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.