Dream home turns into EPA nightmare

By Leisa Boley-Hellwarth, attorney in Mercer County

It was a beautiful March Sunday afternoon, with record high temperatures, a light breeze and sunshine. I had just sat down at my farm office computer, when I happened to glance out the window and looked again, before it registered. Holstein heifers were galloping down the driveway! Not one or two, but what appeared to be a barn full, all of breeding age. Maybe it was their idea of a spring fling. They were kicking their heels and racing around.  The rodeo began.

It was a little like the Supreme Court, some ran right and some ran left. So we started with the ones in the middle and gradually herded them all back into the heifer barn.

That same month, the Supreme Court Justices all headed in the same direction. They reached a unanimous decision in “Sackett v. Environmental Protection Agency” and sided with landowners who challenged an Environmental Protection Agency (EPA) compliance order.

It all started in 2005, when Chantell and Michael Sackett began preparations to build their dream home, in Bonner County, Idaho, just north of Priest Lake. They bought a parcel of less than an acre, intending to build a three-bedroom house. The lot the Sacketts purchased is located in a residential area, and other houses had been constructed between their land and Priest Lake. They obtained a county permit and trucked in dirt and gravel fill.

A few months later, the EPA determined that the Sacketts’ property contained “wetlands” and ordered that they stop and restore their lot to its original conditions. The EPA cited the Clean Water Act, specifically stating that the dirt and rock they used to fill their property would flow into Priest Lake in violation of the Clean Water Act’s prohibition on the discharge of any pollutant by any person without a permit into navigable waters. (This language is all too familiar because the Clean Water Act is what ultimately regulates farmers and manure application).

The Sacketts sought a hearing with the EPA, but were denied one. So, the Sacketts filed suit because they did not believe their property contained wetlands and was subject to the Clean Water Act. The lower courts all told the Sacketts that they had no right to a hearing and refused the Sacketts an opportunity to fight the order, until the EPA itself chose to bring an action. Meanwhile, the Sacketts were potentially subject to civil penalties of up to $75,000 per day of non-compliance!

Cases like this were well-described by the late Professor Morgan Shipman when he warned his classes that “birds and bunnies law was trampling all over the U.S. Constitution.”

On March 21, 2012, the Supreme Court unanimously reversed the lower court. Justice Antonin Scalia, writing on behalf of the entire Court, ruled that the Sacketts had a right to sue the government at an early stage and allowed the Sackett’s suit to proceed.

“There is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review — even review of the question whether the regulated party is within the EPA’s jurisdiction.”

In a noteworthy concurring opinion, Justice Samuel A. Alito, Jr. faulted Congress and the EPA to fix the “notoriously unclear” scope of the Clean Water Act. “Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the act, and according to the Federal Government, if property owners begin to construct a home on a lot that the agency thinks possess the requisite wetness, the property owners are at the agency’s mercy. Allowing aggrieved property owners to sue under the Administrative Procedure Act is better than nothing, but only clarification of the reach of the Clean Water Act can rectify the underlying problem.”

Seven years after beginning to build their dream home, the Sacketts finally have the right to sue the government. And they may still need it, because the ultimate issue of whether their land contains a wetlands is still not answered. The EPA said it was reviewing the decision.

This case is clearly a victory for landowners, as the Court sided with individual freedoms over governmental authority. But it does not mean that the Sacketts, or anyone else now able to push back against EPA compliance orders will ultimately prevail in their lawsuits. In her concurring opinion, Justice Ruth Bader Ginsburg said “the question remains open for another day and case.”

Let’s hope and pray that the EPA opts to let the Sacketts build their dream home without another seven years of litigation.

 

Leisa Boley Hellwarth is a dairy farmer and an attorney. She represents farmers throughout Ohio from her office near Celina. Her office number is 419-586-1072. 

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