Mar 22 2012

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SCOTUS Wins One for the Little Guy

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Neutering the Dog....

In 2005, Michael and Chantell Sackett mapped out their version of the American Dream. In that year, the couple bought a small property in an Idaho residential neighborhood near Priest Lake, making plans to build a house on the land.

In 2007, three days after they brought in fill-dirt and prepared for construction, and without any advance warning, officials from the EPA and the US Army Corps of Engineers order the activity stopped, claiming that the Sackett’s property contained “wetlands,” ostensibly because the property was near a lake.

There is no water on the property.

Months later, the EPA sent the Sacketts a compliance order that stated that their property must be “restored” as wetlands before the couple could apply for a permit to build their house.  Failure to comply with the order would trigger fines of $75,000 a day.

As Justice Samuel Alito asked during oral argument, “If you related these facts…to an ordinary homeowner, don’t you think most homeowners would say that this kind of thing can’t happen in the United States?”

The answer would clearly be “no.”

Understandably bewildered by the EPA’s actions and its punitive fines, the Sackett’s sought to appeal the suspect wetlands designation.

But EPA refused to grant a review or look-back hearing because an appeals process isn’t explicitly required in the Clean Water Act – the statute that governed the government’s de facto land grab in this case. Only after the EPA sought to enforce the compliance order would the Sacketts get a day in court.

But according to the Wall Street Journal, “The EPA almost never needs to enforce… because disobeying a compliance order – even one that is later overturned – is legal proof in its mind of “willfulness” or a tacit admission of guilt. The only way to defend yourself is to break the law and therefore invite even higher penalties.”

Braving the bankrupting fines that were accumulating, the Sacketts decided to go to court anyway, claiming that the EPA’s actions violated their rights to due process.

Yesterday, the Supreme’s agreed. Under the High Court’s decision, the Sacketts can now challenge the compliance order in court under the Administrative Procedures Act.

But as the Journal pointed out, “…the High Court’s narrow ruling does not provide greater relief to the thousands who are tortured by the EPA’s expansive interpretation of the Clean Water Act. That law was meant to prevent pollution in ‘navigable waters.’ It says nothing about wetlands. But the EPA created that writ through rule-making and last May the Obama EPA issued new regulations that expand this discretion even further.”

In a concurring opinion yesterday, Justice Alito accurately stated that uncertain reach of the Clean Water Act, coupled with the “draconian” penalties imposed for the sort of violations put forth in the Sackett’s case, leaves property owners nationwide with little alternative but to succumb to EPA diktats.

In ruling in favor of the Sacketts, the Supreme’s spoke for the millions of law-abiding Americans who must cope with the regulatory tyranny of the EPA, an agency with thousands of agents and billions of dollars in annual taxpayer funded appropriations.

As for the Sacketts, we can only hope that a sane court will rule in their favor, fining EPA their brazen and contemptible behavior.



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