SUPREME COURT:

Idaho couple's permit fight drags wetlands back to high court

PRIEST LAKE, Idaho -- Sitting unobtrusively across the road from a pristine lake in the northern Idaho panhandle, the half-acre lot covered with weeds and piles of gravel isn't much to look at.

And yet, in a few months' time, the nine justices of the U.S. Supreme Court will decide its fate.

For four years the land has sat idle while its owners, Mike and Chantell Sackett, have been locked in a fight with U.S. EPA.

What started as a routine disagreement about whether the Sacketts needed a Clean Water Act permit to build their dream home on the site has morphed into a high-stakes legal battle that has reached the nation's highest court.

Sackett v. EPA, which is likely to be argued in January, is one of two environmental cases the court has on its docket for the 2011 term, which begins Oct. 3. The other is PPL Montana v. Montana (Greenwire, June 20).

Sitting in the office at his contracting and excavation business in the village of Priest Lake, just down the road from the disputed site, Mike Sackett cannot quite believe what's happened.

"What are two people from northern Idaho doing going to the Supreme Court?" the jovial 45-year-old said, shaking his head. "It's overwhelming."

Dream house

Just yards from the Sacketts' currently abandoned property, the clear waters of Priest Lake -- named after the Jesuits who were among the early European visitors to the area -- lap the shore.

Heavily wooded on all sides, a large chunk being part of the Idaho Panhandle National Forest, the lake has become a magnet for outdoor recreation in recent years.

When Chantell Sackett, 42, first laid eyes on their parcel in 2005, she saw an opportunity to fulfill a fantasy.

"I always wanted to live on the lake," she said.

The Sacketts could not afford to buy a pricey house directly on the shore, but the 0.63 acre plot was close enough that if you stand in the right spot you can see the water glistening a couple of hundred yards away. From the rear of the property, there would be direct access to the water, albeit across a road.

A friend sold them the site for $23,000. By 2007, having obtained building permits from the county, the Sacketts began the building process by spreading fill material over the lot.

Then, one day, three people showed up: two from EPA and one from the Army Corps of Engineers.

It was only then, the Sacketts say, that they learned that their property could be a wetland and that developing it would require a permit under Section 404 of the Clean Water Act.

By their account, EPA wasn't interested in negotiating.

"I think EPA are bullies," Chantell said. "They come in and do what they want -- and intimidate you."

Officials wanted the site restored before the Sacketts could even consider applying to the Army Corps of Engineers for the permit required before fill material can be placed on a wetland.

A spokesman for the Army Corps confirmed that, under an agreement between his agency and EPA, the corps could not process a permit application until the enforcement action was concluded even if the Sacketts were willing to play ball.

In some ways it is a moot point as the Sacketts don't want a permit. They don't think their property is a wetland.

EPA subsequently sent the Sacketts a compliance order that told them to restore the site or face penalties, including fines of as much as $32,500 a day.

Once that noticed was issued, the Sacketts were left with few options.

EPA declined to comment on the case or permitting disputes in general.

In court papers, lawyers for the agency note that the compliance order, while warning the Sacketts of possible fines, also encouraged them to contact EPA and discuss the matter if they disagreed with the finding.

The agency also points out that the order was revised three times, giving the Sacketts more time to get in compliance.

"Petitioners did not comply with the order," the court filing says.

Property-rights group gets involved

The case would likely have not made it to the Supreme Court if it weren't for the Pacific Legal Foundation, or PLF, a legal nonprofit based in Sacramento, Calif., which brings its own agenda to the table.

PLF has made a name for itself both as an advocate for property rights and a thorn in the side of EPA.

When the Supreme Court limited EPA's Clean Water Act jurisdiction in a 2006 case, Rapanos v. EPA, it was due to the efforts of PLF, which represented landowner John Rapanos.

Although PLF won the case, it did not get exactly what it wanted, as the splintered ruling, with no clear majority, left the question of how to determine federal jurisdiction over wetlands possibly even more muddled than it was before (Greenwire, Feb. 7).

In many ways, the Sackett case is a way for PLF to get at the issue again, some legal experts say.

"I think the plaintiffs are trying really hard to make it about wetlands," said Holly Doremus, an environmental law professor at the University of California, Berkeley, School of Law.

The reality is that the question before the Supreme Court has nothing directly to do with wetlands.

The issue is one of due process under the Fifth Amendment of the Constitution.

The Sacketts' lead lawyer, Damien Schiff, who will be arguing his first Supreme Court case at the age of 32, has asserted his clients should have the right to challenge the compliance order in court before EPA can commence any enforcement action.

His clients "aren't folks who try to cut corners, and we think they've been treated unfairly by EPA," Schiff said in an interview.

EPA counters that the Clean Water Act doesn't allow for any fines to be imposed until the agency pursues an enforcement action in court.

"EPA must file suit ... and establish to the court's satisfaction that the defendant violated the statute," the agency argues in its brief.

Anyone confronted with an enforcement action "therefore has a full opportunity to argue in the enforcement action that the order is invalid because the conduct on which it was premised did not violate the Clean Water Act," EPA says.

Thus, no due process violation.

It is a position that both the district court in Idaho and the San Francisco-based 9th U.S. Circuit Court of Appeals agreed with.

Other federal appeals courts have reached the same conclusion, but that did not stop the Supreme Court from deciding to hear the case.

Wider importance

The Sacketts' campaign against EPA -- not to mention the involvement of their well-known lawyers -- has attracted the interest of others who have similar animosity for wetlands permitting.

The National Association of Homebuilders, for example, urged the Supreme Court to take the case. The libertarian Cato Institute has also weighed in on the Sacketts' behalf.

The wider interest in the case highlights the fact that it could undermine EPA enforcement powers.

At the moment, EPA is "the police, judge and jury all in one," said Tom Ward, an attorney at the homebuilders' association.

Ward openly conceded that the case could pave the way for courts to get at the issues raised in Rapanos about Clean Water Act jurisdiction.

If people could challenge EPA jurisdiction over their property at an early stage, it would likely lead to a series of rulings that could clarify what has become a notoriously confusing area of the law, he said.

"That's better than what we have now," Ward added.

In defense of EPA, Berkeley's Doremus dismissed the notion that the agency regularly throws its weight around by initiating enforcement proceedings against individual property owners like the Sacketts.

That doesn't happen, she said, because both EPA and the Army Corps "have been stung" in the past by efforts that have backfired politically.

"In general, they don't push these compliance proceedings unless they think the landowners are thumbing their noses at them," Doremus added.

Depending on how the court rules, the case could end up having a broader impact on a whole range of EPA programs, according to Ben Grumbles, who was assistant administrator for water at the agency under President George W. Bush and the current president of the Clean Water America Alliance.

Many are watching to see if the case has "a significant impact" on other EPA pre-enforcement actions, he said.

For Schiff, the ideal solution would be if the Sacketts never have to apply for a permit after a lower court finds that there is no Clean Water Act jurisdiction.

But that is a long way down the road.

He conceded it is possible that, if the compliance order were thrown out, the Sacketts could simply apply for the permit from the Army Corps.

A confusing decision like Rapanos "would be the worst outcome for us," Schiff added.

'We all want clean water'

Back at Priest Lake, the Sacketts are openly vexed with what they view as EPA's overbearing behavior.

As registered Republicans in a red state, some of their rhetoric echoes complaints about EPA heard on Capitol Hill.

"We have never complained about paying taxes in this country," Mike Sackett said. "It's made us very bitter."

But unlike some outspoken Republican politicians, the Sacketts are adamant that their problem with EPA is more to do with the way officials have conducted themselves than any ideological animus they have against the concept of environmental regulation.

"I don't want EPA to go away," Mike said.

He gestured toward the lake he and his wife are so desperate to live closer to.

"We all want clean water," he said. "I can walk out and see the bottom of Priest Lake."

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