The Supreme Court today agreed to hear a case brought by the Pacific Legal Foundation, to decide whether an Idaho couple, Michael and Chantell Sackett, have the right to judicial review of an EPA “compliance order” that forces them to remove certain improvements on their land or face tens of thousands of dollars in fines per day.
When the Sacketts bought their land, they had no way of knowing that the EPA would declare their property to be a wetland, and thus subject to federal jurisdiction. They began preparations for building a home, but they only got so far as moving some dirt when the EPA issued its “compliance order,” declaring the property a wetland—meaning that the Sacketts were required to undergo the extremely expensive and time-consuming process of obtaining federal permits. And since they didn’t have those permits, they were required to pay to restore the property to its original state or pay an enormous fine—on the order of $25,000 a day.
The Sacketts asked for a hearing to challenge this order, but the EPA refused to give them one. And when they filed a lawsuit in federal court, the EPA answered that nothing in the law requires them to give the Sacketts a hearing. What’s more, the government argued that the Sacketts were not allowed to challenge the order in court, either. Instead, they’re required to sit and wait for the EPA to enforce its decision through a court order, and only then—after the fine has racked up to potentially millions of dollars—could the Sacketts argue that their property isn’t a wetland.
The Ninth Circuit ruled against them, but today, the Supreme Court agreed to hear the case and decide whether the Administrative Procedure Act allows the Sacketts to proceed in court and if not, whether this scheme is constitutional under the Due Process Clause.
You can read more about the case here. Congratulations to my colleague Damien Schiff, who represents the Sacketts.