American Elephants

Here is the basic case. In 2005, Mike and Chantell Sackett bought a small piece of land in Priest Lake,  Idaho — up in the Idaho panhandle.  Running their own small business, living in a rented home, building their dream house with a view of the lake launched this unsuspecting couple on a nightmare journey that led them to the United States Supreme Court, to finally meet their destiny on Wednesday.  The video, below will give you a sense of their story.

Here is the piece I wrote last October about the case, which includes the Pacific Legal Foundation brief and their pathway through the courts.

I have no brief for the EPA, which I consider an out-of-control agency that is causing far more trouble for America than it is cumulatively worth. Here in the Seattle area, under current EPA thinking, almost anyone’s home could be considered a wetland— at least a good part of the year.  It does rain a lot.

Wednesday, a Unanimous Supreme Court ruled in favor of the property owners in Sackett v. EPA.  The opinions in the case (an opinion for the court and two concurring opinions by Justices Ginsburg and Alito) are available here. Justice Alito’s concurring opinion offers a very clear description of what was at stake;

The position taken in this case by the Federal Government—a position that the Court now squarely rejects—would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency(EPA) employees.

The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy. The EPA may issue a compliance order demanding that the owners cease construction, engage in expensive remedial measures, and abandon any use of the property. If the owners do not do the EPA’s bidding, they may be fined up to $75,000 per day ($37,500 for violating the Act and another $37,500 for violating the compliance order). And if the owners want their day in court to show that their lot does not include covered wetlands, well, as a practical matter, that is just too bad. Until the EPA sues them, they are blocked from access to the courts, and the EPA may wait as long as it wants before deciding to sue. By that time, the potential fines may easily have reached the millions. In a nation that values due process, not to mention private property, such treatment is unthinkable.

The court reached its decision on statutory grounds, ruling that the property owners are entitled to judicial review of their case under the Administrative Procedure Act. It did not, therefore get into the issue of whether such review is also required by the Due Process Clause of the Fifth Amendment, which states that the government may not deprive individuals of life, liberty, or property without due process of law.

Justice Alito went on to explain that “the combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA’s tune.” The justice also urged Congress to clarify the scope of the Clean Water Act, and the draconian penalties imposed for the sort of violations alleged in this case.Scroll down to the end of the decision to see what Justice Alito had to say to Congress and the EPA.

This is a strange, and seemingly unnecessary, case caused by sloppy legislation that provided that the Clean Water Act covers “the waters of the United States.” Ambiguous, and Justice Alito suggests that Congress and the EPA both need to clean up their overreach and get precise. “But far from providing clarity and predictability, the agency’s latest informal guidance advises property owners that many jurisdictional determinations concerning wetlands can only be made on a case-by-case basis by EPA field staff.”