Supreme Court Hears Argument in Sackett v. EPA

UPDATE: 1/9/2010: The Supreme Court heard oral argument today. We have the transcript of the Sackett v. EPA oral argument now.

The Fifth Amendment to the U.S. Constitution guarantees that no person shall be “deprived of life, liberty, or property, without due process of law.” Apparently the folks running the U.S. Environmental Protection Agency (EPA) were absent the day the Constitution was discussed. Depriving citizens of property rights in violation of the 5th Amendment seems to be a way of life at the EPA.

Property owners CHANTELL and MICHAEL SACKETT purchased a small lot in a residentially zoned area upon which to build their new home. Before starting construction they did all the normal due diligence, inspecting the property and considering its suitability for residential development. Indeed, the property was located within an existing built-out subdivision with roads and residential lots on both sides. They obtained all required local permits and began grading the land and constructing their new home. No information available to the Sacketts suggested that their property contained “wetlands” regulated under the Clean Water Act.

Soon after construction was commenced the Sacketts were issued an EPA compliance order charging them with violating the Clean Water Act by placing fill material on their lot. The order imposed serious and costly sanctions on the Sacketts, and enjoins them from the only practical use of the property authorized under local law.

The EPA order went so far as to specify that the entire site be planted with “native scrub-shrub, broadleaved deciduous wetland plants and seeded with native herbaceous wetland plants.” Trees and tall shrubs were ordered to be planted “ten feet apart on center over the entire Site.” The order was later amended to demand that the Sacketts restore the site “to its original, pre-disturbance topographic condition with the original wetlands soils that were previously removed from the Site.” The EPA subjected the Sackett’s property to federal mandate, prohibiting the intended and legally authorized use, and requiring burdensome and expensive remedial actions.

At no time prior to the EPA’s enforcement action were the Sacketts given an opportunity to have the matter heard and adjudicated. Thus, this case revolves around a violation of constitutional due process.

Questions to be considered by the Court are:

1. May Petitioners seek pre-enforcement judicial review of the Administrative Compliance Order pursuant to the Administrative Procedure Act, 5 U.S.C. § 704?

2. If not, does Petitioners’ inability to seek preenforcement judicial review of the Administrative Compliance Order violate their rights under the Due Process Clause

Oral argument before the Supreme Court is scheduled for January 9, 2012. We will post the audio and transcript of the oral argument as soon as it is available. We have the Petitioner’s merit brief and the EPA Respondent’s brief for your review now. Having read the briefs prior to listening to the oral arguments will make the case more interesting.

The Sacketts gained the attention and sympathy of a broad spectrum of supporters who filed amici curiae briefs on their behalf. The widespread support the Sacketts have received is remarkable, and illustrates the seriousness of the matter. This case affects not only the Sacketts, but all property owners throughout the fifty states under the tyrannical jurisdiction of the EPA.

Supporters include: AMERICAN FARM BUREAU FEDERATION, NATIONAL COUNCIL OF FARMER COOPERATIVES, NATIONAL CATTLEMEN’S BEEF ASSOCIATION, PUBLIC LANDS COUNCIL, WET WEATHER PARTNERSHIP, SOUTH CAROLINA WATER QUALITY ASSOCIATION, NORTH CAROLINA WATER QUALITY ASSOCIATION, WEST VIRGINIA MUNICIPAL WATER QUALITY ASSOCIATION, VIRGINIA ASSOCIATION OF MUNICIPAL WASTEWATER AGENCIES, NATIONAL ASSOCIATION OF CLEAN WATER AGENCIES, the CITY OF NEW YORK, THE STATES OF ALASKA, WYOMING, HAWAII, SOUTH CAROLINA, VIRGINIA, NORTH DAKOTA, NEBRASKA, ARIZONA, COLORADO, MICHIGAN, THE AMERICAN CIVIL RIGHTS UNION, AMERICAN PETROLEUM INSTITUTE, AMERICAN ROAD & TRANSPORTATION BUILDERS ASSOCIATION, BUILDING OWNERS AND MANAGERS ASSOCIATION INTERNATIONAL, CROPLIFE AMERICA, THE FERTILIZER INSTITUTE, FOUNDATION FOR ENVIRONMENTAL AND ECONOMIC PROGRESS, INTERNATIONAL COUNCIL OF SHOPPING CENTERS, NATIONAL ASSOCIATION OF REAL ESTATE INVESTMENT TRUSTS, NATIONAL ASSOCIATION OF REALTORS®, NATIONAL MINING ASSOCIATION, NATIONAL MULTI HOUSING COUNCIL, AND UTILITY WATER ACT GROUP, THE COMPETITIVE ENTERPRISE INSTITUTE, GENERAL ELECTRIC CO., INSTITUTE FOR JUSTICE, MOUNTAIN STATES LEGAL FOUNDATION, NATIONAL ASSOCIATION OF HOME BUILDERS, THE REAL ESTATE ROUNDTABLE, NATIONAL APARTMENT ASSOCIATION, NATIONAL ASSOCIATION OF MANUFACTURERS, CENTER FOR CONSTITUTIONAL JURISPRUDENCE, NATIONAL FEDERATION OF INDEPENDENT BUSINESS SMALL BUSINESS LEGAL CENTER, THE CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA.

For a discussion of the decision of the court below, see the Ecology Law Quarterly article, “Ninth Circuit: EPA Compliance Orders Are Not Subject to Pre-Enforcement Judicial Review.
[Sam Wheeler, Ninth Circuit: EPA Compliance Orders Are Not Subject to Pre-Enforcement Judicial Review, 38 ECOLOGY L.Q. 611 (2011)]


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Comments

Supreme Court Hears Argument in Sackett v. EPA — 2 Comments

  1. The EPA’s Respondent Brief is a masterpiece of bureacrateeze.
    The centerpiece of their argument is that a ‘compliance order’ is not, in fact an order (all appearances to the contrary). Oh, no. It’s really a ‘tool to initiate a dialogue leading to a satisfactory resolution of the situation without resorting to the judiciary’.

    And what constitutes, in the EPA’s hive mind, a ‘satisfactory resolution’ ? That’s easy, because they tell us. A satisfactory resolution is achieved by ‘inducing
    voluntary compliance’. Three words that do not belong together, except they are.

    The EPA also chides the Sackett’s for not seeking a Jurisdictional Determination from the ACOE of whether their property contains wetlands before beginning to build, and states that the Sackett’s could have appealed the JD if they wanted.

    Well, sort of but not really. It is possible to ask the ACOE to revisit their JD in a kind of ‘internal audit’. Good luck with that. The EPA brief suggests that the JD
    may then be appealed in court. Except that, in Fairbanks North Star Borough v
    ACOE (2008), the Ninth Circuit Court ruled that petitioners may NOT use the court
    system to appeal Jurisdictional Determinations, because they do not denote a
    ‘final agency action’. And that ruling has not been challenged. Fairbanks appealed to the Supreme Court, but was denied cert. So the EPA brief is wrong, the JD cannot be appealed through the court system (as if most landowners had the time and money to try in the first place).

    • Thank you for your comments. This is, indeed, a very interesting case, and I cannot wait to see if Justice will be dispensed by the Court. I am looking forward to listening to the oral arguments, which we will post here as soon as the recording becomes available.

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