Update 2: more commentary here.
Update 1: Two quotes worth noting:
"Scalia joked in summarizing the decision from the bench that the Sacketts were surprised by the EPA decision that their land contained navigable waters of the United States 'having never seen a ship or other vessel cross their yard."” Oh Justice Scalia: you complete me. (via the WaPo)
Justice Alito (mirroring his oral argument question): "The position taken in this case by the Federal Government—a position that the Court now squarely rejects—would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees. The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if property owners begin to construct a home on alot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy." (Alito, J., concurring)
This just in: in a 9-0 decision authored by Justice Scalia, the U.S. Supreme Court has upheld the right of Idaho property owners to seek judicial review of a "wetlands" determination by the EPA via a "compliance order." Justices Ginsburg and Alito filed concurring opinions. The Court's syllabus of Sackett v. EPA:
The Clean Water Act prohibits “the discharge of any pollutant by any person,” 33 U. S. C. §1311, without a permit, into “navigable waters,” §1344. Upon determining that a violation has occurred, the Environmental Protection Agency (EPA) may either issue a compliance order or initiate a civil enforcement action. §1319(a)(3). The resulting civil penalty may not “exceed [$37,500] per day for each violation.” §1319(d). The Government contends that the amount doubles to $75,000 when the EPA prevails against a person who has been issued a compliance order but has failed to comply.
The Sacketts, petitioners here, received a compliance order from the EPA, which stated that their residential lot contained navigable waters and that their construction project violated the Act. The Sacketts sought declarative and injunctive relief in the Federal District Court, contending that the compliance order was “arbitrary [and] capricious” under the Administrative Procedure Act (APA), 5 U. S. C. §706(2)(A), and that it deprived them of due process in violation of the Fifth Amendment. The District Court dismissed the claims for want of subject-matter jurisdiction. The Ninth Circuit affirmed, concluding that the Clean Water Act precluded pre-enforcement judicial review of compliance orders and that such preclusion did not violate due process.
Held: The Sacketts may bring a civil action under the APA to challenge the issuance of the EPA’s order. Pp. 4–10.
Read the decision here, or below. Get ready for a virtual waterfall of opinions making small of this opinion (this is a pyrrhic victory - the Sacketts will ultimately lose the wetlands issue, etc.). But make no mistake: this is a huge win for property owners, and reminds agencies that they are subject to the rule of law. More to follow.