January 23, 2012

Due Process?

Guest column submitted by U.S. Senator Mike Crapo

The Fifth Amendment to our Constitution states, "No person shall…be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation." 

Idahoans Mike and Chantell Sackett's case, Sackett v. the U.S. Environmental Protection Agency (EPA), which was heard by the U.S. Supreme Court on January 9, shines a spotlight on the issue of our constitutional rights to due process.  I feel deeply for the Sacketts, who have expended considerable time and resources pursuing this case and defending their rights, and welcome the Court's review.  The Supreme Court's willingness to provide clarity on this issue has important implications for all Americans.

Given the deserved local and national attention, many are familiar with the details of the case.  After Mike and Chantell Sackett obtained the proper permits from the county and began laying a foundation for their dream home on Priest Lake, EPA officials issued an "administrative compliance order" (ACO).  The ACO ordered the Sacketts to cease construction, remove the foundation and restore the property because it is a wetland, or face up to $37,000 a day in fines.  If the recipient of an ACO disagrees with the legal conclusions on which the ACO is based, the recipient can either wait to challenge the order later when the EPA brings an enforcement action, but face possible large civil penalties if the challenge fails, or comply, sometimes at substantial cost, even though they disagree with it and the EPA may be wrong.

Faced with this dilemma, the Sacketts requested a hearing to review whether their land was a wetland, but the EPA denied the request.  Seeing no other way out, the Sacketts sued the EPA.  After five years and millions of dollars of possible fines, the U.S. Supreme Court is expected to make a decision in Sackett v. EPA by June 2012. 

The court is considering whether the EPA violated the Sacketts' Fifth Amendment rights to Due Process when it declined their request for judicial review of the ACO.  The EPA argues that the Sacketts do not have the right to challenge this decision in court until it brings an enforcement action.

The Sacketts, on the other hand, argue that they have the right to contest the ACO in court before the EPA can bring an enforcement action against them.     

The EPA issues more than 1,000 ACOs per year.  Due to the frequent use of ACOs, experts concluded that the effects from the Court's decision in Sackett may go far beyond the Clean Water Act (CWA).  These impacts can reach beyond the Sacketts and Jack Barron, another Idahoan facing similar difficulty, and affect others faced with ACOs. 

Like many of my colleagues, I have been concerned with EPA's expansive interpretation of its enforcement authority under the CWA.  Its use of administrative tools like ACOs is an example of how it has expanded its authorities under the CWA beyond what was conceived by Congress.  As I have said on many other occasions, this is what happens when an over-zealous federal agency would rather force compliance than give any consideration to private property rights, individual rights, basic decency or common sense.  On February 28, at my request, the Senate and House Western Caucuses will hold a hearing to investigate the impact of excessive and heavy-handed enforcement of environmental policies on property rights and jobs in the West. 

The Sackett's situation is a glaring example of federal government overreach.  Like many Idahoans, I will continue to watch this case closely, and hope for a just ruling for the Sacketts that protects our constitutional rights. 

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