SUPREME COURT:

Justices sympathetic to Idaho landowners in wetlands dispute

U.S. EPA faced a hostile Supreme Court today as the agency defended its authority to issue compliance orders under the Clean Water Act without allowing an immediate hearing on the underlying issue.

Justices from both ends of the political spectrum seemed to think that property owners should be able to contest administrative compliance orders that EPA issues when it believes a permit is required before a wetland is filled.

The case, Sackett v. EPA, arose when Mike and Chantell Sackett, from Priest Lake, Idaho, began earth-moving work on a plot of land just yards from scenic Priest Lake in 2007 (Greenwire, Sept. 19, 2011).

EPA then said the property was a wetland, meaning the site was subject to permitting requirements. The landowners were in violation after they placed fill material into wetlands, EPA said.

The compliance order prevented further construction work on the site and required the Sacketts to restore the wetlands.

The Sacketts -- backed by the Pacific Legal Foundation (PLF), a conservative Sacramento, Calif.-based group that focuses on property rights -- filed suit in the District of Idaho, seeking a hearing so they could contest EPA's order, but a federal judge dismissed their request.

The 9th U.S. Circuit Court of Appeals agreed with the district judge's conclusion, rejecting the Sacketts' argument that their due process rights under the Fifth Amendment of the Constitution were not violated by their inability to contest the order.

During today's arguments, a majority of justices seemed to believe the Sacketts should have some way of challenging the order. It may be that the justices do not have to reach the constitutional question in order for the Sacketts to achieve that goal.

Chief Justice John Roberts and Justice Samuel Alito, both conservatives appointed by President George W. Bush, were most scathing about the government's defense of the existing process.

At one point, Alito asked Deputy Solicitor General Malcolm Stewart whether he agreed that "most ordinary homeowners would say this couldn't happen in the United States."

Earlier, he told Damien Schiff, the Sacketts' attorney, that it was "very strange" that the Sacketts probably could have avoided the enforcement action if they had applied for a permit, even though they don't believe they need one.

Roberts, meanwhile, told Stewart that, when EPA makes a jurisdictional determination about a wetland, the lack of immediate review effectively means the agency is "never going to be put to the test."

The liberal members of the court, while less acerbic, seemed to agree that the existing process needs to be reworked.

Justice Stephen Breyer, while expressing some sympathy for EPA's desire to force compliance with the Clean Water Act, said repeatedly that compliance orders look a lot like final agency action, which is normally reviewable in court under the Administrative Procedure Act.

The order "is not just a warning," he added.

Although it appears EPA is likely to lose the case, Justice Antonin Scalia noted that the agency may be able to avoid any major changes to how it operates by simply issuing warning letters instead of compliance orders.

He also suggested to Schiff that even if the Sacketts did get court review of the compliance order, "you are not going to be out of the woods" because EPA likely would still be able to bring an enforcement action in federal court if it chose to do so.

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