The Natural Resources Section of the Hawaii State Bar Association has kindly asked me to speak to its members at their monthly lunch meeting, next Tuesday, November 1, 2011, from noon to 1:00 p.m. at the HSBA conference room, located on the 10th floor of Alakea Corporate Tower, 1100 Alakea Street.
I’ll be discussing the case currently pending in the U.S. Supreme Court about the ability of property owners to challenge a jurisdictional determination by the U.S. Environmental Protection Agency, Sackett v. United States, No. 10-1062 (cert. granted June 28, 2011).
The issue now before the Court is whether the Ninth Circuit correctly concluded that property owners who contested the EPA’s Clean Water Act jurisdiction could do so only in the course of an EPA enforcement action, and could not seek immediate judicial review of whether their property was even subject to the EPA’s authority. Sackett v. EPA, 622 F.3d 1129 (9th Cir. 2010).
The Supreme Court granted cert to review these questions:
1. May Petitioners seek pre-enforcement judicial review of the administrative compliance order pursuant to the Administrative Procedure Act, 5 U.S.C. § 704?
2. If not, does Petitioner’ inability to seek pre-enforcement judicial review of the administrative compliance order violate their rights under the Due Process Clause?
We will talk about the case, the arguments of the parties and amici (the State of Hawaii joined an amici brief in support of the property owners), and what the Court might do. Please join us and bring your questions. Non-members are welcomed to join on a space available basis.