Owners of land taken over by feds getting day in court

By Bob Unruh

Mike and Chantell Sackett

The U.S. Supreme Court has agreed to reconsider a determination by the federal Environmental Protection Agency that it controls what happens on a privately owned parcel of residential land in Idaho and the landowners must do its bidding.

The EPA had warned the owners, Mike and Chantell Sackett, they could be fined millions of dollars if they disobeyed the federal officials’ instructions to undo the preliminary construction work they had begun on what was supposed to be their dream house. The 9th U.S. Circuit Court of Appeals ruled they would have to go through a $200,000 government application process even to get a judicial review of the decision.

But that changed when the high court notified the Pacific Legal Foundation, an organization working on behalf of the Sackett family, that it had accepted the dispute for review.

“Constitutional Chaos: What Happens When the Government Breaks Its Own Laws”

“The decision to take the case and review an anti-property rights ruling by the 9th Circuit should be encouraging for all property owners, all across the country,” said Damien Schiff, senior staff attorney with Pacific Legal.

“With this case, the Supreme Court confronts important issues for property rights and due process. 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?” he said.

“We’re very encouraged that the Supreme Court has recognized how important our case is,” said Mike Sackett in a statement released by the foundation. “We are standing up against an agency that seems to have unlimited resources and few if any limits on what it can do to property owners. We’re standing up for everyone’s right to go to court when the government hands you a raw deal – or takes over your hard-earned property. Thank goodness PLF has been helping us, and now PLF will be making our case in the nation’s highest court.”

The issue arose over the EPA’s announcement that the Sacketts’ residential parcel in a subdivision, which had no standing or running water, was a “wetlands.”

The decision came after the family had obtained all the necessary building permissions and had begun to move dirt and gravel in preparation for the foundation of what was to be their dream house.

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.” After three years 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 the 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 Pacific Legal’s petition to the Supreme Court, “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:

The Sacketts simply say the EPA is wrong, that their land is not “wetlands” or under federal control.

“The 9th Circuit’s ruling against the Sacketts amounted to putting a $200,000 price tag on their right to pursue justice,” said Schiff. “If they can’t get judicial review of the EPA’s land grab without going through a long, costly, and probably futile permitting process, then for all intents and purposes, they have been denied their day in court.

“Charging property owners a sky-high admissions fee to get into court isn’t just wrong, it’s flat-out unconstitutional,” he said.

“There’s no question that the power the EPA is claiming it has under the Clean Water Act is significant,” he told WND earlier. “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.

And it’s not just the Sacketts’ land that could be subject to such orders. The foundation arguments suggest that private property across the nation could be at risk.

He explained:

EPA officials heave declined WND requests for comment. They referred WND to a Department of Justice office, which did not respond.

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 argued.