Reply Brief — Michael Sackett, et ux., Petitioners v. Environmental Protection Agency, et al.

No. 21-454

In The

Supreme Court of the United States

____________________

MICHAEL SACKETT; CHANTELL SACKETT,

Petitioners,

v.

UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY;

MICHAEL S. REGAN, Administrator,

Respondents.

____________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

____________________

REPLY IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

____________________

ANTHONY L. FRANÇOIS

DAMIEN M. SCHIFF*

Briscoe, Ivester &

*Counsel of Record

Bazel LLP

CHARLES T. YATES

235 Montgomery Street,

Pacific Legal Foundation

Suite 935

555 Capitol Mall, Suite 1290

San Francisco, CA 94101

Sacramento, CA 95814

Telephone: (415) 402-2707 Telephone: (916) 419-7111

tfrancois@briscoelaw.net

DSchiff@pacificlegal.org

CYates@pacificlegal.org

PAIGE E. GILLIARD

Pacific Legal Foundation

3100 Clarendon Blvd.,

Suite 610

Arlington, VA 22201

PGilliard@pacificlegal.org

Counsel for Petitioners

i

Table of Contents

Table of Authorities .................................................... ii

Introduction ................................................................ 1

Argument .................................................................... 2

I.

The conflicts among the lower courts

about how to apply Rapanos support

this Court’s review of the Sacketts’ case ......... 2

II.

EPA’s proposed rulemaking in no way

undercuts the need for this Court’s review ..... 4

III. EPA’s attack on the Rapanos plurality’s

wetland test is no reason to deny review ........ 6

IV. The Sacketts’ petition is the right vehicle ...... 8

Conclusion ................................................................. 12

ii

Table of Authorities

Cases

Marks v. United States,

430 U.S. 188 (1977) ............................................... 3

Nat’l Ass’n of Mfrs. v. Dep’t of Defense,

138 S. Ct. 617 (2018) ............................................. 4

Nichols v. United States,

511 U.S. 738 (1994) ............................................... 3

Rapanos v. United States,

547 U.S. 715 (2006) ........................... 1, 3-4, 7-9, 11

Sackett v. EPA,

566 U.S. 120 (2012) ................................. 1, 5, 9, 11

Solid Waste Ag. of N. Cook County v.

U.S. Army Corps of Eng’rs,

531 U.S. 159 (2001) ............................................... 9

Sturgeon v. Frost,

139 S. Ct. 1066 (2019) ........................................... 9

U.S. Army Corps of Eng’rs v. Hawkes Co., Inc.,

578 U.S. 590 (2016) ...................................... 1, 9-11

United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121 (1985) ........................................... 7, 9

United States v. Robison,

505 F.3d 1208 (11th Cir. 2007) ............................. 2

West Virginia v. EPA,

No. 20-1530 (cert. granted Oct. 29, 2021) ............. 5

iii

Regulations

40 C.F.R. § 120.2(a)(5)(i)-(ii) (proposed) ..................... 2

40 C.F.R. § 120.2(7)(ii)-(iii) (proposed) ....................... 2

Rule

S. Ct. R. 15.2 ............................................................... 3

Other Authorities

Br. for the Fed. Defs. in Opp’n,

West Virginia v. EPA, No. 20-1530 ....................... 5

Br. for the U.S. in Opp’n, Robertson v.

United States, No. 18-609................................... 4-5

Clean Water Rule: Definition of

“Waters of the United States,”

80 Fed. Reg. 37,054 (June 29, 2015) ..................... 6

Corps & EPA, Pre-Publication Notice,

Proposed Rule, Revised Definition of

“Waters of the United States”

(Nov. 18, 2021) .............................................. 4-6, 11

Pet. for Writ of Cert., United States v.

McWane, Inc., No. 08-223 ...................................... 2

1

Introduction

Petitioners Michael and Chantell Sackett ask the

Court to take their case a second time to adopt the

standard for Clean Water Act wetlands jurisdiction

articulated in Justice Scalia’s plurality opinion in

Rapanos v. United States, 547 U.S. 715 (2006)—a

statutorily compelled, straightforward, and easily

implementable rule. By so doing, the Court will render

the “notoriously unclear” issue of the Clean Water

Act’s reach, Sackett v. EPA, 566 U.S. 120, 132 (2012)

(Alito, J., concurring), substantially less “difficult to

determine,” U.S. Army Corps of Eng’rs v. Hawkes Co.,

Inc., 578 U.S. 590, 594 (2016).

Respondents EPA and Administrator Regan

oppose review, contending that: (i) lower courts are

only confused about some but not all aspects of this

Court’s fractured decision in Rapanos; (ii) the agency

should be given yet another opportunity to attempt to

do what, since Rapanos, it has repeatedly proved

incapable of doing, viz., adopting a clear and legally

defensible construction of the scope of its authority

under the Clean Water Act; and (iii) the Sacketts’ case

is a poor vehicle because it will not resolve every

question about the Act’s reach, and because the

agency, having withdrawn its compliance order (while

expressly reserving its authority to regulate), may

choose not to drop its enforcement “hammer” again,

Sackett, 566 U.S. at 127 (majority opinion). As set

forth below, these arguments against the Court’s

review are unconvincing.

2

Argument

I.

The conflicts among the lower courts about

how to apply Rapanos support this Court’s

review of the Sacketts’ case

EPA argues that the lower court conflicts over

how to apply the Court’s split decision in Rapanos are

neither here nor there because no court of appeals has

held the Rapanos plurality test to be controlling. See

Resp. 13-14, 16-17. That point is unavailing, for three

related reasons.

First, the lower courts are in conflict about how to

apply Rapanos. See Pet. 17-20, Amicus Br. of U.S.

Chamber 4-7, Amicus Br. of West Virginia & 20 Other

States 15-16, Amicus Br. of Se. Legal Found. 20-23. In

fact, EPA itself once believed that this Court’s review

was merited to resolve these lower-court conflicts, see

Pet. for Writ of Cert., United States v. McWane, Inc.,

No. 08-223, conflicts that the agency is now on the

precipice of worsening through its proposed

rulemaking, Resp. Br. 10-11. Compare proposed 40

C.F.R. § 120.2(a)(5)(i)-(ii), (7)(ii)-(iii) (allowing

jurisdiction to be proved under either the test from the

Rapanos plurality or Justice Kennedy’s concurring

opinion) with United States v. Robison, 505 F.3d 1208,

1211 (11th Cir. 2007), & Pet. App. A-25 to A-26

(jurisdiction may be proved only under the test from

Justice Kennedy’s Rapanos concurrence). EPA

counters that the Court has repeatedly denied

petitions that have raised these conflicts. Resp. 14.

But the most recent of such denials was 2012. See id.

Whatever might have motivated the Court to decline

review in the handful of years immediately after

Rapanos, the ensuing decade has shown that the

3

confusion surrounding Rapanos is entrenched and

intractable, absent intervention by this Court.1 See

Pet. 17-28.

Second, the Sacketts’ petition offers the Court the

opportunity to greatly reduce this confusion by

adopting as controlling the Rapanos plurality’s rule

for wetlands jurisdiction: a wetland may be reckoned

among the “waters of the United States” if, but only if,

it maintains a surface-water connection with a

regulated water such that it is difficult to say where

the wetland ends and the water begins. Rapanos, 547

U.S. at 742, 755.

Third, adoption of the Rapanos plurality test to

govern wetlands jurisdiction would provide full relief

to the Sacketts as well as similarly situated

landowners throughout the country. There is no

surface-water connection from the Sacketts’ property

to any alleged jurisdictional water: between the site

and the roadside ditch “tributary” are 30 feet of paved

Kalispell Bay Road; and between the site and Priest

Lake 300 feet away is another road as well as a row of

houses.2 Pet. App. A-8, A-33 to A-34, E-1. A better

example of the absence of any “boundary-drawing

Review would not, however, require the Court to employ the

split-decision framework from Marks v. United States, 430 U.S.

188 (1977); the dispute among the lower courts about how to

apply Marks to Rapanos is reason enough to consider afresh the

Clean Water Act’s reach. See Nichols v. United States, 511 U.S.

738, 745-46 (1994) (“This degree of confusion following a

splintered decision . . . is itself reason for reexamining that

decision.”), quoted in Amicus Br. of New England Legal Found.

6.

1

EPA does not appear to contest the absence of any surfacewater connection. See Resp. 15-16. Cf. S. Ct. R. 15.2.

2

4

problem,” Rapanos, 547 U.S. at 742, would be hard to

find.

II. EPA’s proposed rulemaking in no way

undercuts the need for this Court’s review

EPA argues that, in light of its recently proposed

rulemaking, judicial review of the scope of the Clean

Water Act’s wetlands jurisdiction would be

premature. Resp. 17-20. The argument is

unconvincing, for three reasons.

First, even if finalized as proposed, EPA’s new

rule would not resolve the dispute presented by the

Sacketts’ petition over the reach of the Clean Water

Act. The proposed rule would formally reinstate “the

pre-2015 regulatory regime.” Corps & EPA, PrePublication Notice, Proposed Rule, Revised Definition

of “Waters of the United States,” at 7 (Nov. 18, 2021)

(2021 Notice). That is the very same framework

according to which EPA issued the compliance order

challenged in this case. See Pet. 6 & n.1. Hence,

holding off review to allow EPA’s rulemaking to play

out would do nothing to sharpen the issues or avoid

the dispute raised by the Sacketts’ petition.

Second, the mere possibility of future Clean Water

Act rulemaking does not make this Court’s review

unwarranted or improper. See Nat’l Ass’n of Mfrs. v.

Dep’t of Defense, 138 S. Ct. 617, 627 n.5 (2018). EPA

protests that judicial review of the scope of the Clean

Water Act should not happen until the agency “has

completed its work.”3 Resp. 24. But given the

3

The government opposed certiorari in Robertson v. United

States, cf. Pet. 20 n.8, in part on this very ground. See Br. for the

5

contentious history of rulemaking construing “waters

of the United States,” see Pet. 11-13, 21-23, it is likely

that EPA will never, absent intervention by this

Court, finish “its work.”4 Cf. Amicus Br. of U.S.

Chamber 16 (characterizing the rulemaking history

as the “water regulatory version of Groundhog Day—

fated to repeat the same series of events over and over

again” (footnote omitted)). The Court recently rejected

a similar contra-review argument in granting

certiorari in a case challenging EPA’s authority under

the Clean Air Act. See West Virginia v. EPA, No. 201530 (cert. granted Oct. 29, 2021). Cf. Br. for the Fed.

Defs. in Opp’n, West Virginia v. EPA, No. 20-1530, at

16 (“Any further judicial clarification of the scope of

EPA’s authority under Section 7411(d) would more

appropriately occur at the conclusion of the upcoming

rulemaking . . . .”). The Court should do so here as

well. Cf. Amicus Br. of Cato Found. 7 (“[T]he pingpong [of Clean Water Act] policymaking . . . is too

unsettling to pass constitutional muster.”).

Finally, a resumption of the “pre-2015 regulatory

regime,” 2021 Notice 7, will simply subject the nation

yet again to an intolerably burdensome and confusing

regulatory system, Amicus Br. of the Nat’l Ass’n of

Home Builders 11-20; Amicus Br. of U.S. Chamber 1620, one that also threatens to upset the Clean Water

Act’s delicate federal-state balance, Amicus Br. of

West Virginia & 20 Other States 13 (“This situation is

U.S. in Opp’n, Robertson v. United States, No. 18-609, at 21. Yet

in the two years since that denial, the regulatory regime has

become more confused and contentious, not less. See Pet. 22-23.

Help from Congress is unlikely, given that body’s inaction

over the last several decades of wetlands controversy. See

Sackett, 566 U.S. at 133 (Alito, J., concurring).

4

6

untenable. . . . The Court should act to heal the wound

to state sovereignty that too-broad interpretations of

the [Act] have opened these many years.”). EPA

downplays the costs associated with a return to the

status quo ante. Resp. 20-21. But its description

should not be credited, given the agency’s contrary

characterizations elsewhere. See Clean Water Rule:

Definition of “Waters of the United States,” 80 Fed.

Reg. 37,054, 37,056 (June 29, 2015) (“[The] guidance

documents did not provide the public or agency staff

with the kind of information needed to ensure timely,

consistent,

and

predictable

jurisdictional

determinations.”); 2021 Notice 123 (“The agencies

acknowledge that a return to the pre-2015 regime

would . . . potentially rais[e] some timeliness and

consistency issues that the agencies’ rules in 2015 and

2020 were designed, in part, to reduce.”).

III.

EPA’s attack on the Rapanos plurality’s

wetland test is no reason to deny review

Whether the Rapanos plurality’s surfaceconnection rule or, as EPA argues, Justice Kennedy’s

significant nexus test, Resp. 14-15, is the correct one

for construing the extent of the Clean Water Act’s

wetlands jurisdiction is of course the heart of the issue

presented for review. That such competing candidate

rules exist does not weaken the many reasons for why

this Court should grant certiorari and decide which

rule should prevail.

In any event, the plurality’s test is the correct one.

EPA argues to the contrary in part by invoking the

Act’s “animating purposes.” Resp. 14. This Court,

however, has “often criticized that last resort of

extravagant interpretation, noting that no law

7

pursues its purpose at all costs, and that the textual

limitations upon a law’s scope are no less a part of its

‘purpose’ than its substantive authorizations.”

Rapanos, 547 U.S. at 752. Thus properly framed, the

interpretive question raised by the Sacketts’ case is

not, “What is the best way to end water pollution?”,

but rather, “What is the best way to end water

pollution given the statutory means that Congress has

provided?” For the Clean Water Act, those statutory

means do not include the power to regulate all

pollution, or all activities affecting water pollution,

but rather only discharges of pollutants to “navigable

waters,” in turn defined as “waters of the United

States.” See Rapanos, 547 U.S. at 756 (“It would have

been an easy matter for Congress to give the Corps

jurisdiction over all wetlands (or, for that matter, all

dry lands) that ‘significantly affect the chemical,

physical, and biological integrity of ’ waters of the

United States. It did not do that . . . .” (quoting

Kennedy, J., concurring)). Necessarily, then, the

agency has no authority to regulate discharges to nonwaters, e.g., land.

To be sure, determining where land ends and

water begins can be challenging. See United States v.

Riverside Bayview Homes, Inc., 474 U.S. 121, 132, 134

(1985) (observing that “the transition from water to

solid ground is not necessarily or even typically an

abrupt one,” and that “the Corps must necessarily

choose some point at which water ends and land

begins,” given the “inherent difficulties of defining

precise bounds to regulable waters”). But that

difficulty does not mean that EPA can regulate any

and all moist land or, as the Ninth Circuit concluded

below, a “soggy residential lot,” Pet. App. A-4. Rather,

8

as the Rapanos plurality opinion explains, “the

inherent ambiguity in defining where water ends and

abutting (‘adjacent’) wetlands begin” allows EPA “only

to resolve that ambiguity in favor of treating all

abutting wetlands as waters.” Rapanos, 547 U.S. at

742. There is, however, no ambiguity in distinguishing

between such “‘physically abutting’” wetlands and

wetlands that are “merely ‘nearby’” another water, id.

at 748, such as those alleged to exist on the Sacketts’

lot, see Pet. App. A-8, A-33 to A-34, E-1. With respect

to these “nearby” wetlands, there can be no

“boundary-drawing problem,” Rapanos, 547 U.S. at

742—simply put, where the water stops, the

unregulated non-water necessarily must begin.5

IV.

The Sacketts’ petition is the right vehicle

EPA argues that, because the Sacketts here do not

contest jurisdiction over the roadside ditch 30 paved

feet from their home lot, their case is a poor vehicle.

Resp. 21-22. But the fact that the Sacketts do not seek

review of every aspect of Clean Water Act jurisdiction,

such as the extent to which the Clean Water Act

regulates tributaries of traditional navigable waters,

should be a knock in favor of, not against, review.

5

That conclusion follows even if one were to credit EPA’s

invocation of its “experience and expertise after more than 30

years of implementing prior regulations” construing the scope of

the Clean Water Act, Resp. 19. Although there certainly is some

ambiguity as to the precise scope of EPA’s authority under the

Act, the statutory text makes clear that only waters—not wet or

soggy lands—may be regulated. No amount of deference can

fudge that hard statutory distinction. See Rapanos, 547 U.S. at

752. Notably, in Rapanos neither the plurality nor Justice

Kennedy deferred to the government’s regulatory interpretation.

See id. at 799, 807 (Stevens, J., dissenting).

9

After all, this Court typically prefers to work

incrementally, especially in contentious areas such as

environmental regulation. See, e.g., Rapanos, 547 U.S.

at 731 (“We need not decide the precise extent to

which the qualifiers ‘navigable’ and ‘of the United

States’ restrict the coverage of the Act.”); Sturgeon v.

Frost, 139 S. Ct. 1066, 1086 & n.10 (2019) (“leav[ing]

for another day” whether the Park Service may

regulate activities on wild and scenic rivers within

Alaskan national parks). Moreover, the Clean Water

Act jurisdictional disputes that have merited this

Court’s review all have focused principally on the

extent to which EPA may regulate activities in nontributary features. See Riverside Bayview, 474 U.S. at

123 (discharge of fill material into wetlands); Solid

Waste Ag. of N. Cook County v. U.S. Army Corps of

Eng’rs, 531 U.S. 159, 163 (2001) (discharge of solid

waste into abandoned mining pits); Rapanos, 547 U.S.

719-20 (backfilling of wetlands); Sackett, 566 U.S. at

124 (discharge of “dirt and rock” into alleged

wetlands); Hawkes Co., 578 U.S. at 595-96 (mining of

peat from bogs and wetlands).

In any event, the jurisdictional issue presented by

the Sacketts’ petition is not as narrow as EPA would

have it. The agency contends that the Sacketts’ case

does not implicate instances where wetlands are

“adjacent” to intermittent or ephemeral channels.

Resp. 22. That is not so. The Rapanos plurality’s test

for wetlands jurisdiction, which the Sacketts’ petition

asks the Court to adopt, employs a two-step inquiry.

First, is there a nearby channel that qualifies as a

water of the United States? Second, does the wetland

maintain a continuous surface-water connection to

that water? See 547 U.S. at 742. Only if both questions

10

are answered affirmatively may EPA regulate. Hence,

regardless of the degree of flow in any channel,

“nearby” wetlands cannot be regulated under the

plurality’s test if they, as is the case with those alleged

to exist on the Sacketts’ home site, see Pet. 6, 30-31,

lack a surface water connection to that channel.

Granting the Sacketts’ petition would thus allow the

Court to establish a single rule governing jurisdiction

for all wetlands alleged to be adjacent to regulated

waters.

Finally, EPA attempts to downplay the Sacketts’

predicament, contending that renewed enforcement

action against the Sacketts for their aborted

homebuilding is “improbab[le],” even while conceding

that “it is possible that a future dispute . . . may arise

concerning the status of the wetlands on [their]

property.”6 Resp. 23-24. As the Ninth Circuit correctly

noted, despite EPA’s withdrawal of the compliance

order, the “central dispute in this case remains

unresolved”—namely, “whether EPA can prevent

them from developing their property.” Pet. App. A-20.

If that was true below, when future activity on the site

would have been governed by the jurisdiction6

EPA suggests that the predicament was of the Sacketts’ own

making, citing the conclusion of a wetlands expert whom the

Sacketts had consulted. Resp. 4. But this consultation happened

after the allegedly illegal discharge had already occurred. See

Appellants’ ER 134-35, 9th Cir. Doc. No. 15-2 (May 23, 2007,

letter from Chantell Sackett to Army Corps). EPA also refers to

a pre-Rapanos jurisdictional determination for the site done

nearly a decade prior to the Sacketts’ purchase. Resp. 4. But the

Sacketts were not aware of the determination and, even if they

had been, it would have been of no moment given that such a

determination expires after five years. See Hawkes Co., 578 U.S.

at 595.

11

narrowing Navigable Waters Protection Rule, see Pet.

App. A-20, it is all the truer now given EPA’s

abandonment of that rule and reimposition (currently

de facto and perhaps soon de jure) of the very same

“pre-2015 regulatory regime,” 2021 Notice 7, that

underpinned the compliance order’s issuance against

the Sacketts, see Pet. 6 n.1. EPA’s argument against

review would therefore return the Sacketts to “the

same regulatory quagmire they have been in for the

past thirteen years,” Pet. App. A-16, inviting them

blindly to hope that the agency (or a third-party

citizen plaintiff) will never “drop the hammer.”

Sackett, 566 U.S. at 127. In contrast, a ruling on the

merits in the Sacketts’ favor would directly help the

Sacketts, for then “they would finally be on solid

ground when resuming construction.” Pet. App. A-16.

Such a ruling would also help the thousands of

landowners throughout the country who, for the last

15 years, have had “to feel their way,” Rapanos, 547

U.S. at 758 (Roberts, C.J., concurring), amid the

vicissitudes of continually changing guidance

documents and regulations—property owners who,

without this Court’s review, will be left “with little

practical alternative but to dance to the EPA’s tune,”

Sackett, 566 U.S. at 127, 132, lest they suffer the

“crushing” consequences, Hawkes, 578 U.S. at 602

(Kennedy, J., concurring), of getting crossways with

EPA’s latest articulation of its own authority.

12

Conclusion

The petition for writ of certiorari should be

granted.

DATED: November 2021.

ANTHONY L. FRANÇOIS

DAMIEN M. SCHIFF*

Briscoe, Ivester &

*Counsel of Record

Bazel LLP

CHARLES T. YATES

235 Montgomery Street,

Pacific Legal Foundation

Suite 935

555 Capitol Mall, Suite 1290

San Francisco, CA 94101

Sacramento, CA 95814

Telephone: (415) 402-2707 Telephone: (916) 419-7111

tfrancois@briscoelaw.net

DSchiff@pacificlegal.org

CYates@pacificlegal.org

PAIGE E. GILLIARD

Pacific Legal Foundation

3100 Clarendon Blvd.,

Suite 610

Arlington, VA 22201

PGilliard@pacificlegal.org

Counsel for Petitioners