Jan 09, 2012
Property rights, EPA battle reaches Supreme Court
09 Jan 2012
Posted by Andrew Kantor
NAR and a dozen other associations filed a friend of the court brief with the Supreme Court in a case that could have wide-ranging effects on property rights across the country.
At issue is this: In 2007, Chantell and Mike Sackett of Priest Lake, Idaho, bought a small piece of land — less than an acre — within an existing subdivision near the eponymous lake. The parcel only occasionally has water on it, and while you can see the lake from it, it’s not actually adjacent.
The couple secured local building permits and even checked with the U.S. Army Corp of Engineers to confirm that it wasn’t a wetlands. (It wasn’t.) They started to build a home.
But then then the Environmental Protection Agency stepped in and told them to stop, saying that the land was indeed a wetlands. The Sacketts had to return the property to its original condition (costly), and then take a variety of steps to monitor the property (costlier).
The Sacketts challenged the determination that their property was a wetlands. Sure thing, the EPA said, but only when A) they go through an official EPA permitting process (after first restoring the land to its original condition), or B) the EPA files formal charges.
Until either of those things happens, though, the Sacketts can’t challenge the EPA’s wetlands ruling.
The Sacketts — and NAR — disagree. They want that wetlands determination first, because that’s central to the issue. By EPA’s logic, everyone would have to go through a formal (and expensive) permitting process just in case the EPA might decide they’re on a wetlands.
But the EPA says (and lower courts agreed) that regulatory agencies couldn’t do their jobs if every determination they made could be questioned in court — they would spend their time defending every regulatory action they took.
So there are some broad issues at play here — the ability for regulator agencies to do their jobs, of course, but also the right of property owners not to have to get an EPA permit for any construction that might be close to water. In terms of the Supreme Court, the issue is not about what the EPA did, but whether (and when) someone (the Sacketts) can challenge the EPA’s assertion (that the property contains a wetlands).
Oral arguments started Jan. 9, and NAR — and we — will keep you up to date on what’s happening.