Thursday, January 12, 2012

The EPA Is All Wet

What you're looking at is what the Environmental Protection Agency arbitrarily declared a "wetland." Do you see any water? Do you see any water fowl? Do you see anything that would indicate to you that this land should be left untouched in order to protect the ecosystem? No? Well, either did the Sackett family when they bought the property to build their dream home in Priest Lake, Idaho.

But the EPA saw an environmental disaster in the making, and stopped the Sacketts cold. The couple had graded away those piles of dirt you see in the picture, and had started to lay the foundation for the house after obtaining all the necessary permits. And just as they were putting up the first wooden support beams, the Environazis arrived with a restraining order, informing the Sacketts that they were building on protected wetlands.

Since this is a followup article, you can read all the pertinent facts here: EPA Brings The House Down--Literally. As of that writing, the Sacketts had lost their battle with the EPA at the Ninth Circuit Court of Appeals (the most-reversed court in America). In June of last year, the Pacific Legal Foundation, on behalf of the Sacketts, petitioned the US Supreme Court for a Writ of Certiorari (an acknowledgment from the high court that it would be willing to hear the case). In August, the Supreme Court granted the petition and will hear the case this year.

Since that writing, the Sacketts have continued to refuse to "restore the property to its original condition" as demanded by the EPA, and the daily potential fines have risen to $37,500 per day. They only paid $23,000 total for the property in the first place. These are people of ordinary means who had a dream, not millionaire envirowackos who have nothing better to do than prevent others from fulfilling their lifelong desire. The Sacketts have merely experienced what hundreds, perhaps thousands of others have experienced. But unlike most, the Sacketts refused to cave in and go away, and instead stood on their constitutional and God-given right to build their dream home on their own property.

An EPA "compliance order" such as the one affecting the Sacketts is a highly-arbitrary and tyrannical exercise of government power without decent notice. The Sacketts wrote to the EPA requesting the grounds for the order, and after seven months received a reply that admitted that it couldn't even find the Sackett's property in its EPA online wetland inventory. Then the Sacketts (who had already been through the entire permit process, including a local environmental impact report) hired a civil engineer to inspect the property for non-compliance with EPA wetland standards. He wrote a report and signed an affidavit stating that the property was not only not a wetland, but was nowhere near any other designated wetland. "So what?" said the EPA.

And here's where the Catch 22 Ninth Circuit Court decision comes in. The court held that the Sacketts could not seek judicial review of the EPA's wetland designation until after they had restored the land to its original state and had applied for and been denied a wetland permit. As you will see from my original article, that process would take a very long time, and would cost the Sacketts somewhere between $200,000 and $300,00. And the only way for them to "win" judicial review is for the EPA to deny the application. So even if the EPA did grant the permit, the Sacketts would already be out-of-pocket for about a quarter of a million dollars.

This is a classic example of how a federal bureaucracy with nearly unlimited funds can destroy the lives of American citizens who simply can't afford to be right. If the Sacketts even had the ability to spend a quarter-million dollars and more, then more huge sums of money to pursue the suit if the agency denies the permit, the EPA would already have won by warning future protestors of the cost of attempting to thwart the ecoweenie agenda. Fortunately, the Pacific Legal Foundation took the case for the Sacketts on principle. And if the EPA loses, the bureaucrats can just shrug their shoulders and say "oops."

So how does a compliance order work? When the EPA believes that a landowner is engaged in a violation of environmental laws, it may issue an administrative compliance order requiring the landowner to take certain actions and then seek judicial enforcement of the order if the landowner does not comply (in this case, the Sacketts' refusal to "restore the land to its original condition"). The issue the Supreme Court will address is the validity of such arbitrary and crippling orders. Can the landowner challenge the administrative compliance order in court before the EPA seeks judicial enforcement (here, the daily $37,500 daily fines).

The Ninth Circuit upheld the EPA's right to commit off-highway robbery without any resort to the courts. Even given the Supreme Court's awful decision in Kelo v City of New London (substituting the Constitution's words "public use" with "public purpose"), there's a good chance that the Supreme Court will slap down the growing tendency of delegating legislative and executive powers to bureaucracies. The EPA may have gone one alleged wetland too far.

25 comments:

Libertarian Advocate said...

The EPA may have gone one alleged wetland too far.

Inch'Allah!

Individualist said...

The real devastating thing about this is that no one who works in the EPA will ever be reprimanded for this fiasco despite the fact that they could be shown to be completely in the wrong.

What is worse there probably is some hidden agenda behind this. Someone who has land there jsut does not want any neighbors and tehy have friends in the administration. It could be.....

These poor people.

Tennessee Jed said...

I do so hope SCOTUS gets this right. While I am mad at myself for wishing ill to certain types of sanctimonious liberals who feel they are the moral overseers of everybody else on the planet, these are the kind of things that provoke such sentiments, and the specific redress I'm thinking of is medieval execution methodology. Sadly, I could actually see myself cheering the spectacle of an epa eco-weenie . . . .

Ah, nah-- I just hope they overturn it.

rlaWTX said...

I heard about the SCOTUS & the Sackett case yesterday and cheered a little... Now, here's hoping the SCOTUS is paying attention.

AndrewPrice said...

This is one of those things you think can't be real when you hear about it, but it is real and it's clear evidence that our government is out of control.

LawHawkRFD said...

LibertarianAdvocate: Let's hope.

LawHawkRFD said...

Indi: That's one of the major problems with government by bureaucracy. Nobody's individually responsibel. Just follow the rules, and you'll be completely protected from any negatives. Right and wrong don't even enter into the formula. There may be somebody local behind this, but it's just as likely a bureaucrat needed a notch on his belt. Nobody in the system gets reprimanded, disciplined or fired over things like this, but if they "make a name for themselves" there's always the reward of an increase in pay grade or a promotion.

LawHawkRFD said...

Tennessee: I moved here partially to get away from all the restrictive legislation on what you can do with your land. Now, since I'm less isolated than the Sacketts, I have to worry that if I want to build on my acreage I may have an EPA bureaucrat show up to tell me I'm destroying the habitat of some obscure and useless insect.

LawHawkRFD said...

rlaTWX: And maybe the decision will be helped a little by the flak they got over Kelo.

LawHawkRFD said...

Andrew: So true. If it showed up in a movie, the liberals would claim that the plot is ridiculous because such a thing couldn't possibly happen.

tryanmax said...

Between this and Andrew's article, I'm all paranoid now!

I am with Lincoln when he said, “The best way to get a bad law repealed is to enforce it strictly.” I feel for the Sacketts and am grateful for their willingness to play the martyr by running this through the courts. (and Pacific Legal) If they had simply folded, as I'm sure others have, then this threat will continue to loom indefinitely. Here's hoping this comes to a just conclusion, one that ends some of the EPA's onerous authority.

Joel Farnham said...

It is my sincerest hope that Future Presidents remove the stifling bureaucracies like the EPA. Yes, for about one year they were good, then they started to abuse their position. Next they will say we have too much computing power and that is rotting grey lizards brains in Portmanteau. Everyone who is not working for a bureaucracy will have to lose half their computer's power.

P.S. Check out the link. It is a word that sounds great but doesn't mean what it sounds like. Just wanted to throw in a wrench for any would be bureacraptist.

LawHawkRFD said...

tryanmax: I think the Sacketts have a good chance. But more importantly, this case has to be kept in front of the public as we try to dismantle the behemoth federal bureaucracies. We must eliminate and cripple all these agencies that have virtually unlimited power over individuals while avoiding the restraining influence of the courts.

LawHawkRFD said...

Joel: My position is that all federal agencies below full departments should have a maximum shelf life of five years. No automatic renewals. Every five years they must come before Congress in public hearings and justify their potential future existence. Trying to gut an agency which has existed for thirty or forty years and has built up cadres of nutcase adherents and professional bureaucrats is extremely difficult. Getting an agency re-created every five years in the full light of public scrutiny reduces that possibility by quantum leaps.

BevfromNYC said...

When the SEC investigators get away with no reprimand when they let Madoff go on for years with the excuse "We were just too afraid", then why not the EPA?

Anyone in the private sector would lose a job. All the Feds get is a "Oops, my bad ;-(" and a federally mandated pay raise...

LawHawkRFD said...

Bev: These agencies are useless in most cases, dangerous in others, bloated, metastasizing, and irresponsible. And you've pointed out the ultimate insult. Only bureaucrats in government jobs get rewarded for failure and doing the wrong thing.

T-Rav said...

I heard about this case a while ago, though I didn't know it had been kicked up to the Supreme Court. Figures that the 9th would rule in favor of the EPA.

Kudos to the Sacketts for telling these idiots, "Up yours."

BevfromNYC said...

The Sacketts should apply for a huge grant from some other government agency to restore "the wetlands". Maybe one in which they can get paid to write poetry or some performance art where they fill in holes and plant marsh grasses while quoting Shakespeare!

LawHawkRFD said...

Bev: Now wouldn't that be a delicious irony? Best of all, after receiving the money, they could do like most recipients of federal funds. They could spend the money on nearly everything except what was originally intended. And that would include obtaining even more elaborate plans for their dream home, which they could then build after the Supreme Court upholds their rights and slaps down the EPA. We can dream, can't we?

rlaWTX said...

WTX is fighting against protected status for the dunes lizard.
Damn EPA.

Tehachapi Tom said...

Hawk
The EPA has been out of control for some time now.
They have designated private farms with a stream running thru them as wetlands and inhibited the farmers from farming land that has been under the plow for generations.
I do not believe there is a farmer in this country that would destroy his property by doing wrong to any stream that ran thru his lands.
It was that thinking that blew up the levees along the Mississippi River that flooded thousands of farm acreage to save city property down stream. Those levees had been built by the Army Corp of Engineers
specifically to protect those farm lands.
You are right on when looking to dismantle the bloated government.

LawHawkRFD said...

rlaWTX: Does that lizard eat small fish, like the Delta smelt, maybe? I may have a solution. lol

LawHawkRFD said...

Tehachapi Tom: Not all farmers do the right thing, but the vast majority do. The EPA tends to concentrate on interfering with the successes and ignores reprimanding those few who do flout legitimate environmental rules.

rlaWTX said...

I'll pass that suggestion on to some friends in the oil biz... ;)

LawHawkRFD said...

rlaWTX: And I'm going to pass my brilliant idea on to the farmers here in the Central Valley. Maybe your oil people and my farmers can reach an interstate pact. LOL

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