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Couple fight EPA ruling

by Nick Ivie
| November 17, 2010 8:00 PM

PRIEST LAKE - A Priest Lake couple is seeking their day in court after an Environmental Protection Agency compliance order stopped construction at their Kalispell Bay Road property, finding the .63-acre parcel to be a wetland and the earth-moving work a violation of the Clean Water Act.

Michael and Chantell Sackett of Spokane have formally petitioned for a rehearing before the full Ninth U.S. Circuit Court of Appeals.

The petition comes after requests for a hearing to dispute the findings were denied by the EPA and a suit with the district court was dismissed.

"In effect, the government is imposing a massive admission charge on the Sacketts' right to go to court and challenge the feds' claim that it controls their property, said attorney Damien Schiff of the Pacific Legal Foundation, a private property rights group which is representing the Sacketts pro bono. "The feds are imposing a massive price tag on justice. The Sacketts' fundamental right to defend their property rights in court is being treated as a privilege that has to be paid for at exorbitant rates.

"We contend it is flat-out unconstitutional, a violation of due process, to impose an astronomical price tag on the right to seek justice and defend property rights in court."

The couple has been battling to get their day in court since they were hit with a compliance order in November 2007, which classified their property as wetlands. The Sacketts were required to remove the fill material, replant and maintain a three-year monitoring program during which the property could not be touched.

The couple, however, deny that their property is wetlands or that the EPA has authority over it, said Schiff. Instead, the property has no standing water or any continuously flowing water connection between the Sacketts' land and Priest Lake.

The Sacketts are prepared to appeal all the way to the U.S. Supreme Court, if necessary, to "vindicate their right to have their day in court."

Failure to comply with the compliance order can net civil penalties of up to $32,500 per day or administrative penalties of up to $11,000 per day.

The decision to seek a ruling before the full court follows a September decision by a three-judge panel of the Ninth Circuit that ruled the couple can't get a judicial review unless they first apply for a federal wetlands permit.

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