Supreme Court Affirms Right to Challenge Government Power Grabs in Sackett v. EPA; Justice Alito Cites CEI Amicus Brief

by Hans Bader on March 21, 2012 · 7 comments

in Economy, Environment, Features, Legal, Property Rights

Post image for Supreme Court Affirms Right to Challenge Government Power Grabs in <i>Sackett v. EPA</i>; Justice Alito Cites CEI Amicus Brief

Rejecting the arguments of the Obama administration, the Supreme Court has just held that EPA “compliance orders” can be challenged in court if they are arbitrary and capricious — for example, if they are based on an erroneous bureaucratic interpretation of what a “wetland” is, that results in dry land improperly being declared an unusable wetland. In his concurring opinion, Justice Alito explained one reason why such judicial review is needed: the EPA uses vague, inconsistent standards when it declares seemingly-dry land to be a wetland. As he pointed out, citing CEI’s amicus brief, “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. See Brief for Competitive Enterprise Institute as Amicus Curiae 7–13.”

The EPA has a practice of issuing “compliance orders” to property owners telling them to stop using their land and restore it to its prior condition, under penalty of $37,500 a day in fines, and declaring in such orders that such land is a federally protected wetland. It then waits months or years before actually suing the property owner for the fines, which accrue daily, potentially adding up to millions in fines. But in the meantime, it insists that the property owners can’t challenge its claim that their property is a non-usable wetland in court. If they want to take issue with its claim that their property is a “wetland,” they have to wait until the EPA sues them later on to collect those fines, after they’ve racked up potentially millions in fines under the compliance order.  The order doubles the fines that a judge can impose on the property owners when the EPA ultimately sues them, although if the judge later finds the land was not in fact a “wetland,” he can refuse to impose the fines. (In the absence of a “compliance order,” the maximum fine for developing a wetland is $37,500 a day; the compliance order adds another $37,500 per day, bringing the total to $75,000 per day.  Federal law has a broad and counterintuitive notion of what is a “wetland”: for example, in one court ruling, the government was allowed to declare a property to be a “wetland” even though it appeared dry, since water occasionally passed from it into a roadside ditch that in turn flowed into another ditch that flowed into a creek).

There is no clear legal test for what a wetland is, since the last time the Supreme Court tried to come up with a definition in the Rapanos case, the judges split 4-1-4 on how to define it, splitting three ways in three different opinions each of which had a different test for what a wetland is. The EPA has seemingly flouted even the few principles shared among a majority of the Supreme Court justices (the four-justice plurality and Justice Kennedy’s concurrence), in its vague and manipulable guidance as to what is a wetland.  In light of the huge fines that can be imposed on property owners, and the breadth and ambiguity of the EPA’s concept of “wetland,” which includes much land that seems like dry land to a layman, denying property owners the right to immediately challenge an EPA “compliance order” effectively forces them to do whatever the EPA said, even if the EPA’s position was arbitrary and capricious. But that’s what federal appeals courts, at the urging of the EPA and the Obama administration, did: they denied property owners any right to challenge the EPA upon receiving a compliance order. The case, Sackett v. EPA, involved the Sacketts, a family of would-be homeowners who had purchased land for a home in a residential subdivision in Idaho:

“In 2005, Chantell and Michael Sackett purchased less than two-thirds of an acre of land near Priest Lake in northern Idaho for the modest sum of $23,000. They were nearby small-business owners and wanted to become homeowners. They planned to build a three-bedroom home. The property was located in a platted residential subdivision with water and sewer hookups and was bordered on either side by existing homes. There were community roads in both the front and back of the property.

“The couple was savvy enough to have conducted regulatory due diligence before they purchased the land. The previous owner informed them he had consulted the U.S. Army Corps of Engineers regarding any building restrictions. There were none. After buying the property, the Sacketts applied for and received all of the pertinent local permits to build a residential dwelling as local zoning ordinances permit. In the spring of 2007, they began preparing the lot for construction.”

So far, so good, right? Wrong. Somebody at the EPA decided, incorrectly, that the Sacketts’ private property was actually a wetland, so only the federal agency could decide what, if anything, would ever be done on the lot. The bureaucrats then ordered the Sacketts to remove foundation work that had been completed, plus much more. The EPA’s decree . . . directed the Sacketts “to plant new vegetation and specified what to plant (‘native scrub-shrub, broad-leaved deciduous wetlands plants and seeded with native herbaceous plants’) and how to plant (‘approximately 10 feet apart’). Additionally, they were ordered to fence the property, monitor plant growth for three growing seasons and to permit unfettered access to the property by EPA agents.”  [The cost of doing these things was more than the value of the land itself]

Through it all, the EPA fined the Sacketts $37,500 daily for noncompliance with its order (the fines totaled nearly $40 million as the case was argued Monday). Worst of all, EPA claimed in federal district and appellate courts that respecting the couple’s due process rights by granting them judicial review of the order would be a “disservice” to the agency.

As Justice Alito noted, the Administration’s position would gut constitutional guarantees of due process: “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.”

Cary Michael Cox March 21, 2012 at 5:53 pm

Hopefully a harbinger for the Obamacare ruling.

Sam March 21, 2012 at 9:25 pm

Important article. BUT you are wrong to say that this is an Obama administration thing. The Sacketts ordeal with the EPA and the 37,000 per day fines went back to 2006. Obama was not in office. This is not a Republican or a Democratic thing. The government is being conrolled by Big Business. The dichotomy between libs and dems is a false one. History and anthropology tell us that control of people occurs through rallying the people to sides and making them think they have something in common with their respective Leaders on each side. It happens to be that Obama is president now. It doesn’t matter. Bush was president when when the Sacketts were slammed with the arbitrary/erroneous compliance order. They weren’t the first, either. This has been going on long before 2006. It doesn’t matter which presidential administrtion it is because they ARE ALL THE SAME. Government is in the pocket s of big business. (More so now that the Supreme Court ruled that corporations can donate unlimited anonymous funds to political campaigns). EPA doesn’t want to hit the big pulluters too hard any more than FDA would go after Monsanto! Monsanto IS the FDA and Big Business IS the EPA. So EPA goes after the little guy like Slacket or my sister the Granny who cleared some shrubs on her property for a camp site (and faced $50,000 per day in fines and 3 years in jail until yesterday EPA mysteriously dropped their compliance order–the day before this ruling is announced in the news). I hope your readers are smart enough to realize that the battle in this country is not between libs and dems; it is between big business and the rest of us. Ron Paul is the only candidate calling a spade a spade. The only candidate who has never flip-flopped. The only one Truly fighting for our Liberty. Think how many times Romney has changed his tune depending on who he is talking to. Ask yourself how many times Ron Paul has changed his tune. ZERO. Think about that.

Sam March 21, 2012 at 9:26 pm

Where did my comment go? Where are the comments for this article?

Sam March 21, 2012 at 9:33 pm

I just posted that this article falsely makes it appear that this is an Obama administration thing. Sackets were given the $37,000 per day penalty and compliance order in 2006. This is not about libs and dems it is about Government agencies being run by big business. Monsanto runs the FDA so why would the EPA be any different. Only Ron Paul addresses this and doesn’t flip flop. Think about that. My sister had the same thing happen to her as Sacketts except they threatened her with $50,000 per day and 3 years in prison for violating a wetland which wasn’t a wetland. I care deeply about this case. My sister is a republican. I used to be a democrat. But they are all the same. Obama is the same as Bush (It kills me to have to say that.) He is no better and no worse. Only Ron Paul has been consistently fighting for your liberty.

Dave April 13, 2012 at 2:12 pm

How is a decision by the EPA to disallow a new landowner to build by a Lake that had homes on either side in any way some kind of benefit to big business? Sounds more to me like a rogue agent in a fixed system that doesn’t allow the agent to be appealed in his ruling. EPA is more likely controlled by big ENVIRO.

Hans Bader March 22, 2012 at 12:40 pm

Four of the nine Supreme Court justices — the liberal justices — have largely bought the EPA’s argument that it can regulate essentially any land in America as a “wetland” if water intermittently flows down hill from it into a ditch or creek (in the Rapanos case).

The five moderate or conservative justices did not embrace the EPA’s argument.

So property rights hangs by a thread (a thin 5-to-4 margin).

The replacement of just one moderate or conservative justice with a liberal justice would have an enormous effect on property rights in this country.

Toddy Littman March 25, 2012 at 11:27 am

Sam, actually this is an Obama Administration thing, because, they could have contacted the Sackett’s at any time since January of 2009 and negotiated a settlement that would have stopped this case from going from the 9th Circuit to the Supreme Court, but, Obama’s transparent administration failed to do it. And in actuality, they wanted an opportunity to nullify the Administrative Procedures Act, just like in the Healthcare Law they started with the Commerce Clause argument in an effort to challenge the U.S. v. Lopez ruling from 1994 or 1995 that challenged the notion the Commerce Clause is an unlimited power for the first time in 60+ years. And in this Obama made this case his, stopping it at any point before it reached the Supreme Court, and you’d have a valid point, but Obama’s administration and EPA did not do that.

Further, this is a Democrat thing, since, the democrats took the House in 2006, meaning the republicans were already in the midst of negotiating during 2005 to keep what seats they did, and this is that point in time when the EPA was given more power, and the global warming hoax hadn’t been revealed for the inconvenient truth it is as a fraud via “Climategate”. So in 2006 the Progressive, anti-war, 911 truther, global warming, big government is the solution groups won control of Congress, since that time spending and agency empowerment over the people has run rampant. The only truth to your argument would be that that Nancy Pelosi, Steny Hoyer, Harry Reid, and others were so in bed with big business that they empowered the EPA. I’d need more proof of shifting capital positions to buy that line, but I do find it plausible in light of the way Liberal-to-Progressive leaning, Soros, Buffett, Gates, Winfrey, and others manage their money to help promote “the collectivist State knows best” while parlaying their wealth into special interest as “U.S. Politburo Members” ala Chairman Obama. The movement of their sums, when combined with a few others, around 500 billion dollars, can and will affect currencies and other commodities around the world, and can easily aid the U.S. Economy in turning around, if they wished it to. Thus they bought into being the epitome of the Progressive argument against the wealthy, choosing to use their wealth to undermine the very principle by which they attained it, and assume this true of everyone else, which it is not. But the parasitic investors they are, by being the very “greedy capitalists” they claimed were out there in mass, has resulted in these Progressive Elitists being that mass all by themselves.

In reality, what your going on about with big business is mostly a resentment of the fact that they actually watch what’s going on in capital and legal means activities, and, do what they can to affect their interests in a positive way, something each person in this nation is supposed to be doing but failed to do for some 223 years, or at least a good 150 of them.

These businesses are merely responding to the actions of a government that has failed to listen to the People as their leader. The People are also the investors in these businesses and of course those with an extensive financial interest thread through the economy will step in to fill the void we leave by our treating “self-Government” as meaning how well we can use the channel changer in couch potato mode, and scheduling a ride to pick up our monthly dependency check.

When we actually learn our role in “self-government” then, and only then, will more of each of us be those wealthy interests. I find this far more appealing versus the Progressive model of assuming some wrong had to be perpetrated by the wealthy, though not prosecuted or otherwise proven, and then used to lower their wealth, to transfer portions of it from private ownership to government’s wasteful hands because the public announcement of it is just a ruse, a Progressive tactic to agitate and divide the people, for government to exploit the jealousy of us against each other, circumstances that have only been good, since the Hammurabi Code, for those who want to centralize power in order to control the people. I will not subscribe to this for Our Founders set out the revolution in their actions of making We The People the lawgiver in Our Written Constitution, that’s the purpose and point of the House of Representatives, and how by their representative function “ignorance of the law is no excuse.” I must note that with Obamacare this principle can’t be claimed over us since our representatives, including the President, never fully read it, and therefore have no way to know if it safeguards the Principles of American Government, Constitutional limitations and opportunity to redress when they are violated that assures our rights are secured.

At some point I implore you to accept the simple premise that government is the problem. Private “big business” interests are merely those in survival mode, circling the waters and hoping the People wake up and take up the reins of abandonment they let go of on the horse of Liberty, the only one directing us on the path to Freedom.

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