THEY’RE NOT DONATING MONTHLY!
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Posted on 01/02/2012 5:27:12 PM PST by WilliamIII
PRIEST LAKE, Idaho — Chantell and Mike Sackett’s dream house, if it is ever built, will have to be situated just so in order to minimize the view of neighboring homes and maximize the vista of pristine water and conifer-covered mountain.
But their roughly half-acre lot in the Idaho Panhandle has proved to be the perfect staging ground for a conservative uproar over the powers of the Environmental Protection Agency.
This month, the Supreme Court will review the Sacketts’s four-year-long effort to build on land that the EPA says contains environmentally sensitive wetlands. A decision in the couple’s favor could curtail the EPA’s authority and mean a fundamental change in the way the agency enforces the Clean Water Act.
Even before the court takes up the case, the couple has become a favored cause for developers, corporations, utilities, libertarians and conservative members of Congress, who condemn what one ally told the court is the EPA’s “abominable bureaucratic abuse.”
It is a familiar spot for the agency, which has come under withering criticism in the political arena. Republican presidential contenders routinely denounce the EPA’s actions and regulations as “job-killers,” while GOP House members have voted to ban the agency from regulating greenhouse gases and tried to cut its enforcement budget.
The Pacific Legal Foundation, which represents the Sacketts, features their saga on its Web site under the headline “Taking a Bully to the Supreme Court.”
(Excerpt) Read more at washingtonpost.com ...
Sacketts? Hmmm, I wonder if they are aquainted with Louie La’mour’s westerns, may he RIP?
We can get rid of the EPA but that’s not going to help us one bit. They will just get rolled into Interior or some other agency.
What needs to be done is change the Endangered Species, Clean Water, Clean Air, and other enviro legislation to reflect accurate science and a fair balance of business and enviro interests and focus on conservation.
I hope they don’t look at my new wetland back yard! This year we got 65 inches of rain compared to and average of around 37 inches.
If the EPA thinks there are wetlands on a property, they need to decide. No maybees.
Anway, like unions, the EPA is now part of the problem.
I hope they don’t look at my new wetland back yard! This year we got 65 inches of rain compared to and average of around 37 inches.
If the EPA thinks there are wetlands on a property, they need to decide. No maybees.
Anway, like unions, the EPA is now part of the problem.
Here’s looking for the demise of the entire EPA, both act and agency, and a Mexican privatized prison for the employees.
These Federal dictators think they can spit in the dirt and declare it a protected wetland. They have no standard other than pandering to any individual or group opposed to development on any particular piece of land.
Ex Post Facto means nothing to them and they make it up as they go along.
“Double-Secret Probation” is the standard for this administration.
In New Jersey we have major, major problems with flooding that is caused by overdevelopment and filling in of wetlands.
Local corruption --i.e. land developers in bed with local pols and planning boards-- is what got us into this terrible situation. Land that should never have been developed, because of the threat development posed to existing neighborhoods, got paved over and covered with McMansionvilles and strip malls.
Sometimes the only weapon we have against this (I say "we" because I am anti-corruption local official) is the EPA or the state DEP.
I don't claim to know exactly what is going on in this case in Idaho, but I remember from previous articles that this couple illegally filled in the lot. We see that kind of behavior in NJ all the time. I am not sympathetic.
What if you had a existing house next door, that all of a sudden began to flood because of this couple's flouting the rules?
Have you seen a photograph of the property in question?
It is a lot that is indistinguishable from the lots on all sides of it. If you had, you would be sympathetic.
And you would be happy to just sit by and bide your time, watch your house flood, see all your belongings destroyed, and then pay a liar lawyer to take ten years of your life and your life's savings while you sue the developer?
You mean a photo of the lot before or after they filled it in?
We need to overturn Wickard v Filburn, and stop Congress from creating bureaucracies to regulate anything they can "find" to have a "substantial effect on interstate commerce". Read Clarence Thomas' writing wrt the Commerce Clause. He gets it.
If we need the federal government to regulate things they weren't granted the power to regulate by the original intent of the Constitution, we can do that by amendment - that's what it's there for. What we have now is an open-ended grant of power with no discernible limits, and they have proven over and over again that they cannot be trusted to exercise that power within the bounds of common sense or common decency.
So far, all the lower courts that have reviewed the claim agree with the government that the agency’s compliance orders are not subject to judicial review. The agency’s orders are not final, the courts have agreed; it must prove a violation of the Clean Water Act to a judge, and it is up to the courts to levy fines.
Not going to disagree with you there.
If we're talking in theory and the couple's illegal filling of their property caused continual flooding of yours, you would have on ongoing problem. Each time there was enough rain you would suffer flooding and a have another cause of action. Awarding monetary damages each time isn't what a civil court would do.
One alternative to treat it like a taking of your land - forcing the couple who illegally filled in their land to buy yours because they've rendered it unfit for its purpose due to the repeated flooding. But that's not fair. You were there first and obeyed the rules. Why should they have the right to break the law and force you to either endure repeated flooding or move?
The other and appropriate alternative is to cause them to remedy the situation that's causing the repeated flooding. Remove the illegal fill. Restore their property to the point that it's not causing flooding on the property of another.
Because repeated civil suits is something the system will tolerate, and you shouldn't have to sue each time there's a flood. And allowing the party that caused the flooding situation to remedy it by buying out the flooding land isn't the just remedy.
Making them return their land to the condition it was in before they took their illegal acts, and before they caused repeated floods on adjoining land, is the appropriate remedy.
Torts of that kind are long and well established. You cannot harm your neighbor’s property. The EPA is redundant when you have a functioning justice system.
If Wickard is undone then we don’t need much more. We hold the Congress for 40 years and let the courts do the rest.
That's the linchpin. Pull that, and the wheels fall off the regulatory bandwagon.
The photo I saw was of a relatively flat, grass-covered lot with a few trees. It looked undeveloped to me and any fill would've been of modest proportions simply to level the lot.
There was no resemblance to an undrained "wetland".
....................Making them return their land to the condition it was in before they took their illegal acts, and before they caused repeated floods on adjoining land, is the appropriate remedy......................
The lot was perked; the lot was paid for as deemed buildable based on the developers plat plan and his infrastructure build out; the town approved the lot development plans, and approved the individual housing plan.
So now tell me why the new lot owners should suffer the consequences of buying a buildable lot, that suddenly the EPA says is inferior???
PLF reference bump! ;-)
The first part of my comment was:
"If we're talking in theory and the couple's illegal filling of their property caused continual flooding of yours ...
I thought I had clearly commented on a theoretical ("If we're talking in theory") situation involving a theoretical couple that had, in fact, illegally filled in their property ("and the couple's illegal filling"). The earlier quotes made it clear that one party to whom I was responded thought the property had illegally filled their property, but I didn't even respond to that supposition about this particular pice of property.
A couple could engage in illegal filling after approval of a development plan or housing plan, but I didn't speculate on that, because I was talking in theory about Everyman's Lot on Everyman's Property, next to Illegally Acting Neighbor's Lot on Illegally Acting Neighbor's Property. We could research riparian law in Idaho after approval of development and housing plans, and whether appropriate studies were done, and whether favorable treatment was given, and whether the adjoining neighbor was given adequate notice of any problems appearing in the plans, and whether any earlier drafts of plans were revised.
But that's a different post.
I meant to talk in theory about all such tracts without any reference to plans. That's what I wrote about. I stand by my comments.
I appreciate you adding some details. I'd say that questions about notice, revision of earlier drafts, pressure on government officials, and other issues may be relevant if the case rests on the approval of lot development and housing plans. Collusion among developers, councilmen, development departments, building inspectors, and others to the detriment of honest citizens is not unheard of. In theory.
NOTE: The preceding post is not a blanket, towel, hand towel, washcloth, handkerchief, or wet wipe approval of the EPA's often ridiculous actions.
EPA another present from a republican president. Most of these horrid alphabet departments are given to us by republicans....Carter gave us the department of education, don’t need that one, it was a payoff to the unions for supporting him...Bush gave us homeland security, GHWB gave us americans with disabilities act. Don’tknow who gave us BATF. Its congress’s way of not having to take the heat for “regulations” that are no different than laws they make, but just a different label..
This matter, or at least a very similar case, was decided in Rapanos v US.
The neo-Nazis at EPA keep giving the finger to the court and congress and refuse to carry out the EPA edicts as passed by congress and affirmed by the USSC.
Congress refused to punish the EPA for what it did in the Rapanos incident, including extortion, threats, trespassing and refusing to obey the law. For that alone, Congress should have held hearings and imprisoned these neo-Nazis. If congress doesn’t do its job, it will fall on the states to do the work that needs to be done to remove these Nazi pigs from our soil.
Excellent point.
One of the things I liked about Cain was how he talked about getting rid of the EPA.
I googled this case. From what I read, almost 50% of the lot was filled in with rocks and gravel.
Not only is such collusion "not unheard of" -- it is the norm here in NJ.
Result of this corruption-driven overdevelopment:
Massive flooding of older neighborhoods that had never flooded before.
That's probably because the photo you saw was an "after" picture.
As far as I know, no "before" pictures are available.
This case has been around for several years. I first became aware of it two years ago, I believe it was.
At that time, a photo was posted on FR that showed the couple standing on their lot. It appeared to be relatively level and fully grass-covered -- suggesting that there was no significant fill work (unless it was outside the camera's field of view).
I've also viewed an aerial...and the lot was visually indistinguishable from the adjacent lots.
At any rate, there was obviously no expectation of a "wetlands" designation at the time they purchased the lot and were issued a building permit. And, from the photos, one could see why.
I've dealt with the COE on a "wetlands" issue before. And, as far as I'm concerned, the liklihood is that the couple has fallen afoul of some faceless bureaucrat with a bone to pick in the EPA.
I'm rooting for the plaintiffs.
Like I said -- it was grass-covered, with no evidence of any fill.
Check out these photos and maps:
Sackett's empty lot
Sure looks like a lot of gravel to me. Btw, this photo is actually posted by the people who are DEFENDING the Sacketts!
Here's an aerial view:
Bing aerial view
The Sackett's lot is pretty obvious. It's the one that's completely denuded and light in color (probably covered with light gravel).
Cf. this diagram of the Sackett's property (posted by a Spokane newspaper):
cleared area of Sackett property
wetlands map of area surrounding Sackett property
US Fish & Wildlife Service wetlands map
Looking at this photo along with the Fish & Wildlife Service wetlands map posted above, it's pretty obvious to me there are wetlands immediately to the north and west of the Sackett's lot ... which, as you can see, has been completely stripped and probably filled in this picture.
If you read the briefs filed with the courts you will see as a "finding of fact" that the Sacketts filled approximately 0.5 acres of their 0.63 acre lot. That means they filled in almost 80% of the lot.
I agree, and that is exactly what the EPA's compliance order asked them to do.
Even if we had "a functioning justice system," it is absurd to demand that neighboring homeowners sit by and wait for their property to be damaged or destroyed by a party's illegal actions.
And further absurd to demand that the injured party pay big $$$$ to lawyers to sue, after the damage has been done. As well as be forced to wait years and years for a settlement or award that may never be realized.
On the other hand, it is not absurd to seek a stop work order to STOP the damage being done by the illegal alterations to the property. And it is to the benefit of us all that we PREVENT the need for litigation.
I don't see any Fish & Wildlife "wetlands" map.
But we're arguing around the fundamental issue here. Which is:
Should the federal government (and the EPA) have controlling authority over every mud puddle in the country?
Based on my own experience, such rulings can go beyond the absurd. And, if everybody in town thought the lot was buildable and a permit was issued, I would conclude that this was one of those rulings that went beyond the absurd.
What we should all be arguing is that the EPA shouldn't have any friggin' authority to do what they've done to these people.
And I wish them the best in sticking it up the EPA's butt.
Sometime I get lucky when I spew legal analysis. To whose attention do I sent the bill? There's the fee for the legal analysis, and the surcharge for the reasoned legal analysis, and the sur-surcharge for being right.
I just looked at the aerials. Is there a natural explanation for this lot, and only this lot, being built up like a table, higher than any of the surrounding property, side to side and front to back?
You don't seem to understand how these things work, typically, on the local level.
Not "everybody in town" thinks lots are buildable. Very often, entire existing neighborhoods are up in arms over a developer's plan to build on a lot that is quite obviously unsuitable (steep slopes, wetlands).
But if your local officials are corrupt (pretty common), developers get away with murder.
In my town we've had developers build on lots that were never deemed "buildable" -- until the insane housing mania of the last couple of decades. With vacant land scarce, the pressure was on, and suddenly these lots were granted local variances and deemed buildable!
And as I mentioned in previous posts: Now we have existing neighborhoods flooding, that never flooded before.
Ok if the link in post 35 doesn't work for you, I will try to post the image here.
The white arrow on this map points to the bottom right (southeast) corner of the Sackett property. You can see the outline of the cleared lot underneath the green, in the area that has "PSS1C" superimposed. 
Ha. Yes it's pretty obvious, isn't it, when you bother to take an informed but unbiased look at the situation.
I am a pro-property rights conservative. But I also respect the law. And after seeing the way some developers flout the law, aided by corrupt local officials --and after seeing the harm these developers do to existing neighborhoods-- I've gained an appreciation for wetlands law.
My suspicion is the Sacketts knew darn well they were violating the law. Mr. Sackett owns an excavating and land filling company! He does plenty of work in the area.
So I find it totally unbelievable that he didn't do his due diligence.
In fact, if you read some of the other articles that have been written about this case, you will find that Mr. Sackett DID hire an expert to determine if the lot had wetlands on it. And guess what? The expert determined that there were wetlands on the lot.
Mr. Sackett didn't like that answer, so he kept on hiring more experts to evaluate the lot ... until he got the answer he wanted.
Then Sackett filled those wetlands in. Looks to me like he just thought he could get away with it.
I hope any other poster will note that my first post was entirely hypothetical and said it had nothing to do with this case. I knew nothing about this case. I still know virtually nothing about this case. I was simply responding to what legal remedy would be appropriate IF an adjoining landowner made illegal (note: the premises was 'illegal') .changes to his/her land that caused your land to flood to the point that it suffered material damage whenever it rained.
In that case, requiring you to sue for damages each time there was a rain is not a sufficient remedy. Requiring you to move and allowing your offending neighbor to purchase your land is not a sufficient or just remedy. Requiring your neighbor to undo the illegal changes is a sufficient remedy.
It's been some time since I worked in real estate, but the one aerial view suggested that there was natural low-lying area and it's clear that this one lot, and only this lot, was built up like a table top above the surrounding lots and land.
Then I see this wetlands map. I don't always trust the EPA. Actually, I generally distrust the EPA. But I saw the aerial and the lake. If you have a lake, then it's likely that water drains to the lake through some form of watershed, if there's no natural spring or stream/river-fed source. In the aerial and on this map, there's a watershed 'valley' that drains to the lake. The lot that was filled illegally (85% filled according to the findings of the court) is smack-dab in the middle of the watershed valley, just before it enters the lake. All waters collected by the watershed are building and flowing right through this lot. I'll bet the purchasers and the developer got a bargain price on it. This was the point of the funnel. It's at the collection point.
The point of the funnel and they filled it, so that water would flow around it, just as if you put a large rock in the middle of a stream. No wonder the neighbor's property flooded.
Yes and it is disingenuous of the Sacketts to continually claim "they had no reason to suspect there were wetlands on their property."
This BS is being repeated by reporters who want to sell a sympathetic story about this couple and portray them as David vs Goliath (I even saw one article about the Sacketts with that title).
But here is what the Sacketts are not telling us, and what most reporters are not reporting [all emphasis mine]:
On the surface, the Sacketts seem to present a compelling saga of the little guy falling victim to abusive federal regulators......The Sacketts said they had no reason to suspect there were wetlands on their property.
They paid $23,000 for their property in 2005. Their excavating business was doing well in the middle years of the decade and by early 2007, they decided the time was right to build a modest three-bedroom home.
Their employees spent three days filling in just under a half-acre of land. [I.e., approximately 80% of the lot] The next step was to begin pouring the foundation.
Then, three EPA officials showed up, said they believed the land was wetlands, asked for a permit and told the workers to stop. Six months later, the EPA sent the order that triggered the court case.
Mike Sackett says someone must have tipped off the EPA to the work.
But the NRDC has produced documents that suggest the Sacketts have left out important parts of the story.
The documents, obtained from the U.S. Army Corps of Engineers under the federal Freedom of Information Act, show that the couple disregarded the opinion of a wetlands expert they hired to evaluate their property. The Sacketts also passed up an offer from the Army, which shares jurisdiction over wetlands with the EPA, to seek a permit that might have allowed work to continue on the site with little delay, according to the NRDC.
Tom Duebendorfer, a biologist who specializes in wetlands, confirmed to The Associated Press that he advised the Sacketts in May 2007 that their property was a wetlands and that there were wetlands on three sides of their land. The Sacketts say that in 2010, other wetlands consultants examined their land and concluded Duebendorfer was wrong.
"I maintain they were wetlands," said Duebendorfer, who says he has worked in the Pacific Northwest for 35 years.
He also said it would have been relatively easy and inexpensive for the Sacketts to fill out what is called an "after-the-fact" permit with the Corps of Engineers that is intended for situations like the Sacketts'.
Levine, the NRDC attorney, said the permit is "meant for the little guy..."
I don't endorse everything the EPA does, either. A lot of what is going on under Obama is highly politicized.
However, that does not mean that all wetlands regulation amounts to the EPA swooping down on homeowners who "have a puddle in their yards." Too many of us on the right parrot that line, and it is not true.
Wetlands laws are longstanding --they predate any Obama influence, and many of them are there to protect "the little guy," i.e. the other homeowners who would be damaged or ruined if wetlands development were permitted.
There is even a projecting lobe of the wetlands at the head of this course, plus a creek-like curve contour to these trees (which also appear to taller along the drain).
I see no compass rose on that map, so let's use left and right. if the complaining owners' property is to the left of the Sacketts', then some portion of the water was diverted. If the complaing owners' property is to the right - and what you say is true - then by filling in their property the Sacketts prevented all of that drainage to the right of them from draining to the 'lobe.' It would hit their property like a dam and . . . flood the adjoining property. Which gets us back to the very beginning. Filling 85% of that property could cause the adjoining property to flood. A lot more than I first thought, if you're right about the lobe.
In fact, the more I read about this case, the more I'm convinced the Sacketts are outright lying. They had to know the lot was surrounding on 3 sides by wetlands, and was extremely likely to be a wetland itself, as they were advised by an expert they hired back in 2007. (See post 46 above.)
In any case, what the Supreme Court is going to decide is not which party is right about the existence of wetlands.
The only question before the court is whether the Sacketts had a right go to court to try to get a judge to overrule an EPA/Army Corps of Engineers wetlands determination.
I strongly doubt the Court will go along with the idea that a dispute over the existence of wetlands should be settled in court.
First, courts do not have time to become experts in the technicalities of wetlands determination.
Second, allowing this kind of litigation would further clog the courts.
Third, "the little guy" already has remedies available. The Sacketts chose to ignore those remedies (see article quoted in post 46).
Drained by the borrow ditch on the side of the road, adjacent to the swamp. Note that the area between the swamp and the road is not labelled "wetlands".
Still, I don't believe we should be arguing these fine points -- it misses the issue. Which is: SHOULD A FEDERAL AGENCY HAVE THIS KIND OF AUTHORITY, TO REGULATE MUD PUDDLES IN A SMALL COMMUNITY IN RURAL IDAHO?
I submit the answer is "No". There is evidently a local board empowered to issue a building permit. They are far more capable of judging the circumstances than is the EPA or any other federal agency.
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