EPA court outcome impacts all landowners

Jan 13, 2012

The U.S. Supreme Court heard arguments last week in an Idaho couple’s challenge against the Environmental Protection Agency’s (EPA) Clean Water Act (CWA) and wetlands enforcement actions. The case could have far reaching impacts for agriculture, according to the National Cattlemen’s Beef Association (NCBA).

In 2005, Chantell and Michael Sackett purchased an undeveloped, residential, 0.63-acre lot in a subdivision near Priest Lake, ID. In preparation for building their dream home, they filled in the majority of their property two years later, with dirt and rock. However, in 2007, after filling in half the lot with gravel in preparation for construction, EPA issued the Sacketts an Administrative Compliance Order (ACO), alleging the land was a wetland subject to CWA jurisdiction, and ordered the Sacketts to restore the land to its original condition or face nearly $50,000 in fines per day. The Sackett family appealed for a hearing on their alleged violation but was denied by EPA and the federal court.

The couple says they had no reason to believe their property included a wetland so did not even consider getting the CWA permit. Several groups, including agricultural, homebuilders and businesses, have joined the Sacketts, asking the courts to allow contesting of EPA compliance orders. In October, NCBA and the Public Lands Council (PLC) filed an amicus brief to the U.S. Supreme Court in the case.

Dustin Van Liew, PLC executive director and NCBA director of federal lands, said Sackett v. EPA could set a dangerous precedent allowing EPA and other federal agencies to make jurisdictional determinations that are not judicially or administratively reviewable.

According to Van Liew, the court threw out the case because it determined that the CWA prevented judicial review ACOs until the enforcement actions have been issued by federal agencies. He said the Sacketts could not challenge the compliance order until they refused to do what it instructed and, consequently, were fined tens of thousands of dollars.

“Like millions of Americans regularly do, the Sacketts rightfully purchased land to build their dream home. Unfortunately, instead of building that home, they have spent the past four years battling EPA and the courts,” Van Liew said. “The Sacketts weren’t trying to cut corners. They followed the rules and now they just want a fair shake in the courts. The uncertainty surrounding the CWA permitting process and the time and financial costs associated with it has left them with abysmal options of submitting to the regulator’s demands and the costs associated with those demands, risking catastrophic fines for noncompliance, or investing significant time and resources pursuing a permit. In this process, the only winner is the federal government. Private landowners lose.”

Damien Schiff, a senior staff lawyer with the Pacific Legal Foundation, is representing the Sacketts pro bono, and said in a released statement, “If EPA essentially seizes control of your property by labeling it as ‘wetlands,’ do you have a right to appeal to a court of law? EPA says, No. The Ninth Circuit has said, No. Today, on behalf of Idaho property owners Mike and Chantell Sackett, Pacific Legal Foundation urged the Supreme Court to say, Yes. The Sacketts —and all property owners who are hit with EPA attempts to control their property under the Clean Water Act—have a statutory right and a constitutional right to their day in court.”

“In this process, the only winner is the federal government. Private landowners lose.”

According to NCBA Deputy Environmental Counsel Ashley Lyon, this case could have far-reaching impacts on farmers and ranchers and all private landowners. She said CWA has morphed from a statute to protect our nation’s waters in to a tool for regulators to micromanage daily decisions of private landowners. She said the U.S. Supreme Court will consider whether petitioners may seek pre-enforcement judicial review of ACOs and whether petitioners’ current inability to seek pre-enforcement judicial review of the ACO violates their rights under the Due Process Clause.

“The brief NCBA and PLC filed in this case pushes for a decision that affirms a landowner’s right to challenge a jurisdictional determination before they are required to either go through the costly and time-consuming permitting process or are fined thousands of dollars,” Lyon said. “Today it is private landowners, who followed the rules, attempting to build a home, but private landowners, including farmers and ranchers, will no doubt face future challenges if EPA and other federal agencies’ decisions are not subject to judicial and administration review. We are hopeful the U.S. Supreme Court will consider the sweeping impact this case could have on all private landowners in this country.”

The case could be finalized by summer. — Traci Eatherton, WLJ Editor