In Wetlands Case, Sacketts Oppose Conservation Groups’ Supreme Court Brief

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In Wetlands Case, Sacketts Oppose Conservation Groups’ Supreme Court Brief

On Monday, the U.S. Supreme Court will hear oral arguments in the case of Priest Lake residents Mike and Chantell Sackett.  We’ve written about this complicated wetlands case before. The Sacketts are suing the EPA over a wetland determination on their property, and that a compliance order issued by EPA in the case should be immediately reviewable in a Court.

In support of the Sacketts’ position, some 13 parties filed “friend of the court” briefs to expand on the Sacketts’ arguments, including heavyweights like the Farm Bureau, U.S. Chamber of Commerce, the National Association of Manufacturers, the National Association of Home Builders and General Electric.  However, when KEA joined with NRDC, Waterkeeper Alliance, and several other Idaho conservation groups to file a similar brief in support of the EPA, the Sacketts filed a rare objection. The Supreme Court will likely decide whether or not to allow our brief in the next several days.

At issue is the fact that the scenario the Sacketts outline for the Court does not entirely comport to what actually happened. Documents obtained by environmental groups – including a timeline written by Chantell Sackett herself – paint an entirely different picture.

The Sacketts, who argue to the Court that they were blindsided by an EPA Compliance Order regarding the existence of wetlands on their property, fail to acknowledge to the Court that the EPA and their own consultant told them about the wetlands months earlier. (Much later, the Sacketts evidently hired another consultant more to their liking.) The Sacketts who argue about the heavy hand of the EPA fail to acknowledge to the Court that they had ample opportunity to work with EPA to resolve the issues for almost six months prior to receiving the compliance order and for months afterward. The Sacketts who claim that the wetlands permitting process and risk of fines would be financially devastating and would therefore violate their due process rights, fail to mention that an “after the fact” permit would have been very easy and inexpensive to obtain and was offered by the Corps of Engineers as an option.

The Sacketts do not dispute any of these facts. They do, however, in their opposition to our filing, try to explain them away and diminish their significance to the narrow procedural case before the Court.

Indeed, the Supreme Court may decide that the issue of whether the Sacketts’ story holds up or not is the Supreme Court’s problem, and is rather the Sackett’s problem for a later date. The theoretical issues identified by the Supreme Court in granting their review remain the same. The problem, we believe, is that the Supreme Court doesn’t decide theoretical issues, they decide actual cases. We simply believe they should have all the information in this actual case.  We’ll let you know if the Court lets us give our version of the story.

 

By | 2012-01-05T18:41:09+00:00 January 3rd, 2012|Water|11 Comments

11 Comments

  1. […] and the legal and environmental pundits have been previewing the case. The Court has yet to rule on whether a brief by conservation groups will be filed, but a ruling could come as early as tomorrow. In the mean time, here are some of the more […]

  2. […] morning, the U.S. Supreme Court agreed to allow filing of an amicus brief in the Sackett v. EPA case which will be argued at the Court on Monday morning. (The Supreme Court’s order (pdf) is […]

  3. […] morning, the U.S. Supreme Court agreed to allow filing of an amicus brief in the Sackett v. EPA case which will be argued at the Court on Monday morning. (The Supreme Court’s order (pdf) is […]

  4. […] the legal and environmental pundits have been previewing the case. The Court has yet to rule on whether a brief by conservation groups will be filed, but a ruling could come as early as tomorrow. In the mean time, here are some of the more […]

  5. Coolhand January 9, 2012 at 3:14 pm - Reply

    Interestingly you seem to ignore the obvious. The property was not designated as a wetland to begin with. Hence any talk about going through a wetlands permit process is a non-sequitor. You can not, nor should you be required to get, a wetlands permit for property that is not actually officially designated a wetland.

    • Terry January 9, 2012 at 3:22 pm - Reply

      I’m not sure that this statement is correct — never mind “obvious” — and at some point all of it will come out in a courtroom, probably. According to the national wetlands survey by USFWS, part of the property is indeed designated a wetland. That’s not the end of the inquiry, but it’s certainly a start for proper due diligence.

  6. […] KEA joined several other conservation organizations in a brief to point out that the Sacketts had ample opportunity to work with EPA and the Corps of Engineers to avoid the compliance order, and unnecessary expense, had they chosen to do so. […]

  7. […] KEA joined several other conservation organizations in a brief to point out that the Sacketts had ample opportunity to work with EPA and the Corps of Engineers to avoid the compliance order, and unnecessary expense, had they chosen to do so. […]

  8. […] checking out his pieces titled “What The Priest Lake Wetland Case Is Actually About”, “In Wetlands Case, Sacketts Oppose Conservation Groups’ Supreme Court Brief” and “What We’re Reading – Sackett Wetland Case Preview Edition”  The New York […]

  9. […] In an opinion released this morning (pdf), Justice Scalia wrote for a unanimous court that Mike and Chantelle Sackett will get a day in court to challenge EPA’s wetlands compliance order. The Court ruled that the wording of the order itself made it a “final” decision by EPA, and thus subject to a Court’s review. The EPA had suggested that it is not final until the EPA goes to court to enforce the order. KEA was a party to a brief supporting the EPA position.  […]

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