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Lawsuit Against EPA Could Impact Agriculture

The U.S. Supreme Court heard arguments in an Idaho couple's challenge to an EPA wetlands enforcement action in a case that could have far reaching impacts for agriculture.

Mike and Chantell Sackett argue they should be allowed to sue the EPA before they have to comply with an agency order to restore wetlands on their Idaho property. The government says they must comply at a cost of more than $27,000 and seek after-the-fact judicial review, or pay at least a $37,500-a-day fine.

Justices at both extremes of the court seemed to suggest the Sacketts may not have exhausted their legal remedies, but also that EPA should not have a blanket exemption from any judicial review of compliance orders. Sackett's attorney Damien Schiff called it a David and Goliath case.

"Even though the Sacketts had all the county permits to build the EPA devastated them with their compliance order," Schiff said. "It charged them with violating the Clean Water Act, requiring them to restore their property to its alleged wetlands status, and imposing upon them the threat of tens of thousands of dollars a day in civil fines if it did not immediately comply with EPA's directive."

Mike Sackett says the couple was given no warning, which the court seemed to agree on, just a compliance order to restore their Priest Lake subdivision lot they were readying for a new home.

"We knew this wasn't wetland and we had scientific evidence but the EPA didn't care so they hit us with the compliance order," Sackett said. "They told us to remove the gravel, put the site back the way it was, plant wetlands plants that were never on that property, and to maintain and fence the property for three to five years, apply for a permit even though the EPA told us on May 31, 2007 that the EPA would not issue us a permit."

Sackett says he and his wife have now accumulated over $40 million fines.

"It's literally terrifying," Sackett said. "We thought how do we get out of this? There's going to be nothing left of our business, nothing left of our lives, and 40 jobs lost. But the EPA said we couldn't directly appeal their claim that our land is wetlands and the Ninth Circuit backed 'em up."

Now the Sacketts hope the U.S. Supreme Court will overrule the lower courts and give the Sacketts, and many other private property owners, their day in court.

The American Farm Bureau Federation, business, property rights groups and 10 states have filed briefs supporting the Sacketts. The case could be decided sometime next summer.