Interesting case. Appears that the feds have sued the man civilly and criminally. Now he alleges that not only does EPA lack jurisdiction over his property, but also that EPA knew it all along and has chosen nevertheless unfairly to target him, make his life miserable, and ruin his business. The complaint cites the Ole Al “Crucify ‘Em” Armendariz comments, as well as EPA’s recent “same old same old” Sackett-related comments, as evidence of EPA’s cavalier enforcement attitudes.
The landowner may have a tough time on the Bivens action (generally one can only bring such a lawsuit for money damages against federal officials for violations of the Fourth Amendment). But his jurisdictional arguments may fair better.