The Sacketts: You Cannot Have This EPA and a Constitution

By Rich Kozlovich

I've been watching this for some time and I lost sight of it in the last couple of years as I thought it was resovled a few years ago.  Wrong!  I'm now shocked the Trump administration didn't fix this, but the fact is Trump came into office without a trusted group of followers, including the Republicans, who actually worked to undermine him in support of the Deep State.  He even left former Obama people in their jobs, and I think some for his whole administration. I have to believe that will change after 2024.   At any rate, here's the story going back ten years, much of what's appearing here is from Wikipedia at the end lending more background.  

On March 9, 2012 I posted this:  

In past weeks I posted a link to a video that was uplifting. This week is going to be different. This will outrage you! Sackett v. EPA Still Awaiting SCOTUS Decision

 

 

In January 2012, the Supreme Court heard the arguments for Sackett v. EPA, the case of an Idaho couple being persecuted for trying to build a home on a small plot of property the Environmental Protection Agency deemed "protected wetlands." The case is still under review and the Sacketts are waiting for a decision, but Reason followed up with a great video breaking down the entire enviro-busybody boondoggle.

It's an ugly story of Deep State corruption, petty bureaucrats and why we need to abolish the EPA. 

You Cannot Have This EPA and a Constitution  By Terence P. Jeffrey | January 16, 2012 - ESTMark Levin says America cannot at the same time have a Constitution and an Environmental Protection Agency (EPA) that is doing what the EPA is doing today. Levin made the observation in an interview with CNSNews.com about his new book, “Ameritopia: The Unmaking of America.”  Modern American liberals, who are Utopias, Levin said, aim to erode the separation of powers built into the U.S. Constitution so that a “relative handful of masterminds” can tell everybody else what to do. “This erosion has been going on for about a hundred years,.......It’s at a much faster pace right now and there’s a reason for this--because you can’t have constitutionalism and utopianism"............The Supreme Court last week heard arguments in the case of Sackett v. Environmental Protection Agency. The case was brought by an Idaho couple, Mike and Chantell Sackett, who were told by the EPA that they could not build a home on their own lot because the EPA said it might be a wetland—and that they could face a fine of $37,000 per day for defying the EPA’s order...........SOURCE

Sackett versus the EPA: There is more! -  Today the United States Supreme Court issued an opinion in Sackett v. Environmental Protection Agency, a case brought by an Idaho couple represented by our friends at the Pacific Legal Foundation. It is a great victory for landowners facing the wrath of the EPA.Wyoming Liberty Group's Steve Klein's article was a refreshing change from the dozen or so articles I read or skimmed in the liberty-media and elsewhere in the days after the SCOTUS decision was announced. I even posted a comment – in general praising Steve's work – though it has not (as of Saturday the 24th at 1800 hours MT) been screened and posted. Perhaps they thought that I was being too critical of Steve's article. To read more..... This ruling handles the surface issue but this goes far deeper than the surface issue. RK

A Victory over the Ideological and Tyrannical Thugs at the EPA - March 22, 2012 by Dan Mitchell - For another example, let’s look at a case involving the thugs at the Environmental Protection Agency (EPA). This Reason TV video provides the background......

Sackett versus the EPA: There is more - Today the United States Supreme Court issued an opinion in Sackett v. Environmental Protection Agency, a case brought by an Idaho couple represented by our friends at the Pacific Legal Foundation. It is a great victory for landowners facing the wrath of the EPA. Wyoming Liberty Group's Steve Klein's article was a refreshing change from the dozen or so articles I read or skimmed in the liberty-media and elsewhere in the days after the SCOTUS decision was announced. I even posted a comment – in general praising Steve's work – though it has not (as of Saturday the 24th at 1800 hours MT) been screened and posted. Perhaps they thought that I was being too critical of Steve's article. To read more.....

 KNIGHT: Taming the EPA monster - By Robert Knight - - Friday, March 23, 2012 - Supreme Court ruling strikes a blow in ongoing battle. Slowly, inexorably, the monster is being driven back to its lair. Its days of terrorizing villagers may soon be over. I wish I were talking about the federal government, but it’s the Environmental Protection Agency (EPA), better known as the Environmental Protection-or-else Agency. At one time, it was a harmless little back-alley operation that stumbled upon a secret growth formula, downed the whole vat and began wreaking havoc. You won’t find this account on the EPA’s official website, but you will find ample evidence of the monster’s ambitions to control the world, such as its quest for “environmental justice.” On Wednesday, the U.S. Supreme Court slapped the monster right across the chops in Sackett v. EPA. An Idaho couple, Chantell and Mike Sackett, were building a home but fell victim to an EPA compliance order in 2005. Their building permit was revoked.......To Read More...

 Years after Supreme Court win, Sacketts lose fight with EPA -  Ariel Wittenberg, E&E News reporter Greenwire: Wednesday, April 3, 2019 - After winning the right to challenge EPA enforcement orders in a major 2011 Supreme Court ruling, Michael and Chantell Sackett have lost their case. A U.S. District Court for the District of Idaho judge ruled that the wetlands the couple are accused of illegally filling were indeed protected by the Clean Water Act. "The Court finds the EPA's determination was not arbitrary or capricious and is supported by the record," Reagan appointee Judge Edward Lodge wrote in a ruling on summary judgment last week. Tony Francois, an attorney at the Pacific Legal Foundation representing the Sacketts, indicated his clients would appeal the case. "The Sacketts are disappointed in the ruling, but relieved that this phase of the case, involving a more than three-year wait for a decision from the court, is finally complete," Francois said in a statement. "We think there are several legal errors in the district court's decision, and will be filing an appeal." At issue was an administrative compliance order issued in 2007 against the Priest Lake, Idaho, couple for filling in wetlands on their land without a permit. ........To Read More.....

 Certiorari was granted in the case on January 24, 2022.  Owners of land taken over by feds getting day in court Supremes to review EPA decision it controls residential parcel in Idaho - "With this case, the Supreme Court confronts important issues for property rights and due process. When the government seizes control of your land, and you disagree with the justification, shouldn't you be allowed your day in court? Just as important, should EPA be a law unto itself, without meaningful accountability to the courts and the Constitution?"……..And it's not just the Sacketts' land that could be subject to such orders. The foundation arguments suggest that private property across the nation could be at risk. The legal team noted that between 1980 and 2001, the EPA issued up to 3,000 compliance orders every year across the nation. "The reality of the Sacketts' situation is that they have been unambiguously commanded by their government not to complete their home-building project, to take expensive measures to undo the improvements that they have made to their land, and to maintain their land essentially as a public park until the property is 'restored' to the satisfaction of the EPA. They have been threatened with frightening penalties if they do not immediately obey; but they have been refused the prompt hearing they should have received as a matter of right in any court," Pacific Legal argued. ..............

Date	Proceedings and Orders (key to color coding)
Sep 22 2021	Petition for a writ of certiorari filed. (Response due October 25, 2021)
Sep 28 2021	Blanket Consent filed by Petitioner, Michael Sackett, et al.
Oct 15 2021	Motion to extend the time to file a response from October 25, 2021 to November 24, 2021, submitted to The Clerk.
Oct 18 2021	Motion to extend the time to file a response is granted and the time is extended to and including November 24, 2021.
Oct 20 2021	Brief amicus curiae of Southeastern Legal Foundation filed.
Oct 25 2021	Brief amicus curiae of Chamber of Commerce of the United States of America filed.
Oct 25 2021	Brief amici curiae of State of West Virginia, et al. filed.
Oct 25 2021	Brief amicus curiae of New England Legal Foundation filed.
Oct 25 2021	Brief amici curiae of the Cato Institute, et al. filed.
Oct 25 2021	Brief amicus curiae of National Association of Home Builders filed.
Nov 24 2021	Brief of respondents U.S. Environmental Protection Agency, et al. in opposition filed.
Nov 29 2021	Waiver of the 14-day waiting period under Rule 15.5 filed.
Nov 30 2021	Reply of petitioners Michael Sackett, et al. filed. (Distributed)
Dec 01 2021	DISTRIBUTED for Conference of 1/7/2022.
Jan 10 2022	DISTRIBUTED for Conference of 1/14/2022.
Jan 18 2022	DISTRIBUTED for Conference of 1/21/2022.
Jan 24 2022	Petition GRANTED limited to the following question: Whether the Ninth Circuit set forth the proper test for determining whether wetlands are "waters of the United States" under the Clean Water Act, 33 U. S. C. §1362(7).
Jan 28 2022	Joint motion for an extension of time to file the briefs on the merits filed.
Feb 04 2022	Joint motion to extend the time to file the briefs on the merits granted. The time to file the joint appendix and petitioners' brief on the merits is extended to and including April 11, 2022. The time to file respondents' brief on the merits is extended to and including June 10, 2022.
Feb 10 2022	Blanket Consent filed by Respondents, U.S. Environmental Protection Agency, et al.

Sackett v. Environmental Protection Agency may refer to either of two United States Supreme Court cases:

• Sackett v. Environmental Protection Agency (2012) (alternatively called Sackett I), 570 U.S. 205 (2013), a case in which the Court ruled that orders issued by the EPA under the Clean Water Act are subject to the Administrative Procedure Act. 
• Chantell Sackett, et vir v. Environmental Protection Agency, et al.Docket no.10-1062Citations566 U.S. 120 (more) 132 S. Ct. 1367; 182 L. Ed. 2d 367; 2012 U.S. LEXIS 2320 ArgumentOral argumentCase historyPriorCase dismissed, 2008 WL 3286801 (D. Idaho Aug. 7, 2008); affirmed, 622 F.3d 1139 (9th Cir. 2010); cert. granted, 564 U.S. 1052 (2011).SubsequentRemanded to District court, 677 F.3d 1000 (9th. Cir. 2012)HoldingOrders under the Clean Water Act are subject to the Administrative Procedure Act, which requires an appeals process for any ruling by a federal agency.
•  Sackett v. Environmental Protection Agency, 566 U.S. 120 (2012), also known as Sackett I (to distinguish it from the 2023 case), is a United States Supreme Court case in which the Court held that orders issued by the Environmental Protection Agency under the Clean Water Act are subject to the Administrative Procedure Act.^[1] The Court ruled that because the Environmental Protection Agency's orders constitute "final agency action" under the Administrative Procedure Act, federal courts may hear appeals from its orders.

Background

The plaintiffs, Mike and Chantell Sackett, purchased, approximately, a two-thirds acre parcel of land (0.62) near Priest Lake, Idaho, on which they planned to build a house. Shortly after they began clearing the lot, the Sacketts received a Compliance Order from the U.S. Environmental Protection Agency, asserting that the property was subject to the Clean Water Act, and that the Sacketts had illegally placed fill material into jurisdictional wetlands on their property. After trying unsuccessfully to obtain a hearing from the EPA, the Sacketts filed suit demanding an opportunity to contest the jurisdictional basis of the Compliance Order.^[2] Both the District Court^[3] and the Ninth Circuit Court of Appeals^[4] ruled in favor of the government, holding that the validity of the Compliance Order could be challenged only if and when EPA brings an enforcement action seeking to impose civil and criminal penalties against the Sacketts. The Supreme Court granted certiorari, limited to the following questions: "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?"^[5]

The Sacketts, technically consulted by wetland experts Ray and Susan Kagel of Kagel Environmental, LLC,^[6] and represented by Damien M. Schiff of the Pacific Legal Foundation, filed their opening brief on September 23, 2011.^[7] Amicus briefs in support of the petitioners were filed by the Center for Constitutional Jurisprudence, the American Farm Bureau Federation, and the National Association of Homebuilders. The opposition brief of the Solicitor General of the United States was filed on November 23, 2011.^[7] 

Opinion of the Court

In a unanimous opinion by Justice Scalia issued on March 21, 2012, the Court held that EPA's compliance orders may be challenged in a civil action brought under the Administrative Procedure Act (APA). The compliance orders are "final agency action" for purposes of the APA, and the Clean Water Act does not preclude judicial review under the APA.

Justices Ginsburg and Alito each filed concurring opinions. Justice Ginsburg stated in her concurrence that the ruling only permitted the Sacketts to challenge EPA's assertion of jurisdiction over their property; the Court did not resolve whether the terms and conditions of the Compliance Order itself were subject to immediate judicial review. Justice Alito recommended that Congress act to clarify issues regarding the reach of the Clean Water Act.

On May 3, 2012, the Court of Appeals for the Ninth Circuit remanded the Sacketts' challenge to the compliance order to the district court, consistent with the Supreme Court's opinion.

Decision after Remand

The United States District Court for the District of Idaho ruled against the Sacketts, finding that the area in question was a wetland and had been filled without necessary permits.^[8]

• Sackett v. Environmental Protection Agency (2023) (alternatively called Sackett II), case 21-454, a case in which the Court redefined the scope of the EPA's authority to regulate the waters of the United States.  
• Sackett v. Environmental Protection Agency (2023) Full case name - Michael Sackett, et ux. v. Environmental Protection Agency, et al.Docket no.21-454ArgumentOral argumentQuestions presentedWhether the United States Court of Appeals for the Ninth Circuit set forth the proper test for determining whether wetlands are "waters of the United States" under the Clean Water Act, 33 U.S.C. § 1362(7).Laws appliedClean Water Act 
• Sackett v. Environmental Protection Agency (Docket 21–454), also known as Sackett II (to distinguish it from the 2012 case), is a pending United States Supreme Court case related to the scope of the Clean Water Act.

Background

Chantell and Michael Sackett purchased a 0.63-acre vacant lot near Priest Lake, Idaho, in 2004. They began construction of their home in the spring of 2007, after attaining building permits from local authorities. Shortly after, officials from the United States Environmental Protection Agency informed the Sacketts that their lot might be subject to regulation under the Clean Water Act, as it contained "wetlands" that were "navigable waters". The EPA directed the Sacketts to halt construction until they received a permit from the United States Army Corps of Engineers. The Sacketts received an administrative compliance order from the EPA in the fall of 2007. In 2008, they sued under the Administrative Procedure Act. The lower courts held EPA compliance orders were not subject to the APA, but the Supreme Court reversed in a 2012 decision of the same name.

In the 2006 Rapanos v. United States decision, the Supreme Court decided the scope of the Clean Water Act in a 4–1–4 opinion. Justice Anthony Kennedy's solo concurrence offered a more sweeping interpretation of the Act's jurisdiction over navigable waters; Justice Antonin Scalia's plurality offered the narrowest interpretation. The Sacketts argued to the United States District Court for the District of Idaho on remand from the Supreme Court that their land was not subject to the CWA. In 2019, the district court applied Justice Kennedy's test and held the lot was regulated by the CWA. The United States Court of Appeals for the Ninth Circuit affirmed in August 2021, and rejected an attempt by the EPA to moot the litigation by withdrawing the compliance order.  The Sacketts filed a petition for a writ of certiorari.^[1]