An Idaho couple facing $37,500 per day in Environmental Protection Agency fines for building on what the agency says is a “wetland” had their day in court — the Supreme Court — on Jan. 9. And the tough questions leveled at the EPA’s attorney by nearly all the justices do not bode well for the federal government’s case.
Attorney Damien Schiff, who presented the oral arguments, told The Daily Caller that the justices showed clear “suspicion of the legal arguments that the EPA was making.”
Schiff works for the Pacific Legal Foundation, which is representing the couple.
In 2005 Mike and Chantell Sackett paid $23,000 for a small piece of land on Priest Lake in Idaho. The vacant lot was zoned for residential construction, and they planned to build a modest home there.
But construction was halted shortly after it began. After they filled in their lot with rocks and gravel in order to grade it, EPA officials arrived on the property and declared that it was a protected wetlands area.
The government ordered the Sacketts to restore the land by removing the gravel, and then apply for a wetlands permit before beginning to build again. That process could take years and typically costs thousands of dollars, but the EPA said they would incur a fine of $37,500 for every day they failed to comply. The gravel-removal estimate alone was more than the couple paid for the property.
The Sacketts dispute that their home site is a protected wetland, but finding a court willing to consider that possibility was a tall order. Federal courts, including the Ninth Circuit in San Francisco, have ruled not only that the Sacketts must comply with the EPA’s orders, but that they may not challenge the government agency in court at all.
The Supreme Court is expected to rule this summer on the EPA’s apparent immunity from the judicial system. Schiff told The Daily Caller that a victory would guarantee citizens the right to sue the EPA in court as soon as the agency issues an unfair order. (RELATED: Full coverage of the Supreme Court)
Mike Sackett and his attorney were both pleasantly surprised by the line of questioning the government had to face from several Supreme Court justices on Jan. 9.
“I was certainly pleased,” Schiff told TheDC. “During several points during the EPA attorney’s presentation, he was interrupted by very searching and suspicious questions from the justices.”
The EPA was represented by Malcolm Stewart, the Justice Department’s deputy solicitor general.
“Don’t you think most ordinary homeowners would say this kind of thing can’t happen in the United States?” Justice Samuel Alito asked Stewart during oral arguments.
“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.
Alito was also critical of the government’s contention that “there is no way you can go to court to challenge [EPA’s] determination that this is a wetland until such time as we choose to sue you.”
Justice Stephen Breyer implied that the EPA was thumbing its nose at 75 years of judicial precedent, during which “the courts have interpreted statutes with an eye towards permitting judicial review, not the opposite.”
Mike Sackett said while the outcome is not final until the Supreme Court issues a ruling, he’s optimistic. “The questioning of the EPA was definitely not what I was expecting from members of the Supreme Court,” he told TheDC. “It was quite obvious that they were not happy with the EPA or how we’ve been treated.”
Sackett said there were many questions he had been eager to ask the EPA, but never had the opportunity. “I didn’t expect the justices to ask those questions,” he exclaimed. “Eight out of the nine justices were asking questions [of the EPA attorney]. It was amazing, especially since we’re the ones who have been going through this nightmare with the EPA for almost five years.”
The Sacketts’ home-building plans are still on hold.