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Mike and Chantell Sackett
A legal team asking the U.S. Supreme Court to intervene in an Idaho controversy is warning landowners that under the compliance order procedures being used by the U.S. Environmental Protection Agency virtually anyone could be told to pay hundreds of thousands of dollars in permit fees – or face hundreds of thousands of dollars in fines and penalties – over ordinary home construction work.
A petition for certiorari has been submitted to the court by Pacific Legal Foundation, an organization working on behalf of the Sackett family of Idaho.
They own a half-acre lot in a residential area near Priest Lake and wanted to build a home. But after excavation work was begun the EPA “swooped in” with a “compliance order” that requires them to undo the excavation and restore the “wetlands,” and then leave it for three years at which point they could seek a “permit” that could cost hundreds of thousands of dollars.
Or they could wait for the EPA to prosecute the alleged Clean Water Act violations, which could result in penalties of $25,000-plus per day.
According to officials with Pacific Legal Foundation, the Sacketts’ land has no standing water or any continuously flowing water, and they would like an opportunity to challenge the EPA’s “wetlands” determination in court.
However, the 9th U.S. Circuit Court of Appeals, the most overturned court in the land, said before a court could issue a ruling on the EPA’s order, the family would have to go through a years-long, $200,000-plus process of formally applying for a federal wetlands permit.
According to the petition, “Ignoring the compliance order is no option, for several reasons. First, the CWA imposes significant civil penalties for violating compliance orders. … Just one month of noncompliance puts the landowner at risk of civil liability of $750,000. A year’s worth of noncompliance puts the liability at $9,000,000.”
“The Sacketts are being hit with an unconscionable price tag for the right to challenge the feds’ power play,” Damien Schiff, lead attorney in the case, said in a prepared statement.
“Basic principles of due process say that the Sacketts deserve their day in court, to argue for their property rights. As we’re arguing to the U.S. Supreme Court, putting an exorbitant price tag on the pursuit of justice, and the defense of property rights, is flat-out unconstitutional.”
Mike and Chantell Sackett explained their situation themselves:
“The issue in this case is simple, but critically important to all property owners, and everyone who values fair play and due process,” Schiff said. “When bureaucrats try to impose their will on private property, shouldn’t the owners be permitted their day in court, to challenge the government’s claim of control?”
Said Chantell, “They’ve stopped our life … I just think they’re bullying us. I think they do whatever they want.”
The video, produced by Pacific Legal, points out that the EPA could exercise such jurisdiction over any parcel of land anywhere in the nation.
The petition explains to the high court that the Sacketts “were provided no evidentiary hearing or opportunity to contest the order.”
And it explains the 5th Amendment, which states, “No person shall be … deprived of life, liberty, or property, without due process of law,” should be applied.
The 9th Circuit conclusion “leaves property owners like the Sacketts in an impossible situation: either go through with the permit process that you believe is completely unnecessary and spend more money than your property is worth to ‘purchase’ your chance at your day in court; or invite an enforcement action by EPA that may give you your day in court but only at the price of ruinous civil penalties and, depending on the EPA’s ire, criminal sanctions for underlying violations of the CWA.”
Even the permitting process is not realistic, it argues.
“In many instances the agencies will not entertain a permit application until the compliance order has been resolved … For the Sacketts, that would mean (a) removing all the fill; and, (b) restoring the preexisting ‘wetlands,’ which would necessitate leaving the property untouched for a prolonged period of time,” the brief argues.
The legal team noted that between 1980 and 2001, the EPA issued up to 3,000 compliance orders every year across the nation.
“The reality of the Sacketts’ situation is that they have been unambiguously commanded by their government not to complete their home-building project, to take expensive measures to undo the improvements that they have made to their land, and to maintain their land essentially as a public park until the property is ‘restored’ to the satisfaction of the EPA. They have been threatened with frightening penalties if they do not immediately obey; but they have been refused the prompt hearing they should have received as a matter of right in any court.”