Bob Unruh joined WND in 2006
after spending nearly three decades writing on a wide range
of issues for several Upper Midwest newspapers and the
Associated Press. Sports, tornadoes, homicidal survivalists,
and legislative battles all fell within his bailiwick. His
scenic photography has been used commercially, and he
sometimes plays in a church worship band
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
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.
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.
attorney, Damien Schiff, of thePacific
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
“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
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
“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.”
“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
“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
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.