Supreme Court takes up property rights dispute
Next week, the Supreme Court will take up the Sacketts’ case, not to redefine wetlands but to decide whether landowners are entitled to a hearing before a judge when they are confronted by the EPA. The case is being closely watched by developers and environmentalists.
Under the EPA’s rules, dry lots and open fields can qualify as protected wetlands if they are wet sometimes or situated near a stream or lake.
In November 2007, the Sacketts were given an “administrative compliance order” by three EPA officials telling them they must stop work, remove the gravel and “restore” the land by adding new plants suitable for a wetland. If they maintained the land in its natural state for at least three years, they were told, they could then seek a permit to build, a process that would cost about $200,000.
“We were blindsided,” Mike Sackett said. “And if we didn’t comply, we were subject to fines of up to $37,500 per day.”
Stymied, the Sacketts sought a hearing to contest the EPA’s order. They insisted the half-acre lot, which they had bought for $23,000, was not wetlands. But their hearing request was turned down by a federal judge in Idaho and by the 9th Circuit Court of Appeals in San Francisco.
Agreeing with the EPA, the judges said the compliance order was like a warning to the landowners that they were violating the law. They weren’t entitled to a hearing under the law until the agency had imposed a fine on them, the appeals court said.
That offered no solace to the Sacketts. They were in an “impossible situation,” their lawyer said: Do nothing with their lot for three years, or start building and face potential fines running into millions of dollars. They chose instead to appeal to the Supreme Court, which will hear the case Monday.
The case has become a cause celebre for the right, which is depicting the EPA as an out-of-control agency. The Idaho couple appeared three times on the Lou Dobbs program in 2011 and testified at an October hearing organized by Sen. Rand Paul (R-Ky.) to explore the “government’s assault on private property.”
“We need to take the government back from unelected bureaucrats,” Paul said at the hearing.