Sackett v. United States Environmental Protection Agency, No. 19-35469 (9th Cir. 2021)
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The Sacketts purchased a soggy residential lot near Idaho’s Priest Lake in 2004, planning to build a home. Shortly after the Sacketts began placing sand and gravel fill on the lot, they received an Environmental Protection Agency (EPA) administrative compliance order, indicating that the property contained wetlands subject to protection under the Clean Water Act (CWA), 33 U.S.C. 1251(a), and that the Sacketts had to remove the fill and restore the property to its natural state.
The Sacketts sued EPA in 2008, challenging the agency’s jurisdiction over their property. During this appeal, EPA withdrew its compliance order. The Ninth Circuit affirmed summary judgment in EPA’s favor. EPA’s withdrawal of the order did not moot the case. EPA’s stated intention not to enforce the order or issue a similar order in the future did not bind the agency. EPA could potentially change positions under new leadership. The court upheld the district court’s refusal to strike from the record a 2008 Memo by an EPA wetlands ecologist, containing observations and photographs from his visit to the property. The court applied the “significant nexus” analysis for determining when wetlands are regulated under the CWA. The record plainly supported EPA’s conclusion that the wetlands on the property were adjacent to a jurisdictional tributary and that, together with a similarly situated wetlands complex, they had a significant nexus to Priest Lake, a traditional navigable water, such that the property was regulable under the CWA.
Court Description: Mootness / Environmental Law. The panel affirmed the district court’s summary judgment in favor of the Environmental Protection Agency (“EPA”) in an action brought by plaintiff landowners, challenging an EPA compliance order that stated that plaintiffs’ property contained wetlands subject to protection under the Clean Water Act (“CWA”) and that directed them to remove fill and restore the property to its natural state. When the parties were briefing this appeal, in a letter to plaintiffs, EPA abruptly withdrew its compliance order. The panel held that the EPA’s withdrawal of the order did not moot this case. EPA’s stated intention not to enforce the amended compliance order or issue a similar one in the future did not bind the agency, and EPA could potentially change positions under new leadership. In addition, the letter did nothing to alter EPA’s litigation position that it has authority to regulate the plaintiffs’ property. Accordingly, the panel could not conclude that it was “absolutely clear” ** The Honorable Jill A. Otake, United States District Judge for the District of Hawaii, sitting by designation. SACKETT V. USEPA 3 that EPA would not either reinstate the amended compliance or issue a new one, and, therefore, this case was not moot. The panel rejected EPA’s arguments to the contrary. The panel next addressed the district court’s refusal to strike a July 2008 Memo by EPA wetlands ecologist John Olson from the administrative record. The Memo contained observations and photographs from Olson’s visit to plaintiffs’ property. The panel held, pursuant to its review under the Administrative Procedure Act, that the district court did not abuse its discretion in permitting EPA to include the July 2008 Memo in the administrative record. Turning to the entry of summary judgment on the merits, the panel held that, under Northern California River Watch v. City of Healdsburg, 496 F.3d 993, 999–1000 (9th Cir. 2007), Justice Kennedy’s understanding of “significant nexus” in his concurring opinion in Rapanos v. United States, 547 U.S. 715 (2006), provided the governing standard for determining when wetlands are regulated under the CWA. The panel rejected plaintiffs’ arguments that Northern California River Watch v. City of Healdsburg was no longer law of the circuit. Applying the significant nexus standard, the panel held that the requirements of the concurrence and the applicable regulations were satisfied here. The panel concluded that EPA reasonably determined that plaintiffs’ property contained wetlands. It further determined that the record plainly supported EPA’s conclusion that the wetlands on plaintiffs’ property were adjacent to a jurisdictional tributary and that, together with a similarly situated wetlands complex, they had a significant nexus to Priest Lake, a traditional navigable water, such that the property was regulable under the CWA and the relevant regulations. 4 SACKETT V. USEPA
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