• Mark Ryan

Sackett 9th Circuit Oral Argument

Updated: Nov 23, 2020

Remember Sackett? Yes, that Sackett. Well, it's still alive after all these years, at least until the the 9th Cir. rules. [Full disclosure, I worked on the Sackett case while at EPA.]

Quick summary. EPA issued the initial administrative order in 2007, which was later amended, but then ultimately appealed to the Supreme Court. The Court held that EPA section 309(a) compliance orders are final agency action subject to pre-enforcement review. The case was sent back to the District of Idaho, where that court held that EPA was not arbitrary and capricious in issuing the order. The Sacketts appealed. After the 2020 WOTUS rule went final, EPA withdrew the 309(a) order, and argued that the case is now moot. The Sacketts disagree.

Oral argument was held on November 19. The panel was made up of Judges Gould, Friedland and Otake. Friedland was very active in questioning the DOJ attorney about the mootness issue, and was clearly skeptical that the case was moot so long as EPA did not withdraw the JD that underpinned the 309(a) order. DOJ argued that is no formal JD (only the Corps does those). The staff records finding jurisdiction do not constitute final agency action. The Court also struggled with the effect of the 2020 WOTUS rule, and I suspect they had the imminent change of administrations in the backs of their minds. At the end of the argument Judges Gould and Friedland both inquired regarding sending the case back to mediation for possible settlement. I suspect they don't want to write an opinion in this case.

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