April 2, 2012

Sackett v. EPA: The real rest of the story

By Sackett v. EPA: The real rest of the story

Last Thursday, E&E reporter Lawrence Hurley published this story on PLF’s landmark victory in Sackett v. EPA. The story is titled “Justice was blind to some facts in Idaho wetlands case,” and the impression one gets from reading it is that Mike and Chantell Sackett should not be viewed as sympathetically as common sense would suggest.

In the story, Hurley writes that “some pertinent information that might have changed perceptions about the Sacketts was not in the official record upon which the Supreme Court is required to rely.”

The problem, however, is that Hurley has fallen into a trap the Natural Resources Defense Council set in order to distract the Supreme Court from the due process implications that were at issue in Sackett.Revisiting NRDC’s failed attempt to confuse the Supreme Court and the public, Hurley writes in his story that the Sacketts may not actually be “innocent victims of agency overreach” and that “there were plenty of opportunities for the dispute to be resolved without the need of Supreme Court intervention”:

Government attorney Malcom Stewart tried to bring up some of NRDC’s findings but was sharply cut off by Chief Justice John Roberts.

“If they weren’t in the record, I don’t want to hear about them,” Roberts said. “You appreciate that rule, that we don’t consider things that aren’t in the record?”

Stewart had little choice but to concede that point.

The NRDC documents do indeed show the Sacketts in a different light, although whether that would have influenced what the Supreme Court decided is impossible to say.

The documents indicate that the Sacketts knew early on that their property probably was a wetland. An expert they hired said so in May 2007, just after EPA first visited the property but months before the agency issued the compliance order.

Furthermore, on May 23, 2007, the Army Corps gave the Sacketts a permit application and asked them to complete it.

Chantell Sackett’s own notes also suggest she recognized the land was a wetland, even if she contested EPA’s authority to regulate it.

“There appears to be some tension between these facts and petitioners’ claims,” NRDC lawyers said in the brief.

Unfortunately, this account omits significant items relating to the Sacketts’ case. It is particularly problematic given that it relies on the not-so-trustworthy NRDC for what Chantell Sackett was thinking in the weeks and months preceding EPA’s draconian compliance order, whereas Chantell’s own response to NRDC’s misplaced filing only confirms the absurdity of the Sacketts’ ordeal.

Indeed, a comprehensive examination of the Supreme Court filings in Sackett provides additional and important context that is not included in the “Justice was blind…” story or the NRDC documents on which the story relies:

1) Did Chantell Sackett recognize her property as a wetland? No. Rather than representing anything close to an acknowledgment that her property was a wetland, Chantell’s notes are simply an honest account of what one consultant told her. If an individual’s mere recitation of an initial wetlands determination binds the individual to that determination without an opportunity for a second opinion, then the regulated public is even worse off than commonly understood.

2) Why didn’t the Sacketts fill out the Clean Water Act permit when the Army Corps asked them to complete it? Putting aside the tens of thousands of dollars that would have been required to complete the permit application, Chantell explained in her declaration in response to the NRDC documents the obvious reason why the Sacketts declined to do so:

NRDC asserts that my husband and I were given an after-the-permit application from the United States Army Corps of Engineers. NRDC is correct that we received the application. My husband and I did not return the application, however, because the application required us to identify the regulable wetlands on the property that we had filled, and it was and is our position that we have never filled any wetlands, let alone regulable wetlands. To avoid being portrayed as having conceded that point, we chose not to submit the application.

3) What about the expert the Sacketts hired in May 2007 who said that the Sacketts’ property was a wetland? Here again, Chantell Sackett’s declaration provides important context:

NRDC states that Mr. Duebendorfer had concluded that the property contains wetlands. Although such was Mr. Duebendorfer’s conclusion, the brief fails to convey the full story. Mr. Duebendorfer never conducted any field tests in accordance with regulatory protocols to determine whether the property contained wetlands, and instead relied only upon a visual inspection lasting fewer than 30 minutes.

Not to mention, as Chantell further explains in her declaration, that other wetlands consultants subsequently hired by the Sacketts “conducted several field tests on our home site and concluded that Mr. Duebendorfer’s assessment with respect to our home site was in error.”

Yet the narrative put forward by NRDC is this: Once the Sacketts received a cursory determination that their property was a wetland, the Sacketts not only should have put aside their well-reasoned belief that federal jurisdiction was lacking, they also should have immediately acquiesced when the Army Corps asked them to complete a Clean Water Act permit, which–oh, by the way–costs more than a pretty penny. This sort of account completely ignores what the Sacketts have in fact gone through and the realities of what landowners throughout the country put up with in their dealings with unaccountable bureaucrats.

What is particularly disturbing about NRDC’s false narrative is that the egregious compliance order over which PLF and the Sacketts sued the EPA has absolutely nothing to do with the half-truths NRDC submitted to the Supreme Court. To be clear, EPA’s draconian compliance order was based solely on the Sacketts’ home building activities that took place before EPA’s first visit to their property, not on the discussions that took place after the clearing of their property (discussion which, in any event and as explained above, gave the Sacketts’ reason to pause over the feds’ claim of Clean Water Act jurisdiction). And it is worth noting that it was EPA who effectively ended these discussions by ordering the Sacketts to remove fill material on their property or face $75,000 per day in Clean Water Act fines.

In the end, whether NRDC will continue to take events in the Sacketts ordeal out of context remains to be seen, but if it’s the only way hard left enviros can mislead the public, then I doubt this is the last time we’ll see this type of disinformation.

Getting back to Hurley’s article, it shows that–notwithstanding the Supreme Court’s unanimous pronouncement in Sackett–NRDC still believes that the federal government should able to capriciously intimidate property owners without fear of being held to account by a court of law. For a country premised on the principle of checks and balances, this is a truly scary thought.

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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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