Few people have the resources to outlast EPA in court, but a recent Supreme Court ruling gives landowners their chance to be heard.
While the national news coverage has centered around the lead up to, and beginning of, arguments before the Supreme Court regarding Obama Care, there was a largely unnoticed decision last week that can only be considered a major victory for agriculture and landowners.
The court case surrounded some homeowners in Idaho who purchased a property and began earthmoving, only to have the Environmental Protection Agency (EPA) come in after the fact, declare wetlands on the property and order construction stopped. EPA ordered that the property owners remove fill placed on their property and restore the area to its original condition or face penalties of $37,500/day. The property owners hired their own consultant to show the areas they filled were not regulated wetlands but EPA rejected their request for an informal hearing.
The problem is that the compliance order was not considered to be a final act by the EPA and thus the courts had no jurisdiction; this has become a major tactic of depriving landowners of the use of their land without having to provide due process and give landowners their day in court. In Sackett vs. EPA, the court ruled unanimously and harshly criticized EPA for this tactic. The ruling didn’t find that wetlands don’t exist on the property, but gave the landowners their day in court to challenge EPA’s exercise of jurisdiction under the Clean Water Act.
Few people have the resources to outlast a powerful government agency like EPA, but at least landowners now can have their day in court, and can’t be caught up in no man’s land.