September 23, 2011

Sackett opening brief filed

By Sackett opening brief filed

Author:  Damien M. Schiff

Today PLF filed its opening brief in Sackett v. EPA, our Supreme Court case addressing the question of whether landowners have a right to challenge EPA's assertions of wetlands jurisdiction over their property.  Our brief addresses two related issues.  Did Congress intend to preclude landowners like the Sacketts from suing EPA in court immediately after receiving an EPA compliance order issued under the Clean Water Act?  If so, does that preclusion violate the Due Process Clause?  Now we wait for the government's response, which is due just before Thanksgiving.

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Sackett v. Environmental Protection Agency

Chantell and Michael Sackett received a local permit to build a modest three-bedroom home on a half-acre lot in an existing, partially built-out residential subdivision in Priest Lake, Idaho. The home poses no threat to water quality but federal EPA regulators nonetheless declared their property to contain a wetland and demanded they stop all work and restore the lot to its natural condition or pay fines of up to $75,000 per day. When they sued to challenge this order, EPA asserted they had no right to judicial review. The district court and Ninth Circuit Court of Appeals agreed, and tossed their lawsuit out of court. The United States Supreme Court unanimously reversed, ruling that failure to allow the lawsuit violated the Sacketts’ constitutional due process rights. They are now litigating their claims in federal district court in Idaho.

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