Skip to comments.Capital lawyer to have Supreme moment (property rights case)
Posted on 01/08/2012 2:55:35 PM PST by WilliamIII
WASHINGTON Sacramento attorney Damien Schiff will be carrying the conservative flame Monday when the Supreme Court considers what could become the year's hottest environmental case. For the 32-year-old Schiff, a senior staff attorney with the Pacific Legal Foundation, the hourlong oral argument marks a personal milestone. The Monday morning session will be his first appearance before the famously aggressive questioners of the nation's highest court.
"There is a greater intensity of preparation," Schiff acknowledged Thursday, following a moot court session at Georgetown University Law Center. "Everyone knows that (an attorney) is lucky to have 30 seconds to make their case, and then it's off to the races." But for home builders, farmers and major corporations, the case called Sackett v. Environmental Protection Agency resonates well beyond one man's ambitions or even the wetlands protections specifically at issue. Business groups reckon the case can help roll back federal regulations along a broader front.
"The Clean Water Act has, in short, become a tool for regulators to micromanage even the most routine decisions of farmers and ranchers," attorney Mark Stancil wrote, in a brief filed for the American Farm Bureau Federation.
(Excerpt) Read more at sacbee.com ...
So, did the EPA discover the infraction from satellite pics or did someone local drop a dime on ‘em?
By KEITH KINNAIRD News editor | 5 comments
NORDMAN Jack Barron has something in common with Mike Sackett.
Both Bonner County landowners are tangling with the U.S. Environmental Protection Agency over wetlands and development of their respective homes near Priest Lake.
But Barron has the distinction of being put through the wringer of federal criminal proceedings over the dispute. He was indicted in 2009 by a federal grand jury on charges of placing fill in wetlands and an unnamed tributary on his land near Lamb Creek. Barron, 66, was fingerprinted and processed through the U.S. District Courts pretrial services system, which imposed probation-like conditions while his case was pending.
Jurors who heard the case against Barron, however, acquitted him after an eight-day trial in 2010. It was no small feat given that federal criminal conviction rates reach 90 percent in some jurisdictions and the government has vastly deeper pool of funding to draw from in a court case.
Barron figured it was over and he could resume developing his retirement home with his wife, Jill. But about a month after the verdict, Barron received a letter from EPA reminding him he was still subject to a compliance order requiring him to restore the wetlands he disturbed. It was like it never happened, Barron said of the acquittal in the criminal case.
The compliance order, which was not addressed in the criminal proceedings, requires Barron to develop and implement a wetlands restoration plan, and provide monitoring reports to demonstrate compliance. It could be a half-million dollars, said Barron, estimating the cost of fulfilling the compliance order.
Failure to heed the compliance order invites costly federal penalties. Barron insists the water on his property is not wetlands, a point which he argues was established through his expert witness at trial. Barron contends water backs up onto his property because of an improperly installed U.S. Forest Service culvert and a permeable road bed that allows stormwater to seep through.
Barron said EPA is trying to create wetlands on his property the action amounts to a regulatory taking for which he should be compensated. Theyre taking this land without compensation, he said.
Hanady Kader, an EPA spokeswoman in Seattle, said the agency typically does not comment on open enforcement actions, but released a statement Friday to clarify its position on the Barron matter. The agency asserts that Barrons home site development resulted in several violations of the Clean Water Act, the primary federal law protecting water quality. EPA said rock and fill materials were discharged into four acres of wetlands, which drain into Priest Lake.
Moreover, Barron can continue developing his property if he secures a Clean Water Act permit, EPA said. Permits do not preclude development, but they require the permit holder to avoid, minimize and mitigate impacts to wetlands, the EPA statement said.
When wetlands are harmed repeatedly around the country, the cumulative impacts can significantly degrade the nations water quality, according to EPA. While Sacketts case is wending its way toward the U.S. Supreme Court, Barrons case has attracted the attention of Bonner County officials, U.S. Rep. Raul Labrador, R-Idaho, and Fox News Channels John Stossel.
The Bonner County Property Rights Council has agreed to investigate the Barron matter, but has yet to take a position on it. The property rights council, which has raised eyebrows because of its links to the conservative Tea Party movement, makes recommendations to the county commission.
Commission Chairman Cornel Rasor said Bonner County land use codes permitted Sackett and Barron to build on their land. He also contends that the Federal Land Policy Management Act requires the government to negotiate conflicts with local jurisdictions. Our comprehensive plan allowed the Sacketts and the Barrons to build there. The EPA came in and shut them down. That ignores our land use plans and they cannot do that, said Rasor.
EPA maintains that the agency is not usurping local land use codes. However, landowners are required to comply with federal law.
Barron recently tried to negotiate with federal regulators to resolve the dispute, but he balked because he would not be allowed to keep a garden or run a single head of cattle for subsistence use. Barron also bristled at the open-ended tone of the restoration work. EPA said the ship has not sailed in negotiating a resolution despite the current impasse.
EPA remains open to discussions with Mr. Barron to resolve the case, EPAs statement said. Barron, meanwhile, is appealing to legal foundations that assist embattled landowners in the West.
If the attorneys dont take this case, the Property Rights Council is the last shot Ive got, he said."
Still unclear to me how this whole thing started, given that the EPA office is in Seattle (where one would think that they have more than enough fresh water).
I would note that one Spring, two ducks tried to nest in my front yard before the frost was out of the ground.
I hope they rule against the EPA. Make them and their regulations subject to the courts.
Go Damien, GO!!! Give ‘em a devil of a time!!!
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.