Private Wetland Developers: First Visionaries, Now Fugitives

An aerial view of Delene's preserve.
An aerial view of Richard and Nancy Delenes' award winning, private wetland preserve that may be destroyed by order of the state.

Richard Delene has a great fondness for nature. In the late 1970s, Delene purchased 2,500 acres of land on the Baraga Plains, in Michigan’s Upper Peninsula. The land was unsuitable for forestry and Delene wanted to use it for rejuvenating a wetland. The Department of Natural Resources disagreed with his vision and now the matter rests with the Ingham County Circuit Court.

Rejuvenating the wetland was to be accomplished entirely at Delene’s private expense.

Another View of Delene's preserve.
Another view of the Delenes' Eden shows their cabin (background).
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Rejuvenating the wetland was to be accomplished entirely at Delene’s private expense. For nearly twenty years, Delene worked with his own equipment, his own labor and that of his wife and children, and his own land. No government subsidy, tax abatement or other quid pro quo was sought or received. In its entirety, this was a private, personal project of the Delene family.

In the early nineties, Richard Delene constructed a solid log cabin on land adjacent to his ponds where he and wife, Nancy, intended to spend their eventual retirement. They also hoped to bequeath their "Garden of Eden" to their children, who had participated in its creation.

Delene was building his Eden on 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. The Plains are defined by a very distinct geology: a flat glacial outwash with poorly drained soils which are hydrologically isolated. The Baraga Plains are nearing the end of their functional existence. They are in what hydrologists characterize as the "climax state," which is the advanced stage of transformation from unproductive wetland to unproductive scrub forest.

Delene 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.

The finished ponds vary in depth from shallow marshes to pools deep enough to prevent complete freezing in the region’s extreme winters, permitting the ponds to be stocked with permanent, reproducing populations of bluegills, perch, and bass. Delene also stocked the ponds with minnows, frogs, crayfish and other small invertebrates to enhance and create a food chain. Numerous islands provide protected nesting sites for waterfowl, while natural shelves and other submerged materials provide protective shade for fish. Adjacent fields have been planted with native grasses and clovers, providing a food supply for migrating waterfowl.

An evaluation of the Delene project by Whitewater Associates of Amasa, Michigan, an independent consulting firm which has undertaken a number of projects for the 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 new habitat for an additional 101 bird species and 22 mammal species. 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. The profusion of wildlife is obvious to anyone.

Unfortunately for Richard and Nancy Delene, quiet enjoyment of their property became difficult and is now 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 Department of Natural Resources (DNR). By the spring of 1990, when the Delenes decided to extend the project, that authority had been transferred to the DNR.

In May 1990 the Delenes applied to the DNR for the permits that were necessary to extend their project. After responding to initial DNR requests for additional information, their permit application languished. According to their their attorney, an application not acted on within 90 days was awarded by default. Based on that advice, the Delenes continued work on their project. Over the following two years they were subjected to recurrent aerial surveillance and site visits from uninvited DNR officials. In November 1992 the State filed suit against the Delenes in Ingham County Circuit Court, alleging violations of the Wetlands Protection and related acts.

In December 1993 an inspection party from the DNR cut the locks on the gates to the property and discovered that the Delenes were at the camp (where Nancy Delene was addressing Christmas cards). Reinforcements from the DNR, the Michigan State Police and the Baraga County Sheriff’s Office were called to the scene where a brief stand-off took place. Delene has testified that the "reinforcements" included snipers. Arrest warrants were issued for the Delenes, but because legal action had commenced the warrants were held in abeyance until the court could rule on pending motions. Fearing arrest, Richard and Nancy Delene fled the state.

As time passed, the Delenes were forced to confront a prosecution hundreds of miles from their home They became dependent on unfamiliar attorneys and unfamiliar legal processes. On two occasions, Richard and Nancy Delene fled Michigan to avoid arrest for contempt and other charges. In December, 1995, in the absence of the Delenes, the "final" hearings were held on these issues, where the assistant attorney general James Piggish, representing the DNR, demanded total destruction of the habitat created by the Delenes.

For over six years Richard and Nancy Delene have been subjected to the recurrent incursions onto their property by agents of the state, of aerial surveillance, of protracted litigation, and of arrest warrants which have now kept them in hiding outside of Michigan for over a year. They have suffered near-total loss of income, and legal and related expenses costing hundreds of thousands of dollars. Out of fear of arrest, Richard Delene was unable to attend his daughter’s wedding.

This tragic story is one of visionaries seeking to preserve, protect, and improve a slice of Michigan’s natural environment. At their own expense, Richard and Nancy Delene purchased 2,500 acres of land and constructed a wetland that would welcome and nourish a complex web of wildlife—from fish to waterfowl. As a result, they were punished over a lack of permits by a state agency (that had not processed them in a timely manner) shortly after receiving an award from a federal agency (USDA Soil Conservation Service) for the very same work. Today, the Delene case remains unresolved.

Perhaps a better understanding of the value of property rights among law makers and state officials can avert such tragedies. After all, what is yours you tend to take care of, what belongs to everyone tends to fall into disrepair. Since owners must pay the true cost of failing to care for their land, they have a greater incentive to ensure against its misuse. The root causes of environmental destruction are the lack of strong laws protecting the rights of private property owners. Such property rights laws can encourage private stewardship of the environment while discouraging its abuse via the political process.