The True Story Behind a Landmark Case

Pacific Legal Foundation attorneys spent 16 years litigating Sackett v. EPA, which ended with a 9-0 Supreme Court victory that reined in federal regulatory overreach. This is the story behind that landmark decision.

On May 3, 2007, three EPA officials showed up unannounced on the Sacketts’ residential lot in Priest Lake, Idaho.

Mike and Chantell Sackett weren’t there; but a small construction crew was working on their two-thirds-acre lot, which is a stone’s throw from other houses. The Sacketts planned to build a modest three-bedroom home there. The construction crew was moving gravel in preparation.

Until the government arrived.

The Sacketts’ contractors were ordered to stop work. The lot, the EPA announced, contained some wetlands. Spreading clean gravel was “filling” the alleged wetland, which the Clean Water Act prohibits without a permit.

One of the Sacketts’ workers asked the EPA what authority it had to shut down a job site. When asked for evidence the property contained wetlands, one EPA official vaguely said there was water on the property. (It was later revealed that the officials had received an anonymous “tip” about the property and had come from as far as Boise—an eight-and-a-half-hour drive away—to check it out.)

The next day Chantell spoke to an EPA official on the phone. When she protested that there were no wetlands on the lot, the official told her they were on the EPA’s wetland map. But after Chantell reviewed the map, she called the EPA and told them that her property was not on the map.

The EPA’s response? “Well, those maps aren’t accurate.”

A month later, the Sacketts received a formal-looking “Request for Information” from the EPA. Sent by certified mail, the 10-page document announced the EPA was “investigating” the Sacketts and issued a list of questions. Mike and Chantell were given 15 days to respond and told that “failure to provide all the information requested” may constitute a violation of the Clean Water Act, punishable by “an enforcement action and the imposition of civil and/or criminal penalties or fines.”

The questions the EPA demanded answers to were somewhat daunting, especially given that Mike and Chantell didn’t believe their property contained wetlands. For example:

10. Provide a list of name(s), address(es), and telephone number(s) of any person(s) involved with the discharge of dredged and/or fill material at the Site into waters of the United States, including wetlands. For all individuals named, identify his/her employer and the manager, if any, who instructed him/her to perform the work.

Were Mike and Chantell supposed to give the personal information of the construction crew members who’d been working on the property? Wouldn’t answering the question be seen as tacit admission that the crew had been filling a wetland, which the Sacketts did not believe was true?

In their response to the EPA, Mike and Chantell stressed that they had local building permits in hand. They also pointed out that their lot was surrounded by paved roads and developed properties. It wasn’t like they were trying to build in the middle of the wilderness.

Instead of backing down, the EPA ordered Mike and Chantell to remove the gravel, restore the alleged wetlands, plant wetlands vegetation, fence off the property, and then wait a few years. Only after a few years could they apply for a permit—a permit which, by the way, takes on average 788 days and $271,596 to obtain.

This wasn’t just a request. It was an order. And the EPA made clear that if the Sacketts didn’t comply, they would be saddled with fines of thousands of dollars per day for violating the order.

What’s even worse is that if the Sacketts had done exactly as the compliance order said, they still wouldn’t have been able to build their home. An EPA official eventually told an upset Chantell that she would likely never get a permit for the lot and should consider building elsewhere.

Naturally, the Sacketts wanted to contest the EPA’s finding that their lot contained wetlands. But the EPA said no. In a mash-up of Kafka and Joseph Heller’s Catch-22, the EPA told the Sacketts they couldn’t challenge any wetlands determination until after they applied for (and were denied) a wetland “dredge and fill” permit.

In other words: Once the EPA says your land contains wetlands, you have no choice but to apply for a permit to fill wetlands—even if you’re certain the land doesn’t actually contain wetlands.

It’s not necessary to accept everything as true. One must simply accept it as necessary.

After the Sacketts sued, the Ninth Circuit Court of Appeals agreed with the EPA. Fortunately for Mike and Chantell, the U.S. Supreme Court heard their case and ruled unanimously that they had a right to challenge the wetlands finding without having to follow the EPA’s dog-and-pony-show permit process.

That was in 2012. You’d think that after winning the right to make their case, things would move quickly for the Sacketts.

But the EPA, an $11-billion agency represented by a team of lawyers at the Department of Justice, can make the wheels of justice turn slowly.

After the first Supreme Court victory, the Sacketts’ case went down to the trial court. The EPA spent the next several years collecting samples and gathering evidence that they presented to the court as proof that the property had wetlands.

But the EPA’s “proof” was problematic.

In order to regulate anything, a federal agency has to meet two tests. First, the U.S. government can act only according to a power spelled out in the Constitution. And second, Congress must give the regulating agency the power to regulate. Here, the constitutional power is found in the Commerce Clause, which gives the federal government the exclusive power to regulate commerce among the states. And the statutory power is found in Section 404 of the Clean Water Act.

Exactly how does building a three-bedroom home in an Idaho subdivision involve commerce among the states? And where does the EPA or the Army Corps of Engineers find authority in the Clean Water Act, which never actually defines what a wetland is?

The EPA’s theory is that because the Sacketts’ lot is 300 feet from Priest Lake, which is large enough for recreational boating, building a home on the Sacketts’ lot would affect interstate commerce.

Never mind that the property is in a residential subdivision, separated from the lake by a road and a block of homes, and has no meaningful hydrological connection to Priest Lake. In the EPA’s view, that’s close enough—at least, close enough for government work.

If the EPA had its way, millions of American homeowners could wake up one morning and find themselves in the exact same position as the Sacketts: at the wrong end of a Clean Water Act investigation, with little hope of proving your innocence.

On October 3, 2022, PLF senior attorney Damien Schiff argued the Sacketts’ case at the Supreme Court a second time—a decade after he first took the case to the Court. This time he challenged the EPA’s determination that Mike and Chantell’s property contains federally protected wetlands.

The Supreme Court’s decision came on May 25, 2023: A 9-0 ruling rebuking the EPA’s claim to limitless regulatory authority and determining that the Sacketts’ land is not subject to the Clean Water Act.

The impact of the Sackett decision

The Sackett II decision was immediately hailed as a “landmark for liberty” (Wall Street Journal editorial board) that “buttressed the rule of law” (Washington Post columnist George Will). By returning the Clean Water Act to its original purpose, the Supreme Court freed up millions of acres of buildable land and reined in the administrative state.

James Burling, vice president at Pacific Legal Foundation, told Federal Newswire that the Sackett decision draws a clear line in the sand: Federal agencies must follow the law. “When you have a regulatory scheme where ordinary people cannot figure out if their property is something they can use effectively, or if their use lands them in federal prison, that’s a regulatory scheme that has been oppressive and tyrannical for decades now.”