Challenging an unwarranted “wetlands” designation in Idaho

Dear ,

 

Imagine buying a small parcel in a residential neighborhood, and starting to put down gravel in preparation for building a house.  But then, suddenly, federal bureaucrats swoop in to say they control your property and you can't build a thing on it!

Moreover, they order you to remove the gravel and restore the land to their liking - or you could face thousands of dollars per day in fines!

This is the nightmare facing Chantell and Michael Sackett, of Priest Lake, Idaho.  To learn how PLF attorneys are fighting for them, read on.

Rob Rivett

President
Pacific Legal Foundation

EPA's victims deserve their day in court

Through a "compliance order," without warning or hearings, EPA told the Sacketts they cannot do anything on their land, because-the agency claims-the property is "wetlands" that EPA has control over. This claim is highly dubious, and the Sacketts want to contest it in court. But they're being denied that opportunity.  A three-judge panel of the Ninth Circuit ruled they can't get judicial review unless they first go through the likely futile process of applying for a federal wetlands permit.  That could cost $200,000 - more than the value of their land!  And they might not be allowed to start the application process for years! Representing the Sacketts pro bono, PLF is fighting this outrageous price tag on justice.  PLF attorney Damien Schiff explains our next step.

Sackett v. Environmental Protection Agency

Contact:  Damien M. Schiff

Status:  Matter did not resolve through mediation. Adverse decision issued by Ninth Circuit on September 17, 2010. PLF is planning to file certiorari petition to the U.S. Supreme Court.

Summary:
The Sacketts own a small lot in Bonner County, Idaho.  The lot contains some wet areas and is part of a nearly built-out subdivision.  The lot lies approximately 500 feet from Lake Priest, a navigable water body.  There is no direct hydrological connection between the site and the lake.  However, contrary to the recent Rapanos decision, the EPA claims the wet areas on the lot are jurisdictional wetlands subject to the Clean Water Act.  When the Sacketts placed fill material on the lot for the construction of a home, the EPA issued an administrative compliance order directing the Sacketts to remove the fill and restore the lot to its original condition.  According to the EPA, failure to comply with the order may subject the Sacketts to civil penalties up to $32,500 per day per violation and administrative penalties of up to $11,000 per day for each day of violation.

The Sacketts contest the EPA’s findings but the agency refuses to give the Sacketts a hearing to determine if the Clean Water Act applies.  Thus, without any actual proof of federal jurisdiction, the Sacketts must either restore the lot at great expense or subject themselves to civil and criminal penalties.  This violates constitutional due process.  PLF represents the Sacketts in a court action designed to force the EPA to hold such a hearing.