WASHINGTON (CN) — An Idaho couple persuaded the Supreme Court on Monday to wade into an argument nearly 20 years in the making over what constitutes wetlands that qualify as "navigable waters of the United States" subject to federal pollution rules.
The dispute began in 2004 when Chantell and Michael Sackett bought a soggy residential lot just 300 feet away from, but not outright connected to, Priest Lake, one of Idaho’s largest and most tourist-trafficked waters. While the Sacketts had planned to build a home there, a lengthy regulatory battle has kept those blueprints in knots.
Shortly after the Sacketts received local county building permits and began to fill the property with sand and gravel, they received an order from the Environmental Protection Agency, saying that the property contained wetlands federally protected by the Clean Water Act.
It gave the Sacketts five months to restore the property to its natural state or face fines of up to $40,000 per day.
The Sacketts instead went to court, asking a federal judge in 2008 to overrule the agency's findings that the property was subject to Clean Water Act jurisdiction.
A long and complex legal battle followed. After the U.S. Supreme Court found in 2012 the Sacketts could challenge the EPA’s order, the case culminated with a 2019 ruling in favor of the EPA that said the agency was acting well within its authority when it determined the property contained protected wetlands. Last year, the Ninth Circuit sided with the EPA as well, finding that the Sacketts’ property shares enough pivotal environmental connections with Priest Lake for it to fall under federal authority.
Citing a series of hands-on environmental inspections of the property, the court found the EPA was right to believe that what happens on the Sacketts' property would influence the health of the lake. This link creates a “nexus” between the residential property and the nearby lake that, from a regulatory stance, binds the two together and puts the Sacketts’ property squarely within the jurisdiction of the Clean Water Act, the court found.
Weeks after that August ruling, the Sacketts petitioned the Supreme Court to again intervene. Represented by Pacific Legal Foundation attorney Damien Schiff, they argue that “average citizens seeking to do normal, everyday activities — like building a family home — are left adrift, uncertain if their sometimes ‘soggy’ property may be regulated.”
“They are immobilized by the understandable fear of the ‘crushing’ consequences should they guess wrong as to jurisdiction, even if they are among the very few who can afford the six-figure costs of the permitting process, or the squad of wetland consultants and lawyers needed to disprove jurisdiction and to defend that conclusion in court,” the petition continues.
The Environmental Protection Agency responded in opposition to the Sacketts' petition in November, calling it untimely for the court to take up this case while a proposed rule to define the term “waters of the United States” under the Clean Water Act was under review, having just been published that month.
“In the proposed rule, the agencies are exercising the authority conferred by Congress to amend the regulatory definition of that term in light of the CWA’s text and purposes and the relevant precedents of this Court,” the government argues.
Schiff praised the high court’s taking up of the case Monday, saying he hopes the justices' ruling will bring “a respect for private property rights to the Clean Water Act’s administration.”
“The Sacketts’ ordeal is emblematic of all that has gone wrong with the implementation of the Clean Water Act,” Schiff said in a statement. “The Sacketts’ lot lacks a surface water connection to any stream, creek, lake, or other water body, and it shouldn’t be subject to federal regulation and permitting.”
Attorneys at the Department of Justice, representing the EPA, did not respond immediately to a request for comment.
The grant of a writ of certiorari was one of three that the Supreme Court issued Monday in a long list of orders containing dozens of denied cases. Per their custom, the justices did not issue any comment on their decisions.
Another of the cases taken up Monday is a petition from the technology and weapons company Axon Enterprise, which faced an investigation from the Federal Trade Commission after it absorbed “an essentially insolvent competitor,” Vievu LLC, in 2018.
The body camera and digital technology company, which creates products for law enforcement, sees the investigation as unconstitutional, but dismissed the challenge for lack of jurisdiction, and the Ninth Circuit affirmed 2-1.
“Forcing citizens to endure constitutional injury before they can vindicate their rights is antithetical to our constitutional traditions, especially when deferring judicial relief makes fashioning a meaningful remedy difficult,” the company wrote.
In an opposition brief filed in September, the Fair Trade Commission maintains that "it may initiate an administrative proceeding" under the federal law forbidding unfair competition and deceptive practices.
Kirkland Ellis attorney Paul Clement represents Axon but did not return a request for comment, nor did Department of Justice attorneys for the Federal Trade Commission.
The third case that the Supreme Court took up on Monday is an affirmative action challenge against Harvard and the University of North Carolina.
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