December 16, 2010

Sacketts just asking for their day in court

By Sacketts just asking for their day in court

Author:  Anne Hayes

Early this morning, PLF clients Mike and Chantell Sackett had the opportunity to tell the American public about their story of abuse at the hands of EPA bureaucrats, when Fox and Friends co-anchor Steve Doocy interviewed them in his “It’s Your Land” feature.



Watch the Fox and Friends interview

Just what is going on here? When the Sacketts started to do ground-prep work on their lot in the Spring of 2007, EPA regulators marched in and issued stop-work orders to the contractors, under threat of fines.  EPA then visited the Sacketts, who were at work running their small business, and handed them a Compliance Order.  The Order, as EPA explained, “require[d] fill to be removed, wetland soil returned, and the site replanted with wetland vegetation no later than April 30, 2008, or pay fines as high as $32,500 per day.”

The only problem is, this little plot of property was not a “wetland”—none of their neighbors had needed a wetlands permit, and none has ever been subject to similar compliance orders.  So the Sacketts thought they could just clear this up.  No soap.  Under current law, you cannot get a determination of whether or not your land is a “wetland” subject to Clean Water Act regulation unless and until you submit to regulatory authority, apply for a permit, and see the process through until you receive the permit or a denial of your permit—a process which can take up to two years and cost several hundreds of thousands of dollars.  In other words, you can go broke just trying to get your foot in the courtroom door to argue that you never should have been regulated in the first place! 

By the way, EPA can do this to anyone—even if you live in the desert.  If you cannot argue that you have no wetlands until you go through the permitting process, it does not matter whether you have wetlands or not.  The agency has authority when they say they do: period.  This sounds like, and is, an invitation to regulatory abuse, as so many landowners have found out to their dismay.

In the meantime, in the case of the Sacketts, they have to pay taxes on the property and, because of the Compliance Order, EPA is saying that they cannot even apply for a permit until they have waited three years for the property to return to its “natural” state.

To anyone with a sense of justice, something is horribly wrong here.  That is why PLF is fighting to change this court-created regime, arguing that forcing someone to submit to regulatory authority when a regulatory agency has not even proven that it has authority violates due process rights guaranteed in the Constitution.  Americans should not have to pay to be treated guilty until they prove themselves innocent.

Right now, PLF is preparing a Petition to the Supreme Court, asking them to take the Sacketts' case.  PLF is actively seeking amicus support for this petition, since so many other landowners have faced this same regulatory nightmare, and so many more are going to face it if the EPA is not stopped now.

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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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