The U.S. Supreme Court ruled in favor of PLF clients Mike and Chantell Sackett, of Priest Lake, Idaho, who were told by EPA -- and by the Ninth Circuit -- that they could not get direct court review of EPA's claim that their two-thirds of an acre parcel is "wetlands" and that they must obey a detailed and instrusive EPA "compliance" order, or be hit with fines of up to $75,000 per day.

7. “Notice is shall be remove violation of, orpre-disturbance
“Respondents shall restored and/or obtain access to the Site
“[T]he Sitehereby given that all unauthorized fill material
provide to its original, failure to comply
with, the foregoing order . to original approved to
and any off-Site areas . may access iswetlands soils (1)
placed within wetlandswith.thesubject Respondentsto that
topographic condition to .which a locationnecessary by the
civil representative”
implement this up to and shall provide
EPA penalties ofOrder; $32,500 per day of violation.” records
were previously removed from the Site.”access to all
and documentation related to the conditions at the Site and
the restoration activities conducted pursuant to this Order.”

8. Path to the Supreme Court 4/29/08:
Filed Complaint
10/16/08:
Appeal to Ninth 8/27/08:
Circuit Court Dismisses
Suit
11/29/10:
9th Circuit Refuses
to Rehear
9/17/10:
9th Circuit Affirms
Dismissal

9. “The are not persuaded that the potential consequences
“[T]he civil penalties provision is committed property
“We Sacketts could seek a permit to fill theirto judicial,
and agency,house, the denial of penaltyare so be
not build a discretion. . . . Any orders ultimately
from violating CWA compliance which would onerous
immediately appealable to ato the courts’ under the a
assessed against the access would therefore create
so as to ‘foreclose allSackettsdistrict court and reflect
APA. If the Sacketts were denied a permit and theninto
discretionary, judicially determined penalty, taking
‘constitutionally intolerable choice.’”
took an appeal, rangecould challenge whether their
account a wide they of case-specific equitable factors,
property is subjectafter the Sacketts have had a full and
and imposed only to the jurisdiction of the CWA.”
fair opportunity to present their case in a judicial
forum.”

10. Path to Victory!!
2/25/11
Petition for Certiorari to
Supreme Court
6/28/11
Court Grants Petition
1/9/12
Oral Argument
3/21/12
Unanimous Decision

11. How Does the Court Decide Which
Cases to Consider
• The Supreme Court has broad discretion
• In 2006 term 8,517 petitions filed
– Only 78 granted (.9%)
• Court tends to take cases where there is
disagreement among the Circuit Courts
– Example: recent healthcare cases
• In Sackett, all Circuit Courts of Appeal agreed
with EPA
• Skilled lawyering can overcome long odds

12. Justice Justice Justice
Sotomayor Alito Justice
Breyer
Kagan
Justice Chief Justice
Justice
Scalia Justice Kennedy
Thomas
Roberts
Justice
Ginsburg

18. Supreme Court Opinion
• Unanimous in finding for the Sacketts
– The Sacketts may bring a civil action under the
APA to challenge the issuance of the EPA’s order.
• 9th Circuit decision was reversed
• Opinion of the Court delivered by Justice
Antonin J. Scalia
– Concurring: Alito, Ginsburg

19. “The Government warns that the EPA is less likely to use
[compliance] orders if they are subject to judicial review. That may
be true---but it will be true for all agency actions subject to judicial
review. The APA’s presumption of judicial review is a repudiation of
the principle that efficiency of regulation conquers all.”

20. “The position taken by the Federal Government [in this
case] would have put the property rights of ordinary
Americans entirely at the mercy of [EPA] employees.”
“The reach of the Clean Water Act is notoriously
unclear.”
“In a nation that values due process, not to mention
private property, such treatment [like what the Sacketts
received] is unthinkable.”
“Real relief requires Congress to do what it should have
done in the first place: provide a reasonably clear rule
regarding the reach of the Clean Water Act.”

21. PLF’s assessment of the outcome
• The Justices have made it clear that EPA
bureaucrats are answerable to the law and
the courts, just like the rest of us.
• EPA will have to put in some honest work and
use credible science, because the regulators
must be able to justify their wetlands orders
in a court of law.

22. What the opinion means:
• The case is reversed and remanded to the
Ninth Circuit Court of Appeals
• New date will be set at the federal district
court in Boise, Idaho