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  • A Defensive Victory Against Administrative Tyranny

    Posted by David Foster on May 31st, 2012 (All posts by )

    In 2005, Mike and Chantell Sackett purchased a small lot in Iowa (.63 acres) for $23,000. When they began to lay gravel on the land, which is located in a residential neighborhood, they were hit by an EPA compliance order informing them that the property had been designated a wetland under the Clean Water Act. They were ordered to stop grading their property and were told that they would face fines of up to $75,000 per day if they did not return the parcel to its original state. When the Sacketts attempted to contest the order, the agency denied their request for a hearing.

    The case went to the Supreme Court, and in March, Justice Antonin Scalia, writing for the court, said that the Sacketts are entitled to appeal the EPA order, rejecting the agency’s claims to the contrary. “The [law’s] presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all,” Scalia said in the decision. “And there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review — even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.”

    Scalia also noted that the Sacketts’ property bore little resemblance to any popular conception of a wetland, protected or not.

    “The EPA used bullying and threats of terrifying fines, and has made our life hell for the past five years,” said Mr. Sackett. “As this nightmare went on, we rubbed our eyes and started to wonder if we were living in some totalitarian country. Now the Supreme Court has come to our rescue and reminded the EPA — and everyone – that this is still America.”

    Read this post…the personal cost of big-government thuggery…for more on the Sacketts’ ordeal.


    This is an important victory (although the Sacketts are not off the hook yet–the Court’s ruling was merely that they be allowed to challenge the EPA’s order, not that the EPA position be negated). But it is only a defensive victory, and the swamping envelopment of administrative tyranny against American citizens continues on many fronts. See for example this post: we are no longer governed, but we are ruled, which cites the case of an 85-year-old man whose water-purification-device business is being ruined by the DEA and its state equivalents, and a severely injured woman who was arrested while trying to pick up her prescribed painkiller.

    Government is not reason, it is not eloquence, it is force; like fire, a troublesome servant and a fearful master. Never for a moment should it be left to irresponsible action.

    The above is often attributed to George Washington: while he was probably not really the source of the quote it remains a true and important statement nonetheless. Living with what has historically been a fairly benign government, Americans have too often tended to forget the inherent dangers of overweening government power. There is a serious danger that we’re going to find out the hard way. Don’t think that what happened to the Sacketts, and to the other individuals mentioned in the other link, can’t also happen to you.

    Monday was Memorial Day. People have fought in America’s military forces for a variety of reasons, but I’m confident that very few of them were fighting so that government officials could engage in the kind of bullying that was done to the Sacketts and continues to be done to Bob Wallace and Marjorie Ottenberg.

    The EPA is under the President’s control. If we had a decent and competent administration, the case of the Sacketts would have almost certainly been resolved long before it had to be brought to the Supreme Court level. Should Obama win a second term, you can expect to see increasing numbers of Americans in every walk of life–maybe even yourself–crushed beneath the wheel of administrative tyranny.

    Individual court victories such as Sackett v EPA are important, but true safety can be found only by breaking the back of the political philosophy which calls for unlimited and unending expansion in government’s role and powers.

     

    9 Responses to “A Defensive Victory Against Administrative Tyranny”

    1. Dan from Madison Says:

      What a shock – the 9th circuit denied the Sackett’s appeal originally.

    2. Jason in LA Says:

      If it was a split decision maybe I could find validity in the 9th circuit’s appeal rejection. But the supreme court was unanimous.

    3. Bill Brandt Says:

      In CA in addition to the Federal EPA we have a state EPA and if that isn’t odious enough, a CA Coastal Commission. The CC, enacted by an initiative (vote by the people) started out, as they all do, with good intentions and morphed into an overbearing restrictive bureaucracy.

      2 small examples (while I am working)

      Years ago I am looking at 2 lots in Bodega Bay – both hilltop lots, same size, adjacent, same view.

      One is $50,000 while the other is $450,000.

      I ask people “why the difference” and even non-politically-savvy Californians can’t answer.

      One had permission from the CC to build while the other owner might have to wait 10-20 years to get that permission, all the while, of course, paying taxes on it.

      The other example is a family that owns 1,000 acres of coastal land – and the CC is making them – because they are deemed “wetlands” used for nothing but cattle grazing.

      Well back to work – will read the entire article tonight.

    4. tyouth Says:

      If we had a new-born I’d name hem “Scalia”. Well, the middle name anyway.

    5. Mike_K Says:

      In 1979, I lived in a house on the bluff near Dana Point, in Orange County. It had been a wet winter and one morning in February, I woke up to find my back yard gone. It was at the bottom of a 200 foot bluff. I had bought the house the year before and had a geologist friend and a contractor friend, both of whom were very experienced with local conditions, go over it first. The house had been there since the 1930s. Well, when the slide happened, I went back to them and we decided to fix it. The house was now 7 feet from the cliff.

      My first task was to get the Coastal Commission to allow me to fix it. Interestingly, my next door neighbor opposed my request. I never did figure out why. Anyway, I finally got the OK and proceeded, including having the house on house jacks at the ocean side for a year. The project involved 13 caissons drilled into the bedrock layer 30 feet down. The caissons were 3 feet in diameter and the centers 3 feet apart. The neighbor who had opposed me at the Commission had the nerve to approach me and ask me to “put a couple of caissons in front of his property.” The neighbor on the other side, who had only a tiny cottage on his lot gave permission to use his lot for access, then changed his mind. As a result I had to tear off one side of the house to get access for trucks and bulldozers.

      The project took a year and I was never comfortable with the house after that, A few years later, I sold it, which was a big mistake. It was for sale for a couple of million more than I sold it for four years ago. We found all sorts of illegal construction when we excavated under the house to fix it. The Commission was not much of an obstacle but the slide was a major one and there was lots of publicity.

    6. Bill Brandt Says:

      Mike_K

      That story does not surprise me in the least.

      I have a friend along the Sacramento River, and she simply wanted to remodel her swimming pool.

      She told me that she had to get permission from 3 different bureaucracies (Coastal Commission wasn’t 1 but the US Army Corp of Engineers was )

      Anyway I told her ‘why not just do it and forget them – but she said they actually periodically review satellite photos to check for “illegal”
      modifications.

      Your story reminds me of another house in Vero Beach FL. The tides (perhaps with an occasional hurricane over the decades) turned a nice back yard into maybe a 7′ wide strip of lawn. But as far as I know no problems reenforcing it.

    7. elf Says:

      Think it gets fixed with words or elections?

    8. Bill Brandt Says:

      @Elf – I think it would take a very dedicated Congress (not to mention a president) – think of the forces aligned against you

      I like the description of a militant environmentalist – a watermelon.

      Green on the outside and red on the inside.

    9. David Foster Says:

      EPA operating drones over American farms in the Midwest:

      http://pjmedia.com/tatler/2012/06/01/epa-using-spy-drones-to-fly-over-midwestern-farms/