Sackett Facts and Circumstances
An opinion piece published in the Spokesman-Review sheds some additional light on the Sackett case pending before the U.S. Supreme Court.
As we’ve written before, the Supreme Court is only deciding a procedural point about how and when the Sacketts can challenge an EPA wetlands determination. Even if the Sacketts win their Supreme Court case, they could still lose their challenge when both sides put their facts before a judge. Indeed, based on the Spokesman-Review piece, the Sacketts may face an uphill battle.
In the Spokesman-Review, Michael Doherty, a retired biologist and wetland regulator with the Corps of Engineers writes fairly directly:
“I drove by the property in question for decades and know it is a wetland. It was frequently covered with standing water, soils were saturated, and it was covered with plants common to wetlands in the area. These are the three criteria used to identify wetlands under federal guidelines, and the property meets them all.
Beyond the science, an average person would see it is located at the bottom end of a large drainage and is very wet. Yet they claim the lot is not a wetland. So why did they need to haul fill with dump trucks for three days to prepare it for construction of their house?
The $23,000 price for two-thirds of an acre lot located less than 100 yards from the shore of Priest Lake speaks volumes. The typical price of vacant Priest Lake property is much higher and points to the substandard nature of the property as a home site. As excavation contractors, the Sacketts were amply equipped to fill the lot and prepare it for building.”
The wetland shows up in the USFWS wetland inventory. The Sacketts’ own consultant said it was likely a wetland. (Until they changed consultants, of course.) Just because the property contains a wetland doesn’t necessarily mean that the EPA and the Corps of Engineers have jurisdiction. But these facts and circumstances are obviously not very helpful to the Sacketts when the case comes back to Idaho after its trip to Washington, DC.
“Though portrayed as such, this is not a case of the Sacketts versus a big government fabricating a case against them. The EPA does not fabricate cases because there are wetland violations all around us, and only the most egregious are pursued. The facts of any case are analyzed and reviewed by managers and attorneys and, if weak, it does not go forward to any enforcement action, let alone to administrative orders with possible legal action. The analysis includes impact to private property rights as well because taking private property without just compensation is illegal and the government looks very carefully at this issue before making any regulatory decisions.”
Indeed, as the adage goes: When the law is not on your side, you argue the facts; when the facts are not on your side, you argue the law. The Sacketts have been arguing the law fairly effectively. As this piece points out however, the facts have yet to be heard.
So Mr. Doherty drove by the property in question — for decades no less —
and ‘knew’ it was a wetland. (Interesting that he doesn’t claim ‘jurisdictional’).
He worked for the ACOE. Surely he must have been aware that the area was
being subdivided into home sites. If the ACOE wanted to protect that particular
property, why weren’t they proactive about it ? Clearly whoever did the
subdividing was not required to put any notes regarding potentially jurisdictional
properties on the platting paperwork. The onus should not fall entirely on the
property owner.
Again, a wetland and a jurisdictional wetland are not the same thing. Kalispell
road, which apparently is what Mr. Doherty utilized for his ‘drive-bys’, must
have been built before wetlands became an issue. Clearly, he had no problem
whatsoever with using this road which was ‘illegally’ built over wetlands. (And
which, apparently, has not in fact caused any problems or contributed to
polluting Priest Lake.) There are no culverts under Kalispell road at this site,
and from a legal perspective the Sackett property may very well be ‘isolated’
wetlands.
If you’re so worried about the lake being polluted, why are powerboats allowed on it ?
That seems a much more likely vector than the Sackett’s property, given that they
had all the necessary local permits, water/sewer hookup, etc.
I can’t address any of your factual assumptions or speculation, but I suspect it will all come out in a courtroom someday. The issue of whether the wetlands are jurisdictional or not jurisdictional will, undoubtedly, have experts and testimony on both sides. The issues of power-boating, subdivision platting, and unrelated local permitting are not going to be relevant.