Property Rights at Root of EPA Supreme Court Case

When the U.S. Supreme Court takes up a case called Sackett vs. EPA next week, NAR and a dozen other associations will be looking on with more than passing interest.

NAR is part of a group that has submitted a friend of the court brief to the Supreme Court arguing that the actions by the U.S. EPA violated the property rights and right of due process of Chantell and Mike Sackett of Priest Lake, Idaho. Although the Court will hear arguments on a the relatively narrow legal issue of due process and the wetlands appeals process, NAR believes that broader principles are at stake, including the overreaching regulatory authority of the EPA.

Four years ago the couple bought a piece of land of under an acre that sits squarely in a developed subdivision, with a sewer infrastructure already in place, overlooking Priest Lake in the Idaho panhandle. The couple secured local building permits and even received a verbal okay from the U.S. Army Corps of Engineers that the property, which has water on it periodically but isn’t adjacent to any standing body of water, is not a wetlands. But as soon as the Sacketts started to build their home, EPA officials, citing the agency’s authority under the Clean Water Act, ordered them to stop and restore the property to the way it was before they did any work on it.

They were also ordered to take other costly restoration and monitoring activities. Once these requirements were met, only then could they go through the wetlands permitting appeals process. What’s more, the EPA said it could impose a fine of up to $32,500 a day for every day they didn’t comply.

Although this sounds like a case of over-reach by the EPA, the issue before the Supreme Court only concerns whether the Sacketts have the right to challenge the EPA’s assertion that the property contains a wetlands. EPA says the Sacketts can’t challenge its assertion until after it files formal charges against the Sacketts for building on a wetlands, which it hasn’t done yet. And it won’t consider that question until the Sacketts first spend the money and take the time to restore the property to its previous state.

The Sacketts say the issue of whether the property is a wetlands is central to the dispute and needs to be  resolved in court now if they’re to get their proper due process rights.  NAR agrees, but the lower courts have sided with the EPA, saying regulatory agencies would be hamstrung in their ability to enforce their rules if parties like the Sacketts can chellenge them in court before they’ve taken formal regulatory action.

NAR will be monitoring the case closely when the court hears oral arguments on Monday, Jan. 9, because of its importance to the protection of private property rights.

Read the brief filed by NAR and the other associations.

Robert Freedman

Robert Freedman is director of multimedia communications for the NATIONAL ASSOCIATION OF REALTORS®. He can be reached at

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  1. Vivianne Rutkowski

    Americans need to wake up and put their foot down – this is almost a parody of life.

    What happened to the accountability by the public officials???
    Even IF the EPA has a case, it is the COUNTY that should be paying the fines because the COUNTY issued the building permits – the Sacketts were NOT building *illegally* on their land.

    This is ridiculous reaching a new level of ridiculousness – outrageous. Sheer terror by the government.

  2. The EPA, Army Corp State ENCON and the rest are Bullying property owners period. This self appointed divine right on the part of Lobbyist from every tree hugging organization which influences EPA, Army Corp, Encon has to stop. When lawyers run those agencies and enforce their rules rather then engineers then were screwing the constitution period. The agency needs restrictions on such authority they operate above the law with impunity. Again the public get screwed by these civil servants with impunity. Ccivil servants are another oxi moron. Modern day anarchist. what’s next burning books at the Library of Congress

  3. Absolutely Vivianne!
    This was in a developed neighborhood with an installed sewer system and a building permit was issued. If the EPA was truly interested in this piece of ground, they should have raised their concerns YEARS before the Sacketts ever purchased the lot. I’m sure the development had to go through many months of public hearings before the subdivision was approved, platted and recorded. Then it would take many more months for it to be developed with streets, sidewalks, water and sewer systems etc.
    This is not just a case about private property rights, but also about the asinine actions of the EPA, due process, and common sense!

  4. Dan

    I am wondering if previous posters are intimately acquainted with this case, or if they have only read Robert’s one page, clearly right leaning, article on the subject. The bottom line is that the EPA has a purpose which is constantly undermined by the likes of fox news, the US Chamber of Commerce, and other only-interested-in-money, wealth-preserving organizations. I do not have said intimate knowledge of this case, so how do I know if the EPA hadn’t become involved sooner? How long is “periodically” in terms of standing water, constituting a “wetlands”. The army corps of engineers are not concerned about environmental issues, which we are all well aware of (Katrina). The EPA however, is concerned, which is why they have authority on these matters. It will be interesting to see what comes to light in this case, but in the mean time, we as Americans should have the sensibility to hear all the facts before making “asinine” comments.

  5. Perry

    It’s time to open our eyes and see that the EPA is just another long arm of a questionable government and operating under the guise of the conservationist. What better way for our government to gain control of our free land without having to pay a dime. Look at what is happening in Florida. There are property owners all around who have lost their private property rights, due to wetlands and other such nonsense. What do you think will be going on with our land once we’re all forced to live in controlled areas? Do we really believe that it will be kept for wildlife conservation? Think and open your eyes to the real truth. NAR needs to become involved in abolishing UN Agenda 21 and fighting the good fight against the EPA and all such government agencies.

  6. irina

    My question is, did whoever put in Kalispell Road need a wetlands permit to do so ?

    If NO, then the Sacketts should not need a permit either.

    If YES, then that information should have become part of the permanent platting record, so it would be obvious that there was a problem with that property.

  7. Dan

    The Real Truth is that WE ARE the EPA. Half of Florida is a wetland, with sensitive habitat. That is not nonsense. Native Americans enjoyed and lived on this land in symbiosis for thousands of years. It wasn’t until we came and destroyed for only hundreds of years before it became clear that we need to protect the environment. Most Americans understand this fact. Let me be clear though, I am not defending the EPA’s action in this case, only defending what the EPA stands for: Environmental Protection. Without protections against greed and recklessness, my daughter will not have the same beautiful world to live in that we do.

  8. Glen

    Dan and any other EPA supporter needs to wake up and smell the coffee. If the EPA ever did anything valuable (like prevent the development from being in a wetland in the first place) it would be a miracle. This, like every other 3 letter government organization is useless and waste taxpayers money. They go after easy targets of unsuspecting and well meaning individuals in a David and Goliath mentality. They defend the real polluters and environmental destruction and go after the little guy just to make a name for themselves and appear to be doing something. Like going after bar b que grills to fight pollution while corporations like Monsanto are given the legal avenues to pollute the environment at will and are protected …..even from prosecution in most cases. The EPA …indeed. Saving one acre (after the fact) at great harm to an individual who appears to have followed the proper course is an outrage.

  9. sansu Jung

    The truth is that land swiftly returns to its previous state, after inhabitants have vacated it. The earth itself is self healing. Man believes himself to be so huge, so effective, but he really has a very, very small effect on the environment. The forces of nature (0r of God) are so much greater than what man does, and have so much more enormous effect, that what man does can’t even be compared. As the human race grows, so grows the knowledge and ability to feed and breathe. If people would concern themselves with being as clean on the inside of their hearts, as they are protective of the earth, this earth would truly be a better place. The EPA is a great huge beast and a subtle form of terrorism.

  10. I have to agree with Glen. It seems that EPA and other governmental agencies make a stand when it involves an individual but makes exceptions with a corporate entities. It seems more and more we are living in a “corporate America.” Also if in fact this piece of land happens to be located in a wetland why isn’t the development responsible for selling this without representing it was a wetland and why did every other governmental agency approve the build and who was it that notified the EPA about the potential wet land issue. I don’t know of EPA officials driving around looking for offenders. Who really does not want them building there.

  11. Jeff

    Dan,did you know that in the past, Florida has been both half as wide and twice as wide as it is today. When the Earth went through it’s last global warming period, the icecaps melted enough to cover about half of present day Florida and during the last iceage the reverse was the case.

  12. dba...vagabond trader

    How did these poor people come to the attention of these EPA thugs? Under an acre of land, unbelievable. Anyone who owns a bit of America should take notice and demand the EPA be reined in.

  13. Howard

    Dan and all you EPA lovers
    Come on
    Its just more big goverment that we do not need.
    The EPA is not your friend or mine.
    Wait until they come after you.

  14. Jim

    People- People- People
    EPA- is run by people.

    “We the people” still govern ourselves as our Constitution states.
    It has also been said by those who have yielded great power, that power itself corrupts and absolute power corrupts absolutely.

    The highest court in our land now has a sacred and devout duty as do the lawmakers of our nation, to correct oppression and yes even fight it regardless the form in which it may present itself. Indeed, before the question of law now before the court was first made into law by people who drafted, presented, and then voted the powers granted to our government into becoming law in our land.

    We the people, are still but stewards of this great land and owe an humble obligation to those individuals who gave their lives in selfless endeavor to secure peace and righteousness within our territories.

    Work now as one people to change laws and restrict over reaching power from within any law. Law itself has been proven on a global judicial scale following WWII to be wanting and illegitimate when it oppresses the people it is intended to benefit.

    This thing I know. Love. Against such, there is no law.

  15. Cindy

    There is another side to the story presented in the above article. Larry Levine wrote on January 6, 2012, that the Sacketts own expert told them the property was on wetlands & to hold off building on it until they obtained a permit from the Army Corp of Engineers, which the Sacketts chose not to. The case attracted the support, not only from NAR, but also from large corporations such as the American Petroleum Indtitute, the National Mining Association. It becomes a case of big industries supporting the Sacketts against the EPA, the agency that enforces the Clean Water Act to protect clean waterways and a healthy environment. Read Larry Levine’s full article: levine/ david_vs_goliath_–_or_ goliath.html

  16. Tim

    This is what happens when government gets to big, it is obvious they have way to much time on their hands and to many people. they need to layoff some people to cut costs and save some of the tax money we the people give them. Wake up America!