designated as a wetland, the order does not constitute a taking, the Court of Appeals held in Department of Environmental Equality v Morley, No. 323019.
 
The Department of Environmental Quality (DEQ) filed a complaint against Jack Morley seeking an injunction and civil fines for Morley’s dredging, filling, and draining of property alleged to be a wetland.  The trial court entered judgment in favor of the DEQ, finding that a majority of the property was a wetland, and that Morley had violated the Natural Resources and Environmental Protection Act on the wetland.  Accordingly, the court ordered Morley to remove 4 acres of fill material, restore the land to its prior condition, cease farming on all acreage designated as a wetland, and pay a statutory fine of $30,000.  Morley appealed.
 
On appeal, Morley first argued that the trial court erred in granting the DEQ’s motion to strike his demand for a jury trial.  The Court of Appeals affirmed the trial court’s ruling, holding that because wetland protection is not a cause of action known to the common law, there is no constitutional right to a jury trial, even though the statute also provides for monetary damages and criminal liability. 
 
Morley also argued that the trial court’s order requiring him to cease all actions on the wetland constituted a judicial taking.  The Court of Appeals disagreed with Morley, holding instead that Morley should have been aware of these regulations, which were in effect long before he purchased the property.  Because Morley was presumed to know of these regulations and because there was no evidence to show that the property had no economically viable use, the trial court’s order did not constitute a taking.
 
Finally, the Court of Appeals rejected Morley’s arguments that the trial court erred in admitting certain testimony and evidence.  The Court further concluded that Morley had waived any argument that the DEQ improperly relied on the existence of an agricultural drain to determine that the property was a regulated wetland.  As a result, the Court affirmed the judgment in favor of the DEQ. 

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