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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v THOMAS ROBERT KOZAK and THOMAS SYLVESTER KOZAK, Defendants-Appellants.

UNPUBLISHED June 19, 2008

No. 272945 Bay Circuit Court LC No. 05-003753-AV

Before: Davis, P.J., and Murray and Beckering, JJ. PER CURIAM. Defendants appeal from a jury verdict finding them guilty of illegally draining wetlands protected by the Wetland Protection Act, MCL 281.701 et seq, now the Natural Resources Environmental Protection Act, MCL 324.30301 et seq. Defendants also appeal from the restoration order entered by the trial court. We affirm. Defendants are a father and son. The elder Kozak owns a 26-acre parcel of property in Kawkawlin Township, Bay County. The property is bounded to the north by Jose Road, to the east by railroad tracks, and to the west by a strip of houses and businesses on M-13; directly across the railroad tracks is the Tobico Marsh State Game Area, but Tobico Marsh itself is further to the east. Beaver Road lies south of the property. At issue in this case is a roughly triangular area in the northeastern portion of the property. Specifically, the area was alleged to consist of protected wetlands, and defendants are alleged to have illegally drained those wetlands without a permit. Defendants contended that to the extent, if any, there were wetlands on their property, they were the result of a ditch culvert being crushed when a water main was installed in recent history. The evidence presented at trial provided overwhelming evidence that the area at issue was, in fact, a wetland, and it had been a wetland for a very long time. Experts testified that whether a particular area constituted a "wetland" depended on the kind of vegetation present, the kind of soil present, and the kind of hydrology present. The evidence clearly showed that: (1) the vegetation in the area was the kind almost always found in wetlands and almost never found elsewhere, and much of it was sufficiently established and grown to show that it had been present for a long time; (2) the soil was "textbook" wetlands soil consisting of a sufficiently thick layer of "muck" to demonstrate that the wetlands had been there for a long time; and (3) there was a persistent drainage of water to the site from elsewhere, resulting in naturally waterlogged -1-


soil irrespective of whether any ditches that had been in the area prior to defendants' construction work were being well-maintained. Furthermore, when the water main was installed, the company seeking to do so initially planned to run it down the western side of the railroad tracks

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