The Sackett Saga

 

It’s hard not to feel for Mike and Chantell Sackett, the Idaho couple who in 2007 saw their plans for a dream home on a remote Idaho lake kiboshed by the U.S. Environmental Protection Agency. Last week, when their case against the agency became the first case of 2012 to go before the U.S. Supreme Court, their lawyer, Damien Schiff, told a story of shock and deprivation, one designed to terrify independent dream-home builders nationwide. “They have been injured by the EPA,” he argued. The agency’s “arbitrary and capricious” decision making has “turned their world upside down.”

But Sackett v. EPA might also terrify another segment of the population: Those people whose livelihoods depend on tourists who come to National Forests to fish, relax or otherwise enjoy untreated clean water and landscapes untrammeled by unsupervised development; people concerned about the country’s water supply and our collective power to protect it. Because as the case plays out in the news, the agency and its staff appear increasingly distanced from the people whose natural resources they're charged with protecting. The Sackett saga does not make the EPA look good.

As the story goes, people in the Sacketts’ employ were happily dredging away on their new lot one afternoon when three officials from the EPA turned up and told them to stop. The workers were, said the agency’s representatives that day, destroying a wetland protected by federal law.  The EPA then slapped the Sacketts with a “compliance order” threatening up to $75,000 per day in fines — $37,500 for disobeying the EPA’s orders to halt construction, and the same sum again for violating Section 404 of the Clean Water Act, the part that says you can’t fill in wetlands without a permit.

The Sacketts lost the $23,000 they invested in their land and their plans were crushed. Worse, they couldn’t even challenge the EPA in court, because a mere compliance order, however threatening, isn’t subject to that kind of thing, even though the threat of fines is real. Apparently you can only challenge the EPA before a judge when they’re about to throw you in jail.

That narrow issue — that the Sacketts have been deprived of their Constitutional due-process rights — is the issue over which the Sacketts decided to sue, and their lawyers at the Pacific Legal Foundation, who live to dismantle environmental laws, have taken it up joyously. Never mind that defending such orders in court — EPA issues thousands of them every year — would leave the EPA's staff no time for enforcement. Schiff’s passionate arguments in the hearing portrayed the Sacketts as a helpless couple trapped in a no-man’s land between the permit-granting U.S. Army Corps of Engineers and the police-like EPA, uncertain whether their little two-thirds of an acre in paradise contains wetlands and what the term “wetland” even means.

The EPA’s lawyer on the other hand, Malcolm Stewart, plunges the court into a thicket of legalese from which little useful information emerges unscathed. “We believe that the following steps are necessary in order to achieve perspective compliance with the act, and if you don't do these things you will be subject to the following penalties because you will then be in violation of the act and you will be subject to the penalties,” Stewart argued, to which Chief Justice John Roberts appropriately replied,  “I didn’t follow that.”

 One fact, however, comes through loud clear: No one has a clue anymore what the Clean Water Act means — maybe not even the EPA itself, despite its ongoing efforts to craft a rule to clarify it. And even if the nine justices uphold two lower court opinions and throw the case out, the EPA’s staff will still come out looking like the bullies Chantell Sackett says they are — or worse, as Idaho Senator Jim Risch recently phrased it, the “Gestapo.” 

I’ll be honest here. I’ve invested many hours in contemplating the Sacketts’ case — watching them testify at Kentucky Senator Rand Paul’s Property Rights Forum last October; listening to them hobnob with commiserating right-wing radio host Peter Schiff  — and I’m inclined not to put much stock in what they say. The Sacketts run an excavation and construction business near the lake; and it's no secret in the construction industry that you can't cavalierly fill a lake-adjacent lot with rocks and sand. They’re backed by giant industrial polluters like General Electric. And neither Mike nor Chantell seem to care much about the beauty and balance of the forest they were so keen to inhabit: When Schiff asked Chantell whether there was any wildlife on the property, she mused that “maybe once in a while a deer runs through.”

But in fact Priest Lake is in the pristine Kaniksu National Forest, which stretches across three states; the local tourism board touts it as home to “black and grizzly bears, whitetail and mule deer, moose, elk, wolves, a small herd of mountain caribou, mountain lions, bobcats, mountain sheep and a few mountain goats.” The lake, fed by undisturbed mountain streams, has been designated critical habitat for the threatened bull trout.

Even the owners of the local golf course, four miles down the shoreline from the Sackett lot, brag about their property’s most unique feature: wetlands. Whatever the fallout from the U.S. Supreme Court's 2006 ruling on Rapanos v. United States, the case of the scofflaw Michigan developer that threw the term “waters of the U.S.” into limbo, protecting Priest Lake for everyone who depends on it falls solidly within the EPA’s mandate. That means restraining developers of all sizes who might allow foreign dirt to slide off their carelessly designed property. That’s why we demand that people get permits — so someone of authority knows what they’re doing, and makes sure they’re doing it right.

But unless someone at the EPA, or in the Obama administration, steps up to tell that side of the story, these kinds of little-guy-faces-down-the-feds scenarios will continue to queer the discussion over how best to protect our water, air and wilderness. They will bolster the efforts of anti-EPA legislators such as Senators John Barrasso (R.-Wyo.) and Dean Heller (R.-Nev.), who in November tried to push through a budget-bill rider to stop the EPA from defining what waters the Clean Water Act protects. Sackett v. EPA could have been a teachable experience, starting with the moment the three officials showed up at the Sacketts’ lot, responding to the complaint of a sensitized local resident. Instead, it’s another reminder that the federal agencies Congress created to protect our environment have a bigger problem communicating with the public than they'd like to admit.

Judith Lewis Mernit is a contributing editor at High Country News.

Rusty Austin
Rusty Austin Subscriber
Jan 16, 2012 03:20 PM
The Sacketts knew damn well you can't just go ahead and build on a lake without the proper permits, ESPECIALLY a lake like Priest Lake, and they knew damn well the EPA or some other government agency might try and stop them, and they went ahead with their plan. Screw 'em.
Andrew Sipocz
Andrew Sipocz Subscriber
Jan 18, 2012 07:14 PM
You stated: "Apparently you can only challenge the EPA before a judge when they’re about to throw you in jail."

The throw you in jail part was an exaggeration, but yes, this is no different from a traffic ticket, an OSHA safety violation, violation of a building code, violation of a food safety code, violation of a property owner's association restriction, etc. etc. where the violator is subject to fines starting on the date the violation is noticed and the violater is given notice. An enforcement agent can't wait until a court date to ask someone doing harm to stop. Think about it. "Hey, I'm going to drill for oil in my front yard today. Maybe I'll stop if a judge tells me so when my court date comes up in 6 months. Or maybe not. There's always a chance to appeal." Or perhaps, "I'm going to keep requiring my workers to weld pipe joints stark naked until a judge makes me stop."
Judith Lewis Mernit
Judith Lewis Mernit Subscriber
Jan 23, 2012 12:58 PM
@Rusty - I think you're right, but most people who read about this case aren't seeing it that way — even people inclined to be sympathetic to the EPA.

@Andrew — I get your basic premise. and Stewart did ask the court to look at it that way. (You can, however, challenge a traffic ticket in court; I'm not sure about all of your other examples, though I imagine some of them apply.) The court took issue with the wording of the compliance order, arguing that it should be more of a warning rather than a notice of impending fines, and maybe that's right. I don't know. I do know that the EPA's staff is not communicating its mission effectively, and these sorts of threatening letters with vague consequences aren't helping. Even the court's more liberal justices (Sotomayor and Kagan, in particular) seemed to be sympathetic to the Sacketts. And that means something in the EPA's communication and enforcement mechanism isn't functioning as it should. Thanks for the comments.

Judith Mernit
HCN Contributing Editor
Emily Chadwick
Emily Chadwick
Feb 07, 2012 10:42 AM
I thought this piece was really well written.
Kenny Custer
Kenny Custer
Feb 11, 2012 04:03 PM
Could someone enlighten me on what the deputy solicitor general was implying by the phrase "perspective compliance?" As I understand it laws have specific meaning tempered only by the "letter of the law", the "spirit of the law" and the background and published "interpretions" of the law. Use of the term "perspective" only underscores the "capricious" characterization many hold of the EPA. I would assume that if even Justice Roberts could not "... follow ..." compliance becomes nearly impossible.