A couple in Idaho, the Sacketts, paid $23,000 for a half-acre lot in 2005. They wanted a nice home site. It was close to Priest Lake. The Environmental Protection Agency stopped them. Here’s how.
The EPA declared the property “wetlands.” There is no scientific definition of “wetlands.” It’s simply announced by the EPA. It is a form of confiscation.
The EPS commanded them to stop construction. They own an excavation company. They knew the rules. They had been granted the various local permits. This meant nothing to the EPA.
The wife had consulted someone at the Army Cortps of Engineers, who told her that she needed no permit.
Rule: Always get it in writing.
The EPA issued an order requiring the Sacketts to put the land back the way it was, removing the piles of fill material and replanting the vegetation they had cleared away. 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 them up to $32,500 a day until they complied.
They wanted a hearing in federal court. They sued. No success. Two lower courts turned them away. They had to wait for a federal judge to enforce the ortder.
But the EPA was enforcing the order. Cross them, and it’s $32,500 a day.
Restoring the property as the EPA demanded made no sense to them. It would cost hundreds of thousands of dollars, they say, and if they ultimately won the case they’d have to clear the land a second time. But defying the order potentially meant racking up $32,500 in fines each day—and perhaps criminal liability if they continued with construction—while they waited for the EPA to decide whether to pursue the case. “It’s an unenviable choice,” says Damien M. Schiff of the Pacific Legal Foundation, a Sacramento-based property rights group that is representing the couple for free. “It’s really almost no choice at all.”
The EPA issues as many as 3,000 of these orders every year. People comply.
“The compliance order tool is one of a few mechanisms that EPA has to resolve, and resolve quickly, pollution problems,” says Jon P. Devine, a senior attorney with the National Resources Defense Council. The EPA argues the rules are reasonable. While fines may accrue, they won’t actually be assessed until the Sacketts have a chance to make their case to a judge, it says. Agency officials declined to be interviewed.
The Sacketts were fortunate. Their case was taken by the Pacific Legal Foundation, a pro-private property public interest law firm. The case will be heard by the Supreme Court on January 9.
If it were not for public interest law firms, the growing tyranny of federal administrative agencies would be worse.