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EPA hunting bullfrogs with shotgun in Sackett case

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  • The EPA has 17,000 full time employees and approximately an $8.4 billion budget. It also has a fondness for hunting bullfrogs with a shotgun.

The EPA has 17,000 full time employees and approximately an $8.4 billion budget. It also has a fondness for hunting bullfrogs with a shotgun.

Case in point: Mike and Chantell Sackett began building on "waterfront" property at Priest Lake, Idaho, in 2007. Their lot was less than a single acre (.63), bordered by other residential properties, and 500 feet from the water. As they were laying gravel and grading the property, EPA officials arrived, claimed they were acting on an anonymous tip, and declared the location a “wetland without a federal permit.” Essentially, EPA issued a compliance order directing the Sacketts to restore the site to its previous condition.

The order demanded they “remove all fill, replace any lost vegetation, and monitor the fenced-off site for three years,” or else face “great cost” and a “threat of civil fines of tens of thousands of dollars per day, as well as possible criminal penalties.” The fines in the Sackett case ranged up to $37,500 per day.

For average Americans, EPA compliance orders carry the weight of law because options are, well, extremely limited. The lucky recipients of a compliance order basically have two choices: (1) They can obey the EPA and comply. In the Sackett case, the cost of cleanup and restoration would have exceeded the $23,000 they had originally paid for the property. (2) The other choice is to force the EPA’s hand and wait for a suit. This option comes with a kicker for the property owner — the daily EPA fine meter ticks on until the court date comes.

If the landowners choose door No. 2, the EPA can bleed them dry: little bit of paperwork, little dab of lawyering, little incident of lost files, little spot of miscommunication — and bang, presto, the court date finally arrives after a mountain of fines have stacked up. Lovely. (The Sacketts currently owe the EPA close to $40 million.)

The Sacketts are demanding a door No. 3. They are asking for a third option: Let us fight the compliance order without waiting for a court date or EPA enforcement.

Following failure to gain an ear in two lower courts, the Sacketts gained a foothold in June of 2011 when the Supreme Court agreed to hear their case. Scheduled on the docket as the Court’s first hearing of 2012, oral arguments have already ended and a ruling is expected this summer.

However, the black robes in D.C. will not be deciding on whether the Sacketts get to have a dream house on Priest Lake. Rather, the Supreme Court is considering a far heavier question:  Can a property owner fight an EPA compliance order without having to wait on the EPA?

It’s true that under the Clean Water Act, the EPA is responsible for conserving U.S. wetlands. But the Sackett case is not about pollution or environmental damage; it’s not even about wetlands — that was a sideshow. It’s about due process and the simple rights of American citizens.

Hey, put it all on the table: the Sacketts have General Electric and the American Petroleum Institute in their corner. True enough. Big business has a keen eye on the Priest Lake property battle because implications and precedents for future court battles are on display. EPA is scared to loosen its grip on the Sacketts — that might open the door to all sorts of litigation from all sorts of companies.

The case certainly has its cloudy elements; both sides are contesting who knew what and when. But at the end of the day, it appears EPA would rather sacrifice the Sacketts than admit that something smells odd: Let's make the common man bow to the bureaucracy right or wrong. In a battle with reason, EPA has bound regulation, judicial review, due process and bureaucracy into a Gordian knot that desperately needs to be cut.

Since 2007, when the Sackett saga began, how much U.S. money has EPA spent on the case? How many millions in American taxpayer dollars will EPA burn up in pursuit of the Sacketts? No wonder EPA needs an $8.4 billion budget.

Discuss this Blog Entry 5

grs (not verified)
on Jan 24, 2012

Or the Sacketts could have filed for their quick permit and this never would have been an issue. Don't get mad at the EPA for enforcing the law. Get mad at the people who can't follow the law and are now costing taxpayers money with an industry backed lawsuit. The fines against the Sacketts never hit $37.5K a day. Those are maximum fines and they were never imposed.

People who run an excavation company who try to claim ignorance about issues regarding filling in wetlands? Then they have a wetland delineation done on the property and still try to claim their getting hammered. These people got busted and turned it into a pissing match. The EPA and Corps of Engineers gave opportunities to the Sacketts to rectify matters. Sacketts refused to file for permits. The situation is not how you imply - that the EPA came in on Day 1 and started levying fines. There was a process. The Sacketts refused to comply. What else do you want?

The more curious turn is when big industry started backing them and who approached who regarding financial backing.

Anonymous (not verified)
on Feb 4, 2012

why would you spend thousands of dollars on a permit you dont need? not to mention weeks of red tape in dealing with the government, no they did the right thing, epa needs to use common sense approach to things. if you got a speeding ticket and the officer said you where doing 56 in a 55 mile an hour zone would you complain? you would be furious, go back to your loft apartment, sip your starbucks, and get ready to plan your birdwatching groups next trip!

Anonymous (not verified)
on Feb 17, 2012

Sure there was a 'process' - one conceived by the EPA. The problem is that as citizens, we are owed due process, not an arbitrary process handed down by a government agency. That is the entire point of the case.

I do agree that it is a pissing match. The EPA operatives that are deciding to take this on are ruining what little good is left of the organization - protecting the environment and water supplies from *real* threats.

Moses (not verified)
on Jan 24, 2012

The EPA tried to tell me that property my company owns, in Georgia, is "wetlands", even though there has never been a flood in the area since before the EPA was ever founded. State officials agree that our property is in no way considered, by the state to be wetlands, but the EPA insists that they are right. The EPA got a rude awakening, when they tried to enforce their order. After all, how do you tell a railroad company, that property it has used for over 30 years, is now "Wetlands"? Even Uncle Sam won't mess with railroads.

Anonymous (not verified)
on Jan 25, 2012

The Sackett case is proof that we live in the land of the free---We're free to do as we are told!!!

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