Mike and Chantell Sackett
It probably is just a matter of days before an Idaho family will learn whether it will have to decide between giving the government hundreds of thousands of dollars or giving up completely on its plans for a dream home in Priest Lake.
It may have to pay the government even if it gives up its dreams.
At issue is a pending request before the U.S. Supreme Court to intervene in a decision by the Environmental Protection Agency that the couple's land in a residential subdivision falls under its authority to protect the nation's wetlands.
The problem for the Sackett family is that once a bureaucrat makes that decision, there is no appeal available for a landowner until and unless he or she spends what could be hundreds of thousands of dollars to request special building permission.
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An attorney working on the case said the Supreme Court is scheduled to hear about the issue on Thursday at a conference, a meeting when justices decide which cases to accept and which to ignore.
"If the Supreme Court does not accept this case, for most people throughout the country, if the EPA issues you a compliance order, you are out of luck. You either have to comply … or have the guts to run the risk of civil and criminal penalties," said Damien Schiff, an attorney with the Pacific Legal Foundation, an organization working on behalf of the Sackett family of Idaho.
The legal team submitted a petition for writ of certiorari earlier – essentially a request for the court to hear the case.
Schiff explains how important the case is:
"There's no question that the power the EPA is claiming it has under the Clean Water Act is significant," he told WND today. "Even if you have a good basis the think the EPA is wrong, the EPA won't let you get into the courthouse."
"They are able to shut the courthouse door by issuing compliance orders that are not judicially reviewable," he explained. 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.
EPA officials declined to comment, instead referring WND to a Department of Justice office that was closed. A call to an after-hours number did not generate a response.
WND earlier reported on the background of the Sacketts' problem. 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 $32,500-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," Schiff, the lead attorney in the case, said earlier.
"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:
Schiff said the issue is simple: Bureaucrats' decisions about private property should have a challenge procedure available to ordinary people.
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."
Pacific Legal officials said they expected the Supreme Court decision to take the case or not to be announced about June 27.