December 5, 2011 in Idaho

Another Idaho landowner gets into wetlands wrangle with EPA

John Miller Associated Press
 

BOISE, Idaho (AP) — An Environmental Protection Agency dispute with a northern Idaho man over whether he illegally destroyed a wetland has attracted the attention of Gov. C.L. “Butch” Otter and U.S. Rep. Raul Labrador — and again made northern Idaho a focal point of concern among some residents they’re victims of a heavy-handed federal government.

Priest Lake-area property owner Jack Barron successfully fought off a criminal indictment last year. A jury declared him not guilty in U.S. District Court of violating the federal Clean Water Act, but Barron still faces a separate EPA civil order to restore wetlands he filled in on his property — or be forced to pay $37,500 daily fines.

Coupled with a similar EPA wetlands case from the region due to be heard Jan. 9 by U.S. Supreme Court justices, Barron’s continuing fight has revived cries that Washington, D.C.-based bureaucrats are trampling on private property rights.

“I believe they’re being heavy handed,” said Bonner County Commissioner Cornel Rasor. “The federal government should have acknowledged the decision of the court, just as citizens are required to do.”

Bonner County’s new, publicly funded Property Rights Council, which Rasor helped establish to pursue free-market solutions to regulation and bolster private-property rights, is now investigating how it might intervene to help Barron.

Barron, who contends his property isn’t a wetland, has sought help from Otter and Labrador, claiming in an Oct. 14 letter the EPA is trying to eject him from his property.

“The jury found me not guilty,” he wrote. “The EPA refuses to allow me to use my land and is threatening me with more legal charges.”

Otter asked the Idaho Department of Environmental Quality for information about the dispute, then referred Barron to Idaho’s congressional delegation to seek redress with the EPA. On Oct. 20, Labrador demanded the agency tell him why it was continuing to pursue Barron with civil sanctions when the agency lost its criminal case.

The EPA, which contends Barron degraded a wetland that could potentially harm Priest Lake’s water quality, responded to Labrador last month that the criminal-court victory didn’t relieve the agency of its responsibility to enforce Clean Water Act civil provisions.

“In May 2010 the EPA notified Mr. Barron by letter that, even though he was acquitted of criminal charges, he was still required to remove the unauthorized dredged and fill materials on his property and to restore the site,” wrote Dennis J. McLerran, the EPA’s regional administrator in Seattle. “Mr. Barron has refused to comply.”

In the wetlands case that’s to be heard next month in the U.S. Supreme Court, Mike and Chantell Sackett of Priest River are fighting EPA regulators who determined the couple failed to get needed federal permits before filling a wetland on property they were developing.

The Sacketts sued, but lost in federal court when a judge ruled they weren’t yet entitled to a review of whether their property actually was a wetland.

Consequently, Supreme Court justices are reviewing a narrow question: When does the federal Clean Water Act allow people to appeal to a judge if they disagree with the EPA over whether their property is a federally controlled wetland?

If the Sacketts win their high-stakes battle, the justices’ decision could dramatically change how courts intervene in EPA enforcements.

In the Barron’s case, the 66-year-old and his wife, Jill, in April 2007 began excavation work on land along Lamb Creek four miles from where it flows into Priest Lake, in advance of building a house. The EPA contends the four-acre site is a wetland, requiring a permit from the U.S. Army Corps of Engineers before it can be filled in.

In 2009, the agency ordered Barron to restore the property, plant native grasses and monitor developments until 2020.

In court documents, the EPA claims that Barron willfully ignored warnings not to proceed without a permit. Idaho already lists Lamb Creek as among its degraded waters, for sediment and high temperatures.

“Permits do not preclude development, but they require the permit holder to avoid, minimize and mitigate impacts to wetlands,” the agency said in a statement on Friday. “When landowners perform work without permits, wetlands are often irreparably damaged or destroyed. When this happens repeatedly, the cumulative impacts can significantly degrade our nation’s water quality.”

Barron didn’t return multiple phone calls on Friday.

His lawyer, James Siebe in Moscow, told The Associated Press in an interview earlier this year that a soil scientist hired as an expert witness at last year’s trial disputed the EPA’s 2008 determination Barron’s property was a wetland. That helped convince the jury to acquit Barron after just 2 1/2 hours on April 8, 2010, Siebe said.

“The jury just saw this as a ‘David and Goliath’ thing,” he said. “A lot of people would really have a lot of heartburn if they knew what the situation really was.”

© Copyright 2011 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.


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