Court to hear case on abuses by EPA bureaucrats

By: Mark Hyman

Last June, the Supreme Court agreed to hear Sackett v. Environmental Protection Agency, a case that provides an especially alarming example of what happens when the U.S. Environmental Protection Agency claims extraordinarily broad powers derived from the Clean Water Act.

The main question before the court is whether the Constitution’s Fifth Amendment guarantee of due process permits pre-enforcement judicial review of an EPA administrative compliance order pursuant to the Administrative Procedures Act (5 U. S. C. ¤ 704).

Most would argue the Fifth Amendment’s Due Process clause assures them of this very protection: “No person shall be … deprived life, liberty or property, without due process of law. …”

Here’s the background to the case: In 2005, Chantell and Michael Sackett purchased less than two-thirds of an acre of land near Priest Lake in northern Idaho for the modest sum of $23,000. They were nearby small-business owners and wanted to become homeowners. They planned to build a three-bedroom home.

The property was located in a platted residential subdivision with water and sewer hookups and was bordered on either side by existing homes. There were community roads in both the front and back of the property.

The couple were savvy enough to have conducted regulatory due diligence before they purchased the land. The previous owner informed them he had consulted the U.S. Army Corps of Engineers regarding any building restrictions. There were none.

After buying the property, the Sacketts applied for and received all of the pertinent local permits to build a residential dwelling as local zoning ordinances permit. In the spring of 2007, they began preparing the lot for construction.

While gravel was being laid in preparation for pouring the concrete foundation, the work was interrupted by three EPA agents who told the Sacketts the property was a federally protected “wetlands.” They were served with a compliance order to immediately restore the property to its prior condition.

It would cost $27,000 to remove the just-laid gravel, which was more than the property’s purchase price. Yet, the EPA compliance order made further demands.

The Sacketts were ordered to plant new vegetation. The EPA specified what to plant (“native scrub-shrub, broad-leaved deciduous wetlands plants and seeded with native herbaceous plants”) and how to plant (“approximately 10 feet apart”).

Additionally, they were ordered to fence the property, monitor plant growth for three growing seasons and to permit unfettered access to the property by EPA agents.

Most significantly, the compliance order enjoined the Sacketts from the only permissible and practical use of the residential lot.

The EPA’s order not only shattered their homeowner dreams but, it also saddled the couple with exorbitant financial costs. They were hit with astronomical daily fines of $37,500 if they failed to comply with the order. The EPA has levied more than $40 million in fines against the Sacketts.

The Sacketts knew this had to be a colossal mistake. In fact, the federal government’s online wetlands inventory did not list their property. It made sense that the EPA should set aside its compliance order. They requested the EPA do so. However, the agency refused and informed the Sacketts they were not permitted to question the EPA decision.

It would have cost the Sacketts more money to comply with the EPA order than the original purchase price of the property. So, the Sacketts offered to surrender the property to the EPA, but the agency refused and instead insisted they comply with the order.

The EPA’s stance forced their hand. The Sacketts filed a federal lawsuit challenging the EPA’s compliance order, claiming the EPA had no jurisdiction over their property and the compliance order violated their due process rights.

The EPA argued the Sacketts did not have the right to judicial review of the agency’s orders as this would “disserve” the interest of the government. The EPA argued the Sacketts must first comply with the compliance order and return the property to the conditions dictated by the agency; apply for a wetlands development permit; be denied that permit; and only then could they seek judicial relief. Such a burdensome process often takes several years at a cost of hundreds of thousands of dollars.

The courts were not sympathetic to the Sacketts. In 2008, a U.S. District Court judge ruled against the Idaho couple. The judge dismissed the Sackett’s lawsuit and ordered a judgment in favor of the agency.

The Sacketts lost their appeal with the U.S. 9th Circuit Court of Appeals in 2010 when a three-judge panel affirmed the lower court’s dismissal. The Sacketts’ request for a rehearing en banc was denied.

On June 28, 2011, the Supreme Court agreed to hear the Sacketts’ case.

About The Author Mark Hyman:
Mark Hyman hosts "Behind the Headlines," a commentary program for Sinclair Broadcast Group.

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