By ERIC FREEDMAN
Capital News Service
LANSING – A federal judge in Detroit has rejected a challenge by a former Washtenaw County landlord to his conviction for illegally dumping an estimated 107,000 gallons of raw sewage into the Huron River.
U.S. District Judge Robert Cleland rebuffed an effort by David Kircher to overturn his 2006 conviction for violating Michigan’s Natural Resources and Protection Act in a way that “substantially endangers” the public. He was sentenced to five years in state prison and fined $1 million.
Earlier, the state Court of Appeals upheld the conviction and sentence.
The case arose from an October 2004 incident when sewage backed up at the Eastern Highlands apartment complex that Kircher then owned in Ypsilanti Township.
According to legal papers, Kircher ordered his employees to uncover a manhole and use hoses and a sump pump to dump untreated sewage into a catch basin intended only for storm water.
The pumping continued for three days until local officials ordered it to stop. During that time, Kircher’s employees and plumber told him that the pumping was illegal, but he didn’t stop voluntarily or investigate where the sewage was going, trial evidence showed.
The raw sewage went from the catch basin to a stream that flowed directly to the Huron River, which flows to Ford Lake.
Kirchner was convicted at a non-jury trial in Washtenaw County.
Corrections Department records show he was released from prison last August.
In 2012, he filed for bankruptcy protection, listing the $1 million fine among his liabilities.
He has paid only $5,000, and the bankruptcy doesn’t eliminate the balance of the fine. Even so, the state doesn’t expect to be able to collect the other $995,000, according to the Department of Environmental Quality.
In his federal court challenge to the conviction, Kircher unsuccessfully argued that the state environmental law he violated is unconstitutional and that there was insufficient evidence to prove his guilt, including the lack of toxicity tests on the sewage. He also claimed that his trial lawyer was ineffective.
In his decision, Cleland adopted a recommendation by U.S. Magistrate Judge Paul Komives to reject the challenge.
Cleland also found no merit to Kircher’s argument that the state law against “knowing discharge” of sewage doesn’t authorize criminal penalties.
By ERIC FREEDMAN