Amicus Curiae Brief — Michael Sackett, et ux., Petitioners v. Environmental Protection Agency, et al.
Supreme Court briefJun 17, 2022
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Text
No. 21-454
In The
Supreme Court of the United States
MICHAEL SACKETT, ET UX.,
v.
Petitioners,
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, ET AL.,
Respondents.
On Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit
BRIEF OF AMICUS CURIAE
THE IDAHO CONSERVATION LEAGUE
IN SUPPORT OF RESPONDENTS
Cale Jaffe
Counsel of Record
Director, Envtl. L. & Community Engagement Clinic
University of Virginia School of Law
580 Massie Road
Charlottesville, VA 22903
cjaffe@law.virginia.edu
(434) 924-4776
Marie Callaway Kellner
Conservation Program Director
Idaho Conservation League
710 N. 6th Street
Boise, ID 83702
LANTAGNE LEGAL PRINTING
801 East Main Street Suite 100 Richmond VA 23219 (800) 847-0477
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................... ii
STATEMENT OF INTEREST OF AMICUS
CURIAE ................................................................. 1
SUMMARY OF ARGUMENT..................................... 3
ARGUMENT ............................................................... 6
I.
Priest Lake is the “Crown Jewel” of Idaho,
an International Tourist Destination, and
Part of the “Waters of the United States.” .......... 6
II. The Sackett Wetlands Have Long Been
Part of a Contiguous Aquatic Resource
that is Adjacent to Priest Lake. ......................... 11
III. The Sackett Wetlands are Jurisdictional
per Riverside Bayview Homes and its
Progeny. .............................................................. 19
IV. Several § 404 Permits Have Been Issued
in the Priest Lake Basin for Projects
Similar to the Sacketts Without Impeding
Development. .................................................... 25
CONCLUSION .......................................................... 29
ii
TABLE OF AUTHORITIES
CASES
County of Maui v. Hawaii Wildlife Fund, 140
S. Ct. 1462 (2020)........................................... 24, 25
Friends of the Earth, Inc. v. Gaston Copper
Recycling Corp., 204 F.3d 149 (4th Cir.
2000) ..................................................................... 11
Rapanos v. United States, 547 U.S. 715 (2006) ....... 24
Sackett v. EPA, 8 F.4th 1075, 1093 (9th Cir.
2021) ..................................................................... 16
Solid Waste Agency of N. Cook Cnty. v. United
States Army Corps of Eng'rs, 531 U.S. 159
(2001) ................................................................ 8, 24
U.S. Army Corps of Engineers v. Hawkes Co.,
Inc., 578 U.S. 590 (2016) ..................................... 25
United States v. Esso Standard Oil Co. of
Puerto Rico, 375 F.2d 621 (3d Cir. 1967) ............ 18
United States v. Riverside Bayview Homes,
474 U.S. 121 (1985) .......................................passim
STATUTES
33 U.S.C. §1251 ........................................... 4, 9, 11, 28
33 U.S.C. §1344 ............................................... 6, 18, 29
33 U.S.C. §1362 ................................................... 25, 30
iii
FEDERAL LEGISLATIVE AND
ADMINISTRATIVE MATERIALS
38 Fed. Reg. 13,527, 13,529 (May 22, 1973)............... 9
118 Cong. Rec. 33,692 (1972) .................................... 10
118 Cong. Rec. 36879 .................................................. 9
S. Rep. No. 92-1236, 144 (1972) ................................ 11
Final Rule, U.S. Army Corps of Eng'rs,
Reissuance and Modification of
Nationwide Permits, 86 Fed. Reg. 2744,
2861 (Jan. 13, 2021) ............................................. 26
U.S. Army Corps of Engineers Permit DA No.
NWW-2008-00222-C01 .............................. 5, 27, 28
U.S. Army Corps of Engineers Permit DA No.
NWW-2008-00454-C01 .................................. 27, 28
U.S. Army Corps of Engineers Permit DA No.
NWW-2021-00421 .......................................... 27, 28
U.S. Army Corps of Engineers Permit DA No.
NWW-2015-00409 .......................................... 27, 28
U.S. Army Corps of Engineers Permit DA No.
NWW-2010-00587-C03 .................................. 27, 28
U.S. Dep’t of Agriculture, U.S. Forest Service,
Northern Region, Draft Environmental
Impact Statement: Lakeview-Reeder Fuels
Reduction Project, (Jan. 2009) ............................. 17
iv
OTHER AUTHORITIES
90 Years of Tradition: Elkins Resort on Priest
Lake, Priest Lake Visitors Guide 20222023 ........................................................................ 7
A. K. Knox et al., Efficacy of Natural
Wetlands to Retain Nutrient, Sediment
and Microbial Pollutants, 37 J. of Env't
Quality 1837 (2008) ............................................. 19
Abby Urbanek, Conservation Program
Awards $150,000 for restoration projects in
Upper Salmon Basin, (May 3, 2022) ..................... 3
Advertisement, Oregonian, 9 Aug. 1917 .................... 7
Becca Rodack, ICL Launches North Idaho
Lakes Advocacy Program, (May 10, 2022) ............ 2
Becca Rodack, Trestle Creek: A rare hideaway
on Lake Pend Oreille, (September 21,
2021) ....................................................................... 2
Between Land & Water: The Wetlands of
Idaho, Idaho Dep’t of Fish and Game,
Nongame Wildlife Leaflet #9 (2nd Edition
2004) ..................................................................... 12
Bonner County, Geographic Information
Systems, (last visited June 13, 2022) .................. 16
Bonner County Interactive Map, (last visited
June 7, 2022) ........................................................ 16
v
Courtroom Friezes: South and North Walls,
(last visited June 14, 2022) ................................. 21
Dave A. Weixelman & David J. Cooper,
Assessing Proper Functioning Condition
for Fen Areas in the Sierra Nevada and
Southern Cascade Ranges in California, A
User Guide, U.S. Dept. of Ag. (2009)................... 12
Eric Schmitt, Pristine Priest Lake: High in
Idaho’s panhandle, boaters, campers and
fishermen share the country with whitetailed deer, blue heron and caribou. New
York Times (Aug. 21, 1994) ................................... 7
Gladwin Hill, The Polluted Potomac: Sewage
and Politics Create Acute Capital
Problem, New York Times (July 12, 1970) ........... 9
Guy V. Manning, The Extent of Groundwater
Jurisdiction Under the Clean Water Act
After Riverside Bayview Homes, 47. La. L.
Rev. 859 (1987) .................................................... 20
Idaho Conservation League, Our Staff, (last
visited June 8, 2022) .............................................. 1
Idaho Conservation League, What We’re
About, (last visited June 8, 2022) .......................... 1
Idaho Dep’t of Fish and Game, Fisheries
Bureau, Management Plan for the
Conservation of Westslope Cutthroat Trout
in Idaho, (Nov. 2013) ........................................... 16
vi
Jonathan Oppenheimer, New Protection for
the Salmon River!, (Jun. 3, 2016).......................... 3
Joseph S. Smith, et al., The seasonality of
nutrients and sediment in residential
stormwater runoff: Implications for
nutrient-sensitive waters, J. of Envtl.
Management, Vol. 276 (Dec. 15, 2020) ............... 29
Kevin J. Lyons, Kalispel Ethnohistoric Uses of
the Priest Lake Basin, Kalispel Natural
Resources Department (Feb. 2009) ....................... 6
Kevin M. Freeman, An evaluation of ground
water nutrient loading to Priest Lake,
Bonner County, Idaho (May 1995) ............ 4, 13, 18
Kris Smith & Tom Weitz, Wild Place: A
History of Priest Lake, Idaho (2015) ..................... 6
Madison Hardy, Titans of Tourism, Coeur
d’Alene Press (March 12, 2021) ............................. 8
Marie Kellner, U.S. Supreme Court navigates
tricky waters in Priest Lake wetlands case,
(June 15, 2022)............................................... 13, 27
Matthew Kincannon, Toxic blue-green algae
found at Priest Lake Outlet and Chuck
Slough, KXLY Broadcast Group (Aug. 27,
2021) ..................................................................... 29
Mary Garrison, The River Pigs of Logging,
Spokane Historical (2022) ..................................... 7
vii
Mike Sackett Inc. DBA: Sackett Contracting
& Excavating, Greater Sandpoint Chamber
of Commerce (last visited June 5, 2022) ............. 26
National Park Service, Wetland and
Watershed Restoration, (last visited Jun
15, 2022) ............................................................... 19
The Court Building, (last visited June 6,
2022) ..................................................................... 20
U.S. Fish and Wildlife Service, National
Wetlands Inventory: Wetlands Mapper,
(last visited June 7, 2022) ................................... 12
U.S. Fish and Wildlife Service, Wetlands Code
Interpreter, (last visited June 7, 2022) ................ 12
Western Native Trout Initiative, Application
for WNTI Funding (Oct. 7, 2016) .......................... 3
William W. Sapp et al., From the Fields of
Runnymede to the Waters of the United
States: A Historical Review of the Clean
Water Act and the Term "Navigable
Waters,", 36 Envtl. L. Rep. 10090 (2006) ............ 10
1
STATEMENT OF INTEREST
OF AMICUS CURIAE1
Amicus curiae the Idaho Conservation League
(“ICL”) maintains a statewide membership of over
11,000 individuals and has served as Idaho’s leading
conservation organization since 1973—just one year
after the Clean Water Act was enacted. ICL has long
been dedicated to working with fellow Idahoans
toward pragmatic, enduring solutions to the state’s
biggest environmental challenges. 2 As such, the
expert staff at ICL includes conservation biologists,
geologists, and resource managers working out of
four offices, including an office in Sandpoint, Idaho
approximately 19 miles southeast of Priest Lake.3
ICL has first-hand knowledge of the aquatic
resources adjacent to Priest Lake, including direct
familiarity with the wetlands that were unlawfully
filled on the Sackett property. Indeed, ICL has
decades of involvement in conservation efforts
throughout the Priest Lake area, an international
fishing and boating destination known for prizePetitioners have granted the Idaho Conservation League
consent to the filing of this brief pursuant to Rule 37, and
Respondents have filed a letter with the Clerk indicating
blanket consent to the filing of amicus briefs. No counsel for
any party authored this brief in whole or in part, and no person
or entity other than above-named amici curiae and their
counsel made a monetary contribution intended to fund its
preparation or submission.
1
See Idaho Conservation League, What
https://www.idahoconservation.org/who-we-are/
June 8, 2022).
3
See
Idaho
Conservation
League,
https://www.idahoconservation.org/about/staff/
June 8, 2022).
2
We’re About,
(last visited
Our
(last
Staff,
visited
2
winning cutthroat trout, lake trout, kokanee salmon
and other game fish.
Amicus curiae ICL has had success in leveraging
its local, biological expertise to conserve aquatic
resources essential to the health of navigable waters.
ICL operates a water quality monitoring program in
nearby Lake Pend Oreille, where ICL staff and
volunteers collect monthly samples to evaluate
eleven different biological, chemical, and physical
water quality parameters.4 This data is shared with
the Idaho Department of Environmental Quality and
the U.S. Environmental Protection Agency as part of
an effort to ensure compliance with water quality
standards promulgated under the Clean Water Act.
ICL also routinely participates in Clean Water
Act public comment opportunities. Within the last
year, ICL provided input to the U.S. Army Corps of
Engineers on a proposal to dredge and fill wetlands
for a marina and residential complex at the mouth of
Trestle Creek on Lake Pend Oreille. 5 ICL thus
benefits from the § 404 permitting process, which
has provided the organization’s members and
volunteers with the ability to highlight issues
affecting water quality and aquatic ecosystems at
an early and beneficial stage of project construction.
ICL successfully petitioned the U.S. Army Corps
of Engineers to recognize the Salmon River as
“navigable” under the Rivers and Harbors Act of
4 Becca
Rodack, ICL Launches North Idaho Lakes Advocacy
Program, https://www.idahoconservation.org/blog/icl-launchesnorth-idaho-lakes-advocacy-program/ (May 10, 2022).
5 Becca Rodack, Trestle Creek: A rare hideaway on Lake Pend
Oreille, https://www.idahoconservation.org/blog/trestle-creek-arare-hideaway-on-lake-pend-oreille/ (September 21, 2021).
3
ICL’s projects have also included
1899. 6
collaborative efforts with industry to promote
riparian preservation work adjacent to the East Fork
of the Salmon River, where “[c]hinook salmon,
steelhead and bull trout spawn and rear their
young.”7 Notably, ICL has partnered with the U.S.
Forest Service and others to restore wetlands in the
Priest Lake Basin to help recover bull trout
populations in the watershed.8
In short, ICL’s sustained efforts have helped
make it a trusted voice on environmental health and
conservation throughout Idaho and around Priest
Lake, particularly when it comes to protecting the
aquatic resources at issue in this case, which have
long been understood to be covered by the federal
Clean Water Act.
SUMMARY OF ARGUMENT
ICL has nearly half a century of involvement in
conservation efforts throughout Idaho and files this
brief as amicus curiae in support of Respondents to
share the organization’s first-hand expertise with
the aquatic resources of Priest Lake.
Jonathan Oppenheimer, New Protection for the Salmon
River!,
(Jun.
3,
2016),
https://www.idahoconservation.org/blog/new-protection-salmonriver/.
7 Abby Urbanek, Conservation Program Awards $150,000 for
restoration projects in Upper Salmon Basin, (May 3, 2022).
https://www.idahoconservation.org/blog/conservation-programawards-150000-for-restoration-projects-in-upper-salmon-basin/
8 Western Native Trout Initiative, Application for WNTI
Funding (Oct. 7, 2016), https://westernnativetrout.org/wpcontent/uploads/2019/07/2017-hughes-aquatic-restorationproject.pdf.
6
4
Part I of ICL’s argument highlights Priest Lake’s
prominence as the “Crown Jewel” of Idaho, one that
remains an iconic and international tourist
destination. It rests nestled in the heart of the
Selkirk Mountain Range and is a featured stop on
the International Selkirk Loop, connecting Idaho,
Washington, and British Columbia. Pristine water
quality is essential to the economic vitality of Priest
Lake, as the waters are home to native westslope
cutthroat trout, native bull trout, and support a
tourism industry dependent on fishing, boating,
swimming, and water skiing. Aquatic resources like
Priest Lake—along with the channels, tributaries,
wetlands, and streams that replenish it—are singled
out for protection in the text of the Clean Water Act.
33 U.S.C. 1251(a)(2).
Part II confirms that the Sackett wetlands must
be understood as “adjacent” to the lake because
groundwater from the wetlands flows into Priest
Lake. Indeed, a geological survey in the mid-1990s
measured groundwater flow from wetlands along
Kalispell Bay Road, which were draining into the
lake at a significant and sustained rate. See Kevin
M. Freeman, An evaluation of ground water nutrient
loading to Priest Lake, Bonner County, Idaho (May
1995), infra note 22. This groundwater connection is
buttressed by a surface-water connection between
the Kalispell Bay Fen and Priest Lake. Trout are
swimming up Kalispell Creek until they reach the
channelized tributary along Kalispell Road, and then
continuing until they reach spawning habitat in the
Kalispell Bay Fen. J.A. 28. Given the myriad
connections between the Sackett wetlands and the
lake, it is certain that dredging and filling would
5
have an adverse impact on downstream water
quality.
Part III compares the Sackett property to the
wetlands of United States v. Riverside Bayview
Homes, 474 U.S. 121 (1985), which were farther from
Lake St. Clair, Michigan than the Sackett wetlands
are from Priest Lake, Idaho. In Riverside Bayview
Homes, “the nearest water body [was] … more than
200 feet away, and that was a canal that ultimately
flowed into Black Creek.” Tr. of Oral Argument, at
34:2-4, United States v. Riverside Bayview Homes,
474 U.S. 121 (1985) (No. 84-701) (Oct. 16, 1985).
Black Creek drained into Lake St. Clair, which was
more distant still. True, the Riverside Bayview
Homes Court wrestled with a “continuum” among
aquatic features, 474 U.S. at 132, but that was not
because of any difficulty in identifying the shoreline
of Lake St. Clair, which stood hundreds of feet away.
The Court’s fundamental concern was with the
functioning of “aquatic ecosystems.” Id. at 132-33.
The “continuum” was hydrological, not geographical.
Finally, Part IV laments that it did not have to be
this way. Several § 404 permits have been issued in
the Priest Lake Basin for strikingly similar
residential projects. One such permit was requested
on March 26, 2008, one month before the Sacketts
filed their initial federal action. Pet. Br. 20. That
permit was speedily granted on May 14, 2008. See
U.S. Army Corps of Engineers Permit DA No. NWW2008-00222-C01, infra note 36. Instead of adhering
to the same rules as their neighbors, Petitioners
have pursued this litigation for the last 14 years. Yet
community-wide compliance with the § 404 program
is essential to conserving Priest Lake and is what
Congress intended when it authorized general
6
permits to ensure “only minimal cumulative adverse
effect on the environment.” 33 U.S.C. 1344(e)(1)
(emphasis added).
ARGUMENT
I. Priest Lake is the “Crown Jewel” of
Idaho,
an
International
Tourist
Destination, and Part of the “Waters of
the United States.”
Priest Lake is commonly known as “The Crown
Jewel” of Idaho and considered the most pristine of
the three great lakes of the Idaho Panhandle.
Carved out of the land 10,000 years ago by receding
glaciers, the lake served for thousands of years as
the summer home and harvesting spot for the
Kalispel Tribe, migratory indigenous people of the
Pacific Northwest. 9 The lake was colonized during
the mid-1800s, first by Jesuit missionaries and soon
after by miners, settlers, and loggers. 10 Logging
flourished into the 20th century, as white pines and
western red cedars could be splashed into the lake,
rounded up into booms, then sent down the Priest
River to lumber mills.11 The creeks, rivers, and lakes
9 Kevin J. Lyons, Kalispel Ethnohistoric Uses of the Priest Lake
Basin, Kalispel Natural Resources Department (Feb. 2009).
https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5
072901.pdf.
10 Kris Smith & Tom Weitz, Wild Place: A History of Priest
Lake, Idaho 3, 17 (2015).
11 Id. at 85.
7
served as the primary mode of transport for the
lucrative timber industry from 1900-1948.12
Out-of-state vacationers began traveling to
Priest Lake on horseback as early as the late 1800s.
At the turn of the twentieth century, the Great
Northern Railroad, which ran a line from Spokane to
the town of Priest River, began advertising Priest
Lake in its public relations campaigns, describing it
as a place of “real adventure” and “man’s-size
thrills.”13 Hotels and cabin rentals popped up along
the shore, and steamboat businesses came online to
carry tourists to the remote upper reaches of the
lake. Silent screen starlet Nell Shipman spent three
years producing short films by the water. By the
mid-twentieth century, tourism began to replace
logging as the region’s primary revenue driver.
More recently, the 23,000-acre lake has earned a
reputation as an international tourist destination for
fishing, boating, canoeing, and all manner of outdoor
sports.14 As described by one travel writer, “It’s like
a skinny Lake Tahoe—with a lot less people.” 15
Priest Lake is particularly renowned for its
mackinaw and cutthroat trout, which draw anglers
Mary Garrison, The River Pigs of Logging, Spokane
Historical (2022) https://spokanehistorical.org/items/show/587.
13 Advertisement, Oregonian, 9 Aug. 1917, at 19.
14 90 Years of Tradition: Elkins Resort on Priest Lake, Priest
Lake Visitors Guide 2022-2023, 32. https://priestlake.org/priestlake-visitor-guide/.
15 Eric Schmitt, Pristine Priest Lake: High in Idaho’s
panhandle, boaters, campers and fishermen share the country
with white-tailed deer, blue heron and caribou. New York
Times (Aug. 21, 1994).
12
8
year-round. Situated just eighteen miles south of the
Canadian border, the lake marks a highlight along
the International Selkirk Loop, North America’s only
multi-national scenic drive. And at two hours from
Spokane, the lake offers an easy day trip for
Washington travelers. In 2021, Idaho boasted one of
the fastest tourism industry recoveries in the United
States. 16 Priest Lake sits at the center of the five
Panhandle counties that saw the largest tourism
revenue increases in Idaho.
Amicus curiae the National Association of Home
Builders (“NAHB”) incorrectly theorizes that even
Priest Lake, with its impact on interstate (and even
international) commerce, is not part of the “waters of
the United States” protected by the Clean Water Act
unless it “unites with other waters to form a
continued highway over which interstate commerce
is or may be carried on with other states or foreign
countries.” See Br. of Amicus NAHB 20, 34. This
argument ignores the public’s use of Priest Lake for
fishing, boating, and other tourism-industry
pursuits, all of which squarely places Priest Lake
within the category of navigable-in-fact waters
protected by the Clean Water Act. See Solid Waste
Agency of N. Cook Cnty. v. United States Army Corps
of Eng’rs, 531 U.S. 159, 168 (2001) (SWANCC). The
NAHB’s argument also cannot be squared with the
literal text of the Clean Water Act, which requires
Respondents to “provide[] for the protection and
16 Madison
Hardy, Titans of Tourism, Coeur d’Alene Press
(March
12,
2021),
https://cdapress.com/news/2021/mar/12/north-idaho-tourism/.
9
propagation of fish, shellfish, and wildlife and
provide[] for recreation in and on the water…” 33
U.S.C. 1251(a).
If the only purpose of the Act was to ensure the
safe passage of ships over “waters” that form “a
highway ‘over which commerce is or may be carried
on with other States or foreign countries,’” Br. of
Amicus NAHB 10, then references to fish, shellfish,
and recreation would be meaningless. Indeed, in its
first regulations following the passage of the Clean
Water Act in 1972, the Environmental Protection
Agency identified at least three categories of wholly
intrastate navigable-in-fact waters that merited
protection. See 38 Fed. Reg. 13,527, 13,529 (May 22,
1973).
It is useful to remember what America’s waters
looked like in the early 1970s, shortly before
Congress passed the Clean Water Act with
bipartisan majorities in both the House and the
Senate. 17 One 1970 news report captured the
urgency of the pollution problem: “The heat of
summer is enveloping the nation’s capital, and with
it has come the annual resurgence of a problem
residents have come increasingly to dread: A
stomach-turning miasma rising from the Potomac
River.” 18 The story went on to cite a federal
17 See 118 Cong. Rec. 36879 (Senate vote of 52 to 12 to override
veto of the 1972 bill); id. at 37060-61 (House vote of 247 to 23).
Hill, The Polluted Potomac: Sewage and Politics
Create Acute Capital Problem, New York Times (July 12,
1970), https://www.nytimes.com/1970/07/12/archives/the18 Gladwin
10
government report that documented how “sludge
deposits have blanketed fish spawning grounds,”
leading to “obnoxious odors when uncovered by ebb
tide.” Id.
Presidents Johnson and Nixon both made efforts
at leveraging the Rivers and Harbors Act of 1899 to
address this water contamination crisis, first
through the Water Quality Act of 1965 and then via
the Refuse Act of 1970. Neither proved successful.
See William W. Sapp et al., From the Fields of
Runnymede to the Waters of the United States: A
Historical Review of the Clean Water Act and the
Term “Navigable Waters,” 36 Envtl. L. Rep. 10090,
10201 (2006).
Thus, the Clean Water Act deliberately broke
with the Rivers and Harbors Act of 1899. When
Senator Edmund Muskie introduced the Conference
Report for the Clean Water Act in 1972, he framed
the bill as a new “treatment” for the problem of
water pollution “which will not respond to the kind
of treatment that has been prescribed in the past.”
118 Cong. Rec. 33,692 (1972) (statement of Sen.
Muskie). A new threat demanded a broader
jurisdictional purview, which is why the Senate
Conference Report emphasized an expansive reach
for the new legislative text: “The conferees fully
intend that the term ‘navigable waters’ be given the
broadest possible constitutional interpretation
unencumbered by agency determinations which have
polluted-potomac-sewage-and-politics-create-acutecapital.html.
11
been made or may be made for administrative
purposes.” S. Rep. No. 92-1236, 144 (1972).
Simply put, Congress was explicit that the Clean
Water Act would do far more than protect the
interstate transport of goods via riverboat. 33 U.S.C.
1251(a). “One of the well-recognized aims of the Act
is to ensure that the nation’s waters are ‘fishable
and swimmable.’” Friends of the Earth, Inc. v.
Gaston Copper Recycling Corp., 204 F.3d 149, 156
(4th Cir. 2000) (Wilkinson, C.J., delivering the
opinion for an en banc court). Protecting the “Crown
Jewel” of Idaho unquestionably falls within the
heartland of aquatic resources—i.e., lakes, rivers,
streams, wetlands and tributaries—covered by the
Act.
II. The Sackett Wetlands Have Long Been
Part of a Contiguous Aquatic Resource
that is Adjacent to Priest Lake.
The controversy involving the Sackett wetlands
began when Petitioners discharged sand and gravel
(i.e., fill material) into “wetlands adjacent to Priest
Lake” to build up a “housing pad” on which they
might construct a residence. J.A. 11-12. Of course,
the only reason “fill material” was needed was
because “there [was] water there.” J.A. 10.
Petitioners wanted to build a house—not a
houseboat.
The Sackett property, 1604 Kalispell Bay Road,
sits north of Kalispell Creek’s inflow to the western
shores of Priest Lake and is part of the broader
Kalispell Bay Fen, which the U.S. Fish and Wildlife
12
Service has classified as a nontidal wetland. 19
Idahoans have long recognized that fens play an
important role in “water quality improvement,”
filtering out “nutrients or pollutants such as
fertilizers or pesticides” before they reach
downstream waters. Between Land & Water: The
Wetlands of Idaho, Idaho Dep’t of Fish and Game,
Nongame Wildlife Leaflet #9 (2nd Edition 2004). 20
Dredging and filling of a fen is no small matter, as
fens “require thousands of years to develop and
cannot easily be restored once destroyed.”21
Of special relevance to this case is a geological
survey documenting wetlands along Kalispell Bay
Road that drain via groundwater directly into Priest
Lake. Readings taken from “deep (existing) wells …
The Kalispell Bay Fen is predominantly classified as
“PSS1C,” meaning that “[s]urface water is present for extended
periods especially early in the growing season….” Pockets of
the wetland are designated as “PEM1F,” meaning that
“[s]urface water persists throughout the growing season in
most years.” See U.S. Fish and Wildlife Service, Wetlands Code
Interpreter, fwsprimary.wim.usgs.gov/decoders/wetlands.aspx
(last visited June 7, 2022); U.S. Fish and Wildlife Service,
National
Wetlands
Inventory:
Wetlands
Mapper,
www.fws.gov/program/national-wetlands-inventory/wetlandsmapper (last visited June 7, 2022).
20 The Idaho Department of Fish and Game’s publication is
available
online
at
https://idfg.idaho.gov/oldweb/docs/wildlife/nongame/leafletWetlands.PDF.
21 Dave A. Weixelman & David J. Cooper, Assessing Proper
Functioning Condition for Fen Areas in the Sierra Nevada and
Southern Cascade Ranges in California, A User Guide, U.S.
Dept.
of
Ag.,
ii
(2009).
https://www.researchgate.net/publication/289538937_Assessing
_Proper_Functioning_Condition_for_Fen_Area_in_the_Sierra_
Nevada_and_Southern_Cascade_Ranges_in_California.
19
13
indicate[d] ground water flows to Priest Lake from
the deeper portion of the aquifer.”22 The impact on
water levels in Priest Lake was sustained and
significant: “Hydraulic data … demonstrate[d]
ground water flow into Priest Lake, with flow rates
from 9 to 13 [feet per day] in the Kalispell Bay
area.”23
Fig. 1: Water level elevation contour map for the deep
portion of the aquifer, Kalispell Bay study area. 24
[IMAGE ON FOLLOWING PAGE]
22 Kevin M. Freeman, An evaluation of ground water nutrient
loading to Priest Lake, Bonner County, Idaho, at 43 (May 1995)
(M.S. Thesis, University of Idaho) (emphasis added),
https://www.dropbox.com/s/218tuyk0qjrzg9n/Priest%20Lake%2
0Thesis_Freeman_1995-compressed.pdf?dl=0.
23 Kevin M. Freeman, An evaluation of ground water nutrient
loading to Priest Lake, Bonner County, Idaho (May 1995) (M.S.
Thesis,
University
of
Idaho),
https://www.proquest.com/georef/docview/2360612690/FCC38D
CF0EE433APQ/1?accountid=14678.
24 Freeman, supra n. 22. See also Marie Kellner, U.S. Supreme
Court navigates tricky waters in Priest Lake wetlands case,
https://www.idahoconservation.org/blog/supreme-courtnavigates-priest-lake/ (June 15, 2022) (including an embedded
link to the Freeman thesis).
14
Clear
data
showing
that
groundwater
replenishes Priest Lake is not surprising, given that
the total distance from the Kalispell Bay Fen to the
lake is remarkably short: “It is approximately 300
linear feet from the southern edge of the Sackett
wetland to the discharge pipes and Priest Lake.” J.A.
29. Prior to the construction of roads in the area, the
Kalispell Bay Fen was one, contiguous wetland
flowing all the way to the shore of Priest Lake. J.A.
30-31. U.S. Geological Survey maps demarcate the
fen as such.
15
Fig. 2: Topographic map – USGS Priest Lake SW,
Idaho.25
Geographic Information Systems (“GIS”) data
from the local government in Bonner County, Idaho
also show contiguous wetlands and surface water
(appearing brownish in color) along with the
unnamed, channelized tributary and Kalispell Creek
(highlighted in blue). Surface water is often present
in Kalispell Bay Fen.
25 J.A. 45.
16
Fig. 3: Aerial View, Kalispell Bay Fen, Priest Lake.26
In addition to a significant, groundwater
connection to Priest Lake, the wetland also drains
into the unnamed, channelized tributary which feeds
into Kalispell Creek and flows into Priest Lake.
Sackett v. EPA, 8 F.4th 1075, 1093 (9th Cir. 2021).
Kalispell Creek is a major tributary to Priest Lake
that supports native westslope cutthroat trout. 27 A
Bonner
County
Interactive
Map,
cloudgisapps.bonnercountyid.gov/public/ (last visited June 7,
2022) (altered to add labels for “Kalispell Bay Fen,” “Sackett
Wetlands,” and “Priest Lake”). See also Bonner County,
Geographic
Information
Systems
(GIS),
www.bonnercountyid.gov/departments/GIS (last visited June
13, 2022).
26
Idaho Dep’t of Fish and Game, Fisheries Bureau,
Management Plan for the Conservation of Westslope Cutthroat
27
17
wetland ecologist with the Environmental Protection
Agency confirmed the presence in the Kalispell Bay
Fen of a “relatively large trout (perhaps 14 inches) …
near the upstream end of the outlet stream.” J.A. 28.
The same report explains that the “outlet stream”
leads “from the wetland on the north side of
Kalispell Bay Road to Kalispell Creek,” i.e., above
the Sackett wetlands as water drains southward to
Priest Lake. J.A. 30. In layperson’s terms, trout are
swimming up Kalispell Creek until they reach the
channelized tributary adjacent to Kalispell Road,
and then continuing until they reach spawning
habitat in the Kalispell Bay Fen.
Evidence that trout are breeding in the fen is
consistent with observations by the U.S. Forest
Service,
which
has
studied
fish
habitat
fragmentation along Kalispell Creek due to the
construction of roads. “While a handful of these
‘road-stream’ intersections are easily negotiated by
individual fish desiring to move upstream or
downstream within a stream to access important
spawning or rearing habitat, several are not.”28 The
Forest Service further identified wetlands and a
tributary just north of Kalispell Creek that function
as fish-bearing waters (i.e., Riparian Habitat
Trout
in
Idaho,
at
25,
Table
4
(Nov.
2013),
https://idfg.idaho.gov/oldweb/docs/fish/planWestslopeCutthroat.pdf.
28 U.S. Dep’t of Agriculture, U.S. Forest Service, Northern
Region, Draft Environmental Impact Statement: LakeviewReeder Fuels Reduction Project, at 3-292 (Jan. 2009),
https://www.fs.usda.gov/project/?project=6258.
18
Conservation Areas or “RHCA”). 29 These aquatic
resources are explicitly protected in the text of the
Clean Water Act. 33 U.S.C. 1344(c) (requiring a
permit for the discharge of dredged or fill material to
avoid “an unacceptable adverse effect on … fishery
areas (including spawning and breeding areas),
wildlife, or recreational areas.”).
Petitioners concede that even an overly
restrictive interpretation of “navigable waters” from
the Rivers and Harbors Act of 1899 would cover
“activities not in the waters … but nonetheless
affecting them,” Pet. Br. 35, (citing United States v.
Esso Standard Oil Co. of Puerto Rico, 375 F.2d 621
(3d Cir. 1967)). Esso had argued that “the
remoteness of its activities from the shoreline
isolate[d] it from liability under the Act,” but the
Third Circuit found that the law did “reach ‘indirect’
deposits of refuse in navigable water.” 375 F.2d at
623.
In light of the more expansive definition of
“navigable waters” used in the Clean Water Act,
supra p. 10, the presence of trout above the Sackett
property in the Kalispell Bay Fen, J.A. 28, and the
confirmation of groundwater flowing from Kalispell
Bay Road to Priest Lake 30 are critically important
details. Together, they confirm a significant, gravityfed, hydrological connection between the Sackett
wetlands and Priest Lake. That connection is vital,
29 Id. at 3-302, Figure 3-48.
30 Kevin M. Freeman, An evaluation of ground water nutrient
loading to Priest Lake, Bonner County, Idaho, supra note 22.
19
as a “healthy wetland can actually catch and hold
pollutants and other runoff materials before they
reach a lake, river, or ocean.”31 Together, these facts
dispel any question as to whether upstream
discharges at the Sackett Property adversely impact
Priest Lake.
III. The Sackett Wetlands are Jurisdictional
per Riverside Bayview Homes and its
Progeny.
This Court’s foundational precedent on § 404
jurisdiction, United States v. Riverside Bayview
Homes, 474 U.S. 121 (1985), compels a finding that
the Sackett wetlands are jurisdictional aquatic
resources and included as “waters of the United
States” under the Clean Water Act. Indeed, the
similarities between the Sackett wetlands and the
Riverside Bayview Homes wetlands are astounding.
Given these similarities, it would be impossible to
find the Sackett property outside the purview of
Clean Water Act conservation without overruling
Riverside Bayview Homes.
Petitioners fail to appreciate their conflict with
Riverside Bayview Homes because they misconstrue
the underlying details of that case, erroneously
describing the Riverside Bayview Homes wetlands as
“immediately adjacent to navigable-in-fact water.”
31 National Park Service, Wetland and Watershed Restoration,
https://www.nps.gov/subjects/oceans/wetland-watershed.htm,
(last visited Jun 15, 2022). See also A. K. Knox et al., Efficacy of
Natural Wetlands to Retain Nutrient, Sediment and Microbial
Pollutants, 37 J. of Env’t Quality 1837 (2008) (“Wetlands can
provide important benefits to water quality by retaining or
transforming pollutants such as nutrients, sediments,
pathogens, pesticides, and trace metals”).
20
Pet. Br. 13. That is incorrect. In fact, “the nearest
water body” to the wetlands was “more than 200 feet
away, and that was a canal that ultimately flowed
into Black Creek.” Tr. of Oral Argument, at 34:2-4,
United States v. Riverside Bayview Homes, 474 U.S.
121 (1985) (No. 84-701) (Oct. 16, 1985). Lake St.
Clair was farther away still.
Counsel to respondents in Riverside Bayview
Homes was asked, “[A]s far as adjacency is
concerned, would you say this is neighboring?” He
responded, “I would say it is not far away,”
provoking laughter in the courtroom. Id. at 42:8-13.
The Riverside Bayview Homes Court’s summary of
facts referenced the property as “80 acres of lowlying, marshy land near the shores of Lake St.
Clair,” rather than “on” or “abutting” the lake. 474
U.S. at 124 (emphasis added). Thus, one commenter
at the time explained:
Riverside’s property was not connected
in any visible way to the streams
feeding into Lake St. Clair. Surface
flooding
seldom
occurred.
The
landbridge [sic] between the property
and the streams was as much as 200
feet wide in places.
Guy V. Manning, The Extent of Groundwater
Jurisdiction Under the Clean Water Act After
Riverside Bayview Homes, 47. La. L. Rev. 859, 87273 (1987) (footnote omitted).
In comparison, the Sackett wetlands have a far
stronger claim to adjacency. As noted above, they sit
only 300 feet from Priest Lake, or roughly the width
of the Supreme Court Building. The Court Building,
www.supremecourt.gov/about/courtbuilding.pdf, (last
21
visited June 6, 2022) (noting the width as “304 feet
from north to south”). Even closer is the unnamed
channelized tributary that feeds into Priest Lake. It
flows just 30 feet from Petitioners’ property, Resp.
Br. 3, or markedly less than the length of the friezes
inside the Supreme Court courtroom. Courtroom
Friezes:
South
and
North
Walls,
www.supremecourt.gov/about/northandsouthwalls.p
df (last visited June 14, 2022) (listing dimensions of
40 feet by 7 feet, 2 inches for each frieze). A
comparison of overhead depictions of the Sackett
wetlands, supra Figure 3, p. 15, and the Riverside
Bayview Homes wetlands further cements the
parallels between these cases.
Fig. 4: Riverside’s Property (center) and Lake St.
Clair (right).32
[IMAGE ON FOLLOWING PAGE]
32 Pet. Br. 19a, United States v. Riverside Bayview Homes, 474
U.S. 121 (1985) (No. 84-701).
22
Relying on an improper understanding of
Riverside
Bayview
Homes’
factual
history,
Petitioners go on to misstate the legal question
undergirding this Court’s analysis. The Court did, of
course, list several aquatic features—“shallows,
marshes, mudflats, swamps, bogs”—and remark,
“Where on this continuum to find the limit of
‘waters’ is far from obvious.” 474 U.S. at 132. From
this observation, Petitioners wrongly present
Riverside Bayview Homes as a case about a “linedrawing ambiguity raised by the Act’s regulation of
23
‘waters’,” as if there had been some confusion about
where to mark the shoreline of Lake St. Clair in
Detroit. Pet. Br. 14. There was no such confusion.
The jurisdictional wetlands in that case: (1) stood
at least 200 feet away from a canal; (2) relied on the
canal to drain into Black Creek; and (3) relied on
Black Creek flowing into Lake St. Clair. There was
absolutely no trouble distinguishing the wetlands
from Black Creek or the lake.
The Court’s fundamental concern was with the
role that wetlands play in water quality protection.
The “continuum” the Court discussed was
hydrological, not geographical. Because management
of those wetlands was “inseparably bound up” with
water quality in the lake, they were found to be
protected by the Clean Water Act as an integral part
of the “waters of the United States.” Riverside
Bayview Homes, 474 U.S. at 134.
Thus, the Riverside Bayview Homes Court
focused its analysis on the problem of pollution
conveyance between wetlands and navigable waters.
Relying on the Act’s text and legislative history, the
Court endorsed the Corps’ “broad, systemic view of
the goal of maintaining and improving water
quality,” and took special note of the “congressional
concern for protection of water quality and aquatic
ecosystems….” 474 U.S. at 132-33.
The takeaway here is that the Riverside Bayview
Homes Court took a practical view of § 404, focusing
on what happens downstream of jurisdictional
wetlands.
This real-world concern provides a
24
throughline for understanding all the Court’s major
Clean Water Act cases. In Solid Waste Agency of N.
Cook County (SWANCC) v. U.S. Army Corps of
Engineers, 531 U.S. 159 (2001), the Court
unambiguously connected the “inseparably bound”
analysis from Riverside Bayview Homes to the
“significant nexus” test:
We found that Congress’ concern for the
protection of water quality and aquatic
ecosystems indicated its intent to
regulate wetlands “inseparably bound
up with the ‘waters’ of the United
States.”
It was the significant nexus between
the wetlands and “navigable waters”
that informed our reading of the CWA
in Riverside Bayview Homes.
531 U.S. at 167 (internal citation omitted) (emphasis
added).
Justice Kennedy’s opinion in Rapanos v. United
States, 547 U.S. 715, 769 (2006), also relied on a
practical application of the text to reaffirm a
significant nexus test, noting that a “permanent
standing water or continuous flow” test would make
“little practical sense in a statute concerned with
downstream water quality.” And in County of Maui
v. Hawaii Wildlife Fund, 140 S.Ct. 1462, 1470
(2020), this Court rejected calls to adopt a “brightline test” that would “have consequences that are
inconsistent with major congressional objectives, as
25
revealed by the statute’s language, structure, and
purposes.” 140 S.Ct. at 1470, 1477. 33 The Court
approvingly cited EPA’s practice of applying “the
permitting provision to some (but not to all)
discharges through groundwater for over 30 years.”
Id. at 1477.
Thus, for nearly four decades, this Court’s Clean
Water Act jurisprudence has emphasized the
pragmatic: a strong, science-based focus on what
happens downstream.
IV. Several § 404 Permits Have Been Issued
in the Priest Lake Basin for Projects
Similar to the Sacketts Without
Impeding Development.
Petitioners argue that they “set out to build a
modest family home” above the shores of Priest Lake
when their plans were derailed by Clean Water Act
permitting requirements. Pet. Br. 4. Yet this claim
ignores similarly situated property owners, who
sought and received § 404 permits on the way to
successfully completing their construction projects.34
33 County
of Maui, of course, considered a distinct question
based on the meaning of “point source” in 33 U.S.C.
1362(12)(A).
34 The
argument that permitting would be “time-consuming
and expensive,” Pet. Br. 10, mistakenly relies on this Court’s
decision in U.S. Army Corps of Engineers v. Hawkes Co., Inc.,
578 U.S. 590 (2016), which involved the effort by three different
companies to extract commercially valuable peat from “a 530–
acre tract near their existing mining operations.” 578 U.S. at
595-96, a far more intensive operation that understandably
incurred higher permitting costs.
26
It may be that Petitioners were familiar with at least
some of these projects, given their expertise and
experience in the construction industry.35
Speedy approvals have been routinely granted for
residential projects, in large part because the U.S.
Army Corps of Engineers’ Nationwide Permit 29
(“NWP 29”) allows for “[d]ischarges of dredged or fill
material into non-tidal waters of the United States
for the construction or expansion of a single
residence….” Final Rule, U.S. Army Corps of Eng’rs,
Reissuance and Modification of Nationwide Permits,
86 Fed. Reg. 2744, 2861 (Jan. 13, 2021). NWP 29
specifies that the Corps will “authorize[] the
construction of building foundations and building
pads and attendant features that are necessary for
the use of the residence or residential development.”
Id.
The Sackett’s single-family residence would have
faced a far easier path to permitting than they
suggest, given that “just under ½ acre ha[d] been
filled” and NWP 29 streamlines permitting if a
discharge does not “cause the loss of greater than ½acre of non-tidal waters of the United States.” J.A.
15; 86 Fed. Reg. at 2861.
See Mike Sackett Inc. DBA: Sackett Contracting &
Excavating, Greater Sandpoint Chamber of Commerce, at
http://members.sandpointchamber.org/list/member/mikesackett-inc-dba-sackett-contracting-excavating-priest-lake-601
(listing expertise in “[e]xcavating, water and sewer systems,
subdivisions”) (last visited June 5, 2022).
35
27
A review of records on file with the U.S. Army
Corps of Engineers, Walla Walla District, confirms
that several projects have been greenlighted under
NWP 29 in the Priest Lake Basin.36 These include:
Authorizing the crossing of a marsh area to
access a home site (DA No. NWW-2008-00454C01);
Discharging material to construct a road and
a sewer main through wetlands (DA No.
NWW-2008-00222-C01);
Discharging 400 cubic yards of rock into
wetlands adjacent to Priest River for the
purpose of constructing a new residential
driveway (DA No. NWW-2021-00421);
Filling one-tenth of an acre of wetlands to
complete an access road and build an RV pad
(DA No. NWW-2015-00409);
Obtaining pre-application guidance for a
permanent structure in possible wetlands (DA
No. NWW-2010-00587-C03).
The timeline for receiving each of these NWP 29
permits was usually a matter of just a few weeks or
months:
36 Amicus curiae ICL obtained a spreadsheet of § 404 permits
issued in the Priest Lake Basin from the U.S. Army Corps of
Engineers, Walla Walla District, via public records request,
https://www.dropbox.com/s/3ut5j2tkrl1a8xi/Copy%20of%20ACO
E%20permits%20by%20huc%208%2017010215.xlsx?dl=0. See
also Marie Kellner, U.S. Supreme Court navigates tricky waters
in
Priest
Lake
wetlands
case,
https://www.idahoconservation.org/blog/supreme-courtnavigates-priest-lake/ (June 15, 2022) (including an embedded
link to the spreadsheet of § 404 permits).
28
DA No. NWW-2008-00454-C01: Beginning
Date of June 17, 2008; Ending Date of
June 24, 2008;
DA No. NWW-2008-00222-C01: Beginning
Date of March 26, 2008; Ending Date of
May 14, 2008;
DA No. NWW-2021-00421: Beginning Date
of August 9; Ending Date of October 29,
2021;
DA No. NWW-2015-00409: Beginning Date
of August 21, 2015; Ending Date of
September 29, 2015;
DA No. NWW-2010-00587-C03: Beginning
Date of November 5, 2010; Ending Date of
November 29, 2010.
Even after the Sacketts unlawfully dumped sand
and gravel into aquatic resources, a permit under
NWP 29 might still have been readily available. See,
e.g., DA No. NWW-2012-00293-C03 (U.S. Army
Corps of Engineers permit issued in the Priest Lake
Basin for unauthorized fill of wetlands) (Beginning
Date of Aug. 28, 2012; Ending Date of Sept. 21,
2012).
Petitioners were simply asked to adhere to the
same rules that their neighbors had already followed
to ensure that the iconic waters of Priest Lake
remain protected for all of them to enjoy. See 33
U.S.C. 1251(a)(2). Community-wide compliance is
vital to ensuring the ecological health and economic
vitality of the Priest Lake area. It is also what
Congress envisioned when it authorized the issuance
of general permits to ensure “only minimal
29
cumulative adverse effect on the environment.” 33
U.S.C. 1344(e)(1) (emphasis added).
Parts of Priest Lake have already faced public
health advisories due to toxic, blue-green algal
blooms.37 Such blooms have been linked to the kind
of stormwater, wastewater, and nutrient pollution
problems that § 404 seeks to prevent. 38 Concern
about these pollution problems is especially
warranted here, given that the aquatic resources on
the Sackett property are inextricably intertwined
with the health of Priest Lake. There is: (1)
groundwater flow into Priest Lake from the Kalispell
Bay Fen, which includes the Sackett wetlands; (2) a
surface-water connection for much of the year
between Priest Lake and the Kalispell Bay Fen; and
(3) the presence of trout in wetlands above the
Sackett property. All these facts support
Respondents’ finding of a “significant nexus”
between the wetlands and Priest Lake.
CONCLUSION
Amicus curiae ICL has a significant interest in
the conservation of Priest Lake and has worked
since the earliest days of the Clean Water Act on
37 Matthew Kincannon, Toxic blue-green algae found at Priest
Lake Outlet and Chuck Slough, KXLY Broadcast Group (Aug.
27, 2021), https://www.kxly.com/toxic-algae-found-at-priestlake-outlet-and-chuck-slough/.
38 Joseph S. Smith, et al., The seasonality of nutrients and
sediment in residential stormwater runoff: Implications for
nutrient-sensitive waters, J. of Envtl. Management, Vol. 276
(Dec.
15,
2020),
at
111248,
https://www.sciencedirect.com/science/article/pii/S03014797203
11725.
30
water quality protection throughout the state of
Idaho. In defense of these interests, amicus curiae
asks the Court to affirm Respondents’ welldocumented finding that the Sackett wetlands are
protected as part of the “waters of the United
States,” 33 U.S.C. 1362(7).
Respectfully submitted,
Cale Jaffe
Counsel of Record
Director, Envtl. L. & Community Engagement Clinic
University of Virginia School of Law
580 Massie Road
Charlottesville, VA 22903
cjaffe@law.virginia.edu
(434) 924-4776
Marie Callaway Kellner
Conservation Program Director
Idaho Conservation League
710 N. 6th Street
Boise, ID 83702
DATED: June 17, 2022
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.