The Environmental Spectator
Moisturizing the EPA
The Supreme Court has a golden opportunity to restore property rights in the Sackett “wetlands” case.
Property rights advocates had reason to be optimistic this week, as the Supreme Court heard arguments in Sackett v. U.S. Environmental Protection Agency. At stake is landowners’ right to challenge bureaucratic control of their lands without redress or any meaningful right to appeal. The Justices seemed receptive to arguments on behalf of the plaintiffs, Mike and Chantell Sackett. A ruling in their favor would help restore some of the property rights protections that have been eroded over the past century.
The Sacketts had purchased a small lot in Priest Lake, Idaho, to build their home. The lot was in a residential area and they obtained all the necessary permits, graded the lot, and dumped gravel for the foundation. Then the U.S. Environmental Protection Agency (EPA) suddenly declared their lot a federally protected wetland under the Clean Water Act, and told the Sacketts they must restore it to pristine condition or face a fine of $37,500 per day.
They were told they could not appeal until they had
exhausted all administrative remedies. Therefore, they must
restore the land at considerable cost and then appeal for a permit,
a process which could take years and cost tens of thousands of
dollars — and likely result in a denial of their appeal. Only
then would they be able to go to court — by which time they might
be facing bankruptcy.
The Sackett case provides the Court an opportunity to
revive the orphan child of the Bill of Rights — the Fifth
Amendment, specifically due process and the takings
clause. For much of the past century, various advocates of big
government have run roughshod over property rights. Green
activists have consistently used environmental legislation not to
protect the environment but rather to impose land-use control at no
cost to the government. For property owners, the costs can be
staggering — complete loss of the use of their
property.
From the day the Clean Water Act was passed, giving the federal government the authority to protect navigable waters, the bureaucrats at EPA and the Army Corps of Engineers have stretched the definition of navigable water beyond all rational bounds to include almost any surface that is ever wet — no matter how seldom, for how short a time, or to what degree or depth. As one attorney has put it, the government is now trying to regulate the “moistures of the United States.”
Rather than work to reduce fill and pollution in the nation’s genuine navigable waters, agency regulators have spent ever-increasing amounts of time harassing small landowners, functionally “taking” their lands by preventing their use, entangling them in costly permit battles that often stretch out over several years, and even imprisoning some of them.
Consider the case of Gaston Roberge, a retiree in Old Orchard Beach, Maine. He owned a commercial lot where he had allowed the town to dump clean fill. Attempting to sell the lot for his retirement, the Army Corps charged him with illegally filling a wetland. After six years and tens of thousands of dollars in legal fees fighting to get a permit, it turned out he didn’t need the permit after all, as his lot was finally designated as not a wetland. He then sued for a temporary taking of his property. During the proceedings, a Corps memo was discovered, saying, “Roberge would be a good one to squash and set an example.”
That is how the Clean Water Act is being used — to set an example in order to prevent citizens from using their own land. The EPA may well be trying to set another example at Priest Lake to slow development. Mike Sackett is in the construction business — who better to make an example of?
At Monday’s hearing, the Sacketts’ attorney seemed to make a strong argument. Most of the justices seemed somewhat angered by the government’s actions, some strongly so. Justice Alito asked: “[D]on’t you think most ordinary homeowners would say this kind of thing can’t happen in the United States?” Justice Scalia said, “It shows the high-handedness of the agency.” Even Justices Sotomayor and Breyer appeared irritated at times.
Rather than wasting taxpayer money to regulate farmers’ stock ponds, the federal government should concentrate on the original goals of the Clean Water Act. Those who believe in a free society and a healthy environment can only hope for a wise decision from the Court — one that will protect landowners’ rights to challenge arbitrary agency designations of dry land as navigable waters. Perhaps we are on the verge of seeing a return to the protection of people’s inalienable rights, as the Constitution was intended to do.
About the Author
Robert J. Smith is a Distinguished Fellow at the Center for Energy and Environment at the Competitive Enterprise Institute.
Letter to the Editor View all comments (37) | Leave a comment
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Bill Hussein O'Stalin| 1.13.12 @ 6:10AM
The EPA should be shut down. Fire 17,000 elitists and create 10,000,000 jobs within 3 years. That statement "squash Roberge" shows the mindset of the lunatics who work with the EPA guidance.
PaulyD| 1.13.12 @ 9:36AM
Although the EPA standards for what consitutes wetlands is arbitrary and often ridiculous, don't hold out too much hope the Sackett's will win their case.
What has been left out of this article is the Sackett's did NOT get ALL the necessary permits and that they were warned before building, by various inspectors, that they had wetlands on their property. If the facts were to show the Sackett's were completely ignorant of the nature of their property (not the law - that's never an excuse) and that the EPA had acted entirely after the fact, then their case would be a lot stronger. The law may be ridiculous, but it's still the law and if the Sackett's built in knowing defiance of it, the Court will not have much sympathy for them.
TrueBlue | 1.13.12 @ 11:21AM
I'm sorry, but unless the water was used to transport things by boat it does not qualify as "navigable waters" and it is privaty property. The idea that the government can tell anybody what to do with their land, so long as what they are doing does not endanger anyone, is BULL.
The term "navigable waters" of the United States means "navigable waters" as defined in section 502(7) of the FWPCA, and includes: (1) all navigable waters of the United States, as defined in judicial decisions prior to the passage of the 1972 Amendments of the Federal Water Pollution Control Act, (FWPCA) (Pub. L. 92-500) also known as the Clean Water Act (CWA), and tributaries of such waters as; (2) interstate waters; (3) intrastate lakes, rivers, and streams which are utilized by interstate travelers for recreational or other purposes; and (4) intrastate lakes, rivers, and streams from which fish or shellfish are taken and sold in interstate commerce.
PaulyD| 1.13.12 @ 1:08PM
And I certainly hope your line of reasoning prevails.
Unfortunately, I've lost faith in most of the Supreme Court Justices' ability to reason.
Stormy| 1.13.12 @ 11:30AM
The problem is not the law, it's how radical activist bureaucrats twist and interpret the law to their socialistic agenda. Clean water and clear air are noble goals for our country, but how the EPA is using this weapon is not noble. Whether or not the Sacketts got all of the permits required by EPA, the issue is that EPA is making the process impossible for property owners to realize the use of their own property, as they desire. The EPA permit process is THE problem.
Capitalism is an economic system in which private individuals, rather than governments, own property and businesses. The EPA, as well as the entire Obama administration, is trying to change our economic system to one where the state dictates or controls the use of private property. In short, it is threatening the very heart of our economic freedom, the use of our own property.
Socialism is a system of social organization that advocates the vesting of the ownership and "control" of the means of production and distribution, of capital, land, etc., in the community as a whole.
Private use and control of private property or community collective use and control of property? Socialism (in Leninist theory) is a transitional stage after the proletarian revolution in the development of a society from capitalism to communism. It begins with the proletarian government revolution taking control of your private property.
Dick Nome| 1.13.12 @ 6:17AM
EPA is a rogue agency that needs to be eliminated. It's purpose is not environmental protection, it is regulation. It will will use the environment as an excuse to regulate whatever the hell its bueaucrats wan to to and screw whoever gets in its way. EPA needs to be squashed as an example, not the citizens.
L. Ross| 1.13.12 @ 7:08AM
Sadly, the EPA demonstrates what happens when people have good intentions. Also, a perfect example of what happens in government, and liberalism. You attain a goal, and then you set the bar higher. The present state is never acceptable.
Appleby| 1.13.12 @ 7:20AM
When ignorant people have "good intentions" and give the baby a really big hammer...long past time for the adults to take the country back. If there are any adults out there.
TrueBlue | 1.13.12 @ 11:23AM
The road to hell is paved with good intentions.
oldfart| 1.13.12 @ 7:11AM
In times of heavy rain, parts of my property do, for a short period of time (less than 1/2 a day) have standing water because the ground cannot absorb more moisture and/or it cannot run off fast enough to the nearest creek which is about 300 yards away. I am at the top of a hill - does that make my property a wet land?
The problem with regulation is way the laws are written. They are somewhat vague on purpose because it is impossible to impose a line of law for every circumstance.
Therefore, Congress depends on the intelligence and proper public service attitude of the various agencies. And don't forget Congress likes to duck and bob to avoid many serious problems, so they kick the can down the road and hope they can retire before it comes up again.
Many in the halls of the various agencies do have a good public service attitude but as Administrations change the laws can and are twisted far beyond the original intent.
Most career employees want to do what is right, but you get a new boss with an 'agenda' you must do their bidding or get assigned to BF Egypt.
“No Man's life liberty or property is safe while the legislature is in session”. Long attributed to Mark Twain and various other nationally prominent humorists,
The simple solution is to elect people to congress that will eliminate the exclusion clause. You know, the one where congress exempts itself from the laws it passes. The elimination of that clause will be a damn good start.
Stormzeye| 1.13.12 @ 8:17AM
Wetlands are usually defined by what plant materials grow on them. I guess only certain plants can survive on truly wet land (like Cat-o-Nine Tails and Loose Strife). They are specifically enumerated in regulations and when they're found in certain areas that area is defined as wetland. This is a rational approach to defining wetlands however when you put lunatics in charge who have a political, anti-capitalist, anti-landowner mindset, tyranny can result in the form of back-breaking litigation which only a government with unlimited resources can win.
This madness began when "Conservationists" were replaced by "Environmentalists"......They put the MENTAL in ENVIRONMENTAL.
Kingofthenet| 1.13.12 @ 11:24AM
and the Birds that live there, Ducks, Cranes, basically Marshlands.
oldfart| 1.13.12 @ 1:04PM
The problem with the plant test is that after Hurricane/Tropical Storm Agnes most East Coast states began a program (well deserved) of creating storm water collection ponds with controlled drainage. This rightfully controlled the flow of water to prevent all of the storm water from hitting existing creeks, streams and rivers at one time.
A by-product of these collection ponds is that migratory birds have left behind, in their feces, seeds to wet lands plants that are doing very well, thank-you, in areas that now have year round standing water. Cat tails and such are now common in the most unusual places, including hill tops that have NEVER previously had standing water. By Federal law, these are now wet lands and subject to Federal Regulation.
As one poster has stated this land is State or County owned, so the Feds look the other way.
If I did that on my property, that was developed over a quarter century ago, I might have to tear down my home.
No joke.
Kingofthenet| 1.13.12 @ 2:33PM
That's interesting, never thought of that, definitely that shouldn't qualify as 'wetlands'. My only problem is this, Rich Greedy Republicans try and game the system.They buy deed restricted properties say either bordering protected areas or even in NYC in Rent Control Buildings, for cheap, than WHINE they can't do what they want to the property, well DUH the REASON they are cheap is they aren't as flexible as other properties, it has been priced in...
Anthony| 1.13.12 @ 1:44PM
"MENTAL IN ENVIORNMENT': I like it!!!
I do a fair amount of land use litigation, as well as applications to P&Z Commissions, ZBA appeals, and Wetlands. I can assure readers that these regulations are increasingly onerous and restrictive of one's use of their private property.
oldfart| 1.14.12 @ 6:00AM
These places now have standing water 24/7. What is interesting is that it now appears that State maintenance workers are cutting the cat tails. OPPS - there is an eco copy when you need one.
Indy| 1.13.12 @ 7:23AM
Smackdown would be welcomed but I predict the ruling will be 5-4, time will tell.
Timothy L. Pennell| 1.13.12 @ 10:29AM
Wetlands are in the eye of the Beholder. Being a Landscaper, I am keen to my surroundings, outdoors.
I know, for a FACT, that Governments - Federal, State, and Local - look the other way, on the whole Wetland thingy, if it suits their interests.
I have seen Shopping Malls go up on a Wetlands. I have seen Houses go up, in Developments, in Wetlands. The Town of Ridgefield, Ct. built their YMCA/Parks Dept. Building, on a piece of property, that is the Picture one sees, in the Dictionary, next to the Definition, when one is looking up the Definition of Wetlands.
Calling Anthony. I need backup. It's on Rt 35, right across from Fox Hill. (ALSO, built on top of a Wetlands)
That being said.
These very same Governments who will stop at nothing, to prevent you from using YOUR LAND, as YOU SEE FIT, charge you Property Tax on that very same land, that they have, for all intensive purposes, CONFISCATED.
The Epitaph that will be written on America's Tombstone, will be this:
It Was FUN, While It Lasted.
R.I.P.
Anthony| 1.13.12 @ 1:34PM
Tim my man, always ready to help a buddy. I'll attempt a reconnoiter this weekend and report back. I don't travel that way much anymore.
However, to back up your other point, remember it was a Connecticut case in New London, CT, the Kelo case, that allowed the City to confiscate private property for a higher tax use.
Here's a little know fact not reported by the Media, as a follow up to Kelo; the property was confiscated, which was upheld by the Supreme Court 5/4, but the planned private development never went through.
Your omniscient government at work!!
My buddy is my landscaper, but he's a real enviro-nazi, move back to CT, we'll have some wild times.
Timothy L. Pennell| 1.13.12 @ 3:16PM
I AM in Connecticut.
Mike Hawk| 1.15.12 @ 6:05PM
Yep, those properties in photos I saw are now vacant rubble strewn lots being overgrown by brush and weeds.
George S| 1.13.12 @ 8:20AM
Sure, the EPA must be stopped (the human body is 90% water which is navigable to microbes) but how? In order for SCOTUS to overturn the CWA with the fifth amendment, it has to declare the guts of the CWA unconstitutional. Forty years later?
But what they can do is enforce Due Process. Any land to be taken under the fifth must be given due process prior to taking and compensation afterwards. To me, a capricious act by bureaucrats is not due process; what should happen is that every act of taking by the EPA go before a judge PRIOR to notifying the landowner. Maybe the due process angle will give us a SCOTUS decision that third party standing in environmental law suits is unconstitutional.
The Sacketts were probably turned in be enviro mental case activists. They say corporations should be denied "personhood" but the Environment is like a person in need of protection from people. Much like a fetus. Ironic on so many levels.
TrueBlue | 1.13.12 @ 11:26AM
Thankfully there is no statue of limitations on determining when a law is unconstitutional. It merely takes a set of judges with the guts to actually do their job regardless of the political ramifications.
whitehunter| 1.14.12 @ 11:22AM
In addition to the Fifth Amendment, how about the Eighth: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Can any sane and honest person (which, by definition, excludes the Stalinist commissars who run the EPA) claim with a straight face that a fine of $37,500 per day is not excessive?
Brian Mc| 1.13.12 @ 8:55AM
Environmental damage to wetlands? The EPA need look no further than USACE's activities in its feeble attempts to maintain a nine foot channel on the Mississippi River. When they've addressed this issue, only then can they have the moral right to turn on the Sacketts.
russel| 1.13.12 @ 10:30AM
The feds have been trying to gain control of ALL water for some time . Here in the West , it's worth a lot more than oil . Pardon the brain freeze , but zero has set up a council or commission having to do with rural issues , not unlike his czars and the EPA , which are not accountable to anyone or anything . Now I don't know what the socialist intention may be , other than control of food . Our property rights are in serious jeopardy already . But if they control the water , they have us by the short hairs .
Leveut| 1.13.12 @ 5:19PM
"people's inalienable rights"
All rights are alienable. You only have those rights the government allows you to have. If you vote in representatives who pass laws to take away those rights and who confirm judges to affirm those laws, you have alienated your rights.
cicero| 1.13.12 @ 6:07PM
My pratice does not involve enviro law, but I believe that a wetland is defined as a peice of land that has standing water on for a period of time exceeding 26 continuous days in any year. (Anthony, maybe you can get the statutory definition on this one.) Just thinking, though. It took the Romans a couple of hundred years to figure out how to drain the swamps around Rome so that the place was liveable. We, on the other hand, are hell bent on preserving mosquito breeding grounds for no other purpose than to satisfy th egoes of so called environmentalists. Are we completely crazy?
Richard Baker| 1.13.12 @ 8:42PM
Reading a book about Robert Moses by Robert Caro and the manipulation and abuse of eminent domain has been a long term problem. Moses was an arrogant tyrant whose idea was that the land belonged, it seems by my reading, for the government's chosen use and who cares about the property owners. This abuse has to stop otherwise individual property rights will continue to be violated for whatever reason comes to the whim of government. As an example, the Kelo case is one that comes to mind. Sic Semper Tyrannis.
Leveut:
So Mr. Jefferson was wrong about unalienable rights, then?
POST American| 1.13.12 @ 9:22PM
---Speaking of 'enviornmental issues',
WHEN are we going to get even as first
article ---or even first mention of:
-the 12 years of relentless CHEM-trailing
with Aluminum/ Barium and Cadmium oxides?
-microwave saturation of the atmosphere
and its effects on DNA
-the saturation of our enviornment of
plastics and bisphenol A ---and their proven
link to sterility and cancer
-the stealth saturation of the world
food chain with organ destroying,
cancer causing, intergenerational
sterilant ---GMO foods from the deadly
sinister Monsanto corporation (among others)
---------------------ANYTIME you're ready
to break capstone ranks kiddies.
-------------------------------------ANYTIME!
Larry| 1.14.12 @ 5:31AM
I welcome the developments reported by Robert Smith, and hope that SCOTUS will do the legal and proper thing by reversing this action by EPA.
For years, and by stealth, EPA has been trying to regulate and control land use in this country, under the guise of "protecting the environment." Except that EPA (and that other paragon of incompetence, the Department of the Interior and its demon division, the U.S. Fish and Wildlife Service) has been pandering to radical environmentalists for years, and they have also wanted to control land use for their own purposes around the country.
This situation must stop. EPA must, if a Republican president is elected, be reformed, downsized, and given a new, more-restricted mission. In the meantime, let us hope that SCOTUS ends this particular practice.
Mike Hawk| 1.15.12 @ 5:58PM
EPA needs to be eliminated. It is a rogue agency not subject to 'reform'.
oldfart| 1.14.12 @ 6:18AM
I remember reading a report about a Western rancher who was a good steward of his land. (I may get some of the details a little off because this was about 50 years ago I saw this report - but the basic facts are accurate.)
This rancher wanted to mitigate the erosion problem he had every year from the spring rains. He noticed a 'choke' point in one drainage area that looked suitable for an some sort of dam that would control and retain the spring rains. While scouting the area he also noticed that 'upstream' there were some funny shaped rocks that turned out to be ancient native american fishing weights. Obviously there had, at one time, been a natural dam there that had eroded away.
After doing some research on proper earthen dam construction, over a couple of years, had some help from some neighbors, he was able to build a proper dam with appropriate spill ways etc. Keep in mind this was no Hoover Dam construction but a low earthen dam, perhaps 20 feet high.
Come the next spring a small lake formed behind the dam and became a year round source of water – something significant in the West. Over a few years birds came back, left seeds, plants began to grow and he was able to introduce species of fish appropriate to the area. Local flora and fauna was restored and the land became more usable to humans and wildlife.
He did this by doing some basic research.
What do you think EPA and state/local bureaucrats would do to this person today? LOL
Chris| 1.15.12 @ 10:38AM
Lock His A$$ Up!
Unless of Coarse He was an Indian overseen by the "Interior Department".
But as Chief Red Cloud said;
"They made us many Promises, more than I can Remember. But they kept but one-They Promised to take our land.... and they took it"
Now substitute Obama for Chief Red Cloud, and Freedom intead of "land" and that is exactly where we're at today, until the bullets disclose the truth. Because Bullets Don't lie when it comes to Amerian's FREEDOM!
cicero| 1.14.12 @ 12:06PM
Our fearless leaders are trying to restore the country, its citizens, and their land to a mythical period of time that either did not exist, or at a point in time did, when life was "solitary, cruel, nasty, brutish, and short". Boy o boy, lets all buy into that.
Chris| 1.15.12 @ 10:23AM
[E]nough [P]ropagana [A]ready, as they undermine Liberty every step of the way, for that, of whatever they choose to be above the success of the American People and America as a whole.
ALL of these Administative Agencies were created to deny the Citizenery their "Due Proccess Rights". Period!
Even the courts "Defer" to their so-called "Expertice" in the field they oversee, so the public has to jump through Hoops to get Justice, like in this Case.
That is because of one reason and one reason only.
THE COURTS ARE THE ONE'S WHO ARE LAZY! Obama.
They [The Judges] don't even want to read the filed legal briefs in the meritorous cases which come before them, let alone "Administrative" anything. It's beneath them. I say lets put a Bill on the table that would Sunset them all as they did with the former Interstate Commerce Commission [ICC].
One bill listing them all at the same time. EPA, Dept. Of Ed, Dept. of Energy, NLRB, DOL and a few more as they come to the forefront against Liberty. Privatize the Post Office too.
Timely Renewed | 1.16.12 @ 6:49PM
The problem goes much deeper than an out-of-control EPA, and the solution must go deeper than simply replacing the current administrators. This imperious disregard of the Constitution is only one manifestation of a national government which has expanded far beyond its original constitutional bounds. We can only hope to be permanently free of such bureaucratic overreach when we restore the original limits on the national government which have been stripped away by Supreme Court decisions since 1937. Even if the Supreme Court rules in favor of the Sacketts in this one case, the Supreme Court jurisprudence allowing the unlimited growth of federal power is deeply entrenched. The only sure recourse is constitutional amendments restating the original constitutional limits on federal power. See http://www.timelyrenewed.com.