Skip to comments.Supreme Court case involving Idaho lake house ignites conservative cause against EPA
Posted on 01/02/2012 5:27:12 PM PST by WilliamIII
PRIEST LAKE, Idaho Chantell and Mike Sacketts 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 Sackettss four-year-long effort to build on land that the EPA says contains environmentally sensitive wetlands. A decision in the couples favor could curtail the EPAs 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 EPAs 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 EPAs 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 ...
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.
Personally, I don't care if the Sacketts are right or wrong. If they did something wrong, they should be sued and the decision rendered in a local court.
The Federal Government should have no role in matters such as this.
(a) A wetland is not a mud puddle.
(b) The authority to determine whether wetlands exist, in this area of Idaho, is by law jointly held by the EPA and the Army Corps of Engineers.
(c) And not every wetland in every "small community in rural Idaho" comes under the authority of the EPA/Army Corps of Engineers. I believe it is only in cases where the wetlands in question discharge into "navigable waters of the United States."
The Federal Government should have no role in matters such as this.
We were playing Texas Hold 'Em when I sat down at the table. If you're dealing now and want to change the game to Five Card Stud, fine. Did we decide who won the game of Texas Hold 'Em?
Have you ever discussed this subject personally with the Corps of Engineers?
Obviously, you have not.
I suggest you try it some time. You will likely learn a lot about how the COE and the EPA work.
Yes. And Priest Lake discharges into the Priest River, which discharges into the Pend O'Reille River which discharges into the Columbia. Which, at some far downstream point, is navigable.
But note that this definition cleverly leaves every mud puddle in the USA subject to COE and EPA jurisdiction outside of those streams in undrained depressions. I.e., the Great Basin of Northern Nevada, the Continental Divide basin of Wyoming, the Salton Sea and Death Valley.
If you're in the other 96.5% of the USA, your mud puddle is under the supervision of the COE and the EPA.
I didn't change anything. My position from the outset is that the COE and EPA should have no jurisdiction over the matter.
Now here is a question for you:
If a corner of your backyard doesn't drain well and has any of these grasses present, and flows into the alley, which eventually leads to a borrow ditch along a roadside, which then empties into a creek that eventually empties into, say, Lake Erie, should the COE and EPA have any jurisdiction over that corner of your backyard?
Should they be able to tell you not to put a flower bed there? Or install a concrete pad for a barbecue? Or plant a pecan tree? Or even re-seed the area with different grasses?
Because, if that's the case, they do have that power. You just haven't encountered it yet...
"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."
There. I said it twice. Y'all enjoy the thread.
Did I ever disagree with you on that?
I've continuously said that a local court should have final jurisdiction.
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