Author: Damien M. Schiff
This week saw a disappointment and a new chance. On Tuesday, the Supreme Court denied our cert petition in Home Builders Association of Northern California v. United States Fish & Wildlife Service, a challenge to the Service's 850,000 acre critical habitat designation for 15 vernal pool species protected under the Endangered Species Act. The issue presented to the high court was whether the Service must take into account the cumulative (as opposed to incremental) economic impact of designating critical habitat. Although the issue sounds abstruse, it has real and bitter on-the-ground consequences for landowners across the country.
But on the bright side, today we've filed our cert petition in Sackett v. United States EPA, on behalf of an Idaho couple who have been put through the ringer by EPA for allegedly filling "wetlands" but who have been denied an opportunity to contest EPA's actions in a court of law. The Ninth Circuit ruled in the Sacketts' case that when EPA issues a compliance order against a landowner for alleged violations of the Clean Water Act, the landowner can get into court only by (1) inviting an enforcement action from EPA and thereby risking huge fines and penalties, or (2) going through the permitting process, without any guarantee of a permit, even when the cost of that process exceeds the value of the land. This is an issue that, we hope, the high court will accept for review.