In 2008, EPA issued an administrative order to Chantell and Michael Sackett, requiring them to remove what EPA had concluded was illegally placed fill on their property in Northern Idaho. Litigation followed, including a fairly well-known Supreme Court decision.
After the Supreme Court ruled that the Sacketts were entitled to appeal the administrative order, the case was remanded to the District Court. On March 31, the Court granted the government’s summary judgment motion and upheld the original order. The Sacketts’ property does include waters of the United States and the filling violated the Clean Water Act.
The decision was fairly straightforward and I think would be upheld under any likely definition of WOTUS, but I note the following:
- Because the 2015 WOTUS rule is stayed in Idaho, the Court utilized the prior rule in adjudicating the case.
- Based on the Army Corps’ 1987 Wetlands Delineation Manual, the Court easily concluded that EPA was not arbitrary and capricious in concluding that wetlands indicators were present on the Sacketts’ property.
- The Court found that there was a “significant nexus” between the wetlands on the Sacketts’ property and Priest Lake, a traditional the navigable water. (Following Rapanos, the 9th Circuit had adopted the Kennedy significant nexus test.)
Like many examples of lengthy, contentious, litigation, this case can be seen as a Pyrrhic victory for both sides. While the Sacketts had deep-pocket support from the Pacific Legal Foundation and others, what they cared about was the ability to build a home on their property. This decision means that they cannot do so, giving their famous Supreme Court win a decidedly Pyrrhic feel.
On the other hand, EPA prevented the Sacketts from building on their property, but the agency presumably cared more about being able to issue administrative orders that aren’t subject to pre-enforcement review.
They both lost what they cared about the most. Litigation, thy name is irony.