The Baraga Plains, an isolated and relatively unpopulated area of Michigan’s Upper Peninsula about 60 miles north of Marquette and 15 miles south of the Keweenaw Bay villages of L’Anse and Baraga, are defined by a very distinct geology: A flat glacial outwash with poorly drained soils, the Plains are hydrologically isolated. Due to the accumulation of silt and decaying vegetation, the saturated soils and numerous bogs are highly acidic and biologically sterile, constituting wetlands in what hydrologists characterize as the “climax state,” nearing the end of their functional existence and at an advanced stage of transformation from unproductive wetland to unproductive scrub forest.
In the late 1970s Richard Delene, an independent excavation contractor, had a vision for the Baraga Plains. Because of its unsuitability for forestry or other uses, he was able to acquire almost 2,500 acres at relatively low prices. Retaining the upland forests on the property, he would rejuvenate the wetlands.
An evaluation of the eventual Delene project by Whitewater Associates, an independent consulting firm which has undertaken a number of projects for the Michigan Department of Natural Resources and the U.S. Forest and National Park Services, has documented the dramatic positive consequences for plant and animal habitat. While marginally reducing habitat for 13 bird and 24 mammal species (none of which are threatened or endangered), the project provides enhanced habitat for 132 bird species and 38 mammal species, and created habitat for an additional 101 bird species and 22 mammal species. [Note 1] Considering only breeding (as opposed to migratory) bird species, habitat has been diminished for 12 species, unaffected for 54 species, enhanced for 90 species, and created for 47 species. With reference to those relatively few species for which habitat has been reduced, the Whitewater report notes:
All species potentially occurring in the habitats that were significantly diminished also occupy habitats that were positively affected or unaffected by Delene. Even lowland brush, the major habitat removed from the area of construction, is abundant in other places on Delene’s land as well as in the immediate Baraga Plains landscape.
Any species that may have suffered diminished habitat as a result of Delene’s construction only had to move a short distance in order to secure new areas in which the original habitat was plentiful. The resultant profusion of wildlife cannot escape even the most casual and uninformed observer.
Over the last 15 years Delene has removed stunted trees and the dense vegetative mat, collected the surface waters into a series of ponds, and created a dynamic wetlands’ ecosystem supporting a diverse collection of native plants and animals. Carefully designed to fit the terrain, the ponds have required a minimum of dikes and berms, and those which have been necessary have been constructed with appropriate soils from which organic materials have been removed, assuring their nonpermeability and stability. Overflows are prevented by a gravity-fed system of pipes connecting the various ponds, with eventual flows into the adjacent Sturgeon River either through remaining undisturbed wetlands or through a stream in which a sediment basin has been constructed, preventing silts from entering the river.
To reduce the natural acidity of the Baraga Plains’ surface waters, Delene has lined the shores of the ponds with limestone, permitting a gradual and permanent reduction, in contrast to the “shock therapy” conventionally employed by the Michigan Department of Natural Resources when it treats acidic ponds and lakes with sudden, high concentrations of lime, the consequences of which are not only shocking but also temporary.
The ponds vary in depth from shallow marshes to pools sufficiently deep to prevent complete freezing in the region’s extreme winters, permitting the ponds to be stocked with permanent, reproducing populations of blue gills, perch and bass. The ponds have also been stocked with minnows, frogs, crayfish and other small invertebrates to enhance diversity and create a food chain. Numerous islands provide protected nesting sites for waterfowl, while submerged pipes and shelves provide protective shade for fish. Adjacent fields have been planted with native grasses and clovers, providing a food supply for migrating waterfowl.
Michigan’s Goemare-Anderson Wetlands Protection Act (Act 203 of 1978) was adopted “to provide for the preservation, management, protection, and use of wetlands...” Recognizing Delene’s contribution to these objectives, in 1991 the USDA Soil Conservation Service conferred an award for Delene’s “outstanding accomplishments in the conservation of soil, water and related resources.”
All of this, it must be emphasized, has been accomplished entirely at Delene’s private expense. He has worked with his own equipment, his own labor and that of his wife and children, and his own land. No governmental subsidy, tax abatement or other quid pro quo was either sought or received. In its entirety this has been a private, personal project of Richard and Nancy Delene and their children.
The entirely voluntary nature of the Delene project contrasts with other, often highly publicized but less ambitious and successful, private wetlands’ projects undertaken in order to obtain permits for the destruction of preexisting wetlands in the course of industrial, commercial or recreational developments.
Although a profit motive would hardly negate the environmental enhancement achieved by the Delene project, it is interesting to note that Delene, something of a pantheist, had no commercial objective. Constructing a solid log cabin on upland adjacent to his ponds, which he first occupied on a year-round basis in 1993, Richard Delene simply sought his own Garden of Eden, where, less than five miles from his birthplace, he could spend his eventual retirement communing with nature and which he could then bequeath to his children who had participated in its creation.
Unfortunately, for Richard and Nancy Delene quiet communion at their camp became difficult and now is impossible. When they initiated the project in the early 1980s, authority for issuance of permits for wetlands projects was vested in the U.S. Army Corps of Engineers, which granted the permits despite objections from the Michigan Department of Natural Resources. [Note 2] By the spring of 1990, when they decided to extend the project, that authority had been transferred to the MDNR. [Note 3]
In May 1990 the Delenes applied for the necessary permits. After responding to initial DNR requests for additional information, their permit application languished. In the late fall, notified by their attorney that, by law, an application not acted on within 90 days was awarded by default, the Delenes continued work on the project. Over the following two years they were subjected to recurrent aerial surveillance and site visits from various officials of the Department. In November 1992 the State filed suit against the Delenes in Ingham County Circuit Court, alleging violations of the Wetlands Protection and related acts.
Confronting a prosecution almost 500 miles from their home, unfamiliar with legal processes and dependent on strange attorneys who were less than diligent or competent and who were apparently more concerned with the good will of the DNR and the Michigan Attorney General than with the welfare of their clients, by late 1993, as a result of their attorney’s failings, the Delenes were held to be in default and faced arrest for contempt of court.
In December 1993, shortly after the Delenes had commenced their first winter residence at the camp on the Baraga Plains, an inspection party from the DNR cut the locks on the gates to the property, discovered that the Delenes were at the camp (where Nancy Delene was addressing Christmas cards) and called in reinforcements, including snipers, from the DNR, the Michigan State Police and the Baraga County Sheriff’s Office. Thus commenced what has become known as “the armed standoff,” although Richard Delene adamantly contends that, while refusing to admit officers or to leave his cabin, he did not take any threatening offensive actions.
Because legal action had been commenced which placed the arrest warrants in abeyance until the court could rule on pending motions, [Note 4] after several hours the Delenes’ local attorney was able to negotiate the withdrawal of the siege forces, and Richard and Nancy Delene quickly left the state, fearing arrest if they remained.
In March 1994, represented by a new Lansing attorney, the Delenes appeared in court, Richard Delene was briefly incarcerated on the contempt charge, and more conventional legal proceedings recommenced. Despite repeated requests from the Delenes, their attorney procrastinated in filing of motions to have the court set aside the default. As a result, the eventual request was denied on grounds that it had not been timely filed.
Meanwhile, the DNR contended, with no substantial evidence, that sediment from the Delene project constituted an imminent threat to the Sturgeon River. Because the Delenes’ attorney failed to mount an effective defense, [Note 5] the court ordered construction of a massive sediment basin.
Although Richard Delene constructed the sediment basin, in 1995 the State contended that he had failed to conform to the specifications dictated by the DNR. Represented by yet another “new” attorney, Delene’s expert argued that the specifications were contradictory, unwarranted and ill-advised, but the court again found him in contempt. Although he had been in court for the hearings, because the judge delayed the final proceedings Delene was not present when he was again found in contempt. For the second time Richard and Nancy Delene fled Michigan to avoid arrest.
Because of the default the Delenes were deemed guilty and the only issue before the court concerned penalties and restoration requirements. In December 1995, in the absence of the defendants, the “final” hearings were held on these issues, where the State demanded total destruction of the enhanced habitat created by the Delenes. [Note 6] Eight months later, the court has yet to issue an opinion.
For over six years Richard and Nancy Delene have been subjected to the harassment of recurrent incursions onto their property by agents of the state, of aerial surveillance (even on a Sunday morning), of protracted litigation, and of arrest warrants which have now kept them in hiding outside of Michigan for over a year. They have suffered the almost-total loss of income and incurred staggering legal and related expenses, amounting well into the hundreds of thousands of dollars.
All of this they have suffered solely as the result of a private project, undertaken at private expense on private property, hailed by all independent experts who have reviewed it for the professionalism of its execution and for its contribution to environmental quality.
In State of Michigan v. Bayshore Associates, Inc. (April 21, 1995) the Michigan Court of Appeals characterized the conduct of the DNR as “that of a rogue agency wielding its extensive power to punish and harass a landowner for daring to insist on and asserting its constitutional and statutory rights.” Richard and Nancy Delene understand the Court’s observation only too well.
While more restrained in its language, a subsequent panel of the Michigan Court of Appeals, in K & K Construction, Inc., et al. v. Department of Natural Resources resoundingly upheld the rights of property owners by awarding a total of $5,279,178 for the permanent taking of 27 acres and the temporary taking of 28 acres by refusing to grant a wetlands permit, and again the court emphasized the DNR’s duplicity in its dealings with the property owner and the court. [Note 7] If there is any substantive consistency (and justice) in the decisions of the Appeals Courts, the Delenes will eventually be compensated by the State for the trampling of their rights as citizens and property owners. The only question is, will they live so long?
Any doubts concerning the validity of the Bayshore Court’s characterization of the State’s behavior toward its citizens should be dispelled by the following letter from Assistant Attorney General James Piggush (quoted in its entirety), faxed to the Delenes’ attorney on June 3, 1996, three days before the wedding of their daughter:
It has came to our attention that Susan Delene plans to be married in Baraga County this coming weekend. We presume that Richard Delene plans to be in the state to celebrate this event along with his family.
As you know, there remains an outstanding warrant for his arrest so that he can appear before Judge Giddings and explain his failure to obey court orders to install natural resource protections on his property in Baraga County. Perhaps if he arranged to come before Judge Giddings voluntarily at this time it would avoid the possibility of being recognized and taken into custody by local officials while he is in the state. Please advise whether your client has any interest in arranging for his surrender.
Needless to say, Richard Delene did not surrender; unfortunately, neither did he attend his daughter’s wedding. In May 1995 the Houghton County Republican Party launched a petition drive calling on the governor to exercise his constitutional power to pardon the Delenes and bring their persecution to an end. In less than three months of haphazard, volunteer effort, over 25,000 signatures were secured. While the governor chose to adopt an excessively narrow interpretation of his pardon powers and thus to sidestep the issue, [Note 8] the State at its peril ignores the righteous indignation of citizens aroused by the State’s expressed contempt for its citizens and their fundamental rights.
A subsequent extension of this commentary will contrast the Delenes’ highly successful wetlands project with one undertaken by the Michigan Department of Natural Resources, now in progress for over two decades at a cost well into the millions, involving channeling and diversion of the Sturgeon River in Baraga and Houghton Counties, about 30 miles from the Delenes’ Baraga Plains project. Initiated under orders of late House Appropriations Chairman Dominic Jacobetti at the request of a local diary farmer for whom wetlands were converted into tillable fields, the following is a 1993 summary of the project prepared by Michael Heikkinen, who has worked as a contractor on various phases of the project:
… the DNR has altered the Sturgeon Sloughs north of the Arnheim Road in Baraga and Houghton counties. The following volumes pertaining to the Sturgeon Sloughs have been taken from a 1984 high elevation infrared photo:Approximately 1124 acres of ponds.
Approximately 1 mile of Sturgeon River diversion.
Approximately 335 acres tilled and pot hole field.
Over 13 miles of dike.The volume of excavated material is in excess of 500,000 cubic yards on the dikes alone, not to even mention the ditch and diversion excavation. Keep in mind that the clearing and excavation are still going on, these figures are from a 1984 photo.
The areas of ponds have been cleared of most of the original vegetation, including a large Tamarack stand.
The open ditch and diversion have dropped the natural water table so as to facilitate operation of heavy equipment in areas where you could not walk before drainage took place. The only way to fill pond areas is with large pumps. As soon as the pumps are shut down, the water table starts to fall because of sandy soils.
The one mile of Sturgeon River diversion plus the 9.25 miles of ditch and diversion have rendered the 14.5 square miles of flood plain virtually nonfunctional [as wetland] by keeping the Sturgeon from flooding these areas during the spring high water season. This is only the flood plain represented on the photo. Also, upstream from this point there is approximately another 7 square miles of flood plain that is nonfunctional because of this action.
The 335 acre area of field and man-made pot holes have been mostly cleared of native vegetation, and tilled and planted with non-native grasses and grains.
I have worked on this project as a private contractor on several contracts. I often commented as to the scope of the project and permits to DNR employees. They would reply that they had to go through the permit process the same as myself. Now that is a case of the fox watching the hen house!
This project, undertaken to benefit one politically well-connected farmer, is an excellent example of the environmental consequences of rent-seeking behavior. In a more general analysis of government and the environment [in progress], I argue that man-made environmental catastrophes necessarily are governmentally generated and that governmental action has an inherent bias toward environment destruction.
1. Habitat was unaffected for 88 bird and 38 mammal species. [Return to text]
2. The following is contained in a Telephone or Verbal Conversation Record of the U.S. Army Corps of Engineers, recounting a call from Claude Schmitt, MDNR, 28 June 1982: “He [Schmitt] said that Delene is a rather unusual case in that he generally does as he pleases with little regard for laws & regulations, and in view of this fact he would rather leave this file open.” Apparently, old-fashioned American contempt for authority is now grounds for retributive governmental action. [Return to text]
3. By executive order the Michigan Department of Environmental Quality was created in October 1995, and environmental regulatory functions of the MDNR were transferred to the new department. Thus, subsequent references to the DNR should be understood to refer to the DEQ after its creation. Specifically, litigation against the Delenes is now being prosecuted by the DEQ. [Return to text]
4. In fact, local officials of the DNR and State Police had been informed that the arrest warrants had been suspended pending rulings by the court, suggesting that the armed raid was a deliberate provocation intended to induce a violent response by Richard Delene, known for his “contempt for authority.” [See previous footnote.] [Return to text]
5. State witnesses were unchallenged, and Delene witnesses were either uncalled or their examination by the Delenes’ attorney was very limited. [Return to text]
6. The State’s incredible demands lend support to Delene’s suspicion that the primary concern is the number of migratory waterfowl which utilize his ponds as opposed to public waters. The State’s objection is not to hunting on the Delene property, which has been limited or nonexistent, but to the reduction in the census of migratory waterfowl on public waters, which reduces the federal subsidy received by the State. [Return to text]
7. A third recent panel of the Michigan Court of Appeals also vindicated property rights in Miller Brothers v. Department of Natural Resources (1994). [Return to text]
8. The governor disclaimed the authority to grant pardons (1) in civil matters and (2) prior to final adjudication by the courts. The Michigan Constitution (Article V, Section 14), by excepting cases of impeachment, implicitly recognizes civil offenses as pardonable, since impeachment itself is a civil, not criminal, action; i.e., if the pardon power does not extend to civil offenses, then the Constitution’s exception of impeachment serves no purpose. That a pardon can be granted prior to final adjudication is established by President Gerald Ford’s ex ante pardon of former President Richard Nixon for any Watergate-related offenses, prior even to the filing of charges. [Return to text]