The government’s actions in a dispute between the Environmental Protection Agency and a husband and wife targeted by the agency when they bought a residential lot in Idaho and started building their dream home are both “outrageous” and “very strange.”
There were comments today from justices on the U.S. Supreme Court about the Environmental Protection Agency’s actions in a fight with Mike and Chantell Sackett, of Priest Lake, Idaho.
Their 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 the water in 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 Sacketts’ attorney, Damien Schiff, of the Pacific Legal Foundation, argued 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.
But some of the arguments that were on his side actually came from the justices. Samuel Alito suggested that the scenario was one that most homeowners would say “can’t happen in the United States.”
Elena Kagan said it was a “strange position” for the government to adopt in insisting that the property owner has no right to a hearing on such an order. And Stephen Breyer said it looked intimidating to him. “It said this is an order,” he said.
Chief Justice John Roberts Jr. turned the question back on Malcolm Stewart, the government attorney assigned to defend the EPA’s actions. “What would you do if you received this order?” he said.
Stewart wouldn’t answer.
Schiff explained to WND in an interview after the arguments that the focus is that the landowners should have had access to a hearing or some other way to challenge the government’s order without horrendous costs and loss of their property.
“The Sacketts cannot obtain judicial review of the compliance order…,” he said.
Alito noted it was “very strange” for a system that would require a party to apply for a permit to build on “wetlands” when the fact being challenged was whether the land was, in fact, “wetlands.”
Stewart also admitted under questioning from the justices that the penalties that the federal agency could apply to the family, if officials chose, would be $75,000 per day. That would be $37,500 per day for violating the Clean Water Act, even though that hasn’t been adjudicated, and another $37,500 daily for violating the mandatory “order.”
Given the four years that have passed since the dispute erupted, the total penalties at this point would be in the range somewhere above $110 million.
Mike and Chantell Sackett
Antonin Scalia called it the “high-handedness of the agency” when the EPA demanded the couple turn their land into a protected preserve, installing vegetation that wasn’t there before they started their project.
The government did not contest the recitation when Alito summarized what had happened:
“You buy property to build a house. You think maybe there is a little drainage problem in part of your lot, so you start to build the house and then you get an order from the EPA which says you have filled in wetlands, so you can’t build your house. Remove the fill. Put in all kinds of plants. and now you have to let us on your premises whenever we want to … you have to turn over to us all sorts of documents, and for every day that you don’t do all this you are accumulating a potential fine of $75,000 and by the way, there is no way you can go to court to challenge our determination that this is a wetlands until such time as we choose to sue you…”
Breyer noted, “For 75 years the courts have interpreted statutes with an eye towards permitting judicial review, not the opposite.”
Ruth Ginzburg noted that the couple had sought a hearing from the EPA over the controversy, “and the EPA said no.”
Schiff called the hearing tone and content “extraordinary.”
“The most significant thing is that the justices almost to a person had significant misgivings,” he said. “I think it’s fair to say that of the eight justices who asked questions every single one expressed misgivings.”
Chantell Sackett had described for a congressional hearing recently 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 said.
“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.”
“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.