Justices: EPA's actions 'outrageous,' 'high-handed'

WASHINGTON (AP) - Several Supreme Court justices are criticizing the Environmental Protection Agency for heavy-handed enforcement of rules affecting homeowners.

The justices were considering whether to let an Idaho couple challenge an EPA order identifying their land as "protected wetlands." Mike and Chantell Sackett wanted to build their house on the land. But the EPA says the Sacketts can't challenge the order to restore the land to wetlands or face thousands of dollars in fines.

Justice Samuel Alito called EPA's actions "outrageous." Justice Antonin Scalia noted the "high-handedness of the agency" in dealing with private property. Chief Justice John Roberts said that the EPA's contention that the Sacketts' land is wetlands, something the couple disagrees with, would never be put to a test under current procedure.

The justices will rule by summer.

The Press has been following this issue. Here is the most recent story that was published in December.

Wetland worries - Bonner County landowners haggling with EPA over developments near Priest Lake

Coeur d'Alene Press - Sunday, December 4, 2011

Keith Kinnaird, Hagadone News Network

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 of 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 a 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 the 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 the EPA trying to create wetlands on his property amounts to a regulatory taking for which he should be compensated.

"They're 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 Barron's 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 nation's water quality, according to EPA.

While Sackett 's case is wending its way toward the U.S. Supreme Court, Barron's case has attracted the attention of Bonner County officials, U.S. Rep. Raul Labrador, R-Idaho, and Fox News Channel's 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.

The 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.

The 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," EPA's statement said.

Barron, meanwhile, is appealing to legal foundations that assist embattled landowners in the West.

"If the attorneys don't take this case, the Property Rights Council is the last shot I've got," he said.