The free, non-harmful, and productive use of private property is a cornerstone of the American Dream. And proper regulation, to prevent harmful uses of property, is consistent with this principle. But government agencies too often abuse their regulatory authority. They issue compliance orders, drag landowners through seemingly endless administrative proceedings, and change the rules as they go — to force landowners to adhere to the whims of bureaucrats.
The Environmental Protection Agency and the Army Corps of Engineers are some of the worst offenders. Since the Clean Water Act was enacted five decades ago, the agencies have progressively expanded their powers and victimized landowners. It’s an experience that many farmers are all too familiar with.
John Duarte, a farmer in California, was threatened with $45 million in fines after the government alleged he ruined wetlands. Even though Duarte did nothing wrong, he chose to settle the case in the face of crippling fines. The government never proved the farmer had done anything wrong, but Duarte still lost more than a million dollars in the settlement.
Now the case of two residential property owners could bring clarity to EPA’s regulatory powers and safeguard the rights of property owners.
More than a decade ago, Chantell and Mike Sackett received a compliance order from the EPA after they started preliminary work to build a home on their residentially zoned property. The agency claimed jurisdiction on the ground that the Sacketts’ property was a wetland under the Clean Water Act. The order alleged that the Sacketts had illegally placed fill material in their (alleged) wetland; and the EPA ordered the Sacketts to stop all construction activity immediately, replace any lost vegetation, and to leave the property undisturbed for three years.
The EPA threatened fines of up to $32,500 (later, $37,500) per day. Even worse, the EPA refused to grant the Sacketts a hearing to determine whether their property was, in fact, a wetland subject to EPA regulation. The EPA simply declared it to be a wetland and refused to hear any more of it.
In 2012 — more than four years after the EPA issued its compliance order — the U.S. Supreme Court ruled unanimously that the EPA had acted unlawfully. According to the Court, the EPA may not unilaterally order the Sacketts to stop using their property and, at the same time, deny the Sacketts a hearing to determine whether the EPA has regulatory authority in the first place.
Therefore, the Court ruled, the Sacketts could challenge the EPA’s assertion that it had regulatory authority over their property. And the Sacketts have litigated that issue since 2012—all the while, their property has remained unused and unproductive.
The problem is that the Supreme Court failed to consider the Sacketts’ due-process claim. Under long-standing due process principles, the government cannot deprive individuals of life, liberty, or property without first providing individuals notice of their alleged wrongdoing and an opportunity for a fair hearing. If the Court had instead concluded that the EPA violated the Sacketts’ due-process rights, then the burden would have been on the EPA to prove its jurisdiction and the Sacketts’ alleged violations. By avoiding the Sacketts’ due-process claim, the Court placed the burden on the Sacketts to go to court and establish that the EPA lacked authority to regulate their property.
Justice Alito identified the problem in his concurring opinion: the combination of the Clean Water Act’s uncertain reach and the EPA’s power to impose “draconian penalties . . . leaves most property owners with little practical alternative but to dance to the EPA’s tune.”
Until full due-process protections are granted to property owners, regulatory agencies — both state and federal — will continue to issue unilateral “compliance” orders or drag out administrative procedures that impose crushing costs and delays on private landowners. These agencies suffer no consequences for their overreach, while private individuals and small businesses are often left with no alternative but unwilling compliance.
For nearly 50 years, Pacific Legal Foundation has represented property owners free of charge who have been victimized by government overreach and abuse. Now — 14 years after the EPA issued its compliance order — PLF has asked the Supreme Court to hear the Sacketts’ case once again.
The Supreme Court should grant their case and take this opportunity to protect private-property rights just as it protects Americans’ other fundamental rights.
This op-ed was originally published by Capital Press on October 5, 2021.