Cheating a rigged game

Protecting one's property rights can be a difficult endeavor due to the courts watering down both state and federal constitutional protections. That fight becomes even more difficult when the Michigan Department of Environmental Quality is allowed to hide evidence without serious consequence.

According to the Michigan Court of Appeals opinion in Seba v. Department of Environmental Quality that was issued on Sept. 29, 2009, Waad F. Seba bought 12 acres of vacant land in Oakland County in 1997. He tried to ascertain whether there were wetlands on his property and began to fill a portion of it that he claimed had been previously filled. Seba was served a cease-and-desist order by the DEQ, which led him to file an inverse condemnation claim. After a bench trial that ended in the DEQ's favor, the DEQ produced a file regarding the previous owner of the property. The appellate court noted:

The file included over 40 documents which showed that significant filling activity had occurred on the property almost ten years before plaintiff purchased it. The MDEQ had failed to produce the file during the litigation despite discovery requests by plaintiff that would have encompassed the file.

The trial court held an evidentiary hearing about this late production and found "MDEQ had intentionally withheld evidence and that the MDEQ made no attempt to provide the evidence in a timely manner" and while granting attorney fees and costs to Seba and holding that MDEQ could not claim the filled areas were wetlands, the trial court stated the damages claim "sounds like a separate cause of action, not that I'm suggesting that." 

Seba did file a second suit seeking damages for the DEQ's improper activities, which was dismissed because a separate court held he should have filed an amended complaint and raised that claim in the earlier case.

The end result for Seba is that 12 years after he bought his property, he is finally certain that his filling of the property was legal, but he was not compensated for the 12 years his property lay dormant. That extended time frame was in large part due to the DEQ's intentional withholding of evidence, and Seba has only had his attorney fees and cost paid, which would not have occurred in the first place if the DEQ had properly admitted the property could be filled.

Government has tremendous powers and financial resources to litigate and can often wear down property owners who lack the means to fight in court. Is it too much to ask that the government not cheat when it already has such advantages?

Patrick J. Wright is the senior legal analyst at the Mackinac Center for Public Policy where he directs the Mackinac Center Legal Foundation. He may be reached at wright@mackinac.org.