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The Personal Cost of Big Government Thuggery

Most Ricochet readers are probably aware of the big-picture legal aspects of the EPA vs. Sackett case that was decided in favor or Mike and Chantell Sackett 9-0 in the Supreme Court in March.  (Richard Epstein provides an excellent summary here.  Reading the arguments of the government – that, in effect, the EPA has the right due to the Clean Water Act to impose its will on any private citizen it chooses and there is no legal recourse for the citizen — makes my blood boil.   I won’t recap all the particulars here or this post would be epic length, but you can read up on the details here.  Most would say the slap-down of the EPA meant justice was served.  Turns out, it’s more complicated than that.

In doing research for an upcoming novel based partly on the Mike and Chantell Sackett, I was curious about the personal cost to innocent citizens when an out-of-control federal agency decides to target them, and what it would be like to be on the other end of such a tyrannical bureaucratic assault. I spoke to Mike Sackett just weeks after the decision, in my neighboring State of Idaho, where the Sacketts live.  Mike is a solid, normal guy who works hard to make a living in construction.  He wasn’t particularly politically minded when this started.  He is now.

What sticks with me – and makes my blood boil even more! – are some of the personal details of their seven-year battle which is still not over, despite the Supreme Court victory.  So if you love freedom, sit back and prepare to become very angry. 

In 1998, after obtaining all the necessary permits to begin construction of a vacation home on a three-acre lot near Priest Lake they’d purchased for $28,000, the Sacketts prepared the ground for construction by hauling in several loads of fill-dirt.  The lot was surrounded by previously built homes and it contained no stream (or stream bed), ponds, or marsh.

Several days after moving the first dirt, three people – a man and two women – flew 500 miles from the EPA office in Boise to Priest Lake to confront Mike Sackett.  They arrived in a rental car and they ordered him to 1.) Remove the fill-dirt, 2.) Seed the ground with “wetlands” plants, 3.) Fence it for three-to-five years, then 4.) Apply for an “after-the-fact” permit from the EPA which they’d be unlikely to obtain.  And until the Sacketts complied, they would be fined $75,000 per day.

The three federal bureaucrats produced no warrants, or documents, or badges.  The only thing they left with Mike Sackett that day was a single business card from an EPA mid-level staffer named Carla Fromm.  All of the charges and allegations were verbal.  The bureaucrats got back in their rental and left.

Obviously, the Sacketts were stunned.  Even a week’s worth of fines would wipe them out.  Chantell finally reached Carla Fromm in Boise and asked how the EPA determined that their lot was a wetland.  Fromm cited a U.S. Corps of Engineers on-line national wetlands inventory database.  Chantell Sackett checked it out and their lot wasn’t on it.  Triumphant, she called Fromm back with the news and was told that the EPA didn’t really consider the database authoritative.

The Sacketts hired their own engineer, who determined the lot was not a wetland.  The EPA didn’t even respond to the report.

 For seven long months, the Sacketts requested some kind of documentation, some kind of official EPA letter outlining the charges against them.  They sent certified letters to the EPA office in Boise begging for clarification.  There was no response.  Meanwhile, the daily fines continued to mount.  Finally, after 200-plus days since the verbal charges had been delivered, the EPA sent the Sacketts and official compliance order.  By then, they purportedly owed over $15 million in fines.

 At one point, the Sacketts offered the title to their lot to the EPA, saying, “We give up.  Just take it and leave us alone.”  The EPA refused to consider the offer.

 The Sacketts contacted the Pacific Legal Foundation – thank God – and the legal battle began.  But the problem wasn’t cut-and-dried, because the EPA’s own regulations won’t permit a citizen’s day in court until every procedure has taken place within the agency and hundreds of thousands in lawyer’s bills have been exhausted.  And the Ninth Circuit agreed with the EPA.

For seven years, Mike and Chantell Sackett fought our government.  It consumed their lives.  Dozens of government lawyers and hundreds of bureaucrats – paid for by your taxes – aligned to ruin them.  By the time the Sacketts arrived at the U.S. Supreme Court, our government said they owed $110 million in fines.

Even as the case wound its way upward through the system and it became more and more obvious that the EPA had no real case, not a single EPA bureaucrat tried to settle or apologize – not even privately.   Even after the Court shot them down 9-0. 

It would be wonderful to say it was a happy ending.  But for the Sacketts, it’s not over.  The decision simply gave them the right to go to court to prove the EPA was wrong in the first place.  Mike Sackett told me that behind the scenes the EPA has quietly offered to settle.   But until they do, the Sacketts still can’t build their home.

To my knowledge, no one in the EPA has been arrested, or fired, or reprimanded. Carla Fromm is still listed on the Idaho staff page of the EPA website, although it hasn’t been determined who exactly initiated the action against the Sacketts and no one has stepped up – or been named — to take responsibility for it.  Such is the black maw of bureaucracy.

We currently live in a country where mid-level federal bureaucrats — armed with nothing more than a business card and shielded by civil service rules that deter accountability — can arbitrarily choose to destroy the lives of innocent private citizens.

I stand in awe of Mike and Chantell Sackett — ordinary Americans from Nordman, Idaho, who pulled together and fought back against the out-of-control power and preening might of our government itself.   They give me hope.

Think about it, on this Memorial Day Weekend.

  1. tabula rasa

    Two quotations on the nature of bureaucracy: 

    Bureaucracy:  “Power without wisdom.”  [Richard Weaver, Ideas Have Consequences,145]

    “Where administration is light and bureaucracy small, bureaucratic honesty is an incomparable virtue; but where these are heavy and large, . . . they burden and obstruct the inventive and energetic.  Where bureaucrats are honest, no one can cut through their Laocoonian coils:  their procedures, no matter how onerous, antiquated, or bloody-minded, must be endured patiently.  Such bureaucrats can neither be hurried in their deliberations nor made to see common sense.  Indeed, the very absurdity or pedantry of these deliberations is for them the guarantee of their own fairmindedness, impartiality, and disinterest.  To treat all people with equal contempt and indifference is the bureaucrat’s idea of equity.”  [Theodore Dalrymple, Our Culture, Or What’s Left of It,“The Uses of Corruption,” 193]

    God bless the Sacketts and all others like them who bear the imprint of the jackboot of the American bureaucrat on their foreheads.

  2. Aaron Miller

    Well said.

    My grandma told me about one of her neighbors decades ago who guarded her front lawn with a shotgun for days to prevent the city of Mobile from paving a sidewalk across her property. As a result, the whole street had a sidewalk, but not her yard. It sounds like overkill in that particular case. But I’ve considered whether or not similar measures might one day be necessary to prevent the government takeover of Christians hospitals and schools at some point.

    Americans have come to rely far too heavily on courts and lawyers. Our freedoms were not granted by lawyers, so lawyers cannot take them away. We need to assure our neighbors that we will help them protect their rights and property… from politicians and bureaucrats, if need be.

  3. Doug Kimball

    I’ve experienced this arrogance myself, numerous times, though in not quite so desperate circumstances.  If you resist, they get even and use their authority to bash you into line.  Their defense – I’m just doing my job, Mr. Kimball.  A citizen should not have to turn to the courts to tangle with this beast.  An independent ombudsman’s office should be empowered to quiet the bureaucratic beast when these disputes arise.  The energy and resources wasted here could easily justify this.

  4. Albert Arthur

    My blood is boiling!

  5. Caroline

    Can you imagine them managing our healthcare? 

  6. Mel Foil

    A few years ago, the Left was desperately looking for any torturers working in the federal government. They were just looking in the wrong department. I’m sure the Sacketts would’ve opted for waterboarding any day of the week. What the EPA does is make you want to drown yourself.

  7. David Holtkamp
    Dear CJ – my wife just finished reading my collection of 10 of your books (I’m still 2 behind) and I was delighted to see you posting on my favorite site.  Thank you for telling the story of the Sacketts – such stories are legion in the west.  Keep up the good work!

    From Los Alamos, NM

  8. Chris Johnson

    I have great sympathy for their position.  They are still in the difficult position of having to attempt to prove a negative.  If you have contact with them, You may wish to pass this along:

    Wetlands are identified by 3 classifiers: Plants, water, and soil.  The plants are gone and the water is both absent and precluded, by fill.  So go the soil route.

    Pull back the fill in 3 locations and have the soil scientist from the local (formerly Soil Conservation Service) Natural Resources Conservation Service classify the soil.  Make sure it’s a real professional that knows the soil out of those holes will have to be matched back to the “pedon” for that soil type, which any opposing consultant could confirm, if need be.  The NRCS has gotten a bit “green”, lately, but they’re not typically radicals, as with the EPA.

    No firmer, more reliable classifier exists than the historical record preserved in the soil.  The soil will record if it is seasonally flooded, or the water table is within a few inches of the surface seasonally, which is a necessary requirement for wetlands classification.

  9. C.J. Box

    Thank you, David, for reading all the books.  And don’t avoid the stand-alones, either.  I think you’d like them.

    Yes, the Sackett vs. EPA is one of those stories that if portrayed in fiction would be considered too over-the-top by many readers and critics.  Unfortunately, it happened.  And it’s likely happening to other Americans, as pointed out by Bob Williamson above.

  10. C.J. Box

    CJRun, that’s excellent advice.  I don’t know all of the particulars, but the Sacketts did receive an independent analysis that confirmed the lot they own is not a wetlands.  And from what I understand, the EPA never really presented any evidence that it was, other than simply declaring it so.

    Plus, the lot is so close to existing homes that, according to Mike Sackett, you can throw a rock and hit other houses from their property.

    This was not a battle of science vs. science.

  11. Bassett and Wilson

    This is the nature of these bureaucracies. They take a position determined frequently by a nonlawyer bureacrat who thinks they understand how some combination of rules and facts as they understand them should apply to a given situation. They are often not equipped with the intellect and energy to make a correct determination. Rather they shoot from the hip. One major problem even if you agree that the administrative state is a good idea is that the bureaucrats who actually administer the rules have no skin in the game. This is similar to one of the issues the large financial firms have where the managers don’t have their personal net worth on the line. There is no cost to them for making incorrect determinations. Instead the regulated bears all the costs. The case described in this post is a particularly egregious example of what goes on everyday on a smaller scale all over the country at the state, local, and federal level. This in part what the regulatory tax looks like.

  12. Chris Johnson

    “…the Sacketts did receive an independent analysis that confirmed the lot they own is not a wetlands.”

    Sorry, but probably not good enough.  You say they now have won the right to take the EPA to court, but it sounds to me like (and this is typical), the Sacketts will bear the burden of proof.  That is completely wrong, but also the way things are.

    It is very unlikely that a court will accept the expert opinion of the independent analysis.  I would advise the definitive analysis, possibly available for free from the local NRCS extension agent, or maybe for a nominal fee.  No one is going to contest the local soils expert; I’m a certified hydric (wetlands) soils classifier and I wouldn’t contest the local expert.

    The presence of other homes will be considered irrelevant and they will just fall back on the, “It’s not our fault that our predecessors missed those” defense.

    I promise you, the EPA types are completely hopeless, but a judge can read the clear criteria and if the soils back the Sacketts, the EPA will be ruled against.

    This brings up an important point:

    (continued)

  13. Chris Johnson

    (continued)

    The soils will not lie about the history.

    The plants are gone.

    This and any other family facing a similar issue needs to ask themselves a question and answer it honestly:  Were those soils wet, before they had the fill placed?

    Since we’re using the federal rule, here, we need to ask ourselves if those soils were “inundated” (flooded), or saturated, for 3 months out of the year, during the growing (wet) season?

    Saturated is interpreted as meaning the water table got within 3 inches of the soil surface, but you should be able to feel that, beneath your feet.

    Also, this is a great 10th Amendment topic, as these issues should always be managed locally.  Using the federal definition, just about anybody’s yard could be claimed as a wetland.  How many people have yards without a mushy spot or two, during the wettest part of the year?

    Local regulatory entities typically recognize that reality and have sensible exceptions, such as wet areas that are isolated and less than 1/2 acre in size.  Not the feds.  And the feds have lawyers that are happy to stay in court, all year, every year.

  14. Viator

    It might be useful to review the birth of the EPA.

    In 1970 Republican president Richard Nixon developed a plan for an independent agency – the EPA.

    The 1970 Clean Air Act passed the senate 70 to 0.  The house vote was 375 to 1.The bill was signed by Richard Nixon.

    The 1977 Clean Air Act passed the senate 73 to 7. The house was vote was 326 to 49.  The bill was signed by Jimmy Carter.

    The 1990 Clean Air Act passed the senate 89 to 10. Yea votes included Mitch McConnell, John McCain, Phil Graham, Richard Lugar.  Orrin Hatch voted nay. The house vote was 401 to 25. The bill was signed by Republican George H. W. Bush.

    The Clean Water Act of 1972 (Muskie Bill)  passed the senate 74 to 0 with strong support from Howard Baker (R) and Robert Dole (R). House vote was 366 to 11. Nixon vetoed but both houses voted to override.

    The Safe Drinking Water Act of 1974 passed both houses unanimously. Signed by Richard Nixon.

    The Safe Drinking Water Act of 1996 passed the GOP controlled senate unanimously with support from Dirk Kempthorne (R),  Strom Thurmond (R) and Mitch McConnell (R).

  15. RedRules

    There could be no greater justice if on Jan 20, Romney dissolves the EPA via executive order. And the NEA. And the Dept of Education. And the Dept of Energy.

    Deficit? What deficit?

  16. People who own businesses suffer this all of the time. Mostly we can handle it however we personally have had two instances in the past year that have really made our blood boil. In the last instance our mild-mannered accountants were shocked by the momentary look of rage on our faces where they were used to reasonable people sitting in their office (they’re conservative too). We swallowed once again. The other was the Right to Unionize thing we had to hang- but excuse me it’s against the law for me to even talk about it. Many are waking up, but what can you do? Only vote. This is why there is no excitement for Romney. Things will get better but we have no confidence in real reform. Also, I encourage conservatives to speak up in their own lives and quit trying to keep the peace at the expense of the truth. It’s for their good, ultimately, too. This is what the Tea Party is about.

  17. Also, fateful that their name is Sackett and good representations of the L’Amour family.

  18. Basil Fawlty

    Bureaucrats are many things, but omniscient usually isn’t one of them.  Has anyone learned how the EPA 500 miles away in Boise acquired an interest in the Sacketts?  Does EPA have a resident enforcement agent at Priest Lake or were they reacting to a complaint from someone else whose motives may or may not have been pure?  I ask the question because of the frequent use of environmental laws to obstruct projects that individuals or groups oppose for other reasons.

  19. Howellis

    In my limited experience with bureaucracy it’s my impression that the government agents who are persecuting citizens often have more discretion than they let on, and could find a way to avoid the unfair application of regulations, but they simply choose not to. I have seen it at the local level, especially with school officials. They are happy to disregard rules that will cost them something to enforce (e.g., a legal obligation to bus students to private school), and then other times they hide behind “It’s the law” when they don’t care about the consequences paid by the citizens they are supposed to serve. Philip K. Howard has written eloquently and persuasively about this in “The Death of Common Sense.”

  20. Eeyore
    C.J. Box… it hasn’t been determined who exactly initiated the action against the Sacketts and no one has stepped up – or been named — to take responsibility for it.  Such is the black maw of bureaucracy.

    *Sniff* *Sniff*  Hmm, an Operation Fast and Furious sort of stench.

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