“Landfills Are Delicate Things”: Judge Blocks Attempt to Recover Animal Remains“Landfills Are Delicate Things”: Judge Blocks Attempt to Recover Animal Remains

Brenton Marckese owned a Clydesdale, Michigan Breeze, who died from an automobile hit-and-run shortly before Christmas, 2024.  The impact threw Marckese from the horse, and he was taken to a hospital.  Only after his release did he learn that Breeze had been euthanized and her body taken to a landfill. Desiring a more dignified end for his horse, he asked a court to order the landfill to allow him to retrieve Breeze's body for cremation. After holding hearings, the court declined to do so.

Barry Shanoff

February 6, 2025

9 Min Read
Clydesdale
Paul McKinnon / Alamy Stock Photo

“Landfills are delicate things,” said the Delaware Chancery Court.  “[T]here are very good reasons for preventing Delawareans from digging in landfills.”  No matter how poignant the circumstances, it seems.

Brenton Marckese owned a Clydesdale, Michigan Breeze, who died from an automobile hit-and-run shortly before Christmas, 2024. 

From an early age he had a fondness for Clydesdales, a type of draught horse or work horse, named for a region of Scotland on the River Clyde.  The breed is seen these days mostly in parades and processions or, in the case of the Anheuser-Busch brewery, as a brand association.

About ten years ago, he decided to buy a Clydesdale for himself. When one came up for sale, in 2014, Marckese agreed to buy her sight unseen, and he drove to Michigan to bring her home.  He stabled Breeze at local farms and invested much care and time training her.  In 2024, Marckese began boarding Breeze at a ranch about 10 miles west of Dover, Delaware, where he helped the owner clean-up the property.

While on the ranch, he witnessed shady activities by another boarder, including buying horses from kill pens, mishandling and abusing them, and then carting them off to landfills after they died.  After informing the owner of these goings-on, he made it clear to her that he would never send Breeze's body to a landfill. "My animals get cremated," he said.

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Marckese visited Breeze at the ranch daily after work. “Bring her in from the field, . . . groom her, tack her up, and go for a short ride," he said. During their ride on December 17, a vehicle struck Marckese and Breeze and then sped away. The collision threw him from the saddle.  When he regained consciousness moments later, he found himself partially pinned under the mare's body.

Another driver stopped within minutes and contacted emergency services.  By that time, Marckese had loosened himself from Breeze but was injured.  He could tell that Breeze too was injured, and he stayed with her as long as he could.  Eventually, the ranch owner arrived on the scene and contacted Breeze’s farrier, Sam, and a veterinarian.  Before he was taken to the hospital, Marckese gave no one any instructions about Breeze’s care.

Marckese was examined at the hospital and given pain medication.  While there, he learned that Breeze had been euthanized but was not informed what had happened to her remains. He was released on December 18, and later that day he learned that Sam had asked a contractor to retrieve Breeze's body.  After calling the contractor, Marckese learned that the carcass had been taken to the Sandtown Landfill, in Felton.  Since 1980, the Delaware Solid Waste Authority (DSWA) has operated Sandtown as a permitted solid waste disposal facility regulated by federal and state laws.

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He arrived at the landfill at 7:00 a.m. the next morning, hoping to retrieve Breeze’s body.  However, the site managers told him he would need a court order to do so.  State health and safety regulations prohibited the public from scavenging at landfills, according to DSWA Chief of Facilities Management Jason M. Munyan.  Munyan is a board-certified environmental engineer with 25 years of experience and is responsible for operations at Sandtown.

Marckese retained counsel who, on December 23, filed a petition in the Delaware Court of Chancery with allegations including replevin – a legal remedy aimed at recovering property unlawfully taken or withheld from its rightful owner. (The Delaware Court of Chancery is a trial court known as a hub for corporate governance litigation in the United States. It also has exclusive jurisdiction in cases where a party seeks an injunction. The Court consists of one Chancellor and six Vice Chancellors.) With the petition, counsel also filed a motion for a temporary restraining order (TRO), asking the court to prevent DSWA from barring Marckese from the landfill and to allow him to collect Breeze's remains. DSWA opposed the petition with a written response, including an affidavit from Munyan.

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Somehow the court did not learn about the petition until Christmas Eve. Given the concern for decomposition, along with the risk that Breeze would become unretrievable due to the deposit of other waste, Chancellor Kathaleen St. J. McCormick apparently put aside whatever Christmas Eve plans she may have had and held an emergency Zoom hearing on the motion at 8:00 p.m.  At the hearing, counsel for Marckese modified his motion, asking that no further activity occur on the portion of the landfill where Breeze's body was placed until the court could consider the motion on its merits.  With no opposition from DSWA, the court granted the request. A second Zoom hearing on December 27 would determine the fate of Breeze's remains, and it was there Chancellor McCormick heard testimony from Marckese and Munyan.

Munyan’s affidavit and his testimony in the hearings amounted to a short course on state-of-the-art landfill management.  As he explained, Sandtown is constructed with a base layer geomembrane liner to prevent leachate from percolating through the deposited waste and contaminating groundwater.  Heavy equipment would present a risk of damage to the liner, particularly when operated by anyone unfamiliar with the landfill environment. A damaged liner is an expensive repair.  And if the damage went undetected, groundwater could be threatened by escaping leachate.

He further stated that at the end of every operating day the site working face is covered with a layer of soil to prevent the escape of odors and pathogens and to prevent vermin from accessing the waste. When a disposal area reaches its maximum design capacity, it is capped with a geomembrane covering and topped with stabilizing vegetation.

The decomposition of solid waste in landfills generates substantial quantities of landfill gas, he continued, which typically consists of methane and carbon dioxide with trace amounts of other compounds such as hydrogen sulfide. Landfill gas is foul smelling, flammable, toxic and a pollutant. Landfill employees’ potential exposure to dangerous gases is significant enough that DSWA requires those who work in certain areas to wear personal monitors to detect these threats. To minimize the escape of landfill gas into the environment, DSWA engineers have installed a network of wells that are connected by pipes.  As the landfill grows, this system is extended. The landfill cap, along with daily cover, provides additional containment of the landfill gas.

Excavating a landfill risks creating pathways for gas to escape the landfill, for vermin to access the waste, and for pathogens to spread, he added. Using heavy equipment poses the risk of damaging the leachate and gas collection systems, cover, caps and liner.

 If Marckese were permitted to scavenge the current working face for his horse’s remains, Munyan cautioned, DSWA would be required to suspend operations there and prepare a new working face with a new stone pad and possibly a new access road to accommodate daily activity.  Given the risks, DSWA would also need to conduct the excavation with trained engineers.

Munyan further noted that no member of the public has ever been granted access to a landfill for the purpose of retrieving a personal item during his 19-year tenure with DSWA.  He estimated that a safe excavation would cost about $25,000 per day.

Sandtown is in a rural area where landfilling large animal carcasses is common.  On December 18 alone, Munyan stated, Sandtown received four large animal carcasses, including Breeze, from a licensed independent animal carcass removal contractor.

Based on the delivery date, DSWA could identify the general area where Breeze's body was placed.  It’s "in a row roughly ten feet in thickness known as a 'lift' approximately one acre in area," Munyan said.  Precisely where in that area the carcass is located cannot be determined, except that it is "standard operating procedure to make sure carcasses are at the bottom of the lift to ensure complete coverage and minimize the potential to create the visual that may be considered disturbing to some customers," he explained. At the December 27 hearing, DSWA presented video evidence of a recent animal carcass delivery showing this procedure, which, if followed with Breeze, her body would have been covered with a considerable amount of waste immediately upon deposit.

Chancellor McCormick quickly determined that the Court of Chancery was the proper court for the litigation given the remedy initially sought by Marckese: to prevent DSWA from further covering the location in which the remains were placed to improve his chances of recovering them.  The property at issue – Breeze's remains – is unique and of no value to anyone but Marckese.  Assessing monetary damages would not provide the relief sought.

A TRO is used in emergencies, typically at the outset of a case, and has two purposes: to preserve the status quo and prevent imminent irreparable harm pending a final resolution of the case. Here, Marckese desired more than interim relief; regaining possession of Breeze's remains would be his goal.  Permanent injunctions, however, come after a trial on the merits and require a party to demonstrate actual success on the merits, irreparable harm without the injunction, and a balance of interests in their favor.

 “Even assuming the court found that Mr. Marckese had succeeded on the merits of his replevin claim and that he faces irreparable harm, the court cannot issue a permanent injunction because Mr. Marckese has not shown that the equities tilt in his favor,” Chancellor McCormick wrote.

“Balancing the equities requires a court to compare the relative importance of interests that defy conventional approaches to valuation. In that way, it is an unenviable task, particularly where the competing interests are so disparate as to seem totally incomparable. *  *  *  How does one compare the solace of knowing that the remains of one's beloved animal companion have been treated with dignity against the dangers of disturbing a meticulously engineered landfill? Forget comparing apples to oranges, it's more like comparing apples to differential calculus.”

 She found “clarity . . . as to one factor that carries the day here – the potential for harm to the health and safety of others.  Landfills are delicate things. * * * They must both contain waste and capture waste's hazardous byproducts – leachate, gases, disease, and the like. *  *  * Any disturbance to a landfill risks damaging their health and safety protections, exposing DSWA's workers and Felton's residents to serious harm. The potential precedent of granting the motion could pose even greater harm, as the risks present here would rise exponentially were any animal owner allowed to dig-up her inadvertently landfilled companion. The potential for such harm outweighs any right Mr. Marckese has to retrieve the remains of his beloved horse.”

While expressly acknowledging Marckese’s love for Breeze and his commendable desire to treat her remains with respect, Chancellor McCormick was nonetheless obliged to deny him access to the landfill.

Marckese v. Delaware Solid Waste Authority, No. 2024-1342-KSJM, Del. Ch., Jan. 3, 2025.

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