Due Process and Wetland Designations – Supreme Court Sides with Property Owners

Posted on: May 25, 2012

Supreme Court Allows for Judicial Review of Clean Water Act Wetlands Designations

In March of this year, the Supreme Court reversed a lower court decision holding that a property owner could only challenge an EPA Compliance Order if and when the EPA brought an enforcement action seeking to impose civil and criminal penalties.

Mike and Chantell Sackett bought a 2/3 acre property in Bonner County, Idaho, just north of Priest Lake. It was separated from the lake by several lots containing buildings, but the property still fell within the definition of “wetlands” for the purposes of the Clean Water Act. A few months after the Sacketts began to fill part of their lot with dirt and rock in anticipation of building a home, they received a compliance order from the EPA, which asserted that the property was subject to the Clean Water Act and that filling the lot was engaging in the “discharge of pollutants” without a permit and were in violation of the Act.

The Sacketts disputed that their property was subject to the Act and requested a hearing. After the EPA denied  them a hearing, they brought an action in District Court seeking declaratory and injunctive relief under the theory that the EPA’s issuance of the compliance order was “arbitrary and capricious” under that Adminstrative Procedure Act (APA) and that it deprived them of Due Process. The District Court dismissed the claim claiming that it did not have jurisdiction to hear the claim, and that decision was affirmed on appeal.

In a unanimous decision authored by Justice Scalia, the Supreme Court reversed the ruling, holding that the Sacketts could bring an action under the APA to challenge the issuance of a compliance order. Under the APA, any “final agency action for which there is no other adequate remedy in a court” is subject to judicial review. In determining whether the compliance order was “final,” the court reasoned that as the EPA “determined” the Sacketts’ “rights or obligations” in the order and that the order was not subject to any further agency review, it was final. As to whether there was another “adequate remedy in a court,” Scalia’s opinion states that normally, in Clean Water Act enforcement cases, judicial review ordinarily comes by the way of a civil action brought by the EPA. In the case of the Sacketts, they were unable to initiate that process as the lower courts were denying they had jurisdiction to hear the case. The EPA contended that the Clean Water Act was not subject to the APA, but the Court rejected that argument on several grounds. A link to the full opinion is here. On May 3, the Appeals Court for the Ninth Circuit remanded the case back to district court for a decision consistent with the Supreme Court’s decision.

Do not let the government take or limit your enjoyment of your property without putting up a fight. You right to property (or just compensation for that property) is constitutionally guaranteed. If you are having a real estate or property issue call one of our real estate attorneys today.

Schecter Law is a full service real estate and transactional law firm that has been providing representation and practical legal solutions for property acquisition, sales, investment and development to the greater South Florida community since 1976.  It is our practice to give each client our undivided attention and to dedicate ourselves to our clients’ unique needs.