What is a property owner to do when faced with a regulatory agency asserting that its permission must be obtained before the property can be used, when the property owner believes that the agency does not have authority over her land?
According to the agency, the property owner has two choices: she can either file an application under protest for a permit that she doesn't think she needs, or she can go ahead without a permit and take the risk that she is wrong and will end up on the wrong end of an enforcement action.
How about an immediate challenge and judicial review? No dice, according to the agency, it's premature.
This issue is now being considered by the U.S. Supreme Court in in Sackett v. EPA, No. 10-1062, the case in which Idaho property owners are asserting their right to challenge the EPA's assertion that a portion of their land are "wetlands." The property owners have just filed their the top-side brief.
The Court is reviewing a Ninth Circuit decision which concluded that property owners who contested the EPA's Clean Water Act jurisdiction could only 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 Sacketts own a small lot in Idaho and filled a portion of it with dirt and rocks to prepare it for the construction of a house. The EPA issued a "compliance order" alleging the parcel is a wetland and that the fill was an illegal "discharge" into navigable waters without a permit, in violation of the CWA. It ordered the Sacketts to remove the fill, or face penalties of up to $42,500 per day. The Sacketts believed their property is not subject to the CWA (video here, if you want a view of the place), and asked the EPA for a hearing, which it denied.
They challenged the EPA's jurisdiction by filing a declaratory judgment action in federal court. But the court dismissed the complaint because the CWA precludes judicial review of a compliance order before the agency has started an enforcement action in federal court. The Ninth Circuit, as noted above, affirmed, holding that property owners cannot affirmatively seek a determination that the EPA has no basis for asserting CWA jurisdiction over their land.
The Supreme Court is considering this Question Presented:
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 Petitioners' inability to seek preenforcement judicial review of the Administrative Compliance Order violate their rights under the Due Process Clause?More when available. Here's the Court's docket page. [Disclosure: Pacific Legal Foundation represents the property owners. I do PLF's work in Hawaii cases.]
Petitioner's Brief on the Merits, Sackett v. EPA, No. 10-1062
