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.
