Property Rights For Sale, Inquire With the EPA

In 2005, Mike and Chantell Sackett bought a piece of land in Idaho, and set about building a modest home on their $23,000 lot.  The dreadful flaming eye of the Environmental Protection Agency soon turned upon them, and they were told their little half-acre parcel of land, which is located about five hundred feet away from a lake, was a federally protected wetland. 

If you’re familiar with the EPA, you can guess what happened next.  As Bloomberg Businessweek reported in April 2011:

The Sacketts say they were stunned. The owners of an excavation company, they had secured all the necessary local permits. And Chantell Sackett says that before work began, she drove two hours to Coeur d’Alene, Idaho, to consult with an Army Corps of Engineers official. She says the official told her orally, though not in writing, that she didn’t need a federal permit. “We did all the right things,” she says.

The EPA issued an order requiring the Sacketts to put the land back the way it was, removing the piles of fill material and replanting the vegetation they had cleared away. The property was to be fenced off and the Sacketts would be required to submit annual reports about its condition to the EPA. The agency threatened to fine them up to $32,500 a day until they complied.

There is something dreadfully wrong with our government when people who own an excavation company can get past the local permit offices, and the Army Corps of Engineers, and still “break the law” in a manner that should be punished by five-figure daily fines.

At this point, the Sacketts entered one of those delightful regulatory mazes lined with the bones of American liberty and prosperity.  Complying with the EPA’s demands would cost them an estimated $27,000, and the result would be a $23,000 slice of carefully restored, utterly useless land.  Defiance would bury them under those gigantic daily fines. 

They wanted to contest the agency’s wetlands designation in court, having obtained certifications from a biologist and a soil expert that their property was not a wetland… but discovered that only the EPA could initiate such a proceeding, and they didn’t feel like nipping over to the courthouse to get the ball rolling.

If the Sacketts wanted to jump-start the court case, why, all they had to do was plunk down a few hundred thousand dollars to buy a permit from the EPA, and when the agency denied it, everyone could repair to the courthouse and bust out their soil samples.

In other words, Americans have God-given property rights, which they are free to exercise at the EPA’s convenience, provided they’re willing to fork over thirty-two thousand dollars per day while they wait.  All to determine the fate of a property worth less than one day’s non-compliance fine. 

The EPA assures us this is “reasonable,” because the fines are accrued until court actions are decided.  Oh, well, that’s totally different, then!  You’re allowed to assert your property rights at the EPA’s convenience, and take your chances in court… provided you’re ready to pay hundreds of thousands of dollars in accrued non-compliance fees if you lose.  That sounds like a fair and reasonable procedure for a middle-class couple trying to build a three-bedroom house on half an acre of land to follow!  It’s hard to understand why they’re complaining.

According to Businessweek, the EPA does this up to 3,000 times per year.

The Sacketts got some help from the Pacific Legal Foundation, and their case has finally arrived at the Supreme Court, four years after they started laying the foundation of their new home.  Of course, the Obama Administration opposes them, as the New York Times reports:

The Obama administration stated in its brief that appeals courts have “uniformly concluded” that the Clean Water Act provisions in question do not violate the due process clause because EPA must file suit in federal court if it wants to enforce compliance.

Righto!  The EPA can drop a compliance order on anyone it wants, whenever it pleases; wait as long as it wants, accruing fines at the rate of over thirty thousand dollars a day; and then bring its victims into court to play some really high-stakes poker.  Or you could just walk away from your piddly little $23,000 plot of land without a fight, pony up $27,000 to make it look nice for the EPA, and build your dream house someplace else.  That’s “due process,” just like the Founding Fathers intended!

Businessweek notes that “some environmental advocates believe the agency made a mistake in letting a case with such appealing plaintiffs reach the Supreme Court.”  So property rights and the due process of law should be reserved for “appealing” people who tug heartstrings when they file high-profile court cases?

The EPA as we know it needs to be torn down root and branch.  Maybe a court decision in the Sackett’s favor can help get that vitally needed landscaping project under way.

Update: The Pacific Legal Foundation has produced a video about the Sackett case.  It helps to see them.  These are real people, not statistics to be tallied up on the EPA’s next request for a budget increase.