Thirteen Years and Counting: Idaho Case Illustrates How Regulatory Enforcement Can Go Awry

In 2007, Mike and Chantell Sackett broke ground on a lot near scenic Priest Lake, Idaho, where they planned to build their dream home. It had taken years even to get to that point, and they were excited about the three-bedroom house that would soon replace empty land.

Thirteen years later, they’re still waiting on their dream home. Because, since 2007, the Sacketts have been the targets of arbitrary and abusive prosecution by the Environmental Protection Agency (EPA), and their project remains in limbo. Their story illustrates why it’s so important to protect the rights of private property owners against government bureaucrats and fight against regulatory overreach.

The difficulties began almost as soon as they started clearing the lot, which they had bought two years before for $23,000. EPA officials stepped in and claimed the Sacketts’ land was on a federally protected wetland, and their construction project violated the Clean Water Act. The EPA forced a halt to the work and issued a compliance order, prohibiting further construction and threatening fines of up to $75,000 per day if they failed to comply.

Let that sink in: A single day’s fines could be more than three times what the Sacketts had paid for the land.

It’s worth noting that the Sacketts’ property wasn’t some untouched piece of wilderness—the lot is located in a mostly developed subdivision, with roads and other homes nearby and water and sewer hook-ups on site. Moreover, their land doesn’t drain to any other body of water, which makes the alleged Clean Water Act violation all the more baffling.

When the Sacketts attempted to contest the EPA’s ruling, it was as if they had passed through the bureaucratic looking glass: There seemed to be no rules and nothing made sense. They requested a written explanation for why the EPA had claimed authority over their land, which the agency promised but never delivered. The EPA provided them no proof of a violation and no opportunity to contest its claims of a violation.

The Sacketts did everything they could to reason with the EPA, eventually even hiring outside experts to conduct a hydrologic analysis of the property. But it was like Alice reasoning with the Red Queen, and since the EPA claimed the compliance order was not reviewable in court, the couple couldn’t even get a third party to fairly adjudicate the question of agency authority.

Unfortunately for the EPA, their behavior violated their Sacketts’ constitutional right to due process—and so, represented by the Pacific Legal Foundation, the Sacketts fought back to get their case heard in court.

In 2012, the Sacketts’ case went before the Supreme Court, and they won. The Supreme Court unanimously ruled that property owners can promptly challenge EPA claims that their lands are federally regulated wetlands and therefore may not be developed. (In a separate concurrence, Justice Samuel Alito cited a major portion of an amicus brief filed by CEI, berating the EPA for the vagueness of its wetlands definition.)

However, that was eight years ago, and the Sacketts are still waiting. The Supreme Court decision only won them the right to present their case in the lower courts, where the case has languished ever since. In March, the Sacketts did receive some good news when the EPA withdrew its 12-year-old compliance order and, for now, removed the threat of fines. However, their case continues to wait for its ultimate resolution as their appeal in the Ninth Circuit Court of Appeals remains pending.

Meanwhile, the construction on their dream home still has not begun. We know that vague statutes, lack of oversight for regulators, and concentrated power in Washington leads to abuse. It is wrong. In this case, procedural abuses by the EPA effectively invalidate the property rights of the Sacketts. Secure property rights are a foundation of a free society.

Steven D. Anderson is president of the Pacific Legal Foundation and Kent Lassman is president of the Competitive Enterprise Institute.