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Posts Tagged ‘Sackett’

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.

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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.

 

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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.

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