Brandon Middleton: Sackett v. EPA: The real rest of the story

Last Thursday, E&E reporter Lawrence Hurley published this story [noted here] on PLF’s landmark victory in Sackett v. EPA.  The story is titled “Justice was blind to some facts in Idaho wetlands case,” and the impression one gets from reading it is that Mike and Chantell Sackett should not be viewed as sympathetically as common sense would suggest.

In the story, Hurley writes that “some pertinent information that might have changed perceptions about the Sacketts was not in the official record upon which the Supreme Court is required to rely.”

The problem, however, is that Hurley has fallen into a trap the Natural Resources Defense Council set in order to distract the Supreme Court from the due process implications that were at issue in Sackett.  Revisiting NRDC’s failed attempt to confuse the Supreme Court and the public, Hurley writes in his story that the Sacketts may not actually be “innocent victims of agency overreach” and that “there were plenty of opportunities for the dispute to be resolved without the need of Supreme Court intervention”:

Government attorney Malcom Stewart tried to bring up some of NRDC’s findings but was sharply cut off by Chief Justice John Roberts.

“If they weren’t in the record, I don’t want to hear about them,” Roberts said. “You appreciate that rule, that we don’t consider things that aren’t in the record?”

Stewart had little choice but to concede that point.

The NRDC documents do indeed show the Sacketts in a different light, although whether that would have influenced what the Supreme Court decided is impossible to say.

The documents indicate that the Sacketts knew early on that their property probably was a wetland. An expert they hired said so in May 2007, just after EPA first visited the property but months before the agency issued the compliance order.

Furthermore, on May 23, 2007, the Army Corps gave the Sacketts a permit application and asked them to complete it.

Chantell Sackett’s own notes also suggest she recognized the land was a wetland, even if she contested EPA’s authority to regulate it.

“There appears to be some tension between these facts and petitioners’ claims,” NRDC lawyers said in the brief.

Unfortunately, this account omits significant items relating to the Sacketts’ case.  It is particularly problematic given that it relies on the not-so-trustworthy NRDC for what Chantell Sackett was thinking in the weeks and months preceding EPA’s draconian compliance order, whereas Chantell’s own response to NRDC’s misplaced filing only confirms the absurdity of the Sacketts’ ordeal.

Read more at the Pacific Legal Foundation

One response to “Brandon Middleton: Sackett v. EPA: The real rest of the story

  1. What was the basis for the Corps to give the Sacketts a permit application? Was it the National Wetland Inventory map that has a 5 percent chance of being right or had they put people on the ground to obtain a preliminary finding the site was a potential wetland?

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