It's all wetlands: Supreme Court will hear property rights case


Mike and Chantell Sackett run an excavation business in the Idaho panhandle. Back in 2005, the couple bought a 0.63-acre lot in a subdivision about 500 feet from Priest Lake. There are several homes between the Sackett lot and the shore, The Washington Post reports. Mr. Sackett worked on the construction of one and says it required no special federal permit.

In 2007, the couple obtained local building permits and began to fill the lot in preparation for building their dream home. Three days later, officials from the EPA and the Army Corps of Engineers ordered work to stop, claiming they thought the land might contain wetlands. "How can you call it a wetland when it's a lot in an existing subdivision that has a sewer hookup?" asks Mr. Sackett.

The agency subsequently ordered the Sacketts to restore the site to its natural state before construction could begin. Failure to follow the orders could make the couple liable for fines of up to $37,500 a day -- almost $15,000 more per day than they paid for the land.

The EPA contends that was "a starting point for negotiations," The Post reports. The couple respond by describing a bureaucratic maze that left them convinced they'd never be able to build so long as the EPA's contention that the land contained "wetlands" was allowed to stand.

This month, the U.S. Supreme Court will hear their case.

"This is what happens when an overzealous federal agency would rather force compliance than give any consideration to private property rights, individual rights, basic decency or common sense," says U.S. Sen. Mike Crapo, R-Idaho.

So far, lower courts have agreed with the government that the agency's compliance orders are not subject to judicial review. The Sacketts and the Pacific Legal Foundation respond that even the prospect of waiting to see whether the EPA will go to court -- it has years to make the decision -- deprives the couple of their property rights, leaving them "to the mercy and whim of EPA."

But putting aside the fact that the EPA now embraces a definition of "wetland" that can refer to a piece of land where water pools and stands for as little as a couple of days per year after a heavy rain, the issue before the high court is narrow: whether the Sacketts can challenge the EPA's initial finding that their lot contains wetlands.

The danger of a Sackett victory, argue environmental extremists, is that it could allow "major polluters" to tie up the EPA in litigation. Perhaps. But our constitutional protections -- in this case, the Fifth Amendment's takings clause -- don't exist to make things easier for the government. Precisely the opposite. Compliance orders and the threats of heavy fines are meant to intimidate targets into knuckling under while allowing heavy-handed bureaucrats to avoid worrying about such onerous rigmarole as the Fifth Amendment, property rights or due process.

And let's hope the court sees things in a similar fashion.

 

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