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EPA hunting bullfrogs with shotgun in Sackett case

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  • Mike and Chantell Sackett began building on waterfront property in 2007. Their lot, less than a single acre, was declared by the EPA as a “wetland without a federal permit.” EPA issued a compliance order directing the Sacketts to restore the site to its previous condition. The Sacketts have taken their fight against EPA's compliance order to the Supreme Court.

The EPA has 17,000 full time employees and approximately an $8.4 billion budget. It also has a fondness for hunting bullfrogs with a shotgun.

Case in point: Mike and Chantell Sackett began building on "waterfront" property at Priest Lake, Idaho, in 2007. Their lot was less than a single acre (.63), bordered by other residential properties, and 500 feet from the water. As they were laying gravel and grading the property, EPA officials arrived, claimed they were acting on an anonymous tip, and declared the location a “wetland without a federal permit.” Essentially, EPA issued a compliance order directing the Sacketts to restore the site to its previous condition.

The order demanded they “remove all fill, replace any lost vegetation, and monitor the fenced-off site for three years,” or else face “great cost” and a “threat of civil fines of tens of thousands of dollars per day, as well as possible criminal penalties.” The fines in the Sackett case ranged up to $37,500 per day.

For average Americans, EPA compliance orders carry the weight of law because options are, well, extremely limited. The lucky recipients of a compliance order basically have two choices: (1) They can obey the EPA and comply. In the Sackett case, the cost of cleanup and restoration would have exceeded the $23,000 they had originally paid for the property. (2) The other choice is to force the EPA’s hand and wait for a suit. This option comes with a kicker for the property owner — the daily EPA fine meter ticks on until the court date comes.

If the landowners choose door No. 2, the EPA can bleed them dry: little bit of paperwork, little dab of lawyering, little incident of lost files, little spot of miscommunication — and bang, presto, the court date finally arrives after a mountain of fines have stacked up. Lovely. (The Sacketts currently owe the EPA close to $40 million.)

The Sacketts are demanding a door No. 3. They are asking for a third option: Let us fight the compliance order without waiting for a court date or EPA enforcement.

Following failure to gain an ear in two lower courts, the Sacketts gained a foothold in June of 2011 when the Supreme Court agreed to hear their case. Scheduled on the docket as the Court’s first hearing of 2012, oral arguments have already ended and a ruling is expected this summer.

However, the black robes in D.C. will not be deciding on whether the Sacketts get to have a dream house on Priest Lake. Rather, the Supreme Court is considering a far heavier question:  Can a property owner fight an EPA compliance order without having to wait on the EPA?

It’s true that under the Clean Water Act, the EPA is responsible for conserving U.S. wetlands. But the Sackett case is not about pollution or environmental damage; it’s not even about wetlands — that was a sideshow. It’s about due process and the simple rights of American citizens.

Hey, put it all on the table: the Sacketts have General Electric and the American Petroleum Institute in their corner. True enough. Big business has a keen eye on the Priest Lake property battle because implications and precedents for future court battles are on display. EPA is scared to loosen its grip on the Sacketts — that might open the door to all sorts of litigation from all sorts of companies.

The case certainly has its cloudy elements; both sides are contesting who knew what and when. But at the end of the day, it appears EPA would rather sacrifice the Sacketts than admit that something smells odd: Let's make the common man bow to the bureaucracy right or wrong. In a battle with reason, EPA has bound regulation, judicial review, due process and bureaucracy into a Gordian knot that desperately needs to be cut.

Since 2007, when the Sackett saga began, how much U.S. money has EPA spent on the case? How many millions in American taxpayer dollars will EPA burn up in pursuit of the Sacketts? No wonder EPA needs an $8.4 billion budget.

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