Pity the Sacketts? Not much
by Judith Lewis Mernit
It's hard not to feel for Mike and Chantell Sackett, the Idaho couple who saw their plans for a dream home on a remote Idaho lake kiboshed by the EPA in 2007. In early January, when their case against the federal agency went 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 the Sacketts aren't the only ones whose dreams are at stake here. Sackett v. Environmental Protection Agency should also worry another set of Westerners: People whose livelihoods depend on tourists who come to their national forests to fish, relax or otherwise enjoy clean water and public land that is still untrammeled by development. Because as the case plays out in the courts and the news, EPA officials seem increasingly distanced from the people whose natural resources they're charged with protecting.
Even if the nine justices uphold two lower court opinions and throw the Sacketts' case out, the agency and its staff will probably still look like the bullies Chantell Sackett says they are -- or worse, as Idaho Republican Sen. Jim Risch diplomatically puts it -- the "Gestapo."
According to the Sacketts, people in their employ were dredging away on the new lot, 500 feet from the shore of Priest Lake, when three EPA representatives turned up and ordered them to stop: The workers, they said, were destroying a wetland protected by federal law. The EPA then sent the Sacketts a "compliance order" threatening up to $75,000 per day in fines.
The Sacketts lost the $23,000 they invested in their land and their plans were crushed. Worse, they couldn't dispute the wetland designation in court, because a mere compliance order, however threatening, isn't open to such challenges. For that, you have to wait until the feds are about to throw you in jail.
So the Sacketts, with free help from the Pacific Legal Foundation, sued the EPA not over whether their land contains wetlands, but over their due-process right to plead their case before a judge. Attorney Schiff, whose firm lives to dismantle environmental law in the name of property rights, effectively 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 bullying EPA, confused and misled about what the term "wetland" even means.
The EPA's lawyer, on the other hand, plunged the court into such a thicket of legalese that little useful information emerged 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," U.S. Deputy Solicitor General Malcolm Stewart argued.
To which Chief Justice John Roberts appropriately replied, "I didn't follow that."
But the Sacketts don't really deserve the sympathy they're getting. A timeline Chantell Sackett created for the Army Corps of Engineers reveals that she and her husband knew early on that they were building on a wetland. The Sacketts run an excavation and construction business; the law should not have been a mystery to them. Even the local golf course brags about its stunning wetlands.
Nor did the EPA officials show up at the Sackett lot unbidden; they were responding to a complaint from a local resident. Some area residents are battling against a 14-lot subdivision planned for the north end of Priest Lake, which is also a refuge for threatened bull trout in the Kaniksu National Forest.
That forest also supports both black and grizzly bears, along with wolves, elk and caribou. Those creatures might be mere trivialities to the Sacketts, who in an interview with a sneering right-wing radio host shrugged that they see no wildlife save the occasional desultory deer. But many of their fellow residents, including some humans, feel differently. And they have property rights, too.
Those rights are hardly helped, however, by the EPA's clumsy communication and apparent institutional hostility to the press -- or to any kind of good storytelling, even before the nation's highest court.
Forty years ago, Congress wrote the Clean Water Act with the clear understanding that individuals alone can't protect the clean lakes and streams upon which they depend. Enforcing that law certainly includes restraining developers big and small who might carelessly pollute our waterways. But unless someone in the Obama administration steps up to tell that story -- to explain that the EPA is in fact an agent of the people, acting on our behalf -- these kinds of little-guy-faces-down-the-feds scenarios will continue to dominate the discussion over how best to protect our water, air and wilderness. The forces that want to eliminate those protections altogether will prevail. And we'll all lose.
Judith Mernit Lewis is a contributor to Writers on the Range, a service of High Country News (hcn.org). She is a contributing editor for High Country News and lives in Venice, California.© High Country News