Couple’s case against EPA to be heard

Can’t build on property in Idaho designated as wetland by agency

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Mike and Chantell Sackett are still waiting to be heard by the Environmental Protection Agency, but now they’ve got a hearing before the U.S. Supreme Court.

The high court agreed Tuesday to add the Idaho couple’s case to its docket for the term starting in October. The Idaho couple has argued that the EPA effectively seized their land after ordering them to stop building a house on their half-acre lot in the state’s arid panhandle because it was a federally designated wetland.

The legal issue at hand is whether the agency denied the Sacketts due process by placing unreasonable hurdles in front of their efforts to obtain a prompt review.

“We’re very encouraged that the Supreme Court has recognized how important our case is,” said Mr. Sackett in a statement. “We are standing up against an agency that seems to have unlimited resources and few if any limits on what it can do to property owners.”

Four years ago, the Sacketts were slapped with a compliance order stating that they had violated the Clean Water Act because their parcel is classified as a protected wetland. The couple was ordered to stop grading their property and return it to its original condition or face steep fines.

While the land is located near Priest Lake, the dry, dirt lot is zoned for residential use, sits between other houses in a suburban neighborhood, and has a sewer hookup. When the Sacketts tried to explain this to EPA officials, they were told that they would need to apply for a wetlands development permit in order to receive a hearing.

But the permit application process proved to be time-consuming and expensive. Damien Schiff, the Sacketts’ attorney, estimates the cost could be more than $200,000 - or more than the value of the property itself.

The Sacketts took their case to court, but the 9th Circuit Court of Appeals sided with the agency in September, ruling that the family had a sufficient avenue of appeal and that the permitting process was less onerous than described.

Allowing violators to challenge compliance orders quickly would also run counter to EPA’s efforts to protect the environment, said the court.

Said Judge Ronald Gould in his opinion: “The goal of enabling swift corrective action would be defeated by permitting immediate judicial review of compliance orders.”

While spending $200,000 may be a reasonable sum for large companies or wealthy individuals, it places an unreasonable burden on average citizens like the Sacketts, said Mr. Schiff.

“The 9th Circuit’s ruling against the Sacketts amounted to putting a $200,000 price tag on their right to pursue justice,” said Mr. Schiff, a senior attorney with the Pacific Legal Foundation in Sacramento, Calif. “If they can’t get judicial review of the EPA’s land grab without going through a costly, and probably futile permitting process, then for all intents and purposes, they have been denied their day in court.”

Mr. Schiff added, “Charging property owners a sky-high admissions fee to get into court isn’t just wrong, it’s flat-out unconstitutional.”

The Sacketts, who are still waiting to build their house, said they hope the case will help other property owners who have been cut off from their land.

“We’re standing up for everyone’s right to go to court when the government hands you a raw deal - or takes over your hard-earned property,” said Mr. Sackett.

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