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Mon October 31, 2011
Idaho couple puts wetlands rules to the test in U.S. Supreme Court
PRIEST RIVER, Idaho – A fight over less than an acre of land in a remote part of the Northwest could alter the way the government enforces environmental regulations across the country.
The U.S. Supreme Court this winter will hear a case brought against the EPA by Mike and Chantell Sackett of north Idaho.
The house Mike Sackett wants to build is a rustic, three-bedroom A-frame, with views of Priest Lake and the rugged landscape that surrounds it.
But Chantell and Mike Sackett's .63-acre plot is still dirt and gravel, the same as it's been since work came to a halt four years ago. And their plans now hinge on the nation’s highest court. It’s not what Chantell imagined the day she purchased a lot in a subdivision for her husband.
“Yeah, I thought I was going to surprise him. Boy did I ever,” she said.
Is it a wetland?
In May of 2007, as workers prepared to dig footings for the house, three people visited the Sacketts’ lot – two officials from the Environmental Protection Agency and one from the Army Corps of Engineers. They later told the Sacketts the couple was building on a wetland.
The Sacketts stopped work and Chantell says she got on the phone with someone from the EPA.
“She said, 'Well it's in the National Wetland Inventory.' And I said, 'OK, what's that?' So, she said, 'Well you can go online and look at it and here are the coordinates.' And the coordinates were not in a wetlands," according to Chantell Sackett, "I said, 'We're not in a wetlands. It doesn't show it.' And she goes, 'Well, the Wetlands Inventory isn't always correct.'”
The online National Wetlands Inventory in fact does show what appears to be the Sacketts' lot in a wetland ... though not all of it, and not at the exact registered address. Mike Sackett says he hired experts to look at the property and they determined it wasn't a wetland at all.
Fight is over due process
However, the nine justices of the Supreme Court won't be hearing about soil samples and hydrology. The Sacketts' case isn't about whether or not their property is in a wetland. Mike and Chantell Sackett say they never had a chance to argue that point. Theirs is a case of due process.
Essentially, it comes down to this exchange:
Chantell Sackett: “I said, 'So why would I stop building my house?' and she said, 'Because we told you to.'
That’s why what the U.S. Supreme Court decides has implications well beyond the Sacketts’ half-acre. For that, we turn to my colleague Elizabeth Wynne Johnson ...
Role of EPA in question
The EPA headquarters in Washington, D.C., are elegant neoclassical buildings that stretch for several city blocks. No one inside the agency will comment on Sackett versus EPA. But plenty of others will.
Environmental groups want to preserve the EPA’s ability to enforce the Clean Water Act. Corporations want to rein in an agency that many see as arbitrary and out-of-control.
"This case involves the EPA’s ability to issue an order that essentially deprives the property owner of the value of the property," said attorney Rachel Brand, co-author of a ‘friend of the court’ brief for the U.S. Chamber of Commerce, one of more than a dozen briefs filed in support of the couple from Idaho.
"When the EPA issues an order against a business or an individual, the EPA really has the power. What we’re arguing is that, whether it’s a corporation or a person, they should have their day in court," she said.
Open door to paralysis?
But if every action can immediately go to court, enforcement can grind to a halt. That’s what makes conservation groups nervous.
Professor Robert Glicksman of the George Washington University School of Law in D.C. doesn’t have any direct role in this case. But as an expert in environmental law, he’s been following it closely.
He says in this battle, Mike and Chantell Sackett are the obvious “David” to the EPA’s “Goliath.” But as Glicksman sees it, the precedent set in this case would allow the ‘Goliath’ corporations to bring lawsuits, just as it allows the Sacketts of the world to bring this lawsuit.
And that, in turn, "could have an impact upon the degree to which wetlands are protected – with important ecological implications," he said.
When it comes to litigation strategy, casting counts. The Supreme Court passed on a similar case brought by corporate giant GE. Glicksman says the most compelling way to challenge a federal regulation "is to pick a sympathetic plaintiff – which would tend to be a small landowner as opposed to a multi-million dollar corporation."
Cue the Sacketts.
Glicksman says when Congress authorizes agencies to enforce statutes administratively, it’s with the idea that the agency has the expertise, not courts.
For now, fines imposed by the EPA on the Sacketts continue to pile up.
Every day the Sacketts don’t put the land back the way they found it, they accrue a $37,500 fine. If the EPA actually collects, the couple estimates the fines would add up to more than $44 million.
Nonetheless, the Sacketts insist they believe in the EPA and laws that protect clean air and waterways – it’s just this time, Chantell Sackett says, the agency has gone too far.
“So, right now, I look at this as a big huge fight, I guess. Yeah. Something that's right though. Eventually the right thing is going to happen here. There's going to be a house here,” Chantell Sackett said.
In between the Sacketts' land and their neighbor's, a small stand of cattails recently appeared. It's a reminder that even if Mike and Chantell prevail in Sackett versus EPA, their battle over whether their dream house is in a wetland still may not be over.
Copyright 2011 Northwest News Network