Property Rights on SCOTUS Docket

On the first Monday this October, the opening day of the U.S. Supreme Court’s next session, the high court will hear oral argument in Sackett v. Environmental Protection Agency. It’s 15 years coming—a long time for unelected, unbridled bureaucrats to have denied private property owners from using their own property.


EPA bureaucrats have asserted that the Clean Water Act’s “navigable waters” and “waters of the United States” (WOTUS) regulations that EPA bureaucrats wrote give them the power to take private property without just compensation.


Thus, the Sacketts haven’t been free to develop, build on or use their plot of dry land in Idaho because the EPA decreed it to be a wetland—despite the absence of surface water. Instead, they’ve been at the mercy of one of the many police-prosecutor-judge-and-jury tentacles of the Administrative State.


CPR wrote about this case this past spring, and we joined the Atlantic Legal Foundation’s amicus brief in support of the Sacketts’ case.


The land owners have fought the EPA and its partner in regulatory overreach, the Army Corps of Engineers. The owners even won in the U.S. Supreme Court in 2012. But that didn’t stop the theft by regulation-run-amok.


The court will consider “the fundamental question . . . whether Mike and Chantell Sackett need permission from the EPA to build their family home.” Their case is being argued by the Pacific Legal Foundation.


This isn’t a rare situation. Government regulatory agencies, such as the EPA and Army Corps, routinely “take” private property by regulatory fiat. Such federal agencies appear in violation of the Fifth Amendment, which prohibits the government from taking property without compensating the owners of that property at a “just” level.


Even more nefarious is that these bureaucratic fiefdoms impose their wills in ways that deprive property owners of due process and from both using their property and enjoying the fruits of their labors as well as from obtaining compensation for the effective loss of their property to the government for its “public” purposes. And what about all the lost time and lost economic gains?


There’s reason for hope that the Sacketts will reclaim the property rights to the property the EPA has unjustly taken from them. Earlier this year, the Supreme Court ruled in West Virginia v. EPA that the same agency overstepped its statutory authority under the Clean Air Act.


Many regard that opinion as a logical precursor to further restraints against federal agencies’ acting beyond the plain authority in statute. Sackett v. EPA looks comparable in terms of regulatory action that exceeds the Clean Water Act.


A favorable decision that effectively strengthens private property rights by constraining regulatory conduct here could be a game-changer in other areas of law and other agencies’ jurisdictions.


Lord willing and the creek don’t rise, the Sacketts will receive a semblance of justice and, at last, the use of their undeveloped plot of land that’s currently off limits by government diktat. And all of America gets relief from arbitrary, capricious regulatory tyranny.

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