Institute for Justice Ask U.S. Supreme Court to Allow Property Owners to Challenge Government Orders

J. Justin Wilson
J. Justin Wilson · October 3, 2011

Arlington, Va.—Michael and Chantell Sackett are owners of a half-acre lot near Priest Lake, Idaho, which they bought to build a single family home. But after they were granted a permit and began construction, the U.S. Environmental Protection Agency (EPA) swooped in and demanded a halt to construction, issuing an “administrative compliance order” demanding the Sacketts restore the lot to its previous condition and apply for a permit from Army Corps of Engineers to develop a “wetland.”

The Sacketts have been threatened with fines of up to $37,500 per day, and criminal charges for willful violation of the order. An application for a permit from the Army Corps can take up to two years to process and can cost more than a quarter of a million dollars.

The Sacketts took their fight through the federal trial court and the U.S Ninth Circuit Court of Appeals; both ruled they can not challenge such orders in court, even though the EPA doesn’t need to show it has the proper authority and evidence to issue compliance orders and threaten property owners with penalties for noncompliance. Now their case will appear before the U.S. Supreme Court.

On Friday, September 30, the Institute for Justice (IJ) filed a friend-of-the-court brief to the Supreme Court urging the Court to allow property owners to challenge—immediately and in federal court—orders issued by government agencies that prevent the use of private property and threaten severe financial and even criminal penalties.

IJ Attorney William Maurer, an author of the brief, said “A system where the government orders a citizen to do something and provides only burdensome and expensive alternatives to compliance with no possible judicial review for years is not due process and has no place in our Constitutional order.”

“When the government orders you to stop making reasonable use of your property under threat of penalty, the Constitution guarantees you the right to challenge that order at a meaningful time in a court of law,” added IJ attorney Larry Salzman, a co-author of the brief.

The brief was filed in the case of Sackett v. EPA, which will be argued and decided this term.