- The Washington Times - Sunday, June 26, 2011

When Mike and Chantell Sackett bought a half-acre lot in the Priest Lake area of Idahos Panhandle, their plan was to build a home in which they could raise a family.

Four years later, there’s still no house on the lot. What the Sacketts have built instead is a high-stakes legal challenge against the Environmental Protection Agency over its enforcement of the Clean Water Act.

After the Sacketts began grading the dirt lot in 2007, the EPA ordered them to stop, saying that their parcel was in fact a federally designated wetland and that by filling it, they had violated the Clean Water Act. Given that the property was sandwiched between two houses in a residentially zoned neighborhood, the Sacketts assumed they could go to the agency and clear up what they were sure was a mistake.

Nothing doing. EPA officials refused to grant the Sacketts a hearing and instead told them to apply for a wetlands-development permit, a process that could drag on for years and cost more than the value of the land itself. They were also ordered to return the property to its original state or face tens of thousands of dollars in fines.

“They’ve stopped our life for [four] years … . I just think they’re bullying us,” said Mrs. Sackett in a video produced by the Pacific Legal Foundation in Sacramento, Calif., which represents the couple. “I think they’re ungovernable. I think they do whatever they want.”

Damian Schiff, PLF senior lawyer, said the issue at stake is whether the EPA has violated the Sacketts’ due-process rights by refusing to grant them a prompt appeal. A landowner hit by a government “land grab” should be able to challenge the decision without facing exorbitant fees, lengthy delays or ruinous fines, he said.

The couple’s last hope lies with the Supreme Court. The high court heard the couple’s petition last week and could decide as early as Monday whether to take the case.

While the Sacketts obtained the necessary local approvals before starting the project, they never suspected that their lot would require an EPA permit. The parcel is located near the shores of Priest Lake. It hardly fits the description of a wild and untamed wetland. It’s not adjacent to the lake, and nothing on the property can be described as wet.

“There’s no question that they’re not building in the middle of nowhere. They’re building in an existing residential neighborhood. They even had a sewer hookup,” said Mr. Schiff. “There’s no running water or pond on the property.”

Why the EPA decided to focus on the Sacketts’ house-building plans remains something of a mystery, although they suspect that a neighbor opposed to their developing the property may have called the agency.

“Part of the frustration is that if they could just get the EPA to grant them a hearing, they could explain. But so far they haven’t been able to get a hearing,” said Mr. Schiff. “And the court says the EPA doesn’t have to give them a hearing.”

The federal 9th Circuit Court of Appeals rejected the Sacketts’ claim in September, ruling that the Sacketts have adequate avenues of judicial relief. The court noted that couple may apply for a permit under the Clean Water Act, and if denied, they may appeal to a district court.

“We are not persuaded that the potential consequences from violating the CWA compliance orders are so onerous so as to ‘foreclose all access to the courts’ and create a ‘constitutionally intolerable choice,’ ” wrote Judge Ronald Gould, a 1999 appointee of President Clinton, in the 14-page opinion.

Mr. Schiff counters that applying for a permit and then being rejected could cost as much as $200,000, based on figures cited in a previous court case. The process isn’t speedy: The Sacketts were told they would need to remove the gravel from their land, replace the soil and native vegetation, then wait three years for the property to return to its natural condition.

The entire ordeal has made the Sacketts cynical about government.

Story Continues →