January 26, 2012

In defense of the Sacketts

By Damien M. Schiff Senior Attorney

Michael Doherty, a retired official with the United States Army Corps of Engineers, had this piece in the Spokane Spokesman-Review last week claiming that PLF clients Mike and Chantell Sackett should have known that they were building in wetlands.  Mr. Doherty goes on to suggest that the Sacketts are mere shills for big corporations and businesses that want free reign to pollute our nation’s water for profit.  Suffice it to say that none of Mr. Doherty’s charges has merit, as I show below.

1. Mr. Doherty asserts:  “The Sacketts claim their lot is not wetland, yet that is not the question brought before the court.”  Not quite.  The Sacketts’ first claim for relief in their complaint asserts that they have no wetlands on their property and that EPA’s compliance order is null and void.  Until now, the Sacketts have not had an opportunity to make that basic point, because the lower courts have held that landowners like the Sacketts are not allowed to sue EPA over its compliance orders, no matter how erroneous or flawed those orders may be.  To be sure, the Supreme Court is now considering whether the Sacketts can have their day in court.  But that ruling would merely be an intermediate step for the Sacketts to obtain what they have asked for all along: just an opportunity to convince a court that EPA’s compliance order is illegal.

2. Mr. Doherty asserts: “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.”  Shame on Mr. Doherty.  He of all people as a former Corps official should know that no scientist would ever make a wetlands determination merely by eyeballing a property.  He of all people should know that wetlands depend not just on the presence of certain types of plants, but also on soil type and hydrology, factors that obviously cannot be ascertained merely by cruising past a site at 25 miles per hour.  I’m afraid Mr. Doherty inadvertently has indicted himself and his agency with a charge that landowners have known for a long, long time: when it comes to wetlands, EPA and the Corps enforce first and think later.  In fact, Justice Alito at the Sacketts’ oral argument made that very point.  When EPA’s attorney observed, “I don’t think it would be accurate to say that we have done all the research we would want to do if we were going to be required to prove up our case in court,” Justice Alito jumped in:  “That makes the EPA’s conduct here even more outrageous: We – we think now that this is wetlands that are – that qualify; so, we’re going to hit you with the compliance order, but, you know, when we look into it more thoroughly in the future, we might change our mind.”

3. Mr. Doherty asserts: “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?”  Contrary to Mr. Doherty’s assertions, the property has no standing water on it, and has no surface water connection to any ditch or Priest Lake.  Although Mr. Doherty may not be a homebuilder, he shouldn’t be surprised that raw land oftentimes has to be graded to prepare for construction, and that such grading requires a layer of gravel.  That’s true as much for upland as for wetland.

4. Mr. Doherty asserts:  “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.”  No doubt that some lots near Priest Lake are more expensive, but let’s not forget that the Sacketts’ lot is not immediately along the Lake, which normally is the location that commands the highest prices.  Importantly, prior to commencing construction, the Sacketts had successfully obtained all needed permits.  Neither the Sacketts’ lot nor any other lot in the neighborhood has, to anybody’s knowledge, ever been covered by a Clean Water Act permit or been the subject of an enforcement action.

5. Mr. Doherty asserts that “EPA does not fabricate cases” and that if the facts are weak, the agency “does not go forward to any enforcement action.”  This is doublespeak.  What Mr. Doherty calls an “enforcement action” presumably is an EPA civil action in federal court, or an EPA administrative penalty proceeding.  Of course, EPA has all along contended that the Sacketts’ compliance order is not an enforcement action, is not final, and is merely a friendly invitation to the Sacketts to chat about their legal obligations.  The Justices of the Supreme Court at the Sacketts’ oral argument didn’t seem to care too much for EPA’s and Mr. Doherty’s doublespeak.  As Justice Breyer remarked to EPA’s attorney: “[Y]ou say that this isn’t final.  So, I read the order.  It looks about as final a thing as I’ve ever seen.”  As Mr. Doherty surely knows but declines to state, without judicial review of compliance orders, EPA has carte blanche to issue such orders on little evidence, knowing full well that most landowners will comply regardless.  As the Chief Justice observed to EPA’s attorney: “All EPA has to do is make whatever finding it wants and realize that in 99 percent of the cases, it’s never going to be put to the test.”

6. Mr. Doherty asserts: “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.”  To begin with, even Mr. Doherty knows that Priest Lake’s ecology will not be affected one iota by the Sacketts’ home construction on their 0.63 acre parcel.  But more important, the Sacketts have always wanted to do the right thing: if their property contains regulable wetlands, then they will fully restore their property and comply with the law.  Yet, the Sacketts have never believed that their property contains wetlands, and that belief is firmly supported by expert analyses based on actual, onsite research.  It is flatly contrary to the fundamental principles of our society that the Sacketts should have their property taken away from them without at least giving them an opportunity to be heard and to present evidence on their behalf.  Apparently Mr. Doherty wants to take that right away from the Sacketts and thousands of landowners across this country, for the sake of further aggrandizing the power of an already power-drunk agency.  Let’s hope that the Supreme Court won’t let him.

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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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