EPA strikes back at Idaho landowners

A judge who previously banned a charter school from using the Bible and who acquitted the sniper who killed three people at Ruby Ridge in 1992 has agreed to allow the Environmental Protection Agency essentially to take a half-acre of private land from an Idaho couple.

Chantell and Michael Sackett won a ruling at the U.S. Supreme Court allowing them to challenge the EPA when the agency barred them from building a home on their property in a developed subdivision near Priest Lake.

The agency ordered them to stop their foundation work, restore the original plants and leave the land for observation for years. They were ordered to turn over all their financial records and threatened with fines of up to $75,000 per day for failing to follow the agency's "compliance" plan.

The couple sued in 2008 and fought to the Supreme Court when the EPA insisted they had no right to a court hearing. The Supreme Court unanimously ruled in 2012 the EPA had no right to issue a "drive-by" decision that the Sacketts' land is protected wetlands and prohibit them from using it, and then refuse to hear their arguments.

The Supreme Court decision opened the door for addressing the EPA's orders for the land.

That decision now has come from octogenarian U.S. District Judge Edward Lodge of Idaho, who became a jurist shortly after President John F. Kennedy was assassinated.

He ruled that the EPA can control the property, agreeing with the agency's claims that it is in a wetlands area.

The Pacific Legal Foundation, which has defended the couple since early in the 2000s, said the ruling will be appealed to the 9th Circuit Court of Appeals.

The judge said the EPA can take the couple's home site under the Clean Water Act in an opinion Pacific Legal believes "is erroneous on several grounds."

The case began when the Sacketts got a local permit to build a modest three-bedroom home on a half-acre lot in an existing, partially built-out residential subdivision.

"The home poses no threat to water quality but federal EPA regulators nonetheless declared their property to contain a wetland and demanded they stop all work and restore the lot to its natural condition or pay fines of up to $75,000 per day," the foundation said.

"When they sued to challenge this order, EPA asserted they had no right to judicial review. The district court and Ninth Circuit Court of Appeals agreed, and tossed their lawsuit out of court. The United States Supreme Court unanimously reversed, ruling that failure to allow the lawsuit violated the Sacketts’ constitutional due process rights."

The dry land on the lot has a sewer hookup and is zoned for residential construction.

The Sacketts had started work when the EPA prohibited them from building their home, ordered expensive restoration work and required a three-year monitoring program.

They also were ordered to do mitigation off-site and pay fines costing more than the land was worth.

Judge Lodge said in his opinion the EPA properly evaluated and took control of the private property.

"The EPA conducted a site-specific field examination of the property, and its findings and conclusions were made in accord with the applicable standards and procedures for making wetlands determinations," the judge said.

And there are wetlands nearby, he said.

The judge also ruled that the land is adjacent to Priest Lake, and the dry land with a road and a developed residential neighborhood between the property and the lake are not relevant factors.

The Clean Water Act is applicable, the judge said, because the land is "adjacent to an unnamed tributary that flows into Priest Lake."

Mike Sackett said he and his wife were subjected to "hell" by federal bureaucrats.

When the case was at the Supreme Court earlier, the justices were dissatisfied with the agency. Explained Justice Samuel Alito: "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."