The EPA has filed its merits brief in Sackett v. EPA, No. 10-1062, the case in which Idaho property owners are asserting their right to challenge the agency's assertion via a "compliance order" that a portion of their land are "wetlands" and that they violated the Clean Water Act.
The EPA's brief asserts that the compliance order the Sacketts received, although it stated "EPA's finding that petitioners had violated [the CWA] by discharging fill material into regulated wetlands without a permit," Br. at 6, was merely an invitation to contact the EPA and work things out with the agency. According to the brief, the compliance order was only EPA's "view" that the Sacketts had violated the CWA, and served only to inform them that "unless they took specified measures to achieve prospective compliance with the Act, the agency might seek penalties and/or injunctive relief through a judicial enforcement action." Br. at 10.
The gist of the brief is that the order really didn't do anything substantive, so the Sacketts could not bring a "pre-enforcement challenge" to the compliance order under the Administrative Procedures Act, but had to wait to challenge jurisdiction until the EPA went after them in a judicial enforcement action. Or they could have complied with the compliance-not-enforcement order. In other words, a property owner who receives a compliance order has two choices if she believes that the agency's assertion of jurisdiction is wrong: 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. But an immediate jurisdictional challenge and judicial review? No dice, according to the agency, it's premature.
Here's how the brief treats the due process claim:
Finally, this Court’s resolution of petitioners’ due process claim should reflect an awareness that regulated parties have no general constitutional right to advisory judicial opinions when the existence of legal uncertainty presents them with difficult practical choices. Even if EPA had never issued a compliance order, petitioners would (or should) have been aware that their filling of wetlands subjected them to at least the possibility of an EPA enforcement action. Petitioners could have responded to that possibility by (a) removing the fill and restoring the site to minimize the likelihood of an enforcement suit; (b) initiating consultation with EPA and/or the Corps in an effort to develop a mutually acceptable solution; or (c) continuing to act on the assumption that the CWA did not apply to their discharges, and asserting that position in response to any EPA enforcement suit.
Br. at 54.
In case it wasn't clear enough, here's the EPA's message: even if you don't think your land contains "wetlands" you are aware that it might, and that's good enough. We're not sure how that assertion squares with the concept of either limited federal authority (migratory bird rule, anyone?) or the due process concept of fair notice when the agency is saying that your only legitimate responses are to (a) comply, (b) try and work it out, or (c) not comply and take your chances. That's a tough choice when by the compliance order, the EPA found "that petitioners had violated [the CWA] by discharging fill materials into regulated wetlands without a permit." Br. at 6.
The top-side brief for the Sacketts is posted here. The amicus briefs in support of the Sacketts are available here.
Arguments are set for January 9, 2012. Here is the Court's docket report.
Brief for the Respondents, Sackett v. EPA,10-1062 (filed Nov. 23, 2011)
