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Sunday, October 20, 2019  Spokane, Washington  Est. May 19, 1883
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Guest opinion: Sacketts’ wetlands fight about liberties

By Damien M. Schiff Special to The Spokesman-Review

“They asked for a hearing. Didn’t they ask EPA for a hearing on whether their lands fell within the statute? They did ask for a hearing, and EPA said no.”

Those were the words of Justice Ruth Bader Ginsburg during U.S. Supreme Court oral argument last month in Sackett v. U.S. Environmental Protection Agency.

She wasn’t the only justice to express impatience with the EPA’s treatment of Mike and Chantell Sackett, the couple from Priest Lake, Idaho, who face staggering federal fines after the EPA declared their small parcel to be “wetlands.”

As the Washington Post reported, “Justices across the ideological spectrum appeared troubled by the EPA’s position that Mike and Chantell Sackett do not have the right to go to court to challenge the agency’s wetlands decision.”

Indeed, all Americans should be troubled. If the EPA can turn the Sacketts’ life upside down without having to justify its actions to a court, then no property owners anywhere in the country are safe from arbitrary action by this unpredictable agency.

Some important facts about the Sacketts’ saga:

First, they played by the rules. They own a small business – an excavation company – and they had dreamed of building a family home near the lake. In 2005, when a two-third-acre lot about 500 feet from the lake became available, they bought it for $23,000.

Their parcel is in a platted subdivision, with houses on two adjacent lots and county roads on two sides.

They obtained the forms and checklist from Bonner County to apply for a building permit. They completed everything, including providing their plans for a three-bedroom house and where they would hook up to water and sewer.

They received their building permit, and in late April 2007 they started work.

Suddenly, three federal officials showed up, out of the blue, claiming authority under the U.S. Clean Water Act.

The Sacketts were told they were building on a wetland and must stop immediately.

Shocked, they asked, again and again, for a written statement of what they had done wrong. The reply that finally came, months later, was chilling: The EPA hit them with a wetlands “compliance” order, commanding them to restore the property to the agency’s liking – or face stratospheric fines. (The government now concedes that the fines could reach $75,000 per day – a total of more than $80 million as of this moment!)

Some critics of the Sacketts – calling themselves “environmentalists” – have suggested they “should have known” they had wetlands. Really? There is no standing water on the land or continuous flow of water off the land. A Freedom of Information Act request found that the EPA has not issued compliance orders to anyone else in the neighborhood.

And the EPA never conducted any on-site tests, even though soil and hydrological studies are required to determine wetlands. Justice Samuel Alito called it “outrageous” that a compliance order would be issued with such flimsy grounding.

In short, the Sacketts have good reason to believe their lot is buildable, and they filed their lawsuit to challenge the EPA’s wetlands claim.

But the question before the high court involves process: Who has the final word?

If the EPA says you have wetlands, and seizes effective control of your property, can you seek judicial review?

The EPA answered, “No.” (As Justice Ginsburg noted, the Sacketts were even denied an administrative hearing.) The 9th U.S. Circuit Court of Appeals also answered, “No.” It ruled the Sacketts would have to negotiate a costly permit process – and be turned down – before they could get court review.

This is the issue at the Supreme Court: Is the EPA a law unto itself? If the EPA takes over your land, do you have a constitutional right to your day in court?

The Sacketts argue, “Yes.” If the court rules for them, it will strike a blow for property rights and accountability in government.

Would environmental protection be undermined? No. Regulators would have to be more careful, less cavalier – hardly a bad thing.

In the case of urgent pollution threats, the EPA would still have the power, as it does now, to seek a court injunction.

But when there is no emergency, the EPA couldn’t intrude on people’s property without due diligence. It would have to be prepared to show a reviewing court that its regulations are really necessary – not just a power trip.

The Sacketts believe in safeguarding the environment – and safeguarding our liberties. Those goals are entirely compatible. The Sacketts are owed thanks for taking a stand for principle and property rights, all the way to the Supreme Court.

Damien M. Schiff is a principal attorney with the Pacific Legal Foundation. He represents Mike and Chantell Sackett at the U.S. Supreme Court. The donor-supported Pacific Legal Foundation is a watchdog organization that litigates, without charge, for limited government, property rights and a balanced approach to environmental regulations.
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