Chantell and Michael Sackett have lost their appeal before the 9th U.S. Circuit Court of Appeals, with the court ruling that their property includes wetlands that can’t be filled without a Clean Water Act permit.
We hope the couple is able to get the ruling overturned, if for no other reason than the Sacketts previously won an important decision against the Environmental Protection Agency that established due process rights for all property owners facing the government’s regulatory bureaucracy.
The lawsuit came to national attention nearly a decade ago, when the U.S. Supreme Court allowed the couple to challenge a federal order that accused them of unlawfully altering wetlands to build a house near Priest Lake, Idaho.
The Sacketts had planned to build a house in a subdivision near Priest Lake in the northern part of the state. After they had already begun site work on the land, the EPA ordered them to stop, remove all fill, replant it and monitor it for three years. If they didn’t, they’d have to pay fines of up to $32,500 a day.
The Sacketts then found that they could not proactively challenge the compliance order in court. They could only argue their case if they ignored the order and were taken to court by the EPA. The fines would begin to rack up over the months it would take for the case to make its way onto the docket. If they lost, they could owe millions in back fines in addition to the costs of restoring the site.
Property owners facing compliance orders were over a barrel. They were either forced to submit to terms dictated by the agency and lose the intended use of their property, or they could defy the order and find themselves defendants in a lawsuit brought by the government.
Faced with extreme penalties, few property owners could afford to defy the orders.
As a result, the EPA rarely had to prove its underlying findings. Property owners surrendered, in practical terms admitting guilt. Comply or pay dearly — it was a thuggish shakedown scheme.
Nonetheless, the Sacketts pressed their case. Though they lost at the trial level and at the 9th Circuit Court of Appeals, the Supreme Court unanimously held that the Sacketts, and other property owners, can challenge EPA orders without the threat of ruinous fines hanging over their heads.
The court left unsettled the underlying question of the legitimacy of the EPA’s original finding. Unfortunately, thus far the Sacketts have not triumphed. Their last hope is another Supreme Court victory.
Win or lose, the Sacketts already have struck a blow against tyranny.