Landowners Appeal to SCOTUS

LINCOLN, Neb. (DTN) -- Should only wetlands with a continuous surface-water connection be considered navigable waters subject to federal jurisdiction? Or does EPA and the U.S. Army Corps of Engineers only need to prove a so-called "significant nexus" to connect wetlands to navigable waters?

It's a question Idaho property owners Michael and Chantell Sackett have put to the Supreme Court in a petition filed on Wednesday, in a case with potentially wide ramifications for farmers, ranchers and other landowners across the country.

For decades farmers and ranchers have been left to figure out on their own which waters on their land may fall under federal jurisdiction.

The petition comes at a time when the Biden administration is undertaking the third rewrite of the definition of waters of the U.S. in the past decade.

The Sacketts' battle on an EPA wetland determination started when they bought a small parcel of land in 2005 with the intent to build a home in Priest Lake, Idaho.

They obtained a county permit to build, but EPA claimed the property contained wetlands and ordered the couple to return the land to what EPA said was its original state or pay penalties -- all without the ability to challenge EPA's wetland ruling.

In their petition filed with the Supreme Court on Wednesday, the Sacketts asked the court to reconsider a ruling it issued in 2006 in Rapanos v. United States.

In Rapanos, the Supreme Court held the Clean Water Act does not regulate all wetlands. However, the court offered no opinion explaining why.

A plurality opinion authored by the late Justice Antonin Scalia and joined by three other justices argued only wetlands with a continuous surface-water connection to regulated waters, can be regulated.

A concurring opinion by Justice Anthony Kennedy, however, allowed for regulation of wetlands regardless of any surface connection so long as wetlands bear a so-called "significant nexus" with traditional navigable waters.

The significant-nexus test was one of the hallmarks of the 2015 waters of the United States, or WOTUS, rule challenged by agriculture interests and eventually taken off the books by the Trump administration.

"That EPA and the Corps are still emboldened, notwithstanding Rapanos, to operate as federal zoning administrators -- dictating how residential subdivisions should be built out -- is just half of the problem of the post-Rapanos world," the Pacific Legal Foundation said in the petition filed on behalf of the Sacketts.

"The other is that neither the lower courts, nor the agencies, nor the regulated public can agree on what the rule of Rapanos is, much less agree on how to apply any such rule efficiently and consistently."

The petition said EPA and the Corps of Engineers have had "no better success figuring out" what Rapanos means.

"They have tried both informal guidance documents and formal notice-and-comment rulemakings," the petition said. "They have tried an amalgam test, combining parts of the significant nexus standard with parts of the Rapanos plurality test. They have tried elaborating on just significant nexus. And most recently, they have looked primarily to the Rapanos plurality opinion. Yet each effort has failed to produce a workable rule that would satisfy the lower courts' conflicting views of what Rapanos allows."

The petition asks the Supreme Court to provide clarity to the Clean Water Act.

"Fifteen years of fruitless confusion, conflict, and litigation is enough," the petition said. "This court can and should chart a better course for the Clean Water Act by articulating a clear, easily administered, constitutionally sound rule for wetlands jurisdiction, using the surface water-connection test set forth in the Rapanos plurality opinion.

"The Sacketts' case is an excellent vehicle for that task. For the Sacketts still want the right to build a home without seeking federal approval."

EPA STOPPED PURSUIT

In April 2020, EPA stopped what was a 12-year pursuit of the Sacketts, asking the U.S. Court of Appeals for the Ninth Circuit in San Francisco to dismiss the case. The agency, however, left open the possibility of future actions on the property.

In a March 13, 2020, letter from EPA's Susan Parker Bodine, then-assistant administrator for enforcement and compliance assurance, the agency said it withdrew the 2008 compliance order. The letter stated EPA had decided several years ago to no longer enforce the original wetlands determination against the Sacketts.

Until April 2020, the Sacketts continued to be subject to an administrative compliance order requiring them to come into compliance or face fines of up to $75,000 per day.

In 2012, the Supreme Court ruled in favor of the Sacketts in their lawsuit against EPA, providing farmers and other landowners a legal leg to stand on when it comes to challenging Clean Water Act determinations. Prior to that ruling, landowners were unable to legally challenge determinations.

The Sacketts argued in a court motion in the Ninth Circuit the EPA did not provide certainty about the future use of the property declared by EPA in 2008 to be a federally protected wetland.

Landowners have often learned about EPA wetland determinations by mail, with little chance to challenge those decisions.

The Sacketts were told by EPA and the Ninth Circuit they could not get direct court review of EPA's claim that a two-thirds-of-an-acre parcel on their land is wetlands and that they must follow an EPA compliance order.

In writing the opinion for the unanimous court, the late Supreme Court Justice Antonin Scalia said, "We conclude that the compliance order in this case is final agency action for which there is no adequate remedy other than APA (Administrative Procedure Act) review, and that the Clean Water Act does not preclude that review."

Yet, the Ninth Circuit later ruled against the Sacketts in their appeal challenging whether EPA ever proved there are wetlands on their property.

Although the Sacketts' property doesn't have a surface connection to federally protected waterways, the EPA ordered the Sacketts to stop work, saying they were violating the Clean Water Act and threatening fines of tens of thousands of dollars per day if they didn't comply.

"Since the Clean Water Act was enacted, EPA has expanded its regulatory powers far beyond what Congress authorized, and property owners like the Sacketts have seen their rights violated in the process," Damien Schiff, a senior attorney at Pacific Legal Foundation, said in a statement.

"Right now, there is a great deal of confusion about how much regulatory power EPA has to regulate waterways. Lawsuits challenging different rules from the Bush, Obama and Trump administrations have created a patchwork of regulation that differs from region to region. The Supreme Court should take this opportunity to clarify what the law is when it comes to navigable waters."

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @DTNeeley

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