| January 13, 2012

This is America, isn’t it?

I guess you can file this under, “This is America, isn’t it?” Well, that’s what one Idaho couple is no doubt still wondering. Mike and Chantell Sackett paid $23,000 for some property in 2005 and two years later decided to build a three bedroom house. Workers spent three days filling in a half acre of land with dirt and rock, when three EPA officials showed up and asked the workers for the proper permit and then told them to stop their activity. The agency said they believed the property was wetlands protected under the Clean Water Act.

Six months later, the EPA ordered the Sacketts to return the land to its former state, remove piles of fill material and replant vegetation they had cleared away. According to Bloomberg Businessweek, “The property was to be fenced off and the Sacketts would be required to submit annual reports about its condition to the EPA.” The agency threatened to fine the Sacketts up to $37,500 a day until they complied.

That’s when the Sacketts attempted to get a hearing in federal court, seeking a declaration that their property wasn’t a protected wetland. Two lower courts refused to hear the case until, and unless, the EPA asked a federal judge to enforce the order. The Sacketts were simply left hanging. If they restored the property to EPA standards, it could cost hundreds of thousands of dollars and if they won their case they would have to pay to prepare the property a second time for their new home. If they defied the order and continued construction, they could rack up hundreds of thousands of dollars in fines. Either way they could face possible bankruptcy. Meanwhile, the couple hasn’t done anything to their property since the controversy.

Damien M. Schiff of the Pacific Legal Foundation, a property rights group representing the Sacketts, said the couple had few, if any, options. So they decided to appeal to the United States Supreme Court. Fortunately, the high court has agreed to hear the case and it should be decided by summer. Already, statements made by some of the Justices have been reported in the media.

Justice Antonin Scalia criticized the “high-handedness” of the environmental agency when dealing with private property. Justice Samuel Alito described some of the EPA actions as simply “outrageous,” noting that the Sacketts had to wait until the EPA sued them to even challenge the idea that there were wetlands on their property. Chief Justice John Roberts said that, because of the threat of potential fines, few people are going to risk challenging the EPA's determinations.

The impact of this case will have huge implications for property owners. It will decide whether the EPA violated the Sacketts’ constitutional right to due process. It will also determine, as author Mark Steyn has previously noted, whether our “law has been supplanted by ‘regulation’ – a governing set of rules not legislated by representatives accountable to the people, but invented by an activist bureaucracy.”

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