Blogosphere commentary on Sackett

Author:  Damien M. Schiff

The Legal Planet Blog had two posts yesterday on the Sackett case, from Professor Richard Frank and Professor Holly Doremus.  Professor Doremus suggests in her post that the Sacketts could have avoided all this trouble had they simply applied for a jurisdictional determination from the U.S. Army Corps of Engineers before commencing construction of their home.  Professor Doremus' proferred remedy for the Sacketts' predicament falls short, for at least three reasons.

First, the Sacketts believe that there is no federal jurisdiction over their property, and want to prove that point in federal court.  But just as the lower courts have held that judicial review of a compliance order is not available, the courts have also held that judicial review of Corps' jurisdictional determinations is unavailable.  (Indeed, the Ninth Circuit Court of Appeals held precisely that in another PLF case, Fairbanks North Star Borough v. U.S. Army Corps of Engineers). Thus, a Corps determination finding jurisdiction over the Sacketts' property would not, under current law, be judicially reviewable.  With that "positive" JD, the Sacketts would be very nearly in the same position as they are now:  told that they must get a permit to build a home, but not allowed in the court house doors to contest the need for the permit.

Second, the Sacketts had no reason to believe that they had wetlands on their property, let alone jurisdictional wetlands.  Professor Doremus' proposed remedy would appear to require that every prudent landowner in the nation ask the Corps to determine whether a Clean Water Act permit is necessary for the project.  That would overwhelm the Corps administratively and be completely unworkable in practice.

Third, and most important, Professor Doremus' solution doesn't respond to the precise due process violation that the Sacketts have been forced to bear.  A jurisdictional determination simply says whether the Clean Water Act applies to a given property.  But the Clean Water Act is not the direct cause of the Sacketts' injury; rather, it is the independent liability that attaches to the EPA compliance order that here causes the principal constitutional affront.  A jurisdictional determination is not an adequate means of judicial review for compliance orders, because a landowner cannot anticipate a compliance order:  EPA does not give landowners notice that a compliance order is in the offing.  But once the compliance order is issued, the recipient must comply or face stiff penalties.  And there is no way, under current law, for a landowner to get judicial review of that compliance order unless he (1) invites an EPA enforcement action, or (2) spends hundreds of thousands of unreimbursable dollars in a permitting process that he believes is totally unnecessary.  Neither option is constitutionally adequate, and Professor Doremus' proposed remedy does not cure the constitutional ill.