SUPREME COURT

Years after win, couple still battle EPA to build dream home

In 2012, an Idaho couple won big in the Supreme Court when the justices ruled they could bring a legal challenge against U.S. EPA enforcement actions that blocked the construction of their dream home.

Four years later, the couple are still duking it out against EPA in court. The site of the would-be home remains an empty lot.

Mike and Chantell Sackett had started to build a house in Priest Lake, Idaho, in 2007 when federal regulators showed up to tell them they didn't have the correct permits -- kicking off what has turned into an epic court battle.

The couple are back in the news this week as a similar case over wetlands permitting is heading to the Supreme Court for oral arguments. The same property rights advocates who helped the Sacketts win 9-0 in their case before the high court are representing landowners in this week's case that involves a peat mining company looking to challenge a government permitting decision, and they're hoping for another resounding victory.

Central to both cases are landowners who want to challenge government determinations that their properties are wetlands subject to costly Clean Water Act permitting rules.

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But the Sacketts' long legal fight shows that winning the right to challenge those determinations doesn't guarantee a swift resolution. Even if Hawkes Co. -- the North Dakota peat mining company due in court tomorrow -- wins the case, it may be years before it is resolved.

As for the Sacketts, "We're coming up on the ninth anniversary of when they were told to stop work on their home," said Anthony Francois, an attorney at the Pacific Legal Foundation who is representing the Sacketts in the legal fight that's now back in a federal district court in Idaho. "I think there's some frustration that it takes this long to get judicial review," Francois added.

In the Idaho district court, the Sacketts and EPA are waiting for a judge to determine whether EPA correctly found that the wetland on the Sacketts' property is indeed subject to Clean Water Act permitting rules and that the agency therefore acted reasonably when it found the couple had illegally spread fill material without a permit.

After the Sacketts had started to fill their property, EPA sent the couple a compliance order telling them to restore the site or face penalties, including fines of up to $32,500 per day. Even though the Sacketts didn't believe their property was a wetland, they weren't allowed to challenge EPA's determination in court.

The Supreme Court changed that in 2012, unanimously ruling that property owners facing potential enforcement actions under the Clean Water Act can seek judicial review before being forced to comply (Greenwire, March 21, 2012).

That landed the Sacketts back in the Idaho district court, where their court battle continues.

"Our hope is that we'll get a fairly timely decision on the summary judgment motions," Francois said. Meanwhile, he said, "the lot itself is certainly untouched." Through their attorneys, the Sacketts declined a request for an interview. But "I think they'd love to build their house there," Francois said.

The reality of the courts is a "big frustration that a lot of people experience," Francois added. "Certainly the Sacketts."

The Hawkes case heading to the high court this week involves a peat mining company that wants to challenge an Army Corps of Engineers decision -- known as a jurisdictional determination -- that its mining plans would require costly Clean Water Act permits. Like the Sackett case, this one will have broad implications for businesses and landowners across the country (Greenwire, March 28).

The Obama administration will argue that its determinations aren't "final agency decisions" subject to challenge in court and that landowners have other ways to challenge wetlands designations if they disagree with agencies' determinations.

Some legal experts argue that allowing these determinations to be challenged in court will open the floodgates to lengthy court battles where judges -- not agencies -- are determining what qualifies as a wetland subject to federal rules.

Property rights advocates and businesses, meanwhile, contend that landowners are entitled to challenge those determinations before the government thinks they should be able to.

"It is important to distinguish between the issue of when a landowner can challenge agency action under the Clean Water Act and the merits of that challenge," said Tim Bishop, an attorney at Mayer Brown who is representing industry groups supporting Hawkes in the case.

The Sackett case "enables a landowner to challenge agency enforcement action -- and [the Hawkes case] should authorize a challenge one stage earlier, when the agency makes the jurisdictional determination," Bishop said. He and others contend that the laws about what falls under Clean Water Act jurisdiction are still murky and that early challenges to agency decisions offer landowners important recourse.

For the Sacketts and others looking to challenge water permitting decisions, "having the right to mount a challenge buys you, in all likelihood, years of litigation and appeals," Bishop said.

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