The Sackett Two-Step

On October 3, 2022, Mr. and Mrs. Sackett and their legal team will be making oral arguments to the Supreme Court of the US (SCOTUS) about the extent of federal jurisdiction on their land.  This is the second time in 10 years that the Sacketts have been before the Supreme Court over a wetlands issue on the same piece of property in Idaho.  It is extremely rare for the same individuals to go before the Supreme Court and even rarer for it to be the same piece of land that is being discussed.

At issue is that the US EPA and the US Army Corps of Engineers have identified federally protected wetlands on the Sackett’s property.  The Sackett’s initial SCOTUS case was all about due process and the Administrative Procedures Act (APA).  The EPA/Corps required that the Sacketts restore, mitigate, and pay a fine with the benefit without the benefit of a defense.  The SCOTUS unanimously sided with the Sacketts.  However, the issue of wetland impact was never decided.

The current issues are that the EPA/Corps have determined that federal wetlands are present and impacted on the Sackett property.  The Sackett response is that the wetlands on the property are not federally jurisdictional.  The SCOTUS has agreed to hear the case which opens the issue of what types of wetlands federally jurisdictional.

The EPA/Corps arguments follow the Rapanos significant nexus test.  They envision that the site is jurisdictional as described in the April 11, 2022, Brief of petitioners Michael Sackett, et al. filed.

Priest Lake is a navigable water → A non-navigable creek connects to Priest Lake → The non-navigable creek is connected to a non-navigable, man-made ditch → The non-navigable, man-made ditch is connected to wetlands → These wetlands, though separated from the Sacketts’ lot by a thirty-foot-wide paved road, are nevertheless “similarly situated” to wetlands alleged to exist on the Sacketts’ lot → These alleged wetlands on the Sacketts’ property, aggregated with the wetlands across the street, bear a “significant nexus” to Priest Lake.

The Sacketts have proposed a two-step test for determining whether a wetland is among “the waters of the United States” subject to regulation under the Clean Water Act.  The first step questions whether a wetland may be considered a “water.” This step has two prongs. The first prong requires a finding that the wetland has a continuous surface-water connection with a “water,” such that the resulting physical nexus makes the wetland and “water” “inseparably bound up,” to the extent that it is difficult to say where the wetland ends and the “water” The second prong requires a finding that the “water” to which the wetland is thus connected is a hydrogeographic feature ordinarily referred to as a “water,” such as a stream, ocean, river, or lake.

(April 11, 2022, Brief of petitioners Michael Sackett, et al. filed.)

The two prongs of the first step are compelled by the statute’s text, which regulates “waters,” not land (wet or otherwise) or other features (such as sewer systems or some manmade ditches) that are not commonly denominated as “waters.” Although the Court in Riverside Bayview upheld the regulation of wetlands immediately adjacent to a navigable-in-fact river as “waters,” it did so only because of the inherent ambiguity in defining the border between true waters and wetlands immediately adjacent to and abutting those waters. Hence, where such a physical nexus is absent—that is, where there is no line drawing problem—wetlands and other non-waters that are merely nearby true “waters” cannot themselves be deemed to be “waters.”

(April 11, 2022, Brief of petitioners Michael Sackett, et al. filed.)

The Sackett’s second step requires a finding that the “water” is “of the United States”—in other words, that it is subject to Congress’s authority over the channels of interstate commerce. This step follows from the Court’s conclusion in SWANCC that the Act is an exercise of Congress’s commerce power over navigation. Such power traditionally encompassed various types of interstate waters, as well as some activities outside those waters that nevertheless harmed them. But given its dissatisfaction with the regulatory status quo that was limited to such waters, Congress had by 1972 determined to go beyond prior statutes and to exercise the full extent of its channels of commerce power. The result is a Clean Water Act that regulates not just traditional navigable waters, but also intrastate waters that serve as a link in a channel of interstate commerce.

(April 11, 2022, Brief of petitioners Michael Sackett, et al. filed.)

Based upon this two-step analysis the Sackett argument is that lot contains no “waters of the United States.” Therefore, the Sacketts are entitled to a declaration that EPA lacks jurisdiction over their property. 

This should be closely watched.  The Biden Administration has put a stay on the release of the final Waters of the US rules it recently published.  At issue is that the Biden rules rely heavily on the 9^th Circuit significant nexus test.  If SCOTUS overturns the significant nexus test, then the Biden rule would become moot.  So, there is a lot riding on this case. 

Oral arguments are in October.  Perhaps we will get a decision by next June.  Stay tuned!