United States of America
Chantell and Michael Sackett (the “Sacketts”) filled in approximately one-half acre of land with dirt and rock in preparation for building a house. Approximately six months later, the United States Environmental Protection Agency (“EPA”) issued a compliance order alleging that the affected lands were a wetland, and that the fill activities violated the permit requirements of the Clean Water Act (“CWA”). The compliance order required the Sacketts to remove the fill material and restore the property to its original condition, or face civil penalties of up to $32,500 per day and administrative penalties of up to $11,000 per day. The Sackets sought a hearing with EPA to challenge the finding that the lands were subject to EPA CWA jurisdiction. EPA declined. The Sacketts then sought judicial review in the U.S. District Court for the District of Idaho. The district court held that the CWA precludes judicial review of compliance orders before EPA has started an enforcement action in federal court. On appeal, the Ninth Circuit Court of Appeals affirmed On appeal before the Ninth Circuit, the Sacketts argued that compliance orders should be subject to judicial review and that nothing in the CWA would preclude such review. Though the CWA is silent on the issue, the Ninth Circuit sided with numerous other courts holding that the CWA impliedly precludes judicial review of compliance orders until EPA brings an enforcement action in district court. The Ninth Circuit found some comfort in a similar interpretation of the CleanAir Act, and reasoned that judicial review of compliance orders would hinder EPAs ability to address environmental problems quickly without becoming immediately entangled in litigation. The Sacketts also alleged that preclusion of pre-enforcement review would deprive them of their due process rights because ignoring the order would automatically lead to imposition of severe civil penalties without an opportunity to be heard. The CWA provides that “any person who violates any order issued by the Administrator . . . shall be subject to a civil penalty.” 33 U.S.C. § 1319(d). The Ninth Circuit declined to interpret the statute literally, holding instead that “any order” means only those orders predicated on actual violations of the CWA as identified by a district court in an enforcement proceeding according to traditional rules of evidence and standards of proof. Thus, the Sackets would not be subject to civil penalties for failure to observe the compliance order if EPA ultimately failed to show the fill activity violated the CWA. Finally, the Sacketts argued that, given the difficulty of restoring the land and the very high civil penalties, “compliance [would be] sufficiently onerous and coercive penalties sufficiently potent that a constitutionally intolerable choice might be presented.” The Ninth Circuit was not persuaded, citing the Sacketts ability to obtain a permit before undertaking fill activities, and the fact that the penalties are committed to judicial discretion and would take into account a wide range of case- specific equitable factors, imposed only after the Sacketts have had a full and fair opportunity to present their case in a judicial forum.