March 8, 2012

In defense of the Sacketts part II

By Damien M. Schiff Senior Attorney

Some weeks ago I published an oped in the Spokane Spokesman-Review responding to a number of untrue and unfair attacks made against the Sacketts.  In that piece, I explained that the Sacketts reasonably believe that they have no wetlands on their property and that they need no federal wetlands fill permit.  Moreover, I established that no reasonable landowner in the Sacketts’ position would have thought that such a permit would have been necessary to build a modest three-bedroom home on a half-acre lot in an existing, partially built-out residential subdivision.  Nevertheless, Larry Levine, an attorney for the Natural Resources Defense Council, has taken up the cudgels against the Sacketts, and in a recent letter (“Sacketts cut corners“) to the editor published in the Spokesman-Review, contends that I have misrepresented the truth.  Of course, Mr. Levine is mistaken, and to make his errors plain, I think it useful to engage in a point by point refutation of his contentions.

1.  Mr. Levine contends that the Sacketts had many opportunities to obtain a federal wetlands permit cheaply and quickly.  The assertion is simply not true.  Mr. Levine has absolutely no idea whether the Sacketts could have obtained a permit under any circumstances, let alone cheaply and quickly.  Moreover, it is essentially impossible for the Sacketts to obtain any permit so long as the compliance order is outstanding.  But even if there were no compliance order, there is no reason to believe that a permit could be obtained cheaply or expeditiously.  The average cost of even a streamlined “nationwide” wetlands fill permit still runs to $30,000, more than the amount the Sacketts paid for their property.  There is also a larger point here, one that Justice Alito at oral argument noted.  If the Sacketts contend that they have no wetlands on their property, and therefore that they need no wetlands permit, why should they have to apply for a permit to do that which they believe they have no obligation to do?

2.  Mr. Levine argues that the Sacketts should have followed the advice of their expert, who recommended that they get a permit.  Mr. Levine’s understanding of the facts is flawed.  The expert to which Mr. Levine refers was hired to analyze a different property.  He happened to stop at the Sacketts’ home site and, after a quick visual inspection, concluded that it contained wetlands.  But this expert’s analysis was directly contradicted by subsequent analyses by other experts hired by the Sacketts who actually did onsite, professional, scientific analyses.  Even Mr. Levine should acknowledge that a determination of whether wetlands are present cannot be made with a mere visual survey.

3.  Mr. Levine argues that a victory for the Sacketts will hamstring EPA’s ability to protect our environment.  Not so.  To begin with, most landowners will not sue EPA over compliance orders, either because they don’t have the time and money to do so, or they realize that they don’t have a good case (and remember that liability for violating a compliance order is not tolled simply because you’ve filed a lawsuit).  But more important, judicial review of compliance orders will not stop EPA from enforcing the Clean Water Act.  If the agency is afraid to be haled into court, it can simply issue warning letters or some other communication less than a formal compliance order.  These notices would probably not be judicially reviewable, but probably would strongly influence the activities of their recipients.

Mr. Levine’s assertions are not new; they were advanced in an amicus brief filed in support of EPA in the Supreme Court (interestingly, the only amicus brief that EPA received, in contrast to the more than a dozen filed in favor of the Sacketts).  Interestingly, when EPA’s attorney at oral argument, Deputy Solicitor General Malcolm Stewart, attempted to refer to NRDC’s brief, he was quickly shut down by the Chief Justice, who made it clear to Mr. Stewart that the Court does not appreciate attempts improperly to expand the record on appeal.

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Sackett v. Environmental Protection Agency

Chantell and Michael Sackett received a local permit to build a modest three-bedroom home on a half-acre lot in an existing, partially built-out residential subdivision in Priest Lake, Idaho. The home poses no threat to water quality but federal EPA regulators nonetheless declared their property to contain a wetland and demanded they stop all work and restore the lot to its natural condition or pay fines of up to $75,000 per day. When they sued to challenge this order, EPA asserted they had no right to judicial review. The district court and Ninth Circuit Court of Appeals agreed, and tossed their lawsuit out of court. The United States Supreme Court unanimously reversed, ruling that failure to allow the lawsuit violated the Sacketts’ constitutional due process rights. They are now litigating their claims in federal district court in Idaho.

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