High court weighs high-profile case over wetlands, EPA fines

WASHINGTON -- In 2007, Chantell and Michael Sackett began filling in land they had bought near Priest Lake in Idaho with dirt and rock so they could build a house.

Soon after, they received an Environmental Protection Agency order saying they were on protected wetlands and had violated the Clean Water Act by not first obtaining a permit. The Sacketts, who say they did not know their property was under such designation, tried to challenge EPA's finding that they were discharging material into a regulated wetlands.

The EPA refused a hearing. So, as their lawyer argued at the U.S. Supreme Court on Monday, the couple could not build their house and faced tens of thousands of dollars in fines if they failed to remove the dirt and restore their property to its original condition.

And they had no way to challenge the order in court.

"If you related the facts of this case as they come to us to an ordinary homeowner," Justice Samuel Alito told Assistant U.S. Solicitor General Malcolm Stewart, representing the EPA, "don't you think most ordinary homeowners would say this kind of thing can't happen in the United States?"

"You buy property to build a house," Alito continued. "You think maybe there is a little drainage problem in part of your lot, so you start to build the house and then you get an order from the EPA which says: You have filled in wetlands, so you can't build your house; remove the fill, put in all kinds of plants … and for every day that you don't do all this you are accumulating a potential fine of $75,000."

Chief Justice John Roberts similarly pointed up the dilemma of the property owners by bluntly asking, "What would you do, Mr. Stewart, if you received this compliance order? You don't think your property has wetlands on it and you get this compliance order from the EPA."

Stewart seemed at a loss for an answer, then said, "I think at that stage your options would be limited. You could apply for an after-the-fact permit."

To which, Roberts shot back, "You wouldn't do that, right? You know you will never get an after-the-fact permit if the EPA has sent you a compliance order saying you've got wetlands."

Stewart also said, responding to Alito's concern, that the usual EPA practice is to inform property owners at an earlier stage that they might be on wetlands and vulnerable to a violation. He said it was not clear whether that practice was followed in the Sacketts' case.

Stewart argued that property owners can get into court at a later stage of the process, when the EPA seeks to enforce an order.

A majority of the justices appeared ready Monday to side with the Sacketts and require a hearing at an earlier phase, when someone seeks to challenge a compliance order and has not yet been subject to fines.

Even Justice Stephen Breyer, who voiced concerns about the importance of the EPA using its expertise to protect wetlands from pollution, observed, "Here, the person whom the order is directed against is being hurt a lot."

The case of Sackett v. EPA is being closely watched by environmental groups, such as the Natural Resources Defense Council, and business organizations, including the Chamber of Commerce.

At the Supreme Court, the overriding question is whether EPA's use of non-reviewable compliance orders violates the Sacketts' right to due process of law.