Idaho wetlands case before the Supreme Court

In one of the most closely watched wetlands cases to come before the U.S. Supreme Court in decades, Mike and Chantell Sackett are facing off against the Environmental Protection Agency (EPA) over whether the couple has been denied due process by the agency. The Sacketts’ efforts to build a home in a residential neighborhood near Bonners Ferry, Idaho have been thwarted by EPA, which demands the couple apply for a federal wetlands-development permit under the Clean Water Act (CWA).

The half-acre lot the Sacketts purchased for their home in 2007 is located near, but not adjacent to, picturesque Priest Lake in northern Idaho. The couple obtained all local permits before they began clearing their land in preparation for constructing their home. Even though nothing on the property can be described as being wet – the lot contains no ponds, streams or marshes –, EPA contends the parcel is a federally designated wetland and subject to the expensive and time-consuming CWA wetlands permitting process. EPA ordered the couple to cease grading on the property in 2007.

In the belief the whole thing was some kind of bureaucratic misunderstanding, the Sacketts sought a hearing with EPA officials to clear up the matter. Among other things, they wanted to point out that the neighborhood in question is zoned residential and that their parcel is sandwiched between two other houses. With characteristic arrogance, EPA refused to grant the couple, whose federal taxes help support the agency, a hearing. The 9th Circuit Court of Appeals in San Francisco sided with EPA in a September 2010 decision. “We are not persuaded that the potential consequences from violating the CWA compliance orders are so onerous so as ‘foreclose all access to the courts’ and create a ‘constitutionally intolerable choice,’” wrote Judge Ronald Gould, a 1999 appointee of President Bill Clinton in his 14-page decision. (Washington Times, June 27, 2011)

The Idaho couple is being represented by the Pacific Legal Foundation (PLF). Damian Schiff, a senior attorney with the PLF, counters Judge Gould’s and EPA’s arguments by pointing out that the permitting process can cost up to $200,000 and can take years. Schiff argues that landowners confronted with a government land grab should be able to challenge the decision without facing exorbitant fees, long delays, and heavy fines. In the meantime, the Sacketts have been ordered by EPA to remove the gravel they had spread around the building site, replace the soil and native vegetation, and to wait three years until the property had returned to its natural state.

Unlike many wetlands cases that involve the alleged “taking” of a wetland by some form of human activity, the Sackett case focuses of due process. Were the Sacketts’ rights to a speedy appeal denied by EPA’s refusal to grant them a hearing? “It makes you feel very bitter. Every time we pay taxes, it makes you all the more bitter,” Mr. Sackett told the Washington Times. “Because you are paying taxes to have somebody bully you and tell you what you can’t do with your own land.”

The Sackett case has garnered nationwide attention. Lou Dobbs of Fox Business Channel has taken up the cause of the Idaho couple by interviewing them, their attorney, and their congressman, Raul Labrador (R) on his nightly broadcast. Dobbs has challenged EPA to send a representative on his show, but the agency has not taken him up on his offer. Ten governors have written amicus briefs in support of the Sacketts. Interestingly, the couple’s own governor, Butch Otter (R), is not among those submitting an amicus brief. This has not escaped Dobbs’ attention, and the television and radio personality has challenged the Idaho governor to come on his show and explain his position. Like EPA, Otter has declined the invitation.

Arguments from both sides are to be made before the Supreme Court either later this year or early next year. A ruling on the case by the High Court is expected sometime in 2012.

In a video released by PLF, Chantell Sackett says of EPA: “I think they are ungovernable. I think they do whatever they want.” “Even if we lose,” she adds, “if this could help somebody down the road, more power to them.”

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About the Author: Bonner Cohen, Ph. D.

Bonner Cohen, Ph. D.

Bonner R. Cohen, Ph. D., is a senior policy analyst with CFACT.