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Wetlands Saga That Reached Supreme Court Churns in Ninth Circuit

Dec. 12, 2019, 6:18 PM

An Idaho couple at the center of a 2012 Supreme Court case that galvanized property rights advocates against the EPA is still sparring with the agency in court.

Chantell and Michael Sackett are urging the U.S. Court of Appeals for the Ninth Circuit to reverse a lower court’s ruling that upheld the Environmental Protection Agency’s determination that the couple’s property contained wetlands protected by the Clean Water Act.

The wetlands in question aren’t covered by the federal statute, and the EPA’s analysis is based on a flawed reading of legal precedent, the Sacketts said in a brief filed Dec. 11.

The Sacketts’ case against the EPA started more than a decade ago after the agency said they were violating the Clean Water Act by starting home-building work on a vacant lot in Priest Lake, Idaho, without an EPA permit.

The agency issued a compliance order that said wetlands on the land were subject to federal protections under the law, and that the couple would have to pay daily fines if they didn’t restore the site. The Sacketts sued over the order, saying the wetlands didn’t fall under federal jurisdiction. But the EPA said it wasn’t a final agency action subject to judicial review.

The case went up to the Supreme Court, setting off a firestorm of support for the Sacketts from landowners and EPA critics who accused the agency of exceeding its authority. The Supreme Court unanimously sided with the Sacketts in 2012, allowing them to challenge the EPA’s order.

They’ve been litigating the issue since then. The U.S. District Court for the District of Idaho sided with the EPA in March, agreeing that the wetlands in question trigger federal permitting requirements. The Sacketts then appealed to the Ninth Circuit.

Competing Opinions

The dispute centers on how the EPA defines which waterways are covered by the Clean Water Act, and how to to interpret the Supreme Court’s famously fractured 2006 decision in Rapanos v. United States.

The justices issued five different opinions in the case. Following a precedent that says the narrowest grounds of a fractured Supreme Court decision are binding, the EPA adopted the interpretation laid out in a concurrence by then-Justice Anthony Kennedy, which said the Clean Water Act applies to wetlands with a “significant nexus” to large bodies of water.

The Idaho district court said the Sacketts’ property qualifies as federally regulated wetland under that standard.

But the Sacketts, represented by the Pacific Legal Foundation, say Kennedy’s opinion shouldn’t be considered the precedent from the Supreme Court’s decision. Instead, they argue that courts should follow the plurality opinion written by the late Justice Antonin Scalia, which endorsed a narrower standard of covered wetlands.

The dispute comes as the Trump administration works to rewrite the EPA’s rules for which waterways the Clean Water Act covers. The agency rescinded an Obama-era regulation that applied the “significant nexus” test and is working on a replacement rule.

The case is Sackett v. EPA, 9th Cir., No. 19-35469, brief filed 12/11/19.

To contact the reporter on this story: Ellen M. Gilmer in Washington at

To contact the editors responsible for this story: Gregory Henderson at; Renee Schoof at