Sunday, February 27, 2011

EPA Brings The House Down--Literally

Meet the Sackett family, Mike and Chantell. That's a picture of the early and unfinished work on their dreamhouse. They saved, planned and dreamed, and finally purchased a half-acre plot in a residential area near Priest Lake, Idaho. They combined architect's plans with their own practical knowledge, pulled the necessary permits from the regional authority, and began the initial excavation for the foundation.

Who knew their property was in one of those fanciful "wetlands" created out of whole cloth by neo-Luddites and green weenies? Certainly not the Sacketts. Or any of their neighbors. The Sackett property is adjacent to or part of an area in which many other homes have been built without any notice from the EPA or any other crazed agency that the land is part of a protected wetland.

Abruptly they found out. Using a procedure called a compliance order, the EPA landed on the Sacketts' dream like an eco-freak bomb. The order requires the Sacketts to fill in the excavation, remove all construction materials, and "restore the wetlands." "What wetlands?" asked the Sacketts, "this is already a developed residential area." "Take no notice of that," said the EPA, "trust us, you're destroying valuable wetlands."

Not satisfied with essentially taking private property without due process of law by rendering it useless, the EPA informed the Sacketts that that once they covered their excavation and turned their half-acre back into an idyllic bird sanctuary, and after waiting an inexplicable three years, they could apply for a permit to do what the EPA just told them they couldn't do. And the application would only cost a few hundred thousand dollars, including the EPA studies and environmental impact report that would repeat the information the EPA has already based its decision on. Cute, huh?

But it doesn't stop there. After all, the EPA isn't heartless. The Sacketts have the option of leaving the land in its partially developed state while the EPA attempts to enforce its order. Talk about a roll of the dice with no good outcome possible. Yes, the Sacketts could do that, but even if they were proven right at the end, they would still be liable for fines up to $25,000 per day for the alleged Clean Water Act violations on the theory that you must obey the initial order regardless of what the ultimate outcome of the litigation is. That's a Catch 22 on stilts.

The Sackett's appealled the initial decision to the federal Ninth Circuit Court of Appeals, aka The Ship of Fools, and got a pyrrhic victory. The most-reversed Circuit in the nation held that the $25,000 daily fine could be deferred (but God help the Sacketts if they lost). It found the three-year waiting period to be onerous, and ruled that while the lower court sorted out the issues, the Sacketts could simply initiate immediately the $200,000 to $300,000 process of formally applying for a federal wetlands permit.

Now wait, you say, no matter how outrageous the compliance order may be, the Sacketts are not being denied due process. They've had their day in court twice, and have gotten rulings partially in their favor. Well, not really. A compliance order is unilateral and does not afford a defendant notice or opportunity to be heard. That comes only after the landowner has been hijacked by the EPA.

For a bunch of loony lawyers who talk about procedural due process as obsolete, that's exactly what the EPA and the Ninth Circuit are hanging their legal hats on. Normally they blather on and on about the Warren Court-created "substantive due process." What good are procedures if in the final analysis only one side has any chance of "winning?" The Sacketts could walk away with a final "victory" that cost them $2 million to $3 million dollars all told, or they could lose that and their land too. Now that may be fine for Bill Gates or George Soros, but it's not acceptable to people of ordinary means.

The attorney for the Sacketts summed the case up very well. "The Ninth Circuit conclusion leaves property owners like the Sacketts in an impossible situation; either go through with the permit process that you believe is completely unnecessary and spend more money than your property is worth to purchase your chance at your day in court; or invite an enforcement action by the EPA that gives you your day in court but only at the price of ruinous civil penalties and, depending on the EPA's ire, criminal sanctions for underlying violations of the Clean Water Act."

The Legal Project, which has joined in the defense of the Sacketts, says "The reality of the Sacketts' situation is that they have been unambiguously commanded by their government not to complete their home-building project, to take expensive measures to undo improvements that they have made to their land, and to maintain their land essentially as a public park until the property is restored to the satisfaction of the EPA [emphasis added}. They have long been threatened with frightening penalties if they do not immediately obey, but they have been refused the prompt hearing they should have received as a matter of right in any court."

Now all of this should make any normal person's blood boil. But if you think carefully about it, it should produce another reaction in a great number of us (myself included). That reaction is reasonable fear. If you're already settled into your tract home or city apartment, your anger is an abstract disgust for injustice. But if you own property that you wish to build on, and that isn't part of a fully-approved tract development plan (bribes already paid), you could become the next Sackett family. No property is too distant and no outrageous enviroweenie theory is too silly for the federal fascists to come after you.

The EPA filed over 3,000 compliance orders in 2010. They're on target to issue even more in 2011. And despite the current EPA "de-funding," the agency has plenty of money left over from previous budgets and current extortion money to use a government bludgeon, arbitrary interpretations of environmental law, and capricious enforcement to make any thinking property-owner wary of improving his own small piece of God's green earth. This is nothing short of taking of property with no genuine due process. It's government by bureaucratic fiat.

This is a sufficiently serious issue that we must think in terms beyond the plight of the Sacketts. We are the Sacketts, and the Constitution protects us. Their cause is our cause. Pacific Legal and the Sacketts' original counsel have filed a Petition for Writ of Certiorari with the US Supreme Court. For those not familiar with the expression, that means they have asked the Supreme Court to hear the case, as quickly as possible. The Supreme Court can simply "deny cert" and let the Ninth Circuit decision stand. I pray that the high court will see the fundamental constitutional right being infringed up and grant the Sacketts (and by inference, all of us) a chance to sleep well knowing that our property belongs to us and not to the federal government and its alphabet agencies.


Tennessee Jed said...

That is outrageous. And yes, my blood did boil. In addition to hoping the high court gets this one right, I wonder what options are left regarding the EPA in general? Can the House severely restrict funding? We tend to hear so much how the administration is using agencies like the EPA to short circuit elected congressional representatives and the people.

T_Rav said...

Wow. Just throwing this out there, but can't the president simply dissolve the Ninth Circuit? I know with TOTUS in office, it'll never happen, but if he wanted to, couldn't the president redraw the boundaries and simply reassign the Ninth's territory to adjoining circuit courts? This is probably a lot more complicated than I'm making it sound, but in theory, that can be done, right?

Jocelyn said...

This is amazingly ridiculous, I can't believe it. It sure is scary to think that if the EPA or any other agency really wanted to, they could find some obscure law and use it to get what they want.

Though, I am curious, what happens to the rest of the residences in the already developed area on this "wetland"? Will they have to pay the Clean Water Act? Or are they ignored because they're already built there?

AndrewPrice said...

The EPA is a menace, and so is the Ninth Circuit. This is the sort of thing conservatives need to purge from government.

Unknown said...

Tennessee: De-funding in the House was a good start, but it's going to take a lot more action than that. And that will likely have to wait until we have a majority in the Senate, and probably the White House as well. For the time being, the most damning action would have to come from the executive branch, and we know that's not about to happen.

Unknown said...

T_Rav: My heart is with you, but my conservative head says otherwise. The Constitution is clear: "The Judicial power of the United States shall be vested in one supreme Court, and is such inferior Courts as the Congress may from time to time ordain and establish."

The breakup of the Ninth Circuit has been bandied about for as long as I've been in the legal profession. It may yet happen, but not with this Congress and not with this President to veto such an action.

Unknown said...

Jocelyn: You got the very heart of the point of the article. The power of the agencies to use legislation to flout the purpose of the law and end-around the elected branches is seemingly limitless. The Congress says "clean up the water." The EPA writes the regulations and is the sole judge of its own power, often exercising it in a way neither intended by the Congressional legislation nor allowed by the Constitution. Most out-of-control federal agencies follow the same pattern, but over the past few decades, the EPA has been by far the worst. This is the danger of "do-good" bureaucracies, lawless executives and legislatures in a hurry to pass legislation that makes them look good to the public (for the children, for the children), but doesn't consider the consequences and doesn't monitor the results.

The houses already there could be subject to attack by the EPA, but inertia and the possibility of an even-more vigorous attack on the agency would probably keep the eco-weenies from taking any action.

Unknown said...

Andrew: Advocates of the expanding number and power of federal bureaucracies try to point out that when the Constitution was written, there were only thirteen states. We now have fifty and a nation that spreads from ocean to ocean, and from Canada to Mexico. Nice try. We have fifty sovereign states but still only one national government. The latter hasn't changed, but its role has been incessantly redefined since the two seminal events: The Civil War and the Great Depression. But the basic concept is still the original--the national government has no power over the individual states that the Constitution didn't grant it. Here, we have one home, in one state, in an alleged "wetland" that only the EPA knows about. So they just created the wetland, used the goody-two shoes wording of the Clean Water Act and the massive regulations they themselves wrote (but not the Constitution), and imposed a federal mandate in an entirely state (local, actually) matter. Even if the water were 50% mercury, or the home of the Double-Breasted Mudsucker, it's too small and too remote to have any cumulative effect sufficient to justify federal intervention. But there is no "problem" too small and too silly for the bureaucracy to jump in and exercise its unlimited power.

The Supreme Court must slap the EPA down in this case, and the underlying Act(s) must be revised or repealed to put power back into the hands of the people, and the states where the feds have no genuine business acting.

Monica said...

That's a ridiculous misuse of the EPA's power, assuming that they even have a right to power in the first place! I'm no constitutional scholar, but I'm pretty sure that private property rights are something that the constitution protects, for good reason. It's an integral part of freedom. I just keep getting more upset with the bureaucratic nightmares that my tax dollars are funding. . .

Joel Farnham said...


Correct me if I am wrong, but the wording of the clean water act is vague enough that the bureaucrats decided if waterfowl can see it, it is considered a wetland.

So, a portion of the property that a homeowner has been meaning to fill-in with dirt and sand to cut down on the mosquitos can't be done because the EPA considers it a wetland. In reality, it is a muddy bog that accumulates water because of the placement of the drainage of the house.

This is my imperfect understanding of this Wetlands Law.

Unknown said...

Monica: You couldn't be more correct. The problem has been that for years of Democrat and weak-kneed Republican governance, the very basic and foundational concept of the inviolability of private property has been treated in every manner from mere negligence to outright hostility. Land/home ownership has been treated as some kind of pathological greed. And despite the Constitution's clear language regarding the relationship between government necessity and the taking of private property, even the Supreme Court knows how to get it wrong--viz. the Kelo decision (the taking of private property for public use with just compensation morphed into taking of private property for public purposes with questionable compensation).

Private property with minimal government intrusion and the right to use that private property as the rightful owner chooses is one of the pillars of our previously free commonwealth. It's in serious danger of complete destruction.

Unknown said...

Joel: No need for correction. In fact, I think you were quite generous. I would have said "if a useless fish or a carnivorous snail could even conceivably use it, it's a wetland."

Joel Farnham said...


This is one of the major reasons I want the EPA disbanded not just defunded.

The actual result of the wetlands act is giving the EPA effective control of every piece of land in the country. Including the ones already owned.

The only ones not affected are pure desert like Death Valley, just watch out where you drain your water.

You are right about your fears. The Sacketts plight is actually designed to cower other homeowners. The bastards are thinking, "This is great! Look how I scare them uppity homeowners." Trouble is they forget that this is the United States.

Unknown said...

Joel: Don't even be so sure about Death Valley. It's the perfect place to put those inefficient solar panels. but since there are a couple of unique lizards and flies in the area, that will never happen. And after all, it does rain there a couple of times each century, and some of it gets wet. That's a "wetland" isn't it?

The Environmental Protection Act created the EPA. It was a good idea gone mad with government overreach. I'm not sure I want to eliminate EPA entirely, since it can (and at one time did) be a force for good. But EPA at least has to be completely reined in, its funding cut commensurate with its basic goals, and most importantly, constant oversight by Congress. Right now, it's like a giant high-speed train, roaring down the tracks of the 21st century with no engineer and no brakes.

T_Rav said...

LawHawk, thanks for clarifying that point. Time to put more pressure on the House, I guess.

Unknown said...

T_Rav: We need to keep the pressure on the House on all fronts. So far, they've shown considerable backbone, but the liberals have always been good at wearing down the opposition. Defunding was a good start, since the Republicans can now afford to move on to other issues and make the Democrats plead for EPA funding in the future. That's where the rubber will meet the road on the EPA (the Act and the agency).

Joel Farnham said...


It came to me this morning listening about Old San Francisco. At the time, it could be considered necessary for vigilanties. It was totally lawless. It is the same thing with the EPA. As you know, the vigilanties were disbanded when they started going after innocent people. Well, don't you think the EPA is doing the same thing here?

The EPA's time has come and gone. Let's put it into the history books and forget about it.

Writer X said...

Unbelievable. And yet another governmental agency that should be defunded. Immediately.

Unknown said...

Joel: The word "vigilante" wasn't invented in San Francisco, but it gained its fame from the City. The Committee of Vigilance at one point set up the scaffolds outside City Hall and threatened to hang the entire corrupt Board of Supervisors. Ah, the good old days. I think the EPA resembles those corrupt officials rather than the vigilantes. They were given legitimate power and abused it. The vigilantes never had any legitimate authority, though desperate times call for desperate action. I would say that they both share a common thread of lawlessness, but their bases were different.

Unknown said...

Writer X: The defunding has already taken place. Now it's up to the Republicans to hold off liberal attempts to paint conservatives as wanting Americans to live in cesspools and drink tainted water. If they then can't come up with powerful restraints on the activities of the agency, it should be abolished once and for all.

USS Ben USN (Ret) said...

Outstanding post, Lawhawk!

Every time we consider buying a house rather than renting, I read about yet another abuse of power by yet another agency that's not elected by, representative of, nor nor accountable to we the people.

And, as you mentioned, this can happen to anyone.

The erosion, if not the outright abolishment of property rights in the US is a serious issue, for if we lose our property rights by bureaucratic fiat we lose one of the cornerstones of our liberty.

BS like this, along with ever increasing property taxes, levies, fees, etc., make private property a fast fading illusion.

I don't believe I'm exaggerating here. For even if I bought and payed for a house and property, I never really own it because the EPA, FTC, or some other government agency (federal, state, county, etc.) can take it away for Emminent Domain, or some trumped up (or made up) environmental issue.

Furthermore, if all taxes, levies, fees, etc., ain't paid every year my property would be confiscated.

What other thing other than private property (land)is taxed every single year after we pay for it?
In effect, we never own property, we only rent it, and only as long as the government is nice enough to let us.

I think all these government agencies should be under direct conrol of Congress because it's too easy for their power to be abused by one President (as Obama has demon-strated) or by these unelected Czars.

We need more judges who understand (and support) our Constitution.

And we are in desperate need of tax reform in this country.
No one should hafta pay perpetual taxes forever to own property in the US.

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