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.
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Comments:
Jun '10
Re: The Personal Cost of Big Government Thuggery
*Sniff* *Sniff* Hmm, an Operation Fast and Furious sort of stench.
Jun '10
Re: The Personal Cost of Big Government Thuggery
The Sackett case is not an aberration. Congress and unvoted administrative regulations have put many roadblocks to prevent people from getting reasonable results. Sadly I now believe that our federal government is composed of liars and thieves. That is my personal and professional experience. I hate that that is so.
Jul '10
Re: The Personal Cost of Big Government Thuggery
Because we couldn’t cry, we used to joke about the issues surrounding Superfund, the monies collected as taxes primarily from the chemical and petroleum companies (under “polluter pays” laws) to clean up toxic sites. As with the EPA’s current sand-poundingly insane interpretations of air quality and wetlands regs, Superfund rules expanded and spread like kudzu thru Mississippi.
One of the jokes was that in the middle of the night there was a knock at the door. Standing there were two men in trench coats with hats cocked such as to obscure their faces. Their comment was, “We found your name written on the back of this envelope in the dump we’re investigating. You’ll have to come with us.”
Today it’s them at the door again, but with the two tablespoons of standing water they found on your property.
But when we can put actual faces on people in the stories as we have been reading about and as you have done here, all humor ceases. The terror they are putting the Sackett’s and others through must stop. I truly hope Romney is up to the task.
Jul '11
Re: The Personal Cost of Big Government Thuggery
I have been through a couple of things like this with the government, but at a smaller level. My advice to the Sacketts is claim bankruptcy, go hide till they are forgotten and start over elsewhere. They can not win. Even if they win the court case, it will not matter since the EPA will continue to do what they wish and ignore the courts ruling. The Sacketts will have to fight another court case to enforce the ruling of the first but by that time their angel defender will have moved on to other dragons. There is no justice for the 99% anymore, there is just governments, corporations and little people. And the little people don't count for much.
Nov '11
Re: The Personal Cost of Big Government Thuggery
Am I allowed to say this? "That's one reason they invented the 2nd Amendment."
Jul '11
Re: The Personal Cost of Big Government Thuggery
Fake John Galt, sooner or later someone in the EPA will run in to someone like me but with all my kids grown up. It won't be pretty and you will read about it.
Feb '11
Re: The Personal Cost of Big Government Thuggery
C.J., do you know what hapoened to the fines? Did the Supreme Court suspend the entire accumulation of fines, or are they still accruing for the off-chance that the Sackett's lose? I find it atrocious that the EPA even has the power to issue $75,000/daily fines.
Re: The Personal Cost of Big Government Thuggery
ultra vires, I assume that the daily fines went away with the Supreme Court decision, but it's something I'll check on.
I agree that an unaccountable federal agency shouldn't be able to levy fines like that, especially since it appears that a mid-level bureaucrat can do it without any kind of agency-wide finding, and without the approval of a judge. To think that a federal employee can simply hand over his or her business card and say, "From this day forward, you owe us $75,000 a day" is beyond belief.
Astonishing has a point.
Edited on May 28, 2012 at 6:34amJul '11
Re: The Personal Cost of Big Government Thuggery
@DocJay #26: True, but other than changing the news cycle for a day it will make no difference in the long run. I really don't understand it. We keep talking about electing this idiot or that idiot but we never talk about the corrupt out of control bureaucracy that exists at all levels of government and keeps getting worse no matter who is running the show.
Dec '10
Re: The Personal Cost of Big Government Thuggery
This case caught me right in the nethers to say the least. Rhode Island is rife with bureaucratic drones with no sense of the spirit of the law they supposedly enforce. It brings me back to Ayn Rand, as many things do these days...
I think of the conversation in "Atlas Shugged" where the ultimate embodiment of the bureaucrat( the greasy Floyd Ferris?) basically tells Hank Reardon that they make so many laws because they expect people to break them . The respect for the Law melts away, and the power of the Beauraucrat builds. The only way something gets done is by pleasing the functionary and ignoring whatever spirit of the law existed. Thus the law becomes whatever the petty paper pusher sees in his/her little book.
Not to get too Meta here, but it makes a man the ultimate authority on morality. in other words, "Nothing is higher than my little book of regs."
When you dissolve responsabilty across multiple people and a disembodied book of regualtions you get moral chaos. When you hold a small group of locals responsable and you get civilisation.
Wow, the common sense power of having someone you know you can scream at.
Aug '10
Re: The Personal Cost of Big Government Thuggery
That's an understatement. And the bureaucrats wonder why people hold them in such low regard?
May '11
Re: The Personal Cost of Big Government Thuggery
I'm pretty sure there have been actual suicides over this stuff. As far as I can recall there are some examples in here.
Nov '10
Re: The Personal Cost of Big Government Thuggery
Bureaucracy is secular clericalism: the pious unbeliever imposes his will on others to preen his pretentious ego, convinced he is sanctifying his soul by rectifying their sins.
Edited on May 28, 2012 at 9:49amApr '11
Re: The Personal Cost of Big Government Thuggery
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).
Mar '11
Re: The Personal Cost of Big Government Thuggery
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.
Oct '10
Re: The Personal Cost of Big Government Thuggery
You need to hurry on the book - this needs to be made into a "based on a true story" movie/documentary. And it needs to be released before November.
Edited on May 28, 2012 at 2:40pmJun '11
Re: The Personal Cost of Big Government Thuggery
@Basil Fawlty has a great point: who snitched?
May '11
Re: The Personal Cost of Big Government Thuggery
It seems to me that one way to deal with this and other cases of bureaucratic overreach (if not tyranny) is a full press Freedom of Information Act campaign. Get all the memos and communications and find out who specifically approved this travesty. Too often bureaucrats, public and private, hide behind the process or the regulations as if that process is the active agent and the bureaucrat is the helpless relay of information. "Don't shoot the messenger" is the message but it's nonsense, a human brain decided that the Sacketts (and other victims) had to pay and the person that owns that brain needs to be brought into the sunlight to account for their actions.
Re: The Personal Cost of Big Government Thuggery
I am worried about the administrative inversion of the Constitution's bias toward legislative inaction. Consider that it now takes both houses of Congress and the President to stop bureaucratic laws taking effect. So a citizen may otherwise be harassed with impunity. Another related concern is that modern administrative agencies combine executive, legislative and judiciary functions under one roof, effectively gutting separation of powers, as the Sacketts can attest. (composed on iPad, sorry about typos.)
Apr '11
Re: The Personal Cost of Big Government Thuggery
"(a) Section 505(a)(1) of the Clean Water Act (hereinafter the Act) authorizes any person or persons having an interest which is or may be adversely affected to commence a civil action on his own behalf to enforce the Act or to enforce certain requirements promulgated pursuant to the Act."
"Citizen suit provisions exist under a host of environmental statutes and were designed to essentially deputize “private attorneys general” for the enforcement of environmental laws. Citizen suit provisions within environmental statutes typically provide that “any person” may bring an action against “any person” for the violation of a permit, standard regulation condition requirement, prohibition, order, or for any condition which may present an imminent and substantial endangerment to the health of the environment." (including aesthetic violations) "The injury suffered can be aesthetic, conservational, recreational, or physical."
The EPA can block a citizen suit by starting an enforcement action.
A three day response leads me to believe it was a neighbor.