It did not begin with the Sacketts . . . but we hope it will end with them

September 21, 2011 | By PACIFIC LEGAL FOUNDATION

Author: Anne Hayes

Naturally, PLF is extremely pleased that the United States Supreme Court granted the petition for writ of certiorari in the Sacketts' case against the EPA.  However, we should point out that the Sacketts' situation, while a devastating development to them, is not new under the sun.  The EPA has been abusing landowners like this for decades.  The issue is whether EPA can, as Chantell Sackett so aptly states it in the video below, just continue to "bully" people.



For years, the EPA has been issuing "compliance orders" telling landowners that they need to obtain a wetland fill permit under the Clean Water Act before they can use their land, even if there is no indication–such as standing water or wetlands vegetation–that would indicate that the property contains wetlands.  The problem is that once the order issues, there is virtually no way to get the EPA off landowners' backs.  If the EPA claims jurisdiction, for all intents and purposes, it has jurisdiction, regardless of the facts.

This is because the law currently provides only two avenues for forcing EPA to prove the one question that underlies the compliance order:  Is this a wetland or not?

One avenue is to go ahead and apply for the permit and, when you get a denial, take the EPA to court and argue that EPA never had jurisdiction in the first place, because the property is not a wetland. (You can also challenge jurisdiction if the permit is granted, but few people feel the desire to throw good money after bad.)  This option, simple in explanation, takes on a new hue when you realize, as Justice Scalia explained in Rapanos v. United States:

The average applicant for an individual permit spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit spends 313 days and $28,915–not counting costs of mitigation or design changes.

And, he added, even if you ultimately win your case and prove that EPA never had any authority to either grant or deny any permit, "[C]omplying with a regulation later held invalid almost always produces the irreparable harm of nonrecoverable compliance costs."

To add insult to injury, individuals in the Sacketts' position cannot even apply for a permit until the alleged "violation" is resolved, meaning, for the Sacketts, that they must "restore" the property by removing the fill gravel, planting new vegetation, and waiting (three years, in the EPA's estimation) until the lot essentially returns to nature.

In other words, after all that, even if you win, all of your time and money has gone down the drain without even so much as a "Gee, sorry about that," from the EPA.

The second avenue is to ignore the EPA's order, and then wait until they come after you in court so that you can tell the court that EPA has no jurisdiction.  Again, very simple in concept, but dire in reality.  When civil fines can exceed $25,000 per day (for the Sacketts, $38,500 per day), and where a violation, if found, can result in criminal penalties and imprisonment, the risk associated with betting your future on the belief that you are right and the EPA is wrong is pretty daunting.

One more fact completes this portrait of the EPA's behavior:  the EPA has usually issued between 1,500 and 3,000 compliance orders per year.  That's right:  this happens over and over and over every year to landowners across the country.

Certainly, we do not allege that all of these orders have been erroneously issued.  At the same time, we do allege that almost no one who received these orders had the opportunity to argue whether they were erroneous or not.  You see, most people do not have the time or the funds to apply for a permit, or, what is more, to see it through to completion.  In fact, in one case, a former government bureaucrat testified that even when landowners do submit an application for a wetlands permit, they will give up before it is concluded, because the government just keeps asking for more fees and more studies, until they just throw in the towel.

In other words, the EPA prevails through attrition.  And why not? The EPA has limitless time and limitless funds (your tax dollars, for the record).  If they lose, they lose nothing:  no bureaucrat will lose his or her job, and EPA never has to pay damages or other compensation if they turn out to be wrong.  Ever.

Yet, despite this regime, five federal circuits, encompassing jurisdiction over 26 states, have all ruled that this Hobson's choice for landowners is perfectly okay:  no constitutional problem here, move along.   In other words, according to these courts, the fact that you must submit to these draconian measures just to get your day in court does not amount to a violation of the Fifth Amendment's proscripion that "No person . . . shall be deprived of . . . property, without due process of law."  In contrast, PLF has never subscribed to the concept that a government agency asserting "my way or the highway" should constitute the due process standard.

Maybe this is why the Sacketts have received support from so many different quarters, and this is certainly why PLF feels honored to be able to represent the Sacketts and to fight for them and for landowners across the country.  This issue is not a new battle to PLF, but one we hope to resolve, once and for all, with this case, and with the right result.

So, while we will do our utmost to help the Sacketts build their simple 3-bedroom home in rural Idaho on a half-acre lot, this case is really a fight for all of us.  Because if the federal government can treat the Sacketts this way, it can treat every American citizen this way.  And that, quite simply, is wrong.