Mike and Chantell Sackett
An Idaho businessman and his wife are pleading with the U.S. Supreme Court to stop the federal government’s “bullying” over the family’s simple plan to build a three-bedroom home on a plot of ground they purchased in an existing subdivision in Idaho, plans for which they already have obtained all the legally necessary building permits.
The issue is that the Environmental Protection Agency claims that the land – which is surrounded by existing homes on three adjacent lots, has no standing water, and has no streams or creeks on it – is “wetlands.”
This is how Mike and Chantell Sackett describe the shock when they found federal EPA agents on their land, ordering them to stop foundation work, “restore” the land with non-native species, fence it, guard it for several years, and then request a permission to continue their home project that in all likelihood would be denied.
“Bullying,” Chantell told a recent congressional hearing.
“That’s what the EPA does. They came into our life, took our property, put us in limbo, told us we can’t do anything with it, and then threatened us with fines,” she said. “They use intimidation and we as American people, my husband and I, are fed up. We’re scared.
“They can’t be allowed to do this,” she continued. “It’s wrong. This is why we are suing the government, the EPA.”
Mike told the hearing that the situation – the couple actually is facing the potential of $40 million-plus in fines for starting foundation work on their Priest Lake, Idaho, subdivision lot after they met all the government’s requirements – is “terrifying.”
But the arguments are scheduled to be heard Monday before the U.S. Supreme Court, where Damien Schiff, of the Pacific Legal Foundation, will be arguing that the EPA must be subject to the rule of law and the agency cannot simply issue orders violating others’ property rights without giving the owner his or her day in court to argue that the agency is wrong.
The case began in 2005 when the Sacketts were working on their dream home. Their land, purchased for $23,000, is about two-thirds of an acre and is about 500 feet from Priest Lake, Idaho. Houses are on the surrounding lots and their land lacked standing water or a creek. They obtained all the needed county permits for their work.
But while they were working on foundation preparations, the EPA agents arrived, claimed the property is “wetlands” and ordered them to stop work and launch a full restoration project that even included installing plants that were not native – at their own expense. They were told after they guarded the land for several years they would be allowed to pay $250,000 to request permission to complete their home.
They argued against the EPA decision, but got nowhere, so started a court case. It arrived at the U.S. Supreme Court after the 9th U.S. Circuit Court of Appeals ordered them to go through that extensive application process with the EPA – which is not allowed to start until they meet all of the agency’s demands.
The hearing before the U.S. Supreme Court on Monday will focus on the EPA’s claim of authority to issue orders that are above court review – and how that could impact virtually every landowner across the nation.
“We are fighting for ourselves, and everyone in this country who owns property,” Mike Sackett told the congressional hearing recently.
The brief submitted to the Supremes by Pacific Legal Foundation explained that even though the Fifth Amendment to the U.S. Constitution requires that “no person shall be … deprived of life, liberty, or property, without due process of law,” the EPA claims through the Clean Water Act the authority to issue orders as it wishes and collect fines for “violations” – without court review.
In fact, the Sacketts’ case explains, they checked and their land was not listed on the EPA’s inventory of “wetlands,” and when they presented that detail to the government, were told it doesn’t matter.
“Any citizen engaged in a range of activities may run afoul of the act,” the appeal brief explains. “The Clean Water Act’s reach is extremely broad, requiring a permit for the discharge of ‘pollutants’ from a ‘point source’ into the ‘waters of the United States,’ which phrase has been interpreted by regulation to include ‘wetlands.’”
The regulations, the brief contends, had been defined so broadly by the EPA that they have pertained to “land that appears to be totally dry.”
“If the EPA has completed an analysis and made a determination that the property contains jurisdictional ‘wetlands,’ the citizen has no right to judicial review of that analysis. If the citizen hires professionals to conduct a ‘wetlands’ determination, EPA is not obligated to accept it. Despite any evidence, professional opinions, or agency advice the citizen obtains, EPA may still impose sanctions by a compliance order if it has ‘any information’ that” it wants to use to call it wetlands, the brief explains.
Further, the EPA’s “compliance order” demands that the private property owners give the EPA full access not only to the lands but to their private records about what is done to the land.
“Given that the order is not based on probable cause, it withdraws the Sacketts’ constitutional right to be free of unreasonable searches by requiring them to grant access to ‘all records and documentation related to the conditions at the site and the restoration activities conducted pursuant to this order.’”
“We believe property owners should have their day in court, and the EPA has to be subject to the rule of law,” Mike Sackett said.
The congressional hearing testimony:
According to attorneys and investigators who have worked on the case, the EPA itself never did a formal analysis of the property until after telling the Sacketts to halt work because of its “wetlands” designation.
“The EPA still hasn’t done a hydrological analysis of the Sacketts’ property – and that’s the only certain way to make a ‘wetlands’ determination,” a case source told WND.
“The case before the Supreme Court isn’t about what the Sacketts can or can’t do – it’s about what EPA can do to landowners without having to answer to the courts, the law and the Constitution,” the analyst said.
On the case:
“When the government seizes control of your land, and you disagree with the justification, shouldn’t you be allowed your day in court? Just as important, should EPA be a law unto itself, without meaningful accountability to the courts and the Constitution?” Schiff has told WND.
Schiff said there is “no question that the power the EPA is claiming it has under the Clean Water Act is significant.”
“Even if you have a good basis to think the EPA is wrong, the EPA won’t let you get into the courthouse,” he said. “They are able to shut the courthouse door by issuing compliance orders that are not judicially reviewable.”
That puts a landowner in the impossible situation of either complying with the order with its potential cost of tens of thousands or even hundreds of thousands of dollars or facing that same penalty in fines.
The Sacketts’ 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,” Pacific Legal argued.