This month, the Supreme Court will review the Sacketts’ four-year-long effort to build on land that the EPA says contains environmentally sensitive wetlands. A decision in the couple’s favor could curtail the EPA’s authority and mean a fundamental change in the way the agency enforces the Clean Water Act.
Even before the court takes up the case, the couple have become a favored cause for developers, corporations, utilities, libertarians and conservative members of Congress, who condemn what one ally told the court is the EPA’s “abominable bureaucratic abuse.”
It is a familiar spot for the agency, which has come under withering criticism in the political arena. Republican presidential contenders routinely denounce the EPA’s actions and regulations as “job-killers,” while GOP House members have voted to ban the agency from regulating greenhouse gases and tried to cut its enforcement budget.
The Pacific Legal Foundation, which represents the Sacketts, features their saga on its Web site under the headline “Taking a Bully to the Supreme Court.” Conservative talk-show hosts have taken up the couple’s fight, and Sen. Rand Paul (R-Ky.) convened a Capitol Hill forum to spotlight what speakers called the dictatorial enforcement policies of the EPA.
“This is what happens when an overzealous federal agency would rather force compliance than give any consideration to private property rights, individual rights, basic decency or common sense,” said the Sacketts’ home-state senator, Mike Crapo (R.)
The issue before the justices is narrow: whether the Sacketts can go to court to challenge the EPA’s initial findings that their lot contains wetlands. But their plight of not being able to develop their land while other homes are built hundreds of feet away and the threat of millions of dollars in fines have provided the EPA’s opponents with a compelling story line.
The EPA has not commented on the case except in court papers. But a coalition of environmental groups, using documents obtained under the Freedom of Information Act, is attempting to present “another side” of the story to the court.
They say documents from the Sacketts themselves indicate that they learned early on that there was a good chance their lot contained wetlands. “Petitioners chose to ignore the options available to them,” says the brief, prepared by the Natural Resources Defense Council and others, and decided to escalate a legal battle rather than negotiate for a permit to build.
The Sacketts’ attorneys have taken the unusual step of objecting to the filing of the NRDC’s amicus brief, saying it is an attempt to inappropriately “expand the record.”
The Sacketts, who run an excavation business in Priest Lake, have watched the drama with a sense of amazement.
“We’re not the fighting kind,” Mike Sackett said recently over a dinner of chicken-fried steak at a restaurant in nearby Coeur d’Alene.
Added Chantell Sackett: “Well, we think we’re not, but we are.”
Priest Lake might be one of Idaho’s prettiest spots, a 19-mile stretch of clear water that is “the Lake Tahoe of the upper Northwest,” said Damien M. Schiff, the Pacific Legal Foundation lawyer who will argue the Sacketts’ case at the Supreme Court.
Fed by streams cascading from the Selkirk Mountains and bordered by state and national parkland, the lake is protected but hardly isolated. Houses and resorts crowd the privately owned lakeshore; piers and a marina jut into its waters.
The 0.63-acre lot that Chantell bought as a surprise for Mike in 2005 is part of a subdivision, bounded on two sides by roads and 500 feet from the lake. There are several homes between it and the shore; Mike worked on the construction of one of them and said it did not require a special permit.
While land to the north across Kalispell Bay Road appears clearly to be wetlands, Mike said, he had no reason to believe that his lot contained “waters of the United States” subject to the Clean Water Act.
“How can you call it a wetland when it’s a lot in an existing subdivision that has a sewer hookup?” he said.
The couple obtained local building permits and, in 2007, began to fill the lot in preparation for their new home. Three days later, acting on a complaint, three officials from the EPA and the Army Corps of Engineers ordered work to stop because they thought the land might contain wetlands.
The agency subsequently issued a compliance order to the Sacketts, saying the site must be restored to its natural state before construction began. Failure to follow the orders could make the couple liable for fines up to $37,500 a day, an amount that would be nearly $15,000 more than they paid for the lot.
The EPA contends that was a starting point for negotiations. Obtaining an exception to build is often available for far less than the Sacketts have spent on legal fees, the agency said. On the other side, the couple describe a bureaucratic maze that left them convinced that they would never be able to build if the EPA’s contention that the land contained wetlands stood.
The question for the Supreme Court in
Sackett v. EPA
is whether the couple had the right at that point to appear before a judge and contest the agency’s contention that their land is subject to the Clean Water Act. If they could not do so, the Sacketts say, their constitutional right of due process has been violated.
So far, all the lower courts that have reviewed the claim agree with the government that the agency’s compliance orders are not subject to judicial review. The agency’s orders are not final, the courts have agreed; it must prove a violation of the Clean Water Act to a judge, and it is up to the courts to levy fines.
The Sacketts counter that the compliance order is mandatory; they say it requires action in order to avoid the potential of ruinous fines. Even the prospect of waiting to see whether the EPA will go to court — it has years to make the decision — deprives the couple of their land and leaves them “to the mercy and whim of EPA.”
If the couple is successful, it would mean that they could bring the issue before a court.
The danger of a Sackett victory, said Lawrence M. Levine, a senior lawyer at the Natural Resources Defense Council, is that it could allow major polluters to tie up the EPA in litigation.
Compliance orders and the threats of heavy fines are meant to persuade violators to fix problems.
“This case is really challenging an important enforcement authority that Congress granted the EPA to move for a speedy resolution of environmental harms,” Levine said in an interview.
Those supporting the Sacketts, Levine said, want to portray “the EPA as overstepping its proper role and being heavy-fisted and unfair.”
“It’s really a war against federal regulation of any kind,” he added.
Schiff said that although the EPA has an “important environmental mandate which we don’t deny,” the agency is “out of control and has been for some time.”
The Chamber of Commerce, in a brief supporting the Sacketts, said internal EPA documents uncovered in a different suit against the agency shows that it trains employees to make compliance orders “ugly, onerous, and tough” to coerce settlements.
Usually, the Supreme Court accepts cases in which lower courts have disagreed over a law. The fact that all have upheld the EPA’s powers suggests that some justices are anxious to consider the issue themselves.
The court’s last look at the EPA’s powers over wetlands, a 2006 decision in a case also brought by the Pacific Legal Foundation, resulted in a muddled ruling that left few satisfied.
The Sacketts knew none of this legal history when their case began. And they realize that even a victory at the high court would only mean more rounds of legal hearings.
But they are taking the long view. “As far as I’m concerned, I don’t care what it takes,” Mike Sackett said. “There’s going to be a house there.”
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