Feeds:
Posts
Comments

Posts Tagged ‘Priest Lake’

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.

 

Advertisements

Read Full Post »

By most accounts, it was a tough day for EPA in the Supreme Court on Monday. Although the Sacketts got their share of skepticism from the Justices, the EPA really took it on the chin during the oral argument of the Priest Lake wetland case.


KEA joined several other conservation organizations in a brief 
to point out that the Sacketts had ample opportunity to work with EPA and the Corps of Engineers to avoid the compliance order, and unnecessary expense, had they chosen to do so.

The issue before the court was whether a “compliance order” issued by EPA to the Sacketts for a Clean Water Act violation is immediately reviewable in a court. The Sacketts, who claim that their property has no wetlands and are therefore not under Clean Water Act jurisdiction, argued that there is no easy way to challenge EPA’s compliance order determination that a wetland exists. Moreover, they say, tough Clean Water Act penalties can accrue at a substantial rate. EPA, meanwhile, argues that the Clean Water Act doesn’t provide for an early hearing. Besides, the Sacketts would eventually get their day in court one way or another, and if EPA couldn’t prove their case, there’d ultimately be no penalties.

At the oral argument, the Supreme Court seemed openly skeptical about the compliance order. Rather than viewing it as a notice, or a warning, which would be followed by an EPA enforcement action, the Justices seemed inclined to consider it an action in and of itself. As such, they hinted that it was a “final” agency decision which should be subject to Court review.

However, Justices were also skeptical of the Sacketts’ argument that they should receive a hearing regarding the compliance order, but also if they were to lose on the wetland jurisdiction issue in the early hearing, they should get another chance to argue their case in a later enforcement case brought by EPA. In other words, EPA would have to prove their wetland case twice.

All of which goes to the real importance of the case. Enforcement of the Clean Water Act is difficult enough for EPA, which is already stretched thin. Compliance orders are designed to be a tool to shortcut formal proceedings – to provide violators with a less formal (and usually less expensive) route to compliance, without going to court and assuming all the risks and expenses that entails. If the Supreme Court finds that EPA’s compliance orders trigger additional hearings or other formalities, it will seriously impact the way Clean Water Act enforcement gets done.

Court watchers and EPA watchers are already speculating as to what EPA might do if the Supreme Court rules for the Sacketts. One guess is that the compliance orders may become less “order-like” and more “warning-ish.” A mere warning, everyone agrees, is not reviewable in Court. Would things be significantly better for the Sacketts if they had received a warning about a Clean Water Act violation as opposed to the compliance order they received? Doubtful. It could, however, delay the actual enforcement of obvious violations, which would also delay cleanup and restoration efforts.

Another guess, and most worrisome to conservation groups, is that EPA will abandon administrative processes and go directly to enforcement actions filed in court. Because of the complexity and expense of doing so, EPA might simply do less enforcement – which could be devastating for the country’s waterways.

Congress, of course, could fix all of this by clarifying what constitutes a wetland, and clarifying procedures. But that isn’t likely to happen any time soon with the current Congress. The Supreme Court’s decision is expected sometime this spring.

 

Read Full Post »

The Supreme Court wetland case involving a Priest Lake lot will be heard by the Court on Monday morning, and the legal and environmental pundits have been previewing the case. The Court has yet to rule on whether a brief by conservation groups will be filed, but a ruling could come as early as tomorrow. In the mean time, here are some of the more impressive previews:

The authoritative and well-respected SCOTUS blog has its preview by legal reporter Lyle Dennison here.

For the Center for Progressive Reform, law professor Nina Mendelson describes why the case is important to environmental enforcement and suggests reforms to avoid problems in the future.

Huffington PostWashington Post and the LA Times covered the issue recently.

Our friends (and hopefully co-friends-of-the-court) at Idaho Conservation League took note with this post.

UPDATED 1/7:  NRDC has a superb post here.

 

Read Full Post »

The USFWS wetland inventory map. An arrow shows the bulldozed Sackett property.

It took all of 5 minutes to create the above map, using the US Fish and Wildlife Service wetlands mapper. Had the Sackett’s taken the time to to look into it before bulldozing their property and filling it with gravel, or had they made a call to the US Army Corps of Engineers for an advance wetland determination, they could have avoided the legal mess that they find themselves in. 

Indeed, it is so easy that since 2008, Bonner County has required this minimal wetlands reconnaissance prior to granting Building Location Permits.

This map is not the final word, because before EPA actions can be enforced by a court, experts will need to discuss, for example, whether the map is accurate, whether the soils are wetland soils, and whether the plants are wetland plants. Foremost, the EPA will need to prove that there is federal jurisdiction, by proving there is “a significant nexus” to “navigable water.”

Ultimately, the Sacketts could very well be right about the non-existence of wetlands on their property. Still, a modicum of due diligence should be a prerequisite for a Supreme Court case of Constitutional due process.  It takes very little effort to avoid EPA enforcement actions.

Read Full Post »

Well, it seems we’ve touched a nerve over at the Sacramento-based Pacific Legal Foundation. They are NOT pleased with our recent blog posting about the Priest Lake wetland case. Pacific Legal Foundation represents the Sacketts in their procedural fight with the EPA.

Of course, the “PLF Liberty Blog” doesn’t really take issue with our analysis. Mostly they are critical of our lack of outrage over the EPA’s use of their Clean Water Act authority. And they are critical of our emphasis on the procedural nuance lost in the broadly anti-EPA Fox News coverage.

So, to be fair we will officially admit it — we’re as ideologically-driven as they are.  But our outrage is more typically reserved for people who bulldoze wetlands without a permit.  As we wrote in our posting, the U.S. Supreme Court will tell us only how the wetland issue will get decided under the Clean Water Act.  Which is why we will reserve our outrage until a Court weighs the evidence on both sides.

 

Read Full Post »

If you only read what is coming out of congressional offices and only watched Fox News, you’d certainly think that local heroes Mike and Chantelle Sackett from Priest Lake are about to go to the Supreme Court and bring down the whole EPA.  Finally, they say, the overreaching federal agency and their wetland tyranny will be shut down once and for all.

Instead, at most, it’ll clarify a difficult procedural point in the Clean Water Act. Indeed, the Sacketts could win their Supreme Court case and still end up with wetland enforcement on their property by EPA. It’s just a matter of how that enforcement gets done.

The Sacketts have challenged a structural legal problem in enforcement of the Clean Water Act. Fundamentally, the EPA says there are wetlands on the property, the Sacketts say there are no wetlands. The question at the Supreme Court is essentially how that dispute gets resolved. The Sacketts say they should get to affirmatively go to court to immediately decide it. The EPA, and the lower courts, say the actual language in the law does not allow such a court challenge. Instead the Clean Water Act suggests that Sacketts can get a permit or they can defend against an enforcement action in a court. It is a major case because a wide range of environmental and other federal statutes are structured similarly.

An imperfect but illustrative analogy is that a speeder is pulled over for going 70 mph in a 55 mph zone. The speeder points to a sign, directly in front of the cop, that says “Speed Limit 70.” The cop issues the ticket anyway. The traditional remedy is that you appeal the ticket in Court. The Sacketts, however, are essentially arguing that they should get to go to court to dispute the facts before the cop even issues the ticket.

The case does raise an interesting question of fairness and “due process” perhaps. The Sacketts argue that the EPA determining that there are wetlands on their property means they either need to get a permit, which can be expensive, or they can be appeal a wetland violation in court, which can also be expensive. However, in truth, due diligence by the landowner, along with competent and honest advice from lawyers and land development professionals, will almost always avoid these wetland problems. (Mike Sackett, an excavation contractor of all things, should know this.)

Instead, in this case, we have an ideologically driven lawsuit by the ideologically driven Pacific Legal Foundation which may or may not decide a fine point of Clean Water Act enforcement procedure. So, don’t believe the hype. To be completely clear, what is not in dispute in the Supreme Court case is:  wetlands are regulated; EPA and the Corps of Engineers have regulatory jurisdiction and authority; if you fill wetlands you need a permit; and if you fill wetlands without a permit you are violating the law and you are subject to enforcement. When you get your day in court is the only issue to be determined.

Read Full Post »

The Bonner County Commissioners didn’t even blink when, yesterday, they approved the Sandpiper Shores subdivision on the north end of Priest Lake. The development crams 14 building lots on narrow uplands above a rare and valuable wetland habitat.  Ignoring several hours of testimony about wildlife impacts, wetland impacts, and legal inconsistencies, the Bonner County Commissioners unanimously allowed the development to move forward.

The 72 acre site contains more than 50 acres of undevelopable wetlands and highly important habitat. The developer, however, was given approval for a development density as if the entire site was developable. By doing so, the proposed site plan effectively chokes off wildlife passage to and from the wetland habitat. It also makes it impossible for the development to comply with setback requirements and wildfire protection guidelines that would have otherwise been required.

None of which bothered the Bonner County Commissioners for more than a half-second. What little deliberation that did occur focused on whether a proposed boardwalk to nowhere would be limited to “non-motorized” vehicles or, their favored, vehicles “without internal combustion engines.” Our congratulations to the Commissioners for arranging those particular deck chairs so nicely.

We expect that the Commissioners’ thin decision-making will lead everyone to a Bonner County courtroom. It was a bad decision for Bonner County, and a bad day for Priest Lake.

 

Read Full Post »

Older Posts »

%d bloggers like this: