Country
United States of America
Sources
InforMEA
Tagging
Wetlands, Property, Permits, Remedies, Constitutional, Jurisdiction, Injunctive Relief, Civil, Administrative, Liability
Abstract
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, The Ninth Circuit af¬firmed, concluding that the Clean Water Act precluded preenforcement judicial review of compliance orders and that such preclusion did not violate due process. The issue before the U.S. Supreme Court was whether the owners are entitled to a preenforcement challenge to EPA compliance orders based on constitutional due process and takings principles. Interestingly, the government argued that a “compliance order” is not really an order. It’s a “compliance communication.” Under the Administrative Procedure Act (APA), judicial review is provided for “final agency action where there is no other adequate remedy in a court.” In a unanimous decision the Court determined that the compliance order at issue clearly satisfied the requirement of finality under the APA and reversed the Ninth Circuit. Via the order, the EPA had required the owners to not only restore their tract in accordance with the EPA’s order, but give the EPA access to their property or face legal consequences if they did not – the doubling of penalties per day of non-compliance. Accordingly, the Court determined that the EPA’s order was, in reality, the end-point of the EPA’s decision making with respect to the owner’s property – there was no further agency review possible. In addition, the owners, could not go to court to challenge the order because the EPA had not brought a civil action (which brings along with it the right to judicial review) and the owners could not initiate a civil action on their own. The Court also reasoned that making the owners apply to the U.S. Army Corps of Engineers for the necessary permit and then sue under the APA if the permit is denied is not an adequate remedy. Finally, the Court noted that the CWA doesn’t preclude judicial review under the APA, and that the government’s arguments to the contrary on that point were not persuasive. The Clean Water Act is not a statute that “preclude[s] judicial review” under the APA, 5 U. S. C. §701(a)(1). The APA creates a “presumption favoring judicial review of administrative action.” While this presumption “may be overcome by inferences of intent drawn from the statutory scheme as a whole,” the Government’s arguments do not support an inference that the Clean Water Act’s statutory scheme precludes APA review.