Supreme home makeover?

Source: Bloomberg/Businessweek

Mike and Chantell Sackett vs. the EPA
The couple wanted to build a picturesque Idaho home. Instead they were accused of building on a wetland. Now the Supreme Court will hear their case.

When Mike and Chantell Sackett paid $23,000 for a lot near the banks of Priest Lake in northern Idaho in 2005, they thought they were buying the site for a picturesque new home. They got a lot more: a long feud with the Environmental Protection Agency and now a Supreme Court case that could bolster the rights of landowners facing costly demands from the federal government.

Four years ago the Sacketts were filling in their lot with dirt and rock, preparing to build a simple three-bedroom home in a neighborhood where other houses have stood for years. Then three federal officials showed up and demanded they stop construction. The agency claimed the .63-acre lot was a wetland, protected under the Clean Water Act.

The Sacketts say they were stunned. The owners of an excavation company, they had secured all the necessary local permits. And Chantell Sackett says that before work began, she drove two hours to Coeur d’Alene, Idaho, to consult with an Army Corps of Engineers official. She says the official told her orally, though not in writing, that she didn’t need a federal permit. “We did all the right things,” she says.

The EPA issued an order requiring the Sacketts to put the land back the way it was, removing the piles of fill material and replanting the vegetation they had cleared away. The property was to be fenced off and the Sacketts would be required to submit annual reports about its condition to the EPA. The agency threatened to fine them up to $32,500 a day until they complied.

The Sacketts instead tried to get a hearing in federal court, seeking a declaration that their property wasn’t a protected wetland. The plot is not connected either to the lake or a nearby creek, though Mike Sackett, 45, says part of the land got “wet” at times in the spring. “We sued because we wanted our day in court to say, ‘This is not a wetland,’ ” he says. Two lower courts turned the couple away, saying they could not make that argument until the EPA asked a federal judge to enforce the order. That left the Sacketts in limbo. Restoring the property as the EPA demanded made no sense to them. It would cost hundreds of thousands of dollars, they say, and if they ultimately won the case they’d have to clear the land a second time. But defying the order potentially meant racking up $32,500 in fines each day—and perhaps criminal liability if they continued with construction—while they waited for the EPA to decide whether to pursue the case. “It’s an unenviable choice,” says Damien M. Schiff of the Pacific Legal Foundation, a Sacramento-based property rights group that is representing the couple for free. “It’s really almost no choice at all.”

The Sacketts appealed to the Supreme Court, asking for the right to go straight to a federal judge. The high court agreed to hear the case in its fall term. It is being watched closely by environmentalists and property rights activists because of its potential scope. A ruling in the Sacketts’ favor would blunt one of the agency’s favorite enforcement tools. Each year it issues up to 3,000 “administrative compliance orders” to businesses and individuals, demanding an end to alleged environmental violations and applying enough pressure that those who are accused typically give in before the agency has to justify the action before a judge.

“The compliance order tool is one of a few mechanisms that EPA has to resolve, and resolve quickly, pollution problems,” says Jon P. Devine, a senior attorney with the National Resources Defense Council. The EPA argues the rules are reasonable. While fines may accrue, they won’t actually be assessed until the Sacketts have a chance to make their case to a judge, it says. Agency officials declined to be interviewed.

In taking on the case, the high court told the two sides to discuss in their filings whether the EPA’s procedures are so unfair that they violate the Sacketts’ constitutional right to due process. A ruling in favor of the landowners on those grounds would reverberate beyond the EPA, potentially forcing both state and federal agencies to seek court permission before trying to enforce rules.

Some environmental advocates believe the agency made a mistake in letting a case with such appealing plaintiffs reach the Supreme Court. The Sacketts haven’t dared to touch their land since the dispute began. Their dream house is on hold; they live in a rental nearby. It’s a problem for the EPA that the Sacketts “feel like the mom and pop who are getting the heavy hand of government brought down on them,” says Catholic University law professor Amanda Cohen Leiter, who sides with the agency. “I can imagine the court being sympathetic to these particular plaintiffs and issuing … an overbroad ruling as a result.”


The bottom line: The Supreme Court could turn a minor land dispute between an Idaho couple and the EPA into a far-reaching case on government power.

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