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A plea to ease challenges of EPA orders

Couple’s home fight has strong support

- Associated Press - Monday, January 2, 2012

Mike Sackett remembers what he thought when he saw the eye-popping fines of more than $30,000 a day that the Environmental Protection Agency was threatening to impose on him over a piece of Idaho property worth less than one day's penalty.

"If they do this to us, we're going to lose everything we have," Mr. Sackett said.

The EPA said that Mr. Sackett and his wife, Chantell, illegally filled in most of their 0.63-acre lot with dirt and rocks in preparation for building a home. The agency said the property is a wetlands that cannot be disturbed without a permit. The Sacketts had none.

They say they considered walking away from the property, near scenic Priest Lake, and a difficult fight with the federal government. Instead, they went to court and now the Supreme Court is hearing their case, with implications well beyond their property.

The justices are considering how and when people can challenge the kind of order the Sacketts got. The EPA issues nearly 3,000 administrative compliance orders a year that call on alleged violators of environmental laws to stop what they're doing and repair the harm they've caused.

Major business groups, homebuilders, road builders and agricultural interests all have joined the Sacketts in urging the court to make it easier to contest EPA compliance orders issued under several environmental laws.

General Electric Co., which failed to persuade the court to hear its challenge to a similar feature of the Superfund hazardous waste site law, says the justices should use the Sacketts' case to make clear the government must "provide a timely and meaningful hearing" before companies and individuals are forced to take expensive measures ordered by the EPA.

Environmental groups say a purpose of the orders is to make it easier to negotiate a resolution without a protracted legal fight. "These orders are an important tool for EPA and states to facilitate prompt remedies for real and serious environmental harms that are ongoing," said Lawrence Levine, a senior attorney with the Natural Resources Defense Council.

On the surface, the Sacketts seem to present a compelling saga of the little guy falling victim to abusive federal regulators.

The Sacketts stopped by the Supreme Court on a visit to Washington to publicize their case in the fall. Arguments are set for Monday.

"There's no common sense, and the EPA, they've gone rogue," Mrs. Sackett said in an interview in the court cafeteria. "They do whatever they want. They bend the rules and they make your life hell."

The Sacketts said they had no reason to suspect there were wetlands on their property.

They paid $23,000 for their property in 2005. Their excavating business was doing well in the middle years of the decade and by early 2007, they decided the time was right to build a modest three-bedroom home.

Their employees spent three days filling in just under a half-acre of land. The next step was to begin pouring the foundation.

Then, three EPA officials showed up, said they believed the land was wetlands, asked for a permit and told the workers to stop. Six months later, the EPA sent the order that triggered the court case.

Mr. Sackett says someone must have tipped off the EPA to the work.

But the Natural Resources Defense Council has produced documents that suggest the Sacketts have left out important parts of the story.

The documents, obtained from the U.S. Army Corps of Engineers under the federal Freedom of Information Act, show that the couple disregarded the opinion of a wetlands expert they hired to evaluate their property. The Sacketts also passed up an offer from the Army, which shares jurisdiction over wetlands with the EPA, to seek a permit that might have allowed work to continue on the site with little delay, according to the NRDC.

Tom Duebendorfer, a biologist who specializes in wetlands, confirmed that he advised the Sacketts in May 2007 that their property was a wetlands and that there were wetlands on three sides of their land. The Sacketts say that in 2010, other wetlands consultants examined their land and concluded Mr. Duebendorfer was wrong.

"I maintain they were wetlands," said Mr. Duebendorfer, who says he has worked in the Pacific Northwest for 35 years.

He also said it would have been relatively easy and inexpensive for the Sacketts to fill out what is called an "after-the-fact" permit with the Corps of Engineers that is intended for situations like the Sacketts'.

Mr. Levine, the NRDC attorney, said the permit is "meant for the little guy."

Such a resolution could have avoided the court case that has followed.

Damien M. Schiff, the attorney representing the Sacketts for free, said the case is no longer about the environment. "Really all we want now is for the Sacketts to get their day in court," Mr. Schiff said. He works for the Pacific Legal Foundation in Sacramento, Calif., a public interest law firm that focuses on property rights.

The Sacketts won a lottery of sorts when the high court decided in June to hear their case. But the past few years have otherwise been difficult.

The recession has had a deep impact on the Sacketts' excavation business. The company's payroll has declined from 40 employees to 25, Mr. Sackett said. In late 2010, the business filed for Chapter 11 bankruptcy protection.

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