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Posts Tagged ‘Corps of Engineers’

An opinion piece published in the Spokesman-Review sheds some additional light on the Sackett case pending before the U.S. Supreme Court.

As we’ve written before, the Supreme Court is only deciding a procedural point about how and when the Sacketts can challenge an EPA wetlands determination. Even if the Sacketts win their Supreme Court case, they could still lose their challenge when both sides put their facts before a judge.  Indeed, based on the Spokesman-Review piece, the Sacketts may face an uphill battle.

In the Spokesman-Review, Michael Doherty, a retired biologist and wetland regulator with the Corps of Engineers writes fairly directly:

“I drove by the property in question for decades and know it is a wetland. It was frequently covered with standing water, soils were saturated, and it was covered with plants common to wetlands in the area. These are the three criteria used to identify wetlands under federal guidelines, and the property meets them all.

Beyond the science, an average person would see it is located at the bottom end of a large drainage and is very wet. Yet they claim the lot is not a wetland. So why did they need to haul fill with dump trucks for three days to prepare it for construction of their house?

The $23,000 price for two-thirds of an acre lot located less than 100 yards from the shore of Priest Lake speaks volumes. The typical price of vacant Priest Lake property is much higher and points to the substandard nature of the property as a home site. As excavation contractors, the Sacketts were amply equipped to fill the lot and prepare it for building.”

The wetland shows up in the USFWS wetland inventory. The Sacketts’ own consultant said it was likely a wetland. (Until they changed consultants, of course.)  Just because the property contains a wetland doesn’t necessarily mean that the EPA and the Corps of Engineers have jurisdiction.  But these facts and circumstances are obviously not very helpful to the Sacketts when the case comes back to Idaho after its trip to Washington, DC.

Doherty writes:

“Though portrayed as such, this is not a case of the Sacketts versus a big government fabricating a case against them. The EPA does not fabricate cases because there are wetland violations all around us, and only the most egregious are pursued. The facts of any case are analyzed and reviewed by managers and attorneys and, if weak, it does not go forward to any enforcement action, let alone to administrative orders with possible legal action. The analysis includes impact to private property rights as well because taking private property without just compensation is illegal and the government looks very carefully at this issue before making any regulatory decisions.”

Indeed, as the adage goes: When the law is not on your side, you argue the facts; when the facts are not on your side, you argue the law.  The Sacketts have been arguing the law fairly effectively. As this piece points out however, the facts have yet to be heard.

 

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On Monday, the U.S. Supreme Court will hear oral arguments in the case of Priest Lake residents Mike and Chantell Sackett.  We’ve written about this complicated wetlands case before. The Sacketts are suing the EPA over a wetland determination on their property, and that a compliance order issued by EPA in the case should be immediately reviewable in a Court.

In support of the Sacketts’s position, some 13 parties filed “friend of the court” briefs to expand on the Sackett’s arguments, including heavyweights like the Farm Bureau, U.S. Chamber of Commerce, the National Association of Manufacturers, the National Association of Home Builders and General Electric.  However, when KEA joined with NRDCWaterkeeper Alliance, and several other Idaho conservation groups to file a similar brief in support of the EPA, the Sacketts filed a rare objection. The Supreme Court will likely decide whether or not to allow our brief in the next several days.

At issue is the fact that the scenario the Sacketts outline for the Court does not entirely comport to what actually happened. Documents obtained by environmental groups – including a timeline written by Chantell Sackett herself – paint an entirely different picture.

The Sacketts, who argue to the Court that they were blindsided by an EPA Compliance Order regarding the existence of wetlands on their property, fail to acknowledge to the Court that the EPA and their own consultant told them about the wetlands months earlier. (Much later, the Sacketts evidently hired another consultant more to their liking.) The Sacketts who argue about the heavy hand of the EPA fail to acknowledge to the Court that they had ample opportunity to work with EPA to resolve the issues for almost six months prior to receiving the compliance order and for months afterward. The Sacketts who claim that the wetlands permitting process and risk of fines would be financially devastating and would therefore violate their due process rights, fail to mention that an “after the fact” permit would have been very easy and inexpensive to obtain and was offered by the Corps of Engineers as an option.

The Sacketts do not dispute any of these facts. They do, however, in their opposition to our filing, try to explain them away and diminish their significance to the narrow procedural case before the Court.

Indeed, the Supreme Court may decide that the issue of whether the Sacketts’ story holds up or not is the Supreme Court’s problem, and is rather the Sackett’s problem for a later date. The theoretical issues identified by the Supreme Court in granting their review remain the same. The problem, we believe, is that the Supreme Court doesn’t decide theoretical issues, they decide actual cases. We simply believe they should have all the information in this actual case.  We’ll let you know if the Court lets us give our version of the story.

 

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The lawsuit we filed against the U.S. Army Corps of Engineers over the Rosenberry Drive trees has been almost universally well-received. Other than a few crazed online comments from the anonymously insane, we’ve received nothing but well-wishing for our effort. Even the Coeur d’Alene Press — no fan of environmental litigation — came out in favor of our lawsuit.

Despite what some people might think, going to court is not something we take lightly. A KEA lawsuit is actually quite rare. We are extremely careful that both the facts and the law are on our side, and that the issue is significant enough to expend the time and money and effort. Indeed, this is true for the vast majority of conservation organizations. It is easy to call a lawsuit frivolous, but very few of them really are. Quite literally, we can’t afford to lose many court cases.

Still, when laws are clearly violated, when the environment is clearly at stake, going to court needs to remain an option. Lawsuits should never be the first option, but they should always be available as a last resort.  Unfortunately, access to the courthouse by conservation organizations is under attack. Congress has attempted to make some laws flatly unreviewable in court. Congress has attempted to limit government payment of attorney fees, even in cases where the government loses. And there are increasing attacks on university legal clinics which, like Gonzaga Law in our case, provide pro bono representation to low income people and public interest organizations without the ability to pay.

Courtrooms are inefficient and expensive places to resolve disputes, but courts do the job with authority and finality. The rule of law is what provides civilizations with actual civilization. Courts provide an honest way of dealing with honest disputes. We’re glad that this particular lawsuit is so popular, but we’re also glad that unpopular ones can be resolved the same way.

 

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Today, Kootenai Environmental Alliance filed a lawsuit in federal court challenging the U.S. Army Corps of Engineers mandate to remove the trees along the Rosenberry Drive (“The Dike Road”) in Coeur d’Alene.  The lawsuit alleges that the Corps failed to perform an adequate environmental analysis, and that the Corps is attempting to enforce a memorandum that isn’t actually a law. The Gonzaga University School of Law’s Environmental Law Clinic represents Kootenai Environmental Alliance in this case.

In an inspection just over a year ago, the Corps of Engineers cited the City of Coeur d’Alene for more than a hundred maintenance deficiencies on the flood control equipment that purportedly protects North Idaho College and the Fort Grounds neighborhood from flooding. Among the deficiencies cited by the Corps was the fact that the hundreds of mature Ponderosa pine trees that line the earthen levee portion were in violation of the Corps’ standing vegetation policy for levees.  To correct the deficiency, the City of Coeur d’Alene was instructed to cut the trees, remove the roots, and re-construct the levee embankments. To maintain the critically important certification for the levee, the City was given two years to comply.

The KEA lawsuit alleges that, at some point, the Corps of Engineers should have performed some sort of environmental analysis for the vegetation removal – either at the national program policy level, or at the local implementation level.  The Corps has essentially done neither, which KEA alleges is in violation of the National Environmental Policy Act (NEPA).

We believe an environmental impact statement, if actually done, would show that the Corps policy would be devastating to the City of Coeur d’Alene, as well as communities around the country facing similar mandates. Moreover, a hard look at the environmental impacts would also show that there is essentially no scientific basis for a sweeping one-size-fits-all tree removal requirement.

In the lawsuit, KEA also alleges that the requirement that the City remove the trees is derived essentially from a Corps of Engineers memorandum, not actual regulations. For regulatory requirements to be enforceable, they should have been published in the Federal Register and opened up to the public for comment. That didn’t happen.

In many respects, the KEA lawsuit mirrors a lawsuit filed in California regarding the Corps of Engineers vegetation policy that would require removal of a huge swath of habitat in the Sacramento region. That lawsuit is still pending, and was recently joined by the California Department of Fish and Game.

The Corps of Engineers will be officially served with the lawsuit in the coming days. The complaint (a 20 page pdf) is available here:

2011-12-07 Complaint KEA v Army Corps

 

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Here’s the thing to remember. We live in the United States of America. We are a nation of laws. We have a Constitution that gives Congress the authority to pass laws under enumerated powers. One of those powers is provided by the Constitution’s commerce clause. Congress passed the Clean Water Act. The Supreme Court has affirmed that, within commerce clause limits, the Clean Water Act is constitutional.

Under the Clean Water Act, within these jurisdictional limits, you cannot fill a wetland without a permit. If you do so, you are subject to enforcement. If you do so intentionally, you are subject to criminal enforcement.

These are facts. They are not arguable.

Agreed, there is significant uncertainty as to the jurisdictional limits. The Supreme Court has issued an almost impossibly complex test for jurisdiction that the lower federal courts are still figuring out. Still, if you have wetlands on your property, the prudent thing would be to make a phone call to the EPA or Corps of Engineers BEFORE firing up the bulldozer. Filling them first and asking questions later is at your own risk.

Ignorance is not an excuse. And it really shouldn’t be a rallying cry either.

 

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With the generous assistance of our local Congressman, the dike road tree petitions are on their way to Washington DC. This morning, Adrienne and I delivered the stack of signatures to Rep. Raul Labrador’s Coeur d’Alene office. The Congerssman’s staff says they will take it from here.

Our petition is directed at Hon. Jo-Ellen Darcy, the U.S. Army Assistant Secretary for Civil Works, whose office is in the Pentagon. We’re asking her to reconsider the U.S. Army Corps of Engineers’ policy that may require the City of Coeur d’Alene to remove all the trees from the earthen levee separating the beach from North Idaho College.  It says simply:

“We, the undersigned, object to the levee vegetation policy as currently implemented by the U.S. Army Corps of Engineers, which would result in the removal of hundreds of trees along the Rosenberry Drive levee embankment in Coeur d’Alene, Idaho. The trees are not a danger to flood control, and they provide the city with significant and irreplaceable environmental, aesthetic, and recreational values. We urge you to reconsider the policy so that we may preserve our trees.”

Our final tally came in at just over 4400 signatures, which is a remarkable total for our small North Idaho community. Although we had a handful of out-of-town signers, most were from the immediate area, with the vast majority from Coeur d’Alene.

Congressman Labrador’s office assures us that the stack of signatures will land on Secretary Darcy’s desk in the very near future, and the Congressman’s great staff will keep us informed of the progress. Thanks to everyone who signed the petition, and special thanks to Rep. Labrador for being sure it will be delivered.

 

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KEA obtained a press release announcing that California’s Department of Fish and Game will be joining a lawsuit brought by environmental groups fighting the Corps of Engineers’ policy requiring vegetation removal from levees. The lawsuit alleges that the Corps failed to perform a proper NEPA analysis on the levee vegetation policy and that the policy violates the Endangered Species Act.

Coeur d’Alene’s problem is horrible, but California’s may be worse — requiring miles and miles of tree removal and habitat destruction at a $7.5 billion price tag. Having a state agency involved in the litigation puts significant additional pressure on the Corps. KEA is currently reviewing the filings in the lawsuit for possible application to Coeur d’Alene’s dike road trees.

The California Department of Fish and Game press release dated November 9th:

The California Department of Fish and Game (DFG) today commenced the process to join federal litigation that challenges the removal of vegetation on levees. 

The case, Friends of the River, et. al. v. United States Army Corps of Engineers, et. al. was filed in the U.S. District Court for the Eastern District of California. It essentially challenges the Army Corps of Engineers’ (Corps) adoption of a national policy that requires removing virtually all trees and shrubs on federal levees. 

DFG, along with many other local, state and federal agencies, has been in discussion with the Corps about this policy for several years, said DFG Director Charlton H. Bonham. Its unfortunate that the discussions havent led to a more agreeable outcome, but if adhered to, the policy will do incredible damage to Californias remaining riparian and adjacent riverine ecosystem, especially in the Central Valley.

Roundtable discussions on the policy have included the California Department of Water Resources (DWR), Central Valley Flood Protection Board, National Marine Fisheries Service and U.S. Fish and Wildlife Service. DWR and DFG have repeatedly expressed concerns about the policy in letters to the Corps. The policy has also received pushback from farmers and other water users.

The Central Valley is home to the Sacramento-San Joaquin River Flood Management System. This flood protection system has approximately 1,600 miles of federal project levees along the Sacramento and San Joaquin rivers and tributaries. This policy would require removing most of the remaining five percent of riparian forest there.

Riparian habitat is essential for several endangered species including Chinook salmon, Central Valley steelhead, Valley elderberry longhorn beetle, riparian brush rabbit, Western yellow-billed cuckoo and Swainson’s hawk. Moreover, the riparian habitat provides scenic beauty and recreational enjoyment for people up and down the river.

The policy adopted by the Corps fails to comply with either the National Environmental Policy Act or the federal Endangered Species Act.

Historically, the Corps has allowed and even encouraged the planting of trees and other vegetation on California levees. They have even collaborated with state and federal agencies in developing levee design approaches intended to benefit federal- and state-listed threatened and endangered species. The new policy directly conflicts with their past actions.

DFG and DWR estimate that complying with the Corps’ policy could cost up to $7.5 billion and divert funds away from more significant levee deficiencies like seepage and erosion.

DFG seeks to join current plaintiffs in the case including Friends of the River, Defenders of Wildlife and the Center for Biological Diversity.

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