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Supreme Court takes up property rights dispute

In a cause celebre for the right, an Idaho couple seeks a hearing on an EPA warning that a dry lot for their dream home is protected 'wetlands.'

January 03, 2012|By David G. Savage, Washington Bureau

Reporting from Washington — Mike and Chantell Sackett wanted to live on scenic Priest Lake in Idaho but couldn't afford it. So they bought a residential lot across the road that offered a distant view of the water, clearing the land and laying gravel.

But instead of building their dream home, the Sacketts found themselves enmeshed in a four-year legal battle with the Environmental Protection Agency over whether their dry lot is a protected "wetlands" and possibly off-limits for building.

Next week, the Supreme Court will take up the Sacketts' case, not to redefine wetlands but to decide whether landowners are entitled to a hearing before a judge when they are confronted by the EPA. The case is being closely watched by developers and environmentalists.

Under the EPA's rules, dry lots and open fields can qualify as protected wetlands if they are wet sometimes or situated near a stream or lake.

In November 2007, the Sacketts were given an "administrative compliance order" by three EPA officials telling them they must stop work, remove the gravel and "restore" the land by adding new plants suitable for a wetland. If they maintained the land in its natural state for at least three years, they were told, they could then seek a permit to build, a process that would cost about $200,000.

"We were blindsided," Mike Sackett said. "And if we didn't comply, we were subject to fines of up to $37,500 per day."

Stymied, the Sacketts sought a hearing to contest the EPA's order. They insisted the half-acre lot, which they had bought for $23,000, was not wetlands. But their hearing request was turned down by a federal judge in Idaho and by the 9th Circuit Court of Appeals in San Francisco.

Agreeing with the EPA, the judges said the compliance order was like a warning to the landowners that they were violating the law. They weren't entitled to a hearing under the law until the agency had imposed a fine on them, the appeals court said.

That offered no solace to the Sacketts. They were in an "impossible situation," their lawyer said: Do nothing with their lot for three years, or start building and face potential fines running into millions of dollars. They chose instead to appeal to the Supreme Court, which will hear the case Monday.

The case has become a cause celebre for the right, which is depicting the EPA as an out-of-control agency. The Idaho couple appeared three times on the Lou Dobbs program in 2011 and testified at an October hearing organized by Sen. Rand Paul (R-Ky.) to explore the "government's assault on private property."

"We need to take the government back from unelected bureaucrats," Paul said at the hearing.

The Pacific Legal Foundation, which defends property rights, is handling the Sacketts' case. "When the government seizes control of your land, shouldn't you be allowed your day in court?" asked Damien Schiff, the foundation lawyer who represents the Sacketts.

The Constitution says no one may be "deprived of life, liberty or property without due process of law," and the Sacketts say they were entitled to a hearing before a judge before they were denied the full use of their property.

EPA officials decline to talk about the case because it is before the court.

Some environmental lawyers fear a decision in the couple's favor could undercut the agency's ability to stop polluters. The EPA issues as many as 3,000 compliance orders a year. For example, if a mine or factory were discharging toxic chemicals into a river, the EPA could issue a compliance order telling the owner to halt the discharges immediately or face daily fines for violating the Clean Water Act.

A victory for the Sacketts could "undermine the government's ability to promptly respond to environmental threats," said Nina Mendelson, a University of Michigan law professor and former Justice Department lawyer. But she also said the EPA should consider allowing administrative hearings in cases, such as that of the Sacketts, that do not involve pressing environmental threats.

In defense of the EPA, the Justice Department argued the Sacketts were not entitled to a "pre-enforcement hearing" under the law. The Sacketts "face a dilemma largely of their own making, since they discharged fill into wetlands without first seeking a permit or consulting EPA," the government's lawyers told the high court.

It remains unclear why EPA officials were convinced the Sacketts lot was a wetland. One part of the lot is bordered by cattails, and it is wet sometimes during the year, Mike Sackett reported. But he also said no water flows from his land to the lake, which is about 500 feet away and across a road. Contradicting the Sacketts, an environmental group says the couple were warned in advance their lot had a wetland.

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