Will Chantell and Michael Sackett Get Another Day in the Supreme Court?
Chantell and Michael Sackett bought a residential lot in Bonner County, Idaho over fifteen years ago. Their plan was to build a home, but things have not yet worked out that way.
While making initial construction preparations, the Sacketts received an Administrative Compliance Order from the U.S. Environmental Protection Agency, alleging the deposit of fill onto their property constituted an unlawful discharge of pollutants into the waters of the United States under the Clean Water Act (CWA). Part of the Sackett’s parcel contained wetlands, the EPA explained, and filling wetlands without a permit is prohibited. Failure to remedy the discharge, the EPA warned, could expose the Sacketts to penalties exceeding $40,000 per day.
When the Sacketts sought to challenge this determination, the EPA claimed the ACO was not subject to judicial review. This prompted a lengthy legal fight, ending with a unanimous 2012 Supreme Court opinion in the Sacketts’ favor. The Sacketts would be allowed to sue. [I wrote about the Sackett opinion and some of the broader issues it raises in this article for the Cato Supreme Court Review.]
Litigation over whether the Sacketts’ land contains wetlands subject to the CWA continued for several more years until, in 2020, the EPA withdrew the ACO, on the grounds that the agency had decided not to pursue the case “years ago,” but the agency did not alter its judgment that the the Sacketts’ land is subject to federal regulation under the CWA.
This was the state of play before the U.S. Court of Appeals for the Ninth Circuit, which issued a decision in Sackett v. USEPA last week. The opinion by Judge Michelle Friedland readily dispatched with the EPA’s dilatory procedural tactics, but nonetheless ruled against the Sacketts on the ultimate question at issue: Whether their land is subject to regulation under the CWA. Now the question is whether this case will go back to the Supreme Court.
The EPA had tried to argue that its decision to rescind the ACO rendered the case moot. Judge Friedland ably and soundly rejected this argument. The EPA’s decision to rescind the ACO did not preclude the agency from taking additional action against the Sacketts and the EPA’s action “did nothing to alter EPA’s position throughout this litigation that it has the au
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