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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  1. Profile Photo Coolidge
    @FakeJohnJaneGalt

    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.

    • #31
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    @Astonishing

    Am I allowed to say this? “That’s one reason they invented the 2nd Amendment.”

    • #32
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    @DocJay

    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.

    • #33
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    @ultravires

    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.

    • #34
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    @CJBox

    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.

    • #35
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    @JosephLouderback

    The Sackett’s story should be on a dozen Romney commercials a week.   The left has used individual stories for years, while we haven’t.  We’ve been wrong; nothing resonates like a flesh-and-blood person being wronged by the government.

    • #36
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    @M1919A4

    I fall in with Messrs. Savage  

    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, 

    and Some Other Guy

    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 [sic.] of information.

    The only effective way to rein in this and other instances of administrative tyranny is to reverse the situation described by Dr. Savage and prohibit administrative regulations from taking effect unless and until they have received a majority vote of both houses of Congress following  a sixty or ninety day period allowed for comment from affected members of the public.  

    And, as Some Other Guy noted,  humans were responsible for this and the federal statutes ought to be amended to allow damages against them individually, if actual malice be proved to a jury.  Such a change might help in some of the prosecutions like those of Messrs. Black and Libby.

    • #37
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    @FakeJohnJaneGalt

    @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.

    • #38
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    @PConn

    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.

    • #39
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    @StevenPotter
    C.J. Box  So if you love freedom, sit back and prepare to become very angry.

    That’s an understatement.  And the bureaucrats wonder why people hold them in such low regard?

    • #40
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    @DanielSattelberger
    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. · 11 hours ago

    I’m pretty sure there have been actual suicides over this stuff.  As far as I can recall there are some examples in here.

    • #41
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    @BasilFawlty

    The “crucify” enforcement strategy on display.

    • #42
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    @Sandy

    Thanks very much for this post.  We need to spread the story far and wide. 

    • #43
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    @

    You wonder: for every story like this that you hear about, how many times has a government bureaucracy won by default because people either didn’t or couldn’t fight back?

    I hear Mitt Romney likes to fire people. I’d like to see him start with the 17,000 people who currently work for the EPA. That would save us over $1 billion a year on salaries alone.

    Then, while we’re on the “e’s”, let’s take a good hard look at the Education department.

    • #44
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    @Aodhan

    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.

    • #45
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    @TeeJaw
    Viator: 

    A three day response leads me to believe it was a neighbor. · 3 hours ago

    If that is what happened, and I don’t suppose we’ll ever know, but if that is even plausible, it’s darn scary because that’s a central aspect of totalitarian regimes and police states where everyone must be on guard at all times lest someone overhear something they say or see some innocent but politically incorrect thing they do and turn them into the secret police.  Within a short time they receive an official visit and their lives are turned upside down, or worse.

    There are not many 9-0 opinions on the Supreme Court so it sounds like this case scared even the 4 liberals on the Court. 

    Future CJ Box novels may come to resemble the works of Chekhov, Dostoyevsky, Gogol and Kafka.  The inability of the sacketts to get more than a business card from these bureaucrats for years is too much like the events endured by Joseph K.

    • #46
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    @CoolHand
    CJRun:

    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?

    This leads me to ask the obvious question.

    So what if the soil was wet?  Does that justify a $75k per day fine for placing dirt?

    You are free to argue in favor of bankrupting people over wet dirt, but I believe you are likely to find your audience somewhat less than receptive.

    • #47
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    @tabularasa

    I practiced administrative law for three decades. It’s a depressing area to practice in because the deck is stacked so much in favor of the agency (whether it’s the EPA or any one of many others).

    Fundamental reform would require the agency to bear the burden of proof in compliance actions, that in cases like the Sackett case the agency be required to pay attorney’s fees when it fails to meet that burden, that agency rulemaking power be circumscribed, and that such rules regularly sunset. One of the major problems in this area of law is that rules remain long after their original purpose has long been achieved–the result if a bizarre kind of Kabuki theater. Finally, courts must strictly scrutinize decisions in which agencies impose heavy fines or prevent landowners from using their property.

    Until these things happen, agencies will continue be the worst manifestations of mindless bureaucracy in action.

    • #48
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    @BasilFawlty

    Did the restrictions on building on the land the Sacketts purchased exist at the time of the sale?  If the restrictions were imposed by EPA after the purchase, then the Sacketts probably have a good chance of overturning the EPA’s findings and fines.  If the restrictions existed prior to the sale, then the Sacketts may wish to take legal action against the seller for selling them an unbuildable lot.

    • #49
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    @FakeJohnJaneGalt

    Considering the response time there is probably a neighbor that has inside pull with the agency. The neighbor most likely took exception with the Sacketts making changes on land they owned so they pulled some friendly agency strings to stop it. Once the agency got involved it will not back down since that would show weakness and set a precedent. Thus this thing has a life of its own and will not stop till the Sacketts are destroyed thus discouraging others from opposing the EPA in the future. I believe that there was an EPA official on record recently talking about crucifying companies / people to make a point. That is what this is about.

    • #50
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    @StevenDrexler

    Why doesn’t the local zoning / permitting authority have culpability in this? I assume the Sacketts properly secured (paid for!) a permit to build on their lot. Rather than the battle being: EPA vs a private citizen, it should be municipality, town, state of Idaho vs EPA. And the permitting process, followed in good faith, should constitute safe harbor.

    I’d like to see more state governors telling federal bureaucracies to take a hike. Assert muscular state sovereignty and refuse to submit to federal courts in matters clearly covered by the 10th amendment.

    • #51
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