October 18, 2011

What the Priest Lake wetland case is REALLY actually about

By What the Priest Lake wetland case is REALLY actually about

Author: Anne Hayes

Last week, an online discussion thread at the Spokane Spokesman Review had a link to a blog post from the Kootenai Environmental Alliance titled “What the Priest Lake Wetland Case is Actually About.” In it, the author, Terry Harris, attempted, theoretically, to clarify what our case, Sackett v. EPA, is all about.

Unfortunately, however, his explanation fell considerably short of doing that. Not only do those of us at Pacific Legal Foundation feel Mr. Harris (we will assume it is a “he”) simply muddled the issues further, but the commenter at the Spokesman Review appears to agree with us: after linking to Mr. Harris’ blog, he posed: “Question: I’m still not sure I understand all this. How about you?” None of the other commenters could enlighten him.

So we thought maybe we could help Mr. Harris and anyone else who might be confused.

First of all, we should acknowledge that Mr. Harris is accurate in pointing out that there is some confusion about what is at stake in the case, and the first three paragraphs of his blog post are somewhat headed in the right direction. But the supposed clarification falls apart from there.

Put simply, the question in the case is this: do landowners have a pre-enforcement right to a hearing before the EPA can regulate their property as wetlands? In other words, the Sacketts would like EPA to prove, with, you know, actual evidence, that their property is indeed a wetland before they have to do everything the EPA tells them to do.

Let’s be clear: to date, the EPA has provided no evidence at all that the land in question is a wetland. Zilch. Nothing. Zip. Nada.

And yet the law, as it stands, holds that, not only does EPA have no obligation to prove anything, EPA can nevertheless force the Sacketts to remove all the fill gravel, replant vegetation, wait three years while their property returns to nature, and then require them apply for a permit that will likely cost them upwards of $250,000 before the Sacketts can even question their authority. Nice, huh? King George would be proud.

Not difficult to understand, really, if you actually just say it. But Mr. Terry didn’t. So we would like to address just some of the more glaring problems with his analysis.

To begin, we are puzzled with Mr. Terry’s sentence “The case does raise an interesting question of fairness and ‘due process’ perhaps.” The case is, indeed, interesting—interesting enough for the United States Supreme Court to take up the case after five different circuits have ruled the same way over the last 20-odd years on just this issue. As for the “due process” aspect, that is “perhaps” why the Supreme Court, in its grant of certiorari, told the parties that one of the questions they want addressed is:

does petitioners’ inability to seek pre-enforcement judicial review of the administrative compliance order violate their rights under the Due Process Clause?

It is hard to imagine a more pointed indication that the case definitely raises an interesting due process issue—well, for the Supreme Court, at least, if not for Mr. Terry.

Accordingly, if we are to take the “due process” question seriously, Mr. Terry’s “imperfect analogy” that the Sacketts’ petition is tantamount to asking for a trial before a cop issues you a speeding ticket (as opposed to after the ticket is issued) is not simply “imperfect,” it is completely, utterly, and laughably inapt.

The Sacketts are, at this very moment, subject to an EPA Compliance Order. That order has been issued, and violation of the order carries with it the potential for civil and criminal liability. Thus, the Sacketts are not asking for a hearing before the “ticket” has been issued, they are essentially asking whether they are entitled to dispute the “ticket” after it has been issued, but before they have to pay fines, go to traffic school, have their driver’s license revoked, or go to jail. You see, when fines are in the hundreds of thousands or millions of dollars, one would think that most people would kind of like to know now, before they must pay, whether they are, in fact, actually liable for the violation.

What is more, as the law currently stands, if you later dispute this “ticket” and win, you don’t get a refund of all the money you paid in.

So, while it is true that a win by the Sacketts will not “bring down the whole EPA,” it is an “important case,” as Mr. Terry acknowledges, not merely because “other federal statutes are structured similarly,” but because the inability to obtain pre-enforcement review has given EPA tremendous power to act with impunity, regardless of justification.

As the U.S. Chamber of Commerce’s amicus curiae brief detailed, the EPA trains its enforcement officers to make Compliance Orders as threatening and intimidating as possible in order to coerce compliance rather than invite questions about EPA’s authority. Under that regime, it does not take much imagination to appreciate just how powerful a tool these Compliance Orders have been for the EPA in extorting significant fines and “wetlands mitigation” even where a landowner may be entirely in the right.

A favorable court decision for the Sacketts would entitle landowners to a forum in which EPA must justify its actions before it may call down upon landowners the full force of the federal government’s enforcement and prosecution powers. Thus, the case is not just about, as Mr. Terry tries to downplay it, a “difficult procedural point,” a “structural legal problem in enforcement,” or “a fine point of Clean Water Act enforcement procedure,” but about whether the EPA will be able to continue to use thug tactics against American citizens to pursue whatever ends it wants against whomever it chooses whenever it feels like it. For those who have experienced this EPA juggernaut, this is not an exaggeration. “Perhaps” that is why 10 states and over 20 different entities filed briefs in support of the Sacketts.

Finally, we want to acknowledge that we are happy to be labeled as “ideologically driven” in this case by the Kootenai Environmental Alliance, which we are to presume, we suppose, is not itself “ideologically driven” at all. Yes, indeed: we at Pacific Legal Foundation actually believe that the United States government—even the EPA—should not be allowed to violate the constitutional rights of American citizens.

Update: it appears our post here may be superfluous. After reading the comments of others on KEA’s blog, KEA’s attempt at misleading others has not worked out very well.

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