Time to Take Action
Our Klamath Basin Water Crisis
Upholding rural Americans' rights to grow food,
own property, and caretake our wildlife and natural resources.

The government’s actions in a dispute between the Environmental Protection Agency and a husband and wife targeted by the agency when they bought a residential lot in Idaho and started building their dream home are both “outrageous” and “very strange.”

There were comments today from justices on the U.S. Supreme Court about the Environmental Protection Agency’s actions in a fight with Mike and Chantell Sackett, of Priest Lake, Idaho.

Their case began in 2005 when the Sacketts were working on their dream home. Their land, purchased for $23,000, is about two-thirds of an acre and is about 500 feet from the water in Priest Lake, Idaho. Houses are on the surrounding lots and their land lacked standing water or a creek. They obtained all the needed county permits for their work.

But while they were working on foundation preparations, the EPA agents arrived, claimed the property is “wetlands” and ordered them to stop work and launch a full restoration project that even included installing plants that were not native – at their own expense. They were told after they guarded the land for several years they would be allowed to pay $250,000 to request permission to complete their home.

“Constitutional Chaos: What Happens When the Government Breaks Its Own Laws”

They argued against the EPA decision, but got nowhere, so started a court case. It arrived at the U.S. Supreme Court after the 9th U.S. Circuit Court of Appeals ordered them to go through that extensive application process with the EPA – which is not allowed to start until they meet all of the agency’s demands.

The Sacketts’ attorney, Damien Schiff, of the Pacific Legal Foundation,argued that the EPA must be subject to the rule of law and the agency cannot simply issue orders violating others’ property rights without giving the owner his or her day in court to argue that the agency is wrong.

But some of the arguments that were on his side actually came from the justices. Samuel Alito suggested that the scenario was one that most homeowners would say “can’t happen in the United States.”

Elena Kagan said it was a “strange position” for the government to adopt in insisting that the property owner has no right to a hearing on such an order. And Stephen Breyer said it looked intimidating to him. “It said this is an order,” he said.

Chief Justice John Roberts Jr. turned the question back on Malcolm Stewart, the government attorney assigned to defend the EPA’s actions. “What would you do if you received this order?” he said.

Stewart wouldn’t answer.

Schiff explained to WND in an interview after the arguments that the focus is that the landowners should have had access to a hearing or some other way to challenge the government’s order without horrendous costs and loss of their property.

“The Sacketts cannot obtain judicial review of the compliance order…,” he said.

Alito noted it was “very strange” for a system that would require a party to apply for a permit to build on “wetlands” when the fact being challenged was whether the land was, in fact, “wetlands.”

Stewart also admitted under questioning from the justices that the penalties that the federal agency could apply to the family, if officials chose, would be $75,000 per day. That would be $37,500 per day for violating the Clean Water Act, even though that hasn’t been adjudicated, and another $37,500 daily for violating the mandatory “order.”

Given the four years that have passed since the dispute erupted, the total penalties at this point would be in the range somewhere above $110 million.

Mike and Chantell Sackett

Antonin Scalia called it the “high-handedness of the agency” when the EPA demanded the couple turn their land into a protected preserve, installing vegetation that wasn’t there before they started their project.

The government did not contest the recitation when Alito summarized what had happened:

“You buy property to build a house. You think maybe there is a little drainage problem in part of your lot, so you start to build the house and then you get an order from the EPA which says you have filled in wetlands, so you can’t build your house. Remove the fill. Put in all kinds of plants. and now you have to let us on your premises whenever we want to … you have to turn over to us all sorts of documents, and for every day that you don’t do all this you are accumulating a potential fine of $75,000 and by the way, there is no way you can go to court to challenge our determination that this is a wetlands until such time as we choose to sue you…”

Breyer noted, “For 75 years the courts have interpreted statutes with an eye towards permitting judicial review, not the opposite.”

Ruth Ginzburg noted that the couple had sought a hearing from the EPA over the controversy, “and the EPA said no.”

Schiff called the hearing tone and content “extraordinary.”

“The most significant thing is that the justices almost to a person had significant misgivings,” he said. “I think it’s fair to say that of the eight justices who asked questions every single one expressed misgivings.”

Chantell Sackett had described for a congressional hearing recently the shock when they found federal EPA agents on their land, ordering them to stop foundation work, “restore” the land with non-native species, fence it, guard it for several years, and then request a permission to continue their home project that in all likelihood would be denied.

“Bullying,” Chantell said.

“That’s what the EPA does. They came into our life, took our property, put us in limbo, told us we can’t do anything with it, and then threatened us with fines,” she said. “They use intimidation and we as American people, my husband and I, are fed up. We’re scared.

“They can’t be allowed to do this,” she continued. “It’s wrong. This is why we are suing the government, the EPA.”

Officials with the EPA repeatedly declined to respond to a WND request for comment. WND was referred to a Justice Department office, which also declined to respond.

“We are fighting for ourselves, and everyone in this country who owns property,” Mike Sackett told the congressional hearing recently.

The brief submitted to the Supremes by Pacific Legal Foundation explained that even though the Fifth Amendment to the U.S. Constitution requires that “no person shall be … deprived of life, liberty, or property, without due process of law,” the EPA claims through the Clean Water Act the authority to issue orders as it wishes and collect fines for “violations” – without court review.

In fact, the Sacketts’ case explains, they checked and their land was not listed on the EPA’s inventory of “wetlands,” and when they presented that detail to the government, were told it doesn’t matter.

“Any citizen engaged in a range of activities may run afoul of the act,” the appeal brief explains. “The Clean Water Act’s reach is extremely broad, requiring a permit for the discharge of ‘pollutants’ from a ‘point source’ into the ‘waters of the United States,’ which phrase has been interpreted by regulation to include ‘wetlands.’”

The regulations, the brief contends, had been defined so broadly by the EPA that they have pertained to “land that appears to be totally dry.”

“If the EPA has completed an analysis and made a determination that the property contains jurisdictional ‘wetlands,’ the citizen has no right to judicial review of that analysis. If the citizen hires professionals to conduct a ‘wetlands’ determination, EPA is not obligated to accept it. Despite any evidence, professional opinions, or agency advice the citizen obtains, EPA may still impose sanctions by a compliance order if it has ‘any information’ that” it wants to use to call it wetlands, the brief explains.

Further, the EPA’s “compliance order” demands that the private property owners give the EPA full access not only to the lands but to their private records about what is done to the land.

“Given that the order is not based on probable cause, it withdraws the Sacketts’ constitutional right to be free of unreasonable searches by requiring them to grant access to ‘all records and documentation related to the conditions at the site and the restoration activities conducted pursuant to this order.’”

“We believe property owners should have their day in court, and the EPA has to be subject to the rule of law,” Mike Sackett said.

The congressional hearing testimony:

According to attorneys and investigators who have worked on the case, the EPA itself never did a formal analysis of the property until after telling the Sacketts to halt work because of its “wetlands” designation.

“The EPA still hasn’t done a hydrological analysis of the Sacketts’ property – and that’s the only certain way to make a ‘wetlands’ determination,” a case source told WND.

“The case before the Supreme Court isn’t about what the Sacketts can or can’t do – it’s about what EPA can do to landowners without having to answer to the courts, the law and the Constitution,” the analyst said.

On the case:

“When the government seizes control of your land, and you disagree with the justification, shouldn’t you be allowed your day in court? Just as important, should EPA be a law unto itself, without meaningful accountability to the courts and the Constitution?” Schiff has told WND.

Schiff said there is “no question that the power the EPA is claiming it has under the Clean Water Act is significant.”

“Even if you have a good basis to think the EPA is wrong, the EPA won’t let you get into the courthouse,” he said. “They are able to shut the courthouse door by issuing compliance orders that are not judicially reviewable.”

That puts a landowner in the impossible situation of either complying with the order with its potential cost of tens of thousands or even hundreds of thousands of dollars or facing that same penalty in fines.

The Sacketts’ legal team noted that between 1980 and 2001, the EPA issued up to 3,000 compliance orders every year across the nation.

“The reality of the Sacketts’ situation is that they have been unambiguously commanded by their government not to complete their home-building project, to take expensive measures to undo the improvements that they have made to their land, and to maintain their land essentially as a public park until the property is ‘restored’ to the satisfaction of the EPA. They have been threatened with frightening penalties if they do not immediately obey; but they have been refused the prompt hearing they should have received as a matter of right in any court,” Pacific Legal argued.


Add New Comment

  • Image
Real-time updating is paused. (Resume)

Showing 10 of 75 comments

  • leonard_oregon
    This is the sort of thing that has been going on in Wallowa County, Oregon ever since 1974.  I was in the building contracting business and in 1974, things went all to heck when DEQ, EPA, and a bunch more poisonous combinations of the Alphabet as new socialistic agencies came into existence.  

    Then came all the wilderness crap, all the sawmill shutdowns, wilderness areas.  "Reintroduction" of the wolves and Billy Goats.

    My illustrious career ended with a false accusation by CPS in 1999.

    Yes I DO have "a attitude" about all this harassment, sabotage, threats, coercion from tyrannical and totally unconstitutional government socialist agencies.

    Leonard Henderson, co-founder 
    American Family Rights 
    "Until Every Child Comes Home"© 
    "The Voice of America's Families"©
  • A few years ago the EPA changed the defintion of a wetland to that being that any puddle can make your land a wetland. At the time, there was a few articles saying this is terrible, though we sat by and did nothing. We continue to sit here like a frog in boiling water. Everyday new rules keep inching us toward a nation without rights for citizens. What do we do? We post and complain and nothing gets fixed. Remember the poem about the Nazis? "When they came for the Jews I did nothing." "Now they come for me and there is no one left to stand up any longer." the DOJ sues states for enforcing federal laws. They give guns to warlords. The president gives missile secrets to the Russians, while reducing the military by 20%. He appoints without senate approval. He creates new regulatory agencies without oversight for financial, healthcare, energy and environment. He overturns hundreds of years of bankruptcy laws. He gives tax dollars to his friends. He denies a company to bid on airplane contruction because someone criticized him. He won't declare national emergency to states that don't vote for him. He bribed senators to vote for healthcare takeover. He created a national system to shut down all airways for radio broadcasts. When will we stop him?
     show less
  • EPA and the IRS .. to rats in charge of everything oh and add the FDA so make that three RATS
  • btrfli67
    God gave the land to the people, not the government. I can see why the Republicans want to shut down the EPA. They're probably not even a constitutional entity anyway.
  • jaquebauer
    The EPA has powers that violate the Law of the Land-Our precious Constitution.  They act as the GESTAPO-  and get away with it.    After we throw Obama on his little A*s,  the EPA must be dismantled.  To declare gases in the atmosphere essential for life as toxic substances, and willfully use rigged data and fudged test results in their Global Warming fantasy, is evidence it is run by loons and idiots, and answerable to no one-even the Supreme Court it seems.

    The day is near the EPA must be dismantled and burned at the stake.  Make it in early 2012, and the better off we all shall be.
  • The EPA acts like a lawless terrorist police state. To threaten a small business owner with 110 million dollars in fines with NO recourse?? That IS terrorism. They are disgusting. The petty desk  bound tyrants that did that to the Sacketts, should go to jail and be sued personally for the crimes they have committed. That's the problem: they answer to No one! They can do anything to anybody and no one can even question them in return without having their lives destroyed. That's the real issue here, not just this one case. This is the same issue with government agencies across the US. They behave like the Kings of old. The New Kings. "I command this or that or off with your heads". Let's hope the Supreme Court still understands what America is all about and rules properly and promptly for the rule of law.
  • classicfit
    Having worked as a civil engineering project manager for 25 years on numerous projects in Florida on lands dubiously referred to by regulatory agencies (local EPA-delegated surrogates) as "wetlands", I can testify to the arrogance and rogue attitudes of these types of bureaucrats. They are governed only by themselves, and I hope this case sets enough precedent to reign in their repeated violations of property rights. The EPA took the loose framework of the Clean Water Act legislation, and wrote their own rules which in effect are their own laws. That Congress allowed this to happen is unconscionable, but now the same thing is being done with Obamacare. The rules that anonymous bureaucrats are writing under the aegis of this monstrous legislation are truly frightening, but most people are unaware of them so far. Obamacare MUST be repealed because of this, just as the EPA needs to be put back in its cage.
  • Further evidence that a repeat of the original revolution is in order.
  • They would not be laughing if these Sacketts sued them (agents specifically) for enfringement of their civil rights, trespassing, harrassment, and about 10 other things. Can't beat the governement but go after their employees.
  • btrfli67
    If you sue the government, you sue the taxpayers.
Home Contact


              Page Updated: Wednesday January 11, 2012 02:34 AM  Pacific

             Copyright © klamathbasincrisis.org, 2001 - 2011, All Rights Reserved