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January 21, 2012 in Opinion
Guest opinion: Sacketts’ fight against EPA all wet
The Sackett wetland case was extensively covered by The Spokesman-Review and other media as it was heard Jan. 9 by the U.S. Supreme Court. The case should be of great interest to all who cherish clean water and clear lakes, and the ability of regulatory agencies to do their job protecting public resources.
The Sacketts claim their lot is not wetland, yet that is not the question brought before the court. Rather, they argued whether or not the U.S. Environmental Protection Agency has authority to issue Administrative Compliance Orders (including monetary penalties) that cannot be challenged by the landowner prior to a court ruling. The case drew many friends of the court, including corporations and groups with vested interests in nullifying the ability of agencies like the EPA to issue administrative compliance orders. Those filing support briefs include the American Petroleum Institute and GE.
I drove by the property in question for decades and know it is a wetland. It was frequently covered with standing water, soils were saturated, and it was covered with plants common to wetlands in the area. These are the three criteria used to identify wetlands under federal guidelines, and the property meets them all.
Beyond the science, an average person would see it is located at the bottom end of a large drainage and is very wet. Yet they claim the lot is not a wetland. So why did they need to haul fill with dump trucks for three days to prepare it for construction of their house?
The $23,000 price for two-thirds of an acre lot located less than 100 yards from the shore of Priest Lake speaks volumes. The typical price of vacant Priest Lake property is much higher and points to the substandard nature of the property as a home site. As excavation contractors, the Sacketts were amply equipped to fill the lot and prepare it for building.
Though portrayed as such, this is not a case of the Sacketts versus a big government fabricating a case against them. The EPA does not fabricate cases because there are wetland violations all around us, and only the most egregious are pursued. The facts of any case are analyzed and reviewed by managers and attorneys and, if weak, it does not go forward to any enforcement action, let alone to administrative orders with possible legal action. The analysis includes impact to private property rights as well because taking private property without just compensation is illegal and the government looks very carefully at this issue before making any regulatory decisions.
Agencies and regulations exist to protect the public resources we all value. Ask yourself this question: What is a regulatory agency to do when the facts are clear, the law is being violated, and the landowners are uncooperative? Administrative Compliance Orders like the ones in question are typically used by agencies with limited enforcement resources and are the most efficient way to reach resolution.
Environmental laws exist to protect resources under threat of loss to the hands of those who don’t care or don’t know better. Any law is useless without enforcement, and we should quit complaining about regulations and the agencies in place to enforce them. They work for us on behalf of resources that cannot protect themselves. They are not perfect, but can only be improved by the constructive cooperation of the regulated public.
Despite the rhetoric suggesting otherwise, regulatory agencies generally bend over backward to help alleged violators. Even so, a few people fight regulation with ideology as their only defense. The Sacketts claim they love the lake and clean water and would do nothing to endanger the values we all hold dear. If so, the right thing to do would be for them to restore the wetland, and assure its future protection for the public good it provides.
Perhaps the power of government regulators should be tempered. We must trust the Supreme Court will answer that question.
What we all want is preservation of Priest Lake’s famed water quality
Michael Doherty,a retired biologist and regulatory project manager, hasnearly 31 years of experiencein wetland regulation and enforcement with the U.S. Army Corps of Engineers in North Idaho and five other states.
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gmorton on January 21 at 6:17 a.m.
Michael Doherty wrote,
“Agencies and regulations exist to protect the public resources we all value.”
That’s fine, Michael. That’s what they should do. But a wetland on my property is *my* resource, not a “public resource.” If the public desires to benefit from that resource, they need to make me an offer I can’t refuse, and pay just compensation.
Jeffrey_Grey on January 21 at 7:30 a.m.
gmorton,
One (genuine) question: If the Sacketts purchased the land after enactment of the laws that governed how wetlands are to be administered, would the result be the same in your opinion? (To say it perhaps another way; what responsibility did they have for the potential consequences of their choice to buy the land?) If their ownership of the land pre-dates the enactment of the laws that ‘interfere’ with their use of that land, I agree completely with you. The State has taken the use of their land and must pay just compensation. If, on the other hand, they bought a parcel of land that couldn’t be used for the purpose they intended, whose fault is it but theirs? (Assuming that the right to govern your own life comes with the responsibility to live with the choices you make.)
I would take exception to Mr. Doherty’s comments on a different point.
My answer would be: You follow the clear intention of the Founding Fathers and take the matter before a (theoretically at least) impartial judge seeking authorization to employ whatever appropriate enforcement powers the applicable law allows.
“Innocent until proved guilty.” That is the foundation. Before the State can bring its overwhelming power to bear on the citizen it has to justify the exercise of that power. The citizen doesn’t have to prove the exercise of power isn’t justified after the fact.
If Mr. Doherty is stating the case accurately - if the facts are as clear as he claims… If the State has thoroughly researched those facts and arrived at its conclusion based on expertise and due dilligence, then it should be a very simple matter to take this before an impartial judge and receive the necessary authorization to force compliance.
Yes, that’s an extra step. But that extra step is the price for a system that depends upon the maxim: “Innocent until proved guilty.”
Orphan on January 21 at 7:33 a.m.
Michael What this is really about is if the can EPA make and enforce laws, I for one hope the SCOTUS rules that they cannot. Only congress can make law, too many government agencys are making law as they go BATF, EPA etc are great examples.
Orphan on January 21 at 7:39 a.m.
Jeffery There is no such thing as innocent until proven guilty in the good ol USA. If you were innocent until proven guilty no one would ever be prosicuted for a crime. You are fooling yourself if you think a DA is prosicuting you when he thinks you are any thing except for guilty. Thats how we end up with so many innocent people in jail I might add.
gmorton on January 21 at 7:42 a.m.
Jeffrey_Grey wrote,
“If their ownership of the land pre-dates the enactment of the laws that ‘interfere’ with their use of that land, I agree completely with you.”
*Someone’s* ownership predates the regulatory seizure. If the government had compensated that owner, and recorded a “wetland easement” on the property, then subsequent purchasers would have no grounds for complaint. If it has never compensated the affected owners then that debt is still owing, and no claim by “the public” to the benefits of that wetland is valid.
Jeffrey_Grey on January 21 at 7:49 a.m.
gmorton,
I agree with that assessment. (My goodness! Someone mark the calendar!!)
Orphan,
So I guess we just throw that part of the Constitution out because it clearly has no application in the real world. Yes?
gmorton on January 21 at 8:23 a.m.
Michael Doherty wrote,
“If so, the right thing to do would be for them to restore the wetland, and assure its future protection for the public good it provides.”
Uh, no, Michael. The Sackett’s have no duty to devote their private property to furthering “the public good.” That is the difference between private property and public property. The “right thing” to do is for the public to *pay* the Sacketts if it wishes to realize a “good” from their property.
Orphan on January 21 at 8:30 a.m.
Jeffery Please show me where innocent until proven guilty exists in the Constitution, there is no such thing my friend. This is a common urban legend that even I believed until a few years ago. Per the Constitution you and I have a right to a speedy trial, due process and a trial by jury but no where are we innocent until proven guilty.
And to top that off the Constitution only applys to the federal government except for the rights that have been incorporated to the states. Not all of our rights in the bill of rights or constitution apply in every state. For example Kalifornia has no right to bear arms only laws up to when the 2nd Amendment was incorporated to the states after the McDonald ruling.
gmorton on January 21 at 8:58 a.m.
Orphan wrote,
“Please show me where innocent until proven guilty exists in the Constitution, there is no such thing my friend.”
There may be misunderstanding here as to what that homily means. It means that the government must prove guilt; the accused need not prove innocence, and that the government may not deprive any person of life, liberty, or property until a jury is persuaded that the government has produced such proof. That is what “due process of law” means in Anglo-American jurisprudence, and it expressly mandated by the 5th Amendment.
“Innocent until proven guilty” means that no person can be *punished* for a crime until proven guilty of it; not that no person may be *accused* of a crime.
rosehips on January 21 at 9:08 a.m.
It will be interesting to see what the Supreme Court rules.
Obviously, we need to come up with a more effective way to stop environmental crimes.
Shame on any private land owners who would fill in a wetland so they can have a nice view.
If fines can’t be levied, what other recourse should the government have to prevent crime? Surely, house arrest isn’t appropriate.
rosehips on January 21 at 9:15 a.m.
And why didn’t the Sacketts just restore some wetlands someplace else in exchange for building on their wetland?
That’s what the government is doing in order to build the huge border patrol headquarters currently being constructed on wetland just north of Colville. The EPA should charge the US for this egregious crime against nature. All to catch a few drug smugglers. No wonder we are so heavily in debt and our leaders have no respect.
Jeffrey_Grey on January 21 at 9:37 a.m.
Goodness. Well, let’s see…
Fourth Amendment: “…no warrants shall issue, but upon probable cause, supported by oath or affirmation…” Why demand proof to support search warrants if there’s no presumption of innocence? What is the proof supposed to show - other than that the presumption might not be valid?
Fifth Amendment: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury… nor be deprived of life, liberty, or property, without due process of law…” Again, if there’s no initial presumption of innocence, why not just throw a suspect in jail and then let him try to prove his innocence?
Then there’s the whole Sixth Amendment. You don’t see an initial presumption of innocence in all of that?
In criminal trials, why is the burden of proof upon the State to ‘prove beyond reasonable doubt’ before it can convict? To prove what? That the person is guilty of the crime charged, of course. But if the prima facie burden is to prove guilt, what’s the necessary initial presumption that the State is trying to overcome?
Speaking of the Courts, the Supreme Court (which does appear in the Constitution as the final arbiter of the constitutionality of our laws) stated unequivocally that this presumption exists:
Coffin v. United States, 156 US 432 (1895)I grant you that the words, “innocent until proved guilty” don’t appear anywhere in the Constitution. But I submit that unless you accept the existence of that presumption, a lot of what actually is in the Constitution makes no logical sense.
Now, with respect to the individual states and the application of this particular right:
Fourteenth Amendment: “No State shall … deny to any person within its jurisdiction the equal protection of the laws.”
But by all means, please cite to any state law or court ruling where a state successfully denied any criminal defendant a presumption of innocence. (Bearing in mind that I can cite to a lot of Supreme Court decisions where they failed in the attempt.)
Orphan on January 21 at 9:38 a.m.
gmorton you understand it just like I do only you said it much better than I would have. We follow old English law and the concept of innocence until proven guilty was well documented but for some reason the founding fathers did not include it as such, I believe they were counting on due process and the right to a jury to take care of it.
The founding fathers forgot to take into account that so many craniums & scrotums would be void of contents in this day and age.
Jeffrey_Grey on January 21 at 9:39 a.m.
gmorton,
You got your post in before I managed to finish my long-winded sermon.
This is truly shaping up to be an odd day because I have to admit; you not only said some of what I was trying to say, you said it more succinctly to boot.
Jeffrey_Grey on January 21 at 9:42 a.m.
Orphan,
Now I’m confused. What do you see as the very beginning of due process if not the presumption of innocence? Maybe the Founding Fathers didn’t include those words simply because they were so obviously intended as a logical precondition to all the words that were used?
Orphan on January 21 at 11:13 a.m.
Jeffery I think what we were discussing was if innocent until proven guilty was in the constitution, it is not. The rest of what you are saying I have no argument with. As you said gmorton summed it up pretty good.
gmorton on January 21 at 11:23 a.m.
rosehips wrpte,
“Shame on any private land owners who would fill in a wetland so they can have a nice view.”
Er, rosehips, the Sacketts did not buy that property to confer a benefit on the public; they bought it for their own use. That’s what *private property* is for – meeting private purposes. The shame is on the gummint for trying to confer a benefit on the public without paying for it.
“If fines can’t be levied, what other recourse should the government have to prevent crime?”
“Crime”? That is like making it a crime for you to sleep in your bed, rather than handing it over the gummint give to a homeless person.
“And why didn’t the Sacketts just restore some wetlands someplace else in exchange for building on their wetland?”
Because the Sacketts have no duty to donate wetlands to the gummint.
rosehips on January 21 at 11:36 a.m.
@gmorton,
Well, the Sackett’s may have bought the property for their own benefit, but there are laws to prevent them from destroying wetlands that we all depend on.
Private property is not for meeting private purposes. At least I don’t think so. It’s a vague statement.
Your private property rights argument holds no water with me. Ownership doesn’t mean void of responsibility.
gmorton on January 21 at 3:07 p.m.
rosehips wrote,
“Private property is not for meeting private purposes.”
Really? What do you think the word “private” means?
If you are dependent on a wetland on someone else’s property, you’d better make him an offer. You are dependent on beans and corn grown on others’ property too, but that doesn’t oblige their owners to hand them over to you.
“Your private property rights argument holds no water with me.”
Okay. Then if someone snatches your purse or steals your car, you will make no complaint. Right?
greenlibertarian on January 22 at 1:45 a.m.
I agree with gmorton to a fair extent, the gov’t needs to pay FMV or contract-agreed consideration to such property owners, in most cases.
WillyPeter on January 22 at 6:09 a.m.
Amazing! I wake up Sunday morning, have coffee, crank up the computer to read a handful of newspapers, and find myself agreeing with nearly everybody here; even greenlib!!
“Will wonders never cease?”
berrybestfarm on January 22 at 1:20 p.m.
We should all mark this issue as one with super majority agreement. If we can come up with just 3 such such issues we can all work together to make our country strong again. May I suggest:
All citizens have the same rights and responsibilities (no more exemptions from breaking the law due to executive or special priviledges—ie Congress’ “insider trading”
Every judicial decsion must affirm or strengthen Constitutional protections of the individual.
Dennis Patterson—Deer Park
Scottcycle on January 22 at 2:46 p.m.
Mr. Doherty has mischaracterized the legal issue being reviewed in the Sackett case.
Last fall, I read an article by the attorney representing the Sacketts in which he explained the issue in some detail. The simple issue at stake is whether a citizen can seek and obtain judicial review of an administrative compliance order (“ACO”) issued against the citizen by the EPA. That’s it. Its that simple.
In this case, the EPA issued an ACO against the Sacketts that ordered them to either remove the fill on their land and restore native plants (at great personal cost) or face bankruptcy inducing federal fines for failing to comply. The Sacketts would like to submit this matter to a federal court to decide who is right, but under current EPA law, as the statute is written, they can’t. They are forced to either spend a fortune and comply, or wait until the EPA decides that it would like to take them to court to enforce the order, and collect the ruinous fines that will build up over the months or years that the EPA delays and takes its time. It’s basically a statute induced game of chicken between unequal parties.
Declaratory judgment (as the Sacketts seek) is a very common form of protection provided by our courts that is woven throughout our legal system. It appears to be a fair and necessary form of relief that should be available as part of our EPA laws. It will not take away any powers of the EPA.
gmorton on January 22 at 4:46 p.m.
Scottcycle wrote,
“Mr. Doherty has mischaracterized the legal issue being reviewed in the Sackett case.”
Actually, Doherty got it right. He said, “The Sacketts claim their lot is not wetland, yet that is not the question brought before the court. Rather, they argued whether or not the U.S. Environmental Protection Agency has authority to issue Administrative Compliance Orders (including monetary penalties) that cannot be challenged by the landowner prior to a court ruling.”
It was us commenters, including me, who re-focused the discussion to the underlying, and much more important issue. As I argued elsewhere on this forum, the Court should rule on the issue presented, and in an *obiter* invite the plaintiffs to re-file, challenging the EPA’s action as a “taking.”
Davesix on January 24 at 4:29 p.m.
Mr. Doherty wrote, “I drove by the property in question for decades and know it is a wetland. It was frequently covered with standing water, soils were saturated, and it was covered with plants common to wetlands in the area. These are the three criteria used to identify wetlands under federal guidelines, and the property meets them all.”
In fact, since all three criteria are required for a proper delineation, and since Mr. Doherty cannot be certain of the groundwater hydrology without excavating test pits or conducting other geohydrological investigation, he does not “know” that it is a wetland.
The presence of “wetland” species of plants, absent the morphological adaptations required for existence in saturated conditions, does not qualify the area as a wetland.
Current guidance documents require that the soil moisture regime be “aquic”, which means not only saturated, but also reducing. The mere presence of standing water on a site does not definitely mean that the underlying soil is saturated.
Mr. Doherty, i submit, cannot know those things, and therefore is not qualified to judge whether or not the property in question is, in fact, a wetland, as defined by the complete definition, contained in the 1987 USACE Wetland Manual, the 2010 supplement,commonly called the WMVC; and the NRCS manuals, “Keys to Soil taxonomy” and “Guide to Hydric Soils.”
Davesix on January 24 at 4:43 p.m.
Silly me: It’s “Field Indicators of Hydric Soils.”
Davesix on January 25 at 8:42 p.m.
Re: “geohydrological”.
It’s “hydrogeological”, of course.