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.