• Mark Ryan

EPA Files Motion to Dismiss in Sackett Appeal

EPA's response brief in the Sackett 9th Cir. appeal was due today. You will recall that the Supreme Court remanded the Sackett case to the District Court after ruling that the Sacketts had a right to pre-enforcement review of the 309(a) compliance order EPA issued to them in 2007. (Full disclosure: I worked on the Sackett case while at EPA.) EPA subsequently won the merits case against the Sacketts, with the District Court in Idaho holding that the wetland on the Sackett's property was jurisdictional and that the EPA was not arbitrary and capricious in issuing the 309(a) order in 2007.

Instead of filing a response brief, the EPA today filed a motion to dismiss on mootness grounds, arguing that there is no enforcement matter pending against the Sacketts after EPA withdrew the 309(a) order in a letter to the Sacketts dated March 13, 2020. PLF apparently has hinted that it may challenge the motion to dismiss, arguably to get back to the Supreme Court to cement in the Scalia rule. I suspect the 9th Cir. will be glad to let this one go now that EPA has withdrawn the underlying order and the Sacketts arguably are free to finally build their home.

For those who are interested, here's what the Sackett site looks like. These photos are from the EPA inspection report, which is part of the administrative record in the District Court case. Prior to importing the fill material, the Sacketts excavated a large amount of soft organic material from the site. The surface connection to Priest Lake in the background of these photos is cut off by a road behind the photographer.

If you would like to see a copy of government's brief, send me an email.

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