January 9, 2012

“Idaho Couple Challenges Power of EPA to Say They Can’t Build Home on Their Own Land”

I know what you’re all thinking: The headline-as-performative for both the tenuousness of liberty and the natural desire of a power-hungry central authority to use any and every instrumentality of government to expand its size, reach, and control, that one is. And you’d be right. So good going. CNS:

In 2005, Michael and Chantell Sackett were working toward what many American families work toward, their own home on their own land, until the U.S. Environmental Protection Agency (EPA) halted their plans by declaring it a “wetland.”

On Monday, Jan. 9, the Sacketts and their attorneys will ask the justices of the U.S. Supreme Court to not only restore the right to use their own land – but to break the absolute power the EPA has over protected wetlands.

The Sacketts, small business owners in Idaho, located a lot in the northern part of the state in a town called Priest Lake. According to court documents, the lot is less than an acre and is just 500 feet from Priest Lake on its west side. It is separated from the lake by a house and a road and has no standing water or any hydrologic connection to Lake Priest or any other body of water.

There are houses to the north and south of the lot.

The lot is located in an established residential area – a platted subdivision – with the required water and sewer hookups.

In 2005, after performing the necessary due diligence, the Sacketts purchased the lot for $23,000. They sought and obtained the needed permits to begin building their new home.

According to the Sacketts, shortly after they began laying gravel for construction, the EPA came onto the property and issued a compliance order without any notice, telling them that the land had been declared a “wetland,” and ordered them to restore the land to EPA’s liking or face $37,500 per day in fines.

The Pacific Legal Foundation, a nonprofit public interest law firm representing the Sacketts, says the couple asked the EPA numerous times for a written statement describing what they had done that was in violation of EPA regulations. Finally, after seven months, the Sacketts received a letter detailing the violation that the EPA claims they committed.They say they were unable to locate their property on the EPA’s online wetland inventory.

Following the EPA “compliance” order, the Sacketts hired a private engineer who, following an inspection of the property, provided a report stating that the property is not wetlands.The EPA did not relent.

And really, why would they? Most people simply cannot afford to take on the government in court, the whole enterprise being either cost-prohibitive or financially unsound under a dispassionate cost-benefit analysis; and besides, you’re fighting what is essentially the final authority, because in a post-constitutional nation of the kind we now inhabit (the courts have ruled the EPA has jurisdiction over human exhalation, which is the ultimate form of control, I’d argue — and is a power clearly not gleaned from a Constitution the judiciary has now routinely re-imagined to justify governmental power grabs), going to the courts to get a ruling against the government is a crapshoot at best, and a sucker’s bet at worst.

And therein lies the problem: the only way to beat back an ever-expanding administrative state is to ask elected officials to do away with entrenched bureaucratic actors; and politicians being who they are, the last thing they have the will to fight is a perception that they’re aligned against, eg., education, or clean air, or safe foods, etc. (Interestingly, this notion dovetails with the ideas about fighting the usurpation of language discussed in my previous post).

And so we’re forced to find candidates with the political will — only to be reminded that such candidates aren’t electable, and that we really need to work within the system to manage it effectively and efficiently, and perhaps at time try to slow its expansion.

So it’s left to the courts:

“Should EPA be a law unto itself, without having to answer to the courts and the Constitution?” Pacific Legal senior staff attorney Damien M. Schiff asked. “We believe the answer is, clearly, no.”

But according to the Justice Department’s filings in the case, once the EPA has designated a piece of property as being protected “wetlands,” the Clean Water Act requires that a wetland permit be obtained before a “new use” of the wetland is allowed.

Because the order “imposed no new legal obligations beyond those to which petitioners were already subject under the (Clean Water Act),” the Justice Department argues that the order “is not subject to immediate pre-enforcement review” because the law already provides for “adequate procedural safeguards and review.”

Which is really just a fancy way of saying submit.

— As well as a find objective correlative for a post-constitutional nation’s “fundamental transformation” into a soft tyranny controlled by an administrative state unreachable by voters.

Posted by Jeff G. @ 11:29am
60 comments | Trackback

Comments (60)

  1. Here’s another problem with capricious bureaucratic enforcement. I’d bet you dollars to donuts that this started when one of the existing homeowners made a phone call to a pal or a pal of a pal.

  2. Slight bending of the intent of what I’m excerpting, but…

    the order “imposed no new legal obligations beyond those to which petitioners were already subject under the (Clean Water Act),” the Justice Department argues

    I can only conclude that’s based on the idea that the CWA, already being law before the order was issued, had already imposed legal obligations — and that the order merely served notice that said obligations would, in this case, be enforced.

    The thing to watch for is EPA arguing that just because that road and all those other houses were allowed to be built without these legal obligations being enforced, doesn’t mean Elmer Fed can’t come along and enforce them on the Sacketts.

    Then again, the EPA might want to consult some Louis L’Amour books before taking on somebody with that name. Just sayin’…

  3. Ernst

    I was thinking the exact same thing. The use of the government bureaucracy to pick winners or losers.

    Small truckers are trying to sue the EPA over it’s rules that will, essentially, put them out of business.

    Unsurprisingly, the big fleet truck owners are on the EPA’s side.

    The Environmental Protection Agency is ordering large trucks and buses to reduce greenhouse gas emissions by up to 20 percent and overhaul engine design starting with models built in 2014. Most operators will need to spend thousands upgrading their rigs or buying new vehicles, with prices starting at $50,000 and going up from there, depending on the model.

    Even so, the regulations have the support of the large and powerful American Trucking Association.

    [...]

    The EPA argues it posted all relevant information on its website, providing access for scientific and peer review. But critics say that’s not good enough, and contend the new greenhouse gas rules are less about clean air, and more about the big trucking fleets pushing smaller operators out of the way.

    “This is using the government as a bully pulpit to put me out of business so they can take over and get more market share,” says McClernon.

  4. The Tunisian vegetable vendor set himself on fire. Then things happened.

  5. Their authoritarian progressivism—at odds with the democratic, pluralistic traditions within liberalism—tends to evoke science, however contested, to justify its authority. The progressives themselves are, in Daniel Bell’s telling phrase, “the priests of the machine.” Their views are fairly uniform and can be seen in “progressive legal theory,” which displaces the seeming plain meaning of the Constitution with constructions derived from the perceived needs of a changing political environment. Belief in affirmative action, environmental justice, health-care reform, and redistribution from the middle class to the poor all find foundation there. More important still is a radical environmental agenda fervently committed to the idea that climate change has a human origin—a kind of secular notion of original sin. But these ideas are not widely shared by most people. The clerisy may see in Obama “reason incarnate,” as George Packer of The New Yorker put it, but the majority of the population remains more concerned about long-term unemployment and a struggling economy than about rising sea levels or the need to maintain racial quotas.

    link

  6. Because the order “imposed no new legal obligations beyond those to which petitioners were already subject under the (Clean Water Act),” the Justice Department argues that the order “is not subject to immediate pre-enforcement review” because the law already provides for “adequate procedural safeguards and review.

    Obviously not. That whole petitioning the government for redress of grievances thing is just so 18th century, isn’t it?

  7. The Tunisian vegetable vendor set himself on fire. Then things happened.

    One would hope the Sacketts were clever enough to set the bureaucrats on fire, and not themselves.

    What I’d really like to see, and what seems like a scenario that we could actually achieve in the near term, is for the Governor to step in and say “This family has all the permits required by this state, and we are encouraging them to build their home. Our Department of Natural Resources has reviewed the application, and finds nothing to object to. This state does not recognize the EPA’s role in this matter, and will neither acknowledge nor enforce any legal action brought by that agency. We encourage the President to rein in his out-of-control agents, to assure that the citizens of our state are never again harassed in such a manner by unaccountable bureaucrats in Washington, and to clear this matter up immediately.”

    Then he’d lower the drinking age, raise the speed limit, and redefine “federal” gas taxes as “taxes collected by the State that go toward maintaining formerly Federal highways.” ‘Cuz if starting Constitutional crises is the new fashion, I don’t see why the White House, or the Beltway in general, should have all the fun.

  8. This is relevant. Seems to beg the question though:

    When government is responsible for 40% of a nation’s spending, government will necessarily involve itself in 40% of its countrymen’s decisions.

    Or is it: When government will involve itself in 40% of its countrymen’s decisions, government will be responsible for 40% of a nation’s spending.

  9. What — just out of curiosity — do Idahoans call that northern rectangular neck of their State, measuring roughly 44 mi. wide by 70 mi. long? Me, I’d call it the back-of-beyond, but God only knows the nation’s water quality must depend on it.

  10. Because the order “imposed no new legal obligations beyond those to which petitioners were already subject under the (Clean Water Act),” the Justice Department argues that the order “is not subject to immediate pre-enforcement review” because the law already provides for “adequate procedural safeguards and review.”

    Yet:

    [The Sacketts] say they were unable to locate their property on the EPA’s online wetland inventory.

    So apparently those “adequate procedural safeguards” don’t include things like actually informing the public where all the wetlands are at, or how and why some places end up on the list and others don’t.

  11. do Idahoans call that northern rectangular neck of their State,

    The Panhandle.

    Yup.

  12. “adequate procedural safeguards”

    Landowner: “This is not a wetland. It’s surrounded by development, it’s not on any list of protected parcels, and moreover, it isn’t wet! Where do you come off telling me I can’t build on my own property?”

    EPA: “I’m sorry, sir, but our adequate procedural safeguards say that you have to prove the land isn’t protected. Our standard adequate safeguard procedure should take no more than 4 years and $400,000 to satisfy.”

  13. EPA: “I’m sorry, sir, but our adequate procedural safeguards say that you have to prove the land isn’t protected.

    No, no. More like this:

    EPA: “Shut up and do as you’re told.”

  14. Yet:

    [The Sacketts] say they were unable to locate their property on the EPA’s online wetland inventory.

    So apparently those “adequate procedural safeguards” don’t include things like actually informing the public where all the wetlands are at, or how and why some places end up on the list and others don’t.

    Apparently, it was “on display” at the bottom of a filing cabinet in a disused lavatory with a sign on the door saying, “Beware Of The Leopard”.

    Doug Adams, another one who died too young. Too many of those recently.

  15. No doubt an executive lavoratory; and the leopard ate the key, along with the rest of the executive, years ago.

  16. Here’s another ridiculously blatant example of the value of a taking by a bureaucracy. There are people here in San Clemente who own property on the beach, zoned for mobile homes. Zoned by the California Coastal Commision as single story mobile homes only, even though they back to a railroad track, then Pacific Coast Highway, then a bluff, so they in no way can block anyone’s view.

    Take a look at the Zillow price estimate for the houses in that sub-division, you might have to switch to a five year timeline. The value of the houses, like everyone else’s in San Clemente, were on a steady decline from 2007 on. The in December 2009, somebody went Galt, and just built a two story home on their property. If you scroll the Zillow map North along PCH, it is the last house in the sub-division. The house values jumped from $600K up to $2M in one month, and stayed that way for two years. Others in the sub-division began to build, replacing their mobile homes with two-story homes. The houses stayed around those high values until February 2011, when the Coastal Commision ordered the homeowners to demolish the new buildings. The prices plummeted back below their original values, to around $500K.

    The houses stand, some in mid-construction, some unoccupied, while the battle works it’s way through the courts. The California Coastal Commission has taken 3/4 of the value of those home-owner’s property. For the CCC, that’s a small price (for you) to pay, to save the…., well, nothing really, except the authority of the CCC.

  17. This part bothers me.

    In 2005, after performing the necessary due diligence, the Sacketts purchased the lot for $23,000. They sought and obtained the needed permits to begin building their new home.

    Any new building permits would require a survey showing placement of the house as well as the boundaries of any set backs buffers or government easements.

    Whomever issued the permits, is considered the issuing authority for any Clean Water compliance and the town or county, if needed would get a variance from the state. I rarely have heard of the EPA getting involved in a new build unless they were called in by the issuing authority or the next step up in the food chain.

    Most Clean Water Act violations in situations like this normally concern improperly placed silt fences and even then the local code compliance authority would issue the stop work order.

  18. You’d think the local authorities would love to have that kind of tax base to use for their own nefarious purposes.

    More and more, I’m thinking that the only way we’re going to win is by setting these bastards up to fight one another. A huge battle royale between the Feds, the States, the Cities, the Counties, the Schools, the various bullshit Authorities and Districts and whatnot. Get ‘em all in a humongous brawl, and let ‘em spend the next ten years ripping each other to shreds while the rest of us go on about our lives.

    (Tell the lawyers that it’s a ‘loser pays’ scenario. Then stiff whomever’s left standing.)

  19. Their Federal Family is really looking out for them, I’d say.

  20. The way I see it the EPA’s beef is with the issuing authority and not the property owners.

  21. Having seen some evidence that the Sackett’s aren’t pure as the driven snow, I dug into the lawsuit a bit further. Apart from the particulars of this situation, there’s a larger procedural point. Currently, EPA can issue a compliance order that requires the landowner to return a parcel to its previous condition, or face daily fines in the five-figure range.

    But the courts have held that a landowner has no legal standing unless and until the EPA actually enforces the compliance order. Which means that most people cave right away, since they don’t want to risk an unsuccessful appeal that could cost them million of dollars in accumulated penalties.

    Reading that, I find that I don’t really care if the Sacketts were dumping nuclear waste on the site — no agency should be able to leave a $30,000/day fine hanging over your head and then tell you there’s no appeal or recourse until they get around to enforcement actions. To my thinking, the mere act of attaching such a “potential” penalty to a property is actionable in itself, and I hope SCOTUS tells EPA that they’ll have to do their homework up front from now on.

  22. My only experience with wetlands is that if you and your neighbors like the wetland sediment-filled drain tile abutting your property, you’d better pool your resources and buy the land from the developer before he unclogs the drain.

  23. Only everso slightly apart from the topic: Michael Ledeen – You Cannot Reform a Totalitarian

  24. You know what’s kind of counter to what makes up wetlands? 40-odd feet (or more) of fall in less than 500 feet of sideways distance. Tough for water to hang on to land long enough to form anything like a wetland under those conditions.

    Which is not to say that you can’t have wetlands in a mountainous region, just not on the side of a mountain.

    A lake isn’t a wetland because of the wetness. A marsh, now, that’s a wetland.

  25. JUSTICE ALITO: Mr. Stewart, if you related the facts of this case as they come to us to an ordinary homeowner, don’t you think most ordinary homeowners would say this kind of thing can’t happen in the United States? You don’t — you buy property to build a house. You think maybe there is a little drainage problem in part of your lot, so you start to build the house and then you get an order from the EPA which says: You have filled in wetlands, so you can’t build your house; remove the fill, put in all kinds of plants; and now you have to let us on your premises whenever we want to. You have to turn over to us all sorts of documents, and for every day that you don’t do all this you are accumulating a potential fine of $75,000. And by the way, there is no way you can go to court to challenge our determination that this is a wetlands until such time as we choose to sue you.

    link

  26. link for @ 26

  27. OT: I’ve been sick for almost a week and spend all night coughing. I have only been able to put in half my normal work hours so far. I’m abandoning all threads but this one, and only to keep track of where I am so I know where the new material will be tomorrow. I think I had some points, but my temper is past being frayed.

    I hope everyone else is doing better. Stay well.

  28. cranky-d

    sounds like the creeping crud that ran through my family (and me) the last couple of weeks.

    I still feel like I’ve been beat all over with the ugly stick.

    Get healthy, be well.

  29. I read something somewhere today that stated the free market has been killed in favor of crony capitalism. This is just another log on that fire.

  30. Throw another log on the fire, and tell me why you’re leaving meeeee.

  31. The lyrics to that song remain seared, seared into my memory. I remember singing it as entertainment to a group of Brits at a campfire there 18 years ago.

  32. In bizarro world, where there’s a press: Democrat party schism between radicals and liberals; Daley refuses Obama’s request to stay on after unconstitutional appointments. Here? Ho hum.

  33. cranky-d, GO TO THE DOCTOR TOMORROW! You sound like you have bronchitis. Do you have a barking cough? Or a wet cough? My mother had a similar kind of cold a few years back and it turned out to be pneumonia; 3 days in the hospital.

  34. That would be “crony socialism”, I think.

  35. Fee simple versus eminent domain. When do private property rights become subservient to the public weal? Don’t know, but I claim private rights to the air I breathe and go from there.

  36. More and more, I’m thinking that the only way we’re going to win is by setting these bastards up to fight one another as targets for public shaming, shunning and other actions starting with sh.

    FTFY. Put up the names and addresses of these bastards and give them the Senator Cornhusker Kickback treatment where they can’t be seen in public without finding out the rest of us think they’re slime.

    There are not enough cops in Creation to protect these people once someone goes Robin Hood on their asses.

  37. “I’d bet you dollars to donuts that this started when one of the existing homeowners made a phone call to a pal or a pal of a pal.”

    I’d bet the septic contractor had to call someone to check before he dug. I live in the ass crack of nowhere, but when I wanted to move my existing fence I found out that my yard has more underground utilities than midtown Manhattan. All that spraypaint did the ozone hole no good; on the other hand, a picture of the yard from the roof made me $300 as an imitation Bansky.

  38. Next up: the EPA orders bears to stop crapping in the woodswetlands.

  39. We’ve got wetlands on our property. Wetlands are determined not by “water” but by whatever plant life you’ve got. So, if something gets wet and the plants migrate – VIOLA you’ve got wetlands.

  40. SDN, I was going with the idea of setting the criminal gangs against one another, whittling down their numbers and resources until they were weakened enough that we could do a simple mop-up. Frankly, the idea of naming and shaming every one of the mofos exhausts me just thinking about it.

  41. SCOTUS not pleased with EPA arguments.

    Apparently, however, Schiff had gotten the attention of the Justices on the issue of the double penalty, and that prompted Deputy Solicitor General Malcolm Stewart, as he began his response, to concede the possibility of double penalties. He said it had been put in the EPA brief “as an exercise of our duty of candor to the Court.” He said it was “theoretical,” not “practical.” When Justice Stephen G. Breyer noted that the compliance order issued to the Sacketts had mentioned only $37,500, not double that, Stewart said that was all that the order needed to say.

    Soon, Chief Justice John G. Roberts, Jr., said he was confused, asking whether there were double penalties? Stewart said it was a legal possibility, but he knew of no case in which it had been done. The Justices, though, were now fully engaged on the double penalties, and other members of the Court pressed Stewart on it. Justice Alito, for example, got an admission from Stewart that the government had not adopted a policy to rule it out. “So,” said Alito, “‘it’s more than theoretical.” And when the government lawyer continued to say double fining had not been done, Justice Scalia remarked sarcastically, “I’m not going to bet my house on that.”

    When Stewart tried to defend himself by saying that the Sacketts had not even been aware of the double penalty prospect before reading the government’s brief, Justice Anthony M. Kennedy offered his own sarcastic thrust: “They were getting a good night’s sleep before they read your brief?” The audience laughed.
    [...]
    But the circumstances actually deteriorated further for EPA and its lawyer. As Stewart answered other questions about how EPA’s compliance orders actually work, his responses sometimes simply produced more sarcasm. Scalia, for example, said “Well, that’s very nice” when Stewart said the Sacketts had been advised that they could tell EPA if they thought some of its demands were “infeasible.” Scalia continued: “That’s very nice, when you have received something called a compliance order, which says you are subject to penalties of 32.5 for every day of violations.” ($32,500 was the former maximum penalty per day; it is now $37,500, as other comments during the argument made clear.)

    Scalia warmed to the subject, suggesting flatly that the agency had been “high-handed,” demanding things of the Sacketts that simply were not required by the law.

    It was Justice Alito, though, who completed Stewart’s embarrassment, with the devastating critique that began this way: “Mr. Stewart, if you related the facts of this case as they come to us to an ordinary homeowner, don’t you think most ordinary homeowners would say this kind of thing can’t happen in the United States?”

  42. Great comment, geoffb

  43. It’s pretty fucking idiotic, all right. This is not some pristine wetland they’re wanting to build on, it’s an already-graded site, upslope of a bunch of (for this area) tightly packed homes.

    EPA has well and truly foot-shot itself with this case.

    I personally don’t have any problem with clean air and water regulations; it’s the huge power that can and does get abused in enforcing them that I object to.

  44. You can see it yourself if you care to. Just go to maps.google.com and type in in the search window: 48°34’13.40″N 116°55’12.21″W

    That’s probably too much precision; it was an easy cut-and-paste from my Google Earth placemark.

  45. geoffb,

    High-handed, Justice Scalia suggests? Arbitrary and capricious, I believe, is a better description.

    Of course, that IS the EPA in a nutshell.

  46. You know, there’s nothing soft about tyranny. We use this phrase because the progressives are not, so far, rounding us up into camps or taking us into the basement to load nine grams of lead into our skulls.

    This is one of the seriously evil legacies of twentieth century socialists: so long as they are not doing those things, any other communist depredations upon our lives and treasure will be reported as OK with the intellectuals. We unhelpful ones should submit without caviling.

    Then again, George III wasn’t doing those things either, yet the founders found the Crown’s and Parliament’s policies to be unacceptably tyrannical. I’m glad they didn’t qualify their opposition.

  47. Squid, reread that comment and reflect that “shooting” also begins with sh.

  48. You know, there’s nothing soft about tyranny. We use this phrase because the progressives are not, so far, rounding us up into camps or taking us into the basement to load nine grams of lead into our skulls.

    Well, we use it also because Alexis de Tocqueville referred to it as one potential end of democracy in America. But yes, there’s nothing very velvety about tyranny.

  49. “Well, we use it also because Alexis de Tocqueville referred to it as one potential end of democracy in America.”

    I take your point. Though I don’t find the particular phrase in Tocqueville, the democratic-legislative-judicial paralysis of individual liberty described by him (Book IV, chapter 6, where “softened” could easily be translated by “enervated”) is precisely what the phrase intends to convey.

    His phrase “the tyranny of the majority” is the one that resonates with me.

  50. Tyranny of the majority in all its forms — I’ve dealt with it on an epistemic level with respect to language and meaning — is one of the greatest dangers to individual liberty. Which is why it’s a favorite of collectivists.

  51. I love America. But I’m not doing it any favors by every four years teaching the GOP that it can stuff a big government technocrat down my throat.

    Not surprisingly, they seem to be taking such a thing for granted — and in fact, they’re becoming more insistent upon their right to do so.

    If not us, who?

  52. Just a note on De Tocqueville: the Online Library of Liberty has posted his great work The Ancient Regime and The Revolution in English translation.

  53. Bk IV ch 6 (Mansfield/Winthrop trans.):

    Thus, after taking each individual by turns in its powerful hands and kneading him as it like, the sovereign extends its arms over society as a whole; it covers its surface in a network of small, complicated, painstaking, uniform rules through which the most original minds and the most vigorous sould cannot clear a way to surpass the crowd; it does not break wills, but softens them, bends them, and directs them; it rarely forces one to act, but it constantly opposes itself to one’s acting; it does not destroy, it prevents things from being born; it does not tyrannize, it hinders, compromises enervates, extinguishes, dazes, and finally reduces each nation to being nothing more than a herd of timid and industrious animals of which the government is shepherd.

    In case anyone didn’t know what Brett was talking about.

  54. Behold the wisdom of our EPA betters:

    A Fine for Not Using a Biofuel That Doesn’t Exist

    When the companies that supply motor fuel close the books on 2011, they will pay about $6.8 million in penalties to the Treasury because they failed to mix a special type of biofuel into their gasoline and diesel as required by law.

    But there was none to be had. Outside a handful of laboratories and workshops, the ingredient, cellulosic biofuel, does not exist.

    In 2012, the oil companies expect to pay even higher penalties for failing to blend in the fuel, which is made from wood chips or the inedible parts of plants like corncobs. Refiners were required to blend 6.6 million gallons into gasoline and diesel in 2011 and face a quota of 8.65 million gallons this year.

    “It belies logic,” Charles T. Drevna, the president of the National Petrochemicals and Refiners Association, said of the 2011 quota. And raising the quota for 2012 when there is no production makes even less sense, he said.
    [...]
    Mr. McGinn of the council on renewable energy, defends the overall energy statute. Even if the standards for 2011 and 2012 are not met, he said, “I am absolutely convinced from a national security perspective and an economic perspective that the renewable fuel standard, writ large, is the right thing to do.” With oil insecurity and climate change related to greenhouse gas emissions as worrisome as ever, advocates say, there is strong reason to press forward.

    The oil industry does not agree.

  55. Re #55

    This is a perfect example of the technologically-illiterate legislators, bureaucrats and environmental types’ preferred method for achieving their Gaia-worshipping Utopia:

    “Hey, if we impose some fines, then industry will HAVE to invent it”

    Or put more simply:

    “The beatings will continue until you give us the technology we want”

  56. The government can also mandate 100 mpg cars, and they will just happen. Wouldn’t that be cool?

  57. Yo.

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