Record and brief — Sackett v. Epa

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SUPREME COURT

OF THE UNITED STATES

AGE

we:

No. 10-1062

Title: Chantell Sackett, et vir, Petitioners

Environmental Protection Agency, et al

Docketed: February 25, 2011

Lower Ct: United States Court of Appeals for the Ninth Circuit

Case Nos.: (08-35854)

Decision Date: September 17, 2010

Rehearing Denied: November 29, 2010

Questions

Presented

~~~Date~~~ ~~~~~~~Proceedings and Orders

Feb 23 2011 Petition for a writ of certiorari filed. (Response due March 28, 2011)

Mar 2 2011 Consent to the filing of amicus briefs, in support of either party or of neither party,

received from counsel for the petitioners.

Mar 23 2011 Order extending time to file response to petition to and including April 27, 2011

Mar 25 2011 Brief amici curiae of Center for Constitutional Jurisprudence et al. filed

Mar 28 2011 Brief amicus curiae of American Civil Rights Union filed.

Mar 28 2011 Brief amici curiae of National Association of Home Builders, et al. filed.

Apr 20 2011 Order further extending time to file response to petition to and including May 27, 2011

Apr 25 2011 Letter of April 21, 2011, from counsel for petitioners received.

May 27 2011 Brief of respondents Environmental Protection Agency, et al. in opposition filed.

Jun 32011 Reply of petitioner Chantell Sackett, et vir filed.

Jun7 2011 DISTRIBUTED for Conference of June 23, 2011.

Jun 23 2011 DISTRIBUTED for Conference of June 27, 2011.

Jun 28 2011 Petition GRANTED limited to the following 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 petitioners inability to

seek pre-enforcement judicial review of the administrative compliance order violate their

rights under the Due Process Clause?

Jul62011 ~The time to file the joint appendix and petitioners’ brief on the merits is extended to and

including September 26, 2011.

Jul6 2011 = The time to file respondents’ brief on the merits is extended to and including November

23, 2011.

Sep 23 2011 Joint appendix filed. (Statement of costs filed)

Sep 23 2011 Brief of petitioners Chantell Sackett, et vir filed.

Sep 29 2011 Brief amici curiae of Wet Weather Partnership, et al. filed.

Sep 30 2011

Oct 3 2011

Nov 14 2011

Nov 15 2011

Nov 18 2011

Nov 23 2011

Nov 30 2011

Dec 9 2011

Dec 15 2011

Dec 21 2011

Jan 6 2012

Jan 9 2012

Mar 21 2012

Apr 23 2012

Brief amici curiae of Center for Constitutional Jurisprudence, et al. filed.

Brief amici curiae of National Association of Home Builders, et al. filed

Brief amici curiae of American Farm Bureau Federation, et al. filed.

Brief amicus curiae of Institute for Justice filed.

Brief amicus curiae of General Electric Co. filed.

Brief amicus curiae of Competitive Enterprise Institute filed.

Brief amicus curiae of Chamber of Commerce of the United States of America filed.

Brief amicus curiae of American Civil Rights Union filed.

Brief amicus curiae of National Association of Manufacturers filed

Brief amicus curiae of Mountain States Legal Foundation filed

Brief amici curiae of Alaska, et al. filed.

Letter from counsel for amici American Petroleum Institute, et al. proposing to lodge

documents related to the Clean Water Act.

Brief amici curiae of American Petroleum Institute, et al. filed.

Brief amicus curiae of APA Watch in support of neither party filed

SET FOR ARGUMENT ON Monday, January 9, 2012.

CIRCULATED.

Record received from U.S.C.A. for 9th Circuit. (1 envelope)

Record from U.S.D.C for District of Idaho is electronic.

Brief of respondents Environmental Protection Agency, et al. filed. (Distributed)

Letter from Natural Resources Defense Counsel, et al., proposing a lodging of relevant

FOIA material obtained from the Army Corps of Engineers.

Motion for leave to file amici brief filed by Natural ResourcesDefense Council, et al.

(Distributed)

Petitioners’ opposition to motion of Natural Resources Defense Council, et al. for leave

to file a brief as amici curiae.

Petitioners’ objection to lodging proposal of Natural Resource Defense Council, et al

Reply of Natural Resource Defense Council, et al. to petitioners’ opposition to motion to

file amici curiae brief.

Reply of Natural Resource Defense Council, et al. to petitioners’ opposition to lodging

proposal.

Reply of petitioners Chantel! Sackett, et vir filed. (Distributed)

Motion for leave to file amici brief filed by Natural Resources Defense Council, et al

GRANTED.

Argued. For petitioners: Damien M. Schiff, Sacramento, Cal. For respondents: Maicolm

L. Stewart, Deputy Solicitor General, Department of Justice, Washington, D. C.

Judgment REVERSED and case REMANDED. Scalia, J., delivered the opinion for a

unanimous Court. Ginsburg, J., and Alito, J., filed concurring opinions.

JUDGMENT ISSUED.

PETITION

FOR

WRIT OF

CERTIORAR!

Supreme Court. U.S

tt iar FILED

ae .

BRIEKS 101062 FEB 23 20M

OPFICE OF THE ©

In the

Supreme Court of the Hnited States

—}>

CHANTELL SACKETT and MICHAEL SACKETT.

Petitioners,

Vv.

UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY

and LISA P. JACKSON, Administrator.

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

—o—

LESLIE R. WEATHERHEAD M._ REED HoPrer

Witherspoon Kelley *DAMIEN M. ScHirr

Davenport & Toole *Counsel of Record

422 W. Riverside Ave.. Pacific Lega} Foundation

Suite 1100 3900 Lennane Dr.. Suite 200

Spokane. WA 99201 Sacramento. CA 9583-1

Telephone: (509) 624-5265 Telephone: (916) 119-7111

Facsimile: (509) 458-2728 Facsimile: (916) 119-7747

E-mail: Iwlibertas@aol.com E-mail: mrh®pacificlegal.org

E-mail: dms@pacificlegal org

Counsel for Petitioners

QUESTION PRESENTED

Chantell and Michael Sackett own a small lot ina

built-out residential subdivision that they graded to

build a home. Thereafter, the Sacketts received an

Administrative Compliance Order from the

Environmental Protection Agency claiming that they

filled a jurisdictional wetland without a federal permit

in violation of the Clean Water Act. At great cost, and

under threat of civil fines of tens of thousands of

dollars per day, as well as possible criminal penalties,

the Sacketts were ordered to remove all fill, replace

any lost vegetation, and monitor the fenced-off site for

three years. The Sacketts were provided no

evidentiary hearing or opportunity to contest the order.

And, the lower courts have refused to address the

Sacketts’ claim that the lot is not subject to federal

jurisdiction.

Do Petitioners have a right to judicial review of an

Administrative Compliance Order issued without

hearing or any proof of violation under Section

309(a)(3) of the Clean Water Act?

TABLE OF CONTENTS

Page

QUESTION PRESENTED ... 02 see swe 500 eee i

TABLE OF AUTHOOMIE RM «cc oc cc teessn een iv

PETITION FOR WRIT OF CERTIORARI ........ 1

OPENING BELA once ccs wena wees rae 1

FURIGDICTION ..wcvciccccnsetceunes sae 1

CONSTITUTIONAL AND STATUTORY

PROVIGIONG AT IBGUS ..2..---:semaeeen 2

iy y 8 08 by 6 | ener 3

STATEMENT OF THE CASE ................- 4

REASONS FOR GRANTING THE WRIT ........ 8

I. CERTIORARI SHOULD BE GRANTED

BECAUSE THE RULE ADOPTED BY

THE NINTH CIRCUIT AND SEVERAL

OTHER CIRCUITS WILL HAVE A :

SIGNIFICANT NATIONWIDE IMPACT ....8

Il. CERTIORARI SHOULD BE GRANTED

TO RESOLVE A CONFLICT BETWEEN

THE COURTS OF APPEALS

CONCLUSION

TABLE OF CONTENTS—Continued

Page

APPENDIX

Opinion, filed Sept. 17,2010 .............. A-1

Deemeete, Tbee Dec. 9, 2010 .........6.2-0- B-1

Memorandum Order, filed Aug. 7, 2008 ..... C-1

Se ee, OD tte ee sceccers D-1

Complaint for Declaratory and Injunctive

Seeeeee, tee Apr. 26, F006 .. ... 6. cee ees E-1

Letter issuing Amended Compliance Order,

Tn as soc os'e.6 4's 'b8 6 eee ees F-]

Amended Complhiance Order,

Cc eh obs eiacccvces G-1

Letter modifying Compliance Order,

es oe a dla hae hee ene e H-1

Letter extending deadlines for removal

and replacement of wetland soil and

re-planting, dated Apr. 4,2008 ............ I-1

TABLE OF AUTHORITIES

Page

Cases

Atl. States Legal Found., Inc. v.

Tyson Foods, Inc.,

SOT F.2e 1390 Clith Cir. 19GB)... . . ccc cccene 16

Block v. Cmty. Nutrition Inst.,

er es ee EE ak oe wes wea ele we cleiels binlele ula 6

Cotting v. Kansas City Stock Yards Co..,

Si Ga PS. cso cla ae ces uaee ako weasels 10

Ex parte Young, 209 U.S. 123 (1908) ........... 10

Granny Goose Foods v. Bhd. of Teamsters &

Auto Truck Drivers, 415 U.S. 423 (1974) ...... 11

Hoffman Group, Inc. v. EPA,

902 F.2d 567 (7th Cir. 1990) .............. we

Laguna Gatuna, Inc. v. Browner,

58 F.3d 564 (10th Cir. 1995),

cert. denied, 516 U.S. 1071 (1996) ............ g

MedImmune, Inc. v. Genentech, Inc.,

Ge EP BOE ha wacueceuncewensens 11-12

Rapanos v. United States,

Ee Gs WUE sy 5.0 co oc bee cece vnvsewts 13

S. Ohio Coal Co. v. Office of Surface

Mining, Reclamation & Enforcement,

20 F.3d 1418 (6th Cir. 1994),

cert. denied, 513 U.S. 927 (1994) ............. 9

S. Pines Assocs. v. United States,

OER Fae Ce CON Gr; BE nc tc cccvecosccvcn 9

TABLE OF AUTHORITIES—Continued

Page

Tennessee Valley Authority v. Whitman,

336 F.3d 1236 (11th Cir. 2003) ......... 4. 14-16

Thunder Basin Coal Co. v. Reich,

a Gees ED ono 'e 06k eels cba ass 7, 9-10, 13

Statutes

ry a IIE es 5a hese eo ale ee ae ee 2

ee rE Dy ica a ac <cebie 6 ork hacee ke rates 2

Se Eggi s5 0 oceca A & Sle nlelataratecd Bue kts loserh 3, 17

oo Se eee 10-11

DEE fii ere od soe er ae he 10-11

EEE od iccg\a! kala ain Win Ske Oe beet wine Clr 3, 10

pee 3 reac Sta gu ahaa Marge ug al tai gon 10

ES aN nad a) & ER Ow ek ibs a eS oes 2

EI oi kg dg Vash bie’ Ga oUk. a ee ale eee wT 2

ip ae ac PORE, Sak wh se corse ees 16-17

I rd ae es oak in a vs a thie Wd Dee ss 17

RR ea a pean ata ele o's eatery eee ai leral gas 16

Regulation

5 6 a oe a 12

Constitution

ne ee a ae ik Re Ne ae 2

vil

TABLE OF AUTHORITIES— Continued

Page

Rules

I a re ae eee ng ANS Te eee 2

tC Eg i Vs 5-0 ea ue ee i ee ae 1

Miscellaneous

Davis, Andrew I., Judicial Review of

Environmental Compliance Orders,

24 Envtl. L. 189 (1994)

Nichols, Jason D., Towards Reviving the

Efficacy of Administrative Compliance

Orders: Balancing Due Process Concerns

and the Need for Enforcement Flexibility

in Environmental Law,

57 Admin. L. Rev. 193 (2005)

U.S. EPA, Office of Enforcement and

Compliance Assurance, OECA FY 2008

Accomplishments Report (Dec. 2008),

available at http://www.epa.gov/compliance/

resources/reports/accomplishments/oeca/

fyO8accomplishment.pdf

(last visited Feb. 17, 2011) .............. 13-14

U.S. EPA, Office of Enforcement and Compliance

Assurance, Clean Water Act Action Plan

(Oct. 15, 2009, rev. Feb. 22, 2010), available at

http://www-.epa.gov/oecaerth/resources/

policies/civil/ewa/actionplan101409.pdf

(last visited Feb. 17, 2011)

TABLE OF AUTHORITIES—Continued

Page

Wynn, Christopher M., Note, Facing a Hobson's

Choice? The Constitutionality of the EPA's

Administrative Compliance Order Enforcement

Scheme Under the Clean Air Act,

62 Wash. & Lee L. Rev. 1879 (2005) ...... 12-14

PETITION FOR WRIT OF CERTIORARI

Petitioners Chantell and Michael Sackett

respectfully petition this Court for a Writ of Certiorari

to review the judgment of the United States Court of

Appeals for the Ninth Circuit.'

> ae

OPINIONS BELOW

The panel opinion of the Court of Appeals is

published at 622 F.3d 1139 (9th Cir. 2010), and

included in Petitioners’ Appendix (Pet. App.) at A. The

panel opinion denying the petition for rehearing

en banc is not published but is included in Pet. App.

at D. The opinion of the district court granting the

motion to dismiss under Federal Rule of Civil

Procedure 12(b)(1) of Respondents United States

Environmental Protection Agency, et al. (EPA), is not

published but is included in Pet. App. at C.

JURISDICTION

On August 7, 2008, the district court granted

EPA’s motion to dismiss the Sacketts’ action and

entered judgment in favor of EPA. The Sacketts filed

a timely appeal to the Ninth Circuit Court of Appeals.

On September 17, 2010, a panel of the Court of

Appeals affirmed the district court’s dismissal. The

Sacketts then filed a timely petition for rehearing en

banc. On November 29, 2010, the panel denied the

' Pursuant to Supreme Court Rule 35.3, Ms. Jackson has been

substituted for Stephen L. Johnson as Administrator of the United

States Environmental Protection Agency.

petition, no judge of the Court of Appeals having

requested a vote. See Fed. R. App. P. 35(f). This Court

has jurisdiction under 28 U.S.C. § 1254(1).

¢—-

CONSTITUTIONAL AND STATUTORY

PROVISIONS AT ISSUE

The Fifth Amendment to the United States

Constitution provides in pertinent part:

No person shall be . . . deprived of life,

liberty, or property, without due process of

BT «oan

U.S. Const. amend. V.

The Clean Water Act provides in pertinent part:

Except as in compliance with this section

and sections [1312, 1316, 1317, 1328, 1342,

and 1344 of this title], the discharge of any

pollutant by any person shall be unlawful.

33 U.S.C. § 1311(a).

The term “discharge of a pollutant” and the term

“discharge of pollutants” each means

(A) any addition of any pollutant to

navigable waters from any point source.

33 U.S.C. § 1362(12)(A).

The term “navigable waters” means the

waters of the United States, including the

territorial seas.

33 U.S.C. § 1362(7).

Whenever on the basis of any information

available to him the Administrator finds that

any person is in violation of section [1311 of

this title], . . . he shall issue an order

requiring such person to comply with such

section or requirement, or he shall bring a

civil action in accordance with subsection (b)

of this section.

33 U.S.C. § 1319(a)(3).

Any person who violates . . . any order issued

by the Administrator under subsection (a) of

this section, shall be subject to a civil penalty

not to exceed $25,000 per day for each

violation. In determining the amount of a

civil penalty the court shall consider the

seriousness of the violation or violations, the

economic benefit (if any) resulting from the

violation, any history of such violations, any

good-faith efforts to comply with the

applicable requirements, the economic

impact of the penalty on the violator, and

such other matters as justice may require.

For purposes of this subsection, a single

operational upset which leads _ to

simultaneous violations of more than one

pollutant parameter shall be treated as a

single violation.

33 U.S.C. § 1319(d).

—~

INTRODUCTION

The issue raised by this petition is whether basic

principles of due process entitle a landowner who

receives a compliance order from EPA pursuant to the

Clean Water Act (CWA) to immediate judicial review

of that order. The Ninth Circuit’s decision holding that

judicial review is unavailable foists an intolerable

choice on landowners. According to the decision,

landowners who have received a compliance order, and

who believe that the compliance order is invalid, can

get their day in court only by (1) spending hundreds of

thousands of dollars and years applying for a permit

that they contend they do not even need, or (2) inviting

the agency to bring an enforcement action for

potentially hundreds of thousands of dollars in civil

penalties for violations of the order, and criminal

penalties for underlying violations of the Act. Further,

the Ninth Circuit’s decision squarely conflicts with the

decision of the Eleventh Circuit Court of Appeals in

Tennessee Valley Authority (TVA) v. Whitman, 336

F.3d 1236 (11th Cir. 2003). For these reasons, more

fully explained below, the petition for writ of certiorari

should be granted.

—

-— #

STATEMENT OF THE CASE

The Sacketts own an approximately half-acre

parcel of land near Priest Lake, Idaho, which they

bought for the purpose of building a house. Pet. App.

A-2. The lot exists within a built-out area near the

Lake. See Pet. App. E-2. The lot’s north side is

bordered by a road, on the other side of which is a

ditch. Pet. App. E-2 - E-3. The lot itself has an

existing sewer hookup, and is zoned for residential

construction. See Pet. App. E-2. Prior to their

purchase, the Sacketts completed the normal round of

due diligence inspections. None of their research

indicated any CWA permitting history or requirements

for the property. See id. In short, the Sacketts had

absolutely no fair reason to believe that their property

was regulable under the CWA.

The Sacketts began some earthmoving work with

all loca] building permits in hand. Shortly thereafter.

EPA sent the Sacketts a compliance order under the

CWA asserting that their property is subject to the

CWA, and that they had illegally placed fill material

into jurisdictional wetlands on their land. Cf. Pet.

App. G.* The compliance order functions as an

injunction that has both prohibitive and mandatory

features. As originally issued, it prohibited the

Sacketts from pursuing construction of their home on

thei property, as previously authorized by local

authorities. And, it required the Sacketts immediately

to begin substantial and costly restoration work,

including removal of the fill material, replanting, and

a three-year monitoring program during which the

property must be left untouched.* See Pet. App. G-4 -

G-5; H-3. Further, the compliance order subjected the

Sacketts to significant civil penalties for failure to

* The original compliance order was issued in November. 2007.

The order included in Petitioners’ Appendix reflects subsequent

amendments made by EPA to the original! order's schedule for

restoration work. See infra nn.3-4.

* Although the amended compliance order, unlike the original

order, does not expressly contemplate a three-year monitoring

regime, the amended order nevertheless requires the Sacketts to

“restore” the property to its pre-disturbance condition. Pet. App.

G-4 - G-6. The Sacketts therefore have every reason to believe

that such restoration will not be deemed accomplished by EPA

without such a monitoring period. Cf. Pet. App. H-3.

abide by its dictates without providing the Sacketts an

opportunity to be heard and to contest EPA's findings.

See Pet. App. G-7.

Believing that their property was not a wetland

within the jurisdiction of the United States, the

Sacketts requested a hearing to test EPA’s jurisdiction

over their property; EPA ignored their request. Pet.

App. A-3. The Sacketts then filed suit demanding an

opportunity to contest the jurisdictional bases for the

compliance order.* The district court dismissed the

suit. Id. at C-7. The Sacketts then appealed to the

Ninth Circuit.

The panel affirmed the district court’s dismissal.

The panel decision comprises a three-part analysis.

First, the panel analyzed whether the CWA authorizes

review of compliance orders. The court acknowledged

the general presumption in favor of judicial review of

administrative action, but noted that the presumption

is overcome “ ‘whenever the congressional intent to

preclude judicial review is fairly discernible in the

statutory scheme.” Pet. App. A-6 (quoting Block v.

Cmty. Nutrition Inst., 467 U.S. 340, 351 (1984))). The

panel observed that the other courts to have addressed

the issue have uniformly held that the CWA precludes

review of “pre-enforcement” actions, such as

compliance orders. Pet. App. A-6. The panel found

those cases persuasive, while relying for support for its

conclusion of no “pre-enforcement judicial review” on

During the pendency of the action in the district court, the

Sacketts received amendments to the compliance order, each

postponing the due date for the Sacketts to remove the fill and to

complete the replanting during the growing season. See Pet. App.

F-1, H-1, I-1.

the CWA’s statutory structure, purposes, and

legislative history. See Pet. App. A-6 - A-9.

Second, the panel analyzed whether preclusion of

pre-enforcement judicial review of compliance orders

violates the Sacketts’ due process rights. The Sacketts

had argued that the CWA on its face purports to allow

EPA to enforce a compliance order against a landowner

even if there is no jurisdictional basis for the order in

the first place. In other words, the Sacketts argued

that the CWA attempts to authorize civil liability for

violations of compliance orders, regardless of whether

the CWA itself has been violated. The court

acknowledged that this reading of Section 309(a)(3),

adopted by the Eleventh Circuit in TVA v. Whitman for

an analogous provision of the Clean Air Act, would

mean that compliance orders are unconstitutional if

they are not subject to judicial review. See Pet. App. A-

10 - A-11. But the court declined to interpret Section

309(a)(3) according to its plain meaning, instead

holding that, if and when EPA chooses to enforce a

compliance order in federal court, a landowner may at

that time raise a jurisdictional defense. Pet. App. A-11

- A-12.

Third, the panel held that mere delay in judicial

review of compliance orders does not “create a

‘constitutionally intolerable choice’” which violates a

landowner’s due process rights. Pet. App. A-13

(quoting Thunder Basin Coal Co. v. Reich, 510 U.S.

200, 218 (1994))). A landowner who contests EPA's

jurisdiction to issue a compliance order can apply for a

permit and seek judicial review of the permit’s denial.

Pet. App. A-13 - A-14. Further, if and when EPA seeks

civil penalties for violation of a compliance order, the

amount of those penalties is left to the equitable

discretion of a court, not EPA. Pet. App. A-14 - A-15.

Thus, the panel's decision leaves property owners

like the Sacketts in an impossible situation: either go

through with the permit process that you believe is

completely unnecessary and spend more money than

your property is worth to “purchase” your chance at

your day in court; or invite an enforcement action by

EPA that may give you your day in court but only at

the price of ruinous civil penalties and, depending on

EPA's ire, criminal sanctions for underlying violations

of the CWA. Such a regime as countenanced by the

Ninth Circuit would be unconstitutional. For the

reasons that follow, review in this Court is merited.

REASONS FOR GRANTING THE WRIT

CERTIORARI SHOULD BE

GRANTED BECAUSE THE RULE

ADOPTED BY THE NINTH CIRCUIT AND

SEVERAL OTHER CIRCUITS WILL HAVE

A SIGNIFICANT NATIONWIDE IMPACT

The Ninth Circuit’s decision holds that the CWA

compliance order regime does not violate landowners’

due process rights, even though that regime effectively

eliminates any meaningful opportunity for judicial

review. The rule that the Ninth Circuit has adopted is

consistent with that of four circuits which have already

held against judicial review in these circurmstances.”

For this reason, the rule is functionally nationwide in

scope. But the decision below is significant just within

the Ninth Circuit, whose jurisdiction covers over 500

million acres. According to the rule adopted below and

by four other circuits, a landowner who receives a

compliance order and believes that his property is not

subject to EPA jurisdiction has two constitutionally

“adequate” avenues open to him. One, he can ignore

the compliance order at great financial and legal peril

to himself and invite EPA to bring an enforcement

action against him in court. Two, he can apply for a

permit, spending hundreds of thousands of dollars and

years in the process, have it denied, then sue over the

denial, and perhaps ultimately win, but never be able

to recoup the money that he has spent in the process.

Neither of these ostensible “options” is constitutionally

tolerable.

Although delay in judicial review does not

necessarily violate due process, see Thunder Basin

Coal Co. v. Reich, 510 U.S. at 216 (due process not

offended if “neither compliance with, nor continued

violation of, the statute will subject petitioner to a

serious prehearing deprivation”), deferring judicial

review to some undefined point in the future is

unconstitutional if “the practical effect of coercive

penalties for noncompliance [is] to foreclose all access

to the courts,” where “compliance is sufficiently

onerous and coercive penalties sufficiently potent.” Jd.

See Laguna Gatuna, Inc. v. Browner, 58 F.3d 564 (10th Cir.

1995), cert. denied, 516 U.S. 1071 (1996); S. Ohio Coal Co. v. Office

of Surface Mining, Reclamation & Enforcement, 20 F.3d 1418 (6th

Cir. 1994), cert. denied, 513 U.S. 927 (1994); S. Pines Assocs. v.

United States, 912 F.2d 713 (4th Cir. 1990); Hoffman Group, Inc.

v. EPA, 902 F.2d 567 (7th Cir. 1990).

at 218. As this Court observed in Ex parte Young, 209

U.S. 123 (1908), requiring “a party interested the

burden of obtaining a judicial decision of such a

question (no prior hearing having ever been given) only

upon the condition that if unsuccessful he must suffer

imprisonment and pay fines as provided in these acts”

would effectively “close up all approaches to the

courts.” Jd. at 148.°

Ignoring the compliance order is no option, for

several reasons. First, the CWA imposes significant

civil penalties for violating compliance orders. See

33 U.S.C. § 1319(d) Gmposing maximum civil penalty

of $25,000 per day per violation).’ Just one month of

noncompliance puts the landowner at risk of civil

liability of $750,000. A year’s worth of noncompliance

puts the lability at $9,000,000. Moreover, a

landowner who continues with his construction project

in the face of a compliance order greatly increases the

risk that the agency will seek criminal penalties

against him. See id. § 1319(c)(1)-(2) (imposing criminal

" See also Cotting v. Kansas City Stock Yards Co., 183 U.S. 79, 102

(1901) (“But when the legislature, in an effort to prevent any

inquiry of the validity of a particular statute, so burdens any

challenge thereof in the courts, that the party affected is

necessarily constrained to submit rather than take the chances of

the penalties imposed, then it becomes a serious question whether

the party is not deprived of [his constitutional liberties].”).

* The CWA authorizes civil fines of up to $32,500 per day for

violations of the Act, see Pet. App. F-2, and, as noted in the text,

$25,000 per day for violations of a compliance order, 33 U.S.C.

§ 131%d). The Act also authorizes administrative penalties,

assessed by EPA directly in an administrative proceeding, of up to

$125,000 total. See id. § 1319(g)(2)(A)-(B).

penalties for negligent and knowing violations of the

Act).°

Contrary to the Ninth Circuit’s decision, the

assurance of judicial review for any CWA penalties

gives cold comfort to landowners. There is no

guarantee that a court will approve a de minimis fine

or penalty, especially in light of the already very high

ceilings that the Act authorizes. Given the potential

for significant civil penalties (and criminal penalties

for violations of the CWA itself), the “option” to pursue

judicial review by violating the compliance order, or

the Act, or both, is really no option at all.*® Cf.

MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129

(2007) (“Given this genuine threat of enforcement, we

" The CWA authorizes: (i) fines of up to $25,000 per day and

imprisonment for one year for first time negligent violations of the

Act, 33 U.S.C. § 1319(c)(1); (ii) fines of up to $50,000 per day and

imprisonment for two years for repeated negligent violations, id.:

(iii) fines of up to $50,000 per day and imprisonment for three

years for knowing violations, id. § 1319{c){2); and (iv) fines of up

to $100,000 per day and imprisonment for six years for repeated

knowing violations, id.

* It is noteworthy that EPA claims a power to prohibit and require

action by an injunction-like compliance order (without notice and

a prompt hearing) that even the federal judiciary does not enjov.

See Granny Goose Foods v. Bhd. of Teamsters & Auto Truck

Drivers, 415 U.S. 423, 438-39 (1974) (“The stringent restrictions

imposed by . . . Rule 65, on the availability of ex parte temporary

restraining orders reflect the fact that our entire jurisprudence

runs counter to the notion of court action taken before reasonable

notice and an opportunity to be heard has been granted both sides

of a dispute. Ex parte temporary restraining orders are no doubt

necessary in certain circumstances, but under federal law they

should be restricted to serving their underlying purpose of

preserving the status quo and preventing irreparable harm just so

long as 1s necessary to hold a hearing, and no Jonger.”) (footnote &

citation omitted).

did not require, as a prerequisite to testing the validity

of the law in a suit for injunction, that the plaintiff bet

the farm, so to speak, by taking the violative action.”);

Andrew I. Davis, Judicial Review of Environmental

Compliance Orders, 24 Envtl. L. 189, 223 (1994) (“The

absence of direct review of compliance orders

effectively coerces a recipient to comply with the order

under threat of mounting penalties during the period

prior to EPA enforcement.”); Christopher M. Wynn,

Note, Facing a Hobson’s Choice? The Constitutionality

of the EPA’s Administrative Compliance Order

Enforcement Scheme Under the Clean Air Act,

62 Wash. & Lee L. Rev. 1879, 1920 (2005) (“Certain

{compliance orders] can coerce a regulated party into

a Hobson's choice: Complying with the order may

create an enormous financial burden on a company

while the company awaits possible EPA enforcement,

while ignoring the order may subject the party to

severe criminal and civil penalties.”).

Applying for a permit is no help to landowners

either, for two reasons. First, in many instances the

agencies will not entertain a permit application until

the compliance order has been resolved. See, e.g., 33

C.F.R. § 326.3(e)(1)(ii) (“No permit application will be

accepted in connection with a violation where the

district engineer determines that legal action is

appropriate ... until such legal action has been

completed.”). For the Sacketts, that would mean

(a) removing all the fill; and, (b) restoring the

preexisting “wetlands,” which would necessitate

leaving the property untouched for a prolonged period

of time.'® See Pet. App. G-4 - G-5. Few landowners

could afford the cost or the time. Second, the time and

money involved in just applying for a permit is

significant. See Rapanos v. United States, 547 U.S.

715, 721 (2006) (plurality opinion) (“The average

applicant for an individual permit spends 788 days and

$271,596 in completing the process, and the average

applicant for a nationwide permit spends 313 days and

$28,915—not counting costs of mitigation or design

changes.”). There is no guarantee that the permit will

be granted, with or without substantial conditions.

And should a landowner succeed in a subsequent

lawsuit challenging the agency’s permitting

jurisdiction, none of the permitting costs would be

refundable. Cf. Thunder Basin, 510 U.S. at 220-21

(Scalia, J., concurring in part and concurring in the

judgment) (“[C]omplying with a regulation later held

invalid almost always produces the irreparable harm

of nonrecoverable compliance costs.”). Thus. this

“option” too is really no option at all.

EPA's use of the compliance order is far from rare:

between 1980 and 2001, the agency issued from 1,500

to 3,000 compliance orders every year across the

country. Wynn, supra, at 1895. EPA's recent practice

is somewhat below historical trends. See U.S. EPA,

Office of Enforcement and Compliance Assurance,

As noted earlier, see supra n.3, the original compliance order

contained an express three-year monitoring program during which

the property would have to be left untouched.

OECA FY 2008 Accomplishments Report App. B (Dec.

2008)'' (1,390 compliance orders issued). But given the

agency's recent public commitment to increasing its

enforcement program,” there is every expectation that

EPA's reliance on the compliance order will continue

and increase. That reliance is troubling when one

considers that, as of the late 1990s, EPA referred only

about 400 cases annually for judicial enforcement to

the Department of Justice. Wynn, supra, at 1895.

These statistics imply that EPA circumvents the

normal avenues of enforcement through courts, by

in their place using essentially unreviewable

administrative orders to compel landowners to comply

with the agency's dictates.

The Ninth Circuit reasoned that the Sacketts and

other innocent landowners have no right of access to a

federal court because no formal action has yet been

brought to sanction them. But that assessment ignores

the realities of the Sacketts’ and other landowners’

circumstances, in its implicit assumption that the

Sacketts (and all citizens in similar situations) can

afford to defy an order, backed by threats of severe

financial penalty, issued by the United States

government, and simply await an action for sanctions.

The reality of the Sacketts’ situation is that they have

been unambiguously commanded by their government

not to complete their home-building project, to take

' Available at http://www.epa.gov/compliance/resources/re ports/

accomplishments/oeca/fyO8accomplishment.pdf (last visited

Feb. 17, 2011).

'- See generally U.S. EPA, Office of Enforcement and Compliance

Assurance, Clean Water Act Action Plan (Oct. 15, 2009, rev.

Feb. 22, 2010), available at http://www.epa.gov/oecaerth/resources/

policies/civil/ewa/actionplan 101409. pdf (last visited Feb. 17, 2011).

expensive measures to undo the improvements that

they have made to their land, and to maintain their

land essentially as a public park until the property is

“restored” to the satisfaction of the EPA. They have

been threatened with frightening penalties if they do

not immediately obey; but they have been refused the

prompt hearing they should have received as a matter

of right in any court. Thousands of landowners across

the country are in similar straights. This Court’s

review is merited.

CERTIORARI SHOULD BE

GRANTED TO RESOLVE A CONFLICT

BETWEEN THE COURTS OF APPEALS

Essential to the Ninth Circuit's holding that the

CWA’s compliance order regime does not violate

due process was the court's interpretation of

Section 309(a)(3) to permit property owners to raise

a jurisdictional defense if and when EPA decides

to seek in court enforcement of a comphance order,

or penalties for its violation. Pet. App. A-11 - A-12.

The Ninth Circuit’s interpretation of Section 309(a)(3)

directly conflicts with the Eleventh Circuit's decision in

TVA v. Whitman. Although TVA dealt with the Clean

Air Act (CAA) compliance order regime, the Eleventh

Circuit expressly noted that the two statutory regimes

are, for the issues presented here, substantively

identical. See TVA, 336 F.3d at 1256 n.32

In TVA, EPA issued a CAA compliance order

against TVA, which the latter refused to abide by on

the theory that it could not be sued in federal court.

The Eleventh Circuit held that enforcement of the

compliance order would violate the Due Process Clause

because the CAA did not afford any basis for contesting

the compliance order. See id. at 1258. Under the CAA,

as under the CWA, EPA may issue a comphance order,

on the basis of “any information available” to the

agency, that the CAA has been violated, and thereupon

require a regulated party to conform its conduct

accordingly. See 42 U.S.C. § 7413(a)(3)(B). Further,

the CAA, just as the CWA, authorizes the assessment

of civil penalties for violations of compliance orders.

Id. § 7413(d). See TVA, 336 F.3d at 1242. Critical to

the Eleventh Circuit’s holding that CAA compliance

orders are unconstitutional was its conclusion that

CAA compliance orders have the force of law and

impose lability independent of the statute. See 7'VA,

336 F.3d at 1255-56. Under the plain logic of TVA,

that conclusion holds for CWA compliance orders as

well.

The Ninth Circuit acknowledged that its

interpretation of CWA Section 309(a)(3) was contrary

to the Eleventh Circuit's reading, but reasoned that the

statutory language “is ‘not a model of clarity,” and

that the language could—and should—be interpreted

in a way that would avoid unconstitutionality. Pet.

App. A-11 (quoting Atl. States Legal Found., Inc. v.

Tyson Foods, Inc., 897 F.2d 1128, 1137 (11th Cir.

1990)). Yet in response to this “avoidance” approach,

the Eleventh Circuit was clear: “no canon of statutory

interpretation can trump the unambiguous language of

a statute.” TVA, 336 F.3d at 1255. The statutory

language, according to the Eleventh Circuit,

unambiguously precludes the recipient of a compliance

order from raising a jurisdictional defense. and for that

reason the compliance order cannot be enforced

without first giving the orders recipient an

opportunity to contest it.‘ Cf. Jason D. Nichols,

Towards Reviving the Efficacy of Administrative

Compliance Orders: Balancing Due Process Concerns

and the Need for Enforcement Flexibility in

Environmental Law, 57 Admin. L. Rev. 193, 215 (2005)

(“[T]he TVA opinion .. . deserves credit for observing

the constitutional frailties of the EPA's [compliance

order] process.”). This clear conflict between the Ninth

Circuit’s decision and the Eleventh Circuit's decision in

TVA merits this Court’s review.

CONCLUSION

The EPA’s compliance order regime puts the

Sacketts, and innocent landowners like them

throughout the country, in an impossible situation. To

get their day in court, these landowners must either

‘§ The CAA provides in relevant part that “whenever, on the

basis of any information available to the Administrator, the

Administrator finds that any person has violated, or is in violation

of, any other requirement or prohibition of this title ... , the

Administrator may... issue an order requiring such person to

comply with such requirement or prohibition.” 42 U.S.C.

§ 7413(a)(3)(B). The CWA provides in relevant part that

“[w]|henever on the basis of any information available to him the

Administrator finds that any person is in violation of [various

provisions of the Act], he shall issue an order requiring such

person to comply with such section or requirement... .” 33 U.S.C.

§ 1319(a)(3). Hence, the Eleventh Circuit’s conclusion that the two

statutory compliance order regimes are essentially the same is

substantiated by the statutes’ plain meaning. In fact, the CAA

regime is on its face less offensive to due process principles than

the CWA regime, because the former generally requires the EPA

Administrator to provide notice before issuing a compliance order.

see 42 U.S.C. § 7413(a)(4), whereas the CWA has no such

requirement.

run the risk of ruinous penalties and imprisonment, or

“purchase” their right of judicial review through the

permit process, even if the purchase price is more than

the value of their land. If the Sacketts and other

landowners are not given an opportunity for full

judicial review of their compliance order free of EPA’s

onerous conditions, their due process rights will be

violated. This Court’s review is needed.

The petition for writ of certiorari should be

granted.

DATED: February, 2011.

Respectfully submitted,

LESLIE R. WEATHERHEAD M. REED HOPPER

Witherspoon Kelley *DAMIEN M. SCHIFF

Davenport & Toole *Counsel of Record

422 W. Riverside Ave., Pacific Legal Foundation

Suite 1100 3900 Lennane Dr., Suite 200

Spokane, WA 99201 Sacramento, CA 95834

Telephone: (509) 624-5265 Telephone: (916) 419-7111

Facsimile: (509) 458-2728 Facsimile: (916) 419-7747

E-mail: lwhbertas@aol.com E-mail: mrh@pacificlegal.org

E-mail: dms@pacificlegal.org

Counsel for Petitioners

TABLE OF CONTENTS

Guisdem. Glee Beet. 17, BRIG 2. cc cee ces A-1

Mandate. Gied Lec. @, FOIO ..... 2... ccc ccc B-1

Memorandum Order, filed Aug. 7, 2008 ........ C-1

Coda. Gs Pa, Ti, Pe occ ee cece D-1

Complaint for Declaratory and

Injunctive Relief, filed Apr. 28, 2008 .......... E-1

Letter issuing Amended Compliance Order,

eo OS ee eee F-1

Amended Compliance Order,

ee ere ee G-l

Letter modifying Compliance Order,

dated May 1, 2008 ....................-.--. H-1

Letter extending deadlines for removal

and replacement of wetland soil and

re-planting, dated Apr. 4, 2008 ............... I-1

Appendix A-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHANTELL SACKETT;

MICHAEL SACKETT,

Plaintiffs - Appellants,

Vv.

UNITED STATES

ENVIRONMENTAL

PROTECTION AGENCY;

STEVEN L. JOHNSON,

Administrator,

Defendants - Appellees.

No. 08-35854

D.C. No.

2:08-cv-00185-EJL

OPINION

Appeal from the United States District Court

for the District of Idaho

Edward J. Lodge, District Judge, Presiding

Argued and Submitted

December 9, 2009

Submission Withdrawn December 23, 2009

Resubmitted August 18, 2010

Seattle, Washington

Filed September 17, 2010

Before: Robert R. Beezer, Ronald M. Gould and

Richard C. Tallman, Circuit Judges

Opinion by Judge Gould

a ltl

ee me te

Appendix A—2

COUNSEL

Leshe R. Weatherhead, Witherspoon Kelley Davenport

& Toole, Spokane, Washington; M. Reed Hopper,

Damien M. Schiff (argued), Pacific Legal Foundation,

Sacramento, California, for the plaintiffs-appellants.

Ankur K. Tohan, United States Environmental

Protection Agency, Seattle, Washington; Ronald J.

Tenpas, Assistant Attorney General; Cynthia J.

Morris, Aaron P. Avila, Jennifer Scheller Neumann

(argued), United States Department of Justice

Environment and Natural Resources’ Division,

Washington, DC, for the defendants-appellees.

OPINION

GOULD, Circuit Judge:

We determine whether federal courts have

subject-matter jurisdiction to conduct review of

administrative compliance orders issued by the

Environmental Protection Agency pursuant to the

Clean Water Act, 33 U.S.C. § 1319(a)(3), before the

EPA has filed a lawsuit in federal court to enforce the

compliance order. We join our sister circuits and hold

that the Clean Water Act precludes pre-enforcement

judicial review of administrative compliance orders,

and that such preclusion does not violate due process.

Chantell and Michael Sackett (“the Sacketts”) own

a 0.63-acre undeveloped lot in Idaho near Priest Lake

(“the Parcel”). In April and May of 2007, the Sacketts

filled in about onehalf acre of that property with dirt

and rock in preparation for building a house.

Appendix A-—3

On November 26, 2007, the EPA issued a

compliance order against the Sacketts. The comphance

order alleged that the Parcel is a wetland subject to the

Clean Water Act (“CWA”) and that the Sacketts

violated the CWA by filling in their property without

first obtaining a permit.’ The compliance order

required the Sacketts to remove the fill material and

restore the Parcel to its original condition. The

compliance order states that “[vJiolation of, or failure

to comply with, the foregoing Order may subject

Respondents to (1) civil penalties of up to $32,500 per

day of violation . . . [or] (2) administrative penalties of

up to $11,000 per day for each violation.”

The Sacketts sought a hearing with the EPA to

challenge the finding that the Parcel is subject to the

CWA. The EPA did not grant the Sacketts a hearing

and continued to assert CWA jurisdiction over the

Parcel. The Sacketts then filed this action in the

United States District Court for the District of Idaho

seeking injunctive and declaratory relief. They

challenged the compliance order as (1) arbitrary and

capricious under the Administrative Procedure Act

(“APA”), 5 U.S.C. § 706(2)(A); (2) issued without a

hearing in violation of the Sacketts’ procedural

due process rights; and (3) issued on the basis of

an “any information available” standard that is

unconstitutionally vague.

The district court granted the EPA’s Federal Rule

of Civil Procedure 12(b)(1) motion to dismiss the

Sacketts’ claims for lack of subject-matter jurisdiction.

It concluded that the CWA precludes judicial review of

' The comphance order charged the Sacketts with discharging

pollutants into the waters of the United States, absent a permit,

in violation of 33 U.S.C. § 1311{a).

Appendix A—4

compliance orders before the EPA has started an

enforcement action in federal court. The Sacketts filed

a Federal Rule of Civil Procedure 59(e) motion for

clarification and reconsideration that was also denied.

The Sacketts appealed. We have jurisdiction pursuant

to 28 U.S.C. § 1291.

We review de novo the dismissal of a complaint for

lack of subject-matter jurisdiction. Mangano v. United

States, 529 F.3d 1243, 1245 n.2 (9th Cir. 2008).

The EPA has determined that the Sacketts

discharged pollutants into the waters of the United

States in violation of the CWA. When the EPA

identifies a CWA violation, it has three main civil

enforcement options. First, it can assess an

administrative penalty. 33 U.S.C. § 1319(g). When the

EPA assesses an administrative penalty, the alleged

violator is entitled to “a reasonable opportunity to be

heard and to present evidence,” the public is entitled to

comment, and any assessed penalty is subject to

immediate judicial review. 33 U.S.C. § 1319(g)(4), (8).

Second, the EPA can initiate a civil enforcement action

in federal district court. 33 U.S.C. § 1319(b). Third,

the EPA can issue, as it did here, an administrative

“compliance order.” 33 U.S.C. § 1319(a).

A compliance order “is a document served on the

violator, setting forth the nature of the violation and

specifying a time for compliance with the Act.” S.

Pines Assocs. by Goldmeier v. United States, 912 F.2d

713, 715 (4th Cir. 1990). The EPA derives its power to

issue comphance orders from 33 U.S.C. § 1319(a)(3),

which states:

~ Criminal penalties are also available. 33 U.S.C. § 1319(c).

Appendix A-—5

Whenever on the basis of any information

available to him the Administrator finds that

any person is in violation of section 1311,

1312, 1316, 1317, 1318, 1328, or 1345 of this

title, .. . he shall issue an order requiring

such person to comply with such section or

requirement, or he shall bring a civil action in

accordance with [33 U.S.C. § 1319(b)].

{1] To enforce a compliance order, the EPA must

bring an enforcement action in federal court under 33

U.S.C. § 1319(b). The compliance order issued against

the Sacketts exposed them to potential court-imposed

civil penalties not to exceed $32,500 “per day for each

violation” of the compliance order. 33 U.S.C.

§ 1319(d); 40 C.F.R. § 19.4. In assessing the amount of

the penalty, courts “shall consider the seriousness of

the violaticn or violations, the economic benefit (if any)

resulting from the violation, any history of such

violations, any good-faith efforts to comply with the

applicable requirements, the economic impact of the

penalty on the violator, and such other matters as

justice may require.” 33 U.S.C. § 1319(d).

The Sacketts argue that compliance orders

are judicially reviewable prior to the EPA filing

an enforcement action in federal court. The

CWA, however, does not expressly provide for

pre-enforcement judicial review of compliance orders.

See 33 U.S.C. § 1319. The Sacketts argue that federal

courts are nonetheless authorized to conduct

pre-enforcement review of compliance orders pursuant

to the APA. Under the APA, “[a]gency action made

reviewable by statute and final agency action for which

* The maximum per-day penalty amount increased to $37.500

effective January 12, 2009. 40 C.F.R. § 19.4.

Appendix A—6

there is no other adequate remedy in a court are

subject to judicial review.” 5 U.S.C. § 704. Agency

action is not reviewable under the APA, however,

where the relevant statute “preclude[s] judicial

review.” 5 U.S.C. § 701(a)(1).

{2] Whether the CWA precludes pre-enforcement

review of compliance orders is an issue of first

impression in our circuit. We begin with the

presumption favoring judicial review of administrative

action. See Abbott Labs. v. Gardner, 387 U.S. 136, 140

(1967), overruled on other grounds by Califano v.

Sanders, 430 U.S. 99 (1977). That presumption is

overcome, however, “whenever the congressional intent

to preclude judicial review is fairly discernible in the

statutory scheme.” Block v. Cmty. Nutrition Inst., 467

U.S. 340, 351 (1984) (quotation marks omitted).

“Whether and to what extent a particular statute

precludes judicial review is determined not only from

its express language, but also from the structure of the

statutory scheme, its objectives, its legislative history,

and the nature of the administrative action involved.”

Id. at 345. The CWA does not expressly preclude

preenforcement judicial review of such compliance

orders. So we must consider the other factors identified

by the Supreme Court to determine whether the CWA

imphedly precludes pre-enforcement judicial review.

[3] In this assessment, we do not work from a

blank slate. Every circuit that has confronted this

issue has held that the CWA impliedly precludes

judicial review of compliance orders until the EPA

brings an enforcement action in federal district court.

See, e.g., Laguna Gatuna, Inc. v. Browner, 58 F.3d 564

(10th Cir. 1995); S. Ohio Coal Co. v. Office of Surface

Mining, Reclamation & Enforcement, 20 F.3d 1418 (6th

Appendix A-—7

Cir. 1994); S. Pines Assocs. by Goldmeier v. United

States, 912 F.2d 713 (4th Cir. 1990); Hoffman Group,

Inc. v. EPA, 902 F.2d 567 (7th Cir. 1990). Many

district courts have also so held. See, e.g., Sharp Land

Co. v. United States, 956 F. Supp. 691, 693-94 (M.D.

La. 1996); Child v. United States, 851 F. Supp. 1527.

1533 (D. Utah 1994); Bd. of Managers, Bottineau Cnty.

Water Res. Dist. v. Bornhoft, 812 F. Supp. 1012,

1014-1015 (D.N.D. 1993); McGown v. United States,

747 F. Supp. 539, 542 (E.D. Mo. 1990); Fiscella &

Fiscella v. United States, 717 F. Supp. 1143, 1146-47

(E.D. Va. 1989). The reasoning of these courts is

persuasive to us, as well as the broad uniformity of

consensus on this issue.

[4] First, we look to the structure of the statutory

scheme and the nature of the administrative action

involved. Here, Congress gave the EPA a choice of

“issu[ing] an order requiring such person to comply

with such section or requirement, or. . . bringfing] a

civil action [in district court].” 33 U.S.C. § 1319(a)(3)

(emphasis added). Authorizing pre-enforcement

judicial review of compliance orders would eliminate

this choice by enabling those subject to a comphance

order to force the EPA to litigate all compliance orders

in court. £.g., Hoffman Group, 902 F.2d at 569. Such

a result would be discordant with the statutory

scheme.

[5] Moreover, no sanctions can be imposed, or

injunctions issued, for noncomphance with a

compliance order until the EPA brings a civil

enforcement action in district court. See 33 U.S.C.

§ 1319(d); Hoffman Group, 902 F.2d at 569. Given that

an enforcement action gives an opportunity for judicial

consideration of the compliance order, we infer that

Appendix A-8

Congress intended that all challenges to the

compliance order be brought in one proceeding. See

id.; cf. Middlesex County Sewerage Auth. v. Natl Sea

Clammers Ass'n, 453 U.S. 1, 14 (1981) (“In the absence

of strong indicia of a contrary congressional intent, we

are compelled to conclude that Congress provided

precisely the remedies it considered appropriate.”).

[6] In addition, by contrast to how it treated

compliance orders, Congress set forth an explicit

mechanism for judicial review of administrative

penalties assessed by the EPA for CWA violations. See

33 U.S.C. § 1319(g)(8). Congress's express grant of

judicial review for administrative penalties helps to

persuade us that the absence of a similar grant of

judicial review for compliance orders was an

intentional omission that must be respected. See S.

Ohio Coal Co., 20 F.3d at 1426.

{7] Second, we look to the objectives of the

statutory scheme. Here, courts have concluded that

compliance orders, like pre-enforcement administrative

orders in other environmental statutes, are meant to

“allow EPA to act to address environmental problems

quickly and without becoming immediately entangled

in litigation.” S. Pines Assocs., 912 F.2d at 716; see

also S. Rep. No. 92-414, at 3730 (1972) (“One purpose

of these new requirements is to avoid the necessity of

lengthy fact finding, investigations, and negotiations at

the time of enforcement. Enforcement of violations of

requirements under this Act should be based on

relatively narrow fact situations requiring a minimum

of discretionary decision making or delay.”). This goal

of enabling swift corrective action would be defeated by

permitting immediate judicial review of compliance

orders.

Appendix A-9

[8] Third, we consider the legislative history of the

CWA. The enforcement provisions of the CWA were

modeled on enforcement provisions in the Clean Air

Act (“CAA”), and many courts have relied on similar

provisions in the CAA in concluding that the CWA

precludes pre-enforcement judicial review of

compliance orders. Laguna Gatuna, 58 F.3d at 565; S.

Pines Assocs., 912 F.2d at 716; see also S. Rep. No.

92-414, at 3730. During the enactment of the CAA, the

Conference Committee which reconciled the House and

Senate versions of the CAA deleted a provision in the

Senate’s version of the bill that would have expressly

provided for preenforcement review of CAA

administrative compliance orders. See Llovd A. Fry

Roofing Co. v. EPA, 554 F.2d 885, 890 (8th Cir. 1977).

At least one court has inferred from this deletion that

it was intended to preclude pre-enforcement judicial

review of compliance orders. See id. (citing Gulf Oil

Corp. v. Copp Paving Co., 419 U.S. 186, 200 (1974)).

Such an inference is not unassailable. See Andrew I.

Davis, Judicial Review of Environmental Compliance

Orders, 24 Envt'1 L. 189, 199 (1994). Nevertheless, and

subject to the general caution with which we must view

all legislative history not adopted by both houses and

enacted as law, that inference is supported by the

structure of the CWA and its statutory language

discussed above.

[9] In view of the above considerations, we

hold that a congressional intent to preclude

pre-enforcement judicial review of compliance orders is

“fairly discernible in the statutory scheme.” Block, 467

U.S. at 351.

Appendix A—16

Ill

[10] The Sacketts argue that CWA comphance

orders must be judicially reviewable before

enforcement because preclusion of pre-enforcement

review violates their due process rights. They rely on

the Eleventh Circuit’s opinion in Tennessee Valley

Authority v. Whitman, 336 F.3d 1236 (llth Cir.

2003) [hereinafter ZJVA], in which that court

identified constitutional problems with a similar

compliance-order provision in the CAA, see id. at 1260.

The Eleventh Circuit concluded that the complete

preclusion of judicial review of compliance orders

issued under the CAA would raise _ serious

constitutional questions where compliance orders, “if

ignored, lead{[ } automatically to the imposition of

severe civil penalties and perhaps imprisonment.” Jd.

at 1256. The chief problem with the CAA, as the

Eleventh Circuit saw it, was that a compliance order

could be issued by the EPA “on the basis of any

information available” without any hearing, and that

the CAA made civil and criminal penalties dependent

on violations of compliance orders whether or not there

was an actual violation of the CAA. See id. (citing

Davis, supra at 194 (“Regardless of the merits of the

alleged violation underlying the compliance order,

disregarding the order potentially subjects the

recipient to accruing daily penalties.”)).

[11] If the CWA is read in the literal manner the

Sacketts suggest, it could indeed create a due process

problem. Like the CAA, the CWA permits the EPA

to issue compliance orders “on the basis of any

information available,” 33 U.S.C. § 1319(a)(3), which

presumably includes “a staff report, newspaper

clipping, anonymous phone tip, or anything else that

Appendix A-11

would constitute ‘any information,’ ” 7'VA, 336 F.3d at

1241 (observing that “[t]he standard is less rigorous

than the probable cause standard”). And according to

the plain text of the enforcement provision, “any

person who violates any order issued by the

Administrator under [33 U.S.C. § 1319(a)], shall be

subject to a civil penalty . . . for each violation.” 33

U.S.C. § 1319(d). Thus, the Sacketts’ reading of the

CWA suggests that they risk substantial financial

penalties for violating the compliance order, even if

they did not violate the CWA, if the EPA establishes in

an enforcement proceeding that the compliance order

was validly issued based on “any information

available.” See TVA, 336 F.3d at 1259 (concluding that

“{t]he district courts serve as forums for the EPA to

conduct show-cause hearings”).

[12] We decline to interpret the CWA in this

manner. The civil penalty provision of the CWA is “not

a model of clarity.” Atl. States Legal Found., Inc. v.

Tyson Foods, Inc., 897 F.2d 1128, 1137 (11th Cir.

1990). Although the term “any order” in 33 U.S.C.

§ 1319(d) could be interpreted to refer to all compliance

orders issued on the basis of “any information

available,” the term could also be interpreted to refer

only to those compliance orders that are predicated on

actual, not alleged, violations of the CWA, as found by

a district court in an enforcement action according to

traditional civil evidence rules and burdens of proof.

[13] Mindful of the Supreme Court’s repeated

instruction that “every reasonable construction must

be resorted to, in order to save a statute from

unconstitutionality,” Edward J. DeBartolo Corp. v. Fla.

Gulf Coast Bldg. & Const. Trades Council, 485 U.S.

568, 575 (1988) (quoting Hooper v. California, 155 U.S.

Appendix A~—12

648, 657 (1895)), we believe that the latter

interpretation is the better interpretation of “any

order” in § 1319(d). The EPA is authorized only “to

commence a civil action for appropriate relief,

including a permanent or temporary injunction, for any

violation for which [the EPA] is authorized to issue a

compliance order.” 33 U.S.C. § 1319(b) (emphasis

added). Read carefully, this provision does not

authorize the EPA to bring enforcement actions for

mere violations of compliance orders. Rather, to

enforce a compliance order, the EPA must bring an

action alleging a violation of the CWA itself. Given

that the CWA does not empower the EPA to bring an

enforcement action on the basis of a violation of a

compliance order alone, it follows that a court cannot

assess penalties for violations of a compliance order

under § 1319(d) unless the EPA also proves, by a

preponderance of the evidence, that the defendants

actually violated the CWA in the manner alleged."

Under this interpretation, if the EPA does not prove

that the CWA was actually violated, the compliance

order is unenforceable, even if it was validly issued on

the basis of “any information available.” We therefore

hold that the term “any order” in § 1319(d) refers only

to orders predicated on actual violations of the CWA as

identified by a district court in an enforcement

proceeding according to traditional rules of evidence

and standards of proof.

‘ This interpretation of the term “any order” is in accord with

other circuits readings of the CWA. See, e.g., Hoffman Group, 902

F.2d at 569 (‘Hoffman cannot be compelled to comply with the

Compliance Order without an opportunity to challenge the Order's

validity in court.”); S. Pines Assocs., 912 F.2d at 717 (“Southern

Pines and Vico can contest the existence of EPA’s jurisdiction if

and when EPA seeks to enforce the penalties provided by the

Act.”).

Appendix A—-13

The Sacketts further allege that forcing them to

wait until the EPA brings an enforcement action

“ignores the realities of [their] circumstances,” because

of the “frightening penalties” they risk accruing by

refusing to comply. The increase in penalties from

noncompliance with an administrative order not

subject to immediate judicial] review, however, does not

necessarily constitute a due process violation. See

Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 218

(1994) (“Although the [Mine] Act’s civil penalties

unquestionably may become onerous if petitioner

chooses not to comply, the Secretary's penalty

assessments become final and payable only after full

review by both the Commission and the appropriate

court of appeals.”). Rather, statutory preclusion of

pre-enforcement judicial review of administrative

orders violates due process only when the “practical

effect of coercive penalties for noncompliance [fis] to

foreclose all access to the courts” so that “compliance is

sufficiently onerous and coercive penalties sufficiently

potent that a constitutionally intolerable choice might

be presented.” Jd.

{14} We are not persuaded that the potential

consequences from violating CWA compliance orders

are so onerous so as to “foreclose all access to the

courts” and create a “constitutionally intolerable

choice.” We reach this conclusion for two reasons.

First, the CWA has a permitting provision. See 33

U.S.C. § 1344(a). The Sacketts could seek a permit to

fill their property and build a house, the denial of

which would be immediately appealable to a district

court under the APA. See 33 C.F.R. § 331.10; 5 U.S.C.

§ 704. If the Sacketts were denied a permit and then

took an appeal, they could challenge whether their

property is subject to the jurisdiction of the CWA. See

Appendix A—14

id.: Baccarat Fremont Devs., LLC v. U.S. Army Corps

of Eng’rs, 425 F.3d 1150, 1154 (9th Cir. 2005)

(concluding that the Army Corps had jurisdiction over

the plaintiffs property under the CWA). Therefore,

rather than completely foreclosing the Sacketts’ ability

to use their property or challenge CWA jurisdiction,

the CWA channels judicial review through the

affirmative permitting process. See Shalala v. Ill.

Council on Long Term Care, Inc., 529 U.S. 1, 19 (2000)

(noting the distinction “this Court has often drawn

between a total preclusion of review and postponement

of review” and highlighting similar “channeling

requirement(s]”); United States v. Dunifer, 219 F.3d

1004, 1008 (9th Cir. 2000) (“[I]t is important to note

that this is not a case in which Dunifer had no means

to obtain judicial review of the regulations. Dunifer

could have applied for a license and sought a waiver of

the applicable FCC rules... .” (citing Thunder Basin,

510 U.S. at 212-13)).

[15] Second, the civil penalties provision is

committed to judicial, not agency, discretion. See 33

U.S.C. § 1319(d). The amount of the penalty for

noncompliance with a CWA compliance order is to be

determined by a court and is determined on the basis

of six factors: (1) the seriousness of the violation,

(2) the economic benefit resulting from the violation,

(3) any history of CWA violations, (4) good-faith efforts

to comply, (5) the economic impact of the penalty on

the violator, and (6) such other matters as justice may

require. Jd. Any penalty ultimately assessed against

the Sacketts would therefore reflect a discretionary,

judicially determined penalty, taking into account a

wide range of case-specific equitable factors, and

imposed only after the Sacketts have had a full and

Appendix A—15

fair opportunity to present their case in a judicial

forum.

[16] We _ therefore hold that _ precluding

pre-enforcement judicial review of CWA compliance

orders does not violate due process.

In conclusion, we hold that it is “fairly

discernable” from the language and structure of the

Clean Water Act that Congress intended to preclude

pre-enforcement judicial review of administrative

compliance orders issued by the EPA pursuant to 33

U.S.C. § 1319(a)(3). We further interpret the CWA to

require that penalties for noncompliance with a

compliance order be assessed only after the EPA

proves, in district court, and according to traditional

rules of evidence and burdens of proof, that the

defendants violated the CWA in the manner alleged in

the compliance order. Thus we do not see any sharp

disconnect between the process given a citizen and

the likely penalty that can be imposed under the

CWA. Under these circumstances, preclusion of

pre-enforcement judicial review does not violate the

Sacketts’ due process rights. The district court

properly dismissed this case for lack of subject-matter

jurisdiction.’

AFFIRMED.

* Given this conclusion, we need not and do not reach the claims

of due process violations based on the failure to provide notice and

a hearing before an impartial tribunal or the contention that the

CWA compliance order provision is impermissibly vague.

Appendix B—-1

UNITED STATES COURT OF APPEALS

| FOR THE NINTH CIRCUIT

FILED Dec. 9, 2010

CHANTELL SACKETT No. 08-35854

and MICHAEL SACKETT, ;

Plaintiffs - Appellants, D.C. No. 2:08-cv-

00185-EJL

ei U.S. District Court

UNITED STATES hue Idaho. Boise

ENVIRONMENTAL .

PROTECTION AGENCY MANDATE

and STEVEN L.

JOHNSON, Administrator,

Defendants - Appellees.

The judgment of this Court,’ entered

September 17, 2010, takes effect this date.

This constitutes the formal mandate of this Court

issued pursuant to Rule 41(a) of the Federal Rules of

Appellate Procedure.

FOR THE COURT:

Molly C. Dwyer

Clerk of Court

Gabriela Van Allen

Deputy Clerk

Appendix C-—1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO,

NORTHERN DIVISION

FILED Aug. 7, 2008

CHANTELL and MICHAEL ) Case No. 08-cv-185-N

SACKETT, ) -EJL

Plaintiffs, )

) MEMORANDUM

Vv. ) ORDER

)

UNITED STATES )

ENVIRONMENTAL )

PROTECTION AGENCY: )

and STEPHEN L. )

JOHNSON, in his official )

capacity as Administrator of )

the Environmental Protection)

Agency, )

Defendants. )

)

Pursuant to Federal Rule of Civil Procedure

12(b)(1), Defendant United States Environmental

Protection Agency (“EPA”) moves to dismiss this action

for lack of subject matter jurisdiction. Plaintiffs

Chantell and Michael Sackett oppose the motion.

Having fully reviewed the record, the Court finds that

the facts and legal arguments are adequately

presented in the briefs and record. Accordingly, in the

interest of avoiding further delay, and because the

Court conclusively finds that the decisional process

would not be significantly aided by oral argument, this

Appendix C—2

matter shall be decided on the record before this Court

without oral argument.

Background

Plaintiffs own a parcel of undeveloped property

located at 1604 Kalispell Bay Road, near Kalispell

Creek, in Bonner County, Idaho. On November 26,

2007, EPA issued to Plaintiffs an Administrative

Compliance Order (“Compliance Order”)' pursuant to

sections 308 and 309(a) of the Clean Water Act (““CWA”

or “Act”), 33 U.S.C. §§ 1318 and 1319(a). The

Compliance Order charged that Plaintiffs, or persons

acting on their behalf. had violated section 301 of the

CWA, 33 U.S.C. § 1311, by discharging fill material

into regulated waters without first obtaining a permit.

The Compliance Order required Plaintiffs to remove

the fill material and restore the wetlands, and set forth

a schedule for the removal of the fill material and

replanting of the disturbed area.

The Compliance Order was revised by the EPA on

April 4, 2008 and again on May 1, 2008, to amend the

compliance schedule. Each Compliance Order

encouraged Plaintiffs “to engage in informal] discussion

of the terms and requirements of this Order upon

receipt,” and indicated that the Compliance Order

could be amended to provide for aJternative methods of

achieving compliance with the CWA. Each Compliance

Order also warned that “failure to comply with, the

foregoing Order may subject Respondents to (1) civil

penalties of up to $32,500 per day of violation pursuant

to section 309(d) of the Act, 33 U.S.C. § 1319(d), and 40

“A comphance order is a document served on the violator, setting

forth the nature of the violation and specifying a time for

compliance with the Act.” S. Pines Ass'n v. United States, 912 F.2d

713, 715 (4th Cir. 1990) (citing 33 U.S.C. § 1319(a)(5)(A)).

Appendix C-—3

C.F.R. Part 19; (2) administrative penalties of up to

$11,000 per day for each violation, pursuant to section

309(g) of the Act, 33 U.S.C. § 1319(g), and 40 C.F.R.

Part 19; or (3) civil action in federal court for injunctive

relief, pursuant to Section 309(b) of the Act, 33 U.S.C.

§ 1319(b).”

On April 28, 2008, Plaintiffs initiated the present

action, alleging that the property is not subject to CWA

jurisdiction and that the Compliance Order is a

violation of Plaintiffs’ due process rights. EPA, in turn,

moved to dismiss the Plaintiffs’ Complaint, contending

that the Court lacks subject matter jurisdiction over

the Plaintiffs’ claims.

Statutory Framework

Congress delegated the authority for enforcement

of CWA jointly to both the EPA and the Corps of

Engineers, and gave both agencies a range of

enforcement tools. Relevant here, the EPA can issue

administrative compliance orders or bring civil

enforcement actions in federal court. “The violator is

subject to the same injunction and penalties whether

or not EPA has issued a compliance order.” S. Pines

Ass'n v. United States, 912 F.2d 713, 715-16 (4th Cir.

1990). However, violation of an administrative

compliance order will not result in an injunction or

penalties until EPA brings an enforcement proceeding

in federal district court pursuant to section 309(b) of

the CWA, 33 U.S.C. § 1319(b). Jd. at 717. In any such

judicial proceeding, the alleged violator may raise all

defenses, including any challenges to the EPA's

assertion of jurisdiction over the activity at issue. /d.

Appendix C-—4

Discussion

The United States, as a sovereign, may not be

sued in federal court without its consent. United

States v. Testan, 424 U.S. 392, 399 (1976). Where the

United States has not consented to suit, the court lacks

jurisdiction over the subject matter of the action and

dismissa] is required. Hutchinson v. United States,

677 F.2d 1322, 1327 (9th Cir. 1982). The “party

bringing a cause of action against the federal

government bears the burden of showing an

unequivocal waiver of immunity.” Baker v. United

States, 817 F.2d 560, 562 (9th Cir. 1987).

The Plaintiffs have failed to carry their burden on

this issue. Plaintiffs first argue that the Court has

subject matter jurisdiction over Plaintiffs’ Complaint

because Plaintiffs seek declaratory and injunctive

relief to prevent an imminent due process injury.

According to Plaintiffs “{ijt is well established that the

district courts have jurisdiction to entertain such

claims.” (Pls.’ Opp’n at 2 (citing one district court case,

from the District of Columbia)).

Plaintiffs’ assertion, however, is incorrect. To the

contrary, “[iJt is well-settled that 28 U.S.C. § 1331,

granting district courts jurisdiction over cases arising

under the Constitution, is not a waiver of sovereign

immunity.” Humphreys v. United States, 62 F.3d 667,

673 (5th Cir. 1995). And it is similarly “settled that

{the Declaratory Judgment Act,] 28 U.S.C. § 2201, does

not itself confer jurisdiction on a federal court where

none otherwise exists.”. Amalgamated Sugar Co. v.

Bergland, 664 F.2d 818, 822 (10th Cir. 1981).

Therefore, the mere fact that Plaintiffs allege a

constitutional violation and ask for declaratory and

injunctive relief does not satisfy their burden of

Appendix C—5

establishing an unequivocal waiver of sovereign

immunity.

The Plaintiffs next assert that “[jJurisdiction is

also proper under the Administrative Procedure Act

(“APA”), 5 U.S.C. § 551, et seq., because the

Compliance Order constitutes ‘final agency action.”

(Pls.’ Opp’n at 1). In support of this theory, Plaintiffs

rely upon a Clean Air Act case from the Eleventh

Circuit, Tennessee Valley Authority (“TVA”) v.

Whitman, 336 F.3d 1236 (11th Cir. 2003), and argue

that TVA “applies analogously to support Plaintiffs’

contention that issuance of CWA compliance orders

without affording the regulated party an opportunity

to contest the basis of the order is unconstitutional.”

(Pls.’ Opp’n at 4).

There is no need, however, for the Court to resolve

the matter before it by applying Eleventh Circuit case

law interpreting the Clean Air Act.* That is because

there are numerous Circuit Court opinions addressing

the very same situation presented here, with all of

them finding that a district court lacks jurisdiction to

review a pre-enforcement compliance order issued

under the CWA. In all these opinions, the courts held

Furthermore, Plaintiffs neglect to mention that in 7VA the

Eleventh Circuit's actual conclusion was that “we lack jurisdiction

to review the ACO [administrative compliance order] because it

does not constitute ‘final’ agency action.” 226 F.3d at 1239. So

that even if the Court believed it appropriate to extend TVA’s

analysis of the Clean Air Act to the CWA, which it does not, it

would result in the very same outcome as here: dismissal of the

Plaintiffs’ action for lack jurisdiction. Jd. at 1260 (ruling that

“ACOs lack finality .. . [and] we thus conclude that courts of

appeals lack jurisdiction to review the validity of ACOs.”).

Plaintiffs also cite Alaska Dep't of Envtl. Conservation v. EPA, 244

F.3d 748, 750 (9th Cir. 2001), which like 7VA is a Clean Air Act

case and therefore is equally inapposite.

Appendix C—6

that, based on their interpretation of the legislative

history and structure of the CWA, Congress intended

to preclude judicial review of compliance orders prior

to the initiation of a civil action. Laguna Gatuna, Inc.

v. Browner, 58 F.3d 4564, 565-66 (10th Cuir.1995)

(holding that CWA did not provide for judicial review

of EPA compliance order); Southern Ohio Coal Co. v.

Office of Surface Mining, 20 F.3d 1418, 1426- 27 (6th

Cir.1994) (same); Reuth v. EPA, 13 F.3d 227, 229-30

(7th Cir. 1993) (holding that challenge to government's

right to assert jurisdiction over wetlands in proposed

development could not be brought unless government

initiates judicial enforcement action); Southern Pines

Assocs. v. United States, 912 F.2d 713 (4th Cir. 1990)

(holding that review of comphance orders issued under

CWA were precluded until judicial enforcement action

commenced); Hoffman Group Inc. v. EPA, 902 F.2d 567

(7th Cir. 1990) (same).

Moreover, it appears that every published district

court decision on this same issue, including one issued

within the last two months, also has concluded that

there is no jurisdiction over a administrative

comphiance order issued under the CWA. See, e.g.,

Acquest Wehrle LLC v. United States, F. Supp. 2d

___, 2008, 2008 WL 2522386 at *7 (W.D. N.Y. June 20,

2008); see also Def.s Mem at 13-14 (listing over ten

district court cases). The Court finds these opinions to

be well reasoned and consistent with the law.

Accordingly, the Court will follow the same in finding

that the Court lacks jurisdiction to review the

Compliance Order and granting EPA’s Motion to

Dismiss for lack of subject matter jurisdiction.

Appendix C—7

ORDER

Based on the foregoing, the Court being fully

advised in the premises it is HEREBY ORDERED

that the United States’ Motion to Dismiss Plaintiffs’

Complaint for Lack of Subject Matter Jurisdiction

(docket no. 14) is GRANTED.

IT IS FURTHER ORDERED that this case is

DISMISSED in its entirety.

DATED: August 7, 2008

/s/ Edward J. Lodge

Honorable Edward J. Lodge

U.S. District Judge

Appendix D—1

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED Nov. 29, 2010

CHANTELL SACKETT: No. 08-35854

I E

co ge gn D.C. No. 2:08-cv-

" 00185-EJL

ne District of Idaho,

UNITED STATES Boise

ENVIRONMENTAL

PROTECTION AGENCY: | ORDER

STEVEN L. JOHNSON,

Administrator,

Defendants - Appellees.

Before: BEEZER, GOULD and TALLMAN, Circuit

Judges.

The full court has been advised of Appellant's

Petition for Rehearing En Banc, and no judge of the

court has requested a vote on the Petition for

Rehearing En Banc. Fed. R. App. P. 35. Appellant’s

Petition for Rehearing En Banc is DENIED.

Appendix E—1

LESLIE R. WEATHERHEAD FILED Apr. 28, 2008

lwlibertas@aol.com

Idaho Bar No. 3916

Witherspoon Kelley Davenport & Toole

422 West Riverside Avenue, Suite 1100

Spokane, Washington 99201

Telephone: (509) 624-5265

Facsimile: (509) 458-2728

M. REED HOPPER (pro hac vice pending)

mrh@pacificlegal.org

Cal. Bar No. 131291

DAMIEN M. SCHIFF (pro hac vice pending)

dms@pacificlegal.org

Cal. Bar No. 235101

Pacific Legal Foundation

3900 Lennane Drive, Suite 200

Sacramento, California 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO,

NORTHERN DIVISION

CHANTELL and MICHAEL ) Case No.

SACKETT, )

Plaintiffs, ) COMPLAINT FOR

) DECLARATORY

v. ) AND INJUNCTIVE

) RELIEF

UNITED STATES )

ENVIRONMENTAL )

Appendix E—2

PROTECTION AGENCY, )

and STEPHEN L. )

JOHNSON, in his official )

capacity as Administrator of )

the Environmental! Protection)

Agency, )

Defendants. )

= 4 )

PARTIES

6. Plaintiffs Chantell and Michael Sackett own the

property that is the subject of this action.

Plaintiffs own Sackett Construction, a small

construction company located at Priest Lake,

Idaho. They do work around Priest Lake, and also

on projects further south in Coeur D’Alene and

Spokane. Plaintiffs purchased the property with

the intention to build a house on it. They applied

for and obtained the requisite building permits.

Nothing in the title documents or title policy

indicated any limitation on development.

* * * —

FACTUAL ALLEGATIONS

Plaintiffs own a 63-acre dirt lot parcel located at

1604 Kalispell Bay Road, in Bonner County,

Idaho. The property is presently undeveloped.

The property is bounded to the north by Kalispell

Bay Road, to the east and west by undeveloped

lots, and to the south by Old Schneider Road.

The property lies to the north of Priest Lake. A

ditch runs along the north side of Kalispell Bay

Appendix E-3

Road. Water in that ditch flows westward until

discharging in Kalispell Creek, which is

approximately 500 feet west of the property.

There is no ditch on the south side of Kalispell

Road. Between the property and Priest Lake are

several developed lots with numerous permanent

structures.

Appendix F-1

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

REGION 10

1200 Sixth Avenue, Suite 900

Seattle, Washington 98101-3140

Reply to: ETPA-083

May 15, 2008

SE 1A CERTIFIED L-RETURN RECEIPT

REQUESTED

Chantell and Michael Sackett

P.O. Box 425

Nordman, ID 83848-0368

Re: In the Matter of Chantell and Michael Sackett

Amended Administrative Compliance Order,

EPA Docket No. CWA-10-2008-0014

Dear Mr. and Mrs. Sackett:

With this letter, the U.S. Environmental

Protection Agency (EPA) is issuing an amended

administrative compliance order (“Amended

Compliance Order”) that supersedes and replaces the

order issued to you on November 26, 2007. The

Amended Compliance Order is issued pursuant.

Sections 308 and 309(a) of the Clean Water Act, 33

U.S.C. §§ 1318 and 1319{a). EPA is issuing this order

in connection with the unauthorized placement of fill

material into wetlands at your property located at 1604

Kalispell Bay Road near Kalispell Creek, Bonner

County, Idaho (“Site”).

Appendix F—2

It has become apparent that the amended dates for

compliance detailed in my letter to you dated May 1,

2008, may not result in successful establishment of

revegetated wetland species at the Site because of the

short growing season in northern Idaho. Please note

that this Amended Compliance Order removes the

obligation that wetland vegetation be re-planted at the

Site by July 1, 2008. In addition, the Amended

Compliance Order extends the date for removal of fill

material and replacement of original wetland soils to

October 31, 2008 (ahead of the winter season when

removal of fill material and replacement of wetland

soils would be infeasible). Since replanting will not be

required in the 2008 growing season, there is no need

to require the immediate removal of fill material. This

Amended Compliance Order will account for the

ecological constraints in northern Idaho and will also

remove the need for immediate judicial resolution of

EPA’s motion to dismiss the complaint (Case No. CV-

08-0185-EJL) you filed on April 28, 2008.

Successful compliance with the Amended

Compliance Order does not preclude EPA from

bringing a formal enforcement action for penalties or

further injunctive relief to address the Clean Water

Act violations associated with your property located at

the Site. Please also be aware that failure to comply

with the Amended Compliance Order may subject you

to civil penalties of up to $32,500 per day for each

violation, administrative penalties of up to $11,000 per

day for each day during which the violation continues

or a civil action in Federal court for injunctive relief,

pursuant to Section 309 of the CWA, 33 U.S.C. § 1319.

Appendix F--3

Should you have any questions concerning this

matter, please have your attorney contact Mr. Ankur

Tohan directly at 206-553-1796.

Sincerely,

/s/ Richard B. Parkin

Richard Parkin, Acting Director

Office of Ecosystems, Tribal,

and Public Affairs

ec: H. Reed Hopper, Pacific Legal Foundation

Damien Schiff. Pacific Legal Foundation

Leshe Weatherhead, Witherspoon,

Kelley, Davenport & Toole

Greg Taylor, ID Dept. of Water Resources

Beth Rienhart, U.S. Army Corps of Engineers

Appendix G—1

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

REGION 10

1200 Sixth Avenue, Suite 900

Seattle, Washington 98101

In the Matter of:

)

CHANTELL AND ) DOCKET NO.

MICHAEL SACKETT ) CWA-10-2008-0014

)

Bonner County,Idaho ) AMENDED

) COMPLIANCE

Respondents. ) ORDER

)

The following FINDINGS AND CONCLUSIONS

are made and ORDER issued pursuant to the authority

vested in the Administrator of the United States

Environmental Protection Agency (“EPA”) by sections

308 and 309(a) of the Clean Water Act (“the Act”), 33

U.S.C. §§ 1318 and 1319(a). This authority has been

delegated to the Regional Administrator. Region 10,

and has been duly redelegated to the undersigned

Director of the Office of Ecosystems, Tribal and Public

Affairs. This AMENDED COMPLIANCE ORDER

(“Order”) supersedes and replaces the Compliance

Order issued under Docket Number CWA-10-2008-

0014 to Respondents on November 26, 2007.

I. F AND CONCLUSIONS

1.1 Section 301(a) of the Act, 33 U.S.C.

§ 1311(a), prohibits the discharge of pollutants into

waters of the United States by any person, except as

authorized by a permit issued pursuant to section 402

Appendix G—2

or 404 of the Act, 33 U.S.C. §§ 1342 or 1344. The

unpermitted discharge of any pollutant from a point

source constitutes a violation of section 301(a) of the

Act, 33 U.S.C. § 1311(a). Section 502(12), 33 U.S.C.

§ 1362(12), defines the term “discharge of any

pollutant” to include “any addition of any pollutant to

navigable waters from any point source.” “Navigable

waters” are defined as “waters of the United States.”

33 U.S.C. § 1362(7).

1.2. Respondents Chantell and Michael Sackett

(hereinafter collectively “Respondents”) are “persons”

within the meaning of Sections 301(a) and 502(5) of the

Act, 33 U.S.C. §§ 1311(a) and 1362(5).

1.3. Respondents own, possess, or control real

property identified as 1604 Kalispell Bay Road near

Kalispell Creek, Bonner County, Idaho; and located

within Section 12, Township 60 North, Range 5 West,

Boise Meridian (“Site”). The Site is adjacent to Priest

Lake, and bounded by Kalispell Bay Road on the north

and Old Schneider Road on the south.

1.4 The Site contains wetlands within the

meaning of 40 C.F_R. § 230.3(t) and 33 C.F.R.

§ 328.3(b); and the wetlands meet the criteria for

jurisdictional wetlands in the 1987 “Federal Manual

for Identifying and Delineating Jurisdictional

Wetlands.”

1.5 The Site’s wetlands are adjacent to Priest

Lake within the meaning of 40 C.F.R. § 230.3(s)(7) and

33 C.F.R. § 328.3(a)(7). Priest Lake is a “navigable

water” within the meaning of section 502(7) of the Act,

33 U.S.C. § 1362(7), and “waters of the United States”

within the meaning of 40 C.F.R. § 232.2

Appendix G—3

1.6 In April and May, 2007, at times more fully

known to Respondents, Respondents and/or persons

acting on their behalf discharged fill material into

wetlands at the Site. Respondents filled approximately

one half acre.

1.7 Upon information and belief, Respondents

and/or persons acting on their behalf used heavy

equipment to place the fill material into the wetlands.

The heavy equipment used to fill these waters is a

“point source” within the meaning of section 502(14) of

the Act, 33 U.S.C. § 1362(14).

1.8 The fill material that Respondents and/or

persons acting on their behalf caused to be discharged

included, among other things, dirt and rock, each of

which constitutes a “pollutant” within the meaning of

section 502(6) of the Act, 33 U.S.C. § 1362(6).

1.9 Bycausing such fill material to enter waters

of the United States, Respondents have engaged, and

are continuing to engage, in the “discharge of

pollutants” from a point source within the meaning of

sections 301 and 502(12) of the Act, 33 U.S.C. §§ 1311

and 1362(12).

1.10 Respondents’ discharges of dredged and/or

fill material was not authorized by any permit issued

pursuant to section 402 or 404 of the Act, 33 U.S.C.

§§ 1312 or 1314.

1.11 Respondents discharge of pollutants into

waters of the Untied States at the Site without a

permit constitutes a violation of section 301 of the Act,

33 U.S.C. § 1311.

Appendix G-—4

1.12 As of the effective date of this Order, the fill

material referenced in Paragraph 1.6 above remains in

place.

1.13 Each day the fill material remains in place

without the required permit constitutes an additional

day of violation of Section 301(a) of the Act, 33 U.S.C.

§ 1311(a).

1.14 Taking into account the seriousness of this

violation and Respondents’ good faith efforts to comply

with applicable requirements, the schedule for

compliance contained in the following Order is

reasonable and appropriate.

Il. ORDER

Based upon the foregoing FINDINGS AND

CONCLUSIONS and pursuant to sections 308 and

309(a) of the Clean Water Act, 33 U.S.C. §§ 1318 and

1319(a), it is hereby ORDERED as follows:

2.1 In compliance with the Clean Water Act,

Respondents shall remove all unauthorized fill

material placed within wetlands located at Section 12,

Township 60 North, Range 5 West, Boise Meridian

(“Site”). The removed fill material is to be moved toa

location approved by the EPA representative identified

in Paragraph 2.8. Tothe maximum extent practicable,

the Site shall be restored to its original, pre-

disturbance topographic condition with the original

wetlands soils that were previously removed from the

Site. Acceptable reference topographic conditions exist

on wetlands immediately adjacent to and bordering the

Site.

Appendix G—5

2.2 Compliance activities described under

Paragraph 2.1 must be completed no later than

October 31, 2008.

2.3 At least 48 hours prior to commencing

compliance activity on the Site, Respondents shall

provide verbal notification to the EPA representative

identified in Paragraph 2.8.

2.4 Within 7 days of completion of the

compliance activities under Paragraph 2.1,

Respondents shall notify, in writing, the EPA

representative identified in Paragraph 2.8. The

written notification shall include photographs of Site

conditions prior to and following compliance with this

Order.

2.5 Upon receipt of the notification referenced

under Paragraph 2.4, EPA may schedule an inspection

of the Site by EPA or its designated representative.

2.6 Respondents shall provide and/or obtain

access to the Site and any off-Site areas to which

access 1s necessary to implement this Order; and shall

provide access to all records and documentation related

to the conditions at the Site and the restoration

activities conducted pursuant to this Order. Such

access shall be provided to EPA employees and/or their

designated representatives, who shall be permitted to

move freely at the site and appropriate off-site areas in

order to conduct actions that EPA determines to be

necessary.

2.7 EPA encourages Respondents to engage in

informal discussion of the terms and requirements of

this Order. Such discussions should address any

questions Respondents have concerning compliance

with this Order. In addition, Respondents are

Appendix G—6

encouraged to discuss any allegations herein which

Respondents believe to be inaccurate or requirements

which may not be attainable and the reasons why.

Alternative methods to attain the objectives of this

Order may be proposed. If acceptable to EPA, such

proposals may be incorporated into amendments to

this Order at EPA's direction. After compliance with

the requirements of this Order, Respondents are also

encouraged to contact the EPA representative

identified in Paragraph 2.8 to discuss restoration of the

Site to its pre-disturbance, vegetative condition.

2.8 All submissions and notifications required

by this ORDER shall be sent to:

John Olson

U.S. EPA, Idaho Operations Office

1435 North Orchard Street

Boise, ID 83706

Phone: (208) 378-5756

Fax: (208) 378-5744

2.9 Prior to the completion of the terms of this

Order, Respondents shall provide any successor in

ownership, control, operation, or any other interest in

all or part of the Site, a copy of this Order at least 30

days prior to the transfer of such interest. In addition,

Respondents shall simultaneously notify the EPA

representative identified in Paragraph 2.8 in writing

that the notice required in this Section was given. No

real estate transfer or real estate contract shall in any

way affect Respondent’s obligation to comply fully with

the terms of this Order.

2.10 This Order shall become effective on the

date it is signed.

Appendix G—7

Ill. SANCTION

3.1 Notice is hereby given that violation of, or

failure tocomply with, the foregoing Order may subject

Respondents to (1) civil penalties of up to $32,500 per

day of violation pursuant to section 309(d) of the

Act, 33 U.S.C. § 1319(d), and 40 C.F.R. Part 19;

(2) administrative penalties of up to $11,000 per day

for each violation, pursuant to section 309(g) of the Act,

33 U.S.C. § 1319(g), and 40 C.F_R. Part 19; or (3) civil

action in federal court for injunctive relief, pursuant to

Section 309(b) of the Act, 33 U.S.C. § 1319(b).

3.2 Nothing in this Order shall be construed to

relieve Respondents of any applicable requirements of

federal, state, or local law. EPA reserves the right to

take enforcement action as authorized by law for any

violation of this Order, and for any future or past

violation of any permit issued pursuant to the Act or of

any other applicable legal requirements, including, but

not limited to, the violations identified in Part I of this

Order.

Dated this 15th day of May, 2008

/s/ Richard B. Parkin

RICHARD PARKIN, Acting Director

Office of Ecosystems, Tribal and Public Affairs

Appendix H-1

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

REGION 10

1200 Sixth Avenue, Suite 900

Seattle, Washington 98101-3140

Reply to: ORC-158

May 1, 2008

SENT VIA CERTIFIED MAIL-RETURN RECEIPT

REQUESTED

Chantell and Michael Sackett

P.O. Box 425

Nordman, ID 83848-0368

Re: In the Matter of Chantell and Michael Sackett

Administrative Compliance Order,

EPA Docket No. CWA-10-2008-0014

Dear Mr. and Mrs. Sackett:

With this letter, the U.S. Environmental

Protection Agency (EPA) is modifying the terms of the

administrative compliance order (“Compliance Order’)

issued to you on November 26, 2007. The Compliance

Order requires you to perform specified restoration

activities including, but not limited to, removal of

unauthorized fill and restoration of the site. Activities

under the Compliance Order were modified on April 4,

2008, to account for ground conditions making fill

removal and re-planting infeasible. The modified

Compliance Order required to fill removal to begin on

May 1, 2008, and re-planting to be completed on

May 30, 2008. The specific elements for all activates in

Appendix H-—2

the compliance Order are detailed in the Scope of Work

for Restoration Work Plan attached to and

incorporated into the compliance Order.

EPA has learned that snow cover and low

temperatures continue to persist in the Priest Lake

area. Consequently, ground conditions remain

unfavorable for fill removal and re-planting at this

time. Therefore, EPA is extending the deadlines for fill

removal and replacement of the wetland soil to June 2,

2008, and for re-planting the site to July 1, 2008.

These revisions change Section 2.2 and Section 2.6 of

the Compliance Order and Section IJI.1., Section II.7.,

and Section VI.1. of the Scope of Work for a

Restoration Work Plan. The complete revised schedule

is as follows.

Action Commence- Completion

ment No No Later

Later Than Than

Fill shall be June 2, 2008 June 15,

removed and 2008'

wetland soil

returned

' At least 48 hours prior to commencing removal] activity on the

Site, Respondents shall provide verbal notification to the EPA

representative identified in Paragraph 2.12 of the Order. Within

7 days of completion of the earthmoving work, Respondents shall

notify, in writing, the EPA representative identified in Paragraph

2.12 or the Order. The written notification shall include

photographs of Site conditions prior to and following earthmoving

activities.

Appendix H-3

EPA or its As soon as Prior to

representative possible after planting

conducts an notification

inspection of Site

Re-Planting of June 15, 2008 | July 1, 2008°

the entire Site

Monitoring of October 1, 2008 October 31,

the entire Site 2008

Monitoring of June 1, 2009 June 31, 2009

the entire Site

Monitoring of October 1, 2009 | October 31,

the entire Site 2009

Monitoring of October 1, 2010 | October 31,

the entire Site 2010

Should vou have any questions concerning this

matter, please have your attorney contact Mr. Ankur

Tohan directly at 206-553-1796.

Thank you for your cooperation.

Sincerely,

/s/ Richard B. Parkin

Richard Parkin

Acting Director,

Office of Ecosystems, Tribal,

and Public Affairs

- Within 7 days of completion of re-planting work, Respondents

shall notify. in writing, the EPA representative identified in

Paragraph 2.12 of the Order. The written notification shall

include photographs of Site conditions prior to and following re-

planting.

Appendix H—4

ec: John Olson (IOQO)

Ankur Tohan (ORC)

H. Reed Hopper

Damien Schiff

Leslie Weatherhead

Appendix I-—1

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

REGION 10

IDAHO OPERATIONS OFFICE

1435 N. Orchard St.

Boise, Idaho 83706

April 4, 2008

Chantell and Michael Sackett

P.O. Box 425

Nordman, ID 83848-0368

Re: In the Matter of Chantell and Michael Sackett

Administrative Compliance Order,

EPA Docket No. CWA-10-2008-0014

Dear Mr. and Mrs. Sackett:

This is in further regard to the administrative

compliance order (“Compliance Order”) issued to you

by the U.S. Environmental Protection Agency (EPA)

dated November 26, 2007. The Compliance Order

requires you to perform specified restoration activities

including, but not limited to, removal of the

unauthorized fill and restoration of the site. The

specific elements are detailed in the Scope of Work for

a Restoration Work Plan which is attached to and

incorporated into the Compliance Order. Deadline for

removal of the fill and replacement of the wetland soil

is April 15, 2008; deadline for re-planting of the site is

April 30, 2008.

Appendix I—2

EPA is aware that the site is still covered by a

substantial amount of snow, thereby making the fill

removal and re-planting not feasible at this time.

Therefore, EPA is extending the deadline for removal

of the fill and replacement of the wetland soil to

May 15, 2008 and the deadline for re-planting of the

site to May 30, 2008. These revisions change Section

2.2 and Section 2.6 of the Compliance Order and

Section II.1., Section II.7., and Section VI.1. of the

Scope of Work for a Restoration Work Plan. The

complete revised schedule is as follows:

Action Commence- Completion

ment No No Later

Later Than Than

Fill shall be May 1, 2008 May 15,

removed and 2008’

wetland soil

returned

EPA or its As soon as Prior to

representative possible after planting

conducts an notification

inspection of Site

' At least 48 hours prior to commencing removal activity on the

Site, Respondents shall provide verbal notification to the EPA

representative identified in Paragraph 2.12 of the Order. Within

7 days of completion of the earthmoving work, Respondents shall

notify, in writing, the EPA representative identified in Paragraph

2.12 or the Order. The written notification shal] include

photographs of Site conditions prior to and following earthmoving

activities.

Appendix I—3

Re-Planting of May 15, 2008 May 30,

the entire Site 2008"

Monitoring of October 1, 2008 | October 31,

the entire Site 2008

Monitoring of June 1, 2009 | June 31, 2009

the entire Site

Monitoring of October 1, 2009 October 31,

the entire Site 2009

Monitoring of October 1, 2010 | October 31,

the entire Site 2010

If you should have any technical questions

regarding the restoration effort, please feel free to

contact me at 208-378-5756. For other questions

concerning this matter, please contact Ankur Tohan

with the EPA Office of Regional Counsel at 206-553-

1796.

Thank you for your cooperation in this matter.

Sincerely,

/s/ John M. Olson

John M. Olson

Wetland Ecologist

~ Within 7 days of completion of re-planting work, Respondents

shall notify, in writing, the EPA representative identified in

Paragraph 2.12 of the Order. The written notification shal!

include photographs of Site conditions prior to and following re-

planting.

Appendix I—4

ec: Ankur Tohan, EPA ORC-158

Barbara Benge, Corps of Engineers, Walla Walla

Mr. Leshe R. Weatherhead

Witherspoon, Kelley, Davenport & Toole

608 Northwest Boulevard, Suite 401

Coeur d’Alene, ID 83814-2146

OPPOSITION

BRIEF

No. 10-1062

In the Supreme Court of the Anited States

CHANTELL SACKETT AND MICHAEL SACKETT,

PETITIONERS

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

NEAL KUMAR KATYAL

Acting Solicitor General

Counsel of Record

IGNACIA S. MORENO

Assistant Attorney General

AARON P. AVILA

JENNIFER SCHELLER NEUMANN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

202) 514-2217

QUESTION PRESENTED

Whether the prohibition on pre-enforcement judicial

review of administrative compliance orders imposed by

the Clean Water Act, 33 U.S.C. 1251 et seq., violates peti-

tioners’ rights under the Due Process Clause.

(I)

< a tinia tina ih aot

a a

feat shat Wear Thay TeAVitTeRY thea Fett

TABLE OF CONTENTS

Page

SRO kp kak naw dcese0snkceeee Fin bcd eeenetaans l

rRNA RR re Che FURR SH Rn eet nn Mane BME dS 1

aca ie ile wa ga Wey bale MDS eEebe Cae R eek ewe es 2

ee aa ar ie td es a rane aed 7

ne ae eld cater widens rian ears as hls eae 15

TABLE OF AUTHORITIES

Jases:

Baccarat Fremont Developers, LLC v. United States

Army Corps of Eng’rs, 425 F.3d 1150 (9th Cir.

2005), cert. denied, 549 U.S. 1206 (2007) ............. 3

Edward J. DeBartolo Corp. v. Florida Gulf Coast

Bldg. & Constr. Trades Council, 485 U.S. 568

CNG 5 6555s bcs TRE ANRASR COND RERUN ROR EKR Ee 14

Hoffman Group, Inc. v. EPA, 902 F.2d 567

SP DEE oocenShawcepeseSeuceanees 6, 8,9, 11,13

INS v. St. Cor, GEB UB. BBO CBG) onc cc cccccscccccess 14

Laguna Gatuna, Inc. v. Browner, 58 F.3d 564 (10th

Cir. 1995), cert. denied, 516 U.S. 1071 (1996) ....... 5,8

Mathews v. Eldridge, 424 U.S. 319 (1976) ............. 15

Southern Ohio Coal Co. v. Office of Surface Mining,

Reclamation & Enforcement, 20 F.3d 1418 (6th

Cir.), cert. denied, 513 U.S. 927 (1994) ............ 5, 11

Southern Pines Assocs. v. United States, 912 F.2d 713

I, a a Cake Ot Eh ta eh a od ae 6, 8, 11

Tennessee Valley Auth. v. Whitman, 336 F.3d 1236

(11th Cir. 2003), cert. denied, 541 U.S. 1030

(111)

Cases—Continued: Page

Thunder Basin Coal Co. v. Reich, 510 U.S. 200

nn, PELE ETE TEE OPE EEO DE ep EE 6, 8, 10

United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56

i EE OE oe EID aes te He a RES 15

United States v. Brace, 41 F.3d 117 (3d Cir. 1994),

cert. denied, 515 U.S. 1158 (1995) ................... i)

United States v. Scruggs, No. G-06-776, 2009 WL

500608 (S.D. Tex. Feb. 26, 2009) ................... 10

West Va. Highlands Conservancy, Inc. v. Huffman,

625 F.3d 159 (4th Cir. 2010) .... 2.0000. 10

Constitution, statutes and regulations:

U.S. Const. Amend. V, § 1 (Due Process Clause) ....5,7,8

Administrative Procedure Act:

5 AE ap Gi Runs A Spahnibes bck t 3, 10

ee Pag coe Oe ote 5

Clean Water Act, 33 U.S.C. 1251 et seq.:

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co I Rs PE Be kA. 4

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ee I ee GAs aco ceo tuts teuins passim

octet, AMR MA VER, Sear RE re 1G Be 3

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ee I ot eS ete A ere 3

ee RM yl ce es Sas dee wad Seo cis cat 2

ee I a's Soe aie seed aa tae cule 2,10

Statutes and regulations—Continued: Page

Se I ED a's ail xu bw ake en's Anouk ne patenweneuk 2

ee I rg a's eee sad Cawaaon swe raioude 2

ee I occas ctuliusseseeebeeeehea bes 2

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ee es SN 6a oe 45a coe ReReaNs bane eeewes as 2

SP ES Jud usar ciwncdebakvanscaanakae kee 2

ee a EE bh aee sk Davee Nek dss be eek aceon ecdene 2

RE eeepc eter tne te thnn e pre pees ben ee 14

Oe Sy SEED Neda cokes wessccesncedkcatescds 12

33 C.F.R.:

Pt. 19:

PE- Si cctcagee cus cee e ces Ras eee aeeces ens 2

PRE oy 6h 5 o-cat ns Co ekepeet wt eeCeReeOcuaeee 3

PUM 3 esis bSaoe erase bcp ach canbe caeeesseeeiass 3

SE 0-6. 0 hs wk O eb eb ASO Re Ee Rhee KA 10

40 C.F.R.

PE cena nhabasudesav acccusUs boas erielcs tebe 4

PCP er eee ee ere ore 9

In the Supreme Court of the Gnited States

No. 10-1062

CHANTELL SACKETT AND MICHAEL SACKETT,

PETITIONERS

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, FT AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-

A15) is reported at 622 F.3d 1139. The opinion of the

district court (Pet. App. C1-C7) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

September 17, 2010. A petition for rehearing was denied

on November 29, 2010 (Pet. App. D1). The petition for

a writ of certiorari was filed on February 23, 2011. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

STATEMENT

1. Congress enacted the Clean Water Act (CWA),

33 U.S.C. 1251 et seg., “to restore and maintain the

chemical, physical, and biological integrity of the Na-

tion’s waters,” 33 U.S.C. 1251(a). The CWA prohibits

the “discharge of any pollutant by any person” except in

compliance with the Act. 33 U.S.C. 1311(a). The term

“pollutant” is defined to include, inter alia, “dredged

spoil,” “rock,” and “sand.” 33 U.S.C. 1362(6). “(Dlis-

charge of a pollutant” is defined to mean “any addition

of any pollutant to navigable waters from any point

source.” 33 U.S.C. 1362(12). The Act defines “navigable

waters” to mean “the waters of the United States, in-

cluding the territorial seas.” 33 U.S.C. 1362(7).

The CWA establishes two complementary permitting

schemes. Section 1344 of Title 33 authorizes the Secre-

tary of the Army, acting through the United States

Army Corps of Engineers (Corps), or a State with an

approved program, to issue a permit “for the discharge

of dredged or fill material into the navigable waters at

specified disposal sites.” 33 U.S.C. 1344(a) and (g)-(h).

Section 1342 authorizes the United States Environmen-

tal Protection Agency (EPA), or a State with an ap-

proved program, to issue a National Pollutant Discharge

Elimination System permit for the discharge of pollut-

ants other than dredged or fill material. See 33 U.S.C.

1342.

The Corps and EPA share responsibility for imple-

menting and enforcing the CWA’s permitting provisions.

See, e.g., 33 U.S.C. 1344(b) and (c). The two agencies

have promulgated regulations governing the Corps’ pro-

cessing and issuance of Section 1344 permits. See

33 C.F.R. Pts. 320-325; 40 C.F.R. Pt. 230. After com-

pleting its review of a permit application, the Corps

must determine whether to issue the permit with or

without conditions, or to deny the permit. See 33 C.F.R.

Pts. 325-326. Subject to the administrative-appeal pro-

cess, the Corps’ issuance or denial of a permit consti-

tutes final agency action that is subject to judicial re-

view under the Administrative Procedure Act (APA),

5 U.S.C. 704. See, e.g., Baccarat Fremont Developers,

LLC v. United States Army Corps of Eng’rs, 425 F.3d

1150, 1153-1154 (9th Cir. 2005), cert. denied, 549 U.S.

1206 (2007); 33 C.F.R. Pt. 331.

Apart from the CWA’s permitting provisions, the Act

and its implementing regulations provide the Corps and

EPA with a number of different mechanisms by which to

enforce the Act’s prohibition on discharging pollutants

into regulated waters. See, e.g., 33 U.S.C. 1319, 1344(n)

and (s). As relevant here, when EPA finds “that any

person is in violation of section 1311” or other enumer-

ated provisions of the CWA, the agency shall either “is-

sue an [administrative compliance] order requiring such

person to comply with such section or requirement,”

or bring a civil action to enforce the Act. 33 U.S.C.

1319(a)(3). Section 1319(b), in turn, authorizes EPA to

initiate a judicial enforcement action for appropriate

relief, including a temporary or permanent injunction,

“for any violation for which [EPA] is authorized to issue

a compliance order” under Section 1319(a)(3). 33 U.S.C.

1319(b). In an action brought under Section 1319(b), the

district court may impose civil penalties for violation of

the Act and for violation of an administrative compliance

order issued pursuant to Section 1319(a)(3).’ 33 U.S.C.

1319(d).

' Other enforcement mechanisms include criminal prosecutions for

negligent or knowing violations of the Act, 33 U.S.C. 1319(c), and ad-

ministrative penalty orders for violations of the Act, 33 U.S.C. 1319(g).

Administrative compliance orders issued under Sec-

tion 1319(a)(3) thus are not self-executing. If the recipi-

ent of a compliance order fails to obey its requirements,

EPA may enforce the order only by filing a civil action

under Section 1319(b). In such an action, EPA may seek

injunctive relief for violations of the Act, as well as civil

penalties for statutory violations and for failure to obey

the administrative compliance order. 33 U.S.C. 1319(b)

and (d). Before determining the amount of civil penal-

ties, the court must consider several factors, includ-

ing “the seriousness of the violation or violations,” “any

good-faith efforts to comply with the applicable require-

ments, the economic impact of the penalty on the viola-

tor, and such other matters as justice may require.”

33 U.S.C. 1319(d).

2. Petitioners own a .63-acre parcel of undeveloped

property in Idaho near Priest Lake. See Pet. App. A2.

On November 26, 2007, EPA issued an administrative

compliance order to petitioners pursuant to Section

1319(a). See id. at A3. The compliance order stated that

petitioners had violated 33 U.S.C. 1311(a) by discharg-

ing fill material into regulated waters and wetlands

without a permit. Pet. App. A3. The compliance order

directed petitioners to remove the fill material and re-

store the wetlands, but it also “encouraged” petitioners

to contact EPA and “discuss any allegations herein

which [petitioners] believe to be inaccurate or require-

ments which may not be attainable and the reasons

why.” Ibid.; id. at Gb-G6. The compliance order stated

that failure to comply with the order could expose peti-

tioners to “civil penalties of up to $32,500 per day of vio-

lation,” as well as administrative penalties. /d. at G7

(citing 33 U.S.C. 1319(d), 40 C.F.R. Pt. 19). EPA re-

vised the compliance order on three occasions, extending

the compliance schedule. See id. at F1-F3, G1-G7, H1-

H4, 11-14.

Petitioners did not comply with the order. Instead,

they requested a formal hearing with EPA, asserting

that the wetlands at issue were not regulated by the

CWA. Pet. App. A3. EPA did not grant the hearing re-

quest. /bid.

3. Petitioners then filed suit in the District Court for

the District of Idaho, alleging, inter alia, that the com-

pliance order was arbitrary and capricious under the

APA, 5 U.S.C. 706(2)(A), and that the order violated

their rights under the Due Process Clause because it

was issued without a hearing. Pet. App. A3. EPA

moved to dismiss the complaint for lack of subject mat-

ter jurisdiction. /bid. The district court granted EPA’s

motion and dismissed the suit. The court held that the

CWA’s text and structure indicated that Congress in-

tended to preclude pre-enforcement judicial review of

CWA compliance orders by channeling review of such

orders into enforcement actions initiated by EPA under

Section 1319(b). Jd. at C1-C7.

4. The court of appeals affirmed. Pet. App. Al-A15.

The court explained that “[elvery circuit that has con-

fronted this issue has held that the CWA impliedly pre-

cludes judicial review of compliance orders until the

EPA brings an enforcement action in federal dis-

trict court.”” Jd. at A6 (citing Laguna Gatuna, Inc. v.

Browner, 58 F.3d 564 (10th Cir. 1995), cert. denied,

516 U.S. 1071 (1996); Southern Ohio Coal Co. v. Office of

Surface Mining, Reclamation & Enforcement, 20 F.3d

1418 (6th Cir.), cert. denied, 513 U.S. 927 (1994); and

* Petitioners do not challenge that statutory holding in this Court.

See Pet. 8-17.

Hoffman Group, Inc. v. EPA, 902 F.2d 567 (7th Cir.

1990); Southern Pines Assocs. v. United States, 912 F.2d

713 (4th Cir. 1990)). The court stated that it found

“(t]he reasoning of these courts * * * persuasive.” /d.

at A7; see id. at A7-A9.

The court of appeals further held that the CWA’s

preclusion of pre-enforcement judicial review of compli-

ance orders does not violate petitioners’ due process

rights. Pet. App. Al0-A15. The court rejected petition-

ers’ argument that the court in a CWA enfercement ac-

tion may impose penalties for violation of the compliance

order regardless of whether petitioners violated the

CWA. /d. at Al10-A12. The court explained that, under

the CWA’s judicial-enforcement provision, EPA may

bring an action “for any violation for which [the EPA] is

authorized to issue a compliance order.” I/d. at Al2

(quoting 33 U.S.C. 1319(b)). The court construed that

provision to mean that, in order “to enforce a compliance

order, the EPA must bring an action alleging a violation

of the CWA itself.” bid. Accordingly, the court held

that “a [district] court cannot assess penalties for viola-

tions of a compliance order under [Section] 1319(d) un-

less the EPA also proves, by a preponderance of the

evidence, that the defendants actually violated the CWA

in the manner alleged.” /bid.

The court of appeals also rejected petitioners’ argu-

ment that the potential civil penalties to which a compli-

ance order exposes a recipient effectively prevent them

from seeking judicial review. Pet. App. Al3-A15. Rely-

ing on Thunder Basin Coal Co. v. Reich, 510 U.S. 200,

218 (1994), the court explained that statutory preclusion

of pre-enforcement judicial review violates due process

only when compliance is so onerous, and the penalties

for noncompliance so coercive, as to have the practical

effect of foreclosing access to the courts. Pet. App. Al3.

The court observed that the CWA permitting process

enables regulated entities to obtain an agency determi-

nation as to the legality of proposed action—and judicial

review of that determination—before the party has in-

curred any costs. Jd. at Al3-A14. The court further ex-

plained that, under Section 1319(d), any civil penalties

for violating a compliance order would be imposed by

the district court only after petitioners have had “a full

and fair opportunity to present their case in a judicial

forum” and the court had considered several statutory

factors in determining the appropriate amount of penal-

ties. 7d. at Al4-A15.

DISCUSSION

Petitioners contend (Pet. 8-18) that the CWA’s pre-

clusion of pre-enforcement judicial review of administra-

tive compliance orders violates their rights under the

Due Process Clause. The court of appeals correctly re-

jected that argument, and its decision does not conflict

with any decision of this Court or any other court of ap-

peals. Further review is not warranted.

1. Petitioners contend that “the practical effect” of

limiting pre-enforcement judicial review of an adminis-

trative compliance order is to foreclose judicial review

entirely, because recipients of such orders are faced

with an unconstitutional choice between risking coercive

penalties by violating the order, and applying for a per-

mit at their own expense. Pet. 9; see Pet. 8-15. That

argument lacks merit.

a. As petitioners acknowledge (Pet. 8-9), the courts

of appeals that have addressed the issue have uniformly

concluded that the CWA provisions governing judicial

review of compliance orders do not violate the Due Pro-

cess Clause. See Pet. App. A6-A7 (citing cases); Laguna

Gatuna, Inc. v. Browner, 58 F.3d 564, 565-566 (10th Cir.

1995) (holding that Due Process Clause is not violated

when a plaintiff must wait to challenge the basis for a

compliance order until EPA pursues an enforcement

action), cert. denied, 516 U.S. 1071 (1996); Southern

Pines Assocs. v. United States, 912 F.2d 713, 717 (4th

Cir. 1990) (holding that administrative order under the

CWA did not raise due process concerns because the

recipient was not subject to injunction or penalties until

EPA pursued an enforcement action, and the recipient

could raise all challenges to the order in that context);

ef. Hoffman Group, Inc. v. EPA, 902 F.2d 567, 569-570

(7th Cir. 1990) (stating that the statutory scheme as-

sures plaintiff a full opportunity to present its argu-

ments, including constitutional objections, before any

sanction is imposed). Absent any conflict among the

courts of appeals, further review is not warranted.

b. The court of appeals’ analysis of the constitutional

issue is correct, and it represents a straightforward ap-

plication of Thunder Basin Coal Co. v. Reich, 510 U.S.

200 (1994) (Thunder Basin). The Court in Thunder Ba-

sin held that “statutory preclusion of pre-enforcement

judicial review of administrative orders violates due pro-

cess only when the ‘practical effect of coercive penalties

for noncompliance [is] to foreclose all access to the

courts.’” Pet. App. Al3 (quoting Thunder Basin, 510

U.S. at 218). The court of appeals correctly concluded

that “the potential consequences from violating CWA

compliance orders are [not] so onerous” as to create a

“constitutionally intolerable” choice between complying

with the order and risking “coercive penalties.” /d. at

A-13 (citing Thunder Basin, 510 U.S. at 218). That is so

for two reasons.

First, the CWA provides that no penalties may be

imposed prior to judicial review of both the legality of

the compliance order and the appropriateness of penal-

ties. Although a compliance order exposes a party to

civil penalties of up to $37,500 per day for violations,

33 U.S.C. 1319(d), 40 C.F.R. 19.4, the order is not self-

executing. In order to seek civil penalties or to compel

a party to comply with the CWA, EPA must file suit un-

der Section 1319(b) and establish to the court’s satisfac-

tion that the defendant violated the statute. See

Hoffman Group, 902 F.2d at 569 (The CWA “assures [a

party] of a full opportunity to present its arguments

before any sanctions can be imposed.”); 33 U.S.C.

1319(a)(3) and (b); Pet. App. A10-A13. Under Section

1319(b), a civil action is authorized only to redress an

underlying CWA violation for which EPA “is authorized

to issue a compliance order,” not for a violation of the

compliance order itself. 33 U.S.C. 1319(b). As discussed

below, the recipient of a compliance order therefore has

a full opportunity to argue in the enforcement action

that the order is invalid because the conduct on which it

was premised did not violate the CWA. See pp. 13-15,

infra; see also, e.g., United States v. Brace, 41 F.3d 117,

124-129 (3d Cir. 1994) (considering compliance-order

recipient’s challenges to the agency’s authority to regu-

late in the context of an enforcement action), cert. de-

nied, 515 U.S. 1158 (1995).

Even if the court in a Section 1319(b) action finds

that a CWA violation has occurred, moreover, the impo-

sition of penalties is “committed to judicial, not agency

discretion.” Pet. App. Al4. In imposing penalties for

failing to comply with a compliance order, the court

must consider several statutory factors, including the

seriousness of the statutory violation, any good-faith

efforts to comply with the applicable requirements,

the economic impact of the penalty on the violator,

and any other relevant equitable considerations.

33 U.S.C. 1319(d); see, e.g., United States v. Scruggs,

No. G-06-776, 2009 WL 500608, at *3-*6 (S.D. Tex. Feb.

26, 2009) (concluding that “a severe penalty is not appro-

priate” based on analysis of the defendant’s ability to

pay, the lack of economic benefit from the violation, and

the relatively low severity of the violation). These provi-

sions ensure that a party who violates an administrative

compliance order will not be subject to penalties prior to

the completion of judicial review. See Thunder Basin,

510 U.S. at 218 (stating that although statutory civil

penalties “may become onerous if petitioner chooses not

to comply,” there is no “constitutionally intolerable”

choice because civil penalties “become final and payable

only after full review” by a federal court).

Second, the CWA permits parties to obtain judicial

review without exposing themselves to potential penal-

ties by applying for a permit and then seeking review of

the permitting decision under the APA. See 33 U.S.C.

1344(a); 5 U.S.C. 704; 33 C.F.R. 331.10; Pet. App. A13-

Al4. Petitioners could have sought a permit or, after

receiving the compliance order, engaged in the informal

discussions that EPA’s compliance orders invite, Pet.

App. G5-G6, which might have obviated the need for

judicial review. Although petitioners suggest (Pet. 12-

13) that the permitting process is burdensome and may

not result in the grant of a permit, they have not estab-

lished that the procedure is so onerous as to foreclose

resort to it. Cf. West Va. Highlands Conservancy, Inc.

v. Huffman, 625 F.3d 159, 169-170 (4th Cir. 2010) (not-

ing that Congress considered the costs of a permitting

system before deciding that “a permitting scheme is the

crucial instrument for protecting natural resources”).

2. Petitioners further contend (Pet. 15-17) that, ina

suit filed by EPA under Section 1319(b), the CWA pre-

cludes the defendant from asserting a “jurisdictional

defense”—i.e., an argument that the conduct at which

the compliance order is directed is beyond the scope of

EPA’s regulatory authority. Every court of appeals to

address the issue has held that the underlying merits of

CWA compliance orders, including the question whether

the defendant’s conduct was regulated by the CWA, are

subject to judicial review in enforcement proceedings.

See, e.g., Southern Ohio Coal Co. v. Office of Surface

Mining, Reclamation & Enforcement, 20 F.3d 1418,

1426-1427 (6th Cir.) (“Congress provided one forum in

which to address all issues, including constitutional chal-

lenges, raised by the issuance of a compliance order: an

enforcement proceeding”; recipients may bring a “juris-

dictional challenge to the agency’s issuance of an order”

in the context of an enforcement action.), cert. denied,

513 U.S. 927 (1994); Hoffman, 902 F.2d at 569-570

(same); Southern Pines Assocs., 912 F.2d at 717 (“|A

party] can contest the existence of EPA’s jurisdiction if

and when EPA seeks to enforce the penalties provided

by the Act.”). Petitioners argue (Pet. 15-17), however,

that the court of appeals’ decision, which holds that chal-

lenges to EPA’s regulatory authority may be asserted in

a Section 1319(b) suit, conflicts with the Eleventh Cir-

cuit’s decision in Tennessee Valley Auth. v. Whitman,

336 F.3d 1236 (2003) (TVA), cert. denied, 541 U.S. 1030

(2004). Petitioners are incorrect.

a. In TVA, the Eleventh Circuit considered the pro-

visions of the Clean Air Act (CAA) that govern judicial

enforcement of EPA compliance orders. In the Elev-

enth Circuit’s view, the “only issue” in a proceeding

brought to enforce a CAA compliance order is whether

the defendant violated the order itself. 336 F.3d at 1243.

The court construed the statute to authorize the imposi-

tion of civil penalties based solely on the recipient’s vio-

lation of a compliance order, regardless of whether the

EPA was authorized to issue the order or whether the

recipient had actually violated the CAA. /bid.; see id. at

1241-1242. The court also observed that EPA’s initial

decision to issue a compliance order could be based on

“any information available,” 42 U.S.C. 7413(a)(1), which

the Eleventh Circuit interpreted as establishing an evi-

dentiary standard “less rigorous” than probable cause.

TVA, 336 F.3d at 1241. Having so construed the CAA,

the Eleventh Circuit held that the relevant provisions

violated the regulated parties’ due process rights. Jd. at

1243, 1258-1260.

The decision below does not squarely conflict with

TVA because TVA involved the CAA rather than

the CWA. Although the court below observed that the

compliance-order provisions of the two statutes have

some common features, Pet. App. A10-Al11, the court

relied on statutory language unique to the CWA in de-

clining to apply TVA’s holding to this case. Specifically,

the court emphasized that under Section 1319(b), EPA

may “commence a civil action for appropriate relief

* * * for any violation for which [the EPA] is autho-

rized to issue a compliance order.” Id. at Al2 (quoting

33 U.S.C. 1319(b)). That language, the court held, dem-

onstrates that “the EPA must bring an action alleging a

violation of the CWA itself,” and that “a court cannot

assess penalties for violations of a compliance order un-

der [Section] 1319(d) unless the EPA also proves * * *

that the defendants actually violated the CWA.” Jhid.

There is consequently no circuit conflict warranting this

Court's review.”

b. As the court of appeals correctly held, the defen-

dant in an action to enforce a compliance order under

the CWA may challenge the merits of the compliance

order. The CWA authorizes EPA “to commence a civil

action for appropriate relief, including a permanent or

temporary injunction, for any violation for which [EPA]

is authorized to issue a compliance order.” 33 U.S.C.

1319(b). Because EPA is authorized to issue a compli-

ance order only if it finds that the recipient has violated

the CWA or a permit under the CWA, 33 U.S.C.

1319(a)(3), Section 1319(b) establishes that in order “to

enforce a compliance order, the EPA must bring an ac-

tion alleging a violation of the CWA itself.” Pet. App.

Al2. The CWA does “not authorize the EPA to bring

enforcement actions for mere violations of compliance

orders.” Jbid. If the court in a Section 1319(b) suit de-

termines that the recipient of the order has not violated

the CWA, or that EPA otherwise lacked authority to

issue the order, then it may not impose civil penalties.

See Hoffman Group, 902 F.2d at 569-570.

* The government disagrees with the Eleventh Circuit's holding with

respect to the scope of judicial review that is available under the CAA.

in TVA, the Solicitor General filed a petition for a writ of certiorari on

behalf of EPA, arguing that the court in a suit to enforce a CAA com-

pliance order may inquire into the validity of the order. See 03-1162

Pet. 12-15. This Court denied the petition. 541 U.S. 1030 (2004). The

instant case, however, would not be a suitable vehicle for determining

the appropriate scope of judicial review under the CAA, in light of the

differences between the relevant provisions of that statute and the

CWA. And while the Eleventh Circuit in TVA observed that the CWA

“uses many provisions that are identical to those found in the [CAA],”

336 F.3d at 1255 n.32, the court had no occasion to discuss the language

in 33 U.S.C. 1319(b) on which the court below relied.

Petitioners argue (Pet. 16) that because the CWA

permits EPA to issue a compliance order on the basis of

“any information available,” 33 U.S.C. 1319(a)(3), such

an order may result in penalties regardless of whether

the recipients have violated the CWA. Petitioners are

incorrect. EPA’s authority to issue a compliance order

based on “any information available” simply means that

the agency need not apply judicial rules of evidence or

follow formal hearing procedures in determining wheth-

er there has been a violation of the CWA that warrants

issuance of an order.’ Section 1319(a)(3) does not alter

the evidentiary standards that apply when EPA seeks to

establish in a judicial enforcement action that the party

subject to the order violated the CWA. If the district

court concludes that a compliance order is not premised

on an underlying violation of the CWA, the statute con-

templates that the district court will not enforce the or-

der.

To the extent the CWA is ambiguous on this point,

the principle that statutes should be construed if possi-

ble to avoid substantial constitutional questions is a suf-

ficient ground for rejecting petitioners’ interpretation.

See Edward J. DeBartolo Corp. v. Florida Gulf Coast

Bldg. & Constr. Trades Council, 485 U.S. 568, 575

(1988); INS v. St. Cyr, 583 U.S. 289, 299-300 (2001). The

court of appeals therefore correctly construed the CWA

to allow the defendant in a Section 1319(b) suit to con-

test the existence of an underlying CWA violation.”

* Cf. 18 U.S.C. 3661 (“No limitation shall be placed on the informa-

tion concerning the background, character, and conduct of a person con-

victed of an offense which a court of the United States may receive and

consider for the purpose of imposing an appropriate sentence.”).

* Petitioners’ amici raise a number of contentions that are not urged

by petitioners, were not passed on below, and are not within the ques-

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NEAL KUMAR KATYAL

Acting Solicitor General

IGNACIAS. MORENO

Assistant Attorney General

AARON P. AVILA

JENNIFER SCHELLER NEUMANN

Attorneys

MAY 2011

tion presented. See National Ass’n of Home Builders & Am. Farm Bur-

eau Fed’n Amicus Br. 6-17 (arguing that pre-enforcement judicial re-

view is required under Mathews v. Eldridge, 424 U.S. 319, 335 (1976));

Center for Constitutional Jurisprudence & Nat'l Fed’n of Indep. Bus.

Small. Bus. Legal Ctr. Amicus Br. 3 (arguing that landowners are

burdened by uncertainty about what wetlands are regulated by the

CWA); American Civil Rights Union Amicus Br. 3-4, 11-12 (arguing

that the compliance order may be an unconstitutional taking of peti-

tioners’ property). Review of these arguments is not warranted. See

United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 60 n.2 (1981) (The

Court ordinarily does not review a claim interjected by an amicus curiae

where the claim “was not raised by either of the parties here or be-

low.”).

BRIEF

¥ AND

BRIEFS —

FiLEO

No. 10-1062 JUN 3 ~ 20m

In the

Supreme Court of the Gnited States

—---

CHANTELL SACKETT and MICHAEL SACKETT,

Petitioners,

Vv.

UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY

and LISA P. JACKSON, Administrator,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

—@-—

REPLY TO OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

~ +

LESLIE R. WEATHERHEAD M. REED HOPPER

Witherspoon Keliey *DAMIEN M. SCHIFF

Davenport & Toole *Counsel of Record

422 W. Riverside Ave., Pacific Legal Foundation

Suite 1100 3900 Lennane Dr., Suite 290

Spokane, WA 99201 Sacramento, CA 95834

Telephone: (509) 624-5265 Telephone: (916) 419-7111

Facsimile: (509) 458-2728 Facsimile: (916) 419-7747

E-mail: lwlibertas@aol.com E-mail: mrh@pacificlegal.org

E-mail: dms@pacificlegal.org

Counsel for Petitioners

QUESTION PRESENTED

Do Petitioners have a right to judicial review of an

Administrative Compliance Order issued without

hearing or any proof of violation under Section

309(a)(3) of the Clean Water Act?

TABLE OF CONTENTS

QUESTION PRESENTED ..............ccscee

TABLE OF AUTHORITIES .................. Lil

INTRODUCTION

ee FO 8 ON ee ite Ue ek ee Oe ee ee ee De ne i ro oe ee Se oe oe oe ae

I. THE AVAILABILITY OF JUDICIAL

REVIEW UNDER THE CLEAN

WATER ACT IS AN ISSUE OF

NATIONWIDE SIGNIFICANCE

MERITING THIS COURT'S REVIEW ......

Il. THE NINTH CIRCUIT'S

DECISION CONFLICTS WITH

THE ELEVENTH CIRCUIT'S

DECISION IN TVA v. WHITMAN .........

CONCLUSION ..

S Ci 2S 8 SO ee SB EU Se @ ie es eo 2 ote 6 eS 6 eS «& eS

11)

TABLE OF AUTHORITIES

Page

Cases

Solid Waste Agency of N. Cook County v.

U.S. Army Corps of Engrs,

ee We IN gk oe oo ais a sidan wie So wn ee a 1

Tennessee Valley Authority v. Whitman,

336 F.3d 1236 (11th Cir. 2003) ......... 1, 3, 5-6

Thunder Basin Coal Co. v. Reich,

a oe 6 ea cee ch ween wacdaew’ 3

Statutes

8 ee | Se an ee eee ae

ea ee te eins on sae ee ET 3

Regulation

ee a eee EINER 6.55 056 50644 RS CERO 4

]

INTRODUCTION

Petitioners Chantell and Michael Sackett

respectfully submit this Reply to the Opposition Brief

of Respondents United States Environmental

Protection Agency, et al. (EPA). EPA contends that

this Court's review is unnecessary because the lower

court's decision was correct, and because there is no

circuit conflict. But EPA is wrong and nowhere does it

rebut the Sacketts’ argument that review is merited in

this Court because of the nationwide importance of the

issue presented. That issue is whether a landowner

can obtain judicial review of a unilateral EPA

compliance order issued under the Clean Water Act

(CWA) only if he invites an enforcement action risking

tens, if not hundreds, of thousands of dollars in

penalties and criminal sanctions, or endures the

prohibitively expensive and potentially fruitless

permitting process. EPA’s attempts to distinguish

Tennessee Valley Authority (TVA) v. Whitman, 336

F.3d 1236 (11th Cir. 2003), are unavailing. The

Eleventh Circuit’s decision squarely conflicts with the

Ninth Circuit’s decision below. Certiorari should

therefore be granted.’

Contrary to EPA's contention, Opp'n at 5 n.2, the Sacketts do

challenge the Ninth Circuit's holding that the CWA statutorily

precludes pre-enforcement judicial review of compliance orders.

The Sacketts believe that this Court need not hold the CWA’s

compliance regime to be unconstitutional to reach the correct

result. Rather, the Court can simply hold that the CWA should

not be interpreted to preclude judicial review of compliance orders,

because such preclusion would be unconstitutional. Cf. Solid

Waste Agency of N. Cook County v. U.S. Army Corps of Eng’rs, 531

U.S. 159, 172-73 (2001) (articulating the “avoidance” canon).

)

THE AVAILABILITY OF

JUDICIAL REVIEW UNDER THE

CLEAN WATER ACT IS AN ISSUE

OF NATIONWIDE SIGNIFICANCE

MERITING THIS COURT'S REVIEW

The rule adopted by the Ninth Circuit's decision

wil have a significant nationwide impact because it

has the potential to affect land use on hundreds of

millions of acres. See Pet. at 9. Also, the rule will have

a significant effect because EPA relies regularly on the

compliance order regime to administer its

environmental agenda without having to submit to the

strictures of judicial review. See Pet. at 13-14. None

of EPA’s arguments seeking to minimize the impact of

the Ninth Circuit's decision is convincing.

EPA observes that compliance orders are not “self-

executing” because EPA must go to court before it can

enforce an order against a landowner. See Opp’n at 4.

EPA is correct that it must go to court before it

can enforce a compliance order, but the agency

nevertheless admits that compliance orders have the

force of law and that a landowner can eventually be

held liable for having violated them.* See Opp’n at 9.

Yet ultimately EPA’s characterization of compliance

orders is irrelevant to the question presented. The due

process rights of the Sacketts and other compliance

order recipients are violated regardless of how one

* EPA cites 33 U.S.C. § 1319(b) for the proposition that the

agency is not authorized to bring a civil enforcement action for

violation of a compliance order only. Whatever the merit of EPA's

statutory interpretation, the agency does not deny that a

landowner could still be liable. in one civil enforcement action, for

violations of the CWA itself and for a related compliance order.

characterizes the order. Their rights are infringed

because judicial review of the order is triggered only by

exposing oneself to ruinous fines or by submitting to

an onerous and economically senseless permitting

process.”

EPA tries to play down the significance of these

penalties and the costs of the permitting process. The

agency notes that penalties for violations of compliance

orders can only be assessed after a hearing, and that

the ultimate amount of any penalty is left to the

discretion of a judge, not the agency. See Opp'’n at 9-

10. Although EPA is correct that a fine cannot be

assessed without a judicial proceeding. EPA's

observation fails to address the relevant point

articulated in Thunder Basin Coal Co. v. Reich, 510

U.S. 200 (1994). It is no cure to the due process

violation that a fine can only be exacted after a

hearing, where the conditions for obtaining the hearing

in the first place are constitutionally intolerable. Cf.

id. at 218.

Further, the force of EPA’s point assumes that full

judicial review is ultimately available. TVA says that

the assumption is unwarranted. See 336 F.3d at 1256.

That holding forms a separate basis for review in this

Court. See Pet. at 15-17. And, although the ultimate

amount of a fine is left to judicial discretion, the “good-

faith efforts” of a Clean Water Act violator are only one

factor that a court may take into account. See 33

U.S.C. § 1319(d). That is little assurance to a

landowner who is still potentially liable for a very large

% The amicus brief of the Center for Constitutional

Jurisprudence ably explains how the CWA’s compliance order

regime impinges upon constitutionally protected private property

rights. See Am. Br. of Ctr. for Const. Jurisp. at 5-8.

fine. See Pet. at 10 (estimating a year’s worth of

noncompliance liability at $9 million).

Additionally, EPA relies on the existence of the

Clean Water Act permitting regime as an adequate

avenue for judicial review. See Opp’n at 10-11. But,

EPA’s reliance is misguided. Generally, a landowner

must first resolve a compliance order before applying

for a permit. See 33 C.F.R. § 326.3(e)(1)(ii). The

average cost of an individual Clean Water Act permit

is in the hundreds of thousands of dollars. See Pet. at

13. And the permitting option is economically

irrational for many compliance order recipients,

because the cost of a permit can significantly exceed

the value of the property or project in question.

Therefore, the Ninth Circuit's decision leaves

compliance order recipients without a constitutionally

adequate means of judicial review. The decision is an

issue of nationwide significance meriting this Court's

review.

THE NINTH CIRCUIT'S

DECISION CONFLICTS WITH

THE ELEVENTH CIRCUITS

DECISION IN TVA v. WHITMAN

The Ninth Circuit's decision squarely conflicts

with the Eleventh Circuit's decision. See Pet. at 15-17.

EPA’s attempts to explain away this plain conflict are

unpersuasive.*

* The amicus brief of the American Civil Rights Union ably

explains how the Ninth Circuit’s and the Eleventh Circuit's

decisions are irreconcilable. See Am. Br. of Am. Civil Rights

Union at 12-14.

EPA argues that 7VA does not squarely conflict

with the decision below because 7'VA dealt with the

Clean Air Act (CAA), not the Clean Water Act. The

Eleventh Circuit, however, clearly believed that its

holding with respect to the Clean Air Act would apply

with equal force to the Clean Water Act. See TVA, 336

F.3d at 1255 n.32 (noting that the CWA “uses many

provisions that are identical to those found in the

Clean Air Act” and that “the entire [CWA] subsection

is entitled ‘compliance orders.”). EPA argues further

that the Eleventh Circuit failed to grasp the

importance of language in the Clean Water Act, not

present in the Clean Air Act, that allows the two

statutory regimes to be distinguished. See Opp’n at 12-

13 & n.3 (discussing 33 U.S.C. § 1319(b)). But the

conflict exists regardless of EPA’s post hoc attempts at

reconciliation. A court within the Eleventh Circuit

would be duty-bound to follow TVA’s plain meaning,

not EPA’s gloss which limits 7'VA’s application to the

Clean Air Act. And, more importantly, even the Ninth

Circuit below realized that its decision conflicted with

TVA. See Pet. App. A-10 to A-11 (noting that TVA

“identified constitutional problems with a similar

compliance-order provision in the CAA” but

nevertheless “declin[ing] to interpret the CWA in this

manner’).

EPA contends that any due process violation can

be avoided by reading the Clean Water Act to allow a

comphance order recipient to raise a jurisdictional

objection as a complete defense in an enforcement

proceeding. See Opp’n at 14. But this does not

eliminate the constitutional problem, because the cost

to obtain judicial review under the Clean Water Act is

impermissibly high. Moreover EPA’s argument does

nothing to remedy the conflict between JVA and the

decision below. TVA specifically rejected the EPA's

argument, accepted by the Ninth Circuit, that the

compliance order regime should be read so as to allow

the raising of a jurisdictional defense. See TVA, 336

F.3d at 1255-56.

EPA also draws support for its view of the case

law (and T'VA’s place in it) from the fact that no other

court of appeals has held that the Clean Water Act

compliance order regime violates a landowner’s due

process rights. See Opp'n at 7-8. EPA's observation is

unhelpful because the cases besides TVA have all

assumed that a compliance order recipient could

ultimately obtain full judicial review (even if the cost

of that review were very high).° But, as noted in the

preceding paragraph, TVA rejected jurisdiction as a

defense to a compliance order.

The decision below conflicts with that of the

Eleventh Circuit in TVA. Therefore, review in this

Court is merited to resolve that conflict.

Further, none of the relevant appellate decisions gives serious

consideration to the central concern of this Court's decision in

Thunder Basin: whether the ostensible avenues to judicial review

are too onerous to be considered constitutionally adequate. The

amicus brief of National Association of Home Builders, et al., ably

explains how the lower court misapplied the rule of Thunder Basin

to the Sacketts’ case. See Am. Br. of Nat'l Ass'n of Home Builders

at 15-17.

CONCLUSION

To address both a conflict between Circuits and an

important federal question, the petition for writ of

certiorari should be granted.

DATED: June, 2011.

Respectfully submitted,

LESLIE R. WEATHERHEAD M. REED HOPPER

Witherspoon Kelley *DAMIEN M. SCHIFF

Davenport & Toole *Counsel of Record

422 W. Riverside Ave., Pacific Legal Foundation

Suite 1100 3900 Lennane Dr., Suite 200

Spokane, WA 99201 Sacramento, CA 95834

Telephone: (509) 624-5265 Telephone: (916) 419-7111

Facsimile: (509) 458-2728 Facsimile: (916) 419-7747

E-mail: !whbertas@aol.com E-mail: mrh@pacificlegal.org

E-mail: dms@pacificlegal.org

Counsel for Petitioners

Aid

BRIEDS

IN THE

Supreme Court of the United States

CHANTELL SACKETT and MICHAEL SACKETT,

Petitioners,

Vv.

UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY

and LISA P. JACKSON, Administrator.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE AMERICAN CIVIL

RIGHTS UNION AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

PETER J. FERRARA

Counsel of Record

AMERICAN CIVIL RIGHTS UNION

310 Cattell Street

Easton, PA 18042

610-438-5721

peterferrara@msn.com

Counsel for Amicus Curiae

American Civil Rights Union

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002

—_—_-__—_——

RECORD MAR 28 201!

CORPORATE DISCLOSURE STATEMENT

The ACRU is a non-profit, non-stock corporation.

Consequently, the ACRU as no parent corporations

and no publicly held company owns more than 10% of

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TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT .....

TABLE OF AUTHORITIES .......................0.0000-

INTEREST OF THE AMICUS CURIAE ............

SUMMARY OF ARGUMENT ......................

STATEMENT OF THE CASE .....................eeee

REASONS FOR GRANTING THE WRIT..........

I. CERTIORARI SHOULD BE GRANTED

BECAUSE THIS CASE PRESENTS

IMPORTANT QUESTIONS OF LAW

WITH SUBSTANTIAL NATIONAL

Il. CERTIORARI SHOULD BE GRANTED

BECAUSE THERE IS A CONFLICT

AMONG THE CIRCUIT COURTS

THAT SHOULD BE RESOLVED ............

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Page

TABLE OF AUTHORITIES

CASES Page

Board of Regents v. Roth,

Be He Ai cadidacccdceincdtimnckrsssncecs 7

Davidson v. New Orleans,

ne I ine ce ccinassaaonalduswenea 7

Ex Parte Young,

208 U.S. 123, 148 (1908)........................... 10

Fuentes v. Shevin,

er ee iceescrievccvcndadeucvannciunenvenden 7

Goldberg v. Kelly,

Be es Se GIs Scvinccundoriesscandadssconenses 7

Mathews v. Eldridge,

ae He NG iiiincterccscdesdinsoasciecvanes 7

MedImmune, Inc. v. Genentech, Inc.,

ee Fe I iiciinssnectiernnvsecvcdcesucinies 10

Ochoa v. Hernandez y Morales,

Se ds I CR iiciastrcecnensncevneicescusocevse 7

Rapanos v. United States,

Se ie ee I isnsiceceosensavenssacecuemessoos 9

Tennessee Valley Authority v. Whitman,

363 F. 3d 1236 (11th Cir. 2003)....... 6, 10, 12, 13

Thunder Basin Coal Co. v. Raich,

ee SP Be Ce ivirsitveccenasadstwsssnancesvesuvess 9,10

Wilkinson v. Leland,

By Ie I shes or vidcnsnsniveecsistusecssienssnenn 7

STATUTES

Clean Water Act, Section 1319(c\1)-(2) ...... i)

TABLE OF AUTHORITIES—Continued

Page

REGULATIONS

33 C.F.R. Sect. 326.3(e)( Iii)... eeceececee. 8

OTHER AUTHORITIES

Andrew I. Davis, Judicial Review of

Environmental Compliance Orders, 24

Envtl. L. 189, 223 (1994) .......................... 10

Richard A. Epstein, Takings: Private

Property and the Power of Eminent

Domain (Cambridge, MA: 1985) .............. 12

Christopher M. Wynn, Note, Facing a

Hobson’s Choice? The Constitutionality

of the EPA’s Administrative Compliance

Order Enforcement Scheme Under the

Clean Air Act, 62 Wash. & Lee L. Rev.

BF, Be GD iosescniscenenccescesesescevesnssewoee 11

IN THE

Supreme Court of the Anited States

No. 10-1062

CHANTELL SACKETT and MICHAEL SACKETT,

Petitioners,

Vv.

UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY

and LISA P. JACKSON, Administrator.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE AMERICAN CIVIL

RIGHTS UNION AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICUS CURIAE'

The American Civil Rights Union is a non-partisan,

non-profit, 501(c)(3), legal/educational policy organi-

zation dedicated to defending all of our constitutional

rights, not just those that might be politically correct

' Peter J. Ferrara authored this brief for the American Civil

Rights Union (ACRU). No counsel for either party authored the

brief in whole or in part and no one apart from the ACRU made

a monetary contribution to the preparation or submission of this

brief. All parties were timely notified and have consented to the

filing of this brief.

or fit a particular ideology. It was founded in 1998

by long time policy advisor to President Reagan, and

the architect of modern welfare reform, Robert B.

Carleson. Carleson served as President Reagan’s

chief domestic policy advisor on federalism, and

originated the concept of ending the federal entitle-

ment to welfare by giving the responsibility for those

programs to the states through finite block grants.

Since its founding, the ACRU has filed amicus curiae

briefs on constitutional law issues in cases

nationwide.

Those setting the organization’s policy as members

of the Policy Board are former U.S. Attorney General,

Edwin Meese III; former Assistant Attorney General

for Civil Rights, William Bradford Reynolds; former

Assistant Attorney General for the Office of Legal

Counsel, Charles J. Cooper; John M. Olin Distin-

guished Professor of Economics at George Mason

University, Walter E. Williams; former Harvard

University Professor, Dr. James Q. Wilson; former

Ambassador Curtin Winsor, Jr.; former Assistant

Attorney General for Justice Programs, Richard

Bender Abell and former Ohio Secretary of State J.

Kenneth Blackwell.

This case is of interest to the ACRU because we

want to ensure that all constitutional rights are fully

protected, not just those that may advance a partic-

ular ideology. That includes the rights to property

and to Due Process of Law protected by the Fifth

Amendment.

SUMMARY OF ARGUMENT

Petitioners Chantell and Michael Sackett pur-

chased a residential lot in a residential neighborhood,

zoned and permitted by local authorities for

construction of their home. After they began earth-

work prepatory to such construction, they received a

Compliance Order from the EPA effectively ruling

that moving around dry earth and fill materials on

their residential lot to begin their homebuilding

project somehow involved discharge of a pollutant

into the navigable waters of the United States in

violation of the Clean Water Act. The Compliance

Order commanded the Sacketts to cease construction

of their home, bear the costs of restoring the property

to its previous condition, undoing all of their con-

struction activity, and leave the property untouched

for a period of years, with no clear opportunity ever

to commence building.

The Sacketts were denied any hearing to contest

the Compliance Order by the EPA and by the courts

below. The Ninth Circuit held that to get a hearing

the Sacketts had the choice of bearing the intractable

costs of applying for a permit to discharge pollution

into the navigable waters of the United States by

building their home on a residential lot, as if they

were a major industrial enterprise actually engaged

in real pollution, and then seek judicial review of any

such denial, with no prospect of getting back the

intractable costs of any such application. Or they

could ignore the Compliance Order, running the risk

of bankrupting fines and even criminal liabilities,

and then raise their contesting claims in an enforce-

ment action.

This Hobson’s choice violates the constitutional

requirements of Due Process of Law, which unques-

tionably protect Petitioners’ property interest in

building their own home. It involves a regulatory

taking as well in violation of the Takings Clause, as

the Sacketts are indefinitely denied the use of their

property for the residential purpose for which they

purchased it, and any other meaningful use, effec-

tively leaving them required to maintain it as a

public park indefinitely. The Sacketts represent one

example of potentially thousands of similar constitu-

tional violations across the country. This case conse-

quently presents important questions of law with

national impact which we submit should be resolved

by this Court.

Moreover, the ruling of the Ninth Circuit below is

in direct conflict with an analogous ruling of the

Eleventh Circuit. Consequently, we submit the

requested Writ of Certiorari should be granted to

resolve this conflict.

STATEMENT OF THE CASE

Petitioners Chantell and Michael Sackett pur-

chased a half-acre lot in a built-out area of residential

development near Priest Lake, Idaho for the purpose

of building their home on the property. Pet. App. A-

2, E-2. Local authorities have zoned their lot for

residential construction, and provided an existing

sewer hookup. Pet. App. E-2.

Obtaining ail required building permits from the

local authorities, the Sacketts employed contractors

who began earthmoving work to prepare the site for

home construction. Without any reason to think that

such home construction activities on the dry land of

their residential property in a residentially developed

neighborhood involved the Clean Water Act (CWA) or

the Environmental Protection Agency (EPA), Pet.

App. E-2, the Sacketts nevertheless received a

Compliance Order from the EPA effectively ruling ex

parte that their home building activities had violated

the CWA by illegally dumping fill materials into

jurisdictional wetlands supposedly on their land.

Pet. App. G. Somehow, the EPA found that the

Sacketts moving earth around on their residential lot

in a residential neighborhood involved “the discharge

of a pollutant” into the “navigable waters” of the

United States.

The Compliance Order required the Sacketts to

immediately cease construction of their home, despite

building authorization from the local authorities.

Indeed, the Compliance Order required them instead

to finance costly restoration work, removing all fill

material and replanting, followed by a three-year

monitoring period during which the Sacketts had to

leave their residential land entirely untouched. Pet.

App. G-4 — G-6, H-3. In addition, the Compliance

Order imposed costly civil penalties on the Sacketts if

they failed to comply with the Order’s dictates. Pet.

App. G-7.

The Sacketts next found that there was nowhere

they could challenge the EPA’s Compliance Order, at

least without incurring costs and delays suited to a

major industrial enterprise rather than to a retiring

couple trying to build a modest home, or inviting

bankrupting fines and even criminal penalties. The

Sacketts first sought a hearing before the EPA. But

the EPA ignored them. Pet. App. 3. The Sacketts

then filed suit in federal court. But the District

Court granted the EPA’s motion to dismiss the suit.

Pet. App. at C-7.

The Sacketts appealed the dismissal to the Ninth

Circuit. Despite the general presumption of judicial

review of administrative actions, the court held

that the CWA precludes judicial review of pre-

enforcement actions such as Compliance Orders. Pet.

App. 6.

The Sacketts argued that this would mean that the

CWA authorizes liability for violations of Compliance

Orders, even where the CWA has not been violated.

The Eleventh Circuit held in Tennessee Valley

Authority v. Whitman, 363 F. 3d 1236 (lith Cir.

2003) in regard to an analogous section of the Clean

Air Act (CAA) that such Compliance Orders would be

unconstitutional if not subject to judicial review. But

the Ninth Circuit read into the statute the right to

challenge the validity of a Compliance Order if and

when the EPA chooses to enforce it, and held that

this satisfies constitutional requirements.

The court’s ruling leaves the Sacketts then with

only this choice. They can seek a permit from the

EPA to discharge pollution into the navigable waters

of the United States by building their home on a resi-

dential lot in a residential neighborhood, as a major

industrial enterprise would have to do for real pollu-

tion, practically costing more than their property is

worth and years of delay in the construction of their

own home. Or they can ignore and violate the Com-

pliance Order, incurring overwhelming civil penalties

and even quite possibly criminal liability, hoping that

a court would use its equitable discretion to set that

aside.

The Sacketts request a Writ of Certiorari for this

Court to review the Ninth Circuit’s ruling as uncons-

titutional.

REASONS FOR GRANTING THE WRIT

I. CERTIORARI SHOULD BE GRANTED

BECAUSE THIS CASE PRESENTS

IMPORTANT QUESTIONS OF LAW WITH

SUBSTANTIAL NATIONAL IMPACT.

This case is about the EPA effectively taking the

planned home of Petitioners Chantell and Michael

Sackett in a manner reminiscent more of an authori-

tarian government than a liberal society governed by

Due Process and property rights. The Sacketts are

not the DuPont Chemical Company able to finance

the application for a discharge permit, merely

to build their own home on a residential lot in a

residential neighborhood. Moreover, such home

construction manifestly does not involve discharge of

pollution into the navigable waters of the United

States, and the Constitution requires that the Sack-

etts be allowed their day in court to raise that

defense without incurring bankrupting EPA civil

penalties, and quite possibly criminal liability, which

they can only hope a court will equitably set aside.

That Hobson’s choice violates the Fifth Amend-

ment’s Due Process of Law. The property rights of

homeowners are unquestionably protected by Due

Process. Board of Regents v. Roth, 408 U.S. 564

(1972); Ochoa v. Hernandez y Morales, 230 U.S. 139

(1913); Davidson v. New Orleans, 96 U.S. 97 (1877);

Wilkinson v. Leland, 27 U.S. 627 (1829). Due process

requires a meaningful opportunity to be heard before

deprivation of a property interest. Mathews v.

Eldridge, 424 U.S. 319 (1976); Fuentes v. Shevin, 407

U.S. 67 (1972); Goldberg v. Kelly, 397 U.S. 254

(1970). As this Court said in Fuentes,

“The constitutional right to be heard is a basic

aspect of the duty of government to follow a fair

process of decisionmaking when it acts to deprive

a person of possessions. ... [T]he prohibition

against the deprivation of property without due

process of law reflects the high value, embedded

in our constitutional and political history, that

we place on a person’s right to enjoy what is his,

free of governmental interference.”

407 U.S. at 80-81.

The Sacketts have been undeniably denied a prop-

erty interest. They purchased a residential lot in a

residential neighborhood for the purpose of building a

home. Now they have been denied the right to build

a home on their property, and forced instead to main-

tain it effectively as a public park, at a minimum for

years. But as the EPA has already held that taking

steps to prepare for the building of a home on the

Sacketts’ land somehow involves discharging pollu-

tion into the navigable waters of the United States,

there is no reason to believe that absent judicial

intervention the Sacketts will ever be free to build

their home.

At present, the Sacketts have no feasible recourse

to get their defenses to an apparently confused EPA

ruling even before a court to be heard. Under present

EPA regulations, the Sacketts cannot even apply for

a permit as the Ninth Circuit suggested. Once a

Compliance Order has been issued, EPA regulations

provide that “No permit application will be accepted”

until the Compliance Order has been resolved. 33

C.F.R. Sect. 326.3(e)(1XMii). Moreover, even if a

permit application would be allowed, that is not

remotely a practical, feasible option for the Sacketts.

The average application for an individual permit

costs $271,596 and takes 788 days, or more than 2

years. Rapanos v. United States, 547 U.S. 715, 721

(2006) (plurality opinion).

In addition, there is no guarantee that after all of

those costs and all of that delay, the permit to build

their home would be granted, or granted with feasible

conditions. If the Sacketts then have to sue after a

permit denial to finally get their objections heard by

a court, and the court ruled that the Sacketts were

right after all, they would have no recourse to get any

of those unbearable permit application costs back. As

Justice Scalia recognized in Thunder Basin Coal Co.

v. Raich, 510 U.S. 200, 220-21 (1994)(concurring in

part and concurring in the judgment), “(Clomplying

with a regulation later held to be invalid almost

always produces the irreparable harm of nonrecover-

able compliance costs.”

Alternatively, the Sacketts can ignore the EPA’s

Compliance Order and seek to raise their defenses

when the EPA moves to enforce it. That course

entails incurring EPA fines of as much as $750,000

per month, $9,000,000 for a year, for failure to obey

the Compliance Order. Moreover, under the federal

CWA statute, the Sacketts would have to run the risk

of criminal liability as well, as Section 1319(c)(1)-(2)

imposes criminal penalties for knowing violations of

the Act. Yet, there is no guarantee that in such an

enforcement action a right to raise defenses to the

Compliance Order would be read into the CWA, as

the Ninth Circuit did in this case, especially when

the plain language of the statute unambiguously

precludes it. Much less is there any assurance that a

later court in such an enforcement action would

disallow any fine on equitable grounds.

These reasons are exactly why the Eleventh Circuit

in TVA v. Whitman found such a Hobson’s choice

imposed by an EPA Com

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