This column by ACRU Senior Legal Analyst Ken Klukowski was published January 10, 2012 on The Washington Examiner website.

Oral arguments were heard Monday in an Idaho case that prompted Supreme Court Justice Samuel Alito to ask if “most ordinary homeowners would say this kind of thing can’t happen in the United States?”

Alito’s unusual query came as the court heard from advocates on both sides of Sackett v. Environmental Protection Agency, which pits the federal Leviathan against an Idaho couple trying to build a house on land they own.

Alito continued with a perfect summary of the absurdity of this case:

“You start to build the house and then you get an order from the EPA which says you have filled in wetlands, so you can’t build your house; remove the fill, put in all kinds of plants; and now you have to let us on your premises whenever we want. You have to turn over all sorts of documents, and, for every day that you don’t do this, you are accumulating a potential fine of [$37,500].”

Then Alito added a final observation that went to the heart of the issue presented by the case: “And by the way, there is no way you can go to court to challenge our determination that this is a wetland until such time as we choose to sue you.”

When Chantell and Michael Sackett sought to build their house, the EPA sent them a compliance order saying their landlocked plot might be wetlands under the Clean Water Act. Construction on such lands requires permits issued by the Army Corps of Engineers.

Then, the EPA ordered the Sacketts to restore their land to its natural condition, including a command that they plant specified types of trees. Failure to obey the order carried fines of up to $37,500 per day. (That’s $13 million per year.)

Never mind that the EPA had never determined the Sacketts’ property contains wetlands. The EPA merely said it might be wetlands. The land’s status has been in limbo for over four years, with no end in sight.

Justice Elena Kagan asked why the Sacketts didn’t apply for a permit before touching their lot. Putting aside what she described as the “weirdness” of applying for a permit the applicant believes is unneeded, Kagan asked why “couldn’t [Sackett] have gotten the legal determination that you wanted through that process?”

Of course anyone could think to contact the EPA and the Army Corps of Engineers in Washington, D.C., before they ever touch plants, water or air. But that’s precisely the contrast between a free country and an all-encompassing governmental Leviathan.

You may avoid the EPA’s bone-crushing penalties by asking it for written permission before you build a barn or patio deck, put in a pool, or build a campfire.

But then asking the central government’s permission to use your own land is anathema to limited government and would appall the Founders who adopted our Constitution.

All the Sacketts wanted was the right to sue to challenge the EPA’s order. The issue before the Court is thus whether a compliance order is subject to judicial review before its enforcement by the issuing agency (which could be years later).

The Sacketts’ lawyer Damien Schiff stressed that the couple weren’t demanding that the EPA ordered be nullified, only that they be able to challenge it in court.

Even liberal Justice Stephen Breyer seemed sympathetic to that request. Expect a decision by June.