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An opinion piece published in the Spokesman-Review sheds some additional light on the Sackett case pending before the U.S. Supreme Court.

As we’ve written before, the Supreme Court is only deciding a procedural point about how and when the Sacketts can challenge an EPA wetlands determination. Even if the Sacketts win their Supreme Court case, they could still lose their challenge when both sides put their facts before a judge.  Indeed, based on the Spokesman-Review piece, the Sacketts may face an uphill battle.

In the Spokesman-Review, Michael Doherty, a retired biologist and wetland regulator with the Corps of Engineers writes fairly directly:

“I drove by the property in question for decades and know it is a wetland. It was frequently covered with standing water, soils were saturated, and it was covered with plants common to wetlands in the area. These are the three criteria used to identify wetlands under federal guidelines, and the property meets them all.

Beyond the science, an average person would see it is located at the bottom end of a large drainage and is very wet. Yet they claim the lot is not a wetland. So why did they need to haul fill with dump trucks for three days to prepare it for construction of their house?

The $23,000 price for two-thirds of an acre lot located less than 100 yards from the shore of Priest Lake speaks volumes. The typical price of vacant Priest Lake property is much higher and points to the substandard nature of the property as a home site. As excavation contractors, the Sacketts were amply equipped to fill the lot and prepare it for building.”

The wetland shows up in the USFWS wetland inventory. The Sacketts’ own consultant said it was likely a wetland. (Until they changed consultants, of course.)  Just because the property contains a wetland doesn’t necessarily mean that the EPA and the Corps of Engineers have jurisdiction.  But these facts and circumstances are obviously not very helpful to the Sacketts when the case comes back to Idaho after its trip to Washington, DC.

Doherty writes:

“Though portrayed as such, this is not a case of the Sacketts versus a big government fabricating a case against them. The EPA does not fabricate cases because there are wetland violations all around us, and only the most egregious are pursued. The facts of any case are analyzed and reviewed by managers and attorneys and, if weak, it does not go forward to any enforcement action, let alone to administrative orders with possible legal action. The analysis includes impact to private property rights as well because taking private property without just compensation is illegal and the government looks very carefully at this issue before making any regulatory decisions.”

Indeed, as the adage goes: When the law is not on your side, you argue the facts; when the facts are not on your side, you argue the law.  The Sacketts have been arguing the law fairly effectively. As this piece points out however, the facts have yet to be heard.

 

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By most accounts, it was a tough day for EPA in the Supreme Court on Monday. Although the Sacketts got their share of skepticism from the Justices, the EPA really took it on the chin during the oral argument of the Priest Lake wetland case.


KEA joined several other conservation organizations in a brief 
to point out that the Sacketts had ample opportunity to work with EPA and the Corps of Engineers to avoid the compliance order, and unnecessary expense, had they chosen to do so.

The issue before the court was whether a “compliance order” issued by EPA to the Sacketts for a Clean Water Act violation is immediately reviewable in a court. The Sacketts, who claim that their property has no wetlands and are therefore not under Clean Water Act jurisdiction, argued that there is no easy way to challenge EPA’s compliance order determination that a wetland exists. Moreover, they say, tough Clean Water Act penalties can accrue at a substantial rate. EPA, meanwhile, argues that the Clean Water Act doesn’t provide for an early hearing. Besides, the Sacketts would eventually get their day in court one way or another, and if EPA couldn’t prove their case, there’d ultimately be no penalties.

At the oral argument, the Supreme Court seemed openly skeptical about the compliance order. Rather than viewing it as a notice, or a warning, which would be followed by an EPA enforcement action, the Justices seemed inclined to consider it an action in and of itself. As such, they hinted that it was a “final” agency decision which should be subject to Court review.

However, Justices were also skeptical of the Sacketts’ argument that they should receive a hearing regarding the compliance order, but also if they were to lose on the wetland jurisdiction issue in the early hearing, they should get another chance to argue their case in a later enforcement case brought by EPA. In other words, EPA would have to prove their wetland case twice.

All of which goes to the real importance of the case. Enforcement of the Clean Water Act is difficult enough for EPA, which is already stretched thin. Compliance orders are designed to be a tool to shortcut formal proceedings – to provide violators with a less formal (and usually less expensive) route to compliance, without going to court and assuming all the risks and expenses that entails. If the Supreme Court finds that EPA’s compliance orders trigger additional hearings or other formalities, it will seriously impact the way Clean Water Act enforcement gets done.

Court watchers and EPA watchers are already speculating as to what EPA might do if the Supreme Court rules for the Sacketts. One guess is that the compliance orders may become less “order-like” and more “warning-ish.” A mere warning, everyone agrees, is not reviewable in Court. Would things be significantly better for the Sacketts if they had received a warning about a Clean Water Act violation as opposed to the compliance order they received? Doubtful. It could, however, delay the actual enforcement of obvious violations, which would also delay cleanup and restoration efforts.

Another guess, and most worrisome to conservation groups, is that EPA will abandon administrative processes and go directly to enforcement actions filed in court. Because of the complexity and expense of doing so, EPA might simply do less enforcement – which could be devastating for the country’s waterways.

Congress, of course, could fix all of this by clarifying what constitutes a wetland, and clarifying procedures. But that isn’t likely to happen any time soon with the current Congress. The Supreme Court’s decision is expected sometime this spring.

 

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We’ll probably have more on this later today or tomorrow, but for those interested in how it went at the Supreme Court today, our friends at Center for Justice have posted the transcript of the oral argument. (Spoiler Alert: the EPA seemed to have a pretty tough day.)

Regardless of the outcome of the case, and regardless of how you feel about wetlands enforcement, the EPA, or anything else — the nation’s highest court is an awesome and impressive thing.  We’re extremely honored to take part.

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This morning, the U.S. Supreme Court agreed to allow filing of an amicus brief in the Sackett v. EPA case which will be argued at the Court on Monday morning. (The Supreme Court’s order (pdf) is here.)  The brief is being filed on behalf of NRDC, the Waterkeeper Alliance, Idaho Conservation League, Idaho Rivers United, Lake Pend Oreille Waterkeeper, and Kootenai Environmental Alliance.

 

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The Supreme Court wetland case involving a Priest Lake lot will be heard by the Court on Monday morning, and the legal and environmental pundits have been previewing the case. The Court has yet to rule on whether a brief by conservation groups will be filed, but a ruling could come as early as tomorrow. In the mean time, here are some of the more impressive previews:

The authoritative and well-respected SCOTUS blog has its preview by legal reporter Lyle Dennison here.

For the Center for Progressive Reform, law professor Nina Mendelson describes why the case is important to environmental enforcement and suggests reforms to avoid problems in the future.

Huffington PostWashington Post and the LA Times covered the issue recently.

Our friends (and hopefully co-friends-of-the-court) at Idaho Conservation League took note with this post.

UPDATED 1/7:  NRDC has a superb post here.

 

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On Monday, the U.S. Supreme Court will hear oral arguments in the case of Priest Lake residents Mike and Chantell Sackett.  We’ve written about this complicated wetlands case before. The Sacketts are suing the EPA over a wetland determination on their property, and that a compliance order issued by EPA in the case should be immediately reviewable in a Court.

In support of the Sacketts’s position, some 13 parties filed “friend of the court” briefs to expand on the Sackett’s arguments, including heavyweights like the Farm Bureau, U.S. Chamber of Commerce, the National Association of Manufacturers, the National Association of Home Builders and General Electric.  However, when KEA joined with NRDCWaterkeeper Alliance, and several other Idaho conservation groups to file a similar brief in support of the EPA, the Sacketts filed a rare objection. The Supreme Court will likely decide whether or not to allow our brief in the next several days.

At issue is the fact that the scenario the Sacketts outline for the Court does not entirely comport to what actually happened. Documents obtained by environmental groups – including a timeline written by Chantell Sackett herself – paint an entirely different picture.

The Sacketts, who argue to the Court that they were blindsided by an EPA Compliance Order regarding the existence of wetlands on their property, fail to acknowledge to the Court that the EPA and their own consultant told them about the wetlands months earlier. (Much later, the Sacketts evidently hired another consultant more to their liking.) The Sacketts who argue about the heavy hand of the EPA fail to acknowledge to the Court that they had ample opportunity to work with EPA to resolve the issues for almost six months prior to receiving the compliance order and for months afterward. The Sacketts who claim that the wetlands permitting process and risk of fines would be financially devastating and would therefore violate their due process rights, fail to mention that an “after the fact” permit would have been very easy and inexpensive to obtain and was offered by the Corps of Engineers as an option.

The Sacketts do not dispute any of these facts. They do, however, in their opposition to our filing, try to explain them away and diminish their significance to the narrow procedural case before the Court.

Indeed, the Supreme Court may decide that the issue of whether the Sacketts’ story holds up or not is the Supreme Court’s problem, and is rather the Sackett’s problem for a later date. The theoretical issues identified by the Supreme Court in granting their review remain the same. The problem, we believe, is that the Supreme Court doesn’t decide theoretical issues, they decide actual cases. We simply believe they should have all the information in this actual case.  We’ll let you know if the Court lets us give our version of the story.

 

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Here’s the thing to remember. We live in the United States of America. We are a nation of laws. We have a Constitution that gives Congress the authority to pass laws under enumerated powers. One of those powers is provided by the Constitution’s commerce clause. Congress passed the Clean Water Act. The Supreme Court has affirmed that, within commerce clause limits, the Clean Water Act is constitutional.

Under the Clean Water Act, within these jurisdictional limits, you cannot fill a wetland without a permit. If you do so, you are subject to enforcement. If you do so intentionally, you are subject to criminal enforcement.

These are facts. They are not arguable.

Agreed, there is significant uncertainty as to the jurisdictional limits. The Supreme Court has issued an almost impossibly complex test for jurisdiction that the lower federal courts are still figuring out. Still, if you have wetlands on your property, the prudent thing would be to make a phone call to the EPA or Corps of Engineers BEFORE firing up the bulldozer. Filling them first and asking questions later is at your own risk.

Ignorance is not an excuse. And it really shouldn’t be a rallying cry either.

 

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