FreedomWorks recently announced the launch of the American Freedom Initiative (AFI), a collaboration headed by former acting U.S. Attorney General Matt Whitaker. This project aims to help relieve injustices committed against Americans under the criminal justice system and the regulatory state. As part of this project, we will shine a spotlight on some of the individuals the AFI has identified under its Administrative Abuse Project who have been the victims of federal regulatory overreach.
In 2007, when Chantell and Michael Sackett received approval to build a home on land they had purchased in the far north of Idaho, they could never have known that they were beginning a litigation nightmare against the government that would span over a decade (and remains ongoing). The Sacketts have unfortunately become poster children for the unchecked power of the U.S. Environmental Protection Agency (EPA) to demolish citizens’ rights to their own property.
The Sacketts had gone through all appropriate local red tape — their property was part of a subdivision that was zoned residential, hooked up to sewer utilities, and they had received permits to build a home. However, a portion of their ⅔ acre plot was marshy, and they hired someone to come fill it in with dirt. Some neighbors apparently disapproved, and EPA officials showed up and declared that the Sacketts were dumping “pollutants” on a federally-protected “wetland” under the Clean Water Act, because their land might feed into the “navigable waters” of Priest Lake, which was separated from their land by a road.
The EPA responded by issuing a compliance order that the Sacketts could not build their home, had to undo the landfill, and would be subject to several years of monitoring before being allowed to touch the land again. If they did not comply, they faced “civil penalties up to $75,000 per day and possible criminal sanctions.” Worse, the EPA had no process for allowing any appeal of their decision – they did not need to provide any evidence to support their judgement and their compliance order was effectively law.
Thankfully, the Pacific Legal Foundation stepped up to take the Sacketts’ case, arguing that the couple’s basic rights to due process were being violated because of the lack of an ability to appeal EPA decisions. The Administrative Procedures Act (APA) is supposed to provide for judicial review of agency decisions, especially if their order was “arbitrary and capricious,” as the Sacketts alleged. The EPA, however, held that as long as they had correctly deemed the portion of their property as a “wetland” under the definition provided by the Clean Water Act, then that decision, and any compliance order attached to it, was final and not subject to judicial review.
Although a district court sided with the EPA, the Sacketts and the Pacific Legal Foundation argued the case all the way to the U.S. Supreme Court, which determined in 2012, in a majority opinion authored by Justice Scalia, that the Clean Water Act did not supercede the APA and that the Sacketts “may bring a civil action under the APA to challenge the issuance of the EPA’s order.” This was an important precedent to win for every other landowner subject to an arbitrary EPA decision under the Clean Water Act, but was sadly only the first step towards justice for the Sacketts, who then had to actually win their suit against the EPA.
In 2019, after over 12 years of fighting the EPA, the Sacketts were dealt a blow when a U.S. District Court judge ruled that their land did in fact qualify as a federally protected wetland under the Clean Water Act. The court held that by regulations under the Clean Water Act passed in 1987, the fact that the Sackett’s land was near a navigable waterway and held permeable soil that drained towards that waterway, they could not landfill their land. This, in spite of the neighborhood around them which had clearly all been built on similar land without the EPA’s interference.
While the Sacketts have continued to appeal this ruling, they finally received some relief on March 13, 2020, in the form of a letter from the EPA stating that the agency was withdrawing their compliance order and all the crushing fines associated with it. However, they still linger in legal uncertainty as to whether they are finally permitted to build their house on the property, as the EPA appears to still deem the landfilled property a wetland.
Though protecting our waterways from harmful pollution is certainly a laudable goal, the Sacketts’ ongoing struggle is a prime example of federal overreach that threatens local sovereignty, due process, and the basic right to your own private property. The final resolution of their case will have broad repercussions for all property owners across America.